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March 19 - March 25, 2012

What is the owner’s obligation to inform a contractor about lead or other hazardous material in a coating to be removed or disturbed?

Answers Votes
Owners should proactively test the coating and disclose the results. 64%
Owners should disclose the possibility of the hazard, but needn’t do more. 10%
Owners should respond to questions, but the primary duty is the contractor’s. 26%

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Tagged categories: Lead; Paint and coatings removal

Comment from Anna Jolly, (3/19/2012, 9:40 AM)

I believe that under OSHA's lead standard the owner has the resposibility of informing the contractor. The owner can be cited under the multiemployer worksite rule if this information is known and not communicated to the contractor. It is significantly cheaper for the owner to ignore the possiblity that the structure may contain lead and hire a contractor that does not have the knowledge or training that is required for handling lead projects. OSHA will cite the contractor and in addition will cite the owner. This will be percieved as hiding information by OSHA and the fines will reflect that.

Comment from Nicholas Papleacos, (3/20/2012, 9:36 AM)

A lengthy legal article could be written in response to this poll. Generally, a contractor bidding a project assumes the risk of the conditions of the site. If this is a Federal project, the contractor may obtain financial relief i.e., the cost of performing the project under lead abatement requirements if the contract has a Differing Site Conditions clause. Usually, contracts between private entities do NOT have such a clause. In a private setting, the contractor would be required to show that the Owner had some superior knowledge of the possible existence of a hazardous metal in the existing paint under a theory of intentional misrepresentation (fraud)in order to obtain financial relief. My vote in the poll was for the Owner to proactively test and disclose, simply because it puts ALL bidders on the same footing, and lessens the chance that someone will be surprised by the existence of hazardous metals. None of my clients like lawsuits, despite their contribution to my kids' college funds.

Comment from M. Halliwelll, (3/21/2012, 10:40 AM)

Of course, it does depend on the jurisdiction...I'm not in the US, so the regulations I deal with are different. I do know that here, the owner has an obligation under our regulations to inform the contractor of any hazardous condition that they know of or suspect may be present, including possible lead. From that point, who does the testing is up for negotiation. Better to be proactive, in my books, to have the information rather than to try to cover your butt later when the health and safety folks come knocking at your door.

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