Opinion
No. CV-00-0800791 S
April 21, 2003
MEMORANDUM OF DECISION
This action was tried to the court on March 4 and 5, 2003. Thereafter, pursuant to a schedule set by the court, the parties presented post-trial submissions. After considering the evidence and the arguments, the court issues this memorandum of decision.
I. Background
The plaintiff, Arthur J. Rocque, Jr., Commissioner of Environmental Protection (hereafter "plaintiff or "Rocque"), commenced this action by a six-count complaint, dated July 27, 2000. The plaintiff alleges that the defendants, Joseph Biafore, Jr.; Nicholas Biafore; Joseph Biafore, Jr. and Nicholas Biafore, d/b/a PDC Realty Company; and Joseph Biafore, Jr., d/b/a PDC Realty Company, Inc.; initiated, created, originated, or maintained a discharge of PCB contaminated material into the waters of the State of Connecticut at and around property located at 993 Honeyspot Road in Stratford, Connecticut (the "site"), without a permit for such discharge. See complaint, all counts. The first and second counts are addressed to Joseph Biafore, Jr. and Nicholas Biafore, and relate to the period 1980 to January 1, 1995. The third and fourth counts are addressed to Joseph Biafore, Jr. and Nicholas Biafore d/b/a PDC Realty Company, and concern the period from January 9, 1995 to May 4, 1995. The fifth and sixth counts cover the period from May 4, 1995 to the present and are directed to Joseph Biafore, Jr., doing business as PDC Realty Company, Inc. The first, third, and fifth counts are premised on claimed violations of General Statute § 22a-430; the other counts are based on claimed violations of General Statute § 22a-427.
The abbreviation "PCB" stands for polychlorinated biphenyl. See State v. Porter, 241 Conn. 57, 88 n. 31, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998).
As discussed below, after this matter was commenced, Shawn K. Splan, as administrator of the Estate of Nicholas Biafore, was substituted for Nicholas Biafore as a defendant.
General Statute § 22a-430 provides, in pertinent part, "(a) No 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 Statute § 22a-427 provides: "No person or municipality shall cause pollution of any of the waters of the state or maintain a discharge of any treated or untreated wastes in violation of any provision of this chapter."
Rocque seeks an injunction restraining the defendants from creating, originating, or maintaining any discharge into the State's waters without a permit, or in violation of existing permits; an injunction requiring the defendants to remediate and abate all pollution and contamination caused by the defendants' statutory violations; and monetary penalties. In response to the complaint, both Nicholas Biafore and Joseph Biafore, Jr. filed answers (##104 and 105) in which they either denied liability or left the plaintiff to his proof. At trial, Joseph Biafore, Jr.'s counsel stated that he was withdrawing Joseph Biafore, Jr.'s first and second special defenses (concerning failure to state a claim and innocent landowner status, respectively) and did not intend to offer evidence as to the fourth special defense, concerning innocent landowner status as to PDC Realty Company, Inc. The remaining third special defense is addressed to the fifth and sixth counts only, and alleges that Joseph Biafore Jr. has no individual liability for the acts of PDC Realty Company, Inc.
II. Facts
The court finds the following facts and credits the following evidence, except as noted. The history of ownership of the site is undisputed. By warranty deed, dated May 15, 1980, Nicholas Biafore and Joseph Biafore acquired the site. By quitclaim deed, dated January 9, 1995, they conveyed the site to themselves, doing business as PDC Realty Company. By quitclaim deed, dated May 4, 1995, they conveyed the site to PDC Realty Company, Inc.
In addition, other references to the facts are set forth in succeeding parts of this memorandum of decision.
PCBs are man-made chemicals which have been associated with a variety of toxic effects, including malignant tumors, reproductive disorders, and neurological disorders, particularly in children born to exposed mothers. They are extremely persistent in the environment once introduced, and do not readily break down. PCBs get into the environment through spilling onto the ground. They can also travel from the soil into groundwater and ultimately into surface water as well.
The site is located within a coastal area, which is an area that is considered to have influences from tidal waters. Nearby to the site are Johnson's Creek (to the west), a tidal inlet; and Long Island Sound (to the south). A large area of salt marsh, consisting of tidal wetlands, is situated to the southeast of the site. See Plaintiff's Exhibit 25.
In May 1993 a fire occurred at the Peasley Die Casting Company, Inc. foundry which was located at the site. The local fire department requested the Department of Environmental Protection (DEP) to come to the site because of environmental concerns. DEP noted the presence at the site of transformers and other equipment which potentially contained PCBs. In June 1994, DEP received a phone call from Enviroshield, Inc., a company which had done some test boring at the site and discovered soil containing PCBs. See Plaintiff's Exhibit 8.
Enviroshield conducted an environmental site assessment at the site for Joseph Biafore. See Plaintiff's Exhibit 9, dated July 6, 1994. The assessment included the placing of three monitoring wells. The purpose of the assessment was to determine whether or not pollution or contamination was present and to determine possible sources thereof. Enviroshield found soil at the site which was contaminated with PCBs in the amount of 640 parts per million, well in excess of the standard of ten (10) parts per million for an industrial site. See Plaintiff's Exhibit 10, which includes the results of Enviroshield's soil samplings, at monitoring well 3. In its assessment, at page 5, it states, "The area is low lying, probably tidally affected and is susceptible to frequent flooding." See Plaintiff's Exhibit 9. The assessment also notes, at page 7, that the site is underlain by stratified drift, which means that there are more spaces between particles, which allows water to move quickly through with little resistance, thereby permitting PCBs to move quickly as well.
The remediation standard for soil contamination is set forth in R.C.S.A. § 22a-133k-2 (b) (pages 7-8 of 66) and in the accompanying table in Appendix A thereto, entitled "Direct Exposure Criteria For Soil" (pages 30-34 of 66). The PCB standard for Industrial/Commercial (10 parts per million) is set forth on page 34 of 66.
As the tide comes in, the water level rises in Johnson's Creek, creating a head which pushes salt water into the ground radially, sending it out in all directions, including towards the site. At the site, groundwater moves from west to east. Any PCBs located in the groundwater at the site travel with the flow of the groundwater. When the groundwater height is raised closer to the surface, it comes in contact with the soil, picks up the PCBs which are in the soil, and then carries them to soils below the level at which they previously were located. Once in the groundwater, contamination flows with it toward the tidal wetlands and the Sound. PCB contaminants which were spilled in the soil at the site, and which have reached the groundwater, will travel to the surface water bodies which are near to the site.
DEP conducted an inspection of the site on July 11, 1994, which resulted in a notice of violation to the owners, Nicholas Biafore and Joseph Biafore, Jr., dated August 4, 1994, which directed them to remediate the PCB contamination which had been found. See Plaintiff's Exhibit 12 (NOV). In response to the NOV, the Biafores retained counsel, who advised DEP that the owners had retained the firm of Hygenix, Inc. of Stamford, Connecticut to conduct a remedial investigation. See Plaintiff's Exhibit 13.
DEP met with Hygenix in December 1994 to review its report. See Plaintiff's Exhibit 14, dated September 29, 1994. Hygenix did test borings and took soil samples at the site and found that PCBs were present at extremely high levels, in both the soil and in the groundwater. See Plaintiff's Exhibit 14, Table 1. For example, at one location, BH-10, the results showed 11,800 parts per million. PCB contamination was found in all of the soil depths that were tested at the site. Various results showed that the contamination was coincident in depth with the groundwater table. Extremely high contamination was found in the groundwater as well. See Plaintiff's Exhibit 14. These concentrations were found on the north side of the property, near Honeyspot Road. See Plaintiff's Exhibit 14.
The remediation standard for groundwater contamination is set forth in R.C.S. A. §§ 22a-133k-3 (b) (pages 22-23 of 66), and in 22a-133k-3 (f) (pages 26-27 of 66) and in the accompanying table in Appendix D thereto, entitled "Surface-water Protection Criteria for Substances in Ground Water" (pages 43-45 of 66). The PCB standard (0.5 parts per billion) is set forth on page 45 of 66.
The owners have never remediated the contamination. In their and their then-counsel's correspondence to DEP they stated that they did not have the resources to comply, that the site was no longer generating income, and referred to retirement and ill health as reasons for noncompliance. See Plaintiff's Exhibits 18, 21. By letter dated September 26, 1996 their then-counsel, William C. Spencer, Esq., proposed that the State should assume the responsibility for further investigation and remediation, and asserted that the contamination may have emanated from fill originating from a former Raymark facility, which was placed on the site. See Plaintiff's Exhibit 22. In response, DEP informed counsel that individual owners remained responsible for contamination located on their property. See Plaintiff's Exhibit 23. On August 4, 1997, DEP again wrote to Spencer, to advise him that DEP's NOV remained unresolved and asked for a progress report within two weeks. See Plaintiff's Exhibit 24. No response was received.
The contamination at the site presents a significant potential for harm to human health. The contamination in the soil poses a direct exposure hazard to humans through inhalation or dermal contact. While the likelihood of this type of exposure may be less due to the fact that pavement covers part of the site, the potential for exposure remains. The groundwater contamination presents a threat since groundwater migrates toward the nearby surface waters in which are food sources for both wildlife and the public. Plaintiff's witness, Lori Saliby, an environmental analyst with DEP, who is currently DEP's supervisor for its PCB program, and who has worked at DEP since 1989, noted that the groundwater contamination at the site is the worst she has seen and that the soil contamination is egregious. At this juncture, since the further investigation required by the DEP has not been undertaken by the owners, additional study is needed to ascertain how widespread the contamination at the site is and the extent of its concentration. Potential migration of the contamination from the site to other locations must also be measured. Once its extent has been determined, a plan would need to be formulated for its removal and the mitigation of its effects.
As noted, the fifth and sixth counts of the complaint are addressed to Joseph Biafore, allegedly doing business as PDC Realty Company, Inc. In response to the plaintiff's request for disclosure and production, Joseph Biafore provided information relevant to these counts. See Joseph Biafore's Answers and Objections to Plaintiff's First Request for Disclosure and Production, Plaintiff's Exhibit 26. In response to interrogatory 2, Joseph Biafore stated that he is responsible for PDC Realty Company, Inc.'s overall operations. In response to interrogatory 4, he stated that he owns fifty percent (50%) of PDC Realty, Inc., which, in response to interrogatory 2, he identified as being the same entity as PDC Realty Company, Inc.
The interrogatory answers are set forth in Plaintiff's Exhibit 26.
His answer to interrogatory 5 stated that, since January 1, 1993, he has been or was in charge of the day to day operations of PDC Realty Company, Inc. This entity has had no employees since that date. See answer to interrogatory 7. Since January 1, 1993, Joseph Biafore has functioned as a principal of a corporate landlord. The site has not been used for factory operations since that date; part of it has been rented for parking. See answer to interrogatory 6.
Joseph Biafore, Jr. identified himself as the responsible individual, for the "corporate landlord," PDC Realty Company, Inc., to correct violations of Connecticut's environmental requirements and to ensure environmental compliance at the site. See answer to interrogatory 8. In that capacity, he was or is the primary contact with regulatory bodies. See answer to interrogatory 9. Similarly, he has or has had responsibility for making the landlord's financial decisions related to the site. See answer to interrogatory 11. Since January 1990, there have been no board of directors meetings for PDC Realty Company, Inc. at which finances or environmental issues have been discussed. See answers to interrogatories 13 and 14. In response to interrogatory 13, Joseph Biafore, Jr. stated, concerning PDC Realty Company, Inc., "it is a real estate holding company and Joseph Biafore is the decision maker."
III. Discussion
A. Jurisdiction Over the Estate
As discussed, when this action was commenced, Nicholas Biafore was named as a defendant. The court's record demonstrates that he was served with process, and that his attorney filed an appearance on his behalf. Thereafter, an answer was filed on his behalf, dated December 7, 2000 (#104). On December 7, 2001, the plaintiff filed a motion to substitute administrator as party, in which it stated that Nicholas Biafore had died on April 16, 2000 (#109) ("motion to substitute"). In the motion to substitute, the plaintiff requested the court to order that Shawn K. Splan, as administrator of the Estate of Nicholas Biafore, be substituted as a party defendant in place of the deceased. By order dated February 20, 2002, the court (Lavine, J.) granted the motion to substitute.
The court's file reflects a signed appearance form, which was received by the court on October 2, 2000.
For ease of reference, the court refers to this defendant as "Splan."
The court's file does not reflect the filing of any pleading on Splan's behalf. At trial, Splan did not appear, either in person, or through counsel. In view of the circumstances, the court questioned whether it had personal jurisdiction over Splan. In plaintiff's memorandum of law on the issue of personal jurisdiction over the defendant administrator ("plaintiff's brief"), at page one, he concedes that he did not serve Splan; and that there is no record of the filing of an appearance form on Splan's behalf.
Thus, the record here differs from that in Connor v. Statewide Grievance Committee, 260 Conn. 435, 437, 797 A.2d 1081 (2002), where the defendant had been sent a copy of the appeal by certified mail, and then filed an answer. There, since the defendant did not challenge personal jurisdiction by a motion to dismiss, waiver of that claim was found. See id., 445-46. Our Supreme Court has stated that where the issue of jurisdiction has not been raised by the parties, the court has the duty to dismiss, "even on its own initiative," any matter which it lacks jurisdiction to hear. See Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985). Here, where Splan was not served, did not file an appearance, did not file a pleading, and then did not appear for trial, the court raised the issue of whether it had personal jurisdiction over Splan.
After review of the facts set forth in the submissions which accompany the plaintiff's brief, the court finds that it does have personal jurisdiction over Splan. "It is elementary that the [defendant] cannot be bound by the action of the court without reasonable notice and an opportunity to be heard." Middlesex Mutual Assurance Co. v. Clinton, 38 Conn. App. 555, 560, 662 A.2d 1319, cert. denied, 235 Conn. 922, 666 A.2d 1186 (1995), cert. denied, 517 U.S. 1104, 116 S.Ct. 1320, 134 L.Ed.2d 473 (1996). The court "may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." Commissioner, Environmental Protection v. Conn. Building Wrecking Co., Inc., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993).
A person may waive objection to an "erroneous exercise of personal jurisdiction if that party appears in the case, actively prosecutes the action or contests the issues . . ." (Citations omitted.) City of New Haven v. Local 884, Council 4, 237 Conn. 378, 386, 677 A.2d 1350 (1996). "The entry of an appearance need not necessarily be made by filing a formal appearance form. The conduct of a party may operate as a general appearance." Beardsley v. Beardsley, 144 Conn. 725, 730, 137 A.2d 752 (1957).
Here, the evidence shows that Splan was made aware of and participated in this action as a party defendant. In addition, in that capacity, he was represented before the court by the same counsel (Attorney Theodore R. Tyma of the firm of Kleban Samor, P.C.) who appeared earlier for Nicholas Biafore. In a motion for fees filed with the Shelton Probate Court, Splan noted that the Estate of Nicholas Biafore had been named as a defendant in a suit brought by the plaintiff. See Motion for Fees, ¶ 2, filed on May 10, 2002, part of Appendix C to the plaintiff's brief. He stated also that "The Estate must defend the suit in order to protect interests of the heirs and beneficiaries." Motion for Fees, ¶ 4. His statement for services rendered, dated May 9, 2002, also submitted with the Motion for Fees, reflects time spent conferring with Attorney Tyma in preparation for a May 2, 2002 pretrial conference on the instant matter which was held by the court (Bryant, J.). See App. C. to the plaintiff's brief.
In addition, Splan sent correspondence to the plaintiff's counsel, dated February 24, 2003, referring to " Connecticut v. Biafore," which also included his statement for services rendered for the period June 3, 2002 to February 27, 2003, reflecting that he attended the September 12, 2002 pretrial conference held by the court (Satter, J.T.R.) in this matter. See App. C. to the plaintiff's brief.
The statements of Kleban Samor, P.C. similarly reflect active participation in this matter by Attorney Tyma on Splan's behalf. For example, on May 2, 2002, he met with Splan concerning the pretrial which was held on that date and appeared before the court at the pretrial. See App. C. to the plaintiff's brief. On September 12, 2002, he prepared for the pretrial to be held on that date, spoke by phone with plaintiff's counsel concerning it, and attended it. See App. C. to the plaintiff's brief. Likewise, on January 21, 2003, he drafted correspondence to Splan and plaintiff's counsel concerning a proposed stipulation.
The rules of practice provide for the court to hold pretrial conferences in connection with pending matters. See Practice Book §§ 14-11 to 14-14; see also Allstate Insurance Co. v. Mottolese, 261 Conn. 521, 531, 803 A.2d 311 (2002). Counsel for Splan attended two pretrial conferences on Splan's behalf, and Splan personally attended one of these. This conduct, as supplemented by other related conduct described above, amounted to a general appearance on Splan's behalf in this matter. Splan has actively participated in this matter.
In addition, the court notes that Splan has not contested the facts recited in the plaintiff's brief, dated March 20, 2003, which reflects, at page 10, that copies thereof were served on Splan and his attorney.
At no time did Splan file a motion to dismiss to contest the exercise of personal jurisdiction by the court over him. "Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, `[a]ny plaintiff, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.' Practice Book § 10-30; see Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999) (`[t]he rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6')." Connor v. Statewide Grievance Committee, supra, 260 Conn. 445. Since no motion to dismiss was timely filed here, the court finds that Splan has waived any claim of lack of personal jurisdiction. See id. Accordingly, the court has personal jurisdiction over the Estate of Nicholas Biafore.
B. Liability
The plaintiff has proved that it is entitled to judgment on all six counts, which allege violations of General Statutes §§ 22a-427 and 22a-430, statutes which are part of the Connecticut Water Pollution Control Act, General Statutes §§ 22a-416, et seq. (the "act"), and which, respectively, prohibit pollution of any of the waters of the state and prohibit the maintenance of discharges of water, substance or material into the state's waters without a permit. Section 22a-430 has been termed "a strict liability statute. Therefore any violation of these statutes alone is sufficient to prove liability." Rocque v. Goodhall's Garage, Inc., Superior Court, judicial district of Hartford at Hartford, Docket No. CV-01-1803983 S (Feb. 4, 2002, Wagner, J.) ( 31 Conn.L.Rptr. 330); see also BEC Corp. v. Department of Environmental Protection, 256 Conn. 602, 617-18, 775 A.2d 928 (2001) (discussing strict liability in the context of the responsible corporate officer doctrine).
Concerning the first four counts, it is undisputed that, as individuals, Nicholas Biafore and Joseph Biafore, Jr. owned the site from 1980 until May 4, 1995, when they, doing business as PDC Realty Company, quitclaimed it to PDC Realty Company, Inc. The PCB contamination found to exist at the site in 1994 is their responsibility, even though there is no evidence that they, themselves, caused it. Rather, the evidence is clear that they maintained, and did not remediate, the contamination, for which there was no permit, which is sufficient to demonstrate their liability. The evidence before the court shows that PCB contamination is present at the site, in the soil and in the groundwater. See Kenney v. Galluzzo, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV-94-0544168 (May 15, 1997, M. Hennessey, J.).
