Changing the Transfer Act to Encourage Job Growth and Revitalization of Cities
May 16, 2010
The problem with environmental law in Connecticut is that it suffers from a lack of clear direction. Contrary to public opinion, the regulators at the Department of Environmental Protection are, for the most part, extremely competent and hard-working. Government employees are simply an easy target given the economic and political climate of the past few years. However, whether or not the bureaucracy is a convenient scapegoat, the truth is that our environmental laws are not designed to protect us from harmful contaminants while promoting economic growth. The parts per billion standards are often excessive and economic wellbeing is not a factor. As will be discussed below, those two goals are not in conflict. Adding a dose of commonsense to our statutory framework can, in fact, accomplish both objectives.
In Connecticut, the primary statute for achieving site cleanup is the Property Transfer Act. Often, when industrial or commercial properties are purchased, the Transfer Act is the law which requires a party to the transaction to remediate the site. However, the law is partially blind to the realities facing that property. These realities include scarce buyers and market values that often are less than the cost of remediation. In this regard, a property in an urban area must justifiably meet cleanup standards that protect site occupants from direct contact exposure and volatilization of contaminants into the structure. However, those same sites must also comply with requirements to protect surface water quality and to protect groundwater from leaching concerns even if the receiving water body is thoroughly degraded. Additionally, if a site in an urban area was originally developed or expanded with the use of fill, those contaminants in the fill are subject to remediation by the property owner even if that party had no connection to the placement of fill material and even though that fill material may be buried under concrete or asphalt surfaces.
The fact is that many properties remain abandoned and unmarketable because the cost of cleanup is far too high. Further, those contaminants below urban structures are often not creating an environmental hazard to site occupants or to neighboring water bodies. The net effect of these laws is to keep under utilized properties in disrepair. These sites sit idle with no development opportunities and, therefore, with the contamination remaining unaddressed. Remember, in Connecticut, most sites get cleaned up as a result of requirements that are only triggered on the conveyance of the site.
Why not simply assure that these sites are remediated to prevent direct contact exposure and to minimize issues pertaining to indoor air quality? Why not encourage investors to develop these sites and spark a renewal of urban growth? Why not make it clear to the development community that cleaning up an urban site will be less expensive than cleaning up a site in a more sensitive environmental area? If money truly talks, reducing the costs of remediation in urban areas will result in new development in these areas.
In summary, it is unfair to blame DEP employees for performing their role of enforcing existing law. We really need to take a hard look at how our laws affect behavior and how we can use these laws to promote growth while protecting our citizens. A naïve approach which ignores job growth and revitalization of urban areas is not in our best interests. We can do much better if we stop assigning blame to the regulators and begin to tackle the real problems which we face everyday.