Opinion
No. CV 04-4005396
March 27, 2006
MEMORANDUM OF DECISION
On November 18, 2004, the plaintiff, Commissioner of Environmental Protection, filed a twelve-count complaint against the defendants, Rivermead, Inc., Brewer Family Partnership, Brewer Family, LLC, and Colonial Mobile Home Park, Inc. The complaint is an environmental enforcement action seeking injunctive relief and penalties against the defendants for the leakage or spillage of kerosene from an underground piping system at two adjacent mobile home parks in East Hartford.
Rivemead, Inc. is alleged to be the management agent for Rivermead Mobile Home Park and Colonial Mobile Home Park. Brewer Family Partnership and Brewer Family, LLC are alleged to be the former and current owners and/or operators, respectively, of an underground storage tank facility located at Rivermead Mobile Home Park. Colonial Mobile Home Park, Inc. is alleged to have been the owner and/or operator of an underground storage tank facility at Colonial Mobile Home Park.
Counts one, four, seven and ten allege violations of §§ 22a-449(d)-1 and 22a-449(d)-101 through 113 of the Regulations of Connecticut State Agencies, due to the failure of the Brewer Family Partnership, the Brewer Family, LLC, the Colonial Mobile Home Park and Rivermead, Inc., respectively (1) to remove or properly abandon in place the non-corrosion protected underground storage tank (UST) piping system; (2) to conduct failure determination tests on the UST system components in the time frame mandated by regulation; and (3) to monitor the UST system for releases of petroleum as required by the regulation. Counts two, five, eight and eleven allege violations of General Statutes §§ 22a-430 and 22a-427 against each defendant respectively. These counts allege that each of the defendants initiated, created, originated or maintained a discharge of kerosene and/or constituents of petroleum products into the waters of the state, without obtaining a permit for this discharge. As a result of this conduct, the plaintiff alleges that the defendants polluted or discharged waste into the waters of the state. Counts three, six, nine and twelve allege, in part, that each of the defendants respectively violated the public trust in the natural resources of the state by engaging in conduct that polluted or impaired these natural resources. On April 15, 2005, the defendants filed a motion to strike counts one, four, seven and ten in their entirety; paragraphs five, six, eight, nine and ten of counts two, five, eight, and eleven; and associated prayers for the relief. The motion was accompanied by a memorandum of law in support. On June 29, 2005, the plaintiff filed a memorandum of law in opposition to the motion to strike. On August 1, 2005, the defendants filed a reply to the memorandum in opposition.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 476, 822 A.2d 1202 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Larobina v. McDonald, supra, 400. "Practice Book . . . § 10-39 . . . allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 973 (1998).
The defendants move to strike counts one, four, seven and ten on the ground that the UST facility is exempt from § 22a-449(d)-1 of the Regulations of Connecticut State Agencies. Specifically, they argue that the regulation, on its face, applies only to non-residential underground storage and handling of oil and petroleum liquids, while the complaint alleges that the residential mobile homeowners pay for the kerosene delivered by the UST system. The defendants argue that the regulation refers to the structures that are served by the UST system and that if such a structure is a residential building, these regulations do not apply.
The plaintiff counters that the complaint does not allege that any defendant is a resident of either mobile home park, that the kerosene is for residential use or that kerosene was being delivered exclusively to the mobile home units to fall within the purview of the exemption in § 22a-449(d)-1, the residential exemption. The plaintiff further argues that, insofar as the claim in the motion to strike requires a factual finding as to the status of the consumers of the kerosene, it is a speaking motion, and should be denied on that ground as well. Finally, the plaintiff argues that, assuming the truth of the complaint, the facility delivers fuel to both commercial and residential properties.
The plaintiff also argues that the motion to strike does not comply with Practice Book § 10-41, which requires a claim of legal insufficiency to "distinctly specify the reason or reasons for each such claimed insufficiency" on the face of the motion. This argument is without merit because the defendants have included as grounds for their motion some information about why the counts should be stricken in addition to stating that each is "legally insufficient."
