Entergy is going back to federal court asking for assurance that the state will not shutter the plant March 21, when its current license expires.
Despite a victory in federal court finding two Vermont laws unconstitutional, attorneys for Entergy expressed concerns that the board would not allow Vermont Yankee to continue operating.
The Public Service Board held a status conference March 9, and briefs are due Friday.
Entergy already asked Judge J. Garvan Murtha for assurance that the plant could continue operating during the proceeding. The Public Service Board at the conference would not guarantee that the plant would keep operating.
With the clock ticking, Entergy’s motion in federal court asks Judge Murtha to preserve the status quo.
The filing states: “A statement from the PSB — in direct conflict with this Court’s Decision — that Plaintiffs may not operate during the interim period stands irreparably to damage Plaintiffs’ ability to keep VY open and to retain critical employees.”
In February, the board issued questions to Entergy and other parties in the docket asking if the plant could continue to operate after March 21. A state law that prevents the plant from storing spent fuel at Vermont Yankee after that date without approval from the Public Service Board.
The Vermont attorney general and Department of Public Service agree that the plant can continue operating while the Public Service Board determines whether to grant a new license. But the board last week questioned whether it had the ability to let Vermont Yankee keep producing spent fuel and pushed Entergy attorneys on why they hadn’t addressed the impending issue earlier.
Entergy’s filing says the delay is not the company’s fault, and the board would have made a decision earlier if it hadn’t been for the Vermont laws that spawned litigation and put the licensing hearing on hold.
Two Vermont laws required legislative approval for storage of spent nuclear fuel at Vermont Yankee after March 21 and for continued operation after that date. In 2010, the Vermont Senate voted against relicensing the plant, and the litigation in federal court ensued.
Federal district court Judge J. Garvan Murtha ruled the Atomic Energy Act pre-empted the two state laws, but his decision left the Public Service Board’s discretion intact.
When the board reopened the proceeding and asked whether the plant could continue to operate, Entergy fired off an immediate request to the court asking it to let the plant operate after March 21.
The status conference apparently did not instill confidence.
Wednesday’s request for a ruling states: “The very real prospect that the PSB will answer its own questions adversely to Plaintiffs, and thus order that VY must cease operation or storage of SNF from operation after March 21, 2012, stands irreparably to harm Plaintiffs.”
The company’s filing implies it might continue operating even if the board says it should not.
The motion goes on: “[O]n March 9, 2012, the PSB made clear that it does not necessarily agree with the AG’s and the DPS’s view. In the event that the PSB ultimately disagrees, Plaintiffs will be forced either to cease operating or, if they defy the PSB by continuing to operate, to face the prospect of a diminished credit rating, a loss of crucial employees, and a demerit in the PSB’s consideration of Plaintiffs’ petition for a new CPG.”
Environmental groups have pushed for the plant to shut down March 21.
Sandra Levine, senior attorney with the Conservation Law Foundation in Vermont, said continuing to operate after March 21 would violate Vermont law and a memorandum of understanding signed by Entergy in 2002 agreeing that the plant could only operate up to March 21 without additional approval from the board.
“Entergy continues to seek approval to violate Vermont law,” Levine said. “They remain bound by the Public Service Board’s orders. They will need the board’s approval for continued operation. The district court’s order was clear that only legislative action is pre-empted.”
Sarah Hofmann, deputy commissioner of the Department of Public Service, said the department agrees the plant can continue to operate under state law but that Entergy has not lived up to its commitments.
“If they are going to be allowed to run on expired CPGs (certificates of public good), then they have to live up to all the commitments in those CPGs,” she said.
A spokesman for Entergy said the company would not offer additional comment on its filing.