Petition for Writ of Certiorari — Cadlerock Properties Joint Venture, L. P. v. Connecticut Commissioner of Environmental Protection

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

() 00 97 4 DEC 1320

OFFICE OF THE CLERK

In The

Supreme Court Of The United States

CADLEROCK PROPERTIES JOINT VENTURE, L.P.,

Petitioner

Vv.

COMMISSIONER OF THE CONNECTICUT

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

AND THE CONNECTICUT DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CONNECTICUT

PETITION FOR WRIT OF CERTIORARI

WITH APPENDIX

JILL HARTLEY*

RYAN BARRY

SABIA & HARTLEY, LLC

190 Trumbull Street

Suite 202

Hartford, CT 06103

(860) 541-2077

*Counsel of Record for

Petitioner

service by

PRINTING SERVICES INC

CALL 800.842.0008

QUESTIONS PRESENTED

Does the judgment of the Connecticut Supreme Court,

by failing to recognize that a victim of selective

prosecution need not demonstrate that parties are

identical in all respects in order to establish an equal

protection claim, conflict with the decisions of the

United States Courts of Appeals for the First, Seventh

and Eighth Circuits which all hold that the victim of

selective prosecution and the parties to whom the

victim compares itself need not share all of the same

traits?

Does the judgment of the Connecticut Supreme Court,

to the extent that it holds that a selective prosecution

claim under equal protection law cannot be

established by means other than an improper

classification such as race or religion or bad-faith

intent to injure the recipient of an agency order,

conflict with the decisions of this Court and the

United States Courts of Appeals for the Second and

Third Circuits which hold that a party can establish an

equal protection claim of selective enforcement

merely by demonstrating that -the challenged

government action was arbitrary?

PARTIES AND RATE

DISCLOSURE STATEMENT

. PE, Se . : aa.

v t- r 7”

Ly ses a,

The caption of the case contains the name of all

parties to the case. Petitioner, CadleRock Properties Joint

Venture, L.P., has no parent corporations.

0S Stall A pind ea te cae

ABL NTEN

TABLE OF AUTHORITERS oo... 6 oc ocscccccccn. Vv

OPINIONS AND ORDERS OF THE COURTS AND

ADMINISTRATIVE AGENCIES BELOW ........... 2

PI cans ccd cians a Widusc cae 3

CONSTITUTIONAL AND STATUTORY

ve gs Er 3

STATEMENT OF THE CASE ..................... 3

REASONS FOR GRANTING THE WRIT ............ 8

THE CONNECTICUT STATE SUPREME

COURT HAS RENDERED A DECISION

IN CONFLICT WITH DECISIONS OF

THIS COURT AND THE COURTS OF

APPEALS FOR THE FIRST, SECOND,

THIRD, SEVENTH AND EIGHTH

I TaGhC A onan Ceca. you 8

A. The United States Courts Of Appeals For

The First, Seventh and Eighth Circuits Have

Ruled, Contrary To The Judgment Of The

Connecticut Supreme Court, That In Order

For A Victim Of Selective Prosecution To

Establish That It Was Treated Differently

-lil-

From Others Who Were Similarly Situated,

It Need Not Demonstrate That The Parties

Were Identical In All Respects

This Court And The Courts Of Appeals For

The Second and Third Circuits Have Found

A Claim Of Equal Protection To Be

Established By A Showing Of Arbitrary

State Action

CONCLUSION

APPENDIX TABLE OF CONTENTS

TABLE OF A

CASES:

Bolling v. Sharpe, 347 U.S. 497 fo) eRe ESE I DEE pe 9n.1

City of Cleburne, Tex. v. Cleburne Living

Center, Inc., 473 U.S. 432 CiBee? ei 9

Esmail v. Macrane, 53 F.3d 176 (P Ce: 1988) 5 ota 9-12

Klinger v. Dept. of Corrections, 31 F.3d 727

Cte 8... ee 9,10n.2

LeClair v.Saunders, 627 F.2d 606 (2d Cir.1980) 13, 14, 16

Oyler v. Boles, 368 U.S. 448 (eee 6c 8, 12-16

Reynolds v. Sims, 377 U.S. 533 | Speer 10 n.2

The Dartmouth Review v. Dartmouth C ollege,

889 F.2d 13, 19 (1* Cir.1989) .......... 9, 10, 11

United States v. Armstrong, 517 U.S. 456 (1996) ....8, 16

United States v. Berrios, 501 F.2d 1207 (2d

RPO £44.55 vgn Oia as Oe 13, 14, 16

United States v. Mississippi Valley Generating

Co., 364 U.S. $20 (1961) ................ 14 n.5

United States v. Torquato, 602 F.2d 564

RCT ota 15, 16, 16n.6

Wayte v. United States, 470 U.S. 598 (1985)

Weinberger v. Weisenfeld, 420 U.S. 636,

638, n.2 (1975)

Fifth Amendment To The Constitution Of

1) L? ok ss Fe eee

Fourteenth Amendment To The Constitution Of

DO UNOS BUNNND vc cccccccaceoctscetuscenue

STATUTES:

28 UBS. § LSA 0 is 06 énecldvesscssb asus

28 USK. § SCO) 6c ccvcticvewacsssessseetee 3

Connecticut General Statute § 22a-225(a) ........3, 5,10

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

CADLEROCK PROPERTIES JOINT VENTURE, L.P.

Petitioner

Vv.

COMMISSIONER OF THE CONNECTICUT

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

AND THE CONNECTICUT

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT

OF THE STATE OF CONNECTICUT

The Petitioner, CadleRock Properties Joint Venture,

L.P., prays that a writ of certiorari issue to review the

judgment of the Connecticut Supreme Court entered on July

18, 2000.

OPINIONS OF THE RT BELOW

The order of the Connecticut Supreme Court (the

“En Banc Order”), which was entered on September 14,

2000, is reprinted in the appendix to this petition at App.

A77.

The judgment of the Connecticut Supreme Court (the

“Judgment’”’) is reported at CadleRock Properties Joint

Venture, L.P. v. Commissioner of Environmental Protection

et al, 253 Conn. 661 (2000), and is reprinted at App. Al.

The memorandum of decision of the Connecticut

Superior Court, McWeeney, J., of May 5, 1999 (the “Trial

Court Decision’) is reported at CadleRock Properties Joint

Venture, L.P. v. Commissioner of Environmental Protection

and the Department of Environmental Protection, No. CV

980492629S, 1999 WL 311204 (1999)(Conn.Super.), and is

printed at App. A24.

The final decision of the State of Connecticut

Department of Environmental Protection, Donald H.

Levenson, Hearing Officer, of October 23, 1998, which final

decision is captioned Jn the Matter of CadleRock Properties

Joint Venture, L.P. (the “Final Decision”’) is printed at App.

A39.

The Order of the State of Connecticut Department of

Environmental Protection, Order SRD No. 088 (the “Order’’),

is printed at App. A65.

JURISDICTION

Fhe judgment of the Connecticut Supreme Court was

made and entered on July 18, 2000, a copy of which is

reprinted at App. Al. Subsequent to the judgment, an order

of the Connecticut Supreme Court was made and entered on

September 14, 2000, which order denied petitioner’s Motion

for Reconsideration En Banc. See copy of En Banc Order

App. at A77. The jurisdiction of this Court is invoked under

28 U.S.C. §1257(a), which statute is reprinted at App. A82.

This petition to review the judgment is timely filed within

ninety days of the Order Denying Reconsideration. See

Supreme Court Rules 13.1 and 13.3: see also 28 U.S.C.

2101(c) reprinted at App. A83.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the following constitutional

provisions: the Fifth Amendment to the United States

Constitution; the Fourteenth Amendment to the United States

Constitution. Pursuant to Supreme Court Rule 14.1(f), the

text of these provisions is set forth at App. A79-A81. This

case also involves Connecticut General Statute § 22a-225, the

text of which is set forth at App. at A85-A86.

STATEMENT OF THE CASE

Petitioner is the owner of certain real property known

as 392 and 460 Squaw Hollow Road in Ashford and

Willington, Connecticut (the “Site”). Transcript of hearing

(Nov. 25, 1997) p. 33, lines 15-16, reproduced in the

Appendix at page A95-96.

This petition arises out of an order, dated August 15,

1997, in which the Connecticut Department of Environmental

Protection (“DEP”) alleged that there is ground water and soil

pollution at the Site and that solid waste in excess of 10 cubic

yards was disposed of at the Site without a permit. See Order

SRD No. 088 (the “Order”) at page 1; App. at A65. The

Order requires Petitioner to investigate the environmental

condition of the Site and to devise a scope of study in

connection with same including a monitoring of the condition

of the soil and water at the Site. Id., at p. 2; App. at A67-68.

The Order further requires Plaintiff to remove solid waste

allegedly disposed of at the Site. Id.

When the Petitioner obtained title to the Site, the Site

was already contaminated. See Tr., Dec. 11, 1997, p. 83,

lines 8-13; App. at A137. DEP conceded that it did not have

any evidence that Petitioner created the contamination at the

Site. See Tr., Dec. 11, 1997, p.83, lines 3-7; App. at A137.

In 1992, DEP obtained a statement from Benjamin Schilberg

(“Schilberg’”’), a former lessee of a portion of the Site,

admitting that he burned wire at the Site with the use of

accelerants. See Tr., Dec. 11, 1997, p. 30, lines 8-10; p. 34,

lines 3-5; p. 70, lines 9-15; App. at A 109, A113, A135. DEP

concluded that Schilberg was responsible for lead

contamination in the soil at the Site. See Tr., Dec. 11, 1997,

p. 38, lines 8-18; App. at A119. Schilberg accepted

responsibility for any contamination which may have resulted

from his activities at the Site. Id. at p. 35, lines 22-24; p. 36,

lines 1-2; App. at A116, A117. Despite Schilberg’s apparent

willingness to cooperate, DEP never asked Schilberg if he

would voluntarily remediate the contamination for which he

was responsible. Id. at p. 47, lines 5-23; p. 50, lines 5-14;

App. at A125, A131. Nor did DEP ever issue an abatement

order against Schilberg. See Tr., Dec. 17, 1997, at p. 95; lines

-4-

14-24; App. at A141, A142.

During the same time period in which DEP refused to

pursue Schilberg, Schilberg’s son, Bernard Schilberg (the

“Son”), was appointed as a member of Connecticut’s

Underground Storage Tank Petroleum Cleanup Account

Review Board (an advisory board to the DEP). See Tr., Dec.

3, 1997, p. 87, lines 10-20; App. at A99. In that capacity, the

Son was acquainted with many high-ranking officials of DEP.

Id. at pp. 91-93; App. at A101-A106; Tr., Dec. 11, 1997, pp.

129-132; App. at Al43-A151.

DEP did not offer any explanation for its failure even

to ask Schilberg if he would voluntarily remediate his

contamination. DEP claimed that it did not issue a pollution

abatement order against both Schilberg and Petitioner because

that would delay DEP’s enforcement efforts due to arguments

among the co-defendants as to who was responsible for what

portion of the contamination. See Tr., Dec. 17, 1997, at p. 79,

lines 12-22; App. at A162.

DEP did not provide any explanation as to how its

pursuit of a confessed polluter of the Site and a non-poiluting

owner of the Site would somehow delay its ability to achieve

a cleanup of all of the contamination at the Site. Moreover,

DEP did not explain how its continuing failure to force

Schilberg to remediate his contamination at the Site or its

pursuit of Petitioner alone for all contamination at the Site

was somehow the most efficient way to clean up the entire

Site. Any disputes among the co-defendants regarding

liability would have been irrelevant due to the joint and

several liability imposed under C.G.S. § 22a-225. SeeC.GS.

§ 22a-225 reprinted at App. at A85-A86.

Based upon the DEP’s failure to pursue prior owners

and a confessed polluter of the Site, Petitioner appealed from

the Order, requesting an administrative hearing and asserting

the special defense of selective prosecution. See Final

Decision, App. at A39; see also Defendant’s Answer to the

Department of Environmental Protection’s Order; App. at

A87. After hearings were held before a hearing officer,

Donald Levenson (the “Hearing Officer’), the Hearing Officer

issued the Final Decision dated October 23, 1998 (the “Final

Decision”). The Final Decision affirmed the Order and

rejected Petitioner’s defense that the DEP selectively enforced

the abatement statute against Petitioner in violation of its

equal protection nights. See Final Decision, App. at A59-

A64. The Hearing Officer ruled that it need not decide

whether Petitioner had compared itself with a similarly

situated party because the Petitioner failed to establish that

DEP treated Petitioner differently than Benjamin Schilberg

out of a malicious or a bad faith intent to injure. See id. at p.

23; App. at A62.

On November 6, 1998, Petitioner filed an appeal to

the Connecticut Superior Court from the Final Decision of the

Hearing Officer. See Trial Court Decision, App. at A24.

Petitioner claimed that the Final Decision should be vacated

because the Hearing Officer mistakenly required that

Petitioner establish that DEP treated Petitioner differently

than Benjamin Schilberg out of a malicious or a bad faith

intent to injure when Petitioner was merely required to

establish that DEP’s conduct was based upon an arbitrary

standard or classification. See id. at pp. 12 and 14; App. at

A36-A37. The Trial Court Decision dismissed the appeal on

May 5, 1999, rejecting Petitioner's claim of selective

enforcement, and affirming the Hearing Officer’s imposition

of the burden upon Petitioner to prove a malicious or bad

-6-

;

. a

“*

“a

“

“bitte sap RR RES LARIAT RAH

faith intent to injure Petitioner on the part of DEP. See id.,

App. at A36-A37. The Superior Court further ruled that

Petitioner did not compare itself to other similarly situated

Owners of property, but rather to a non-owner who

participated in the pollution of the Site. See id.; App. at A37.

On May 25, 1999, Petitioner filed an appeal to the

Connecticut Appellate Court Claiming that the trial court

improperly affirmed the Hearing Officer’s decision that

Petitioner had failed to prove that DEP had engaged in

selective prosecution. See Judgment at p. 670; App. at A10.

Petitioner claimed on appeal that the trial court improperly

upheld the Hearing Officer’s determination that Petitioner did

not satisfy its selective prosecution claim because it neither

compared itself to other similarly situated parties nor proved

that DEP’s treatment of Petitioner was motivated by a

malicious or bad faith intent to injure Petitioner. See id. at

671-72; App. at A11-A12.

By Notice dated August 23, 1999, the Connecticut

Supreme Court transferred the appeal from the Appellate

Court to itself. The Connecticut Supreme Court affirmed the

trial court’s dismissal of Petitioner’s appeal from the Final

Decision and upheld the Order. See CadleRock Properties

Joint Venture, L.P. v. Commissioner of Environmental

Protection, et. al, 253 Conn. 661 (2000) (the “Judgment’’);

App. at Al. The Judgment affirmed the Final Decision and

the Trial Court Decision by holding twofold: (1) that

Petitioner failed to prove the first prong of a selective

treatment claim because it compared itself to a confessed

polluter and to a prior owner that was found to have been a

polluter, rather than to current non-polluting property owners;

and (2) that Petitioner did not demonstrate that DEP

maliciously singled it out with the intent to injure it. See id.

E. 3

at 671-72 and 673 n.11; App. at Al1-A12 and Al3-A14.

Subsequent to the Judgment, Petitioner filed a Motion

for Reconsideration En Banc with the Connecticut Supreme

Court, which motion was denied on September 14, 2000. See

Order at p. 1; App. at A77.

REASONS FOR GRANTING THE WRIT

THE CONNECTICUT STATE SUPREME

COURT HAS RENDERED A DECISION IN

CONFLICT WITH DECISIONS OF THIS

COURT AND THE COURTS OF APPEALS FOR

THE FIRST, SECOND, THIRD, SEVENTH AND

EIGHTH CIRCUITS.

A violation of equal protection by selective treatment

arises if: (1) the person, compared with others similarly

situated, was selectively treated; and (2) the selective

treatment was deliberately based upon an unjustifiable

standard such as race, religion, or other arbitrary

classification. Oyler v. Boles, 368 U.S. 448, 456 (1962);

United States v. Armstrong, 517 U.S. 456 (1996). “It is

appropriate to judge selective prosecution claims according to

ordinary equal protection standards. Wayte v. United States,

470 U.S. 598, 608-09 (1985).”

A. The United States Courts Of Appeals For

The First, Seventh And Eighth Circuits

Have Ruled, Contrary To The Judgment,

That In Order For A Victim Of Selective

Prosecution To Establish That It Was

-8-

‘

‘3

Treated Differently From Others Who

Were _ Similarl ituated, It N Not

Demonstrate That The Parties Were

Identical In All Respects.

The right to equal protection under the laws of the

Fourteenth Amendment to the United States Constitution does

not require that all persons be treated alike; rather it requires

only that all persons “similarly situated” to each other be

treated alike. See City of Clebume, Tex. v. Cleburne Livin

Center, Inc., 473 U.S. 432, 439 ( 1985).' It is not necessary,

however, that two similarly situated persons be similarly

Situated in all respects. Esmail v. Macrane, 53 F.3d 176, 179

(7" Cir.1995). Rather, it is only necessary for a plaintiff to

show that persons similarly situated in “all relevant aspects”

were treated differently. See The Dartmouth Review v.

