Common (and not-so common) Legal and Technical Issues Involving the Transfer Act
Thursday, November 1, 2018, 1 PM - 5 PM
Shipman & Goodwin LLP, One Constitution Plaza, Hartford
For printable, full color map and directions, click here
There will be a post-program reception with appetizers, wine and beer!
Continuing Education Credits (see note regarding earlier version of this class):
This program has been approved by the CT Board of Examiners of Environmental Professionals (LEP Board) for 4.0 CECs (Course # CTLEP-438(r)).
NOTE: This course is a revised and expanded version of initial program entitled "What LEPs Should Know About the Transfer Act" (CTLEP-438) offered on 5/4/17. If you took that class and claimed it for credit for the last LEP license renewal period, you cannot obtain any CECs for this class.
Instructors (see bios below):
- Aaron Levy, Shipman & Goodwin LLP
- Andrew Davis, PhD., Shipman & Goodwin LLP
- Gordon Binkhorst, PhD., ALTA Environmental Corporation
- Adam Henry, GZA GeoEnvironmental, Inc.
Initially adopted in 1985, the Connecticut Transfer Act continues to have significant implications for real estate and business transactions throughout the state. As a result, clients are best served when their Licensed Environmental Processionals (LEPs) and environmental attorneys are engaged to work together before, during, and after a transaction to help them navigate the overlapping legal and technical aspects of Transfer Act compliance. Accordingly, understanding: (1) the sources of information upon which an LEP needs to rely on to provide its opinion regarding whether the site or business is an “establishment” per the Transfer Act; (2) the legal triggers for what constitutes a “transfer” for purposes of Transfer Act applicability; and (3) the risks and liabilities associated with Transfer Act compliance are critical for effectively advising clients about the Transfer Act and its implications. This 4-hour seminar will include a discussion of key technical and legal aspects of the Transfer Act, including how to determine whether a business or property meets the definition of an “establishment,” whether the Transfer Act applies to a given transaction (and, if it does, what forms to file and why), and potential liability for the “Certifying Parties.” This seminar also will address implications of the Transfer Act on a business transaction by providing a brief technical and legal overview of the Remediation Standard Regulations governing site investigations and remediation of “establishments,” practical considerations related to engineering and institutional controls (e.g., Environmental Land Use Restrictions, or “ELURs”), and options for achieving “no further action” (i.e., Verification (LEP)/Certification (DEEP)). Unlike the 2-hour seminar presented in May 2017 entitled “What LEPs Should Know About the Transfer Act,” this 4-hour program will provide more nuanced discussion regarding many of the common (and not-so-common) technical and legal issues that arise when advising clients on issues related to the Transfer Act.
a. The Transfer Act - A Brief History: How did we get here?
b. Applicability: A coordinated technical and legal analysis
i. What is (and what is not) an “establishment” and who decides?
ii. Review of primary information sources relied on by LEPs
ii. When is a transfer of an establishment not a “transfer of establishment”?
i. Forms I, II, III and IV and the Environmental Condition Assessment Form (ECAF)
ii. Legal overview of the Remediation Standard Regulations (RSRs) (RCSA §§ 22a-133k-1 through 3) and APS
iii. Legal aspects and considerations related to Environmental Land Use Restrictions (ELURs) (CGS §§ 22a-133o through 133s)
iv. Verifications: Full, Portion, Interim
v. DEEP audits and practical considerations
d. Other Issues to Consider
i Implications of seller vs. buyer as Certifying Party
ii. Certifying Party - Joint and several liability until the site is verified?
iii. “Stacked forms” (e.g., transfer of a site after a Form III but prior to verification)
iv. New releases by non-certifying party
Final Summary, Questions & Answers
Aaron Levy is a partner at Shipman & Goodwin LLP in the firm’s environmental practice group. His practice involves providing environmental regulatory compliance and business counseling with respect to a wide range of federal and state environmental, health and safety laws. Aaron’s experience includes advising buyers, sellers and lenders on environmental risks and liabilities associated with mergers and acquisitions, lending arrangements and corporate reorganizations. Aaron’s experience also includes negotiating environmental insurance programs and other risk allocation and liability transfer agreements to creatively “box in” environmental risks. Aaron also regularly counsels private and public entities regarding compliance with remediation requirements under federal and state laws, as well as the abatement of hazardous building materials (e.g., asbestos, lead, PCBs). Aaron is a co-author of the Asbestos chapter of the Environmental Law Practice Guide published by Matthew Bender and was selected to co-author and periodically update the environmental, health and safety provisions of the model transaction documents (e.g., Asset Purchase Agreement, Stock Purchase Agreement) published by the Practical Law Company, Inc.
Andrew Davis, Ph.D., is a partner at Shipman & Goodwin LLP and chairs the firm’s national environmental practice. He counsels clients in transactional, permitting, compliance and enforcement matters under health and safety, hazardous waste, air and water pollution, site development and property transfer laws. He has gained a national reputation in numerous high-profile matters, providing environmental support in domestic and cross-border energy, corporate and real estate transactions. His work encompasses developing and negotiating deal documents; conducting environmental due diligence; and designing environmental insurance and other risk transfer mechanisms to creatively manage environmental concerns and close deals involving contaminated properties. Andrew co-authors the “asbestos” chapter of the Environmental Law Practice Guide and the environmental, health and safety provisions and practice notes of the Practical Law Company’s model transaction documents (e.g., Asset Purchase Agreement, Stock Purchase Agreement). Andrew also assists clients with site assessments, environmental auditing, reporting, record keeping and other compliance obligations under various programs governing asbestos, PCBs, lead, mold and other environmental/health and safety issues. He is an adjunct professor of environmental science, law and policy at Connecticut College and a Fellow at the Goodwin-Niering Center for the Environment.
Gordon Binkhorst, Ph.D. is a Principal with ALTA Environmental Corporation and has been a Licensed Environmental Professional since 2009. With over 30 years of experience, Gordon is responsible for providing technical oversight and direction on projects involving the Connecticut Property Transfer Act, the Remediation Standard Regulations, complex hydrogeologic and contaminant investigations, and remediation. Gordon is currently an Adjunct Professor at UConn where he teaches an undergraduate class on completing environmental site assessments and pertinent regulations and serves as a member of UConn’s Geoscience Advisory Board. Gordon is a member of EPOC’s Education Committee and a guest lecturer for the Young Environmental Professionals group. Gordon is also a Senior Technical Advisor to Pure Earth in New York, assisting in environmental assessments and remediation globally on their behalf, including mitigation of lead exposure to residents surrounding a former lead mine in Zambia and former lead-acid battery recycling sites in Philippines, India and Bangladesh.
Adam Henry is an Associate Principal with GZA and has been a Licensed Environmental Professional since 2007 and a Licensed Professional Geologist (TN) since 2005. Adam has over twenty years of experience with environmental site assessments, investigations, and remediation on various types of properties ranging from commercial establishments to existing and abandoned industrial facilities. Within Connecticut, many of those sites were regulated under the Connecticut Transfer Act Program and Adam’s experience includes filing and verifying sites under Forms I, II, III and IV. Adam regularly works with parties to transfers and their counsels to advise them on potential costs and liabilities associated with Transfer Act compliance. Adam’s experience also includes serving as an expert witness on litigation matters involving the Transfer Act. Adam is a geologist and received his BS from the University of New Hampshire and MS from Virginia Tech.