Is a landowner who digs up and hauls away contaminated soil that is a hazardous waste a 'generator' owing Connecticut's hazardous waste assessment, even if the pollution predates their ownership?

Plain-English summary

A company bought a former factory and its land from two individuals. Because of the site's long industrial history, the sellers couldn't file a "negative declaration" (a clean-site certification), so under Connecticut's Property Transfer Act the buyer certified to the DEP Commissioner that it would contain and clean up any hazardous-waste contamination. When the company later dug into the ground, the soil itself was so contaminated that it qualified as a hazardous waste under federal law, and moving it off-site required a RCRA manifest.

The question: does digging up and hauling away that already-polluted soil make the company a "generator" of hazardous waste, so that it owes Connecticut's hazardous waste assessment under § 22a-132 — even though the pollution happened before the company owned the land?

DRS said yes. The statute imposes the assessment on each "generator of hazardous waste required to file a manifest" under RCRA. "Generator" isn't defined in the statute, but state and federal regulations define it two ways (either prong is enough): someone "whose act or process produces hazardous waste," or "whose act first causes a hazardous waste to become subject to regulation" (Conn. Agencies Regs. § 22a-449(c)-100(b)(1); 40 C.F.R. § 260.10). DRS held the company fit both:

• The contaminated soil is itself a hazardous waste. The company's act of excavating and removing it — requiring a manifest to transport it away — is an "act or process producing hazardous waste," no less than a factory whose operations produce waste.
• And because nothing indicates anyone else had ever brought that soil under regulation, the company's excavation and removal is the act that "first caused" the soil to become subject to regulation.

DRS contrasted the Connecticut Supreme Court's decision in Enthone, Inc. v. Bannon (1989), where the taxpayer was treated as a "generator" only by a regulatory fiction. Here, unlike Enthone, the company's own act actually produced the regulated waste and was the first to trigger regulation — so it squarely owes the assessment.

What this means for you

Buyers and developers of contaminated (brownfield) sites

If you acquire a site with legacy contamination and your cleanup involves excavating soil that qualifies as hazardous waste, the digging-and-hauling step can make you the "generator" for Connecticut's hazardous waste assessment — even though someone else caused the pollution years earlier. Budget for the assessment as part of remediation costs.

Remediation contractors and consultants

When soil crosses the line into hazardous waste and needs a manifest to leave the site, generator status (and the assessment) attaches to the party whose act produces/first-regulates it. Clarify in your contracts who bears that assessment.

Why "someone else polluted it" doesn't help

The assessment follows the act that produces or first regulates the waste, not the original polluter's identity. Pre-existing contamination doesn't shift the generator label away from the person who excavates and removes the now-hazardous soil.

Common questions

Q: I didn't cause the pollution — how am I the "generator"?
A: Because the contaminated soil is itself a hazardous waste, and your act of excavating and removing it (needing a RCRA manifest) either produces that waste or first brings it under regulation. Either prong of the "generator" definition is enough, and DRS found both were met.

Q: Is this the sales tax?
A: No. This is Connecticut's hazardous waste assessment under Conn. Gen. Stat. § 22a-132, a separate tax on generators of hazardous waste, not the sales and use tax.

Q: Didn't Enthone v. Bannon say otherwise?
A: DRS distinguished Enthone. There, the taxpayer counted as a "generator" only through a regulatory fiction. Here the company's own excavation actually produced the regulated waste and was the first act to trigger regulation, so it fit the definition directly — under both prongs.

Q: Can I rely on this ruling for my own site?
A: Not as your own. A DRS Ruling binds the Department only for the taxpayer and facts it addressed. It shows the reasoning, but your facts may differ, and DRS can later supersede or obsolete it.

Citations and references

Statutes, regulations, and case law:

• Conn. Gen. Stat. § 22a-132 (hazardous waste assessment on generators required to file a RCRA manifest)
• Conn. Gen. Stat. § 22a-134(5) (negative declaration); § 22a-134a(c) (Transfer Act certification to DEP Commissioner)
• 42 U.S.C. § 6903(5) (hazardous waste), § 6903(12) (manifest); Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq.
• Conn. Agencies Regs. § 22a-449(c)-100(b)(1) (formerly § 22a-449(c)-1(c)); 40 C.F.R. § 260.10 (definition of "generator")
• Enthone, Inc. v. Bannon, 211 Conn. 655, 560 A.2d 971 (1989)

Source

• Landing page: Connecticut DRS Rulings
• Ruling: Ruling 94-20

Original ruling text

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

generator of hazardous waste required to file a manifest pursuant to the Resource Conservation and Recovery Act of 1976 (42 U.S.C. [§ ]6901 et seq.), as from time to time amended, and regulations adopted by the department of environmental protection ....

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

[the term "generator" is not defined in the statutes. State and federal environmental regulations, however, both define a "generator" of hazardous waste as one "whose act or process produces hazardous waste ... or whose act first causes a hazardous waste to become subject to regulation." (Emphasis added.) Regs., Conn. State Agencies §22a-449(c)-1(c) [now, Conn. Agencies Regs. § 22a-449(c)-100(b)(1)]; 40 C.F.R. §260.10.

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