LLC v. Drake Petroleum Company, Inc. (2012)

MEMORANDUM OF DECISION RE APPLICATION FOR TEMPORARY INJUNCTION NO. 100.37

I

PROCEDURAL HISTORY

The plaintiffs, Hammonasset Holdings, LLC and Hammonasset RV and Camp Center, LLC (hereinafter “Hammonasset”), commenced a civil action against the defendant,¹ Drake Petroleum Company, Inc. (hereinafter “Drake”), through a four-count complaint ² dated July 14, 2010.   In the complaint, the plaintiffs seek, inter alia, injunctive relief.   On July 19, 2010, the plaintiffs filed an application for a temporary injunction.   The defendant filed an answer on April 1, 2011.

The hearing on the application for temporary injunction was held on May 9, 2011, May 10, 2011, June 8, 2011, August 3, 2011, August 10, 2011, and August 11, 2011.   The parties introduced the testimony of many witnesses and a voluminous number of exhibits.   Thereafter, the parties filed post-trial briefs and proposed findings of fact.

II

DISCUSSIONA. EVIDENTIARY ISSUE POST–TRIAL

In the defendant's brief filed on October 25, 2011, the defendant refers to a proposed consent order between the department of energy and environmental protection (hereinafter “DEEP”) and Drake and attaches a copy to its brief.   The plaintiffs objected to this submission on October 28, 2011.   The court sustains the objection.   The proposed evidence is not a part of the record of the hearing and the court will not consider it.

B. FACTS

Drake is the owner and operator of a retail gasoline station and Xtramart convenience store located at 130 Boston Post Road, Westbrook, Connecticut (hereinafter “Drake site”).

The plaintiffs, Hammonasset Holdings, LLC, and Hammonasset RV and Camp Center, LLC, (hereinafter “Hammonasset”) are respectively the owner and tenant of the property adjacent to and southeast of the Drake site at 144 Boston Post Road, Westbrook, Connecticut (hereinafter “Hammonasset site”).

Jeffrey Fulcher is the owner of Hammonasset Holdings, and part owner of Hammonasset RV and Camp Center.   The nature of the business is an RV and camp center and store.   The Hammonasset site was purchased in December 2007, and the business opened in May 2008.

The Drake site is located on the north side of the Boston Post Road. It is relatively flat with a slight downward slope to the southeast.   The property is improved with a 1500 square foot single level roof, concrete block building constructed in 2003.   It is zoned for commercial use.

In May of 1992, four petroleum underground storage tanks (hereinafter “USTs”) were removed from the site and replaced.   During the removal process petroleum-contaminated soil and ground water was detected.

Thereafter, in 2003 when the present building was constructed, approximately 1330 tons of petroleum contaminated soil was excavated and removed from the site.   As a result of a release of petroleum at the Drake site, the ground water and soil have become contaminated with petroleum constituents.

The Hammonasset site is down-gradient of the Drake site.   The ground water flows in an east to southeast direction;  from the Drake site to the Hammonasset site.   Ground water is a natural resource.   The DEEP classifies the ground water at the Drake and Hammonasset sites as GA. GA ground water is suitable for potable water usage and is subject to ground water protection criteria.   The DEEP has promulgated Remedial Standard Regulations (hereinafter “RSR”).  These regulations provide threshold contaminant levels above which one must remediate contamination.   The water table at the two sites is relatively shallow, approximately two to six feet deep.   It fluctuates depending upon weather events and location on the property.   There is also some tidal influence on the ground water table.   The Drake site utilizes a storm water drainage system which collects surface waters and drains them into the underground soil.   The ground water which flows from the Drake site has caused the migration of petroleum contamination to the Hammonasset site.   The plume of contamination on the Hammonasset site consists of petroleum constituents.   These include, among others, benzene, xylene, ethyl benzene.   The storm water system on the Drake site has exacerbated the flow of contamination to the Hammonasset site.   In a significant weather event “mounding” may occur, which means the elevation of the ground water will increase.   The size of the plume has not been fully delineated or defined by Drake and its environmental consultants.

Potential receptors of the petroleum contaminates within a 500–foot radius of the site include a number of residences and a wetland located on the other side of the Boston Post Road. There are eleven properties within the radius that are not connected to water service supplied by the Connecticut Water Company and rely on ground water.   A receptor is a location which is at risk from flow of contaminates.   Mr. Fulcher became aware of the contamination in August 2008.   He reports that there are times when the odor of gas is “horrendous.”

In 2003 an environmental consulting firm known as Leonard Engineering, Inc., (hereinafter “LEI”) was retained by Drake in an effort to remediate the site.   LEI and the environmental consultant retained thereafter employ licensed environmental professionals (hereinafter “LEP”).   An LEP is licensed by the state of Connecticut to engage in activities pertaining to the investigation and remediation of pollution and sources of pollution.   LEI installed air sparge and soil and vapor extraction systems (hereinafter “AS/SVE”).   The AS/SVE system was not properly installed and the system was never operational because of the high water tables.   The SVE wells were improperly installed beneath the ground water.   Briefly stated, an AS/SVE system works in the following manner:  air sparging wells are placed into the contaminated soil and ground water, and air is then forced into the well.   This air increases the level of oxygen within a radius of the well.   The oxygen releases contaminated vapors.   The vapors are removed by the SVE portion of the system.   The SVE is a series of wells that are installed in the contaminated soil.   A vacuum blower pulls the vapors from the soil.   The oxygen has a secondary beneficial effect by increasing the rates of bioremediation;  the bacterial metabolization of the contaminants.  (Plaintiffs' Exhibits 5, 6.)

