learn from the experts: critical elements of effective environmental policies

LEARN FROM THE EXPERTS:Critical Elements of Effective

Environmental PoliciesModerator: Dianne P. Crocker, Principal Analyst, EDR InsightPresenters:

Brian A. Ginter, VP & CCIM, Appraisal/Environmental Group, Burke & Herbert Bank

Georgina Dannatt, VP, Environmental Risk Manager, Bank of the West

Larry Schnapf, Attorney, Schnapf Law

“Is my policy too stringent?”

“Is our policy too lax?”

“What are examiners looking for

during audits?”

“What are other banks our

size doing?”

“What thresholds are other

lenders using for Phase I

environmental site

assessments?”

“What criteria are other banks

using to qualify environmental

professionals?”

“What types of properties or

loans are getting the most

stringent diligence?”

“Do you have a sample environmental

policy that I can look at?”

“What resources are out there

that might help me in writing our

1 st policy?”

The Evolution of Environmental Due Diligence

2013

The OCC updates its environmental policy for the first time in18 years, expanding scope of environmental requirements—more in line with FDIC guidance…

1. Work with qualified environmental professionals.2. Define a tiered approach to due diligence.3. Pre-screen all commercial property loans.4. Require AAI-compliant Phase I ESAs, esp. high-risk loans.5. Monitor property throughout loan term.6. Document due diligence consistently.7. Protect against liability in the event of foreclosure. 8. Train internal staff.9. Track regulatory changes.10. Conduct annual policy reviews, update as necessary.

Best Practices in Lenders’ Environmental Policies

Today’s Speakers:

Brian A. Ginter, VP & CCIM, Appraisal/Environmental Group, Burke & Herbert Bank

Georgina Dannatt, VP, Environmental Risk Manager, Bank of the West

Larry Schnapf, Attorney, Schnapf Law

Critical Elements of Effective Environmental Policies

Webinar Event!Tuesday, October 29, 2013

One Manager’s Perspective

With scrutiny on lenders’ risk management policies intensifying, more and more community banks are

writing their first policies or updating old ones.

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Primary Purpose (Setting the Stage):

Comment on unique perspective in building policy from the Ground -Up

What are the critical components that should be in every policy?What elements are common to most institution’s policies?How does your institution measure up to industry best practices?How is policy administered across organizations?

*Discuss your unique perspective in building policy from the ground up; developing and maintaining. “Everything comes down to risk and value”. *Observation: Regulatory focus has shifted with more attention on environmental risk management, today, than ever before. Challenge – Environmental Risk Tolerance is subjective and unique to each institution. Providing guidance and clarity for regulatory acceptability is the challenge.  *What are you looking for from Environmental Professionals? (recommendations) *How are you addressing concerns about regulatory scrutiny? What are examiners looking for? What do you consider the primary trip-ups?  *I really, like the Comptroller’s Handbook – Commercial Real Estate Lending (8/2013) 18-point checklist. Redrafting our current policy to address these points.

Four Simple Questions and Five Topic Points in 15 minutes – Right…

When first requested to participate in this discussion four main questions and five bullet topics were provided as my discussion points…

No Challenge, how difficult could it be?

Realization: Yes I know… everyone out there just smiled. Once I realized my basic points turned into 12 pages of outline I knew I had to focus my thoughts.

Let’s Get Started

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I joined Burke & Herbert Bank four years ago, as a 28-year veteran appraiser, developer, and investor. That meant keep it applicable and simple.

Environmental challenges always come back to two points: Value and RiskTaking this approach there are five primary points that any environmental risk program needs to address:

Unique Perspective:

1. Identify the Risk (education) – you must to know what the issues are before you can understand the risk. This not only requires proper selection of third party vendor / service providers, it also requires education for your internal personnel; all personnel – Institution Size Subjective.

*Direct Staffing – providing interpretation and recommendations *Loan Officers – ability to understand what is being communicated and more importantly, they need to understand that the presence of an environmental issue does not need to kill the deal. *Operations – at least at our bank the force that pulls it all together.*Senior & Board Level Management – Even more than the loan officers; understanding that issues do not automatically mean denial.

