Sec. 22a-133aa.
Covenant not to sue prospective purchasers of
contaminated land.
Fee. (a) The Commissioner of Environmental Protection may
enter into a covenant not to sue with any prospective purchaser of contaminated real
property provided (1) a detailed written plan has been submitted for remediation of the
property in accordance with standards adopted by said commissioner pursuant to section
22a-133k, which plan shall be incorporated by reference in the covenant or (2) the
Commissioner of Environmental Protection has approved a final remedial action report for
such property. No such covenant may be entered into unless such purchaser has demonstrated
to the satisfaction of the commissioner that such purchaser (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) such property is
not remediated in accordance with the detailed written plan submitted to the commissioner
and incorporated by reference in such covenant, (2) prior to completion of remediation in
accordance with such plan, the commissioner finds that there is substantial noncompliance
with such plan and there has not been a good faith effort to substantially comply
therewith, (3) remediation of the parcel in accordance with such plan did not comply with
standards adopted by the commissioner pursuant to section 22a-133k which were in effect as
of the effective date of the covenant, or (4) if required by the standards adopted by the
commissioner pursuant to section 22a-133k, an environmental use restriction has not been
recorded in accordance with section 22a-133o. (c) Any prospective purchaser 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 or for a covenant issued in connection with a remediation project
conducted under section 22a-133m. (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.
(P.A. 96-113, S. 10, 17.)
History: P.A. 96-113 effective May 24, 1996.
Sec.
22a-133bb.
Covenant not to sue owners of contaminated land.
Fee. (a) The Commissioner of Environmental Protection may
enter into a covenant not to sue with any owner of contaminated real property provided (1)
a detailed written plan has been submitted for remediation of the property in accordance
with standards adopted by said commissioner pursuant to section 22a-133k, which plan shall
be incorporated by reference in the covenant or (2) the Commissioner of Environmental
Protection has approved a final remedial action report for such property. No such covenant
may be entered into unless such owner has demonstrated to the satisfaction of the
commissioner that such 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; (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 owner'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 covenant not to sue is in the public interest. The commissioner may
enter into a covenant not to sue with any lending institution to whom such owner 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 to require remediation of the parcel or any other
action related to such discharge, spillage, uncontrolled loss, seepage or filtration
unless (1) such property is not remediated in accordance with the detailed written plan
submitted to the commissioner and incorporated by reference in such covenant, (2) prior to
completion of remediation in accordance with such plan, the commissioner finds that there
is substantial noncompliance with such plan and there has not been a good faith effort to
substantially comply therewith, (3) remediation of the property in accordance with such
plan did not comply with standards adopted by the commissioner pursuant to section
22a-133k which were in effect as of the effective date of the covenant or (4) if required
by the standards adopted by the commissioner pursuant to section 22a-133k, an
environmental use restriction has not been recorded in accordance with section 22a-133o.
(c) Any person receiving a covenant not to sue pursuant to this section shall pay to the
commissioner a review fee of five thousand dollars which fee shall be deposited in the
Special Contaminated Property Remediation and Insurance Fund established under section
22a-133t. (d) A covenant not to sue issued under this section may provide for continued
monitoring in accordance with such standards 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 (1) 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, (2) new information confirms the existence of previously unknown
contamination which resulted from a discharge, spillage, uncontrolled loss, seepage or
filtration which occurred prior to the effective date of the covenant, or (3) the threat
to human health or the environment is increased beyond an acceptable level due to
substantial changes in exposure conditions at such property, including, but not limited
to, a change from nonresidential to residential use of such property.
(P.A. 96-113, S. 11, 17.)
History: P.A. 96-113 effective May 24, 1996.
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