LEGALLY SPEAKING ENVIRONMENTAL LAW SERIES: Primer on Environmental Laws Affecting Construction Between the 1960s and 1980s, Congress enacted a number of laws focused on the generation, discharge and remediation of pollutants and hazardous wastes. Over time, contractors and subcontractors became aware of regulations arising out of this legislation pertaining to construction work. These regulations include obliga- tions related to the tracking and manage- ment of pollutants and hazardous materials that these contractors brought to con- struction sites or generated during their work. In the 1990s, however, the full impact of these laws began to be realized in the construction industry. In 1992, a Federal court held a contractor liable for handling hazardous materials pre-existing on the site before the contractor’s work and for which the contractor was not contracted to transport or dispose. In Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp., 976 F.2d 1338 (9th Cir. 1992), the U.S. Court of Appeals for the 9th Circuit held an excavator liable as an “operator” of a facility and disposer and “transporter” of hazardous materials under the Compre- hensive Environmental Response, Com- pensation, and Liability Act (CERCLA), commonly referred to as “Superfund.” The contractor in Kaiser contracted to perform excavation and grading to prepare a site for the construction of a housing development by others. In performing the contract, the contractor moved and placed materials wholly on site without importing materials or hauling excess soils off site. Nevertheless, the court concluded that the contractor had disposed hazardous materials, applying a broad interpretation of “disposal” to include the movement, dispersal or release of such materials, even if wholly within the construction site. Similarly, the court interpreted “transportation” of hazardous materials to include the movement of materials on the jobsite “regardless of whether the material was conveyed to a separate parcel of land.” Finally, the court reasoned that the contractor was an operator of the “facility” (i.e., jobsite) because the contractor “had authority to control the cause of the contamination at the time the hazardous substances were released into the environment.” Cases since Kaiser have confirmed the willingness of the courts to hold con- tractors liable for violations of environ- mental laws for routine activities at a construction site, even where the con- tractors were not the original generators of the pollutants or hazardous materials. Given the increased potential for delays, impacts and liability associated with Given the increased potential for delays, impacts and liability associated with environmental conditions in geotechnical construction, this will be the first in a series of articles focusing on environmental statutes, regu- lations and case law affecting geotechnical construction. environmental conditions in geotechnical construction, this will be the first in a series of articles focusing on environmental statutes, regulations and case law affecting geotechnical construction. As a primer, below is a brief overview of the federal laws most likely to impact a construction project. Note that most states have their own set of environmental laws. Clean Water Act (CWA) The CWA regulates the discharge of pollutants into the waters of the U.S. Under Section 402 of this act, all construction sites on an acre or greater of land that discharge wastewater or stormwater directly from a point source (e.g., pipe, ditch or channel) into a surface water of the U.S. (e.g., lake, river or ocean) must obtain a National Pollutant Discharge Elimination System (NPDES) permit. A Section 404 permit is also required for the discharge of dredged material or fill material. Dredged material is “material that is dredged or excavated from waters of the United States.” Fill material is “material that replaces an aquatic area with dry land or changes the bottom elevation of a water body.” Brian S. Wood, partner, and Miranda Millerick, law clerk at Smith Currie DEEP FOUNDATIONS • NOV/DEC 2019 • 111