Thereafter, Drake retained Corporate Environmental Advisors (hereinafter “CEA”).   CEA prepared a Phase III site investigation report and submitted it to the DEEP on or about April 7, 2009.  (Plaintiffs' Exhibit 11a.)   CEA had been monitoring and providing ground water sampling at this site since 2005.   Laboratory reports were submitted to the DEEP. (Plaintiffs' Exhibit 11a, p. 8.) CEA reported the presence of petroleum contamination on the Drake site and concluded in relevant part that “[b]ased on the Phase III investigation findings, the analytical data is of adequate quality and sufficient accuracy, precision, and sensitivity to confirm that remediation of this release area is required.   Further investigation is warranted to determine the horizontal and vertical extent of the ground water plume east and southeast of the existing monitoring network to fill the remaining data gaps beyond MW–101 and MW–102 (east) and monitoring wells MW–109S and MW109D (southeast).³  (Plaintiffs' Exhibit 11a, pp. 31–32.)

CEA then prepared a Remedial Action Plan (hereinafter “RAP”).   The RAP was submitted to the DEEP on or about November 12, 2009.  (Plaintiffs' Exhibit 12a.)   The RAP submitted to the DEEP evaluated a number of remediation options for the agency's consideration.   A final RAP would have been prepared upon receipt of the DEEP's responses and comments.   The remediation strategies considered included among others an AS/SVE system;  ozone injection system and a chemical oxidation system, combined with an oxygen release compound.   (Plaintiffs' Exhibit 12a p. 12 et seq., Table 3.) Regarding the AS/SVE system option, CEA concluded that it was not “technically feasible.”  (Plaintiffs' Exhibit 12a, Table 3.)

In reaching this conclusion, CEA stated in relevant part:  “The characteristics of gasoline and the site indicate that introduction of air into the formation would remove petroleum and support nature bioremediation.   However, the relatively shallow depth to groundwater would make operation of a SVE system difficult.   Vacuum rates applied to the subsurface above 20 inches of water column (iwc) would draw water from the capillary zone and/or raise the water table until water would be drawn into a SVE well or horizontal intake structure.   Because operation of an SVE system is suspect of being fraught with difficulties due to the shallow water table, it was eliminated as a viable remediation method.

“While it does not appear that the existing AS/SVE system can be used for its originally intended purpose, it can (and has been) used for groundwater monitoring, and it can be used in conjunction with other available remedial alternatives.”  (Plaintiffs' Exhibit 12a p. 12.)   These other available alternatives are the other remediation options identified above.

CEA proposed that the implementation of the remedial action commence in January 2010.  (Plaintiffs' Exhibit 12a p. 19.)   However, this did not occur because Drake terminated the services of CEA and retained its third environmental consulting firm, GeoInsight, Inc.

On or about February 15, 2010, GeoInsight submitted its RAP addendum to the DEEP. (Plaintiffs' Exhibit 23.)   In the RAP it noted that CEA had concluded that an AS/SVE system was not technically feasible due to shallow ground water levels.  (Plaintiffs' Exhibit 23, p. 4.) GeoInsight proposed a modified AS/SVE system with ozone injection.  “GeoInsight proposes to overcome the limitations caused by the shallow ground water table by using horizontal SVE legs.   Ozone will be added to the sparged air to reduce the overall cleanup period.”   (Plaintiffs' Exhibit 23, p. 4.) The horizontal vent legs were proposed to be installed approximately one and one-half to two and one-half feet below ground surface.  “The primary SVE design objective is for the radius of influence of the SVE legs to overlap with those of the AS points to help ensure that the sparged air is captured.”  (Plaintiffs' Exhibit 23, p. 4.)

GeoInsight proposed the activation of the system in early July 2010.   (Plaintiffs' Exhibit 23, p. 7.) The DEEP approved GeoInsight's plan by letter dated February 24, 2010.  (Defendant's Exhibit B.) The proposed system was not implemented because GeoInsight's services were terminated by Drake.

Paul C. Clark is employed by the DEEP as an Environmental Analyst III. In this capacity he is the DEEP's Leaking Underground Storage Tank (hereinafter “LUST”) coordinator.   His tasks include enforcing LUST regulations as they pertain to site remediations.   In LUST situations the DEEP relies upon LEPs to produce RAPs for DEEP approval.   The LEP then oversees the remediation process.   There are two other programs within the DEEP that are involved in the remediation activities:  the remediation and reimbursement programs.   The remediation program receives monitoring and site status reports.   The reimbursement program receives requests for reimbursement of the cost of remediation.   The funding for the reimbursement program comes from a portion of the proceeds of the gasoline tax.   Drake is currently in the reimbursement program.   Drake has received $99,000 from the fund and is seeking additional monies.   Drake makes a claim for reimbursement in excess of $600,000.   The claim encompasses the time period of 1992 forward.  (Defendant's Exhibit T.)

