In re Entergy Nuclear
2009 VT 124
[Filed 18-Dec-2009]
NOTICE: This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court,
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2009 VT 124 |
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In re Entergy Nuclear Permit 3-1199 |
Supreme Court |
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On Appeal from |
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David K. Mears and Patrick A. Parenteau, Environmental and Natural Resources Law Clinic,
William H. Sorrell, Attorney General, Bridget C. Asay
and Kevin O. Leske, Assistant Attorneys
General,
Matthew S. Borick of Downs Rachlin Martin PLLC,
Williams of Goodwin Procter LLP,
Entergy Nuclear
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
¶ 2.
Entergy operates the Vermont Yankee Nuclear Power Station, a boiling
water nuclear reactor located on the western shore of the Connecticut River in
¶ 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.”
¶ 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.
¶ 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
¶ 6. The Vermont Yankee nuclear power facility has a long history of such thermal variance requests. In 1978, Entergy’s predecessor-in-interest’s[3] 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
¶ 8.
In 2003, Entergy sought to amend its permit once again to allow its
thermal discharge to increase the temperature of the
¶ 9.
CRWC appealed ANR’s decision to the
¶ 10. Following some confusion about the court’s added temperature and monitoring conditions, CRWC, ANR and Entergy all requested clarification of aspects of the decision and order. Entergy asked for correction of what it deemed to be “a stenographic error” in the choice of 76.7° F for the June 16 through July 7 period. Entergy also requested clarification as to whether it was allowed to use an alternate monitor in the event that the monitors cited in the court’s May 22 order were temporarily out-of-commission. Entergy and ANR also requested clarification as to whether the monitoring requirement and discharge limitation applied only when the fish ladder at Vernon Dam was in operation. ANR requested clarification as to whether the court intended the fish conduit temperature sensor to be installed regardless of whether Entergy actually increased the temperature by 1° F. ANR also requested clarification as to whether the 76.7° F cap was a measure of actual temperature or plant-induced temperature. Finally, CRWC filed a motion requesting that the court direct ANR to submit the May 22 decision and order to the EPA for review, that ANR provide for public notice and comment on the permit amendment, and that the court stay the decision during this time.
¶ 11. In a decision and order dated June 30, 2008, the Environmental Court affirmed its choice of 76.7° F as a cap on ambient temperature as measured at the fishway and fish conduit and clarified that the imposition of this number was based on its rejection of an 86° F avoidance temperature for all life stages of shad (this avoidance temperature was proffered by Entergy experts and appeared to be the basis for ANR’s decision to impose an 85° F temperature cap). The court clarified that its reason for imposing the lower temperature cap for the June 16 through July 7 period was to protect shad during their upstream adult migration. The court further clarified that the 76.7° F cap is an “actual measured temperature” and not a “plant-induced temperature.”
¶ 12. With
regard to the monitoring conditions, the court clarified that it intended the
temperature sensor to be installed at the downstream fish conduit at all times
and stated that the temperature sensor shall be installed at the fish conduit
and monitored when the fish conduit is in operation during both the summer and
winter periods of operation. The court, however, noted that only limited
evidence was presented at trial regarding the actual locations of the fish
ladder, fish conduit, and fish pipe and of the exact location of the current
temperature sensor, and the court advised Entergy and ANR to bring any concerns
with regard to monitoring to the Environmental Advisory Committee during
proceedings for the renewal permit that will supersede the Environmental
Court’s May 2008 decision. Finally, the
¶ 13. CRWC appealed the Environmental Court’s decision granting the amendment to this Court, arguing that: (1) the court misapplied various aspects of the Clean Water Act; (2) the court failed to properly apply the Vermont Water Quality Standards; and (3) the court exceeded the scope of its authority by including substantive conditions to the amended permit instead of denying the application and remanding to ANR. CRWC further argues that the court failed to support its conclusions with specific findings.
