Recycling, Inc. v. Commissioner of Energy & Environmental Protection , 179 Conn. App. 127 ( 2018 )

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RECYCLING, INC. v. COMMISSIONER OF
ENERGY AND ENVIRONMENTAL
PROTECTION
(AC 38868)
Alvord, Keller and Pellegrino, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dismissing its administrative appeal from the decision by the defendant
Commissioner of Energy and Environmental Protection denying its
application for an individual recycling permit and revoking its general
permit to operate a recycling facility. A hearing officer for the defendant
found that the plaintiff had submitted false, incomplete and incorrect
information regarding its ownership and control in its application for
an individual permit, and that the plaintiff had demonstrated a pattern
or practice of inability or unwillingness to comply with the defendant’s
permit requirements in violation of statute (§ 22a-6m [a]). The hearing
officer also found that the plaintiff, over a period of five years, had made
numerous material omissions in its representations to the Department of
Energy and Environmental Protection in violation of certain department
regulations (§ 22a-3a-5 [d] [2] [B] and [C]), and that C, who was the
beneficial owner of the plaintiff, had disguised his ownership to keep
his past criminal convictions from tainting the permitting process. On
appeal, the plaintiff claimed, inter alia, that the trial court improperly
upheld the denial of its application for an individual recycling permit
and the revocation of its general permit to operate a recycling facility,
and that the hearing officer had applied an erroneous standard of review
and improperly excluded relevant evidence. Held:
1. The trial court properly dismissed the plaintiff’s appeal, there having been
substantial evidence in the record to support the hearing officer’s finding
that the plaintiff had demonstrated a pattern or practice of noncompli-
ance with the defendant’s permit requirements to warrant the revocation
of its general permit registration and the denial of its application for
an individual permit; the plaintiff made numerous material omissions
in its representations to the department in violation of § 22a-3a-5 (d)
(2) (B) and (C), which require the disclosure of all relevant and material
facts, as the plaintiff’s application for the individual permit did not
disclose its relationship to C or that C was involved in its formation,
operations and financing, the plaintiff did not disclose the documents
that would allow C to divest other individuals of control over the plaintiff,
and the evidence of the allegations in a related civil action that involved
C suggested a conscious effort to deceive the department throughout
the permitting process.
2. The plaintiff could not prevail on its claim that the denial of its permit
application was not warranted, even if the plaintiff’s compliance history
with the defendant’s permit requirements demonstrated a pattern of
noncompliance; § 22a-6m (a) expressly grants the department authority
to deny an application for a permit where, as here, there is a pattern
or practice of failure to disclose material and relevant information, § 22a-
3a-5 (d) (2) (B) of the department’s regulations permitted revocation
of the plaintiff’s permit because of its failure to disclose all relevant
and material facts in its application or where information the plaintiff
had provided in its application was false or incomplete, and the depart-
ment, in exercising its authority to deny the permit application, did not
act unreasonably, arbitrarily, illegally or in abuse of its discretion.
3. The plaintiff’s claim that the trial court improperly upheld the defendant’s
permit decisions because the hearing officer failed to apply the correct
standard of review was unavailing: the plaintiff’s rights to fundamental
fairness in the administrative hearing were not violated on the basis of
a statement by the hearing officer that the question before her was
whether the record supported the permit decisions by the department’s
staff, as the hearing officer conducted a thorough review of the volumi-
nous record, and the level of her analysis was indicative of her fair and
impartial de novo review of the record.
4. The hearing officer did not abuse her discretion by excluding evidence the
plaintiff had sought to present as to the department’s prior enforcement
actions against other waste facilities; that evidence, in the absence of
a claim of selective enforcement, had no logical tendency to aid the
trier in the determination of whether the plaintiff had misrepresented
and omitted pertinent facts in its application, and the plaintiff conceded
that it was not making a claim of selective enforcement.
5. The trial court’s finding that there was no bias on the part of the defendant’s
administrative adjudicators was not clearly erroneous, the plaintiff hav-
ing failed to show actual bias and, therefore, failed to overcome the
presumption that administrative agents acting in an adjudicative capacity
are not biased; the plaintiff pointed to no facts in the record that sug-
gested a prejudgment of adjudicative facts, any claimed bias on the part
of the defendant was irrelevant, as the defendant had recused himself
from the proceedings, evidence of adverse actions or conclusions drawn
against the plaintiff was insufficient to prove actual bias, and the plaintiff
cited no authority for the proposition that an entire administrative
agency would be biased as a result of an individual commissioner’s
public statement on a contested matter.
Argued October 10, 2017—officially released January 9, 2018
Procedural History
Appeal from the decision by the defendant denying
the plaintiff’s application for an individual recycling
permit and revoking its general permit to operate a
recycling facility, brought to the Superior Court in the
judicial district of New Britain, where the court, Schu-
man, J., granted the motion to intervene filed by the
city of Milford; thereafter, the matter was tried to the
court, Hon. Henry S. Cohn, judge trial referee; judgment
dismissing the appeal, from which the plaintiff appealed
to this court; subsequently, the court, Hon. Henry S.
Cohn, judge trial referee, issued an articulation of its
decision. Affirmed.
Alan M. Kosloff, for the appellant (plaintiff).
David H. Wrinn, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Kirsten S. P. Rigney, assistant attorney gen-
eral, for the appellee (defendant).
David A. Slossberg, with whom was Amy E. Sou-
chuns, for the appellee (intervenor city of Milford).
Opinion
ALVORD, J. The plaintiff, Recycling, Inc. (RCI),
appeals from the judgment of the trial court dismissing
its administrative appeal from the decision of the defen-
dant1 Commissioner of Energy and Environmental Pro-
tection (commissioner),2 denying its application for an
individual permit to construct and operate a volume
reduction facility (individual permit) and revoking its
general permit to construct and operate certain recycl-
ing facilities (general permit). On appeal, RCI claims
that the trial court erred in dismissing its appeal
because: (1) the denial and revocation was not war-
ranted under the circumstances of this case; (2) the
hearing officer violated its rights to a fair hearing by
applying an erroneous standard of review; (3) the hear-
ing officer erroneously excluded relevant evidence; and
(4) the commissioner engaged in improper conduct dur-
ing the proceedings. We affirm the judgment of the
trial court.3
The following facts and procedural history are rele-
vant to RCI’s appeal. In 2008, RCI held a general permit
registration to operate a limited recycling facility at 990
Naugatuck Avenue in Milford. In February of that year,
RCI submitted an application to the Connecticut
Department of Energy and Environmental Protection
(department or DEEP) for an individual permit, which
would allow RCI to increase the volume and breadth
of its recycling operations. At the time, RCI was purport-
edly owned by Darlene Chapdelaine. Chapdelaine cor-
responded with the department on numerous occasions
regarding the application for an individual permit, and
represented herself as the sole owner of RCI. On Febru-
ary 10, 2012, nearly four years after RCI submitted its
application, the department issued a tentative determi-
nation to approve RCI’s application for an individual
permit.
In April, 2012, before the department had made a
final determination on the individual permit application,
department staff learned of a lawsuit between Chapde-
laine and Gus Curcio, Sr. over ownership of RCI. The
pleadings in that lawsuit alleged that Curcio disguised
his true ownership of RCI from the department to keep
his past criminal convictions from tainting the permit-
ting process. Documents attached to the complaint
undermined RCI’s representations to the department
that Chapdelaine was the sole owner of RCI. On October
23, 2012, the court rendered judgment concluding that
Curcio was the beneficial owner of 100 percent of RCI.
Consequently, in November, 2012, the department
issued a tentative determination to withdraw its
approval and deny RCI’s application for an individual
permit. The department also notified RCI that it
intended to revoke its general permit registration. The
department explained that the basis for its denial and
revocation was RCI’s failure to disclose Curcio’s exten-
sive ownership interests and its false or misleading
representations as to the control of RCI. On January
24, 2013, the department issued a revised and amended
notice of intent to revoke RCI’s general permit registra-
tion, adding, as a basis for revocation, RCI’s and Cur-
cio’s inability or unwillingness to comply with permit
requirements. The notice also relied on a June 11, 2012
notice of violation (NOV) issued to RCI by the
department.
On February 27, 2013, the department provided RCI
with a compliance conference in accordance with Gen-
eral Statutes § 4-182 (c),4 at which it was afforded the
opportunity to demonstrate to department staff that it
had met all of the requirements for lawful retention of
its general permit. On May 17, 2013, the department
notified RCI that it had not changed its position as a
result of the compliance conference and that justifica-
tion remained to deny RCI’s application for an individ-
ual permit and revoke its general permit registration.
On November 12, 2013, a five day hearing commenced
before a department hearing officer.5 On August 25,
2014, the hearing officer issued a proposed final deci-
sion concluding that RCI had submitted false, incom-
plete, and incorrect information regarding its
ownership and control in its application to the depart-
ment for an individual permit, and that it had demon-
strated a pattern or practice of inability or unwillingness
to comply with the department’s permit requirements.
The hearing officer found, inter alia, that Curcio tightly
controlled RCI’s financing, expenditures, and daily
operations. In the proposed final decision, the hearing
officer recommended that the department deny RCI’s
application for an individual permit and revoke RCI’s
general permit registration.
RCI subsequently raised exceptions to the proposed
final decision. On November 12, 2014, Deputy Commis-
sioner Susan K. Whalen6 heard argument on the excep-
tions. On February 5, 2015, the deputy commissioner
adopted the proposed final decision and denied RCI’s
individual permit application and revoked its general
permit registration.
In March, 2015, RCI appealed to the Superior Court,
challenging the department’s decision. The trial court
heard oral argument on January 7, 2016. On January 20,
the court dismissed the appeal. This appeal followed.
I
RCI first claims that the court erred in upholding the
deputy commissioner’s decision because the depart-
ment’s denial of its application and revocation of its
general permit registration was ‘‘arbitrary and capri-
cious and an abuse of discretion . . . .’’ Specifically,
it argues that department ‘‘[s]taff failed to demonstrate
a pattern or practice of noncompliance sufficient to
warrant revocation of the general permit or denial of
the individual permit,’’ and ‘‘[e]ven if RCI’s compliance
history demonstrated a pattern of noncompliance, revo-
cation and denial is not warranted.’’ We disagree.
The following additional facts, which are based on
the hearing officer’s findings, are relevant to this claim.
The hearing officer concluded that RCI provided false
and incomplete information regarding its ownership
in violation of section 6 of the general permit,7 which
demonstrated a pattern or practice of noncompliance
with the terms and conditions of the general permit.
James Barrett, who was nominated by Curcio as RCI’s
first president in 2008, testified that he owned all of
RCI’s stock at the time of the general permit application.
That application requires, in relevant part, that the appli-
cant or permittee (1) identify the owner and operator
of the facility; (2) sign the application certifying that it
is ‘‘true, accurate and complete’’; and (3) report any
changes in information provided. Barrett testified that
he did not remember signing the general permit applica-
tion. The signature on the registration certificate of the
application read ‘‘Barret,’’ with one ‘‘t’’ rather than two.
Additionally, a letter concerning RCI’s use of its prop-
erty for recycling operations accompanied the applica-
tion. The letter purported to be from and signed by
Barrett, but Barrett testified that he did not write or
sign the letter. Barrett testified that the signature on
the application was not his, and that he did not know
who signed the letter in his name.8
As the hearing officer found, ‘‘Curcio considered him-
self to be the owner of RCI and controlled RCI through
Barrett.’’ Barrett’s testimony supported this conclusion.
He testified, in relevant part, that: (1) he did not know
where the books and records for RCI were kept and
maintained; (2) he could not recall signing more than
one check on behalf of RCI; (3) checks were ‘‘signed’’
by a rubber stamp of his signature, which he thought
was kept by Chapdelaine; (4) he knew that Curcio was
‘‘financing the [department] application process,’’ but
did not know whether he was the sole source of money;
(5) he was unaware of whether RCI paid any taxes
while he was president; (6) he was unaware of whether
operations were ongoing at the 900 Naugatuck site; and
(7) when he filed for bankruptcy in December, 2008,
he did not list RCI as a business in which he was an
officer or director or in which he owned 5 percent or
more of the voting securities within the past six years.
In October, 2009, Chapdelaine replaced Barrett as
the president of RCI. Despite the requirement that a
registrant or permittee report any changes provided on
the general permit application to the department, RCI
did not correct the registration information as required
until February, 2010, when Chapdelaine signed the reg-
istration renewal application as president of RCI.
Despite Chapdelaine’s representations to the depart-
ment that she owned and controlled the operations of
RCI, the hearing officer found that ‘‘Chapdelaine’s claim
that she [was] the owner of RCI and the exclusive holder
of 100 percent of RCI’s stock is not supported by the
record and the logical conclusions that can be drawn
from it.’’ She based this conclusion, in relevant part, on
the facts that: (1) there was no evidence that shares of
RCI’s stock were registered in Chapdelaine’s name; (2)
Chapdelaine executed a document shortly after her
nomination as president providing that she is the owner
of record of RCI ‘‘ ‘in name only’ ’’ and referencing other
documents that show that she could be dispossessed of
this ownership at any time by Curcio; (3) a shareholder’s
agreement signed by Chapdelaine in 2011 explicitly
stated that she owned 10 percent or ten shares of RCI’s
stock and was required to offer it to RCI and the other
stockholders before selling them to a third party; and (4)
evidence received regarding the 2012 litigation between
Curcio and Chapdelaine over the control of RCI
revealed that Curcio nominated Chapdelaine to be the
sole officer and director of RCI to facilitate the filing
of RCI’s permit application. The hearing officer further
found that ‘‘[Chapdelaine] was not able to indepen-
dently operate RCI. She did not decide how RCI would
spend its money. She even lacked the power to maintain
her own position with RCI; the ‘beneficial paperwork’
she signed could cause her to be removed from RCI at
any time.’’
The hearing officer concluded that Curcio controlled
the major decisions of RCI. Curcio directed that RCI
be formed, negotiated the purchase of the business’
property, decided to open a recycling facility at the
property, nominated RCI’s presidents, and controlled
RCI with and through them. In his civil action against
Chapdelaine, Curcio set out to prove his ownership and
control of RCI. A copy of Curcio’s sworn complaint
was admitted into evidence at the hearing, along with
a transcript of the trial in that case. On the basis of
this evidence, the hearing officer found that Curcio
‘‘nominated Chapdelaine to be the sole officer and direc-
tor of RCI for the purpose of facilitating the filing of
RCI’s permit application. She has, at all times, been
required and directed to operate the business of the
corporation at his direction and with his express
approval.’’ During the hearing, Curcio ‘‘tried to repudi-
ate his prior sworn statements that he owned or was
the owner of RCI, even when they were read to him
during this proceeding, through evasive or vague
answers to questions or outright denials of his prior
statements.’’ Curcio claimed that he was always the
‘‘beneficial owner’’ of RCI, with Barrett and Chapde-
laine acting as his ‘‘nominees.’’
The hearing officer also found that RCI misrepre-
sented or omitted pertinent information from its appli-
cation for an individual permit. The individual permit
application requires that a corporation identify its own-
ers, operator, officers, directors, and certain sharehold-
ers. The application must include agreements between
all parties involved in the project for ownership and
control of the facility. It also must include information
that illustrates the relationship between parties
involved in the ownership and control of the facility.
The department expects an application to list all share-
holders holding 20 percent or more of a corporation’s
stock, including stockholders holding stock only as a
nominee for another person or entity or someone hold-
ing a beneficial interest in the stock. The application
also requires an applicant to include all sources of fund-
ing and mortgages.
Despite these requirements, RCI’s application for an
individual permit did not disclose Curcio’s involvement
with RCI. Curcio, who testified that he ‘‘chose to stay
as a beneficial owner’’ and did not want his name associ-
ated with the application, was not listed on the applica-
tion. Curcio was not listed as having an ownership
interest in RCI, being closely involved with its opera-
tions, nor being its sole source of funds. Additionally,
neither the ‘‘ ‘beneficial paperwork’ ’’ that Chapdelaine
signed, allowing her to be removed from RCI at any
time, or the shareholder agreement that stated she
owned 10 percent of RCI stock, was disclosed on the
application.
On the basis of this evidence, the hearing officer
recommended that RCI’s general permit registration be
revoked because (1) RCI failed to disclose who owned
and controlled the company, in violation of section 6
of the general permit; (2) the certifying signature was
false, in violation of § 22a-3a-5 (a) (2) of the Regulations
of Connecticut State Agencies;9 and (3) RCI demon-
strated a ‘‘pattern or practice of noncompliance which
demonstrates the applicant’s unwillingness or inability
to achieve and maintain compliance with the terms
and conditions of the permit,’’10 as evidenced by its
consistent failure to submit required quarterly reports
on time or at all, and accurately or completely,11 as well
as the misrepresentations in its permit application and
submittal of false, incomplete, and inaccurate infor-
mation.
Citing regulations that permit the commissioner to
revoke a permit or deny an application where misrepre-
sentations by the applicant are discovered, the hearing
officer further recommended that RCI’s application for
the individual permit be denied because RCI (1) misrep-
resented12 its stock ownership interests on its applica-
tion; (2) misrepresented information as to who owns
and controls RCI on its application; and (3) did not
provide complete or accurate information about its
finances or funding sources. As noted, the deputy com-
missioner adopted the proposed final decision and
denied RCI’s individual permit application and revoked
its general permit registration. The trial court, in dis-
missing RCI’s appeal, concluded that it failed to disclose
to the department ‘‘all required information.’’13
We begin with the applicable standard of review and
principles of law that guide our analysis. ‘‘[J]udicial
review of an administrative agency’s action is governed
by the Uniform Administrative Procedure Act (UAPA),
General Statutes § 4-166 et seq., and the scope of that
review is limited. . . . When reviewing the trial court’s
decision, we seek to determine whether it comports
with the [UAPA]. . . . [R]eview of an administrative
agency decision requires a court to determine whether
there is substantial evidence in the administrative
record to support the agency’s findings of basic fact
and whether the conclusions drawn from those facts
are reasonable. . . . Neither this court nor the trial
court may retry the case or substitute its own judgment
for that of the administrative agency on the weight of
the evidence or questions of fact. . . . Conclusions of
law reached by the administrative agency must stand
if . . . they resulted from a correct application of the
law to the facts found and could reasonably and logi-
cally follow from such facts. . . . The court’s ultimate
duty is only to decide whether, in light of the evidence,
the [agency] has acted unreasonably, arbitrarily, ille-
gally, or in abuse of [its] discretion.’’ (Internal quotation
marks omitted.) AFSCME, AFL-CIO, Council 4, Local
2405 v. Norwalk, 156 Conn. App. 79, 85–86, 113 A.3d
430 (2015).
General Statutes § 22a-6m (a) provides in relevant
part: ‘‘In exercising any authority to issue, renew, trans-
fer, modify or revoke any permit, registration, certifi-
cate or other license under any of the provisions of this
title, the Commissioner of Energy and Environmental
Protection may consider the record of the applicant
for, or holder of, such permit, registration, certificate
or other license, the principals, and any parent company
or subsidiary, of the applicant or holder, regarding com-
pliance with environmental protection laws of this
state, all other states and the federal government. If
the commissioner finds that such record evidences a
pattern or practice of noncompliance which demon-
strates the applicant’s unwillingness or inability to
achieve and maintain compliance with the terms and
conditions of the permit, registration, certificate or
other license for which application is being made, or
which is held, the commissioner, in accordance with
the procedures for exercising any such authority under
this title, may . . . deny any application for the issu-
ance, renewal, modification or transfer of any such
permit, registration, certificate or other license, or . . .
revoke any such permit, registration, certificate or other
license.’’ Additionally, the department’s rules of prac-
tice14 provide, in relevant part, that the commissioner
may revoke, suspend, or modify a license if ‘‘[t]he
licensee or a person on his behalf failed to disclose all
relevant and material facts in the application for the
license or during any Department proceeding associ-
ated with the application . . . .’’ Regs., Conn. State
Agencies § 22a-3a-5 (d) (2) (B).
A
RCI first contends that ‘‘staff failed to demonstrate
a pattern or practice of noncompliance,’’ pursuant to
§ 22a-6m (a), ‘‘to warrant revocation of the general per-
mit or denial of the individual permit.’’ We disagree.
‘‘The substantial evidence rule governs judicial
review of administrative fact-finding under the UAPA.
. . . An administrative finding is supported by substan-
tial evidence if the record affords a substantial basis
of fact from which the fact in issue can be reasonably
inferred. . . . The substantial evidence rule imposes
an important limitation on the power of the courts to
overturn a decision of an administrative agency . . .
and to provide a more restrictive standard of review
than standards embodying review of weight of the evi-
dence or clearly erroneous action. . . . The United
States Supreme Court, in defining substantial evidence
in the directed verdict formulation, has said that it is
something less than the weight of the evidence, and
the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative
agency’s finding from being supported by substantial
evidence.’’ (Citations omitted; internal quotation marks
omitted.) Dolgner v. Alander, 237 Conn. 272, 281, 676
A.2d 865 (1996).
We conclude that there is substantial evidence in
the record to support the hearing officer’s finding of a
pattern or practice of noncompliance that demonstrates
RCI’s unwillingness or inability to achieve and maintain
compliance with the terms and conditions of the permit.
The record revealed that, over a period of five years,
RCI made numerous material omissions in its represen-
tations to the department, in violation of department
regulations that require disclosure of all relevant and
material facts; see Regs., Conn. State Agencies § 22a-
3a-5 (d) (2) (B) and (C); as well as general permit
requirements that prohibit providing incomplete infor-
mation. See footnote 6 of this opinion. The record sup-
ports the hearing officer’s finding that Curcio, through
Barrett and Chapdelaine, controlled RCI. Barrett’s testi-
mony revealed that he was not involved in, nor familiar
with, RCI’s operations. RCI’s application for the general
permit was signed by a ‘‘James Barret,’’ and Barrett
testified that he did not remember signing the applica-
tion or the letter that accompanied the application.
Although Chapdelaine was involved with RCI’s opera-
tions, ample evidence, such as the document, signed
by Chapdelaine, that proclaimed her the owner of RCI
‘‘in name only,’’ and evidence regarding the 2012 litiga-
tion between Curcio and her, supports the conclusion
that Curcio ultimately controlled RCI’s operations.
Applications for both a general and individual permit
require the applicant to disclose information about the
owners and operators of RCI. Despite these require-
ments, RCI’s application for the individual permit did
not disclose Curcio’s relationship to RCI. RCI did not
disclose that Curcio was involved in the formation,
operations, and financing of RCI. RCI did not disclose
the ‘‘beneficial documents’’ that would allow Curcio
to divest Chapdelaine of control of RCI at any time.
Furthermore, evidence of the allegations in the civil suit
between Curcio and Chapdelaine suggested a conscious
effort to deceive the department throughout the permit-
ting process.
Plainly, we cannot say that there is not substantial
evidence in the record to support the hearing officer’s
finding that RCI demonstrated a pattern or practice of
noncompliance15 to warrant revocation of its general
permit registration and denial of its application for an
individual permit. This court may not ‘‘retry the case
or substitute its own judgment for that of the adminis-
trative agency on the weight of the evidence or ques-
tions of fact.’’ (Internal quotation marks omitted.)
AFSCME, AFL-CIO, Council 4, Local 2405 v. Norwalk,
supra, 156 Conn. App. 85.16
B
RCI next contends that, ‘‘[e]ven if Recycling, Inc.’s
compliance history demonstrated a pattern of noncom-
pliance, revocation and denial is not warranted.’’ We
are unpersuaded.
Courts give administrative agencies ‘‘broad discretion
in the performance of their administrative duties, pro-
vided that no statute or regulation is violated.’’ Forest
Walk, LLC v. Water Pollution Control Authority, 291
Conn. 271, 286, 968 A.2d 345 (2009). ‘‘If the penalty
meted out is within the limits prescribed by law, the
matter lies within the exercise of the [agency’s] discre-
tion and cannot be successfully challenged unless the
discretion has been abused.’’ (Internal quotation marks
omitted.) Wasfi v. Dept. of Public Health, 60 Conn. App.
775, 790, 761 A.2d 257 (2000), cert. denied, 255 Conn.
932, 767 A.2d 106 (2001). Here, the statutes and regula-
tions that govern the department expressly grant the
department authority to deny the individual permit
application and revoke the general permit registration.
Section 22a-6m (a) grants the department authority to
deny an application for a permit, or to revoke a permit
or registration, where the record evidences a pattern
or practice of noncompliance, which the hearing officer
found here in light of RCI’s failure to disclose material
and relevant information to the department. The depart-
ment’s rules of practice and the requirements of the
general permit further provide that the department may
revoke a license where the licensee fails to disclose all
relevant and material facts in an application, or where
information provided on the application proves to be
false or incomplete. See Regs., Conn. State Agencies
§ 22a-3a-5 (d) (2) (B); footnote 7 of this opinion. The
department exercised its authority to deny the individ-
ual permit application and revoke the general permit
registration based on the overwhelming evidence of
failures to disclose material and relevant facts as
required. This court must ‘‘decide whether, in light of
the evidence, the [agency] acted unreasonably, arbi-
trarily, illegally, or in abuse of its discretion.’’ (Internal
quotation marks omitted.) United Technologies Corp.
v. Commissioner on Human Rights & Opportunities,
72 Conn. App. 212, 225, 804 A.2d 1033, cert. denied, 262
Conn. 920, 812 A.2d 863 (2002).We conclude that it
did not.
II
RCI next claims that the court erred in upholding the
deputy commissioner’s decision because the hearing
officer failed ‘‘to apply the correct standard of review
for an administrative proceeding . . . .’’ Specifically,
it argues that ‘‘[t]he administrative hearing process is
founded on a fair and impartial hearing by a neutral
hearing officer . . . conducting a de novo review of
the evidentiary record,’’ and because the hearing officer
in this case ‘‘review[ed] the record for evidence in sup-
port of DEEP’s findings, rather than undertaking an
impartial de novo review’’ of the evidence, ‘‘[t]he
entirety of the hearing officer’s evaluation of the evi-
dence, her findings of fact and her application of those
facts to applicable law, is irretrievably tainted by her use
of the wrong standard of review.’’17 (Emphasis omitted.)
We disagree.
The following additional facts and procedural history
are relevant to this claim. In November, 2012, a depart-
ment hearing officer held a five day hearing on the
issues of the department’s tentative determinations to
deny RCI’s application for an individual permit and to
revoke its general permit registration. RCI, the depart-
ment, and the city of Milford all fully participated in
this hearing. The hearing officer heard the testimony
of eight witnesses, some of whom were called to the
witness stand more than once, including Chapdelaine
and Curcio. Additionally, the hearing officer received
over two thousand pages of documents into evidence.
Following the hearing, the hearing officer issued a
proposed final decision. In the proposed final decision,
she described her duty as hearing officer as follows:
‘‘In order to render my proposed final decision, I must
review the record that has been compiled and devel-
oped during this proceeding to determine whether the
record supports staff’s tentative determination to deny
RCI’s permit application and revoke its general permit
registration. My role is to evaluate the evidence in the
record, find facts based on this record, and make con-
clusions of law based on these facts. The question
before me is not whether I would have reached the
same conclusions as staff, but whether the facts and
evidence in the record support staff’s decision.’’
The proposed final decision contained extensive find-
ings of fact, including findings on the issues of owner-
ship and control of RCI, misrepresentations in RCI’s
individual permit application, and RCI’s noncompliance
with the requirements of its general permit registration.
The hearing officer concluded that ‘‘RCI submitted an
incomplete and misleading application that omitted cer-
tain required information and provided inaccurate and
false information regarding its ownership, financial sta-
bility, and corporate structure and operations,’’ and that
‘‘[t]hese misrepresentations and Curcio’s history of non-
compliance demonstrate a pattern or practice of non-
compliance that shows RCI’s unwillingness or inability
to achieve and maintain compliance with the terms and
conditions of the pending permit.’’ The proposed final
decision recommended that the department deny RCI’s
application for an individual permit and revoke RCI’s
general permit registration.
Both RCI and the defendant filed exceptions in
response to the proposed final decision. On November
12, 2014, the parties appeared before Deputy Commis-
sioner Whalen for oral argument on the exceptions.
In relevant part, RCI argued that the hearing officer’s
statement in the proposed final decision that ‘‘[t]he
question before me is not whether I would have reached
the same conclusions as staff, but whether the facts
and evidence in the record support staff’s decision,’’
appeared to ‘‘defer to staff’s actions,’’ and was indicative
of ‘‘a fail[ure] to undertake a de novo review of the
evidence.’’ In the final decision, the deputy commis-
sioner rejected those arguments and concluded that the
hearing officer conducted ‘‘a balanced and unbiased
review of all of the evidence before her and did not
presume the validity of staff’s actions.’’ She character-
ized the hearing officer’s statement as ‘‘an attempt to
define the limited scope of the proceeding, which was
to determine whether or not there was cause to revoke
RCI’s general permit and deny the application for the
individual permit.’’ The deputy commissioner con-
cluded that ‘‘[i]t is clear to me that the hearing officer
in this case took an impartial and unweighted review
of the evidence before her, as evidenced by the detailed
level of analysis set forth in the [proposed final
decision].’’
On appeal to the trial court, RCI again challenged
the hearing officer’s review of the evidence, arguing
that ‘‘the required de novo review of the evidence was
not undertaken . . . .’’ In its memorandum of decision,
the trial court rejected this argument, stating: ‘‘The hear-
ing officer stated that she would, as required by DEEP
regulations, ‘evaluate the evidence in the record, find
facts based on this record, and make conclusions of
law based on these facts.’ The hearing officer also stated
that ‘[t]he question before me is not whether I would
have reached the same conclusions as staff, but whether
the facts and evidence in the record support staff’s
decision.’ . . . RCI relies on this second sentence to
claim that the hearing officer was merely looking at the
record to see if it supported the DEEP staff’s decision.
On the other hand, the first quoted sentence shows that
the hearing officer intended to meet the requirement[s]
of . . . § 22a-3a-6 (d) (1), requiring a fair and impartial
proceeding and ruling. The hearing officer’s detailed
findings and conclusions of law support this conclusion.
The court will not overturn an administrative hearing
officer’s determination where the full context of the
proposed final decision does not support RCI’s con-
tention.’’18
We begin by setting forth the applicable standard of
review. ‘‘[J]udicial review of an administrative agency’s
action is governed by the Uniform Administrative Pro-
cedure Act (UAPA) . . . and the scope of that review
is limited. . . . When reviewing the trial court’s deci-
sion, we seek to determine whether it comports with the
[UAPA].’’ (Internal quotation marks omitted.) AFSCME,
AFL-CIO, Council 4, Local 2405 v. Norwalk, supra, 156
Conn. App. 85–86. ‘‘[A]lthough we have noted that [a]n
agency’s factual and discretionary determinations are
to be accorded considerable weight by the courts . . .
we have maintained that [c]ases that present pure ques-
tions of law . . . invoke a broader standard of review
than is ordinarily involved in deciding whether, in light
of the evidence, the agency has acted unreasonably,
arbitrarily, illegally or in abuse of its discretion.’’ (Inter-
nal quotation marks omitted.) Miller v. Dept. of Agricul-
ture, 168 Conn. App. 255, 266, 145 A.3d 393, cert. denied,
323 Conn. 936, 151 A.3d 386 (2016). ‘‘The right to funda-
mental fairness in administrative proceedings encom-
passes a variety of procedural protections. . . . The
scope of the right to fundamental fairness in administra-
tive proceedings, like the scope of the constitutional
right to due process that it resembles, is a question of
law over which our review is plenary.’’ (Citation omit-
ted; internal quotation marks omitted.) FairwindCT,
Inc. v. Connecticut Siting Council, 313 Conn. 669, 711,
99 A.3d 1038 (2014).
We cannot conclude that, in light of the record before
this court, RCI’s rights to fundamental fairness in its
administrative hearing19 were violated on the basis of
the hearing officer’s statement that ‘‘[t]he question
before me is not whether I would have reached the
same conclusions as staff, but whether the facts and
evidence in the record support staff’s decision.’’ As
noted, the hearing officer heard five days of evidence.
The hearing officer permitted each party to present
testimony, enter exhibits, and cross-examine witnesses;
she herself questioned witnesses. Over the course of
the five day hearing, the hearing officer repeatedly
referred to building a record, and stated that she would
review the record of the hearing to reach her conclu-
sion. Upon review of the record, she made forty-five
findings of fact, each supported by numerous citations
to the record, and fifteen pages of well reasoned conclu-
sions of law based on the application of the law to those
facts. She credited the ‘‘abundant evidence’’ provided
by the department, and concluded that RCI failed to
‘‘introduce evidence to refute [s]taff’s conclusions and
show that it had provided accurate, truthful and com-
plete information on its permit application . . . [and]
failed to provide any credible and convincing justifica-
tion for its failure to include required information that
would have revealed that Gus Curcio, Sr., was involved
in RCI.’’ It is clear, upon examination of the proposed
final decision, that the hearing officer conducted a thor-
ough review of the voluminous record before her. We
agree with the deputy commissioner and the trial court
that the detailed level of the hearing officer’s analysis
is indicative of her fair and impartial de novo review
of the record before her.20
III
RCI next claims that the court erred in upholding the
deputy commissioner’s decision because the hearing
officer excluded relevant evidence at the hearing. Spe-
cifically, RCI argues that it was improper for the hearing
officer to exclude evidence of prior department deci-
sions or enforcement actions because ‘‘[a] key question
in this proceeding is whether or not RCI’s conduct rea-
sonably warrants revocation of its general permit,’’ and
‘‘[t]hat question cannot be answered in a vacuum; prior
decisions and actions of the agency are relevant to the
consideration of that question.’’ We conclude that the
exclusion of the documents at issue was not improper.
The following additional facts and procedural history
are relevant to this claim. At the hearing, RCI sought
to introduce two hundred pages of evidence relating
to the department’s enforcement actions against other
waste facilities in Connecticut. The department
objected on relevancy grounds. In response, RCI argued
that the documents were relevant to testimony by a
department employee, Darlene Sage, which it interpre-
ted as suggesting a department policy to take adverse
action against applicants or permit holders after a cer-
tain number of violations. Alternatively, both the depart-
ment and the town argued that RCI was precluded from
using the documents to make out a claim for selective
enforcement,21 as RCI had removed selective enforce-
ment from its issues in its revised prehearing exchange
materials. RCI conceded that it was ‘‘not making the
claim of selective prosecution,’’ but argued that the
documents were relevant to the hearing officer in mak-
ing her decision ‘‘as a guide.’’ RCI asserted that the
hearing officer ‘‘should be looking to what the depart-
ment has done in similar and indeed more egregious
circumstances.’’
The hearing officer sustained the objections and
excluded the documents from evidence.22 In the pro-
posed final decision, the hearing officer concluded that
because selective enforcement was not an issue in the
hearing, due to RCI’s removal of selective enforcement
as a legal issue in its prehearing materials, ‘‘evidence of
how other applicants were treated by DEEP is therefore
irrelevant’’ and was properly excluded as such.
RCI raised an exception to the hearing officer’s exclu-
sion of the documents. It argued that the hearing officer
excluded the evidence on the basis that ‘‘it was tanta-
mount to making an offer to show selective prosecu-
tion,’’ and ‘‘[t]hat’s not what the offer was about.’’ RCI
asserted that the offer of evidence ‘‘was about showing
that the agency, if you look at the body of decisions
that it made in this area, is acting arbitrarily and capri-
ciously in an abuse of its discretion . . . .’’ In the final
decision, Deputy Commissioner Whalen concluded:
‘‘The hearing officer properly excluded these exhibits
as irrelevant. Selective enforcement was not an issue
in the proceeding. Where evidence is irrelevant, it is
not error to exclude it.’’
On appeal to the trial court, RCI again challenged the
exclusion of the documents, arguing that ‘‘[t]he hearing
officer’s refusal to take into account past agency
actions, actions which necessarily constitute expres-
sions of agency policy, reflects her bias in favor of
DEEP’s positions in this proceeding . . . .’’ (Citation
omitted.) The trial court concluded that ‘‘the hearing
officer did not deny due process in her ruling, made
under the UAPA’s § 4-178 (1) evidentiary standard.’’
We begin by setting forth the applicable standard
of review and legal principles that guide our analysis.
Pursuant to the UAPA, in contested administrative pro-
ceedings, ‘‘[a]ny oral or documentary evidence may be
received, but the agency shall, as a matter of policy,
provide for the exclusion of irrelevant, immaterial or
unduly repetitious evidence . . . .’’ General Statutes
§ 4-178 (1). The department’s rules of practice23 vest
the hearing officer with the authority to ‘‘[a]dmit or
exclude evidence and rule on objections to evidence
. . . .’’ Regs., Conn. State Agencies § 22a-3a-6 (d) (2)
(E). The department’s rules of practice also prohibit
the hearing officer from admitting ‘‘any evidence which
is irrelevant, immaterial, unduly repetitious, untrust-
worthy, or unreliable.’’ Regs., Conn. State Agencies
§ 22a-3a-6 (s) (1).
‘‘In order to reverse an agency decision on the basis
of an erroneous evidentiary ruling, it is necessary that
the appellant demonstrate that substantial rights of [his]
have been prejudiced because the administrative find-
ings, inferences, conclusions, or decisions are . . .
clearly erroneous in view of the reliable, probative,
and substantial evidence in the whole record.’’ (Internal
quotation marks omitted.) Tomlin v. Personnel Appeal
Board, 177 Conn. 344, 348, 416 A.2d 1205 (1979). ‘‘[T]he
plaintiff bears the burden of demonstrating that a hear-
ing officer’s evidentiary ruling is arbitrary, illegal or an
abuse of discretion.’’ (Internal quotation marks omit-
ted.) Gagliardi v. Commissioner of Children & Fami-
lies, 155 Conn. App. 610, 617, 110 A.3d 512, cert. denied,
316 Conn. 917, 113 A.3d 70 (2015).
Here, RCI has not shown that the hearing officer’s
decision to exclude the evidence of enforcement
actions against other Connecticut waste facilities was
arbitrary, illegal, or an abuse of discretion. Our case
law has defined relevant evidence as ‘‘evidence that has
a logical tendency to aid the trier in the determination
of an issue. . . . One fact is relevant to another if in
the common course of events the existence of one,
alone or with other facts, renders the existence of the
other either more certain or more probable.’’ (Internal
quotation marks omitted.) Merchant v. State Ethics
Commission, 53 Conn. App. 808, 822, 733 A.2d 287(1999). The purpose of the hearing was to determine
whether RCI made misrepresentations and omissions
to the department and failed to comply with the require-
ments of its general permit, justifying denial of its appli-
cation for an individual permit and revocation of its
general permit registration. RCI sought to introduce
evidence of how the department treated other waste
facilities in Connecticut, in rebuttal to alleged testimony
by Sage as to department ‘‘policy’’ in dealing with pur-
ported violators. While Sage did testify about the proce-
dure followed when waste facilities do not comply with
department reporting requirements, she did not express
a department ‘‘policy’’ as to how purported violators
were treated. If anything, her testimony demonstrated
that department staff individually examines and
responds to potential deficiencies in submitted
materials.24
Evidence of how the department treated other waste
facilities, in the absence of a claim for selective enforce-
ment, has no logical tendency to aid the trier in the
determination of the issues of whether RCI misrepre-
sented and omitted pertinent facts to the department
and failed to comply with the requirements of its general
permit, justifying denial of its application for an individ-
ual permit and revocation of its general permit registra-
tion. Accordingly, we agree with the trial court that the
hearing officer’s ruling excluding the evidence under
the UAPA § 4-178 (1)’s evidentiary standard was not
arbitrary, illegal, or an abuse of discretion.
IV
RCI’s final claim is that the court erred in upholding
the deputy commissioner’s decision because the com-
missioner engaged in improper conduct during the pen-
dency of the proceedings. Specifically, it argues that
‘‘the commissioner improperly engaged in ex parte com-
munications with the town of Milford and then publicly
issued an official statement which harshly criticized
Plaintiff and in effect directed DEEP to rule against
plaintiff.’’ It further asserts that ‘‘DEEP staff was aware
of this statement and apparently felt constrained by it
(although they never admitted it).’’ We reject this
claim.25
The following additional facts and procedural history
are relevant to this claim. Before the department issued
its tentative determination to deny RCI’s application
for an individual permit and revoke its general permit,
the city of Milford approached then Commissioner Dan-
iel C. Esty ‘‘to report its understanding of Curcio’s role
at RCI and to impress on him that it was inappropriate
for DEEP to approve RCI’s application for an individual
permit.’’ Following that meeting, Commissioner Esty
released a public statement which read, in part: ‘‘Given
questions now being raised about the ownership of
Recycling, Inc., I do not believe it is appropriate to
move forward with proceedings on a permit application
for that company to operate a solid waste facility in
Milford. . . . Let me speak very frankly here. This
agency would never grant a permit to someone
attempting to stand in for an individual with a back-
ground that would make them ineligible to obtain one.
So, either a court decision will lift the cloud of doubt
now hanging over this project so that the review process
can move forward, or if not, the staff of this agency
will withdraw the preliminary approval it granted and
move to deny this permit application.’’ Following this
statement, but before the hearing, the commissioner
recused himself from these proceedings and designated
Deputy Commissioner Whalen as the final decision
maker.26
On appeal to the trial court, RCI raised this issue for
the first time at oral argument. In its memorandum of
decision, the court concluded: ‘‘Here, RCI has not met
its burden to show that the commissioner violated due
process. He did talk to the town and issue a statement.
But he also recused himself from the hearing as well
as reviewing the hearing officer’s proposed decision
and issuing a final decision. RCI, in addition, did not
brief this issue to the court. The court concludes simi-
larly on an allied issue raised by RCI, that the DEEP
staff was biased in its factual investigation by the com-
missioner’s meeting with the town. RCI has not met its
burden to show that the commissioner’s actions domi-
nated the staff’s position at the administrative hearing,
or earlier.’’
We begin with the applicable standard of review and
principles of law that guide our analysis. ‘‘The applica-
ble due process standards for disqualification of admin-
istrative adjudicators do not rise to the heights of those
prescribed for judicial disqualification. . . . The mere
appearance of bias that might disqualify a judge will
not disqualify an arbitrator. . . . Moreover, there is a
presumption that administrative [adjudicators] acting
in an adjudicative capacity are not biased. . . . To
overcome the presumption, the plaintiff . . . must
demonstrate actual bias, rather than mere potential
bias, of the [adjudicators] challenged, unless the cir-
cumstances indicate a probability of such bias too high
to be constitutionally tolerable. . . . The plaintiff has
the burden of establishing a disqualifying interest.’’
(Internal quotation marks omitted.) Moraski v. Con-
necticut Board of Examiners of Embalmers & Funeral
Directors, 291 Conn. 242, 262, 967 A.2d 1199 (2009).
‘‘In order to prove bias as a ground for disqualifica-
tion, the plaintiff must show more than an adjudicator’s
announced previous position about law or policy . . . .
He must make a showing that the adjudicator has pre-
judged adjudicative facts that are in dispute. . . . A
tribunal is not impartial if it is biased with respect to
the factual issues to be decided at the hearing. . . .
The test for disqualification has been succinctly stated
as being whether a disinterested observer may conclude
that [the administrative adjudicator] has in some mea-
sure adjudged the facts as well as the law of a particular
case in advance of hearing it.’’ (Citations omitted; inter-
nal quotation marks omitted.) Clisham v. Board of
Police Commissioners, 223 Conn. 354, 362, 613 A.2d
254 (1992). ‘‘In addition, we note that [a] determination
of the existence or absence of actual bias is a finding
of fact. . . . It is axiomatic that [t]his court will not
reverse the factual findings of the trial court unless they
are clearly erroneous. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed. . . . In making this determi-
nation, every reasonable presumption must be given in
favor of the trial court’s ruling.’’ (Citations omitted;
internal quotation marks omitted.) Jones v. Connecticut
Medical Examining Board, 129 Conn. App. 575, 588,
19 A.3d 1264 (2011), aff’d, 309 Conn. 727, 72 A.3d
1034 (2013).
RCI has failed to show actual bias on the part of the
administrative adjudicators27 in this case and, therefore,
has failed to overcome the presumption that administra-
tive agents acting in an adjudicative capacity are not
biased. RCI has pointed to no facts in the record that
suggest a prejudgment of adjudicative facts by either the
hearing officer or the deputy commissioner. Counsel
for RCI conceded as much at oral argument before this
court.28 Any claimed bias on the part of the commis-
sioner is irrelevant, as he recused himself from these
proceedings. RCI does little more than point to what it
alleges was ‘‘[a]n overreaction all the way around’’ on
the part of department staff as evidence of bias. Evi-
dence of adverse actions or conclusions drawn against
a party is insufficient to prove actual bias. See, e.g.,
State v. Fullwood, 194 Conn. 573, 581–82, 484 A.2d 435(1984) (‘‘The defendant has equally failed to substanti-
ate his related allegation that the trial judge’s rulings
on various pretrial and trial motions demonstrate actual
bias. Adverse rulings do not themselves constitute evi-
dence of bias.’’); Elf v. Dept. of Public Health, 66 Conn.
App. 410, 426, 784 A.2d 979 (2001) (‘‘[h]ere, the plaintiff
does not point to any indication of actual bias on the
part of the hearing officer other than that she found
facts that supported a revocation of the plaintiff’s
license’’). Furthermore, RCI cites no authority, and we
are unable to find any, for the proposition that an entire
administrative agency would be biased by an individual
commissioner’s public statement on a contested mat-
ter.29 We conclude that the trial court’s finding that there
was no bias was not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The city of Milford successfully intervened as a defendant prior to the
administrative hearing in this case. On appeal to the trial court, the city of
Milford again intervened as a defendant.
2
The Commissioner of Energy and Environmental Protection acts on
behalf of the Department of Energy and Environmental Protection and
references in this opinion to the department include the commissioner or
his designee.
3
In hearing administrative appeals such as the present one, the Superior
Court acts as an appellate body. See General Statutes § 4-183 (j) (providing
standard of review for administrative appeals to Superior Court); see also
Connecticut Coalition Against Millstone v. Connecticut Siting Council,
286 Conn. 57, 85, 942 A.2d 345 (2008) (noting that Superior Court sits ‘‘in
an appellate capacity’’ when reviewing administrative appeals).
4
General Statutes § 4-182 (c) provides in relevant part: ‘‘No revocation,
suspension, annulment or withdrawal of any license is lawful unless, prior
to the institution of agency proceedings . . . the licensee was given an
opportunity to show compliance with all lawful requirements for the reten-
tion of the license. . . .’’
5
General Statutes § 22a-208a (e) provides in relevant part: ‘‘The commis-
sioner may hold a public hearing prior to approving or denying an application
if in his discretion the public interest will be best served thereby, and shall
hold a hearing upon receipt of a petition signed by at least twenty-five
persons. . . .’’
Section 22a-3a-5 (d) (1) of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘Unless otherwise provided by law, any Depart-
ment proceeding to revoke, suspend or modify a license shall commence
with issuance of notice to the licensee. Such notice shall . . . inform the
licensee that he may within thirty days of issuance of the notice file a request
for a hearing . . . .’’
6
As discussed in part IV of this opinion, the commissioner recused himself
from these proceedings and designated the deputy commissioner as the
final decision maker.
7
Section 6 of the general permit, which lists the general conditions of a
general permit registration, provides, in relevant part, that if information
provided on the application proves to be false or incomplete, the general
permit registration may be revoked.
8
When the department approved RCI’s original application for its general
permit registration, it was unaware that the signatures were not Barrett’s.
9
Section 22a-3a-5 (a) (2) of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘An application, including any attachments thereto,
shall be certified by the applicant and by the individual or individuals respon-
sible for actually preparing the application, each of whom shall state in
writing: ‘I have personally examined and am familiar with the information
submitted in this document and all attachments thereto, and I certify that
based on reasonable investigation, including my inquiry of those individuals
responsible for obtaining the information, the submitted information is true,
accurate and complete to the best of my knowledge and belief. I understand
that a false statement in the submitted information may be punishable as
a criminal offense, in accordance with section 22a-6 of the General Statutes,
pursuant to section 53a-157 of the General Statutes, and in accordance with
any other applicable statute.’ . . .’’
10
See General Statutes § 22a-6m (a).
11
The hearing officer concluded that RCI’s failure to submit timely and
accurate quarterly reports supported a finding of a pattern or practice of
noncompliance with the requirements of the general permit. On appeal, RCI
challenges this conclusion. The trial court, however, ‘‘decline[d] to resolve
this factual dispute in light of its conclusions on disclosure . . . .’’ Because
the trial court did not decide RCI’s claim regarding its failure to submit
timely and accurate quarterly reports, we decline to address it. See Smith
v. Redding, 177 Conn. App. 283, 294, A.3d (2017) (‘‘Connecticut
appellate courts will not address issues not decided by the trial court’’
[internal quotation marks omitted]). Furthermore, although RCI filed a
motion for articulation, it did not seek articulation on this point, nor did
RCI file a motion for reargument. See Pike v. Bugbee, 115 Conn. App. 820,
826, 974 A.2d 743 (‘‘It is . . . the responsibility of the appellant to move
for an articulation or rectification of the record . . . or to ask the trial
judge to rule on an overlooked matter. . . . In the absence of any such
attempts, we decline to review this issue.’’ [Internal quotation marks omit-
ted.]), cert. granted on other grounds, 293 Conn. 923, 980 A.2d 912 (2009)
(appeal withdrawn December 1, 2011). Accordingly, we decline to reach
this claim.
12
Although the hearing officer characterized these findings as ‘‘misrepre-
sentations,’’ she acknowledged that RCI’s ‘‘misrepresentations took many
forms, including omitted, inaccurate and false information . . . .’’
13
The trial court concluded that it need not reach the issue of whether
RCI’s submissions to the department amounted to ‘‘misrepresentations’’
on the ground that the plaintiff had violated ‘‘the statutes and applicable
regulations’’ that ‘‘require full disclosure . . . .’’
14
Section 22a-209-4 (h) (3) of the Regulations of Connecticut State Agen-
cies provides that ‘‘[a] permit to construct or operate may be revoked or
suspended in accordance with Section 4-182 of the General Statutes and
the Rules of Practice of the Department, as amended.’’
15
RCI argues that ‘‘RCI respectfully maintains that DEEP has not demon-
strated a ‘significant wilful noncompliance’ sufficient to revoke RCI’s general
permit and deny RCI’s individual permit pursuant to § 22a-6m.’’ This argu-
ment is without merit, as the statute requires only a finding of ‘‘a pattern
or practice of noncompliance which demonstrates the applicant’s unwilling-
ness or inability to achieve and maintain compliance . . . .’’ General Stat-
utes § 22a-6m (a).
16
RCI relies on Yaworski, Inc. v. Dept. of Environmental Protection,
Superior Court, judicial district of Hartford-New Britain at Hartford, Docket
No. CV-95-0550682 (June 21, 1996) (17 Conn. L. Rptr. 39), nonbinding author-
ity, to support his argument that the hearing officer improperly found a
pattern or practice of noncompliance.
In Yaworski, Inc., the trial court affirmed the department’s denial of a
permit on the basis of, in relevant part, a history of failure to comply with
state environmental laws and regulations in the operation of the landfill.
Id., 41. RCI argues that ‘‘[i]n contrast to the years of repeated violations
found in Yaworski, Inc., Mr. Curcio has never been charged for an environ-
mental crime and has only been involved in a civil enforcement matter
relating to environmental compliance one time prior to the current matter.’’
RCI’s reading of Yaworski, Inc., however, is misguided. Yaworski, Inc., was
an acknowledgement of the commissioner’s discretion to find a history of
noncompliance justifying the denial of a permit application. There, the trial
court stated that the commissioner has discretion to deny an application
for a permit, even where ‘‘the applicant has never been formally adjudicated
as a violator.’’ Yaworski, Inc. v. Dept. of Environmental Protection, supra,
17 Conn. L. Rptr. 41. Additionally, the court explicitly rejected an argument,
similar to that of RCI here, that the commissioner’s enforcement of the rule
allowing denial of a permit application on the basis of past noncompliance
was ‘‘arbitrary and discriminatory in view of the commissioner’s failure to
take similar action in other cases’’ on the ground that it amounted to a claim
for selective enforcement, which was not at issue in the case. Id., 42.
Furthermore, Curcio’s personal compliance history was not the sole basis
on which the department denied RCI’s application and revoked its permit
registration. Even if we assumed, arguendo, that Curcio’s personal compli-
ance history did not justify such actions by the department, denial and
revocation would still be within the department’s discretion on the basis
of the repeated omissions of material and relevant information made to
the department.
17
Although RCI frames this argument as being based on the trial court’s
application of an incorrect ‘‘standard of review,’’ the argument ultimately
relates to the fundamental fairness of the administrative proceedings before
the hearing officer, and we address that claim accordingly.
18
Section 22a-3a-6 (d) (1) of the Regulations of Connecticut State Agencies
provides: ‘‘The hearing officer shall conduct a fair and impartial proceeding,
assure that the relevant facts are fully elicited, adjudicate issues of law and
fact, and prevent delay and harassment.’’
