Nutmeg State Crematorium, LLC v. Dept. of Energy & Enviromental Protection

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NUTMEG STATE CREMATORIUM, LLC, ET AL.
v. DEPARTMENT OF ENERGY AND
ENVIRONMENTAL PROTECTION
ET AL.
(AC 43834)
Elgo, Suarez and Sullivan, Js.
Syllabus
The plaintiffs appealed to this court from the judgment of the trial court
dismissing their administrative appeal from the decision of the Commis-
sioner of Energy and Environmental Protection denying their applica-
tions for two new source air permits. The plaintiffs sought the required
permits from the defendant Department of Energy and Environmental
Protection in order to install and operate two cremation machines at
the site of their proposed crematorium. After a hearing, a department
hearing officer issued a decision recommending that the plaintiffs’ permit
applications be denied on the basis that the plaintiffs’ cremation system
exceeded the maximum allowable stack concentration (MASC) for emis-
sions of mercury pursuant to the applicable regulation (§ 22a-174-29).
The commissioner adopted the hearing officer’s decision and issued a
final decision affirming the denial of the permit applications. Held:
1. The plaintiffs could not prevail on their claim that § 22a-174-29 (b) (2)
should be interpreted to require mercury to be measured at the property
line, at which point the mercury would be in its particulate form and
calculating the MASC would be unnecessary, as it was clearly contrary
to what a plain reading of the regulation provided; this court, like the
commissioner and the trial court, interpreted § 22a-174-29 (b) (2) to
require the calculation of the MASC for emissions of mercury in its
vapor form at the discharge point from the crematorium stacks.
2. The plaintiffs could not prevail on their claim that the trial court erred
by interpreting improperly the term ambient air: the trial court properly
interpreted § 22a-174-29 (b) (2), and, in light of this court’s review of
the record and the considerable discretion afforded to the commissioner
on questions of facts, the trial court properly applied that regulation to
the facts of the present case when it concluded that the commissioner’s
decision to deny the plaintiffs’ applications was not unreasonable, arbi-
trary, capricious, illegal or an abuse of discretion, as the data presented
to the commissioner demonstrated that the concentration of mercury
vapor at the discharge point would exceed the MASC for mercury.
3. The plaintiffs’ contention that the trial court went beyond the pleadings
and improperly adjudicated issues not raised on appeal was unfounded:
because the plaintiffs claimed that the commissioner misinterpreted and
misapplied § 22a-174-29, it was clearly necessary for the court to consider
the interpretation of that regulation, along with how it should be applied
to the facts of the present case, in order to resolve the plaintiffs’ appeal.
4. The plaintiffs could not prevail on their claim that the trial court erred
by violating binding legal precedent and the applicable statute (§ 4-183
(j)): although the plaintiffs argued that the commissioner’s decision was
made upon unlawful procedure on the basis that he improperly admitted
a certain letter from department staff into evidence without providing
the plaintiffs the opportunity to respond or to cross-examine the staff,
the commissioner made clear that the letter was not evidence and,
therefore, there was no requirement to afford the plaintiffs the opportu-
nity for cross-examination; moreover, the department’s regulations did
not prohibit such a letter, and the plaintiffs were able to respond to the
letter by filing their objection; furthermore, the plaintiffs’ claim that the
court misunderstood the evidence and eschewed the expert opinions
was simply unsupported by the record and, as this court already con-
cluded, the court properly interpreted the regulations and properly
applied the substantial evidence standard in its review of the commis-
sioner’s decision.
Argued October 21, 2021—officially released February 1, 2022
Procedural History
Appeal from the decision of the named defendant
denying certain permit applications submitted by the
plaintiffs, brought to the Superior Court in the judicial
district of New Britain and tried to the court, Cordani,
J.; judgment dismissing the appeal, from which the
plaintiffs appealed to this court. Affirmed.
Matthew S. Carlone, for the appellants (plaintiffs).