Dartmouth College, 889 F.2d 13, 19 (1 Cir.1989) (citing

Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (gs

Cir.1985), cert. denied, 475 U.S. 1050 (1986). As the Court

of Appeals for the Eighth Circuit has held, the similarly

situated inquiry may focus merely upon such a relevant aspect

as whether “the [person challenging the government action is]

similarly situated to another group for purposes of the

challenged government action.” Klinger v. Department of

Corrections, 31 F.3d 727, 731 (8" Cir.1994),

' Petitioner was similarly entitled to equal protection under the Fifth

Amendment of the United States Constitution. See Fifth Amendment,

reprinted at App. at A79. Although the Fifth Amendment, unlike the

Fourteenth, does not contain an equal protection clause, it does contain an

equal protection component. Bolling v. Sharpe, 347 U.S. 497 (1954). See also

Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n.2 (1975) (“[Our] approach to

Fifth Amendment equal protection claims has . . . been precisely the same as to

equal protection claims under the Fourteenth Amendment.”).

-9.

The Judgment concluded that Petitioner failed to

prove the first prong of a selective treatment claim because it

compared itself to both a confessed polluter and a prior owner

believed to have been a polluter, rather than to a current non-

polluting property owner. This holding conflicts with the

foregoing authorities.

The rulings in Klinger, Dartmouth and Esmail cannot

be reconciled with the Connecticut Supreme Court’s

conclusion, in the Judgment, that Petitioner is not similarly.

situated to polluters and prior owners of the Site.

Connecticut’s environmental abatement enforcement statute

provides that abatement orders may be issued to “any person

who violates any provision of the chapter.” See C.G.S. § 22a-

225(a) reprinted in App. at A85. Under Klinger, the

appropriate group for comparison to Petitioner is all

individuals or entities that are, “similarly situated to another

group for purposes of the challenged government action.”

Klinger, at 731.7 For the Dartmouth Court, the appropriate

group for comparison is:

persons similarly situated in all relevant aspects . . .

[T]he relevant aspects [being] those factual elements

which determine whether reasoned analogy supports,

or demands, a like result. Exact correlation is neither

likely nor necessary, but the cases must be fair

congeners.

? This holding of the Klinger Court is consistent with this Court's

conclusion in Reynolds v. Sims, 377 U.S. 533, 565 (1964) (noting that“[t}he

concept of equal protection has been traditionally viewed as requiring the

uniform treatment of persons standing in the same relation to the governmental

action questioned or challenged.”’)

-10-

Dartmouth, 889 F.2d at 19. Plainly falling within the classes

of people delineated in Klinger and Dartmouth should be any

party responsible in whole, or in part, for contamination at the

Site. That analysis should hold true regardless of whether or

when they owned the Site and regardless of whether their

responsibility arises from their active contamination of the

Site or their mere ownership of the Site.

As it stands, the Judgment will unavoidably lead to an

absurd result. By allowing a state agency to punish a

property Owner who is clearly not at fault for creating any

contamination while simultaneously letting a confessed

polluter of the Site off scot-free, the J udgment will have the

effect of standing the doctrine of selective enforcement on it

head.

The Judgment is also illogically reasoned. Because

the Judgment held that the Petitioner could only be similarly

Situated to a current, non-polluting owner of the property,

there are no other entities or individuals with whom Petitioner

could have compared itself. Following the Judgment’s

rationale, the only context in which Petitioner could have

challenged DEP’s pattern of enforcement and non-

enforcement in this case would have been if Petitioner owned

the Site jointly with one or more parties and was pursued by

DEP to the exclusion of its co-owners.

Despite the First, Seventh and Eighth Circuit’s

pronouncements in Dartmouth, Klinger and Esmail,

respectively, that a victim of selective prosecution need not

establish that it was identical in all respects to those whom the

victim claims were treated more favorably, this is precisely

the burden which the Connecticut Supreme Court imposed on

eth

Petitioner in the Judgment.’ For these reasons, this Petition

for Writ of Certiorari should be granted and the Judgment

reversed.

B. This Court And The Courts Of Appeals

For The Second and Third Circuits Have

Found A Claim Of Equal Protection To Be

Established By A Showing Of Arbitrary

State Action.

Petitioner claims that the Connecticut Supreme Court

erred in affirming the rulings by the Hearing Officer and the

Trial Court which held that the second prong of a selective

prosecution claim could not be shown by means other than an

improper classification such as race, religion or bad-faith

intent to injure the recipient of an agency order. See

Judgment, at p. 673; App. at A13. The decisions of this Court

and the Courts of Appeals for the Second and Third Circuits

lead to the inescapable conclusion that the standard for review

applied by the Hearing Officer to Petitioner’s claim of

selective prosecution and ultimately affirmed by the Judgment

was erroneous.

The factors to be considered by a court in determining

whether a party has been the victim of selective prosecution

were enunciated by this Court in Oyler v. Boles, 368 U.S.

> As the Court of Appeals for the Seventh Circuit noted, “equal

protection does not just mean treating identically situated persons identically.

If a bad person is treated better than a good person, this is just as much an

example of unequal treatment as when a bad person is treated better than an

equally bad person or a good person worse than an equally good person.

Esmail, 53 F.3d at 179.

.)2-

448, 456 (1962).* The Oyler Court expressly acknowledged

that the state’s selection of the defendant, if based upon an

arbitrary classification, could amount to selective prosecution

but concluded, nevertheless, that the defendant had not

established any violation of his right to equal protection. Id.

at 456.

In Oyler, a thrice-convicted defendant claimed that

West Virginia’s habitual criminal statute was discriminatorily

enforced. Id. at 454-55. The Defendant’s Claim of selective

prosecution was based on the prosecutor’s election not to seek

life sentences for 904 other similarly situated, three-time

offenders. Id. at 455. This Court rejected the defendant’s

claim of selective prosecution Stating that he had failed to

prove that the prosecutor had actual knowledge of others

subject to the repeat offender statute at issue, implying that

proof of the deliberate nonprosecution of others similarly

Situated was required. Id. at 456. The Court also stated that

the defendant had failed to show a discriminatory motive:

“Even though the statistics in his case mi ght imply a policy of

selective enforcement, it was not stated that the selection was

deliberately based upon an unjustifiable standard such as race,

religion, or other arbitrary classification.” Id. at 456.

The pronouncement by the Oyler Court of the proper

Standard of review to apply to a claim of selective

enforcement was adopted by the Court of Appeals for the

Second Circuit in LeClair v. Saunders, 627 F.2d 606, 609 (2d

Cir.1980) (citing United States v. Berrios, 501 F.2d 1207,

1211 (2d Cir.1974)). In determining whether the owners of

* Those factors are that the victim was treated differently from others

who were similarly situated to the victim based upon the government’s

application of an unjustifiable standard.

«33.

a dairy farm were the victims of selective prosecution by a

dairy farm inspector, the LeClair court specifically noted that,

although the inspector had the discretion to “call them as he

sees them” with regard to potential violations, the law of

equal protection did not permit the inspector to operate with

“unbridled discretion, approving or suspending farmers by

whim or caprice.” Id. at 608-09.

The LeClair case is cited in the Judgment at p. 671 for

the proposition that a claim of selective prosecution can arise

from the government's application of an impermissible

consideration such as race, religion or an intent to punish or

injure the claimant. However, the Judgment makes no

reference to the LeClair court's specific acknowledgment that

an equal protection violation does occur where the selection

in issue was based upon an “unjustifiable standard such as

race, religion, or other arbitrary classification.” Id. at 611

(quoting Oyler, 368 U.S. at 456).

The Court of Appeals for the Second Circuit's

decision in United States v. Berrios, 501 F.2d 1207, 1211 (2d

Cir. 1974), represents further authority for the proposition that

arbitrary government action can result in a violation of a

party's right to equal protection. As the Berrios court opined:

“([nJothing can corrode respect for a rule of law more than the

knowledge that the government looks beyond the law itself

to arbitrary considerations,’ such as race, religion, or control

* It is unavoidable that the confidence held by property owners in the

functioning of the government will be shaken by the Judgment which absolves

the DEP's simultaneous pursuit of a property owner that did not create any

contamination at the Site and its decision not to issue an abatement order

against a confessed polluter whose son served on an advisory board to the

DEP. See United States v. Mississippi Valley Generating Co., 364 U.S. 520,

562 (1961) (noting that public's trust in its government “is bound to be

-14-

over the defendant’s exercise of his constitutional rights, as

the basis for determining its applicability.” Id. at 1209

(emphasis added).

The Court of Appeals for the Third Circuit has

similarly acknowledged the satisfaction of the second prong

of a claim for selective prosecution with proof of arbitrary

conduct by the governmental body accused of selectivity in its

law enforcement. See United States v. Torquato, 602 F.2d

564 (3d Cir.1979). In fact, the “arbitrary classification”

considered by the Torquato court was similar to the arbitrary

standard applied by the DEP to Petitioner. The criminal

defendant in Torguato was convicted of extorting kickbacks

from businesspersons who leased equipment to the

Pennsylvania Department of Transportation. Id. at 566.

Torquato, the chairman of the countywide Democratic party

at the time of the alleged kickbacks, claimed that he was

selectively prosecuted by the United States Attorney’s Office

because he was a Democrat, alleging that Republican party

officials who had also received kickbacks from equipment

lessors were not prosecuted. Id. at 568.

In evaluating Torquato’s claim of selective

prosecution, the Torguato court concluded that the

defendant’s membership in the Democratic party was

precisely “the sort of arbitrary classification contemplated by

Oyler v. Boles.” Torquato, 602 F.2d at 569, n.9. The

Torquato court further elaborated on the type of arbitrary

classification that might lead to a claim for selective

prosecution when it noted that “to permit criminal prosecution

shattered when high officials and their appointees engage in activities which

arouse suspicions of malfeasance and corruption”).

-15-

to be initiated on the basis of arbitrary or irrational factors

would be to transform the prosecutorial function from one

protecting the public interest through impartial enforcement

of the rule of law to one permitting the exercise of

prosecutorial power based on personal or political bias.” Id.

at 568 (emphasis added).°

Here, Respondent’s action in exonerating a confessed

polluter because of his personal connections to many high-

ranking members of the DEP, including the Chief of the

Bureau of Water Management, employees within the Bureau

of Waste Management and employees in the enforcement

division of the Bureau of Waste Management involves

precisely the type of arbitrary considerations which the law

of equal protection is intended to remedy. Because this

holding is in direct conflict with Oyler, Armstrong, LeClair,

Berrios and Torquato, this petition should be granted.

® The Torquato Court ultimately gave no credence to the Defendant’s

claim of selective prosecution due to his failure to prove that any Republicans

had been identified as having received any kickbacks from the same equipment

lessors whe dealt with Torquato. Id. at 570. Having no evidence before it even

suggesting that the state failed to prosecute other similarly situated persons

(i.e., Republican party officials) the court was compelled to conclude that

Torquato had failed to make a sufficient prima facie showing of selective

prosecution. Id. at 570. Here, the facts plainly show that the DEP elected to

assess liability against the Petitioner to the arbitrary and total exclusion of an

actual polluter of the Site.

NCLUSION

For all of the foregoing reasons, the petitioner asserts

that a writ of certiorari should be granted to review the

Judgment of the Connecticut Supreme Court.

Respectfully Submitted,

CADLEROCK PROPERTIES

JOINT VENTURE, L.P.

“J ill Hartley

Ryan P. Barry

Sabia & Hartley, LLC

190 Trumbull Street

Suite 202

Hartford, CT 06103-2205

Tel. No. (860) 541-2077

*Counsel of Record

=f.

ee pe

No.

In The

Supreme Court Of The United States

CADLEROCK PROPERTIES JOINT VENTURE, L.P.,

Petitioner

Vv.

COMMISSIONER OF THE CONNECTICUT

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

AND THE CONNECTICUT DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Respondents

——

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CONNECTICUT

—_o—

APPENDIX

TABLE OF CONTENTS

Judgment of CT Supreme Court

I Sg ae Al

Memo of Decision of Judge McWeeney

REIS RS aX eed hme ean es Oe i ante A24

Final Decision of Hearing Officer

SP, ME eke OOS AU RS ee es A39

ERNIE SER CEE sr Oa ae gE NTRS Pee A65

_ Order of CT Supreme Court denying Motion for

Reconsideration (Sept. 14, 2000) ................. A77

5" Amendment to the United States Constitution .... A79

14" Amendment to the United States Constitution ... A80

es os vad uc cue cues veces A82

| a Serre

Connecticut General Statute § 22a-225 ............ A85

Respondent, CadleRock Properties Joint Venture, L.P.’s

Answer to the Department of Environmental Protection’s

Onder (September 16, 1997) ..................... A87

DEP Exhibit 7 (Schilberg Letter) ................. A93

Transcript dated November 25, 1997 .............. A94

Transcript dated December 3, 1997 ............... A98

Transcript dated December 11, 1997

Transcript dated December 17, 1997

253 Conn. 66] JULY, 2000 661

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

The only question remaining is whether the Appellate

Court properly concluded that the trial court had prop-

erly determined that the Sequestration order had been

violated. On the basis of the scope of the sequestration

order, and counsels’ representations to the trial court

regarding the exchange that had transpired in the ante-

room, we conclude that the Appellate Court properly

affirmed the decision of the trial court that the seques-

tration order had been violated.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

CADLEROCK PROPERTIES JOINT VENTURE, L.P. v.

COMMISSIONER OF ENVIRONMENTAL

PROTECTION ET AL.

(SC 16170)

McDonald, C. J., and Norcott, Palmer, Sullivan and Vertefeuille, Js.

Syllabus

The plaintiff appealed from a decision by the defendant commissioner of

environmental protection ordering the plaintiff to conduct extensive

investigation regarding soil, groundwater and solid waste pollution on

certain of its real property and to undertake remedial actions to abate

that pollution. The administrative hearing officer assigned to the matter

affirmed the commissioner's order and rejected the plaintiff's claim that

the commissioner had engaged in selective enforcement when he failed

to take action against the prior owner and a prior lessee of the property,

who had admitted polluting the site. The plaintiff then appealed to the

trial court, which affirmed the hearing officer's decision and dismissed

the appeal. On the plaintiff's further appeal, held:

1. The trial court properly affirmed the hearing officer's decision that the

plaintiff had failed to prove selective enforcement; the plaintiff did not

compare itself to other similarly situated current owners of the property

who were not directly responsible for the pollution but, rather, compared

itself only to previous polluters of the site.

(One justice dissenting)

2. The trial court having rejected the plaintiff's challenges to certain of the

hearing officer's evidentiary rulings without articulating a basis for its

662 JULY, 2000 253 Conn. 661

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

action, the record was inadequate for review of the plaintiff's appellate

claims regarding those rulings.

3. Contrary to the claim made by the plaintiff, the hearing officer's decision

was supported by substantial evidence in the record, and nothing sug-

gested that the department acted arbitrarily or abused its discretion in

issuing the abatement order here.

Argued January 20—officially released July 18, 2000

Procedural History

Appeal from a decision by the named defendant

ordering the plaintiff to eliminate soil, surface and

groundwater pollution on certain of its real property

located in the towns of Ashford and Willington and to

take certain other investigatory and remedial measures,

brought to the Superior Court in the judicial district

of New Britain and tried to the court, McWeeny, J.;

judgment for the defendants dismissing the plaintiff's

appeal, from which the plaintiff appealed. Affirmed.

Jill Hartley, for the appellant (plaintiff).

Patricia A. Horgan, assistant attorney general, with

whom, on the brief, was Richard Blumenthal, attorney

general, for the appellees (defendants).

Opinion

VERTEFEUILLE, J. The plaintiff, Cadlerock Proper-

ties Joint Venture, L.P. (Cadlerock), appeals from the

judgment of the trial court dismissing its administrative

appeal from the decision of the defendant department

of environmental protection (department) in which the

named defendant, the commissioner of environmental

protection (commissioner),' issued an abatement order

regarding the plaintiffs real property located in both

Ashford and Willington. The order, which was issued

on August 15, 1997, pursuant to Connecticut's Water

Pollution Control Act; General Statutes § 22a-416 et

' References herein to both the department and the commissioner are to

the “defendants.”

253 Conn. 661 JULY, 2000 663

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

seq.;? and the Solid Waste Management Act; General

Statutes § 22a-207 et seq.;* alleged that the plaintiff was

maintaining a facility that was polluting state waters

and further alleged that the plaintiff was maintaining a

solid waste disposal facility on its property without a

permit. The commissioner ordered Cadlerock to under-

take extensive investigatory actions regarding the soil,

groundwater and solid waste pollution, to undertake

remedial actions to abate such pollution, to monitor

the effectiveness of those remedial actions, and to

remove all solid waste on the property.

The plaintiff appealed from the commissioner's deci-

sion to issue the abatement order. On October 23, 1998,

after conducting public hearings, the administrative

hearing officer rejected the plaintiff's claim of selective

* General Statutes § 222-424 provides in relevant part: “The commissioner

shall have the following powers and duties . . .

“(D To issue... orders prohibiting or abating pollution of the waters

of the state, or requiring the construction, modification, extension or alter-

ation of pollution abatement facilities or monitoring systems, or any parts

thereof, or adopting such other remedial measures as are necessary to

prevent, control or abate pollution... .”

Pursuant to General Statutes § 222-432, “[i}f the commissioner finds that

any person has . . . created a condition... . or is maintaining any facility

take the necessary steps to correct such potential source of pollution. Sau

in the violation. . . .” A3

664 JULY, 2000 253 Conn. 661

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

enforcement and affirmed the commissioner’s order.

The plaintiff appealed from the administrative decision

to the Superior Court pursuant to General Statutes § 4-

183,‘ part of the Uniform Administrative Procedure Act

(UAPA). General Statutes § 4-166 et seq. The trial court

upheld the hearing officer’s decision and dismissed the

appeal, and the plaintiff appealed. We affirm the judg-

ment of the trial court.

