Coalition against Millstone v. Council

• Decision Date: 18 March 2008
• Docket Number: No. 17987.,17987.
• Citation: 286 Conn. 57,942 A.2d 345
• Parties: CONNECTICUT COALITION AGAINST MILLSTONE et al. v. CONNECTICUT SITING COUNCIL et al.
• Court: Connecticut Supreme Court

942 A.2d 345

286 Conn. 57

CONNECTICUT COALITION AGAINST MILLSTONE et al. v. CONNECTICUT SITING COUNCIL et al.

No. 17987.

Supreme Court of Connecticut.

Argued November 27, 2007.

Decided March 18, 2008.

Nancy Burton, pro se, with whom, on the brief, was William H. Honan, pro se, for the appellants (plaintiff William H. Honan et al.).

Robert L. Marconi, assistant attorney general, with whom was Jennifer A. Herz, certified legal intern, for the appellee (named defendant).

Bradford S. Babbitt, with whom were Kenneth C. Baldwin and, on the brief, Joey Lee Miranda, Hartford, for the appellee (defendant Dominion Nuclear Connecticut, Inc.).

NORCOTT, KATZ, PALMER, ZARELLA and SULLIVAN, Js.

KATZ, J.

The plaintiffs Nancy Burton and William H. Honan,¹ two members of the plaintiff Connecticut Coalition Against Millstone (coalition), appeal from the trial court's judgment dismissing the plaintiffs' appeal from the decision of the named defendant, the Connecticut Siting Council (council), granting a certificate of environmental compatibility and public need, pursuant to General Statutes § 16-50k,² to the defendant Dominion Nuclear Connecticut, Inc. (Dominion), for the construction of an independent spent fuel storage facility (spent storage facility)³ for spent nuclear fuel on the site of the Millstone Nuclear Power Plant (Millstone). On appeal to this court, Burton and Honan raise numerous challenges to the trial court's rulings, including that the court improperly: (1) determined that federal law preempted the council's jurisdiction to consider radiological risks and long-term environmental effects of the spent storage facility; (2) concluded that Honan lacked standing under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., to bring a claim against the council for procedural irregularities in the hearings because he had failed to show aggrievement; and (3) failed to consider their claim that the council had made findings of public need that were unsupported by the evidence. We conclude that all of the claims by Honan and Burton are without merit or are otherwise unreviewable, and, accordingly, we affirm the judgment of the trial court.

The record reveals the following procedural history and relevant facts that the council reasonably could have found. Dominion owns and operates Millstone, which is located in the town of Waterford (town). On or about August 25, 2003, Dominion applied to the council for a certificate of environmental compatibility and public need in order to build a dry storage facility for spent nuclear fuel at Millstone. Millstone, which is licensed to operate under the regulations of the Nuclear Regulatory Commission (NRC); see 10 C.F.R. § 50.10 (2007); contains three nuclear fueled electricity generating units, two of which, unit 2 and unit 3, currently are operating. At present, spent fuel from units 2 and 3 is stored "in a separate water-filled pool (wet storage) for each unit" located inside Millstone. Millstone uses wet storage to store both spent fuel and all the fuel in a reactor core in the event of the need for refueling, maintenance or emergency measures; the latter capacity is referred to as "full core reserve." Dominion sought the certificate on the ground that the dry storage facility was necessary to compensate for dwindling space in the wet storage facilities. In order to maintain the functionality of units 2 and 3, Dominion needed additional space to store spent fuel and space in order to preserve its "full core reserve. . . ."

Pursuant to General Statutes § 22a-19 (a)⁴ of the Connecticut Environmental Protection Act (CEPA), the

coalition and three of its members; see footnote 1 of this opinion; intervened in the proceedings before the council to oppose Dominion's application. The council thereafter issued a written decision outlining extensive findings of fact regarding the need for Millstone and its reliability as an electricity generation facility, spent fuel management alternatives, the siting and design of the proposed spent storage facility, potential environmental impacts of the spent storage facility, and other public health and safety concerns. First, however, with respect to the "[s]cope of its jurisdiction," the council stated: "[T]he federal government has preemptive authority over radiological health and safety issues associated with nuclear power plants. State agencies may not regulate the dry storage activities authorized by the NRC relative to radiological health and safety or impose siting standards in a manner that would frustrate or undermine NRC decisions related to the storage of spent nuclear fuel." Thereafter, the council concluded that the NRC already had established regulations permitting licensed plants to use dry storage systems for spent fuel and regulations concerning the type of dry storage systems and the siting of spent storage facilities. The council also noted that, pursuant to the Nuclear Waste Policy Act of 1982, the federal government is preparing a license application for a facility at Yucca Mountain in Nevada where spent nuclear fuel ultimately can be stored on a permanent basis.

