CHAPTER 445
HAZARDOUS WASTE

      Sec. 22a-133u. Uses of Special Contaminated Property Remediation and Insurance Fund. (a) The Commissioner of Environmental Protection may use any funds in the Special Contaminated Property Remediation and Insurance Fund established in section 22a-133t other than any funds which are necessary to carry out any other responsibility of said commissioner under this section, for (1) removal or mitigation of a spill, as defined in section 22a-452c, upon or into land or waters of the state if the owner of the property associated with such spill is found to be an innocent landowner, as defined in section 22a-452d, and for administrative costs related to such removal or mitigation or (2) administrative costs related to the remediation of a property for which a loan was made under subsection (b) of this section provided not more than five thousand dollars shall be disbursed from the fund for such purpose. Said commissioner may use any funds received in connection with the issuance of a covenant not to sue or a settlement by said commissioner of a claim related to contaminated real property, or any funds received pursuant to section 22a-16a, for removal or mitigation of a spill, as defined in section 22a-452c, for which the owner of the property associated with such spill would be liable except for a covenant not to sue entered into pursuant to sections 22a-133aa or 22a-133bb and for administrative costs related to such removal or mitigation. Said commissioner may use any funds received pursuant to section 22a-134e and subsection (c) of section 22a-133aa, for expenses related to the administration of sections 22a-134 to 22a-134e, inclusive, and for expenses related to administration of sections 22a-133x, 22a-133y, 22a-133aa and 22a-133bb.

      (b) The Commissioner of Economic and Community Development, may use any funds deposited into the Special Contaminated Property Remediation and Insurance Fund pursuant to section 3 of public act 96-250* for (1) loans to municipalities, individuals or firms for Phase II environmental site assessments, Phase III investigations of real property or for any costs of demolition, including related lead and asbestos removal or abatement costs or costs related to the remediation of environmental pollution, undertaken to prepare contaminated real property for development subsequent to any Phase III investigation, and (2) expenses related to administration of this subsection provided such expenses may not exceed one hundred twenty-five thousand dollars per year.

      (c) Any person, firm, corporation or municipality which has received funds under subsection (b) of this section shall repay such funds to the Commissioner of Economic and Community Development, according to a schedule and terms which said commissioner deems appropriate. The principal amount of the loan shall be due at a time deemed appropriate by the commissioner as follows: (1) Upon the sale of the property or lease of the property, in whole or in part, which is the subject of such evaluation or demolition; (2) upon the sale or release of a municipality's liens on such property; or (3) upon the approval by the Commissioner of Environmental Protection of a final remedial action report submitted in accordance with section 22a-133y. The Commissioner of Economic and Community Development may require repayment of the loan amortized over a period of no more than five years from the sale of the property, sale of the lien or approval by the Commissioner of Environmental Protection of the final remedial action report. No repayment shall be required, other than interest for the period that the loan is outstanding, if completion of remediation of environmental pollution at or on the property, or the sale or lease of such property, is economically infeasible due to the cost of such remediation. The commissioner may require partial repayment of the loan only if partial repayment is economically feasible. Any funds received by said commissioner as repayment under this subsection shall be deposited into the brownfield remediation and development account. The terms of any loan agreement entered into by said commissioner under said subsection may provide for the collection of interest on the loan which may vary according to whether the applicant is a municipality or a private entity and the duration of the repayment schedule for such loan provided the interest cost to the borrower provided for in such agreement shall not exceed the interest cost to the state on borrowings of like terms.

      (d) The amount of any funds received under subsection (b) of this section by any entity other than a municipality shall be a lien against the real property for which the funds were disbursed. A lien pursuant to this section shall not be effective unless (1) a certificate of lien is filed in the land records of each town in which the real estate is located, describing the real estate, the amount of the lien, the name of the owner as grantor, and (2) the Commissioner of Economic and Community Development mails a copy of the certificate to such persons and to all other persons of record holding an interest in such real estate over which the commissioner's lien is entitled to priority. Any action for the foreclosure of such lien shall be brought by the Attorney General in the name of the state in the superior court for the judicial district in which the property subject to such lien is situated, or, if such property is located in two or more judicial districts, in the superior court for any one such judicial district, and the court may limit the time for redemption or order the sale of such property or make such other or further decree as it judges equitable.

      (e) (1) There is established a Special Contaminated Property Remediation and Insurance Fund Advisory Board to advise and review, on a yearly basis, the progress of the fund. The board shall consist of one member representing a municipality, appointed by the speaker of the House of Representatives; one member representing a bank, appointed by the majority leader of the Senate; one member who has experience in the field of contaminated property remediation, appointed by the majority leader of the House of Representatives; one member representing a municipality, appointed by the president pro tempore of the Senate; one member representing a bank, appointed by the minority leader of the House of Representatives; one member who has experience in the field of contaminated property remediation, appointed by the Governor; and one member representing a municipality, appointed by the minority leader of the Senate. The board shall annually elect one of its members to serve as chairperson.

      (2) The Commissioner of Economic and Community Development shall establish criteria for (A) making disbursements under subsection (b) of this section which criteria shall include, but not be limited to, anticipated commercial value of the property, potential tax revenue to the relevant municipality, environmental or public health risk posed by the spill, potential community or economic development benefit to the relevant municipality, the status of any loans previously made under said subsection to the municipality and potential for restoration of an abandoned property, and (B) cancelling loans related to a property at which the borrower of the loan elects not to proceed with remediation. Such criteria shall further set forth the procedure for applying for a loan from the fund and the procedure to be used for evaluation of such an application. In approving any loan under said subsection to any person, firm or corporation, the Commissioner of Economic and Community Development may consider the loan applicant's credit history and economic solvency, any plan of such applicant for business development, municipal support for the proposed use of the property and any existing indebtedness of such applicant to any entity.

      (P.A. 95-190, S. 6, 17; 95-250, S. 1; P.A. 96-211, S. 1, 5, 6; 96-250, S. 5, 7; P.A. 97-124, S. 13, 16; P.A. 98-134, S. 5; 98-253, S. 14; P.A. 99-216, S. 1; 99-225, S. 15, 33; P.A. 00-171, S. 1, 2; P.A. 01-204, S. 2, 29; June Sp. Sess. P.A. 01-9, S. 73, 131; P.A. 05-191, S. 6; 05-285, S. 1; P.A. 07-233, S. 7.)

      *Note: Section 3 of public act 96-250 is special in nature and therefore has not been codified but remains in full force and effect according to its terms.

      History: P.A. 95-190, S. 6 effective June 29, 1995; P.A. 95-250 and P.A. 96-211 replaced Commissioner and Department of Economic Development with Commissioner and Department of Economic and Community Development; P.A. 96-250 amended Subsec. (a) to add provisions re use of fund for administrative and other costs incurred by commissioner under this section, amended Subsec. (b) to condition use of the fund by the Commissioner of Economic and Community Development upon approval of the advisory board, to delete a reference to former provisions for revenue bond moneys, to add provisions re deposit of moneys from other sources and to change provision re administrative allowance from 10% of fund to $125,000 per year, amended Subsec. (c) to add provision exempting from repayment of loan properties whose resale or lease is economically infeasible, and amended Subsec. (e) to establish the advisory board and to provide for its powers and duties, effective July 1, 1996; P.A. 97-124 amended Subsec. (b) to allow loans under this section for demolition undertaken subsequent to any Phase III investigation and to make technical changes, effective June 6, 1997; P.A. 98-134 amended Subsec. (b) to allow loans under this section for any Phase III investigation; P.A. 98-253 deleted reference to Sec. 22a-133bb(c) in Subsec. (a); P.A. 99-216 amended Subsec. (e) to require the Commissioner of Economic and Community Development to establish criteria for disbursements from the fund and to require additional information in the report required to be submitted to the General Assembly regarding the fund; P.A. 99-225 amended Subsec. (e) to delay until February 1, 2001, and modify the requirements of, a report by the board to the General Assembly regarding the solvency of the fund, effective June 29, 1999; P.A. 00-171 amended Subsec. (b) to allow funds to be used for lead and asbestos removal or abatement costs and amended Subsec. (c) by revising terms of repayment; P.A. 01-204 amended Subsec. (e)(2) to change the date on which the board must submit report from February 1, 1997, to February 1, 2003, and to change the date on which the board must submit recommendations from February 1, 2001, to February 1, 2003, effective July 11, 2001; June Sp. Sess. P.A. 01-9 revised effective date of P.A. 01-204 but without affecting this section; P.A. 05-191 amended Subsec. (e)(2) to delete requirement for annual report by board and Commissioner of Economic and Community Development; P.A. 05-285 amended Subsec. (b) to delete requirement for approval of the advisory board, to delete reference to repealed Sec. 12-63f, and to allow loans to be used for costs related to remediation, amended Subsec. (c) to allow the Commissioner of Economic and Community Development to require repayment of loan amortized over a period of no more than five years after certain events, amended Subsec. (d) to make a technical change, and amended Subsec. (e) to change the function of the board, effective July 13, 2005; P.A. 07-233 amended Subsec. (c) to require any funds received as repayment to be deposited into brownfield remediation and development account, rather than Special Contaminated Property Remediation and Insurance Fund, effective July 1, 2007.

