CONNECTICUT BLDG. WRECKING CO. v. CAROTHERS

14181

218 Conn. 580 (1991) | Cited 43 times | Supreme Court of Connecticut | May 7, 1991

The state department of environmental protection(DEP) charged the plaintiffs with operating anddepositing waste at an unpermitted solid waste disposalfacility. The DEP ordered them to cease these illegalactivities and to remove all solid waste exclusive of"clean fill" from the site. After seven days ofhearings, the DEP hearing officer affirmed the order.In the ensuing administrative appeal, the SuperiorCourt affirmed the hearing officer's finding ofliability but refused to review the order itself,ruling that the reasonableness of the order could onlybe challenged in the pending enforcement proceeding.The plaintiffs appealed, challenging (1) the sufficiencyof the evidence for the finding of liability, (2) thetrial court's refusal to review the enforcement orderitself, and (3) the constitutionality of General Statutes(Rev. to 1985) 22a-207 (4) and (6),1 specifically,whether the phrase "location utilized for the ultimatedisposal of wastes" is an impermissibly vague definitionof "solid waste disposal area." We affirm the judgmentwith respect to the first and third issues raised, butreverse with respect to the second.

[218 Conn. 583]

The following facts are not in dispute. In a seriesof orders commencing in September, 1985, the DEPcharged Connecticut Building Wrecking Company, Inc.(CBWC), and its joint owners, Geno and Russell Capozziello,who are brothers, with violations of Public Acts 1985,No. 85-334, 2(b) and (c).2 Those provisions

[218 Conn. 584]

     essentially prohibit, inter alia, "altering" (2 [b]) or"operating" (2 [c]) a solid waste facility that does not

[218 Conn. 585]

     have a permit.3 As a remedy, the PEP ordered theplaintiffs either to remove "all solid waste exclusiveof clean fill" at the site or to close the facilityafter submitting acceptable plans within a prescribedtimetable. The PEP made similar charges with respect tothe same site against at least one other company,Bridgeport Wrecking Company (BWC), which the recordreveals is owned by Thomas Capozziello, another brotherof Russell and Geno. BWC did not, however, appeal theorder against it. After reaching a tentative settlementwith the PEP, CBWC submitted documents in connectionwith the required closure plans. The PEP, however,considered the documents inadequate and untimely. Itinsisted that the plaintiffs clear the site.

The "site" ordered cleared is a sloping piece of landrunning behind a row of houses on Clearview Drive and

[218 Conn. 586]

     Clearview Circle in Bridgeport. The DEP's "principalenvironmental analyst," Thomas Pregman, estimated thatthe dumped materials or "fill" covering the site areameasured approximately 500 feet in length, 35 to 40feet in width and 20 to 30 feet in height. The fillcovered the backyards of nine different but contiguouslots of land with nine different owners. No solid wastepermit of any kind was ever sought by or issued toeither the plaintiffs or any of the resident owners.

Both the DEP and the plaintiffs agree that truckloadsof material were dumped on the site by CBWC as well asby other companies. Some residents initially welcomedthe dumping as a means of leveling the steep slope oftheir backyards. The plaintiffs do not dispute thepresence of "solid waste" at the site, including wood,tires, stumps and leaves. The hearing officer madefactual findings that "[t]he limits of the solid wastefill are unknown" and that "[t]he sources of most ofthis waste are undetermined."

I

Before proceeding to address the substance of thehearing officer's conclusions, we must discuss theplaintiffs' claim that the statute they are chargedwith violating is unconstitutionally vague.4

The DEP found that the plaintiffs had violated 2(b)and (c) of No. 85-334 of the 1985 Public Acts, subsequentlymodified by No. 85-661, 147 of the 1985 PublicActs and codified as General Statutes 22a-208a (b) and(c).5 Under any version of the statute in effect

[218 Conn. 587]

     during the period in question, it was illegal to alteror operate a "solid waste facility" that did not havethe requisite permits the statutes or regulationsrequired. Because the plaintiffs' conduct would notviolate the statute unless the "facility" at which theydumped was required to have a permit, the pertinentissue involves the statutory definition of "solid wastefacility."

General Statutes (Rev. to 1985) 22a-207 (4) defines"[s]olid waste facility" as "any solid waste disposalarea . . . if such area . . . handles more than five tons ayear of solid waste." Section 22a-207 (6) defines "[s]olidwaste disposal area" as "the location utilized for ultimatedisposal of wastes as approved by the department."6The plaintiffs argue that the word "location"

[218 Conn. 588]

     makes the entire statutory scheme unconstitutionally vague onits face. They also argue that the word "location" makes thestatutory scheme unconstitutionally vague when applied to theClearview Drive site, which consists of portions of nineseparately owned lots of land.

When a litigant challenges a statute as void forvagueness under the United States constitution, weconfine our inquiry to the statute's applicability tothe facts of the case unless the statute could intrudeupon fundamental constitutional guarantees, such asfirst amendment rights. State v. Cavallo, 200 Conn. 664,670, 513 A.2d 646 (1986). A statute may beunconstitutionally vague in violation of due processwithout impinging upon such fundamental guarantees, butin such a case, a litigant lacks standing to challengethe statute's vagueness unless his own due processrights would be violated by its application to him. Id.An exception to this general rule arises in those rarecases when the statute's vagueness itself violates dueprocess by making the statute impossible to obey. See,e.g. Champlin Refining Co. v. Corporation Commissionsof Oklahoma, 286 U.S. 210, 243, 52 S.Ct. 559, 76 L.Ed.1062 (1932); cf. Lanzetta v. New Jersey, 306 U.S. 451,453, 59 S.Ct. 618, 83 L.Ed. 888 (1939). In order toprevent this latter difficulty, we will, if we have notpreviously construed the statute, "search for `aneffective and constitutional construction thatreasonably accords with the legislature's underlyingintent'" State v. Floyd, 217 Conn. 73, 79,584 A.2d 1157 (1991), quoting State v. Breton, 212 Conn. 258,269, 562 A.2d 1060 (1989); thereby dispelling anyclaimed constitutional violation. See, e.g., Ward v.Rock Against Racism, 491 U.S. 781, 795-76, 109 S.Ct.2746, 105 L.Ed.2d 661, reh. denied, 492 U.S. 937, 110S.Ct. 23, 106 L.Ed.2d 636 (1989) (the United States Supreme

[218 Conn. 589]

     Court, in evaluating a facial challenge to a state law, willconsider any limiting instruction proffered by a state court).

The plaintiffs contend that, as written, 22a-207 (4)and (6) make it impossible for any dumper to obey GeneralStatutes (Rev. to 1989) 22a-208a (b)and (c). Sincea dumpsite "location" is not a "solid waste disposalfacility" unless it "handles more than five tons a yearof solid waste," the plaintiffs maintain that a dumperwill be at a loss when he tries to determine whetherhis disposal activities in a given "area" or "location"have triggered the "five ton" permit requirement. Thisargument suggests that dumping one ton in each of fivecity neighborhoods could be dumping five tons in one"location" if the "location" is the entire city.

"The court must use common sense in construingstatutes and must assume that a reasonable and rationalresult was intended by the promulgating legislature."Windham First Taxing District v. Windham, 208 Conn. 543,553, 546 A.2d 226 (1988). The statute refers to an"area that handles" and a "location utilized for" solidwaste. Without delimiting the full scope of the term"location"; cf. Board of Education v. Freedomof Information Commission, 217 Conn. 153, 161,585 A.2d 82 (1991); Cos Cob Volunteer Fire Co. No. 1, Inc. v.Freedom of Information Commission, 212 Conn. 100, 106,561 A.2d 429 (1989); we can reasonably construe 22a-207(6) as limited to contiguous property that is intendedto or reasonably appears to act as a single dumpsite.So construed, the statutory scheme is not "impossible"to obey; the still puzzled would-be dumper may seekfurther clarification from the DEP, the agencyresponsible for administering the statute. "[S]tatutesare not automatically invalidated as vague simplybecause difficulty is found in determining whethercertain marginal offenses fall within their language."United States v. National Dairy Corporation,

[218 Conn. 590]

     372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1962),reh. denied, 372 U.S. 961, 83 S.Ct. 1011, 10 L.Ed.2d13 (1963). This is especially true when the statuteaffects regulated activity, such as dumping, for "theregulated enterprise may have the ability to clarifythe meaning of the regulation by its own inquiry, or byresort to an administrative process." Hoffman Estatesv. Flipside, Hoffman Estates, 455 U.S. 489, 498, 102S.Ct. 1186, 71 L.Ed.2d 362, reh. denied, 456 U.S. 950,102 S.Ct. 2023, 72 L.Ed.2d 476 (1982); see also Kolenderv. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct.1855, 75 L.Ed.2d 903 (1983); Papachristou v. Jacksonville,405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d110 (1972); cf. Boyce Motor Lines, Inc. v. UnitedStates, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367(1952). By contrast, the statute at issue in ChamplinRefining Co. v. Corporation Commissions of Oklahoma,supra, would have required the refining company toconduct an exhaustive economic survey of its operationsin order to discover whether it was operating"wastefully," even assuming that the term "wasteful"was capable of any objective meaning.

Although we conclude that 22a-207 (6), as construed,is sufficiently clear to preserve the constitutionalityof 22a-208a (b)and (c), the plaintiffs did not have thebenefit of our limiting construction at the time theyare alleged to have violated the statute. They are,therefore, entitled to contend that the statute wasunconstitutionally vague as applied to the facts oftheir case.

"A party attacking the constitutionality of a validlyenacted statute bears the heavy burden of proving itsunconstitutionality beyond a reasonable doubt. State v.Breton, [supra]; Zapata v. Burns, 207 Conn. 496, 507-508,542 A.2d 700 (1988)." State v. Floyd, supra, 79. Theconcept of unconstitutional vagueness derives fromthe guarantees of due process contained in the fifthand fourteenth amendments to the United States

[218 Conn. 591]

     constitution. See Hoffman Estates v. Flipside, HoffmanEstates, supra, 498-504; Grayned v. Rockford, 408 U.S. 104,108-109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Dueprocess requires that laws "give the person of ordinaryintelligence a reasonable opportunity to know what isprohibited" and "provide explicit standards for thosewho apply them" in order to prevent the risk ofarbitrary and discriminatory enforcement. Grayned v.Rockford, supra, 108; see also Smith v. Goguen,415 U.S. 566, 573, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974);United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct.1538, 91 L.Ed. 1877 (1946); Keogh v. Bridgeport,187 Conn. 53, 60, 444 A.2d 225 (1982).7 To demonstratethat a statute is unconstitutionally vague as applied to him,a litigant must therefore demonstrate beyond a reasonabledoubt that he had inadequate notice of what was prohibitedor that he was the victim of arbitrary and discriminatoryenforcement. The plaintiffs can do neither.

To demonstrate his lack of notice of what wasprohibited, the challenging party must establish that aperson of ordinary intelligence would not be able toknow whether his conduct is permitted or prohibitedunder the statute. Bottone v. Westport, 209 Conn. 652,658, 553 A.2d 576 (1989). "`The test is whether thelanguage conveys sufficiently definite warning as tothe proscribed conduct when measured by common understandingand practices.'" State v. Chetcuti, 173 Conn. 165, 167,377 A.2d 263 (1977), quoting Jordan v. De George, 341 U.S. 223,231-32, 71 S.Ct. 703, 95 L.Ed. 886 (1950). The PEP'sunchallenged photographic exhibits depict an enormousmountain ridge of waste spanning the nine Clearview Drive

[218 Conn. 592]

     backyards without visible demarcations of any kind.8 Noreasonable person could view such a scene, as the plaintiffsadmittedly did, and perceive nine separate dumpsites. Theordinary person could not fail to realize that dumpingin any one or more of the nine backyards would constitutedumping in a single "location."9

To demonstrate that the statute's vagueness gives anagency unbridled discretion to enforce the statutearbitrarily and discriminatorily, the challenging partymust establish that he was the victim of such arbitraryand discriminatory enforcement. See State v. White,204 Conn. 410, 417, 528 A.2d 811 (1987); cf. HoffmanEstates v. Flipside, Hoffman Estates, supra, 503. Thefinal hearing officer specifically concluded that theplaintiffs "[had] not alleged any facts to support afinding of invidious prosecution." The plaintiffs havenot contested that conclusion on appeal and cannot nowbe heard to claim that the statute sanctioned arbitraryenforcement against them. State v. White, supra.

[218 Conn. 593]

II

The plaintiffs next claim that the PEP's ordersshould be reversed as "clearly erroneous in view of thereliable, probative, and substantial evidence on thewhole record." General Statutes 4-183 (j)(5).

