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Risk Control Associate

Who would have thought excess soil needed rules and regulations? It is an on-going buy/sell/trade industry, so much so that some site contractors maintain a separate division just to market and manage this side of the business. In the world of redevelopment and construction it is critical for excess soil and fill to be clean or it could cost contractors millions.

“Clean” is a relative term, but generally means environmentally clean (i.e. free from contaminants, including corrosive, combustible, noxious, toxic, reactive, or radioactive materials). Clean fill is understood to be virtually inert and pose neither a pollution threat nor a fire hazard due to the presence of a regulated material.

For clean fills to stay clean, regulations are used to prevent improper disposal of contaminated materials. Therefore, in order to effectively manage any exposure, contractors must implement additional risk management protocols to ensure they are not selling or accepting any materials that contain pollutants or could be classified as “contaminated.”

Take the contaminated material at the Rhode Island Department of Transportation (RIDOT) 6-10 construction site as an example. Recently, contaminated material was discovered at a project site. The contractor used soil from another project site as backfill. After the contaminated soil was discovered the soil needed to be removed, halting the multi-billion-dollar project.

Contractors who are purchasing or selling clean fill can help protect themselves by putting these best practices into play.

Practice #1 - Preparing for reuse or reselling
There are four main steps in preparing for the reuse or resell of soil:

  • Source information – Know the past usage of the source site and if any hazardous materials were previously stored there.
  • Inspection – Visually inspect the materials, looking for abnormalities like odor or color changes.
  • Documentation – All the granular details about the source including location, type of project generating fill, removal dates and times, transportation information, contacts of those observing the fill, etc.
  • Analysis – If there is no indication of release of contamination at the project site and the visual assessment appears satisfactory, there are typically few regulatory requirements for sampling or laboratory analysis and the soils can be classified as “clean fill.”

There are regulatory agencies that have specific requirements regarding clean fill testing and/or related guidance, while others may have specific requirements dictated by the intended end use.

Practice #2 – Remember the regulations 
There are regulatory agencies that have specific requirements regarding clean fill testing and/or related guidance, while others may have specific requirements dictated by the intended end use. It is critical to reference the specific state guidelines as they pertain to the project location, especially if materials are transported over state or provincial lines with different standards. Always make sure to keep these documents:

  • Transportation Documentation – Proper documentation should include a load ticket that contains the time, date, location, and a statement that the receiver has evaluated, accepted and approved the load for their use. Copies of this document should always be kept in case a problem arises, it may be helpful in determining the source and potential liability.
  • Contract – The first line of defense is for the contractor to execute a written contract with the site owner that establishes responsibility for the testing and classifying of all soils being removed from the site.

Practice #3 - Check it once, then check it twice
Use an acceptance checklist to make sure you are following industry standard best practices:

  • Obtain Permits and Approvals – Ensure that any regulatory approvals for the intended use of the fill are obtained (areas near wetlands and surface waters may require additional approvals).
  • Review Supplier Credentials – Ensure that the supplier has an experienced organization, controls and the financial strength to provide a quality clean fill product. Request certificates of insurance for general liability and/or pollution liability coverage.
  • Verify Fill Sources – Never accept fill from unknown sources. Ask for the site address and consider inspecting the site prior to accepting the fill. Ask about past site activities and if any environmental assessments are available for the site. During the inspection, make sure the fill does not contain any other waste, debris, staining, discoloration or odor.
  • Verify Fill Quality – Ask suppliers to prove that the fill isn’t contaminated. If you have any concerns about the quality of the fill, request that the material be sampled and analyzed for potential contaminants before accepting. Ask to see the original laboratory results. Alternatively, have samples analyzed independently to ensure the fill is clean.
  • Supervise and Inspect all Loads – Supervise delivery of all loads of fill onto your property. Be aware that one load of contaminated fill could contaminate all other loads.
  • Record Transporter Details – Ask all transporters for documentation that shows the address and owner of origin of the fill. Ask drivers for proof of identity or employment, such as driver licenses or employment identification.
  • Maintain Records – It is important to keep copies of all documents and records about the fill you receive, including the name and address of the supplier and transporter. This helps demonstrate a standard of care in the event of a dispute or legal claim.

To learn more about soil re-use, read AXA XL’s Environmental Risk Bulletin – Best Management Practices: Soil re-use for construction activities.

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Global Asset Protection Services, LLC, and its affiliates (“AXA XL Risk Consulting”) provides risk assessment reports and other loss prevention services, as requested. This document shall not be construed as indicating the existence or availability under any policy of coverage for any particular type of loss or damage. AXA XL Risk. We specifically disclaim any warranty or representation that compliance with any advice or recommendation in any publication will make a facility or operation safe or healthful, or put it in compliance with any standard, code, law, rule or regulation. Save where expressly agreed in writing, AXA XL Risk Consulting and its related and affiliated companies disclaim all liability for loss or damage suffered by any party arising out of or in connection with this publication, including indirect or consequential loss or damage, howsoever arising. Any party who chooses to rely in any way on the contents of this document does so at their own risk.

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