Cadlerrock Prop. Joint Venture v. Comm'r of Envtl. Protection

• Decision Date: 18 July 2000
• Court: Connecticut Supreme Court
• Parties: (Conn. 2000) CADLEROCK PROPERTIES JOINT VENTURE, L.P. v. COMMISSIONER OF ENVIRONMENTAL PROTECTION ET AL. (SC 16170)

757 A.2d 1 (Conn. 2000)

CADLEROCK PROPERTIES JOINT VENTURE, L.P. v. COMMISSIONER OF ENVIRONMENTAL PROTECTION ET AL.

(SC 16170)

THE SUPREME COURT OF THE STATE OF CONNECTICUT

Argued January 20

July 18, 2000

{counsel} Jill Hartley, for the appellant (plaintiff). Patricia A. Horgan, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).

McDonald, C. J., and Norcott, Palmer, Sullivan and Vertefeuille, Js.

Vertefeuille, J.

OPINION

The plaintiff, Cadlerock Properties Joint Venture, L.P. (Cadlerock), appeals from the judgment of the trial court dismissing its administrative appeal from the decision of the defendant department of environmental protection (department) in which the named defendant, the commissioner of environmental protection (commissioner),¹ issued an abatement order regarding the plaintiff's real property located in both Ashford and Willington. The order, which was issued on August 15, 1997, pursuant to Connecticut's Water Pollution Control Act; General Statutes §§ 22a-416 et seq.;² and the Solid Waste Management Act; General Statutes §§ 22a-207 et seq.;³ alleged that the plaintiff was maintaining a facility that was polluting state waters and further alleged that the plaintiff was maintaining a solid waste disposal facility on its property without a permit. The commissioner ordered Cadlerock to undertake extensive investigatory actions regarding the soil, groundwater and solid waste pollution, to undertake remedial actions to abate such pollution, to monitor the effectiveness of those remedial actions, and to remove all solid waste on the property.

The plaintiff appealed from the commissioner's decision to issue the abatement order. On October 23, 1998, after conducting public hearings, the administrative hearing officer rejected the plaintiff's claim of selective enforcement and affirmed the commissioner's order. The plaintiff appealed from the administrative decision to the Superior Court pursuant to General Statutes §§ 4-183,⁴ part of the Uniform Administrative Procedure Act (UAPA). General Statutes §§ 4-166 et seq. The trial court upheld the hearing officer's decision and dismissed the appeal, and the plaintiff appealed. We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. The plaintiff is the present owner of a 335 acre parcel of land located in Ashford and Willington. The site contains two ponds and some intermittent watercourses; one third of the site constitutes wetlands.

The groundwater on this site is classified as "GA" and thus, should be suitable to serve as a source of public or private water supply without treatment and should contain no chemical or biological constituents other than those of natural origin, according to state water quality standards. See General Statutes §§ 22a-426.⁵ The department received complaints about potential pollution on the site as early as 1977. Both the department, specifically its bureau of water management, and private environmental analysts conducted site investigations between 1991 and 1997 that revealed significant sources of soil, groundwater and solid waste pollution.

The site investigations revealed two principal areas of contamination. The northwest disposal area, consisting of approximately one-quarter acre of land in the northwest portion of the plaintiff's 335 acre property, had soil stained a blue-green color, with solid waste deposited on the surface and buried underground, and no vegetation. Soil tests revealed high levels of lead, copper, barium and cadmium, pollutants that pose a threat to human health and to groundwater quality. During a department investigation in 1992, Benjamin Schilberg acknowledged in writing that approximately thirty years earlier, he had leased this small portion of the site that later became known as the northwest disposal area. He admitted that he had burned insulated copper wire at the location to recover copper for resale, thereby causing copper oxidation of the soil.

A second contaminated area on the plaintiff's property is located in the south central portion of the site along Route 44. A restaurant and scrap metal business were operated on this site until about 1980, when the buildings were substantially damaged by fire. In 1990, Ashford Development Corporation (Ashford), then the owner of the property, demolished the burned out structures and disposed of the burned debris on this site without a permit. Solid waste has been observed on the surface and buried underground, and various contaminants (i.e., total petroleum hydrocarbons and volatile organic compounds) have been found in the soil. The hearing officer, after hearing uncorroborated expert testimony to the same effect, concluded that the pollution at the south central disposal area posed a threat to human health and was reasonably likely to pollute the groundwater.

The department never pursued any enforcement action nor did it discuss voluntary remediation with Schilberg.⁶ In 1993, the department tried unsuccessfully to persuade Ashford to address the pollution of the site voluntarily. The department did not pursue any enforcement action against Ashford because of a lack of resources within the department. In 1996, Cadle Properties of Connecticut, Inc. (Cadle Properties), obtained the site. After unsuccessfully trying to convince Cadle Properties to remediate voluntarily, the department issued an abatement order on February 26, 1997.⁷ On August 15, 1997, the department withdrew that order and issued an abatement order to the plaintiff, an affiliate of Cadle Properties, upon learning that the property had been transferred to the plaintiff.⁸

The plaintiff filed an administrative appeal from the abatement order, claiming that the commissioner had engaged in selective enforcement in that Schilberg already had admitted in writing that he was responsible for polluting a portion of the site, but was not subject to any enforcement action. An administrative hearing officer conducted public hearings on November 24, November 25, December 3, December 11, and December 17, 1997. During the administrative hearings, Elsie Patton, the assistant director of the permitting, enforcement and remediation division in the department's waste management bureau, testified that the department did not pursue Schilberg because he was responsible only for a portion of the pollution and pursuing enforcement action against both Schilberg and the plaintiff, the current property owner, would have delayed remediation of the entire site.⁹ The hearing officer rejected the selective enforcement defense and affirmed the commissioner's order. On the plaintiff's appeal, the trial court affirmed that decision and dismissed the plaintiff's appeal.

The plaintiff appealed from the judgment of the trial court to the Appellate Court. Thereafter, we transferred the appeal to this court pursuant to General Statutes §§ 51-199 (c) and Practice Book §§ 65-1. The plaintiff claims: (1)that the trial court improperly upheld the administrative hearing officer's decision that the plaintiff failed to establish the affirmative defense of selective enforcement and improperly concluded that even if there were selective enforcement, the abatement order would not have been rendered void; (2) that the trial court improperly upheld the hearing officer's evidentiary rulings (a) excluding from evidence a newspaper article quoting a department staff person as saying it was the department's policy to pursue all polluters, and (b) preventing the plaintiff from discovering three internal department memoranda concerning prior enforcement action with respect to the site on the ground that the documents were protected by the attorney-client privilege and (c) not reaching the hearing officer's evidentiary ruling allowing into evidence testimony allegedly regarding the parties' settlement negotiations and the plaintiff's actions in response to the administrative order; and (3) that the trial court improperly affirmed the hearing officer's decision despite the fact that it was clearly erroneous in view of the evidence in the record. We affirm the judgment of the trial court.

We begin by articulating the applicable standard of review in an appeal from the decision of an administrative agency. "Judicial review of [an administrative agency's] action is governed by the [UAPA] . . . and the scope of that review is very restricted. . . . New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988). With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). Judicial review of the conclusions of law reached administratively is also limited. The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Id. Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Id. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. New Haven v. Freedom of Information Commission, supra, 774." (Citation omitted; internal quotation marks omitted.) State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 487, 493-94, 709 A.2d 1129 (1998).

We also have held that an exception is made "when a state agency's...