November 4, 2014
Commissioner Robert Klee
Department of Energy & Environmental Protection
79 Elm Street
Hartford, CT 06106-5127
Via electronic mail
RE: Marker buoys in Connecticut River at Connecticut Yankee
Dear Commissioner Klee,
After careful evaluation of CT DEEP’s 2013 issuance of an after-the-fact permit to deploy regulatory marker buoys at the mouth of the Connecticut River channel at the former Connecticut Yankee site, we are requesting that you restart the permit process. The consequences of CY’s actions are to entirely block over 1 mile of navigable waters that are clearly held in the public trust.
The Connecticut River Watershed Council works in all four states of the watershed on issues that impact the public’s water and public trust resources. We see this issue as one of central importance to our mission.
While we understand the significant security issues that must be considered by Connecticut Yankee as it manages the portion of their property with the spent fuel rod storage facility, we are not convinced that their application to deploy the regulatory marker buoys was sufficiently documented nor given enough opportunity to be evaluated by the relevant programs and members of the public. The application was clearly deficient and contained misrepresentations. In addition they have failed to apply for either a state structures, dredging, and fill permit or an individual Section 10 permit from the US Army Corp of Engineers.
We are concerned that there are a number of significant issues that were not given enough airing and opportunity for comment in the granting of the after-the-fact permit. These include:
- the misrepresentation of the subject waterbody on the permit application as “man-made canal within the Connecticut Yankee private property boundaries” rather than as the Connecticut River
- the misrepresentation that NRC regulations required this action to be taken when in fact they do not
- the failure of the application to include any information sufficient to “review for possible conflicts with various water use groups”
- the fact that the facility was in compliance with all NRC regulations regarding safety in 2012 at a time before the buoys were deployed
- deploying the boom without obtaining a state structures, dredging, and fill permit
- deploying the boom without obtaining a US Army Corp Section 10 individual permit
In addition we are puzzled by some annotations on the marker permit application that amend the permit application cover page to alter the category of the permit. This initialed alteration is dated 10/9/13, which is two weeks after the permit was authorized by boating division staff. It is unclear as to the author, intent, or effect of the annotations, but it strikes notations that described the marker as being “Danger/Hazard” and “Navigation” and adds a check to the “Information” box and hand writes “Restricted” and “control access to site.” We are puzzled by these amendments and would ask for clarification as to their purpose, timing, and effect on the basis of the agency’s decision making. Since we are not familiar with boating division permits we are uncertain how this page relates to the rest of the application and permit. Is this page part of the issued after-the-fact permit? I have attached a scan of the application page to this letter for your reference.
The process to date has eliminated any formal discussion of alternatives and discernment of the basis for CY’s discretionary action to deploy the barrier. It is our understanding from the information that has been gathered by members of the public that CY’s actions appear to be driven by concerns over insurance liability rather than the falsely asserted NRC requirements. This has in effect put their cost considerations ahead of the public’s legal interest in, and access to, their water.
If the public is being asked to give up its access to over a mile of its water there has to be more justification provided that accurately portrays CY’s regulatory obligations and sufficient public process around your Department’s decision making. Our concern stems from the after-the-fact application process itself which allowed CY to pack a very significant proposal into a short two-page form that was not designed to consider proposals such as theirs. For example the form asks for the justification to be “briefly” described. CY’s answer was a one sentence cite to two different lengthy NRC regulations with no further explanation or justification. This does not provide the permit reviewer – or the public – with information commensurate with the scale of this project. It simply wields the ostensible mandate of the NRC in order to push past reasonable scrutiny that we are confident your staff would be well able to apply were they to have all required and complete applications in front of them.
In addition from the information provided to the public it is not clear to what extent staff in fisheries, radiation, boating, and the Office of Long Island Sound Programs evaluated the NRC regulations as justification for the marker buoys in their review of the material as well as the other criteria in the application, including the provision on use conflicts. Information provided to the public to date is not clear as to the extent of review by the programs that have jurisdictional responsibilities for the trust resources affected by this proposal.
It seems from recent press stories that there has been some discussion of perhaps moving the marker buoys farther back into the canal channel. We do not think that is a sufficient response at this point.
We would offer several reasonable actions that your Department could take in order to rectify this very problematic situation. They include:
You request Connecticut Yankee to reapply for the boating division permit with a complete application that includes a thorough description of the basis for this action. You request CY to submit the required state structures, dredging, and fill permit and an individual Section 10 US Army Corp permit. These permit application should be scoped with CY prior to resubmission so that they include sufficient information that is responsive to the many issues raised since last August by members of the public and all the relevant statutory criteria. CY should concurrently re-apply to your department, the Town of Haddam, and the US Army Corp so that all the relevant statutory and regulatory issues can be evaluated by the public.
We are confident that CY is interested in ensuring they are in full compliance with state and federal law and so will avail themselves of this offer.
Should CY not choose to take the reasonable approach of starting over, we would request that you exercise your authority as described in the Department’s Rules of Practice that allow you to reconsider final agency actions. At Sections 22a-3a, subsection 6(z) it provides:
(1) On motion made or his own initiative, the Commissioner may reconsider, reverse,
modify, or correct a final decision in accordance with section 4-181a of the General
Statutes. In addition, the Commissioner may open a final decision upon a showing that
(A) the final decision was prejudiced by fraud, misrepresentation, or other misconduct of
a party or intervenor or
(B) there is other compelling reason for opening the final decision [emphasis added]
We think the applicable portion of this regulation begins with the additional authority (in italics above) granted to you beyond what is stipulated in CGS Section 4-181a. Because the criteria in subsections (A) and (B) above are in addition to what is in statute at 4-181a, it is our understanding that your own motion to reconsider and so reopen the boating division permit remains timely.
We believe there is misrepresentation of the legal status of the Connecticut River as well as NRC requirements made by CY. As well there is also clearly compelling reason for you to revisit this decision given the precedent of entirely blocking over a mile of navigable waterway with so many members of the public expressing concern and the failure to evaluate all relevant criteria applicable to regulatory markers.
And if CY does not agree to file a state structure, dredging, and fill permit we would ask that your Department undertake any authorized enforcement actions in regard to this failure to submit a required permit application. It has been over a year that an unauthorized structure has been deployed in state waters without the necessary permits. We will be asking the same of the US Army Corp.
There are a great many members of the public that are concerned about the implications of this decision, so I appreciate your thoughtful consideration of how to proceed.
Thank you for your engagement on this issue and I look forward to your response.
Andrew Fisk, Ph.D.
 The CT Programmatic General Permit states that in order for projects to qualify for general permit coverage that “[t]here shall be no unreasonable interference with navigation by the existence or use of the activity authorized herein, and no attempt shall be made by the permittee to prevent the full and free use by the public of all navigable waters at or adjacent to the activity authorized herein.” See Condition 13 of the CT PGP.
Melissa Schlag, Town of Haddam, Chair CY Citizen’s Advisory Committee
Peter Aarrestad, CT DEEP
Michael Payton, CT DEEP
Betsey Wingfield, CT DEEP
Brian Thompson, CT DEEP
Eleanor Mariani, CT DEEP
Brantley Buerger, CY
Senator Art Linares, via staff
Representative Phil Miller
Melvin Woody, Chair, CT River Gateway Commission via staff
US Army Corp of Engineers, Regulatory Affairs, New England Office
Amy Blaymore Patterson, CT Land Conservation Council
Margaret Miner, Rivers Alliance