Substitute House Bill No. 5712
Substitute House Bill No. 5712
PUBLIC ACT NO. 98-134
AN ACT CONCERNING THE REPORTING OF CERTAIN
SIGNIFICANT ENVIRONMENTAL HAZARDS BY OWNERS OF
CONTAMINATED PROPERTY, SUPPLEMENTAL ENVIRONMENTAL
PROJECTS, CONSISTENCY WITH FEDERAL ENVIRONMENTAL
LAWS AND REMEDIATION OF CONTAMINATED REAL
PROPERTY.
Be it enacted by the Senate and House of
Representatives in General Assembly convened:
Section 1. (NEW) (a) For the purposes of this
section:
(1) "Commissioner" means the Commissioner of
Environmental Protection, or his designee;
(2) "Parcel" means a piece, tract or lot of
land, together with buildings and other
improvements situated thereon, a legal description
of which piece, parcel, tract or lot is contained
in a deed or other instrument of conveyance and
which piece, tract or lot is not the subject of an
order or consent order of the commissioner which
involves requirements for investigation or
reporting regarding environmental contamination;
(3) "Person" means person, as defined in
section 22a-2 of the general statutes;
(4) "Pollution" means pollution, as defined in
section 22a-423 of the general statutes;
(5) "Release" means any discharge,
uncontrolled loss, seepage, filtration, leakage,
injection, escape, dumping, pumping, pouring,
emitting, emptying or disposal of oil or petroleum
or chemical liquids or solids, liquid or gaseous
products or hazardous wastes;
(6) "Residential activity" means any activity
related to (A) a residence or dwelling, including,
but not limited to, a house, apartment, or
condominium, or (B) a school, hospital, day care
center, playground or outdoor recreational area;
(7) "Substance" means an element, compound or
material which, when added to air, water, soil or
sediment, may alter the physical, chemical,
biological or other characteristics of such air,
water, soil or sediment;
(8) "Upgradient direction" means in the
direction of an increase in hydraulic head; and
(9) "Technical environmental professional"
means an individual, including, but not limited
to, an environmental professional licensed
pursuant to section 22a-133v of the general
statutes, who collects soil, water, vapor or air
samples for purposes of investigating and
remediating sources of pollution to soil or waters
of the state and who may be directly employed by,
or retained as a consultant by, a public or
private employer.
(b) (1) If a technical environmental
professional determines in the course of
investigating or remediating pollution after the
effective date of this section, which pollution is
on or emanating from a parcel, that such pollution
is causing or has caused contamination of a public
or private drinking water well with a substance
for which the Commissioner of Environmental
Protection has established a ground water
protection criterion in regulations adopted
pursuant to section 22a-133k of the general
statutes at a concentration above the ground water
protection criterion for such substance, such
professional shall notify his client and the owner
of the parcel, if the owner can reasonably be
identified, not later than twenty-four hours after
determining that the contamination exists. If,
seven days after such determination, the owner of
the subject parcel has not notified the
commissioner, the client of the professional shall
notify the commissioner. If the owner notifies the
commissioner, the owner shall provide
documentation to the client of the professional
which verifies that the owner has notified the
commissioner.
(2) The owner of a parcel on which exists a
source of contamination to soil or waters of the
state shall notify the commissioner if such owner
becomes aware that such pollution is causing or
has caused contamination of a private or public
drinking water well with a substance for which the
commissioner has established a ground water
protection criterion in regulations adopted
pursuant to section 22a-133k of the general
statutes at a concentration at or above the ground
water protection criterion for such substance.
Notice under this section shall be given to the
commissioner (A) orally, not later than one
business day after such person becomes aware that
the contamination exists, and (B) in writing, not
later than five days after such oral notice.
(c) (1) If a technical environmental
professional determines in the course of
investigating or remediating pollution after the
effective date of this section, which pollution is
on or emanating from a parcel, that such pollution
is causing or has caused contamination of a public
or private drinking water well with: (A) A
substance for which the commissioner has
established a ground water protection criterion in
regulations adopted pursuant to section 22a-133k
of the general statutes at a concentration less
than such ground water protection criterion for
such substance; or (B) any other substance
resulting from the release which is the subject of
the investigation or remediation, such
professional shall notify his client and the owner
of the parcel, if the owner can reasonably be
identified, not later than seven days after
determining that the contamination exists.
