Council challenges VY ruling


Thursday, June 12
BRATTLEBORO -- Even though a judge for the Vermont Environmental Court has issued a decision related to the discharge of heated water into the Connecticut River from Vermont Yankee nuclear power plant, the legal wrangling over the decision and what the judge meant is far from over.

Entergy, which owns and operates the power plant, applied to the Vermont Agency of Natural Resources to amend its discharge permit to allow for a temperature increase of 1 degree over what the permit already allows during the summer months.

While Judge Merideth Wright did agree to allow the increase, she did so with conditions.

Entergy had applied to the ANR to allow it to increase its thermal discharge limits by 1 degree from May 16 through Oct. 14. ANR denied the increase for the period of May 16 to June 15, but allowed it for the remainder.

Following ANR's decision, the Connecticut River Watershed Council appealed the approval to the environmental court, which took testimony from the opposing sides last summer. On May 22, Wright issued her decision, allowing the 1 degree increase for the period of June 16 though July 7 with the caveat that the temperature of the river downstream from the plant doesn't exceed 76.7 degrees.

The increase was granted for the period of July 8 through Oct. 14.

A spokesman for the Connecticut River Watershed Council told the Reformer Wednesday that it planned to appeal Wright's decision to the Vermont Supreme Court. Attorneys for the council are in the process of writing their appeal, said David Dean, river steward.

"We're not in a position to talk publicly about what our issues will be," he said.

The watershed council isn't the only organization contesting Wright's ruling.

Attorneys for Entergy are claiming Wright made a "stenographic error" when she set the 76.7 degree limit for June 16 through July 7. They are asking Wright to amend her final order to raise that limit to 81.5 degrees, said attorney Elise Zoli.

According to Zoli, in making her decision, Wright accidentally used the wrong data from a table submitted by Entergy.

"It looks as though she took the number from the wrong row," said Zoli. "She wanted to take the highest temperature in which fish were passing through the ladder in the last 11 years."

That temperature was actually 81.5 degrees, not 76.7, she said.

Claiming the temperature limit was an error is "silly," said Deen.

"Our response in terms of the stenographic error is no, no, no. None of the fish in the five-year period they showed data for crossed when the temperature got above 75 degrees."

Attorneys from the Environmental and Natural Resources Law Clinic of the Vermont Law School wrote in a letter to Wright that granting Entergy's request to increase the temperature limit "would not fix a clerical mistake but would work a substantive change in the relative rights of the parties."

"At 81.5 degrees, the temperature that Entergy seeks to substitute in the court's order, only two fish ever passed in the entire 11-year study history," wrote attorney David K. Mears. "In all other years, the maximum temperature was far less."

ANR is also asking Wright to clarify her decision.

"This position as set forth by Entergy is not unwarranted given the language of the Court's decision and order," wrote Catherine Gjessing, the director of policy, planning and research for the Agency of Natural Resources, in a letter to Wright. "The Court may simply advise the parties as to whether the court made a stenographic error and if so, the arguments of the parties are resolved and no further briefing or motion practice is necessary on this issue."

To make matters more confusing, the amendment approved by Wright applies to the discharge permit covering the period of 2001 to 2006. Entergy is in the process of applying to the state for a permit to cover the next five-year period.

"The old permit does not expire until the new one is processed and issued," said Gjessing, in a telephone interview with the Reformer. It's not unusual for the permitting process to "take quite some time," she said, and a federal court decision has delayed the process even longer.

ANR's review of the application has been held up due to a federal court ruling that called into question an Environmental Protection Agency rule regulating the intake of water into power plants for the purposes of cooling.

The EPA mandates that a discharge permit approval is made in light of how best to protect the indigenous population of fish and wildlife in the river. But under the EPA rule called into question by the federal court decision, ANR was also required to take into consideration whether the best available technology to minimize impacts on river wildlife is being used.

"Section 316(b) of the Clean Water Act requires that the location, design, construction and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact," according to a review of the court's decision made by the law firm Day Pitney Llp.

The rule in question set national performance standards for reducing harm to river life caused by the intake of water into the cooling systems of 500 power plants that withdraw more than 50 million gallons of water per day from waterbodies in the United States, but did not consider "closed-cycle cooling" a best available technology.

In Vermont Yankee's case, closed-cycle cooling involves the use of the plant's 22 cooling fan cells to evaporate water used in the plant's cooling system. A small amount of water is returned to the river with a reduced temperature due to the evaporation.

In open-cycle cooling, the cooling water is returned to the river at temperatures between 80 and 100 degrees. Yankee can also use a hybrid of the two technologies to cool water, but using the cooling fans requires 25 megawatts of power that would otherwise be sold on the energy market.

As a result of the court decision, the states don't have much guidance on how to conduct their reviews, leaving Vermont and others at a standstill when it comes to these discharge permits, said Gjessing.

"We do have some real hurdles in reviewing the renewal application," she said.

When the EPA responds to the federal court decision, ANR will be able to proceed with the renewal application. At that time, ANR will take under consideration all data related to the effects of heated water on river wildlife, including any data accumulated as a result of the temperature increase approved by Wright.

Bob Audette can be reached at or 802-254-2311, ext. 273.


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