Sec. 32-761. (Formerly Sec. 32-9cc). Office of Brownfield Remediation and Development.
Sec. 32-762. Brownfield remediation and development account.
Sec. 32-763. (Formerly Sec. 32-9kk). Remedial action and redevelopment municipal grant program.
Sec. 32-765. Targeted brownfield development loan program.
Sec. 32-766. Terms and conditions of financial assistance.
Sec. 32-767. Reimbursement for costs and expenses of assessment or remediation.
Sec. 32-768. (Formerly Sec. 32-9ll). Abandoned brownfield cleanup program.
Sec. 32-769. (Formerly Sec. 32-9mm). Brownfield remediation and revitalization program. Eligibility.
Sec. 32-772. Board of directors.
Sec. 32-773. Purposes. Powers.
Sec. 32-775. Obligations re acquisition, ownership and transfer of real property.
Sec. 32-776. 7/7 Program. Regulations.
Sec. 32-760. Definitions. As used in this chapter:
(1) “Bona fide prospective purchaser” means a person who acquires ownership of a property after July 1, 2011, and establishes by a preponderance of the evidence that:
(A) All disposal of regulated substances at the property occurred before such person acquired the property;
(B) Such person made all appropriate inquiries, as set forth in 40 CFR Part 312, into the previous ownership and uses of the property in accordance with generally accepted good commercial and customary standards and practices, including, but not limited to, the standards and practices set forth in the ASTM Standard Practice for Environmental Site Assessments, Phase I Environmental Site Assessment Process, in effect on the date such person acquired the property. In the case of property in residential or other similar use at the time of purchase by a nongovernmental or noncommercial entity, a property inspection and a title search that reveal no basis for further investigation shall be considered to satisfy the requirements of this subparagraph;
(C) Such person provides all legally required notices with respect to the discovery or release of any regulated substances at the property;
(D) Such person exercises appropriate care with respect to regulated substances found at the property by taking reasonable steps to (i) stop any continuing release, (ii) prevent any threatened future release, and (iii) prevent or limit human, environmental or natural resource exposure to any previously released regulated substance;
(E) Such person provides full cooperation, assistance and access to persons authorized to conduct response actions or natural resource restoration at the property, including, but not limited to, the cooperation and access necessary for the installation, integrity, operation and maintenance of any complete or partial response actions or natural resource restoration at the property;
(F) Such person complies with any land use restrictions established or relied on in connection with the response action at the property and does not impede the effectiveness or integrity of any institutional control employed at the property in connection with a response action; and
(G) Such person complies with any request for information from the Commissioner of Energy and Environmental Protection;
(2) “Brownfield” means any abandoned or underutilized site where redevelopment, reuse or expansion has not occurred due to the presence or potential presence of pollution in the buildings, soil or groundwater that requires investigation or remediation before or in conjunction with the redevelopment, reuse or expansion of the property;
(3) “Commissioner” means the Commissioner of Economic and Community Development;
(4) “Contiguous property owner” means a person who owns real property contiguous to or otherwise similarly situated with respect to, and that is or may be contaminated by a release or threatened release of a regulated substance from, real property that is not owned by that person, provided:
(A) With respect to the property owned by such person, such person takes reasonable steps to (i) stop any continuing release of any regulated substance released on or from the property, (ii) prevent any threatened future release of any regulated substance released on or from the property, and (iii) prevent or limit human, environmental or natural resource exposure to any regulated substance released on or from the property;
(B) Such person provides full cooperation, assistance and access to persons authorized to conduct response actions or natural resource restoration at the property from which there has been a release or threatened release, including, but not limited to, the cooperation and access necessary for the installation, integrity, operation and maintenance of any complete or partial response action or natural resource restoration at the property;
(C) Such person complies with any land use restrictions established or relied on in connection with the response action at the property and does not impede the effectiveness or integrity of any institutional control employed in connection with a response action;
(D) Such person complies with any request for information from the Commissioner of Energy and Environmental Protection; and
(E) Such person provides all legally required notices with respect to the discovery or release of any hazardous substances at the property;
(5) “Department” means the Department of Economic and Community Development;
(6) “Economic development agency” means (A) a municipal economic development agency or entity created or operating under chapter 130 or 132; (B) a nonprofit economic development corporation formed to promote the common good, general welfare and economic development of a municipality or a region that is funded, either directly or through in-kind services, in part by one or more municipalities; (C) a nonstock corporation or limited liability company established or controlled by a municipality, municipal economic development agency or an entity created or operating under chapter 130 or 132; or (D) an agency, as defined in section 32-327;
(7) “Eligible costs” means the costs associated with the investigation, assessment, remediation and development of a brownfield, including, but not limited to, (A) soil, groundwater and infrastructure investigation, (B) assessment, (C) remediation, (D) abatement, (E) hazardous materials or waste disposal, (F) long-term groundwater or natural attenuation monitoring, (G) (i) environmental land use restrictions, (ii) activity and use limitations, or (iii) other forms of institutional control, (H) attorneys' fees, (I) planning, engineering and environmental consulting, and (J) building and structural issues, including demolition, asbestos abatement, polychlorinated biphenyls removal, contaminated wood or paint removal, and other infrastructure remedial activities;
(8) “Financial assistance” means grants, loans or loan guarantees, or any combination thereof;
(9) “Innocent landowner” has the same meaning as provided in section 22a-452d;
(10) “Interim verification” has the same meaning as provided in section 22a-134;
(11) “Manufacturing facility” means a business establishment classified under sector 31, 32 or 33 of the North American Industrial Classification System;
(12) “Municipality” means a town, city, consolidated town and city or consolidated town and borough. For purposes of sections 32-771 to 32-775, inclusive, “municipality” includes a district, as defined in section 7-324, a metropolitan area, as defined in section 7-333, and any political subdivision of the state that has the power to levy taxes and to issue bonds, notes or other obligations;
(13) “PCB regulations” means the polychlorinated biphenyls manufacturing, processing, distribution in commerce and use prohibitions found at 40 CFR Part 761;
(14) “Person” means any individual, firm, partnership, association, syndicate, company, trust, corporation, nonstock corporation, limited liability company, municipality, economic development agency, agency or political or administrative subdivision of the state or any other legal entity;
(15) “Real property” means land, buildings and other structures and improvements thereto, subterranean or subsurface rights, any and all easements, air rights and franchises of any kind or nature;
(16) “Regulated substance” has the same meaning as provided in section 22a-134g;
(17) “Release” means any discharge, spillage, uncontrolled loss, seepage, filtration, leakage, injection, escape, dumping, pumping, pouring, emitting, emptying or disposal of a substance;
(18) “Remediation standards” has the same meaning as provided in section 22a-134;
(19) “State” means the state of Connecticut;
(20) “UST regulations” means the regulations adopted pursuant to subsection (d) of section 22a-449;
(21) “Verification” has the same meaning as provided in section 22a-134; and
(22) “Connecticut brownfield land bank” means a Connecticut nonstock corporation, certified by the Commissioner of Economic and Community Development pursuant to section 32-771, established for the purposes of (A) acquiring, retaining, remediating and selling brownfields in the state for the benefit of municipalities, (B) educating government officials, community leaders, economic development agencies and nonprofit organizations on best practices for redeveloping brownfields, and (C) engaging in all other activities in accordance with sections 32-771 to 32-775, inclusive.
(P.A. 13-308, S. 1; P.A. 15-193, S. 5; P.A. 17-214, S. 1.)
History: P.A. 13-308 effective July 1, 2013; P.A. 15-193 amended Subdiv. (1)(B) by replacing “E1527-05, as may be amended from time to time” with “in effect on the date such person acquired the property”, effective July 1, 2015; P.A. 17-214 replaced reference to Secs. 32-761 to 32-769 with reference to chapter, amended Subdiv. (12) by redefining “municipality”, amended Subdiv. (14) by redefining “person” to add “nonstock corporation”, added Subdiv. (22) defining “Connecticut brownfield land bank”, and made technical changes, effective July 1, 2017.
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Sec. 32-761. (Formerly Sec. 32-9cc). Office of Brownfield Remediation and Development. (a) There is established, within the Department of Economic and Community Development, an Office of Brownfield Remediation and Development. Such office shall be managed by a director, appointed by the commissioner in accordance with section 5-198. In addition to the other powers, duties and responsibilities provided for in this chapter, the office shall promote and encourage the remediation and development of brownfields in the state. The Office of Brownfield Remediation and Development shall coordinate and cooperate with state and local agencies and individuals within the state on brownfield redevelopment initiatives, including program development and administration, community outreach, regional coordination and seeking federal funding opportunities.
(b) The office shall:
(1) Develop procedures and policies for streamlining the process for brownfield remediation and development;
(2) Identify existing and potential sources of funding for brownfield remediation and develop procedures for expediting the application for and release of such funds;
(3) Establish an office and maintain an informational Internet web site to provide assistance and information concerning the state's technical assistance, funding, regulatory and permitting programs for brownfield remediation and development;
(4) Provide a single point of contact for financial and technical assistance from the state and quasi-public agencies with regard to brownfield remediation and development;
(5) Develop a common application to be used by all state and quasi-public entities providing financial assistance for brownfield assessment, remediation and development;
(6) Identify and prioritize state-wide brownfield development opportunities, including, but not limited to, in consultation with the State Historic Preservation Office, municipal officials and regional planning organizations, the identification of abandoned and underutilized mills that are important assets to the municipalities or the regions in which such mills are located;
(7) Develop and administer a communication and outreach program to educate municipalities, economic development agencies, property owners, potential property owners and other organizations and individuals with regard to state programs for brownfield remediation and redevelopment;
(8) At the office's discretion, enter into cooperative agreements with economic development agencies and may, where appropriate, make grants to such organizations for the purpose of designing, implementing and supervising brownfield assessment and cleanups, or making further subgrants, provided each subgrant is in compliance with the terms and conditions of the original grant; and
(9) Create and maintain a web site independent of the department's other web sites that is specifically dedicated to marketing and promoting state-owned brownfields, and develop and implement a marketing campaign for such brownfields and web site.
(c) The Department of Energy and Environmental Protection, Connecticut Innovations, Incorporated, the Office of Policy and Management and the Department of Public Health shall each designate one or more staff members to act as a liaison between their offices and the Office of Brownfield Remediation and Development. The Commissioners of Economic and Community Development, Energy and Environmental Protection and Public Health, the Secretary of the Office of Policy and Management and the chief executive officer of Connecticut Innovations, Incorporated shall enter into a memorandum of understanding concerning each entity's responsibilities with respect to the Office of Brownfield Remediation and Development. The Office of Brownfield Remediation and Development may recruit two volunteers from the private sector, including a person from the Connecticut chapter of the National Brownfield Association, with experience in different aspects of brownfield remediation and development. Said volunteers may assist the Office of Brownfield Remediation and Development in marketing the brownfield programs and redevelopment activities of the state.
(d) The Office of Brownfield Remediation and Development may call upon any other department, board, commission or other agency of the state to supply such reports, information and assistance as said office determines is appropriate to carry out its duties and responsibilities. Each officer or employee of such office, department, board, commission or other agency of the state is authorized and directed to cooperate with the Office of Brownfield Remediation and Development and to furnish such reports, information and assistance.
(P.A. 06-184, S. 1, 8, 13; P.A. 07-233, S. 1; P.A. 11-80, S. 87; 11-140, S. 10; 11-141, S. 1; Oct. Sp. Sess. P.A. 11-1, S. 26; P.A. 12-183, S. 13; June 12 Sp. Sess. P.A. 12-1, S. 152; P.A. 13-123, S. 9; 13-308, S. 2.)
