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CONTAMINATED PROPERTY TRANSACTIONS: Promoting Sustainable Deals and Redevelopments
[November 7, 2007 - November 9, 2007]
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DAY ONE November 7, 2007
7:30 - 8:15 Registration and Continental Breakfast
8:15 - 8:30 Conference Overview and Objectives
Dean Jeffery Telego, Conference Chairman & President, Risk Management Technologies, Inc.
8:30 - 9:00 Keynote Address: Sustainable Design and Reuse of Corporate Brownfield Properties
D. Evan van Hook, Corporate Vice President, Health, Safety, Environment & Remediation,
Honeywell Corporation
9:00 - 9:30 Public/Private Financing Tools: Partnerships to Promote Contaminated Property Transactions and Redevelopments
*Evolution and update on the Brownfield's Legislative Agenda
*Expanded federal and state Brownfield Tax Incentives
*Creative state programs such as TIF districts, targeted tax incentives/credits
*Status report on state grant and voluntary cleanup programs (VCP)
*How states are implementing O&M and enforcement policies
Charles Bartsch, Vice President, ICF International & former Director of Brownfield Studies,
Northeast Midwest Institute
9:30 - 10:15 Surviving the “Tail” of Business Real Estate Cycles
*Emerging transactional trends in a bifurcated brownfield market
*Acquisition, remediation, redevelopment and risk management of environmentally challenged properties
*Structuring the deal, acquisition criteria and due diligence
*Property evaluation, development options, site planning entitlement scheduling
*Mitigating or avoiding environmental and market risks– “The Hairy Deals”
*Accounting for environmental issues during the redevelopment
*Manuscripting broad form and fixed price remediation insurance for large and small deals
Mary Hashem, Founding Partner, Brownfield Partners and Managing Director of Market Street Investors
Lindene Patton, Senior Vice President & Associate General Counsel, Zurich, NA
10:15 - 10:30 BREAK Refreshments Courtesy of XL Insurance
A chance to network and review exhibits
10: 30 - 11:00 EPA Enforcement Priorities Influencing Brownfield Transactions and Redevelopments
*Measuring the effectiveness of EPA’s national and regional enforcement initiatives
*Tracking post-construction completion activities, financial assurance and SEPs
*Good Samaritan Cleanups-- Model Consent Decree for abandoned mines
*Impact of EPA Enforcement First to ensure institutional controls at Superfund sites
*BFPP and Prospective Lessee Agreement (PLA) model agreements aimed at resolving brownfield liability fears
*ER3 Initiative’s redevelopment impacts, benefits of sustainable design/remediation
Marie Rongone, Supervisor, Hazardous Waste Branch, Office of Regional Counsel, US EPA Region IX
11:00 - 12:00 U.S. Supreme Court Decisions Affecting Business and Real Estate Transactions
*Post-Aviall and Supreme Court case law impact on contaminated real estate and corporate transactions and negotiating strategies for contaminated site cleanups
*Options for potential responsible parties to recover costs and preserve defenses in the wake of the Supreme Court decisions
*Lower court opinions interpreting Aviall pre- and post- Supreme Court Atlantic Research decision
*Will Availl be able to finally recover some of its cleanup costs under §107(a)?
*How are these lower court decisions affecting site cleanups and state VCP programs?
*Deal flow and determining an implied right of contribution and effect on due diligence
*Supreme Court decisions affecting due diligence in the era of climate change
Richard O. Faulk, Partner, Gardere Wynne Sewell, LLP
Karl Bourdeau, Principal, Beveridge & Diamond, P.C.
Lawrence Schnapf, Esq., Schulte Roth & Zabel
LUNCHEON Hosted by Conestoga-Rovers & Associates, Zurich North America, BNA Environmental Due Diligence Guide, and EDR, Inc.
12:00 - 1:30 The State of the Pollution Insurance Marketplace
Bob Hallenbeck, Senior Vice President, XL Insurance
1:30 - 3:00 Panel Discussion–Myths and Realities of Using All Appropriate Inquiries (AAI) Standard in Business and Real Estate Transactions
*Measuring the effect of the EPA regulation on marketplace/brownfield transactions
*How is the AAI standard affecting refinancing, redevelopments merger and acquisition transactions
*How are AAI and ASTM E 1527-05 affecting EP and ESA costs and market trends?
*Framework/integration of ASTM Phase II & Continuing Obligation standards
*Return of “Self-Directed” or “At-Risk” cleanups
*How will post-acquisition due diligence--exercising appropriate/due care, maintaining continuing obligations--affect deals?
