1 Environmental Environmental Insurance and Risk Insurance and Risk Management Tools in Management Tools in Brownfields Cleanup Brownfields Cleanup and Redevelopment and Redevelopment May 2, 2006 May 2, 2006 Disclaimer: Disclaimer: This presentation is the compilation of input by multiple insurance This presentation is the compilation of input by multiple insurance industry representatives. Information does not reflect the views of the U.S industry representatives. Information does not reflect the views of the U.S Environmental Protection Agency Environmental Protection Agency
Transcript
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Environmental Environmental Insurance and Risk Insurance and Risk
Management Tools in Management Tools in Brownfields Cleanup Brownfields Cleanup and Redevelopmentand Redevelopment
May 2, 2006May 2, 2006
Disclaimer:Disclaimer: This presentation is the compilation of input by multiple This presentation is the compilation of input by multiple insurance industry representatives. Information does not reflect the insurance industry representatives. Information does not reflect the views of the U.S Environmental Protection Agencyviews of the U.S Environmental Protection Agency
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Overview Overview
Risk Management Approaches to Risk Management Approaches to Brownfields Cleanup and RedevelopmentBrownfields Cleanup and Redevelopment
Environmental Insurance for BrownfieldsEnvironmental Insurance for Brownfields Negotiating Environmental InsuranceNegotiating Environmental Insurance Environmental Insurance ClaimsEnvironmental Insurance Claims Environmental Insurance ExamplesEnvironmental Insurance Examples Additional Information ResourcesAdditional Information Resources Questions and AnswersQuestions and Answers
Land Use Land Use Regulatory AgenciesRegulatory Agencies
Local OfficialsLocal Officials Economic Economic
Development Development OfficialsOfficials
Insurance Insurance CompaniesCompanies
Brownfields redevelopment participants often have competing goals
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Types of Risk Management ToolsTypes of Risk Management Tools Due DiligenceDue Diligence
Conducting All Appropriate InquiryConducting All Appropriate Inquiry Understanding pre-existing conditions and impacts on Understanding pre-existing conditions and impacts on
developmentdevelopment Private Party Contractual ProtectionsPrivate Party Contractual Protections
IndemnitiesIndemnities Representations and warrantiesRepresentations and warranties CovenantsCovenants Conditions to closingConditions to closing ReleasesReleases Fixed price and risk transfer contracts with contractorsFixed price and risk transfer contracts with contractors
Financial ToolsFinancial Tools Escrow accountsEscrow accounts Purchase price adjustmentPurchase price adjustment Grants and loansGrants and loans
Environmental InsuranceEnvironmental Insurance Federal and State Regulatory ProtectionsFederal and State Regulatory Protections
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Considerations when Choosing a Considerations when Choosing a Risk Management ToolRisk Management Tool
Due DiligenceDue Diligence May later prove to have been incompleteMay later prove to have been incomplete Science evolvesScience evolves
EscrowsEscrows Actual costs may exceed escrowed Actual costs may exceed escrowed amountamount
Willingness of indemnitor to executeWillingness of indemnitor to execute Financial risk of indemnitorFinancial risk of indemnitor
Environmental Environmental InsuranceInsurance
Availability and costAvailability and cost Terms and exclusions (e.g., claims made)Terms and exclusions (e.g., claims made) Liability limitsLiability limits
Statutory/Common Law Statutory/Common Law RecourseRecourse
Bankruptcy/Dissolution of PRPsBankruptcy/Dissolution of PRPs Litigation expensesLitigation expenses TimeTime
Statutory Safe HarborsStatutory Safe Harbors Potential lack of certaintyPotential lack of certainty Burden of proofBurden of proof
No Further Action No Further Action Letters/Comfort LettersLetters/Comfort Letters
availableavailable Significant limits of coverage Significant limits of coverage
availableavailable Deductibles more reasonableDeductibles more reasonable Expansion of coverageExpansion of coverage Payment of claims much more Payment of claims much more
common than litigationcommon than litigation Regulations more stableRegulations more stable
Major insurers include: AIG, XL, Zurich, Chubb, Major insurers include: AIG, XL, Zurich, Chubb, ACE, Liberty International Underwriters, and ACE, Liberty International Underwriters, and QuantaQuanta
2005 Total premiums approximately $2 billion2005 Total premiums approximately $2 billion Approximately 35% related to property and Approximately 35% related to property and