The following undisputed facts are relevant to this

appeal. The plaintiff is the present owner of a 335 acre

parcel of land located in Ashford and Willington. The

site contains two ponds and some intermittent water-

courses; one third of the site constitutes wetlands. The

groundwater on this site is classified as “GA” and thus,

should be suitable to serve as a source of public or

private water supply without treatment and should con-

tain no chemical or biological constituents other than

those of natural origin, according to state water quality

standards. See General Statutes § 22a-426.° The depart-

* General Statutes § 4-183 provides in relevant part: “(a) A person who

has exhausted all administrative remedies available within the agency and

who is aggrieved by a final decision may appeal to the Superior Court as

provided in this section. . . .

“(j) The court shall not substitute its judgment for that of the agency as

to the weight of the evidence on questions of fact. The court shall affirm

the decision of the agency unless the court finds that substantial rights

of the person appealing have been prejudiced because the administrative

findings, inferences, conclusions, or decisions are: (1) In violation of consti-

tutional or statutory provisions; (2) in excess of the statutory authority of

the agency; (3) made upon unlawful procedure; (4) affected by other error

of law; (5) clearly erroneous in view of the reliable, probative, and substantial

evidence on the whole record; or (6) arbitrary or capricious or characterized

by abuse of discretion or clearly unwarranted exercise of discretion. If the

court finds such prejudice, it shall sustain the appeal and, if appropriate,

may render a judgment under subsection (k) of this section or remand the

case for further proceedings. For purposes of this section, a remand is a

final judgment... .”

5 General Statutes § 22a-426 (a) provides in relevant part: “The Commis-

sioner of Environmental Protection shall adopt, and may thereafter amend,

standards of water quality applicable to the various waters of the state or

portions thereof as provided in this section. . . .”

253 Conn. 661 JULY, 2000 665

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

ment received complaints about potential pollution on

the site as early as 1977. Both the department, specifi-

cally its bureau of water management, and private envi-

ronmental analysts conducted site investigations

between 1991 and 1997 that revealed significant sources

of soil, groundwater and solid waste pollution.

The site investigations revealed two principal areas

of contamination. The northwest disposal area, con-

sisting of approximately one-quarter acre of land in the

northwest portion of the plaintiff's 335 acre property,

had soil stained a blue-green color, with solid waste

deposited on the surface and buried underground, and

no vegetation. Soil tests revealed high levels of lead,

copper, barium and cadmium, pollutants that pose a

threat to human health and to groundwater quality.

During a department investigation in 1992, Benjamin

Schilberg acknowledged in writing that approximately

thirty years earlier, he had leased this small portion

of the site that later became known as the northwest

disposal area. He admitted that he had burned insulated

copper wire at the location to recover copper for resale,

thereby causing copper oxidation of the soil.

A second contaminated area on the plaintiff's prop- —

erty is located in the south central portion of the site

along Route 44. A restaurant and scrap metal business

were operated on this site until about 1980, when the

buildings were substantially damaged by fire. In 1990,

Ashford Development Corporation (Ashford), then the

owner of the property, demolished the burned out struc-

tures and disposed of the burned debris on this site

without a permit. Solid waste has been observed on

the surface and buried underground, and various con-

taminants (i.e., total petroleum hydrocarbons and vola-

tile organic compounds) have been found in the soil.

The hearing officer, after hearing uncorroborated

expert testimony to the same effect, concluded that the

pollution at the south central disposal area posed a

j REO rer Oke SS

ADP Sts aetRh um ue PI Ce Nua ‘ ;

a ER COR, Brg ee OM ae ie yey C

666 JULY, 2000 253 Conn. 661

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

threat to human health and was reasonably likely to

pollute the groundwater.

The department never pursued any enforcement

action nor did it discuss voluntary remediation with

Schilberg.* In 1993, the department tried unsuccessfully

to persuade Ashford to address the pollution of the

site voluntarily. The department did not pursue any

enforcement action against Ashford because of a lack

of resources within the department. In 1996, Cadle Prop-

erties of Connecticut, Inc. (Cadle Properties), obtained

the site. After unsuccessfully trying to convince Cadle

Properties to remediate voluntarily, the department

issued an abatement order on February 26, 1997.’ On

August 15, 1997, the department withdrew that order

and issued an abatement order to the plaintiff, an affili-

ate of Cadle Properties, upon learning that the property

had been transferred to the plaintiff.

*In oral argument before this court, the defendants indicated that the

plaintiff, as the current property owner that is subject to the abatement

order, can seek contribution from others like Schilberg, who caused the

pollution. This is supported by General Statutes § 22a-452 (a), which provides

that “[a)ny person, firm, corporation or municipality which contains or

removes or otherwise mitigates the effects of oil or petroleum or chemical

liquids or solid, liquid or gaseous products or hazardous wastes resulting

from any discharge, spillage, uncontrolled loss, seepage or filtration of such

substance or material or waste shall be entitled to reimbursement from any

person, firm or corporation for the reasonable costs expended for such

containment, removal, or mitigation, if such oil or petroleum or chemical

liquids or solid, liquid or gaseous products or hazardous wastes pollution

or contamination or other emergency resulted from the negligence or other

actions of such person, firm or corporation. When such pollution or contami-

nation or emergency results from the joint negligence or other actions of

two or more persons, firms or corporations, each shall be liable to the others

for a pro rata share of the costs of containing, and removing or otherwise

mitigating the effects of the same and for all damage caused thereby.”

* Cadle Properties of Connecticut, Inc., is also referred to as Cadle Com-

pany of Connecticut, Inc., in some of the documentation in these pro-

ceedings.

* Cadlerock was certified in Ohio as a limited partnership in November,

1996. At that time, Daniel C. Cadle was listed as the general partner. Cadie

was also the named president of Cadle Properties, which was incorporated

in Connecticut on November 1, 1994.

253 Conn. 661 JULY, 2000 667

Cadierock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

The plaintiff filed an administrative appeal from the

abatement order, claiming that the commissioner had

engaged in selective enforcement in that Schilberg ©

already had admitted in writing that he was responsible

for polluting a portion of the site, but was not subject

to any enforcement action. An administrative hearing

officer conducted public hearings on November 24,

November 25, December 3, December 11, and Decem-

ber 17, 1997. During the administrative hearings, Elsie

Patton, the assistant director of the permitting, enforce-

ment and remediation division in the department's

waste management bureau, testified that the depart-

ment did not pursue Schilberg because he was responsi-

ble only for a portion of the pollution and pursuing

enforcement action against both Schilberg and the

plaintiff, the current property owner, would have

delayed remediation of the entire site The hearing

officer rejected the selective enforcement defense and

affirmed the commissioner’s order. On the plaintiff's

appeal, the trial court affirmed that decision and dis-

missed the plaintiff's appeal.

The plaintiff appealed from the judgment of the trial

court to the Appellate Court. Thereafter, we transferred

* Patton testified that “[Schilberg’s] activities only created part of the

problem [a}nd to order him to clean up part of the problem would not result

in what [the department's] goal is . . . to get the whole site cleaned up

--. -" Patton explained that “when [the department] issue|s] orders to

multiple parties, that complicates the enforcement process.” The department

decided that “the most efficient way for us to get a cleanedup site is to go

with a single order [to the property owner].”

The dissent contends that “allocation of liability [for cleanup costs} is

irrelevant because the parties are jointly and severally liable under § 22a-

225." We disagree. The plaintiff's joint and several liability with Schilberg

applies only to the small contamination area in the northwest portion of

the plaintiff's property; Schilberg has no liability for the larger area of

contamination in the south central portion of the property. As Patton testi-

fied, the department's goal was the quick and efficient cleanup of the entire

site. As we will discuss in this opinion; see part I of this opinion; the

department acted within its broad discretion in pursuing the plaintiff alone.

668 JULY, 2000 253 Conn. 661

Cadlerock Properties Joint Venture, L.P. v. Conumissioner of Env. Protection

the appeal to this court pursuant to General Statutes

§ 51-199 (c) and Practice Book § 65-1. The plaintiff

claims: (1)that the trial court improperly upheld the

administrative hearing officer’s decision that the plain-

tiff failed to establish the affirmative defense of selec-

tive enforcement and improperly concluded that even if

there were selective enforcement, the abatement order

would not have been rendered void; (2) that the trial

court improperly upheld the hearing officer’s eviden-

tiary rulings (a) excluding from evidence a newspaper

article quoting a department staff person as saying it

was the department’s policy to pursue all polluters,

and (b) preventing the plaintiff from discovering three

internal department memoranda concerning prior

enforcement action with respect to the site on the

ground that the documents were protected by the attor-

ney-client. privilege and (c) not reaching the hearing

officer’s evidentiary ruling allowing into evidence testi-

mony allegedly regarding the parties’ settlement negoti-

ations and the plaintiffs actions in response to the

administrative order; and (3) that the trial court improp-

erly affirmed the hearing officer’s decision despite the

fact that it was clearly erroneous in view of the evidence

in the record. We affirm the judgment of the trial court.

We begin by articulating the applicable standard of

review in an appeal from the decision of an administra-

tive agency. “Judicial review of [an administrative

agency's] action is governed by the [UAPA] . . . and

the scope of that review is very restricted. ... New

Haven v. Freedom of Information Commission, 205

Conn. 767, 773, 535 A.2d 1297 (1988). With regard to

questions of fact, it is neither the function of the trial

court nor of this court to retry the case or to substitute

its judgment for that of the administrative agency. Grif-

fin Hospital v. Commission on Hospitals & Health

Care, 200 Conn. 489, 496, 512 A2d 199, appeal dis-

missed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819

253 Conn. 661 JULY, 2000 669

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

(1986). Judicial review of the conclusions of law

reached administratively is also limited. The court's

ultimate duty is only to decide whether, in light of the

evidence, the [agency] has acted unreasonably, arbi-

trarily, illegally, or in abuse of its discretion. .. . Id.

Although the interpretation of statutes is ultimately a

question of law . . . it is the well established practice

of this court to accord great deference to the construc-

tion given [a] statute by the agency charged with its

enforcement. . . . Id. Conclusions of law reached by

the administrative agency must stand if the court deter-

mines that.they resulted from a correct application of

the law to the facts found and could reasonably and

logically follow from such facts. New Haven v. Freedom

of Information Commission, supra, 774.” (Citation

omitted; internal quotation marks omitted.) State Board

of Labor Relations v. Freedom of Information Commis-

sion, 244 Conn. 487, 493-94, 709 A.2d 1129 (1998).

We also have held that an exception is made “when

a state agency’s determination of a question of law has

not previously been subject to judicial scrutiny .. .

the agency is not entitled to special deference.” (Inter-

nal quotation marks omitted.) Burke v. Fleet National

Bank, 252 Conn. 1, 10, 742 A.2d 293 (2000). The plaintiff

claims that the department's decision is not entitled to

deference because this question of law previously has

not been subject to judicial scrutiny. We disagree. This

court previously has upheld the commissioner’s author-

ity to issue a permit for a solid waste facility under

General Statutes § 22a-208a (b) and to issue orders to

abate pollution under General Statutes § 22a-432, which

was relied upon to issue the abatement order to the

plaintiff here. See, e.g., Starr v. Commissioner of Envi-

ronmental Protection, 226 Conn. 358, 382, 627 A.2d

1296 (1993) (concluding that “pursuant te § 22a-432,

the defendant was empowered to order a cleanup of

polluted land without regard to fault or economic hard-

670 JULY, 2000 253 Conn. 661

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

ship”); Keeney v. L & S Construction, 226 Conn. 205,

206-207, 626 A.2d 1299 (1993) (upholding commission-

er’s injunctive order under § 22a-208a); Connecticut

Building Wrecking Co. v. Carothers, 218 Conn. 580,

590-91, 590 A.2d 447 (1991) (affirming commissioner’s

discretion under § 22a-208a to order plaintiff to cease

operating unpermitted solid waste disposal facility and

to remove all solid waste).

Agencies, in general, are given broad discretion to

exercise their regulatory authority. See Commission

on Hospitals & Health Care v. Stamford Hospital, 208

Conn. 663, 673, 546 A.2d 257 (1988). The United States

Supreme Court has compared an agency’s exercise of

its enforcement power to that of a prosecutor. See Heck-

ler v. Chaney, 470 U.S. 821, 832, 105 S. Ct. 1649, 84 L.

Ed. 2d 714 (1985); Butz v. Economou, 438 U.S. 478, 515,

98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978). In Connecticut,

the legislature has granted the department broad discre-

tion to enforce the environmental laws. See, e.g., Gen-

eral Statutes §§ 22a-6, 22a-224, 22a-225 and 22a-432. This

court has held specifically that the department has the

discretion to choose the appropriate enforcement

action to remedy pollution. See Starr v. Commissioner

of Environmental Protection, supra, 226 Conn. 382.

Furthermore, the department does not abuse its discre-

tion by issuing an abatement order against a current

property owner regardless of the owner's culpability

for the pollution of the property. See id., 393. With these

principles in mind, we turn to the plaintiff's claims.

The plaintiff s first claim is that the trial court improp-

erly affirmed the hearing officer’s decision that the -

plaintiff had failed to prove that the department had

engaged in selective enforcement. We disagree.

“The Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution is essen-

Al0

253 Conn. 661 JULY, 2000 671

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

tially a direction that all persons similarly situated

should be treated alike. City of Cleburne v. Cleburne

Living Ctr., Inc., 473 U.S. 432, 439, 105 S. Ct. 3249,

3254, 87 L. Ed. 2d 313 (1985) (citing Plyler v. Doe, 457

U.S. 202, 216, 102 S. Ct. 2382, 2394, 72 L. Ed. 2d 786

[1982]). .. . Zahra v. Southold, 48 F.3d 674, 683 (2d

Cir. 1995). A violation of equal protection by selective

[treatment] arises if: (1) the person, compared with

others similarly situated, was selectively treated; and

(2) . . . such selective treatment was based on imper-

missible considerations such as race, religion, intent to

inhibit or punish the exercise of constitutional rights,

or malicious or bad faith intent to injure a person.

LaTrieste Restaurant & Cabaret, Inc. v. Village of Port

Chester, 40 F.3d 587, 590 (2d Cir. 1994) (quoting LeClair

v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980), cert.

denied, 450 U.S. 959, 101 S. Ct. 1418, 67 L. Ed. 2d 383

[1981]).” (internal quotation marks omitted.) Thomas

v. West Haven, 249 Conn. 385, 392-93, 734 A.2d 535

(1999), cert. denied, US. , 120 S. Ct. 1239, 146

L. Ed. 2d 99 (2000). The claimant has the burden of

proving a selective enforcement claim. See id., 391-93.

The plaintiff argues that the trial court improperly

upheld the hearing officer's determination that the

plaintiff did not satisfy the first prong of a selective

enforcement claira by comparing itself to other similarly

situated parties. In particular, the plaintiff asserts that

it compared the department’s treatment of it to that of

Ashford, a prior owner, and Schilberg, a previous lessee

_ who admitted polluting the site, neither of which was

subject to any enforcement action. The trial court found

that “[t}he plaintiff compares itself not to other similarly

situated owners of property, but, rather, to other parties

who participated in the pollution of the site. Such per-

SONS aS nonowners would not be similarly situated.”

We agree with the trial court that the plaintiff did not

compare itself to other similarly situated parties.

All

672 JULY, 2000 253 Conn. 661

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

Recently, we held that “the requirement imposed

upon [p]laintiffs claiming an equal protection vioiation

[is that they] identify and relate specific instances where

persons situated similarly in all relevant aspects were

treated differently . . . . Dartmouth Review v. Dart-

mouth College, 889 F.2d 13, 19 (1st Cir. 1989). ...

Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995).”

(Emphasis in original; internal quotation marks omit-

ted.) Thomas v. West Haven, supra, 249 Conn. 402.

We agree with the trial court that the plaintiff only

compared itself with others who were involved in creat-

ing the pollution at the property. During the administra-

tive hearing, the plaintiffs counsel cross-examined

Thomas O’Connor, a department environmental analyst

responsible for investigating the site and recommending

administrative action. O’Connor admitted that the

department’s treatment of the plaintiff differed from

that of both Schilberg and Ashford, neither of which

was issued an abatement order. Schilberg admitted in

writing to having burned copper wire and temporarily

deposited the waste in the northwest disposal area. The

hearing officer made findings that Ashford demolished

previously burned structures and disposed of the debris

without a permit in the south central disposal area.'°

Both areas were determined to be significant sources

of soil, groundwater and solid waste pollution. We find

that the plaintiff compared itself only to previous pollut-

ers of the site and therefore failed to prove the first

prong of the selective enforcement claim." The plaintiff

In oral argument before this court, the defendants acknowledged that

aside from Schilberg, who had admitted in writing his responsibility for

polluting the approximately one-quarter acre of the site in the northwest

disposal area, they have not determined who polluted the remainder of the

335 acre site. Thus, Ashford is not a named polluter despite the hearing

officer’s findings and the trial court's affirmance of those findings.

" Even if we were to assume, arguendo, that the plaintiff satisfied the

first prong of the selective enforcement claim, the plaintiff failed to prove

the second prong—that the department’s treatment of the plaintiff was

motivated by a malicious or bad faith intent to injure. The plaintiff argued

that the trial court should have considered whether the department failed

Al2

253 Conn. 661 JULY, 2000 673

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

did not compare itself to similarly situated current own-

ers of the property who were not directly responsible

for the pollution. Thus, the trial court properly affirmed

the hearing officer’s decision that the department did

not engage in selective enforcement. '”

to pursue Schilberg because it was motivated by an arbitrary standard or

classification, in particular, a political bias. Specifically, the plaintiff asserted

that Schilberg’s son, Bernard Schilberg, as a member of the underground

storage tank petroleum cleanup account review board since 1994, had con-

tact with department staff members, including the chief of the department's

waste management bureau.