2. Determine if or what the Cost to Cure Is - the issues specific to the property and/or external influences? Is there a Cost to Cure? Can the issue be cured?

Unique Perspective:

3. What Is The Effect On Value - How is the effect going to be addressed? Who is going to address it? Appraiser? Curtailment/Escrows? Environmental Insurance? Mitigation/Clean-Up? Risk Level Underwriting?

4. Residual Risk? - Whether (2) above, is feasible or not, is there remaining or residual risk associated with the property (remaining stigma, off site issues, long-term clean up)?

5. What Is The Effect On Value - Back to (3). If there is residual risk, there is a value concern. How are you going to address it?

Development of our risk management program started from these points. It is these points that get to the hart of the risk and, in the end, establish safe and sound risk management practice.

Policy Building Points:

Policy Building Points – in the beginning, and currently, I consider the most relative and significant points to be:

The purpose of having a proper environmental risk management program is not, simply, to satisfy regulatory compliance; the real goal of any environmental risk program is KNOWING. Knowing what risks are present, knowing who will address those risks, knowing how to mitigate those risks, and finally, just knowing what needs to be done. Knowing is what will protect the Bank and in the end the Customer.

From a Regulatory position, the focus is not just having a policy, it is also having an implementation procedure in place; identifying responsible parties throughout the process; oversight of the process; and being able to document that process.

I can attest to, and believe many of the listeners today will agree, there is increased attention on environmental risk management. What I found lacking (typical) was a defined, clear, and concise structure or guide on what is required and/or expected on the regulatory side. This is not a criticism, but an observation. It is difficult to provide clarity on a topic that is subjective by its very application – Tolerance Levels Vary. Comes down to KNOWING & DOCUMENTING.

Policy Building Points:

Notwithstanding who our regulators are, I am currently reworking our policy utilizing the updated OCC Handbook outline for, “…effective environmental risk management program…”. This 18-point outline identifies the questions and elements to be addressed in developing an effective program. (Shown on later slides)

Note: your environmental risk management program must not only address new mortgage lending, but must also address REO, OREO, and have a system to monitor existing credits.

Note: Needed - A specific part of a proper risk management program is a risk matrix. Typically, a risk matrix is segregated by property type and loan amount. This matrix is risk-tolerance specific, by institution, and will identify escalation points for increased environmental due diligence.

Challenge:

Challenge: The question was posed; what are you looking for from EPs? Good Question. I think I am speaking more to the smaller community bank sized institutions when I say, typically, we do not have full environmental departments or environmental engineers on staff. Many times, it’s just a sub-note to someone’s job description; this is OK. With a properly written policy and access to vetted third party service providers, there should be no difference in lending or regulatory risk between those BIG BANKS and us.  Remember it comes down to KNOWING. Whether the initial due diligence started with a simple questionnaire, a loan officer field inspection, or a full Phase I & II with lead/radon/asbestos testing, vapor intrusion, and other studies it’s better to know. If there is no one on staff with the expertise to determine the scope of risk there are many service providers that can provide the expertise on a case by case basis. I am not advising full studies on every credit; define your risk tolerances and develop a Matrix.  Specifically, when I am requesting Phase I or II reports I want to know as much as I can. This is not only specific RECs & VECs but, also any other observations, by my expert (chemical storage, transformers, hydraulic systems, ect.), even if there is no immediate risk. Additionally, I want commentary and recommendations associated with any risks.  

Challenge:

Challenge: The Risk Program must be written to EVERYONE…

• First and Foremost – Developed for the safe & sound operation of the institution.

• Satisfaction of the Regulators• Satisfaction of Senior Management & Board Members• Satisfaction of the other supporting departments within the institution• Last but not least – Satisfaction of the Lending Staff (they will never be

happy)

Challenge: Having a Risk Management Program that is comprehensive yet provides the flexibility (with documentation) for exceptions. No two situations are the same. Know & Document.  

Comptroller’s Handbook – Commercial Real Estate Lending (8/2013)

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Comptroller’s Handbook – Commercial Real Estate Lending

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Exit Summary: 

In Summary –

As with any Policy:• Written• Implementation Procedure• Over-Site• Documentation Process (document everything!)

