Environmental Law 101 for Business Lawyers

Transcription

1 Environmental Law 101 for Business Lawyers David E. Nash McMahon DeGulis LLP Cleveland, Ohio

2 ENVIRONMENTAL LAW 101 FOR BUSINESS LAWYERS 2016 OSBA Business Law Conference May 23, 2016 David E. Nash I. Federal and Ohio Liability Schemes for Companies. A. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (enacted 1980, amended 1986 and 2002). 1. Purpose. The goal of CERCLA is to cleanup inactive hazardous waste sites. CERCLA authorizes cleanup where there has been a release of a hazardous substance into the environment. In cleaning up a CERCLA site, US EPA may force the potentially responsible parties (PRPs) to cleanup the site, or US EPA may cleanup the site and seek reimbursement from the PRPs. 2. Authority. a. Federal Statute: 42 U.S.C. Sections 9601 to b. Federal Regulations: 40 C.F.R. Parts 300 to 372. c. No direct Ohio equivalent although the Ohio Voluntary Action Program has some overlap. (see Section I.B. of this document.) d. Also see Ohio Revised Code Chapter 3734 for analogous Ohio enforcement and involuntary remediation tools. 3. Framework of CERCLA Liability. a. Definition of Hazardous Substances. i. Hazardous substance. Under CERCLA, hazardous substance includes substances designated as such under CERCLA regulations, designated as hazardous and toxic under the Clean Water Act, qualifying as hazardous waste under the Solid Waste Disposal Act, designated as a hazardous air pollutant under the Clean Air Act, and designated as an imminently hazardous chemical substance or mixture under the Toxic Substances Control Act. ii. Petroleum exclusion. Petroleum and petroleum products are excluded from the list of hazardous substances which may give rise to liability under CERCLA Section 107 if released. Therefore, there is no private right of action under CERCLA due to a release or leak from a petroleum or gasoline underground storage tank. Instead parties should look to RCRA. b. Liable Parties. The following parties are subject to liability under CERCLA: i. The current owner or operator. The owner or operator of a facility at which hazardous substances have been disposed. Current owner or operator can be broadly interpreted to include, lessors, lessees, corporate officials, shareholders, parent corporations, successor corporations, and lenders under certain

3 ENVIRONMENTAL LAW 101 FOR BUSINESS LAWYERS-PAGE OSBA Business Law Conference May 23, 2016 David E. Nash dnash@mdllp.net circumstances. The concept of operator looks at a person or entity that had sufficient control to prevent the release. (a) Practice Note: Successor Liability. State law applies when determining whether a successor is liable for CERCLA liability. Mickowski v. Visi-Trak Worldwide, LLC, 415 F.3d 501, 515 (6 th Cir. 2005). This means that, when acquiring a corporation, the environmental assessment should evaluate the possibility of liability for off-site disposal of hazardous substances, including on any property that had ever been owned or operated by the selling corporation. ii. The past owner or operator. The owner or operator who at the time of disposal of any hazardous substance owned or operated the facility. (a) Practice Note: Liability under CERCLA is retroactive liability may result from conduct occurring prior to CERCLA s effective date. iii. The arranger. Any person who by contract, agreement or otherwise arranged for disposal or treatment, or who arranged with the transporter for transport, disposal or treatment of hazardous substances at any other facility. (a) Practice Note: A party that divests itself of hazardous substances is only liable where it intended to dispose of hazardous substances and not where it intended for the product to be a new and useful substance. Burlington Northern v. United States, 556 U.S. 599 (2009). Following Burlington, lower courts have struggled with less clear-cut cases or mixed motive cases. See American Premier Underwriters v. General Electric Co., 2012 WL , No. 1:05 cv 437 (S.D. Ohio Sept. 30, 2012) (seeking to determine the purpose of the transaction). iv. The transporter. Any person who accepts any hazardous substance for transport to disposal or treatment facilities or sites selected by the transporter. c. Extent and Nature of Liability. i. Liable parties are jointly and severally liable for: (a) All costs of removal or remedial action incurred by the United States or a state; (b) Any other necessary response costs incurred by any other person; (c) Damages for injury to, destruction of or loss of natural resources; and Environmental l Toxic Tort l Litigation

