You could be unknowingly exposing your business to an environmental liability by common practices at your facility…and not even know it.
Have you ever heard of Dirty Dirt?
New Jersey recently passed Dirty Dirt legislation that pertains to the illegal dumping or reuse of soil and fill materials. Businesses that provide soil and fill recycling services in New Jersey must now have a proper license for collection, transportation, processing, brokering, storage, purchase, sale, or disposition, or any combination thereof, of soils and fill recyclable materials.
This legislation was created due to an ongoing trend in the management of excavated soil and fill material. According to the New Jersey Department of Environmental Protection (NJDEP), “unacceptable and/or contaminated soil or fill is sold or provided for free as ‘clean fill’ and being deposited at construction, development and residential sites throughout the State.” This practice could pose a threat to the safety and health of the public and the environment.
I am sure you have seen the signs along the roadsides:
Clean Fill Wanted
Free Clean Fill Available
Here is the situation.
A contractor needing soil for a new subdivision might turn to the owner of another property that is generating excess soil as a result of construction activities on that property, such as aware house, manufacturer, or other facilities.
The contractor gets the fill they need, and this other property is happy to have it off their hands. It is one less thing to worry about. It is a quick handshake deal, and trucks come by to pick up the soil the following week.
We see this a lot with developments on former farm properties. Usually, the first step in these projects is stripping away the topsoil and using it elsewhere or selling it. It usually does not take much time or effort to get rid of the excavated topsoil.
The problem is, it is seldom that this type of “Clean Fill” is ever tested to see if it is contaminated before it is sold, given away for free, or re-used somewhere else. Topsoil from farms may contain elevated levels of pesticides, herbicides, and heavy metals. As you might imagine, the soil around a manufacturing plant that uses hazardous materials in its processes could be in even worse shape.
The New Jersey Dirty Dirt legislation was put in place to better control the excavation and reuse of soil and other fill materials within the state to help limit potential environmental liability exposures associated with removing and also using these materials on your property. Importantly, now in New Jersey, any applicable soil and fill materials must be addressed by a licensed company, and they must adhere to required procedures to properly manage these materials.
So, what is the big deal? Suppose your state does not have similar legislation? You may think that once the soil or fill material is off your property, it is no longer your concern. Since the soil or fill material is now at a new location, any potential environmental liability would now be on the contractor, homebuilder, or whoever took possession of this material, right? The source facility is in the clear, right?
That may not be the case.
In lieu of properly characterizing the material, and without a liability release between the source facility owner and the persons receiving and utilizing the material, the source facility could be on the hook. And most concerning, this is an issue that could arise several years down the line.
Think about it.
Once the affected party (say a group of homeowners who discover their new development is built on contaminated soil or fill material) finds out where the material came from, they will likely target all parties involved, including where the material was obtained, the transporter of the material, and the contractor that used the material in the new development.
Hopefully, the New Jersey Dirty Dirt legislation should ensure this does not happen. Not to mention, it will help prevent contaminated soil from being used as fill, which could impact people’s health and safety. I expect other states to follow New Jersey’s lead on this issue. It is something to monitor in your area.
So, what can you do if your state does not have similar legislation relating to the management and usage of soil and other fill materials?
How You Can Ensure You Are Not Liable
At Envision Environmental, Inc., we have policies in place to make sure this does not happen to our clients.
If a client has a construction project that will require them to excavate soil, such as expanding a building or installing foundations for new equipment, we have a multistep process to follow if our client wants to dispose of any excavated soil:
1. We define the whole issue. How much is being excavated? From where? What processes at the facility could have impacted that soil – and what materials were involved?
2. Who is taking the material offsite? What is the financial strength of that transporter, disposal firm, or recycler? Do they have sufficient insurance coverage and the proper licenses/certifications?
3. Where will the material end up and what are they doing with it?
4. Has the material ever been tested? If so, what were the results? If not, sample the material and analyze it for potential contaminants of concern.
5. Always secure the protection of a liability release between you, as the source facility, and the company taking the soil, whether it is a contractor, disposal firm, recycler, or transporter. Have your legal counsel draw something up.
Most of the time, a contractor removing this material offsite for free will not sign an agreement like this. In this case, getting this material removed from your property for free was a situation that was too good to be true.
Better to hand off the material to a reputable, licensed company for proper management, recycling, or disposal.
Other Waste Material to Keep an Eye On
This topic brings to mind other areas of concern when getting rid of waste material.
I am talking about cardboard, pallets, drums…anything that has your facility’s name on it, perhaps a label or logo. Before sending this material out for disposal or recycling – take your facility name off every item.
Because once that material leaves your facility, you lose control on what will happen to it or where it may end up. The disposal/recycling company could go belly up, and regulators could find a big pile of your wastes at the shuttered facility that they are now investigating for contamination.
Or you could even sell your drums to another company for recycling or re-use. The company that purchased the drums keeps your facility name on them, fills them with hazardous materials, and then improperly disposes of them.
Unfortunately, an issue may not arise until decades later when the contaminated landfill undergoes a USEPA Superfund Cleanup. The USEPA is investigating the site and comes across these drums with your facility’s name on them. Guess who gets pulled into the whole mess as a result?
It is for situations like these that the USEPA Superfund Program was created. Sometimes, these landfills are left sitting abandoned. There is no clear ownership and nobody to pay fines. The cleanup is federally funded.
But what the government then does is try to get some money back from potentially responsible parties, or PRPs. They go after entities whose waste they can identify in the landfill to help pay for the cleanup.
Since your facility’s name is on these drums, your company could become a PRP and may need to contribute towards the cleanup of the landfill, even though your facility never sent any waste to the landfill.
If you had removed those labels, they would never have notified you in the first place.
Where to Go From Here
You should closely monitor the management, disposal, or recycling of any waste material at your facility. Nobody is immune, even residential properties.
A friend of mine dealt with an issue like this recently that perfectly illustrates this point.
After retiring, he decided to get into real estate. He bought an old three-story house on the Jersey Shore with the idea of renting out the three apartments inside. The home became damaged in Hurricane Sandy, and the previous owner never fixed it.
My friend got a great deal as a result and had contractors come by to fix the place up.
The company installing the new roof offered to take the old shingles, as well as the packaging for the new ones, to the local dump for a modest fee. This company loads all the waste in their truck and drives away, and my friend has one less issue to address.
As you might guess, the shingles did not end up at the local landfill. The roofer drove to a secluded underpass nearby and dumped everything.
The police came along later and did about a minute’s worth of detective work, which led straight to my friend. His name and address were all over the packaging.
He was taken to court and ended up paying fines and for the cleanup. A few pennies saved resulted in costing him a few thousand dollars in the end.
This sort of thing happens to homeowners everyday… and businesses too… of all sizes, in all sorts of industries.
Mom and Pop shops, Fortune 100 companies, hotels, manufacturers… every company must closely watch the waste material that leaves their facility to avoid potential liability.
If you have any questions about properly disposing of excavated soil or other waste materials or any other environmental, health, and safety questions, I am happy to help. Contact me, Mark Roman, at 609-208-1885or via e-mail at email@example.com.