{news} Nancy Burton wins against Millstone nuclear plant

[David Bedell]

http://www.fairfieldweekly.com/article.cfm?aid=13217

Gone Fission
Anti-nuke activist Nancy Burton wins an unlikely victory against the
Millstone nuclear power plant

Thursday, June 04, 2009
By Andy Bromage

Judges threw her lawsuits out of court by the dozen. The attorney general
said she shouldn't be suing at all. State regulators called her claims
"baseless." Critics called her a Quixotic crank.

Against that backdrop, longtime anti-nuke activist Nancy Burton has won the
unlikeliest of victories in her decade-long quest to shut down the Millstone
nuclear power plant in Waterford.

The state Supreme Court, in a landmark decision, ruled two weeks ago that
Burton has legal standing to sue the state for failure to enforce pollution
standards set out in the Connecticut Environmental Protection Act.

Millstone sucks water from Long Island Sound to cool its reactors,
pulverizing billions of fish and fish eggs in the process. It then pumps the
heated water back into the Sound, posing what Burton says is a radioactive
hazard to human health.

Burton's win represents a huge victory for the rights of average citizens to
protect our air and water from polluters, and from regulators who would look
the other way. The state's highest court had flip-flopped on whether
citizens have standing to sue a polluter while their permit application is
pending before a state agency. The court mostly held that they must wait
until the state had done its thing.

That tied the hands of environmental watchdog groups who could do little but
watch while the tediously slow regulatory process would grind on. In
Millstone's case, the state has allowed it to run on an expired "emergency"
water discharge permit for the past 11 years, and only last fall finally
kicked off hearings to grant them a renewed permit.

The court ruling clarifies once and for all that citizens can sue before
state regulators are finished, provided they can show reasonable evidence
that active polluting is exceeding allowable limits. So for example, if a
local coal plant is belching toxic emissions beyond what the Clean Air Act
allows and regulators fail to control it, citizens can sue and force the
power plant to clean up its act.

In leading the crusade against Millstone, Burton has been dismissed,
ridiculed and - after publicly accusing judges of corruption without
evidence - disbarred as an attorney. Now as a citizen, Burton has earned the
last laugh and secured what no lawyer has been able to get: an unequivocal
ruling by the state's highest court restoring citizen environmentalists'
right to have their day in court.

For all that, Burton says the court's ruling doesn't surprise her one bit.

"The law is really clear," she says. "I knew that eventually the Supreme
Court would have to come to terms with the statute."

Burton alleges the state Department of Environmental Protection has failed
to control excess pollution at Millstone and has prejudged Millstone's
application by signing a deal with Millstone and an environmental group
before public hearings had even begun (more on that in a minute). She also
says the DEP hearing officer overseeing the proceedings should be removed
because she spent almost a decade working with the nuclear industry at an
agency that handled low-level radioactive waste.

Burton wants a judge to intervene in the case and force Millstone's owner,
Dominion Nuclear Connecticut, to install a closed-loop cooling system. Those
systems recycle water to cool reactors and can reduce fish kills by 90
percent.

Last fall, the DEP struck a three-way deal with Dominion and the Connecticut
Fund for the Environment (CFE) meant to expedite the permitting process. The
environmental group agreed not to challenge the permit application in
exchange for Millstone agreeing to convert its cooling system to whatever
the company's newest study concludes is the "best technology available."
CFE's expectation is that when the study comes out in 2012, closed-loop
cooling will be the best available.

That truce meant Burton was the only one aggressively cross-examining
Millstone officials and witnesses during a series of public hearings earlier
this year.

"We chose a different route," says Roger Reynolds, an attorney with CFE. "We
wanted certain action by the agency within a two or three year time period
as opposed to what we thought might be litigating for substantially longer
with an uncertain outcome."

Still, Reynolds says Burton's ruling is important for what it does to
restore a citizen's right to intervene.

"This gives the court the ability to decide the agency is not doing its
job," Reynolds says. "The whole point of the law is to give citizens a check
over agencies that may not be acting aggressively enough."

Now Burton can present a court with evidence to back up her claim that
Millstone is "a 24-hour fish-killing machine that's illegally dumping waste
into Long Island Sound."

DEP Deputy Commissioner Amey Marrella defends the agency's permitting
process, noting that reviewing the nuclear plant's application is a "highly
complex and complicated issue." Dominion spokesman Jim Norvelle says the
company is "disappointed" with the court's decision and is confident that
lower courts will back the state's permitting procedure as sufficient to
protect the environment.

"We are further confident that the Superior Court will conclude there is no
merit to either Ms. Burton's claim of bias on the part of the DEP hearing
officer or her claim of prejudgment by the DEP commissioner regarding
Millstone's application," Norvelle says.

Norvelle might be right, but Burton's recent triumph shows her adversaries
dismiss her at their own peril.

Ask Burton what comes next, and you won't get some convoluted legal road
map.

"The next step is to shut Millstone," she says bluntly. "This lets citizens
go to the court to close the plant under the Connecticut Environmental
Protection Act."

But if Burton's won a battle, her war is just beginning. Her victory only
gives her legal standing to present a court with evidence that Millstone is
exceeding pollution standards and the state is letting it happen. Now comes
the hard sell of persuading a judge that the state is ignoring a serial
polluter because regulators are in bed with the nuclear industry.

No easy task, for sure, but Burton sees a ray of hope. Regulators in
Virginia recently rejected a new permit for a Dominion-owned nuclear plant
there because the discharge was raising a lake's temperature to ecologically
destructive levels.

"So there's hope," Burton says.