Polymer Resources, Ltd. v. Keeney

• Decision Date: 29 July 1993
• Docket Number: No. 14769,14769
• Court: Connecticut Supreme Court
• Parties: POLYMER RESOURCES, LTD., et al. v. Timothy R.E. KEENEY, Commissioner of Environmental Protection.

Page 1304

630 A.2d 1304

227 Conn. 545

POLYMER RESOURCES, LTD., et al. v. Timothy R.E. KEENEY, Commissioner of Environmental Protection.

No. 14769.

Supreme Court of Connecticut.

Argued June 9, 1993.

Decided July 29, 1993.

Richard Blumenthal, Atty. Gen., with whom were Joseph Rubin and Kimberly P. Massicotte, Asst. Attys. Gen., for the appellant (defendant).

Stewart I. Edelstein, with whom were Christopher J. Smith, Bridgeport, and, on the brief, Stuart A. Epstein, Stamford, for the appellees (plaintiffs).

Palmer S. McGee, Jr., and Dean M. Cordiano, Hartford, filed a brief for the town of Farmington et al. as amici curiae.

Before PETERS, C.J., and CALLAHAN, BERDON, KATZ and PALMER, JJ.

PALMER, Associate Justice.

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 ¹ (Polymer), for a temporary injunction restraining the defendant, Timothy R.E. Keeney, the commissioner of environmental protection (commissioner), from requiring Polymer to conduct certain emission control testing at its manufacturing facility in Farmington. The trial court concluded that it had jurisdiction over Polymer's application for injunctive relief and, after a hearing, granted that application in part. The commissioner sought and received permission to file an immediate expedited appeal ² from that portion of the trial court's order granting Polymer injunctive relief. The commissioner claims that the trial court lacked subject matter jurisdiction to entertain Polymer's application for a temporary injunction because Polymer had failed to exhaust its administrative remedies. We agree with the commissioner and therefore reverse the judgment of the trial court.

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. ³ In that order, the commissioner found that the manufacturing process employed by Polymer had resulted in the emission of certain substances ⁴ into the ambient air ⁵ that "can cause and are causing or are likely to cause damage to the health of persons in the vicinity of the site, including headaches, throat inflammation, nose irritation, exacerbations of chronic respiratory conditions including asthma and chronic obstructive pulmonary disease, and other respiratory or pulmonary diseases and symptoms," and that those emissions were "likely to result in imminent and substantial damage to the public health."

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 commissioner commenced a hearing pursuant to § 22a-7(c) concerning the issuance of the ex parte order. On April 27, 1992, however, after several days of testimony before the department of environmental protection (DEP) hearing officer, Polymer notified the commissioner that it would no longer contest the order and, although not conceding the underlying findings of the commissioner, would agree to be bound by the terms of the order. The commissioner agreed that Polymer's acceptance of the terms of the order obviated the need for any further testimony before the hearing officer. On May 1, 1992, the hearing officer, therefore, filed a final administrative decision and order (final order), which specifically incorporated the provisions of the April 9, 1992 order. ⁶ The final order also contained the hearing officer's finding that the "record lacks sufficient technical evidence to support imposition of an additional requirement for [precontrol]led stack testing." ⁷

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 to resume its manufacturing operations. The May 14, 1992 letter also directed Polymer to cease its manufacturing operations if any one of several events occurred, including the detection by DEP personnel of any odor emanating from the stack of Polymer's plant.

On May 18, 1992, Polymer resumed its manufacturing operations in a manner consistent with the terms of the first phase testing plan ⁸ and thereafter submitted reports to the commissioner as required by the final order. ⁹ By letter dated June 25, 1992, however, the commissioner ordered Polymer immediately to cease its manufacturing operations because on that date DEP personnel had detected an odor at the stack of Polymer's plant. The commissioner explained that the "presence of an odor is an indication that the control systems at the facility were not functioning properly, and were allowing substances which are likely to damage public health to escape into the air." In his June 25, 1992 letter, the commissioner invited Polymer to submit a report explaining the reason for the odor and a proposal to rectify the problem, "taking into consideration the apparent premature failure of the control systems, [and] consistent health complaints during the course of testing." The commissioner prohibited Polymer, however, from resuming its manufacturing operations and stack testing procedures until he had expressly authorized Polymer to do so.

Polymer ceased its manufacturing operations as directed and submitted a report to the commissioner, dated June 29, 1992, that sought to allay the commissioner's concerns about the odor detected at Polymer's stack. This report suggested a modification of the stack testing plan that had been previously approved by the commissioner and implemented by Polymer. By letter dated July 2, 1992, the commissioner agreed that "a modified testing program is necessary," but rejected Polymer's proposed revised testing plan. The commissioner explained that "[t]he odor detected at the stack on June 25, 1992, and the consistent presence in the test results of an unknown and unexpected hydrocarbon, dictate a modification of the testing approach.... [U]nless different data are collected, no person will be able to identify these unknown substances. It is presently impossible to conclude that the unknown hydrocarbon does not pose a health threat. Because of the unexpected presence of the unique odor at the stack on June 25, 1992 ... it is similarly impossible to conclude that non-odorous, harmful chemicals are being controlled by the pollution control equipment.... We are not confident that [Polymer's revised] plan will adequately protect the health of the public given these unexpected and presently inexplicable circumstances." The commissioner's revised testing program required the testing of emissions before they entered the pollution control system in the stack in order "to identify all of the compounds that could potentially be released during the processing of polymers ... in order to know what to test for at the outlet of the system."

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, and that any odor from Polymer's stack emissions would be imperceptible to anyone off-site. In an effort to reach a compromise acceptable to the parties, DEP personnel and representatives of Polymer met to discuss the reports and Polymer's objections to the requirements of the July 2, 1992 letter. ¹⁰ On July 13, 1992, however, before the completion of these discussions, Polymer sought and obtained an ex parte temporary restraining order from the trial court, Dean, J., prohibiting the commissioner from (1) interfering with Polymer's operations as permitted prior to the issuance of the July 2, 1992 letter, and (2) requiring Polymer to perform precontrol stack testing. ¹¹

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...