HQ Construction, the Tennessee Department of Transportation‘s new monthly newsletter, recently highlighted in its June 2015 issue an instance when a road builder discovered what appeared to be an underground storage tank (UST). That can certainly disrupt construction, right?
During excavation activities of the I-40 Fast Fix 8 project, Kiewit Construction unearthed what appeared to be a UST associated with a building that no long existed. The UST had not been identified during the Phase I environmental assessment. Unfortunately, during excavation a track hoe operator accidentally punctured the UST, causing 1,000 gallons of water to be released into the excavated area. According to the HQ Construction newsletter, Kiewit worked with TDOT and the Tennessee Department of Environment and Conservation to safely mitigate the problem.
What should you do if a UST is discovered during construction? While the lesson above demonstrates what appears to be a happy ending, contractors should be mindful of the risks associated with differing site conditions and environmental impacts related to USTs. Here are a few tips should you find yourself in the situation as Kiewit did on the Fast Fix 8 project:
- Stop work immediately. Many contract documents require the contractor to “immediately suspend” the operations upon the discovery of an environmental hazard. Even if your contract does not address this situation, you should stop work to properly analyze the situation.
- Call others. This includes the owner (whether public or private), the architect/engineer of record, an environmental consultant or attorney, and pertinent (if necessary) environmental officials. Have an attorney check applicable laws regarding environmental reporting obligations to to see whether you have a duty to notify any other public authorities.
- Assess options. Consider immediate response activities to mitigate releases of hazardous substances or petroleum products. Depending on your jurisdiction, you may be required to develop a remedial plan, which would require the hiring of an environmental consultant or engineer.
- Preserve claims. As always, the parties’ contract should address risks such as “environmental hazards” of “differing site conditions” on the construction site. Generally, the owner of the site is required to take action to continue the work and resolve the problem. The contractor may be entitled to additional time and money for the impact of the discovery and remediation efforts.
In the situation above, it appears that TDOT, TDEC and the contractor worked together to efficiently and safely remove the UST without significant impact to the work. After the removal, the contractor was able to continue its work.
[Thanks to fellow partner and environmental attorney, Greg Young, for some added tips!]