How To Manage Environmental Liabilities

Transcription

1 DATA CENTER ENVIRONMENTAL COMPLIANCE AND SUSTAINABILITY September 17, 2013

2 ART OF THE DEAL: Contracts, Audits and Due Diligence in Data Center Development and Acquisitions MICHAEL WHEELER Senior Director of Policy Initiatives Recurrent Energy GARY LUCKS Partner, EHS Performance and Assurance ERM BETH RICHARDSON Principal Beveridge & Diamond, P.C. Washington, D.C.

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4 Art of the Deal Data Centers Information is Power Environmental issues rarely derail a transaction, but unexpected environmental costs can be high and curtail business opportunities. Due diligence before and after deal Evaluate actual and potential environmental liabilities Appreciate your company s risk tolerance 4

5 Art of the Deal Data Centers Environmental Due Diligence Checklist Rarely is there a smoking gun, but disparate pieces of information paint a picture of the liabilities and potential integration problems. Past uses of site/facility Known and suspected environmental conditions Target company s compliance record and compliance culture Vendor s knowledge of environmental rules and sophistication 5

6 Art of the Deal Data Centers Allocate Risks by Deal Structure & Terms Every agreement is negotiated don t unnecessarily assume/retain environmental liabilities. Allocate liabilities to the extent possible Mitigate impact of assuming/retaining liabilities by operation of law Purchasing Assets v. Stock Leasing Assets v. Property Indemnity Triggers / Cut-Offs 6

7 Art of the Deal Data Centers Waste Services Agreements Ability to move used electronic equipment internationally for reuse or recycling is increasingly complex. Understand how used equipment is regulated in relevant jurisdictions Due diligence / auditing of services provider Allocate responsibilities to extent possible but recognize residual legal and reputational risks Consider restrictions on disposition or export to certain countries 7

8 Art of the Deal Data Centers Environmental Issues for Renewables/Alternative Energy Understand life cycle of on-site technologies and allocate responsibilities. Potential Environmental Liabilities include o EPCRA obligations o End of life / hazardous waste obligations Allocate responsibilities by Contract to extent possible, recognizing some are retained by law 8

9 ART OF THE DEAL: Contracts, Audits and Due Diligence in Data Center Development and Acquisitions GARY LUCKS Partner, EHS Performance and Assurance ERM MICHAEL WHEELER Senior Director of Policy Initiatives Recurrent Energy BETH RICHARDSON Principal Beveridge & Diamond, P.C. Washington, D.C.

10 Elizabeth M. Richardson Principal 1350 I Street, N.W. Suite 700 Washington, DC (T) (202) erichardson@bdlaw.com EDUCATION Duke University (B.S./Biology, cum laude, 1999) University of Virginia (J.D., 2002) BAR ADMISSIONS & MEMBERSHIPS Virginia District of Columbia U.S. Appellate Courts: District of Columbia Circuit, Fourth Circuit U.S. District Courts: Eastern District of Virginia, District of Columbia Virginia Supreme Court Virginia Bar Association District of Columbia Bar Association ABA (Environment, Energy, and Resources Law Section) LANGUAGES Spanish Beth Richardson focuses on product life cycle regulation. She advises clients on market access restrictions, dangerous goods transportation, and end of life management. Whether interpreting regulatory requirements or voluntary industry guidance, conducting an environmental audit, drafting commercial agreements or rulemaking comments, or representing clients in administrative proceedings, and enforcement actions, she helps clients effectively market their products and manage their regulatory obligations. Her work has covered a variety of industry sectors, including retailers, electronics manufacturers, chemical companies, consumer products companies, and trade associations. Examples of her experience include: Product Stewardship: Counseling clients on developments pertaining to, and seeking compliance with domestic and international product stewardship initiatives related to product design and recycling, including the European Union's RoHS and WEEE Directives. Dangerous Goods/Hazardous Materials Transportation: Assisting clients move their products through their life cycle, from raw materials to wastes, by interpreting requirements for transporting dangerous goods or hazardous materials under international and domestic regimes, including the UN Recommendations on Transport of Dangerous Goods, IMDG Code, ICAO Technical Instructions, and DOT hazardous materials transportation regulations. Beth helps clients respond to enforcement actions from transportation regulatory agencies. Hazardous Wastes: Advising clients on managing end of life products and other wastes, including addressing how end of life products should be managed under the RCRA and its state counterparts. She advises clients on international restrictions on shipments of recyclable materials. Beth negotiates on behalf of clients in enforcement proceedings, and she has also represented trade associations and companies in challenges to EPA rulemakings and other agency actions. Environmental Audits, Due Diligence, and Environmental Agreements: Helping clients navigate the environmental aspects of transactions, including identifying, evaluating and allocating potential environmental liabilities associated with chemical and other manufacturing facilities, due diligence on a range of products including consumer products, pesticides and other agricultural products, and electronics, drafting environmental provisions of agreements, and transferring environmental permits. Beth works with clients to conduct environmental audits for facilities and product lines and to respond to audit findings. WASHINGTON, D.C. MARYLAND NEW YORK MASSACHUSETTS NEW JERSEY TEXAS CALIFORNIA

