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    Statute of Limitations Bars Claim for Contaminated Fill
    Entry posted April 4, 2012 by LSchnapfElite Contributor , last edited April 5, 2012
    374 Views, 1 Comment
    Statute of Limitations Bars Claim for Contaminated Fill

    The movement and disposal of fill material tends not to be well-regulated. During the real estate bubble when demand for aggregate was at a premium, unsavory actors in the industry exploited the regulatory gaps. These companies would charge clients to dispose of contaminated fill, pocket the fees and then sell the materials to sites needing “clean fill”. This practice led to a number couple of high profile projects that were slated for redevelopment. It can be particularly frustrating to a brownfield developer to incur costs to remediate a site only to then have it re-contaminated from importing dirty fill.

    In this case discussed at the link below, a property owner sought clean fill so he could sell his site to a developer. Unfortunately, fill was imported from a road re-construction project and contained DROs. When the developer learned of the contamination during pre-acquisition due diligence, he refused to go forward with the transactions. The property owner had to enroll site in the state voluntary cleanup program to remediate the contamination and then sought cost recovery from the transporter. However, his complaint was filed after the applicable statute of limitations. 

    Good lesson for property owners seeking to import fill as well as developer who smartly had the fill sampled before taking title.



    • geodc

       This is a good discussion to have. I have often seen a variety of RFPs, work plans, proposals, etc. use the term "clean fill." Sometimes I see the phrase "certified clean fill." Quotations are often used as in the linked article, which is often an indication of ambiguity. More often than not, there is no definition or set of criteria that defines the terms of what is acceptable. Some jurisdictions may have guidelines (I believe PA does) that apply in certain circumstances, but usually it is just left to the reader's imagination or professional opinion as to what constitutes "clean." Even after sampling for every constituent under the sun, I would never sign off that something is "clean," or even less likely, certify something as "clean," unless I'm qualifying the statement by defining the term.

      "Clean" must be defined. Otherwise, it would only not apply without dispute to something grossly contaminated. The definition needs to reference a standard type of determination or specific method for characterization.

      For my part, I have done contaminated soil excavations and we do want to ensure that we replace the contaminated soil with "clean" fill. In the plan (or sometimes in the proposal), we specifically outline the parameters we will analyze imported fill for, the frequency and method of sampling, action levels, etc. It has to be stated that the client will be consulted if the characterization results are inconclusive. Something is usually said in reference to additional parameters based on the site of origin.