Substitute House Bill No. 5430
Substitute House Bill No. 5430
PUBLIC ACT NO. 98-253
AN ACT CONCERNING BROWNFIELDS REMEDIATION AND
RECYCLING AND A REGIONAL ECONOMIC DEVELOPMENT
ASSISTANCE REVOLVING FUND.
Be it enacted by the Senate and House of
Representatives in General Assembly convened:
Section 1. Section 1 of public act 97-109 is
repealed and the following is substituted in lieu
thereof:
[Any municipality may, by vote of its
legislative body or, in a municipality where the
legislative body is a town meeting, by vote of the
board of selectmen, and by vote of its board of
finance, and upon application of the owner of any
eligible real property who agrees, in order to
redevelop environmentally impacted sites, to
conduct environmental site assessment, demolition,
remediation or other clean-up of such property
enter into an agreement to abate the property tax
due, during the period of such redevelopment and
remediation, as of the date of the agreement, but
for not longer than seven years, provided such
property meets the criteria established by such
municipality to qualify for such abatement. Any
such tax abatement shall be contingent upon the
continuation of the redevelopment and remediation
process with respect to the property for those
purposes specified in the agreement creating such
abatement and such abatement shall cease upon the
sale or transfer of the property for any other
purpose unless the municipality shall have
consented thereto. Such a municipality may also
establish a recapture in the event of sale
provided such recapture shall not exceed the
original amount of taxes abated and may not go
back further than the date of the agreement.]
(a) ANY MUNICIPALITY MAY (1) ENTER INTO AN
AGREEMENT WITH THE OWNER OF ANY REAL PROPERTY TO
ABATE THE PROPERTY TAX DUE AS OF THE DATE OF THE
AGREEMENT FOR A PERIOD NOT TO EXCEED SEVEN YEARS
IF THE PROPERTY HAS BEEN SUBJECT TO A SPILL, AS
DEFINED IN SECTION 22a-452c, AND THE OWNER AGREES
TO CONDUCT ANY ENVIRONMENTAL SITE ASSESSMENT,
DEMOLITION AND REMEDIATION OF THE SPILL NECESSARY
TO REDEVELOP THE PROPERTY. ANY SUCH TAX ABATEMENT
SHALL ONLY BE FOR THE PERIOD OF REMEDIATION AND
REDEVELOPMENT AND SHALL BE CONTINGENT UPON THE
CONTINUATION AND COMPLETION OF THE REMEDIATION AND
REDEVELOPMENT PROCESS WITH RESPECT TO THE PURPOSES
SPECIFIED IN THE AGREEMENT. THE ABATEMENT SHALL
CEASE UPON THE SALE OR TRANSFER OF THE PROPERTY
FOR ANY OTHER PURPOSE UNLESS THE MUNICIPALITY
CONSENTS TO ITS CONTINUATION. THE MUNICIPALITY MAY
ALSO ESTABLISH A RECAPTURE PROVISION IN THE EVENT
OF SALE PROVIDED SUCH RECAPTURE SHALL NOT EXCEED
THE ORIGINAL AMOUNT OF TAXES ABATED AND MAY NOT GO
BACK FURTHER THAN THE DATE OF THE AGREEMENT; OR
(2) FORGIVE ALL OR A PORTION OF THE PRINCIPAL
BALANCE AND INTEREST DUE ON DELINQUENT PROPERTY
TAXES FOR THE BENEFIT OF ANY PROSPECTIVE PURCHASER
WHO HAS OBTAINED AN ENVIRONMENTAL INVESTIGATION OR
REMEDIATION PLAN APPROVED BY THE COMMISSIONER OF
ENVIRONMENTAL PROTECTION OR A LICENSED
ENVIRONMENTAL PROFESSIONAL UNDER SECTION 22a-133w,
22a-133x, AS AMENDED BY SECTION 13 OF THIS ACT, OR
22a-133y AND COMPLETES SUCH REMEDIATION PLAN FOR
AN ESTABLISHMENT, AS DEFINED IN SECTION 22a-134,
AS AMENDED BY SECTION 2 OF THIS ACT, DEEMED BY THE
MUNICIPALITY TO BE ABANDONED.
