Substitute House Bill No. 6333
Substitute House Bill No. 6333
PUBLIC ACT NO. 97-218
AN ACT CONCERNING THE HAZARDOUS WASTE
ESTABLISHMENT TRANSFER ACT AND THE STATE LIEN
AGAINST REAL ESTATE FOR REMEDIATION OF
ENVIRONMENTAL CONTAMINATION.
Be it enacted by the Senate and House of
Representatives in General Assembly convened:
Section 1. Section 22a-134 of the general
statutes is repealed and the following is
substituted in lieu thereof:
For the purposes of this section and sections
22a-134a to 22a-134d, inclusive:
(1) "Transfer of establishment" means any
transaction or proceeding through which an
establishment undergoes a change in ownership, but
does not mean (A) conveyance or extinguishment of
an easement, (B) conveyance of property through a
judicial foreclosure, (C) conveyance of a deed in
lieu of foreclosure to an institutional lender,
including, but not limited to, a banking
institution, (D) conveyance of a security interest
including, without limitation, a mortgage, (E)
renewal of a lease, (F) conveyance, assignment or
termination of a lease for a period less than
twenty-five years from the date of such
conveyance, assignment or termination, including
options or extensions of such period, (G) any
change in ownership approved by the Probate Court,
(H) conveyance of title to a surviving joint
tenant, or to a trustee, executor, or
administrator under the terms of a testamentary
trust or will, or by intestate succession, (I)
corporate reorganization not substantially
affecting the ownership of the establishment,
including, but not limited to, stock dividend
distributions or stock distributions in connection
with a merger, (J) the original issuance of stock
or other securities of an entity which owns or
operates an establishment, (K) the transfer of
stock, securities or other ownership interests
representing less than a majority of the voting
power of the entity that owns or operates the
establishment, (L) any conveyance of an interest
in an establishment where the transferor is the
sibling, spouse, child, parent, grandparent, child
of a sibling or sibling of a parent of the
transferee, (M) any conveyance of a portion of a
parcel upon which portion no establishment is or
has been located and upon which there has not
occurred a discharge, spillage, uncontrolled loss,
seepage or filtration of hazardous waste, provided
either the area of such portion is not greater
than fifty per cent of the area of such parcel or
written notice of such proposed conveyance and an
environmental condition assessment form for such
parcel is provided to the commissioner sixty days
prior to such conveyance, [or] (N) conveyance of a
service station, AS DEFINED IN SUBDIVISION (5) OF
THIS SECTION OR (O) ANY CONVEYANCE OF A PARCEL
WHICH, PRIOR TO JULY 1, 1997, HAD BEEN DEVELOPED
SOLELY FOR RESIDENTIAL USE AND SUCH USE HAS NOT
CHANGED;
(2) "Commissioner" means the Commissioner of
Environmental Protection or his designated agent;
(3) "Establishment" means any real property
at which or any business operation from which (A)
on or after November 19, 1980, there was
generated, except as the result of remediation
activities, more than one hundred kilograms of
hazardous waste in any one month, (B) hazardous
waste generated AT A DIFFERENT LOCATION by another
person or municipality was recycled, reclaimed,
reused, stored, handled, treated, transported or
disposed of, (C) the process of dry cleaning was
conducted on or after May 1, 1967, (D) furniture
stripping was conducted on or after May 1, 1967,
or (E) a vehicle body repair shop or vehicle
painting shop is or was located on or after May 1,
1967;
(4) "Hazardous waste" means any waste which
is (A) hazardous waste identified in accordance
with Section 3001 of the federal Resource
Conservation and Recovery Act of 1976, 42 USC 6901
et seq., (B) hazardous waste identified by
regulations adopted by the Commissioner of
Environmental Protection, or (C) polychlorinated
biphenyls in concentrations greater than fifty
parts per million except that sewage, sewage
sludge and lead paint abatement wastes shall not
be considered to be hazardous waste for the
purposes of this section and sections 22a-134a to
22a-134d, inclusive;
(5) "Service station" means a retail
operation involving the resale of motor vehicle
fuel including, but not limited to, gasoline,
diesel fuel and kerosene and which operation does
not otherwise meet the definition of an
establishment;
(6) "Certifying party" means a person
associated with the transfer of an establishment
who signs a Form III or Form IV and who agrees to
investigate THE PARCEL IN ACCORDANCE WITH
PREVAILING STANDARDS AND GUIDELINES and TO
remediate the parcel IN ACCORDANCE WITH THE
REMEDIATION STANDARDS;
(7) "Party associated with the transfer of an
