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Legal and risk management issues associated with excavated material management

A. I. Petersen PricewaterhouseCoopers Legal J. V. S. Smith PricewaterhouseCoopers Legal ABSTRACT: Tunnel excavation and the handling of excavated material has the potential to generate significant legal risk. Inattention to sound management practices in developments where the mobilisation of large volumes of either clean or contaminated material combine with the often sensitive location has the potential for significant environmental damage. In Australia and international jurisdictions damage to the environment can result in financial penalties and in some instances criminal prosecutions. Excavated material has the potential to generate legal risk both at the point of excavation, transportation and the final site of disposal. These arise due to either breaches in licence conditions, development consents or inappropriate action of employees generating environmental pollution of which managers can be vicariously liable. With continued implementation of the London Convention, in particular the 1996 Protocol, increasing pressure is being placed on terrestrial disposal sites for dredged and excavated material. With legislative priority directed towards resource recovery rather than disposal, and a distinct move from the practice of waste management to that of resource utilisation, major excavation projects are becoming primary resource generations rather than traditional resource depletors. 1 INTRODUCTION One of the most important environmental issues with any significant infrastructure development is the management issue associated with the strategy for handling, processing and disposal of excavated material. Traditionally considered a waste management issue on any significant road or rail project where excavated material is created, developing ideas around employing a better solution by valuing the excavated material being generated in recent infrastructure projects has identified significant financial and regulator incentives. Within the environmental legislative regime prosecutions for environmental offences within Australian jurisdictions have become increasingly stringent. Tunnel construction in the vicinity of fragile aquatic environments (which tunnels are often required to transverse) or that of large urban developments (which major tunnelling projects also often neighbour) have the potential to generate significant adverse community opinion and environmental damage. This paper considers the risk management issues of infrastructure project developing and excavated material strategy as a means by which to create a value in the spoil generated by the project. This paper will consider the developing judicial and recent New South Wales government response to effective excavated material management, addressing excavated material disposal and reuse initiatives both on a local and international perspective. 2 LEGAL RAMIFICATIONS FOR MISMANAGEMENT OF EXCAVATED SPOIL From an environmental regulatory perspective, the generation of environmental pollution, the breach of development consent, licence condition or contractual obligations between private parties are the predominant legal risks that can result from the mismanagement of excavated material. Of significant concern to project managers is the legal risk garnered from the principle of vicarious liability. Ineffective or unregulated control of excavation activities would be seen by the courts as inadequate discharge of an employers obligations to supervise their employees. With reference to an environmental pollution incident, for example, the excavation of contaminated material which results in the pollution of waters from negligent soil handing, transport or dredging activities would find the employer responsible for the employees activities (s 120(2) Protection of the Environment Operations Act 1997 (NSW)). The above legal issues can be demonstrated from the following case law. 2.1 Hair v Sydney Harbour Tunnel Company Limited In Hair v Sydney Harbour Tunnel Company Limited [1989] NSWLEC 27 (5 April 1989) the Sydney Harbour Tunnel Company Ltd was charged with 3 offences under the then Clean Waters Act 1970 (NSW) (replaced by s120 of the Protection of the Environment Operations Act 1997 (NSW)) and 3 of-

fences under the then State Pollution Control Co mmission Act 1970 (NSW) . The company pleaded guilty to all 6 charges. Specifically, it plead guilty to charges that on 11, 13 and 14 April 1988 it polluted the waters of Sydney Harbour in breach of the Clean Waters Act and that on 11, 13 and 14 April 1988 it contravened a condition of its licence issued under the Commission Act. The then s.17A of the State Pollution Control Commission Act allowed the Commission to issue licences with respect to the pollution of waters within the meaning of the Clean Waters Act 1970 (NSW). In this regard s. 16(1) of the Clean Waters Act 1970 (NSW) provided: "A person shall not pollute any waters or cause or permit any waters to be polluted". Condition 2 of the licence in question provided that a coffer dam construction area was to be totally enclosed by means of a floating boom adequately secured at two points on the shoreline in such a manner as to allow it to rise and fall with tidal movement. His Honour Cripps J identified that on the relevant dates there was no boom or curtain in place as required by the licence conditions and that while the boom and curtain, were generally in pos ition, they did not enclose the area satisfactorily. As a result, sandstone fines were deposited in the Harbour causing the waters to become turbid. Notwithstanding the dumping of material into the Harbour there was no environmental damage other than temporary adverse visual impact. The Judge recognised that the while Company itself and corporations undertaking work for the Company were experienced in major construction projects the breach of their licence condition resulted in fines in total of $27,030.00 with an order to pay the cost of the Prosecutor. 2.2 Environment Protection Authority v Port Kembla Copper Pty Ltd In more recent case law the contravention of a pollution licence has been seen as a breach of public trust Environment Protection Authority v Port Kembla Copper Pty Ltd [2001] NSWLEC 174. In this case each of the five contraventions, by Port Kembla Copper of their environment protection licences discharge limit for Sulfur dioxide, (brought in a criminal environmental action by the EPA), was regarded as serious. They were fined a total of $116,000 plus the legal costs of the Authority. Chief Justice Pearlman recognised the five exceedances had all occurred during commissioning of a new

copper smelter. Nevertheless, substantive fines were imposed even though:


There were no particular further practical measures that the defendant could have taken to prevent, control abate or mitigate the harm; The degree of environmental harm was not significant; and There was not, beyond a reasonable doubt, any effect on human health.

