CONNECTICUT
COALITION AGAINST MILLSTONE For Immediate
Release: April 12, 2005
Copyright 2005 The New York Times Company STOP THE MILLSTONE NUKE WASTE DUMP
COALITION CALLS
ON STATE TO REVOKE GRANT
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ANTI-MILLSTONE COALITION CELEBRATES 20 MONTHS
IN MYSTIC; June 18, 2001 Contact: Nancy Burton 203-938-3952 Mystic - The Connecticut Coalition Against Millstone will
have a public celebration and farewell ceremony on Saturday,
June 23, to mark its 20 months of operations at 13 Water Street
in downtown Mystic. |
ARTHUR J. ROCQUE, JR., :
COMMISSIONER, DEPARTMENT:
OF ENVIRONMENTAL :
PROTECTION, ET AL. : MARCH 30, 2001
PETITION FOR CERTIFICATION ON DIRECT APPEAL ON QUESTIONS
INVOLVING THE PUBLIC INTEREST AND APPLICATION FOR EMERGENCY STAY
The plaintiffs petition the Supreme Court for direct appeal on a question involving the public interest pursuant to Conn. Gen. Stat. Section 52-265a and they hereby seek an emergency stay.
Questions Presented for Review:
The plaintiffs present the following issue and question of law:
Whether the trial court erred in denying the plaintiffs'
emergency application for a temporary restraining order
to enjoin the transfer of an expired environmental discharge
permit and an illegally issued emergency authorization to
Dominion Nuclear Connecticut, Inc., a company without assets,
to operate the Millstone Nuclear Power Station.
Basis for Certification:
This petition involves the knowing and wilful discharge into
the waters of the state of significant quantities of radioactive
isotopes known to cause genetic damage and chemical carcinogens
known to cause cancer in all living things.
This petition involves the health and safety of the community
residing in
immediate proximity of the Millstone Nuclear Power Station in
Waterford, Connecticut, where clusters of cancer incidence, illness
and human mortality have been identified along the shoreline within
a one-mile range of the facility.
This petition involves the protection of the public trust in the
environment of the Long Island Sound.
This petition involves the issuance and transfer of permits for
such deadly discharges in wilful and knowing violation of the
law of the State of Connecticut by the defendant, Commissioner
of the Department of Environmental Protection ("the Commissioner").
This petition involves the Commissioner's issuance of a transfer
of expired and illegal permits for operations of the Millstone
Nuclear Power Station, the most dangerous and trouble-plagued
nuclear facility in the Northeast, to a recently formed limited
liability company without assets which has no experience in operating
a nuclear facility and which as a direct result of such transfer
will have potential to contaminate and devastate a wide area of
the State of Connecticut forever.
This petition involves the improper conduct of the defendant,
Northeast Nuclear Energy Company ("NNECO"), in conjunction
with a judge of the Superior Court, resulting in an ex parte order
vacating an emergency hearing on such issues for the purpose of
facilitating a transfer of such permits to promote the economic
advantage of NNECO and DNC to the clear immediate and long-term
detriment of the public.
This petition involves the conduct of a Superior Court judge in
(a) denying the plaintiffs their offer into evidence of a map
prepared by a long-time resident identifying a ring of cancer
clusters lining Niantic Bay within a one-mile range of Millstone;
(b) denying the plaintiffs the opportunity to call the Commissioner,
a subpoenaed witness, to present evidence of his knowing, wilful
and ongoing violation of the law in this matter; (c) denying the
plaintiffs the opportunity to present argument as a penalty for
moving for mistrial based on such evidentiary rulings, in consequence
of which the trial court relied on erroneous factual and legal
assertions advanced by the defendants.
The public interest compels immediate emergency review of the
trial court decision denying the plaintiffs' application for a
temporary restraining order and a stay of the transfer pending
further adjudication of this case on its merits.
Summary of the Case
The plaintiffs brought this action on March 7, 2001 to enjoin
the defendants from discharging deadly waste generated by the
Millstone nuclear reactors, consisting of a wide range of radioisotopes,
known to cause genetic damage, and carcinogenic chemicals, known
to cause cancer in all living things, into the Long Island Sound.
The complaint alleges that the discharge of such poisons is causing
irreparable harm for which the plaintiffs lack an adequate remedy
at law.
The complaint alleges that the Commissioner is about to issue
an order transferring the expired Millstone discharge permit and
associated emergency permit waivers from NNECO to DNC pursuant
to DNC's request for such permit transfer filed with the Commissioner
on February 1, 2001.
On March 19, 2001, the trial court (Schuman, J.) twice on the
record before the assembled parties ordered a hearing to take
place prior to March 30 on the plaintiffs' application for temporary
restraining order, given what the court considered to be the "important"
nature of the case.
Thereupon, all parties and their counsel agreed to March 27 as
a suitable date for a hearing on the TRO application and it was
accordingly set down for hearing by the caseflow office for March
27.
Notwithstanding such order entered on the record in their presence,
Attorney Elizabeth C. Barton, representing NNECO, and other defendants'
counsel, met ex parte on March 19, 2001 with Hon. John Langenbach
regarding this case without the knowledge or consent of the plaintiffs
or their counsel.
On March 20, 2001, the caseflow office of the Superior Court,
Judicial District of Hartford, served notice upon the plaintiffs
that, per order of Judge Langenbach, the hearing scheduled for
March 27 would not take place. Following receipt of a letter addressed
to Judge Langenbach by the plaintiffs per the suggestion of the
caseflow office, the hearing was ordered reinstated.
At hearing before Judge Schuman on March 27, the trial court suggested
that the plaintiffs begin their presentation of evidence by calling
their two experts. The plaintiffs did so.
The plaintiffs first called Dr. Christopher C. Busby, of Wales,
UK, a chemical physicist who has been engaged by the Irish Government
to assess cancer clusters in the human population residing in
coastal communities near nuclear facilities in England and who
has prior experience in such matters.
Dr. Busby testified that records maintained by the United Nations
establish that for major representative releases of radionuclides,
Millstone has the worst record of all pressurized water reactors
in the United States. For example, Millstone releases 30 per cent
of the total cobalt-60 released by all similar reactors in the
country. For example, Millstone releases 26 percent of the total
cesium-137 discharges from the 57 similar U.S. reactors.
Dr. Busby testified that the Millstone radioactive and toxic discharges
are known to cause genetic damage and cancer mortality in all
living things exposed to them and that risk models of health effects
from exposure to low level ionizing radiation such as is released
by Millstone understate the risk 100 fold according to his studies
and the researches of others. He further testified as to his opinion,
based on pertinent data regarding Millstone discharges and tidal
flows and currents in the Niantic Bay area, that Millstone discharges
are strongly associated with evidence of cancer clusters along
the Niantic Bay shoreline facing Millstone. He further testified
that synergies between radioactive isotopes and carcinogenic chemicals
may exacerbate the harm to living cells which would occur from
exposure to either in isolation from the other. Finally, Dr. Busby
testified that genetic damage to living cells constitutes a form
of irreparable harm.
The plaintiffs next presented Dr. John Harshbarger, Director of
the Tumor Registry of Lower Animals at the George Washington University
Medical Center and formerly with the Smithsonian Institution.
For more than thirty-five (35) years, Dr. Harshbarger has evaluated
tumors in fish and other species. He has testified as a renowned
expert before the United States Congress about cancer epidemics
in fish populations exposed to toxic chemicals. Dr. Harshbarger
testified that chemicals associated with Millstone discharges
are known cancer-causing agents in fish. He testified about the
phenomenon whereby bottom-feeding fish consume worms inhabiting
muddy sediment where such chemicals are deposited and how the
poisons ascend the food chain to the point of human consumption.
The plaintiffs offered the testimony of Billie Staub, a mother
and longtime resident of Niantic, to establish that clusters of
cancer incidences are well known to exist along the Niantic Bay
shoreline within a mile range of Millstone. The plaintiffs offered
into evidence a map upon which Mrs. Staub had placed colored stickers
to denote the locations along the Niantic shoreline where more
than twenty (20) members of her family and friends have suffered
from cancers and associated illnesses, many of whom have succumbed
to such illness, including children.
The trial court precluded such evidence from being presented at
the hearing. The plaintiffs thereupon moved for mistrial, which
was denied.
