Opinion
No. X01 CV-04-4003593S
September 16, 2005
MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY
Factual Background
The Plaintiff, Simsbury-Avon Preservation Society, LLC ("Society"), is a group of homeowners residing adjacent to or near Nod Road in Simsbury, Connecticut. The defendant, Metacon Gun Club, Inc. ("Metacon") is a Connecticut corporation that owns and operates a private gun club on Nod Road. Nod Road runs alongside the Farmington River. Metacon is located on and surrounded by wetlands and is part of an area designated a flood plain. The shooting range at Metacon faces Talcott Mountain. In proximity to Metacon is the Tower Ridge Golf Course and a Connecticut State Police firing range used as a training facility for various municipal police departments as well as for state troopers. The Society's claim, generically, is that the shooting of firearms which discharge lead shot and/or bullets contaminates surrounding soil and water, creates hazardous waste, and is a significant environmental hazard to the health of humans, fish, fowl, and other area wildlife. Specifically, the claim is that the lead discharge has contaminated water resources which are classified as "GAA" or "GA" (the classification applicable to water resources of the highest quality in this state) and are therefore a sources of drinking water for humans, horses, and wildlife (Count One, Para 8) and has contaminated and threatens to contaminate sediments and/or soils on Metacon's site (Count One, Para 9). The plaintiff is, within the meaning of C.G.S. § 22a-16, a "person" who may maintain an action CT Page 12005-fi for declaratory and equitable relief for the protection of the public trust in the air, water and other natural resources of this state from unreasonable pollution, impairment or destruction.
As such, the area is conducive to flooding, particularly during the CT Page 12005-ft spring when precipitation is greater.
The defendant's site is also used by various local police departments requiring an outdoor range for certain training activities.
The complaint also claims noise in excess of "Connecticut noise regulation" (Count One, Para 16). No evidence was offered as to this claim and the court therefore considers the claim abandoned for the purpose of this Application.
Metacon does not dispute the same and the court so finds.
The complaint is brought in two counts. Count One is brought under C.G.S. § 22a-16 of the Environmental Protection Act of 1971; it claims Metacon is liable to the plaintiff for violation of the public trust in unreasonably polluting or impairing the air, water, soil, and other natural resources. As to this count, the Prayer for Relief seeks damages and declaratory and injunctive relief (Paras 3-6 of Count One; Prayer for Relief). Count Two alleges noise and lead contamination constitute. a private nuisance for which the Prayer for Relief seeks compensatory and punitive damages and temporary and permanent injunctions prohibiting Metacon from continuing its activities. The court does not consider Count Two with regard to this Application for the reason stated below in fn. 3 as well as for the reason no testimony was offered with regard to the Society's injury in relation to a right it enjoys by reason of its ownership of an interest in land. See Webel v. Yale Univ., 125 Conn. 515, 525 (1939).
Testimony was taken on June 30 and July 22, 2005, and both parties subsequently submitted written memoranda.
Legal Standard for Injunctive Relief
The issue in deciding an Application for PJR relief is whether a party has established probable cause as to any claim and as to damages. Probable cause has been defined as a bona fide belief in facts essential under the law for the action and such as would lead a reasonable, prudent person to entertain such relief. Dufraineau v. CHRO, 236 Conn. 250, 261 (1996). Probable cause must be established as to both liability and damages. Ledgebrook Condominium Association, Inc. v. Lusk Corp., 172 Conn. 577, 579 (1977). Probable cause does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730 (1983); thus the plaintiff does not have to establish he will prevail but must establish there is probable cause to sustain the validity of the claim. Ledgebrook, supra, at 577. The court's role CT Page 12005-fj therefore in such a hearing is to determine probable success by weighing probabilities. Three S Development Co. v. Santore, 193 Conn. 174, 175-76 (1984). The granting or denial of the remedy is within the discretion of the trial court. Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 30 (2003). Generally, a party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. Irreparable harm need not, however, be shown in statutory injunction cases. Gelinas v. West Hartford, 225 Conn. 575, 588 (1993) (enforcement of zoning regulation); Conservation Commission v. Price, 193 Conn. 414, 429 (1984) (violation of Inland Wetlands and Watercourses Act); Dept. of Transportation v. Pacitti, 43 Conn.App. 52, 58, cert. denied, 239 Conn. 631 (1996) (compliance with certificate of operation under General Statutes § 14-311[a]). The moving party must nevertheless show: a) lack of an adequate remedy at law; b) a likelihood of success on the merits; and c) that a balancing of the equities favors granting the injunction. See e.g., Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 446 (1994). The Order should be "clear and certain in its terms." Palverari v. Finta, 129 Conn. 38, 40 (1942). "The extraordinary nature of the injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted." Wallingford v. Werbiski, 274 Conn. 483, 494 (2005).
