Appeals court hands NRC a victory in Yankee license case

Vermont Yankee nuclear power plant.

A federal court handed the Nuclear Regulatory Commission (NRC) a win Tuesday in a case where the state challenged the federal agency’s permit for the Vermont Yankee nuclear power plant.

The Vermont Department of Public Service (DPS) and the New England Coalition (NEC) — a group that has worked to shutter Vermont Yankee — had argued that the federal permit issued in 2011 was invalid because Entergy Corp., the plant’s owner, failed to obtain certification from the state that the plant’s operation would not affect water quality in Vermont.

But a three-judge panel of the D.C. Circuit Court of Appeals declined to address the issue.

The plant’s original owner, Vermont Yankee Nuclear Power Corp., received the water quality certification under the Clean Water Act in 1970, but Entergy, the plant’s owner since 2002, did not get a new certification when it applied for its current federal permit in 2006.

The petitioners here were required under agency regulations to afford the full Commission an opportunity to pass on the section 401 issue before seeking judicial review. And they had repeated opportunities to do so,” the court’s decision reads.

Between 2006 and 2011, the state and the New England Coalition never brought the issue to the Nuclear Regulatory Commission, although NEC did raise the issue with the Atomic Safety and Licensing Board.

Since the state and the environmental group never brought the issue up during that time, the court refused to hear their case.

The petitioners here were required under agency regulations to afford the full Commission an opportunity to pass on the section 401 issue before seeking judicial review. And they had repeated opportunities to do so,” the court’s decision reads.

After raising the issue with the board, the state and NEC did not bring it up until after Vermont Yankee got a new license.

The petitioners sat silent for two and one-half years thereafter, raising their section 401 objection only after the Commission issued the license renewal in March 2011,” the decision reads.

Neil Sheehan, public affairs officer for the Nuclear Regulatory Commission Region I, said the federal regulators basically argued that if the state had wanted to raise the issue, it had four-plus years to do so after Entergy applied for a new license.

“We said they had multiple opportunities to bring this up,” he said. “For instance, when the Atomic Safety and Licensing Board ruled, it made very clear that if there were any other issues that the state or groups wanted to bring up, they could.”

State officials said the decision failed to address the real issue of water quality but instead focused on procedural nuances.

John Beling, director of the Department of Public Service Public Advocacy Division, said in an e-mail to VTDigger.org: “We are disappointed that the court declined to address the substantive water quality issue Petitioners raised, instead finding that it should have been pursued further at the NRC. We felt strongly that the court should accept the petition that Vermont Yankee’s water quality certificate from 1970 is not adequate to cover another twenty year federal license.”

Beling said the department is focused on the future, as the Public Service Board proceeding to determine the fate of the plant’s state license unfolds over the next year. The Vermont Agency of Natural Resources is currently pursuing water quality issues dealing with the plant’s thermal discharge permit.

“It seems to me the court got led down the rabbit hole of procedural nuance within the byzantine halls of the Nuclear Regulatory Commission.”

Chris Kilian

Conservation Law Foundation

Chris Kilian, vice president and director of the Conservation Law Foundation in Vermont — the firm that represented the New England Coalition, said it was unfortunate that the court’s decision deprived the state of the opportunity to ensure the plant’s continued operation does not affect the state’s clean water.

“It seems to me the court got led down the rabbit hole of procedural nuance within the byzantine halls of the Nuclear Regulatory Commission,” he said.

Kilian said it is unfortunate that the court missed the primary point that Congress intended to have the state and its citizens have primary control over protecting their waters and instead focused on procedural nuances.

The state and New England Coalition will discuss whether to appeal the case either for a rehearing before the entire D.C. Circuit or with the U.S. Supreme Court.

The decision deals another blow to the state of Vermont and local citizens groups trying to shutter the plant.

In January, a federal judge found two state laws requiring legislative approval for the plant to continue operating were unconstitutional. The state and Entergy are both appealing that decision to the Second Circuit Court of Appeals.

Entergy is also seeking a certificate of public good from state utility regulators in light of the January decision that found the state could not bar the company from getting that permit without first getting approval from the Legislature.


Comments

  1. William Wallis :

    Democracy is dead in America.

    http://video.pbs.org/video/2202847024

    • Patrick Cashman :

      It is the job of the courts to uphold the law, not to bow to or enforce the whims of any special interest group.

  2. “[T]he petitioners sat silent for two and one-half years thereafter …”

    Hmmmmmmmm, sounds like Louisiana Entergy’s arguments could have a tough time in this appeals court.

  3. David klein :

    *&^%%$$$##$%^!!!!

  4. Hattie Nestel :

    Hogwash for the D.C. court of Appeals. As in bed with the industry as the NRC is. Hattie Nestel

  5. Renée Carpenter :

    The decision also seems to fail to consider increased water temperatures released by Entergy VT Yankee into the Connecticut River since the original permit, thus destroying the ecology of the river.

    And it also doesn’t seem to consider Entergy’s ongoing contamination of groundwater with tritium leaking from pipes Entergy lied about the existence of. Groundwater is protected by state law as part of the Public Trust.

    I applaud the efforts of the state and NEC (and other groups) to maintain the rights of Vermonters to shut down this contaminating hazard to our environment, and the health of future generations. Vermont is not even using any of the electricity being generated (when it’s operating at full capacity, which it is not).

    At a panel discussion last night in Montpelier about the complexities and nuances of these legal decisions in light of the need to successfully contain the nuclear waste in the course of decommissioning, it is clear that we–the public–need to know much more. I was disappointed not to see a vtdigger reporter in the audience. Maybe I missed it?

  6. lex luther :

    Seems like piss-poor layering to me. Had NEC petitioned the Commission for review, it could have sought judicial review of NRC’s decision to grant the permit. Unfortunately, NEC failed to pursue its administrative remedies and thus lost out on the opportunity to appeal. Maybe next time they will comply with agency regulations.

  7. Coleman Dunnar :

    Chris Kilian, “It seems to me the court got led down the rabbit hole of procedural nuance …”
    Chris those procedural nuances are there for a reason – to insure a fair process.
    This is three for three at the federal level for Vermont – the first went down on constitutional grounds, the second was so egregious the Judges inferred “blackmail” in the dicta and now number three – a frivolous attempt to end run the process.
    Sorrell and the DPS are making a great impression in front of the federal courts and sending a strong negative message to anyone thinking of doing business with Vermont.

  8. As the VY plant undergoes more repairs (both mechanical and bureaucratic) its benefactors continue to shower down blessings, voiding the rule of Law and banishing the notion of industry regulation for ecological safety. As a Nation we have been FEDered. States not only have a right in the regulation of nuclear plants, it is mandated by US Code.

    The States obligation to uphold the Law has no time constraints nor does it carry the burden of proof.

    http://www.fairewinds.com/content/decommissioning-vermont-yankee-nuclear-power-plant-and-storing-its-radioactive-waste

  9. Sally Shaw :

    Expecting impartial review from NRC is like expecting your nuclear waste problem to magically disappear. The fact that the pro-Entergy Douglas Administration failed to advocate for the river and the public interest for 8 years before finally a new DEP stepped up to the plate and stood up for Vermonters apparently didn’t register with these lazy judges. The NRC Administrative Process exists for one purpose: to provide cover for aging, failing nukes. There is NO real opportunity for the public to influence their preordained decisions. And then if NRC rubber stamp decisions are appealed, the courts just defer to the agency. This will end, my friends, with another Fukushima in this country. NRC wants to relicense all the old relict nukes, and then retire with their fat pensions. States rights, human rights, civil rights be damned.

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