50 DAY STREET ASSOCIATES v. NORWALK HOUSING AUTHORITY.

2005 Ct. Sup. 8745
No. X08 CV 02 0191396 SConnecticut Superior Court Judicial District of Stamford-Norwalk Complex Litigation Docket at Stamford
May 17, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
ADAMS, JUDGE.

I. Background
The plaintiff 50 Day Street Associates Limited Partnership (Partnership) purchased two parcels of property in South Norwalk in 1984. On the parcel known as 50 Day Street the plaintiff, with assistance of a loan from the Connecticut Development Authority, renovated an existing building into commercial office space. The defendant Norwalk Housing Authority (NHA) owns the property which abuts the north and east sides of the 50 Day Street parcel and which is the site of NHA’s Washington Village Housing Complex.

In 1998 the Partnership sought refinancing from GE Capital of its existing loan. As part of the refinancing process Vertex Engineering Services, Inc. (Vertex) conducted a Phase I environmental study and subsequently a limited subsurface investigation of 50 Day Street. A draft report of the investigation was submitted to GE Capital in 1999 indicating the existence of hydrocarbon product in certain soil borings taken from 50 Day Street. GE Capital reduced the amount it had previously indicated it might loan the Partnership, and the proposed financing collapsed.

The Partnership retained GZA Geoenvironmental, Inc. (GZA) to conduct a Phase I and Phase II environmental study of its 50 Day St. parcel which was completed in 2000.[1] GZA reported finding a layer of petroleum product measuring 1.4 feet in thickness floating on the top of the groundwater at Monitoring Well (MW) 5 located in the northeast corner of 50 Day Street and a layer 0.3 feet thick at MW 3 located in southeast corner of the property. Ex. 22, pp. 23-24. Subsequently, on April 13, 2001 GZA wrote the Partnership noting the floating petroleum product of heating type oil on top of the groundwater and of the presence of CT Page 8746 significant oil contamination in soil borings (SB) located at the northeast corner of 50 Day Street (SB-4) and approximately eighty feet south southwest (SB-16). The letter stated that GZA could not identify an “on-site source” for the oil and “our findings indicate the source of oil originates from an off-site location.” Ex. 31. GZA noted that underground storage tanks for heating oil at NHA’s Washington Village Housing Project were located one hundred feet north of 50 Day Street and that the groundwater flow direction “indicates these tanks lie up-gradient of your property. Based on our findings we believe the Washington Village USTs [underground storage tanks] present a potential source for the petroleum impacts identified by GZA on your property.” Id.

The Partnership asked the Mayor of Norwalk to investigate, and subsequently the City forwarded the matter to NHA. NHA engaged Brooks Laboratories (Brooks) to determine whether its underground storage tanks were leaking. In a report dated July 5, 2001 Brooks stated that its subsurface investigation found that the soil in certain areas around three underground storage tanks contained petroleum hydrocarbons. However, Brooks concluded through a “fingerprint” analysis that the contamination in the soil did not match the oils found in the USTs and that the soil contamination “was most likely caused by contact with contaminated ground water in the area.” Exhibit 502, p. 2. Similarly, Brooks concluded that while groundwater from a monitoring well immediately to the south of the southernmost UST (Tank 3) showed elevated levels of total petroleum hydrocarbons, this product also did not match the oils found in the USTs. Id. 4. Brooks concluded:

“Based on the results found, it is unlikely that any contamination found on neighboring properties originated on the Washington Village site. There is no evidence that the underground storage tanks on the property are leaking. Furthermore, monitoring wells placed in the vicinity of the property lines show groundwater with non-detectable levels of contaminants.”

Id. The Brooks report also noted that the three “inactive underground storage tanks still contained large amounts of oil” and recommended that they be removed. Id. 5.

Brooks and GZA continued to spar over the source of the oil pollution on 50 Day Street but no agreement was reached. In September 2002 the Partnership filed this lawsuit. The operative CT Page 8747 complaint has six counts. The first count seeks reimbursement of costs associated with cleaning up 50 Day Street pursuant to General Statutes § 22a-452.[2] The second through fifth counts allege negligence, negligence per se, nuisance and trespass respectively. The sixth count seeks relief pursuant to General Statutes § 22a-16.[3] NHA has denied the material allegations of the complaint.

A trial before the court was held in September 2004 lasting ten trial days. Post-trial briefing and arguments were completed in January 2005.