¶ 14. ANR
and Entergy cross-appealed the new substantive conditions imposed by the
¶ 15. We
begin by setting forth the standard of review. Decisions of the
I. The Clean Water Act
¶ 16. On
appeal, CRWC argues that the
¶ 17. We
address each of CRWC’s arguments in turn. CRWC
first contends that the river segment analysis in Entergy’s 2004 § 316(a)
demonstration used a flawed definition of “body of water” that did not reflect
the entire area affected by Vermont Yankee’s thermal plume. Entergy’s
nuclear power station is located on the western shore of the
¶ 18. Though “body of water” is not explicitly defined within the federal laws and regulations regarding thermal effluents, there is repeated reference to “the body of water into which the discharge is to be made.” See 33 U.S.C. § 1326(a) (providing that thermal variance is allowable only if applicant can demonstrate that ecosystem will be protected “in and on the body of water into which the discharge is to be made”); 40 C.F.R. § 125.71(b) (defining “resident important species” in terms of the community of shellfish, fish, and wildlife “in the body of water into which the discharge of heat is made”); id. § 125.73 (describing criteria for qualifying for a thermal variance to assure protection and propagation of ecosystem “in and on the body of water into which the discharge is made”).
¶ 19. Given
the statutory and regulatory language set forth in the CWA, the applicable body
of water is only that which is affected by Entergy’s thermal plume. The
¶ 20. CRWC
next argues that the
¶ 21. Whether or not a thermal variance is appropriate turns on whether a “balanced, indigenous population” (BIP) of fish, shellfish, and wildlife can be adequately protected and propagated. 33 U.S.C. § 1326(a). Federal regulations define BIP as:
a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic seasonal changes, presence of necessary food chain species and by a lack of domination by pollution tolerant species. . . . [S]uch a community . . . may not include species whose presence or abundance is attributable to alternative effluent limitations imposed pursuant to Section 316(a).
40 C.F.R. § 125.71(c).
To demonstrate that the thermal discharge will assure protection and
propagation of a BIP, an applicant for a thermal variance must put forward a
comprehensive demonstration project meeting the criteria set forth in federal
regulations.
¶ 22. An
applicant may conduct this demonstration in one of three ways. First, an
applicant may use predictive studies to demonstrate that a thermal variance
will assure protection and propagation of the BIP. The EPA has
characterized this type of predictive demonstration as a “Type II”
demonstration. According to the EPA, a Type II demonstration will first
identify the “Resident Important Species” (RIS) for the relevant area. Indus. Permits
¶ 23. As an alternative to a Type II predictive demonstration, regulations also allow applicants to demonstrate that the BIP will be adequately protected through a retrospective demonstration showing “the absence of prior appreciable harm.” 40 C.F.R. § 125.73(c)(1). This is referred to in the EPA Guidance as a “Type I” demonstration. 1977 EPA Guidance § 3.9. A Type I demonstration must show the following:
(i) That no appreciable harm has resulted from the normal component of the discharge taking into account the interaction of such thermal component with other pollutants and the additive effect of other thermal sources to a balanced, indigenous community . . .; or
(ii) That despite the occurrence of such previous harm, the desired alternative effluent limitations . . . will nevertheless assure the protection and propagation of a balanced, indigenous community. . . .
40 C.F.R. § 125.73(c)(1)(i)-(ii). Thus, a showing of no prior appreciable harm is a showing
necessary only in a Type I demonstration.[8]
¶ 24. Finally,
though not explicitly laid out in 40 C.F.R. § 125.73, there is a third “Type
III” showing available to an applicant, which amounts to a hybrid of a Type I
and Type II demonstration. 1977 EPA Guidance
§ 3.7. This third showing is arguably more open-ended than
the first two and allows for “the submittal of any information which the Regional
Administrator/Director believes may be necessary or appropriate to facilitate
evaluation of a particular discharge . . . [and]
submittal of any additional information which the applicant may wish to have
considered.”
