FIN 47, Environmental Financial Reporting Risk TM and Brownfields

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1 FIN 47, Environmental Financial Reporting Risk TM and Brownfields 9 th Annual Florida Brownfields Conference October 25, 2006 Miami, FL Donna H Sandidge, Managing Director Nashville, TN Overview Dramatic paradigm shift in accounting landscape Fair Value Measurement Implications for environmental liabilities Auditor Report Card s Environmental Financial Reporting Risk TM ARO survey results Managing Environmental Financial Reporting Risk TM 2 1

2 Major Paradigm Shift in Accounting Landscape Convergence of global accounting standards Started October 2002 and in full swing MOU between IASB and FASB ( ) Principles based approach with consistency on a global basis Canadian GAAP will converge into IFRS by US GAAP convergence moving more slowly; working joint projects with IASB Joint IASB/FASB project on the conceptual framework ongoing Objective is Market Driven financial statements Emerging preference for using Fair Value Measurement as valuation technique for financial reporting IASB International Accounting Standards Board FASB Financial Accounting Standards Board AcSB Accounting Standards Board (Canadian) IFRS International Financial Reporting Standards GAAP Generally Accepted Accounting Principles HB Handbook of Canadian Accounting Standards 3 Synopsis of FAS 143 Accounting for Asset Retirement Obligations (AROs) FAS 143 (2002) Recognizing today, future obligations & costs associated with retirement of tangible long lived assets includes environmental, closure/post closure, reclamation, and other site decommissioning costs Obligations arising from acquisition, construction or normal operations of assets Obligations can be legal, statutory, contractual, constructive obligation, promissory estoppel Retirement means other than temporary removal from service - by sale, abandonment, recycling or disposal; not temporary idling Measurement technique is Fair Value Reality: standard was not being consistently applied: - No consistency in what is an ARO - no legal obligation to retire asset ; legal obligation only upon retirement - timing and/or method of settlement uncertain - not enough information to estimate 4 2

3 Synopsis of FIN 47 Accounting for Conditional Asset Retirement Obligations FIN 47(2005) clarified that conditional AROs are liabilities conditional AROs exist even where timing and settlement method are conditional upon future event, that may or may not be within control of entity clarified ability to reasonably estimate reinforced that measurement technique is Fair Value reclassification of FAS 5 or HB 3290 accruals may be necessary clarifies that undue cost and effort not a defense for non-accrual emerging issues normal vs. improper operations, legal obligations associated with retirement, indeterminate useful life, duty to investigate, level of effort required to measure, materiality (See ABA Special Committee on Environmental Disclosure Newsletter July 2006). 5 Synopsis of FAS 141-R Accounting for Business Combinations Exposure Draft FAS 141-R and IFRS 3 Joint IASB/FASB project - various phases Planned effective date 2008 Applies to liabilities acquired during acquisition Applies to single property or business entity Again, measurement technique is Fair Value IASB reinforcing concept of ability to estimate - Except in extremely rare cases, an entity will be able to determine a reliable measure of liability Necessitates changes to the environmental due diligence process Buyers will gain valuable pricing concessions from ill-prepared sellers M&A participants likely to be early adopters Requires changes in how environmental liabilities are valued 6 3

4 What is Fair Value Measurement? Synopsis of FAS 157 Fair Value Measurements Just released 9/15/06 IASB issued Invitation to Comment (2005); reviewing comments Fair Value defined as the amount that an entity would rationally pay to settle the present obligation or to transfer it to another party. Valuation technique incorporates uncertainty: - Potential methods and timing of settlement - Final amount of settlement - Expected cash flows - Probabilities assigned to methods and timing of settlement - Market risk premium - Inflation rates - Credit adjusted risk-free discount rate Measurement hierarchy based on general principle that an estimate of fair value should be based on the results of valuation techniques that maximize market inputs and minimize entity specific inputs 7 What is the Fair Value Hierarchy? Best Evidence Level 1 Level 2 Quoted or bid prices for identical assets or liabilities in active markets Quoted or bid prices, or market inputs that reflect quoted prices for similar assets or liabilities in all markets. Market inputs other than quoted prices that are directly observable Highest Level Required Market inputs not directly observable but that are corroborated by other market data through correlation or by other means. Level 3 Entity inputs derived through extrapolation or interpolation but that are not corroborated by other market data. 8 4

5 Valuation Hierarchy Market quotes for identical liabilities Market quotes for similar liabilities Fair Value Measurement FAS 157 Expected (present) value Most likely value Range of values Known minimum value FAS 5 & FIN 14 ASTM E Major Implications for Environmental Liabilities Under FAS 143, FIN 47 and FAS 141-R Recognition - No longer a probability threshold - Pollution condition + obligation = liability - Liabilities may arise before claims asserted - Requires new audit procedures and processes - More liabilities will be recognized 10 5

6 More Liabilities, Higher Estimates Accounting Oh, that three billion dollars. 11 Major Implications for Environmental Liabilities Under FAS 143, FIN 47 and FAS 141-R Recognition - No longer a probability threshold - Pollution condition + obligation = liability - Liabilities may arise before claims asserted - Requires new audit procedures and processes - More liabilities will be recognized Unlike FAS 5, uncertainty factored into valuation; not the recognition Uncertainty drives values higher Information reduces uncertainty More robust and defensible estimates are required Mothballing of surplus contaminated properties is much more visible and will no longer continue to be a viable risk management strategy Active Market exists now for quoted or bid prices for these liabilities and transfer to third parties e.g. liability transfer or buyout marketplace 12 6

