In re Entergy Nuclear Vt. Yankee Discharge Permit

• Decision Date: 18 December 2009
• Docket Number: No. 08-295.,08-295.
• Citation: 2009 VT 124,989 A.2d 563
• Court: Vermont Supreme Court
• Parties: In re ENTERGY NUCLEAR VERMONT YANKEE DISCHARGE PERMIT 3-1199.

989 A.2d 563

2009 VT 124

In re ENTERGY NUCLEAR VERMONT YANKEE DISCHARGE PERMIT 3-1199.

No. 08-295.

Supreme Court of Vermont.

December 18, 2009.

David K. Mears and Patrick A. Parenteau, Environmental and Natural Resources

Law Clinic, South Royalton, for Appellants.

William H. Sorrell, Attorney General, Bridget C. Asay and Kevin O. Leske, Assistant Attorneys General, Montpelier, for Appellee/Cross-Appellant State of Vermont.

Matthew S. Borick of Downs Rachlin Martin PLLC, Burlington, and Elise N. Zoli and U. Gwyn Williams of Goodwin Procter LLP, Boston, Massachusetts, for Appellee/Cross-Appellant Entergy Nuclear Vermont Yankee, LLC.

Present: REIBER, C.J., JOHNSON, SKOGLUND and BURGESS, JJ., and WESLEY, Supr. J., Specially Assigned.

¶ 1. JOHNSON, J.

The Connecticut River Watershed Council, Trout Unlimited, and Citizens Awareness Network (collectively CRWC) appeal the Environmental Court's decision granting in part and denying in part Entergy Nuclear Vermont Yankee's (Entergy) request for a permit amendment under the National Pollutant Discharge Elimination System (NPDES) of the Clean Water Act. Entergy and the Vermont Agency of Natural Resources (ANR) cross-appeal the decision of the Environmental Court to impose monitoring and additional temperature conditions on the amended permit. We affirm in part and reverse in part.¹

¶ 2. Entergy operates the Vermont Yankee Nuclear Power Station, a boiling water nuclear reactor located on the western shore of the Connecticut River in Vernon, Vermont. As the facility generates electricity, steam that has passed through the turbines must then be condensed, requiring removal of heat. To remove this heat and cool the station, the facility utilizes a cooling water system in which water drawn from the Connecticut River flows to the plant and removes heat as it travels through a condenser. The facility can discharge this heated water in one of two ways: (1) through closed cycle cooling, in which the heated cooling water is circulated in cooling towers and mechanically cooled or; (2) through a "once through" open cycle cooling, in which the heated cooling water is discharged into the river where it mixes with the river water and dissipates.

¶ 3. Under the federal Clean Water Act (CWA), thermal effluent—such as the cooling water discharged during open cycle cooling—is a pollutant, and facilities wishing to discharge thermal effluent into a water source must apply for a NPDES permit. 33 U.S.C. § 1342; see also 40 C.F.R. § 122.2 (defining pollutant as including "heat"). Section 316 of the CWA sets forth specific criteria used to evaluate the discharge of heat (as opposed to other pollutants) in the context of a NPDES permit. 33 U.S.C. § 1326. Under this section, a permit applicant may apply for a variance from otherwise applicable thermal discharge limitations (including state water quality standards) if the applicant can demonstrate that it will nonetheless "assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife." Id. § 1326(a).² It is this type of thermal variance request that is the subject of the permit amendment before us.

¶ 4. The statutory scheme of the CWA embraces a cooperative federalism approach to environmental regulation and carves out a joint role for federal and state oversight and enforcement. See id. § 1251(b) (providing that "[i]t is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use ... of land and water resources, and to consult with the Administrator in the exercise of his authority"); 40 C.F.R. § 131.2 (requiring states to put in place water quality standards that designate uses, set criteria necessary to protect those uses, protect water quality through anti-degradation provisions, and "serve the purposes of the [CWA]"). Section 402 of the CWA provides for issuance of permits by either the federal Environmental Protection Agency (EPA) or a state-administered permit program approved by the EPA. 33 U.S.C. § 1342(b). Once a permit program has been approved, states are authorized to issue permits for fixed terms not to exceed five years and are charged with ensuring that issued permits comply with federal and state water quality standards. Id. § 1342(b)(1).

