This is the seventh in a series of blog posts discussing key features of Connecticut’s new release-based cleanup regulations (the “RBCRs”), R.C.S.A. § 22a-134tt-1 et seq. 

Under the Transfer Act, the majority of site remediation efforts are led by licensed environmental professionals (LEPs).  For a minority of sites with especially serious contamination, remediation efforts are subject to direct oversight by the Department of Energy and Environmental Protection (DEEP).  This same basic framework continues under the RBCRs, with the majority of release remediation efforts led by LEPs. This post discusses how different releases are assigned to different “tiers” of oversight, and the impact of such tier assignment.

Some releases discovered and addressed under the RBCRs will be resolved in less than one year. For certain new releases and especially serious existing releases (called “significant existing releases” in the RBCRs) immediate actions are required as discussed in a prior post, and these immediate actions may be enough to completely resolve the release. Other releases will be closed within a year, even if not required, thanks to a straightforward remedial approach. 

If a release has not been closed within one year after occurrence or discovery, the RBCRs provide that it must be assigned to an oversight “tier” based on the risks posed by the release. This applies to both existing releases and new releases. As discussed below, the tier to which a release is assigned controls the oversight, deadlines, and fees associated with a release.

Tiers

In order to assign a release to a tier, an LEP must complete the Tier Checklist Form provided in the appendix to the RBCRs. This Tier Checklist Form must be completed within one year after the occurrence or discovery of the release. Tiers are assigned as follows:

  • Tier 1A: Releases that pose the highest risk and/or are poorly understood. If tier characterization (discussed in the last post) has not been completed, or if required immediate actions have not been completed, then the release is assigned to Tier 1A. Releases are also assigned to Tier 1A if receptors are not known and documented through completion of a scoping level ecological risk assessment, a drinking water receptor survey, and a vapor intrusion survey.
  • Tier 1B: Releases that are better understood than Tier 1A but still higher risk than other releases. These include releases that involve a groundwater plume migrating off the source parcel, releases for which a vapor intrusion pathway is present, and releases for which a drinking water receptor pathway is present. Even if none of the above conditions is true, a release is categorized as Tier 1B until a remedial action plan has been prepared.
  • Tier 2: Releases that pose a lower degree of risk than Tiers 1A and 1B but for which additional remediation is required. For example, Tier 2 releases are those that do not fall within Tiers 1A and 1B but still require soil remediation or the elimination of exposure pathways.
  • Tier 3: Releases for which groundwater is being addressed through monitored natural attenuation and no additional active work is required.

Impact of Tier Assignment

Releases assigned to Tiers 1B through 3 will be managed by an LEP much the way the majority of Transfer Act remediation projects are managed now. Tier 1A releases will be subject to direct oversight by DEEP, like a relatively small proportion of Transfer Act sites today require DEEP to approve the remediation.

Different tiers of releases are subject to differing fees.

 Initial fee (due on tier assignment)Annual fee (due one year after tier assignment and annually thereafter)
Tier 1A$3000$3000 + ($300 x number of years since tier assignment)
Tier 1B$1500$1500 + ($150 x number of years since tier assignment)
Tier 2$1000$1000 + ($100 x number of years since tier assignment)
Tier 3$500$50 + ($5 x number of years since tier assignment)

As set forth in the RBCRs, the annual fee increases by 10% of the base fee amount for every year that has passed since initial tier assignment (i.e., when the Tier Checklist Form is submitted for the first time). In other words, a Tier 3 release would be subject to an annual fee of $70 four years after tier assignment.

Different tiers are also subject to different deadlines:

  • Tier 1A: Within one year after initial tier assignment, Tier 1A releases must either be closed or assigned to a lower-risk tier (i.e., Tiers 1B, 2 or 3).
  • Tier 1B: Within two years after initial tier assignment, Tier 1B releases must either be closed or assigned to a lower-risk tier.
  • Tier 2: Within four years after initial tier assignment, Tier 2 releases must either be closed or assigned to Tier 3.
  • Tier 3: Must be closed within five years after initial tier assignment.

The RBCRs provide that single one-year extensions may be requested for releases in Tiers 1A, 1B and 2. For Tier 3 releases, five-year extensions may be requested and approved as long as the groundwater plume remains in a diminishing state that is naturally attenuating consistent with the conceptual site model.

In our next posts, we will discuss remediation standards and closure documentation.

The Connecticut Department of Energy and Environmental Protection (DEEP) has been busy reissuing its suite of general permits (GPs) for wastewater and stormwater discharges. In October, DEEP reissued the Commercial Stormwater General Permit, Industrial Stormwater General Permit, and Pretreatment General Permits for Significant Industrial Users and Non-Significant Industrial Users. Below are highlights of significant changes to each reissued GP, as well as important compliance deadlines and considerations for regulated entities.

