Asbestos Abatement Contractor Not Liable When Owner Sued by EPA

Kegler Brown Construction Newsletter

In a case of great concern to property owners and managers, a trial court in Montgomery County has ruled in the case of Beerman Realty Co., v. Alloyd Asbestos Abatement Co. (Case No. 93-3440) that an owner has no right to recover attorney's fees and its EPA fine against a contractor who allegedly failed to abate asbestos consistent with the Clean Air Act. The Court ruled that each party was responsible for its own attorney's fees and fines, and interestingly, that any indemnity provision shifting this risk to the contractor would be unenforceable. It is the latter position that is most troubling to owners, who have traditionally attempted to shift the risk of regulatory compliance to the person actually performing the work by such an indemnity provision in the prime contract. The case is currently on appeal.