I have a client who has fee simple ownership of a piece of property. The city has a stormwater maintenance easement on part of it to install, maintain, operate an repair a regional underground detention system. City's excavation will be around 20,000 cy to install detention. Excavated material is contaminated. Who owns the excavated material?
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WHO OWNS EXCAVATED MATERIAL? 1
- Thread starter rcspiel
- Start date
GeoPaveTraffic
Geotechnical
Generally speaking, whoever owns the property owns the contaminated soil.
I suspect that once your client gave the City the easement, they accepted that if/when material was excavated that they would have to deal with the spoil.
Bottom line, they need to talk to their lawyer not their engineer.
I suspect that once your client gave the City the easement, they accepted that if/when material was excavated that they would have to deal with the spoil.
Bottom line, they need to talk to their lawyer not their engineer.
msquared48
Structural
Interesting question, and really one for a lawyer, which I am not. However, these questions are always fun to peruse.
That being said, although the easement only allows the city to use the property and not legally own it, which would technically include the excavated soil, the question here appears to be who is responsible for disposing of the contaminated soil.
The test to me seems as to who created the need to dispose of the soil? That is who should pay for it, at least in my mind.
Mike McCann
MMC Engineering
That being said, although the easement only allows the city to use the property and not legally own it, which would technically include the excavated soil, the question here appears to be who is responsible for disposing of the contaminated soil.
The test to me seems as to who created the need to dispose of the soil? That is who should pay for it, at least in my mind.
Mike McCann
MMC Engineering
you can try to push this off on the City, but I doubt their attorney will accept full responsability for the cost, at least without a fight. Expect your client will pay part of it - at least some of the additional charges related to the environmental cleanup. These would include inspection, testing, permits, and disposal or cleanup costs.
contaminated with what? and how contaminated?
contaminated with what? and how contaminated?
MiketheEngineer
Structural
IMHO they moved it - they own it. BUT call your lawyer and make sure he is well versed in this area of law - few are.
Shades here of Shakespeare's Shylock and his pound of flesh. If there is any direct corelation , the city most certainly has legal access for whatever purpose they want ( within reason) but they then also become liable for any unfortunate or unforseen or similiar consequences that derive from their actions
Ownership of contaminated soil is usually the property owner, as GPT noted; however, the easement creates issues that are not as clear, so as others have noted, see a lawyer....one who specializes in real property environmental law and has a contracts lawyer at this disposal as this issue could be resolved by contract.
While a lawyer view is needed (noted by others), there is still an engineering aspect for your case. In Project Specification or Project Agreement of some projects (mostly large diameter pipelines with trench excavations), there are some items related to the excavated materials. These items explain who and how should take care of excavated materials. These items can later on be used by lawyers.
From your post, it seems that the project is coming in the future. So I suggest that you clearly specify the responsibilities related to the excavated materials in your project Documentation to avoid time and energy consuming claims in future. IMO consult a lawyer but also enforce your client’s interests via project Engineering Specification and the Project Contract (in the framework of construction laws applicable to your region).
From your post, it seems that the project is coming in the future. So I suggest that you clearly specify the responsibilities related to the excavated materials in your project Documentation to avoid time and energy consuming claims in future. IMO consult a lawyer but also enforce your client’s interests via project Engineering Specification and the Project Contract (in the framework of construction laws applicable to your region).
Now wait a second. If the soil was uncontaminated, the city wouldn't make the owner dispose of it. I fail to see how the nature of the soil would change the city's responsibilities.
In the end it's a question for lawyers, but if the city got to pass that off on the owner it would set a precedent where they could force the owner to dispose of clean soil too I would think.
Keep us updated on this. I want to hear how it pans out.
Hydrology, Drainage Analysis, Flood Studies, and Complex Stormwater Litigation for Atlanta and the South East -
In the end it's a question for lawyers, but if the city got to pass that off on the owner it would set a precedent where they could force the owner to dispose of clean soil too I would think.
Keep us updated on this. I want to hear how it pans out.
