NANCY BURTON v. DOMINION NUCLEAR CONNECTICUT, INC., SC 18603

Judicial District of Hartford

 

      Environment; Nuclear Power; CUTPA; Whether Plaintiff has Standing under § 22a-16 of the Connecticut Environmental Protection Act; Whether Plaintiff has Standing to Bring Public Nuisance Claim. Defendant Dominion Nuclear Connecticut, Inc. (DNC), is the owner and operator of the Millstone Nuclear Power Station in Waterford.  DNC received permission from the Nuclear Regulatory Commission to increase the output of one of the Millstone power generating units by roughly seven percent.  The plaintiff brought this action under the Connecticut Environmental Protection Act (CEPA) seeking to enjoin the power "uprate," claiming it would cause unreasonable pollution by increasing both the temperature of the cooling water released into Long Island Sound and the level of radioactive waste in that water.  The plaintiff also claimed that the uprate would constitute a public nuisance and that DNC had violated the Connecticut Unfair Trade Practice Act (CUTPA) by failing to disclose the uprate's effects on the environment and on public health.  Noting that DNC's application for renewal of its wastewater discharge permit was pending before the state department of environmental protection (DEP), the trial court dismissed the plaintiff's CEPA claim, citing Connecticut Supreme Court precedent establishing that § 22a-16 of CEPA does not confer standing on one seeking to challenge the DEP's permitting procedure or the validity of an existing permit or authorization.  The court characterized the plaintiff's CEPA claim as an untenable challenge to both the DEP permit proceeding and to the Nuclear Regulatory Commission's approval of the uprate.  The court also dismissed the nuisance claim for lack of standing, ruling that the plaintiff's assertion that she used Long Island Sound for swimming and boating fell short of establishing that she was personally aggrieved by the power uprate.  Finally, the court dismissed the CUTPA claim, finding that § 42-110c (a) (1) exempts expressly permitted activities from CUTPA.   The trial court also held that the doctrines of federal preemption and exhaustion of administrative remedies served as alternate bases for dismissal of the plaintiff's claims.  On appeal, the plaintiff argues, among other things, that the trial court wrongly dismissed her CEPA claim on determining that it was premised solely on permitting issues.  She contends that she properly set forth a colorable claim of unreasonable pollution under § 22a-16 and cites Burton v. Commissioner of Environmental Protection, 291 Conn. 789 (2009), for the proposition that the fact that conduct comes within the scope of a statutory permitting scheme does not necessarily preclude one from bringing a CEPA claim that the conduct  will cause unreasonable pollution.