On Dec. 21, the Connecticut Department of Energy and Environmental Protection released a proposal to “transform” state environmental remediation programs.
While setting ambitious goals for streamlined, self-implementing cleanup standards, DEEP’s proposal offers no details of such standards. DEEP would also expand remediation requirements to many properties where owners today can opt to defer cleaning up historical releases of hazardous substances.
DEEP’s “Report to the Governor and the Joint Standing Committees on Environment and Commerce on the Comprehensive Evaluation of the Connecticut Cleanup Program and Proposal for Transformation” was mandated last year by Public Act 11-141, which directed DEEP to study the cleanup process and present recommendations to make it more streamlined and efficient. The resulting report articulates a “vision” and a “conceptual design for a transformed cleanup program.”
The “vision” lists 10 general program attributes, including simplicity, clarity, certainty, flexibility to set remedial endpoints commensurate with risk, and focus on highest public health and environmental risks. Significantly, one core attribute is that “robust checks and balances” must accompany self-implementing cleanup options.
The “conceptual design” takes only preliminary steps to translate this vision into concrete policy. Using a series of graphics, the report sketches “What We Need To Change,” the current and future system of remediation triggers and completion criteria (program “entrances and exits”), and the “Future State” of the program.
The topic of “entrances and exits” is central. As the report explains, property owners currently may become obligated to remediate contaminated properties under any one of several statutes and regulations that set varying remediation requirements and cleanup “finish lines.” The Transfer Act in particular has been viewed as a disincentive to transactions that bring properties “into the program” with attendant cost, delay and uncertainty.
DEEP’s conceptual design cleaves this Gordian knot by proposing a “unified entrance” in which the trigger is simply to “cause, know or discover” a release. Though announced without fanfare, this proposal would dramatically alter current law: Connecticut property owners today have no general obligation to report historical contamination that does not constitute a significant environmental hazard.
This aspect of the “conceptual design” seems to hold the potential to make a bad situation worse. DEEP staff resource constraints already contribute to delay and uncertainty. Flooding a clogged system with additional sites does not seem an obvious recipe for improvement.
Perhaps for this reason, the report outlines a complementary initiative to streamline the remediation process, primarily through “self-implementing” and “risk based” cleanups. Conceptually, the proposed process would have the following “multi-level exit classes”:
Class A: Soil and groundwater remediated; unrestricted use.
Class B: Soil and groundwater remediated; use restricted; long-term maintenance.
Class C: Soil remediated; groundwater remedy operating; long-term maintenance.
Class B and C cleanups would in turn include two “types” — Type I using default standards and approaches; Type II using customized risk-based or site-specific approaches.
While this “class” and “type” nomenclature is new, these “exits” resemble outcomes attainable under the current remediation standard regulations. “Class A” corresponds to RSR remediation to residential standards, “Class B” to remediation with an environmental land use restriction to support industrial/commercial standards, and perhaps an engineered control variance for a remedy employing a cap or cover. “Class C” corresponds to RSR remediation scenarios using an ELUR and/or engineered control variance; it also parallels the Transfer Act Form IV profile of “all but groundwater” remediation. And while the report cites the incremental recovery of property value as a unique benefit of remediation to the increasingly stringent exits within the proposed multi-level system, comparable benefits are at least theoretically available under the corresponding RSR “exits.”
So how does DEEP’s new “conceptual design” achieve these outcomes without the uncertainty, unpredictability, delay and cost of existing programs?
Here, unfortunately, the report gives the proverbial can a mighty kick down the road: “changes to the [RSRs] will be needed to provide for increased flexibility in cleanup approach, such as allowing self-implementing risk-based cleanups,” but “the specifics of the new cleanup program will ultimately need to be further discussed.”
The lack of such specifics is a conspicuous omission. Recent efforts to revise the RSRs have been singularly unsuccessful. The abstract goal of flexible, self-implementing standards is ambitious and may prove equally difficult to translate into concrete terms.
The report moreover reaffirms policy priorities that will be challenging to reconcile with the concept of a system that functions without administrative involvement.
The report leaves no ambiguity about the importance of these priorities. While aiming for “increased certainty and predictability,” a new program must also ensure “adequate oversight for the protection of public health and the environment.” “Self-implementing options” must be balanced with “robust checks and balances.” DEEP will need to “operate a robust education and auditing program” and “maintain enforcement authorities” where parties fail to address high-risk situations. And the new program’s “key features” include “increased audit and enforcement capabilities by DEEP.”
Whatever their merits, these priorities run counter to the notion of a self-implementing system. A “robust auditing program” has already proven to be a limiting factor in the Licensed Environmental Professional program — which on paper should operate largely independent of DEEP staff supervision. There is similar potential in the concept, deeply rooted in DEEP’s thinking about site remediation, that the nature and distribution of hazardous substances in any release area must be “fully characterized” by sampling and analysis before remediation can proceed. Because “full characterization” is a matter of professional judgment, any remediation process dependent on it will be vulnerable to second-guessing — with attendant potential for uncertainty, expense and delay — before any “self-implementing” cleanup options can even be considered. These are only examples of the thorny implementation issues the report defers to another day.
In sum, while the report reflects valuable collaborative thinking about Connecticut’s current cleanup regime, the hardest decisions needed to turn DEEP’s “vision” and “conceptual” design into concrete proposals have yet to be made.
For owners and developers of brownfield and other contaminated properties, “transformation” of Connecticut’s remediation programs remains an uncertain and distant prospect.
Christopher P. McCormack is a partner in the Environmental Department of Pullman & Comley LLC.