Since 2008, Mr. Clark has requested and received copies of reports sent to the remediation program.   Mr. Clark reviewed CEA's November 2009 RAP. (Plaintiffs' Exhibit 12a.)   He did not approve that RAP because CEA was replaced by GeoInsight.   GeoInsight submitted its RAP in February 2010.  (Plaintiffs' Exhibit 13.)   Mr. Clark approved this RAP in February 2010.  (Defendant's Exhibit B.)

Mr. Clark has been concerned about delays in the remediation efforts on the Drake site.   The delays began in September 2008, when the DEEP issued a notice of violation.  (Defendant's Exhibit D.) This notice of violation concerns petroleum inventory reconciliation.   In September 2008, Mr. Clark was advised by Raymond Leather that it was not Drake's priority to remediate the site.   Mr. Leather was Drake's Director of Environmental Affairs.

Drake terminated GeoInsight's services.   Drake next engaged its current environmental consulting firm, Environmental Compliance Services, Inc. (hereinafter “ECS”).   On or about April 15, 2010, ECS submitted its “Conceptual Strategy and Scope of Services for Site Remediation” to Drake.  (Plaintiffs' Exhibit 22.)

ECS noted in its plan:  “Installation and startup of the remediation system must be completed by September 30, 2010 in order to meet the requirements of the Connecticut Underground Storage Tank Petroleum clean up program ․” (Plaintiffs' Exhibit 22, p. 2.) This is the reimbursement program previously discussed.

ECS prepared and submitted a third RAP for the Drake site.   It was submitted to the DEEP on or about June 18, 2010.  (Defendant's Exhibit C.) The Drake site had now become a priority, because of the present lawsuit.   The goal was to have the system operational by September 1, 2010.  (Plaintiffs' Exhibits 46, 47 and 48.)

Michele Alabiso is Drake's Environmental Compliance Manager.   Matt Rood was the ECS project manager for the Drake site.   Jeffrey Brown is an LEP, and the manager of ECS's Branford, Connecticut office.   Mr. Brown was intimately involved in the design and implementation of the ECS RAP. In Mr. Rood's June 14, 2010 e-mail to Mr. Brown, it is noted that Ms. Alabiso received what appears to have been a draft RAP and made comments.   Mr. Rood thereafter made edits based upon those comments.   Mr. Rood was, however, concerned that Ms. Alabiso wanted the RAP to state that the Hammonasset site and a Taylor Rental site, both downgradient, have caused contamination to the ground water.   Mr. Rood reported, “I just don't know if I feel comfortable stating that ETPH on those properties may be coming from those properties considering our site has ETPH impacted groundwater and groundwater flow is towards the east/southeast.   Also, both property owners are included on the cc list for the report, so we'd be sending them a report saying that they may be contributing to the ETPH impacts without any good evidence.  [I]t just seems like kind of a loose statement, what do you think?   I've attached the RAP w/her comments.”   (Plaintiffs' Exhibit 50.)

In Mr. Rood's August 26, 2010 e-mail to Ms. Alabiso, he in part reported that the SVE portion of the system would be operational by August 31, 2010.   He further inquired whether it was “imperative that the AS site is also running?”  (Plaintiffs' Exhibit 48.)   Ms. Alabiso responded by e-mail, “I'll be honest as long as that things (sic) is making noise and the neighbor thinks it (sic) running I will be happy.”  (Plaintiffs' Exhibit 48.)

The RAP developed by ECS provided for the use of an AS/SVE remediation system.   ECS proposed the utilization of AS/SVE components previously installed on the Drake site and the installation of additional AS wells and horizontal SVE trenches.  (Defendant's Exhibit C.)

The proposal included the placement of ground water monitoring wells on the Hammonasset site but no AS/SVE wells.   Paul Brown gave ECS his verbal approval of the RAP because he wanted an operational remediation system put in place.   Additionally, he had previously approved the technology proposed.

The AS/SVE was constructed and made operational by September 2010.   ECS has provided quarterly ground water monitoring reports to the DEEP.

On January 21, 2011, approximately five months after the AS/SVE system became operational, the commissioner of the DEEP issued an administrative order to Drake.   Paul Clark participated in the preparation of the order.   The order provides in relevant part:

“7. Respondent Drake owns and operates a service station at the Westbrook site that consists of two 8,000 gallon capacity gasoline underground storage tank (USTs), and two 4,000 gallon capacity USTs containing diesel fuel and/or kerosene.   This UST system and associated connected piping were installed at some time in May 1992.

“8. Respondent Drake, as an owner and/or operator of the UST system at the Westbrook site must comply with the Regulations of Connecticut State Agencies (RCSA) Sections 22a–449(d)–1 et seq. governing the management of the UST systems.

