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Substitute House Bill No. 5347

PUBLIC ACT NO. 96-113

AN ACT CONCERNING THE HAZARDOUS WASTE ESTABLISHMENT TRANSFER ACT AND REMEDIATION OF CONTAMINATED PROPERTY.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 22a-134 of the general statutes, as amended by section 1 of public act 95-183, is repealed and the following is substituted in lieu thereof:

For the purposes of this section and sections 22a-134a to 22a-134d, inclusive AS AMENDED BY THIS ACT: (1) "Transfer of establishment" means any transaction or proceeding through which an establishment undergoes a change in ownership, but does not mean (A) conveyance or extinguishment of an easement, (B) conveyance of property through a judicial foreclosure, (C) conveyance of a deed in lieu of foreclosure to an institutional lender, including, but not limited to, a banking institution, (D) conveyance of a security interest including, without limitation, a mortgage, (E) renewal of a lease, (F) conveyance, assignment or termination of a lease for a period less than twenty-five years from the date of such conveyance, assignment or termination, including options or extensions of such period, (G) any change in ownership approved by the Probate Court, (H) conveyance of title to a surviving joint tenant, or to a trustee, executor, or administrator under the terms of a testamentary trust or will, or by intestate succession, (I) corporate reorganization not substantially affecting the ownership of the establishment, including, but not limited to, stock dividend distributions or stock distributions in connection with a merger, (J) the original issuance of stock or other securities of an entity which owns or operates an establishment, (K) the transfer of stock, securities or other ownership interests representing less than a majority of the voting power of the entity that owns or operates the establishment, (L) any conveyance of an interest in an establishment where the transferor is the sibling, spouse, child, parent, grandparent, child of a sibling or sibling of a parent of the transferee, [and] (M) any conveyance of a portion of a parcel upon which portion no establishment is or has been located and upon which there has not occurred a discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste, provided either the area of such portion is not greater than fifty per cent of the area of such parcel or written notice of such proposed conveyance AND AN ENVIRONMENTAL CONDITION ASSESSMENT FORM FOR SUCH PARCEL is provided to the commissioner sixty days prior to such conveyance OR (N) CONVEYANCE OF A SERVICE STATION; (2) "Commissioner" means the Commissioner of Environmental Protection or his designated agent; (3) "Establishment" means any real property at which or any business operation from which (A) on or after November 19, 1980, there was generated, except as the result of remediation activities, more than one hundred kilograms of hazardous waste in any one month [or which] (B) HAZARDOUS WASTE GENERATED BY ANOTHER PERSON OR MUNICIPALITY WAS recycled, reclaimed, reused, stored, handled, treated, transported or disposed of [hazardous waste generated by another person or municipality, (B)] (C) the process of dry cleaning was conducted on or after May 1, 1967, [(C)] (D) furniture stripping was conducted on or after May 1, 1967, or [(D)] (E) a vehicle body repair shop or vehicle painting shop is or was located on or after May 1, 1967; (4) "Hazardous waste" means any waste which is (A) hazardous waste identified in accordance with Section 3001 of the federal Resource Conservation and Recovery Act of 1976, 42 USC 6901 et seq., (B) hazardous waste identified by regulations adopted by the Commissioner of Environmental Protection, or (C) polychlorinated biphenyls in concentrations greater than fifty parts per million except that sewage, sewage sludge and lead paint abatement wastes shall not be considered to be hazardous waste for the purposes of this section and sections 22a-134a to 22a-134d, inclusive; (5) "Service station" means a retail operation involving the resale of motor vehicle fuel including, but not limited to, gasoline, diesel fuel and kerosene and which operation does not otherwise meet the definition of an establishment; [(6) "Transfer of a service station" means any transaction or proceeding through which a service station undergoes a change in ownership, but does not mean (A) conveyance or extinguishment of an easement, (B) conveyance of property through a judicial foreclosure, (C) conveyance of a deed in lieu of foreclosure to an institutional lender including, without limitation, a banking institution, (D) conveyance of a security interest including, without limitation, a mortgage, (E) renewal of a lease, (F) conveyance, assignment or termination of a lease for a period less than twenty-five years from the date of such conveyance, assignment or termination, including options or extensions of such period, (G) any change in ownership approved by the Probate Court, (H) conveyance of title to a surviving joint tenant, or to a trustee, executor, or administrator under the terms of a testamentary trust or will, or by intestate succession, (I) corporate reorganization not substantially affecting the ownership of the establishment, including, but not limited to, stock dividend distributions or stock distributions in connection with a merger, (J) the original issuance of stock or other securities of an