(b) ANY ABATEMENT OR FORGIVENESS OF TAXES
UNDER SUBSECTION (a) OF THIS SECTION SHALL BE
APPROVED BY VOTE OF THE BOARD OF FINANCE AND THE
LEGISLATIVE BODY OF THE MUNICIPALITY, OR BY VOTE
OF THE BOARD OF FINANCE AND THE BOARD OF SELECTMEN
IN A MUNICIPALITY WHERE THE LEGISLATIVE BODY IS A
TOWN MEETING AND CONTINGENT UPON ANY OTHER
CONDITIONS DEEMED APPROPRIATE BY SUCH BODY.
(c) A MUNICIPALITY SHALL NOTIFY THE
COMMISSIONER OF ENVIRONMENTAL PROTECTION, THE
COMMISSIONER OF ECONOMIC AND COMMUNITY DEVELOPMENT
AND THE SECRETARY OF POLICY AND MANAGEMENT NOT
LATER THAN THIRTY DAYS AFTER GRANTING ANY
ABATEMENT OR FORGIVENESS OF TAXES UNDER SUBSECTION
(a) OF THIS SECTION. SUCH NOTICE SHALL PROVIDE THE
OWNER OR PURCHASER'S NAME, AS THE CASE MAY BE, AND
THE ADDRESS OF THE PROPERTY.
Sec. 2. Subdivision (1) of section 22a-134 of
the general statutes, as amended by section 1 of
public act 97-218, is repealed and the following
is substituted in lieu thereof:
(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 property through a
judicial foreclosure, (C) conveyance of a deed in
lieu of foreclosure to an institutional lender,
including, but not limited to, a banking
institution, (D) conveyance of a security interest
including, without limitation, a mortgage, (E)
renewal of a lease, (F) conveyance, assignment or
termination of a lease for a period less than
twenty-five years from the date of such
conveyance, assignment or termination, including
options or extensions of such period, (G) any
change in ownership approved by the Probate Court,
(H) conveyance 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, (I)
corporate reorganization not substantially
affecting the ownership of the establishment,
including, but not limited to, stock dividend
distributions or stock distributions in connection
with a merger, (J) the original issuance of stock
or other securities of an entity which owns or
operates an establishment, (K) the transfer of
stock, securities or other ownership interests
representing less than a majority of the voting
power of the entity that owns or operates the
establishment, (L) 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, (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, [or] (O) any conveyance of a parcel
which, prior to July 1, 1997, had been developed
solely for residential use and such use has not
changed, OR (P) ANY CONVEYANCE OF A PARCEL 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 32-225, OR TO THE CONNECTICUT
DEVELOPMENT AUTHORITY OR ANY SUBSIDIARY OF THE
AUTHORITY.
Sec. 3. Section 22a-133m of the general
statutes is amended by adding subsection (h) as
follows:
(NEW) (h) The Commissioner of Environmental
Protection and the Commissioner of Economic and
Community Development shall jointly identify urban
community sites known to have, or suspected to
have, environmental contamination which, if
remediated and developed, will improve the urban
environment. The Commissioner of Environmental
Protection and the Commissioner of Economic and
Community Development shall jointly establish the
priority of such sites for evaluation and
remediation based upon the following factors: (1)
The potential benefits of remediation to the
environment; (2) the estimated cost of evaluating
and remediating the site, if known; (3) the
potential benefits to the local community of such
site; (4) community support for remediation and
redevelopment of such site; (5) the commitment
from investors or the municipality to redevelop
the site; and (6) any other factors which the
commissioners deem relevant. No real property
shall be eligible for evaluation and remediation
under this subsection unless: (A) The Commissioner
of Environmental Protection is unable to determine
the responsible party, or the responsible party is
not in timely compliance with orders issued by the
commissioner to provide remedial action, or the
commissioner has not issued a final decision on an
order to a responsible party to provide remedial
action because of a request for a hearing on an
order or an issued order is subject to an appeal
pending before a court; (B) the site is located in
a distressed municipality, as defined in section
32-9p, a targeted investment community, as defined
in section 32-222, or an enterprise corridor zone,
as defined in section 32-80, or in such other
municipality as the Commissioner of Economic and
Community Development may designate; and (C) the
site is not undergoing evaluation or remediation
under subsections (a) to (g), inclusive, of this
section.
Sec. 4. Section 22a-133aa of the general
statutes is repealed and the following is
substituted in lieu thereof:
(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 [has been submitted] 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, or (2)
the Commissioner of Environmental Protection has
approved a final remedial action report for such
property. 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) such property is not remediated in
accordance with the detailed written plan
[submitted to] APPROVED BY the commissioner and
incorporated by reference in such covenant, (2)
prior to completion of remediation in accordance
with such plan, the commissioner finds that there
is substantial noncompliance with such plan and
there has not been a good faith effort to
substantially comply therewith, (3) remediation of
the parcel in accordance with such plan did not
comply with standards adopted by the commissioner
pursuant to section 22a-133k which were in effect
as of the effective date of the covenant, or (4)
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.
