Sec. 22a-134qq. Release to land and waters of the state. Prohibition. Violation.
Sec. 22a-134uu. Auditing of verifications. Report.
Sec. 22a-134ww. Liability protections of other provisions. Innocent landowner defense.
Sec. 22a-134xx. Commissioner authority.
Sec. 22a-134pp. Definitions. For the purposes of this section and sections 22a-134qq to 22a-134xx, inclusive:
(1) “Commissioner” means the Commissioner of Energy and Environmental Protection;
(2) “Brownfields program” means the brownfields liability relief program established pursuant to section 32-764, the abandoned brownfields program authorized by section 32-769, the brownfield remediation and revitalization program authorized by section 32-769, or the municipal brownfield liability relief program authorized by section 22a-133ii;
(3) “Land and waters of the state” means all waters, as defined in section 22a-423, and any land surface, including improved or unimproved surfaces, soils or subsurface strata;
(4) “Municipality” has the same meaning as provided in section 22a-423;
(5) “Person” means any individual, partnership, association, firm, limited liability company, corporation or other entity, the federal government, the state or any instrumentality or subdivision of the state, including any municipality, and any officer or governing or managing body of any partnership, association, firm or corporation or any member or manager of a limited liability company, provided (A) any such officer, body, member or manager is in a position of responsibility that allows the person to influence corporate policies or activities; (B) there is a nexus between the officer, body, member or manager's actions or inactions in such position and the violation of sections 22a-134qq to 22a-134ww, inclusive, such that such officer, body, member or manager influenced the corporate actions that constituted the violation; and (C) the actions or inactions of the officer, body, member or manager facilitated such violation;
(6) “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into or onto the land and waters of the state, not authorized under this title, of oil or petroleum or chemical liquids or solids, liquid or gaseous products or hazardous waste as defined in section 22a-448. “Release” does not include automotive exhaust or the application of fertilizer or pesticides consistent with their labeling;
(7) “Remediation” means determining the nature and extent of a release, in accordance with prevailing standards and guidelines, and the containment, removal and mitigation of such release, and includes, but is not limited to, the reduction of pollution by monitored natural attenuation;
(8) “Report” means to notify the commissioner of a release in accordance with the provisions of sections 22a-134qq to 22a-134tt, inclusive, and in the manner specified by the commissioner; and
(9) “Verification” means the written opinion of a licensed environmental professional on a form prescribed by the commissioner that the remediation of a release satisfies the standards established in regulations adopted pursuant to section 22a-134tt.
(Sept. Sp. Sess. P.A. 20-9, S. 15.)
History: Sept. Sp. Sess. P.A. 20-9 effective October 2, 2020 (Revisor's note: In codifying this section, an incorrect reference to “this act” was deemed by the Revisors to be a reference to “section 19” and codified as section 22a-134tt).
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Sec. 22a-134qq. Release to land and waters of the state. Prohibition. Violation. No person shall create or maintain a release to the land and waters of the state in violation of any provision of sections 22a-134rr to 22a-134vv, inclusive.
(Sept. Sp. Sess. P.A. 20-9, S. 16.)
History: Sept. Sp. Sess. P.A. 20-9 effective October 2, 2020.
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Sec. 22a-134rr. Reporting and remediation of certain releases. Requirements. Internet database of reports and verifications. (a) Any person who creates or maintains a release to the land and waters of the state on or after the date when regulations are first adopted pursuant to section 22a-134tt shall, upon discovery of such release: (1) Report the release, if such a report is required by the regulations adopted pursuant to section 22a-134tt, and (2) remediate any release to the standards identified in regulations adopted pursuant to section 22a-134tt. If any person fails to comply with the provisions of this section and section 22a-134tt, such person shall be liable for any costs incurred by the commissioner in accordance with section 22a-451, or costs incurred by any other person who contains or removes or otherwise mitigates the effects of such release in accordance with section 22a-452.
