Connecticut took a major step forward during this year’s difficult legislative session when it passed legislation that will help spur economic development, remediate brownfields and restore our position as one of the leaders in brownfield redevelopment — at no direct taxpayers’ expense.
Public Act 11-141, An Act Concerning Brownfield Remediation and Development as an Economic Driver, which was supported and signed by Governor Malloy, creates a new program to facilitate the revitalization of brownfields. It also fine tunes and expands the scope of existing programs, resulting in greater clarity and incentives for brownfield developers, municipalities and other stakeholders.
Brownfield revitalization is critical to Connecticut. The state has thousands of these former manufacturing sites, now abandoned or underutilized and posing potential threats to human health, the environment and the viability of many of our municipalities. Every city and town in Connecticut has at least one brownfield, and they are a major impediment to urban redevelopment and sustainable growth in the state.
Looked at from a different perspective, however, brownfield sites offer enormous opportunities. When a brownfield is developed, it often means that a “greenfield” or open space is spared and infrastructure development leading to sprawl can be avoided. When a brownfield is returned to sustained productive use, it often means that properties are added to the grand list, jobs are created, existing infrastructure is utilized, neighborhoods are revitalized and blight is reduced, if not eliminated.
The centerpiece of the new legislation is the creation of a new Brownfield Remediation and Revitalization Program (Section 17 of the act). The program limits the scope of investigation and remediation to the eligible site; expedites the timetable for investigation and remediation of sites and audits by the Connecticut Department of Energy and Environmental Protection (DEEP); and limits program participants’ liability to the state and third parties.
Up to 32 properties will be accepted each year into the program. Admission is based on a detailed list of factors designed to ensure that there is geographic distribution and diversity of projects. Only applicants that did not create or maintain the pollution or that are not otherwise responsible for it are eligible. Inclusion in the program will not affect eligibility for other brownfield grant and loan programs.
Upon acceptance into the program, the applicant must investigate and remediate under the supervision of a licensed environmental professional. The duty to investigate and remediate is explicitly limited to the boundaries of the property. DEEP is under a short audit timeline.
Participants receive immunity from liability (except for certain PCB and UST requirements) to the state or any third party for costs relating to releases from the brownfield addressed on-site and historical off-site impacts. These liability protections can be extended to eligible subsequent owners for a $10,000.00 fee.
Although Section 17 has received most of the attention, Section 9 may also have a significant impact on brownfield revitalization, especially for municipalities.
Section 9 expands eligibility and offers liability immunity to participants in the program. Participants are relieved of liability to the state or other third parties for the release of any pollutants at or from the property prior to the participant taking title to the property. In addition, DEEP will provide that participant a covenant not to sue. Section 9 also exempts an eligible participant from filing as an establishment under the Transfer Act.
The act also contains several common sense provisions that should facilitate the remediation of properties under other programs. These include:
• Limiting the responsibility of a certifying party to investigate or remediate under the Transfer Act to releases which occurred prior to the completion of a Phase II investigation;
• Allowing DEEP to reclassify surface and groundwater;
• Exempting governmental agencies, private entities and nonprofit organizations from paying certain DEEP fees;
• Exempting municipalities and the bankruptcy court from the Transfer Act when transferring properties to nonprofits;
• Allowing DEEP the ability to waive some of the requirements of environmental land use restrictions and release certain parties from their requirements;
• Enhancing and beefing up existing brownfield programs.
With a full array of brownfield remediation and redevelopment programs now in place, combined with the authorization of $25 million for brownfield remediation in each of the next two fiscal years, Connecticut sends a strong message to the business and development community that brownfield revitalization is a priority.
Careful planning and consideration of the many programs and incentives should reap substantial benefits for brownfield developers and for the state as a whole. It is a win-win opportunity, increasingly rare in these tough economic times. Connecticut’s leaders should be commended for recognizing the enormous benefits brownfield revitalization will have on the economic well-being of the state.
Gary B. O’Connor serves as co-chairman of Connecticut’s Brownfields Working Group. He is a partner in the Hartford and Waterbury offices of Pullman & Comley LLC. Jean Perry Phillips is an attorney practicing in the Environmental Law Department of Pullman & Comley LLC, based in Hartford.