1. The Commercial Stormwater General Permit (CSGP) covers commercial sites with 5 or more acres of contiguous impervious surface, including shopping centers, business parks, schools, retail complexes, car dealerships, and financial and health services with large campuses. The reissued CSGP includes the following notable changes:

    • Expanded Industry Coverage: The new CSGP uses an updated definition of “Commercial Activities” referencing Standard Industrial Classification (SIC) and North American Industry Classification System (NAICS) codes and capturing a broader range of commercial activities than the previous permit. Businesses should review Appendix A of the CSGP to determine if their SIC/NAICS code is listed.
    • New Registration Requirements: Online registration through a yet-to-be-announced platform; $625 fee.
    • Stormwater Management Plan: Required for all registrants, with expanded control measures and annual analytical plus quarterly visual monitoring.
    • Other Updates: Updated control measure requirements including new measures on deicing practices, spill prevention and cleanup, and lawn and garden center Best Management Practices. New quarterly visual monitoring and annual analytical monitoring of 19 parameters to better assess water quality impacts.
    • Deadlines: Registration opens December 1, 2025. Existing permittees must register by April 1, 2026. Existing sites without permit coverage (not previously registered) must register by December 1, 2026. New sites must apply at least 60 days before beginning discharge.
    • Potential Compliance Traps: Many facilities not previously regulated (e.g., large retail, educational campuses) may now be required to register. Failure to review the new SIC/NAICS applicability could result in unintentional noncompliance.

    2. The Industrial Stormwater General Permit(IGP) covers industrial facilities, as defined by SIC/NAICS codes in Appendix A to the IGP, that discharge stormwater to waters of the state. Industrial facilities should check their SIC/NAICS code against Appendix A to the IGP. The reissued IGP includes the following notable changes:

    • Alignment with EPA’s 2021 MSGP: Incorporates new “Resilience Measure” requirements in the Stormwater Pollution Prevention Plan (SWPPP) tracking the federal government’s Multi Sector General Permit.
    • Corrective Actions Framework: New requirements for documenting and implementing corrective actions.
    • Annual Reports: Now required each April for the prior calendar year.
    • Electronic Reporting: Discharge Monitoring Reports (DMRs) must be submitted via NetDMR; online noncompliance reporting is now mandatory.
    • Registration Fees: $1,250 for larger companies; $625 for smaller companies, federal, state and municipal-operated industrial activities
    • Signage: Facilities must post a sign indicating permit coverage.
    • Deadlines: Registration opens November 1, 2025. Existing permittees must register by April 1, 2026. New sites must register at least 90 days before discharge.
    • Potential Compliance Traps: If stormwater contacts industrial materials, activities, or operations, it is likely that the facility needs coverage. If all industrial facilities are fully sheltered and qualify under related DEEP rules, such facilities may qualify for a No Exposure Certification. In addition, the expanded monitoring, reporting, and corrective action requirements are more rigorous. Facilities must update SWPPPs and ensure timely electronic submissions to avoid enforcement.

    3. DEEP also reissued two Pretreatment General Permits for Significant Industrial Users (SIU GP) and Non-Significant Industrial Users (Non-SIU GP). The SIU GP covers indirect discharges from significant industrial users (SIUs), including metal finishing, process, and non-process wastewaters, as well as dewatering and remediation wastewaters to sanitary sewers. The Non-SIU GP covers non-significant industrial users (Non-SIUs) not subject to federal categorical standards. DEEP issued a Pretreatment Permit Decision Chart to aid entities in determining which pretreatment permit may be applicable. The reissued Pretreatment GPs include the following notable changes:

    • Updated Definitions: Flow thresholds now based on average monthly flow (≥25,000 gpd of all process wastewater for SIUs).
    • Expanded Coverage: Dewatering and remediation discharges to Publicly Owned Treatment Works (POTWs) are now included in the SIU GP.
    • Application Fees: For SIU GP, between $1,000 and $6,250 depending on the discharge type. For the Non-SIU GP, there is no DEEP fee but the POTWs reserve the right to collect fees associated with initial submission of a Notification Form.
    • Effluent Limits: New limits for mercury, PFAS, pH, temperature, and PCBs. Facilities may need to invest in new treatment or monitoring technologies to meet these limits.
    • Streamlined Process: Certification of No Change is a registration option for existing permittees; Non-SIU GP registration is notification-only.
    • Deadlines: Registration opens December 1, 2025. Existing SIUs and Non-SIUs must register by March 1, 2026. New SIUs must register at least 180 days prior to discharge. New Non-SIUs must submit a Notification Form at least 60 days prior to discharge.
    • Potential Compliance Trap: The removal of Qualified Professional Engineer (QPE) and Natural Diversity Data Base (NDDB) certification requirements is intended to streamline the process, but new effluent limits (especially for PFAS and mercury) may require operational changes.

