The Importance of “Clean Dirt”: Examination of the Impact of Using Contaminated Fill

Two males by construction accessories

Dirt – it’s a simple thing that can be more complicated than you might think – especially when it comes to construction projects and environmental impacts. Many construction sites require dirt, or “fill” for final grading of a site. Site work often involves the removal of tanks, building foundations, older roads, etc., generating voids that require fill to finish the site’s development. These voids often require importation of fill to a site. But it can’t just be any old dirt a developer can find. The fill must be “clean” so that it does not pollute the site. When finding fill for a site, it is important to monitor its quality – so how do you know when dirt is “clean”?

The only sure way to prevent contamination of a site by fill is by practicing good management of fill which requires, meticulous record keeping and careful selection of service providers, as well as following a program that ensures it is truly “clean” fill. This program includes: testing, record keeping and constant surveillance.(2) Improperly sourced or monitored fill may contain unwanted contamination, which could potentially pollute the development site. There is nothing worse than paying to remediate a site, importing “clean” fill and then finding out that the site was re-contaminated by the supposedly “clean” fill.

Claim Scenario

ABC Development purchased a former industrial site. ABC retained a consultant to perform a Phase I Environmental Site Assessment, which noted that there was a high probability of encountering diesel contaminated soil from a former underground storage tank. ABC budgeted for this, but during soil excavation for an underground parking garage, discolored soil was encountered. Sampling showed that the soil was contaminated with arsenic and cadmium, requiring excavation and off-site disposal. The discovery of this contaminated soil greatly increased project costs, required extensive discussion with regulatory authorities, and ultimately, delayed the project.

Contaminated fill poses liability for many parties, including the site developer, future site owner, fill source area owner, excavator and transporter. Additionally, use of tainted fill can result in significant costs to site developers and associated entities. The Federal CERLCA law, as well as many state and local laws, impose environmental liability of many of these parties.

The placement of contaminated fill at a site generates three major problems:

  1. Required remediation of the site (from impacts from contaminants in the fill).
    • Responsible parties (fill source owners, transporters and excavators) may be required to investigate and clean up a site, or to pay for investigation and remediation after that work was completed by others.
    • Another problem that may arise is finding historic fill at the site contains contaminants requiring remediation or stabilization to allow development to proceed.
  2. Legal liability incurred by several different parties.
    Disposal of contaminated fill at a project / development site places legal liability on various entities, including: (2)
Entity Liability Method
Source area owner/operator

CERCLA - Joint and several liability regardless of fault

Remediation Responsibility - Responsible parties may be required to investigate and to clean up a site or to pay for investigation and remediation after that work has been done by others.

Potentially Responsible Party – Current and past owners and operators of any facility where a hazardous waste was disposed of (does not include petroleum)

Statutory liability under CERCLA.

May include anyone (e.g. corporate officers) who had substantial control over the activities that lead to the release of hazardous substances. US v. Bestfoods, 524 U.S. 51 (1998)

There are often local and state laws that prohibit the unauthorized discharge of petroleum or other hazardous materials, such as the New York Navigation Act Article 12 (aka Oil Spill Law).

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  1. Significant impacts to project schedule and cost, possibly endangering future use and sale of the property.
    • The discovery of contamination immediately requires the developer to focus on remediating the site in the hopes of reducing legal liability and salvaging the project schedule.
    • The discovery of contamination can result in significant costs to reduce legal liability, cause potential harm to adjacent site users, and derail the project development schedule.
    • It is worth noting that if the project schedule cannot be met, the developer may incur large costs due to lack of tenant income and liquidated damages under the development contract.

To avoid the above mentioned potential liabilities, it is important to know the source of the contaminated fill. The following is a primer on contaminated materials and sources.

