Nancy Burton v. Connecticut Siting Council et al. (2014)

MEMORANDUM OF DECISION

The Millstone Nuclear Power Station (Millstone), located in Waterford, Connecticut, is operated by Dominion Nuclear Connecticut, Inc. (Dominion), one of the defendants in this case.   In 2004 its codefendant, the Connecticut Siting Council (council), approved Dominion's application to make infrastructure and site changes at Millstone that would allow it to store spent nuclear fuel on-site in concrete storage modules.   Although the site, as modified, would accommodate 135 of these modules, the council approved installation of only 49 in 2004.   On May 2, 2013 the council approved Dominion's application to accomplish further site changes that would, inter alia, give Dominion the capacity to install the remaining 86 storage modules.

The plaintiff Nancy Burton intervened in the 2013 proceedings before the council, pursuant to General Statutes § 22a–19, the Connecticut Environmental Protection Act (CEPA), just as she had in 2004, and, according to her complaint, “participated through submission of interrogatories, cross examination, direct testimony and the submission of various exhibits and motions.”

This case is the plaintiff's appeal from the 2013 decision of the council, in which Ms. Burton seeks to have the court vacate the council's decision.¹  The council and Dominion have moved to dismiss the action on the ground that the plaintiff's operative complaint ² fails to allege facts that would give her standing either as a party classically aggrieved by the Council's decision under the UAPA or under the CEPA.

I

To have standing to challenge the Council's decision under the UAPA the plaintiff must be “classically aggrieved” by that decision.   Without aggrievement she has no standing, and without a plaintiff with standing the court has no jurisdiction.   To survive the defendant's motions the plaintiff's complaint must allege facts that show her “specific, personal and legal interest in the subject matter of the (Council's) decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole.”  Canty v. Otto, 304 Conn. 546, 556 (2012).

The sole allegation in the plaintiff's operative complaint bearing on her standing to challenge the Council's decision appears in paragraph 5:  “The plaintiff, Nancy Burton, owns certain property located in Mystic, Connecticut, at a distance of approximately ten (10) miles downwind from Millstone.” ³  Considering that the Council's decision had to do with structural changes in the physical plant at Millstone, the claim that she lives ten miles downwind from Millstone fails to state a “specific, personal and legal interest” in that decision.   She alleges no facts that would establish any adverse effects from the approved structural changes on persons living ten miles downwind from Millstone, let alone on herself personally and individually.   The court recognizes that the structural changes approved by the council will enable Dominion to expand Millstone's capacity to store spent nuclear fuel on-site, but Ms. Burton's complaint fails even to state how her residence ten miles downwind gives her a “specific, personal and legal interest” in that eventuality.

Thus, her complaint fails to satisfy the requirements for alleging classical aggrievement and establishing her standing under the UAPA to appeal from the Council's decision.⁴

II

The defendants acknowledge that the plaintiff is statutorily aggrieved under CEPA. See General Statutes § 22a–19(a).   But, the issues that can be raised under § 22a–19 are limited, they argue, to substantive environmental issues within the jurisdiction of the council, not procedural issues, and not issues of nuclear safety, which are preempted by federal law.   Because the plaintiff's complaint attacks the procedures of the council in passing on Dominion's request, and does not raise substantive environmental concerns within the jurisdiction of the council, or raises issues which are within the exclusive jurisdiction of the U.S. Nuclear Regulatory Commission (NRC), they are not issues over which this court has jurisdiction under § 22a–19, the defendants conclude.

These arguments of the defendants are well-supported by recent decisions of the Connecticut Supreme Court.  “We ․ have consistently acknowledged ․ that an intervenor's standing pursuant to § 22a–19 strictly is limited to challenging only environmental issues covered by the statute and only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene.”  Pond View, LLC v. Planning & Zoning Commission of Monroe, 288 Conn. 143, 157 (2008) (Internal quotation marks and citations omitted.).  “The intervenors have cited no case, and we have found none, in which this court has permitted environmental intervenors to raise purely procedural issues when the only basis for standing is § 22a–19.”  Id., 159.  “In light of the federal legislation and regulations, and the Supreme Court's decisions interpreting them, we conclude that Congress impliedly intended to occupy the field of radiological risks and environmentally related effects of the storage of spent nuclear fuel ․” Conn. Coalition against Millstone v. Conn. Siting Council, 286 Conn. 57, 77 (2008).  “Accordingly, with respect to environmental concerns, we conclude that the council's jurisdiction is limited to nonnuclear environmental effects.”  Id., 79.

