Opinion
No. CV 04 4000312S
June 28, 2005
MEMORANDUM OF DECISION ON APPLICATION FOR STAY
I INTRODUCTION
The captioned matter is an appeal from a decision (decision) issued by the Connecticut siting council (council). The decision was issued in response to an application (application) filed by Dominion Nuclear Connecticut, Inc. (Dominion). The application sought a certificate of environmental compatibility and public need, pursuant to General Statutes § 16-50k (all further section references are to the General Statutes), for the construction and use of a facility (dry storage facility), as that word is defined in § 16-50i(a)(3), for the dry storage of spent nuclear fuel (as opposed to storage in a deep pool of water, which is the other recognized method of storing spent nuclear fuel) on a parcel of land (Dominion's land) on which Dominion operates a nuclear powered electric generation plant (the plant). The decision granted the application.
The plaintiffs moved for a stay of the decision pursuant to § 4-183(f). The court conducted an evidentiary hearing, over several days, on that motion.
II DISCUSSION Standards For a Stay
In Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 459-60, 493 A.2d 229 (1985), the court said: "[W]e approve the `balancing of the equities' test that was used [by the trial court in granting a stay]. Among the `equities' to be placed on the scales, of course, are the general equitable considerations which are involved in the issuance of a temporary injunction to preserve the status quo pendente lite. These include the concerns specified in the federal standard . . . [,]" which the Griffin court described as:
(1) the likelihood that the appellant will prevail;
(2) the irreparability of the injury to be suffered from immediate implementation of the agency order;
(3) the effect of a stay upon other parties to the proceeding; and
(4) the public interest involved.
Id., 456.
No express authority has been found from our Appellate Court or our Supreme Court for the propositions that an applicant for a stay bears the burden of proof on factual matters, as well as the burden of demonstrating that, after a "balancing of the equities," those equities favor a stay. Nonetheless, the court concludes that, in moving for a stay, the plaintiffs assumed both of those burdens.
Standing to Move For Stay
Dominion conceded, on December 13, 2004, that the plaintiffs have standing under the Environmental Protection Act of 1971 (CEPA), § 22a-14 et seq., to prosecute their motion for stay. The council did not object to that claim of standing. The court, after reviewing the complaint and hearing the evidence, finds that the plaintiffs do, in fact, have standing to prosecute their motion for stay under CEPA.
Likelihood Plaintiffs Will Prevail on The Merits Plaintiffs' Positions
As stated in their brief, the plaintiffs ground this appeal on:
(1) the Council's legal error for failure to consider short and long term radiological risks to public health and safety and effects of the application — which included its proposal to remove spent fuel from the over packed fuel pools at a rate only to maintain "full core reserve, thus continuing the unevaluated risk of re-racked, densely packed fuel pools, and confining the storage casks to two acres instead of more broadly dispersing. This is not asking the court to "second guess" the Council but to require it as a matter of law to consider the effects postulated and which were excluded;
(2) the Council's failure to consider the long term environmental effects of maintaining a permanent nuclear waste dump outside, not shielded from view or the Atlantic ocean (Long Island Sound) by any sort of building;
(3) the participation by two Council members whose past activity raised the appearance and reality of bias or prejudgment despite timely motion for disclosure.
(Plaintiffs' Brief, dated January 21, 2004, pp. 5-6.)
The plaintiffs' brief apparently is misdated as January 21, 2004. It presumably should be dated January 21, 2005.
