A project owner attempted to require a contractor to dispose of hazardous levels of PCBs the contractor removed from the interior of standpipes it was working on. After having completed its work of blasting and repainting the interior of the standpipe, the contractor learned that paint chip samples tested positive for hazardous level of PCBs. It notified the Owner of the testing results and took various actions, including stopping the transfer of the hazardous waste to a landfill and returning it to the worksite and confining its contaminated equipment. The Owner then stated that the contractor was responsible for disposing of the waste and completing any necessary remediation. The Contractor disagreed and replied that the PCB-laden chip waste from the interior of the standpipe was an unanticipated hazardous environmental condition that was not expressly identified in the contract as being within the scope of the work and, thus, Owner was responsible for remediation. When the contractor ceased performing work, the Owner filed suit for breach of contract. Summary judgment was granted to the contractor and affirmed on appeal, with the courts finding that the contractor was entitled to rely upon the accuracy of the site data provided by the Owner regarding the presence of environmental hazards. That data showed only low levels of lead-based paint and PCBs on the exterior of the pipe and no reference to the interior of the pipe. Because the PCBs on the interior of the pipe were not expressly identified by the Owner the Contractor was entitled to summary judgment. Town of Colonie v. Global Contracting & Painting, Inc., 237 A.D. 3d 1280 (2025).
The court explained as follows:
“Initially, we agree with Supreme Court that the terms of the contract concerning hazardous conditions present at the project site are unambiguous. As relevant here, the contract required Global to “abate lead-based paint … and PCB containing paint on all of the exterior surfaces” of the standpipe and ancillary equipment, and to comply with federal regulations “during the removal of the coating system (paint) on the exterior of the [standpipe].” Further references regarding acceptable removal and abatement methods and requirements, again, solely concerned the standpipe’s “exterior.” Global would not be held responsible “for removing or remediating any Hazardous Environmental Conditionencountered, uncovered, or revealed at the [s]ite unless such removal or remediation is expressly identified in the [c]ontract [d]ocuments to be within the scope of the [w]ork.” To this end, the parties’ agreement provided that Global was permitted to “rely upon the accuracy of the [t]echnical [d]ata expressly identified” by plaintiffs regarding the presence of environmental hazards.”
“Affording the terms of the contract “their plain and ordinary meaning”), we find thatGlobal met its initial burden on summary judgment on this issue, as its submissions indicate that the presence of PCBs in the interior of the standpipe was not “expressly identified” in the information provided by plaintiffs.”
Comment: It is unfortunate that project owners seem to be attempting to restrict or even eliminate the ability of contractors and designers to rely upon information, documentation and site data provided by the Owner. We are seeing contracts stating that no reliance is allowed whatsoever. We are seeing contracts stating that soil borings and other site data provided to bidders is only for general information and that instead of relying on that data, the bidders are required to do their own “inspections” and “investigations” before bidding. When we see such clauses, we attempt to negotiate something more reasonable. We will, for example, attempt to add a clause clarifying that any pre-bid inspections and investigations done by the designer or contractor will not include “subsurface or intrusive investigation.” Another idea is that instead of allowing the contractors and designers absolute reliance on data provided by the Owner, the clause can be revised to state that it must be “reasonable” reliance or that the contractors and designers must exercise reasonable care in relying on such data.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 27, No. 5 (July 2025).
Copyright 2025, ConstructionRisk, LLC
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