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.