March 3, 2010
Anyone involved with the redevelopment of a Brownfield site has likely come across “fill” as an environmental issue. “Fill” is a term that describes non-native soils that may be encountered at the ground surface or at depth at sites. Historically, low spots, wet spots and even pits or depressions (natural or man made) have been filled with materials that were readily available. In many cases buildings have been constructed over areas that have been filled.
Depending on when fill was placed at the site, it may consist of debris, building materials of all kinds or any other kind of excess material. One of the issues from an environmental liability perspective with fill is that if no one can document the source of the fill material, there is the potential that the fill could be contaminated or contain levels of contaminants that may pose a risk to human health or the environment.
As sites are being redeveloped, current owners or prospective purchasers may need to excavate fill. An excavation may be necessary to place footings or utilities underground. In some cases, a large quantity of soils may need to be excavated so that an underground level can be constructed. A party can determine if fill material is present by conducting a pre-purchase Phase I assessment or by taking test borings. A geotechnical study can be used to characterize soils and may reveal that fill at a site is unstable and incapable of supporting a structure that is being planned to be built on the surface of the ground. If fill is removed, there may be a need to evaluate the material to determine whether it can be reused on site. When a site is located in a dense urban area, there may not be any place to store fill. In that case, arrangements may need to be made to find an off-site location. In cases where problem materials are encountered, fill may need to be evaluated, stored temporarily on-site and shipped to a proper disposal facility. Depending on the circumstances, the costs associated with managing fill can be quite high.
The Minnesota Pollution Control Agency (MPCA) recently issued guidance on the handling of fill in the redevelopment context. A copy of the Guidance Document “Best Management Practices for the Off-Site Reuse of Excess Fill From Development Sites” is found at:http://www.enviroattorney.net/PDF/Best%20Management%20Practices.pdf.
Joseph Maternowski is an experienced environmental lawyer. He practices in the areas of environmental, administrative and real estate law. Mr. Maternowski regularly advises clients on environmental liability concerns that arise during the purchase or sale of property. For information on Mr. Maternowski’s practice and the Environmental Law Attorney Practice Group at Hessian & McKasy, please visit: http://www.enviroattorney.net/practice/environmental.php
The views expressed here are my own and do not reflect the views of my employer, Hessian & McKasy, P.A.
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