¶ 25. Here, Entergy used a hybrid Type III § 316(a) demonstration in support of its permit amendment application. The preface to the 2004 § 316(a) demonstration report states that Entergy used a “combination of predictive and empirical assessment methods and data” to analyze the impact of the proposed thermal variance. The principal author of Entergy’s 2004 § 316(a) demonstration, Dr. Mark Mattson, testified at trial that the demonstration submitted was a Type III demonstration “because it used a combination of both predictive and retrospective evaluations to interpret the biological effects, if any, of the predicted thermal regime.” ANR also construed the demonstration proffered by Entergy as a Type III showing. In pre-filed testimony presented to the Environmental Court, Doug Burnham, ANR’s Biomonitoring and Aquatic Studies Section Chief for the Water Quality Division, testified that ANR determined that the appropriate § 316(a) demonstration “should involve aspects of both Type I and Type II demonstrations (possibly classified as a Type III demonstration).” Thus, ANR evaluated both predictive and retrospective data proffered by Entergy in its § 316(a) demonstration.
¶ 26. This type of hybrid demonstration is consistent with both the language of 40 C.F.R. § 125.73 and the 1977 EPA Guidance. CRWC contends that the 1977 EPA Guidance is meant to be a “starting point” for discussions between the applicant and the permit authority, and that the circumstances surrounding the particular permit application at issue, including a past history of thermal discharge increases, should be taken into account. While this is true, it does not follow that because Entergy failed to put forward a Type I demonstration, that it did not put forward adequate data regarding the effect of past discharges.
¶ 27. The important point is that, notwithstanding the type of demonstration an applicant puts forward, the CWA and its regulations require analysis of the proposed thermal variance in the context of past discharges. 33 U.S.C. § 1326(a) (requiring effluent limitation be imposed after “taking into account the interaction of such thermal component with other pollutants”); 40 C.F.R. § 125.71 (defining balanced indigenous community as explicitly not including “species whose presence or abundance is attributable to the introduction of pollutants that will be eliminated by compliance” with provisions of the CWA); 40 C.F.R. § 125.73(a) (requiring demonstration show that “considering the cumulative impact of its thermal discharge together with all other significant impacts on the species affected,” the proposed variance will assure the protection and propagation of a balanced indigenous community). The need for this type of showing stems from a public policy objective to keep permit holders from degrading a body of water over time, and then using the new degraded ecosystem as a baseline to demonstrate that each renewal permit will nonetheless assure this new degraded BIP. Brayton Point, 12 E.A.D. at 557 (remand order recognizing that “[b]y requiring a showing that the BIP has not been harmed by the existing discharger’s prior discharges [federal regulations] implicitly suggest[] that the population under consideration is not necessarily just the population currently inhabiting the water body but a population that may have been present but for the appreciable harm”). Thus, even if an applicant chooses to put forward a Type II or Type III demonstration, a showing of no prior appreciable harm is relevant to demonstrate a baseline BIP.
¶ 28. Despite
CRWC’s argument to the contrary, the
¶ 29. The Environmental Court heard extensive testimony from Dr. Mark Mattson, the author of the 2004 § 316(a) demonstration, who testified that he took into consideration thirty-three years worth of data on the portions of the Connecticut River affected by Vermont Yankee’s thermal plume, including sampling in lower Vernon pool and upper Turners Falls pool. Dr. Mattson concluded both that Entergy’s previous discharges had not degraded the river and that the proposed amendment would not harm the relevant BIP. Dr. Coutant, a fishery biologist who testified on behalf of Entergy at the Environmental Court hearing, reviewed Entergy’s § 316(a) demonstration and concluded that the demonstration adequately took into consideration the cumulative effects of past discharges on the relevant BIP. Based on this analysis, Dr. Coutant concluded that Atlantic salmon would not be harmed by the proposed discharge. Similarly, Mr. Burnham testified that he considered both prior appreciable harm as well as cumulative effects of past discharges during his review of Entergy’s permit amendment proposal. Mr. Burnham testified that the best measure of cumulative impact is an “in situ analysis” of the affected area:
We have always put a high value on biological monitoring under the presumption and understanding that the condition of the biological community represents the sum total of the cumulative effects of all stressors being applied to that community. A lot of states rely on chemical monitoring, habitat monitoring, different sorts of predictive analyses . . . . We’ve always found that although there is quite a bit of variation in biological communities, that the assessment of the community itself is the best measure of cumulative effects.
