A “Wave” of Changes to Connecticut’s Environmental Regulatory Programs and More to Come

On February 16, 2021, two important sets of changes to Connecticut’s environmental remediation regulations went into effect.  The changes to the Remediation Standard Regulations (RSRs) and the new Environmental Use Restriction (EUR) Regulations, known as the “Wave 2 RSRs” and the “EUR Regulations,” respectively, are intended to facilitate environmental remediation at contaminated sites by providing additional flexibility and decrease the extent of Connecticut Department of Energy and Environmental Protection (DEEP) oversight required.  See DEEP’s public announcement regarding the adoption of these regulatory changes here.  

Wave 2 RSRs and EUR Regulations

One of the key changes in the Wave 2 RSRs and new EUR Regulations is that they will allow the use of Notices of Activity and Use Limitation (NAULs) (as opposed to more formal Environmental Land Use Restrictions (ELURs)) that can be implemented by a Connecticut Licensed Environmental Professional (LEP) without approval from the DEEP.  The intent is to allow for use of an NAUL in lieu of active remediation (e.g., excavation) or an ELUR, both of which options would likely be significantly more costly and time consuming.  For example, certain NAULs would not require formal subordination agreements from third parties that have an interest in the land (e.g., easement holders), which would otherwise be required for an ELUR.  In addition, the EUR Regulations create a category of “allowable disturbances,” which can be authorized by LEPs to quickly authorize minor soil excavation work that would otherwise be prohibited by a recorded restriction.  

In addition, the Wave 2 RSRs are intended to expedite remediation efforts by authorizing LEPs to use an engineered control or widespread polluted fill variance without DEEP approval.  According to DEEP, the Wave 2 RSRs also are intended to expand opportunities for RSR compliance based on environmental and human health risk evaluations by permitting a broader range of release-specific remedies, including alternative surface water protection criteria using the new aquifer dilution calculation as a release-specific remedy.

As Always, the Devil is in the Details

While approval of these key environmental regulatory packages (which in the case of the Wave 2 RSRs was 7+ years in the making!) fulfilled one of the goals established by DEEP’s 20 BY 20 initiative, companies and individuals involved in environmental cleanups and brownfield redevelopment in Connecticut will want to carefully evaluate whether these changes provide an opportunity, an additional hurdle, or both.  For example, while applications currently pending with DEEP and considered administratively complete (e.g., requesting approval of an ELUR) remain subject to the regulations in effect at the time of submittal, pending applications should be evaluated on a case-by-case basis to determine if it would be advantageous (or not) to withdraw or amend the application to utilize the benefits of the new regulations.  

Other Changes in the Works

In the meantime, DEEP, along with input from the Department of Economic and Community Development and a formal “Work Group” consisting of environmental transactional attorneys (including Shipman attorneys), consultants and LEPs, real estate professional and others, are also developing an entirely new release-based cleanup program to replace the often (and appropriately) criticized business and real estate transaction-based environmental program known as the Connecticut Transfer Act. 

The new release-based cleanup program is being developed pursuant to Public Act No. 20-9 passed last year, which also included important amendments (and, in some cases, much needed fixes) to the Transfer Act.  See our alert regarding Public Act No. 20-9 here. 

While any further statutory changes and the regulations necessary to implement the new release-based program are being developed (likely 2+ years away), all of us in Connecticut will need to continue to live with the Transfer Act. 

As if there was not already enough going on, DEEP also plans to issue proposed spill reporting regulations (pursuant to Conn. Gen. Stat. § 22a-450); a regulatory package that has been in the works and debated since the early 1990s.  The spill reporting regulations, which were discussed conceptually during public outreach meetings in 2020, will address the requirements for reporting new spills and provide specific time frames and requirements based on the amount and type of substance released.  Importantly, the spill reporting regulations being developed (and currently under review by the Offices of the Governor and Attorney General) are not intended to address historic releases, only new releases.  While the spill reporting regulations and the to-be-developed release-based cleanup program regulations will undoubtedly overlap, the processes for moving forward with both programs are on separate/independent tracks.  Time will tell how (and how well) they ultimately get integrated and reconciled.      

Conclusion

Although the Wave 2 RSRs and EUR Regulations include changes that should be helpful to the regulated community, it is not yet clear how they will be applied in practice as DEEP, environmental consultants, property owners and attorneys adjust to the new standards and, importantly, wait for DEEP to issue the all-important forms, fact sheets and guidance associated with the new regulations.  As always, anyone dealing with brownfields in Connecticut is best served when working with qualified and knowledgeable environmental professionals.

Please contact the authors or your primary Shipman contact with any questions.