Date: 10-03-2015

Case Style: Commissioner of Environmental Protection v. Underpass Auto Parts Co

Case Number: SC19329

Judge: Justice Richard Palmer

Court: Connecticut Supreme Court

Plaintiff's Attorney: Kimberly P. Massicotte, Sharon M. Seligman, George Jepsen, David H. Wrinn

Defendant's Attorney: John R.Bashaw, Desmond M.Ryan, Mary Mintel Miller

Description: The primary issue that we must address in this appeal is whether, in an action brought by the Commissioner of Environmental Protection (commissioner)1 pursuanttoGeneralStatutes§ 22a-430(d),2 the trial court, upon finding that any person had caused pollution of the waters of the state, is required to order that person to remediate the effects of the pollution pursuant to applicable standards promulgated by the commissioner and, if so, the extent to which the court may exercise its equitable powers to craft an appropriate remedy. The commissioner brought this action againstthedefendants,UnderpassAutoPartsCompany (UnderpassAuto),WallingfordUsedParts&Recycling, Inc. (Wallingford Used Parts), Dwain P. Thibodeau, Sr., andThibodeaudoingbusinessasUnderpassUsedAuto Parts,Inc.,3 alleging,amongotherthings,thatthedefendantshadviolatedGeneralStatutes§§ 22a-430(a),4 22a430b5and22a-427,6whicharepartoftheWaterPollution Control Act, General Statutes § 22a-416 et seq. In addition, the commissioner brought a claim against the defendantspursuanttoGeneralStatutes§ 22a-354s(b),7 allegingthatthedefendantshadviolatedtheregulations of the Aquifer Protection Act, General Statutes § 22a354g et seq. The trial court found that the defendants had violated these statutes and rendered judgment against them. The court also concluded that Thibodeau was personally liable for the corporate defendants’ violations of the Water Pollution Control Act under the responsiblecorporateofficerdoctrine,butthathecould not be held personally liable under that doctrine for the corporate defendants’ civil violations of the Aquifer Protection Act. As the remedy, the trial court ordered the defendants to pay certain fines and to retain a licensedenvironmentalprofessionaltoassistthedefendants in complying with the statute, to conduct testing on the site wherethe discharges occurred to determine if ‘‘a significant environmentalhazard’’ exists and, if so, to abate the condition. The commissioner then filed this appeal8 claiming that: (1) having found that the defendants had violated these environmental statutes, the trial court was required by law to order the defendants to remediate the pollution in accordance with remediation standards promulgated by the commissioner, and that the court did not have discretion to fashion a remedy that did not purport to do so; and (2) thetrialcourtincorrectly determinedthattheresponsible corporate officer doctrine did not apply to civil violations of the Aquifer Protection Act. We agree with thecommissioner’sfirstclaim,andwefurtherconclude that the trial court’s order also constituted an abuse of discretion because it was effectively unenforceable. Accordingly,thecommissionerisentitledtoanewtrial. We reject, however, the commissioner’s second claim. The trial court found the following facts that the
parties do not dispute. The defendants operate a junkyardandmotorvehiclerecyclingfacilitylocatedat1125 South Broad Street in Wallingford (site) and they have done so since at least 2003. Thibodeau is an officer of both Underpass Auto and Wallingford Used Parts. The site, which is not paved, covers approximately three acres. The site is located approximately 1500 feet from twopublicwatersupplywellsandiswithinadesignated aquifer protection area as defined by General Statutes § 22a-354h (10).9 On October 16, 2003, Thibodeau submitted to the Department of Energy and Environmental Protection (department)10 a registration for coverage under the department’s general permit for the discharge of storm water from industrial activity at the site pursuant to § 22a-430b. Thereafter, the department issued a certificate of registration to Underpass Used Auto Parts, Inc. In 2009, Thibodeau applied for a renewal of the certificate of registration, which was also granted.11 Between 2003 and 2013, employees of the department inspected the site on numerous occasions and observed oil staining dirt on the site. As the result of these inspections, the commissioner issued notices of violation to the defendants in 2005 and 2007. The commissioner brought this action against the defendants in 2009. The operative complaint alleges that the defendants had: (1) failed to register under the generalpermitfordischargeof stormwaterasrequired by § 22a-430b (a) for the period between March 19 and October 16, 2003; (2) failed to comply with the general permit in violation of § 22a-430b (a); (3) discharged substancesintothewatersofthestatewithoutapermit inviolationof§ 22a-430(a);and(4)pollutedthewaters of the state in violation of § 22a-427. All of these claims were brought pursuant to the Water Pollution Control Act. The complaint further alleged that the corporate defendantshadfailedtocomplywithaquiferprotection regulations in violation of § 22a-354s (b), under the Aquifer Protection Act. Finally, the complaint alleged that Thibodeau was personally liable for the violations oftheWaterPollutionControlActbothasaparticipant in the conduct and under the responsible corporate officer doctrine, and he was personally liable for the violations of the Aquifer Protection Act under the responsible corporate officer doctrine. After a trial to the court, the trial court found the facts previously set forth in this opinion and concluded that ‘‘[p]ollution of the surface and groundwater [was] likely given the levels of contaminants in the soil.’’12 It further concluded that ‘‘based on this evidence as well as the broad definitions of the [applicable] statutory terms . . . that there has been pollution of, and a discharge of substances or materials into, waters of the state from the site since 2003. The commissioner has not specifically issued a permit for these discharges.
