§ 32-768 — (Formerly Sec. 32-9ll). Abandoned brownfield cleanup program.

Connecticut § 32-768

• Jurisdiction: Connecticut
• Title 32: Commerce and Economic and Community Development
• Ch. 588gg: Brownfield Remediation and Development

Text

(a) There is established an abandoned brownfield cleanup program. The Commissioner of Economic and Community Development shall determine, in consultation with the Commissioner of Energy and Environmental Protection, properties and persons eligible for said program. (b) For a person or a property to be eligible, the Commissioner of Economic and Community Development shall determine if (1) the property is a brownfield, as defined in section 32-760 , that has been unused or significantly underused for at least five years before an application is filed with the commissioner pursuant to subsection (h) of this section; (2) such person intends to acquire title to such property for the purpose of redeveloping such property; (3) the redevelopment of such property has a regional or municipal economic development benefit; (4) such person did not establish or create a facility or condition at or on such property that can reasonably be expected to create a source of pollution to the waters of the state for the purposes of section 22a-432 and 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 a relationship by which such owner's interest in such property is leased for a term not exceeding five years or is to be conveyed or financed; (5) such person is not otherwise required by law, an order or consent order issued by the Commissioner of Energy and Environmental Protection or a stipulated judgment to remediate pollution on or emanating from such property; (6) the person responsible for pollution on or emanating from the property is indeterminable, is no longer in existence, is required by law to remediate releases on and emanating from the property or is otherwise unable to perform necessary remediation of such property; and (7) the property and the person meet any other criteria said commissioner deems necessary. (c) Notwithstanding the provisions of subsection (b) of this section, a property owned by a municipality, a Connecticut brownfield land bank or an economic development agency shall not be subject to subdivision (6) of subsection (b) of this section. (d) Notwithstanding the provisions of subsection (b) of this section, a municipality or a Connecticut brownfield land bank may request the Commissioner of Economic and Community Development to determine if a property is eligible regardless of the person who currently owns such property. (e) Notwithstanding subsection (b) of this section, the Commissioner of Economic and Community Development may waive the requirement of subdivision (1) of subsection (b) of this section, if the person seeking eligibility under this section otherwise demonstrates the eligibility of the property and the value of the redevelopment of such property. (f) Upon designation by the Commissioner of Economic and Community Development, in consultation with the Commissioner of Energy and Environmental Protection, of an eligible person who holds title to such property, such eligible person shall (1) enter the voluntary remediation program established in section 22a-133x not later than six months after the date such eligible person takes title to such property, except that the Commissioner of Economic and Community Development, in consultation with the Commissioner of Energy and Environmental Protection, may allow such eligible person to enter such voluntary remediation program later than six months after the date such eligible person takes title to such property; (2) remain in and comply with the requirements of such voluntary remediation program; (3) investigate pollution on such property in accordance with prevailing standards and guidelines and remediate pollution on such property in accordance with regulations established for remediation adopted by the Commissioner of Energy and Environmental Protection and in accordance with applicable schedules; and (4) eliminate further emanation or migration of any pollution from such property. (g) An eligible person who has been accepted by the commissioner or holds title to an eligible property designated to be in the abandoned brownfield cleanup program, and who remains in compliance with subsection (f) of this section, shall not be responsible for investigating or remediating any pollution or source of pollution that has emanated from such property prior to such person taking title to such property, and shall not be liable to the state or any person for the release of any regulated substance at or from the eligible property prior to taking title to such eligible property except and only to the extent that such applicant caused or contributed to the release of a regulated substance that is subject to remediation or negligently or recklessly exacerbated such condition. (h) Any applicant seeking a designation of eligibility for a person or a property under the abandoned brownfield cleanup program shall apply to the Commissioner of Economic and Community Development at such times and on such forms as the commissioner may prescribe. (i) Not later than sixty days after receipt of the application, the Commissioner of Economic and Community Development shall determine if the application is complete and shall notify the applicant of such determination. (j) Not later than ninety days after determining that the application is complete, the Commissioner of Economic and Community Development shall determine whether to include the property and applicant in the abandoned brownfield cleanup program. The applicant shall have two years from the date on which the commissioner designates such property for inclusion in the abandoned brownfield cleanup program to acquire title to the designated property. The commissioner may, at the commissioner's discretion, extend such deadline for acquiring such property upon the request of the applicant. (k) Designation