Mergers and Acquisitions Due Diligence Trends
In the realm of Mergers and Acquisitions (M&A), environmental due diligence is a pivotal aspect, essential for evaluating potential risks, liabilities, and costs, and ensuring adherence to environmental laws and regulations. This diligence profoundly affects transaction valuation, structuring, and negotiation.
The key to this process is verifying compliance with environmental regulations at target facilities, which encompass local, regional, and national laws and standards related to pollution, waste management, resource use, and other environmental aspects.
Conducting All-Appropriate Inquiries (AAI) is vital for assessing a property’s environmental conditions and potential contamination liabilities. Under CERCLA 101(35)(B), following established commercial and customary standards, these inquiries are crucial for certain CERCLA liability defenses, including bona fide prospective purchaser, innocent landowner, and contiguous property owner defenses. These defenses require the landowner to demonstrate AAI completion before property acquisition.
Environmental regulations like CERCLA can extend liability beyond the actual facility or business owner, potentially impacting lenders in certain scenarios. Entities acquiring contaminated property are liable for remediation, regardless of their role in the contamination. While they can seek indemnity or contribution from former owners, authorities can still hold the current owner accountable.
Evaluating potential liabilities from waste generation and disposal, both current and historical, is critical. This includes considering future regulatory actions, adhering to continuing obligations related to ongoing cleanup or monitoring, cleanup costs, and potential legal conflicts or penalties.
In share purchases, buyers typically inherit all environmental liabilities of the corporate target. Conversely, asset purchases may allow acquiring assets without inheriting certain liabilities, especially those linked to historical issues.
Environmental liabilities can significantly affect deal valuation. Buyers may negotiate lower prices or specific indemnities for significant environmental risks, while strong compliance records can enhance value.
Mergers and Acquisitions in Industry and Manufacturing
Due to higher inherent environmental risks, industries like manufacturing, chemicals, and energy necessitate more thorough environmental assessments. Furthermore, even though operational aspects of these facilities may not represent likely sources of contamination, they may still present the threat of future release if they are not well managed and have business risks related to regulatory noncompliance. Features such as air permitting and wastewater management are important to consider, as large fines or even temporary injunctions against one or more processes can result in a significant financial burden.
Environmental insurance products can manage risks identified during due diligence, providing a safety net against unexpected liabilities.
In bankruptcy transactions, unique environmental issues arise. Claims like ongoing noncompliance and remediation obligations often persist post-transaction.
A crucial aspect often overlooked is the requirement of regulatory approvals for some M&A transactions, which the environmental records of the companies involved can significantly influence. In today’s environmentally conscious world, the public perception of a company’s environmental stewardship, especially in environmentally sensitive industries, can greatly impact the success or failure of a merger or acquisition. This public image aspect necessitates a careful and proactive approach to environmental due diligence, aligning with regulatory standards and societal expectations.
A Sustainable Approach to Mergers and Acquisitions
As environmental justice, climate change, and sustainability become more central, the M&A approach is evolving. Companies are now scrutinized for their alignment with sustainable practices, including their carbon emissions, energy efficiency, and overall impact on climate. This scrutiny isn’t limited to their current practices but also encompasses future potential, especially for companies possessing cutting-edge green technologies or sustainable methods, as these can offer significant competitive advantages in the market. Furthermore, a critical consideration is the impact of a company’s operations on local communities, particularly in areas identified as disadvantaged and more prone to environmental hazards. The U.S. Environmental Protection Agency is placing greater emphasis on monitoring these areas. Therefore, companies involved in M&A must be aware of the importance of community engagement and building positive relationships with residents and officials, especially in these vulnerable areas.
In summary, environmental considerations in M&A go well beyond mitigating risks; they increasingly focus on leveraging opportunities for sustainable growth and aligning with evolving global environmental trends. These considerations necessitate a broader, more comprehensive approach to environmental due diligence, incorporating regulatory, public perception, and strategic planning for post-acquisition integration and sustainable growth.