11 Elizabeth M. Richardson Principal 1350 I Street, N.W. Suite 700 Washington, DC (T) (202) erichardson@bdlaw.com EDUCATION Duke University (B.S./Biology, cum laude, 1999) University of Virginia (J.D., 2002) BAR ADMISSIONS & MEMBERSHIPS Virginia District of Columbia U.S. Appellate Courts: District of Columbia Circuit, Fourth Circuit U.S. District Courts: Eastern District of Virginia, District of Columbia Virginia Supreme Court Virginia Bar Association District of Columbia Bar Association ABA (Environment, Energy, and Resources Law Section) LANGUAGES Spanish Beth Richardson focuses on product life cycle regulation. She advises clients on market access restrictions, dangerous goods transportation, and end of life management. Whether interpreting regulatory requirements or voluntary industry guidance, conducting an environmental audit, drafting commercial agreements or rulemaking comments, or representing clients in administrative proceedings, and enforcement actions, she helps clients effectively market their products and manage their regulatory obligations. Her work has covered a variety of industry sectors, including retailers, electronics manufacturers, chemical companies, consumer products companies, and trade associations. Examples of her experience include: Product Stewardship: Counseling clients on developments pertaining to, and seeking compliance with domestic and international product stewardship initiatives related to product design and recycling, including the European Union's RoHS and WEEE Directives. Dangerous Goods/Hazardous Materials Transportation: Assisting clients move their products through their life cycle, from raw materials to wastes, by interpreting requirements for transporting dangerous goods or hazardous materials under international and domestic regimes, including the UN Recommendations on Transport of Dangerous Goods, IMDG Code, ICAO Technical Instructions, and DOT hazardous materials transportation regulations. Beth helps clients respond to enforcement actions from transportation regulatory agencies. Hazardous Wastes: Advising clients on managing end of life products and other wastes, including addressing how end of life products should be managed under the RCRA and its state counterparts. She advises clients on international restrictions on shipments of recyclable materials. Beth negotiates on behalf of clients in enforcement proceedings, and she has also represented trade associations and companies in challenges to EPA rulemakings and other agency actions. Environmental Audits, Due Diligence, and Environmental Agreements: Helping clients navigate the environmental aspects of transactions, including identifying, evaluating and allocating potential environmental liabilities associated with chemical and other manufacturing facilities, due diligence on a range of products including consumer products, pesticides and other agricultural products, and electronics, drafting environmental provisions of agreements, and transferring environmental permits. Beth works with clients to conduct environmental audits for facilities and product lines and to respond to audit findings. WASHINGTON, D.C. MARYLAND NEW YORK MASSACHUSETTS NEW JERSEY TEXAS CALIFORNIA