(c) 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 or for a covenant issued in connection
with a remediation project conducted under section
22a-133m.
(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.
Sec. 5. Section 22a-133bb of the general
statutes is repealed and the following is
substituted in lieu thereof:
(a) The Commissioner of Environmental
Protection [may] SHALL enter into a covenant not
to sue with any PROSPECTIVE PURCHASER OR owner of
contaminated real property provided (1) THE OWNER
OR PURCHASER CERTIFIES THAT THERE IS a detailed
written plan [has been submitted] for remediation
of the property, in accordance with standards
adopted by said commissioner pursuant to section
22a-133k, APPROVED BY THE COMMISSIONER OF
ENVIRONMENTAL PROTECTION, which plan shall be
incorporated by reference in the covenant, [or]
(2) the Commissioner of Environmental Protection
has approved a final remedial action report for
such property AND THE PERSON REQUESTING A COVENANT
CERTIFIES THAT THERE HAS BEEN NO DISCHARGE AFTER
THE DATE OF SUCH APPROVAL, (3) A DETAILED WRITTEN
PLAN FOR REMEDIATION OF THE PROPERTY IN ACCORDANCE
WITH SUCH REGULATIONS HAS BEEN APPROVED BY A
LICENSED ENVIRONMENTAL PROFESSIONAL, WHICH PLAN
SHALL BE INCORPORATED BY REFERENCE IN THE COVENANT
AND SUCH PLAN SHALL BE IMPLEMENTED PURSUANT TO
SECTION 22a-133x, 22a-133y OR 22a-134a, (4) A
LICENSED ENVIRONMENTAL PROFESSIONAL HAS VERIFIED,
PURSUANT TO SECTION 22a-133x, AS AMENDED BY
SECTION 13 OF THIS ACT OR 22a-134a, THAT THE
PROPERTY HAS BEEN REMEDIATED IN ACCORDANCE WITH
SUCH STANDARDS AND THE PERSON REQUESTING A
COVENANT CERTIFIES THAT THERE HAS BEEN NO
DISCHARGE AFTER THE DATE OF SUCH APPROVAL, OR (5)
A LICENSED ENVIRONMENTAL PROFESSIONAL HAS APPROVED
A FINAL REMEDIAL ACTION REPORT PURSUANT TO SECTION
22a-133y AND THE PERSON REQUESTING A COVENANT
CERTIFIES THAT THERE HAS BEEN NO DISCHARGE AFTER
THE DATE OF SUCH APPROVAL. NO LICENSED
ENVIRONMENTAL PROFESSIONAL SHALL APPROVE A
DETAILED WRITTEN PLAN FOR REMEDIATION OR A FINAL
REMEDIAL ACTION REPORT UNLESS SUCH PROFESSIONAL
CERTIFIES THAT THE PROPERTY HAS BEEN INVESTIGATED
IN A THOROUGH MANNER AND THE LICENSED
ENVIRONMENTAL PROFESSIONAL HAS INVESTIGATED THE
PROPERTY USING REASONABLE CARE AND DILIGENCE
APPLYING THE KNOWLEDGE AND SKILL ORDINARILY
REQUIRED OF A PROFESSIONAL IN GOOD STANDING
PRACTICING IN THE FIELD AT THE TIME THE
INVESTIGATION WAS UNDERTAKEN.
(b) No such covenant may be entered into
unless such owner [demonstrated to the
satisfaction of the commissioner that such owner
(A)] OR PURCHASER HAS CERTIFIED TO THE
COMMISSIONER THAT SUCH OWNER OR PURCHASER (1) 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; [(B)] (2) 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] A
RELATIONSHIP by which such owner's interest in
such property is to be conveyed or financed; and
[(C)] (3) will redevelop the property for
productive use or continue productive use of such
property. [provided the covenant not to sue is in
the public interest.]
