Alert08.16.2019

Connecticut DEEP Seeks to Overhaul Remediation Standards – Expansion of LEP Approval Authority, Part I: Soil Contamination

On July 8, 2019 the Connecticut Department of Energy and Environmental Protection (“DEEP”) proposed an overhaul to its Remediation Standard Regulations (“RSRs”). These proposed amendments, often referred to as “Wave 2, ” will significantly alter Connecticut’s remediation programs if they are approved. DEEP is seeking public comments on these proposed regulatory changes through October 7, 2019, and will be hosting public information sessions in July, August and September.

Because DEEP’s regulatory changes are so sweeping, their scope cannot be captured in a single Alert. Therefore, for the next several weeks, Pullman & Comley’s Environmental Practice Group will be issuing a series of Alerts, each one focusing on one aspect of the changes to the RSRs. Today’s Alert focuses on the regulatory changes associated with soil contamination.

Connecticut Licensed Environmental Professionals (LEPs) perform crucial functions, most importantly issuing the verifications that bring sites to closure under the Transfer Act and voluntary remediation program. As the RSRs stand, however, DEEP must approve many decisions preliminary to verification, resulting in delay and expense. So one of the most significant themes of the “Wave 2” amendments is the expansion of LEP approval authority. The expansions are limited: for each decision LEPs would be authorized to make, “Wave 2” bifurcates approval authority into circumstances where they can do so and circumstances where DEEP approval will still be necessary. In general, LEPs can act where criteria can be reduced to a list of quantifiable, objective factors, whereas DEEP approval is required where outcomes turn on more complex facts, more diverse factors, and the exercise of judgment or discretion. Overall, while the proposed changes would put LEPs on a short leash, the expanded decision-making capabilities provided by “Wave 2” could meaningfully streamline the remediation process.  

Following the structure of the RSRs, and using the section designations in the “Wave 2” proposal, the proposed new LEP authorities concerning soil contamination are as follows.

Alternative Pollutant Mobility Criteria

Under proposed RCSA § 22a-133k-2(d)(4), an LEP may calculate alternative release-specific pollutant mobility criteria (PMC) using a highly detailed methodology described in proposed RSR Appendix H, and the calculated value can be used on notice to DEEP. This approach is subject to several categorical constraints:

  • Calculated criteria cannot exceed numerical ceilings (1,000 mg/kg in GA areas, 10,000 mg/kg in GB areas).
  • Analytical results for certain release areas (GA groundwater, aquifer protection areas, groundwater used as source of drinking water) cannot exceed RSR Appendix C groundwater protection criteria (GWPC).
  • There can be no exceedances of RSR Appendix D surface water protection criteria (SWPC) or Appendix E groundwater volatilization criteria (GWVC).

This new provision follows the mechanism for DEEP approval of alternative release-specific PMC, proposed in RCSA § 22a-133k-2(d)(3), which also covers release-specific dilution and dilution attenuation factors. The DEEP approval route is not subject to the constraints applicable to LEP approvals, and does not require use of the Appendix H methodology. Rather, approval turns on performance criteria – primarily  that a proposed alternative PMC “will ensure” compliance with applicable GWPC and will not result in degradation of groundwater quality or exceedances of GWPC at the nearest downgradient parcel boundary. The DEEP path also provides that alternative PMC and GWPC cannot both be used for the same substance. This condition is not expressly included in the provision defining the LEP path, but as noted above, a condition of the latter is that the groundwater must meet default GWPC criteria.

Widespread Polluted Fill

The “Wave 2” proposal includes numerous important changes concerning widespread polluted fill (WSPF), summarized in our article on that topic. Within those changes, proposed RCSA § 22a-133k-2(f)(1)(B) would authorize LEPs to approve widespread polluted fill variances based on a checklist of objective conditions:

  • The site otherwise meets the widespread polluted fill criteria of RCSA § 22a-133k-2(f)(1)(A)
  • The LEP demonstrates that specific objective criteria have been satisfied, including:
    • The fill extends over more than ten acres, is within the coastal boundary, is within a GB area, and is outside the drainage basin of any Class A stream;
    • Groundwater is in compliance with RSR criteria;
    • The fill is not hazardous waste;
    • The person requesting the variance did not place the fill and is not affiliated with anyone who did (i.e. no role or affiliation);
    • DEEP is notified of the variance; and
    • An application for an Environmental Use Restriction (EUR) has been submitted, incorporating conditions that fill cannot be moved or reused in any manner that doesn’t comply with the RSRs.