History: P.A. 06-184 effective July 1, 2006; P.A. 07-233 amended Subsec. (a) to establish office within Department of Economic and Community Development, amended Subsec. (b)(1) to add brownfield development, amended Subsec. (b)(2) to change “identify existing and create new” to “identify existing and potential” and delete limitation that sources of funding be available to municipalities or economic development agencies, amended Subsec. (b)(3) to require establishment of office to provide assistance and information, added new Subsec. (b)(4) and (5), redesignated existing Subsec. (b)(4) as Subsec. (b)(6), deleted former Subsec. (b)(5), redesignated existing Subsec. (b)(6) as Subsec. (b)(7) and amended same to provide for communication and outreach program, amended Subsec. (c) to make pilot program subject to the availability of funds, to change number of municipalities from 4 to 5, to change population requirement for the smallest participating municipality from more than 25,000 but less than 50,000 to less than 50,000, to add a municipality chosen without regard to population size, and to designate Commissioner of Economic and Community Development as authority to assign municipalities to the pilot program, amended Subsec. (d) to add Department of Public Health, to change designation from one staff member to one or more staff members, to require Commissioners of Economic and Community Development, Environmental Protection and Public Health and the executive director of Connecticut Development Authority to enter into a memorandum of understanding, to change “shall” to “may” re develop and recruit two volunteers, to delete reference to liaisons and office's response team, and to make requirement that volunteers assist the office discretionary, and amended Subsec. (f) to require that each property funded under program be investigated in accordance with prevailing standards and guidelines, to provide that submitted report be a verification report, and to provide that Commissioner of Environmental Protection notify municipality or economic development agency, effective July 1, 2007; P.A. 11-80 amended Subsecs. (d), (f) and (h) by changing “Department of Environmental Protection” and “Commissioner of Environmental Protection” to “Department of Energy and Environmental Protection” and “Commissioner of Energy and Environmental Protection”, respectively, effective July 1, 2011; P.A. 11-140 amended Subsec. (b) by adding Subdiv. (8) re cooperative agreements with qualified implementing agencies, effective July 8, 2011; P.A. 11-141 amended Subsec. (a) to add requirements for office to promote and encourage development and redevelopment of brownfields and to coordinate and cooperate with agencies and individuals, amended Subsec. (b)(3) to require maintenance of a web site, amended Subsec. (b)(7) to provide that outreach program shall be with regard to state programs, rather than state policies and procedures, and for remediation and redevelopment, amended Subsec. (c) by changing “state-funded pilot program” to “state-funded municipal brownfield grant program”, changing number of participating municipalities from 5 to at least 6 per round of funding and changing from 1 to 2 the number of municipalities to be chosen without regard to population, amended Subsec. (d) to include Office of Policy and Management and to allow volunteers to help with marketing programs and activities, rather than to assist with goals of section, amended Subsec. (f) to change “pilot program” to “grant program”, add references to licensed environmental professional, add references to an audit not being conducted and delete provision re recording of environmental land use restriction, amended Subsec. (g) to delete references to section 11 of public act 06-184 and to redefine “brownfields” and amended Subsec. (h) to delete reference to section 11 of public act 06-184, effective July 1, 2011; Oct. Sp. Sess. P.A. 11-1 amended Subsec. (b) by changing “may” to “at the office's discretion” in Subdiv. (8) and adding Subdiv. (9) re additional web site, effective October 27, 2011; P.A. 12-183 amended Subsec. (a) by adding provision re office to be managed by director appointed by commissioner and amended Subsec. (b)(6) by adding provision re identification of abandoned and underutilized mills, effective June 15, 2012; pursuant to June 12 Sp. Sess. P.A. 12-1, “Connecticut Development Authority” was changed editorially by the Revisors to “Connecticut Innovations, Incorporated” in Subsec. (d), effective July 1, 2012; P.A. 13-123 amended Subsec. (d) to change “executive director” to “chief executive officer”, effective June 18, 2013; P.A. 13-308 amended Subsec. (a) by changing “development and redevelopment” to “remediation and development”, amended Subsec. (b) by changing “municipality or the region” to “municipalities or the regions” in Subdiv. (6) and by changing “qualified implementing” to “economic development” in Subdiv. (8), deleted former Subsecs. (c) and (f) to (h), redesignated existing Subsecs. (d) and (e) as Subsecs. (c) and (d) and made technical and conforming changes, effective July 1, 2013; Sec. 32-9cc transferred to Sec. 32-761 in 2014.
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Sec. 32-762. Brownfield remediation and development account. (a) There is established an account to be known as the “brownfield remediation and development account”, which shall be a separate, nonlapsing account within the General Fund. There shall be deposited in the account: (1) The proceeds of bonds issued by the state for deposit into said account and used in accordance with this section; (2) repayments of assistance provided pursuant to subsection (c) of section 22a-133u; (3) interest or other income earned on the investment of moneys in the account; (4) funds recovered pursuant to sections 32-766 and 32-767; (5) any proceeds realized by the state from activities pursuant to section 32-763 or section 32-765; and (6) all funds required by law to be deposited in the account. Any balance remaining in the account at the end of any fiscal year shall be carried forward in the account for the fiscal year next succeeding.
(b) All moneys received in consideration of financial assistance, including payments of principal and interest on any loans made pursuant to section 32-765, shall be credited to the account and shall become part of the assets of the account. At the discretion of the Commissioner of Economic and Community Development and subject to the approval of the Secretary of the Office of Policy and Management, any federal, private or other moneys received by the state in connection with projects undertaken pursuant to section 32-763 or section 32-765 shall be credited to the assets of the account.
(c) Notwithstanding any provision of the general statutes, proceeds from the sale of bonds available pursuant to subdivision (1) of subsection (b) of section 4-66c may, with the approval of the Governor and the State Bond Commission, be used to capitalize the account.
(d) The commissioner may use funds in the account (1) to provide financial assistance for the remediation and development of brownfields in the state pursuant to section 32-763 or section 32-765, (2) to provide financial assistance to parcel owners required to perform mitigation actions pursuant to section 22a-6u, and (3) for administrative costs not to exceed five per cent of such funds.
(P.A. 13-308, S. 3.)
History: P.A. 13-308 effective July 1, 2013.
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Sec. 32-763. (Formerly Sec. 32-9kk). Remedial action and redevelopment municipal grant program. (a) There is established a remedial action and redevelopment municipal grant program to be administered by the Department of Economic and Community Development for the purpose of providing grants to municipalities, Connecticut brownfield land banks and economic development agencies for the eligible costs of brownfield remediation projects, brownfield assessment projects and reasonable administrative expenses not to exceed five per cent of any grant awarded. A grant awarded under this section shall not exceed four million dollars.
(b) A grant applicant shall submit an application to the Commissioner of Economic and Community Development on forms provided by the commissioner and with such information the commissioner deems necessary, including, but not limited to: (1) A description of the proposed project; (2) an explanation of the expected benefits of the project in relation to the purposes of this section; (3) information concerning the financial and technical capacity of the applicant to undertake the proposed project; (4) a project budget; and (5) with respect to a brownfield remediation project, a description of the condition of the brownfield, including the results of any environmental assessment of the brownfield in the possession of or available to the applicant.
(c) The commissioner may approve, reject or modify any application properly submitted in accordance with the provisions of this section. The commissioner may not reject an application solely because a municipality has submitted more than one application in response to a request for applications. In reviewing an application and determining the amount of the grant, if any, to be provided, the commissioner shall consider the following criteria: (1) The availability of funds; (2) the estimated costs of assessing and remediating the brownfield, if known; (3) the relative economic condition of the municipality in which the brownfield is located; (4) the relative need of the project for financial assistance; (5) the degree to which a grant under this section is necessary to induce the applicant to undertake the project; (6) the public health and environmental benefits of the project; (7) the relative benefits of the project to the municipality, the region and the state, including, but not limited to, the extent to which the project will likely result in a contribution to the municipality's tax base, the retention and creation of jobs and the reduction of blight; (8) the time frame in which the contamination occurred; (9) the relationship of the applicant to the person or entity that caused the contamination; (10) the length of time the brownfield has been abandoned; (11) the taxes owed and the projected revenues that may be restored to the community; (12) the relative need for assessment of the brownfield within the municipality or region; (13) whether the brownfield is located in a federally designated opportunity zone; and (14) such other criteria as the commissioner may establish consistent with the purposes of this section.
(d) The commissioner shall award grants on a competitive basis, based on a request for applications occurring at least twice annually. The commissioner may increase the frequency of requests for applications and awards depending upon the number of applicants and the availability of funding. A municipality may submit more than one application in response to a request for applications. On and after July 1, 2019, the commissioner shall give priority to grant applications for brownfields located in federally designated opportunity zones.
(e) If a grant recipient is not subject to section 22a-134a, such recipient shall enter a program for remediation of the property pursuant to either section 22a-133x, 22a-133y, 32-768 or 32-769, as determined by the commissioner, except no such recipient shall be required to enter such a program if the grant funds are used (1) for the abatement of hazardous building materials and such recipient demonstrates to the satisfaction of the Commissioners of Economic and Community Development and Energy and Environmental Protection that such hazardous building materials represent the sole or sole remaining environmental contamination on the property, (2) solely for assessment of the brownfield, or (3) as provided in subsection (g) of this section.
(f) The commissioner, in consultation with the Commissioner of Energy and Environmental Protection and following the award of a grant to a municipality, Connecticut brownfield land bank or economic development agency pursuant to subsections (c) and (d) of this section, may award an additional grant to such municipality, Connecticut brownfield land bank or economic development agency to enable the completion of a brownfield remediation or assessment project, provided such project is identified as a priority by said commissioners and such additional grant funds (1) will be used to address unexpected cost overruns or costs related to remedial activities that will provide a greater environmental benefit than originally proposed pursuant to subsection (b) of this section, (2) do not exceed fifty per cent of the original grant, and (3) will not result in more than four million dollars in total grants being awarded for a single brownfield remediation or assessment project.
(g) The commissioner may award grants to any municipality, Connecticut brownfield land bank, economic development agency or regional council of governments organized under sections 4-124i to 4-124p, inclusive, for the eligible costs of developing a comprehensive plan for the remediation and redevelopment of multiple brownfields whenever such plan is consistent with the state plan of conservation and development, adopted pursuant to chapter 297, and the plan of conservation and development, adopted pursuant to section 8-23, for each municipality in which such brownfields are located. For purposes of this subsection, “eligible costs” shall also include expenditures associated with the development of any such plan for remediation and redevelopment.
(h) The provisions of sections 32-5a and 32-701 shall not apply to grants provided pursuant to this section.
(P.A. 07-233, S. 3–6; P.A. 08-174, S. 5; P.A. 11-80, S. 1; 11-141, S. 7; P.A. 12-183, S. 1–4; June 12 Sp. Sess. P.A. 12-1, S. 152; P.A. 13-123, S. 10; 13-308, S. 4; P.A. 15-193, S. 1; P.A. 17-214, S. 12; P.A. 18-85, S. 5; P.A. 19-54, S. 11; P.A. 20-1, S. 91.)