“9. As a result of Respondent Drake's operation of the UST system at the Westbrook site, groundwater at and around the Westbrook site has become contaminated with petroleum constituents.

“10. Respondent Drake's failure to contain and remediate the contamination at the Westbrook site has contributed to the offsite migration of petroleum contamination from the Westbrook site.

“11. Pollution on and emanating from the Westbrook site has not been adequately investigated, characterized, or remediated by Respondent Drake.

“12. The soil and ground water at the Westbrook site is polluted with gasoline constituents, including but not limited to, benzene.

“13. By virtue of the above, Respondent Drake is maintaining a facility or condition which has created, and reasonably can be expected to create, a source of pollution to the waters of the state.”  (Plaintiffs' Exhibit 17, paragraph A.7–13.)

The commissioner ordered in part that Drake retain a qualified consultant and submit a “scope of study for the investigation of petroleum releases” and contamination of the soil and ground waters and prepare a RAP. He further ordered Drake to perform remedial action in accordance with the approved RAP. (Plaintiffs' Exhibit 17.)   Drake has contested the administrative order.

The AS/SVE remediation system currently being operated on the Drake site is not functioning effectively.   The AS system is forcing air into the soil and ground water, but the SVE is not consistently pulling the contaminated vapors out of the soil.   This is the result of ground water entering the SVE system and rendering it ineffective.   An SVE well and lateral must be within an unsaturated soil zone, in order for them to function.   The SVE must create a vacuum across the site, as opposed to a positive pressure.   The positive pressure is pushing the contamination downgradient from the Drake site to the Hammonasset site.   The storm water drainage system on the Drake site exacerbates the situation by adding storm water to the existing high ground water.

The cumulative hydrocarbon removal data demonstrates that the AS/SVE system essentially plateaued in March 2011, indicating that the system is failing to recover contamination from the soil.  (Defendant's Exhibit Q.)

The reliability of the ground water testing data is questionable for several reasons.   First, petroleum floats on water;  therefore, the highest concentrations of contaminants are found at the top portion of a water column.   On the site a number of the monitoring wells being utilized to test for petroleum contaminants are screened below the ground water.   The result is that water samples may not accurately represent the actual level of contamination.

Second, ECS utilizes a peristaltic pump to collect ground water samples.   This pump brings ground water to the surface by vacuum.   The current industry standard is contained within the January 19, 2010 U.S. Environmental Protection Agency Low Flow Purging and Sampling Procedures.  (Plaintiffs' Exhibit 19.)   The use of peristaltic pumps in the current situation is not recommended, because it may cause a degassing of the water sample and thus, under-represent the levels of petroleum contamination.  (Plaintiff's Exhibit 19, Appendix A.)

The plume of contamination on the Hammonasset site appears to be expanding.   Benzene is soluble in water and is an indicator of the migration of the plume.   Benzene has now been detected in monitoring well 111.  (Defendant's Exhibit E, Table 1.) This well is located on the Hammonasset site and is in the proximity of the RV Center building.

The ECS projection that the site will be remediated within a three- to five-year period of time is not realistic, given the performance of the current AS/SVE system.

The soil and ground water at the Drake site is polluted with gasoline constituents.   These constituents, which include benzene, are very harmful to life and the environment.   Drake has been fully aware of the petroleum contamination since May 1992.   During what is now in excess of nineteen years, Drake has failed to take the necessary steps to remediate the site.   The failure to remediate the Drake site has caused the off-site migration of petroleum contamination to the Hammonasset site.   The plume of contamination has not been appropriately investigated and defined.   Drake has failed to implement any active remediation on the Hammonasset site.

There are other remediation strategies available which, if properly employed on both the Drake and Hammonasset sites, would clean up the contamination within a reasonable period of time.   These alternatives were identified and discussed in the RAPs proposed by CEA, GeoInsight, and ECS. (Plantiff's Exhibits 13, 23;  Defendant's Exhibit C.)

C. ANALYSIS

1. Temporary Injunction Standard

“In general, a court may, in its discretion, exercise its equitable power to order a temporary injunction pending final determination of the order, upon a proper showing by the movant that if the injunction is not granted he or she will suffer irreparable harm for which there is no adequate remedy at law ․ A party seeking injunctive relief must demonstrate that:  (1) it has no adequate remedy at law;  (2) it will suffer irreparable harm without an injunction;  (3) it will likely prevail on the merits;  and (4) the balance of equities tips in its favor ․ The plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm as a result of that violation ․ Moreover, [t]he extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted.   Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm.”   (Citations omitted;  internal quotation marks omitted.)  Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97–98, 10 A.3d 498 (2010).

In their post-injunction hearing brief, the plaintiffs argue that the court may grant an injunction pursuant to the Connecticut Environmental Protection Act (CEPA), General Statutes § 22a–14 et seq., even in the absence of proof of irreparable harm and a lack of an adequate remedy at law.   The defendant does not directly address this argument, but maintains that all four injunction criteria must be satisfied in order for the court to grant any type of equitable relief under the nuisance, negligence and trespass counts of the complaint.

