Architects/Engineers and Environmental Liability

The architect and engineer industry likes to think it has protected itself by the use of certain clauses in their contracts. These clauses were developed by the American Institute of Architects and the Engineers Joint Contract Documents Committee and are an attempt to shield architects and engineers from laws and litigation for hazardous waste.

Potential Liability

Architects and engineers can find themselves liable for hazardous waste violations inadvertently. Some of the precautions that can be taken include:

Architects and enginners by sending their employees into potentially contaminated areas may have significant responsibilities, under OSHA and other regulations, to provide expensive training and protection.
Owners (in particular public owners) are requiring design firms to agree to take asbestos or other pollution abatement consulting activities under their “wings” as part of the prime A/E agreement.
Owners are asking design firms to agree in their contracts not to specify any product containing hazardous materials, which is an impossibility.
Professional Liability Insurance for A/Es hiring environmental consultants as part of an overall prime design contract is inadequate or nonexistent.
The Solution

Certainly use the contract clauses that will provide some protection for A/E professionals, but in addition there are additional steps that can be taken.

Client Education

Most clients want the A/E to absorb environmental consulting for reasons of convenience, i.e., only one invoice to pay instead of two. A/Es can educate clients about the enormous risks being transferred to the A/E merely to make some bookeeper’s life easier.

Risk Transferral

Indemnity clauses such as that in EJDC 1910 are of limited utility, depending upon the financial strength of the indemnitor and the scope of the applicable “Anti-Indemnity Statute,” but they’re better than nothing.

Proper Definition of Responsibilities

It’s the Owner’s land and building, not yours, and Owners shouldn’t be permitted to get someone else to “own” their problem. Insist on proper contractual arrangements:

Avoid engaging the environmental consultant directly. The Owner should retain and pay the consultant directly, even if you are “coordinating” the latter’s services.
All environmentally-sensitive decisions should ultimately be left to the Owner. E.g., if the Construction Documents call for the removal and transportation of hazardous materials from the site, the Owner or Contractor (and not you) should decide where to haul the stuff.
Leave means and methods to the Contractor. If you have to specify remediation in your documents, the specs should be based on performance and qualifications criteria and should not tell the contractor what to do.
General Good Practices

Do not sign any environmentally-related documents (e.g., transportation manifests).
Have any environmentally-related documents bound separately from your own.
Insist the Owner test its facility before construction begins (this is the law, anyway).
Consultants. Make sure consultants are properly qualified and adequately insured.