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Updated: October 19, 2020 Other Voices

Transfer Act changes leave unfinished business

HBJ File Photo The State Capitol in Hartford
By Andrew Davis, Aaron Levy, Matthew Ranelli & Alfredo Fernandez

The notorious Connecticut environmental law, the Transfer Act, is broken and a hurdle to investment, redevelopment and even the cleanup of contaminated sites.

Thankfully, the General Assembly during a recent special session passed amendments (SS PA 20-9) that include several long-needed fixes.

However, these changes, while helpful, do not immediately address the fundamental problems with the Transfer Act.

To do that, the amendments included a framework for a tiered release-based program that will eventually replace the Transfer Act, i.e., one based on an actual spill rather than the “establishment” status and transfer of a site (or business).

Conceptually, the shift to a release-based program is welcome and overdue, but the release-based amendments reflect a “ready, shoot, aim” approach and haven’t been fully vetted with, nor gained broad-based acceptance by, the regulated community; therefore, the devil will be in the details for the rollout.

There is much work to do and it will require significant involvement from real estate, legal and technical stakeholders with good peripheral vision and experience with other states’ release-based programs.

The ultimate success of replacing the Transfer Act will be contingent upon effective integration of such changes with other aspects of the Department of Energy & Environmental Protection’s (DEEP) evolving regulatory programs and proper agency staffing/budget.

While we have lived with the Transfer Act for 35 years, most stakeholders will be happy to see it go.

Embracing a release-based program will move Connecticut to a remedial program more aligned with the rest of the country and should level the competitive field for investment and spark redevelopment if properly implemented and staffed.

Ultimately, to develop a program that provides the necessary and appropriate environmental protections while accounting for practical economic and business realities, there must be input from a diverse stakeholder group.

To that end, the amendments establish a working group co-chaired by commissioners from DEEP and the Department of Economic and Community Development and chairpersons and ranking members of the Environment and Commerce committees, transactional environmental attorneys, commercial real estate brokers and others.

The working group will meet monthly until the regulations are adopted.

DEEP will also need to convince the General Assembly to adequately fund the new program to ensure sufficient, well-trained staff. No matter how good the intentions and design of the program, it cannot succeed if DEEP does not have the resources to interact with the regulated community and timely process release notifications and close out reported spills.

It also will be critical to integrate the development of a release-based program with other aspects of DEEP’s regulatory program.

Even if everyone agrees the Transfer Act should be replaced (which it should be), implementing a release-based program will present significant challenges that will need to be addressed.

DEEP and other stakeholders will need to work cooperatively to develop a program that appropriately protects human health and the environment but also embraces the realities of our business community and economy.

Andrew Davis, Aaron Levy, Matthew Ranelli & Alfredo Fernandez are attorneys at Shipman & Goodwin LLP.

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