D.C. Circuit considers if NRC prematurely approved Vermont Yankee extension

The U.S. Court of Appeals for the District of Columbia Circuit heard arguments May 9 on whether the Nuclear Regulatory Commission (NRC) improperly issued a 20-year license extension to the Vermont Yankee nuclear plant without first ensuring that the Entergy (NYSE: ETR) facility complied with a Clean Water Act standard.

The Vermont Department of Public Service and the New England Coalition maintain that NRC did not establish that Vermont Yankee was in compliance with Section 401 of the Clean Water Act before issuing the roughly 600-MW nuclear plant a 20-year extension in 2011.

The NRC and Entergy argue that the time has passed for the petitioners to litigate this issue.

Meanwhile, the three-judge panel that heard the case still had an issue or two to clear up at the end of oral arguments. After briefly huddling with Judge Judith Rogers and Judge Merrick Garland, Judge Karen Henderson gave participants in the case 10 days to file additional information about the status of a Vermont Yankee Clean Water Act certification case before a Vermont state agency.

Elizabeth Miller of the Vermont Department of Public Service argued that NRC issued the 20-year license renewal without first seeing to it that Vermont Yankee was in compliance with Section 401 of the Clean Water Act. Miller wants the appeals court to send the relicensing case back to NRC for consideration in light of Section 401 certification.

Judge Garland and other members of the panel peppered Miller with questions on whether the state had properly exhausted its legal options with the NRC and its Atomic Safety Licensing Board panel. “I don’t understand why you didn’t have to ask the NRC first,” Garland said.

Miller argued the Clean Water Act issue is not typically something that the NRC oversees, so the matter was properly before the appeals court. But NRC attorney Sean Croston contended that the appeals court should dismiss the case purely because Vermont failed to properly pursue its Clean Water Act certification argument before ASLB and the NRC commission. The petitioners had many opportunities to raise the issue during the administrative proceedings prior to bringing it into federal appeals court, Croston said.

The NRC license extension for Vermont Yankee should keep the plant running until 2032 – unless it is overturned. But the case before the D.C. Circuit is not the only Vermont appeal involving Vermont Yankee.

In the 2nd U.S. Circuit Court of Appeals, Vermont is challenging a federal district judge’s ruling in January. U.S. District Court Judge J. Garvan Murtha has invalidated two Vermont statutes that could have effectively forced the plant to close. Judge Murtha in federal court in Vermont had ruled that Vermont’s policy would infringe upon NRC’s jurisdiction over nuclear power plant safety.

The state had wanted the plant retired in March of this year, when its first NRC license expired and when the state’s “certificate of public good” expired.

As for the case before the D.C. Circuit, sources say the appeals court typically decides most cases within six months. The D.C. Circuit Court of Appeals case number is 11-1168.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.