II. Discussion
A preponderance of the credible evidence establishes the following. Significant amounts of oil pollutants exist underground at both the Partnership’s 50 Day Street property and in the area of NHA’s Washington Village property directly to the north and east of 50 Day Street. The pollution on 50 Day Street is shown by the above-mentioned report of Vertex as substantiated and expanded on by the findings of GZA.[4] Gary Cluen, a principal of GZA, who testified as an expert for the Partnership, stated that GZA estimated in 2000, when its measurements were taken, that approximately 1,000 gallons of oil was in the soil or groundwater under 50 Day Street. Transcript, September 21, 2004, 83.

On the NHA property, in addition to the Brooks findings, NHA’s trial expert Dr. Gordon Binkhorst of Alta Environmental Corp. (Alta) confirmed through soil borings and monitoring wells that oil was found in the vicinity of the location of the underground storage tanks.

It is undisputed that there were three underground storage tanks at the Washington Village complex for a number of years prior to 2003. The cylindrical steel tanks lay on north-south axes roughly between a furnace building and a residential apartment building with Tanks 1 and 2 parallel to each other and Tank 3 some feet to south of the other two. The southern end of Tank 3 was approximately seventy feet from the northeast corner of 50 Day Street. Tanks 1 and 2 were installed in the ground in 1976 and Tank 3 was installed about 1941. Washington Village converted its heating system from oil to natural gas in 1987, but the tanks remained in the ground and they remained partially, if not substantially, filled with oil. CT Page 8748

NHA showed studied indifference in its approach to the potential problems posed by leaving oil in aging underground tanks. An employee of an engineering firm working for NHA at Washington Village in 1990 contacted the Norwalk Fire Marshal to confirm the proper means of dealing with the tanks. Exhibit 12 (Testing around tanks for contamination, if contamination is found tanks and soil to be removed; if no contamination, tanks to be filled with inert substance and left in place.) It is highly probable this information was conveyed to NHA, but no action was taken. Robert Colonnese has been the construction manager for NHA since 1992, and reports to Candace Mayer, the deputy director of NHA since 1988. He was not aware of any NHA program to insure compliance with regulations governing USTs or environmental compliance in general. The lack of such programs was confirmed by Mayer. According to Colonnese no one at NHA had been assigned responsibility for the three tanks and NHA relies solely on contractors hired for specific projects to ensure environmental compliance. He was responsible for hiring Brooks Laboratories in 2000 but until 2003 he was not aware there were three underground tanks.

Mayer, to whom all NHA operations, except finance, reported, confirmed there was no environmental compliance program in place at NHA although apparently one was being developed at the time of trial. Transcript September 16, 2004, 132-33. She confirmed that NHA relied on consultants and outside contractors to make sure NHA was in compliance with environmental regulation, but only she, not Mr. Colonesse nor anyone else who reported to her, had the authority to hire such outside assistance. Id. 133-34. While she was aware of the existence of the underground tanks, she was not conversant with reporting or regulatory requirements concerning them. Id. 136, 157. As a result no environmental compliance advice about the USTs was sought until after the Partnership wrote its letter to Norwalk in 2001. Mayer also testified that it was a conscious decision to allow the tanks to remain underground and not removed because of a purported lack of funds to remove them. Id. 137-38.

According to Birkhorst and others, steel underground storage tanks have a life expectancy of about fifteen years in the ground, and the likelihood of leaking is especially greater when a tank remains in the ground beyond its life expectancy. See e.g. Transcript, September 28, 2004, 161-62. CT Page 8749

In 2003, after this suit had been commenced, NHA hired Envirotech of Fairfield County (Envirotech) to remove the three USTs on its property. A video tape and photograph of the excavation and removal project in May 2003 shows that Tank 3, which had been underground for approximately 60 years, had a number of holes in it, at least one was approximately the size of a fist. Exhibits 46, 47; Exhibit 60, Appendix D, Photographs 50-51, 57-61. The invoice for the removal work indicated that there were 1763 gallons of sludge in Tanks 1 and 2 and 2896 gallons of oil remaining in Tank 3 along with oil in the fill lines. Exhibit 62.

GZA, Brooks and Envirotech took samples of the water and soil surrounding the tank excavation site. A number of the samples showed oil present. A soil sample from the bottom of the Tank 3 excavation indicated total extractable petroleum hydrocarbons of 9480 mg/kg, i.e. 9480 parts per million, considerably above the Connecticut Department of Environmental Protection Remediation Standard Regulation, Direct Exposure Criteria of 2500 parts per million which is used for areas such as the Washington Village — 50 Day Street area which are industrial and commercial sites and the 500 ppm used where groundwater is used for drinking. Exhibit 60, Appendix E, see also Transcript, September 21, 2004, 73-74.

