Burton v. Commissioner of Environmental Protection

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NANCY BURTON v. COMMISSIONER OF
ENVIRONMENTAL PROTECTION ET AL.
(SC 19664)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.*
Argued October 18—officially released December 13, 2016
Nancy Burton, self-represented, the appellant
(plaintiff).
Matthew I. Levine, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Michael W. Lynch, assistant attorney general,
for the appellee (named defendant).
Elizabeth C. Barton, with whom were Harold M.
Blinderman and, on the brief, Michael L. Miller, for
the appellee (defendant Dominion Nuclear Connecti-
cut, Inc.).
Opinion
ROGERS, C. J. The issue that we must resolve in this
appeal is whether the trial court properly dismissed
the complaint claiming a violation of the Connecticut
Environmental Protection Act of 1971 (act), General
Statutes § 22a-14 et seq., on the ground of mootness.
The plaintiff, Nancy Burton, brought this action against
the defendants, the Commissioner of Environmental
Protection (commissioner) and Dominion Nuclear Con-
necticut, Inc. (Dominion), claiming that the operation
of the Millstone Nuclear Power Station (Millstone),
which is owned and operated by Dominion, is causing
unreasonable pollution of the waters of the state in
violation of the act. Thereafter, the defendants filed
motions to dismiss the complaint on the ground that
the plaintiff lacked standing, which the trial court
granted. The plaintiff appealed from the judgment of
dismissal and, in Burton v. Commissioner of Environ-
mental Protection, 291 Conn. 789, 792–93, 970 A.2d 640
(2009) (Burton I), this court reversed the judgment of
dismissal. We concluded that the plaintiff had standing
to bring her action under General Statutes § 22a-161
because she had alleged facts that would support infer-
ences that: (1) unreasonable pollution, impairment or
destruction of a natural resource would probably result
from Millstone’s operations; id., 804; and (2) pursuant to
General Statutes § 22a-20,2 the pending administrative
permit renewal proceeding for Millstone’s operation
was inadequate to protect the rights recognized by the
act because the hearing officer and the Department of
Environmental Protection3 (department) had not con-
ducted the proceeding fairly and impartially. Id., 812.
As the remedy, we ordered that the trial court conduct
a hearing to determine whether the pending administra-
tive proceeding was inadequate to protect the rights
recognized by the act. Our decision in Burton I was
officially released on June 2, 2009. On September 1,
2010, the administrative proceeding terminated when
the commissioner issued a renewal permit for Millstone.
Thereafter, the defendants filed separate motions to
dismiss the plaintiff’s action, contending that, because
no hearing on the adequacy of the permit renewal pro-
ceeding had been conducted pursuant to this court’s
order in Burton I, and because the permit renewal pro-
ceeding had terminated, the plaintiff’s action was moot.
The trial court granted the motions to dismiss, and
this appeal followed.4 We reverse the judgment of the
trial court.
The following undisputed facts are set forth in our
opinion in Burton I. ‘‘Millstone is an electric generating
facility that is located in Waterford and powered by
two nuclear power generating units. During operation,
Millstone withdraws water from Niantic Bay to cool
the generating units and then discharges the water into
the Long Island Sound. These activities are authorized
by a permit (discharge permit) issued by the [depart-
ment] pursuant to 33 U.S.C. § 1342 and General Statutes
[Rev. to 2007] § 22a-430. The department originally
issued the discharge permit in 1992 to Dominion’s pre-
decessor, Northeast Nuclear Energy Company (North-
east). On June 13, 1997, Northeast submitted to the
department an application for renewal of the discharge
permit. After Dominion purchased Millstone on March
31, 2001, the department approved the transfer of per-
mits and authorizations for the operation of the facility
from Northeast to Dominion, including an emergency
authorization that the department had issued pursuant
to General Statutes § 22a-6k. The discharge permit
remained in effect pending disposition of the renewal
application pursuant to General Statutes [§] 4-182 (b)
and [General Statutes (Rev. to 2007) §] 22a-430 (c).