"The `substantial evidence' rule governs judicialreview of administrative factfinding under GeneralStatutes (Rev. to 1987) 4-183 (g) . . . . An administrativefinding is supported by `substantial evidence'if the record affords a `"`substantial basis of factfrom which the fact in issue can be reasonablyinferred.'"' . . . Such a standard of review allowsless room for judicial scrutiny than does the `weightof the evidence' rule or the `clearly erroneous'rule . . . . In determining whether an administrativefinding is supported by substantial evidence,' a court mustdefer to the agency's assessment of the credibility of thewitnesses and to the agency's right to believe ordisbelieve the evidence presented by any witness, evenan expert, in whole or in part . . . . An agencycomposed of [experts] is entitled, furthermore, to relyon its own expertise within the area of its professionalcompetence . . . . Basically, an agency is not `required touse in any particular fashion any of the materials presentedto it so long as the conduct of the hearing is fundamentallyfair.'" (Citations omitted.) Briggs v. State EmployeesRetirement Commission, 210 Conn. 214, 217-18,554 A.2d 229 (1989); see also Connecticut Light & Power Co. v.Department of Public Utility Control, 216 Conn. 627,639-40, 583 A.2d 906 (1990).

The plaintiffs contend that "under Connecticut law, inorder to operate a `solid waste disposal area,' a personmust (1) utilize a location; (2) for ultimate disposal ofsolid waste; (3) at the rate of at least five tonsper year." They further contend that "solid waste" is waste

[218 Conn. 594]

     exclusive of "clean fill" as defined by administrativeregulations, so that in order to meet its burden ofproof, the DEP had to prove that they dumped more thanfive tons per year of waste exclusive of clean fill.They maintain, in conclusion, that the DEP failed tosatisfy this burden. The plaintiffs' contentions arecompletely without merit, however, because theyfundamentally misconstrue both the statute and theregulations.

The plaintiffs were charged with violations of 2(b)and (c) of No. 85-334 of the 1985 Public Acts, formerlyGeneral Statutes (Rev. to 1985) 22a-208 (b), subsequentlyGeneral Statutes (Rev. to 1987) 22a-208a (b) and (c).Under any version of the statute, the plaintiffs would beliable for its violation if they either altered, e.g., byadding to,10 a preexisting solid waste facility thatdid not itself have a construction permit (subsection [b]of the statute), or if they "operated" a solid waste facilitywithout a permit to do so (subsection [c] of the statute).11

The DEP could have demonstrated the plaintiffs' liabilityeven if the plaintiffs had not themselves dumpeda single ounce of anything, solid waste or otherwise,at the dump, if it were able to show that the plaintiffshad "operated" the dump, e.g., if they had managed it,supervised dumping by other companies, controlled thecontours of the site by spreading the waste anddirecting the location of new loads, or performed other

[218 Conn. 595]

     acts that the administrative regulations require "certified"operators of solid waste facilities toperform.12 The final hearing officer's findingswith respect to the individual liability of Geno andRussell Capozziello13 have significant support inthe administrative record and might have supported anultimate conclusion that CBWC was also liable as suchan "operator" of the facility. Instead, however, thefinal hearing officer assessed CBWC's liability basedon his finding that the plaintiffs had "operated"the site in question "by dumping." For this reasonalone, we shall proceed to evaluate the substantialityof the evidence in support of the hearing officer'sfinding that the plaintiffs "operated" a solid wastefacility "by dumping."

A

As the plaintiffs point out, the first question iswhether the DEP proved that the facility was a "solidwaste facility." We have already construed 22a-207 (6)to define a "solid waste disposal area" as including alocation consisting of contiguous property that isintended to or reasonably appears to act as a singledumpsite "utilized for ultimate disposal of wastes,"14and have concluded that the Clearview Drive dumpsite

[218 Conn. 596]

     was such an "area." To prove that the Clearview Drivedumpsite was a "solid waste disposal facility," theDEP still had to prove, however, that the site "handledmore than five tons a year of solid waste."

Section 22a-207 (3) defines "solid waste" as`unwanted or discarded materials, including solid, liquid,semisolid or contained gaseous material." Theplaintiffs do not dispute the presence at the site ofdiscarded "solid material," nor, indeed, that theydumped such "solid material" at the site.15 Instead,they assert that the hearing officer's decision was notbased on substantial evidence because the DEP did notprove the presence of more than five tons of materialsother than "clean fill," which, they assert in afootnote, "is not, by definition, `solid waste.'"

[218 Conn. 597]

The plaintiffs are incorrect. The statutes do notmention "clean fill," and the only statutorydefinition of "solid waste" is the broad definition,cited above, in 22a-207 (3). The DEP regulationspromulgated pursuant to General Statutes 22a-209 do notprovide any definition of "solid waste," much less anarrow definition of "solid waste" excluding "cleanfill," and, indeed, such a contradictory regulationmight exceed the commissioner's statutory authority.See General Statutes (Rev. to 1985) 22a-209.16

The DEP regulations do address "clean fill," but notin the sense asserted by the plaintiffs. Section22a-209-1 of the Regulations of Connecticut State Agenciesfirst defines "clean fill" as "natural soil, rock,brick, ceramics, concrete, and asphalt paving fragmentswhich are virtually inert and pose neither a pollution threatto ground or surface waters nor a fire hazard."Next, 22a-209-3 of the Regulations of Connecticut StateAgencies provides: "These regulations apply to theoperation and management of all existing and proposedsolid waste facilities, and to all applications for apermit or contract approval which are submitted afteror are in process on the effective date of these regulations.Areas which are solely for the disposal of clean fillshall be exempt from the provisions of these regulations."(Emphasis added.) By implication, areas for the disposal

[218 Conn. 598]

     of solid wastes that include both clean fill and otherwastes are not exempt from the regulatory requirements.

The prohibition on combined dumping is made clear bythe only other regulation using the term "clean fill,"22a-209-1. That section defines "bulky waste" as"landclearing debris and waste resulting directly fromdemolition activities other than clean fill" and thenincludes "bulky waste" within the definition of "specialwastes" or "non-hazardous solid wastes which requirespecial handling . . . ." Next, 22a-209-8 (c) ofthe Regulations of Connecticut State Agencies provides:"The combined disposal of special wastes with othersolid wastes or special wastes is prohibited unlessspecifically approved in writing by the Commissioner."Thus, "bulky waste" and "clean fill" may not be disposedof together without special approval by the commissioner.

These regulations make it clear that "clean fill" issolid waste within the statute. The question is notwhether there were five tons of waste exclusive ofclean fill where the plaintiffs dumped; the question iswhether there were five tons of any solid waste at thatsite, so long as clean fill was not the only waste atthe site. If the unpermitted site contained more thanfive tons of solid waste, deposited within one year,the statutes and regulations made it illegal for theplaintiffs to "operate" or "alter" the site by addinganything, even less than five tons, to the site.

The facts of this case illustrate the legislativepurpose behind imposing cleanup liability on even thosewho engage in merely negligent dumping of otherwiseinnocuous materials. Decomposition of solid waste otherthan clean fill creates demonstrated environmentalhazards. If decomposable solid waste and clean fill arecombined, it becomes difficult to discover the culprit

[218 Conn. 599]

     and assign liability. Presumably for that reason, theregulations prohibit combination dumps without permission;requiring DEP permission enables the PEP to exercise someoversight. Once a combination dump has been created withoutDEP oversight, additional deposits of any material,including clean fill, make it more difficult to remove thedecomposing materials and, if necessary, clean up the entirecombination dump, as well as further complicating discoveryof the persons responsible.

B

The plaintiffs have never claimed that the whole ninebackyard site consisted entirely of clean fill. If,then, the dumpsite contained more than five tons ofsolid waste deposited during one year, irrespective ofthe quantity of clean fill within that waste, theplaintiffs have violated General Statutes 22a-208a (b).

It would have been reasonable for the hearing officerto have inferred from the dimensions of the fill, thetestimony concerning its contents; e.g., truckloads ofleaves, the debris from a bedding store destroyed byfire, the rubble of a demolished housing project, alldeposited during 1985; as well as from his own on-siteinspection of the dump, that the fill as a wholecontained five tons of solid waste deposited within oneyear. The hearing officer, however, apparently basedhis conclusion that the plaintiffs "operated" thefacility "by dumping" at the site solely upon theunnecessary factual finding that they had dumped atleast five tons of solid waste at the site during theperiod from April to October, 1985, without deciding,as indeed he had no need to do, what proportion of thatsolid waste was clean fill. The plaintiffs can prevail,therefore, only if this finding is without substantialsupport in the record as a whole.

[218 Conn. 600]

The five ton requirement was first raised in passingduring the plaintiffs' cross-examination of the DEP'sexpert, Thomas Pregman, a senior environmental analystwith eleven years of experience in solid wastemanagement. Responding to a request that he appraisethe relative condition of various portions of the site,Pregman answered: "We consider the whole - all theproperty as the one site." He continued, "Anything inexcess of five tons of waste on all of the property isa violation." Upon the hearing officer's inquiry, Pregmancommented, "I think it's - you have - basically onegood size truckload is five tons."

The hearing officer cited certain evidence in supportof his inference that the dumpsite contained at leastfive tons of solid waste: (1) the size of the dumpsite(500 feet in length, 35 to 40 feet in width, and 20 to30 feet in height); (2) the statements of numerousresident witnesses that they had viewed the plaintiffs'"trucks" dump at the site; and (3) Pregman's statementthat one good size truckload" weighed five tons.

The plaintiffs attack the first item of evidence byarguing that the "site" at which they dumped consistedof only one or two individual backyards, not the wholenine backyard dumpsite. We have already rejected thatargument. In their remaining challenge to the sufficiencyof the evidence, the plaintiffs claim that theresidents' testimony and Pregman's casual assertionthat "one good size truckload is five tons" were tooimprecise and unreliable to constitute "substantialevidence" that the five ton requirement had been met,without a further description of the size of a "goodtruckload" or evidence that the trucks viewed bythe witnesses would meet that description.

The Uniform Administrative Procedure Act (UAPA)prescribes that review of an administrative adjudicativedecision should be "on the whole record." General

[218 Conn. 601]

     Statutes 4-183 (j). "`Substantial evidence' exists ifthe administrative record affords'"'" a substantialbasis of fact from which the fact in issue can bereasonably inferred.'"'" (Citations omitted.)Connecticut Light & Power Co. v. Department of PublicUtility Control, supra, 639-40. If, therefore, thespecific evidence cited in support of an administrativeofficer's ultimate factual finding is inadequate tosupport that ultimate factual conclusion, a reviewingcourt should search the record of the entireproceedings to determine whether it does in factcontain substantial evidence from which the ultimatefactual finding could reasonably be inferred. Norwichv. Norwich Fire Fighters, 173 Conn. 210, 214,377 A.2d 290 (1977); see also Connecticut Light & Power Co. v.Department of Public Utility Control, supra; Grillo v.Zoning Board of Appeals, 206 Conn. 362, 369,537 A.2d 1030 (1988); Persico v. Maher, 191 Conn. 384, 409,465 A.2d 308 (1983); Ward v. Zoning Board of Appeals,153 Conn. 141, 144, 215 A.2d 104 (1965). Thus, if theadministrative record provides substantial evidenceupon which the hearing officer could reasonably havebased his finding that the plaintiffs dumped at leastfive tons at the site within one year, the decisionmust be upheld.

The most useful additional evidence contained in therecord comes from the individual plaintiffs themselves.Testifying in his own behalf, Russell Capozziellodescribed CBWC's activities. Asked how he reached theproperty of Joseph Eppes, a portion of the site CBWCadmitted using as a dump, Russell stated: "We wouldcome down Clearview Drive with our trucks." (Emphasisadded.) He recollected that he said to Eppes:"`Is it possible that I could fit my company's bigtrailers between your house and the next house and useyour driveway?'" (Emphasis added.) He described how hefinally got his "trailer" to Eppes' property.

[218 Conn. 602]

Russell went on to say that he had used "tractor/trailerdump trucks" to dump behind Eppes' house.Each tractor/trailer, he explained, held twenty cubicyards, and his company had dumped forty-five loads ofthat size.17 The loads were generated from "[v]ariousdemolition jobs within the city of Bridgeport,"where CBWC had been hired to demolish buildings. Heclaimed that CBWC dumped on and off for only threeweeks, although on cross-examination it was shown thatthe Bedding Shack, which CBWC dumped at the site, wasdemolished in June, 1985, whereas CBWC first reacheddumping agreements with two residents in April, 1985.

Further describing his trucks' capacity, Russellexplained that demolition of the Bedding Shack, a concretebuilding, generated twenty to twenty-five cubicyards of demolition debris; because of the weight ofthe debris, it was carried in five or six loads. Thatbuilding was a "very small building." As a general rule,he explained, a one-story, forty by seventy foot blockbuilding and a two-story wood frame building each generate

[218 Conn. 603]

     approximately twenty cubic yards of demolition debris. "Onetruck," he testified, holds twenty cubic yards, although asolid load like concrete might require more truckloads.

On redirect, Russell testified concerning seventeendifferent buildings demolished by CBWC within therelevant time period. He was able to remember the volumeof demolition debris generated in each case, butcould not remember where it had been dumped. Total fillgenerated by these demolition jobs was approximatelyfour hundred cubic yards.

The demolition permits entered into evidence statedthat the debris was to be taken to legitimate locallandfills, especially the D'Addario landfill inMilford. The DEP then offered the business records ofthat landfill which showed essentially no entries fordumping tickets purchased during the time the seventeenbuildings were demolished. The ticket-seller, WilliamHaug, also explained that in his record keeping, hereferred to ten wheeler trucks as "fifteen yards" andtrailers as "thirty yards." According to him, a trailerheld thirty cubic yards of material. CBWC recalledRussell to the stand, and he then justified thediscrepancy in evidence by explaining that he often gotaccess to the D'Addario dumps without tickets becausehe knew the owner. He could not, however, recall thedates of any such occasions.