In April 2004 Envirotech began pumping out groundwater and removing oil contaminated soil from and near the area where the three USTs had been removed. This process continued until about the middle of June 2004 when it was halted. A substantial amount of the removed soil remained in a pile on NHA property.

III. Negligence
A. Negligence Claim. With the excavation of the long concealed USTs certain matters became established, although perhaps not readily recognized by NHA. These were set forth in the trial testimony of NHA’s expert, Binkhorst. First, in Binkhorst’s professional opinion, and contrary to the earlier determination of Brooks Laboratories, there had been a release of oil into the ground from Tank 3 at Washington Village. Transcript, September 28, 2004, 44-48. This conclusion was based on data showing oil in soil borings and the existence of holes in Tank 3. Second, Binkhorst conceded that NHA did not follow good practices when it simply left the three USTs in ground, unemptied and with open fuel lines, between 1986 and 2003, without checking to see if there were leaks. Id. 162-64. Indeed, NHA’s practices CT Page 8750 violated a number of Connecticut environmental regulations. See e.g. Regulations of Connecticut State Agencies §§ 22a-449(d) 104 (detection of releases and required closure of UST if unable to comply) 105 (investigation and reporting of releases) 107 (closure of UST in conformance with National Fire Protection Association publication number 30), 110 and 111 (requirement to remove or properly abandon UST after expiration of life expectancy, i.e. empty tank and fill with inert material).

The court determines that NHA was negligent in leaving its tanks in the ground long after their useful life and long after they ceased to have any use to NHA which switched to gas heat in 1987. NHA was negligent in taking no steps to ascertain what environmental consequences might or did occur because the tanks were left underground. NHA was negligent in determining not to remove the tanks for financial reasons and apparently not knowing or not considering the potential effect of several thousand gallons of oil left in overage tanks. NHA, and its outside contractor Brooks, were negligent when advised of the Partnership’s concerns in 2001 in not identifying the oil contamination found near the tanks in 2001 as being the same oil type as had been used in the tanks.[5] NHA was negligent in not following Brooks Laboratories’ advice to remove the tanks in 2001, instead waiting almost two years. Finally, NHA was negligent in not beginning to investigate the extent of oil contamination on its property and start to remediate it for almost three years, or until April 2004.

B. Causation. The Partnership claims that NHA’s negligence in connection with the release of oil from Tank 3 caused the underground oil pollution on 50 Day Street. The basis upon which this claim rests are the facts and opinions in the testimony of Gary Cluen and set forth in various studies and reports prepared by GZA. As noted, GZA found the heaviest concentration of oil contamination at SB-3 which is three feet from in the northeast corner of 50 Day Street where 2.8% of the weight (28,000 milligrams/kilograms) of the soil sample in 2000 was oil product and at MW-5 (20 feet south of SB-3) where over a foot of oil product was floating at the top of the groundwater level. Transcript, September 21, 2004, 70; Ex. 22.

In order to ascertain the source of this pollution GZA examined three potential sources on 50 Day Street itself. The potential sources had been pointed out to the Partnership in a site assessment of the property done in 1985 by the engineering firm CT Page 8751 of Fuss and O’Neill.[6] These included a old dry well on the western edge of the property, near the front entrance to the present building, a shed near the northeast corner of the property and a stained area nearby, and an underground storage tank near the southeast corner. Exhibit 530. The Partnership had the UST removed and switched to gas heat, had the visually contaminated soil near the northeast corner removed, a volume of nine feet square and two inches deep, and had two feet of soil removed at the drywell which was contaminated with machine oil. All of this was done around 1985-1986 according to Mr. Brighton a member of the Partnership who testified that the persons who removed the UST reported no leakage at that site. Transcript, September 14, 2004, 94-95; see also Exhibit 22, 8-9.

Mr. Cluen testified that in his opinion these potential sources of pollution on 50 Day Street were not the source of the 1000 gallons of oil he believed to be under the ground of that parcel. It was his opinion that

“[T]he likely cause of the fuel oil contamination at 50 Day Street is the releases from the Norwalk Housing Authority property from the underground tank with the observed holes in it.”

Transcript, September 21, 2004, 131-32. The bases for this opinion was the gradient of the groundwater level across 50 Day Street which dropped about two feet indicating a generally northeast to southwest groundwater flow and the fact that the type of oil product contaminating 50 Day Street was contained at one time or another in NHA tanks. Id. 132. Mr. Cluen also opined that oil pollutants could have flowed from NHA’s property to 50 Day Street by means of utility lines that run southward from Washington Village near the eastern border of 50 Day Street.

