Polymer Resources, Ltd. v. Keeney
| Decision Date | 03 August 1993 |
| Docket Number | No. 11668,11668 |
| Citation | 32 Conn.App. 340,629 A.2d 447 |
| Parties | POLYMER RESOURCES, LTD., et al. v. Timothy R.E. KEENEY, Commissioner of Environmental Protection. |
| Court | Connecticut Court of Appeals |
Charles L. Howard, with whom, on the brief, were William O. Riiska and Gregory T. D'Auria, Hartford, for appellants Farmington Residents for a Clean Environment.
Christopher J. Smith, Bridgeport, with whom, on the brief, were Stuart A. Epstein, Stamford, and Stewart I. Edelstein, Bridgeport, for appellees (plaintiff).
Kimberly P. Massicotte, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen. and Joseph Rubin, Robert B. Teitelman and Grace M. Dodier, Asst. Attys. Gen., for appellees (defendants).
Before DUPONT, C.J., and HEIMAN and SCHALLER, JJ.
Farmington Residents for a Clean Environment (FRCE) 1 appeals from the trial court's denial of its motion to be granted status as a party in this action brought by the named plaintiff Polymer Resources, Ltd. (Polymer), 2 against the commissioner of environmental protection. In its complaint, Polymer sought injunctive relief arising out of a claim that the defendant was attempting to impose conditions on the operation of Polymer's manufacturing plant in excess of those imposed in a decision and order rendered by the defendant, and, further, that the defendant, acting under color of state law, violated Polymer's rights, privileges and immunities as secured by the constitution and laws of the state of Connecticut. 3
On appeal, FRCE posits that the trial court acted improperly (1) in denying its motion to intervene pursuant to General Statutes § 22a-19(a), (2) in denying its motion to intervene as of right, and (3) in denying its motion to intervene under permissive standards. We affirm the trial court's denial of FRCE's motion for party status.
The following facts are necessary to a resolution of this appeal. Polymer operates a manufacturing facility in the town of Farmington at which it produces plastic pellets. This facility has been the subject of numerous complaints based on claims of air pollution by emission of allegedly noxious odors.
On February 3, 1992, the defendant issued administrative compliance order No. 1222 requiring Polymer to cease emissions from its facility. The defendant claimed that the emissions caused or contributed to the offensive odor. The commissioner ordered Polymer to prepare a report and to perform remedial actions to abate the odors. 4
On February 13, 1992, Polymer's representatives met with the commissioner's representative and agreed on a remedial plan in accordance with the administrative compliance order. The plan provided that Polymer would install additional air pollution control equipment, conduct stack testing, and submit reports to the commissioner. Polymer ordered and installed additional air pollution control equipment. To install the equipment, Polymer ceased operations at its facility on April 9, 1992.
On that same day, the commissioner issued administrative compliance order No. 1270 compelling Polymer to cease operations at its facility, to install the agreed on air pollution control equipment, to submit a plan for stack testing, and to submit a report to the commissioner certifying that the air emissions from the facility would not result in imminent and substantial damage to the public health. The order provided that Polymer shall not be in full compliance with the order until all actions required by the order are completed and Polymer otherwise completely and permanently ceases the emissions of all substances that are likely to result in imminent and substantial damage to public health. Order No. 1270 also provided that the commissioner may approve of the document, report, or other action as submitted or performed with such conditions or modifications as the commissioner deems necessary to carry out the purposes of the order.
On April 16, 1992, an administrative hearing officer commenced a hearing pertaining to order No. 1270. Both the town of Farmington and FRCE were permitted to intervene in this administrative hearing. Polymer consented to abide by the terms and conditions of the commissioner's administrative compliance order No. 1270 and these terms and conditions were incorporated into the administrative hearing officer's May 1, 1992 decision.
On May 4, 1992, Polymer submitted a proposed final stack testing plan to the commissioner. The commissioner did not act on the plan, but requested that an independent third party expert review Polymer's plan. He recommended two experts, one of whom Polymer employed to review its plan.
On May 12, 1992, the third party expert modified Polymer's proposed final stack testing plan and submitted it to the commissioner.
On May 14, 1992, the commissioner imposed additional conditions beyond the scope of the administrative hearing officer's final decision and the commissioner's compliance order No. 1270.
Pursuant to the modified stack testing plan, Polymer conducted tests and, on June 22, 1992, submitted a report to the commissioner certifying that air emissions from its facility would not result in imminent and substantial damage to the public health. On June 25, 1992, the commissioner ordered Polymer to cease operations pertaining to the stack testing plan because of the detection of a mild odor in the emission stack outlet. On June 29, 1992, the third party expert submitted its report to the commissioner analyzing the results of its plan for stack testing at Polymer's facility.
On July 2, 1992, the commissioner attempted to impose additional requirements of precontrol stack testing as a condition to Polymer's resumption of stack testing. 5 He justified these conditions by asserting that compliance order No. 1270 contained a provision that Polymer conduct stack testing in a manner approved by him.
In a two count verified complaint, Polymer asserted that the commissioner's actions were "arbitrary, capricious, unreasonable, in excess of his authority, and constitute[d] bad faith and an abuse of discretion" and that the commissioner, acting under the color of state law, had "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." Polymer sought by way of relief attorney's fees and a temporary and permanent injunction enjoining the commissioner from prohibiting or limiting Polymer's operation at its facility under (1) the commissioner's order No. 1270, (2) the May 1, 1992 terms of the final decision of the administrative hearing officer, (3) the terms and conditions of the commissioner's May 14, 1992 letter to Polymer, (4) terms and conditions of the commissioner's June 25, 1992 letter to Polymer, (5) and the terms and conditions of the commissioner's July 2, 1992 letter to Polymer. It also sought a temporary and permanent injunction restraining the commissioner from compelling Polymer to perform precontrol testing at its facility.
On August 17, 1992, FRCE made a motion for permission to intervene as a matter of statutory or common law right or permissively as a party to the case. 6 It filed a verified pleading regarding intervention and a memorandum in support of its motion for permission to intervene. Polymer filed an objection to FRCE's motion and a memorandum in support of its objection. The court orally denied FRCE's motion. 7 The court found that the attorney general could adequately protect FRCE's interests. 8 It also found that FRCE did not meet the standards for intervention pursuant to General Statutes § 22a-19(a), intervention as of right, and permissive intervention. This appeal followed.
FRCE asserts that the trial court improperly denied its motion to intervene pursuant to General Statutes § 22a-19(a). FRCE posits that the trial court incorrectly found that it had discretion under § 22a-19(a) to deny FRCE's motion to intervene. FRCE claims that it has an absolute right to intervene on the filing of a verified pleading and complying with the provisions of § 22a-19(a). We do not agree that the trial court improperly denied FRCE's motion to intervene under this statute.
General Statutes § 22a-19 provides: "(a) In any administrative, licensing or other proceeding, 9 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." (Emphasis added.) Pursuant to this statute, a party may intervene in an administrative hearing or judicial review thereof upon filing a verified pleading. The pleading must assert that a proposed activity " '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.' " Burton v. Dillman, 27 Conn.App. 479, 480, 607 A.2d 447, cert. denied, 223 Conn. 904, 610 A.2d 178 (1992); Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989). Intervention in an administrative proceeding or judicial review of that proceeding is for the limited purpose of raising environmental issues. Red Hill Coalition, Inc. v. Conservation Commission, supra; Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 490, 400 A.2d 726 (1978); Burton v. Dillman, supra,...
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