Regarding the second prong of the selective enforcement claim, this court

previously held that “[when a plaintiff] does not allege selective treatment

based upon his race, religion, or any intentional effort by [the] defendants

to punish him for exercising his constitutional rights, (the plaintiff) must

Al3

674 JULY, 2000 253 Conn. 661

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

The plaintiff next argues that the trial court improp-

erly upheld certain of the hearing officer’s evidentiary

rulings, to wit: (1) to exclude from evidence a newspa-

per article quoting a department staff person as stating

that it was the department’s policy to pursue all pollut-

ers; and (2) to prevent the plaintiff from discovering

three internal department memoranda concerning prior

enforcement action with respect to the site on the

ground that the documents were protected by the attor-

ney-client privilege. The plaintiff also claims that the

trial court improperly did not reach the hearing officer's

evidentiary ruling that allegedly allowed into evidence

testimony regarding the parties’ settlement negotiations

and the plaintiff's actions in response to the administra-

tive order. The trial court found that “[t}he plaintiff's

evidentiary claims relate to the evidence which would

purportedly contradict the assertion that the parties

responsible for the active pollution were not the sub-

jects of the order to avoid a more complex hearing.

The relevancy of such evidence is negligible in view of

the limited impact.”

We agree with the state that the record for reviewing

these claims is incomplete given that the trial court

dismissed the evidentiary claims without articulating a

basis for each claim. “It is the appellant’s burden to

provide an adequate record for review. Practice Book

§ 60-5; Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d

1302 (1983). It is, therefore, the responsibility of the

appellant to move for an articulation or rectification of

the record where the trial court has failed to state the

basis of a decision; Gerber & Hurley, Inc. v. CCC Corp.,

36 Conn. App. 539, 543, 651 A.2d 1302 (1995); to clarify

rejected the plaintiff's selective enforcement claim and the supporting evi-

dentiary claims; see part II of this opinion; we decline to reach the issue of

whether the order would have been void.

Al4

253 Conn. 661 JULY, 2000 675

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

the legal basis of a ruling; Leverty & Hurley Co. v.

Commissioner of Transportation, 192 Conn. 377, 379,

471 A.2d 958 (1984); or to ask the trial judge to rule on

an overlooked matter. Wolk v. Wolk, 191 Conn. 328, 335

n.1, 464 A.2d 780 (1983). In the absence of any such

attempts, we decline to review this issue.” Rivera v.

Double A Transportation, Inc., 248 Conn. 21, 33-34,

727 A.2d 204 (1999). We find that the trial court record is

inadequate to review the plaintiff's evidentiary claims.”

The plaintiff's final claim is that the trial court improp-

erly affirmed the hearing officer’s decision because it

was clearly erroneous in view of the evidence in the

record. We disagree.

" Even if we were to assume, arguendo, that the plaintiff has preserved

this issue, it could not prevail. We agree with the plaintiff that these memo-

randa were not protected by the attorney-client privilege. We have held that

“‘communications to an attorney for a public agency are protected from

disclosure by privilege if the following conditions are met: (1) the attorney

must be acting in a professional capacity for the agency, (2) the communica-

tions must be made to the attorney by current employees or officials of the

agency, (3) the communications must relate to the legal advice sought by

the agency from the attorney, and (4) the communications must be made

in confidence.’ [Shew v. Freedom of Information Commission, 44 Conn.

App. 611, 620-21, 691 A.2d 29 (1997)].” Shew v. Freedom of Information

Commission, 245 Conn. 149, 159, 714 A.2d 664 (1998). Our in camera review

of the memoranda in question here reveals that they were not communica-

tions to an attorney for a public agency for the purpose of seeking legal

advice. The attorney-client privilege protects only those disclosures that are

necessary to obtain informed legal advice. See id., 157. The privilege does

not protect against the disclosure of underlying factual information. See

Upjohn Co. v. United States, 449 U.S. 383, 395-96, 101 S. Ct. 677, 66 L. Ed.

2d 584 (1981). The memoranda were written by department officials to

department counsel and labeled at the top “CONFIDENTIAL—ATTORNEY

CLIENT PRIVILEGE,” but were not created for the purpose of obtaining legal

advice. The memoranda conveyed factual information regarding captioned

topics such as “Site Location,” “Nature of Problem,” “Date of Discovery,”

“Action Proposed,” “Justification for Proposed Action,” “Relief Sought,”

and “Anticipated Controversy.” Because no legal advice was sought, these

memoranda should not have been protected by the attorney-client privilege.

Furthermore, there is nothing in those documents that would have been

helpful to the plaintiff's claim.

Al5

676 JULY, 2000 253 Conn. 661

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection |

“Judicial review of an administrative agency decision

requires a court to determine whether there is substan-

tial evidence in the administrative record to support

the agency’s findings of basic fact and whether the

conclusions drawn from those facts are reasonable.

... Dufraine v. Commission on Human Rights &

Opportunities, 236 Conn. 250, 259, 673 A.2d 101 (1996);

Schallenkamp v. DelPomte, 229 Conn. 31, 40, 639 A.2d

1018 (1994). Neither this court nor the trial court may

retry the case or substitute its own judgment for that

of the administrative agency on the weight of the evi-

dence or questions of fact. Griffin Hospital v. Commis-

sion on Hospitals & Health Care, (supra, 200 Conn.

496]; Connecticut Natural Gas Corp. v. Public Utilities

Control Authority, 183 Conn. 128, 134, 439 A.2d 282

(1981). Our ultimate duty is to determine, in view of

all of the evidence, whether the agency, in issuing its

order, acted unreasonably, arbitrarily, illegally or in

abuse of its discretion. Perkins v. Freedom of Informa-

tion Commission, [228 Conn. 158, 164, 635 A.2d 783

(1993)]; New Haven v. Freedom of Information Com-

mission, [supra, 205 Conn. 773].

“The substantial evidence rule governs judicial

review of administrative fact-finding under the UAPA.

General Statutes § 4-183 (j) (5) and (6). An administra-

tive finding is supported by substantial evidence if the

record affords a substantial basis of fact from which

the fact in issue can be reasonably inferred. . . . Con-

necticut Building Wrecking Co. v. Carothers, (supra,

218 Conn. 593]; Connecticut Light & Power Co. v. Dept.

of Public Utility Control, 219 Conn. 51, 57, 591 A.2d

1231 (1991). The substantial evidence rule imposes an

important limitation on the power of the courts to over-

turn a decision of an administrative agency . . . and

to provide a more restrictive standard of review than

standards embodying review of weight of the evidence

or clearly erroneous action. ... The United States

Al6

253 Conn. 661 JULY, 2000 677

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

Supreme Court, in defining substantial evidence in the

directed verdict formulation, has said that it is some-

thing less than the weight of the evidence, and the

possibility of drawing two inconsistent conclusions

from the evidence does not prevent an administrative

agency's finding from being supported by substantial

evidence. ... Dufraine v. Commission on Human

Rights & Opportunities, supra, 236 Conn. 260; see Con-

necticut Building Wrecking Co. v. Carothers, supra,

593.” (Internal quotation marks omitted.) Dolgner v.

Alander, 237 Conn. 272, 280-82, 676 A.2d 865 (1996).

The trial court properly affirmed the hearing officer’s

findings that there was substantial evidence in the

record that significant sources of soil, groundwater and

solid waste pollution existed on the plaintiff's property.

The plaintiff did not offer any evidence to contradict

these findings. Furthermore, the trial court properly

affirmed the hearing officer’s decision that the plaintiff

failed to prove that the department had engaged in

selective enforcement. There was no evidence in the

record to suggest that the department acted arbitrarily

or abused its discretion in issuing an abatement order

to the plaintiff in order to remedy the pollution on

the property.

The judgment is affirmed.

In this opinion NORCOTT and PALMER, Js., con-

curred.

MCDONALD, C. J., with whom SULLIVAN, J., joins,

dissenting. I disagree with the majority’s conclusion

that the trial court properly affirmed the hearing offi-

cer’s decision that the plaintiff alone must clean up a

property that the defendants knew was polluted by a

third party with connections to the defendants. I would

reverse the judgment of the trial court.

Al7

678 JULY, 2000 253 Conn. 661

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

The plaintiff argues that the defendants engaged in

selective enforcement because another potentially

responsible party, Benjamin Schilberg, had admitted to

the defendants in writing that he was responsible for

polluting a portion of the site but had not been the

subject of any enforcement action under General Stat-

utes § 22a-225.' In the majority’s view, the plaintiff, to

prove selective enforcement, should be compared with

“similarly situated current owners of the property who

were not directly responsible for the pollution,” not

with others who were, in fact, responsible for polluting

the property. “[E]qual protection [however] does not

just mean treating identically situated persons identi-

cally. ... [Rather], the requirement imposed upon

[p]laintiffs claiming an equal protection violation [is

that they] identify and relate specific instances where

persons situated similarly in all relevant aspects were

treated differently . . . .” (Citation omitted; emphasis

altered; internal quotation marks omitted.) Thomas v.

West Haven, 249 Conn. 385, 402, 734 A.2d 535 (1999),

cert. denied, US. , 120 S. Ct. 1239, 146 L. Ed.

2d 99 (2000). The “relevant aspects” include “whether

the plaintiffs are similarly situated to another group for

purposes of the challenged government action.”

Klinger v. Dept. of Corrections, 31 F.3d 727, 731 (8th

Cir. 1994). Section 22a-225 (a) provides that abatement

orders may be issued to “any person who violates any

provision of this chapter,” not only to current property

owners. Accordingly, I believe that, for purposes of

liability under § 22a-225, the appropriate comparison is

to all others that are potentially responsible parties

under § 22a-225, and not to only other current owners

of the property. I would conclude that Schilberg was

' General Statutes § 22a-225 (a) provides for the issuance of abatement

orders to “any person who violates any provision of this chapter or any

regulation adopted or permit issued pursuant to this chapter, or to the owner

of any land on which the violation occurs regardless of whether the owner

of the land participated in the violation, . . .”

Alg

253 Conn. 661 JULY, 2000 679

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

similarly situated to the plaintiff under § 22a-225 for

purposes of the challenged government action, the

order requiring the cleanup of the property.

The majority also concludes that the plaintiff failed

to prove that the defendants’ action against the plaintiff

was motivated by a malicious or bad faith intent to

injure. The plaintiff's argument, however, is not that

the defendants were motivated by malice or bad faith

to injure, but rather that the government action was

based upon an arbitrary classification. In Oyler v. Boles,

368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962),

the United State Supreme Court expressly stated that

a party may establish a federal constitutional violation

under a claim of selective enforcement in violation of

equal protection if “the selection was deliberately based

upon an unjustifiable standard such as race, religion,

or other arbitrary classification.” (Emphasis added.)

See also United States v. Armstrong, 517 U.S. 456, 464,

116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996); LeClair v.

Saunders, 627 F.2d 606, 611 (2d Cir. 1980). The plain-

tiff's claim is that the defendants’ decision not to pursue

Schilberg was motivated by political bias. In 1994,

Schilberg’s son was appointed by the commissioner

of the department of environmental protection as a

member of the underground storage tank petroleum

cleanup account review board. As a member of the

board, he was well acquainted with many of the high

ranking members of that department.

Admittedly, “the conscious exercise of some selectiv-

ity in enforcement is not in itself a federal constitutional

violation”; Oyler v. Boles, supra, 368 U.S. 456; nor is it

contrary to the department's authority under § 22a-225.

However, it “should not extend to the point where [the

government] may operate with unbridled discretion

- . - by whim or caprice.” LeClair v. Saunders, supra,

627 F.2d 608-609. “[T]he administration of laws ‘with

an evil eye and an unequal hand, so as practically to

Al3

680 JULY, 2000 253 Conn. 661

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

make unjust and illegal discrimination between persons

in similar circumstances’ constitutes a denial of equal

protection.” United States v. Berrios, 501 F.2d 1207,

1209 (2d Cir. 1974).

The importance of preventing impropriety and the

appearance of impropriety in any government action

concerning one’s property rights cannot be overstated.

“Democracy works ‘only if the people have faith in

those who govern, and that faith is bound to be shat-

tered when high officials and their appointees engage

in activities which arouse suspicions of malfeasance

and corruption.’ United States v. Mississippi Valley

Generating Co., 364 U.S. 520, 562, 81 S. Ct. 294, 5 L. Ed.

2d 268 (1961).” Nixon v. Shrink Missouri Government

PAC, 528 U.S. , 120 S. Ct. 897, 906, 145 L. Ed. 2d

886 (2000). “Nothing can corrode respect for a rule of

law more than the knowledge that the government looks

beyond the law itself to arbitrary considerations... .”

United States v. Berrios, supra, 501 F.2d 1209.

In Low v. Madison, 135 Conn. 1, 10, 60 A.2d 774

(1948), this court held that the action of the Madison

zoning commission in effect granting a zone change

application was invalid because of the relationship that

existed between the zoning applicant and a member

of the zoning commission.’ The court reasoned that

“{zjoning restrictions limit the individual's free use of

his real estate in the interest of the general public good.

The administration of power of that nature, whether it

be denominated legislative or quasi-judicial, demands

the highest public confidence. Anything which tends to

weaken such confidence and to undermine the sense

*A member of the zoning commission, who was the husband of the

applicant, “assumed the dual role of public officer, as a member of the

commission, and agent or advocate of his wife's private interest in the

application before the commission. After conducting his role as advocate,

he assumed his role as public official and, by his vote, made it possible to

secure the relief he had advocated.” Low v. Madison, supra, 135 Conn. 9.

A20

253 Conn. 661 JULY, 2000 681

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

of security for individual rights which the citizen is

entitled to feel is against public policy.” Id., 9. As

explained in cases interpreting Low, the appearance

of impropriety sufficiently weakens the respect and

confidence in government that is so vital to our system

of democracy. See Gaynor-Stafford Industries, Inc. v.

Water Pollution Control Authority, 192 Conn. 638, 648,

474 A.2d 752, cert. denied, 469 U.S. 932, 105 S. Ct. 328,

83 L. Ed. 2d 265 (1984) (test not whether personal inter-

est does conflict, but whether reasonably might con-

flict); Thorne v. Zoning Commission, 178 Conn. 198,

205, 423 A.2d 861 (1979) (same); Josephson v. Planning

Board, 151 Conn. 489, 493-95, 199 A2d 690 (1964)

(same). We also have held that “the principles of law

stated [in Low] are not restricted solely to [planning or

zoning] boards. These criteria and principles of law

apply to the exercise of powers of all municipal agencies

and boards which affect property rights in the commu-

nity.” Stocker v. Waterbury, 154 Conn. 446, 453-54, 226

A.2d 514 (1967). I see no reason why state government

action in this case should not be held to the same

standard.

In this case, the defendants obtained, in 1992, a signed

admission from Schilberg, a prior lessee, in which he

acknowledged that he had burned insulated copper wire

on a one-quarter acre area of the site. The portion of the

property that Schilberg acknowledged having polluted

was one of two contaminated areas on the property.

Despite having an admission from Schilberg that he

actually had polluted the land, which one department

analyst testified was very “rare,” the defendants never

pursued any remediation or initiated an enforcement

action against him.’ The defendants cited a lack of

7 In 1993, the defendants also did not pursue any action with respect

to the owner of the land at that time, Ashford Development Corporation

(Ashford). Ashford was responsible for the contamination on a second area

of the site on which it demolished and disposed of burned debris that

remained from a fire on the property.

A21

682 JULY, 2000 253 Conn. 661

Cadlerock Properties Joint Venture, L.P. v. Commissioner of Env. Protection

resources as the reason for their inaction in the past.

It was not until 1997, after the plaintiff had purchased

the property, that the defendants pursued an enforce-

ment action under § 22a-225 against only the plaintiff.

The defendants claim that pursuing more than one party

would have “complicate[d] the administrative process,”

and would have frustrated their primary goal, which

was to have the entire site cleaned up. They argue that,

because Schilberg was responsible for only one of the

two contaminated areas, they decided to pursue the

plaintiff alone in order to avoid delays in the enforce-

ment process that would have resulted from the parties

disputing the allocation of cleanup costs. The defen-

dants concede, however, that allocation of liability is

irrelevant because the parties are jointly and severally

liable under § 22a-225. Consequently, the defendants

patently failed to address why they never took any

action against Schilberg after obtaining his admission,

but instead pursued the plaintiff alone for the cost of

cleanup.

Moreover, the commissioner’s appointment of Schil-

berg’s son to an advisory board raises the specter of

favorable treatment of a known polluter with a relation-

ship to the department at the expense of a nonpolluter

without such a relationship. This is certainly not a situa-

tion that inspires public confidence in the even-handed

administration of government. As we stated in Thomas,

“equal protection does not just mean treating identically

situated persons identically. If a bad person is treated

better than a good person, this is just as much an exam-

ple of unequal treatment as when a bad person is treated

better than an equally bad person or a good person

worse than an equally good person.” (Internal quotation

marks omitted.) Thomas v. West Haven, supra, 249

Conn. 401, quoting Esmail v. Macrane, 53 F.3d 176, 179

(7th Cir. 1995). It is, to me, inescapable that a property

owner's confidence in the administration of government

A22

253 Conn. 683 JULY, 2000 683

Oxford Tire Supply, Inc. v. Commissioner of Revenue Services

power over that owner’s property would be undermined

in these circumstances.

Accordingly, I respectfully dissent.

OXFORD TIRE SUPPLY, INC. v. COMMISSIONER

OF REVENUE SERVICES

(SC 16087)

Borden, Norcott, Palmer, Sullivan and Callahan, Js.*

Syllabus

The plaintiff appealed to the trial court from the decision of the commis-

sioner of revenue services denying the plaintiff's petitions for reassess-

ment after the commissioner had assessed sales and use taxes on

revenue derived during two audit periods from the plaintiff's removal

of scrap automobile tires from the premises of various commercial

enterprises, including tire dealers and gas stations. The plaintiff claimed

that its removal of scrap tires was exempt from sales and use taxes.

The trial court rendered judgments sustaining the plaintiff's appeals,

from which the commissioner appealed. Held:

1. The trial court improperly determined that the scrap tire removal services

rendered by the plaintiff were exempt from sales tax under the statutory

provision (§ 12-407 [2] [i] [I]) exempting from the sales tax services

rendered in the voluntary removal of hazardous waste; the pertinent

legislative history of the public act (P.A. 99-225, § 30), which was enacted

during the pendency of the commissioner's appeal in this case and which

amended the statutory definition of hazardous waste (§ 22a-115 [1]) by

expressly excluding scrap tires from its purview, and the fact that P.A.

99-225, § 30, was enacted directly in response to the holding of the trial

court in this case, suggest that the legislature intended to clarify, rather

than to change, the statutory definition of hazardous waste in § 22a-115

(1) and, therefore, have its provisions apply retroactively.

2. The trial court improperly determined that the plaintiff's scrap tire removal

services were exempt from sales tax under the statutory provision (§ 12-

407 (2) {i} {I]) exempting from the sales tax services rendered in the

voluntary removal of “other contaminants of air, water or soil”; although

scrap tires contain certain substances that may leach into the environ-

* Although Justice Callahan reached the mandatory age of retirement

before July 18, 2000, the date that this opinion is officially released, his

continued participation on this panel is authorized by Public Acts 2000, No.

00-191, $ 11.

A23

NO. CV 98 0492629S SUPERIOR COURT

CADLEROCK PROPERTIES __

JOINT VENTURE, L.P.

COMMISSIONER OF ENVIRONMENTAL

PROTECTION AND THE DEPARTMENT OF

ENVIRONMENTAL PROTECTION

JUDICIAL DISTRICT OF NEW BRITAIN

MAY 5, 1999

MEMORANDUM OF DECISION

The plaintiff, an Ohio limited partnership, appeals

from a final decision dated October 23, 1998 from the

Department of Environmental Protection ("DEP") hearing

officer Donald Levenson which affirms order number

SRD-088 issued by the Commissioner of Environmental

Protection requiring the plaintiff to undertake extensive

investigatory and remedial actions with regard to portions of

a 335 acre parcel of land known as 392 and 460 Squaw

Hollow Road (also known as Route 44) in Ashford and

Willington, Connecticut. The appeal is brought pursuant to

the Uniform Administrative Procedure Act ("UAPA"),

General Statutes §§ 4-166 et seq. and 4-183.

The Commissioner's order alleged that the plaintiff

had created or was maintaining a facility or condition which

reasonably can be expected to create a source of pollution to

the waters of the state; and further alleged that the plaintiff

was maintaining a solid waste disposal facility without a

permit on its property in the towns of Ashford and Willington.

The plaintiff filed a timely appeal from the order and public

A24

hearings were held by a DEP hearing officer on November 24

and 25, December 3, 11 and 17, 1997.

The Commissioner's order of August 15, 1997 was

issued pursuant to his authority under Connecticut's Water

Pollution Control Act, General Statutes § 22a-416 et seq. and

the Solid Waste Management Act, General Statutes § 22a-207

et seq.

Substantial evidence in the record supports the hearing

officer's findings which are essentially as follows. The site

consists of 294 acres in the town of Ashford and 41 acres in

the town of Willington. The site contains two ponds, Moritz

Pond in the eastern portion of the site and a man-made pond

in the south central portion of the site. The site also includes

intermittent water courses, with approximately one third of

the site constituting inland wetlands. Pursuant to Connecticut

water quality standards adopted in accordance with General

Statutes § 22a-426 as revised April 12, 1996, the groundwater

at the site is classified as "GA". Groundwater classified as

"GA" should be suitable to serve as a source of public or

private water supply without treatment and should contain no

chemical or biological constituents other than those of natural

origin. During the period from 1967 through 1972, Benjamin

Schilberg, doing business as Schilberg Iron & Metals, leased

approximately 10,000 square feet of this northwest portion of

the site. On the leased portion of the site, Schilberg burned

insulated copper wire to recover the copper for resale. The

ash resulting from the burning process was stored on site until

a truck load of ash had accumulated every month or so and

was removed. The area surrounding and includin g the portion

of the site leased by Schilberg is known as the “Northwest

Disposal Area".

Sometime prior to 1965, a barn and residence were

constructed on the south central portion of the site along

Route 44. During the period between 1965 and 1970,

A25

Thomas Nigro, a former owner of the site constructed a

restaurant east of the residence and barn. The restaurant was

operated until approximately 1980. Nigro also operated a

tractor sales and service and scrap metal operation at the site

using the barn as a garage. The restaurant, residence and barn

were destroyed by a fire in approximately 1980. On or about

1990, the then owner of the site, Ashford Development

Corporation ("ADC"), demolished the burned structures and

disposed of the burned debris on the site without a permit.

The portion of the site, including the location of the former

restaurant, residence and barn/garage is referred to as the

"South Central Disposal Area".

The DEP received complaints about potential

pollution at the site asearly as 1977. In 1991 and 1992, DEP

staff conducted several investigations of the site and took

surface soil samples. The DEP staff conducted three or four

additional site investigations between 1992 and 1997. In

1993, Shawmut Bank, a former mortgagee of the property,

hired a private environmental consultant, Rizzo Associates,

Inc. ("Rizzo"), to investigate environmental conditions at the

site. In February of 1993, Rizzo conducted a Level I

investigation consisting of a site inspection, review of the

site's history and files of relevant state and local agencies.

Rizzo conducted a more detailed second or Level I

investigation in late 1993 and early 1994. The Level I

investigation focused on the Northwest Disposal Area

because of its known contamination and on the South Central

Disposal Area because of its history of extensive activity. In

conducting the Level II investigation, Rizzo took soil

samples, dug test pits and groundwater monitoring wells in

the Northwest and South Central Disposal Areas.

_ During its 1991 and 1992 site inspections, DEP staff

observed that the portion of the site formerly leased by

Schilberg was devoid of vegetation and contained pieces of

A26

charred wire. The soil in this area was stained a blue-green

color. The blue-green color of the soil was probably the result

of copper oxidation associated with the wire-burning

activities. A mass analysis DEP soil samples from the

Northwest Disposal Area revealed lead levels of 8200 parts

per million ("ppm"), copper levels of 61,000 ppm, barium

levels of 170 ppm and cadmium levels of 7.2 ppm. A mass

analysis of background samples taken by DEP staff at the

same time from undisturbed areas of the site revealed lead

levels of 32 ppm, copper levels of 48 ppm, barium levels of

18 ppm and cadmium levels of 0.25 ppm. The lead and

copper levels detected by DEP staff in the Northwest Disposal

Area exceed the Direct Exposure Criteria ("DEC") of the

remediation standards' indicating that the soils pose a threat

to human health.

DEP staff twice analyzed soil samples from the

Northwest Disposal Area using the Toxicity Characteristics

Leaching Procedure ("TCLP") developed by the federal

Environmental Protection Agency. Those analyses revealed

a concentration of 90 and 140 ppm for lead, 420 and 520 ppm

for copper, 2.2 and 3.1 ppm for barium, and 0.01 and 0.09

ppm for cadmium.

Rizzo also analyzed soil samples from the Northwest

Disposal Area using the TCLP process and detected lead and

barium in six of its eight samples at concentrations ranging

from 4.9 to 98 milligrams per liter ("mg/L") and 0.6 to 2.9

mg/L, respectively. Rizzo also detected cadmium in four of

its soil samples in concentrations ranging from 0.1 to 0.2

mg/L and silver in one sample of concentration of 0.1 mg/L.

' The remediation standards § 22a-133k-1 et seq. ("RCSA"), adopted

pursuant to General Statutes § 22a-133k(a), establish criteria for various

substances in soil and groundwater which, when exceeded, represent a threat to

human health and the environment.

A27

Rizzo also analyzed the soil from its test pits in the

Northwest Disposal Area. Soil in three of the test pits

contained lead at concentrations ranging from 1.5 mg/L to 31

mg/L, and the presence of cadmium in one of those pits at a

concentration of 0.1 mg/L.

All the concentrations of the various substances

detected by the DEP staff and Rizzo in the soils of the

Northwest Disposal Area exceed the relevant pollution

mobility criteria of the remediation standards? indicating that

those soils pose a threat to groundwater quality.

The concentration of lead in these soils exceed the

federal threshold of 5 parts per million set in 40 CFR § 26.24

as well as the Connecticut Standard RCSA § 22a444(c)-100

et seq. The soils thus constitute hazardous waste under 42

U.S.C. § 6901 et seq. and General Statutes § 22a-448(3). The

Rizzo test pits in the South Central Disposal Areal reveal the

presence of Total Petroleum Hydrocarbons ("TPH") at levels

of 12,000, 5,300 and 180 milligrarns per kilogram (“mg/kg”’).

Rizzo’s analysis of soil samples from two of its three well

borings in the South Central Disposal Area also revealed TPH

at concentrations of 5,100 and 59 mg/kg. Three of the five

TPH concentrations in the soils of the South Central Disposal

Area exceed the Pollution Mobility Criterion for TPH of 500

mg/kg. The TPH in the soils of the South Central Disposal

Area is reasonably likely to pollute the groundwaters of the

state and pose a threat to human health.

Rizzo detected TPH in all five of its groundwater

monitoring wells in the Northwest Disposal Area at

? The Pollution Mobility Criteria of the Remediation Standards

address the risk to groundwater quality posed by various substances in soil.

(RCSA § 22a-133k-2(c). The Pollution Mobility Criteria for groundwater

classified GA are 0.015 mg/L for lead, 1.3 mg/L for copper, 1.0 mg/L for

barium and 0.005 mg/L for cadmium. RCSA § 22a-133k-2.

A28

concentrations ranging from 0.5 to 5.5 mg/L. Duplicate

samples taken by Rizzo from its monitoring well RIZ-3 in the

Northwest Disposal Area revealed the presence of the

Volative Organic Compound’? ("VOC") toluene‘ at

concentrations of 2.7 mg/L and 3.5mg/L. Rizzo also detected

barium in all of its wells in the Northwest Disposal Area at

concentrations ranging from 0.02 mg/L to 0.06 mg/L.

In the South Central Disposal Area, Rizzo detected

TPH in three of its four monitoring wells at concentrations

ranging from 0.8 to 3.0 mg/L and barium in two of its wells

at concentrations of 0.03 mg/L and 0.09 mg/L. Rizzo also

detected the VOCs toluene and acetone at concentrations of

5.7 micrograms per liter ("ug/L") and 23 ug/L, respectively,

in one well, and another VOC, CIS-1,2-dichloroethene, at a

concentration of 3.2 ug/L, in another well.

Rizzo drilled another monitoring well outside the

South Central Disposal Area, south of the wetlands near the

former restaurant, because of a report in the DEP's files which

indicated that contaminants might have been dumped in these

wetlands. Rizzo detected TPH in that well at a concentration

of 0.9 mg/L and three VOCs (toluene, xylene and acetone) at

concentrations of 16, 4.3 and 33 ug/L, respectively.

All but one of the TPH concentrations detected in the

groundwater of the site exceed the Groundwater Pollution

Criterion of the Remediation Standards of 0.5 mg/L for

groundwater designated GA. See RCSA § 22-133k-3. TPH

concentrations are of particular health concern because of the

carcinogenic compounds in TPH. The TPH and VOCs

detected in the groundwater of the site are not naturally

> VOCs are generally solvents or other petroleum based products.

* Toluene is a solvent and a component of refined petroleum products

which is not naturally found in groundwater.

A29

occurring and therefore exceed the criteria established in the

water quality standards for groundwater classified as GA.

Groundwater in the Northwest Disposal Area flows

southeasterly towards the onsite wetlands, and in the South

Central Disposal Area flows easterly towards the man-made

pond.

In its site inspections in 1991 and 1992, DEP staff

observed over 10 cubic yards (“c.y.””) of solid waste on the

surface of the Northwest Disposal Area including wood, tires,

vehicle parts, household appliances and household refuse.

DEP staff also observed two piles of demolition debris and

another pile of wood debris, each in excess of 10 c.y., and

approximately a dozen empty drums in the South Central

Disposal Area near the former restaurant. In the area between

the former restaurant and the man-made pond, DEP staff

observed man-made fill with waste materials, scrap metal and

machine gears sticking out of the soil.

In the area north of the South Central Disposal Area,

DEP staff observed two piles of fill, each in excess of 10c.y.,

containing cement blocks, empty metal drums, wooden

demolition debris, piping and scrap metal.

In the northeast corner of the site, DEP staff observed

a flat area, almost the size of a football field, which appeared

to have been recently leveled off. The area had wire, vehicle

parts and metal containers sticking out of its surface.

Rizzo discovered solid waste in four of its eight test

pits in the Northwest Disposal Area. The solid waste

included wood paneling, household trash, broken brick

masonry, wire, scrap metal and wood. Rizzo also found solid

waste in seven of its eighteen test pits in the South Central

Disposal Area, including plastic, wood, masonry, wire,

household trash, photographic film scraps, plywood, car parts,

piping and demolition debris. The volume of solid waste

detected in the South Central Disposal Area test pits ranged

A30

from 2 c.y. to 15 c.y. in each test pit.

Thomas O’Connor of the DEP staff visited the site on

December 1, 1997. At the time of this observation, he noted

that the color of the soil in the Northwest Disposal Area

appeared slightly less blue than it had been in 1991, but the

area was still devoid of vegetation. Mr. O’Connor also

observed that the amount of visible solid waste at several of

the disposal areas of the site had decreased, but he was unable

to determine if solid waste had actually been removed from

the site or buried or relocated on the site.

Solid waste has the potential to pollute groundwater.

Rain water coming into contact with solid waste dissolves the

soluble components of the solid waste, releasing those

components to the groundwater below. Organic matter

present in solid waste alters the chemistry of the underlying

groundwater, increasing the solubility of certain compounds

in the soil such as iron, manganese and heavy metals. If the

solid waste is buried, the solubility of these compounds

increases. The process by which contaminants dissolve and

enter the groundwater is known as leaching and groundwater

containing such dissolved contaminants is known as leachate.

In their 1991 and 1992 inspections of the site, DEP

staff observed a reddish-yellow leachate, typically found

around landfills, running through the inland wetlands and

seeping into the man-made pond, and some leachate staining

on the inlet to the pond. During the December 1, 1997 site

visit, DEP staff observed similar leachate staining nearing the

inlet to the man-made pond. Based on substantial evidence,

the hearing officer concluded that the solid waste at the site

polluted, and was reasonably likely to continue to pollute, the

waters of the state and must be removed to a licensed disposal

facility to eliminate a source of pollution to the waters of the

State.

The existing site investigations do not fully reveal the

A31

we > a oe a i. r

pa Bae Al, es = ei

TING RINE OE Ce RRR

character and extent of soil and groundwater pollution at the

site.

The DEP, as of the date of the hearing, had an

inventory of several thousand sites in Connecticut that

required additional investigation and possible remediation.

In early 1993, DEP staff tried unsuccessfully to

persuade a former owner, ADC to voluntarily remediate the

site, but never took any formal enforcement action against

ADC because of concerns about limited staff resources. In

early 1996, after Cadle Properties of Connecticut, Inc. (“Cadle

Properties”), the plaintiff’s predecessor in title, obtained the

site, DEP staff also tried to persuade Cadle Properties to

voluntarily remediate the site. When those efforts proved

unsuccessful, the Commissioner issued an order to Cadle

Properties on February 7, 1997. Upon learning that Cadle

Properties had transferred the site to the plaintiff, the

Commissioner withdrew the order and issued the order which

is the subject of these proceedings.

The DEP staff neither discussed voluntary remediation

of any portion of the site with Benjamin Schilberg, nor did the

Commissioner take formal enforcement action against

Schilberg.

Benjamin Schilberg’s son, Bernard Schilberg, has

been vice president of Schilberg Integrated Metals, the

successor company to Schilberg Iron & Metals, since

approximately 1987. Bernard Schilberg has also been a

member of the Underground Storage Tank Petroleum Clean-

up Account Review Board (“the UST Board”) since 1994, and

in that role, has had contact with several DEP staff member,

including the Chief of the DEP Waste Management Bureau.

Elsie Patton and Thomas O’Connor were not aware of

Bernard Schilberg’s position with the UST Board prior to

hearing his testimony in the hearing before the DEP hearing

officer and had no contact with him during the period of time

A32

when the decision to issue the current order was made.

Ms. Patton testified that the DEP did not pursue an

enforcement action against Benjamin Schilberg because his

responsibility was limited to a portion of the site and issuing

an order to both Schilberg and the site’s owner would have

resulted in delays in the hearing process and in the overall

remediation of the site.

General Statutes § 22a-432 provides that if the DEP

Commissioner “finds that any person has . . . created a

condition . . . or is maintaining any . . . 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.” “Pollution,” for purposes of § 22a-432, “means .

