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Pac v. Upjohn Co.

Court of Appeals of Connecticut

March 20, 1990

Stanley J. PAC, Commissioner of Environmental Protection
v.
The UPJOHN COMPANY.

Argued Dec. 15, 1989.

Page 161

[Copyrighted Material Omitted]

Page 162

S. Robert Jelley, with whom was Matthew C. Brenneman, New Haven, for appellant (defendant).

Richard F. Webb, Asst. Atty. Gen., with whom, on the brief, was Clarine Nardi Riddle, Atty. Gen., and Robert E. Walsh, Asst. Atty. Gen., for appellee (plaintiff).

Before BORDEN, SPALLONE and DALY, JJ.

[21 Conn.App. 92] BORDEN, Judge.

The defendant, The Upjohn Company (Upjohn), appeals from the judgment of the trial court accepting an attorney trial referee's recommendation that Upjohn pay a civil penalty to the plaintiff, the commissioner of environmental protection, for discharging wastewater containing effluents in excess of certain levels. Those levels were established in a March, 1983 order [1] by the commissioner to Upjohn. Upjohn claims that the court erred because (1) the effluent parameters set forth in the commission's order were meant to serve as goals or estimates, and not as enforceable [21 Conn.App. 93] effluent limitations, and (2) General Statutes § 22a-438, the forfeiture provision in Connecticut's Water Pollution Control Act (CWPCA), does not apply to violations of orders to abate pollution issued pursuant to General Statutes § 22a-431. We find no error.

Certain facts are not in dispute. Upjohn operates a batch chemical plant in North Haven that produces specialty organic chemicals. As part of its manufacturing process, this plant discharges approximately 570,000 gallons of treated process wastewater daily into the Quinnipiac River. During February, March and April, 1985, Upjohn's wastewater discharge contained concentrations of various pollutants in excess of the monthly average parameters contained in the March, 1983 order issued by the commissioner.

The March, 1983 order, issued pursuant to § 22a-431, was a modification of a previous order issued in November, 1981. The 1981 order was also issued pursuant to § 22a-431, since Upjohn could not be issued a state National Pollutant Discharge Elimination System (NPDES) discharge permit pursuant to § 22a-430 because its discharge existed prior to May 1, 1967. The 1981 order, issued by the commissioner based on the defendant's June 4, 1979 application for a federal discharge permit, contained NPDES permit number CT0001314. This permit contained within the order was issued pursuant to General Statutes § 22a-424(k), which authorizes the commissioner to "exercise all incidental powers necessary to carry out the purposes of this chapter and the Federal Water Pollution Control Act." [2]

[21 Conn.App. 94]

Page 163

The commissioner brought this action against Upjohn seeking, inter alia, a forfeiture pursuant to General Statutes § 22a-438. The trial court referred the case to an attorney trial referee. The referee, finding that Upjohn discharged pollutants in excess of effluent limitations imposed by the commissioner, recommended a civil penalty of $135,000. Both parties subsequently filed exceptions to the referee's report under Practice Book § 439. The trial court, Allen, J., supplemented the referee's report by adding four factual admissions, two by each party. Thereafter, the trial court, M. Hennessey, J., accepted the referee's report as supplemented by the findings made by Judge Allen. This appeal followed.

I

Upjohn first claims that the trial court erred by accepting the referee's determination that the limits contained in the March, 1983 order established enforceable effluent limitations. This claim is in two parts. First, it argues that the referee's determination was based on an erroneous interpretation of the 1972 amendments to the Federal Water Pollution Control Act (FWPCA), [3] and the CWPCA, General Statutes § 22a-416 et seq. Second, it claims that this determination was legally and logically inconsistent with the facts found. We disagree.

[21 Conn.App. 95] A

Upjohn claims that the referee misconstrued the Connecticut statutory scheme by failing to recognize the distinction between an order to abate pollution issued pursuant to § 22a-431, [4] and a discharge permit issued pursuant to § 22a-430. [5] It claims that the commissioner was not ...


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