Burton v. Dept. of Environmental Protection

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NANCY BURTON v. DEPARTMENT
OF ENVIRONMENTAL
PROTECTION
ET AL.
NANCY BURTON v. COMMISSIONER
OF ENVIRONMENTAL
PROTECTION
ET AL.
(SC 20466)
Robinson, C. J., and McDonald, Mullins, Kahn and Keller, Js.
Syllabus
The plaintiff brought an action under the Connecticut Environmental Protec-
tion Act of 1971 (CEPA) (§ 22a-14 et seq.) against the Commissioner of
Environmental Protection and D Co., the owner and operator of a nuclear
power plant in Waterford, seeking, inter alia, an injunction requiring
the power plant to convert to a closed-cycle cooling system. The plaintiff
previously had intervened in a proceeding before the Department of
Environmental Protection to challenge the department’s tentative deter-
mination to renew a permit authorizing D Co. to withdraw water from
Niantic Bay, cycle it through the power plant, and then discharge it into
the Long Island Sound. In her CEPA action, the plaintiff claimed, inter
alia, that the permit renewal proceeding was inadequate to protect the
rights recognized by CEPA and that the current operation of the power
plant would result in unreasonable pollution. The trial court rendered
judgment dismissing the plaintiff’s CEPA action for lack of standing.
The plaintiff appealed, and this court reversed the trial court’s judgment,
concluding that the plaintiff did have standing. Thereafter, the permit
renewal proceeding continued, and, in 2010, after the department con-
ducted an evidentiary hearing, the hearing officer issued a proposed final
decision, in which the hearing officer recommended that the department
issue a permit. The department subsequently issued the permit, and the
plaintiff filed an administrative appeal against the department and D
Co., claiming, inter alia, that the department failed to make a legally
valid best technology available determination. The administrative appeal
was then consolidated with the plaintiff’s CEPA action. Thereafter, the
commissioner and D Co. filed motions to dismiss the CEPA action on
the ground that it was moot, which the trial court granted. The plaintiff
appealed from the judgment of dismissal, and this court reversed that
judgment. On remand, the trial court conducted a hearing on the merits
of the consolidated actions and rendered judgments in favor of the
commissioner, the department and D Co. The plaintiff appealed, claim-
ing, inter alia, that the trial court incorrectly concluded that she had
failed to prove that the administrative proceeding was inadequate and
that the operation of the power plant would result in unreasonable
pollution. Held:
1. The plaintiff’s claim that the administrative proceeding was inadequate
to protect the rights recognized by CEPA was unavailing:
a. The plaintiff could not prevail on her claim that the administrative
proceeding was inadequate insofar as the hearing officer precluded cer-
tain claims on which the plaintiff sought to intervene: the hearing officer
did not abuse her discretion by precluding the plaintiff’s claim challenging
the permit renewal application on the ground that it failed to implement
the best technology available, as that claim was duplicative of several
other claims, and the hearing officer fully considered the plaintiff’s argu-
ments on this issue; moreover, the hearing officer did not abuse her
discretion by precluding three additional claims of the plaintiff on the
ground that they raised issues that were outside the department’s jurisdic-
tion, as these claims involved matters that were regulated exclusively
by the federal government, and two of those claims, which raised issues
concerning federal criminal law and employment practices, were not
related to environmental issues.
b. The plaintiff’s claim that the administrative proceeding was inadequate
because the hearing officer had excluded a 2007 document containing
a draft best technology available determination was unavailing: contrary
to the plaintiff’s claim, the department was previously directed by this
court in Fish Unlimited v. Northeast Utilities Service Co. (254 Conn.
1) to review all of its prior determinations regarding the cooling system,
and the plaintiff mischaracterized this court’s language in Fish Unlim-
ited, which was not an order but, rather, an explanation of what the
department would be required to do to renew the permit pursuant to
the applicable statutory scheme; moreover, the hearing officer’s decision
to exclude this document was not improper because there was nothing
in the document or testimony to support its credibility, unlike other
drafts of the permit, which were formally circulated by the department,
authenticated, signed by their drafters, and admitted at the hearing.
c. The plaintiff could not prevail on her claim challenging the neutrality
of the administrative proceeding on the ground that the hearing officer
was biased, colluded with D Co. to issue the permit without any consider-
ation of the closed-cycle cooling system, and prejudged the plaintiff’s
challenge to the permit’s best technology available determination; the
plaintiff’s claim was inadequately briefed, as her allegations regarding
bias were speculative and lacked citations to the administrative record,
and the plaintiff’s arguments concerning the allegations contained no
relevant legal authority and were cursorily scattered across different
headings and sections of her brief.
2. This court declined to review the plaintiff’s claim that she established that
unreasonable pollution would result from the power plant’s operation
as permitted and claim that the permit’s best technology available deter-
mination violated the Clean Water Act, as they were inadequately briefed:
the plaintiff provided only minimal citation to the trial or administrative
record in support of these claims, and she provided no citation to any
legal authority to define ‘‘unreasonable pollution’’ under CEPA, to define
‘‘best technology available’’ under the Clean Water Act, or to support
either claim; moreover, this court declined to address the plaintiff’s
claim that the trial court failed to follow this court’s prior remand order
when it conducted a single hearing because the claim was inadequately
briefed, as the plaintiff’s briefing of this claim was inconsistent and
nearly incomprehensible.
Argued September 10, 2020—officially released January 21, 2021*
Procedural History
Action, in the second case, for a temporary injunction
in connection with the intake and discharge of water
from the Long Island Sound and nearby bodies of water
by the defendant Dominion Nuclear Connecticut, Inc.,
the owner and operator of Millstone Nuclear Power
Station, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Tanzer, J., granted the defendants’ motions to
dismiss and rendered judgment thereon in their favor,
from which the plaintiff appealed; thereafter, this court
reversed the trial court’s judgment in the second case
and remanded that case for further proceedings; admin-
istrative appeal, in the first case, from the decision of
the named defendant approving the application of the
defendant Dominion Nuclear Connecticut, Inc., to
renew its water discharge permit, brought to the Supe-
rior Court in the judicial district of Danbury, where the
case was transferred to the judicial district of Hartford;
subsequently, the cases were consolidated; thereafter,
the court, Sheridan, J., granted the defendants’ motions
to dismiss the action in the second case and rendered
judgment thereon in their favor, from which the plaintiff
appealed; subsequently, this court reversed the trial
court’s judgment in the second case and remanded that
case for further proceedings; on remand, the cases were
tried to the court, Moukawsher, J.; judgments for the
defendants, from which the plaintiff appealed.
