VY license revocation case moves forward in D.C.
BRATTLEBORO -- A case being heard by the U.S. Court of Appeals in Washington, D.C., in regards to a license extension issued by the Nuclear Regulatory Commission to Vermont Yankee nuclear power plant in Vernon, is all about the right of a state to exercise the authority granted to it by both the U.S. Constitution and Congress, said Christopher Kilian of the Conservation Law Foundation, which is representing the New England Coalition pro bono.
"It's critically important that the rights of a state under the CWA are fully respected and protected by the courts when a big federal bureaucracy is making a decision that can affect the waters of a state and its citizens," he said. "We are still very strongly of the opinion that the NRC issued this license in violation of the federal Clean Water Act and Vermont has a very clear authority and obligation to issue a water quality certificate or deny one as it deems appropriate before the NRC acts. We look forward to briefing that to the court."
On Aug. 31, a motions panel for the appeals court denied a request by the Vermont Department of Public Service and NEC to force the Nuclear Regulatory Commission to rescind the extended operating license it issued in March for Yankee.
Though DPS was disappointed by how quickly the decision was rendered, said Sarah Hoffman, deputy commissioner, they are preparing for the next phase of the case.
"But the judge did say let's move on to the merits," she said. "In this next phase, we will look at the actual facts and circumstances and apply them to the law."
The hearing on the merits has not yet been scheduled.
In 2006 Entergy applied to the NRC for a new license to operate its Vermont Yankee facility for a 20-year period beyond March 21, 2012, the expiration date of its then-existing operating license.
In late June, DPS and the New England Coalition, which opposes Yankee's continued operation, asked the D.C. court to reverse the NRC's decision to issue the license based on its failure to determine whether the plant had a valid Clean Water Act certificate.
Kilian said he was also disappointed in the court's decision, but he was pleased the panel also rejected NRC's and Entergy's request for a summary affirmation of the license renewal.
"What this means is that all of the issues will be heard on the merits by a three-judge panel," he said.
According to the Clean Water Act, prior to the issuance of an extended license, a plant's operator must submit a request for a Clean Water Act permit.
"The record does not reflect any inquiry by NRC to either (Entergy) or the State of Vermont to verify (Entergy's) assertion or to determine if it applied to the required (water quality certification)," which Yankee does not have, stated court filings submitted by DPS and NEC on June 24.
Nonetheless, the NRC issued a new operating license for Yankee.
"From our perspective we have issued a valid license extension," said Neil Sheehan, spokesman for the NRC, in June. "The issue is between the state and the company."
The certificate from the state Entergy needs to make its application complete is a document stating Yankee complies with all the requirements of the Clean Water Act.
"It's the obligation of the operator to get the certificate and the NRC should have noted whether it was done of not," said Hoffman.
Bob Audette can be reached at email@example.com, or at 802-254-2311, ext. 160.
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