author: Callahan, J.

text:
    Henry Zachs v. John G. Groppo, Commissioner of Revenue Services
    (13317)
    Peters, C. J., Shea, Callahan, Glass and Santaniello, Js.

      Argued March 3
    decision released June 7, 1988

      Edward T. Blair, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (defendant).

      F. Gina Gelb, for the appellee (plaintiff).
   Callahan, J.

The principal issue raised by this appeal is whether the one-way radio paging services operated by the plaintiff, Henry Zachs, doing business as Massachusetts Connecticut Mobile Telephone Company, are “telephone answering services” within the meaning of General Statutes § 12-407 (2) (i) (G), and thus, subject to Connecticut sales and use tax. We find that they are not and, therefore, affirm the judgment of the trial court rendered in favor of the plaintiff.

The relevant facts are not in dispute. In 1975, the Connecticut legislature passed Public Acts 1975, No. 75-213, §§15 through 22, and 53, which amended General Statutes § 12-407 regarding the applicability of the state sales and use tax provisions. Prior to July 1,1975, § 12-407 (2) (i) imposed, in pertinent parts, a sales tax upon the sale of “telephone . . . services.” Public Acts 1975, No. 75-213, § 15, revised § 12-407 (2) (i) by, inter alia, deleting “telephone . . . services” and imposing a sales tax upon “telephone answering services.” Initially, this change became codified in § 12-407 (2) (i) (I) and thereafter was recodified in § 12-407 (2) (i) (G).

Since 1961, the plaintiff has been engaged in various aspects of the telecommunications industry in New England, and has operated a telephone answering service, a cellular telephone business and a mobile radio telephone business. In 1970, he began a one-way pager or beeper service in Connecticut under the business name of Massachusetts Connecticut Mobile Telephone Company. In recognition of the enactment of Public Acts 1975, No. 75-213, § 15, the plaintiffs attorney forwarded a letter dated July 1,1975, to Terrance O’Neill of the state tax department. The letter summarized the essential aspects of the plaintiffs portable radio telephone and radio paging businesses. In his letter, the plaintiff’s attorney sought guidance with regard to the tax ramifications of the new amendment and posited the following question to the tax department: “[D]oes [Public Acts 1975, No. 75-213,] § 15 (K), which taxes the leasing or rental of tangible personal property, apply to the furnishing of a service under F.C.C. tariff and regulation?” Tax Commissioner Gerald J. Heffernan responded by letter dated November 21,1975, in which he stated: “This will acknowledge receipt of your inquiry pertaining to the taxability of the equipment rented or leased by your clients to their customers. The department has reviewed the facts of this case and it is the determination of the department that your clients are in the business of renting or leasing tangible personal property. The rental income is subject to the tax pursuant to Public Act 75-213.” Pursuant to the commissioner’s letter, the plaintiff began collecting sales tax on the rental and sales of the paging or beeper equipment and the mobile radio telephone equipment. The plaintiff, however, did not charge or collect sales taxes on the monthly service charges paid by the subscribers of these services, apparently because the defendant’s letter was silent on this issue.

In 1985, a revenue examiner from the Connecticut department of revenue services conducted a general audit of the plaintiff’s books for the period of January 1, 1982, through December 31,1984. The examiner concluded that the revenues received by the plaintiff from the service charges for the paging or beeper services were subject to sales tax under § 12-407, as amended by Public Acts 75-213, § 15, and assessed the plaintiff back taxes in the amount of $354,557.90, exclusive of interest. Thereafter, the plaintiff petitioned for a reassessment, pursuant to General Statutes § 12-418 (l); the tax commissioner affirmed the examiner's assessment in full with interest. The tax commissioner based his decision, at least in part, upon § 12-426-27 (b) (8) of the Regulations of Connecticut State Agencies which defines “telephone answering services” to include the “transmitting of telephone messages to the clients of those engaged in the business of providing such services.”

Thereafter the plaintiff filed this appeal to the Superior Court pursuant to General Statutes § 12-422. The trial court, Maloney, J., sustained the plaintiff’s appeal and found: “(1) that the plaintiff’s beeper paging system is not a ‘telephone answering service’ within the commonly approved usage of that term; (2) that the defendant commissioner’s interpretation of the law and regulations to the contrary in this case is inconsistent with his past practice; and (3) the legislature has not considered the paging system as taxable under the sales tax law . . . [and] that the plaintiff’s beeper paging system is not a ‘telephone answering service’ as that term is used in General Statutes Sec. 12-407 (2) (i) (G).” Thereafter, judgment was rendered in favor of the plaintiff. The defendant, John G. Groppo, commissioner of revenue services, filed this appeal to the Appellate Court, which was transferred to this court pursuant to Practice Book § 4023.

The principal issue raised on appeal involves the interpretation of the phrase “telephone answering services” as now contained within § 12-407 (2) (i) (G). The defendant argues that the wording of § 12-407 (2) (i) (G) is clear and unambiguous, and that, by ascribing the common, everyday meaning to the term “telephone answering services,” the one-way paging services provided by the plaintiff are clearly subject to the sales tax levied by General Statutes § 12-408 (1). The defendant also asserts that § 12-426-27 (a) and (b) (8) of the Regulations of Connecticut State Agencies support his position that the trial court erred in concluding that the service provided by the plaintiff to its subscribers “falls short of the ‘conventional telephone answering service.’ ” We disagree.

The trial court, in reaching its decision, properly conducted a de novo review of the defendant’s appeal which was filed pursuant to General Statutes § 12-422. See Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 144-45, 527 A.2d 679 (1987). “ ‘ “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book [§ 4061].” ’ ” Id., 153. In this appeal, the defendant is challenging the trial court’s construction of § 12-407 (2) (i) (G) which involves a question of law. Therefore, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. Id.; see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

At the outset, we note that taxing statutes are to be strictly construed; White Oak Corporation v. Department of Revenue Services, 198 Conn. 413, 421, 503 A.2d 582 (1986); Naylor v. Brown, 166 Conn. 581, 587, 353 A.2d 709 (1974); and statutory ambiguities in the imposition of such taxes must be resolved in favor of the taxpayer and against the taxing authority. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 588-89, 522 A.2d 771 (1987); Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987). In addition, courts must construe statutory provisions as they are written; Orticelli v. Powers, 197 Conn. 9, 13-14, 495 A.2d 1023 (1985); McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984); and in a manner so as to give effect to the apparent intent of the legislature. State v. White, 204 Conn. 410, 421, 528 A.2d 811(1987); Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987). If, however, the wording of the statute is unclear, the legislative intent must be ascertained by examining the language of the statute, its legislative history and the purpose the statute is to serve. State v. Dolphin, 203 Conn. 506, 521, 525 A.2d 509 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986).

The defendant argues that under the plain and ordinary understanding of a telephone answering service, common sense dictates that one-way paging or beeper services should be included within the meaning of “telephone answering services.” We disagree.

In order to address this claim specifically, an understanding of the plaintiffs paging or beeper services is required. A subscriber to the plaintiffs services is assigned a telephone number. One wishing to contact the subscriber dials this number on an ordinary telephone. The transmission is sent to the telephone company by wire, and telephone company equipment in turn relays the transmission by wire to a computerized switching terminal at the plaintiffs office. The switching terminal automatically and electronically relays the signal, either by radio wave or by wire, to a transmitter located on a mountain top. From there the transmitter sends out a radio signal to the paging units carried by the subscribers. The pager, which is tuned in to a special radio frequency, is activated by the transmitted radio waves.

