A Heated Controversy: The Vermont Supreme Court Upholds Thermal Discharge Variance for Connecticut River

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SandBar 9:1, April, 2010 Recommended citation: Michael McCauley , A Heated Controversy: The Vermont Supreme Court Upholds Thermal Discharge Variance for Connecticut River, 9:1 SandBar 10 (2010). A Heated Controversy The Vermont Supreme Court Upholds Thermal Discharge Variance for Connecticut River Michael McCauley, 2L, University of Mississippi School of Law The Vermont Supreme Court recently upheld an amendment to a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act (CWA), allowing an energy company to increase the temperature of discharge water it released into the Connecticut River.1 Despite affirming the variance, the court held that the state may set stricter thermal effluent standards than contained in the CWA. Background Entergy Vermont Yankee (Entergy) operates a nuclear power station along the Connecticut River. To generate electricity, the plant uses heated water to create steam, which turns turbines to drive generators. Steam that has passed through the turbines must be condensed, requiring removal of heat. To remove the heat and lower the temperature of the nuclear reactors, water is drawn from the Connecticut River into a cooling system. The heated water may either be discharged through “closed cycle cooling” in which the water is mechanically cooled or through “open cycle cooling” in which the water is discharged back into the river. Water discharged back into the river is considered a pollutant under § 316(a) of the CWA and is regulated through NPDES permits. In 2003, Entergy sought a variance to its permit, which would allow it to increase thermal discharge. The Vermont Agency of Natural Resources (ANR) issued an amended NPDES discharge permit allowing Entergy to increase thermal discharge and raise the temperature of the Connecticut River by one degree from July 8 through October 14. A number of local environmental groups, including The Connecticut River Watershed Council, Trout Unlimited, and Citizens Awareness Network (collectively, CRWC), appealed the decision to the Vermont Environmental Court. CRWC’s primary concern was retaining the water quality for American shad, whose population in the river above the reactor has dwindled from over 37,000 in 1991 to only a few hundred in 2005. The Environmental Court approved the ANR decision, but imposed monitoring and additional temperature conditions to the amended permit. CRWC appealed the Environmental Court’s decision by arguing “(1) the court misapplied various aspects of the CWA; (2) the court failed to properly apply the Vermont Water Quality Standards; (3) and the court exceeded the scope of its authority by including substantive conditions to the amended permit.”2 Entergy and ANR cross-appealed, arguing that the CWA should override state requirements. CWA To receive a variance from applicable thermal discharge standards, including state water quality standards, § 316 of the CWA requires the discharger to demonstrate that alternative thermal limits will not cause significant harm to aquatic life.3 “Whether or not a thermal variance is appropriate turns on whether a balanced, indigenous, population (BIP) of fish and wildlife can be adequately protected.”4 The CRWC argued that the Environmental Court erred in several aspects of applying § 316(a). First, the CRWC stated that the Environmental Court erred in failing to analyze the appropriate “body of water” affected by the thermal plume. The CRWC argued that the court should have included an analysis of Holyoke Dam, located fifty miles below Entergy’s reactor. The Vermont Supreme Court held that it was unnecessary to analyze potential impacts further downstream, noting that “the applicable body of water is only that which is affected by Entergy’s thermal plume.”5 Relying on testimony that the plume could not be detected past Turner’s Falls Dam, a point farther upstream than Holyoke Dam, the Vermont Supreme Court held that the Environmental Court did not err in its definition of the applicable body of water. The CRWC also argued that the Environmental Court failed to require Entergy to demonstrate that prior discharges have not caused “prior appreciable harm.” The court disagreed and ruled that Entergy’s use of both prospective and retrospective evaluation of biological effects met the statutory requirements of the CWA. Entergy had provided extensive testimony from an expert with thirty-three years of experience studying that particular portion of the river. The court found that the Environmental Court reasonably relied on this testimony in determining that the BIP would be adequately protected. Finally, CRWC objected to the Environmental Court’s adoption of the representative important species chosen by Entergy. The group argued that