‘‘In August 2006, the department issued its tentative
draft decision to renew the discharge permit.’’ (Foot-
notes omitted.) Id., 793–94. Thereafter, the plaintiff
brought the present action alleging that Millstone’s
operation was causing harm to the environment in a
variety of ways, that the hearing officer assigned to the
permit renewal proceeding had a conflict of interest
and was biased, and that the department had prejudged
the permit renewal application. Id., 796. The defendants
filed motions to dismiss the action for lack of standing.
Id. The trial court, treating the plaintiff’s action as hav-
ing been brought pursuant to § 22a-16 and General Stat-
utes (Rev. to 2007) § 22a-19 (a),5 concluded that the
plaintiff lacked standing under those statutory provi-
sions because the conduct that the plaintiff alleged
arose out of a permitting proceeding. Id., 797. Accord-
ingly, the trial court dismissed the plaintiff’s com-
plaint. Id.
The plaintiff appealed from the judgment of dismissal
to this court. Id. We concluded that, because ‘‘the plain-
tiff’s complaint adequately sets forth facts to support
an inference that unreasonable pollution, impairment
or destruction of a natural resource will probably result
from Millstone’s operation,’’ she had standing to bring
her complaint under § 22a-16. Id., 804. Responding to
the defendants’ claim that the plaintiff lacked standing
because her claims were premised entirely on alleged
flaws in the permitting process, we stated that ‘‘the
mere fact the conduct comes within the scope of a
statutory permitting scheme does not preclude a claim
under the act if, as in the present case, the plaintiff
makes a colorable claim that the conduct will cause
unreasonable pollution.’’ Id., 807.
We then addressed the issue of the appropriate rem-
edy on remand. We stated that, ‘‘[if] the trial court
determines that the plaintiff has not established that
the hearing officer is biased or the department has
prejudged the permit renewal application and that the
permit renewal proceeding is adequate to protect the
rights recognized by the act, the court then will have
the discretion to stay this action pending completion
of the permit renewal proceeding. See Waterbury v.
Washington, [260 Conn. 506, 546, 800 A.2d 1102 (2002)]
(‘under the . . . doctrine of primary jurisdiction,
which is embodied by [General Statutes] § 22a-18 of
[the act], the court has discretion, and in certain cases
should refer the case, or certain aspects of it, to the
administrative agency, yet retain jurisdiction for further
action, if appropriate, under that section’). If, on the
other hand, the trial court determines that the permit
renewal proceeding is inadequate to safeguard the
rights recognized by the act, the court may stay those
proceedings and craft orders to ensure that those rights
are adequately protected. We leave the scope of any
such orders to the informed discretion of the trial
court.’’ Burton v. Commissioner of Environmental
Protection, supra, 291 Conn. 813.
Our decision in Burton I was officially released on
June 2, 2009. The plaintiff, having received an advance
copy of the decision, filed a motion to stay the permit
renewal proceeding on May 26, 2009. The commissioner
then requested that the trial court schedule a status
conference in the present case. On June 18, 2009, after
the trial court, Aurigemma, J., had granted the request
for a status conference, the plaintiff filed a second
motion to stay the permit renewal proceeding, which
the trial court, Elgo, J., denied. On July 29, 2009, the trial
court, Graham, J., conducted the status conference.
Because Judge Graham had previously worked with
the attorney who represented Dominion, the plaintiff
requested that he recuse himself from the matter. Judge
Graham denied the request to recuse himself, but indi-
cated that he would continue the status conference so
that Judge Aurigemma, who had originally scheduled
the status conference and who was unavailable because
she was presiding over the trial of another case, could
conduct it. Judge Graham then indicated that he would
inform Judge Aurigemma that he had continued the
status conference and that it was his expectation that
she would reschedule it for some time in August, 2009.
For reasons that are unclear from the record, the status
conference was never rescheduled.