To the extent that the plaintiffs seek a permanent injunction against the defendant based on its violation of CEPA, the plaintiffs are correct that they would not be required to prove irreparable harm or a lack of an adequate remedy at law with respect to such a claim.   Although there is no appellate authority directly on point, the Superior Court has consistently interpreted Conservation Commission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984),⁴ as standing for the proposition that plaintiffs are not required to prove that irreparable harm will result from the defendant's conduct or that there is a lack of an adequate remedy at law if the plaintiffs establish that the defendant's conduct violates CEPA.⁵ See, e.g., Committee to Save Guilford Shoreline, Inc. v. Arrow Paving, Superior Court, judicial district of New Haven, Docket No. CV 06 4020284 (March 2, 2007, Corradino, J.) (irreparable harm need not be shown in any action for injunctive relief under § 22a–16 when relief sought is based on claim of violation of regulatory scheme aimed at the activity or detailed statutory scheme controlling the activity);  Hutchings v. Dept. of Economic & Community Development, Superior Court, judicial district of Hartford, Docket No. CV 00 0597095 (April 14, 2000, Wagner, J.) (“[w]here the statute invoked specifically provides for injunctive relief, as does § 22a–16, to insure compliance with CEPA, the plaintiff has only to establish a violation of the statute and a balancing of the equities in its favor”);  Serra v. Solnit, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 95 553813 (August 9, 1996, Satter, J.) (17 Conn. L. Rptr. 399, 400) (“where a plaintiff claims violation of a statute, as here, the plaintiff need not prove irreparable harm and lack of adequate remedy at law ․ And where the statute invoked specifically provides for injunctive relief, as here at [General Statutes] §§ 22a–15 and 22a–16 to ensure compliance with CEPA, the plaintiff has only to establish a violation of the statute and a balancing of the equities in its favor.”  [Citation omitted.] );   see also D. Sherwood & J. Brooks, 15 Connecticut Practice Series:  Connecticut Environmental Protection Act (2006) § 10:7, pp.   234–35 (“The case law on relieving proponents from proving irreparable harm and an inadequate remedy at law applies equally to CEPA actions”).   Accordingly, to the extent that the plaintiffs seek permanent injunctive relief based on the defendant's alleged violations of CEPA, the plaintiffs need not prove irreparable harm and lack of any adequate remedy at law.

Nevertheless, research reveals secondary authority stating that plaintiffs must prove irreparable harm to the extent they seek a mandatory temporary injunction for alleged violations of CEPA. See D. Sherwood & J. Brooks, supra, § 10:8, p. 236–37 (“it is unnecessary to prove irreparable harm for a permanent injunction while necessary for a mandatory temporary injunction”).   In the plaintiffs' application for a temporary injunction in the present case, the plaintiffs seek a temporary injunction that would require the defendant, inter alia, to take certain actions to remediate the alleged pollution, including installation of monitoring wells and a mitigation system.   The plaintiffs, therefore, must demonstrate irreparable harm in order to prevail on their application to the extent they seek such mandatory temporary injunctive relief.   Moreover, to the extent the plaintiffs seek injunctive relief with respect to counts one, two and four, sounding in nuisance, negligence and trespass, respectively, the traditional four-part test is applicable to those claims as well.

The plaintiffs have met their burden of proving that they are entitled to a temporary injunction in this case.   The plaintiffs have proven that the soil and ground water at the Drake site and the Hammonasset site are polluted with gasoline constituents, including Benzene, which are very harmful to life and to the environment.   Drake has been fully aware of the petroleum contamination since May 1992.   During what is now in excess of nineteen years, Drake has failed to take the necessary steps to remediate the site.   The failure to remediate the Drake site and the Hammonasset site timely and effectively has caused the off-site migration of petroleum contamination to the Hammonasset site as well as to the water and other natural resources of the state.   The plaintiffs, therefore, have met their burden of proving that there is a substantial probability that they and the environment will suffer irreparable harm if the injunction is not issued.   The plaintiffs have further established that no adequate remedy at law exists because a damage award alone cannot remediate harm to the water and other natural resources of the state of Connecticut.

Moreover, the first two criteria for issuance of an injunction are also met in this case for the reasons discussed in 50 Day Street Associates v. Norwalk Housing Authority, Superior Court, judicial district of Stamford–Norwalk, Docket No. X08 CV 02 0191396 (May 17, 2005, Adams, J.).   In 50 Day Street Associates, the court held that the lack of an adequate remedy at law was established by “the stated legislative policy of CEPA to provide all persons with an adequate remedy to protect natural resources from such pollution by means of equitable relief' and that the provision of CEPA setting forth the declaration of policy, § 22a–15, represents “a legislative finding that money damages may not be an adequate remedy for the pollution or impairment of natural resources.”  (Internal quotation marks omitted.)  Id. The court also found that irreparable harm had been established in part by the lack of an adequate remedy at law as well as by the fact that the public interest in the natural resources at issue would be harmed.   This reasoning is applicable to the CEPA claim in the present case.   Accordingly, the plaintiffs have demonstrated that the first two criteria are met in this case.

