Release-Based Cleanup Program Topical Subcommittees

The Release-based Working Group is establishing three additional topical subcommittees to make concept recommendations related to the regulations.

Release-Based Cleanup Program Topical Subcommittee Meetings

Third Phase of Subcommittee Topics

9. Cumulative Risk and Risk-Based Alternative Approaches (Subcommittee Membership)

Subsection 22a-134tt(f)(3) requires the Department to “provide flexibility, when appropriate, for licensed environmental professionals to establish and implement risk-based alternative cleanup standards developed in consideration of site use, exposure assumptions, geologic and hydrogeologic conditions and physical and chemical properties of each substance that comprise a release…”. One such approach is through the development of a cumulative risk assessment process. While certain aspects of a cumulative risk assessment, such as the assessment of toxicology of a substance, are not well aligned with Connecticut law (CGS 22a-1i and 22a-134tt), other cumulative risk assessment approaches may fit well within the current statutory framework and become integral to a successful release-based cleanup program.

This subcommittee should discuss the following:

What components of a cumulative risk assessment are LEPs qualified to perform under existing Connecticut law?
Are there alternative exposure scenarios that may warrant evaluation and integration into the cleanup standards and what, if any, institutional controls would be necessary to keep these scenarios valid?
Are there certain clean up standard risk adjustments that can be made by LEPs using a process similar to the “short forms” used in the Massachusetts Method 3 Risk Characterization process without the advice of a risk assessor or toxicologist?
Which parameters can be altered and what is a reasonable range of values that can be adjusted within the confines of a short form process? Would any of these parameters require consultation with professions with expertise beyond the expertise required of LEPs? What guidance is needed to support the use of such short forms?
How should fees to support DEEP and DPH review of cumulative risk assessments be structured?
If a short form process is utilized in a release verification, what percentage of those verifications should be audited? What level of documentation is necessary to support those verifications?
Outside of short form process, is there an intermediary process for risk assessments that can be completed more expeditiously by the regulated community than the current process and reviewed by the state agencies?
The Massachusetts Method 3 Risk Characterization includes the assessment of risk to the environment. How should ecological risk be considered under a release-based program?

The charge to this subcommittee is to determine which components of cumulative risk assessment can be implemented without increasing the human health risk on sites that have been remediated.

10. Role and Qualifications of Non-LEP Environmental Professionals (Subcommittee membership)

The release based cleanup program pursuant to CGS 22a-134pp through 134xx (Chapter 445b) provides an opportunity to expand the universe of professionals who may oversee certain types of environmental investigation and remediation of releases. In the statute, some releases may be remediated without being verified by a Licensed Environmental Professional. During the previous subcommittees, it has become clear that the class of professionals that would certify such releases needs to be defined. This subcommittee should discuss the following:

Under what conditions could other professionals certify that releases have been remediated, and, if required, investigated? Conditions mentioned in the statute include pollutant type, concentration or volume, and the imminence of harm to public health (Sec. 22a-134tt(c)(5)).
What other types of environmental activity could they supervise and what type of activity is currently being supervised by non-LEPs?
What education, experience or other qualifications are appropriate to ensure protection of public health and the environment in the specific scenarios contemplated.
What mechanism other than a new licensure can be used to demonstrate someone is qualified?
What mechanisms could be employed to limit concerns associated with relying on certifications by non-LEP environmental professionals?

This subcommittee should respond to the above questions in the context of releases that non-LEP environmental professionals may confirm have been remediated without a verification being required. In the release based cleanup program, “verification” means the written opinion of a licensed environmental professional on a form prescribed by the commissioner that the remediation of a release satisfies the standards established in regulations adopted pursuant to section 22a-134tt.

Second Phase of Subcommittee Topics

6. Modification of Clean-up Standards for Lower-Risk Releases (Subcommittee Membership)

Clean-up standards adopted pursuant to Public Act 20-9 will be based on the current Remediation Standards Regulations (RSRs). Certain modifications to the RSRs may be necessary, particularly additional endpoints for releases remediated at or near the time they occur. This subcommittee should discuss the following:

Which remedies should be available without approval of the Commissioner, which remedies will continue to require the Commissioner’s approval, which new remedies should be available for certain releases based on risk to human health and the environment, and which remedies may require adjustment based on the concepts developed so far?
Other adjustments aimed at better aligning clean-up standards with the requirements of release-based cleanup may also be considered.