Meanwhile, the plaintiff, who, in November, 2006,
had intervened in the permit renewal proceeding pursu-
ant to § 22a-19, continued to participate in that proceed-
ing. An administrative hearing on the permit renewal
was conducted over the course of eighteen days in
January and February of 2009, at which the plaintiff
cross-examined witnesses, offered exhibits and made
objections. On February 17, 2010, the hearing officers
issued a proposed final decision and a draft permit. The
plaintiff filed exceptions to the proposed final decision
and, on May 24, 2010, participated in a hearing before
Deputy Commissioner Susan Frechette, who was
charged with issuing a final decision on the permit
renewal. On September 1, 2010, Frechette issued the
renewal permit. Thereafter, the plaintiff filed a timely
administrative appeal from the permit renewal.
In December, 2011, the trial court, Robaina, J., sua
sponte, scheduled a status conference in the present
case for March 6, 2012. The trial court, Miller, J., subse-
quently granted the plaintiff’s request for a continuance
and, ultimately, Judge Robaina held the status confer-
ence on March 15, 2012. The plaintiff indicated at the
status conference that she intended to file discovery
motions within thirty days ‘‘in order to begin to meet
[her] burden to establish . . . that the hearing officer
is biased, and/or that the department prejudged the
permit renewal application and therefore the permit
renewal proceeding is inadequate to protect the rights
recognized by the [act] . . . .’’ The defendants con-
tended that the action should be consolidated with the
plaintiff’s administrative appeal, which involved many
of the same issues. Judge Robaina stated that he would
allow several weeks for the parties to file motions and
memoranda in support of their positions.
On March 27, 2012, the department filed a motion to
consolidate the administrative appeal with this action,
and, on March 28, 2012, Dominion filed a similar motion.
On April 13, 2012, the plaintiff filed a motion for an
immediate hearing on the issue of whether the permit
renewal proceeding was adequate to protect the rights
recognized by the act. The defendants filed a response
and objection to the plaintiff’s motion in which they
argued that the court should defer ruling on the motion
until it ruled on the defendants’ motions to consolidate
and that there was no compelling reason why the matter
required immediate action. The trial court, Berger, J.,
denied the plaintiff’s motion for an immediate hearing
on the ground that it could not ‘‘logically take place
until after a decision on the [defendants’ motions] to
consolidate.’’ Thereafter, Judge Robaina granted the
motions to consolidate.
On March 25, 2014, the trial court, Scholl, J., con-
ducted another status conference. The defendants con-
tended at that hearing that the case was moot because
the permit renewal proceeding had terminated. The trial
court ordered the defendants to submit motions to dis-
miss by May 2, 2014. Thereafter, Dominion and the
commissioner filed separate motions to dismiss the
complaint on the ground that it was moot, and the
plaintiff objected to the motions. After a hearing, the
trial court, Sheridan, J., granted the defendants’
motions to dismiss. The court reasoned that, ‘‘[i]n light
of the completion of the permit renewal proceeding
more than four years ago, there is no relief the court can
grant on the claim advanced in [the] plaintiff’s [action]
consistent with the remand of the Supreme Court. The
court cannot ‘compel compliance with a statutory
scheme’ or ‘stay those proceedings and craft orders to
ensure that . . . rights are adequately protected’ for
permit renewal proceedings that have long since con-
cluded.’’ The plaintiff filed a motion for reconsideration,
which Judge Sheridan denied.6 This appeal followed.
The plaintiff contends on appeal that the trial court
improperly granted the defendants’ motions to dismiss
because this action is not moot. We agree.
‘‘Mootness implicates this court’s subject matter
jurisdiction, raising a question of law over which we
exercise plenary review.’’ (Internal quotation marks
omitted.) Connecticut Coalition Against Millstone v.
Connecticut Siting Council, 286 Conn. 57, 84, 942 A.2d
345 (2008). ‘‘A case becomes moot when due to
intervening circumstances a controversy between the
parties no longer exists. . . . An issue is moot when the
court can no longer grant any practical relief.’’ (Internal
quotation marks omitted.) Taylor v. Zoning Board of
Appeals, 71 Conn. App. 43, 46, 800 A.2d 641 (2002).