The plaintiffs then offered the testimony of the Commissioner
to establish his knowing and wilful violation of the law in issuing
emergency authorizations on an ongoing and routine basis for Millstone
operations and to establish his recognition that he lacked authority
to transfer emergency authorizations to DNC. The Commissioner
was subpoenaed in part to address his hand-written notation on
a document authorizing an annual renewal of an emergency authorization
issued for Millstone Unit 3 operations.
The notation appears as follows:
I really hate these. Statutes are very limited in what the [sic] define as "emergency." Continuing emergency is not even contemplated." [Emphasis in original]
Despite several offers, the trial court precluded the Commissioner's
testimony.
The plaintiffs moved for mistrial on grounds that the Commissioner's
testimony was critical to their proof. The motion was denied.
In the face of such motion for mistrial, the trial court deemed
the plaintiffs had waived their right to present argument on their
TRO application. The trial court permitted argument by the defendants'
counsel and in the remaining time before adjournment the trial
court permitted the plaintiffs to provide a responsive argument.
In their responsive argument, the plaintiffs requested the opportunity
to call the Commissioner to testify in accordance with the trial
court's statement at the outset of the proceedings that it would
consider permitting additional testimony if such appeared appropriate
during discussion of the legal issues. The plaintiffs also requested
the opportunity to call additional DEP witnesses to testify about
the nature of the discharges and NNECO's history of admitted criminal
violation of the permit. The trial court limited additional evidence
to correspondence between the plaintiffs and Commissioner Rocque,
in which the Commissioner denied the plaintiffs the availability
of any administrative proceedings with respect to the DNC transfer
application.
During argument, the plaintiffs asked the court to issue an order
to enjoin the discharge of pollutants from Millstone known to
cause genetic damage and cancers. The plaintiffs argued that the
Environmental Protection Act provides the court with such authority,
even if the court determined it lacked authority to enjoin transfer
of illegal permits or considered that the plaintiffs lacked standing
to challenge the transfer of illegal permits.
On March 20, 2001, the trial court issued a decision denying the
plaintiff's application for temporary restraining order. The court
declined to issue an order enjoining any radioactive or chemical
discharges.
Argument
The plaintiffs established clear entitlement to a temporary restraining order as requested.
Probability of success on the merits.
This action was brought pursuant to the Connecticut Environmental
Protection Act, which was enacted in 1973 because of a perception
by the Legislature that governmental regulators of polluting industries
were captive to the polluting industries they were charged with
regulating, and, in consequence, the environment and human health
were endangered.
CEPA gives broad powers to a judicial authority in cases where
a
plaintiff can establish that pollution is harming the environment.
The pollution alleged here is killing people. It is introducing
genetic damage to all living things in the vicinity on a routine,
ongoing basis. The chemicals discharged by Millstone settle into
intertidal sediments where they are consumed by worms and other
life at the bottom of the food chain. The pollutants are known
to cause cancer in fish.
Millstone pollutes far more than comparable nuclear reactors.
The facts alleged in the plaintiffs' verified complaint are true
and undisputed.
The legal issues are equally clear.
By statute, the Commissioner lacks any statutory authority to
transfer an emergency authorization which, by its very nature,
must be of finite and short duration. The emergency authorization
at issue is itself illegal. It operates as a permit which never
went through a permit process and for which the public never received
notice. Issuance and transfer of the emergency authorization violate
the Clean Water Act as alleged in the complaint.
The plaintiffs have established that they will succeed on the
merits of this case.
Irreparable Harm
The plaintiffs established that Millstone spreads more radioactive
cobalt
-60 and cesium-137 into the environment than all other similar
reactors in the United States. Moreover, the plaintiffs established
that Millstone accounts for one-third of the total radioactive
discharges of those radionuclides by the 57 similar reactors.
The radionuclides released by Millstone into the waters of the
Niantic Bay and Long Island Sound cause genetic damage at a cellular
level, for which no dose has been established to be safe from
harm, according to plaintiffs' expert, Dr. Busby.
Moreover, Millstone discharges quantities of toxic chemicals known
to cause cancer in all living things, according to the expert
testimony presented by the plaintiffs, which testimony was completely
unchallenged by the defendants.
Known synergies in the interaction between radionuclides and carcinogens
produce far more harmful effects than either alone, according
to the plaintiffs' experts.
Cancer clusters in people ring Niantic Bay within a one-mile range
of Millstone.
In its decision, the trial court makes only passing reference
to evidence of the effects of Millstone radioactive discharges
to humans and animals, and does not even mention the chemical
discharges for which Millstone has been notorious and which, even
the company's finance officer conceded, had brought NNECO into
conflict with the U.S. Department of Justice, Criminal Division.
The decision makes no reference to the testimony of Dr. John Harshbarger,
the eminent scientist long associated with the Tumor Registry
of Lower Animals, linking Millstone discharges to cancer in fish
and other living things.
It is undisputed that, should DNC take over the expired and illegal
Millstone discharge permits, it will continue to discharge radionuclides
and toxic chemicals into the waters of the state.
It is undisputed that DNC will do so without regard for the health,
safety or security of the nearly populated residential community.
As Niantic resident Billie Staub testified, when a local mother
recently asked DNC's chief executive to pledge that the company
would inform the community prior to planned releases of built-up
radioactive gases so that mothers with young children could take
special precautions, the company man simply said no.
It is also undisputed that DNC proved to the court that it has
no assets. It did not present any evidence that, without assets,
it would be able to comply with the standards of Millstone's expired
and illegal permits in releasing poisons to the sea.
Nor did DNC present any evidence to overcome the presumption that
it will lack financing to take over for NNECO in proceedings involving
renewal of the permit. Without assets, the company cannot be presumed
to be able to carry out environmental monitoring which will protect
the public and the environment from unnecessary and excessive
releases. Since it is known that DEP carries out virtually no
independent monitoring of Millstone discharges, nor does it independenly
test Millstone discharges for toxity, the trial court could only
conclude from the assessment of evidence that the risk to the
public health and safety from increased, unmonitored and deadly
discharges of radiation and toxic waste will result from the permit
transfer.
Although DNC's financial representative was invited during cross-examination
to divulge what considerations DNC has given to protect the community,
he did not understand the question and fell back on his testimony
that his company is looking out for its shareholders.
Evidence before the court established that DEP is not contemplating
commencing a hearing on a renewal application prior to June 31,
2002, that is, five years after NNECO applied for the renewal.
The Commissioner's attorney explained that the Millstone discharge
permit is the most complex permit the DEP has to deal with and
its complexity is responsible for the 5-year lapse of time to
convene a hearing following the filing of an application for renewal
in June 1997.
However, the Commissioner offered no evidence to establish how
the Commissioner could be deemed legally capable of analyzing
the qualifications of DNC to take over the permit and proceed
through permit renewal proceedings within the two-month period
commencing on February 1, 2001, when DNC applied for transfer
of the permit, if the permit issues are so complex. The Commissioner's
hasty review process invites grave doubt about the depth of the
Commissioner's efforts to determine whether DNC is qualified to
assume the responsibilities of the permit. The issue is particularly
troubling, in that DNC is a paper company only, has no assets,
and has never operated a nuclear power plant, and its parent company
has never operated a nuclear power plant which relies on seawater
for cooling.
In contrast with the plaintiffs' proof of irreparable harm to
human health, the defendants only offered to prove that their
companies' financial health would suffer if the TRO were granted
and that the TRO would defeat the purpose of the deregulation
law.
The defendants' proofs proved hollow.
Balance of the Equities
The trial court did not perform a balancing of the true equities:
the trial
court adopted the defendants' arguments without scrutiny, accepted
the companies' arguments as to financial losses and deemed the
financial health of the companies to be of paramount importance.
Thus, the trial court accepted the defendants' implicit argument
that
the deregulation law supersedes and negates the Connecticut Environmental
Protection Act. However, the deregulation law requires that electric
generators provide services which are safe and reliable and not
harmful to the environment. The generation of unsafe and environmentally
harmful electricity is not permitted by the deregulation law.
