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Burton v. Commissioner of Environmental Protection

Supreme Court of Connecticut

December 13, 2016

NANCY BURTON
v.
COMMISSIONER OFENVIRONMENTAL PROTECTION ET AL.

          Argued Date October 18, 2016.

          Nancy Burton, self-represented, the appellant (plaintiff).

          Matthew I. Levine, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Michael W. Lynch, assistant attorney general, for the appellee (named defendant).

          Elizabeth C. Barton, with whom were Harold M. Blinderman and, on the brief, Michael L. Miller, for the appellee (defendant Dominion Nuclear Connecticut, Inc.).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js. [*]

          ROGERS, C. J.

         The issue that we must resolve in this appeal is whether the trial court properly dismissed the complaint claiming a violation of the Connecticut Environmental Protection Act of 1971 (act), General Statutes § 22a-14 et seq., on the ground of mootness. The plaintiff, Nancy Burton, brought this action against the defendants, the Commissioner of Environmental Protection (commissioner) and Dominion Nuclear Connecticut, Inc. (Dominion), claiming that the operation of the Millstone Nuclear Power Station (Millstone), which is owned and operated by Dominion, is causing unreasonable pollution of the waters of the state in violation of the act. Thereafter, the defendants filed motions to dismiss the complaint on the ground that the plaintiff lacked standing, which the trial court granted. The plaintiff appealed from the judgment of dismissal and, in Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 792-93, 970 A.2d 640 (2009) (Burton I), this court reversed the judgment of dismissal. We concluded that the plaintiff had standing to bring her action under General Statutes § 22a-16[1]because she had alleged facts that would support inferences that: (1) unreasonable pollution, impairment or destruction of a natural resource would probably result from Millstone's operations; id., 804; and (2) pursuant to General Statutes § 22a-20, [2] the pending administrative permit renewal proceeding for Millstone's operation was inadequate to protect the rights recognized by the act because the hearing officer and the Department of Environmental Protection[3] (department) had not conducted the proceeding fairly and impartially. Id., 812. As the remedy, we ordered that the trial court conduct a hearing to determine whether the pending administrative proceeding was inadequate to protect the rights recognized by the act. Our decision in Burton I was officially released on June 2, 2009. On September 1, 2010, the administrative proceeding terminated when the commissioner issued a renewal permit for Millstone. Thereafter, the defendants filed separate motions to dismiss the plaintiff's action, contending that, because no hearing on the adequacy of the permit renewal proceeding had been conducted pursuant to this court's order in Burton I, and because the permit renewal proceeding had terminated, the plaintiff's action was moot. The trial court granted the motions to dismiss, and this appeal followed.[4] We reverse the judgment of the trial court.

         The following undisputed facts are set forth in our opinion in Burton I. ‘‘Millstone is an electric generating facility that is located in Waterford and powered by two nuclear power generating units. During operation, Millstone withdraws water from Niantic Bay to cool the generating units and then discharges the water into the Long Island Sound. These activities are authorized by a permit (discharge permit) issued by the [department] pursuant to 33 U.S.C. § 1342 and General Statutes [Rev. to 2007] § 22a-430. The department originally issued the discharge permit in 1992 to Dominion's predecessor, Northeast Nuclear Energy Company (Northeast). On June 13, 1997, Northeast submitted to the department an application for renewal of the discharge permit. After Dominion purchased Millstone on March 31, 2001, the department approved the transfer of permits and authorizations for the operation of the facility from Northeast to Dominion, including an emergency authorization that the department had issued pursuant to General Statutes § 22a-6k. The discharge permit remained in effect pending disposition of the renewal application pursuant to General Statutes [§] 4-182 (b) and [General Statutes (Rev. to 2007) §] 22a-430 (c).

         ‘‘In August 2006, the department issued its tentative draft decision to renew the discharge permit.'' (Footnotes omitted.) Id., 793-94. Thereafter, the plaintiff brought the present action alleging that Millstone's operation was causing harm to the environment in a variety of ways, that the hearing officer assigned to the permit renewal proceeding had a conflict of interest and was biased, and that the department had prejudged the permit renewal application. Id., 796. The defendants filed motions to dismiss the action for lack of standing. Id. The trial court, treating the plaintiff's action as having been brought pursuant to § 22a-16 and General Statutes (Rev. to 2007) § 22a-19 (a), [5] concluded that the plaintiff lacked standing under those statutory provisions because the conduct that the plaintiff alleged arose out of a permitting proceeding. Id., 797. Accordingly, the trial court dismissed the plaintiff's complaint. Id.

         The plaintiff appealed from the judgment of dismissal to this court. Id. We concluded that, because ‘‘the plaintiff's complaint adequately sets forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from Millstone's operation, '' she had standing to bring her complaint under § 22a-16. Id., 804. Responding to the defendants' claim that the plaintiff lacked standing because her claims were premised entirely on alleged flaws in the permitting process, we stated that ‘‘the mere fact the conduct comes within the scope of a statutory permitting scheme does not preclude a claim under the act if, as in the present case, the plaintiff makes a colorable claim that the conduct will cause unreasonable pollution.'' Id., 807.

         We then addressed the issue of the appropriate remedy on remand. We stated that, ‘‘[if] the trial court determines that the plaintiff has not established that the hearing officer is biased or the department has prejudged the permit renewal application and that the permit renewal proceeding is adequate to protect the rights recognized by the act, the court then will have the discretion to stay this action pending completion of the permit renewal proceeding. See Waterbury v. Washington, [260 Conn. 506');">260 Conn. 506, 546, 800 A.2d 1102 (2002)] (‘under the . . . doctrine of primary jurisdiction, which is embodied by [General Statutes] § 22a-18 of [the act], the court has discretion, and in certain cases should refer the case, or certain aspects of it, to the administrative agency, yet retain jurisdiction for further action, if appropriate, under that section'). If, on the other hand, the trial court determines that the permit renewal proceeding is inadequate to safeguard the rights recognized by the act, the court may stay those proceedings and craft orders to ensure that those rights are adequately protected. We leave the scope of any such orders to the informed discretion of the trial court.'' Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 813.

         Our decision in Burton I was officially released on June 2, 2009. The plaintiff, having received an advance copy of the decision, filed a motion to stay the permit renewal proceeding on May 26, 2009. The commissioner then requested that the trial court schedule a status conference in the present case. On June 18, 2009, after the trial court, Aurigemma, J., had granted the request for a status conference, the plaintiff filed a second motion to stay the permit renewal proceeding, which the trial court, Elgo, J., denied. On July 29, 2009, the trial court, Graham, J., conducted the status conference. Because Judge Graham had previously worked with the attorney who represented Dominion, the plaintiff requested that he recuse himself from the matter. Judge Graham denied the request to recuse himself, but indicated that he would continue the status conference so that Judge Aurigemma, who had originally scheduled the status conference and who was unavailable because she was presiding over the trial of another case, could conduct it. Judge Graham then indicated that he would inform Judge Aurigemma that he had continued the status conference and that it was his expectation that she would reschedule it for some time in August, 2009. For reasons that are unclear from the record, the status conference was never rescheduled.

         Meanwhile, the plaintiff, who, in November, 2006, had intervened in the permit renewal proceeding pursuant to § 22a-19, continued to participate in that proceeding. An administrative hearing on the permit renewal was conducted over the course of eighteen days in January and February of 2009, at which the plaintiff cross-examined witnesses, offered exhibits and made objections. On February 17, 2010, the hearing officers issued a proposed final decision and a draft permit. The plaintiff filed exceptions to the proposed final decision and, on May 24, 2010, participated in a hearing before Deputy Commissioner Susan Frechette, who was charged with issuing a final decision on the permit renewal. On September 1, 2010, Frechette issued the renewal permit. Thereafter, the plaintiff filed a timely administrative appeal from the permit renewal.

         In December, 2011, the trial court, Robaina, J., sua sponte, scheduled a status conference in the present case for March 6, 2012. The trial court, Miller, J., subsequently granted the plaintiff's request for a continuance and, ultimately, Judge Robaina held the status conference on March 15, 2012. The plaintiff indicated at the status conference that she intended to file discovery motions within thirty days ‘‘in order to begin to meet [her] burden to establish . . . that the hearing officer is biased, and/or that the department prejudged the permit renewal application and therefore the permit renewal proceeding is inadequate to protect the rights recognized by the [act] . . . .'' The defendants contended that the action should be consolidated with the ...


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