Opinion
No. CV 95 0548320 S
June 1, 2007
MEMORANDUM OF DECISION
I
On March 24, 1995, the plaintiff, Sidney J. Holbrook, Commissioner of Environmental Protection, filed the instant action pursuant to the dam and reservoir statutes, General Statutes § 22a-401 et seq. The plaintiff sought injunctive relief requiring the defendant, Huntington Kildare, a New York corporation, to comply with final order, DSO-92-005. The order, issued by the Department of Environmental Protection (DEP) on April 7, 1994, declared that Hatch Pond Dam, owned by the defendant, was in an unsafe condition.
The hearing on the instant motion took place in September 2006 and again in January 2007 with the named plaintiff of Arthur J. Roque, Jr., successor to Commissioner Holbrook. The current commissioner is, however, Gina McCarthy, who was appointed December 10, 2004.
On January 28, 1998, this court approved a stipulated judgment requiring the defendant to comply with the order, to make certain repairs to the dam and to pay a civil penalty. Pursuant to the stipulation, the DEP issued a dam order repair approval on January 29, 1999 requiring that the repairs be completed by December 31, 1999. On September 15, 2000, the DEP filed a motion for contempt for the defendant's failure to comply with the stipulated judgment and the new dam repair order and to pay the civil penalty. On August 14, 2001, the court, Beach, J., approved a second stipulated judgment and found that "the parties agreed to an order that the defendant [was] in contempt of the prior orders of the [c]ourt." Additionally, the court required the defendant to achieve full compliance with the prior orders by December 31, 2001 or be subject to a coercive fine of $250 per day.
The parties also agreed that either party could offer evidence and argue for a greater or lesser penalty. General Statutes § 22a-407 provides: "[a]ny person who violates any provision of this chapter, any order or permit issued by the commissioner pursuant to this chapter shall forfeit to the state a sum not exceeding one thousand dollars, to be fixed by the court, for each offense. Each violation shall be a separate and distinct offense and, in case of a continuing violation, each day's continuance thereof shall be deemed to be a separate and distinct offense. The Attorney General, upon complaint of the commissioner, shall institute an action to recover such forfeiture and to enjoin such violation and require its correction."
On April 6, 2004, the Attorney General contacted the defendant's attorney, John Nugent, in connection with an October 30, 2003 inspection which indicated that numerous items had not been completed. On May 31, 2006, the DEP moved to enforce the August 14, 2001 order maintaining that the defendant had still not complied with the prior orders and on September 26, 2006, the instant trial commenced. On September 27, 2006, the DEP moved to amend its motion and on October 31, 2006, the parties and this court met to view the dam. By agreement of the parties, the matter was continued to January 16, 2007 so that the DEP could obtain certain soil tests on the dam and on that date, this court began hearing an additional four days of evidence. After filing post-trial briefs, closing argument was heard on April 26, 2007.
The seven defects listed in the motion are the same as those set forth in the April 6, 2004 correspondence between counsel.
II
In its May 31, 2006 motion, as amended on September 28, 2006, the DEP argues that the defendant has failed to make the following repairs to the dam:
1. install the toe drain system;
2. make the upstream slope of the raised embankment section an approved slope of 1.5:1;
3. install a forty-two-inch layer of rip rap on the raised embankment on the upstream slope of the dam
4. widen the crest of the dam to a uniform width of approximately fifteen feet;
5. make the downstream slope of the raised embankment section an approved slope of 2:1;
6. repair the downstream embankment near the left abutment contact which has eroded twelve to twenty-four inches deep due to voids and signs of settlement of the embankment fill;
7. remove embankment material in the raised section which material does not meet approved specifications and replace and compact with material that meets the specifications.
This court will address each of the allegations.
