In a bustle of filings before the Vermont Public Service Board, the state, Entergy and environmental groups responded Wednesday to pointed questions from the board over the continued operation of Vermont Yankee.
The pressing issue is whether the plant can operate after its current license expires on March 21.
The flurry of court documents sets the stage for a status conference Friday before the PSB at the Vermont Statehouse where parties to the docket will discuss procedural issues in the ongoing case that was recently reopened. Parties run the gamut from the state Department of Public Service to power utilities and environmental groups.
On Feb. 22, the PSB asked Entergy and other parties to the case to say their piece on procedural issues surrounding the nuclear plant’s relicensing.
On Jan. 19, federal district Judge J. Garvan Murtha ruled in favor of Entergy, finding Vermont laws requiring legislative approval during the re-licensing process are pre-empted by the Atomic Energy Act, which preserves regulation of radiological safety for the federal government.
Murtha’s decision did not take away the Public Service Board’s authority to issue a certificate of public good, but at the end of January Entergy nevertheless asked the board to give it a new license.
The board’s detailed memo in February seemed to catch Entergy by surprise. The board asked parties if Entergy plans to continue operating after March 21 and if so, on what legal basis.
One Vermont law implies the plant must shut down on March 21 if it does not have a new license. Another law states it can continue operating while the license renewal process goes on.
While the ultimate fate of the nuclear power plant may lie in federal court, some parties in the Public Service Board proceeding are pushing for the plant to shut down sooner.
Jared Margolis, an attorney for the New England Coalition, a party in the Public Service Board docket, said shutting the plant down on March 21 is a possibility, if an unlikely one.
Margolis says a 2002 memorandum of understanding between the state and Entergy requires the plant to have a license in hand before the plant can operate beyond March 21.
Margolis also claims Entergy’s argument that the board should go ahead with a decision without adding to the record is not genuine.
“They’re kind of being disingenuous when they’re saying the record is incomplete,” Margolis said.
Margolis said Entergy argued in federal court that the Public Service Board’s record in the relicensing proceeding was unreliable because it considered safety issues. Entergy said this was improper since the court found the federal Nuclear Regulatory Commission should deal with these matters exclusively.
In its motion for a final order with the PSB, Entergy argued the board had a sufficient record to make a decision.
The New England Coalition and the Conservation Law Foundation propose reopening the record to include evidence such as misleading statements made by Entergy regarding leaks in underground pipes.
Margolis said Entergy’s filing in federal court seeking an injunction that would prevent the board from shuttering the plant March 21 was a means of trying to strong-arm the board, whose members are listed as defendants in the federal lawsuit.
“Entergy thought they had them in a position where they thought had to grant them a CPG or be at risk of being pre-empted,” he said.
Some legal experts say the likelihood of Vermont Yankee shutting down on March 21 are slim to none.
Don Kreis, a law professor at Vermont Law School (and a member of the board of the Vermont Journalism Trust, parent organization of VTDigger.org), wrote a commentary discussing why the plant will likely not shut down this month. Kreis says the PSB’s request for information doesn’t mean it plans to try to shut the plant down in two weeks.
Environmental groups claim the provisions in Vermont law requiring board approval before the plant can operate after March 21 supersede an earlier law that would allow the plant to continue operating until the license renewal process ends.
Sandra Levine, senior attorney for the Conservation Law Foundation in Vermont, another party to the PSB proceeding, said things like the requirement limiting the storage of spent nuclear fuel to only that produced up to March 21 still stand.
“The bottom line is Judge Murtha’s order only addressed legislative actions,” Levine said. “It did not address approvals that are needed from the Public Service Board. They are intact.”
Entergy declined to comment on the pending litigation and Public Service Board proceeding.
In its most recent filing, Entergy argues that since the federal court invalidated the law (part of Act 74) that required legislative approval for storage of spent nuclear fuel, the board cannot force the plant to shut down on those same grounds.
To shut the plant down on those premises would go against the federal court decision.
The Vermont Department of Public Service, which represents the public before the Public Service Board, in its filing stated that after March 21, Vermont Yankee can continue to operate under its current license until the board proceeding is complete.
Activists are preparing to take action on March 22 if the plant remains in operation. Deb Katz, executive director of the Citizens Awareness Network, said her group is among those planning a rally and march to Vermont Yankee’s offices in Brattleboro.