brownfield transactionsbrownfield transactions Available limitsAvailable limits
$50 million or more from any one insurer$50 million or more from any one insurer $200-250 million by “stacking” insurers$200-250 million by “stacking” insurers
Competitive pricing and termsCompetitive pricing and terms
for Brownfieldsfor Brownfields Policies are individually tailored for Policies are individually tailored for each projecteach project
Generally, policy holders can include Generally, policy holders can include buyers, sellers, and intermediary buyers, sellers, and intermediary owners (e.g., redevelopment authorities)owners (e.g., redevelopment authorities)
Principal coverage types include:Principal coverage types include: Pollution Liability (PL)Pollution Liability (PL) Cost Cap (CC)Cost Cap (CC) Lender Pollution Liability (LPL)Lender Pollution Liability (LPL) Finite-/Blended-RiskFinite-/Blended-Risk
There are dozens of types of environmental insurance available
Cleanup of unknown pre-existing and/or new pollution conditions Cleanup of unknown pre-existing and/or new pollution conditions at or emanating from the siteat or emanating from the site
Third-party bodily injury and/or property damage claims caused Third-party bodily injury and/or property damage claims caused by pollution conditions at or emanating from the site by pollution conditions at or emanating from the site
““Additional” CoverageAdditional” Coverage Business interruption/construction delay costsBusiness interruption/construction delay costs Pollution-related claims at scheduled non-owned disposal sitesPollution-related claims at scheduled non-owned disposal sites Pollution-related claims related to transportation of waste/productPollution-related claims related to transportation of waste/product Natural resource damage claimsNatural resource damage claims Diminution of property values Diminution of property values
Claims made and reported coverageClaims made and reported coverage TermsTerms
Multi-year periods available: typically 5 years up to a maximum of Multi-year periods available: typically 5 years up to a maximum of 10 years10 years
Cost CapCost Cap Basic Coverage: Unanticipated increase in costs of a Basic Coverage: Unanticipated increase in costs of a
known cleanup due to one of the following:known cleanup due to one of the following: Cost overruns for remediation expensesCost overruns for remediation expenses Changes in regulatory standards/lawsChanges in regulatory standards/laws Discovery of new contaminants or more of same – on and off-Discovery of new contaminants or more of same – on and off-
sitesite A remedial action plan and associated cost estimates A remedial action plan and associated cost estimates
typically required by the insurance carriertypically required by the insurance carrier TermsTerms
Period: typically the length of the cleanup projectPeriod: typically the length of the cleanup project Premium: ranges 8-20% of the limit purchasedPremium: ranges 8-20% of the limit purchased Limits: available limits may be capped at 2 to 3 times the Limits: available limits may be capped at 2 to 3 times the
of 10-30%of 10-30% Co-insurance may be required where the insured pays a Co-insurance may be required where the insured pays a
proportion of all costs above the deductible or SIRproportion of all costs above the deductible or SIR Underwriting fee may applyUnderwriting fee may apply
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Lender Pollution LiabilityLender Pollution Liability Basic Coverage: Policy pays for covered loans once a Basic Coverage: Policy pays for covered loans once a
loan default occurs where pollution conditions exist, loan default occurs where pollution conditions exist, which may include:which may include: Collateral valueCollateral value Loan balance (typically the lesser of loan balance or cleanup Loan balance (typically the lesser of loan balance or cleanup
Sometimes lenders require property owner to Sometimes lenders require property owner to purchase this insurance as terms of the loanpurchase this insurance as terms of the loan
TermsTerms Period and premium are negotiablePeriod and premium are negotiable Limits: typical $5-10 million; minimum $1 millionLimits: typical $5-10 million; minimum $1 million Deductibles: $25,000 and upDeductibles: $25,000 and up
Transfers financial liabilities from of environmental Transfers financial liabilities from of environmental liabilities to an insurance carrier:liabilities to an insurance carrier:
Responsible party pays the insurer the entire present value of Responsible party pays the insurer the entire present value of the projected cleanup cost when the insurance is obtained plus the projected cleanup cost when the insurance is obtained plus risk premium for timing, excess costs and liability coveragerisk premium for timing, excess costs and liability coverage