(2) The owner of a parcel on which exists a
source of pollution to soil or the waters of the
state shall notify the commissioner if such owner
becomes aware that such pollution is causing or
has caused contamination of a private or public
drinking water well with: (A) A substance for
which the commissioner has established a ground
water protection criterion in regulations adopted
pursuant to section 22a-133k of the general
statutes at a concentration less than such ground
water protection criterion for such substance; or
(B) any other substance which was part of the
release which caused such pollution. Notice under
this subdivision shall be given in writing not
later than seven days after the time such person
becomes aware that the contamination exists.
(d) (1) If a technical environmental
professional determines in the course of
investigating or remediating pollution after the
effective date of this section, which pollution is
on or emanating from a parcel, that such pollution
of soil within two feet of the ground surface
contains a substance, except for total petroleum
hydrocarbon, at a concentration at or above thirty
times the industrial/commercial direct exposure
criterion for such substance if the parcel is in
industrial or commercial use, or the residential
direct exposure criterion if the parcel is in
residential use, which criteria are specified in
regulations adopted pursuant to section 22a-133k
of the general statutes, such professional shall
notify his client and the owner of the parcel, if
such owner is reasonably identified, not later
than seven days after determining that the
contamination exists, except that notice will not
be required if the land-use of such parcel is not
residential activity and the substance is one of
the following: Acetone, 2-butanone, chlorobenzene,
1,2-dichlorobenzene, 1,3-dichlorobenzene,
1,1-dichloroethane, cis-1,2-dichloroethylene,
trans-1,2-dichloroethylene, ethylbenzene,
methyl-tert-butyl-ether, methyl isobutyl ketone,
styrene, toluene, 1,1,1-trichloroethane, xylenes,
acenaphthylene, anthracene, butyl benzyl
phthalate, 2-chlorophenol, di-n-butyl phthalate,
di-n-octyl phthalate, 2,4-dichlorophenol,
fluoranthene, fluorene, naphthalene, phenanthrene,
phenol and pyrene.
(2) The owner of the subject parcel, shall
notify the commissioner in writing not later than
ninety days after the time such owner becomes
aware that the contamination exists except that
notification will not be required if not later
than ninety days: (A) The contaminated soil is
remediated in accordance with regulations adopted
pursuant to section 22a-133k of the general
statutes; (B) the contaminated soil is
inaccessible soil as that term is defined in
regulations adopted pursuant to section 22a-133k
of the general statutes; or (C) the contaminated
soil which exceeds thirty times such criterion is
treated or disposed of in accordance with all
applicable laws and regulations.
(e) (1) If a technical environmental
professional determines in the course of
investigating or remediating pollution after the
effective date of this section, which pollution is
on or emanating from a parcel, that such pollution
is causing or has caused ground water within
fifteen feet beneath an industrial or commercial
building to be contaminated with a volatile
organic substance at a concentration at or above
thirty times the industrial/commercial
volatilization criterion for ground water for such
substance or, if such contamination is beneath a
residential building, at a concentration at or
above thirty times the residential volatilization
criterion, which criteria are specified in
regulations adopted pursuant to section 22a-133k
of the general statutes, such professional shall,
not later than seven days after determining that
the contamination exists, notify his client and
the owner of the subject parcel, if such owner can
reasonably be identified.
(2) The owner of such parcel shall notify the
commissioner in writing not later than thirty days
after such person becomes aware that the
contamination exists except that notification is
not required if: (A) The concentration of such
substance in the soil vapor beneath such building
is at or below thirty times the soil vapor
volatilization criterion, appropriate for the
land-use for the parcel, for such substance as
specified in regulations adopted pursuant to
section 22a-133k of the general statutes; (B) the
concentration of such substance in groundwater is
below thirty times a site-specific volatilization
criterion for ground water for such substance
calculated in accordance with regulations adopted
pursuant to section 22a-133k of the general
statutes; (C) ground water volatilization
criterion, appropriate for the land-use of the
parcel, for such substance specified in
regulations adopted pursuant to section 22a-133k
of the general statutes is fifty thousand parts
per billion; or (D) not later than thirty days
after the time such person becomes aware that the
contamination exists, an indoor air monitoring
program is initiated in accordance with
subdivision (3) of this subsection.