Affirmed.
Nancy Burton, self-represented, the appellant (plain-
tiff).
Matthew I. Levine, assistant attorney general, with
whom were Daniel M. Salton, assistant attorney gen-
eral, and, on the brief, William Tong, attorney general,
and Claire E. Kindall, solicitor general, for the appel-
lees (named defendants in the first and second cases).
Elizabeth C. Barton, with whom were Harold M.
Blinderman and, on the brief, Taylor C. Amato, for the
appellee (defendant Dominion Nuclear Connecticut,
Inc.).
Opinion
McDONALD, J. This case comes to us for the third
time following lengthy and highly contested litigation.
The plaintiff, Nancy Burton, brought an action under
the Connecticut Environmental Protection Act of 1971
(CEPA), General Statutes § 22a-14 et seq., against the
defendants, the Commissioner of Environmental Pro-
tection1 and Dominion Nuclear Connecticut, Inc., and
an administrative appeal under General Statutes § 4-
183 (a) against the defendants, the Department of Envi-
ronmental Protection2 and Dominion. The actions, now
consolidated, claim, in part, that the operation of the
Millstone Nuclear Power Station (plant), which is
owned and operated by Dominion, is causing unreason-
able pollution of the waters of the state in violation of
CEPA. Specifically, the plaintiff challenged the depart-
ment’s decision to issue a National Pollutant Discharge
Elimination System permit to Dominion to authorize
the intake and discharge of water by the plant, claiming
that the permit renewal proceeding was inadequate to
protect the rights recognized by CEPA. The trial court
previously dismissed the plaintiff’s CEPA action for lack
of standing, which this court reversed in Burton v.
Commissioner of Environmental Protection, 291
Conn. 789, 970 A.2d 640 (2009) (Burton I). Thereafter,
the trial court again dismissed the plaintiff’s CEPA
action, this time concluding that the action was moot
because the permit renewal proceeding had terminated.
This court reversed that decision in Burton v. Commis-
sioner of Environmental Protection, 323 Conn. 668, 150
A.3d 666 (2016) (Burton II). On remand from Burton
II, the trial court conducted a hearing on the merits of
the plaintiff’s CEPA claim and administrative appeal
and rendered judgments in favor of the defendants. The
plaintiff now appeals from those judgments, claiming,
among other things, that the trial court incorrectly con-
cluded that she failed to prove that the administrative
proceeding was inadequate and the operation of the
plant would result in unreasonable pollution.
Our decisions in Burton I and Burton II, as supple-
mented by the record, set forth the following relevant
facts and procedural history. The plant is a nuclear
power facility located in Waterford. The plant has a
once-through cooling system in which it draws water
from Niantic Bay, cycles it once through the plant, then
discharges the hot water into the Long Island Sound.
The plaintiff alleges that this process draws approxi-
mately two billion gallons of water per day. These activi-
ties are authorized by a permit that the department
issued to the owner of the plant—currently, Domin-
ion—pursuant to the federal Clean Water Act, 33 U.S.C.
§ 1251 et seq.3
In 1992, the department issued a five year permit
authorizing the plant’s water intakes and discharges.
After it expired, the plant continued to operate under
that permit’s terms while the department processed
Dominion’s timely permit renewal application pursuant
to General Statutes § 4-182 (b). In 2006, the department
issued a notice of tentative determination to renew the
permit, which triggered the public aspect of the permit
renewal proceeding. The plaintiff filed a timely notice
of intervention in the permit renewal proceeding pursu-
ant to General Statutes (Rev. to 2005) § 22a-19, as
amended by No. 06-196, § 256, of the 2006 Public Acts.4
She claimed, among other things, that the plant’s opera-
tion, as permitted, would result in unreasonable pollu-
tion because it would ‘‘entrain and impinge [marine
life], a natural resource of vital import[ance] to the
state’’; (internal quotation marks omitted) Burton v.
Commissioner of Environmental Protection, supra,
291 Conn. 794; and ‘‘continuously release vast quantities
of hot water [in]to the Long Island Sound . . . .’’ (Inter-
nal quotation marks omitted.) Id., 794–95. She claimed
that these activities would ‘‘continue the process by
which indigenous fish stocks have been devastated’’;
(internal quotation marks omitted) id., 794; and that
converting the plant’s current cooling system to a
closed-cycle cooling system ‘‘would virtually eliminate
waterborne adverse impacts to the marine environment
. . . .’’ (Internal quotation marks omitted.) Id., 795. The
hearing officer allowed the plaintiff to intervene on
certain claims but precluded numerous other claims
that the plaintiff raised concerning Dominion’s and the
department’s alleged collusion and illegal activities, as
well as the plant’s alleged radioactive pollution. At every
stage of the proceedings, the plaintiff has argued that
the plant should convert to a closed-cycle cooling sys-
tem. This cooling system would recirculate the water
used to cool the plant and result in significantly less
water intake and discharge. See, e.g., Entergy Corp. v.
Riverkeeper, Inc., 556 U.S. 208, 214 n.2, 129 S. Ct. 1498,
173 L. Ed. 2d 369 (2009).
In 2007, while the permit renewal proceeding was
ongoing, the plaintiff brought the first action against
the commissioner under CEPA, General Statutes § 22a-
16.5 She claimed, among other things, that (1) the permit
renewal proceeding was inadequate to protect the rights
recognized by CEPA, and (2) the current operation of
the plant would result in unreasonable pollution. She
sought, among other remedies, an injunction requiring
the plant to convert to a closed-cycle cooling system.