The plaintiff offers three types of pagers. The first is a tone-only pager. When activated, it emits a beeping sound. The tone-only pager can be programmed to emit a limited number of sequence beeps to indicate to the subscriber the identity of the caller, e.g., one beep for the subscriber’s home, two beeps for subscriber’s office, etc. The second is a digital display paging unit. When activated, it will digitally display up to twenty-three characters representing the telephone number of the caller. The third pager is a tone and voice unit. When activated, it emits a beep followed by a voice message from the caller. All three units are one-way communications devices. The subscriber cannot use the pager or beeper units to respond to the caller; rather he or she must go to a separate telephone to contact the caller.

At oral argument before this court, the defendant argued that the computerized switching terminal’s response to the caller’s transmission, coupled with its subsequent relay of the signal or message to the subscriber’s pager unit, is clearly an “answer.” Therefore, the defendant argues that the one-way paging services provided by the plaintiff are “telephone answering services” under the ordinary and everyday meaning of the term. We are unpersuaded.

Webster’s Ninth New Collegiate Dictionary defines “answering service” to mean “a commercial service that answers telephone calls for its clients.” While the plaintiff’s paging or beeper services are commercial services, they do not answer telephone calls for their subscribers. Rather, they merely electronically and automatically relay the transmission to the subscriber in the same way in which the telephone company relays the caller’s signal to the plaintiff’s switching terminal. The caller does not even know if his call was received, let alone answered, if the subscriber has turned off his paging unit, is not carrying it or chooses not to respond. Further, unlike the answering service business also operated by the plaintiff that utilizes operators and telephone lines only, when a pager is activated, the subscriber responds to the caller directly and need not first call the plaintiff’s office to retrieve the caller’s identity, phone number or message. The caller’s telephone call is, therefore, not “answered” until the subscriber, through his own devices, makes contact with the caller. Accordingly, we find that the radio paging or beeper services provided by the plaintiff are not, in the ordinary understanding of the term, “telephone answering services.”

Even if the language of the statute were unclear, the state’s expansive construction cannot be reconciled with the statute’s legislative history. Prior to the adoption of No. 75-213, § 15, of the 1975 Public Acts, General Statutes §§ 12-407 (2) (i) and 12-408 (1) imposed a sales tax on, inter alia, “the sale, furnishing or service of telephone . . . services” generally. In 1975, § 12-407 (2) (i) was significantly changed by Public Acts 1975, No. 75-213, § 15. Section 15 added to § 12-407 (2) subdivisions (j) (A) through (M), to which subdivisions added an enumerated list of thirteen services that the sales tax imposed by § 12-408 (1) would apply. In such a case, “ ‘ “[ujnless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive.” ’ (Citations omitted.) State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982).” The B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 6, 490 A.2d 991 (1985). There can be no doubt that the legislature intended to expand the application of the sales tax but only to those services specified therein. See 18 H.R. Proc., Pt. 7, 1975 Sess., p. 3031. This court is not at liberty to expand the list by an expansive construction of the specific services enumerated.

A careful reading of § 12-407 (2) (j), as amended by § 15 of No. 75-213 of the 1975 Public Acts, reveals no indication that the legislature intended one-way radio paging or beeper services to be included in the list of enumerated services or to be read into the list through an expanded interpretation of the term “telephone answering services.” In fact, the wording of § 15 indicates the contrary. While § 15 expanded the scope of the sales tax to the various services enumerated, it also significantly limited the application of the sales tax to telecommunications by substituting the term “telephone answering services” for “telephone . . . services” generally. This amendment also deleted references to the following telecommunications services that were specifically subject to the sales tax in the pre-1975 version of § 12-407 (2) (i) (G): “telephone, telegraph, community antenna television and cable services.” Accordingly, we can find no evidence in the wording of § 12-407 (2) (i) (G) to indicate that the legislature intended the revenues derived from the monthly service charges on one-way radio paging or beeper services to be subject to sales tax as a “telephone answering service.”

This conclusion is further supported by the subsequent adoption of Public Acts 1986, No. 86-410, which totally revamped chapter 211, entitled “Regulated Telecommunications Service, Express, Telegraph, Cable And Community Antenna Television System Companies Tax,” and added chapter 210a, entitled “Telecommunications Service Company Tax,” both under title 12 of the General Statutes. In adopting No. 86-410 of the 1986 Public Acts, the legislature recognized the modem technological advances in telecommunications, the divestiture of American Telegraph and Telephone Company (AT&T), and the entry of new competition into the telecommunications field. See 29 H.R. Proc., Pt. 6, 1986 Sess., p. 2077. The legislature also recognized that the old tax laws that spoke in terms of wires, poles and the like were outdated. Therefore, the legislature enacted No. 86-410 of the 1986 Public Acts with the intent to redefine telecommunication services in modern terminology; 29 H.R. Proc., Pt. 6,1986 Sess., p. 2088; and “to address the new unregulated competitive and previously undefined services.” (Emphasis added.) Remarks of Senator James H. McLaughlin, 29 S. Proc., Pt. 6, 1986 Sess., p. 1938.

Chapter 210a imposes a gross receipts tax and chapter 211 imposes alternatively a gross earnings tax upon companies engaged in rendering any telecommunications service for consideration within Connecticut. See General Statutes §§ 12-255b (a) and 12-256. Both chapters specifically define telecommunications service to include, inter alia, “cellular mobile telephone or telecommunication service, specialized mobile radio and pagers and paging service, including any form of mobile two-way communication.” (Emphasis added.) General Statutes §§ 12-255a (a) and 12-256a (a). Each chapter also specifically exempts from the definition of “telecommunications service” those services or transactions enumerated in § 12-407 (2) that were already subject to the sales and use tax under § 12-408. See General Statutes §§ 12-255a and 12-256a (a) (2). In enacting No. 86-410 of the 1986 Public Acts, the legislature is presumed to have acted with knowledge of existing statutes and with an intent to create one consistent body of laws. State v. Harris, 198 Conn. 158, 168, 502 A.2d 880 (1985); Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 134, 479 A.2d 231 (1984). Therefore, at the time No. 86-410 was passed, it was clear that the legislature itself did not consider radio paging or beeper services to be encompassed within the' enumerated list of services set forth in § 12-407 (2) (j) (A) through (M). Accordingly, we conclude that the trial court did not err in finding that the term “telephone answering service” was not intended to encompass the paging or beeper services of the plaintiff.

The defendant finally argues that § 12-426-27 (b) (8) of the Regulations of Connecticut State Agencies clarifies and broadens the meaning of “telephone answering services” “by expressly providing that the transmittal of a telephone message is included in that definition.” Section 12-426-27 (b) (8) includes within the ambit of “telephone answering services” the “transmitting of telephone messages to the clients of those engaged in the business of providing such services.” This regulation would only govern this case if we were to conclude that the electronic relay of a caller’s signal by the plaintiff’s electronic switching terminal constitutes the transmission of a “telephone message.” Just as we have determined that one-way paging or beeper services are not “telephone answering services,” so it is our conclusion that they do not fall within the ordinary understanding of a “transmission” of a “telephone message.” The regulations are therefore of no avail to the defendant’s argument in the circumstances of this case. Accordingly, the trial court did not err in rendering judgment for the plaintiff.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 12-407 (2) (i) (G) provides: “ ‘Sale’ and ‘selling’ mean and include . . . the rendering of certain services for a consideration, exclusive of such services rendered by an employee for his employer, as follows . . . telephone answering services . . . .”

       General Statutes (Rev. to 1975) § 12-407 (2) (i) provides: “ ‘Sale’ and ‘selling’ mean and include . . . the sale, furnishing, or service of telephone, telegraph, community antenna television and cable services and the sale of water, gas, electricity, steam, coolants and atomic power, but not including the sale of any fuel for use as domestic heating fuel.”

       General Statutes (Rev. to 1975) § 12-407 (2), as amended by Public Acts 1975, No. 75-213, § 15, provides in pertinent part: “ ‘Sell’ and ‘selling’ mean and include . . . (j) the rendering of certain services for a consideration, exclusive of such services rendered by an employee for his employer, as follows ... (I) telephone answering services . . . .”

