Calabrese v. McHugh

• Decision Date: 18 October 2001
• Docket Number: No. 3:98CV01603(GLG).,3:98CV01603(GLG).
• Citation: 170 F.Supp.2d 243
• Parties: Joseph CALABRESE, Sr., Plaintiff, v. Raymond F. MCHUGH, Jr., as Executor of the Estate of Raymond McHugh, Scovill Fasteners, Inc., and Saltire Industrial, Inc., Defendants.
• Court: U.S. District Court — District of Connecticut

170 F.Supp.2d 243

Joseph CALABRESE, Sr., Plaintiff, v.Raymond F. MCHUGH, Jr., as Executor of the Estate of Raymond McHugh, Scovill Fasteners, Inc., and Saltire Industrial, Inc., Defendants.

No. 3:98CV01603(GLG).

United States District Court, D. Connecticut.

October 18, 2001.

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Nicholas J. Harding, Mary A. McQueeney, Kosloff & Harding, West Hartford, CT, for Joseph Calabrese, Sr.

Thomas M. Armstrong, Dominic Fulco, III, Kevin Michael Tighe, Reid & Riege, P.C., Hartford, CT, for Raymond McHugh.

Thomas F. Harrison, Day, Berry & Howard, Hartford, CT, Peter R. Knight, LeBoeuf, Lamb, Greene & MacRae, Hartford, CT, Charles A. Perry, Rita A. Sheffey, Benjamin F. Johnson, IV, Hunton & Williams, Atlanta, GA, for Scovill Fasteners Inc. and Saltire Indus. Inc.

OPINION

GOETTEL, District Judge.

Plaintiff, Joseph Calabrese, Sr., is the owner of a 7.9-acre parcel of land located on Store Avenue, in Waterbury, Connecticut (the "Store Avenue Property"), which he acquired in 1973 and 1986 from Raymond McHugh, Sr.This property, once used as a landfill, has become contaminated with hazardous substances, and plaintiff now seeks to hold the defendants responsible for the costs of remediation.In a thirteen-count, amended complaint, plaintiff has asserted claims against defendants under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601 et seq., ("CERCLA"), and various state statutes, as well as numerous common-law theories of recovery.The defendants have moved for summary judgment on all counts of the amended complaint [Doc. # 41 & # 45].For the reasons discussed below, these motions will be GRANTED.

We begin our consideration of the voluminous papers filed by the parties by noting that plaintiff has dropped his claims in Count I brought under § 107 of CERCLA, 42 U.S.C. § 9607, and has conceded that his nuisance claims asserted in Count VII fail to state a claim upon which relief may be granted.See Pl.'s Objections to Mot. for Summ. J.[Doc. # 61 & # 59].Accordingly, summary judgment will be granted in favor of defendants on Counts I and VII of the First Amended Complaint.

As to the remaining counts, a brief discussion of the history of the Store Avenue Property is necessary.The following background facts are not disputed.

Background

Going back to 1811, a company called Scovill Manufacturing Company¹ manufactured brass products such as buttons, belt buckles, clasps, and other small items in Waterbury, Connecticut.From approximately 1919, Scovill Manufacturing used a 30-acre parcel, located less than a mile from its plant, for disposing of ash, cinder and other materials from its manufacturing operations (the "Scovill Landfill").The Store Avenue Property was part of this 30-acre landfill.

Plaintiff grew up in a house located next to the Store Avenue Property.He describes it as a "big hole, ... a swamp," which covered nearly the entire 7.9 acres except around the perimeter.Pl.'s Dep.at 71-72.Plaintiff recalls that, until 1972 or 1973, green Scovill Manufacturing trucks would dump materials, including ash, cinders, brass, and mirrors onto the property on nearly a daily basis.Pl.'s Dep.at 73, 76, 86-88, 97.Plaintiff also recalls construction materials being dumped there.Id. at 88-89.By the time plaintiff acquired any interest in the property, the land filling operation was complete, sand had been brought in to cover the landfill, and the land was level.Pl.'s Dep.at 100.

Beginning in 1941, Scovill Manufacturing began selling off portions of the Scovill Landfill.The first 23 acres that were sold were developed as residential property with condominiums, apartments and housing for the elderly.On July 5, 1972, Scovill Manufacturing conveyed the last 7.9-acre parcel, the Store Avenue Property, to the Scovill Foundation, Inc., which on the same day conveyed the property to Raymond McHugh, Sr.The recorded warranty deed from Scovill Foundation to Raymond McHugh, Sr., contained the following language:

The Grantee has knowledge that Scovill Manufacturing Company is dumping and has the right to continue to dump ashes and other material on the aforesaid property until June 30, 1974.