The trial court dismissed this action, holding that the
plaintiff lacked standing under § 22a-16 because her
claim arose from a permitting proceeding. The plaintiff
appealed, and this court reversed. We concluded that
the plaintiff had standing for her claim under § 22a-16
because her complaint ‘‘sets forth facts to support an
inference that unreasonable pollution, impairment or
destruction of a natural resource will probably result
from [the plant’s] operation.’’ Burton v. Commissioner
of Environmental Protection, supra, 291 Conn. 804. We
also reasoned that the ongoing permit renewal proceed-
ing did not preclude the plaintiff’s action when, as here,
the plaintiff claimed ‘‘that the permit renewal proceed-
ing is inadequate to protect the rights recognized by
[CEPA] . . . .’’ Id., 812. We remanded the case, direct-
ing the trial court to afford the plaintiff an opportunity
to establish that the permit renewal proceeding was
inadequate to protect the rights recognized by CEPA
and, if appropriate, to stay that administrative proceed-
ing. Id., 813.
Meanwhile, the permit renewal proceeding contin-
ued. In 2008, the department introduced a revised draft
permit, which was the product of negotiations between
Dominion and various environmental organizations that
had also intervened in the administrative proceeding.
The department conducted an evidentiary hearing on
the permit renewal over the course of eighteen days in
January and February, 2009. During the hearing, the
plaintiff offered the testimony of two fact witnesses,
including herself. She also extensively cross-examined
all of Dominion’s and the department’s witnesses. Addi-
tionally, the plaintiff offered approximately sixty-one
exhibits, one of which was initially admitted as a full
exhibit but was subsequently excluded.
In 2010, the hearing officer issued her proposed final
decision6 pursuant to General Statutes (Rev. to 2009)
§ 4-179 (c), in which she recommended that the depart-
ment issue the revised draft permit. The plaintiff filed
exceptions to the proposed final decision. The depart-
ment’s deputy commissioner, who was charged with
rendering a final decision on the contested permit
renewal, rejected the plaintiff’s arguments. Thereafter,
the deputy commissioner issued the permit.7
The 2010 permit is the center of this dispute. The
Clean Water Act required the department to determine,
in its best professional judgment, that the plant’s cool-
ing system, as permitted, reflects ‘‘the best technology
available [BTA] for minimizing adverse environmental
impact.’’ 33 U.S.C. § 1326 (b) (2018); see Natural
Resources Defense Council, Inc. v. United States Envi-
ronmental Protection Agency, 822 F.2d 104, 111 (D.C.
Cir. 1987) (‘‘[i]f no national standards have been promul-
gated . . . the permit writer is authorized to use, on a
case-by-case basis, [the permit writer’s] ‘best profes-
sional judgment’ to impose’’ applicable effluent limita-
tions that comply with Clean Water Act). The 2010 per-
mit evaluated the operation of the plant’s cooling
system and concluded that it did not reflect the BTA.
The permit recognized that requiring the plant to con-
vert to a closed-cycle cooling system, as sought by the
plaintiff, would reflect the BTA, but the permit declined
to require the plant to convert to that cooling system
because the department could not evaluate the feasibil-
ity of such a requirement. Instead, the permit imposed
a series of other technological requirements to mitigate
the current cooling system’s environmental impact. The
permit also required specific studies to ascertain the
feasibility of converting the plant to a closed-cycle cool-
ing system, the results of which may trigger a ‘‘subse-
quent BTA determination by the commissioner . . . .’’
In evaluating the permit’s compliance with CEPA and
the Clean Water Act, the hearing officer and the deputy
commissioner each concluded that the plant’s current
cooling system and the additional studies and technol-
ogy requirements together reflected the BTA. The dep-
uty commissioner noted that ‘‘the BTA in the present
case is not a single technology but, rather, a combina-
tion of various technologies, studies, and commit-
ments.’’
Following the department’s issuance of the 2010 per-
mit, the plaintiff timely filed the second action, an
administrative appeal from the department’s permit
renewal under § 4-183 (a).8 The plaintiff claimed, among
other things, that the final decision and permit failed
to make a legally valid BTA determination. This action
was consolidated with the plaintiff’s earlier CEPA
action.
Thereafter, the defendants moved to dismiss the
CEPA action, arguing that it was moot because the
permit renewal proceeding had terminated. The trial
court granted the defendants’ motions to dismiss, rea-
soning that, with the conclusion of the administrative
proceeding, the court lacked authority to grant equita-
ble relief consistent with this court’s remand in Burton
I. The plaintiff appealed, and this court reversed, con-
cluding that ‘‘the present action is not moot because a
controversy continues to exist between the parties’’;
Burton v. Commissioner of Environmental Protection,
supra, 323 Conn. 677; and ‘‘[t]he issuance of the renewal
permit did not resolve or terminate these controversies,
and they continue to exist.’’ Id., 678. We also recognized
that, if the plaintiff prevailed, the trial court’s authority
to issue an appropriate remedy would not be limited
to staying the administrative proceeding; rather, the
court would have the authority to adjudicate the impact
of the plant’s operation and issue appropriate equitable
relief. See id. Accordingly, we remanded the case; id.,
684; directing the trial court to determine ‘‘whether the
permit renewal proceeding was inadequate because the
department misinterpreted or misapplied the applicable
environmental law and, if the hearing is determined to
have been inadequate, [to] . . . order . . . appro-
priate declaratory or equitable relief.’’ Id., 679 n.7. We
further emphasized that ‘‘we express[ed] no opinion
. . . regarding’’ the appropriate procedures for litigat-
ing the CEPA action and administrative appeal, as con-
solidated. Id.
