“New” Significant Environmental Hazard Notifications go into effect in Connecticut today - July 1st, 2015
Senate Bill No. 941, An Act Delaying Implementation of Certain Standards and Sampling Requirements upon the Detection of Pollutants Causing Contamination of Soil, Groundwater or Public or Private Drinking Water Wells, died within the General Assembly without passage, which means that the implementation of Sections 31 and 32 of P.A. 13-308 goes into effect on July 1st 2015.
The original raised bill sought to delay implementation of provisions, Sections 31 and 32 of Public Act 13-308 by two years, while a substitute bill, which voted favorably out of the Environment Committee, delayed the implementation by one year until July 1, 2016. The bill faced opposition in several committees and The Connecticut Department of Energy and Environmental Protection (DEEP) was also not supportive of the proposed legislation.
Since there will be no extension of the effective date, significant amendments to the Significant Environmental Hazard (SEH) statute, originally enacted in 2013 pursuant to Public Act No. 13-308, will go into effect July 1. The amendments have drastically lowered thresholds for triggering a property owner's obligation to notify the DEEP of significant environmental hazards as defined in § 22a-6u.
The lowering of SEH notification thresholds will create a real potential for increased notifications to the DEEP as part of routine due diligence investigations that are conducted as part of real estate deals.
Significant changes are noted as follows:
Drinking Water Well is Contaminated Above Criteria
Current Regulation: Pollution on or emanating from a property has affected a public or private drinking water supply well at a concentration that exceeds Remediation Standard Regulations (RSRs) groundwater protection criteria. Notification is required if a drinking water supply well sample has contamination above groundwater protection criteria for any constituent. Confirmation sampling may be required by DEEP as part of the post-notification response. Inventory and sampling of nearby wells will typically be required. Notification of affected water users and provision of an alternative supply of potable water may also be required.
New Regulation: Notification requirements are still the same; however, within 30 days of becoming aware of the impact the owner will need to determine the presence of other water supply wells within 500 feet of the contaminated well and sample wells on adjacent parcels if the wells are within 500 feet of the contaminated well
Drinking Water Well has Contamination Detected
Current Regulation: Pollution on or emanating from a property has affected a public or private drinking water supply well with a substance at a concentration less than RSR groundwater protection criteria, or with any substance for which there is no RSR criterion. Free phase petroleum in a supply well is a polluting substance that should be reported pursuant to this section. If it is believed the hazard has been identified due to an elevated local background level for a pollutant, this should be explained in the notification. Confirmation sampling may be required by DEEP as part of the post-notification response. Inventory and sampling of nearby wells may also be required.
New Regulation: Notification requirements remain the same. In addition the DEEP will now require the owner of the parcel to conduct confirmatory sampling of the well within 30 days. If confirmatory sampling identifies that the well contains a concentration of a contaminant above remedial standards then then owner must proceeded with notification and sampling requirements identified in Drinking water well is contaminated above criteria.
Surface Soil Contamination
Current Regulation: Pollution on or emanating from a property has caused soil within two feet of the surface to be contaminated with a substance, other than total petroleum hydrocarbons, at a concentration at or above 30 times either RSR industrial /commercial or residential direct exposure criteria, depending on current land use. Notification is required if a single soil sample within two feet of the surface has contamination above the specified trigger criteria for any constituent. However, several exceptions apply.
New Regulation: The significant changes to this category are as follows;
- Pollution on or emanating from a property has caused soil within two feet of the surface to be contaminated with a substance above 15 times the residential direct exposure criteria for a residential use site.
- Pollution on or emanating from a property has caused soil within two feet of the surface to be contaminated above 15 times the industrial/commercial direct exposure criteria for metals or PCBs within three hundred feet from any residence, school, park, playground or daycare facility; unless covered with pavement and fenced off from the public.
Volatile Organic Compounds beneath a Building
Current Regulation: Pollution on or emanating from a property has caused groundwater within 15 feet beneath a building to be contaminated at a concentration at or above 30 times either RSR industrial/commercial or residential volatilization criteria for groundwater based on the properties current use. Notification is required if a groundwater sample from water less than 15 feet below a building exceeds the trigger criteria.
New Regulation: Pollution on or emanating from a property has caused groundwater within 15 feet of a building to be contaminated at a concentration at or above 10 times either RSR industrial/commercial or residential volatilization criteria for groundwater based on the property's current usage.
Drinking Water Well is Threatened by a Groundwater Pollution Plume
Current Regulation: Pollution on or emanating from a property has caused contamination of groundwater within 500 feet in an upgradient direction of a public or private drinking water supply well at a concentration that exceeds RSR groundwater protection criteria.
New Regulation: Pollution on or emanating from a property has caused contamination of groundwater within 500 feet in an upgradient direction or two hundred feet in any direction of a public or private drinking water supply well at a concentration that exceeds RSR groundwater protection criteria.
As indicated, the new regulations brings with it significant changes to SEH reporting. Based on the reduced reporting thresholds it is likely that there will be a tremendous increase in reporting of hazards being made as part of routine due diligence investigations. It is imperative that all parties involved in due diligence investigations understand the reporting requirements, how they will be triggered, and how they may impact potential real estate deals.