Lenders can maintain CERCLA exemption by following ownership / liability tests

The EPA Lender Liability Rule does not encourage controlling borrowers but rather it supports proper loan management.

Also see: Environmental management for banks, financial institutions & other lenders

It may appear the EPA holds financial institutions responsible for the failings of others because lenders have attempted to be responsible in their dealings with developers on environmental issues. However, we must keep in mind that the EPA is responsible for defining and identifying responsible owners and operators in order to assign responsibility for environmental failures, which can have long-lasting and far-ranging effects.

Indeed, the EPA has, on occasion, ruled that lenders have been too involved in the daily operation of a company and, therefore, have been given the responsibility for clean up. Ongoing daily involvement, even if initiated more recently than the violations, confers responsibility because it also suggests some knowledge or awareness of the failures.

Lenders that have failed to conduct due diligence or which were not thorough in protecting their security interests have inherited huge environmental liabilities under CERCLA.

There are, however, important and appropriate lender activities as an owner or operator which are shielded from CERCLA (1980) liability under the secured creditor exemption. The Lender’s Exemption provides that the term “owner” or “operator” specifically does not include a person, who “without participating in the management of a . . . facility, holds indicia of ownership primarily to protect his security interest in the … facility.”

The stated purpose of the EPA Lender Liability Exemption is to define and specify the range of permissible activities a lender may conduct without exceeding the bounds of exemption.

The EPA has defined three key and identifiable elements of activities which lenders may conduct without being deemed to have exceeded the bounds of CERCLA exemption. Those elements are: “indicia of ownership”; the requirement that ownership be held “primarily to protect security interest”; and, the prohibition of secured creditors from participating in the management of a facility.

The key elements, all of which must be in place for the lender to avoid liability, are expanded for clarification:

“Indicia of ownership” is defined by the EPA rule as “evidence of interests in real or personal property.” Qualifying indicia of ownership include a mortgage, deed of trust, legal or equitable title obtained through foreclosure, a guarantee of an obligation, an assignment, lien, pledge, or other right or form of encumbrance against the property.

To avail itself of the exemption, a lender must prove it holds the indicia of ownership principally for the purpose of securing payment, or performance of a loan or other obligation.

There is a two-pronged test for identifying when a lender has crossed the lines and can be deemed to be “participating in management.” Activities of management the secured creditor is prohibited from include: a) exercised decision-making control over the borrower’s environmental compliance; or, b) assumed overall management responsibility encompassing the day-to-day decision-making of the borrower’s enterprise.

Acceptable participation

How can lenders protect their loans if they cannot exercise some control over borrowers? The EPA Lender Liability Rule does not encourage controlling borrowers but rather it supports proper loan management.

The United States Environmental Protection Agency has defined four areas where lenders can be involved in environmental inquiries and loan management without being labeled as having “participated in management” of a borrower’s company.

Acceptable loan management activities from an environmental standpoint may occur:

• Before the loan transaction takes place, or at the inception of the loan
• During the tenure of the loan
• While undertaking a financial workout with a defaulting borrower
• At foreclosure and when preparing the facility for sale or liquidation

Financial institutions serious about avoiding “unacceptable participation” rulings design and implement their own Lender Loan Management Programs to coincide with the four areas of acceptable participation defined by the EPA. The two most important focused objectives of such a program are to minimize environmental liabilities throughout the life of each loan, and to maintain the Lender’s Exemption when borrower viability appears to be at issue.

A solid Lender Loan Management Program addresses lender conduct from the onset of lending conversation, perhaps even before application, and all the way through to loan termination.

Look before leaping:
Lender Loan Management Program

There are several tools and a number of procedures for the various phases of loan management which comprise an effective Lender Loan Management Program.

At the inception of the loan transaction, a Transaction Screen Questionnaire (defined by the ASTM in protocol E1528-93) is used to determine if a Phase I Environmental Site Assessment will be necessary. It is rare that some form of in-depth evaluation is not required on commercial property. Furthermore, it is inaccurate and can be risky to view the Transaction Screen as a shortcut or substitute for a Phase 1 environmental site assessment because, performed according to ASTM protocol, there are many points where the screen leads directly to a full Phase 1 environmental site assessment.

