Environmental Due Diligence: How Much Diligence Is Due?

Transcription

1 Environmental Due Diligence: How Much Diligence Is Due? Dean C. Miller Davis Graham & Stubbs LLP Lisa A. Decker Holme Roberts & Owen LLP

2 Due Diligence Goals Identify and quantify environmental risks that may impact value of target company/asset Create negotiating leverage - Determine purchase price - Evaluate and calculate environmental hold back amounts

3 Due Diligence Goals Identify potentially material adverse environmental conditions that may be a deal killer Physical condition of property to be acquired Compliance history and past violations Establish defenses to potential future CERCLA liability

4 Due Diligence Goals - Facilitate planning for dealing with environmental issues once the deal closes - Gain an understanding of the target company s culture of compliance or noncompliance with environmental laws - Determine transferability of any environmental permits or other restrictions on future operations - Determine need for and scope of environmental indemnities

5 How much is enough? What is client s risk tolerance? - What indemnities will be offered/negotiated? - Do Phase I investigations recommend Phase II work? Intrusive sampling Split/duplicate samples What are requirements of lender or other party financing deal?

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7 Does Facility have an Effective EMS Program? ISO Certified? Due diligence dream Streamlines process immensely You can get what you want

8 The Due Diligence Process

9 Define Scope of the Project Is the inquiry limited to environmental compliance issues? Beware of mission creep What begins as environmental due diligence can metamorphose into an evaluation of corporate and securities issues, tax, insurance, employee benefits, etc.

10 What kind of deal is it? Asset purchase? Absent exposure to a successor-liability theory or express assumption of liability, pre-acquisition liability should stay with seller Stock purchase? Absent Bestfoods, 524 U.S. 51 (1998), liability, environmental liabilities remain with company purchased unless otherwise provided by agreement Merger? Acquiring company assumes all liability of target company

11 Will environmental reps and warranties survive closing? If not, due diligence is acquiring company s best protection No recourse after closing If yes, how long? Make sure and calendar

12 Known vs. Confidential Sale Do employees of target company know about potential sale? Confidential sale makes investigation more difficult

13 Consultants Retain by Attorney Preserve confidentiality and privileges

14 Consultants Define Scope of Attorney Work vs. Consultant Work Avoid overlap and gaps Does the consultant conduct site visits, review and evaluate adequacy of permits, etc.? This usually is most efficient

15 Consultant Qualifications Specialized oil and gas operations consultant vs. general environmental consultant Or both?

16 Document Checklist On most due diligence projects, always review the following: Air, water and waste permits Routine reporting Notices of violation or other enforcement actions

17 Document Checklist Waste manifests Agency correspondence Prior site assessment reports Internal audits or other investigations SPCC Plan SWPPP Plan Documents relating to any environmental litigation

18 Document Checklist Environmental insurance claims or notifications MSDSs UST and AST inventory Government document requests CERCLA 104(e), CWA 308, RCRA 3004, CAA 114 EPCRA notifications ( 311, 312 or 313)

19 Document Checklist Notices or correspondence from 3 rd parties Settlement agreements, access agreements or tolling agreements addressing environmental issues with agencies or private parties Complaints by surrounding property owners Title review for any environmental covenants

20 Electronic vs. Hard-copy Data Rooms With electronic data rooms, you are at the mercy of the target company s relevancy determination and indexing system (i.e., environmental documents may be under litigation or corporate documents sub-folder)

21 Electronic vs. Hard-copy Data Rooms CYA Practice TIP: Print the data-room index at close of business of the last day of the due diligence period Key documents may be loaded into the electronic data room after you finish your work (i.e., environmental indemnity agreements)

22 Access Agreements Can protect both parties Define the scope of access Can you collect soil or groundwater samples? Can you talk to regulatory agencies? Does it address regulatory reporting requirements? Time frame allowed by the access agreements

23 What If You Find Significant Violations? Confidentiality agreement or other agreement which states that seller does not want to know the results of due diligence review? Who is obligated to report violations to regulators?

24 Local and State Requirements Don t overlook Particularly at County level Denial of certiorari by Colorado Supreme court in Colorado Oil & Gas Conservation Comm n v. Board of County Comm rs of Gunnison County (No. 07SC75 (Colo.) County s regulations regarding soil and gas erosion held to not conflict with State laws regarding reclamation

25 CERCLA The Petroleum Exclusion All Appropriate Inquiries

26 CERCLA Imposes status strict joint and several liability Owner, operator, arranger, transporter If liability is contractually assumed, as opposed to status liability, liability can be avoided through appropriate contract provisions

27 Petroleum Exclusion Section 101(14) Hazardous Substances do not include: petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under [this definition], and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel

28 Scope of AAI Understand limits of AAI under CERCLA It provides narrow defenses to CERCLA liability Innocent landowner bona fide prospective purchaser contiguous property owner

