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Virgin Excavated Natural Material (VENM) - NSW

HIA has clarified the process to classify and dispose of virgin excavated natural material (VENM) in NSW

This information sheet has been prepared to assist members who supply or generate excavated material to correctly classify that material, if required, as virgin excavated natural material (VENM).

What is VENM?

VENM is defined within the Protection of the Environment Operations Act 1997 (POEO Act) as:

natural material (such as clay, gravel, sand, soil or rock fines):
  • that has been excavated or quarried from areas that are not contaminated with manufactured chemicals, or with process residues, as a result of industrial, commercial, mining or agricultural activities and
  • that does not contain any sulfidic ores or soils or any other waste

and includes excavated natural material that meets such criteria for virgin excavated natural material as may be approved for the time being pursuant to an EPA Gazettal notice.

VENM is a waste that has been pre-classified as general solid waste (non-putrescible).

In summary, VENM is uncontaminated and chemically stable soil (e.g. not acid sulfate soil) that exists in its natural undisturbed state. Any disturbance of the soil or contamination from past or previous land uses, removes the possibility of a VENM classification.

If the above definition for VENM is met and the excavated material has been properly classified, it can be reused on or offsite without chemical testing and without an EPA Licence.

How do I classify excavated material as VENM?

Excavated material must meet all aspects of the POEO Act definition to be classified as VENM, and generators of excavated materials must consider the following questions:

  1. Are manufactured chemicals or process residues present?
    Generators of VENM must assess the past and present activities on the site. A material can only be classified as VENM if it has been excavated from an area that is not contaminated with manufactured chemicals or process residues as a result of industrial, commercial, mining or agricultural activities. Read a list of land uses and activities that could result in contaminants being present in excavated material.
  2. Are sulfidic ores or soils present?
    Generators of excavated material should review the relevant acid sulfate soil risk maps held by the local council. VENM cannot contain sulfidic ores or soils.
  3. Are naturally occurring asbestos soils present?
    Generators of excavated material should review naturally occurring asbestos risk maps on the SafeWork NSW website. VENM cannot contain naturally occurring asbestos soils.
  4. Is there any other waste present?
    VENM cannot contain any other waste or be made up of materials that have been processed in any way.

VENM cannot contain any other waste or be made up of materials that have been processed in any way.

The EPA provides a template certificate to assist generators, transporters and/or receivers of VENM to have confidence that a range of relevant factors have been considered in the classification of excavated material as VENM. A link to the template certificate is provided on the EPA’s VENM web page. The template certificate can be completed by the generator of the excavated waste by addressing the above questions. It is not necessary to engage a specialist environmental consultant to do this.

Is chemical assessment necessary?

Classification of excavated material as VENM requires certainty that all aspects of the POEO Act definition are met. If all aspects of the POEO Act definition are not met following the assessment, then chemical testing would be necessary to find out whether an excavated material is contaminated or not. The chemical testing is to ascertain whether the excavated material is contaminated with manufactured chemicals or process residues, or whether it contains sulfidic ores or soils.

Where an excavated material cannot be classified as VENM, it may be eligible for reuse under the excavated natural material order and exemption.

Disposal of VENM

Generators of VENM can consider options for the re-use VENM on or off-site, subject to required government approvals, before deciding to dispose of it.

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) allows certain earthworks to be undertaken on a site as exempt or complying development. If the provisions of the Codes SEPP do not apply, a development application for the earthworks can be made to the relevant consent authority.

If disposal is the preferred option, the material can be taken to a waste facility, such as a council tip, licensed by the EPA to accept VENM.

Prior to transporting the material to a waste facility, the generator of the excavated waste should ask for a copy of the facility’s environment protection licence or check the EPA’s public licence register to ensure that the facility’s licence states that it can accept VENM. The EPA’s public register is located at http://www.epa.nsw.gov.au/prpoeoapp/.

It is an offence under section 143 of the POEO Act to transport waste to a place that cannot lawfully receive that waste. Both the transporter of the waste and the owner of the waste can be prosecuted for this offence. Significant penalties apply, with both the person that transports the waste and the owner of the waste, both guilty of the offence. The penalties are set out under Section 143 (1) of the POEO Act, as follows:

Maximum penalty:
  1. in the case of a corporation—$2,000,000 (if the offence involves asbestos waste) or $1,000,000, or
  2. in the case of an individual—$500,000 (if the offence involves asbestos waste) or $250,000.
    Note. An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation.

The EPA advises that generators and transporters of excavated materials keep accurate written records of the details of the waste (classification, name and address of its origin and quantity) and copies of waste dockets/receipts for the waste facility (date, time of delivery, name and address of the facility, its ABN and contact person).

Note: Refer to the NSW Government Legislation website for the up-to-date copy of all legislation.

To find out more, contact HIA’s Planning and Environment team.

Email us

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