Recent Connecticut Environmental Law Developments
| Pages | 237 |
| Publication year | 2021 |
68 CBJ 237. Recent Connecticut Environmental Law Developments
This article reviews selected court developments in environmental law that took place in Connecticut since March 1993, highlighting significant developments from March 1993 to May 1994. (fn1) The article has seven sections dealing with case law affecting water, solid waste, underground storage tanks, hazardous waste, air, inland wetlands and land use, as well as a section containing some miscellaneous developments in Connecticut environmental law. Most notably, the courts have shown extreme deference over the past year to the Connecticut Department of Environmental Protection (DEP) in its implementation and enforcement of environmental law. The regulated community should take note of this deference in managing its compliance activities.
Starr v. Commissioner of Environmental Protection, (Starr II), (fn2) is probably the most influential environmental case decided in Connecticut during 1993. The Supreme Court upheld DEP's determination that mere ownership of contaminated property is sufficient to incur cleanup cost liability. By doing so, the Supreme Court imposed a heavy burden on landowners, even if they had nothing to do with the contamination. The legislature has responded to that burden by enacting P.A. 93-375, "An Act Establishing An Innocent Landowner Defense in Pollution Cases." See discussion of P.A. 93-375 infra.
Susan Starr owns 44 acres in Enfield, CT, acquired through inheritance from her husband. A DEP study in 1989 revealed contamination from past solid waste disposal on the site. DEP issued an order to Starr directing cleanup of the site in 1990, stating that her land could reasonably be expected to create a source of pollution to the waters of the state, and citing a violation of
Conn. Gen. Stat. § 22a-432. (fn3) At an administrative appeal of the order, the administrative hearing officer determined that § 22a-432 did not contemplate culpability as a requirement for liability to ensue; mere ownership was sufficient to trigger liability. The trial court to which Starr directed her next appeal disagreed. Reading the language of § 22a-432 more narrowly, the Superior Court interpreted the word "maintenance" to require more than the passive ownership which characterized Susan Starr's tenure as owner of the disputed site.
The Connecticut Supreme Court reversed. (fn4) In an opinion which concentrates on the relationship of § 22a-432 to nuisance law, the court held that the word "maintaining" encompassed passive ownership. (fn5) Under the common law of public nuisance, a party could be held liable regardless of fault, and the court found that § 22a-432 also contemplates liability without fault. The court discussed the broad powers given to DEP to achieve the remedial purposes of the Act, including DEP's discretion in choosing whether to expend public funds and then seek reimbursement, or to require cleanup by a private party, as DEP has required of Susan Starr. The opinion ends with a challenge to the legislature to correct the draconian result of requiring innocent landowners to pay for cleanup costs which may far exceed the value of their investment in the land.
The legislature responded, even before the court rendered its decision. The legislature passed Conn. Public Act 93-375, "An Act Establishing An Innocent Landowner -Defense in Pollution Cases," six days before the Supreme Court issued its decision in the Starr Il case. The statute allows landowners who meet certain criteria to be held liable for cleanup only to the extent of their investment in the property. Landowners are included whose property is subject to spill or discharge due to:
an Act of God, an act of war, an act or omission of a third party, other than an employee, agent or lessee of the landowner or other than one whose act or omission occurs in connection with a contractual relationship, existing
directly or indirectly, with the landowner...(fn6)
In addition, a landowner is protected who acquires property after a spill or discharge and
(i) does not know and has no reason to know of the spill or discharges, and inquires consistent with good commercial or customary practices, into the previous uses of the property; (ii) is a government entity; (iii) acquires the interest in real estate by inheritance or bequest; or (iv) acquires the interest in real estate as an executor or administrator of a decedent's estate or as a trustee that receives the interest in real estate from a decedent's estate, provided such decedent was the person holding the interest in real estate ... (fn7)
DEP, however, in applying the "innocent landowner" statute to Susan Starr's situation, has already decided that Starr does not qualify (fn8) The agency's final decision held that the manner in which the property came to be owned by Starr did not qualify for any of the exceptions under P.A. 93-375(b). Starr claimed that she inherited the property from her husband, yet DEP did not consider the passage of property from husband to wife, in the form which it took here, to be the acquisition of an interest "in real estate by inheritance or bequest. (fn9) Starr took over her husband's corporation at his death, when the subject property was an asset of that corporation. As executrix of her husband's estate, Starr managed the corporate assets, selling off some parcels and retaining others. She conveyed this parcel to the decedent's estate, and then later conveyed title to herself. The agency held that these actions constituted control of the property sufficient to move her beyond the reach of the innocent landowner statute. In addition, the agency dismissed her claim of lack of knowledge of the pollution with the rationale that she had not made reasonable inquiries "about the site's previous uses consistent with good commercial or customary practices . . . " (fn10) Although the courts have yet to interpret P.A. 93-375, DEP has demonstrated its intention to construe the new statute narrowly so as to limit its adverse effect on the cleanup of contaminated sites.
