Vermont Yankee on the banks of the Connecticut River

The state Department of Public Service is scrutinizing recent actions by Entergy Corp.

The department is questioning whether the 20-year license extension the Nuclear Regulatory Commission issued the company in 2011 is valid.

State officials say Entergy doesn’t have a Clean Water Act permit.

Sarah Hofmann, deputy commissioner of the Department of Public Service, said the federal NRC should have required the company to get certification from the state that the plant would not violate state water quality standards.

“Our allegation is that they needed to have that in order to get their license renewed,” Hofmann said. “Entergy’s claim is that they are still operating under their old one.”

Elizabeth Miller, commissioner of the Department of Public Service, will be presenting oral arguments to the U.S. Court of Appeals in Washington on Wednesday.

Vermont Yankee was originally scheduled to shut down in March of this year. Entergy continues to run the 40-year-old plant because it has the NRC license and a federal judge ruled in January that the state doesn’t have the authority to pre-empt federal law.

Entergy bought the plant in 2002, and applied for a new license in 2006. In 2010, the Vermont Senate voted against allowing the Public Service Board to issue a new license. That decision was based on a 2006 law allowing legislative approval. Earlier this year federal district court Judge Garvan Murtha found the state law unconstitutional, ruling that it was pre-empted by federal statutes. The Vermont Attorney General has appealed that decision.

Entergy recently requested approval for a certificate of public good from the Vermont Public Service Board.

A lot hangs in the balance in the legal arena — and with Vermont Yankee’s financial situation.

A decision in federal court could affect the outcome of the Public Service Board proceeding, and what the D.C. Circuit decides could affect the plant’s federal permit.

It appears that Entergy is also trying to spin off its transmission business and merge it with a separate company called ITC holdings. According to an Entergy spokesman, however, this will likely not affect Vermont at all.

On April 30, ISO-New England, the region’s electric grid operator, accepted a bid by Entergy to de-list the Vernon plant from its 2015-16 “capacity commitment period.” ISO-New England rejected previous requests from Vermont Yankee to be removed from the futures market.

But in its most recent filing with the Federal Energy Regulatory Commission, it stated “the ISO determined that Vermont Yankee is not needed for reliability for the 2015-16 Capacity Commitment Period.”

ISO New England stated that was because it expects transmission upgrades and other resources to be in place by that time.

The one thing that does appear certain is that the plant will continue operating while the legal and regulatory proceedings are pending.

Public Service Board decision in 2013, at the earliest

Wrangling over Vermont Yankee’s new permit will last late into 2013, at least, under a calendar set by the Public Service Board.

For some parties in the Public Service Board docket, the schedule set by the board drags it out too far.

“It’s taking too long,” said Sandra Levine, senior attorney for the Conservation Law Foundation in Vermont. “This case could easily be decided in less than a year and a half. Entergy is dragging its feet.”

The amended schedule sets a deadline for intervenors at June 18. Final filings are due Aug. 26, 2013, hence the year and a half timeline.

Entergy requested the later time line, telling the board it could not prepare testimony until June 29. The Department of Public Service, which represents Vermont ratepayers in front of the board, asked for a May 15 filing date.

CLF’s proposed schedule, which the board rejected, advanced hearings by four months.

The board will hold public hearings on Nov. 5 in Vernon and another on Nov. 19 via Vermont Interactive Television.

Levine said the longer the process takes, the longer Vermonters will have to wait to see the plant close.

The parallel litigation in federal court over the Vermont laws caused the board to start over and create a new record to avoid using “preempted” materials in the record.

Not all the intervenors in the docket were as concerned about the lengthy schedule.

“This is a very long process,” said Jared Margolis, an attorney representing the New England Coalition, a group that wants to see the plant close. “We’re starting from scratch.”

He said the longer schedule will allow the board to make an informed decision based on a valid record.

The parties will file their first round of written testimony June 29.

The continuing dispute has proved problematic for Entergy, the state and environmentalists alike.

For Entergy, ongoing litigation with Vermont, prompted the company to file an “impairment evaluation” addressing the uncertainty of the plant’s continued operation on the value of the company.

The company has been filing such reports since 2010 about the plant’s potential value in the future.

In an April 26 earnings conference call, Entergy CFO Leo Denault said the estimated value of the plant, as opposed to what the company’s books said, resulted in a $356 million pre-tax “impairment charge.”

