218 Conn. 821 (1991) | Cited 8 times | Supreme Court of Connecticut | May 21, 1991

The defendants Connecticut Resources RecoveryAuthority, Southeastern Connecticut Regional ResourcesRecovery Authority1 and American Ref-Fuel Company (thedefendants)2 filed applications with the defendantConnecticut department of environmental protection (DEP) forthree permits necessary to construct a proposed resources recovery

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     facility3 (the facility) in the plaintiff town ofPreston. See General Statutes 22a-208a (solid wasteconstruction permit); 22a-174 (c) (air emissions permit);22a-430 (a) (water discharge permit).4 Pursuant to

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     General Statutes 22a-19 (a),5 the plaintiffs, thetown of Preston, Citizens for Alternatives to theIncineration of Refuse, the Mohegan Indian Tribe andNation John E. Hamilton and Eleanor C. Fortin,intervened as parties in the administrative proceeding.Following public hearings, the commissioner ofenvironmental protection (the commissioner) granted thedefendants' applications for a solid waste constructionpermit and an air emissions permit.6 The plaintiffsappealed to the Superior Court, which dismissed theappeal on its merits. The plaintiffs thereafterappealed to the Appellate Court and we transferred theappeal to this court pursuant to Practice Book 4023. Weaffirm.

The plaintiffs claim that the trial court should haveconcluded that the commissioner improperly granted thedefendants' applications for a solid waste constructionpermit and an air emissions permit.


The plaintiffs first claim that the trial court shouldhave concluded that the defendants' application for asolid waste construction permit was improperly grantedby the commissioner. According to the plaintiffs,

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     because the application was incomplete, the commissionerwas prohibited from granting it. The plaintiffs also arguethat because the defendants failed to demonstrate that aparent company of the defendant Ref-Fuel, Browning-FerrisIndustries, Inc. (BFI), had not repeatedly violatedpertinent statutes, the application should have been denied.


We first address the plaintiffs' assertion that thedefendants' application for a solid waste constructionpermit was incomplete and that, therefore, thecommissioner was precluded from granting it. According tothe plaintiffs, 22a-209-4 (b) of the Regulations ofConnecticut State Agencies,7 requires that specific

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     information be included in every application for asolid waste construction permit and that, therefore,the absence of certain of this information from the

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     defendants' application rendered the application incompleteand precluded issuance of a solid waste permit.8 Wedo not agree.

Section 22a-209-4 (b) provides in pertinent part: "Theinformation required to be in an application for a permitto construct shall depend upon the type of solidwaste facility proposed . . . . An application will notbe deemed complete until all information required bystatutes or regulations or otherwise requested by theCommissioner have [sic] been submitted in proper form.

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     (1) Application for each solid waste facility permit toconstruct . . . shall include but not be limited to thefollowing as the Commissioner deems necessary . . . ."(Emphasis added.) This language is followed by a comprehensivelist of items that relate to all solid wastefacilities. Id. Section 22a-209-4 (b) thereafterprovides: "(2) A facility plan, including engineeringstudies and proposals, shall accompany the application. . . and shall include but not be limited to thefollowing information and supporting materials as theCommissioner deems necessary . . . ." (Emphasisadded.) This language is followed by two specific listsof items. The first applies to "solid and special wastedisposal areas," while the second applies to "transferstations, resources recovery facilities or other volumereduction plants and biomedical waste treatmentfacilities." Regs., Conn. State Agencies 22a-209-4(b)(2)(A) and (B).

The plaintiffs argue that use of the phrase "shallinclude" in the prefatory language of 22a-209-4 (b)(1)and (2) requires that every application for a solidwaste construction permit include each item set forthin 22a-209-4 (b)(1) and, if applicable, each item setforth in 22a-209-4 (b)(2)(A) or (B). It is quiteplausible, however, that the phrase "as theCommissioner deems necessary" modifies "shall include"and that, therefore, an application for a solid wasteconstruction permit "shall include" the information setforth only if the commissioner deems it necessary.Nevertheless, the plaintiffs maintain that the phrase"as the Commissioner deems necessary" modifies only thephrase "but not be limited to the following" and that,therefore, any discretion that the phrase imparts tothe commissioner is restricted to determining whetheran application will be limited to the information setforth in the regulation.