7 Major Implications for Environmental and Directors and Officers Liabilities D&O insurers are concerned, because: An increase in financial uncertainty of environmental liabilities = greater claims potential and severity increase in volatility of earnings increase in the cost of capital (Risk Premium) increase stress on key financial ratios - ROA, ROE, Debt/Equity could impair debt covenants could impair financial test eligibility for financial assurance; and reduce cash flows due to unknowns Little consistency in financial reporting between and among industries increases the uncertainty Therefore: greater uncertainty = greater risk greater risk (real or perceived) = higher cost of capital and lower firm value lower firm value = greater claims potential and severity 13 Environmental Financial Reporting Risk TM s ARO Survey Results 14 7

8 Survey results as of the latest reporting period As a result of specific accounting for asset retirement obligations Two SEC comment letters specific to AROs Twelve restatements Fortune 500 public company announced pending SEC enforcement action in 8K with respect to environmental liabilities individual responsible for setting reserves under investigation Eight delayed 10-K filings Nine reported material weaknesses in internal control over financial reporting Numerous unreported control deficiencies Indication of impairment of debt covenants Downgrading of credit ratings Financial assurance eligibility being effected by stress on key ratios Dramatically inconsistent disclosure within industries Dramatic differences in time and effort 15 FIN 47 - Reporting a year later Preliminary results Significant disparity Impact of adoption ( catch up ) - $225,000 - $251 million - $.01 - $.26 per share Numbers - Historical approach to SFAS Interpretation of materiality thresholds for testing assets; - Conclusions as to whether an identified ARO is estimable Resources - 6 5,000 man hours on FIN 47 Implementation - 35% of time researching Interpretation - 41% of time identifying AROs - 23% of time spent measuring value of AROs 16 8

9 FIN 47 - Reporting a year later Preliminary results Utilities Industry Conditional Asset Retirement Obligations # of Cos. LOW $$ HI $$ # of NMA 111 $1.5M $619M 21 # of No Mention of FIN 47 8 Mining 42 $2.0 M $18 M Automotive 34 $1.2 M $251 M 8 13 Chemicals 66 $.6M $39M Steel 36 $28M $189M 5 11 Pulp & Paper 39 $3.4M $57M 8 16 Industrial Manufacturing & Capital Goods 130 $.05 $95M Semiconductor / Telecomm 187 $4.0 M $66M Oil & Gas 110 $.6M $147M FIN 47 - Reporting a year later Preliminary results Quantitative Disclosures Effect of change in accounting policy - Effect known and quantified - Effect known but not quantified specifically facilities - Still evaluating effect - No material effect - No mention at all! Ability to reasonably estimate - Use of this exemption - specifically relating to facilities or fixed assets - Indeterminate Useful Life - Limited or no explanation of what and why 18 9

10 FIN 47 - Reporting a year later Preliminary results Non-quantitative disclosures No identification of conditions evaluated Identification of limited scope of conditions: ACM, PCB transformers, utility poles, railroad ties, USTs, cell towers only Lease Obligations Identification of broad scope of conditions Ash ponds, evaporation ponds, solid waste management units, environmental restoration, reclamation, closure/post closure, corrective action units, owned Superfund sites, light ballasts, mercury switches General non-conformance with SFAS 143 disclosure requirements Inadequate disclosures for GAAP Lack of reconciliation tables Limited explanation of assets used for settling AROs 19 Auditor Report Card 20 10

11 PCAOB and SEC Observations of Audit Deficiencies 2005 Round of PCAOB inspections Two of Big Four Accounting Firms have many deficiencies and their evaluations of companys financials may be questionable Significant failure in identifying errors in the application of GAAP Problems with the audits were big enough to suggest that the accounting firms failed to obtain sufficient competent evidential matter to support their opinion on clients financial statements. Remaining two big Four had deficiencies in 6% and 25% of audits Deficiencies also exist in smaller Tier 2 firms 21 Auditors are people too! 80% are failure of auditor to gather sufficient audit evidence, review valuations and question management representations 50% are auditors failing to apply GAAP pronouncements or applying them incorrectly 60% are auditors failing to exercise due professional care and exert the appropriate level of professional skepticism 40% are auditor over reliance on inquiry as a form of audit evidence 36% are auditor not obtaining adequate evidence related to evaluation of significant management estimates Source: Fraud Related SEC Enforcement Actions against Auditors study conducted by North Carolina State University,,University of Tennessee and Kennesaw State University 22 11

12 Managing Environmental Financial Reporting Risk TM 23 Manage the Underlying Risk Issues Stronger due diligence around environmental indemnities, guarantees, liabilities and asset retirement obligations and their valuations Greater use of third parties to develop, evaluate and validate processes and valuations Development of stronger, more robust and transparent documentation Increased investigation and use of risk control, risk financing and liability transfer techniques to eliminate, minimize or cap uncertainty Stronger disclosure of environmental insurance and liability management techniques being used within financial filings Reevaluation of their environmental and D&O risk financing programs to respond to these emerging risks 24 12

13 Manage the Underlying Risk Issues Risk Management Evaluation and Execution Risk Avoidance Risk Retention with or without Mitigation Hedging Risk Transfer Exit Risk Area Capital Market Products Interest / Inflation Rate Derivatives Cat Bonds Contingent Capital Financing Solutions Reporting & Risk Process Improvement System Upgrade Due Diligence Unfunded / Funded Reserve (Self Insurance) Fixed Price Contracts Performance Guarantees Captive Insurance Company Property Transfer Transaction Liability only Transfer Insurance Environmental D&O 25 Contact Donna H. Sandidge, Managing Director Inc. Environmental Practice Corporate Risks and Liabilities 1801 West End Avenue, Suite 1500 Nashville, Tennessee Telephone: (615) Mobile: (615) Fax: (615) donna.h.sandidge@marsh.com 26 13