After many meetings with a wide variety of interested parties, the Department of Energy and Environmental Protection (DEEP) has proposed an amendment to SB 1082 that takes initial steps toward transforming DEEP’s cleanup programs to a risk-based system. 

DEEP's proposal still includes measures from the original bill to help clean up more brownfields—such as by providing additional liability relief for municipalities and offering improved options for appropriately remediating these sites based on their future use.

The most controversial parts of the bill since it was first unveiled in February--Sections 2 and 3--have sought to modify the state’s existing program for dealing with exposure to significant environmental risks in drinking water wells, soils, surface waters and vapors that could migrate into buildings from underground contamination.

Working Draft Revisions

After months of conversation and testimony, the agency on May 10 released a “working draft” revised amendment.  This draft has been the subject of many meetings since its release, including several over the past few days.  Based on feedback from these meetings, DEEP has released what is characterized as a final effort at legislative action this year. 

The revised proposal is designed to ensure that contamination which may present a serious risk to the public is expeditiously addressed in a way that prevents public exposure to these risks.  Mitigation measures may include fencing off soils, appropriate filters for contaminated drinking water wells, or vapor monitoring of occupied buildings. 

The new proposal also clarifies that while those responsible for addressing the potential exposures may choose to do so by removing the source of potential risk or fully remediate the contamination, such measures would not be required under this law.  Any obligation to go further than limiting exposure to potential serious risks would be defined through the next steps in DEEP’s cleanup transformation process that is underway and will include new regulations and further legislative changes next year.

The proposed effective date for Sections 2 and 3 is 2015 – thereby allowing an opportunity for further refinements to this piece of the transformation effort over the next two years.

CBIA members and other interested stakeholders including municipalities and economic development experts are reviewing the latest proposal.

Changes in the final draft include:

  • Clarification that required actions under this program are limited to mitigation of exposure to the identified potential risk
  • Triggers for reporting contamination in industrial/commercial soils remain at 30 times the state standards within two feet of the surfaces, except as below:
  • The geographic applicability of the reporting requirements for potential sensitive receptors has been limited to where the risk of exposure is within 300 feet of sensitive areas such as schools, daycare facilities, residences and public recreation areas, and only applies to heavy metals and PCBs at 15X applicable state criteria if not otherwise paved or fenced off.
  • DEEP must issue a written approval that appropriate mitigation measures are planned or have been taken (a so-called “make safe” certificate)
  • Creation of a fund to help businesses take the required actions to mitigate exposure – for example, the cost of fencing an area (this new fund would be created through a different brownfields bill (HB 6174).

There are less than two weeks left in the legislative session and many bills left to be considered by the House and Senate.  CBIA members and other stakeholders need to consider the latest changes and convey their opinions as quickly as possible.

For more information SB 1082 and other aspects of DEEP’s cleanup transformation program, contact CBIA’s Eric Brown at eric.brown@cbia.com or 860-244-1926.