Because 22a-209-4 (b) is subject to two plausibleinterpretations, it requires our construction. As is true

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     in every case involving the construction of a statute,our starting point must be the language employed.9King v. Board of Education, 203 Conn. 324, 332,524 A.2d 1131 (1987); Verdon v. Transamerica Ins. Co., 187 Conn. 363,366, 446 A.2d 3 (1982). "The test for determiningwhether the use of the word `shall' is mandatory ordirectory is whether the prescribed mode of action is ofthe essence of the thing to be accomplished.' Vartuliv. Sotire, 192 Conn. 353, 360, 472 A.2d 336 (1984). Thattest must be applied with reference to the purpose of thestatute. See id." LeConche v. Elligers, 215 Conn. 701,710, 579 A.2d 1 (1990).

General Statutes 22a-208a (a), part of the legislativescheme that 22a-209-4 was designed to implement; seeGeneral Statutes 22a-209; provides: "The commissioner ofenvironmental protection may issue, deny, modify, renew,suspend, revoke or transfer a permit, under such conditionsas he may prescribe and upon submission of such informationas he may require, for the construction, alteration andoperation of solid waste facilities, in accordance withthe provisions of this chapter and regulations adoptedpursuant to this chapter." (Emphasis added.) The legislatureintended, therefore, that the decision of what information mustbe included in a solid waste construction permit applicationis, ultimately, a matter within the commissioner's discretion.

Furthermore, by rendering a decision on the defendants'application, despite the fact that the application didnot include every item of information set forth inthe regulation, the commissioner implicitly interpreted

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     22a-209-4 (b) as requiring the application for asolid waste construction permit to include only the informationthat he deemed necessary. We accord great deferenceto the construction of a provision given by theadministrative agency charged with the provision'senforcement. Trumbull v. State, 206 Conn. 65, 77,537 A.2d 431 (1988); Phelps Dodge Copper Products Co. v.Groppo, 204 Conn. 122, 128-29, 527 A.2d 672 (1987)."This principle applies with even greater force to anagency's interpretation of its own duly adopted regulations."Griffin Hospital v. Commission on Hospitals &Health Care, 200 Conn. 489, 497, 512 A.2d 199, appealdismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d819 (1986).

Considering the comprehensiveness of the lists setforth in 22a-209-4 (b), construction of the section asthe plaintiffs suggest would elevate form over substanceby requiring the inclusion of information in anapplication in cases where the commissioner, in hisdiscretion, deems such information either unnecessaryor superfluous. "`[W]here a statute is capable of twoconstructions, one that is rational and effective inaccomplishing the evident legislative object, and theother leading to "bizarre results" destructive of thatpurpose, the former should prevail.' State v. Williams,206 Conn. 203, 210, 536 A.2d 583 (1988)." State v.Uretek, Inc., 207 Conn. 706, 719, 543 A.2d 709 (1988).

We conclude that, because the purpose of 22a-209-4(b) is to ensure that the commissioner has an adequatebasis upon which to render a decision on a solid wasteconstruction permit application and because both thelegislature and the commissioner have determined thatthe commissioner is in the best position to decide whatinformation is necessary under the circumstances ofeach case, the more reasonable interpretation

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     of 22a-209-4 (b) is that an application thereunder mustinclude only those items set forth that the commissionerdeems necessary.


The plaintiffs next assert that because the defendantsfailed to demonstrate that BFI, a parent company ofRef-Fuel, had not repeatedly violated pertinent statutes,their application for a solid waste construction permitshould have been denied. We disagree.

Section 22a-209-4 (d)(1)(D) of the Regulations ofConnecticut State Agencies provides in pertinent part:"(1) The Commissioner shall issue a permit to constructor to operate upon receipt of satisfactory evidence fromthe applicant that . . . (D) the owner or operator ofthe facility or, if the owner or operator is a businessentity, a parent or subsidiary corporation . . . has notrepeatedly violated pertinent statutes, regulations, ordersor permit terms or conditions at any solid waste facility."