The court also finds, based on the facts set forth above, that the third and fourth criteria for the issuance of a temporary injunction with respect to the CEPA claim are met.   The plaintiffs are likely to prevail on the merits on the CEPA claim because they have proven that the contamination on the Drake site is causing harm to the water and other natural resources of the state in violation of CEPA. Finally, the balance of equities tips in favor of the plaintiffs.   As discussed above, the contamination of the defendant's property was known by the defendant and has been present since at least 1992.   In the years since this contamination was discovered, it has not been adequately addressed.   The plume of contamination has not been appropriately investigated and delineated.   Despite evidence of contamination on the Hammonasset site, Drake has failed to implement any active remediation there.   Other remediation strategies are available which, if properly employed on both the Drake and Hammonasset sites, would clean up the contamination within a reasonable period of time.   Accordingly, the plaintiffs have met their burden of proving that all four injunction criteria are met.⁶

2. Scope of Relief

“[U]nder the ․ doctrine of primary jurisdiction, which is embodied by § 22a–18 of CEPA, the court has discretion, and in certain cases should refer the case, or certain aspects of it, to the administrative agency, yet retain jurisdiction for further action, if appropriate, under that section.”   Waterbury v. Washington, 260 Conn. 506, 546, 800 A.2d 1102 (2002).   General Statutes § 22a–18 sets forth the powers of the court in this context.   That section provides in relevant part:  “(a) The court may grant temporary and permanent equitable relief, or may impose such conditions on the defendant as are required to protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction. (b) If administrative, licensing or other such proceedings are required or available to determine the legality of the defendant's conduct, the court in its discretion may remand the parties to such proceedings.   In so remanding the parties the court may grant temporary equitable relief where necessary 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 the court shall retain jurisdiction of the action pending completion of administrative action for the purpose of determining whether adequate consideration by the agency has been given to the protection of the public trust in the air, water or other natural resources of the state from unreasonable pollution, impairment or destruction and whether the agency's decision is supported by competent material and substantial evidence on the whole record ․” (Emphasis added.)

Based on the statutory language of § 22a–18(b), the court may remand the parties to administrative, licensing or other such proceedings to the extent that such proceedings are “required or available to determine the legality of the defendant's conduct ․” General Statutes § 22a–18(b).  “CEPA expressly provides that it is within the trial court's discretion to remand the parties to administrative proceedings.   In Waterbury v. Washington [supra, 260 Conn. 574], the court explained that ‘[a]lthough a party may initially bypass an agency and bring an action to the court, § 22a–18(b) makes clear that the court may then remand the matter to that agency for a particular determination.’  Section 22a–18(b) is a statutory invocation of the judicial doctrine of primary jurisdiction.   Primary jurisdiction is a doctrine created by courts ‘to promote proper relationships between the courts and administrative agencies charged with particular regulatory duties.’   The Waterbury v. Washington court left to the discretion of the trial court whether to remand to the department of environmental protection the issue of Waterbury's compliance with the department's minimum flow standards.”   D. Sherwood & J. Brooks, supra, § 10:12, p. 241.

“When a trial court orders a remand pursuant to § 22a–18(b), CEPA defines the continuing relationships of the parties.   The trial court retains jurisdiction over the remanded matter.”   D. Sherwood & J. Brooks, supra, § 10:13, p. 242.   When a trial court remands a matter to an agency, it retains jurisdiction over the matter for two purposes.   First, it retains “jurisdiction of the action pending completion of administrative action for the purpose of determining whether adequate consideration by the agency has been given to the protection of the public trust in the air, water or other natural resources of the state from unreasonable pollution, impairment or destruction ․” General Statutes § 22a–18(b);  see generally D. Sherwood & J. Brooks, supra, § 10:15, pp. 243–45.   Second, the court retains jurisdiction to determine “whether the agency's decision is supported by competent material and substantial evidence on the whole record.”  General Statutes § 22a–18(b);  see generally D. Sherwood & J. Brooks, supra, § 10:14, pp. 242–43.

Accordingly, the court has the power to remand the parties in the present case to the DEEP for a determination of the appropriate remediation methods to be utilized to restore the properties at issue pursuant to § 22a–18(b).  In so remanding, pursuant to § 22a–18(b), the court would retain jurisdiction pending the agency's determination of that issue to determine whether the agency has adequately considered the protection of the public trust in the air, water or other natural resources of the state from unreasonable pollution, impairment or destruction and to determine “whether the agency's decision is supported by competent material and substantial evidence on the whole record.”  General Statutes § 22a–18(b).