29 Scope of AAI Does not cover: Wetlands Air Quality Asbestos Lead-based paint Petroleum (not by AAI, but is covered under ASTM standards) ASTM 2005 and final AAI rule some differences

30 Timing: Scope of AAI All appropriate inquiries must be conducted within one year of purchase date Certain aspects (interviews, site inspection, etc.) must be conducted within 180 days (6 months) of purchase

31 AAI under Oil Pollution Act New proposed rules (33 CFR Part 137) Similar to AAI under CERCLA Similar defenses (but CERCLA defenses are broader) Comments due September 10, Fed. Reg (June 12, 2007)

32 CLEAN AIR ACT Types of sources Common sources at oil and gas sites: natural gas-fired compressor and pumping unit engines (NOx, CO, VOCs, formaldehyde) glycol dehydration units (VOCs and HAPs) condensate and crude oil storage tanks (VOCs and HAPs) natural gas-fired oil/water separators, heatertreaters, flares and other combustion devices (NOx, CO and VOCs) amine units and other natural gas processing equipment (VOCs and HAPs) leaking valves, flanges, pumps, and related equipment (fugitive VOC emissions)

33 CLEAN AIR ACT Source Aggregation Evaluate proximity of acquisition to other sites you own Evaluate type of facility and operations at each Regulation of Criteria Pollutants Nitrogen oxides (NOx), carbon monoxide (CO), volatile organic compounds (VOCs), sulfur dioxide (SO2), lead and particulate matter (PM)

34 CLEAN AIR ACT Regulation of HAPs Benzene, toluene, ethylbenzene, xylenes (BTEX) and formaldehyde Ozone Permit Requirements Need before commence construction in many instances production and throughput considerations modifications considered? Need to consider implication to existing permits

35 CLEAN WATER ACT Regulates discharges of pollutants from point sources into navigable waters Navigable waters are defined as waters of the United States Unpermitted discharges can lead to civil or criminal enforcement actions and substantial fines and penalties

36 Section 402 Permits National Pollution Discharge Elimination System Program (NPDES) Regulates discharges of pollutants from point sources into waters of the United States

37 Section 402 Permits A point source is a discrete conveyance, such as a pipe or manmade ditch that discharges pollutants into waters of the United States Site-specific NPDES permit will have numerical effluent limitations for specific pollutants and monitoring requirements

38 Section 402 Permits Consultant or attorney should review Discharge Monitoring Reports (DMRs) and NPDES Permits

39 Stormwater Regulation Establishes requirements for stormwater discharges from Industrial and Construction activities Big enforcement priority at the moment

40 Construction Activities Permit required for construction activities that disturb one acre or more

41 Energy Policy Act of 2005 The federal Energy Policy Act of 2005, modifies the NPDES regulations to clarify that uncontaminated storm water discharged from oil and gas field activities does not require an NPDES permit

42 Be Aware of State Requirements! Colorado and Wyoming require state stormwater permits for construction of oil and gas facilities that disturb one or more acres

43 Stormwater Management Plans (SWMP) SWMP must address materials handling and spill prevention SWMP must be continually modified to reflect actual field conditions

44 Stormwater Management Plans (SWMP) Permittee must implement Best Management Practices (BMPs) to reduce or eliminate any possible waterquality impacts Silt fences, straw waddles, etc. Permittee must conduct periodic site inspections

45 Section 404 Dredge and Fill Permits Dredged and fill material (rock, dirt, etc.) is a pollutant under the CWA U.S. Army Corps of Engineers and EPA have concurrent enforcement authority Violations of CWA 404 can result in substantial civil and criminal penalties

46 Jurisdictional wetlands Wetlands are subject to 404 only if adjacent to navigable water or jurisdictional tributary Wetlands do not necessarily have standing water Hire a knowledgeable, experienced consultant to make wetlands determinations

47 CWA 404 Permits Individual permits Issued for specific project General permits Can be issued on nationwide, statewide, or regional basis Apply to classes of activities Be aware of state and local wetlands protection programs

48 Rapanos v. United States, 126 S. Ct (2006) The Supreme Court issued a fractured (4-4-1) opinion with no majority opinion

49 Scalia Test Waters of the U.S. consist only of permanent, continuously flowing or standing bodies of water

50 Kennedy Test A waterbody that is not itself navigable in fact must be demonstrated to have a significant nexus to the chemical, physical and biological integrity of some adjacent or downstream waterbody that is navigable in fact

51 Rapanos v. United States, 126 S. Ct (2006) Several post-rapanos cases and the Corps have determined that a waterbody is a water of the U.S. if it meets either the Scalia or Kennedy tests

52 Corps Rapanos Guidance The Corps issued its post-rapanos Guidance on June 5, g/cwa_guide/cwa_guide.htm

53 Spill Prevention Control and Countermeasure Program ( SPCC ) Requirements apply to facilities that maintain total aboveground oil storage capacity greater than 1,320 gallons or underground buried oil storage capacity greater than 42,000 gallons. 40 C.F.R. 112