. the contamination of rendering unclear or impure or

prejudicial to public health of any waters of the state by

reason of any wastes or other material discharged or deposited

therein... .” General Statutes § 22a-423. Section 22a-423

further defines “rendering unclear or impure” as “any

alteration of the physical, chemical or biological properties of

any of the waters of the state... .” General Statutes § 22a-

423. The hearing officer, based on substantial evidence,

found that the deposits of TPH, VOCs and heavy metals in

the groundwaters of the site had altered the chemical

properties of those waters and thus polluted them within the

meaning of § 22a-432. The contamination of such pollution

can be anticipated in view of the continuing presence of the

contaminants in the soil of the site.

The solid waste on the surface and in the soils of the

site also polluted the groundwaters of the state by altering the

chemical properties and will continue to do so unless

removed from the site. The solid waste presents a risk of

pollution to the ponds on the site.

In v, issioner_of Environmental

A33

Protection, 226 Conn. 358, 382 (1993), the Supreme Court

found that an owner of property is “maintaining” for purposes

of § 22a-432 when the owner fails to abate pollution existing

on their property that reasonably can be expected to create a

source of pollution to the state’s water regardless of their

responsibility for the creation of the condition. The Starr case

is dispositive of the legal obligation of this plaintiff owner

with respect to the pollution on its property. General Statute

§ 22a-207(6) defines as a solid waste disposal area a location

used for the disposal of more than ten cubic yards of solid

waste. General Statutes § 22a-208a requires the DEP

Commissioner to issue a permit to establish a solid waste

facility. Substantial evidence in the record establishes that no

permit was issued for this particular site to operate as a solid

waste facility. The plaintiff thus has an unpermitted solid

waste facility on its property in violation of

§ 22a-208a. The DEP Commissioner is authorized to issue an

order correcting or abating violations of

§ 22a-208a. See § 22a-225. The Commissioner's order

required the owners to secure the site from vehicular entry,

remove the solid waste from the site to an approved facility,

investigate the extent and degree of soil, groundwater, and

surface water pollution and based on the results of the

investigation, propose and undertake remedial action to

correct the pollution. Remedial orders of the DEP must bear

reasonable relationship to the substantive violations which

underlie the order. Connecticut Building Wreckine Co. v.

Carothers, 218 Conn. 580, 605 (1991). The lead and copper

contamination in the soils of the Northwest Disposal Area

pose a threat to human health from direct exposure. Securing

the site from unauthorized entry minimizes the risk of direct

human exposure and also prevents the disbursal of the

contaminants and the depositing of other wastes at the site.

The solid waste at the site has polluted and is

A34

reasonably likely to pollute the groundwaters of the state. The

removal of the solid waste is necessary to eliminate the

source of pollution to the waters of the state. The DEP staff

and Rizzo associates' testing confirms soil and groundwater

contamination on the site. The testers have not completely

-€xamined the site and further testing is necessary to determine

the full degree and extent of site coniamination.

Remedial action is necessary in order to remove the

existing pollutants from the waters of the state and to prevent

the further pollution of waters of the state. In this

appeal, the plaintiff challenges the evidentiary basis of the

decision; evidentiary rulings relating to the DEP's

enforcement policy and a claim of selective prosecution.

At the outset, the court notes the "standard of review

for all of the plaintiff s claims on appeal. Because [the court

is] reviewing the decision of an administrative agency, [the

court's] review is highly deferential .. . . Ordinarily, this

court affords deference to the construction of a statute

applied by the administrative agency empowered by law to

carry out the statute's purposes .... [A]n agency's factual and

discretionary determinations are to be accorded considerable

weight by the courts . . . . Cases that present pure questions of

law, however, invoke a broader standard of review than is

ordinarily involved in deciding whether, in light of the

evidence, the agency has acted unreasonably, arbitrarily,

illegally or in abuse of its discretion. . . . Furthermore, when

a state agency's determination of a question of law has not

previously been subject to judicial scrutiny . . . the agency is

not entitled to special deference . . . [I]t is for the courts, and

not administrative agencies, to expound and apply governing

principles of law . . .” (Citations omitted: intemal quotation

marks omitted.) Bezzini v. Dept. of Social Services, 49 Conn

App. 432, 436 (1998).

The court's "review of an agency's factual

A35

determination is constrained by General Statutes § 4-183(j),

which mandates that a court shall not substitute its judgment

for that of the agency as to the weight of the evidence on

questions of fact. The court shall affirm the decision of the

agency unless the court finds that substantial rights of the

person appealing have been prejudiced because the

administrative findings, inferences, conclusions, or decisions

are .. . (5) clearly erroneous in view of the reliable, probate,

and substantial evidence on the whole record. . . . This limited

standard of review dictates that, with regard to questions of

fact, it is neither the function of the trial court . . . to retry the

case or to substitute its judgment for that of the administrative

agency. . . . An agency’s factual determination must be

sustained if it is reasonably supported by substantial evidence

in the record taken as awhole.... Substantial evidence

exists if the administrative record affords a substantial basis

of fact from which the fact in issue can be reasonably inferred

.... This substantial evidence standard is highly deferential

and permits less judicial scrutiny than a clearly erroneous or

weight of the evidence standard of review. . . .The burden is

on the plaintiff to demonstrate that the [agency's] factual

conclusions were not supported by the weight of substantial

evidence on the whole record... ." (Brackets omitted;

Citations omitted; internal quotation marks omitted.) New

England Cable Television Assn., Inc. v. DPUC, 247 Conn.

95, 117-18 (1998).

The claim of selective prosecution imposes an

extremely difficult burden on its proponent. Schnabel v.

Tyler, 230 Conn. 735, 762 (1994). The proponent must prove

that (1) the person compared with others similarly situated

was selectively treated; and (2) that such selective treatment

was based on impermissible considerations such as race,

religion, intent to inhibit or punish the exercise of

constitutional rights, or malicious orbad faith intent to injure

A36

a person. See LeClair v. Saunders, 627 F.2d 606, 608-610

(2d. Cir. 1980), cert. denied, 450 U.S. 959 (1981). The

plaintiff compares itself not to other similarly situated owners

of property, but rather to other parties who participated in the

pollution of the site. Such persons as non-owners would not

be similarly situated. The plaintiff does not allege that the

selective treatment was based on any impermissible

considerations and have no basis of a claim of malicious or

bad faith intent. The hearing officer was free to accept the

testimony of Patton and O'Connor that they were unaware of

the connection between the Schilbergs. The plaintiff's claim

if it asserts bias by the DEP is not supported by evidence of

the disqualifying interest. The party who contends that the

decision is influenced by bias bears the burden of proving the

disqualifying interest. See Jutkowitz v. Department of Health

Services, 220 Conn. 86, 100 ( 1991); Petrowski v. Norwich

Free Academy, 199 Conn. 231, 236, appeal dismissed, 479

U.S.802 (1986); Clishman v. Board of Police Commissioners,

223 Conn. 354, 361 (1992).

The plaintiff's evidentiary claims relate to the

evidence which would purportedly contradict the assertion

that the parties responsible for the active pollution were not

the subjects of the order to avoid a more complex hearing.

The relevancy of such-evidence is negligible in view of the

limited impact. Whether the DEP could have or should have

prosecuted other parties responsible for the pollution on the

site; unquestionably, the Commissioner is authorized to

pursue any party, like the plaintiff who maintains the site.

Where the legislature has specifically empowered the

Commissioner with such authority, it is inappropriate for the

court to rewrite the statute to require a different process and

result. This is especially the case after the Starr decision,

which clearly establishes the owner's liability regardless of the

property's history.

A37

Accordingly, the final decision of the DEP is affirmed

and the appeal is dismissed.

Robert F. McWeeny

IN THE MATTER OF : ORDER NO. SRD-0888

CADLEROCK

PROPERTIES

JOINT VENTURE, L.P. : OCTOBER 23, 1998

FINAL DECISION

INTRODUCTION

On August 15, 1997, the Commissioner of

Environmental Protection issued Order No. SRD-088 to

Cadlerock Properties Joint Venture, L.P. (the respondent).

The order alleges that the respondent has created or is

maintaining a facility or condition which reasonably can be

expected to create a source of pollution to the waters of the

State, and is maintaining a solid waste disposal facility

without a permit, on a parcel of land it owns along Route 44

in Ashford and Willington, Connecticut. The order requires

the respondent to undertake certain investi gatory and remedial

actions to address those conditions. The respondent filed a

timely appeal from the order and I conducted public hearings

on November 24, November 25, December 3, December 1 1

and December 17,1997.

The record amply demonstrates the existence of soil

and groundwater pollution at the site and the presence of

quantities of solid waste in excess of Statutory requirements.

Some of the soils on the site contain lead and copper in

concentrations which pose a threat to public health.

Concentrations of total petroleum hydrocarbons and heavy

metals in the soils of the site could render, or may already

have rendered, the sitc's groundwater unsafe for human

A39

consumption. Solid wastes on the site have polluted the

waters of the state and are reasonably likely to continue to do

so unless they are removed. Furthermore, these solid wastes

are present in sufficient quantities to constitute a "solid waste

disposal area," requiring, but lacking, a permit from the

Commissioner. Because the respondent, as the owner of the

site, is maintaining these conditions and is the owner of land

on which a violation of the solid waste statutes has occurred,

and because the remedial actions required by the order are a

reasonable means of correcting or abating such conditions, I

affirm the order.

FINDINGS OF FACT

A. Procedural History

1. On August 15, 1997, the Commissioner of

Environmental Protection (Commissioner) issued Order No.

SRD-088 (the order, attached hereto as Appendix B) to

Cadlerock Properties Joint Venture, L.P. (the respondent)

pursuant to Conn. Gen. Stat. §§22a-6, 22a-225, 22-424 and

22a-432. (Ex. DEP-9) The respondent is an Ohio limited

partnership with its principle place of business at 100 North

Center Street, Newton Falls, Ohio. (Respondent's Answer,

Docket Item 1)

2. The respondent owns a 335 acre parcel of land

on the north side of Squaw Hollow Road (aka Route 44) in

Ashford and Willington (the site). Jd. The order alleges, inter

alia, that at the site the respondent has created or is

maintaining a facility or condition which reasonably can be

expected to create a source of pollution to the waters of the

State and has maintained a solid waste disposal facility

without a permit. The order requires the respondent, inter

alia, to secure the site from unauthorized vehicular entry, to

remove all solid wastes from the site to a lawfully-operating

solid waste facility, to investigate the existing and potential

extent and degree of soil, ground water and surface water

pollution on or emanating from the site, to undertake remedial

actions to abate such pollution, and to monitor the

effectiveness of those remedial actions. (Ex. DEP-9)

~ The respondent filed a timely appeal of the

order on September 16, 1997 (Docket Item 1). I conducted

hearings on the appeal on November 24, November 25,

A41

December 3, December 1 1 and December 17, 1997, and a site

visit on December |, 1997.

B. The .Site and its History

4. Approximately 294 acres of the site are in

Ashford and the remaining 41 acres are in Willington. There

are two ponds (Moritz Pond in the eastern portion of the site

and a manmade pond in the south central portion) and some

intermittent watercourses on the site. Approximately a third

of the site is inland wetlands. (Ex. DEP-4; see map from Ex.

DEP-4 attached hereto as Attachment 1)

» The groundwater at the site is classified as GA

pursuant to the Connecticut Water Quality Standards (WQS)

adopted pursuant to Conn. Gen. Stat. §22a-426 and revised

April 12, 1996. (Exs. DEP-4 & -5) Groundwater classified as

GA should be suitable to serve as a source of public or private

water supply without treatment and should contain no

chemical or biological constituents other than those of natural

origin. WQS, p. 27.

6. Some time between 1967 and 1972, Benjamin

Schilberg (dba Schilberg Iron & Metals) leased approximately

10,000 square feet of the northwest portion of the site for

approximately one year. Benjamin Schilberg burned insulated

copper wire at the leased area to recover the copper for resale.

The ash resulting from that burning process was stored on site

until a truckload of ash had accumulated every month or so

and was removed. (Ex. DEP-7; test. Benjamin Schilberg,

12/3/97, tr. pp. 49-50; test. T. O'Connor, 12/11/97, tr. pp.

45-46) (The area surrounding and including the portion of the

site leased by Benjamin Schilberg will be referred to herein as

the "Northwest Disposal Area.")

A42

7. Prior to 1965, a barn and residence were

constructed on the south central portion of the site along

Route 44, Sometime between 1965 and 1970, Thomas Nigro,

a former owner of the site, constructed a restaurant east of the

residence and barn. He operated that restaurant until about

1980 and, for an indeterminate period of time prior to 1980,

he also operated a tractor sales and service and scrap metal

operation at the site, using the barn as a garage. The restaurant

and residence (including the barn) were destroyed by a fire

around 1980. Around 1990, the then owner of the site,

Ashford Development Corp., demolished the burned

structures and disposed of the burned debris on the site

without a permit. (Ex. DEP-4; test. T. O'Connor, 12/2/97, tr.

pp. 11-12) (The portion of the site including and surrounding

the location of the former restaurant, residence and

barn/garage will be referred to herein as the “South Central

Disposal Area.”)

8. The DEP received complaints of potential

pollution at the site as early as 1977. (Exs. Resp.-2 and -8) In

1991 and 1992, DEP staff conducted several investigations of

the site and took surface soil samples (referred to herein as

"DEP soil samples"). The staff conducted three or four

additional site investigations between 1992 and 1997. (Test.

T. O'Connor, 1213/97, tr. p. 11)

9. In 1993, Shawmut Bank, a former mortgagee

of the property, hired a private environmental consultant,

Rizzo Associates, Inc. (Rizzo), to investi gate conditions at the

Site. Rizzo conducted an initial Level | investigation, in

February of 1993 which consisted of a Site inspection, and a

review of the site’s history and the files of relevant state and

local agencies. (Ex. DEP-4) Based on the information

uncovered during the Level | investi gation, Rizzo conducted

A43

a more detailed second, or Level II, investigation in late 1993

and early 1994. The Level II investigation focused on the

Northwest Disposal Area because of its known contamination

and on the South Central Disposal Area because of its history

of extensive human activity. As part of its Level I

investigation, Rizzo took soil samples from, and dug test pits

and groundwater monitoring wells in the Northwest and

South Central Disposal Areas (referred to herein as the “Rizzo

soil samples,” “Rizzo test pits,” and “Rizzo monitoring

wells,” respectively). (Test K. King, 11/24/97, tr. p. 138,

11/25/97, tr. p. 10)

e. Soil Pollution

10. During its 1991 and 1992 site inspections,

DEP staff observed that the portion of the site formerly leased

by Benjamin Schilberg (see FF-6) was devoid of vegetation

and contained pieces of charred wire and soils stained a blue-

green color. (Test. M. McDaniel, 11/24/97, tr. p. 37; test. T.

Botti, 11/24/97, tr. p. 111, see also test. T. O’Connor,

12/3/97, tr. p. 25, test. K. King, 11/24/97, tr. p. 150) The blue-

green color of the soil was likely the result of copper

oxidation associated with Benjamin Schilberg’s wire-burning

activities. (Test. M. McDaniel, 11/24/97, tr. p. 54; test T.

O’Connor, 12/3/97, tr. p. 30)

11. | A mass analysis' of soil samples from the

Northwest Disposal Area revealed lead levels of 8200 parts

per million (ppm), copper levels of 61,000 ppm, barium levels

of 170 ppm and cadmium levels of 7.2 ppm. By comparison,

a mass analysis of background samples taken by DEP staff at

' A mass analysis measures the total quantity of a specific chemical

constituent in a soil sample. (Test T. Botti, 11/24/97, tr. p. 84)

A44

the same time from an undisturbed area of the site nearby

revealed lead levels of 32 ppm, copper levels of 48 ppm,

varium levels of 18 ppm, and cadmium levels of 0.25 ppm.

The lead and copper levels detected by DEP staff in the soils

of the Northwest Disposal Area exceed the Direct Exposure

Criteria (DEC) of the Remediation Standards” indicating that

those soils pose a threat to human health (see test. E. Patton,

12/17/97, tr. pp. 30-31).

12. DEP staff also twice analyzed its soil samples

from the Northwest Disposal Area using the Toxicity

Characteristics Leaching Procedure (T CLP) developed by the

Federal Environmental Protection Agency.’ Those analyses

revealed concentrations of 90 and 140 ppm for lead, 420 and

520 ppm for copper, 2.2 and 3.1 ppm for barium, and 0.01

and 0.09 ppm for cadmium. (Ex. DEP-5)

Rizzo also analyzed its soil samples using the TCLP

and detected lead and barium in six of its ei ght samples from

the Northwest Disposal Area at concentrations ranging from

4.9 to 98 milligram per liter (mg/L) and 0.6 to 2.9 mg/L,

respectively. Rizzo also detected cadmium in four of its soil

* The Remediation Standards, RCSA §22a-133k-1, et. seq., adopted

pursuant to Conn. Gen. Stat. §22a-133k(a), establish Criteria for various

substances in soil and groundwater which, when exceeded, represent a threat to

human health and the environment. (Test. E. Patton, 12/17/97, tr. pp. 14-15)

The DEC, as their name implies, address the risk to human health posed by

direct exposure to the listed substances through the skin or by ingestion.

(RCSA §122-133k-2(b); test. E. Patton, 12/17/97, tr. pp. 5, 33) The DEC for

lead and copper in soils is 500 ppm and 2,500 ppm, respectively. RCSA §122-

133k-2, Appendix A.

* The TCLP is used to measure the concentration of a given

constituent in a sample capable of dissolving, or leaching, into groundwater.

(Test. T. Botti, 11/24/97, tr. pp. 89, 127: test. T. O'Connor, 12/3/97, tr. p. 103;

test. E. Patton, 12/17/97, tr. p. 34)

A45

samples at concentrations ranging from 0.1 to 0.2 mg/L and

silver in one sample at a concentration of 0.1 mg/L. (Ex.

