Contract documents

February 28, 2023

As a facility maintenance contractor performing work at an existing facility, you may run into hazardous materials and wastes either on the site or adjacent to the site you will perform work.  The facility operations may include printing, drycleaning, on-site soap manufacturing, biotechnology, auto repair, machining or fabrication, transportation or fueling. While some facilities may have obvious signs of potential hazardous material usage or waste generation, others may not. Some facilities may use underground storage tanks to store fuel or other hazardous materials that cannot be seen or known without proper inquiry or inspection.

Improper identification, management and removal of hazardous materials and wastes may lead to fines, business interruptions, or lawsuits for not only the facility owner, but also for any contractor who may have mishandled it or caused it to spread further into newly impacted areas. When considering your next facility maintenance project, it is important to consider the potential impacts of hazardous materials and wastes to your scope of work, which includes two key considerations below.

1. Facility Operations. Ask your client about the operations of the facility to determine whether heavy chemicals, oils, fuels or even biological material are stored, used or generated during operations, and, if applicable, determine the location of the potentially hazardous condition in relation to the work you will perform. Additionally, ask your client whether the facility itself may contain construction materials with asbestos, polychlorinated biphenyl, or lead that may need to be abated by a specially licensed company in order for you to perform your work.
2. Inspect the Facility. Walk the facility where you will perform your facility maintenance work to determine if there are any visual signs of hazardous materials or wastes. During this site inspection, look at the facility operations, the surrounding area, any possible underground storage locations, and the construction materials used in the building.

If you become aware of any hazardous material or waste, or if you are concerned about its potential impact on your project, communicate your concern with your client, and document it properly. In some cases, you may need to rely on third-party professionals to determine whether a hazardous material or waste is or was present, and whether it will impact your scope of work.

AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.