Fixed-Price Cleanups: Using Captives and Other Cost Cap Alternatives
Lessons From Accomplished FPCs, When and Why to Use CCAs, and the Mechanics of Using a CCA

Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Environmental
- event Date
Tuesday, January 11, 2022
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will review the legal mechanics and technical prerequisites of entering fixed-price cleanups (FPCs) in the wake of Commercial Insurers' 2011 exit from the cost cap insurance market. It is designed for counsel for property owners and prospective owners (including brownfield developers), remediation contractors, cost recovery litigators, PRP groups, governments, and bankruptcy debtors and creditors, all of whom share an interest in quantifying cleanup costs in a manner that is accurate, efficient, and will hold over time. The panel will examine the use of cost cap alternatives (CCAs) using FPCs and other insurance products approved and used to support FPCs since the 2011 demise of the commercial cost cap market.
Faculty

Ms. Cervino represents her clients in a variety of environmental regulatory and transaction issues. She has represented private equity firms and developers in environmental due diligence and environmental aspects of transactions, risk mitigation and insurance coverage. She has counseled many companies on environmental compliance and cost recovery matters. Ms. Cervino has served as Senior Vice President and General Counsel for Environmental Waste Management Associates (Parsippany, N.J.), an environmental consulting and remediation firm and its related companies. She has negotiated dozens of insured fixed price remediation contracts and environmental insurance policies and associated claims.

Mr. Cantor has combined his dual training and experience as an environmental lawyer and a litigator into a broad-based practice focused on resolving disputes concerning environmental liabilities, as well as proactively managing and reducing potential liabilities. Mr. Cantor has significant experience in environmental risk transfer transactions, including the drafting and negotiating of risk transfer agreements and related environmental insurance products.

Mr. Duus’ practice includes handling the environmental aspects of the firm’s numerous real estate and commercial transactions. This includes representing clients who are buying, selling, leasing and financing real estate, with an emphasis on managing the issues arising from properties contaminated by, or potentially contaminated by, hazardous substances. He also has extensive experience assisting clients who are involved in the purchase or sale of stock or assets, including mergers and acquisitions. Mr. Duus has assisted numerous clients with obtaining and negotiating environmental insurance, handling site cleanup, obtaining development permits, complying with environmental regulations, advising on alternative energy projects, and providing expert witness testimony.
Description
Environmental cleanups come with many risks, including the risks of cost overruns and other exposures. Until 2011, the majority of FPCs relied on cost cap insurance. When cost cap coverage dried up in 2011, a CCA was invented out of necessity. It has successfully met even the most rigorous forms of review and it carries many advantages over traditional cost caps insurance products.
Counsel should understand the advantages and disadvantages of using CCAs and when to reduce cleanup cost uncertainties (and, typically, also cleanup costs) that may create a hurdle to reaching an agreement regarding the property or transaction involved.
Listen as our authoritative panel examines the use of CCAs to support FPCs, including when and why to use CCAs. The panel will also discuss the mechanics of CCAs and lessons learned from FPCs, as well as offer guidance for using CCAs in FPCs.
Outline
- Use of CCAs to support FPCs
- Why use
- When to use
- How to use
- Advantages and disadvantages
- Mechanics of CCAs
- Lessons learned from completed FPCs
- Guidance for using CCAs in FPCs
Benefits
The panel will review these and other key issues:
- What are the lessons from completed FCPs?
- What are the challenges and pitfalls of using CCAs in FPCs?
- What are best practices for leveraging CCAs in FPCs?
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