Transcript No Slide Title
Presentation : Rising From the Ashes: Bankruptcy and New Uses Brownfields 2011
TRC Companies, Inc.
BANKRUPTCY and ENVIRONMENTAL LIABILITIES Confidential
This document contains information proprietary to TRC and others and should not be reproduced without permission.
April 4, 2011
Conflicting Goals--
Environmental Liabilities in Bankruptcy
Intersection of Two Statutory Schemes
Opposing Goals • Bankruptcy Law – Provide Quick “Fresh Start” Free from Past Obligations - Automatic Stay of all judicial, administrative or other actions against Debtor – “breathing space” - Discharge of Claims that arose prior to the bankruptcy • Environmental Law – Require that Polluters Resolve Environmental Contamination Associated with Operations - Numerous federal, state and local statutory schemes (CERCLA, RCRA, CWA, CAA …) - Current operations/ownership, legacy sites, off-site disposal
Dynamic
Area of Law
Asarco (2009), Apex (2009), Tronox (Anadarko) (2010), Motors Liquidation (GMC) (2011)
The $10,000,000 Question Can Environmental Liabilities Be Discharged in Bankruptcy ???
In General, Bankruptcy provides for the Discharge of Claims that arose prior to confirmation of the Plan of Reorganization BUT … Not all Environmental Liabilities are Claims 1. Operational Requirements –
To the extent that a Debtor engages in operations - must comply with legal obligations (e.g., permits) – Penn Terra, 733 F.2d 267 (3d Cir. 1984)
2. Post-Bankruptcy Operation –
The ongoing responsibility to address remedial obligations “springs anew” based on post BK ownership or operation – CMC Heartland Partners , 966 F.2d, 1431 (7 th Cir. 1992)
3.
Police Power -
The police power of a govm’t unit is exempt where activities present a threat to public health, safety or welfare – W.R. Grace, 384 B.R. 678 (Bankr. D. Del. 2008)
Current State of Law
Obligations to Pay $$ - Likely Dischargeable
RCRA vs. CERCLA liabilities, Apex Oil , 579 F.3d 734 (7 th Cir. 2009)
Legacy Liabilities
Better Chance at Discharge • Contingent Claims Dischargeable – PRP Groups Beware
Most Environmental Remedial Liabilities Must Be Addressed
Owner of contaminated property acquired in bankruptcy is responsible for environmental issues existing even at the outset of the acquirer’s ownership, General Motors Corp., 407 B.R. 463, 508 (Bankr. S.D.N.Y. 2009) In re
Plan of Reorganization – Saving Language
“Nothing in this Order or the Asset Purchase Agreement releases, nullifies, precludes, or enjoins the enforcement of any liability to a governmental unit under police or regulatory statutes or regulations that any entity would be subject to as the owner or operator of property after the date of entry of this Order.”
Resolution of Environmental Liabilities
• • •
Pre-Packaged BK Plans Environmental Remediation Trusts 363 Sales
OPTIONS
Environmental Liability Resolution
Goals:
Time Efficiency Preserve Asset Values Maintain Public Confidence in Business Satisfy Creditors and Regulators with Jurisdiction
1. Pre-Packaged/Pre-Negotiated Plans of Reorganization
Minimizes Time in Chapter 11 Allows for Quick Sale/Reorganization of Assets Plan of Reorganization – Pre-approved with Creditors Plan or Reorganization – Pre-negotiated but not Yet Approved
2. 363 Asset Sales
Debtor Sells Assets Outside Plan of Reorganization • (1) applicable non-bankruptcy law permits sale of such property free and clear of such interest; (2) such entity consents; (3) such interest is a lien, and the price at which such property is to be sold is greater than the aggregate value of all liens on such property; (4) such interest is in bona fide dispute; or (5) such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest Faster, Simpler Sale
3. Trusts
Establish Trust(s) to Fund/Resolve Environmental Liabilities
A Partnership
LEGAL Environmental and Bankruptcy Define Environmental Liabilities to be Resolved BUSINESS Clearly Understand Business Goals to Ensure Appropriate Strategy CLIENT-SPECIFIC BANKRUPTCY STRATEGY Client Issues to Keep in Mind
• Regulatory Normalization/Satisfaction • Capital – DIP Financing Needed?
• Bankruptcy Stakeholder– Goals
TECHNICAL Strategy to Define and Resolve Environmental Liabilities
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• • •
A Tool for Resolution of Environmental Conditions Fix Cleanup Costs Satisfy Regulators, Creditor Committees, Bankruptcy Courts, Trustees Flexibility to “Time” the Transaction for Optimal Liability Protection
LIABILITY TRANSFER
Define: Liability Transfer
A Guaranteed, Fixed-Price Contract Transferring to Contractor Liability for the Remediation of Pre-Existing Pollution Conditions
Satisfy Regulatory Obligations • Achieve Regulatory “No Further Action” Provides Cost Definition • Creditor Committees, Trustees, Bankruptcy Courts
Broad Protection of Stakeholders thru Contractor’s Indemnity
Debtor-in-Possession Lenders Buyers/Developers Creditors (as necessary) Others
Liability Transfer
Created in Fast-Paced M&A Market of 1990s
Resolve Environmental Liabilities and Close Transactions in “Real Time”
Serves M&A’s, Real Estate/Brownfield Transactions, Bankruptcies, Superfund/Cost Recovery Litigation
Time-Efficient – Satisfies Private Market Time Frames Effective – Resolves Existing Environmental Liabilities Recognized – By Key Stakeholders
Widely Applied/Accepted
Since Mid 1990s -- $BB Environmental Liabilities Resolved • Individual Remedial Obligations Range $3 - $100+M Widely Recognized By: • • Regulators Capital Markets
Transaction Goals
Debtor/Seller
“Boxes In” Remedial Obligations Better Positions Assets if Selling Defines Cost of Liability (e.g., for a B/K Trust)
Buyer/Developers
Resolves Remedial Liability for Assets Purchased
Both
Fixes Costs for Remedial Liability of Assets Speeds Transaction Process
Liability Transfer Approach
Two Contracts - Transfer Liability and Responsibility for Cleanup at a Guaranteed Fixed Price.
Contractual Legal/Regulatory
Guarantee Performance and Securitize TRC Indemnity.
Financial Hedges: Insurance, Trust, Aligned Contracts, Equipment and Salvage Value, Real Estate Development, Beneficial Reuse
Flexible Solutions, Custom Designed for Each Customer Situation. Operational and Non-Operational Sites.
Real Estate – Owned Contaminated Property
Retention
Reorganized Debtor Must Comply With Environmental Laws Liability Transfer Benefits • • • • Definition of Cost to Resolve Clean-up Obligations Resolution of Clean-up Liabilities with Discounted $$ Avoid Long-Term, Undefined Costs for Management of Clean-up Satisfy Lenders, Regulators, Creditors
Sale
Purchasers Must Comply with Environmental Laws Liability Transfer Benefits • • • Reduce/Eliminate Environmental Stigma of Assets Debtor Sells “Near Green” Assets – Higher value Buyer Purchases Assets with Resolution for Pre-Existing Clean-up Liabilities
Trusts
Liability Transfer Benefits • • Objectively Define Clean-up Costs Provide Trustee Definition
Abandonment
Formerly Owned/Operated Sites Liability Resolution?
Debtor -- Unclear Whether and to What Extent Debtor Must Address • Contingent Liabilities Generally Disallowed • If Debtor Retains Any Obligations Liability Transfer Benefits • Definition of Cost to Resolve Clean-up Obligations Other PRPs – Contribution Claims from Debtor?
• Overcome Contingency Problem with Execution of Liability Transfer Fixes Cost of Clean-up PRPs Have a Claim • If Execute Post-Filing but Pre-Plan Approval Possible Vehicle to “time” Settlement to Gain Administrative Priority
Multi-Site Portfolio – Simple Liability Transfer
Four Properties: Power Plant, Oil Terminal, Former Fueling Area, High-Rise Office Building Buyer Wants the Sites without the Legacy Environmental Liabilities Contractor Assumed Liability for Site Remediation and Schedule for Fixed Price Scope Included:
Decommissioning/Demolition Remediation Community Relations
POINT: An Up-Front Contractual Tool To Resolve Remedial Liabilities
Single Site – Seller Transferring Remedial Liabilities and Title
Site Formerly Operated as a Machine Manufacturing Facility Soil and Ground Water Contaminated with Solvents DIP Filed for Protection Under Chapter 11 (Ultimately Chapter 7) Purchaser Required to Resolve Environmental Liabilities at Site as Part of the Bankruptcy Process Site In The Midst Of A Residential Neighborhood Luxury Townhomes Proposed Following Remediation
Bankruptcy Reorganization / Liquidation Solution
Negotiate an Administrative Consent Order (ACO) with Regulators Prior to Closing for the Performance to NFA Contractor Executes – Transferring Liability Contractor Takes responsibility for Cleanup (Existing Facilities Demolition, Remediation of Soil and Groundwater Pollution) Both DIP and Private Equity Buyer Protected by Liability Transfer Title Transferred to Buyer
Define/Quantify the Environmental Issues
• • Strategic Component of Reorganization Complete
DUE DILIGENCE
Due Diligence
Critical Component of Reorganization Process
Must Be Strategic – Coordinate with Legal/Business • Identify Traditional Sources of Liability - Ownership/Operator Liabilities - Liabilities Taken by Contract - Contingent Legacy Liabilities • Former Ownership/Operator Off-Site Waste Disposal - Operational Obligations KEY: Distinguish Liabilities to be Resolved Define and Quantify (Where Possible) • • Environmental Liabilities Available Insurance Assets
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