The quest for clean fill can be a dirty business for contractors.

If you get it right, you have unpolluted fill dirt that’s critical to finishing a construction project on time and within budget. If you get it wrong, however, you’re looking at litigation, regulatory penalties, and potential damage to your professional reputation.

These are just a few scenarios that can get contractors into legal and financial trouble:

  • Accidentally importing contaminated dirt into a construction site.
  • Exporting fill they thought was clean that turned out to be polluted.
  • Missing or unexpected contaminates being missed during testing.

Avoiding these issues requires understanding the subtleties of clean fill — how to define it, deliver it, and make sure it’s actually clean. Learning about this will help you create a strategic risk management plan, including the use of environmental insurance, in order to mitigate and avoid potential environmental liabilities.

Let’s dig in.

It’s dirt — how can it be clean?

While each local and state municipality has their own agreed upon definition of clean fill, it generally is thought of as uncontaminated solid material including soil, rock, stone, dredged material, used asphalt, and brick, block or concrete from construction and demolition activities. Clean fill is not necessarily 100% free of contaminants and pollutants, but it should be uncontaminated by spill or environmental release or at a minimum below acceptable levels per the municipality.

Pollutants/contaminants may include:

  • Corrosives, combustibles, noxious or reactive materials, and radioactive substances
  • Naturally occurring substances like arsenic or asbestos
  • Synthetic materials from manufacturing processes
  • Organic waste like food and other human refuse   

Contractors need to ensure they are following federal, state, and local regulations on both the definition of clean fill and allowable pollutants and amounts in fill dirt. Depending upon the regulatory environment, what constitutes clean fill can vary quite a bit.

If you’re moving fill to an area with different regulatory standards, you have to make sure it complies with the rules at the destination site.

Similarly, if you’re importing fill from an area with different regulatory criteria, you have to stay compliant with the rules for both sites.

Failure to comply with regulations can have far-reaching consequences: Imagine importing fill dirt that is found to be contaminated after the construction project is finished. If a building has to be abandoned, the liabilities could go through the roof.   

Contractor Liability

Fill factors: testing, digging, moving

Fill dirt can be the source of plenty of confusion when you’re testing, digging, moving, and using it. A few examples:

  • Site specifications: Construction sites have different regulatory standards with respects to pollution levels. Residential standards would be stricter than industrial standards, for instance. Therefore, you’d want to be extra careful about mixing soils from different kinds of sites. Thus, it’s crucial to import fill that’s appropriate to your construction site.
  • Missed or unanticipated pollutants: Contractors understand that testing of fill dirt is an inexact science. The fact remains that not every part of a fill dirt pile can be tested, but following universally accepted procedures for testing should catch the vast majority of contaminants. That being said, the dirty stuff in fill dirt might not be evenly distributed which can be missed during testing. In another scenario, unexpected contaminants may not be tested for at all, resulting in an inaccurate test result.
  • Regulatory permitting: Depending upon the jurisdiction for your construction site, permitting can vary. Some states or locales require permits for the use or distribution of clean fill while others do not. Checking with your local authorities so as not to miss one of these requirements is crucial to the success of your project.
  • Certified Clean Fill: Many of us have seen the signs on the side of the road stating “Clean Fill Wanted” or “Clean Fill Available.” When is clean fill not clean fill? How cautionary can you be when receiving or procuring clean fill from an unknown source? These are important questions contractors should be asking themselves. While Certified Clean Fill has an increased cost, the long-term success of your project may benefit from a more reliable and trustworthy source.

Clean fill: limiting liability and managing risk

Dirty fill can bring daunting problems for contractors. Here are three ways to limit the potential for fill-related environmental claims:

1. Get everything on paper. Handshake and verbal promises are difficult to defend in court or arbitration. If you have written documents from your fill dirt supplier declaring the fill you’re getting is clean, you have recourse if that turns out to be untrue. As we’ve noted, testing fill dirt is an inexact science. Your supplier could have every intention of delivering clean fill and still do the opposite. Paper documentation helps cover you.

2. Write comprehensive contracts. If your contract spells out precisely the kind of fill dirt to be delivered or provided, it’s much easier to sort out disputes. Contracts also should define how each party will accept liability for errors that crop up. Incomplete contracts that don’t account for the vagaries of fill dirt can tie up litigation for months or years.

3. Work with qualified third parties. Bringing in external experts on pollutants can cost more in the moment, but they can save a fortune in the long run. When you hire environmental experts to assess soils, you’re showing reasonable care that tends to help out when disputes trigger litigation.

Consider environmental-liability coverage

No matter how vigilant you are about testing your fill, following regulations, getting agreements on paper, and so on, clean fill is full of potentially expensive unknowns. You can’t anticipate everything.

That’s why many savvy contractors take out environmental-liability insurance. It’s just a sound risk management practice.

Talk to McGowan Program Administrators about coverage for your pollution liabilities. Our in-depth experience with environmental liability coverage ensures we can be a good fit for your specific risks.