DEP-S)

Rizzo also analyzed the soil from its test pits in the

Northwest Disposal Area. Soil in three of the test pits

contained lead at concentrations ranging from 1.5 mg/L to 31

mg/L, and the presence of cadmium in one of those pits at a

concentration of 0.1 mg/L. (/d.)

All of the concentrations of the various substances

detected by the DEP staff and Rizzo in the soils of the

Northwest Disposal Area exceed the relevant Pollution

Mobility Criteria* of the Remediation Standards indicating

that those soils pose a direct threat to groundwater quality.

(Test. T. Botti, 11/25/93, tr. p. 94)

Because the lead levels in these soils also exceed the

federal threshold of five parts per million set forth in 40

C.F.R. §261.24, these soils also constitute hazardous waste*

under federal and state law; see 42 U.S.C. §6901, et. seq.,

* The Pollution Mobility Criteria of the Remediation Standards

address the risk to groundwater quality posed by various substances in soil.

(RCSA 22a-133k-2(c); test. E. Patton, 11/24/97, tr. pp. 17, 34) The Pollution

Mobility Criteria for groundwater classified GA (see FF-5) are 0.015 mg/L for

lead, 1.3 mg/L for copper, 1.0 mg/L for barium and 0.005 mg/L for cadmium.

RCSA §22a-133k-2, Appendix B.

* A material classified as hazardous waste may “cause, or

significantly contribute to, an increase in mortality, or an increase in serious

irreversible, or incapacitating reversible, illness; or pose a substantial or

potential hazard to human health or the environment when it is improperly

treated, stored, transported, disposed of or otherwise managed ... .” 40 C.F.R.

§261.24, incorporated by reference into RCSA §22a-449c-101(a)(1).

A46

Conn. Gen. Stat. §22a-448(3) andRCSA §22a-449(c)-100, et.

seq. ;

13. Tests conducted by Rizzo of the soils from its

test pits in the South Central Disposal Area indicated the

possible presence of Volatile Organic Compounds (VOCs)°,

(Ex. DEP-5; test. T. O’Connor, 12/3/97, tr. p. 104) VOCs do

not occur naturally in the environment and their presence at

the site is therefore evidence of a release from human activity.

(Test. K. King, 11/24/97, tr. p. 166, 11/25/97, tr. p. 23)

Three other tests conducted by Rizzo of the soils from

its test pits in the South Central Disposal Area revealed the

presence of Total Petroleum Hydrocarbons (TPH)’ at levels

of 12,000, 5,300 and 180 milligrams per kilogram (mg/kg).

(Ex. DEP-5) Rizzo’s analysis of soil samples from two of its

three well borings in the South Central Disposal Area also

revealed TPH at concentrations of 5,100 and 59 mg/kg. (Ex.

DEP-5) Three of the five TPH concentrations in the soils of

the South Central Disposal Area exceed the Pollution

Mobility Criterion for TPH of 500 mg/kg. RCSA §22a-133k-

2, Appendix B. Accordingly, the staff offered unrebutted

expert testimony, and I so find, that the TPH in the soils of the

South Central Disposal Area is reasonably likely to pollute

° VOCs are generally solvents or other petroleum-based products.

(Test. K. King, 11/24/97, tr. p. 166)

’ TPH is a mixture of petroleum-based compounds and is thus a

subset of VOCs. (Test. T. O’Connor, 12/3/97, tr. p. 136; test. E. Patton,

12/17/97, tr. p. 44)

A47

the groundwater of the state and pose a threat to human

health. (Test. E. Patton,® 12/17/97, tr, p. 40, 44)

D. Solid Waste

14. During its site inspections in 1991 and 1992,

DEP staff observed over ten cubic yards (c.y.) of solid waste

on the surface of the Northwest Disposal Area including

wood, tires, vehicle parts, household appliances and

household refuse. (Exs. DEP-14B, -14D; test. M. McDaniel,

11/24/97, tr. p. 15; test. T. Botti, 11/24/97, tr. p. 101)

DEP staff also observed two piles of demolition

debris’ and another pile of wood debris, each in excess of ten

c.y., and approximately a dozen empty drums in the South

Central Disposal Area near the former restaurant. Between

the former restaurant and the man-made pond, DEP staff

observed man-made fill with waste materials, scrap metal and

machine gears sticking out of it. (Ex. DEP-13, -14J; test. M.

McDaniel, | 1/24/97, tr. pp. 20-21; test. T. O’Connor, 12/3/97,

tr. pp. 18, 42-43)

In the area north of the South Central Disposal Area,

DEP staff observed two piles of fill, each in excess of tenc.y.,

containing cement blocks, empty metal drums, wooden

* Ms. Patton has Masters and Bachelors of Arts Degrees in Geology

and has been employed by the DEP since 1980. She has been the Assistant

Director of the Permitting, Enforcement and Remediation Division of the DEP

Bureau of Water Management since 1993. (Ex. DEP-15) The respondent

proffered no expert testimony on any issue during the hearing.

* The demolition debris, because of its content and location, appeared

to be the remains of the former restaurant residence and barn/garage. (Test. T.

Botti, 11/24/97, tr. p. 102; test. T. O'Connor, 12/3/98, tr. pp. 12-13, 12/11/97,

tr. p. 65; see FF-7)

A48

demolition debris, piping and scrap metal (Exs. DEP-14E, -

14G, -14H, -141; test. T. Botti, 11/24/97, tr. p. 102; test. T.

O’Connor, 12/3/97, tr. pp. 14, 16, 12/11/97, tr. p. 161; see

also test. K. King, 11/24/97, tr. p. 152)

In the northeast comer of the site DEP staff observed

a flat area, almost the size of a football field, which appeared

to have been recently leveled off. The area had wire, vehicle

parts and metal containers sticking out of its surface. (Test.

McDonald, 11/24/97, tr. pp. 24-24; test. T. O’Connor,

12/3/97, tr. pp. 13-14; see also test. K. King, 11/24/97 tr. p.

151)

15. Rizzo discovered solid waste in four of its

eight test pits in the Northwest Disposal Area, including wood

paneling, household trash, broken brick masonry, wire, scrap

metal and wood. Rizzo also found solid waste in seven of its

eighteen test pits in the South Central Disposal Area,

including plastic, wood, masonry, wire, household trash,

photographic film scraps, plywood, car parts, piping and

demolition debris. (Ex. DEP-5) The volume of solid waste

- detected in the South Central Disposal Area test pits ranged

from 2 c.y. to 15 c.y. in each test pit.'° (Jd.; test. K. King,

11/24/97, tr. pp. 173-175, 178-180, 11/25/97, tr. p. 9)

16. During the site visit of December 1, 1997,

Thomas O’Connor'' observed that the color of the soil in the

° The presence of solid waste in the walls and floor of the test pits

indicated that solid waste extended beyond the boundary of each pit. (Test. K.

King, 11/24/97, tr. p. 174)

'' Mr. O’Connor has a Bachelor of Science degree in Geology and

Geophysics and had primary responsibility at DEP for investigating conditions

at the site and for recommending issuance of the current order. He has been

A49

Northwest Disposal Area appeared slightly less blue than it

had been in 1991, but that the area was still devoid of

vegetation, indicating continued environmental stress. (Test.

T. O’Connor, 12/3/97, tr. p. 23) He also observed that the

amount of visible solid waste at several of the disposal areas

of the site had decreased, but he was unable to determine if

solid waste had actually been removed from the site or if it

had only been buried or relocated. (Test. T. O’Connor,

12/3/97, tr. pp. 10, 11, 13-14, 25, 29-30)

17. Solid waste can pollute groundwater in two

ways. First, rainwater coming into contact with solid waste

dissolves the soluble components of the solid waste, releasing

those components to the groundwater belong. (Test. E. Patton,

12/17/97, tr. pp. 20-21) Second, organic matter present in

solid waste alters the chemistry of the underlying

groundwater, increasing the solubility of certain compounds

in the soil such as iron, manganese, and heavy metals. (Test.

E. Patton, 12/17/97, tr. p. 22) If the solid waste is buried, the

solubility of these compounds increases. (Test. E. Patton,

12/17/97, tr. p. 23; test. T. O'Connor, 12/3/97, tr. p. 139) The

process by which contaminants dissolve and enter the

groundwater is known as leaching and groundwater

containing such dissolved contaminants is known as leachate.

(Test. E. Patton, 12/17/97, tr. p. 20-21)

18. During one of its site inspections in 1991 or

1992, DEP staff observed a reddish yellow leachate, typically

found around landfills, running through the inland wetlands

and seeping into the man-made pond, and some leachate

staining on the inlet to that pond. (Exs. DEP-S5, -14K; test. T.

employed by the DEP as an environmental analyst since 1989. (Ex. DEP-16)

A50

O'Connor, 12/3/97, tr. pp. 18-19 & 21) DEP staff observed

similar leachate staining near the inlet to the man-made pond

during the December 1, 1997 site visit. (Test. T. O'Connor,

12/3/97, tr. pp. 18-19)

19. _— The staff offered unrebutted expert testimony,

and I so find, that the solid wastes at the site have polluted,

and are reasonably likely to continue to pollute, the waters of

the state and must be removed to a licensed disposal facility

to eliminate a source of pollution to the waters of the state.

(Test. E. Patton, 12/17/97, tr. p. 55)

E. Groundwater Pollution.

20. Rizzo detected TPH in all five of its

groundwater monitoring wells in the Northwest Disposal Area

at concentrations ranging from 0.5 to 5.5 mg/L. Duplicate

samples taken by Rizzo from its monitoring well RIZ-3 in the

Northwest Disposal Area revealed the presence of the VOC

toluene’” at concentrations of 2.7 mg/L and 3.5 mg/L. Rizzo

also detected Barium in all of its wells in the Northwest

- Disposal Area at concentrations ranging from 0.02 mg/L to

0.06 mg/L. (Ex. DEP-5)

In the South Central Disposal Area, Rizzo detected

TPH in three of its four monitoring wells at concentrations

ranging from 0.8 to 3.0 mg/L and barium in two of its wells

at concentrations of 0.03 mg/L and 0.09 mg/L. Rizzo also

detected the VOCs toluene and acetone at concentrations of

5.7 micrograms per liter (ug/L) and 23 ug/L, respectively, in

? Toluene is a solvent and a component of refined petroleum

products which is not naturally found in groundwater. (Test. K. King,

11/25/97, tr. p. 15)

AS1

one well, and another VOC, CIS-1, 2-dichloroethene,” at a

concentration of 3.2 ug/L, in another one. (Ex. DEP-5)

Rizzo drilled another monitoring well outside of the

South Central Disposal Area, south of the wetlands near the

former restaurant, because of a report in the DEP’s files

which indicated that contaminants might have been dumped

in these wetlands. (Ex. RESP.-8; test. K King, 11/24/97, tr.

p. 159, 11/25/97, tr. p. 16) Rizzo detected TPH in that well at

a concentration of 0.9 mg/L and three VOCs (toluene, xylene

and acetone) at concentrations of 16, 4.3 and 33 ug/L,

respectively. (Ex. DEP-5)

All but one of the TPH concentrations detected in the

groundwater of the site exceed the Groundwater Pollution

Criterion of the Remediation Standards of 0.5 mg/L for

groundwater designated GA. RCSA §22-133k-3, Appendix

C. Those TPH concentrations are of particular health concern

because of the carcinogenic compounds in TPH. (Test. E.

Patton, 12/17/97, tr. p. 44) In addition, the TPH and VOCs

detected in the groundwater of the site are not naturally

occurring and therefore exceed the criteria established in the

WQS for groundwater classified as GA. (See FF-5)

21. | Groundwater in tne Northwest Disposal Area

flows southeasterly towards the on-site wetlands, and in the

South Central Disposal Area flows easterly towards the

man-made pond. (Ex. DEP-5; test. K. King, 11/25/97, tr. pp.

28-29; see FF-4)

F. Need for Further Investigations

'3 CIS-1, 2-dichloroethene is a solvent. (Test. T. O’Connor, 12/3/97,

tr. p. 108)

A52

22. The various investigations of the site (see FF-4

& -5) were limited in scope, focus and duration. The staff

presented unrebutted expert testimony, and I so find, that

additional soil and groundwater sampling is necessary to fully

ascertain and characterize the degree and extent of soil and

groundwater pollution at the site. (Test. K. King, 11/24/97,

tr. pp. 157-158, 11/25/97, tr. p. 23; test. E. Patton, 12/17/97,

tr. pp. 28, 34-35, 39, 43, 46 & 57)

G. Selective Prosecution

23. At the time of the hearing, DEP had an

inventory of several thousand sites that required additional

investigation and, possibly, remediation. (Test. E. Patton,

12/1/97, tr. pp. 63-64)

24. _—In early 1993, DEP staff tried unsuccessfully

to persuade a former owner, ADC to voluntarily remediate the

site, but never took any formal enforcement action against

ADC because of concerns about limited staff resources. (Ex.

Resp.-28 & -31; Test. T. O'Connor, 12/3/97, tr. p. 109,

- 12/11/97, tr. pp. 46, 81, 133-134)

25. In early 1996, after Cadle Properties of

Connecticut, Inc. (Cadre Properties), respondent’s

predecessor in title, obtained the site, DEP staff also tried to

persuade Cadle Properties to voluntarily remediate the site.

(Ex. DEP-17; test. T. O'Connor, 12/11/97, tr. p. 143) When

those efforts proved unsuccessful, the Commissioner issued

an order to Cadle Properties on February 7, 1997. After

learning that Cadle Properties had transferred the site to the

respondent, the Commissioner withdrew that order and issued

the present one. (Exs. DEP-9 & -31)

AS3

26. DEP staff never discussed voluntary

remediation of any portion of the site with Benjamin

Schilberg, nor did the Commissioner take formal enforcement

action against him. (Ex. DEP-7; test. Benjamin Schilberg,

12/3/97, tr. pp. 49-50; test. T. O'Connor, 12/11/97, tr. pp. 45-

46)

27. Benjamin Schilberg's son, Bernard Schilberg,

has been the vice president of Schilberg Integrated Metals (the

successor company to Schilberg Iron & Metals) since

approximately 1987. (Test. Bernard Schilberg, 12/3/97, tr.

pp. 47, 86-87) Bernard Schilberg has also been a member of

the Underground Storage Tank Petroleum Clean-up Account

Review Board (the UST Board)"* since 1994 and, in that role,

has had contact with several DEP staff members, including

the Chief of the DEP Waste Management Bureau. (Test.

Bernard Schilberg, 12/3/97, tr. pp. 87-88) Elsie Patton and

Thomas O'Connor, however, were not aware of Bernard

Schilberg's position with the UST Board prior to hearing his

testimony in this proceeding and had no contact with him

during the period of time when the decision to issue the

current order was made. (Test. T. O'Connor, 12/11/97, tr. pp.

127-128; test. E. Patton, 12/17/97, tr. p. 84)

28. —_ Elsie Patton testified that DEP's primary

enforcement goal is to get contaminated sites cleaned up as

quickly and as efficiently as possible given limited staff

resources. (12/17/97, tr. p. 65) She testified further that

'* The UST Board was created by Conn. Gen. Stat. §22a-449d. It

consists of various state officials, petroleum industry representatives and

political appointees, and is responsibie for administering the underground

storage tank clean-up fund created by Conn. Gen. Stat. §22a-449c. The DEP

staff provide support services to the UST Board (see RCSA §22a-449e- 1)

AS4

pursuing enforcement actions against Benjamin Schilberg

would not have achieved that goal because Benjamin

Schilberg was responsible, at most, for only a portion of the

pollution at the site and issuing an order to both Benjamin

Schilberg and the site's owner would have unduly delayed the

hearing process and thus the overall remediation of the site.'5

(12/17/97, tr. p. 65)

'S Ms. Patton testified that orders issued pursuant to Conn. Gen. Stat

§22a 432 are inevitably appealed and that issuing an order to both the owner of

a polluted site and a party responsible for only a portion of the site's pollution

interjects the issue of joint and several liability into the enforcement

proceedings, lengthening and complicating those proceedings. (12/17/97, tr.

pp. 65-66, 75)

ASS

CONCLUSIONS OF LAW

A. ‘onn. G t. §22a-4

Section 22a-432 of the Connecticut General Statutes

provides in relevant part that if the Commissioner “finds that

any person has . . . created a condition . . . or is maintaining

any ... 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.” Pollution, for purposes of

§22a-432, “means ... the contamination or rendering unclear

or impure or prejudicial to public health, of any waters of the

state by reason of any wastes or other material discharged or

deposited therein... ."” Conn. Gen. Stat. §22a-423. Rendering

unclean or impure means “any alteration of the physical,

chemical, or biological properties of any of the waters of the

state... .” Id.

The deposition of TPH, VOCs and heavy metals into

the groundwaters of the site has altered the chemical

properties of those waters and thus polluted them within the

meaning of Conn. Gen. Stat. §22a-432. Given the continued

presence of these and other contaminants in the soils of the

site, conditions at the site can reasonably be expected to

continue to pollute the groundwater of the state.'® (FF-20)

Remediation Standards or Water Quality Standards (WQS), such exceedances

are not required in order for me to conclude that conditions at the site have

polluted, and are reasonably likely to continue to pollute, the groundwaters of

the state. These exceedances of the Remediation Standards and WQS do,

however, underscore the threat to human health and the environment posed by

the contamination at the site and indicate that remediation of this contamination

is required even without further investigation. See RCSA §§22a-133k-2(a) and

A56

The solid waste on the surface and in the soils of the

site has also polluted the groundwaters of the state by altering

their chemical properties and will continue to do so unless

removed from the site. (FF-17 & 19) Such solid waste may

also have polluted at least one of the site’s surface water

bodies and, given the direction of the site’s groundwater

flows, presents a risk of further surface water pollution. (FF-

18 & 21)

The Connecticut Supreme Court has held that the

word “maintaining” in §22a-432 includes “within its purview

a landowner who has failed to abate pollution existing on his

or her land that reasonably could be expected to create a

source of pollution to the state’s water(s) regardless of blame

for the creation of the condition.” Starr v, Commissioner of

Environmental Protection, 226 Conn. 358, 382 (1993). The

respondent has admitted ownership of the entire site and has

offered no evidence that it has abated pollution there. The

respondent is, therefore, “maintaining” such pollution within

the meaning of Conn. Gen. Stat. §22a-432.