of a property in the abandoned brownfield cleanup program by the Commissioner of Economic and Community Development shall not limit the applicant's or any other person's ability to seek funding for such property under any other brownfield grant or loan program administered by the Department of Economic and Community Development, Connecticut Innovations, Incorporated or the Department of Energy and Environmental Protection. (l) Designation of a property in the abandoned brownfield cleanup program by the Commissioner of Economic and Community Development shall exempt such eligible person from filing as an establishment pursuant to sections 22a-134a to 22a-134d , inclusive, if such real property or prior business operations constitute an establishment. (m) (1) Not later than sixty days after the receipt of a verification, as defined in section 22a-133x , for such property or portion of such property, the Commissioner of Energy and Environmental Protection shall notify such eligible person and the Commissioner of Economic and Community Development whether the Commissioner of Energy and Environmental Protection will conduct an audit of such verification. The Commissioner of Energy and Environmental Protection shall conduct any such audit not later than one hundred eighty days after the department's receipt of such verification, except as provided in subdivisions (2) and (3) of this subsection. Not later than fourteen days after the completion of any such audit, the Commissioner of Energy and Environmental Protection shall provide written audit findings to such eligible person, the Commissioner of Economic and Community Development and the licensed environmental professional that issued such verification. The written audit findings shall approve or disapprove of such verification, provided any written audit findings disapproving of such verification shall include the reasons for such disapproval. (2) The Commissioner of Energy and Environmental Protection may request additional information from an eligible person during any audit of a verification. If such eligible person does not provide the requested information to said commissioner within fourteen days of such request, the time period to conduct an audit under subdivision (1) of this subsection shall be suspended until such information is provided to said commissioner. (3) The Commissioner of Energy and Environmental Protection may conduct an audit of any verification later than one hundred eighty days after the receipt of such verification by the Department of Energy and Environmental Protection (A) to the extent the time period to conduct such audit is suspended pursuant to subdivision (2) of this subsection; (B) if said 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 material misrepresentations were made in connection with the submittal of the verification; (C) if any post-verification monitoring of operations and maintenance is required as part of a verification and such monitoring has not been completed; (D) if such verification relies upon an environmental land use restriction that was not recorded on the land records of the municipality in which such property is located, pursuant to section 22a-133o or any applicable regulations; (E) if said commissioner determines that there has been a violation of law material to the verification; or (F) if said commissioner determines that information exists that indicates that the remediation may have failed to prevent releases on the property that are a substantial threat to public health or the environment. (n) Not later than sixty days after such eligible person's receipt of a notice of disapproval of a verification for a property from the Commissioner of Energy and Environmental Protection, such eligible person shall submit to the Commissioners of Energy and Environmental Protection and Economic and Community Development a report of cure of noted deficiencies. Not later than sixty days after the receipt of such report of cure of noted deficiencies by the Commissioner of Energy and Environmental Protection, said commissioner shall issue a successful audit closure letter or a written disapproval of such report of cure of noted deficiencies. (o) Upon completion of the requirements of subsection (f) of this section to the satisfaction of the Commissioner of Energy and Environmental Protection, such person shall qualify for a covenant not to sue from the Commissioner of Energy and Environmental Protection without fee, pursuant to section 22a-133aa . (p) Any person designated as an eligible person under the abandoned brownfield cleanup program shall not be liable to the Commissioner of Energy and Environmental Protection or any person under section 22a-432 , 22a-433 , 22a-451 or 22a-452 or other similar statute or common law for conditions preexisting or existing on the brownfield property as of the date of acquisition or control as long as the person (1) did not establish, cause or contribute to the discharge, spillage, uncontrolled loss, seepage or filtration of such hazardous substance, material, waste or pollution; (2) does not exacerbate the conditions; (3) complies with reporting of significant environmental hazard requirements in section 22a-6u ; and (4) remains in compliance with subsection (f) of this section. To the extent that any conditions are exacerbated, the person shall only be responsible for responding to contamination exacerbated by its negligent or reckless activities. (q) Any person who acquires a property in the abandoned brownfield cleanup program shall apply to the Commissioner of Economic and Community Development on a form prescribed by the commissioner to determine if such person qualifies as an eligible party under the abandoned brownfield cleanup program. If the commissioner determines that such person is an eligible party, such eligible party shall be subject to the provisions of this section, and shall receive liability relief pursuant to subsections (g), (l), (o) and (p) of this section.