¶ 5. In Vermont, the Legislature has charged ANR with the EPA-delegated authority to enforce and implement the CWA and its NPDES permitting program through implementation of 10 V.S.A. § 1259(a), which directs that "[n]o person shall discharge any waste, substance or material into waters of the state ... without first obtaining a permit for that discharge from the secretary [of ANR]." ANR is directed to issue a permit upon a determination that "the proposed discharge will not reduce the quality of the receiving waters below the classification established for them and will not violate any applicable provisions of state or federal laws or regulations." 10 V.S.A. § 1263(c). Thus, in Vermont, ANR is the body that addresses either an initial permit application or permit amendment application requesting a thermal variance, like the one at issue here.

¶ 6. The Vermont Yankee nuclear power facility has a long history of such thermal variance requests. In 1978, Entergy's predecessor-in-interest's³ permit application was approved by ANR, allowing Entergy to discharge heated water into the Connecticut River during the period from October 15 through May 15 (the winter period) so that temperatures at monitoring Station Three (located 1.4 miles below the facility) did not exceed 65° F. During the period from May 16 through October 14 (the summer period) the facility was required to operate in closed cycle mode.

¶ 7. The permit was renewed and amended in 1986, after a successful demonstration project under § 316(a) of the CWA in which Entergy showed that an increase in river temperature during the summer months would not cause any appreciable harm to the plants and wildlife in the river. Entergy's renewed NPDES permit allowed a new 1° F temperature increase for the summer period. In 1990, Entergy conducted another § 316(a) demonstration project, proposing additional thermal effluent discharge into the Connecticut River during the summer period. The 1991 NPDES permit put in place a new "compliance equation" methodology to calculate the increase in river temperature allowed under the permit and authorized an increase in river temperature of between 2° F and 5° F during the summer period depending on the ambient temperature of the river during this period. In addition, Entergy's permit imposed various monitoring requirements including hourly monitoring of the temperature in the Vernon Dam fishway (a fish ladder allowing fish to pass through the dam) located 0.5 miles upstream from the facility. Entergy was also required to monitor hourly temperatures at Station Seven (located 3.5 miles upstream of the facility and unaffected by the thermal plume) and Station Three (located 1.4 miles downstream of the facility). Entergy's permit was renewed in 1996 and, most recently, in 2001.

¶ 8. In 2003, Entergy sought to amend its permit once again to allow its thermal discharge to increase the temperature of the Connecticut River during the summer period.⁴ Entergy requested that its thermal discharge into the river be allowed to increase the temperature of the river calculated at Station Three by an additional 1° F during the summer period when the ambient river temperatures are between 55° F and 78° F.⁵ In 2004, in support of this amendment to its permit, Entergy submitted another § 316(a) demonstration project. ANR reviewed the proposed amendment, consulted with the Environmental Advisory Committee and other experts, and issued a Draft Amended Permit. After public comment and a public hearing, ANR granted in part and denied in part the amended permit. With regard to the early summer period of May 16 through June 15, ANR denied the temperature increase, finding that Entergy failed to demonstrate the increase would assure the protection and propagation of Atlantic salmon during this time.⁶ ANR granted the temperature increase for the late summer period of June 16 through October 14. ANR also imposed an average hourly temperature cap of 85° F at Station Three during the summer period. Finally, the amended permit required Entergy to include a "time series trend analysis" for each of the nine representative important species used in the 2004 § 316(a) demonstration to better assess the ecological impact of both Entergy's past thermal discharges as well as the discharge at issue in the amended permit.⁷

¶ 9. CRWC appealed ANR's decision to the Environmental Court. Pursuant to a de novo hearing of ANR decisions, the Environmental Court conducted a nine-day trial in which it heard from experts presented by CRWC, ANR, and Entergy to determine whether Entergy met its burden of showing that the requested permit amendment should be approved. On May 22, 2008, the Environmental Court issued its decision approving in part and denying in part the proposed amendment. The court approved the requested 1° F increase for the period from July 8 through October 14. Apparently concerned about the outmigration of post-spawned adult shad, the court denied the requested amendment for the period of June 16 through July 7 "unless the discharge can be managed so that it results in an actual measured temperature at the fishway sensor not to exceed 76.7° F." The court also ordered a temperature sensor to be installed at the fish conduit and required that the "actual measured temperature" at the fish conduit sensor not exceed 76.7° F during the June 16 through July 7 period. The court upheld the conditions imposed by ANR (requiring a time series trend analysis and setting a temperature cap of 85° F at Station Three).

¶ 10. Following some confusion about the court's...