Similarly, the trial court adopted the defendants' argument that
issuance of a TRO would by itself jeopardize the sale. Yet, if
the Commissioner were
to deny the transfer, DNC would be free to apply for a discharge
permit or an emergency authorization on its own. Indeed, the Commissioner
has authority to deny a transfer application such as that submitted
by DNC and require the applicant to make an application. Regulations
of Connecticut State Agencies, section 22a-430-6(o). ("In
lieu of denial of the transfer, the commissioner may require the
transferee to submit an application for a new permit or a modified
permit.")
Moreover, approval of other aspects of the sale by other agencies
has no relevance to the present proceedings.
Because the defendant companies knew from the outset of their
transaction that Millstone operations require a valid water discharge
permit, their argument of irreparable harm and assertion that
equity must spare them from complying with the environmental protection
laws of Connecticut is not credible. At arm's length, DRI entered
into a purchase and sale agreement on August 1, 2000 that expressly
made the sale contingent on DNC's ability to obtain a valid water
discharge permit. DNC did not explain why it waited until February
1, 2001, six months later, to apply for a transfer of the Millstone
permit, nor why it did not apply for its own permit. It may be
that the Commissioner's agency enjoys a reputation as a pushover
for the nuclear industry. Should the Commissioner transfer the
permit to DNC in accordance with DNC's time demand, to the extent
that such a reputation exists, it will be enhanced.
The trial court adopted the defendants' specious argument that
ratepayers will suffer if the TRO is granted. The defendants offered
no facts in support of their argument. Although they asserted
that ratepayers would have to assume stranded costs if the TRO
were granted, they incorrectly assumed the discharge permit issue
is a deal-breaker. Even if so, a better sale price could well
be structured by the year 2003, the deadline set by the legislature
for completion of electricity generation divestiture. In the worst
case scenario, ratepayers will continue to pay less than $.03
per day for the stranded costs, according to NNECO's witness.
While NNECO's witness expressed dire predictions that approval
of the TRO would require NNECO (or its parent, CL&P) to assume
costs for decommissioning, the same witness failed to truthfully
state that DNC lacks assets to cover the costs of decommissioning
and its failure to have sufficient assets to cover the costs will
flip the costs to Connecticut ratepayers.
The trial court accepted the defendant companies's argument that
their assumption of costs in the sale transaction outweigh the
public interest factor. However, the flaw of that argument is
that the defendants voluntarily assumed the risk of obtaining
a valid discharge permit necessary for Millstone operations. The
trial court has simply by a bold strike obliterated the public
interest from its balancing-of-equities exercise.
Although the trial court found that a TRO would "risk harm
to legislative goals," there was no evidence to support such
a finding other than specious arguments offered by the defendants.
The trial court found that granting a TRO would risk harm to "many
Connecticut consumers of electric power," without saying
how.
In contrast, the trial court concluded that the proposed transfer
"does not create any new harm to the plaintiffs."
The new harm to the plaintiffs from the proposed transfer will
be the certainty of continued discharges of cancer-causing chemicals
and radionuclides by a company which is financially unable to
control them or to limit them. Human health is at a heightened
risk as a consequence.
In balancing the equities, the court must inspect the hands of
those before it. The plaintiffs offered to prove that the Commissioner
has issued emergency authorizations for Millstone operations in
knowing and wilful violation of the law.
The defendants asked the trial court to perpetuate the Commissioner's
illegal practice.
A proper balancing of the equities in this case reduces itself
to a simple concept: the equities demand that the court not perpetuate
the Commissioner's illegal conduct.
The public interest in avoiding great and lasting harm to the
health of the environment and the health of the citizens of the
state clearly outweighs the short-term financial objectives of
the company defendants.
Conclusion
For the reasons above, stated, the plaintiffs seek permission
for a direct appeal and the entry of an emergency order staying
the trial court's decision.
THE PLAINTIFFS
By: _________________________
Nancy Burton, Esq.
147 Cross Highway
Redding Ridge CT 06876
Tel. 203-938-3952
Fax 203-938-3168
CERTIFICATION
This is to certify that a copy of the foregoing was mailed on March 30, 2001 to the following via U.S. Mail, postage pre-aid:
Judith Merrill, Esq.
Assistant Attorney General
55 Elm Street
Hartford CT 06106
Tel. 860-808-5250
Fax 860-808-5386
Elizabeth C. Barton, Esq.
Updike Kelly & Spellacy
One State Street
P.O. Box 231277
Hartford CT 061230-1277
Tel. 860-548-2600
Fax 860-548-2680
David Bogan, Esq.
Robinson & Cole
695 East Main Street
Stamford CT 06904-2305
Tel. 203-462-7500
Fax 203-359-8576
The plaintiffs are: Connecticut Coalition Against Millstone,
STAR Foundation, North Fork Environmental Council and New York
State Assemblyman Fred Thiele.
One such chemical expressly allowed in the contested emergency
authorization is hydrazine, which is a carcinogen in fish. The
emergency authorization which is the subject of this petition
contains no limitation on the frequency nor amount nor concentration
nor location of such discharge. On September 27, 1999, NNECO pleaded
guilty in the U.S. District Court to criminal felonies involving
illegal discharges of hydrazine into the Long Island Sound at
Millstone in violation of the permit at issue.
The defendants are the Commissioner, Northeast Nuclear Energy
Company, present owner and operator of Millstone, and Dominion
Nuclear Connecticut, Inc.
A copy of the complaint, application for temporary restraining
order and supporting documents appears annexed hereto.
A copy of the permit, issued on December 15, 1992 for a five-year
term, is annexed hereto.
A copy of the emergency authorization issued on October 20, 2000
is annexed hereto.
On March 19, 2001, when Judge Schuman twice entered such hearing
orders, the defendants represented that the prospective sale of
Millstone from NNECO to DNC was scheduled to take place on April
2. On March 27, 2001, DNC's corporate representative stated that
the closing date had been changed to March 30. Apparently, the
date of closing was accelerated following the defendants' ex parte
session with Judge Langenbach.
A copy of the letter is annexed hereto.
The most deadly, tested in fish and known to be carcinogenic,
were identified as trichloroethylene, benzopyrene, nitrosodimethylamine
and DDT. Dr. Harshbarger testified about a study of the rebound
of a fish population near a polluter, which had discharged one
of these chemicals, once the plant shut down.
The Commissioner presented no evidence at hearing. NNECO presented
the company's corporate finance executive who testified that if
the TRO were granted it would negatively impact the financial
health of the company. Although he testified that Millstone employees
opposed the TRO, upon cross-examination he admitted that he had
not discussed the TRO with any employees, he had only discussed
the Millstone sale with six management-level employees, and he
was unaware that the 200-member Millstone Station Employees Association
- consisting of present Millstone employees who were not subject
to the recent layoff of one third of the workforce - had brought
suit to block the Millstone sale to Dominion. DNC presented a
senior vice president for finance of Dominion Resources, Inc.,
who testified that it was important to the company's credibility
on Wall Street that the court permit transfer of the discharge
permits, regardless of the legality of such an act. He acknowledged
that as of March 29, 2001, the prospective permit transferee,
DNC, had no assets. ("It has nothing.")
The plaintiffs also stated that a professor of the Yale School
of Forestry and Environmental Studies was prepared to testify
as to sediment studies he has carried out at Jordan Cove, adjacent
to Millstone on the eastern shore, where he discovered deposits
of radioactive cobalt-60 in the intertidal mud. His published
report concludes that such radioactive contamination could only
have come from Millstone.
A copy of the correspondence is annexed hereto.
A copy of the decision is annexed hereto.
Conn. Gen. Stat. Section 221-6k provides as follows:
Sec. 22a-6k. Emergency authorization for regulated activity. Temporary
authorization for regulated activity.
(a) The Commissioner of Environmental Protection may issue an emergency authorization for any activity regulated by the commissioner under section 22a-32, subsection (h) of section 22a-39, 22a-54, 22a-66, 22a-174, 22a-208a, 22a-342, 22a-368, 22a-403, 22a-430, 22a-449 or 22a-454 provided he finds that (1) such authorization is necessary to prevent, abate or mitigate an imminent threat to human health or the environment; and (2) such authorization is not inconsistent with the federal Water Pollution Control Act, the federal Rivers and Harbors Act, the federal Clean Air Act or the federal Resource Conservation and Recovery Act. Such emergency authorization shall be limited by any conditions the commissioner deems necessary to adequately protect human health and the environment. Summary suspension of an emergency authorization may be ordered in accordance with subsection (c) of section 4-182. The commissioner may assess a fee for an emergency authorization issued pursuant to this subsection. Such fee shall be of an amount equal to the equivalent existing permit fee for the activity authorized. The commissioner may reduce or waive the fee required pursuant to this subsection if good cause is shown. The fee required pursuant to this subsection shall be paid no later than ten days after the issuance of the emergency authorization.
