Under the leadership of Commissioner Daniel Esty, the Connecticut Department of Energy and Environmental Protection (DEEP) is continuing its drive to satisfy the legislature’s directive to transform the state’s waste site cleanup laws.   The first phase of this effort is scheduled to culminate with a December 15, 2011 report to the General Assembly.  DEEP has developed a detailed plan for putting the disparate pieces of the report together and has been working quickly to involve the range of public stakeholders.

As part of this effort, the Department held a public meeting on August 9, 2011 at DEEP Headquarters in Hartford to solicit topics for different work groups to focus on.  Graham Stevens  (Commissioner Esty’s point man for the program transformation) used a PowerPoint presentation that included twenty-nine possible topics for work group consideration.  Four of the twenty-nine were identified as the “DEEP Topics” and those correlated well with some of the ones specifically required by the legislature in Public Act No. 11-141.

Actually, the legislature included eight specific topics it wanted addressed in the report; the first seven of these could be interpreted as requests for specific information and analysis, but the eighth item was: “recommendations that will address issues identified in the report or improvements that may be necessary for a more streamlined or efficient remediation process”.  Clearly the legislature’s goal is to reshape the cleanup program to at a minimum make it more streamlined and efficient; a tacit acknowledgement that the existing program lacks those qualities.

The specific issues where the legislature seems to believe their attention is warranted include:

1. The length of time it takes for a contaminated site to work its way through the program;
2. Whether the number of properties going through the system is appropriate;
3. The role of Licensed Environmental Professionals (LEPs) in the program;
4. Information about the auditing of LEP decisions by DEEP;
5. Whether the liability relief extended to property owners is working to get the legislative goals accomplished;
6. An analysis of how DEEP’s complicated 16 program cleanup system is compares to state’s (such as Massachusetts) that have a single program cleanup system; and
7. To what extent DEEP is making use of scientific and engineering precedent by the federal government and the CT Academy of Science and Engineering and developing and implementing its cleanup program.

The legislature presumably wants the report because they believe there is an opportunity to improve the DEEP’s cleanup program by a close examination and by a rigorous comparison Connecticut’s system to other state programs.  It’s never easy or comfortable for a person or an agency to closely examine itself and to compare itself critically to others.  DEEP deserves credit for its commitment to undertake this difficult process and we are proud to have the opportunity to work with them to make it happen.

As described in an earlier post, the Connecticut DEEP (Department of Energy and Environmental Protection) is working to transform its 16 separate site cleanup programs to make the overall system more efficient and productive.  Many of the program problems are due to regulatory inflexibility; and that inflexibility reflects a fear that without close state agency involvement, cleanups will not conducted to the standards needed to protect public safety.  Despite good intentions, this fear has hindered Connecticut’s ability to develop waste site cleanup momentum.  By creating regulatory road blocks and amplifying financial risks, DEEP has depressed developer’s appetite for site cleanups.  So instead, dirty sites fester for decades.

Enter the relatively new DEEP Commissioner Daniel C. Esty.  On-leave from Yale where he is a joint professor at the Law School and the School of Forestry and Environmental Studies, he joins DEEP with a long list of accomplishments.   A champion of “next generation” regulation, he looks to private companies to take the initiative on environmental issues.  He is also an advocate of data-based environmental decision making; a principle we at OTO fervently applaud.   Esty has taken on the job of evaluating and transforming the state’s cleanup programs and his schedule is aggressive; a report is due to the State Legislature by December 15, 2011.

Commissioner Esty’s point man for managing the transformation of the cleanup regulations is Graham Stevens.  In addition to his job at DEEP, Stevens, a 1998 graduate of Clark University is also pursuing graduate studies at UConn.  After demonstrating strong leadership ability at the Department, he moved up quickly and was named Chief of Staff to former DEP Commissioner Gina McCarthy.  He now serves as the Department’s Brownfields Coordinator.  Stevens has developed a network of relationships throughout state government from the legislative to the municipal level.  As former hockey player, Esty sees Stevens as a team member who can score an important goal.