The judge went on in her judgment to place no weight on the Companys statement of regret over the breaches, commenting that it, "hardly indicates a genuine remorse. To the contrary, the evidence was directed to showing that the risks were adequately assessed, and that, during a period of commissioning, incidents of the nature of those which occurred were to some degree inevitable. An acid plant risk assessment had been carried out by the Companys plant manager at the time of the incidents which conformed generally to the risk management standards set by Standards Australia. The Manager also said that a "large" number of risk assessments had been carried out by them and that they were being "continually updated in light of information gained". The Company also claimed that the acid plant risk assessment process had been carried out in a reasonable manner, and in particular that risk assessment training had been provided by a risk management expert to risk assessment team members prior to carrying out risk assessments. The company denied that the acid plant risk assessment was inadequate having regard to current standards and claimed that none of the incidents were foreseeable in these circumstances. This case demonstrates that simply showing ev idence of complying with standard risk management approaches will not be sufficient to avoid the prospect of criminal environmental action, regardless of the degree of environmental harm. The increasing trend for development approvals and licences to oblige on-going monitoring and assessment of an operations activity requires the activity to be continuously and actively managed and any continuing legal obligations to be addressed. 2.3 Carinya Cove Pty Ltd v Nyholt Constructions Pty Ltd Carinya Cove Pty Ltd v Nyholt Constructions Pty Ltd 22/10/1998 QldCA 3938/98 involved a claim by a company that contractors had breached contractual

terms by placing spoil on land owned by another developer, so that it incurred loss in removing it. Such actions can generate legal risks such as negligence or acts of trespass. With major infrastructure developments in heavily developed areas contractual situations can become complex as described by the following factual situations in this case.

3 EXAMPLES FROM MAJOR SYDNEY TUNNELLING PROJECTS A variety of tunnelling operations have been undertaken in the Sydney region over the last decade. In this time environmental legislative developments have produce a stringent regime of environmental control. More significant projects will inevitably require, for example, development approval at both a State and Federal level, involving extensive environmental impact assessment, community consultation and environment licence applications. Waste management plans obtain a high priority in the assessment process, requiring waste disposal options for excavated material to be clearly identified. Development consent has often shown to be conditioned on the establishment of sound waste management practices with requirements to ensure reuse of this material is implemented as a first priority. The following tunnelling projects provide an example of some of the excavated material management approaches undertaken in the Sydney region. 3.1 Sydney Harbour Tunnel The Sydney Harbour Tunnel was seen as, an innovative solution to Sydneys cross harbour traffic problems. It makes maximum use of the existing freeway network, being designed to minimise environmental disturbance both during construction and on completion, and should satisfy Sydneys cross harbour requirements well into the next century (Nelson 1990). The tunnel consisted of 2 km of 11 m diameter tunnels. This project was the first of its kind in Australia, the project would be undertaken in a particularly environmentally sensitive (Cunneen, 1990). The construction of the tunnel itself as well as other excavations associated with the development was estimated to produce a total of 1,000,000 m3 of spoil. The Environmental Impact Statement identified that the excavated sandstone will be used for armouring the submerged tunnel, the remainder will be dumped at sea (Smyth 1987). The designated dumping ground was 10 km out to sea from Sydney Heads. Sandstone was also utilised in the development for the construction of temporary features such as a coffer-dam allowing the construction of the Tunnel Ventilation Station and other such works (Lukins 1990). So as to minimise traffic movements in the North Sydney Municipality, dredge material was also proposed to be dumped at sea. In Australia the disposal of dredged and excavated material at sea has becoming increasingly stringent. The Environment Protection (Sea Dumping) Act 1981 (Cth) enables Australia to fulfil its international responsibilities under the London Convention

As part of contract works, Nyholt was required to remove unsuitable excavated material, which was designated for a future golf course and to be relocated else where on the site. In breach of the contractor's obligations, Nyholt placed the unsuitable material not on the land designated by Carinya, but on residential land which was being developed by Ingles Corporation Pty Ltd. Ingles Corporation Pty Ltd had entered into a contract for the performance of earth works on that land with Golding Contractors Pty Ltd. The Superintendent under that contract was Kinhills. The placement of the unsuitable fill material in an uncontrolled manner resulted in Golding Contractors Pty Ltd claiming a variation under their contract and Kinhills claiming extra costs associated with additional work. Further under the contract, Nyholt was obliged to place certain fill on land which was immed iately adjacent to the primary development in question and to compact that fill. In breach of their obligations under the contract, Nyholt failed to compact the fill and left it in an uncontrolled state. Again, this breach by Nyholt resulted in extra work having to be performed by Golding Contractors Pty Ltd under its contract with Ingles Corporation Pty Ltd.