Dr. Binkhorst testified to his opinion that while there was no evidence that any oil had leaked from Tanks 1 and 2, there had been a leak from Tank 3. However, it was his opinion that “that the releases from tank number 3 at Washington Village did not migrate to the 50 Day Street property.” Transcript, September 28, 2004, 50. This opinion was based on his determination that the groundwater flow “is from the 50 Day Street property toward the area of the Washington Village USTs.” Id. Dr. Binkhorst also testified that the bases for his opinion included the fact that the Brooks Laboratory report in 2000 indicated the highest concentrations of heating oil were found on the north side of CT Page 8752 Tank 3 (the side away from 50 Day Street) and a lack of oil saturation in the tank grave when it was excavated in 2003. Id.
51, 114-15. Dr. Binkhorst discounted the theory that the contamination could have moved on to 50 Day Street through the utility lines.

This court is faced with the task of sorting through, analyzing and determining the relative strength of the two very conflicting professional opinions of Mr. Cluen and Dr. Binkhorst. The task is not made easier by the fact that both have excellent credentials with Mr. Cluen having more, and perhaps, broader experience. Both presented their testimony in a knowledgeable, thoughtful and credible manner, and both took pains to explain the sometimes bewildering acronyms and jargon common to their field of expertise.

The issue of groundwater flow is critical to this case because the flow is the major reason underground oil contamination migrates. Petroleum has a lesser density than water and tends to rest, or float, on top of the water table. It will migrate in the same direction as the groundwater flows. See Transcript, September 21, 2004, 36-37. On the issue of groundwater flow on NHA property, Dr. Binkhorst had a distinct advantage because he had access to data on NHA’s property whereas Mr. Cluen did not, until the very last days before trial. Cluen and GZA were able to perform extensive groundwater analyses on 50 Day Street and concluded that the groundwater flow under that property was generally from the northeast to the south and southwest with the top of the groundwater table falling approximately two feet from north to south. While there are slight disagreements as to the precise flow direction it is not contested that it is generally in a southerly direction from the north side of 50 Day Street. However, Cluen had no data on groundwater levels, gradients, or flows on the NHA property to the north and east of 50 Day Street until a week or so before trial.[7] Transcript, September 22, 2004, 146; September 23, 2004, 14, see also Transcript September 21, 2004, 75 (where Cluen said it was “just a belief” that the areas north of 50 Day Street would be upgradient.

The data from the September 10, 2004 testing showed that the elevation of the groundwater levels on NHA property were lower than the level of the groundwater at MW-5 near the northeast corner of 50 Day Street. For instance, the groundwater level at MW-5 was 4.74 feet in elevation above sea level while levels at the monitoring wells on NHA property closest to 50 Day Street CT Page 8753 were 4.72 and 4.63 feet (at GP 103-MW and GP 102-MW respectively.). Moving further north at GP101-MW, a little south of the former location of Tank 3 the elevation was 4.10 feet and at MW-202, slightly to the west of and between the former locations of Tanks 1 and 2 and Tank 3, the level was 3.85 feet. Exhibits 571-76.

Dr. Binkhorst opined that the groundwater flow at Washington Village in the area close to 50 Day Sweet is north to northeasterly and that there exists a “groundwater divide” in the vicinity of the northeast corner of 50 Day Street at which point the water on the north side flows north and water on the south side flows in a southerly direction. Transcript September 28, 2004, 62.

In response, Mr. Cluen stated his professional opinion that NHA’s efforts in the spring of 2004 to remediate the oil pollution on its property caused the ground water flows at the Washington Village site to be altered. Specifically, he contends that excavation of the contaminated soil in the area where the three USTs were located and the pumping out of contaminated groundwater has artificially and temporarily lowered the groundwater levels on that part of NHA’s property. He points out that 31,000 gallons of groundwater were pumped out between April 15, 2004 and June 1, 2004 and this water removal created a depression or inverted “cone” in the groundwater level near the former UST location. He bases this opinion on several pieces of evidence. First, he noted that MW-5 located near the northeast corner of 50 Day Street had no measurable free product on September 10, 2004 whereas at each prior examination measurable free product was found atop the groundwater level at that location. Second, the difference between the groundwater levels at MW-5 and MW-3 had, since measurements began, been between 1.41 and 1.49 feet (MW-3, in the southeast corner being lower). On September 10, 2004 the difference was exactly one foot, indicating, according to Mr. Cluen, that the ground water level at MW-5 had been lowered. Third, Cluen believed that the water levels at Washington Village were significantly lower in September 2004 than in May 2003 when the USTs were removed. Cluen was of the opinion that it might take six months to a year for the groundwater levels to be recharged and recover fully, but he expected that when that occurred the groundwater levels near the former UST locations would be higher than those on 50 Day Street. Transcript, September 21, 2004, 170-71. CT Page 8754