The dip in stock value reported by the company was directly related to the plant’s uncertain continued operation.

“[T]he impairment derives from the unique legal and State regulatory processes surrounding Vermont Yankee, which make it uncertain that the plant will operate until the license expires in 2032,” Denault said. “Absent this uncertainty, the evaluation for impairment would not have been required.”

VTDigger

Rep. Oliver Olsen. VTD/Josh Larkin

In somewhat of a tongue-in-cheek maneuver, Rep. Oliver Olsen, R-Jamaica, proposed a resolution that would prevent the state from using a law enacted last year that allows it to recover legal costs from litigation with a utility.

The provision was targeted at Entergy, the company that sued the state over a law that effectively prohibited the continued operation of Vermont Yankee.

Now that Gov. Peter Shumlin says the Legislature should not interfere with an open Public Service Board docket concerning the merger of electric utilities Green Mountain Power and Central Vermont Public Service Corp., Olsen says, the state shouldn’t try to meddle in a court proceeding either.

Olsen said the proposal to require a court to pay back the state for legal fees, “seemed outside our jurisdiction for some of us.”

“You’re obviously interfering with an active docket before the judiciary,” he said.

Now, Olsen said, he is concerned that the Shumlin administration is using basically the same argument to tell lawmakers they should not direct the Public Service Board to give ratepayers $21 million in a cash refund for a bailout of the utilities in the early 2000s.

“The resolution is a little tongue in cheek,” Olsen said. “It sort of highlights the contradictory statements and actions of the governor’s administration.”

He said he doesn’t really expect the resolution to go anywhere, but he hopes to at least highlight the irony.

“If we’re going to take position that the Legislature should not interfere with open dockets, we need to be consistent about it,” Olsen said. “We can’t pick and choose what we want the Legislature to interfere with.”

At his weekly press conference, Shumlin defended his position that it is unwise for the Legislature to intervene in the Public Service Board docket. He said the case with Entergy is different.

“The role of the Legislature with Entergy is different from all other regulated cases because of precedent that they couldn’t build the plant without an affirmative vote of the Legislature,” he said. “Also because of Act 160, signed by Governor Douglas, that required affirmative vote before the Public Service Board could act.”

In 2011, Vermont Yankee owner Entergy sued the state over the law that required legislative approval before the Public Service Board could issue it a new license.

Shumlin said the Legislature should let the merger proceeding play out.

“If we believe in the Public Service Board process, which I do, we should let them do their work,” he said. “In terms of Entergy, because the Legislature was required by law to be involved with the question of how to continue to operate, Entergy is the exception to the rule because of precedent set when the plant was built. It’s different from rate cases, mergers and other business that comes before the board.”

Olsen was one of four representatives to testify in the House Committee on Commerce and Economic Development about the possibility of the Legislature directing the Public Service Board or Department of Public Service to require utilities to pay ratepayers the $21 million in cash. An agreement between the Department of Public Service and Green Mountain Power would instead direct the $21 million to an efficiency fund, with the utilities recovering the money through rates.

Lawmakers tried to get such an amendment to the floor, but efforts failed when they attempted to attach it to this year’s energy bill. Another target, a Public Service Board housekeeping bill, has been stalled in Senate Appropriations. That bill was returned to the Commerce committee last week in order to have testimony on the merger issue.

VTDigger

Rep. Oliver Olsen, photo by Josh Larkin.

In somewhat of a tongue-in-cheek maneuver, Rep. Oliver Olsen, R-Jamaica, proposed a resolution that would prevent the state from using a law enacted last year that allows it to recover legal costs from litigation with a utility.

The provision, which came to the Legislature late last session, was targeted at Entergy, the company that sued the state over a law that effectively prohibited the continued operation of Vermont Yankee.

Now that Gov. Peter Shumlin says the Legislature should not interfere with an open Public Service Board docket concerning the merger of electric utilities Green Mountain Power and Central Vermont Public Service Corp., Olsen says, the state shouldn’t try to meddle in a court proceeding either.

Olsen said the proposal to require a court to pay back the state for legal fees, “seemed outside our jurisdiction for some of us.”

“You’re obviously interfering with an active docket before the judiciary,” he said.

Now, Olsen said, he is concerned that the Shumlin administration is using basically the same argument to tell lawmakers they should not direct the Public Service Board to give ratepayers $21 million in a cash refund for their bailing out the utilities in the early 2000s.