Common Sources of Contaminated Media (Fill)

Construction and Demolition Debris (Illegal or Unauthorized Disposal in Source or Development Area)

  • Concrete, brick, clay
    Source of metals, VOCs, and SVOCs, usually from coatings on these materials
  • Drywall, plaster
    Potential for ACM, metals, etc. from coatings on these materials
  • Asphalt
    Source of VOCs, PAHs, SVOCs from petroleum constituents of asphalt
  • Wood
    Source of metals from paint on wood
  • Asphalt shingles and asbestos contaminated roofing materials
    Source of ACM from ACM constituents of roofing materials; PCBs may be present in building caulk
  • Transite siding
    Source of ACM

Soil (Contaminated and Un-contaminated)

  • Historical fill
    May be impacted from prior industrial activities at source area (lead, TPH, VOCs, etc.)
  • Petroleum contaminated fill
  • Hazardous waste
    Resulting in even higher costs to manage and dispose
  • Agricultural impacts (pesticides, herbicides, and metals)
  • Construction and demolition debris
    Asbestos, PCBs, mercury

Prior Waste Disposal/Beneficial Use

Ash disposal – In the past, ash was routinely used to level and fill in areas. Coal and wood burning resulted in significant amounts of ash, which required disposal. Ash may contain metals and other contaminants.

Dredge spoils disposal – Dredging of ports and waterways generates dredged spoils, which are the material removed from the subsea area excavated. These spoils can be disposed of at sea or on land. If disposed on-land, the dredge spoils often contain rubble, brick, objectionable solids, RCRA metals, VOCs and other contaminants. Historically, many port areas received dredge spoils, but over time, the exact area of dredge spoil disposal was forgotten or not recoded. Finding sites that accept dredge spoils is often difficult.

Waste disposal – Various wastes were disposed of over time at manufacturing sites. Prior to RCRA, this waste disposal was not recorded. Commonly disposed of manufacturing wastes include metal fines and cuttings, off-specification material, by-products, petroleum products and scrap machinery.

Minimizing Fill Problems and Liability

How do I manage the liability from known or potential contaminated fill already on or delivered to my site?

The following are some suggestions that should, if followed, reduce liability and associated problems with fill.

Clean Fill Management Recommended Actions

Acceptance of clean fill at a site requires environmental management to ensure the quality and consistency of the entire batch of clean fill. The recommended actions to maintain clean fill management include:

Action Purpose Challenges
Find an acceptable source of clean fill. Ensure fill is:
  • Free of environmental contamination
  • Close to intended use area
  • Reasonably priced
  • Clean fill sources are scarce in many urban areas.
  • Distance of clean fill site from project site.
  • Unknown environmental history of a potential clean fill site.
  • Lack of existing data on the environmental quality of the fill.

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Source Area Fill Management

If you own or manage a fill source area, careful management is required so that you do not incur any long-term environmental liabilities.

Management of clean fill source areas also requires careful management of the following entities:

Entity Management Action Reasons Benefit
Firms excavating and transporting fill Need to ensure that the management of these firms is known, well-educated and experienced and that these firms are properly licensed. Only want to work with reputable firms, properly licensed and insured that will dispose of fill in a legal, appropriate location. The eventual disposal site of fill from the source site needs to be known.

Need to avoid getting your firm/site included in any lawsuits or negative press.
No negative press.

No CERCLA liability for disposal of material from your site in an inappropriate site.

Want to learn more?

We encourage you to continue learning about the importance of “clean fill” and how Great American Environmental can best assist your clients in avoiding a ‘dirty’ financial situation! Explore our Brownfield Redevelopment Riskopolis and discover scenarios showcasing a variety of potential environmental exposures within the redevelopment industry. Are your clients protected from these ‘dirty’ dangers?

Brownfield Redevelopment Riskopolis Series

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  1. The Pitfalls of Accepting Contaminated Fill; IRMI Jeff Slivka;
  2. Mitigating Environmental Liability from Construction Debris and Contaminated Soil; Strafford; February 12, 2019
  3. Dirty Dirt; State of New Jersey Commission of Investigation; March 2017