Bill Text: CT HB05436 | 2010 | General Assembly | Introduced
Bill Title: An Act Concerning Brownfield Remediation Liability.
Spectrum: Moderate Partisan Bill (Democrat 27-6-1)
Status: (Passed) 2010-06-08 - Signed by the Governor [HB05436 Detail]
Download: Connecticut-2010-HB05436-Introduced.html
General Assembly |
Raised Bill No. 5436 | ||
February Session, 2010 |
LCO No. 1931 | ||
*01931_______CE_* | |||
Referred to Committee on Commerce |
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Introduced by: |
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(CE) |
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AN ACT CONCERNING BROWNFIELD REMEDIATION LIABILITY.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. Section 22a-452 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2010):
(a) (1) Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled, subject to the conditions in this section, to reimbursement from any [person, firm or corporation] potentially responsible party for the reasonable costs expended for such containment, removal, or mitigation, including any investigation or remediation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency [resulted from the negligence or other actions] was directly or indirectly caused by or contributed to or exacerbated by the actions or negligent omissions of such [person, firm or corporation] potentially responsible party. When such pollution or contamination or emergency results from the [joint negligence or other] actions or negligent omissions of two or more [persons, firms or corporations] potentially responsible parties, each shall be liable [to the others] for a pro rata share of the costs of [containing, and removing or otherwise mitigating the effects] investigation and remediation of the same and for all damage caused thereby. No potentially responsible party shall be liable for reimbursement of costs incurred unless such potentially responsible party received notice and the opportunity to participate in the investigation and remediation pursuant to subsection (f) of this section. No such potentially responsible party shall be required to reimburse the cost of any remediation above the land use that existed when the potentially responsible party owned or operated or deposited such substances on the property.
(2) If an imminent and substantial danger exists at the property or arises from pollution migrating beyond the property line, the provisions of this section limiting the potentially responsible party's liability shall not apply to an action for the costs associated with the investigation and remediation of such condition.
(b) No person, firm or corporation which renders assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened discharge of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous materials, hazardous wastes or hazardous substances, other than a discharge of oil as defined in section 22a-457b, to the surface waters of the state, or [which] who assists in preventing, cleaning-up or disposing of any such discharge shall be held liable, notwithstanding any other provision of law, for any costs of investigation and remediation under this section and civil damages as a result of any act or omission by [him] such person, firm or corporation in rendering such assistance or advice, except acts or omissions amounting to gross negligence or wilful or wanton misconduct, unless [he] such person, firm or corporation is compensated for such assistance or advice for more than actual expenses. For the purpose of this subsection, "discharge" means spillage, uncontrolled loss, seepage or filtration and "hazardous materials" means any material or substance designated as such by any state or federal law or regulation.
(c) The immunity provided in subsection (b) of this section shall not apply to (1) any person, firm or corporation responsible for such discharge, or under a duty to mitigate the effects of such discharge, (2) any agency or instrumentality of such person, firm or corporation or (3) negligence in the operation of a motor vehicle.
(d) An action for reimbursement or recovery of the reasonable costs expected for investigation and remediation shall be commenced on or before six years after the date written notice was sent to the known potentially responsible party pursuant to subsection (f) of this section.
(e) The provisions of this section shall not apply to any action filed on or before July 1, 2010. A performing party who has begun incurring costs for remediation started on or before July 1, 2010, who may seek to recover such costs pursuant to this section shall provide notice pursuant to subsection (f) of this section, not later than January 1, 2011.
(f) Except as provided in subsection (e) of this section, before any performing party files an action under this section in the Superior Court, such performing party shall provide written notice of intent to conduct investigation or remediation activities to all known potentially responsible parties not later than one hundred twenty days before the commencement of such activity. Such notice shall identify (1) the property, (2) the potentially responsible party's relationship to such property, (3) the proposed investigation or remediation activity and its estimated cost, (4) the means by which a potentially responsible party could participate in such investigation and remediation, and (5) the date that such activity is to commence. No such notice shall be required before filing a lawsuit if an imminent and substantial danger exists necessitating immediate action, provided notice is made within a reasonable time after immediate action is taken. Notice provided pursuant to this subsection shall be sent certified mail, return receipt requested, to any potentially responsible party at their last-known address on file at the Secretary of the State's office or their agent for service of process, if any. If a potentially responsible party is no longer on file with the Secretary of the State, notice shall be sent to the last-known address of the president, of the known partners or of the individual, as applicable. The performing party shall provide a copy of the notice to the Office of the Attorney General and the Commissioner of Environmental Protection. When other potentially responsible parties become known to the performing party after it provides notice pursuant to this section, the performing party shall provide notice pursuant to this subsection not later than forty-five days after the discovery of the other potentially responsible parties.
(g) Any potentially responsible party shall inform such performing party, not later than ninety days after receipt of the notice required pursuant to subsection (f) of this section, of their intent to negotiate with the performing party regarding a reasonable pro rata allocation for the costs of the investigation and remediation activities.
