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Changes to Significant Environmental Hazard Reporting Law Will Greatly Impact Brownfield Redevelopment

July 24, 2013

Changes to Significant Environmental Hazard Reporting Law Will Greatly Impact Brownfield Redevelopment

Public Act 13-308, entitled “An Act Implementing the Recommendations of the State of Connecticut Brownfield Working Group and Concerning Brownfield Liability Relief, Notification Requirements for Certain Contaminated Properties and the Use of Notice of Activity and Use Limitations,” made important changes to the significant environmental hazard reporting law of Connecticut. The act changes various contamination reporting thresholds and, in some cases, imposes an affirmative duty to abate or mitigate contamination. It is important to note that the changes become effective on July 1, 2015.

Previous Law
Connecticut General Statutes section 22a-6u, originally enacted in 1998, sets forth the circumstances under which significant environmental hazards must be reported to the Commissioner of the Department of Energy and Environmental Protection (DEEP). After a technical environmental professional, defined to include a consultant performing due diligence incident to a sale, determines that specified pollution or contamination exists on a parcel, the professional must notify his or her client, as well as the owner of the parcel. The statute then requires the owner of the parcel, and in some cases the professional’s client, to notify DEEP of the contamination within a certain time period after the owner becomes aware of the contamination. After DEEP receives notice, it may require an owner to submit a plan to abate the hazard, or to undertake specific actions.

Summary of Amendments
Sections 31 and 32 of Public Act 13-308 considerably broaden the circumstances under which an owner must report significant environmental hazards. Although the law leaves unchanged the mechanisms for reporting, it makes a handful of changes to the time frames of such reports.

In some instances, the law lowers the contamination thresholds that trigger the notice requirements, which may impact owners not required to provide notice under the previous version of this statute. For example, the law previously required notice from owners of parcels causing pollution of groundwater within 15 feet below certain buildings by a volatile organic substance at or above 30 times the industrial/commercial volatilization criterion for the substance. Public Act 13-308 lowers the threshold to 10 times that criterion and expands the requirement to contamination within fifteen feet “of” the buildings, instead of “below.” Owners of parcels with contamination of soil at or above 15 times the industrial/commercial direct exposure criterion for a newly enumerated list of metals or within a specified distance of non-industrial/non-commercial facilities now must also provide notice. Owners of parcels causing contamination of bodies of water with nonaqueous phase liquid, at any level, must take quick action.

The most dramatic change to the existing statute will likely be the actions, in addition to providing notice, required of owners of land contaminated by significant environmental hazards. In certain instances, the law imposes an affirmative duty on owners to conduct receptor surveys, determine the presence of water supplies on adjacent parcels of land, seek access to sample drinking water supply wells on other parcels, sample and analyze other water supplies, and conduct confirmatory sampling of test results, all within short time constraints. Moreover, the law requires owners to submit reports that may include proposals for action to identify, monitor, abate, eliminate, mitigate, and prevent further exposure to contaminants. The law defines “mitigation” as actions, including placing gravel, pavement, fencing, water filtration, and other interim measures, taken to control the contamination of a significant environmental hazard.

Effects of Public Act 13-308
Some predict that the law will dramatically expand the number of sites that need remediation, putting sites that do not pose much of a risk at the same level of danger as those that pose an immediate health risk. This could potentially choke the remediation pipeline, harming an already weak commercial real estate market.

If you own or plan to purchase or sell land that already required notice to DEEP under this statute or if you avoided notice due to the previous contamination thresholds, you may be affected when these amendments take effect on July 1, 2015. Owners should begin planning how these amendments and future changes to the Remediation Standard Regulations will impact financial decisions made between now and 2015, and after 2015.

The same Public Act also amends the state’s brownfields programs and provides further assistance to municipalities. Municipalities acquiring affected property through foreclosure should also note that section 30 of Public Act 13-308 creates a new liability relief program that may be helpful, which is discussed in more detail in the following client bulletin.

If you have questions on any of the issues addressed here, please contact Alfred E. Smith, Jr. at 203.772.7722/, or any of the other members of our Environmental Practice Group. Public Act No.: 13-308, §§ 31-32; Affected Statute: § 22a-6u; Effective Date of Notification Amendments: July 1, 2015.

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