    Important Considerations and Practical Tips

    The reissued GPs bring significant changes and expanded coverage to stormwater and pretreatment permit requirements. Regulated entities should carefully review the reissued GPs to determine if their activities are subject to permitting registration and compliance requirements, including electronic registration, updated reporting requirements, application fees, and expanded monitoring, BMPs, and corrective action requirements. Facilities should review and update their plans (e.g., SWPPP, SMP, SPCP) and train staff accordingly. Existing permittees must pay close attention to registration deadlines to maintain interim coverage.

    DEEP has also made it abundantly clear that, in an effort to increase permit processing timelines, incomplete applications will be rejected and a new application, with a new fee, will need to be submitted. DEEP has shared that the most common reasons for incomplete applications in the past were missing or improperly signed Registrant Certification and missing or incomplete sampling data.

    Robinson+Cole’s Environmental group will continue to monitor developments and provide updates concerning DEEP’s general permit and other discharge permitting requirements for stormwater and wastewaters.

    On November 20, 2025, the U.S. Environmental Protection Agency (EPA) and the Department of the Army published their proposed rule to revise the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). Following more than a decade of litigation and WOTUS “repeal and replace” rulemaking, the current administration promotes this proposal as fully implementing the U.S. Supreme Court’s 2023 decision in Sackett v. EPA. In that case, the U.S. Supreme Court rejected the “significant nexus” test that extended WOTUS status to wetlands and other features if they were found by the agencies or courts to significantly affect the “chemical, physical, and biological integrity” of traditional navigable waters.

    The proposed rule would establish a narrower scope of federal CWA jurisdiction through several revisions.

    • Actually Navigable and “Relatively Permanent” Water Bodies: Beyond traditionally navigable waters like rivers, lakes, and oceans, WOTUS jurisdiction would only extend to other tributaries, lakes, and ponds if they are standing or continuously flowing surface waters year-round or at least during a wet season.
    • Adjacent Wetlands: WOTUS wetlands would be limited to those abutting (touching) such jurisdictional waters and having continuous surface connections at least during their wet seasons.
    • Interstate Waters: Water features that simply cross state lines would no longer automatically qualify as WOTUS.
    • Clarify Exclusions: The definitions of excluded items such as ditches, prior converted cropland, and waste treatment systems would be clarified. Groundwater would be added to the expressly excluded features.
    • New Definitions: Other important terms like “tributary,” “continuous surface connection,” and “relatively permanent” would be newly defined.

    Recent Guidance and Historical Context

    This proposal follows a series of regulatory and judicial developments, including:

    • March 2025 Guidance: The EPA and the Army Corps issued field guidance on implementing the “continuous surface connection” standard post-Sackett.
    • 2023 Conforming Rule: After Sackett, the agencies amended the January 2023 WOTUS rule to remove the “significant nexus” test and align with the Court’s interpretation.
    • Prior Swings: The WOTUS definition has shifted over the course of multiple administrations – from the Obama administration’s 2015 Clean Water Rule, to the 2020 Navigable Waters Protection Rule issued during President Trump’s first term, and finally to the Biden-era revisions adopted in 2023.

    Why It Matters

    The definition of WOTUS determines which waters are subject to federal permitting and enforcement under the CWA, including:

    • Section 402 “NPDES” permits required for the point source discharge of pollutants, including certain stormwater discharges;
    • Section 404 “dredge and fill” permits required for construction and other activities disturbing wetlands; and
    • Section 311 oil spill prevention and response requirements.

    What’s Next

    Expect robust public engagement and continued litigation as this rule moves forward. While EPA and the Army Corps now have the Supreme Court’s direction thanks to Sackett, technical and legal disputes will inevitably arise. The agencies acknowledge that this proposed WOTUS definition would result in significant reductions to the WOTUS features subject to CWA permitting, though they have declined to quantify those ecological and regulatory impacts at this time.

    The focus of the interpretive debate will likely shift to the revised rule’s new standard, “at least during the wet season,” serving as the temporal test that would be required for “relatively permanent” standing or continuously flowing surface water. Though undefined, the agencies indicate that they intend this season to include each extended period when a geographic feature has predictable, continuous surface hydrology, year after year, except for any periods of extreme drought.

    Stakeholders should review the EPA’s proposed rule and fact sheets, take advantage of the agencies’ virtual meetings and other public outreach efforts, and consider submitting comments during the open period ending January 5, 2026. Robinson+Cole’s Environmental Practice Group will continue to monitor developments and provide updates concerning these and other CWA programs.