The Grantee, for himself, his heirs and assigns, by acceptance of this deed, agrees that he will not make any claim for loss or damage against Scovill Manufacturing Company or the Grantor based on use by Scovill Manufacturing Company, or its successors, of aforesaid land, or maintain any suit based on such use, and expressly recognizes that said land is and will continue to be used by Scovill Manufacturing Company as a dump for fly-ash, cinders and other refuse from its manufacturing operations.

Substantially similar language was contained in the warranty deed from Scovill Manufacturing to Scovill Foundation.

Subsequently, on April 11, 1973, McHugh, Sr., conveyed to plaintiff by quit claim deed an undivided one-half interest in 0.995 acres of the Store Avenue Property, with improvements thereon.

Pursuant to a quit claim deed dated August 30, 1973, McHugh, Sr., conveyed to plaintiff an undivided one-half interest in the entire remaining Store Avenue Property.

A Certificate of Title dated July 10, 1984, prepared by a title search company for plaintiff's attorney, noted the covenant in the deed from Scovill Foundation to McHugh, Sr., quoted the language of the covenant, and advised that "[t]his covenant may affect said premises."

On January 31, 1986, by warranty deed, McHugh, Sr., conveyed the remaining one-half interest in the Store Avenue Property to plaintiff.Plaintiff admits that he was aware of the Certificate of Title prior to his acquisition of the remaining one-half interest, although there is no evidence in the record before us that plaintiff had actual knowledge of the release set forth in the Scovill Foundation/McHugh deed.SeePl.'s Dep.at 62-63.Plaintiff also concedes that he made no inquiries concerning the environmental condition of the property prior to his acquisition of any portion of the Store Avenue Property.

All of the deeds conveying the Store Avenue Property to plaintiff were appropriately recorded.

In 1988, plaintiff began development of the Store Avenue Property for the construction of a 195-unit apartment complex for the elderly.In March, 1989, in response to citizen complaints about potential wetlands violations, the State of Connecticut Department of Environmental Protection("State DEP") inspected the Store Avenue Property.Initially, their tests revealed no contamination.However, further tests revealed twelve capacitors² on the surface of excavation piles at the site.The metal casings of some of the capacitors had rusted, allowing polychlorinated biphenyl contaminated oil ("PCB's") to leak into the surrounding soil.Soil samples taken from the area indicated potentially extensive contamination.The State DEP asked plaintiff to cease construction on the Store Avenue Property, to restrict access to the property due to the PCB contamination, and to remove the capacitors.The City of Waterbury Department of Public Health also sent plaintiff several letters ordering him to abate the hazard caused by the high levels of PCB's.

As of March 31, 1989, plaintiff ceased all construction activities on the Store Avenue Property, and never resumed construction.Pl.'s Dep.at 147.Plaintiff testified that in response to orders from the DEP, he removed the capacitors and did everything he was required to do, except for a few "minor things" such as failing to label the barrels in which he disposed of the capacitors.Pl.'s Dep.at 80-81, 148-50.The State DEP then referred the Store Avenue Property to the United States Environmental Protection Agency("EPA") for PCB enforcement pursuant to the Toxic Substance and Control Act Cooperative Grant Agreement.

On May 10, 1989, the State DEP and plaintiff entered into a consent order that required plaintiff to cease all construction activities and to submit a written plan to address the potential dangers at the construction site.Plaintiff retained an environmental consulting firm, HRP Consultants, to investigate the Store Avenue Property for possible environmental contamination.In July, HRP Consultants submitted an environmental assessment to the State DEP on the contamination that they found at the Store Avenue Property, which included the presence of PCB's and other contaminants in the soil and ground-water.See HRP Study.

On October 12, 1989, the State DEP issued an Enforcement Order against plaintiff requiring him, inter alia, to investigate the wastes on the site and the potential impact of such wastes on human health and the environment and to perform remedial actions approved by the DEP Commissioner to prevent and abate soil, air, ground water, and surface water pollution.According to plaintiff, he did not comply with this order.Pl.'s Dep.at 153.

In June, 1990, the EPA filed an administrative complaint against plaintiff's construction company based upon PCB contamination at the Store Avenue Property.

Plaintiff testified in his deposition that after he had the testing done on the property and removed the capacitors, he had done all that he could afford to do.He was informed that further testing was required.According to his testimony, he responded:

"I cannot afford it anymore, I'm broke," and a little while after that I went Chapter 11, and that was the end of it, and that's how that started.I wanted to get this thing so I could finish the project because I could have made money doing it, and I was told I could not go on the site anymore.

Pl.'s Dep.at 84.Plaintiff testified that the last time he went to the property was when he had to give the EPA permission to go on the property to excavate the soil.Id.

On December 21, 1993, Raymond McHugh, Sr., died and Raymond McHugh, Jr.,...