Starr v. Commissioner of Environmental Protection

• Decision Date: 30 April 1996
• Docket Number: No. 15234,15234
• Citation: 675 A.2d 430,236 Conn. 722
• Court: Connecticut Supreme Court
• Parties: Susan S. STARR v. COMMISSIONER OF ENVIRONMENTAL PROTECTION et al.

Page 430

675 A.2d 430

236 Conn. 722

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

No. 15234.

Supreme Court of Connecticut.

Argued Feb. 16, 1996.

Decided April 30, 1996.

John M. Looney, Assistant Attorney General, with whom, on the brief, was Richard Blumenthal, Attorney General, for appellant-appellee (named defendant).

Kathleen Eldergill, Manchester, for appellee-appellant (plaintiff).

Before CALLAHAN, BORDEN, BERDON, NORCOTT and KATZ, JJ.

KATZ, Justice.

The dispositive issue in this appeal is whether the plaintiff, Susan S. Starr, acquired a polluted 44.3 acre parcel of land by inheritance, thereby making her an innocent landowner pursuant to General Statutes § 22a-452d.

The following facts and procedural history are undisputed. On February 23, 1976, the plaintiff's husband, S. Leger Starr (decedent), died leaving a will that named the plaintiff the executrix of his estate. The will created two trusts, a marital trust and a residuary trust. The decedent's will gave the plaintiff the discretion to distribute into one of the two trusts what remained of the estate after the payment of funeral expenses and expenses related to the administration of the estate. The will also gave the plaintiff the authority to take assets directly instead of placing them in the marital trust and to transfer property without court approval.

When the decedent died, he was the controlling shareholder of three corporations, Don, Inc., L and S Realty, Inc., and Mountview, Inc. He owned approximately ninety-eight shares of stock in each of these corporations while the plaintiff and her sister each owned one share. ¹ These corporations were the title owners of the parcel of land (property) presently at issue. ² Upon his death, the decedent's ninety-eight shares became part of his estate. On January 31, 1978, at the advice of her attorneys, the plaintiff, acting as executrix, merged the three corporations into a preexisting corporation, Dale, Inc., which consequently became the owner of the land. Four years later, the plaintiff dissolved Dale, Inc., causing the corporation's assets to be distributed to the shareholders, which included the decedent's estate. Thereafter, on January 30, 1987, by virtue of a fiduciary deed, the plaintiff transferred the property to herself.

Within a few years, the named defendant, the commissioner of environmental protection (commissioner), began to investigate various complaints of odors emanating from the property. Because the commissioner determined that the plaintiff was maintaining a condition that was reasonably expected to create a source of pollution to the waters of the state in violation of General Statutes § 22a-432, ³ the commissioner issued an order to the plaintiff on July 9, 1990, requiring that she "eliminate soil, surface and groundwater pollution." Pursuant to General Statutes § 22a-436, ⁴ the plaintiff requested a hearing to review this order. On June 28, 1991, Lewis J. Miller, a hearing officer at the department of environmental protection, issued a final decision upholding the order.

Thereafter, the plaintiff appealed to the Superior Court, Maloney, J., ⁵ which concluded that because the plaintiff had not created the condition that caused the pollution, had not owned the property when it was polluted, and had not acquiesced to its pollution, the commissioner had improperly determined that the plaintiff's passive ownership of the property constituted "maintaining" a condition that reasonably could be expected to create a source of pollution within the meaning of § 22a-432. The trial court further concluded that, because of the commissioner's failure to comply with the Connecticut Water Pollution Control Act; General Statutes § 22a-416 et seq.; which provides that the commissioner must first attempt to seek reimbursement from those who actually caused the pollution ⁶ and, only if the commissioner is unsuccessful in securing payment from the polluter can reimbursement be sought from a passive landowner in the form of a lien on the polluted property for the amount of the cleanup costs, ⁷ the commissioner improperly had found the plaintiff responsible for the cleanup of the property. The commissioner appealed from the judgment of the trial court to this court, and we reversed. See Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 627 A.2d 1296 (1993).