Dr. Binkhorst disagreed with Mr. Cluen’s opinion that the pumping activity at Washington Village had altered the groundwater flow in the area between the USTs’ former location and 50 Day Street for any significant period of time. Based on his own observations and the observations of others he concluded that the top of the water level table at or near the USTs’ site had remained approximately the same, at 4.0 to 4.3 feet above sea level, during the period of time from the tanks’ excavation in May 2003, to the period immediately before the pumping began in April 2004 through the September 10, 2004 measurements. Transcript September 28, 2004, 68-75; Exhibits 526, 571, 606.

The evidence with respect to the groundwater level near the USTs at the time of their excavation in 2003 and later remedial excavation in 2004 is somewhat unclear. There is an amalgam of pictures and personal observations which were interpreted in several ways. For instance, Mr. Zubarev of Brooks Laboratories testified that the tops of Tanks 1 and 2 were 30 inches below ground before being removed. Transcript September 24, 2004, 75. Mr. Cluen did his calculations on the basis that he heard Mr. Zubarev say 13 inches below ground. Transcript September 29, 2004, 79. Using the figure 13 inches (1.08 feet) Mr. Cluen, noting that pictures of the May 2003 tank removal showed water about halfway up the six-foot diameter tanks, calculated that the groundwater was at an elevation of 5.9 feet above sea level. If the tanks were actually 2.5 feet below ground this elevation would actually be 4.48 feet. Mr. Dynia, an associate principal of GZA who was present at the site when the USTs were removed on May 28, 2003, noted that Tanks 1 and 2 were located 30 inches below grade. Exhibit 633. The defendant’s calculations, which indicate the groundwater level near the former UST site did not fall significantly between May 2003 and September 2004 are more persuasive.

Having reviewed all the evidence the court concludes that the Partnership has not proven by a preponderance of the evidence that the groundwater flow is down gradient from the area of the concededly leaking Tank 3 toward 50 Day Street. The groundwater elevation measurements taken in August and September 2004 show that the groundwater runs northward and away from the northeast corner of 50 Day Street. Nor has the Partnership proven that this groundwater flow is an anomalous, or temporary condition. The evidence is mixed, at best, with regard to whether the groundwater elevation at the UST locations in September 2004 was significantly lower than in prior years. There is no evidence CT Page 8755 that the 2004 pumping created an artificial inverted cone or depression in the groundwater level. Each groundwater elevation reading on NHA property is progressively lower in elevation the further north the reading is made. There was no evidence that the groundwater level starts to rise again north of the area where the pumping took place because there were no readings in that area. In addition, there was testimony from those present at the pumping that groundwater rather rapidly refilled the excavation where the pumping was taking place, and of course over three months had passed from the cessation of pumping before the latest elevation measurements were taken.

The court also finds that there is insufficient evidence to prove that the contamination of 50 Day Street was caused by oil pollution migrating from Washington Village through the filled-in trenches where underground utility lines had been installed. Mr. Cluen testified that the excavation for and laying of utility lines can create a preferential path through which contamination can flow, and in this case could act as a tunnel through any groundwater divide that might exist along the property line of 50 Day Street. Transcript September 29, 2004, 109. Mr. Cluen pointed out that a map prepared by Yankee Gas indicated the existence of a gas line running south from an area near the location of Tank 3 about 25-30 feet east of 50 Day Street at a depth of approximately four feet below the ground. Exhibit 135. Mr. Cluen testified that this would place the bottom of the utility trench “below the water table on Washington Village and above the water table on most of 50 Day Street.” Transcript, September 29, 2004, 107. Mr. Cluen noted that one of the monitoring wells on NHA property near the gas line had a high level of contamination, and he hypothesized that the oil from Tank 3 could have entered 50 Day Street by way of the groundwater flowing south through the trench and spreading on to 50 Day Street. However, this opinion relies on Mr. Cluen’s estimate that the groundwater elevation near the tanks was 5.9 feet to 5.34 feet, a fact which this court has found not proven Id.

