SC Year In Review: Boundary Lines, Dog Bites And Variances
Before our annual walkabout among the land-related decisions of the Connecticut Supreme Court, let us highlight what you need to watch out for this coming year.
Heads Up, So to Speak
The euphoria this year for land use and real estate, and to some extent the environment, seems to have come from medical marijuana. The General Assembly enacted legislation and now regulations have been approved. You can go to the Department of Consumer Protection's website for just about everything you need to know about medical marijuana except maybe where to buy the most stylish bongs.
Even though U.S. Attorney General Eric Holder has said that he will let the states do their own thing unless they do not do it well (another "trust but verify"), many issues remain. What happens if a lease or loan instrument prohibits violation of federal laws? Banks, already thoroughly subdued by the post-recession regulation, want nothing to do with medical marijuana. Have you seen anyone advertising: "Your home for ganja banking?" State and federal drug-free school zone laws remain in effect and even Holder says the Department of Justice is going after anyone who comes close to exposing children to marijuana. Finally, unless you care to be Saul Goodman ("Better call Saul!"), you ought to be concerned about the big problem with ethical rules prohibiting violating the law if you are dealing with those dealing with marijuana. Remember, no matter what the U.S. Attorney General says and what the General Assembly enacts, growing, dispensing, possessing, and using marijuana is a federal crime under the Controlled Substances Act.
The environmental lawyers, those people who revel in sloshing about in the alphabet soup of such laws as TSCA, FIFRA, RCRA, CERCLA, and EPCRA, were whipsawed, waterboarded, and otherwise tortured this year by changes in the RSRs, which are, since you ask, the "Remediation Standard Regulations," and proposed changes in the Transfer Act. The Transfer Act, near as I can tell, is some mutant legal hybrid of the kid's games of hot potato and musical chairs, except that someone is left with a pile of methyl-ethyl bad stuff.
For the RSR story and links to the new regulations effective June 27, 2013, go deep into the DEEP's website. In the "go figure department," the DEEP tells us the RSRs "may be used at any site to determine whether or not remediation of contamination is necessary," but then says "[t]he RSRs do not create in and of themselves a requirement that remediation be undertaken, nor do they specify a time-frame for completing remediation."
Read the new regulations; you'll be instantly mesmerized. Many of us ended up as lawyers because we could barely pass Algebra I. With the amended RSRs we are blessed with new terms like this: "'Ninety-five percent upper confidence level of the arithmetic mean' means a value that, when repeatedly calculated for randomly drawn subsets of size n from a population, equals or exceeds the population arithmetic mean ninety-five percent of the time." Now I get it. And also typical of what you will find in the regulations is this amended formula for one type of risk assessment: (See Figure 1.)
Several changes were made that actually make cleanups easier, including leaving in place modestly polluted fill under a parking lot, exempting from remediation incidental releases from motor vehicles and non-volatile soil contamination if it has been exposed to rain infiltration for at least five years and hasn't gotten to groundwater, and a simplification and shortening of the period that groundwater must be monitored following remediation.
As to the ever-nettlesome Transfer Act, after much going back and forth, nothing happened. This year in what may be a remake of Groundhog Day with Bill Murray, we will likely see the Transfer Act debate on simply repealing it.