Starr v. Commissioner of Environmental Protection

• Decision Date: 06 July 1993
• Docket Number: No. 14529,14529
• Citation: 627 A.2d 1296,226 Conn. 358
• Court: Connecticut Supreme Court
• Parties: Susan S. STARR v. COMMISSIONER OF ENVIRONMENTAL PROTECTION et al.

Page 1296

627 A.2d 1296

226 Conn. 358

Susan S. STARR v. COMMISSIONER OF ENVIRONMENTAL PROTECTION et al.

No. 14529.

Supreme Court of Connecticut.

Argued Dec. 10, 1992.

Decided July 6, 1993.

John M. Looney, Asst. Atty. Gen., with whom, on the brief, was Richard Blumenthal, Atty. Gen., for appellant (named defendant).

Kathleen Eldergill, Manchester, for appellee (plaintiff).

Kevin C. Murphy, Bridgeport, filed a brief for Conservation and Environmental Quality Section of CT Bar Ass'n, as amicus curiae.

Paul B. Edelberg, Stamford, William Bouton III, Edward Samorajczyk, Hartford, Alexander H. Schwartz, Bridgeport, and Kevin Ferrigno, Hartford, filed a brief for Banking Law Section of CT Bar Ass'n, as amicus curiae.

Dean M. Cordiano and John R. Bashaw, Hartford, filed a brief for CT Bankers Ass'n et al., as amici curiae.

Patrick W. Hanifan, William H. Narwold and Laura W. Ray, Hartford, filed a brief for New England Legal Foundations, as amicus curiae.

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON, NORCOTT, KATZ and SANTANIELLO, JJ. ¹

CALLAHAN, Associate Justice.

This case concerns the issue of whether the owner of certain real estate, the plaintiff, Susan S. Starr, can be held liable pursuant to General Statutes § 22a-432, ² to correct a condition on her land that can reasonably be expected to create a source of pollution to the waters of the state, ³ even though she did not create the condition, acquiesce in its creation, or even own the property when the condition was created.

In response to complaints by local residents voiced by the defendant Scantic Neighborhood Association, Inc., of noxious odors emanating from a 44.3 acre parcel of land owned by the plaintiff on Simon Road in Enfield, the defendant commissioner of environmental protection (defendant) in June, 1989, initiated an investigation to determine the source of the odors. The defendant's investigation, which lasted more than a year, revealed that in the past the plaintiff's property had been utilized by a now defunct trucking company for the disposal of solid wastes, including demolition debris and industrial waste from the Springfield Gas Company. The defendant determined that the materials dumped on the plaintiff's land had polluted the site and continued to do so, creating a source of pollution to the waters of the state.

In July, 1990, the defendant issued an enforcement order to the plaintiff pursuant to General Statutes §§ 22a-432 and 22a-433. ⁴ In the order, the defendant stated that it had been found that materials present on the plaintiff's land evinced that the land had been used as a disposal site for solid waste. The order went on to assert that tests performed on samples of soil and water obtained from the plaintiff's property had identified a number of contaminants, including complex and amenable cyanides, heavy metals, and volatile and semi-volatile hydrocarbons. On the basis of these findings, the defendant determined that the plaintiff had created or was maintaining a condition on her property that could reasonably be expected to create a source of pollution to the state's waters. Consequently, the plaintiff was ordered by the defendant to: "(1) Investigate the solid waste on site and the potential extent and degree of soil, surface and ground water pollution both on and off-site; (2) [t]o perform remedial actions approved by [the defendant] to abate soil, surface, and ground water pollution; and (3) [t]o conduct a monitoring program to determine the effectiveness of the remedial actions taken."

The plaintiff filed a timely appeal of the defendant's order pursuant to General Statutes § 22a-436. ⁵ An administrative hearing on the plaintiff's appeal was held on March 4 and March 11, 1991, before an adjudicator appointed by the defendant. Prior to the hearing, the parties entered into a stipulation of facts that was admitted into evidence and adopted by the defendant. ⁶ At the hearing, the following pertinent facts were therefore not in dispute: The plaintiff is the record owner of the 44.3 acre site in question. She took title to the property on January 30, 1987, by virtue of a fiduciary deed from the estate of her late husband. Materials present on the site indicated that in the past the site had been used for the disposal of solid waste that included demolition debris and industrial wastes. Tests of soil and water samples obtained from the property identified several contaminants including complex and amenable cyanide, metals, and volatile and semi-volatile hydrocarbons. It was further stipulated that the waste and contaminants located on the plaintiff's property constitute a condition that can reasonably be expected to create a source of pollution to the waters of the state, that the surface waters emanating from the site are polluted within the meaning of "pollution" as defined by § 22a-423, and that the wastes and contaminants on site have not been removed by the plaintiff.

