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Contaminated Property Transactions: Navigating the Deals
[November 18, 2005 - November 18, 2005]
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DAY ONE: October 17, 2005
7:30 - 8:45 Registration and Continental Breakfast
8:45 - 9:00 Conference Overview and Objectives
Dean Jeffery Telego, Conference Chairman and President, Risk Management Technologies, Inc.
9:00 - 9:30 The Big Picture on Taking Brownfield Deals to Redevelopment, Finding the Keys to Revitalization
*Evolution of the Brownfields Legislative Agenda, programs and policies
*Status report on state voluntary cleanup programs (VCP)
*Innovative brownfield financing using creative state programs such as TIF districts, targeted tax incentives/credits
*States application of brownfield programs and cleanup oversight standards
*How are states to implement O&M and enforcement under the new brownfields law?
Charles Bartsch, Director of Brownfield Studies and Senior Policy Analyst,
Northeast Midwest Institute
9:30 - 10:00 Strategic Approaches to Deal Flow and the Acquisition, Remediation and Redevelopment of Environmentally Challenged Property
*Current state of the brownfields redevelopment market
*Venture capital approaches to financing and restoring contaminated real estate
*Acquisition criteria and due diligence techniques
*Determining the highest and best use for repositioning and/or redeveloping the property
*Environmental risk and insurance management techniques and allocation of liability
Stuart Miner, Founding Partner, Brownfield Partners and Managing Director
of Market Street Investors - a brownfield investment joint venture company
10:00- 10:15 BREAK - Refreshments Courtesy of XL Insurance
A chance to network and view exhibits
10:15 - 10:45 EPA Reforms Influencing Brownfields Transactions and Redevelopment
*Public/Private partnerships–EPA brownfield grants leveraging private investments
*Reworking of the Revitalization Action Plan
*EPA Superfund and RCRA guidance shaping redevelopment
*Measuring the effectiveness of EPA’s national initiatives
*Addressing long-term stewardship for brownfield sites
Linda Garczynski, Director, Office of Brownfield Cleanup and Redevelopment, OSWER, U.S. EPA
10:45 - 12:00 Panel Discussion On Superfund, RCRA and Brownfield Reforms and Deal Flow Implications Post Aviall and Kelo Rulings
*Impact on contaminated real estate and corporate transactions from the U.S. Supreme Court decision (Cooper Industries, Inc. v. Aviall Services, Inc.) on voluntary site cleanups and state VCP programs
*Options possible for responsible parties to pursue recovery of response costs in wake of Aviall decision
*Deal flow post-Aviall ruling, determining an implied right of contribution and effect on due diligence
*Industry issues on liability releases, reopeners, EPA/State/MOAs and mothballed sites
*CERCLA/RCRA completions, parcelization, implementing new guidance and challenges
*Managing post-construction completion activities, financial assurance and stewardship of ICs
*Retrospective on EPA’s enforcement initiatives “Return to Use,” One Cleanup Program, Superfund Redevelopment Initiative
*NALGEP and the Local Brownfields Acquisition Task Force
Lawrence Schnapf, Esq. Schulte Roth & Zabel
Eric B. Rothenberg, Partner, Morgan Lewis & Bockius, LLP
Karl Bourdeau, Principal, Beveridge & Diamond, P.C.
