Ann Catino, a partner in the Environmental and Land Use Group, and Joseph Fortner, Jr., a partner in the Business and Commercial Litigation Group, of Halloran & Sage recently secured a ruling from the U.S. District Court for the District of Connecticut, disposing of virtually all claims asserted against its municipal client in an environmental class action. This decision is a substantial victory for municipalities and for clients who undertake investigation and remedial responsibilities pursuant to a Consent Order with an administrative agency.
In Collins, et al. v. Olin Corp., et al., 3:03CV945 (CFD), the Town of Hamden was sued by some of its residents, who claimed that their homes had been built on locations used as dumps in the late 19th and early 20th centuries. The plaintiffs sued the Town, and the successor of the company which allegedly generated and disposed of industrial waste. Their claims included certain common law and statutory claims for damages and injunctive relief, including claims for negligence, abnormally dangerous activity, recklessness, nuisance and other specific claims arising various state and federal environmental laws. The plaintiffs filed their action immediately after a Consent Order was entered by the Connecticut Department of Environmental Protection between the Town, the company co-defendant, and certain other parties DEP alleged to be responsible for the environmental conditions existing at a middle school, public parks and approximately 300 homes. The Consent Order allocated responsibility among the parties and provided that the Town was to investigate and remediate only the public parks; Olin was to investigate and remediate the residential neighborhood. The residents, proposing class status, requested the Court to essentially undue the allocation of responsibility set forth in the Consent Order and requested the Town to undertake investigation and remediation of the very conditions that were covered in the DEP administrative proceeding. Halloran & Sage moved to dismiss all claims ordering the Town to undertake such actions, and, while the motion to dismiss was pending, also moved for partial summary judgment precluding any assessment of damages against the town under the doctrine of governmental immunity.
In his decision dated February 28, 2006, the Hon. Christopher Droney, U.S.D.J., ruled in favor of the Town on both motions. First, the court dismissed the claims for injunctive relief under the doctrine of primary jurisdiction. The Court readily acknowledged that the lawsuit would largely undue the allocation of responsibility set forth in the Consent Order and that the decisions required for proper remediation of the properties are more properly within the environmental agency’s field of expertise and discretion.
The court next granted summary disposition of the claims alleging negligence, gross negligence, negligence per se, and negligent infliction of emotional distress, on the grounds that the doctrine of governmental immunity barred those claims and any claims for damages. While the plaintiffs had been given an opportunity to search for any evidence reflecting that the Town engaged in a proprietary function in allegedly permitting the filling of waste materials in the low-lying areas, the court concluded that the historical Town records indisputably show that any filling activities or control of filling by the Town occurred to redress and control mosquito breeding places and the spread of mosquito-borne illnesses. Further, the plaintiffs could not demonstrate that the Town received any proprietary benefit from the development of homes, parks and a school other than the general benefits arising from the normal growth and development of a residential community. Fees from building permits, certificates of occupancy or even an enhanced tax base were not considered by the Court to represent proprietary acts. Similarly, despite plaintiffs’ best efforts to create a factual dispute about the Town’s “recklessness,” in allowing such filling and future development, the court noted that the Town needed to control landfilling and garbage collection and disposal activities primarily to address issues of health and safety present at the time and that there was no evidence at the relevant time that this landfill material posed a health or safety threat to later developers. Thus, with the exception of a single claim under CERCLA (regarding which a motion has yet to be filed), all substantive claims against the Town have been effectively dismissed.
The significance of the decision lies in (1) the court’s discussion of the application of governmental immunity and whether a municipality can be sued for disposal and filling activities that happens within the municipality when any such activity allegedly permitted or conducted by the Town is for the benefit of its citizens at the time and (2) that a party to a Consent Order cannot be required to perform a clean up independent of or separate from any agreements (eg., a Consent Order) that party has with DEP.