DEEP Groundwater Ruling Raises Business Concerns

A recent declaratory ruling by the state Department of Energy and Environmental Protection could dramatically increase cleanup costs and discourage brownfields development.
Businesses are also concerned DEEP’s June 27 ruling may set standards that far exceed those of neighboring states, while jeopardizing Connecticut’s Licensed Environmental Professionals program.

The 42-page declaratory ruling was the focus of a July 21 meeting attended by about 45 members of CBIA’s E2: Energy & Environment Council in Hartford.
Council members shared their concerns that DEEP is reinterpreting pollution cleanup standards to levels far more restrictive than current regulations.
E2 members will review the ruling with DEEP officials to assess the potential impact on economic development and brownfield cleanups.

‘Creates Uncertainty’

The ruling provides new interpretations of the state’s Remediation Standard Regulations and rules that govern LEPs.
DEEP previously established groundwater cleanup criteria for 88 compounds—those most frequently detected, that pose the greatest risk, and that drive cleanups.
But there are literally thousands of other compounds for which the regulations don’t specify criteria.
DEEP’s ruling indicates that for compounds where no numeric cleanup criteria is specified in the regulations, businesses must now cleanup to background conditions or a different standard which the property owner has the burden of scientifically establishing—a lengthy and expensive process.
“At a minimum, the ruling creates uncertainty,” one E2 member said. “Some would say it creates more than uncertainty.”
“The declaratory ruling is inconsistent with what they’ve been doing,” said a licensed environmental professional who addressed the council.
“The ruling makes people think, ‘Did I misunderstand everything for the last 20 years?'”

New Standards

Current remediation regulations distinguish between relatively pristine “GA” sites, which must be cleaned to the most conservative standards, and “GB” sites, which have a long history of industrial or commercial activity and environmental use.
GB sites include brownfields, for which the regulations provide more flexible cleanup options.
Before the June 27 ruling, there were no groundwater remediation standards for GB sites for what are known as extractable total petroleum hydrocarbons, or ETPHs.
The cleanup option most often used for protecting the environment and human health, with DEEP approval, was to leave petroleum-impacted soil in place beneath buildings and parking lots, and place a land-use restriction on the property to ensure no exposure to the contamination.

“DEEP's new interpretation is suddenly now you have to meet very stringent criteria in soils and ground water in these GB areas," the environmental professional told the council.
"Where you had no criteria yesterday, today you have to meet detection limit or near detection limit down in the parts per million.
"But now you have these areas beneath buildings, below the water table, where  you've got to get to a point where you're going to meet 0.1 to 0.7 (parts per million) of ETPH.
"You're not going to get to those levels in any reasonable time frame."

Lost Flexibility

Environmental safety systems are in place for some buildings where it was deemed necessary.
But under the new interpretation, it could cost $200,000 to $300,000 to remediate a building site to meet the new standards.
"A lot of flexibility got yanked out of the regulations," said the LEP, who works for a company based in New London County.
E2 members say the new interpretation could discourage remediation and reuse of brownfields.
They fear it will add a significant barrier to cleaning brownfields because cleanup criteria for petroleum-related compounds will be lowered to a point where they'll be difficult to meet.
GA sites could also become harder to clean under reinterpreted standards.

'Game Changer'

"Anyone who knows anything about petroleum knows that it naturally degrades in the environment," the LEP said.
E2 members said the new interpretation could be a game changer for licensed environmental professionals because of its potential to increase remediation costs and uncertainty about legal liabilities.
Other concerns are that Connecticut standards are 20 to 200 times more stringent than those in neighboring Massachusetts.
Council members are hoping these concerns can be addressed through discussions with DEEP about the ruling, and the impact on economic development, brownfield cleanups, and the LEP program.
In the meantime, the council is exploring regulatory, judicial, and legislative options.

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For more information, contact CBIA's Eric Brown (860.244.1926) | @CBIAericb