Entergy may be closing Vermont Yankee, but litigation goes on

Vermont Yankee, photo from the Nuclear Regulatory Commission

Vermont Yankee, photo from the Nuclear Regulatory Commission

Entergy Corp. will grant the wishes of many Vermont officials by closing the 41-year-old Vermont Yankee nuclear plant in 2014, but the company’s relationship with the state is far from over.

The Louisiana-based company and the state are embroiled in four separate lawsuits, and the specifics of those cases shifted last month when Entergy announced the plant’s upcoming shutdown.

The first case is Entergy’s application in front of the Vermont Public Service Board for a new operating license, called a certificate of public good. The second case is an Entergy appeal in federal court of the state’s generation tax. The third lawsuit is Entergy’s appeal in Vermont Supreme Court of a Public Service Board decision. In the fourth case, Vermont Attorney General Bill Sorrell must decide within a 90-day period — which began Aug. 14 — whether to appeal a U.S. Court of Appeals decision that the Vermont Legislature is federally preempted from shutting down the plant.

“There are a lot of Entergy balls in the air right now,” Sorrell said.

Certificate of Public Good

For more than a year, Entergy sought a certificate of public good from the Public Service Board to operate Vermont Yankee until March 21, 2032.

The plant’s initial 40-year operating license expired March 21, 2012, and the U.S. Nuclear Regulatory Commission extended the plant’s federal license to operate for another 20 years.

But on Aug. 27, Entergy announced that it would close the plant before the end of the fourth quarter in 2014. That same day, Entergy resubmitted its application with the Public Service Board, seeking the authority to operate the plant through Dec. 31, 2014.

Vermont AG William Sorrell. VTD/Josh Larkin

Vermont AG William Sorrell. VTD/Josh Larkin

The Department of Public Service, which is charged with representing the interests of Vermonters in this case, has requested extra time to evaluate the amended application.

“We’ve asked the board for a 30-day extension to evaluate what the best process for moving forward is,” said Chris Recchia, commissioner of the department. “We’re pleased that there is a definite closure date proposed.”

Entergy executives said last month that they plan to close the plant at the end of its 18-month refueling cycle, which would be in early October 2014. The amended application, however, asks for the power to operate roughly three months after that date.

“We’re still evaluating that,” Recchia said of the discrepancy. “The fuel rods don’t stop working on the 18-month anniversary, so I’d imagine there will still be some ability to generate power.”

Energy generation tax

On the same day Entergy announced it was closing Vermont Yankee, the company went head-to-head with Sorrell in the U.S. Court of Appeals over a tax hike the Legislature approved in 2012.

The only tax Entergy pays to the state of Vermont is a generation tax based on a kilowatt-hour charge. In September 2012, Entergy sued the state for raising this tax to $0.0025, which is the same generation tax rate Connecticut applies.

The new tax raises roughly $12.5 million for the state, versus the roughly $5 million the former tax raised. In part, the increase was meant to make up for expired agreements with the state that funneled roughly $6 million into Vermont’s Clean Energy Development Fund each year.

Entergy sued the state for four constitutional violations. But, at the end of October, federal Judge Christina Reiss dismissed the case under the Tax Injunction Act, which prevents federal courts from intervening with the collection of state taxes.

While Entergy lawyers argued that the “tax” was a veil to “continue the expired contractual payments,” Reiss ruled that the tax was just that: a tax.

In the court of appeals, Entergy argued once again that the generation tax was not a tax and is unconstitutional.

“We’re just waiting for a decision from the appeals court, and it’s difficult to predict how long the court will take with it,” Sorrell said.

Vermont Supreme Court

When Entergy announced it was closing Vermont Yankee, the Supreme Court asked Entergy to brief the justices about why its appeal of a Public Service Board decision to open a new case for its initial permit application was not now moot, as the company had amended its application.

“The issue on appeal at the Supreme Court has to do with whether or not Vermont Yankee is operating in violation of a board order,” explained Geoff Commons, director of public advocacy for the Department of Public Service.

Entergy says that its appeal of the Public Service Board’s decision is not moot because its attorneys argue “a dispute thus remains as to whether the VY station’s operation … on each and every day since March 21, 2012, was lawful … as well as whether future operation through December 2014 is lawful.”

The Public Service Department says there is no such dispute. Its attorneys argue that the case was moot before the announcement of the plant closing and remains moot.

“No such controversy has ever existed,” Commons wrote in a brief to the justices. “The Public Service Board (“Board”) has never ordered Entergy to shut down the VY Station.”

The briefs were submitted last week, and the Supreme Court justices have not made a decision or set a date for a hearing on this matter. For more, read here .

Sorrell’s 90-day countdown

Almost two weeks before Entergy announced it was closing Vermont Yankee, three justices from the U.S. Court of Appeals ruled that the Vermont Legislature is federally preempted from shutting down the plant.

