• Department of Energy and Environmental Protection
  • Department of Energy and Environmental Protection
  • SRD-222
  • Mar 21 2013 (Date Decided)
  • Deshais, Hearing Officer

Even if a president of a limited liability company designates corporate decision making to another individual, the president can be found jointly responsible for "maintaining" environmental contamination. In response to a 1988 accident on property adjacent to the subject property, the Department of Environmental Protection investigated the subject property and issued pollution abatement orders to the prior owner, the Smith Trust. The 1988 order was recorded on the land records. The Smith Trust transferred the property to Vorlon Holding LLC, which leased the property to The Narn. Richard Smith manages The Narn. Jody Smith is the president and owner of Vorlon. In 2012, the commissioner of the Department of Energy and Environmental Protection ordered Vorlon and the Smiths to remediate soil and water that allegedly were polluted with volatile compounds. Connecticut General Statutes §22a-432 provides that the commissioner may issue an order, if the commissioner finds that any person is "maintaining a facility or condition which reasonably can be expected to create a source of pollution to the waters of the state." In a 1993 decision, Starr v. Commissioner of Environmental Protection, the Connecticut Supreme Court wrote, "the legislature intended that the word `maintaining' in §22a-432 be interpreted liberally to include within its purview a landowner who has failed to abate pollution existing on his or her land . . . regardless of blame for the creation of the condition." The department was not persuaded that legal responsibility has been transferred to The Narn, as a result of the lease. The alleged contamination existed before the tenant signed. Jody Smith failed to prove Richard Smith was the sole decision maker and only individual responsible. Jody Smith, as the only member and president of Vorlon, possesses final decision making authority. "Although she tried to separate ownership from operations, and claimed she left decision-making regarding the environmental issues on the Property to Mr. Smith," wrote the department, "Ms. Smith cannot ignore or abdicate her responsibility." The department concluded that Vorlon and the Smiths were jointly responsible to remediate the pollution. Jonathan Klein represented Vorlon and the Smiths. John Looney represented the department.