In support of their position, the plaintiffs assertthat, pursuant to 22a-209-4 (d)(1)(D), evidence of thefollowing precluded the commissioner from issuing a solidwaste construction permit to the defendants: BFI had beenordered to cease operations and alter its methods ofoperation at various waste disposal sites. BFI had beenthe subject of investigation in connection with enforcementactions involving hazardous waste disposal. Administrativeproceedings involving the discharge of materials into theenvironment were pending against BFI. BFI was a nameddefendant in a pending civil action that alleged pricefixing for waste services. After considering this evidence,the commissioner determined that BFI's compliance historydid not warrant denial of the defendants' application for asolid waste construction permit.

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In reviewing a decision of an administrative agency,we will reverse the decision upon a showing that theagency acted illegally, arbitrarily or in abuse of itsdiscretion or that the decision is unsupported by theevidence. Connecticut Building Wrecking Co. v. Carothers,218 Conn. 580, 605, 590 A.2d 447 (1991); Connecticut HumaneSociety v. Freedom of Information Commission, 218 Conn. 757,762, 591 A.2d 395 (1991). The determination of whether anapplicant has "repeatedly violated pertinent statutes,regulations, orders or permit terms or conditions at anysolid waste facility" is a question of fact. We concludethat nothing in the record indicates an abuse of discretionby the commissioner in refusing to find that BFI's violationshad been repeated. We further conclude that the commissionerreasonably determined that evidence of investigations,alleged violations of pertinent statutes and pending proceedingsinvolving BFI, did not require denial of the defendants'application for a solid waste construction permit.


The plaintiffs next claim that the trial court shouldhave concluded that the defendants' application for anair emissions permit was improperly granted. Accordingto the plaintiffs, because the defendants failed toanalyze the particulate matter measuring less than tenmicrons in diameter that will be emitted by the facilityand because they failed properly to analyze theimpact that the facility will have on the prevention ofsignificant deterioration of the ambient air quality,their application should have been denied.


The plaintiffs first assert that the defendants'failure to analyze the particulate matter measuring less

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     than ten microns in diameter (PM, )10 that willbe emitted by the facility required denial of theirapplication for an air emissions permit. We disagree.

Title 40 C.F.R. § 52.21 (i) (1990) provides in pertinentpart:" (1) No stationary source . . . to which therequirements of paragraphs (j) through (r) of this sectionapply shall begin actual construction without apermit which states that the stationary source . . . wouldmeet those requirements." Title 40 C.F.R. § 52.21 (j)(2)(1990) provides: "A new major stationary source shallapply best available control technology for each pollutantsubject to regulation under the Act that it would havethe potential to emit in significant amounts."11The plaintiffs argue that, pursuant to 52.21(i), thedefendants' application was required to include an analysisshowing that the facility would apply the best available controltechnology with respect to limiting PM, [10] emissions and,therefore, meet the requirement of 52.21(j)(2). Weare unpersuaded.

Title 40 C.F.R. § 52.21 (i)(4) (1990) provides inpertinent part: "The requirements of paragraphs (j) through(r) of this section shall not apply to a particular majorstationary source . . . if . . . (x) The source . . . wassubject to 40 C.F.R. § 52.21, with respect to particulate matter,as in effect before July 31, 1987 and the owner or operatorsubmitted an application for a permit under this sectionbefore that date, and the Administrator [of the environmentalprotection agency] subsequently determines that the applicationas submitted was complete with respect to the particulate

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     matter requirements then in effect in this section.Instead, the requirements of paragraphs (j) through (r)of this section that were in effect before July 31,1987 shall apply to such source or modification."

It is undisputed that the facility was subject to40 C.F.R. § 52.21, with respect to particulate matter, as ineffect before July 31, 1987. See 40 C.F.R. § 52.21(1986). The plaintiffs assert, however, that thedefendants failed to submit a complete application foran air emissions permit under 52.21 prior to July 31,1987. The plaintiffs first argue that because thedefendants submitted their application for a permit tothe commissioner, rather than to the administrator ofthe environmental protection agency (theadministrator), they failed to submit an applicationunder 52.21. Because the administrator has delegatedauthority to enforce the standards of performance fornew stationary sources to the commissioner; seeRegs., Conn. State Agencies 22a-174-3 (a)(2) (commissionerhas been delegated authority to enforce 40 C.F.R. Part60 by the administrator); 40 C.F.R. Part 60 (1990)(standards of performance for new stationary sources);this argument is without merit.

