Keeney v. L and S Const.

• Decision Date: 29 June 1993
• Docket Number: No. 14535,14535
• Citation: 626 A.2d 1299,226 Conn. 205
• Court: Connecticut Supreme Court
• Parties: Timothy R.E. KEENEY, Commissioner of Environmental Protection v. L AND S CONSTRUCTION et al.

Page 1299

626 A.2d 1299

226 Conn. 205

Timothy R.E. KEENEY, Commissioner of Environmental Protection v. L AND S CONSTRUCTION et al.

No. 14535.

Supreme Court of Connecticut.

Argued May 4, 1993.

Decided June 29, 1993.

Robert V. Cimmino, Sherman, for appellants (named defendant et al.).

Kimberly P. Massicotte, Asst. Atty. Gen., with whom were Joseph Rubin, Asst. Atty. Gen., and, on the brief, Richard Blumenthal, Atty. Gen., and Robert B. Teitelman, Asst. Atty. Gen., for appellee (plaintiff).

Before PETERS, C.J., and CALLAHAN, BORDEN, KATZ and PALMER, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is whether monetary penalties imposed for disposal of solid wastes in violation of the applicable environmental statutes were so excessive as to constitute an abuse of discretion. The plaintiff, Timothy R.E. Keeney, the commissioner of environmental protection (commissioner), filed a multicount complaint charging the defendants L and S Construction, Cathy Morsey, Lee B. Morsey and Steven Hinckley (defendants) ¹ with the dumping of demolition debris without a permit, at five different sites in Connecticut, in violation of General Statutes §§ 22a-208a (b) ² and 22a-430 ³ and with having thereby caused pollution in violation of General Statutes § 22a-14 et seq. ⁴ The trial court found that the defendants had violated each of the statutes as charged, granted injunctive relief to the commissioner, and ordered the defendants to pay a civil penalty of $1,032,800. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred their appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

The trial court's memorandum of decision establishes the following facts. The defendant L and S Construction is a partnership. The acts of the partnership are attributable to the individual defendants, who are either partners or agents of the partnership.

During 1990 and 1991, without having applied for any state permits, the defendants disposed of massive amounts of construction debris at five different sites in the state. One of these sites was their own property in New Milford, while the others were sites on which they deposited waste materials with the consent of the owners.

At their own property at 322 Kent Road in New Milford, abutting the Housatonic River, the defendants buried several thousand cubic yards of waste material on the site, and accumulated more than 51,000 cubic yards altogether. The waste materials constitute an environmental hazard to the site's subsurface water and to the contiguous river.

At 44 Black Bridge Road in Newtown, although the defendants received consent to deposit clean fill, they instead deposited 700 cubic yards of construction debris. The solid waste is within fifty to seventy-five feet of a well, and its leachate will pollute the ground and endanger the water supply at the site.

On Saw Mill Road in Torrington, the defendants dumped 1800 cubic yards of construction debris on the property of a subdivision for which they had contracted to construct a road. Because this solid waste is a danger to the water supply and to the environment, the developers removed it from the site at a cost of $78,000.

On Route 55 in Sherman, the defendants dumped 3000 to 4000 cubic yards of construction debris on property for which they had agreed to dig a foundation hole and to build an access road. These solid waste materials constitute a danger to the water supply in the area and to the environment.

On property in or near a wetland in New Preston, with the unwitting consent of the owner, the defendants dumped 2000 cubic yards of construction debris. These solid wastes constitute a danger to the water supply, to the environment in general and to the wetlands.

The trial court concluded that the defendants had violated three different environmental statutes by their disposal of significant amounts of construction debris at each of these five sites without the necessary permits. First, the defendants' dumping of construction materials contravened the requirements of § 22a-208a regulating the disposal of solid waste. Construction debris falls within the definition of "solid waste." General Statutes § 22a-207(3). ⁵ The disposal of more than ten cubic yards of solid waste constitutes the establishment of a solid waste facility; General Statutes § 22a-207(4) and (6); ⁶ for which a license is required by § 22a-208a. Second, the defendants' unlicensed discharge of leachate contravened § 22a-430, which forbids the discharge of any substance or material into the water of the state without a permit for discharge issued by the commissioner of environmental protection. Third, the presence of these solid waste materials and the accompanying discharge of leachate into the waters of the state constituted unreasonable pollution in violation of the Environmental Protection Act, § 22a-14 et seq.

