Federal Appellate Court Finds for the NRC, Entergy in Vermont Yankee Licensing Case

The State of Vermont "repeatedly failed" to present to the Nuclear Regulatory Commission (NRC) objections that Entergy Corp., owner of the controversial Vermont Yankee Nuclear Power Station, lacked a necessary state water permit before the commission granted the reactor a 20-year operating license extension, a federal court ruled on Tuesday as it threw out the state’s legal challenge against the NRC.

Vermont’s Department of Public Service, backed by anti-nuclear group the New England Coalition, had petitioned the U.S. Court of Appeals for the D.C. Circuit to review the NRC’s final decision to issue Vermont Yankee a license renewal, contending that it was unlawful because Entergy failed to furnish a state Water Quality Certification (WQC), which was required under section 401 of the Clean Water Act.

But the state had several opportunities to voice this particular objection, including submitting it as a comment to the NRC’s December 2006 Draft Supplemental Environmental Impact Statement (Draft SEIS) or as a petition for NRC review following the Atomic Safety and Licensing Board’s 2008 partial initial decision that resolved all but one of remaining admitted contentions (and which did not mention the WQC).

"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," wrote Circuit Judge Karen LeCraft Henderson in an opinion for the court.

"For the foregoing reasons, we conclude that the petitioners failed to exhaust their administrative remedies before the Commission and thereby waived the right to raise their section 401 objection on judicial review. Accordingly, we deny their petitions for review," the court ruled.

The state has been fighting to shut down the Vernon reactor, which was built in 1972. In 2006, the state’s General Assembly passed a law that outlined the requirements for continued operation of a nuclear power plant in the state. Later, in 2010, the state’s legislature voted to block the plant from operating past March 2012, when its state permit expired.

In March 2011, the NRC, meanwhile, renewed the plant’s operating license for 20 more years, through March 21, 2032. In a key victory for Entergy, a U.S. district judge in January ruled that state laws enacted to force the closure of the 40-year-old plant were invalid because they were preempted by the federal Atomic Energy Act. That case is now on appeal at the Second U.S. Circuit Court of Appeals in New York.

Sources: POWERnews, U.S. Court of Appeals, D.C. Circuit, Entergy
—Sonal Patel, Senior Writer, (@POWERmagazine)

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