Can Excavated Soil Be Reused on Another Construction Site?

When Can Excavated Soil Be Reused?

VENM (Virgin Excavated Natural Material). VENM is natural material such as clay, gravel, sand, soil or rock fines, excavated from areas not contaminated with manufactured chemicals or process residues from industrial, commercial, mining or agricultural activities. It must contain no sulfidic ores or soils, and no other waste. VENM that genuinely meets the definition can generally be reused as fill without a specific EPA resource recovery exemption. Other requirements still apply, such as the landowner’s consent and any development consent or planning approval for the filling work. Receiving sites often ask for evidence or a certificate of the soil’s origin, so confirm the current expectations with your consultant.

ENM (Excavated Natural Material). ENM is naturally occurring rock and soil that is at least 98% natural material by weight and doesn’t meet the VENM definition. It can be reused, but only under the EPA’s ENM order and exemption, which set testing, quality and use conditions.

No harm to the environment or health. Whatever the category, applying soil to land must not cause pollution or harm. The EPA’s exemption notes say that the person applying soil to land should assess whether it’s fit for its intended purpose, and offences such as polluting land still apply even where an exemption is in place.

The EPA Resource Recovery Order and Exemption

A resource recovery order and exemption are legal instruments issued under the Waste Regulation that allow certain waste materials to be recovered and reused, with conditions designed to manage the risk. They work as a pair. The order sets conditions for the supplier, and the exemption sets conditions for the consumer, the person who receives the material and applies it to land. Both can be used without applying to the EPA, but every condition must be met for the reuse to be lawful.

For ENM, the key conditions include:

• What qualifies. The material must be at least 98% natural material and must not meet the VENM definition. It can’t be taken from a hotspot, can’t have been processed, and can’t contain asbestos, acid sulfate soils, potential acid sulfate soils or sulfidic ores.
• Testing and certification. The supplier must prepare a written sampling plan, sample and test the material against the order’s chemical criteria using a NATA-accredited (or equivalent) laboratory, and provide a written statement of compliance.
• Permitted use. ENM can only be applied to land as engineering fill or for use in earthworks.
• Records. The consumer must keep a written record of the quantity received and the supplier’s name and address for six years, and make it available to the EPA on request.

The receiving site must also hold any other approvals it needs. The exemption doesn’t override development consent conditions.

When Reuse Is NOT Permitted

General solid waste, restricted solid waste, hazardous and special waste. Soil classified in any of these categories generally can’t be reused as fill on another site. It needs a disposal or treatment pathway. The main exception is where the EPA has issued a specific order and exemption for that particular material, which is only available where no general order and exemption already covers the reuse. It requires a formal application, and the reuse must be genuine, beneficial and not harmful.

Soil without full classification and testing. Soil from a site with a history of industrial or commercial use, or from fill of unknown origin, can’t be assumed to be VENM. Without classification and the right testing, reuse isn’t safe or lawful.

Soil that is excluded from the ENM definition. This includes processed material, hotspot soil and soil containing asbestos or acid sulfate soils.

Unsuitable receiving sites. The ENM criteria in the order aren’t tailored to the receiving site’s land use, but the consumer remains responsible for making sure the fill is fit for purpose and that the work is lawful and consistent with the site’s development consent. If the receiving site has a sensitive use, such as a school, childcare centre or residential development, check its consent conditions for any additional requirements.

Practical Steps for Contractors Wanting to Reuse Soil

1. Confirm classification with an environmental consultant. This starts with a site history review and, where needed, sampling and laboratory testing. See our guide to excavated soil classification in NSW.
2. Check whether the order and exemption conditions are met. For ENM, that means the material meets the order’s criteria and the receiving site will use it only as engineering fill or in earthworks. Check that the order and exemption are still current, because the EPA can amend or revoke them at any time.
3. Confirm the receiving site. Make sure the landowner agrees in writing, the use is lawful and any development consent or approval allows the fill. A signed section 143 notice from the receiving landholder is one way to document it.
4. Document the chain of custody. Keep a record from the source site to the receiving site, including quantities, dates and test results.

Why Documentation Still Matters for Reuse

Reuse doesn’t mean the paperwork goes away. The EPA can ask to see records for reused soil, as the ENM exemption requires, and records are the first thing you’ll need if a question arises.

Good records also help if contamination issues appear later at the receiving site. A clear trail showing the soil’s classification, test results, origin and destination makes it much easier to show where the soil came from, where it went and what it was tested for. Without it, you may struggle to show where a problem originated.

When to Consider Disposal Instead

Reuse isn’t always the lower-risk option. Consider disposal if:

• Classification is uncertain. If the soil’s history is unclear or testing hasn’t been done, disposal at a facility licensed for its classification is the safer pathway.
• The receiving site’s conditions are unsuitable. If the site lacks the consent, the land use is sensitive or the soil isn’t fit for the intended purpose, reuse can create more problems than it solves.
• The timing doesn’t work. Testing and certification take time, and a project that needs the soil moved quickly may be better served by a confirmed disposal pathway.

EBH Environmental’s soil disposal service offers classification-led disposal pathways, approved facility acceptance and documented transport for construction and civil projects.