History: P.A. 07-233 effective July 1, 2007; P.A. 08-174 amended Subsec. (a)(7) to redefine “eligible brownfield project” to include foreclosure and investigation, added Subsec. (a)(11) to define “eligible grant recipients”, amended Subsec. (b) to include reference to Subsecs. (e) and (f), amended Subsec. (d) to include a contribution to municipality's tax base in Subdiv. (7), to insert new Subdivs. (10) re length of abandonment, (11) re taxes owed and (12) re type of financial assistance requested and to renumber existing Subdiv. (10) re other criteria as new Subdiv. (13), added new Subsec. (e) re remedial action and redevelopment municipal grant program, added new Subsec. (f) re targeted brownfield development loan program, redesignated existing Subsecs. (e) to (m) as new Subsecs. (g) to (o) and made technical changes, effective July 1, 2008; pursuant to P.A. 11-80, “Commissioner of Environmental Protection” and “Department of Environmental Protection” were changed editorially by the Revisors to “Commissioner of Energy and Environmental Protection” and “Department of Energy and Environmental Protection”, respectively, effective July 1, 2011; P.A. 11-141 amended Subsec. (a)(1) by redefining “brownfield” to include sites where expansion has not occurred and that require investigation or remediation, effective July 1, 2011; P.A. 12-183 amended Subsec. (a) by redefining “eligible applicant” in Subdiv. (4), redefining “eligible grant recipients” in Subdiv. (11) and adding Subdiv. (12) defining “economic development agency”, amended Subsec. (f) by replacing provision re loans for developing housing to serve needs of first-time home buyers with provision re loans for developing affordable housing units, suitable for first-time home buyers, incentive housing zones, workforce housing and other residential purposes in Subdiv. (2), adding “or provide a specified number of affordable housing units” in Subdiv. (4), adding “residential” re use or reuse of property, changing “housing needs” to “affordable housing needs” and adding “for workforce housing” in Subdiv. (7), and adding Subdiv. (10) re availability of loan program to municipalities, amended Subsec. (j) by adding provision re use of funds for staffing, marketing, web site development and administration of Office of Brownfield Remediation and Development, and amended Subsec. (l)(4) by adding reference to Subsec. (k), effective July 1, 2012; pursuant to June 12 Sp. Sess. P.A. 12-1, “Connecticut Development Authority” was changed editorially by the Revisors to “Connecticut Innovations, Incorporated”, effective July 1, 2012; P.A. 13-123 made technical changes in Subsec. (a)(4), effective June 18, 2013; P.A. 13-308 made substantial revisions to section, deleted former Subsecs. (a) to (d), (e)(3) to (5), (e)(7) and (8) and (f) to (o), redesignated existing Subsec. (e)(1) as Subsec. (a), existing Subsec. (e)(2) as Subsec. (d) and existing Subsec. (e)(6) as Subsec. (e), amended redesignated Subsec. (a) by redefining purpose of grant program and limiting any grant to no more than four million dollars, added new Subsec. (b) re grant applications, added new Subsec. (c) re approval of grant applications, amended redesignated Subsec. (d) by changing annual date of request for applications from June 1 to October 1, annually, added Subsec. (f) re remediation programs for recipients of loans from grant recipients, added Subsec. (g) re applicability of Secs. 32-5a and 32-701, and made technical and conforming changes, effective July 1, 2013; Sec. 32-9kk transferred to Sec. 32-763 in 2014; P.A. 15-193 replaced former Subsecs. (e) and (f) re low-interest loans to brownfield redeveloper with new Subsecs. (e) and (f) re additional grants to municipalities and economic development agencies for brownfield remediation and assessment projects and grants to municipalities, economic development agencies and regional councils of governments for brownfield remediation and redevelopment plans, effective July 1, 2015; P.A. 17-214 amended Subsecs. (a), (e) and (f) by adding references to Connecticut brownfield land bank, effective July 1, 2017; P.A. 18-85 added new Subsec. (e) re requirements for certain grant recipients to enter certain property remediation programs, and redesignated existing Subsecs. (e) to (g) as Subsecs. (f) to (h); P.A. 19-54 amended Subsec. (c) to add new Subdiv. (13) re brownfield located in federally designated opportunity zone, and redesignated existing Subdiv. (13) as Subdiv. (14), and amended Subsec. (d) to add provision re commissioner to give priority to grant applications for brownfields located in federally designated opportunity zones, effective July 1, 2019; P.A. 20-1 amended Subsec. (c) to add provision re commissioner may not reject application solely because municipality has submitted more than one application and amended Subsec. (d) to replace “on or before October first,” with “at least twice” and add provision re municipality may submit more than one application, effective March 12, 2020.
See Sec. 32-22b re loan guarantee program.
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Sec. 32-764. (Formerly Sec. 32-9ee). Liability for pre-existing or existing conditions. Transfer of remediated brownfields. (a) Any recipient of a grant pursuant to section 32-763 or subsection (c) of section 32-9cc of the general statutes, revision of 1958, revised to January 1, 2013, shall not be liable under section 22a-427, 22a-432, 22a-433, 22a-451 or 22a-452 for conditions pre-existing or existing on the brownfield property as of the date of acquisition or control, provided such recipient (1) did not establish, create, cause or contribute to the discharge, spillage, uncontrolled loss, seepage or filtration of such hazardous substance, material, waste or pollution that is subject to remediation under section 22a-133k and funded by the Office of Brownfield Remediation and Development or the Department of Economic and Community Development; (2) does not exacerbate the conditions; and (3) complies with reporting of significant environmental hazard requirements in section 22a-6u. To the extent that any conditions are exacerbated, such recipient shall only be responsible for responding to contamination exacerbated by its negligent or reckless activities.
(b) Upon remediation (1) as approved by the Department of Energy and Environmental Protection, or (2) in accordance with section 22a-133x, 22a-134a, 32-768 or 32-769 of a brownfield property by a recipient of a grant pursuant to section 32-763, such recipient may transfer the property to any person, provided such person is not otherwise liable under section 22a-427, 22a-432, 22a-433, 22a-451 or 22a-452 with respect to the property. Any person who acquires title pursuant to this section shall not be liable under section 22a-427, 22a-432, 22a-433, 22a-451 or 22a-452 with respect to preexisting conditions on the property, provided such person (A) does not cause or contribute to the discharge, spillage, uncontrolled loss, seepage or filtration of such hazardous substance, material or waste, and (B) such person is not a member, officer, manager, director, shareholder, subsidiary, successor of, related to, or affiliated with, directly or indirectly, the person who is otherwise liable under section 22a-427, 22a-432, 22a-433, 22a-451 or 22a-452 with respect to the property. The Commissioner of Energy and Environmental Protection shall provide such person with a covenant not to sue pursuant to section 22a-133aa and shall not require the prospective purchaser or owner to pay a fee in exchange for such covenant.
(c) No person shall acquire title to or hold, possess or maintain any interest in a property that has been remediated with grant funds awarded pursuant to section 32-763 if such person (1) is liable under section 22a-427, 22a-432, 22a-433, 22a-451 or 22a-452 with respect to the property, (2) is otherwise responsible, directly or indirectly, for the discharge, spillage, uncontrolled loss, seepage or filtration of such hazardous substance, material or waste, (3) is a member, officer, manager, director, shareholder, subsidiary, successor of, related to, or affiliated with, directly or indirectly, the person who is otherwise liable under section 22a-427, 22a-432, 22a-433, 22a-451 or 22a-452 with respect to the property, or (4) is or was an owner, operator or tenant of the property. If such person elects to acquire title to or hold, possess or maintain any interest in the property, that person shall reimburse the state of Connecticut, the municipality and the economic development agency for any and all costs expended to perform the investigation and remediation of the property, plus interest at a rate of eighteen per cent.
(d) Notwithstanding section 22a-134a, a recipient of a grant pursuant to section 32-763 may acquire and convey its interest in the property without such recipient or the subsequent purchaser incurring liability, including any such liability incurred pursuant to section 22a-134a, provided the property (1) was remediated pursuant to section 22a-133x, 22a-133y, 32-768 or 32-769 or pursuant to an order issued by the Commissioner of Energy and Environmental Protection and such remediation was (A) performed in accordance with the standards adopted pursuant to section 22a-133k, as determined by said commissioner, or (B) if authorized by said commissioner, verified by a licensed environmental professional unless such verification has been rejected by said commissioner subsequent to an audit conducted by said commissioner and provided the subsequent purchaser has no direct or related liability for the site conditions; and (2) is not an establishment, as defined in section 22a-134, based on business operations occurring after such recipient remediated the property.
(P.A. 06-184, S. 4, 5, 7; P.A. 07-233, S. 2; P.A. 09-235, S. 4; P.A. 11-141, S. 2; P.A. 13-308, S. 5.)
History: P.A. 06-184 effective July 1, 2006; P.A. 07-233 amended Subsec. (b) to provide that available funds are for “an eligible” brownfield remediation and that Commissioner of Economic and Community Development, rather than Office of Brownfield Remediation and Development, makes determination, added new Subdivs. (2) and (3) and redesignated existing Subdiv. (2) as Subdiv. (4), effective July 1, 2007; P.A. 09-235 amended Subsec. (a) to add entities established under Ch. 130 or 132, certain nonprofit economic corporations, nonstock corporations and limited liability companies controlled or established by a municipality, and municipal economic development agencies or entities established under Ch. 130 or 132 to list of entities to which Sec. applies, to include grants made by Department of Economic and Community Development, to provide that such entities are not liable for conditions as of date of acquisition or control, to require such entities to not have established cause for remediation to be considered an innocent party, and to require in case of exacerbated conditions that any such entity only be responsible for responding to contamination exacerbated by its own negligence or recklessness, effective July 1, 2009; P.A. 11-141 amended Subsecs. (a) and (c) to change “pilot program” to “municipal brownfield grant program”, effective July 1, 2011; P.A. 13-308 amended Subsec. (a) to replace provisions re specified entities with provisions re recipient of a grant and add reference to Sec. 22a-427, amended Subsec. (b) to replace former provisions with provisions re transfer of remediated brownfields, amended Subsec. (c) to add references to Sec. 22a-427, added Subsec. (d) re acquisition of remediated brownfields and made technical and conforming changes, effective July 1, 2013; Sec. 32-9ee transferred to Sec. 32-764 in 2014.
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Sec. 32-765. Targeted brownfield development loan program. (a) The Department of Economic and Community Development shall establish a targeted brownfield development loan program to provide low-interest loans for the eligible costs of brownfield remediation projects to potential brownfield purchasers and current brownfield owners who (1) have no direct or related liability for the conditions of the brownfield, and (2) seek to develop brownfields for purposes of reducing blight or for industrial, commercial, residential or mixed use development.
(b) Notwithstanding subsection (a) of this section, a current owner of a brownfield on which a manufacturing facility is located shall be eligible for a loan under this section, provided neither such owner nor any partner, member, officer, manager, director, shareholder, subsidiary or affiliate of such owner (1) is liable under section 22a-427, 22a-432, 22a-433, 22a-451 or 22a-452 with respect to the property; (2) is otherwise responsible, directly or indirectly, for the discharge, spillage, uncontrolled loss, seepage or filtration of the hazardous substance, material or waste; (3) is a member, officer, manager, director, shareholder, subsidiary, successor of, or affiliated with, directly or indirectly, the person who is otherwise liable under section 22a-427, 22a-432, 22a-433, 22a-451 or 22a-452 with respect to the property; or (4) has been found guilty of knowingly or wilfully violating any environmental law.
(c) An applicant for a loan pursuant to this section shall submit an application to the Commissioner of Economic and Community Development on forms provided by the commissioner and with such information the commissioner deems necessary, including, but not limited to: (1) A description of the proposed project; (2) an explanation of the expected benefits of the project in relation to the purposes of this section; (3) information concerning the financial and technical capacity of the applicant to undertake the proposed project; (4) a project budget; and (5) a description of the condition of the brownfield involved, including the results of any environmental assessment of the brownfield in the possession of or available to the applicant. The commissioner shall provide loans based upon project merit and viability, the economic and community development opportunity, municipal support, contribution to the community's tax base, past experience of the applicant, compliance history and ability to pay. For applications received on and after July 1, 2019, the commissioner shall give priority to proposed projects located in federally designated opportunity zones.
(d) If a loan recipient is not subject to section 22a-134a, such recipient shall enter a program for remediation of the property pursuant to either section 22a-133x, 22a-133y, 32-768 or 32-769, as determined by the commissioner, except if the loan funds are used for the abatement of hazardous building materials and such recipient demonstrates to the satisfaction of the Commissioners of Economic and Community Development and Energy and Environmental Protection that such hazardous building materials represent the sole or sole remaining environmental contamination on the property.
(e) Loans made pursuant to this section shall have such terms and conditions and be subject to such eligibility and loan approval criteria as determined by the commissioner. Such loans shall be for a period not to exceed thirty years.
(f) If a loan recipient sells a property subject to a loan granted pursuant to this section before the loan is repaid, the loan shall be payable upon closing of such sale, according to its terms, unless the commissioner agrees otherwise. The commissioner may carry the loan forward as an encumbrance to the purchaser with the same terms and conditions as the original loan.
(g) A loan recipient may be eligible for a loan of not more than four million dollars per year, subject to agency underwriting and reasonable and customary requirements to assure performance. If additional funds are required, the commissioner may recommend that the project be funded through other programs administered by the commissioner.
(h) The commissioner may modify the terms of any loan made pursuant to this section to provide for forgiveness of interest, principal, or both, or delay in repayment of interest, principal, or both, when the commissioner determines such forgiveness or delay is in the best interest of the state from an economic or community development perspective.
(i) The provisions of sections 32-5a and 32-701 shall not apply to loans provided pursuant to this section.
(P.A. 13-308, S. 6; P.A. 14-88, S. 7; P.A. 15-193, S. 2; P.A. 18-85, S. 1; P.A. 19-54, S. 10.)
