Construction Law Blog

From a liability perspective, contaminated soil at a construction project is the responsibility of the property owner. As a practical matter, however, contractors must be aware of several issues when working on a construction project where contamination exists.

Although the relevant regulatory agency may not require the contractor to clean up a property with pre-existing soil or groundwater contamination, contractors must consider several related issues when a project will require ground disturbance:

Review your contract: Most contracts contain specific notice, change order, or indemnification provisions related to contamination or hazardous materials. If the contractor does not comply with these provisions, the owner’s problem can become the contractor’s problem.

Track delays and expenses: Identification and classification of contaminated soil will delay the project – without careful record-keeping and compliance with the contract notice provisions, the owner may successfully shift responsibility for these delays and expenses to the contractor.

Ensure safety: Take necessary precautions for worker safety (e.g. preparing and implementing a soil management plan).

Consider stockpiling and disposal: Stockpiling may not be permissible - or plastic sheeting and a berm may be required. Disposal of contaminated soil at permitted landfills using a licensed transporter will include additional expense.

Adjacent Properties: Even if your project site does not have contamination, if it is located adjacent to a contaminated site, you will need to consider whether flooding or groundwater flow can transfer soil contamination to your project site. In many instances, a site boundary such as a wall or fence is not sufficient to act as a barrier to prevent the migration of contaminants to adjacent properties.

Vapor Mitigation: In addition to excavation concerns, any site that has contaminated soil and/or groundwater may require installation of a vapor mitigation system in a new structure. Contractors must take careful note if the specifications require a chemical vapor mitigation system. This is not the same as a simple moisture barrier. If the contractor does not properly install, inspect and test the vapor mitigation system, litigation and liability may ensue.

If you are working on a project site that has pre-existing contamination, consider these steps and precautions. Have other thoughts or questions about environmental issues? Contact a member of Hirschler’s Environmental Practice or Construction Law Group.