With Changes, Bill Would Help Environment, Economy

April 11, 2011 Published Work
Connecticut Law Tribune,, Vol. 37, No. 15

No one appears to disagree that contaminated properties that lie boarded up, idle, or under-utilized burden the state of Connecticut. Further, public resources to clean up these sites are increasingly scarce and, if not cleaned up and redeveloped, these sites threaten public health and the environment. Remediation and redevelopment of these sites would result in job creation and enlarged tax bases.

Connecticut's brownfield "problem" de­mands a brownfield "solution." Our historical piecemeal and disjointed legislative efforts lag sadly behind other states in returning brown­fields – large and small – to productive reuse. We need a comprehensive one-stop program specifically designed to encourage, attract, and incentivize innocent owners and developers, to commit and attract private re­sources to purchase, investigate, and to clean up and redevelop these sites Such a program appears as Section 17 of Raised Bill 6526, in­troduced in early March.

This one-stop comprehensive program provides clarity, predictability, simplicity, certainty, and efficiency, all geared to attract redevelopment and jobs in tough economic times with scarce public resources. The bill also aims to shift the expenditure of funds for cleanup of brownfield sites from pub­lic to private sources. With the exception noted below (which the legislature should change before enactment), Section 17 pro­vides needed reforms for resolving risk and liability issues for innocent parties in a manner that will attract redevelopment and jobs while preserving environmental goals.

Section 17 uses many of the same pro­cedures as the current Voluntary Remedia­tion Programs found in sections 22a-133 et seq. of the Connecticut General Statutes and is consistent with all the state's require­ments for site-wide cleanup. Yet, it provides a more streamlined and faster process.

Key points:

  • Only innocent persons or entities that did not cause the contamination at an eligible property and who do not have any relationship or association with any person who is or may be responsible for contamination at the eligible property may apply to participate in this program.

  • Upon approval of an application to the program, in exchange for protection from liability for the contamination which it did not cause, the participant agrees to conduct a comprehensive investigation of the property and to clean up the contami­nation within the property boundaries. This participant must report to the state any significant environmental hazards found to be migrating off-site, as current­ly required under state law.

  • Before initiating remediation of the property, the participant must submit a remedial plan for Department of Envi­ronmental Protection approval, provide the same public notice required for all current site cleanup programs, and then remediate the site to meet the same State cleanup standards (the Re­mediation Standard Regula­tions) re­quired for all current cleanup programs.

  • Program participants will receive expe­dited permitting and reliable approval timeframes to avoid costly and un­reasonable delays in site remediation, thereby avoiding delays in site redevel­opment.

  • Upon completion of remediation, the participating party must submit a final cleanup report for DEP approval. The DEP may audit and review the cleanup plan as it now does for all current site cleanup programs.

  • Most important, upon approval of the re­mediation, the DEP shall issue a Notice of Completion of Remedy and No Further Action Letter, a necessary and definite end point for the innocent redeveloper.

Viewed as a whole, the bill moves sig­nificantly toward spurring private develop­ment of brownfield sites without the use of public funds. However, the bill as proposed includes two unnecessary and devastating impediments which, if not removed, will frustrate the goal of providing a certain, clear, and safe pathway to encourage inno­cent eligible parties to redevelop these con­taminated sites.

First, the bill puts a limit on the num­ber of eligible properties to "no more than twenty properties at a time." The state should encourage as many eligible parties and sites as possible to enter this program, resulting in the greatest number of sites being remedi­ated with private funds and maximum eco­nomic development and job creation.

Any concern regarding agency staffing and administrative costs involved in re­viewing more than 20 applications could be addressed by adding provisions that im­pose application fees and reimbursement of costs for agency administrative expenses, similar to systems in other states.

Second, the eligibility criteria are based on economic planning, job creation, and other non-environmental discretionary factors. This program provides no pub­lic funding and as such, eligibility should be limited only to whether a party meets the test of an innocent party with respect to site-contamination and the site itself meets the statutory definition of a brown­field.

The various non-environmental "public policy" elements in Section 17 as intro­duced may be appropriate for considering how to allocate scant public funds. Impos­ing socio-economic political factors for eligibility determinations, however, will discourage use of the program for all but the largest projects while hundreds, if not thousands, of smaller sites that desperately need remediation will never attract the at­tention of an interested developer.

Putting discretion over eligibility for li­ability relief in the hands of appointed gov­ernment officials will require developers to devote limited funds to political "beauty pageants" in which they will have to risk their money on the comparative sexiness of their projects. Cleanup of a contaminated property should not depend upon a "Miss America" type selection process: contin­gent economic factors will surely prejudice certain communities and sites.

The requirements for application should be clear and equitable, which will require removing the numerical and subjective ele­ments from Section 17.

Raised Bill 6526 comprises an innovative effort to attract private investment to redevel­op and clean up our state's Brownfield sites for productive reuse and job creation. Once the limitations on the number of sites and the im­position of non-environmental criteria now proposed in HB 6526 are removed, and some other important details are ironed out, the bill will deserve the ardent support of those who seek to achieve both a clean environment and a strong economy.