(b) A release shall not be deemed discovered if the only evidence of such release is data available or generated before the date when regulations are first adopted pursuant to section 22a-134tt.
(c) On any parcel required to be investigated and remediated pursuant to sections 22a-134 to 22a-134e, inclusive, and sections 22a-134h to 22a-134i, inclusive:
(1) Only releases that occurred prior to the filing of a Form I, Form II, Form III or Form IV but that were not discovered until (A) after the date of the commissioner's approval of the remediation, or (B) the date to which the verification applies, as designated on the form submitted to the commissioner in connection with a Form III or Form IV verification, or (C) the date on which the Form I or Form II was filed shall be subject to the requirements of sections 22a-134qq to 22a-134xx, inclusive;
(2) Any release that occurs after the filing of a Form I, Form II, Form III or Form IV shall be subject to the requirements of sections 22a-134qq to 22a-134xx, inclusive, except that when a Phase II investigation has been completed after the filing of a Form III or Form IV, only releases which occur after the date of the Phase II investigation shall be subject to the requirements of sections 22a-134qq to 22a-134xx, inclusive; and
(3) For the purposes of this subsection, “parcel”, “Form I”, “Form II”, “Form III” and “Form IV” have the same meanings as provided in section 22a-134.
(d) On any brownfield site accepted into a brownfields program:
(1) Releases that are discovered before the date on which the remediation requirements of the applicable brownfields program are fully satisfied shall continue to be subject to the applicable brownfields program and shall not be subject to sections 22a-134qq to 22a-134xx, inclusive;
(2) Releases that are discovered after but which occur prior to the date on which the remediation requirements of the applicable brownfields program are fully satisfied shall continue to be subject to such program and shall not be subject to sections 22a-134qq to 22a-134xx, inclusive. Nothing in sections 22a-134qq to 22a-134xx, inclusive, shall be construed to affect any liability protection afforded by any applicable brownfields program or a covenant not to sue entered into by the commissioner;
(3) Releases that occur after the date on which the requirements of the applicable brownfields program are fully satisfied shall be subject to sections 22a-134qq to 22a-134xx, inclusive. Liability for any such releases shall remain subject to the provisions of section 22a-134vv concerning liability protection afforded or a covenant not to sue entered into by the commissioner.
(e) Within available resources, the department shall provide a publicly accessible Internet database that contains all reports and verifications submitted as required by this section. Such database shall provide for the electronic submission of reports and verifications and search functionality. If such a system is not available at the time regulations are first adopted pursuant to section 22a-134tt, the department shall file an update on its progress for publication in the Environmental Monitor.
(Sept. Sp. Sess. P.A. 20-9, S. 17.)
History: Sept. Sp. Sess. P.A. 20-9 effective October 2, 2020.
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Sec. 22a-134ss. Orders. Hearing. Violations. Action by Attorney General. Penalties. Cease and desist order. (a)(1) If the commissioner finds that any person created or maintained a release to the land and waters of the state on or after the date when regulations are first adopted pursuant to section 22a-134tt, the commissioner may order such person to take the necessary steps to comply with the provisions of sections 22a-134qq to 22a-134tt, inclusive. Each order issued under this section shall be served by certified mail, return receipt requested, or by service by a state marshal or indifferent person. If the order is served by a state marshal or indifferent person, a true copy of the order shall be served, and the original, with a return of such service endorsed thereon, shall be filed with the commissioner. The order shall be deemed to be issued upon service or upon deposit in the mail. Any order issued pursuant to this section shall state the basis on which it is issued and shall specify a reasonable time for compliance.
(2) Any person who receives an order pursuant to this section shall have the right to a hearing. Unless a person who receives an order files a written request for a hearing before the commissioner within thirty days after the date of issuance, such order shall become final. A request for a hearing shall be a condition precedent to any appeal of such order.
(3) The provisions of section 22a-434 regarding filing an order on the land records, notice and a certificate of compliance or revocation shall apply to any order that becomes final under this subsection.