Dr. Binkhorst testified, credibly, that underground utility lines can only potentially influence groundwater flow when they are below the groundwater level. Id., 36; Transcript September 28, 2004, 96. The court finds the hypothesis that oil contamination flowed on to 50 Day Street by means of the utility line trench not proven because the groundwater flow appears to be below the utility trench both near 50 Day Street (conceded by Mr. Cluen) and on NHA property. CT Page 8756

Other evidence presented reinforces the court’s determination that the plaintiffs have not proven that groundwater flow led to the oil pollution from Tank 3 migrating to 50 Day Street. During the remedial work done in the spring of 2004 at Washington Village there was a significant amount of contaminated soil and water removed. As of April 29, 2004, two weeks after remediation began, 388 tons of soil had been removed. Exhibit 131. Records in evidence indicate more than 230 additional tons of soil were removed after April and perhaps as much as 80 tons remained on the NHA site at the time of trial. Exhibit 127; Transcript September 23, 2004, 148; see also Exhibit 134. This soil was apparently highly contaminated. Two reports showed that three samples contained 5,435, 18,388 and 25,156 parts per million of total petroleum hydrocarbons, far exceeding the Connecticut Direct Exposure Criteria of 2500 parts per million. The remedial excavation and pumping took place largely around the Tank 3 site and northward to and beyond the sites of Tanks 1 and 2. Transcript September 23, 2004, 172, 176-77; Exhibit 112. The northwest wall of the excavation site remained contaminated. Transcript September 24, 2004, 64. While not definitive proof, the significant amount of contamination found north of Tank 3 fails to support the partnership’s thesis that the oil leaking from Tank 3 migrated south on the groundwater.

Plaintiff argued that Dr. Binkhorst’s expert testimony was flawed because he testified that certain oil contamination had flowed from 50 Day Street on to NHA property purportedly contradicting his testimony that the pumping on NHA property in April-May 2004 had not created an artificial cone and pulled groundwater across the divide. This “fatal inconsistency” (Pl. Post-Trial Brief, 44) it is argued, undermined Dr. Binkhorst’s opinion that there was a natural divide in the groundwater located approximately on the border between 50 Day Street and the NHA property. The court finds otherwise. First, plaintiff misstates Dr. Binkhorst’s testimony when it contends “[h]e claims that the ground-water flow on Washington Village generally flows toward 50 Day Street until it reaches this `divide’ at which point it reverses direction and flows back onto Washington Village.” Pl. Post-Trial Brief, 43. Dr. Binkhorst said no such thing. Rather, he simply testified that in his opinion the groundwater flowed generally north over the area of Washington Village in question and generally south over 50 Day Street. Transcript, September 28, 2004, 61-62; Transcript, September 29, 2004, 16. Second, Dr. Binkhorst had a reasonable explanation for CT Page 8757 his opinion that contamination on the southern portion of Washington Village originated from 50 Day Street. He testified that oil released at or near ground level will percolate downward and outward through the soil in a conical fashion until it reaches the groundwater level, and until it reaches the groundwater level, the migration of the oil can be in any direction, including a direction opposite of the groundwater flow. Transcript, September 28, 2004, 85-89.

There was considerable evidence presented by both parties on the issue of whether the contamination at 50 Day Street resulted from some spill or leakage on site. The potentially suspect areas were those identified in the Fuss O’Neill report on its investigation in 1985. As mentioned earlier these were (1) a drywell on the west side of the parcel, (2) the area in the northeast corner which had been the site of several sheds along with a 3-foot square area just to the west of the sheds with about 2 1/2 inches of sludge, and (3) an underground oil tank in the southeast corner. Mr. Cluen’s analysis that the underground oil contamination at 50 Day Street did not originate from any of those potential sources is persuasive, but in order to impose liability on NHA, the Partnership must prove more than that it must prove that NHA proximately caused the contamination on 50 Day Street. While there is certainly a possibility that NHA was the cause, the burden of proof the Partnership carries is not satisfied by possibilities, and the requisite burden of proof has not been satisfied in this case.

IV. Plaintiff’s Causes of Action Pursuant to General Statutes § 22a-452, and Sounding in Negligence Per Se, Trespass and Nuisance
As set forth in the discussion above the court has found that the plaintiff has not proved that NHA’s negligence caused the oil pollution on 50 Day Street. This finding also precludes a finding of liability against NHA on four of the remaining counts in the Partnership’s Second Revised Complaint.

The First Count is based on General Statutes § 22a-452 which is quoted supra, n. 2. That statute permits reimbursement of remediation costs of oil pollution which “resulted from the negligence” of the defendant. The statute clearly imposes an element of causation which must be proven, and has been so interpreted. See Knight v. F.L. Roberts Co., Inc., 241 Conn. 466, 474-76 (Connecticut Supreme Court thrice uses the phrase “responsible for”); Connecticut Resources Recovery Authority v. CT Page 8758 Refuse Gardens, Inc., 43 Conn.Sup. 83, 90 aff’d 229 Conn. 455
(1994) (liability “based on culpability and not merely causation”); see also Colonnade One v. Electrolux Corp., 767 F.Sup. 1215 (D.Conn. 1991.)