       Public Acts 1977, Nos. 77-370, § 1, and 77-604, § 76, deleted subdivision (j) from General Statutes (Rev. to 1977) 5 12-407 (2) and added subdivisions (i) (A) through (M) under General Statutes (Rev. to 1979) § 12-407 (2). Thus, General Statutes (Rev. to 1977) § 12-407 (2) 0 (I) now appears as § 12-407 (2) (i) (G).

       The various businesses operated by the plaintiff are separate legal entities that operate under different business names. They are all licensed and regulated by the Federal Communications Commission, and none of them is regulated by the department of public utility control for the state of Connecticut.

       General Statutes § 12-415 (7) limits a deficiency assessment period to three years from the period for which the tax was to be assessed or three years from the date the return was filed.

       “[General Statutes] Sec. 12-418. reassessments. (1) Petition for reassessment. Any person against whom an assessment is made under section 12-415 or 12-416 or any person directly interested may petition for a reassessment within thirty days after service upon such person of notice thereof. If a petition for reassessment is not filed within the thirty-day period, the assessment becomes final at the expiration of the period.”

       Section 12-426-27 (a) and (b) (8) of the Regulations of Connecticut State Agencies (Rev. to 1985) provides: “enumerated services.
      “(a) The rendering of the following enumerated services for a consideration, defined in subsection (b) of this regulation, in this state on or after July 1, 1975, shall be a sale and subject to the sales tax. Any person or entity rendering such services must register with the Commissioner of Revenue Services and must collect the tax due thereon from the purchaser. Such retailers shall pay the taxes so collected in the manner and form as other retailers licensed as such to sell tangible personal property in this state. A purchaser may issue a resale certificate only in those instances where said services are being resold without change.
      “(b) Enumerated services. . . .
      “(8) Telephone answering services.
      “Such services include transmitting of telephone messages to the clients of those engaged in the business of providing such services.”

       General Statutes § 12-422 provides: “appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418,12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court. Such citation shall be signed by the same authority, and such appeal shall be returnable at the same time and served and returned in the same manner, as is required in case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the state of Connecticut, with surety to prosecute the appeal to effect and to comply with the orders and decrees of the court in the premises. Such appeals shall be preferred cases, to be heard, unless cause appears to the contrary, at the first session, by the court or by a committee appointed by it. Said court may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the treasurer to pay the amount of such relief, with interest at the rate of six per cent per annum, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which are denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       Although not applicable here, tax statutes that grant an exemption to which the taxpayer claims an entitlement must be strictly construed against the taxpayer and in favor of the taxing authority. White Oak Corporation v. Department of Revenue Services, 198 Conn. 413, 421, 503 A.2d 582 (1986); Caldor, Inc. v. Heffernan, 183 Conn. 566, 571, 440 A.2d 767 (1981).

       At oral argument, the defendant’s attorney conceded that the commissioner makes no distinctions between the three types of paging units. All three are treated the same for the purpose of determining sales tax liability.

       The telephone answering service operated by the plaintiff is a separate legal entity and is conducted under the name “Message Center, Incorporated.” Under this service, a telephone line is run from the subscriber’s telephone to the plaintiff’s switchboard. When one calls the subscriber, the plaintiff’s switchboard rings simultaneously with the subscriber’s phone. If the subscriber does not answer his phone within a certain number of rings, the operator manning the plaintiffs switchboard manually answers the call and writes down a message for the subscriber. Later, the subscriber is either called by the operator or he himself calls into the switchboard for his messages. The plaintiff has always charged and collected sales taxes in connection with the monthly service charges to subscribers.

       Webster’s Third New International Dictionary defines “telecommunication” as “communication at a distance (as by cable, radio, telegraph, telephone, or television).”

       General Statutes § 12-255b (a) provides: “tax on gross receipts from RENDERING TELECOMMUNICATIONS SERVICE NOT SUBJECT TO RATE REGULATION OR IN MARKETS WHERE COMPETITION IS NOT PROHIBITED. APPORTIONMENT OF GROSS RECEIPTS. DEDUCTION FOR ACCESS CHARGES, (a) Any company engaged in rendering for consideration any telecommunications service- not subject to rate regulation by the Connecticut department of public utility control or if subject to such rate regulation, engaged in rendering such service in markets in which competition with respect to such service is not prohibited by law shall, for the privilege of rendering such service in this state, be subject to a tax imposed on such company at the rate of six and one-half per cent of the gross receipts of such company, subject to any deduction to which such company may be entitled under subsection (b) of this section, attributable to charges for the rendering of any such service which is: (1) rendered in its entirety within this state, (2) originated in this state and terminated in another state and with respect to which such service is charged to a telephone number, customer or account located in this state from which such service originated, or to the account of any transmission instrument in this state from which such service originated or (3) originated in another state and terminated in this state and with respect to which such service is charged to a telephone number, customer or account located in this state at which such service is terminated, or to the account of any transmission instrument in this state at which such service is terminated.”

       General Statutes § 12-256 provides: “ANNUAL TAX on GROSS earnings OF EACH COMPANY RENDERING REGULATED TELECOMMUNICATIONS SERVICE OR CONDUCTING AN EXPRESS, TELEGRAPH OR CABLE BUSINESS OR OPERATING A COMMUNITY ANTENNA TELEVISION SYSTEM. Each company engaged in rendering telecommunications service, as defined in section 12-256a, for consideration in markets subject to rate regulation by the department of public utility control and in markets in which competition is prohibited by law, such service hereinafter in this chapter referred to as ‘regulated telecommunications service,’ each express company carrying on an express business on railroads, each company conducting a telegraph or cable business and each person, association or corporation operating a community antenna television system under chapter 289, shall pay an annual tax upon the gross earnings from (1) regulated telecommunications service in this state in the case of any company rendering such service, any subscriber line charge or charges as required by the Federal Communications Commission and any access charges, as defined in subsection (e) of section 12-256a, collected by such company, (2) the lines in this state in the case of any company conducting a telegraph or cable business, provided in the case of a company conducting a telegraph business the tax imposed under this section shall only be applicable with respect to a company conducting such business, and the services offered by such company, subject to tax under this section on January 1, 1986, (3) the routes in this state in the case of any company carrying on such an express business and (4) in the case of community antenna television systems, lines and auxiliary equipment operated by it in this state. No deduction shall be allowed from such gross earnings from operations for commissions, rebates or other payments, except such refunds as arise from errors or overcharges. Each such company shall, on or before April first, annually, render to the commissioner of revenue services, under oath of its treasurer, or the person performing the duties of treasurer, or of an authorized agent or officer, a return on forms prescribed or furnished by the commissioner specifying: The name and location within this state of such company or, if it has no location within this state, where such company is located; the total amount of gross earnings from regulated telecommunications service and access charges, lines, routes, and for community antenna television systems, lines and auxiliary equipment operated by it, for the year ending the thirty-first day of December next preceding or for each lesser period of consecutive time during such year, each such year or period being in this chapter and chapters 212 and 212a called a ‘tax year’, in which business or operations were carried on in this state; the total miles of railway routes which each of the companies doing an express business was entitled to operate under contracts with railroad companies and the number of miles of such railway routes within this state on the first day and on the last day of the tax year; the total miles of wires operated by each of the telegraph or cable companies and community antenna television systems and the total miles of such wires operated within this state on the first day and on the last day of the tax year.”

       We note that one-way radio paging or beeper services which electronically relay or broadcast a radio signal from its own transmitters to a subscriber’s pager have specifically been held not to be engaged in the transmission of “telephone messages” or to be a “telephone service” despite being interconnected to land-line telephone facilities. See Illinois Consolidated Telephone Co. v. Illinois Commerce Commission, 95 Ill. 2d 142, 147-48, 447 N.E.2d 295 (1983); Radio Relay Corporation v. Public Utilities Commission, 45 Ohio St. 2d 121, 129-30, 341 N.E.2d 826 (1976).