(b) If two or more persons are issued the same order pursuant to subsection (a) of this section or are responsible for a violation of any provision of sections 22a-134qq to 22a-134tt, inclusive, or any regulation or order adopted or issued under sections 22a-134qq to 22a-134tt, inclusive, such persons shall be jointly and severally liable under this subsection.
(c) If any person violates any provision of sections 22a-134qq to 22a-134tt, inclusive, or any regulation or order adopted or issued under sections 22a-134qq to 22a-134tt, inclusive, the commissioner may request the Attorney General to bring an action in the superior court for the judicial district of Hartford to enjoin such person from such violation and to order remedial measures to prevent, control or abate such violation. All actions brought by the Attorney General pursuant to the provisions of this section shall have precedence in the order of trial as provided in section 52-191.
(d) Any person who violates any provision of sections 22a-134qq to 22a-134tt, inclusive, shall be liable for the penalties provided in section 22a-438, provided any provisions of said section concerning a continuing violation shall not apply to a person or municipality during the time when a hearing on an order issued pursuant to this section or an appeal is pending. The Attorney General, upon complaint of the commissioner, shall institute a civil action in the superior court for the judicial district of Hartford to recover such penalty.
(e) Any person who violates any provision of sections 22a-134qq to 22a-134tt, inclusive, shall be liable for the penalties provided in subsections (b) and (c) of section 22a-438.
(f) The commissioner may, pursuant to section 22a-6b, adopt a schedule for administrative civil penalties for violations of the provisions of sections 22a-134qq to 22a-134tt, inclusive.
(g) Whenever the commissioner finds, after investigation, that any person is creating or maintaining a release to the land and waters of the state in violation of the requirements of sections 22a-134qq to 22a-134tt, inclusive, and such violations are substantial and continuous and it appears prejudicial to the interest of the people of the state to delay action, the commissioner may, without prior hearing, issue a cease and desist order, in writing, to such person to discontinue creating or maintaining such release. The provisions of subsections (b) to (d), inclusive, of section 22a-7 shall apply to any order issued pursuant to this subsection.
(Sept. Sp. Sess. P.A. 20-9, S. 18.)
History: Sept. Sp. Sess. P.A. 20-9 effective October 2, 2020.
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Sec. 22a-134tt. Regulations. Working group. Regulation requirements. Remediation standards considerations. Audit requirements. Incorporation of other requirements. (a) The commissioner shall adopt, amend or repeal regulations, in accordance with the provisions of chapter 54, as are necessary and proper to carry out the purposes of sections 22a-134pp to 22a-134xx, inclusive.
(b) The commissioner, or his or her designee, shall co-chair and convene, in conjunction with the Commissioner of Economic and Community Development, or his or her designee, a working group in the department for the purpose of providing advice and feedback for regulations to be adopted by the commissioner in accordance with the provisions of this section. The Commissioner of Economic and Community Development, or his or her designee, shall serve as co-chair of such working group. The membership of the working group shall include: (1) The chairpersons and ranking members of the joint standing committees of the General Assembly having cognizance of matters relating to the environment and commerce; (2) environmental transaction attorneys; (3) commercial real estate brokers; (4) licensed environmental professionals; (5) representatives from the Connecticut Manufacturers' Collaborative; (6) representatives of environmental advocacy groups; (7) representatives of the Environmental Professionals Organization of Connecticut; (8) municipal representatives; (9) representatives from the brownfields working group established pursuant to section 32-770; (10) representatives of the Connecticut Conference of Municipalities and the Connecticut Council of Small Towns; (11) representatives of the Council on Environmental Quality; and (12) any other interested members of the public designated by the commissioner. The commissioner shall convene monthly meetings of such working group until such time as regulations are adopted pursuant to this section. Not less than sixty days before posting notice on the eRegulations System pursuant to section 4-168, the commissioner shall provide a draft of such regulations to the members of the working group and allow members of the working group to provide advice and feedback on such draft. The members of the working group shall provide such advice and feedback not later than thirty days after the date on which such members receive such draft. Not less than fifteen days before posting such notice on the eRegulations System pursuant to section 4-168, the commissioner shall convene at least one monthly meeting of the working group after providing a draft of such regulations. The commissioner shall provide a revised draft for review by such members prior to posting notice on the eRegulations System pursuant to section 4-168.
