Business & Economy

Entergy files new lawsuit against Vermont, this time over diesel backup power permit

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

On Thursday, Vermont Yankee operator Entergy Corp. brought a new lawsuit against the state, this time over a critical piece of back-up equipment.

The Louisiana-based company is arguing yet again in U.S. District Court that the state is federally preempted from regulating the plant. The company wants the federal government to intervene so that it can begin construction on a back-up diesel generator for the site by June 11, 2013.

To comply with federal regulations, the nuclear plant must have an emergency source of power, in the case of a station blackout. The plant’s contract for that power is set to expire on Sept. 1, 2013; TransCanada, the owner of the Vernon Hydroelectric Station, is not renewing the contract.

Entergy sought a Certificate of Public Good from the Vermont Public Service Board to build an on-site diesel generator for the purpose of backup power. But on Wednesday, the corporation received strong indication that it would not receive a permit in time from the state’s quasi-judicial board, which is tasked with regulating power producers and utilities.

“On April 24, 2013, the PSB’s Hearing Officer issued a scheduling order that makes clear that the PSB likely will not issue a final decision before June 11, 2013 date on which Entergy must begin construction of the generator so that it may be fully installed by September 1, 2013,” Entergy attorneys wrote in their complaint for injunctive relief.

Entergy argues that federal and state laws conflict with each other in this case.

“Whereas the NRC requires Entergy to install a station blackout generator in order to ensure the safety of the VY Station, Vermont has failed to grant Entergy authority to do so in a timely fashion,” Entergy’s attorneys write.

Therefore, Entergy argues, the state is federally preempted under two counts of the constitutional Supremacy Clause by the power vested in the Nuclear Regulatory Commission by the Congressional Atomic Energy Act.

“Vermont law is in direct conflict with the NRC’s regulation, and stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

In addition to this suit, Entergy and the state of Vermont are currently litigating in the federal court of appeals over the Legislature’s power to shut the plant down, over a generation tax passed last legislative session, in the Vermont Supreme Court, and in front of the Public Service Board to provide a new Certificate of Public Good for the plant to operate for another 20 years.

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Andrew Stein

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  • Mike Kerin

    Once again this corporation wants to skirt around Vermont laws. Entergy is out of control!

  • sandra bettis

    some people have more money than brains….

  • John Greenberg

    Some clarifications:

    First, VY has had on-site emergency diesel generators for
    decades. The issue that Entergy took to the Board (and now, apparently, to the courts) arose because TransCanada has decided no longer to allow the Vernon tie to be used as an emergency backup and NRC’s regulations call on nuclear operators to have such a backup available.

    Second, the PSB has not ruled substantively one way or the
    other on the case, except to agree to open a docket and accept intervening parties. Entergy petitioned the Board
    last fall, and there has been a minor exchange of legal briefs concerning the speed with which the issue should be considered (partially due to confusion about when the Vernon Tie backup would become unavailable). A hearing officer has been appointed. Recently, he ruled that he would consider 2 issues: “These questions are “whether (i) the Board can and should grant permission for Entergy VY
    to install the generator when Entergy VY is not in compliance with existing Orders and CPGs and has not demonstrated that it is willing to comply with Orders of
    this Board, and; (ii) whether Entergy VY can make the required demonstration of necessity before a new or amended CPG for the operation of the VY Station is issued.”
    (Scheduling order, April 24, p.2)

    Third, the NRC’s job will be to determine whether the
    proposed backup generator fully complies with the its own regulations and accordingly, whether or not it is “safe.” The Board’s job, on the other hand, will be to determine whether or not the generator meets the “public good” standards in Vermont and otherwise complies with Vermont law. They will consider aesthetics, environmental impacts, need for power, etc. In other words, the two regulatory
    bodies will look at the same issue from entirely different vantage points.

    Ever since it first raised the point in Judge Murtha’s
    court, Entergy has been working hard to convert the Congressionally mandated dual regulatory system that has worked for ½ a century in the US into a single system where the federal government regulates safety (ha ha), and all other issues are unregulated, and left to companies and to power markets.

    • Coleman Dunnar

      Mr. Greenberg it would help if before you went in to your anti-nuke ramble you got your facts straight.
      Entergy’s plan to build an on-site diesel generator is for the purpose of backup power. This is in response to a NRC order for Mitigation Strategies to Respond to Extreme Natural Events Resulting in the Loss of Power at Plants. The NRC developed these in direct response to lessons learned from the nuclear accident in Japan. The NRC’s intent to harden US plants. In other words enhancing the safety of Vermont Yankee. Safety is the clearly under Federal jurisdiction. One has to wonder why this issue is issue was even brought before the Public Service Board. This generator is not being installed to produce power for sale but to serve as redundant backup in the event of loss of power to the plant. Following your logic if you wanted to install an emergency generator in your home you would apply for a CPG? If you recall the problem in Japan was caused by lack of redundancy in backup generation. None of the criteria that you stated “aesthetics, environmental impacts, need for power, etc”, the Board would apply in this case since this is an NRC order. You find it hard to believe but this is an instance of Entergy doing the right thing.

      • John Greenberg

        Coleman Dunmar accuses me of not having my facts straight, but fails to note any facts that I mistook.