The Evidence
The plaintiff's position is that it has made a prima facie showing Metacon has unreasonably polluted the soil and water surrounding the range and thus is in violation of § 22a-16. It relies on the testimony of Joseph Santovasi, an environmental consultant retained to assess the soil, ground water, surface water, and sediments at the site, and John Collins, Ph.D. in soil chemistry, a human health and ecological risk assessor. Santovasi obtained nineteen (19) soil samples from the site on September 1, 2004. He visited the site that day and observed the firing line on the western portion of the site, targets at differing distances from the firing line, and an earthen berm with vegetation CT Page 12005-fk beyond the targets and across from the firing line. Fifty (50) to one hundred (100) feet behind the berm were wetlands. Unsurprisingly, he observed spent ammunition at the site, primarily along the berm and at scattered areas between the firing range and berm at the location of the various targets. He was not an ammunition expert and had no understanding of the kinds of weapons fired there. He observed flattened bullets and testified to certain components of lead being leachable but conceded he was not qualified to render an opinion as the effect of lead on humans or wildlife. His contribution was to establish the following:
He conceded he was not an expert on wetlands nor was he a soil scientist.
Santovasi's testimony was that he observed hard metal targets; later witnesses from Metacon testified to the use of paper targets.
a) The Connecticut State Department of Environmental Protection has developed a guideline of five hundred parts per million (500 ppm) for residential lead levels in soils; above that level poses a risk to humans exposed to the soils. Tr., 6/30/05-a.m., p. 36.
The site is considered residential by the Simsbury zoning board because an outdoor recreational use. Voelker, Tr. 6/30/05-p.m. pp. 76-77. The DEP also considers a recreation area "residential."
b) Eight (8) soil samples (SS1-SS8) were taken from the front of the earthen impact berm; the lead levels of all but one (1) exceeded the significant hazard notification threshold concentration for residential areas; a sample above the threshold concentration "establishes a report criterion." Tr., 6/30/05 — a.m.p. 46. All eight (8) exceeded DEP guidelines for leachable lead concentrations.
The direct exposure limit DEP has established is 500 ppm; the significant environmental hazard concentration is thirty (30) times that or 15,000 ppm.
c) Seven (7) soil samples (SS9-SS15) were collected in areas between the firing line and the earthen impact berm; of those, six (6) exceeded the residential direct exposure criterion of 500 ppm; none of those samples exceeded the significant hazard notification threshold concentration for residential areas. Tr., 6/30/05 — a.m., pp. 50-51.
Thus, they are potentially harmful in cases of direct exposure.
d) Four (4) soil samples (SS16-SS19) were taken from along the front of the firing line; of those, none exceeded either the residential direct exposure criterion or the significant residential hazard notification threshold criterion. Id., p. 50-61.