(1)
The first alleged failure concerns the installation of a toe drain system on the downstream side of the dam. There is no question that the system has not been installed. On January 29, 1999, the DEP approved the plans and specifications of a toe drain system submitted by the defendant's engineers, Leggette, Brashears Graham, Inc. (LBG). Nevertheless, the defendant unsuccessfully attempted to convince the DEP to approve a different system, known as a drainage blanket or drainage mat or filter mat system, to control any downstream dam seepage.
On January 18, 2001, three years after the first stipulated judgment, LBG submitted the first revision to the plans. The DEP responded that, while the type of system was acceptable, the specific proposal was not. LBG replied by the DEP's February 16, 2001 deadline, but the revisions were not acceptable. The Attorney General, representing the DEP, notified the defendant's attorney on March 29, 2001 that "[the] response is unacceptable from a design standpoint" and that "any further attempts at revision by LBG, and reasonable accommodation thereto by DEP, would be counterproductive." Presumably as a result of a pending motion for contempt, the parties met at the site on August 28, 2001 to discuss the seepage issue and the installation of a system at the toe of the dam.
The disagreement between the parties continued as LBG notified the DEP, by letter dated September 7, 2001, that the defendant "has elected not to implement the trench drains on the back side of the dam unless the need for such is indicated by testing . . ." The DEP responded to LBG's letter on September 27, 2001 and, while work was proceeding on other areas of the dam, the drainage system work was not commenced. Correspondence continued and LBG, by letters in December, proposed the installation of the blanket system. LBG maintained that the design had been approved by the DEP on February 2, 2001 and that, but for the DEP's actions, the repairs would have been finished by December 31, 2001, the compliance date of the second stipulation. In January 2002, further correspondence from the defendant's attorney stated that "our engineer has determined that the previous design involving trenches is a virtual impossibility to construct and would place construction personnel at severe risk of death or severe injury if a breach were to occur in the dam . . ." LBG's vice-president, representative and project engineer, William K. Beckman, testified that he did not make this statement.
This court finds that, other than some minor soil testing, no work has been done on the installation of a toe drainage system.
(2) CT Page 13547
The second failure concerns the grade of the upstream slope. The specifications, plate three, cross section B3, require the upstream slope to change from an existing grade of 2.5:1 to 1.5:1. Eugene Robida, a DEP dam inspector, testified that the slope may have, at times, met the specifications, but that the grade was not consistent over the approximately 270 feet of the dam. The upstream grade cannot be separated, however, from the third allegation.
(3)
The third alleged failure is that the defendant has not installed a forty-two-inch layer of rip rap on the raised embankment on the upstream slope of the dam. The specifications, plate 3, cross section B3, as well as the plans, section 4.0, require a thirty-inch layer of medium rip rap over a twelve-inch layer of smaller rip rap. It is clear from all testimony, the numerous pictures in evidence and this court's view, that the defendant is not in compliance with this requirement. While certain photographs by the defendant from the fall of 2001 show rip rap in place, all other photographs, including the defendant's from November 2001, show large amounts of area near the top of the dam crest lacking rip rap. The DEP inspectors commented on the upstream slope and the lack of rip rap in December 2001, February 2002 and October 2003. Similar to the second allegation concerning the upstream slope, this issue is tied to the next issue.
(4)
The fourth alleged failure is that the defendant has failed to widen the crest of the dam to a uniform width of approximately fifteen feet. The defendant is not in compliance with this requirement. The specifications do not show a specific fifteen-foot measurement; yet the dam crest measurement of ten feet together with the top portion of the upstream slope with its new addition of the three and one-half foot of rip rap, measure approximately fifteen feet. While some of the defendant's fall 2001 pictures show a fairly consistent ten-foot width with rip rap in place on the upstream slope, all other pictures, testimony and this court's view clearly indicate that the uniform ten-foot crest no longer exists as it now ranges from six to ten feet and, of course, the rip rap portion is missing. This issue also does not stand alone, however, as it is also part of the larger issue of appropriate fill.