The facts revealed spoil was incorrectly dumped on land owned by Ingles Corporation Pty Ltd and not where Carinya directed it to be placed. For this reason in the contract as between Carinya and Nyholt the latter was an independent contractor and Ingles Corporation Pty Ltd could not make Carinya liable for Nyholt's actions. With major tunnel construction projects having operational lives ordinarily in excess of five years, the potential legal ramifications of incorrect handing of excavated material as identified in the case above needs to be considered and managed, especially when contaminated material is in question or activities are being undertaken in environmentally sensitive areas.

of 1972. The 1996 Protocol to the London Convention at the Special Meeting of Contracting Parties was signed by Australia in March 1998 and ratified in December 2000. The Protocol brought developments international environmental law and the law of the sea into the London Convention. A major aim of the 1996 Protocol is to have less and cleaner waste dumped at sea (ANZECC 1998). These aims will be achieved through the implementation of more rigorous assessment regimes. Under the Protocol applicants will be obliged to conduct a waste prevention audit; formulate alternative waste management strategies; screen all candidate wastes against the [Protocols] established action list; assess the impact of dumping on the marine environment and monitor the results (ANZECC 1998). 3.2 Parramatta Rail Link The Parramatta Rail Link proposes a new 28 km railway linking Parramatta and Chatswood via Epping with a majority of the route to be located underground. It is intended to provide for the growth of key regional centres in Western Sydney, Macquarie Park and Northern Sydney and facilitate future possible extension of the rail network to North-West Sydney. It is estimated that approximately 2,200,000 m3 of spoil will be generated from the combined tunnel and non -tunnel excavation operations. The material will be predominantly comprised of aggregates of sandstone and shale and unconsolidated sand and clay sediments. The bulk of the excavated spoil is believed to be uncontaminated, a reuse strategy of clean spoil removal is proposed to allow the material to be reused for beneficial purposes in the construction industry, land management programs or landfill (Parramatta Rail Link, 2001). Potential reuse or disposal sites of the excavated material were assessed according to their location, access by major arterial roads or rail, proximity to residential areas and ability to accept large volumes of spoil on a 24 hour basis. Parramatta Rail Link has committed to a "whole of project" spoil transfer strategy to address and manage spoil reuse or disposal. This strategy will have the specific objective of co -ordinating the use of and managing associated impacts of reuse sites (ERM Mitchell McCotter & Kinhill, 1999). Road transport has been identified as a practical option for the movements of spoil generated from the site of construction to that of final disposal/reuse. Extensive investigations were undertaken by the proponent to assess all of the available options, with the aim of minimising environmental, traffic and other community impacts. It was identified that 2 of

the Parramatta Rail Link construction sites supporting tunnelling operations would have the potential to accommodate the removal of spoil by rail. The majority of supporting sites however, have limited benefit in the transport of spoil by rail because double handling costs would result as road transport would still be required either to or from the local rail network and the end point of disposal. The Parramatta Rail Link proposes to maintain industry competition with respect to spoil transport and reuse contracts through a detailed spoil management strategy. This spoil strategy will be developed through the construction tendering process. This will allow the best strategy for spoil management to be developed by identifying appropriate spoil reuse and transport opportunities, alternatives to road-based transport of spoil and minimised environmental impact (Parramatta Rail Link, 2001). 3.3 New Southern Railway The New Southern Railway Project involved the construct ion of the 10 km of heavy gauged rail line substantially underground, between Central Station, the East Hills Railway Line and Sydney Kingsford Smith Airport. The project was undertaken by the State Rail Authority, to allow assessment of the project under Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) and State Environmental Planning Policy No. 43 (gazetted on 4 November 1994, to specifically deal with the new rail line). In effect, this allowed the project to be assessed as a single dev elopment rather than requiring planning consents and subsequent controls from the 5 individual councils, which the project transects. The Environmental Impact Statement for the proposal identified that approximately 1,700,000 m3 of spoil would be generated as a result of the project. It was identified (Mitchell McCotter, 1994) that the bulk of the excavated material would consist of clean sands, clays and sandstones, however, up to 300,000 m3 of potentially contaminated spoil was identified primarily within the vicinity of the airport and the Cooks River crossing. The contaminated spoil raised questions and concerns in relation to their identification, handling, treatment and disposal arrangements (Kibble, 1995). Contaminated spoil was proposed to be disposed of at the Castlereagh Waste Depot unless onsite remediation enables the spoil to be disposed at a clean landfill (Kibble, 1995). The Environmental Impact Statement (EIS) prefers that all spoil be transported to disposal sites by road. Average daily truck movements as calculated in the EIS would range from 35 at the Wolli Creek work site to in excess of 250 at the Tempe Reserve work site. The EIS has looked at alternative spoil transport methods,

