Jordan Ramis pc. Attorneys at law
Borrowed Dirt
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

By John Baker
From the Jordan Ramis Archives

Oregon law provides that a contractor or subcontractor who inadvertently contaminates the owner's property may be liable for remediation costs. This liability is strict, and can attach when the contractor is not negligent. Further, the contractor may be found liable when the levels of contamination are well below regulatory thresholds and even if the property already contained levels of contamination. This situation can represent a threat to construction contractors who "borrow" presumably clean fill materials from other construction or excavation sites. One Oregon contractor recently learned just how serious the threat can be.

This contractor was required to bring in soil to mix with on-site rubble to fill the basement areas of a commercial building that had been destroyed by fire. He found materials at a new construction project from which soil was being transported to a clean landfill. The hauler was glad to deposit some of these materials at the contractor's project because the site was nearer and the hauler saved the landfill-tipping fee. Nobody observed any indication of soil contamination during removal, hauling, or placement.

When the work was done, soil sample analysis indicated very low levels of petroleum distributed throughout the fill. At arbitration, the owner presented no direct evidence that the new fill dirt contained any contamination. The contractor showed that an oil storage tank at the old building had leaked and that petroleum products had been released during the fire. Still, the arbitrator found the contractor responsible for a portion of the contamination, and charged him with the proportional cost of removing the contaminated mixture to a regulated landfill and replacing with clean fill. The arbitrator made this ruling even though the level of contamination was so low that no remediation was required.

Borrowing fill is common practice, and its efficiency can benefit all. A careful contractor will never lose sight of the risks, however, and will remember that strict liability means "no fault required." Had this contractor applied a testing protocol, creating a record that the material tested "clean" before it was placed on his project, he may have rebutted implications to the contrary. He will next time.