United States: 2019 Connecticut Transfer Act Amendments–The Legislature's Work Is Never Done

Gov. Ned Lamont recently signed into law Public Act No. 19-75 (P.A. 19-75), making several significant changes to the Connecticut Transfer Act (C.G.S. §§ 22a-134 et seq.) (the Transfer Act). The changes address certain concerns of property owners, developers, realtors, lenders and others facing or otherwise involved in potentially lengthy and costly environmental investigations and cleanups when there is the transfer of real property or business operations in Connecticut that meet the definition of an Establishment as that term is defined at C.G.S. Section 22a-134(3) of the Transfer Act.

BACKGROUND

Enacted in 1985, the Transfer Act has at least two broad goals: provision for the disclosure of environmental conditions prior to the transfer of an Establishment, and creation of a framework and time frame for the post-transfer investigation and cleanup of environmental conditions associated with activities at or of the Establishment. There are and have been actual and perceived unintended or undesirable consequences of the Transfer Act. These consequences have hindered the transfer and, even when there is a transfer, the development or redevelopment of environmentally challenged properties, important to returning these properties to productive reuse. An example of such consequences is the application of the Transfer Act to transactions that, but for the one-time generation of hazardous waste or other nonroutine generation of hazardous waste, would not fall within the definition of a transfer of an Establishment and therefore would not trigger the Transfer Act. Of note, since its enactment in 1985, the Transfer Act has been amended seven times, and there are now 28 exceptions to the definition of a transfer triggering compliance with the Transfer Act.

The Transfer Act requires that the owner of a property or a business operation that is an Establishment file with the Connecticut Department of Energy and Environmental Protection (DEEP) when the Establishment undergoes a change in ownership. At or prior to the transfer and in this filing, one of the parties associated with the transaction must certify to the DEEP that they will take on the responsibility for the investigation and, as necessary, cleanup of the Establishment. Until the October 1, 2019 effective date of P.A. 19-75, the Transfer Act defines an Establishment as any real property or business operation (1) at or from which on or after November 19, 1980, there was generated more than 100 kilograms of hazardous waste (roughly the equivalent of half of a 55-gallon drum) in any one month, except when the waste was generated in connection with the remediation of polluted soil, groundwater or sediment, or the removal or abatement of building materials; (2) where hazardous waste generated at a different location was recycled, reclaimed, reused, stored, handled, treated or disposed of; or (3) where, on or after May 1, 1967, a furniture stripping operation, dry cleaner or vehicle repair facility existed.

TRANSFER ACT CHANGES

Definition of an Establishment

On June 28, with Lamont's signature, P.A. 19-75 became law. Effective October 1, 2019, Section 1 of this Act amends the definition of an Establishment by providing additional exclusions for properties and business operations that otherwise would have an obligation to comply with the Transfer Act in the event of a covered transfer. By operation of P.A. 19-75, a real property or business operation that generated more than one hundred kilograms of hazardous waste in any one month since November 19, 1980, will no longer be an Establishment where this generation was solely as result of either

  • the one-time generation of hazardous waste in any one month, where this generation was a result of either the property or business operation's first-time generation of hazardous waste or this one-time generation took place after the last time an owner of the property or business operation was required to submit a Transfer Act form; or
  • one or more of the following:
    • The removal or abatement of building materials or the removal of materials used for maintaining or operating a building;
    • The remediation of polluted soil, groundwater or sediment;
    • The removal of unused chemicals or materials as a result of the emptying or clearing out of a building, where the removal is supported by facts reasonably established at the time of such removal; or
    • The complete cessation of a business operation, where the hazardous waste is removed no later than 90 days after this cessation and the cessation is supported by facts reasonably established at the time of the cessation.

Audit Time Frame

Another important change to the Transfer Act under P.A. 19-75 is the significant shortening of the time frame for the DEEP's commencement of an audit following the filing with the DEEP of the Licensed Environmental Professional's final verification that the Establishment has been fully investigated and remediated (Verification). For Verifications filed on or after October 1, 2019, Section 2 of P.A. 19-75 shortens from three years to one year the time frame for the DEEP to commence an audit of a Verification. P.A. 19-75 also clarifies that any DEEP audit commenced either within three years of the filing of a Verification prior to October 1, 2019, or within one year of the filing of a Verification on or after October 1, 2019, needs to be completed by the DEEP within three years of the filing of the Verification. The DEEP can extend the period for completion of an audit when the DEEP has requested and is awaiting additional information. The Transfer Act also provides limited circumstances under which the outside time frame for the DEEP's commencement of an audit will be extended, e.g., where a Verification relies on the use of materially inaccurate, erroneous or misleading information; post-Verification monitoring has not been completed or a required environmental land use restriction has not been recorded; or the DEEP concludes, even with the completion of remediation, that there is a substantial threat to public health or the environment.

THE TRANSFER ACT WORKING GROUP

Leading up to the passage of P.A. 19-75, there were proposals and discussions of additional revisions to the Transfer Act that are not addressed in Sections 1 and 2 of P.A. 19-75. In Section 3 of P.A. 19-75, which became effective upon passage, the Legislature provides for the convening by the chairpersons of the Connecticut General Assembly Commerce and Environment Committees of a Transfer Act working group to examine and develop recommendations regarding further legislative changes to the Transfer Act. P.A. 19-75 requires that the Transfer Act working group meet at least monthly and, on or before February 1, 2020, submit to the Commerce and Environment Committees its report of its findings and recommendations for further legislative changes to the Transfer Act. The Transfer Act working group will terminate upon its submittal of the report or February 1, 2020, whichever is later.

LOOKING AHEAD

P.A. 19-75 is the latest legislative development in the effort of multiple constituencies to find or, as importantly, ensure in practice the proper balance between environmental disclosure with a mechanism to identify and address environmental conditions on the one hand, and regulatory certainty, predictability and priorities with benefit to both the economy and the environment on the other. With four months of the 2019 Transfer Act revisions behind them, next session's Legislature may very well pass additional legislative changes, including changes that will be among those recommended to the Commerce and Environment Committees by the Transfer Act working group.

Click here to read further Insights from Day Pitney

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions