Court drawing from the first round of hearings. Deb Lazar/The Commons

Gov. Peter Shumlin said he has not decided whether the state will appeal a federal judge’s decision last week that allows Entergy Corp. to continue to operate Vermont Yankee without legislative approval.

“Obviously the decision from Judge Murtha is a disappointment,” Shumlin said. “We’re exploring all of our options. We’ll make a decision on the appeal within the timeframe allowed by the courts, and until we do I’ll be uncharacteristically quiet.”

The Vermont Attorney General, Bill Sorrell, has 30 days to file an appeal of Judge Garvan Murtha’s decision.

Shumlin commented on the case in his first press conference since the ruling was issued six days prior. Reporters peppered him with questions about how the state would proceed and whether the governor had faith in Sorrell’s ability to win an appeal given his painful defeat last week and two previous high profile cases that he lost before the U.S. Supreme Court — one regarding campaign contribution limits and another prohibiting datamining prescription drug information from doctors. In a report on Tuesday, Dave Gram of the Associated Press detailed how the losses have caused observers to raise doubts about Sorrell’s performance.

Does the governor have confidence in the attorney general, despite his string of defeats?

“This is an absolutely inappropriate time to question our attorney general,” Shumlin said. “They work very hard there and … I really don’t believe it’s healthy to second guess the attorney general. They argued forcefully for the state of Vermont.”

Should the state hire outside counsel to help the attorney general shape an appeal?

Shumlin said Sorrell had done so previously and “we’re certainly open to continuing that going forward. That’s a decision we’ll be making in the coming weeks.”

When asked if cost was a factor, Shumlin initially said it wasn’t his “first consideration.” So far, Sorrell said Entergy has spent more than his annual budget, or about $8 million, on the case, according to the report by Gram.

“The first consideration is how do you take a disappointing decision that doesn’t make a lot of sense and ensure that you proceed in a way that meets the objective of the state of Vermont,” Shumlin said.

The question came up again in a slightly different form. How much more would the state spend?

“Obviously we’re going to spend whatever we need to spend to ensure that Vermonters get a good decision,” Shumlin said. “I’ve read a lot about how much this is going to cost … This year alone, the attorney general brought in about $40 million from the attorney general’s office winning cases — (that’s) a lot more than we’ve spent on legal fees on any cases. So when we have this conversation about cost, it’s very important to know the attorney general’s office has done a good job of winning cases and bringing in more than they pay out.”

Though Shumlin is listed as a defendant in the Entergy lawsuit against the state of Vermont, the attorney general will ultimately decide whether to appeal.

“I have a very good relationship with the attorney general and I appreciate he’s consulted me at every turn in this case,” Shumlin said. “I don’t expect that to change going forward.”

As for whether the nuclear power plant in Vernon will be shut down any time soon, the governor said Judge Murtha’s decision means that Entergy will be able to continue to run Vermont Yankee beyond the March 21 expiration of its license to operate.

Entergy still must obtain a certificate of public good from the Vermont Public Service Board in order to extend the license for the 40-year-old plant another 20 years.

Shumlin said Judge Murtha’s ruling affirms Vermont’s ability to control the destiny of the plant through the Public Service Board process. On Wednesday, the Department of Public Service filed a request for a status conference with the three member board that would occur, he said, “as soon as the 30-day period (for an appeal filing) has expired.”

The governor said whether the appeal and certification process can move forward simultaneously is unresolved.

Reporters wanted to know whether the governor had any regrets about how the Legislature handled the issue. He declined to comment. They then questioned why he appeared to have more faith in the Public Service Board process now than he did a few years ago when as President Pro Tempore of the Senate he spearheaded the 26-4 vote that scuttled Entergy’s opportunity to seek a certificate of public good from the Public Service Board.

Shumlin recounted that James Volz, the chair of the Public Service Board, approached him and House Speaker Shap Smith in 2009 and told the legislative leaders they had to clarify whether the board could take up the case without legislative approval.

“The way Act 160 was written, the Legislature had to make a judgment yes or no,” Shumlin said. “As you know, I thought the answer was no. We didn’t have the option of saying ‘we can’t decide.’”

He pointed out that he wasn’t involved in the drafting of Act 160, which required legislative approval for the continued operation of Vermont Yankee.

“I was not in public service when Act 160 passed,” Shumlin said. “I just want to remind you it was the Legislature at the time and the governor at the time, Gov. Douglas, who signed Act 160. When I took over the Senate, the law said in order for Vermont Yankee to run past its design life it was required that the Legislature vote affirmatively that it was in the best interest of Vermonters or the Public Service Board couldn’t issue a certificate of public good.

“All I did as Senate president was follow the law,” Shumlin said. “I didn’t write the law. I didn’t vote on the law. I inherited the law.”

At the time he said Gov. Jim Douglas and “Entergy Louisiana” were “begging us to vote.”

“They didn’t decide they didn’t want a vote until they thought maybe the outcome wouldn’t be what they wanted.”

Shumlin’s views on Vermont Yankee haven’t changed, he said.

“It has been no secret that I feel strongly it’s in the best interest of Vermont to close the plant on schedule in 2012,” Shumlin said. “What we’re focusing on now is how are we going to get the best decision we can get.”

Editor’s note: Material was added to this story at 5:30 a.m. Jan. 26.

Correction: Entergy has spent $8 million on the case, according to Sorrell.

VTDigger

Vermont AG William Sorrell defended the state in a lawsuit brought by Entergy. VTD/Josh Larkin

Vermont Attorney General Bill Sorrell has been meeting with the governor, the Department of Public Service and legislative leaders as he weighs whether to appeal Judge J. Garvan Murtha’s decision to rule against the state in a lawsuit involving the Vermont Yankee Nuclear Plant.

Meanwhile, the Vermont Public Service Board has yet to reopen the docket to approve the certificate of public good for the 40-year-old nuclear power plant, a requirement for continued operation. Entergy could request it to reopen or the board could request a status conference, but neither has happened yet.

As the state weighs the merits of an appeal, the looming issue is the extensive evidence in the record highlighted by Entergy attorneys and Judge Murtha that Vermont lawmakers discussed radiological safety concerns with the plant — an area that is specifically reserved for federal regulation under the Atomic Energy Act.

While the 50-some pages of Murtha’s opinion discussing legislative history imply the state was really trying to regulate safety may seem grim for the state on appeal, Sorrell said there is plenty of other evidence in the record that the state had a permissible purpose.

Among the hundreds of pages of exhibits the state introduced, Sorrell said, was a letter from the chair of the Nuclear Regulatory Commission to former chairman of the Public Service Board Michael Dworkin in which the federal official acknowledged that states can legitimately regulate reliability issues.

The letter from former NRC Chairman Nils Diaz states, “The NRC’s statutory authority does not extend to regulating the reliability of electrical generation.”

It goes on to state that “there is some overlap” in the issues involving safety and reliability.

Download NRC Diaz letter 5-4-04

Sorrell said the state’s case also included testimony from Speaker of the House Shap Smith and numerous statements from legislators clarifying that Act 160, the bill requiring legislative approval for Vermont Yankee to receive a new certificate of public good, was in fact based on reliability concerns.

Sorrell said Murtha’s decision is inconsistent with the U.S. Supreme Court case which found a California law constitutional that instituted a moratorium on new nuclear plants until the state energy commission found there was a means to dispose of nuclear waste. That decision began with a presumption against preemption of state law and found the state law was valid based on the state’s avowed economic purpose for enacting the moratorium.

“The U.S. Supreme court said ‘we’re not going to go there and get into this ugly process of lawmaking, rather we’re going to look at the finished product and assume that they said was in fact what they say it was,’” Sorrell said.

While the state mulls the decision to appeal, another clock ticks for Vermont Yankee’s certificate of public good.

The Vermont Public Service Board must approve a certificate of public good for the plant to continue operating, and the board’s authority in this area is quite broad.

If Entergy doesn’t obtain a certificate by March 21, it cannot legally operate in Vermont.

A 2007 board decision outlines eight criteria for a certificate of public good, including business reputation and relationship with customers. The decision, which involved Fairpoint’s attempted acquisition of the local assets and operations of Verizon, notes that the board’s authority in determining whether to approve a certificate of public good is “broad.”

The statute, “permits the Board to exercise its jurisdiction so far as may be necessary to enable it to perform its duties and exercise the powers conferred upon it by law in issuing a CPG, the Board may tailor conditions appropriate to the planned activities of the petitioner,” the decision states.

One of the potential roadblocks for a new CPG for Entergy is the fact that the electricity sold after March will have to go out-of-state since local utilities’ contracts with the plant expire that month.

It appears this is a criteria the board could consider.

Gov. Peter Shumlin implied that this fact could play a role in the Public Service Board proceeding in an interview with Vermont Public Radio on Monday.

VTDigger

Court drawing from the first round of hearings. Deb Lazar/The Commons

Now that a federal judge has ruled in favor of Entergy, Vermonters are reflecting on what the decision means for the state and for future regulation of nuclear power facilities.

On Thursday, United States District Judge J. Garvan Murtha ruled that the Atomic Energy Act preempted two Vermont laws: one that prohibited the Vermont Yankee Nuclear Power Plant from operating beyond March without legislative approval and another that required Entergy to obtain permission to store high level nuclear waste at the site. Murtha’s decision also enjoined the Vermont Public Service Board from conditioning the issuance of a certificate of public good for continued operation on the existence of a below-wholesale-market power purchase agreement between Entergy and Vermont utilities.

Lawyers, lawmakers and Vermont citizens are sifting through the 102-page opinion, trying to determine just what it means for Vermont and the rest of the country.

One consistent response is that Judge Murtha bought Entergy attorney Kathleen Sullivan’s legal theory hook, line and sinker.

Cheryl Hanna, a constitutional law professor at Vermont Law School, has been following the case.

“The judge essentially agreed with their attorney Kathleen Sullivan that the legislature’s motive was safety,” she said.

Under U.S. Supreme Court precedent, states are preempted from regulating the radiological safety aspects involved in construction and operation of nuclear power facilities.

During the three-day trial in September, Entergy lawyers trudged through an exhaustive review of the legislative history of the Vermont law picking up references to safety concerns.

Murtha’s decision draws from that effort. The first 55 pages, or about half of the opinion lays out, in almost an academic way, the instances where lawmakers made references to radiological safety.

The decision states: “references, almost too numerous to count, however, reveal legislators’ radiological safety motivations and reflect their wish to empower the legislature to address their constituents’ fear of radiological risk, and beliefs that the plant was too unsafe to operate, in deciding a petition for continued operation.”

This record of statements addressing safety will make it an uphill battle for the state to appeal the case to the Second Circuit Court of Appeals, Hanna said.

“The problem going forward is that everything has been tainted by what happened,” Hanna said.

As a practical matter, Hanna said, federal law makes it very difficult for states to regulate nuclear energy. The confusion over what constitutes safety and what states are actually allowed to regulate in this field add a layer of difficulty for the attorney general in giving the legislature frank advice about these types of cases. The extensive record of safety references make an appeal even more difficult, Hanna said.

“It’s a long way from done, but I have a hard time imagining a legal scenario where the state will be allowed to shutter Vermont Yankee,” she said.

For now, the Vermont Public Service Board has the ball. The certificate of public good for Vermont Yankee is set to expire March 21, and Murtha’s decision requires Entergy to go back to the board for a determination that continued operation of the plant will in fact serve the public good.

Part of Judge Murtha’s decision narrows the scope of the board’s review somewhat. Under the ruling, the board cannot condition a certificate of public good for Vermont Yankee to remain in operation on a below-market power purchase agreement with Vermont utilities. Murtha found this type of requirement violates the dormant Commerce Clause of the federal constitution, which prohibits states from placing an undue burden on interstate commerce.

The Public Service Board will also clearly not be able to base a denial of a certificate of public good on radiological safety concerns.

A more nuanced issue that may emerge is the fact that Vermont’s two largest utilities, which represent somewhere around three-quarters of the market in the state, have already locked into other contracts in anticipation of Vermont Yankee’s closure.

Green Mountain Power entered a new contracts with Hydro-Quebec and plans to get additional power from the Seabrook Nuclear Power Plant in New Hampshire.

Dorothy Schnure, a spokeswoman for Green Mountain Power, said Vermont Yankee currently provides about 40 percent of its power, but that contract expires in March. The utility could not reach an agreement with Entergy, and given the uncertainty of the plant’s continued operation, opted to get power elsewhere. Schnure said the utility does have openings a few years out, however, that could be filled with Vermont Yankee power.

Steve Costello, director of public affairs for Central Vermont Public Service, said the utility has filled its needs with other energy sources.

“Essentially, we don’t have a dog in the fight any more related to the plant,” Costello said.

Their power contract is up in March also, and CVPS has found a relatively stable power supply with Vermont Yankee.

The only tie the utility has to Vermont Yankee is a revenue sharing agreement whereby if the plant sells electricity at above a certain rate after 2012, the utilities will receive a share.

This begs the question: Is it in the general good of the state to continue operating Vermont Yankee if all the power is sold out of state?

Pat Parenteau, a professor of law at Vermont Law School, said the state likely cannot deny a merchant plant the ability to sell power out of state. Even if Vermont gets no benefit from the plant it may still have to let it operate. The issue is whether the board can find a way to deny a certificate of public good based on something besides safety concerns.

“The real focus now is Public Service Board,” Parenteau said. “They need to make a better case there with non-radiation reasons to shut it down.”

As for an appeal, Parenteau said the state is stuck with a bad record with all of the references to safety that make it seem like this was the legislature’s purpose. Whether to appeal, however, is a tough call.

Parenteau said the state could have a case for appealing the part of Murtha’s decision that implies that any discussion of radiological safety taints the whole process. That’s not what the Supreme Court precedent says, according to Parenteau, and it is a fair issue to litigate.

“His [Murtha’s] interpretation not totally irrational, but it’s not the only interpretation,” Parenteau said.

The record, both Parenteau and Hanna agree, will present a huge hurdle should the case go forward. Both agree the legislature could have received better legal advice spelling out what it really could and could not do in enacting legislation.

Vermont Attorney General Bill Sorrell said his office has yet to decide whether to appeal Judge Murtha’s decision. The state has 30 days to decide.

“The court found the laws were invalid because they were prompted by concerns for radiological safety and consequently should be struck down,” Sorrell said. “There wasn’t deference to the legislature, and we’re disappointed in that.”

Sorrell said the court read too much into the legislative history.

“To take statements during legislative hearings of a few legislators and say all or a majority of legislators were in fact motivated by safety concerns is a leap,” he said.

The legislative history produced by Entergy attorneys includes statements of experts hired by legislative counsel informing lawmakers they cannot base a law on radiological safety. Entergy used these statements to imply an impermissible purpose.

“You can argue lawyers were trying to create a sham situation for the legislature,” Sorrell said. “On the other side of coin, lawyers are trying to protect integrity of the legislative process and make sure the legislature didn’t break the law. It only seems prudent that the legislature receive advice about how to do it properly.”

Sorrell mentioned that he has succeeded in overturning a decision by Judge Murtha in the Second Circuit. In the data mining case Sorrell v. IMS Health, the attorney general successfully appealed a decision in the Second Circuit but lost in the U.S. Supreme Court.

Sandra Levine, senior attorney with the Conservation Law Foundation in Vermont, called the decision a setback for Vermont and for clean energy going forward.

“This is a plant with a long and troubled history with operators providing false information to regulators, and it has completely lost the trust of Vermonters,” she said.

The Conservation Law Foundation filed a brief as amicus curiae supporting the state in the case.

The good news for environmentalists who supported shuttering the nuclear power plant, Levine said, is what Judge Murtha’s opinion did not say.

“The good news is that much of what has been accepted as state regulation remains in place,” she said.

For example, Entergy still needs to obtain a certificate of public good, and the Public Service Board can address economic and reliability issues.

Levine contends that the purpose of the law does not address safety, and Judge Murtha dug deep into the testimony to make a factual determination that the legislature based its laws on safety concerns. The next show, Levine agrees, will be with the Public Service Board, where Entergy will need to demonstrate the aging nuclear power plant is in the general good of the state. If the board denies a CPG, Entergy could appeal that decision to the state supreme court.

While Entergy released a statement Thursday praising the decision, Gov. Peter Shumlin and some Vermont lawmakers lamented.

Entergy’s statement read: “We’re pleased with the decision, which Judge Murtha issued after a thorough review of the facts and the law. The ruling is good news for our 600 employees, the environment and New England residents and industries that depend on clean, affordable, reliable power provided by Vermont Yankee.”

The corporation has not expanded on this statement.

Shumlin’s released statement read: “I am very disappointed in today’s ruling from the federal court. Entergy has not been a trustworthy partner with the state of Vermont. Vermont Yankee needed legislative approval 40 years ago. The plant received approval to operate until March, 2012. I continue to believe that it is in Vermont’s best interest to retire the plant.”

Rep. Tony Klein, D-East Montpelier, has been fighting to shutter the plant for years. Klein, who chairs the House Committee on Natural Resources and Energy, said he was disappointed that a Vermont judge went the route Murtha did.

Saying the legislature intended to regulate radiological safety based on legislative history is nonsense, Klein said.

“To ask me to strike the word safety from my vocabulary for 10 years is outrageous,” Klein said. “What we are not allowed to do is pass legislation based on safety, and we didn’t.”

Klein introduced a law this term to establish a tax on the storage of spent nuclear fuel in Vermont. He says he plans to continue pursuing that legislation.

John Campbell, President Pro Tempore of the Senate, said he was still reviewing the intricacies of the opinion. It seems, however, to be a further degradation of states’ rights, he said.

Campbell said he was curious to see how certain evidence came into play, particularly all of the references to safety in the record. Other evidence never emerged, Campbell said, like discussion in the Senate concerning the reliability of the plan that would have justified taking it off line.

The next step for the Vermont Yankee show will be the Public Service Board. Beyond that is anyone’s guess.

VTDigger

Google Earth image of the Vermont Yankee plant in Vernon, Vt.

U.S. District Court Judge J. Garvan Murtha has ruled that Entergy can continue to operate the Vermont Yankee Nuclear Power Plant in Vernon past a March 21 state-mandated shut down date.

In the decision handed down on Thursday, Murtha struck down several state laws, one of which (Act 160) prohibits the Louisiana-based corporation from running the aging nuclear plant beyond its current 40-year license without legislative approval. The other (Act 74) requires Entergy to obtain permission from the General Assembly to store high level nuclear waste at the site.

In February 2010, the state Senate voted to deny Entergy an opportunity to seek a 20-year renewal of its license to operate Vermont Yankee from the Public Service Board.

Download a copy of the Murtha Decision on Entergy v. Shumlin et. al.

Murtha wrote that the Atomic Energy Act preempts Vermont law. Consequently, the state cannot bring an enforcement action against Entergy, he wrote.

“Plaintiffs have demonstrated they would be irreparably harmed by Vermont Yankee’s closure under preempted laws if Defendants enforced Act 160, or the preempted provision in Act 74, or if Defendants conditioned approval of a petition for continued operation on the existence of a below-market power purchase agreement with Vermont utilities,” Murtha wrote.

The Vermont Public Service Board will now decide whether to issue a certificate of public good to Entergy that would allow the plant to continue operation for an additional 20 years.

Entergy filed a lawsuit against the State of Vermont in April of last year, a month after the Nuclear Regulatory Commission extended VY’s operating license for another 20 years in March 2011.

Entergy Corp. attorneys argued that nuclear safety was the motivation for the Vermont Senate’s 2010 vote.

Entergy also claimed that the Vermont Legislature regulated the plant on nuclear safety grounds through a careful and planned use of “code words.” Legislators substituted words and phrases like “economics,” “reliability,” and “public safety” to circumvent the NRC’s authority over all things nuclear safety, Entergy’s lead attorney Kathleen Sullivan told Murtha during the trial last fall.

The state’s attorneys said officials in Vermont were motivated by a deep mistrust of Entergy and misstatements by employees about the existence of underground pipes that leaked tritium into groundwater.

The Vermont Attorney General also cited failed negotiations over a power purchase agreement and over plans for an energy future founded on renewable-energy sources.

Reaction to the decision was swift.

Gov. Peter Shumlin, who led the Senate in the vote against the relicensure in 2010 when he was President Pro Tempore, was personally listed as a defendant in the suit.

The governor said he was “very disappointed” in the ruling.

“Entergy has not been a trustworthy partner with the state of Vermont,” Shumlin said in a statement. “Vermont Yankee needed legislative approval 40 years ago. The plant received approval to operate until March, 2012. I continue to believe that it is in Vermont’s best interest to retire the plant. I will await the Attorney General’s review of the decision to comment further on whether the state will appeal.”

