                                 STATE OF VERMONT

                              ENVIRONMENTAL COURT

                                                                }
In re: Entergy Nuclear/ Vermont Yankee                          }
  Thermal Discharge permit amendment                            } Docket No. 89-4-06 Vtec
        (Appeal of Connecticut River Watershed Council,         }
               Trout Unlimited (Deerfield/Millers 349 Ch.),     }
               and Citizens Awareness Network)                  }
        (Appeal of New England Coalition                        }
               on Nuclear Pollution)                            }
        (Cross-Appeal of Entergy Nuclear                        }
               Vermont Yankee, LLC)                             }
                                                                }

                    Decision and Order on Renewed Motion for Stay

      Appellants     Connecticut    River    Watershed        Council,   Trout   Unlimited

(Deerfield/Millers 349 Chapter), Citizens Awareness Network (Massachusetts Chapter) and

New England Coalition on Nuclear Pollution, and Cross-Appellant Entergy Nuclear

Vermont Yankee, LLC, appealed from a March 30, 2006 decision of the Vermont Agency

of Natural Resources, approving an amendment of a thermal discharge permit issued to

Entergy Nuclear Vermont Yankee, LLC.

      Appellants Connecticut River Watershed Council (CRWC), Trout Unlimited, and

Citizens Awareness Network (CAN) are represented by Patrick A. Parenteau, Esq., David

K. Mears, Esq., and Justin E. Kolber, Esq.; Appellant New England Coalition on Nuclear

Pollution (NECNP) is represented by Evan J. Mulholland, Esq.; Cross-Appellant-Applicant

Entergy Nuclear Vermont Yankee, LLC (Entergy) is represented by Elise N. Zoli, Esq.,

Peter D. Van Oot, Esq., Sarah Heaton Concannon, Esq. and U. Gwyn Williams, Esq.; the

Vermont Agency of Natural Resources is represented by Catherine Gjessing, Esq. and

Warren T. Coleman, Esq.; and the Water Resources Panel of the Natural Resources Board


                                            1
is represented by John H. Hasen, Esq.1

       Appellants have renewed their motion to stay the permit amendment, pending the

conclusion of the merits of this appeal2. The trial is scheduled to be held at the Windham

Superior Courthouse in Newfane on June 26, 27, 28 and 29; on July 5 and 6; and on July 9,

10, 11, 12, and 13; and will continue, if necessary, at the Environmental Court in Berlin on

July 26 and 27. In addition, July 3 is available on the Court’s schedule for any motion

hearings or conferences by telephone. The final submission of responsive memoranda on

the parties’ requests for findings and memoranda of law is due (on the present schedule)

on August 9, 2007.

       The permit amendment on appeal in this matter allows the thermal discharge from

Entergy Nuclear/Vermont Yankee to increase the temperature of the Connecticut River,

within a defined measurement area or mixing zone, by an additional 1/ F (by comparison

to its existing permit3) from June 16 through October 14 of each year. Appellants argue that

the stay will preserve the status quo of Entergy’s existing permit conditions during the

pendency of this litigation. It is the applicant that bears the burden of proof that it qualifies

for the amendment at issue in this appeal.

       As in 2006, the Court is obligated to consider the movants’ likelihood or substantial


       1
        The Windham Regional Commission appeared through James Matteau and John
Bennett but has since withdrawn as a party.
       2
        The Court has considered all the memoranda filed in relation to this motion; any
motions to exclude them are DENIED as moot.
       3
         The underlying permit of which this is an amendment expired on March 30, 2006.
The parties have advised the Court that the renewal permit process is unlikely to result in
the issuance of a renewal permit until at least January of 2008, and the Court therefore
denied a motion to consolidate the prospective appeal of that permit with the present
appeal. V.R.E.C.P. 2(b). The parties should be prepared to advise the Court whether the
thermal discharge conditions are also at issue in the renewal permit proceedings.

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possibility of success on the merits of this de novo appeal, any irreparable injury that may

occur in the absence of a stay, whether the grant of a stay will substantially harm other

parties, and whether a stay will serve the best interests of the public. In re Allied Power

& Light Co., 132 Vt. 554, 556 (1974), as discussed by Justice Skoglund in issuing a stay

during the pendency of the appeal in In re Stormwater NPDES Petition, Docket No. 2004-

515 (Vt. Supreme Ct., April 7, 2005).

       For the purposes of a motion to stay in a case such as this, the status quo is the

facility’s continued operation under its existing permit, not its operation under the

amendment on appeal. In their memoranda, the parties continue to raise the issue of the

scope of this proceeding in this Court. As we explained in 2006 and in footnote 4 on page

5 of the decision issued today on the other pending motions, the statutory provision under

which this appeal is taken is entirely unambiguous that it is de novo. 10 V.S.A. §8504(h).

Unlike in judicial review of administrative agency action in the federal system or in some

other states, no presumption is afforded the fact that the permit amendment was issued by

the ANR, and the Court is not charged with determining whether the ANR determination

is supported by substantial evidence on the record as a whole.

