Change the Transfer Act to Save It
Written By: Paul Jacobi | August 23, 2018
I have always loved Yogi Berra. He was a Hall of Fame player and a Hall of Fame creator of peculiar expressions. My favorite Yogiism is “When you come to a fork in the road, take it.” Although not a Yogiism, I am also fond of the expression, “Don’t throw the baby out with the bathwater.” Although the image is awfully strange, the concept makes sense, especially when dealing with environmental regulation in Connecticut. The Transfer Act has received its fair share of criticism over the years. However, getting rid of the Transfer Act is not the answer. Instead, making it work to protect health and the environment while promoting business growth must be the objective.
Having had the privilege of participating in the Transfer Act’s statutory development as early as 1995, I do have a strong interest in its successful development. It doesn’t work well in its present configuration, as it is out of sync with the trend toward risk assessment as the basis for regulation. It is also too slow of a process, with the average cleanup taking 7 years to complete. Frankly, it also has a bad reputation with out-of-state developers who have little interest in being stuck in regulatory quicksand for an indefinite period of time when their projects and sites are not the sources of significant risk. The Transfer Act’s bad reputation is well deserved.
The problems are fixable, but risk assessment must become the primary factor in defining the level of cleanup required at a site. Of course, I don’t want “foxes in the hen house.” Yogi could have said that, but didn’t. It means that the state must spend money to hire a number of experts in environmental risk assessment to assure that the assessments are performed properly and reviewed quickly.
By the way, we also need more DEEP staff conducting Transfer Act reviews. This process must become much faster if we are going to encourage business investment and redevelopment in this State. Going back to the beginning of the LEP program in the mid-1990s, it was designed to trust LEPs, particularly for sites that, based on groundwater classification and analytical data, did not reflect significant risk.
The original Environmental Condition Assessment Form was quite simple. If the site was in a GB groundwater area and the analytical data was acceptable, the vision was that the LEP would be empowered to implement the Remediation Standard Regulations with little interference. Whether anyone wants to agree with me or not, the fact is that from time to time, this concept was not followed by personnel at DEEP who did not fully commit to the LEP process. It will never be perfect, but the process can work efficiently if sufficient resources are allocated and the regulatory attitude changes.