Benjamin W. Cheney, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, Clare Kindall, solicitor general, and Matthew
I. Levine, assistant attorney general, for the appellee
(named defendant).
Jesse A. Langer, for the appellee (defendant Coles
Brook Commerce Park Owners Association, Inc.).
Opinion
SULLIVAN, J. The plaintiffs, Luke DiMaria and Nut-
meg State Crematorium, LLC,1 appeal from the judg-
ment of the Superior Court dismissing their administra-
tive appeal from the decision of the Commissioner of
Energy and Environmental Protection (commissioner),
denying the plaintiffs’ applications for two new source
review air permits (air permits), which had been submit-
ted by the plaintiffs to the defendant Department of
Energy and Environmental Protection (department).2
On appeal, the plaintiffs claim that the trial court erred
by (1) concluding that the plaintiffs’ cremation system
exceeded the maximum allowable stack concentration
(MASC) for mercury, (2) interpreting improperly the
term ‘‘ambient air’’ to mean all atmosphere external
to buildings, (3) adjudicating issues not raised in the
administrative appeal, and (4) violating binding legal
precedent and General Statutes § 4-183 (j).3 We affirm
the judgment of the court dismissing the plaintiffs’
appeal.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On October 15,
2014, the plaintiffs submitted to the department their
applications for two new air permits, pursuant to § 22a-
174-3a (a) (1) of the Regulations of Connecticut State
Agencies,4 to install and operate two cremation
machines necessary for cremating human remains at
the site of their proposed crematorium located at 35
Commerce Drive in Cromwell. On January 2, 2015, the
department issued a notice of sufficiency indicating
that the applications were complete. Following the issu-
ance of the notice of sufficiency, the department began
to conduct a technical review of the applications. Dur-
ing this review period, department staff performed
MASC calculations for various pollutants and compared
them to emissions from the proposed crematorium. No
MASC calculation was performed for mercury, how-
ever, because department staff decided to consider mer-
cury in its particulate form, rather than in its vapor
form.5
On August 31, 2016, the department issued its tenta-
tive determination to recommend approval of the air
permits. In response, several business entities filed a
request with the department to obtain intervenor status,
which was granted on October 27, 2016. Evidentiary
hearings were held on February 28, and on March 1
and 2, 2017. At the evidentiary hearings, the intervening
parties argued to the department that the plaintiffs were
responsible for showing compliance with the MASC for
mercury in its vapor form because § 22a-174-29 (b) (2)
of the regulations6 requires that the MASC be calculated
for the phase of mercury that it will be in at the dis-
charge point from the crematorium stacks, which is in
its vapor form. To support their contention, the
intervening parties presented expert evidence from Eric
Epner, an engineer with expertise in air permitting and
air pollution control. Epner performed a MASC calcula-
tion for mercury in its vapor form and concluded that
the emissions from the proposed crematorium stacks
would not satisfy the MASC for mercury pursuant to
§ 22a-174-29 (b) (2).
The hearing officer credited the evidence presented
by the intervening parties and concluded that, on the
basis of a plain reading of § 22a-174-29 of the regula-
tions, the plaintiffs were responsible for showing com-
pliance with the MASC for mercury in its vapor form,
rather than in its particulate form. On August 11, 2017,
the hearing officer issued his proposed final decision,
which recommended that the commissioner deny the
plaintiffs’ applications. Subsequent to the hearing offi-
cer’s proposed final decision, the Bureau of Air Manage-
ment (bureau) at the department submitted a posthear-
ing staff response stating that it would not file an
exception to the proposed final decision and that it
agreed with the conclusion of the hearing officer. Spe-
cifically, this response stated that the bureau agreed
with the following conclusions of the hearing officer: (1)
‘‘[m]ercury vapor will in fact be emitted at the discharge
point from the crematories,’’ (2) ‘‘[t]he applicant[s] must
demonstrate that emissions of mercury vapor from the
crematories will comply with the [MASC] for mercury
vapor, as calculated based on the hazard limiting value
. . . for mercury vapor,’’ and (3) ‘‘[t]he applicant[s]
ha[ve] not demonstrated, through the permit applica-
tion and hearing process that the emissions of mercury
vapor from the crematories will comply with the
[MASC] for mercury vapor, as calculated based on the
hazard limiting value . . . for mercury vapor.’’
