Connecticut Bldg. Wrecking Co., Inc. v. Carothers

• Decision Date: 07 May 1991
• Docket Number: No. 14181,14181
• Citation: 218 Conn. 580,590 A.2d 447
• Court: Connecticut Supreme Court
• Parties: , 33 ERC 1759 CONNECTICUT BUILDING WRECKING COMPANY, INC., et al. v. Leslie CAROTHERS, Commissioner of Environmental Protection.

Page 447

590 A.2d 447

218 Conn. 580, 33 ERC 1759

CONNECTICUT BUILDING WRECKING COMPANY, INC., et al. v. Leslie CAROTHERS, Commissioner of Environmental Protection.

No. 14181.

Supreme Court of Connecticut.

Argued Feb. 15, 1991.

Decided May 7, 1991.

Gary A. Mastronardi, Bridgeport, for appellants (plaintiffs).

Janet P. Brooks, Asst. Atty. Gen., with whom were Robert B. Teitelman, Asst. Atty. Gen., and, on the brief, Clarine Nardi Riddle, then Atty. Gen., and Joseph Rubin, Asst. Atty. Gen., for appellee (defendant).

Before SHEA, CALLAHAN, GLASS, HULL and BORDEN, JJ.

SHEA, Associate Justice.

The state department of environmental protection (DEP) charged the plaintiffs with operating and depositing waste at an unpermitted solid waste disposal facility. The DEP ordered them to cease these illegal activities and to remove all solid waste exclusive of "clean fill" from the site. After seven days of hearings, the DEP hearing officer affirmed the order. In the ensuing administrative appeal, the Superior Court affirmed the hearing officer's finding of liability but refused to review the order itself, ruling that the reasonableness of the order could only be challenged in the pending enforcement proceeding. The plaintiffs appealed, challenging (1) the sufficiency of the evidence for the finding of liability, (2) the trial court's refusal to review the enforcement order itself, and (3) the constitutionality of General Statutes (Rev. to 1985) § 22a-207(4) and (6), ¹ specifically, whether the phrase "location utilized for the ultimate disposal of wastes" is an impermissibly vague definition of "solid waste disposal area." We affirm the judgment with respect to the first and third issues raised, but reverse with respect to the second.

The following facts are not in dispute. In a series of orders commencing in September, 1985, the DEP charged Connecticut Building Wrecking Company, Inc. (CBWC), and its joint owners, Geno and Russell Capozziello, who are brothers, with violations of Public Acts 1985, No. 85-334, § 2(b) and (c). ² Those provisions essentially prohibit, inter alia, "altering" (§ 2[b] or "operating" (§ 2[c] a solid waste facility that does not have a permit. ³ As a remedy, the DEP ordered the plaintiffs either to remove "all solid waste exclusive of clean fill" at the site or to close the facility after submitting acceptable plans within a prescribed timetable. The DEP made similar charges with respect to the same site against at least one other company, Bridgeport Wrecking Company (BWC), which the record reveals is owned by Thomas Capozziello, another brother of Russell and Geno. BWC did not, however, appeal the order against it. After reaching a tentative settlement with the DEP, CBWC submitted documents in connection with the required closure plans. The DEP, however, considered the documents inadequate and untimely. It insisted that the plaintiffs clear the site.

The "site" ordered cleared is a sloping piece of land running behind a row of houses on Clearview Drive and Clearview Circle in Bridgeport. The DEP's "principal environmental analyst," Thomas Pregman, estimated that the dumped materials or "fill" covering the site area measured approximately 500 feet in length, 35 to 40 feet in width and 20 to 30 feet in height. The fill covered the backyards of nine different but contiguous lots of land with nine different owners. No solid waste permit of any kind was ever sought by or issued to either the plaintiffs or any of the resident owners.

Both the DEP and the plaintiffs agree that truckloads of material were dumped on the site by CBWC as well as by other companies. Some residents initially welcomed the dumping as a means of leveling the steep slope of their backyards. The plaintiffs do not dispute the presence of "solid waste" at the site, including wood, tires, stumps and leaves. The hearing officer made factual findings that "[t]he limits of the solid waste fill are unknown" and that "[t]he sources of most of this waste are undetermined."

