Opinion
No. CV-07-4031222-S
May 19, 2008
MEMORANDUM OF DECISION
Presently before the court is the plaintiff's motion to strike all eight special defenses.
On July 3, 2007, the plaintiff, Gina McCarthy, the commissioner of environmental protection, filed a four-count complaint, in which she alleges the following facts. The defendant Associated Carting, Inc. (Associated Carting) is a Connecticut corporation with its principal place of business at 990 Naugatuck Avenue, Milford, Connecticut (the site). The defendant D.C. Waste Management, Inc. (D.C. Waste) is a Connecticut corporation that also has the site as its principal place of business. On January 3, 2007, agents or employees of the department of environmental protection (DEP) conducted an inspection of the site; during this inspection, they discovered that Associated Carting was operating a large-scale commercial operation involving the transferring and storing construction and demolition debris without a permit. On January 16, 2007, the DEP issued a notice of violation to Associated Carting; in response, Associated Carting told the DEP that it would stop accepting construction and demolition waste, that it would submit an application for the proper permit, and that it would remove all solid waste not properly stored at the site.
On July 2, 2007, DEP employees and agents conducted a second inspection. The DEP employees and agents discovered that Associated Carting had expanded its operation to include municipal waste; furthermore, Associated Carting continued to operate a solid waste transfer facility without a permit. This inspection revealed approximately sixty containers of solid waste without covers or tarps. As a result of this second investigation, the DEP filed this lawsuit.
Count one alleges that the defendant Associated Carting operated a solid waste transfer station without a permit. Count two alleges that defendant Associated Carting discharged into waters of the state without a permit. Count three alleges that the defendant D.C. Waste operated a solid waste transfer station without a permit. Finally, count four of the complaint alleges that D.C. Waste discharged into the waters of the state without a permit. On October 4, 2007, the defendants filed an answer with general denials of each count, as well as special defenses numbered one through eight. On October 23, 2007, the plaintiff filed a motion to strike the special defenses, which was denied by the court without prejudice (January 17, 2008, Elgo, J.). The plaintiff filed a second motion to strike the special defenses on January 25, 2008, with a supporting memorandum of law. The defendants responded with a memorandum in opposition on February 1, 2008. This matter was heard at short calendar on February 12, 2008.
In this memorandum, the defendants withdrew special defenses one, six and seven. The court, therefore, need not consider the motion to strike as to the first, sixth and seventh special defenses.
DISCUSSION
"A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[Courts] have, on occasion, looked beyond the specific language of a pleading to discern its real underlying basis." (Citation omitted.) Gazo v. Stamford, 255 Conn. 245, 262, 765 A.2d 505 (2001). The court is limited "to a consideration of the facts alleged in the [pleading]. 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).
"Practice Book § 10-50 governs the pleading of special defenses and provides in relevant part: No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." (Internal quotation marks omitted.) Atlantic National Trust, LLC v. Van Eck, 89 Conn.App. 200, 209, 873 A.2d 179 (2005). Therefore, a properly pleaded special defense cannot contradict the facts alleged in the complaint. Ideally, a special defense will allege additional facts, not inconsistent with those facts alleged in the complaint, that demonstrate some reason why the plaintiff's cause of action cannot succeed.
1. Second Special Defense
The defendants' second special defense is directed at counts one and three of the complaint. The defense alleges that the activities at the site do not meet the definition of "transfer station" under the relevant Connecticut regulation. See Regs., Conn. State Agencies § 22a-209-1. The defense next alleges that the DEP regulation relating to the permitting of transfer stations does not apply to activities on the site. See Regs., Conn. State Agencies § 22a-209-4. Finally, the defense alleges that the defendants have not violated General Statutes § 22a-209 because no law required a permit.
The plaintiff argues in her memorandum of law in support of the motion to strike that each of these are denials of allegations made in the complaint. The defendants argue that the facts alleged in the defense are consistent with the complaint but support a different legal conclusion. In actuality, the second special defense asserts three statements requiring the interpretation of one statute and two regulations. These three statements, therefore, are not facts but are legal conclusions. See New England Cable TV Ass'n. v. Dept. of Public Utility Control, 247 Conn. 95, 117 n. 21, 717 A.2d 1276 (1998) (explaining that statutory interpretation presents question of law).
These legal conclusions contradict those of the complaint, questioning its legal sufficiency. The purpose of a special defense is to present additional facts to show why a plaintiff's cause of action cannot succeed. For example, the statute of frauds is a special defense to a contract action, requiring a defendant to plead facts that show that the contract in question fails to satisfy the statute. See Gabriele v. Brino, 85 Conn.App. 503, 506-07, 858 A.2d 273 (2004). Another example would be a statute of limitations defense, which alleges facts showing that the incident in question happened too far in the past to sustain an action. See Lombard v. Peters, 79 Conn.App. 290, 295, 830 A.2d 346 (2003). The second special defense does not fit into this framework. The second special defense takes the exact same facts of the complaint and asserts that the legal conclusion that the plaintiff derived from them is incorrect. Therefore, this is a challenge to the legal sufficiency of the complaint. "The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993); see also Greenwood v. Eastman-Kodak Co., Superior Court, judicial district of New Britain, Docket No. CV 92 0452919 (March 25, 1994, Lavine, J.) [11 Conn. L. Rptr, 309] ("The defendant's attempt to re-litigate the legal sufficiency of the complaint via a special defense is procedurally improper. The motion to strike is the proper method to challenge the legal sufficiency of the complaint.").
Because a special defense is not the proper procedural tool to challenge the legal sufficiency of a complaint, the court grants the plaintiff's motion to strike the second special defense.
