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BRATTLEBORO -- After presenting the state's case in the Washington, D.C., District Court, Elizabeth Miller, commissioner of Vermont's Department of Public Service, said the judges seemed skeptical of a claim made by Entergy and the Nuclear Regulatory Commission regarding the Clean Water Act certificate for Vermont Yankee nuclear power plant in Vernon.
"The NRC and Entergy have reasoned that a discharge permit can serve as a functional equivalent of a water quality permit," said Miller, during a phone interview from the airport in D.C. Miller also spoke for the New England Coalition during the oral briefs. "In my view, the court seemed puzzled about how a five-year discharge permit could substitute for a 401 certificate."
The state and the coalition contend that under the Clean Water Act, a facility that withdraws or discharges water into a river or other waterbody must have two water certificates.
Section 401 of the act requires that an applicant for a federal license or permit provide a certification that any discharges from the facility will comply with the act, including water quality standard requirements. Under the act, contend the state and NEC, a licensee must also obtain a 402 certificate -- a National Pollution Discharge Elimination System permit -- which defines conditions a power plant must comply with to continue to affect a public waterway.
The NRC responded in its own filings to the court that Yankee has its 402
NEC and the Department of Public Service have also claimed that the 402 certificate was issued in 1970 as part of the original 40-year license, which was superseded by the new license issued in 2011, therefore, that certificate is no longer valid.
"The state's position is clear," said Miller. "The 401 certificate is the express statutory requirement for the NRC and requires the NRC not issue a renewed license until a 401 is obtained. It requires the federal agency incorporate any conditions of the 401 directly into the license, which is not true of the discharge permit."
Miller said the court's panel was active, engaged and had many questions for her, the NRC and Entergy, which owns and operates Yankee.
The court ordered the parties to provide their briefs on the procedural issues related to Yankee's discharge permit.
Miller said the court specifically asked the NRC what would happen to Yankee's newly issued 20-year license if the discharge permit was allowed to expire, was amended or was violated.
"The NRC's attorney said it might have to revisit the license itself," said Miller.
In response, the court asked for further clarification on that point, she said. Miller said the brief that the NRC submits to clarify its position in regards to the water discharge permit may contain a reconsideration of the NRC attorney's statement in court on Wednesday.
In March 2011, after nearly six years of review the NRC issued a new 20-year operating license to Entergy, which owns and operates Yankee. In October 2011, DPS and NEC filed suit in the U.S. Court of Appeals in Washington, D.C., claiming Entergy did not ask the state for a new certificate to include in its application and the NRC violated federal law by issuing the new license without the certificate.
Entergy and the NRC have both accused the department and NEC of not exhausting their administrative remedies during the relicensing review.
But Miller reiterated the state's and NEC's position that it wasn't their obligation to make further arguments about the lack of inclusion of the Clean Water Act certificate in the license application.
"The Clean Water Act puts the honus on Entergy to include it in the application," she said. "They didn't do so."
In addition, DPS and NEC have argued the Nuclear Regulatory Commission erred in basing its licensing decision on an incomplete application. They are asking the court to force the NRC to reopen its review of the application.
Christopher Kilian, the vice president and director of the Conservation Law Foundation and director of Clean Water and Healthy Forests, is representing the New England Coalition in the case.
He said the court "asked all the right questions."
"I won't comment on what the judges might or might not do," said Kilian. "But the law is clear -- these are two separate obligations. We have strongly urged the court to reject this rationale the NRC settled on long after they made the decision to issue the license."
Kilian said he hopes the court doesn't undermine the Clean Water Act and upholds the law that requires both a discharge permit and a clean water certificate for continued operation.
Neil Sheehan, spokesman for the NRC, said he had very little to say about the case at this time.
"The NRC sought to be responsive to the judges' questions at today's oral argument session before the U.S. Court of Appeals for the District of Columbia Circuit," said Sheehan. "We will seek to do the same in subsequent filings."
In previous filings, Entergy and the NRC have claimed the certificate issued in 1970 can serve to satisfy the requirements of the Clean Water Act. They are also saying the current discharge permit, which expired more than five years ago but is still in effect while the state reviews whether to issue a new one, is an adequate substitute for the clean water certificate.
Both DPS and NEC have accused the Nuclear Regulatory Commission and Entergy of attempting to present a post hoc rationalization -- an argument formulated after a record has been closed -- in its defense.
Because Entergy's argument depends on documents that were not part of the license review, its strategy to introduce the 1970 certificate "smacks of an impermissible endrun around the closed-record review," wrote the department and NEC.
The NRC has accused the state of "sitting on its hands" and not "exhausting its administrative remedies" because it did not ask the agency to request the certificate from Entergy during the license application review and therefore the petition should be denied.
However, the petitioners contend that in at least three occasions they explicitly notified the NRC of the lack of the certificate and in any case, under the Clean Water Act it's the NRC's responsibility to confirm the certificates are in the license application.
In addition, the NRC also never notified the state that it was relying on the old permit or the NPDES permit, contend the petitioners, a requirement that is mandated by federal law.
Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160.