¶ 30. The
¶ 31. Though
CRWC contends otherwise, the type of in situ analysis relied on by the
¶ 32. At
the heart of CRWC’s argument regarding the effects of
Entergy’s past thermal discharges is the plight of the American shad and what
CRWC views as the Environmental Court’s failure to adequately explain its
reasoning for accepting Entergy’s testimony that the proposed discharge has not
and will not contribute to the decline of shad in the Connecticut River.
Expert testimony revealed that in 1991, there were over 37,000 shad that passed
through Vernon Dam. As of 2005, however, the number of shad that passed
through Vernon Dam measured just in the tens or hundreds. At trial, CRWC
and Entergy put forward differing theories explaining the precipitous decline
in the American shad in the
¶ 33. Entergy
relied on testimony from Dr. Laurence Barnthouse, who
evaluated four competing theories for the shad decline: (1) Entergy’s thermal
discharge; (2) harvesting (fishing/overfishing); (3) striped bass predation;
and (4) dam passage (particularly Turners Falls Dam). With regard to the
first hypothesis, Dr. Barnthouse evaluated data from
continuous thermal measurements taken during the period when shad pass through
the
¶ 34. Dr. Barnthouse testified that there was data to support the theory that striped bass predation was at least partly to blame for the decline in American shad; however, Dr. Barnthouse concluded that the chief culprit in the decline was the Turners Falls Dam. Based on analysis of the data, Dr. Barnthouse determined that American shad were simply not able to negotiate the fishway at Turners Falls Dam and were thus not able to reach the Vernon Dam.
¶ 35. Relying
on this testimony, the
¶ 36. CRWC
offered testimony to rebut the hypothesis that the shad decline was a result of
problems at the Turners Falls Dam, including testimony from Dr. Ross Jones, an
expert in evolutionary ecology. Dr. Jones testified that he observed no
changes in Turners Falls Dam that would explain the decrease in shad passage
and that more studies needed to be done to look at the effect of thermal
discharge on American shad. Though CRWC’s
theory may be plausible, we find that there was ample evidence presented to
support Entergy’s alternative theory. Moreover, a trial court’s finding
will not be overturned “merely because it is contradicted by substantial
evidence; rather, an appellant must show there is no credible evidence to
support the finding.” Highgate Assocs., Ltd. v. Merryfield, 157
¶ 37. In a
related argument, CRWC contends that the
¶ 38. The 1977 EPA Guidance recommends the selection of between five and twelve species and further provides that “[t]he most thermally sensitive species . . . in the local area should be identified and their importance should be given special consideration.” 1977 EPA Guidance § 3.5.2.1(1)(D). Federal regulations define the RIS as “species which are representative, in terms of their biological needs, of a balanced, indigenous community of shellfish, fish and wildlife in the body of water into which a discharge of heat is made.” 40 C.F.R. § 125.71(b).
¶ 39. In
selecting the RIS, the NPDES administrator considers a number of factors,
including: applicable state water quality standards, consultation with
fisheries and marine experts, special consideration of the presence of
threatened or endangered species, and special consideration of the most
thermally sensitive species. 1977 EPA Guidance
§ 3.5.2.1. Once the RIS is selected, laboratory and literary
studies should be completed for each RIS to determine what the effects of
thermal changes will be.