Thus, of the nineteen (19) soil samples, fourteen (14) were found to be a potential hazard to humans and wildlife in the event of direct exposure CT Page 12005-fl and seven (7) were of such levels as to require the property owner to notify the DEP. Additionally, sieved samples tested for other metals exceeded residential direct exposure limits for antimony and arsenic; testing for antimony, arsenic, zinc, or copper did not exceed criteria for residential significant hazard notification levels. Id., at 60-62. Finally, three (3) wetlands surface water samples exceeded DEP residential direct exposure criteria. Human and wildlife exposure to contaminated soil is primarily through direct contact, digestion, and inhalation. With regard to impacted wetland surface waters, human and wildlife exposure is primarily through direct contact or ingestion and, with regard to wetlands sediments, direct contact is the primary pathway for both human and wildlife exposure.
Santovasi's recommendations were to: 1) conduct a more complete assessment of the magnitude and extent of impacted environmental media on the site; 2) perform a risk assessment of impacted environmental media on the site; and 3) develop and implement best management practices consistent with the EPA's recommendations for gun ranges. Tr., 6/30/05 — a.m., p. 66.
Santovasi made much of the EPA guideline which recommends not to shoot into wetlands or waterways and plaintiff does as well. See Tr., 6/30/05 — a.m., at 66; plaintiff's brief, at p. 5. There was no direct evidence of shooting into water bodies or wetlands; the only testimony was that there were wetlands surrounding this site and surface water samples showed lead levels which were, according to a number of witnesses, likely to be from the defendant's site.
The plaintiff's other expert, John Collins, has a Ph.D. in soil chemistry and did a risk assessment based upon Santovasi's data and a report from Fuss O'Neill dated 6/28/05 (Def. Exh. B). His testimony was that what was done here was a screening level risk assessment and there was not done either a remedial investigation or an impact assessment to determine the extent of contamination. "Obviously, in this case that remedial investigation is not complete and that is a data gap." Tr., 6/30/05 — p.m., p. 9. Having looked at the data available with regard to human health in the environment, he concluded "[T]here's not enough information for a quantitative risk assessment." Id., at 11-12. He did, however, conclude: a) there was a contaminant (lead) of concern; b) the levels were as high as he had seen; c) there was the potential for harm to humans through dermal exposure by way of direct contact or through windblown dust; d) the real number in terms of a screening level risk assessment is five hundred milligrams per kilogram (500 mg/kg.); and d) "When you look at this minimal data, it suggests there is a high potential for a human health risk and an ecological risk." Id., at 16. The data collected, he testified, was "not sufficient, it doesn't have coverage of the entire site . . ." Id., at 15-16. Even before completing a quantitative risk assessment, it would be necessary, he stated, to "delineate the extent of contamination so that you can determine the risk" and that is accomplished by taking "a lot more samples" that look at the entire site to determine what the average and high concentrations were. Id., at 17-18. While he could not conclude the soil and wetlands sediment samples were "representative" data, he did CT Page 12005-fm conclude that, "if they are representative of the site and, perhaps, even if they're not, they are such that they do present a significant risk to humans." Id., at 20-21. He recommended collection of more data to do a true remedial investigation and that, in the interim, surface soil be taken up, removed offsite, and be replaced with clean fill. He obviously was unable to determine the extent of contamination of the wetlands as well but he believed that, so long as notification thresholds were met, there should be remediation.
He did not visit the site but stated that was not unusual for risk assessments.
500 mg/kg. is this state's threshold criterion; the EPA's criterion is 600 mg/kg. Id., at 42.
Here, Collins departs from the report of Hankins of Fuss O'Neill (Exh. B) who believed that, once the lead had been removed from the earth and backstops, it could be placed back again. Collins objected CT Page 12005-fu to the "assumption" that the lead present was in a form big enough to be sieved and separated when there was no evidence to suggest there were not other contaminants in the soil.