19
Although RCI characterizes these rights as ‘‘due process rights’’ and
cites federal authority interpreting the due process clauses of the federal
constitution, we note that our Supreme Court has ruled: ‘‘The right to funda-
mental fairness in administrative proceedings encompasses a variety of
procedural protections . . . . In a number of administrative law cases
decided after Board of Regents v. Roth, [408 U.S. 564, 92 S. Ct. 2701, 33 L.
Ed. 2d 548 (1972)], we have characterized these procedural protections as
‘due process’ rights. . . . Although the ‘due process’ characterization, at
first blush, suggests a constitutional source, there is no discussion in these
cases of a property interest in terms of constitutional due process rights.
These decisions are, instead, based on a line of administrative law cases
and reflect the development, in Connecticut, of a common-law right to due
process in administrative hearings. Although the facts of the present case
do not require us to explore its boundaries, this common-law right is not
coextensive with constitutional due process. . . . Therefore, to eliminate
any further confusion, we will discontinue the use of the term ‘due process’
when describing the right to fundamental fairness in administrative proceed-
ings.’’ (Citations omitted.) Grimes v. Conservation Commission, 243 Conn.
266, 273 n.11, 703 A.2d 101 (1997).
20
Even assuming arguendo that the hearing officer’s statement was an
imprecise characterization of her review of the record, we cannot conclude
that this statement undermined the entire hearing process. RCI cannot show
that it suffered material prejudice as a result of this statement. See Murach
v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058(1985) (‘‘not all procedural irregularities require a reviewing court to set
aside an administrative decision; material prejudice to the complaining party
must be shown’’ [internal quotation marks omitted]). As noted, the hearing
officer detailed numerous findings of fact, supported by an abundance of
citations to the record. Accordingly, RCI has failed to demonstrate that it
suffered material prejudice.
21
To make out a claim for selective enforcement, a claimant must prove
that: ‘‘(1) the [claimant], compared with others similarly situated, was selec-
tively treated; and (2) . . . such selective treatment was based on impermis-
sible considerations such as race, religion, intent to inhibit or punish the
exercise of constitutional rights, or malicious or bath faith intent to injure
a person.’’ (Internal quotation marks omitted.) Cadlerock Properties Joint
Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn.
661, 671, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S. Ct. 1089, 148
L. Ed. 2d 963 (2001).
22
The hearing officer explained her ruling as follows:
‘‘Hearing Officer: But I’m not sure the department—it doesn’t sound as
if the department sits down and says, well, this one is just like the other
ones where we have seven violations. If they do an eighth, just like all the
others, they’ll have this punishment. It sounds [like] it’s very much a case-
by-case kind of determination depending on the factors and depending on
the nature of the problems. . . .
‘‘What I heard the witness say was, we look at circumstances, we look
at the nature of the offenses. So, you know, I could have—these could all
be other facilities that have had fewer violations or whatever, and I don’t
think that would make a difference in my decision; I know it wouldn’t.
Because—just because the department has done something different for
other facilities, they’re not telling me that they have a policy where I’m
going to be adding up what’s happening. Well, this facility had this problem,
so they got off and this one didn’t. And as you said, selective enforcement
is not an issue.’’
23
The UAPA requires administrative agencies to ‘‘[a]dopt as a regulation
rules of practice setting forth the nature and requirements of all formal and
informal procedures available provided such rules shall be in conformance
with the provisions of this chapter . . . .’’ General Statutes § 4-167 (a) (1).
24
Although Sage’s testimony referred to the ‘‘typical’’ situation in which
entities are able to correct insufficiencies on their reports after being con-
tacted by the department staff one time, she also testified that department
staff will ‘‘work with’’ entities who have failed to comply with reporting
requirements:
‘‘The Witness: Typically, we don’t usually have to go past one time. Very
rarely. Maybe two times to get reporting back. When it goes beyond that—
‘‘Hearing Officer: Yes.
‘‘The Witness: —it—I have to say, if we’re talking about Recycling, Inc.,
it’s one of the only ones that I’ve ever known to have to go back and forth
so much.
‘‘Hearing Officer: Really?
‘‘The Witness: Yes.
‘‘Hearing Officer: So, a more typical kind of problem is just something
that’s corrected the first time—
‘‘The Witness: Correct.
‘‘Hearing Officer: —or a second time? So, it’s unusual for a facility to be
more than one or two times—
‘‘The Witness: Correct.
‘‘Hearing Officer: —of having problems?
‘‘The Witness: If an entity doesn’t submit the reports at all or they haven’t
ever submitted the reports at all, they get a NOV, a notice of violation,
typically, to start.
‘‘Hearing Officer: And if your opinion, when a facility says, oh, it’s just
an oversight or, oh, we forgot, or, oh, you know, we’ll do better next time,
and they don’t, what’s your feeling on that?’’
‘‘The Witness: I mean, we work with them. We give them a chance to get
the reports to us. If they don’t then we proceed with enforcement.’’
25
At the outset, we note arguments made by the department and the town
that RCI has not properly preserved this issue for appellate review. In its
memorandum of decision, the trial court, before deciding the issue on its
merits, noted that RCI ‘‘did not brief this issue to the court.’’ RCI, instead,
raised this argument for the first time at oral argument before the trial court.
Accordingly, because we reject RCI’s argument that the commissioner’s
actions impacted these proceedings on the merits, we do not address these
waiver arguments. See Hadden v. Capitol Region Education Council, 164
Conn. App. 41, 43 n.4, 137 A.3d 775 (2016) (declining to address defendant’s
waiver argument because even if claim were preserved properly, controlling
precedent clearly disposed of it on merits); State v. Tarasiuk, 125 Conn.
App. 544, 547 n.5, 8 A.3d 550 (2010) (‘‘The state argues that this claim was
waived because the defendant approved of the instructions at trial. Because
we find that the charge as stated was proper, we decline to address the
issue of waiver.’’).
26
At the hearing, RCI offered into evidence a copy of the commissioner’s
public statement. Through counsel, RCI asserted: ‘‘I want it on the record
that there is good cause for Mr. Esty’s—Commissioner Esty to disqualify
himself in [the role of final decision maker].’’ Counsel for the department
responded that ‘‘the commissioner is not the final decision maker in this
case,’’ as Commissioner Esty had already decided to recuse himself.
27
We note that RCI fails to identify which department employees ‘‘felt
constrained’’ by the commissioner’s statement. We assume, for purposes
of this opinion, that RCI argues with respect to the hearing officer and
deputy commissioner.
28
At oral argument, RCI’s counsel stated: ‘‘Although I have no evidence of
this, there is some suggestion that that decision that the . . . commissioner
announced could have improperly tainted the judgment of the staff. I cannot
prove that. I have no way of proving it. But once that horse is out of the
barn, you have to ask yourself: was the reason that the staff recommended
denial, recommended revocation, was that impacted by [the commissioner’s
public statement]?’’ (Emphasis added.)
29
While RCI’s argument suggests that it also is challenging the commission-
er’s role in these proceedings as improper, it focuses on the effect of the
commissioner’s actions on other members of the department. We agree that
under the facts and circumstances of this case, the commissioner may have
acted inappropriately by issuing a public statement before the commence-
ment of these proceedings, but conclude that RCI cannot show that it
has suffered any adverse consequences as a result of the commissioner’s
involvement, or lack thereof, in these proceedings. The commissioner
recused himself from these proceedings before the hearing occurred. He
did not participate in the hearing, and his decision to recuse himself as final
decision maker was noted on the record. He did not act as the final decision
maker and, instead, designated a deputy commissioner to act as such. To
the extent that RCI challenges the commissioner’s involvement in this case
as improper, we conclude that RCI has not shown that it suffered any material
prejudice as the result of the commissioner’s actions, as any prejudice was
cured by the commissioner’s recusal. See Murach v. Planning & Zoning
Commission, supra, 196 Conn. 205. Accordingly, any argument challenging
the commissioner’s role in these proceedings is without merit.