227 Conn. 545 | Conn. | 1993
The dispositive issue in this appeal is whether the trial court had subject matter jurisdiction to entertain the application of the plaintiffs, Polymer Resources, Ltd., and Leslie M. Klein
Polymer processes plastic pellets at its thermoplastics manufacturing facility in Farmington. On April 9, 1992, after investigation of the gaseous emissions resulting from Polymer’s manufacturing processes, the commissioner issued an ex parte cease and desist order (order) against Polymer pursuant to General Statutes § 22a-7.
The order directed Polymer to cease any manufacturing process that resulted in the emission of the specified substances, and prohibited Polymer from resuming such processing until it had: (1) installed pollution control equipment that adequately controlled emissions from its manufacturing processes; (2) conducted stack testing of its emissions in a manner and for a length of time approved by the commissioner; and (3) submitted a detailed written report for the commissioner’s approval certifying that air emissions from the site would not result in imminent and substantial damage to the public health. The order also expressly authorized the commissioner to approve or disapprove any “document, report or other action” concerning the control of emissions into the air at the site, or to approve any such document, report or action “with such conditions or modifications as the commissioner deems necessary to carry out the purposes” of the order. The order further required Polymer, upon notification by the commissioner that any document, report or action was deficient, to correct that deficiency to the satisfaction of the commissioner.
Polymer ceased its plastic processing operations upon receipt of the order. On April 16, 1992, the commis
By letter dated May 14, 1992, the commissioner approved, with modifications, Polymer’s proposed two phase stack testing plan. The plan provided that upon completion of the first phase of testing, which was to last a total of forty days, Polymer was to cease its manufacturing operations and to submit a plan for second phase testing. Upon approval by the commissioner of a second phase plan, Polymer would be authorized
On May 18,1992, Polymer resumed its manufacturing operations in a manner consistent with the terms of the first phase testing plan
Several days after it had received the commissioner’s letter of July 2, 1992, Polymer submitted additional reports to the commissioner. Polymer contended that precontrol stack testing was unnecessary and unreasonably costly, that resumption of the manufacturing process would not pose any risk to the public health,
Subsequently, a hearing was held on Polymer’s application for a temporary injunction, which had been filed by Polymer with its application for a temporary restraining order. After thirty-three days of testimony, the trial court, Nigro, J., denied the commissioner’s renewed motion to dismiss for failure to exhaust available administrative remedies, and granted Polymer’s application in part. Although it acknowledged that the testimony produced “a conflict among distinguished experts who have each presented impressive credentials,” the court found that the commissioner’s require
In this court, the commissioner claims that the trial court lacked subject matter jurisdiction to entertain Polymer’s application for injunctive relief because Polymer had improperly failed to exhaust its administrative remedies. The commissioner claims specifically that
I
“ ‘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 jurisdiction to act in the matter.’ ” LaCroix v. Board of Education, 199 Conn. 70, 83-84, 505 A.2d 1233 (1986), quoting Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979). Furthermore, “[bjecause the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the plaintiffs’claim. . . . [W]henever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to its previous rulings.” (Citations omitted; internal quotation marks omitted.) Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987).
Polymer argues that it was not required to seek a declaratory ruling pursuant to § 4-176 (a) because the commissioner lacked statutory authority to direct Poly
II
Polymer next claims that it need not have sought a declaratory ruling on the issue of precontrol stack test
The final order, cast in broad terms consistent with the commissioner’s broad statutory mandate in matters of environmental protection,
Indeed, the final order required Polymer to submit a written stack testing plan “to conduct stack testing in a manner and for a length of time approved by the commissioner. The plan shall include stack testing of the processing of all substances which [Polymer] intends or desires to process at the site in the future.” (Emphasis added.) This sweeping language, which Polymer chose not to contest, granted the commissioner broad authority to require stack testing of a method and duration that, in the commissioner’s judgment, would have reduced the risk of any damage to the environment. We agree with the commissioner, therefore, that he reasonably could have interpreted the term “stack testing” in the final order to include the testing of emissions before those emissions had entered Polymer’s pollution control system in the stack.