House Speaker Shap Smith and President Pro Tem John Campbell emphasized that the state still has a say in the fate of the aging nuclear power plant.

“Under this decision, Vermont Yankee remains required to have a Certificate of Public Good issued by the Public Service Board in order to operate,” they said in a statement. “We expect the Public Service Board will consider the issue of continuing operation in its pending docket. The state will look closely at the decision to see what boundaries the Court has set for the issuance of a Certificate of Public Good and will hear from all parties to ensure that the best interests of Vermont and its citizens are represented in this process.”

Brad Ferland, president of the Vermont Energy Partnership, a business association that cites Entergy as a member, said the decision was “well-reasoned.”
 
“The judge’s decision is good news for Vermont,” Ferland wrote in a statement. “We hope today’s ruling will be the basis for fresh thinking and reflection on the very positive role the plant can and should play in the state’s future.  We encourage policy makers to pursue this course instead of protracted, expensive, divisive legal battles.”

VTDigger

Vermont Yankee on the banks of the Connecticut River

VERNON — The legal world holds its breath awaiting Federal Judge J. Garvan Murtha’s ruling on the Entergy v. Vermont case. Meanwhile, questions about problems at the Entergy Nuclear Vermont Yankee power station continue.

The Vermont State Nuclear Advisory Panel recently held a hearing about safety issues at the plant. Officials from the Nuclear Regulatory Commission answered questions about a Dec. 6 incident in which two backup generators that operate a plant cooling system were shut off. They also presented information about a report on Mark 1 General Electric reactors in light of the March nuclear plant disaster in Japan. In addition, Vermont Yankee plant employees informed the panel that the Construction Office Building well, which was found in 2010 to be contaminated by a tritium leak at the plant, will not be retested.

A mislabeled generator

Earlier this month, a plant operator mistakenly turned off a backup generator at the same time another emergency generator was down for service.

The two generators were down for about two minutes, according to a report from the Associated Press, and the plant continued to operate.

The incident sparked questions at the panel hearing.

Elizabeth Miller, VSNAP Chair and Department of Public Service Commissioner, wanted to know what timeline resident inspectors follow when there is a breach of safety protocols at the plant.

Scott Rutenkroger, the new NRC Senior Resident Inspector who was previously stationed at James A. FitzPatrick nuclear power in Scriba, N.Y., outlined his daily work rounds for the panel.

The timeline for this screening “varies a lot,” Rutenkroger said. He explained that inspectors study problems and then review the NRC’s regulations or standards.

Rutenkroger said the NRC also wants to see what the licensee, Entergy, produces in its root cause analysis.

Once the inspectors understand the event in total, they document the issue in their quarterly inspection report, Rutenkroger said. The next such report is due in January, he told Miller.

VSNAP member Jim Matteau asked whether Rutenkroger ever saw “something troubling” or if there were any “unpleasant days” during his routine at VY that required a work plan change.

Rutenkroger said he didn’t know “how to grade that question.”

Lessons from Fukushima

Chris Miller, director of the division of reactor safety for the NRC’s Region 1, which has jurisdiction over Vermont Yankee, gave a presentation on the commission’s actions in response to the nuclear accident at the Fukushima Daiichi nuclear complex in Japan.

Several of the reactors discharged radiation after an earthquake and tsunami hit the country in March.

Chris Miller said after the accident in Fukushima, the commission assigned a task force to evaluate the 104 nuclear reactors in the United States.

The commission has prioritized the task force’s recommendations into phases, with some items pegged for immediate action. Other responses fall into near-term and long-term categories, he said.

Chris Miller’s presentation listed the “recommendations the NRC intends to pursue without delay,” including reevaluating seismic and flooding hazards and modifying the sustained black out rule, which outlines expectations for plants operating during power outages.

The loss of backup generation directly accounted for the disaster in Japan.

The new sustained black out rule would require plants to run on backup power for a minimum of eight hours to 72 hours. Current regulations call for a minimum of four hours.

Another recommendation includes installing hardened vent designs in boiling water reactors with Mark I and Mark II containments. The Fukushima and VY reactors share the same boiling water reactor containment design.

Recommendations with longer timelines include seeking “stakeholder [industry] input in determining action on each recommendation,” developing new regulatory requirements, expanding the radius of the emergency planning zone beyond the present 10 miles, and addressing issues with dry cask storage.

Chris Miller said the commission expects that enacting the recommendations will take five years.

Also, he said, the commission’s rule-making process historically has taken three years because of inclusion of public feedback. The commission will probably limit public input on the Fukushima recommendations to speed up the process, Miller said.

“Within days of a shoe bomber failing to blow up an airplane, we were all taking off our shoes,” said state Sen. Mark MacDonald, a VSNAP member, referring to the Transportation Security Administration’s procedure of X-raying shoes after a failed terrorist plot in 2001.

“What’s going on at VY now that’s different than before the Fukushima accident?” he asked.

Rutenkroger said inspectors had identified post-Fukushima issues at VY and documented them in a May inspection report.

Sampling the COB well?

Vermont Yankee State Liaison Engineer Bernard Buteau told the panel that Entergy has no plans to take any more samples of a former drinking well on the plant site, known as the Construction Office Building well, that was found to be contaminated with tritium in 2010. Buteau said that further sampling will create a path for the radionuclide to contaminate drinking water.

In November 2009, tritium was found leaking from the plant. Engineers isolated the source — leaking underground pipes encased in a concrete tunnel — in January 2010.

Vermont Yankee “proactively” closed the Construction Office Building well, which was used as a drinking water source for employees at the plant, in February 2010, said Buteau.

Samplings of the COB well later that year tested positive for tritium.

Tests measured 1,040 picocuries per liter in a “fracture zone” in the well about 200 to 220 feet down, Entergy spokesperson Larry Smith told The Commons in an October 2010 interview.

“It’s [the tritium] in the aquifer,” Smith said at the time.

According to Buteau, VY ceased sampling the well in January 2011. The COB well’s shaft descends into the bedrock, he said, so sampling it could cause tritium to enter the aquifer below.

Gov. Peter Shumlin has called multiple times for Entergy to resume testing the COB well.

Buteau also said that the company had contracted with an environmental firm to develop a hydrology model of how water moves through the soils under the plant.

The model determined that water flows west to east toward the Connecticut River and upward from the bedrock toward the soil’s surface, he said.

Entergy has drilled 32 monitoring wells at VY to test for tritium moving through the groundwater. The company tests an additional seven local drinking wells in Vermont and New Hampshire, said Buteau.

These drinking water wells have never tested positive for tritium, he said.

“There’s no [tritium] ingestion path for the public as confirmed by the NRC in inspection reports,” said Buteau. “It’s not prudent, nor do we need to sample the COB.”

The company will leave the COB well alone in an attempt to safeguard the public, said Buteau.

VSNAP member Laurence Becker, who represented Agency of Natural Resources head Deb Markowitz, said the discovery of tritium didn’t “jibe” with the hydrology model. He said the company should resume testing.

Becker added that representatives at the Environmental Protection Agency’s lab in Washington D.C. believed that the vacuum method previously used to sample the COB well, which also risked injecting tritium into the aquifer, was unnecessary.