establishment" means (A) the owner of the
establishment, (B) the transferor, transferee,
lender, guarantor or indemnitor, (C) the business
entity which operates or operated the
establishment, or (D) the state;
(8) "Remediation standards" means regulations
adopted by the commissioner pursuant to section
22a-133k;
(9) "Parcel" means piece, parcel or tract of
land which constitutes an establishment, as
defined in subdivision (3) of this section, or on
which is or was located any business operation
which constitutes an establishment;
(10) "Form I" means a written declaration by
the transferor of an establishment on a form
prescribed and provided by the commissioner that
no discharge, spillage, uncontrolled loss, seepage
or filtration of hazardous waste has occurred at
the parcel WHICH DECLARATION IS BASED ON AN
INVESTIGATION OF THE PARCEL IN ACCORDANCE WITH
PREVAILING STANDARDS AND GUIDELINES;
(11) "Form II" means a written declaration by
the transferor of an establishment on a form
prescribed and provided by the commissioner that
(A) any discharge, spillage, uncontrolled loss,
seepage or filtration of hazardous waste which has
occurred at the parcel has been remediated IN
ACCORDANCE WITH THE REMEDIATION STANDARDS and that
the remediation has been approved in writing by
the commissioner or has been verified pursuant to
section 22a-133x or section 22a-134a in a writing
attached to such form by a licensed environmental
professional to have been performed in accordance
with the remediation standards or (B) the
commissioner has determined in writing or a
licensed environmental professional has verified
pursuant to section 22a-133x or section 22a-134a
in a writing attached to the form that no
remediation is necessary to achieve compliance
with the remediation standards;
(12) "Form III" means a written certification
signed by a certifying party on a form prescribed
and provided by the commissioner, which
certification states that (A) a discharge,
spillage, uncontrolled loss, seepage or filtration
of hazardous waste has occurred at the parcel or
the environmental conditions at the parcel are
unknown, and (B) that the person signing the
certification agrees to investigate the parcel IN
ACCORDANCE WITH PREVAILING STANDARDS AND
GUIDELINES and to remediate the parcel in
accordance with the remediation standards;
(13) "Form IV" means a written certification
signed by one or more certifying parties on a form
prescribed and provided by the commissioner AND
WHICH IS ACCOMPANIED BY A WRITTEN DETERMINATION BY
THE COMMISSIONER OR BY A LICENSED ENVIRONMENTAL
PROFESSIONAL PURSUANT TO SECTION 22a-134a OR
22a-133x, which certification states and is
accompanied by documentation demonstrating that
(A) there has been a discharge, spillage,
uncontrolled loss, seepage or filtration of
hazardous waste on the parcel, and (B) all actions
to remediate the [site] PARCEL have been taken in
accordance with the remediation standards except
postremediation monitoring or natural attenuation
monitoring, and (C) the person or persons signing
the certification agree, in accordance with the
representations made in the form, to conduct
postremediation monitoring or natural attenuation
monitoring in accordance with the remediation
standards and if further INVESTIGATION AND
remediation [is] ARE necessary based upon the
results of such monitoring, to take further action
to INVESTIGATE THE PARCEL IN ACCORDANCE WITH
PREVAILING STANDARDS AND GUIDELINES AND TO
remediate the parcel in accordance with the
remediation standards;
(14) "Person" means person, as defined in
section 22a-2;
(15) "Remediate" means to contain, remove or
abate pollution, potential sources of pollution
and substances in soil or sediment which pose an
unacceptable risk to human health or the
environment and includes, but is not limited to,
the reduction of pollution by natural attenuation;
(16) "Licensed environmental professional"
means an environmental professional licensed
pursuant to section 22a-133x;
(17) "Environmental condition assessment
form" means a form prescribed and provided by the
commissioner and prepared by (A) the certifying
party under sections 22a-134 to 22a-134e,
inclusive, or (B) the owner of the property under
section 22a-133x which form describes the
environmental conditions at the parcel;
(18) "Pollution" means pollution, as defined
in section 22a-423;
(19) "Verification" means the rendering of a
written opinion by a licensed environmental
professional that an investigation has been
performed in accordance with prevailing standards
and guidelines and that the parcel has been
remediated in accordance with the remediation
standards;
(20) "Vehicle" means an automobile, bus,
truck or truck tractor, but does not mean an
aircraft, boat, railroad car or engine, or farm
tractor.
