Sep 19 2013

Contaminated Properties: The Connecticut Department of Energy & Environmental Protection is transforming the way we clean up contaminated properties.

For the past two years, CT DEEP has been working on its Comprehensive Evaluation and Transformation of Connecticut Clean-up laws, which transformation has been reduced to a draft report outlining a new “Transformed Cleanup Program”.  It brings to mind the old adage, be careful what you wish for as it might just come true

For years, those of us who live and breathe the Property Transfer Act have long wished for meaningful revisions to make the statute more workable, fair and successful.  What began as a simple, well-meaning environmental disclosure back in the mid 1980’s has morphed, so many years later, into an unwieldy albatross around the neck of owners of “establishment” properties and businesses, imposing significant costs and liabilities, with little hope of closure once in the program.   Who wouldn’t, in their right mind, want this law gone? Well, that is exactly what CTDEEP is proposing as part of their transformation, an October 2014 sunset of the almost 30 year old infamous Property Transfer Act. 

So what, you might ask, will fill the void?  The CTDEEP is proposing to “transform” from a long- standing, transaction-based trigger for investigating and cleaning up contaminated property, to a pure release-based system, whereby the simple knowledge of a release of contamination, whether current or historical, would, in and of itself, trigger liability of the owner to fully investigate and clean-up the contamination to satisfy State standards.  This is a dramatic shift in how things are done in Connecticut. 

The Property Transfer Act is essentially the only law on the books that imposes strict liability on an owner for investigating and cleaning up an “establishment” property at the time that “establishment” property or business is actually being sold.   Otherwise, remediation of existing contamination at a property is not legally required, so long as the contamination is not emanating off-site or posing a significant environmental hazard (and then full remediation may not be required).  CTDEEP’s proposed transformation will change all of that and the implications to existing businesses, property owners and those currently involved in the Property Transfer Act program remains questionable.   The Property Transfer Act has served a valuable purpose in ensuring that, at the time of a transaction, when there is knowledge available and money on the table, there is a legal requirement to investigate and cleanup contaminated properties.  It has led to many success stories, which, without those two key factors -- knowledge and money-- would not necessarily have resulted in those properties being cleaned up. 

However, of the approximately 4000 sites currently in the Property Transfer Act program, only about 500 have actually been closed out and about 3500 remain open.  The real albatross in this picture is not necessarily the Property Transfer Act, as that can easily be tweaked to make the law more workable and fair.  The key to these sites not reaching closure under the Property Transfer Act lies with the clean-up standards used by the CTDEEP to close out these sites.  The Remediation Standard Regulations, or RSRs, which have been on the books since 1996, are at the root of many of these Transfer Act sites remaining open for years, if not decades.  The RSRs are the tools used to determine if a site has been cleaned up.  Their continuing inflexibility, together with the Department’s strict implementation, have resulted in many sites reaching an impasse, beyond which, oftentimes, the cost of achieving compliance far outweighs any environmental benefit-- and that is assuming the Certifying Party has the resources available to meet these very stringent requirements. 

Before any meaningful transformation can really happen, CTDEEP needs to first do two things:

  1. evaluate all of the impacts and potential unintended consequences of sun setting the Property Transfer Act versus revising the Act to make it more workable; and
  2.  conduct a comprehensive examination and review of the RSRs in an effort to revise the standards and tools contained in the RSRs to better align with current science and risk-based approaches to remediating contamination.  

For more information on CTDEEP’s transformation, see:  www.ct.gov/deep/remediation-transform