       The fact that the appeal is de novo casts no aspersions on the capability, hard work,

or careful consideration given to these or any other proceedings at the ANR level. It was

the legislature, not this court, that established the de novo standard applicable to cases in

which the ANR is the decisionmaker appealed from; it was equally a de novo standard

when such appeals were heard by the Water Resources Board under former 10 V.S.A.

§1269. The de novo standard in these appeals may be contrasted with the deference given

ANR technical determinations in Act 250 land use cases, 10 V.S.A. §8504(i), or the deference

given ANR technical pollution abatement or environmental restoration directives in

enforcement cases. Compare 10 V.S.A. §8012(b)(2) (ANR orders which must be remanded

to the agency if the Court disagrees with the remedial provisions) with 10 V.S.A.

                                             3
§8012(b)(3), (4), (5) (those which may be modified or determined anew by the Court). The

de novo standard does not allow or encourage the Court to make policy contrary to that

promulgated by the ANR in its regulations or the legislature in its statutes; rather, the

Court is obligated to apply to the evidence which the parties will present in the scheduled

trial the same substantive standards as were applicable before the agency.

       Appellants have come forward with sufficient evidence to demonstrate a substantial

possibility that they will prevail on the merits; that is, a sufficiently substantial possibility

to examine and weigh the other factors to be considered in whether or not to grant a stay.

       Appellants have shown sufficient potential for irreparable injury to American shad

in the Connecticut River through the summer of 2007 (for the growth of the present cohort

of juveniles and as they become accustomed to cooler water temperatures prior to their

migration down the river in the fall) to warrant the stay during the pendency of this

summer’s trial, at which further evidence is expected to be presented as to the relative

effects of predation, river temperature and any other factors4 on fluctuations in the

population of shad, salmon and any other indicator species.

       On the other hand, the grant of the stay will not substantially harm the other parties.

Entergy has only shown a financial consequence to it, due to the operation of the cooling

towers rather than the discharge to the river during the applicable period. Because the

harm is financial, by definition it is not irreparable. The Court expects that the parties at

trial will address Entergy’s proffered evidence regarding back pressure in the hottest

summer months and the respective limitations of the cooling towers and the river cooling

capacity under certain operating conditions. During the approximate two-and-a half to


       4
          The parties should be prepared to discuss whether they propose to present
evidence on other operating characteristics of the Vermont Yankee facility or whether
factors relevant to the renewal permit application may not be relevant to this application.


                                               4
three months of the stay, Entergy will be able operate, as it has done, under the terms and

conditions of its previous permit.

       Entergy argues that harm will occur to the public interest due to the effect on the

emission of greenhouse gases into the atmosphere that would not otherwise have been

emitted. The economic report provided in support of this argument, however, does not

provide useful information on the difference between the two scenarios solely during the

two-and-a-half to three months between June 15, 2007 and the conclusion of the litigation

regarding this one-degree amendment, which is the only period of time this stay would be

in effect. Rather, it assumes that a stay would be in effect until the year 2030. This period

is an absurdity for several reasons, not the least of which is that by that time Entergy would

be applying for (and the ANR staff would be working on and the other parties would be

commenting on) the terms of the sixth five-year renewal permit after the one currently

being considered.

       To the extent that it is even valid to interpolate a three-month 2007 value from the

evidence provided by Entergy, it appears that a relatively small amount of money would

be expended on the operation of the cooling towers during that time, due to the stay, that

would not have had to have been expended in any event on cooling tower operation under

the permit amendment.

       Further, the assumption presented in this scenario is that the energy expended on

the cooling towers or unable to be generated at Vermont Yankee due to the stay of the one-

degree amendment would necessarily have to be generated by coal-fired or natural-gas-

fired power plants that would be putting more greenhouse gases into the atmosphere than

they would have done without the stay. The evidence does not reflect whether those

greenhouse-gas-emitting plants would be generating that capacity without regard to

whether the Vermont Yankee plant were operating under its existing permit or under the

amendment. Nor does the report reflect whether any of that energy would have come

                                              5
from other nuclear-generated energy, or that generated by hydro, solar, wind or other

energy sources, nor whether energy conservation could reasonably make up the difference,

and does not address what proportion of the users of that energy would be located in

Vermont or in New England, that is, near the ecosystem at issue in this case.

      As stated in the 2006 stay ruling, the public will view the plume of water vapor from

the cooling tower, but no substantial harm has been shown to result from the mere

visibility of the plume to the public. Nor have the parties shown any harm to the public

interest from any impairment of the river’s flow or volume, due to the operation of the

cooling towers in the summer under the present permit.

      Balancing the potential positive and negative effects of a two-and-a half to three

month stay of this permit amendment on the public interest, the Court concludes that the

stay is warranted.



      Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

Appellants’ Motion for Renewed Stay is GRANTED, suspending the implementation of the

one-degree permit amendment, to remain in effect until a decision is issued on the pending

application for the permit amendment, or until further order of the Court.



      Done at Berlin, Vermont, this 6th day of June, 2007.




                           _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




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