ATOMIC FIREWORKS

Connecticut Yankee doesn't make power any more - but it sure knows how to wield it.

By Carole Bass

We didn't see Blinky, the three-eyed mutant fish who lives downstream from the nuclear plant where Homer Simpson works. There was a Homer doll, though, greeting visitors to the info center at the Connecticut Yankee nuclear power plant in Haddam. And a pamphlet, designed to reassure, that could've come straight from The Simpsons.

"YOU MEAN I'M RADIOACTIVE?" asks the cover, with a drawing of a guy pointing at himself in shock and incredulity.

Open the flap and you get the answer: "YES!" And some more drawings, helpfully illustrating the pamphlet's message that "radiation is everywhere": the sun, rocks, tap water, my gas stove, your cigarettes.

It's natural, the pamphlet explains. "There is no cause for undue alarm." Still, "it is wise to avoid unnecessary exposure to large amounts of radiation." So, the pamphlet advises, take precautions: Get your house tested for radon.

Perhaps 100 yards from the info center stands a storehouse of radiation millions of times as powerful as anything in the illustrations. It's Connecticut Yankee's spent fuel pool: 1,019 fuel rods, which made the reactor glow and powered area homes and businesses during the plant's 28-year life, now chilling in a vast pool of water. Without the water, exposure would kill you within minutes.

As the fuel rods cool down (very, very slowly--they'll be deadly for many thousands of years), controversy over what to do with them is heating up.

Both sides say they're worried about protecting against nuclear accidents and terrorist attacks. Connecticut Yankee's critics in these scenic river towns also worry about another casualty: democracy. The company has used its economic, legal and political clout, they say, to trample local rights.

"The democratic process has been shot to hell," declares Nancy Burton, an anti-nuke activist and lawyer.

The reactor shut down for good in 1996. But nuclear waste has a way of outliving its usefulness, and Connecticut Yankee's is no exception. As part of "decommissioning" the plant--cleaning it up and, eventually, dismantling it--Connecticut Yankee wants to pull the plug on the fuel pool. It plans to pack the hot stuff into steel-and-concrete containers and store them about three-quarters of a mile away, off the riverfront but still on CY property.

The plan has sparked four lawsuits and a federal judge's order barring opponents from challenging the project in any court but his. It dominated last fall's town elections, in which--after the judge declared that the dispute "could bankrupt the town"--the Board of Selectmen shifted from a majority that opposed the plan to a majority that favored settling with Connecticut Yankee.

CY played hardball, suing Haddam twice for blocking the plan and waging a public relations campaign that echoed the judge's warning that fighting could bankrupt the town. Yet the company ended up agreeing, in January, to pay the town nearly $11 million to let it go forward. It won that settlement without having to prove its key legal claim: that federal nuclear laws trump Haddam's zoning authority.

Appeals are pending, and opponents remain: a neighboring landowner, a citizens' group and Burton, their relentless anti-nuke lawyer. But their legal options are narrowing. This month, Connecticut Yankee filed a contempt-of-court motion against Burton for continuing to challenge the project.

Moving the fuel would save Connecticut Yankee millions per year and make it easier to redevelop the spot where the plant now sits. The company insists that safety is its top priority, and that the new storage location is, in the words of spokeswoman Kelley Smith, "the safest and most secure site on our property." Critics question that, especially after Sept. 11.

Whatever the truth about safety--and remember, this is a company that wants you to worry more about your stove than about a nuclear meltdown--one thing is clear. Connecticut Yankee Atomic Power Co. no longer generates power. But it sure knows how to wield it.

Connecticut Yankee In Judge Nevas' Court

If not for the deadly radioactive waste, Connecticut Yankee's property sounds like a realtor's dream: 500-plus rolling, wooded acres along the Connecticut and Salmon rivers. Stately old farmhouses, tastefully updated, are sprinkled along the nearby roads, among McMansions with four-car garages designed to look like horse barns. Across the bridge in East Haddam, silver-haired bluebloods enjoy musicals at the Goodspeed Opera House.

