Keeney v. Fairfield Resources, Inc.

• Decision Date: 14 March 1996
• Docket Number: No. 13735,13735
• Citation: 674 A.2d 1349,41 Conn.App. 120
• Court: Connecticut Court of Appeals
• Parties: Timothy R.E. KEENEY, Commissioner of Environmental Protection v. FAIRFIELD RESOURCES, INC., et al.

Page 1349

674 A.2d 1349

41 Conn.App. 120

Timothy R.E. KEENEY, Commissioner of Environmental Protection v. FAIRFIELD RESOURCES, INC., et al.

No. 13735.

Appellate Court of Connecticut.

Argued Sept. 25, 1995.

Decided March 14, 1996. ^*

Nancy Burton, Redding Ridge, for appellants (Laurel Hill Association et al.).

Leonard A. Fasano, New Haven, with whom, on the brief, was Edward N. Lerner, Stamford, for appellees (defendants).

Krista E. Trousdale, Assistant Attorney General, with whom, on the brief, were Richard Blumenthal, Attorney General, and Joseph Rubin, Assistant Attorney General, for appellee (plaintiff).

Before SPEAR, FRANCIS X. HENNESSY and HEALEY, JJ.

HEALEY, Judge.

This case involves an action commenced in November, 1993, by the plaintiff commissioner of environmental protection (commissioner) against the defendants to enforce certain state environmental laws. ¹ The commissioner sought, inter alia, injunctive relief pursuant to certain statutes ² and orders requiring the defendants to forfeit moneys to the state pursuant to certain statutes for each violation. ³ The trial court denied intervenor status to certain individuals and an association (intervenors), who have appealed from the judgment denying intervention. We conclude that intervenor status should have been granted to each of the intervenors. Accordingly, we reverse the judgment and remand the matter with direction to grant the requests to intervene.

We will not set out in this opinion the background circumstances alleged by the commissioner in his complaint in this action. The circumstances are essentially the same as those involved in Zoning Commission v. Fairfield Resources Management, Inc., 41 Conn.App. 89, 674 A.2d 1335 (1996) (zoning case), which was argued before this court at the same time as the present appeal. This appeal, which arises out of the same quarry mining operation in Brookfield, involves conduct by the defendants allegedly in violation of a condition of a permit earlier issued by the commissioner to divert certain waters of the state. This appeal also involves other actions by the defendants taken without the required permits and resulting in a diversion of waters of the state, including the construction and maintenance of a dam across Limekiln Brook, ⁴ the excavation of the streambed of Limekiln Brook and the daily pumping of over 50,000 gallons of water from the sump pump at the mine site. Further allegations include conducting and maintaining a "regulated activity," to wit, the operating of the mine, without a permit, ⁵ the discharging of materials into the waters of the state at the mine site without a permit, and "causing pollution of the waters of the State." In bringing this action directly to the Superior Court in Hartford, the commissioner exercised one of the options available to him under General Statutes § 22a-430(d). ⁶

On January 12, 1994, the Brookfield zoning commission (zoning commission), which is the plaintiff in the companion case filed a notice of intervention in this action, purportedly as a matter of right pursuant to General Statutes § 22a-19(a). ⁷ In that verified pleading, the zoning commission sets out at length the alleged operation and conduct of the defendants at the mine site without the required permits. It asserts that "the Zoning Commission of Brookfield is charged with the enforcement of state and local zoning regulations and statutes," and it maintains that the defendants continue to conduct their activities on these premises despite the earlier cease and desist order. It further pleads the statutory language, alleging that the natural resources removal activity, dam construction and water diversion constitute "conduct which has, or is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water and other natural resources of the Town of Brookfield and the State of Connecticut."

Thereafter, four separate notices of intervention were filed by Edward C. Huse, the Laurel Hill Association (association), Allen B. Blackman and Lloyd Willcox. ⁸ Each of these four notices sets out that the filer intervenes in these proceedings in accordance with the provisions of General Statutes § 22a-19(a). Each filer was denied intervenor status by the court, O'Neill, J., at a hearing on May 31, 1994.