Hydrology, Drainage Analysis, Flood Studies, and Complex Stormwater Litigation for Atlanta and the South East -
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1
- #10
this is a "generator" question. While you own the land, you have no say in those that generate the waste material - it's a byproduct of them working in the easement. If they didn't do the work, the presence of the contamination would still be below the ground, but there'd liekly be no regulatory reason to take action. When they dig it up and make it a stockpile, they have just generated a waste stream that cannot be returned to the ground (or left on the surface). As a result, they, buy virtue of their easement, have "generated" the waste and have (should have) the responsibility for proper management.
No I'm not a lawyer. Just managed a few environmental divisions over the years. That said, I don't know where the project is located and no longer work in the environmental business.
f-d
¡papá gordo ain’t no madre flaca!
No I'm not a lawyer. Just managed a few environmental divisions over the years. That said, I don't know where the project is located and no longer work in the environmental business.
f-d
¡papá gordo ain’t no madre flaca!
- Thread starter
- #11
So I should pose this question on some lawyer's org. forum. Yes, this is a future project. The site is a former steel manufacturing plant. The detention area will be on the most contaminated area of site with contaminates of PCE, TCE. Elevated DRO, PAH's,PCB's. UST's also exist in area. I've talked to lawyer's and they couldn't tell me who owns what; a judge may need to get involved. Currently I don't think the development agreement addresses this situation, but let me understand something. If I need this excavated material to balance the site, does my client have to pay for this material if no contract is in place? Does paperwork for acceptance need to be filled out? And here is a tidbit. The city is planning on a underground infiltration basin to meet water quality standards. Does my client own the water now that infiltrates into his soil?
Stormwater infiltration requirements seem counterintuitive for sure. If it's an existing industrial facility that's a generator of industrial waste and the site is contaminated, the generator of the industrial waste is responsible for cleanup. The exception is if the facility didn't generate the waste after the implementation of RCRA. Often these sorts of sites are considered "brownfield" sites, i.e., there is no regulatory setting that could force cleanup, but redevelopment needs to consider the fact that contamination exists. Often when you go through "voluntary remediation" or "brownfield" cleanups, there is some regulatory involvement. The regulators often impose "institutional" controls to limit problems with further contamination to "human health or the environment." These controls can include deed restrictions on the use of wells or excavations greater than ___ ft deep (i.e., in order to preserve some existing impervious cap).
When issuing design packages to bidding contractors you have to properly disclose the nature of the contamination where present in the area of construction. Typically, that relates more to excavation areas then fill areas. Sometimes your opportunities to go cut-to-fill are limited. Sometimes these limitations have to do with the end use, i.e., are you developing a hospital, day care, residential community, etc.
No way to properly address all these variables.
Much of this can be determined using common sense and an open line of communication with the regulators. I'd mostly be interested in the regulatory setting of the property though. . .
f-d
¡papá gordo ain’t no madre flaca!
When issuing design packages to bidding contractors you have to properly disclose the nature of the contamination where present in the area of construction. Typically, that relates more to excavation areas then fill areas. Sometimes your opportunities to go cut-to-fill are limited. Sometimes these limitations have to do with the end use, i.e., are you developing a hospital, day care, residential community, etc.
No way to properly address all these variables.
Much of this can be determined using common sense and an open line of communication with the regulators. I'd mostly be interested in the regulatory setting of the property though. . .
f-d
¡papá gordo ain’t no madre flaca!
Honolulugeoff
Civil/Environmental
1) Easement documents grant clearly defined rights from the fee owner to the easement holder. So what does the easement say?
2) The City may be allowed to excavate and dump the spoil within their easement, but not outside their easement boundaries. Can they engineer a system with the spoil on top of the drainage system within their easement? Probably not.
3) If it's contaminated, Federal, State and City (?) HAZMAT rules apply. The excavator must clean it up.
2) The City may be allowed to excavate and dump the spoil within their easement, but not outside their easement boundaries. Can they engineer a system with the spoil on top of the drainage system within their easement? Probably not.
3) If it's contaminated, Federal, State and City (?) HAZMAT rules apply. The excavator must clean it up.
dicksewerrat
Civil/Environmental
Why would some one use a contaminated site for an infiltration basin?
Richard A. Cornelius, P.E.
Richard A. Cornelius, P.E.