    This is the sixth in a series of blog posts discussing key features of Connecticut’s new release-based cleanup regulations (the “RBCRs”), R.C.S.A. § 22a-134tt-1 et seq. 

    The RBCRs require that, following discovery of a release, the “nature and extent of the release must be determined” so an appropriate remediation strategy can be designed and the release can be closed. This process, called “characterization,” is explained in this blog post and the companion Release Report video. 

    Characterization is required for both new and existing releases. The last few posts in this series have discussed old and new releases separately: the second and third posts in this series discussed discovery and reporting of old or existing releases, and the fourth and fifth posts in the series discussed reporting of new releases and immediate actions in response to new releases and especially serious existing releases. This post, and those posts that follow in the series, will apply to both new and existing releases.

    Characterization Process

    Characterization requires the development of a conceptual site model, defined by the RBCRs as a three-dimensional representation “of environmental conditions at a release area that is developed through a multi-phased investigative approach” validated by facts and observations. Information relevant to the development of a conceptual site model includes historical information, physical setting (e.g., site topography and geology), chemical properties of the substance(s) discovered, receptor pathways and potential receptors (e.g., water supply wells and occupied buildings), and sampling results. Development of a conceptual site model is a technical and fact-specific endeavor that requires the expertise of a licensed environmental professional (LEP).

    The RBCRs specify that characterization must be accomplished in accordance with “prevailing standards and guidelines.” Connecticut’s Department of Energy and Environmental Protection (DEEP) has released a draft “Release Characterization Guidance” which might be updated before the effective date of the RBCRs (and will be updated at DEEP’s discretion thereafter). The Release Characterization Guidance Document has many similarities with the familiar Site Characterization Guidance Document that outlines the prevailing standards and guidelines for characterizing Transfer Act sites. 

    The titles of the documents highlight an important difference in approach: the Site Characterization Guidance Document applies to the characterization of sites as a whole under the Transfer Act, while the Release Characterization Guidance reflects the release-by-release approach of the RBCRs. In contrast to the Transfer Act, the RBCRs do not require site-wide investigation.  Note that sites already in the Transfer Act as of March 1, 2026, must still complete site-wide investigation.

    Characterization Milestones

    Characterization is by nature an iterative process. A Phase I site assessment or other set of visual observations can identify an area where a release may have occurred. A Phase II or other limited subsurface investigation can answer the question of whether a release has in fact occurred, and further sampling (e.g., in a Phase III) can delineate the vertical and areal extent of the contamination. Characterization begins when a release is first suspected, discovered or witnessed and it may not end until multiple rounds of sampling are complete.

    That said, the RBCRs set forth two important characterization milestones:

    Tier Characterization: A release that takes one year or more to remediate is assigned to a risk-based tier that determines the level of oversight applicable to the remediation process. These oversight tiers will be discussed in the next post. To assign a release to the appropriate oversight tier, “tier characterization” must be completed within the first year after the discovery or occurrence of the release. 

    Tier characterization requires that contamination be delineated to identify the extent of each substance present at more than 50 percent of the applicable cleanup standard (or to the laboratory reporting limit if that is higher). Pesticides must be characterized only to the extent necessary to determine if they are present due to the application of pesticides for their intended purpose (rather than an accidental spill). A streamlined characterization approach is also available for polluted fill, as will be discussed in a future post.

    Closure Characterization: A release cannot be closed under the RBCRs until closure characterization is complete. Closure characterization requires that the horizontal and vertical extent of a release be delineated to the point that such release is no longer detected, or that the extent of the release has otherwise been determined in a manner consistent with prevailing standards and guidelines.

    Once a release has been characterized, the remediation program can be planned and carried out. Remediation and closure under the RBCRs will be discussed in forthcoming posts. In our next post, we will discuss the oversight tiers assigned after the tier characterization process. 

    The Connecticut Department of Energy and Environmental Protection (DEEP) has issued a new general permit for remediation contractors, known as the General Permit to Act as a Contractor to Contain or Remove or Otherwise Mitigate the Effects of Certain Releases (Registered Existing Release Response Contractor) (Remediation GP). This new Remediation GP supplements the well-established spill response contractor program under Connecticut General Statutes § 22a-454 and addresses a source of ongoing confusion for remediation professionals.

    By statute, a permit is required for any person engaged in the business of “collecting, storing or treating waste oil or petroleum or chemical liquids or hazardous wastes or of acting as a contractor to contain or remove or otherwise mitigate the effects of discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste…” Conn. Gen. Stat. § 22a-454(a). 

