210 Conn.App. 384
Conn. App. Ct.2022Background
- Plaintiffs (Nutmeg State Crematorium, LLC and its owner) applied for two new-source air permits to install and operate two cremation machines at a Cromwell site.
- Department staff initially treated mercury as particulate and did not perform a MASC (maximum allowable stack concentration) calculation for mercury vapor; intervenors presented expert evidence (Epner) calculating MASC for mercury vapor and showing exceedance at the stack.
- Hearing officer credited the intervenors’ evidence, concluded mercury is a vapor at the discharge point (stack), and recommended denying the permits; Bureau of Air Management filed a non‑evidentiary staff response agreeing with that conclusion.
- Commissioner ruled the staff response was not evidence, considered the record, and denied the permits because mercury vapor at the discharge point would exceed the MASC; plaintiffs objected and appealed to Superior Court.
- Superior Court dismissed the administrative appeal; plaintiffs appealed to the Appellate Court arguing (1) MASC should be measured at the property line/particulate, (2) improper interpretation of “ambient air,” (3) court adjudicated issues beyond pleadings, and (4) unlawful procedure under § 4-183(j). The Appellate Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §22a-174-29(b)(2) requires MASC for mercury at the discharge point (stack) or at the property line | Measure at property line where mercury is particulate; no MASC calc for vapor needed | Regulation requires MASC at the discharge point; mercury is vapor at the stack and hazard limit exists | MASC must be calculated at the discharge point for mercury vapor; plain text controls |
| Meaning/application of “ambient air” in the regulation | "Ambient air" should be confined to applicant’s property line; MASC formula targets property line concentrations | Terms (discharge point, stack, MASC) show the regulation targets stack emissions/ambient air outside buildings | Court agreed with department: regulation applies at the stack; commissioner’s application supported by substantial evidence |
| Whether the trial court adjudicated issues beyond the pleadings | Court ruled on issues not raised on appeal (mercury phase, MASC calculation) warranting reversal | Plaintiffs litigated alleged misinterpretation/misapplication of §22a-174-29; court needed to construe and apply the regulation | Claims were within scope; court properly addressed legal interpretation and application |
| Procedural/due‑process claim under §4-183(j) (unlawful procedure) based on bureau letter being admitted without cross-examination | Bureau filed an unsworn response letter after hearing that contradicted prior positions; plaintiffs lacked meaningful opportunity to respond or cross-examine | Commissioner treated the letter as non‑evidentiary staff response; regulations allow exceptions/responses; plaintiffs could and did object | Letter was non‑evidentiary; commissioner’s procedure lawful; no §4-183(j) violation; decision supported by substantial evidence |
Key Cases Cited
- Robinson v. Tindill, 208 Conn. App. 255 (2021) (statutory‑interpretation principles; start with text and context)
- Cockerham v. Zoning Board of Appeals, 146 Conn. App. 355 (2013) (agency deference and treating legal questions de novo)
- Nussbaum v. Dept. of Energy & Environmental Protection, 206 Conn. App. 734 (2021) (limits on UAPA review; substantial‑evidence standard)
- Towing & Recovery Professionals of Connecticut, Inc. v. Dept. of Motor Vehicles, 205 Conn. App. 368 (2021) (explaining the substantial evidence rule in administrative review)
- Godaire v. Dept. of Social Services, 174 Conn. App. 385 (2017) (agency decision reversed where corrected evidence deprived party of meaningful opportunity to respond)
- Commerce Park Associates, LLC v. Robbins, 193 Conn. App. 697 (2019) (interpretation of pleadings and scope of judicial review)