Insurer takes on the financial responsibility for cleaning up the Insurer takes on the financial responsibility for cleaning up the propertyproperty
Combines coverage for known and unknown environmental Combines coverage for known and unknown environmental liabilitiesliabilities
Typically, incorporates Pollution Liability and Cost Cap Typically, incorporates Pollution Liability and Cost Cap insurance elementsinsurance elements
Involves a timing risk (i.e., if expenses are paid out Involves a timing risk (i.e., if expenses are paid out faster than expected)faster than expected)
TermsTerms Most terms are highly project specificMost terms are highly project specific Period is negotiable, but is typically more than 10 Period is negotiable, but is typically more than 10
yearsyearsPreferred insurance solution for longer cleanups
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Environmental Insurance for Environmental Insurance for Brownfields –SummaryBrownfields –Summary
Kenneth Anderson, Aon Kenneth Anderson, Aon EnvironmentalEnvironmental
Arthur Harrington, Godfrey and Arthur Harrington, Godfrey and KahnKahn
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Negotiation ConsiderationsNegotiation Considerations Have knowledgeable and experienced brokers, Have knowledgeable and experienced brokers,
attorneys, and environmental consultantsattorneys, and environmental consultants Have critical environmental information about Have critical environmental information about
the property, particularly information as to the property, particularly information as to remedy and costingremedy and costing
Present the contractual arrangements and any Present the contractual arrangements and any regulatory agreements to the underwriterregulatory agreements to the underwriter
Ensure availability of regulators to answer Ensure availability of regulators to answer questions and speak to the statusquestions and speak to the status
Understand the nature of the risks to be insured Understand the nature of the risks to be insured and the trigger points at which coverage will and the trigger points at which coverage will respondrespond .
Adapt environmental insurance policies to Adapt environmental insurance policies to each individual “site” or “deal”each individual “site” or “deal”
Read policies carefully – there are more than Read policies carefully – there are more than 100 policies currently in the marketplace and 100 policies currently in the marketplace and each one is quite differenteach one is quite different
Combine policies with indemnities, Combine policies with indemnities, contractual obligations, guarantees, bonds, contractual obligations, guarantees, bonds, and other risk management toolsand other risk management tools
Use qualified environmental risk specialists to Use qualified environmental risk specialists to provide the necessary depth of expertise in provide the necessary depth of expertise in insurance and risk and incorporate them early insurance and risk and incorporate them early in the process to maximize the results in the process to maximize the results
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Negotiation Issues for Pollution Negotiation Issues for Pollution Liability PoliciesLiability Policies
Limitation of Carrier’s Subrogation RightsLimitation of Carrier’s Subrogation Rights Limiting Carrier’s Cancellation RightsLimiting Carrier’s Cancellation Rights Limiting the Prohibitions on Actions against Limiting the Prohibitions on Actions against
Carrier without the Insured’s full compliance of Carrier without the Insured’s full compliance of the policy termsthe policy terms
Modifying Mandatory Arbitration ProvisionsModifying Mandatory Arbitration Provisions Separation of Obligations of Additional and Separation of Obligations of Additional and
Named InsuredsNamed Insureds Clarification of Deductible Obligations among Clarification of Deductible Obligations among
multiple Insuredsmultiple Insureds Limiting the Known Pollution Condition Limiting the Known Pollution Condition
ExclusionsExclusions
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Negotiation Issues for Cost Cap Negotiation Issues for Cost Cap Policies Policies
Modifying the Carrier’s prohibition against Assignment of Modifying the Carrier’s prohibition against Assignment of Policy by the InsuredsPolicy by the Insureds
Limiting the Carrier’s Subrogation RightsLimiting the Carrier’s Subrogation Rights Clarifying the Contractual Distinction between known and Clarifying the Contractual Distinction between known and
unknown pollution conditions to favor the Insured for unknown pollution conditions to favor the Insured for coverage issuescoverage issues
Modifying the Coinsurance Participation obligation where Modifying the Coinsurance Participation obligation where there are multiple Insuredsthere are multiple Insureds