Further, there was a failure to take all reasonable steps to minimize or prevent a discharge having a reasonable likelihoodofadverselyaffectingtheenvironment.Thus, violations of . . . §§ 22a-427, 22a-430 (a), and the regulations promulgated under . . . § 22a-430b have occurred.’’ (Footnote omitted.) Accordingly, the court expressly concluded that the defendants had violated these statutory and regulatory provisions. In addition, the court concluded that the commissioner had established ‘‘past violation by [these] defendants of the aquifer regulations and future dangers to the aquifers located nearby’’ in violation of the Aquifer Protection Act. Finally, the court determined that Thibodeau was personally liable for the violations of the Water PollutionControlActundertheresponsiblecorporateofficer doctrine, but that that doctrine did not apply to civil violations of the Aquifer Protection Act because § 22a354s (c)13 limits the applicationof the doctrineto criminal violations of the Aquifer Protection Act. The trial court then turned to the question of the properremedy.Thecourt concludedthat,infashioning aremedy,itshouldbeguidedbyGeneralStatutes§ 22a438 (a).14 The court also concluded that it should consider: ‘‘(1) the size of the business involved; (2) the effect of the penalty or injunctive relief on its ability to continue operation; (3) the gravity of the violation; (4) the good faith efforts made by the business to complywithapplicablestatutoryrequirements;(5)anyeconomic benefit gained by the violations; (6) deterrence of future violations; and (7) the fair and equitable treatmentoftheregulatedcommunity.’’15 (Internalquotation marks omitted.) Keeney v. L & S Construction, 226 Conn. 205, 214, 626 A.2d 1299 (1993). The court found that the defendants had not acted wilfully, but negligently, and that they had cooperated with the commissioner in an attempt to clean up the site, ‘‘albeit at a somewhat sluggish pace . . . .’’ The court then reiterated that, despite these efforts, the defendants had allowed ‘‘continuous contamination of the soil at the site and, in all probability, pollution of surface and groundwater near the site.’’ The court also found,however,that‘‘thecommissionerhasnotproven tangible harm to the waters of the state.’’ The court further observed that, ‘‘[t]his case is not one in which the . . . defendants have significantly polluted our streams, rivers, ponds, lakes, oceans, or public water supplies.Thereiscertainlyavalidconcernforthepurity of the public well water at most 1500 feet away. But, at this point, largely because of the commissioner’s intervention and the [defendants’] ultimate cooperation, that potential has fortunately not become realized.’’ In addition, the court found that Thibodeau and his wife had earned only ‘‘modest salaries’’ from operating the site. On the basis of these findings, the trial court con
cluded that the costs of a ‘‘three phase program of investigation and remediation’’ of the pollution at the site, which the commissioner had requested, would ‘‘approachbeingprohibitive.’’16 Thecourtalsoaccepted the opinion of the defendants’ expert witness that ‘‘it is not necessary to conduct a full investigation and remediation of the site, given that contamination levels werebelowthatposingasignificantenvironmentalhazard, at least until there is a transfer or redevelopment oftheproperty.’’Thecourtthenorderedthedefendants to ‘‘retain an environmental consultant, approved by the commissioner, for three subsequent years to assist thesedefendantswithcompliancewithstormwaterand aquiferprotectionstatutesandregulations.’’Inaddition, the court ordered the defendants to ‘‘retain a licensed environmental professional, approved by the commissioner, to plan for and conduct groundwater sampling on the site to determine if a significant environmental hazard . . . exists. If it exists, the defendants shall have the obligation to abate the condition. The defendantsmustcompletetheplanning,sampling,andabatement within two years.’’ Finally, the court ordered the defendants to pay a fine of $8000 pursuant to § 22a-438 (a) of the Water Pollution Control Act. With respect to the violations of the Aquifer Protection Act, the trial court ordered the corporate defendants to pay a fine of $2000 pursuant to § 22a-354s (b).17 The commissioner claims on appeal that, having found that the defendants had polluted the waters of the state in violation of the Water Pollution Control Act and the Aquifer Protection Act, the trial court was required by law to order the defendants to remediate thepollutionpursuanttotheremediationstandardregulations promulgated by the commissioner; Regs., Conn. State Agencies § 22a-133k-1 et seq.; and did not have authority to order a different form of injunctive relief. The commissioner further claims that the trial court incorrectly determined that the responsible corporate officer doctrine did not apply to civil violations of the Aquifer Protection Act. I We first address the commissioner’s claim that the order issued by the trial court was unlawful because it does not requirethe defendants to remediatethe site in accordance with the standard remediation regulations. Inherent in the commissioner’s claim is the contention that the court abused its discretion in purporting to apply traditional equitable principles in determining whether and to what extent the defendants would be required toremediate thepollution. Forthe reasonsset forth hereinafter, we agree with the commissioner that the remedy ordered by the trial court was improper. Wefurtherconcludethat,whenthetrialcourthasfound in an action brought under § 22a-430 (d) that the defendanthas causedpollutionofthe watersofthe state,the