The plaintiffs next assert that the defendants'application was not complete until September 16, 1987,and that, therefore, the exemption set forth in 52.21(i)(4)(x) does not apply. The commissioner determinedthat a complete application for an air emissions permitwas submitted by the defendants before July 31, 1987.The plaintiffs' second assertion, therefore, is equallywithout merit.

Because the defendants submitted a complete applicationfor an air emissions permit prior to July 31, 1987, therequirements of 40 C.F.R. § 52.21 (i) and (j) (1990) do notapply to their application for an air emissions permit.Instead, the requirements of 40 C.F.R. § 52.21 (1986),which were the regulations in effect prior to

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     July 31, 1987, govern the defendants' application.40 C.F.R. § 52.21 (i)(4)(x) (1990). PM, 0 is not apollutant subject to regulation under the 1986regulations. See 40 C.F.R. § 52.21 (b) (23) (i) (1986). Weconclude, therefore, that the defendants were notrequired to conduct an analysis of PM, 0 emissions inorder to obtain an air emissions permit.


The plaintiffs next assert that because the defendantsfailed to analyze properly the effect that the facilitywill have on the prevention of significant deteriorationof the ambient air quality (PSD),12 their applicationfor an air emissions permit should have been denied.We disagree.

Title 40 C.F.R. § 52.21 (m)(1) (1990) provides in pertinentpart: "(i) Any application for a permit underthis section shall contain an analysis of ambient airquality in the area that the major stationary source .would affect for each of the following pollutants: (a)For the source, each pollutant that it would have thepotential to omit in a significant amount . . . ."The plaintiffs do not dispute that the defendantssubmitted an analysis of PSD with their application.They assert, however, that, because the defendants'analysis did not contain all essential data and becausesome of the data that it included was outdated, inaccurate

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     or unverified, the analysis was inadequate. Nevertheless,the plaintiffs have not challenged the commissioner'sconclusion that "[t]he [f]acility will meetall applicable state and federal regulations governingthe issuance of permits for a new source of airemissions."

We conclude that, despite the alleged inadequacy ofthe defendants' PSD analysis, because the plaintiffs donot challenge the commissioner's conclusion that thefacility will comply with applicable federal and stateregulations governing new stationary sources of airemissions, including regulations designed to ensurePSD, the commissioner properly granted the defendants'application for an air emissions permit.

The judgment is affirmed.

In this opinion the other justices concurred.

1. The Connecticut Resources Recovery Authority (CRRA)is a body established to implement the Solid WasteManagement Services Act. General Statutes 22a-257 etseq.; see General Statutes 22a-261, 22a-262. The CRRAhas delegated responsibility for solid waste managementin southeastern Connecticut to the SoutheasternConnecticut Regional Resources Recovery Authority(SCRRRA). See General Statutes 22a-260 (18), 22a-275.

2. We refer to the Connecticut Resources RecoveryAuthority, the Southeastern Connecticut RegionalResources Recovery Authority and American Ref-FuelCompany collectively as the defendants. Where necessaryto distinguish among these defendants, we refer to themas CRRA, SCRRRA and Ref-Fuel, respectively.

3. "`Resources recovery facility' means a facilityutilizing processes to reclaim energy from solidwastes." General Statutes 22a-219a.

4. General Statutes 22a-208a provides in pertinent part:"(a) The commissioner of environmental protection mayissue, deny, modify, renew, suspend, revoke ortransfer a permit, under such conditions as he mayprescribe and upon submission of such information as hemay require, for the construction, alteration andoperation of solid waste facilities, in accordance withthe provisions of this chapter and regulations adoptedpursuant to this chapter. . "(b) No solid waste facility shall be built orestablished and no solid waste facility without apermit to construct shall be altered after July 1,1971, until the plan, design and method of operation ofsuch facility have been filed with the department andapproved by the commissioner by the issuance of apermit to construct, provided, nothing in this chapteror chapter 446e shall be construed to limit the rightof any local governing body to regulate, throughzoning, land usage for solid waste disposal. Thecommissioner shall send a written notification of anyapplication for a permit to construct to the chiefelected official of each municipality in which theproposed facility is to be located, within five businessdays of the date on which any such application isfiled . . . ." General Statutes 22a-174 (c) provides in pertinentpart: "The commissioner shall have the power, inaccordance with regulations adopted by him, (1) torequire that a person, before understanding theconstruction, installation, enlargement orestablishment of a new air contaminant source specifiedin the regulations adopted under subsection (a),submit to him plans, specifications and suchinformation as he deems reasonably necessary relatingto the construction, installation, enlargement, orestablishment of such new air contaminant source; (2)to issue a permit approving such plans andspecifications and permitting the construction,installation, enlargement or establishment of the newair contaminant source in accordance with such plans,or to issue an order requiring that such plans andspecifications be modified as a condition to hisapproving them and issuing a permit allowing suchconstruction, installation, enlargement orestablishment in accordance therewith, or to issue anorder rejecting such plans and specifications andprohibiting construction, installation, enlargement orestablishment of anew air contaminant source inaccordance with the plans and specifications submitted General Statutes 22a-430 (a) provides in pertinentpart: "No person or municipality shall initiate,create, originate or maintain any discharge of water,substance or material into the waters of the statewithout a permit for such discharge issued by thecommissioner . . . ."

