Carothers v. Capozziello, s. 13745

• Decision Date: 22 May 1990
• Docket Number: 13747,13749,13748,Nos. 13745,13746,s. 13745
• Citation: 215 Conn. 82,574 A.2d 1268
• Court: Connecticut Supreme Court
• Parties: Leslie CAROTHERS, Commissioner of Environmental Protection v. Thomas CAPOZZIELLO et al.

Page 1268

574 A.2d 1268

215 Conn. 82

Leslie CAROTHERS, Commissioner of Environmental Protection v. Thomas CAPOZZIELLO et al.

Nos. 13745, 13746, 13747, 13748, 13749.

Supreme Court of Connecticut.

Argued Feb. 7, 1990.

Decided May 22, 1990.

Gary A. Mastronardi, Bridgeport, for the appellants-appellees in the first four cases and the appellees in the fifth case (named defendant et al.).

Robert B. Teitelman, Asst. Atty. Gen., with whom, on the brief, was Clarine Nardi Riddle, Atty. Gen., for the appellee-appellant in the first four cases and the appellant in the fifth case (plaintiff).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

SHEA, Associate Justice.

These cases, alleging various improprieties in the disposal of building demolition debris, were brought by the plaintiff, Leslie Carothers, the commissioner of environmental protection (commissioner), against the defendants, Thomas Capozziello, Bridgeport Wrecking Company, Inc., and Bridgeport Etc., Inc. (defendants), ¹ and were consolidated for trial before the Hon. John M. Alexander, state trial referee, exercising the powers of the Superior Court. Seeking, inter alia, injunctive relief and civil penalties pursuant to General Statutes § 22a-226, ² the commissioner alleged: (1) in the first case, that the defendants had (a) violated the terms of a final consent order entered into between herself and the defendants and (b) operated a solid waste facility, as defined in General Statutes § 22a-207(4), ³ without a permit "by arranging for the dumping of wood and other demolition waste" on property in the city of Bridgeport; and (2) in the third case, that the defendants had failed to, or would not, in the future, comply with several provisions of a final decision and order, issued by the commissioner, related to the disposal of demolition waste on property in the city of Bridgeport. ⁴ In both cases, the trial court rendered judgment in favor of the commissioner, from which the defendants have appealed and the commissioner has cross appealed.

In the second, fourth and fifth cases, the commissioner alleged that the defendants had "dumped wood and other demolition waste" and had operated a solid waste facility, as defined in § 22a-207(4), on property not owned by the defendants in the towns of Trumbull and Ansonia and the city of Bridgeport, respectively. An amended prayer for relief in each case requested that the trial court order the imposition of civil penalties pursuant to General Statutes § 22a-250(c) and (e). ⁵ In the second and fourth cases the trial court rendered judgment in favor of the commissioner, from which the defendants have appealed and the commissioner has cross appealed. In the fifth case the trial court rendered judgment in favor of the defendants, from which the commissioner has appealed. We find error on the appeals in the second and fourth cases, and no error on the appeals in the first, third and fifth cases. With respect to the cross appeals on the first and third cases, we remand for further articulation concerning the stay of execution of the judgment.

I

The trial court found the following facts relating to the first and third cases involving the property in Bridgeport. The commissioner's allegations concerned the defendants' placement of demolition waste on property owned by the Consolidated Rail Corporation (Conrail) and on adjoining property leased by the defendants for use in their demolition business. Both parcels were located on Singer Avenue, in the city of Bridgeport. After the defendants had completed demolition of a building, the generated debris was often brought to the Singer Avenue properties rather than to a certified landfill. Portions of this debris were then transported to other locations, when and if such locations were found by the defendants. The trial court noted that the "accumulation of demolition debris at Singer Avenue at the [time of trial could] be described as tremendous," and, after viewing the property in question, that the debris was "very high, unsightly, and [had] been found by the Commissioner to cause imminent and substantial danger to the environment." Water supply and sewer lines belonging to United Illuminating Company, running under a portion of the Conrail property by virtue of an easement, were damaged as a result of the accumulation of demolition debris. Evidence was presented that the leaching effect of the debris would affect groundwater in the area. Finally, the trial court found that some of the debris on the Conrail property had been deposited by persons other than the defendants, but concluded, nevertheless, that such debris was "of minor consequence," and that it was "not unfair to require [the defendants] to take the entire responsibility" for all of the debris.

