ML12146A159

5/25/12 - Fed Respondents Post Argument Filing

ML12146A159
Person / Time
Site:	Vermont Yankee
Issue date:	05/21/2012
From:	Arbab J, Croston S NRC/OGC, US Dept of Justice (DOJ)
To:	Langer M, Rogers J, Garland M, Henderson K US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit
Croston, Sean
References
USCA Case #11-1168, 1374788
Download: ML12146A159 (3)

Text

USCA Case #11-1168 Document #1374788 Filed: 05/21/2012 Page 1 of 3 UNITE D STATE S N UCLEAR REGULATORY C OMMI SS I ON WASHINGTON, DC 20555 - 0001 CASE WAS ARGUED ON MAY 9, 2012 May 21, 2012 Judge Karen L. Henderson Judge Judith W. Rogers Judge Merrick B. Garland c/o Mr. Mark Langer, Clerk, United States Court of Appeals for the D.C. Circuit E. Barrett Prettyman United States Courthouse 333 Constitution Avenue NW Washington, DC 20001-2866 Re: Vermont Dept. of Pub. Serv. v. NRC, No. 11-1168 (consol. with No. 11-1177)

Dear Judges Henderson,

Rogers, and Garland:

This letter responds to the Courts May 9, 2012 Order directing the parties to file a post-argument submission addressing their position on the status of the section 402 matter.At oral argument, the Court asked whether the Vermont Yankee nuclear power plant (Vermont Yankee) currently possesses a valid, effective permit issued pursuant to Vermonts EPA-approved National Pollutant Discharge Elimination System (NPDES) program under § 402 of the Clean Water Act, 33 U.S.C. § 1342. The answer to that question is yes.

As we noted in our brief (at 14 n.2), Vermont last renewed Vermont Yankees § 402 permit in 2001. When issued, that permit was set to expire on March 31, 2006. But Entergy applied for a renewed § 402 permit 180 days before that deadline. Vermont law expressly provides that when a licensee submits a sufficient application for the renewal of a license at least 180 days before its expiration date, the existing license does not expire until the relevant state agency takes final agency action on the application and the period for judicial review runs out. 3 V.S.A. § 814(b). See also 3 V.S.A. § 801(b)(3) (a license as used in § 814(b) includes any agency permit, such as a § 402 permit). In this respect, Vermont law is consistent with the federal Administrative Procedure Acts timely-renewal provision, 5 U.S.C. § 558(c). See also 40 C.F.R. § 122.6.

USCA Case #11-1168 Document #1374788 Filed: 05/21/2012 Page 2 of 3 Thus, although Vermont officials have not yet issued or denied a renewed

§ 402 permit to Vermont Yankee, Entergys timely application means that the existing § 402 permit remains valid. Indeed, in 2009, Vermonts own Attorney General told the Vermont Supreme Court that Entergyapplied for [Vermont Yankees] renewal permit on September 30, 2005 [and therefore] it is allowed to operateuntil [Vermonts Agency of Natural Resources] rules on the renewal permit application. Brief of Appellee/Cross-Appellant State of Vermont, In re Entergy Nuclear Vermont Yankee Discharge Permit 3-1199, 187 Vt. 142 (2009)

(No.08-295) at 14 n.13 (citing 3 V.S.A. § 814(b)) (brief available at 2009 WL 1114797). The Vermont Supreme Court later confirmed this fact. See In re Entergy Nuclear Vermont Yankee Discharge Permit 3-1199, 187 Vt. 142, 150 n.4 (2009).

In summary, when NRC renewed Vermont Yankees license, Entergys application for a renewed § 402 permit was pending with Vermonts Agency of Natural Resources. That is still the case. But, as we explained above, under Vermont law the terms of Vermont Yankees § 402 permit from 2001 continue to apply, given Entergys timely application for a renewed permit. See Record Appendix at 144-197 (copy of § 402 permit, as amended).1 1

While § 402 of the Clean Water Act provides that NPDES permits are for fixed terms not to exceed five years, see 33 U.S.C. § 1342(b)(1)(B), sometimes permits like Vermont Yankees remain effective for longer periods while the responsible state agencies process the applications for renewed permits. For instance, the Millstone nuclear power plants application for a renewed § 402 permit had been before the State of Connecticut for over eight years when NRC issued Millstones renewed operating license in 2005. See U.S. Nuclear Regulatory Commission, Supplemental Environmental Impact Statement for License Renewal of Millstone Power Station Units 2 and 3, App. E, Table E-2 (2005), available at:

http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/supplement22/

sr1437s22app2.pdf (relying on still-effective 1992 permit because renewal application submitted in 1997 remained pending with the relevant state agency).

USCA Case #11-1168 Document #1374788 Filed: 05/21/2012 Page 3 of 3 Therefore, Vermont Yankee continues to possess a valid, effective permit under § 402 of the Clean Water Act.

Respectfully submitted,

____/s/__________________ ____/s/_______________________

JOHN E. ARBAB SEAN D. CROSTON Attorney Attorney U.S. Department of Justice U.S. Nuclear Regulatory Appellate Section Commission Environment & Natural Resources Div. Office of the General Counsel 202-514-4046 301-415-2585 John.Arbab@usdoj.gov Sean.Croston@nrc.gov