A second water case beard by the Supreme Court, Summit Hydropower Partnership v. Commissioner of Environmental Protection, (fn11) also ended in victory for DEP. In Summit, the issue raised involved the right of a plaintiff, unsatisfied by a DEP decision to deny certification of water quality, to appeal to the trial court.
DEP denied certification of water quality to the plaintiff, Summit Hydropower Partnership, for a proposed hydroelectric facility to be located on the Quinebaug River in Putnam, Connecticut. Summit had requested certification pursuant to § 401 (a) (1) of the Clean Water Act (fn12) (CWA). DEP based its denial of certification on the effects of the hydroelectric project upon the recreational and aesthetic uses of the river. DEP then held a public hearing, at which the hearing officer upheld DEP's decision to deny certification. After review of the hearing officer's findings, the commissioner issued a final decision denying § 401 certification. Summit Hydropower appealed the decision to the Superior Court pursuant to Conn. Gen. Stat. § 4183(a), part of the Uniform Administrative Procedure Act (UAPA). (fn13) The language in UAPA allows recourse to appeal in contested cases." (fn14)
The Supreme Court addressed the issue of whether the language "contested case" in the statute refers to a case of this type. The court applied a three-prong test to determine whether Summit's complaint constituted a "contested case" within the meaning of the statute:
(1) whether a legal right, duty or privilege is at issue, (2) and [that issue] is statutorily required to be determined by the agency, (3) through an opportunity for hearing or in which a hearing is in fact held. (fn15)
Determining that even if the first prong of the test was met because the § 401 certification could be considered a legal right or privilege, the court stated that the second and third prongs were not met here because the commissioner was not statutorily required to hold a hearing in this case. As the Supreme Court noted, the "procedures that any state need adopt to process § 401 water quality certification requests are determined by the statutes promulgated by each state," (fn16) and Conn. Gen. Stat. § 22a424(g), which regulates § 401 certification procedures for Connecticut, does not mandate hearings. (fn17)
The court interpreted UAPA § 4-166(2) (fn18) as "manifesting a legislative intention to limit contested case status to proceedings in which an agency is required by statute to provide an opportunity for a hearing." (fn19) By doing so, the Supreme Court arguably has granted DEP an unreviewable right to decide § 401 water certifications, a power which may be extended to analogous situations where no hearing is statutorily required.
In Connecticut Commissioner of Environmental Protection v. Grosso, (fn20) DEP brought an action to recover its costs from cleaning up the defendants discharge of petroleum products into Connecticut waters in contravention of Conn. Gen. Stat. §§ 22a438, 22a-451 and 22a-6a. The defendants filed a claim for a jury trial, analogizing actions brought under the relevant water pollution statutes to nuisance actions, for which jury trials are permitted. The defendants' argument did not persuade the Superior Court. The court emphasized that the state (through DEP), rather than a private party, sought restitution for costs incurred cleaning up others' property, a situation for which there are no analogous nuisance actions, and thus a jury trial was inappropriate.
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