Legislative History

(P.A. 09-235, S. 7; P.A. 11-80, S. 1; 11-141, S. 9; June 12 Sp. Sess. P.A. 12-1, S. 152; P.A. 13-308, S. 9; P.A. 17-214, S. 13; P.A. 22-68, S. 1.) History: Pursuant to P.A. 11-80, “Commissioner of Environmental Protection” and “Department of Environmental Protection” were changed editorially by the Revisors to “Commissioner of Energy and Environmental Protection” and “Department of Energy and Environmental Protection”, respectively, effective July 1, 2011; P.A. 11-141 redesignated existing Subsec. (a) as Subsecs. (a) and (b) and existing Subsec. (b) as Subsecs. (g) and (h), amended Subsec. (b) to add references to municipality, to change time frame the property must have been underused from “since October 1, 1999” to at least five years before the application in Subdiv. (1), and to add “is required by law to remediate releases on and emanating from the property” in Subdiv. (6), added new Subsec. (c) re definition of “municipality”, added new Subsecs. (d) to (f) re certain waivers and exceptions, amended Subsec. (g) to add provisions re consultation with Commissioner of Environmental Protection and re municipalities and to remove requirement that person not be a certifying party, amended Subsec. (h) to add provisions re municipality and re liability protection, redesignated existing Subsecs. (c) to (f) as Subsecs. (i) to (l), added Subsecs. (m) to (p) re exemptions and requirements, and made technical changes, effective July 1, 2011; pursuant to June 12 Sp. Sess. P.A. 12-1, “Connecticut Development Authority” was changed editorially by the Revisors to “Connecticut Innovations, Incorporated” in Subsec. (l), effective July 1, 2012; P.A. 13-308 deleted references to municipality, deleted former Subsec. (c) re definition of “municipality”, redesignated existing Subsecs. (d) to (p) as Subsecs. (c) to (o) and made technical and conforming changes, effective July 1, 2013; Sec. 32-9 ll transferred to Sec. 32-768 in 2014; P.A. 17-214 amended Subsec. (c) by adding “, a Connecticut brownfield land bank or an economic development agency” and amended Subsec. (d) by adding “or a Connecticut brownfield land bank”, effective July 1, 2017; P.A. 22-68 amended Subsec. (b)(4) by adding provision re lease of property for a term not exceeding 5 years, amended Subsec. (f) by adding provision in Subdiv. (1) re six month deadline to enter voluntary remediation program, adding new Subdiv. (2) re remaining in and complying with requirements of program and redesignating existing Subdivs. (2) and (3) as Subdivs. (3) and (4), amended Subsec. (g) by adding provision re requirement for eligible person to remain in compliance with Subsec. (f), amended Subsec. (j) by adding provision re 2 year deadline to acquire title to designated property, added new Subsec. (m) re verification audits, added new Subsec. (n) re notices of disapproval of verification, amended existing Subsec. (n) by adding Subdiv. (4) re requirement for eligible person to remain in compliance with Subsec. (f), redesignated existing Subsecs. (m) to (o) as Subsecs. (o) to (q) and made technical and conforming changes.