    For many years, DEEP has maintained an individual permit program under § 454 covering emergency spill response contractors. Remediation contractors (i.e., those who physically remove impacted soil during a remediation project) have not necessarily held such spill response permits. Because spill response contractors respond to emergencies, there are several requirements (e.g., 24-hour availability, access to boats, and specialized equipment) relevant to emergency spill response that are not relevant to remediation of pre-existing soil contamination.  In recent years, however, DEEP has increasingly taken the position that the remediation of pre-existing soil contamination requires a spill response permit. Given the mismatch between the spill response permit requirement and the soil remediation business, the spill response permit was not a comfortable fit for soil remediation contractors.

    The new Remediation GP is intended to bridge the gap between the requirements applicable to spill response contractors and the reality of soil remediation projects. Registrants under the Remediation GP are permitted to contain, remove, or otherwise mitigate pre-existing contamination of soil (including saturated soil below the groundwater table) with waste oil, petroleum, chemical liquids, and/or hazardous waste at sites being investigated or remediated under specified statutory and regulatory programs including:

    • State Brownfields Programs:
      • Brownfield Liability Relief Program (Conn. Gen. Stat. § 32-764)
      • Abandoned Brownfields Program (Conn. Gen. Stat. § 32-768)
      • Brownfield Remediation and Revitalization Program (Conn. Gen. Stat. § 32-769)
      • Municipal Brownfield Liability Relief Program (Conn. Gen. Stat. § 22a-133ii)
      • Voluntary Remediation Programs (Conn. Gen. Stat. §§ 22a-133x, 22a-133y);
    • The Transfer Act (Conn. Gen. Stat. § 22a-134 et seq.)
    • After March 1, 2026, the Release-Based Cleanup Regulations (Conn. Gen. Stat. § 22a- 134tt et seq.; Regulations of Connecticut State Agencies (R.C.S.A.) § 22a-134tt-1 et seq.); and
    • The Comprehensive Environmental Response, Compensation, and Liability Act (CERLCA, 42 U.S.C. § 9601 et seq., commonly known as “Superfund”), though as discussed below, new releases reportable under CERCLA are not eligible.

    Such soil remediation must be conducted under the supervision of a licensed environmental professional (LEP) in regular communication with the registrant, though a LEP does not needto be physically present for the duration of the work. Such soil remediation must also be performed in compliance with safety regulations and by personnel using appropriate personal protective equipment.

    Registrants under the Remediation GP are not permitted to address the following types of releases regulated under the:

    • Connecticut Release Reporting Regulations (R.C.S.A. § 22a-450-1 et seq.), which relate to reporting of present-day emergent releases;
    • Federal Release Reporting Regulations (CERCLA or the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. § 11001 et seq.);
    • Connecticut Underground Storage Tank Regulations (R.C.S.A. § 22a-449(d)-1 et seq.);
    • Permits issued under Conn. Gen. Stat. § 22a-449(b) to construct and operate a marine terminal; and
    • Federal Toxic Substances Control Act (TSCA) (15 U.S. Code § 2601 et seq.), i.e., certain releases containing polychlorinated biphenyls (PCBs).

    Any release subject to one of the above programs must be addressed by a spill response contractor holding an individual permit under General Statutes § 22a-454. In addition, registrants may not contain, remove, or otherwise mitigate releases from surface water or groundwater, as such activities also require a spill response permit. The Remediation GP specifies, however, that installation, operation, and maintenance of in situ remediation systems (e.g., groundwater pump-and-treat, air sparging) do not require a permit.

    As noted above, the new Remediation GP is relevant to activities undertaken in connection with Connecticut’s new Release-Based Cleanup Program, which will go into effect a few short months from now on March 1, 2026. A number of recent and forthcoming posts on this blog discuss in detail various important aspects and considerations related to the new Release-Based Cleanup Program and associated regulations.

    This is the fifth in a series of blog posts discussing key features of Connecticut’s new release-based cleanup regulations (the “RBCRs”), R.C.S.A. § 22a-134tt-1 et seq. 

    The last post in the RBCR series discussed reporting of new releases under Connecticut’s March 2022 spill regulations. This post discusses immediate response actions required for new releases (and especially serious existing releases) under the RBCRs.   

    Spill Response Today

    As previously discussed, the spill regulations at R.C.S.A. 22a-450-1 et seq., provide reporting requirements for new releases. They also require responsible parties to “act immediately to contain and remove or otherwise properly mitigate such release” to DEEP’s satisfaction “using properly trained personnel.” Some facilities employ in-house personnel properly trained to respond to some releases. Anyone in the business of responding to such releases must hold a spill response contractor permit under Conn. Gen. Stat. §22a-450.

    When DEEP personnel and spill response contractors respond to the location of a release, they take immediate action to contain or remove the material released. Once this immediate emergency condition has been corrected, the release is marked “closed” in DEEP’s spill incident database. That said, such release may not have been investigated and remediated to the same standards as existing releases, and compliance with remediation standards may not have been achieved. One of the most significant changes being implemented through the RBCRs is to integrate the characterization, remediation, and closure process for both old and new releases.