specifically the use of rail transport and barge transport. The use of rail was dismissed in the EIS due to the greater costs and the need to transfer spoil by truck from the removal site to the nearest station. Barge transport is not proposed as the EIS considers that there are no adequate loading facilities on either side of Botany Bay and that there would be clearance problems with the bridges in the Cooks River (Kibble, 1995). The preferred disposal site at the EIS stage was that of Kurnell landfill. The Department of Urban Affairs and Planning, however, identify that, while the large volume of spoil to be created by the project makes it inevitable that landfill disposal would be required, efforts should be made to reuse as much clean fill as practicable (Kibble, 1995). The EIS proposed that the sands tone proportion of fill (approximately 0.4 million cubic metres) be disposed of via a recycling operation at Seaforth. The EIS also proposed that a portion of the spoil could be disposed of or reused by Government agencies or Councils (Kibble, 1995). 3.4 Northside Storage Tunnel In May 1997 the Premier of NSW announced the NSW Governments waterways package. The package consisted of, a $3 billion program aimed at significantly improving water quality in the States harbours, river and beaches (Holliday, 1997). The proposal by Sydney Water was to construct a tunnel to intercept, store and transport wet weather sewerage overflows from the Northern Suburbs Ocean Outfalls Sewer. The projects involved the construction of a primary tunnel, 15.8km long and with a diameter of 6 m, as well as various adjoining tunnels, drop shafts, ventilation and access shafts. The EIS stated that approximately 1,000,000 m3 of spoil would be excavated during the construction, the bulk of this being crushed sandstone excavated from shafts and tunnels. The preferred soil management strategy identified by Sydney Water at the EIS stage was based on a preference for beneficial reuse, certainty that the disposal site would be available when required, cost, community and environment impact, and lifecycle assessment of energy consumption and greenhouse gas generation. Following consideration of these criteria the following options were ident ified:

Barge transport to White Bay Dock, unloading to road or rail transport for haulage to beneficial use opportunities as and when they arose. (Holliday, 1997).

As the development was undertaken, among prime Sydney real estate, residential concerns about noise generated from the haulage from spoil material was of major concern. As a result, the recommended conditions of approval from the Director General of the Department of Urban Affairs and Planning identified consultation with the effected communities and identification of transport routes to all disposal sites as essential. Further, where practicable, truck access was to be restricted to state and regional roads and all clean and/or treated spoil was to be reused or recycled wherever possible and cost effective. In addition on-site reuse of spoil generated from construction activity was to be maximised in preference to an importation of fill. It was also recommended by the Director General that, in the event that spoil volume generated from tunnelling exceeds the total capacity at the disposal sites, tunnelling shall cease until such a time as additional capacity is formally secured (Holliday, 1997). 100% of the clean sandstone spoil material from the excavation of the tunnel was used in a State Rail project at St Marys. The spoil was transported from Little Manly point to White Bay by barges, then to St Mary by train (Sydney Water 2000). In res idential areas where adverse community opinion to removal of spoil by trucks arose, the use of temporary conveyor systems to load 1,000 t barges for spoil disposal was proposed. The material was to be routed to a quarry where it would be ground into aggregate (Holliday, 1997). The barge loading facilities were also, under strict operating guidelines because of the need to protect Seagrass, Fairy Penguins and other ankle high birds that live in the area. The extent and the duration that a shadow could be cast on Seagrass beds by any particular barge was also regulated including, the stopping of loading one hour before dusk to protect birds (Holliday, 1997). 3.5 Eastern Distributor The Eastern Distributor involved the construction of a tolled motorway, which p roposed to link the Cahill Expressway in the north of the city of Sydney with that of General Holmes Drive in the south. The project was commissioned by the NSW Road & Traffic Authority, to complete an important link in Sydneys emerging orbital road network which would provide a greatly improved transport group for passenger, freight and commercial movements and en-

Onshore storage for beneficial reuse of clean fill for construction sites; Direct barge transport to Botany Bay prior to reuse as clean fill for construction of Sydney Ports Corporations Port Extension; and

hance economic efficiency, international state and regional level (Kibble, 1997). The major benefits of construction of the eastern distributor were identified in the EIS as being:
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posal sites for handling stockpiling and disposal of all spoil; The truck routes to be used had to be detailed as part of the environmental management plan for the construction of the project; No spoil was to be disposed of in the ocean; and The RTA was to prepare a solid waste management and reuse strategy, to incorporate waste minimis ation principles.