Sec. 2. Section 22a-133o of the general
statutes is repealed and the following is
substituted in lieu thereof:
(a) An owner of land may execute and record
an environmental use restriction under sections
22a-133n to 22a-133r, inclusive, on the land
records of the municipality in which such land is
located if (1) the commissioner has adopted
standards for the remediation of contaminated land
pursuant to section 22a-133k and adopted
regulations pursuant to section 22a-133q, (2) the
commissioner, or in the case of land for which
remedial action was supervised under section
22a-133y, a licensed environmental professional,
determines, as evidenced by his signature on such
restriction, that it is consistent with the
purposes and requirements of sections 22a-133n to
22a-133r, inclusive, and of such standards and
regulations, and (3) such restriction will
effectively protect public health and the
environment from the hazards of pollution.
(b) No owner of land may record an
environmental use restriction on the land records
of the municipality in which such land is located
unless he simultaneously records documents which
demonstrate that each person holding an interest
in such land or any part thereof, including
without limitation each mortgagee, lessee, lienor
[,] and encumbrancer, [pursuant to which the
holder of such interest] irrevocably subordinates
such interest to the environmental use restriction
PROVIDED THE COMMISSIONER MAY WAIVE SUCH
REQUIREMENT IF HE FINDS THAT THE INTEREST IN SUCH
LAND IS SO MINOR AS TO BE UNAFFECTED BY THE
ENVIRONMENTAL LAND USE RESTRICTION. An
environmental use restriction shall run with land,
shall bind the owner of the land and his
successors and assigns, and shall be enforceable
notwithstanding lack of privity of estate or
contract or benefit to particular land.
(c) Within seven days of executing an
environmental use restriction and receiving
thereon the signature of the commissioner or
licensed environmental professional, as the case
may be, the owner of the land involved therein
shall record such restriction and documents
required under subsection (b) of this section on
the land records of the municipality in which such
land is located and shall submit to the
commissioner a certificate of title certifying
that each interest in such land or any part
thereof is irrevocably subordinated to the
environmental use restriction in accordance with
said subsection (b).
(d) An owner of land with respect to which an
environmental use restriction applies may be
released, wholly or in part, from the limitations
of such restriction only with the commissioner's
written approval which shall be consistent with
the regulations adopted pursuant to section
22a-133q and shall be recorded on the land records
of the municipality in which such land is located
PROVIDED THE COMMISSIONER MAY WAIVE THE
REQUIREMENT TO RECORD SUCH RELEASE IF HE FINDS
THAT THE ACTIVITY WHICH IS THE SUBJECT OF SUCH
RELEASE DOES NOT AFFECT THE OVERALL PURPOSE FOR
WHICH THE ENVIRONMENTAL LAND USE RESTRICTION WAS
IMPLEMENTED AND DOES NOT ALTER THE SIZE OF THE
AREA SUBJECT TO THE ENVIRONMENTAL LAND USE
RESTRICTION. The commissioner shall not approve
any such release unless the owner demonstrates
that he has remediated the land, or such portion
thereof as would be affected by the release, in
accordance with the standards established pursuant
to section 22a-133k.
(e) An environmental use restriction shall
survive foreclosure of a mortgage, lien or other
encumbrance.