This subcommittee shall evaluate how clean-up standards can best align with Public Act 20-9, the tiers of releases proposed, and the need for response actions for lower risk, common, or contemporaneous releases that are quick or simple or both. While the subcommittee may make recommendations regarding use of specific criteria in a specific circumstance, including the process for obtaining alternative criteria, this subcommittee is not asked to reevaluate the current numerical criteria in the RSRs, as that process will require the participation of additional stakeholders.

Membership: preference will be given to members that represent a cross-section of the Working Group cohort groups and those with specific experience and expertise with the Subcommittee subject matter.

7. LEP-implemented, Risk-Based Alternate Cleanup Standards (Subcommittee Membership)

The release-based program will require DEEP to focus its resources on releases that pose the greatest risk to human health and the environment. LEPs familiar with the site may be best suited to justify using alternative standards and the release-based regulations will need to accommodate additional methods and scenarios for use of alternate standards. This subcommittee should discuss the following:

How do the statutory factors (site use, exposure assumptions, geologic and hydrogeologic conditions and physical and chemical properties of each substance that comprise a release) control applicability of risk-based approach?
Should there be threshold factors (i.e., site conditions, proximity to receptors, depth to groundwater, soil type) that will permit or exclude use of certain calculated alternative standards?
Which inputs for calculating alternative standards can be modified, using what information, and in what instances?
What are contaminant thresholds that cannot be exceeded (ceiling values)
Will alternative standards be allowed for all contaminants, are any off-limits (PCBs, PFAS and other emerging contaminants)?
Are there instances where LEPs cannot independently implement such alternatives? Is this specialized group with particular qualifications?
What are scenarios and thresholds where alternate cleanup levels can be developed as part of site closure? Are any contaminants off limits (e.g., PCBs, emergent contaminants)?

This subcommittee shall evaluate under what circumstances, and with what justification, LEP-implemented alternative criteria can be used.

8. Clean-up Completion Documentation, Verifications, and Audit Frequency and Timeframes (Subcommittee Membership)

This subcommittee should discuss the following.

What is needed to demonstrate that the obligations under Public Act 20-9 have been discharged?
What documents are necessary to demonstrate such compliance?
When is verification by an LEP needed? If verification is not needed, who can determine that the clean-up meets the requirements of Public Act 20-9?
What information must be maintained to demonstrate that a release has been remediated, including any environmental use restriction?
Does this requirement to maintain records extend to: 1) remediation of releases that do not have to be reported; or 2) releases for which a verification is not required?
Are the information requirements different for different types of releases?
How long must records demonstrating compliance be maintained?
How will such information be publically accessible – by providing to DEEP or by being maintained in a publically accessible database?
How should the auditing of verification (screening versus thorough review) be calibrated to the different types of release?
What oversight will be exercised for releases not subject to reporting or for remediation if a verification is not required?

This subcommittee shall evaluate the types of documents and records that must be used and maintained to demonstrate compliance with Public Act 20-9, including the Commissioner’s review and audit of such documents and records.

First Phase of Subcommittee Topics

1. Discovery of Historical Releases (Subcommittee Membership)

This subcommittee should discuss the following:

Based on the definition of “release” in Public Act 20-9, what constitutes a historical release? Does the presence of non-naturally occurring pollutants in the environment indicate that a release has occurred?
When is a historical release discovered?
How should discovery of an historical release by parties other than an owner of property be addressed, including lessees, municipalities, and other interested parties? What role will LEPs play, if any?
How does Public Act 20-9 apply, if at all, when a release is discovered by a potential purchaser of property or similar person that did not create, or is not maintaining, the release? What if that same party subsequently purchases the property?
What if the release involves an imminent/substantial risk to public health or the environment?
In addition to who, what information is necessary to conclude that a release occurred? Is seeing a sheen on water enough? What about an oral report of disposal activity by a lay person?
What if analytical results point in different directions, for example, one results shows an exceedance while multiple other results don’t?

This subcommittee should evaluate what constitutes “discovery” of a release for purposes of Public Act 20-9. This includes the various ways in which a release may be “discovered” and how, or whether, the obligations of Public Act 20-9 are triggered by such discovery.

