Sec. 22a-133aa. Covenant not to sue prospective purchasers or owners of contaminated land. Approval of remediation plan by commissioner. Fee.
Sec. 22a-133aa. Covenant not to sue prospective purchasers or owners of contaminated land. Approval of remediation plan by commissioner. Fee. (a) The Commissioner of Environmental Protection may enter into a covenant not to sue with any
prospective purchaser or owner of contaminated real property provided (1) a detailed
written plan for remediation of the property, in accordance with standards adopted by
said commissioner pursuant to section 22a-133k, has been approved by the Commissioner of Environmental Protection which plan shall be incorporated by reference in
the covenant, (2) the Commissioner of Environmental Protection has approved a final
remedial action report for such property, or (3) if before any approval by the commissioner of a detailed written plan or final remedial action report for such property, the
commissioner has approved a brownfield investigation plan and remediation schedule,
as defined in subsection (f) of section 22a-133aa, which investigation plan and remediation schedule shall be incorporated by reference in the covenant. No such covenant may
be entered into unless such purchaser or owner has demonstrated to the satisfaction of
the commissioner that such purchaser or owner (A) did not establish or create a facility
or condition at or on such property which reasonably can be expected to create a source
of pollution to the waters of the state for purposes of section 22a-432 and has not maintained any such facility or condition at such property for purposes of said section, and
such purchaser is not responsible pursuant to any other provision of the general statutes
for any pollution or source of pollution on the property; (B) 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
that by which such purchaser's interest in such property is to be conveyed or financed;
and (C) will redevelop the property for productive use or continue productive use of
such property provided the commissioner determines that the covenant not to sue is in
the public interest. Upon the request of a successor of an original holder of a covenant
issued under this section, the commissioner shall enter into such covenant with such
successor if such successor certifies to the satisfaction of the commissioner that such
successor complies with subparagraphs (A), (B) and (C) of this subsection. The commissioner may enter into a covenant not to sue with any lending institution to whom a
prospective purchaser of contaminated real property conveys a security interest in such
property provided such institution has demonstrated to the satisfaction of the commissioner that such institution did not establish or create a facility or condition at or on such
property which reasonably can be expected to create a source of pollution to the waters
of the state for purposes of section 22a-432 and has not maintained any such facility
or condition at such property for purposes of said section, and such institution is not
responsible pursuant to any other provision of the general statutes for any pollution or
source of pollution on the property. Any covenant issued to a lending institution under
this section shall be effective with respect to any lending institution which is a successor
in interest to the original lending institution provided such successor lending institution
did not establish or create a facility or condition at or on such property which reasonably
can be expected to create a source of pollution to the waters of the state for purposes of
section 22a-432 and has not maintained any such facility or condition at such property
for purposes of said section, and such institution is not responsible pursuant to any other
provision of the general statutes for any pollution or source of pollution on the property.
(b) Any covenant entered into under this section shall release only those claims said
commissioner may have which are related to pollution or contamination on or emanating
from the property, which contamination resulted from a discharge, spillage, uncontrolled
loss, seepage or filtration on such property prior to the effective date of the covenant.
Such covenant shall provide that the commissioner will not take any action against the
holder of the covenant to require remediation of the parcel or any other action against
such holder related to such discharge, spillage, uncontrolled loss, seepage or filtration
unless (1) prior to the commissioner's approval of a detailed written plan for remediation
pursuant to a brownfields investigation plan and remediation schedule, the commissioner finds that there is substantial noncompliance with such investigation plan and
remediation schedule and there has not been a good faith effort to substantially comply
therewith, (2) such property is not remediated in accordance with the detailed written
plan approved by the commissioner and incorporated by reference in such covenant,
(3) prior to completion of remediation in accordance with such plan, the commissioner
finds that there is substantial noncompliance with any such plan and there has not been
a good faith effort to substantially comply therewith, (4) remediation of the parcel in
accordance with any detailed written plan for remediation did not comply with standards
adopted by the commissioner pursuant to section 22a-133k which were in effect as of
the effective date of either the covenant or the commissioner's approval of the detailed
written plan for remediation, whichever is later, (5) if required by the standards adopted
by the commissioner pursuant to section 22a-133k, an environmental land use restriction
has not been recorded in accordance with section 22a-133o or there has been a failure
to comply with the provisions of such a restriction, (6) for a property subject to the
brownfield plan and remediation schedule, the commissioner does not approve a detailed
written plan for remediation, or (7) the prospective buyer or owner fails to pay the fee,
including fails to pay in accordance with any payment schedule pursuant to subsection
(c) of this section.
