(AP Photo/Vermont Yankee Corporation)
(AP Photo/Vermont Yankee Corporation)
Wednesday May 9, 2012

MONTPELIER -- The state of Vermont plans to tell a federal appeals court on Wednesday that the Nuclear Regulatory Commission acted improperly last year when it granted a 20-year license extension to the Vermont Yankee nuclear plant because the plant did not have an updated water quality certificate.

"The Nuclear Regulatory Commission violated Clean Water Act (Section) 401 when it granted (an Entergy Corp. subsidiary) a new federal license to operate Vermont Yankee without first obtaining the requisite Vermont-issued ‘401 Certification' from (the company)," say legal papers filed by the state at the U.S. Court of Appeals in Washington.

Elizabeth Miller, commissioner of the Department of Public Service, said in an interview with The Associated Press that she will be presenting the state's case in oral arguments before the appeals court.

Under the federal Clean Water Act, Miller said, "No license can issue until you have a (water quality) certificate in hand."

States are designated under the federal Clean Water Act as being in charge of issuing water quality permits. They can incorporate state goals for how clean they want a given body of water to be into that permitting process, court papers said.

Miller said when someone applies for a federal license that requires a water quality certificate, any license that gets issued must incorporate the state's conditions.


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Water quality has been a touchy issue for Vermont Yankee in recent years. In early 2010, it was revealed that the plant was leaking tritium, a radioactive isotope of hydrogen, into soil and groundwater surrounding the plant. State officials have since said the tritium was reaching the adjacent Connecticut River.

The plant also has a pending application before the Vermont Agency of Natural Resources for a new permit allowing it to discharge heated water from its cooling system into the Connecticut.

Vermont is being joined in its arguments at the federal appeals court by the nuclear watchdog group New England Coalition; the state of New York has filed a friend-of-the-court brief.

On the other side, New Orleans-based Entergy Corp. and the NRC argue that the state and the NEC did not push hard enough during NRC hearings leading up the new license for the agency to force Vermont Yankee to get a new water quality permit. Entergy maintains that it got a water quality certificate in 1970 and that it remains in effect.

Entergy also maintains that the state did not file its appeal in time. The company contends the 60-day clock began running March 10, when the NRC issued its final dismissals of objections to the relicensing by the state and the NRC. NRC and the state disagree, saying the 60-day appeal period began March 21, the day NRC issued Vermont Yankee's license extension.