Connecticut Seal

General Assembly

 

Raised Bill No. 119

February Session, 2010

 

LCO No. 697

 

*_____SB00119JUD___041310____*

Referred to Committee on Environment

 

Introduced by:

 

(ENV)

 

AN ACT CONCERNING REMEDIATION PROGRAMS OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 22a-133e of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

(a) Remedial action for sites on the inventory that is proceeding in accordance with the provisions of state or federal programs shall continue in accordance with such programs.

(b) The commissioner shall provide for remedial action for all assessed sites by (1) referring the site to the United States Environmental Protection Agency pursuant to the provisions of CERCLA; (2) issuing administrative orders to responsible parties pursuant to section 22a-6, 22a-428, 22a-432, 22a-433 or 22a-449; [,] or (3) any action deemed necessary by said commissioner.

(c) If the commissioner determines that (1) the remedial action schedule for a site proposed by the United States Environmental Protection Agency pursuant to CERCLA is not consistent with the schedule developed in the assessment for such site list, or (2) the site, based on the site assessment score, is ineligible for CERCLA funding, [he] the commissioner may pursue remedial action for the site from any account established for such purpose and seek reimbursement for such remedial action.

(d) For any site undergoing remedial action pursuant to subdivision (1) of subsection (b) of this section or subsection (c) of this section, the commissioner may approve an alternative institutional control, other than an environmental land use restriction, as defined in section 22a-133n, as amended by this act, that the commissioner deems protective of human health and the environment.

Sec. 2. Subsection (a) of section 22a-133k of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

(a) The Commissioner of Environmental Protection shall adopt regulations, in accordance with the provisions of chapter 54, setting forth standards for the remediation of environmental pollution at hazardous waste disposal sites and other properties which have been subject to a spill, as defined in section 22a-452c, which regulations shall fully protect health, public welfare and the environment. In establishing such standards the commissioner shall (1) give preference to clean-up methods that are permanent, if feasible, (2) consider any factor he deems appropriate, including, but not limited to, groundwater classification of the site, and (3) provide for standards of remediation less stringent than those required for residential land use for polluted properties which (A) are located in areas classified as GB or GC under the standards adopted by the commissioner for classification of groundwater contamination, (B) were historically industrial or commercial property, and (C) are not subject to an order issued by the commissioner regarding such spill, consent order or stipulated judgment regarding such spill, provided an environmental use restriction [is executed] or a notice of activity and use limitation, as defined in section 22a-133n, as amended by this act, is in effect for any such property subsequent to the remedial action in accordance with the provisions of [section 22a-133aa] sections 22a-133n to 22a-133s, inclusive, as amended by this act, and further provided such regulations specify the types of industrial or commercial land uses to which any such property may be put subsequent to such remedial action. Such regulations shall cite appropriate guidance documents which may be used by a licensed environmental professional in a voluntary site remediation under section 22a-133y.

Sec. 3. Section 22a-133n of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

For the purposes of sections 22a-133n to 22a-133r, inclusive, as amended by this act: (1) "Commissioner" means the Commissioner of Environmental Protection; (2) "person" shall have the same meaning as in section 22a-2; [and] (3) "environmental use restriction" means a limitation in any instrument executed and recorded as prescribed in section 22a-133o, the purpose of which is to minimize the risk of human exposure to pollutants and hazards to the environment by [(1)] (A) preventing the use of specified real property for certain purposes, or [(2)] (B) prohibiting certain activities on such property; and (4) "notice of activity and use limitation" means a notice concerning the use of real property that is recorded upon real property by a property owner pursuant to section 22a-133o, as amended by this act, the purpose of which is to minimize the risk of human exposure to pollutants and hazards to the environment by (A) preventing the use of specified real property for certain purposes, or (B) prohibiting certain activities on such property.

Sec. 4. Section 22a-133o of the general statutes is amended by adding subsection (f) as follows (Effective October 1, 2010):

(NEW) (f) (1) An owner of land may execute and record a notice of activity and use limitation under sections 22a-133n to 22a-133r, inclusive, as amended by this act, on the land records of the municipality in which such land is located if (A) the commissioner has adopted regulations for a notice of activity and use limitation pursuant to section 22a-133q, as amended by this act, (B) the commissioner, or a licensed environmental professional in the case of property for which the commissioner authorized remedial action to be supervised by, or a notice of activity and use limitation decision document to be prepared by, a licensed environmental professional, determines, as evidenced by the commissioner's or such person's signature on a notice of activity and use limitation decision document, that it is consistent with the purposes and requirements of sections 22a-133n to 22a-133r, inclusive, as amended by this act, and any regulation adopted pursuant to said sections and section 22a-133k, as amended by this act, and (C) such notice will effectively protect public health and the environment from the hazards of pollution.

(2) A notice of activity and use limitation may only be used and recorded for releases in accordance with the regulations adopted pursuant to sections 22a-133k and 22a-133q, as amended by this act, for the following purposes:

(A) To achieve industrial or commercial direct exposure criteria, groundwater volatilization criteria, and soil vapor criteria set forth in regulations adopted pursuant to section 22a-133k, as amended by this act, by preventing residential activity and use of the area to be affected by the notice of activity and use limitation when the property is zoned to exclude residential activity and use;

(B) To prevent disturbance of polluted soil that exceeds the applicable direct exposure criteria but is inaccessible, in compliance with the provisions of regulations adopted pursuant to section 22a-133k, as amended by this act, provided pollutant concentrations in such inaccessible soil do not exceed ten times the applicable direct exposure criteria;

(C) To prevent disturbance of an engineered control to the extent such engineered control is for the sole remedial purpose of eliminating exposure to polluted soil that exceeds the direct exposure criteria, provided pollutant concentrations in such soil do not exceed ten times the applicable direct exposure criteria;

(D) To prevent demolition of a building or permanent structure that renders polluted soil environmentally isolated, provided that either: (i) The pollutant concentrations in the environmentally isolated soil do not exceed ten times the applicable direct exposure criteria and the applicable pollutant mobility criteria, or (ii) the total volume of soil that is environmentally isolated is less than or equal to ten cubic yards; or

(E) Any other purpose the commissioner may prescribe by regulation.

