Commissioner Protection v. Underpass Auto Parts Co.

• Decision Date: 13 October 2015
• Docket Number: No. 19329.,19329.
• Citation: 319 Conn. 80,123 A.3d 1192
• Court: Connecticut Supreme Court
• Parties: COMMISSIONER OF ENVIRONMENTAL PROTECTION v. UNDERPASS AUTO PARTS COMPANY et al.

319 Conn. 80

123 A.3d 1192

COMMISSIONER OF ENVIRONMENTAL PROTECTION

v.UNDERPASS AUTO PARTS COMPANY et al.

No. 19329.

Supreme Court of Connecticut.

Argued May 20, 2015.

Decided Oct. 13, 2015.

Kimberly P. Massicotte, associate attorney general, with whom were Sharon M. Seligman, assistant attorney general, and, on the brief, George Jepsen, attorney general, and David H. Wrinn, assistant attorney general, for the appellant (plaintiff).

John R. Bashaw, New Haven, with whom were Desmond M. Ryan and Mary Mintel Miller, for the appellees (named defendant et al.).

Opinion

PALMER, J.

The primary issue that we must address in this appeal is whether, in an action brought by the Commissioner of Environmental Protection (commissioner)¹pursuant to General Statutes § 22a–430 (d),²the trial court, upon finding that any person had caused pollution of the waters of the state, is required to order that person to remediate the effects of the pollution pursuant to applicable standards promulgated by the commissioner and, if so, the extent to which the court may exercise its equitable powers to craft an appropriate remedy. The commissioner brought this action against the defendants, Underpass Auto Parts Company (Underpass Auto), Wallingford Used Parts & Recycling, Inc. (Wallingford Used Parts), Dwain P. Thibodeau, Sr., and Thibodeau doing business as Underpass Used Auto Parts, Inc.,³alleging, among other things, that the defendants had violated General Statutes §§ 22a–430 (a),⁴22a–430b⁵and 22a–427,⁶84 which are part of the Water Pollution Control Act, General Statutes § 22a–416 et seq.In addition, the commissioner brought a claim against the defendants pursuant to General Statutes § 22a–354s (b),⁷alleging that the defendants had violated the regulations of the Aquifer Protection Act, General Statutes § 22a–354g et seq.The trial court found that the defendants had violated these statutes and rendered judgment against them. The court also concluded that Thibodeau was personally liable for the corporate defendants' violations of the Water Pollution Control Act under the responsible corporate officer doctrine, but that he could not be held personally liable under that doctrine for the corporate defendants' civil violations of the Aquifer Protection Act. As the remedy, the trial court ordered the defendants to pay certain fines and to retain a licensed environmental professional to assist the defendants in complying with the statute, to conduct testing on the site where the discharges occurred to determine if “a significant environmental hazard” exists and, if so, to abate the condition. The commissioner then filed this appeal⁸claiming that: (1) having found that the defendants had violated these environmental statutes, the trial court was required by law to order the defendants to remediate the pollution in accordance with remediation standards promulgated by the commissioner, and that the court did not have discretion to fashion a remedy that did not purport to do so; and (2) the trial court incorrectly determined that the responsible corporate officer doctrine did not apply to civil violations of the Aquifer Protection Act. We agree with the commissioner's first claim, and we further conclude that the trial court's order also constituted an abuse of discretion because it was effectively unenforceable. Accordingly, the commissioner is entitled to a new trial. We reject, however, the commissioner's second claim.

The trial court found the following facts that the parties do not dispute. The defendants operate a junkyard and motor vehicle recycling facility located at 1125 South Broad Street in Wallingford (site) and they have done so since at least 2003. Thibodeau is an officer of both Underpass Auto and Wallingford Used Parts. The site, which is not paved, covers approximately three acres. The site is located approximately 1500 feet from two public water supply wells and is within a designated aquifer protection area as defined by General Statutes § 22a–354h (10).⁹

On October 16, 2003, Thibodeau submitted to the Department of Energy and Environmental Protection (department)¹⁰a registration for coverage under the department's general permit for the discharge of storm water from industrial activity at the site pursuant to § 22a–430b. Thereafter, the department issued a certificate of registration to Underpass Used Auto Parts, Inc. In 2009, Thibodeau applied for a renewal of the certificate of registration, which was also granted.¹¹Between 2003 and 2013, employees of the department inspected the site on numerous occasions and observed oil staining dirt on the site. As the result of these inspections, the commissioner issued notices of violation to the defendants in 2005 and 2007.