entity which owns or operates a service station, (K) the transfer of stock, securities or other ownership interests representing less than a majority of the voting power of the entity that owns or operates the service station, (L) any conveyance of an interest in a service station where the transferor is the sibling, spouse, child, parent, grandparent, child of a sibling or sibling of a parent of the transferee, and (M) any conveyance of a portion of a parcel upon which portion no service station is or has been located and upon which there has not occurred a discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste provided either the area of such portion is not greater than fifty per cent of the area of such parcel or written notice of such proposed conveyance is provided to the commissioner sixty days prior to such conveyance;] [(7)] (6) "Certifying party" eans a person associated with the transfer of an establishment who signs a Form III or Form IV and who agrees to investigate and remediate the parcel; [(8)(7) "Party associated with the transfer of an establishment" means (A) the owner of the establishment, (B) the transferor, transferee, lender, guarantor or indemnitor, [or] (C) the business entity which operates OR OPERATED the establishment OR (D) THE STATE; [(9)] (8) "Remediation standards" means regulations adopted by the commissioner pursuant to section 22a-133k, AS AMENDED; [(10)](9) "Parcel" means piece, parcel or tract of land which constitutes an establishment, as defined in subdivision (3) of this section, or on which is or was located any business operation which constitutes an establishment; [(11)] (10) "Form I" means a written declaration by the transferor of an establishment on a form prescribed and provided by the commissioner that no discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste has occurred at the parcel; [(12)] (11) "Form II" means a written declaration by the transferor of an establishment on a form prescribed and provided by the commissioner that (A) any discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste which has occurred at the parcel has been remediated and that the remediation has been approved in writing by the commissioner or has been verified pursuant to section 22a-134a AS AMENDED or SECTION 3 OF PUBLIC ACT 95-183 IN A WRITING ATTACHED TO SUCH FORM by a licensed environmental professional to have been performed in accordance with the remediation standards OR (B) THE COMMISSIONER HAS DETERMINED IN WRITING OR A LICENSED ENVIRONMENTAL PROFESSIONAL HAS VERIFIED PURSUANT TO SECTION 22a-134a, AS AMENDED, OR SECTION 3 OF PUBLIC ACT 95-183 IN A WRITING ATTACHED TO THE FORM THAT NO REMEDIATION IS NECESSARY TO ACHIEVE COMPLIANCE WITH THE REMEDIATION STANDARDS; [(13)] (12) "Form III" means a written certification signed by a certifying party on a form prescribed and provided by the commissioner, which certification states that (A) a discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste has occurred at the parcel or the environmental conditions at the parcel are unknown, and (B) that the person signing the certification agrees to investigate the parcel and to remediate the parcel in accordance with the remediation standards; [(14)] (13) "Form IV" means a written certification signed by one or more certifying parties on a form prescribed and provided by the commissioner, which certification states AND IS ACCOMPANIED BY DOCUMENTATION DEMONSTRATING that (A) there has been a discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste on the parcel, and (B) [that] all actions to remediate the site have been taken in accordance with the remediation standards except postremediation monitoring or natural attenuation monitoring, and (C) [that] the person or persons signing the certification agree, in accordance with the representations made in the form, to conduct postremediation monitoring or natural attenuation monitoring in accordance with the remediation standards and if further remediation is necessary based upon the results of such monitoring, to take further action to remediate the parcel in accordance with the remediation standards; [(15)] (14) "Person" means person, as defined in section 22a-2 AS AMENDED; [(16)] (15) "Remediate" means to contain, remove or abate pollution, potential sources of pollution and substances in soil or sediment which pose an unacceptable risk to human health or the environment and includes, but is not limited to, the reduction of pollution by natural attenuation; [(17)] (16) "Licensed environmental professional" means an environmental professional licensed pursuant to section 22a-133x; [(18)] (17) "Environmental condition assessment form" means a form prescribed and provided by the commissioner and prepared by (A) the certifying party under sections 22a-134 to 22a-134e, inclusive, AS AMENDED or (B) the owner of the property under section 22a-133z which form describes the environmental conditions at the parcel; [(19)] (18) "Pollution" means pollution, as defined in section 22a-423; [(20)] (19) "Verification" means the rendering of [an] A WRITTEN opinion by a licensed environmental professional that an investigation has been performed in accordance with prevailing standards and guidelines and that the parcel has been remediated in accordance with the remediation standards (20) "VEHICLE" MEANS AN AUTOMOBILE, BUS, TRUCK OR TRUCK TRACTOR, BUT DOES NOT MEAN AN AIRCRAFT, BOAT, RAILROAD CAR OR ENGINE, OR FARM TRACTOR.

