US appeals court says Vt. late with nuclear appeal

MONTPELIER, Vt. (AP) -- A U.S. appeals court has rejected an argument by the state and an anti-nuclear group that the Entergy Corp.'s Vermont Yankee nuclear power plant should not have been given a new operating license because its federal water quality permit was out of date.

In a ruling issued Tuesday, the U.S. Court of Appeals for the District of Columbia said the state had multiple opportunities to argue the Vernon plant lacked a valid permit under the Clean Water Act during the proceedings that led up to the plant's relicensing last year. It said the state and its ally, the New England Coalition, failed to do so forcefully enough.

They raised the water quality issues before a Nuclear Regulatory Commission review panel known as the Atomic Safety and Licensing Board but did not do so after the board issued a preliminary decision in favor of Entergy in 2008, the court said.

Instead, they "sat silent for two and one-half years thereafter, raising their ... objection only after the Commission issued the license renewal in March 2011," the court said.

At issue were two water quality permits that Vermont Yankee was required to get from the state under the federal Clean Water Act: A section 401 permit deals with broad impacts on water quality. A section 402 permit is for the specific discharge, in this case of water taken by Vermont Yankee from the Connecticut River, used to cool the reactor and then piped back into the river.

Lawyers for New Orleans-based Entergy argued before the NRC that Vermont Yankee had acquired the needed permits as it sought its initial license to begin operations in March 1972.

The state and NEC argued that the permits were outdated, both by changes in the science of water quality monitoring and by changes in Vermont Yankee's operations. Most notable among the latter was a 20 percent boost in the plant's power output in 2005, with more warmed water flowing from the plant into the river.

There were "changes in the science, changes in operations — all those things. Forty years is a long time," said John Beling, public advocate with the state Department of Public Service, which came out on the losing side in the appeals court's ruling.

"We disagree with their decision, and we're disappointed they declined to address the substantive water quality issues that we raised," Beling said.

He said the state also disagreed with the court on the procedural basis it cited in its decision: that the state and coalition had many chances to raise the issue when it was before the NRC but didn't do so.

"Even if no one had raised this, the NRC has an obligation to make sure this was done," he said, referring to Vermont Yankee obtaining updated permits. "Now they're punishing a party for raising it. ... We just don't think it's appropriate."

Beling said the state and NEC will consider whether to ask the court to reconsider or try to take the case to the U.S. Supreme Court.

Entergy spokesman Michael Burns said in an email the company was pleased with the ruling.

The NRC offered a statement announcing the decision in its favor shortly after it was issued. "The court has found that the state had multiple opportunities to earlier raise its argument about whether the plant lacked a valid 401 Water Quality Certification but failed to do so," NRC spokesman Neil Sheehan said in an email.

The litigation at the D.C. appeals court was separate from a lawsuit brought by Entergy against Vermont over laws requiring that the Legislature grant its approval before the nuclear plant could get a state permit for an additional 20 years of operation.

In that case, Judge J. Garvan Murtha, of the U.S. District Court in Brattleboro, ruled in January for Entergy, saying lawmakers had acted with the improper motivation of concern over nuclear safety, something that federal law makes the exclusive jurisdiction of the NRC. That case now is on appeal at the 2nd U.S. Circuit Court of Appeals in New York.