Indemnification Against Release/“Disposal” of Hazardous Materials

Common contractual clauses addressing the discovery of unanticipated hazardous materials typically do not adequately protect contractors and subcontractors from the impacts of such conditions.

May 18, 2020
Brian S. Wood & Miranda R. Millerick - ConsensusDocs

It is very common, if not nearly an industry standard, for construction contracts and subcontracts to contain provisions addressing the discovery of unanticipated hazardous materials. Many of these provisions require a contractor or subcontractor to discontinue work where hazardous materials are discovered. An example of such a clause can be found in the American Institute of Architects (AIA) Document A201 (2017), Section 10.3.1, which states in part:

If the Contractor encounters a hazardous material or substance not addressed in the Contract Documents and if reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and notify the Owner and Architect of the condition.

A similar clause in ConsensusDocs does not require the contractor to stop work, but provides that the “Contractor shall not be obligated to commence or continue work until any Hazardous Material discovered at the Work site has been removed, rendered or determined to be harmless by the Owner as certified by an independent testing laboratory and approved by the appropriate government agency.”

Reprinted courtesy of Brian S. Wood, Smith, Currie & Hancock LLP and Miranda R. Millerick, Smith, Currie & Hancock LLP
Mr. Wood may be contacted at
Ms. Millerick may be contacted at


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