An intermediate tool devised by Harris & Lee Environmental Sciences, LLC is a modified or abbreviated environmental site assessment report. It includes a summary computer data radius report, a brief site reconnaissance, and investigative inquiries into historical use. It is performed in conformance with ASTM protocol, and when performed by experienced senior personnel to draw comprehensive conclusions, it will indicate additional environmental conditions which warrant a Phase 1 environmental site assessment. Not only is the client assured costs will be kept to a minimum, the report can be expanded if considerations require additional detail. Though components of the modified assessment are done in compliance with ASTM standards, it does not technically meet ASTM standards because it is abbreviated. Even so, this abbreviated environmental site assessment will satisfy due diligence requirements for the first phase of the Lender’s Exemption rule. Please email for more information.

Finally, ONLY the All Appropriate Inquiries – Environmental Site Assessment, Phase 1 Investigation satisfies the requirement for one of the three landowner liability exemptions provided by the CERCLA Brownfields Amendments. It must be performed in accordance with ASTM E 1527-05. The advantage for lenders is that these landowner exemptions protect the borrower and collateral in commercial real estate loans.

Tenant assessment vs. tenant compliance

The technical term for that time when a facility undergoes a detailed audit in which all phases of environmental compliance are investigated is “multimedia environmental compliance audit.” Put simply, it means the auditor’s investigation will include all areas for which the potential of contamination exists: soil, air, and occasionally, employee safety and health. The Tenant Environmental Compliance Audit examines not only the paper trail, but chronicles the actual daily practices to minute detail. It is a comprehensive audit process which is important in that it detects noncompliance with numerous and varied regulations, many of which impose heavy fines and cleanup requirements.

A Tenant Assessment is not intended to prevent the facility from minimizing fines due to faulty practices, but rather to identify and to prevent faulty management practices which are likely to create liability by extension to the Lender. An example of the difference in tenant assessment vs. tenant environmental compliance would be incorrect completion of a hazardous waste manifest, as opposed to the outright disposal of hazardous waste without any manifest. Incorrect completion of the manifest could lead to financial fines to the facility, but disposal of the hazardous waste without a proper manifest implies an illegal disposal practice which may be viewed as a criminal offense.

The assessment requires an experienced environmental auditor with a broad philosophical outlook because the hazardous waste was generated from the property, the property owner, or the lender in some cases, could be held responsible.

New vs. existing tenant

Potential environmental risk is minimized when, prior to lease development, a visit is made to the potential tenant’s existing facility. A review of relevant processes and how they are presently handled is the best indicator of how the operation will be run once the tenant is situated on the new property. The hazardous waste materials management plan and tools are reviewed and a determination is made as to how well it is followed. Specific issues regarding future compliance can be identified for coverage in the lease agreement.

Lenders should expect to monitor ongoing compliance at tenant facilities on a regular and agreed upon basis. Such monitoring protects the long-term value of the property. The most important aspect of tenant monitoring is to identify and document potential environmental problems which will or may devalue the property, or cause the extension of liability ownership to the Lender.

Depending on circumstances, the EPA has assigned liability of previous owners and lenders to the current occupant of a property. However, because previous tenants and lenders can be assessed penalties, lenders are urged to have pre-evacuation and pre-lease termination assessments of the property. Doing so minimizes the owner and lender exposure by documenting the tenant’s departure activities. It may, on occasion, be prudent to require a tenant to develop a comprehensive closure plan, and to police the implementation of that closure plan, as well as to monitor the effectiveness of such a plan. It is helpful to stipulate and draw a prospective tenant’s attention to this lender option in the lease. The intention is that tenants who are aware they will be monitored are more likely to be well-prepared, and lease termination may be more manageable.

When Borrowers default

The EPA rule does permit a lender to take necessary steps to protect collateral. For loans threatening default or already in default, borrowers may need professional consultation, which can come at the request of the lender. Lenders may foreclose and not be considered owners for purposes of CERCLA liability. The lender may avoid liability if it undertakes to sell, release or otherwise divest itself of the property in a reasonably expeditious manner. In foreclosure, a property may be operated by a lender under the exemption so long it, as the holder, does not improperly arrange for disposal of hazardous substances at the facility or for transport and disposal at the facility.

Essentially, all EPA rules which applied to the previous tenant apply to the lender as holder in a foreclosure.

Use of expert support

The term “participating in management” as applied by EPA is broad and difficult to interpret. Expert support offering a thorough understanding of the processes and their relationship to all parties is essential to assist lenders in upholding their responsibilities without crossing the line. Technical environmental support should also include appropriate legal assistance to interpret vague language and to assist in refining procedures.

