Workshop LL Environmental Permitting Considerations in Acquisitions, Divestitures, and Mergers Wednesday, March 28, 2018 11:15 a.m. to 12:30 p.m.
Biographical Information William H. Haak Haak Law LLC Cleveland, Ohio 216.772.3532 whh@haaklawllc.com William H. Haak is the Founder of Haak Law LLC (www.haaklawllc.com) – an environmental, health & safety legal and consulting firm based in Cleveland, Ohio. He has almost 20 years of experience in occupational safety law and worker safety, and nearly 25 years of experience in environmental law (including extensive experience in air pollution control law and multi-media environmental compliance). Mr. Haak practices nationally in the United States and consults globally on all matters related to the EHS field (plus security and crisis management). Mr. Haak graduated from The University of Akron (Business Finance) and Case Western Reserve University School of Law (J.D. with an emphasis on litigation and trial practice). Following law school, he worked as an Assistant Attorney General in the State of Ohio Attorney General’s Environmental Enforcement Section. As counsel to Ohio EPA, Mr. Haak’s practice was focused primarily on civil and administrative air pollution control cases. During his time with the Attorney General’s Office, Mr. Haak resolved civil environmental enforcement actions resulting in civil penalties totaling approximately $4 million. Prior to forming Haak Law LLC, Mr. Haak was Senior EH&S Counsel for General Electric. He supported GE’s Appliances and Lighting Businesses, and was engaged in complex air permitting issues for other GE businesses nationwide. Mr. Haak has also been Associate General Counsel – EH&S for Hexion Specialty Chemicals in Columbus, Ohio, and Senior Regulatory Law Counsel for Owens Corning in Toledo, Ohio. He served overseas in the former Soviet Union (Ukraine) as an Environmental Enforcement Specialist with the American Bar Association’s Central & East European Law Initiative ("ABA/CEELI"). Haak is a frequent lecturer to attorneys, engineers, and environmental professionals on topics concerning federal and state air pollution law. In addition, he has taught as an adjunct faculty member at the University of Central Florida in Orlando and Columbus State in Columbus, Ohio. Since 2005, Haak has taught classes focusing on Air Pollution Law and Occupational Safety and Health Law at The University of Toledo College of Law as an Adjunct Professor.
Biographical Information Catherine Werner, Senior Director Environmental, Health & Safety and Supply Chain Learning GE Appliances, GE Appliance Park, Louisville, KY 40225 Catherine.Werner@geappliances.com Catherine Werner was born in Virginia Beach, Virginia. She attended Washington and Lee University in Lexington, VA and graduated with a bachelor's degree in geology- environmental science in 1990. She entered the field of environmental consulting working for Booz, Allen & Hamilton in the Washington DC area (1990-1992). She then accepted a consulting role working for Radian International, which was later acquired by URS. She relocated to Chapel Hill, NC and later to Albuquerque, NM. During eight years of consulting, Ms. Werner supported both military and commercial clients including GE. She joined GE Aviation in 1998 in Albuquerque, NM as an Environmental Specialist supporting aircraft engine component manufacturing operations. While working for GE, she completed her masters of business administration at the University of New Mexico in 1999 and held multiple site roles including Business Operations Leader, Lean/Six Sigma Leader, and Environmental, Health, and Safety (EHS) Leader. In 2007, Ms. Werner accepted a role with GE Transportation as the EHS Leader for the global locomotive field services organization. In 2011, she expanded her role adding responsibility for nine supply chain sites including one start-up facility and relocated to Erie, PA. In 2013, she accepted her current role as the EHS Leader for GE's Appliances business headquartered in Louisville, KY. Ms. Werner holds both the Certified Safety Professional (CSP) and Certified Hazardous Materials Manager (CHMM) certifications. She served as Treasurer on the national Board of Directors for the CHMM membership organization from 2003-06 and was recognized as a Fellow of the Institute of Hazardous Materials Managers in 2009. She received her CSP in 2011. Ms. Werner enjoys skiing, running, reading, and traveling with her family. She is a beginning piano player and wannabe surfer. Amanda Jennings, Managing Consultant, Trinity Consultants 110 Polaris Parkway, Suite 200, Westerville, Ohio 43085 614.433.0733 Fax: 614.433.0734 ajennings @trinityconsultants.com Ms. Jennings is a Managing Consultant in Trinity’s Westerville, Ohio, office and provides air quality support for various industries in Ohio, including but not limited to, petroleum refining/distribution, chemical manufacturing, surface coating, asphalt processing/shingle manufacturing, and fiberglass and foam insulation manufacturing. She has completed numerous projects over her 13 years of consulting experience ranging from minor and major source state construction permit to install (PTI) or permits to install and operate (PTIO) applications, Fee Emissions Reports (FERs), emissions inventories, Toxic Release Inventory Reports (TRIs), Title V operating permit renewal and modification applications, MACT and GACT general consulting/compliance assistance, and regulatory applicability analyses. Ms. Jennings graduated from Ohio University with a Bachelor of Science Degree in Chemical Engineering.