We conclude that the present action is not moot
because a controversy continues to exist between the
parties and there is practical relief that the trial court
can provide. Specifically, this court concluded in Bur-
ton v. Commissioner of Environmental Protection,
supra, 291 Conn. 804, that the plaintiff had standing to
bring her complaint pursuant to § 22a-16 because she
had alleged that ‘‘unreasonable pollution, impairment
or destruction of a natural resource will probably result
from Millstone’s operation.’’ We further concluded that
the plaintiff had standing because she had alleged pur-
suant to § 22a-20 that ‘‘the permit renewal proceeding
is inadequate to protect the rights recognized by the
act . . . because the hearing officer and the depart-
ment have not conducted the proceeding fairly and
impartially.’’ Id., 812. The issuance of the renewal permit
did not resolve or terminate these controversies, and
they continue to exist. Moreover, if the trial court were
to determine that the permit renewal proceeding was
inadequate to protect against unreasonable pollution,
the court would have the authority to adjudicate the
plaintiff’s complaint. See General Statutes § 22a-18 (c)
(‘‘[i]f the agency’s consideration has not been adequate,
and notwithstanding that the agency’s decision is sup-
ported by competent material and substantial evidence
on the whole record, the court shall adjudicate the
impact of the defendant’s conduct on the public trust
in the air, water or other natural resources of the state’’).
If the court were to determine that, contrary to the
commissioner’s decision in the permit renewal proceed-
ing, Millstone’s operations will create pollution in
excess of that permitted by the applicable statutory
scheme, the court would have the authority under § 22a-
16 to grant ‘‘declaratory and equitable relief . . . for
the protection of the public trust in the . . . water and
other natural resources of the state . . . .’’ See also
General Statutes § 22a-18 (a) (‘‘[t]he court may grant
temporary and permanent equitable relief, or may
impose such conditions on the defendant as are
required to protect the public trust in the air, water and
other natural resources of the state from unreasonable
pollution, impairment or destruction’’). Accordingly, we
conclude that the trial court improperly granted the
defendants’ motions to dismiss.7
In support of their claim to the contrary, the defen-
dants contend that this court’s remand order in Burton
I contemplated that the plaintiff would be entitled to
relief only as long as the administrative proceeding
continued to exist. Specifically, the defendants point
out that this court stated in Burton I that the trial court
would have the discretion to stay the permit renewal
proceeding if it determined that that proceeding was
not adequate to protect the rights recognized by the act.
Because the permit renewal proceeding has terminated,
they argue, there is nothing to stay. The commissioner
further contends that § 22a-20 provides that an action
pursuant to § 22a-16 may be brought ‘‘where existing
administrative and regulatory procedures are found by
the court to be inadequate for the protection of the
rights’’ recognized by the act. (Emphasis added.) The
commissioner contends that, when those administra-
tive and regulatory procedures have terminated, they
no longer exist and, therefore, no such action may be
maintained. We disagree with both contentions.
With respect to the defendants’ claim that this action
is moot because there is no longer any permit renewal
proceeding to stay, this court did not hold in Burton I
that a stay of the permit renewal proceeding was the
exclusive relief that the trial court could grant on
remand. Rather, we merely held that, under the then
existing circumstances, a determination as to whether
either this action or the permit renewal proceeding
should be stayed was an appropriate preliminary step
toward the ultimate resolution of the plaintiff’s claims.
We expressly recognized that, if the plaintiff failed to
establish that the permit renewal proceeding should be
stayed because the hearing officer was biased or the
department had prejudged the permit renewal applica-
tion, the trial court would have ‘‘the discretion to stay
this action pending completion of the permit renewal
proceeding. See Waterbury v. Washington, supra, 260
Conn. 546 (‘under the . . . doctrine of primary jurisdic-
tion, which is embodied by § 22a-18 of [the act], the
court has discretion, and in certain cases should refer
the case, or certain aspects of it, to the administrative
agency, yet retain jurisdiction for further action, if
appropriate, under that section’).’’8 (Emphasis added.)