       In its counterstatement of issues, the plaintiff claims that the trial court erred in concluding that the defendant was not estopped from collecting the sales tax on the one-way paging system. This claim arises out of the defendant’s silence, in its reply letter dated November 21,1975, with regard to the applicability of the sales tax to the plaintiffs monthly service charges on the beeper or paging service under the changes made by No. 75-213 of the 1975 Public Acts. In light of our holding above, we need not address this claim.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    Commissioner of Consumer Protection et al. v. Freedom of Information Commission et al.
    (13233)
    (13234)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued March 2
    decision released June 7, 1988

      Mark R. Kravitz, for the appellants in the first case (defendant The Jackson Newspapers, Inc., et al.).

      Constance L. Chambers, assistant general counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant in the second case (named defendant).

      Robert M. Langer, assistant attorney general, with whom were John M. Looney, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellees (plaintiffs).
   Glass, J.

This is an appeal from a decision of the trial court, M. Hennessey, J., reversing a decision of the freedom of information commission (FOIC), wherein the FOIC had ordered that the named plaintiff, the commissioner of consumer protection (commissioner), provide the defendants, The Jackson Newspapers, Inc. (Jackson Newspapers), and Joan Barbuto, with access to records regarding the distribution of controlled substances by physicians.

The underlying facts relating to this appeal are not in dispute. On April 11,1984, Joan Barbuto, a reporter for the Jackson Newspapers, wrote to the commissioner, seeking disclosure of all documents generated by compliance meetings held within the last five years pursuant to General Statutes § 4-182 (c). A compliance meeting is held when an investigation by drug control agents of the department of consumer protection reveals evidence supporting the revocation of a physician’s drug registration. The compliance meeting provides a physician with the opportunity to show that the drug control agent’s report is without foundation, and is designed to foster voluntary settlements between physicians and the department of consumer protection so as to avoid the need for formal adjudicatory proceedings.

The commissioner refused to disclose all of the information sought by Barbuto. Barbuto and Jackson Newspapers filed a formal complaint with the FOIC. After a hearing, the FOIC issued a decision ordering the commissioner to provide Barbuto and Jackson Newspapers with the requested material. The commissioner appealed that decision to the Superior Court, which sustained the appeal.

On appeal to this court, the FOIC, Jackson Newspapers and Barbuto claim that the trial court erred in holding that: (1) the Freedom of Information Act (act), General Statutes § 1-19, permits the nondisclosure of records generated by compliance meetings; (2) General Statutes § 2 la-306 is applicable to compliance meetings held pursuant to General Statutes §§ 2 la-323 and 4-182 (c); and (3) compliance meetings are not proceedings involving the question of licensure or right to practice. We find no error.

The defendants’ first claim is that the trial court erred in holding that the act permits the nondisclosure of records generated by compliance meetings. We agree.

The trial court found that the act provided a basis for the exemption of the documents in question by balancing the public’s right to have access to the information requested by Barbuto with the governmental need for confidentiality, relying on Wilson v. Freedom of Information Commission, 181 Conn. 324, 435 A.2d 353 (1980). The trial court found that the Wilson balancing test supported the exemption of the documents generated by the compliance meetings. The trial court erred in applying the balancing test to the act as a whole.

In Maher v. Freedom oflnformation Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984), we stated that “[t]he exemptions contained in § 1-19 reflect ‘a legislative intention to balance the public’s right to know what its agencies are doing, with the governmental and private needs for confidentiality. . . . [I]t is this balance of the governmental needs for confidentiality with the public right to know that must govern the interpretation and application of the Freedom of Information Act. The general rule, under the act, however, is disclosure. . . . Exceptions to that rule will be narrowly construed in light of the underlying purpose of the act . . . and the burden of proving the applicability of an exemption rests upon the agency claiming it.’ [Wilson v. Freedom of Information Commission, supra, 328-29].” Thus, Maher clarifies the fact that the Wilson balancing test applies to the exemptions to § 1-19, rather than to the act as a whole. See also State v. Januszewski, 182 Conn. 142, 170-71, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

Although there is no inherent exemption from disclosure under the act, the possibility exists that the information may fall within the state or federal law exception to § 1-19. Section 1-19 (a) provides that “[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records . . . Compliance meetings, held pursuant to General Statutes § 4-182, may therefore be exempt from the general rule of disclosure, because General Statutes § 21a-306 provides that “[information received by the . . . state department of consumer protection . . . shall not be disclosed publicly in such a manner as to identify individuals or institutions, except in a proceeding involving the question of licensure or right to practice.”

This brings us to the defendants’ second claim, which concerns the applicability of § 2 la-306 to compliance meetings. The defendants claim that the trial court erred in applying § 21a-306 to compliance meetings held pursuant to General Statutes §§ 21a-323 and 4-182 because: (1) neither § 4-182 (c) nor § 21a-323 is found in the specific chapters mentioned in § 21a-306; and (2) the records in issue are created by the department of consumer protection rather than received by it in the form of filed reports. The plaintiffs maintain that the test for whether information is protected from disclosure under § 21a-306 depends upon the chapter under which the information was collected, rather than the chapter which provides for a proceeding involving licensure. Thus, the plaintiffs argue that chapter 420b, entitled “Dependency-Producing Drugs,” is the authority from which the investigative power in § 21a-306 is derived.

Section 21a-306 further provides: “Information received by the . . . state department of consumer protection . . . through filed reports, inspection or as otherwise authorized under chapters 382 and J/.18 and [chapter 120b] shall not be disclosed publicly in such a manner as to identify individuals or institutions, except in a proceeding involving the question of licensure or right to practice.” (Emphasis added.) This section clearly refers to the inspection, record keeping and reporting provisions of those statutes. Chapter 382, pertaining to pharmacists, includes statutes authorizing the employment of inspectors; General Statutes § 20-179; and the preservation of prescription records for inspection. General Statutes § 20-184c. Chapter 418 contains similar provisions relating to food, drugs and cosmetics: investigations, inspections, records; General Statutes § 21a-116; inspection of records; General Statutes § 21a-117; and inspection of premises. General Statutes § 21a-118. Chapter 420b has similar but more restrictive requirements for dependency-producing drugs: record keeping; General Statutes §§ 2la-248, 21a-249; record requirements; General Statutes §§ 21a-254, 21a-255; and inspection of records. General Statutes §§ 21a-261, 21a-265. The plain lanquage of § 21a-306 supports the plaintiffs’ interpretation of the statutes. See Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980).

The FOIC asserts in its reply brief that the plaintiffs’ argument is not properly before this court because it is raised for the first time in this appeal. The FOIC claims that there is no evidence in the record concerning the source of the authority under which the records sought by Barbuto were generated. We disagree because we find as a matter of law that the commissioner necessarily relied, in his investigations relating to compliance hearings, on the statutes that come within the express ambit of § 2la-306.

The FOIC argues that the commissioner had another source of authority in the subpoena power conferred by § 21a-323 relating to “Controlled Substance Registration,” and contained in chapter 420c. That section does not purport, however, to grant such subpoena power except as it pertains to a formal hearing concerning possible denial, suspension, revocation or refusal to renew a controlled substance registration. In other words, § 21a-306 is consistent with the provisions of chapter 420b in conferring subpoena power for revocation and suspension proceedings. See General Statutes § 21a-275. Section 21a-323 confers no subpeona power for compliance meetings. Other provisions in chapter 420b do confer broad investigatory authority not only for dependency-producing drugs, but also for controlled substances. See, e.g., General Statutes §§ 21a-261 and 21a-265. Thus, the investigations conducted by the commissioner in conjunction with compliance meetings necessarily were conducted under authority that brings those investigations within the shelter of § 21a-306.