Amy L. Edwards, Partner, Holland & Knight, LLC
Paul Connor, Esq, Executive Director, National Association of Local Government Environmental Professionals (NALGEP)/ former Director, Office of Site Remediation Enforcement, OECA,,
U.S. EPA
Lindene Patton, Sr. Vice President & Associate General Counsel, Zurich NA
12:00 - 1:30 LUNCHEON hosted by BNA Environmental Due Diligence Guide, Marsh Environmental Practice, Cherokee Investment Partners, and Conestoga-Rover & Associates
Equity Capital Investments for the Remediation and Redevelopment of Brownfields
Tom Darden, CEO, Cherokee Investment Partners, LLC or
Bret Batchelder, Managing Director of Cherokee Investment Partners, LLC
1:45 - 3:00 Panel Discussion–Next Steps in Navigating Pre- and Post-Acquisition Due Diligence and Appropriate Care
*Measuring the effect of EPA’s proposed rule for “All Appropriate Inquiries” (AAI) and revisions to ASTM E1527 on the brownfields marketplace
*Landowner liability protections require performing AAI in conformance with statutory regulatory criteria
*Performance based approach assigned to ten criteria establishes due diligence
*“Environmental Professional,” the new definition and performance criteria
*ASTM E1527 standard to be compliant with AAI
*EPA post-acquisition guidance on exercising appropriate/due care by taking reasonable steps and assuring continuing obligations
*Unresolved liability issues affecting bona fide prospective purchasers and tenants
Patricia Overmeyer, Office of Brownfield Cleanup and Redevelopment, U.S. EPA, Drafter of Regulation and Preamble
Julie Kilgore, Principal, Wasatch Environmental, Inc. and Chair of ASTM E1527 Task Force
Helen Keplinger, Attorney-Advisor, Office of Enforcement and Compliance Assurance, U.S. EPA
Dean Jeffery Telego, President, Risk Management Technologies, Inc, and Executive Co-Director, Environmental Bankers Association (Moderator)
3:00- 3:15 BREAK - Refreshments Courtesy of Weston Solutions, Inc.
A chance to network and view exhibits
3:15 - 4:30 Promoting Programs to Remediate and Develop Brownfields in Connecticut and Massachusetts
*Liability schemes, cleanup statutes and standards and property transfer acts
*Determining due diligence and the effect of “All Appropriate Inquiry” rule on similar state requirements
*Contrasting roles and responsibilities of the Environmental Professional under AAI and licencing programs in Massachusetts (LSP) and Connecticut (LEP)
*Documenting opinions, recognizing and filling data gaps through sampling and analysis
*Comparing risk-based cleanup standards and institutional and engineered controls in MA (AULs) and CT (ELURs)
Barry J. Trilling, Partner, Wiggin & Dana, LLP, (Moderator)
Elsie Patton, Director of Waste Management Programs, Connecticut Department of Environmental Protection
Janine Commerford, LSP, Assistant Commissioner, Bureau of Waste Site Cleanup, Massachusetts Department of Environmental Protection (MADEP)
David Hurley, LEP, Vice President, Director Brownfield Services, Fuss & O’Neill
4:30 - 6:00 Innovative Asset and Liability Transfer Approach for Facilitating Corporate Closure of Contaminated Property Transactions
*Awareness and applicability of environmental liability transfers
*Role and perspective of different stakeholders
*Nature and scope of environmental liability transfer transactions
*Nature of risks that can be assumed
* "Art of the Deal"- experiences and tactics for identifying opportunities, negotiation and execution
*Environmental insurance as “enabler” for brownfield redevelopments
Douglas A. Wolf, Senior Environmental Engineer, Corning Incorporated
John Dean, Vice President Land Acquisitions, Westrum Development
Peter Ceribelli, Senior Vice President, Weston Solutions, Inc.
James Vetter, Vice President, Marsh Environmental Practice (Moderator)
6:00 -7:30 RECEPTION Hosted by Zurich North America
DAY TWO: October 18, 2005
State Brownfield Cleanup and Redevelopment Programs— Moderated by Lawrence Schnapf, Esq., Schulte, Roth & Zabel
8:30 - 9:00 New Jersey DEP Brownfield Cleanup Program Financial Instruments, Vapor Intrusion Guidance
*Voluntary cleanup program and liability protections–Spill Act
*Brownfields Development Area (BOA) initiative of Office of Brownfield Reuse
* "Cleanup Stars" environmental professional program
*Draft vapor intrusion guidance effect on brownfields redevelopment
* NRD legislation and regulations to encourage brownfield redevelopment
Colleen Kokas, Brownfield Manager, Office of Brownfield Reuse, New Jersey Department of Environmental Protection
9:00 - 9:30 Implementing the New York Brownfields Cleanup Act
*Overview of New York remedial programs and Brownfield Superfund Act of 2003
*Brownfield Acts’s transition from VCP to BCP, Eligible parties and site classifications
*BCA Application process and cleanup tracks hierarchical approach to soil and ground water treatment/ remediation and liability releases
*Vapor intrusion guidance—decision matrix, reopeners and role of institutional controls
*Financial incentives for redevelopment (tax credits, etc.)
Dale A. Desnoyers, Director, Division of Environmental Remediation, New York State Department of Environmental Conservation
9:30 - 10:00 Successful Brownfields Redevelopment and Access to Capital (BRAC) Model Program
*Financing for brownfields, leveraging public and private funds
*Transfer of environmental risk and cleanup loan guarantees through environmental insurance “master policy”
*Borrower/lender contribution matched by capital fund
*Insurance backed by redevelopment access to capital fund
*Accelerating brownfield financings within the Commonwealth
*Case studies of successful deals-over 250 brownfield sites
*Initiating loans for brownfield site assessments/cleanups
Thomas Barry, Vice President and Director, Massachusetts Business Development Corporation
10:00 - 10:15 BREAK - Refreshments Courtesy of BNA-EDDG
A chance to network and view exhibits
10:15 - 11:15 From Deal Inception to Completion—How Brownfield Redevelopment Projects Get Done
*Structuring the deal, deal criteria, initial due diligence, master plan design
*Accounting for environmental issues during site characterization, demolition, remediation, site development, vertical construction
*Working with municipalities, using TIFs, and other tax incentives
*RCRA and CERCLA site remediation and redevelopment for repositioning for reuse
*Manuscripting the right insurance policy
*Case studies with successful exit strategies
Todd S. Davis, Chief Executive Officer, Hemisphere Development, LLC
Pete Pederson, Principal and CEO, Renova Partners, LLC
11:15 - 11:45 Case Study in Equity Development of a Brownfield Site by a Financial Institution
*Redevelopment of old Dynamic Metals recycling plant
*Partnerships between State community-based development corporation and national bank
*Community development banking providing construction and equity financing
*Mixed use redevelopment with residential lofts and retail condominiums
Randy A. Muller, Vice President, Bank of America
11:45- 12:15 Environmental Insurance Tools for Contaminated Property Transactions-Avoiding Common Pitfalls
*Features of environmental insurance products/market trends
*Underwriting guidelines and structuring environmental coverages for
contaminated sites
*Setting expectations and identifying stakeholders
*Case Study—Bringing closure to indemnity obligations
Marcel Ricciardelli, Senior Vice-President, Underwriting, XL Insurance
LUNCHEON Hosted by XL Insurance, Weston Solutions, Inc., and Tri-Corders Environmental, Inc.
12:15 - 1:45 Full Disclosure -- Current Standards and Practices for Estimating and Reporting Environmental Liabilities
Greg Bibler, Partner & Chair of Environmental Practice, Goodwin Procter LLP
1:45 - 2:15 Turnkey Triad for Transactions—Using the Triad Approach to Facilitate Site Characterization and Revitalization
*Triad as a systems approach to project planning, dynamic work plan strategies and real-time measurement technologies
*Performing field based site characterization using Direct Sampling Ion Trap Mass Spectrometer (DSITMS)
*Demonstrated time and cost reduction at DOD and private sites
*Case studies–DOD sites in New Jersey and Florida
E. Kent Mull, President, Tri-Corders Environmental, Inc.
2:15 - 3:45 Trials and Tribulations of Transferring for Redevelopment Closed BRAC Facilities
*Army and Navy BRAC cleanup program—history and process of base closure and realignment
*BRAC 2005 closures, preparing for reuse
*Deciding the reuse of a base, the role of the local community and local
redevelopment authority
*Measuring cost/benefit of Army Performance-Based Contracts
*Risk management techniques to facilitate early transfer of contaminated parcels to LRAs
*Challenges of development at former BRAC-UXO MEC sites
*Enforcing the performance of engineered and institutional controls
*Conservation Conveyances of surplus property
*Privatizing and outsourcing the remediation process
*Insuring UXO (concussive) risks–munitions and explosives of concern (MECs)
*Case studies involving cleanups at closed BRAC facilities
Barry Steinberg, Partner, Kutak Rock (Moderator)
Richard A. Engel, Senior Program Manager, Marstel-Day, LLC, formerly Head,Real Estate Closure
and Land Use Support Section, Navy Facilities Engineering Command Headquarters, U.S. Navy
Mark Jones, Assistant for BRAC, Department of Army for Installations, Office of Deputy Secretary of Army
Peter Ceribelli, Senior Vice President, Weston Solutions, Inc.
Lindene Patton, Senior Vice President and Associate General Counsel, Zurich North America
Robert Hallenbeck, Senior Vice President, XL Insurance
3:45 - 4:00 BREAK -Refreshments Courtesy of XL Insurance
A chance to network and view exhibits
4:00 - 4:30 Valuation of Contaminated Property and Damage to Market Value
*Sizing up stigma and valuation of contaminated property
*Measurement techniques and analytical tools for environmentally damaged properties
*Determining Highest and Best Use of contaminated property
*Detrimental conditions, assessment stages and value issues for real property damages
*Damage to market value and locational premiums
Randy Bell, MAI, Principal, Bell, Anderson & Sanders
4:30 - 5:00 Natural Resource Damage Claims—Litigation and Settlement
*Natural Resource Damage claims under Federal and state law and the role of trustees
*Future trends with Natural Resource Damage (NRD) claims
*Adjusting formulas and restoration strategies involving wet lands, wildlife, ground water or surface water, and human use injuries
Ted Tomasi, Senior Management Consultant, ENTRIX, Inc.
DAY THREE: October 19, 2005
IN FOCUS: VAPOR INTRUSION
This session will cover the legal, technical and risk management issued associated with vapor intrusion and what you need to know to effectively detect and mitigate site conditions using risk-based screening models and remedial alternatives.
8:30 - 10:00 Vapor Intrusion (VI) Roundtable Discussion
*Scope of EPA’s 2002 VI draft and revised guidelines and ITRC guidance
*State comparisons of vapor intrusion, NY, NJ, CA, PA CT, MN and others
*Technical aspects - pathway, detection, and mitigation
*Site specific modeling to screen out certain site conditions
*Risk-based screening methods for indoor chemical vapors
*Case Study –Applying remedial alternatives (enhanced in-situ bio remediation, soil vapor extraction, subsurface gas management systems, synthetic barriers)
Larry Kirsch, Partner, Goodwin Procter LLP ( Moderator)
Lawrence Schnapf, Esq., Schulte Roth & Zabel
Lisa K. Voyce, Principal Environmental Scientist, NJ Highland Council
Robert Ettinger, Senior Engineer, GeoSyntec Consultants
Henry Schuver, RCRA Corrective Office, U.S. EPA
Steve Harris, Associate & Program Manager, Conestoga-Rovers & Associates
10:00 - 10:15 BREAK - Refreshments courtesy of Conestoga-Rovers & Associates
A chance to network and view exhibits
IN FOCUS: INSTITUTIONAL CONTROLS
This session addresses the key issues associated with managing the long-term stewardship of institutional controls and their application at the Industri-plex redevelopment.
10:15 - 11:00 The Role of Institutional Controls at Brownfield Sites: Tools to Get Deals Done
*Affirmative obligations to comply with ICs under the new brownfields law
*Model legislation for a Uniform Environmental Covenants Act (UECA) by the NCCUSL
*Linking institutional controls to future land use for enforcement and risk-based cleanups
*Developing integrated ICs early in remedy selection process
*Effective use of local government and proprietary controls
*Role of a third-party administrator for IC oversight
Amy L. Edwards, Partner, Holland & Knight, LLC
William R. Breetz, Jr., Connecticut Commissioner to National Conference of Commissioners on Uniform
State Laws and Chair of Drafting Committee on UECA
11:00 - 12:30 Industri-plex Redevelopment Five Years Later: Lessons from the Field — A Multi-Stakeholder Session on Institutional Controls
Five years after winning a National Phoenix Award—EPA’s highest honor for excellence brownfields redevelopment—the Industri-plex Superfund Site, once ranked #5 on the NPL, is today home to such Fortune 100 companies as Raytheon, Dayton Hudson Corporation, Marriott, PETCO as well as the
Massachusetts Port Authority, the Massachusetts Bay Transportation Authority (MBTA) and the Massachusetts Highway Department. Nationally stigmatized by superfund and the infamous Wells G&H site, as documented in J. Harr’s best-seller, A Civil Action, Woburn, Massachusetts leveraged superfund to overcome that stigma, and Industri-plex emerged as one our nation’s leading models for superfund site redevelopment. We will explore the stakeholder perspectives, strategies and future challenges to ensuring the long-term efficacy of the institutional controls.
Stakeholder Perspective: The Third-Party Trustee
*A five-year review of site redevelopment in the context of ICs
*Role of a third-party trustee in the design & inauguration of ICs
*Orphan properties & long-term stewardship of unsalable land
*Ensuring the efficacy of ICs—a multi-stakeholder alignment process
*Managing timing and transaction costs, limiting re-openers
Cynthia Brooks, President, Greenfield Environmental Trust Group, Inc. (GETG) and
President, Resources for Responsible Site Management, Inc. (RRSM), Trustee
for the Industri- plex Superfund Site Custodial Trust, (Moderator)
Stakeholder Perspective:The Environmental Regulator and Enforcer
*Responding to divergent, competing demands of stakeholders to the ICs
*Allocation of rights & responsibilities (CERCLA, ongoing property benefits, remedy failure, etc.)
*Ability to transfer EPA interest in property to co-Grantee (MADEP)
*Ensuring the long-term efficacy of the remedy
John Beling, Office Regional Counsel, U.S. EPA, Region I
Stakeholder Perspective: The Vertical Developer
*Use of Interim Grants of Environmental Restriction & Easement
*Limiting the adverse impact of ICs on development potential
*Making the trade-off between land use restrictions and the liability protection of a PPA
*Ensuring the long-term efficacy of ICs—restricted and adjacent property values
Bryan Clancy, Vice President, National Development Corporation
Stakeholder Perspective:The Community and the Municipality
*City of Woburn, MA, a unique IC stakeholder: Landowner PRP; ongoing role in ICs
*Role of the City and community in the ICs design process (“layering”)
*Complexity of balancing public inclusion with municipality’s needs
*Potentially adverse impact of ICs on property values
Paul Medeiros, President, Woburn City Council (8th Term) and Former Member, FACE
Stakeholder Perspective:A Public Sector Landowner/End-User
*Investing in future land use flexibility (alternate covers)
*Minimizing the impact of future remedial action (OU-2) on land use
*Negotiating a series of tri-agency/tri-governmental/public private agreements
*Ensuring the long-term efficacy of ICs—minimizing long-term liability
Christopher Gordon, Director of Capital Programs, Massachusetts Port Authority
12:30- 2:00 Luncheon Hosted byRisk Management Technologies, Inc.
Determining the Exit Strategy for a PRP and Balancing the Allocation of Responsibility Between ICs and Long-Term O&M to Minimize Future Liability
Luke Mette, President, Stauffer Management Company, LLC
2:00 - 2:15 Conference Summation
2:15 - 4:00 Site Visit and Narrated Tour of the Industri-plex/ Superfund Site and Redevelopment
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