As Joseph Biafore noted, in his objection to proposed judgment, page 1, dated March 18, 2003, "he concedes that he has failed to clean up PCB pollution on the property." The Estate of Nicholas Biafore bears the same responsibility.
As to the fifth and sixth counts, which are pleaded against Joseph Biafore, Jr., based on his activities in relation to PDC Realty Company, Inc. for the period from May 4, 1995 to the present, it is clear that the facts warrant a finding of liability as well. Our Supreme Court recently has adopted the "responsible corporate officer doctrine" in BEC Corp. v. Department of Environmental Protection, supra. Concerning General Statute § 22a-432, our Supreme Court held "that a corporate officer is personally liable for the abatement of a violation of § 22a-432 when (1) the officer is in a position of responsibility that allows that officer to influence corporate policies and activities; (2) there is a nexus between the officer's actions or inactions in that position and the violation of § 22a-432 such that the corporate officer influenced the corporate actions that constituted the violation; and (3) the corporate officer's actions or inactions resulted in the violation." Id., 618. The same standards ought to apply to the corporate violations of §§ 22a-427 and 22a-430 here, involving the responsible corporate officer of PDC Realty Company, Inc., where Joseph Biafore, the responsible corporate officer of that corporate owner, previously received and responded to the plaintiff's 1994 NOV, which was then directed to him as an individual owner of the site.
Section 22a-432 provides, "If the commissioner finds that any person has established a facility or created a condition before or after June 25, 1985, or is maintaining any facility or condition which reasonably can be expected to create a source of pollution to the waters of the state, he may issue an order to such person to take the necessary steps to correct such potential source of pollution. Any person who receives an order pursuant to this section shall have the right to a hearing and an appeal in the same manner as is provided in sections 22a-436 and 22a-437. If the commissioner finds that the recipient of any such order fails to comply therewith, he may request the Attorney General to bring an action in the superior court for the judicial district of Hartford to enjoin such person from maintaining such potential source of pollution to the waters of the state or to take the necessary steps to correct such potential source of pollution. All actions brought by the Attorney General pursuant to the provisions of this section shall have precedence in the order of trial as provided in section 52-191. An innocent landowner, as defined in section 22a-452d, shall not be held liable, except through imposition of a lien against the contaminated real estate under section 22a-452a, for any order issued under this section on or before August 1, 1990, which order is subject to appeal as of July 6, 1995, and, after July 1, 1996, for any order issued under this section after July 1, 1996."
In addition, the facts show that, during the relevant period, he has been responsible for PDC Realty Company, Inc.'s overall operations, as well as being an owner of 50% of the entity. He has identified himself as the individual responsible for correcting violations of Connecticut's environmental laws and for ensuring compliance at the site. He functioned as the primary contact with regulatory bodies and has or has had responsibility for making financial decisions concerning the site. The evidentiary record shows that there has been no operational board of directors. Joseph Biafore, Jr. has acted as the corporation's decision-maker. Again, as he concedes, it was he who failed to accomplish remediation at the site. Thus, all three factors set forth in BEC Corp. v. Department of Environmental Protection, supra, have been proved against Joseph Biafore, Jr. As our Supreme Court has stated, "under the act, a corporate officer may be liable for pollution resulting from omissions as well as from affirmative acts." Id., 619.
Further, a finding of individual liability here is "supported by the broad remedial purpose of the act, which is to protect the waters of the state from pollution. In Starr, we noted that the act was enacted to remedy `an inadequate statutory scheme especially as it pertained to the [water resources] commission's authority to order the abatement of existing sources of pollution.' Starr v. Commissioner of Environmental Protection, supra, 226 Conn. 378. The act was a declaration of war against water pollution, and it was intended to usher . . . in a new era in the treatment of our water resources. It embodies the concept that no one, whether individual, industry or community, has the right or privilege to render our water resources unusable by pollution." (Internal quotation marks omitted.) BEC Corp. v. Department of Environmental Protection, supra, 256 Conn. 621-22. "Imposing liability upon only corporations and not the individuals causing the harm to the environment would undermine the act's purposes." Id., 622.
