2023 Connecticut General Statutes › Title 22a - Environmental Protection › Chapter 445 - Hazardous Waste › Section 22a-133bb. - Covenant not to sue prospective purchasers or owners of contaminated real property. Approval of remediation plan by licensed environmental professional.

(a) The Commissioner of Energy and Environmental Protection shall enter into a covenant not to sue with any prospective purchaser or owner of contaminated real property provided (1) the owner or purchaser certifies that there is a detailed written plan for remediation of the property, in accordance with standards adopted by said commissioner pursuant to section 22a-133k, approved by the Commissioner of Energy and Environmental Protection, which plan shall be incorporated by reference in the covenant, (2) the Commissioner of Energy and Environmental Protection has approved a final remedial action report for such property and the person requesting a covenant certifies that there has been no discharge after the date of such approval, (3) a detailed written plan for remediation of the property in accordance with such regulations has been approved by a licensed environmental professional, which plan shall be incorporated by reference in the covenant and such plan shall be implemented pursuant to section 22a-133x, 22a-133y or 22a-134a, (4) a licensed environmental professional has verified, pursuant to section 22a-133x or 22a-134a, that the property has been remediated in accordance with such standards and the person requesting a covenant certifies that there has been no discharge after the date of such approval, or (5) a licensed environmental professional has approved a final remedial action report pursuant to section 22a-133y and the person requesting a covenant certifies that there has been no discharge after the date of such approval. No licensed environmental professional shall approve a detailed written plan for remediation or a final remedial action report unless such professional certifies that the property has been investigated in a thorough manner and the licensed environmental professional has investigated the property using reasonable care and diligence applying the knowledge and skill ordinarily required of a professional in good standing practicing in the field at the time the investigation was undertaken.
(b) No such covenant may be entered into unless such owner or purchaser has certified to the commissioner that such owner or purchaser (1) did not establish or create a facility or condition at or on such property which reasonably can be expected to create a source of pollution to the waters of the state for purposes of section 22a-432; (2) 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 to be conveyed or financed; and (3) will redevelop the property for productive use or continue productive use of such property.
(c) The commissioner shall enter into a covenant not to sue with any lending institution to whom such owner conveys a security interest in such property provided such institution has certified to the commissioner that such institution did not establish or create a facility or condition at or on such property which reasonably can be expected to create a source of pollution to the waters of the state for purposes of section 22a-432 and has not maintained any such facility or condition at such property for purposes of said section, and such institution is not responsible pursuant to any other provision of the general statutes for any pollution or source of pollution on the property. Any covenant issued to a lending institution under this section shall be effective with respect to any lending institution which is a successor in interest to the original lending institution provided such successor lending institution did not establish or create a facility or condition at or on such property which reasonably can be expected to create a source of pollution to the waters of the state for purposes of section 22a-432 and has not maintained any such facility or condition at such property for purposes of said section, and such institution is not responsible pursuant to any other provision of the general statutes for any pollution or source of pollution on the property.
(d) Any covenant entered into under this section shall release claims said commissioner may have which are related to pollution or contamination on or emanating from the property, which contamination resulted from a discharge, spillage, uncontrolled loss, seepage or filtration on such property prior to the effective date of the covenant. Such covenant shall provide that the commissioner will not take any action to require remediation of the parcel or any other action related to such discharge, spillage, uncontrolled loss, seepage or filtration unless (1) such property is not remediated in accordance with the detailed written plan submitted to the commissioner and incorporated by reference in such covenant, (2) prior to completion of remediation in accordance with such plan, the commissioner finds that there is substantial noncompliance with such plan and there has not been a good faith effort to substantially comply therewith, (3) remediation of the property in accordance with such plan did not comply with standards adopted by the commissioner pursuant to section 22a-133k which were in effect as of the date of the covenant, or (4) if required by the standards adopted by the commissioner pursuant to section 22a-133k, an environmental use restriction has not been recorded in accordance with section 22a-133o or if the provisions of an environmental use restriction were not complied with.
(e) A covenant not to sue issued under this section may provide for continued monitoring in accordance with such standards and, if further remediation is necessary based upon the results of such monitoring, that further action will be taken to remediate the property in accordance with such standards.
(f) A covenant not to sue issued under this section shall not preclude the commissioner from taking any appropriate action, including, but not limited to, any action to require remediation of the property, if he determines that (1) the covenant not to sue was based on information provided by the person seeking the covenant which information such person knew, or had reason to know, was false or misleading, (2) new information confirms the existence of previously unknown contamination which resulted from a discharge, spillage, uncontrolled loss, seepage or filtration which occurred prior to the effective date of the covenant, or (3) 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.
(g) The commissioner shall issue the covenant not later than forty-five days after the date he receives the certifications and all other documents required under this section.
(P.A. 96-113, S. 11, 17; P.A. 98-253, S. 5; P.A. 11-80, S. 1; Sept. Sp. Sess. P.A. 20-9, S. 12.)
History: P.A. 96-113 effective May 24, 1996; P.A. 98-253 added provisions re approval of remediation plans by licensed environmental professionals, authorized and added provisions re covenants with prospective purchasers under this section, designated portions of existing Subsec. (a) as Subsecs. (b) and (c), redesignated existing Subsecs. (b), (d) and (e) as Subsecs. (d), (e) and (f), deleted former Subsec. (c) re payment of review fee, and added new Subsec. (g) re a time limit for issuance of the covenant; pursuant to P.A. 11-80, “Commissioner of Environmental Protection” was changed editorially by the Revisors to “Commissioner of Energy and Environmental Protection” in Subsec. (a), effective July 1, 2011; Sept. Sp. Sess. P.A. 20-9 amended Subsec. (d)(4) by changing “environmental land use restriction” to “environmental use restriction”, effective October 2, 2020.