The River, the Shad and the Water Permits

About the River

Just now, I published a blog post called The River and the Rhetoric--Who Speaks for the River.  This post was mostly about the Sage Alliance plans for a flotilla-based protest of Vermont Yankee, and about the Connecticut River Watershed Council, an anti-Vermont Yankee advocacy group.

I thought I needed another post about the river itself.  Let's start with the idea that the shad are disappearing.  Well, they are not.  It's a record year for shad on the Connecticut River, with one million returning to spawn.  I am sure you will enjoy the article in the Hartford Courant.

In contrast, during our debate at University of Vermont in February, 2011, Arnie Gundersen claimed that there were 16 shad in the Connecticut River.  I just couldn't resist including this clip of the debate, since there are actually a million shad in the river this year.



It's also worth noting that the decline or rise of the shad may be based on the status of the pumped storage plant downstream from us, in Massachusetts.  Massachusetts environmentalist Karl Meyer writes about the devastating effect of the Northfield Pumped Storage project on the fish in the river.  He wrote this in response to an earlier article by David Deen. David Deen is one of the main speakers at the Sage Alliance anti-Vermont Yankee flotilla.  Meyer's article is It's about the river AND the fish

Water Permits

It's also worth adding a reminder about the Vermont Yankee water quality permits, since the flotilla is focusing on this issue. The Vermont  Department of Public Service lost a recent lawsuit about water permits. The Department had sued the NRC, claiming that Vermont Yankee should not have been granted a license renewal because the plant water quality permit was out of date. They lost.  I blogged about the water permit lawsuit here.

Vermont Loses Lawsuit Against NRC about Water Quality Permit

The Intervenors (and Vermont) Sue the NRC and Lose

The New England Coalition (NEC) is an intervenor that has fought Vermont Yankee since before the plant opened.  About a year ago, NEC brought a lawsuit against the NRC.  NEC claimed  that the NRC should not have granted Vermont Yankee a license extension because the plant did not have an up-to-date water quality permit issued by the state. They claimed that Vermont Yankee's NRC license was invalid, and had to be rescinded.

Late last month, NEC lost the lawsuit.  The U.S Court of Appeals in Washington D.C. ruled against NEC and for the NRC.  You can read the ruling here.

Liz Miller
DPS Commissioner

Oops!  Did I say NEC lost the suit?  What I meant was that the Vermont Department of Public Service  (DPS) and NEC lost the suit, because Vermont joined the suit.  DPS joined the suit big-time.  Liz Miller, the DPS Commissioner, argued the case before the Court.

The State's Case and My Opinion

I found the state's case quite odd. I wrote an blog post last year -- A State of Confusion: The Suit about the Water Quality Permit.  As I said at the time: the state is the one that issues water quality permits.  If the plant's water quality permit was not up to the state's requirements, the state should have insisted that the plant do something about this.  Instead, the state sued the NRC, saying the NRC should not have issued the license extension.

In other words, Vermont claimed that Vermont hadn't cared about the water quality permit status, but the NRC should have cared.  My guess was this argument wouldn't convince a court.

It didn't.

The Court's Opinion

The court ruling was related to what I had expected, but different.  The appeals court ruled that the state had an obligation to bring up this contention before the NRC during the hearing, not wait until the license was granted and come in with an "oh, by the way" lawsuit.  To quote the ruling:

“.. 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...[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 Opponents' Opinions

Many of the opponents cried bitter tears that the NRC had escaped on a procedural technicality.

According to VPR, a NEC spokesman, Chris Killen, said: "The New England Coalition, and all Vermonters, have now been deprived of the right that was guaranteed to them by Congress, to have a say in how this plant affects clean water." According to the same article, Shumlin's spokesman  John Being said "We're disappointed that the court declined to address our substantive water quality argument and instead ruled, based upon kind of a technical issue, a procedural issue,"

Pat Parentau
Vermont Law School

However, in the same VPR article, Pat Parentau of Vermont Law School said the court ruled on a fundamental point of administrative law.

"Where there's a clear process to raise an issue, before the commission - that‘s the key - before the commission itself - that you can't miss that opportunity and expect the circuit court to hear your argument," he said.

Pat Parentau would like to see Vermont Yankee shut down, but he knows this ruling was not procedural nit-picking.

The Next Step

Of course, Vermont claims it is considering an appeal to the Supreme Court.  Vermont always wants to take it all the way to the Supreme Court. (Take It To the Limit.)  However, most people admit that this ruling is the final ruling. The Supreme Court won't hear the case. The Supreme Court rarely reviews rulings that are made on the basis of administrative law.  So the next step is---this ruling will stand.

