642 A.2d 762 | Conn. Super. Ct. | 1993
This action was commenced with a return day of July 18, 1989. The plaintiff, Connecticut Resources Recovery Authority, filed a motion seeking a Prejudgment Remedy in the amount of $1,009,286.38. The plaintiff claims that this sum represents its cost incurred to date resulting from responding to contamination emanating from a landfill formerly owned by the defendants, and purchased by plaintiff in 1986. The defendants deny responsibility for the cost. The landfill, located in Ellington, Connecticut, was acquired by the plaintiff from the named defendant, Refuse Gardens, Inc., (Refuse), on July 7, 1986. On July 18, 1986, Refuse filed a dissolution certificate with the state, becoming a dissolved corporation. *84
The plaintiff seeks to recover costs to remedy the effects of leachate and methane gas generated by conditions contained in the landfill during the period in which Refuse was the owner.
At this time, the plaintiff is seeking a prejudgment remedy pursuant only to count four of its five count complaint. In count four, the plaintiff claims that the defendants Anthony Botticello, Dennis Botticello, Michael Botticello, Richard Botticello, and Botticello, Inc., were operators of the landfill and participated in its management.
The plaintiff claims that under General Statutes §
Leachate is created by rain water and surface water entering the buried refuse in a landfill from the top and seeping through the sides and bottom of the landfill. The process of rain water and surface water passing through the landfill creates a contaminant. This contaminant, in the form of water, comes out of the sides and bottom of the landfill polluting the ground water in the area. *85
Methane gas is created from household solid waste material delivered to the landfill and decomposed. Methane gas is highly flammable.
Landfill leachate and landfill gas are commonly associated with municipal solid waste landfills.
The history of the landfill in issue is as follows. In 1966, two individuals, Parker and Sweet, opened the landfill and began its operation. In October, 1974, Anthony Botticello became the owner of the landfill. Anthony Botticello owned and operated the landfill until August of 1983 when ownership was transferred to Refuse. Refuse sold the landfill to the plaintiff in July, 1986.
During the entire period of its operation, the landfill took in solid waste for disposal from various local municipalities. The landfill operation was regulated by state and local authorities and various permits relating to the operation were issued by the state department of environmental protection (department) and the Ellington planning and zoning commission (commission).
Seven months after the plaintiff acquired the landfill, the commission, for the first time, required the owner of the landfill to undertake a comprehensive hydrogeologic investigation. The study was accomplished by the engineering firm of Fuss O'Neil in April, 1988. The study revealed groundwater contamination and landfill gas contamination migrating beyond the boundary of the landfill.
The plaintiff offered expert testimony of an expert who concluded that the landfill gas and groundwater contamination must have come from waste disposed of before the plaintiff purchased the landfill.
On the basis of results of the investigation, in August and September, 1989, the department issued two orders to the plaintiff concerning groundwater, *86 surface water and landfill gas contamination, all of which were emanating from the landfill. In addition, the commission imposed additional requirements concerning both groundwater and landfill gas contamination.
The plaintiff hired the firm of Energy Tactics to implement the department's 1989 order and comply with the commission's 1989 requirements concerning landfill gases. Energy Tactics made a number of submissions to the department, and after receiving the department's approval, oversaw the installation and construction of a landfill gas recovery system.
The plaintiff claims that it has incurred, and will continue to incur substantial expenditures in responding to this contamination. As a result of its landfill gas investigation, the plaintiff must install a landfill gas recovery system at a cost of $877,963.18. The plaintiff claims that it has spent approximately $133,661.19 studying groundwater and surface water contamination.
The defendants placed in issue the plaintiff's standing to use §
As the defendants point out in their brief, "this legislation was originally enacted in 1969 in response to a series of oil spills which had occurred in Connecticut harbors. Regulators and municipalities found it difficult to recover cleanup costs from the responsible parties and legislation was drafted to address this concern. . . . Since 1969, the statute has been amended to eliminate language which limited the applicability of the statute to pollution occurring in `waters of this state or adjoining shorelines or beaches' and the scope of the statute has also been expanded so that it is no longer limited to oil and petroleum spills only." *87
Section
The plaintiff's problems result from its ownership of a landfill, not from the negligent actions of the defendants. It was Refuse that sold the landfill to the plaintiff in 1986, not the individual defendants. The plaintiff's position is no different from that of any other purchaser complaining about the condition of the property it had purchased. That condition could have been addressed by a detailed prepurchase inspection of the condition of the landfill, and by reliance upon the negative covenant required by General Statutes §
Section
The plaintiff claims that there are three essential elements to section
The language of section
On the flip side of §
No such language, as contained in §
The relationship between the plaintiff and the defendants for the most part is founded upon a contractual basis. The defendants are alleged to be either owners or officers, directors, and shareholders of Refuse. Count one is a claim based on contractual indemnification. Count two is a claim based upon a breach of the conditions of a negative declaration. Count three is a claim based upon breach of contract. Count five is a claim for declaratory judgment. Only count four is a claim for statutory reimbursement pursuant to §
In contrast to §
The use of the phrase "resulted from the negligence or other actions of such person, firm or corporation" in §
This court concludes that culpability is an element in §
Accordingly, the plaintiff's application for a prejudgment remedy pursuant to count four of its complaint is denied.