“The resolution is a little tongue in cheek,” Olsen said. “It sort of highlights the contradictory statements and actions of the governor’s administration.”

He said he doesn’t really expect it to go anywhere, but he hopes to at least shed light on some irony.

“If we’re going to take position that the Legislature should not interfere with open dockets, we need to be consistent about it,” Olsen said. “We can’t pick and choose what we want the Legislature to interfere with.”

At his weekly press conference, Shumlin defended his position that it is unwise for the Legislature to intervene in the Public Service Board docket. He said the case with Entergy is different.

“The role of the Legislature with Entergy is different from all other regulated cases because of precedent that they couldn’t build the plant without an affirmative vote of the Legislature,” he said. “Also because of Act 160, signed by Governor Douglas, that required affirmative vote before the Public Service Board could act.”

In 2011, Entergy, Vermont Yankee’s owner, sued the state over the law that required legislative approval before the Public Service Board could issue it a new license.

Shumlin said Entergy is in a unique situation. He said lawmakers shouldn’t compare the merger proceeding to the Entergy case.

He said the Legislature should let the merger proceeding play out.

“If we believe in the Public Service Board process, which I do, we should let them do their work,” he said. “In terms of Entergy, because the Legislature was required by law to be involved with the question of how to continue to operate, Entergy is the exception to the rule because of precedent set when the plant was built. It’s different from rate cases, mergers and other business that comes before the board.”

Olsen was one of four representatives to testify in the House Committee on Commerce and Economic Development about the possibility of the Legislature directing the Public Service Board or Department of Public Service to require utilities to pay ratepayers $21 million in cash as a result of a “windfall” they got when they were near bankruptcy. An agreement between the Department of Public Service and Green Mountain Power would direct $21 million to an efficiency fund instead, with the utilities recovering the money through rates.

Lawmakers tried to get such an amendment to the floor, but efforts failed when they tried to attach it to this year’s energy bill. Another target, a Public Service Board housekeeping bill, has been stalled in Senate Appropriations. That bill was returned to the Commerce committee last week in order to have testimony on the merger issue.

VTDigger

In case you missed it, our intrepid reporter and videographer, Greg Guma, caught it on video.

Audio of Saturday Yankee protests

According to the Associated Press, more than 1,000 protesters converged on the Brattleboro town green for a second mass protest of Entergy’s continued operation of Vermont Yankee, a 40-year-old plant on the banks of the Connecticut River that was originally slated to be shut down on March 21. The plant remains open because of a dispute over a license extension. Entergy Corp. obtained an extension from the Nuclear Regulatory Commission, and it is waiting to hear whether the Vermont Public Service Board will also approve the relicensure for a 20-year period. Meanwhile, Entergy has sued the state (the governor is named as a defendant) over a legislative decision to block continued operation of the plant.

On Saturday, Massachusetts State Sen. Paul Mark, U.S. Sen. Bernie Sanders, I-Vt., Vermont Attorney General Bill Sorrell and Gov. Peter Shumlin joined the protest and called for the shutdown of the plant.

Here’s what they had to say (many thanks to Northampton Media for the professional audio recordings):

Rep. Paul Mark

Sen. Bernie Sanders

Attorney General Bill Sorrell

Gov. Peter Shumlin

VTDigger

Larry Smith, a spokesman for Vermont Yankee, said the plant was at 86 percent as of Thursday morning and on its way back to full power.

Smith said technicians went into the plant’s condenser Tuesday night to fix five tube leaks in the number four water box. The condenser turns the steam used to turn the plant’s turbines back into water. Smith said the issue with the condenser does not affect the plant’s safety.

“The condenser is on the non-nuclear side of the plant, so it’s not safety related,” he said.

Smith said there are around 22,000 tubes in the condenser. He said minor leaks in a few tubes is not uncommon for a steam condenser plant like Vermont Yankee.

He said engineers were able to “button up the condenser” to fire back up to full power.

The condenser is original to the 40-year-old plant. It is made up of two sections, each the size of a three-story house. Each section has thousands of metal tubes inside it that carry river water, over time the tubing has worn thin.

Last November, during a planned refueling outage, plant workers applied a protective coating — an epoxy or plastic — to the tubing in the condenser in an effort to reduce wear and tear on the metal and extend the life of the condenser.

Smith said Vermont Yankee is working to remove some of the epoxy coating which makes the system run less efficiently.

