Rocque v. Light Sources, Inc.

• Decision Date: 13 September 2005
• Docket Number: No. 17261.,17261.
• Citation: 881 A.2d 230,275 Conn. 420
• Court: Connecticut Supreme Court
• Parties: Arthur J. ROCQUE, Jr., Commissioner of Environmental Protection, v. LIGHT SOURCES, INC., et al.

881 A.2d 230

275 Conn. 420

Arthur J. ROCQUE, Jr., Commissioner of Environmental Protection, v. LIGHT SOURCES, INC., et al.

No. 17261.

Supreme Court of Connecticut.

Argued February 8, 2005.

Decided September 13, 2005.

Nicole M. Fournier, with whom was Hugh F. Keefe, New Haven, for the appellants (defendants).

Patricia A. Horgan, assistant attorney general, with whom were Mary K. Lenehan, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Kimberly P. Massicotte, assistant attorney general, for the appellee (plaintiff).

SULLIVAN, C.J., and BORDEN, KATZ, PALMER and VERTEFEUILLE, Js.

VERTEFEUILLE, J.

This appeal arises out of the trial court's judgment ordering the defendants to clean up their contaminated properties and surrounding areas pursuant to state hazardous waste and water pollution control statutes and regulations. The defendants appeal from the trial court's judgment ordering them to remediate areas that had become contaminated with mercury, and assessing civil penalties for their violations of state environmental statutes. The principal issues on appeal are whether the trial court: (1) improperly modified its judgment by lowering the mercury concentration level at which the defendants' cleanup responsibilities were triggered more than four months after rendering the original judgment; (2) improperly determined that the defendants had violated the Water Pollution Control Act (act), General Statutes § 22a-216 et seq., during certain time periods when there was no direct evidence of violations of the act; (3) improperly imposed penalties on the defendants for violations of the act following the initiation of this action and during the time that a temporary injunction was in effect, despite the defendants' remediation efforts during those periods; (4) assessed excessive penalties for violations of the act when there was no evidence that the defendants' activities were "flagrant and knowing"; Keeney v. L & S Construction, 226 Conn. 205, 216-17, 626 A.2d 1299 (1993); (5) improperly imposed a $5000 per month penalty for violations of the act at the defendants' property located at 11 Cascade Boulevard in Milford beginning in 1995, when that penalty should have been imposed after the issuance of a temporary injunction in 1999; and (6) assessed excessive penalties for the defendants' violations of state hazardous waste management regulations. We reverse the judgment of the trial court with respect to the defendants' fifth claim and affirm the judgment in all other respects.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff, Arthur J. Rocque, Jr., is the commissioner of environmental protection (commissioner) and is charged with the supervision and enforcement of the state's environmental statutes. The defendants, Light Sources, Inc. (Light Sources), LS Neon, Inc. (LS Neon), and LCD Lighting, Inc. (LCD Lighting), were at all times relevant to this action Connecticut corporations in the business of manufacturing fluorescent and specialty light bulbs.¹ The defendants operated light bulb manufacturing facilities at 37 Robinson Boulevard in Orange, and at 11 Cascade Boulevard and 70 Cascade Boulevard in Milford.²

The defendants' manufacturing process involves coating the insides of light bulbs with phosphor and injecting them with mercury. All of the light bulbs manufactured by the defendants are produced using this process, and, therefore, yield mercury as a waste product. As part of their operations, the defendants are required to dispose of those light bulbs that do not meet their specifications (off-spec bulbs). It is the disposal of these off-spec bulbs that specifically generates the mercury waste that resulted in the contamination of the defendants' properties and surrounding areas in the present case. From the beginning of their operations in 1983, through February, 1994, the defendants disposed of off-spec bulbs in the municipal trash at their manufacturing facilities. After February, 1994, the defendants disposed of the off-spec light bulbs by crushing them in on-site glass compactors. In 1996, the defendants began sending their off-spec bulbs to a lamp recycling company for disposal.

