Conn. SC says nuclear plant can increase capacity

Jessica M. Karmasek Apr. 8, 2011, 2:38pm


HARTFORD, Conn. (Legal Newsline) -- The Connecticut Supreme Court says a nuclear power plant can continue to implement an increase in its electric power generating capacity in one of its nuclear reactors.

The plaintiff in the case, Nancy Burton, appealed a trial court judgment dismissing her complaint and denying her application for a temporary restraining order on the ground that the court lacked subject matter jurisdiction.

Burton, who represented herself, sought to prevent the defendant, Dominion Nuclear Connecticut, Inc., which owns and operates the Millstone Nuclear Power Station in the town of Waterford, from implementing, or continuing to implement, a 7 percent increase in electric power generating capacity in its Unit 3 nuclear reactor.

She alleged the increase would cause unreasonable pollution by significantly increasing the discharge of radioactive waste and raising the temperature of the cooling water released into Long Island Sound.

On appeal, she claims that the trial court improperly dismissed, for lack of standing, her complaint.

The state's high court affirmed the trial court's judgment. Justice Peter T. Zarella authored the Court's opinion, which will be officially released April 19.

"We conclude that the trial court properly dismissed the plaintiff's claim regarding an increase in the discharge of radioactive waste because Congress has preempted state authority in this area," it wrote. "We also conclude that the court properly dismissed her claim regarding an increase in the temperature of the thermal plume for lack of standing."

The Court said Burton, in her public nuisance claim, does not allege a personal injury arising from an incident at a nuclear power plant but "merely alleges that she and other members of the public might be injured at some future time from radioactive waste released into the environment."

That is despite, according to an environmental assessment, the amount of anticipated radioactivity fell well below the "as low as is reasonably achievable" regulatory guidelines.

The Court said Burton also failed to make a "colorable claim" sufficient to establish her standing because her complaint does not contain allegations of "substantive violations giving rise to unreasonable pollution."

Moreover, it said, she neither filed an affidavit containing her allegations "nor adduced evidence at the hearing on the motion to dismiss to remedy this defect."

The Court said Burton's allegations were "insufficient," relating almost exclusively to the effect of the increased water temperature on wildlife, fish and other aquatic organisms, as opposed to members of the public.

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