The defendant, after the hearing, concluded that the measures ordered on July 9, 1990, were necessary to remove the potential sources of pollution from the plaintiff's land and confirmed the original order. The defendant's decision turned on the interpretation of the term "maintaining" as used in § 22a-432. In the memorandum of decision, the defendant stated: "The sole issue at this juncture is whether the respondent is, to use the precise statutory language, 'maintaining' that condition." ⁷ The defendant noted that the term "maintaining" is not defined in the statutes. Consequently, the defendant turned to the dictionary to determine its commonly approved usage. Referring to Webster's New International Dictionary, the defendant concluded that the term "maintaining," as used in the statute, meant "to hold or keep in a particular state or condition," that it entailed no element of scienter or requirement of positive action by the landowner, and that there was "no compelling reason" to read such a limiting condition into the statute's explicit language. The defendant supported that conclusion, and the propriety of the order, by citing to a decision in a previous case in which it had been held that mere ownership of real property was a sufficient basis for imposing liability under § 22a-432. ⁸

The plaintiff appealed the defendant's final decision to the Superior Court pursuant to §§ 22a-437 and 4-183. ⁹ On appeal, the court found that the plaintiff was aggrieved by the defendant's decision and had standing to appeal. It thereafter found, in addition to the facts set forth in the stipulation of the parties at the administrative hearing, that "there was considerable, indeed overwhelming evidence that the dumping of the pollutants occurred long before the plaintiff or her husband owned the property and the dumping was done by a now defunct trucking company which was hauling the material from gas producing companies in Massachusetts. Although the [defendant] made no findings of fact which specifically identified those responsible for the dumping of the pollutants, all of the evidence showed that it was not the plaintiff. There was also evidence, which was likewise uncontradicted, that the plaintiff was actually denied any access to the property from the time she acquired it until the summer of 1989, when the pollution was first noticed. This circumstance came about as a result of the town's control of the road leading into the property and its refusal to allow the plaintiff to use that road. The point of this evidence is that it shows that the plaintiff's ownership of the property was utterly passive up to the time the pollution was discovered."

The trial court noted that, at the administrative hearing, the defendant had admitted the evidence that indicated the plaintiff's lack of culpability for causing the pollution on her property, but had "essentially held that it was not relevant in assessing responsibility for the clean-up." The court also noted that the defendant had "implicitly conceded that the plaintiff had not 'established a facility or created a condition' causing the pollution" as set forth in § 22a-432, but had decided rather that the "mere passive ownership" of contaminated real property constituted " 'maintaining [a] facility or condition which reasonably can be expected to create a source of pollution' " under § 22a-432. The trial court concluded that the defendant had been incorrect in determining that " § § 22a-432 and 22a-433 impose strict and full liability on the owner of the property for the elimination of pollution, regardless of the owner's 'innocence' in causing it and regardless of the culpability of other persons." ¹⁰ The court, as did the defendant in the administrative hearing, found the dispositive issue to be "whether an owner of property on which pollutants were dumped by other persons prior to her acquisition of it, but who herself has had no active involvement with the property, not even to go on it to inspect it, is 'maintaining' the condition causing the pollution within the meaning of § 22a-432."

The trial court, in addressing this issue, as did the defendant in the administrative hearing, looked to the dictionary definitions of the word "maintaining" in an attempt to determine its meaning. The court, unlike the defendant, deemed that the dictionary definitions of "maintaining" all "include the concept of some positive conduct or effort designed to preserve a particular condition." The court concluded, therefore, that the plaintiff's mere passive ownership of land could not be considered as " 'maintaining any ... condition which ... created a source of pollution' on that property ... in accordance with the commonly approved usage of the term 'maintaining.' "

The trial court went on to state that the statutory scheme of the Connecticut Water Pollution Control Act (act); General Statutes § 22a-416 et seq.; provides for the liability of an innocent landowner only if the person actually...