History: P.A. 13-308 effective July 1, 2013; P.A. 14-88 amended Subsec. (h) by deleting “to a municipality or economic development agency” re modification of loan terms and by adding “from an economic or community development perspective” re forgiveness or delay, effective June 3, 2014; P.A. 15-193 amended Subsec. (d) by adding provision re exception to property remediation program if loan recipient used loan funds for the abatement of hazardous building materials, and amended Subsec. (g) by changing maximum loan amount from $2,000,000 per year to $4,000,000 per year and by deleting “for not more than two years,”, effective July 1, 2015; P.A. 18-85 amended Subsec. (e) by increasing maximum loan period from 20 years to 30 years, effective July 1, 2018, and applicable to loans issued on or after July 1, 2018; P.A. 19-54 amended Subsec. (c) to add provision re commissioner to give priority to projects located in federally designated opportunity zones, effective July 1, 2019.
See Sec. 32-22b re loan guarantee program.
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Sec. 32-766. Terms and conditions of financial assistance. The Commissioner of Economic and Community Development shall establish the terms and conditions of any financial assistance provided pursuant to section 32-763 or section 32-765. The commissioner may make any stipulation in connection with an offer of financial assistance the commissioner deems necessary to implement the policies and purposes of section 32-763 or section 32-765, including, but not limited to, (1) a requirement of assurance from a grant or loan recipient that such recipient will discharge its obligations in connection with the project, (2) a requirement that a grant or loan recipient provide the department with appropriate security for such financial assistance, including, but not limited to, a letter of credit, a lien on real property or a security interest in goods, equipment, inventory or other property of any kind, and (3) a requirement that a grant or loan recipient reimburse the state for such financial assistance in the event that it receives funds for remediation from other sources.
(P.A. 13-308, S. 7.)
History: P.A. 13-308 effective July 1, 2013.
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Sec. 32-767. Reimbursement for costs and expenses of assessment or remediation. (a) Whenever funds are used pursuant to section 32-763 or section 32-765, for purposes of environmental assessments or remediation of a brownfield, the Commissioner of Energy and Environmental Protection may seek reimbursement of the costs and expenses incurred by requesting the Attorney General to bring a civil action to recover such costs and expenses from any party responsible for such pollution, provided no such action shall be brought separately from any action to recover costs and expenses incurred by the Commissioner of Energy and Environmental Protection in pursuing action to contain, remove or mitigate any pollution on such site. The costs and expenses recovered in an action brought pursuant to this section may include, but shall not be limited to: (1) The actual cost of identifying, evaluating, planning for and undertaking the remediation of the site; (2) any administrative costs not exceeding ten per cent of the actual costs; (3) the costs of recovering the reimbursement; and (4) interest on the actual costs at a rate of ten per cent per year from the date such expenses were paid.
(b) The defendant in any civil action brought pursuant to this subsection shall have no cause of action or claim for contribution against any person with whom the Commissioner of Energy and Environmental Protection has entered into a covenant not to sue pursuant to section 22a-133aa or 22a-133bb with respect to pollution on or emanating from the property that is the subject of said civil action.
(c) Any funds recovered pursuant to this section shall be deposited in the brownfield remediation and development account established pursuant to section 32-762. The provisions of this section shall be in addition to any other remedies provided by law.
(P.A. 13-308, S. 8.)
History: P.A. 13-308 effective July 1, 2013.
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Sec. 32-768. (Formerly Sec. 32-9ll). Abandoned brownfield cleanup program. (a) There is established an abandoned brownfield cleanup program. The Commissioner of Economic and Community Development shall determine, in consultation with the Commissioner of Energy and Environmental Protection, properties and persons eligible for said program.
(b) For a person or a property to be eligible, the Commissioner of Economic and Community Development shall determine if (1) the property is a brownfield, as defined in section 32-760, that has been unused or significantly underused for at least five years before an application is filed with the commissioner pursuant to subsection (h) of this section; (2) such person intends to acquire title to such property for the purpose of redeveloping such property; (3) the redevelopment of such property has a regional or municipal economic development benefit; (4) such person did not establish or create a facility or condition at or on such property that can reasonably be expected to create a source of pollution to the waters of the state for the purposes of section 22a-432 and is not affiliated with any person responsible for such pollution or source of pollution through any direct or indirect familial relationship or any contractual, corporate or financial relationship other than a relationship by which such owner's interest in such property is leased for a term not exceeding five years or is to be conveyed or financed; (5) such person is not otherwise required by law, an order or consent order issued by the Commissioner of Energy and Environmental Protection or a stipulated judgment to remediate pollution on or emanating from such property; (6) the person responsible for pollution on or emanating from the property is indeterminable, is no longer in existence, is required by law to remediate releases on and emanating from the property or is otherwise unable to perform necessary remediation of such property; and (7) the property and the person meet any other criteria said commissioner deems necessary.
(c) Notwithstanding the provisions of subsection (b) of this section, a property owned by a municipality, a Connecticut brownfield land bank or an economic development agency shall not be subject to subdivision (6) of subsection (b) of this section.
(d) Notwithstanding the provisions of subsection (b) of this section, a municipality or a Connecticut brownfield land bank may request the Commissioner of Economic and Community Development to determine if a property is eligible regardless of the person who currently owns such property.
(e) Notwithstanding subsection (b) of this section, the Commissioner of Economic and Community Development may waive the requirement of subdivision (1) of subsection (b) of this section, if the person seeking eligibility under this section otherwise demonstrates the eligibility of the property and the value of the redevelopment of such property.
(f) Upon designation by the Commissioner of Economic and Community Development, in consultation with the Commissioner of Energy and Environmental Protection, of an eligible person who holds title to such property, such eligible person shall (1) enter the voluntary remediation program established in section 22a-133x not later than six months after the date such eligible person takes title to such property, except that the Commissioner of Economic and Community Development, in consultation with the Commissioner of Energy and Environmental Protection, may allow such eligible person to enter such voluntary remediation program later than six months after the date such eligible person takes title to such property; (2) remain in and comply with the requirements of such voluntary remediation program; (3) investigate pollution on such property in accordance with prevailing standards and guidelines and remediate pollution on such property in accordance with regulations established for remediation adopted by the Commissioner of Energy and Environmental Protection and in accordance with applicable schedules; and (4) eliminate further emanation or migration of any pollution from such property.
(g) An eligible person who has been accepted by the commissioner or holds title to an eligible property designated to be in the abandoned brownfield cleanup program, and who remains in compliance with subsection (f) of this section, shall not be responsible for investigating or remediating any pollution or source of pollution that has emanated from such property prior to such person taking title to such property, and shall not be liable to the state or any person for the release of any regulated substance at or from the eligible property prior to taking title to such eligible property except and only to the extent that such applicant caused or contributed to the release of a regulated substance that is subject to remediation or negligently or recklessly exacerbated such condition.
(h) Any applicant seeking a designation of eligibility for a person or a property under the abandoned brownfield cleanup program shall apply to the Commissioner of Economic and Community Development at such times and on such forms as the commissioner may prescribe.
(i) Not later than sixty days after receipt of the application, the Commissioner of Economic and Community Development shall determine if the application is complete and shall notify the applicant of such determination.
(j) Not later than ninety days after determining that the application is complete, the Commissioner of Economic and Community Development shall determine whether to include the property and applicant in the abandoned brownfield cleanup program. The applicant shall have two years from the date on which the commissioner designates such property for inclusion in the abandoned brownfield cleanup program to acquire title to the designated property. The commissioner may, at the commissioner's discretion, extend such deadline for acquiring such property upon the request of the applicant.
(k) Designation of a property in the abandoned brownfield cleanup program by the Commissioner of Economic and Community Development shall not limit the applicant's or any other person's ability to seek funding for such property under any other brownfield grant or loan program administered by the Department of Economic and Community Development, Connecticut Innovations, Incorporated or the Department of Energy and Environmental Protection.
(l) Designation of a property in the abandoned brownfield cleanup program by the Commissioner of Economic and Community Development shall exempt such eligible person from filing as an establishment pursuant to sections 22a-134a to 22a-134d, inclusive, if such real property or prior business operations constitute an establishment.
(m) (1) Not later than sixty days after the receipt of a verification, as defined in section 22a-133x, for such property or portion of such property, the Commissioner of Energy and Environmental Protection shall notify such eligible person and the Commissioner of Economic and Community Development whether the Commissioner of Energy and Environmental Protection will conduct an audit of such verification. The Commissioner of Energy and Environmental Protection shall conduct any such audit not later than one hundred eighty days after the department's receipt of such verification, except as provided in subdivisions (2) and (3) of this subsection. Not later than fourteen days after the completion of any such audit, the Commissioner of Energy and Environmental Protection shall provide written audit findings to such eligible person, the Commissioner of Economic and Community Development and the licensed environmental professional that issued such verification. The written audit findings shall approve or disapprove of such verification, provided any written audit findings disapproving of such verification shall include the reasons for such disapproval.
(2) The Commissioner of Energy and Environmental Protection may request additional information from an eligible person during any audit of a verification. If such eligible person does not provide the requested information to said commissioner within fourteen days of such request, the time period to conduct an audit under subdivision (1) of this subsection shall be suspended until such information is provided to said commissioner.
(3) The Commissioner of Energy and Environmental Protection may conduct an audit of any verification later than one hundred eighty days after the receipt of such verification by the Department of Energy and Environmental Protection (A) to the extent the time period to conduct such audit is suspended pursuant to subdivision (2) of this subsection; (B) if said commissioner has reason to believe that a verification was obtained through the submittal of materially inaccurate or erroneous information or otherwise misleading information material to the verification or that material misrepresentations were made in connection with the submittal of the verification; (C) if any post-verification monitoring of operations and maintenance is required as part of a verification and such monitoring has not been completed; (D) if such verification relies upon an environmental land use restriction that was not recorded on the land records of the municipality in which such property is located, pursuant to section 22a-133o or any applicable regulations; (E) if said commissioner determines that there has been a violation of law material to the verification; or (F) if said commissioner determines that information exists that indicates that the remediation may have failed to prevent releases on the property that are a substantial threat to public health or the environment.
(n) Not later than sixty days after such eligible person's receipt of a notice of disapproval of a verification for a property from the Commissioner of Energy and Environmental Protection, such eligible person shall submit to the Commissioners of Energy and Environmental Protection and Economic and Community Development a report of cure of noted deficiencies. Not later than sixty days after the receipt of such report of cure of noted deficiencies by the Commissioner of Energy and Environmental Protection, said commissioner shall issue a successful audit closure letter or a written disapproval of such report of cure of noted deficiencies.
(o) Upon completion of the requirements of subsection (f) of this section to the satisfaction of the Commissioner of Energy and Environmental Protection, such person shall qualify for a covenant not to sue from the Commissioner of Energy and Environmental Protection without fee, pursuant to section 22a-133aa.
(p) Any person designated as an eligible person under the abandoned brownfield cleanup program shall not be liable to the Commissioner of Energy and Environmental Protection or any person under section 22a-432, 22a-433, 22a-451 or 22a-452 or other similar statute or common law for conditions preexisting or existing on the brownfield property as of the date of acquisition or control as long as the person (1) did not establish, cause or contribute to the discharge, spillage, uncontrolled loss, seepage or filtration of such hazardous substance, material, waste or pollution; (2) does not exacerbate the conditions; (3) complies with reporting of significant environmental hazard requirements in section 22a-6u; and (4) remains in compliance with subsection (f) of this section. To the extent that any conditions are exacerbated, the person shall only be responsible for responding to contamination exacerbated by its negligent or reckless activities.
(q) Any person who acquires a property in the abandoned brownfield cleanup program shall apply to the Commissioner of Economic and Community Development on a form prescribed by the commissioner to determine if such person qualifies as an eligible party under the abandoned brownfield cleanup program. If the commissioner determines that such person is an eligible party, such eligible party shall be subject to the provisions of this section, and shall receive liability relief pursuant to subsections (g), (l), (o) and (p) of this section.
(P.A. 09-235, S. 7; P.A. 11-80, S. 1; 11-141, S. 9; June 12 Sp. Sess. P.A. 12-1, S. 152; P.A. 13-308, S. 9; P.A. 17-214, S. 13; P.A. 22-68, S. 1.)
