(a) The Commissioner of Energy and Environmental Protection may enter into a covenant not to sue with any prospective purchaser or owner of contaminated real property provided (1) a detailed written plan for remediation of the property, in accordance with standards adopted by said commissioner pursuant to section 22a-133k, has been approved by the Commissioner of Energy and Environmental Protection, which plan shall be incorporated by reference in the covenant, (2) the Commissioner of Energy and Environmental Protection has approved a final remedial action report for such property, or (3) if before any approval by the commissioner of a detailed written plan or final remedial action report for such property, the commissioner has approved a brownfield investigation plan and remediation schedule, as defined in subsection (f) of section 22a-133aa, which investigation plan and remediation schedule shall be incorporated by reference in the covenant. No such covenant may be entered into unless such purchaser or owner has demonstrated to the satisfaction of the commissioner that such purchaser or owner (A) did not establish or create a facility or condition at or on such property which reasonably can be expected to create a source of pollution to the waters of the state for purposes of section 22a-432 and has not maintained any such facility or condition at such property for purposes of said section, and such purchaser is not responsible pursuant to any other provision of the general statutes for any pollution or source of pollution on the property; (B) is not affiliated with any person responsible for such pollution or source of pollution through any direct or indirect familial relationship or any contractual, corporate or financial relationship other than that by which such purchaser's interest in such property is to be conveyed or financed; and (C) will redevelop the property for productive use or continue productive use of such property provided the commissioner determines that the covenant not to sue is in the public interest. Upon the request of a successor of an original holder of a covenant issued under this section, the commissioner shall enter into such covenant with such successor if such successor certifies to the satisfaction of the commissioner that such successor complies with subparagraphs (A), (B) and (C) of this subsection. The commissioner may enter into a covenant not to sue with any lending institution to whom a prospective purchaser of contaminated real property conveys a security interest in such property provided such institution has demonstrated to the satisfaction of the commissioner that such institution did not establish or create a facility or condition at or on such property which reasonably can be expected to create a source of pollution to the waters of the state for purposes of section 22a-432 and has not maintained any such facility or condition at such property for purposes of said section, and such institution is not responsible pursuant to any other provision of the general statutes for any pollution or source of pollution on the property. Any covenant issued to a lending institution under this section shall be effective with respect to any lending institution which is a successor in interest to the original lending institution provided such successor lending institution did not establish or create a facility or condition at or on such property which reasonably can be expected to create a source of pollution to the waters of the state for purposes of section 22a-432 and has not maintained any such facility or condition at such property for purposes of said section, and such institution is not responsible pursuant to any other provision of the general statutes for any pollution or source of pollution on the property.

(b) Any covenant entered into under this section shall release only those claims said commissioner may have which are related to pollution or contamination on or emanating from the property, which contamination resulted from a discharge, spillage, uncontrolled loss, seepage or filtration on such property prior to the effective date of the covenant. Such covenant shall provide that the commissioner will not take any action against the holder of the covenant to require remediation of the parcel or any other action against such holder related to such discharge, spillage, uncontrolled loss, seepage or filtration unless (1) prior to the commissioner's approval of a detailed written plan for remediation pursuant to a brownfields investigation plan and remediation schedule, the commissioner finds that there is substantial noncompliance with such investigation plan and remediation schedule and there has not been a good faith effort to substantially comply therewith, (2) such property is not remediated in accordance with the detailed written plan approved by the commissioner and incorporated by reference in such covenant, (3) prior to completion of remediation in accordance with such plan, the commissioner finds that there is substantial noncompliance with any such plan and there has not been a good faith effort to substantially comply therewith, (4) remediation of the parcel in accordance with any detailed written plan for remediation did not comply with standards adopted by the commissioner pursuant to section 22a-133k which were in effect as of the effective date of either the covenant or the commissioner's approval of the detailed written plan for remediation, whichever is later, (5) if required by the standards adopted by the commissioner pursuant to section 22a-133k, an environmental land use restriction has not been recorded in accordance with section 22a-133o or there has been a failure to comply with the provisions of such a restriction, (6) for a property subject to the brownfield plan and remediation schedule, the commissioner does not approve a detailed written plan for remediation, or (7) the prospective buyer or owner fails to pay the fee, including the failure to pay in accordance with any payment schedule pursuant to subsection (c) of this section.

(c) (1) Any prospective purchaser or owner receiving a covenant not to sue pursuant to this section shall pay to the commissioner a fee equal to three per cent of the value of the property for which the covenant was issued provided such property is appraised as if it were uncontaminated. Such fee shall be deposited into the Special Contaminated Property Remediation and Insurance Fund established under section 22a-133t. No such fee shall be required for a covenant issued to a successor in interest to the original covenant, for a covenant issued in connection with a remediation project conducted under section 22a-133m, or for a municipality or municipal economic development agency or a nonprofit economic development corporation formed to promote the common good, general welfare and economic development of a municipality that is funded, either directly or through in-kind services, in part by a municipality and such corporation's officers and directors.

