254 Conn. 1 | Conn. | 2000
Opinion
The dispositive issue in this appeal is whether the plaintiffs, who opposed the restart of a nuclear generating unit, were excused from having to exhaust all administrative remedies with the department of environmental protection (department) before seeking injunctive relief in the Superior Court because the administrative remedies available to them were futile or inadequate.
The following facts are pertinent to this appeal. The Millstone Nuclear Power Generating Station (Millstone) consists of three nuclear power units. Each unit is
The defendants hold a National Pollutant Discharge Elimination System (NPDES) permit, authorizing the use of the once-through condenser cooler water system for Millstone.
The defendants’ permit was issued by the department on December 14,1992, and was due to expire on December 13,1997.
On March 22, 1999, the defendants moved to dismiss the complaint, asserting that the plaintiffs had failed to exhaust their administrative remedies before the department, and that the department had primary jurisdiction over the issues raised in the plaintiffs’ complaint. That motion was denied by Judge O’Neill on the ground that resort to the available administrative remedies would be futile and inadequate in light of the alleged harms created by the once-through condenser cooler water system because of the imminence of the peak spawning season for winter flounder. The court made no ruling in regard to future motions to dismiss that the defendants might submit after the period of peak spawning season had passed.
Thereafter, a trial commenced before Judge Hale on the plaintiffs’ application for a temporary injunction. On April 20, 1999, the plaintiffs filed an application for a temporary restraining order to enjoin the restart of unit 2 until after the trial court had ruled on the application for a temporary injunction. Judge Hale granted the plaintiffs’ application for a temporary restraining order, pending completion and presentation of all the evidence. After thirteen days of testimony, Judge Hale denied the plaintiffs’ application for temporary and permanent injunctive relief, and dissolved the temporary restraining order.
On appeal, the plaintiffs claim that Judge Hale improperly concluded that the plaintiffs were not entitled: (1) to present rebuttal testimony; (2) to present summations and closing argument; and (3) to temporary
The defendants contend that the plaintiffs’ claims should have been dismissed by the trial court on jurisdictional grounds because the plaintiffs failed to exhaust their administrative remedies. Specifically, the defendants maintain that the remedies sought by the plaintiffs were available through the permit renewal proceeding pending before the department.
“It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain juris
“The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions.” (Internal quotation marks omitted.) Housing Authority v. Papandrea, supra, 222 Conn. 420; Concerned Citizens of Sterling v. Sterling, supra, 204 Conn. 557. “The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency ... in advance of possible judicial review.” (Internal quotation marks omitted.) Housing Authority v. Papandrea, supra, 420; Concerned Citizens of Sterling v. Sterling, supra, 556.
“The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions.” McKart v. United States, supra, 395 U.S. 193; Johnson v. Dept. of Public Health, 48 Conn. App. 102, 112, 710 A.2d 176 (1998). “[W]e have recognized such exceptions only infrequently and only for narrowly defined purposes”; (internal quotation marks omitted) Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993); Pet v. Dept. of Health Services, supra, 207 Conn. 353; such as when recourse to the administrative remedy would be futile or inadequate. In light of the policy behind the exhaustion doctrine, these exceptions are narrowly construed. See, e.g., Simko v. Ervin, 234 Conn. 498, 507, 661 A.2d 1018 (1995) (plaintiffs’ mere suspicion of bias on part of defendant, without more, not sufficient to excuse them, on ground of futility, from exhaustion requirement); O & G Industries Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995) (actual bias, rather than mere potential bias, of administrative body renders resort to administrative remedies futile); Polymer Resources, Ltd. v. Keeney, supra, 561 (mere conclusory assertion that agency will not reconsider decision does not excuse compliance, on basis of futility, with exhaustion requirement); Housing Authority v. Papandrea, supra, 222 Conn. 430 (fact
The plaintiffs recognize the exhaustion doctrine, but assert that they are excused from compliance because the injunctive relief they seek was not available through the administrative process. Specifically, they contend that the permit renewal proceeding was inadequate because: (1) it would not redress the environmental problems associated with the use of a once-through cooling system; and (2) it is unlikely that the department will conduct a hearing on the matter in the foreseeable future, thus causing further harm to the winter flounder population and the waters of Long Island Sound. Although we agree that a party is not required to exhaust an administrative remedy when that remedy necessarily will be futile, we disagree with the plaintiffs’ characterization of their administrative remedy in this case.
An administrative remedy is futile or inadequate if the agency is without authority to grant the relief requested. Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 625. The department in this case, however, had the authority to grant the plaintiffs’ requested relief during the permit renewal proceeding in which Fish Unlimited had intervened.
First, pursuant to § 22a-430 (a),
Second, General Statutes § 22a-7
The plaintiffs also contend that the permit renewal proceeding is inadequate because it is unlikely that the
The plaintiffs, at oral argument before this court, acknowledged that they could have intervened in the defendants’ earlier permit renewal proceedings before the department. They claim, however, that it would have been futile to pursue that option because the department would have denied the relief requested. Specifically, the plaintiffs claim that, as a result of the “close coordination” between the department and the defendants, the department is biased in favor of granting the defendants’ permit renewal application.
