D.C. Circuit rules against state in Entergy Vermont Yankee appeal

The U.S. Court of Appeals for the District of Columbia Circuit has rejected a legal challenge to the Nuclear Regulatory Commission’s (NRC) issuance of a 20-year license renewal for Entergy’s (NYSE: ETR) Vermont Yankee nuclear plant.

In a ruling returned June 26, a three-judge panel for the D.C. Circuit rejected arguments by the Vermont Department of Public Service and the New England Coalition saying that NRC’s license renewal was unlawful because Entergy Nuclear Vermont Yankee LLC had failed to provide a state Water Quality Certification, which the state and NEC said was required under law.

“We conclude the petitioners waived their WQC objection because they repeatedly failed to present it directly to the Commission and thereby failed to exhaust their administrative remedies,” the court said in a ruling drafted by Judge Karen LeCraft Henderson.

This was a quick turnaround for the appeals court given that the case was only argued May 9 and the decision was issued June 26.

This is not the only legal challenge left, however, for Entergy’s 600-MW Vermont Yankee plant. 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 safety.

The Atomic Energy Act (AEA) gives NRC authority to license nuclear plants.

In the current case, the 1970 Federal Water Pollution Control Act, the precursor to the Clean Water Act, had required that all federal licenses address any discharge into the navigable waters of the United States.

Accordingly, because Vermont Yankee planned to use water from the Connecticut River to cool its reactor and then discharge the water back into the river, Entergy’s predecessor licensee obtained a WQC from the state of Vermont in October 1970 to support its operating license application.

In January 2006, Entergy applied to the NRC for a 20-year renewal of the Vermont Yankee operating license, which was set to expire in March 2012. The state and NEC opposed the license renewal at NRC on several grounds.

The NRC would ultimately rule in favor of Entergy and issue a renewed license to Vermont Yankee in March 2011.

“[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,” the court said. “And they had repeated opportunities to do so.”

The appeals panel goes on to say that 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 petitioners contend it would have been futile to raise the water certificate issue before the NRC. But the appeals court said NRC’s obligation to insure that plant operators obtain a water permit is purely “ministerial” and does not require the NRC to adjudicate compliance issues under the water standard.

“There is no reason to believe the NRC would have refused to carry out its obligation to ensure compliance with section 401’s WQC requirement,” the appeals court said.

The case is No. 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.