The state Appellate Court is reviewing an appeal filed by Recycling Inc. as the company continues to contest a decision by the state Department of Energy and Environmental Protection (DEEP) to deny the company a permit to operate a recycling facility.

Recycling Inc. is seeking to operate a 45,000 square foot recycling facility on a 6.7-acre site at 990 Naugatuck Ave., which is located in the Housatonic Design District (HDD).

DEEP Deputy Commissioner Susan K. Whalen made a final decision on Feb. 5, 2015 to revoke Recycling Inc.’s general permit to operate a recycling facility in Milford, and also denied the company’s pending application to obtain an individual recycling permit. The company appealed that decision to Superior Court on March 20, 2015.

Superior Court Judge Henry S. Cohn denied Recycling Inc.’s appeal of Whalen’s decision on Jan. 20, 2016, prompting the company to file an appeal to the Appellate Court on Feb. 20, 2016. The most recent action took place on July 20, with the Appellate Court motions related to the legal proceedings in the case.

In his decision, Cohn rejected all of the arguments raised by Recycling Inc. in the appeal. Cohn cited multiple cases at the Appellate Court level in explaining his decision.

In the appeal, Recycling Inc. asserted that DEEP Commissioner Rob Klee showed bias because he had conversations with the city of Milford regarding the company ownership.

In response, Cohn wrote that the company “has not met its burden to show that the commissioner violated due process,” noting that Klee recused himself from the hearing that was conducted by Janice Deshais, hearing officer for the DEEP, and assigned the case to Whalen.

Cohn also rejected Recycling Inc.’s contention that it was denied due process at the administrative hearing conducted by Deshais, writing that her “detailed findings and conclusion of law” support the conclusion that she conducted a fair and impartial proceeding and ruling. In addition, Cohn agreed with the DEEP regarding the question of the company’s ownership.

The DEEP had concerns about Gus Curcio’s involvement with the company, in part due to enforcement action it took against him and his son Gus Curcio Jr. for operating a waste processing facility at 990 Naugatuck Ave., in 2007 without a permit.

The appeal further contended that Gus Curcio Sr. did not own Recycling Inc. when it filed for the individual permit, and argued that Curcio was a source of funds for the company, which he did not control.

Cohn cited the findings from Deshais, saying that the company was formed at Curcio’s direction, and that he nominated the company’s first president, and then nominated Darlene Chapdelaine as the second president, approved all expenses and made the major decisions, was the beneficial owner, controlled the day-to-day operations, controlled the finances and every aspect of the business, and arranged for 18 mortgages to be placed on the real estate of the company.

“Our Supreme Court has concluded, however, that a beneficial owner can be deemed the legal owner if he has access to control of the corporation,” wrote Cohn.

Finally, Cohn denied Recycling Inc.’s argument that the penalties of denial and revocation were too severe, citing a court case supporting the idea that if the penalty lies within the agency’s discretion, it cannot be successfully challenged unless the discretion has been abused.

“The record does not support a finding of abuse of discretion,” wrote Cohn.

Paperwork related to the Superior Court case, including Cohn’s decision, may be read at  HYPERLINK "http://tinyurl.com/gvmjpld" http://tinyurl.com/gvmjpld.  

The list of activity at the Appellate Court may be read at this website  HYPERLINK "http://appellateinquiry.jud.ct.gov/TCDocketNumberInq.aspx" http://appellateinquiry.jud.ct.gov/TCDocketNumberInq.aspx by clicking on “Trial Court Docket Number” on the left side of the webpage, and entering the case number of “6028562”.

Other Case Continues

Meanwhile the next Superior Court hearing on two other cases related to 990 Naugatuck Ave. is scheduled for Nov. 10, 2016. In that case, Joseph Barrett, who is listed as the member and agent of the Housatonic Terminal LLC, claims he owns the property at 990 Naugatuck Ave., and is entitled to a permit to operate a recycling facility.

Barrett told the Zoning Board of Appeals (ZBA) at its July 14, 2015 meeting that he held a mortgage on the property and regained ownership from Recycling Inc. through foreclosure and forbearance, contending that the company had previously been owned and operated by Gus Curcio Sr. Barrett told the board he did not intend to abandon any past uses when he sold the property.

Barrett’s appeal of Dec. 16, 2015, seeks to overturn a unanimous Dec. 8, 2015 vote of the ZBA. The ZBA vote upheld a decision by Milford Zoning Enforcement Officer Stephen Harris ordering the company to remove certain materials from the site.

Harris issued an enforcement order on Oct. 27, 2015, after asphalt millings were deposited at 990 Naugatuck Ave., and due to the ongoing presence of oil barrels and a small amount of junked cars Harris told Recycling Inc. that it had to remove these items from the property to correct what he viewed as a violation of zoning regulations.

Barrett is also seeking to overturn a Sept. 8, 2015 unanimous decision by the ZBA supporting a decision by Harris to revoke a Certificate of Zoning Compliance (CZC) to allow a “limited processing recycling facility.”

Harris issued the CZC on May 22, 2015 and then revoked it on July 14, 2015, when he learned that the DEEP had revoked Recycling Inc.’s permit to construct a volume reduction facility on the property.

The court documents related to the ZBA case may be read at  HYPERLINK "http://tinyurl.com/gkvyat8" http://tinyurl.com/gkvyat8.