      Sec. 22a-133v. Licensed environmental professionals. Definitions. Licensing board. Standard of care. Issuance of license. Fees. Suspension or revocation of license or other sanction. Examination. (a) As used in this section: (1) "Environmental professional" means a person who is qualified by reason of his knowledge, as specified in subsection (e) of this section, to engage in activities associated with the investigation and remediation of pollution and sources of pollution including the rendering or offering to render to clients professional services in connection with the investigation and remediation of pollution and sources of pollution; (2) "pollution" means pollution, as defined in section 22a-423; and (3) "commissioner" means the Commissioner of Environmental Protection or his designated agent.

      (b) There shall be within the Department of Environmental Protection a State Board of Examiners of Environmental Professionals. The board shall consist of eleven members. One member, who shall be the chairman of the board, shall be the Commissioner of Environmental Protection, or his designee. The Governor shall appoint the other ten members of the board who shall consist of the following: Six members shall be licensed environmental professionals or, prior to the publication by the board of the first roster of licensed environmental professionals, persons on the list maintained by the commissioner pursuant to subsection (h) of this section, including at least two having hydrogeology expertise and two who are licensed professional engineers; two members who are active members of an organization that promotes the protection of the environment; one member who is an active member of an organization that promotes business; and one member who is an employee of a lending institution. The members of the board shall administer the provisions of this section as to licensure and issuance, reissuance, suspension or revocation of licenses concerning environmental professionals. The Governor may remove any member of the board for misconduct, incompetence or neglect of duty. The members of the board shall receive no compensation for their services but shall be reimbursed for necessary expenses incurred in the performance of their duties. The board shall keep a true and complete record of all its proceedings.

      (c) A licensed environmental professional shall perform his duties in accordance with the standard of care applicable to professionals engaged in such duties. The commissioner, with advice and assistance from the board, may adopt regulations, in accordance with the provisions of chapter 54, concerning professional ethics and conduct appropriate to establish and maintain a high standard of integrity and dignity in the practice of an environmental professional and may make rules for the conduct of the board's affairs and for the examination of applicants for licenses.

      (d) The commissioner shall receive and account for all moneys derived under the provisions of this section and shall deposit such moneys in the Environmental Quality Fund established pursuant to section 22a-27g. The board shall keep a register of all applications for licenses with the actions of the board thereon. A roster showing the names of all licensees shall be prepared each year. A copy of such roster shall be placed on file with the Secretary of the State.

      (e) The board shall authorize the commissioner to issue a license under subsection (d) of section 22a-133m, sections 22a-184 to 22a-184e, inclusive, this section and section 22a-133w to any person who demonstrates to the satisfaction of the board that such person: (1) (A) Has for a minimum of eight years engaged in the investigation and remediation of releases of hazardous waste or petroleum products into soil or groundwater, including a minimum of four years in responsible charge of investigation and remediation of the release of hazardous waste or petroleum products into soil or groundwater, and holds a bachelor's or advanced degree from an accredited college or university in a related science or related engineering field or is a professional engineer licensed in accordance with chapter 391, or (B) has for a minimum of fourteen years engaged in the investigation and remediation of releases of hazardous waste or petroleum products into soil or groundwater, including a minimum of seven years in responsible charge of investigation and remediation of hazardous waste or petroleum products into soil or groundwater; (2) has successfully passed a written examination, or a written and oral examination, prescribed by the board and approved by the commissioner, which shall test the applicant's knowledge of the physical and environmental sciences applicable to an investigation of a polluted site and remediation conducted in accordance with regulations adopted by the commissioner under section 22a-133k and any other applicable guidelines or regulations as may be adopted by the commissioner; and (3) has paid an examination fee of one hundred eighty-eight dollars to the commissioner. In considering whether a degree held by an applicant for such license qualifies for the educational requirements under this section, the board may consider all undergraduate, graduate, postgraduate and other courses completed by the applicant.

      (f) The board shall authorize the commissioner to issue a license to any applicant who, in the opinion of the board, has satisfactorily met the requirements of this section. The issuance of a license by the commissioner shall be evidence that the person named therein is entitled to all the rights and privileges of a licensed environmental professional while such license remains unrevoked or unexpired. A licensed environmental professional shall pay to the commissioner an annual fee of three hundred thirty-eight dollars, due and payable on July first of every year beginning with July first of the calendar year immediately following the year of license issuance. The commissioner, with the advice and assistance of the board, may adopt regulations in accordance with the provisions of chapter 54, pertaining to the design and use of seals by licensees under this section and governing the license issuance and renewal process, including, but not limited to, procedures for allowing the renewal of licenses when an application is submitted not later than six months after the expiration of the license without the applicant having to take the examination required under subsection (e) of this section.

      (g) The board may conduct investigations concerning the conduct of any licensed environmental professional. The commissioner may conduct audits of any actions authorized by law to be performed by a licensed environmental professional. The board shall authorize the commissioner to: (1) Revoke the license of any environmental professional; (2) suspend the license of any environmental professional; (3) impose any other sanctions that the board deems appropriate; or (4) deny an application for such licensure if the board, after providing such professional with notice and an opportunity to be heard concerning such revocation, suspension, other sanction or denial, finds that such professional has submitted false or misleading information to the board or has engaged in professional misconduct including, without limitation, knowingly or recklessly making a false verification of a remediation under section 22a-134a, or violating any provision of this section or regulations adopted under the provisions of this section.

      (h) The board shall hold the first examination pursuant to this section no later than eighteen months after the date the commissioner adopts regulations pursuant to section 22a-133k, and shall publish the first roster of licensed environmental professionals no later than six months after the date of such examination. Until such time as the board publishes the first roster of licensed environmental professionals, any person who (1) has for a minimum of eight years engaged in the investigation and remediation of releases of hazardous waste or petroleum products into soil or groundwater, including a minimum of four years in responsible charge of investigation and remediation of the release of hazardous waste or petroleum products into soil or groundwater, (2) holds a bachelor's or advanced degree from an accredited college or university in a related science or related engineering field or is a professional engineer licensed in accordance with chapter 391, and (3) pays a registration fee of two hundred twenty-five dollars may apply to the commissioner to be placed on a list of environmental professionals. Any person on such list may perform any duties authorized by law to be performed by a licensed environmental professional until such time as the first roster of licensed environmental professionals is published by the board.

      (i) Nothing in this section shall be construed to authorize a licensed environmental professional to engage in any profession or occupation requiring a license under any other provisions of the general statutes without such license.

      (P.A. 95-183, S. 4; P.A. 96-113, S. 15, 17; 96-180, S. 132, 166; June 30 Sp. Sess. P.A. 03-6, S. 117; P.A. 06-76, S. 16; P.A. 07-81, S. 1.)

      History: P.A. 96-113 amended Subsec. (h) to change the first examination of licensed environmental professionals from no later than one year to no later than 18 months after the date the commissioner adopts regulations, effective May 24, 1996; P.A. 96-180 amended Subsec. (b) to correct a statutory reference, effective June 3, 1996; June 30 Sp. Sess. P.A. 03-6 amended Subsec. (e) to increase examination fee from $125 to $188, amended Subsec. (f) to increase annual fee from $225 to $338 and to delete provision re specification of fees in regulations and amended Subsec. (h) to increase registration fee from $150 to $225, effective August 20, 2003; P.A. 06-76 amended Subsec. (e) to allow the board to consider all undergraduate, graduate, postgraduate and other courses completed by the applicant and amended Subsec. (f) to allow the commissioner to adopt regulations governing the license issuance and renewal process; P.A. 07-81 amended Subsec. (g) to add Subdiv. designators (1), (2) and (4), add Subdiv. (3) re imposition of other sanctions and make conforming and technical changes.

      Sec. 22a-133x. Investigation and remediation of contaminated real property. Submission of forms. Review by commissioner. Fee. Notification required. (a) Except as provided in section 22a-133y, a political subdivision of the state, an owner of an establishment, as defined in section 22a-134, an owner of property identified on the inventory of hazardous waste disposal sites maintained pursuant to section 22a-133c on October 1, 1995, or an owner of contaminated property located in an area for which the groundwater classification is GA or GAA, may, at any time, submit to the commissioner an environmental condition assessment form for such real property owned by such political subdivision or such owner and an initial review fee in accordance with subsection (e) of this section. The owner or political subdivision shall use a licensed environmental professional to verify the investigation and remediation, unless not later than thirty days after the commissioner's receipt of such form, the commissioner notifies the owner or political subdivision, in writing, that review and written approval of any remedial action at such establishment or property by the commissioner will be required. The commissioner shall not process any such form submitted pursuant to this section unless such form is accompanied by the required initial review fee.