(c) Such regulations shall include, but need not be limited to, provisions regarding (1) reporting requirements for any releases required to be reported pursuant to sections 22a-134qq to 22a-134tt, inclusive, including, but not limited to, reportable quantities and concentrations above which a release shall be reported in accordance with said sections; (2) procedures and deadlines for remediation, including public participation; (3) standards for remediation for any release to the land and waters of the state, including environmental use restrictions, as defined in section 22a-133o; (4) verification and commissioner's audit of remediation; (5) supervision of remediation based on pollutant type, concentration or volume, or based on the imminence of harm to public health; and (6) any required fees.
(d) In any regulation adopted pursuant to subsection (a) of this section, the commissioner shall specify tiers of releases based on risk, as determined by the commissioner, and that, based on the tier to which such release is assigned, certain releases may be remediated under the supervision of a licensed environmental professional, without the supervision of the commissioner, and may be remediated without being verified. Tiers of releases shall be specified based on: (1) The existence, source, nature and extent of a release; (2) the nature and extent of danger to public health, safety, welfare and the environment, both immediate and over time; (3) the magnitude and complexity of the actions necessary to assess, contain or remove the release; (4) the extent to which the proposed remediation will not remove the release, in its entirety, from the land and waters of the state but will instead leave behind pollutants to be managed using a risk mitigation approach authorized by regulations adopted pursuant to this section; and (5) the extent to which the oversight of the commissioner is necessary to ensure compliance with the provisions of sections 22a-134qq to 22a-134tt, inclusive.
(e) (1) In any regulation adopted pursuant to subsection (a) of this section, the commissioner shall specify the types of releases to be reported and the timeframe for such reporting. When specifying the types of releases that shall be reported and the timeframes for reporting releases, the commissioner shall consider the factors specified in subdivisions (1), (2), (3) and (5) of subsection (b) of this section.
(2) Such regulations may exempt the requirement for a report if remediation can be accomplished through containment, removal or mitigation of a release upon discovery and in a manner and by a timeframe specified in the regulations adopted pursuant to subsection (a) of this section, provided such regulations shall specify that certain records be maintained by the person performing a cleanup and a schedule for the retention of such records.
(3) Such regulations may require any such report be made in a timeframe commensurate with the severity of the risk posed by such release, with the shortest reporting time corresponding to releases that pose an imminent or substantial threat to human health or the environment, including, but not limited to, residential areas, parks and schools, or releases that exist near drinking water supplies or that present a higher risk to human health or the environment. Such regulations shall permit a longer timeframe for a report of a release that does not pose an imminent or significant threat to human health or the environment.
(4) Such regulations shall provide for a process to amend or retract release reports that were reported in error.
(5) No release required to be reported by regulations adopted pursuant to section 22a-450 shall also be required to be reported by regulations adopted pursuant to subsection (a) of this section.
(f) In establishing standards for remediation adopted pursuant to subsection (a) of this section, the commissioner shall (1) consider the standards for remediation set forth in regulations adopted pursuant to section 22a-133k; (2) give preference to cleanup methods that are permanent, if feasible; (3) provide flexibility, when appropriate, for licensed environmental professionals to establish and implement risk-based alternative cleanup standards developed in consideration of site use, exposure assumptions, geologic and hydrogeologic conditions and physical and chemical properties of each substance that comprise a release; (4) consider any factor the commissioner deems appropriate, including, but not limited to, groundwater classification of the site; and (5) provide for standards of remediation less stringent than those required for residential land use for polluted properties that (A) are located in areas classified as GB or GC under the standards adopted by the commissioner for classification of groundwater, (B) have historically been used for industrial or commercial purposes, and (C) are not subject to an order issued by the commissioner regarding such release, consent order or stipulated judgment regarding such release, provided an environmental use restriction is executed for any such property subsequent to the remedial action, in accordance with the provisions of section 22a-133aa, and such regulations specify the types of industrial or commercial land uses to which any such property may be put subsequent to such remedial action.
