CT Property Owners with Recorded Environmental Use Restrictions Subject to New Obligations

As detailed in prior client alerts, Connecticut is in the midst of a transformative effort with regard to its environmental programs.  This transformation includes on its face smaller, but no less important, components that the regulated community needs to consider and be aware of.  It may surprise property owners with already recorded Environmental Use Restrictions (“EURs”) that they are now subject to a new suite of requirements associated with those EURs.  These requirements attach to the current owner of the real property regardless of who was responsible for the EUR or the remediation that the EUR is associated with.  [NOTE:  A recorded Environmental Land Use Restriction or ELUR is an EUR and thus subject to these regulations.]

The regulations are effective as of February 16, 2021 and can be found at Regulations of Connecticut State Agencies Sections 22a-133q-1—22a-133q-app2.  This alert is specific to Sections 22a-133q-8, Post-recordation Inspections and Corrective Actions and 22a-133q-9, Miscellaneous Requirements.

Property owners that currently have an EUR recorded on the land records (regardless of who was responsible for the remediation of the property or when the EUR was recorded) must comply with the following:

• INSPECTIONS: Inspections must be conducted of both the property itself and EUR-related documents on an annual basis between April 1 and July 31 of each year. DEEP recently published an Annual Inspection Form that must be used for the owner inspection and submitted to DEEP.  A Licensed Environmental Professional (LEP) is required to conduct a comprehensive inspection every fifth year beginning in 2025.  The form is available on the DEEP website.  

• CORRECTIVE ACTIONS: In the event the owner knows or reasonably should know of conditions which do not comply with the EUR the owner must notify DEEP within 30 days and correct the non-compliance as soon as possible but no later than within 90 days.

• EUR FACTSHEETS: Properties which are occupied by persons must publicly post or otherwise make available an “EUR factsheet” which is defined as a statement that explains the restrictions and affirmative obligations associated with the EUR, describes subject areas and includes information necessary to protect health and safety. DEEP very recently published a template for the factsheet which must be used. This obligation is effective April 17, 2021.  We do not expect this to be an enforcement priority for DEEP given the fact that the template was just published and based on DEEP commentary.  However, we do recommend that property owners prepare the factsheet as soon as reasonably possible.  Members of the Pullman & Comley Environmental Group are available for consultation on this obligation.

• HEALTH AND SAFETY NOTIFICATIONS: The EUR factsheet and the EUR itself must be provided to the person overseeing the health and safety of workers who are doing “work” on a parcel subject to an EUR, effective immediately. DEEP has not provided additional information as to what it considers “work” for purposes of this provision but this requirement is limited to those “who may be exposed to pollution from such work.”

• DOCUMENT RETENTION: Copies of all records, documents, and reports required by the EUR regulations or which are otherwise associated with the EUR and in the owner’s possession as of February 16, 2021 must be retained by the owner and provided to DEEP upon request.

• TRANSFER: Prior to transferring any non-ownership interest in a property subject to the EUR, the owner must provide the transferee with a copy of the EUR and the EUR factsheet.  Prior to transfer of an ownership interest the owner must provide the EUR, the EUR factsheet and all other associated documents required to be maintained or are otherwise contemplated by the regulations.  Within 30 days after transfer of ownership, the transferee must provide written notification to DEEP of the transfer.