Briefly Stated: Surf’s Up in Connecticut! Catch Wave 2 of the RSRs
March 11th, 2021
After many years of paddling out to sea, the wave has crested! Wave 2 of the Connecticut Remediation Standard Regulations is here. These secondary regulations have been building for years as the Connecticut Department of Energy and Environmental Protection (CT DEEP) gathered input from the state’s various stakeholders.
These standards are the guidance for all forms of remediation and environmental investigation in Connecticut. So it’s vitally important to revisit what’s working and what’s not.
These new regulations are intended to fix, improve, and incorporate input from the entire regulated community, lawyers, and property owners. Some of the biggest changes are:
Formal Adoption of Updated Regulatory Standards Related to Volatilization
CT DEEP had previously published revised values as “alternative standards” that could be implemented on a site-by-site basis; however those values have now become the formal standard, meaning that regulatory values have become more stringent for a number of compounds. Additionally, the groundwater volatilization criteria formerly applied to contaminated groundwater within 15 feet of a building, but that has now been raised to within 30 feet of a building for certain compounds.
Various Exemptions from Certain Criteria Related to Pesticide Use
The revised regulations now include a number of scenarios where sites can be exempted from certain regulatory criteria if the issue(s) identified are related to the conventional application of pesticides. An Environmental Use Restriction (a notice recorded on the deed of the property) may be required in order to take advantage of these provisions.
Additional Scenarios where CT LEPs Can Self-Implement Certain Provisions of the RSRs
The RSRs have always contained various opportunities to request a variance from regulatory standards based on such things such as wide-spread polluted fill or the implementation of an engineered cap to limit potential exposure to contaminated material. The revised RSRs now outline scenarios where LEPs can implement these provisions directly, rather than formally requesting approval by the CT DEEP. This is intended to speed up the site closure process.
New Requirements for Engineering Control Variances
The revised regulations are more prescriptive than the previous version when it comes to engineered controls to limit exposure to contaminated material. Some of these new provisions include the certification by a licensed Professional Engineer that hardscape surfaces are expected to require minimal maintenance for a minimum of 15 years. Additionally, the regulations now adopt specific requirements to post financial assurance for the ongoing maintenance of engineering controls.
Provision to Allow for Non-Aqueous Phase Liquid (NAPL) to Be Left in Place
Wave 2 includes a variance provision to the previous requirement to remove NAPL to the “extent practicable.” Now, under specific scenarios regarding the nature of the NAPL and the setting of the Site, NAPL may be left in place if it does not pose a risk to site occupants or off-site properties. To take advantage of this variance, an Environmental Use Restriction would need to be filed on the land records.
More Detail Regarding the Reuse of Polluted Soil and Treated Soil
The new regulations are now more prescriptive in describing scenarios regarding the re-location of polluted and treated soils. Among the scenarios is a provision that allows soils polluted with pesticides to be removed and relocated to an off-site agricultural property.
New Alternatives to the Surface Water Protection Criteria
The amended regulations include provisions for LEPs to self-implement alternative Surface Water Protection Criteria under certain scenarios. The distance of contaminated groundwater to the nearest downgradient surface water body is among the considerations. In some scenarios, a dilution factor can be applied to calculate a less stringent site-specific criteria value to demonstrate compliance with the RSRs.
New Alternatives to the Groundwater Protection Criteria
As part of the amended regulations, the CT DEEP identified areas where alternative Groundwater Protection Criteria may be calculated utilizing methodology provided within the regulations. In some scenarios an LEP can self-implement the alternative criteria, whereas other scenarios would require CT DEEP approval. This provision is intended to provide new means to demonstrate compliance with the RSRs.
Standards and Provisions for a New Type of Land Use Restriction, Called a Notice of Activity Use Limitation (NAUL)
Historically, the only form of a land use restriction in the State of Connecticut was an Environmental Land Use Restriction (ELUR), which is recorded on land records and grants an easement on the property to the CT DEEP. The NAUL acts more as a general notice on the land records and does not require an easement be granted to CT DEEP.
Updated Maintenance Requirements for ELURs
The revised Land Use Restriction regulations create new requirements for properties that have recorded ELURs. These modifications apply to previously filed and new ELURs alike, and among various other things require annual inspections and periodic inspections by a CT LEP. The first inspection is due between April 1st and July 31st of this year.
These changes are huge and with HRP’s wealth of experience, we are perfectly positioned to help you understand that impacts you’ll face. Check us out here or talk to an HRP Remediation Expert directly at 860.674.9570.
Richard Kochan, LEP, Project Manager at HRP Associates, Inc.
Richard R. Chandler LEP, CPG, Sr. Project Manager/Team Leader at HRP Associates, Inc.
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