(b) The commissioner may issue a temporary authorization for any activity for which the commissioner has authority to issue a general permit under section 22a-174, 22a-208a, 22a-361, 22a-368, 22a-430b or 22a-454 provided he finds that (1) such activity will not continue for more than thirty days; (2) such activity does not pose a significant threat to human health or the environment; (3) such authorization is necessary to protect human health or the environment or is otherwise necessary to protect the public interest; and (4) such authorization is not inconsistent with the federal Water Pollution Control Act, the federal Rivers and Harbors Act, the federal Clean Air Act or the federal Resource Conservation and Recovery Act. No temporary authorization shall be renewed more than once, and no such authorization shall be issued for an activity which has been authorized by a temporary authorization during the previous twelve months. Any person seeking a temporary authorization shall submit to the commissioner sufficient information to allow the commissioner to make the determination set forth herein. A temporary authorization shall be limited by any conditions the commissioner deems necessary to adequately protect human health and the environment. Summary suspension of a temporary authorization may be ordered in accordance with subsection (c) of section 4-182. The commissioner may assess a fee for a temporary authorization issued pursuant to this subsection. Such fee shall be of an amount equal to the equivalent existing permit fee for the activity authorized. The commissioner may reduce the fee required pursuant to this subsection if good cause is shown. The fee required pursuant to this subsection shall be paid before the issuance of the temporary authorization. The commissioner may, if good cause is shown, allow late payment of the fee required by this subsection provided such fee shall be paid no later than ten days after the issuance of the temporary authorization
The decision states that the plaintiffs "have not advanced
any principled basis to conclude that Fish II is not controlling.
Thus the express holding of Fish II appears to foreclose the plaintiffs'
challenge to the discharge permit itself." Circumstances
have changed since the Fish II decision was issued. An appearance
of collusion between DEP and the company defendants has gained
clarity. In Fish II, the Supreme Court was not asked to address
the issue of a transfer of an expired permit. Under the unusual
circumstances presented, it would be unlikely that the Supreme
Court would countenance an infinite extension of a permit
allowing discharges of deadly poisons, nor allow a transfer of
such a permit to a company without assets and without a demonstrable
ability to comply with the permit.
The trial court swallowed uncritically the misleading testimony
of DNC's financial representative. Although the vice president
for finances boasted about the wealth of the parent company, Dominion
Resources, Inc., the boast provided only illusory assurances that
the parent would share its wealth with DNC. Had the trial court
examined the pre-filed testimony presented to the DPUC by DNC's
representative in the DPUC proceedings, a full exhibit in the
case, the trial court would have realized that DNC is being launched
by DRI in a pea boat without oars or anchor. Similarly, the trial
court swallowed the defendants' mischaracterization of plaintiffs'
witnesses' testimony about whether a transfer of the illegal permits
to DNC will affect the Millstone discharges. Decision page 4.
Dr. Busby clearly testified that economic considerations can be
expected to give rise to cutbacks in health and safety protections.
Dr. Harshbarger testified that he had no knowledge of the Connecticut
deregulation law under which the Millstone sale is contemplated.
Therefore, his response to defendants' question had no meaning.
On this point, the trial court seriously erred in concluding that
DNC's parent company, Dominion Resources, Inc., would provide
necessary financial backing. There is no such guarantee of financial
backing, nor did DNC offer any evidence that the parent company
would be legally bound to provide the necessary financing to assure
that the greatly reduced workforce at Millstone will be able to
comply with the standards of the discharge permit. DNC's reliance
on the support of the remaining Millstone workforce to establish
it qualifies for a permit transfer pursuant to Conn. Gen. Stat.
Section 22a-60 is illusory. Although representations were repeatedly
made in proceedings before the Connecticut Department of Public
Utility Control in the divestiture docket that DNC would benefit
from retention of Millstone's experienced workforce to assure
continuity and safe operations, NNECO's chief nuclear officer,
Lee Olivier, announced on March 29 - the day of issuance of Judge
Schuman's decision - that he was leaving Millstone.
FOR IMMEDIATE RELEASE MARCH 29, 2001
Contact: Nancy Burton 203-938-3952
Scott Cullen 631-324-0655
Mystic - A coalition of Connecticut and New York activists
issued the following statement concerning the decision of
Superior Court Judge Carl Schuman on March 29, 2001 denying their
application for a temporary restraining order to
block the transfer of the Millstone waste discharge permit from
Northeast Utilities to Dominion Nuclear Connecticut Inc.:
This decision allows the Connecticut Department of Environmental
Protection to transfer illegal and expired permits and
emergency waivers to a newly created paper company without assets.
It permits Dominion to operate the most dangerous
nuclear facility in the Northeast without having to apply for
the permit and face public scrutiny. It makes a mockery of the
state's environmental laws.
This decision perpetuates a history of illegal operations at
Millstone and disregard for the law and for the health and safety
of the neighboring community by governmental authorities.
The court disregarded the expert testimony of eminent scientists
that the Millstone discharges of radioactive waste and toxic
chemicals are responsible for a cancer epidemic along the shoreline
of Niantic Bay facing Millstone. The poisonous
discharges are known to cause tumors and genetic damage in all
living things.
The plaintiffs in the action are Connecticut Coalition Against
Millstone, STAR Foundation, North Fork Environmental
Council and New York State Assemblyman Fred Thiele. They will
seek an immediate stay of the decision.
FOR IMMEDIATE RELEASE
MARCH 28, 2001
Contact: Nancy Burton 203-938-3952
Scott Cullen 631-324-0655
Mystic - Residents of the community surrounding
the Millstone Nuclear Power Station in Waterford will
present evidence in a court proceeding today of an epidemic of
cancer along the surrounding shoreline.
They will also offer the testimony of Arthur
J. Rocque, Commissioner of the Department of
Environmental Protection, to establish his wilful violation of
the law in issuing emergency permits for
Millstone discharges of chemicals known to cause cancer in people
and animals.
On March 27, Connecticut and Long Island activists
presented the testimony of two experts who
established a correlation between Millstone radioactive and toxic
chemical discharges into the Long Island
Sound and an epidemic of cancer in the shoreline communities of
Niantic and Waterford.
Dr. Christopher C. Busby, a chemical physicist,
testified that sufficient evidence exists that the operations
of the Millstone reactors have caused increases in cancers in
local populations.
Dr. John Harshbarger, director of the Tumor
Registry for Lower Animals in Washington, D.C., testified
that chemical discharges by Millstone are known to cause cancer
in fish and other living things, including
people.
Superior Court Judge Carl Schuman is hearing
an application for a temporary restraining order by the
coalition to bar the DEP from transferring a discharge permit
from Northeast Utilities to Dominion Nuclear
Connecticut, Inc.
The coalition charges that the discharge permit
expired three years ago and that emergency authorizations
routinely issued by Commissioner Rocque are illegal.
During yesterday's proceedings, a Dominion
vice president for finances testified that the prospective
owner and operator of Millstone has no assets. That company has
applied for a transfer of the expired
discharge permit, rather than apply for its own permit.
"This proceeding provides a critical moment
of truth for Connecticut," said Joseph H. Besade, a member
of the Connecticut Coalition Against Millstone, one of the plaintiffs.
"The credibility of the DEP and our judicial
system are on trial," said Besade. "If the DEP is permitted
to
perform the illegal act of transferring an expired and illegal
permit to a profit-driven paper company, the
Constitution State will become known as the as the Pushover State
by the nuclear profiteers.
"The public interest demands that the court block this permit transfer," Besade said.
The proceedings resume at 2 P.M. today at the
Superior Court, 95 Washington Street in Hartford.