(c) The commissioner [may] SHALL enter into a
covenant not to sue with any lending institution
to whom such owner conveys a security interest in
such property provided such institution [has
demonstrated to the satisfaction of] HAS CERTIFIED
TO 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)] (d) 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 to
require remediation of the parcel or any other
action related to such discharge, spillage,
uncontrolled loss, seepage or filtration unless
(1) such property is not remediated in accordance
with the detailed written plan submitted to the
commissioner and incorporated by reference in such
covenant, (2) prior to completion of remediation
in accordance with such plan, the commissioner
finds that there is substantial noncompliance with
such plan and there has not been a good faith
effort to substantially comply therewith, (3)
remediation of the property in accordance with
such plan did not comply with standards adopted by
the commissioner pursuant to section 22a-133k
which were in effect as of the [effective] date of
the covenant or (4) if required by the standards
adopted by the commissioner pursuant to section
22a-133k, an environmental use restriction has not
been recorded in accordance with section 22a-133o
OR IF THE PROVISIONS OF AN ENVIRONMENTAL LAND USE
RESTRICTION WERE NOT COMPLIED WITH.
[(c) Any person receiving a covenant not to
sue pursuant to this section shall pay to the
commissioner a review fee of five thousand dollars
which fee shall be deposited in the Special
Contaminated Property Remediation and Insurance
Fund established under section 22a-133t.]
[(d)] (e) A covenant not to sue issued under
this section may provide for continued monitoring
in accordance with such standards 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)] (f) 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 (1) 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, (2) new information
confirms the existence of previously unknown
contamination which resulted from a discharge,
spillage, uncontrolled loss, seepage or filtration
which occurred prior to the effective date of the
covenant, or (3) the threat to human health or the
environment is increased beyond an acceptable
level due to substantial changes in exposure
conditions at such property, including, but not
limited to, a change from nonresidential to
residential use of such property.
(g) THE COMMISSIONER SHALL ISSUE THE COVENANT
NOT LATER THAN FORTY-FIVE DAYS AFTER THE DATE HE
RECEIVES THE CERTIFICATIONS AND ALL OTHER
DOCUMENTS REQUIRED UNDER THIS SECTION.
Sec. 6. (NEW) (a) (1) A lender who holds
indicia of ownership primarily to protect a
security interest in a property, business
including its tangible and intangible assets or
establishment, as defined in section 22a-134 of
the general statutes, as amended by section 2 of
this act and does not participate in the
management of such property, business or
establishment, shall not be liable for any
damages, assessment, fine or other costs imposed
by the state for the containment, removal or
mitigation of such a spill or discharge, or for
any order of the commissioner to abate or
remediate such spill or discharge from, or in
connection with a property, business or
establishment.
(2) A lender who did not participate in
management of a property, business or
establishment, but acquires right, title or
interest in a property, business, including its
tangible or intangible assets, or establishment by
foreclosure, shall not be liable for any damage,
assessment, fine or other costs imposed by the
state for the containment, removal or mitigation
of such a spill or discharge, or for any order of
the commissioner to abate or remediate such spill
or discharge provided such lender seeks to sell,
re-lease, in the case of a lease finance
transaction, or otherwise divest itself of the
property, business or establishment at the
earliest practicable, commercially reasonable
time, on commercially reasonable terms, taking
into account market conditions and legal and
regulatory requirements, after the foreclosure.
(b) For the purposes of this section:
(1) "Participate in management" means
actually taking part in the management or
operational affairs of a property, business or
establishment, but does not mean merely having the
capacity to influence or the unexercised right to
control the property, business or establishment
operations. A lender holding indicia of ownership
primarily to protect a security interest in a
property, business or establishment shall be
considered to participate in management only if,
while the borrower is still in possession of the
property, business or establishment encumbered by
the security interest, the lender exercises
decision-making control over the borrower's
environmental compliance activities such that (A)
the lender has undertaken responsibility for the
hazardous substance handling or disposal practices
related to the property, business or
establishment, or (B) the lender exercises control
at a level comparable to that of a property,
business or establishment manager to the point
where the lender has assumed or manifested
responsibility for the overall management
encompassing day-by-day decision-making with
respect to environmental compliance or decision
making over all or substantially all of the
operational functions, as distinguished from
financial or administrative functions, of the
property, business or establishment other than the
function of compliance with environmental
protection laws. "Participate in management" does
not mean: (i) Performing an act or failing to act