Sec. 2. Subsection (d) of section 22a-134a of the general statutes, as amended by section 2 of public act 95-183, is repealed and the following is substituted in lieu thereof:

(d) Prior to transferring an establishment, the transferor shall submit to the transferee a Form I or a Form II and, no later than ten days after the transfer, shall submit a copy of such Form I or Form II to the commissioner. If the transferor is unable to submit a Form I or a Form II to the transferee, the certifying party shall, prior to the transfer, prepare and sign a Form III or Form IV, and the transferor shall submit a copy of such Form III or Form IV to THE TRANSFEREE AND, NO LATER THAN TEN DAYS AFTER THE TRANSFER, SHALL SUBMIT A COPY OF SUCH FORM III OR FORM IV TO the commissioner [no later than ten days after the transfer.]

Sec. 3. Subsection (a) of section 22a-134e of the general statutes, as amended by section 8 of public act 95-183 and section 11 of public act 95-190, is repealed and the following is substituted in lieu thereof:

(a) As used in this section, "cost of remediation" shall include TOTAL costs related to THE COMPLETE investigation of pollution on-site and off-site, evaluation of remediation alternatives, design and implementation of approved remediation, operation and maintenance costs for the remediation and postremediation monitoring.

Sec. 4. Subsections (m) and (n) of section 22a-134e of the general statutes, as amended by section 8 of public act 95-183 and section 11 of public act 95-190, are repealed and the following is substituted in lieu thereof:

(m) On and after October 1, 1995, [an] THE FEE FOR FILING A FORM III OR FORM IV SHALL BE DUE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE: AN initial fee of two thousand dollars shall be submitted to the commissioner with the filing of a Form III or Form IV. If a licensed environmental professional verifies the remediation of the parcel and the commissioner has not notified the certifying party that the commissioner's written approval of the remediation is required, no [subsequent] ADDITIONAL fee shall be due. If the commissioner notifies the certifying party that the commissioner's written approval of the remediation is required, [any subsequent fee shall be due thirty days after the commissioner issues] THE BALANCE OF THE TOTAL FEE SHALL BE DUE PRIOR TO THE COMMISSIONER'S ISSUANCE OF his final approval of the remediation.

(n) [The subsequent] ON AND AFTER OCTOBER 1, 1995, THE TOTAL fee for FILING a Form III shall be as follows [and the subsequent fee for a Form IV shall be fifty per cent of the following amounts:] (1) [Twenty-one] TWENTY-THREE thousand dollars if the TOTAL cost of remediation is equal to or greater than one million dollars; (2) [eighteen] TWENTY thousand dollars if the TOTAL cost of remediation is equal to or greater than five hundred thousand dollars but less than one million dollars; (3) [twelve] FOURTEEN thousand dollars if the TOTAL cost of remediation is equal to or greater than one hundred thousand dollars but less than five hundred thousand dollars; (4) [two thousand five hundred] FOUR THOUSAND FIVE HUNDRED dollars if the TOTAL cost of remediation is equal to or greater than fifty thousand dollars but less than one hundred thousand dollars; (5) [one] THREE thousand dollars if the TOTAL cost of remediation is equal to or greater than twenty-five thousand dollars but less than fifty thousand dollars; and (6) [no subsequent fee] TWO THOUSAND DOLLARS if the TOTAL cost of remediation is less than twenty-five thousand dollars.