      (b) The owner or political subdivision shall, on or before ninety days after the submission of an environmental condition assessment form, submit a statement of proposed actions for investigating and remediating the parcel or a release area, as defined in the regulations adopted by the commissioner pursuant to section 22a-133k, and a schedule for implementing such actions. The commissioner may require the owner or political subdivision to submit to the commissioner copies of technical plans and reports related to investigation and remediation of the parcel or release area. Notwithstanding any other provision of this section, the commissioner may determine that the commissioner's review and written approval of such technical plans and reports is necessary at any time, and in such case the commissioner shall notify the owner or political subdivision of the need for the commissioner's review and written approval. The commissioner shall require that the certifying party submit to the commissioner all technical plans and reports related to the investigation and remediation of the parcel or release area if the commissioner receives a written request from any person for such information. The owner or political subdivision shall advise the commissioner of any modifications to the proposed schedule. Upon receipt of a verification by a licensed environmental professional that the parcel or release area has been investigated in accordance with prevailing standards and guidelines and remediated in accordance with the remediation standards, the owner or political subdivision shall submit such verification to the commissioner on a form prescribed by the commissioner.

      (c) If the commissioner notifies the owner or political subdivision that the commissioner will formally review and approve in writing the investigation and remediation of the parcel, the owner or political subdivision shall, on or before thirty days of the receipt of such notice, or such later date as may be approved in writing by the commissioner, submit for the commissioner's review and written approval, a proposed schedule for: (1) Investigating and remediating the parcel or release area; and (2) submitting to the commissioner technical plans, technical reports and progress reports related to such investigation and remediation. Upon the commissioner's approval of such schedule, the owner or political subdivision shall, in accordance with the approved schedule, submit technical plans, technical reports and progress reports to the commissioner for the commissioner's review and written approval. The owner or political subdivision shall perform all actions identified in the approved technical plans, technical reports and progress reports in accordance with the approved schedule. The commissioner may approve, in writing, any modification proposed in writing by the owner or political subdivision to such schedule or investigation and remediation and may notify the owner, in writing, if the commissioner determines that it is appropriate to discontinue formal review and approval of the investigation or remediation.

      (d) If, in accordance with the provisions of this section, the commissioner has approved in writing or, as applicable, a licensed environmental professional has verified, that the parcel or release area has been remediated in accordance with the remediation standards, such approval or verification may be used as the basis for submitting a Form II pursuant to sections 22a-134 to 22a-134e, inclusive, provided there has been no additional discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste at or on the parcel subsequent to the date of the commissioner's approval or verification by a licensed environmental professional.

      (e) The fee for submitting an environmental condition assessment form to the commissioner pursuant to this section shall be three thousand dollars and shall be paid at the time the environmental condition assessment form is submitted. Any fee paid pursuant to this section shall be deducted from any fee required by subsection (m) or (n) of section 22a-134e for the transfer of any parcel for which an environmental condition assessment form has been submitted within three years of such transfer.

      (f) Nothing in this section shall be construed to affect or impair the voluntary site remediation process provided for in section 22a-133y.

      (g) Prior to commencement of remedial action taken under this section, the owner or political subdivision shall (1) publish notice of the remediation, in accordance with the schedule submitted pursuant to this section, in a newspaper having a substantial circulation in the area affected by the establishment, (2) notify the director of health of the municipality where the parcel is located of the remediation, and (3) either (A) erect and maintain for at least thirty days in a legible condition a sign not less than six feet by four feet on the parcel, which sign shall be clearly visible from the public highway, and shall include the words "ENVIRONMENTAL CLEAN-UP IN PROGRESS AT THIS SITE. FOR FURTHER INFORMATION CONTACT:" and include a telephone number for an office from which any interested person may obtain additional information about the remediation, or (B) mail notice of the remediation to each owner of record of property which abuts the parcel, at the last-known address of such owner on the last-completed grand list of the municipality where the parcel is located.

      (P.A. 95-183, S. 3; P.A. 96-113, S. 7, 17; P.A. 98-134, S. 4; 98-253, S. 13; P.A. 99-225, S. 4, 14, 20; June 30 Sp. Sess. P.A. 03-6, S. 118; P.A. 07-81, S. 2.)

      History: P.A. 96-113 amended Subsec. (a) to add definition of "municipality", effective May 24, 1996; P.A. 98-134 and P.A. 98-253 both amended Subsec. (a) to allow owners of property in GA and GAA areas to submit an environmental condition assessment form under this section, and P.A. 98-134 also amended Subsec. (b) to include remediation of entire release areas in remediation plans under this section; P.A. 99-225 amended Subsec. (a) to allow remediation under this section of property owned by any political subdivision of the state and to delete definition of "municipality", amended Subsecs. (c) and (d) to provide for investigation and verification of remediation of specific release areas, effective June 29, 1999, and added a new Subsec. (g) regarding notice of remedial action undertaken pursuant to this section; June 30 Sp. Sess. P.A. 03-6 amended Subsec. (e) to increase fee for submitting environmental condition assessment form from $2,000 to $3,000, effective August 20, 2003; P.A. 07-81 amended Subsec. (a) to provide that a licensed environmental professional shall verify investigation and remediation unless department notifies the owner that department will do the verification, amended Subsec. (b) to delete provisions requiring commissioner to notify the owner re formal department review and to provide that commissioner may require department review at any time, amended Subsec. (g) to provide that only owners of property abutting the parcel need be notified at their last-known address and added references to "political subdivision" and made conforming and technical changes throughout.

      Sec. 22a-133aa. Covenant not to sue prospective purchasers or owners of contaminated land. Approval of remediation plan by commissioner. Fee. (a) The Commissioner of Environmental Protection may enter into a covenant not to sue with any prospective purchaser or owner of contaminated real property provided (1) a detailed written plan for remediation of the property, in accordance with standards adopted by said commissioner pursuant to section 22a-133k, has been approved by the Commissioner of Environmental Protection which plan shall be incorporated by reference in the covenant, (2) the Commissioner of Environmental Protection has approved a final remedial action report for such property, or (3) if before any approval by the commissioner of a detailed written plan or final remedial action report for such property, the commissioner has approved a brownfield investigation plan and remediation schedule, as defined in subsection (f) of section 22a-133aa, which investigation plan and remediation schedule shall be incorporated by reference in the covenant. No such covenant may be entered into unless such purchaser or owner has demonstrated to the satisfaction of the commissioner that such purchaser or owner (A) did not establish or create a facility or condition at or on such property which reasonably can be expected to create a source of pollution to the waters of the state for purposes of section 22a-432 and has not maintained any such facility or condition at such property for purposes of said section, and such purchaser is not responsible pursuant to any other provision of the general statutes for any pollution or source of pollution on the property; (B) is not affiliated with any person responsible for such pollution or source of pollution through any direct or indirect familial relationship or any contractual, corporate or financial relationship other than that by which such purchaser's interest in such property is to be conveyed or financed; and (C) will redevelop the property for productive use or continue productive use of such property provided the commissioner determines that the covenant not to sue is in the public interest. Upon the request of a successor of an original holder of a covenant issued under this section, the commissioner shall enter into such covenant with such successor if such successor certifies to the satisfaction of the commissioner that such successor complies with subparagraphs (A), (B) and (C) of this subsection. The commissioner may enter into a covenant not to sue with any lending institution to whom a prospective purchaser of contaminated real property conveys a security interest in such property provided such institution has demonstrated to the satisfaction of the commissioner that such institution did not establish or create a facility or condition at or on such property which reasonably can be expected to create a source of pollution to the waters of the state for purposes of section 22a-432 and has not maintained any such facility or condition at such property for purposes of said section, and such institution is not responsible pursuant to any other provision of the general statutes for any pollution or source of pollution on the property. Any covenant issued to a lending institution under this section shall be effective with respect to any lending institution which is a successor in interest to the original lending institution provided such successor lending institution did not establish or create a facility or condition at or on such property which reasonably can be expected to create a source of pollution to the waters of the state for purposes of section 22a-432 and has not maintained any such facility or condition at such property for purposes of said section, and such institution is not responsible pursuant to any other provision of the general statutes for any pollution or source of pollution on the property.

      (b) Any covenant entered into under this section shall release only those claims said commissioner may have which are related to pollution or contamination on or emanating from the property, which contamination resulted from a discharge, spillage, uncontrolled loss, seepage or filtration on such property prior to the effective date of the covenant. Such covenant shall provide that the commissioner will not take any action against the holder of the covenant to require remediation of the parcel or any other action against such holder related to such discharge, spillage, uncontrolled loss, seepage or filtration unless (1) prior to the commissioner's approval of a detailed written plan for remediation pursuant to a brownfields investigation plan and remediation schedule, the commissioner finds that there is substantial noncompliance with such investigation plan and remediation schedule and there has not been a good faith effort to substantially comply therewith, (2) such property is not remediated in accordance with the detailed written plan approved by the commissioner and incorporated by reference in such covenant, (3) prior to completion of remediation in accordance with such plan, the commissioner finds that there is substantial noncompliance with any such plan and there has not been a good faith effort to substantially comply therewith, (4) remediation of the parcel in accordance with any detailed written plan for remediation did not comply with standards adopted by the commissioner pursuant to section 22a-133k which were in effect as of the effective date of either the covenant or the commissioner's approval of the detailed written plan for remediation, whichever is later, (5) if required by the standards adopted by the commissioner pursuant to section 22a-133k, an environmental land use restriction has not been recorded in accordance with section 22a-133o or there has been a failure to comply with the provisions of such a restriction, (6) for a property subject to the brownfield plan and remediation schedule, the commissioner does not approve a detailed written plan for remediation, or (7) the prospective buyer or owner fails to pay the fee, including fails to pay in accordance with any payment schedule pursuant to subsection (c) of this section.