prior to the time at which a security interest is
created in a property, business or establishment;
(ii) holding such a security interest or
abandoning or releasing such a security interest;
(iii) including in the terms of an extension of
credit, or in a contract or security agreement
relating to the extension, a covenant, warranty or
other term or condition that relates to compliance
with environmental protection laws; (iv)
monitoring or enforcing the terms and conditions
of the extension of credit or security interest;
(v) monitoring or undertaking one or more
inspections of the property, business or
establishment; (vi) requiring a response action or
other lawful means of containing, removing or
attempting to mitigate a discharge or spill prior
to, during or on the expiration of the term of the
extension of credit; (vii) providing financial or
other advice or counseling in an effort to
mitigate, prevent or cure default or diminution in
the value of the property, business or
establishment; (viii) restructuring, renegotiating
or otherwise agreeing to alter the terms and
conditions of the extension of credit or security
interest; (ix) exercising forbearance; (x)
exercising other remedies that may be available
under applicable law for the breach of a term or
condition of the extension of credit or security
agreement; or (xi) containing, removing or
otherwise mitigating a spill or discharge;
(2) "Extension of credit" means a lease
finance transaction in which the lessor does not
initially select the leased property, business,
including tangible and intangible assets, or
establishment and does not during the lease term
control the daily operations or maintenance of the
property, business or establishment, or the lease
or finance transaction provided such transaction
conforms to regulations issued by the federal
banking agency or the state bank supervisor, as
those terms are defined in the Federal Deposit
Insurance Act (12 USC 1813), or in regulations
issued by the National Credit Union Administration
Board;
(3) "Financial or administrative function"
means a function of a credit management officer,
accounts payable officer, accounts receivable
officer, personnel manager, comptroller or chief
financial officer or similar function;
(4) "Foreclosure" and "foreclose" means,
respectively, acquiring, and to acquire, a
property, business or establishment through (A)
purchase at sale under a judgment or decree, a
power of sale, a nonjudicial foreclosure sale, a
deed in lieu of foreclosure, or similar conveyance
from a trustee, or repossession, if the property,
business, including its tangible and intangible
assets, or establishment was security for an
extension of credit previously contracted,
including the termination of a lease agreement, or
(B) any other formal or informal manner by which a
lender acquires, for subsequent disposition, title
to or possession of a property, business,
including its tangible and intangible assets, or
facility in order to protect its security
interest;
(5) "Lender" means (A) an insured depository
institution, as defined in Section 3 of the
Federal Deposit Insurance Act (12 USC 1813); (B)
an insured credit union, as defined in Section 101
of the Federal Credit Union Act (12 USC 1752); (C)
a bank or association chartered under the Farm
Credit Act of 1971 (12 USC 2001 et seq.); (D) a
leasing or trust company that is an affiliate of
an insured depository institution; (E) any person,
including a successor or assignee of any such
person, that makes a bona fide extension of credit
to, or takes or acquires a security interest from,
a nonaffiliated person; (F) the Federal National
Mortgage Association, the Federal Home Loan
Mortgage Corporation, the Federal Agricultural
Mortgage Corporation, or any other person or
entity that in a bona fide manner makes, buys or
sells loans or interests in loans; (G) a person
who insures or guarantees against a default in the
repayment of an extension of credit or acts as a
surety with respect to an extension of credit to a
nonaffiliated person; and (H) any person who
provides title or other insurance and who acquires
a property, business or establishment as a result
of assignment or conveyance in the course of
underwriting claims and claims settlement;
(6) "Operational function" means a facility
or plant manager, operations manager, chief
operating officer or chief executive officer; and
(7) "Security interest" means a right under a
mortgage, deed of trust, assignment, judgment
lien, pledge, security agreement, factoring
agreement or lease and any other right accruing to
a person to secure the repayment of money, the
performance of a duty or any other obligation by a
nonaffiliated person.
Sec. 7. Section 32-11a of the general
statutes is amended by adding subsection (l) as
follows:
(NEW) (l) (1) The authority may establish one
or more subsidiaries to stimulate, encourage and
carry out the remediation, development and
financing of contaminated property within this
state, in coordination with the Department of
Environmental Protection, and to provide
financial, development and environmental expertise
to others including, but not limited to,
municipalities, interested in or undertaking such
remediation, development or financing which are
determined to be public purposes for which public
funds may be expended. Each subsidiary shall be
deemed a quasi-public agency for purposes of
chapter 12 of the general statutes. The authority
may transfer to any such subsidiary any moneys and
real or personal property. Each such subsidiary
shall have all the privileges, immunities, tax
exemptions and other exemptions of the authority.
