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statutes  is  repealed  and   the   following   is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