Wednesday, June 10, 2009

An Act Concerning Brownfields Development Projects

Passed 36 to 0 in the Senate, 151 to 0 in the House in the January to June 2009 Session of the Connecticut General Assembly

The legislation makes the use of old mills on brownfield properties exempt from a floodplain requirement that applies to other state agency actions. (The language is identical to An Act Concerning Floodplain Management and Mill Properties)

It exempts properties taken in eminent domain from the transfer act so long as the party acquiring the property didn’t create or contribute to contaminating the site, the party participates in the voluntary remediation program, and complies with the voluntary program’s schedules and approvals. It extends the transfer act exemption to municipal economic development agencies and nonprofit economic development corporations.

The legislation reduces the legal obligations of people who acquire title for remediated brownfield properties from municipalities/ municipal economic development agencies/and nonprofit economic development corporations so long as they were not responsible for the pollution and are not directly or indirectly related to the person who is responsible for the contamination.

When properties are sold, the municipality/economic development agency/nonprofit economic development corporation retains 20 percent of the proceeds from the sale. They must deploy the proceeds for economic development capital improvements. Eighty percent of the proceeds must be transferred to the Office of Brownfield Remediation and Development to fuel future remediations.

The legislation conveys “innocent party status” to municipalities/municipal economic development agencies/nonprofit economic development corporations/nonstock LLCs formed by municipalities that receive funding from the Office of Brownfield Remediation and Development. This frees them of liability for pollution they did not cause. If the municipal entities listed above exacerbated contamination on the site, their liability is limited to the pollution directly attributable to their negligence or recklessness.

Municipalities get permission to enter and investigate sites if the property owner can’t be located, the site has a tax lien, the site is the target of eminent domain, or the municipality’s legislative body determines the property is underutilized. The municipality must give 45 day’s notice to the owner before entering the property. The municipality isn’t liable for any contamination it finds on the sites so long as it doesn’t cause or contribute to the pollution and it reports environmental hazards as required. If the municipality’s agent exacerbates the pollution, the city or town will only be liable for the contamination contributed by its agent’s recklessness and negligence.

Property owners may object to municipal meddling within 30 days of receiving notice from the city or town. They can only object if they are in the process of completing a comprehensive environmental assessment and have paid delinquent taxes.

The legislation establishes an abandoned brownfield cleanup program. Eligible properties must be contaminated properties that have been significantly underused since October 1, 1999. Eligible applicants must be willing to acquire title, remediate and redevelop the sites. The sites must have a regional or municipal economic development benefit. The applicant must not have created anything that could reasonably be expected to pollute the water of the state. The applicant isn’t under an order to clean up pollution on the property. The person responsible for the pollution is indeterminable or not able to clean up the property; and the Department of Economic and Community Development Commissioner may establish additional criteria at his/her discretion. The awardee must follow the guidelines for investigation and remediation established in the voluntary remediation program and must prevent any further pollution migration. People who have title to abandoned brownfield properties under the program are released from liability for investigating or remediating pollution that may have emanated from the property before they take title.

The legislation says that unless the Commissioner of the Department of Environmental Protection says otherwise in writing, investigation and remediation will follow a prescribed schedule where investigation will begin within two years, remediation will be initiated within three years, and there is verification of completion not later than eight years.

Licensed environmental professionals may submit plans to DEP on behalf of site owners or municipalities.

The legislation gives preference for green remediation technologies where possible.

Connecticut has thousands of underutilized brownfield sites. Many of the sites are in ideal smart growth redevelopment areas. Developers and municipalities have long complained that the state’s legal and bureaucratic constraints coupled with a lack of funding keep the sites dirty and dilapidated. Though this legislation provides no new capital, it does make significant attempts to shake loose some of the other constraints.

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