Nutmeg State Crematorium, LLC v. Dep't of Energy & Envtl. Prot.

210 Conn.App. 384

270 A.3d 158

NUTMEG STATE CREMATORIUM, LLC, et al.

v.DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION et al.

AC 43834

Appellate Court of Connecticut.

Argued October 21, 2021

Officially released February 1, 2022

Matthew S. Carlone, Wethersfield, 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, New Haven, for the appellee (defendant Coles Brook Commerce Park Owners Association, Inc.).

Elgo, Suarez and Sullivan, Js.

SULLIVAN, J.

The plaintiffs, Luke DiMaria and Nutmeg State Crematorium, LLC,¹ appeal from the judgment of the Superior Court dismissing their administrative 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 submitted 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 relevant 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 issuance of the notice of sufficiency, the department began to conduct a technical review of the applications. During 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, however, because department staff decided to consider mercury in its particulate form, rather than in its vapor form.⁵

On August 31, 2016, the department issued its tentative 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 discharge 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 calculation 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 regulations, the plaintiffs were responsible for showing compliance 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 officer's proposed final decision, the Bureau of Air Management (bureau) at the department submitted a posthearing 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. Specifically, 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 application 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 submission 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, concluding 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 [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 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 plaintiffs’ 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 crematorium stacks complies with the regulation. Rather, the plaintiffs contend that the proper reading of the regulation requires the measure of mercury at the property line, at which point the mercury would be in its particulate form and calculating the MASC would be unnecessary. We disagree.

We begin our analysis by setting forth the appropriate standard of review. "The process of statutory interpretation 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 fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to determine 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 coherency of our construction. ... Because issues of statutory construction raise questions of law, they are subject 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 construction 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, arbitrarily, illegally or in abuse of its discretion. ... Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny ... the agency is not entitled to special deference. ... [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 omitted.) Cockerham v. Zoning Board of Appeals , 146 Conn. App. 355, 364–65, 77 A.3d 204 (2013), cert. denied, 311...