      (c) (1) Any prospective purchaser or owner receiving a covenant not to sue pursuant to this section shall pay to the commissioner a fee equal to three per cent of the value of the property for which the covenant was issued provided such property is appraised as if it were uncontaminated. Such fee shall be deposited into the Special Contaminated Property Remediation and Insurance Fund established under section 22a-133t. No such fee shall be required for a covenant issued to a successor in interest to the original covenant, for a covenant issued in connection with a remediation project conducted under section 22a-133m, or for a municipality or municipal economic development agency or a nonprofit economic development corporation formed to promote the common good, general welfare and economic development of a municipality that is funded, either directly or through in-kind services, in part by a municipality and such corporation's officers and directors.

      (2) Notwithstanding any other provision, the commissioner may approve a written payment schedule of the fee set forth in subdivision (1) of subsection (c) of this section, for a prospective purchaser or owner receiving the covenant not to sue and who has a brownfield investigation plan and remediation schedule approved by the commissioner. Any such payment schedule shall be incorporated by reference into the covenant.

      (d) A covenant not to sue issued under this section may provide for continued monitoring in accordance with the remediation standards adopted under section 22a-133k, and, if further remediation is necessary based upon the results of such monitoring, that further action will be taken to remediate the property in accordance with such standards.

      (e) A covenant not to sue issued under this section shall not preclude the commissioner from taking any appropriate action, including, but not limited to, any action to require remediation of the property, if he determines that the covenant not to sue was based on information provided by the person seeking the covenant which information such person knew, or had reason to know, was false or misleading.

      (f) A "brownfield investigation plan and remediation schedule" means a plan and schedule for investigation, and a schedule for remediation, of any abandoned or underutilized site where redevelopment and reuse has not occurred due to the presence of pollution on the soil or groundwater that requires remediation prior to or in conjunction with the restoration, redevelopment and reuse of the property. The commissioner may determine for each property whether the commissioner will oversee the investigation and remediation of the property or whether such oversight will be delegated to a licensed environmental professional. For each property subject to a covenant under this section based on an approved brownfield investigation plan and remediation schedule, the owner or prospective purchaser shall perform all investigation and remediation activities under the direction of a licensed environmental professional, and shall ensure that all documents required to be submitted contain a written approval of a licensed environmental professional, even at properties for which the commissioner has not delegated oversight to a licensed environmental professional. Each investigation plan and remediation schedule shall provide a schedule for activities including, but not limited to, completion of the investigation of the property in accordance with prevailing standards and guidelines, submittal of a complete investigation report, submittal of a detailed written plan for remediation, completion of remediation in accordance with standards adopted by said commissioner pursuant to section 22a-133k, and submittal of a final remedial action report. At a minimum, the detailed written plan for remediation shall be submitted, pursuant to the schedule, for the commissioner's review and, as appropriate, approval. If the commissioner approves the detailed written plan for remediation, the plan shall be considered incorporated by reference into the covenant not to sue. The commissioner may require submittal of other plans and reports for the commissioner's review and approval.

      (P.A. 96-113, S. 10, 17; P.A. 98-253, S. 4; P.A. 07-233, S. 12.)

      History: P.A. 96-113 effective May 24, 1996; P.A. 98-253 authorized covenants with owners of real property under this section, required approval by the commissioner of remediation plans prior to approving covenants, and added provision in Subsec. (b)(4) re failure to comply with restriction provisions; P.A. 07-233 added Subsec. (a)(3) re investigation plan and remediation schedule, added new Subsec. (b)(1) re finding of substantial noncompliance with plan and schedule, redesignated existing Subsec. (b)(1) to (4) as Subsec. (b)(2) to (5), added Subsec. (b)(6) and (7) re nonapproval of remediation plan and failure to pay fee, redesignated existing Subsec. (c) as Subsec. (c)(1), exempted municipalities, municipal economic development agencies and certain nonprofit economic development corporations from fee required in Subsec. (c)(1), added Subsec. (c)(2) re payment schedules, added Subsec. (f) re brownfield investigation plan and remediation schedule and made conforming technical changes, effective July 1, 2007.

      Sec. 22a-134. Transfer of hazardous waste establishments: Definitions. For the purposes of this section and sections 22a-134a to 22a-134d, inclusive:

      (1) "Transfer of establishment" means any transaction or proceeding through which an establishment undergoes a change in ownership, but does not mean:

      (A) Conveyance or extinguishment of an easement;

      (B) Conveyance of an establishment through a foreclosure, as defined in subsection (b) of section 22a-452f or foreclosure of a municipal tax lien or through a tax warrant sale pursuant to section 12-157 or, provided the establishment is within the pilot program established in subsection (c) of section 32-9cc, a subsequent transfer by such municipality that has foreclosed municipal tax liens or that has acquired title to the property through section 12-157;

      (C) Conveyance of a deed in lieu of foreclosure to a lender, as defined in and that qualifies for the secured lender exemption pursuant to subsection (b) of section 22a-452f;

      (D) Conveyance of a security interest, as defined in subdivision (7) of subsection (b) of section 22a-452f;

      (E) Termination of a lease and conveyance, assignment or execution of a lease for a period less than ninety-nine years including conveyance, assignment or execution of a lease with options or similar terms that will extend the period of the leasehold to ninety-nine years, or from the commencement of the leasehold, ninety-nine years, including conveyance, assignment or execution of a lease with options or similar terms that will extend the period of the leasehold to ninety-nine years, or from the commencement of the leasehold;

      (F) Any change in ownership approved by the Probate Court;

      (G) Devolution of title to a surviving joint tenant, or to a trustee, executor or administrator under the terms of a testamentary trust or will, or by intestate succession;

      (H) Corporate reorganization not substantially affecting the ownership of the establishment;

      (I) The issuance of stock or other securities of an entity which owns or operates an establishment;

      (J) The transfer of stock, securities or other ownership interests representing less than forty per cent of the ownership of the entity that owns or operates the establishment;

      (K) Any conveyance of an interest in an establishment where the transferor is the sibling, spouse, child, parent, grandparent, child of a sibling or sibling of a parent of the transferee;

      (L) Conveyance of an interest in an establishment to a trustee of an inter vivos trust created by the transferor solely for the benefit of one or more sibling, spouse, child, parent, grandchild, child of a sibling or sibling of a parent of the transferor;

      (M) Any conveyance of a portion of a parcel upon which portion no establishment is or has been located and upon which there has not occurred a discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste, provided either the area of such portion is not greater than fifty per cent of the area of such parcel or written notice of such proposed conveyance and an environmental condition assessment form for such parcel is provided to the commissioner sixty days prior to such conveyance;

      (N) Conveyance of a service station, as defined in subdivision (5) of this section;

      (O) Any conveyance of an establishment which, prior to July 1, 1997, had been developed solely for residential use and such use has not changed;

      (P) Any conveyance of an establishment to any entity created or operating under chapter 130 or 132, or to an urban rehabilitation agency, as defined in section 8-292, or to a municipality under section 32-224, or to the Connecticut Development Authority or any subsidiary of the authority;

      (Q) Any conveyance of a parcel in connection with the acquisition of properties to effectuate the development of the overall project, as defined in section 32-651;

      (R) The conversion of a general or limited partnership to a limited liability company under section 34-199;

      (S) The transfer of general partnership property held in the names of all of its general partners to a general partnership which includes as general partners immediately after the transfer all of the same persons as were general partners immediately prior to the transfer;

      (T) The transfer of general partnership property held in the names of all of its general partners to a limited liability company which includes as members immediately after the transfer all of the same persons as were general partners immediately prior to the transfer;

      (U) Acquisition of an establishment by any governmental or quasi-governmental condemning authority;

      (V) Conveyance of any real property or business operation that would qualify as an establishment solely as a result of (i) the generation of more than one hundred kilograms of universal waste in a calendar month, (ii) the storage, handling or transportation of universal waste generated at a different location, or (iii) activities undertaken at a universal waste transfer facility, provided any such real property or business operation does not otherwise qualify as an establishment, that there has been no discharge, spillage, uncontrolled loss, seepage or filtration of a universal waste or a constituent of universal waste that is a hazardous substance at or from such real property or business operation and that universal waste is not also recycled, treated, except for treatment of a universal waste pursuant to 40 CFR 273.13(a)(2) or (c)(2) or 40 CFR 273.33 (a)(2) or (c)(2), or disposed of at such real property or business operation; or

      (W) Conveyance of a unit in a residential common interest community in accordance with section 22a-134i;

      (2) "Commissioner" means the Commissioner of Environmental Protection or the designated agent of the commissioner;

      (3) "Establishment" means any real property at which or any business operation from which (A) on or after November 19, 1980, there was generated, except as the result of remediation of polluted soil, groundwater or sediment, more than one hundred kilograms of hazardous waste in any one month, (B) hazardous waste generated at a different location was recycled, reclaimed, reused, stored, handled, treated, transported or disposed of, (C) the process of dry cleaning was conducted on or after May 1, 1967, (D) furniture stripping was conducted on or after May 1, 1967, or (E) a vehicle body repair facility was located on or after May 1, 1967;