History: Pursuant to P.A. 11-80, “Commissioner of Environmental Protection” and “Department of Environmental Protection” were changed editorially by the Revisors to “Commissioner of Energy and Environmental Protection” and “Department of Energy and Environmental Protection”, respectively, effective July 1, 2011; P.A. 11-141 redesignated existing Subsec. (a) as Subsecs. (a) and (b) and existing Subsec. (b) as Subsecs. (g) and (h), amended Subsec. (b) to add references to municipality, to change time frame the property must have been underused from “since October 1, 1999” to at least five years before the application in Subdiv. (1), and to add “is required by law to remediate releases on and emanating from the property” in Subdiv. (6), added new Subsec. (c) re definition of “municipality”, added new Subsecs. (d) to (f) re certain waivers and exceptions, amended Subsec. (g) to add provisions re consultation with Commissioner of Environmental Protection and re municipalities and to remove requirement that person not be a certifying party, amended Subsec. (h) to add provisions re municipality and re liability protection, redesignated existing Subsecs. (c) to (f) as Subsecs. (i) to (l), added Subsecs. (m) to (p) re exemptions and requirements, and made technical changes, effective July 1, 2011; pursuant to June 12 Sp. Sess. P.A. 12-1, “Connecticut Development Authority” was changed editorially by the Revisors to “Connecticut Innovations, Incorporated” in Subsec. (l), effective July 1, 2012; P.A. 13-308 deleted references to municipality, deleted former Subsec. (c) re definition of “municipality”, redesignated existing Subsecs. (d) to (p) as Subsecs. (c) to (o) and made technical and conforming changes, effective July 1, 2013; Sec. 32-9ll transferred to Sec. 32-768 in 2014; P.A. 17-214 amended Subsec. (c) by adding “, a Connecticut brownfield land bank or an economic development agency” and amended Subsec. (d) by adding “or a Connecticut brownfield land bank”, effective July 1, 2017; P.A. 22-68 amended Subsec. (b)(4) by adding provision re lease of property for a term not exceeding 5 years, amended Subsec. (f) by adding provision in Subdiv. (1) re six month deadline to enter voluntary remediation program, adding new Subdiv. (2) re remaining in and complying with requirements of program and redesignating existing Subdivs. (2) and (3) as Subdivs. (3) and (4), amended Subsec. (g) by adding provision re requirement for eligible person to remain in compliance with Subsec. (f), amended Subsec. (j) by adding provision re 2 year deadline to acquire title to designated property, added new Subsec. (m) re verification audits, added new Subsec. (n) re notices of disapproval of verification, amended existing Subsec. (n) by adding Subdiv. (4) re requirement for eligible person to remain in compliance with Subsec. (f), redesignated existing Subsecs. (m) to (o) as Subsecs. (o) to (q) and made technical and conforming changes.
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Sec. 32-769. (Formerly Sec. 32-9mm). Brownfield remediation and revitalization program. Eligibility. (a) The commissioner shall, within available appropriations, establish a brownfield remediation and revitalization program to provide certain liability protections to program participants. Not more than thirty-two properties per year shall be accepted into the program. Participation in the program shall be by accepted application pursuant to this subsection or by approved nomination pursuant to subsection (c) of this section. To be considered for acceptance, an applicant shall submit to the commissioner, on a form prescribed by the commissioner, a certification that: (1) The applicant meets the definition of a bona fide prospective purchaser, innocent landowner or contiguous property owner; (2) the property meets the definition of a brownfield and has been subject to a release of a regulated substance in an amount that is in excess of the remediation standards; (3) the applicant did not establish, create or maintain a source of pollution to the waters of the state for purposes of section 22a-432 and is not responsible pursuant to any other provision of the general statutes for any pollution or source of pollution on the property; (4) the applicant is not affiliated with any person responsible for such pollution or source of pollution through any direct or indirect familial relationship or any contractual, corporate or financial relationship other than that by which such applicant's interest in such property is leased for a term not exceeding five years or is to be conveyed or financed; and (5) the property is not (A) currently the subject of an enforcement action, including any consent order issued by the Department of Energy and Environmental Protection or the United States Environmental Protection Agency under any current Department of Energy and Environmental Protection or United States Environmental Protection Agency program, (B) listed on the national priorities list of hazardous waste disposal sites compiled by the United States Environmental Protection Agency pursuant to 42 USC 9605, (C) listed on the State of Connecticut Superfund Priority List, or (D) subject to corrective action as may be required by the federal Resource Conservation and Recovery Act of 1976, 42 USC 6901 et seq. The commissioner may review such certifications to ensure accuracy, in consultation with the Commissioner of Energy and Environmental Protection, and applications will not be considered if such certifications are found inaccurate.
(b) To ensure a geographic distribution and a diversity of projects and broad access to the brownfield remediation and revitalization program, the commissioner, in consultation with the Commissioner of Energy and Environmental Protection, shall review all applications received and determine admission of eligible properties into the brownfield remediation and revitalization program taking into consideration state-wide portfolio factors including: (1) Job creation and retention; (2) sustainability; (3) readiness to proceed; (4) geographic distribution of projects; (5) population of the municipality where the property is located; (6) project size; (7) project complexity; (8) duration and degree to which the property has been underused; (9) projected increase to the municipal grand list; (10) consistency of the property as remediated and developed with municipal or regional planning objectives; (11) development plan's support for and furtherance of principles of smart growth, as defined in section 1 of public act 09-230*, or transit-oriented development, as defined in section 13b-79o; and (12) other factors as may be determined by the commissioner. Admittance into the brownfield remediation and revitalization program shall not indicate approval or award of funding requested under any federal, state or municipal grant or loan program, including, but not limited to, any state brownfield grant or loan program.
(c) The commissioner shall accept nominations of properties for participation in the program established pursuant to subsection (a) of this section by a municipality, a Connecticut brownfield land bank or an economic development agency, where no bona fide prospective purchaser, contiguous property owner or innocent landowner has applied for participation in the program. For a property to be considered for approval for nomination to the program established pursuant to this section, a municipality shall submit to the commissioner, on a form prescribed by the commissioner, a certification that the property meets the eligibility requirements provided in subdivisions (2) and (5) of subsection (a) of this section and any other relevant factors, including state-wide portfolio factors provided in subsection (b) of this section, as may be determined by the commissioner. After the commissioner approves a property's nomination, any subsequent applicant shall apply in accordance with subsections (a) and (f) of this section. In any such application, the applicant shall demonstrate it satisfies the eligibility requirements provided in subdivisions (1), (3) and (4) of subsection (a) of this section and shall demonstrate satisfaction of subdivisions (2) and (5) of subsection (a) of this section for the period after the commissioner's acceptance of the municipality's, a Connecticut brownfield land bank's or economic development agency's nomination of the property.
(d) (1) Properties otherwise eligible for the brownfield remediation and revitalization program currently being investigated and remediated in accordance with the state voluntary remediation programs under sections 22a-133x and 22a-133y, the property transfer program under section 22a-134 and the covenant not to sue programs under section 22a-133aa or 22a-133bb shall not be excluded from eligibility in said program, provided the other requirements set forth in this section are met.
(2) Properties otherwise eligible for the brownfield remediation and revitalization program that have been subject to a release requiring action pursuant to the PCB regulations or that have been subject to a release requiring action pursuant to the UST regulations shall not be deemed ineligible, but no provision of this section shall affect any eligible party's obligation under such regulations to investigate or remediate the extent of any such release.
(e) Inclusion of a property within the brownfield remediation and revitalization program by the commissioner shall not limit any person's ability to seek funding for such property under any federal, state or municipal grant or loan program, including, but not limited to, any state brownfield grant or loan program. Admittance into the brownfield remediation and revitalization program shall not indicate approval or award of funding requested under any federal, state or municipal grant or loan program, including, but not limited to, any state brownfield grant or loan program.
(f) Any applicant seeking a designation of eligibility for a person or a property under the brownfield remediation and revitalization program shall apply to the commissioner at such times and on such forms as the commissioner may prescribe. The application shall include, but not be limited to, (1) a title search, (2) the Phase I Environmental Site Assessment conducted by or for the bona fide prospective purchaser or the contiguous property owner, which shall be prepared in accordance with prevailing standards and guidelines, (3) a current property inspection, if requested by the commissioner, (4) documentation demonstrating satisfaction of the eligibility criteria set forth in subsection (a) of this section, (5) information about the project that relates to the state-wide portfolio factors set forth in subsection (b) of this section, and (6) such other information as the commissioner may request to determine admission. The applicant shall have two years from the date on which the commissioner designates such property for inclusion in the brownfield remediation and revitalization program to acquire title to the designated property. The commissioner may, at the commissioner's discretion, extend such deadline for acquiring such property upon the request of the applicant.
(g) Any applicant accepted into the brownfield remediation and revitalization program by the commissioner shall pay the Commissioner of Energy and Environmental Protection a fee equal to five per cent of the assessed value of the land, as stated on the last-completed grand list of the relevant town. The fee shall be paid in two installments, each equal to fifty per cent of such fee, subject to potential reductions as specified in subsection (h) of this section. The first installment shall be due not later than one hundred eighty days after the later of the date such applicant is notified that the application has been accepted by the commissioner or the date that such applicant takes title to the eligible property. The second installment shall be due not later than four years after the acceptance date. Upon request by such applicant, a municipality, a Connecticut brownfield land bank or an economic development agency, the commissioner may, at the commissioner's discretion, extend either or both of the installment due dates. Such fee shall be deposited into the Special Contaminated Property Remediation and Insurance Fund established pursuant to section 22a-133t and shall be available for use by the Commissioner of Energy and Environmental Protection pursuant to section 22a-133u.
(h) (1) The first installment of the fee in subsection (g) of this section shall be reduced by ten per cent for any eligible party that completes and submits to the Commissioner of Energy and Environmental Protection documentation, approved in writing by a licensed environmental professional and on a form prescribed by said commissioner, that the investigation of the property has been completed in accordance with prevailing standards and guidelines within one hundred eighty days after the date the application is accepted by the commissioner.
(2) The second installment of the fee in subsection (g) of this section shall be eliminated for any eligible party that submits the remedial action report and verification or interim verification to the Commissioner of Energy and Environmental Protection within four years after the date the application is accepted by the commissioner. In the event an eligible party submits a request for the Commissioner of Energy and Environmental Protection's approval, where such approval is required pursuant to the remediation standard and where said commissioner issues a decision on such request beyond sixty days after submittal, such four-year period shall be extended by the number of days equal to the number of days between the sixtieth day and the date a decision is issued by said commissioner, but not including the number of days that a request by said commissioner for supplemental information remains pending with the eligible party.
(3) The second installment of the fee in subsection (g) of this section shall be reduced by, or any eligible party shall receive a refund in the amount equal to, twice the reasonable environmental service costs of such investigation, as determined by the Commissioner of Energy and Environmental Protection, for any eligible party that completes and submits to the Commissioner of Energy and Environmental Protection documentation, approved in writing by a licensed environmental professional and on a form that may be prescribed by said commissioner, that the investigation of the nature and extent of any contamination that has migrated from the property has been completed in accordance with prevailing standards and guidelines. Such refund shall not exceed the amount of the second installment of the fee in subsection (g) of this section.
(4) No municipality, Connecticut brownfield land bank or economic development agency seeking designation of eligibility shall be required to pay a fee, provided, upon transfer of the eligible property from the municipality, Connecticut brownfield land bank or economic development agency to an eligible person, that eligible person shall pay to the Commissioner of Energy and Environmental Protection the fee in subsection (g) of this section in accordance with the applicable requirements in this subsection.
(5) A municipality, Connecticut brownfield land bank or economic development agency may submit a fee waiver request to the commissioner to waive a portion or the entire fee for an eligible property located within that municipality. The commissioner, at his or her discretion, shall consider the following factors in determining whether to approve a fee waiver or reduction: (A) Location of the brownfield within a distressed municipality, as defined in section 32-9p; (B) demonstration by the municipality, Connecticut brownfield land bank or economic development agency that the project is of significant economic impact; (C) demonstration by the municipality, Connecticut brownfield land bank or economic development agency that the project has a significant community benefit to the municipality; (D) demonstration that the eligible party is a governmental or nonprofit entity; and (E) demonstration that the fee required will have a detrimental effect on the overall success of the project.