4 ENVIRONMENTAL LAW 101 FOR BUSINESS LAWYERS-PAGE OSBA Business Law Conference May 23, 2016 David E. Nash dnash@mdllp.net (d) The costs of any health assessment or health effects study required under law. ii. Liable party can avoid joint and several liability if there is a reasonable basis for apportionment. d. Defenses to Liability. i. Act of God. ii. Act of War. iii. Act or omission of a third party. If the defendant establishes that (a) he exercised due care with respect to the hazardous, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions. iv. Innocent Landowners, who (a) Must buy the property without knowing or having reason to know of contamination on the property; (b) Perform all appropriate inquiry prior to purchase; and (c) Comply with continuing obligations. v. Bona Fide Prospective Purchaser, who (a) May buy property knowing or having reason to know of the contamination of the property; (b) Perform all appropriate inquires; (c) Not affiliated with other potentially liable person; and (d) Comply with continuing obligations. vi. Contiguous Property Owner. (a) Owners of property that is not the source of contamination (such property is contiguous to or otherwise similarly situated to a facility that is the source of contamination found on their property); (b) Perform all appropriate inquiry prior to purchase and buy without knowing or having reason to know of contamination on the property; (c) Not affiliated with other potentially liable person; and (d) Comply with continuing obligations. Environmental l Toxic Tort l Litigation

5 ENVIRONMENTAL LAW 101 FOR BUSINESS LAWYERS-PAGE OSBA Business Law Conference May 23, 2016 David E. Nash dnash@mdllp.net vii. Contractual arrangements. (a) Some courts have held that private parties can shift or apportion CERCLA liabilities as between themselves through indemnity provisions. The indemnity provisions must specifically refer to CERCLA liabilities. The contractual agreement, however, does not bar a cost recovery action from a third party. e. Private Right of Action. Any person who expends response costs may recover those costs from any liable party. Parties liable under Section 107(a) may seek contribution from other liable parties. As between liable parties, costs are allocated based upon principles of fairness and equity. 4. Reporting Requirements: a. Release Reporting. CERCLA Section 103(a). i. Any person who is in charge of a facility must notify the National Response Center as soon as he has knowledge of a release of a reportable quantity of hazardous substances from his facility. ii. Penalties for failing to notify include fines and possible imprisonment. b. Historic Releases. (103(c)). EPA has interpreted Section 103(c) as imposing a continuing obligation to report historical releases that are discovered subsequently. B. Ohio Voluntary Action Program (VAP). 1. Purpose. VAP gives individuals a way to investigate possible environmental contamination and clean the contamination up if necessary in exchange for a promise from Ohio that no more cleanup is necessary. VAP minimizes governmental red tape and maximizes private resources and expertise. 2. Authority. a. Ohio Statute: O.A.C. Chapter et seq. 3. Regulatory Framework. 1. The property owner ( volunteer ) may clean up a property, consistent with Ohio EPA requirements, in exchange for a Covenant-Not-To-Sue (CNS) from Ohio EPA. 2. Voluntary Actions include: a Phase I Property Assessment, a Phase II Property Assessment, a Sampling Plan, a Remediation Plan, Remedial Activities, and anything else to address the contamination by hazardous substances. Environmental l Toxic Tort l Litigation

6 ENVIRONMENTAL LAW 101 FOR BUSINESS LAWYERS-PAGE OSBA Business Law Conference May 23, 2016 David E. Nash dnash@mdllp.net Voluntary Actions must be performed by Certified Professionals (CP) and Certified Laboratories. 4. If the CP determines that the property meets VAP standards, the CP will prepare a No Further Action (NFA) letter for submission to Ohio EPA. 5. Ohio EPA must issue a CNS to volunteers who submit a proper NFA. 6. The CNS releases the volunteer from all liability to the state, except for: (1) claims for natural resource damages (a mandatory state claim under CERCLA); and (2) claims for clean-up costs if EPA takes any action at the site, which results in the state incurring costs. This release is also restricted to the issues addressed in the NFA and as long as the property is maintained and used as intended under the CNS. 7. Participation in the VAP cannot be used as evidence in a civil or criminal prosecution. Information and data obtained through the VAP is inadmissible and not discoverable in any administrative or judicial action. 8. Ohio EPA conducts audits of VAP properties. Random audits are required by rule and other audits may be conducted as well. II. Transactional Due Diligence Strategies. As noted above, environmental laws can impact business transactions and can result in significant liability. The evaluation of environmental risks is a key component in any real estate or corporate transaction. A. Due Diligence. The scope of the due diligence must be sufficiently broad to include analyses of any and all potential environmental liabilities when conducting a corporate or real estate transaction. B. ASTM Standards. An environmental assessment is the key component for any real estate transaction. The American Society for Testing and Materials (ASTM) Phase I evaluates the likelihood of the presence of hazardous substances on a property. The purpose of the Phase I is to identify any recognized environmental conditions ( RECs ) that require further investigation. A consultant may determine that a Phase II is necessary requiring sampling and other investigations of any environmental conditions. 1. Environmental site assessments provide buyers with a defense to potential CERCLA liability under the innocent landowner defense. 2. Once assessments are complete, the parties must allocate the potential liabilities through representations, warranties and indemnification provisions. Environmental l Toxic Tort l Litigation