Even if the plaintiffs’ investigations initially fall within the nondisclosure provisions of § 21a-306, the defendants claim that they must be made public because § 21a-306 requires disclosure of information generated by “proceedings involving the question of licensure or right to practice.” The defendants urge us to overturn the conclusion of the trial court that compliance hearings do not constitute such proceedings. We disagree with the defendants and hold that for the purposes of § 2la-306 compliance meetings are not “proceedings.”

Under § 21a-306, public disclosure is not required until the initiation of “proceedings involving the question of licensure or right to practice.” Section 21a-l-20a of the Regulations of Connecticut State Agencies provides in pertinent part: “No revocation, suspension or bonding requirement of any certificate, license or registration is lawful unless prior to the institution of agency proceeding . . . the holder thereof was given the opportunity to show compliance with all lawful requirements for the retention of the certificate, license or registration.” (Emphasis added.) Thus, by its terms a compliance conference is not an agency proceeding giving rise to the requirement of public disclosure.

In support of the argument that compliance meetings are proceedings, the defendants claim that although a compliance meeting is preliminary to formal revocation proceedings, it nonetheless is a “proceeding” under the statute. The defendants claim that because “proceeding” is not specifically defined in § 21a-306 or chapter 420b, the term must be construed according to the commonly approved usage of the language, citing Caldor, Inc. v. Heffernan, 183 Conn. 566, 440 A.2d 767 (1981). The defendants’ rendition of the law is accurate, but it is inapplicable to this case where the language of the relevant statutes and regulations clearly defines the opportunity to show compliance as an event occurring prior to the initiation of a “proceeding involving the question of licensure or right to practice.” See Johnson v. Manson, 196 Conn. 309, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986). The clear and unambiguous language of these statutes leaves no room for construction nor any need to resort to the common meaning of the term “proceeding,” as urged by the defendants. See State v. James, 197 Conn. 358, 497 A.2d 402 (1985).

There is no error.

In this opinion the other justices concurred.

       The other plaintiffs are the department of consumer protection and the deputy commissioner of consumer protection.

       General Statutes § 21a-306 provides: “Information received by the department of health services, state department of consumer protection or commission of pharmacy through filed reports, inspection or as otherwise authorized under chapters 382 and 418 and this chapter shall not be disclosed publicly in such a manner as to identify individuals or institutions, except in a proceeding involving the question of licensure or right to practice.”

       General Statutes § 21a-323 provides: “Before denying, suspending, revoking or refusing to renew a registration, the commissioner shall afford the applicant an opportunity for hearing in accordance with the provisions of chapter 54. Notice of such hearing shall be given by certified mail. The commissioner may subpoena witnesses and require the production of records, papers and documents pertinent to such hearing.”

       General Statutes § 4-182 (c) provides: “No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.”

       Section 21a-l-20a of the Regulations of Connecticut State Agencies provides: “(a) No revocation, suspension or bonding requirement of any certificate, license or registration is lawful unless prior to the institution of agency proceeding, the agency gave notice by mail to the holder thereof of facts or conduct which warrant the intended action, and the holder thereof was given the opportunity to show compliance with all lawful requirements for the retention of the certificate, license or registration.
      “(b) Notification of such compliance conference shall be certified mail. Said notice shall contain:
      “(1) A statement of the time, date and place of the compliance conference;
      “(2) A reference to the statute(s) or regulation(s) allegedly violated;

        “(3) A clear and concise factual statement sufficient to inform each respondent of the facts or practices alleged to be in violation of the law; and
      “(4) A statement that each respondent may be represented by counsel.
      “(c) Compliance conferences shall be recorded but need not be transcribed, and the rules of evidence are not' applicable.
      “(d) The Commissioner shall designate a person to preside at such compliance conference. After said compliance conference, said designated presiding officer shall report in writing his recommendations to the Commissioner.
      “(e) Any agreement reached as a result of a Compliance Meeting shall not preclude the department from further proceeding against the alleged violator. If the latter party desires a formal ruling concerning the practice in question, he may submit to the Commissioner a request for declaratory ruling pursuant to Section 21a-1-10 of these regulations.”


author: Shea, J.

text:
    State of Connecticut v. Uretek, Inc., et al.
    (13183)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued April 5
    decision released June 7, 1988

      F. Timothy McNamara, with whom were Susan M. Cormier, and, on the brief, Kimberly A. Knox, for the appellants (defendants).

      James G. Clark, assistant state’s attorney, for the appellee (state).
   Shea, J.

The defendants, Uretek, Inc. (Uretek), and John Andrews, a vice-president of Uretek, were convicted by the trial court of the crime of knowingly storing hazardous waste without a permit to do so, a violation of General Statutes § 22a-131a (b). In this appeal from the judgment, the only issue is whether the court erred in concluding that there was sufficient evidence to support the finding of guilt as to each defendant. We conclude that there was sufficient evidence to support the conviction of Uretek, but that insufficient evidence was adduced before Andrews rested his case to establish his guilt. Accordingly, we find error in part and remand the case to the trial court with direction to render a judgment of acquittal in favor of Andrews.

The trial court found the following facts. From May 15, 1984, to August 22, 1984, the time period specified in both the information and the bill of particulars, Uretek was a corporation doing business in the city of New Haven and was engaged in the process of coating fabrics with urethane. Andrews was responsible for the management of the chemicals employed in this manufacturing process. On May 15,1984, and also on August 3,1984, representatives of the state department of environmental protection (DEP) inspected the Uretek premises, and interviewed several officials of that corporation, including Andrews. On August 3, 1984, agents of the DEP took a sample from each of six different fifty-five gallon drums, which were all located out-of-doors in the north yard of the Uretek premises. Each of the six samples taken was placed into two separate containers. These samples were later found to contain several hazardous chemicals that are regulated pursuant to the federal Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6901 et seq. (1982), which is specifically incorporated into General Statutes § 22a-131a (b). Including the barrels that were sampled, there were approximately 300 barrels in the north yard, fewer than ten of which were empty. All of the barrels were fifty-five gallon size drums.

As applied to the informations charging each defendant with violating its provisions, § 22a-131a (b) imposes criminal penalties upon “[a]ny person who knowingly . . . stores or disposes of any hazardous wastes without a permit required under” the RCRA. In each information, the state charged that the defendant had “knowingly stored and disposed of more than ten containers of hazardous waste without a permit to do so” in violation of the statute. The trial court concluded that each element of the offense as charged had been proved beyond a reasonable doubt for both defendants.

I

Uretek, Inc.

Uretek does not challenge the sufficiency of the evidence to establish the “knowingly” requirement of the statute. Uretek contends, however, that the state failed to meet its burden of proof beyond a reasonable doubt in regard to four other essential elements of the crime as charged in the information. It maintains that the state failed to prove: (1) that Uretek had “stored” more than fifty-five gallons of hazardous waste by keeping such materials on its premises for longer than one year; (2) that more than ten containers of hazardous waste were stored on its premises; (3) that the chemicals in the containers were “spent,” a requirement of the “hazardous waste” definition in 40 C.F.R. § 261.31, or that they were “discarded,” a requirement of such definition in 40 C.F.R. § 261.33; and (4) that more than 1000 kilograms of hazardous waste had accumulated on its premises so that the permit requirement of the RCRA and § 22a-131a (b) would be applicable. The state claims that it proved these four elements beyond a reasonable doubt.

“In reviewing claims concerning the sufficiency of the evidence, we will construe the evidence in the light most favorable to sustaining the [judgment], and will affirm that [judgment] if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984); State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981).” State v. Cates, 202 Conn. 615, 627, 522 A.2d 788 (1987).