more warm water species were chosen, which would not be as adversely affected by thermal plumes. The court rejected this argument as well, noting the special attention given to Atlantic salmon, the most thermally sensitive species on the list. Additionally, other species that CRWC insisted should have been used did not even use the main channel of the Connecticut River. Vermont Water Quality Standards CRWC also argued that the Environmental Court failed to apply the Vermont Water Quality Standards (VWQS), while Entergy argued that the federal provisions regarding thermal discharge variances should take precedence over the state requirements. The court rejected Entergy’s argument that the federal provisions regarding thermal discharge variances should take precedence over the state requirements. The court found that the federal requirements for the content of state water quality standards represent a floor and state standards may be stricter. The court held that Entergy’s argument would have the effect of nullifying the VWQS. Though the court found the state water quality standards applicable, the court rejected CRWC’s arguments that the court failed to apply the VWQS. The court held that the Environmental Court correctly analyzed both CWA and VWQS regulations in tandem rather than separately, but found no error in this analysis. Environmental Court’s Permit Conditions The final issue concerned the additional conditions placed on the permit by the Environmental Court. These conditions included the installation of temperature sensors and required that between June 16 and July 7, the discharge be managed so that the temperature would not exceed 76.7 degrees. This was added out of concern for the shad populations. The CRWC, Entergy, and ANR all argued that the Environmental Court exceeded its authority in attaching these conditions. The Vermont Supreme Court held that while the Environmental Court must allow proper deference to the agencies, it is granted broad discretion in reviewing ANR determinations, and this discretion necessarily includes the ability to impose permit conditions. However, the Court held that any additional conditions by the Environmental Court must be supported by adequate basis within the record. In the present case, the court found virtually no evidence in the record regarding the threshold temperature of 76.7 degrees, only “abstract concerns” without adequate findings to justify the condition. Nothing was referenced in the Environmental Court’s ruling regarding temperature conditions. The court, therefore, ultimately upheld the permit but without these additional conditions. Conclusion The Vermont Supreme Court affirmed ANR’s decision to grant Entergy a variance, but reversed the Environmental Court’s additional conditions. Entergy hailed the decision a victory, insisting the variance request was based on scientific, peer-reviewed data and that the company is a responsible steward of the river.6 However, the Vermont Supreme Court did confirm that the state may set thermal effluent standards stricter than the federal CWA standards. Additionally, it held that the Environmental Court could attach additional conditions to permits so long as there was sufficient evidence within the record to do so. In news reports, CRWC responded by stating Entergy’s request was only made to save the company money at the expense of the ecological health of the river.7 Entergy is in the process of renewing its NPDES permit and CRWC pledged it would appeal that decision as well. “This was the first round in what will be an ongoing battle,” said David Mears, director of Vermont Law School’s Environmental and Natural Resources Law Clinic, which represented CRWC and agued the case before the Supreme Court of Vermont.8 In the end, this court decision may have little actual impact on the operation of Entergy’s nuclear reactor. In February of 2010 Vermont’s Senate voted 26 to 4 to shut down the nuclear plant, citing radioactive tritium leaks.9 Endnotes 1. ‑In re Entergy Nuclear Vermont Yankee Discharge Permit 3-1199, 2009 VT 124 (Vt. 2009). 2. Id. at 13. 3. 33 U.S.C. § 316(a). 4. Id.* 5. 2009 VT 124 at 19. 6. Howard Weiss-Tisman, Vermont Supreme Court Upholds Discharge Ruling, Brattleboro Reformer, Dec. 19, 2009, available at* http://www.allbusiness.com/legal/legal-services-litigation/13625859-1.html . 7. Id. 8. Press Release, Vermont Supreme Court Issues Connecticut River Decision (Dec. 18, 2009) available at http://www.ctriver.org/newsroom/press_ release_and_news_articles/?p=73. 9. Matthew L. Wald, As Clock Ticks, Nuclear Plant Searches for Leak, N.Y. Times, Feb. 26, 2010.
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SandBar 9:1, April, 2010
Recommended citation: Michael McCauley , A Heated Controversy: The Vermont Supreme Court Upholds Thermal Discharge Variance for Connecticut River, 9:1 SandBar 10 (2010).