Holding accountable

Most of the 20 members of the public spoke out against the nuclear plant during the public comment portion of the meeting.

Clay Turnbull of the New England Coalition on Nuclear Pollution (NEC) presented the panel with a press release and copies of a staff report from U.S. Rep. Ed Markey, D-Mass.

Turnbull said the report, “Regulatory Meltdown: How Four Nuclear Regulatory Commissioners Conspired to Delay and Weaken Nuclear Reactor Safety in the Wake of Fukushima,” confirmed the NEC’s concerns that the commission regularly attempts to weaken the regulations governing nuclear plants and engages in “foot dragging” on Fukushima-related reforms.

Turnbull also described the report as outlining how four commissioners had failed to “enlist” NRC Chairman Gregory Jaczko to their “wait-and-see and behind closed doors approach.”

Attempts by Jaczko’s colleagues to remove the chairman have been the focus of recent congressional testimony.

In the NEC press release, the 40-year-old anti-nuclear group called on VSNAP members to recommend that Shumlin, Attorney General William Sorrell, the Department of Public Service, and the state’s Congressional Delegation “strongly support NRC Chairman Gregory Jaczko before President Obama and the U.S. Congress and in support of prompt, decisive, and ongoing action and regulatory reform responding to Fukushima’s lessons.”

“There is reason to believe that hydrogen, which fed the appalling explosions at Fukushima, may have been created, at least in part, from localized boiling of spent fuel coolant,” said NEC Technical Advisor Raymond Shadis.

“Vermont Yankee’s spent fuel pool contains more high-level nuclear waste fuel than all four of the Fukushima reactors combined,” said Shadis.

He added that the NRC “has calculated potential latent fatalities of a spent fuel fire at VY to be up to 25,000, out to a range of 500 miles; despite successful early evacuation of the 10-mile evacuation zone.”

Shadis said that two Fukushima hazard-reduction measures included moving spent nuclear fuel from spent fuel pools to dry cask storage and replacement of all non-submersible safety-related electrical cables from underground conduits or cable vaults.

“The NRC won’t do these jobs unless held accountable by citizens and the state,” said Turnbull.

Editor’s note: Because of an error, the end of this story was not originally posted. The full text was restored on Dec. 30.

VTDigger

Cameron and Dick Nesbitt of Nesbitt’s Portside Tavern in Vernon show their support for Vermont Yankee’s workers at a rally at the plant on Sunday. Photo by Randolph T. Holhut.

This article, by Randolph T. Holhut, was first published in The Commons.

VERNON — Workers during Sunday afternoon’s shift change at the Vermont Yankee nuclear plant were greeted by a group of sign-carrying people standing at the gates.

Only on this day, the people standing in front of the plant were waving and shouting their encouragement.

In what Vermont Yankee Site Vice President Michael J. Colomb said was likely a first at the plant, about 30 people gathered to express their support for Vermont Yankee.

“They see a lot of the other side, so it’s good for the workers that they get to see some supporters at the gates,” said Colomb.

The event was organized by Howard Shaffer, Meredith Angwin, and Cavan Stone, who are part of the Energy Education Project, which is sponsored by the Ethan Allen Institute, a Vermont-based, conservative-leaning think tank. The project was created to provide “reliable and unbiased information about energy in Vermont,” according to the project’s website.

“We wanted to pep up the people who are working here during the outage,” said Shaffer, a former nuclear engineer who lives in Enfield, N.H. The plant is not producing power as it undergoes its every-18-months refueling operation.

“We timed this event so it would happen during a shift change, so we can let the workers know they have support,” Shaffer said.

“People working in nuclear power get a lot of negative blowback,” said Angwin, a physical chemist and former project manager at the Electric Power Research Institute who writes the “Yes Vermont Yankee” blog. “There has been a lot of tension here over the last few months with the trial and the uncertainty over the plant’s future.”

Entergy, the owner of Vermont Yankee, is awaiting the outcome of a civil suit it filed in U.S. District Court. It is suing the state of Vermont, challenging the state’s role in regulating the Vernon plant and the Legislature’s decision to bar the state Public Service Board from issuing a Certificate of Public Good.

The town is really hopping now with all the workers here for the refueling. When they’re here they’re not just working and leaving, the town benefits from them. They’re buying groceries, renting rooms and hotels, and shopping at the local stores.”
- Cavan Stone

The U.S. Nuclear Regulatory Commission issued a 20-year license extension for the plant earlier this year, but the state CPG is necessary under state law for the plant to operate past the expiration of its original operating license in March 2012.

Cheryl Twarog of Keene, N.H., understands the financial pressure workers are under. She was there Sunday with her two children, Cam, 11, and Evan, 14. Her husband, John, has worked at Vermont Yankee for 12 years, and he stopped by the rally before he started the overnight shift.

“We have had some very sleepless nights,” Cheryl said. “It’s a bad place to be when your major source of income is being threatened. And we certainly aren’t the only ones going through this.”

John, who works in operations, said he and the other 650 workers at the plant are now joined by about 850 outside workers that are assisting with the current refueling and maintenance outage.

“We’re working at a very fast pace,” he said. “We’re on a tight schedule to get the work done, and it’s being done around the clock.”

While most of the people who showed up on Sunday came from the area, Dick and Kay Trudell drove from Grand Isle — about as far away as you can get from Vernon and still be in Vermont — to be part of the event.

“We support the plant,” Kay Trudell said. “We think it is safe, and we want it to keep on being safe.”

“We can’t afford to shut down a good source of electricity,” Dick Trudell said. “If this reactor is near the end of its life, they should be making plans to build another one here.”

As workers arrived at the plant, they honked horns and waved at the supporters.

“You can see their faces light up, especially the out-of-staters,” said former state Rep. Patty O’Donnell of Vernon. “They’re not used to seeing something like this.”

Cavan Stone, who the runs the Energy Education Project web site, said that the positive response from workers was one of the primary reasons why they decided to rally at the plant.

“We appreciate all the work they do, and all the jobs they provide,” he said. “The town is really hopping now with all the workers here for the refueling. When they’re here they’re not just working and leaving, the town benefits from them. They’re buying groceries, renting rooms and hotels, and shopping at the local stores.”

One of those local businesses benefitting is Nesbitt’s Portside Tavern, about a half-mile from the plant.

Cameron Nesbitt and his father, Dick, said business has been brisk with the arrival of the out-of-state workers. “We refuel the refuelers,” Dick said.

Angwin said the rally was held last Sunday so it would not conflict with an anti-nuclear rally planned for Oct. 30 from noon to 3 p.m. That rally is organized by the SAGE Alliance, a consortium of anti-nuclear groups. For more information, visit the group’s website.

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Jochen Flasbarth, president of Germany's Federal Environment, speaking at a press conference in Montpelier on Tuesday. VTD/Josh Larkin

German environmental leaders are urging Vermont officials to follow their country’s lead and drop nuclear power.

