Attorney Mary Mintel ()
Connecticut, like many other states, has numerous contaminated properties. The contamination could be because of historic conditions or more current releases. Eventually, some entity will become responsible for investigating and remediating that contamination as a result of an administrative order, judicial decree, settlement, contractual agreement or through Connecticut’s Transfer of Establishments Act (Transfer Act) (Connecticut General Statutes §§ 22a-134 et seq.).
Regulators, attorneys and consultants often default without question to Connecticut’s Remediation Standard Regulations, or RSRs, as the standard for site remediation.
Remediation under the RSRs, however, can be very expensive and time-consuming. The Connecticut Department of Energy and Environmental Protection reports that of 3,762 sites in the Transfer Act program, only 395 have achieved “verification” of compliance with the RSRs. Therefore, it is important to know that the RSRs do not apply in all circumstances. Alternate remediation criteria that may be less costly, quicker and equally protective of potential site risks can be used for cleaning up contaminated property.
In 1996, the state adopted the RSRs, which can be found in §§ 22a-133k-1 through -3 of the Regulations of Connecticut State Agencies. These regulations set forth comprehensive and detailed standards for investigating and remediating contaminated soils and groundwater. The RSRs are not for the uninitiated. They set objective remediation criteria for many contaminants found in soils or groundwater, and several exceptions and variances may be used to achieve compliance.
Environmental Land Use Restrictions, or ELURs, are also a mechanism for reaching the RSR goals. Most of the RSR work is performed by a licensed environmental professional (LEP). The DEEP has prepared guidance documents to assist in maneuvering through the RSRs. The “finish line” of site remediation is “verification” from an LEP that the objective soil and groundwater criteria at a site have been met.
The problem with the RSRs, in addition to the cost and time, is they do not take into account site-specific risks. There is a passing attempt to do that through the variances, exemptions and ELURs, but RSR remediation of contaminated properties does not provide an easy means for tailoring remediation to the specific risks present on a site as can be found in other states. Fortunately, Connecticut law only requires the RSRs be used for a limited set of site conditions. For those situations in which the RSRs do not apply, cleanup can become a negotiated process where site-specific risks predominate.
So when do the RSRs apply? In § 22a-133k, the DEEP was given the authority to adopt regulations “setting forth the standards for the remediation of environmental pollution at hazardous waste disposal sites and other properties which have been subject to a spill, as defined in section 22a-452c.”
The RSRs are the progeny of this mandate. The “Applicability” section of the regulations states that the RSRs apply to (a) any action pursuant to Public Act 95-183 or Public Act 95-190 or (b) any action to remediate polluted soil, surface water or a groundwater plume at or emanating from a release area, which action is required pursuant to Chapter 445 or 446k.
Public Acts 95-183 and 95-190 establish the state’s two voluntary remediation programs at §§ 22a-133x and 133y. Chapter 445 contains the state’s hazardous waste statutes. Under these laws, the DEEP is authorized to establish a program for the discovery and evaluation of “hazardous waste disposal sites.” Remedial action is required for only certain of these hazardous waste disposal sites. The Transfer Act, which explicitly requires the use of the RSRs, is also found in Chapter 445.
Chapter 446k is the state’s water pollution control statute. Several sections of this chapter prohibit unpermitted discharges or pollution of any waters of the state. However, very few sections of this chapter require remediation, and where remediation is required, a DEEP order is a prerequisite. And under some statutes, DEEP can only order a person to “abate” the pollution (§§ 22a-428, 22a-430(d) or 22a-431), while under other laws, DEEP can issue an order to “correct” a source of pollution (§§ 22a-432 and 22a-433). The distinction is important for purposes of applying the RSRs. An order to abate is an order to stop the offending condition; it is not an order to remediate. In contrast, an order to correct is arguably an order to remediate, thus requiring use of the RSRs.
You are not alone if you are confused as to when the RSRs must be applied. Consider the following quotes:
• The DEEP acknowledges that the current system—with some pollution being addressed on a release basis and some on a propertywide basis—creates confusion and is not efficient. (DEEP Draft Proposed Program Outline for a Transformed Cleanup Program, Sept. 27, 2012.)
• In Connecticut, if a company knows it has had a past release of a hazardous substance, it may not be clear at times what the cleanup “finish line” is or within what time frame cleanup must be finished. One or more of the 14 different laws might apply depending on the specific facts of the matter. Generally, the laws have different procedures for actions and different time frames and finish lines, if any. (DEEP Comprehensive Evaluation of Connecticut’s Site Cleanup Programs, a white paper released in January 2011.)
The DEEP acknowledges the RSRs are the published “finish line” for the Transfer Act, the two voluntary remediation programs, corrective action under federal law, underground storage tank cleanups (in part), and the PCB program. As discussed above, the RSRs are also the finish line where the DEEP has issued an order to correct under §§ 22a-432 or 433, or if a property is on the inventory of hazardous waste disposal sites. Otherwise, the RSRs expressly do not apply to the site cleanup. The DEEP even agrees in its January 2011 white paper that some laws do not specify a finish line “and instead merely initiate a process, leaving vague what the law intended as a successful endpoint or final compliance.”
Yet, in a recent case the DEEP argued the RSRs do, in fact, apply simply as a result of a discharge to the waters of the state (Marrella v. Underpass Auto Parts, Oct. 2, 2013). In that case, none of the express RSR triggers existed. After hearing expert testimony, the court correctly determined there was no legal obligation to apply the RSRs to the property. Instead, the court applied the Significant Environmental Hazard (SEH) statute (§ 22a-6u) and ordered the defendant to determine if an exceedance of an SEH standard has occurred. If an exceedance exists, the defendant has an obligation under the SEH statute to “abate” it. The SEH statute was applied because it is designed specifically to determine if a significant risk exists due to site contamination and, if present, to require removal of that risk. The DEEP has appealed.
So the next time you are “required” to use the RSRs to remediate a property, remember that they apply only to very specific sites, and in many cases, there is no legally enforceable finish line. In those circumstances, an alternative standard can be used that may be more appropriate for the risks at issue. Defaulting automatically to the RSRs could be a costly and endless process. •