Under proposed RCSA § 22a-133k-2(f)(1)(C), DEEP will have broader authority to approve a variance based on criteria involving availability of public water supply, contaminant distribution, the extent of any groundwater plume, the degree to which fill exceeds pollutant mobility criteria, and even the comparative cost of achieving compliance either with or without a variance. Notably, these criteria largely do not match the objective LEP approval criteria. Rather, with the exception of location of public water supplies relative to the groundwater plume and a “no role or affiliation” qualification as noted above, the DEEP approval criteria are all relative and discretionary. So for DEEP, a widespread polluted fill variance would be based on a balance-of-factors analysis, as compared with the checklist of objective criteria for an LEP.

Engineered Control Variance

Under the current RSRs, an engineered control variance is available with DEEP approval. The RSRs specify three categorical scenarios where a variance is appropriate: authorized disposal at the release area, technical impracticability, and unacceptable risk associated with removal. In addition, the RSRs allow a variance upon a determination that the cost of remediation would be “significantly greater” than that of an engineered control, and the greater cost outweighs the risk to the environment and human health if the engineered control fails. This latter option is more commonly pursued – and more problematic – not only because DEEP must sign off, but because the cost and risk factors are open-ended.

The “Wave 2” proposal essentially preserves the three categorical scenarios. In addition, proposed RCSA § 22a-133k-2(f)(2) would permit LEP approval where the control meets objective criteria, while allowing for DEEP approval with greater flexibility based on the same kind of balancing test the current regulation employs.

The cost factor is the first point of divergence between the LEP and DEEP approval routes. For an LEP, the threshold determination would focus on cost alone: the LEP must certify that the cost of remediation is “significantly greater” than the cost of the engineered control. For DEEP, cost is also a threshold consideration, but in relation to risk – essentially the current balancing test.

In the “Wave 2” proposal, the LEP approval path deals with risk not as a subjective balancing against cost, but in terms of default control components that require no subjective judgment or discretion. The parameters of these objective constraints effectively define the contours of engineered controls that would be approvable by an LEP. Specifically, they prescribe or require:

  • Compliance with depth and cross-section specifications for non-paved surfaces consisting of shallow-rooted vegetation, shrubbery or trees;
  • Plans and specifications, sealed by a professional engineer, indicating that pavement or non-paved hardscape is appropriately designed and will function with minimum maintenance for fifteen years, including specifications for pavement and cross-section;
  • Compliance with cross-section criteria for ground-mounted solar arrays;
  • No PCBs above residential criteria;
  • Consolidation of soil under the control not greater than four feet above prior elevation;

The “Wave 2” DEEP approval path expands upon the cost/risk balancing with a series of open-ended performance criteria centered on soil permeability and related factors. Some track existing RSR provisions; the “Wave 2” proposal adds detailed treatment for specific combinations of RSR criteria and contaminant types.

On both the LEP and DEEP approval paths, the “Wave 2” proposal also expands on requirements for ongoing operation, inspection and maintenance, imposition of an EUR, calculation of financial assurance, and documentation of owner consent and public notice.

Use and Reuse of Polluted Soil

The “Wave 2” proposal provides for onsite reuse of polluted soil, under proper circumstances, upon notice to DEEP. Though not technically an LEP “approval” mechanism, this option is effectively implementable under LEP supervision, and appears in the familiar bifurcated structure alongside more complex reuse options that require DEEP approval.

Qualification of reuse options begins with two common threshold criteria – soil must comply with the RSRs, and no reused soil can be placed below the water table. The “notice” and “DEEP approval” paths diverge from that point in the same way as other LEP/DEEP options – with detailed objective criteria for the “notice” option for reuse on the same property, and more flexibility on the “DEEP approval” path including reuse on abutting or separate parcels under proper circumstances.

The “notice” option, found in proposed RCSA § 22a-133k-2(h)(A), would permit reuse only on the same property, and only for soil contamination and placement as follows:

  • Soil in compliance with default or alternative direct exposure and pollutant mobility criteria;
  • For soil contaminated in excess of GA pollutant mobility criteria, only in a GB area and only over soil and groundwater already affected by a release;
  • For soil containing VOCs other than volatile petroleum substances (as elsewhere defined in the “Wave 2” proposal), not under a building; and
  • No PCBs.

The “DEEP approval” option, proposed RCSA § 22a-133k-2(h)(B-C), elaborates on existing RSR authority to permit reuse on abutting parcels affected by the same release and separate parcels affected by similar releases. It further permits reused soil to be brought into compliance onsite by rendering it inaccessible or environmentally isolated or placing it under a building. Offsite reuse is permissible with DEEP approval if the soil complies with DEC and PMC and is placed over soil and groundwater already affected by a similar release.

For more information on DEEP’s changes to the Remediation Standard Regulations, please contact any member of our Environmental Practice Group, your responsible Pullman Attorney or send a message to brownfields@pullcom.com.  If you prefer, you may investigate this initiative further on DEEP’s website.

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