Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council

• Decision Date: 26 June 1990
• Docket Number: No. 13920,13920
• Citation: 576 A.2d 510,215 Conn. 474
• Court: Connecticut Supreme Court
• Parties: , 21 Envtl. L. Rep. 20,039 CONCERNED CITIZENS OF STERLING, INC., et al. v. CONNECTICUT SITING COUNCIL et al.

Page 510

576 A.2d 510

215 Conn. 474, 21 Envtl. L. Rep. 20,039

CONCERNED CITIZENS OF STERLING, INC., et al. v. CONNECTICUT SITING COUNCIL et al.

No. 13920.

Supreme Court of Connecticut.

Argued May 4, 1990.

Decided June 26, 1990.

Kathleen Eldergill, Manchester, for appellants (plaintiffs).

Phyllis E. Lemell, Asst. Atty. Gen., with whom, on the brief, was Clarine Nardi Riddle, Atty. Gen., for appellee (named defendant).

Alan M. Kosloff, with whom, on the brief, was Suzanne M. Batchelor, Farmington, for appellee (defendant Exeter Energy Ltd. Partnership).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.

PETERS, Chief Justice.

This administrative appeal principally challenges the statutory and constitutional propriety of the procedures underlying the decision of the defendant Connecticut Siting Council (Council) to grant a certificate of environmental compatibility and public need to the defendant Exeter Energy Limited Partnership (Exeter). ¹ The trial court, after a hearing, rejected the plaintiffs' ² substantive, procedural, constitutional and evidentiary challenges to the Council's decision and dismissed the plaintiffs' appeal. The plaintiffs filed a further appeal to the Appellate Court, which we transferred to this court in accordance with Practice Book § 4023. We affirm the trial court's dismissal of the plaintiffs' appeal.

The essential facts are undisputed. Exeter proposes to build a plant that will burn waste tires in order to generate electricity and a number of other marketable byproducts. The department of public utility control has approved a twenty-five year contract for the sale of the electricity to Connecticut Light and Power Company. In accordance with General Statutes §§ 16-50k and 16-50p, Exeter applied to the Council for a certificate of environmental compatibility and public need to affirm the propriety of the proposed location of Exeter's plant in Sterling.

Exeter applied for certification on July 31, 1987, and gave public notice of its application in the Norwich Bulletin on July 30 and 31, 1987. The Norwich Bulletin is a newspaper of general circulation in the municipality of Sterling, where the facility is proposed to be located. Exeter served a copy of its application on each person, agency, commission, and municipal body specified in General Statutes § 16-50l (b). The Norwich Bulletin published notices on September 15 and 30, 1987, that the Council had scheduled a public hearing on Exeter's application for November 18, 1987. The Council provided mailed notice of the public hearing to those listed in § 16-50l. Public hearings were held in Sterling on November 18 and 19, 1987. Additional notices of subsequent public hearings, held on December 23, 1987, and February 9, 1988, were published in the Norwich Bulletin on December 2, 1987, and in the Providence Journal on December 7, 1987.

The location of Exeter's proposed facility in Sterling is approximately two miles from the Rhode Island border, and about five miles from the Scituate Reservoir watershed, which provides water for 65 percent of the population of Rhode Island. A number of Rhode Island residents, including some of the present plaintiffs, were allowed to intervene and ultimately were accorded party status.

Although some of the plaintiffs requested additional time to prepare and to be heard, the Council denied all requests for further hearings beyond February 9, 1988, and refused to defer its announced schedule for its decision on the application. The Council's denial of further continuances was premised in part on its statutory obligation to rule on Exeter's application by May, 1988.

The Council issued Exeter the certificate that it sought on May 6, 1988. The Council made extensive findings of fact to support its conclusions that there was a public need for the electricity that would be produced by the facility and that the site proposed for the facility would not have a significant deleterious effect on the health and safety of Connecticut and Rhode Island residents. In summarizing its environmental findings, the Council stated that "the effects associated with the construction and operation of the facility, including effects on the natural environment; ecological balance; public health and safety; scenic; historic and recreation values; forests and parks; air and water purity; and fish and wildlife are not significant either alone or cumulatively with other effects, are not in conflict with the policies of the state concerning such effects, and not sufficient reason to deny the application, and therefore, the Council will issue a Certificate for the Exeter waste tires to energy facility."

The plaintiffs' administrative appeal to the Superior Court mounted a broad gauged attack on the Council's decision in favor of Exeter. The trial court, despite expressed reservations about whether some of the plaintiffs had demonstrated the prerequisite aggrievement to pursue an administrative appeal, considered all of the issues on their merits and ruled in favor of the defendants. It concluded that the voluminous record of the proceedings before the Council contained substantial evidence to support the Council's detailed findings and opinion. It rejected the plaintiffs' statutory and constitutional contentions about the adequacy of the notices published with regard to Exeter's application. Finally, it determined that the Council had not substantially impaired or prejudiced the plaintiffs' rights to cross examine adverse witnesses or challenge expert findings. The trial court accordingly dismissed the plaintiffs' appeal.

In their present appeal, the plaintiffs have pursued four issues. In addition to their disagreement with the trial court's reservations about the aggrievement of some of the plaintiffs, they maintain that the trial court should have found that the proceedings before the Council were fatally flawed in three respects: (1) noncompliance with the statutory notice of hearing requirements prescribed by General Statutes §§ 16-50l, 16-50m and 4-177; (2) violation of their constitutional rights to procedural due process because of inadequate notice, denial of continuances, and impaired opportunity to participate in the hearing process; and (3) improper reliance by the Council on expert findings not subjected to challenge by cross-examination. We decline to address the issue of aggrievement ³ and conclude, on the merits of the three remaining issues, that the judgment of the trial court should be sustained.

I

In their claim of statutory impropriety, the plaintiffs maintain that the notice published by the defendants failed to comply with the requirements of General Statutes §§ 16-50l, 16-50m, and 4-177 ⁴ and therefore deprived the Council of jurisdiction to consider Exeter's certificate application. The plaintiffs do not contest the timeliness or the sufficiency of the content of the notice published in the Norwich Bulletin. They contend, however, that Sterling's proximity to Rhode Island required the defendants to publish notice in that state as well. Because the Council held two days of hearings before notice was published in the state of Rhode Island, the plaintiffs assert that the Council's proceedings were invalid.

The trial court addressed this issue in its decision on the plaintiffs' motion for articulation, wherein it stated: "The defendants did publish notice in the state of Rhode Island on December 3, 1987. They were not required to do so. [T]he defendants complied with the notice requirements of the statutes cited by the plaintiff." We agree.

The plaintiffs' argument for publication of notice in Rhode Island finds no support in the express language of the relevant provisions of the Public Utility Environmental Standards Act, General Statutes §§ 16-50g through 16-50z. Of the sections to which the plaintiffs allude, only § 16-50l specifically addresses the issue of who is entitled to public notice of proceedings concerning a certificate of environmental compatibility and public need. That section does not avail the plaintiffs, because it provides, in subsection (b), that an applicant has a duty to give notice to members of the general public in "[e]ach municipality in which any portion of such facility is to be located, both as primarily proposed and in the alternative locations listed [in the application]." See also Regs., Conn. State Agencies § 16-50l -1(e). The Rhode Island plaintiffs are not entitled to public notice under this section.

The other provision on which the plaintiffs principally rely is § 16-50m(c), which requires the Council itself to give public notice of the date and location of its hearings by "general notice to the public." See also Regs., Conn. State Agencies § 16-50j-21. By reasonable implication, the object of the Council's notice must be the same as that of the applicant's notice, since § 16-50m(c), in the preceding sentence, incorporates § 16-50l by reference. "It is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling." Meriden v. Board of Tax Review, 161 Conn. 396, 401-402, 288 A.2d 435 (1971). We are obligated, furthermore, to read statutes together when they relate to the same subject matter. Felia v. Westport, 214 Conn. 181, 187, 571 A.2d 89 (1990); In re Ralph M., 211 Conn. 289, 304-305, 559 A.2d 179 (1989). Read together, §§ 16-50m(c) and 16-50l (b) manifest the legislature's intention that the Council, like certificate applicants, is only required to give public notice to the members of the general public who live in the municipality where the proposed plant is to be built and operated.

Nothing in the general "reasonable notice" requirement contained in the Uniform Administrative Procedure Act, § 4-177, displaces the specific instructions for public notice contained in §§ 16-50l and 16-50m. Textuall...