Opinion
No. CV06-4020284S
March 2, 2007
MEMORANDUM OF DECISION
I
The plaintiff began an action in May 2006 for injunctive relief against what is claimed to be "the continued environmentally harmful activities" of the defendants, Arrow Paving, Inc. and MacLellan Guilford, LLC. MacLellan owns property at 405 Whitfield Street in Guilford and Arrow operates a paving business on the property.
The complaint seeks temporary injunctive relief under § 22a-16 of the Environment Protection Act of 1971 and pursuant to its claim of a public nuisance under § 52-471 of the General Statutes. The suggested temporary injunctive orders are in part prohibitory seeking to bar certain activity and in part mandatory asking for an order from the court which is an "order commanding a party to perform and act," Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 652 (1994). All of these orders, at the time the action was brought, were to be pending permit approvals which were before the Inland Wetlands Commission and the town Planning and Zoning Commission.
In a footnote to its brief the plaintiff defines another goal of its action — "upon failure to obtain permit approval, permanent injunctive orders requiring that any continued activities be ceased or subject to reasonable control."
As noted in the defendants' brief — "prior to the commencement of this action, the defendants had applied for an inlands wetland permit from the Inland Wetlands Commission of the Town of Guilford and a special permit site plan application from Guilford's Planning and Zoning Commission. CSGS intervened in the proceedings before the Inland Wetlands Commission, but has not, to date (date of brief 9/11/06) intervened in the proceedings of the Planning and Zoning Commission."
Turning to the procedural history of this case the defendants filed a motion to dismiss the action claiming CSGS had no standing to seek the relief it requested under § 22-16 or on the public nuisance claim. The court denied that motion. A three-day evidentiary hearing was then held. After the presentation of its evidence by CSGS the defendants moved for dismissal under P.B. § 15-18 for failure to make out a prima facie case that there is unreasonable pollution under § 22a-16 or that the defendant's activities are causing a public nuisance. The court reserved judgment on that motion preferring that the record contain all the evidence in the case. This could possibly avoid having to retry this case if the court were to have been found to have improperly granted the P.B. § 15-18 motion if it were so minded.
The issues before the court require a discussion of the testimony and evidence introduced at trial. Before doing that the court will first discuss very briefly what must be shown under § 22a-16 to obtain relief and the requisites of public nuisance. Then the court will make general observations on the general standards for granting injunctive relief.
II (a)
In relevant part § 22a-16 states that "any person, partnership, corporation, association, organization, or other legal entity may maintain an action in the Superior Court for the judicial district wherein the defendant . . . conducts business . . . for declaratory and equitable relief . . . against any person, partnership, corporation, association, organization, or other legal entity . . . for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment, or destruction . . ."
(b)
To establish nuisance Pesty v. Cushman, 345, 355-56 (2002), says, with internal citations admitted
(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages.
This definition is prefaced by a quote from Prosser Keeton to the effect that "there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance,' " Torts (5th ed), § 86, page 816.
Pesty goes on to say that this "four factor analysis" has been applied "without distinction" to both public and private nuisance but agrees with Prosser that "the two causes of action are distinct." The court goes on to say that "Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety. This creates interesting standing issues since it requires that a person or entity claiming to be injured by a public nuisance must be injured in a way peculiar to themselves while exercising a right common to the general public, cf Restatement (2d) Torts § 821C, Dewing et al. v. Old Black Point Assoc., 19 Conn.Sup. 230 (1954), Truesdale v. Greenwich, 116 Conn. 426, 431 (1933).
III
Before turning to the facts of the case the court will review the standards for injunctive relief. If, as Prosser says, the law of nuisance is a jungle it should also be noted that the jungle substantially thickens almost to the point of impenetrability when the appropriate standards of injunctive relief are overlaid with a § 22a-16 action coupled with one lying in public nuisance. See generally Connecticut Environmental Protection Act, Vol. 15 Conn. Practice Series, Sherwood and Brooks, §§ 10:7, 10:8, pp. 234-37.
(a)
The universe in which § 22a-16 injunctive relief may be sought can be divided into two broad spheres. One situation is where parties' activities are conducted in alleged violation of a zoning authority's or town commission's regulations, cf. Conservation Commission v. Price, 193 Conn. 414 (1984), where town's conservation commission sought injunctive relief for a violation of Inland Wetlands and Watercourse Act because the defendant conducted a regulated activity in a regulated area without first obtaining a permit in violation of the town's regulation which were authorized by § 22a-42 of the act. In that case a temporary injunction was granted and after a trial the trial court granted a permanent injunction.
The reasoning in Price would seem to apply to a § 22a-16 request for injunctive relief and the important point of that case on the issue of the appropriate standards for injunctive relief in one of these environmental cases is that the Price court held an injunction for violation of the statutorily authorized regulations did not require proof of irreparable harm and lack of an adequate remedy at law, id., p. 429. The court relied on the reasoning of Crabtree v. Van Hise, 39 Conn.Sup. 338 (1983), and Johnson v. Murzyn, 1 Conn.App. 176 (1984). Crabtree said at page 337:
Cases from other jurisdictions have held that where a statute authorizes a municipality or public entity to seek an injunction in order to enforce compliance with a local zoning ordinance but says nothing about the injury caused, the municipality is not required to show irreparable harm or the unavailability of an adequate remedy at law before obtaining an injunction; rather all that must be shown is a violation of the ordinance.
(Emphasis by this court.)
Johnson at 1 Conn.App. page 337 similarly said:
Furthermore, imposing upon a zoning enforcement official the threshold burdens normally incident to the seeking of injunctive relief, i.e., proof of irreparable harm and that the plaintiff has no adequate legal remedy, would seriously undermine the official's power to enforce the zoning regulations.
(Emphasis by this court).
What the court was saying is that the absence of a need to show irreparable harm really enforces the legislature's will; again quoting from Crabtree the Price court says: "enactment of the statute (here CEPA) by implication assumes that no adequate alternative remedy exists and that the injury was irreparable, that is, the legislation was needed or else it would not have been enacted," id. at 193 Conn. p. 429.
The actual ambit of the just referenced statement can have a very broad meaning. For example the language of § 22a-16 in the CEPA statute is very wide ranging. That statute provides that a variety of people and entities can "maintain an action . . . for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . ." And in Waterbury v. Washington, 260 Conn. 506 (2002) at page 559 at footnote 33, lists several environmental statutes and then says
we infer a legislative purpose that those other enactments are to be read together with CEPA, and that, when they apply to the conduct in questioned in an independent action under CEPA, they give substantive content to the meaning of the word "unreasonable" in the context of such an independent action.
Reading Crabtree, Price, § 22a-16 itself and Waterbury v. Washington together does all of this mean in any action for injunctive relief under § 22a-16 irreparable harm need not be shown? The answer to this is yes, but only when the injunctive relief sought is based on a claim of violation of a regulatory scheme aimed at the activity or a detailed statutory scheme controlling the activity. But this is not the only universe in which relief can be sought under § 22a-16.
Thus, in Waterbury v. Washington, at 260 Conn. page 557 the court says
when there is an environmental legislative and regulatory scheme in place that specifically governs the conduct that the plaintiff claims constitutes an unreasonable impairment under CEPA whether that conduct is reasonable under CEPA will depend on whether it complies with that scheme.
(Emphasis by this court.) In other words the act the court was analyzing in Waterbury v. Washington under the aegis of CEPA was the rather detailed Minimum Flow Statute, §§ 26-141(a) et seq.; see the detailed provisions of that act in court's discussion at 260 Conn. 504-09. The discussion in that case posits the existence of a regulatory scheme or perhaps a detailed prescriptive statutory enactment specifically addressed to the criticized conduct — then the trial court determines unreasonableness by examining whether or not the scheme has been complied with by the defendant.
But given the broad language of § 22a-16 and the protective policy of CEPA it cannot be said that in the absence of such a regulatory scheme or a statute as just described action cannot be taken to protect the environment. How else to explain the language of § 22a-20 which in relevant part says; "Nothing herein shall prevent the maintenance of an action, as provided in (CEPA) to protect the rights recognized herein, where existing administrative and regulatory procedures are found to by the court to be inadequate for the protection of the rights (that is the rights protected by CEPA). Apart from whether that language conflicts with the holdings in Waterbury v. Washington as Sherwood Brooks suggest at § 10:15, pp. 244-45 at least it suggests there exists another universe of injunctive protection for our environment — areas not covered by a specific regulatory scheme or controlled by a detailed statutory enactment. If the language of § 22a-20 does not have at least this meaning it may not have any meaning at all.
But the point of all this for the analysis of the question of the proper standard of injunctive relief is that in cases where certain conduct is claimed to pose a threat to the environment or the potential thereof but where the conduct is (1) not subject of specific regulation — including regulations as to how the threat is to be ameliorated or (2) not subject to a detailed statutory scheme zeroing in the conduct, such conduct is a proper subject of § 22a-16 equitable relief but perhaps irreparable harm or the threat thereof must be shown because the reasoning of Price, Crabtree and Johnson do not apply. Deference is not required to a legislative decision which under statutes or regulations authorized by statute is not specifically aimed at the actions or failures to act which may pose a threat to the environment in any particular case.
However, even if in situations where irreparable harm need not be shown under CEPA or even positing that it need not be shown in any request for injunctive relief under the act, the resulting standard does not dictate that such relief must be granted automatically. In Price itself at 193 Conn. p. 430 the court said after holding irreparable harm need not be found:
We point out, however that "the grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a (trial judge) . . . is not mechanically obligated to grant an injunction for every violation of law . . . Put another way, we do not view the statutory grant of jurisdiction as destroying the discretion of a trial court in every case under his act.
Referencing § 8-12 of the General Statutes dealing with the authority of zoning officials to prevent, correct or abate any building altered or converted in such a way as to violate Chapter 124 or any regulation passed under authority thereof the court in Gelinas v. West Hartford, 225 Conn. 575 (1993), said at page 588
In seeking an injunction pursuant to § 8-12, the town is relieved of the normal burden of proving irreparable harm and the lack of an adequate remedy at law because § 8-12 by implication assumes that no adequate alternative remedy exists and that the injury was irreparable. Conservation Commission v. Price, 193 Conn. 414, 429 (1984). The town need prove only that the statutes or ordinances were violated. Id. The proof of violations does not, however, deprive the court of discretion and does not obligate the court mechanically to grant the requested injunction for every violation. Id., 430. Although this court will generally refrain from interfering with a trial court's exercise of discretion; State v. Martin, 201 Conn. 74, 88; discretion is to be exercised "in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice." (Internal quotation marks omitted.) Hammerberg v. Leinert, 132 Conn. 596, 604 (1946).
In another § 8-12 enforcement case where the court said a zoning enforcement officer need not show irreparable harm or lack of an adequate remedy at law if a violation of an ordinance was claimed the court said, actual granting of the injunction "must be compatible with the equities of the case" (and) "rests within the trial court's sound discretion," Johnson v. Murzyn, 1 Conn.App. 176, 183 (1984). The court went on to say: "Those equities should take into account the gravity and willfulness of the violation, as well as the potential harm to the defendants." Id. This decision was authored by Justice Borden who also wrote the majority opinion in Waterbury v. Washington. Also see Dupuis v. Submarine Base Credit Union, 170 Conn. 344, 456 (1976), cf. Crabtree v. Coyle, 19 Conn.App. 208, 211 (1989), and Gelinas v. West Hartford at 225 Conn. page 596, quoting the same language just noted from Johnson v. Murzyn. Also see Vol. 15 of Connecticut Practice Series, Sherwood and Brooks, § 10:7, pp. 235-36.
It should be noted that in Stamford v. Kovac, 29 Conn.App. 105 (1992), reversed on other grounds in 228 Conn. 95 (1993), an application for temporary injunction was brought by the city under the Inland Wetlands and Watercourses Act. Attached to the pleadings was a certification statement alleging that unless a temporary injunction were to be granted to correct illegal filling of a pond irreparable harm would be done to the wetlands, pond and environment. In footnote 1 at pp. 106-07, the court noted, citing Conservation Commission v. Price, irreparable harm need not be proven when it is alleged that a statute has been violated. Thus it would appear that this court's discussion of appropriate applicable standards for injunctive relief would apply both to temporary and permanent injunctions; but see Sherwood and Brooks at § 10:8, pages 236-37.
IV
The court will now turn to the facts brought over several days of hearings.
What this court believes it must do is to determine whether harm is being inflicted on the environment, if so whether the harm so inflicted mandates injunctive relief in light of all the equities involved in the case and in the light of the fact that the local zoning and planning agency apparently has the matter before it. Also the issue of potential harm to the environment must be examined. The court will now review the hearing discussing the testimony and exhibits presented by the plaintiff, and that presented by the defendants.
A.
Susan Gomez is the Planning and Zoning Administrative Assistant for the Town of Guilford. She was called by the defendants and she testified on June 16, 2006 and said the defendants had filed a site plan application, a special permit application and a coastal management application with various addenda with the Planning and Zoning Commission (PZ). They had also filed with the Inland Wetlands Commission. The PZ "will wait for the Inland Wetlands Commission to complete their review of the application before Planning and Zoning can go forward." Ms. Gomez said the inland wetlands application "has stopped the Planning Zoning clocks until wetlands is finished." The defendant business is in an industrial zone. As of June 16th the plaintiff had not intervened before the PZ.
Upon cross examination it was established that various residential zones surrounded the subject site. The testimony was somewhat confusing on this point but Ms. Gomez seemed to say that after Inland Wetlands completed its review the PZ would take at least two months before completing action on the two permits before it.
It should be noted, and it will be discussed more fully later, that the Guilford Inland Wetlands Commission completed action on the application before it on August 9, 2006 and made various recommendations to the Planning and Zoning Commission which are referenced in a letter sent to counsel for the defendants dated August 17, 2006.
It was then brought out on cross examination that enforcement actions or orders have been pending against the subject site from August 30 and December 27, 2004. The obvious was also emphasized to the effect that there was no guarantee that the PZ would grant the permits or that the permits would be denied.
Mark Young then testified for the defendants. He is a registered land surveyor employed by Waldo and Associates and did work on the applications before Inland Wetlands and PZ. He very generally testified that he was present at an Inland Wetlands hearing, testifying himself.
As to the special permit application before Inland Wetlands he said the application dealt with how the proposal addressed truck washing on the site and storm water management and asphalt on the site.
On cross examination he was asked what activities had "possible adverse impacts." He answered by saying the primary concerns were "storm water runoff" and containment of "soil piles" migrating into the wetlands or offsite. Another concern was truck washing and the manner in which contamination from this activity was to be avoided.
Mr. Young noted that the State Department of Environmental Protection has instituted a storm water management program requiring towns and individuals to address storm water runoff associated with construction projects. But Arrow Paving is clearly not a construction project.
As to truck washing Young was asked about contaminants from this procedure which would be of concern, he said he was not an environmental specialist but said as an individual "dirt, some grease, road salt maybe some detergent if they used detergent in the wash." The basis for this "individual" speculation was, however, not made clear — certainly it was not based on an examination of any truck washing that occurred on this site. But he did say in the plan the defendants submitted the kinds of things to capture "those materials" were shown. He later conceded there presently was not a truck washing facility on the site or truck washing controls which could take care of runoff from this procedure — the nature of such "controls" were never inquired into upon cross examination.
Mr. Young on cross further testified a portion of the subject site is composed of salt marsh. There are stockpiles on the site not any closer than 200 feet from the salt marsh. No storm water contaminant currently exists for the site "but the natural grading of the site does protect the marsh to some extent." The downhill grading for Arrow Paving is offsite "but eventually it goes to the salt marsh." Interestingly when asked by plaintiff's counsel what the word stockpiles meant Young said piles of "dirt, broken up pavement, ground up pavement." At another point he said some of the pavement had been ground up "to a finer condition, smaller particles" — he was never asked what the actual size of these particles was. He also said there were some small piles of "dirt, rocks, boulders." He did not know where any of these materials actually came from. From the court's perspective Mr. Young would be likely to have first-hand knowledge of the foregoing since he was hired by the defendants and obviously had access to their property.
Young strikes the court as a candid witness which became apparent when questioned about dust emissions and permits sought with respect to dealing with dust emissions. He said "dust is not a major concern" but Arrow Paving does try to handle that problem arising when chunks of asphalt are ground up. He said the process can produce dust but "they have a sprinkling system that sprinkles water on it which controls all the dust." He candidly admitted, however, that he only observed the process from a couple of hundred feet and had not observed it closely. He said Arrow Paving is applying for the permits because it was requested to do so by the Zoning Enforcement Officer.
He had discussions with the enforcement staff and he was aware of violation notices; he himself had been working on the applications for about a year.
He was also referred to an application made to request approval for storing paving and dirt for recycling as per the zoning code. He was asked if the site is currently in compliance with the code. He eventually answered that he does not make that determination — it is made by the zoning enforcement officer.
As noted the court will later discuss the Inland Wetlands August 9th decision in this matter, but Young did indicate he had a conversation with the zoning enforcement officer about her concern with the inadvertent movement of material into the tidal wetlands by machinery over a bank at the edge of the usable area of the site. The bank is six feet high the bottom is the wetland.
At the very end of the cross examination he appeared to change his testimony about the distance of the piles from the embankment saying it could be twenty feet, fifty feet, they move as operations go Young said, sometimes the piles are one hundred feet — "I don't know."
Mr. Sailer was then called by plaintiff's counsel as its expert witness. He is the president of an environmental consulting firm, he has testified in several state courts and in federal court. Mr. Sailer is a state-licensed environmental professional and a certified hazardous materials manager with twenty-seven years of experience, six of them being with the New Jersey Department of Environmental Protection. Apparently referring to federal practice he said he had been admitted as an expert in site remediation solid and hazardous waste and materials management.
Mr. Sailer was retained by the plaintiff and lives down the street from the subject site driving by it several times a day. Mr. Sailer described activities he observed on the site and from his observations and from the application of Arrow Paving the asphalt stockpiling and milling operation. Since Arrow Paving took over the site he observed more intense activity and "observed them bulldozing what appeared to have been retaining berms around the property and probably were constructed to keep storm water on site and perhaps materials on site and away from the tidal wetlands."
Sailer went on to say that according to FEMA regulations that the subject site is in a flood zone. The testimony is not completely clear to the court but he also seemed to say that according to FEMA maps there is a one percent probability that the property will be flooded at any given time in a hundred-year storm. Interestingly he did not review the FEMA panels for the site but "relied on what the applicant had plotted on the drawing" — i.e., the site plan. His review of the map of the site indicates to him that in a category one or two hurricane the entire site — used and unused portion — would be inundated by flood waters. A category one is "seventy-four to a hundred and something." He added that hazardous materials are usually not seen in residential areas, in a flood an industrial site stocking "finely ground asphalt materials" would pose a greater threat of migration of these materials than could come from a residential property. Wind or flood waters could cause such migration. Mr. Sailer never indicated the size of the particles that would be subject to the migration risks he was discussing and no tables, meteorological studies, or historical information was provided as to the actual frequency or expectability of such storms in the area of eastern southern Connecticut.
He then said on one occasion he observed asphalt grindings migrating in windy conditions of 15 to 20 miles per hour. He personally never examined the pile from whose top the material came and it is unclear how he could say that the material he saw was milled asphalt. At one point in his testimony Mr. Sailer said "from (his) observations and from the (defendant's) application Arrow Paving essentially peels off asphalt in the process of repaving driveways and parking lots. They bring that material back to their yard in large chunks with some of the underlying soil. They then stockpile that material." At a certain point they bring in milling equipment and "process the asphalt into smaller particle sizes" (emphasis by this court). There is no indication that the milling process would remove soil which common sense dictates could be a source of dust. Sailer said he had seen "dust" on other occasions blowing from the site to Whitfield Street but that one day was pretty extreme. That day kids were riding ATVs on top of the materials and the dust was blowing off-site.
Later in his testimony Mr. Sailer sought to be more specific as to the risks posed by the migration of asphalt. Asphalt contains polycyclic aromatic hydrocarbons — they are suspected of being carcinogens and are released when the asphalt is milled which reduces the asphalt from one inch pieces to powder. The fine powder presents the risk because an inhalation problem is presented. There are no storm water controls so there is also a risk of migration to the wetlands. He admitted to not examining the piles but he saw dust blow off the piles and he said he watched for a long time what goes on there and "sometimes" you will see a layer of soil but in the piles he sees from the road it looks to be primarily asphalt. In his direct testimony there was no indication as to the distance from his point of observation on the road and the dust dispensing piles. Upon cross Mr. Sailer did say he had been 25 to 30 feet from the piles when he made his observations.
He testified that steps can be taken to prevent dispersal of these risk-bearing materials — tarps can be used and the piles can be misted but water runoff would have to be looked into apparently if this process is used.
The piles can be protected from a tidal surge at least temporarily by placing concrete blocks around the piles. A storm surge would come once every 100 years but there is no way of telling when in the 100 years the surge would come. In fact it is for the town to review but he was not "even sure the activity could exist here," the town has discretion as to the placement of fill within the 100-year flood plain. Storm water controls would have to be installed which basically would direct water runoff into a storm water management system. Sailer went on to say that "there's a whole number of different site specific management techniques that could be used." These "techniques were not described" and it was not explained whether these "techniques," according to Sailer, could allay the concerns of the applicant's own engineer, Mark Young, who testified before Inland Wetlands that because of water levels storm water controls could not be installed. In any event Sailer testified no controls have been installed since Arrow began its operations.
A photo of the site was introduced which was taken on July 7, 2005, the southern corner of the site had a large pile of unprocessed asphalt and on the western corner was a pile of milled asphalt. He said the southern pile is probably twenty feet from the tidal wetlands. There is then testimony which apparently though not clearly refers to other piles which are referred to as "soil piles" without any protection and located at the top of a slope adjacent to the tidal wetlands; it is also referred to as a "pile of soil." In 2004 he saw a "brown pile of material" and a front-end loader pushing this "fill material" out over the slope towards the wetlands. Mr. Sailer said there was a danger of soil sedimentation migrating to the wetlands because of runoff from piles of soil immediately adjacent to the wetlands.
This sedimentation concern proved to be somewhat vague — the problem presented necessitated "getting into federal wetlands law which is incredibly complicated" (but not further described beyond saying it could be argued that any filling of a wetland would need an Army Corps permit — the argument was not elucidated. In response to an inquiry as to whether any soil piles are permitted the only answer seemed to be that depends on the operation's size, you might not even find a specific regulation.
Mr. Sailer commented on the truck washing issue. He studied the defendants' application which indicated they proposed that in the immediate short run Arrow Paving intended to wash their trucks at a Milford facility but planned eventually to install a collection system to prevent water from migrating. The application was amended to provide for truck washing at an inside facility on the property.
On one occasion, May 6, 2006, Sailer observed that there was a violation of the promise not to engage in power washing while the application was pending — he took a picture of power washing occurring on that date. The promise was made to Inland Wetlands. Mr. Sailer said the State Department of Environmental Protection has a "very stringent" policy regarding truck washing; the danger is having hydrocarbons come off the trucks. But then he said "It's a gray area in which the DEP allows it." The problem here (apparently) is that truck washing presents a danger because petroleum hydrocarbons are on the saddle tanks, and trucks hauling gasoline may have been cleaned with gasoline, the inside of the truck bed is lubricated so the asphalt will not stick. Sailer then said the applicant itself conceded that it was a regulated activity (truck washing) and would not do it. He also observed, apparently on May 6, 2006 the saddle tanks being washed. He said in his "experience" it is "a reasonable assumption that the outwash from the power washing of industrial vehicles contains hazardous materials." The vehicles he saw being power washed on May 6th were on a pervious surface and therefore some of the water from the truck washing operation would run off — here the runoff would be toward the tidal wetlands — "there's no other route for it to go."
Upon cross examination defense counsel brought out that Mr. Sailer had no training to delineate inland or tidal wetlands. Also he testified he last saw ATVs or quads on the site in March 2006 and had not observed truck washing since May 6, 2006 yet he goes by the property every day including the weekends. Sailer said he was not a wetlands scientist or a civil engineer, he is also not a meteorologist or toxicologist.
Upon cross examination Sailer seemed to admit not every time someone digs up a driveway it would produce contaminated material but commercial lots posed more of a risk — there could have been a dry cleaner there. He admitted the DEP encouraged recycling highway pavement. A recycling program fact sheet was presented to Sailer, prepared by the DEP, which says asphalt, concrete, and other inert material can be considered clean fill. When pressed whether asphalt fragments are ipso facto contaminated he said millings not fragments but then he said millings are not necessarily contaminated — "it poses an environmental risk and depending on how it is used and managed can be a problem." He took no samples, however, from the milled pile. Also he admitted to not having any specific knowledge of the particle size of the Arrow Paving millings, all he saw was dust coming off the pile but he could not say how much dust would be generated given particle size or its likelihood of transport from the pile given particle size or how far any particles would travel.
As to the water runoff from these asphalt piles, Sailer when pressed could apparently not say whether asphalt was being carried.
Over several years he has seen dust from the asphalt piles several times and he observed no dust emissions during the grinding process because the one time he observed it, it was raining.
At one point Mr. Sailer conceded current Arrow Paving operations are not helping his property values so they were adverse to him personally. He also never contacted the owners or operators of the site about his concerns nor did he request permission to go on to the site.
John Woods was then called to testify by the plaintiff. He lives 150 yards from Arrow Paving and at the time of the hearing had lived at that home for four years. He is not a member of the Committee to Save Guilford Shoreline.
He testified that on multiple occasions he has seen clouds of dust and dirt blowing in the air around the site and leaving the site blowing toward his house. He has seen this a couple of dozen times. Specific occasions were when a trench was being done on the property, a payloader was loading debris into a truck and ATV vehicles were riding up and down the piles of debris.
He observed black dust which he did not collect, on his deck two or three days after a milling operation in late March or early April. He only observed this once. Mr. MacLellan who owns the property and is an employee of Arrow Paving dropped by his home in May 2006 and said he would try to control dust by spraying.
Barbara Nugent was also called by the plaintiff. She is familiar with activities on the site because she walks her dogs every day, sometimes twice a day. She lives three lots from the site and has lived there since 1972. Dust comes from the site, it varies, not every day, it depends on wind conditions, sometimes it is light but it was "horrendous" the day the ATVs were racing on the weekends. When the wind blows the dust you would be affected if you walked by the site. She has seen the dust conditions a dozen times over the years if the ATV incidents and trench digging are subtracted out six or seven times, in the last year. At one point she said she does not see dust when there is no activity on the piles.
On cross examination Mrs. Nugent admitted the last time she saw dust was in the spring in March or April (she testified June 27, 2006.)
Charles Magby also testified for the plaintiff. He is the co-founder and current leader of the plaintiff organization. He mentioned that his group had intervened in proceedings before Inland Wetlands.
His organization began in 2004 to have a problem with Arrow Paving and reported what they saw on the site to the zoning enforcement officer of the town. The town did nothing and finally the committee went to the Board of Selectmen — "finally" notices of violation and cease and desist orders were repeatedly issued. The Board has refused to order that the cease and desist orders be complied with by Arrow Paving. But his claim is that they were ignored. The orders were issued starting in 2004.
The town has taken no steps to enforce its orders — the town has the practice of having people go through an application process. The Enforcement Officer wanted to work with the applicant. Mr. Magby said an application was filed before the zoning commission then withdrawn; there is no application pending now according to Magby. Two members of the Inland Wetlands Commission are former members of the plaintiff Committee.
Regina Ried is the Zoning Enforcement Officer and the Inland Wetlands Enforcement Officer. The commission hired its own expert and also asked Arrow to bear the expense of some testing which they agreed to do for the purpose apparently of whether there were inland wetlands soils on the boundaries of the property. No environmental or hazardous material testing was done by Inland Wetlands to Magby's knowledge.
On cross Magby said if his organization's and expert's recommendations were accepted by Inland Wetlands or PZ, the problem would go away if all conditions were met.
On redirect Mr. Magby said if Arrow Paving's complained-of activities have been curtailed it is only because they are under scrutiny. He refers to the fact that earlier he had testified if the town issued permits the problem with Arrow would go away but on redirect he said if the permits were violated the town would, from past experience, do nothing.
He reviewed, in relation to the allegations of the complaint various ongoing violations the plaintiff claims to be present on the site with reference to notices sent by Ms. Ried regarding removal of stockpiled materials, deposit of material without a permit in violation of the town zoning code.
Robert Russo. After the plaintiff rested the defendant called Robert Russo. He is a soil and environmental scientist, he is certified soil scientist and has extensive college and graduate studies background in these areas. He was retained by Arrow Paving in May 2006. Along with the Inland Wetlands Commission he agreed that there was no inland wetlands on the site and he saw no recent filling of tidal wetlands, he routinely investigates tidal wetlands and has been a soil scientist for eight years. Any fill on the tidal wetlands has not occurred in the last four years, vegetation borders the area with trees twenty to thirty years old and any fill does not contain natural soil.
He examined stockpiles on the property some containing large chunks of asphalt and others containing a range of pieces from sand-like particles to fingernail-size particles to a couple of large chunks.
He also observed runoff from piles gathered in puddles and saw no petroleum sheen which would indicate that oil or petroleum was coming off the piles.
On cross Mr. Russo said he did not conduct any testing on runoff from the piles nor did he notice barriers around the piles to slow down runoff or remove particles from it. There were concrete blocks around one of the piles.
The piles are on a flat plateau that runs to a steep slope which leads to the tidal wetlands that are flat. There were no covers on the piles to prevent rain infiltration.
When rainwater hits the piles the waterflow will most likely run toward the tidal wetlands.
Mr. Russo was examined about DEP regulations concerning storm water runoff and possible particulate matter that might be found in runoff and be harmful to the wetlands. He stated there are easily employable methods to control waterborne transport of materials off-site — in addition to previously mentioned control devices he referred to wood chip berms, vegetated swales, silt fence barriers, the vegetation fronting the tidal wetlands presently would serve a filtering purpose.
Stanley Dynia was then called by Arrow Paving. He works for GZA Geo Environmental, he is a state licensed environmental professional, and a certified soil scientist. He was contacted to do work on this site by the Town of Guilford for the Inland Wetlands Commission. He found no inland wetlands on the site.
On cross Mr. Dynia was referred to the DEP storm water manual which provides for a whole range of approaches for storm water management. GZA would make compliance recommendations to the Inland Wetlands Commission. The plan submitted did not meet all the criteria GZA thought important — there was a secondary treatment for storm water management, a vegetative strip but no so-called primary treatment, infiltration galleries that would receive storm water runoff. Storm water runoff issues are important as to actual quantity of water and as to water quality — the significance of that was not further explained.
Dynia said no direct impact on the environment have been observed but one of GS's recommendations would be that Arrow Paving secure a DEP general permit covering ground asphalt materials with qualifications — "assuming that it's applicable to the site."
Mr. Holzman was then called by Arrow Paving. He is an environmental engineer and specializes in air quality.
He went to the site and observed sand piles and piles of large chunks of asphalt which is later milled by a grinding operation which takes place several times a year. He observed a ground-up asphalt pile. Its contents ranged from particles an inch in size to smaller particles not as fine as a grain of sand but about 1/16th of an inch in size — not fine grained. It was not the type of material that would be windblown. He threw a handful into the air on a not particularly windy day and it fell to the ground almost immediately.
Wind erosion and fugitive emissions depend on the size of the particles, moisture and content and age of the pile. Activities in relation to the piles could cause emissions. Grinding operations were not observed by him on the site, he has seen them on the highway and saw little dust emission if any.
He felt the chance of emission from these milled piles is low because of particle size, moisture in the piles, little turnover of the piles which causes them to crust over — something which he observed. He performed a test developed by EPA to serve as a model for emissions and calculated that between 15 to 30 pounds of particulate a year would be fugitive emissions from a coal pile or an asphalt pile. For DEP purposes that would be a trivial amount. DEP sets standards on emissions that are geared to protecting the public health.
He also used an EPA model calculating emissions from loading and unloading operations. Even based on 100 tons of material being added or removed he only estimated 1/4 pound of fugitive particulate emissions. As to this test he did no studies as to how far this material would travel.
An EPA document or manual was introduced into evidence. This is the manual he used it to make calculations on particulate emissions from piles containing the asphalt millings. Holzman could not find any data on asphalt so he used the calculations as applied to coal piles — coal is mined then ground up. Holzman says that in his opinion is not as hard as the aggregate that goes into asphalt so it breaks into finer more uniform-sized material. Using the EPA manual and the foregoing assumptions he determined insignificant emissions would result from the milled asphalt piles in an amount the EPA does not consider significant even considering that particulate pollutants are involved.
The emissions from the actual grinding or crushing operations based on another EPA document and its method of calculation was testified about by Holzman. And he calculated that assuming Arrow Paving continued to use a water misting device the emissions would be two pounds per year.
His basic conclusion was that as to the asphalt milling pile "the material is just not fine enough to result in significant fugitive particulate emissions."
In response to questions from the court regarding testimony from witnesses for the plaintiff who testified as to seeing clouds of dust Mr. Holzman offered two suggestions. He said ATVs riding over the milled asphalt piles would break the crust on the surface and possibly by their action grind the material into a finer dust capable of causing dust emissions.
He also noted that at the Inland Wetlands hearing on June 27th (day before his testimony) witnesses spoke of a large gray cloud characterized as dust. Holzman said crushing machines emit a fine smoke during their operations — that is a "possible" explanation.
On cross counsel for the plaintiff brought out the fact that a simple sieve test could be used to determine particle size but he did not utilize that test which is set forth in the EPA guidance document. The point being made was that an actual field test was more reliable than abstract calculations based on the type of stockpile being examined to determine particle size which is related directly to emissions from the pile. Holzman said "It could be."
Holzman said he never did a sieve test on a coal pile but he did explain he had seen coal and asphalt piles implying that is why he felt it was appropriate to apply the calculations he made using coal piles as a reference point in determining emissions from milled asphalt piles.
A portion of the cross examination brought out the fact that absence of EPA regulation under the Clean Air Act for emissions below certain amounts per year, for example, is based on concerns for regions but does not preclude the fact that low emissions may have an adverse or nuisance value effect on local neighborhoods. Also absence of DEP regulations for certain stockpiles does not necessarily mean they might not be a nuisance to neighbors.
Also even otherwise unregulated stockpiles (because of their size) could be subject to DEP inspection and review if enough complaints were received. Orders on a milled asphalt stockpile could be issued with time tables for corrective action.
On cross Holzman also responded that the most cost effective method for controlling stockpile emissions was water spraying with use of calcium chloride apparently for retention of moisture. This would be true of fine particles but he said he did not observe fine particles in the pile from which he took samples to throw in the air to determine dispersal. Such a method comes with the caution that "you don't want to create a runoff situation." A pile can also be covered which is more practical in a pile sitting for several months and not requiring constant covering and uncovering.
The court specifically asked the witness whether a certain amount of expertise would be required to choose the most effective method of controlling stockpile emissions. He agreed but then said a lot of the methods — say wetting a roadway or a pile is pretty practical.
The cross examination then turned to more detail aspects and descriptions of the stockpiles. Mr. Holzman looked at picture he took of the stockpiles of pre-milled asphalt containing large chunks — 99 percent consisted of large chunks, he did not observe a lot of loose dirt.
He pointed out that when a milled asphalt load is taken from a pile it does not affect the whole surface of the pile in response to cross about his calculations to determine dust emissions. Mr. Holzman testified that the predominant winds in our state come from the west, southwest and he did not know where the grinding process took place in relation to the wind, the wind factor used in his calculations was 57 mph. A west, southwest wind would blow toward Whitfield Street and the tidal wetlands. The above referenced speed was the fastest mile per hour so that is why he believed his calculations were conservative.
Mr. Holzman said he did not use a very complex and refined analysis which is available to determine how far particles of certain sizes would travel. That type of testing would be more appropriate for example when examining large coal piles extending over acres.
On redirect and re-cross certain testimony of Mr. Holzman was clarified, at least for the court. One factor that makes asphalt particles less susceptible to wind dispersal is the content of the asphalt itself — called asphaltic cement. In the vernacular this makes asphalt "sticky" and would inhibit dispersal even if the grinding process of Arrow Paving resulted in finer particles than he examined the day Holzman did his testing.
To the query — why would Arrow Paving then have a need to have sprayers on the grinding machines? Mr. Holzman answered that if you are dealing with dry or fine material "grinding is a much more aggressive operation than just storing it, sitting in a pile."
Kevin MacLellan. Mr. MacLellan was then called by Arrow Paving. He is a co-owner of Arrow Paving. He explained how he acquires the asphalt that he brings back to the subject site.
Mr. MacLellan described the operations on the Whitfield Street site. He collects the asphalt he uses from driveways and parking lots. If he sees oil on the asphalt of a driveway he does not take it back to site, if he sees it on a parking lot he will do the grinding process at the lot itself — a large machine comes to the parking lot to grind the asphalt in place. On cross he said if a parking lot is large he would grind the material on site but if the lot was small he would bring the material back to Whitfield Street for the grinding process. The distance of the lots is also a factor.
The company avoids contaminated sites and does not take asphalt from gas stations for fear of contaminants.
He was asked about truck washing on the site. There is water available for that purpose. He has two renters on the property, one who owns two dump trucks. About two months before his June 28th testimony Regina Reid, the Wetlands Enforcement Officer called to complain that power washing was taking place at Arrow Paving. He called back to Whitfield and one of the renters admitted he had been power washing. He said he really did not know why there was a concern with power washing but immediately put locks on the water outlets. Because of the nature of his business one of the renters has the combination to the locks — he has to fill his tank before he leaves for work. MacLellan said in the past he power washed on site but he does not do that anymore.
A brother of one of the renters also rented a small bay, he had a dump truck and quads or ATVs. He was caught riding on the property and MacLellan asked him to leave, he left two weeks later at the end of the month. He apparently was concerned about reactions from neighbors.
Mr. MacLellan said he went to see a neighbor, Mr. Woods, and said if you have any complaints let me know. MacLellan related a part of the conversation. He said Woods told him "we don't like your operation there. You are, more or less, an eyesore. We would be very happy if you would build two houses on your property . . ." There was finally a hearsay objection but no motion to strike. The court observed that in any event perhaps it could come in to show bias or motive, to render the complete conversation. In any event the testimony came in without objection. MacLellan also said Mrs. Nugent or Mr. Magby never approached him concerning any complaints.
He then talked about the grinding operations and said he only does this two days in a business year. The last time he conducted this operation there was a "torrential rain" and no dust was produced. During the grinding process black smoke does come out of the grinder's diesel engine.
MacLellan referred to another incident in 2006 which he said resulted in the production of a great amount of dust. In order to bring in city water they were digging a trench on the subject site and the town requested the trench be backfilled with a very fine sand, bedding sand. The dust was so heavy he had two men go into the street to stop the traffic. MacLellan described this as a one-time incident and said he does not use bedding sand in his normal operations.
Arrow Paving was applying for permits to Inland Wetlands and the Zoning Commission at the date of MacLellan's testimony. He testified that the town had him pay for the expert Dynia in the amount of $7000 and he did his work for the town.
He applied to Planning Zoning because Ried said she needed an approved site plan for the property. Ried came to the property a couple of times — "It really didn't seem like a very big issue or very big push with her."
MacLellan then indicated what Inland Wetlands wanted him to do regarding runoff and the stockpiles and he said he was conferring with his consultants on their request.
Mr. MacLellan said he has received no orders from the DEP that he is aware of.
Mr. MacLellan then testified about what he felt the impact on his business would be if he was not able to use the grinding procedure. He said the impact on his business would be substantial because his competitors engage in these operations. If he had to purchase the materials, he would miss a lot of bids. He also said he employs six people.
On cross Mr. MacLellan said as to these stockpiles he would prefer a water system to a tarp and he could live with a water system. He agreed that ATVs should not be run on the piles and was not aware of any truck washing on his property between February and May 2006. He agreed power washing should not occur on the site.
He was cross examined about the notices of violation issued by Regina Ried. He never requested a hearing to contest the town's allegations, he just verbally questioned Ried. Ried in 2003 complained about a pile being too close to the wetlands and he "immediately hired an expert to move the pile back." In 2003 he was informed of the need for a site plan and in August 2004 he was given notice on that issue. MacLellan responded by saying he never got a set date or year to comply. Ried wrote his father in November 2004 complaining a site plan application had not been received, another August 2005 letter indicated the town's patience was running out. Mr. Waldo, their engineer, was hired by Arrow Paving probably in 2003 according to MacLellan.
The cross then explored why placing tarps on the piles would be such a difficult proposition. He said he would have to take a day off to find a large enough tarp and work hours would be consumed in having to take the tarp off and put it on. A crew would have to go back and forth to do this task. The rough or large chunk pile is not handled that often, the milled piles sometimes gone to several times a day.
As to the rough or large asphalt chunk pile it would not present great difficulty to tarp them over in the off season but Mr. MacLellan could not see the need for this since DEP regards them as clean fill.
MacLellan says one of his competitors is right on the water and the stockpiles are "three feet from the water. Maybe less." This competitor has a water system.
The court inquired of Mr. MacLellan as to whether or not he had the financial ability and capacity to comply with the representations of things he was willing to do made to Inland Wetlands. He answered that he did.
On redirect counsel brought out the fact that as far as truck washing is concerned his company is willing, if approved, to erect a building in which to do the truck washing.
Edward Sailer was permitted to testify a second time by the court and was recalled as a witness by counsel for the plaintiff.
Mr. Sailer testified that on August 14, 2006 at 5:55 p.m. he was driving home on Whitfield Street and "there was a large cloud of dust blowing across the road." A front-end loader was apparently trying to move the pile into a tighter formation. The pile observed by Sailer "was the chunk of asphalt with soil intermixed in it." The wind was not of hurricane force; Mr. Sailer said it was gusty and he estimated the wind at twenty-five miles per hour. The dust "must have" reached across Whitfield Street, Sailer said he drove though it.
Mr. Sailer testified that as a hazardous material manager he works with methods to control hazardous material dispersion — control methods include wetting down materials, use of tarps, or "other containment measures to stop wind erosion."
During his examination, the August 17th letter from Inland Wetlands was introduced as a plaintiff's exhibit. It contained recommendations by that commission to Planning and Zoning.
He referred to the second recommendation which Sailer said expressed concerns about the location of various buildings "and the location of an asphalt pile in close proximity to the edge" of the river estuary. The commission was concerned with a resulting negative impact on the estuary — the conditions just referred to will allow run-off of pollutants into the estuary during high tide and periods of heavy rainfall. Mr. Sailer said the commission thus shared his concerns with regard to storm water management at the site. Mr. Sailer agreed with recommendation to which said when the grinding down or milling of the asphalt occurs the piles should be misted — to him it seemed like a reasonable control.
When he viewed the site on August 14th he did not observe any water suppression techniques. His concern was that particulates from the piles can wash into storm water which will impact the tidal wetlands. Misting a pile is a relatively standard thing to do when you are managing "a pile like that."
On cross counsel for the defendant referred to the August 17th letter and its conclusion that there were no inland wetlands within 100 feet of the property.
Sailer agreed that as to the Inland Wetlands Commission's recommendation regarding storm water management, the Planning and Zoning Commission could address those concerns. In the last application to the PZ there were storm water proposals in that plan. Mr. Sailer agreed that PZ can impose conditions on any approval it grants to the defendants' application. PZ also reviews issue regarding the coast line through coastal area site plans. This is in its jurisdiction, i.e., tidal wetlands and not in that of Inland Wetlands.
At the end of his testimony defense counsel noted Sailer last testified in June, his present testimony being offered September 11th, the following then transpired
Q. And you observed the dust blowing on August 14th is that for us to infer that there has been no other times where you saw dust blowing?
A. That was a major incident that I observed. I don't recall and I don't spend my time everyday looking at the piles as I drive home but on August 14th it was significant enough that I took note and complained to the town about it.
The evidence then concluded.
V
The court will now concentrate on the specific issues of alleged environmental concern and try to marshall those aspects of the general factual discussion it just engaged in to those particular concerns.
As previously suggested and to set the discussion in context the court concludes Waterbury v. Washington recognized that a § 22a-16 action can be brought under allegations alleging unreasonable activity in an area not specifically covered by regulation or statutory schemes, but it apparently added to this common sense definition of the word activity that in fact violates some statutory or regulatory scheme apart from the fact that that scheme might also require the application for a permit.
What evidence do we have of unreasonable impairment either by way of violation of statute or regulation scheme or due to actions which are shown to unreasonably impair the environment?
Truck Washing:
Although Mr. MacLellan at one point said he did not know why there was a concern with power washing of his trucks, Arrow Paving would be hard put and in fairness, does not appear to take the position that power washing would not pose a threat to the environment. That would especially pose a problem here because power washing of trucks took place on a pervious surface and on this site the runoff goes to the tidal wetlands.
Arrow Paving has trucks or trucks come to its premises as part of its business operations and it has tenants who use trucks in their business.
Mr. Sailer, the plaintiff's witness, said the Department of Environmental Protection has a stringent policy as regards to truck washing — hydrocarbons are contained on the saddle tanks and the truck beds of some trucks. The defendant's own witness, Mr. Young, although conceding he was not an environmental specialist, said contaminants might very likely be on the trucks being washed. Insofar as the law of admissions operates in this sometimes arcane area, it is more to the point that in Arrow Paving's application to Inland Wetlands, they proposed a rather detailed plan for dealing with the truck washing problem and did so "to comply with DEP standards for treating waste water from washing." Short-term and long-term solutions were proposed which would involve inconvenience and expense to the defendant applicant. Upon receiving a complaint from the Inland Wetlands Enforcement Officer that truck washing had occurred, the tenant responsible was told to leave the site and locks were put on the site to prevent washing. On cross-examination, Mr. MacLellan said his company was willing to erect a building in order to be able to power wash in an environmentally safe way on site.
The fact is that there is no evidence of power washing on this site since May 6, 2006, although Mr. Sailer, the plaintiff's expert, rides by the site daily and Mrs. Nugent walks her dogs by the site often twice a day. The evidentiary aspect of this case took place on three days at the end of June and on September 11, 2006. No motion to reopen the evidence or other information has come to or been brought to the court's attention regarding truck washing. As to the defendant's business, it apparently closes down for several months in the winter but there is nothing in the record to indicate this is true of the tenants' businesses who also operate trucks. The point is, however, there is no indication of any truck washing on the site for the past ten months or to the middle of September which ended the evidentiary hearing.
Stockpiles: (Runoff)
There are two main types of stockpiles on this property. One type of pile is comprised of large chunks of asphalt. This asphalt is collected from driveways and small parking lots where Arrow Paving does its work and brought back to Whitfield Street. Another type of pile consists of milled asphalt. Machines called grinders are brought to the site to grind down the large chunks of asphalt. The asphalt is ground down to pieces from particles about an inch in size to about 1/16th of an inch in size. Mr. Holzman testified as to this and he also said the particles were not as fine as a grain of sand. Mr. Russo, the defendant's soil and environmental scientist said in the milled pile the particles ranged from the size of a fingernail to some sand-like particles.
The basic problem presented by either of these piles is storm water runoff. Inlands Wetlands found that as to Arrow Paving's application regarding stockpiling and storage of paving materials, "There are no inland wetlands within the Commission's 100 foot upland jurisdictional review area that will be impacted by the application . . ." The court has been presented with no evidence to contest this finding of the Inland Wetlands Commission made at its August 9, 2006 regular meeting.
But the court does conclude that there is a possibility of runoff into the salt marsh or tidal wetlands. Some of the piles have been placed quite close to the tidal wetlands. Interestingly, the Inland Wetlands Commission did make certain recommendations to Guilford Planning and Zoning regarding this problem as an addendum to its August 17, 2006 letter to counsel for Arrow Paving informing him of the Commission's findings and recommendations at the August 9th meeting. Those recommendations are as follows:
1. The plan submitted is not in sufficient detail to clearly and fully address storm water runoff into the tidal estuary of the West River;
2. The submitted plan will have a negative impact on the estuary because of the 60' x 184' foot building in addition to the three existing buildings and location of an asphalt pile in close proximity to the edge of the estuary of the river will allow runoff of pollutants into the estuary during times of high tide and high rainfall;
3. The applicant has not demonstrated how storm water carrying pollutants will be retained sufficiently to filter out the pollutants;
4. In addition, there is no plan to sufficiently retain and cool heated storm water that will accumulate after passing over the surface of the lot during times of high summer temperatures;
5. During testimony at the public hearing held July 17, 2006, the applicant's engineering firm stated there is not enough depth above the water table to put in a stormwater detention system, and the proposed stormwater plan is the best that can be done on the site; . . .
No details concerning or evidentiary support for these recommendations (but see 5) was presented.
It is also Mr. Sailer's testimony that according to FEMA regulations, this site is in a flood zone and that there is a 1% probability it will be flooded at any given time within a 100-year period. A category one or two hurricane would also flood the site. However, Mr. Sailer never indicated and neither does Inland Wetlands indicate in its recommendations, the size of the particles that would be subject to flood runoff or how far they would be carried for any particular length. Mr. Sailer is also not a meteorologist and no historical information was provided as to the actual frequency of any such storms in the eastern section of southern Connecticut, let alone the area of the site in question.
At the time of the hearing, storm water management consisted of concrete barriers around one of the piles. Mark Young worked on Arrow Paving's applications to Inland Wetlands and Planning and Zoning. Storm water management and prevention of migration from the piles through runoff was a concern. Mr. Sailer at least opined that storm water control may not even be effective at this site but then said storm water controls would have to be installed to direct water into a water management system and thus apparently away from the tidal wetlands. He said a variety of techniques could be used but as previously noted, never really described them. He did say concrete blocks could be placed around the piles to deal with tidal surge issues temporarily.
The defendant's expert, Russo was, not surprisingly, much more optimistic in the efficacy of runoff management; Russo, as indicated, mentioned several methods to achieve this.
Runoff and storm and tidal surges present a problem, however, only if there are contaminants which can be carried from the site to pollute the environment. The court agrees with the plaintiff that this does not mean regulatory authorities or private entities or citizens acting under the authority of § 22a-16 must wait until environmental harm has actually occurred before pursuing declaratory or injunctive relief. This would eviscerate the public policy behind the environmental laws. The whole point of prophylactic devices such as Guilford's requiring a site plan application when materials are stockpiled recognizes this principle.
Also, statements of our court underline the plaintiff's point made in its brief that "one need not wait until the activity has actually caused the harm, but injunctive relief may be granted where the evidence shows the activities complained of are reasonably likely to cause harm. Thus, in Lewis v. Planning and Zoning Commission, 275 Conn. 383, 393 (2005), the court said that to make a prima facie § 22a-16 case, it must be shown, for example, that a defendant 'has or is reasonably likely to pollute' . . ." (in a manner that is unreasonable). What else is the bearing of the statement in Water Resources Commission v. Conn. Sand and Stone Corp., 170 Conn. 27, 35 (1975).
An injunction is designed to deter, not to punish . . . A cessation of violations whether before or after institution of suit does not bar issuance of an injunction against further violations if there is a possibility of recurrence.
But the predicate of actual unreasonable damage to the environment or the possibility thereof must be shown if injunctive relief is to be granted. This has not been shown at least as to the presence of contaminants. Mr. Sailer did say asphalt contains a substance called polycyclic aromatic hydrocarbons (PAH). It is suspected of being a carcinogen and it is released when asphalt pieces are ground to powder. But Mr. Holzman actually studied the milled piles and testified there was nothing to indicate the presence of powder. The health risk occurs when the particles are volatized, but there is no evidence of this having occurred. The health risk was presented as one having to do with inhalation of the alleged powder substance — but what is the risk if the particles, not volatized, are just swept offsite due to runoff, a storm surge, or even a hurricane? No plaintiff expert or lay witness personally examined the piles or their contents. Suit was conmenced in May 2006 but the alleged problem, according to the plaintiff, began when Arrow Paving took over the property several years before and the intensity of activity on the site increased. But no bill in equity for example, was filed to secure inspection and testing of the piles, see Berger v. Cuomo, 230 Conn. 1, 5 (1994), and even after commencement of suit, no discovery was pursued along these lines which would clearly have been authorized by the broad language of P.B. § 13-2. These observations are further underlined by the fact that Mr. Russo could observe no oil sheen on puddles or water surrounding the piles. And Mr. MacLellan testified he avoids taking pavement from contaminated sites and from gas stations for fear of contaminants. If he sees oil on asphalt on driveway he does not take it back to Whitfield Street. If he sees oil on a parking lot, he testified, he would do the grinding on site and not on Whitfield Street. These assertions could have been readily impeached by experts actually examining the piles on the Whitfield property. This was not done and the court cannot engage in rank speculation.
Apart from the foregoing claimed or potential threats to the environment in fact or potentially as distinct from any failure to comply with a regulatory scheme it can also at least be argued that Guilford has a regulatory scheme set forth in its code aimed at protecting the environment. Section 273-66 says that there shall be no "deposit of any earth, loam, topsoil, sand, gravel, clay, stone, or other material . . . on any lot except pursuant to a special permit granted by the Commission. Several letters were sent to Arrow Paving prefaced with the following preface:
Violation of § 273-73. Site Plan approval, temporary storage containers, stock piling asphalt and other materials and rental of indoor and outdoor storage space without site plan approval.
Letters to this effect were sent from August 2004 through 2005 and have been marked as court exhibits. Some of the letters specifically order the stockpiles to be removed since, for example, as of the date of an August 15, 2005 letter states no site plan application had been received. That letter threatened the possibility of Superior Court injunctive relief, civil penalties, attorney fees or fines. A December 2005 letter said that unless a site plan application is filed by January 13, 2006 municipal fine proceedings would begin. The defendant does not contest that absent site plan approval stockpiles would violate the Guilford Zoning Code. Given the regulatory scheme established by Guilford and assuming it was established to protect the environment is this per se unreasonable impairment thereof in § 22a-16 terms? Or more to the point, is injunctive relief thereby warranted standing alone on the facts presented or despite the fact that a site plan application is now before the Guilford Zoning Commission?
Grinding Operation
Twice a year the defendant brings grinding machinery to the site to grind the large chunks of asphalt into its milled state so that it can be used in its paving work. This operation is alleged to produce dust and particularly asphalt particles. At the request of the Zoning Enforcement Officer a water spraying process is used to keep down these emissions. There was no evidence produced to indicate this process was not effective. In fact there was testimony to the effect that the process produces little or no dust, see testimony of Mark Young. At the Inland Wetlands hearing witnesses spoke of a large gray cloud produced by the grinding operation but Mr. Holzman said this could be produced by the smoke emissions from the grinding procedure itself. His testing using EPA models indicated that if a water misting device were used the dust emissions would be two pounds per year. Holzman said he had not observed grinding operations on the site himself but had observed asphalt grinding on the highways and saw little if any dust emission.
Interestingly the 8th recommendation of Inland Wetlands to Planning and Zoning says: "It is requested that when the asphalt piles are ground down a condition of approval be that the piles are misted during this process so dust does not carry into the wetlands" (emphasis by this court). But misting is already used apparently during the grinding operation.
Dust Emissions
Most of the testimony revolved around dust emissions from the property and the special risk posed by dust coming from the asphalt piles because of the fact that asphalt contains PAHs which is suspected of being a carcinogen. Mr. Woods lives in a home 150 yards from the site and has been there four years.
Mr. Woods said he has seen dust and dirt blowing from the site towards his home — he has seen it a couple of dozen times. It is also true that a trench was being dug in 2006 which apparently caused dirt emissions — Mr. MacLellan said the trench had to be backfilled with a very fine sand known as bedding sand. He admits this caused a great deal of dust to blow off of his site but it was a one-time occasion and he does not use this type of sand in his business. The court has previously mentioned the dust produced by ATVs being driven on the piles.
Also on one occasion in the spring of 2006, two or three days after a milling or grinding operation, Mr. Woods observed black dust on his deck. He did not collect any of the dust and there is no evidence of what the material consisted of or any clear evidence of where it came from.
Barbara Nugent walks her dogs every day by the subject site. Sometimes twice a day. She observed "horrendous" dust the day in March 2006 when ATVs were riding on the milled asphalt piles. She has seen dust from the site a dozen times. She last saw dust three or four months before her June 2006 testimony. She has not observed dust when there was no activity on the piles. She has lived at her present home since 1972 and it is three lots or about 100 yards from Arrow Paving.
Mr. Sailer lives 1/8 of a mile from the site and has lived there since 1999. He drives by Arrow Paving once and sometimes several times a day. Over the years he has observed dust coming from these piles several times — one time was when ATVs were riding over the milled piles. On one occasion he noticed dust coming from a pile when the wind was 15 to 20 mph. He never went on the site, he observed them from 25 to 30 feet. He never collected samples from the pile to determine particle size nor did he collect off-site dust samples.
Mr. Sailer is not a toxicologist or medical doctor. He did, however, testify that the danger of PAHs, present when in dust particles, is through inhalation — it goes into the blood stream and the lungs. Testimony came out that asphalt contains PAHs that attach themselves to other particulate matter. However, they are "inert" — whatever that specifically means, presumably a health risk — only when volatized. The latter process occurs when the PAHs are above "ambient" temperatures — "ambient" temperature is room temperature. The following then occurred. The court asked in the relevant part of a question
See I don't understand the mechanism that makes inhaled asphalt a contaminant if the powder is still not above an ambient temperature.(There was no evidence of volatization).
Mr. Sailer answered:
A. No. I think what happens is, as I understand the inhalation route of exposure to this material, you inhale it into your lungs and the PAHs are then absorbed into your body through your lungs, though your bloodstream. We're talking about nano sized particles here.
Webster's Third New International Dictionary describes "nano" as "one billionth part of (10-9) (nano second)"; the Random House Dictionary says "nano" means "specialized in certain measurements to mean 'one billionth.' " As noted, Holzman examined the milled asphalt piles and he said the particles in them ranged from an inch in size to about 1/16th of an inch but not as fine as a grain of sand. Mr. Russo said the particles ranged from the size of a fingernail to a grain of sand, however, neither description meets the "nano" on definition. But again no testimony was offered on the subject.
Interestingly the eight recommendations from Inland Wetlands to Planning and Zoning are mainly concerned with storm water management and runoff. In the sixth recommendation there is a cursory comment that the public is "raising concerns about dust" and as noted in the previous discussion of the grinding operation there was a recommendation that during that process misting be used "so dust does not carry into the wetland." There is no general recommendation that tarps be put over these piles or that they be regularly subjected to a misting process.
How does one make sense of all this or analyze it? When a trial court is the trier of fact, presumably it has a right and even responsibility to form opinions based on evidence which otherwise cannot be explained or reconciled without such opinions. This is at least true where expert knowledge is not required. The court has examined plaintiff's exhibits 1, 9, 10, and 11 and defendant's exhibit W. There are visible sand or soil piles on the site, there was also actual testimony that there were sand piles. The site itself apart from buildings, trucks and what appear to be asphalt piles is your basic sandy lot. Sand when dry is subject to be blown about on a windy day. Mr. Woods said he had seen dust blowing from the site a couple of dozen times over an approximately four-year period. Mrs. Nugent walks by the site at least once and sometimes twice a day. Except for an occasion on which she saw ATVs riding on a milled asphalt pile, the dust she saw came from the site without further specification.
When asphalt is removed in chunks from driveways and small parking lots soil attaches to it. The large chunk asphalt piles from the picture submitted do seem to be composed primarily of just that asphalt chunks. But common sense would seem to indicate that some soil would be included in this pile, attached to the asphalt. Plaintiff's exhibit one shows a payloader operating near a pile of asphalt chunks — what appears to be brown sand is blowing in the wind, the pile itself appears to contain brown sand. These piles of asphalt, milled or not sit themselves in a large sandy lot — one could presume also that sand from the floor of the lot would blow towards and into the piles on a windy day, then that sand could be seen to be blowing from the pile. Is that too fanciful or speculative — not, the court believes, based on the evidence presented or the complete absence by both sides of any testing of offsite dust or any dust emissions from the piles.
The only mention of black dust, presumably asphalt, being carried offsite was Mr. Wood's testimony that he observed black dust on his deck two or three days after a milling or grinding operation. He only observed this phenomenon once in the four years of Arrow Paving operations, the material was not collected for analysis. Mrs. Nugent never testified that the dust she observed was black dust or anything more than storm-borne dirt to use the vernacular and this was so even on the occasion when ATVs were riding over the milled piles. Mr. Sailer also never defined or described the dust in a way to add support to Mr. Woods's observations.
It is also true that Mr. Holzman mentioned two factors that would tend to limit dispersal of asphalt containing dust or any type of dust from these piles (1) a crust would develop over milled asphalt (2) asphalt contains as a component which acts as a binder.
VI CT Page 9185
One final issue must be addressed before the court decides whether injunctive relief is appropriate in this case. The defendant argues that "injunctive relief is inequitable because it could interfere with administrative agencies that are currently considering all of (the plaintiff's) claims and the equities favor defendants continuing their business." The defendant's argument on the equities may prove correct but the way the argument is posed requires the court to address the issue of whether the fact that an administrative agency is addressing an issue, even if completely by way of ultimate relief, dictates that the court should refrain from acting under CEPA.
It is clear under Waterbury v. Washington, 260 Conn. pages 525 et seq., that under § 22a-16 a party can go directly to Superior Court to advance claims that are alleged to protect the environment without the need to resort to an administrative agency. As the court noted, this is necessarily implied by § 22a-18 which does not mandate but merely gives the court discretion to remand a matter before it to an administrative agency.
The court discussed the doctrine of primary jurisdiction in the context of the ordinary case where a matter is first brought to the court and then the court must decide in its discretion whether, given its collaborative relationship with administrative agencies, it should remand the case to the agency while still retaining jurisdiction, id., page 574. Even at that, the doctrine is not inflexible. The court cited United States v. Western Pacific R. Co., 352 U.S. 59, 64 (1956), which said that: "No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation."
This case is somewhat of a variation on the foregoing theme since resort was first had to administrative agencies and the matter is still pending before the Planning and Zoning Commission. But nothing in the statutory scheme requires that in such a situation the court cannot issue temporary injunctive relief. Section 22a-20 explicitly says that CEPA "shall be supplementary to existing administrative and regulatory procedures provided by law and in any actions maintained under said sections. The court may remand the parties to such procedures. Nothing in this section shall prevent the granting of interim equitable relief where required and for so long as is necessary to protect the rights recognized herein." It would eviscerate the environmental laws if there were some bar to the issuance of injunctive relief where an administrative agency has been the first entity to involve itself in the environmental issues raised.
In fact the general law seems to be that: "The pendency of proceedings before an administrative agency does not preclude injunctive relief with respect to the question or issue before the agency where under the statute the jurisdiction of the agency over the question is not exclusive," 73 CJS § 45, page 484, "Public Administrative Law and Procedure," citing Textile Workers of America v. Amazon Cotton Mill Co., 76 F.Sup. 159 (DCNC, 1998), also see 76 F.Sup. 165. The same CJS section notes that when a matter is pending before an agency, the court can grant an injunction "to assist the agency in preserving the status quo until the administrative question before the agency has been determined by it," citing Harwinton Drilling Eng. Co. v. PUCA, 188 Conn. 90 (1982). Harwinton is interesting in that it said in a case where the matter was held to be rightfully dismissed because of the bypass of appeal procedure under the Uniform Administrative Procedure Act, an independent action could still be initiated where there is a showing of "immediate and irreparable harm," id. page 98, i.e., the exhaustion doctrine does not even apply.
The court in Waterbury v. Washington also referred to the legislative history; one legislator was quoted as saying CEPA was necessary because it may well prod many of our state agencies charged with protection of the environment . . . into a more thorough and responsive carrying out of the legislative programs." It would be a surprising rejection of this policy if there were some judicially constructed bar, not evident in statutory language, which would prohibit injunctive relief merely because a matter is before an administrative agency — leaving to the good officers of the latter, which the legislative thought had need of prodding, to decide whether to seek injunctive relief.
VII
The question becomes what if any injunctive relief should be granted under § 22a-16? The court agrees with two premises set forth in the plaintiff's brief. One is that "one need not wait until the activity has actually caused the harm . . . injunctive relief may be granted where the evidence shows that the activities complained of are reasonably likely to cause harm." Lewis v. Planning Zoning Commission, 275 Conn. 383, 393 (2005). The court also agrees that even minimal environmental damage should be avoided.
However, the court cannot ignore the fact that another agency presently has the matter before it. Criticism of that agency were aired by the plaintiff's witnesses. A historical record of failure to enforce environmental protections was mentioned without reference to specific case histories. But it was also argued that in this very case there has been only lackadaisical enforcement of town regulations meant to protect the environment and this has been going on in this way for at least two years. Let us look at the actual results of the agency contact. A promise was secured to end truck washing, the promise was broken on only one proven occasion without the knowledge or complicity of the defendant company's manager. Steps were taken to lock the water outlets to prevent a recurrence. Tenants who rode ATVs on the asphalt piles were evicted. Misting of material being ground was instituted. The defendant has undertaken to hire experts to prepare a site plan application with various conditions to alleviate environmental concerns. It is said all these things are occurring because of the agency's scrutiny — some of them occurred, one should note, before the court became directly involved. But the point is whether because of agency scrutiny or not, steps have been instituted to protect the environment which are ongoing pending final action on the site plan application.
The court has a particular problem with the storm water runoff issue and the references to the threat of flooding and storm surges. Mr. Magby, the head of the plaintiff organization, said he would be satisfied and there would not be a problem if all his group's recommendations and conditions on site plan approval were to be accepted. But as to storm water management these were not described in any detail nor was there any detail or specific criticism of the defendant's proposal to address the same problem. How is the court to fashion an appropriate order; and is there a most feasible way of instituting controls in this area which protect the environment without closing down this business (cf. § 22a-19)? Perhaps the request is that the business be closed down because there is no way to deal with the problem of runoff from these stockpiles (hinted at by Sailer) or because of flooding concerns? But a lot of time, effort, and expense has been invested in by both sides to address this issue before Planning and Zoning which has a great deal more expertise in this area than the court and which presumably has detailed plans and explanations before it to address runoff problems. The court will remand the matter to the Commission pursuant to § 22a-18 and thereby will retain jurisdiction pending completion of agency action on this particular problem concerning the stockpiled materials for the purpose of determining whether the Commission has given "adequate consideration" to environmental concerns. To summarize equitable relief as to the stockpiles and runoff and flooding issues is not appropriate at this time. There has not been sufficient proof of any possible pollution and resulting contamination of the tidal wetlands as the court's factual discussion indicates. However, any sedimentation drifting into the tidal wetlands would be an environmental concern and for that reason the court believes it should retain jurisdiction upon remand. An agency with expertise is addressing the problem, however, and there is not sufficient basis in the record for the court to decide one method of containing runoff is more feasible or fair to all concerned than another.
As noted and referring to injunction standards discussed earlier in this opinion absent the threat, or at least proven threat of the presence of contaminants the court does not believe immediate injunctive relief is appropriate to protect against the only matter proven — sedimentation migrating to the tidal wetlands. If the only relief alternative is to order removal of the stockpiles this would, in effect destroy the defendant's business and the equities of the case do not require such a result.
The court does have a concern with truck washing and the danger this poses to the environment. There seems to be no dispute that hydrocarbons can disperse into the environment as a result of this process and they would be a pollutant. Also the defendant does admit that on some driveways and parking lots there are oil deposits. Because of this he does not bring material from these locations back to the site. Also he does not bring asphalt from gas stations back to the site for the same reasons. The court has particular concern with these factors because of the lack of storm water and runoff management. Also the court is aware of no specific orders or requests by Planning and Zoning to address these pavement collection concerns. Therefore the court will enjoin the defendant from truck washing on the property and will further enjoin it to continue its practice of not bringing gas station asphalt pavement and pavement from location upon which he observes oil deposits or oil contamination back to the site. These are merely prohibitory not mandatory injunctive orders imposing little or no burden on the defendant since it already has agreed to comply with the orders.
The court does not agree that as to these matters injunctive relief should be denied because the issue "has been resolved or has lost its significance because of intervening circumstances," Conn. Coalition Against Millstone v. Rocque, 267 Conn. 116, 126 (2003). The concerns these activities raise have not been resolved since the defendant still operates his business at the site, close to tidal wetlands and in the absence of storm water management. This is not the same scenario presented in Rocque and the cases it cites. Also the court was frankly concerned by a statement Mr. MacLellan made indicating he did not understand why truck washing controls were imposed on the business.
VIII
The court agrees with the defendant that the plaintiff has failed to prove a public nuisance under Pestey v. Cushmen, 259 Conn. 345, 355-56 (2002). Four conditions must be met under that case and they have not been proven here. There has been no evidence that any condition complained of has a natural tendency to create danger and inflict injury. If the dust issue is examined two major and isolated incidents of dust production have been referred to but they are not likely to occur again (trench digging, ATVs on piles). The most dust production testified to was two dozen times over a four-year period (Woods) and the frequency of this was contradicted by another plaintiff's witness (Nugent). Also how can it be said the use of the land was unreasonable? Is it because of the possibility of sediment migration to the tidal wetland? But this migration will run toward the wetlands and not toward residential areas. It is difficult to see what injuries and damages can be claimed. On this score, Mr. Woods said his property values are affected by the defendant's business but he seemed to say that was because of its existence on the site qua business not because of dust, runoff, truck washing or anything else that has been a concern in this case. Nor has there been evidence that the use of the land here unreasonably interferes with the environment apart perhaps from speculation about possible, potential, or future harm which is not the gravamen of this common-law tort. Absent proven environmental harm none of the citizens who testified can establish the predicate requirement of this tort that they have "been harmed or injured in a way that encompasses the manner in which the proposed class (of the public) is alleged to have been injured," BD Molded Prods., Inc. v. Vitek Research Co., CV9700603625S, 1998 Conn.Sup. Lexis 2363. Let alone can they establish that any harm to themselves affects an interest common to the public — they cannot even prove harm to themselves, cf. Prosser Keeton On Torts, 5th ed., § 90, page 645.
Past harm to the environment will not serve to establish public nuisance for the very reason that it is in the past. In fact one can speculate public nuisance was expanded through the environmental laws which also gave citizens standing to sue to allow protection to be sought against potential harm to the environment.
In any event the nuisance count is dismissed.