54 SPCC Only containers of oil with a capacity of 55 gallons or greater are counted

55 SPCC Applies to facilities that, due to their location, could reasonably be expected to have a discharge oil in quantities that may be harmful into or upon the navigable waters of the United States

56 SPCC Compliance Dates On May 16, 2007, EPA extended the compliance dates in 40 C.F.R (a), (b), and (c) by which a facility must prepare or amend and implement its SPCC Plan to July 1, FR 27443, May 16, 2007

57 Resource Conservation and Recovery Act (RCRA) Cradle to grave regulatory program for hazardous waste and solid waste management

58 Solid and Hazardous Waste Under RCRA Solid Waste is any discarded material, including material released from tank storage Hazardous Waste is a solid waste that is either: A Listed Waste A Characteristic Waste

59 Characteristic Wastes Ignitable Corrosive Reactive or Toxic

60 Hazardous Waste Generators Conditionally Exempt Small Quantity Generators (CESQG) < 100 kg/mo Small Quantity Generator (SQG) 100 to 1,000 kg/mo Large Quantity Generator (LQG) >1,000 kg/mo

61 Hazardous Waste Generators It is important to determine whether target company has accurately characterized its generator status, if it has done so at all

62 The RCRA E&P Exemption a/k/a the Bentsen Amendment

63 E&P Exemption Exploration and Production waste that qualifies for the exemption is regulated as solid waste rather than hazardous waste

64 What s At Stake Much lower disposal costs for solid wastes Less regulation for managing solid waste

65 The E&P Exemption Congress exempted from hazardous waste regulation drilling fluids, produced water, and other wastes associated with the exploration, development, or production of crude oil or natural gas

66 Uniquely Associated E&P wastes are those intrinsic to and uniquely associated with oil and gas exploration, development or production operations....

67 Touchstone of E&P Determination Whether the waste in question has come from down-hole (i.e., brought to the surface during oil and gas E&P operations) or has otherwise been generated by contact with the oil and gas production stream during the removal of produced water or other contaminants from the product...

68 How do you lose the E&P Exemption? Mix E&P waste with non-exempt waste Create waste after product enters transportation Create waste after product enters manufacturing phase

69 Mixing Wastes Generally, mixing an exempt waste with a listed hazardous waste results in a mixture that is a non-exempt hazardous waste Mixing a characteristic hazardous waste with an exempt waste results in a nonexempt mixture if the mixture exhibits one of the characteristics of the original characteristically hazardous waste

70 Crude Oil Storage of crude oil in stock tanks at production facilities is considered part of the production separation process, not transportation, and is included in the exemption

71 Transportation of Crude Oil For crude oil, transportation begins at the point of custody transfer of the crude oil or, in the absence of custody transfer, after the endpoint of production separation and dehydration

72 Flare Pit Hypothetical Does waste in pit exhibit hazardous characteristic? Ignitable, corrosive, reactive, toxic? If so, is all waste in pit uniquely associated? Any waste solvents, unused products, motorpool waste, lab waste, pesticide waste, caustic or acid cleaner waste, etc?

73 Flare Pit Hypothetical Any mixing with listed hazardous waste? Any waste generated after initiation of transportation? After custody transfer or, if no custody transfer, after the endpoint of production separation and dehydration

74 Natural Gas Gas plants are considered to be part of production operations regardless of their location with respect to the wellhead

75 Natural Gas Manufacturing Operations Non-exempt manufacturing activities include operations that go beyond the removal of impurities from the raw gas and the physical separation of the gas into its component fraction

76 Natural Gas Manufacturing Operations Manufacturing activities are those that are similar to petrochemical plant operations, such as the cracking and reforming of the molecular structures of the various gas fractions and the addition of odorants or other substances

77 Natural Gas Manufacturing Operations Typical gas plant operations do not meet the definition of manufacturing because they do not go beyond the removal of impurities

78 Natural Gas Manufacturing Operations The E&P exemption for natural gas ends in the gas plant once manufacturing begins or, if no manufacturing occurs, at the point at which the natural gas leaves the gas plant for transportation to market

79 Gas Plant Hypothetical Condensate released from a gas plant at a point prior to natural gas manufacturing or transportation out of the plant is a solid waste, and should fit within the E&P exemption

80 Regulatory Inconsistency Region VIII previously has determined that the E&P exemption does not apply to natural gas condensate stored in tanks at a gas plant because the condensate is: A manufactured product being stored for sale In transportation

81 UNDERGROUND STORAGE TANKS Consideration, particularly if older facility Ensure compliance with leak detection and upgrades Petroleum Storage Tank Fund Provides reimbursement in certain circumstances after deductible paid ($10,000 leak clean up; $25,000 for third party liability) Not cure all that some sellers try to convey

82 Contact Information Lisa A. Decker Dean Miller