OLR Bill Analysis

sHB 5685

AN ACT CONCERNING BROWNFIELDS.

SUMMARY:

The bill establishes an office to help clean up and redevelop contaminated properties (i. e. , brownfields) and appropriates $ 15 million in FY 07 for its projects, which include establishing a pilot brownfield clean-up and redevelopment program. The bill places the office in the Department of Economic and Community Development (DECD) for administrative purposes only and channels the appropriation through it to the office.

The bill also allows people to remove or mitigate more types of substances for which they can seek compensation from the party that spilled or discharged them. It sets a timeframe during which these people must seek compensation and specifies the grounds under which a person is liable for the clean-up costs. These changes apply to actions started before, on, or after July 1, 2006 but not to those that became final before that date and cannot be appealed.

EFFECTIVE DATE: July 1, 2006

OFFICE OF BROWNFIELD REMEDIATION AND DEVELOPMENT

Duties

The office must expedite the process for identifying, cleaning up, and redeveloping contaminated properties. It must do this by:

1. developing procedures and policies for streamlining the clean-up process;

2. identifying funding sources and creating new ones for cleaning up brownfields and develop ways to expedite the process for obtaining the funds;

3. establishing a place that can help developers meet federal and state clean-up standards and qualify for state funds;

4. identify and rank opportunities for cleaning up and redeveloping brownfields;

5. analyze how New Jersey, Pennsylvania, and other states encourage parties to clean up brownfields and address the potential liability for doing so; and

6. educate property owners and developers about state policies and procedures for cleaning up brownfields.

Interagency Coordination

The bill allows the office to obtain help from state agencies and other organizations. The Department of Environmental Protection (DEP) and the Connecticut Development Authority (CDA) must designate a member of their respective staffs to serve as a liaison to the office. The office can ask other state organizations for reports, information, and technical assistance it needs to carry out its duties, and the bill directs the employees of these organizations to cooperate with the office.

The bill also requires the office to recruit two volunteers from the private sector to help it carry out its duties. One must be a representative of the Connecticut Chapter of the National Brownfield Association experienced in cleaning up and redeveloping contaminated properties. The office's staff, the DEP and CDA liaisons, and the private sector volunteers must serve as the office's response team.

Pilot Program

The office must establish a pilot program to identify opportunities for cleaning up and redeveloping contaminated properties. It must designate four towns where contaminated properties hinder economic development and fund projects that could significantly benefit them. One town must have between 25,000 and 50,000 people, one between 50,000 and 100,000 people, and two over 100,000 people.

The bill requires DECD to describe the office's activities in its annual report to the legislature.

RECOVERING CLEAN-UP COSTS

Hazardous Substances

The law entitles people who clean up contaminated property to be compensated for doing so by the person or entity that contaminated the property. Current law limits the form of compensation to reimbursement for the reasonable costs for containing, removing, or mitigating the contamination. It also allows people to seek reimbursement for cleaning up oil, petroleum, chemicals, gaseous products, and hazardous wastes.

The bill adds federally defined hazardous substances to this list and allows people to seek reimbursement or recovery for reasonable clean-up costs including those incurred for investigating the property and monitoring its cleanup.

Liability for Clean-up Costs

The bill specifies the grounds under which a person must pay the clean-up costs. Under current law, a person is liable for the costs if he was negligent or acted in a way that caused the contamination. Under the bill, he is liable if he directly or indirectly caused the contamination, regardless of whether he was negligent. He is also liable even if he did not cause the contamination but:

1. owns or operates a facility;

2. owned or operated any facility when hazardous substances were disposed there;

3. contracted or arranged for someone else to dispose or treat hazardous substances or move them for that purpose, regardless of whether he owned or possessed those substances; or

4. accepted and moved hazardous substances to a facility he chose from which they were subsequently discharged.

The bill also addresses situations where several people are jointly liable for clean-up costs. Under current law, they are liable when the contamination results from their joint negligence or the actions of two or more people. Under the bill, they are also jointly liable for the omissions of two or more persons, regardless of whether they were negligent.

Defense

The bill establishes criteria a person must meet to avoid being liable for the cost of cleaning up a hazardous substance (but not a hazardous waste). The person can avoid liability if he can show by a preponderance of the evidence that an act of God or war caused the contamination or that it resulted from a third party's act or omission. Third parties do not include the person's employees or agents.

But the person is liable for third party acts or omissions if they occurred under a direct or indirect contractual relationship with that person. This rule applies to all contractual relationships except contracts to ship hazardous substances by rail. To avoid liability in contractual cases, the person must establish by a preponderance of the evidence that he:

1. carefully handled the hazardous substance based on its characteristics and

2. took precautions against the third party's foreseeable acts or omissions and their foreseeable consequences.

Immunity from Liability for Clean-up Actions

The law exempts people who clean up contaminated property from civil liability except for gross negligence or willful or wanton misconduct. The bill extends this exemption to people who clean up hazardous wastes.

Timeframe for Seeking Reimbursement or Recovery

The bill sets a timeframe during which people can seek reimbursement or recovery for their clean-up costs. A person must begin to do this within six years after he started the clean-up work or three years after he finished it, whichever is later. The bill allows the Superior Court to add reasonable future clean-up costs to any order granting reimbursement or recovery.

BACKGROUND

Related Bill

sSB 415 (File 99) makes similar changes to the provisions under which a person is entitled to reimbursement for cleaning up contaminated property.

COMMITTEE ACTION

Commerce Committee

Joint Favorable Substitute

Yea

26

Nay

0

(03/16/2006)