Other 2014 Environmental and Land Use Legislation: Fracking, Brownfields, State Land Conservation, Private Easements, Wood Burning Furnaces and Running Bamboo

A publication of Pullman & Comley, LLC

The General Assembly passed noteworthy bills on six diverse environmental and land use subjects.

Hydraulic Fracturing Waste

A deceptively simple bill concerning hydraulic fracturing waste, PA 14-200, emerged as a synthesis of multiple options presented by competing proposals. Senate Bill 237 would have banned fracking waste outright. House Bill 5308 would have regulated it as hazardous waste. House Bill 5237 proposed to institute a fee on processing, sale, exchange or disposal, presumably on the salutary basis that a new waste stream represents an opportunity to spin off a revenue stream. A fourth, House Bill 5409, would have directed DEEP to “ensure” that transport of fracking waste was “subject to the same rigorous standards and transparencies governing the transport and handling of all hazardous waste,” and to study and provide a report to the General Assembly assessing such waste and recommending handling standards.

The solution that emerged was a heavily amended version of the fourth option. PA 14-200 provides that no person may accept, receive, store, treat, transfer or dispose of fracking waste, including by discharging it into a pollution abatement facility, until DEEP adopts regulations on the subject. The regulations must first address the State’s incorporation, under its delegated RCRA authority, of 40 CFR §261.4(b)(5), which exempts “drilling fluids” associated with oil and gas exploration from the definition of “hazardous waste,” and classify these materials as state-regulated waste. The regulations must also ensure that radioactive constituents in fracking waste do not pose a hazard, and require disclosure of the composition of such waste. Once the regulations are duly adopted, “no person shall” collect, store, etc., without a permit to do so.

Several interesting wrinkles emerged in the final bill. One is a prohibition on use of fracking waste for de-icing or dust suppression until regulations are promulgated defining conditions DEEP deems appropriate to protect human health and the environment. In support of this authority, the Act also authorizes DEEP to request information concerning the provenance and composition of de-icing or dust suppression materials; failure to provide such information provides a basis for DEEP to prohibit the material or decline to issue regulations for its use.

Perhaps most intriguing is a provision authorizing pilot projects for treatment of fracking waste. The Act authorizes DEEP to approve up to three requests by “professionally qualified” persons to treat up to 330 gallons of waste for research purposes. For purposes of this provision only, the Act deems fracking waste to be state-regulated hazardous waste notwithstanding the Federal exemption or the lack of regulations defining classification under state law.

The proliferation of competing options in the early phases of the session mirrors the “state of play” in environmental policy on hydraulic fracturing in general and the management of resulting wastes in particular. Oil and gas interests protest that drilling wastes have been around for decades and the RCRA exemption rightly treats them as nonhazardous. Whatever the merits of this position, recent controversy has made hydraulic fracturing a red-flag topic. PA 14-200 defers ultimate questions pending further study, while seeming to require that any solution include rejection of the federal drilling fluid exemption and at least some level of state classification as hazardous material.

Brownfield Remediation and Development

PA 14-88 makes modest but useful changes to laws concerning contaminated properties, most notably the following:

Section 1 of the Act extends the “interim verification” option, previously made available to Transfer Act sites, see Conn. Gen. Stat. § 22a-134(28), to sites under the voluntary cleanup program. Under the voluntary program as under the Transfer Act, “interim verification” is a written opinion by a Licensed Environmental Professional that the parcel has been investigated, that remediation is complete but groundwater remediation standards have not yet been met, and that a long-term remedy is being implemented to achieve groundwater compliance with a projected duration and a defined operation and maintenance (O&M) plan. The “applicant” under the voluntary program is obligated to continue groundwater remedy O&M, prevent exposure to the groundwater plume, and submit annual status reports.
Section 3 of the Act amends the Transfer Act to provide that hazardous waste generated in connection with “removal or abatement of building materials” does not count toward the 100 kilogram per month “establishment” threshold.
Section 4 makes three minor changes to the Transfer Act’s provisions concerning interim verifications.
Amends Conn. Gen. Stat. §22a-134a(g)(2)(A) to provide that “interim” verifications can be submitted for a portion of a property, as was already permitted for verifications.
Adds new Section 22a-134a(g)(2)(B) that gives each filer of interim verifications until September 1, 2015, to record an environmental land use restrictions (ELUR) , but invalidates any interim verification for which no ELUR is filed by that time.
Specifies that DEEP’s audit power extends to interim verifications.
Disposition of State Property.

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