2012 Energy Recap: U.S. District Court judge rules against state in Vermont Yankee verdict

Energy 2012 Recap: U.S. District Court judge rules against state in Vermont Yankee verdict

Vermont Yankee on the banks of the Connecticut River

Vermont Yankee on the banks of the Connecticut River

A U.S. District Court judge in January struck down state statutes requiring the shutdown of Vermont Yankee Nuclear Plant by March 21 of this year. Judge Marvan Gurtha ruled that the federal Atomic Energy Act preempts state laws and therefore, Vermont cannot bring enforcement action against Entergy Corporation. The decision paved the way for Entergy, the Louisiana-based owner of the plant, to file a request for a certificate of public good from the Vermont Public Service Board.

At issue is long-term storage of high-level nuclear waste at the plant and legislative approval for continued operation of Vermont Yankee. Murtha struck down Act 160, which prohibits Entergy from running the plant beyond its current 40-year license without legislative approval, and Act 74, which requires Entergy to obtain permission from the General Assembly to store high-level nuclear waste at the site.

Murtha determined that the state Legislature had denied a permit to Entergy to continue operating the plant based on concerns about safety. The state’s jurisdiction over the plant is limited to environmental, electric grid reliability and economic factors; the Nuclear Regulatory Commission has exclusive purview over questions of radiological and plant safety. The NRC gave Entergy a 20-year license extension for the plant in March of 2011.

The state’s attorneys have said officials in Vermont were motivated by a deep mistrust of Entergy.

Vermont Yankee, located on the banks of the Connecticut River in Vernon, is 40 years old. Since 2006, the plant has had highly publicized infrastructure problems, including the tritium leak, transformer fire and water cooling tower collapse.

In 2010, a tritium leak from buried pipes led to contamination of a well on the plant compound. Gov. Peter Shumlin who was a candidate for governor that year, spearheaded the maneuver in the Legislature that denied Entergy the right to seek a permit to continue operating the plant through 2032. Lawmakers and anti-nuclear advocates raised concerns about tritium and other radiological substances leaching into the river and misstatements by employees about the existence of underground pipes that leaked tritium into groundwater.

Vermont Attorney General Bill Sorrell appealed Murtha’s decision despite the state’s less-than-stellar track record in the Second Circuit of the U.S. Court of Appeals in New York City and the U.S. Supreme Court.

“We have strong arguments to make on appeal,” Sorrell said in a statement. “The district court’s decision improperly limits the state’s legitimate role in deciding whether Vermont Yankee should operate in Vermont beyond March 21, 2012. The court’s undue reliance on the discussions among our citizen legislators, expert witnesses, advocates, and their constituents has the potential to chill legislative debates in the future. Left unchallenged, this decision could make it harder for ordinary Vermonters to clearly state their views in future legislative hearings.”

The case goes to trial on Jan. 14. Entergy’s court filings show that the company will fight the appeal based on its original federal pre-emption arguments. The NRC’s decision to grant Entergy a 20-year license extension hurts the state’s appeal, legal experts say.

Meanwhile, the Public Service Board certificate of public good case has been wending its way through the review process.

The board recently rejected the Entergy’s proposed changes to the sale order, dry fuel storage order and certificate of public good for the Vermont Yankee Nuclear Plant. The dry fuel storage order barred the plant from storing spent fuel on the site generated after March 21 when the state’s permits for Vermont Yankee expired. The sales order prohibited the continued operation of the plant beyond that date without the board’s approval.

Entergy, the parent company of Vermont Yankee, sought to amend the orders because it has continued to operate the plant without state approval.

Vermont Yankee has 1,507 fuel rod assemblies submerged in a spent fuel pool, which was originally designed to hold about 350. Spent fuel must be kept under water in order to prevent the Zirconium cladding (the metal tubes that contain the fuel pellets) from igniting. The spent fuel rods can remain hot for several years.

Two years ago, Entergy and Vermont utilities failed to negotiate a power deal; instead Green Mountain Power, the state’s largest utility, has formed agreements with Hydro Quebec and Seabrook (N.H.) Nuclear Power plant and has moved ahead with renewable energy projects, including Kingdom Community Wind in Lowell.

The Vermont Legislature sought to assess a tax on Vermont Yankee in 2012 to pay for a variety of state programs. Entergy responded by filing another lawsuit.

The tax would raise roughly $12.5 million annually for the state, instead of the $5 million previously raised by the tax. The state has been unable to collect the money.


Judge rules for Entergy, says federal law preempts state authority over nuclear power


Vermont Attorney General appeals federal court decision

Vermont Attorney General’s scorecard in federal court

Entergy sticks to original preemption arguments in appeal filings

Public Service Board denies Entergy’s motion to amend orders


Entergy sues Vermont over generating tax


NRC halts new nuclear power licensing decisions over fuel storage

Anne Galloway

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