John Hankins, the defendant's expert, is Vice-President of Fuss O'Neill, an environmental and engineering firm. He has had approximately twenty (20) years of experience in the field of hazardous waste, site remediation, and site characterization and has done in excess of five hundred (500) environmental assessments and three-five (3-5) assessments of shooting ranges. He visited Metacon twice, walked the property, observed the state police firing range to the north of the site, and reviewed the Santovasi sampling data and other earlier correspondence re whether Metacon's property was contaminated. He described the physical barriers to the property as consisting of an eight-(8) foot high chainlink fence which controlled access to the firing range (though the fence could be climbed or walked around) and required a magnetic keycard for entrance, a lower fence with placards announcing private property around the edges of the property, dense vegetation (woods with underbrush) along the edges of the firing line, and wetlands with vegetation behind the berm. Tr., 7/22/05 — a.m., pp. 6-7. He was retained to review the sampling data of Santovasi and to himself assess site conditions and the risk to human and ecological health. He noted the existence of the state police firing range to the north of Metacon which had "similar or potentially even higher lead concentrations" than the defendant site because older and more extensive in size and he testified Aquarian Water Company, located one property north of the state police firing range, maintained two wells on its site as backup wells for drinking water and were thus tested annually for water quality. With regard to the latter, Exh. J (the 1995 Diversion Permit Application for those wells), included a geological cross-section, a slice through the earth taken from Talcott Ridge across the valley and the Farmington River showing geologic conditions below the ground surface. That was of significance because of the concern lead contamination could get into a ground water supply for drinking. The "slice" showed a red bedrock layer on the bottom and, immediately above that layer, a sand and gravel layer one fifty-two hundred feet (150-200 ft.) below ground level; above that layer was a very thick, clay rich unit, the significance of which is that "it's virtually impossible . . . to move water from these upper layers — from the surface layer into the unit that people are drinking because this clay doesn't allow any significant amount of water to pass." Tr., CT Page 12005-fn 7/22/05, a.m., p. 21. That clay area was approximately 100-150 feet deep. He noted that, when a landfill was closed, the DEP required a clay layer of only one-two (1-2) feet on top of the landfill to shed water). "[T]hat same very thick clay layer can be expected up and down the valley along the Farmington River." Id., at 23. A fine sand material of approximately fifteen (15) feet in thickness topped the clay layer. Hankins thought the neighboring golf club in view of its likely use of herbicides, pesticides, and fertilizers was also a "potential offender" vis-a-vis ecological impact. Id., at 24. The value of Hankins' testimony lay in the following:
a) Exh. F, a letter from then DEP Commissioner Rocque to Attorney General Blumenthal on 4/23/04, was in response to correspondence from Avon and Simsbury residents concerning "safety, noise, and lead" from activities at the site. Commissioner Rocque concluded therein there was no unreasonable threat to the safety of visitors to nearby Talcott Mountain State Park and that, with regard to noise concerns (presumably from this site and the state police range also referenced), C.G.S. § 22a-74a "exempts shooting ranges from civil and criminal liability for noise and noise pollution in accordance with certain conditions." Regarding potential lead contamination at Metacon, the DEP, Rocque stated, had received a report from the gun club presenting the only analytical results on samples collected from their on-site water supply well, groundwater, and surface water, all of which "indicated that lead was not detected or was present in groundwater and surface water below action levels." Id. He added the Club was reviewing the guidance manual developed by the EPA ("Best Management Practices for Lead at Outdoor Shooting Ranges") to determine what, if any, additional measures should be implemented to manage lead at the range. No further action was indicated.
b) The report referenced above in Rocque's letter was a multi-page report with attachments dated April 8, 2004, from Leggette, Brashears Graham, Inc., a professional ground-water and environmental engineering company which had been requested by the Connecticut DEP to sample ground and surface water at the site to determine the presence of lead and, if present, to detect whether lead amounts exceeded CT Page 12005-fo applicable regulatory thresholds. It concluded, "Metacon's long-term shooting activities . . . have not caused environmental harm or an environmental threat to water resources in the surrounding area . . ." Exh. D, p. 1. It also noted Metacon had, in 1991, installed an engineered soil embankment on the eastside of the pistol range to absorb bullets and had installed three (3) shallow monitor wells off the north end and behind the embankment. The monitor wells, "sampled several times in 1991-1992," showed no sample exceeding this state's drinking water standard for lead and most of the samples tested were below the method detection level. Id. It stated the DEP had, in October of 2003, sampled the monitoring wells and a wetland location on site with "grab" samples believed to result in skewed data. Id., at 2. Thus, Leggette, Brashears undertook, in March of 2004, monitor well redevelopment and sampling as documented in Exh. D.