court is required to order remediation of the pollution pursuant to the remediation standard regulations, but thatthecourthasthediscretion,derivedfromitsequitable powers and consistent with the statutory scheme, to fashion a remedy that takes into account the various relevant considerations. As we have indicated, although the trial court concludedthatthedefendantswerenotrequiredtoconduct a full investigation and remediation of the site because the ‘‘contamination levels were below that posing a significant environmental hazard,’’ the court ordered the defendants to hire an environmental consultant to ‘‘assist[them]withcompliance’’withthegoverningstatutes and regulations. As we explain more fully herein, however, full compliance with the governing statutes and regulations would require a full investigation and remediation of the site pursuant to the remediation standardregulationspromulgatedbythecommissioner. Although it appears that the court intended that something less than full compliance would be adequate, it provided no guidance as to what that level of compliance should be. In the absence of such guidance, it will be impossible to ascertain the adequacy of any remediationeffortsthatthedefendantsultimatelymight undertake. In such circumstances, when the court’s order is so vague that the parties cannot determine what conduct is required to comply with it, the order is effectively unenforceable. See, e.g., Adams v. Vaill, 158Conn.478,485–86,262A.2d169(1969)(‘‘the[injunctive] decree should be sufficiently clear and definite in its terms for the defendant to be able to determine with reasonable certainty what conduct on his part is required or prohibited’’); see also AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 242 n.11, 796 A.2d 1164 (2002) (enforceability of injunctive order depends on whether order identifies requiredorprohibitedconductwithreasonableclarity). Moreover, the trial court’s order that the defendants conductgroundwatersamplingtodetermineifasignificant environmental hazard exists and, if so, to abate the condition, appears to derive from General Statutes § 22a-6u, which sets forth notification and reporting requirements when contaminated soil or water is discovered. The commissioner made no claim under that statutory provision, however, which sets forth certain requirements for reporting pollution, not remediation requirements.18 Furthermore,theterm‘‘significantenvironmental hazard’’ is not statutorily defined. Assuming that the trial court intended the term to refer to the level of pollution that would trigger the reporting requirementsin§ 22a-6u,thoselevelsareinsomecases manytimesthelevelsrequiringremediationpursuantto the commissioner’s remediation standard regulations.19 See, e.g., General Statutes § 22a-6u (d) (1) (reporting requirementistriggeredwhenpollutionis‘‘ataconcentration at or above thirty times’’ criteria set forth in
regulations). Whatever the parameters of the trial court’s discretion to fashion an appropriate remedy, it is not within the court’s discretion to ignore the claims that the commissioner actually raised or to invent a remediation standard that may permit significantly greater pollution than is permitted by the governing statutesandregulations.Consequently,thiscomponent of the trial court’s order in the present case cannot stand.20 Because this aspect of the court’s order may well have influenced the other relief that the trial court ordered, we cannot simply vacate this portion of the order and leave the rest of it in place, especially when another critical aspect of that order was so vague as to be unenforceable. Cf. Waterbury v. Washington, 260 Conn. 506, 597–98, 800 A.2d 1102 (2002) (‘‘When the trial court fashioned its uniform remedial order, it did so on the premise that [the city’s] conduct violated both [the Connecticut Environmental Protection Act, General Statutes § 22a-14 et seq. (CEPA)] and its contract with [the town]. It is apparent to us . . . that the entire order . . . constituted a remedial mosaic. On this record, therefore, we cannot be confident that, had the CEPA claim been determined pursuant to the [applicable substantive] statute—as it must, at least initially,ontheremand—thetrialcourtwouldnonetheless have issued the same remedial order on the contract claim. We therefore leave to the proceedings on the remand the question of the scope of the remedy for [the city’s] violation of the contract.’’). We therefore conclude that the judgment of the trial court must be reversed. Although this conclusion is dispositive, we address the commissioner’s contention that the trial court was requiredbylawtoorderthedefendantstoremediatethe pollution in accordance with the remediation standard regulations because it is an issue that is likely to arise onremand.Thisissueinvolvestheproperinterpretation of the governing statutes and regulations and therefore presents a question of law. See Renaissance Management Co. v. Connecticut Housing Finance Authority, 281Conn.227,231,915A.2d290(2007)(whenplaintiffs claimed that trial court misinterpreted statute in denying requested injunctive relief, ‘‘our inquiry focuses on whetherthetrialcourt’sdecisionwasbasedonanerroneous statement of the law’’); see also Hudson Valley Bank v. Kissel, 303 Conn. 614, 625 n.9, 35 A.3d 260 (2012) (‘‘when a court sits in equity . . . its resolution of a question of law, such as the determination of the applicable legal principle, is subject to de novo review’’). ‘‘The process of statutory interpretation involves the determination of the meaning of the statutorylanguageas appliedtothefactsofthe case,includingthe questionofwhether thelanguagedoes soapply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek
to determine,in a reasonedmanner, the meaningof the statutory language as applied to the facts of [the] case, includingthequestionof whetherthelanguageactually does apply. . . . In seeking to determine that meaning . . . [General Statutes]§ 1-2z directsus first toconsider the textof thestatute itselfand its relationshipto other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policyit wasdesignedto implement,andto itsrelationship to existing legislation and common law principles governing the same general subject matter . . . .’’ (Citationsomitted;footnoteomitted;internalquotation marks omitted.) Rainforest Cafe, Inc. v. Dept. of Revenue Services, 293 Conn. 363, 371–72, 977 A.2d 650 (2009). We begin our analysis with the language of the governingstatutoryprovision.Section22a-430(d)provides in relevant part: ‘‘If the commissioner finds that any person or municipality has initiated, created or originated or is maintaining any discharge21 into the waters of the state without a permit as required in subsection (a) of this section, or in violation of such a permit . . . the commissioner may request the Attorney General to bring an action in the superior court for the judicial districtofHartford(1)toenjoinsuchdischargebysuch person or municipality until the person or municipality has received a permit from the commissioner or has complied with a permit which the commissioner has issued pursuant to this section, or (2) for injunctive relief to remediate the effects of such discharge. . . .’’ (Footnote added.) The commissioner contends that, pursuant to this statute, she ‘‘is entitled to injunctive relief to ‘remediate the effects of the [unlawful] discharge,’ ’’andthatremediationpursuanttotheremediation standard regulations promulgated by the commissioner is required as a matter of law because those regulations provide the only standard by which remediationcanbemeasured.Thedefendantsmaintain that the language of § 22a-430 (d) does not entitle the commissioner to such relief, but merely authorizes her to request it, and the trial court has broad discretion to craft the proper remedy. Neither one of these interpretations of the specific statutory language at issue is implausible, but neither one is substantially more persuasive than the other. We turn next to other related statutes. General Statutes § 22a-422, which sets forth the policy underlying the Water Pollution Control Act, provides: ‘‘It is found and declared that the pollution22 of the waters of the state is inimical to the public health, safety and welfare
of the inhabitants of the state, is a public nuisance and is harmful to wildlife, fish and aquatic life and impairs domestic, agricultural, industrial, recreational and other legitimate beneficial uses of water, and that the use of public funds and the granting of tax exemptions for the purposeof controlling and eliminatingsuch pollution is a public use and purpose for which public moneys may be expended and tax exemptions granted, andthenecessityandpublicinterestfortheenactment of this chapter and the elimination of pollution is hereby declared as a matter of legislative determination.’’(Emphasisadded;footnoteadded.)Thus,theprimary purpose of the Water Pollution Control Act is the elimination of pollution. To further this statutory goal, General Statutes § 22a-133k (a) requires the commissioner to ‘‘adopt regulations . . . setting forth standards for the remediation of environmental pollution at . . . properties which have been subject to a spill, as defined in section 22a-452c23 . . . .’’ (Footnote added.) In accordance with this provision, the commissioner has adopted the remediation standard regulations; see Regs., Conn. State Agencies § 22a-133k-1 et seq; which ‘‘apply to any action taken to remediate polluted soil, surface water or a ground-water plume at or emanating from a release area which action is . . . required pursuant to Chapter . . . 446k24 of the General Statutes . . . .’’ (Footnote added.) Id., § 22a133k-1 (b) (1). In the present case, the trial court expressly found that, as the result of the defendants’ operations at the site, ‘‘there has been pollution of, and a discharge of substances or materials into, waters of the state from the site since 2003.’’ (Emphasis added.) If the defendants are not required to remediate the effects of their discharges into the waters of the state as required by the applicable remediation standard regulations, the discharges will continue to pollute the waters of the state, thereby undermining not just the technical formalities of the statutory permitting scheme, but also the fundamental and overriding purpose of the Water Pollution Control Act—to eliminate water pollution. In light of the clear legislative purpose of that act as expressed in § 22a-422, the requirement of § 22a-133k that the commissioner adopt remediation standards to implementthatlegislativeintent,andtheinabilityofthe defendantstoidentifyanyotherapplicablestandardsor guidelines,25 we agree with the commissioner that, on remand, the trial court will be required to order the remediation of the pollution pursuant to the remediationstandardregulations.26 SeeConservationCommission v. Price, 193 Conn. 414, 430, 479 A.2d 187 (1984) (‘‘[i]t is the court’s duty to carry out the intention of thelegislatureasexpressedinthestatuteithasenacted 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’’);seealsoTennesseeValleyAuthorityv.Hill, 437 U.S. 153, 194, 98 S. Ct. 2279, 57 L. Ed. 2d 117 (1978) (‘‘[o]nceCongress,exercisingitsdelegatedpowers,has decided the order of priorities in a given area, it is . . . for the courts to enforce them when enforcement is sought’’); Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 382, 627 A.2d 1296 (1993) (‘‘[e]nvironmental statutes, considered remedial in nature,aretobeconstruedliberallytoreachthedesired result’’); United States v. Stevens, 103 Conn. 7, 19, 130 A. 249 (1925) (‘‘[t]he finding of the fact of violation [of the National Prohibition Act] was for [the trial court] to make; having found it, the issuance of the order of abatement must follow as of course by the terms of the [a]ct’’). In support of their contrary claim, the defendants rely on a number of cases holding that a court has discretion to depart from an applicable statutory scheme and to apply traditional equitable principles in crafting injunctive relief. As the commissioner maintains, however, those cases are distinguishable. In Weinberger v. Romero-Barcelo, 456 U.S. 305, 306–307, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982), the plaintiffs, the governor of Puerto Rico and certain residents of the island, brought an action pursuant to the federal Water Pollution Control Act to enjoin the United States Navy(Navy)fromdischargingordnanceintothecoastal waters during weapons training. The United States District Court for the District of Puerto Rico found that theNavyhadviolatedthefederalstatutebydischarging ordnance into the waters without first obtaining a permit from the federalEnvironmental Protection Agency; id., 308; but refused to enjoin the Navy from continuing its operations until it obtained a permit because the ordnance was not causing an ‘‘appreciable harm to the environment.’’ (Internal quotation marks omitted.) Id., 309–10. On appeal, the Court of Appeals for the First Circuit concluded that, ‘‘[w]hether or not the Navy’s activities in fact harm the coastal waters, it has an absolute statutory obligation to stop any discharges or pollutantsuntilthepermitprocedurehasbeenfollowed and the Administrator of the Environmental Protection Agency, upon review of the evidence, has granted a permit.’’ (Internal quotation marks omitted.) Id., 311. On further appeal, the United States Supreme Court held 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 federal judgesittingaschancellorisnotmechanicallyobligated to grant an injunction for every violation of law.’’ Id., 313.Thecourtfurtherconcludedthataninjunctionwas ‘‘not the only means of ensuring compliance’’ with the federal statute, the purpose of which was to preserve the ‘‘integrity of the [n]ation’s waters . . . not the permit process . . . .’’ Id., 314. Because the Navy’s discharge of ordnance had not polluted the waters, the
DistrictCourt’sorderhad‘‘neitherignoredthestatutory violation nor undercut the purpose and function of the permit system.’’ Id., 315; see also id., 320 (statute ‘‘permitsthe[D]istrict[C]ourttoorderthatreliefitconsiders necessary to secure prompt compliance with [that] [a]ct’’). The court concluded that, because Congress had‘‘notforeclosedtheexerciseofequitablediscretion, the proper standard for appellate review is whether the District Court abused its discretion in denying an immediate cessation order while the Navy applied for a permit.’’ Id. Accordingly, the court reversed the judgment of the Court of Appeals and remanded the case so that that court could apply the proper standard of review. Id. Weinberger is readily distinguishable from the present case because the District Court’s order allowing the Navy to continue its operations did not allowpollutiontocontinueinviolationofthefundamental purpose of the federal Water Pollution Control Act. The defendants also rely on Hecht Co. v. Bowles, 321 U.S. 321, 64 S. Ct. 587, 88 L. Ed. 754 (1944). In that case, the administrator of the federal Office of Price Administration brought an action against a retail store allegingthatithadviolatedthefederalEmergencyPrice Control Act of 1942. Id., 321–22. The United States District Court for the District of Columbia found that the retail store had violated the provisions of that act, but also found that it had immediately corrected the violations and taken steps to prevent future violations. Id., 325–26. Accordingly, that court declined to enjoin the retail store from engaging in future violations but the Court of Appeals for the District of Columbia reversed that judgment. Id., 326. On appeal, the United States Supreme Court held that, because the statute authorized the District Court to issue ‘‘a permanent or temporary injunction, restraining order, or other order’’; (emphasisadded;internalquotationmarksomitted)id., 328; and because the legislative history indicated that Congresshadintendedtoauthorizethecourts‘‘toissue whatever order to enforce compliance is proper in the circumstancesofeachparticularcase’’;(internalquotation marks omitted) id., 329; the District Court had discretion to exercise traditional equitable principles in crafting a remedy. Id., 329–30. The court further held that that discretion ‘‘must be exercised in light of the large objectives of the [applicable statutes].’’ Id., 331. Thus,HechtCo.isdistinguishablefromthepresentcase both because the District Court’s refusal to order an injunction did not allow the retail store to continue to violate the Emergency Price Control Act of 1942 and because the statutory scheme expressly contemplated that courts would have broad discretion to tailor the form of relief to the specific facts of each case. Itbearsnotingthatourconclusionthatthetrialcourt inthepresentcasewillberequiredtoorderremediation of the pollution pursuant to the applicable remediation standard regulations does not necessarily mean that
thetrialcourtisrequiredtoorderstrictcompliancewith the Water Pollution Control Act and its implementing regulations in all cases, no matter what the nature of the alleged violation. See Conservation Commission v. Price, supra, 193 Conn. 430 (‘‘[t]he grant of jurisdictiontoensurecompliancewithastatutehardlysuggests 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’’ [internal quotation marks omitted]). For example, if the commissioner brought an action under § 22a-430 (d) and proved that the defendant had discharged substances into the waters of the state without a permit in violation of the Water Pollution Control Act, but failed to prove that the waters have been polluted, it is possible that, as in Weinberger, upon balancing the equities, a court could determine that the defendant should be allowed to continue making the discharges during the permit application process because discontinuing operations would be extremely costly, the issuance of a permit was likely and allowing the discharges would not undermine the fundamental purpose of the Water Pollution Control Act. We also conclude that, upon finding that a defendant has polluted the waters of the state, the trial court, as a practical matter, necessarily has discretion under § 22a-430 (d) to direct the precise contours and timing of the remediation process. After all, the primary remedy contemplated by the legislature under that provision is ‘‘injunctive relief,’’ which, by its very nature, invokes the equitable authority of the court. Indeed, the commissioner conceded as much in oral argument beforethiscourt.27 Bywayofexample,inapropercase, the court reasonably could elect to set an annual cap on the remediation costs that the defendant will be required to pay. It would not further the purposes of the Water Pollution Control Act to order a remedy that issodraconianandcostlythatitwouldpreventadefendant from contributing to the cost of remediation over thelongtermbyimmediatelybankruptingit.Whenconsidering the cost of remediation in crafting a remedy, however, the trial court’s primary goal should be to maximize the prevention and elimination of pollution, not to minimize the economic impact on the defendant.28 See Starr v. Commissioner of Environmental Protection, supra, 226 Conn. 380 (legislative history of WaterPollutionControlActshowsthatpurposeofproposed legislation was to allow Water Resources Commission,nowincorporatedintodepartment,to‘‘operate more vigorously in issuing orders of abatement and ultimately seeking injunctions toabate water pollution, regardless of concerns of economic feasibility’’); id., 381 (legislature intended that, ‘‘[r]egardless of the cost ofthepollutionabatementmeasuresissuedbythecommission, the measures were to be enforced if in fact the technology existed to enforce them’’).
Finally, we turn to the question of the relief that we should order. The commissioner requests that we vacate the trial court’s orders and remand the case to that court so that it may apply the proper standard in crafting a new remedy. Because the remedy is intertwined with the scope and nature of the pollution at the site, however, and in light of our conclusion that the trial court retains discretion to control the manner of the required remediation, including the timing and, potentially, the cost of compliance, we believe that a new trial is required so that the parties may present evidence on those issues.29 Accordingly, we conclude that the case must be remanded to the trial court for a new trial. II The commissioner also claims that the trial court improperly determined that Thibodeau could not be held personally liable under the responsible corporate officerdoctrineforthecorporatedefendants’civilviolations of the Aquifer Protection Act. Specifically, the trialcourtconcluded that,‘‘inlightof thespecificreference to the [responsible corporate officer] doctrine in [§ 22a-354s (c), governing criminal violations of the Aquifer Protection Act],30 and its absence in the civil . . . statutes . . . the responsible corporate officer doctrine does not apply to the civil aquifer statutes alleged here.’’ (Footnote added.) Because this issue is also likely to arise on remand, we address it. We conclude that the trial court properly determined that Thibodeau may not be held personally liable for the corporatedefendants’civilviolationsoftheAquiferProtection Act under the responsible corporate officer doctrine. Whether the responsible corporate officer doctrine may be applied to violations of the Aquifer Protection Actisaquestionoflawsubjecttoplenaryreview.Celentano v.Rocque,282Conn.645,663,923A.2d709(2007). We begin our analysis with a review of the responsible corporateofficerdoctrine.Underthatdoctrine,acorporate officer may be held personally liable for a corporation’s violation of a statute involving ‘‘a strict liability public welfare [offense]’’; id., 668; when ‘‘(1) the officer is in a position of responsibility that allows that officer to influence corporate policies and activities; (2) there is a nexus between the officer’s actions or inactions in that position and the violation of [the statute] such that the corporate officer influenced the corporate actions that constituted the violation; and (3) the corporate officer’s actions or inactions resulted in the violation.’’ (Internalquotation marksomitted.)Id., 663–64.‘‘Public welfare statutes share three common elements. First, they protect the public health, safety or welfare. . . . Second,theyprotectthepublicfromharmsfromwhich the public cannot protect themselves. . . . Third, public welfare statutes have either a reduced mens rea
requirementorrequirenoneatall.’’(Citationsomitted.) Id., 666–67. This court previously has recognized that ‘‘[t]he responsible corporate officer doctrine is a commonlaw theory of liability.’’ Id., 665. Accordingly, we ordinarily‘‘donotneedtodeterminewhetherthelegislature explicitly has adopted the responsible corporate doctrine in [the statute under review], but rather whether [the statute] is the type of statute to which the doctrine generally may apply.’’ Id. On the basis of these principles, we previously have held that the doctrine applies to violations of the Water Pollution Control Act; BEC Corp. v. Dept. of Environmental Protection, 256 Conn. 602, 618, 775 A.2d 928 (2001); and to violations of General Statutes § 22a-402, governing the inspection and repair of dams. Celentano v. Rocque, supra, 282 Conn. 668. Inthepresentcase,thecommissionerpointsoutthat ‘‘[t]he responsible corporate officer doctrine is a common-lawtheoryofliability.’’Id.,665.Shecontendsthat, because the Aquifer Protection Act is a strict liability public welfare provision—which the defendants do not dispute—it‘‘isthetypeofstatutetowhichthe[responsible corporate officer] doctrine generally may apply.’’ Id. Accordingly, she asserts, the trial court incorrectly concluded that Thibodeau could not be held personally liable under the doctrine because the reference to responsible corporate officers in § 22a-354s (c) implies that the legislature intended to limit the application of the doctrine to that subsection. We are not persuaded by the commissioner’s argument. Although the responsible corporate officer doctrine is a common-law theory of liability, the doctrine generallyisappliedtostatutoryviolations,andwehave repeatedly recognized that its application must be consistentwiththeintentoflegislature.Seeid.,666(definitionof‘‘person’’inGeneralStatutes[Rev.to2007]§ 22a2[c][now§ 22a-2(b)]‘‘evidencesthelegislature’sintent tocastawidenet’’);BECCorp.v.Dept.ofEnvironmental Protection, supra, 256 Conn. 616 (question of whether responsible corporate officer doctrine applies ‘‘rests upon an interpretation of [General Statutes §§] 22a-432 and . . . 22a-423’’). In the present case, the legislature has evinced an intent that, for purposes of the Aquifer Protection Act, the responsible corporate officer doctrine applies only to criminal violations under § 22a-354s (c). See footnote 30 of this opinion. If the legislature had intended for the doctrine to apply to fines for civil violations imposed pursuant to § 22a354s(b),itclearlyknewhowtosayso.SeeM.DeMatteo Construction Co. v. New London, 236 Conn. 710, 717, 674 A.2d 845 (1996) (‘‘[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a differ
ent intention existed’’ [internal quotation marks omitted]); seealso People v. Celotex Corp., 516 F.Supp. 716, 719 (C.D. Ill. 1981) (when one section of federal Clean Air Act expressly provided that responsible corporate officer would be liable for violation of that section, it was ‘‘clear that Congress did not intend that corporate officers be subject to suit’’ under separate section with no such language); People v. Commonwealth Edison Co., 490 F. Supp. 1145, 1148 (N.D. Ill. 1980) (express provisioninonesectionoffederalCleanAirActmaking corporate officers liable for violation ‘‘militates against bringing such individuals within the ambit of [another section] of [that] [a]ct in which such express inclusion is lacking’’). In support of her claim to the contrary, the commissioner points out that a number of courts have rejected the claim that, when the legislature has expressly provided that a responsible corporate officer doctrine is liable only for a criminal violation of a public welfare statute, the courts are prohibited from applying the responsible corporate officer to civil violations. See, e.g., Stillwater of Crown Point Homeowner’s Assn., Inc. v. Stiglich, 999 F. Supp. 2d 1111, 1133 (N.D. Ind. 2014)(responsiblecorporateofficerdoctrineextendsto civil violations of federal Clean Water Act even though criminal provision of that act, unlike civil provision, expressly applies to responsible corporate officers); Newburgh v. Sarna, 690 F. Supp. 2d 136, 163 (S.D.N.Y. 2010) (declining to grant motion to dismiss