(o) ON AND AFTER OCTOBER 1, 1995, THE TOTAL FEE FOR FILING A FORM IV SHALL BE AS FOLLOWS: (1) ELEVEN THOUSAND FIVE HUNDRED DOLLARS IF THE TOTAL COST OF REMEDIATION IS EQUAL TO OR GREATER THAN ONE MILLION DOLLARS; (2) TEN THOUSAND DOLLARS IF THE TOTAL COST OF REMEDIATION IS EQUAL TO OR GREATER THAN FIVE HUNDRED THOUSAND DOLLARS BUT LESS THAN ONE MILLION DOLLARS; (3) SEVEN THOUSAND DOLLARS IF THE TOTAL COST OF REMEDIATION IS GREATER THAN OR EQUAL TO ONE HUNDRED THOUSAND DOLLARS BUT LESS THAN FIVE HUNDRED THOUSAND DOLLARS; (4) TWO THOUSAND TWO HUNDRED FIFTY DOLLARS IF THE TOTAL COST OF REMEDIATION IS EQUAL TO OR GREATER THAN FIFTY THOUSAND DOLLARS BUT LESS THAN ONE HUNDRED THOUSAND DOLLARS; AND (5) TWO THOUSAND DOLLARS IF THE TOTAL COST OF REMEDIATION IS LESS THAN FIFTY THOUSAND DOLLARS.

[(n)] (p) Notwithstanding any other provision of this section, the fee for filing a Form II or Form IV for a parcel for which the commissioner has issued a written approval of a remediation under subsection (c) of section 22a-133y within three years of the date of the filing of the form shall be the [subsequent] TOTAL fee for a Form III specified in subsection [(m)] (n) of this section and shall be due upon the filing of the Form II or Form IV.

Sec. 5. Subsection (e) of section 22a-134e of the general statutes, as amended by section 8 of public act 95-183 and section 11 of public act 95-190, is repealed and the following is substituted in lieu thereof:

(e) If a Form II is filed after July 1, 1990, and before October 1, 1995, and within three years following completion of remedial measures as approved by the Commissioner of Environmental Protection [pursuant to an administrative order,] the fee for such transfer shall be the fee specified in subsection (c) of this section.

Sec. 6. Subsection (k) of section 22a-134a of the general statutes, as amended by section 2 of public act 95-183, is repealed and the following is substituted in lieu thereof:

(k) The commissioner may issue an order to any person who FAILS TO COMPLY WITH ANY PROVISION OF SECTIONS 22a-134 TO 22a-134e, INCLUSIVE, AS AMENDED BY THIS ACT, INCLUDING, BUT NOT LIMITED TO, ANY PERSON WHO improperly files a Form I or Form II or to any person who fails to carry out any activities to which that person agreed in a Form III or Form IV or may request that the Attorney General bring an action in the superior court for the judicial district of Hartford-New Britain to enjoin any person who FAILS TO COMPLY WITH ANY PROVISION OF SECTIONS 22a-134 TO 22a-134e, INCLUSIVE, AS AMENDED BY THIS ACT, INCLUDING, BUT NOT LIMITED TO, ANY PERSON WHO improperly files a Form I or Form II or the certifying party to a Form III or Form IV to take any actions necessary to prevent or abate any pollution at, or emanating from, the subject parcel. Any person to whom such an order is issued may appeal such order in accordance with the procedures set forth in sections 22a-436 and 22a-437.