(5)
The fifth alleged failure is that the defendant did not construct the approved slope of 2:1 for downstream side of the raised embankment. The specifications, plate three, cross section B3, show a 2:1 downstream slope. In addition, the construction for the approved toe drain system also included a regrading of the existing down stream slope as indicated in plate four, section C. Robida testified that the downstream grade did not comply with required grade based upon his measurements.
The second letter in this plate four cross section ("profile through toe collection drains") is illegible.
(6)
The sixth alleged failure is that the defendant failed to repair the downstream embankment near the left abutment contact that has eroded twelve to twenty-four inches deep due to voids and signs of settlement of the embankment fill. Pictures introduced at trial, testimony and this court's view clearly showed the settlement of the fill next to the abutments.
(7)
The seventh and last allegation concerns the fill used in the construction of the dam crest. There is no question that the defendant properly performed many of the required repairs including constructing a new spillway and plunge pool and raising the height of the crest to the proper elevation. According to James Metz, who testified that he was a consultant to the defendant, it was necessary to construct a road to bring heavy equipment to the site. He further testified that the construction activity was performed by the defendant's employees under the supervision of the defendant's foreman, who did not testify.
Perhaps he was only a consultant, but it is clear that, then and now, he has made every decision affecting the dam.
As indicated above, as early as 1994, the DEP maintained that the dam was in an unsafe condition necessitating these repairs. According to the plans, §§ 2.1-1.2 and 3.4, only certain fill materials could be used to raise the dam height. Presumably because of LBG's arrangement with the defendant, LBG did not supervise on a daily or weekly schedule and was not involved in the purchase of materials even though the initial dam order and stipulated judgment required such action, Beckman testified that he did not test the fill or observe the placement or compaction of the fill. At trial, representatives of the defendant were unable to comment about the fill material used at the site. Robida noted that the fill did not meet specifications in a report dated February 28, 2002.
After this court viewed the property, the parties agreed to have soil testing performed. Ultimately, Clarence Welti, a geotechnical engineer specializing in soil mechanics and foundations for over fifty years, took six borings along the dam to a depth of ten feet. He concluded that the materials used in the embankment fill did not meet the specifications as the percentage of "fines" was between 45 to 70 percent and exceeded the plasticity index of 15 percent which meant that the soil could slough. Indeed, the testimony, pictures and view of the court all show that this is exactly what has and is happening. The 270-foot crack/trench existing on the top of the embankment, the upstream slope with the lack of rip rap and the sink holes next to the abutment are evidence of such sloughing due to the nature of the material and its compaction along the edge of the material. As discussed earlier, many of the allegations listed above are based upon the non-compliant fill material.
III
The initial 1994 dam order became a final enforceable order when the defendant did not seek a hearing. Water Resources Commission v. Connecticut Sand Stone Corp., 170 Conn. 27, 33, 364 A.2d 208 (1975) ("The defendant at the hearing was in effect seeking a judicial decision as to the reasonableness of the commission's order. Proper procedure required the defendant, if it desired to raise the question of reasonableness, to avail itself of the opportunity for an appeal which the statutes provided. `Having failed to do so, it cannot now be heard to complain about the reasonableness of the order.' "). The parties, as discussed, incorporated the order in the stipulated judgment of January 28, 1998 and then again on August 14, 2001. The defendant stipulated and knowingly agreed to make the repairs according to the plans and specifications it prepared. It has performed some of them but not all. Apparently, through either a failure of supervision or intentional design, it used materials that do not comply with the specifications and that have and are showing signs of inevitable failure.
The dam order was issued because the dam was unsafe; with the materials used in the embankment, the dam is still unsafe as the soils will continue to slough causing those problems evident on inspection. The other defects have also been discussed. While the 2001 pictures show, that for a moment in time the dam may have met certain specifications, it was only for a moment. Yearly maintenance, to the extent it was done, as indicated in the several inspections and photographs, has not achieved compliance with the specifications.
The defendant, in its post-trial brief, argues that the court should not impose any fines because its non-compliance was not wilful, This argument is unpersuasive. Although the motion at issue here is labeled "amended motion to enforce contempt order," it is a motion to enforce the stipulated judgment.
