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

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.

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⁾

3. 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 Uncontaminated)

• 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:

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:

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?