Ruling 94-20, Hazardous Waste Assessment

FACTS:

A company ("the Company") purchased a factory and the underlying land ("the site") from two individuals ("the Transferors"). When the Company purchased the site, the Transferors were unable to submit a negative declaration, as defined in Conn. Gen. Stat. §22a-134(5), due to the long history of industrial activity at the site, and, consequently, as required by Conn. Gen. Stat. § 22a-134a(c), the Company certified to the Commissioner of Environmental Protection that any discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste on-site would be contained, removed or otherwise mitigated in accordance with procedures and a time schedule approved by the Commissioner of Environmental Protection.

As it developed, the discharge, spillage or loss, or filtration or seepage, of contaminants into the soil at the site was such that the soil at the site was a hazardous waste, as defined in 42 U.S.C. § 6903(5), and, when excavated, a manifest, as defined in 42 U.S.C. § 6903(12), was required to be filed under the Resource Conservation and Recovery Act of 1976.

ISSUE:

Is a landowner who excavates and removes contaminated soil that is a hazardous waste from a site a generator of hazardous waste, as the term is used in Conn. Gen. Stat. § 22a-132, even though the contaminants may have been discharged, spilled or lost, or filtrated or seeped, into the soil before the landowner owned the site.

DISCUSSION:

Conn. Gen. Stat. § 22a-132 requires the hazardous waste assessment to be paid by, inter alia, each

In commenting on Conn. Gen. Stat. § 22a-132, the Connecticut Supreme Court has noted that

Enthone, Inc. v. Bannon, 211 Conn. 655, 660, 560 A.2d 971 (1989).

The contaminated soil is itself a hazardous waste. It may differ from the contaminants that were originally discharged, spilled or lost, or seeped or filtrated, into the soil, which may or may not have been hazardous wastes. Irrespective, however, of how the soil came to be contaminated, the Company's act or process of excavating and removing contaminated soil from the site, where the soil is a hazardous waste and a manifest is required to transport the soil away from the site, is an "act or process [producing] hazardous waste." It is no less an act or process producing hazardous waste than the act or process of a manufacturer whose manufacturing activities produce hazardous waste. Thus, unlike the situation in Enthone, supra, the hazardous waste in question, i.e., the contaminated soil, was produced by the Company's act or process, and the Company is not merely "an entity treated as a 'generator' of hazardous waste for certain regulatory purposes"; Enthone, supra, at 660.

Further, there is no indication that any other person has been subject to regulation with respect to the contaminated soil. Accordingly, the excavation and removal of this hazardous waste from the site are acts by the Company that "first [caused] a hazardous waste to become subject to regulation." Again, unlike the situation in Enthone, supra, there is no generator, other the Company, whose act first caused the contaminated soil to become subject to regulation.

Thus, while it is sufficient, in order to conclude that the Company is a "generator" of hazardous waste, to establish that the Company "[fits] within either prong of that definition," Enthone, supra, at 660, the Company fits within both prongs.

RULING:

A landowner who excavates or removes contaminated soil that is a hazardous waste from a site is a generator of hazardous waste, as the term is used in Conn. Gen. Stat. § 22a-132, even though the contaminants may have been discharged, spilled or lost, or filtrated or seeped, into the soil before the landowner owned the site.

LEGAL DIVISION

November 7, 1994