As a result of these activities, the commissioner, on February 22, 1988, issued two orders to the defendants pursuant to General Statutes § 22a-7. ⁶ The order in the first case, No. SW-258, commanded the defendants "to wholly and absolutely cease and desist from further disposal or transfer of solid waste" at the Conrail property. ⁷ On March 1, 1988, this order was made a final consent order as agreed by both the defendants and the commissioner. The order in the third case, No. SW-259, commanded the defendants "to correct [several] violations and to bring the [Conrail property] into full compliance with applicable statutory and regulatory requirements," in accordance with a remedial schedule established by the commissioner. ⁸

In April, 1988, public hearings, at which the defendants appeared, were held concerning order No. SW-259; see General Statutes § 22a-225(b); ⁹ after which an adjudicator in the department of environmental protection made written findings of fact and conclusions of law, determining that: (1) the defendants had "operated and maintained without a permit, a bulky solid waste land disposal facility and transfer station" at the Singer Avenue property; (2) in order to protect United Illuminating Company's water and sewer lines, it was necessary that "the bulky waste and solid waste deposited on the [Conrail property] by the [defendants] must be removed ... with all due diligence and as soon as practical to safeguard the health, safety, and welfare of the people of this state"; and (3) removal of the "unauthorized waste" would require "the full cooperation of both Conrail, as the site's owner, and [United Illuminating Company] as a holder of rights of way." On the basis of these conclusions, the adjudicator, on July 14, 1988, affirmed the commissioner's prior order and commanded that the defendants "[i]mmediately stop and do not resume waste disposal and/or waste transfer operations" at the Conrail property or at the property leased by the defendants. In addition, the final order; see General Statutes § 22a-225(c); ¹⁰ set forth a comprehensive compliance schedule requiring the defendants to remove the waste deposited on the Conrail property. ¹¹

On the basis of the evidence presented at a trial conducted in December, 1988, and January, 1989, the court found ample support for the commissioner's conclusion that the defendants' activities at the Singer Avenue properties would "give rise to imminent and substantial damage to the environment or to [the] public health." In both cases, the court concluded that the defendants had violated the terms of the orders issued by the commissioner. In fact, the court noted, the defendants' violations of both orders had been "flagrant." The court ordered, therefore, in the first case, that the defendants: (1) "refrain from the further disposal or transfer of solid waste at the Conrail Property ... and on water and sewer easements," under a civil penalty of $100,000; (2) "pay to the State of Connecticut, in accordance with [§ 22a-226] ... the sum of $10,000 for each day of violation, beginning March 11, 1988," a period of twenty-five days; and (3) pay a civil penalty of $50,000 rather than $250,000 if orders entered in the case were timely complied with and if the solid waste was removed from the Conrail property within five months from the date of the judgment, April 24, 1989. The court ordered, in the third case, that the defendants: (1) comply with the final order, with minor exceptions, of the commissioner; (2) "desist and refrain from threatening, interfering with or intimidating, or attempting to threaten, interfere with, or intimidate, [any] officer, agent, or employee of the State of Connecticut or of United Illuminating Company"; (3) pay a civil penalty, pursuant to § 22a-226, of $500,000, "for the period beginning September 22, 1988, when the appeal from [order No. SW-259] was dismissed"; ¹² and (4) pay a civil penalty of $75,000 rather than $500,000 if all orders entered in the first and third cases were timely obeyed. Having ordered the defendants, in the first case, to cease further disposal or transfer of solid waste on the Conrail property, the trial court, in the third case, ordered that the defendants immediately "stop and do not resume waste transfer operations" at the Singer Avenue property leased by them.

The defendants have appealed from both of these decisions, claiming that the trial court: (1) erred in concluding that their conduct violated the final administrative orders issued by the commissioner; and (2) abused its discretion by ordering that the defendants perform remedial measures and pay civil penalties, without properly considering their financial ability to do so. The commissioner has cross appealed in both cases, claiming that the trial court erred: (1) in the third case, by vacating a prior contempt finding for violation of a temporary injunction made in a prior proceeding in the Superior Court; (2) by making the civil penalties in both cases conditional, dependent upon further action by the defendants; and (3) in the third case, by failing to order the removal of demolition debris from the Singer Avenue...