2018 Environmental Legislative Update No. 5

by Pullman & Comley, LLC
Contact

Pullman & Comley, LLC

Welcome to our Environmental Legislative Updates.

Throughout Connecticut’s legislative session, these updates highlight developments concerning environmental law and policy. The author prepares updates as Legislative Liaison of the Connecticut Bar Association’s Environmental Law Section. Pullman & Comley is pleased to offer them in this format to a wider audience.

As the session proceeds, early updates will alert readers to proposals on a broad range of issues concerning the environment, narrowing focus over time on bills that continue to progress, and concluding with a post-session wrap-up of bills that pass as well as noteworthy also-rans. Along the way they’ll summarize and challenge arguments pro and con, examine the policy and science behind proposals, and occasionally cast a side glance at the vicissitudes and vagaries of the process. The views expressed will be the author’s own, not necessarily those of Pullman & Comley LLC.

********************************************

As the 2018 legislative session careens toward its close on May 9, we bring you an example of that late-session creature, a long-pending bill on one subject that through amendment becomes a bill on multiple subjects. In this instance, however, the component parts remain generally within the brownfield area.

The original bill was SB 268 (File Copy 389) to extend the term limits for loans under the Targeted Brownfield Development Loan Program from twenty to thirty years. That much was untouched by the amendment. So if your Senator has been promising to vote for term limits, mission accomplished.

The amendment tacked on six new sections numbered 501-506. The OLR analysis of the bill as amended and passed is here. The most brownfield-y of the new provisions are Sections 504 and 505.

504 would amend Conn. Gen. Stat. §32-763, the remedial action and redevelopment municipal grant program within DECD, to provide that if a grant recipient is not subject to the Transfer Act, it must enter a remediation program under Sections 22a-133x, 22a-133y, 32-768 or 32-769. “Getting with the program” in that sense would not be required if the grant is only for abatement of building materials, solely for site assessment, or is for a municipality, brownfield land bank, etc. to develop a comprehensive plan for multiple sites. This change would conform the grant program to the brownfield loan provisions that already contain a similar requirement.

505 would amend Conn. Gen. Stat. §12-81r to allow municipalities to enter into tax abatement arrangements with prospective owners who commit to undertake site assessment, demolition and remediation. As it stands, the statute permits such arrangements only with owners, so the change would smooth the way for prospective purchasers. The prospective owner would also have to sign up under one of the same non-Transfer-Act remediation statutes specified in Section 504.

The first three sections of the amendment, 501-503, cover the “Notice of Activity and Use Limitation” (NAUL) mechanism originally enacted as Section 33 of PA 13-308. Yes, you read that right – five years ago. We’ll devote space to this because even though the subject matter of these sections has been in and out of the last few legislative sessions, these versions are appearing in this form for the first time this session in this late amendment. Update that “how laws are made” flow chart again.

Since the NAUL statute was enacted, the objective of a notice mechanism less cumbersome than the full Environmental Land Use Restriction has remained unrealized. Implementation has been dogged by lingering concern about how a use restriction can coexist with the rights of prior interest holders that could technically take over a property and not be bound by the restriction. The ELUR mechanism solves that problem by structuring the restriction as a recorded interest in land (easement) in favor of the State, requiring subordinations from anyone holding a potentially conflicting interest. But the subordination requirement often impedes site closures that depend on use restrictions to achieve compliance.

The NAUL was originally conceived as a notice device that would not require subordination, on the theory that where site conditions are less complex, risk can be adequately addressed by assuring subsequent owners and occupants simply become aware of protective use limitations. (The idea wasn’t original; EPA Superfund guidance classifies nonproprietary “deed notices” as a distinct category of institutional control.) But this logic did not prevail over concern with potentially conflicting uses: the version now on the books says NAULs are not available at all where a prior interest holder can theoretically conduct activity conflicting with the use limitation, or has an interest that allows for intrusion into polluted soil. The ironic result: a mechanism conceived to ameliorate  the challenge of subordinating prior interests became entirely unavailable when any such interests were present.

Section 503 of the Senate Amendment makes a useful incremental improvement by permitting use of an NAUL if every holder of an interest that could interfere with the “conditions or purposes of such notice” agrees by signing the NAUL to “subject” that interest to it. The signing requirement is cross-referenced in Section 502. Section 501 adds a non-substantive cross-reference to the NAUL concept and the minor but important substantive concept that an NAUL may require as well as prohibit activities.

Section 502 makes another helpful change: it eliminates the reference to interests that allow for intrusion into polluted soil. So such interests would not be disqualifying, and would not require clearance by means of the interest holder’s signature on the NAUL.

These changes move in the direction of making the NAUL a more useful alternative to the ELUR, though still less than fully self-implementing. But if the NAUL is “ELUR Lite,” the signing requirement of Sections 502 and 503 is “Subordination Lite.” Those who’ve had difficulty getting such holders to agree to subordination may have their own ideas about how they’ll fare asking for autographs.

Completing the SB 268 amendment grab bag, the award for most attenuated brownfield nexus goes to Section 506: it would exempt certain programs “for the construction of nuclear submarines” from environmental impact evaluation requirements, if such programs are rated “DX” under the Defense Department’s Defense Priorities and Allocations System. But if they need an ELUR, they’ll still need to get subordinations. First things first.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pullman & Comley, LLC | Attorney Advertising

Written by:

Pullman & Comley, LLC
Contact
more
less

Pullman & Comley, LLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.