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In this time of pandemics and stay-at-home orders across the country, much thought has been given to the concept of doing more work remotely. As employees have been required to work from home, the popularity of various business collaboration platforms, such as Zoom, has exploded. As businesses have come to rely on these platforms to continue their essential activities, the idea of utilizing these platforms to conduct remote PSM/RMP activities such as process hazard analyses (PHAs) for our ammonia refrigeration and other highly hazardous chemical processes has grown to a fever pitch.
There are many arguments in favor of a remote PHA. First, it allows us to safely maintain social distancing as required with the current state of emergency due to COVID-19. Second, it allows for more team members to participate while avoiding travel time and costs.
While the first argument supporting remote PHAs cannot be disputed, the reduction in travel costs is often offset by the added time that is required to conduct a thorough PHA over business collaboration video conferencing. There are often technical glitches with the computers or video conferencing platforms that need to be dealt with throughout the PHA. Correcting these issues consumes valuable time, time that is still needed for the discussion of the hazards of the process.
Another time factor that comes into play when conducting a PHA through video conferencing is “Zoom Fatigue.” “Zoom Fatigue” is real. It is challenging to remain focused and engaged in a video conference for more than about six hours at a time. This requires more days to complete the PHA properly. An argument against this six-hour limit is to simply “take more breaks.” While taking more breaks is certainly an option, meeting over a remote platform makes it difficult, if not impossible, to corral team members and get them back on task. In addition to trying to corral team members from breaks, an online platform makes the team members extremely susceptible to the desire to multi-task. More often than not, attendees are involved in checking and responding to emails, answering phone calls, or even addressing in-person issues when on a video/conference call, instead of giving full attention to the task at hand. This makes team engagement difficult and dramatically reduces the effectiveness, and hence the quality, of the PHA.
Team member engagement is driven by the facilitator. Most facilitators rely on eye contact, body movement, and voice inflection to help keep the team members engaged in the discussion. This is difficult at best over a video link. It is downright impossible if any of the team members do not have a video connection and only participate in an audio connection.
Sharing of documents and information is more time consuming using a remote platform. First, any documents that are not in an electronic format must be scanned in order for the team to look at them. Often a scanner is not available or cannot handle the physical size of the document. This leads to attempts to share the document using cell phone cameras. This method is time-consuming at best and often unreadable at worst. Second, it is often impossible due to screen size and resolution to look at multiple documents simultaneously over a video link. When the team is gathered around a conference room table, they can very quickly scan multiple large drawings and collaborate on interpreting them.
It is necessary for the team members to understand the basics of the methodology being used to conduct the PHA. This is why at least one team member must be knowledgeable in the methodology, so that they may guide the team. This guidance is more difficult for the facilitator to provide, given the reduced engagement experienced over a video link. It is often difficult for the facilitator to identify a look of confusion, frustration, or boredom over a video link. It is much easier to do so when sitting across from each other at a conference table.
Finally, perhaps the biggest pitfall associated with a remote PHA is the loss of the ability to take “field trips.” Often, when discussing a hazard or failure scenario, there is ambiguity in the documentation, and memories are vague. When conducting a PHA on site, the team can get up from the table and walk out and look at the area in question. With a remote PHA, this capability is lost. If someone from the site is participating via the remote video link, they could go out and take photos of the area in question and come back and share them with the team. This is not ideal since often pictures don’t tell the whole story, and things may be missed if people only see the picture.
PHAs conducted remotely over a video conferencing link are a viable option for certain types of PHAs. For instance, when conducting a limited scope PHA for a change being conducted under Management of Change, a remote PHA may be a good option. This would depend upon the quality of the available documents supporting the proposed change. When a PHA is being revalidated, and the previous PHA had not been cited for deficiencies in its conduct, a remote PHA may be a good option, providing that a portion of the team members who are knowledgeable of the process being analyzed took part in the previous PHA.
There are many instances where a facility should think long and hard about the potential pitfalls of conducting a process hazard analysis over a remote video conferencing link. If the facility has no existing PHA, if the previous PHA methodology and level of thoroughness were cited by regulators, or if the proposed PHA team consists of few members who took part in the previous PHA, then an on-site PHA should be strongly considered.