        Dunmar is correct: the diesel generators are, in his words, “for the purpose of backup power,” or in my words above “to be used as an emergency backup.” If there’s a difference here, I’m missing it.

        Mr. Dunmar: where’s the beef?

      • John Greenberg

        Since Mr. Dunnar incorrectly accuses me of getting my facts wrong, it’s worth pointing out that his are seriously erroneous.

        According to the Entergy complaint, Entergy’s diesel generator would be a response to the NRC’s “Station Blackout Rule,” 10CFR 50.63, which dates from 1988, not to any newer, post-Fukushima ruling.

        The issue was brought to the PSB because any construction of OR modification of a generating facility in Vermont requires a CPG. (see complaint, p. 17) 30 VSA248(a)(2) has a specific exception for “electric generation facilities that are operated solely for on-site electricity consumption by the owner of those facilities.” which is why Mr. Dunnar’s analogy to a home generator is specious.

  • Kathy Nelson

    I get sick when I think of all the money the State of Vermont has wasted on this fight with VT Yankee just to cater to Shumlin’s nuke-o-phobia and grovelling to industrial wind developers. That money wasted could have gone to assisting Vermonters with insulating their homes and improving public transportation. VT Yankee will eventually be phased out or replaced with a more efficient reactor. Ripping VT mountains apart is not the answer to our energy needs. VTY is ruled by the feds and that has to change in DC, which takes time. Go to it nuke-o-phobes but please don’t forget Vermont has a lot more to lose if industrial wind leave Vermonters with a scarred and mutilated state.

    • John Greenberg

      “Vermont has a lot more to lose if industrial wind leave Vermonters with a scarred and mutilated state” than if VY melts down?? Really?

    • Norma Manning

      Well said Kathy. Vermont is behaving like a parent that changes the rules for every situation. They remove Act 250 from the process for Industrial Wind, even while they attempt to pile regulations on top of Act 250 in their “shoreline protection” legislation. Act 250 is now retroactive for existing oil pipelines even while electric and natural gas lines are given the ok to be buried in the floor of Lake Champlain. Solar fields cover up green fields and are invading lands set aside for nature preserves even as construction of a backup generator is being delayed on an industrial site! Legislation is blowing in the wind here in VT.

      • John Greenberg

        The state did not “remove” Act 250. The legislature wrote Act 248 decades ago for ALL utility projects, which uses the same criteria as Act 250, but gives the decision-making responsibility to the Public Service Board rather than to environmental boards.

        The gas lines you mention are in an Act 248 process right now, as is Vermont Yankee for its continued operations. New electric transmission lines also require one.

        • Norma Manning

          Champlain Hudson Power Express Inc aproved on April 18th.

          “Removed from the bill is language that would have required electric generation projects with a capacity greater than 2.2 megawatts to comply with Act 250 land-use criteria for a 15-month period ending on July 1, 2014. The chief aim of the proposed language was to give towns and municipalities more power in the application process for proposed energy generation projects. One of the key Act 250 criteria that large developments must conform to is a town plan.”…. reposted from

          • John Greenberg

            I don’t know what your first paragraph is supposed to mean.

            The second paragraph concerns a journalist’s shorthand summary of an earlier state of a law that didn’t pass. As I noted above, Act 248 applies and has applied to utility projects for decades, and includes language virtually identical to Act 250.

            I am not an expert in the field, but my understanding is that in Act 250 hearings, if a project contradicts an existing Town Plan, it MUST be rejected, whereas in an Act 248 proceeding, the Board may weigh that contradiction in its deliberations but still decide to accept the project. An earlier version of S 30 attempted to bring Act 248 decision-making into greater conformity with that in Act 250, but that language was removed from later drafts.

  • Randy Koch

    According to my well-informed source, Act 250 only very occasionally shoots down a project based on contradicting a town plan. To do so, the town plan language must be specific and regulatory whereas in practice town plans are generally written rather as “vision statements.” Regulatory terms like “shall” and “must” are found more often in zoning ordinances.

  • I think the issue with Entergy has more to do with them being dishonest ass-hats who have made it very clear their main motivation is profit and the public good is at best, a secondary concern. This issue has nothing to do with “Shumlin’s anti-nuke phobia” and everything to do with a company that regularly lies to the people and elected officials in Vermont.

  • Rob Simoneau

    I hope people see the bigger picture here. Yes the instillation of these generators is critically important as a back-up safety system. Please note this work is happening two year after the Fukushima Daiichi disaster. Please be aware this “safety effort” it is a reactionary response not a proactive response. The nuclear industry is learning as they go along, obviously too late for the Japanese, Ukraine and Russian people as well as some Americans. Anti-nuke phobia … not even close. If you are not afraid you are either ill informed or simply in denial. Vermont Yankee will soon experience a serious failure and please remember you have been warned, “phobia,” from a strict materials science and structural integrity point of view; you should be terrified. Currently the Japanese “estimate” it will take 40 years to decommission their reactors. The Japanese now are struggling with radioactive contaminated waters; 120 tons of water have leaked from storage reservoirs another 400 tons of contaminated water is leaking into groundwater, source NHK.