Also see:
Environmental management for banks, financial institutions & other lenders

Robert S. Harris is president and senior scientist of Harris & Lee Environmental Sciences, LLC, a Santa Rosa, California environmental consulting firm serving the western United States. He holds degrees in chemistry and biochemistry, and has 32 years experience in environmental analytical chemistry and environmental toxicology. Mr. Harris has established and operated large laboratories and has developed several ground-breaking methodologies for environmental analysis, including the standard method for analysis of polychlorinated biphenyls in water, soils and oils. His firm has saved lenders, insurance, real estate and law clients millions of dollars, including conversion of waste costing $120,000 per month to a usable fuel. He can be reached by email or phone at (707) 571-8961.

The ultimate responsibility for compliance with environmental laws and regulations rests with the property owner. Protect yourself with an environmental liability management program

While the CERCLA Brownfields Amendments  provides three specific landowner environmental liability exemptions, only those who rigorously follow the All Appropriate Inquiries Rule (AAI) prior to purchase are protected.  However, these exemptions do not protect a property owner from environmental liability for damage that occurs during his tenure as owner.

When private property is contaminated or damaged, the ultimate responsibility for compliance with environmental laws and regulations rests with the property owner.

A property may be “clean” when purchased, but the owner must ensure that current uses, by employees, tenants, or even the owner himself, do not create environmental liability that could require costly cleanups and/or reduce the value of the property.

What practical steps can a property owner take to achieve confidence that his property is environmentally safe–without taking actions that could be construed as direct involvement in a tenant’s business management?

Develop an environmental liability risk management program

Property owners who actively manage risk associated with environmental liability can help protect the value of leased and owner-occupied properties and ensure compliance with federal and state environmental regulations.

The objectives of this program should be to identify any potentially environmental damaging processes conducted on the property and help the owner or tenant mitigate such situations before problems occur.

An effective environmental liability risk management program has three parts:

• New-Tenant Assessment. Prior to lease development, evaluate the facility, review relevant processes, conduct an investigation looking for past environmental hazard violations, and identify issues for specification in the lease.
• Existing-Tenant Monitoring. To ensure ongoing compliance with lease agreements and environmental regulations, visit tenant facilities on a timely basis. The frequency of visits depends on results of the initial assessment.
• Exiting-Tenant Assessment. Prior to lease termination, visit the facility to verify the tenant’s lack of impact on the building and environs.

Owner/landlords and developers of commercial and industrial properties find such an environmental liability risk  management program an asset in protecting their investments.

Financial institutions making loans on commercial/industrial properties recognize that owners using an environmental liability management program are serious about preserving property values. In some cases, this alleviates a large concern about commercial/industrial real estate financing and can result in a better loan package with the lending institution.

Law firms charged with writing lease agreements use the environmental liability management program to obtain scientific, regulation-based guidelines for tenant property use to include in the lease.

Tenants also benefit from environmental liability management because the program monitors for practices that are technically substandard, helping them avoid the liabilities inherent to contaminating a property and/or to not reporting the release or use of a hazardous substance.

Harris & Lee Environmental Sciences, LLC offers an environmental liability risk management program designed for owners of single- and multiple-tenant commercial and/or industrial properties. We created the program to assist owners and tenants in avoiding property endangerment and its associated legal responsibilities and costs.

We have extensive experience working with and coordinating efforts among property owners, attorneys, insurance companies, and financial institutions, with the goal of protecting investments by recommending efficient, scientifically sound business practices and procedures that meet regulatory requirements and limit environmental liability for other’s acts. For details on the Harris & Lee Environmental Sciences, LLC Environmental Liability Risk Management Program please email us.

An environmental risk management plan can help safeguard your property from tenant impact.

Also see:

Dry cleaners pose worst of worst environmental risk for property owners

Create an environmental liability risk management program

Manage environmental risk by monitoring tenants’ impact on the environment

A small commercial strip center has a variety of small businesses located on the premises anchored by one moderately large retail establishment.

• One of the small tenants is a dry cleaner which began operations in the strip center shortly after it was constructed.

The dry cleaner initially used an apparatus for its cleaning equipment that was not a closed loop system although he did convert to a closed loop design three years later.

As the economy went through its various gyrations, the financial status of the dry cleaner owner also varied. Personal problems severely affected his ability to perform proper maintenance on the equipment in the business.

• Accordingly, the required maintenance on the dry cleaning apparatus was “make do” and done in an improper manner.

When the strip center owners were seeking to refinance their property, the lender required an environmental site assessment. Soil samples were collected from beneath the concrete slab underneath the dry cleaning machine.

• The soil samples indicated that the dry cleaning apparatus had been leaking Perchloroethylene (PCE) solvent.

Before any further progress could be made on the loan, more investigation was required. As the investigation progressed, it became clear that the dry cleaner had been leaking solvents for some time.

• The PCE contamination plume extended for a distance of over 300 feet from the source.