The regulation in question applies to the owners and operators of certain types of facilities, including UST systems as listed in subparagraphs 22a-449(d)-101. Regs., Conn. State Agencies § 22a-449(d)-1(a)(1). The regulation uses the term "facility" to refer "only to nonresidential underground facilities." Regs., Conn. State Agencies § 22a-449(d)-1(a)(2). The term "nonresidential" is defined as "a facility which serves any commercial, industrial, institutional, public or other building including but not limited to, hotels and motels, boarding houses, hospitals, nursing homes and correctional institutions, but not including residential buildings." Regs., Conn. State Agencies § 22a-449(d)-1(a)(2). Finally, a "residential building" is defined in relevant part as "any house, apartment, trailer, mobile home, or other structure occupied by individuals as a dwelling provided that if the structure is not used solely as a dwelling, the nominal capacity of the facility, exclusive of piping, serving such structure does not exceed two thousand one hundred (2,100) gallons."
The complaint in counts one, four, seven and ten alleges that each of the defendants was the owner and/or operator of an UST facility located on one or both of the mobile home parks and was being used to store and distribute kerosene "for commercial resale purposes," without alleging the status of all of the consumers of the kerosene. The complaint does not allege that kerosene is for residential use nor to whom the kerosene is delivered. Because the plaintiff has alleged that the UST facility delivers fuel to both commercial and residential properties, and because the court must accept the facts alleged as true, the complaint alleges a commercial usage sufficient to bring the claim within the meaning of "nonresidential" under § 22a-449(d)-1(a)(2) of the Regulations of Connecticut State Agencies.
The only allegations as to the consumers of the kerosene are in the allegations related to Rivermead. This count states that "Rivermead, Inc., at all times relevant to the allegations of this complaint, was in the business of selling kerosene fuel to approximately 480 mobile home units . . ." That same count however, also alleges that the facility was being used to store and distribute kerosene "for commercial resale purposes."
The defendants next move to strike these same four counts, one, four, seven and ten, on the ground that the UST facility that provides heating oil to the residents of the mobile home parks is not subject to § 22a-449(d)-101 through 113 of the Regulations of Connecticut State Agencies. Those regulations address the upgrading, abandonment and removal of petroleum UST systems. Specifically, the defendants argue that these regulations expressly do not apply to tanks used for storing heating oil for consumptive use on the premises where stored, and, because the tanks in question furnish heating oil for consumptive use on the premises where stored, the defendants argue that the regulations do not apply to them.
The plaintiff counters that §§ 22a-449(d)-101 through 113 apply because the complaint alleges that the tanks are on the property known as Rivermead Mobile Home Park, that the piping is located at both that property and at Colonial Mobile Home Park and does not allege that the tanks are located on the premises of each of the mobile home units alleged to be purchasing kerosene and that consumption is on the premises where stored. In addition, the plaintiff argues that because the allegations in the complaint relate not to a storage tank but rather to the defendants' failure to remove or abandon the piping system of the UST and the failure to monitor the underground piping for releases of petroleum with an automatic leak detector and annual line tightness test, they sufficiently allege violations of these regulations.
The regulations in question address the upgrading, abandonment and removal of petroleum UST systems. They apply to owners and operators of certain underground tanks, which are defined as "any one or combination of tanks (including underground pipes connected thereto) that is used or designed to contain an accumulation of regulated substances, and the volume of which (including the volume of underground pipes connected thereto) is 10 percent or more beneath the surface of the ground." Regs., Conn. State Agencies § 22a-449(d)-101(a)(61). The definition excludes any "[t]ank used for storing heating oil for consumptive use on the premises where stored." Regs., Conn. State Agencies § 22a-449(d)-101(a)(61)(b).
The complaint alleges that each of the defendants "failed to remove or properly abandon in place the non-corrosion protected UST system piping in violation of . . . § 22a-449(d)-110(a)." The complaint further alleges that the tank facility includes "two in underground petroleum storage tanks, an aboveground `day tank' located at the property known as Rivermead Mobile Home Park and associated interconnected piping . . . at property known as Rivermead Mobile Home Park and Colonial Mobile Home Park . . ." It further alleges that each defendant "failed to monitor the facility's or UST system's underground piping for releases of petroleum with an automatic line leak detector and with annual line tightness tests in violation of . . . § 22a-449(d)-104(c)(2)." The language of the complaint sufficiently alleges facts pertaining to the defendants' failure to remove or properly abandon a petroleum UST system piping, and their failure to monitor the piping for petroleum releases.