In 2018, following our remand in Burton II, the trial
court held a single, four day hearing on the merits of
the two consolidated actions. The trial court rendered
judgments for the defendants in both actions. It con-
cluded that the plaintiff did not establish that the plant’s
operation, as permitted, resulted in unreasonable pollu-
tion. It also concluded that the plaintiff failed to estab-
lish that the administrative proceeding contained proce-
dural irregularities or was otherwise inadequate to
protect the rights recognized by CEPA. The trial court
also disagreed with the plaintiff’s challenge to the per-
mit’s BTA determination, reasoning that the deputy
commissioner, in her final decision, ‘‘conclude[d] that
the technology proposed for [the plant] meets the Clean
Water Act requirement of [BTA].’’
The plaintiff filed a motion for mistrial, claiming,
among other things, that the remand in Burton II
required the trial court to hold a hearing first on the
adequacy of the administrative proceeding and then a
distinct hearing on the issue of unreasonable pollution.
The trial court denied the plaintiff’s motion. The plain-
tiff appealed from the judgments of the trial court to
the Appellate Court, and the appeal was transferred to
this court pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1. Additional relevant facts will be
set forth as necessary.
Although the plaintiff’s brief appears to assert six
arguments, they are not clearly articulated, and they
are more properly distilled into four claims. First, the
plaintiff argues that the trial court incorrectly con-
cluded that she failed to establish that the administra-
tive proceeding was inadequate to protect the rights
recognized by CEPA. Second, the plaintiff argues that
the trial court improperly held that she failed to estab-
lish that unreasonable pollution would result from the
plant’s operation. Third, the plaintiff argues that the
trial court incorrectly concluded that the department’s
BTA determination did not violate the Clean Water Act.
Finally, the plaintiff argues that the trial court violated
this court’s remand order in Burton II by failing to
follow the prescribed two step proceeding. The defen-
dants argue that the plaintiff has inadequately briefed
all of her claims. They also argue, in the alternative,
that the trial court’s procedures and substantive hold-
ings were proper. We agree with the defendants that
the majority of the plaintiff’s claims are inadequately
briefed, and we conclude that those claims that are
adequately briefed lack merit.9
I
We begin with the plaintiff’s claim that the administra-
tive proceeding was inadequate to protect the rights
recognized by CEPA.10 Although not clearly explained
in her brief, the plaintiff appears to raise three argu-
ments in support of her claim: the plaintiff challenges
(1) the hearing officer’s decision to preclude certain
claims on which the plaintiff sought to intervene, (2)
the hearing officer’s decision to exclude certain evi-
dence that the plaintiff sought to admit, and (3) the
neutrality of the proceeding. We address each argument
in turn.
A
The plaintiff first argues that the administrative pro-
ceeding was inadequate because the hearing officer
precluded certain claims on which she sought to inter-
vene. Specifically, the plaintiff asserts that paragraphs
5B, 5F, 5J and 5K of her notice of intervention were
improperly precluded. Because the plaintiff does not
reference the hearing officer’s preclusion of any of her
other claims, we confine our analysis to those claims
enumerated in the plaintiff’s brief.
Paragraph 5B alleged that granting the permit
renewal application would result in the release of toxic
and radioactive substances into the Long Island Sound.
Paragraph 5F alleged that ‘‘[t]he application violates
the federal Clean Water Act in that it fails to implement
the [BTA] to avoid unnecessary adverse impacts and
in other respects.’’ Paragraph 5J baldly alleged that
Dominion had pleaded ‘‘guilty to committing federal
felonies’’ due to falsifying environmental monitoring
reports, releasing carcinogens, and violating permit
conditions. Paragraph 5K alleged, also with little con-
text, that Dominion had a ‘‘track record of firing whis-
tleblowers in retaliation for their truth telling and expo-
sure’’ of information about the plant’s operation. The
hearing officer precluded these four claims, among oth-
ers, because they contained ‘‘allegations that are either
not relevant to this proceeding, redundant, or have been
previously resolved,’’ and because they raised issues
that were ‘‘beyond the scope of the application before
[the hearing officer] or are otherwise not within the
jurisdiction of [the department].’’ For its part, the trial
court noted that the ‘‘hearing officer heard, in one fash-
ion or another, all of the substantive issues [the plaintiff]
complains about, including the issue of the closed-cycle
[cooling] system.’’ The plaintiff argues that preclusion
of these claims contributed to the inadequacy of the
administrative proceeding because she was unable to
raise issues relevant to the contested permit renewal
decision. The defendants argue that the hearing officer
correctly concluded that the department lacked juris-
diction over the precluded claims.
We begin with the applicable legal principles govern-
ing a party’s intervention in an administrative proceed-
ing. Section 22a-19 (a) provides in relevant part: ‘‘In
any administrative . . . proceeding . . . any person
. . . may intervene as a party on the filing of a verified
pleading asserting that the proceeding . . . involves
conduct which has, or which is reasonably likely to
have, the effect of unreasonably polluting, impairing or
destroying the public trust in the air, water or other
natural resources of the state.’’ In addition, the depart-
ment’s rules of practice provide that the hearing officer
in a contested case has discretion to ‘‘restrict the partici-
pation in the proceeding of [an intervenor], although
only to the extent necessary to promote justice and the
orderly conduct of the proceeding.’’ Regs., Conn. State
Agencies § 22a-3a-6 (k) (7). We therefore consider
whether the hearing officer abused her discretion by
precluding the plaintiff’s claims. See, e.g., Board of
Selectmen v. Freedom of Information Commission, 294
Conn. 438, 446, 984 A.2d 748 (2010) (‘‘[o]ur ultimate
duty is to determine, in view of all of the evidence,
whether the agency, in issuing its order, acted . . .
in abuse of its discretion’’ (internal quotation marks
omitted)).