(2) Notwithstanding any other provision, the commissioner may approve a written payment schedule of the fee set forth in subdivision (1) of subsection (c) of this section, for a prospective purchaser or owner receiving the covenant not to sue and who has a brownfield investigation plan and remediation schedule approved by the commissioner. Any such payment schedule shall be incorporated by reference into the covenant.

(d) A covenant not to sue issued under this section may provide for continued monitoring in accordance with the remediation standards adopted under section 22a-133k, and, if further remediation is necessary based upon the results of such monitoring, that further action will be taken to remediate the property in accordance with such standards.

(e) A covenant not to sue issued under this section shall not preclude the commissioner from taking any appropriate action, including, but not limited to, any action to require remediation of the property, if he determines that the covenant not to sue was based on information provided by the person seeking the covenant which information such person knew, or had reason to know, was false or misleading.

(f) A “brownfield investigation plan and remediation schedule” means a plan and schedule for investigation, and a schedule for remediation, of any abandoned or underutilized site where redevelopment and reuse has not occurred due to the presence of pollution on the soil or groundwater that requires remediation prior to or in conjunction with the restoration, redevelopment and reuse of the property. The commissioner may determine for each property whether the commissioner will oversee the investigation and remediation of the property or whether such oversight will be delegated to a licensed environmental professional. For each property subject to a covenant under this section based on an approved brownfield investigation plan and remediation schedule, the owner or prospective purchaser shall perform all investigation and remediation activities under the direction of a licensed environmental professional, and shall ensure that all documents required to be submitted contain a written approval of a licensed environmental professional, even at properties for which the commissioner has not delegated oversight to a licensed environmental professional. Each investigation plan and remediation schedule shall provide a schedule for activities including, but not limited to, completion of the investigation of the property in accordance with prevailing standards and guidelines, submittal of a complete investigation report, submittal of a detailed written plan for remediation, completion of remediation in accordance with standards adopted by said commissioner pursuant to section 22a-133k, and submittal of a final remedial action report. At a minimum, the detailed written plan for remediation shall be submitted, pursuant to the schedule, for the commissioner's review and, as appropriate, approval. If the commissioner approves the detailed written plan for remediation, the plan shall be considered incorporated by reference into the covenant not to sue. The commissioner may require submittal of other plans and reports for the commissioner's review and approval.

(g) Any prospective purchaser or municipality remediating property pursuant to the abandoned brownfield cleanup program established pursuant to section 32-768 shall qualify for a covenant not to sue from the Commissioner of Energy and Environmental Protection without fee. Such covenant not to sue shall be transferable to subsequent owners provided the property is undergoing remediation or is remediated in accordance with subsection (f) of section 32-768.

(P.A. 96-113, S. 10, 17; P.A. 98-253, S. 4; P.A. 07-233, S. 12; P.A. 10-32, S. 86; P.A. 11-80, S. 1; 11-141, S. 11; P.A. 13-308, S. 18.)

History: P.A. 96-113 effective May 24, 1996; P.A. 98-253 authorized covenants with owners of real property under this section, required approval by the commissioner of remediation plans prior to approving covenants, and added provision in Subsec. (b)(4) re failure to comply with restriction provisions; P.A. 07-233 added Subsec. (a)(3) re investigation plan and remediation schedule, added new Subsec. (b)(1) re finding of substantial noncompliance with plan and schedule, redesignated existing Subsec. (b)(1) to (4) as Subsec. (b)(2) to (5), added Subsec. (b)(6) and (7) re nonapproval of remediation plan and failure to pay fee, redesignated existing Subsec. (c) as Subsec. (c)(1), exempted municipalities, municipal economic development agencies and certain nonprofit economic development corporations from fee required in Subsec. (c)(1), added Subsec. (c)(2) re payment schedules, added Subsec. (f) re brownfield investigation plan and remediation schedule and made conforming technical changes, effective July 1, 2007; P.A. 10-32 made a technical change in Subsec. (b)(7), effective May 10, 2010; pursuant to P.A. 11-80, “Commissioner of Environmental Protection” was changed editorially by the Revisors to “Commissioner of Energy and Environmental Protection” in Subsecs. (a) and (g), effective July 1, 2011; P.A. 11-141 added Subsec. (g) re properties in abandoned brownfield cleanup program, effective July 8, 2011; P.A. 13-308 made a technical change in Subsec. (g), effective July 1, 2013.