Entergy may be closing Vermont Yankee, but litigation goes on

Vermont Yankee, photo from the Nuclear Regulatory Commission
Vermont Yankee, photo from the Nuclear Regulatory Commission

Entergy Corp. will grant the wishes of many Vermont officials by closing the 41-year-old Vermont Yankee nuclear plant in 2014, but the company’s relationship with the state is far from over.

The Louisiana-based company and the state are embroiled in four separate lawsuits, and the specifics of those cases shifted last month when Entergy announced the plant’s upcoming shutdown.

The first case is Entergy’s application in front of the Vermont Public Service Board for a new operating license, called a certificate of public good. The second case is an Entergy appeal in federal court of the state’s generation tax. The third lawsuit is Entergy’s appeal in Vermont Supreme Court of a Public Service Board decision. In the fourth case, Vermont Attorney General Bill Sorrell must decide within a 90-day period — which began Aug. 14 — whether to appeal a U.S. Court of Appeals decision that the Vermont Legislature is federally preempted from shutting down the plant.

“There are a lot of Entergy balls in the air right now,” Sorrell said.

Certificate of Public Good

For more than a year, Entergy sought a certificate of public good from the Public Service Board to operate Vermont Yankee until March 21, 2032.

The plant’s initial 40-year operating license expired March 21, 2012, and the U.S. Nuclear Regulatory Commission extended the plant’s federal license to operate for another 20 years.

But on Aug. 27, Entergy announced that it would close the plant before the end of the fourth quarter in 2014. That same day, Entergy resubmitted its application with the Public Service Board, seeking the authority to operate the plant through Dec. 31, 2014.

Vermont AG William Sorrell. VTD/Josh Larkin
Vermont AG William Sorrell. VTD/Josh Larkin
The Department of Public Service, which is charged with representing the interests of Vermonters in this case, has requested extra time to evaluate the amended application.

“We’ve asked the board for a 30-day extension to evaluate what the best process for moving forward is,” said Chris Recchia, commissioner of the department. “We’re pleased that there is a definite closure date proposed.”

Entergy executives said last month that they plan to close the plant at the end of its 18-month refueling cycle, which would be in early October 2014. The amended application, however, asks for the power to operate roughly three months after that date.

“We’re still evaluating that,” Recchia said of the discrepancy. “The fuel rods don’t stop working on the 18-month anniversary, so I’d imagine there will still be some ability to generate power.”

Energy generation tax

On the same day Entergy announced it was closing Vermont Yankee, the company went head-to-head with Sorrell in the U.S. Court of Appeals over a tax hike the Legislature approved in 2012.

The only tax Entergy pays to the state of Vermont is a generation tax based on a kilowatt-hour charge. In September 2012, Entergy sued the state for raising this tax to $0.0025, which is the same generation tax rate Connecticut applies.

The new tax raises roughly $12.5 million for the state, versus the roughly $5 million the former tax raised. In part, the increase was meant to make up for expired agreements with the state that funneled roughly $6 million into Vermont’s Clean Energy Development Fund each year.

Entergy sued the state for four constitutional violations. But, at the end of October, federal Judge Christina Reiss dismissed the case under the Tax Injunction Act, which prevents federal courts from intervening with the collection of state taxes.

While Entergy lawyers argued that the “tax” was a veil to “continue the expired contractual payments,” Reiss ruled that the tax was just that: a tax.

In the court of appeals, Entergy argued once again that the generation tax was not a tax and is unconstitutional.

“We’re just waiting for a decision from the appeals court, and it’s difficult to predict how long the court will take with it,” Sorrell said.

Vermont Supreme Court

When Entergy announced it was closing Vermont Yankee, the Supreme Court asked Entergy to brief the justices about why its appeal of a Public Service Board decision to open a new case for its initial permit application was not now moot, as the company had amended its application.

“The issue on appeal at the Supreme Court has to do with whether or not Vermont Yankee is operating in violation of a board order,” explained Geoff Commons, director of public advocacy for the Department of Public Service.

Entergy says that its appeal of the Public Service Board’s decision is not moot because its attorneys argue “a dispute thus remains as to whether the VY station’s operation … on each and every day since March 21, 2012, was lawful … as well as whether future operation through December 2014 is lawful.”