Having found that the commissioner had proven these three statutory violations, the trial court issued a permanent injunction enjoining the defendants from dumping future deposits of solid waste anywhere within the state without a permit and requiring their compliance with detailed specifications for the removal of the illegal solid waste previously deposited at each of the sites other than Torrington. ⁷ The court's order included penalties in the event of noncompliance and indicated that the court would retain supervisory jurisdiction to assure compliance with its mandate.

In addition, pursuant to §§ 22a-208a and 22a-430, the trial court imposed civil penalties of $1,032,800 on the defendants. The court determined that such penalties were appropriate, in accordance with the criteria outlined in Carothers v. Capozziello, 215 Conn. 82, 103-104, 574 A.2d 1268 (1990), and General Statutes § 22a-438, ⁸ because the statutory violations were severe, serious, knowing and flagrant. The court found that the defendants had profited substantially from their illegal conduct, and that they had failed to substantiate their alleged financial inability to pay a fine.

The defendants' appeal raises two issues. They maintain that the judgment of the trial court should be set aside because: (1) there was insufficient evidence of their violation of § 22a-16 of the Environmental Protection Act; and (2) the amount of the civil penalties constituted an abuse of discretion. We are unpersuaded.

I

The defendants' claim of insufficiency of the evidence is a limited one. They do not challenge the trial court's finding that their unlicensed disposal of construction debris came within, and violated, the permit requirements of §§ 22a-208a and 22a-430. They contend, instead, that the state failed to prove that their activities constituted unreasonable pollution in violation of § 22a-16 of the Environmental Protection Act.

In support of its conclusion that the defendants had violated the Environmental Protection Act, the trial court found that, at each of the five sites at issue in this case, the defendants had deposited construction debris in close proximity to water resources. At each site, the leachate from this construction debris constituted an environmental hazard to a river, to the local water supply or to a wetlands. These findings of fact would be reversible on appeal only if they were clearly erroneous. See Practice Book § 4061; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The defendants do not question the trial court's findings relating to their improper disposal of the construction debris or to the leachate emanating from such debris. They maintain, however, that the court improperly determined that they had violated § 22a-16 of the Environmental Protection Act because whatever pollution, impairment or destruction of the environment resulted from their activities was not shown to have been unreasonable. ⁹

The state's evidence on the adverse impact of the defendants' activities on the health and well-being of the community and the environment principally took the form of expert opinions offered by three environmental analysts with the department of environmental protection and a director of health for the town of New Milford. The experts testified that the leachate from the defendants' construction debris would pollute nearby subsurface or ground water and surface waters and that pollution of such waters would endanger other persons using the groundwaters as a source of drinking water. There was testimony about a risk of fire hazard and rodent harborage associated with the decomposition of construction debris. Finally, there was testimony that the defendants' disposal activities had impaired the quality of the river adjacent to their own property and had destroyed a portion of the wetlands on the New Preston property.

Although the defendants do not challenge the qualifications of the state's witnesses to give expert opinions on environmental matters, they nonetheless maintain that the trial court could not have relied on these expert opinions because the experts testified in large part on the basis of hypothetical questions rather than on the basis of their own personal observations. The defendants cite no authority in support of this proposition of law, and our law is to the contrary. The established rule is that, on direct examination, the stated assumptions on which a hypothetical question is based must be the essential facts established by the evidence. See Floyd v. Fruit Industries, Inc., 144 Conn. 659, 666, 136 A.2d 918 (1957); Johnson v. Toscano, 144 Conn. 582, 589-90, 136 A.2d 341 (1957); Graybill v. Plant, 138 Conn. 397, 403, 85 A.2d 238 (1951); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed.1988) § 7.16.8, pp. 180-81. If the hypothetical question has the proper factual foundation, the expert may give his opinion without having personally verified...