According to the Vermont Department of Public Service, the condenser problems could pose a big reliability problem for the plant as it moves forward.

Sarah Hofmann, deputy commissioner of the department, said other states may be reluctant to enter into contracts with Entergy Corp., the plant’s owner, given the problem.

“Vermont doesn’t have a power purchase agreement with Entergy any longer, but I would guess that other out-of-state utilities might think twice before entering a PPA with a plant that is struggling like Entergy is at this time with its condenser and thus its ability to generate consistent output,” Hofmann said in an email.

The plant had to reduce capacity last month to work on its condenser.

The New England Coalition, a group that advocates for the plant’s shutdown, said the recent issue reflects a lingering problem that may affect the plant’s continued ability to operate.

Ray Shadis, technical adviser to the New England Coalition, said having to replace the condenser “could be the straw that broke the camel’s back financially.”

He said the plant could have additional leaks that will not allow it to continue to ascend back to full power. Shadis said Entergy’s earnings call at the beginning of the year indicated that the plant was struggling to make money on the plant.

The coalition is an intervenor in the plant’s relicensing proceeding before the Vermont Public Service Board.

“One of the issues we will be raising before the Public Service Board is that the financial viability of the plant is very much in question,” Shadis said.

Earlier this year a federal judge ruled in favor of Entergy, finding Vermont laws requiring legislative approval for the plant to continue operating were unconstitutional since they were grounded in safety concerns. Under federal law, regulation of radiological safety is under the exclusive purview of the federal government.

Both the state and Entergy have appealed that decision. The plant has a valid license extension from the federal Nuclear Regulatory Commission, but it is still awaiting approval from state regulators to continue operating. The Public Service Board has asked parties to submit filings regarding the merits of the plant’s continued operation. They can address non-preempted issues like financial viability and reliability.

At the end of March, Entergy sent a letter to the Nuclear Regulatory Commission stating that it did not intend to shutter Vermont Yankee in the next five years.

Under federal regulations, plants that are scheduled to close within five years must submit a report on the status of their decommissioning funds. Entergy told the Nuclear Regulatory Commission that since it has received a new federal license, it would not submit a report this year.

“The licensee does not have plans to close Vermont Yankee within 5 years,” the letter states. “Accordingly, Entergy Nuclear Operations, Inc. is not including herewith a report pursuant to [federal regulations] for Vermont Yankee.”

Entergy is also at odds with the Department of Public Service over payments to the state Clean Energy Development Fund, which helps fund renewable energy projects. Under two agreements that expired March 21, the company agreed to make payments to the state.

The department agrees that the plant can continue operating on its old license while the Public Service Board makes a decision but that it must continue payments. This week, Entergy filed a letter with the Public Service Board stating that it would put the scheduled payments in escrow until it gets assurance from the board it can continue operating.

Meanwhile the Legislature is considering increasing the tax on the plant by $6 million to replace the payments that Entergy has been making to the state. Entergy’s filing states that it will pay the money to the state only if it receives assurance it can continue operating Vermont Yankee and the state does not levy the tax.

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The dry cask storage units outside of the Vermont Yankee plant. Photo by Laura Frohn, News21.org

The Vermont Department of Public Service is not convinced that the company that owns the Vermont Yankee nuclear power station will live up to its obligations.

The plant, which is owned by Entergy Corp., is currently operating on an expired state permit while the Vermont Public Service Board considers approving a new license for it.

Meanwhile both the state and Entergy have appealed a federal court decision finding a law requiring legislative approval before the plant could get a new license was unconstitutional.

The Department of Public Service, which represents ratepayers before the board, has taken the position that the plant can continue to operate under state law while the docket is ongoing, but that it must continue to keep obligations like making payments to the Clean Energy Development Fund.

On April 3, attorneys for Entergy filed a one-page letter with the board stating that it agreed with the department.

The company’s statement said it “must comply with the conditions in the existing certificates of public good that the Department lists at pages 7-9 of its cross-motion.”

These included payments to the fund, which subsidizes renewable energy resources.

But according to a filing by the department Monday, Entergy has not made its quarterly payment of $625,000, which was due on April 1.

Last week, a spokesman for Entergy told VTDigger.org that a story stating the company’s filing meant Entergy would continue to make payments to the fund “got it wrong.”

The department’s filing states that “it is clear that Entergy is attempting to limit the concessions it made in its April 3 response.”

