Burton v. Dep't of Envtl. Prot.

• Citation: 337 Conn. 781,256 A.3d 655
• Decision Date: 21 January 2021
• Docket Number: SC 20466
• Parties: Nancy BURTON v. DEPARTMENT OF ENVIRONMENTAL PROTECTION et al. Nancy Burton v. Commissioner of Environmental Protection et al.
• Court: Connecticut Supreme Court

337 Conn. 781

256 A.3d 655

Nancy BURTON

v.DEPARTMENT OF ENVIRONMENTAL PROTECTION et al.

Nancy Burton

v.Commissioner of Environmental Protection et al.

SC 20466

Supreme Court of Connecticut.

Argued September 10, 2020

Officially released January 21, 2021^*

Nancy Burton, self-represented, the appellant (plaintiff).

Matthew I. Levine, assistant attorney general, with whom were Daniel M. Salton, assistant attorney general, and, on the brief, William Tong, attorney general, and Claire E. Kindall, solicitor general, for the appellees (named defendants in the first and second cases).

Elizabeth C. Barton, with whom were Harold M. Blinderman and, on the brief, Taylor C. Amato, Hartford, for the appellee (defendant Dominion Nuclear Connecticut, Inc.).

Robinson, C.J., and McDonald, Mullins, Kahn and Keller, Js.

McDONALD, J.

This case comes to us for the third time following lengthy and highly contested litigation. The plaintiff, Nancy Burton, brought an action under the Connecticut Environmental Protection Act of 1971 (CEPA), General Statutes § 22a-14 et seq. , against the defendants, the Commissioner of Environmental Protection ¹ and Dominion Nuclear Connecticut, Inc., and an administrative appeal under General Statutes § 4-183 (a) against the defendants, the Department of Environmental Protection² and Dominion. The actions, now consolidated, claim, in part, that the operation of the Millstone Nuclear Power Station (plant), which is owned and operated by Dominion, is causing unreasonable pollution of the waters of the state in violation of CEPA. Specifically, the plaintiff challenged the department's decision to issue a National Pollutant Discharge Elimination System permit to Dominion to authorize the intake and discharge of water by the plant, claiming that the permit renewal proceeding was inadequate to protect the rights recognized by CEPA. The trial court previously dismissed the plaintiff's CEPA action for lack of standing, which this court reversed in Burton v. Commissioner of Environmental Protection , 291 Conn. 789, 970 A.2d 640 (2009) ( Burton I ). Thereafter, the trial court again dismissed the plaintiff's CEPA action, this time concluding that the action was moot because the permit renewal proceeding had terminated. This court reversed that decision in Burton v. Commissioner of Environmental Protection , 323 Conn. 668, 150 A.3d 666 (2016) ( Burton II ). On remand from Burton II , the trial court conducted a hearing on the merits of the plaintiff's CEPA claim and administrative appeal and rendered judgments in favor of the defendants. The plaintiff now appeals from those judgments, claiming, among other things, that the trial court incorrectly concluded that she failed to prove that the administrative proceeding was inadequate and the operation of the plant would result in unreasonable pollution.

Our decisions in Burton I and Burton II , as supplemented by the record, set forth the following relevant facts and procedural history. The plant is a nuclear power facility located in Waterford. The plant has a once-through cooling system in which it draws water from Niantic Bay, cycles it once through the plant, then discharges the hot water into the Long Island Sound. The plaintiff alleges that this process draws approximately two billion gallons of water per day. These activities are authorized by a permit that the department issued to the owner of the plant—currently, Dominion—pursuant to the federal Clean Water Act, 33 U.S.C. § 1251 et seq.³

In 1992, the department issued a five year permit authorizing the plant's water intakes and discharges. After it expired, the plant continued to operate under that permit's terms while the department processed Dominion's timely permit renewal application pursuant to General Statutes § 4-182 (b). In 2006, the department issued a notice of tentative determination to renew the permit, which triggered the public aspect of the permit renewal proceeding. The plaintiff filed a timely notice of intervention in the permit renewal proceeding pursuant to General Statutes (Rev. to 2005) § 22a-19, as amended by No. 06-196, § 256, of the 2006 Public Acts.⁴

