Is Connecticut’s Transfer Act Going Away Anytime Soon? No, But Progress Is Being Made

The Connecticut General Assembly passed Public Act 20-09 in the fall of 2020 with the promise that the Connecticut Transfer Act would be abolished in favor of a released-based, rather than a transaction-based, remediation program.  Under Public Act 20-09’s terms, once the Connecticut Department of Energy and Environmental Protection (DEEP) adopts release-based regulations pursuant to section 22a-134tt of the General Statutes, the Transfer Act will cease to apply to future transactions in Connecticut; only those  sites  already in the Transfer Act program will need to be remediated in accordance with the Transfer Act’s requirements.

Public Act 20-09 also required the DEEP and the Department of Economic and Community Development (DECD) to jointly convene a Working Group to assist DEEP in developing such regulations.  That Working Group, consisting of volunteers from a variety of environmental stakeholders, has been meeting with DEEP and DECD for more than three years to develop a regulatory framework for the new release-based program.  On December 29, 2023, DEEP released its first draft of the new regulations to the Working Group for the Working Group's review and comment.  While the demise of the Transfer Act is still likely more than a year away, this is a crucial next step in achieving the goals of Public Act 20-09.

Acknowledging the hard work that members of the Working Group put in over the last three years, the General Assembly amended section 22a-134tt to require that DEEP provide a draft of any release-based cleanup regulations (RBCRs) to the members of the Working Group at least sixty days prior to beginning the formal regulatory approval process.  The purpose of that provision was to allow the Working Group to review the draft regulations for thirty days and provide feedback on the draft regulations to DEEP.  DEEP and DECD are also required to have a full Working Group meeting prior to sending draft regulations out for formal approval.

With its release of the draft regulations to the Working Group, DEEP has kicked off this process.  Recognizing that a 190-page regulatory package (with additional attachments on top of that) will take some time to analyze, DEEP has adopted a slightly more flexible schedule than the statute requires.  Specifically, DEEP has proposed the following schedule for this round of review of the draft regulations:

• Accept written comments from the Working Group’s members – until February 6, 2024
• Discuss those comments at two Working Group meetings – February 13 and March 12, 2024
• Post a notice of intent to adopt the RBCRs – no earlier than April 1, 2024

DEEP has indicated that more details regarding the process for accepting, discussing, and considering feedback on the draft of the RBCRs will be provided at the next Working Group meeting, scheduled for January 9, 2023.

Some Key Features of the Draft RBCRs

Because the RBCRs are likely to go through substantial revision during both the Working Group review phase and the subsequent standard notice-and-comment rulemaking procedures under Connecticut law, a detailed review of the RBCRs would not be helpful at this time.  However, some salient features of the regulations bear mentioning.  These include:

• Emergent releases, such as spills, will have to be reported to DEEP and remediated in accordance with the RBCRs. This will be similar to how spills are dealt with under the current regulatory environment.
• Existing releases, such as those releases that are identified from environmental testing and subsurface investigations, will also need to be reported to DEEP and remediated in accordance with the RBCRs. This is a substantial departure from the current regulatory environment, where the mere existence of historical contamination does not, in and of itself, require reporting to DEEP or remediation.
• A new class of environmental professionals, known as “permitted environmental professionals” or “PEPs” will be created to certify release records. The PEPs will have more limited powers than “licensed environmental professionals” or “LEPs,” which will continue to have the ability to verify that releases have been fully remediated in accordance with applicable environmental regulations.
• The Significant Environmental Hazard program will be replaced by the RBCRs as well.
• Immediate remedial actions will need to be taken for emergent releases as well as “significant existing releases.”
• Sites that qualify under one of the state's brownfield remediation programs will not be subject to the RBCRs.
• Ordinary releases will be assessed and placed into one of four tiers, depending on the potential for environmental harm. The level of remediation will be dependent on which tier a release is placed in.  Fees of $500 to $3,000 will need to be paid to DEEP for oversight, depending on which tier a release is placed in.
• Much of the substantive remediation criteria (such as direct exposure criteria, pollutant mobility criteria, etc.) that are found in the current Remediation Standard Regulations (RSRs) have been incorporated wholesale into the RBCRs, albeit with some changes.

While a 190-page regulatory package may sound complete, much of the RBCRs rely on guidance documents for implementation, none of which have been drafted yet.  In addition, the implementation of the RBCRs will necessitate statutory changes, such as the elimination of the Significant Environmental Hazard program, which can only be accomplished by the General Assembly.  Finally, and perhaps most significantly, before the RBCRs can be formally adopted by DEEP, DEEP will first have to file a notice of intent to file such regulations, open a public comment process, respond to any comments it receives and revise the RBCRs to respond to such comments. 

Once that process is completed, the draft regulations will need to garner approval from the Attorney General’s Office and the General Assembly’s Regulation Review Committee.  The Regulation Review Committee is a bipartisan review committee that frequently requires agencies to “go back to the drawing board” before approving regulations, as could be seen in the recent debate over the mandating of the sale of electric vehicles in Connecticut.

Once all those hurdles have been cleared, DEEP will still need to develop the guidance documents and forms it is relying upon to fully implement the RBCRs.  This will take additional time and will further delay the implementation of the RBCRs.  Given the far-reaching depth and breadth of the RBCRs, lengthy review of the draft regulations and their implementing documentation is well warranted.  This means, however, that any implementation of new regulations is not likely before 2025.

DEEP to Hold Public Information Sessions on RBCRs

In the interim, DEEP has indicated that it wants to meet with various stakeholders and groups to discuss the draft RBCRs and how they will be implemented.  Thus, DEEP is amenable to being invited to speak to groups to discuss these issues.  In addition, DEEP will be holding public information sessions on the RBCRs, the schedule for which will be announced shortly.

The Pullman environmental team, having two members on the formal Working Group and various other members serving on its subcommittees, will be providing written comments to DEEP on the RBCRs.  We will also continue to monitor the progress of the implementation of the RBCRs and how they will impact Connecticut’s businesses.  We will be providing regular updates to our clients as the implementation of the RBCRs continues, so watch for more detailed updates in the coming weeks and months.

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