We conclude that the hearing officer did not abuse
her discretion by precluding these four claims. First,
paragraph 5F, which challenged the permit renewal
application because it failed to implement the BTA, was
duplicative of several of the claims on which the hearing
officer permitted the plaintiff to intervene. In particular,
the hearing officer considered the plaintiff’s challenge
regarding the proper implementation of the BTA under
paragraph 6, which asserted the diminished environ-
mental impact of a closed-cycle cooling system. The
hearing officer then issued a detailed ruling that the
plaintiff had failed to establish a prima facie showing
of unreasonable pollution. Because paragraph 5F was
duplicative of several other claims and the hearing offi-
cer fully considered the plaintiff’s arguments on this
point, the hearing officer did not abuse her discretion
by precluding it.
In addition, we conclude that it was not an abuse of
discretion for the hearing officer to preclude paragraphs
5B, 5J and 5K on the ground that they raised issues that
were outside the department’s jurisdiction. We have
repeatedly explained that ‘‘[CEPA] grants standing to
intervenors to raise only those environmental concerns
that are within the jurisdiction of the particular adminis-
trative agency conducting the proceeding [in] which
the party seeks to intervene.’’ Nizzardo v. State Traffic
Commission, 259 Conn. 131, 148, 788 A.2d 1158 (2002).
In 2006, when the plaintiff filed her notice of interven-
tion, the department had jurisdiction over ‘‘all matters
relating to the preservation and protection of the air,
water and other natural resources of the state.’’ General
Statutes (Rev. to 2005) § 22a-2 (a).11 Because radiologi-
cal discharge by nuclear power plants is regulated
exclusively by the federal government, the hearing offi-
cer’s decision to preclude paragraph 5B for lack of
jurisdiction was not an abuse of discretion. See Burton
v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542,
552, 23 A.3d 1176 (2011) (holding, in distinct action
brought by plaintiff against Dominion, that federal law
preempted regulation of radiological safety at nuclear
power plants); see also Pacific Gas & Electric Co. v.
State Energy Resources Conservation & Development
Commission, 461 U.S. 190, 212, 103 S. Ct. 1713, 75 L. Ed.
2d 752 (1983) (‘‘the [f]ederal [g]overnment maintains
complete control of the safety and ‘nuclear’ aspects of
energy generation’’). Regarding paragraphs 5J and 5K,
federal criminal law and employment practices are like-
wise outside the department’s jurisdiction.
Moreover, under CEPA, intervention in administra-
tive proceedings is limited to claims asserting certain
environmental issues. See Pond View, LLC v. Plan-
ning & Zoning Commission, 288 Conn. 143, 159, 953
A.2d 1 (2008) (‘‘it is axiomatic that [§ 22a-19] encom-
passes substantive environmental issues only’’). The
plaintiff does not connect her allegations in paragraphs
5J and 5K to any such environmental issue. Accordingly,
it was not an abuse of discretion for the hearing officer
to preclude these claims.
B
The plaintiff next argues that the administrative pro-
ceeding was inadequate because the hearing officer
excluded certain evidence that the plaintiff sought to
introduce. Specifically, the plaintiff identifies a docu-
ment that she alleges is a draft BTA determination pre-
pared by department staff, dated September 10, 2007.12
This document asserts that the closed-cycle cooling
system satisfies the BTA requirement in the Clean
Water Act.
The following additional facts are relevant to our
analysis. At the administrative hearing, the plaintiff
sought to introduce the September 10, 2007 document
during her cross-examination of a Dominion witness,
but the hearing officer declined to enter it as a full
exhibit. The hearing officer noted that it was not authen-
ticated, and, therefore, it was not credible. She observed
that it was not typed on department letterhead; nor was
it signed to otherwise indicate its source. The plaintiff
asserted that the unidentified person who gave her the
document told her that it was prepared by department
staff. The hearing officer noted that, without testimony
by the person who gave the plaintiff the document,
her assertion was hearsay. Finally, the hearing officer
concluded that there was no foundation to introduce
the document as an exhibit because there was nothing
to link the document to the witness the plaintiff was
cross-examining.13
On appeal, the plaintiff appears to argue that the
exclusion of this document rendered the administrative
proceeding inadequate for two reasons. First, the plain-
tiff challenges the hearing officer’s evidentiary ruling
that the document lacked credibility. Second, the plain-
tiff argues that the exclusion of this document rendered
the administrative proceeding inadequate because the
department was previously ordered by this court to
‘‘review all of [the department’s] prior determinations
that [the plant’s] cooling system is consistent with the
provisions of the . . . Clean Water Act, which requires
that the cooling water intake structure represent [the
BTA] for minimizing environmental impacts.’’ (Internal
quotation marks omitted.) Fish Unlimited v. Northeast
Utilities Service Co., 254 Conn. 1, 14, 756 A.2d 262(2000), overruled in part on other grounds by Waterbury
v. Washington, 260 Conn. 506, 800 A.2d 1102 (2002). In
Fish Unlimited, which was decided before the permit
renewal proceeding began, several environmental orga-
nizations sought an injunction against the prior owners
and operators of the plant requiring it to convert to a
closed-cycle cooling system. See id., 3 and nn.1 and 2;
see also id., 9. In upholding the trial court’s dismissal
of the complaint, this court reasoned that the environ-
mental organizations were first required to exhaust the
administrative remedies available through the permit
renewal proceeding. Id., 19–21. Although the holding
in Fish Unlimited regarding the applicability of the
exhaustion doctrine has since been overturned; see
Waterbury v. Washington, supra, 545; the plaintiff
argues that this court ordered the department to review
prior BTA determinations in the permit renewal pro-
ceeding, which it failed to do by excluding the Septem-
ber 10, 2007 draft BTA determination.
The defendants contend that exclusion of this docu-
ment was not an abuse of discretion in light of the
hearing officer’s role to evaluate the reliability of evi-
dence. Dominion also argues that the plaintiff has not
shown how the hearing officer’s evidentiary ruling
affected the outcome of the permit renewal proceeding
in light of the expansive administrative record. For their
part, the department and the commissioner argue that
the passages the plaintiff cites from Fish Unlimited
‘‘were not intended to instruct the department on the
substantive requirements of a hearing.’’