About the Author: Bill Lape is a Project Director for SCS’s Risk Management Group in our SCS Tracer Environmental Division. His expertise is in the development and deployment of standardized Risk Management and Process Safety Management (PSM) Programs, including process safety program implementation and PSM support to manufacturing facilities that utilize ammonia as a refrigerant. Prior to joining SCS, he served as Director of EHS Programs and Compliance for Dean Foods where he directed a team of professionals who provided PSM/RMP support, as well as support for stormwater, wastewater, and air permitting at the company’s facilities.
SCS Engineers presents a behind-the-scenes look at the special people who make us thrive and the roles they play within the organization.
Gene Dumas joined SCS Engineers in 2015 as a Project Manager for the Risk Management
group with a thirty-year background in the ammonia refrigeration business. When asked what attracted Gene to SCS, he said “What SCS Tracer did is what I’ve always wanted to do. SCS Tracer has the passion for making the ammonia industry safer. SCS goes out of the way for customer service. Ammonia refrigeration is a very dangerous industry and what separates SCS from other companies is the commitment to safety.” For years, Gene has known Lee Pyle, Vice President and Project Director for SCS Engineers, within the ammonia refrigeration field and when he met her team at SCS, “I was blown away with their intelligence and passion. They are super smart and a good group. Lee put together a hell of a team.” Considering all those factors, it was an easy decision to join SCS Engineers.
Outside of SCS, Gene has been a member of the Refrigerating Engineers & Technicians Association (RETA) since 2004. RETA is a refrigeration organization with a mission statement to enhance the professional development of refrigerating engineers and technicians. Gene states “it’s basically the education sector of industrial ammonia refrigeration. We train, develop and certify the people who are actually working in the facilities operating systems.”
Eleven years after becoming a member, Gene was sworn in as a national president on October 1st, 2015 and was president for the 2016 year. Presently, he is a chairman for RETA and on his last year on the RETA National Board of Directors.
At SCS, Gene considers one of his greatest achievements is mentoring the newer generation to understand their industry better. “I think my mission in life is to mentor. Mentoring the younger people that are coming in, putting them under my wing, it’s very rewarding, intrinsically rewarding.” Gene comments, “I want to pass my knowledge to the next generation because we’re losing our skilled craftsman. It’s very critical that we train. A trained operator is #1: safe and we need more of them.”
For current and future SCS employees, Gene offers this piece of advice: “I came here because I wanted new challenges and wanted something new every day. The minute you 
quit growing, you’re dying. The minute you stand still, the world will pass by you. You better be moving forward because the moment you stop, you become a hazard to yourself and people around you and complacency is your worst enemy. “
SCS Engineers is currently looking for a Senior Professional to add to our Risk Management Ammonia Refrigeration team. For more details visit the SCS Engineers Careers Page or click here to apply directly.
CHARLESTON, SC –SCS Engineers has hired Dale Haase to provide full Environmental Health and Safety solutions to SCS’s growing industrial client base. He is located in SCS’s Charleston, S.C., office.
As an SCS Project Manager, Mr. Haase will prepare and submit air permit applications; waste water applications: NPDES, stormwater and SPCC plans; hazardous waste generator compliance plans; and all types of environmental compliance reporting for clients. He is particularly experienced at helping clients build sustainable health and safety cultures using training and positive behavior reinforcement with an emphasis on compliance and case management.
“Dale has prepared and managed environmental permitting and compliance documentation for industrial and manufacturing clients, while at the same time helping them navigate and realign their safety culture for outstanding outcomes,” stated Nina Marshtein, Environmental Services Practice Leader and manager of the SCS Charleston office. “Dale has a results-oriented track record that SCS and our clients’ value. “
Mr. Haase is licensed in South Carolina as a Professional Engineer. He earned a Bachelor’s of Science degree in Civil Engineering in 1991 from the University of South Carolina, Columbia.
SCS Engineers provides environmental solutions to a broad spectrum of industries in South Carolina, including aerospace, oil and gas, mineral mining, chemicals and pharmaceuticals, textiles, printing and publishing, woodworking, agricultural products, automotive products and the solid waste industry. Learn more here.
