Dirt, Some is Actually Dirty

Feature Story Dirt, some is actually Dirty! (some is more than dirty)

Anyone who in the business of landscaping, excavating, pools, construction …. well, just about everyone who digs outside needs to be aware of the new NJ DEP requirements for importing or exporting clean fill.

I personally know of 3 companies who are in lawsuits that have cost over $100,000 so far. And it's not finished yet. • They will have to pay for all or most of the soil disposal • They will still end up with civil suits for the disruption they caused their clients. One family abandoned the home and is renting until it’s all cleaned up.

Cradle to grave

Typically, the original property owner is responsible for the proper disposal of soils. They are the cradle, but all of us as contractors are responsible as well. The person contracted to excavate, load and transport the materials (or plays ANY part in it) is also on the hook.

Often, we look around a customer’s home and think it’s clean, maintained and there were never any industrial activities, so the soil must be clean, correct? NO! • Pesticides, herbicides and fertilizers over years of use will impact soils • Down the road, lead dust from a house can end up on your client’s property without anyone knowing it • You don’t know where the fill originated from when the developer built the home • If a home was on the site and razed, odds are there will be some soil issues • Unacceptable fill also includes any materials containing debris (wood, metals, plastics, wire, wall board, roofing materials, insulation, carpets or padding, trash, etc.) mixed in with soils and non-decomposable, inert solids

To assure regulatory compliance, avoid potential liability (including fill removal and remediation costs) and penalty exposure for violations under the Solid Waste rules and the Discharges of Petroleum and Other Hazardous Substances rules, generators, brokers and transporters of fill, and property owners receiving fill, you should ensure the fill does not contain debris and that the fill is not contaminated above the NJRDCSRS or NJNRDCSRS limits, as applicable. These determinations should be made at the point of generation (i.e., before transport and placement).

What to do:

• Make sure you have soil movement permits • Have the soils tested prior to moving and include them with your permits • Keep documents on-hand or on-site if a neighbor comes over asking. The quicker you satisfy them, the less they might complain or make statements on social media • Show how professional you are to your client by explaining what will happen before you ever start work by ensuring their safety and value of their property

What not to do:

• Allow anyone to dump on your project without having documentation • Make sure you document and amend your permits • Comingle fill from many sources • Trust anyone that you don’t know • Think that it smells or looks good, therefore must be clean

by Steve Rich, Steve Rich Environmental

• Trust a dirt broker or trucker who does not have paperwork for the soil. Brokers and truckers need to keep trucks moving and do not care about what happens when they are done • Make sure they give you tickets showing where the loads were taken from, time and check that it all matches the analytical • Make sure the analytical has a report as to where the samples were taken, and it matches where they are excavating and loading the soil • ie: they take samples in rear of property (all virgin soils), but actually remove soil from areas where agriculture or an old house or other structure was on the property.

Topsoil:

Topsoil…there is no such word (yes, I’ll still use the word as we all relate to it). Topsoil can be a load of leaves, beer cans, tires, and debris. Anything on top of the ground. Loam is the only word that can be used in a court (Sandy loam, silty etc.)

Most topsoil now comes from composted leaves. The challenge is that the leaves and grass: • Could have been sprayed with herbicides and pesticides • Were scooped up by a bucket loader off a roadway, now containing petroleum from asphalt, among other contaminents

But the site is NJ DEP approved:

NJ DEP is like an octopus with 8 divisions. The recycling division loves, I mean loves, composting, as it relieves the stress on landfills. The other divisions of water resources, soils etc. only are about clean fill and they don’t care about landfills as much.

What to do: • Cover yourself by bringing in certified clean fill if you truly are filling in an area or creating berms • Have your attorney provide you with a hold-harmless and let the customer know that the topsoil could have impacts as described below • Document and show receipts from the facility where you got it from • This is a huge gray area, but at least you are somewhat covered (again, speak to an attorney)

Do I think the topsoil made this way is bad? NO, not at all. Honestly, some of these guidelines go way too far and if you think finding certified loam, etc. is easy, good luck.

Some quick things I’ve seen over the past 20 years. • Your company brings in virgin soil to a site, without testing. Most likely, it was CLEAN. • Another company brings in soil, but it was not clean • At some point, owner tests the soil, it’s mixed together and now comes back over criteria

WHO PAYS? Who gets sued?

• Everyone who dumped, but who can’t show that the soil they dumped was certified clean • You say, I’ll go back to property and show everyone it’s clean, I’ll test • Good in theory, but how do you prove there was not an area that was bad, and you contributed?

Remember, the company that knew their soil was bad will scream and yell, it was not us, it was YOU!

Last year I was involved with some cases that homeowners heard stories, decided to call us to test and found many compounds exceeding the criteria. All of them had children and/or gardens. Can you imagine a jury or judge hearing you brought in contaminated soils to a property where children were playing? Imagine if a child actually gets sick? Even if it was not your fault, it will be now.

Steve Rich Environmental Contractors offers a program where they do soil samples, prior to excavation, so the soil is certified. A typical cost to do this is about $1,200. It will include a report stating: • If there was groundwater present and at what elevation • Any un-structural fill, (obvious organic material etc.) • The can also test for percolation and if it is structural • If bedrock is present

In closing, do not let your reputation get diminished by ignoring these steps. Just imagine the damage some customer on social media, at kids sporting events, etc. telling all that your company brought in contaminated soil. Oh, and don’t forget the cleanup costs and cost to restore the site. The last project we did, the contractor's insurance company would not cover them as it was professional negligence, and when NJ DEP gets involved, it is classified as a crime.

We would be happy to answer any questions anyone has or working with them on a program to make sure they are following proper protocols.

Steve Rich is the owner of Steve Rich Environmental Contractors and Holes solutions, a company specializing in asphalt and concrete maintenance. www.steve-rich.com.