    Immediate Actions Under RBCRs

    The RBCRs provide new requirements for actions that must be taken in the immediate wake of a spill (called an “emergent reportable release” or “ERR” under the RBCRs). These requirements also apply to the discovery of a “significant existing release” or “SER,” i.e., an especially serious existing release like a contaminated drinking water well. Significant existing releases are discussed in more detail in the third post in this series.)

    Immediate actions must begin upon discovery of the emergent reportable release or significant existing release, and no later than two hours after discovery. For ERRs, such required actions include removing the release from the land and waters of the state “to the maximum extent practicable” and removing the release from improved surfaces like pavement and concrete. For SERs, it may not be possible to remove the material released right away (as it may have spread over time) and necessary actions will depend upon the site-specific and material-specific circumstances. For both SERs and ERRs, the responsible party must implement measures to prevent migration of the release (e.g., placement of barriers) and must identify and eliminate the source of the release. The RBCRs also provide specific actions that must be taken in specific circumstances. (For example, an alternate water supply must be provided when a drinking water well has been contaminated.)

    Closure and/or Longer-Term Remediation

    Some emergent reportable releases to improved surfaces (like an asphalt road) can quickly be cleaned up, and some emergent reportable releases to soil can quickly be addressed by excavating impacted soil before the release has an opportunity to spread. For these types of releases, the required closure documentation can be prepared by a new class of environmental professionals, the Permitted Environmental Professional or “PEP.” It is expected that PEPs may include some of the same people and businesses presently permitted as spill response contractors. Training and licensing materials for PEPs are still under development, and more information will be shared when it is available. 

    Other releases that cannot be closed by a PEP will be addressed by the existing cohort of Licensed Environmental Professionals or “LEPs.”

    Next Steps

    When an ERR or SER cannot be fully remediated within one year (for example, because it has impacted groundwater), it will be characterized and remediated under the process set forth in the RBCRs. Those characterization and remediation steps will be discussed in future posts.

    This is the fourth in a series of blog posts discussing key features of Connecticut’s new release-based cleanup regulations (the “RBCRs”), R.C.S.A. § 22a-134tt-1 et seq. 

    The new RBCRs set forth requirements for the characterization, remediation, and closure of both old and new releases. The last few posts in this RBCR overview series have related to the discovery and reporting of old or existing releases. This post provides a refresher of the spill regulations that went into effect in March of 2022 (R.C.S.A. § 22a-450-1 et seq.), as those spill regulations provide the requirements for reporting new releases.

    Reporting New Releases

    By statute, the person responsible for a vessel, vehicle or site which experiences the “discharge, spillage, uncontrolled loss, seepage or filtration of oil or petroleum or chemical liquids or solid, liquid or gaseous products, or hazardous wastes” which pose “a potential threat to human health or the environment” must immediately report the release to DEEP. Regulations went into effect in March of 2022 that set forth the specific parameters regarding such reporting.

    The reporting thresholds depend upon the material that has been released. A release must be reported if it involves five or more gallons of petroleum, or one and a half gallons or ten pounds of a material other than oil or petroleum. Releases below these thresholds also are reportable unless the release has been contained and removed, or otherwise properly mitigated, within two hours after discovery.

    Certain releases are always reportable, regardless of the quantity released. These include:

    • A release that enters a wetland, waterway, sanitary sewer, storm sewer, or catch basin;
    • A release from an underground storage tank;
    • A release of unknown material;
    • A release of material that contains PCBs or PFAS; and
    • A release of material that contains a listed extremely hazardous substance.

    Other types of releases are exempt from reporting. These include:

    • A release authorized by law, regulation, or permit;
    • A release from a consumer or industrial product being used as intended (for example, VOCs released from paint as it dries); and
    • Pesticides and fertilizers applied in a manner consistent with their labels.

    DEEP’s website provides reporting instructions. The first step is a call to DEEP’s 24-hour emergency phone line (1-866-DEP-SPIL/1-866-337-7745).

    Applicability of the RBCRs

    The spill regulations focus on reporting, and the RBCRs provide detailed requirements setting forth what must be done after a new release is reported, as we will discuss in the next post. That said, not all releases reportable under the spill regulations are subject to the RBCRs.

    The RBCRs apply to releases to the land and waters of the state, but not all reportable spills reach the land and waters of the state. The RBCRs provide that the following types of reportable releases are not subject to the RBCRs:

    • A release to the air;
    • A release to secondary containment, when the release does not contact soil;
    • A release indoors, provided that it does not come into contact with soil and substantially all of the material released is removed from any surface to which it was released no more than two hours after discovery.  For example, suppose a grocery store mishap results in several gallons of dish soap being spilled on the linoleum floor.  Such a release would be reportable but would not require documentation under the RBCRs if it is cleaned up within two hours.