The question for the court is whether the grounds alleged by the plaintiff for vacating the council's decision are those permitted under § 22a–19.   Those grounds are:

a. the council “lacked a proper and adequate basis in fact” to make its decision;

b. the council relied upon information supplied by Dominion that “it knew to be deliberately misleading and inaccurate”;

c. the council “failed to adequately consider the environmental and health implications and consequences of [Dominion's] application”;

d. the council “manifested bias, prejudice and predetermination of the application”;

e.  Edward C. Wilds, the DEEP designee on the council, had a conflict of interest that he failed to disclose, and he improperly influenced other members of the council;

f. the council acted prematurely in approving the application in advance of the NRC's creation of an environmental impact statement for on-site storage of nuclear waste;

g. the council's decision violates its earlier decision not to allow permanent storage of spent nuclear fuel at Millstone;

h. Dominion failed to demonstrate a factual basis for the council to find a need for the modifications requested in the application;

i. the council's decision is in conflict with its own analysis of Connecticut's surplus power, which negates the need for Millstone's generation of electricity.   See Second Amended Complaint (# 102), ¶ 12.

The plaintiff's first and second grounds for appeal, as well as her fourth, fifth, sixth and seventh grounds, on their face raise procedural issues not substantive environmental concerns and are not cognizable in an appeal by an intervenor under § 22a–19.   Her eighth ground for appeal, if meant to claim that Dominion failed to make a record of a need for the modifications it sought, is no different than her first ground, that the council acted without a basis in fact, and is merely procedural;  if meant to claim that there is not a need for the modifications sought, it raises an issue outside the jurisdiction of the council.   The ninth ground for appeal, concerning the state's need for Millstone to continue to generate electric power is well beyond the council's jurisdiction.   Cf. New Haven v. Conn. Siting Council, Superior Court, judicial district of New Britain, Docket No. CV 02 0513195 (Aug. 21, 2002) [33 Conn. L. Rptr. 187].

Moreover, two of the plaintiff's grounds for vacating the council's decision are worded in such a way as to raise issues that are preempted by federal law.   See grounds (f) and (g), supra.

This leaves plaintiff's third ground for vacating the council's decision;  viz., that the council “failed to adequately consider the environmental and health implications and consequences of [Dominion's] application.”   This allegation, however, runs afoul of the Supreme Court's decision in Windels v. Environmental Protection Commission, 284 Conn. 268, 289–90 (2007).   “Although a plaintiff seeking to assert a claim under [§ 22a–19] need not prove his case in order to survive a motion to dismiss, he nevertheless must articulate a colorable claim of unreasonable pollution, impairment or destruction of the environment ․ A complaint does not sufficiently allege standing [however] by merely reciting the provisions of § [22a–19], but must set forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities unless remedial measures are taken.”  (Internal quotation marks omitted.)   See also Finley v. Inland Wetlands Commission, 289 Conn. 12, 35 (2008).   Ms. Burton's statement of her third ground of appeal alleges no facts whatever;  therefore, it is insufficient as a matter of law to survive this motion to dismiss.⁵

III

Because the plaintiff's complaint fails to establish her standing to challenge the council's decision under either the UAPA or the CEPA, the court lacks jurisdiction of her appeal, and the defendants' motions to dismiss must be GRANTED.

BY THE COURT

Joseph M. Shortall

Judge Trial Referee

FOOTNOTES

FN1. The plaintiff does not state whether she is appealing under the Uniform Administrative Act (UAPA) or CEPA. The court will address the standing issues arising under both Acts..  FN1. The plaintiff does not state whether she is appealing under the Uniform Administrative Act (UAPA) or CEPA. The court will address the standing issues arising under both Acts.