Had the property owner proactively managed environmental risk by insisting from the beginning that the dry cleaner maintain scrupulous care in the management of the equipment and solvents, this case might never have happened. If, for instance, the owner had insisted that the dry cleaning apparatus be kept inside a secondary containment (in addition to that which is supposedly intrinsic with the apparatus), then small spillage might have been eliminated.

Five key safeguards for environmental risk management:

• Be sure that tenants are using solvents and chemicals safely.

• Be sure that tenants have taken every safety precaution with their equipment so that in the event of leaks (for example) the property is not impacted.

• Be certain that the tenant complies with all local, state and federal regulations.

• Require that the tenant verify to the property owner that the above items are complete and proper.

• Consider having a qualified environmental auditor conduct brief but complete audits of the property on an occasional basis.

• Develop an environmental liability risk management program

Table 1. Key Differences between the Final All
Appropriate Inquiries Regulation Specification and the Previous
Specification Standard

CERCLA All Appropriate Inquiries compared to ASTM E 1527-05
Key Difference: Petroleum

The basic difference between CERCLA All Appropriate Inquiries and the
new ASTM E
1527-05 is the extent of the definition of hazardous substances. Under
the petroleum exclusion of CERCLA Section 9601(14), petroleum and crude
oil have been explicitly excluded from the definition of hazardous
substances. However, ASTM E 1527-05 includes petroleum products
because they are of concern in many commercial real estate transactions
and current custom and usage is to include an inquiry into the presence
of petroleum products in an environmental site assessment.

As noted above, the State of California now recognizes the Innocent Landowner Protection, the Contiguous Landowner Protection and the Bonafide Purchaser Protection. Thus, while CERCLA does not include petroleum products, that omission is picked up by the State of California.

Reprinted with permission from Sonoma Business Magazine, June 1998

“After two years of work, they collected four ounces of oil.” Regulators default to their “rule books,” but the books do not take into consideration all possible chemical phenomena.

Years ago at a Modesto winery, a pesticide called DBCP had contaminated some of the wine. The chemical was suspected of causing male infertility, among other ailments. Though only tiny amounts were thought to be present in the wine, not enough to be smelled or tasted, toxicologist Robert Harris was hired to perform a chemical analysis of the wine. His laboratory was able to detect the pesticide down to .01 parts per billion–the equivalent of one second in 3,200 years. “You can’t taste that,” says Harris, who holds a master’s degree in biochemistry, “but it’s enough, as it accumulates, to eventually have an impact on you.

It was later discovered that the DBCP had entered the wine through the winery’s water supply, which had been contaminated from the heavy pesticide spraying in the agrarian Central Valley. The poisoned wine was discarded and the problem rectified.

Testing food and wine is just one chemical feat in Harris’s bag of tricks. He is a partner in Santa Rosa’s Harris & Lee Environmental Sciences, LLC. In another case, Harris was hired by a Sonoma County winery to test for possible contamination. The winery stored its wine in large stainless steel vats with “jackets” on the outside which circulate a coolant. The winery had reason to believe that some of the coolant had leaked into the wine and hired Harris to test it. He detected the coolant in several vats, and the wine was destroyed. Harris characterizes wineries as “fairly conservative” with their manufacturing process, testing wine if there is even a slight suspicion of contamination.

Harris formerly owned a Santa Rosa-based laboratory called Multi-Tech where he tested foods and wines for toxic residues. While oenologists at wineries closely monitor wine throughout the production process, toxicologists like Harris are called when a foreign substance is suspected. Harris has worked for most of the major wineries in Sonoma and Napa counties.

Makers of food and drink face tremendous legal exposure if their products cause food poisoning, says Harris. Despite the often-used defense by restauranteurs that customers did not suffer food poisoning but were coming down with the flu, Harris asserts that cases of food poisoning are not difficult to prove. Certain viruses can only be transferred through food, he says, so if someone shows symptoms of the virus, there may be no other way the person could have acquired it.

Today Harris is primarily an environmental consultant, testing soil instead of food. Harris works for attorneys, banks, insurance companies and real estate developers, offering expert testimony and writing legally defensible chemical analysis reports.

Several years ago Marv Soiland, a former client of Harris’s, was developing a 13-acre piece of land north of the Santa Rosa Airport. He had already spent $100,000 to clean up what he was told was motor oil, considered an environmental health hazard. Harris ran some tests and soon surmised that the substance was not motor oil. It turned out that the property was near a cabinetmaker’s shop, which emitted large amounts of sawdust into the air. The sawdust blew onto the land and, its decaying chemical composition was read by the previous laboratory as motor oil. Harris says Soiland shrugged his shoulders and chalked up the $100,000 blunder to experience.