FOR IMMEDIATE RELEASE
MARCH 27, 2001
Contact: Nancy Burton 203-938-3952
Scott Cullen 631-324-0655
Mystic - The Millstone Nuclear Power Station
has caused increases in cancer in the surrounding
human population, according to testimony of a Welsh expert who
has correlated high cancer rates
near English nuclear facilities.
"Sufficient evidence exists for me to
believe that the operation of the Millstone plant has caused
increases in cancer in local populations," said Dr. Christopher
C. Busby, a chemical physicist
from Wales who is an expert in low level ionizing radiation.
"The Millstone reactors are licensed to
release radioisotopes on the basis of erroneous models for
radiation risk which significantly understate their true risk,"
Busby said.
Busy's testimony was prepared for a court proceeding
at the Hartford Superior Court at which a
coalition of Connecticut and Long Island activists is seeking
to stop the transfer of Millstone's
license to discharge radioactive and toxic waste into the Long
Island Sound to a prospective
purchaser, Dominion Nuclear Connecticut, Inc.
The coalitions claim that the permit expired
three years, has been illegally expanded and extended
and that the Commissioner of DEP has no legal right to transfer
an expired permit of this nature.
The coalitions also will present the testimony
of Dr. John Harshbarger, a zoologist who has
studied epidemics of fish cancers for more than 30 years as Director
of the Tumor Registry of
Lower Animals at the Smithsonian Institution in Washington, D.C.
"Chemicals discharged by the Millstone
reactors are known to cause cancer in fish and other
living things, including people," Harshbarger said.
" In my personal opinion, discharge of
chemicals such as are identified with Millstone are
causing irreparable harm to the marine environment," Harshbarger
said. "A company should not
be able to destroy someone else's environment.
Support for the experts' testimony was provided
by Christie Brinkley, a member of STAR
Foundation, a Long Island organization which is a plaintiff in
the suit.
Dr. Busby and Dr. Harshbarger will be available
to discuss their findings at a press conference
on March 27, 2001 at 9:30 on the steps of the Hartford Superior
Court, 95 Washington Street,
Hartford. Their testimony is scheduled to begin at 10 A.M. They
will be available for interviews
throughout the day.
FOR IMMEDIATE RELEASE
March 6, 2001
CONTACT: Nancy Burton 203-938-3952
Mystic - A Superior Court judge will conduct a hearing on March
12 to decide whether the Millstone Nuclear Power Station sale
to a Virginia company should be delayed.
The hearing is scheduled for 10 A.M. at the Superior Court in
New Britain.
The Connecticut Coalition Against Millstone sought the show-cause
order to block the sale while its appeal of the January 24 decision
of the state Department of Public Utility Control approving the
sale is pending.
The DPUC approved the sale of the three-reactor station to Dominion
Resources, Inc., a utility company based in Richmond, Virginia
for $1.3 billion.
Dominion plans to turn Millstone over to a recently created limited
liability company, Dominion Nuclear Connecticut, Inc.
The Coalition appealed the approval on February 20 on grounds
that the subsidiary lacks assets to assure the reactors can be
safely operated and maintained.
"Dominion's paper company has no assets and no business running
a flea market, let alone three trouble-plagued reactors which
have potential to cause catastrophic accidents," said Joseph
H. Besade, a Coalition member who resides in Waterford near Millstone.
Besade said the $150 million the parent company pledged to back
the subsidiary is a trifling amount for operating nuclear reactors
and, besides, Dominion has reserved the right to revoke the pledge
at any time.
"When Dominion had to replace steam generators at one of
its reactors in Virginia ten years ago, the cost was $185 million,
$30 million more than the maximum amount Dominion has pledged
to keep Millstone operating safely." Besade said.
Northeast Utilities, owner and operator of Millstone, announced
this week that it had discovered major cracks in the Unit 3 giant
turbine which will keep the plant shut down at a cost of $1.2
million per day and delay restart following a refueling outage
by two weeks.
NU also announced it has a backlog of 9,000 maintenance tasks
to perform before the plant can restart.
"Dominion Resources, Inc. has made a business decision to
be able to cut its losses and run back to Virginia if Millstone
proves to be the nuclear lemon that NU knows it is," Besade
said.
"If Dominion is unwilling to back its own subsidiary in a
sufficient amount to operate Millstone safely, and NU doesnít
want to run Millstone because it can't generate a profit, how
can the public have confidence in this sale?" Besade asked.
Note to Editors: The Connecticut Coalition Against Millstone Complaint, Motion for Stay, Memorandum of Law In Support of Motion for Stay and Application for Show Cause Order are posted at www.mothballmillstone.org
CV 01 0506963 : SUPERIOR COURT
CONNECTICUT COALITION : JUDICIAL DISTRICT
AGAINST MILLSTONE : OF NEW BRITAIN
v. :
CONNECTICUT DEPARTMENT :
OF PUBLIC UTILITY CONTROL; :
CONNECTICUT LIGHT & :
POWER COMPANY; :
UNITED ILLUMINATING :
COMPANY; :
DOMINION RESOURCES, INC.; :
DOMINION NUCLEAR CONNECTICUT, :
INC.; :
J.P. MORGAN SECURITIES, INC. : MARCH 2, 2001
APPLICATION FOR ORDER TO SHOW CAUSE
The plaintiff herewith makes application for an order to show
cause why a stay should not enter in these proceedings to preserve
the status quo during the pendency of the proceedings and until
further order of the Court.
This case is an appeal of a final decision of the defendant, Department
of Public Utility Control ("DPUC") on January 24, 2001
approving the sale of the Millstone Nuclear Power Generating Station
("Millstone") to the defendant, Dominion Resources,
Inc.
The verified complaint alleges that the DPUC approval was contrary
to law in numerous respects, most particularly in that DPUC failed
to properly screen the prospective owner to ensure it is qualified
to operate Millstone safely, as required in its order of divestiture
on April 19, 2000.
The verified complaint alleges that a recently formed limited
liability company without assets has been set up to own and operate
Millstone with only an illusory and revocable guarantee of financial
backing.
The verified complaint alleges that the prospective owner and
operator of Millstone lacks qualifications to operate Millstone
safely.
The plaintiff membership includes families with young children
who reside within the five-mile emergency evacuation zone of Millstone
and who are directly at risk from unsafe operations of Millstone,
which unsafe operations may result from economic considerations
attributable to matters involved in the proceedings on appeal,
including the decision on appeal.
The plaintiff and its membership will be irreparably harmed if
a stay is not issued as requested.
The plaintiff is without an adequate remedy at law.
Wherefore, the plaintiff makes application for an order to show
cause why such stay should not issue.
THE PLAINTIFF
CONNECTICUT COALITION
AGAINST MILLSTONE
By: _________________________
Nancy Burton, Esq.
147 Cross Highway
Redding Ridge CT 06876
Tel. 203-938-3952
RETURN DATE: MARCH 13, 2001 : SUPERIOR COURT
CONNECTICUT COALITION : JUDICIAL DISTRICT
AGAINST MILLSTONE : OF NEW BRITAIN
v. :
CONNECTICUT DEPARTMENT :
OF PUBLIC UTILITY CONTROL; :
CONNECTICUT LIGHT & :
POWER COMPANY; :
UNITED ILLUMINATING :
COMPANY; :
DOMINION RESOURCES, INC.; :
DOMINION NUCLEAR CONNECTICUT, :
INC.; :
J.P. MORGAN SECURITIES, INC. : FEBRUARY 20, 2001
COMPLAINT
The Connecticut Coalition Against Millstone ("CCAM")
is an organization of
statewide groups and individuals devoted to safe and sustainable
energy. CCAM's membership includes Connecticut Citizens Awareness
Network ("CAN"), Don't Waste Connecticut, the Connecticut
Green Party and People's Action for Clean Energy ("PACE").
CCAM's membership also includes families with children who reside
within the five-mile emergency evacuation zone of the Millstone
Nuclear Power Generating Station ("Millstone") in Waterford,
Connecticut. CCAM is based at 13 Water Street, Mystic, Connecticut.
The Connecticut Department of Public Utility Control ("DPUC")
is a state
agency charged, inter alia, with implementing Public Act 98- 28,
entitled An Act Concerning Electricity Restructuring, Conn. Gen.
Stat. 16-244-245y ("the Act").
