BY CHRISTOPHER P. McCORMACK
The Connecticut Department of Energy and Environmental Protection on Aug. 29 released “Evaluation of Risk-based Decision Making,” a report on remediation prepared by consulting firm CDM Smith under contract with the state.
DEEP announced it will accept public comments until Sept. 30 and will take the report and comments into account in formulating next steps in the multiyear initiative to transform Connecticut”™s approach to remediating contaminated sites.
The report was prompted by a proposal in the 2013 legislative session to lower the thresholds for requiring “significant environmental hazard” reports concerning contaminated properties. Although a version of that proposal was enacted as part of Public Act 13-308, the General Assembly also directed DEEP to “engage independent experts” to evaluate and recommend best practices in risk-based decision-making for site remediation. DEEP must consider the resulting report and make recommendations for statutory and regulatory changes, specifically including the significant environmental hazard statute.
The CDM Smith report summarizes the results of an extensive effort to identify best practices in risk management throughout the country and benchmark aspects of Connecticut”™s remediation framework against those of other jurisdictions. The report attempts to quantify the comparison by ranking different systems according to “best practice attributes.” The end result is a series of six recommendations for further refinement of Connecticut”™s approach to site remediation:
Ӣ Reassign risk assessment to DEEP from the Department of Public Health.
Ӣ Establish a process for stakeholders to develop and present nonstandard solutions for brownfield properties.
Ӣ Document the basis for default remediation criteria and provide for regular updates to reflect evolving science.
Ӣ Adopt an ecological risk assessment and risk management program.
Ӣ Encourage the use of advanced site-specific risk assessment for sites where default criteria may be inappropriate.
”¢ Consider risk management goals for carcinogenic contaminants, based on the size of the affected population and the nature of the risk, to the “reasonably maximally exposed individual” of up to one in 100,000 per chemical and up to one in 10,000 per site.
In some respects, these concepts are highly generalized; in others, they represent ways in which risk assessment concepts could inform regulatory decisions. DEEP will now have to assimilate them and translate them into tangible proposals ”“ a daunting challenge possibly much more complex than the General Assembly anticipated.
At a Sept. 10 public meeting on the report, DEEP staff announced the department would take public comments on the report and its recommendations until Sept.30.
Public Act 13-308 technically requires DEEP to present its legislative and regulatory proposals by Oct. 1, but the comment schedule makes that goal impracticable. Indeed, considering what the CDM Smith report covers ”“ and perhaps more importantly, what it does not cover ”“ the January 2015 opening of the next legislative session seems all too near.
Attorney Christopher P. McCormack, based in the Bridgeport office of Pullman & Comley, practices in the areas of environmental law and litigation. He is the vice chairman and legislative liaison for the environmental section of the Connecticut Bar Association. He can be contacted at cmccormack@pullcom.com.
