So Sue Me: Common Contractual Provisions and Their Role in Allocating Environmental Liability

May 1996

Citation:

ELR 10219

Issue

Author

James W. Conrad, Jr.

Editors' Summary: Under CERCLA, a liable party cannot transfer its liability, yet it can contractually arrange for a third party to ultimately bear the financial burden of that liability. The applicability of these contractual allocations of environmental liability generally hinges on judicial interpretation of representations, warranties, indemnities, and releases. This Article surveys the case law on contractual allocation of CERCLA liability. Addressing legal issues unique to particular types of contractual provisions, the Article recommends ways to use and draft such provisions.

Mr. Conrad is an Assistant General Counsel of the Chemical Manufacturers Association in Arlington, Va. In private practice until 1993, Mr. Conrad spent many years representing potentially responsible parties in connection with Superfund sites and managing environmental issues in transactions.

This Article has been adapted from articles of the same title previously published in 1 ENVTL. LIABILITY 77 (1993) and 6 HAZARDOUS WASTE STRATEGIES UPDATE 1 (Sept. 1994). The author gratefully acknowledges the substantial assistance of Maureen M. Crough and Norman F. Carlin in preparing this revision. Ms. Crough and Mr. Carlin practice in the New York office of Sidley & Austin, where they focus on environmental transactional issues. Any opinions expressed in the Article are those of the author.

So Sue Me: Common Contractual Provisions and Their Role in Allocating Environmental Liability

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So Sue Me: Common Contractual Provisions and Their Role in Allocating Environmental Liability