III

ORDER

Pursuant to General Statutes § 22a–18(b), the court hereby remands the parties to the DEEP for further proceedings.   In so remanding, the court grants, in part, the plaintiffs' application for temporary injunction under the conditions more fully set forth below.   The court retains “jurisdiction of the action pending completion of administrative action for the purpose of determining whether adequate consideration by the agency has been given to the protection of the public trust in the air, water or other natural resources of the state from unreasonable pollution, impairment or destruction and whether the agency's decision is supported by competent material and substantial evidence on the whole record.”  General Statutes § 22a–18(b).  In remanding the parties to the DEEP, the court hereby orders the following:  (1) The defendant shall retain one or more qualified licensed environmental professionals (LEP) acceptable to the commissioner for the purposes of designing an effective remediation system for both the Drake site and the Hanunonasset site.  (2) The system shall have as its objective remediation of both sites within an expedited period of time.   Such remediation shall include remediation of the ground water in order to meet the DEEP's ground water protection criteria and the Remedial Standard Regulations.  (3) The LEP retained by the defendant must delineate and define the boundary of the plume of contamination on the properties, including any petroleum constituants.  (4) The system to be implemented must meet the following requirements, as well as any other requirements imposed by the DEEP on remand, subject to review by this court as provided by § 22a–18(b).  (A) It must address the problems associated with the storm water drainage system on the Drake site.  (B) It must include active remediation components on both the Hammonasset and Drake sites and give due consideration to available alternative remediation methods such as chemical oxidation and bioremediation.  (C) It shall incorporate effective ground water testing techniques to address the issues previously discussed.   The ground water testing must be performed from wells that are suitable for the collection of representative samples of petroleum contamination.   The defendant must discontinue the use of peristaltic pumps in testing procedures.  (5) The defendant must provide the DEEP with monitoring reports quarterly or more frequently as determined necessary by the DEEP. (6) The defendant shall submit to this court its approved RAP, which addresses the points set forth above, no later than forty-five days from the date of this order.

So ordered,

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. Although the plaintiffs originally named Westbrook Casino, LLC, as a defendant in this action, the complaint was withdrawn with respect to that defendant on December 2, 2010.   Accordingly, all references herein to “the defendant” refer solely to Drake Petroleum, Inc..  FN1. Although the plaintiffs originally named Westbrook Casino, LLC, as a defendant in this action, the complaint was withdrawn with respect to that defendant on December 2, 2010.   Accordingly, all references herein to “the defendant” refer solely to Drake Petroleum, Inc.

FN2. The counts of the complaint sound in nuisance (count one), negligence (count two), violation of the Connecticut Environmental Protection Act (count three) and trespass (count four)..  FN2. The counts of the complaint sound in nuisance (count one), negligence (count two), violation of the Connecticut Environmental Protection Act (count three) and trespass (count four).

FN3. MW–101 and MW–102 are Monitoring wells located on the southern portion of the Hammonasset site.   Monitoring wells MW–109S and MW–109 are located to the south on the opposite side of the Boston Post Road..  FN3. MW–101 and MW–102 are Monitoring wells located on the southern portion of the Hammonasset site.   Monitoring wells MW–109S and MW–109 are located to the south on the opposite side of the Boston Post Road.

FN4. In Conservation Commission v. Price, supra, 193 Conn. 429, in the context of an action to enjoin the defendants from violating the Inland Wetlands and Watercourses Act, General Statutes § 22a–36 et seq., the Supreme Court explained:  “This case is to be considered differently from a common law action for injunctive relief where allegations and proof of irreparable harm and lack of an adequate remedy at law are required.   See, e.g., Theurkauf v. Miller, 153 Conn. 159, 161, 214 A.2d 834 (1965).   ‘The rationale underlying [the] rule that the complainant is relieved of his burden of proving irreparable harm and no adequate remedy at law is that the enactment of the statute 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.’   Crabtree v. Van Hise, 39 Conn.Sup. 334, 338, 464 A.2d 865 (1983).   Recently, the Connecticut Appellate Court adopted the Appellate Session's reasoning in Crabtree in Johnson v. Murzyn, 1 Conn.App. 176, 469 A.2d 1227 (1984), [cert. denied, 192 Conn. 802, 471 A.2d 244] (zoning enforcement officer seeking injunction under General Statutes § 8–12 for violation of town zoning regulation not required to allege and prove irreparable harm and the lack of an adequate legal remedy).   We have already set forth the ‘Legislative Finding’ contained in General Statutes § 22a–36 which declares the purposes and policies of the act.   Significantly, the legislature expressly provided in the act that the ‘superior court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to impose fines pursuant to this section.’   General Statutes § 22a–44(b).“It is the court's duty to carry out the intention of the legislature as expressed in the statute it has enacted and to make the remedy it has provided an effective and efficient means of dealing with violations of the act and regulations properly promulgated under its authority.   See Water Resources Commission v. Connecticut Sand & Stone Corporation, [170 Conn. 27, 34, 364 A.2d 208 (1975) ].   We point out, however, that ‘[t]he 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 this act.”  (Citations omitted.)  Conservation Commission v. Price, supra, 193 Conn. 429–30..  FN4. In Conservation Commission v. Price, supra, 193 Conn. 429, in the context of an action to enjoin the defendants from violating the Inland Wetlands and Watercourses Act, General Statutes § 22a–36 et seq., the Supreme Court explained:  “This case is to be considered differently from a common law action for injunctive relief where allegations and proof of irreparable harm and lack of an adequate remedy at law are required.   See, e.g., Theurkauf v. Miller, 153 Conn. 159, 161, 214 A.2d 834 (1965).   ‘The rationale underlying [the] rule that the complainant is relieved of his burden of proving irreparable harm and no adequate remedy at law is that the enactment of the statute 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.’   Crabtree v. Van Hise, 39 Conn.Sup. 334, 338, 464 A.2d 865 (1983).   Recently, the Connecticut Appellate Court adopted the Appellate Session's reasoning in Crabtree in Johnson v. Murzyn, 1 Conn.App. 176, 469 A.2d 1227 (1984), [cert. denied, 192 Conn. 802, 471 A.2d 244] (zoning enforcement officer seeking injunction under General Statutes § 8–12 for violation of town zoning regulation not required to allege and prove irreparable harm and the lack of an adequate legal remedy).   We have already set forth the ‘Legislative Finding’ contained in General Statutes § 22a–36 which declares the purposes and policies of the act.   Significantly, the legislature expressly provided in the act that the ‘superior court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to impose fines pursuant to this section.’   General Statutes § 22a–44(b).“It is the court's duty to carry out the intention of the legislature as expressed in the statute it has enacted and to make the remedy it has provided an effective and efficient means of dealing with violations of the act and regulations properly promulgated under its authority.   See Water Resources Commission v. Connecticut Sand & Stone Corporation, [170 Conn. 27, 34, 364 A.2d 208 (1975) ].   We point out, however, that ‘[t]he 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 this act.”  (Citations omitted.)  Conservation Commission v. Price, supra, 193 Conn. 429–30.

