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Department of Public Service Commissioner Miller tells federal appeals court that VY license renewal by NRC was improper

Additional reporting by Commons reporter Olga Peters. Updated Wednesday, May 9, at 2:20 p.m.

BRATTLEBORO—The state of Vermont’s case against Entergy Corp., the owner of the Vermont Yankee nuclear power plant, took another turn on Wednesday, this time on the issue of water quality.

Department of Public Service (DPS) commissioner Elizabeth Miller presented oral arguments before the U.S. Court of Appeals in Washington, D.C., and argued that the U.S. Nuclear Regulatory Commission (NRC) violated its own regulatory requirements and those of the Clean Water Act, in issuing a new 20-year license to Entergy Vermont Yankee without a required water quality certification only the state can confer.

The Clean Water Act gives states the responsibility to determine whether a companies’ discharge to waterways conforms to state and federal standards, including Entergy’s heavy thermal pollution of the Connecticut River.

Section 401 of the act mandates that the state provide a “Water Quality Certification” before NRC can issue a nuclear operating license. Vermont Yankee’s original certification was obtained from the state in 1970 as part of the original 40-year license (which expired March 21, 2012) and was issued to Vermont Yankee’s original owners before the plant came on line in 1972.

In their petitions, filed separately but combined by the court for efficiency, the New England Coalition (NEC), an anti-nuclear organization, and the DPS, asked the court to review the U.S. Nuclear Regulatory Commission’s (NRC) decision to renew Vermont Yankee’s operating license until 2032.

The state of New York also filed a friend of the court brief in the case. New York State’s Department of Environmental Conservation’s (DEC) in April 2010 denied the critical and necessary Section 401 Water Quality Certification for the Entergy-owned Indian Point nuclear plants. Without the water quality certification, Indian Point cannot legally receive a renewed operating license when the current license expires in 2013.

“If the NRC had consistently enforced its own regulations and its mandate to protect the public health and safety, Entergy VY would have thrown in the towel long ago,” said NEC Technical Adviser Raymond Shadis. “Issuing the license without the required state permits speaks to the NRC’s true lack of oversight and follow-through in regulating nuclear plants.”

According to court documents, the state will contend that the NRC’s failure to obtain a 401 certificate renders the plant’s renewed license invalid. The NRC renewed Vermont Yankee’s operating license on March 21, 2011.

Processes built into the Clean Water Act dictate that the onus for obtaining a 401 certificate rests with the licensee and the awarding federal agency. The groups contend that the NRC’s license renewal is invalid because the commission never obtained and neglected to ask for a 401 certificate from Entergy.

In previous legal proceedings, Entergy has contended that the state and the NEC did not press the water permit issue during the NRC’s relicensing process, and that the water quality permit that the plant received in 1970 still is in effect.

Entergy also has an application pending before the Vermont Agency of Natural Resources for a new permit to allow Vermont Yankee to discharge heated water from its cooling system into the Connecticut River.

The Connecticut River Watershed Council (CRWC) has documented a sharp decline in American Shad and the active fly-fish tourism on the river near the plant, among other studies. CRWC has pressed the Vermont Agency of Natural Resources to act on pending renewal of Entergy Vermont Yankee’s water use and discharge permits.

Agency action on the pending permits would trigger an opportunity to then press for a hearing before Vermont’s Environmental Court.

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Originally published in The Commons issue #151 (Wednesday, May 9, 2012).

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