# Petition for Writ of Certiorari — Cadlerock Properties Joint Venture, L. P. v. Connecticut Commissioner of Environmental Protection > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1507%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 531 U.S. 1148 ## 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 “* Fd 9 & 3 a : m3 g Ss “a a ¢ 3 a ¢ fi 3 “ be “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- 2 & = 4 ‘ 3 ‘3 t A s 3 4 | 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- A 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. i, 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 II 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 Al 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 A2 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. . . .” Ad 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 A5 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. A6 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. A7 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 A8 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- A9 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. I 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 II 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.” Il 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. V. 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 h [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1507%3A1. Public record. Not legal advice.