Clarification of Future Use condition for the property to Clarification of Future Use condition for the property to favor the Insured for coveragefavor the Insured for coverage
Careful clarification of the scope of the Approved Remedial Careful clarification of the scope of the Approved Remedial PlanPlan
The need to clarify the Termination Date of Remedial Plan The need to clarify the Termination Date of Remedial Plan coveragecoverage
Understanding the Need to Coordinate Reopener coverage Understanding the Need to Coordinate Reopener coverage for such conditions under the Pollution Legal Liability Policyfor such conditions under the Pollution Legal Liability Policy
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Selecting an Insurer Selecting an Insurer Specialization in environmental Specialization in environmental
insuranceinsurance Financial strength and ratingFinancial strength and rating Years in the environmental insurance Years in the environmental insurance
marketmarket Commitment/availability of resourcesCommitment/availability of resources General reputation and history of claims General reputation and history of claims
paymentpayment Coverage availableCoverage available PricingPricing
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What is the premium cost a What is the premium cost a function of?function of?
Limit of liability purchased Limit of liability purchased Self-insured retention assumed (i.e., threshold Self-insured retention assumed (i.e., threshold
the insured must pay before the policy starts to the insured must pay before the policy starts to pay)pay)
Stage of remediationStage of remediation Size of the site or dealSize of the site or deal Level of characterization and due diligenceLevel of characterization and due diligence Level of regulatory agency oversight/involvementLevel of regulatory agency oversight/involvement Portfolio vs. single propertyPortfolio vs. single property Level of competitionLevel of competition Future site use and surrounding occupanciesFuture site use and surrounding occupancies Degree of variability of riskDegree of variability of risk Expected remedial costs and degree of volatilityExpected remedial costs and degree of volatility
Kenneth Anderson, Aon Kenneth Anderson, Aon EnvironmentalEnvironmental
Arthur Harrington, Godfrey and Arthur Harrington, Godfrey and KahnKahn
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Claims Submission and Claims Submission and DocumentationDocumentation
Notify the broker that placed the policyNotify the broker that placed the policy Timely submit the claimTimely submit the claim
Check the policy for specific notice Check the policy for specific notice requirementsrequirements
“…“…as soon as possible…”as soon as possible…” “…“…as soon as practicable…”as soon as practicable…” “…“…within ____ days of notice/knowledge…”within ____ days of notice/knowledge…”
Review the policy for specifics on notice, Review the policy for specifics on notice, including timing, to whom the claim is to be including timing, to whom the claim is to be addressed, particulars of the claim, etc.addressed, particulars of the claim, etc.
Keep accurate recordsKeep accurate records Document noticesDocument notices
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Claims Submission ProcessClaims Submission Process Insured submits claimInsured submits claim Insurer acknowledges in writing receipt of Insurer acknowledges in writing receipt of
claim, assigns a claim number, and assigns claim, assigns a claim number, and assigns a claims adjustera claims adjuster
Claims adjuster issues letter accepting Claims adjuster issues letter accepting coverage, declining coverage, or accepting coverage, declining coverage, or accepting coverage with a reservation of rightscoverage with a reservation of rights
Second letter typically cites policy Second letter typically cites policy provisions to support position taken by provisions to support position taken by insurance companyinsurance company
Environmental insurance policies are fairly new – therefore there is no body of law on claims disputes like CGL policies
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Environmental Environmental Insurance: An Insurance: An
Insurance Application Insurance Application to a Brownfield to a Brownfield
ProjectProjectArthur Harrington, Godfrey and Arthur Harrington, Godfrey and
KahnKahn
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BackgroundBackground
Former American Brass FoundryFormer American Brass Foundry 100 year history as a foundry100 year history as a foundry 29 Acres29 Acres
Current ownership/status of propertyCurrent ownership/status of property Property is vacantProperty is vacant Known soil and groundwater Known soil and groundwater