A

STORAGE FOR MORE THAN ONE YEAR

Section 22a-131a (b) applies to a person who either “stores or disposes” of hazardous waste. The informations charged that each defendant had both “stored and disposed” of such material. The trial court concluded that the term “stored” must be related to the definitions of “short-term storage” and “long-term storage” in General Statutes § 22a-115. Section 22a-115 (5) defines “short-term storage” to mean “the holding of individual containers of hazardous waste in such a manner as not to constitute disposal of such hazardous waste.” “[A]ny facility used only for the short-term storage of hazardous waste” is excluded by General Statutes § 22a-117 (b) (3) from the application of General Statutes §§ 22a-114 through 22a-130, which pertain to the certification, construction and operation of hazardous waste facilities. The trial court, accordingly, did not rely upon short-term storage but upon its finding of long-term storage in concluding that the defendants had violated § 22a-131a (b).

Section 22a-115 (6) provides that “long-term storage” means “the holding of more than fifty-five gallons or five hundred pounds, whichever amount is greater, of hazardous waste at one site for longer than one year.” Such long-term storage without a necessary permit would constitute a basis for finding that a person had stored hazardous waste in violation of § 22a-131a (b). It would also support the finding of such a violation upon the alternative statutory ground that one had disposed of hazardous waste, because the term “disposed” is defined by § 22a-115 (3) to include “long-term storage . . . of hazardous waste” as one of several alternative methods of such disposition. Thus, the trial court properly concluded that its finding of long-term storage warranted the conclusion that Uretek had both stored and disposed of hazardous waste as the information charged, although either act would constitute a violation of § 22a-131a (b) and support the conviction. The trial court found that substantially more than ten fifty-five gallon, drums of hazardous waste had been stored in the north yard of Uretek for longer than one year for long-term storage. Uretek contends that there was insufficient evidence to support this finding.

To prove the duration of the period for which hazardous waste had been stored by Uretek, the state presented Gerald Hanahan, an inspector from the office of the chief state’s attorney, who testified that Andrews had told him on September 4,1984, that approximately 150 of the barrels in the north yard were fire-damaged virgin (brand new) stock that had been there since a fire took place at Uretek in 1979. Peter Zack, an inspector for the DEP, testified that Andrews had told him on May 15,1984, that some of the drums in the north yard were left over from a fire. Uretek introduced into evidence as an exhibit an insurance claim form in which it sought compensation for damage as a result of this 1979 fire to at least 152 drums of material, including ten drums of toluene, eight drums of methyl ethyl ketone (MEK), and fifteen drums of a “rinse solvent” that was composed either of MEK or methylene chloride.

Uretek concedes that Andrews made these admissions to Hanahan and Zack. It contends, however, that these admissions cannot be used against it because the state did not present independent evidence to establish the corpus delicti. See State v. DelVecchio, 191 Conn. 412, 427-28, 464 A.2d 813 (1983). Uretek did not object to the testimony of either Zack or Hanahan regarding these admissions, and never sought a motion for acquittal on the basis of the lack of corpus delicti evidence. Uretek’s corpus delicti claim does not implicate a fundamental constitutional right, and, therefore, this court will not review this contention. State v. George, 194 Conn. 361, 372, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

Uretek also contends that the trial court could not reasonably have found that 150 barrels of fire-damaged virgin stock remained in the north yard in 1984 in light of Richard Fiore’s testimony that he had removed some fire-damaged barrels in 1981 from Uretek. Fiore was an employee of East Coast Environmental, a licensed contractor that Uretek engaged to remove hazardous waste from its premises. Fiore testified, however, that he did not have a laboratory analysis prepared concerning the materials taken by him in 1981, and that he was unable to recall what materials he had removed at that time. We conclude that the trial court’s determination that approximately 150 drums of fire-damaged virgin stock had remained in the north yard for about four years was adequately supported by the evidence and the logical inferences drawn therefrom. State v. Cates, supra.

Including the 150 drums of fire-damaged virgin stock that had never been used, the trial court found that the Uretek north yard contained a total of 300 fifty-five gallon drums, fewer than ten of which were empty. The court also found that “30 to 40 drums that were checked were substantially full.” Subtraction of the 150 drums of unused virgin stock from the total of 300 drums left 150 drums of material that had been used by Uretek in the manufacturing process. It was from six of these barrels containing used material that the samples were taken that were found to contain hazardous chemicals. There was, however, no testimony directly specifying the length of time any of the 150 drums of used material had remained on the premises.

In the information, the state had undertaken to prove storage of “more than ten containers of hazardous waste” for more than one year and was not required to prove that any greater quantity had remained on the premises for that period. There was substantial circumstantial evidence from which the court could draw a reasonable inference that more than ten of the 150 drums of used material had been in the north yard for longer than one year. Photographs of the site introduced into evidence as exhibits showed that sumac trees, underbrush and bushes had grown around several pallets supporting four drums each. As the court found, many drums were inaccessible, and the vegetation around these drums was undisturbed. In one photograph, thirty drums may be counted that appear to be surrounded by undisturbed vegetation that the court could reasonably conclude had taken more than one year to grow. Another photograph shows fifteen drums stacked on pallets that are inaccessible by fork-lift trucks because of an accumulation of rusted pipes and other discarded items, including a lunch cart that testimony of Andrews indicated had been placed there in February, 1983, more than one year before the first inspection made by the DEP on May 15, 1984.

The defendants do not challenge the finding that Uretek generated waste at the rate of about one fifty-five gallon drum per month. The equivalent of only thirty drums of waste was removed from the entire Uretek property between May 7, 1981, and August 3,1984, a period during which approximately thirty-nine drums of waste would have been produced at the normal rate. Of these thirty-nine drums, the court could reasonably infer that only twelve had accumulated during the year preceding August 3,1984, when the DEP made its last inspection, and that the remaining twenty-seven drums, together with the balance of the 150 drums containing used materials, had been in the north yard for longer than one year.

In reviewing claims concerning the sufficiency of the evidence, this court makes no distinction between the probative force of direct and circumstantial evidence. State v. Cates, supra. Based on the amount of waste produced per month at Uretek, the amount of waste removed from its premises between May 7, 1981, and August 3, 1984, and the photographic evidence indicating the manner in which the drums had been stored, the growth of vegetation around them and their virtual inaccessibility, it was reasonable for the court to infer that substantially more than ten drums of waste had been stored in the north yard for longer than one year in addition to the 150 barrels of fire-damaged virgin stock.

B

TEN CONTAINERS

We note initially that the RCRA requires that a small quantity generator of hazardous waste producing less than 1000 kilograms per month obtain a permit only if it accumulates more than 1000 kilograms of such material. 40 C.F.R. § 261.5. It is undisputed that Uretek is a small quantity generator. Accordingly, the state alleged in the information that Uretek had stored “more than ten containers of hazardous waste without a permit to do so” on the assumption that ten full fifty-five gallon drums of the chemicals found in the six samples taken by the DEP would amount to more than 1000 kilograms of hazardous waste. The state concedes that it must prove that more than ten containers of hazardous waste were stored in the north yard for longer than one year.

Uretek contends that, even if more than ten drums were in the north yard for longer than one year, the court could not reasonably infer that more than ten of these drums contained hazardous waste when the DEP took samples from only five barrels and a container inside another.

We need not decide whether the court could reasonably infer that more than ten drums contained hazardous waste based on the six samples alone. In addition to the evidence that the six samples were taken from barrels in different locations in the north yard, Harold Hoder, Uretek’s president, testified that the material in the drums in the north yard was “almost homogeneous” and “contain[ed] the same product as the new drums.” On the basis of Hoder’s testimony, the court reached the conclusions that the substances in the north yard were homogeneous, that the reusable drums contained the same product as the new drums and that the contents of all the drums were generic.