I

Before proceeding to address the substance of the hearing officer's conclusions, we must discuss the plaintiffs' claim that the statute they are charged with violating is unconstitutionally vague. ⁴

The DEP found that the plaintiffs had violated § 2(b) and (c) of No. 85-334 of the 1985 Public Acts, subsequently modified by No. 85-661, § 147 of the 1985 Public Acts and codified as General Statutes § 221-208a(b) and (c). ⁵ Under any version of the statute in effect during the period in question, it was illegal to alter or operate a "solid waste facility" that did not have the requisite permits the statutes or regulations required. Because the plaintiffs' conduct would not violate the statute unless the "facility" at which they dumped was required to have a permit, the pertinent issue involves the statutory definition of "solid waste facility."

General Statutes (Rev. to 1985) § 22a-207(4) defines "[s]olid waste facility" as "any solid waste disposal area ... if such area ... handles more than five tons a year of solid waste." Section 22a-207(6) defines "[s]olid waste disposal area" as "the location utilized for ultimate disposal of wastes as approved by the department." ⁶ The plaintiffs argue that the word "location" makes the entire statutory scheme unconstitutionally vague on its face. They also argue that the word "location" makes the statutory scheme unconstitutionally vague when applied to the Clearview Drive site, which consists of portions of nine separately owned lots of land.

When a litigant challenges a statute as void for vagueness under the United States constitution, we confine our inquiry to the statute's applicability to the facts of the case unless the statute could intrude upon fundamental constitutional guarantees, such as first amendment rights. State v. Cavallo, 200 Conn. 664, 670, 513 A.2d 646 (1986). A statute may be unconstitutionally vague in violation of due process without impinging upon such fundamental guarantees, but in such a case, a litigant lacks standing to challenge the statute's vagueness unless his own due process rights would be violated by its application to him. Id. An exception to this general rule arises in those rare cases when the statute's vagueness itself violates due process by making the statute impossible to obey. See, e.g., Champlin Refining Co. v. Corporation Commission of Oklahoma, 286 U.S. 210, 243, 52 S.Ct. 559, 568, 76 L.Ed. 1062 (1932); cf. Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). In order to prevent this latter difficulty, we will, if we have not previously construed the statute, "search for 'an effective and constitutional construction that reasonably accords with the legislature's underlying intent' "; State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991), quoting State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); thereby dispelling any claimed constitutional violation. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 795-96, 109 S.Ct. 2746, 2756, 105 L.Ed.2d 661, reh. denied, 492 U.S. 937, 110 S.Ct. 23, 106 L.Ed.2d 636 (1989) (the United States Supreme Court, in evaluating a facial challenge to a state law, will consider any limiting instruction proffered by a state court).

The plaintiffs contend that, as written, § 22a-207(4) and (6) make it impossible for any dumper to obey General Statutes (Rev. to 1989) § 22a-208a(b) and (c). Since a dumpsite "location" is not a "solid waste disposal facility" unless it "handles more than five tons a year of solid waste," the plaintiffs maintain that a dumper will be at a loss when he tries to determine whether his disposal activities in a given "area" or "location" have triggered the "five ton" permit requirement. This argument suggests that dumping one ton in each of five city neighborhoods could be dumping five tons in one "location" if the "location" is the entire city.

"The court must use common sense in construing statutes and must assume that a reasonable and rational result was intended by the promulgating legislature." Windham First Taxing District v. Windham, 208 Conn. 543, 553, 546 A.2d 226 (1988). The statute refers to an "area that handles" and a "location utilized for" solid waste. Without delimiting the full scope of the term "location"; cf. Board of Education v. Freedom of Information Commission, 217 Conn. 153, 161, 585 A.2d 82 (1991); Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 106, 561 A.2d 429 (1989); we can reasonably construe § 22a-207(6) as limited to contiguous property that is intended to or reasonably appears to act as a single dumpsite. So construed, the statutory scheme is not "impossible" to obey; the still puzzled would-be dumper may seek further clarification from the DEP, the agency responsible for administering the statute. "[S]tatutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language." United States v. National Dairy Corporation, 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561, reh. denied, 372 U.S. 961, 83 S.Ct. 1011, 10 L.Ed.2d 13 (1963). This is especially true when the statute affects regulated activity, such as dumping, for "the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process." Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362, reh. denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed 2d 476 (1982); see also Kolender v. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903 (1983); Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972); cf. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952). By contrast, the statute at issue in Champlin Refining Co. v. Corporation...