3. Section 16-244g(b) of the Act provides that no later than January
1, 2004, each electric distribution company shall either submit
its nuclear generation assets to public auction or transfer its
nuclear generation assets to a legally separate affiliate at their
book value.
Connecticut Light & Power Company ("CL&P") and
United Illuminating
Company ("UI") are electric distribution companies which
are majority owners of Millstone.
5. Millstone is deemed a nuclear generation asset within the meaning
of the
Act.
6. Pursuant to Conn. Gen. Stat. Section 26-244g, CL&P and
UI submitted a
divestiture plan on November 5, 1999 to the DPUC.
7. DPUC approved the divestiture plan with certain requirements
and conditions on April 19, 2000.
8. In its order approving the divestiture plan on April 19, 2000,
DPUC
ordered, inter alia, that the auction consultant "screen
bidders to ensure they have the proper qualifications to operate
[Millstone] safely. The Department will consider these qualifications
its final approval of the sale."
9. In private proceedings from which the public and CCAM were
excluded, DPUC selected J.P. Morgan Securities, Inc. ("J.P.
Morgan") as auction consultant.
Conn. Gen. Stat. Section 16-244(g)(b)(2) provides as follows:
The department [DPUC] shall not approve a sale [of a nuclear generating
asset] unless (A) the sale price equals or exceeds the minimum
bid
established by the department for the asset, (B) the department
determines the bidder meets all applicable qualifications established
by federal law and regulation, (C) the sale is conducted in accordance
with the divestiture plan as approved by the department, (D) the
bidder
proves to the satisfaction of the department that the bidder will
preserve
labor agreements in effect at the time of the sale, and (E) the
sale will
result in a net benefit to ratepayers, as determined by the department.
An auction was conducted by J.P. Morgan, at the conclusion
of which J.P.
Morgan selected Dominion Resources, Inc. ("DRI") as
the successful bidder.
12. DRI is a Virginia corporation engaged in natural gas and electric
power generation.
13. Dominion Nuclear Connecticut ("DNC") was created
by DRI after the
conclusion of the auction and after DRI was selected as the successful
bidder.
14. DNC, a limited liability company, has no assets and has never
owned nor
operated a commercial nuclear power facility, nor is it presently
licensed to operate a nuclear power facility.
DRI owns and operates four nuclear power plants in Virginia where
it has
established a poor safety performance record; it has paid fines
assessed for providing false information to the U.S. Nuclear Regulatory
Commission ("NRC"); it has engaged in successive waves
of worker layoffs in safety-sensitive positions; it has frequently
been assessed fines and penalties by the NRC for nuclear safety
violations; upon information and belief, DRI has set a nuclear
industry record in the number of accident fatalities at a single
nuclear power station (nine).
By letter dated August 18, 2000, CL&P and UI requested that
DPUC
Conduct proceedings to consider approval of the "results
of the Millstone auction process." The letter states in pertinent
part as follows:
"The Applicants [CL&P and UI] hereby provide notice of
their intent
to file with the Department a joint petition for approval of the
auction
results, including the sale of the other participating owners'
Millstone
interests. Accordingly, the Applicants respectfully request that
the
Department reopen the instant proceeding for the limited purpose
of approving the sale under Public Act 98-28 and C.G.S. Section
16-43, as appropriate." (Emphasis added.)
17. On September 6, 2000, DPUC issued an order pursuant to
the CL&P/UI
application. Such order states in its entirety as follows:
"The Department hereby grants the Applicants' [CL&P and
UI] request
[dated August 18, 2000] and reopens the instant docket for the
purpose
of approving the auction results and the sale of Millstone Station
pursuant to Section 16-244g of the General Statutes of Connecticut.
The reopened docket is hereby designated as Docket No. 99-09-12REO1,
Application of The Connecticut Light and Power Company and
The United Illuminating Company for Approval of Their Millstone
Nuclear Generation Assets Divestiture Plan - Sale of Millstone
Station to Dominion Resources, Inc." (Emphasis added.)
18. By joint application dated September 8, 2000, CL&P,
UI, J.P. Morgan,
Dominion Resources, Inc. ("DRI") and Dominion Nuclear
Connecticut ("DNC") requested that DPUC approve the
sale of Millstone.
19. The application submitted to DPUC requests DPUC approval of
DNC as the
owner and operator of Millstone, rather than DRI, the successful
bidder.
20. The application proposed that DRI's financial backing of DNC's
Millstone operations be limited to $150 million, a sum which may
be withdrawn by vote of DRI's Board of Directors. Under the terms
of the sale application, DNC's assets will be confined to (a)
revenues generated from the production and sale of electricity
at Millstone and (b) DRI's commitment to provide a maximum contribution
of $150 million, provided DRI does not withdraw its limited financial
commitment.
21. By notice of hearing dated October 11, 2000, DPUC conducted
a public hearing as a contested case on November 6, 7, 8, 27 and
December 6, 2000.
22. The "public hearing" session on December 6, 2000
was closed to the public.
DPUC recognized the following as parties to the proceeding: CL&P,
UI, J.P.
Morgan, DRI, DNC and the Office of Consumer Counsel ("OCC").
CCAM petitioned to be designated a party to the proceedings by
application
dated October 30, 2000, pursuant to Regulations of Connecticut
State Agencies Section 16-1-17.
Conn. Gen. Stat. 16-9a provides as follows:
Party status in proceedings before department. In a proceeding
before the department of Public Utility Control the department
shall give special consideration to a request for party status
from a person whose interests are not otherwise adequately represented
by another party to the proceeding and shall not unreasonably
deny such request.
26. CCAM's interests were not otherwise represented by another
party to the proceeding.
27. Commissioners Donald W. Downes (Chairman), Jack R. Goldberg,
and John
W. Betkoski III were assigned as the public hearing panelists.
Commissioners Downes and Goldberg alternated in attendance at
the public hearing. Commissioner Betkoski attended no portion
of the public hearing. DPUC's legal counsel in the proceedings,
Kenneth L. Braffman, was designated a "hearing officer"
for purposes of presiding over the public hearing conducted on
November 27, 000, at which he rendered substantive rulings on
evidence and party status.
28. On November 6, 2000, DPUC Chairman Downes denied CCAM party
status;
however, DPUC permitted CCAM to participate as an intervenor pursuant
to Regulations of Connecticut State Agencies Section 16-1-18.
29. In addition to CCAM, DPUC designated the following as intervenors
to the proceeding: Nuclear Energy Advisory Council, Connecticut
Industrial Energy Council, Connecticut Municipal Electric Energy
Cooperative, Massachusetts Municipal Wholesale Electric Company,
Office of the Attorney General and the Town of Waterford.
30. CCAM participated in the proceedings by conducting cross examination,
presenting the testimony of five witnesses and submitting documentary
evidence.
31. During the public hearing, CCAM requested that DPUC order
DRI to submit its complete record of safety compliance at its
four Virginia nuclear reactors; such evidence was not otherwise
before the DPUC; the DPUC denied the request.
On January 9, 2001, DPUC issued a draft decision approving the
sale.
On January 16, 2001, CCAM filed formal exceptions and requested
a hearing
for oral argument.
DPUC conducted a proceeding on January 23, 2001 to hear oral argument.
On three occasions during the proceedings, CCAM moved to reopen
the
Public hearing for further development of the record; DPUC denied
each request.
On January 18, 2001, CCAM moved to reopen the proceedings for
further
development of the evidence in light of (a) CL&P's recent
disclosure through its subsidiary, Northeast Nuclear Energy Company,
that it could not account for two13-foot-3-inch-long irradiated
spent fuel rods which belong in the Millstone Unit 1 spent fuel
pool and (b) a decision issued on January 17, 2001 by the NRC
granting an appeal by CCAM of a decision allowing expansion of
storage capacity of the Millstone Unit 3 spent fuel pool. CCAM's
motion asserted that such developments impacted the issues before
the DPUC, including the issue of DRI's decommissioning refinancing
plan. DPUC summarily denied the motion to reopen.