¶ 40. The 2004 § 316(a) demonstration project submitted by Entergy identified nine “Representative Important Species”: (1) Atlantic salmon; (2) American shad; (3) walleye; (4) yellow perch; (5) fallfish; (6) white sucker; (7) largemouth bass; (8) smallmouth bass; and (9) spottail shiner. Of these nine species, the Atlantic salmon is the sole cold water species. The walleye, yellow perch, and fallfish are classified as cool water species and the American shad, largemouth bass, smallmouth bass, and spottail shiner are warm water species. For each RIS chosen, Entergy submitted substantial literature and data. Relying on this data and testimony, the Environmental Court concluded that even though the group of RIS included more species adapted to warm water, the “selection of species is adequately representative of the complete balanced indigenous community that uses the areas of the Connecticut River affected or potentially affected by the thermal discharge from Vermont Yankee, as it includes species representative of the range of thermal sensitivity and other ecological requirements of that community.”
¶ 41. CRWC
nonetheless contends that despite the mandate of the statute to pay special
attention to the most thermally sensitive species, the RIS favored warm water
species at the expense of the more sensitive cold water species. We find
this argument to be without merit. The
¶ 42. Finally,
CRWC argues that the
¶ 43. The
burden of making the necessary showing under § 316(a) is necessarily on
the applicant. See Brayton Point I,
12 E.A.D. at 552 (noting that § 1326(a) and the regulations “clearly
impose the burden of proving that the . . . thermal
effluent limitations are too stringent on the discharger seeking the variance,
not on the Agency”). Though federal decisions applying § 316(a) have
determined that the burden is “stringent,” the “EPA has not . . . interpreted
[the statute] to require absolute certainty before a variance [can] be granted.”
Mirant
¶ 44. In
its decision, the
II. Vermont Water Quality Standards
¶ 45. Next,
CRWC argues that under the joint federal and state regulatory scheme for
enforcement of the CWA, the
¶ 46. In
¶ 47. The
VWQS, promulgated pursuant to the CWA, provide specific water quality criteria
applicable to any body of water designated a “cold water fish habitat,” as the
(1) The discharge will comply with all other applicable provisions of these rules;
(2) A mixing zone of 200 feet in length is not adequate to provide for assimilation of the thermal waste; and
(3) After taking into account the interaction of thermal effects and other wastes, that change or rate of change in temperature will not result in thermal shock or prevent the full support of uses of the receiving waters.
¶ 48. Despite Entergy’s arguments to the contrary, we do not interpret the CWA’s provisions regarding thermal discharge variances as completely obliterating the standards set forth in the VWQS. Such an interpretation would effectively render the VWQS a nullity. The Environmental Appeals Board, which hears appeals from NPDES permits issued by EPA Regional Administrators, adopts an analysis of § 316(a) thermal variances in line with this view and explicitly addresses applicable state water quality standards:
(1) the Agency must determine what the applicable technology and WQS-based limitations should be for a given permit; (2) the applicant must demonstrate that these otherwise applicable effluent limitations are more stringent than necessary to assure the protection and propagation of the BIP; (3) the applicant must demonstrate that its proposed variance will assure the protection and propagation of the BIP; and (4) in those cases where the applicant meets step 2 but not step 3, the Agency may impose a variance it concludes does assure the protection and propagation of the BIP.
Brayton Point, 12 E.A.D. at 557. Moreover, the regulations promulgated under 33 U.S.C. § 1326(a) make explicit reference to the applicable state thermal effluent standards, thus incorporating those standards into the analysis. 40 C.F.R. § 125.73(a) (“Thermal discharge effluent limitations or standards established in permits may be less stringent than those required by applicable standards and limitations . . . .”). The applicable standards in this case are the VWQS.