Sec. 3. Section 22a-452a of the general
statutes is repealed and the following is
substituted in lieu thereof:
(a) On and after June 3, 1985, any amount
paid by the Commissioner of Environmental
Protection pursuant to subsection (b) of section
22a-451 to contain and remove or mitigate the
effects of a spill OR TO REMOVE ANY HAZARDOUS
WASTE shall be a lien against the real estate on
which the spill occurred or from which it emanated
OR AGAINST REAL ESTATE WHERE NO SPILL OCCURRED BUT
FROM WHICH HAZARDOUS WASTE WAS REMOVED PROVIDED
SUCH HAZARDOUS WASTE DID NOT ENTER SUCH REAL
ESTATE THROUGH SURFACE OR SUBSURFACE MIGRATION.
ANY SUCH LIEN SHALL BE FILED in accordance with
the provisions of this section, except that such
lien against real estate which has been
transferred in accordance with the provisions of
sections 22a-134 to 22a-134d, inclusive, shall not
have priority over any previous transfer or
encumbrance. THE AMOUNT OF THE LIEN SHALL INCLUDE
ADMINISTRATIVE COSTS, AS SET FORTH IN SUBSECTION
(a) OF SECTION 22a-451, AS OF THE DATE OF THE
FILING OF THE LIEN. ANY COSTS INCURRED SUBSEQUENT
TO THE FILING OF THE LIEN MAY BE THE SUBJECT OF
ANOTHER LIEN.
(b) A lien pursuant to this section shall not
be effective unless (1) a certificate of lien is
filed in the land records of each town in which
the real estate is located, describing the real
estate, the amount of the lien, the name of the
owner as grantor and (2) the commissioner mails a
copy of the certificate to [such persons] THE
OWNER OF RECORD and to all other persons of record
holding an interest in such real estate over which
the commissioner's lien is entitled to priority.
Upon presentation of a certificate of lien, the
town clerk shall endorse thereon his
identification and the date and time of receipt
and forthwith record it in accordance with section
42a-9-409.
(c) (1) BEFORE FILING A LIEN UNDER THIS
SECTION, THE COMMISSIONER SHALL GIVE THE OWNER OF
THE PROPERTY ON WHICH THE LIEN IS TO BE FILED AND
MORTGAGEES AND LIENHOLDERS OF RECORD A NOTICE OF
HIS INTENT TO FILE A CERTIFICATE OF LIEN, AS
PROVIDED IN THIS SUBSECTION.
(2) THE NOTICE REQUIRED UNDER THIS SUBSECTION
SHALL BE SENT BY CERTIFIED MAIL OR SERVED IN THE
MANNER FOR SERVING CIVIL PROCESS AND SHALL PROVIDE
THE FOLLOWING: (A) A STATEMENT OF THE PURPOSE OF
THE LIEN; (B) A BRIEF DESCRIPTION OF THE PROPERTY
TO BE AFFECTED BY THE LIEN; (C) A STATEMENT OF THE
SUM OF THE EXPENSES INCURRED BY THE COMMISSIONER
IN CONTAINING, REMOVING OR MITIGATING THE EFFECTS
OF A SPILL OR REMOVING HAZARDOUS WASTE; (D) A
BRIEF STATEMENT OF THE FACTS DEMONSTRATING
PROBABLE CAUSE THAT THE PROPERTY IS THE SUBJECT OF
THE EXPENSES INCURRED BY THE COMMISSIONER; AND (E)
THE TIME PERIOD FOLLOWING SERVICE DURING WHICH ANY
RECIPIENT OF SUCH NOTICE WHOSE LEGAL RIGHTS MAY BE
AFFECTED BY THE LIEN MAY REQUEST A HEARING BEFORE
THE COMMISSIONER. A REQUEST FOR A HEARING UNDER
THIS SUBSECTION MUST BE RECEIVED BY THE
COMMISSIONER ON OR BEFORE THIRTY DAYS FOLLOWING
THE SERVICE OF THE NOTICE OF INTENT TO FILE A
CERTIFICATE OF LIEN. A HEARING HELD PURSUANT TO A
REQUEST FILED UNDER THIS SUBSECTION SHALL BE
LIMITED TO DETERMINING, IN A SUMMARY MANNER,
PROBABLE CAUSE FOR FILING THE CERTIFICATE OF LIEN.