In May, the German government announced plans to phase out all nuclear power plants by 2022. The decision came in the wake of mass anti-nuclear power protests across the country after the Fukushima Daiichi Nuclear Power Station disaster. The Fukushima incident is considered to be the worst nuclear disaster since Chernobyl. An earthquake and subsequent tsunami caused explosions and leaks of radioactive gas at three reactors that suffered partial meltdowns. In addition, spent fuel rods caught on fire and released radioactive material into the atmosphere and the Pacific Ocean.

The reactors that emitted radioactive contaminants into the Japanese environment are Mark 1 General Electric models, identical to the type used at the Vermont Yankee Nuclear Power Station in Vernon.

In a visit to Montpelier on Tuesday, which was coordinated by the Maryland-based anti-nuclear power group Beyond Nuclear, Jochen Flasbarth, president of Germany’s Federal Environment Agency, and Arne Jungjohann, of the Heinrich Böll Foundation, joined Rep. Tony Klein, D-East Montpelier, to discuss Vermont’s shift away from nuclear power.

“It’s an amazing shift in energy policy,” Flasbarth said of the Vermont Legislature’s decision not to renew the Vermont Yankee nuclear plant’s operating license in 2012.
Flasbarth said Germany plans to transition toward 40 percent renewable energy by 2020 and 80 to 100 percent renewables by 2050. He said 25 percent of Germany’s energy on its grid comes from renewable sources. The country might use more coal in the next 10 years to replace its nuclear sources, but the amount of coal it burns is capped by the European emission trading system. This system covers installations that emit large amounts of carbon dioxide, and it includes nearly half of the European Union’s carbon dioxide emissions. Companies receive emissions allowances that they can buy or sell as needed.

Klein, who chairs the House Natural Resources and Energy Committee, said the policies Germany has implemented validates the work he and others have been doing to move away from nuclear power.

“We are moving toward a more independent, cleaner energy system,” Klein said. “We are going to be less reliant on big, centralized power producers.”

Jungjohann, who is affiliated with the German Green Party, said Vermont’s legislation is a rare example nationally of cleaner energy initiatives in the United States.

“You don’t change politics in Washington,” he said. “Where it’s happening is at the state level.”

Jungjohann praised Vermont for its decisions to implement a “feed-in tariff” policy that sets different rates for different types of renewable projects in order to encourage investment in renewable technologies. In Vermont, the Legislature enacted a law in 2009 to create a “standard offer” for certain projects of less than 2.2 megawatts. The essence of the standard offer is that it requires utilities to purchase electricity from certain small renewable projects at above-market price—usually calculated to cover the cost of developing a qualifying project. In Germany, unlike Vermont, there is no cap on the feed-in tariff. The system also adjusts such rates to keep them closer to the market cost of energy. Likewise, the standard offer program is open ended in Germany, while in Vermont there are a limited number of projects that can receive the benefit.
Jungjohann said Germany focuses on developing energy cooperatives for projects like wind farms that keep revenue in local communities. He said this type of decentralized, community-owned approach produces acceptance and economic benefit for the people who live near the projects.

“There’s a small-town energy revolution on its way,” Junjohann said.

He said in Germany, people are already seeing the benefit of creating a local energy economy.

In Vermont, proponents of Vermont Yankee fear a shutdown will result in higher energy prices for ratepayers if the state has to purchase its energy from the New England grid.
When asked about the costs of shifting away from nuclear power, Flasbarth said “the bill presented to the consumer is not the real bill” when taking into account the costs of environmental problems that could occur as a result of nuclear power. He claimed, further, that investing in renewable energy in Germany had helped the country overcome the global economic downturn by creating jobs and a “green economy.”

Larry Smith, a spokesman for Vermont Yankee, said he could not discuss the future of the nuclear plant in Vermont’s energy portfolio because of the pending litigation between Entergy and the State of Vermont. Entergy filed a lawsuit in Vermont District Court in April seeking a judgment to prevent the state from forcing the plant to shut down in March 2012.

Vermont Yankee’s position, he said, is that the plant is safe and that comparing the facilities there to the Fukushima Daiichi plant is unfair.

“It’s apples and oranges,” Smith said.

Critics of Vermont Yankee have highlighted the fact that the Vermont plant uses a GE Mark I Boiling Water Reactor similar to the one that failed in Japan,  as well as technical problems with the facility, including a tritium leak and the existence of strontium 90, a radioactive material, in fish near the plant.

Smith said the two facilities have a similar design, but there are significant upgrades at Vermont Yankee that were suggested by General Electric or mandated by the Atomic Energy Act. One of these upgrades included hardened vents designed to send hydrogen into the atmosphere in an emergency to avoid build up of the gas that could explode. The Nuclear Regulatory Commission renewed Vermont Yankee’s license earlier this year but maintained that the agency would continue to evaluate safety measures at the plant in light of the disaster in Japan.

Flasbarth also spoke at the Renewable Energy Vermont conference and at the Bethany Church in Montpelier. The Vermont Yankee Decommissioning Alliance and the Vermont Public Interest Research Group also sponsored the Vermont stop on the Beyond Nuclear tour.

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Google Earth image of the Vermont Yankee plant in Vernon, Vt.

Editor’s note: This article was originally published in The Commons.

BRATTLEBORO—Entergy and Vermont’s post-trial briefs hit U.S. District Judge J. Garvan Murtha’s desk last week.

The corporation, which wants three state statutes overturned so it can continue operating the Vermont Yankee Nuclear power station, also asked that its Certificate of Public Good case return before the Public Service Board.

In its brief, the state asked the federal court to hold Entergy’s feet to the fire.

Entergy Corp. attorneys filed suit against Vermont in federal court in April. The corporation claimed the state’s regulation of VY strode into the territory of the Nuclear Regulatory Commission (NRC) by attempting to regulate nuclear safety. Entergy purchased the 38-year-old nuclear plant in Vernon in 2002. The plant needs a federal-issued license and a state-issued Certificate of Public Good (CPG) to operate in Vermont. VY’s current operating license expires March 2012. In March, the NRC renewed VY’s operating license so it can run until 2032. Last year, however, under Act 160, the state Senate voted 26-4 to deny VY a CPG hearing, effectively closing the plant’s docket before the PSB.

Entergy claims that the Vermont Legislature regulated the plant on nuclear safety grounds through a careful and planned use of “code words.”

Legislators substituted words and phrases like “economics,” “reliability,” and “public safety” to circumvent the NRC’s authority over all things nuclear safety, Entergy’s lead attorney Kathleen Sullivan told Murtha during last month’s trial.

Entergy’s legal team said that nuclear safety also motivated the Vermont Senate’s 2010 vote.

In the brief, Sullivan told Murtha that the court should reverse three statutes pertaining to the regulation of VY: Acts 74, 160, and 189.

The state, for its part, claims that a host of different concerns, unrelated to nuclear safety issues, motivated the Legislature.

The state’s attorneys cited motivations like a deep mistrust of Entergy and misstatements by employees about the existence of underground pipes that leaked tritium into groundwater.

The state also cited failed negotiations over a power purchase agreement (PPA) and over plans for an energy future founded on renewable-energy sources.

