Nancy Burton v. Department of Environmental Protection of the State of Connecticut et al. (2014)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO COMPLETE THE RECORD (# 126)

In this action, the plaintiff Nancy Burton appeals from a final decision issued on August 30, 2010, renewing the National Pollutant Discharge Elimination System (“NPDES”) wastewater discharge permit for the withdrawal and discharge of waters from Niantic Bay into Long Island Sound in connection with the operations of the Millstone Power Station in Waterford, Connecticut.

Before the court is the plaintiff's Motion to Complete the Record of the administrative proceedings.   The plaintiff asserts that the record as submitted by the agency is neither full nor complete because it omits “exhibits submitted by the plaintiff, Nancy Burton, an intervenor, and the Connecticut Coalition Against Millstone (“CCAM”), an intervenor” at the administrative hearing.

The parties have skirmished over this particular subject for more than two years, resulting in inordinate delay in these proceedings.   This motion was first heard by Judge Tanzer in 2011.   Responding to confusion and lack of clarity as to the exact nature of the documents sought to be included in the record, Judge Tanzer ordered the plaintiff to

․ submit to the court and counsel, a list of exhibits which she requests be made a part of the record in this appeal.   The list shall include only those exhibits that the plaintiff had both marked for identification and offered at the hearing in this matter and shall include only those exhibits upon which the hearing officer had ruled.

(December 6, 2011 Ruling on Motion for Order, Docket Entry # 126.01.)

It is debatable whether the plaintiff has ever complied with Judge Tanzer's order by providing the requested list.   In what has been provided, it is fair to say that clarity and specificity are still lacking.

The issue raised by the plaintiff's motion is whether the record as submitted provides an adequate basis for review under General Statutes § 4–183(j) of the plaintiff's claims that the Hearing Officer “improperly excluded” certain documentary evidence which the intervenors sought to have made part of the record.   Judge Tanzer attempted to reach this question by having the plaintiff specify the omissions from the record which rendered it “incomplete,” whereupon the court could assess each of those omitted exhibits in turn.   Having reviewed the “lists” provided by the plaintiff and found them inadequate for that purpose, this court is of the opinion that continued attempts to have the plaintiff specify the documents she is claiming are necessary to “complete the record” on appeal will only further delay the proceedings.

Taking a different approach, this court has reached its decision by reviewing the entirety of the record ¹ as submitted and assessing whether the record is adequate for a meaningful review of the Hearing Officer's administrative findings, inferences, conclusions, and decisions.

The plaintiff's central assertion is that the record is “incomplete” because the documents she attempted to offer as exhibits at the hearing are not included in the record.   The plaintiff maintains that in order to conduct any meaningful review of the Hearing Officer's decision as to the exclusion of those exhibits, the court must have the benefit of seeing the content of the documents.   The plaintiff points to the fact that in an appeal from a judicial trial, documents not admitted into evidence are marked for identification and included with the record on appeal for purposes of review.   A similar rule must apply here, the plaintiff argues, because without the seeing the excluded document itself, the court in this appeal is completely unable to adequately review the Hearing Officer's decision to exclude the document.   The court disagrees, for several reasons.

First, a review of the transcript and the written decisions in the existing record on appeal provides a thorough background and complete understanding of the basis for the Hearing Officer's actions with respect to the documents offered by the intervenors at the hearing.   At numerous points in the transcript, the intervenors' proposed exhibits were offered, extensively discussed, and ruled upon.²  In each case, the subject matter and purported relevance of the document are adequately described within the transcript;  examination of the document itself is not necessary to understand the Hearing Officer's rationale for excluding any documents during the hearing.

Second, DEP Docket No. 260, the Hearing Officer's March 27, 2009 e-mail notifying all parties that the plaintiff's “revised exhibit list will not be considered as part of the record of this proceeding,” clearly demonstrates that the Hearing Officer's decision to exclude the documents from the record was based on the plaintiff's failure to comply with the Hearing Officer's Post–Hearing Directive regarding submission of exhibit lists.   The ruling is procedural in nature and is not based in any sense upon the content of the documents;  therefore examination of the content of the document is not necessary for a meaningful review of this decision.