A Heated Controversy
The Vermont Supreme Court Upholds Thermal Discharge Variance for Connecticut River

Michael McCauley, 2L, University of Mississippi School of Law

The Vermont Supreme Court recently upheld an amendment to a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act (CWA), allowing an energy company to increase the temperature of discharge water it released into the Connecticut River.1 Despite affirming the variance, the court held that the state may set stricter thermal effluent standards than contained in the CWA.

Background
Entergy Vermont Yankee (Entergy) operates a nuclear power station along the Connecticut River. To generate electricity, the plant uses heated water to create steam, which turns turbines to drive generators. Steam that has passed through the turbines must be condensed, requiring removal of heat. To remove the heat and lower the temperature of the nuclear reactors, water is drawn from the Connecticut River into a cooling system. The heated water may either be discharged through “closed cycle cooling” in which the water is mechanically cooled or through “open cycle cooling” in which the water is discharged back into the river. Water discharged back into the river is considered a pollutant under § 316(a) of the CWA and is regulated through NPDES permits.
      In 2003, Entergy sought a variance to its permit, which would allow it to increase thermal discharge. The Vermont Agency of Natural Resources (ANR) issued an amended NPDES discharge permit allowing Entergy to increase thermal discharge and raise the temperature of the Connecticut River by one degree from July 8 through October 14.
      A number of local environmental groups, including The Connecticut River Watershed Council, Trout Unlimited, and Citizens Awareness Network (collectively, CRWC), appealed the decision to the Vermont Environmental Court. CRWC’s primary concern was retaining the water quality for American shad, whose population in the river above the reactor has dwindled from over 37,000 in 1991 to only a few hundred in 2005. The Environmental Court approved the ANR decision, but imposed monitoring and additional temperature conditions to the amended permit.
      CRWC appealed the Environmental Court’s decision by arguing “(1) the court misapplied various aspects of the CWA; (2) the court failed to properly apply the Vermont Water Quality Standards; (3) and the court exceeded the scope of its authority by including substantive conditions to the amended permit.”2 Entergy and ANR cross-appealed, arguing that the CWA should override state requirements.

CWA
To receive a variance from applicable thermal discharge standards, including state water quality standards, § 316 of the CWA requires the discharger to demonstrate that alternative thermal limits will not cause significant harm to aquatic life.3 “Whether or not a thermal variance is appropriate turns on whether a balanced, indigenous, population (BIP) of fish and wildlife can be adequately protected.”4
      The CRWC argued that the Environmental Court erred in several aspects of applying § 316(a). First, the CRWC stated that the Environmental Court erred in failing to analyze the appropriate “body of water” affected by the thermal plume. The CRWC argued that the court should have included an analysis of Holyoke Dam, located fifty miles below Entergy’s reactor. The Vermont Supreme Court held that it was unnecessary to analyze potential impacts further downstream, noting that “the applicable body of water is only that which is affected by Entergy’s thermal plume.”5 Relying on testimony that the plume could not be detected past Turner’s Falls Dam, a point farther upstream than Holyoke Dam, the Vermont Supreme Court held that the Environmental Court did not err in its definition of the applicable body of water.
      The CRWC also argued that the Environmental Court failed to require Entergy to demonstrate that prior discharges have not caused “prior appreciable harm.” The court disagreed and ruled that Entergy’s use of both prospective and retrospective evaluation of biological effects met the statutory requirements of the CWA. Entergy had provided extensive testimony from an expert with thirty-three years of experience studying that particular portion of the river. The court found that the Environmental Court reasonably relied on this testimony in determining that the BIP would be adequately protected.
      Finally, CRWC objected to the Environmental Court’s adoption of the representative important species chosen by Entergy. The group argued that more warm water species were chosen, which would not be as adversely affected by thermal plumes. The court rejected this argument as well, noting the special attention given to Atlantic salmon, the most thermally sensitive species on the list. Additionally, other species that CRWC insisted should have been used did not even use the main channel of the Connecticut River.