According to Vermont’s attorneys, Entergy repeatedly agreed to comply with state statutes. The company also acknowledged the Legislature and PSB’s authority in public communications.

In a memorandum that entered the public record as part of the state’s approval of Entergy’s purchase of VY, the company explicitly stated that it recognized the state’s rights to regulate non-safety issues and “waive any claim [it] may have that federal law preempts the jurisdiction” of the PSB to approve or deny a renewed certificate.

Federal law explicitly prohibits states from regulating atomic safety.

Only when the corporation did not get the CPG it wanted did Entergy cry pre-emption, said State’s Attorney Scot Klein.

Vermont’s attorneys argued to Murtha that Entergy should honor its commitments.

At the close of the September three-day merits trial in Brattleboro, Murtha asked the legal teams for both the state and for Entergy to answer three questions.

He asked for:

• each side’s respective response to the other’s defenses.
• whether Acts 74 and 160 could be separated from the pre-existing portions of their respective Vermont statutes (“severable” in legal terminology),
• which statutes besides Acts 74, 160, and 189 grant the PSB’s authority over VY.

Murtha also asked Entergy to define what relief it was seeking from the court.

Both sides agreed that the acts could be separated from their larger statutes.

Just purchase your power elsewhere

Entergy, which wants the process for its CPG to resume, requested numerous reliefs from the court in its post-trial brief.

The attorneys told Murtha that the court should invalidate Acts 74, 160, and 189 and prevent the state from ever enforcing the acts or from denying a CPG based on the acts.

Attorneys also asked that the court “permanently enjoin” the PSB from denying VY a CPG based on several criteria: radiological safety concerns, not agreeing to sell “favorably priced power to Vermont utilities,” and reliability issues, including energy diversity.

Entergy said too that the court should block the state from curtailing VY’s operation pending the PSB’s ruling on the plant’s CPG.

The company again argued that the court should consider the state’s legislative history as proof of the General Assembly willfully and covertly regulating nuclear safety.

One quote cited by Entergy in its brief came from state Sen. Ann Cummings, D-Washington, the chair of the Senate Finance Committee.

According to Entergy, Cummings said, “We can have a much broader range of ability to hear [about ‘sterile sheep’ and ‘three-headed turtles’] than the [PSB] does. The board for good reasons has much more constraint.”

The attorneys cited a disconnect between Vermont’s goals stated in its statutes and the actions of utilities like Green Mountain Power and Central Vermont Public Service.

The utilities turned around and purchased nuclear-generated power from Seabrook in New Hampshire, the lawyers noted.

Entergy’s legal team also cited comments from lawmakers.

Attorneys asked the court to block the PSB from denying a certificate on the basis of radiological safety concerns, the lack of a favorable PPA, or “reliability, need or cost.””

“Although legislators plainly had a purpose to regulate radiological safety, they were coached to avoid intoning the word ‘safety,’” wrote attorneys.

Entergy attorneys also said that the state never proved that it would have taken any other action besides shutting down VY absent a radiological safety concern.

Finally, Entergy lawyers wrote that the state’s “requiring” of a favorable, below-market power purchase agreement violated the Federal Power Act, which regulates the interstate sales activities and rates of power plants.

State: Entergy not a good corporate citizen

In its brief, the state reiterated its argument that acts 74, 160, and 189 steered clear of pre-emption territory.

They also argued that the court should base its decision on the end statutes and not legislative history, citing the Pacific Gas and Electric v. State Energy Resources Conservation and Development Commission case before the U.S. Supreme Court as “binding precedent.”

Entergy’s preemption claim “turns entirely on its view that the court should disregard the statutes and instead attempt to discern the motivations of individual legislators by reviewing fragmented legislative history drawn from years of proceedings,” wrote the state.

“ENVY is wrong about the pre-emption inquiry, and its summary of the legislative record is incomplete and flawed,” attorneys charged. “Applying the proper standard, the Court should uphold Vermont’s laws.”

The state called Entergy’s stance of “just don’t buy power from us” as an “about face” from when the company previously strutted out the promise of a favorable PPA.

Attorneys for the state also reminded the court that “it’s undisputed that it was the utilities — not the state — [that] negotiated PPAs.”

In its brief, the state cited public statements and documents by Entergy employees like Curt Hébert, its former executive vice-president, and Jay Thayer, VY’s vice president of nuclear operations.

Those statements repeatedly celebrated Vermont’s statutes and acknowledged both the authority of the PSB and General Assembly, the state’s attorneys wrote.

The state said that, as a matter of fairness, Entergy needed to be held “to its promises — promises the state relied on in granting ENVY numerous regulatory benefits over the last decade.”

A gutted PSB?

Although Entergy attorneys acknowledged the PSB’s authority, they also asked the federal court to restrict the state board’s reach by limiting the grounds on which the state may deny VY a CPG.

During the court trial, Sullivan expressed concern that the PSB was “tainted” by the General Assembly and grassroots organizations’ actions against VY.

Attorneys asked the court to block the PSB from denying a certificate on the basis of radiological safety concerns, the lack of a favorable PPA, or “reliability, need or cost.”

According to Entergy’s brief, the PSB should be explicitly forbidden from ruling on “pre-empted grounds.”

These pre-empted grounds include nuclear safety “under the rubric of public health and safety,” as well as economic issues covered under the Federal Power Act regarding wholesale power generators like VY.

The economic grounds include, said Entergy lawyers, any criterion that would attempt to “extract a below-market” price for the company’s power.

The state disputed Entergy’s “tainted” claim, saying the legal team had not presented proof of misconduct on the part of the PSB.

Furthermore, said the state’s attorneys, legal reciprocity and federalism caution against restricting a “quasi-judicial body” like a PSB.

VTDigger

A graphic illustrating the function of reactor recirculation pumps in a boiling-water reactor like Vermont Yankee. They help circulate water from the bottom of the vessel up through the nuclear fuel. Illustration courtesy of the Nuclear Regulatory Commission.

This article was first published by The Commons.

VERNON — The Vermont Yankee nuclear power station reduced power to 46 percent this week after one of the two recirculation pumps malfunctioned.

According to VY spokesperson Larry Smith, on Sunday at 11 p.m., the motor generator unit stopped working in a reactor recirculation pump (RRP), called “Bravo” by engineers.

The failure had “no health, safety or nuclear implications,” said Smith.

Recirculation pumps are critical for electricity production, said U.S. Nuclear Regulatory Commission spokesperson Neil Sheehan, adding VY is “compliant at this point” with NRC regulations.

Boiling-Water Reactors (BWR) like VY’s circulate large quantities of water through the reactor as part of power production, said Sheehan. The motor generator units provide the horsepower to move the water.

Sheehan said the RRPs are part of electricity production and separate from the safety-related cooling water system.

The water circulated by the pumps belongs to a “completely separate” closed-loop system. It does not draw from, or deposit water into, the river, he added.

By virtue of its contact with the fuel rods, Sheehan said, the water circulated by the RRPs is “slightly radioactive.”