(3) No owner shall record a notice of activity and use limitation on the land records of the municipality in which such land is located unless the owner provides written notice to each person holding an interest in such land or any part thereof, including without limitation each mortgagee, lessee, lienor and encumbrancer, not later than sixty days prior to the recordation of such notice. Such notice of the proposed notice of activity and use limitation shall be sent by certified mail, return receipt requested, and shall include notice of the existence and location of oil or hazardous material within such area and the terms of such proposed activity and use limitation.  Such sixty-day-notice period may be waived upon the written agreement of all interest holders.

(4) A notice of activity and use limitation recorded pursuant to this subsection shall be implemented and adhered to by the owner and holders of interests in the property and any person that has a license to use such property or to conduct remediation on any portion of such property.

(5) A notice of activity and use limitation shall be deemed implemented and shall be in effect upon being duly recorded on the land records of the municipality in which such property is located.

(6) (A) A notice of activity and use limitation shall be prepared on a form as prescribed by the commissioner.

(B) A notice of activity and use limitation decision document, signed by the commissioner or signed and sealed by a licensed environmental professional, shall be referenced in and recorded with the notice of activity and use limitation, and shall specify:

(i) Why the notice of activity and use limitation is appropriate to achieve and maintain compliance with the regulations adopted pursuant to section 22a-133k, as amended by this act;

(ii) Activities and uses that are inconsistent with maintaining compliance with such regulations;

(iii) Activities and uses to be permitted;

(iv) Obligations and conditions necessary to meet the objectives of the notice of activity and use limitation; and

(v) The nature and extent of pollution in the area that is the basis for the notice of activity and use limitation, including a listing of contaminants and concentrations for such contaminants, and the horizontal and vertical extent of such contaminants.

(7) Upon transfer of any interest in or a right to use property, or a portion of property, that is subject to a notice of activity and use limitation, such notice shall be incorporated either in full or by reference into all future deeds, easements, mortgages, leases, licenses, occupancy agreements or any other instrument of transfer.

Sec. 5. Section 22a-133p of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

(a) The Attorney General, at the request of the commissioner, shall institute a civil action in the superior court for the judicial district of Hartford or for the judicial district wherein the subject land is located for injunctive or other equitable relief to enforce an environmental use restriction, a notice of activity and use limitation or to recover a civil penalty pursuant to subsection (e) of this section.

(b) The commissioner may issue orders pursuant to sections 22a-6 and 22a-7 to enforce an environmental use restriction or a notice of activity and use limitation.

(c) In any administrative or civil proceeding instituted by the commissioner to enforce an environmental use restriction or a notice of activity and use limitation, any other person may intervene as a matter of right.

(d) In any civil or administrative action to enforce an environmental use restriction or a notice of activity and use limitation, the owner of the subject land, and any lessee thereof, shall be strictly liable for any violation of such environmental use restriction or notice of activity and use limitation and shall be jointly and severally liable for abating such violation.

(e) Any owner of land with respect to which an environmental use restriction or notice of activity and use limitation applies, and any lessee of such land, who violates any provision of such environmental use restriction or who fails to adhere to any notice of activity and use limitation shall be assessed a civil penalty under section 22a-438. The penalty provided in this subsection shall be in addition to any injunctive or other equitable relief.

Sec. 6. Section 22a-133q of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

The commissioner shall adopt regulations, in accordance with the provisions of chapter 54, to carry out the purposes of sections 22a-133n to 22a-133r, inclusive, as amended by this act. Such regulations may include, but not be limited to, provisions regarding the form, contents, financial surety, monitoring and reporting, filing procedure for, and release from, environmental use restrictions and notices of activity and use limitation.

Sec. 7. Section 22a-133r of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

In the event that a court of competent jurisdiction finds for any reason that an environmental use restriction or notice of activity and use limitation is void or without effect for any reason, the owner of the subject land, in accordance with a schedule prescribed by the commissioner, shall promptly abate pollution thereon consistently with standards adopted under section 22a-133k, as amended by this act, for remediation of land used for residential or recreational purposes.

Sec. 8. Subsection (b) of section 22a-133aa of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

(b) Any covenant entered into under this section shall release only those claims [said] the 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, as amended by this act, 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, as amended by this act, an environmental land use restriction or notice of activity and use limitation has not been recorded in accordance with section 22a-133o, as amended by this act, 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.

Sec. 9. Subsection (d) of section 22a-133bb of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

(d) Any covenant entered into under this section shall release claims [said] the 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, as amended by this act, which were in effect as of the date of the covenant, or (4) if required by the standards adopted by the commissioner pursuant to section 22a-133k, as amended by this act, an environmental use restriction or a notice of activity and use limitation has not been recorded in accordance with section 22a-133o, as amended of this act, or if the provisions of an environmental land use restriction or a notice of activity and use limitation were not complied with.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2010

22a-133e

Sec. 2

October 1, 2010

22a-133k(a)

Sec. 3

October 1, 2010

22a-133n

Sec. 4

October 1, 2010

22a-133o

Sec. 5

October 1, 2010

22a-133p

Sec. 6

October 1, 2010

22a-133q

Sec. 7

October 1, 2010

22a-133r

Sec. 8

October 1, 2010

22a-133aa(b)

Sec. 9

October 1, 2010

22a-133bb(d)

ENV

Joint Favorable

 

JUD

Joint Favorable