The Public Service Department says there is no such dispute. Its attorneys argue that the case was moot before the announcement of the plant closing and remains moot.

“No such controversy has ever existed,” Commons wrote in a brief to the justices. “The Public Service Board (“Board”) has never ordered Entergy to shut down the VY Station.”

The briefs were submitted last week, and the Supreme Court justices have not made a decision or set a date for a hearing on this matter. For more, read here .

Sorrell’s 90-day countdown

Almost two weeks before Entergy announced it was closing Vermont Yankee, three justices from the U.S. Court of Appeals ruled that the Vermont Legislature is federally preempted from shutting down the plant.

After U.S. District Court Judge J. Garvan Murtha made the same preemption ruling in January 2012, Attorney General Sorrell appealed to the higher court. In a 56-page decision, the appellate judges upheld the crux of Murtha’s ruling in favor of Entergy Corp., Vermont Yankee’s parent company.
The judges agreed that the Legislature was chiefly motivated by concerns of radiological safety when it created two laws aimed at regulating Vermont Yankee. Safety falls under the purview of the U.S. Nuclear Regulatory Commission — not state legislatures.

The judges did, however, reverse Murtha’s determination that the state had violated the Constitution’s dormant Commerce Clause when it attempted to work out an advantageous power pricing agreement for state entities. This ruling means that Vermonters do not have to foot the bill for Entergy’s legal expenses, which are estimated at more than $5 million.

Sorrell was unhappy with the federal preemption ruling, but was relieved by the court’s decision to relieve Vermont of the legal fee obligation. He now has roughly 60 days left in a 90-day window to appeal the decision to the U.S. Supreme Court.

Sorrell said that although Entergy is closing the plant, that doesn’t mean the decisions of the appellate justices are meaningless.

“Questions of decommissioning and the state’s authority and legislative authority related to decommissioning those are also brought very much to the floor,” he said.

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  • Bob Stannard

    You know how the NRC describes each and every incident that occurs at a nuclear plant as a “lesson learned”?

    Well, what Entergy is doing in Vermont should be a lesson learned for every state in this country where Entergy is doing business. Entergy is one very litigious corporation that will do anything and say anything to get its way.

    When they are found out they turn on you like a rabid dog. Nice bunch of people. They have plenty of lawyers, too.

    • Mike Kerin

      Bob, well said and true.

  • Elisabeth Hebert

    Mr. Stannard is right. Only that it’s easier to deal with a rabid dog!

  • Coleman Dunnar

    Even a good dog when it is backed in to a corner will come out snarling…. Keep blaming the victim Bob it serves you well……

    • Bob Stannard

      Mr. Dunbar, let’s put your “victim” comment in perspective shall we?

      Vermont’s utilities sold the VY plant to Entergy in ’02, because they were perceived as the strongest buyer. They bought the plant with much fanfare and goodwill.

      Shortly after purchasing the plant they came before the legislature and asked if they could uprate the plant by 20% and make more money. The State welcomed them with open arms and they enjoyed a very good working relationship with the State.

      Then in ’07 they allowed their cooling tower to collapse, which rocked many people, but not then Gov. Jim Douglas, who in spite of this mishap still supported Entergy wholeheartedly.

      Then a year later, after saying they fixed the cooling towers they nearly collapsed a second time. This event still did not shake the faith of Gov. Douglas.

      Then, Entergy tried to pull off a transparent scheme to spin off its aged plants that were going to require 10’s of millions in maintenance. They wanted to shelter the parent company, Entergy, from liability and thus create a shell corporation that would have done just that.

      It was at this point that even the unwavering Gov. Douglas first started to show some concern, but still did not abandon Entergy.

      Then came the lying before the PSB and the pipes that we were told did not exist began leaking. At this point even Gov. Douglas, Entergy’s best friend in Vermont, saw his knees buckle and his support wane.

      Entergy the victim? I don’t think so, but maybe they could be considered to be a victim of their own self-inflicted wounds. Everything that has occurred in Vermont to destroy the good working relationship that Entergy once enjoyed is Entergy’s own fault.

      To imply otherwise is simply not true.