Defendants' Positions
The defendants claim that the first and second bases set out above are both matters over which the Nuclear Regulatory Commission (NRC) enjoys and has exercised jurisdiction, so that, under the supremacy clause of the United States constitution, the council is preempted from a concurrent regulatory role in regard to radiological risks and environmental harm. In support of that position, Dominion argues that:
The NRC regulates the storage of spent fuel at Millstone in both the spent fuel pools and in dry storage . . . The NRC promulgates regulations, issues orders and adopts licensing requirements with regard to spent fuel storage as well as security of nuclear power stations . . . The NRC conducts inspections, both announced and unannounced, and maintains three resident inspectors at Millstone on a fulltime basis . . . Any one of those inspectors can order Millstone to stop an activity if they believe safety is an issue . . . In addition, since the events of September 11, 2001, the NRC has issued multiple security orders regarding safety and security of nuclear power stations in general and dry storage systems in particular . . . Compliance with these orders was not and is not optional . . . Finally, the NRC will review and inspect Millstone's ISFSI [the acronym for the dry storage facility which is the subject of the decision] procedures and processes before any fuel is moved and will oversee the fuel movement operations at Millstone.
(Citations to transcripts and exhibits omitted.) (Dominion's Brief, dated January 31, 2005, pp. 4-5.)
As to the plaintiffs' claim of bias or prejudgment on the part of two members of the council, the plaintiffs requested that the court take testimony, pursuant to § 4-183(i), from the two members in question, and the court did so. The only evidence introduced on the issue of bias or prejudgment was that testimony, and the defendants claim that there was nothing in it which suggests there were "irregularities in procedure before the agency[,]" which must be found if the court is to reverse the decision pursuant to § 4-183(i).
Radiological Risks
The plaintiffs claim that it was error for the council to refuse to consider the radiological risks posed to the public health and safety by the storage facility. However, the United States Supreme Court has noted that "the Federal Government maintains complete control of the safety and `nuclear' aspects of energy generation." Pacific Gas and Electric Co. v. State Energy Resources Conservation Development Commission, 461 U.S. 190, 212, 103 S.Ct. 1713, 75 L.Ed. 752 (1983). Without determining the precise limits of federal preemption in this area, this court notes that both Congress and the NRC have regulated radiological risks related to nuclear facilities. Further, an examination of the actions taken by Congress and the NRC strongly suggests that the council did not enjoy authority over those risks and did not commit error in refusing to consider them. Accordingly, the court sees little likelihood that the plaintiffs will prevail on those issues.
Long-Term Environmental Effects
Whether the federal government has preempted regulatory authority over the environmental effects of nuclear facilities is a more delicate issue. As the Pacific Gas court said:
Congress has preserved the dual regulation of nuclear-powered electricity generation: the Federal Government maintains complete control of the safety and `nuclear' aspects of energy generation; the States exercise their traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like.
Id., 211-12.
Subsequent to the decision in Pacific Gas, the United States Supreme Court observed that "[the Court in Pacific Gas] took great pains to make clear that state regulation of matters directly affecting the radiological safety of nuclear-plant construction and operation, `even if enacted out of nonsafety concerns, would nevertheless [infringe upon] the NRC's exclusive authority.'" English v. General Electric Co., 496 U.S. 72, 84, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990).
To accept the plaintiffs' position that the council can regulate the environmental effects of a nuclear facility would, by extension, permit the council to veto, on the ground of environmental risk, a nuclear facility which had been approved by the NRC.
Without determining the precise boundaries of the limits imposed by federal preemption on the council's authority to refuse to approve a nuclear facility on the ground of environmental risks, the court holds that, at this early stage of this appeal, the plaintiffs have not met their burden of persuading the court that they are likely to prevail on the issue of whether the council can veto an NRC-approved facility on that ground.
Bias or Prejudgment
The plaintiffs claim that Philip Ashton, a member of the council who voted to grant the application, was disqualified from voting because of predecision contacts he had had with Dominion. The plaintiffs also claim that Dr. Edward Wilds, who was designated by the commissioner of environmental protection to sit on the council in regard to the application, was also disqualified from voting because of predecision contacts he had had with Dominion. The only evidence on either of those issues was the testimony of both Mr. Ashton and Dr. Wilds. That testimony was not sufficient to meet the plaintiffs' burden of persuading the court that they are likely to prevail on the issue of whether Mr. Ashton and/or Dr. Wilds was disqualified from acting on the application.