Thoughts:• any policy must be considered a living document - if and when new

information becomes available amend the policy.• It is all about knowing; and when you know, document it.

Get a theme here… Know and Document!!!

That concludes my portion; I would like to turn this webinar over to Georgina Dannatt with Bank of the West, who will clear up any confusion I may have caused… . Q & A at the end of the program.

Managing Environmental Risk

Georgina Dannatt, CHMM, REPA

VP, Environmental Risk ManagerBank of the West

October 29, 2013

Why have an Environmental Risk Program?With few perceived losses and protections of the Secured Credit

Exemption (1996 Asset Conservation Act), many banks moved credit risk management focus away from environmental• More appetite for risk as banks grew larger & more competition

for desirable properties• Lenders moved risk thresholds up to adjust for increased

property valuationsBut…• Banks are required to have a environmental program• Regulators increased the emphasis on risk management and

proactive procedures to minimize liability due to a perceived over-concentration of Commercial Real Estate risk

• Today’s properties can be inherently riskier- even “low risk” sites may not really be low risk

• Market pressure for in-fill redevelopment, usually there was a previous use

• Known contaminated sites and Brownfields• Economic conditions may increase likelihood of foreclosure

Purpose of an Environmental Risk Management Program

• Satisfy Bank credit and sound lending practices• Satisfy regulatory requirements (Fed, OCC, FDIC, OTS, NCUA)

• Understand and consider environmental concerns • Identify environmental conditions or liabilities which

could:◦ Impact the borrower’s ability to repay the debt◦ Impair Bank’s ability to recover funds in the event

of default• Qualify for CERCLA liability protection (2002 Brownfield Amendments)

• Know what is in your portfolio / preplan exit strategy

Environmental Risks in Lending• Impacts on Borrower

– Financial obligations for contamination cleanup, fines/penalties, loss of permits could disrupt cash flow/ debt servicing

– Remedial action can result in access issues, business interruption, installation of remedial systems or demolition, health risks

– Deed Restrictions and Activity/Use Limitations may affect site use, redevelopment, and construction plans

– Reduced collateral value- cost to cure contamination, stigma– Construction delays– Increased marketing time– Inability to refinance– Legal claims (3rd party lawsuits, OSHA, unions)

– Legacy risks (responsibility for past waste disposal/ releases)

Environmental Risks in Lending (cont.)• Bank Foreclosure

– Bank may have to incur cost of investigation, decommissioning, waste removal

– Unable to foreclose– Must discount price in order to sell– Indemnify purchaser– Secured creditor exemption may say the bank does not have to do new

cleanup, but the reality is remedial work is often necessary in order to re-sell

– Bank not exempt from all environmental laws- Clean Water Act (esp. stormwater), Clean Air Act, RCRA (chemical and haz waste storage/disposal), OSHA, others

• Direct Bank liability can occur– Participation in management of operations voids CERCLA exemption– Need to fulfill Continuing Obligations- taking steps to properly contain or

stabilize release after foreclosure, or maintain ongoing cleanup activities– In some states, must notify if contamination could pose an imminent risk

to public health

Lender Perspective• The existence of past or present contamination does not

necessarily make a property unacceptable as collateral.

• Environmental risks must be fully understood and considered in underwriting transactions- “eyes wide open”

• The fact that the borrower, their environmental consultant, and/or an environmental oversight agency has concluded a risk is acceptable doesn’t necessarily make it acceptable to the lender.

• Bank reviews are done for the bank’s use only. Borrowers and other lenders should not rely upon the results.

Environmental PolicyFDIC Requirements (FDIC Financial Institution Letter FIL-98-2006)

• Establish an Environmental Risk Program• Designate a Senior Officer knowledgeable in environmental

matters to be responsible for the program implementation • Provide staff training• Require an environmental review or analysis during the

application process• Include loan documentation standards• Establish environmental risk safeguards in loan workout and

foreclosure situations.

OCC and other agencies have similar guidance. All guidance is flexible so each bank can tailor to meet their situation.

Developing an Environmental Risk Policy• Basic question is what kind of due diligence does the bank need?

• What is the purpose? And what will you do with the data?