(g) The regulations adopted pursuant to subsection (a) of this section regarding audits shall:
(1) Authorize the commissioner to audit any verification;
(2) Set goals for the number of audits to be conducted. Such goals shall be consistent with the requirements of section 22a-134uu and shall, at a minimum, set a goal of auditing twenty per cent of verifications rendered for releases from at least one tier and set a goal of auditing verifications rendered for releases from the other tiers at a frequency that is based on the number of verifications submitted for releases in each tier;
(3) Prioritize the auditing of higher risk releases that may jeopardize human health or the environment;
(4) Utilize multiple levels of auditing. The levels of auditing may include:
(A) Screening documents or forms submitted to the department;
(B) Conducting a thorough evaluation of the verification, including, but not limited to, inspecting a property or requesting additional supporting information regarding an investigation or remediation of a release; and
(C) Auditing focused on specific issues identified in screening documents or forms, conditions specific to a particular release or issues that present a higher risk to human health or the environment; and
(5) Provide certain timeframes for commencing audits that shall be no later than one year after verification and provide opportunities to reopen a remediation when: (A) The commissioner has reason to believe that a verification was obtained through the submittal of materially inaccurate or erroneous information, or otherwise misleading information material to the verification, or that misrepresentations were made in connection with the submittal of the verification, (B) a verification is submitted pursuant to an order of the commissioner, in accordance with section 22a-134ss, (C) any post-verification monitoring, or operations and maintenance, is required as part of a verification and which is not completed, (D) a verification that relies upon an environmental land use restriction was not recorded on the land records of the municipality in which such land is located in accordance with section 22a-133o and applicable regulations, (E) the commissioner determines that there has been a violation of the provisions of sections 22a-134qq to 22a-134tt, inclusive, or (F) the commissioner determines that information exists indicating that the remediation may have failed to prevent a substantial threat to public health or the environment.
(h) In adopting the regulations prescribed by this section, the commissioner shall incorporate the requirements of other cleanup provisions of the general statutes to assure consistency, clarity and efficiency in the application of remediation requirements contained in the general statutes and other applicable provisions of the regulations of Connecticut state agencies by the commissioner and members of the regulated community.
(Sept. Sp. Sess. P.A. 20-9, S. 19; P.A. 22-50, S. 6; 22-118, S. 159.)
History: Sept. Sp. Sess. P.A. 20-9 effective October 2, 2020; P.A. 22-50 amended Subsec. (b) by adding provisions re duties of commissioner and working group members re draft regulations prior to posting notice on eRegulations system, effective May 23, 2022; P.A. 22-18 made identical changes as P.A. 22-50, effective May 7, 2022.
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Sec. 22a-134uu. Auditing of verifications. Report. (a) The commissioner shall audit a sufficient number of verifications submitted pursuant to regulations adopted pursuant to section 22a-134tt to ensure the protection of human health and the environment and a high frequency of compliance with the regulations adopted pursuant to section 22a-134tt.
(b) Beginning two years after the date regulations are first adopted pursuant to section 22a-134tt, and annually thereafter, the commissioner shall provide to the Governor and the joint standing committees of the General Assembly having cognizance of matters relating to the environment and commerce a report regarding the auditing of verifications submitted during the previous year pursuant to regulations adopted pursuant to section 22a-134tt. Such report shall also be published on the department's Internet web site. Any such report shall include, but not be limited to, the number of releases reported, the number of verifications submitted, the number of audits conducted, the results of the audits conducted and any recommendations for improving the auditing of verifications. Such recommendations may include, but need not be limited to, staffing levels or the adequacy of such audits.