On August 28, 2017, the plaintiffs filed an objection
to the bureau’s response, seeking to strike it from the
evidentiary record. The plaintiffs argued that the
bureau’s response was an improper posthearing sub-
mission and that § 22a-3a-6 (y) (3) (A) of the regulations7
‘‘only provides that a party may submit an exception
to the proposed final decision of the hearing officer.’’
On October 24, 2017, the commissioner issued his ruling
on the plaintiffs’ objection and motion to strike, con-
cluding that ‘‘[t]here is nothing in the language of the
rule, nor [have] the applicant[s] provided any other
authority to support [their] claim that [§] 22a-3a-6 (y) (3)
(A) or the related provision in Connecticut’s Uniform
Administrative Procedure Act . . . prohibits staff [of
the department] from filing, or me from considering,
[the] staff’s [proposed final decision] response. . . .
The applicant[s’] motion sought to have [the] staff’s
[proposed final decision] response stricken from the
evidentiary record. . . . However, [the] staff’s [pro-
posed final decision] response is not evidence. . . .
Since it is not evidence, [the] staff’s [proposed final
decision] response will not be included in the eviden-
tiary record in this matter.’’ (Emphasis omitted.)
On January 8, 2018, the commissioner issued his final
ruling denying the plaintiffs’ applications for new air
permits. The plaintiffs subsequently appealed to the
Superior Court, arguing that (1) ‘‘their constitutional
right to due process was violated when . . . [the
department] submitted evidence directly contradicting
the evidence it proffered at trial and [in] its posttrial
brief’’ and (2) the . . . commissioner misconstrued the
[department’s] regulations in justifying an arbitrary and
capricious denial of the plaintiffs’ applications.’’
(Emphasis omitted.) The trial court rejected the plain-
tiffs’ claims. This appeal followed. Additional facts will
be set forth as necessary.
I
On appeal to this court, the plaintiffs first argue that
the trial court erred by concluding that their cremation
system exceeded the MASC for mercury. Specifically,
the plaintiffs argue that § 22a-174-29 of the regulations
does not require them to demonstrate that the mercury
vapor emitted from the discharge point at the cremato-
rium stacks complies with the regulation. Rather, the
plaintiffs contend that the proper reading of the regula-
tion requires the measure of mercury at the property
line, at which point the mercury would be in its particu-
late form and calculating the MASC would be unneces-
sary. We disagree.
We begin our analysis by setting forth the appropriate
standard of review. ‘‘The process of statutory interpre-
tation involves the determination of the meaning of the
statutory language as applied to the facts of the case,
including the question of whether the language does so
apply. . . . When construing a statute, [o]ur fundamen-
tal objective is to ascertain and give effect to the appar-
ent intent of the legislature. . . . In seeking to deter-
mine that meaning, General Statutes § 1-2z directs us
first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
Furthermore, [t]he legislature is always presumed to
have created a harmonious and consistent body of law
. . . [so that] [i]n determining the meaning of a statute
. . . we look not only at the provision at issue, but also
to the broader statutory scheme to ensure the coher-
ency of our construction. . . . Because issues of statu-
tory construction raise questions of law, they are sub-
ject to plenary review on appeal.’’ (Internal quotation
marks omitted.) Robinson v. Tindill, 208 Conn. App.
255, 264, A.3d (2021).