"A stipulated judgment is not a judicial determination of any litigated right . . . It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction . . . [It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement . . ." (Emphasis added; internal quotation marks omitted.) Rocque v. Northeast Utilities Service Co., 254 Conn. 78, 83, 755 A.2d 196 (2000).
On August 14, 2001, the defendant, through its attorney, John Nugent, agreed to the stipulated judgment. Specifically, Nugent agreed that "the defendant's president . . . understands the nature, consequence of the entry of adjudication of compliance by agreement . . . and . . . agrees [to bind] the corporation of the Court order . . ." In turn, the court, Beach, J., found that the parties agreed that the defendant was in contempt. Therefore, the matter of contempt, which encompasses wilfulness, is beyond controversy here. See id.
Additionally, "[t]he court has continuing jurisdiction to enforce its orders and judgments . . . [T]he trial court's continuing jurisdiction is not separate from, but, rather, derives from, its equitable authority to vindicate judgments. Moreover . . . such equitable authority does not derive from the trial court's contempt power . . . Rather . . . the contempt power arises from the court's inherent power to vindicate prior judgments . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Rocque v. Design Land Developers of Milford, Inc., 82 Conn.App. 361, 365-66, 844 A.2d 882 (2004), citing AvalonBay Communities, Inc. v. Planning Zoning Commission, 260 Conn. 232, 241, 796 A.2d 1164 (2002). Furthermore, "[t]he court has the power to issue orders necessary to protect the integrity of the stipulated judgment." (Internal quotation marks omitted.) Bernet v. Bernet, 56 Conn.App. 661, 666, 745 A.2d 897, cert denied, 252 Conn. 953, 749 A.2d 1202 (2000). Because stipulated judgments exist in this case, the court has the power to protect the integrity of them. See id.
The remaining issue here is whether the defendant breached the agreements. "A judgment rendered in accordance with . . . a stipulation of the parties is to be regarded and construed as a contract . . . A contract is to be construed as a whole and all relevant provisions will be considered together . . . In giving meaning to the terms of a contract . . . a contract must be construed to effectuate the intent of the contracting parties." (Internal quotation marks omitted.) Suffield Development Associates, L.P. v. National Loan Investors, L.P., 97 Conn.App. 541, 555, 905 A.2d 1214, cert. denied, 280 Conn. 942, 943, 912 A.2d 479 (2006).
With the exception of the toe drain, the defendant maintains that it complied with the stipulated judgments. As discussed, this court does not agree. Moreover, in connection with the toe drain, the defendant argues first, that the approved seepage design could not be built and second, that it proposed an acceptable substitution, that if approved, would have also achieved timely compliance. This court does not believe that the defendant's February 2001 proposal to substitute the blanket system for the approved toe drain system was ever approved by the DEP. Notwithstanding the defendant's protestations to the contrary, the DEP was not required to approve the defendant's suggested modifications to the approved plans according to the January 29, 1999 dam order repair approval, § 3.C, as well as in § 7 of the January 16, 1998 stipulated judgment. As a result, the court finds that the defendant has not complied with the court's previous orders and has, therefore, breached the stipulated judgments.
As of December 31, 2001, the date the parties agreed the defendant would be in compliance, or May 31, 2006, the date the present motion was filed, it is clear to the court that the dam was not and has never been in compliance. Either the work was simply not done or it was not done according to the plans and specifications. The defendant contracted and had a duty to repair the dam in compliance with the several orders as well as to maintain the dam as set forth in the 1998 stipulated judgment. See GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445 U.S. 375, 386, 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980) ("persons subject to an injunctive order issued by a court with jurisdiction are expected to obey that decree until it is modified or reversed, even if they have proper grounds to object to the order").