*Tackling the unresolved potential liability issues affecting BFPPs & tenants
Julie Kilgore, Principal, Wasatch Environmental, Inc & Chair of ASTM 1527 Task Force
Lawrence Schnapf, Esq. Schulte, Roth & Zabel
Derek Ezovski, Managing Director, Property Due Diligence Group, EDR; Inc.
Alan Feldbaum, Director, M&A Advisory Services, Environmental Resources Management
Amy Edwards, Partner, Holland & Knight LLP
Dean Jeffery Telego, President, Risk Management Technologies, Inc & Executive Co-Director,
Environmental Bankers Association (Moderator)
3:00 - 3:15 BREAK Refreshments Courtesy of Holland & Knight LLP A chance to network and review exhibits
3:15 - 4:30 Alternative Due Diligence and Risk Management Standards for Corporate Acquisitions
*Resolving environmental concerns and negotiating strategies for contaminated sites
*How much due diligence is enough selecting the most appropriate due diligence scope/standard (i.e.; DATA) for M&A deals
*Balancing pragmatic business objectives against environmental issues
*Using on-line environmental information and electronic report platforms
*Satisfying environmental disclosure due diligence obligations, reporting environmental liabilities and GHG emissions Sarbanes-Oxley, FASB rules, carbon disclosure reports
*Due diligence investigations, portfolio analysis for sale lease backs
*Exit strategies for mitigating comeback risks
David Mueller, Senior Managing Attorney, CNH America, LLC
Mary Schulz, Vice-President, Environmental Risk, GE Capital Solutions
Walter Lohmann, Jr., Partner, Kirkland & Ellis
Abbi Cohen, Partner, Dechert LLP
Amy Edwards, Partner, Holland & Knight LLP (moderator)
4:30 - 5:45 Removing the Barriers to Corporate Brownfield Site Redevelopments
*Defining the barriers to corporate brownfield redevelopment
*Airing out the mothballed industrial properties and legacy risk issues
*Employing a perpetual liability trust fund for corporate brownfield properties
*The Recovered Property Protection and Assurance Trust (R-PAT)
*Addressing long-term stewardship issues at hazardous waste sites
*Federally administered financial assurance fund for future cleanup costs
Dwight A. Bedsole, Director of Corporate Remediation Group, DuPont
Elliott P. Laws, Counsel, Pillsbury Winthrop, Shaw, Pittman, LLP
Karl Bourdeau, Principal Partner, Beveridge & Diamond, PC
5:45 - 7:15 RECEPTION Hosted by XL Insurance and Holland & Knight LLP
DAY TWO November 8, 2007
8:30 - 9:45 Brownfield Reforms- New Proposals, Metrics, and Challenges to Revitalizing Site Cleanups
*Implementing California’s Land Reuse and Revitalization Act-AB389
*Proposals for tiered system for smaller sites, reopeners fund to protect against comebacks
*Privatized approach for low risk sites; explore a Super Project Manager program
*Sustainable design and remediation approaches for risk-based cleanups
*Public/private partnerships for financing brownfields
*Risk management issues for residential development affected by vapor intrusion
*Large urban infill projects developers perspective
*New approaches for the employment of land use controls
Maureen Gorsen, Director, Cal EPA, Department of Toxic Substances Control
Dorothy Rice, Executive Director, Cal EPA, State Water Resources Control Board
Richard Opper, Partner, Opper & Varco, LLP
Mary Hashem, Partner, Brownfield Partners
Jennifer Hernandez, Partner, Holland & Knight LLC (Moderator)
9:45 - 10:15 Lender Perspective on Brownfield Transactions
*Bracketing the risk, performing complete due diligence
*Negotiating and enforcing agreements/indemnities
*Debt/bridge and mezzanine financings for brownfield acquisitions, remediation construction, pre-development
Craig Carbrey, President & CEO, Continental Environmental Redevelopment Financial, LLC (CERF )
10:15 - 10:30 BREAK Refreshments Courtesy of Cetco Liquid Boot Co. A chance to network and review exhibits
10:30 - 11:15 Corporate Perspective on a Complex Contaminated Property Deal
*Challenges to divesting legacy non-performing industrial property
*Creating value and repositioning sites for disposition and redevelopment
*Large brownfield site due diligence, screening process, site access agreements
*New developments in deal structure, P&S Agreements, and post-acquisition obligations
*Rules of the road: bringing successful closure to contaminated property deals
*Integrating remediation and development schedules, monetizing environmental assets
*Using risk-based standards to facilitate cleanups and restoring land for sustainable reuse
*New trends in risk management and sustainable development for large urban infill and mixed use developments using a brownfield and traditional developers
Kathleen McFadden, Senior Attorney, United Technologies Corporation
Beth Barton, Partner, Day Pitney, LLP
Mary Hashem, Principal/Founding Partner, Brownfield Partners LLC
11:15 - 11:45 Environmental Liability Acquisition and Redevelopment of Corporate Real Property– Case Studies
*Holistic approach to evaluating property condition, transaction structure and liability issues
*Integrating acquisition, remediation, redevelopment and sale leaseback on acquisitions
*Drafting underlying remediation contracts and maximizing balance sheet tax benefits
*Case studies on Caterpillar Corporation, BAE Systems and General Motors Corp. facilities
Randall Jostes, CEO and President, Environmental Liability Transfer, Inc.
