New Brownfield Law Draws National Attention
More than 250 people attended a special conference at the state Legislative Office Building on Jan. 25 to learn about brownfield liability reforms. The reforms are designed to incentivize private-sector investment in Connecticut brownfield properties.
Hosted by CBIA, the conference drew participants from across the development spectrum, including state and municipal officials. Potential investors from Alabama, Colorado, Florida, Illinois, Massachusetts, Missouri, New Jersey, New Mexico, New York, Ohio, Utah, and Vermont also joined the session remotely, via webcast.
[Above: DECD Deputy Commissioner Ronald Angelo discusses the impact of Connecticut’s brownfield liability reform on economic development. More photos ››]
The discussion centered on landmark legislation passed last year (Public Act 11-141)—specifically Section 17 of the Act, which fundamentally changes the liability scheme for privately and municipally owned brownfields. Connecticut has an expansive inventory of brownfields in every part of the state, and Section 17 removes some significant impediments to revitalizing those abandoned or underutilized sites.
A Tangled Mess
Prior to the enactment of Section 17, developers seeking to invest in brownfield redevelopment faced a gauntlet created by at least a dozen different statutes, none of which provided prospective purchasers with clear protection from long-term liability for on-site or off-site contamination that pre-existed their acquisition of a property.
Describing the legal situation before enactment of Section 17 as one where “no good deed goes unpunished,” Barry Trilling called the scheme a “tangled mess [that] discouraged private-sector investment in the remediation and redevelopment of brownfield properties.” Trilling is an attorney at Wiggin and Danazes in environmental law and commercial development.
Pamela Elkow, a partner at Robinson & Cole, noted that Section 17 changes the approach and attitude to remediation. “This is a 180 from where we have been.”
The Old Way: No Way Out
In his welcoming remarks at the program, Macky McCleary, deputy commissioner of Connecticut’s new Department of Energy and Environmental Protection (DEEP), characterized Connecticut’s cleanup programs as a “patchwork system” with a “variety of touch points…multiple and overlapping.” The system, he said, has been “difficult to navigate…confusing to get into and hard to get out of…and had a restraining effect on property transfer.”
The system we are moving toward, McCleary pledged, is more unified, with earlier and multiple exits, or “off-ramps,” and a shift toward self-implementation—that is, a program where cleanup obligations are clear, triggered by the occurrence or discovery of a release, and proportional to any potential risk to human health or the environment.
A New Day
Ron Angelo, deputy commissioner of the Department of Economic and Community Development (DECD), called the state’s new liability relief a “key to moving Connecticut forward,” saying it would revive urban centers, create livable communities, and encourage economic development.
“Today is a new day,” he observed. “2012 is going to be our watershed year, our breakout year.”
Rep. Jeffrey Berger (D-Waterbury), House Chairman of the Joint Committee on Commerce and a key leader on the issue of brownfields, called Connecticut’s brownfield liability reform “an issue about economic development and an issue about jobs,” noting that remediation and redevelopment of contaminated sites would revitalize businesses, spur capital investment, create jobs, and return abandoned properties to the tax rolls.
Just the Beginning
Lee Hoffman, an attorney specializing in environmental law at Pullman & Comley, believes Connecticut’s new brownfields system has the potential to produce significant, tangible benefits but added that because the system is new, it is likely to encounter a few bumps.
Ironing out those rough spots is what Hoffman, Trilling, Elkow, and their colleagues are urging the legislature to do in the 2012 General Assembly session.
Nancy Mendel, a partner at Winnick Ruben Hoffnung Peabody and Mendel, pointed out the need for statutory improvements to make the brownfields remediation process in Connecticut even more attractive to investors. Among those proposals being considered by advocates and the state’s legislative Brownfields Working Group are more consistent definitions of terms, clarity in language regarding deadlines, fee reductions and waivers, and a move to make the program self implementing.
Dave Hurley, a vice president at Fuss & O’Neill, and Beth Barton, a partner at Day Pitney who’s been involved in several major brownfield redevelopment projects in Connecticut, also commented on the importance of insuring that the state’s cleanup standard regulations reflect and are consistent with a clear, streamlined, and self-implementing approach to environmental cleanup. Those regulations are currently under review by the DEEP, and modifications are anticipated to be proposed in the next several weeks.
For more information on brownfields liability reform, contact CBIA’s Eric Brown at 860.244.1926 or firstname.lastname@example.org.
New and Innovative Brownfield Opportunities in Connecticut was made possible by CBIA’s Environmental Council , NAIOP, Day Pitney LLP, Pullman & Comley LLC, and Wiggin and Dana. Program sponsors also included Fuss & O’Neill, Winnick Ruben Hoffnung Peabody & Mendel LLC, City of New Haven Economic Development, REX, and Robinson & Cole LLP.
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