She claimed, among other things, that the plant's operation, as permitted, would result in unreasonable pollution because it would "entrain and impinge [marine life], a natural resource of vital import[ance] to the state"; (internal quotation marks omitted) Burton v. Commissioner of Environmental Protection , supra, 291 Conn. at 794, 970 A.2d 640 ; and "continuously release vast quantities of hot water [in]to the Long Island Sound ...." (Internal quotation marks omitted.) Id., at 794–95, 970 A.2d 640. She claimed that these activities would "continue the process by which indigenous fish stocks have been devastated"; (internal quotation marks omitted) id., at 794, 970 A.2d 640 ; and that converting the plant's current cooling system to a closed-cycle cooling system "would virtually eliminate waterborne adverse impacts to the marine environment ...." (Internal quotation marks omitted.) Id., at 795, 970 A.2d 640. The hearing officer allowed the plaintiff to intervene on certain claims but precluded numerous other claims that the plaintiff raised concerning Dominion's and the department's alleged collusion and illegal activities, as well as the plant's alleged radioactive pollution. At every stage of the proceedings, the plaintiff has argued that the plant should convert to a closed-cycle cooling system. This cooling system would recirculate the water used to cool the plant and result in significantly less water intake and discharge. See, e.g., Entergy Corp. v. Riverkeeper, Inc. , 556 U.S. 208, 214 n.2, 129 S. Ct. 1498, 173 L. Ed. 2d 369 (2009).

In 2007, while the permit renewal proceeding was ongoing, the plaintiff brought the first action against the commissioner under CEPA, General Statutes § 22a-16.⁵ She claimed, among other things, that (1) the permit renewal proceeding was inadequate to protect the rights recognized by CEPA, and (2) the current operation of the plant would result in unreasonable pollution. She sought, among other remedies, an injunction requiring the plant to convert to a closed-cycle cooling system. The trial court dismissed this action, holding that the plaintiff lacked standing under § 22a-16 because her claim arose from a permitting proceeding. The plaintiff appealed, and this court reversed. We concluded that the plaintiff had standing for her claim under § 22a-16 because her complaint "sets forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from [the plant's] operation." Burton v. Commissioner of Environmental Protection , supra, 291 Conn. at 804, 970 A.2d 640. We also reasoned that the ongoing permit renewal proceeding did not preclude the plaintiff's action when, as here, the plaintiff claimed "that the permit renewal proceeding is inadequate to protect the rights recognized by [CEPA] ...." Id., at 812, 970 A.2d 640. We remanded the case, directing the trial court to afford the plaintiff an opportunity to establish that the permit renewal proceeding was inadequate to protect the rights recognized by CEPA and, if appropriate, to stay that administrative proceeding. Id., at 813, 970 A.2d 640.

Meanwhile, the permit renewal proceeding continued. In 2008, the department introduced a revised draft permit, which was the product of negotiations between Dominion and various environmental organizations that had also intervened in the administrative proceeding. The department conducted an evidentiary hearing on the permit renewal over the course of eighteen days in January and February, 2009. During the hearing, the plaintiff offered the testimony of two fact witnesses, including herself. She also extensively cross-examined all of Dominion's and the department's witnesses. Additionally, the plaintiff offered approximately sixty-one exhibits, one of which was initially admitted as a full exhibit but was subsequently excluded.

In 2010, the hearing officer issued her proposed final decision⁶ pursuant to General Statutes (Rev. to 2009) § 4-179 (c), in which she recommended that the department issue the revised draft permit. The plaintiff filed exceptions to the proposed final decision. The department's deputy commissioner, who was charged with rendering a final decision on the contested permit renewal, rejected the plaintiff's arguments. Thereafter, the deputy commissioner issued the permit.⁷

The 2010 permit is the center of this dispute. The Clean Water Act required the department to determine, in its best professional judgment, that the plant's cooling system, as permitted, reflects "the best technology available [BTA] for minimizing adverse environmental impact." 33 U.S.C. § 1326 (b) (2018) ; see Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency , 822 F.2d 104, 111 (D.C. Cir. 1987) ("[i]f no national standards have been promulgated ... the permit writer is authorized to use, on a case-by-case basis, [the permit writer's] ‘best professional judgment’ to impose" applicable effluent limitations that comply with Clean Water Act). The 2010 permit evaluated the operation of the plant's cooling system and concluded that it did not reflect the BTA. The permit recognized that requiring the plant to convert to a closed-cycle cooling system, as sought by the plaintiff, would reflect the BTA, but the permit declined to require the plant to convert to that cooling system because the department could not evaluate the feasibility of such a requirement. Instead, the permit imposed a series of other technological requirements to mitigate the current cooling system's environmental impact. The permit also required specific studies to ascertain the feasibility of converting the plant to a closed-cycle cooling system, the results of which may trigger a "subsequent BTA determination by the commissioner ...."

In evaluating...