(2) Each such subsidiary may sue and shall be
subject to suit provided the liability of each
such subsidiary shall be limited solely to the
assets, revenues and resources of such subsidiary
and without recourse to the general funds,
revenues, resources or any other assets of the
authority or any other subsidiary. No such
subsidiary may provide for any bonded indebtedness
of the state for the cost of any liability or
contingent liability for the remediation of
contaminated real property unless such
indebtedness is specifically authorized by an act
of the General Assembly. Each such subsidiary
shall have the power to do all acts and things
necessary or convenient to carry out the purposes
of this act, including, but not limited to, (i)
solicit, receive and accept aid, grants or
contributions from any source of money, property
or labor or other things of value, to be held,
used and applied to carry out the purposes of this
act, subject to the conditions upon which such
grants and contributions may be made, including
but not limited to, gifts, grants or loans, from
any department, agency or quasi-public agency of
the United States or the state; (ii) enter into
agreements with persons upon such terms and
conditions as are consistent with the purposes of
such subsidiary to acquire or facilitate the
remediation, development or financing of
contaminated real or personal property; (iii) to
acquire, take title, lease, purchase, own, manage,
hold and dispose of real and personal property and
lease, convey or deal in or enter into agreements
with respect to such property; (iv) examine,
inspect, rehabilitate, remediate or improve real
or personal property or engage others to do so on
such subsidiary's behalf, or enter into contracts
therefore; (v) mortgage, convey or dispose of its
assets and pledge its revenues in order to secure
any borrowing, for the purpose of financing,
refinancing, rehabilitating, remediating,
improving or developing its assets, provided each
such borrowing or mortgage shall be a special
obligation of such subsidiary, which obligation
may be in the form of notes, bonds, bond
anticipation notes and other obligations issued by
or to such subsidiary to the extent permitted
under this chapter of the general statutes to fund
and refund the same and provide for the rights of
the holders thereof, and to secure the same by
pledge of revenues, notes or other assets and
which shall be payable solely from the assets,
revenues and other resources of such subsidiary;
(vi) to create real estate investment trusts or
similar entities or to become a member of a
limited liability company or to become a partner
in limited or general partnerships or establish
other contractural arrangements with private and
public sector entities as such subsidiary deems
necessary to remediate, develop or finance
environmentally contaminated property in the
state; and (vii) any other powers enumerated in
subsection (e) of section 32-23 of the general
statutes necessary or appropriate to carry out the
purposes of this act. The board of directors,
executive director, officers and staff of the
authority may serve as members of any advisory or
other board which may be established to carry out
the purposes of this act.
(3) Each such subsidiary shall act through
its board of directors at least one-half of which
shall be members of the board of directors of the
authority or their designees or officers or
employees of the authority. A resolution of the
authority shall prescribe the purposes for which
each such subsidiary is formed.
(4) The provisions of section 1-125 of the
general statutes and this subsection shall apply
to any officer, director, designee, or employee
appointed as a member, director, or officer of any
such subsidiary. Neither any such persons so
appointed nor the directors, officers or employees
of the authority shall be personally liable for
the debts, obligations, or liabilities of any such
subsidiary as provided in said section 1-125. Each
subsidiary shall and the authority may provide for
the indemnification to protect, save harmless and
indemnify such officer, director, designee or
employee as provided by said section 1-125.
(5) The authority or any such subsidiary may
take such actions as are necessary to comply with
the provisions of the Internal Revenue Code of
1986 or any subsequent corresponding internal
revenue code of the United States, as from time to
time amended, to qualify and maintain any such
subsidiary as a corporation exempt from taxation
under said internal revenue code.
(6) The authority may make loans to each such
subsidiary, following standard authority
procedures, from the authority's assets and the
proceeds of its bonds, notes, and other
obligations, provided however, that the source and
security, if any, for the repayment of such loans
is derived from the assets, revenues and resources
of such subsidiary.
(7) Notwithstanding any other provisions of
law, the Commissioner of Environmental Protection
shall issue to the authority or any subsidiary a
covenant not to sue, pursuant to section 22a-133aa
or section 22a-133bb, as applicable, without fee,
as otherwise required in subsection (c) of said
section 22a-133aa for the remediation of a
facility in accordance with an approved
remediation plan.
Sec. 8. Section 32-23pp of the general
statutes is repealed and the following is
substituted in lieu thereof:
It shall be the policy of the state to
encourage the practice of pollution prevention AND
REMEDIATION ACTIVITIES, thereby reducing risks to
the environment and the health of workers and
consumers. As used in this section, pollution
prevention includes the change of or use of
production processes, practices, raw materials or
products that reduce or eliminate the generation
of by-products without creating new risks of
concern or that protect natural resources through
their conservation.
