Skip to main content

Nixon Peabody LLP

  • People
  • Capabilities
  • Insights
  • About
Trending Topics
    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    Practices

    View All

    • Affordable Housing
    • Community Development Finance
    • Corporate & Finance
    • Cybersecurity & Privacy
    • Entertainment & Media
    • Environmental
    • Franchising & Distribution
    • Government Investigations & White Collar Defense
    • Healthcare
    • Intellectual Property
    • International Services
    • Labor, Employment, and Benefits
    • Litigation
    • Private Wealth & Advisory
    • Project Finance
    • Public Finance
    • Real Estate
    • Regulatory & Government Relations
    Industries

    View All

    • Aviation
    • Cannabis
    • Consumer
    • Energy
    • Financial Services
    • Healthcare
    • Higher Education
    • Infrastructure
    • Manufacturing
    • Nonprofit Organizations
    • Real Estate
    • Sports & Stadiums
    • Technology
    Value-Added Services

    View All

    • Alternative Fee Arrangements

      Developing innovative pricing structures and alternative fee agreement models that deliver additional value for our clients.

    • Continuing Education

      Advancing professional knowledge and offering credits for attorneys, staff and other professionals.

    • Crisis Advisory

      Helping clients respond correctly when a crisis occurs.

    • DEI Strategic Services

      Providing our clients with legal, strategic, and practical advice to make transformational changes in their organizations.

    • eDiscovery

      Leveraging law and technology to deliver sound solutions.

    • Environmental, Social, and Governance (ESG)

      We help clients create positive return on investments in people, products, and the planet.

    • Global Services

      Delivering seamless service through partnerships across the globe.

    • Innovation

      Leveraging leading-edge technology to guide change and create seamless, collaborative experiences for clients and attorneys.

    • IPED

      Industry-leading conferences focused on affordable housing, tax credits, and more.

    • Legal Project Management

      Providing actionable information to support strategic decision-making.

    • Legally Green

      Teaming with clients to advance sustainable projects, mitigate the effects of climate change, and protect our planet.

    • Nixon Peabody Trust Company

      Offering a range of investment management and fiduciary services.

    • NP Capital Connector

      Bringing together companies and investors for tomorrow’s new deals.

    • NP Second Opinion

      Offering fresh insights on cases that are delayed, over budget, or off-target from the desired resolution.

    • NP Trial

      Courtroom-ready lawyers who can resolve disputes early on clients’ terms or prevail at trial before a judge or jury.

    • Social Impact

      Creating positive impact in our communities through increasing equity, access, and opportunity.

    • Women in Dealmaking

      We provide strategic counsel on complex corporate transactions and unite dynamic women in the dealmaking arena.

    1. Home
    2. Insights
    3. Videos
    4. Buying a food & beverage business without environmental health & safety liability

      Videos

    Buying a food & beverage business without environmental health & safety liability

    Nov 17, 2021

    LinkedInX (Twitter)EmailCopy URL

    By Alison TorbittBetsy Mitton

    Best practices for navigating environmental health and safety (EH&S) compliance risks when buying a food and beverage business.

    The food and beverage industry is ripe for growth. Cultural shifts and consumer trends are fueling new opportunities in this arena, and companies are hoping to capitalize on related markets. But acquiring a food and beverage business doesn't come without risks, and potential liability.

    In our latest edition of the Nixon Peabody & WSP webinar series, we discuss best practices for navigating environmental health and safety (EH&S) compliance risks when buying a food and beverage business.

    It's important that buyers evaluate the real property and the operations they're purchasing, and plan proactively for associated EH&S risks. Ideally, we're gathering proposals for a Phase I environmental site assessment from the get-go — typically the same day after our client sends us a Letter of Intent, draft proposed purchase document, or asset sale agreement. That Phase I environmental site assessment forms the bedrock of EH&S due diligence. At a minimum, this assessment identifies potential or existing environmental contamination liabilities related to the real property. It's a critical prerequisite for various "innocent" liability defenses. In other words, this assessment is the first step toward ensuring the buyer isn't unwittingly held jointly and severally responsible for the cleanup of a previously contaminated property — such clean-ups can exceed seven figures quickly.

    The Phase I environment site assessment focuses on several factors. Licensed environmental professionals tour the property and survey current or previous operations that may have an impact on the environment. They also review relevant permits and documents. Sources of concern can include lead, asbestos, peeling paint, or — what we're seeing a lot of lately — vapor intrusion concerns, where chemicals from the soil or groundwater migrate to indoor air above the site.

    In our experience, these assessments can sometimes make or break deals: We've seen acquisitions dissolve after the Phase I report reveals previously undisclosed underground storage tanks, significant environmental compliance issues, and extensive groundwater contamination. Some buyers choose to pair these Phase I reports with limited environmental and health and safety compliance reports — sort of a mini-audit, which allows buyers to gain insights on operations beyond the real property concerns that Phase I focuses on.

    We'll communicate any potential concerns that arise from the assessment with clients promptly and upfront. When we detect recognized environmental conditions like vapor intrusion, we may initiate a Phase II environmental site assessment, which is an invasive investigation with samples taken and analyzed, and often requires renegotiation of the due diligence window with the seller.

    We may also incorporate any potential issues into the purchase or asset deal. For example, we can create diligence documentation requests, pre-closing and post-closing deliverables, and environmental escrow accounts or purchase price reductions — all of which minimize risk for and shift liability away from the buyer. We can also evaluate where self-disclosure protections under the Environmental Protection Agency (EPA) Audit Policy may minimize potential liability post-closing.

    It's important to note that the Phase I Environmental Site Assessment requirements are subject to change. Most recently, the American Society for Testing and Materials (ASTM) approved a slew of revisions that bring the Phase I assessment process up to speed with modern science and laws.. The updated language clarifies the due diligence window. It also addresses emerging contaminants — such as Per- and Polyfluoroalkyl Substances (PFAS) — and their potential inclusion in Phase I assessments. When approved by the EPA, the updates will bolster Phase I assessments, potentially offering greater options to protect buyers. 

    We're excited to continue guiding buyers through the environmental safety framework of food and beverage businesses. Please reach out to either of us — Alison Torbitt or Betsy Mitton — with any questions you might have.

    Practices

    Environmental

    Industries

    Food, Beverage & Agribusiness

    Insights And Happenings

    • Alert

      It’s official — ASTM E1527-21 adopted by USEPA!

      Dec 15, 2022
    The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

    Subscribe to stay informed of the latest legal news, alerts, and business trends.Subscribe

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    • Cookie Preferences
    • Privacy Policy
    • Terms of Use
    • Accessibility Statement
    • Statement of Client Rights
    • Purchase Order Terms & Conditions
    • Nixon Peabody International LLC
    • PAL
    © 2025 Nixon Peabody. All rights reserved