In summary, the plaintiff has proven that he is entitled to judgment against the defendants Nicholas Biafore and Joseph Biafore, Jr. as to the first, second, third and fourth counts. In addition, the evidence reflects that the plaintiff is entitled to judgment against Joseph Biafore, Jr. as to the fifth and sixth counts.
C. Remedies
The plaintiff seeks injunctive relief and civil penalties. The DEP commissioner "has the authority pursuant to General Statutes § 22a-6 (a)(3) to sue for an injunction to enforce § 22a-427." (Footnote omitted.) Keeney v. Town of Old Saybrook, 237 Conn. 135, 157, 676 A.2d 795 (1996). Proof of irreparable harm and the lack of an adequate remedy at law are not required as prerequisites for the issuance of injunctive relief in these circumstances. "[T]he enactment of the statute by implication assures that no adequate alternative remedy exists and that the injury was irreparable, that is, the legislation was needed or else it would not have been enacted." (Internal quotation marks omitted.) Conservation Commission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984).
General Statute § 22a-6 (a)(3) provides that the commissioner may "initiate and receive complaints as to any actual or suspected violation of any statute, regulation, permit or order administered, adopted or issued by him. The commissioner shall have the power to hold hearings, administer oaths, take testimony and subpoena witnesses and evidence, enter orders and institute legal proceedings including, but not limited to, suits for injunctions, for the enforcement of any statute, regulation, order or permit administered, adopted or issued by him . . ."
In his objection to proposed judgment, at page one, Joseph Biafore, Jr. objects to the plaintiff's proposed injunctive relief, claiming that it will "impose requirements on Mr. Biafore with which he cannot comply due to illness and financial inability to perform." Evidence of Mr. Biafore's current medical condition and financial status are not before the court. In oral argument at the trial, his counsel also stated that since Mr. Biafore could not comply, he expected to be before the court again on postjudgment contempt proceedings initiated by the plaintiff. At this stage it would be premature for the court to address such an issue.
At trial, an objection by the plaintiff to the presentation of medical records was sustained. See Defendant's Exhibit A for identification.
Here, because of a serious threat to human health, injunctive relief is warranted to determine the full extent of the contamination, to develop a plan and schedule for remediation, to accomplish remediation, and to assure post-remediation monitoring. In its separate Judgment, of even date herewith, the court has issued an injunction directed to the defendants.
In addition, pursuant to General Statute § 22a-438, the plaintiff seeks a civil penalty of $55,000.00. "In imposing a civil penalty, the court may consider `the nature, circumstances, extent and gravity of the violation, the person or municipality's prior history of violations, the economic benefit resulting to the person or municipality from the violation, and such other factors as deemed appropriate by the court. The court shall consider the status of the person or municipality as a persistent violator.' General Statutes § 22a-438 (a)." Keeney v. Town of Old Saybrook, supra, 237 Conn. 168.
Section 22a-438 provides, in pertinent part, "(a) Any person who or municipality which violates any provision of this chapter, or section 22a-6 or 22a-7 shall be assessed a civil penalty not to exceed twenty-five thousand dollars, to be fixed by the court, for each offense. Each violation shall be a separate and distinct offense and, in case of a continuing violation, each day's continuance thereof shall be deemed to be a separate and distinct offense. The Attorney General, upon complaint of the commissioner, shall institute a civil action in the superior court for the judicial district of Hartford to recover such penalty. In determining the amount of any penalty assessed under this subsection, the court may consider the nature, circumstances, extent and gravity of the violation, the person or municipality's prior history of violations, the economic benefit resulting to the person or municipality from the violation, and such other factors deemed appropriate by the court. The court shall consider the status of a person or municipality as a persistent violator. The provisions of this section concerning a continuing violation shall not apply to a person or municipality during the time when a hearing on the order pursuant to section 22a-436 or an appeal pursuant to section 22a-437 is pending."
