March 9, 2007
MEMORANDUM OF DECISION
This is an action by the Department of Environmental Protection (DEP) to enforce a Consent Order between DEP and the defendant, Mr. Strollo, pertaining to underground fuel storage tanks (USTs) now or formerly located on business property which Mr. Strollo owns located at 528-532 West Main Street in Cheshire, Connecticut.
The court heard evidence on February 8 and 9, 2007. At the start of the hearing, the court stated that it would first decide the issue of whether and how the defendant violated the Consent Order, with a subsequent hearing, if necessary, on issues pertaining to possible sanctions for any such violation.
On the basis of the evidence presented, the court finds that the defendant did violate the Consent Order in April 2001, when he became aware of discharge of gasoline or other related pollutants in the area where one of the USTs in question had been recently removed, and failed to notify DEP. The court that the notification requirement set forth in paragraph B.6(1) of the Consent Order is clear, unambiguous and all-inclusive. A property owner in defendant's situation who comes upon obvious contamination in the area where a UST has just been removed should not engage in any effort to decide whether or not the condition is new or "historic." He should do what the Consent Order requires and immediately notify DEP.
Paragraph B.6 also required defendant to "begin corrective action" after the contamination was discovered. The court finds that the steps taken by Mr. Strollo after the problem was identified constitute compliance with Paragraph B.6(2). DEP obviously drafted the Consent Order. Had it wanted to impose a requirement that the defendant/respondent proceed, in such situations, to take all necessary corrective action to eliminate the contamination, to specify procedures which Mr. Strollo was to follow, and to impose time limits for remediation, it clearly could have done so. This obvious ambiguity in the parties' agreement should be, and is, construed in favor of the respondent.
This is not to say that defendant shall forever benefit from this drafting problem. There is contamination on his property which he is obligated to remove. The court will hear additional evidence to determine the relief to which plaintiff is entitled. Counsel will appear before the undersigned for a status conference at 9:30 a.m. on Friday, March 23, 2007 to discuss the issues which they believe need to be addressed in the second hearing and to set a hearing date.