¶ 49. CRWC
argues that despite the applicability of the VWQS, the
¶ 50. The
first requirement of VWQS § 3-01(B)(1)(d)—that the discharge comply with
all other applicable provisions—is undoubtedly met here, as the only amendment
Entergy requested to its pre-existing permit involved thermal effluent
limitations. The second requirement—that the applicant demonstrate that a
mixing zone of 200 feet is not adequate to assimilate the thermal waste—was
decided in the first instance by ANR in the issuance of the pre-existing
permit. If a mixing zone of 200 feet was not adequate to assimilate
thermal effluent issued under the permit without the proposed temperature
increase, it goes without saying that such a mixing zone is inadequate to
assimilate thermal effluent issued under the amended permit. The
provisions of the pre-existing permit were not before the
III. The
¶ 51. We
next turn to the conditions imposed on the amended permit by the
¶ 52. Much
of the arguments by all three parties involve the appropriate standard of
review for the
¶ 53. The
In an appeal by trial de novo, all questions of law or fact as to which review is available shall be tried to the court, which shall apply the substantive standards that were applicable before the tribunal appealed from.
V.R.E.C.P. 5(g).
¶ 54. Our
case law interpreting this statutory framework supports the view that the
¶ 55. The
¶ 56. We
addressed a similar factual situation to the one before us now in our decision
in In re LiCausi,
2008 VT 59, 184 Vt. 75, 955 A.2d 1177. In that case, we addressed an
appeal regarding the
¶ 57. We turn now to the permit conditions at issue here. The court prefaced its imposition of a 76.7° F temperature cap for the period from June 16 through July 7 and imposition of additional monitoring requirements by rejecting the 86° F avoidance temperature for shad identified by Entergy experts:
However, the Court does not find the evidence credible to support the assumption that an 86° F avoidance temperature is applicable to all shad life stages. That avoidance temperature was derived from a study of the behavior of juvenile shad rather than adults. . . . [J]uvenile shad tolerate or even thrive at higher temperatures than adults, and even the tested juveniles were more likely to survive if acclimated to a higher ambient temperature rather than when encountering rapid changes to a high temperature.
¶ 58. The
Environmental Court seems to suggest that Entergy did not meet its burden in
showing that, despite the temperature increase, the shad would be adequately
protected at all life stages; however, the language used by the court on this
point is somewhat confusing (ruling that the requested 1° F increase for the period from June 16 through July 7 “is
denied, 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”). Even if we read
this language as a denial of this portion of the permit, the denial is unmoored
to adequate findings justifying it. Indeed, the court explicitly rejected
CRWC’s proffered theory that Entergy’s past thermal
discharges had caused a decline in shad. Once that theory had been
rejected, Entergy was left to prove an upper limit water temperature that would
support shad and other aquatic life. Entergy put forward biological and
hydrothermal experts proffering 86° F
as the appropriate limit; and though CRWC experts offered testimony suggesting
that more studies could be done to better measure the effects of temperature
change on shad, CRWC did not offer an alternative temperature. The
¶ 59. Similarly,
the court points to no evidence in the record connecting 76.7° F to an upper limit for the safe
outmigration of American shad at any life stage. We find only one reference
to this temperature in the literally thousands of pages of testimony and
exhibits before the
¶ 60. The
¶ 61. We
note that the situation before us stands in contrast to cases we have remanded
to ANR to undertake an appropriate analysis. See In re Stormwater NPDES Petition, 2006 VT 91, ¶¶ 29-30, 180
Affirmed in part and reversed in part.
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FOR THE COURT: |
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[1]
We uphold Entergy’s amended permit for the summer period of June 16 through
October 14 without the conditions added by the
[2] The relevant provisions pertaining to a thermal variance are as follows:
With respect to any point source otherwise subject to provisions of . . . this title, whenever the owner or operator of any such source, after opportunity for public hearing, can demonstrate to the satisfaction of the Administrator (or, if appropriate, the State) that any effluent limitation proposed for the control of the thermal component of any discharge from such source will require effluent limitations more stringent than necessary to assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made, the Administrator (or, if appropriate, the State) may impose an effluent limitation . . . with respect to the thermal component of such discharge (taking into account the interaction of such thermal component with other pollutants), that will assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on that body of water.