(i) (1) An applicant whose application has been accepted into the brownfield remediation and revitalization program and who remains in compliance with such program's obligations pursuant to this section shall not be liable to the state or any person for the release of any regulated substance at or from the eligible property, except and only to the extent that such applicant (A) caused or contributed to the release of a regulated substance that is subject to remediation or exacerbated such condition, or (B) the Commissioner of Energy and Environmental Protection determines the existence of any of the conditions set forth in subdivision (4) of subsection (m) of this section.
(2) If such applicant conveys or, prior to July 1, 2017, conveyed a security interest, as defined in section 22a-452f, in the eligible property to a lender, as defined in section 22a-452f, and such lender (A) did not establish, create or maintain a source of pollution to the waters of the state for purposes of section 22a-432, (B) is not responsible pursuant to any other provision of the general statutes for any pollution or source of pollution on the eligible property, and (C) is not affiliated with any person responsible for such pollution or source of pollution through any direct or indirect familial relationship or any contractual, corporate or financial relationship other than that creating the security interest in the eligible property, such lender shall not be liable to the state or any person for the release of any regulated substance at or from the eligible property.
(j) (1) An applicant whose application to the brownfield remediation and revitalization program has been accepted by the commissioner (A) shall investigate the release or threatened release of any regulated substance within the boundaries of the property in accordance with prevailing standards and guidelines and remediate such release or threatened release within the boundaries of such property in accordance with the brownfield investigation plan and remediation schedule and this section, and (B) shall not be required to characterize, abate and remediate the release of a regulated substance beyond the boundary of the eligible property, except for releases caused or contributed to by such applicant.
(2) Not later than one hundred eighty days after the first installment due date, including any extension thereof by the commissioner, of the fee required pursuant to subsection (g) of this section, the eligible party shall submit to the commissioner and the Commissioner of Energy and Environmental Protection a brownfield investigation plan and remediation schedule that is signed and stamped by a licensed environmental professional. Unless otherwise approved in writing by the Commissioner of Energy and Environmental Protection, such brownfield investigation plan and remediation schedule shall provide that (A) the investigation shall be completed not later than two years after the first installment due date, including any extension thereof by the commissioner, of the fee required pursuant to subsection (g) of this section, (B) remediation shall be initiated not later than three years from the first installment due date, including any extension thereof by the commissioner, of the fee required pursuant to subsection (g) of this section, and (C) remediation shall be completed sufficiently to support either a verification or interim verification not later than eight years after the first installment due date, including any extension thereof by the commissioner, of the fee required pursuant to subsection (g) of this section. The schedule shall also include a schedule for providing public notice of the remediation prior to the initiation of such remediation in accordance with subdivision (1) of subsection (j) of this section. Not later than two years after the first installment due date, including any extension thereof by the commissioner, of the fee required pursuant to subsection (g) of this section, unless the Commissioner of Energy and Environmental Protection has specified a later day, in writing, the eligible party shall submit to the Commissioner of Energy and Environmental Protection documentation, approved in writing by a licensed environmental professional and in a form prescribed by the Commissioner of Energy and Environmental Protection, that the investigation of the property has been completed in accordance with prevailing standards and guidelines. Not later than three years after the first installment due date, including any extension thereof by the commissioner, of the fee required pursuant to subsection (g) of this section, unless the Commissioner of Energy and Environmental Protection has specified a later day, in writing, the eligible party shall notify the Commissioner of Energy and Environmental Protection and the commissioner in a form prescribed by the Commissioner of Energy and Environmental Protection that the remediation has been initiated, and shall submit to the Commissioner of Energy and Environmental Protection a remedial action plan, approved in writing by a licensed environmental professional in a form prescribed by the Commissioner of Energy and Environmental Protection. Not later than eight years after the first installment due date, including any extension thereof by the commissioner, of the fee required pursuant to subsection (g) of this section, unless the Commissioner of Energy and Environmental Protection has specified a later day, in writing, the eligible party shall complete remediation of the property and submit the remedial action report and verification or interim verification to the Commissioner of Energy and Environmental Protection and the commissioner. The Commissioner of Energy and Environmental Protection shall grant a reasonable extension if the eligible party demonstrates to the satisfaction of the Commissioner of Energy and Environmental Protection that: (i) Such eligible party has made reasonable progress toward investigation and remediation of the eligible property; and (ii) despite best efforts, circumstances beyond the control of the eligible party have significantly delayed the remediation of the eligible property.
(3) The eligible party may complete the investigation and remediation of a portion of the eligible property and submit a verification or an interim verification for such portion to the Commissioner of Energy and Environmental Protection and the commissioner, provided the eligible party (A) is in compliance with the provisions of this section and the brownfield investigation plan and remediation schedule, and (B) has, prior to submitting such verification or interim verification for such portion: (i) Timely submitted documentation to the Commissioner of Energy and Environmental Protection that the investigation of the entire property is complete in accordance with prevailing standards and guidelines, in accordance with subdivision (2) of this subsection, (ii) timely notified the Commissioner of Energy and Environmental Protection that the remediation was initiated and submitted to said commissioner a remedial action plan for the entire property originally accepted into the brownfield remediation and revitalization program, in accordance with subdivision (2) of this subsection, and (iii) demonstrated to the satisfaction of the Commissioner of Energy and Environmental Protection and the commissioner that it will complete the remediation of the remainder of the eligible property in accordance with the remediation schedule. For any verification or interim verification of a portion of the eligible property, the remediation of releases on and from such portion shall extend to the boundaries of the eligible property as a whole.
(4) An eligible party who submits an interim verification for an eligible property or a portion of an eligible property, and any subsequent owner of such eligible property, shall, until the remediation standards for groundwater are achieved, (A) operate and maintain the long-term remedy for groundwater in accordance with the remedial action plan, the interim verification and any approvals issued by the Commissioner of Energy and Environmental Protection, (B) prevent exposure to any groundwater plume containing a regulated substance in excess of the remediation standards on the property, (C) take all reasonable action to contain any groundwater plume on the property, and (D) submit annual status reports to the Commissioner of Energy and Environmental Protection and the commissioner.
(5) Before commencement of remedial action pursuant to the plan and schedule, the eligible party shall: (A) Publish notice of the remedial action in a newspaper having a substantial circulation in the town where the property is located, (B) notify the director of health of the municipality where the property is located, and (C) either (i) erect and maintain for at least thirty days in a legible condition a sign not less than six feet by four feet on the property, which shall be clearly visible from the public highway and shall include the words “ENVIRONMENTAL CLEAN-UP IN PROGRESS AT THIS SITE. FOR FURTHER INFORMATION CONTACT:” and include a telephone number for an office from which any interested person may obtain additional information about the remedial action, or (ii) mail notice of the remedial action to each owner of record of property which abuts such property, at the address on the last-completed grand list of the relevant town. Public comments shall be directed to the eligible party for a thirty-day period starting with the last provided public notice provision and such eligible party shall provide all comments and any responses to the Commissioner of Energy and Environmental Protection prior to commencing remedial action.
(6) The remedial action shall be conducted under the supervision of a licensed environmental professional and the remedial action report shall be submitted to the commissioner and the Commissioner of Energy and Environmental Protection signed and stamped by a licensed environmental professional. In such report, the licensed environmental professional shall include a detailed description of the remedial actions taken and issue a verification or interim verification for the eligible property or a portion of the eligible property, in which he or she shall render an opinion, in accordance with the standard of care provided in subsection (c) of section 22a-133w and the regulations adopted pursuant to subsection (c) of section 22a-133v, that the action taken to contain, remove or mitigate the release of regulated substances within the boundaries of such property is in accordance with the remediation standards.
(7) Copies of all applications for permits required to implement such plan and schedule in this section shall be submitted to the permit ombudsman within the Department of Economic and Community Development.
(8) Each eligible party participating in the brownfield remediation and revitalization program shall maintain all records related to its implementation of such plan and schedule and completion of the remedial action of the property for a period of not less than ten years and shall make such records available to the commissioner or the Commissioner of Energy and Environmental Protection at any time upon request by either.
(9) (A) Not later than sixty days after receiving a remedial action report signed and stamped by a licensed environmental professional and a verification or interim verification for the eligible property or a portion of the eligible property, the Commissioner of Energy and Environmental Protection shall notify the eligible party and the commissioner whether the Commissioner of Energy and Environmental Protection will conduct an audit of such remedial action. The Commissioner of Energy and Environmental Protection shall conduct any such audit not later than one hundred eighty days after the receipt of such remedial action report and verification or interim verification, plus any additional time permitted pursuant to subparagraph (B) of this subdivision, except as provided in subparagraph (C) of this subdivision. Not later than fourteen days after completion of an audit, the Commissioner of Energy and Environmental Protection shall send written audit findings to the eligible party, the commissioner and the licensed environmental professional. The audit findings may approve or disapprove the report, provided any disapproval shall set forth the reasons for such disapproval.
(B) The Commissioner of Energy and Environmental Protection may request additional information during an audit conducted pursuant to this subdivision. If such information has not been provided to said commissioner within fourteen days of such request, the time frame for said commissioner to complete the audit shall be suspended until the information is provided to said commissioner. The Commissioner of Energy and Environmental Protection may choose to conduct such audit if and when the eligible party fails to provide a response to said commissioner's request for additional information within sixty days.
(C) The Commissioner of Energy and Environmental Protection shall not conduct an audit of a verification or interim verification for the eligible property or a portion of the eligible property pursuant to this subdivision after one hundred eighty days from receipt of such verification, plus any additional time permitted pursuant to subparagraph (B) of this subdivision, unless (i) said commissioner has reason to believe that a verification was obtained through the submittal of materially inaccurate or erroneous information, or otherwise misleading information material to the verification or that material misrepresentations were made in connection with the submittal of the verification, (ii) any post-verification monitoring or operations and maintenance is required as part of a verification and has not been done, (iii) a verification that relies upon an environmental use restriction was not recorded on the land records of the municipality in which such land is located in accordance with section 22a-133o and applicable regulations, (iv) said commissioner determines that there has been a violation of law material to the verification, or (v) said commissioner determines that information exists indicating that the remediation may have failed to prevent a substantial threat to public health or the environment for releases on the property.
(k) Not later than sixty days after receiving a notice of disapproval of a verification or interim verification for the eligible property or a portion of the eligible property from the Commissioner of Energy and Environmental Protection, the eligible party shall submit to said commissioner and to the commissioner a report of cure of noted deficiencies. Within sixty days after receiving such report of cure of noted deficiencies by said commissioner, said commissioner shall issue a successful audit closure letter or a written disapproval of such report of cure of noted deficiencies.
(l) Before approving a verification or interim verification for the eligible property or a portion of the eligible property, the Commissioner of Energy and Environmental Protection may enter into a memorandum of understanding with the eligible party with regard to any further remedial action or monitoring activities on or at such property that said commissioner deems necessary for the protection of human health or the environment.
(m) (1) An eligible party who has been accepted into the brownfield remediation and revitalization program shall have no obligation as part of its plan and schedule to characterize, abate and remediate any release of a regulated substance outside the boundaries of the eligible property originally accepted into the brownfield remediation and revitalization program, provided the notification requirements of section 22a-6u pertaining to significant environmental hazards shall continue to apply to the property and the eligible party shall not be required to characterize, abate or remediate any such significant environmental hazard outside the boundaries of the subject property unless such significant environmental hazard arises from the actions of the eligible party after its acquisition of or control over the property from which such significant environmental hazard has emanated outside its own boundaries. If an eligible party who has been accepted into the brownfield remediation and revitalization program conveys or otherwise transfers its ownership of the subject property and such eligible party is in compliance with the provisions of this section and the brownfield investigation plan and remediation schedule at the time of conveyance or transfer of ownership, the provisions of this section shall apply to such transferee, if such transferee meets the eligibility criteria set forth in this section, complies with the obligations undertaken by the eligible party under this section, and timely pays the greater of: (A) Any fee required by subsection (g) or (h) of this section not yet paid by such eligible party, or (B) a fee of ten thousand dollars. In such case, all references to applicant or eligible party shall mean the subsequent owner or transferee.