      (4) "Hazardous waste" means any waste which is (A) hazardous waste identified in accordance with Section 3001 of the federal Resource Conservation and Recovery Act of 1976, 42 USC 6901 et seq., (B) hazardous waste identified by regulations adopted by the Commissioner of Environmental Protection, or (C) polychlorinated biphenyls in concentrations greater than fifty parts per million except that sewage, sewage sludge and lead paint abatement wastes shall not be considered to be hazardous waste for the purposes of this section and sections 22a-134a to 22a-134d, inclusive;

      (5) "Service station" means a retail operation involving the resale of motor vehicle fuel including, but not limited to, gasoline, diesel fuel and kerosene and which operation does not otherwise meet the definition of an establishment;

      (6) "Certifying party" means, in the case of a Form III or Form IV, a person associated with the transfer of an establishment who signs a Form III or Form IV and who agrees to investigate the parcel in accordance with prevailing standards and guidelines and to remediate pollution caused by any release at the establishment in accordance with the remediation standards and, in the case of a Form I or Form II, a transferor of an establishment who signs the certification on a Form I or II;

      (7) "Party associated with the transfer of an establishment" means (A) the present or past owner or operator of the establishment, (B) the owner of the real property on which the establishment is located, (C) the transferor, transferee, lender, guarantor or indemnitor, (D) the business entity which operates or operated the establishment, or (E) the state;

      (8) "Remediation standards" means regulations adopted by the commissioner pursuant to section 22a-133k;

      (9) "Parcel" means piece, parcel or tract of land which constitutes an establishment, as defined in subdivision (3) of this section, or on which is or was located any business operation which constitutes an establishment;

      (10) "Form I" means a written certification by the transferor of an establishment on a form prescribed and provided by the commissioner that: (A) No discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste or a hazardous substance has occurred at the establishment which certification is based on an investigation of the parcel in accordance with prevailing standards and guidelines, or (B) no discharge spillage, uncontrolled loss, seepage or filtration of hazardous waste has occurred at the establishment based upon an investigation of the parcel in accordance with the prevailing standards and guidelines and the commissioner has determined, in writing, or a licensed environmental professional has verified, in writing, that any discharge, spillage, uncontrolled loss, seepage or filtration of a hazardous substance has been remediated in accordance with the remediation standards and that since any such written approval or verification, including any approval or verification for a portion of an establishment, no discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste or hazardous substances has occurred at any portion of the establishment;

      (11) "Form II" means a written certification by the transferor of an establishment on a form prescribed and provided by the commissioner that the parcel has been investigated in accordance with prevailing standards and guidelines and that (A) any pollution caused by a discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste or a hazardous substance which has occurred from the establishment has been remediated in accordance with the remediation standards and that the remediation has been approved in writing by the commissioner or has been verified pursuant to section 22a-133x or section 22a-134a in writing attached to such form by a licensed environmental professional to have been performed in accordance with the remediation standards and that since any such written approval or verification, including any approval or verification for a portion of an establishment, no discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste or hazardous substances has occurred at any portion of the establishment, (B) the commissioner has determined in writing or a licensed environmental professional has verified pursuant to section 22a-133x or section 22a-134a in writing, attached to the form that no remediation is necessary to achieve compliance with the remediation standards, or (C) a Form IV verification was previously submitted to the commissioner and, since the date of the submission of the Form IV, no discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste or a hazardous substance has occurred at the establishment, which certification is based on an investigation of the parcel in accordance with prevailing standards and guidelines;

      (12) "Form III" means a written certification signed by a certifying party on a form prescribed and provided by the commissioner, which certification states that (A) a discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste or a hazardous substance has occurred at the establishment or the environmental conditions at the establishment are unknown, and (B) that the person signing the certification agrees to investigate the parcel in accordance with prevailing standards and guidelines and to remediate pollution caused by any release of a hazardous waste or hazardous substance from the establishment in accordance with the remediation standards;

      (13) "Form IV" means a written certification signed by one or more certifying parties on a form prescribed and provided by the commissioner and which is accompanied by a written determination by the commissioner or by a verification by a licensed environmental professional pursuant to section 22a-134a or 22a-133x, which certification states and is accompanied by documentation demonstrating that the parcel has been investigated in accordance with prevailing standards and guidelines and that (A) there has been a discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste or a hazardous substance on the establishment, and (B) all actions to remediate any pollution caused by any release at the establishment have been taken in accordance with the remediation standards except postremediation monitoring, natural attenuation monitoring or the recording of an environmental land use restriction, and (C) the person or persons signing the certification agree, in accordance with the representations made in the form, to conduct postremediation monitoring or natural attenuation monitoring in accordance with the remediation standards and if further investigation and remediation are necessary to take further action to investigate the establishment in accordance with prevailing standards and guidelines and to remediate the establishment in accordance with the remediation standards;

      (14) "Person" means person, as defined in section 22a-2;

      (15) "Remediate" means to contain, remove or abate pollution, potential sources of pollution and substances in soil or sediment which pose an unacceptable risk to human health or the environment and includes, but is not limited to, the reduction of pollution by natural attenuation;

      (16) "Licensed environmental professional" means an environmental professional licensed pursuant to section 22a-133v;

      (17) "Environmental condition assessment form" means a form prescribed and provided by the commissioner, prepared under the supervision of a licensed environmental professional, and executed by (A) the certifying party under sections 22a-134 to 22a-134e, inclusive, or (B) the owner of the property under section 22a-133x which form describes the environmental conditions at the parcel;

      (18) "Pollution" means pollution, as defined in section 22a-423;

      (19) "Verification" means the rendering of a written opinion by a licensed environmental professional on a form prescribed by the commissioner that an investigation of the parcel has been performed in accordance with prevailing standards and guidelines and that the establishment has been remediated in accordance with the remediation standards;

      (20) "Vehicle" means any motorized device for conveying persons or objects except for an aircraft, boat, railroad car or engine, or farm tractor;

      (21) "Business operation" means any business that has, or any series of substantially similar businesses that have, operated continuously or with only brief interruption on the same parcel, either with a single owner or successive owners;

      (22) "Corporate reorganization not substantially affecting the ownership of an establishment" means implementation of a business plan to restructure a corporation through a merger, spin-off or other plan or reorganization under which the direct owner of the establishment does not change;

      (23) "Form IV verification" means the rendering of a written opinion by a licensed environmental professional, after a Form IV has been filed, that postremediation monitoring, natural attenuation or the recording of an environmental land use restriction has been completed in accordance with the Form IV;

      (24) "Hazardous substance" means hazardous substance, as defined in Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 USC 9601, or a petroleum product or by-product for which there are remediation standards adopted pursuant to section 22a-133k or for which such remediation standards have a process for calculating the numeric criteria of such substance;

      (25) "Sediment" means unconsolidated material occurring in a stream, pond, wetland estuary or other water body;

      (26) "Universal waste" means batteries, pesticides, thermostats, lamps and used electronics regulated as a universal waste under regulations adopted pursuant to subsection (c) of section 22a-449. "Universal waste" does not mean (A) batteries, pesticides, thermostats and lamps that are not covered under 40 CFR Part 273, or (B) used electronics that are not regulated as a universal waste under regulations adopted pursuant to subsection (c) of section 22a-449;

      (27) "Universal waste transfer facility" means any facility related to transportation, including loading docks, parking areas, storage areas and other similar areas where shipments of universal waste are held during the normal course of transportation for ten days or less.

      (P.A. 85-568, S. 2; P.A. 87-475, S. 1; P.A. 95-183, S. 1; P.A. 96-113, S. 1, 17; P.A. 97-218, S. 1; P.A. 98-253, S. 2; Dec. Sp. Sess. P.A. 98-1, S. 35, 43; P.A. 99-225, S. 6; 99-241, S. 56, 66; P.A. 00-140, S. 24, 40; P.A. 01-204, S. 15; June Sp. Sess. P.A. 01-9, S. 73, 131; P.A. 03-19, S. 58-61; 03-218, S. 5, 6; P.A. 06-76, S. 11, 13, 14; 06-184, S. 3; P.A. 07-81, S. 3.)