(h) A potentially responsible party that exercises its right to participate in the investigation and remediation of the property shall be responsible solely for such party's pro rata share of any necessary and reasonable costs of investigation and remediation. A potentially responsible party that fails to offer and share in the costs reasonably proportionate to its pro rata share or who fails to participate or respond to the notice provided in subsection (f) of this section shall (1) waive any right to challenge the reasonableness of the costs of investigation and remediation in any claim or action for reimbursement of such investigation and remediation costs; (2) pay damages to the performing party, including costs associated with any lost business opportunities; and (3) pay the performing party's attorneys fees, in the discretion of the court, and other costs of litigation, in the event the performing party prevails in its claim or action for reimbursement.
(i) In any action brought pursuant to this section, the Superior Court may issue an order granting the reimbursement or payment of reasonable costs to be incurred in the future consistent with the pro rata share of the costs of the potentially responsible party.
(j) A performing party that has failed to provide notice and opportunity to participate to any known potentially responsible party shall be prohibited from seeking reimbursement of investigation and remediation costs from such potentially responsible party.
(k) Nothing in this section shall relieve any potentially responsible party from any liability to any third party for property damage or personal injury based upon common law.
(l) Nothing in this section shall deprive any potentially responsible party from any possible defenses to any action available by law, including, but not limited to, contribution.
(m) No eligible party shall be liable for a claim under this section for any costs or damages arising from any actual or threatened discharge of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous materials, hazardous wastes or hazardous substances on or emanating from the property that occurred or existed prior to such eligible party taking title to such property, provided the eligible party did not establish, create or contribute to a condition or facility at or on such property that reasonably can be expected to create a source of pollution, contamination or emergency.
(n) No municipality shall be considered a potentially responsible party or otherwise liable for a claim under this section to any performing party or other person, firm or corporation for the costs expended for such containment, removal, or mitigation of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency under this section, and shall not be held liable for any civil damages as a result of any act or omission by the municipality or arising from any pollution or source of pollution on or emanating from the property.
(o) For purposes of this section:
(1) "Potentially responsible party" means any person, firm or corporation liable under this section for an act or negligent omission that directly or indirectly caused or contributed to or exacerbated the release, discharge, spillage, uncontrolled loss, seepage or filtration of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes;
(2) "Eligible party" means a person, firm, or corporation that (A) acquired the property after the pollution or source of pollution existed or occurred, (B) is not otherwise responsible pursuant to section 22a-428, 22a-432, 22a-433 or 22a-451 or pursuant to transfer of ownership filing pursuant to section 22a-134 or 22a-134e, 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 by which such owner's interest in the property was conveyed or financed;
(3) "Performing party" means the person, firm, corporation or municipality that performs investigation and remediation activities or contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes;
(4) "Investigation and remediation" means assessment, investigation, containment, mitigation, removal, remediation and subsequent monitoring;
(5) "Remediation" means the work performed on a site that is undertaken pursuant to a remedial action plan;
(6) "Municipality" shall have the same meaning as in section 22a-423, and includes (A) any municipal economic development agency or entity created or operating under chapter 130 or 132, (B) any nonprofit economic development corporation formed to promote the common good, general welfare and economic development of a municipality that is funded, either directly or through in-kind services, by a municipality, or (C) nonstock corporation or limited liability company established and controlled by a municipality;
(7) "Reimbursement" means the reimbursement of funds already expended or the payment of funds to be expended, pursuant to this section; and
(8) "Pro rata share" means an equitable proportionate share based upon equitable and site-specific factors, including, but not limited to, the activity conducted on the property, the duration of such activity or ownership of the property, compliance with the laws, regulations and other standards that existed at the time of ownership or operation with respect to the ownership or operation of the property, type and amount of pollution caused and prior efforts to prevent, contain, mitigate or remediate such pollution.
Sec. 2. Subsection (c) of section 22a-134b of the 2010 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2010):
(c) This section shall apply to any action brought for the reimbursement or recovery of costs associated with investigation and remediation, [as defined in subsection (n) of section 22a-452] which includes assessment, investigation, containment, mitigation, removal, remediation and monitoring, and all direct and indirect damages, except any action that becomes final and is no longer subject to appeal on or before October 1, 2009.
Sec. 3. Subsection (b) of section 22a-133u of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2010):
(b) The Commissioner of Economic and Community Development may use any funds deposited into the Special Contaminated Property Remediation and Insurance Fund pursuant to section 3 of public act 96-250* for (1) loans to municipalities, individuals or firms for Phase II environmental site assessments, Phase III investigations of real property or for any costs of demolition, including related lead and asbestos removal or abatement costs or costs related to the remediation of environmental pollution, undertaken to prepare contaminated real property for development subsequent to any Phase III investigation, [and] (2) expenses related to administration of this subsection provided such expenses may not exceed one hundred twenty-five thousand dollars per year, (3) funding the remedial action and redevelopment municipal grant program established pursuant to subsection (e) of section 32-9kk, and (4) funding the targeted brownfield development loan program developed pursuant to subsection (f) of section 32-9kk.
This act shall take effect as follows and shall amend the following sections: | ||
Section 1 |
July 1, 2010 |
22a-452 |
Sec. 2 |
July 1, 2010 |
22a-134b(c) |
Sec. 3 |
July 1, 2010 |
22a-133u(b) |
Statement of Purpose:
To facilitate the development of brownfields.
[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]