2. Reporting Newly-Discovered Historical Releases
(Subcommittee Membership)

This subcommittee should discuss the following:

What is the threshold for requiring reporting of a historical release? Is this threshold quantitative, qualitative, or both?
Within what time frame after discovery should a report be required?
Should reporting exceptions for certain historical releases be created if timely remediation occurs? If so, what situations would qualify and what would constitute timely remediation?
Is it necessary to address, beyond the detail provided in the statute, releases on Transfer Act or brownfield sites?
If reporting is required, what information should be reported?
How will that report be accessible to the public?
If releases do not require reporting, will there be a mechanism for the public or others to become aware that a release occurred?

This subcommittee shall discuss when an historical release must be reported, what information should be reported and how that information will be accessible to the public.

3. Characterization of a Discovered Release (Subcommittee Membership)

This subcommittee should discuss the following:

Should the regulations prescribe a method or methods that must be used to characterize the nature and extent of such release and its impact upon human health and the environment before undertaking clean-up?
Should there be a process for approving a method of characterization selected by a licensed environmental professional, including standards to validate such a method?
Should the regulations specify a process for identifying prevailing standards and guidelines to be used to characterize the nature and extent of such release?

This subcommittee shall evaluate a conceptual framework for release characterization, including the relationship to any action taken before characterization and the extent to which prescribing a method or methods within the regulation could affect the use of newer or novel forms of characterization. In addition, the subcommittee should consider whether different characterization methods or standards are necessary depending whether an urgent removal action has been performed, as well as the time that has passed since a release has occurred. While DEEP’s current site characterization guidance document should inform the work of this subgroup, any methods or standards identified should be limited to characterization of a single release.

4. Immediate Removal Actions (Subcommittee Membership)

Under the release-based cleanup program, releases may be discovered and reported that must or may be addressed swiftly through recognized mitigation and remediation efforts. Such subcommittee shall discuss the following:

For what types of releases should immediate action be required?
Should releases for which immediate action is required fall into a cleanup tier or exist outside the tiered releases?
For what types of releases should immediate action be an option? What incentives to undertake such action should be provided?
Whether there are differences between historical and contemporaneous releases or will characteristics of discovered release control?
Must an LEP close an immediate action?
What is role of emergency responders/spill contractors?
What time limit should apply to such a cleanup before it is placed in a particular tier?
Whether Immediate Removal Action can be closed if additional monitoring is still required?
When immediate action is needed and required, what name should be used for such action? Should there be two names: one for immediate action that is required; and another for immediate action undertaken voluntarily?
How will immediate actions and the existing Significant Environmental Hazard program relate?

This subcommittee shall evaluate which releases require an Immediate Removal Action and examine how to incentivize swift yet comprehensive/protective action for other releases.

5. Tiers (Subcommittee Membership)

This subcommittee should discuss the following:

After a release has been characterized, if an Immediate Removal Action has not fully remediated a release, such release will be placed into a tier.
Placement into a tier should include consideration of who will supervise a clean-up (i.e., trained employee, spill contractor, LEP, or the Commissioner), the factors that will impact the applicable tier of any release, such as risks to public health and the environment, impact to groundwater and other natural resources, and degree of removal of pollution, the demonstration that remediation of that release has been complete (closure document, verification, another endpoint), the timeframe to complete clean-up and how timing impacts a tier.
Will placement in certain tiers require clean-ups to be completed more quickly?

The subcommittee shall evaluate what factors should be used to determine into which tier a release should be placed and whether different factors need to be identified for releases discovered when they occur or later.

Subcommittees will operate in the following manner:

Subcommittees will be comprised of Working Group members and members of the public.
Subcommittee meetings will be open to the public.
DEEP and DECD will provide a written charge, detailing the issues on which advice should be provided for each topic.
Each subcommittee will consider those issues identified in its charge and, over the course of a number of meetings, prepare a paper offering conceptual direction on each issue for inclusion in a concept paper to be issued by the working group. Subcommittees may prepare more than one concept paper in the event that there are multiple perspectives on how issues identified in the charge should be addressed.
The concept papers will be presented to the Working Group and individual members of the Working Group may respond to such concept papers.
After discussion of such concepts papers, the Working Group will assemble and issue such concept papers for public feedback.
The public will be asked to provide comments on such concept papers.

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Release-Based Clean Up Program Regulation Development

Content Last Updated November 15, 2022

Connecticut Department of Energy & Environmental Protection