(3) An indoor air quality monitoring program
for the purposes of this subsection shall consist
of sampling of indoor air once every two months
for a duration of not less than one year, sampling
of indoor air immediately overlying such
contaminated ground water, and analysis of air
samples for any volatile organic substance which
exceeded thirty times the volatilization criterion
as specified in or calculated in accordance with
regulations adopted pursuant to section 22a-133k
of the general statutes. The owner of the subject
parcel shall notify the commissioner if: (A) The
concentration in any indoor air sample exceeds
thirty times the target indoor air concentration,
appropriate for the land-use of the parcel, as
specified in regulations adopted pursuant to
section 22a-133k of the general statutes; or (B)
the indoor air monitoring program is not conducted
in accordance with this subdivision. Notice shall
be given to the commissioner in writing not later
than seven days after the time such person becomes
aware that such a condition exists.
(f) (1) If a technical environmental
professional determines in the course of
investigating or remediating pollution after the
effective date of this section, which pollution is
on or emanating from a parcel, that such pollution
is causing or has caused contamination of ground
water which is discharging to surface water and
such ground water is contaminated with a substance
for which an acute aquatic life criterion is
listed in appendix D of the most recent water
quality standards adopted by the commissioner at a
concentration which exceeds ten times (A) such
criterion for such substance in said appendix D,
or (B) such criterion for such substance times a
site specific dilution factor calculated in
accordance with regulations adopted pursuant to
section 22a-133k of the general statutes, such
professional shall notify his client and the owner
of such parcel, if such owner can reasonably be
identified, not later than seven days after
determining that the contamination exists.
(2) The owner of such parcel shall notify the
commissioner in writing not later than seven days
after the time such person becomes aware that the
contamination exists except that notice shall not
be required if such person knows that the polluted
discharge at that concentration has been reported
to the commissioner in writing within the
preceding year.
(g) (1) If a technical environmental
professional determines in the course of
investigating or remediating pollution after the
effective date of this section, which pollution is
on or emanating from a parcel, that such pollution
is causing or has caused contamination of ground
water within five hundred feet in an upgradient
direction of a private or public drinking water
well which ground water is contaminated with a
substance resulting from a release for which the
commissioner has established a ground water
protection criterion in regulations adopted
pursuant to section 22a-133k of the general
statutes at a concentration at or above the ground
water protection criterion for such substance,
such technical environmental professional shall
notify his client and the owner of the subject
parcel, if such owner can reasonably be
identified, not later than seven days after
determining that the contamination exists.
(2) The owner of the subject parcel shall
notify the commissioner in writing not later than
seven days after the time such owner becomes aware
that the contamination exists.
(h) (1) If a technical environmental
professional determines in the course of
investigating or remediating pollution after the
effective date of this section, which pollution is
on or emanating from a parcel, that such pollution
is causing or has caused polluted vapors emanating
from polluted soil, groundwater or free product
which vapors are migrating into structures or
utility conduits and which vapors pose an
explosion hazard, such technical environmental
professional shall immediately notify his client
and the owner of the subject parcel, if such owner
can reasonably be identified, not later than
twenty-four hours after determining that the vapor
condition exists. If the owner of such parcel
fails to notify the commissioner in accordance
with this subsection, such client shall notify the
commissioner. If the owner notifies the
commissioner, the owner shall provide
documentation to the client of the professional
which verifies that the owner has notified the
commissioner.
(2) The owner of such parcel shall orally
notify the commissioner and the local fire
department immediately and under all circumstances
not later than two hours after the time a
technical environmental professional notifies the
owner that the vapor condition exists, and shall
notify the commissioner in writing not later than
five days after such oral notice.
(i) All notices, oral or written, provided
under this section shall include the nature of the
contamination or condition, the address of the
property where the contamination or condition is
located, the location of such contamination or
condition, any property known to be affected by
such contamination or condition, any steps being
taken to abate, remediate or monitor such
contamination or condition, and the name and
address of the person making such notification.
Written notification shall be clearly marked as
notification required by this act and shall be
either personally delivered to the Water
Management Bureau of the Department of
Environmental Protection or sent certified mail,
return receipt requested, to the Water Management
Bureau of the Department of Environmental
Protection.
(j) The commissioner shall provide written
acknowledgment of receipt of a written notice
pursuant to this section not later than ten days
of receipt of such notice. Such acknowledgement
shall be accompanied by (1) a statement that the
owner of the parcel has up to ninety days within
which to submit to the commissioner a plan to
remediate or abate the contamination or condition.
