Opinion
No. X07 CV 07 4030658
December 20, 2010
ARTICULATION
The Appellate Court has requested that this court address whether it resolved "the defendant's claim that penalties should not be assessed for the September 18, 2008 violations because paragraph II.H of the stipulated judgment requires the defendant within thirty days of the entry of judgment, but no later than September 26, 2008, to correct all violations pleaded in the complaint." On December 14, 2010, the state department of environmental protection (DEP) moved to reopen the judgment to withdraw the September 18, 2008 chronic toxicity violation. In light of this action, as discussed hereinafter, this court believes that the issue is no longer extant.
In this court's July 14, 2009 memorandum of decision, the court found that the DEP had presented evidence of at least six violations of the stipulated judgment including the September 18, 2008 violation of the chronic toxicity limits for the Daphnia pulex species. Consequently, this court found that paragraph III.D of the stipulated judgment mandated penalties in the sum of $150,000.
Although the DEP only sought, and this court only found, six violations, the DEP actually presented evidence of a seventh violation on September 18, 2008 — that for acute toxicity for Daphnia pulex. However, the DEP did not pursue it and this court did not find a seventh violation.
On appeal, Chromium evidently argued that this court should not have found any violations on September 18, 2008 because of the paragraph II.H language which states that "[a] permanent injunction is issued requiring the Defendant Chromium Process, within thirty (30) days of entry of this Judgment, but no later than September 26, 2008, to correct all violations pleaded in the complaint and to certify in writing to the Commissioner that the violations pleaded in the complaint have been fully corrected. Supporting documents demonstrating that the violations have been corrected should be attached to the certification." As stated, this court originally found a violation for the September 18, 2008 chronic toxicity along with the other violations, but no evidence was presented that Chromium filed a certification that any violation was resolved on or before September 26, 2008.
Chromium argues that the violation of the chronic toxicity limits in the seventh count of the DEP's complaint encompasses the September 18, 2008 violation, but the DEP disputes this. Nevertheless, at a hearing on the articulation request on December 14, 2010, the DEP orally moved, with consent by Chromium, and approval by this court, to reopen the judgment for the sole purpose of withdrawing its claim of a violation based on the September 18, 2008 chronic toxicity reading. None of the remaining five violations fall within the period set forth in paragraph II.H of the stipulated judgment as they all came after September 26, 2008.
Since the DEP has withdrawn its claim of a violation for September 18, 2008, there is no longer any occasion to consider the impact of paragraph II.H and whether it precluded a finding that the September 18, 2008 violation was subject to a penalty. This court notes that, regardless of the September 18, 2008 chronic toxicity violation, Chromium still had five violations which trigger paragraphs III.B and III.F concerning surrender of the NPDES and state permits.
Additionally, this court takes the opportunity with DEP's motion to open the judgment to modify its prior judgment. On the record on December 14, 2010, the DEP stated that it is only seeking, pursuant to paragraph III.D of the stipulated judgment, financial penalties for four violations at $25,000 each for a total of $100,000 and no more. As a result, the court's prior judgment is modified and the penalties assessed are reduced to $100,000 from the previously stated $150,000. See AvalonBay Communities v. Plan Zoning Commission, 260 Conn. 232, 246, 796 A.2d 1164 (2002) (concluding that trial court has continuing jurisdiction to effectuate prior judgments).