David Brooks published an editorial that extols the energy and economic virtues of natural gas and the discovery of how to extract it from shale. The big surprise is that it was published in the New York Times, which has taken a very negative approach to shale gas drilling and hydraulic fracturing, particularly in New York.
A few years ago, I received a call from a bankruptcy trustee,
who said he had a environmental problem he was struggling to resolve.It seems a company had developed a “mulch
business” that had ultimately led to bankruptcy, and liquidation at that.What may be surprising to some is the waste
involved seems so innocuous at first thought.
The problem related largely to construction debris.
Construction debris and wood waste (including trees and
branches) had been collected by the mulching company and placed over several
acres. The owner ultimately took the
money to receive the material, but then abandoned the site and never mulched or
did anything else with the material.The
city was very concerned about the growth of vermin and a substantial potential fire hazard. Home and business owners nearby were very
I was engaged by the trustee and the city to attempt to
identify potentially liable parties who had brought the waste to the site or
whose waste was brought there. The owner
had left all of the records for everyone who brought material, and we were
preparing to file suit against all of those parties to try to recover the costs
of addressing the acres of waste.
The city was able to get the Texas legislature to appropriate several
million dollars, and the lawsuit was never filed--all those developers, building owners, contractors, and subcontractors lucked out. But they are not and will always be so lucky.
In another case, I represented a landowner whose land had
become the dumping ground without their permission. One trucker illegally dumped on it, and then
within a short time, the word got out, and several acres were covered with
wood, shingles, bricks, and soil. What other wastes may have been mingled in or what contaminants were in soil was unknown.
The lesson is that construction waste can become a
significant potential liability for the owner of the project or the contractors
Other cases have involved disposal of contaminated soil on
an unknowing person’s land, who is looking for fill, or who, like my client, may not have wanted
any material placed on their land.
Recently, one my clients had a subcontracting trucking firm
dump soil excavated from an area where contamination from a
former underground storage tank had been located. The soil had to be excavated for construction of a building. The soil was supposed to go to a landfill, but the environmental consultant engaged to monitor the contractor and subcontractors noted several waste manifests did not come back from the designated landfill with signatures or any weight tickets.
The issue of who is liable for this misplacement of affected soil, and what damages
will arise for remediation costs and any property damages arises. What about liability if the material is placed into wetlands, if
there were fish kills? Could it become a criminal matter?
The liability risks can grow, particularly if the state or
federal government holds the owner liable and the construction contractor or
sub contractors are unable or unwilling to cover the loss or address the issue.
In representing clients preparing for and engaging in clearing, demolition, grading, and construction, I have found there are ways to try to avoid these risks and be prepared to manage them. Some steps that can be taken to reduce the risk of
incurring environmental liability for construction debris or soils management during a
Establish contractual provisions to address construction
debris and soil management;
Ensure environmental laws and regulations are met;
Deal with safety issues for construction workers;
Consider environmental insurance for the project, negotiated
to cover these risks;
Obtain indemnities from the contractor;
Understand what the state will allow for managing debris and
affected soil on-site and off-site;
Develop a waste management or soil management plan, and have
the state environmental agency review and, if they will, approve it;
Have a tracking process for hazardous and non-hazardous
waste, that which must go to a landfill and to a site for unrestricted fill;
Engage an in-house person or outside environmental consultant to review and oversee the process to determine if waste manifests or trip tickets area coming
back and are properly filled out.
Best practices in this area may save your company or entity
a significant amount of money in avoiding some of the horror stories that can
arise when construction debris or soil ends up in the wrong place. Trucking companies hauling debris or soil from construction sites are renowned for looking for the cheapest and easiest way of getting rid of the material. A little preventative medicine may go a long
On October 15, 2013, the U.S. Supreme Court granted the appeal of various entities challenging the EPA's greenhouse gas permitting rules for stationary sources under the federal Clean Air Act (CAA). In 2007, in Massachusetts v. EPA, the court ruled that EPA may regulate greenhouse gases as air pollutants under the CAA. The decision led the EPA to regulate greenhouse gas (GHG) emissions emitted by auto mobiles, and then EPA concluded that once those gases were regulated, the EPA was required to regulate GHGs emitted from stationary sources, such as power plants and refineries. EPA then issued a series of regulations leading to permitting standards for certain very large sources that emit above a certain amound of GHGs when a new plant is constructed or an existing plant is modified.
On appeal, various
state and industry groups challenged these rules on the grounds that
they were based on an improper construction of the Clean Air Act and are
arbitrary and capricious because they are based on an inadequate
scientific record. The DC Circuit Court of Appeals rejected these appeals. The Supremen Court now has granted review of the EPA regulations, but not as to whether GHGs may be regulated at all, but on a much narrower ground.
Did the EPA permissibly determine that its
regulation of greenhouse gas emissions from new motor vehicles under the
Clean Air Act also triggered permit requirements for stationary sources
of greenhouse gas emissions?
While narrow, the decision by the Supreme Court is an important one with respect to the EPA's program for regulating GHGs from various stationary sources. The EPA is in the process of developing standards for new power plants and existing power plants in the near future. Thus, the decision will be another landmark environmental ruling when issued.