D.C. Circuit: Vt. officials too late in appeal over power plant license

Jessica M. Karmasek Jun. 27, 2012, 12:25pm


WASHINGTON (Legal Newsline) - A federal appeals court says Vermont state officials were too late appealing a final order by the federal Nuclear Regulatory Commission issuing a renewed license to the Vermont Yankee nuclear power plant.

The U.S. Court of Appeals for the District of Columbia Circuit denied the Vermont Department of Public Service's petition for review in a ruling filed Tuesday.

The DPS and the New England Coalition, or NEC, asked the court to review the NRC's decision issuing Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations Inc.'s renewed license to operate the power station.

The DPS and NEC argued the license renewal was unlawful because Entergy failed to furnish a state Water Quality Certification, or WQC, which they asserted is required under section 401 of the federal Clean Water Act.

In January 2005, Entergy filed an application with the NRC for a 20-year renewal of Vermont Yankee's operating license, which was set to expire March 21 of this year.

In March 2006, the NRC published a notice announcing it had accepted the Vermont Yankee license renewal application.

The DPS and NEC filed, respectively, three and six contentions challenging Entergy's application, only one of which the D.C. Circuit found relevant.

The NEC's so-called "Contention 1" asserted that Entergy's environmental report failed to "sufficiently assess" the environmental impacts of the license renewal, specifically the impacts of increased thermal discharges into the Connecticut River over the 20-year license renewal period.

Entergy answered that once it provided a valid Vermont National Pollutant Discharge Elimination System, or NPDES, permit, "no further analysis" was required.

In its reply, the NEC asserted, for the first time, that Entergy was also obligated to obtain a state water certification under section 401 and that Entergy had not done so.

On March 21, 2011, the NRC issued a renewed license to operate Vermont Yankee for a 20-year term.

The NEC and DPS petitioned for review and Entergy intervened.

New York Attorney General Eric Schneiderman filed an amicus brief in support of the petitioners.

The D.C. Circuit, in its 20-page opinion, said the petitioners waived their WQC objection because they "repeatedly" failed to present it directly to the NRC and thereby failed to "exhaust" their administrative remedies.

"The petitioners here were required under agency regulations to afford the full Commission an opportunity to pass on the section 401 issue before seeking judicial review. And they had repeated opportunities to do so," Circuit Judge Karen LeCraft Henderson wrote.

"Yet, notwithstanding all of these opportunities to fulfill the exhaustion requirement -- and the Board's admonition that "(f)iling a petition for review is mandatory for a party to exhaust its administrative remedies before seeking judicial review -- the petitioners sat silent for two and one-half years thereafter, raising their section 401 objection only after the Commission issued the license renewal in March 2011."

In doing so, the D.C. Circuit said the DPS and NEC "undermined" the functions exhaustion serves: "Giving agencies the opportunity to correct their own errors, affording parties and courts the benefits of agencies' expertise, and compiling a record adequate for judicial review."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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