Burton v. Commissioner of Environmental Protection,
supra, 291 Conn. 813. Thus, we expressly contemplated
that, even if the trial court determined that the permit
renewal proceeding should go forward, the trial court
could reassert jurisdiction over the plaintiff’s complaint
after the completion of that proceeding to determine
whether further action was necessary to protect the
rights recognized by the act. Thus, we anticipated that,
even if the hearing was conducted fairly, the plaintiff
could still claim after the conclusion of the hearing
that it was ‘‘inadequate for the protection of the rights
[recognized by the act]’’; General Statutes § 22a-20;
because, for example, the department had misinter-
preted or misapplied governing environmental law, and
the permit should, therefore, be invalidated.9
With respect to the commissioner’s claim that § 22a-
20 refers only to ‘‘existing administrative and regulatory
procedures’’; (emphasis added); we do not agree that
the word ‘‘existing’’ means live or ongoing in this con-
text. Rather, the most reasonable interpretation of the
phrase ‘‘existing administrative and regulatory proce-
dures’’ is that it refers to administrative and regulatory
procedures that are currently authorized or required by
statute or regulation. We note, for example, that § 22a-
18 (b) refers to ‘‘administrative, licensing or other such
proceedings [that] are required or available to deter-
mine the legality of the defendant’s conduct . . . .’’
Indeed, as we have indicated, § 22a-18 (c) expressly
authorizes the trial court to adjudicate the environmen-
tal impact of a defendant’s conduct after an agency
has issued a decision on the same issue if the court
determines that the agency’s consideration has not been
adequate. See General Statutes § 22a-18 (c) (‘‘[i]f the
agency’s consideration has not been adequate, and not-
withstanding that the agency’s decision is supported by
competent material and substantial evidence on the
whole record, the court shall adjudicate the impact of
the defendant’s conduct on the public trust in the air,
water or other natural resources of the state’’).
Of course, if the administrative agency’s decision is
no longer operative because it has expired or has been
superseded by other decisions, an action challenging
the decision pursuant to § 22a-16 would be moot
because judicial invalidation of the decision would have
no practical effect. That is not the case here. Contrary
to Dominion’s claim that this action is moot because
the plaintiff’s claims are based upon the 1992 permit
and related emergency authorizations, all of which have
been superseded by the 2010 permit, the plaintiff specif-
ically challenged the adequacy of the permit renewal
proceeding that resulted in the issuance of the renewal
permit in 2010 in her complaint. See Burton v. Commis-
sioner of Environmental Protection, supra, 291 Conn.
796 (plaintiff’s complaint alleged that ‘‘the hearing offi-
cer assigned to the permit renewal proceeding ha[s] a
conflict of interest and [is] biased, and . . . the depart-
ment has prejudged the permit renewal application and
has declined to consider the environmental impact of
Millstone’s discharge water’’). Because a determination
that the renewal proceeding was inadequate to protect
the rights recognized under the act could result in the
invalidation of the 2010 permit under which Millstone
is currently operating, the claims are not moot.
Dominion further contends that the trial court prop-
erly dismissed this action as moot because of the plain-
tiff’s inaction and delay. The sole basis for the trial
court’s ruling, however, was that this action is moot
because the court could no longer provide practical
relief. Neither the trial court nor the defendants relied
on the provisions of Practice Book § 14-3 (a), authoriz-
ing the dismissal of an action for the plaintiff’s failure
to prosecute it with reasonable diligence, and this court
has no authority to make a determination pursuant to
that rule in the first instance. Even if we were to assume
that the plaintiff has engaged in inaction and delay, the
defendants have not explained how that fact, in and
of itself, would prevent the trial court from providing
practical relief.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald and Robinson. Although Justices McDonald and Robinson
were not present when the case was argued before the court, they have
read the briefs and appendices, and listened to a recording of the oral
argument prior to participating in this decision.
1
General Statutes § 22a-16 provides in relevant part: ‘‘The Attorney Gen-
eral, any political subdivision of the state, any instrumentality or agency
of the state or of a political subdivision thereof, any person, partnership,
corporation, association, organization or other legal entity may maintain an
action in the superior court for the judicial district wherein the defendant
is located, resides or conducts business, except that where the state is the
defendant, such action shall be brought in the judicial district of Hartford,
for declaratory and equitable relief against the state, any political subdivision
thereof, any instrumentality or agency of the state or of a political subdivision
thereof, any person, partnership, corporation, association, organization or
other legal entity, acting alone, or in combination with others, for the protec-
tion of the public trust in the air, water and other natural resources of the
state from unreasonable pollution . . . .’’
2
General Statutes § 22a-20 provides in relevant part: ‘‘Sections 22a-14 to
22a-20, inclusive, shall be supplementary to existing administrative and
regulatory procedures provided by law and in any action maintained under
said sections, the court may remand the parties to such procedures. Nothing
in this section shall prevent the granting of interim equitable relief where
required and for as long as is necessary to protect the rights recognized
herein. Any person entitled to maintain an action under said sections may
intervene as a party in all such procedures. Nothing herein shall prevent
the maintenance of an action, as provided in said sections, to protect the
rights recognized herein, where existing administrative and regulatory proce-
dures are found by the court to be inadequate for the protection of the
rights. . . .’’
3
In 2011, the Department of Environmental Protection became the Depart-
ment of Energy and Environmental Protection. See Public Acts 2011, No.
11-80, § 1, codified at General Statutes § 22a-2d.
4
The plaintiff appealed from the judgment of dismissal to the Appellate
Court and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
5
General Statutes (Rev. to 2007) § 22a-19 (a) provides: ‘‘In any administra-
tive, licensing or other proceeding, and in any judicial review thereof made
available by law, the Attorney General, any political subdivision of the state,
any instrumentality or agency of the state or of a political subdivision thereof,
any person, partnership, corporation, association, organization or other legal
entity may intervene as a party on the filing of a verified pleading asserting
that the proceeding or action for judicial review 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.’’
6
Hereinafter, all references to the trial court are to Judge Sheridan.
7
We emphasize that, if the trial court determines that the hearing officer
was biased or that the department prejudged the 1997 permit renewal appli-
cation, the plaintiff is not entitled to an order that would somehow retroac-
tively stay the permit renewal proceeding while this action is adjudicated.
Contrary to the plaintiff’s suggestion, our remand order in Burton I did not
contain any mandatory language requiring that the trial court automatically
conduct such a hearing and grant such a stay in the absence of any request
by a party. Rather, it was the plaintiff’s responsibility to request a stay.
Indeed, that is exactly what the plaintiff did immediately upon learning of
our decision in Burton I. For reasons that are not entirely clear from the
record, however, after her June 18, 2009 request for a stay and a hearing
was denied, the plaintiff failed to make any further request for a hearing until
April 13, 2012, at which time the permit renewal proceeding had terminated.
Under these circumstances, an order retroactively staying the permit renewal
proceeding and invalidating the permit pending adjudication of the plaintiff’s
claims by the trial court would be unwarranted. Cf. 49 C.J.S., Judgments
§ 156 (2016) (‘‘[R]elief by entry nunc pro tunc will not be granted where
the failure to enter the judgment at the proper time was due to the party’s
own carelessness or negligence. So, a court should enter a nunc pro tunc
judgment only when it is apparent that the delay in rendering the judgment,
or a failure to enter it after its rendition, is the result of some act or
delay of the court, and is not owing to any fault of the party making the
application.’’). The only relief that is now available to the plaintiff is a
determination by the trial court as to 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, an order of appropriate declaratory or equitable relief. To the
extent that the plaintiff continues to believe that the hearing officer was
biased and the department prejudged the proceeding, any such claims relat-
ing to procedural irregularities are relevant only insofar as they purport to
provide an explanation for why the defendant issued a permit for activities
that, according to the plaintiff, do not comply with the substantive law.
Procedural irregularities would not provide the basis for a stand-alone claim.