Dozerman56
Civil/Environmental
I'm with Dick, how much contaminated water does the city plan on generating?
Sounds to me like a regulator at the city may be in over his head a bit.
Hydrology, Drainage Analysis, Flood Studies, and Complex Stormwater Litigation for Atlanta and the South East -
Hydrology, Drainage Analysis, Flood Studies, and Complex Stormwater Litigation for Atlanta and the South East -
dicksewerrat
Civil/Environmental
Where is this? If the soil is presently contaminated, the infiltrating water will wash some of the contaminates along to the ground water table. Unless the ground water is already bad news. Just making a bad situation worse.
If the brown field was contaminated by bankrupt company won't "Superfund" help clean up the soils?
did your client pay real money for this site? What was in the sale documents? EPA must know about this site call them.
Richard A. Cornelius, P.E.
If the brown field was contaminated by bankrupt company won't "Superfund" help clean up the soils?
did your client pay real money for this site? What was in the sale documents? EPA must know about this site call them.
Richard A. Cornelius, P.E.
there are scores of "contaminated" sites that have no access to Superfund or RCRA cleanup monies. These become the "brownfield" sites of our nation. Most are eligeble for cleanup through states' Voluntary Remediation Programs, unless they are truely "Brownfield" sites as approved by the EPA.
Infiltration at a brownfield/VRP site is usually taboo - i.e., infiltraton by design. No doubt these sites need to be "weatherproof" as they will get rained on. However, often some lower permeability soil cover is applied to the surface so the majority of rainfall is shed from the areas of contamination as runoff. If you are than going to infiltrate that runoff into a biofilter or other such feature, it'd better be in an area without contamination, which makes the OP moot - i.e., the excavated soil would not be contaminated.
good luck in this project.
f-d
¡papá gordo ain’t no madre flaca!
Infiltration at a brownfield/VRP site is usually taboo - i.e., infiltraton by design. No doubt these sites need to be "weatherproof" as they will get rained on. However, often some lower permeability soil cover is applied to the surface so the majority of rainfall is shed from the areas of contamination as runoff. If you are than going to infiltrate that runoff into a biofilter or other such feature, it'd better be in an area without contamination, which makes the OP moot - i.e., the excavated soil would not be contaminated.
good luck in this project.
f-d
¡papá gordo ain’t no madre flaca!
GoldDredger
Civil/Environmental
- Jan 16, 2008
- 172
Seems clear to me that this is entirely the City's responsibility, but that is only my opinion and I'm not a lawyer.
If the City is excavating land for a regional detention basin, would they not be responsible for dealing with the spoils that are created from construction.
They can't dump the spoils on lands they have no rights to. Nor can they place the spoils in their easement if it adversely affects the use of adjacent property (mounding it for instance, altering drainage patterns or access)
Also, if they intend to spread the soil around on their (easements?), are they not compounding the problem of contamination by increasing exposed surface area and possibly moving it to previously uncontaminated areas?
The City then by virtue of their construction would be placing at risk the health and safety of the community at large. Seems obvious to me that the City is 100% responsible for this.
As an aside, lets for arguments sake say the site was uncontaminated and the City intended to sell off the spoils. I wonder if the property owner would be entitled to those profits? (perhaps an argument against it being 100% City responsibility)
Keep us posted, I'd be curious to know how this pans out.
If the City is excavating land for a regional detention basin, would they not be responsible for dealing with the spoils that are created from construction.
They can't dump the spoils on lands they have no rights to. Nor can they place the spoils in their easement if it adversely affects the use of adjacent property (mounding it for instance, altering drainage patterns or access)
Also, if they intend to spread the soil around on their (easements?), are they not compounding the problem of contamination by increasing exposed surface area and possibly moving it to previously uncontaminated areas?
The City then by virtue of their construction would be placing at risk the health and safety of the community at large. Seems obvious to me that the City is 100% responsible for this.
As an aside, lets for arguments sake say the site was uncontaminated and the City intended to sell off the spoils. I wonder if the property owner would be entitled to those profits? (perhaps an argument against it being 100% City responsibility)
Keep us posted, I'd be curious to know how this pans out.
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