Contrary to the defendants' claim, the plaintiff has made no allegation in the complaint about the consumptive users of the kerosene and whether such consumption is on the premises where the kerosene is stored. Therefore, the defendants' argument that "the tanks at the facility furnish heating oil for consumptive use on the premises where stored" pertains to allegations of facts outside the pleadings. The court is limited "to a consideration of the facts alleged in the complaint. A `speaking' motion to strike (one imparting facts outside the pleadings) will not be granted." Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988). For this reason, the defendants motion to strike counts one, four, seven and ten on these grounds must fail.
Next, the defendants move to strike paragraphs five, six, eight, nine and ten of counts two, five, eight and eleven on the ground that, as a matter of law, the plaintiff cannot assert a cause of action for failing to obtain a permit that the plaintiff would never issue. These paragraphs of those counts in the complaint refer to allegations that the defendants violated § 22a-430, which states in relevant part that "[n]o person or municipality shall initiate, create originate or maintain any discharge of water, substance or material into the waters of the state without a permit for such discharge issued by the commissioner." General Statutes § 22a-430(a). The defendants argue that, because the plaintiff "has not and would not issue" a permit to the defendants to discharge kerosene into the waters of the state, and because the complaint's prayers for relief do not require the defendants to obtain a permit in order to maintain the alleged condition of the tank system, the plaintiff should not, as a matter of law, be allowed to sue the defendants for the failure to obtain a permit. In response, the plaintiff asserts that the complaint alleges that the defendants' discharge occurred without first obtaining a permit, and that any question of whether a permit would ever be granted is irrelevant to the allegations in the complaint.
"[M]ost trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action . . . [O]nly an entire count of a [claim] can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action . . ." (Internal quotation marks omitted.) Guilemette v. Rockville Lodge No. 1359, Superior Court, judicial district of Tolland, Docket No. CV 020079083 (January 11, 2005, Scholl, J.) ( 38 Conn. L. Rptr. 513, 516-17). The paragraphs the defendants seek to strike in these counts pertain to alleged violations of § 22a-430, while the paragraph of these counts that the defendants leave out pertains to alleged violations of General Statutes § 22a-427. Paragraphs five, six, eight, nine and ten are properly subject to a motion to strike.
The complaint contends that the defendants "initiated, created, originated or maintained a discharge of water, substance or material into the waters of the state, specifically discharge of kerosene, a petroleum product, and/or constituents of petroleum products, without obtaining a permit for such discharge from the Commissioner of Environmental Protection in violation of General Statutes § 22a-430 (a) . . ." The complaint sufficiently alleges that the discharge was unlawful because it was undertaken without a permit, as required by statute. The defendants' contention that the plaintiff would not issue such a permit is an argument that addresses facts outside the pleadings and, as such, is again a speaking motion that cannot be granted. Because the complaint alleges facts sufficient to raise a claim under § 22a-430(a) and because the motion to strike this portion of the complaint pertains to allegations of facts outside the pleadings, the motion to strike paragraphs five, six, eight, nine and ten of counts two, five, eight and eleven are denied.
Lastly, the motion to strike asks the court to strike the prayers for relief associated with the counts and paragraphs they seek to have stricken. In their memorandum of law, however, the defendants do not brief the motion to strike these prayers for relief except to assert that the allegations in counts two, five, eight and eleven are inconsistent with the plaintiff's prayers for relief. This court is "not required to review issues that have been improperly presented to [it] through an inadequate brief." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). "Where an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived." Bridgeport Hospital v. Commission on Human Rights Opportunities, 232 Conn. 91, 115, 653 A.2d 782 (1995). Because the defendants have failed to brief the issues concerning the motion to strike the prayers for relief, this portion of the motion is denied.
The motion to strike counts one, four, seven and ten, insofar as they relate to allegations of violations of § 22a-449(d)-1(i)(2)(C) of the Regulations of Connecticut State Agencies, is denied because the complaint sufficiently alleges a violation of that regulation. The motion to strike these same counts, insofar as they relate to allegations of a violation of § 22a-449(d)-101 through 113 of the Regulations of Connecticut State Agencies, is denied on the ground that it is a speaking motion to strike and cannot be granted. The motion to strike paragraphs five, six, eight, nine and ten of counts two, five, eight and eleven is denied on the ground that the complaint sufficiently alleges a violation of § 22a-430(a). Finally, the motion to strike the prayers for relief is denied on the ground that the issue is deemed to have been waived. The motion to strike in its entirety is denied.
SO ORDERED.