c) This state's DEP provides no specific guidance for shooting ranges but instead referred Hankins to the EPA's Best Management Practices Guidelines to address lead management at shooting ranges. The EPA does not there suggest soil remediation at active ranges (only at closed ranges) but recommends bullets be removed from the soil and the soil re-used. Exh. 3, Section 3.3., pp. 111-11 through 111-15. Raking and/or sifting of bullet fragments is an EPA approved best management practice. Id.
d) Metacon has implemented an Environmental Stewardship Plan (Def's Exh. I) which follows the EPA Best Management Practices guidelines "right down the line." Tr., 7/22/05, p. 37.
e) His inquiry of the DEP whether there were in the vicinity of Metacon any state or federally protected wildlife species was met with the 11/15/04 response from Dawn McKay, Biologist/Environmental Analyst that, using the map of the club provided and Natural Diversity Data Base information, there were "no known extant populations of Federal or State Endangered, Threatened or Special Concern Species that occur at the site in question." Def's Exh. E. Ms. McKay continued, "However, in March of 2004, we responded to CT Page 12005-fp a request concerning this property but the requestor delineated a larger project boundary." Id. The map which accompanied that request defined a significantly larger area (Exh. B, p. 3). The response to that inquiry listed one (1) species of falcon as "endangered" and eleven (11) other species of wildlife as being of "special concern." Id., at pp. 4-5.
The "requestor" was plaintiff's counsel. Def's Exh. B, p. 2.
f) Hankins noted it was "fairly common" that soil would have high levels of leachable lead yet ground water not be impacted and he likened it to our gasoline for cars previously having contained lead which went out tailpipes and became concentrated along the highways. Tr., 7/22/05, at 39. He testified he saw little evidence on his walk through the property that the public was accessing the site and no evidence of foot traffic from the heavily forested areas to the north and south of Metacon and that there was in his view "no exposure pathway there" and therefore "no risk" primarily because one could not walk through the wetlands without being in mud up to one's waist, the two (2) different kinds of fencing surrounding the property, etc. Id., at 41. It was" exposure" to lead that makes it "hazardous." Id., at 43. His opinion was that the conditions at the Club did not represent a substantial threat to humans, wildlife, or the ecology. Id., at 44. Hankins' entire report is Exh. B.
On cross-examination, Hankins agreed: a) one could trespass on the property and access the shooting range by going between the wire fencing and the building or by walking through bushes on the boundary line (Tr., 7/22/05, at 52); b) earlier monitoring of monitoring wells produced certain ground water samples with lead concentration of 0.12 when the protection criterion for lead is 0.015 mg/liter ( Id., at 55); c) that the Club supports conservation efforts and/or nature walks that may bring the public to the site on occasion ( Id., at 71-72); and d) that he observed deer paths through the surrounding wooded area and droppings of various small mammals ( Id., at 74).
Hankins took issue with Santovasi's ground-water results to the extent that they included "total metals" analysis (as well as a "dissolved metals" analysis) since the former produces a silty sample if improperly sampled; he believed dissolved metals analysis was a better indication of what is truly in the water because people drink clear water — not silty CT Page 12005-fq water when they drink from a well. Id., at 57. He also testified that, in the process of sampling water from a monitoring well, the formation is stirred up and silt (which has naturally occurring lead) gets in the water such that it is "very, very common to get excedences (sic) of the regulatory criteria when they don't, in fact, exist." Id., at 57. He agreed, however, that some of Santovasi's data pertinent to the left of the base of the berm fell "slightly below" the acceptable PH range of the EPA's Best Management Practices guidelines which increased the potential for leaching ( Id., at 83) and that Santovasi's soil sampling data at Table 4 of Exh. 4 exceeded pollutant mobility criteria which, by implication, required the conclusion the soil had the potential to pass rainwater above drinking water standards. Id., at 81.
