Developments in Connecticut Environmental Law
| Pages | 157 |
| Publication year | 2021 |
68 CBJ 157. DEVELOPMENTS IN CONNECTICUT ENVIRONMENTAL LAW
Much has occurred in Connecticut environmental law since the last journal update on this subject(fn1) Of course, given the time span between updates, this article can only serve to highlight some of the more significant developments which have occurred from 1990 to the present(fn2)
This article has six sections. Section One will serve as an overview of the ways in which the funding and the operation of the Connecticut's Department of Environmental Protection ("DEP") has changed during the last few years, as well as a review of an important case involving the DEP, Starr v. Commissioner, Department of Environmental Protection. Sections Two through Five will deal with legislative and/or regulatory changes to, as well as case law developments affecting, the air, solid waste, water, and hazardous waste programs. Finally, Section Six will review developments in other areas of Connecticut's environmental law.
In 1990, Connecticut was faced with severe budget problems, which ultimately led to the imposition of the state income tax. The economic upheaval was felt in the environmental arena as well: as part of the overall attempt to put the state back on a sound fiscal footing, as well as to provide the DEP with another source of funding to make up for past budget cuts, the General Assembly passed Public Act 90-231 which created or raised fees over a wide array of programs. Some of the programs which were affected by P.A. 90-231include:(fn3)
the application for brush-burning permits and for permits for sources of air pollution;(fn4) the registration of x-ray devices;(fn5) the monitoring of radiation from nuclear plants;(fn6) the transfer of certain hazardous waste establishments regulated under the Connecticut Transfer Act, CONN. GEN. STAT. §§ 22a-134 through 134f;(fn7) permits to transport, store, or treat hazardous waste or to operate a hazardous waste landfill or incinerator;(fn8) notification of the installation of nonresidential underground storage tanks;(fn9) the application for various solid waste permits or modifications to existing permits as well as other annual fees;(fn10) various water-related activities;(fn11) and various other hazardous waste-related permits.(fn12)
The source of funding for DEP still remains a hotly debated issue, as shown by Governor Weicker's recent efforts to use the "bottle-bill" proceeds to directly fund various DEP programs. For the moment it appears that the five cent refund on most bottles and cans of beverages will still go back to the consumer, and not to the DEP as Governor Weicker would like.
More recently, the General Assembly has attempted to address DEP's chronic permit backlog by the passage of Public Acts 91-263 and 92-162. In these acts, the General Assembly either created or called upon DEP to create general permits which could be granted either automatically or in a much more expeditious manner than had previously been the case.(fn13) Thus,
the DEP was authorized to issue general permits to cover a wide range of water-related activities;(fn14) a general permit for new or existing stationary air pollution sources not otherwise covered by an individual permit; (fn15) and general permits for certain minor activities taking place in wetlands or in tidal, coastal, or navigable waters.(fn16) The DEP also was required under P. A. 92-162 to submit to the General Assembly a plan for restructuring the permit application process (as well as the spill reporting process) for the purpose of "reducing regulatory uncertainty, delays and costs to business while maintaining environmental protection."(fn17) That report was issued in March 1993, and it contains numerous recommendations to DEP and the General Assembly to enhance and streamline the environmental permitting process.(fn18)
An important - and perhaps fundamental - challenge to DEP's ability to hold a landowner absolutely liable for any pollution found on the landowner's property was filed in 1992.(fn19) In Starr v. Commissioner, Department of Environmental Protection,(fn20) Susan Starr challenged the DEP's issuance of an order, pursuant to CONN. GEN. STAT. § 22a-432 and § 22a-433, directing her to clean up certain property she owned in Enfield. Evidence produced at the hearing held at the DEP clearly showed - at least in the opinion of the trial court judge - "that the dumping of the pollutants occurred long before the plaintiff or her husband owned the property and that the dumping was done by a now-defunct trucking company which was hauling the material from gas-producing companies in Massachusetts." The trial court also noted that Starr was denied any access to her property until the time that the pollution was actually discovered at her property. Starr had no access to her property because there was a dispute between Starr and the Town of Enfield over thec