2. Third and Fourth Special Defenses
The third special defense alleges that Coastal Recycling, LLC (Coastal), had a general permit to conduct the activities in question on the site. The fourth special defense alleges that approval or rejection of the general permit was beyond the authority of the DEP, and, therefore, this permit was valid and effective. Both of these defenses are directed at counts one and three. In her memorandum in support of the motion to strike, the plaintiff argues that Coastal is not a named party in this matter, and, as a result, any allegations regarding a permit held by Coastal are irrelevant. The defendants counter that the plaintiff's decision not to include Coastal in this case should not prevent the defendants from presenting evidence on Coastal's permit.
"No person or municipality shall establish, construct or operate a solid waste facility without a permit issued by the commissioner under this section." General Statutes § 22a-208a(b). The third and fourth defenses essentially assert that Coastal had a permit to conduct the operations that were on-going at the site. This does nothing to say that the plaintiff's cause of action against the defendants, however, cannot succeed. This defense only states that Coastal, which is not listed as a defendant, was authorized to operate a solid waste facility on the site. The plaintiff's cause of action alleges that the defendants were not authorized to conduct such activities. Therefore, this is not a special defense.
It should be noted here that the first special defense, which the defendants withdrew in their opposition to this motion to strike, alleges that Coastal is the actual operator of the site with respect to all activities alleged in the complaint. This defense was withdrawn because the defendants conceded that it was merely a denial of allegations in the complaint rather than an affirmative defense; specifically, the defense is inconsistent with the allegations in the complaint that Associated Carting and D.C. Waste are the operators of the site. If the court were to read this withdrawn allegation into the third and fourth defenses, the defenses would be invalid as inconsistent with the allegations of the complaint instead of failing to state a legal defense.
The court grants the plaintiff's motion to strike the third and fourth special defenses because the special defenses here fail to allege facts that show that the plaintiff's cause of action cannot succeed.
3. Fifth Special Defense
The fifth special defense, which is directed at counts one and three, alleges that the DEP failed to comply with the procedures established in § 22a-209-12 of the Regulations of Connecticut State Agencies. The plaintiff moves to strike this defense on the ground that the defense merely asserts a legal conclusion and argues a hypothetical situation. The plaintiff breaks down each individual allegation of the defense and presents an argument as to why each individual allegation is inadequate as a special defense. Specifically, the plaintiff argues that the first allegation states a fact consistent with the complaint but not negating the plaintiff's cause of action. She further states that the second allegation presents a legal conclusion and, therefore, should not be considered. The plaintiff then argues that the third allegation merely presents a hypothetical situation, not a fact, and that the commissioner has broad discretion to seek remedies in her discretion. The defendants counter that the facts that support the legal conclusions are implied by the allegations. Furthermore, the defendants argue that they would have taken steps to get a hearing had the plaintiff followed the procedures.
The validity of this defense comes down to how the court should interpret the regulations detailing how the DEP addresses violations. The Regulations of Connecticut State Agencies state: "Whenever [DEP] employees determine that any applicable statute or regulation has not been complied with, the Commissioner shall send to the person or persons responsible for the noncompliance a written order specifying the nature of the noncompliance and affording a reasonable period of time for its correction. Nothing herein shall be construed to limit the rights of the Commissioner to proceed with any other remedies." Regs., Connecticut State Agencies § 22a-209-12(b)(2). The plaintiff argues that the regulation leaves the discretion to file suit instead of issuing a compliance order in the hands of the commissioner. The defendants counter that the regulation allows the plaintiff to seek other remedies in conjunction with issuing a written order, but does not allow for a substitution of the written order procedure.
In ruling on the motion to strike, "the trial court [has an] obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). Essentially, the defendants are alleging that the DEP violated its own procedures, prejudicing the defendants. The issue of what procedure the DEP actually followed is a question of fact, and this may effect how the regulation in question will be interpreted.
Therefore, the motion to strike the fifth special defense is denied because the plaintiff has failed to show that, assuming all facts in favor of the defendants, the fifth special defense fails to nullify the plaintiff's cause of action.
4. Eighth Special Defense
In their eighth special defense, which is directed at counts two and four, the defendants assert that any discharged water did not cause any pollution and that the ground and surface waters of the area were already heavily polluted. The plaintiff moves to strike this defense on the ground that it fails to show that the plaintiff has no cause of action. The plaintiff argues that the statute in question requires a permit for discharging waters, regardless of whether this water causes pollution or not. The defendants argue in response that the legislative intent was to prevent pollution; therefore, the lack of pollution should be a defense to the plaintiff's action.
General Statutes § 22a-430(a) provides 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." This chapter defines the term "discharge" as being "the emission of any water, substance or material into the waters of the state, whether or not such substance causes pollution . . ." General Statutes § 22a-423. Section 430 clearly states that any discharge must be done pursuant to a permit. The regulations issued in conjunction with this statute establish the conditions and procedures for the issuance of such a permit and demonstrate that the permit process is a means by which the commissioner can regulate discharges into the waters of the state. See generally Regs., Conn. State Agencies §§ 22a-430-1 et seq. The cause of action that the plaintiff asserts here alleges that the defendants acted without subjecting themselves to the regulation and conditions of the commissioner of environmental protection. The offense here is the discharge without a permit; proving that the defendants violated § 22a-430 does not require a showing of actual pollution. Even if the defendants do prove at trial that any discharge did not cause actual pollution, the plaintiff can still prove her claim. The defendants, therefore, have failed to allege facts consistent with the complaint that show that the plaintiff does not have a cause of action.
The court grants the plaintiff's motion to strike the eighth special defense because the allegations in the defense do not demonstrate that the plaintiff has no cause of action.