Sec. 9. Section 32-23qq of the general
statutes, as amended by section 5 of public act
97-124, is repealed and the following is
substituted in lieu thereof:
(a) An Environmental Assistance Revolving
Loan Fund is created. The state, acting through
the Connecticut Development Authority, OR ANY
SUBSIDIARY OF THE AUTHORITY may provide GRANTS,
loans, lines of credit or loan guarantees to
MUNICIPALITIES OR businesses from the
Environmental Assistance Revolving Loan Fund for
the [purpose] PURPOSES of pollution prevention
activities, as defined in section 32-23rr, AS
AMENDED BY THIS ACT, [or] for purchases and the
costs associated with compliance with the Clean
Air Act Amendments of 1990 (42 USC 7401, et seq.),
as amended, OR FOR REMEDIATION OF CONTAMINATED
REAL PROPERTY. Within the Environmental Assistance
Revolving Loan Fund, a loan subfund is created
solely to provide loans and lines of credit as
provided in this section, [and] a guarantee
subfund is created solely to provide loan
guarantees as provided in this section AND A GRANT
SUBFUND IS CREATED SOLELY TO PROVIDE GRANTS AS
PROVIDED UNDER THIS SECTION. No financial
assistance, nor any commitment to provide
financial assistance, shall be provided by or
entered into by the authority OR ANY SUBSIDIARY OF
THE AUTHORITY pursuant to sections 32-23pp to
32-23ss, inclusive, AS AMENDED, which would cause
the aggregate amount of all such financial
assistance and commitments then outstanding to
exceed the sum of the amounts in the applicable
subfund of the Environmental Assistance Revolving
Loan Fund plus the amount of any unpaid grants
authorized to be made by the Department of
Economic and Community Development to the
authority OR ANY SUBSIDIARY OF THE AUTHORITY for
deposit in the applicable subfund of the
Environmental Assistance Revolving Loan Fund,
provided the amount of financial assistance in the
form of any guarantee shall be measured by the
portion of unpaid loan principal which is
guaranteed by the authority. Notwithstanding the
above, the aggregate amount of financial
assistance in the form of guarantees and
commitments with respect thereto, calculated as
above, may be up to four times the sum of the
amounts available in the guarantee subfund of the
Environmental Assistance Revolving Loan Fund plus
the amount of any unpaid grants which remain
available and are specifically designated by the
department for purposes of such subfund pursuant
to the bond authorization in section 32-23ss. For
the purposes of this section, "business" means any
business which (1) has gross revenues of less than
twenty-five million dollars in its fiscal year
ending prior to the application for any such
loans, lines of credit or loan guarantees or (2)
has fewer than one hundred fifty employees. The
Connecticut Development Authority OR ANY
SUBSIDIARY OF THE AUTHORITY shall charge and
collect interest on each such loan or line of
credit at a rate to be determined in accordance
with procedures adopted pursuant to subsection (b)
of this section. Payments made by businesses on
all loans, lines of credit and loan guarantees
shall be paid to the authority OR ANY SUBSIDIARY
OF THE AUTHORITY for deposit in the Environmental
Assistance Revolving Loan Fund.
(b) The Connecticut Development Authority AND
ANY SUBSIDIARY OF THE AUTHORITY shall adopt
written procedures, in accordance with the
provisions of section 1-121, to carry out the
provisions of this section. Such procedures shall
establish requirements for GRANTS, loans,
guarantees, interest, repayment terms, security
requirements, default and remedies and such other
terms and conditions as the authority OR ANY
SUBSIDIARY OF THE AUTHORITY shall deem
appropriate.
(c) Each such GRANT, loan, guarantee or
extension of credit shall be authorized by the
Connecticut Development Authority OR ANY
SUBSIDIARY OF THE AUTHORITY or, if the authority
OR ANY SUBSIDIARY OF THE AUTHORITY so determines,
by a committee of the authority OR ANY SUBSIDIARY
OF THE AUTHORITY consisting of the chairman and
either one other member of the authority OR
SUBSIDIARY or its executive director, as specified
in the determination of the authority OR
SUBSIDIARY. Any administrative expenses incurred
in carrying out the provisions of this section, to
the extent not paid by the authority OR ANY
SUBSIDIARY OF THE AUTHORITY or from moneys
appropriated to the authority OR ANY SUBSIDIARY OF
THE AUTHORITY, shall be paid from the
Environmental Assistance Revolving Loan Fund.
