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.

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.

“[T]he 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.

“[T]he 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.

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.