Stevens’s biggest challenge will be getting the report on transforming the site cleanup program into the net by the December 2011 deadline; a similar process in New Jersey took 18 months.  And not everyone involved necessarily wants to see him succeed. Arrayed in front of him are a group of influential players in government, legal and technical professions with vested interests in limiting the cleanup program changes.

We at OTO are fully supportive of the Commissioner’s goals.  OTO has two senior people contributing to the process.  Among our recommendations for change will be the incorporation of site specific risk assessments as a vital tool for demonstrating when a cleanup is sufficient. Whether meaningful change can ultimately be realized remains to be seen, but we are pleased to see this initiative moving forward.

When it comes to Brownfields cleanups, there may be something new in the Land of Steady Habits.  Up until quite recently, Connecticut’s efforts to encourage the cleanup of contaminated properties has been frustrated by three forces:

1. Lack of Predictability – Parties seeking to cleanup contaminated properties are unable to see through to the end of the project because the state’s regulatory programs are just too unpredictable.    Promising redevelopment plans are tabled because when the potential economic return for a project can not be estimated, there is little chance the project will be started in the first place.
2. Regulatory Inflexibility – In Connecticut there is a perception that enforcing the letter of the cleanup regulations is more important than achieving meaningful cleanup.  This is unfortunate, because every contaminated site is different, and the ability to craft creative solutions that reduce or eliminate risk to people and the environment should be more important than meeting strict regulatory requirements.
3. Liability Exposure – A friend’s favorite expressions is: “no good deed goes unpunished”.   How right he is!  In Connecticut a property owner trying, but failing to cleanup a contaminated property to the state’s satisfaction can be saddled with more liability than they bargained for.  Look at this article regarding the Norwich Hospital for how the Town of Preston got saddled with $40 million in liability by the state.

Is anything changing? Maybe.  First, as part of new Brownfields legislation, the state is now offering  liability protection to innocent landowners trying to cleanup properties.   How successful this new legislation will be remains to be seen, but it is good to finally get some incentives in place to encourage positive action.

Second, the new Commissioner of the Department of Energy and Environmental Protection is seeking ways to improve the various Connecticut site cleanup programs.  If he is successful in reforming the current programs by making them easier to understand and  more predictable, then we may see more parties willing to take the risk of trying to cleanup contaminated property in Connecticut.

Connecticut Department of Energy and Environment Protection (DEEP) Commissioner Daniel Esty has begun an ambitious initiative to transform the state’s environmental cleanup programs; in the opinion of many citizens, this initiative is long overdue.  As environmental consultants practicing in Connecticut and neighboring Massachusetts, we see the similarities and the differences between the two state cleanup programs on a daily basis, and they are quite striking.  The Massachusetts program delegates more authority to their Licensed Site Professionals (LSPs) than Connecticut DEEP does to their equivalent Licensed Environmental Professionals (LEPs).   In Massachusetts, DEP selectively audits the cleanup work of LSPs, but has moved away from direct involvement in site specific decision making.  By contrast, the Connecticut DEEP’s program uses rigid state-wide standards and then conducts a very high percentage of  audits.  DEEP’s process delegates less authority to LEPs, increases cleanup costs, and reduces the predictability of a favorable outcome.

The differences in the success of the two programs speaks volumes.  In Massachusetts there is strong public support for the cleanup program by concerned citizens and the business community; what’s more approximately two thirds of reported sites have reached closure.  The Connecticut cleanup program does not enjoy a comparable level of popularity and has achieved satisfactory cleanups on only about 10% of all so-called “transfer” sites.  While at one time considered promising, the Connecticut program has not achieved the level of success originally envisioned.

Three steps that Connecticut DEEP could take to improve their cleanup program include:

1. Delegate more responsibility for cleanup decision making to LEPs;
2. Place greater emphasis on the use of site specific risk assessment as the preferred tool for determining when site cleanup is sufficient; and
3. Revise the current groundwater protection classification system by differentiating between long term water quality objectives and realistic shorter term expectations for water quality given historic land use.

OTO is participating in the discussions that are part of the Connecticut program’s transformation.  Commissioner Esty is to be applauded for taking on the challenge of transforming the state’s cleanup program; we wish him the best of luck in this endeavor.