5. General Statutes 22a-19 (a) provides: "In anyadministrative, licensing or other proceeding, and inany judicial review thereof made available by law, theattorney general, any political subdivision of thestate, any instrumentality or agency of the state or ofa political subdivision thereof, any person,partnership, corporation, association, organization orother legal entity may intervene as a party on thefiling of a verified pleading asserting that theproceeding or action for judicial review involvesconduct which has, or which is reasonably likely tohave, the effect of unreasonably polluting, impairingor destroying the public trust in the air, water orother natural resources of the state."

6. With respect to the application for a waterdischarge permit, the commissioner ordered the defendantsto submit their construction plans and specifications tothe water compliance unit of the DEP for review. Thecommissioner stated that, following review and approval ofthe plans and specifications by the water compliance unitand construction of the facility in accordance with suchapproval, a water discharge permit would be issued.

7. Section 22a-209-4 (b) of the Regulations ofConnecticut State Agencies provides in pertinent part:"The information required to be in an application for apermit to construct shall depend upon the type of solidwaste facility proposed. Such information shall beoutlined in these regulations and further detailed inguidelines prepared by the Department, The informationin the application must be sufficient to demonstratethe ability of the facility to comply with therequirements of these regulations. An application willnot be deemed complete until all information requiredby statutes or regulations or otherwise requested bythe Commissioner have been submitted in proper form. "(1) Application for each solid waste facilitypermit to construct shall be made by the owner oroperator of the facility on forms furnished by theCommissioner and signed by the owner and, if theapplicant is the operator, the operator, and shallinclude but not be limited to the following as theCommissioner deems necessary: "Information required by the Rules of Practice of theDepartment; name and address of the operator, owner,and, if the operator or owner is a business entity, thenames and addresses of all parent and subsidiarycorporate partners, corporate officers and directors,stockholders holding more than fifty percent of thestock of the Corporation; a list of all solid waste Yeswhich each of the above persons are or have beenassociated with and their positions and responsibilities;name and address of the agent for service; facility location;type of facility; type of proposal (e.g. new facility,expansion or other alteration); a list of other permitsrequired for the facility a explanation of how the proposalrelates to the State Solid Waste Management Plan; informationas to the financial stability of the applicant; a commitmentto post the proper surety if required by these regulations;a copy of any lease, deed or other agreement regardingthe ownership, control or use of the facility; a listof any outstanding administrative orders against thefacility; a list of supporting materials submitted withthe application; and any other information which theCommissioner deems necessary. "(2) A facility plan, including engineering studiesand proposals, shall accompany the application and beprepared by an engineer licensed to practice in theState of Connecticut; shall contain sufficientinformation to demonstrate an ability to comply withthese regulations; and shall include but not be limitedto the following information and supporting materialsas the Commissioner deems necessary and as furtherdetailed in engineering guidelines provided by theCommissioner: "(A) For solid and special waste disposal areas: "(i) a detailed area map at a scale and contourinterval approved by the Commissioner which shalldepict the site and surroundings within one-half mile,noting natural and artificial features and land use;including but not limited to all structures andoverhead and underground utilities and a statement byeach affected utility that the proposed activityadequately protects these utilities in compliance withapplicable standards; "(ii) detailed site maps at a scale and contourinterval approved by the Commissioner depicting allitems specified in (A)(i) above and existing, sitepreparation, and final grades, property boundaries,existing and proposed fill limits including location offill limit markers, soil boring and monitoringlocations, proposed structures on site, access and siteroads, fencing, buffer zones and screening; "(iii) cross sections through the site, at a minimumof one parallel and one perpendicular to ground waterflow, depicting existing, site preparation and finalgrades and elevation and flow direction of groundwater, type and structure of bedrock and type andlocation of soils. "(iv) supplemental maps and plans not prepared as partof the engineering study but used as referencematerials for engineering and operationalinterpretations; "(v) hydrogeologic and geologic information includingpredictions of movement of and impact on surface andground water, including water supply wells, fromexisting and proposed site activities, and the namesand addresses of all landowners within the area ofpotentially impacted ground waters, detailed soilboring logs; details of monitor well construction anddevelopment, the method of testing and testing results; "(vi) operational plans suitable for field use by theoperator including but not limited to details ofconstruction, sequence of fill, a list of the type andamount of equipment and the number and responsibilitiesof staff, daily operations, traffic flow, controlsnecessary to protect the public health, safety andwelfare, emergency procedures, communications equipment,regular maintenance schedules, information to be recordedand recording procedures, and methods of measuring waste,and monitoring parameters and schedule; "(vii) a discussion of expected site life and post-closureuse; and "(viii) any other information which the Commissionerdeems necessary. "(B) For transfer stations, resources recoveryfacilities or other volume reduction plants, andbiomedical waste treatment facilities: "(i) all applicable information required underSection 22a-209-4 (b)(2)(A) of these regulations; "(ii) detailed drawings and specifications of sitestructures, all fixed and transport equipment, methodsof volume reduction and storage, and a discussion ofutility provision; "(iii) approximate volume of each waste type to behandled, a list of types of facility users andmunicipalities served, associated facilities for theultimate disposal of the wastes, residues, and recycledmaterials, and contingency plans for periods of shutdown or breakdown; "(iv) a copy of all facility operation andmaintenance manuals, and a discussion of: OSHArequirements and how these requirements will be met,materials and energy balance as appropriate, proposedperformance tests, system reliability andredundancy/backup system, operation and maintenancebudget; and "(v) any other information which the Commissionerdeems necessary."

