Commissioner of Energy & Environmental Protection v. BIC Corp., LNDCV116026501S
| Decision Date | 09 November 2015 |
| Docket Number | LNDCV116026501S |
| Court | Connecticut Superior Court |
| Parties | Commissioner of Energy & Environmental Protection v. BIC Corporation |
UNPUBLISHED OPINION
On or around September 24, 2003, [1] the plaintiff, the commissioner (commissioner) of the department of energy and environmental protection (department), issued order SRD-153 requiring the defendant, BIC Corporation (BIC), to conduct an investigation on its property at 500 and 565 Bic Drive in Milford[2] and neighboring property to determine the potential impact of manufacturing activities on the environment and the existing and potential extent and degree of soil, groundwater, and surface water pollution. The commissioner issued modified order SRD-153 to BIC on December 10, 2003. On July 6, 2004, the commissioner and BIC entered into partial consent order SRD-153 (order) requiring BIC to investigate potential releases of pollutants on its property. The commissioner approved the Phase I report with conditions on August 17, 2004, and the Phase II report with conditions on March 29, 2006. On April 7, 2010, the commissioner issued a partial approval of BIC's Phase III investigation.
Alleged releases of trichioroethylene (TCE), BIC's involvement and, among other things, BIC's responsive actions were discussed by this court in greater detail in the private cause of action Liss v. Milford Partners Inc., Superior Court, complex litigation at Hartford Docket No. X07 CV-04-4025123-S, (April 11, 2011, Berger, J.). After Liss, the commissioner obtained meeting notes in 2011 from BIC's environmental consultant concerning interviews with past BIC employees conducted in December of 2003. As a result of those notes, on July 28, 2011 the commissioner revoked his approvals of the Phase II and III scopes of study and BIC's Phase II report, disapproved the Phase III report, and requested that BIC conduct additional studies which it refused to do.
On October 27, 2011, the commissioner commenced this action against BIC seeking injunctive relief and penalties and stayed the administrative enforcement proceeding. The commissioner's revised complaint, filed on March 14, 2012, alleges that BIC failed to comply with the order.
On March 30, 2012, BIC filed a counterclaim against the commissioner and amended it on February 24, 2014, alleging a breach of the order and a breach of the covenant of good faith and fair dealing based upon the approvals that BIC received in the process of the investigation that were revoked by the commissioner. In its prayer for relief, BIC asks the court to order the commissioner to comply with the requirements of the order and to pay fees, costs, and other expenses associated with this action.
On October 21, 2014, the commissioner revoked the order[3] and on October 22, 2014, the commissioner withdrew his complaint against BIC.[4] On January 14, 2015, the commissioner filed a motion to dismiss BIC's counterclaim on the grounds that it was barred by the doctrine of sovereign immunity and because BIC failed to exhaust its administrative remedies. BIC filed its memorandum of law in opposition to the commissioner's motion to dismiss on January 30, 2015, arguing that the court does have subject matter jurisdiction over its counterclaim and that pursuing any administrative remedies would be futile. The commissioner filed a memorandum in reply on February 6, 2015. On July 14, 2015, this court heard the motion to dismiss and BIC filed a supplemental memorandum of law on July 17, 2015. The commissioner also filed a memorandum in reply on July 20, 2015, and BIC filed a surreply on July 23, 2015.
Sovereign immunity relates to a court's subject matter jurisdiction over a case . . . The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . It has deep roots in this state and our legal system in general, finding its origin in ancient common law . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence . . . To 'overcome the presumption of sovereign immunity' . . . a plaintiff seeking to bring a claim against the state must establish that an exception to the doctrine applies." (Citations omitted; internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274-75, 21 A.3d 759 (2011).
" When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Cuozzo v. Orange, 315 Conn. 606, 614, 109 A.3d 903 (2015).
The commissioner argues that his motion to dismiss should be granted because the court lacks subject matter jurisdiction based upon the doctrine of sovereign immunity. " [T]he practical and logical basis of the doctrine [of sovereign immunity] is today recognized to rest . . . on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property . . . Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence." (Citations omitted; internal quotation marks omitted.) Markley v Dept. of Public Utility Control, 301 Conn. 56, 65, 23 A.3d 668 (2011).
(Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).
In the present case, BIC does not argue legislature waiver or a violation of its constitutional rights; it only argues that the commissioner acted in excess of his statutory authority by revoking the order. In Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003), the court held that " a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that . . . in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority." (Citation omitted.) More recently, in Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 349, the court held that plaintiff must make " a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority." BIC's amended counterclaim alleges that " the Connecticut environmental statutes [do not] make any provision authorizing the Commissioner to revoke previously approved documents or actions taken by BIC."
Regardless of whether BIC is required simply to allege that the commissioner acted in excess of his statutory authority or to make a " substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority, " [5] " [f]or a claim under the third exception, the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations." (Internal quotation marks omitted.) Id., 350. " Although in reviewing a motion to dismiss we must construe the allegations of the complaint in the light most favorable to the plaintiff, to survive the defense of sovereign immunity the complaint must nevertheless allege sufficient facts to support a finding of unconstitutional or extra statutory state action . . . In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Citation omitted; internal quotation marks omitted.) Markley v. Dept. of Public Utility Control, supra, 301 Conn. 66.
This court must also examine the relevant statutes to determine if the commissioner's conduct was in excess of his statutory authority. See Miller v. Egan, supra, 265 Conn. 327 (" when a process of statutory interpretation establishes that the state officials acted beyond their...
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