ontrol of the road which led to her property. In the trial court's words, all this went to show that Starr's "ownership of the property was utterly passive up to the time the pollution was discovered."(fn21)
Turning to the DEP hearing officer's conclusion that both § 22a-432 and § 22a-433 provided independent bases for upholding the initial issuance of the DEP order to Starr - i.e., that Starr could be ordered to clean up the pollution despite the circumstances described above - the trial judge ruled that the plain language of § 22a-433 mandated that any order issued to Starr must be preceded by an order to the person responsible for the creation of the source of pollution or the potential source of pollution. Where as here no order had been issued to the responsible person, and despite the fact that it appeared impossible that the responsible party might ever be found, the trial court ruled that § 22a-433 "cannot be employed to confer liability on a non-culpable property owner alone."(fn22)
This left the court with the separate issue of whether, under these circumstances, Starr could be held to have maintained the polluted condition at her property in such a manner as to make her liable under § 22a-432. Rejecting the DEP hearing officer's conclusion that "mere passive ownership of property which is found to be polluted constitutes 'maintaining [a] facility or condition which reasonably can be expected to create a source of pollution' and thereby renders the owner liable for the cleanup,"(fn23) the trial court turned to the dictionary to consider just what "maintain" must mean. After considering entries from various dictionaries, the trial court concluded that Starr was not 14maintaining" a source of pollution (fn24) Accordingly, the trial court held that the DEP was without authority to issue the clean-up order to Starr, and the hearing officer's affirmance of that cleanup order was similarly erroneous.
Not surprisingly, the DEP appealed the trial court's decision, and the case has since been argued to the Connecticut Supreme Court.(fn25) The DEP did not, however, appeal that portion of the trial court's judgment which held that no order could issue to Starr under § 22a-433 unless and until an order had been issued to the party responsible for the pollution.(fn26) It would appear, therefore, that the trial court's reasoning in Starr regarding the need to issue an order to the responsible party in order for a landowner to be issued a clean-up order pursuant to § 22a-433 would also apply to similarly worded provisions of other statutes.(fn27)
In its appeal, the DEP concentrated on attacking the trial court's definition of "maintaining,"(fn28) and argued that the legislative history of § 22a-432 was clear that a landowner was to be held liable for even passive acts of "maintaining" such as mere ownership.(fn29) Starr insisted that the trial court's definition of "maintain" was correct, and that this reading of "maintain," at least for purposes of this case, is entirely consistent with the overall structure of the Connecticut Water Pollution Control Act (fn30).
It is, of course, impossible to determine how the Supreme Court will eventually decide this case, or, perhaps even more importantly, whether the Court will somehow strain mightily to contain this case to its very unusual facts. If the Court is inclined to do the latter, then a decision which would be beneficial to Starr (and of very little use to anyone else) may be the outcome. Nevertheless, a trend to challenge - perhaps even successfully - the authority of the DEP to issue orders and the statutory basis
for liability for contamination, as well as heightened incentives to carefully scrutinize regulations and statutes to ensure that the DEP has followed correctly the proper procedures prior to the issuance of an order, may be the result
In 1990, Congress substantially revised the federal Clean Air Act, 42 U.S.C. §§ 7401 to 7671q, resulting in a statute with almost unparalleled reach. This development will affect dramatically Connecticut's regulation of air pollution, since Connecticut will have to revise its regulations to maintain consistency with the federal program. As one commentator noted,
As amended in 1990, the statute is sweeping in scope, affecting thousands of businesses across many industries. The Clean Air Act presents a considerable challenge to industry to understand the requirements of the law, to prepare and participate in federal and state activities implementing the statute, and to consider how to plan for compliance. Under the 1990 amendments, the ... (EPA) and the states will develop hundreds of new regulations, informal policies, guidance documents, and...
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