7 ENVIRONMENTAL LAW 101 FOR BUSINESS LAWYERS-PAGE OSBA Business Law Conference May 23, 2016 David E. Nash dnash@mdllp.net C. Compliance Audit for Stock or Asset Purchase. 1. If business assets or stock are being acquired, in addition to environmental assessments of real estate to be acquired, compliance of the seller with environmental laws is also imperative. 2. In addition to uncovering possible liabilities and costs to bring an acquired company into compliance, this kind of due diligence can, under some circumstances, provide legal protection against enforcement against the company for violations. a. Practice Note: A generic due diligence checklist is attached hereto for reference. D. Internal environmental audits. Internal environmental audits following closing are also key to insuring that environmental risks and liabilities are effectively managed. 1. There is no bright line as to whether information obtained in an internal audit can be protected from disclosure. Typically, the underlying facts are discoverable but conclusions are not. To maximize the potential for confidentiality, outside counsel should control all meetings and documents relating to the audit and request for outside counsel assistance with an audit should be documented. 2. EPA s Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations (a.k.a. EPA s Audit Policy) provides incentives for companies to voluntarily discover, promptly disclose and correct environmental violations. Disclosure can result in the elimination or substantial reduction of civil penalties, or a determination not to prosecute a criminal violation. 3. Ohio and many other states have self disclosure and audit immunity privilege laws. Under Ohio law (O.R.C ), a facility can be immune (with caveats) from civil and administrative penalties. Disclosure must be prompt and voluntary. Ohio s law also provides that a privilege can attach to environmental audits to protect it from discovery. E. Environmental Insurance. 1. Can be useful tool in conjunction with, or in some cases, in lieu of due diligence. 2. Types: a. Legal liability b. Cost Cap 3. When less due diligence is more a. Exclusion for known environmental conditions Environmental l Toxic Tort l Litigation

8 ENVIRONMENTAL LAW 101 FOR BUSINESS LAWYERS-PAGE OSBA Business Law Conference May 23, 2016 David E. Nash dnash@mdllp.net Markets III. Deal Structure and Key Contract Provisions. A. Deal Structure Why it Matters. 1. Real estate only. 2. Assets only. 3. Stocky only. 4. Merger. B. Key Contract Provisions. 1. Pre-Contract or post Signing due diligence? a. Access. b. Indemnification. c. Data sharing. 2. Definitions. 3. Representations and warranties. 4. Covenants. 5. Indemnification. 6. Schedules. Environmental l Toxic Tort l Litigation

9 ENVIRONMENTAL LAW 101 FOR BUSINESS LAWYERS-PAGE OSBA Business Law Conference May 23, 2016 David E. Nash dnash@mdllp.net EHS DUE DILIGENCE CHECKLIST Any and all air source permits. Copies of any monitoring data or reports required by such permits shall also be included. Any and all water discharge permits (including direct discharge permits such as NPDES permits, indirect discharge permits, such as pretreatment or industrial user discharge permits to POTW s, and stormwater discharge permits). Copies of any monitoring data or reports required by such permits shall also be included. Any and all internal or external environmental assessments, including Phase I and Phase II studies, compliance audits and inspections and reports prepared by public agencies or their contractors. Any and all correspondence to or from US EPA or any state or local agency having jurisdiction over the facilities. Any and all records relating to storage, treatment, or disposal of solid and/or hazardous wastes, including names of transporters, disposal sites, treatment sites, closure reports contingency plans, manifests, permits etc. Any and all records relating to operation, use, closure, or removal of underground storage tanks or above-ground storage tanks, including reports of releases and any associated soil or groundwater contamination. Any and all records relating to PCB s, including sampling data or operation and maintenance plans for transformers or other electrical equipment. Any and all records relating to asbestos or asbestos containing materials, including surveys, operation and maintenance plans, and removal or encapsulation projects. Any and all citations, notices of violation, enforcement orders, complaints, demands, orders, court actions, administrative actions, or similar documents whether from public agencies or other third parties. Any and all OSHA Hazard Communication training programs, related materials, and MSDS materials. Any and all material related to SARA Title III compliance. Any and all records related to potential CERCLA liability or similar liability under state or local laws, including CERCLA requests for information, general or special notices of potential or actual responsibility, Section 106 orders, consent decrees, pleadings related to cost recovery actions, other settlement agreements or participation agreements. Any and all records related to worker health and safety and OSHA compliance, including citations, notices of violation and the resolutions thereof, lock out-tag out procedures for plant equipment, confined space entry procedures, workers compensation records etc. Any and all other internal correspondence, memoranda, or other records materially relating to environmental protection or worker health and safety. Environmental l Toxic Tort l Litigation