Such designation is authorized by § 16-50j(b).
Finding on Likelihood of Success on the Merits
In sum, it is found that the plaintiffs have not met their burden of establishing the likelihood that they will prevail on the merits of this appeal.
Irreparable Injury
The plaintiffs called Gordon Thompson as an expert witness. The transcript of the hearing on December 3, 2004 (hereinafter referred to as Tr., 12/3/04) contains the testimony of Mr. Thompson, who described his areas of expertise, relative to this appeal, as follows: "I'm an expert in the safety and security of nuclear power plants and their means of storing spent fuel." (Tr., 12/3/04, p. 9.)
Mr. Thompson testified that there now exists on Dominion's land a deep water pool (deep water pool) which is being used for the storage of spent nuclear fuel and that the dry storage facility will provide storage capacity which is incremental to that of the deep water pool. (Tr., 12/3/04, p. 19.)
At the time Mr. Thompson testified, the dry storage facility was under construction. Subsequently, the parties stipulated that construction of the dry storage facility had been completed and that some spent fuel has already been moved into it.
Counsel for the council cross-examined Mr. Thompson about whether storing spent nuclear fuel in the dry storage facility would pose greater risks than those posed by storage in the deep water pool. During that cross-examination, the following colloquy occurred:
Q. Dr. Thompson, it seems like you've demonstrated to the Court that there is a greater danger with fuel storage pools than with dry storage. Is that correct?
A. High-density compact-pool storage is a higher risk option than dry storage under current NRC regulations. I believe I said something to that effect —
Q. Yes.
A. — a little earlier.
(Tr., 12/3/04, p. 186.)
Subsequently, the following colloquy took place between counsel for the council and Mr. Thompson as to the relative risk of continuing to store spent nuclear fuel in the deep water pool as opposed to the risk of storing it in the dry storage facility:
Q. So, basically, we're talking about the next 12 months, then there would be no increased risk, given the scenarios I gave you, there would be no increased risk to the surrounding community?
A. Short-term, the risks would be roughly comparable.
(Tr., 12/3/04, p. 190.)
Finally, the following colloquy occurred between the court and counsel for the plaintiffs:
The Court: Now, you've acknowledged that there will be nothing irreparable done by the denial of the stay, isn't that so?
Ms. Sheets: Oh, you're talking about danger?
The Court: Yes Mr. Thompson said there's no greater danger to allowing the spent fuel to be transferred to the facility that's now under construction, than there would be from not allowing that transfer.
Ms. Sheets: And what he didn't get to —
The Court: And that suggests to me is that there's no irreparability that's going to flow from the denial of a stay.
Ms. Sheets: I would like to — I take your point, and I think technically that's correct . . .
(Tr., 12/3/04, p. 10.)
Effect of Stay On Other Parties
The capacity to store safely, in an emergency shut down, all fuel being used to energize the plant is known in the industry as full core reserve. Full core reserve is a wise practice because, if a situation occurs which requires the removal of all fuel from the plant, there will be a convenient facility in which that fuel can immediately be stored safely.
Dominion's maintenance schedule has called for a refueling of the plant in the first half of 2005. As part of its refueling program, Dominion must have a facility in which it can store the spent fuel which is removed from the plant in order to make room for the new fuel which is to be placed in the plant.
After the 2005 refueling of the plant has been completed, the deep water pool will have full core reserve, but no storage capacity beyond that. Accordingly, if the use of the dry storage facility were stayed the fuel now in the dry storage facility would have to the transferred back to the deep water pool, thereby encroaching on the full core reserve of the deep water pool.
The court concludes that a stay would compromise the full core reserve of the plant and potentially jeopardize its safety, thereby injuring the interests of both Dominion and its neighbors.
Public Interest
As indicated in the previous section, a stay would inhibit optimum safety practices, which would not be in the public interest.
III CONCLUSION
After a balancing of the equities, the motion for stay is denied.
G. Levine, J.