1. Subcontractor is responsible, at its sole cost and expense, for transporting, treating and/or disposing of all of the waste and other materials identified in the Work Authorization (the “Waste”) in accordance with all Laws, including but not limited to Environmental Laws.
2. Subcontractor accepts legal title and sole responsibility for the Waste upon receipt of said Waste at Client’s place of business or the Project Site. Risk of loss and title to the Waste shall transfer to Subcontractor at the time the Waste is loaded in trucks or is removed from the Client’s premises or the Project Site, whichever is earlier. Any spills or uncontrolled releases of the Waste during transportation shall be the sole responsibility of Subcontractor, and all consequences including any costs of any required cleanup will be borne solely by Subcontractor.
3. If requested by ERM, Subcontractor shall be responsible, at its sole cost and expense, for properly packaging, wrapping and/or containerizing all Wastes covered by the Subcontract.
4. Subcontractor shall be responsible, at its sole cost and expense, for determining the characteristics and nature of any and all Wastes, including performing any necessary due diligence or appropriate waste sampling.
5. Subcontractor shall be responsible, at its sole cost and expense, for completing any waste manifests or other waste shipment records required by Laws, including without limitation Environmental Laws, and ensuring that appropriate copies are delivered to any transporter, treatment and/or disposal facility, the Client and ERM.
6. If a treatment or disposal facility has not been selected in the Work Authorization, Subcontractor shall be solely responsible for selecting an appropriate and legally compliant facility for the Wastes. Subcontractor represents and warrants that any and all treatment or disposal facilities to which Wastes will be taken have all required permits, licenses, authorizations, consents and approvals necessary to accept such Wastes.
7. To the extent the Wastes include non-hazardous wastes, Subcontractor represents and warrants that such waste will be taken to disposal facilities that do not accept hazardous substances, as that term is defined by the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq., other than such hazardous substances as are ordinarily found in municipal waste.
8. To the extent Subcontractor does not own the selected treatment or disposal facilities, Subcontractor shall procure and maintain non-owned treatment/disposal site insurance coverage, including both on-site and off-site liability, in an amount of not less than $3,000,000 per occurrence for all treatment/disposal sites to which Wastes will be sent. Such insurance should be specifically endorsed to include ERM and Client as additional insureds, but only with respect to liability arising from the performance of the Work.
9. Subcontractor agrees to indemnify and hold harmless the Indemnified Parties from and against any and all Claims arising out of, resulting from or associated with the Wastes removed from the Client’s place of business or ERM’s Project Site and treated or disposed off-site, including without limitation the collecting, transporting, treatment, disposal or other handling of such Wastes, under any Law whatsoever, including specifically the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et. seq., and analogues state statutes, irrespective of whether or not the Subcontractor is negligent with respect to such Wastes or has handled such Wastes in conformance with applicable law. This indemnification shall commence upon the removal of any such Wastes from the Project Site. This indemnification shall survive the expiration or any earlier termination of the Subcontract.
10. In the event of a release of the Waste to the environment or an incident or occurrence that could result in a release of the Waste to the environment, Subcontractor will immediately (i) notify ERM, (ii) take all actions necessary to protect health, property and the environment as required under the circumstances, and (iii) without limiting the foregoing, take all actions required by applicable Laws.
11. Subcontractor shall transport the Waste in vehicles specified by the U.S. Department of Transportation, the U.S. Interstate Commerce Commission, the transportation department of the state or states having jurisdiction over these transportation sources and any local governmental agency having jurisdiction over the Services for the transportation of the Waste.
ERM Legal Department
March 8, 2010