(Sept. Sp. Sess. P.A. 20-9, S. 20.)
History: Sept. Sp. Sess. P.A. 20-9 effective October 2, 2020.
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Sec. 22a-134vv. Covenants not to sue. Liability protections. Liability for release prior to ownership. Owner liability. (a) The provisions of sections 22a-134qq to 22a-134tt, inclusive, shall have no effect upon nor be interpreted or construed as changing any covenant not to sue entered into pursuant to section 22a-133aa or 22a-133bb, any liability protection afforded under section 22a-133ee or 32-764, or any liability protections granted pursuant to any brownfields program.
(b) Notwithstanding any provision of the general statutes, and except as provided in this section, no owner of real property shall be liable for any costs or damages to any person other than this state, any other state or the federal government, with respect to any release on or emanating from such owner's real property that occurred or existed prior to such owner taking title to such property, provided:
(1) Such owner did not create the release on such property and is not responsible for the creation of such release pursuant to any other provision of the general statutes;
(2) Such owner is not affiliated with any person responsible for such release through any direct or indirect familial relationship, or any contractual, corporate or financial relationship other than that by which such owner's interest in the property was conveyed or financed; and
(3) The release on such owner's real property has been remediated in accordance with the regulations adopted pursuant to section 22a-134tt, as demonstrated in a verification prepared by a licensed environmental professional and the commissioner has approved in writing, or has determined not to audit, such verification. Remediation undertaken to meet the criteria of this section shall satisfy any requirements to provide public notice, or notice to nearby property owners, specified in regulations adopted pursuant to section 22a-134tt.
(c) This section shall not relieve any such liability where (1) any owner of a parcel on which a release was remediated has failed to comply with the requirements regarding the filing of an environmental use restriction or failed to comply with the provisions of an environmental use restriction created pursuant to section 22a-133o for such real property or with the conditions of a variance for the real property that was approved by the commissioner in accordance with regulations adopted pursuant to section 22a-134tt, or (2) the commissioner, at any time, determines that an owner provided information that the owner knew or had reason to know was false or misleading or otherwise failed to satisfy all of the requirements of subsection (a) of this section. Nothing in this section shall be construed to relieve an owner of any liability for releases on or emanating from such property that occurred or were created after the owner took title to such property. Nothing in this section shall be construed to hold an innocent landowner, as defined in section 22a-452d, who meets the requirements of this section liable to this state for costs or damages in an amount greater than the amount that an innocent landowner may be held liable pursuant to section 22a-432.
(Sept. Sp. Sess. P.A. 20-9, S. 21.)
History: Sept. Sp. Sess. P.A. 20-9 effective October 2, 2020.
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Sec. 22a-134ww. Liability protections of other provisions. Innocent landowner defense. Nothing contained in sections 22a-134qq to 22a-134vv, inclusive, shall be construed to infringe upon or otherwise limit any liability limitations or protections for persons provided for under any provision of the general statutes. Nothing contained in this sections 22a-134qq to 22a-134vv, inclusive, shall be construed to authorize the use or application of the innocent landowner defense, established pursuant to section 22a-452d, to the provisions of sections 22a-134qq to 22a-134vv, inclusive.
(Sept. Sp. Sess. P.A. 20-9, S. 22.)
History: Sept. Sp. Sess. P.A. 20-9 effective October 2, 2020 (Revisor's note: In codifying this section, an incorrect reference to “this act” was deemed by the Revisors to be a reference to “sections 16 to 21, inclusive” and codified as sections 22a-134qq to 22a-34vv, inclusive).
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Sec. 22a-134xx. Commissioner authority. Nothing contained in sections 22a-134qq to 22a-134ww inclusive, shall be construed to affect the authority of the Commissioner of Energy and Environmental Protection pursuant to any other statute or regulation.
(Sept. Sp. Sess. P.A. 20-9, S. 23.)
History: Sept. Sp. Sess. P.A. 20-9 effective October 2, 2020.
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