• Banks design their own programs to fit their niche and risk perspective

Considerations:

– Protect bank from issues during loan or upon foreclosure– Bank’s appetite for risk – how much are you willing to lose?

(environmental risk is not related to the size of the loan) – Front end assessment of risk vs. at back end when contemplating

foreclosure– Competitive influences and regional/market factors– In-house vs. Outsourced– Recouping costs for due diligence– Timing and hassle factors– Bank regulator requirements/expectations

Developing an Environmental Risk Policy (cont’d)

• Support from Senior Management & willingness to enforce• Identify transactions and collateral types subject to policy• Develop a tiered due diligence matrix- less risky collateral and

lower value loans get less scrutiny; set de minimis levels• Create screening approaches • Define next steps for when an issue is identified• Determine who has the authority to waive policy• Educate bankers and credit staff• Monitor portfolio• Develop relationships with quality consultants and vendors

Goal: Identify environmental risks and factor into overall credit analysis.

(Business and credit aspects may override environmental risks)

Create a Policy MatrixOnce the policy thresholds are set, create an easy to use matrix• Reduces confusion by users • Defines collateral risk categories and loan threshold amounts• Conceptualizes bank’s financial risk tolerance stance• Be prepared for the matrix to flex

Typical Lender Environmental Due Diligence•Environmental Questionnaire completed by borrower•Tiered Due Diligence with screening level assessments for smaller loans Database, Desktop Review (=Database+Historicals), Site Visit, Transaction Screen (TSA)•Phase I Environmental Site Assessments for high risk properties and for all loans at some selected Loan Amount•Bank-ordered Phase I prior to any foreclosure, deed-in-lieu, or other action to take ownership

Environmental Due Diligence Options• Phase II (Performed by EP) • Phase I ESA (Performed by EP)• Transaction Screen Assessment (TSA) (Performed by EP)• Desktop + Site Inspection (by Bank or EP)• Desktop Review (Performed by Bank or EP)• Database Report (Performed by Bank or EP)• Environmental Questionnaire (completed by Borrower)• Relationship Manager’s inquiry and/or Site Inspection• None

More comprehensive as you move up

EP= Environmental Professional (consultant)

Many banks will choose to not to use all these assessment types

Phase II doesn’t supersede Phase I; the two serve different purposes and are complimentary

-------------------------------- Loan Size ------------------------------------------------

Collateral Risk Type <$500K $500K - <

$1M $1M - $2M >$2M

New Loan- Low Risk

Review EQ EQ+Database -or-

EQ+desktop

EQ+TSA EQ+Phase I

New Loan-High Risk

EQ+TSA -or- Phase I

EQ+Phase I EQ+Phase I EQ+Phase I

New Loan- Low or Med Risk with Existing Outdated Phase I >12 mo. old

EQ+Review Report

EQ+Rpt Rvw + either

Database or Desktop

EQ+Rvw Rpt+ Desktop+Site

Inspect. -or-

EQ+TSA

EQ+Ph I Update -or-

EQ+new Phase I

Renewal-Low Risk

Rvw EQ EQ+Database -or-

EQ+Desktop

EQ+Desktop or EQ+Desktop+ Site Inspect.

EQ+Desktop+ Site Inspect.

-or- EQ+TSA

Renewal –High Risk

EQ+Desktop+

Site Inspect.

EQ+TSA EQ+TSA for recent/ EQ+Ph I update for

older

EQ+Ph I update -or-

EQ+new Phase I

Foreclosure EQ+Phase I EQ+Phase I EQ+Phase I EQ+Phase I

Example Policy Matrix for Due Diligence

Typical Risk Ranking of Collateral

Low- office/hotel/multi-family/school/religious facility built after 1980 on previously undeveloped land, raw land, crop land

Medium- older sites in urban areas, light industrial, small scale chemical use, car wash, small auto repair, small medical/dental labs, photographic lab, wineries, farms, agricultural product packing, small above ground tanks

High- gas stations, underground tank sites, on-site dry cleaners (chlorinated solvent use), plating shop, semiconductor/print circuit board, older auto dealerships, large auto repair facilities, large-scale chemical use, hazardous waste generator, junk yards, large car wash, large trucking depot, landfill, tanneries, foundries, mining, large dairies and feed lots, canneries, lumber treatment

Ranking applies to current, past, and future site uses.