33 U.S.C § 1326(a).
[3] Entergy Nuclear Vermont Yankee purchased the facility from Vermont Yankee Nuclear Power Corporation in 2002.
[4]
Though Entergy’s permit expired in 2006, it has been operating under the terms
of the 2001 permit pursuant to 3 V.S.A. § 814(b). Entergy filed its
application for a new permit on September 30, 2005 and the proceedings over
that permit have not yet concluded. Given that Entergy’s new permit
application will involve an even broader inquiry into the impact of the
proposed discharge on the
[5] The following graph represents the changes Entergy sought to its permit:
Existing Thermal Effluent Limitations for Summer Period
|
Station 7 Temp. |
Increase in Temp. above Ambient at Station 3 |
|
Above 63° F |
2° F |
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>59° F, ≤63° F |
3° F |
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≥55° F, ≤59° F |
4° F |
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Below 55° F |
5° F |
Requested Thermal Effluent Limitations for Summer Period
|
Station 7 Temp. |
Increase in Temp. above Ambient at Station 3 |
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Above 78° F |
2° F |
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>63° F, ≤78° F |
3° F |
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>59° F, ≤63° F |
4°F |
|
≤59° F |
5°F |
[6] Entergy initially cross-appealed the denial of the temperature increase for the May 16 through June 15 period to the Environmental Court, but later withdrew that appeal.
[7] This type of time series trend analysis with respect to the collection of fish and macroinvertebrates was used in Entergy’s 2004 § 316(a) demonstration and was added as a new requirement in Entergy’s amended permit for future analyses to be consistent with the trend analysis used in the demonstration.
[8]
This type of showing was likely more common in the early days of the Clean
Water Act when facilities were moving from a non-regulated existence to
immediate imposition of thermal regulations of the Clean Water Act. Under
that circumstance, if a facility could demonstrate that no harm had come to the
ecosystem under its current mode of operation, that
was enough to satisfy the provisions of the CWA allowing for a certain amount
of thermal effluent to be discharged into a body of water. See In
re Pub.
[9] CRWC bases much of its argument
concerning the
[10]
CRWC’s argument that the
Existing uses of waters and the level of water quality necessary to protect those existing uses shall be maintained and protected regardless of the water’s classification. . . . In making a determination of the existing uses to be protected . . . , the Secretary shall consider at least the following factors:
a. Aquatic biota and wildlife that utilize or are present in the waters;
b. Habitat that supports existing aquatic biota, wildlife, or plant life;
c. The use of the waters for recreation or fishing;
d. The use of the water for water supply, or commercial activity that depends directly on the preservation of an existing high level of water quality; and
e. [W]ith regard[] to the factors considered under paragraphs (a) and (b) above, evidence of the use’s ecological significance in the functioning of the ecosystem or evidence of the use’s rarity.
VWQS § 1-03(B)(1).
Though the
[11]
We note, however, that the statutory scheme before us now differs from the
statutory scheme at issue in the cases cited by Entergy and ANR in one
important respect: within the statutes governing appeals of ANR actions, unlike
Act 250 in which the Legislature explicitly carved out deference to ANR by the
Environmental Court reviewing permit determinations, there is no such
legislatively mandated deference with regard to review of NPDES permits.
See 10 V.S.A. § 8504(i) (stating that “technical
determinations of the secretary shall be accorded the same deference as they
are accorded by a district commission under subsection 6086(d) of this title,”
i.e., “substantial deference”). Though there may be prudential reasons
for the
[12] Other states with analogous environmental review boards or courts have come to similar conclusions. See, e.g., Port of Seattle v. Pollution Control Hearings Bd., 90 P.3d 659, 672 (Wash. 2004) (noting that even in de novo hearing, state pollution control hearing board “cannot add conditions simply because it feels such conditions would make the certification more protective of water quality”).