Resolution of this claim is controlled by well settled
principles. Under the department’s rule governing con-
tested cases, a hearing officer in a contested case has
the discretionary power to ‘‘[a]dmit or exclude evidence
and rule on objections to evidence . . . .’’ Regs., Conn.
State Agencies § 22a-3a-6 (d) (2) (E). In addition, ‘‘[t]he
hearing officer shall not admit any evidence which is
irrelevant, immaterial, unduly repetitious, untrustwor-
thy, or unreliable.’’14 (Emphasis added.) Id., § 22a-3a-
6 (s) (1). Moreover, ‘‘administrative tribunals are not
strictly bound by the rules of evidence and . . . they
may consider evidence which would normally be incom-
petent in a judicial proceeding, as long as the evidence
is reliable and probative.’’ Tomlin v. Personnel Appeal
Board, 177 Conn. 344, 348, 416 A.2d 1205 (1979); see
also, e.g., Connecticut Fund for the Environment, Inc.
v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984)
(‘‘Although proceedings before administrative agencies
. . . are informal and are conducted without regard
to the strict rules of evidence, the hearings must be
conducted so as not to violate the fundamental rules
of natural justice. . . . Due process of law requires not
only that there be due notice of the hearing but that at
the hearing the parties involved have a right to produce
relevant evidence, and an opportunity to know the facts
on which the agency is asked to act, to cross-examine
witnesses and to offer rebuttal evidence.’’ (Citation
omitted.)). ‘‘It is within the province of the hearing
officer to determine the credibility of evidence. . . .
The plaintiff bears the burden of demonstrating that a
hearing officer’s evidentiary ruling is arbitrary, illegal
or an abuse of discretion.’’ (Citation omitted; internal
quotation marks omitted.) Roy v. Commissioner of
Motor Vehicles, 67 Conn. App. 394, 397, 786 A.2d
1279 (2001).
We disagree with both of the plaintiff’s arguments
regarding the September 10, 2007 document. First, the
plaintiff mischaracterizes this court’s language from
Fish Unlimited. Our statement that ‘‘the department
must review all of its prior determinations [regarding
the cooling system]’’; Fish Unlimited v. Northeast Utili-
ties Service Co., supra, 254 Conn. 14; was not an order;
rather, it was an explanation of what the department
would be required to do to renew the permit pursuant
to the applicable statutory scheme. We described this
process to explain that, contrary to the arguments
raised by the plaintiff environmental organizations, the
permit renewal proceeding would not be futile, and
the department would have the authority to grant the
requested relief. See id., 14–15. Contrary to the plain-
tiff’s argument, excluding this document did not
‘‘def[y]’’ any ‘‘order’’ from this court.
Second, the hearing officer’s decision to exclude this
document was not improper because there was nothing
in the document or testimony to support its credibility.
This contrasts with the other drafts of the permit, which
were formally circulated by the department, authenti-
cated, signed by their drafters, and admitted at the
hearing. The department’s regulations require a hearing
officer to exclude evidence that is ‘‘untrustworthy, or
unreliable’’; Regs., Conn. State Agencies § 22a-3a-6 (s)
(1); and the plaintiff has not explained how the hearing
officer’s evidentiary ruling regarding the document’s
credibility was improper, particularly in light of the
document’s low probative value.
C
Finally, with respect to the adequacy of the proceed-
ing, the plaintiff challenges the neutrality of the adminis-
trative proceeding. Specifically, she argues that the
hearing officer was biased, colluded with Dominion to
issue the permit without any consideration of the
closed-cycle cooling system, and prejudged the plain-
tiff’s challenge to the permit’s BTA determination. The
defendants argue that the plaintiff’s claim is inade-
quately briefed because it is conclusory, speculative,
and without citations to the administrative record. They
also argue, in the alternative, that the hearing officer’s
conduct was proper and that, even if there were any
procedural irregularities, the plaintiff failed to show
how she was harmed by them.
We agree with the defendants that this claim is inade-
quately briefed. The plaintiff’s allegations of the hearing
officer’s bias are speculative and contain no citations
to the record.15 See, e.g., Connecticut Coalition Against
Millstone v. Connecticut Siting Council, 286 Conn. 57,
87, 942 A.2d 345 (2008) (‘‘mere conclusory assertions
regarding a claim, with no mention of relevant authority
and minimal or no citations from the record, [are inade-
quately briefed]’’). Additionally, the plaintiff’s argument
contains no legal authority discussing the circum-
stances under which an agency’s action may be invali-
dated for bias, collusion, or prejudgment. Finally, the
plaintiff’s argument on this claim is cursorily scattered
across different headings and sections of her brief, mak-
ing it short and difficult to comprehend. As such, we
conclude that it is inadequately briefed.
II
The plaintiff raises three additional claims on appeal.
First, she claims that she established that unreasonable
pollution would result from the plant’s operation as
permitted. Second, she claims that the permit’s BTA
determination violates the Clean Water Act. Specifi-
cally, the plaintiff argues that the permit functionally
makes no valid BTA determination at all because it
determines that the current cooling system does not
meet the BTA requirement, yet it declines to require
the plant to convert to the superior cooling system.
Third, the plaintiff claims that the trial court failed to
follow this court’s remand order in Burton II when it
conducted a single hearing on the merits of her actions.
The defendants contend that each of these claims is
inadequately briefed. We agree with the defendants.
‘‘We repeatedly have stated that [w]e are not required
to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief
the issue properly. . . . [When] a claim is asserted in
the statement of issues but thereafter receives only
cursory attention in the brief without substantive dis-
cussion or citation of authorities, it is deemed to be
abandoned.’’ (Internal quotation marks omitted.) Con-
necticut Light & Power Co. v. Dept. of Public Utility
Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). For
a reviewing court to ‘‘judiciously and efficiently . . .
consider claims of error raised on appeal . . . the par-
ties must clearly and fully set forth their arguments in
their briefs.’’ (Internal quotation marks omitted.) State
v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016). In
addition, briefing is inadequate when it is ‘‘not only
short, but confusing, repetitive, and disorganized.’’