      History: P.A. 87-475 redefined "establishment" to apply to those operating on or after May 1, 1967, and to include dry cleaning, furniture stripping, painting and auto body operations and added definitions of "service stations" and "transfer of a service station"; P.A. 95-183 added Subdiv. (1) (A) to (M), inclusive, re exclusions from the definition of "transfer of establishment"; amended Subdiv. (3) to redefine "establishment" to mean any real property or business operation from which on and after November 1, 1980, there was generated, except as the result of remediation activities, more than 100 kilograms of hazardous waste in any one month and to make other grammatical adjustments for consistency; amended Subdiv. (4) to redefine "hazardous waste" to include waste identified in accordance with the federal Resource Conservation and Recovery Act or by the commissioner in regulations and polychlorinated biphenyls in concentrations greater than 50 parts per million and to exclude lead paint abatement wastes; deleted former Subdiv. (5) defining "negative declaration" and renumbered the remaining Subdivs. accordingly; amended the renumbered Subdiv. (5) to specify that "service station" means a retail operation which does not otherwise meet the definition of "establishment"; amended the renumbered Subdiv. (6) to add Subparas. (A) to (M), inclusive, re exclusions from the definition of "transfer of a service station"; and added new Subdivs. (7) to (20), inclusive, providing definitions for "certifying party", "party associated with the transfer of an establishment", "remediation standards", "parcel", "Form I", "Form II", "Form III", "Form IV", "person", "remediate", "licensed environmental professional", "environmental condition assessment form", "pollution", and "verification"; P.A. 96-113 redefined "transfer of establishment" to add provision re providing environmental condition assessment form to commissioner for conveyance of certain portions of parcels and to exclude conveyances of service stations, redefined "establishment" to make technical clarifications, deleted a definition of "transfer of a service station", redefined "party" to explicitly include former operators of establishments and the state, redefined "Form II" to add provision re determination that no remediation is necessary, redefined "Form IV" to add provision re accompanying documentation and added the definition of "vehicle", renumbering Subdivs. as necessary, effective May 24, 1996; P.A. 97-218 redefined "transfer of establishment" in Subdiv. (1) to exclude conveyances of parcels developed solely for residential use prior to July 1, 1997, where such use has not changed; amended Subdiv. (3)(B) to provide that in that category of "establishment", the waste is generated at a different location; redefined "certifying party" in Subdiv. (6) to specify that investigation of parcel be in accordance with prevailing standards and guidelines and that remediation be in accordance with the remediation standards; redefined "form I" in Subdiv. (10) to clarify that declaration is based on an investigation of the property in accordance with the prevailing standards and guidelines; redefined "form II" in Subdiv. (11) to provide that remediation of the parcel is in accordance with the remediation standards; redefined "form III" in Subdiv. (12) to provide that the investigation is in accordance with prevailing standards and guidelines; and redefined "form IV" in Subdiv. (13) to provide that the certification be accompanied by a determination by the commissioner or a licensed environmental professional under Secs. 22a-134a or 22a-133x and that the investigation is in accordance with prevailing standards and guidelines; P.A. 98-253 added Subdiv. (l)(P) excluding from the definition of "transfer of establishment" conveyances to certain state or municipal agencies; Dec. Sp. Sess. P.A. 98-1 added Subdiv. (1)(Q) re conveyance to a limited liability company established to assemble properties to effectuate the purposes of the Patriots Stadium Enabling Act, effective January 12, 1999; P.A. 99-225 deleted said Subdiv. (1)(Q) and added new Subparas. (Q), (R) and (S) regarding exemptions for certain transactions involving certain partnership properties, amended Subdiv. (3) to clarify a provision excepting remediation activities from the definition of "establishment", and amended Subdivs. (6), (10), (11), (12), and (13) to require adoption of regulations on or before January 1, 2002, providing standards for investigation of contaminated parcels; P.A. 99-241 deleted Subdiv. (1)(Q) re conveyance of parcel to limited liability company established to assemble properties to effectuate purposes of the Patriots Stadium Enabling Act, and added a limited liability company established to assemble properties for development of the convention center facilities, sportsplex and related parking facilities site, effective July 1, 1999 (Revisor's note: In codifying the provisions of P.A. 99-225 and 99-241, as they affect Subdiv. (1), the Revisors retained the words "or (Q) any conveyance of a parcel", which were deleted by P.A. 99-225, so as to add the amendment to Subpara. (Q) contained in P.A. 99-241, and relettered new Subparas. (Q), (R) and (S), contained in P.A. 99-225, to (R), (S) and (T), respectively); P.A. 00-140 amended Subdiv. (1)(Q) to make a technical change, substitute "acquisition" for "assembly", delete references to former convention center facilities, sportsplex and related parking facilities and add reference to the overall project as defined in Sec. 32-651, effective May 2, 2000; P.A. 01-204 redefined "transfer of establishment", "establishment", "certifying party", "party associated with the transfer of an establishment", "Form I", "Form II", "Form III", "Form IV", "environmental condition assessment form", "verification" and "vehicle", defined "business operation", "corporate reorganization not substantially affecting the ownership of an establishment", "Form IV verification", "hazardous substance" and "sediment", and made technical changes; June Sp. Sess. 01-9 revised effective date of P.A. 01-204 but without affecting this section; P.A. 03-218 amended Subdiv. (1)(B) by adding "or foreclosure of a municipal tax lien" and made a technical change (1)(E), amended Subdiv. (10)(B) by adding "based on an investigation of the parcel in accordance with the prevailing standards and guidelines", and amended Subdiv. (11) by making technical changes and, in Subpara. (C), by adding "verification", effective July 1, 2003; P.A. 03-19 made technical changes in Subdivs. (1), (11), (21) and (24), effective May 12, 2003; P.A. 06-76 amended Subdiv. (1) to make technical changes, to add Subpara. (V) re universal waste, and to add Subpara. (W) re residential common interest community, amended Subdiv. (10) to require verification from licensed environmental professional to be in writing, amended Subdivs. (10) and (11)(A) to require additional verification that no discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste or substances has occurred at any portion of the establishment, and added Subdivs. (26) and (27) defining "universal waste" and "universal waste transfer facility", respectively; P.A. 06-184 amended Subdiv. (1)(B) by redefining "transfer of establishment" to include tax warrant sales pursuant to Sec. 12-157, effective June 9, 2006; P.A. 07-81 amended Subdiv. (19) to redefine "verification" to require that written opinion be on a form prescribed by commissioner.

      Sec. 22a-134a. Transfer of hazardous waste establishments: Filing procedures. Certification of cleanup. (a) No person shall transfer an establishment except in accordance with the provisions of sections 22a-134 to 22a-134e, inclusive. Notwithstanding any provision of sections 22a-134 to 22a-134e, inclusive, a person appointed by the Superior Court or any other court to sell, convey or partition real property or a person appointed as a trustee in bankruptcy shall not be deemed a party associated with the transfer of an establishment and shall not be required to comply with the provisions of sections 22a-134 to 22a-134e, inclusive.

      (b) The commissioner may adopt regulations, in accordance with the provisions of chapter 54, to implement the provisions of this section.

      (c) Prior to transferring an establishment, the transferor shall submit to the transferee a complete Form I or a Form II and, no later than ten days after the transfer, shall submit a copy of such Form I or Form II to the commissioner. The commissioner shall notify the transferor no later than ninety days after the submission of such Form I or Form II if the commissioner deems the Form I or Form II incomplete. If the transferor is unable to submit a Form I or a Form II to the transferee, the transferor shall, prior to the transfer, submit a complete Form III or Form IV prepared and signed by a party associated with the transfer to the transferee and, no later than ten days after the transfer, shall submit a copy of such Form III or Form IV to the commissioner. If no other party associated with the transfer of an establishment prepares and signs the proper form as a certifying party, the transferor shall have the obligation for such preparation and signing.

      (d) The certifying party to a Form I, Form II, Form III or Form IV shall (1) upon receipt of a written request from the commissioner, provide to the commissioner copies of all technical plans, reports and other supporting documentation relating to the investigation of the parcel or remediation of the establishment as specified in the commissioner's written request, and (2) simultaneously submit with the submission of a Form I, Form III or Form IV to the commissioner a complete environmental condition assessment form and shall certify to the commissioner, in writing, that the information contained in such form is correct and accurate to the best of the certifying party's knowledge and belief.

      (e) Not later than thirty days after receipt of a Form III or Form IV, the commissioner shall notify the certifying party whether the form is complete or incomplete. The certifying party shall use a licensed environmental professional to verify the investigation and remediation, unless not later than seventy-five days after receipt of a complete Form III or IV the commissioner notifies the certifying party, in writing, that review and approval of the remediation by the commissioner shall be required. Any person who submitted a Form III to the commissioner prior to October 1, 1995, may submit an environmental condition assessment form to the commissioner. The commissioner shall, not later than forty-five days after receipt of such form, notify the certifying party whether approval of the remediation by the commissioner will be required or whether a licensed environmental professional may verify that the investigation was performed in accordance with prevailing standards and guidelines and the remediation has been performed in accordance with the remediation standards.

      (f) In determining whether review and approval of the remediation by the commissioner will be required, or whether a licensed environmental professional may verify that the remediation has been performed in accordance with the remediation standards, the commissioner shall consider: (1) The potential risk to human health and the environment posed by any discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste or a hazardous substance at the establishment; (2) the degree of environmental investigation at the parcel; (3) the proximity of the establishment to significant natural resources; (4) the character of the land uses surrounding the establishment; (5) the complexity of the environmental condition of the establishment; and (6) any other factor the commissioner deems relevant.

