2011 CPEO Brownfields List Archive

From: Lenny Siegel <LSiegel@cpeo.org>
Date: Thu, 9 Jun 2011 08:43:01 -0700 (PDT)
Reply: cpeo-brownfields
Subject: [CPEO-BIF] CT RB 6526 Brownfields Bill Passes CT State Senate June 7 after unanimous approval by House
 
From: "Trilling, Barry" <BTrilling@wiggin.com>

Bill now awaits signature by Governor Malloy. See: http:// www.cga.ct.gov/2011/FC/pdf/2011HB-06526-R000870-FC.pdf.

Here's a thumbnail analysis:


Sec. 17 of HB 6526 establishes a program protecting parties investigating and remediating brownfields from liability to the state and third parties. Parties eligible to participate in the program include bona fide purchasers (BFPs), innocent land owners and contiguous property owners who did not themselves contaminate the property. Also, upon subsequent conveyance, properties remediated under the program are exempt from the filing requirements of the Connecticut Transfer Act . The program is open to people, businesses, nonprofit organizations, municipalities, public and private municipal economic development agencies, and state agencies. Under the Sec. 17 program the Department of Community and Economic Development (DECD) may admit up to 32 applicants per year to the program. Applicants accepted to the program receive liability protection protections immediately upon acceptance into the program which continue after remediation of the site. Particularly important, the protections against liability afforded to the BFP for properties remediated under the program extend as well to the party from whom the BFP acquired the Brownfield, even if that party does not meet the eligibility requirements of the program, provided, however, that while the BFP does not have to address off-site contamination, the prior owner will retain liability for any such migration off-site. Program participants are liable for contaminating the property or contributing to contamination that was there before they acquired it. After DECD makes the decision as to who may enter the program, administration shifts to the Department of Environmental Protection (DEP, which under legislation anticipated to be enacted this week will become the Department of Energy and Environmental Protection, or DEEP) which will monitor and may audit the remediation of properties in the program.

Using a Licensed Environmental Professional (LEP), a participant must clean up the property according to DEP standards: it must characterize, abate, or remediate the contamination on the property according to prevailing standards and guidelines and clean it up according to the plan and schedule they must submit to DEP for this purpose. The participant's LEP must submit a Brownfields Investigation Plan and Remediation Schedule (BIPRS) for this purpose to the DEP commissioner within 180 days after DECD has approved its application. The plan and schedule must include a timeframe for notifying specified parties and the public before the remediation begins. The public has 30 days from the last notice provided by the participant to comment on the proposed remediation. The bill implicitly requires the participant to respond to the public comments by allowing the participant to start cleaning up the property only after it submits those comments and its responses to the DEP commissioner.

Applicants must pay a fee equal to 5% of the Brownfield's assessed value as of the municipality's most recently completed grand list, to be paid in two equal installments, but the bill sets conditions for reducing or eliminating the amounts. The participant must pay the first installment within 180 days after the DECD commissioner approves the application and the second within four years after that date. The DEP commissioner must reduce the installments if the participant finishes investigating and remediating the brownfield ahead of the bill's deadlines for completing these tasks. He must reduce the first installment by 10% if the participant finishes investigating the property within 180 days after the DECD commissioner approves its application.

The bill gives participants up to two years to investigate the property, three years to commence remediation, and eight years to finish the cleanup. The DEP commissioner must eliminate the second installment if the participant cleans up the property within four years after the application's approval date If a participant voluntarily investigates contamination that migrated from the property, the commissioner must reduce the installment or give the participant a refund for the reasonable costs it incurred for investigating the off-site contamination, up to the installment amount. A subsequent party that acquires a property in the program must pay a $10,000 transfer fee to obtain the bill's protections. The bill exempts municipalities and municipal economic development agencies from paying this fee when they acquire property in the program, but it requires them to collect and remit it to DEP if they transfer the property to another party.

The DEP may audit a remediation if the DEP Commissioner requests information from the participant and receives no response within 60 days. DEP may, for any reason, conduct an audit within 180 days after the participant has submitted the remedial action report and the verification or interim verification. The Commissioner must first notify the participant about whether he will do so within 60 days after receiving the documents. If he decides to audit the actions, he must complete the audit within 180 days after receiving the documents. The Commissioner may not audit the remediation more than 180 days after receiving the verification or interim verification unless if he believes the verification was based on inaccurate, erroneous, or misleading information or he determines that post verification monitoring and other actions have not been taken. He may also audit the remediation after 180 days if an environmental land use restriction was not recorded in the land records, the law was violated with regard to verification, or the remediation may not be preventing a substantial threat to the environment and public health. Within 14 days after completing the audit, the Commissioner must send the audit findings to the participant, the LEP, and the DECD commissioner. In doing so, the Commissioner may approve or disapprove the remedial action report and, if he does the latter, explain why. A decision to approve the remedial action, although not so entitled, will amount to the Connecticut equivalent of a "No Further Action" letter issued by other sates.

The interim protections from liability that an applicant receives upon acceptance into the program become permanent once the DEP commissioner notifies the participant that he will not audit the process or that his audit findings have been addressed. The permanent liability protection for the participant and for the immediate prior owner also begins if the Commissioner fails to act on a remedial action report and the accompanying verifications within 180 days after receiving them. Under both outcomes, neither the participant nor the prior owner have liability to the state or third parties for the costs incurred to remediate the contamination identified in the plan. Nor are they liable for the costs relating to equitable relief or damages resulting from the contamination. The liability protections for the BFP, innocent land owner, and contiguous property owner also apply to historical off-site impacts, including deposition, waste disposal, the effects on sediments, and damage to natural resources, but those protections do not extend to the prior owner.




Barry J. Trilling
W I G G I N  A N D  D A N A


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