Uretek argues that Hoder’s admissions did not provide a sufficient basis for the court to infer beyond a reasonable doubt that the other drums contained the same contents as the sampled drums. Uretek does not claim, however, that its president was uninformed in regard to the contents of the drums in the north yard. Furthermore, Hoder’s testimony is consistent with the evidence that the six barrels, which were sampled at various locations in the north yard, contained largely the same chemicals, although in different mixtures. All six samples contained ethyl benzene, ortho or mixed xylene, and MEK. Four samples contained both benzene and toluene. Four samples contained methylene chloride. There was also evidence that these waste materials had been generated in Uretek’s manufacturing process that had not changed in four years.

There was more than enough evidence for a reasonable trier of fact to conclude that more than ten of the barrels in the north yard contained essentially the same materials as found in the six samples. State v. Silano, 204 Conn. 769, 785-86, 529 A.2d 1283 (1987).

C

HAZARDOUS WASTE

Section 22a-131a (b) applies to the storage or disposition of those hazardous wastes for which a permit is required under the RCRA. The federal Environmental Protection Agency (EPA) has promulgated regulations identifying certain chemicals as hazardous under specified circumstances, of which two are pertinent to this case, 40 C.F.R. §§ 261.31 and 261.33. The trial court found that Uretek had violated § 261.31 by storing without a permit ethyl benzene, toluene and MEK. It also found that Uretek had violated § 261.33 by storing without a permit methylene chloride, MEK, toluene and trichloroethylene.

1

40 C.F.R. § 261.31

Uretek contends that there was insufficient evidence to prove that it violated § 261.31 because the state failed to prove that the solvents in the drums were “spent,” a requirement of that section. It maintains that a solvent is spent only if it cannot be reused for its original intended purpose.

The state argues that a solvent is “spent” when it has been used for its original intended purpose, and (a) it is either being discarded, so that its intended use has ceased, or (b) it chemically cannot be used again for that purpose. The state acknowledges that its proposed definition of “spent” requires a determination of the subjective intentions of the user, in contrast to the objective definition proposed by Uretek.

There is no regulation officially defining “spent” in § 261.31. The federal courts, however, routinely refer to the EPA commentary concerning the interpretation of RCRA and its regulations. Environmental Defense Fund, Inc. v. Lamphier, 714 F.2d 331, 336 (4th Cir. 1983); United States v. Waste Industries, 556 F. Sup. 1301, 1303 (E.D.N.C. 1982); O’Leary v. Moyer’s Landfill, Inc., 523 F. Sup. 642, 656-57 (E.D. Pa. 1981). The EPA has issued the following commentary in regard to § 261.31: “For those used materials which are listed [in §§ 261.31 and 261.32] or § 261.33 (e.g., spent solvents), the point at which they meet the listing description is somewhat less well-defined, but generally occurs when their intended use has ceased, and they begin to be accumulated or stored for disposal, re-use or reclamation. ” (Emphasis added.) 45 Fed. Reg. 33,095, col. 3 (1980). We note that the fire-damaged virgin stock might not fit within this definition because this material had never been “used” and thus might not fall within the “used materials” category to which the commentary pertains.

The EPA commentary indicating that solvents are spent “when their intended use has ceased, and they begin to be accumulated or stored for disposal, re-use or reclamation” is consistent with Congressional intent in this area. Congress intended that the RCRA would provide for “a ‘cradle-to-grave’ regulatory scheme for toxic materials, providing ‘nationwide protection against the dangers of hazardous waste disposal.’ H.R. Rep. No. 1491, 94th Cong., 2d Sess. 11, reprinted in 1976 U.S. Code Cong. & Ad. News 6238, 6249.” United States v. Johnson & Towers, Inc., 741 F.2d 662, 666 (3d Cir. 1984), cert. denied sub nom. Angel v. United States, 469 U.S. 1208, 105 S. Ct. 1171, 84 L. Ed. 2d 321 (1985).

“[WJhere a statute is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to ‘bizarre results’ destructive of that purpose, the former should prevail.” State v. Williams, 206 Conn. 203, 210, 536 A.2d 583 (1988). Uretek’s proposed definition of “spent” solvent would allow a generator or user of hazardous waste to store such material indefinitely as long as there is a remote possibility that it might be reused in the distant future. Such a construction of “spent” is clearly inconsistent with the Congressional goal in the RCRA of providing “cradle-to-grave” regulation of hazardous wastes.

We hold that a solvent is spent when it has been used for its original intended purpose, and it is either (a) discarded or (b) can no longer be used again for that purpose. As we have previously indicated, the 150 drums of fire-damaged virgin stock were never used and, therefore, may well fall outside the scope of § 261.31. There was ample evidence, however, that the remaining 150 barrels in the north yard had been used at some time in the manufacturing process. As explained in parts IA and B of this opinion, the court properly concluded that more than ten of these 150 barrels had been stored for longer than one year and that all these barrels contained essentially the same waste as was found in the six DEP samples. In light of Hoder’s testimony that it was “unlikely” that any barrels in the north yard would again be used in manufacturing, we conclude that the trial court did not err in finding that the materials in these barrels had been discarded and thus were “spent” under § 261.31.

The trial court based its finding that hazardous waste was contained in the 150 drums of used materials stored in the north yard of the Uretek premises upon the chemical analysis of the six samples taken on August 3, 1984. The report of this analysis indicated the presence of quantities of ethyl benzene, MEK and toluene. These chemicals are classified by § 261.31 as nonhalogenated solvents constituting “hazardous wastes from nonspecific sources” when they are “spent.” Thus, we conclude that the trial court did not err in finding that the 150 drums of used material contained chemicals constituting hazardous waste when Uretek no longer had any intention of reusing the contents of these drums in its manufacturing process.

2

40 C.F.R. § 261.33

The trial court also concluded that some additional chemicals disclosed by the analysis of the samples, benzene, methylene chloride and trichloroethylene, constituted hazardous wastes under § 261.33. These chemicals are included in this regulation concerning discarded commercial chemical products in subsection (f), but subsection (a) limits the scope of § 261.33 to “[a]ny commercial chemical product, or manufacturing chemical intermediate having the generic name listed” in subsection (f). The EPA comment upon § 261.33 (d) states that this section applies only to a substance “which consists of the commercially pure grade of the chemical, any technical grades of the chemical that are produced or marketed, and all formulations in which the chemical is the sole active ingredient.” 40 C.F.R. § 261.33 (d), comment, p. 38. The testimony of Hoder that all of the drums in the north yard held substantially the same material, when combined with the report of the analysis of the samples taken from six of those drums, indicates that a number of different chemicals mixed together were contained in the 150 barrels of used materials in the north yard. There was no testimony that any of these samples constituted a commercially pure grade of any chemical, any technical grade produced or marketed or any formulation in which the chemical was the sole active ingredient.

It is conceivable that the 150 drums of fire-damaged virgin stock in the north yard, which we have concluded might not have contained “spent” chemicals but materials that had never been used, might have included some drums of “commercially pure” grades of chemicals that would constitute hazardous waste under § 261.33 when “discarded or intended to be discarded.” The state, however, presented no evidence concerning the contents of these fire-damaged unused barrels. The state argues that from the evidence of Uretek invoices relating to purchases made in 1984 of 192 drums of toluene, 206 drums of MEK, 136 drums of methylene chloride and eight drums of trichloroethylene the inference can be drawn that the virgin stock damaged in a fire four years earlier included several “commercially pure” barrels of such chemicals because the manufacturing process remained the same. We need not consider this claim further, however, because the trial court drew no such inference but based its finding of hazardous waste under § 231.33 upon the analysis of the samples taken from the drums of used materials. The court erroneously assumed that, because the samples contained chemicals listed in § 231.33 which “were intended to be discarded,” these chemicals fell within the classification of hazardous waste without considering whether they were in a “commercially pure” form. In any event, since we have concluded that the 150 drums of used materials did contain “spent” chemicals identified as hazardous waste under § 261.31, it is immaterial whether these chemicals also fall within the hazardous waste classification of § 261.33.