Sec. 7. Subsection (a) of section 3 of public act 95-183 is repealed and the following is substituted in lieu thereof:

(a) Except as provided in section 2 of [house bill 6681 of the current session] PUBLIC ACT 95-190, a municipality, an owner of an establishment or an owner of property identified on the inventory of hazardous waste disposal sites maintained pursuant to section 22a-133c of the general statutes on the effective date of this act may, at any time, submit to the commissioner an environmental condition assessment form for such real property owned by such municipality or such owner and an initial review fee in accordance with subsection (e) of this section. Within thirty days of his receipt of such form, the commissioner shall notify the owner, in writing, whether or not review and written approval of any remedial action at such establishment or property by the commissioner will be required. The commissioner shall not process any such form submitted pursuant to this section unless such form is accompanied by the required initial review fee. FOR THE PURPOSES OF THIS SECTION, "MUNICIPALITY" MEANS ANY OF THE ONE HUNDRED SIXTY-NINE TOWNS OF THE STATE.

Sec. 8. Section 2 of public act 95-190 is amended by adding subsection (e) as follows:

(NEW) (e) Nothing in this section shall relieve any person of any obligation to comply with sections 22a-134 to 22a-134e, inclusive, as amended by this act.

Sec. 9. Section 22a-133o of the general statutes, as amended by section 2 of public act 95-169 and section 12 of public act 95-190, is repealed and the following is substituted in lieu thereof:

(a) An owner of land may execute and record an environmental use restriction under sections 22a-133n to 22a-133r, inclusive, AS AMENDED on the land records of the municipality in which such land is located if (1) the commissioner has adopted standards for the remediation of contaminated land pursuant to section 22a-133k AS AMENDED and adopted regulations pursuant to section 22a-133q, (2) the commissioner, or in the case of land for which remedial action was supervised under section 2 of [this act] PUBLIC ACT 95-190, a licensed environmental professional, determines, as evidenced by his signature on such restriction, that it is consistent with the purposes and requirements of sections 22a-133n to 22a-133r, inclusive, AS AMENDED and of such standards and regulations, and (3) such restriction will effectively protect public health and the environment from the hazards of pollution.

(b) No owner of land may record an environmental use restriction on the land records of the municipality in which such land is located unless he [submits evidence, to the satisfaction of the commissioner,] SIMULTANEOUSLY RECORDS DOCUMENTS WHICH DEMONSTRATE that each person holding an interest in such land or any part thereof, including without limitation each mortgagee, lessee, lienor, and encumbrancer, pursuant to which the holder of such interest irrevocably subordinates such interest to the environmental use restriction. An environmental use restriction shall run with land, shall bind the owner of the land and his successors and assigns, and shall be enforceable notwithstanding lack of privity of estate or contract or benefit to particular land.

AND SHALL SUBMIT TO THE COMMISSIONER A CERTIFICATE OF TITLE CERTIFYING THAT EACH INTEREST IN SUCH LAND OR ANY PART THEREOF IS IRREVOCABLY SUBORDINATED TO THE ENVIRONMENTAL USE RESTRICTION IN ACCORDANCE WITH SAID SUBSECTION (b).

(d) An owner of land with respect to which an environmental use restriction applies may be released, wholly or in part, from the limitations of such restriction only with the commissioner's written approval which shall be consistent with the regulations adopted pursuant to section 22a-133q and shall be recorded on the land records of the municipality in which such land is located. The commissioner shall not approve any such release unless the owner demonstrates that he has [cleaned up] REMEDIATED the land, or such portion thereof as would be affected by the release, in accordance with the standards established pursuant to section 22a-133k AS AMENDED.

(e) An environmental use restriction shall survive foreclosure of a mortgage, lien or other encumbrance.