FN5. Research reveals only one decision in which the Superior Court ostensibly applied the standard temporary injunction criteria to a claim based on an alleged violation of CEPA. See 50 Day Street Associates v. Norwalk Housing Authority, Superior Court, judicial district of Stamford–Norwalk, Docket No. X08 CV 02 0191396 (May 17, 2005, Adams, J.) (applying to a claim seeking a temporary injunction for violations of CEPA “[t]he generally accepted criteria for issuance of an injunction [which] is the existence of irreparable harm and the lack of an adequate remedy at law”).   In that case, however, the court held that the lack of an adequate remedy at law was established by “the stated legislative policy of CEPA to provide all persons with an adequate remedy to protect natural resources from such pollution by means of equitable relief” and that the provision of CEPA setting forth the declaration of policy, § 22a–15, represents “a legislative finding that money damages may not be an adequate remedy for the pollution or impairment of natural resources.”  (Internal quotation marks omitted.)  Id. The court also found that irreparable harm had been established in part by the lack of an adequate remedy at law as well as by the fact that the public interest in the natural resources at issue would be harmed.   Thus, although the court in 50 Day Street Associates purportedly applied the standard test, it did so in a manner that essentially conformed with the underlying reasoning of Price in that, although it did not directly apply the holding of Price to determine that CEPA relieved the plaintiff of the requirement of proving no adequate remedy at law and irreparable harm, it reasoned that CEPA legislatively established that those criteria were met..  FN5. Research reveals only one decision in which the Superior Court ostensibly applied the standard temporary injunction criteria to a claim based on an alleged violation of CEPA. See 50 Day Street Associates v. Norwalk Housing Authority, Superior Court, judicial district of Stamford–Norwalk, Docket No. X08 CV 02 0191396 (May 17, 2005, Adams, J.) (applying to a claim seeking a temporary injunction for violations of CEPA “[t]he generally accepted criteria for issuance of an injunction [which] is the existence of irreparable harm and the lack of an adequate remedy at law”).   In that case, however, the court held that the lack of an adequate remedy at law was established by “the stated legislative policy of CEPA to provide all persons with an adequate remedy to protect natural resources from such pollution by means of equitable relief” and that the provision of CEPA setting forth the declaration of policy, § 22a–15, represents “a legislative finding that money damages may not be an adequate remedy for the pollution or impairment of natural resources.”  (Internal quotation marks omitted.)  Id. The court also found that irreparable harm had been established in part by the lack of an adequate remedy at law as well as by the fact that the public interest in the natural resources at issue would be harmed.   Thus, although the court in 50 Day Street Associates purportedly applied the standard test, it did so in a manner that essentially conformed with the underlying reasoning of Price in that, although it did not directly apply the holding of Price to determine that CEPA relieved the plaintiff of the requirement of proving no adequate remedy at law and irreparable harm, it reasoned that CEPA legislatively established that those criteria were met.

FN6. As the court finds that the temporary injunction criteria are met with respect to the CEPA claim set forth in the forth in count three of the complaint, and as the application for temporary injunction is to be granted on that basis, it is not necessary to determine whether the criteria are met with regard to the remaining counts of the complaint..  FN6. As the court finds that the temporary injunction criteria are met with respect to the CEPA claim set forth in the forth in count three of the complaint, and as the application for temporary injunction is to be granted on that basis, it is not necessary to determine whether the criteria are met with regard to the remaining counts of the complaint.

Wiese, Peter E., J.