In fact, as the Leggette, Brashears report of 4/8/04 (Exh. D) indicated regarding the sampling event of 10/23/03, the .12 lead reading from a monitoring well was the result of "grab" sampling which produced particulate matter in the samples. Hankins' opinion was this lab data produced readings "almost certainly" higher than is representative of true ground water quality. Tr., 7/22/05, at 103.
Michael Palmer, the Chairman of the Club's Environmental Committee, testified he wrote the Environmental Stewardship Plan (Def.'s Exh. I), having studied the EPA's Best Management Practices for Lead at Outdoor Shooting Ranges (Jan. 2000). He described the cleanup of loose sand and the raking of indoor and outdoor ranges. The Plan continues in effect this date. Prior to implementation of the Plan on 7/13/04, lead bullets were picked up as part of the annual spring cleanup the members annually conducted. Gary Lenk, club President, testified to four (4) area police departments having memberships and using the site for training and said no night shooting occurred at Metacon though it did at the state range contiguous to this site. He noted the club was a private club which operated on membership dues and opined that membership would be reduced by approximately fifty percent (50%) if outdoor shooting were not permitted and that the costs of remediation, if required, would have a "severe" impact on membership. He stated the firing line at the range was 150' wide and included twenty-two (22) bays. It was his opinion that to enclose the range would result in the departure of wildlife because of the reduced area of grass on which the wildlife thrives.
Like Palmer, Lenk is a former police officer; he is employed as a gunsmith and salesman at an area gun exchange and is also a firearms instructor.
Adjudication
The plaintiff's proposed Order for Temporary Injunction of July 22, 2005, asks the court to: a) enjoin outdoor shooting; b) permit indoor shooting — either alone at the site's indoor range or within a fully enclosed structure extending from the berm to the firing range; c) order Metacon investigate the extent of lead contamination and remediate to 500 ppm soils and wetlands sediments not enclosed per (b) above; d) order that until remediation is completed, the defendant post and maintain "conspicuous" signs no more than fifteen (15) feet apart around the site's entire perimeter, which signs warn "of a significant environmental hazard"; e) order the defendant to submit to the court and counsel "weekly" updates on its compliance as above; f) order the CT Page 12005-fr defendants bear the entire cost of such compliance; and g) order the plaintiff post a $6,000.00 cash or surety bond with the clerk of the superior court.
Attached to the Proposed Order is a schematic drawing by Steel Master Buildings and an estimated cost for a 50' x 300' enclosure. The building is soundproofed and includes a baffling system designed to prevent lead from leaving the structure and to "remove pathways for lead to involuntarily reach human and/or wildlife receptors." The estimated cost is $225,000.
In its brief, plaintiff bases the amount of the bond on the estimated cost of enclosure ($225,000) — which would cost members of the club $300 each. The Proposed Order suggests a bond of $6,000; p. 7 of the plaintiff's brief suggests a bond of $9,000 — which, plaintiff states, represents a $300 assessment to each member of the Society. The court has no way of knowing which bond amount is intended.
Probable cause for PJR purposes is a bona fide belief in facts essential under the law for the action and such as would lead a reasonable, prudent person to entertain such belief. Dufraineau v. CHRO, 236 Conn. 250, 261 (1996). It is an extraordinary remedy — more so here in view of the overbreadth of the Proposed Order. It needs first be stated the estimated $225,000 is the cost of enclosing a structure one-third (1/3) of the width of the present firing range; it would therefore reduce the number of bays within the present structure from the existing twenty-two (22) to approximately seven (7) if the width of the existing bays were not considerably diminished. The effect would be to dramatically reduce shooting activities at this site at considerable cost to Metacon in reduced income and, if the testimony of Lenk is believed, necessitate reduced use of the facility by municipal law enforcement departments. Further, the estimate of cost appears not to include the cost of ventilation — obviously necessary for the proposed enclosure. The court cannot state therefore with any certainty what the cost of the proposed remedy is — or, therefore, the true effect of the same on Metacon.