The entire Connecticut Yankee property is zoned residential. But in 1962, the town of Haddam gave the company special permission to build and run a nuclear plant on a portion of the land.

The reactor started up in 1968 and, despite the efforts of a small group of anti-nuclear activists, most people in the area have paid little attention to the nuke in their midst. But then, two years ago, Connecticut Yankee asked the Haddam Planning & Zoning Commission to rezone part of the property for nuclear waste storage. The commission unanimously turned down the application.

The normal next step in a land-use case like that is a zoning appeal in state Superior Court. There, the court is required to give wide discretion to the local zoning board's decision. The disgruntled landowner has to prove not just that it would have been reasonable to say yes, but that it was unreasonable to say no.

Connecticut Yankee decided not to appeal the zoning vote. Instead, it sued Haddam in federal court. Its claim: The town has no authority over how Connecticut Yankee uses its land. Because the company is regulated by federal nuclear agencies, federal law preempts the local rules.

Haddam's response: The feds do preempt local authorities on the part of CY property that the town approved for nuclear activity 40 years ago. But not on the whole 500 acres.

In April 2001, U.S. District Judge Alan Nevas dismissed Connecticut Yankee's suit, saying it was premature. He suggested that CY apply for a town building permit and see what happened.

Haddam denied the permit.

Connecticut Yankee filed suit again.

But a few things happened in the meantime.

Talk of litigation bankrupting the town, for instance. At an April 6, 2001, hearing in the first suit, Judge Nevas called on Haddam citizens and officials to recognize that sooner or later, "this thing is going to get built," according to a transcript. "If they think they're going to stop it permanently, I think they're dreaming, and the longer it goes on, the more exposure they have to an enormous damage award, something that would--could bankrupt the town."

Connecticut Yankee picked up the theme. At a May 23, 2001, hearing, a company lawyer asserted that "the town has a limited insurance policy to answer for damages in this case. [...] The damages are mounting into the multimillions of dollars [...] and people should know what's coming."

The company also quoted Nevas in a mailing to all Haddam residents during the election season, touting a proposed settlement agreement.

Townspeople took the threat seriously, says Haddam First Selectman Tony Bondi, because they're still paying for a previous court outing against Connecticut Yankee--a tax appeal in which, he says, the town was "definitely wrong."

"The town, having been burned by that loss, has always been intimidated by CY," says Bondi, who's serving his second term.

Did the company feed those fears?

"They started the fire and let the people themselves fan it," he says. "If anyone assisted CY in scaring the hell out of this town, it was Judge Nevas' statement. If I were CY, that was the greatest thing he could have said. There goes your PR machine, and it was uphill from there."

Nevas' secretary says the judge "cannot comment on pending matters."

Two other important things happened after Nevas threw out Connecticut Yankee's first suit and before it filed the second. The company appealed the dismissal, so litigation continued to hang over the town. And Haddam held elections.

Bondi, a Democrat who opposed the nuclear storage plan, held onto his spot as top vote-getter. But his running mate, the plan's most vocal opponent, got voted off the board. Two Republican candidates were elected based on promises to settle the suit.

On Nov. 21, 2001, with a new 2-1 majority on the Board of Selectmen, Connecticut Yankee filed its new suit. It was randomly assigned to U.S. District Judge Janet Hall. On Dec. 3--before the town had filed any response, even a notice of which attorney would represent it--Connecticut Yankee asked Hall to transfer the case to Nevas. The company assured Hall that the lawyer who represented Haddam in the first case had said that he would handle this suit as well, and that he didn't object to the transfer.

The case was transferred and, on Dec. 18--still two days before the town's attorneys entered a formal appearance--Nevas scheduled a settlement conference with a federal magistrate. The date: Jan. 2, just seven business days later.

In less than three weeks, the negotiators had a proposed settlement under which Haddam would issue Connecticut Yankee's building permit and let the project go forward without the requested zone change. "My bargaining position was pretty much emasculated," Bondi says. On Jan. 23, the new Board of Selectmen approved the settlement, 2-1, with Bondi casting the "no" vote. Nevas then approved it in a federal court order.

Out of the Zone

That's when the fun began. Andrew Egri, an adjoining landowner, appealed the settlement to the 2nd Circuit U.S. Court of Appeals, where it awaits a hearing. His argument, as framed by Redding lawyer Nancy Burton: The federal court was wrong to override local zoning and building authorities.

State Attorney General Dick Blumenthal agrees. He filed a friend-of-the-court brief contending that the selectmen had no authority to bargain away the zoning commission's decision, and the court had no authority to approve the deal. Since local zoning laws stem from state legislation, the feds are trampling on the state's rights, he says.

Nevas never ruled on Connecticut Yankee's central claim, that federal regulation preempts local authority in this case. Burton filed a motion asking him to decide that question.

Then Egri, Haddam resident Ed Munster (yep, it's his real name) and a new group called Neighbors Opposed to Residential Atomic Dumps, or NORAD, filed suit in state Superior Court, saying the Board of Selectmen lacked the legal power to settle the federal suit with Connecticut Yankee. CY got the case moved to federal court.

The company also asked Judge Nevas for an order barring Egri, Munster, NORAD and Burton from "seeking any judgment or administrative ruling that would invalidate or otherwise interfere with implementation" of the settlement. In other words: You got a problem with this deal, you gotta see Nevas. Nobody else has jurisdiction.

The judge issued the order as a permanent injunction. And he's made it clear he intends to enforce it.

After Burton filed two more suits in state court--one challenging a wetlands permit and one claiming the site has historical and archeological significance--Connecticut Yankee asked Nevas to find her in contempt of his permanent injunction. The judge transferred both cases to himself, along with Egri, Munster and NORAD's state court challenge to the settlement agreement, and scheduled a July 1 hearing on the contempt motion. Last week he dismissed the challenge to the settlement.

Burton has a long history of feuding with judges. Last year, a state judge ordered her disbarred without even going through the established lawyer-discipline system. She's allowed to continue practicing law while appealing that order. If Nevas finds Burton in contempt of court, he could order her to pay a fine to Connecticut Yankee.

Burton says she's done nothing wrong. In her view, Nevas' injunction covers the building permit but not other oversight of the storage project. But the judge's order "has paralyzed the building enforcement process," she says. "It has paralyzed wetlands enforcement. There are cascading, rippling effects."

Cask of Thousands

Why all the fuss over moving nuclear waste just three-quarters of a mile? For Tony Bondi, the first selectman, it's a zoning issue, pure and simple.

"I have people who apply for building permits every day in this town" and get approved or turned down on the merits, he says. "I don't think it's fair that because you're big and glamorous, you've got deep pockets and a good PR machine," that Connecticut Yankee should get special treatment.

But as far as he's concerned, the fight is over and he's cooperating fully. "We live by the majority rule. The majority of my board voted to do something, and I will honor that."

Others criticize not just the legal process, but the plan itself.

From the enclosed fuel pool, Connecticut Yankee will move the fuel rods into steel canisters, encased in 21-inch-thick reinforced concrete casks. The casks--43 in all--will sit on a concrete pad, roughly the size of a hockey rink, that CY will build in a spot it has already cleared in the woods.

Kelley Smith, the company spokeswoman, says dry cask storage has several advantages over the fuel pool. Money, for one: The pool needs pumps, pipes, valves, all of which have to be maintained at a cost of "at least a couple of million" dollars a year. The casks are "passive" storage: Once they're built and filled, they just sit there.

Second, Smith says, the fuel pool interferes with Connecticut Yankee's decommissioning process. The plan is to have the entire plant cleaned up and demolished by 2004. That includes the fuel pool.

Nobody ever expected Connecticut Yankee to store spent fuel in Haddam for so many years. The federal government is legally responsible for used reactor fuel. Like nuclear power companies all over the country, CY expected the feds to license a long-term storage facility where operators could ship their high-level radioactive waste.

Such a dump, of course, is the ultimate NIMBY issue, and political opposition has delayed plans for decades. Connecticut Yankee is hoping that Congress will approve a licensing process for a dump at Yucca Mountain, Nevada. But even if that goes through, Haddam is stuck with the stuff for a decade or so.

