Environment: Businesses Fare Well
Several positive business-related bills environmental bills were considered at the Capitol this session and a few, particularly in the areas of permitting and cleanup, were passed. They now await Governor Malloy’s signature.
Two of the successful measures will have a positive impact on permitting.
HB 5344 furthers efforts by the Department of Energy and Environmental Protection (DEEP) to use its resources as efficiently as possible. It allows companies seeking to have their water discharges permitted under a DEEP general permit to hire a qualified professional who can certify to DEEP, without DEEP review, that they have taken the steps necessary to obtain coverage under the permit.
DEEP uses general permits to authorize discharges from broad categories of similar activities in order to avoid the time and expense of processing individual permits for each facility with these discharges.
The new law authorizes DEEP to audit these certifications and specifies a 10% audit rate goal.
This is a significant development in water permitting that, if properly implemented, could reduce the workload on DEEP staff, speed the permitting process, and protect Connecticut’s water resources.
A bill relating more to the legalities of permitting procedures is designed to protect the rights of certain permit applicants if DEEP rejects state certifications necessary to receive a federal permit.
The federal Clean Water Act requires applicants for certain federal licenses or permits to first obtain a certification from the DEEP that the proposed activity is consistent with the state’s water quality standards.
SB 351 requires DEEP, under certain conditions, to conduct a hearing at an applicant's request on an application for a water quality certification or a permit to conduct certain activities in tidal, coastal, or navigable waters below the high tide line.
If after the hearing and the commissioner’s final decision, the applicant disagrees with the decision, the bill clarifies the applicant’s ability to appeal the decision to the Superior Court.
Lawmakers again took positive action to advance Connecticut’s goal of becoming an excellent place for private-sector investment in cleaning up and redeveloping brownfields–historically contaminated, underutilized, or abandoned industrial properties.
Following up last year’s landmark liability reform legislation that established the Brownfield Remediation and Revitalization Program (BRRP), HB 5342 makes some important refinements to that and other brownfield programs.
The new law expands projects eligible for funding under the Targeted Brownfield Development Loan Program to include, if approved by DECD, affordable and workforce housing and other residential development.
This loan program is also now expanded to include municipalities and economic development agencies, and DECD has the authority to modify the terms of their loans to include extended repayment schedules or forgiveness of principal and/or interest.
Also, the new law will bolster the state’s Office of Brownfield Remediation and Development, allowing it to use funds available under existing brownfield grant and loan programs for staffing, marketing, and website development.
Under HB 5342, the DECD, DEEP, DOT, and OPM may develop pilot programs to facilitate the redevelopment of up to three “properties that will provide significant regional or statewide economic benefits in a manner that promotes smart growth.” It exempts these properties from the Connecticut Transfer Act under section 6 of the bill provided they are “investigated and remediated under the state’s voluntary cleanup program.”
The bill also provides “expedited environmental review” through a DECD report to be submitted to DEEP and OPM that will be the subject of public comment. OPM will make a final determination on the sufficiency of the review.
Regarding last year’s BRRP liability reform law, this bill:
- Gives municipalities the ability to nominate properties for the program even when there is no eligible purchaser yet identified
- Allows properties currently being investigated or remediated under the state's Property Transfer Act to apply to the program
- Gives the DEEP commissioner authority to provide, at his discretion, latitude regarding various timeframes existing under the current law .
· Provides greater flexibility for the timing of the payment required to participate in the program, and cleanup timelines are now based on the date of the first payment
Another bill that makes changes to the Connecticut Transfer Act, HB 5073, adds several exemptions, including:
- The conversion of a general or limited partnership to a limited liability company
- Properties in the BRRP and Abandoned Brownfield Cleanup Programs, including all subsequent transfers of those properties
- Any transfer of title from a bankruptcy court or a municipality to a nonprofit organization
Underground Storage Tanks
Federal requirements for the funding of cleanups associated with underground storage tanks were a hot item at the Capitol this year.
The Environmental Protection Agency warned the state that if lawmakers failed to take action this session to fix significant financial problems with its Underground Storage Tank Cleanup Fund (UST), then it would revoke its approval of the Fund.
The UST is a cost-effective tool for businesses to comply with EPA’s financial responsibility rules for owners of these tanks. The rules require tank owners to set aside funds to clean up their sites in the event of a tank failure.
Currently, about $18 million in cleanup claims have been approved by the Fund’s Board but have not been paid, and another $80 million in claims have been submitted and await the board’s review.
While SB 375 proposed $8 million in bonding to begin to address the issue, the regulated community–especially gasoline stations that face significant consequences if the Fund is not fixed—considered it insufficient.
SB 375 was rejected, but this year’s bonding bill, passed at the very end of the session, includes authorization for up to $36 million to pay off some of the claims.
DEEP, however, does not view this as an acceptable solution and notified the EPA of its dissatisfaction. DEEP is requesting that EPA not take any action until the state has the opportunity to pass legislation in the upcoming special session.
Another DEEP bill strongly opposed by the regulated community in its original form was HB 5343. Under last year’s brownfield legislation (PA 11-141), DEEP must conduct a comprehensive study of its cleanup rules related to brownfields and prepare a report on recommendations for streamlining those rules.
Last year, DEEP comprehensively examined its cleanup laws, regulations and policies with input from a wide variety of stakeholders. A report was submitted last December, but it was evident that the agency would need more time to achieve the level of comprehensive change they are seeking.
The regulated community thought that HB 5343 would simply extend the deadlines established in the 2011 legislation. Instead, DEEP proposed expanding the mission of the comprehensive review and also set the stage for a massively burdensome statewide reporting program for current, future, and historic spills.
Fortunately, the spill-reporting section of the bill was removed, leaving the focus on the deadline extension. Spill reporting, however, will be a key issue for the business community through the remainder of this year and next legislative session.
Several negative bills were defeated this year. A bill that started out as a very positive measure to revise the cumbersome and often-abused Environmental Protection Act (SB 343) became so distorted through negotiations with environmental advocates that businesses recommended the bill die and the issue be revisited next year.
Other failed measures included several that would have negatively impacted Connecticut’s competitiveness.
Proposals seeking new restrictions and labeling requirements for chemicals and certain foods, along with a bill requiring mattress retailers to charge a fee and assume other responsibilities related to the recycling of mattresses, were wisely rejected by the legislature.
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