FN2. The operative complaint is the plaintiff's second amended complaint.  (Docket entry # 102.)   After the defendants filed their motions to dismiss, raising the issue of the plaintiff's standing and the court's subject matter jurisdiction, the plaintiff requested permission to amend her complaint.   The proposed amended complaint expanded on the allegations in the operative complaint intended to state the basis for plaintiff's claim of classical aggrievement under the UAPA. (# 115.)  The court denied plaintiff's request to amend, applying the well-established “jurisdiction first” rule.   See, e.g., Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6 (2003)..  FN2. The operative complaint is the plaintiff's second amended complaint.  (Docket entry # 102.)   After the defendants filed their motions to dismiss, raising the issue of the plaintiff's standing and the court's subject matter jurisdiction, the plaintiff requested permission to amend her complaint.   The proposed amended complaint expanded on the allegations in the operative complaint intended to state the basis for plaintiff's claim of classical aggrievement under the UAPA. (# 115.)  The court denied plaintiff's request to amend, applying the well-established “jurisdiction first” rule.   See, e.g., Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6 (2003).

FN3. The plaintiff also alleges that she “intervened in the proceedings” before the Council, but party status in an administrative proceeding does not, all by itself, confer aggrievement on one appealing from an administrative decision.  Concerned Citizens for the Preservation of Watertown, Inc. v. Planning & Zoning Commission of Watertown, 118 Conn.App. 337, 344 (2009)..  FN3. The plaintiff also alleges that she “intervened in the proceedings” before the Council, but party status in an administrative proceeding does not, all by itself, confer aggrievement on one appealing from an administrative decision.  Concerned Citizens for the Preservation of Watertown, Inc. v. Planning & Zoning Commission of Watertown, 118 Conn.App. 337, 344 (2009).

FN4. The court notes that, in her objection to the motions to dismiss (# 114), the plaintiff does not address the defendants' attack on the operative complaint's failure to show that she is classically aggrieved.   Rather, she argues from the allegations in her proposed third amended complaint that she has satisfied the pleading requirements for classical aggrievement and relies on her intervenor status in the proceedings before the Council.   As pointed out earlier, however, intervenor status does not equate to aggrievement under the UAPA;  see p. 3 n.3, supra;  and the court denied her request to amend the operative complaint.   See p. 2 n.2, supra..  FN4. The court notes that, in her objection to the motions to dismiss (# 114), the plaintiff does not address the defendants' attack on the operative complaint's failure to show that she is classically aggrieved.   Rather, she argues from the allegations in her proposed third amended complaint that she has satisfied the pleading requirements for classical aggrievement and relies on her intervenor status in the proceedings before the Council.   As pointed out earlier, however, intervenor status does not equate to aggrievement under the UAPA;  see p. 3 n.3, supra;  and the court denied her request to amend the operative complaint.   See p. 2 n.2, supra.

FN5. Ms. Burton claims also to have standing pursuant to General Statutes § 16–50q, the judicial review provision of the Public Utility Environmental Standards Act (PUESA).   That provision, however, incorporates the UAPA's requirement that an appellant show classical aggrievement, as the Appellate Court has specifically held in Brouillard v. Connecticut Siting Council, 133 Conn.App. 851, 857 (2012).   As previously noted;  see part I, supra;  Ms. Burton's complaint falls well short of what is required to show classical aggrievement..  FN5. Ms. Burton claims also to have standing pursuant to General Statutes § 16–50q, the judicial review provision of the Public Utility Environmental Standards Act (PUESA).   That provision, however, incorporates the UAPA's requirement that an appellant show classical aggrievement, as the Appellate Court has specifically held in Brouillard v. Connecticut Siting Council, 133 Conn.App. 851, 857 (2012).   As previously noted;  see part I, supra;  Ms. Burton's complaint falls well short of what is required to show classical aggrievement.

Shortall, Joseph M., J.T.R.