10 Environmental Law 101 for Business Lawyers Ohio State Bar Association Business Law Conference May 23, 2016 Environmental Liabilities Associated with Business Transactions The Legal Issues: CERCLA State Legislation-Ohio Revised Code Chapter 3734 Enforcement State Legislation-- Ohio s Voluntary Action program

11 CERCLA Purpose and Objectives of CERCLA Goal of CERCLA Standards of liability Responsible parties Defenses CERCLA Cost Recovery Actions CERCLA can be expensive Avoid liability under CERCLA

12 CERCLA Release Reporting Obligations Under CERCLA Triggering Event Felony if not reported Historic Releases Liability Concerns of Owner CERCLA is a strict liability statute that automatically attaches liability to current landowners. But there are defenses from liability that can protect you Innocent Landowner Defense Bona Fide Prospective Purchaser Contiguous Property Owner Governmental Immunity Response to emergencies Involuntary acquisition of property

13 Innocent Landowner Defense Purchaser of property does not know and has no reason to suspect that contamination exists at the time of purchase. Elements: Contamination occurred before landowner acquired the property. Landowner conducted all appropriate inquires into previous ownership and uses of the facility. Exercised due care and complied with all continuing obligations. Bona Fide Prospective Purchaser Purchaser of property knows contamination exists at the time of purchase but who acts appropriately in light of the contamination. Elements: Contamination occurred before landowner acquired the property. Landowner conducted all appropriate inquires into previous ownership and uses of the facility. Complied with all continuing obligations. Is not affiliated with any PRP.

14 Contiguous Property Owner Where the only source of contamination i is a contiguous property and the landowner did not know the property was contaminated. Elements: Landowner did not cause, contribute to, or consent to the release or threatened release of hazardous substances. Landowner made all appropriate inquires into the previous ownership and uses of facility. Landowner did not know and had no reason to know that the property was contaminated. Complied with continuing obligations. No affiliation with any PRP. Elements Common to all Landowner Liability Defenses 1. All Appropriate p Inquiry Based on ASTM Standard EJ (10/5/2015) 40 CFR Phase I Assessment 2. Continuing Obligations Exercise appropriate care including reasonable steps to stop release. Fully cooperate with authorities. Comply with land use restrictions. Cooperate with information requests. Provide legal notices as required. 3. No Affiliation with a PRP

15 Governmental Immunity Involuntary Acquisition Includes obtaining property through Sheriff s sale and deeds in lieu of foreclosure Must comply with Ohio Revised Code procedures Must not cause or contribute to the contamination Emergency Response Must be undertaken in response to or to prevent release of hazardous constituents Applies to Health, Fire, Building and Housing alike Actions may not be grossly negligent or the result of intentional misconduct Includes obtaining property through Sheriff s sale and deeds in lieu of foreclosure Must comply with Ohio Revised Code procedures Must not cause or contribute to the contamination Ohio EPA Enforcement Options No Analogous CERCLA in Ohio law ORC Chapter 3734 is surrogate for CERCLA Ohio EPA Tools include Findings and Orders, civil judicial enforcement, and in certain cases, criminal enforcement Strict Liability similar to CERCLA Get out of jail (not free) Card is Ohio VAP

16 Ohio VAP Legislation (1994) Private sector driven with Certified Professional Certified Professional issues a No Further Action letter summary of cleanup Ohio EPA issues a covenant not to sue if property meets standards Tool for cleanup Ohio EPA developed chemical-specific cleanup standards for brownfield properties Valuable tool for private sector because they are the only cleanup standards that have been promulgated in Ohio.