It is now fifteen years from the issuance of DSO-92-005 and time for the defendant to complete the repairs that it proposed and has, in part, completed. The DEP has periodically monitored the repair activity and while some time has passed between the work and the correspondence of 2001 and early 2002, the DEP, through counsel, notified the defendant in April of 2004 that it was not in compliance. This court does not believe that the two-year period constitutes estoppel against the DEP. Additionally, "[e]stoppel generally may not be invoked against the government or a public agency functioning in its governmental capacity." (Internal quotation marks omitted.) Langan v. Weeks, 37 Conn.App. 105, 124, 655 A.2d 771 (1995).
The defendant is ordered to install the toe drain as it designed and proposed in the December 1997, revised August 7, 1998, plans and the July 28, 1998 specifications. Further, it must comply with the other six requirements as discussed above, including removal of the non-compliant fill material on the crest and installation of compliant fill material, unless otherwise modified and approved by the DEP, within five months of this order.
General Statutes § 22a-6a(a), in relevant part, provides: "Any person who knowingly or negligently violates any provision of section . . . 22a-401 to 22a-411, inclusive, . . . or any regulation, order or permit adopted or issued thereunder by the Commissioner of Environmental Protection shall be liable to the state for the reasonable costs and expenses of the state in detecting, investigating, controlling and abating such violation."
Finally, as part of the stipulated judgment entered into on August 14, 2001, the parties also agreed that a penalty of $250 per day may be assessed if compliance was not achieved by December 31, 2001. Because compliance was not achieved, the penalty could be assessed from the time of the breach, i.e., December 31, 2001, and, if fully imposed, could total over $450,000. See Jersey v. Zoning Board of Appeals, 101 Conn.App. 335, 350 (2007) (upholding fines pursuant to stipulation for judgment understood and signed by defendant). On the other hand, "[t]o deny enforcement of the coercive fine set forth in the court's prior order would neutralize the coercive power of the court to enforce its orders." Southington v. De Mello, 10 Conn.App. 581, 590, 524 A.2d 1151 (1987).
Additionally, according to § 22a-407, this sum could be much higher. See note 2.
Therefore, pursuant to the stipulated judgments and § 22a-407, a fine of $12,000 per year or $63,000 is hereby ordered for the defendant's failure to comply with the above referenced stipulated judgments. The DEP has suggested that any fine imposed by this court be stayed pending compliance with any additional orders and then reconsidered for possible rebatement; this court approves said request, but additionally notes that failure to comply may subject the defendant to additional sanctions. Pursuant to those same stipulated judgments and §§ 22a-6a and 22a-407, this court will retain jurisdiction.
Generally, the terms of a stipulated judgment cannot be lessened or enlarged by the court. See Bryan v. Reynolds, 143 Conn. 456, 461, 123 A.2d 192 (1956); see also Bank of Boston Connecticut v. DeGroff, 31 Conn.App. 253, 256, 624 A.2d 904 (1993). Nevertheless, our Supreme Court in an environmental matter pursuant to General Statutes § 22a-226 concluded that "when trial courts are asked to impose penalties . . . they are to be guided in the exercise of their discretion by considering such factors as those set forth in 33 U.S.C. § 1321(b)(6)(A), as well as by the two general goals set forth in the Civil Penalty Policy; Env.Rptr. (BNA) p. 41:2991-93; of the federal Environmental Protection Agency . . . Those factors include, but are not limited to: (1) the size of the business involved; (2) the effect of the penalty or injunctive relief on its ability to continue operation; (3) the gravity of the violation; (4) the good faith efforts made by the business to comply with applicable statutory requirements; (5) any economic benefit gained by the violations; (6) deterrence of future violations; and (7) the fair and equitable treatment of the regulated community." (Citation omitted.) Carothers v. Capozziello, 215 Conn. 82, 103-04, 574 A.2d 1268 (1990). The court is mindful of these factors in tempering the $250 per day fine to which the defendant specifically and knowingly agreed. It is also noted that, pursuant to their agreement noted in footnote 2, the defendant, before this court, offered evidence and argued for a lesser penalty.