‘‘Ordinarily, this court affords deference to the con-
struction of a statute applied by the administrative
agency empowered by law to carry out the statute’s
purposes. . . . Cases that present pure questions of
law, however, invoke a broader standard of review than
is ordinarily involved in deciding whether, in light of
the evidence, the agency has acted unreasonably, arbi-
trarily, illegally or in abuse of its discretion. . . . Fur-
thermore, when [an] agency’s determination of a ques-
tion of law has not previously been subject to judicial
scrutiny . . . the agency is not entitled to special defer-
ence. . . . [I]t is for the courts, and not administrative
agencies, to expound and apply governing principles of
law. . . . These principles apply equally to regulations
as well as to statutes.’’ (Internal quotation marks omit-
ted.) Cockerham v. Zoning Board of Appeals, 146 Conn.
App. 355, 364–65, 77 A.3d 204 (2013), cert. denied, 311
Conn. 919, 85 A.3d 653 (2014), and cert. denied, 311
Conn. 919, 85 A.3d 654 (2014).
With the foregoing principles in mind, we begin with
the language of the regulation at issue in the present
case. Section 22a-174-29 (b) (2) of the regulations pro-
vides in relevant part: ‘‘No person, who is required to
maintain compliance with a permit under section 22a-
174-3a of the Regulations of Connecticut State Agencies
shall cause or permit the emission of any hazardous air
pollutant listed in Table 29-1, 29-2 or 29-3 of this section
from any stationary source or modification at a concen-
tration at the discharge point in excess of the maxi-
mum allowable stack concentration unless such source
is in compliance with the provisions of subsection (d)
(3) of this section. . . .’’ (Emphasis added.) Several
definitions of the terms used in the relevant regulation
are pertinent to our resolution of this appeal. The term
‘‘discharge point’’ is defined as ‘‘any stack or area from
which a hazardous air pollutant is released into the
ambient air.’’ Regs., Conn. State Agencies § 22a-174-1
(35). The term ‘‘stack’’ is defined as ‘‘any point in a
source designed to emit solids, liquids, or gases into
the air, including a pipe or duct . . . .’’ 40 C.F.R.
§ 51.100 (ff); see Regs., Conn. State Agencies § 22a-174-
1 (109) (referring to definition set forth in 40 C.F.R.
§ 51.100 (ff) but providing ‘‘that stack shall also include
a flare’’). MASC is defined as ‘‘the maximum allowable
concentration of a hazardous air pollutant in the
exhaust gas stream at the discharge point of a stationary
source under actual operating conditions.’’ Regs., Conn.
State Agencies § 22a-174-1 (68). A MASC calculation is
performed using a formula specified in § 22a-174-29 (c)
(1) of the regulations. Table 29-3 lists mercury particu-
late as a hazardous air pollutant but provides no numeri-
cal value for the MASC equation. Regs., Conn. State
Agencies § 22a-174-29. The table, however, does provide
a hazard limiting value for mercury in vapor form. Id.,
§ 22a-174-29, Table 29-3.
The plaintiffs rely on the fact that there is no hazard
limiting value for mercury in its particulate form listed
in Table 29-3, and, as a result, they contend that there
is no way to calculate the MASC for mercury at the
property line. The clear and unambiguous language of
§ 22a-174-29 (b) (2) of the regulations, however,
requires that no hazardous air pollutant be emitted from
the discharge point in excess of the MASC. It is undis-
puted that mercury will be in its vapor form at the
discharge point at the stacks and that there is a hazard
limiting value for mercury vapor.
Despite the plain and unambiguous language of § 22a-
174-29 (b) (2) of the regulations, the plaintiffs neverthe-
less contend that this regulation should be interpreted
to mean that no hazardous air pollutant found at the
property line should exceed the MASC. Specifically,
the plaintiffs argue that it is unnecessary to perform a
MASC calculation as to mercury, using the hazard lim-
iting value for mercury vapor, because mercury vapor
will not exist at the property line. Contrary to the plain-
tiffs’ argument, there is nothing in the regulation that
provides that a MASC need not be calculated based on
the existence or nonexistence of mercury vapor at the
property line. Rather, the regulation clearly identifies
the relevant point at which to measure the MASC as
the discharge point. Here, it is undisputed that mercury
vapor will be present at the discharge point—the rele-
vant place of measurement per the plain reading of
the regulation—not at the property line. The plaintiffs’
interpretation is clearly contrary to what a plain reading
of the regulation provides.