List is not comprehensive. Each bank may define risks differently.

Environmental Assessments and Consultants

ASTM E1527 & E1528 Develop a bank Scope of Work Special requirements- SBA, Fannie Mae, Freddie Mac, HUD Not all reports are equal Reports should have a narrative and tell the property’s

story Must answer questions and explain data gaps Recognized Environmental Conditions (RECs) and

Business Environmental Risks (BERs) The role of Agency File Reviews Need to review from your bank's risk perspective Approved consultants

Common Obstacles to Finance• Information is not adequate to assess risks• Project Feasibility – timing, accessibility• Incomplete Assessment of Risks• Unknowns

Mitigation of Environmental Risks Correct environmental issues before closing Correct after closing- holdback funds for cleanup (150%- 200%) Reduce appraised value or loan amount Include remediation costs in cash-flow Underwrite as unsecured debt Take additional collateral (due diligence will be needed for that property too)

Indemnification/ Funding commitments Environmental Insurance Combination of above

Making the World Safe For

BanksLarry Schnapf212-876-3189

Larry@schnapflaw.com

CERCLA Liability Strict, Joint and Retroactive Liability Four classes of Liable parties:

Past and Current Owners Past and Current Operators

Defenses Third Party Defense (requires due care) Bona Fide Prospective Purchaser, Contiguous Property

Owner, Innocent Landowner all appropriate inquiry Post-acquisition “appropriate care”

Secured Creditor Exemption Indicia of ownership without participating in management of

facility Foreclose but take commercially reasonable steps to sell property

Other Sources of Liability

Resource Conservation and Recovery Act (RCRA) (UST) Secured Creditor Exemption

State Superfund and UST Laws Many have secured creditor exemption

State Superlien Laws Common Law Disclosure

Leading Sources of Environmental Contamination

Historic dry cleaners Historic gas stations Historic manufactured gas plants Historic wood treatment Former bombing ranges Vapor intrusion from off-site sources

Know Your Bank and Loan Disposition

Traditional Mortgage Lender Asset-Based Lender Loan Syndication Securitization Refinance vs. New Loan

Typical Bank Concerns Credit Risk-

Borrower Ability to Pay Loan Value of Collateral

Direct Liability Cleanup costs Toxic Torts

Reputational Risk

Recent Relevant Regulatory Guidance

SBA SOP 50-57 [http://www.environmental-law.net/2013/02/new-sba-sop-50-57-may-establish-best-environmental-practices-for-foreclosures/

OCC Revised CREL Handbook- [http://www.environmental-law.net/2013/09/more-prominent-role-for-environmental-risk-management-in-revised-occ-handbook/

Lender Environmental Risk Management

Program Pre-Loan

ESA Scope of work List of acceptable consultants Identify transactions requiring Phase I

ESAs Reliance Language and Consultant

Insurance Review Process of ESAs Commitment Letters

Risk Management Cont’d When is Phase II required Approval Process for Environmentally-

Impaired Loans Escrows and Insurance Communication With Borrower Standard Loan Covenants and

Indemnity

Risk Management Cont’d Loan Administration

Periodic Monitoring Permissible Oversight Disclosure for Securitization and

Syndications Workouts and Foreclosure

Heightened risk Reevaluate Environmental Issues Review Federal and State Requirements Security and Auctions

Bank SOW ASTM Non-ASTM Items Acceptable Consultants Reliance Language

Non-ASTM Issues Asbestos LIW LBP Disclosure Heating Oil Tanks Septic Fields/Dry Wells Mold

Loan Documentation Loan Covenants to Perform Cleanup Loan Guaranty Loan Indemnity

Free-standing Survive Loan Payout

Other Risk Minimization Tools

Regulatory Approval NFA, VCA or PPA Extend to lender and successors Confirms landowner defenses Contribution Protection Release of Lien On-going Obligations Serves basis for cost estimate

Know State Lender Liability Requirements Remedial Action Plan (RAP)

Quantifies Cleanup Costs Shows Site Fully Characterized

Risk Minimization Tools, cont.

