What LEPs Should Know About the Transfer Act
Thursday, May 4, 2017, 4:30 - 6:30 PM
City Steam Brewery Cafe - Richardson Room, 942 Main St., Hartford
Note: This program is open for all to attend - not restricted to CT LEPs.
There will be a post-program reception which is co-sponsored by Shipman and Goodwin that will include hot appetizers and beverages (and a free drink ticket for all).
Presenters: (bios shown below):
Aaron Levy, John Wertam and Andrew Davis of Shipman & Goodwin LLP, Hartford, CT
Continuing Education Credits:
This is the first time this program is being offered. It has been approved for 2.0 hours of CT LEP credits by the CT State Board of Examiners of Environmental Professionals (CTLEP-438).
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 LEPs and environmental attorneys work together both before and after a transaction to help them navigate the overlapping legal and technical aspects of Transfer Act compliance. Accordingly, understanding the legal triggers for Transfer Act applicability and appreciating the risks and liabilities associated with Transfer Act compliance is critical for LEPs to effectively advise their clients about the Transfer Act and its implications. This seminar will provide an overview of key legal aspects of the Transfer Act, including, determining whether the Transfer Act applies to a given transaction (and, if it does, what forms to file and why), potential liability for certifying parties, as well as address implications of the Transfer Act on a business transaction by providing a brief legal overview of the Remediation Standard Regulations, practical considerations related to Environmental Land Use Restrictions, and options for verification. The program will conclude with a brief discussion of other legal/technical issues to consider in connection with Transfer Act compliance before and after a transaction.
a. Applicability: A coordinated technical and legal analysis
i. What is (and what is not) an “establishment”?
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)
iii. Legal aspects and consideration related to Environmental Land Use Restrictions (ELURs) (CGS §§ 22a-133o through 133s)
iv. Verifications: Full, Portion, Interim
v. DEEP audits and practical considerations
c. 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
Aaron Levy is a partner 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. Aaron’s full bio is available here: http://shipmangoodwin.com/alevy
John Wertam has extensive counseling experience in all areas of environmental law. He practices primarily in the areas of hazardous waste management, wastewater discharge permitting, site assessment and risk evaluation, permitting, enforcement defense and lender liability. He also has broad experience negotiating environmental issues in business and real estate transactions. John has lectured for over twenty-five years on environmental topics including the Connecticut Transfer Act, and is author of all five editions of the Connecticut Environmental Law Handbook. He brings a unique background and extensive experience to the practice of environmental law and the resolution of environmental issues. His experience with the Connecticut Transfer Act and Connecticut Remediation Standard Regulations allows him to effectively counsel clients on the risks and liabilities associated with transferring property or business operations in Connecticut. John’s full bio is available here: http://shipmangoodwin.com/jwertam
Andrew Davis, Ph.D., is a partner 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. Andrew’s full bio is available here: http://shipmangoodwin.com/adavis