First Environment was retained as an expert witness for a litigation case involving the disposal of illegal fill at the Thomas Jefferson and Martin Luther King, Jr. Schools located in Trenton, New Jersey. The illegal filling occurred during the redevelopment and construction of a new school on the site where oversight contractors, including the site architect, environmental consultant, construction project manager and construction contractor failed to regulate what types of fill was being used on the site prior to the construction of the new school.
The remedy for the illegal filling was the demolition of the partially constructed new school building and the removal of the illegal fill. The original school project cost $25,000,000 and the damages for removing the fill and demolishing the school building amounted to $14,000,000. The New Jersey Schools Development Administration incurred the damages for the removal of the fill and the reconstruction of the demolished structure.
First Environment reviewed the procedures used by the contractors to evaluate the fill and for the construction of the new school on the fill. We are currently reviewing the environmental regulatory framework and the violations of such framework for this type of construction. Specifically, we are reviewing how the beneficial reuse determination regulations were not followed and how such a “BUD” determination should have been approached. We are also reviewing the environmental consultant’s and architect’s alleged violation of the standard of care for their professions and the alleged violations of the construction contract specifications and NJDEP’s Technical Requirements or Site Remediation (N.J.A.C. 7:26E-1.1 et seq.) as well as other environmental regulations and guidance documents.
At the heart of the matter was whether engineering and institutional controls should be allowed to cap the fill material or whether the material should be removed. Because the school is attended by young children, the removal action was viewed as the best action for the construction. As such, the school building, which was 30% complete at the time, was demolished and the fill was removed and taken to a secure landfill for proper disposal.
Issues at the site include the possible negligence of the contractors for not requesting the proper analyses of the fill material prior to it being used. In addition, the contractors failed to inform the owner of the school that they were using the illegal fill, and did not properly manage the work by failing to inspect and test the fill and failing to properly oversee the actual delivery of the fill material to the site. The contractors also proceeded with the construction of the school without properly notifying the owner of the schedule or time frame.