    Next Steps

    After a new release is reported, certain immediate response actions are required, as we will discuss in our next post. Any contamination still present after the immediate response actions are completed must be characterized and remediated through the same process applicable to existing releases. These characterization and remediation requirements will be covered in future posts.

    This is the third in a series of blog posts discussing key features of Connecticut’s new release-based cleanup regulations (the “RBCRs”), R.C.S.A. § 22a-134tt-1 et seq. 

    After a release has been “discovered” (see last post) the next step under the RBCRs is evaluating if and when that release must be reported.  This post, and the companion Release Report episode, discusses reporting timelines for different types of releases, in decreasing order of seriousness.

    Significant Environmental Hazards and Significant Existing Releases

    At present, the Significant Environmental Hazards statute (Conn. Gen. Stat. § 22a-6u) requires reporting and mitigation of especially serious contamination like impacted drinking water wells and soil with concentrations of contaminants detected at 15 times the remediation standard. The Significant Environmental Hazard program will remain in place for sites in brownfields programs and other releases not subject to the RBCRs.

    For releases subject to the RBCRs, especially serious releases are considered “significant existing releases.” Similar to the familiar categories of significant environmental hazards, significant existing releases include releases that have impacted a drinking water well (or groundwater within 500 feet of a drinking water well); surface soil contaminated at 15 or 30 times remediation standards (depending on the contaminant); groundwater contamination that threatens to cause indoor air contamination; and groundwater contamination at 10 times the surface water protection criteria located within 250 feet of surface water.

    A significant existing release has been “discovered” when anyone becomes aware of the release, such person does not need to be the creator or maintainer. A person other than the creator or maintainer who discovers a significant existing release must notify such creator or maintainer within one business day either directly or through their client (if hired for due diligence purposes or otherwise by someone other than the owner with a right to access the property).  For releases known to be impacting drinking water wells, the creator/maintainer must be notified within six hours.

    Once the creator/maintainer of a significant existing release has knowledge of such release, they must notify DEEP within 24 hours if such release is impacting a drinking water well, or within 72 hours otherwise. Such significant existing releases must be addressed promptly, as a forthcoming blog post will cover.

    Other Releases – 120-day and 365-day Deadlines

    Releases that are not significant existing releases must be reported to DEEP within 120 days after discovery if:

    • Laboratory analysis indicates the presence of contaminants at more than double the relevant remediation standard for any constituent with a remediation standard. For petroleum contamination, this 120-day deadline applies only if the release has impacted at least two cubic yards of soil.
    • Non-aqueous phase liquid (e.g., oil) is present in groundwater at a measured thickness of one-eighth inch.
    • Laboratory analysis indicates the presence of a contaminant at more than double the additional polluting substances criteria (if an additional polluting substances criterion can be calculated) or indicates the presence of any amount of contamination if no additional polluting substances criterion can be calculated.

    Releases that do not fit into one of the 120-day reporting categories must be reported to DEEP within 365 days, except for low-level soil contamination as discussed below. Reporting can be avoided, however, if the contamination is remediated and a closure report is prepared before the reporting deadline occurs (i.e., either 120 or 365 days).  The closure process will be discussed in a future post.

    Incidental Releases – No Report Necessary

    As noted in the last post about discovery, any detection of contaminants above the laboratory reporting limit constitutes discovery of a release, even in minute quantities. That said, discovery in soil of constituents other that PFAS and VOCs at less than or equal to 25 percent of the remediation criterion is considered an incidental release and is not reportable. Note that this only applies to releases detected in soil—any release detected in groundwater is reportable unless it meets one of the specified exemptions discussed in the last post.

    Next Steps

    After a release is reported, it must be investigated and characterized. These investigation and characterization steps apply to both new releases and the existing releases. Characterization requirements will be discussed in the fourth post in this series. The next post and episode will discuss reporting of new releases.

    This is the second in a series of blog posts discussing key features of Connecticut’s new release-based cleanup regulations (the “RBCRs”), R.C.S.A. § 22a-134tt-1 et seq. 

    Under the new RBCRs, the obligation to characterize and, if needed, remediate pre-existing contamination begins with the “discovery” of that contamination by a person who created or is maintaining the contamination (e.g., the owner of the property on which the release is located). This blog post, and the companion Release Report episode, discusses what it means to “discover” existing contamination under the RBCRs.

