Recent Amendments to the CT Transfer Act: A Small Step in the Right Direction for Manufacturers

The state legislature recently amended one of the most onerous environmental laws on the books for owners of manufacturing businesses and facilities in Connecticut: the Transfer Act. The changes, which took effect on October 1, 2019, were intended to relieve some of the burden felt by the regulated community, but many manufacturers will still be left bearing the burden of the Transfer Act’s arduous requirements.

In general, the Transfer Act applies to the “transfer of an establishment.” An “establishment” includes (among other triggers) any real property at which, or business operation from which, on or after November 19, 1980, there was generated more than 100 kilograms (220 pounds, or roughly half of a 55-gallon drum of liquid) of hazardous waste in any one month. The recent amendments to the Transfer Act changed the definition of an “establishment” to exclude certain properties and businesses that were historically snared by the Transfer Act’s far-reaching net by excluding from the calculation of hazardous waste generation any waste generated solely as a result of: 

• The one-time generation of hazardous waste or the first time such waste was generated since the last Transfer Act filing;
• The removal of materials used to maintain or operate a building;
• The removal of unused chemicals or materials as a result of the emptying or clearing out of a building, provided such removal is supported by facts reasonably established at the time of such removal; and
• The complete cessation of a business operation, provided the hazardous waste is removed not later than 90 days after such cessation and such cessation is supported by facts reasonably established at the time of such cessation.

In addition, the amendments shortened the amount of time that DEEP has to audit final closeout reports (i.e., Verifications) from three years to one year. Because it is recognized that there is more work to be done, the recent amendments also required the legislature to create a working group to further examine the Transfer Act and recommend further legislative changes by February 1, 2020. Stay tuned!

While the recent amendments are intended to be a benefit to the regulated community and help limit “clean” businesses and properties from falling into the Transfer Act, the changes are unlikely to have a significant impact on companies that regularly generate hazardous waste in amounts that could be in excess of 100 kilograms in a single month. While regulatory changes also are being proposed by DEEP (with respect to the cleanup standards applicable to Transfer Act sites, known as the Remediation Standard Regulations), those proposed changes are in many instances both a burden and a benefit.

Ultimately, when it comes to compliance with environmental laws generally and the Transfer Act in particular, the devil is in the details. As a result, Parties dealing with the Transfer Act (either in the context of a corporate transaction and/or in connection with ongoing investigation/remediation requirements) are best served when working with qualified and knowledgeable environmental lawyers and consultants.