Id., 726.
We are mindful that ‘‘[i]t is the established policy of
the Connecticut courts to be solicitous of [self-repre-
sented] litigants and when it does not interfere with the
rights of other parties to construe the rules of practice
liberally in favor of the [self-represented] party. . . .
Nonetheless, [a]lthough we allow [self-represented] liti-
gants some latitude, the right of self-representation pro-
vides no attendant license not to comply with relevant
rules of procedural and substantive law.’’ (Citation
omitted; internal quotation marks omitted.) New Haven
v. Bonner, 272 Conn. 489, 497–98, 863 A.2d 680 (2005).
Moreover, ‘‘[a]n appellant cannot . . . rely on the
appellee to decipher the issues and explain them to
the [reviewing court].’’ State v. Buhl, supra, 321 Conn.
728–29; see, e.g., Traylor v. State, 332 Conn. 789, 806–
807, 213 A.3d 467 (2019) (‘‘[w]e acknowledge that the
plaintiff is a self-represented party and that it is the
established policy of the Connecticut courts to be solici-
tous of [self-represented] litigants . . . [but] a litigant
on appeal [is not] relieved of the obligation to suffi-
ciently articulate a claim so that it is recognizable to a
reviewing court’’ (citations omitted; internal quotation
marks omitted)).
We conclude that the plaintiff’s claims that she estab-
lished that unreasonable pollution would result from
the plant’s operation and that the permit’s BTA determi-
nation violates the Clean Water Act are inadequately
briefed. The plaintiff provides only minimal citation to
the trial court record or administrative record in sup-
port of those claims.16 She provides no citation to any
legal authority to define ‘‘unreasonable pollution’’ under
CEPA, define ‘‘best technology available’’ under the
Clean Water Act, or support either claim. She also pro-
vides no meaningful analysis for either claim. See, e.g.,
MacDermid, Inc. v. Leonetti, 328 Conn. 726, 748, 183
A.3d 611 (2018) (‘‘[a]nalysis, rather than mere abstract
assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly’’ (internal
quotation marks omitted)). Accordingly, we decline to
review these claims.
In addition, we conclude that the plaintiff’s claim that
the trial court failed to follow this court’s remand order
in Burton II when it conducted a single hearing is inade-
quately briefed. As an initial matter, the plaintiff’s brief-
ing is inconsistent: she asserts that the trial court should
have conducted a two step proceeding, but she differs
in what she argues the two steps should be. At one
point in her brief, the plaintiff argues that the two steps
should have been (1) a hearing on the merits of her
claims, and then (2) a hearing on the appropriate relief.
Later in her brief, the plaintiff argues that the two steps
should have been (1) a hearing on the merits on the
inadequacy of the administrative proceeding issue, and
then (2) a hearing on the merits on the unreasonable
pollution issue. Given this inconsistency, the plaintiff’s
argument on this claim is nearly incomprehensible. See,
e.g., State v. Buhl, supra, 321 Conn. 726 (declining to
review claim that was ‘‘not only short, but confusing,
repetitive, and disorganized’’); see also, e.g., Birch v.
Polaris Industries, Inc., 812 F.3d 1238, 1249 (10th Cir.
2015) (declining to review claim that was ‘‘vague, con-
fusing, [and] conclusory’’). Additionally, the plaintiff
devotes less than one page of her main brief to this
argument. ‘‘Although the number of pages devoted to
an argument in a brief is not necessarily determinative,
relative sparsity weighs in favor of concluding that the
argument has been inadequately briefed.’’ State v. Buhl,
supra, 726. Accordingly, we consider this claim to be
inadequately briefed and decline to address it.17
The judgments are affirmed.
In this opinion the other justices concurred.
* January 21, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The Commissioner of Environmental Protection is now called the Com-
missioner of Energy and Environmental Protection. See footnote 2 of this
opinion.
2
In 2011, the Department of Energy and Environmental Protection was
established as the successor department to the Department of Environmen-
tal Protection and the Department of Public Utility Control, and the Commis-
sioner of Energy and Environmental Protection became the head of the
successor department. See Public Acts 2011, No. 11-80, § 1, codified at
General Statutes (Supp. 2012) § 22a-2d.
3
The department originally issued the permit in 1992 to Dominion’s prede-
cessor, Northeast Nuclear Energy Company. When Dominion purchased the
plant from Northeast in 2001, the department approved the transfer of
Northeast’s permit to Dominion and the substitution of Dominion for North-
east in the permit renewal application.
4
General Statutes (Rev. to 2005) § 22a-19, as amended by No. 06-196,
§ 256, of the 2006 Public Acts (P.A. 06-196), provides in relevant part: ‘‘(a)
In any administrative, licensing or other proceeding . . . any person . . .
may intervene as a party on the filing of a verified pleading asserting that
the proceeding . . . involves conduct which has, or which is reasonably
likely to have, the effect of unreasonably polluting, impairing or destroying
the public trust in the air, water or other natural resources of the state. . . .’’
Hereinafter, all references to § 22a-19 in this opinion are to the 2005
revision of the statute, as amended by P.A. 06-196, § 256.
5
General Statutes § 22a-16 provides in relevant part: ‘‘[A]ny person . . .
may maintain an action in the superior court . . . for declaratory and equita-
ble relief against the state, any political subdivision thereof, any instrumen-
tality or agency of the state or of a political subdivision thereof . . . for
the protection of the public trust in the air, water and other natural resources
of the state from unreasonable pollution, impairment or destruction . . . .’’
6
Under General Statutes (Rev. to 2009) § 4-179 (b), a hearing officer makes
a proposed final decision in a contested case, which ‘‘shall be in writing
and contain a statement of the reasons for the decision and a finding of
facts and conclusion of law on each issue of fact or law necessary to
the decision.’’ Following the hearing officer’s proposed final decision, the
department’s deputy commissioner issued her final decision under General
Statutes (Rev. to 2009) § 4-180, which affirmed the hearing officer’s proposed
final decision, with minor modifications, and conducted an independent
evaluation as to whether the permit complied with, among other statutes
and regulations, CEPA and the Clean Water Act.