This damaging testimony came from the plaintiffsthemselves. DEP witnesses, including Clearview Driveresidents, gave additional testimony that was fiercelydenied by the plaintiffs, who insisted that theiraccusers were either "lying" or confusing them withtheir allegedly "look-alike" brothers, Thomas, owner ofBWC, and Dennis, owner of New England Demolition. Inits memorandum of decision, the trial court recited theresidents' testimony at length. Of particular note

[218 Conn. 604]

     are statements by John Karmolinsky that he saw "anumber of trucks" owned by CBWC dumping rotted leaves;statements by Elbert Barnes that he saw CBWC dump "theBedding Shack," and "leaves, scrub," and both brickand wood houses that had been demolished; andstatements by Eppes that, on his property, "they"dumped "Beardsley Terrace" (a demolished housingproject or apartment building), "[o]n Mr. Barnes' yard,"they dumped "a load of wood and leaves and steel barsand things," and on the property of "George [Bottone]and Eddie [Fay]" (two contiguous lot owners), "wood andleaves and a refrigerator."

The DEP also offered testimony by Lawrence Morgan, apolice officer called to the site by Manuel Rocha whohad returned from vacation to find his yard filled withwood and other debris. Morgan testified that he saw"very large dump trucks, not the square type, but theelongated type dump trucks" exiting from ClearviewDrive, and that a driver of one truck told him heworked for CBWC and Russell Capozziello.

In summary, Russell admitted that CBWC had dumpedforty-five twenty cubic yard loads on the dumpsitefor a total of 900 cubic yards. According to his owntestimony, this deposit was the equivalent of forty-fivetwo-story wood frame houses. The DEP's evidenceindicated that at least seventeen houses were probablyincluded in those forty-five loads. This court may notconsider facts not in evidence, but neither is itrequired to suspend all common sense. We conclude thatthe hearing officer's finding, that the plaintiffsdumped at least five tons of solid waste at the site,was reasonably inferred from the testimony and otherevidence adduced.18

[218 Conn. 605]

Having concluded that the hearing officer's assessmentof liability against the plaintiffs was reasonable, thetrial court then declined to review the reasonableness ofthe agency's order requiring the plaintiffs to clear allsolid waste exclusive of clean fill from the site. Itconcluded that the order's "reasonableness" was merely apredicate for its enforceability, and should be reviewedin the context of an enforcement proceeding brought by theDEP if the plaintiffs did not comply with the order. We disagree.

A

Under the UAPA, a court "shall affirm the decision ofthe agency unless the court finds that substantialrights of the person appealing have been prejudicedbecause the administrative . . . decisions are . . .arbitrary or capricious or characterized by abuse ofdiscretion or clearly unwarranted exercise ofdiscretion." (Emphasis added.) General Statutes 4-183(j). The administrative decision in this case includeda "final order" that the "[r]espondents shall removeall solid waste, except clean fill," from "the site"and that the "[r]espondents shall restore the site tothe conditions that existed before solid waste wasdisposed there." By affirming the administrative decisionwithout evaluating the cleanup order contained within it,the trial court failed to complete the judicial reviewrequired by 4-183 (j). We therefore remand the case tothe trial court for review of the cleanup order itself.

B

On remand, the trial court must conduct its ownreview of the cleanup order. In the interests of judicial

[218 Conn. 606]

     economy, however, we will discuss the pertinent factorsthat the trial court should apply in evaluating the order.

In their petition to the trial court, the plaintiffscontended that the cleanup order exceeded the agency'sauthority and that it constituted an abuse ofdiscretion because the DEP did not join other allegedlyindispensable parties, namely, the other persons whodumped at the site. In essence, the plaintiffs claimthat the order was an "abuse of discretion" because itwas unreasonable for the DEP to require them to removeall the waste at the site when the DEP did not disputethat others had also dumped waste at the site,especially after the DEP hearing officer had denied theplaintiffs' request to have other dumpers "joined" inthe administrative proceeding.

The DEP contends, citing General Statutes 22a-6a(b),19 that once a violation of the statute had beenestablished, the plaintiffs were jointly and severallyresponsible for cleanup of the entire site, althoughentitled to seek contribution on their own behalf fromothers also responsible. We note that 22a-6a (b) appearsto be addressed to suits for damages brought by thecommissioner, not to the propriety of remedial ordersissued by the commissioner.20 Because 22a-6a

[218 Conn. 607]

     was enacted after the 1971 environmental legislationwhich included the Solid Waste Management Act, GeneralStatutes 22a-207 through 22a-256ee, in order tostrengthen the commissioner's enforcement powers; see,e.g., remarks of Senator Philip N. Costello, Jr., 16 S.Proc., Pt. 8, 1973 Sess., p. 3543; remarks of RepresentativeRichard H. Wagner, 16 H.R. Proc., Pt. 15, 1973 Sess.,pp. 7780-81; testimony of Daniel Lufkin, commissioner ofenvironmental protection, concerning the bill'sdrafting, Conn. Joint Standing Committee Hearings,Environment, Pt. 1, 1973 Sess., pp. 264-67; we conclude,however, that the legislature did not intend by itsenactment to preclude application of the common lawprinciple of joint and several liability in the context ofremedial orders.

In the related field of hazardous waste legislation,the federal courts> have consistently applied the commonlaw principle of joint and several liability, with somelimitations, as expressed in the Restatement (Second)of Torts, 433A, 433B, 879 and 881, to factual scenarioscomparable to the one before us. See, e.g., O'Neil v.Picillo, 883 F.2d 176 (1st Cir. 1989), cert. denied subnom. American Cyanamid Co. v. O'Neil, 493 U.S. 1071, 110S.Ct. 1115, 107 L.Ed.2d 1022 (1990); United States v. A & FMaterials Co., 578 F. Sup. 1249, 1255 (S.D. RI. 1984); seeso, applying a different adaptation of the Restatement principles,United States v. Western Processing Co, 734 F. Sup. 930(W.D. Wa. 1990); United States v. Stringfellow, 661 F. Sup. 1053

[218 Conn. 608]

     (C.D. Cal. 1987). Although the federal hazardous wastestatutes at issue in those cases; the Resource Conservationand Recovery Act, 42 U.S.C. § 6901 through 6987;the Comprehensive Environmental Response, Compensationand Liability Act, 42 U.S.C. § 9601 through 9662; aresubstantially different from our own Solid WasteManagement Act, the problems of detecting causation andassigning responsibility are present in theirapplication as they are in ours. We are persuaded,therefore, that judicial review of any environmentalcleanup order should be conducted with reference to theprinciples of joint and several liability, as limitedby the doctrine of apportionment, expressed in thoseRestatement sections.

Section 433B of the Restatement (Second) of Tortsprovides: "Burden of Proof. (1) Except as stated inSub-sections (2) and (8), the burden of proof that thetortious conduct of the defendant has caused the harmto the plaintiff is upon the plaintiff. (2) Where thetortious conduct of two or more actors has combined tobring about harm to the plaintiff, and one or more ofthe actors seeks to limit his liability on the groundthat the harm is capable of apportionment among them,the burden of proof as to the apportionment is uponeach actor. (3) Where the conduct of two or more actorsis tortious, and it is proved that harm has been causedto the plaintiff by only one of them, but there isuncertainty as to which one has caused it, the burdenis upon each such actor to prove that he has not causedthe harm."21 (Emphasis added.) Section 433A ofthe Restatement provides: "Apportionment of Harm toCauses. (1) Damages for harm are to be apportioned

[218 Conn. 609]

     among two or more causes where (a) there are distinctharms, or (b)there is a reasonable basis for determiningthe contribution of each cause to a single harm.(2) Damages for any other harm cannot be apportionedamong two or more

As part of its review of the DEP cleanup order inthis case, the trial court should determine whetherthe agency ever addressed the issue of combined oralternative causes for the environmental harm caused andmade the requisite findings necessary for imposing uponthe plaintiffs responsibility for cleaning up the wastedeposited by other dumpers. Only in the event thatthere is no reasonable basis for apportionment of thedamages caused to the environment among those whoseillegal activities have contributed to such harm wouldjoint and several liability be appropriate. Restatement(Second), Torts 433A. If the record on these issues isinadequate, the proper course for the trial court wouldbe to remand the matter for further proceedings onthose issues. General Statutes 4-183 (j); see, e.g.,Harrison v. Commissioner, 204 Conn. 672, 679,529 A.2d 188 (1987); Department of Health Services v. Commissionon Human Rights & Opportunities, 198 Conn. 479, 488,503 A.2d 1151 (1986); Feinson v. ConservationCommission, 180 Conn. 421, 429-30, 429 A.2d 910 (1980).

If, after applying these considerations, the trialcourt finds that the scope of the cleanup order issuedto the plaintiffs constituted an abuse of agency discretion,it should vacate that portion of the order requiring the

[218 Conn. 610]

     plaintiffs to clear the site and remand the matter tothe administrative agency for either a modification ofthe order with or without additional hearings, or, ifthe agency so chooses, dismissal of the order.

Although we affirm the judgment with respect to theissue of liability, we reverse the portion of the judgmentin which the trial court declined to review theDEP remedial orders and we remand the case to the trialcourt for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

1. Between April and September, 1985, General Statutes(Rev. to 1985) 22a-207 (4) and (6) provided: "(4)`Solid waste facility' means any solid waste disposalarea, volume reduction plant or resource recoveryfacility operated by any municipal or regionalauthority or any person if such area, plant or facilityhandles more than five tons a year of solid waste. . . "(6) `Solid waste disposal area' means the location utilizedfor ultimate disposal of wastes as approved by the department."

2. The PEP orders allege violations of No. 85-334,2 of the 1985 Public Acts, subsequently amended by No.85-613, 147, of the 1985 Public Acts and then codified asGeneral Statutes (Rev. to 1987) 22a-208 (b)and (c),later renumbered and revised as General Statutes (Rev.to 1991) 22a-208a (b)and (c). Number 85-334, 2 of the1985 Public Acts was not effective until either May 22,1985 (the date it was passed), or June 16, 1985 (thedate it was signed). Public Acts 1985, No. 85-334, 8.Number 85-613, 147 of the 1985 Public Acts, whichamended No. 85-334, 2, was effective as of either June5, 1985 (the date it was passed), or July 10, 1985 (thedate it was signed). Public Acts 1985, No. 85-613, 154.The hearing officer based his decision on a finding ofillegal acts committed between April and September,1985. While the plaintiffs do not address this chronologicaldiscrepancy directly, parts of their argumentappear to focus upon the effective date of No. 85-334of the 1985 Public Acts. We note, however, that thealleged violations of No. 85-334, 2 of the 1985 PublicActs would also have violated preexisting GeneralStatutes (Rev. to 1985) 22a-208 (c). The substantivechanges to law contained in No. 85-334, 2, of the 1985Public Acts are generally not relevant to the issuesdisputed by the plaintiffs. We need not, therefore,consider whether the changes contained in the 1985enactments, each of which provided that it should "takeeffect from its passage"; Public Acts 1985, No. 85-334,8; Public Acts 1985, No. 85-613, 154; were intended tobe retroactive to the date of passage prior to the datethose acts were approved by the governor. The three different versions of the statute in effectduring the period in question (April through September,1985), are as follows. In April, 1985, General Statutes (Rev. to 1985)22a-208 (c) provided: "No solid waste facility shall bebuilt, established or altered after July 1, 1971, untilthe plan and design and method of operation of the samehave been filed with the department and approved by thecommissioner by the issuance of a permit, provided,nothing in this chapter or in chapter 446e shall beconstrued to limit the right of any local governingbody to regulate, through zoning, land usage for solidwaste disposal. No solid waste facility shall beoperated on or after October 1, 1984, unless the owneror operator of such facility has filed a closure planwith the commissioner which he has approved as incompliance with regulatory standards adopted pursuantto section 22a-209. The commissioner shall send awritten notification of any application for a permit tothe chief elected official of each municipality in whichthe proposed facility is to be located within five businessdays of the date on which any such application is filed." Public Acts 1985, No. 85-334, 2, passed on May 22,1985 and signed into law on June 16, 1985, amendedGeneral Statutes 22a-208 by changing former subsection(c) to (b)and adding a new subsection (c), as follows:"(b)No solid waste facility shall be built orestablished and no solid waste facility for which apermit to construct is required shall be altered afterJuly 1, 1971, until the plan, design and method ofoperation of such facility have been filed with thedepartment and approved by the commissioner by theissuance of a permit to construct, provided, nothing inthis act or chapters 446d and 446e of the generalstatutes shall be construed to limit the right of anylocal governing body to regulate, through zoning, landusage for solid waste disposal. The commissioner shallsend a written notification of any application for apermit to construct to the chief elected official ofeach municipality in which the proposed facility is tobe located, within five business days of the date onwhich any such application is filed. "(c) No solid waste facility for which a permit toconstruct is required shall be operated on and afterthe effective date of this act, except for performancetesting approved by the commissioner, unless suchfacility has been issued a permit to operate. Thecommissioner may issue such permit upon determinationthat the facility (1) will be operated in accordancewith applicable laws or regulations, (2) has beenconstructed in accordance with a permit issued pursuantto subsection (b)of this section, and (3) has satisfactorilycompleted any performance tests required bythe commissioner. All operating facilities holding avalid permit to construct on or before the effectivedate of this act shall be issued a permit to operateand shall be allowed to continue operations prior tothe issuance of such permit to operate." Section 8 of this act provides: "This act shall takeeffect from its passage." New subsection (b)was furthermodified by a technical corrections act, Public Acts1985, No. 85-613, 147, passed on June 5, 1985, andsigned into law on July 10, 1985: "Sec. 147. Subsection(b) of section 2 of public act 85-334 is repealed andthe following is substituted in lieu thereof: "(b) No solid waste facility shall be built orestablished and no solid waste facility [for which apermit to construct is required] WITHOUT A PERMIT TOCONSTRUCT shall be altered after July 1, 1971, untilthe plan, design and method of operation of suchfacility have been filed with the department andapproved by the commissioner by the issuance of apermit to construct, provided, nothing in this actor chapters 446d and 446e of the general statutesshall be construed to limit the right of any localgoverning body to regulate, through zoning, landusage for solid waste disposal. The commissioner shallsend a written notification of any application fora permit to construct to the chief elected official ofeach municipality in which the proposed facility is tobe located, within five business days of the date onwhich any such application is filed." This section also took effect at its passage. PublicActs 1985, No. 85-613, 154. These amended subsections, now renumbered GeneralStatutes (Rev. to 1991) 22a-208a (b) and (c), haveremained unchanged to date.

3. Section 2(b)of Public Acts 1985, No. 85-334 alsoprohibits "constructing" or "maintaining" anunpermitted solid waste disposal facility. The hearingofficer concluded that the appellants had committedthese illegal acts as well as "operating" the facility"by dumping," which we construe to mean they "altered"the facility and "operated" the facility "by altering"it within the meaning of 2(b) of the Act, i.e., byadding to the volume of waste present at the facility. Since there is overwhelming evidence that the dumpexisted as a solid waste disposal facility beforeApril, 1985, when the plaintiffs are first alleged tohave engaged in their illegal activities, the officer'sconclusion that the appellants "constructed" thefacility is unsupported. The trial court did notspecifically address the hearing officer's conclusionthat the plaintiffs had "maintained" the facility.Since neither party has made arguments with respect tothe plaintiffs' alleged "construction or maintenance,"as distinct from "operation," of the facility, we willassume that the PEP has abandoned any claim that thetrial court's dismissal of the appeal should be upheldon the alternative ground that there is substantialevidence that the plaintiffs "constructed" or"maintained" the facility.

4. As a general rule, we consider statutory issuesbefore reaching constitutional questions. See, e.g.,State v. DellaCamera, 166 Conn. 557, 353 A.2d 750(1974). In this case, however, we cannot evaluate thehearing officer's conclusion that CBWC and its officersviolated the statute until we have first construed thestatute, because our construction of the statute isintertwined with the constitutional issue of vagueness.

5. See footnote 2, supra. Number 85-334, 2and No. 85-613, 147 of the 1985 Public Acts simplyamended preexisting General Statutes 22a-208 (c),which provided in pertinent part: "No solid waste facilityshall be . . . altered after July 1, 1971 until the plan anddesign and method of operation of the same have been filedwith the department [of environmental protection] andapproved by the commissioner by the issuance of a permit. . . .No solid waste facility shall be operated onor after October 1, 1984, unless the owner or operatorof such facility has filed a closure plan with thecommissioner which he has approved as in compliancewith regulatory standards adopted pursuant to section22a-209." General Statutes (Rev. to 1985) 22a-208 (c). The only changes made by the subsequent 1985 publicacts that are relevant to the issues before us are (1)the addition of language limiting the requirement for a"permit to alter" to: first, facilities "for which apermit to construct is required"; Public Acts 1985, No.85-334; and second, facilities "without a permit toconstruct"; Public Acts 1985, No. 85-661; and (2) thesubstitution of a permit requirement for operation of afacility "for which a permit to construct is requiredon and after the effective date" of No. 85-334 for theprevious closure plan approval requirement foroperation of any solid waste facility "on or afterOctober 1, 1984." General Statutes (Rev. to 1985)22a-208. These changes do not affect the charges againstthe plaintiffs except by changing the DEP's evidentiaryburden for charges of illegal "operation" of a facilityto include proof that the facility was one "for which apermit to construct is required" or, after July 10,1985, one "without a permit to construct." Thisdecision is rendered based upon the parties' apparentassumption that the DEP had to prove that the facilitywas a "solid waste disposal facility" for which apermit to construct was required.

6. Neither General Statutes 22a-207 (4) or (6) wereaffected by the statutory modifications enacted in 1985.

7. A vague statute that creates a risk of arbitraryor discriminatory enforcement might be unconstitutional,alternatively, as an impermissible delegation of legislativeauthority. Cf. Bottone v. Westport, 209 Conn. 652, 667-68n. 14, 553 A.2d 576 (1989).

8. The photographic exhibits were taken on August 20,1985 (Exhibits 7A, 7B, 8A, 8B) and October 4, 1985(Exhibits 9A-F, 10). Thus, some were taken after theperiod of time during which the appellants were allegedto have committed their illegal acts. The appellantshave not claimed that the photographs misrepresent thegeneral condition of the site at the time they didtheir dumping. In addition, the individual appellantsthemselves testified that when they began dumping theentire site area was "just about . . . filled in."

9. The plaintiffs point out that we recently affirmed atrial referee's decision setting aside a contemptcitation issued against Thomas Capozziello, presidentof BWC, for continuing solid waste disposal on propertyhe owned that adjoined another property he merelyleased. Carothers v. Capozziello, 215 Conn. 82, 107-110,574 A.2d 1268 (1990). In that context, however, we hadno occasion to construe the statutory definition of "location"contained in General Statutes 2-207(6) [22a-207(6)],but addressed ourselves to the terms of the preliminaryinjunction at issue as compared to the location of thealleged illegal conduct. Because the order upon whichthe injunction was based claimed violations at theleased site but not at the owned site, we held that thetrial court's interpretation of the scope of theinjunction was unduly expansive.

10. The Regulations of Connecticut State Agencies,22a-209-1 provides the following definition of thestatutory term "alter": `Alter' (1) when referring to a solid waste facilitywhich has not permit, means to change the existingconfiguration or method of operation of the facility inany manner, including but not limited to adding to thevolume of solid waste deposited at the facility; (2)when referring to a solid waste facility which holds apermit, means to change the approved configuration ormethod of operation of the facility in any manner,including but not limited to adding to the approvedvolume of solid waste deposited at the facility."

11. See footnote 3, supra.

12. See Regs., Conn. State Agencies 22a-209-6,22a-209-7. The Regulations of the Connecticut StateAgencies, 22a-209-1 defines "operator" as "a person who isultimately responsible for maintaining the solid wastefacility in conformance with applicable statutes andregulations and the facility permits." This definitionis unhelpful when one is charged with "operating" afacility that does not have a permit.

13. The appellants have not contested the hearingofficer's findings imposing liability upon theCapozziello brothers as individuals for their personalparticipation in "operating" the facility. By virtue ofsuch participation, we affirm the trial court'sjudgment against Russell and Geno Capozziello in theirindividual capacities with respect to liability.Part III of this opinion, however, also applies to theDEP orders issued against them as individuals.

14. The full text of General Statutes 22a-207 (6)defines "[s]olid waste disposal area" as "the locationutilized for ultimate disposal of wastes as approved bythe department." The phrase "as approved by the department"presumably ensures that dumping outside the authorizedboundaries of a permitted solid waste facility willconstitute unpermitted dumping. In this case, ofcourse, because there was no permit, there was nolocation "approved by the department."

15. The plaintiffs argued to the trial court that thematerials deposited at the site were not "unwanted ordiscarded" because the residents had authorized thedumping as a means of leveling off their slopingbackyards. They have not, however, appealed the trialcourt's conclusion that "at the time an outside partycontracts with a demolition company, the debris resultingfrom the demolition of the building or site,becomes unwanted and falls within the statutorydefinition of solid waste; the debris is `discarded' or`unwanted' by the person or party who contracted tohave the particular structure demolished" and thereforethat "the demolition debris deposited at Clearview[Drive] constituted solid waste as defined by GeneralStatutes Section 22a-207 (3)." (Emphasis in original.)In the words of the trial court: "Simply because otherparties, thereafter, may wish to obtain the debris fromthe demolition company, by purchase or otherwise, doesnot remove it from the Section 22a-207 (3) definition;to so construe the statute, in the circumstances ofthis case, would be to ignore the expressed objectiveof protecting the environment and the public fromunsafe commercial operations presenting risks of fire,odor, air pollution, water pollution, etc." Ourdiscussion of the words "discarded" or "unwanted" inCarothers v. Capozziello, 215 Conn. 82, 107-110,574 A.2d 1268 (1990), was in the context of allegedviolations of General Statutes 22a-250 [c], thelittering statute, and does not affect this case.

16. "[General Statutes (Rev. to 1985)] Section22a-209. REGULATIONS. The commissioner shall promulgateregulations governing solid waste management, andpermits, as provided for in subsection (c) of section22a-208, shall be conditioned upon conformance withsuch regulations as well as applicable laws." Thisstatute, formerly enacted as General Statutes 19-524c,was operative in February, 1985, when the discussedregulations became effective. We note that, had the regulations validly exempted"clean fill" from the definition of solid waste, theburden would remain on the plaintiffs to prove thatthe materials they dumped fell within the exemption.See Conservation Commission v. Price, 193 Conn. 414,424, 479 A.2d 187 (1984); 2 A J. Sutherland,Statutory Construction (4th Ed. Sands) 47.22.

17. We note that common building brick weighsapproximately 120 pounds per cubic feet, or 3240 poundsper cubic yard. R. Perry, Engineering Manual (3d Ed.)p. 4-2; G. Brady & H. Clauser, Materials Handbook (11thEd.) p. 111. One twenty-yard truckload of buildingbricks would therefore weigh 64,800 pounds, or 32tons. As Russell Capozziello explained, twenty yards ofsuch heavy materials would be carried in several loadsbecause of its weight. Even if a brick house producingtwenty cubic yards of brick was transported in sixloads, each load would be 5 tons. Light concrete blockweighs less, only 65 pounds per cubic foot, or 1755pounds per cubic yard. R. Perry, supra. If, as Russellindicated, one concrete building that the plaintiffsdumped at the site had produced twenty cubic yards ofthis material, that debris alone would have weighed 35,100 pounds, or 17.6 tons. Uncompressed pine boardsweigh only 26 pounds per cubic foot, or 702 pounds percubic yard. Id. A twenty yard load of pine wouldtherefore weigh 14,040, or 7 tons. Even if we assumethat none of the plaintiffs' trucks were ever full, andthat the weights approximated above refer to a compactsolid block of each material rather than a loose load ofdemolition debris, it is plain that forty-five loads of anyof these materials would far exceed the five ton requirement.

18. The legislature's recent amendment to GeneralStatutes (Rev. to 1991) 22a-207 (6), while irrelevantto the disposition of this case, is illuminating. Aspresently worded, the new definition of "[s]olid wastedisposal area" is the "land and appurtenances thereonand structures, including a landfill or other landdisposal site, used for the disposal of more than ten cubicyards of solid waste." (Emphasis added.) Under therevised statute, then, the appellants' dumping wouldhave exceeded the statutory minimum ninety times over.

19. General Statutes 22a-6a (b) provides inpertinent part: "Whenever two or more persons knowingly ornegligently violate any provision of section . . . 22a-208,22a-208a . . . or any regulation, order or permit adopted orissued thereunder by the commissioner and responsibility forthe damage caused thereby is not reasonably apportionable,such persons shall, subject to a right of equal contribution,be jointly and severally liable under this section." PublicActs in 1986, 1987, 1989 and 1990 made technical changes andadded references to other statutory sections but in all otherrespects the statute is the same as that in effect in 1985.

20. General Statutes 22a-6a was enacted as 1 of No.73-665 of the 1973 Public Acts. Senator Philip N. Costello,Jr., sponsor of the original bill, substitutesenate bill No. 1973, selectively summarized thesection: "It provides that any person who violates anystatute, regulation, order or permit administered,adopted or issued by the Commissioner of EnvironmentalProtection shall be liable to the state for damages tothe environment caused by such violation." 16 S. Proc.,Pt. 8, 1973 Sess., p. 3541. Similarly, RepresentativeRichard H. Wagner, offering the act to the House ofRepresentatives, summarized: "[T]his rather lengthy billaccomplishes two fundamental purposes within the Departmentof Environmental Protection. It makes any person whoviolates any statute, regulation, order or permitadministered, adopted or issued by the Commissioner be liableto the State for the damages to the environment caused byhis violation . . . ." 16 H.R. Proc., Pt. 15, 1973 Sess., p. 7780.

21. In Gutowski v. New Britain, 165 Conn. 50,327 A.2d 552 (1973), we adopted, in part, 433B of theRestatement (Second), Torts, with respect to intentionallytortious acts performed in concert. Id., 55. More recently,the Appellate

The state department of environmental protection(DEP) charged the plaintiffs with operating anddepositing waste at an unpermitted solid waste disposalfacility. The DEP ordered them to cease these illegalactivities and to remove all solid waste exclusive of"clean fill" from the site. After seven days ofhearings, the DEP hearing officer affirmed the order.In the ensuing administrative appeal, the SuperiorCourt affirmed the hearing officer's finding ofliability but refused to review the order itself,ruling that the reasonableness of the order could onlybe challenged in the pending enforcement proceeding.The plaintiffs appealed, challenging (1) the sufficiencyof the evidence for the finding of liability, (2) thetrial court's refusal to review the enforcement orderitself, and (3) the constitutionality of General Statutes(Rev. to 1985) 22a-207 (4) and (6),1 specifically,whether the phrase "location utilized for the ultimatedisposal of wastes" is an impermissibly vague definitionof "solid waste disposal area." We affirm the judgmentwith respect to the first and third issues raised, butreverse with respect to the second.

[218 Conn. 583]

The following facts are not in dispute. In a seriesof orders commencing in September, 1985, the DEPcharged Connecticut Building Wrecking Company, Inc.(CBWC), and its joint owners, Geno and Russell Capozziello,who are brothers, with violations of Public Acts 1985,No. 85-334, 2(b) and (c).2 Those provisions

[218 Conn. 584]

     essentially prohibit, inter alia, "altering" (2 [b]) or"operating" (2 [c]) a solid waste facility that does not

[218 Conn. 585]

     have a permit.3 As a remedy, the PEP ordered theplaintiffs either to remove "all solid waste exclusiveof clean fill" at the site or to close the facilityafter submitting acceptable plans within a prescribedtimetable. The PEP made similar charges with respect tothe same site against at least one other company,Bridgeport Wrecking Company (BWC), which the recordreveals is owned by Thomas Capozziello, another brotherof Russell and Geno. BWC did not, however, appeal theorder against it. After reaching a tentative settlementwith the PEP, CBWC submitted documents in connectionwith the required closure plans. The PEP, however,considered the documents inadequate and untimely. Itinsisted that the plaintiffs clear the site.

The "site" ordered cleared is a sloping piece of landrunning behind a row of houses on Clearview Drive and

[218 Conn. 586]

     Clearview Circle in Bridgeport. The DEP's "principalenvironmental analyst," Thomas Pregman, estimated thatthe dumped materials or "fill" covering the site areameasured approximately 500 feet in length, 35 to 40feet in width and 20 to 30 feet in height. The fillcovered the backyards of nine different but contiguouslots of land with nine different owners. No solid wastepermit of any kind was ever sought by or issued toeither the plaintiffs or any of the resident owners.

Both the DEP and the plaintiffs agree that truckloadsof material were dumped on the site by CBWC as well asby other companies. Some residents initially welcomedthe dumping as a means of leveling the steep slope oftheir backyards. The plaintiffs do not dispute thepresence of "solid waste" at the site, including wood,tires, stumps and leaves. The hearing officer madefactual findings that "[t]he limits of the solid wastefill are unknown" and that "[t]he sources of most ofthis waste are undetermined."

I

Before proceeding to address the substance of thehearing officer's conclusions, we must discuss theplaintiffs' claim that the statute they are chargedwith violating is unconstitutionally vague.4

The DEP found that the plaintiffs had violated 2(b)and (c) of No. 85-334 of the 1985 Public Acts, subsequentlymodified by No. 85-661, 147 of the 1985 PublicActs and codified as General Statutes 22a-208a (b) and(c).5 Under any version of the statute in effect

[218 Conn. 587]

     during the period in question, it was illegal to alteror operate a "solid waste facility" that did not havethe requisite permits the statutes or regulationsrequired. Because the plaintiffs' conduct would notviolate the statute unless the "facility" at which theydumped was required to have a permit, the pertinentissue involves the statutory definition of "solid wastefacility."

General Statutes (Rev. to 1985) 22a-207 (4) defines"[s]olid waste facility" as "any solid waste disposalarea . . . if such area . . . handles more than five tons ayear of solid waste." Section 22a-207 (6) defines "[s]olidwaste disposal area" as "the location utilized for ultimatedisposal of wastes as approved by the department."6The plaintiffs argue that the word "location"

[218 Conn. 588]

     makes the entire statutory scheme unconstitutionally vague onits face. They also argue that the word "location" makes thestatutory scheme unconstitutionally vague when applied to theClearview Drive site, which consists of portions of nineseparately owned lots of land.

When a litigant challenges a statute as void forvagueness under the United States constitution, weconfine our inquiry to the statute's applicability tothe facts of the case unless the statute could intrudeupon fundamental constitutional guarantees, such asfirst amendment rights. State v. Cavallo, 200 Conn. 664,670, 513 A.2d 646 (1986). A statute may beunconstitutionally vague in violation of due processwithout impinging upon such fundamental guarantees, butin such a case, a litigant lacks standing to challengethe statute's vagueness unless his own due processrights would be violated by its application to him. Id.An exception to this general rule arises in those rarecases when the statute's vagueness itself violates dueprocess by making the statute impossible to obey. See,e.g. Champlin Refining Co. v. Corporation Commissionsof Oklahoma, 286 U.S. 210, 243, 52 S.Ct. 559, 76 L.Ed.1062 (1932); cf. Lanzetta v. New Jersey, 306 U.S. 451,453, 59 S.Ct. 618, 83 L.Ed. 888 (1939). In order toprevent this latter difficulty, we will, if we have notpreviously construed the statute, "search for `aneffective and constitutional construction thatreasonably accords with the legislature's underlyingintent'" State v. Floyd, 217 Conn. 73, 79,584 A.2d 1157 (1991), quoting State v. Breton, 212 Conn. 258,269, 562 A.2d 1060 (1989); thereby dispelling anyclaimed constitutional violation. See, e.g., Ward v.Rock Against Racism, 491 U.S. 781, 795-76, 109 S.Ct.2746, 105 L.Ed.2d 661, reh. denied, 492 U.S. 937, 110S.Ct. 23, 106 L.Ed.2d 636 (1989) (the United States Supreme

[218 Conn. 589]

     Court, in evaluating a facial challenge to a state law, willconsider any limiting instruction proffered by a state court).

The plaintiffs contend that, as written, 22a-207 (4)and (6) make it impossible for any dumper to obey GeneralStatutes (Rev. to 1989) 22a-208a (b)and (c). Sincea dumpsite "location" is not a "solid waste disposalfacility" unless it "handles more than five tons a yearof solid waste," the plaintiffs maintain that a dumperwill be at a loss when he tries to determine whetherhis disposal activities in a given "area" or "location"have triggered the "five ton" permit requirement. Thisargument suggests that dumping one ton in each of fivecity neighborhoods could be dumping five tons in one"location" if the "location" is the entire city.

"The court must use common sense in construingstatutes and must assume that a reasonable and rationalresult was intended by the promulgating legislature."Windham First Taxing District v. Windham, 208 Conn. 543,553, 546 A.2d 226 (1988). The statute refers to an"area that handles" and a "location utilized for" solidwaste. Without delimiting the full scope of the term"location"; cf. Board of Education v. Freedomof Information Commission, 217 Conn. 153, 161,585 A.2d 82 (1991); Cos Cob Volunteer Fire Co. No. 1, Inc. v.Freedom of Information Commission, 212 Conn. 100, 106,561 A.2d 429 (1989); we can reasonably construe 22a-207(6) as limited to contiguous property that is intendedto or reasonably appears to act as a single dumpsite.So construed, the statutory scheme is not "impossible"to obey; the still puzzled would-be dumper may seekfurther clarification from the DEP, the agencyresponsible for administering the statute. "[S]tatutesare not automatically invalidated as vague simplybecause difficulty is found in determining whethercertain marginal offenses fall within their language."United States v. National Dairy Corporation,

[218 Conn. 590]

     372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1962),reh. denied, 372 U.S. 961, 83 S.Ct. 1011, 10 L.Ed.2d13 (1963). This is especially true when the statuteaffects regulated activity, such as dumping, for "theregulated enterprise may have the ability to clarifythe meaning of the regulation by its own inquiry, or byresort to an administrative process." Hoffman Estatesv. Flipside, Hoffman Estates, 455 U.S. 489, 498, 102S.Ct. 1186, 71 L.Ed.2d 362, reh. denied, 456 U.S. 950,102 S.Ct. 2023, 72 L.Ed.2d 476 (1982); see also Kolenderv. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct.1855, 75 L.Ed.2d 903 (1983); Papachristou v. Jacksonville,405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d110 (1972); cf. Boyce Motor Lines, Inc. v. UnitedStates, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367(1952). By contrast, the statute at issue in ChamplinRefining Co. v. Corporation Commissions of Oklahoma,supra, would have required the refining company toconduct an exhaustive economic survey of its operationsin order to discover whether it was operating"wastefully," even assuming that the term "wasteful"was capable of any objective meaning.

Although we conclude that 22a-207 (6), as construed,is sufficiently clear to preserve the constitutionalityof 22a-208a (b)and (c), the plaintiffs did not have thebenefit of our limiting construction at the time theyare alleged to have violated the statute. They are,therefore, entitled to contend that the statute wasunconstitutionally vague as applied to the facts oftheir case.

"A party attacking the constitutionality of a validlyenacted statute bears the heavy burden of proving itsunconstitutionality beyond a reasonable doubt. State v.Breton, [supra]; Zapata v. Burns, 207 Conn. 496, 507-508,542 A.2d 700 (1988)." State v. Floyd, supra, 79. Theconcept of unconstitutional vagueness derives fromthe guarantees of due process contained in the fifthand fourteenth amendments to the United States

[218 Conn. 591]

     constitution. See Hoffman Estates v. Flipside, HoffmanEstates, supra, 498-504; Grayned v. Rockford, 408 U.S. 104,108-109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Dueprocess requires that laws "give the person of ordinaryintelligence a reasonable opportunity to know what isprohibited" and "provide explicit standards for thosewho apply them" in order to prevent the risk ofarbitrary and discriminatory enforcement. Grayned v.Rockford, supra, 108; see also Smith v. Goguen,415 U.S. 566, 573, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974);United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct.1538, 91 L.Ed. 1877 (1946); Keogh v. Bridgeport,187 Conn. 53, 60, 444 A.2d 225 (1982).7 To demonstratethat a statute is unconstitutionally vague as applied to him,a litigant must therefore demonstrate beyond a reasonabledoubt that he had inadequate notice of what was prohibitedor that he was the victim of arbitrary and discriminatoryenforcement. The plaintiffs can do neither.

To demonstrate his lack of notice of what wasprohibited, the challenging party must establish that aperson of ordinary intelligence would not be able toknow whether his conduct is permitted or prohibitedunder the statute. Bottone v. Westport, 209 Conn. 652,658, 553 A.2d 576 (1989). "`The test is whether thelanguage conveys sufficiently definite warning as tothe proscribed conduct when measured by common understandingand practices.'" State v. Chetcuti, 173 Conn. 165, 167,377 A.2d 263 (1977), quoting Jordan v. De George, 341 U.S. 223,231-32, 71 S.Ct. 703, 95 L.Ed. 886 (1950). The PEP'sunchallenged photographic exhibits depict an enormousmountain ridge of waste spanning the nine Clearview Drive

[218 Conn. 592]

     backyards without visible demarcations of any kind.8 Noreasonable person could view such a scene, as the plaintiffsadmittedly did, and perceive nine separate dumpsites. Theordinary person could not fail to realize that dumpingin any one or more of the nine backyards would constitutedumping in a single "location."9

To demonstrate that the statute's vagueness gives anagency unbridled discretion to enforce the statutearbitrarily and discriminatorily, the challenging partymust establish that he was the victim of such arbitraryand discriminatory enforcement. See State v. White,204 Conn. 410, 417, 528 A.2d 811 (1987); cf. HoffmanEstates v. Flipside, Hoffman Estates, supra, 503. Thefinal hearing officer specifically concluded that theplaintiffs "[had] not alleged any facts to support afinding of invidious prosecution." The plaintiffs havenot contested that conclusion on appeal and cannot nowbe heard to claim that the statute sanctioned arbitraryenforcement against them. State v. White, supra.

[218 Conn. 593]

II

The plaintiffs next claim that the PEP's ordersshould be reversed as "clearly erroneous in view of thereliable, probative, and substantial evidence on thewhole record." General Statutes 4-183 (j)(5).

"The `substantial evidence' rule governs judicialreview of administrative factfinding under GeneralStatutes (Rev. to 1987) 4-183 (g) . . . . An administrativefinding is supported by `substantial evidence'if the record affords a `"`substantial basis of factfrom which the fact in issue can be reasonablyinferred.'"' . . . Such a standard of review allowsless room for judicial scrutiny than does the `weightof the evidence' rule or the `clearly erroneous'rule . . . . In determining whether an administrativefinding is supported by substantial evidence,' a court mustdefer to the agency's assessment of the credibility of thewitnesses and to the agency's right to believe ordisbelieve the evidence presented by any witness, evenan expert, in whole or in part . . . . An agencycomposed of [experts] is entitled, furthermore, to relyon its own expertise within the area of its professionalcompetence . . . . Basically, an agency is not `required touse in any particular fashion any of the materials presentedto it so long as the conduct of the hearing is fundamentallyfair.'" (Citations omitted.) Briggs v. State EmployeesRetirement Commission, 210 Conn. 214, 217-18,554 A.2d 229 (1989); see also Connecticut Light & Power Co. v.Department of Public Utility Control, 216 Conn. 627,639-40, 583 A.2d 906 (1990).

The plaintiffs contend that "under Connecticut law, inorder to operate a `solid waste disposal area,' a personmust (1) utilize a location; (2) for ultimate disposal ofsolid waste; (3) at the rate of at least five tonsper year." They further contend that "solid waste" is waste

[218 Conn. 594]

     exclusive of "clean fill" as defined by administrativeregulations, so that in order to meet its burden ofproof, the DEP had to prove that they dumped more thanfive tons per year of waste exclusive of clean fill.They maintain, in conclusion, that the DEP failed tosatisfy this burden. The plaintiffs' contentions arecompletely without merit, however, because theyfundamentally misconstrue both the statute and theregulations.

The plaintiffs were charged with violations of 2(b)and (c) of No. 85-334 of the 1985 Public Acts, formerlyGeneral Statutes (Rev. to 1985) 22a-208 (b), subsequentlyGeneral Statutes (Rev. to 1987) 22a-208a (b) and (c).Under any version of the statute, the plaintiffs would beliable for its violation if they either altered, e.g., byadding to,10 a preexisting solid waste facility thatdid not itself have a construction permit (subsection [b]of the statute), or if they "operated" a solid waste facilitywithout a permit to do so (subsection [c] of the statute).11

The DEP could have demonstrated the plaintiffs' liabilityeven if the plaintiffs had not themselves dumpeda single ounce of anything, solid waste or otherwise,at the dump, if it were able to show that the plaintiffshad "operated" the dump, e.g., if they had managed it,supervised dumping by other companies, controlled thecontours of the site by spreading the waste anddirecting the location of new loads, or performed other

[218 Conn. 595]

     acts that the administrative regulations require "certified"operators of solid waste facilities toperform.12 The final hearing officer's findingswith respect to the individual liability of Geno andRussell Capozziello13 have significant support inthe administrative record and might have supported anultimate conclusion that CBWC was also liable as suchan "operator" of the facility. Instead, however, thefinal hearing officer assessed CBWC's liability basedon his finding that the plaintiffs had "operated"the site in question "by dumping." For this reasonalone, we shall proceed to evaluate the substantialityof the evidence in support of the hearing officer'sfinding that the plaintiffs "operated" a solid wastefacility "by dumping."

A

As the plaintiffs point out, the first question iswhether the DEP proved that the facility was a "solidwaste facility." We have already construed 22a-207 (6)to define a "solid waste disposal area" as including alocation consisting of contiguous property that isintended to or reasonably appears to act as a singledumpsite "utilized for ultimate disposal of wastes,"14and have concluded that the Clearview Drive dumpsite

[218 Conn. 596]

     was such an "area." To prove that the Clearview Drivedumpsite was a "solid waste disposal facility," theDEP still had to prove, however, that the site "handledmore than five tons a year of solid waste."

Section 22a-207 (3) defines "solid waste" as`unwanted or discarded materials, including solid, liquid,semisolid or contained gaseous material." Theplaintiffs do not dispute the presence at the site ofdiscarded "solid material," nor, indeed, that theydumped such "solid material" at the site.15 Instead,they assert that the hearing officer's decision was notbased on substantial evidence because the DEP did notprove the presence of more than five tons of materialsother than "clean fill," which, they assert in afootnote, "is not, by definition, `solid waste.'"

[218 Conn. 597]

The plaintiffs are incorrect. The statutes do notmention "clean fill," and the only statutorydefinition of "solid waste" is the broad definition,cited above, in 22a-207 (3). The DEP regulationspromulgated pursuant to General Statutes 22a-209 do notprovide any definition of "solid waste," much less anarrow definition of "solid waste" excluding "cleanfill," and, indeed, such a contradictory regulationmight exceed the commissioner's statutory authority.See General Statutes (Rev. to 1985) 22a-209.16

The DEP regulations do address "clean fill," but notin the sense asserted by the plaintiffs. Section22a-209-1 of the Regulations of Connecticut State Agenciesfirst defines "clean fill" as "natural soil, rock,brick, ceramics, concrete, and asphalt paving fragmentswhich are virtually inert and pose neither a pollution threatto ground or surface waters nor a fire hazard."Next, 22a-209-3 of the Regulations of Connecticut StateAgencies provides: "These regulations apply to theoperation and management of all existing and proposedsolid waste facilities, and to all applications for apermit or contract approval which are submitted afteror are in process on the effective date of these regulations.Areas which are solely for the disposal of clean fillshall be exempt from the provisions of these regulations."(Emphasis added.) By implication, areas for the disposal

[218 Conn. 598]

     of solid wastes that include both clean fill and otherwastes are not exempt from the regulatory requirements.

The prohibition on combined dumping is made clear bythe only other regulation using the term "clean fill,"22a-209-1. That section defines "bulky waste" as"landclearing debris and waste resulting directly fromdemolition activities other than clean fill" and thenincludes "bulky waste" within the definition of "specialwastes" or "non-hazardous solid wastes which requirespecial handling . . . ." Next, 22a-209-8 (c) ofthe Regulations of Connecticut State Agencies provides:"The combined disposal of special wastes with othersolid wastes or special wastes is prohibited unlessspecifically approved in writing by the Commissioner."Thus, "bulky waste" and "clean fill" may not be disposedof together without special approval by the commissioner.

These regulations make it clear that "clean fill" issolid waste within the statute. The question is notwhether there were five tons of waste exclusive ofclean fill where the plaintiffs dumped; the question iswhether there were five tons of any solid waste at thatsite, so long as clean fill was not the only waste atthe site. If the unpermitted site contained more thanfive tons of solid waste, deposited within one year,the statutes and regulations made it illegal for theplaintiffs to "operate" or "alter" the site by addinganything, even less than five tons, to the site.

The facts of this case illustrate the legislativepurpose behind imposing cleanup liability on even thosewho engage in merely negligent dumping of otherwiseinnocuous materials. Decomposition of solid waste otherthan clean fill creates demonstrated environmentalhazards. If decomposable solid waste and clean fill arecombined, it becomes difficult to discover the culprit

[218 Conn. 599]

     and assign liability. Presumably for that reason, theregulations prohibit combination dumps without permission;requiring DEP permission enables the PEP to exercise someoversight. Once a combination dump has been created withoutDEP oversight, additional deposits of any material,including clean fill, make it more difficult to remove thedecomposing materials and, if necessary, clean up the entirecombination dump, as well as further complicating discoveryof the persons responsible.

B

The plaintiffs have never claimed that the whole ninebackyard site consisted entirely of clean fill. If,then, the dumpsite contained more than five tons ofsolid waste deposited during one year, irrespective ofthe quantity of clean fill within that waste, theplaintiffs have violated General Statutes 22a-208a (b).

It would have been reasonable for the hearing officerto have inferred from the dimensions of the fill, thetestimony concerning its contents; e.g., truckloads ofleaves, the debris from a bedding store destroyed byfire, the rubble of a demolished housing project, alldeposited during 1985; as well as from his own on-siteinspection of the dump, that the fill as a wholecontained five tons of solid waste deposited within oneyear. The hearing officer, however, apparently basedhis conclusion that the plaintiffs "operated" thefacility "by dumping" at the site solely upon theunnecessary factual finding that they had dumped atleast five tons of solid waste at the site during theperiod from April to October, 1985, without deciding,as indeed he had no need to do, what proportion of thatsolid waste was clean fill. The plaintiffs can prevail,therefore, only if this finding is without substantialsupport in the record as a whole.

[218 Conn. 600]

The five ton requirement was first raised in passingduring the plaintiffs' cross-examination of the DEP'sexpert, Thomas Pregman, a senior environmental analystwith eleven years of experience in solid wastemanagement. Responding to a request that he appraisethe relative condition of various portions of the site,Pregman answered: "We consider the whole - all theproperty as the one site." He continued, "Anything inexcess of five tons of waste on all of the property isa violation." Upon the hearing officer's inquiry, Pregmancommented, "I think it's - you have - basically onegood size truckload is five tons."

The hearing officer cited certain evidence in supportof his inference that the dumpsite contained at leastfive tons of solid waste: (1) the size of the dumpsite(500 feet in length, 35 to 40 feet in width, and 20 to30 feet in height); (2) the statements of numerousresident witnesses that they had viewed the plaintiffs'"trucks" dump at the site; and (3) Pregman's statementthat one good size truckload" weighed five tons.

The plaintiffs attack the first item of evidence byarguing that the "site" at which they dumped consistedof only one or two individual backyards, not the wholenine backyard dumpsite. We have already rejected thatargument. In their remaining challenge to the sufficiencyof the evidence, the plaintiffs claim that theresidents' testimony and Pregman's casual assertionthat "one good size truckload is five tons" were tooimprecise and unreliable to constitute "substantialevidence" that the five ton requirement had been met,without a further description of the size of a "goodtruckload" or evidence that the trucks viewed bythe witnesses would meet that description.

The Uniform Administrative Procedure Act (UAPA)prescribes that review of an administrative adjudicativedecision should be "on the whole record." General

[218 Conn. 601]

     Statutes 4-183 (j). "`Substantial evidence' exists ifthe administrative record affords'"'" a substantialbasis of fact from which the fact in issue can bereasonably inferred.'"'" (Citations omitted.)Connecticut Light & Power Co. v. Department of PublicUtility Control, supra, 639-40. If, therefore, thespecific evidence cited in support of an administrativeofficer's ultimate factual finding is inadequate tosupport that ultimate factual conclusion, a reviewingcourt should search the record of the entireproceedings to determine whether it does in factcontain substantial evidence from which the ultimatefactual finding could reasonably be inferred. Norwichv. Norwich Fire Fighters, 173 Conn. 210, 214,377 A.2d 290 (1977); see also Connecticut Light & Power Co. v.Department of Public Utility Control, supra; Grillo v.Zoning Board of Appeals, 206 Conn. 362, 369,537 A.2d 1030 (1988); Persico v. Maher, 191 Conn. 384, 409,465 A.2d 308 (1983); Ward v. Zoning Board of Appeals,153 Conn. 141, 144, 215 A.2d 104 (1965). Thus, if theadministrative record provides substantial evidenceupon which the hearing officer could reasonably havebased his finding that the plaintiffs dumped at leastfive tons at the site within one year, the decisionmust be upheld.

The most useful additional evidence contained in therecord comes from the individual plaintiffs themselves.Testifying in his own behalf, Russell Capozziellodescribed CBWC's activities. Asked how he reached theproperty of Joseph Eppes, a portion of the site CBWCadmitted using as a dump, Russell stated: "We wouldcome down Clearview Drive with our trucks." (Emphasisadded.) He recollected that he said to Eppes:"`Is it possible that I could fit my company's bigtrailers between your house and the next house and useyour driveway?'" (Emphasis added.) He described how hefinally got his "trailer" to Eppes' property.

[218 Conn. 602]

Russell went on to say that he had used "tractor/trailerdump trucks" to dump behind Eppes' house.Each tractor/trailer, he explained, held twenty cubicyards, and his company had dumped forty-five loads ofthat size.17 The loads were generated from "[v]ariousdemolition jobs within the city of Bridgeport,"where CBWC had been hired to demolish buildings. Heclaimed that CBWC dumped on and off for only threeweeks, although on cross-examination it was shown thatthe Bedding Shack, which CBWC dumped at the site, wasdemolished in June, 1985, whereas CBWC first reacheddumping agreements with two residents in April, 1985.

Further describing his trucks' capacity, Russellexplained that demolition of the Bedding Shack, a concretebuilding, generated twenty to twenty-five cubicyards of demolition debris; because of the weight ofthe debris, it was carried in five or six loads. Thatbuilding was a "very small building." As a general rule,he explained, a one-story, forty by seventy foot blockbuilding and a two-story wood frame building each generate

[218 Conn. 603]

     approximately twenty cubic yards of demolition debris. "Onetruck," he testified, holds twenty cubic yards, although asolid load like concrete might require more truckloads.

On redirect, Russell testified concerning seventeendifferent buildings demolished by CBWC within therelevant time period. He was able to remember the volumeof demolition debris generated in each case, butcould not remember where it had been dumped. Total fillgenerated by these demolition jobs was approximatelyfour hundred cubic yards.

The demolition permits entered into evidence statedthat the debris was to be taken to legitimate locallandfills, especially the D'Addario landfill inMilford. The DEP then offered the business records ofthat landfill which showed essentially no entries fordumping tickets purchased during the time the seventeenbuildings were demolished. The ticket-seller, WilliamHaug, also explained that in his record keeping, hereferred to ten wheeler trucks as "fifteen yards" andtrailers as "thirty yards." According to him, a trailerheld thirty cubic yards of material. CBWC recalledRussell to the stand, and he then justified thediscrepancy in evidence by explaining that he often gotaccess to the D'Addario dumps without tickets becausehe knew the owner. He could not, however, recall thedates of any such occasions.

This damaging testimony came from the plaintiffsthemselves. DEP witnesses, including Clearview Driveresidents, gave additional testimony that was fiercelydenied by the plaintiffs, who insisted that theiraccusers were either "lying" or confusing them withtheir allegedly "look-alike" brothers, Thomas, owner ofBWC, and Dennis, owner of New England Demolition. Inits memorandum of decision, the trial court recited theresidents' testimony at length. Of particular note

[218 Conn. 604]

     are statements by John Karmolinsky that he saw "anumber of trucks" owned by CBWC dumping rotted leaves;statements by Elbert Barnes that he saw CBWC dump "theBedding Shack," and "leaves, scrub," and both brickand wood houses that had been demolished; andstatements by Eppes that, on his property, "they"dumped "Beardsley Terrace" (a demolished housingproject or apartment building), "[o]n Mr. Barnes' yard,"they dumped "a load of wood and leaves and steel barsand things," and on the property of "George [Bottone]and Eddie [Fay]" (two contiguous lot owners), "wood andleaves and a refrigerator."

The DEP also offered testimony by Lawrence Morgan, apolice officer called to the site by Manuel Rocha whohad returned from vacation to find his yard filled withwood and other debris. Morgan testified that he saw"very large dump trucks, not the square type, but theelongated type dump trucks" exiting from ClearviewDrive, and that a driver of one truck told him heworked for CBWC and Russell Capozziello.

In summary, Russell admitted that CBWC had dumpedforty-five twenty cubic yard loads on the dumpsitefor a total of 900 cubic yards. According to his owntestimony, this deposit was the equivalent of forty-fivetwo-story wood frame houses. The DEP's evidenceindicated that at least seventeen houses were probablyincluded in those forty-five loads. This court may notconsider facts not in evidence, but neither is itrequired to suspend all common sense. We conclude thatthe hearing officer's finding, that the plaintiffsdumped at least five tons of solid waste at the site,was reasonably inferred from the testimony and otherevidence adduced.18

[218 Conn. 605]

Having concluded that the hearing officer's assessmentof liability against the plaintiffs was reasonable, thetrial court then declined to review the reasonableness ofthe agency's order requiring the plaintiffs to clear allsolid waste exclusive of clean fill from the site. Itconcluded that the order's "reasonableness" was merely apredicate for its enforceability, and should be reviewedin the context of an enforcement proceeding brought by theDEP if the plaintiffs did not comply with the order. We disagree.

A

Under the UAPA, a court "shall affirm the decision ofthe agency unless the court finds that substantialrights of the person appealing have been prejudicedbecause the administrative . . . decisions are . . .arbitrary or capricious or characterized by abuse ofdiscretion or clearly unwarranted exercise ofdiscretion." (Emphasis added.) General Statutes 4-183(j). The administrative decision in this case includeda "final order" that the "[r]espondents shall removeall solid waste, except clean fill," from "the site"and that the "[r]espondents shall restore the site tothe conditions that existed before solid waste wasdisposed there." By affirming the administrative decisionwithout evaluating the cleanup order contained within it,the trial court failed to complete the judicial reviewrequired by 4-183 (j). We therefore remand the case tothe trial court for review of the cleanup order itself.

B

On remand, the trial court must conduct its ownreview of the cleanup order. In the interests of judicial

[218 Conn. 606]

     economy, however, we will discuss the pertinent factorsthat the trial court should apply in evaluating the order.

In their petition to the trial court, the plaintiffscontended that the cleanup order exceeded the agency'sauthority and that it constituted an abuse ofdiscretion because the DEP did not join other allegedlyindispensable parties, namely, the other persons whodumped at the site. In essence, the plaintiffs claimthat the order was an "abuse of discretion" because itwas unreasonable for the DEP to require them to removeall the waste at the site when the DEP did not disputethat others had also dumped waste at the site,especially after the DEP hearing officer had denied theplaintiffs' request to have other dumpers "joined" inthe administrative proceeding.

The DEP contends, citing General Statutes 22a-6a(b),19 that once a violation of the statute had beenestablished, the plaintiffs were jointly and severallyresponsible for cleanup of the entire site, althoughentitled to seek contribution on their own behalf fromothers also responsible. We note that 22a-6a (b) appearsto be addressed to suits for damages brought by thecommissioner, not to the propriety of remedial ordersissued by the commissioner.20 Because 22a-6a

[218 Conn. 607]

     was enacted after the 1971 environmental legislationwhich included the Solid Waste Management Act, GeneralStatutes 22a-207 through 22a-256ee, in order tostrengthen the commissioner's enforcement powers; see,e.g., remarks of Senator Philip N. Costello, Jr., 16 S.Proc., Pt. 8, 1973 Sess., p. 3543; remarks of RepresentativeRichard H. Wagner, 16 H.R. Proc., Pt. 15, 1973 Sess.,pp. 7780-81; testimony of Daniel Lufkin, commissioner ofenvironmental protection, concerning the bill'sdrafting, Conn. Joint Standing Committee Hearings,Environment, Pt. 1, 1973 Sess., pp. 264-67; we conclude,however, that the legislature did not intend by itsenactment to preclude application of the common lawprinciple of joint and several liability in the context ofremedial orders.

In the related field of hazardous waste legislation,the federal courts> have consistently applied the commonlaw principle of joint and several liability, with somelimitations, as expressed in the Restatement (Second)of Torts, 433A, 433B, 879 and 881, to factual scenarioscomparable to the one before us. See, e.g., O'Neil v.Picillo, 883 F.2d 176 (1st Cir. 1989), cert. denied subnom. American Cyanamid Co. v. O'Neil, 493 U.S. 1071, 110S.Ct. 1115, 107 L.Ed.2d 1022 (1990); United States v. A & FMaterials Co., 578 F. Sup. 1249, 1255 (S.D. RI. 1984); seeso, applying a different adaptation of the Restatement principles,United States v. Western Processing Co, 734 F. Sup. 930(W.D. Wa. 1990); United States v. Stringfellow, 661 F. Sup. 1053

[218 Conn. 608]

     (C.D. Cal. 1987). Although the federal hazardous wastestatutes at issue in those cases; the Resource Conservationand Recovery Act, 42 U.S.C. § 6901 through 6987;the Comprehensive Environmental Response, Compensationand Liability Act, 42 U.S.C. § 9601 through 9662; aresubstantially different from our own Solid WasteManagement Act, the problems of detecting causation andassigning responsibility are present in theirapplication as they are in ours. We are persuaded,therefore, that judicial review of any environmentalcleanup order should be conducted with reference to theprinciples of joint and several liability, as limitedby the doctrine of apportionment, expressed in thoseRestatement sections.

Section 433B of the Restatement (Second) of Tortsprovides: "Burden of Proof. (1) Except as stated inSub-sections (2) and (8), the burden of proof that thetortious conduct of the defendant has caused the harmto the plaintiff is upon the plaintiff. (2) Where thetortious conduct of two or more actors has combined tobring about harm to the plaintiff, and one or more ofthe actors seeks to limit his liability on the groundthat the harm is capable of apportionment among them,the burden of proof as to the apportionment is uponeach actor. (3) Where the conduct of two or more actorsis tortious, and it is proved that harm has been causedto the plaintiff by only one of them, but there isuncertainty as to which one has caused it, the burdenis upon each such actor to prove that he has not causedthe harm."21 (Emphasis added.) Section 433A ofthe Restatement provides: "Apportionment of Harm toCauses. (1) Damages for harm are to be apportioned

[218 Conn. 609]

     among two or more causes where (a) there are distinctharms, or (b)there is a reasonable basis for determiningthe contribution of each cause to a single harm.(2) Damages for any other harm cannot be apportionedamong two or more

As part of its review of the DEP cleanup order inthis case, the trial court should determine whetherthe agency ever addressed the issue of combined oralternative causes for the environmental harm caused andmade the requisite findings necessary for imposing uponthe plaintiffs responsibility for cleaning up the wastedeposited by other dumpers. Only in the event thatthere is no reasonable basis for apportionment of thedamages caused to the environment among those whoseillegal activities have contributed to such harm wouldjoint and several liability be appropriate. Restatement(Second), Torts 433A. If the record on these issues isinadequate, the proper course for the trial court wouldbe to remand the matter for further proceedings onthose issues. General Statutes 4-183 (j); see, e.g.,Harrison v. Commissioner, 204 Conn. 672, 679,529 A.2d 188 (1987); Department of Health Services v. Commissionon Human Rights & Opportunities, 198 Conn. 479, 488,503 A.2d 1151 (1986); Feinson v. ConservationCommission, 180 Conn. 421, 429-30, 429 A.2d 910 (1980).

If, after applying these considerations, the trialcourt finds that the scope of the cleanup order issuedto the plaintiffs constituted an abuse of agency discretion,it should vacate that portion of the order requiring the

[218 Conn. 610]

     plaintiffs to clear the site and remand the matter tothe administrative agency for either a modification ofthe order with or without additional hearings, or, ifthe agency so chooses, dismissal of the order.

Although we affirm the judgment with respect to theissue of liability, we reverse the portion of the judgmentin which the trial court declined to review theDEP remedial orders and we remand the case to the trialcourt for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

1. Between April and September, 1985, General Statutes(Rev. to 1985) 22a-207 (4) and (6) provided: "(4)`Solid waste facility' means any solid waste disposalarea, volume reduction plant or resource recoveryfacility operated by any municipal or regionalauthority or any person if such area, plant or facilityhandles more than five tons a year of solid waste. . . "(6) `Solid waste disposal area' means the location utilizedfor ultimate disposal of wastes as approved by the department."

2. The PEP orders allege violations of No. 85-334,2 of the 1985 Public Acts, subsequently amended by No.85-613, 147, of the 1985 Public Acts and then codified asGeneral Statutes (Rev. to 1987) 22a-208 (b)and (c),later renumbered and revised as General Statutes (Rev.to 1991) 22a-208a (b)and (c). Number 85-334, 2 of the1985 Public Acts was not effective until either May 22,1985 (the date it was passed), or June 16, 1985 (thedate it was signed). Public Acts 1985, No. 85-334, 8.Number 85-613, 147 of the 1985 Public Acts, whichamended No. 85-334, 2, was effective as of either June5, 1985 (the date it was passed), or July 10, 1985 (thedate it was signed). Public Acts 1985, No. 85-613, 154.The hearing officer based his decision on a finding ofillegal acts committed between April and September,1985. While the plaintiffs do not address this chronologicaldiscrepancy directly, parts of their argumentappear to focus upon the effective date of No. 85-334of the 1985 Public Acts. We note, however, that thealleged violations of No. 85-334, 2 of the 1985 PublicActs would also have violated preexisting GeneralStatutes (Rev. to 1985) 22a-208 (c). The substantivechanges to law contained in No. 85-334, 2, of the 1985Public Acts are generally not relevant to the issuesdisputed by the plaintiffs. We need not, therefore,consider whether the changes contained in the 1985enactments, each of which provided that it should "takeeffect from its passage"; Public Acts 1985, No. 85-334,8; Public Acts 1985, No. 85-613, 154; were intended tobe retroactive to the date of passage prior to the datethose acts were approved by the governor. The three different versions of the statute in effectduring the period in question (April through September,1985), are as follows. In April, 1985, General Statutes (Rev. to 1985)22a-208 (c) provided: "No solid waste facility shall bebuilt, established or altered after July 1, 1971, untilthe plan and design and method of operation of the samehave been filed with the department and approved by thecommissioner by the issuance of a permit, provided,nothing in this chapter or in chapter 446e shall beconstrued to limit the right of any local governingbody to regulate, through zoning, land usage for solidwaste disposal. No solid waste facility shall beoperated on or after October 1, 1984, unless the owneror operator of such facility has filed a closure planwith the commissioner which he has approved as incompliance with regulatory standards adopted pursuantto section 22a-209. The commissioner shall send awritten notification of any application for a permit tothe chief elected official of each municipality in whichthe proposed facility is to be located within five businessdays of the date on which any such application is filed." Public Acts 1985, No. 85-334, 2, passed on May 22,1985 and signed into law on June 16, 1985, amendedGeneral Statutes 22a-208 by changing former subsection(c) to (b)and adding a new subsection (c), as follows:"(b)No solid waste facility shall be built orestablished and no solid waste facility for which apermit to construct is required shall be altered afterJuly 1, 1971, until the plan, design and method ofoperation of such facility have been filed with thedepartment and approved by the commissioner by theissuance of a permit to construct, provided, nothing inthis act or chapters 446d and 446e of the generalstatutes shall be construed to limit the right of anylocal governing body to regulate, through zoning, landusage for solid waste disposal. The commissioner shallsend a written notification of any application for apermit to construct to the chief elected official ofeach municipality in which the proposed facility is tobe located, within five business days of the date onwhich any such application is filed. "(c) No solid waste facility for which a permit toconstruct is required shall be operated on and afterthe effective date of this act, except for performancetesting approved by the commissioner, unless suchfacility has been issued a permit to operate. Thecommissioner may issue such permit upon determinationthat the facility (1) will be operated in accordancewith applicable laws or regulations, (2) has beenconstructed in accordance with a permit issued pursuantto subsection (b)of this section, and (3) has satisfactorilycompleted any performance tests required bythe commissioner. All operating facilities holding avalid permit to construct on or before the effectivedate of this act shall be issued a permit to operateand shall be allowed to continue operations prior tothe issuance of such permit to operate." Section 8 of this act provides: "This act shall takeeffect from its passage." New subsection (b)was furthermodified by a technical corrections act, Public Acts1985, No. 85-613, 147, passed on June 5, 1985, andsigned into law on July 10, 1985: "Sec. 147. Subsection(b) of section 2 of public act 85-334 is repealed andthe following is substituted in lieu thereof: "(b) No solid waste facility shall be built orestablished and no solid waste facility [for which apermit to construct is required] WITHOUT A PERMIT TOCONSTRUCT shall be altered after July 1, 1971, untilthe plan, design and method of operation of suchfacility have been filed with the department andapproved by the commissioner by the issuance of apermit to construct, provided, nothing in this actor chapters 446d and 446e of the general statutesshall be construed to limit the right of any localgoverning body to regulate, through zoning, landusage for solid waste disposal. The commissioner shallsend a written notification of any application fora permit to construct to the chief elected official ofeach municipality in which the proposed facility is tobe located, within five business days of the date onwhich any such application is filed." This section also took effect at its passage. PublicActs 1985, No. 85-613, 154. These amended subsections, now renumbered GeneralStatutes (Rev. to 1991) 22a-208a (b) and (c), haveremained unchanged to date.

3. Section 2(b)of Public Acts 1985, No. 85-334 alsoprohibits "constructing" or "maintaining" anunpermitted solid waste disposal facility. The hearingofficer concluded that the appellants had committedthese illegal acts as well as "operating" the facility"by dumping," which we construe to mean they "altered"the facility and "operated" the facility "by altering"it within the meaning of 2(b) of the Act, i.e., byadding to the volume of waste present at the facility. Since there is overwhelming evidence that the dumpexisted as a solid waste disposal facility beforeApril, 1985, when the plaintiffs are first alleged tohave engaged in their illegal activities, the officer'sconclusion that the appellants "constructed" thefacility is unsupported. The trial court did notspecifically address the hearing officer's conclusionthat the plaintiffs had "maintained" the facility.Since neither party has made arguments with respect tothe plaintiffs' alleged "construction or maintenance,"as distinct from "operation," of the facility, we willassume that the PEP has abandoned any claim that thetrial court's dismissal of the appeal should be upheldon the alternative ground that there is substantialevidence that the plaintiffs "constructed" or"maintained" the facility.

4. As a general rule, we consider statutory issuesbefore reaching constitutional questions. See, e.g.,State v. DellaCamera, 166 Conn. 557, 353 A.2d 750(1974). In this case, however, we cannot evaluate thehearing officer's conclusion that CBWC and its officersviolated the statute until we have first construed thestatute, because our construction of the statute isintertwined with the constitutional issue of vagueness.

5. See footnote 2, supra. Number 85-334, 2and No. 85-613, 147 of the 1985 Public Acts simplyamended preexisting General Statutes 22a-208 (c),which provided in pertinent part: "No solid waste facilityshall be . . . altered after July 1, 1971 until the plan anddesign and method of operation of the same have been filedwith the department [of environmental protection] andapproved by the commissioner by the issuance of a permit. . . .No solid waste facility shall be operated onor after October 1, 1984, unless the owner or operatorof such facility has filed a closure plan with thecommissioner which he has approved as in compliancewith regulatory standards adopted pursuant to section22a-209." General Statutes (Rev. to 1985) 22a-208 (c). The only changes made by the subsequent 1985 publicacts that are relevant to the issues before us are (1)the addition of language limiting the requirement for a"permit to alter" to: first, facilities "for which apermit to construct is required"; Public Acts 1985, No.85-334; and second, facilities "without a permit toconstruct"; Public Acts 1985, No. 85-661; and (2) thesubstitution of a permit requirement for operation of afacility "for which a permit to construct is requiredon and after the effective date" of No. 85-334 for theprevious closure plan approval requirement foroperation of any solid waste facility "on or afterOctober 1, 1984." General Statutes (Rev. to 1985)22a-208. These changes do not affect the charges againstthe plaintiffs except by changing the DEP's evidentiaryburden for charges of illegal "operation" of a facilityto include proof that the facility was one "for which apermit to construct is required" or, after July 10,1985, one "without a permit to construct." Thisdecision is rendered based upon the parties' apparentassumption that the DEP had to prove that the facilitywas a "solid waste disposal facility" for which apermit to construct was required.

6. Neither General Statutes 22a-207 (4) or (6) wereaffected by the statutory modifications enacted in 1985.

7. A vague statute that creates a risk of arbitraryor discriminatory enforcement might be unconstitutional,alternatively, as an impermissible delegation of legislativeauthority. Cf. Bottone v. Westport, 209 Conn. 652, 667-68n. 14, 553 A.2d 576 (1989).

8. The photographic exhibits were taken on August 20,1985 (Exhibits 7A, 7B, 8A, 8B) and October 4, 1985(Exhibits 9A-F, 10). Thus, some were taken after theperiod of time during which the appellants were allegedto have committed their illegal acts. The appellantshave not claimed that the photographs misrepresent thegeneral condition of the site at the time they didtheir dumping. In addition, the individual appellantsthemselves testified that when they began dumping theentire site area was "just about . . . filled in."

9. The plaintiffs point out that we recently affirmed atrial referee's decision setting aside a contemptcitation issued against Thomas Capozziello, presidentof BWC, for continuing solid waste disposal on propertyhe owned that adjoined another property he merelyleased. Carothers v. Capozziello, 215 Conn. 82, 107-110,574 A.2d 1268 (1990). In that context, however, we hadno occasion to construe the statutory definition of "location"contained in General Statutes 2-207(6) [22a-207(6)],but addressed ourselves to the terms of the preliminaryinjunction at issue as compared to the location of thealleged illegal conduct. Because the order upon whichthe injunction was based claimed violations at theleased site but not at the owned site, we held that thetrial court's interpretation of the scope of theinjunction was unduly expansive.

10. The Regulations of Connecticut State Agencies,22a-209-1 provides the following definition of thestatutory term "alter": `Alter' (1) when referring to a solid waste facilitywhich has not permit, means to change the existingconfiguration or method of operation of the facility inany manner, including but not limited to adding to thevolume of solid waste deposited at the facility; (2)when referring to a solid waste facility which holds apermit, means to change the approved configuration ormethod of operation of the facility in any manner,including but not limited to adding to the approvedvolume of solid waste deposited at the facility."

11. See footnote 3, supra.

12. See Regs., Conn. State Agencies 22a-209-6,22a-209-7. The Regulations of the Connecticut StateAgencies, 22a-209-1 defines "operator" as "a person who isultimately responsible for maintaining the solid wastefacility in conformance with applicable statutes andregulations and the facility permits." This definitionis unhelpful when one is charged with "operating" afacility that does not have a permit.

13. The appellants have not contested the hearingofficer's findings imposing liability upon theCapozziello brothers as individuals for their personalparticipation in "operating" the facility. By virtue ofsuch participation, we affirm the trial court'sjudgment against Russell and Geno Capozziello in theirindividual capacities with respect to liability.Part III of this opinion, however, also applies to theDEP orders issued against them as individuals.

14. The full text of General Statutes 22a-207 (6)defines "[s]olid waste disposal area" as "the locationutilized for ultimate disposal of wastes as approved bythe department." The phrase "as approved by the department"presumably ensures that dumping outside the authorizedboundaries of a permitted solid waste facility willconstitute unpermitted dumping. In this case, ofcourse, because there was no permit, there was nolocation "approved by the department."

15. The plaintiffs argued to the trial court that thematerials deposited at the site were not "unwanted ordiscarded" because the residents had authorized thedumping as a means of leveling off their slopingbackyards. They have not, however, appealed the trialcourt's conclusion that "at the time an outside partycontracts with a demolition company, the debris resultingfrom the demolition of the building or site,becomes unwanted and falls within the statutorydefinition of solid waste; the debris is `discarded' or`unwanted' by the person or party who contracted tohave the particular structure demolished" and thereforethat "the demolition debris deposited at Clearview[Drive] constituted solid waste as defined by GeneralStatutes Section 22a-207 (3)." (Emphasis in original.)In the words of the trial court: "Simply because otherparties, thereafter, may wish to obtain the debris fromthe demolition company, by purchase or otherwise, doesnot remove it from the Section 22a-207 (3) definition;to so construe the statute, in the circumstances ofthis case, would be to ignore the expressed objectiveof protecting the environment and the public fromunsafe commercial operations presenting risks of fire,odor, air pollution, water pollution, etc." Ourdiscussion of the words "discarded" or "unwanted" inCarothers v. Capozziello, 215 Conn. 82, 107-110,574 A.2d 1268 (1990), was in the context of allegedviolations of General Statutes 22a-250 [c], thelittering statute, and does not affect this case.

16. "[General Statutes (Rev. to 1985)] Section22a-209. REGULATIONS. The commissioner shall promulgateregulations governing solid waste management, andpermits, as provided for in subsection (c) of section22a-208, shall be conditioned upon conformance withsuch regulations as well as applicable laws." Thisstatute, formerly enacted as General Statutes 19-524c,was operative in February, 1985, when the discussedregulations became effective. We note that, had the regulations validly exempted"clean fill" from the definition of solid waste, theburden would remain on the plaintiffs to prove thatthe materials they dumped fell within the exemption.See Conservation Commission v. Price, 193 Conn. 414,424, 479 A.2d 187 (1984); 2 A J. Sutherland,Statutory Construction (4th Ed. Sands) 47.22.

17. We note that common building brick weighsapproximately 120 pounds per cubic feet, or 3240 poundsper cubic yard. R. Perry, Engineering Manual (3d Ed.)p. 4-2; G. Brady & H. Clauser, Materials Handbook (11thEd.) p. 111. One twenty-yard truckload of buildingbricks would therefore weigh 64,800 pounds, or 32tons. As Russell Capozziello explained, twenty yards ofsuch heavy materials would be carried in several loadsbecause of its weight. Even if a brick house producingtwenty cubic yards of brick was transported in sixloads, each load would be 5 tons. Light concrete blockweighs less, only 65 pounds per cubic foot, or 1755pounds per cubic yard. R. Perry, supra. If, as Russellindicated, one concrete building that the plaintiffsdumped at the site had produced twenty cubic yards ofthis material, that debris alone would have weighed 35,100 pounds, or 17.6 tons. Uncompressed pine boardsweigh only 26 pounds per cubic foot, or 702 pounds percubic yard. Id. A twenty yard load of pine wouldtherefore weigh 14,040, or 7 tons. Even if we assumethat none of the plaintiffs' trucks were ever full, andthat the weights approximated above refer to a compactsolid block of each material rather than a loose load ofdemolition debris, it is plain that forty-five loads of anyof these materials would far exceed the five ton requirement.

18. The legislature's recent amendment to GeneralStatutes (Rev. to 1991) 22a-207 (6), while irrelevantto the disposition of this case, is illuminating. Aspresently worded, the new definition of "[s]olid wastedisposal area" is the "land and appurtenances thereonand structures, including a landfill or other landdisposal site, used for the disposal of more than ten cubicyards of solid waste." (Emphasis added.) Under therevised statute, then, the appellants' dumping wouldhave exceeded the statutory minimum ninety times over.

19. General Statutes 22a-6a (b) provides inpertinent part: "Whenever two or more persons knowingly ornegligently violate any provision of section . . . 22a-208,22a-208a . . . or any regulation, order or permit adopted orissued thereunder by the commissioner and responsibility forthe damage caused thereby is not reasonably apportionable,such persons shall, subject to a right of equal contribution,be jointly and severally liable under this section." PublicActs in 1986, 1987, 1989 and 1990 made technical changes andadded references to other statutory sections but in all otherrespects the statute is the same as that in effect in 1985.

20. General Statutes 22a-6a was enacted as 1 of No.73-665 of the 1973 Public Acts. Senator Philip N. Costello,Jr., sponsor of the original bill, substitutesenate bill No. 1973, selectively summarized thesection: "It provides that any person who violates anystatute, regulation, order or permit administered,adopted or issued by the Commissioner of EnvironmentalProtection shall be liable to the state for damages tothe environment caused by such violation." 16 S. Proc.,Pt. 8, 1973 Sess., p. 3541. Similarly, RepresentativeRichard H. Wagner, offering the act to the House ofRepresentatives, summarized: "[T]his rather lengthy billaccomplishes two fundamental purposes within the Departmentof Environmental Protection. It makes any person whoviolates any statute, regulation, order or permitadministered, adopted or issued by the Commissioner be liableto the State for the damages to the environment caused byhis violation . . . ." 16 H.R. Proc., Pt. 15, 1973 Sess., p. 7780.

21. In Gutowski v. New Britain, 165 Conn. 50,327 A.2d 552 (1973), we adopted, in part, 433B of theRestatement (Second), Torts, with respect to intentionallytortious acts performed in concert. Id., 55. More recently,the Appellate

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