The association filed its notice of intervention through Richard Gereg, its president. That notice alleges, inter alia, that the association is an organization with a membership in excess of 120 persons, whose families own and occupy property in the neighborhood of Laurel Hill Road in Brookfield, and that it was organized to protect residential property values in the Laurel Hill Road vicinity "and to see to it that any and all governmental agencies which have jurisdiction will exercise their jurisdiction properly to ensure enforcement of laws, statutes and regulations enacted to protect and conserve the environment." Incorporating language from § 22a-19(a), the notice alleges that the proceeding involves "conduct which has or is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state."

On May 23, 1994, the defendants filed separate objections to the notice of intervention filed by the association, Blackman and Willcox. Each objection argued that "this case is not an 'administrative, licensing or other proceeding' ... nor ... a review of any administrative, licensing or other proceeding. This case is an enforcement action brought by the Commissioner of Environmental Protection ('DEP') in which the DEP has sought injunctive relief and forfeiture damages." Each objection states further that the intervenors' "basis for intervention is misplaced, and they should not be permitted to intervene in this case as a matter of right." ⁹

On May 31, 1994, a hearing was held in the Hartford Superior Court before Judge O'Neill, on the defendants' objections to intervention by the proposed intervenors. The case of Polymer Resources, Ltd. v. Keeney, 32 Conn.App. 340, 629 A.2d 447 (1993), and particularly footnote 9 of that opinion, appeared to control the court's decision sustaining the defendants' objection to the intervention of the four proposed intervenors. Early in that hearing, the court asked the intervenors' counsel: "How do you get around footnote 9" of the Appellate Court's Polymer decision. ¹⁰ While agreeing that this was an environmental action as well as an "original action," the trial court rejected the claim that the language of § 22a-19(a) was ambiguous and declined to examine its legislative history. In that context, the commissioner, in supporting intervention, argued in that court that the legislative history clearly demonstrated the intent to ensure citizen participation in environmental matters. In doing so, the commissioner pointed to that portion of the legislative history that demonstrated the legislature's intention to allow citizen intervention in environmental cases. In that regard, the legislative debate on this legislation indicated an intent to expand access to the courts in "alleged polluting activity." 14 H.R.Proc., Pt. 2, 1971 Sess., p. 739, remarks of Representative John F. Papandrea. The trial court opined that the legislature "has given us two paths" and referred to §§ 22a-16 ¹¹ and 22a-19(a). Section 22a-16 permits the maintaining of an independent action for obtaining relief against alleged unreasonable pollution. Section 22a-19 permits intervention "[i]n any administrative, licensing or other proceeding, and in any judicial review thereof made available by law...." That broad language strongly suggests citizen intervention at both the judicial level as well as what may be generally denominated the "agency" level. The trial court stated that §§ 22a-16 and 22a-19 had to be read together. The trial court stated that doing so "reinforced [his] view that one is for an action, which intervenors can certainly bring and one is for review of administrative proceedings." The trial court stated, "I have to follow the Connecticut Appellate Court," referring to the Appellate Court's decision in Polymer. The court thereupon sustained the defendants' objections to all four who had filed to intervene. The unsuccessful intervenors have appealed from the judgment denying § 22a-19 intervention.

On appeal, the intervenors claim that they properly pleaded § 22a-19(a), that they have the right to intervene in this action under the clear authority of Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 526 A.2d 1329 (1987), and that the denial of § 22a-19(a) intervention thwarts the legislative purpose of the Environmental Protection Act (EPA), General Statutes § 22a-1 et seq.

The commissioner raises two questions ¹² in this appeal: whether the intervenors should be allowed to intervene in these cases under § 22a-19(a) and whether the trial court improperly relied on the Appellate Court's decision in Polymer in denying intervention. We incorporate in this opinion all that we said in the companion zoning case about the legal viability of the Appellate Court's Polymer decision, including its availability as an advisory opinion. See Zoning Commission v. Fairfield Resources Management, Inc., supra, 41 Conn.App. 89, 674 A.2d 1335.

The intervenors argue that they have properly pleaded § 22a-19(a) intervention. The defendants have not raised any question about that claim and it appears to us that the intervenors have properly pleaded § 22a-19(a) intervention.

We discuss the other claims of the intervenors together as they are interrelated to the consideration and resolution of whether they are entitled to intervene under § 22a-19(a). The intervenors claim a right to intervene under the authority of Connecticut Water Co., appearing to premise that argument on the ground that in that case the Supreme Court "ruled" that the...