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Does a Contractor Have a Duty to Independently Assess a Hazard?(From the July 2000 issue of Demolition, published by the NADC)
By Perry R. Safran, Pat A. Cook, Attorneys and Tim J. Fitzgerald, Claims Analyst Safran Law Offices, Raleigh, North Carolina
Construction work, particularly in the renovation of older facilities, has its own unique set of problems, not the least of which are hazardous materials. It is not uncommon that an owner contracts for the renovation of his building and expects to take possession on a certain date only to find out that the entire project is brought to an abrupt halt because the construction crew encountered lead paint, asbestos or some other hazardous materials which require either containment or abatement.
The question then arises: who bears the responsibility to remove the hazard or discover the hazard before construction work begins on the premises?
Because the issues of liability are unclear, there is no easy answer. In most cases, a project owner will know if it is likely that hazardous material exists on a project because of the age of the existing structure. Normally an owner will perform an environmental hazards assessment before work begins.
In general, contractors do not have a duty to perform an independent assessment, however a good practice to follow would be for a contractor to raise the issue of a potential environmental hazards investigation before beginning work on the project. Avoid conflicts with the owner by determining what is expected of you should hazardous materials be encountered.
Project owners have a duty to contractors to perform an assessment and inform contractors of known hazards on a project. In turn, contractors have a duty to inform the owner of potential environmental hazards which the contractor knows, or should know, by experience that they are likely to encounter.
As part of this duty owed by contractors to their employees, a contractor should question an owner regarding the performance of a hazardous materials assessment as relates to the project. The contractor's duty to his employees is even clearer when the contractor has reason to believe that lead paint, asbestos, or other hazardous materials are present and he also knows that the owner has not performed an environmental assessment.
If a project has proceeded into actual construction without a needed evaluation of hazardous materials on the project (i.e., contracts have been signed, plans submitted, and permits issued) and a contractor discovers hazardous materials, he has a duty to report this to the owner.
Once the contractor has informed the owner of the existence of hazardous materials, the owner now bears the responsibility to have the hazardous materials properly removed. In many cases, the contractor working on the job will not be the party to contain or abate the hazard because a special permit and license are required to perform this work. Even though a contractor's name is on the building permit, most often the party that has the ultimate responsibility to pay the costs and perform the hazard abatement is the project owner.
Beware, however, contract language that specifically requires a contractor to perform this work. When lead paint, asbestos or other similar hazards are found, a building inspector will evaluate the impact of the hazard. The hazard must be abated or contained and a second inspection performed. Once the hazard is addressed, work on the project can proceed as normal.
As far as OSHA is concerned the owner must perform an assessment under General Industry Standard (29 CFR 19101001) or Construction Standards (29 CFR 19261101). All contractors should be familiar with the OSHA Construction Standards to determine their specific duties and requirements once asbestos or other hazardous substances are encountered.
Depending on contract language, a contractor may have to duty to independently assess a hazard. However, with proper awareness and safeguards, a contractor can protect his business from such liability pitfalls.