Escrow or Holdback Brownfield Programs UST and Dry Cleaner Funds

eligibility Covered costs (cleanup, PD,TP) deductible assignment of rights

Indemnity Insurance Guaranteed Remediation Programs

Elements of Indemnity Address pre-existing known and

unknown contamination On-Site and Off-site generator

liability Current and former owned or

operated locations Predecessors, former subsidiaries or

business units Bodily Injury and Property Damage

Insurance Secured Creditor Insurance PLL or Cost Cap Insurance

Branch Office White Swan Cleaner Superfund Site

(BOA) In the Matter of Hamburg Mills

Creek Superfund Site, Docket No. CERC-03-2013-004[ http://www.environmental-law.net/2012/10/pa-bank-agrees-to-reimburse-epa-for-removal-costs-at-owned-property ];

Auction/Sale Disclosure Cases

Rhima v JPMorgan Chase Bank, [ http://www.environmental-law.net/2012/06/bank-not-liable-for-failing-to-disclose-environmental-issues-at-foreclosure-sale ]

Lusk v First Century Bank, [ http://www.environmental-law.net/2012/05/bank-not-liable-for-auction-sale-of-contaminated-property ]

Auction/Sale Cases Disclosure Cont’d

Ritschel v. Spencer Savings Bank, SLA, [ http://www.environmental-law.net/2011/10/state-appeals-court-affirms-damage-award-against-bank-for-sale-of-contaminated-property ] [sale of former branch office property]

In re Southbridge Savings Bank, [(http://lschnapf.blogspot.com/2011_06_01_archive.html ] [disclosure of oil tank spill]

Foreclosure on Contaminated Property

Forest Park National Bank & Trust v Ditchfield, [ http://www.environmental-law.net/2012/07/foreclosing-lender-rcra-action-may-proceed ]

Buckbee-Mears Co. Superfund Site, [ http://www.environmental-law.net/2012/09/bank-enters-into-settlement-with-epa-for-contaminated-ny-site

In matter of Rehrig-United International Site- [http://www.environmental-law.net/2013/02/bank-agrees-to-reimburse-epa-for-post-foreclosure-removal-action-costs/ ]

Foreclosure Cont’d In the Matter of Ultimate

Industries Site, (f/k/a State of Ohio v Estate of Roberts] [ http://www.environmental-law.net/2012/10/ohio-bank-to-partially-reimburse-epa-for-removal-costs-related-to-defunct-borrower-facility ]

In re Marble Cliffs Crossing- [http://www.environmental-law.net/2013/05/methane-gas-an-apartment-complex-and-a-bankruptcy-filing/

Trustee Properties In the Matter of Browning Lumber- [

http://www.environmental-law.net/2012/09/trustee-bank-agrees-to-removal-action-settlement-with-epa/]

Bank Subsidiary Tennessee v. Roane Holdings Ltd., 2011 U.S.

Dist. LEXIS 143703 (E.D.TN 12/14/11) [ http://www.environmental-law.net/2012/03/acquisitions-bring-cercla-liability-to-banking-conglomerate ]

Morgan Stanley Services Corp. v NJDEP, 2011 N.J.Super. Unpub. LEXIS 182 (App. Div. 1/26/11)[ http://lschnapf.blogspot.com/2011/02/court-reverses-revocation-of-nfa-letter.html ]

Miscellaneous Alfieri v. Bertorelli, 2011 Mich. App. LEXIS

1796 (Mich.Ct. App. 10/18/11)[ http://www.environmental-law.net/2011/11/state-court-reduces-damages-of-condo-purchaser-because-it-failed-to-conduct-environmental-investigation/ ] [condo financing]

Casale v Segal & Morel, 2011 N.J. Super. Unpub. LEXIS 1228 (App. Div. 5/12/11) [defective radon system]

Ridge Seneca Plaza v BP Products, et al, 2011 U.S. Dist. LEXIS 47288 (W.D.N.Y. 5/2/11) [ http://www.environmental-law.net/2011/10/ny-case-illustrates-why-borrowers-should-not-simply-rely-on-lender-approval-of-phase-1 ][reliance on prior phase 1]

Q&A