Payments from the Environmental Assistance
Revolving Loan Fund to businesses OR
MUNICIPALITIES or to pay such administrative
expenses shall be made by the authority OR ANY
SUBSIDIARY OF THE AUTHORITY upon certification by
the chairman of the authority OR SUCH SUBSIDIARY
that the payment is authorized under the
provisions of this section, under the applicable
rules and regulations of the authority OR
SUBSIDIARY, and, if made to a business OR
MUNICIPALITY under the terms and conditions
established by the authority OR SUBSIDIARY or the
duly appointed committee thereof in authorizing
the making of the GRANT, loan or the extension of
credit.
[(d) The authority shall not approve an
application for a loan, line of credit or
guarantee unless the Connecticut Hazardous Waste
Management Service determines the applicant is
eligible for such loan, line of credit or
guarantee provided this subsection shall not apply
to loans for compliance with the Clean Air Act
Amendments of 1990 (42 USC 7401, et seq.), as
amended.]
Sec. 10. Section 32-23rr of the general
statutes is repealed and the following is
substituted in lieu thereof:
As used in sections 32-23pp, 32-23qq, AS
AMENDED BY THIS ACT, and this section:
(1) "Pollution prevention activities" means
changes within a plant in production processes,
product or raw materials that reduce, avoid or
eliminate the generation of hazardous by-products
per unit of product or the use of toxic or
hazardous substances per unit of product without
creating new risks of concern, but shall not be
construed to promote or require (A) incineration,
(B) transfer from one medium of exposure, release
or discharge to another medium, (C) off-site or
out-of-production process recycling or (D) methods
of end-of-pipe treatment of toxic or hazardous
substances as waste;
(2) "Production process" means a process,
line method, activity or technique or combination
or series thereof, which is integral to and
necessary for the production of a product or the
provision of a service; [and]
(3) "Hazardous by-product" means any
nonproduct output, waste or residue, including
fugitive emissions, of hazardous substance from a
production process; AND
(4) "REMEDIATION ACTIVITIES" MEANS ANY
ACTIVITY TO STIMULATE, ENCOURAGE AND CARRY OUT THE
IDENTIFICATION, ASSESSMENT, EVALUATION,
ACQUISITION, REMEDIATION, DEVELOPMENT OR FINANCING
OF CONTAMINATED PROPERTY IN THIS STATE.
Sec. 11. (NEW) (a) There is established a
fund to be known as the "Regional Economic
Development Assistance Revolving Fund". Repayment
of principal and interest on loans made for
regional economic development activities pursuant
to chapters 130, 132, 588a and section 4-66c of
the general statutes shall be credited to the fund
and shall become part of the assets of the fund.
The Regional Economic Development Assistance
Revolving Fund may include other separate
accounts. Any balance remaining in the fund at the
end of any fiscal year shall be carried forward in
the fund for the next fiscal year succeeding.
(b) All moneys received in consideration of
financial assistance for regional economic
development activities, including payments of
principal and interest on any loans, shall be
credited to the fund. The Commissioner of Economic
and Community Development, with the approval of
the Secretary of the Office of Policy and
Management, may deposit any federal, private or
other moneys received by the state in connection
with regional economic development activities into
the fund. The Commissioner of Economic and
Community Development may allow funds to be
retained by regional entities and not repaid to
the fund.
(c) The commissioner may provide financial
assistance from the assets of the fund to regional
entities in the form of individual loans or
grants. Regional entities may provide loans to
nonprofit businesses or communities, not to exceed
two hundred fifty thousand dollars per individual
loan, from a regional fund established by the
entity. Notwithstanding any provision of the
general statutes, payment of any administrative
expenses or other costs incurred by the department
in carrying out the purposes of chapters 130, 132,
588a and section 4-66c of the general statutes,
with respect to regional economic development
activities, may be paid from the fund established
in this section.
Sec. 12. (NEW) Any licensed environmental
professional employed or retained by a
municipality may enter, without liability, upon
any property within such municipality for the
purpose of performing an environmental site
assessment or investigation if: (1) The owner of
such property cannot be located; or (2) such
property is encumbered by a lien for taxes due
such municipality; or (3) upon a filing of a
notice of eminent domain.
Sec. 13. Subsection (a) of section 22a-133x
of the general statutes is 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.
Sec. 14. In codifying the provisions of this
act, the Legislative Commissioners shall delete
the reference to subsection (c) of section
22a-133bb which appears in section 22a-133u of the
general statutes.
Approved June 8, 1998