If such plan is not submitted or is not approved
by the commissioner, the commissioner shall
prescribe the action to be taken, or (2) a
directive as to action required to remediate or
abate the contamination or condition. If a plan is
submitted which details actions to be taken, or a
report is submitted which details actions taken,
to mitigate the contamination or conditions such
that notice under this section would not be
required, and such plan or report is acceptable to
the commissioner, the commissioner shall approve
such plan or report in writing. When actions
implementing an approved plan are completed, the
commissioner shall issue a certificate of
compliance.
(k) Nothing in this section and no action
taken by any person pursuant to this section shall
affect the commissioner's authority under any
other statute or regulation.
(l) Nothing in this section shall excuse a
person from complying with the requirements of any
statute or regulation except the commissioner may
waive the requirements of the regulations adopted
under section 22a-133k of the general statutes if
he determines that it is necessary to ensure that
timely and appropriate action is taken to mitigate
or minimize any of the conditions described in
subsections (b) to (h), inclusive, of this
section.
Sec. 2. Section 22a-16a of the general
statutes is repealed and the following is
substituted in lieu thereof:
In any action brought by the Attorney General
under section 22a-16 or under any provision of
this title which provides for a civil or criminal
penalty for a violation of such provision, the
court, in lieu of any other penalties, damages or
costs awarded, or in addition to a reduced
penalty, damages or costs awarded, may order the
defendant (1) to provide for the restoration of
any natural resource or the INVESTIGATION,
remediation or mitigation of any environmental
pollution on or at any real property which
resource or property are unrelated to such action,
(2) to provide for any other project approved by
the Commissioner of Environmental Protection for
the enhancement of environmental protection or
conservation of natural resources, (3) to make a
financial contribution to an academic or
government-funded research project related to
environmental protection or conservation of
natural resources, or (4) to make a financial
contribution to the Special Contaminated Property
Remediation and Insurance Fund established under
section 22a-133t provided the total aggregate
amount of all contributions to said fund under
this section shall not exceed one million dollars
per fiscal year. [provided no] NO defendant
carrying out any order under this section may
claim or represent that its expenses in so doing
constitute ordinary business expenses or
charitable contributions or any other type of
expense other than a penalty for a violation of
the environmental laws.
Sec. 3. Section 22a-6 of the general statutes,
as amended by section 44 of public act 97-44, is
amended by adding subsection (h) as follows:
(NEW) (h) The commissioner may adopt
regulations pertaining to activities for which the
federal government has adopted standards or
procedures. All provisions of such regulations
which differ from the applicable federal standards
or procedures shall be clearly distinguishable
from such standards or procedures either on the
face of the proposed regulation or through
supplemental documentation accompanying the
proposed regulation at the time of the public
hearing on such regulation required under chapter
54. An explanation for all such provisions shall
be included in the regulation-making record
required under chapter 54. This subsection shall
apply to any regulation for which a notice of
intent to adopt is published on and after July 1,
1999.
Sec. 4. Subsections (a) and (b) of section
22a-133x of the general statutes are repealed and
the following is substituted in lieu thereof:
(a) Except as provided in section 22a-133y a
municipality, an owner of an establishment, [or]
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
municipality or such owner and an initial review
fee in accordance with subsection (e) of this
section. Within thirty days of his receipt of such
form, the commissioner shall notify the owner, in
writing, whether or not 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. For the purposes of this
section, "municipality" means any of the one
hundred sixty-nine towns of the state.
(b) If the commissioner notifies the owner
that he will not formally review and approve in
writing the investigation and remediation of the
parcel, the owner shall, on or before ninety days
of the receipt of such notice, 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 to submit to
him copies of technical plans and reports related
to investigation and remediation of the parcel OR
RELEASE AREA, and may notify the owner if the
commissioner determines that the commissioner's
review and written approval is necessary. The
commissioner shall require that the certifying
party submit to him 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 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 remediated in accordance with the remediation
standards the owner shall submit a copy of such
verification to the commissioner.
Sec. 5. Subsection (b) of section 22a-133u of
the general statutes, as amended by section 13 of
public act 97-124, is repealed and the following
is substituted in lieu thereof:
(b) The Commissioner of Economic and Community
Development, with the approval of the advisory
board established in subsection (e) of this
section, may use any funds deposited into the
Special Contaminated Property Remediation and
Insurance Fund pursuant to section 12-63f or
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 [prepared in
accordance with section 22a-133y] or for any costs
of demolition 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.
Approved May 27, 1998