March 1999 Volune 12 No3 - Utah State Bar

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by Steven J Christiansen i. PURPOSE AN NEED FOR ENVIRONMENTAL DUE DILIGENCE A. Rise of Environmenta Regulatory Requirements. Environmental laws, reguations and requirements are becom- ing increasingly complex. For example, the 1996 edition of Title 40 of the Code of Federal Regulations (C.ER.) is now com- prised of 17 volumes of rules, regulations and technical appendices. As such, Title 40 has far surpassed the six volumes of Tile 32 of the C.ER. (National Defense) and rivals the nie- teen volumes of Title 26 (Internal Revenue). With this great volume and complexity of environmental regulation, owners and operators of industrial operations face an ever increasing chalenge to maintain compliance. B. Nature of Industrial Operations. "Industrial operations" are those enterprises associated with manufacturing or produc- tion of certain basic, and essential, products including metals, chemicals, refined petroleum products, electricity, automobiles, cement and pulp & paper. Tyicaly, industrial operations can generate signifcant amounts of by-products and pollution. Accordingly, industrial operations are the particular objects of comprehensive and complex federal, state and local environmental regulatory requirements. C. Interests of Paries Involved with a Transaction for the Purchase or Sale of an Industrial Operation. When partes are contemplating the purchase and sale of industrial operations, a host of business, legal and practical issues arise which must be carefuy identied and addressed. In the current regulatory climate, environmental issues may very well emerge as some of the most important issues in such a transaction. In the context of a transaction, the parties tyicaly fal into two groups - those who own the industrial operations which are to be sold and those who are contemplating purchasing, leasing or financing the purchase of the operations. The interests of these two groups of transaction parties is dierent because environmental laws treat current owners dierently than prospective purchasers, lessees and lenders. Thus, parties to such a transaction must investigate and identif the relevant environmental requirements, problems and issues. In addition, such parties must understand what their legal responsibilties might be in order to appropriately address and manage these responsibilties in the context of an industrial transaction. D. Environmenta Due Diligence. The concept of environmental due dilgence has arisen out of the traditional concept of due digence in commercial transactions. During the last 25 years as environmental laws and regulations have become increasingly complex and potential liabilties have become more signicant, environmenta due dilgence has become an absolute necessity in transactions involving indus- . trial facilties. In broad terms, environmenta due dilgence protects the paries to such a transaction by assisting the buyers and sellers (and potential lenders) in identifng potential environmental problems in the form of compliance issues, permitting deficiencies, contamnation remediation responsibil-' ities, and pollution confcts with adjoining landowners. ~lan~arJ!J U H i~ ßì i.
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Page 23 and 24: Legal Community Kicks Off Campaign
Page 25 and 26: A Brief Overview of the New Utah Ba
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Page 37 and 38: Technolo Review' " il l" /1Jii lW (
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March 1999 Volune 12 No3 - Utah State Bar

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