in favor of individual defendant on ground that he could not be heldpersonallyliableforcivilviolationsoffederalClean Water Act), aff’d in part and appeal dismissed in part, 406 Fed. Appx. 557 (2011).31 Those cases, however, can be traced back to the decision of the United States Court of Appeals for the Sixth Circuit in United States v. Hodges X-Ray, Inc., 759 F.2d 557 (6th Cir. 1985). See Stillwater of Crown Point Homeowner’s Assn., Inc. v. Stiglich, supra, 1133, citing United States v. Hodges XRay, Inc., supra, 560–61; Newburgh v. Sarna, supra, 160–61, citing United States v. Hodges X-Ray, Inc., supra, 561. The individual defendant in Hodges X-Ray, Inc.,claimedthathecouldnotbeheldpersonallyliable for the corporate defendant’s violations of the federal Radiation Control for Health and Safety Act of 1968 because he was not a ‘‘ ‘manufacturer’ ’’ as defined in that act. United States v. Hodges X-Ray, Inc., supra, 560. He contended that, under the seminal cases of United States v. Park, 421 U.S. 658, 673–74, 95 S. Ct. 1903, 44 L. Ed. 2d 489 (1975), and United States v. Dotterweich, 320 U.S. 277, 284, 64 S. Ct. 134, 88 L. Ed. 48 (1943), the responsible corporate officer doctrine applied only to criminal liability. United States v. Hodges X-Ray, Inc., supra, 560–61; see also United States v. Park, supra, 660, 673–74 (corporate officer maybeheldpersonallyliableforviolatingcriminalprovision of federal Food, Drug, and Cosmetic Act when
officer ‘‘had, by reason of his position in the corporation, responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and . . . he failed to do so’’); United Statesv.Dotterweich,supra,284(corporateofficerwho aids and abets violationof criminal provision of federal Food, Drug, and Cosmetic Act can be held personally liable).ThecourtinHodgesX-Ray,Inc.,concludedthat ‘‘the rationale for holding corporate officers criminally responsible for acts of the corporation, which could lead to incarceration, is even more persuasive where only civil liability is involved, which at most would result in a monetary penalty. The fact that a corporate officercouldbesubjectedtocriminalpunishmentupon a showing of a responsible relationship to the acts of a corporation that violate health and safety statutes renders civil liability appropriate as well.’’ (Emphasis inoriginal.) UnitedStates v.HodgesX-Ray, Inc.,supra, 561. The statutory schemes under review in Hodges X-Ray, Inc., Park and Dotterweich, however, did not expresslyprovidethatacorporateofficercouldbeheld liable for violations of the criminal provisions of the relevant statutes. Thus, there was no evidence in those cases that Congress had intended to limit the liability of corporate officers to such violations.32 Because Hodges X-Ray, Inc., Park and Dotterweich do not support the proposition that, when the legislature has expressly provided that an individual defendant may be held personally liable for the violation of a criminal provision of a public welfare statute as a responsible corporate officer, the individual may also be held liable for violations of civil provisions that do not contain such a provision, we find the United States District Court cases on which the commissioner relies to be unpersuasive. Thecommissioneralsopointsoutthatthiscourtconcluded in BEC Corp. v. Dept. of Environmental Protection, supra, 256 Conn. 618, that the responsible corporate officer doctrine applied to civil enforcement proceedings under the Water Pollution Control Act, despite the fact that only the criminal provisions of that act expressly provide that ‘‘person includes any responsible corporate officer or municipal official.’’ GeneralStatutes§ 22a-438(b)through(e).Asthedefendants point out, however, the specific statutes at issue in BEC Corp. were §§ 22a-432 and 22a-423. BEC Corp. v. Dept. of Environmental Protection, supra, 616–17. The criminal liability provision of § 22a-438 (b) was not brought to the court’s attention. Moreover, as we observed in BEC Corp. v. Dept. of Environmental Protection, supra, 617, for purposes of the civil violations described in § 22a-432, a ‘‘ ‘person’ ’’ is defined to include ‘‘any officer . . . of any . . . corporation . . . .’’ General Statutes § 22a-423. Thus, the plain language of the applicable statutes strongly supported our conclusion that a corporate officer could be held liable
for a corporation’s civil violation of § 22a-432, at least if the officer had ‘‘a responsible relationship to a violation of the act.’’ BEC Corp. v. Dept. of Environmental Protection, supra, 619. In contrast, for purposes of the Aquifer Protection Act, ‘‘ ‘person’ ’’ is defined as ‘‘any individual, firm, partnership, association, syndicate, company, trust, corporation, limited liability company, municipality, agency or political or administrative subdivision of the state, or other legal entity of any kind.’’ General Statutes § 22a-2 (b). Although broad, this languagedoesnotsoclearlyincluderesponsiblecorporate officers that it negates the inference that, by expressly including the responsible corporate officer language in § 22a-354s (c), the legislature intended to limit the applicability of the responsible corporate officer doctrine to that subsection.33 Accordingly, we also are not persuaded by this claim.

Outcome: The judgment is reversed and the case is remanded for a new trial in accordance with this opinion.

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