Newsletter05.03.2018

2018 Environmental Legislative Update No. 4

by Christopher P. McCormack

Welcome to our Environmental Legislative Updates.

Throughout Connecticut’s legislative session, these updates highlight developments concerning environmental law and policy. The author prepares updates as Legislative Liaison of the Connecticut Bar Association’s Environmental Law Section. Pullman & Comley is pleased to offer them in this format to a wider audience.

As the session proceeds, early updates will alert readers to proposals on a broad range of issues concerning the environment, narrowing focus over time on bills that continue to progress, and concluding with a post-session wrap-up of bills that pass as well as noteworthy also-rans. Along the way they’ll summarize and challenge arguments pro and con, examine the policy and science behind proposals, and occasionally cast a side glance at the vicissitudes and vagaries of the process. The views expressed will be the author’s own, not necessarily those of Pullman & Comley LLC.

Questions, comments, requests and suggestions are always welcome. Please email me at cmccormack@pullcom.com.

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Posted May 3, 2018

It’s been a while since our last legislative update, so it’s tempting to call this one the “Excess Condiment Edition” – you know, because it has so much catchup. But that would be wrong.

As we approach the Event Horizon of the Connecticut General Assembly’s 2018 session, we will be focusing on bills that are actually coming up for votes and passing. Many of the bills we noted in prior updates cleared committees, and the issues they addressed have been further illuminated by hearing testimony and committee amendments. Although those bills technically remain alive, with one exception, we'll withhold comment until they progress — or, after the session, if they are notable for failing to do so.

The exception is SB 347, the current incarnation of a bill on revocation of remediation consent orders by the Connecticut Department of Energy and Environmental Protection. The back story by now is familiar: in the midst of a dispute with a respondent, DEEP asserted and exercised a claimed right to revoke the CO even though the respondent wanted to rely on it to define its obligations. Much distress ensued among signatories to consent orders, and among environmental lawyers with file cabinets full of the things, who tended to subscribe to the view that negotiated consent orders are tantamount to contracts and should be mutually binding.

The current version of SB 347, File Copy 290, attacks this issue in three ways. First, it limits revocation and modification to situations of material breach or material nondisclosure by the respondent. (Revocation and modification by consent are presumably within the customary CO boilerplate.) Second, the Commissioner or a party may seek declaratory or injunctive relief to resolve any dispute. Third, these changes would apply only to orders entered after the bill takes effect.

Interestingly, this approach doesn’t address one of the major scenarios put forward – and not just by DEEP – in support of a right of unilateral revocation. Brownfield assistance isn’t available when there’s an outstanding remediation order on a property. That’s as it should be when there’s a viable CO signatory – public money shouldn’t bail them out – but it’s a problem when the signatory’s nonperforming and defunct. So, the argument goes, DEEP should be able to revoke these “zombie consent orders” unilaterally to make brownfield incentives available to third-party redevelopers.

The “material breach” concept in the current version of the bill addresses the perspective of the viable, performing consent order signatory that gets into a dispute with DEEP. It also brings the consent order framework conceptually closer to the contract model. That’s what cleared the Judiciary Committee on April 25 and, barring another reference to committee, awaits assignment to the Senate calendar. All of the as-yet-uncalled Senate amendments would just tweak this basic framework: the zombie consent order issue is apparently not on the radar this time around.

Of course, with zombies, you never know.

On the relatively short list of bills that have actually passed one chamber, we begin with another one that hasn’t made DEEP happy – HB 5454 on 90-day permit processing turnaround. The version that passed the House on May 1 was largely in the form of File Copy 375, which turned the limit into a “best efforts to review” requirement “as long as the application is complete.” DEEP would be under a firmer limit of 90 days to advise the applicant of any deficiencies in the application. As passed, Section 2 of that version was replaced by House Amendment 4715, which authorizes a pilot program under which up to two LEPs “or other qualified environmental professionals certified by the commissioner as experts on relevant regulations and principles of environmental protection” could be made available, for a fee, to expedite permit applications. That certification process would no doubt be interesting.

The sewage spill right-to-know bill, HB 5130, passed the House on April 24 and already has its own File Copy 647. Basic concepts: sewage treatment plant operator continuing education, two-hour electronic reporting required for sewage spills – to DEEP for “any sewage spill,” and to the chief elected official of the local municipality if over 5,000 gallons, and then the chief elected official has to notify the public and “downstream public officials.” The latter presumably means “public officials of downstream municipalities” but we suppose both would appreciate a heads-up. The “any sewage spill” threshold for DEEP reporting brings to mind the ancient and venerable spill reporting mantra – “if it’s out of the barrel, you should be on the phone.” Spill report clearance backlog, anyone? Nothing about what DEEP is supposed to do with the sub-5,000-gallon ones.

At this point we know better than to make flip comments about turtles, so we’ll stick to the facts that HB 5354 passed the House on April 26, and also already has its own File Copy 659. The thrust of the new language has to do with regulation of traffic in red-eared slider turtles. Unless you are already conversant with the whole red-eared slider thing, you are in for a treat. Now that we know more, we can’t help but agree “there oughta be a law.”

For dams that require emergency action plans, take note of HB 5356, File Copy 247, which streamlines requirements for plan revisions and passed the House on May 2.

HB 5364 (File Copy 80) on protection of horseshoe crabs: passed House April 11.

And to end on a happy note, HB 5129, the “Save Our Lakes” license plate bill passed the House on April 30. A commendable idea, though as things stand in Hartford, it can’t hurt that there’s a revenue component. Maybe this is what’ll save us from tolls.

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