Although our review is plenary, we agree with the
commissioner’s and the trial court’s interpretation of
the regulation. The commissioner determined that
§ 22a-174-29 (b) (2) of the regulations requires the calcu-
lation of the MASC for mercury emissions in its vapor
form. Likewise, the trial court concluded that ‘‘to deter-
mine whether this emission can be permitted, a MASC
for mercury vapor in this particular situation must be
calculated and compared to the actual expected emis-
sion.’’ On the basis of the plain meaning of the regula-
tion, we conclude that calculating the MASC for mer-
cury vapor is required under § 22a-174-29 (b) (2).
II
The plaintiffs next argue that the trial court erred by
interpreting improperly the term ‘‘ambient air’’ to mean
all atmosphere external to buildings. Specifically, the
plaintiffs contend that ‘‘[t]he record unequivocally
establishes that the term ‘[a]mbient [a]ir’ must be inter-
preted as commensurate with the applicant’s property
line . . . . [T]he MASC formula in [§ 22a-174-29 (b) of
the regulations] . . . . is a differential equation con-
structed to calculate the MASC at the discharge point
so that the concentration of only those [hazardous air
pollutants] present at the applicant’s property line may
be calculated . . . .’’ (Emphasis omitted.) The depart-
ment contends that ‘‘[t]he terms used to define MASC
make it clear that MASC is intended to regulate [hazard-
ous air pollutants] emitted from the stack.’’ It further
contends that ‘‘[t]he hearing officer credited . . . Epn-
er’s testimony and that testimony is more than sufficient
evidence to show that the plaintiffs’ proposed cremato-
rium stacks would not comply with the MASC for mer-
cury.’’ We agree with the department.
In part I of this opinion, we determined the proper
interpretation of § 22a-174-29 of the regulations. We
now turn to the department’s application of that regula-
tion to the facts in the present case. This appeal is
brought pursuant to the Uniform Administrative Proce-
dure Act (UAPA), General Statutes § 4-166 et seq. Judi-
cial review of an administrative decision in an appeal
under the UAPA is limited. See Nussbaum v. Dept. of
Energy & Environmental Protection, 206 Conn. App.
734, 739, 261 A.3d 1182, cert. denied, 339 Conn. 915,
262 A.3d 134 (2021). ‘‘[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 [the appellate] 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. . . . Our
ultimate duty is to determine, in view of all the evidence,
whether the agency, in issuing its order, acted unreason-
ably, arbitrarily, illegally or in abuse of its discretion.’’
(Internal quotation marks omitted.) Id.‘‘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 . . . .’’
(Internal quotation marks omitted.) Towing & Recovery
Professionals of Connecticut, Inc. v. Dept. of Motor
Vehicles, 205 Conn. App. 368, 371, 257 A.3d 978, cert.
denied, 338 Conn. 910, 258 A.3d 1279 (2021).
Our review of the record persuades us that the judg-
ment of the court should be affirmed. In addressing the
plaintiffs’ claims on appeal, the court concluded that
the commissioner’s decision to deny the plaintiffs’ appli-
cations for two new permits was not unreasonable,
arbitrary, capricious, illegal or an abuse of discretion.
The court observed that ‘‘this decision turns, not on
the factual evidence submitted, but, instead, on the legal
interpretation of the applicable regulations. Once the
regulations are construed, their application to the evi-
dence in this matter becomes uneventful.’’ The court
concluded that, ‘‘[i]f the regulations require a MASC
analysis at the stack, the permits must be denied
because the uncontroverted record evidence revealed
that the MASC for mercury vapor, as calculated and
entered into evidence by the intervening parties, was
exceeded at the stack and no emission exceeding the
MASC can be allowed.’’ (Emphasis added.) We agree
with the court’s analysis.