The removal of traffic conflicts in the inner eas tern suburbs with improved traffic flow and safety for pedestrians, cyclists and motorists; The improved public transport and cyclist opportunities, while providing support for urban development and renewal initiatives and increased employment in and around the central industrial area in Sydney (Kingsford Smith) Airport; The support to state government transport and land use strategies; and The provision of potential for improved environmental amenity of residents in the area above the tunnel (Kibble, 1997).

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The environmental impact assessment stage identified that approximately 180,000 m of sandstone and 70,000 m of sand over the two year period would be generated from the tunnels' excavation. The report by DUAP was that the RTA had made a commitment to the recycling and reuse of surplus spoil in the site and had indicated that significant quantities were expected to be recycled for use on other developments. Sites for disposal of surplus material were to vary according to the rate of the development activity and the volume of material available elsewhere. One of the sites identified was in the Port Botany area where surplus material would be stockpiled. Spoil that was not able to be recycled was to be transported to approved landfill sites or off-site recycling depots (Kibble, 1997). Findings in the project investigation stage identify that existing fill material within the construction path contained concentrations of h e a v y m e t a l s . T h i s r e s u l t e d i n implications for standard spoil disposal and consequential consultation with the NSW Environment Protection Authority to assess the requirements for disposal to approved landfills. The greatest concerns raised by local councils in the area was with regards to the likely increase in traffic from construction vehicles as well as the transportation of spoil to the site of final disposal. The DUAP stated that they fully supported, maximising recycling opportunities and considered that the impacts of soil disposal and waste management could be managed by suitable conditions of consent attached to any approval. It was recommended that the following conditions apply:

The EIS left open the option for disposal of spoil on the ocean bed. This is not a method of disposal approved by the NSW EPA. The EPA would prefer that the airport motorway group consider this spoil as a valuable resource for which a market needs to be found. Should the ocean disposal be pursued, the Commonwealth environmental approvals would be required. The suggested method of mixing contaminated spoil with non contaminated spoil was not favoured by the NSW EPA and the EPA would not consent to such an approach (Kibble, 1997). The primary issue here was in relation to the implications of insufficient mixing of the material and the creation of hotspots within the mix. While any significantly contaminated material should go to landfill with the approval of the EPA, material with low levels of contamination will probably be suitable for placement under the road or for other low sensitive land uses (Kibble, 1997). A large majority of sandstone excavated during the construction was utilised in the landscaping of the Homebush Olympic site. 4 INTERNATIONAL TUNNELLING OPERATIONS Examples of major international tunnelling operations provide insight into similar obstacles on different scales both legislatively and physically which have the potential to generate legal risk in the instance of ineffective management practices of excavated material. 4.1 Boston Third Harbour Tunnel, Massachusetts In 1996 the Massachusetts Highway Department in cooperation with the United States Department of Transport Federal Highway Administration undertook the construction of a third harbour tunnel connecting south of Boston to Logan International Airport. This construction consisted of an emersed tube tunnel, which crossed the Port Point Channel as well as a bridge crossing the Charles River Basin. Construction of these crossings required the dredging of approximately 550,000 m3 of sediment. As a result of the volume of sediment to be generated, the Department of Environmental Protection expressed

The RTA was required to prepare as part of the spoil management plan details of proposed dis-

concerns of the potential to cause implications for the capacity of local landfills. As a result high priority was given to the potential for beneficial reuse of excavated soils. The basic objectives of the Material Disposal Program are to maximise beneficial use with minimal impacts to the environment (Chin & Barnett 1996). The beneficial use program identified that the sediments to be dredged were suitable for use as fill material in the closure of the City of Boston landfill at Spectacle Island and the for construction of a public park. As part of the EIA for these constructions, investigations were undertaken as to the nature and quality of the sediments to be dredged. These investigations found elevated concentrations of Polycyclic Aromatic Hydrocarbons (PAH) as well as lead, mercury, cadmium and chromium. These contaminants were limited to the upper stratum of the channel bed that being to the depth of approximately 3 m, whereas deeper sediments were given a clean bill of health after chemical and biological testing. In excess of 115 sediment samples were obtained in the investigation. The presence of contamination was contributed to by several sewerage overflow points as well as stormwater outlets in the region and reclamation of the channel at various times during its history. The sediment quality data obtained from the Fort Point Channel show that the surface sediments exceeded the chemical concentrations estab lished by the risk assessment for certain constituents particularly total petroleum hydrocarbons (TPH) and total lead (Chin & Barnett 1996). Re-evaluation of the risk management strategy concluded that the potential risk of placing the dredge sediments at Spectacle Island if managed successfully would not generate any significant risk which obtained agreeance from the Department of Environmental Protection (Chin & Barnett 1996). Due to the appreciable distance of Spectacle Island from the construction site an issue which needed to be addressed was that of transport. Agreements were made with the local community that the trucking of this material would not be undertaken. This resulted in transport by barge as being one of the only potential options. A further issue identified with the management of this excavated material was that of Sulphate based minerals identified within the soil. Upon exposure of this material to the atmosphere there was the potential for the release of H 2S gas to be generated. This problem was overcome through the addition of hydrated limes slurry to the dredged sediments, to minimise the release. In addition a non toxic odour suppressing agent [was] added to

