DocketNumber: Nos. CV 93-0524827-S, CV 93-0523-S, CV 930524826-S, CV 93-0524825-S
Citation Numbers: 1994 Conn. Super. Ct. 5671
Judges: SHEA, STATE JUDGE REFEREE.
Filed Date: 5/6/1994
Status: Non-Precedential
Modified Date: 4/17/2021
By virtue of General Statutes §
Even if ECRRA could be deemed a market participant in the garbage disposal business, condition 25 was not imposed by that CT Page 5674 body but emanated from another source, the department of environmental protection (DEP), which is plainly a regulator of, not a participant, in that business. In the cases in which the market participant exception has been found applicable, the restriction claimed to violate the commerce clause has been tied to the expenditure of funds or use of property wholly or partly furnished or controlled by the government entity that has imposed it. The basic rationale justifying the exception is that, when government acts as a proprietor engaged in a business enterprise, it should have the same freedom to choose those with whom it will deal that other proprietors enjoy. "State proprietary activities may be, and often are, burdened with the same restrictions imposed on private market participants. Evenhandedness suggests that when acting as proprietors, States should similarly share existing freedom from federal constraints, including the inherent limits of the Commerce Clause." Reeves, Inc. v. Stake,
The court concludes, that in this instance, the DEP was acting as a regulator and not as a market participant in imposing the restriction upon out-of-state waste and that, accordingly, the market participant exception does not apply to save that permit condition from the prohibition of the commerce clause.
In its post-argument brief, RESOL maintains that Condition 25, despite its restriction on out-of-state waste, does not violate the commerce clause because it applies only to the Lisbon plant and does not have the practical effect of excluding such waste from the entire state or prevent it from being disposed of at other facilities within the state. It relies on two cases,Medical Waste Assoc. v. Mayor and City Council,
In any event, the two cases relied on by RESOL were implicitly overruled in Fort Gratiot Landfill v. Mich.Dept., 504 U.S. ___,
RESOL maintains that only the second sentence of condition 25, authorizing displacement of HRRA waste only be waste the Lisbon plant receives from other Connecticut towns, raises any question involving the commerce clause and assumes that no such CT Page 5676 concern exists with respect to the first sentence, requiring RESOL to dispose of all the waste it receives from the HRRA towns. This condition does not purport to bind HRRA or any of those towns, which were not parties to the proceedings. It does bind RESOL and, implicitly, its parent corporation, Wheelabrator Environmental Systems, Inc. (Wheelabrator), which is a party to the HRRA contracts and is obliged thereunder to dispose of all the waste delivered by the towns to its transfer station in the Danbury area. Literally, the second sentence does not impose any requirement that waste from the HRRA towns be delivered to the Lisbon plant, because it provides only that RESOL "shall dispose of all solid waste which it receives from [such] towns at the facility." (Emphasis added) A promise to deliver the HRRA waste to Lisbon, however, was contained in a letter from Wheelabrator to DEP. Although performance of this promise was not made a permit condition, it may be enforceable as a representation on which DEP relied in issuing the permit in view of the affiliation of RESOL with Wheelabrator.
If the first sentence of condition 25 is read to restrain the shipment of HRRA waste to out-of-state facilities, including those controlled by Wheelabrator, as the DEP probably intended, it also would violate the commerce clause. That provision of our federal constitution has been applied to invalidate prohibitions on the export of in-state waste to other states. "Regulations which restrict transportation of waste out of a state also are subject to the limitation of the Commerce Clause." WasteSystems Corp. v. County of Mart, Minn.,
The invalidity of condition 25 does not preclude the issuance of a permit for the Lisbon plant by DEP, but it does raise the question whether the permit would have been issued if the final decision maker had realized that condition 25 in its entirety was unenforceable and that the protection it afforded against incinerating out-of-state waste at the Lisbon plant was illusory. Would DEP have accepted the HRRA contracts as sufficient compliance with the requirement of General Statutes §
The court is not aware of anything in the record to indicate that any of the plaintiffs will suffer more adverse consequences from issuance of a permit subject to condition 25 than without it. If the permit would not have been granted by the final decision maker with the realization that the assurance condition 25 was intended to provide, concerning the disposition of waste from the HRRA towns at Lisbon and its displacement only by Connecticut waste, was illusory, then the "substantial rights of the plaintiffs were harmed by inclusion of the condition. Their substantial rights include protection of the environment and, with respect to CRRA and SCRRA protection from competition by a source of pollution operating under a permit that might not have been granted except for a misconception of the law by DEP.
RESOL maintains that the plaintiffs have waived any objections to condition 25 by their failure to raise the issue of its invalidity on appeal. A court is not necessarily limited in CT Page 5678 its disposition of a case, however, to claims explicitly raised by the parties. Greenwood v. Greenwood,
RESOL relies on several cases in which the reviewing court refused to consider an issue raised for the first time on appeal that could have been raised during the administrative proceeding. Those cases are inapplicable, however, because there was no need to attack the validity of condition 25 until the final decision was rendered including that provision. During the administrative proceeding CRRA did cite the authorities which the original decision of this court has found persuasive with respect to the unconstitutionality of condition 25 and pointed out, in reference to the HRRA contracts, that "[i]n the absence of a contract that specifically requires the waste to be delivered to a specific facility, the eventually built capacity will be open." T. 7/9/92, pp. 35-36. There is no basis for claiming waiver on the part of the plaintiffs, because the defendants have not been prejudiced by the failure to articulate in their appeals the specific flaw found by the court in the final decision.
With respect to the estoppel claim against the plaintiffs, RESOL fails to identify any conduct on their part that could have misled it or the final decision maker or that has prejudiced the defendants. Although RESOL may be estopped from attacking condition 25 by virtue of its acceptance of it during the administrative proceeding, the court is not aware that inequitable conduct of any of the plaintiffs induced the final decision maker to impose that permit condition.
Even if all the parties to the proceeding were estopped from challenging condition 25, any other person who can demonstrate that the condition has an adverse effect upon his interests would be entitled to do so. A waste processor or trucker engaged in the waste disposal business who handles out-of-state waste might well be sufficiently aggrieved to bring an action contesting the validity of the restrictions imposed by the condition. SeeWaste Systems Corp. v. County of Martin, Minn., supra, (waste processor challenging ordinance requiring that all waste generated within two counties be delivered to a waste disposal facility created by the two counties; Chemical WasteManagement v. Hunt, supra (waste processor of both in-state CT Page 5679 and out-of-state waste challenging Alabama statute imposing a fee for disposal of hazardous waste from other states but not on such waste generated within the state); Fort Gratiot Landfill v.Michigan Dept., supra (waste processor challenging Michigan statute having disposal of solid waste not generated within the county where disposal area is located).
The court concludes that the possibility of a challenge to Condition 25 is neither remote nor speculative.
"Appropriate deference to a coordinate branch of government exercising its essential functions demands that we refrain from deciding constitutional challenges to its enactments until the need to do so is plainly evident." State v. Madera,
In the original decision the court concluded that the case should be remanded to DEP for further proceedings, as General Statutes §
The purpose of the remand is (1) to determine whether DEP, as the fact-finding agency, would have issued the permit despite the infirmities in the HRRA contracts, which Condition 25 was intended to cure; and (2) to determine whether the prediction that a shortage of waste disposal capacity in this state, amounting to 400 tpd., will occur by 1998, which is the basis for the DEP finding of a need for the Lisbon plant, warrants issuance of the permit at this time, given the existence of alternatives and the invalidity of the restriction imposed by condition 25 on out-of-state waste. The critical question is whether DEP would have issued the permit without the restrictions imposed by Condition 15.
For the purpose of the remand, the further proceedings should be limited to the present evidentiary record. Those issues definitively resolved by the original decision of this court should not be relitigated. If DEP should decide to exercise its authority under §
It is ordered that RESOL's motion to open and set aside the judgment be denied.
David M. Shea State Judge Referee
medical-waste-associates-limited-partnership-a-maryland-limited , 966 F.2d 148 ( 1992 )
waste-systems-corp-an-iowa-corporation-v-county-of-martin-minnesota , 985 F.2d 1381 ( 1993 )
Reeves, Inc. v. Stake , 100 S. Ct. 2271 ( 1980 )
evergreen-waste-systems-inc-an-oregon-corporation-abc-garbage-co-an , 820 F.2d 1482 ( 1987 )
City of Philadelphia v. New Jersey , 98 S. Ct. 2531 ( 1978 )
Hughes v. Oklahoma , 99 S. Ct. 1727 ( 1979 )
Hughes v. Alexandria Scrap Corp. , 96 S. Ct. 2488 ( 1976 )
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department ... , 112 S. Ct. 2019 ( 1992 )
White v. Massachusetts Council of Construction Employers, ... , 103 S. Ct. 1042 ( 1983 )
South-Central Timber Development, Inc. v. Wunnicke , 104 S. Ct. 2237 ( 1984 )