Which leads to the third advantage of dry cask storage, Smith says: The canisters are designed for both storage and transport. So if and when Yucca Mountain comes on line, the stuff is ready to go.

Once it decided on dry cask storage, Connecticut Yankee looked at eight possible locations on its property, Smith says. Some, she says, were within the "footprint" of the existing plant, where critics say the company should build. But the spot CY picked is best.

It's set in a hollow, shielded by hills, invisible from the Connecticut and Salmon rivers--and, therefore, less vulnerable to terrorist attack, Smith says.

Neil Sheridan, who lives in East Haddam and belongs to the NORAD opposition group, notes that the fuel pool building is "reasonably camouflaged" amid the rest of the plant. The dry cask storage pad, by contrast, will be easily spotted from a plane. "We're exposing the lower Connecticut River Valley to extreme risk of terrorist attack," Sheridan says. "We're just not using our heads."

But Connecticut Yankee plans to tear down all the buildings, Smith points out. If the fuel pool remained, it would be highly visible. The dry cask pad "is going to be visible from the air no matter where we put it."

What's more, she observes, the chosen spot is on higher ground, and so less likely to flood, than the riverfront site where the fuel now sits.

Keith Ainsworth buys all those arguments. A Republican elected to the Haddam Board of Selectmen last year, he thinks the town "should have been working with CY to resolve the fuel storage problem" all along. And, he says, the dry cask plan is an improvement over the status quo.

"Nobody steamrolled anybody," he says. "This was an intelligent decision made with a great deal of thought ... in the best interests of the town and the region."

A Stream Runs Through It

The plan's opponents raise other environmental and safety concerns. In 1997, a state consultant testified that Connecticut Yankee's abysmal safety practices had resulted in radioactive contamination on many parts of the Haddam property, including some roughly in the vicinity of where the company now wants to store its spent fuel. Management had been so lax, the consultant said, that CY didn't know how much contamination it had, or where.

Critics point to that testimony to argue that the soil near the planned storage site is likely radioactive. A nearby stream and beaver pond could pick up that radiation and carry it off, they fear. What's more, Connecticut Yankee didn't tell the Haddam Inland Wetlands Commission about the stream and pond when it got a permit to work near the storage site in 2000, the critics claim. That's part of their suit asking that the wetlands permit be revoked.

Smith says the company "provided accurate information to the wetlands commission" and that the permit remains valid. Since the 1997 consultant's testimony, Connecticut Yankee has been testing and cleaning up its property under federal supervision, she says. The feds will also supervise work on and around the storage pad.

One more group is trying to block the project, at least temporarily: friends of Venture Smith.

Smith was an African prince, kidnapped into slavery, who eventually bought his freedom and owned a number of houses and boats in the Haddam area. Local historians and one of Smith's direct descendants say he owned land very near, if not directly on, the proposed storage site. Preliminary archeological finds indicate that it could be a valuable site, possibly a Smith homestead, they say. They want construction blocked until more archaeological work can be done. And they say a nuclear dump would defile a site that's potentially rich in African-American history.

Connecticut Yankee's Kelley Smith responds that the Connecticut Historical Commission found no significant value on the storage site itself. Archaeologists are continuing to explore the nearby area where they think Venture Smith lived.

"This Thing Is Going to Get Built"

In the end, Judge Nevas may be right: "this thing is going to get built," and people who think they can stop it are "dreaming."

And in the end, Connecticut Yankee's Kelley Smith may be right that the company's plan makes the best of a bad situation.

But the how will continue to rankle.

It will be built through the efforts of a company that sees itself as beyond the reach of town authority and a judge who seems to think it his duty to make sure the project gets built.

"We tried to work with the town, trying to be a good neighbor" by going through the zoning process, Smith says.

But when the zoning commission said no, the company decided to change the rules.

Smith says Connecticut Yankee never tried to intimidate anybody. The company sued Haddam for damages because delays in the project would cost ratepayers, including Haddam residents, she says. "We have a fiduciary obligation to protect the ratepayers. It wasn't an intimidation factor. It was a protection factor."