On January 23, 2001, CCAM moved the reopen the proceedings for
further
development of the record on issues of worker protection and a
safety conscious work environment in light of (a) a submission
by the Millstone Station Employees Association on January 18,
2001, which was not distributed to CCAM, asserting that the proposed
sale provides the Millstone workforce with insufficient protection;
and (b) an incident which occurred at Millstone on January 18,
2001 in which workers left a job site without completing a modification
to a critical safety system which thereby rendered the safety
system inoperable. CCAM asserted that such developments impacted
the issues before the DPUC, including whether the proposed sale
promotes a safety conscious work environment at Millstone and
whether the proposed sale complies with the requirement of Conn.
Gen. Stat. Sec. 16-244(8) and (9) in assuring that the public
be provided with safe and reliable generation of electricity.
DPUC summarily denied the motion to reopen.
38. On January 24, 2001, CCAM moved to reopen the proceedings
for further development of the record regarding a safety conscious
work environment, workers' concerns and the technical and managerial
qualification of DRI to operate nuclear facilities safely in light
of (a) comments published in the New London Day newspaper on January
24, 2001 suggesting deep disaffection among some of the Millstone
workforce regarding the terms of the proposed sale as it affects
their interests; and (b) the NRC's reluctance to investigate the
cause of the January 18, 2001 incident at Millstone if it involved
an economic issue; and (c) the loss of function of all 700 control
room annunciators (light-and-sound alarms) in the control room
of DRI's North Anna I nuclear reactor on January 23, 2001 and
the report of a January 19, 2001 ten-gallon-per-minute leak of
radioactive fluid at North Anna II. CCAM asserted that such developments
impacted the issues before DPUC, including whether the proposed
sale promotes a safety conscious work environment at Millstone
and adequately protects the Millstone workforce and whether DRI
is qualified to operate nuclear facilities. DPUC summarily denied
the motion.
On January 24, DPUC convened at 9:30 A.M. and unanimously adopted
the
Draft Decision dated January 9, 2001 without discussion and without
revision.
Subsequently, on January 24, 2001, DPUC posted two identical versions
of its
Decision on its website entitled respectively "Final Decision"
and "Revised Draft Decision." Each contained modifications
to the Draft Decision requested by Dominion's legal counsel in
exceptions it filed on January 16, 2001 and which it argued on
January 23, 2001. Neither the Final Decision nor the Revised Draft
Decision conforms with
the text of the Draft Decision dated January 9, 2001 which DPUC
unanimously approved and adopted on January 24, 2001. The "Revised
Draft Decision" contains the following statement:
This draft decision is being distributed to the parties in this
proceeding for comment. The proposed decision is not a final
decision of the Department. The Department will consider the
parties' arguments and exceptions before reaching a final decision.
The final Decision may differ from the proposed Decision.
Therefore, this draft Decision does not establish any precedent
and does not necessarily represent the Department's
final conclusion.
CCAM is aggrieved by the DPUC's decision.
CCAM and its members possess specific personal and legal rights
and interests
in the subject matter of the proceedings and their specific personal
and legal interests have been specially and injuriously affected
by the decision which is the subject of this appeal in that:
CCAM's membership includes families with children who own property
and reside
within the five-mile emergency evacuation zone of Millstone and
who, by virtue of their propinquity to Millstone, are at great
risk of harm to their health and safety from unsafe operations
of Millstone, including unsafe operations resulting from business
decisions dictated by the economic considerations at issue in
these proceedings;
(2) CCAM's membership includes organizations whose memberships
include families with children who reside near Millstone and are
thereby at risk of harm to their health and safety from unsafe
operations of Millstone, including unsafe operations resulting
from business decisions dictated by the economic considerations
at issue in these proceedings;
CCAM's headquarters, at 13 Water Street, Mystic, Connecticut,
are located ten
(10) miles downwind of Millstone and within the 10 mile evacuation
zone of Millstone; those who participate in its activities at
such location, by virtue of its propinquity to Millstone, do so
at risk to their health and safety from unsafe operations of Millstone,
including unsafe operations resulting from business decisions
dictated by the economic considerations at issue in these proceedings;
The decision which is the subject of this appeal permits the ownership
and
operation of Millstone - a nuclear facility long plagued by operational
and managerial failures and illegal misconduct - by a limited
liability company without assets and without adequate capitalization.
Thereby, the decision promotes reckless cost-cutting and job insecurity;
jeopardizes a safety conscious work environment; illegally defers
clean- up of the radiologically and chemically contaminated site
for decades; fails to require adequate financing for decommissioning
of the site; fails to require adequate financing to protect the
public and its workforce during routine operations and from accidents;
and directly endangers the public health and safety, most particularly
those members of the public closest to Millstone, including CCAM
and its membership.
In the above-described proceedings, DPUC acted illegally, arbitrarily
and
capriciously and in abuse of its discretion as follows:
The decision violates Conn. Gen. Stat. Section 16-244(g)(b)(2)
in that:
DRI does not meet all applicable qualifications established by
federal law and regulations;
DNC does not meet all applicable qualifications established by
federal law and regulation;
The sale was not conducted in accordance with the divestiture
plan as approved by DPUC;
Neither DRI nor DNC established that it would preserve labor agreements
in effect at the time of the sale;
The sale will not result in a net benefit to ratepayers.
(2) DPUC approved its Draft Decision dated January 9, 2001 without
modification or revision; its apparent effort to adopt the "Revised
Draft Decision" after the unanimous vote to approve the Draft
Decision on January 24, 2001 was a legal nullity;
(3) DPUC approved a decommissioning refinancing plan submitted
by DRI without providing notice and without conducting a public
hearing as required by Conn.Gen. Stat. 16-19o;
(4) DPUC had no authority to consider the decommissioning refinancing
plan in that the governing statute, Conn. Gen. Stat. Section 16-19n,
expressly limits an applicant to a licensed operator of a nuclear
power generating facility within the state of Connecticut; at
the time of submission of the application and at all times pertinent
to the application proceedings, neither DRI nor DNC was licensed
to operate a nuclear power generating facility in the state of
Connecticut;
(5) The decommissioning refinancing plan is inadequate and legally
deficient in that it fails to provide sufficient plans and options
for insuring against or otherwise financing premature closing
of the facility as required by Conn. Gen. Stat. Section16-19n(b)(7);
(6) The decommissioning refinancing plan is inadequate and legally
deficient in that it fails to provide reasonable assurance of
responsibility in the event of insufficient assets to fund the
decommissioning as required by Conn. Gen. Stat. Section 16-19n(b)(8);
(7) The decommissioning refinancing plan is inadequate and legally
deficient in that it fails to adequately describe the stages by
which decommissioning is intended to be accomplished, as required
by Conn. Gen. Stat. Section 16-19n(b)(9);
(8) The decommissioning refinancing plan is inadequate and legally
deficient in that it did not include a fully executed decommissioning
financing agreement between the licensee and each owner, evidencing
each owner's acceptance of its respective share of the ultimate
responsibility for decommissioning, as required by Conn. Gen.
Stat. Section 16-19n(b)(10);
(9) DPUC erroneously approved the decommissioning refinancing
plan in violation of Conn. Gen. Stat. Section 16-19o without evidence
in the record that the estimated time of closing of the nuclear
power generating facility and the estimated cost of decommissioning
are reasonable; the licensee and the owners of the facility can
adequately fund the decommissioning; the share of the estimated
cost of decommissioning for each owner of the facility is reasonable;
the plans and options for insuring against or otherwise financing
any shortfall in decommissioning funds resulting from a premature
closing are adequate and reasonable; the owners are legally bound
to accept their respective shares of the ultimate financial responsibility
for decommissioning as provided under section 16-19q; thereby,
DPUC was legally bound to reject the decommissioning refinancing
plan because it fails to meet the statutory criteria of Conn.
Gen. Stat. 16-19(b), as required by Conn. Gen. Stat. Section 16-19(c);
(10) DPUC failed to require that its consultant adequately screen
prospective bidders to ensure that they have proper qualifications
to operate Millstone safely, as required by its order on April
19, 2000 approving the divestiture plan;
(11) J.P. Morgan failed to adequately screen DRI to insure that
it has proper qualifications to operate Millstone safely;
(12) DRI lacks adequate managerial and and technical qualifications
to operate Millstone safely, contrary to DPUC's finding; nevertheless,
DPUC's finding was legally irrelevant in that DRI will not own
or operate Millstone;
(13) DPUC failed to screen DNC to insure it has adequate qualifications
to operate Millstone safely;
(14) DNC lacks adequate managerial and technical qualifications
to operate Millstone safely;
(15) DPUC accurately stated in the Draft Decision that it had
not evaluated DNC; however, at the specific request of DRI and
DNC, DPUC altered the Draft Decision to state the opposite - that
it had evaluated DNC - which was not correct;
(16) DPUC erred in denying CCAM party status in violation of Conn.