Vermont Water Quality Standards
CRWC also argued that the Environmental Court failed to apply the Vermont Water Quality Standards (VWQS), while Entergy argued that the federal provisions regarding thermal discharge variances should take precedence over the state requirements. The court rejected Entergy’s argument that the federal provisions regarding thermal discharge variances should take precedence over the state requirements. The court found that the federal requirements for the content of state water quality standards represent a floor and state standards may be stricter. The court held that Entergy’s argument would have the effect of nullifying the VWQS. Though the court found the state water quality standards applicable, the court rejected CRWC’s arguments that the court failed to apply the VWQS. The court held that the Environmental Court correctly analyzed both CWA and VWQS regulations in tandem rather than separately, but found no error in this analysis.

Environmental Court’s Permit Conditions
The final issue concerned the additional conditions placed on the permit by the Environmental Court. These conditions included the installation of temperature sensors and required that between June 16 and July 7, the discharge be managed so that the temperature would not exceed 76.7 degrees. This was added out of concern for the shad populations. The CRWC, Entergy, and ANR all argued that the Environmental Court exceeded its authority in attaching these conditions.
The Vermont Supreme Court held that while the Environmental Court must allow proper deference to the agencies, it is granted broad discretion in reviewing ANR determinations, and this discretion necessarily includes the ability to impose permit conditions. However, the Court held that any additional conditions by the Environmental Court must be supported by adequate basis within the record. In the present case, the court found virtually no evidence in the record regarding the threshold temperature of 76.7 degrees, only “abstract concerns” without adequate findings to justify the condition. Nothing was referenced in the Environmental Court’s ruling regarding temperature conditions. The court, therefore, ultimately upheld the permit but without these additional conditions.

Conclusion
The Vermont Supreme Court affirmed ANR’s decision to grant Entergy a variance, but reversed the Environmental Court’s additional conditions. Entergy hailed the decision a victory, insisting the variance request was based on scientific, peer-reviewed data and that the company is a responsible steward of the river.6 However, the Vermont Supreme Court did confirm that the state may set thermal effluent standards stricter than the federal CWA standards. Additionally, it held that the Environmental Court could attach additional conditions to permits so long as there was sufficient evidence within the record to do so.
In news reports, CRWC responded by stating Entergy’s request was only made to save the company money at the expense of the ecological health of the river.7 Entergy is in the process of renewing its NPDES permit and CRWC pledged it would appeal that decision as well. “This was the first round in what will be an ongoing battle,” said David Mears, director of Vermont Law School’s Environmental and Natural Resources Law Clinic, which represented CRWC and agued the case before the Supreme Court of Vermont.8 In the end, this court decision may have little actual impact on the operation of Entergy’s nuclear reactor. In February of 2010 Vermont’s Senate voted 26 to 4 to shut down the nuclear plant, citing radioactive tritium leaks.9

Endnotes
1. ‑In re Entergy Nuclear Vermont Yankee Discharge Permit 3-1199, 2009 VT 124 (Vt. 2009).
2. Id. at *13.
3. 33 U.S.C. § 316(a).
4. Id.
5. 2009 VT 124 at *19.
6. Howard Weiss-Tisman, Vermont Supreme Court Upholds Discharge Ruling, Brattleboro Reformer, Dec. 19, 2009, available at http://www.allbusiness.com/legal/legal-services-litigation/13625859-1.html .
7. Id.
8. Press Release, Vermont Supreme Court Issues Connecticut River Decision (Dec. 18, 2009) available at http://www.ctriver.org/newsroom/press_ release_and_news_articles/?p=73.
9. Matthew L. Wald, As Clock Ticks, Nuclear Plant Searches for Leak, N.Y. Times, Feb. 26, 2010.