the top layer of sediment to provide further assurance that the odour was not a nuisance to a general public (Chin & Barnett 1996). This tunnelling project shows a clear indication of the potential implications from the improper management of contaminated soil or sediment in construction (Chin & Barnett 1996). It can cause delays and projects to overrun. With proper planning, implementation of appropriate actions, coordination with federal and state permitting agencies, disruption can be minimised and project costs controlled (Chin & Barnett 1996). 4.2 Northfield-Quabbin Water Supply Plan A further international example where the need for management of excavated spoil has been taken into consideration was that of the Northfield-Quabbin Water Supply Plan in Western Massachusetts. The project involved the construction of a 16 km aqua duct, with an estimated duration of 3.5 years with a total of 215,000 m3 of spoil being excavated. These volumes are based on aqua duct shafts being 4.27 m in diameter and circular sections of tunnel excavated to 3.66 m. The geological material to be excavated through predominantly consisted of gneiss and schist with minor quartzite and amphibolites. Due to the site being located in a hilly rural woodland area disposal sites for the excavators spoil were limited. Project managers identified two potential options for dealing with excavated spoil. These included either being placed in spoil piles within the vicinity of the construction site or alternatively being utilised as a primary resource external to the project. Where the spoil can be utilised, usually as fill, there is likely to be no detrimental effect on the aqua duct sites except in transporting (Farquhar, 1978). This option also yielded the potential for income and other benefits such as the avoidance of dumping costs thus increasing the overall cost effectiveness of the project. The potential for the need of other developments in the region such as railway sidings for local industrial development, and water purification plants (Farquhar, 1978) provide further implications to the creation of soil piles. The reuse of the spoil was hence identified as having the lowest environmental implications, avoiding impact of excessive dust creation and destruction of vegetation as well as reduction of erosion to the local landscape from transport routes. It was reported that adverse effects could however be minimised by grading and planting the piles to blend in with the surrounding terrain. The long term impacts that each pile created would gradually lessen as shrubs and trees, capable of supporting a wildlife population that overlapped

from adjacent tracks, cover the surface. However, utilisation of the excavated material was still identified as the most proactive purpose as it avoided the material being used as waste as well as permanently changing the local environment (Farquhar, 1978). Further implications of localised soil disposal were identified as coming from that of wind and water erosion threatening the integrity of waste heaps prior to stabilisation with regional vegetation. If placed up-slope from a shaft there was a danger of wash reaching the construction area and finding its way back underground. A situation of this type occurred in South Africa and was sufficient to close down a coal mining operation (Farquhar, 1978). In the absence of demand for reuse the option of spoil disposal would occupy immense surface areas. An alternate option was to arrange the piles in a series of tiers. Though reducing surface area this had the effect of producing greater aesthetic impacts on the local environment. However the unstable conditions (produced by the intrusion of water into the rockmass) were considered to have the potential to generate failures within the spoil piles. Failures of the Buffalo Creek coal reject dam in West Virginia in 1972 and the tailings tip that overran the village of Aberfan, Wales in 1966 (Farquhar, 1978) were cited as clear examples of the implications of this form of waste disposal. Further implications associated with the creation of spoil piles, as an option for dealing with the excavated material was that of sulphur bearing minerals within the geological units. Oxidation of these materials when exposed to the atmosphere in soil heaps combined with water runoff can impact on water quality in local tributaries therefore alternate disposal and containment option were required for this material. In either case parotic monitoring of the surrounding area was highlighted as being needed (Farquhar, 1978) to ensure no impact on the environment resulted. The determining factor for the utilisation of rock spoil was its locality to the final use of the resource. The primary issue, which determined whether utilisation would occur, was that of road conditions and transportation costs. In different circumstances broken rock may be stored when later use is assured (Farquhar, 1978). However in the absence of this, the creation of soil stockpiles graded to blend with the local topography was seen as the dominant end use for the excavated material.