*Sec. 10. (NEW) (a) The Commissioner of Environmental Protection may enter into a covenant not to sue with any prospective purchaser of contaminated real property provided (1) a detailed written plan has been submitted for remediation of the property in accordance with standards adopted by said commissioner pursuant to section 22a-133k of the general statutes, as amended, which plan shall be incorporated by reference in the covenant or (2) the Commissioner of Environmental Protection has approved a final remedial action report for such property. No such covenant may be entered into unless such purchaser has demonstrated to the satisfaction of the commissioner that such purchaser (A) 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 of the general statutes, as amended, and has not maintained any such facility or condition at such property for purposes of said section 22a-432, and such purchaser is not responsible pursuant to any other provision of the general statutes for any pollution or source of pollution on the property; (B) 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 purchaser's interest in such property is to be conveyed or financed; and (C) will redevelop the property for productive use or continue productive use of such property provided the commissioner determines that the covenant not to sue is in the public interest. Upon the request of a successor of an original holder of a covenant issued under this section, the commissioner shall enter into such covenant with such successor if such successor certifies to the satisfaction of the commissioner that such successor complies with subparagraphs (A), (B) and (C) of this subsection. The commissioner may enter into a covenant not to sue with any lending institution to whom a prospective purchaser of contaminated real property conveys a security interest in such property provided such institution has demonstrated to the satisfaction of 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 of the general statutes, as amended, and has not maintained any such facility or condition at such property for purposes of said section 22a-432, 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 of the general statutes, as amended, and has not maintained any such facility or condition at such property for purposes of said section 22a-432, 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.

(b) Any covenant entered into under this section shall release only those 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 against the holder of the covenant to require remediation of the parcel or any other action against such holder 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 parcel in accordance with such plan did not comply with standards adopted by the commissioner pursuant to said section 22a-133k which were in effect as of the effective date of the covenant, or (4) if required by the standards adopted by the commissioner pursuant to said section 22a-133k, an environmental use restriction has not been recorded in accordance with section 22a-133o of the general statutes, as amended by section 9 of this act.

(c) Any prospective purchaser receiving a covenant not to sue pursuant to this section shall pay to the commissioner a fee equal to three per cent of the value of the property for which the covenant was issued provided such property is appraised as if it were uncontaminated. Such fee shall be deposited into the Special Contaminated Property Remediation and Insurance Fund established under section 4 of public act 95-190. No such fee shall be required for a covenant issued to a successor in interest to the original covenant or for a covenant issued in connection with a remediation project conducted under section 22a-133m of the general statutes, as amended.

(d) A covenant not to sue issued under this section may provide for continued monitoring in accordance with the remediation standards adopted under section 22a-133k, as amended, 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.

(e) 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 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.

*(Revisors' note: See also P.A. 96-250, S. 5, 7.)

*Sec. 11. (NEW) (a) The Commissioner of Environmental Protection may enter into a covenant not to sue with any owner of contaminated real property provided (1) a detailed written plan has been submitted for remediation of the property in accordance with standards adopted by said commissioner pursuant to section 22a-133k of the general statutes, as amended, which plan shall be incorporated by reference in the covenant or (2) the Commissioner of Environmental Protection has approved a final remedial action report for such property. No such covenant may be entered into unless such owner has demonstrated to the satisfaction of the commissioner that such owner (A) 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 of the general statutes, as amended; (B) 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 owner's interest in such property is to be conveyed or financed; and (C) will redevelop the property for productive use or continue productive use of such property provided the covenant not to sue is in the public interest. The commissioner may 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 demonstrated to the satisfaction of 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 of the general statutes, as amended, and has not maintained any such facility or condition at such property for purposes of said section 22a-432, 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 of the general statutes, as amended, and has not maintained any such facility or condition at such property for purposes of said section 22a-432, 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.

(b) Any covenant entered into under this section shall release only those 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 said section 22a-133k which were in effect as of the effective date of the covenant or (4) if required by the standards adopted by the commissioner pursuant to said section 22a-133k, an environmental use restriction has not been recorded in accordance with section 22a-133o of the general statutes, as amended by section 9 of this act.

(c) Any person receiving a covenant not to sue pursuant to this section shall pay to the commissioner a review fee of five thousand dollars which fee shall be deposited in the Special Contaminated Property Remediation and Insurance Fund established under section 4 of public act 95-190.

(d) 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.