The plaintiff asks this court to order what the EPA does not mandate without any showing of the extent, if any, of the alleged contamination in the face of: a) the Connecticut DEP's indication there are not, in the immediate vicinity of the Club, any endangered or threatened wildlife species; and b) no evidence of any harm to human health, wildlife, wetlands, vegetation, etc. Though irreparable harm need not be shown in statutory injunction cases, the Society offers no authority for the preposition no harm need be shown. "The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer (irreparable) harm." Wallingford v. Werbiski, 274 Conn. 483, 494 (2005). Plaintiff's two (2) experts were agreed there was the need to do a quantitative risk assessment and that the limited data obtained to date permitted them to state only that, if the data obtained (not all of which was reliable for reasons here earlier stated) were in fact representative of the entirety of the site, there would be likely impact to the environmental media. Santovasi iterated he did not do a risk assessment and could only state there was "a risk" to ground water quality. "We just don't have the data to show that an impact has occurred." Tr., 6/30/05 — a.m., p. 97. Collins testified to a "gap" CT Page 12005-fs in data, to a "minimal amount of data" "suggestive" of high potential for ecological and human health risk. Tr., 6/30/05 — p.m., p. 15. As earnest a witness as Collins was, the court notes that he had involvement with only one (1) risk assessment involving a gun club, was not familiar with the EPA's Best Management Practices, and agreed that, even given what he described as significantly high ("not trivial") numbers here ( Id., at 12), the end result of doing what was not done here (a quantitative risk assessment) "could also be negligible." Tr., 6/30/05 — p.m., p. 56. Given the presence of a nearby water company that maintains backup wells used for drinking water and that company's regular monitoring of the quality of the water in those wells, this court cannot conclude, as does the plaintiff, there has been a showing of "unreasonable pollution." Brief, at 3, 4, 5, 6, 7. Nor does the court agree with the plaintiff's assertion that, under C.G.S. § 22a-17(a), a defendant "can overcome a prima facie case only by asserting defenses set forth" therein (Brief, at 2). The statute specifically provides a defendant may "rebut the prima facie showing by the submission of evidence to the contrary." Finally, the shortcomings of the Proposed Order preclude the entering of a clear Order particularly where, as here, the balancing of the equities favors the defendant in view of the failure of the evidence to establish a substantial probability of harm. It is further relevant that the proposed Order not only requests Metacon be enjoined from continuing certain activities but it asks this court to order the defendant to take the kind of affirmative steps which are not only suggestive of an action for mandamus but should be ordered, if at all, only at the conclusion of a full trial on the merits.
As earlier stated, the EPA Best Management Practices for Lead at Outdoor Shooting Ranges, does not recommend remediation as a management technique. All of the evidence was that remediation is performed only at closed (as opposed to "enclosed") ranges.
It also provides for the pleading of specific affirmative defenses. The court also takes issue with plaintiff's statement that Metacon "acknowledges" the fact that all sediment samples from the vernal pool behind the berm detected lead levels exceeding DEP's Remediation Standards Regulations are "due to its actions." It then cites to testimony of Santovasi, Collins, and Hankins — none of which establish the same.
The court does not devalue the importance of safeguarding this state's natural resources or the role of private attorney generals such as the plaintiff in accomplishing the same. Nor does the court conclude the plaintiff cannot prevail at trial. What she does conclude is that, under the circumstances detailed here and the evidence offered, it is inappropriate to order either enclosure of the facility or remediation as proposed, a result which not only unnecessarily intrudes upon the defendant owner's activities but which also unwarrantedly shifts the costs of the quantitative risk assessment to the defendant, a burden properly the plaintiffs for a full determination on the merits. Since, however, a quantitative risk assessment may in fact show significant harm to the environment as a result of shooting activities at Metacon, it is to be hoped that the Club will discontinue its participation in and/or sponsorship of public activities on site pending resolution at trial.
The application is denied.