State of VT Dept. of Pub. Serv v. Nuclear Regulatory Commission

Jun 26: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1168 & 11-1177. On Petition for Review of a Final Order of the U.S. Nuclear Regulatory Commission. The Vermont Department of Public Service (DPS) and the New England Coalition (NEC) petition for review of a decision of the Nuclear Regulatory Commission (NRC, Commission), issuing to Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively, Entergy) a renewed license to operate the Vermont Yankee Nuclear Power Station (Vermont Yankee). The petitioners contend the license renewal was unlawful because Entergy failed to furnish a state Water Quality Certification (WQC) which they assert was required under section 401(a)(1) of the Clean Water Act (CWA).

 

    The Appeals Court ruled, "We conclude the petitioners waived their WQC objection because they repeatedly failed to present it directly to the Commission and thereby failed to exhaust their administrative remedies." Despite the fact that Petitioners had numerous administrative opportunities, which the Appeals Court detailed, the petitioners contend it would have been futile to raise

the section 401 issue before the Commission, which they said, "has clearly held that the issue of whether an applicant possesses a required CWA authorization is not appropriate for consideration as a contention in NRC licensing proceedings." .

 

    The Appeals Court said, "None of the decisions they cite, however, supports their contention the Commission would have refused to decide the issue here, namely, whether an applicant for license renewal has obtained the requisite section 401 WQC before a license issues. . . 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."

 

    Access the complete opinion (click here). [#Energy/Nuclear, #CADC]

 

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