The Third Count alleges a cause of action based on a theory of negligence per se. An action for negligence per se requires proof of proximate causation in order to establish liability. “The common-law rule as to proximate cause applies in any common-law action for negligence, even though that action includes one or more alleged statutory violations . . .” Slicer v. Quigley, 180 Conn. 252, 256-57 (1980) overruled on other grounds Ely v. Murphy, 207 Conn. 88 (1988).

The Fourth Count alleges a claim of nuisance. This cause of action also requires proof that defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of its property. Pestey v. Cushman, 259 Conn. 345, 361 (2002).

The Fifth Count alleges a claim of trespass which likewise requires acts by the defendants causing injury. Abington Ltd. Partnership v. Talcott Mountain Science Center, 43 Conn.Sup. 424, 427 (1994) (11 Conn. L. Rptr. 349).

V. Sixth Count: General Statutes § 22a-16.
A. Liability In its last count the Partnership seeks injunctive and other relief pursuant to General Statutes §22a-16.[8] That statute is part of the Connecticut Environmental Protection Act of 1971 (CEPA) which has a stated policy that there is a public trust in the natural resources of Connecticut and it was in the public interest to provide “all persons with an adequate remedy” to protect such resources from “unreasonable pollution.” General Statutes § 22a-15.

In an action under Section 22a-16 the Partnership does not have to show its property was polluted by NHA but only that any natural resource of the state was unreasonably polluted.

“§ 22a-16 continues to provide redress for all `unreasonable pollution, impairment or destruction’ of `the air, water and other natural resources of the state’ in that it allows `any person’ to `maintain an action’ against `any person’ who . . . directly CT Page 8759 engages in such activity.”

Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 509
(2003). The Connecticut Supreme Court has described § 22a-16 as a legislative enactment expanding the concept of `private attorney generals’ empowered to institute proceedings to vindicate the public interest. Greenwich v. Connecticut Transportation Authority, 166 Conn. 337, 344-45 (1974).

Section 22a-16 provides relief from “unreasonable” pollution. The Connecticut Supreme Court has determined that what is unreasonable under § 22a-16 is that which is not in compliance with the regulatory and legislative scheme established by CEPA Waterbury v. Washington, 260 Conn. 506, 557 (2002); see als Durham Mfg. Co. v. Merriam Mfg. Co., 294 F.Sup.2d 251, 271 (2003) (release of contaminants in excess of Connecticut Department of Environmental Protection’s Remediation Standards Regulations [RSRs] is prima facie evidence of unreasonable pollution or impairment of natural resources).

The evidence is overwhelming that the leak of oil from NHA’s underground storage tank deposited oil contamination in the soil and groundwater under NHA’s property that exceeded the Connecticut Department of Environmental Protection’s Remediation Standards Regulations and Direct Exposure Criteria. Therefore, the Partnership has prevailed to the extent it has proven that NHA’s property is contaminated.

B. Relief Available. The Partnership seeks declaratory and injunctive relief as well as attorneys fees. The remedial authority of the court in a Section 22a-16 claim is set forth in Section 22a-18.[9]

The appropriate remedy in this case depends, in part, on the status of the pollution remediation project which was belatedly undertaken and then halted by NHA last year. The information presently available to the court is that the soil excavation and groundwater pumping had Transcript, September 24, 2004, 83-87.[10] ceased in June 2004 with a significant amount of excavated soil remaining on NHA property and more excavation still required. Mr. Zubarev testified that the remediation project at Washington Village had been put on hold and that he had not been advised of Dr. Binkhorst’s findings as of September 24, 2004. The evidence was unclear as to whether Brooks Laboratories or Alta Environmental was in charge of the CT Page 8760 remediation project. Compare Transcript September 24, 2004, 86 with Transcript September 28, 2004, 159-61.

On the record before it, this court finds that the Partnership is entitled to certain relief pursuant to Section 22a-16. It is entitled to an injunction requiring NHA to remediate its premises at Washington Village so that they are in compliance with all applicable state regulations governing cleanup of oil discharges.