It's funny how often Vermont gets tripped up by the Constitution or by customary administrative law requirements, or other stuff like that. It's almost as if our administration doesn't think things through. (sarcasm alert)

Oh By The Way

Let's talk "substantive issues" here for a moment.

First issue.  Vermont Water Quality Reviews are On-Going: The Agency of Natural Resources (ANR)  has been working on a water quality permit with Vermont Yankee since 2006.  To quote a Brattleboro Reformer article on the lawsuit: ANR is still in the process of determining whether Yankee should receive a permit to discharge non-radioactive cooling water -- at up to 100 degrees -- into the Connecticut River. That process has been going on since 2006 and is not expected to be resolved anytime too soon.  In other words, what the heck was this Vermont lawsuit about?

Second issue. Why Is the Department of Public Service doing this?  The Department of Public Service is supposed to be protecting the rate-payer in hearings before the Public Service Board, not running down to Washington to join intervenor lawsuits.  However, as I said in my blog post: Gaz Metro Deal Goes Forward. Ratepayers Stiffed. the DPS is not defending the ratepayer.  The DPS is just another one of the ducks that Governor Shumlin gets in order.

NRC and Vermont Yankee Win In Federal Court

The Vermont Department of Public Service sued the NRC, claiming that the NRC should not have issued a license extension to Vermont Yankee because the plant's water quality permits were not in order.  Today, a federal court in Washington ruled for the NRC and for Vermont Yankee...the license extension was upheld.

I am still at the ANS convention in Chicago, and it's hard to blog for various reasons...like..not enough hours in the day.  However, this short article from Power Engineering contains a link to the ruling, so it is a good place to start reading about Vermont Yankee's victory.

A State of Confusion: The Suit About the Water Quality Permit

In mid-November, the State of Vermont sued the NRC, claiming that the license extension granted to Vermont Yankee was not valid because the NRC did not have proof that Vermont Yankee was in compliance with the Clean Water Act.

Actually, the anti-nuclear group, New England Coalition (NEC), started this suit, and the state joined in. Conservation Law Foundation (CLF) is acting as the lawyer for NEC. The Vermont Department of Public Service is pursuing this suit, along with NEC/CLF.

Meanwhile, several other groups have joined the lawsuit: New York State, Riverkeeper, and Scenic Hudson have asked to be friends of the court. The Brattleboro Reformer has an excellent article on the lawsuit and the various parties to it.

If you can figure this one out, please tell me. If Vermont Yankee did not have an appropriate water quality permit, why didn't the state do something directly about it? As the Reformer article notes: Under the doctrine of "cooperative federalism," states are allowed by choice to enforce standards such as those set out in the Clean Water Act. In fact, states are allowed to impose even more stringent standards than required by federal law.

In other words, the state had the power to enforce permit requirements. A state can even enforce special permit requirements. For example, cars sold in California need to meet stronger pollution control standards than the national standards set by EPA.

For some reason, though, Vermont is suing the NRC, claiming it was the NRC's obligation to make sure that Vermont Yankee had an up-to-date permit. Apparently, the state didn't care about the permit, except that the state wanted to be sure that the NRC cared.

I don't understand it. Or maybe I do.

Scuttlebutt

Okay. I am not a lawyer, and I don't understand this one. However, the scuttlebutt I have heard is that the state extends water quality permits routinely, unless something is changed, because it costs everybody an arm and a leg to actually reapply and re-assess such a permit. Apparently, the state made the decision (sometime in the past) that nothing much had changed at Vermont Yankee, and the water quality permit could be extended. Then, just a few months ago, with the change of governor, the state suddenly had a change of heart. The state was shocked, shocked to discover Vermont Yankee was operating on an extended water quality permit! As a matter of fact, they sued the NRC about it.

As I said, I am not a lawyer, and I am in state of confusion about this one. I thought I might try calling lawyers about it, but decided that even the lawyer's answers would be beyond me. If Vermont Yankee didn't have an appropriate permit, why did the state let them operate? If Vermont Yankee did have an appropriate permit, why is the state suing the NRC?

It doesn't make any sense, but at this point, "not making sense" is what I expect from the current state administration in its dealings with Vermont Yankee.

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The Oxbow: The Connecticut River near Northampton, MA. Cole Thomas, 1836

The Casablanca graphic is free-floating around the web, shocking as that is.