Group: Leak violates public trust doctrine
BRATTLEBORO -- The state may have a pretty big hammer to bring down on Entergy if it doesn't find and fix the source of a leak that has contaminated groundwater at its Vermont Yankee nuclear power plant in Vernon.
That hammer is called the public trust, stated the Vermont Natural Resources Council, which asked the state's Public Service Board on Tuesday to allow it to become an official participant in the PSB's hearings over whether Vermont Yankee nuclear power plant should be issued a certificate of public good.
The traditional purpose of the public trust doctrine is to preserve for the public access to navigable waters for navigation, commerce and fishing free from the obstruction or interference of private parties, according to document issued by the Legislative Study Committee of Groundwater Regulation.
In the 1970s, said Pat Parenteau, senior counsel to the Environmental and Natural Resources Law Clinic, a professor of law at the Vermont Law School and a former commissioner of the Department of Environmental Conservation, rules were promulgated to protect groundwater from contamination.
Under those rules, a litigant would have to show it actually owns land above the contaminated aquifer, he said.
But in 2008, a public trust provision concerning groundwater was enacted, expanding who could participate in any legal action regarding aquifer contamination, which could mean VNRC has standing to become an intervenor in the CPG process if the docket is reopened.
"The state has a legal obligation to manage all groundwater in the best interest of all Vermonters," said Jon Groveman, VNRC's general counsel and the co-director of the its water program. "If the PSB reopens the docket we want to be at the table raising our concerns and reminding the participants and the board about the public trust provision."
Entergy, which owns and operates Yankee, has applied to the Nuclear Regulatory Commission to extend the operating license of the power plant for another 20 years, from 2012 to 2032. In addition to NRC approval, Entergy must also receive a certificate of public good from the Public Service Board and the OK from the Vermont Legislature.
Early last month, Entergy notified the state that water containing tritium, a radioactive material produced by a nuclear power plant, had been discovered in a monitoring well in between the plant and the Connecticut River.
Since then, tritium levels exceeding 2 million picocuries per liter have been discovered in other monitoring wells and in new wells drilled to determine the extent of the plume and to identify the source of the leak.
According to the public trust doctrine, said Groveman, no one owns the groundwater.
"It belongs to all Vermonters," he said.
That makes the water under Vermont Yankee a public asset.
"Any contamination that has occurred is a potential violation of the public trust doctrine," said Groveman. "And the state needs to deal with it, regardless if the contamination is onsite or offsite."
Calling for a shutdown of the plant until the source of the leak has been found and fixed is one of the state's options, he said.
"They do have that power," said Groveman. "Certainly the state needs to look at that."
"What they do about the leak belongs to the NRC," said Parenteau. "But there's precedent out there for an argument that even though the state can't regulate the operation of the plant, it could bring action because you have contaminated and destroyed a natural resource of the state."
"The states clearly have an interest in any impacts from plant operations on the environment, particularly off-site," said Neil Sheehan, spokesman for the NRC. "And states have taken enforcement action for impacts in violation of their regulations in this area."
To be recognized as an intervenor, said Parenteau, VNRC will have to show how it has an interest in the groundwater that is affected by Yankee.
"That's the most significant hurdle they have to face," he said.
If VNRC is able to get over that hurdle, said Parenteau, "The statute ought to give them a good argument that what Entergy has done here has violated the public trust doctrine and has probably also violated the groundwater protection statute."
VNRC has to prove the plant is in proximity to the river, that the pollutant can be traced to the source and that the groundwater discharges into the river.
All three of those factors have already been proven, said Parenteau.
If tritiated water makes it into the Connecticut River, said Parenteau, the state will have to also consider whether Vermont Yankee has violated its National Pollution Discharge Elimination System permit, which the federal government has delegated enforcement of to the state.
VNRC is an independent, nonprofit research, education and advocacy organization founded in 1963 to protect Vermont's environment, economy, and quality of life.
Nearly 6,000 households, businesses, and organizations are members of VNRC.
Bob Audette can be reached at email@example.com, or at 802-254-2311, ext. 273.
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