17 Do You have an eligible property? Currently regulated? Currently under enforcement? Hazardous waste or solid waste facility, UST, Oil and Gas well? Any or all of the above are not eligible. Who do You need? Ohio EPA (But See Private VAP slide) Certified Professional Certified Laboratory Local development department/community helpful!

18 Ohio EPA Eligibility issues Possible financial assistance Certifies/lists CPs Technical Assistance/Review Certified Professional Eight years brownfield cleanup experience Authorized by Ohio EPA to sign off on documents Key interface between community and state agencies

19 Certified Laboratory Licensed by Ohio EPA Certified for specific chemicals and chemical groups only (may not be certified for all chemicals that are contaminants) Analyses by Certified Laboratory required as part of meeting VAP cleanup requirements Local Community Identify potential cleanup sites Inclusion important for success of the project Potential partner to help obtain investigation and cleanup funding

20 Potential Funding Options? Grant-funded technical assistance JOBS Ohio Fund USEPA Assessment and Cleanup Grants JobsOhio Revitalization Available Funds 1. Site Improvement Loans Amount Up to 75percent of eligible costs up to a maximum of $5 million Term Up to 15 years Interest Rate fixed rate to be determined at closing, plus.25 percent loan servicing fee Security To be negotiated Payment deferral Principle and interest will be deferred during site revitalization, with repayment beginning upon occupancy or after five years, whichever occurs first Principal reduction -Outstanding loan principle may be reduced annually on a negotiated basis based on performance. 2. Site Improvement Gap Grants Eligibility To be coupled with Site Improvement Loans and provided to fill funding gaps where remediation costs exceed the anticipated net gain in land and improvement value, making successful redevelopment unfeasible. Funds are available only to projects where a confirmed end user will create jobs within a negotiated period not to exceed five years. Amount Up to $1 million 3. Asbestos and Lead Paint Abatement Grants JobsOhio may provide grants for asbestos and lead abatement to projects where an end user has committed to immediate rehabilitation or demolition of structures impacted by asbestos for reuse as industrial, commercial or mixed use, or other economic development initiative. A commitment for reuse can be evidenced by agreements such as options, leases or purchase agreements, along with detailed development and business plans and project financing. Eligible Costs Demolition Disposal of universal waste Abatement of asbestos Site preparation Lead based paint abatement only if coupled with asbestos abatement Amount Up to $500,000

21 Private VAP Use VAP standards, but do not submit NFA for CNS Environmental Liabilities Associated with Business Transactions General Concerns of the Purchaser and Seller The Purchaser The Seller

22 Tools To Avoid CERCLA and Ohio Liability for Contaminated Facilities Environmental Assessments Purpose Types Transaction Screen Process Phase I Phase II Consultants Checklist for Selection of an Environmental Consultant Recognizing the Need minimizing liability good commercial or customary practice quantifying business risks for environmental issues

23 Retaining Consultants Checklist for Selection of an Environmental Consultant The Selection Process asking the right questions qualifications/credentials/certifications references examples of work product who should retain: attorney -vs- client acceptance by recipient the cost Terms and Conditions for Consultants Checklist for Selection of an Environmental Consultant The Written Agreement scope of work Site Assessment: Phase I or II specific evaluation parameters the Standard ASTM E Confidentiality Indemnification

24 Terms and Conditions for Consultants (Con t) Checklist for Selection of an Environmental Consultant The Written Agreement - Continued insurance use of subcontractors/responsibility identification of information resources use of database providers preparation of the Report English Please? Checklist for Selection of an Environmental Consultant Reading the Report format/clear road map executive summary completeness/attention to each evaluation parameter for scope of work/standard sufficiency of data/explanations final conclusions: what does it really say

25 English, Please? (Con t) Checklist for Selection of an Environmental Consultant Reading the Report - Continued reservations of rights by consultant use of the Report /recognizing the limits evaluation of risks when to do more disclosures Compliance Audits When used Continuing tool When legal protection against liability

26 Environmental Insurance When its useful When its not useful Today s market Options Legal liability Cost cap (not currently available) 3d party claims only Exclusions most important is known conditions Today s market Deal Structure Why it Matters Real estate only Assets only Stock only Merger

27 Key Contract Provisions Pre-Contract or Post Signing Due diligence? Access Indemnification Data sharing Definitions Representations and warranties Covenants Indemnification Schedules