[CPEO-BIF] CT RB 6526 Brownfields Bill Passes CT State Senate June 7 after unanimous approval by House

[Lenny Siegel <LSiegel@cpeo.org>]

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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