In that case, we concluded that the trial court had failed to give due deference to the commissioner's interpretation of the word "maintaining" as used in § 22a-432. We reasoned that because "maintaining" is an ambiguous term that can be interpreted to apply to a passive landowner as well as to one who actively created the pollution, and because "it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement"; (internal quotation marks omitted) id., at 372, 627 A.2d 1296; the trial court should have deferred to the commissioner's interpretation. Id., at 376, 627 A.2d 1296. The commissioner's interpretation was also supported by the legislative history of the act. Id., at 381-90, 627 A.2d 1296. Additionally, we concluded that neither the language of the act nor its legislative history suggested that the commissioner was required to first attempt to recover from the party responsible for the pollution before the commissioner could impose a lien on the property itself. Rather, we concluded that the intent of the legislature was to provide the commissioner with alternative courses of action and the discretion to choose among them. Id., at 390-95, 627 A.2d 1296. Consequently, we reversed the judgment of the trial court and upheld the commissioner's order. Id., at 395, 627 A.2d 1296.

While Starr v. Commissioner of Environmental Protection, supra, 226 Conn. 358, 627 A.2d 1296, was pending before this court, the legislature enacted No. 93-375 of the 1993 Public Acts (P.A. 93-375), entitled "An Act Establishing an Innocent Landowner Defense in Pollution Cases," codified at General Statutes §§ 22a-452d ⁸ and 22a-452e. ⁹ Thereafter, the plaintiff filed a motion for reconsideration pursuant to General Statutes § 4-181a(b) ¹⁰ requesting reconsideration of the commissioner's final decision. That motion was granted and, after a hearing, the commissioner concluded that because the plaintiff had not established that she was an "innocent landowner" within the meaning of the P.A. 93-375, she was therefore fully liable for the cleanup costs. The commissioner reasoned that the plaintiff had not acquired the property by "inheritance or bequest" under § 22a-452d(1)(B)(iii) because, when the decedent died, he did not own the property in question. Rather, the property was owned by three corporations of which the decedent was a majority shareholder. The plaintiff had acquired the property as a result of the dissolution of Dale, Inc., and the distribution of its assets to its shareholders. Consequently, in the commissioner's view, "the site was not [the decedent's] to give" and he could not have devised the property to the plaintiff.

Furthermore, the commissioner reasoned that the plaintiff had acquired the property by her own volition in that she willingly had transferred ownership of the property from the estate to herself. According to the commissioner, "[w]hen the legislature enacted P.A. 93-375 limiting the liability of those who acquire polluted land by inheritance or bequest, it surely intended to limit the liability not of those who acquire such land by their own volition, but rather of those upon whom the financial burden of polluted land is involuntarily thrust. Ownership of the polluted land involved here was not thrust by the decedent upon [the plaintiff]; she had the power to dispose of the site entirely as she chose, and she chose to dispose of it by taking title herself."

Additionally, the commissioner rejected the plaintiff's argument that she did not know, and had no reason to know, of the pollution because she had failed to "[inquire], consistent with good commercial or customary practices, into the previous uses of the property." General Statutes § 22a-452d(1)(B)(i). The commissioner reasoned that had the plaintiff conducted a reasonable investigation of the property, she would have discovered the pollution.

The plaintiff appealed from the decision of the commissioner to the Superior Court, Hodgson, J., which concluded, inter alia, ¹¹ that although the plaintiff had acquired the property partially by inheritance, because she also had acquired it partially by the liquidation of Dale, Inc., she was not an innocent landowner. Additionally, the trial court determined that because the commissioner had disbelieved the plaintiff's witnesses regarding whether the plaintiff had "inquire[d], consistent with good commercial or customary practices, into the previous uses of the property," but had failed to present any contrary evidence, the commissioner had improperly relied on evidence not in the record to reach his decision.

In deciding that the plaintiff had not "inherited" the property pursuant to § 22a-452d(1)(B)(iii), the trial court first determined that it was presented with a question of law, namely, whether the plaintiff had inherited the property. The court explained that because "[t]he interpretation of laws concerning inheritance and corporate shares cannot be said to be within the special expertise of the agency headed by the Commissioner of Environmental Protection ... [the commissioner's] determination with regard to such issues is not entitled to deference...." Instead, the court independently construed P.A. 93-375 " 'to ascertain and give effect to the apparent intent of the legislature.' " West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507, 636 A.2d 1342 (1994); Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 390, 618 A.2d 1340 (1993).

The court...