‘B. Conn. Gen. Stat. §22a-208a(b)

Solid waste in excess of ten cubic yards has been

deposited at several locations at the site. (FF-14 & 15) A

location used for the disposal of more than ten cubic yards of

solid waste constitutes a solid waste disposal area, which is a

type of solid waste facility. Conn. Gen. Stat. §§22a-207 (4)

and (6). A permit issued by the Commissioner is required to

establish a solid waste facility. Conn. Gen. Stat. §22a-208a.

The record contains no evidence that the Commissioner has

22a-133k-3(a).

A57

ever issued anyone a permit to establish such a facility at the

site. I conclude therefore, that an unpermitted solid waste

facility exists at the site in violation of Conn. Gen. Stat. §22a-

208a.

The Commissioner is authorized to issue an order

correcting or abating violations of §22a-208a “to the owner of

any land on which the violation occurs regardless of whether

the owner of the land participated in the violation.” Conn.

Gen. Siat. §22a-225. The respondent, as the owner of the

land on which an unpermitted solid waste facility has been

established, is, therefore, responsible for correcting or abating

that violation.

aS Reasonableness of the Order

The remedial provisions of an administrative order

must bear a reasonable relationship to the substantive

violations alleged in that order. Connecticut Building

Wrecking v. Carothers, 218 Conn. 580, 605 (1991). The

order at issue here requires the respondent to secure the site

from vehicular entry, remove the solid waste from the site to

an approved facility investigate the extent and degree of soil,

ground water and surface water pollution at and emanating

from the site and, based on that investigation propose and

undertake remedial action to correct such pollution. (FF-2)

The soils in the Northwest Disposal Area, because of

their levels of lead and copper contamination pose a threat to

human health from directexposure. (FF-11) Securing the site

from unauthorized entry 's necessary to minimize the risk of

direct human exposure to, and the potential dispersal of those

contaminants by, unauthorized persons entering the site and

driving through the contaminate area.

A58

A Sar a atngeenshonynaittaegeat ounevenemroreee eee eT = a *

I have concluded above that the solid waste at the site

has polluted, and is reasonably likely to continue to pollute,

the groundwaters (and possibly the surface waters) of the

State. See §A, above. Because this waste cannot be disposed

of safely at the site, it must be removed to a licensed disposal

facility as required by the order to eliminate a source of

pollution to the waters of the state. (FF-19)

Scientific tests conducted by DEP staff and Rizzo

Associates have confirmed soil and groundwater

contamination at the site at levels which require immediate

remediation. (See FF-11-13, 20; RCSA §22a-133k; see §A,

f.n. 17). Further tests may reveal the presence of other

contaminants at levels which require remediation. Because

the full extent and degree of the site’s contamination is

presently unknown (FF-22), acomprehensive investi gation is

required to fully determine the degree and extent of that

contamination. (/d.)

Accordingly, I conclude that the remedial provisions

of the order are reasonably related to the substantive

’ violations alleged in the order and are necessary and

appropriate to correct them.

D. lecti tion

The respondent has raised in its appeal the affirmative

defense of “selective prosecution, claiming that, based upon

an invidious or arbitrary standard, the Commissioner has

treated it differently than he treated a previous owner and a

prior tenant.

In general, administrative agencies have broad

discretion to decide when and against whom to exercise their

A5S9

enforcement powers. Oyler v. Boles, 368 U.S. 448, 456

(1962); Starr v. Commissioner of Environmental Protection,

226 Conn. 358, 392-93 (1993). Mere laxity in administration

of the law against others, for example, is not enough to

sustain a claim of selective prosecution, nor, standing alone,

is a finding that the person prosecuted was the only one ever

prosecuted for the offense charged. LeClair v. Saunders, 627

F.2d 606, 608 (2d Cir. 1980); Bianco v. Darien, 157 Conn.

548, 559 (1969); Electrical Contractor, Inc. v. Tianti,

Superior Court, judicial district of Hartford-New Britain at

Hartford, Docket No. CV89-0364799 (March 26, 1991) (6

CSCR 444), rev’d. on other grounds, 223 Conn. 573 (1992);

Pomarico’s Service Center, Inc. v. Department of Motor

Vehicles, Superior Court, judicial district of New Haven at

New Haven, Docket No. CV95-0375056 (September 4,

1996); Oyler, supra at 456. Instead, the party asserting a

claim of selective prosecution must shoulder the “heavy

burden” of proving not only difference in treatment, but that

that difference in treatment was rooted in some invidious or

arbitrary standard. U.S. v. Barrios, 501 F.2d 1207, 1211 (2d

Cir. 1974); State v. Haskins, 188 Conn. 432, 474 (1982);

Oyles, supra at 456.

In order, to prevail on its claim of selective

prosecution the respondent must prove that: “(1) ... compared

with others similarly situated, [it] was selectively treated; and

(2) that such selective treatment was based on impermissible

considerations such as race, religion, intent to inhibit or

punish the exercise of constitutional nghts or malicious or

bad faith intent to injure... .” Schnabel v. Tyler, 230 Conn.

735, 762 (1994). Although the respondent has claimed that

it was treated differently than other potential respondents, it

has not claimed that such treatment was. based on its

membership in a protected class or its exercise of a

A60

constitutionally protected right. The only possible basis for

its claim of selective prosecution, therefore, is that the

Commissioner issued the order which is the subject of the

current proceeding because of a malicious or a bad faith intent

to injure the respondent.

At any point in time, there are literally hundreds of

sites whose owners could potentially be the subject of a DEP

enforcement order. (FF-23) Because of the large number of

polluted sites potentially requiring remediation and the

Department’s limited resources, the Commissioner must,

perforce, exercise considerable discretion in deciding when,

and against whom, to issue an enforcement order.

The respondent has compared itself only to two other

entities--Ashford Development Company (ADC), a former

owner of the site, and Benjamin Schilberg, the individual

responsible for the wire burning activities at a portion of the

site over 26 years ago. It is not at all clear, however, that the

respondent is similarly situated to either ADC or Benjamin

Schiiberg.

The respondent owned the subject site at a different

point in time than ADC. Therefore, even if conditions at the

site may have been similar, the relative need for remediation

of this particular site (as compared to other contaminated sites

in the state) or the level of staff resources available to

investigate and prosecute an enforcement order (at the time

each entity owned the site) may not have been the same.

Benjamin Schilberg's legal responsibility for the

contamination at the site is considerably less than that of

respondent. As a lessee, Benjamin Schilberg is responsible

for cleaning up only that portion of the pollution at the site

which resulted from his own activities, while the respondent,

Aél

as the site's present owner, is responsible for abating all of the

pollution on the site.

Ultimately, I need not resolve the question of whether

ADC or Benjamin Schilberg are similarly situated to the

respondent since the respondent has clearly failed to establish

the second prong of its selective prosecution defense, namely,

that DEP treated it differently than ADC or Benjamin

Schilberg out of a malicious or a bad faith intent to injure.

It is true that the Commissioner never issued an order

to ADC but sought its voluntary compliance instead. (FF-24)

However, there is no way of determining on the present

record whether DEP would eventually have issued an order to

ADC if ADC had continued to own the site. Respondent

certainly provided no evidence that DEP decided to issue an

order to the respondent because of the change in the site's

ownership or because of the specific identity of the new

owners. Similarly, the respondent did not prove that the

staff's articulated reason for not issuing an order to ADC,

namely staff shortages, was not the real reason for the staff's

actions. (FF-24) The respondent has therefore failed to

demonstrate that it was treated differently than ADC out of a

malicious or bad faith intent to injure on the part of the

Department.

Respondent's claim of selective prosecution vis-a-vis

Benjamin Schilberg rests entirely on the fact that Benjamin

Schilberg's son, Bernard Schilberg, is a member of the UST

Review Board. Essentially what the respondent is claiming

is that Benjamin Schilberg, because of his son's connections

at the DEP, received more favorable treatment from the DEP

than did the respondent. (See FF-27) Even assuming that

such a claim could establish DEP's malice or bad faith toward

A62

the respondent, respondent offered no evidence that Bernard

Schilberg’s pasition on the board played any role in the DEP's

decision not to pursue enforcement actions against his father.

Based on the current record, I conclude that the

Commissioner's decision to issue an order to the respondent

and not to Benjamin Schilberg was a routine and

unexceptional exercise of administrative discretion. Thomas

O'Connor and Elsie Patton, the two DEP employees most

responsible for recommending issuance of the current order,

didn't even know of Bernard Schilberg's position on the UST

Board when the current order was issued. (Id.) Although the

respondent called Bernard Schilberg as a witness, it failed to

elicit (or even attempt to elicit) any testimony from him that

he attempted to intercede with DEP officials on his father's

behalf, let alone that he was successful in doing so. The

respondent also failed to elicit any testimony from any other

witness that Bernard Schilberg's position on the UST Board

influenced the Commissioner in the exercise of his discretion.

The respondent has therefore failed to demonstrate that

Bernard Schilberg's position on the UST Board, and the

. connections he developed with DEP officials through that

position, played any role (let alone a determinative one) in

DEP's decision not to issue an order to his father.

Conversely, Elsie Patton offered two plausible

explanations for not pursuing enforcement actions against

Benjamin Schilberg--that such actions, even if successful,

would not achieve remediation of the entire site and, if taken

in conjunction with an enforcement action against the site's

owner, would unduly delay the enforcement process. (FF-28)

It is respondent's burden to prove that Ms. Patton's

explanations for her enforcement decisions were not the true

basis for her actions and that she, and thus the DEP, was

A63

POE SSS TE RN a eran ee ee eee fe

really motivated by some invidious purpose vis-a-vis the

respondent. A claim of selective prosecution must be

supported by more than mere surmise and innuenda; it must

be based on actual proof of a malicious or bad faith intent to

injure. The respondent has failed to provide such proof, and,

accordingly, I must deny its claim of selective prosecution.

E. Decision

For the reasons stated above, Order No. SRD-088 is

affirmed. All of the deadlines in the order which run from the

date of issuance of the order shall instead run from the date of

this final. decision.

Date Donald H. Levenson, Hearing

Officer

A64

STATE OF CONNECTICUT

DEPARTMENT OF ENVIRONMENTAL

PROTECTION

STATE OF CONNECTICUT

V. ;

CADLEROCK PROPERTIES

JOINT VENTURE, L.P.

ORDER

A. The Commissioner of Environmental Protection (“the

Commissioner”) finds:

2 CadleRock Properties Joint Venture, L.P.

(“Respondent”), an Ohio limited partnership, with its

principal place of business at 100 North Center Street

in Newton Falls, Ohio, is the owner of properties

located between 972 and 460 Squaw Hollow Road

(aka Route 44) in Ashford and Willington,

Connecticut (“the site”) more fully described in deeds

which are recorded at page 576 of volume 110 of the

Town of Ashford land records, and at page 534 of

volume 128 of the Town of Willington land records.

2. Solid waste in excess of 10 cubic yards has been

disposed of on the site without a permit required by

Section 22a-208a(b) of the Connecticut General

Statutes.

3. The site was used for the purpose of burning

insulation off of wire to recover metals and wastes

from such activity were disposed of on the site.

A65

Soil on the site is polluted with heavy metals

including but not limited to copper and lead, volatile

organic compounds and petroleum hydrocarbons.

Ground water on the site is polluted with volatile

organic compounds.

By virtue of the above, Respondent has created or is

maintaining a facility or condition which reasonably

can be expected to create a source of pollution to the

waters of the State.

By virtue of the above, Respondent is maintaining a

solid waste disposal facility without a permit pursuant

to Section 22a-208a(b) of the Connecticut General

Statutes.

Pursuant to Sections 22a-6, 22a-225, 22a-424, and

22a-432 of the Connecticut General Statutes the

Commissioner orders Respondent as follows:

Within f-irty (30) days from the issuance of this

Order, Respondent shall retain one or more qualified

consultants acceptable to the Commissioner to prepare

the documents and implement or oversee the actions

required by this order and shall, by that date, notify

the Commissioner in writing of the identity of such

consultants. Respondent shall retain one or more

qualified consultants acceptable to the Commissioner

until this order is fully complied with, and, within ten

days after retaining any consultant other than one

originally identified under this paragraph, Respondent

shall notify the Commissioner in writing of the

identity of such other consultant. Respondent shall

A66

submit to the Commissioner a description of a

consultant’s education, experience and training which

is relevant to the work required by this order within

ten days after a request for such a description.

Nothing in this paragraph shall preclude the

Commissioner from finding a previously acceptable

consultant unacceptable.

Within thirty (30) days from the issuance of this

Order, Respondent shall secure the site from

unauthorized vehicular entry.

a. Within sixty (60) days from the issuance of

this Order, Respondent shall remove all solid waste

disposed of at the site to a lawfully operating solid

waste facility.

b. At least three (3) business days prior to

removing any solid waste from the site, Respondent

shall notify the Commissioner, in writing, of the

planned activity and of the identity of the solid waste

facility to which such wastes are to be taken.

a. Within ninety (90) days from the issuance of

this order Respondent shall submit for the

Commissioner’s review and written approval a scope

of study for the investigation of the activities

described above in paragraphs A.2. through A.5. of

this order, and the potential impact of such activities

on human health and the environment both on-site and

off-site, including but not limited to the existing and

potential extent and degree of soil, ground water and

surface water pollution. Such scope of study shall

include at least the proposed location and depths of

A67

ground water monitor wells and soil and surface water

sampling, a proposed sampling and analytical

program including at least the parameters to be tested,

proposed sampling and analytical methods, and

quality assurance and quality control procedures, and

a schedule for conducting the investigation.

b. If the investigation carried out under an

approved scope of study does not fully characterize

the extent and degree of soil, surface water and

ground water pollution to the satisfaction of the

Commissioner, additional investigation shall be

performed in accordance with a supplemental plan

and schedule approved in writing by _ the

Commissioner. Unless otherwise specified in writing

by the Commissioner, the supplemental plan and

schedule shall be submitted for the Commissioner’s

review and written approval on or before thirty days

after notice from the Commissioner that they are

required.

. Respondent shall perform the investigation

and other actions specified in the approved scope of

study and in any approved supplementa! plan(s) in

accordance with the approved _ schedule(s).

Respondent shall notify the Commissioner of the date

and time of installation of monitoring wells and of

each soil and water sampling event at least five full

business days prior to such installation or sampling.

d. Except as may be provided in the investigation

scheduled approved by the Commissioner, on or

before thirty days after the approved date for

completion of the investigation, Respondent shall

A68

submit for the Commissioner’s review and written

approval a comprehensive and thorough report which

describes in detail the investigation performed;

defines the existing and potential extent and degree of

soil, surface water and ground water pollution which

is On, is emanating from or has emanated from the

site; and evaluates the alternatives for remedial

actions to abate such pollution, including but not

limited to any alternative specified by the

Commissioner; states in detail the most expeditious

schedule for performing each alternative, and lists all

permits and approvals required for each alternative,

including but not limited to any permits required

under sections 22a-32, 22a-42a, 22a-342, 22a-361,

22a-368 or 22a-430 of the Connection General

Statutes; proposes a preferred alternative with

supporting justification therefor; and proposes a

detailed program and schedule to perform the

preferred remedial actions, including but not limited

to a schedule for applying for and obtaining all

permits and approvals required for such remedial

actions. Such report shall also include but not be

limited to a soil, surface water and ground water

monitoring program to determine the degree to which

the approved remedial actions have been effective,

and a schedule for performing the approved

monitoring program.

C. Unless another deadline is specified in writing

by the Commissioner, on or before sixty days after

approval of the report described in the preceding

paragraph, Respondent shall (1) submit for the

Commissioner’s review and written approval contract

plans and specifications for the approved remedial

A69

actions, a revised list of all permits and approvals

required for such actions, and a revised schedule for

applying for an obtaining such permits and approvals,

and (2) submit applications for all permits and

approvals required under section 22a-430 of the

Connecticut General Statutes for such actions.

Respondent shall use best efforts to obtain all required

permits and approvals.

f. Respondent shall perform the approved

remedial actions in accordance with the approved

schedule(s). Within fifteen days after completing

such actions, the Respondent shall certify to the-

Commissioner in wniting that the actions have been

completed as approved.

g. Respondent shall perform the approved

monitoring program to determine the effectiveness of

the remedial actions in accordance with the approved

schedule(s). If the approved remedial actions do not

result in the prevention and abatement of soil, surface

water and ground water pollution to the satisfaction of

the Commissioner, additional remedial actions and

measures for monitoring and reporting on the

effectiveness of those actions shall be performed in

accordance with a supplemental plan and schedule

approved in writing by the Commissioner. Unless

otherwise specified in writing by the Commissioner,

the supplemental plan and schedule shall be submitted

for the Commissioner’s review and written approval

on or before thirty days after notice from the

Commissioner that they are requir

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.