11:45 - 12:15 From Deal Inception to Completion—How Brownfield Redevelopment Projects Get Done
♦ New developments in structuring the deal, deal criteria, due diligence, master plan design, life cycle of deals, manuscripting the right insurance policy
♦ Accounting for environmental issues during site characterization, demolition, remediation, site development, vertical construction
♦ Working with municipalities, using tax incentives (TIFs), and incorporating sustainable development into brownfield projects
♦ Case studies of successful repositioning of properties/exit strategies
Pete Pederson, Principal and CEO, Renova Partners, LLC
LUNCHEON: Hosted by Burns and McDonald Engineering, Environmental Liability Transfer, Inc., CERF & Cetco Liquid Boot Company
12:15 - 1:45 Emerging Issues and Future Trends in Global Disclosure Requirements for Environmental Information
Paul Watchman, Partner, LeBoeuf, Lamb, Greene & MacRae, LLP (Invited)
1:45 - 2:30 Sustainability Metrics – Materiality Assessment Affecting Corporate Financial Decisions and Accountability
♦ Accounting for and reporting environmental liabilities
♦ Role and impact of environmental disclosure under FASB rules, FIN 47, FIN 143 and SEC case law against corporations
♦ Reporting regulated data prescribed by accounting standards
♦ How are sustainability; performance and corporate governance issues affecting corporate disclosure and financial decisions?
♦ Incorporating environmental data into the investment process
C. Gregory Rogers, J.D. CPA, President, Advanced Environmental Dimensions, LLC, and Counsel to Guida, Slavich & Flores
Michael Wallace, President and CEO, Wallace Partners
Jon Walker, Managing Director, Corporate, Legal and Government Services, EDR, Inc.
2:30 - 3:15 Factoring Sustainable Design and Remediation Metrics into Site Cleanup Decisions and Reuse
♦ Incorporating sustainable design into remediation projects, process-based techniques such as bioremediation, soil washing, stabilization/solidification
♦ Incorporating sustainability concepts and indicators in remedial decision-making/activities
♦ Using sustainability assessment tools to measure environmental footprint, resource consumption and occupational risk
♦ Case studies demonstrating sustainable designs incorporating efficiency, maintainability and value through LEED designs, performance contracting, life cycle cost analysis, energy audits, etc.
Sheryl Telford, Corporate Remediation Group, DuPont
Curtis C. Stanley, Sr. Principal Consultant, Global Discipline Leader, R & D and Advocacy, Shell Global Solutions, Inc.
Mark Knaack, Business Development Manager, Burns & McDonnell Co., Inc.
3:15 - 3:30 Break Refreshments Courtesy of Environmental Liability Transfer, Inc. -A chance to network and review exhibits
3:30 - 4:00 Navigating the Corporate Landscape – Integrating Sustainability and Redevelopment with Challenges of Divesting Legacy Industrial Properties
♦ Corporate strategy and tools for dealing with legacy industrial properties
♦ Web-enabled tools that capture, integrate and exchange property data for land reuse
♦ Industry challenges to avoiding comebacks and long-term stewardship issues
♦ Refining the liability management strategy, repositioning the asset/liability
♦ Measuring the impact of FASB-FIN 47 and influence of sustainable development on performing and non performing assets
Chris Olson, Manager of Real Estate Reuse, BP North America
4:00 - 4:30 CRA’s Environmental Liability Transfer Insurance Coverage (CELTIC)
♦ Program that demonstrates the development of risk/liability management
♦ Taking project responsibility, remediating property using turn-key design/implementation, securing government sign-off, taking financial risk
♦ Case studies of exit strategies for contaminated property transactions
Fred Taylor, Associate, Conestoga-Rovers &Associates
4:30 - 5:00 Transferring Financial Risk Through Performance-Based Contracting
♦ Positive Closure ® program, deployment strategies to execute environmental and financial risk transfer backed by performance guaranty of parent company, Alliant Energy
♦ Guaranteed remedial action where there is cost certainty associated with execution of the remedial action
♦ Shared risk and guaranteed fixed-price remediation for industrial companies
Shannon Posey, Manager, Remediation Services, RMT Inc.
5:00 - 5:30 Asset Management Practices and Investment Recovery Practices
♦ Identifying and managing assets from underutilized corporate property
♦ Monetizing corporate assets from nonperforming industrial properties
♦ Total life cycle management for underutilized corporate properties
Matt Gross, Vice President, Re-Logistics, Inc.
DAY THREE November 9, 2007
SESSION IN FOCUS VAPOR INTRUSION AFFECTING CONTAMINATED PROPERTY DEALS
Whether you are an environmental professional, prospective buyer/developer, seller, site owner, lender or insurer, virtually all stakeholders in a real property transaction can be adversely affected by vapor intrusion (VI) problems. All types of sites can be affected, especially those that have petroleum or solvent related contamination. Brownfield sites are logical candidates for vapor intrusion based on their history of former commercial and industrial use affecting soils and ground water. With most state voluntary cleanup programs using riskbased cleanup standards and institutional controls, it is important that responsible parties and their consultants involved in the site investigation, cleanup and redevelopment consider vapor intrusion pathways. One of the challenges to the use of risk-based cleanups and institutional controls is vapor intrusion causing once closed sites to be reopened.
This Vapor Intrusion Session In Focus will cover the following: 1) industry standards and practices such as the ASTM standard for VI assessments for real estate transactions, 2) the tiers for screening and assessing site conditions, 3) methods and modeling VI pathways at petroleum and chlorinated solvent sites, 4) the effective use of mitigation systems/barriers, 5) case law and recent litigation and 6) lessons learned involving the buyers, sellers, consultants and insurers risk engineering and claims analysis.
8:30 - 9:00 ASTM Vapor Intrusion (VI) Standard for Real Estate Transactions
♦ A cost-effective screening method as part of the environmental site assessment process
♦ Developing a sound and defensible technical standard with questionnaire
♦ Delineating responsibilities, significance and use and assessment protocol/screening tiers
♦ Typical real estate transactions impacted by vapor intrusion
Anthony J. Buonicore, Chairman, EDR, Inc. & Chairman of ASTM Task Group E50.02.06
9:00 - 9:30 Screening, Evaluating and Restoring Sites Affected by Vapor Intrusion
♦ Accounting for the environmental factors, mitigation systems
♦ Weighing the significance of vapor intrusion pathways at petroleum hydrocarbon sites
♦ Site specific modeling to screen out certain site conditions
♦ Site restoration opportunities by better LNAPL diagnosis
♦ Tracking treatment as a form of diagnostics
♦ Application of advanced techniques at fuel terminal and operations sites using risk-based targets
Gerry D. Beckett, Principal Hydrogeologist, Acqui-ver,Inc. & Chair ASTM E50.04 Workgroup on Risk-Based LNAPL Decisions
9:30 - 10:00 Vapor Intrusion: An Environmental Challenge in Risk Engineering and Claims Analysis
♦ Current risk management approaches for VI
♦ Sampling analytical and modeling approaches to VI assessments
♦ Implementing remedial and engineering controls and institutional controls
♦ Claims management and litigation risk at VI sites
Sandra Gaurin, Senior Project Manager, TetraTech EM, Inc.
Josh Pillion, Chubb Group of Insurance Co.
10:00 - 10:15 BREAK Refreshments courtesy of Risk Management Technologies, Inc. -A chance to network and review exhibits
10:15 - 10:45 Use of a Gas Vapor Barrier to Mitigate Subsurface Vapor Intrusion
♦ Gas vapor barrier working with passive or active venting system
♦ Types of gas vapor membranes, spray-applied or sheet-applied
♦ Implementing a membrane as required or necessary to ensure indoor air meets federal, state or local standards
William V. Fritzsche, Group Manager, Cetco Liquid Boot Company
10:45 - 12:15 Cutting Edge Case Law, Case Studies and Industry Perspectives on Vapor Intrusion at Contaminated Sites
♦ Assessing and mitigating VI at petroleum and chlorinated solvent sites
♦ Industry observations about EPA and States’ VI guidance
♦ Strategies for vapor intrusion evaluation of legacy sites
♦ Legal and technical challenges involved in investigating and designing a VI mitigation system and making real time decisions for commercial transactions
♦ Landmark vapor intrusion case law and case studies featuring transactional issues involving loan servicer and inadequate due diligence
Lawrence Schnapf, Esq., Schulte Roth & Zabel
Gregory Taylor, Senior Manager, Corporate EH&S, Raytheon Company
Blayne Hartman, Ph.D., Co-Founder, H&P Mobile Geochemistry
12: 15 Conference Summation
Dean Jeffery Telego, President, Risk Management Technologies, Inc.
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