4.3 The Channel Tunnel The Channel Tunnel Link, o wned by Euro Tunnel and built by the Transmanche-Link re-established land access between Britain and the continent in 1991. The Channel Tunnel Act allowed Euro Tunnel to construct two 8.5 m diameter running tunnels and a 5.4 m service tunnel, with the chalk spoil disposed of as a platform at the toe of Shakespeare Cliff (Maddrell, 1996). The tunnels themselves, between the two terminals are 51 km long, of which 38 km is located beneath the sea. Spoil disposal was identified as a major logistic and planning issue and required nine consents from various statutory bodies. About 5,000,000 m3 of spoil were disposed of in five sequentially developed lagoons. The completed platform now known as Samphire Platform, is a nature area with a small area for Euro Tunnels cooling plant and ancillaries. Many options were examined for soil disposal, the studies for which included transport mode and distance, disruption, noise and pollution as well as financial implications. On the UK side it was finally agreed that most of the spoil would be transported from the tunnels by conveyor and disposed of behind a new sea wall in front of existing defences at the toe of Shakespeare Cliff to create the Samphire Platform. The remainder of the spoil was used as fill for the Bulk Stone terminal site. On the French side the decision was taken not to use the spoil but to dump it as slurry behind a new dam at Fond Pignon, about 3 km from the main shaft. Although the tunnel length was shorter, the French disposal volume was proportionally greater than that of Britain because of the different method of disposal. The disposal site at the base of Shakespeare Cliff is now open to the public after the area was re-profiled and receded in order to enhance its environmental qualities (Maddrell, 1996). The tunnelling itself involved the removal of over 7,000,000 m3 of in situ rock about 4,600,000 m3 coming from the UK side. Alternate sites for the remaining spoil were examined by the surplus spoil working party which included Local District Councils, British Rail, and Nature Conservation Authorities, under the Chairmanship of Kent Country Council. In total, the working party examined 70 potential spoil sites against general criteria, e.g. spoil delivery and acceptance rates, environmental impacts as well as technical aspects, including modes of transport. It was that case that although the Channel Tunnel Act gave Euro Tunnel permission to construct the link the agreed spoil disposal at Shakespeare Cliff required detailed planning consent from Kent Country Council, Dover District Council, and Dover Harbour Board. The first submission in July 1987 requested

permission to construct a temporary sea wall, which lay within the platform area. The final consent associated with the west end makeup beach and east end rubble mound cliff protection was granted in February 1991. The total period involved in obtaining consent was 3.5 years (Maddrell, 1996). It was stipulated in the enabling legislation that no coastal protection work could be built which would extend over any section of coastline not currently protected. This is because the White Cliff of Dover stay white only as a result of shore erosion that causes cliff falls. Thus the lower working site could not be placed directly over the tunnel line which crossed the coast beneath the unprotected section. The site selected had been subjected to previous reclamation works in the 19th Century. The placing of spoil behind the sea wall had to be carried out in such a way as to prevent coastal or sea pollution due to the escape of fines. The spoil was placed in a series of closed lagoons in which fine material settled out before the discharge of excess water (Norrie, 1990). With completion of the filling in July 1991, it was reported that the Fond Pignon held 5,400,000 m3 of spoil representing 3,070,000 m3 of rock in situ (Varley & Shuttleworth 1996). 5 THE LEGISLATIVE WASTE MANAGEMENT REGIME IN NEW SOUTH WALES The NSW Government announced on 21 June 2001 an overhaul of the States waste regulatory regime. The reforms are contained in two new pieces of legislation, the Waste Avoidance and Resource Recovery Act (WARR Act) which establishes a new regime for managing waste and resource recovery in NSW, and the Waste Recycling and Processing Corporation Act (WRPC Act) establishes a new statutory state owned corporation to exercise functions relating to waste and secondary resources. The Acts came into effect in October 2001. Submissions received in response to the governments review of the current waste regime als o raised concerns about the effectiveness of the various regional Waste Boards, and the appropriateness of industry waste reduction plans as a mechanism for achieving waste reduction across the various industry sectors. 5.1 Extended producer responsibility The most significant feature of the new WARR Act is the introduction of a scheme known as the Ex-

tended Producer Responsibility (EPR) scheme. The aim of the EPR scheme is to extend a producers responsibility for a product to the post-consumer stage of the products life cycle. EPR is a form of product stewardship, which requires an assumption of responsibility for the life cycle of products, from the environmental impact assessment stage through to the extraction of virgin materials, the manufacturing and consumption stages and through to and including the ultimate disposal of the product. The key feature of EPR is the shift of responsibility upstream to the producer and away from local government authorities and the general taxpayer. This allows the environmental costs of treatment and disposal to then be incorporated into the cost of the product. 5.2 Waste hierarchy The previous legislation established a waste hierarchy, which ranked from highest to lowest priority, waste avoidance, waste re-use, waste recycling and land filling. The hierarchy is modified in the WARR Act to overcome the perceived inflexibility of the previous model, which implied that re-use was always preferable to recycling. The order is now avoidance as first priority, resource recovery as second priority and disposal as the last resort. Resource recovery includes waste re-use, re-processing, recycling and energy recovery, but does not set priorities amongst them. The priority is to be determined on the basis of other analytical tools, including cost benefit and life cycle analyses. 5.3 What do the waste reforms mean for the tunnel industry? Whilst the bulk of the legislative provisions contained in the new Acts deal with the restructuring and reorganisation of waste administration in NSW, there are a number of issues raised by the new regime which have the potential to impact significantly upon tunnelling industry. These issues include the following:

The focus of the new legislation is clearly on recycling and recovery of waste. Whilst the methods to be implemented to achieve these goals will be contained in regulations not yet released, it is likely that financial incentives (such as grants and other governmental assistance) could be offered to encourage the development of sustainable solutions for waste. This will create

business opportunities for investors in new technologies for waste treatment and recycling;

7 REFERENCES Australian and New Zealand Environment and Conservation Council (1998) Interim Ocean Disposal Guidelines. ANZECC Secretariat, Canberra. Chin, K & Barnett, C (1996) Management of Contaminated Sediments at the CA/T Project. Environ Geotechnical, proceedings international symposium (Eds) Fand, Hsan Yang, Inyeang, Hilary I. Technomic, Lancaster. Cunneen D.F. (1990) Sydney Harbour Tunnel Environmental Planning th Control. and The Underground Domain. 7 Australian Tunnelling Conference The Institution of Engineers Australia Sydney 11-13 September 1990. pp 101-106 ERM Mitchell McCotter & Kinhill Pty Ltd (1999) Parramatta Rail Link Environmental Impact Statement. Prepared for the NSW Department of Transport, State Rail Authority & the Rail Access Corporation. Sydney, Australia. Farquhar, O. C. (1978) Spoil Disposal from the Planned Northfield to Quabbin Tunnel, Wes t Massachusetts. Environmental Geo logy, Vol. 2 No. 2 pp.78-96. Holliday S. (1997) Northside Storage Tunnel Director Generals Report. New South Wales Department of Urban Affairs and Planning. 97/96. Kibble G. (1995) New Southern Railway. Director Generals Report. New South Wales Department of Urban Affairs and Planning. 95/17. Kibble G. (1997) Proposed Eastern Distributor, Cahill Expressway to Mill Pond Road. Director Generals Report. New South Wales Department of Urban Affairs and Planning 97/33. Lukins P. J. (1990) Sydney Harbour Tunnel Project Construction to Date. The Underground Domain. 7th Australian Tunnelling Conference The Institution of Engineers Australia Sydney 11-13 September 1990. pp 217-221. Maddrell, R. J. (1996) The Channel Tunnels Marine Works for Spoil Disposal. Water and Environmental Management .10; 6, pp 383390. Mitchell McCotter (1994) Airport Rail Link: Spoil Disposal Investigation, report prepared for CityRail. June 1994. Nelson A.M (1990) The Sydney Harbour Tunnel Why? The Underground Domain. 7th Australian Tunnelling Conference The Institution of Engineers Australia Sydney 1113 September 1990. pp 5-9 NORRIE E.H. (1990) The Channel Tunnel Project Issues. The Underground Domain. 7th Australian Tunnelling Conference The Inst itution of Engineers Australia Sydney 11-13 September 1990.pp i-xii. Parramatta Rail Link Pty Ltd (2001) Su mmary of Final Proposal. Preferred Activity Report for the Parramatta Rail Link, Sydney, Australia.

Offences against the new legislation are to be dealt with at Local Court level. Maximum penalties are $44,000 for corporations and $22,000 for individuals. However, offences against the new legislation may be combined with prosecution for general waste offences under the Protection of the Environment Operations Act 1997 (NSW), thereby greatly increasing the penalties which may be imposed.

6 CONCLUSION Companies, their Directors, and Senior Managers, with substantial responsibility for overall tunnel construction, expose themselves to individual liability and prosecution if appropriate management systems, resources and qualified personnel to confront environmental issues are not engaged. The legal ramifications for inadequate or poorly structured management systems of excavated material from any major infrastructure development in NSW have the potential to generate significant environmental legal risks. Examples of local and international tunnelling activities show that the potential for environmental impacts is diverse. The management of soil disposal options can produce implications ranging from adverse reactions from local communities and environmental pollution incidents to considerable financial burdens from licensing and regulatory infringements. Legislative development in NSW has emphasised that the most beneficial use of excavated material is that of reuse as a primary resource in an alternate industry or within the generating development itself. Ideally the establishment and operation of a public information networks, to enhance the ability of industry to turn waste into primary resources, management at a State level via coordination of regional and local industry groups to allow sufficient commercial knowledge of resource availability. Resource databases, which identify time frames and quantums of material available from the various developments, would solidify legislative objectives. A regulatory incentive scheme which provides credits (whether by financial incentives, or reduction in administrative burdens and the promotion of selfregulation) for the reduction of waste disposal and the implementation of resources would provide incentives to development both on a small and large scale to reduce overall project costs (both from income generated and avoidance of disposal costs). -

Smyth R. E. (1987) Proposed Sydney Harbour. Director Generals Report. NSW Department of Urban Affairs and Planning. 87/15. Sydney Water (2000) Annual Environment and Public Health Report 1999/2000. Sydney Water. Varley P.M & Shuttleworth P. (1996) Spoil Disposal. In Engineering Geology of the Channel Tunnel. Haris C.S, Hart N.D., Varley P.N. & Warren C.D. (Eds), Thompson Telford. Pp 174-193.