The commissioner brought this action against the defendants in 2009. The operative complaint alleges that the defendants had: (1) failed to register under the general permit for discharge of storm water as required by § 22a–430b (a)for the period between March 19 and October 16, 2003; (2) failed to comply with the general permit in violation of § 22a–430b (a); (3) discharged substances into the waters of the state without a permit in violation of § 22a–430 (a); and (4) polluted the waters of the state in violation of § 22a–427. All of these claims were brought pursuant to the Water Pollution Control Act. The complaint further alleged that the corporate defendants had failed to comply with aquifer protection regulations in violation of § 22a–354s (b), under the Aquifer Protection Act. Finally, the complaint alleged that Thibodeau was personally liable for the violations of the Water Pollution Control Act both as a participant in the conduct and under the responsible corporate officer doctrine, and he was personally liable for the violations of the Aquifer Protection Act under the responsible corporate officer doctrine.

After a trial to the court, the trial court found the facts previously set forth in this opinion and concluded that “[p]ollution of the surface and groundwater [was] likely given the levels of contaminants in the soil.”¹²It further concluded that “based on this evidence as well as the broad definitions of the [applicable] statutory terms ... that there has been pollution of, and a discharge of substances or materials into, waters of the state from the site since 2003. The commissioner has not specifically issued a permit for these discharges. Further, there was a failure to take all reasonable steps to minimize or prevent a discharge having a reasonable likelihood of adversely affecting the environment. Thus, violations of ... §§ 22a–427, 22a–430 (a), and the regulations promulgated under ... § 22a–430bhave occurred.” (Footnote omitted.) Accordingly, the court expressly concluded that the defendants had violated these statutory and regulatory provisions. In addition, the court concluded that the commissioner had established “past violation by [these] defendants of the aquifer regulations and future dangers to the aquifers located nearby” in violation of the Aquifer Protection Act. Finally, the court determined that Thibodeau was personally liable for the violations of the Water Pollution Control Act under the responsible corporate officer doctrine, but that that doctrine did not apply to civil violations of the Aquifer Protection Act because § 22a–354s (c)¹³limits the application of the doctrine to criminal violations of the Aquifer Protection Act.

The trial court then turned to the question of the proper remedy. The court concluded that, in fashioning a remedy, it should be guided by General Statutes § 22a–438 (a).¹⁴The court also concluded that it should consider: “(1) the size of the business involved; (2) the effect of the penalty or injunctive relief on its ability to continue operation; (3) the gravity of the violation; (4) the good faith efforts made by the business to comply with applicable statutory requirements; (5) any economic benefit gained by the violations; (6) deterrence of future violations; and (7) the fair and equitable treatment of the regulated community.”¹⁵(Internal quotation marks omitted.) Keeney v. L & S Construction,226 Conn. 205, 214, 626 A.2d 1299 (1993).

The court found that the defendants had not acted wilfully, but negligently, and that they had cooperated with the commissioner in an attempt to clean up the site, “albeit at a somewhat sluggish pace....” The court then reiterated that, despite these efforts, the defendants had allowed “continuous contamination of the soil at the site and, in all probability, pollution of surface and groundwater near the site.” The court also found, however, that “the commissioner has not proven tangible harm to the waters of the state.” The court further observed that, “[t]his case is not one in which the ... defendants have significantly polluted our streams, rivers, ponds, lakes, oceans, or public water supplies. There is certainly a valid concern for the purity of the public well water at most 1500 feet away. But, at this point, largely because of the commissioner's intervention and the [defendants'] ultimate cooperation, that potential has fortunately not become realized.” In addition, the court found that Thibodeau and his wife had earned only “modest salaries” from operating the site.

On the basis of these findings, the trial court concluded that the costs of a “three phase program of investigation and remediation” of the pollution at the site, which the commissioner had requested, would “approach being prohibitive.”¹⁶The court also accepted the opinion of the defendants' expert witness that “it is not necessary to conduct a full investigation and remediation of the site, given that contamination levels were below that posing a significant environmental hazard, at least until there is a transfer or redevelopment of the property.” The court then ordered the defendants to “retain an environmental consultant, approved by the commissioner, for three subsequent years to assist these defendants...