The department said in its filing that Entergy will likely argue that it does not need to fulfill its obligation to pay into the state fund because the memorandums of understanding that are incorporated into the company’s license have expiration dates.

That argument, the department claims, doesn’t fly. In essence, if the plant is operating on an expired license, the expiration dates on the obligations in the license don’t expire either.

“Entergy cannot have it both ways,” its filing states. “While its operations expiration date is
suspended, so too are all dates affecting Entergy’s obligations under the CPGs.”

The Clean Energy Development Fund was established in 2005 by the state Legislature. Money raised through agreements with Entergy has funded the programs, which the Department of Public Service administers, bringing in about $6 million a year. Those agreements expired March 21 along with the plant’s operating license from the state. A bill pending in the Vermont Senate would replace those funds with a $6 million tax on the plant. Under that proposal, instead of all the money going to the Clean Energy Development Fund, it would be split among the CEDF, the education fund and a fund that would help Windham County plan for the plant’s closure.

In response, also Monday afternoon, Entergy fired back a letter to the board saying it would post the payments with a third-party escrow agent and only pay the money to the state fund if the board makes a ruling that it can continue to operate either temporarily or permanently under a new permit.

In its letter, Entergy said that given the uncertainty with the pending tax bill and whether state law allows the plant to continue operating with its expired license, it would not give the funds to the state immediately.

The letter states that the company would not pay money into the fund if the Legislature passed a bill that would increase the tax to replace the Clean Energy Development Fund money. Entergy attorneys said the company will provide the agreement to the department by Wednesday. It plans to put the $625,000 that was due on April 1 into an escrow account rather than give it directly to the state.

The Public Service Board has yet to rule on whether a provision in Vermont law allows the plant to legally operate during the relicensing proceeding. The plant has continued to operate, although the power it produces is sent out of state since contracts with state utilities expired March 21.

Despite approval from the Nuclear Regulatory Commission and a favorable ruling in Vermont federal district court, the plant’s continued operation is still in flux given the pending cases in the Second Circuit Court of Appeals and with the Public Service Board.

Entergy is also asking for more than $4.6 million in attorney’s fees for the federal court decision.

Meanwhile, the state’s two largest utilities are suing Entergy for $6.6 million over 2007 and 2008 cooling water tower collapses at the plant that forced them to buy power elsewhere.

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Bill Driscoll, executive director of the Associated Industries of Vermont. Photo by Anne Galloway

Business groups took a stand Wednesday against a provision in a miscellaneous tax bill that would require Vermont Yankee to pay $6 million in taxes to fund education, the Clean Energy Development Fund and a fund to help Windham County plan for the plant’s closure.

The $6 million tax increase was part of the miscellaneous tax bill, which passed the House on a voice vote.

At a press conference on Wednesday, the Vermont Energy Partnership and Associated Industries of Vermont said the tax was “arbitrary.”

Members of the House committee say it is a net-zero increase on Vermont Yankee since it replaces obligations of a similar amount of money that the plant has been paying into the Clean Energy Development Fund, which funds renewable energy among other things. Those obligations expired March 21 when the state’s license expired.

Guy Page, communications director for the Vermont Energy Partnership, a coalition of businesses that supports the nuclear plant’s continued operation led by Entergy Corp., the owner of Vermont Yankee, said the miscellaneous tax bill would add $6 million to an existing $5 million generating tax. He said the tax passed the House with too little debate.

“This is an arbitrary tax increase,” Page said. “It may even be punitive in nature. This sends out a very troubling signal about doing business in Vermont.”

William Driscoll, vice president of Associated Industries of Vermont, which represents manufacturing businesses, said the tax is going after a captive industry in Vermont that cannot move its business elsewhere.

Driscoll said the tax was supposed to end March 21 even if the plant continued to operate.

“To very quickly and with relatively little debate or consideration propose a new tax is poor policy,” Driscoll said.

He said doing so could hurt the state’s reputation as a place to do business.

Bob Stannard, a lobbyist for Vermont Citizens Action Network, a group opposed to the plant, argues the tax does not go far enough.

“The fact of the matter is that Vermont is currently giving them a $15 million gift by allowing them to heat the river and not use their cooling tower,” Stannard said. “We should demand that they start using cooling towers, stop heating our river.”

Stannard said the state should charge Entergy Corp. another $15 million in addition to the $11 million in generating taxes in light of the fact that the company has sued the state in federal court and not lived up to its promises.

Currently the plant has a waiver under the Clean Water Act to discharge heated water into the Connecticut River and bypass its cooling towers.

The miscellaneous tax bill that passed the house with little debate is now in the Senate Committee on Finance, which has asked the Vermont attorney general’s office to look into the propriety of the tax, which replaces monies that were required as part of state agreements with Entergy.

Deputy Attorney General Janet Murnane said the Attorney General’s Office expects to offer testimony next week but could not speak to the specifics of the bill.

Michael Burns, a spokesman for Entergy, said the company is opposed to the tax.

Meanwhile, a proceeding before the Vermont Public Service Board to consider a license renewal for the nuclear plant continues. And in the Second Circuit Court of Appeals, both the state and Entergy have appealed a legal judgment that the state Legislature’s attempts to effectively veto a new license for the plant were unconstitutional.

The Vermont Department of Public Service, which represents ratepayers before the board, has taken the position that Vermont law allows the plant to continue operating while the re-licensing process goes on.

Elizabeth Miller, the commissioner of the department, said this means the plant must continue its obligations under its permit, which include making payments to the Clean Energy Development Fund.

On Tuesday, attorneys for Entergy filed a letter with the Public Service Board stating that the company agrees with the department that state law allows it to operate during the re-licensing process and that the company must comply with its obligations.

Burns said the filing speaks for itself, and an article in VTDigger.org stating the company agreed to continue making payments to the fund “got it wrong.”

Miller said while the plant continues to operate, it must live up to its obligations, including making payments into the Clean Energy Development Fund.

“We had sought to ensure that so long as the expiration date for operation was suspended so too would the expiration of any obligation by Entergy be suspended,” Miller said. “They weren’t supposed to operate past March 21 without a new CPG. They’re still operating, therefore the conditions that apply to them should still be in place.”

VTDigger

Vermont Yankee on the banks of the Connecticut River. Photo by Deborah Lazar/Special to The Commons

In a filing Tuesday afternoon with the Vermont Public Service Board, Entergy Corp. agreed to comply with the requirements in its existing license while the board considers whether to grant the company a new certificate of public good to operate the Vermont Yankee nuclear power plant.

In a one-paragraph letter to the board, the company said it agreed with the Department of Public Service that Vermont law allows the plant to continue operating while the proceeding continues.

The plant’s state license expired March 21, but it continues to operate, with all of the power generated being sold out of state.

The Department of Public Service, which represents ratepayers before the Public Service Board, has pushed for the company to continue making payments to the Clean Energy Development Fund, which funds renewable energy projects. In its filing, Entergy agreed to continue making payments to the state in the interim.

The filing states: “Entergy VY agrees with the Department that 3 V.S.A. § 814(b) applies and that, pursuant to that provision-which keeps intact Entergy’s existing certificates of public good pending the Board’s determination of Entergy VY’s petition for a certificate of public good authorizing post-March 21, 2012 operations-Entergy VY must comply with the conditions in the existing certificates of public good that the Department lists at pages 7-9 of its cross-motion.”

Those conditions include paying into the fund, which has received around $6 million each year from Entergy through a generating tax.

The tax expired on March 21 along with Entergy’s permit.

A proposal in a miscellaneous tax bill in the House aimed to replace that money with a new tax on Entergy. Under the House proposal, $3 million would go to the education fund, $1.5 million to the Clean Energy Development Fund and $1.5 million to a special fund to help the Windham County region plan for Vermont Yankee’s closure if that happens.

Entergy will also have to continue producing reports about the status of Vermont Yankee’s decommissioning fund.

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Police arrest the first protesters to cross the line onto Entergy property in Brattleboro. Photo by Alan Panebaker

The show goes on at Vermont Yankee, and not just the power plant.

More than 1,000 people turned up in Brattleboro to march the 3.5 miles from the town common to Entergy’s offices. Dozens trespassed on the company’s property and were arrested.

Thursday was a monumental day for residents of the tri-state area near the Vermont Yankee Nuclear Power Plant.

Forty years after the plant opened, its license expired Wednesday, but the plant continued to operate pursuant to a federal court order.

Longtime opponents of nuclear power, like Scott Nielsen from Quaker City, N.H., converged on Brattleboro’s town green to create a hoopla of music, colors and civil disobedience.