(e) 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.

*(Revisors' note: See also P.A. 96-260, S. 5, 7.)

Sec. 12. (NEW) Any person seeking a covenant not to sue under sections 10 and 11 of this act shall submit to the commissioner sufficient information to allow the commissioner to make any determination required in said sections.

Sec. 13. Subsection (d) of section 22a-133m of the general statutes, as amended by section 10 of public act 95-183, is repealed and the following is substituted in lieu thereof:

(d) Whenever funds are used pursuant to this section for purposes of evaluating or remediating a polluted site, the Commissioner of 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 in pursuing action to contain, remove or mitigate any pollution on such site. The costs and expenses recovered 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 a year from the date such expenses were paid. 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 has entered into a covenant not to sue pursuant to [section 9 of public act 95-183] SECTIONS 10 AND 11 OF THIS ACT with respect to pollution on or emanating from the property which is the subject of said civil action.

Sec. 14. Subsection (l) of section 22a-134e of the general statutes, as amended by section 8 of public act 95-183 and section 11 of public act 95-190, is repealed and the following is substituted in lieu thereof:

(l) The fee specified in subsection (k) of this section shall be due in accordance with the following schedule: (1) Two thousand dollars shall be paid upon the filing of the notification required under section 22a-134a AS AMENDED BY SECTION 2 OF THIS ACT if the cost of remediation is less than one hundred thousand dollars; (2) six thousand dollars shall be paid upon filing of the notification required under section 22a-134a AS AMENDED BY SECTION 2 OF THIS ACT if the cost of remediation is equal to or greater than one hundred thousand dollars; (3) the balance, if any, shall be paid within thirty days of receipt from the commissioner of written approval of a remedial action plan or within thirty days of the issuance of an order, consent agreement or stipulated judgment, whichever is earlier; (4) any remaining balance shall be paid within thirty days after receipt of written notice from the commissioner that it is due; (5) any refund, if applicable, will be paid after receipt of a letter from the commissioner stating that no further action is required or after receipt of a letter of compliance. [Any] AFTER THE DEPOSIT OF ANY APPROPRIATED FUNDS, FUNDS FROM THE SALE OF BONDS OF THE STATE OR ANY CONTRIBUTION PURSUANT TO HOUSE BILL 5346* OF THE CURRENT SESSION TO THE SPECIAL CONTAMINATED PROPERTY REMEDIATION AND INSURANCE FUND ESTABLISHED UNDER SECTION 4 OF PUBLIC ACT 95-190, ANY amount received by the commissioner pursuant to this section shall be deposited into [the Special Contaminated Property Remediation and Insurance Fund, established under section 4 of this act] SAID FUND.

*(Revisors' note: See P.A. 96-250.)

Sec. 15. Subsection (h) of section 4 of public act 95-183 is repealed and the following is substituted in lieu thereof:

(h) The board shall hold the first examination pursuant to this section no later than [one year] EIGHTEEN MONTHS after the date the commissioner adopts regulations pursuant to section 22a-133k of the general statutes, and shall publish the first roster of licensed environmental professionals no later than six months after the date of such examination. Until such time as the board publishes the first roster of licensed environmental professionals, any person who (1) has for a minimum of eight years engaged in the investigation and remediation of releases of hazardous waste or petroleum products into soil or groundwater, including a minimum of four years in responsible charge of investigation and remediation of the release of hazardous waste or petroleum products into soil or groundwater, (2) holds a bachelors or advanced degree from an accredited college or university in a related science or related engineering field or is a professional engineer licensed in accordance with chapter 391 of the general statutes, and (3) pays a registration fee of one hundred fifty dollars may apply to the commissioner to be placed on a list of environmental professionals. Any person on such list may perform any duties authorized by law to be performed by a licensed environmental professional until such time as the first roster of licensed environmental professionals is published by the board.

Sec. 16. Section 9 of public act 95-183 and section 3 of public act 95-190 are repealed.

Sec. 17. This act shall take effect from its passage.

Approved May 24, 1996. Effective May 24, 1996.

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