In the present case, by failing to exhaust their administrative remedies, the plaintiffs, like the plaintiff in Lacroix, deprived the department of the opportunity to review a matter within its responsibility and exper
We conclude that the plaintiffs have failed to exhaust their administrative remedies and that their failure to do so was not excused by any exception to the exhaustion requirement. The trial court, therefore, did not have subject matter jurisdiction to entertain the plaintiffs’ application for injunctive relief.
The judgment is vacated and the case is remanded to the trial court with direction to render judgment dismissing the action.
In this opinion the other justices concurred.
The plaintiffs in this case are: Fish Unlimited, a national clean water fisheries conservation organization based in Shelter Island, New York, with a satellite office in Waterford, Connecticut; three environmental interest groups, namely, Don’t Waste Connecticut, based in New Haven, Connecticut, STAR Foundation, based in East Hampton, New York, and North Fork Environmental Council, Inc., based in Mattituck, New York; and Fred Thiele, a New York State assemblyman, of Sag Harbor, New York.
Northeast Utilities Service Company owns and operates three nuclear generating units that comprise the Millstone Nuclear Power Generating Station in Waterford, hereinafter referred to as unit 1, unit 2 and unit 3. Northeast Utilities Service Company is the parent corporation of the other defendant in this case, Northeast Nuclear Energy Company, which is involved in the management and operation of units 1, 2 and 3.
Unit 3 previously had been shut down for safety violations as well. The defendants later, however, received approval to restart unit 3 in June, 1998.
General Statutes § 22a-430 provides in relevant part: “Permit for new discharge. Regulations. Renewal. Special category permits or approvals. Limited delegation. General permits, (a) No person or municipality shall initiate, create, originate or maintain any discharge of water, substance or material into the waters of the state without a permit for such discharge issued by the commissioner. Any person who initiated, created or originated a discharge prior to May 1, 1967, and any municipality which initiated, created or originated a discharge prior to April 10, 1973, for which a permit has not been issued pursuant to this section, shall submit an application for a permit for such discharge on or before July 1, 1987. Application for a permit shall be on a form prescribed by the commissioner, shall include such information as the commissioner may require and shall be accompanied by a fee of twenty-five per cent more than the amount established in regulations in effect on July 1, 1990. On and after July 1, 1991, such fees shall be as prescribed by regulations adopted by the commissioner in accordance with chapter 54. The commissioner shall not issue or renew a permit unless such issuance or renewal is consistent with the provisions of the federal Clean Water Act (33 USC 1251 et seq.). . . .”
Although, pursuant to 33 U.S.C. § 1251, these permits are federal permits issued in accordance with the Clean Water Act, the Administrator of the United States Environmental Protection Agency has delegated authority to the department to administer the permit program for Connecticut.
Title 33 of the United States Code, § 1326, provides in relevant part: “(a) . . . [WJhenever the owner or operator of any such source, after opportunity for public hearing, can demonstrate to the satisfaction of the Administrator (or, if appropriate, the State) that any effluent limitation proposed for the control of the thermal component of any discharge from such source will require effluent limitations more stringent than necessary to assure the projection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made, the Administrator (or, if appropriate, the State) may impose an effluent limitation under such sections for such plant, with respect to the thermal component of such discharge (taking into account the interaction of such thermal component with other pollutants), that will assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on that body of water.
“(b) . . . Any standard . . . applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. . . .”
General Statutes § 22a-430 (c) provides: “The permits issued pursuant to this section shall be for a period not to exceed five years, except that any such permit shall be subject to the provisions of section 22a-431. Such permits: (1) Shall specify the manner, nature and volume of discharge; (2) shall require proper operation and maintenance of any pollution abatement facility required by such permit; (3) may be renewable for periods not to exceed five years each in accordance with procedures and requirements established by the commissioner; and (4) shall be subject to such other requirements and restrictions as the commissioner deems necessary to comply fully with the purposes of this chapter, the federal Water Pollution Control Act and the federal Safe Drinking Water Act. An application for a renewal of a permit which expires after January 1, 1985, shall be filed with the commissioner at least one hundred eighty days before the expiration of such permit. The commissioner, at least thirty days before approving or denying an application for renewal of a permit, shall publish once in a newspaper having substantial circulation in the area affected, notice of (A) the name of the applicant; (B) the location, volume, frequency and nature
We are aware that subsequent to the filing of the renewal application in
General Statutes § 4-182 provides: “Matters involving licenses, (a) When the grant, denial or renewal of a license is required to be preceded by notice and opportunity for hearing, the provisions of this chapter concerning contested cases apply.
“(b) When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license shall not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court.
“(c) No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.”
Pursuant to General Statutes § 22a-19, the remaining plaintiffs may also intervene in the defendants’ permit renewal proceeding before the department. That section provides in relevant part: “Administrative proceedings, (a) In any administrative, 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.
The present appeal is the second of two cases involving the same or similar parties currently before this court. The other case is Fish Unlimited v. Northeast Utilities Service Co., Supreme Court Docket No. 16268, an action brought by Fish Unlimited and seven other plaintiffs pursuant to General Statutes § 22a-16 challenging the validity of the defendants’ NPDES permit.
General Statutes § 22a-16 provides: “Action for declaratory and equitable relief against unreasonable pollution. 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 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 protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state.”
Entrainment, occurs when marine organisms pass through the mesh screens through which intake water enters, and thereafter enter the cooling water system. While passing through the plant, these organisms may die before being discharged back into Long Island Sound.
Impingement occurs when juvenile and adult fish become caught against intake screens that protect the cooling system from drawing in flotsam and debris. Fish that become impinged are washed off intake screens by high pressure sprays and may die in the process.
General Statutes § 22a-17 provides: “Defense. Appointment of master or referee, (a) When the plaintiff in any such action has made a prima facie showing that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also prove, by way of an affirmative defense, that, considering all relevant surrounding circumstances and factors, there is no feasible and prudent alternative to the defendant’s conduct and that such conduct, is consistent with the reasonable requirements of the public health, safety and welfare. Except as to the aforesaid affirmative defense, nothing in this section shall be construed to affect the principles of burden of proof and weight of the evidence generally applicable in civil actions.
“(b) The court before which such action is brought may appoint a master or referee, who shall be a disinterested person and technically qualified, to take testimony and make a report to the court in the action. The costs of such appointment may be apportioned to the parties if the interests of justice require.”
On May 12, 1999, the plaintiffs moved for reargument and reconsideration seeking the opportunity to present rebuttal testimony. Their motion was denied.
In light of our conclusion that the trial court should have dismissed the plaintiffs’ complaint for lack of jurisdiction, we need not reach the merits of the claims raised by the plaintiffs on appeal.
As stated previously, the defendants also assert in the alternative that the plaintiffs’ claims should be dismissed under the doctrine of primary jurisdiction. The doctrine of primary jurisdiction, however, arises in cases in which a plaintiff, in the absence of a pending administrative proceeding, invokes the original jurisdiction of the court. Sharkey v. Stamford, 196 Conn. 253, 255-56, 492 A.2d 171 (1985). In this case, Fish Unlimited has intervened in the defendants’ permit renewal proceeding before the department, and the remaining plaintiffs are free to do the same. See footnote 8 of this opinion. Therefore, because an administrative action is pending, the primary jurisdiction doctrine does not apply.
See footnote 4 of this opinion.
See footnote 5 of this opinion.
General Statutes § 22a-7 provides in relevant part: “Cease and desist orders. Service. Hearings. Injunctions, (a) The commissioner, whenever he finds after investigation that any person is causing, engaging in or maintaining, or is about to cause, engage in or maintain, any condition or activity which, in his judgment, will result in or is likely to result in imminent and substantial damage to the environment, or to public health within the jurisdiction of the commissioner under the provisions of chapters 440, 441, 442,445,446a, 446c, 446d, 446j and 446k, or whenever he finds after investigation that there is a violation of the terms and conditions of a permit issued by him that is in his judgment substantial and continuous and it appears prejudicial to the interests of the people of the state to delay action until an opportunity for a hearing can be provided, or whenever he finds after investigation that any person is conducting, has conducted, or is about to conduct an activity which will result in or is likely to result in imminent and substantial damage to the environment, or to public health within the jurisdiction of the commissioner under the provisions of chapters 440, 441, 442, 445, 446a, 446c, 446d, 446j and 446k for which a license, as defined in section 4-166, is required under the provisions of chapter 440, 441, 442, 445, 446a, 446c, 446d, 446j or 446k without obtaining such license, may, without prior hearing, issue a cease and desist order in writing to such person to discontinue, abate or alleviate such condition or activity. . . .”
General Statutes § 22a-430 (b) provides: “The commissioner, at least thirty days before approving or denying a permit application for a discharge, shall publish once in a newspaper having a substantial circulation in the affected area notice of (1) the name of the applicant; (2) the location, volume, frequency and nature of the discharge; (3) the tentative decision on the application, and (4) additional information the commissioner deems necessary to comply with the federal Clean Water Act (33 USC 1251 et seq.). There shall be a comment period following the public notice during which
General Statutes § 22a-437 (a) provides: “Any person who or municipality which is aggrieved by a decision under subsection (b) or (c) of section 22a.-430, or by any order of the commissioner other than an order under section 22a-6b, to abate pollution may, after a hearing by the commissioner as provided for in section 22a-436 or subsection (b) or (c) of section 22a-430, appeal from the final determination of the commissioner based on such hearing to the Superior Court as provided in chapter 54. Such appeal shall have precedence in the order of trial as provided in section 52-192.”