      (g) (1) Except as provided in subsection (h) of this section, the certifying party to a Form III or Form IV shall, on or before seventy-five days after the receipt of the notice that such form is complete or such later date as may be approved in writing by the commissioner, submit a schedule for the investigation of the parcel and remediation of the establishment. Such schedule shall, unless a later date is specified in writing by the commissioner, provide that the investigation shall be completed within two years of the date of receipt of such notice and that remediation shall be initiated within three years of the date of receipt of such notice. The schedule shall also include a schedule for providing public notice of the remediation prior to the initiation of such remediation in accordance with subsection (i) of this section. Not later than two years after the date of the receipt of the notice that the Form III or Form IV is complete, unless the commissioner has specified a later day, in writing, the certifying party shall submit to the commissioner documentation, approved in writing by a licensed environmental professional and in a form prescribed by the commissioner, that the investigation has been completed in accordance with prevailing standards and guidelines. Not later than three years after the date of the receipt of the notice that the Form III or Form IV is complete, unless the commissioner has specified a later day in writing, the certifying party shall notify the commissioner in a form prescribed by the commissioner that the remediation has been initiated, and shall submit to the commissioner a remedial action plan approved in writing by a licensed environmental professional in a form prescribed by the commissioner. Notwithstanding any other provision of this section, the commissioner may determine at any time that the commissioner's review and written approval is necessary and in such case shall notify the certifying party that the commissioner's review and written approval is necessary. Such certifying party shall investigate the parcel and remediate the establishment in accordance with the proposed schedule or the schedule specified by the commissioner. When remediation of the entire establishment is complete, the certifying party shall submit to the commissioner a final verification by a licensed environmental professional. Any such final verification may include and rely upon a verification for a portion of the establishment submitted pursuant to subdivision (2) of this subsection. Verifications shall be submitted on a form prescribed by the commissioner.

      (2) If a certifying party completes the remediation for a portion of an establishment, such party may submit a verification by a licensed environmental professional for any such portion of an establishment. The certifying party shall be deemed to have satisfied the requirements of this subsection for that portion of the establishment covered by any such verification. If any portion of an establishment for which a verification is submitted pursuant to this subdivision is transferred, conveyed or undergoes a change in ownership before remediation of the entire establishment is complete that would not otherwise be subject to the provisions of sections 22a-134 to 22a-134e, inclusive, then the certifying party shall provide notice to the commissioner of such transfer, conveyance or change in ownership not later than thirty days of any such transfer, conveyance or change in ownership.

      (3) (A) The commissioner may conduct an audit of any verification submitted pursuant to this section, but shall not conduct an audit of a final verification of an entire establishment submitted pursuant to subdivision (1) of this subsection after three years have passed since the date of the commissioner's receipt of such final verification unless an exception listed in subparagraph (C) of subdivision (3) of this subsection applies. Upon completion of an audit, the commissioner shall send written audit findings to the certifying party and the licensed environmental professional who verified. The three-year time frame for an audit of a final verification of an entire establishment shall apply to such final verifications received by the commissioner after October 1, 2007.

      (B) The commissioner may request additional information during an audit. If such information has not been provided to the commissioner within ninety days of the commissioner's request for such information or any longer time as the commissioner may determine in writing, the commissioner may either (i) suspend the audit, which for a final verification shall suspend the running of the three-year audit time frame until such time as the commissioner receives all the information requested, or (ii) complete the audit based upon the information provided in the verification before the request for additional information.

      (C) The commissioner shall not conduct an audit of a final verification of an entire establishment after three years from receipt of such verification pursuant to this subdivision unless (i) the commissioner has reason to believe that a verification was obtained through the submittal of materially inaccurate or erroneous information, or otherwise misleading information material to the verification or that misrepresentations were made in connection with the submittal of the verification, (ii) a verification is submitted pursuant to an order of the commissioner pursuant to subdivision (j) of section 22a-134a, (iii) any post-verification monitoring, or operations and maintenance, is required as part of a verification and which has not been done, (iv) a verification that relies upon an environmental land use restriction was not recorded on the land records of the municipality in which such land is located in accordance with section 22a-133o and applicable regulations, (v) the commissioner determines that there has been a violation of sections 22a-134 to 22a-134e, or (vi) the commissioner determines that information exists indicating that the remediation may have failed to prevent a substantial threat to public health or the environment.

      (h) (1) If the commissioner notifies the certifying party to a Form III or Form IV that the commissioner's review and written approval of the investigation of the parcel and remediation of the establishment is required, such certifying party shall, on or before thirty days of the receipt of such notice or such later date as may be approved in writing by the commissioner, submit for the commissioner's review and written approval a proposed schedule for: (A) Investigating the parcel and remediating the establishment; (B) submitting to the commissioner scopes of work, technical plans, technical reports and progress reports related to such investigation and remediation; and (C) providing public notice of the remediation prior to the initiation of such remediation in accordance with subsection (i) of this section. Upon the commissioner's approval of such schedule, such certifying party shall, in accordance with the approved schedule, submit scopes of work, technical plans, technical reports and progress reports to the commissioner for the commissioner's review and written approval. Such certifying party shall perform all actions identified in the approved scopes of work, technical plans, technical reports and progress reports in accordance with the approved schedule. The commissioner may approve in writing any modification proposed in writing by such certifying party to such schedule or investigation and remediation. The commissioner may, at any time, notify such certifying party in writing that the commissioner's review and written approval is not required and that a licensed environmental professional may verify that the remediation has been performed in accordance with the remediation standards.

      (2) A certifying party may complete the remediation of a portion of an establishment and request that the commissioner determine that the requirements of this subsection have been satisfied for any such portion of the establishment. If the commissioner determines that any such remediation is complete, the certifying party shall be deemed to have satisfied the requirements of this subsection for any such portion of an establishment. Any determination by the commissioner that remediation at the entire establishment has been completed may include and rely upon any determination made pursuant to this subdivision that remediation is complete at a portion of an establishment. If any portion of an establishment for which the commissioner determines that remediation is complete pursuant to this subdivision is transferred, conveyed or undergoes a change in ownership before remediation of the entire establishment is complete that would not otherwise be subject to the provisions of sections 22a-134 to 22a-134e, inclusive, then the certifying party shall provide notice to the commissioner of such transfer, conveyance or change in ownership not later than thirty days of any such transfer, conveyance or change in ownership.

      (i) The certifying party to a Form III or Form IV shall (1) publish notice of the remediation, in accordance with the schedule submitted pursuant to this section, in a newspaper having a substantial circulation in the area affected by the establishment, (2) notify the director of health of the municipality where the establishment is located of the remediation, and (3) either (A) erect and maintain for at least thirty days in a legible condition a sign not less than six feet by four feet on the establishment, which sign shall be clearly visible from the public highway, and shall include the words "ENVIRONMENTAL CLEAN-UP IN PROGRESS AT THIS SITE. FOR FURTHER INFORMATION CONTACT:" and include a telephone number for an office from which any interested person may obtain additional information about the remediation, or (B) mail notice of the remediation to each owner of record of property which abuts the parcel, at the address for such property on the last-completed grand list of the municipality where the establishment is located.

      (j) The commissioner may issue an order to any person who fails to comply with any provision of sections 22a-134 to 22a-134e, inclusive, including, but not limited to, any person who fails to file a form, or files an incomplete or incorrect form or to any person who fails to carry out any activities to which that person agreed in a Form III or Form IV. If no form is filed or if an incomplete or incorrect form is filed for a transfer of an establishment, the commissioner may issue an order to the transferor, the transferee, or both, requiring a filing. The commissioner may also request that the Attorney General bring an action in the superior court for the judicial district of Hartford to enjoin any person who fails to comply with any provision of sections 22a-134 to 22a-134e, inclusive, including, but not limited to, any person who fails to file a form, improperly files a Form I, Form II, Form III or Form IV or the certifying party to a Form III or Form IV to take any actions necessary to prevent or abate any pollution at, or emanating from, the subject establishment. Any person to whom such an order is issued may appeal such order in accordance with the procedures set forth in sections 22a-436 and 22a-437.

      (k) Notwithstanding the exemptions provided in section 22a-134a, nothing contained in sections 22a-134 to 22a-134e, inclusive, shall be construed as creating an innocent landowner defense for purposes of section 22a-452d.

      (l) Notwithstanding any other provisions of this section, no person shall be required to comply with the provisions of sections 22a-134 to 22a-134e, inclusive, when transferring real property (1) (A) for which a Form I or Form II has been filed for the transfer of the parcel on or after October 1, 1995, or (B) for which parcel a Form III or Form IV has been filed and which has been remediated and such remediation has been approved in writing by the commissioner or has been verified in writing in accordance with this section by a licensed environmental professional that an investigation has been performed in accordance with prevailing standards and guidelines and that the remediation has been performed in accordance with the remediation standards, and (2) at which no activities described in subdivision (3) of section 22a-134 have been conducted since the date of such approval or verification or the date on which the Form I or Form II was filed.

      (m) Failure of the commissioner to notify any party in accordance with the provisions of this section in no way limits the ability of the commissioner to enforce the provisions of sections 22a-134 to 22a-134e, inclusive.

      (P.A. 85-568, S. 3; P.A. 87-475, S. 2; 87-589, S. 49, 87; P.A. 88-230, S. 1, 12; P.A. 90-98, S. 1, 2; P.A. 93-142, S. 4, 7, 8; P.A. 95-183, S. 2; 95-220, S. 4-6; P.A. 96-113, S. 2, 6, 17; P.A. 99-225, S. 7, 8; P.A. 01-204, S. 16; June Sp. Sess. P.A. 01-9, S. 73, 131; P.A. 03-19, S. 62; 03-82, S. 1; 03-218, S. 7-9; P.A. 06-76, S. 15; P.A. 07-81, S. 4; 07-233, S. 10.)