7
This five year permit expired in 2015. Dominion filed a timely application
for renewal, and the plant continues to operate under this permit pursuant
to § 4-182 (b).
8
General Statutes § 4-183 (a) provides in relevant part: ‘‘A person who
has exhausted all administrative remedies available within the agency and
who is aggrieved by a final decision may appeal to the Superior Court as
provided in this section. . . .’’
9
We note that the plaintiff raises numerous arguments throughout her
brief via superficial and conclusory statements that do not appear to fit into
any of her four main claims. To the extent they assert claims for relief, we
conclude that they are inadequately briefed. These arguments include: the
legality of the department’s emergency authorizations regarding the plant’s
1992 permit; the question of whether the department applied cost-benefit
analysis in renewing the permit; the propriety of the other intervenors’
negotiations and stipulation; the propriety of the trial court’s reviewing
evidence that was excluded from the administrative proceeding; and the
veracity of the trial court’s statements about the context of the Clean
Water Act.
10
We note that the plaintiff mischaracterizes the trial court’s decision on
this issue. She asserts that ‘‘[t]he trial court never ruled on the specific
question of whether [the administrative] proceedings were inadequate pursu-
ant to [General Statutes] § 22a-20 . . . .’’ This is not true. Under a heading
dedicated to the inadequacy of the proceeding, the trial court concluded that
the administrative proceeding ‘‘suffered from no fundamental procedural
unfairness.’’
11
The department’s jurisdiction was modified in 2011 by No. 11-80, §§ 1
and 55, of the 2011 Public Acts. See footnote 2 of this opinion.
12
The plaintiff also asserts that ‘‘the hearing officer precluded the plaintiff
from introducing into evidence the most recently expired 1992 permit
. . . .’’ (Footnote omitted.) To the extent that the plaintiff argues that this
exclusion contributed to the inadequacy of the proceeding, this argument
is inadequately briefed because the plaintiff provides no analysis regarding
why exclusion of this evidence was improper. ‘‘We consistently have held
that [a]nalysis, rather than mere abstract assertion, is required in order to
avoid abandoning an issue by failure to brief the issue properly.’’ (Internal
quotation marks omitted.) Knapp v. Knapp, 270 Conn. 815, 823 n.8, 856
A.2d 358 (2004).
Likewise, at oral argument, the plaintiff referenced testimony from litiga-
tion in another case by an expert, Mark Gibson, which was not admitted
as evidence in the present case. Because this report was not raised prior
to oral argument, we decline to consider this newly raised argument. ‘‘[I]t is
well settled that a claim cannot be raised for the first time at oral argument.’’
Hornung v. Hornung, 323 Conn. 144, 160 n.20, 146 A.3d 912 (2016).
13
The trial court did not specifically address the issue of whether exclusion
of this document was proper.
14
This subdivision of the regulation supplements General Statutes § 4-
178, under which ‘‘the agency shall, as a matter of policy, provide for the
exclusion of irrelevant, immaterial or unduly repetitious evidence . . . .’’
15
The only specific evidence that the plaintiff supplies to support her
allegations of collusion between the department and Dominion is testimony
by a Dominion witness regarding the stipulation negotiations between the
department, Dominion, and the other environmental intervenors. In the
administrative proceeding, the witness testified that a ‘‘ground rule’’ of the
stipulation negotiations was that the parties would not discuss the issue of
converting the plant to a closed-cycle cooling system. In objecting to the
plaintiff’s subsequent line of questioning, Dominion’s attorney restated the
witness’ testimony as indicating that ‘‘it was clear that all parties were in
agreement that [the closed-cycle cooling system] was not on the table.’’ In
this appeal, the plaintiff asserts that the witness’ testimony that the closed-
cycle cooling system was ‘‘off the table’’ supports her allegations of bias,
collusion, and prejudgment by the hearing officer. With no analysis or other
evidence to support them, these allegations are speculative and the claims
on which they are based are inadequately briefed. See, e.g., Knapp v. Knapp,
270 Conn. 815, 823 n.8, 856 A.2d 358 (2004) (‘‘[when] the parties cite no law
and provide no analysis of their claims, we do not review such claims’’
(internal quotation marks omitted)). Moreover, the witness’ testimony refer-
enced the stipulation negotiations, not the hearing. The hearing officer and
the deputy commissioner were required to evaluate the stipulated revised
draft permit to ensure that it complied with applicable state and federal
law, which they did in their proposed final decision and final decision,
respectively. The plaintiff presents no evidence that these decisions were
prejudged as a result of the stipulation negotiations.
16
For the first time, in her reply brief, the plaintiff quotes, without any
analysis, a memorandum prepared by an individual who did not testify in
the trial court and whose credibility as an expert witness could not be
judged. The short memorandum, circulated internally within the department,
summarizes a report evaluating the impact of the plant’s operation on fish
population and entrainment during the year 1996. It is well settled that ‘‘new
arguments are not to be raised in a reply brief because [the opposing party
is] preclude[d] . . . from responding.’’ State v. Williams, 146 Conn. App.
114, 137 n.25, 75 A.3d 668 (2013), aff’d, 317 Conn. 691, 119 A.3d 1194 (2015);
see, e.g., Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 91 n.9, 881 A.2d
139 (2005) (‘‘[i]t is a well established principle that arguments cannot be
raised for the first time in a reply brief’’ (internal quotation marks omitted)).
The plaintiff’s reply brief cursorily states that this memorandum is ‘‘particu-
larly damning’’ but does not analyze its relevance to her proposition that a
closed-cycle cooling system would reduce the plant’s environmental impact.
Accordingly, we decline to consider the memorandum or any related argu-
ment that the plaintiff raises.
17
We also note that the trial court repeatedly clarified the procedures it
would employ in conducting the hearing, and the plaintiff indicated her
understanding of and assent to those procedures.