(d) IN THE ABSENCE OF A TIMELY REQUEST FOR A
HEARING, THE CERTIFICATE OF LIEN MAY BE FILED ON
THE LAND RECORDS IMMEDIATELY. IF A HEARING IS
HELD, THE COMMISSIONER MAY ISSUE A DECISION
AUTHORIZING THE FILING OF A CERTIFICATE OF LIEN ON
THE LAND RECORDS, DENYING THE FILING OF A
CERTIFICATE OF LIEN OR AUTHORIZING THE FILING AND
MODIFYING THE AMOUNT OF THE CERTIFICATE OF LIEN.
(e) WITHIN THIRTY DAYS AFTER THE FILING OF
THE CERTIFICATE OF LIEN PURSUANT TO THIS SECTION,
ANY PROPERTY OWNER, MORTGAGEE OR OTHER LIENHOLDER
OF RECORD WHO HAS BEEN SERVED WITH A COPY OF THE
CERTIFICATE OF LIEN AND WHOSE LEGAL RIGHTS MAY BE
AFFECTED BY THE LIEN MAY FILE WITH THE
COMMISSIONER A REQUEST FOR A HEARING LIMITED TO
THE ISSUES OF A REDUCTION IN THE AMOUNT OF THE
LIEN OR A DISCHARGE OF THE LIEN IN ITS ENTIRETY.
IF REQUESTED, THE COMMISSIONER SHALL HOLD A
HEARING AS SOON THEREAFTER AS PRACTICABLE. THERE
SHALL BE NO STAY OF A DECISION BY THE COMMISSIONER
AUTHORIZING THE FILING OF A CERTIFICATE OF LIEN
UNLESS THE PARTY SEEKING A STAY HAS POSTED A
SURETY ACCEPTABLE TO THE COMMISSIONER IN AN AMOUNT
SUFFICIENT TO COVER THE FULL AMOUNT OF THE LIEN
PLUS INTEREST AND COSTS.
[(c)] (f) Except as provided in subsection
(a), such lien shall take precedence over all
transfers and encumbrances recorded on or after
June 3, 1985, in any manner affecting such
interest in such real estate or any part of it on
which the spill occurred or from which the spill
emanated, or real estate which has been included,
within the preceding three years, in the property
description of such real estate and is contiguous
to such real estate. This subsection shall not
apply to real estate which consists exclusively of
residential real estate, including but not limited
to, residential units in any common interest
community, as defined in section 47-202.
[(d)] (g) In the case of all other real
estate, including real estate which consists
exclusively of residential real estate, including
but not limited to, residential units in any
common interest community, as defined in section
47-202, the lien shall take precedence over any
transfer or encumbrance recorded after the
commissioner files with the town clerk notice of
intent to file a lien on the land records in the
town in which the real estate is located.
[(e)] (h) When any amount with respect to
which a lien has been recorded under the
provisions of this section has been paid or
reduced, the commissioner, upon request of any
interested party, shall issue a certificate
discharging or partially discharging such lien,
which certificate shall be recorded in the same
office in which the lien was recorded. The town
clerk shall note the recording of the certificate
of discharge upon the original notice of lien.
[Any action for reduction or discharge of such
lien or any appeal therefrom shall be in
accordance with the provisions of sections 49-35a
to 49-35c, inclusive, except that the forms
prescribed in section 49-35a shall be modified as
the court deems appropriate.] Any action for the
foreclosure of such lien shall be brought by the
Attorney General in the name of the state in the
superior court for the judicial district in which
the property subject to such lien is situated, or,
if such property is located in two or more
judicial districts, in the superior court for any
one such judicial district, and the court may
limit the time for redemption or order the sale of
such property or make such other or further decree
as it judges equitable.
Approved June 26, 1997