contaminationcontamination
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Pre-Negotiation StrategyPre-Negotiation Strategy
City threatened condemnation with City threatened condemnation with municipal exemption liability for clean municipal exemption liability for clean upup
City threatened cost recovery for City threatened cost recovery for remediation necessary to support remediation necessary to support residential redevelopmentresidential redevelopment
Estimated cost difference for industrial Estimated cost difference for industrial versus residential remediation was in versus residential remediation was in excess of $15 millionexcess of $15 million
TRC obligated for building demolitionTRC obligated for building demolition TRC assumes remediation responsibility to TRC assumes remediation responsibility to
baseline remediation baseline remediation City assumes remediation responsibility City assumes remediation responsibility
above baseline remediationabove baseline remediation TRC Hold Harmless obligationsTRC Hold Harmless obligations City Barrier ObligationCity Barrier Obligation Payment to TRC through Commutation Payment to TRC through Commutation
Account (managed by AIG)Account (managed by AIG) Future industrial development on the Future industrial development on the
property is prohibitedproperty is prohibited
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Property Conveyance, Settlement Property Conveyance, Settlement Agreement, and ReleaseAgreement, and Release
Land transfer to the CityLand transfer to the City City release and agrees to indemnify City release and agrees to indemnify
ARCo and OCKARCo and OCK City's indemnification and assumption City's indemnification and assumption
obligations does not include certain obligations does not include certain specified claimsspecified claims
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The AIG Insurance PolicyThe AIG Insurance Policy Ensure that TRC performs its Cleanup Ensure that TRC performs its Cleanup Insurance policy paid by TRC out of payments Insurance policy paid by TRC out of payments
made by the parties made by the parties 30-Year Term30-Year Term No DeductiblesNo Deductibles Insurance CoverageInsurance Coverage
On-site and off-site cleanup for pre-existing On-site and off-site cleanup for pre-existing contaminationcontamination
Third party claims for off-site cleanup ($11 million)Third party claims for off-site cleanup ($11 million) Remediation cost cap insurance ($15.7 million)Remediation cost cap insurance ($15.7 million)
Insureds: City, ARCo, OCK, as well as any Insureds: City, ARCo, OCK, as well as any future owners and developersfuture owners and developers
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Funding Sources for CityFunding Sources for City
$1 million Brownfield grant from $1 million Brownfield grant from Wisconsin Department of CommerceWisconsin Department of Commerce
$1 million Brownfields loan/grant from $1 million Brownfields loan/grant from U.S. EPAU.S. EPA
Tax incremental financing for balance Tax incremental financing for balance of $5 million City shareof $5 million City share
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Planning StrategyPlanning Strategy
City retained Urban Land Institute for City retained Urban Land Institute for unbiased master plan for siteunbiased master plan for site
ULI will prepare a comprehensive ULI will prepare a comprehensive suggested development plan with full suggested development plan with full public inputpublic input
Expected property redevelopment Expected property redevelopment plans involve:plans involve: Commercial development on the West endCommercial development on the West end Residential and school proposed on the Residential and school proposed on the
East endEast end
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Questions and Questions and AnswersAnswers
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A Special Thanks to the A Special Thanks to the Following PeopleFollowing People
Kenneth Anderson, Aon EnvironmentalKenneth Anderson, Aon Environmental Arthur Harrington, Godfrey and KahnArthur Harrington, Godfrey and Kahn Donna Sandidge, Marsh Risk ConsultingDonna Sandidge, Marsh Risk Consulting Pamela Andes, Allen Matkins Leck Gamble & Pamela Andes, Allen Matkins Leck Gamble &
Mallory LLPMallory LLP Kristen Yount and Peter Meyer, Northern Kristen Yount and Peter Meyer, Northern
Kentucky UniversityKentucky University Speakers and Participants at the Speakers and Participants at the
Environmental Insurance Workshops held in Environmental Insurance Workshops held in Washington, DC and nine Regional EPA Washington, DC and nine Regional EPA offices from 2002-2005offices from 2002-2005
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Additional InformatioAdditional Information Resourcesn Resources