“We see a lot of things like that,” states Harris, “where sites appear to be contaminated, and they’re not. Or if they are contaminated, is there a real risk there?” Harris works frequently for Exchange Bank and National Bank of the Redwoods. Federal statutes provide that if a bank lends on a commercial property that later turns out to be contaminated, the bank faces reduced liability if it shows that it performed an adequate level of due diligence before finalizing the loan. This includes investigating the history and uses of the property as well as testing it for pollution. “If they don’t do anything,” says Harris of banks, “then they can inherit the liability because they were reckless.”

Harris’s reports must be legally defensible, which means they must stand up to certain scientific criteria. Harris was once hired by Mendocino-based Thanksgiving Coffee Company, which suspected contamination from the chemical it uses to de-caffeinate its coffee. Harris performed a series of tests on the coffee, including a test of the sample, a test on a “blank” (everything in the process but the sample itself) and a test on the sample, after deliberately adding the chemical he was looking for, to make sure he found it.

Today Harris doesn’t get dirty collecting soil samples or don a white lab coat and spend long hours with advanced scientific instruments. Instead he oversees projects like a field marshal and analyzes the findings.

If a remedial program must be instigated, the first task is to remove the source of contamination. Some removal processes involve a combination of blowing air into the soil at one end and vacuuming it up at the other. Other techniques involve sending micro-organisms into the ground to clean up the contaminant. All remedial techniques must be approved by the U.S. Environmental Protection Agency. “Nobody just runs out and starts drilling holes and pumping air,” he says.

Federal regulators are “great people!” Harris says with an ironic laugh. “I’d say the vast majority of the time,” he adds in a more serious tone, “the regulators really make a sincere effort to understand the problem and deal with it appropriately. But it’s also true that sometimes their judgment calls are questionable, and you wonder what they’re based on.”

There is often infighting in the environmental industry between civil engineers, geologists and the few chemists like Harris. But the issues at hand primarily involve chemical phenomena based on what exactly is the contaminant and whether or not it is a viable hazard.

One such contamination contention involved a legal case in which a large organization spent nearly $2 million to clean up some toxic soil. Harris says the organization’s engineers said it was necessary to remove some oil that had leaked from an oil tank decades previously. The land was beneath a multi-story commercial building. After two years of sucking the soil, “they pulled out a grand total of about four ounces,” says Harris, pointing to his half-empty cup of coffee for emphasis.

Petroleum occurs naturally on the earth and forms the basis for many subterranean micro-organisms, Harris explains. It generally degrades over time, but under certain conditions it can polymerize and become tar. When tar mixes with dirt, it becomes asphalt. So the company had been trying to vacuum up asphalt, something akin to raising the dead. “They could suck to the middle of the next millennium, and they’d never get it out,” he says. Harris testified to prove that the petroleum had become asphalt, which is not considered toxic; and as far as he knows, the case was then closed.

Regulators default to their “rule books,” but the books do not take into consideration all possible chemical phenomena, notes Harris.

Since Harris is often the bearer of bad news, dealing with people is often more challenging than analyzing chemical data, he notes. “Some people have a shoot-the-messenger mentality,” he says. “It’s like the accountant who tells his client he has to pay a lot of taxes, so the client gets mad at the accountant. I’ve had cases where clients went absolutely ballistic on me and blamed me for the problem.”

Harris says he feels great sympathy for his clients when he tells them they’ll need to spend $50,000 for something they can neither see nor smell, and the only reason they know it is there is because he told them so. “Candidly, this profession is not very well-respected,” he says. “Most people see environmental consultants as kind of like leeches.”

He considers global warming and ozone depletion to be earth’s most serious environmental problems, and petroleum contamination the most overrated. “A lot of people have had to pay a lot of money to clean up things that probably could have been left alone. The regulatory community, which is driven by the political community, has been a little overzealous in pursuing underground tanks,” he says.

Harris concedes that many properties have environmental risks. As an extreme example, Harris notes the detection of PCBs on both polar ice caps. “Man has left his mark from the bottom of the deepest oceans to the tops of the highest mountains. We spread contamination all over the globe.”

Located in Sonoma County, California Harris works for attorneys, banks, insurance companies and real estate developers, offering expert testimony and writing legally defensible chemical analysis reports.

Also see:

More Investigation & Assessment
Environmental consulting services
Toxic Tort / environmental litigation support & expert witness testimony
Environmental risk management services for banks and other lenders