According to Sheehan, engineers worked Monday and Tuesday to shift the double-loop circulation system to a “single-loop operation.”

“Entergy made a decision to place the plant into single-loop operation, using one reactor [“Alpha”] recirculation pump, while repairs to the “B” reactor recirculation pump continue,” said Sheehan.

To shift to a single loop mode, said Sheehan, VY engineers had to complete a number of steps checking safety limits and settings within 12 hours.

The NRC has lifted the 24-hour limited conditions of operation (LCO) it placed on VY after the plant reported the Bravo pump had stopped working, said Sheehan.

This means VY had until 11 p.m. on Monday night to fix the pump, or shift to a single-loop operation. If plant engineers had not managed to make repairs by the deadline, said Sheehan, the plant would have been shut down until engineers completed repairs.

Working together, the Bravo and Alpha pumps keep the plant generating electricity at 100 percent, said Smith. So when one pump ceases operating, the plant’s electrical generation capacity drops to 50 percent or less.

According to Smith, engineers lowered power production further while working on the Bravo pump. As of Tuesday afternoon, he said, VY was generating at 47 percent power.

Plant employees are “investigating the cause of the problem,” said Smith, adding that he did not have a timeline for how long the pump would remain down.

Sheehan said NRC resident inspectors continue to monitor the repair process.

The NRC assigns different time frames to LCOs, depending on the safety significance of the affected plant components. Time frames range from 24 hours to 14 days.

Prior to the RRP issue, VY’s power production had dropped to 90 percent, said Smith.

With the October scheduled refueling around the corner, VY had already entered a “coast down” phase, said Sheehan and Smith.

Coasting down occurs as a result of the reactor slowly running out of fuel, said Smith.

VTDigger

Google Earth image of the Vermont Yankee plant in Vernon, Vt.

Editor’s note: This article first appeared in The Commons.

The Entergy v. Vermont trial in U.S. District Court concluded Wednesday in Brattleboro, and Judge J. Garvan Murtha has plenty to consider.

Did Vermont, as Entergy contends, improperly stray into the realm of federal regulation in seeking to shut down Vermont Yankee? Or is Entergy, as the state contends, going back on previous legal agreements that allowed Vermont to have a say in the plant’s future?

Murtha is expected to take up to two months to issue a decision in this lawsuit.

In her closing argument, Kathleen Sullivan, the lead attorney for Entergy Nuclear, the owners of the Vermont Yankee nuclear power plant in Vernon, continued to press the theme that the state has overstepped its bounds regarding the regulation of nuclear power.

Entergy has sued the state over its denial of a Certificate of Public Good to operate Vermont Yankee past the expiration of its current license in March 2012. Earlier this year, the U.S. Nuclear Regulatory Commission issued a 20-year license extension to Entergy.

Entergy attorneys have told the court that they hope Judge J. Garvan Murtha will overturn three Vermont statutes: Act 74, Act 160 and Act 189.

Sullivan has been trying to show that nuclear safety concerns — which are the sole purview of the NRC — are what drove the Vermont Senate in 2010 to defeat a bill that would have allowed the Public Service Board to issue a CPG for Vermont Yankee.

Sullivan pushed Entergy’s closing statements over six hours, plus approximately 30 minutes of rebuttal, in response to the state’s closing arguments.

Sullivan contends that any other reasons that the state has given for closing the plant in 2012, like economic concerns, are merely pretexts for discussing nuclear safety issues, and she played several recordings of legislative sessions to bolster that point.

Rather than shut the plant down, if the state didn’t like us, then “don’t do business with us,” she said.

If you [Vermont] don’t like the deal the company offered in its purchase power agreement [PPA], is the remedy to shut the plant down?”
- Kathleen Sullivan
Entergy lead attorney

Citing the 1983 Pacific Gas & Electric v. California Supreme Court case, Sullivan maintained that the court needed to decide the case by considering legislative intent by way of Vermont’s legislative history.

Sullivan maintained that the state had no evidence supporting that the purposes stated in Act 74, Act 160 and Act 189 matched what the legislators were truly thinking.

Sullivan argued that the state gave “hypothetical” examples, and didn’t show what legislators “actually” did.

“A theoretical legislature might hypothetically try to promote” other, non-nuclear safety energy goals, she said.

The state offered no evidence of what “the actual Legislature had in mind,” Sullivan said in reference to Act 74.

Act 74, enacted in 2005, regulates the dry cask storage of spent nuclear fuel at VY and requires Entergy to seek permission from the state to store additional fuel past 2012.

Sullivan also argued that Vermont’s decision to shut down Vermont Yankee, through its 2010 Senate vote, violated the dormant commerce clause. The decision, she said, “discriminated” against the other New England states because it didn’t allow them to purchase power from Vermont Yankee after 2012.

“If you [Vermont] don’t like the deal the company offered in its purchase power agreement [PPA], is the remedy to shut the plant down?” she asked the court.

In her rebuttal, Sullivan painted a picture of a power plant forced to acquiesce to a state’s pre-empted, nuclear safety-related regulations “against its will.”

Sullivan said the state broke its commitment to Entergy “in a fundamental way” with Acts 74 and 160.

“This wasn’t a negotiation, it was a coercion,” she said of Entergy’s agreements to Vermont’s regulations.

In two hours of closing arguments, the Vermont attorney general’s counsel, Bridget Asay, asserted the state steered clear of the federal pre-emption laws regarding nuclear safety.

Assay said the state’s statutes that regulated Vermont Yankee fell within the “permissible” territory of concerns like economics and the state’s long-term energy goals.

Asay also cited the PG&E case, saying the Supreme Court focused on the text and stated purpose of California’s statutes.

Entergy’s route of using legislative history to determine a statute’s final intent “contradicted” the Supreme Court’s precedent, she said.

According to Asay, the Supreme Court chose to not consider legislative history because how could a court pinpoint the motivation of every lawmaker voting on a bill?

Statutes, she said, were the product of a process of deliberation.

Instead, Entergy’s approach of studying legislative history asked the court to find that Vermont’s 180-member citizen Legislature had conspired over multiple sessions to lie within its statutes.

Asay said by choosing to sue the state, Entergy had broken its commitments and signed contracts. She asked the court not to allow the company to “walk away” from its agreements.

Asay also presented the court with documents and audio clips from Entergy management pointing out where the company acknowledged the state’s authority to regulate the plant.

The company engaged with Vermont’s legislative process and made commitments, she said, as long as everything worked to Entergy’s benefit.

Speaking outside the courtroom Wednesday, Vermont Attorney General William Sorrell said that nuclear safety was not the sole pretext for the state’s decision not to issue Vermont Yankee a certificate to operate the plant through 2032.

He cited the loss of trust in Entergy after the revelations of leaks of tritium-laced water from underground pipes that Entergy officials said did not exist at Vermont Yankee. He also cited the attempt by Entergy to spin off Vermont Yankee and five other plants into a new corporation, and the lack of a favorable power purchase agreement.

He said the burden is on Entergy to prove that Vermont was only focusing on safety in its policy making.

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