      History: P.A. 87-475 added Subsec. (d) regarding liens against real estate on which a service station was transferred and in operation on or after May 1, 1967, and added Subsec. (e) authorizing the commissioner to adopt regulations; P.A. 87-589 made technical changes in Subsec. (d); P.A. 95-183 amended Subsec. (a) to add a reference to Sec. 22a-134e, deleted former Subsecs. (b) and (c) and relettered the remaining Subsecs. accordingly, amended the relettered Subsec. (b) to change "cleaned up" to "remediated", added new Subsec. (d) re submittal of Form I or II, new Subsec. (e) re submittal of Form II or IV, new Subsec. (f) re review of Form III or IV, new Subsec. (g) re verification of forms by environmental professional, new Subsecs. (h) and (i) re a schedule for remediation, new Subsec. (j) re notice of remediation, new Subsec. (k) re orders to file or remediate, new Subsec. (l) re construction of the Transfer Act with regard to innocent landowners and new Subsec. (m) re transfers covered by previous filings (Revisor's note: P.A. 88-230, 90-98, 93-142 and 95-220 authorized substitution of "judicial district of Hartford" for "judicial district of Hartford-New Britain" in public and special acts of the 1995 session of the General Assembly, effective September 1, 1998); P.A. 96-113 amended Subsec. (d) to provide that a transferor shall submit a copy of any Form III or IV to the transferee and amended Subsec. (k) to expand range of orders authorized under that subsection, effective May 24, 1996; P.A. 99-225 amended Subsec. (f) to require verification of investigations and to require adoption of regulations on or before January 1, 2002, providing standards for investigation of contaminated parcels and amended Subsec. (m) to provide that eligibility for the exemption under that subsection on the basis of a filing of a Form I or II is limited to filings of such forms after October 1, 1995, to require verification of investigations by licensed environmental professionals and to require adoption of regulations before January 1, 2002, providing standards for investigation of contaminated parcels; P.A. 01-204 deleted former Subsec. (b) re liens pursuant to Sec. 22a-452 and redesignated existing Subsecs. (c) to (m) as Subsecs. (b) to (l), amended Subsec. (c) to clarify that a Form I or II submission must be complete, require the commissioner to notify the transferor no later than 90 days after the submission of a Form I or Form II if the commissioner deems the Form I or Form II incomplete, require the transferor, rather than the certifying party, to submit a complete Form III or Form IV if the transferor is unable to submit a Form I or Form II, require such Form III or Form IV to be prepared and signed by a party associated with the transfer, and require the transferor to prepare and sign the proper form if no other party associated with the transfer does so, amended Subsec. (d) to require the certifying party to a Form I, Form III or Form IV, if requested in writing by the commissioner, to submit copies of technical plans, reports and other supporting documentation of the investigation of the parcel or remediation of the establishment and make a technical change for purposes of gender neutrality, amended Subdiv. (e) to change the commissioner's notification deadline from within 15 days of receipt to no later than 30 days after receipt, make a technical change for purposes of gender neutrality, eliminate the requirement for adoption of regulations on or before January 1, 2002, and delete provision re parcels subject to an order, consent order, or stipulated judgment, amended Subsec. (f) to include a hazardous substance at the establishment in Subdiv. (1) and to substitute "establishment" for "parcel" in Subdivs. (3) to (5), amended Subsec. (g) to make the subsection applicable to a certifying party to a Form III or Form IV, require the certifying party to submit a schedule for investigating and remediating the establishment, rather than the parcel, require the commissioner to notify the certifying party if the commissioner determines that the commissioner's review and written approval is necessary, delete provisions re submission of copies of technical plans and reports, provide that the certifying party shall investigate the parcel and remediate the establishment, require the certifying party to submit a verification that the establishment has been remediated, require that the certifying party submit, as applicable, a Form IV verification and make technical changes, amended Subsec. (h) to apply to certifying parties to a Form III or Form IV, provide that commissioner's notification state approval of the investigation of the parcel and remediation of the establishment is required, provide that schedule is to apply to the investigation of the parcel and remediation of the establishment, provide that the certifying party is to submit a schedule for the submission for scopes of work and submit the scopes of work, and make technical changes, amended Subsec. (i) to apply to certifying parties to a Form III or Form IV and, in Subdivs. (2) and (3), to substitute "establishment" for "parcel", amended Subsec. (j) to allow the commissioner to issue an order to any person who fails to file a form or files an incomplete or incorrect form, allow the commissioner to issue an order to the transferor or transferee, or both, requiring a filing, substitute "establishment" for "parcel" and make conforming changes, amended Subsec. (l) to make technical changes and delete requirement for adoption of regulations on or before January 1, 2002, and added Subsec. (m) re failure of commissioner to comply with notice provisions of section does not limit commissioner's ability to enforce provisions of the Transfer Act; June Sp. Sess. P.A. 01-9 revised effective date of P.A. 01-204 but without affecting this section; P.A. 03-19 made a technical change in Subsec. (l), effective May 12, 2003; P.A. 03-82 amended Subsec. (a) by adding provision re person appointed by court to sell, convey or partition real property or as a trustee in bankruptcy shall not be deemed a party associated with the transfer of an establishment and shall not be required to comply with Secs. 22a-134 to 22a-134e; P.A. 03-218 added "Form II" to the introductory language in Subsec. (d), amended Subsec. (d)(2) by replacing "Form II" with "Form III", replaced "establishment" with "parcel" in Subsec. (i)(3)(B), and replaced "22a-134f" with "22a-134e" in Subsec. (m), effective July 1, 2003; P.A. 06-76 amended Subsec. (g) to designate existing language as Subdiv. (1), make a technical change, add provision re schedule specified by commissioner, replace provision re submission of independent verification with language re submission of a final verification and reliance on verification for a portion of the establishment and add Subdiv. (2) re remediation of a portion of an establishment, and amended Subsec. (h) to designate existing language as Subdiv. (1), make technical changes and add Subdiv. (2) re remediation of a portion of an establishment; P.A. 07-81 amended Subsec. (e) to provide that certifying party shall use a licensed environmental professional for verification unless notified that commissioner's review is required, to require that investigation be performed in accordance with prevailing standards and guidelines and to make technical changes, amended Subsec. (g)(1) to add reference to Subsec. (h) as an exception, to change deadline for submission of schedule from 30 to 75 days after receipt of the notice, to add provisions re deadlines of 2 years and 3 years, respectively, for notification of completion of the investigation or initiation of the remediation, to specify that commissioner's review may be required at any time and to make technical changes, and amended Subsec. (k) to replace reference to Sec. 22a-134(a) with reference to Sec. 22a-134a; P.A. 07-233 amended Subsec. (e) to require certifying party to use a licensed environmental professional to verify investigation and remediation, to add exception for review required by the commissioner, to require commissioner to respond not later than 45 days after receipt of an environmental condition assessment form from anyone who submitted a Form III before October 1, 1995, re whether a licensed environmental professional can be used, and to add to the licensed environmental professional's charge in such cases verification that investigation was done according to prevailing standards and guidelines, amended Subsec. (g) to add exception as provided in Subsec. (h), to give certifying party 75, rather than 30, days to submit investigation and remediation schedule, to provide that the 75 days starts upon notice that form is complete, to require certifying party to provide commissioner with documentation that investigation and a remedial action plan are done, and to allow commissioner to prescribe the form for all verifications, and added Subsec. (e)(3) re audits, effective July 1, 2007.

      Sec. 22a-134i. Transfer of hazardous waste establishments. Conveyance of a unit in a residential common interest community. (a) Notwithstanding the provisions of this chapter, a conveyance of a unit in a residential common interest community shall not be subject to the requirements of sections 22a-134 to 22a-133e, inclusive, provided the declarant for the residential common interest community of which the unit is a part is a certifying party, as defined in section 22a-134, for purposes of remediation of any establishment, as defined in section 22a-134, within such community and provides to the Commissioner of Environmental Protection a surety bond or other form of financial assurance acceptable to the commissioner.

      (b) The surety bond or other form of financial assurance required pursuant to subsection (a) of this section shall (1) identify both the Department of Environmental Protection and the unit owners association for the common interest community as beneficiaries, and (2) be in an amount and in a form approved by the commissioner that is, at all times when the real property comprising the common interest community is an establishment, equal to the cost of remediation of the contaminants on the subject property. In calculating such remediation costs, the amount of the bond or other form of financial assurance may be reduced from time to time as work covered by the bond is completed, may exclude the costs of any improvements to the real estate not required to remediate the contamination, and may exclude the costs of remediation work already completed or on parcels of real estate that may be added to the common interest community by the exercise of development rights pursuant to section 47-229.

      (c) Each time a seller conveys to a purchaser a unit in a common interest community that is an establishment, the seller shall provide a notice to the purchaser that summarizes (1) the status of the environmental condition of the common interest community, (2) any investigation or remediation activities, and (3) any environmental land use restrictions. Such notice requirement applies to all such conveyances, including those conveyances otherwise excepted from the requirement for delivery of a public offering statement or of a resale certificate under subsection (b) of section 47-262 and section 47-270.

      (P.A. 06-76, S. 12; P.A. 07-217, S. 110.)

      History: P.A. 07-217 made a technical change in Subsec. (c), effective July 12, 2007.