Connecticut Department of Energy and Environmental Protection Releases "Evaluation of Risk-Based Decision Making" With Public Comment Open Until September 30, 2014

Posted by: Christopher P. McCormack
September 12, 2014

On August 29, 2014, the Connecticut Department of Energy and Environmental Protection (DEEP) released “Evaluation of Risk-based Decision Making,” a report prepared by CDM Smith under contract to the state. DEEP has now announced that it will accept public comments until September 30, 2014, and will take the report and comments into account in formulating next steps in the multi-year initiative to “transform” Connecticut’s approach to remediating contaminated sites.

The report was prompted by a controversial proposal in the 2013 legislative session to lower the thresholds for requiring “significant environmental hazard” reports concerning contaminated properties. Although a version of that proposal was enacted as part of Public Act 13-308, the General Assembly also directed DEEP to “engage independent experts” to evaluate and recommend best practices in risk-based decision making for site remediation. DEEP must consider the resulting report and make recommendations for statutory and regulatory changes, specifically including the significant environmental hazard statute.

The CDM Smith report summarizes the results of an extensive effort to identify “best practices” in risk management throughout the country and benchmark aspects of Connecticut’s remediation framework against those of other jurisdictions. The report attempts to quantify the comparison by ranking different systems according to “best practice attributes.” The end result is a series of six “recommendations” for further refinement of Connecticut’s approach to site remediation:

• Reassign risk assessment to DEEP from the Department of Public Health.

• Establish a process for stakeholders to develop and present nonstandard solutions for brownfield properties.

•  Document the basis for default remediation criteria and provide for regular updates to reflect evolving science.

• Adopt an ecological risk assessment and risk management program.

• Encourage use of advanced site-specific risk assessment for sites where default criteria may be inappropriate.

• Consider risk management goals for carcinogenic contaminants based on size of affected population and nature of risk to the “reasonably maximally exposed individual” to support standards up to 1 in 100,000 per chemical and up to 1 in 10,000 per site.

In some respects, these concepts are highly generalized; in others, they represent ways in which risk assessment concepts could inform regulatory decisions. DEEP will now have to assimilate them and translate them into tangible proposals – a daunting challenge possibly much more complex than the General Assembly anticipated.

At a public meeting on the report on September 10, 2014, DEEP staff announced that it would take public comments on both the report and its recommendations until September 30. DEEP will consider both report and comments as it decides what to do next.

Public Act 13-308 technically requires DEEP to present its legislative and regulatory proposals by October 1, 2014, but the comment schedule makes that goal impracticable. Indeed, considering what the CDM Smith report covers – and perhaps more importantly, what it does not cover – the January 2015 opening of the next legislative session seems all too near.

Attorney Christopher P. McCormack, based in the Bridgeport office of Pullman & Comley, practices in the areas of environmental law and litigation. He is the Vice Chair and Legislative Liaison for the Environmental Section of the Connecticut Bar Association.

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