(2) After the Commissioner of Energy and Environmental Protection issues either a no audit letter or a successful audit closure letter, or no audit decision has been made by said commissioner within one hundred eighty days, plus any additional time permitted pursuant to subparagraph (B) of subdivision (9) of subsection (j) of this section, after the submittal of the remedial action report and verification or interim verification, for the eligible property or a portion of the eligible property, such eligible party shall not be liable to the state or any person for (A) costs incurred in the remediation of, equitable relief relating to, or damages resulting from the release of regulated substances addressed in such verification or interim verification, and (B) historical impacts off the eligible property as a whole, including air deposition, waste disposal, impacts to sediments and natural resource damages. No eligible party shall be afforded any relief from liability such eligible party may have from a release requiring action pursuant to the PCB regulations or a release requiring action pursuant to the UST regulations.
(3) The provisions of this section concerning liability shall extend to any person who acquires title to all or part of the property for which a remedial action report and verification or interim verification have been submitted pursuant to this section, provided (A) there is payment of a fee of ten thousand dollars to said commissioner for each such extension, (B) such person acquiring all or part of the property meets the criteria of this section, and (C) the Commissioner of Energy and Environmental Protection has issued either a successful audit closure letter or no audit letter, or no audit decision has been made by said commissioner not later than one hundred eighty days, plus any additional time permitted pursuant to subparagraph (B) of subdivision (9) of subsection (j) of this section, after the submittal of the remedial action report and verification or interim verification. No municipality, Connecticut brownfield land bank or economic development agency that acquires title to all or part of the property shall be required to pay a fee, provided the municipality, Connecticut brownfield land bank or economic development agency shall collect and pay the fee upon transfer of the property to another person for purposes of development. Such fee shall be deposited into the Special Contaminated Property Remediation and Insurance Fund established under section 22a-133t and such funds shall be for the exclusive use by the Department of Energy and Environmental Protection.
(4) Neither a successful audit closure nor no audit letter issued pursuant to this section, nor the expiration of one hundred eighty days, plus any additional time permitted pursuant to subparagraph (B) of subdivision (9) of subsection (j) of this section, after the submittal of the remedial action report and verification or interim verification without an audit decision by the Commissioner of Energy and Environmental Protection, shall preclude said commissioner from taking any appropriate action, including, but not limited to, any action to require remediation of the property by the eligible party or, as applicable, to its successor, if said commissioner determines that:
(A) The successful audit closure, no audit letter, or the expiration of one hundred eighty days, plus any additional time permitted pursuant to subparagraph (B) of subdivision (9) of subsection (j) of this section, after the submittal of the remedial action report and verification or interim verification without an audit decision by the Commissioner of Energy and Environmental Protection was based on information provided by the person submitting such remedial action report and verification or interim verification that the Commissioner of Energy and Environmental Protection can show that such person knew, or had reason to know, was false or misleading, and, in the case of the successor to an applicant, that such successor was aware or had reason to know that such information was false or misleading;
(B) New information confirms the existence of previously unknown contamination that resulted from a release that occurred before the date that an application has been accepted into the brownfield remediation and revitalization program;
(C) The eligible party who received the successful audit closure or no audit letter or where one hundred eighty days, plus any additional time permitted pursuant to subparagraph (B) of subdivision (9) of subsection (j) of this section, lapsed without an audit decision by the Commissioner of Energy and Environmental Protection has materially failed to complete the remedial action required by the brownfield investigation plan and remediation schedule or to carry out or comply with monitoring, maintenance or operating requirements pertinent to a remedial action including the requirements of any environmental land use restriction; or
(D) The threat to human health or the environment is increased beyond an acceptable level due to substantial changes in exposure conditions at such property, including, but not limited to, a change from nonresidential to residential use of such property.
(5) If an eligible party who has been accepted into the brownfield remediation and revitalization program conveys or otherwise transfers all or part of its ownership interest in the subject property at any time before the issuance of a successful audit closure or no audit letter or the expiration of one hundred eighty days, plus any additional time permitted pursuant to subparagraph (B) of subdivision (9) of subsection (j) of this section, after the submittal of the remedial action report and verification or interim verification without an audit decision by the Commissioner of Energy and Environmental Protection, the eligible party conveying or otherwise transferring its ownership interest shall not be liable to the state or any person, for the portion of the property transferred, for (A) costs incurred in the remediation of, equitable relief relating to, or damages resulting from the release of regulated substances addressed in the brownfield investigation plan and remediation schedule, and (B) historical impacts off the eligible property as a whole, including air deposition, waste disposal, impacts to sediments and natural resource damages, provided the eligible party complied with its obligations under this section during the period when the eligible party held an ownership interest in the subject property. Nothing in this subsection shall provide any relief from liability such eligible party may have related to a release requiring action pursuant to the PCB regulations, or a release requiring action pursuant to the UST regulations.
(6) Upon the Commissioner of Energy and Environmental Protection's issuance of a successful audit closure letter or no audit letter for the entire eligible property originally accepted into the brownfield remediation and revitalization program, or after one hundred eighty days, plus any additional time permitted pursuant to subparagraph (B) of subdivision (9) of subsection (j) of this section, have passed since the submittal of a verification or interim verification and said commissioner has not audited the verification or interim verification, the immediate prior owner regardless of its own eligibility to participate in the comprehensive brownfield remediation and revitalization program shall have no liability to the state or any person for any future investigation and remediation of the release of any regulated substance at the eligible property addressed in the verification or interim verification, provided the immediate prior owner has complied with any legal obligation such owner had with respect to investigation and remediation of releases at and from the property, and provided further the immediate prior owner shall retain any and all liability such immediate prior owner would otherwise have for the investigation and remediation of the release of any regulated substance beyond the boundary of the eligible property. In any event, the immediate prior owner shall remain liable for (A) penalties or fines, if any, relating to the release of any regulated substance at or from the eligible property, (B) costs and expenses, if any, recoverable or reimbursable pursuant to sections 22a-134b, 22a-451 and 22a-452, and (C) obligations of the immediate prior owner as a certifying party on a Form III or IV submitted pursuant to sections 22a-134 to 22a-134e, inclusive.
(n) A person whose application to the brownfield remediation and revitalization program has been accepted by the commissioner or any subsequent eligible party whose application to the brownfield remediation and revitalization program has been accepted by the commissioner shall be exempt for filing as an establishment pursuant to sections 22a-134a to 22a-134d, inclusive, if such real property or prior business operations constitute an establishment. Nothing in this section shall be construed to alter any existing legal requirement applicable to any certifying party at a property under sections 22a-134 and 22a-134a to 22a-134e, inclusive.
(o) Notwithstanding the provisions of this section, eligible parties shall investigate and remediate, and remain subject to all applicable statutes and requirements, the extent of any new release that occurs during their ownership of the property.
(P.A. 11-80, S. 1; 11-141, S. 17; P.A. 12-183, S. 9; P.A. 13-308, S. 10; P.A. 17-214, S. 14; Sept. Sp. Sess. P.A. 20-9, S. 14; P.A. 22-68, S. 2.)
*Note: Section 1 of public act 09-230 is special in nature and therefore has not been codified but remains in full force and effect according to its terms.
History: P.A. 11-141 effective July 1, 2011; pursuant to P.A. 11-80, “Commissioner of Environmental Protection” and “Department of Environmental Protection” were changed editorially by the Revisors to “Commissioner of Energy and Environmental Protection” and “Department of Energy and Environmental Protection”, respectively, effective July 1, 2011; P.A. 12-183 amended Subsec. (a) by changing “five years” to “eight years” re project completion in Subdiv. (3) and redefining “municipality” in Subdiv. (10), amended Subsec. (b) by adding “approved” re nomination, amended Subsec. (c) by replacing “based on” with “taking into consideration” re admission to program, amended Subsec. (d) by adding “of properties” re nominations and adding provisions re acceptance and consideration for approval of nomination to program and re application subsequent to approval of nomination, amended Subsec. (e)(1) by adding reference to property transfer program and adding provision re properties not to be excluded from eligibility, amended Subsec. (g) by adding “or the contiguous property owner” and replacing reference to Site Characterization and Guidance Document with reference to prevailing standards and guidelines, amended Subsec. (h) by revising provisions re installment due dates and adding provisions re extension of such dates and re fee to be available for use by commissioner, amended Subsec. (i) by adding provision re eligible person to pay fee upon transfer of eligible property from municipality or economic development agency in Subdiv. (4) and deleting “not owned by the municipality” in Subdiv. (5), amended Subsec. (k)(2) by revising provisions re submission, initiation and completion dates, amended Subsec. (n)(1) by adding reference to Subsec. (h), and made technical changes, effective July 1, 2012; P.A. 13-308 deleted former Subsec. (a) re definitions, redesignated existing Subsecs. (b) to (p) as Subsecs. (a) to (o), amended redesignated Subsec. (a)(5) to designate existing provisions as Subparas. (A), (C) and (D), add Subpara. (B) re national priorities list of hazardous waste disposal sites and, in Subpara. (D), to replace “RCRA” with reference to federal Resource Conservation and Recovery Act of 1976, amended redesignated Subsec. (b) to add reference to P.A. 09-230, S. 1, and Sec. 13b-79o, amended redesignated Subsec. (h)(5) to add reference to Sec. 32-9p, and made technical and conforming changes, effective July 1, 2013; Sec. 32-9mm transferred to Sec. 32-769 in 2014; P.A. 17-214 amended Subsec. (f)(3) by adding “if requested by the commissioner”, amended Subsec. (i) by designating existing provisions re liability to state or person as Subdiv. (1) and adding Subdiv. (2) re conveyance of security interest in eligible property, substantially amended Subsec. (j) including by adding new Subdiv. (3) re party may complete investigation and remediation of portion of eligible property and submit verification, redesignating existing Subdivs. (3) to (8) as Subdivs. (4) to (9), amending redesignated Subdiv. (4) by adding “or a portion of an eligible property”, amending redesignated Subdiv. (6) by adding “for the eligible property or a portion of the eligible property” and adding reference to regulations, amending redesignated Subdiv. (7) by replacing “All” with “Copies of all”, amending redesignated Subdiv. (9) by adding “for the eligible property or a portion of the eligible property”, deleting provision re report to be signed and stamped by licensed environmental professional, and adding provisions re additional time permitted, amended Subsecs. (k) to (m) by adding “for the eligible property or a portion of the eligible property”, further amended Subsec. (m) by replacing “plume” with “release”, replacing “subject property” with “eligible property”, adding “originally accepted into the brownfield remediation and revitalization program”, adding provisions re payment of greater of fees in Subdiv. (1), adding provisions re additional time, replacing “the brownfield investigation plan and remediation schedule” with “such verification or interim verification”, and replacing “off-site impacts” with “impacts off the eligible property as a whole” in Subdiv. (2), adding provisions re additional time in Subdivs. (3) to (5), adding reference to portion of property transferred and replacing “off-site impacts” with “impacts off the eligible property as a whole” in Subdiv. (5), and adding provision re entire eligible property originally accepted into program in Subdiv. (6), and made technical and conforming changes, effective July 1, 2017; Sept. Sp. Sess. P.A. 20-9 amended Subsec. (j)(9)(C) by replacing “environmental land use restriction” with “environmental use restriction”, effective October 2, 2020; P.A. 22-68 amended Subsec. (a)(4) by replacing “purchaser's” with “applicant's” and adding provision re lease of property for a term not exceeding 5 years, amended Subsec. (c) to allow Connecticut brownfield land banks to nominate properties for participation in program, amended Subsec. (f) by adding provision re 2 year deadline to acquire title to designated property, amended Subsec. (g) by adding references to Connecticut brownfield land banks, amended Subsec. (i) by adding provision re requirement that applicant remain in compliance with program obligations, amended Subsec. (j)(9)(A) by making technical changes and amended Subsec. (m)(3) by adding references to Connecticut brownfield land banks.
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Sec. 32-770. Working group to examine remediation and development of brownfields in this state. Duties. Membership. Report. (a) There is established a working group to examine the remediation and development of brownfields in this state, including, but not limited to, the remediation scheme for such properties, permitting issues and liability issues, including those set forth by sections 22a-14 to 22a-20, inclusive. The working group shall also annually review the progress of the Special Contaminated Property Remediation and Insurance Fund established under section 22a-133t and make recommendations concerning said fund.
