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{{#Wiki_filter:UNITED STATESNUCLEAR REGULATORY COMMISSIONWASHINGTON, 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 Court's 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 Vermont's EPA-approved National Pollutant Discharge Elimination System ("NPDE S") 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 Yankee's § 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 pr ovides 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 Act's "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 1 of 3 Thus, although Vermont officials have not yet issued or denied a renewed § 402 permit to Vermont Yankee, Entergy's timely app lication means that the existing § 402 permit remains valid. Indeed, in 2009, Vermont's own Attorney General told the Vermont Supreme Court that "Entergy-applied for [Vermont Yankee's] renewal permit on September 30, 2005 [and therefore] it is allowed to operate-until [Vermont's Agency of Natural Resources] rules on the renewal permit application." Brief of Appellee/Cross-Appellant State of Vermont, In re Entergy Nuclear Vermont Y ankee 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 Cour t 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 Yankee's license, Entergy's application for a renewed § 402 permit was pending with Vermont's Agency of Natural Resources. That is still the case. But, as we explained above, under Vermont law the terms of Vermont Yankee's § 402 permit from 2001 continue to apply, given Entergy's 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 Yankee's remain effective for longer periods while the responsible state agencies process the applications for renewed permits. For instance, the Millstone nuclear power plant's application for a renewed § 402 permit had been before the State of C onnecticut for over eight years when NRC issued Millstone's renewed operating license in 2005. | |||
See U.S. Nuclear Regulatory Commission, Supplemental Environmental Impact Statement for License Renewal of Millstone Power Station Un its 2 and 3, App. E, Tabl e E-2 (2005), available at: | |||
http://www.nrc.gov/reading-rm/doc-collec tions/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 2 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 USCA Case #11-1168 Document #1374788 Filed: 05/21/2012 Page 3 of 3}} |
Revision as of 01:52, 2 August 2018
ML12146A159 | |
Person / Time | |
---|---|
Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
Issue date: | 05/21/2012 |
From: | Arbab J E, Croston S D NRC/OGC, US Dept of Justice (DOJ) |
To: | Langer M, Rogers J W, Garland M B, Henderson K L 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
UNITED STATESNUCLEAR REGULATORY COMMISSIONWASHINGTON, 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 Court's 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 Vermont's EPA-approved National Pollutant Discharge Elimination System ("NPDE S") 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 Yankee's § 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 pr ovides 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 Act's "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 1 of 3 Thus, although Vermont officials have not yet issued or denied a renewed § 402 permit to Vermont Yankee, Entergy's timely app lication means that the existing § 402 permit remains valid. Indeed, in 2009, Vermont's own Attorney General told the Vermont Supreme Court that "Entergy-applied for [Vermont Yankee's] renewal permit on September 30, 2005 [and therefore] it is allowed to operate-until [Vermont's Agency of Natural Resources] rules on the renewal permit application." Brief of Appellee/Cross-Appellant State of Vermont, In re Entergy Nuclear Vermont Y ankee 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 Cour t 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 Yankee's license, Entergy's application for a renewed § 402 permit was pending with Vermont's Agency of Natural Resources. That is still the case. But, as we explained above, under Vermont law the terms of Vermont Yankee's § 402 permit from 2001 continue to apply, given Entergy's 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 Yankee's remain effective for longer periods while the responsible state agencies process the applications for renewed permits. For instance, the Millstone nuclear power plant's application for a renewed § 402 permit had been before the State of C onnecticut for over eight years when NRC issued Millstone's renewed operating license in 2005.
See U.S. Nuclear Regulatory Commission, Supplemental Environmental Impact Statement for License Renewal of Millstone Power Station Un its 2 and 3, App. E, Tabl e E-2 (2005), available at:
http://www.nrc.gov/reading-rm/doc-collec tions/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 2 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 USCA Case #11-1168 Document #1374788 Filed: 05/21/2012 Page 3 of 3