‘‘[T]his court . . . may [not] retry [a] case or substi-
tute its own judgment for that of the administrative
agency on the weight of the evidence or questions of
fact.’’ (Internal quotation marks omitted.) Towing &
Recovery Professionals of Connecticut, Inc. v. Dept. of
Motor Vehicles, supra, 205 Conn. App. 375. The commis-
sioner had the evidence of the bureau staff, as well as
the testimony of Epner and the entire administrative
record before him when making his final decision. This
evidence included the MASC, performed by Epner, of
mercury in its vapor form at the end of the stack. The
data presented to the commissioner demonstrated that
the concentration of mercury vapor at the discharge
point would exceed the MASC for mercury. In light of
the record and the considerable discretion concerning
findings of fact afforded to the commissioner, we reject
the plaintiffs’ claim and conclude that the trial court
properly interpreted the regulations and properly
applied the facts in the present case.
III
The plaintiffs next argue that the court erred by adju-
dicating issues not raised on appeal. Specifically, the
plaintiffs contend that the court adjudicated three par-
ticular issues that were not raised on appeal: (1)
whether the mercury emissions should be considered
in deciding whether the proposed discharge meets the
regulatory requirements for an air permit, (2) how § 22a-
174-29 of the regulations regarding mercury emissions
and the MASC should be applied, and (3) whether the
plaintiffs failed to satisfy § 22a-174-29 because they did
not calculate a MASC for mercury vapor as required by
the regulation. The plaintiffs further contend that ‘‘[i]t
is clear and unequivocal that the court ruled upon issues
outside the scope of the pleadings, which is grounds
for automatic reversal.’’
We begin our analysis with the standard of review.
‘‘Any argument that the court acted outside the scope
of the pleadings implicates its authority to act, which
presents a question of law over which our review is
plenary. . . . Furthermore, [t]he interpretation of
pleadings is always a question of law for the court
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Commerce Park Associates, LLC v. Robbins,
193 Conn. App. 697, 732, 220 A.3d 86 (2019), cert. denied
sub nom. Robbins Eye Center, P.C. v. Commerce Park
Associates, LLC, 334 Conn. 912, 221 A.3d 447 (2020),
and cert. denied sub nom. Robbins Eye Center, P.C. v.
Commerce Park Associates, LLC, 334 Conn. 912, 221
A.3d 448 (2020).
In their appeal to the Superior Court, the plaintiffs
asked the court to vacate and reverse the department’s
final order denying their air permit applications. Specifi-
cally, the plaintiffs alleged, among other things, that,
‘‘[i]n denying the plaintiffs’ applications the [depart-
ment] acted arbitrarily, capriciously and illegally by
requiring the plaintiffs [to] use the [hazard limiting
value] for mercury vapor, rather than mercury particu-
late, in connection with the plaintiffs’ MASC calcula-
tions for mercury emissions, in order to demonstrate
[that] the proposed cremation systems comply with
[§ 22a-174-29 of the regulations]. . . . [T]here are no
facts contained in the record which could form a proper
legal basis for the [department] to reach its conclusions
that [§ 22a-174-29] require[s] the plaintiff[s] to demon-
strate compliance with the MASC using the [hazard
limiting value] for mercury vapor rather than mercury
particulate . . . .’’
The plaintiffs’ contention that the court went beyond
the pleadings is unfounded. The plaintiffs pleaded that
the commissioner misinterpreted and misapplied § 22a-
174-29 of the regulations; thus, it was clearly necessary
for the court to consider the interpretation of that regu-
lation, along with how it should be applied to the facts
of the case at bar, in order to resolve the administrative
appeal. The interpretation of § 22a-174-29 is clearly a
legal question for the court to review, and, accordingly,
the court was well within its discretion to adjudicate
the appeal in the manner that it did.