(b) The working group shall consist of the following members, each of whom shall have expertise related to brownfield redevelopment in environmental law, engineering, finance, development, consulting, insurance or another relevant field:
(1) Four appointed by the Governor;
(2) Two appointed by the president pro tempore of the Senate, one of whom shall represent the Connecticut Conference of Municipalities;
(3) Two appointed by the speaker of the House of Representatives, one of whom shall represent an environmental organization;
(4) One appointed by the majority leader of the Senate;
(5) One appointed by the majority leader of the House of Representatives;
(6) One appointed by the minority leader of the Senate;
(7) One appointed by the minority leader of the House of Representatives;
(8) The Commissioner of Economic and Community Development, or the commissioner's designee, who shall serve ex officio;
(9) The Commissioner of Energy and Environmental Protection, or the commissioner's designee, who shall serve ex officio;
(10) The Secretary of the Office of Policy and Management, or the secretary's designee, who shall serve ex officio; and
(11) The Commissioner of Public Health, or the commissioner's designee, who shall serve ex officio.
(c) Any member of the working group as of July 8, 2011, shall continue to serve and all new appointments to the working group shall be made no later than August 7, 2011. Any vacancy shall be filled by the appointing authority.
(d) The working group shall select chairpersons of the working group.
(e) On or before January 15, 2014, and annually thereafter, the working group shall report, in accordance with the provisions of section 11-4a, on its findings and recommendations to the Governor and the joint standing committees of the General Assembly having cognizance of matters relating to commerce and the environment.
(P.A. 10-135, S. 2; P.A. 11-141, S. 15; P.A. 12-183, S. 12; P.A. 13-299, S. 27; 13-308, S. 26.)
History: P.A. 10-135 effective June 8, 2010; P.A. 11-141 amended Subsec. (b) to increase membership from 11 to 13 with 2 additional appointments for the Governor, amended Subsec. (c) to add provision re members to continue to serve, amended Subsec. (d) to delete requirement that chairpersons be selected from among the appointed members, and amended Subsec. (e) to extend reporting requirement from January 15, 2011, to January 15, 2012, and add provisions requiring report to be submitted to the Governor and environment committee, effective July 8, 2011; P.A. 12-183 amended Subsec. (b)(9) to change “Commissioner of Environmental Protection” to “Commissioner of Energy and Environmental Protection”, and amended Subsec. (e) to extend reporting requirement from January 15, 2012, to January 15, 2013, effective June 15, 2012; P.A. 13-299 amended Subsec. (a) to add requirement that working group annually review and make recommendations re Special Contaminated Property Remediation and Insurance Fund, amended Subsec. (c) to make technical changes, amended Subsec. (d) to delete provision re chairpersons to schedule first meeting within 60 days, and amended Subsec. (e) to change reporting requirement from January 15, 2013, to January 15, 2014, and annually thereafter, effective July 1, 2013; P.A. 13-308 amended Subsec. (b) to delete reference to 13 members, increase the number of appointments for the Senate president pro tempore from 1 to 2, one of whom to represent the Connecticut Conference of Municipalities in Subdiv. (2), increase the number of appointments for the House speaker from 1 to 2, one of whom to represent an environmental organization in Subdiv. (3), add Subdiv. (11) re Commissioner of Public Health or designee to serve as ex-officio member and make technical changes, and amended Subsec. (e) to extend reporting requirement from January 15, 2013, to January 15, 2015, effective July 12, 2013.
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Sec. 32-771. Connecticut brownfield land banks. Application for certification. Annual report. Decertification. (a) Any Connecticut nonstock corporation may apply to the Commissioner of Economic and Community Development for certification as a Connecticut brownfield land bank by submitting to the commissioner, on forms provided by the commissioner, an application containing such information as the commissioner deems necessary, including, but not limited to:
(1) The certificate of incorporation and bylaws of the applicant;
(2) A list of the current officers and directors of the applicant;
(3) A proposed land banking agreement with one or more municipalities;
(4) Information concerning the financial and technical capability of the applicant to fulfill the purposes of a Connecticut brownfield land bank, as described in section 32-773; and
(5) A proposed business plan for such land bank.
(b) The commissioner may approve or reject any application for certification properly submitted in accordance with this section. In reviewing an application and determining whether to approve such application, the commissioner shall consider the following criteria:
(1) The financial and technical capabilities of the applicant to fulfill the purposes of a Connecticut brownfield land bank, as described in section 32-773;
(2) The relative economic condition of the municipalities the applicant intends to serve;
(3) The level of support for such applicant from municipalities;
(4) The quality of the applicant's business plan; and
(5) Such other criteria consistent with the purposes of this section and sections 32-772 to 32-775, inclusive, as the commissioner may establish.
(c) If the commissioner approves an application for certification as a Connecticut brownfield land bank, the commissioner shall issue a Connecticut brownfield land bank certificate to the successful applicant and such applicant shall be granted the rights, privileges and immunities provided under this section and sections 32-772 to 32-775, inclusive.
(d) Not later than January thirty-first, annually, each Connecticut brownfield land bank shall report to the commissioner on its activities for the preceding year and provide the commissioner any such information as the commissioner deems necessary, including, but not limited to: (1) An updated list of its current officers and directors; (2) an updated business plan; (3) a complete operating and financial statement; and (4) a copy of any land banking agreements entered into during the preceding year.
(e) The commissioner shall review the annual report of each Connecticut brownfield land bank and determine whether each land bank is in compliance with the provisions of subsection (d) of this section. If the commissioner determines that a Connecticut brownfield land bank is not in compliance with such provisions, the commissioner shall notify the officers of such land bank, in writing, that the commissioner shall decertify the land bank after the one-hundred-twentieth day after the date of mailing the notice unless such land bank submits a revised annual report that the commissioner determines is compliant with the provisions of subsection (d) of this section. The commissioner, at his or her discretion, may grant a sixty-day extension for such land bank to submit such revised annual report.
(f) Any Connecticut brownfield land bank that is decertified by the commissioner shall not enter into any additional land banking agreement. Decertification of a Connecticut brownfield land bank shall not terminate the rights or obligations of such land bank under this section and sections 32-772 to 32-775, inclusive with respect to any property acquired or land banking agreement entered into prior to the date of decertification. Any Connecticut brownfield land bank that is decertified by the commissioner may apply for re-certification under subsection (a) of this section.
(P.A. 17-214, S. 2.)
History: P.A. 17-214 effective July 1, 2017.
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Sec. 32-772. Board of directors. (a) The powers of a Connecticut brownfield land bank shall be vested in and exercised by a board of directors that shall consist of not less than five and not more than eleven members, each with knowledge and expertise in matters related to the purposes and activities of a Connecticut brownfield land bank, as established in section 32-773. The board shall elect from its members a chairperson and such other officers as it deems necessary and shall adopt such bylaws and procedures it deems necessary to carry out its functions. The board may establish committees and subcommittees as necessary to conduct its business.
(b) Notwithstanding any provision of the general statutes, any public officer shall be eligible to serve as a member of the board of directors and the acceptance of the appointment shall neither terminate nor impair such public office. For purposes of this section, “public officer” means a person who is elected or appointed to any state or municipal office. Any state or municipal employee shall be eligible to serve as a board member.
(c) Members of the board of directors shall have the power to organize and reorganize the executive, administrative, clerical and other departments of a Connecticut brownfield land bank and to fix the duties, powers and compensation of all employees, agents and consultants of a Connecticut brownfield land bank.
(d) Board members shall serve without compensation, provided each board member shall be entitled to reimbursement for such member's actual and necessary expenses incurred during the performance of such member's official duties.
(e) Members of the board of directors shall not be liable personally on the loans or other obligations or environmental liabilities of the Connecticut brownfield land bank, and the rights of creditors shall be solely against such land bank.
(P.A. 17-214, S. 3.)
History: P.A. 17-214 effective July 1, 2017.
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Sec. 32-773. Purposes. Powers. (a) The purposes of a Connecticut brownfield land bank shall be to (1) acquire, retain, remediate and sell brownfields in the state on behalf of municipalities pursuant to land banking agreements with such municipalities, (2) educate government officials, community leaders, economic development agencies and nonprofit organizations on best practices for redeveloping brownfields, and (3) engage in all other activities in accordance with sections 32-771 to 32-775, inclusive. In addition to those powers, rights, privileges and immunities granted under chapter 602, a Connecticut brownfield land bank is authorized and empowered to do the following in furtherance of its purposes:
(A) Enter into land banking agreements with municipalities for the acquisition, retention, remediation and sale of real property within such municipalities on behalf of such municipalities.
(B) Enter into contracts and agreements with municipalities for staffing services to be provided to the Connecticut brownfield land bank by such municipalities, or agencies or departments thereof, or for a Connecticut brownfield land bank to provide such staffing services to such municipalities, or agencies or departments thereof in relation to the duties of such land bank.
(C) Obtain grant funds or borrow from private lenders, municipalities, the state or the federal government, as may be necessary, for the operation of such Connecticut brownfield land bank.
(D) Procure insurance or guarantees from the state or federal government of the payments of any debts, or parts thereof, incurred by such Connecticut brownfield land bank, and to pay premiums in connection therewith.
(E) Do all other things necessary or convenient to achieve the purposes of such Connecticut brownfield land bank and comply with any law relating to the purposes and responsibilities of such land bank.
(F) Acquire real property, as described in subsection (b) of section 32-775, by purchase contracts, lease purchase agreements, installment sales contracts, land contracts and foreclosure of municipal tax liens. A Connecticut brownfield land bank may accept transfers of real property from municipalities upon such terms and conditions as agreed to by the brownfield land bank and the municipality. Notwithstanding any provision of the general statutes or of any special act, municipal charter or home rule ordinance, any municipality may transfer and convey to a Connecticut brownfield land bank real property and interests in real property located in the municipality on such terms and conditions and according to such procedures as determined by the municipality.
(b) A Connecticut brownfield land bank shall neither possess nor exercise the power of eminent domain.
(P.A. 17-214, S. 4.)
History: P.A. 17-214 effective July 1, 2017.
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Sec. 32-774. Tax exemption. The exercise of the powers granted by sections 32-771 to 32-775, inclusive, shall be in all respects for the benefit of the people of the state, for the increase of their commerce, welfare and prosperity, and as the exercise of such powers shall constitute the performance of an essential public function, a Connecticut brownfield land bank shall not be required to pay any taxes or assessments upon or in respect of any revenues or property received, acquired, transferred or used by such Connecticut brownfield land bank, or upon or in respect of the income from such revenues or property.
(P.A. 17-214, S. 5.)
History: P.A. 17-214 effective July 1, 2017.
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Sec. 32-775. Obligations re acquisition, ownership and transfer of real property. (a) A Connecticut brownfield land bank shall hold in its own name all real property acquired by such land bank irrespective of the identity of the transferor of such property.
(b) A Connecticut brownfield land bank shall acquire only brownfield sites and other real property, located adjacent or in close proximity to brownfield sites to be acquired, that are identified in a land banking agreement between such Connecticut brownfield land bank and the municipality in which such properties are located.
(c) A Connecticut brownfield land bank shall maintain and make available for public review and inspection an inventory of all real property held by such land bank.
(d) A Connecticut brownfield land bank shall determine and set forth in policies and procedures the general terms and conditions for consideration to be received by such land bank for the transfer to such land bank of real property and interests in real property, which consideration may take the form of monetary payments and secured financial obligations, covenants and conditions related to the present and future use of such real property, contractual commitments of the transferee, and such other forms of consideration as determined by the board of directors to be in the best interest of such land bank.
(e) A Connecticut brownfield land bank may convey, exchange, sell, transfer, lease as lessee, grant, release and demise, pledge and hypothecate any and all interests in, upon or to real property of the brownfield land bank, provided such land bank may only convey, exchange, transfer or sell real property with the approval of the municipality in which such real property is located pursuant to the terms of a land banking agreement entered into with such municipality.
(P.A. 17-214, S. 6.)
History: P.A. 17-214 effective July 1, 2017.
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Sec. 32-776. 7/7 Program. Regulations. Section 32-776 is repealed, effective June 26, 2019.
(June Sp. Sess. P.A. 17-2, S. 168; P.A. 19-117, S. 397.)
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