Following discovery of mercury contamination on and around the defendants' properties in 1998,³ the commissioner brought this action against the defendants, alleging violations of the act, as well as violations of the Connecticut Environmental Protection Act, General Statutes § 22a-16 et seq., and § 22a-449 (c)-100 et seq. of the Regulations of Connecticut State Agencies, which govern hazardous waste management. The commissioner sought temporary and permanent injunctions requiring the defendants to remediate the mercury contamination on and around all three sites. Following a hearing in 1999, the trial court issued a temporary injunction requiring the defendants to cease the discharge of mercury and to investigate and mitigate or remediate the resulting pollution on all three sites. In April, 2003, the trial court issued a permanent injunction directing the defendants to remediate all soil and sediments with a mercury concentration of 1 part per million (ppm) or greater to a concentration of 0.2 ppm or less.

The trial court found the following relevant facts with regard to the effects of mercury contamination. Mercury is a toxic substance that poses a serious threat to all living organisms, and, specifically, can have "serious detrimental effects on human health." When combined with organic molecules, mercury becomes a soluble organic compound that can travel easily through water. Mercury is most toxic when it combines with bacteria to form methylmercury, an organic compound that can accumulate easily in the tissues of living organisms. The methylation of mercury is enhanced in marine or salt water environments. Mercury can have an adverse impact on the mortality rates and reproductive abilities of aquatic life. The commissioner has set the acute toxicity standard for mercury for freshwater aquatic life at 0.0021 ppm, and the chronic toxicity standard for freshwater aquatic life at 0.000012 ppm.

The trial court found the following relevant facts specifically with regard to the affected areas. The 70 Cascade Boulevard site is bordered by a wetland area to the west. An unnamed stream crosses the wetland area under Cascade Boulevard and leads to another wetland area, which is an unnamed swamp. The unnamed stream ultimately flows to the Oyster River, approximately five miles from the 70 Cascade Boulevard site. A catch basin in front of the site discharges to the crossing point of the stream and the wetland area under Cascade Boulevard. The 11 Cascade Boulevard site is located one quarter of a mile away from the 70 Cascade Boulevard site. Storm water from the 11 Cascade Boulevard site discharges into a catch basin on that property, which also ultimately empties into the unnamed stream.

The defendants' manufacturing activities caused the sediment in the wetlands and the bodies of water surrounding the 70 Cascade Boulevard site and the 11 Cascade Boulevard site to become contaminated with mercury. The ground and surface water at and around both sites is classified as class GA groundwater and class A surface water, which designates a public or private drinking water supply. The concentration of mercury in the sediment collected from the unnamed stream near the 70 Cascade Boulevard site was 3550 times greater than the background sediment samples collected upgradient of the site. A sample taken from the unnamed stream indicated that the mercury level in the stream was 5 ppm, approximately twice the level of the most contaminated pond in Connecticut. Due to the presence of mercury in the sediment around the Cascade Boulevard sites, every rain storm or other disturbance has caused and will continue to cause mercury to discharge into the surrounding waters. Preliminary testing revealed that mercury is being distributed through the storm water to broader wetland areas. Contaminated sediment on and around the Cascade Boulevard sites is an ongoing source of pollution to the wetlands and other bodies of water in those areas.

Fish tissue sampling performed in the unnamed swamp close to the Cascade Boulevard sites revealed "consistently higher levels" of mercury than the levels found from fish tissue sampling conducted downstream of the swamp. In addition, the septic systems at both the 70 Cascade Boulevard and 11 Cascade Boulevard sites contain mercury-bearing sludge, which will continue to be present in the septic systems at both sites until it is removed. Sludge samples taken from the septic tank at the 11 Cascade Boulevard site showed a mercury level of 570 ppm. Sludge samples taken from the septic tank at the 70 Cascade Boulevard site showed mercury levels of 200 and 450 ppm. The highest mercury concentration detected in background sediment samples collected from areas around the 70 Cascade Boulevard site was 0.05 ppm. The mercury waste from the septic systems at both sites discharged into the waters of the state.

The 37 Robinson Boulevard site is bordered on the east by a wetland, and by ponds to the north and south. The bodies of water surrounding the 37 Robinson Boulevard site are also classified as class GA and class A with regard to groundwater and surface water, respectively. The storm water collection system and catch basins on the 37 Robinson Boulevard site discharge into a small pond near the site. The pond discharges into a tributary of the Oyster River. The Oyster River and Long Island Sound are located less then one mile from the 37 Robinson Boulevard site. The defendants' manufacturing activities at that site caused the discharge of mercury into the Oyster River tributary and created a risk of contamination of the Oyster River and Long Island Sound.

The trial court also determined that the defendants had failed to...