IV
The plaintiffs’ final claim on appeal is that the court
erred by violating binding legal precedent and § 4-183
(j). Specifically, the plaintiffs contend that ‘‘[t]he trial
court cannot substitute its judgment as to the credibility
of witnesses or findings of fact so long as there is a
rational basis for the factual findings in the record. . . .
The trial court’s decision . . . substitutes the court’s
own judgment in its place without regard to fundamen-
tal scientific and mathematical concepts.’’ (Citations
omitted.) The plaintiffs further contend that ‘‘[i]t is clear
from the decision that the court fundamentally misun-
derstood all of the fundamental scientific and mathe-
matical underpinning[s] central to this case.’’ We dis-
agree.
We previously concluded in parts I and II of this
opinion that the court properly interpreted the regula-
tions. This claim is another recitation of the arguments
already addressed in this opinion. The court properly
applied the substantial evidence standard in its review
of the commissioner’s decision. The plaintiffs claim that
the court substituted its own judgment by ‘‘eschewing
the expert opinions of every engineer that testified in
this case’’; however, that assertion is simply unsup-
ported by the record.
Finally, the plaintiffs rely on Godaire v. Dept. of
Social Services, 174 Conn. App. 385, 165 A.3d 1257(2017), in which this court reversed the trial court’s
ruling on the ground that the administrative decision
was made upon unlawful procedure pursuant to § 4-183
(j) (3) because ‘‘the plaintiff did not have a meaningful
opportunity to respond to the corrected evidence pre-
sented by the department . . . .’’ (Internal quotation
marks omitted.) Id., 399. The plaintiffs assert that
Godaire should inform our decision in the present case
because the commissioner’s decision was made upon
unlawful procedure. Specifically, the plaintiffs contend
that ‘‘[the department] submitted an unsworn document
into the record, which was never scrutinized under
cross-examination, and the gravamen of said document
contradicts every representation made by the [depart-
ment] in the preceeding two years . . . . [The letter
was submitted] during a time period wherein the depart-
ment[’s rules of practice prohibit the admission of new
evidence . . . .’’
Contrary to the plaintiffs’ assertion, the commis-
sioner made clear that the response letter submitted
by the bureau staff was not evidence. The commissioner
stated in his ruling on the plaintiffs’ objection and
motion to strike the response letter that ‘‘[t]here is
nothing in the language of the rule, nor [have] the appli-
cant[s] provided any other authority to support [their]
claim that [§] 22a-3a-6 (y) (3) (A) [of the regulations]
or the related provision in [the UAPA] . . . prohibits
[the] staff from filing, or me from considering, [the]
staff’s [proposed final decision] response. . . . The
applicant[s’] motion sought to have [the] staff’s [pro-
posed final decision] response stricken from the eviden-
tiary record. . . . However, [the] staff’s [proposed
final decision] response is not evidence. . . . Since it
is not evidence, [the] staff’s [proposed final decision]
response will not be included in the evidentiary record
in this matter.’’ (Emphasis altered.) We agree with the
commissioner. The response letter did not constitute
evidence; rather, the document outlined the bureau
staff’s opinion and was properly included in the admin-
istrative record.8 Nor do any of the department’s regula-
tions prohibit such a letter. In fact, the regulations
explicitly provide for an opportunity to submit excep-
tions to the commissioner.9 Moreover, the plaintiffs did
respond to this letter through an objection. The commis-
sioner considered and denied their objection, conclud-
ing that the bureau staff’s response was properly filed
and was not evidence, and that, as such, there was no
requirement to afford the plaintiffs the opportunity to
cross-examine the bureau staff.
In summary, the plaintiffs have failed to show that
§ 22a-174-29 of the regulations does not require a MASC
calculation for mercury at the discharge point or that
the commissioner’s decision was not based on substan-
tial evidence in the record.
The judgment is affirmed.
In this opinion the other judges concurred.
1
DiMaria is the sole member of Nutmeg State Crematorium, LLC. For
efficiency, we collectively refer to both as the plaintiffs throughout this opin-
ion.
2
The other defendants in the underlying appeal to the Superior Court
were Coles Brook Commerce Park Owners Association, Inc. (Coles Brook),
Prime Locations of CT, LLC, Hasson Holdings, LLC, SMS Realty, LLC, C&
G Holdings, LLC, and C&G Holdings II, LLC. Of those defendants, only Coles
Brook is participating in this appeal. Coles Brook did not file its own brief
but, rather, adopted the department’s brief in full.
3
General Statutes § 4-183 (j) provides in relevant part: ‘‘The court shall
not substitute its judgment for that of the agency as to the weight of the
evidence on questions of fact. The court shall affirm the decision of the
agency unless the court finds that substantial rights of the person appealing
have been prejudiced because the administrative findings, inferences, con-
clusions, or decisions are: (1) In violation of constitutional or statutory
provisions; (2) in excess of the statutory authority of the agency; (3) made
upon unlawful procedure; (4) affected by other error of law; (5) clearly
erroneous in view of the reliable, probative, and substantial evidence on
the whole record; or (6) arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion. If the court finds
such prejudice, it shall sustain the appeal and, if appropriate, may render
a judgment under subsection (k) of this section or remand the case for
further proceedings. . . .’’
4
Section 22a-174-3a (a) (1) of the Regulations of Connecticut State Agen-
cies provides in relevant part: ‘‘Prior to beginning actual construction of
any stationary source or modification not otherwise exempted . . . the
owner or operator shall apply for and obtain a permit to construct and
operate under this section for any . . . (G) [i]ncinerator for which construc-
tion commenced on or after June 1, 2009 . . . .’’
5
The trial court made the following findings regarding mercury. ‘‘Mercury
in various forms is a hazardous air pollutant . . . regulated under § 22a-
174-29 of the Regulations of Connecticut State Agencies. There is evidence
in the record that exposure to mercury can harm the brain, heart, kidneys,
lungs, and immune system of people of all ages as well as cause death,
reduced reproduction, slower growth and development, and abnormal
behavior in animals. There is agreement amongst the parties that operation
of the proposed cremation machines will emit mercury.’’
6
Section 22a-174-29 (b) (2) of the Regulations of Connecticut State Agen-
cies provides in relevant part: ‘‘No person, who is required to maintain
compliance with a permit under section 22a-174-3a of the Regulations of
Connecticut State Agencies shall cause or permit the emission of any hazard-
ous air pollutant listed in Table 29-1, 29-2 or 29-3 of this section from any
stationary source or modification at a concentration at the discharge point
in excess of the maximum allowable stack concentration unless such source
is in compliance with the provisions of subsection (d) (3) of this section.
. . .’’ (Emphasis added.)
7
Section 22a-3a-6 (y) (3) (A) of the Regulations of Connecticut State
Agencies provides in relevant part: ‘‘[W]ithin [fifteen] days after personal
delivery or mailing of the proposed final decision any party or intervenor
may file with the Commissioner exceptions thereto. . . .’’
8
Section 22a-3a-6 (v) of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘(1) . . . [F]or the purposes of a Department
proceeding the record shall include: (A) any briefs or exceptions filed before
or after issuance of the proposed final decision and (B) any correspondence
between the hearing officer or Commissioner and any party, intervenor, or
other person concerning the proceeding. (2) The evidentiary record shall
be maintained separately from the rest of the record. The evidentiary record
shall consist, in addition to the recording of the hearing, of all documents
offered into evidence (exhibits), regardless whether they are admitted.
Exhibits which are not admitted shall be marked for identification.’’ (Internal
quotation marks omitted.)
9
Section 22a-3a-6 (y) (3) (A) of the Regulations of Connecticut State
Agencies provides in relevant part: ‘‘Unless otherwise specified by the Com-
missioner, within [fifteen] days . . . of the proposed final decision any party
. . . may file with the Commissioner exceptions thereto.’’