After U.S. District Court Judge J. Garvan Murtha made the same preemption ruling in January 2012, Attorney General Sorrell appealed to the higher court. In a 56-page decision, the appellate judges upheld the crux of Murtha’s ruling in favor of Entergy Corp., Vermont Yankee’s parent company.
The judges agreed that the Legislature was chiefly motivated by concerns of radiological safety when it created two laws aimed at regulating Vermont Yankee. Safety falls under the purview of the U.S. Nuclear Regulatory Commission — not state legislatures.

The judges did, however, reverse Murtha’s determination that the state had violated the Constitution’s dormant Commerce Clause when it attempted to work out an advantageous power pricing agreement for state entities. This ruling means that Vermonters do not have to foot the bill for Entergy’s legal expenses, which are estimated at more than $5 million.

Sorrell was unhappy with the federal preemption ruling, but was relieved by the court’s decision to relieve Vermont of the legal fee obligation. He now has roughly 60 days left in a 90-day window to appeal the decision to the U.S. Supreme Court.

Sorrell said that although Entergy is closing the plant, that doesn’t mean the decisions of the appellate justices are meaningless.

“Questions of decommissioning and the state’s authority and legislative authority related to decommissioning those are also brought very much to the floor,” he said.


Andrew Stein

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25 Comments on "Entergy may be closing Vermont Yankee, but litigation goes on"

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Bob Stannard
2 years 8 months ago

You know how the NRC describes each and every incident that occurs at a nuclear plant as a “lesson learned”?

Well, what Entergy is doing in Vermont should be a lesson learned for every state in this country where Entergy is doing business. Entergy is one very litigious corporation that will do anything and say anything to get its way.

When they are found out they turn on you like a rabid dog. Nice bunch of people. They have plenty of lawyers, too.

Mike Kerin
2 years 8 months ago

Bob, well said and true.

Elisabeth Hebert
2 years 8 months ago

Mr. Stannard is right. Only that it’s easier to deal with a rabid dog!

Coleman Dunnar
2 years 8 months ago

Even a good dog when it is backed in to a corner will come out snarling…. Keep blaming the victim Bob it serves you well……

Bob Stannard
2 years 8 months ago
Mr. Dunbar, let’s put your “victim” comment in perspective shall we? Vermont’s utilities sold the VY plant to Entergy in ’02, because they were perceived as the strongest buyer. They bought the plant with much fanfare and goodwill. Shortly after purchasing the plant they came before the legislature and asked if they could uprate the plant by 20% and make more money. The State welcomed them with open arms and they enjoyed a very good working relationship with the State. Then in ’07 they allowed their cooling tower to collapse, which rocked many people, but not then Gov. Jim Douglas,… Read more »
david klein
2 years 8 months ago

Decommissioning VT Yankee as soon as safely possible will provide years of work for skilled workers there. If Entergy cared about it’s workers, then they would do this rather than let the nuclear waste sit in open pools there for 60 years, when Entergy probably won’t even exist and the burden will fall on all Vermonters. Whatever the State can do to force Entergy to decommission VT Yankee by putting the nuclear waste in dry casks as soon as safely possible, I support.

Bob Stannard
2 years 8 months ago

You are correct.

Howard Shaffer
2 years 8 months ago

Typical anti nuke scare story!!!

After the last shutdown, the fuel currently in the reactor would be removed to the Fuel Pool in the normal fashion. After 5 years the heat generated by the fuel will have decreased to the point where it can be air-cooled. All the fuel in the pool will then be moved to dry casks.

The whole plant structure will then be mothballed, which means there will continue to be monitoring, maintenance, and security, for both the plant and the Dry Casks.

Governor Shumlin’s “rotting hulk” on the river bank is absurd political spin.

Bob Stannard
2 years 8 months ago

Howard, correct me if I’m wrong, but I seem to recall that the NRC has said that leaving fuel in the pool for an extended period of time was acceptable to them. I believe they’ve said it can stay in the pool for 60 years.

Howard Shaffer
2 years 8 months ago
Bob, Because the fuel CAN stay in the pool for 60 years, that does not mean that it WILL. It does not mean that the NRC will allow it when they approve the Decommissioning plan. To leave fuel in the pool for many years after 5, just for convenience, is ridiculous from a safety point of view. To my knowledge there is no study that proves fuel more than 5 years from operation can be air cooled in the pool, IF IT LOST ALL OR SOME OF THE WATER. So as long as there is fuel in the pool, a… Read more »
Bob Stannard
2 years 8 months ago
Well, I look forward to what the NRC will say now. Previously, not only have they indicated that they would allow fuel to stay in the pool for 60 years, they’ve encouraged it. You state that dry casks are a proven, safe storage. I will grant you that they are safer than keeping the fuel in an underprotected pool, but safe for how long Howard? 100 years from what I’ve heard. How long is the material inside the cask hot? A few hundred thousand years, I believe. Maybe I should go read Dr. James Conca’s new piece in which he… Read more »
Tom Clegg
2 years 8 months ago
David that sounds nice, but the truth is that Entergy will put the spent fuel in dry cask as soon as they can. If you leave it in the pool they have to pay to run the cooling in the pool, they have to pay operators to check the pool, they have to pay for maintenance on the pumps and motors. By going into dry cask the only thing they will have to pay for is security witch they will need any way and an HP to go by once a day to check Rad. levels. YES it is a… Read more »
Sally Shaw
2 years 8 months ago
Oh really, Howard? “After 5 years the heat generated by the fuel will have decreased to the point where it can be air-cooled. All the fuel in the pool will then be moved to dry casks. “…is that a promise, Howard? Sounds like the DOE promise back when the Vermont Yankee reactor was not yet built that they would remove all the spent fuel from the site after 5 years, the basis on which the VT Legislature voted to allow the operation of VY. Lies, lies, lies. VY needs to be decommissioned immediately, and all fuel placed in dry casks… Read more »
Howard Shaffer
2 years 8 months ago
Sally, You are confusing possibilities with promises. When I wrote the fuel would be moved from the fuel pool after 5 years, the minimum, I wrote of the engineering possibility. I’m in no position to promise future activity. Speaking of future activity, when VY was built and it was stated that the intent was to send the used fuel offsite after 5 years, that was the Federal Government’s intent. So it was true that it was the intent. There was fuel reprocessing going on at the time. Then the government changed its plans. That doesn’t make what was true at… Read more »
Howard Shaffer
2 years 8 months ago
Tom Clegg
2 years 8 months ago
Sally you have to be kidding me. First why is anyone washing clothes near the spent fuel pool. If this was true how would they know that the water was from the pool and not leaking from the washing machine? Operators make trips to inspect the spent fuel pool about every hour to every two hours. The spent fuel pool temputure is watched. So if you loss enough water the temp. goes up, It would have been noticed. The other alarm would have come from the radiation monitures. Pluse how come you have to go to a far out there… Read more »
Bob Stannard
2 years 8 months ago

I think the point that Sally is making is that the alarms that you say should’ve gone off, didn’t go off. It was only by chance that an employee happened to be in the building and caught it.

The Guardian is a highly respected paper. Granted, it’s not Fox News, but it’s pretty good.

Also, you might give some thought to turning on your spell check.

Tom Clegg
2 years 8 months ago
Bob I have read your blogs before. So I know where your coming from! Nice job to try to discredit me because I was not at a computer that I could use spell check easily. But now I am. If the Guardian is so highly respected, how come when I go on the web and type in Sizewell nuclear power plant leak in the spent fuel pool. The only reference to this incident is The Guardian and one other environmental paper,s site, which quotes the Guardian. If this incident really happened the way it was written I would think I… Read more »
Bob Stannard
2 years 8 months ago

I wasn’t there. You talk like you were there but you weren’t. Obviously the reporter found it credible.

Tom Clegg
2 years 8 months ago

Bob you are right I wasn’t there. With that being said I do have a nuclear background and therefor have a better idea than you on how a nuclear power plant works. if you have a nuclear engineering degree, been in the nuclear navy, or worked in a nuclear power plant I will have to apologize. But not till than

John Greenberg
2 years 8 months ago
” how come when I go on the web and type in Sizewell nuclear power plant leak in the spent fuel pool. The only reference to this incident is The Guardian and one other environmental paper,s site”? When I googled, I got a Wikipedia article with the following: “The power station was shut down on 31 December 2006.[3] The Nuclear Decommissioning Authority (NDA) is responsible for placing contracts for the decommissioning of Sizewell A, at a budgeted cost of £1.2 billion. On January 7, 2007 a contractor working on the decommissioning of the station noticed water leaking on to the… Read more »
Tom Clegg
2 years 8 months ago
John to make clearer what I meant. Yes you can find it on Wikipedia, but you have to go down to the about 4 sections before it was mentioned. How come when it happened if it was that bad non of the papers in this country ran it? Not the Times. If something happens in a nuclear power plant that bad it usually grabs the attention of all the media. Now as far as what is wrong with that article. Spent fuel pools in this country the suction and discharge for cooling the water are located at the top of… Read more »
david klein
2 years 8 months ago

Howard, it seems we agree on the matter of safety regarding leaving the spent fuel in open pools for more than 5 years, ( ie. 60 years ). Please let us know what you find out from the NRC Region 1 regarding this.
If the NRC does in fact allow or encourage the spent fuel to stay in pools for 60 years, what should we all do about it?

Howard Shaffer
2 years 8 months ago
All, I will let you know what I hear from Region I. I have met the Public Affairs staff at several local meetings. Have any of you tried to do this? The NRC statement about the Fuel Pool and Dry Casks being equally acceptable was in a DIFFERENT CONTEXT. That context was operating plants. Nuclear opponents were pushing for removal of all fuel more than 5 years from operation to be in Dry Casks. This is in a fully staffed plant. Some plants have had licenses renewed, and are on the road to operating 60 years. The statement makes sense… Read more »
Tom Clegg
2 years 8 months ago

David you are assuming something that is NOT going to happen. So you want to know as someone who has no clue about how a nuclear power plant works can do something to make a governing body that knows what they are doing (the NRC) when in your misguided opinion they are not doing their job what you can do? Why don’t you stand in front of their table at the next meeting. It worked good last time you did it. Also it made you look intelligent. BTW knock the anti nuke chip off your shoulder!

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