Noting that CY announced its storage plan in May 2000, Smith adds: "This process has taken two years. To insinuate that we steamrolled things isn't really accurate."

The bottom line, she says, is this: "We can't compromise safety. And we never will. The decisions we made were driven by that concern."

But it's not just Nancy Burton, a confirmed no-nuker, who's outraged by the company's conduct. Ask Ed Munster, a former Republican state representative and two-time congressional candidate turned Connecticut Yankee opponent.

"The illegal aspects of the agreement which has been made into a federal court order threaten the zoning regulations of the State of Connecticut and for that matter local zoning throughout the country," Munster writes in an e-mail interview. "I had always been a supporter of the production of power by nuclear energy. Up until the recent actions of CY [...] I would have considered myself to be a friend of CY and the industry. Their recent actions have caused me to rethink my opinion of the company." *

Full Bench Press

A judicial exchange.

You could forgive opponents of Connecticut Yankee's nuclear waste storage plan for getting the idea that U.S. District Court Judge Alan Nevas is biased on the subject. When the company sued the town of Haddam for blocking the storage plan, Nevas repeatedly urged the town to give in. Haddam had denied Connecticut Yankee's request for a zone change. The company claimed that federal nuclear law preempts the local zoning powers. Nevas never ruled on that question.

Below are excerpts from a transcript of an April 6, 2001, hearing in the case.

Nevas: I understand the position that the public officials are in. They're sort of caught in the middle, and certainly, I understand Connecticut Yankee's position. Isn't now the time to resolve all this or to resolve the core issue, and the core issue is preemption--to resolve it now, rather than a month from now or two months from now where everybody has gotten enraged because, as the average citizen views it, Connecticut Yankee is trying to run roughshod over us. [...]

Haddam's attorney, Thomas Gerarde: Your Honor, I understand from the limited perspective of keeping the tempers down and keeping the level of confrontation down that maybe now--resolving issues sooner rather than later always helps, but this is the problem. You don't know what to grab onto when deciding what's preempted and what isn't. [...]

Nevas: A concern from your point of view or your client's point of view is that if, in fact, [Connecticut Yankee does] have the power to recover all these costs [caused by the zoning denial], and you ultimately lose [...] your clients are going to be liable for an enormous amount of money--huge amount of money.

Gerarde: Am I supposed to respond to that, Your Honor?

Nevas: Well, no. I'm--it's rhetorical on my part. [...]

Gerarde: All right. So we understand there's an awful lot at stake, and I agree with Your Honor, but if we're going to lose, we're going to have to lose on a live justiciable controversy that we can take to the 2nd Circuit [Court of Appeals], if necessary, so that we say that Judge Nevas looked at a, b, c, and d [...] and he determined that it was preempted or not preempted. [...]

Nevas: But isn't the danger here [...] that local officials have a different agenda than national officials? That is to says [...] if local officials for purely local political reasons [...] the town says we don't want it because we just don't like the idea of having it, the neighbors are unhappy about it [...], we want to get re-elected, so we're--you can't do it. [...] The town says you can't do it, and the facility says well, we have to do it. There are good reasonable scientific appropriate reasons which any neutral would concede--make it appropriate for us to do this. That's the conflict here.

Gerarde: Well, that is a--that's an interesting theoretical conflict. It's good topic for debate, but it's not in this courtroom. [...] I don't think you can preempt Haddam for something its officials haven't done yet. [...] They might say no, we don't think you can do that, and here are our reasons, and those reasons might be legitimate land use reasons once Your Honor looks at them and understands what the whole scenario is. [...]

Nevas: It seems to me that the people in Haddam, particularly the public officials, should recognize, whether it's tomorrow or next week or next month or next year, this thing is going to get built, and if they think they're going to stop it permanently, I think they're dreaming, and the longer it goes on, the more exposure they have to an enormous damage award, something that would--could bankrupt the town. [...] I can't be any clearer, whether it's me or some other judge, this thing is going to get built, and you better recognize it. OK.

Carole Bass can be reached at cbass@newhavenadvocate.com