Nielsen, 82, donned a sign reading “THE 1% OWN ENTERGY CONGRESS FEDERAL COURTS NRC.” Next to him, Jenny Wright wore a sign reading “BUT THEY DON’T OWN US FIGHT LIKE HELL.”

Police later arrested the two when they entered Entergy’s property without permission.

“I’m opposed to Vermont Yankee,” Nielsen said. “I think it’s dangerous.”

He said he is concerned with the amount of deadly radiation produced by Chernobyl and Fukushima.

“I don’t want it to happen here,” he said.

Nielsen said he was a strong supporter of nuclear power until the 1970s, when, he said, he learned of the dangers it poses.

He lives within the 50-mile radius of the plant but, Nielsen said, “I’m 82. I’m concerned for my grandchildren.”

A single-file line stretched for what looked like a mile and a band led the march to Entergy’s offices, where law enforcement awaited.

Signs with messages like “time’s up” and “Entergy corporate greed” spotted the ant-like line along the road. The spectacle made its way through town before converging on the corporate offices where protesters chanted “shut it down” and some crossed the line to awaiting police.

The plant’s continued operation sets a precedent nationwide in the nuclear as well as in the legal realm.

Earlier this year, federal Judge J. Garvan Murtha issued a ruling finding two Vermont laws requiring legislative approval for the plant to continue operating were unconstitutional as pre-empted by federal law.

The plant hasn’t received a new license to replace the one that expired this Wednesday. The Vermont Public Service Board has yet to issue an order on the new license and no one has ordered the plant to cease operating in the interim.

Meanwhile the state and Entergy have appealed Judge Murtha’s decision to the Second Circuit Court of Appeals. Legal experts say the case could have national ramifications.

The plant’s continued operation on an expired license is a first of its kind also, according to the Union of Concerned Scientists.

Dave Lochbaum, director of the Nuclear Safety Project for the organization, said this is the first time a plant has expired and it has continued to operate “on grace.”

Brad Hartley of Ferrisburg holds a sign protesting Vermont Yankee's continued operation outside Entergy's offices. Photo by Alan Panebaker

Lochbaum said in the 1980s the Nuclear Regulatory Commission would issue provisional licenses that allowed plants to operate at partial capacity. Plants have ramped up to full capacity on these types of licenses a handful of times, but none has kept operating after its license expiration date without a new permit in hand.

Entergy does have a license from the Nuclear Regulatory Commission, but its state license is expired. The company argues state law allows it to operate while the Public Service Board proceeding to approve a new license goes on.

For some Vermonters, like Court Dorsey of the SAGE Alliance, say the legal struggle has gone nowhere, and it is time for Vermonters to take to the streets.

“The legal system is demonstrating its unwillingness or inability to stop the continued operation of this plant,” Dorsey said.

The alliance led trainings for people to learn to engage in civil disobedience this week.

“There are people who feel very strongly that Entergy is a rogue corporation, and they need to exercise their citizen power to stand in the way of the continued operation of this plant,” he said. “They’re doing that by going to the headquarters and placing themselves on that property and telling Entergy that they need to leave and that their time is up.”

For some, like Lisa Winter of Wendell, Mass., the protest was a homecoming of sorts.

Winter was arrested more than 30 years ago at the plant in Vernon in protest.

She opted out of getting arrested this time given the family responsibilities that she’s acquired in the past 30 years, she said. But her fierce opposition to the plant remains.

“The technology exists to not have to use it anymore,” she said of nuclear power. “Given how it is so dangerous. It’s kind of a no-brainer.”

Winter said she was disappointed that Gov. Peter Shumlin did not come to the protests.

The governor did issue a statement.

“I am very supportive of the peaceful protesters gathered today in Brattleboro to express their – and my – frustration that this aging plant remains open after its agreed-upon license has expired,” it read. “We’re doing all we can so that Vermont can move on from this old plant and move towards an energy future that sends Entergy Louisiana back to Louisiana.”

One member of the Legislature, Sen. Phillip Baruth of Burlington, did show up — and got arrested.

Baruth said he felt it was the right thing to do.

“I swore an oath to my constituents and to the state to protect the safety of Vermont,” he said. “The federal government is of the opinion that I should sit down and be quiet, and I’m not going to do that.”

As of Thursday afternoon, police were taking the 163 arrestees to jail in Brattleboro.

Capt. Ray Keefe, incident commander for the plant for the Vermont State Police, said Brattleboro Police handled the majority of the arrests.