8. The plaintiffs' assertion that thedefendants' application was incomplete is based on theabsence of the following: (1) a list of solid wastefacilities with which Ref-Fuel is associated; (2)information as to Ref-Fuel's financial stability; (3)hydrogeologic and geologic information about the facility,specifically, the proposed location of soilborings and information about the soil pertaining tofoundation design; (4) detailed information concerningthe operation and maintenance of the facility; and (5)information identifying the location for the ultimatedisposal of ash residue and bypass waste produced by thefacility. See Regs., Conn. State Agencies 22a-209-4 (b).

9. Our rules of statutory construction apply to administrativeregulations. See Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631,641, 587 A.2d 415 (1991); see also Plastic Distributors, Inc. v.Burns, 5 Conn. App. 219, 228, 497 A.2d 1005 (1985).

10. Particulate matter measuring less than ten micronsin diameter, PM, [10] is a pollutant, the emission of which issubject to regulation under the Clean Air Act. 42 U.S.C. § 7401et seq. (1988); see 40 C.F.R. § 52.21 (b) (23) (i) (1990).

11. With respect to PM10, "a significant amount" is thepotential to emit 15 tons per year. See 40 C.F.R. § 52.21 (a)(23) (i) (1990). It is undisputed that the facility has thepotential to emit PM [10] in significant amounts.

12. Ambient air quality is a classification of theair based on the level of pollutants that are present.1 F. Grad, Treatise on Environmental Law 2.03, p. 2-82.Under the Clean Air Act, the administrator is requiredto establish standards of ambient air quality fordesignated regions of the United States that the statesare required to implement, maintain and enforcepursuant to state implementation plans. Id.; see also42 U.S.C. § 7409, 7410 (1988). The prevention ofsignificant deterioration of the ambient air quality(PSD) is an express policy of the Clean Air Act. See42 U.S.C. § 7471 (1988); see also 1 F. Grad, supra, 2.03[b], p. 2-170. The requirements of 40 C.F.R. § 52.21 (c)through (m), (p) (1990), are designed to ensure PSD.Page 901

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