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Proposed Amendments to Remediation Standard Regulations and Environmental Land Use Restrictions Regulations

September 11, 2012

The Environmental Practice Group at Murtha Cullina wants you to be aware that the Department of Energy and Environmental Protection (“DEEP”) has given notice of its intent to amend the Remediation Standards Regulations (“RSRs”) and the Environmental Land Use Restrictions (“ELUR”) Regulations.  One or more of these amendments may affect your operations, therefore, we suggest that you review them and contact us if you have any questions.

RSRs

The RSRs contain guidance and standards used to determine whether remediation of polluted soil, surface water or a groundwater plume is necessary to protect human health and the environment, as well as technical criteria for any resulting remediation.  The purpose of the proposed amendments is to remove unintended barriers to remediation and “aid site cleanup and redevelopment without compromising the protection of public health and environmental quality.”  The proposed amendments to these regulations include, but are not limited to, the following:  

Generally:

  • Clarifying the applicability of the RSRs; and
  • Providing for the use of forms designated by the Commissioner for persons requesting a variance or any other approval by the Commissioner, or submitting any required notice to the Commissioner.

Soil Remediation:

  • Providing a test methodology and criteria for petroleum hydrocarbons, and exempting the applicability of the direct exposure criteria (“DEC”) to petroleum hydrocarbons or semi-volatile substances in soil under specified circumstances;   
  • Revising the definition of “inaccessible soil” to render inaccessible certain substances found in polluted fill that are normally found in asphalt;   
  • Revising the criteria for remediation of soils polluted with lead to bring the RSRs inline with the federal standards;   
  • Revising certain formulae for calculating the residential direct exposure criteria for additional polluting substances;   
  • Modifying the standards applicable to polluted soils in GA areas;    
  • Clarifying requirements concerning the treatment of polluted fill which contains any combination of coal ash, wood ash, coal fragments, or asphalt paving fragments;
  • Providing a pollutant mobility criteria (“PMC”) exception for petroleum hydrocarbons or semi-volatile substances in soil under specified circumstances;
  • Providing an alternative for application of the direct exposure criteria and PMC under specified circumstances;
  • Deletion of the prohibition for a person requesting a widespread polluted fill variance if such person was authorized to legally dispose of such fill; and  
  • Increasing the flexibility of engineered controls by tailoring such controls to the applicable DEC or PMC demonstration.

Ground Water Remediation:

  • Providing an exemption of the remediation criteria for trihalomethanes in ground water resulting from releases of drinking water from a public water supply system;
  • Revising the ground water monitoring and compliance provisions to allow Licensed Environmental Professionals (“LEPs”) self-implementation of these sections; and
  • Revising the formula for calculating the ground water protection criteria for additional polluting substances.

ELUR Regulations

The ELUR Regulations identify the procedures and standards for the use and recording of environmental land use restrictions, which permit remedial goals to be met by minimization of the risk of human exposure to pollutants and hazards to the environment by preventing specific uses or activities at a property. The purpose of the proposed amendments is “to clarify requirements and incorporate procedural changes that streamline the process of utilizing an ELUR on polluted real property.”

The proposed amendments to these regulations include, but are not limited to, the following:  

  • Clarification of the forms that must be submitted to DEEP for review and approval; and
  • Consolidation of the Application Form for an ELUR so that the same form may be used whether the ELUR is to be approved by the Commissioner of DEEP or an LEP.

A public hearing is scheduled for all interested persons for October 25, 2012 from 1:00 p.m. – 6:00 p.m. (until all the comments have been heard or until the last person present has testified) in DEEP’s Phoenix Auditorium, 5th Floor, 79 Elm Street, Hartford, Connecticut.  DEEP has requested that any person giving oral comment at this public hearing also submit a written copy of their comments.  Comments on the proposed amendments may also be submitted to the attention of Robert E. Bell at:

Department of Energy & Environmental Protection
Bureau of Water Protection and Land Reuse
79 Elm Street
Hartford, Connecticut  06106 – 5127. 

All comments must be received by the close of the public hearing.

In addition, informational sessions are scheduled for September 20 and 26, 2012, both of which are scheduled from 1:30 p.m. - 3:30 p.m. in DEEP’s Phoenix Auditorium, 5th Floor.  These  informational sessions are not a substitute for submitting comments as described above and no public comments will be received during the informational sessions.

If you wish to submit comments or would like more information concerning any of these amendments, please contact  Mark  Sussman (msussman@murthalaw.com), or any of the other members of Murtha Cullina’s Environmental Practice Group.  Similarly, for issues pertaining to public hearings and legislation, please feel free to contact Jane Murphy (jmurphy@murthalaw.com) or any of the members of our Government Affairs Group.

 

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