Polymer contends that a different conclusion is required because the hearing officer determined that the technical evidence presented at the hearing on the cease and desist order did not warrant the imposition of precontrol stack testing. The hearing was truncated, however, due to Polymer’s decision, announced during the hearing and before the commissioner had concluded the presentation of his evidence, to abide by the broad terms of the commissioner’s order. Polymer’s decision not to contest the terms of the order rendered
III
Polymer finally contends that it should be excused for failing to exhaust its administrative remedies because it has satisfied several exceptions to the exhaustion rule. “There are some exceptions to the exhaustion doctrine, ‘although we have recognized such exceptions only infrequently and only for narrowly defined purposes.’ ” Pet v. Department of Health Services, 207 Conn. 346, 353, 542 A.2d 672 (1988), quoting LaCroix v. Board of Education, supra, 79. We have recognized that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if: recourse to the administrative remedy would be futile or inadequate; Greenwich v. Liquor Control Commission, 191 Conn. 528, 541-42, 469 A.2d 382 (1983); the procedures followed by the administrative agency are constitutionally infirm; LaCroix v. Board of Education, supra; or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm. Pet v. Department of Health Services, supra, 370. We do not agree that Polymer’s failure to satisfy the exhaustion requirement falls into any of these recognized exceptions to that rule.
Polymer also contends that its claim of a constitutional violation by the commissioner exempted it from the exhaustion requirement. See Lacroix v. Board of Education, supra. However, “[s]imply bringing a constitutional challenge to an agency’s actions will not necessarily excuse a failure to follow an available statutory appeal process.” Id., 79. Moreover, “[d]irect adjudication even of constitutional claims is not warranted when the relief sought by a litigant might conceivably have been obtained through an alternative [statutory] procedure . . . which [the litigant] has chosen to ignore. . . .” (Internal quotation marks omitted.) Pet v. Department of Health Services, supra, 354. “[W]e continue to limit any judicial bypass of even colorable constitutional claims to instances of demonstrable futility in pursuing an available administrative remedy.” Id., 356.
Polymer alleges, without more, that the commissioner, “acting under color of state law, has deprived Polymer of its rights, privileges, and immunities secured by the Constitution and the laws of the State of Connecticut, including Polymer’s rights to due process and equal protection as afforded by the Constitution of the State of Connecticut.” Although Polymer’s complaint fails to explain more precisely the nature of the alleged constitutional violation, Polymer claims on appeal that the commissioner has violated its “right to pursue a lawful business.” We are not persuaded that Polymer’s conclusory assertion of such a constitutional claim is sufficiently clear and specific to exempt it from the exhaustion requirement in this case. Moreover, because the commissioner would have been required to seek to enforce the terms of the final order in the Superior Court pursuant to General Statutes § 22a-180
Polymer also asserts that it would have suffered irreparable harm if required to seek a declaratory ruling from the commissioner and that therefore it was entitled to an exception from the exhaustion rule. See id., 370; Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 98, 448 A.2d 210 (1982). Specifically, Polymer argues that the declaratory ruling process might have taken as long as 180 days to complete,
We conclude that Polymer failed to exhaust its administrative remedies and that its failure to do so was not excused by any exception to the exhaustion rule. The trial court, therefore, lacked subject matter jurisdiction to entertain Polymer’s application for injunctive relief.
The judgment is reversed and the case is remanded to the trial court with direction to render judgment dismissing the complaint.
In this opinion the other justices concurred.
Leslie M. Klein is the sole shareholder and chairman of the board of Polymer Resources, Ltd., a Connecticut corporation.
The chief justice granted the commissioner’s petition to appeal the order of the trial court to this court pursuant to General Statutes § 52-265a, which provides: “(a) Notwithstanding the provisions of sections 52-264 and 52-265, any party to an action who is aggrieved by an order or decision of the supe
“(b) The chief justice shall, within one week of receipt of the appeal, rule whether the issue involves a substantial public interest and whether delay may work a substantial injustice.
“(c) Upon certification by the chief justice that a substantial public interest is involved and that delay may work a substantial injustice, the trial judge shall immediately transmit a certificate of his decision, together with a proper finding of fact, to the chief justice, who shall thereupon call a special session of the supreme court for the purpose of an immediate hearing upon the appeal.
“(d) The chief justice may make orders to expedite such appeals, including orders specifying the manner in which the record on appeal may be prepared.”
“The ‘order or decision’ to which § 52-265a (a) refers need not be a final judgment. . . . Accordingly, this appeal is not jurisdictionally defective even though the [defendant is] appealing a temporary injunction, which, as an interlocutory order, would otherwise not be immediately appealable.” (Citation omitted.) Moskier v. Goodviow, 217 Conn. 303, 305 n. 3, 586 A.2d 557 (1991).
“[General Statutes] Sec. 22a-7. 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 sub
“(b) The commissioner shall serve any cease and desist order issued pursuant to this section in accordance with the provisions of section 52-57. The commissioner may also cause a copy of the order to be posted upon property which is the subject of the order, and no action for trespass shall lie for such posting. A cease and desist order shall be binding upon all persons against whom it is issued, their agents and any independent contractor engaged by such persons.
“(c) Upon receipt of such order such person shall immediately comply with such order. The commissioner shall, within ten days of the date of receipt of such order by all persons served with such order, hold a hearing to provide any such person an opportunity to be heard and show that such condition does not exist or such violation has not occurred or a license was not required or all required licenses were obtained. All briefs or legal memore nda to be presented in connection with such hearing shall be filed not later than ten days after such hearing. Such order shall remain in effect until fifteen days after the hearing within which time a new decision based on the hearing shall be made.
“(d) The attorney general, upon the request of the commissioner, may institute an action in the superior court for the judicial district of Hartford-New Britain at Hartford to enjoin any person from violating a cease and desist order issued pursuant to this section and to compel compliance with such order.”
The order identifies these substances as phenol, styrene, formaldehyde, acrolein, dibutylamine, triphenylphosphate, phenylether, 2,4,6 tribromophenal, and acrylonitrile.
Section 22a-174-l (a) (6) of the Regulations of Connecticut State Agencies provides: “ ‘Ambient air’ means that portion of the atmosphere external to buildings, to which the general public has access.”
The final order incorporated, inter alia, the following provisions of the cease and desist order: “B. . . . (3) [Polymer] shall not resume the processing of plastic pellets or any other process which results in the emission of the substances identified in paragraph A (3), except for stack testing . . . until and unless [Polymer] does all of the following: (a) Installs pollution control equipment which adequately controls emissions from the processes conducted at the site; (b) (i) Submits a plan in writing to the Commissioner, which is approved by the Commissioner, to conduct stack testing in a manner and for a length of time approved by the Commissioner. The plans shall include stack testing of the processing of all substances which [Polymer] intends or desires to process at the site in the future. [Polymer] may not process any other substances in the future without prior approved stack testing in accordance with this Order. The plan shall include provisions for the observation and review of any and all aspects of the stack testing by representatives of the Commissioner to the extent the Commissioner deems appropriate, (ii) Submits a report to the Commissioner, which is approved in writing by the Commissioner certifying that air emissions from the site will not result in imminent and substantial damage to the public health. The report shall include a detailed description of the basis for its conclusions. (4) [Polymer] shall not be in full compliance with this Order until all actions required by this Order are completed, and [Polymer] otherwise completely and permanently ceases the emission of all substances which will result in, or will likely result in imminent and substantial damage to public health, including all emissions of all substances identified in paragraph A (3) above. (5) If the Commissioner notifies [Polymer] that any document, report or other action is deficient, and does not approve it with conditions or modifications, it is deemed disapproved, and [Polymer] shall correct the deficien
“Precontrol stack testing” is the testing of emissions resulting from the manufacturing process before those emissions have entered the pollution control system. The pollution control system relevant to this appeal is that system located in the stack at Polymer’s plant.
The stack testing plan approved by the commissioner permitted Polymer to conduct its manufacturing operations for twelve hours each day. Prior to April 9,1992, Polymer had conducted such operations twenty-four hours a day. The commissioner ordered Polymer to reduce its hours of operation so that DEP personnel could monitor the emission control testing at the plant.
Polymer also requested that the commissioner approve certain modifications to the emission control testing procedures required by the May 14, 1992 letter. The commissioner approved some of Polymer’s requests and disapproved others.
On July 7, 1992, before the commissioner had completed his review of the reports to determine what, if any, modifications to the terms of his July 2,1992 letter would be acceptable, Polymer resumed its manufacturing operations and emissions testing program as authorized by the commissioner prior to July 2.
On August 12, 1992, the trial court, Dean, J., granted the commissioner’s motion to dismiss Polymer’s complaint for failure to serve the commissioner with a copy of the summons. Upon dismissal of the complaint, Polymer immediately filed a second complaint, identical to the first, as well as a second application for a temporary restraining order. The court granted that application for a temporary restraining order on August 12,1992. The commissioner moved to dismiss the second complaint alleging, inter alia, a lack of subject matter jurisdiction because Polymer had failed to exhaust its administrative remedies. The court denied that motion on August 17, 1992.
The court found that Polymer had incurred significant economic harm as a result of its reduction in operating hours: the loss of forty-two operating days due to shutdowns required by the commissioner; and the expense of consultants, experts and pollution control and testing equipment. The court found further that “[c]ompliance with the [commissioner’s requirements] might force [Polymer] out of business.”
The court concluded that “[t]he suggestion of the Commissioner that for any loss of business [Polymer] would have relief at law—to apply to the Connecticut Claims Commissioner for permission to sue the State for monetary damages is chimerical, or at least so unlikely as to be almost nonexistent.”
Polymer has not appealed the trial court’s partial denial of its application for injunctive relief to enjoin the commissioner from requiring further stack testing.
The trial court’s decision on Polymer’s application for a temporary injunction also provided, however, that the commissioner may “issue a cease and desist order . . . despite the partial injunction, whenever he reasonably deems there is an imminent and serious risk of injury to the public health because of processing or emissions at the plant.”
General Statutes § 4-176 (a) provides: “Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.”
The commissioner also claims that Polymer failed to exhaust its administrative remedies by not contesting the cease and desist order pursuant to General Statutes § 22a-7 (c); see footnote 3; and by failing to appeal the May 1,1992 final order to the Superior Court within forty-five days as authorized by General Statutes § 4-183. Polymer contends that it was not required either to contest the cease and desist order or to appeal the final order because neither order authorized the commissioner to require Polymer to conduct precontrol stack testing. Polymer further argues that it did not receive notice of the commissioner’s decision purporting to require precontrol stack testing until July 2,1992, several weeks after the date by which Polymer would have been required to file any appeal of the final order. We do not address these arguments because we conclude that Polymer failed to exhaust the administrative remedy available to it pursuant to General Statutes § 4-176 (a).
General Statutes § 4-181a, entitled “Contested Cases. Reconsideration. Modification,” provides in part: “(b) On a showing of changed conditions, the agency may reverse or modify the final decision, at any time, at the request of any person or on the agency’s own motion. The procedure set forth in this chapter for contested cases shall be applicable to any proceeding in which such reversal or modification of any final decision is to be considered. The party or parties who were the subject of the original final decision, or their successors, if known, and intervenors in the original contested case, shall be notified of the proceeding and shall be given the opportunity to participate in the proceeding. Any decision to reverse or modify a final decision shall make provision for the rights or privileges of any person who has been shown to have relied on such final decision.”
The commissioner also makes several claims concerning the trial court’s decision on Polymer’s application for a temporary injunction. We need not address these arguments, however, because we conclude that the trial court lacked subject matter jurisdiction to entertain Polymer’s application.
“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. . . . The doctrine . . . furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency . . . in advance of possible judicial review.” (Citation omitted; internal quotation marks omitted.) Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987). Moreover, resolution of the issues at the administrative level may render judicial review unnecessary. See Housing Authority v. Papandrea, 222 Conn. 414, 420-21, 610 A.2d 637 (1992).
General Statutes § 4-183 provides in relevant part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.” A declaratory ruling is a “final decision” under § 4-183. See General Statutes § 4-166 (3).
General Statutes § 22a-5 directs the commissioner to “carry out the environmental policies of the state” and vests in the commissioner “all powers necessary and convenient to faithfully discharge this duty.” Section 22a-5 also provides that the commissioner shall “(a) promote and coordinate management of water, land and air resources to assure their protection, enhancement and proper allocation and utilization . . . [and] (e) provide for the prevention and abatement of all water, land and air pollution including, but not limited to, that related to particulates, gases, dust, vapors, noise, radiation, odors, nutrients and cooled or heated liquids, gases and solids . . . .” The commissioner is further empowered to promulgate environmental standards and regulations to control and prohibit air pollution. See General Statutes §§ 22a-6 and 22a-174. The legislature, therefore, has vested in the commissioner broad authority and responsibility in matters of environmental protection.
See footnote 9. We also note that, prior to the granting of the application for a temporary restraining order on July 7, 1992, the parties were discussing possible modifications to the precontrol stack testing requirement set forth in the commissioner’s letter of July 2, 1992. See footnote 10. As a result of those discussions, and after a review of the reports submitted to him by Polymer, the commissioner notified Polymer by letter dated July 21,1992, that “[a]s I was prepared to do when I was served with your court papers, I grant your request to postpone pre-control stack testing as set forth in my letter of July 2, 1992, with . . . [certain] conditions, in order to allow my staff and the Department of Health Services time to review recent reports submitted, and to consider modifications of my precontrol stack testing requirements.” In a subsequent letter to Polymer, dated August 21,1992, the commissioner modified and explained his July 21, 1992 letter as follows: “Based on lengthy discussions with . . . your representatives, the Department of Health Services, my staff, and others, I have concluded that a form of pre-control stack testing is still necessary to meet the objectives of [the Ojease and Desist Order . . . and to provide the information necessary to conduct a reliable health risk assessment. However, I believe that certain changes to the July 2,1992 pre-control testing program are acceptable, and will produce the required information. If and when I am no longer restrained or otherwise prevented from doing so, I intend to modify my July 2, 1992 letter. If you have any questions about this matter, my staff is available to discuss them with you.”
General Statutes § 22a-180 (a) provides: “In addition to those penalties provided by section 22a-175, any person who violates any provision of this chapter, or any regulation, order or permit adopted or issued thereunder may be assessed a civil penalty by the court not to exceed twenty-five thousand dollars for each offense. Each violation shall be a separate and distinct offense and, in the case of a continuing violation, each day of continuance thereof shall be deemed to be a separate and distinct offense. The commissioner of environmental protection may request the attorney general to bring a civil action in the superior court for the judicial district of Hartford-New Britain at Hartford to have such assessment imposed by the court. In addition, the commissioner may request the attorney general to institute a civil action in the superior court for the judicial district of Hartford-New Britain at Hartford for injunctive relief to restrain any further violation of any provision of this chapter, or any regulation, order or permit adopted or issued thereunder. The superior court shall grant such relief upon notice and hearing. If two or more persons are responsible for a violation of any provision of this chapter, or any regulation, order or permit adopted or issued thereunder, such persons shall be jointly and severally liable.”
General Statutes § 4-176 provides in relevant part: “(e) Within sixty days after receipt of a petition for a declaratory ruling, an agency in writing shall: (1) Issue a ruling declaring the validity of a regulation or the
“(i) If an agency does not issue a declaratory ruling within one hundred eighty days after the filing of a petition therefor, or within such longer period as may be agreed by the parties, the agency shall be deemed to have decided not to issue such ruling.”
Polymer also could have sought authorization from the claims commissioner to sue the state for damages due to alleged improper conduct by the commissioner of environmental protection acting in his official capacity. See General Statutes § 4-141 et seq. The trial court concluded, however, that recourse to the claims commissioner did not constitute an adequate remedy at law. See footnote 13. We need not reach this issue and therefore decline to do so.