Gen. Stat. Section16-9a and such denial was unreasonable;
(17) DPUC failed to require that a public auction be conducted;
(18) DPUC wrongfully permitted the parties to withhold from public
scrutiny documents and evidence critical to the public hearing
process, including J.P. Morgan's confidential offering statement
and the winning bid submitted by DRI;
(19) DPUC wrongfully withheld from public scrutiny the bids submitted
by other bidders;
(20) The record before DPUC establishes that DRI is not qualified
to operate Millstone safely, in violation of the divestiture plan;
(21) The record before DPUC establishes that DNC is not qualified
to operate Millstone safely, in violation of the divestiture plan;
(22) DPUC erred in awarding to DNC the benefit of excess decommissioning
funds rather than to the ratepayers who have contributed to the
fund;
(23) DPUC erred in failing to require DRI to submit its records
of safety compliance at its four nuclear reactors in Virginia
and thereby deprived itself of meaningful review of the application;
(24) DPUC failed to protect worker security;
(25) DPUC conducted a sham proceeding which was a product of bias,
prejudice and pre-judgment; none of the three DPUC Commissioners
who comprised the hearing panel attended the entire public hearing;
one was absent from the entire public proceeding prior to argument;
the three Commissioners failed to state on the record that they
had reviewed the entire record and all exhibits prior to voting;
their rulings on party status, participation and evidentiary issues
manifested clear bias and prejudgment.
(26) DPUC erred in violation of Conn. Gen. Stat. Section 16-(
c ) in assigning its legal counsel to preside over a portion of
the public hearing and render substantive decisions in lieu of
the absent DPUC Commissioners;
(27) DPUC erred in denying CCAM's motions to reopen the public
hearing for further development of the record;
(28) In so acting, DPUC failed to properly discharge its legal
mandate to assure safe generation of electricity for Connecticut
ratepayers;
(29) In so acting, DPUC failed to properly discharge its legal
mandate to assure reliable generation of electricity for Connecticut
customers;
(30) DPUC failed to obtain commitment from DRI that it would provide
financial backing to DNC sufficient to protect the public health
and safety;
(31) Because of DPUC's failure to act in compliance with the letter
and spirit of the Act, the decision will endanger the public health
and safety;
(32) The DPUC's actions were undertaken without any substantial
justification within the meaning of Conn. Gen. Stat. Section 4-184a(b
Wherefore, CCAM requests that the Court award the following
relief:
Sustain this appeal;
Reverse and vacate the decision of the DPUC approving the Millstone
sale;
Find that the DPUC's actions were undertaken without any substantial
justification, within the meaning of Conn. Gen. Stat. Section
4-184a(b); and
Award costs and reasonable attorney's fees.
CONNECTICUT COALITION
AGAINST MILLSTONE
By: ________________________
Nancy Burton, Esq.
147 Cross Highway
Redding Ridge CT 06876
Tel. 203-938-3952
CV 01 0506963 : SUPERIOR COURT
CONNECTICUT COALITION : JUDICIAL DISTRICT
AGAINST MILLSTONE : OF NEW BRITAIN
v. :
CONNECTICUT DEPARTMENT :
OF PUBLIC UTILITY CONTROL; :
CONNECTICUT LIGHT & :
POWER COMPANY; :
UNITED ILLUMINATING :
COMPANY; :
DOMINION RESOURCES, INC.; :
DOMINION NUCLEAR CONNECTICUT, :
INC.; :
J.P. MORGAN SECURITIES, INC. : MARCH 2, 2001
VERIFICATION
I, Joseph H. Besade, having been duly sworn, do hereby depose
as follows:
I am above the age of eighteen (18) years and I believe in he
obligation of an oath.
I reside with my family within two (2) miles of the Millstone
Nuclear Power Generating Station.
I am a member of the plaintiff.
I am personally familiar with the facts alleged in the foregoing
Application for Order to Show Cause.
Such facts are true to the best of my knowledge, information and
belief.
_________________________
Joseph H. Besade
STATE OF CONNECTICUT
ss:
COUNTY OF
Sworn to and subscribed before me this 2nd day of March, 2001.
_______________________________________
Commissioner of the Superior Court
CV 01 0506963 : SUPERIOR COURT
CONNECTICUT COALITION : JUDICIAL DISTRICT
AGAINST MILLSTONE : OF NEW BRITAIN
v. :
CONNECTICUT DEPARTMENT :
OF PUBLIC UTILITY CONTROL; :
CONNECTICUT LIGHT & :
POWER COMPANY; :
UNITED ILLUMINATING :
COMPANY; :
DOMINION RESOURCES, INC.; :
DOMINION NUCLEAR CONNECTICUT, :
INC.; :
J.P. MORGAN SECURITIES, INC. : MARCH 2, 2001
ORDER TO SHOW CAUSE
Whereas, the foregoing complaint, duly verified, motion for
stay, with supporting memorandum of law, and verified application
for order to show cause having been presented to the Court, and
Whereas, upon application of the plaintiff it appears that an
order should, be issued directing the defendants in this action
to appear before the Court to show cause why a stay should not
issue as requested,
Now therefore it is ordered that the defendants be summoned to
appear before the Superior Court for the Judicial, District of
New Britain. 20 Franklin Square, New Britain, Connecticut, in
Courtroom on , then and there to show cause why a stay should
not enter as prayed for in the foregoing motion.
Dated at
BY THE COURT
_________________________
JUDGE/CLERK
CV 01 0506963 : SUPERIOR COURT
CONNECTICUT COALITION : JUDICIAL DISTRICT
AGAINST MILLSTONE : OF NEW BRITAIN
v. :
CONNECTICUT DEPARTMENT :
OF PUBLIC UTILITY CONTROL; :
CONNECTICUT LIGHT & :
POWER COMPANY; :
UNITED ILLUMINATING :
COMPANY; :
DOMINION RESOURCES, INC.; :
DOMINION NUCLEAR CONNECTICUT, :
INC.; :
J.P. MORGAN SECURITIES, INC. : MARCH 2, 2001
ORDER
The plaintiff's verified complaint and motion for stay having
come before the Court pursuant to an order to show cause why a
stay should not issue as prayed for and the parties having been
fully heard, and it appearing to the Court that a stay ought to
issue and that, for good cause shown, the Court is of the opinion
that the stay ought to issue without bond,
These are therefore, by authority of the State of Connecticut,
to stay the final decision issued in this matter by the defendant,
Department of Public Utility Control, and to preserve the status
quo, pending further order of the Court.
Dated at
BY THE COURT
_________________________
JUDGE/CLERK
CV 01 0506963 : SUPERIOR COURT
CONNECTICUT COALITION : JUDICIAL DISTRICT
AGAINST MILLSTONE : OF NEW BRITAIN
v. :
CONNECTICUT DEPARTMENT :
OF PUBLIC UTILITY CONTROL; :
CONNECTICUT LIGHT & :
POWER COMPANY; :
UNITED ILLUMINATING :
COMPANY; :
DOMINION RESOURCES, INC.; :
DOMINION NUCLEAR CONNECTICUT, :
INC.; :
J.P. MORGAN SECURITIES, INC. : MARCH 2, 2001
SUMMONS
To any Proper Officer:
BY AUTHORITY OF THE STATE OF CONNECTICUT, you are hereby commanded to serve a true and attested copy of the foregoing Application for Order to Show Cause, Verification, Order to Show Cause, proposed unsigned Order and of this Summons upon the defendants on or before in the manner provided by law for the service of civil process.
________________________________
Commissioner of the Superior Court
Dated at Redding, Connecticut
This 2nd day of March, 2001
CERTIFICATION
This is to certify that a copy of the foregoing was mailed on March 2, 2001 to all counsel and parties of record, as follows:
Robert S. Golden, Esq.
Robert L. Marconi, Esq.
Office of the Attorney General
10 Franklin Square
New Britain CT 06051