    Under the RBCRs, discovery of a release to the land and waters of the state “occurs when a person who created or is maintaining an existing release has knowledge of such release” subject to some exemptions discussed below. As discussed in our last post, for practical purposes the “maintainer” can be read as the property owner plus tenants that have not discharged their responsibility to notify their landlords. Except for especially serious contamination as discussed below, a release is not “discovered” until the creator or maintainer knows about it. As we will discuss in a future blog post, there is an opportunity for prospective buyers doing pre-purchase due diligence to learn about site conditions without triggering reporting obligations for the current owner.

    Discovery

    A creator or maintainer of an existing release can discover such release in one of three ways:

    Laboratory analysis of soil, groundwater, sediment, or soil vapor that indicates concentrations of such substances above the laboratory reporting limit. Note that this does not require that any remediation standard be exceeded—a release has been discovered if any contamination has been detected, even in minute concentrations.  Reporting requirements, including carve-outs for low-level contamination, will be discussed in the next blog post.

    Observed presence of non-aqueous phase liquid (e.g., oil visible on the surface of groundwater)

    Multiple lines of evidence of a release are discovered in the course of an investigation. The regulations provide that such evidence can include information about the geographical area (e.g., aerial photos depicting a stockpile or lagoon, maps depicting site features, witness accounts of site features or activities); field screening tools; observed staining; odors; indoor air samples indicating the intrusion of soil vapor; and visible asphalt, solid waste, and other non-native materials. While DEEP’s language defining what it means for multiple lines of evidence to be “discovered in the course of an investigation” did not make it into the final version of the regulations, DEEP provided an explanation of its thinking in its response to comments received on a draft of the regulations. Such an investigation can include an environmental Phase I, but it can also include a geotechnical investigation, survey, or any other inspection by several different types of professionals for the purpose of identifying pollution, planning for construction or redevelopment, or disposing or discharging soil, sediment, or groundwater, or complying with any federal, state, or locally issued permit or authorization. DEEP might provide additional guidance on this point as the RBCRs are implemented.

    In addition to the above methods for the creator/maintainer of a release to discover such release, there are a few ways that a release could be discovered by someone else. Especially serious contamination like a contaminated drinking water well (known as a “significant existing release” in the RBCRs) can be discovered by anyone (reporting requirements for significant existing releases will be discussed in the next post). In addition, if someone is investigating the source of contamination on their property, and identifies a likely source on a different property, they can provide information on the release to the owner of the suspected source property. The owner of the suspected source property will be presumed to be maintaining a release until they have characterized the suspected source area and confirmed that there is no such release.

    Exemptions

    The regulations provide that certain types of contamination do not constitute a discovered release subject to the RBCRs. Releases from underground storage tanks subject to Conn. Gen. Stat. 22a-449(d) are not subject to the RBCRs and instead must be addressed through the underground storage tank regulations. Substances that are present because of certain authorized discharges, automobile exhaust and fertilizers and pesticides applied consistent with their labels are not considered discovered releases subject to the RBCRs. Other targeted exemptions (e.g., for recreational fire pits) exist as well.

    The statute provides that a release has not been discovered if the “only evidence of such release is data available or generated” before March 1, 2026. While DEEP has not offered any guidance on what it means for the “only evidence” to be such data, it does mean that there is no obligation to review reports buried deep in the filing cabinet and notify DEEP of releases on Day One of the program. Such releases would be discovered, and must be reported, if and when they are re-discovered in the future.

    Next Steps

    Once a release is discovered, the creator/maintainer has responsibilities to address such release under the RBCRs. The first step, reporting, will be discussed in the next post.

    Following the Trump administration’s abrupt cancelation of the Revolution Wind project at the end of August, Revolution Wind LLC, a joint venture between Ørsted and Skyborn Renewables, filed suit in the U.S. District Court for the District of Columbia seeking to prevent enforcement of the stop work order. Revolution Wind contends that the order was motivated by political partisanship and that the administration’s claimed “national security” justification was arbitrary and capricious. 

    On a parallel track, Connecticut and Rhode Island brought a similar action in Rhode Island District Court, claiming that the cancellation order was baseless and harmed ratepayers in both states, which were to have been the beneficiaries of the 704 MW of anticipated generation from the project. Revolution Wind had completed all state and federal reviews, including the Department of Defense, and was approximately 80% completed at the time of the order.

    The Trump administration has also announced its intention to revoke federal approvals for New England Wind, which is not yet under construction, and other projects off the coast of Maryland. Revocation of these permits would complete the targeting of active and pending offshore projects off the coasts of Maryland, Massachusetts, New York (with the exception of Empire Wind, which was able to reverse a revocation order), New Jersey, and Rhode Island. Coastal Virginia Offshore Wind, a 60% completed offshore project that has maintained the support of Republican Virginia Governor Glenn Youngkin, has thus far been allowed to proceed.