(c) (1) Any prospective purchaser or owner receiving a covenant not to sue pursuant
to this section shall pay to the commissioner a fee equal to three per cent of the value
of the property for which the covenant was issued provided such property is appraised
as if it were uncontaminated. Such fee shall be deposited into the Special Contaminated
Property Remediation and Insurance Fund established under section 22a-133t. No such
fee shall be required for a covenant issued to a successor in interest to the original
covenant, for a covenant issued in connection with a remediation project conducted
under section 22a-133m, or for a municipality or municipal economic development
agency or a nonprofit economic development corporation formed to promote the common good, general welfare and economic development of a municipality that is funded,
either directly or through in-kind services, in part by a municipality and such corporation's officers and directors.
(2) Notwithstanding any other provision, the commissioner may approve a written
payment schedule of the fee set forth in subdivision (1) of subsection (c) of this section,
for a prospective purchaser or owner receiving the covenant not to sue and who has a
brownfield investigation plan and remediation schedule approved by the commissioner.
Any such payment schedule shall be incorporated by reference into the covenant.
(d) A covenant not to sue issued under this section may provide for continued monitoring in accordance with the remediation standards adopted under section 22a-133k,
and, if further remediation is necessary based upon the results of such monitoring, that
further action will be taken to remediate the property in accordance with such standards.
(e) A covenant not to sue issued under this section shall not preclude the commissioner from taking any appropriate action, including, but not limited to, any action to
require remediation of the property, if he determines that the covenant not to sue was
based on information provided by the person seeking the covenant which information
such person knew, or had reason to know, was false or misleading.
(f) A "brownfield investigation plan and remediation schedule" means a plan and
schedule for investigation, and a schedule for remediation, of any abandoned or underutilized site where redevelopment and reuse has not occurred due to the presence of pollution on the soil or groundwater that requires remediation prior to or in conjunction
with the restoration, redevelopment and reuse of the property. The commissioner may
determine for each property whether the commissioner will oversee the investigation
and remediation of the property or whether such oversight will be delegated to a licensed
environmental professional. For each property subject to a covenant under this section
based on an approved brownfield investigation plan and remediation schedule, the owner
or prospective purchaser shall perform all investigation and remediation activities under
the direction of a licensed environmental professional, and shall ensure that all documents required to be submitted contain a written approval of a licensed environmental
professional, even at properties for which the commissioner has not delegated oversight
to a licensed environmental professional. Each investigation plan and remediation
schedule shall provide a schedule for activities including, but not limited to, completion
of the investigation of the property in accordance with prevailing standards and guidelines, submittal of a complete investigation report, submittal of a detailed written plan
for remediation, completion of remediation in accordance with standards adopted by
said commissioner pursuant to section 22a-133k, and submittal of a final remedial action
report. At a minimum, the detailed written plan for remediation shall be submitted,
pursuant to the schedule, for the commissioner's review and, as appropriate, approval.
If the commissioner approves the detailed written plan for remediation, the plan shall
be considered incorporated by reference into the covenant not to sue. The commissioner
may require submittal of other plans and reports for the commissioner's review and
approval.
(P.A. 96-113, S. 10, 17; P.A. 98-253, S. 4; P.A. 07-233, S. 12.)
History: P.A. 96-113 effective May 24, 1996; P.A. 98-253 authorized covenants with owners of real property under
this section, required approval by the commissioner of remediation plans prior to approving covenants, and added provision
in Subsec. (b)(4) re failure to comply with restriction provisions; P.A. 07-233 added Subsec. (a)(3) re investigation plan
and remediation schedule, added new Subsec. (b)(1) re finding of substantial noncompliance with plan and schedule,
redesignated existing Subsec. (b)(1) to (4) as Subsec. (b)(2) to (5), added Subsec. (b)(6) and (7) re nonapproval of remediation plan and failure to pay fee, redesignated existing Subsec. (c) as Subsec. (c)(1), exempted municipalities, municipal
economic development agencies and certain nonprofit economic development corporations from fee required in Subsec.
(c)(1), added Subsec. (c)(2) re payment schedules, added Subsec. (f) re brownfield investigation plan and remediation
schedule and made conforming technical changes, effective July 1, 2007.