Third, the plaintiff's suggestion that the court should review the documents themselves and (apparently) independently assess their relevance in order to decide the question of whether the “hearing officer's decisionmaking was legally flawed” (September 20, 2013 “Reply to Defendant's Objections to Plaintiff's Motion for Order,” p. 3) is completely contrary to the applicable standard of review under General Statutes § 4–183(j).  That statute provides in pertinent part:

The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.   The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:  (1) in violation of constitutional or statutory provisions;  (2) in excess of the statutory authority of the agency;  (3) made upon unlawful procedure;  (4) affected by other error of law;  (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;  or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

“Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ [Constrained by a narrow scope of review] [n]either this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of facts ․ Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA, General Statutes § 4–183(j)(5) and (6).   An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ․ and ․ provide[s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action.”  (Citations omitted.)  Spitz v. Board of Examiners of Psychologists, 127 Conn.App. 108, 114, 12 A.3d 1080 (2011).

“[E]ven as to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion ․ Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Perkins v. Freedom of Information Commission, 228 Conn. 158, 164–65, 635 A.2d 783 (1993).

Under this limited scope of review, the court is fully able to conduct a thorough and proper analysis of the findings of law made by the Hearing Officer without any resort to the documents which the plaintiff seeks to add to the record.

Accordingly, for the reasons stated, the court concludes that all of the testimony, exhibits, documents and other evidence necessary and appropriate for a meaningful review of the Hearing Officer's administrative findings, inferences, conclusions, and decisions in accordance with the limited scope of judicial review afforded by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4–166 et seq., have properly been included in the record in the present appeal.   The documents which the plaintiff seeks to add to the record are neither necessary nor appropriate for the disposition of the current appeal.

The plaintiff's Motion to Complete the Record is therefore DENIED.

BY THE COURT,

Sheridan, J.

FOOTNOTES

FN1. There are eighteen days of hearing transcript.   Thankfully, the court's review was assisted by the fact that the transcripts are searchable pdf documents.   This permitted the court to search out every instance where the plaintiff addressed the Hearing Officer..  FN1. There are eighteen days of hearing transcript.   Thankfully, the court's review was assisted by the fact that the transcripts are searchable pdf documents.   This permitted the court to search out every instance where the plaintiff addressed the Hearing Officer.

FN2. See, e.g. Tr. p. 12;  Tr. pp. 12–15;  Tr. pp.430–41;  Tr. pp. 1442–49;  Tr. pp. 1564–73;  Tr. pp. 1578–87, Tr. pp. 1873–81;  Tr. pp.2023–27;  Tr. p. 2429;  Tr. p. 2444;  Tr. pp. 2845–78;  Tr. pp. 3039–43;  Tr. Vol. XVIII.  In fact, it appears that several documents offered as exhibits by the intervenors were initially marked for identification, subject to the intervenors' providing the hearing officer and the other parties an exhibit list properly identifying the exhibits, in accordance with clearly established procedures.   When the intervenors failed to provide the list as ordered, the exhibits were removed from the record..  FN2. See, e.g. Tr. p. 12;  Tr. pp. 12–15;  Tr. pp.430–41;  Tr. pp. 1442–49;  Tr. pp. 1564–73;  Tr. pp. 1578–87, Tr. pp. 1873–81;  Tr. pp.2023–27;  Tr. p. 2429;  Tr. p. 2444;  Tr. pp. 2845–78;  Tr. pp. 3039–43;  Tr. Vol. XVIII.  In fact, it appears that several documents offered as exhibits by the intervenors were initially marked for identification, subject to the intervenors' providing the hearing officer and the other parties an exhibit list properly identifying the exhibits, in accordance with clearly established procedures.   When the intervenors failed to provide the list as ordered, the exhibits were removed from the record.

Sheridan, David M., J.