Connecticut Department of

~ENERGY &

ENVIRONMENTAL PROTECTION
79 Elm Street Hartford, CT 06106-5127 www.ct.~ov/deep Affirmative Action/Equal Opportunity Employer

Office of Adjudications Email floansmission

IN THE MATTER OF

APPLICATIONNO. 200801014
JUNE 21, 2012

RECYCLING, INC.

CITY OF MILFORD MOTION TO DISMISS, MOTION TO REVOKE GENERAL PERMIT AND REQUESTS TO RESCIND TENTATIVE DETERMINATION, REJECT APPLICATION AND ISSUE ORDER TO STOP RECYCLING OPERA TIONS The applicant Recycling Inc. currently conducts certain recycling operations at its Milford facility pursuant to a general permit. The applicant has applied to the Department of Energy and Environmental Protection (DEEP or the department) for an individual pe~xnit to construct and operate a volume reduction facility on its property. General Statutes 22a-208a. On February 10, 2012, the Commissioner of Energy and Environmental Protection issued a tentative determination to approve the application and issue the applicant a permit. 22a-6(h). Ensuing requests for hearing included a petition fiom the City of Milford, which initiated this proceeding. The parties are the applicant, staff of the department, and intervening parties the City of Milford (the City) and the Caswell Cove Condominium Association.~ On May 2, 2012, I granted the departments request that this proceeding be stayed until an action pending in Bridgeport Superior Court (the consolidation of two cases) clarifies who owns and controls the applicant. The other parties to this proceeding consented to this stay except for the City, which has challenged the sufficiency of my decision to stay this proceeding.

~The City and the Caswell Cove Condolninium Association intervened pnrsuant to General Statutes 22a-19(a) (the Connecticut Environmental Protection Act or CEPA); the City also intervened in accordance with the provisions of Regs., Conn. State Agencies 22a-3a-6(k) (the Rules of Practice).

The City filed a Motion to Dismiss this contested case on May 3, 2012. In this Motion, the City also asked that the general permit be revoked (later refened to by the City as its Motion to Revoke), the tentative determination be rescinded, the application rejected, and that DEEP issue an order to stop the applicants recycling operations. DEEP and the applicant each filed objections. The City filed a reply2 and has made a subsequent filing in further support of its motions.3 For the reasons noted below, I am denying the Citys motions and its other requests.4 A. Motion to Dismiss/Requests to Rescind Tentative Detelanination and Reiect Application As I have noted, I stayed this proceeding since the issues of ownership and control of the applicant are currently being considered by the Superior Court. Whatever the Court decides will clearly have consequences for this action. I stayed this proceeding to avoid having the same issues under consideration at the same time in two separate forums and also because having these issues resolved by the Court before continuing with this proceeding will enhance efficiency and provide consistency in results for all involved. It is noteworthy that nowhere in its Motion to Dismiss does the City take any issue with the fundamental reasons for granting a stay in this matter. Rather, the City asks that I dismiss this proceeding without affording the applicant a hearing. Whether the City calls the relief it requests "dismissing this proceeding," "rescinding the tentative determination issued by the Colmnissioner," or "rejecting the applicants application," the result is the same. The City has provided no basis for its extraordinary request which would clearly violate the applicants right to due process. In whatever form its requests for relief are framed, they are denied.

2The applicant filed a statemeut that was several days late adopting DEEPs objections and noting it will be prejudiced if these requests are granted. Regs., Coon. State Ageucies 22a-3a-6(h)(3). The City filed its reply without my permission. I will allow these filings as no siguificaut prejudice to the parties will result, however, the pal~ies are advised that the DEEP Rules of Practice, 22a-3a-2 thrnngh 22a-3a-6, govern this proceeding. 3 The City filed notice of a June 11,2012 Notice of Violation issued to the applicant by DEEP. The City clai~ns that the circumstances snrroundiug its issuauce support its allegations regarding ownership and control of the applicant. 41 have previously stated that 1 cannot grant a motion to dismiss; however, I did not elaborate and apparently caused some confusion. To clarify, because I may issue proposed decisions in permit application cases, I can reconmaend dismissal, but the decision to dismiss is the Comlnissioners final decisiou. Iu short, the Citys Motion to Dismiss is properly before me.

The City argues that staying this matter does not address the critical issue of the applicants aIlegedly willful and continuing deceptions regarding its application and its disregard for the law and environmental concerns of the Citys residents. The City also claims that the Courts resolution of the applicants ownership and control does not impact its request to dismiss this proceeding because, regardless of the Courts decision, the applicants deceit regarding its application remains, it is sufficient to respond to this argument by noting that whatever fraud the City believes the applicant has attempted to perpetrate, it will have a full opportunity toprove at a hearing in this matter. But dismissal of an action based solely on the allegations of one party would violate the most basic precepts embedded in the Uniform Administrative Procedure Act. See General Statutes 4-177c (each party to a proceeding shall have an oppo~tunity to respond, to cross-examine other parties and to present evidence and argument). The City has attempted to present what it describes as "clear evidence" of what it contends are the applicants "repeated misrepresentations" and unsuitability to receive this permit. These accusations also extend to Ms. Darlene Chapelaine personally, ~vho is cea~ified as the owner of the applicant on its application. The City presents what it calls "evidence," often in the form of publicly-available documents and information (which it alleges DEEP had an obligation to find), and argues that its interpretation of the meaning of those materials proves the facts it presents. However, the reality is that at this point in time the City has provided nothing more than allegations that have not been subjected to the scrutiny a hearing can provide. Even affidavits are insufficient to determine the facts unless, like the surmnary judgment, they disclose that no genuine issue as to a material fact exists. Lampasona v. Jacobs, 7 Conn. App. 639, 642 (1986). "When issues of fact are disputed, due process requires that an evidentiary hearing be held with the opportnnity to present evidence and to cross-examine adverse witnesses." Bradleys Appealf!om Probate, 19 Conn. App. 456, 467, (1989). A trier of fact cannot make a critical factual finding based on memoranda and documents submitted by the parties. Id. See also Coughlin 1,. CiO~ofWaterbmy, 61 Conn. App. 310, 315-316 (2001).

Dismissal of this proceeding would deny due process rights to the parties. It is a fundamental principle of law that in almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. Goldberg v. Kelly, 397 U.S. 254, 269 (1970). I cannot recommend that this matter be dismissed when the applicant, who has the burden of proof, has not even been provided with an opportunity to meet its burden. Regs., Conn. State Agencies 22-3a-6(f). This opportunity is at the heart of due process requirements governed by the Uniform Administrative Procedure Act, General Statutes 4-166 through 4-189, and the departments Rules of Practice, 22a-3a-2 through 22a-3a-6.

The City argues that the precedent established by the departments final decision in Champion Recycling Industries, Inc., should apply. In Champion, the DEEP opined that it will consider denying a permit if there is any misrepresentation in the application. Champion Recycling Industries, Inc., Final Decision, January 8, 1997. However, in that matter, the misrepresentation was proven during the hearing after all the parties were provided an opportunity to present evidence and cross examine witnesses. The City fails to acknowledge that fact even though it is included in the Citys quote from the Champion decision. The administrative hearing process is in place to protect the due process rights of all participants. The City cannot reasonably expect the allegations of one party to circumvent the administrative hearing processes and deny other parties their right to due process. 5

The Citys argument also impugns DEEP and its work on this application. Such provocative statements, unless supported by evidence, hold no sway in this forum and could inappropriately misinform residents before this application and its review are properly vetted in the hearing process. During this process, I will impartially evaluate the record, including any relevant evidence on these issues.

B. Revocation of General Permit The City argues that the general permit under which the applicant cm~cently conducts it recycling operations should be revoked.6 There are a number of reasons why this request must be denied. First and foremost, unlike an individual permit, a general permit authorizes a number of activities for a number of registrants. Accordingly, a general permit cannot be revoked without also revoking the rights of other registrants to lawfully engage in authorized activities. However, even if revocation of just the applicants registration under the General Permit was requested, it is clear that this request must also be denied. The cmaent proceeding concerns the application for a solid waste pe~nit. This is not an enforcement proceeding. The City cites the applicants compliance history as grounds for revocation. While pursuant to General Statutes 22a-6m, this history is relevant to whether the requested application should be issued, the question of whether the applicants cunent registration should be revoked in not properly a qnestion before me or any decision-maker in the context of this pro ceeding.7 C. Order to Halt Current Rec,/cling Operations For the same reasons, it is inappropriate for me to direct that an order be issued to stop the applicants cunent recycling operations and I deny the Citys request that I do so. Again, the current proceeding is not an enforcement proceeding. While nothing in the cunent proceeding precludes the Commissioner from taking further action if the Commissioner deems it appropriate, the fact remains that the Commissioner has not done so. Moreover, while I have been delegated the authority to issue a Proposed Final Decision in this matter, it is beyond my authority to direct that an order be issued. I also question whether the depa~tment would issue an order based solely on the Citys allegations.
The applicant operates under the General Permit to Construct and Operate Certain Recycling Facilities.
7The City argues that suspending this proceeding not does protect the residents of Milford and the Housatonic River

coummnity fiom continued recycling operations. I note that the Department has indicated it will continue to follow the proper protocols to assess and investigate the applicants compliance with the General Permit. I have no reason to conclude that this will not be sufficient to protect the citizens of Milford.

D. Ruling
I deny the Citys requests to dismiss this proceeding, rescind the tentative determination, or reject the application as they would result in an unacceptable violation of the applicants due process rights based solely on the Citys allegations. I also deny the request to revoke the General Permit as this would unjustly impair the rights of other registrants. Finally, even if the City had presented actionable evidence of environmental violations, this is not an enforcement action and I have no authority to direct that an order be issued to halt the applicants cunent recycling operations. This proceeding will continue to be stayed pending the resolution of the action pending in the Superior Court.

Deshais, Hearing Officer

cc:

Darlene Chapedelaine Jeamnarie Riccio, Esq. Jonathan J. Klein, Esq. Alan Kosloff; Esq. (cozotesy copy) Gabrielle Frigon David Slossberg, Esq. Amy Souchins, Esq. Franklin Pilicy, Esq. David Phillips