The generally accepted criteria for issuance of an injunction is the existence of irreparable harm and the lack of an adequate remedy at law. In this case the plaintiff has established unreasonable pollution existed on NHA property. The court holds that the stated legislative policy of CEPA to “provide all persons with an adequate remedy” to protect natural resources from such pollution by means of equitable relief, General Statutes § 22a-15, is a legislative finding that money damages may not be an adequate remedy for the pollution or impairment of natural resources. See Conservation Commission v. Price, 193 Conn. 414, 429 (1987) In any event, the plaintiff is not going to receive money damages on this claim since it is representing the legislatively declared public interest. Therefore, a legal remedy is not adequate in this case and would not provide complete relief. By the same token irreparably harm arises when there is no adequate remedy at law. Moreover, the public interest in the natural resources at issue will be irreparable harmed unless action is taken to mitigate and remediate the pollution.

The court finds that the Partnership is entitled to reimbursement of certain costs and attorneys fees. General Statute 22a-18(e). It may seem ironic that the plaintiff which the court has found to be largely unsuccessful in proving its claims and which sought relief under Section 22a-16 primarily to require NHA to pay for remediation of 50 Day Street should be entitled to at least a portion of its litigation costs. Nevertheless, as noted above, it has prevailed on one statutory count which permits reimbursement of fees and costs. While this may not have been the measure of success the Partnership sought, it is worth noting that after NHA received the initial report from Brooks Laboratories opining that the contamination on 50 Day Street did not come from NHA’s USTs the position enunciated by NHA was that the matter was “closed.” Ex. 36. Had not the Partnership proceeded with this litigation it seems likely that the substantial oil contamination of NHA’s soil and groundwater caused by the leaking Tank 3 would have been ignored and CT Page 8761 unremediated.

Therefore, the court grants injunctive relief and orders that NHA remediate the Washington Village premises at issue in this case so that the premises meet all applicable regulations governing cleanup of oil discharges and further orders NHA to reimburse the Partnership the costs and attorneys fees associated with the prosecution of the Sixth Count.

The court will schedule a hearing within the next twenty days to enable NHA to present evidence of the status of its remediation program and to allow the Partnership to present evidence regarding relevant attorneys fees and costs.

So Ordered.

TAGGART D. ADAMS SUPERIOR COURT JUDGE

[1] As the court understands it, a Phase I study includes reviewing the available history of the property and its environment and visual observations to obtain information to identify areas that potentially might be contaminated. Phase II includes obtaining and evaluating limited underground soil and groundwater samples and information from areas of potential contamination. Phase II is designed to fully delineate the extent of contamination, and Phase IV covers clean up and remediation. See generally Transcript, September 21, 2004, 38-39.
[2] The pertinent part of Section 22a-452 reads “any person [or] firm . . . which contains or removes or otherwise mitigates the effects of oil or petroleum . . . 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 . . . resulted from the negligence or other actions of such person, firm or corporation.”
[3] Section 22a-16 provides in pertinent part that “any . . . partnership may maintain an action . . . for declaratory and equitable relief against . . . any . . . association . . . for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution CT Page 8762 . . .”
[4] The Vertex report also indicated contamination on the second parcel purchased by the Partnership in 1985, 51 Day Street. However, that contamination is not directly related to the issues in this case.
[5] As noted above, Brooks concluded that the oil contamination found in the ground near Tanks 2 and 3 did not “fingerprint” the same as the oil found in the tanks. Brooks identified what was found in the ground as “diesel range organic,” commonly known as number 2 fuel, oil, or heating oil. Brooks identified the oil found in both tanks 2 and 3 as being comprised of 80% “fuel oil #2/Diesel.” The failure of NHA and Brooks to at least be suspicious that the number 2 fuel oil in the ground immediately adjacent to the tanks holding oil used for heating NHA’s Washington Village came from those tanks was negligence. Exhibit 502; Transcript, September 24, 2004, 36-37. Three years later Dr. Binkhorst did not act like such an ostrich. Transcript, September 28, 2004, 47.
[6] There was no environmental assessment of the property done before it was purchased in 1984. Transcript, September 15, 2004, 57.
[7] On September 10, 2004 representatives of GZA, for the plaintiff, and Alta, for the defendant, sampled and tested various monitoring wells and soil borings on each other’s property.
[8] See n. 3 supra.
[9] Section 22a-18 reads in pertinent part:

(a) The court may grant temporary and permanent equitable relief, or may impose such conditions on the defendant as are required to protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction.

. . .

(e) The court may award any person, partnership, corporation, association, organization or other legal CT Page 8763 entity which maintains an action under section 22a-16, and obtains declaratory or equitable relief against the defendant, its costs, including reasonable costs for witnesses, and a reasonable attorneys fee.

[10] There was a suggestion that some work may have recommenced in late September. Id. 88.

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