In addition, our Supreme Court has listed a set of factors to be considered by the court when penalties of this type are sought. "Those factors include, but are not limited to: (1) the size of the business involved; (2) the effect of the penalty or injunctive relief on its ability to continue operation; (3) the gravity of the violation; (4) the good faith efforts made by the business to comply with applicable statutory requirements; (5) any economic benefit gained by the violations; (6) deterrence of future violations; and (7) the fair and equitable treatment of the regulated community." Carothers v. Capozziello, 215 Conn. 82, 103-04, 574 A.2d 1268 (1990).
Well over eight years have elapsed since PCB contamination was discovered at the site and the NOV was issued. At $25,000.00 a day, the maximum penalty would be in the many millions of dollars. Here, there is no evidence that the Biafores individually were involved in contaminating the site. While they engaged Enviroshield and Hygienix to preliminarily assess the extent of the contamination, the fact that a complete assessment of its depth and breadth has not occurred is due to the fact that the owners did not go further, as required by the DEP. As noted, after 1997, communications to DEP from the site's owners ceased. Thus, beyond the serious contamination described above, its full extent and gravity are not yet known. Apparently, the Biafores have no prior history of violations, since such a history has not been presented.
It is unclear what economic benefit the Biafores have derived from the contamination. While manufacturing at the site has not occurred in recent years, it has been used for parking. Evidence of the income stream derived from this use is not before the court. Likewise, since the extent of contamination has not been fully ascertained, it is unclear what the cost of remediation would have been had the owners undertaken it. Thus, the court cannot determine to what extent the owners' failure to remediate has allowed them to retain economic benefit from the unremediated use of the site as a source of income.
In the absence of such evidence, the court is also unable to measure the effect of the proposed penalty or injunctive relief on the business operation at the site. It appears unlikely that either Joseph Biafore, Jr. or the Estate of Nicholas Biafore will engage in future violations.
Thus, the evidence here contrasts sharply with the record before the court in Keeney v. LS Construction, 226 Conn. 205, 626 A.2d 1299 (1993), where the court imposed a civil penalty of over $1.0 million. See id., 207. There, the "defendants' violations were severe and extremely serious. Not only did the defendants dump toxic demolition debris near water supplies at the various sites but also dumped it next to the Housatonic River in New Milford in huge quantities. The 51,000 cubic yards of waste at that site were buried over a 2 acre area up to 18 feet deep. They totally dumped over the five sites in excess of 58,000 cubic yards of waste. Of further significance is that much of this dumping occurred after the defendants were told by the authorities that they were violating the law. The defendants made substantial profits as a result of their illegal dumping, not only because they entered into profitable contracts for the illegal disposal of demolition debris but also because they did not incur the costs associated with lawful disposition. They had profited from a contract to transport and dump demolition material from New York at $8 per cubic yard and they had saved the costs of proper disposition in an amount in excess of $1,000,000." (Internal quotation marks omitted.) Id., 215.
Here, there is no evidence to indicate that dumping occurred after the DEP issued the NOV or that the owners derived substantial profits in part as a direct result of violating the law. Nevertheless, a civil penalty is warranted in view of the seriousness of the contamination which is known and in view of the fact that it has gone unremediated. Such a penalty is also required to deter others from future violations. After considering the circumstances, the court finds that the plaintiff's proposed civil penalty of $55,000.00 is reasonable and appropriate. Accordingly, it has made such a penalty a part of its Judgment.
CONCLUSION
The plaintiff has proved that he is entitled to the entry of judgment on each of the counts of the complaint. The court has awarded the relief set forth in its accompanying Judgment. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT