Environment: Regulatory Changes, Reforms

As in previous years, the 2013 session had its share of environmental bills that appeared to ignore Connecticut’s economic challenges.

Fortunately, most of these bills failed or were modified to reflect some concern for their potential economic impacts. Better were some bills from the legislature’s Commerce and Planning and Development committees that should help improve the state’s regulatory climate.

Reporting and Mitigation of High-Risk Environmental Contamination

The Department of Energy and Environmental Protection (DEEP) took a first significant step toward transforming its contamination discovery and cleanup program.

DEEP’s aim is to move away from a system largely triggered by changes in ownership of contaminated property to one more focused on the level of risk the contamination poses to the public and the environment.

Specifically, HB 6651 first requires DEEP to hire an independent and nationally recognized expert in the field of risk assessment to evaluate the ecological and human health risk assessment and risk management practices used by other states, the U.S. Environmental Protection Agency, and those published by the National Academy of Sciences.

Next, the DEEP commissioner will recommend statutory and regulatory changes to Connecticut’s risk evaluation processes.

The evaluation process and recommendations are designed to ensure confidence that DEEP’s future risk-based reporting, mitigation and cleanup programs incorporate well-founded, peer-reviewed and tested science on risk assessment.

When regulatory and statutory changes are in place, Connecticut will likely have a very new approach to environmental reporting and cleanup of contaminated properties.

In the meantime, HB 6651 moves forward with incorporating a more risk-based approach into DEEP’s existing program for reporting and addressing significant environmental hazards. 

Specifically, DEEP felt that the risk-based science with respect to so-called “heavy metals” in soils and certain types of contaminants in ground water are scientifically understood to a degree that it warrants statutory implementation of a risk-based program for reasonably preventing exposure to these contaminants.

HB 6651 specifies (in Sections 31 and 32) under what conditions property owners must report the discovery of these high-risk situations and how the owners need to reasonably prevent the public’s exposure to them.

However, this does not go into effect until 2015 and may well be revised before that time, following the completion of the evaluation mentioned above.

Regulatory Reforms

Lawmakers passed two bills to improve Connecticut’s regulatory environment.

Businesses have long been concerned about state agencies compelling them to take action or refrain from it based on certain policy statements, guidance documents, or just because “that’s the way we’ve always done it.” 

SB 1006responds to that by requiring any agency rendering a final decision on any contested case–such as a permitting or licensing proceedings–to identify in its decision the specific legislative or regulatory provision the decision is based on.

And, whenever any state agency takes any of a wide variety of actions affecting a business’s ability to operate, the agency must now provide, upon request, the specific statutory or regulatory provision (or provision of an individual or general permit), that authorizes the agency’s actions.

Another reform (SB 814, PA 13-186) should cut down on frivolous interventions in permit proceedings. It modifies the Connecticut Environmental Protection Act (CEPA) by barring any person, business, or other entity—anywhere in the world—from intervening in a state or local environmental permit proceeding unless they can provide specific factual allegations regarding environmental harm that’s reasonably likely to occur.

Disappointingly, another bipartisan reform failed. SB 759 required DEEP and two other agencies to develop procedures for waiving penalties for first-time, non-criminal violations corrected within 90 days.

First passed by the Commerce Committee and later killed by the Environment Committee, the proposal ultimately gained unanimous Senate approval as an amendment to another bill, SB 1019.

However, the House stripped the language out of SB 1019 when that bill came before them for consideration.

Finally, HB 6536, which would have created new and potentially substantial fees on businesses that operate under general permits issued by DEEP,  died on the final night of the session. 

For more information, contact CBIA’s Eric Brown at 860.244.1926 or eric.brown@cbia.com.