“The Brattleboro Police did a great job, and the protesters handled themselves very well,” Keefe said.

While the protesters made noise and created a spectacle, subtle signs lined many lawns in Brattleboro supporting the plant, which provides 650 jobs directly and around 1,000 including contractors.

And a few groups held signs saying “VY 4 VT” as the parade marched by.

Gwen Shaclumis, an attorney from Brattleboro, stood across the street from the common while the protest ramped up.

Shaclumis said opponents of the plant neglect the fact that it is a crucial part of the regional economy.

“Vermont Yankee’s always been good to Windham County,” she said. “Entergy is very generous with donations to nonprofits. They donate hundreds of thousands of dollars. When they go, who’s going to replace that? No one talks about it.”

Shaclumis said, while the opponents of the plant’s operation make a lot of noise, she thinks most people support it because it’s a big income producer. As for protesters comparing the plant the the Fukushima Daiichi plant in Japan that had a meltdown, “there’s no tsunami danger here,” she said.

Nancy Doyle, Shaclumis’ legal assistant, said she supports keeping the plant open as well.

Doyle grew up 45 minutes south of Brattleboro in Rowe, Mass.

When the Yankee Rowe nuclear plant shuttered in the 1990s, many of the businesses in town left with it, she said.

“The last big business in the town where I lived was a nuclear power plant, and it closed,” she said. “People packed up and left.”

Doyle said she is concerned the same thing would happen to the region surrounding Vermont Yankee.

The Vermont Energy Partnership, a coalition that supports keeping the plant operating, issued a statement expressing economic concerns over the plant’s closure.

A statement by Brad Ferland, president of the partnership, said, “Last week, business and community leaders in Windham County revealed the results of a study on the effects of shutting down the Vermont Yankee power plant in Vernon, the state’s largest baseload manufacturer of electricity. The findings validated what many in Southern Vermont already feared: Vermont Yankee’s closure would likely result in the loss of more than 1,000 jobs, a 15% decrease in residential property values, and a massive hit to the community’s safety net.”

A spokesman for Vermont Yankee declined to comment on the protests Thursday.

Just what becomes of the plant, for now, is up to the Public Service Board and the federal courts, neither of which has stated when they will rule on the pending proceedings.

Protest on March 22. Photo by Alan Panebaker

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Rep. Tony Klein, chair of the House Committee on Natural Resources and Energy, tried to put a positive spin on what he described as an uphill battle for the state.

“The happy thing I can say is that we have been as successful as we could in terms of having a state speak for itself and determine its own future when it comes to issues like this. So we have done our job,” Klein said to the group of about 30 in the Cedar Creek Room in the Statehouse.

“Was there disappointment? Yes. There was disappointment. Was there surprise? No. There was no surprise that the federal courts would rule in our favor. I never entertained real hope that that was going to occur.”

The Public Service Board will be the likely focus of activists’ future efforts because its approval is necessary for the plant’s continued operation, though its corporate owner Entergy won the most recent round of court battles in the state’s attempts to shut it down.

Tonight the plant’s certificate of public good expires, and it will be in legal limbo if it continues to operate. However, federal Judge J. Garvan Murtha said Vermont Yankee may continue operations as the PSB deliberates on whether to renew its license for the next 20 years.

Jamey Fidel, general counsel and forest and biodiversity program director at the Vermont Natural Resource Council, said the VNRC is aiming to reopen the certification proceeding because of new evidence of groundwater contamination and thermal discharge leaks into the Connecticut River.

Chris Williams, a member of Vermont Citizens Action Network, said another hope for nuclear-free Vermont could lie in Entergy’s board of directors if it found the costs too high to continue operating Vermont Yankee.

“Most of the reactors that have been retired in this country have been retired by the directors of the corporations, and they’ve been retired for the most part for economic reasons,” Williams said.

Williams estimated almost half a billion dollars in costs to keep the Vermont Yankee reactor running, which includes upgrading its condenser and emergency response systems, as well as the cost of its new license.

Ned Childs, a member of the anti-nuclear group New England Coalition, who took a more negative view of Entergy, said best bet would be if the regulatory and legal process were “allowed to proceed without excessive meddling from industry or corrupt regulators.”

“No one can argue that the public has been repeatedly misled, lied to, and extorted by a bullying industry … This is not only a David and Goliath story; it is really the story of Faust, where a deal was made with the devil on all of our behalfs while an innocent nation in fact slept.”

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