The trial court determined that Uretek violated § 261,33 by discarding methylene chloride and trichloroethylene. We. conclude that this determination was erroneous because there was no evidence indicating that these two substances were discarded while in a chemically pure form, but that this error does not affect the conviction insofar as it rests upon the storage of hazardous waste falling within the § 261.31 classification.

D

PERMIT

Since § 22a-131a (b) applies only to the treatment, storage or disposition of hazardous wastes without a permit required under the RCRA, the state was obliged to prove that Uretek had accumulated more than 1000 kilograms of hazardous waste on its premises at the time of the inspection of August 3, 1984. As a “small quantity generator,” producing less than 1000 kilograms of such waste per month, Uretek would not have required a permit under the RCRA until it had accumulated more than that quantity of such waste on its premises. 40 C.F.R. § 261.5 (a) and (f).

The report of the analysis of the samples indicates that toluene and MEK, both of which chemicals are classified as hazardous waste under § 261.31, constituted all but a relatively insignificant portion of each sample. The lightest of these, MEK, weighs 366 pounds per fifty-five gallon drum. The equivalent of 1000 kilograms is 2200 pounds, which would equal the weight of 6.01 drums of MEK.

Our conclusion that the evidence supported the finding of the trial court that there were at least ten full drums of hazardous waste in the Uretek north yard for more than one year, as discussed in parts I A, B and C above, indicates that Uretek had accumulated more than 1000 kilograms of hazardous waste by August 3, 1984, and, therefore, a permit was required for that purpose. The additional finding of the court that Uretek had no permit is not disputed.

E

On the basis of all the foregoing, we hold that there was more than sufficient evidence for the trial court to conclude that each necessary element of § 22a-131a (b) had been proved beyond a reasonable doubt against Uretek. State v. Silano, supra; State v. Cates, supra.

II

Andrews filed a motion for a judgment of acquittal at the close of the state’s evidence. The court reserved its decision on the motion and denied it after the conclusion of the trial. Practice Book § 883. Andrews rested his case without offering any evidence. Uretek proceeded with its defense. It was during Uretek’s presentation that Hoder testified that all the barrels in the north yard contained essentially the same materials as were found in the six DEP samples. Because the trial court could not properly have used the testimony of Hoder in deciding whether Andrews’ motion for acquittal should have been granted, we must consider whether the conviction of Andrews may be upheld without reliance upon Hoder’s testimony. We conclude that the evidence presented by the state before Andrews rested his case was insufficient to support his conviction.

Unless the component chemicals contained in the six samples analyzed can be extrapolated to at least ten of the 150 drums of used materials in the Uretek north yard, the state cannot prevail in proving that a sufficient quantity of hazardous waste had been accumulated to require an RCRA permit or to prove that there were more than ten drums of such waste as alleged in the information. Except for Hoder’s testimony concerning the homogeneity of the contents of the drums in the north yard, the only other proof of this element of the offense was that the six samples had been taken from separate barrels at different locations in the yard. It does not appear that the court relied wholly upon this evidence in drawing its inference of the similarity of the contents of the unsampled barrels to those that were sampled. For this finding the court relied on Hoder’s testimony that the substances in the drums in the north yard were “almost homogeneous” and that the reusable drums “contain[ed] the same product as the new drums.” Accordingly, the court concluded that the contents of all the drums were generic. We need not consider, therefore, whether there was sufficient evidence, apart from Hoder’s testimony, that the six samples were representative of the remaining barrels. It is clear that the trial court rested its finding of homogeneity, not upon the evidence that the sampling was representative, but upon Hoder’s testimony that cannot be used against Andrews.

The state argues that an inference of homogeneity is also supported by evidence of purchases by Uretek of hazardous chemicals, such as those found in the samples, made between March and August, 1984. These purchases were evidenced by invoices introduced during the state’s case-in-chief. The state claims that, because there was testimony that the manufacturing process had not changed, it may be inferred that the same chemicals were contained in the drums located in the north yard for more than one year before these purchases. Again, we need not decide whether such an inference could be drawn pursuant to the standard of proof required in a criminal case. The trial court plainly drew no such inference but relied wholly on Hoder’s testimony in finding that the samples were representative. Accordingly, we hold that the court erred in denying Andrews’ motion for acquittal.

There is error in part, the judgment is set aside as to the defendant Andrews and the case is remanded to the trial court with direction to render judgment of acquittal in favor of that defendant.

In this opinion the other justices concurred.

       General Statutes § 22a-131a (b) provides: “Any person who knowingly transports hazardous waste to a facility which does not have a permit required under the Resource Conservation and Recovery Act of 1976, or who knowingly treats, stores or disposes of any hazardous wastes without a permit required under said act, or who knowingly violates any material condition or requirement of such permit, shall be fined not more than fifty thousand dollars for each day of violation or imprisoned not more than two years or both.”

       The court found that the six samples contained the following chemicals:
      “Micrograms
      per kilogram
      Sample #1: (#3096-3097)
      benzene 11,000
      ethyl benzene 60,000
      methylene chloride 6,400
      methyl ethyl ketone 140.000
      toluene 8,300,000
      ortho xylene 190.000
      Sample #2: (#3088-3089)
      benzene 17,000
      ethyl benzene 100,000
      methylene chloride 300.000
      methyl ethyl ketone 230.000. 000
      toluene 100.000. 000
      mixed xylene 340.000
      Sample #3: (#3090-3091)
      benzene 45,000
      ethyl benzene 260,000
      methylene chloride 360.000
      methyl ethyl ketone 320,000,000
      toluene 70,000,000
      trichloroethylene 5,700,000
      mixed xylenes 250.000
      Sample #4: (#3092-3093)
      benzene 3,000
      ethyl benzene 20,000
      methyl ethyl ketone 6,000,000

        toluene 47,000,000
      mixed xylenes 60,000
      Sample #5: (#3094-3095)
      ethyl benzene 85,000
      methyl ethyl ketone 88,000,000
      toluene 100,000,000
      mixed xylenes 170,000
      Sample #6: (#3098-3099)
      benzene 3,400
      ethyl benzene 260,000
      methylene chloride 95,000
      methyl ethyl ketone 65,000,000
      mixed xylenes 270,000”
      The federal Environmental Protection Agency has duly promulgated regulations pursuant to the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (1982), that identify certain chemicals as hazardous wastes. The court found that the defendants had illegally stored and disposed of ethyl benzene, toluene and methyl ethyl ketone, hazardous chemicals regulated pursuant to 40 C.F.R. § 261.31. It also found that the defendants had illegally stored and disposed of benzene, methylene chloride, methyl ethyl ketone, toluene and trichloroethylene, hazardous chemicals regulated pursuant to 40 C.F.R. § 261.33. The defendants concede that these chemicals were present in the samples, but have raised several arguments, which are examined in the text of this opinion, in support of their contention that they did not violate General Statutes § 22-131a (b). The state has conceded that there is insufficient evidence to prove that the defendants violated federal regulations concerning benzene.

       Uretek also contends that the state is precluded from establishing storage for a period of more than one year because the information and bill of particulars alleged that it had committed the offense from May 15,1984, until August 22,1984. The dates in the information, however, merely specified the period of time during which the state claimed that a violation of the statute had accrued. To prove such a violation of “long-term storage” the state was limited by the information to proving that the containers of hazardous waste on which it relied had been stored on the premises more than one year before the dates of the inspections in which those containers were found on the premises. The offense had not occurred until after the hazardous waste had been stored for more than one year.

       See footnote 2, supra.

       See footnote 2, supra.

       After August 22,1984, Uretek did use some of the materials in the north yard for a new product line. There is no evidence that Uretek intended to use these materials prior to August 23, 1984.