Environmental Considerations in Acquisitions, Divestitures, & Mergers Session LL March 28, 2018 William H. Haak Haak Law LLC HAAK LAW LLC William H. Haak Tel: 216.772.3532 Environmental, Health & Safety whh@haaklawllc.com Legal and Consulting Services
Introduction • Agenda • Setting the stage • Considerations related to deal structure • Triage and due diligence • The nuts and bolts of permit transfers • Pre-close considerations beyond permits • Post-merger integration – and when does it end? • Questions HAAK LAW LLC William H. Haak Tel: 216.772.3532 Environmental, Health & Safety whh@haaklawllc.com Legal and Consulting Services
At the Outset… • Mergers, divestitures, and acquisitions (“MD&A”) are difficult and stressful on both sides of any deal People ( including you ) are afraid of change - People ( including you ) are worried about displacement - “Synergy” is MD&A code for “reduction in force” - Stay humble, empathetic, and compassionate - • Pre and post-close work is a second full-time job • All companies and all facilities are “different” ”Different” doesn’t always mean “wrong”, but... - Sometimes, “different” is just plain wrong... - Make sure you can appreciate which is which - HAAK LAW LLC William H. Haak Tel: 216.772.3532 Environmental, Health & Safety whh@haaklawllc.com Legal and Consulting Services
Getting Your Footing • A warning on antitrust “gun jumping” Avoid anything that could be perceived as “anti-competitive” - Cannot act as one entity prior to closing date - Be wary of oversharing on either side - • On the Buyer’s side: Understand what the deal team needs from you - Help shape due diligence as much as possible - • On the Seller’s side: Anticipate responding to endless data requests - Provide data in a way that minimizes need for follow-up - Dealing with sophistication gaps (and non-expert consultants) • HAAK LAW LLC William H. Haak Tel: 216.772.3532 Environmental, Health & Safety whh@haaklawllc.com Legal and Consulting Services
Miscellaneous Deal Considerations • EHS implications of deal structures - Mergers - Acquisitions with/without name changes • Will there be a “change in control”? • What about the closing date? - Often tied to antitrust approval (globally) - Could change several times - Dealing with permit transfers requiring advance notice • Managing through communications blackouts... HAAK LAW LLC William H. Haak Tel: 216.772.3532 Environmental, Health & Safety whh@haaklawllc.com Legal and Consulting Services
Buyer’s Side Due Diligence Pitfalls • Not knowing what to ask • Asking for too much • Not receiving what you ask for • Thinking indemnifications will save the day - Tipping baskets, deductibles, and caps - The seller isn’t going down without a fight! • What about “no look” provisions? - Expediency? - Something to hide? - Advice on what to do on Day 1 post-close... HAAK LAW LLC William H. Haak Tel: 216.772.3532 Environmental, Health & Safety whh@haaklawllc.com Legal and Consulting Services
Basic EHS Triage for Buyers • All owned/leased real property Known or suspected contamination and/or clean-ups - All Phase I’s and II’s - • List of facilities and regulatory authorities for each • List of permits and/or exemptions for each facility • OSHA recordable injury rate for each facility • EHS staffing breakdown for entire organization • Environmental and OSHA enforcement matters • “Cats and Dogs” DOT certificate of registration - UST financial assurance mechanisms - HAAK LAW LLC William H. Haak Tel: 216.772.3532 Environmental, Health & Safety whh@haaklawllc.com Legal and Consulting Services
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