US Laws, Codes, Statutes & Cases

      Sec. 22a-133aa. Covenant not to sue prospective purchasers or owners of contaminated land. Approval of remediation plan by commissioner. Fee. (a) The Commissioner of 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 Environmental Protection 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 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) such property is not remediated in accordance with the detailed written plan approved by 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 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.

      (c) 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 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; P.A. 98-253, S. 4.)

      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.