We further emphasize that we express no opinion here regarding the
extent to which the plaintiff’s claims in this action are duplicative of her
claims in the pending administrative appeal from the decision granting the
permit renewal, which, as we have indicated, has been consolidated with
this action, the effect of any such duplication or the proper procedures for
litigating the consolidated case. The sole issue that is before us is whether
there is practical relief that the trial court can grant in this action.
8
The commissioner suggests that the provision of § 22a-18 (b) authorizing
the trial court to retain jurisdiction over a complaint brought pursuant to
§ 22a-16 if it remands the parties to an administrative proceeding does
not apply if an administrative proceeding is already under way when the
complaint is brought and the trial court takes no action to remand the matter
to the agency. We disagree. Although § 22a-18 (b) and (c) assume that, when
administrative proceedings are available, the trial court will either remand
the matter to the administrative agency or immediately adjudicate the com-
plaint, the choice being in the court’s discretion, we see nothing in the
statute that deprives the trial court of subject matter jurisdiction merely
because it fails to take either action before the termination of the administra-
tive proceeding. Accordingly, we conclude that the court retains jurisdiction
over an action pursuant to § 22a-16 as long as a controversy continues to
exist and the trial court is able to provide practical relief. In any event, the
effect of the failure to conduct a hearing to determine whether this action
or the permit renewal proceeding should be stayed in accordance with our
remand order in Burton I was to allow the permit renewal proceeding to
proceed, which was the practical equivalent of a remand to the department.
9
The commissioner contends that the only relief that the plaintiff has
sought was a reduction in ‘‘Millstone Units 2 and 3 water intakes to ‘cold
shutdown’ levels from April 1 through May 15, 2007,’’ and an order ‘‘to
convert Millstone to a closed cooling system by a date certain prior to 2010
. . . .’’ Because that relief is no longer available, the commissioner argues,
the plaintiff’s complaint is moot. The plaintiff also requested, however,
‘‘[s]uch other relief as is appropriate.’’ The plaintiff’s failure to specify the
precise nature of such other relief is not grounds for a motion to dismiss
for lack of subject matter jurisdiction. Cf. Colon v. State, 129 Conn. App.
59, 66, 19 A.3d 699 (2011) (when plaintiff fails to comply with rules of
practice governing form of prayer for relief, ‘‘the defects are technical or
circumstantial and do not warrant dismissal of the action’’).
Dominion contends that this court recognized in Burton v. Dominion
Nuclear Connecticut, Inc., 300 Conn. 542, 560–61, 23 A.3d 1176 (2011) (Bur-
ton II), that our decision in Burton I was intended only to provide a remedy
during the pendency of the permit renewal proceeding. Specifically, Domin-
ion relies on our statement in Burton II that ‘‘[w]e ultimately concluded in
Burton [I] that the plaintiff had standing to bring an action pursuant to § 22a-
16 on regulatory grounds, and we did not consider whether her allegations as
to the effect of the contaminated and heated water on the environment,
standing alone, were sufficient to support a claim of unreasonable pollution.’’
(Emphasis in original.) Id., 561. In the present case, Dominion contends
that this language supports the conclusion that the remedy in Burton I was
intended to ‘‘ensure that [the] plaintiff’s administrative and regulatory rights
under [the act] were protected during the then ongoing . . . [p]ermit
[r]enewal [p]roceeding.’’ We disagree. The intent of our statement in Burton
II was simply to recognize that the primary jurisdictional claim that this
court considered in Burton I was the defendants’ claim that, ‘‘because the
plaintiff’s claims are premised entirely on alleged flaws in the permitting
process, she has no standing to bring an action pursuant to § 22a-16.’’ Burton
v. Commissioner of Environmental Protection, supra, 291 Conn. 805. More-
over, to the extent that this court concluded in Burton I that the plaintiff
had adequately alleged that the claimed pollution was unreasonable within
the meaning of the act, that conclusion was premised on the plaintiff’s
claim that the hearing officer and the department were not enforcing the
substantive provisions of the existing statutory scheme; see id., 812; a claim
that the plaintiff did not raise in Burton II.