With respect to need and reliability, the council concluded that: Millstone provided approximately 47 percent of Connecticut's actual generation of electricity; Millstone is reliable; Millstone is a near zero emissions source compared to fossil fueled facilities; and both units 2 and 3 could remain in operation until 2025 and 2035, respectively. The council concluded that alternatives to the dry storage facility — such as a "`no build'" alternative and shipment to a national repository — were not viable, at least not currently with respect to the latter.

With regard to the design, siting, and environmental impacts of the spent storage facility, the council concluded that it would be located a safe distance from residential areas, outside of a 500 year flood zone, and outside the existing tidal and inland wetlands and watercourses on the property. The council determined that the construction would have little interference with groundwater; that the design of the facility was sound; and that no endangered, threatened, or special concern species, or historic and archaeological resources would be affected. Finally, the council noted that, although the regulation of radiological safety is under the exclusive jurisdiction of the NRC, the NRC had reevaluated security requirements following the terrorist attacks of September 11, 2001, and had adopted additional security measures.

The council granted the certificate and permitted Dominion to install forty-nine horizontal storage modules in a spent storage facility to keep units 2 and 3 running until 2015 and 2025, respectively, under the conditions that, inter alia: (1) the facility would be temporary and the certificate holder would move the fuel to a national repository as soon as legally possible; (2) the certificate holder would notify the council of the renewal of the licenses for units 2 and 3 by the NRC — at which time the certificate holder could petition for additional horizontal storage modules; and (3) the certificate holder would submit annual reports on the plant's operations, information on the expansion of the spent storage facility, the status of the federal repository and a five year projection on the spent fuel storage requirements of Millstone.

Pursuant to certain provisions of the UAPA, the Public Utility Environmental Standards Act and CEPA, General Statutes §§ 4-183, 16-50q⁵ and 22a-19 (a) respectively, the plaintiff intervenors then appealed to the trial court from the council's decision granting the certificate. The plaintiffs contended that the council's decision was illegal, arbitrary and capricious. The plaintiffs alleged that the council improperly had, inter alia: found a public need without substantial evidence; failed to consider adequately "the nature of the environmental impacts"; and construed narrowly "its jurisdiction to preclude consideration of issues related to radiological impacts and consequences." The plaintiffs also alleged procedural irregularities in the proceedings before the council, including a claim that council members Philip Ashton and Edward Wilds improperly had failed to disqualify themselves despite their past connections with Millstone and Dominion, respectively.⁶

Thereafter, the plaintiffs moved to stay the council's orders permitting Dominion to proceed with construction, pending the outcome of the appeal, and the defendants moved to dismiss the plaintiffs' appeal. Following a hearing on the motion to stay, the court denied the plaintiffs' request on the ground that they were unlikely to prevail on the merits of their claims.⁷ While the motion to stay was pending, the plaintiffs also moved for a temporary restraining order against the council's decision. By stipulation of the parties, the trial court deemed the motion for a restraining order moot because it concerned substantially the same issues as the motion to stay.

At this point, Burton intervened in the action, pursuant to § 22a-19 (a), appearing pro se.⁸ Thereafter, the trial court granted in part and denied in part the defendants' motion to dismiss the plaintiffs' appeal. The trial court first noted that it was declining to address some of the plaintiffs' claims because they had failed to brief them adequately. The trial court then concluded that federal law preempted the council from considering the radiological risks and the long-term environmental effects of the project and, therefore, dismissed the plaintiffs' claims that the council improperly had failed to consider these issues. With respect to the claim of bias against council members Ashton and Wilds, the court concluded that the plaintiffs Geralyn Cote Winslow and Honan lacked the requisite aggrievement to have standing to bring that claim under the UAPA.⁹ Specifically, the court concluded that the spent...