  • david klein

    Decommissioning VT Yankee as soon as safely possible will provide years of work for skilled workers there. If Entergy cared about it’s workers, then they would do this rather than let the nuclear waste sit in open pools there for 60 years, when Entergy probably won’t even exist and the burden will fall on all Vermonters. Whatever the State can do to force Entergy to decommission VT Yankee by putting the nuclear waste in dry casks as soon as safely possible, I support.

    • Bob Stannard

      You are correct.

    • Howard Shaffer

      Typical anti nuke scare story!!!

      After the last shutdown, the fuel currently in the reactor would be removed to the Fuel Pool in the normal fashion. After 5 years the heat generated by the fuel will have decreased to the point where it can be air-cooled. All the fuel in the pool will then be moved to dry casks.

      The whole plant structure will then be mothballed, which means there will continue to be monitoring, maintenance, and security, for both the plant and the Dry Casks.

      Governor Shumlin’s “rotting hulk” on the river bank is absurd political spin.

      • Bob Stannard

        Howard, correct me if I’m wrong, but I seem to recall that the NRC has said that leaving fuel in the pool for an extended period of time was acceptable to them. I believe they’ve said it can stay in the pool for 60 years.

        • Howard Shaffer


          Because the fuel CAN stay in the pool for 60 years, that does not mean that it WILL. It does not mean that the NRC will allow it when they approve the Decommissioning plan.

          To leave fuel in the pool for many years after 5, just for convenience, is ridiculous from a safety point of view. To my knowledge there is no study that proves fuel more than 5 years from operation can be air cooled in the pool, IF IT LOST ALL OR SOME OF THE WATER. So as long as there is fuel in the pool, a supply of water must be available, along with some cooling-which continually decreases with time. Dry Casks are proven safe storage.

          At VY, a BWR with the fuel pool in the Reactor building, the building can’t be torn down until the fuel pool is empty. Unlike Maine Yankee and Yankee Rowe, PWRs, with the fuel in a separate building.

          I have asked NRC Region I to respond the you assertion.

          • Bob Stannard

            Well, I look forward to what the NRC will say now. Previously, not only have they indicated that they would allow fuel to stay in the pool for 60 years, they’ve encouraged it.

            You state that dry casks are a proven, safe storage. I will grant you that they are safer than keeping the fuel in an underprotected pool, but safe for how long Howard? 100 years from what I’ve heard. How long is the material inside the cask hot? A few hundred thousand years, I believe.

            Maybe I should go read Dr. James Conca’s new piece in which he states radiation isn’t so bad. Good lord, you pro-nuke folks certainly do balance out the radical anti-nuke crowd.

            The following is from the NRC’s website:

            The NRC believes spent fuel pools and dry casks both provide adequate protection of the public health and safety and the environment. Therefore there is no pressing safety or security reason to mandate earlier transfer of fuel from pool to cask.

    • Tom Clegg

      David that sounds nice, but the truth is that Entergy will put the spent fuel in dry cask as soon as they can. If you leave it in the pool they have to pay to run the cooling in the pool, they have to pay operators to check the pool, they have to pay for maintenance on the pumps and motors. By going into dry cask the only thing they will have to pay for is security witch they will need any way and an HP to go by once a day to check Rad. levels. YES it is a business decision and you can spin that anyway you want. A business that is not selling a product will not keep overhead that it does not have to (that means as many workers that are not needed. So if your are looking for a rainbow out of something you are happy to see happen Don’t expect one of those unemployed workers to come up and give you a hug. you made your bed now go lie in it!

  • Sally Shaw

    Oh really, Howard? “After 5 years the heat generated by the fuel will have decreased to the point where it can be air-cooled. All the fuel in the pool will then be moved to dry casks. “…is that a promise, Howard? Sounds like the DOE promise back when the Vermont Yankee reactor was not yet built that they would remove all the spent fuel from the site after 5 years, the basis on which the VT Legislature voted to allow the operation of VY. Lies, lies, lies. VY needs to be decommissioned immediately, and all fuel placed in dry casks as soon as humanly possible. The site should be returned to a greenfield (hopefully covered with solar photovoltaic panels) as soon as possible. NO to Safestor. An unstaffed reactor with fuel in the fuel pool is a continuing risk.

    “On the morning of Sunday 7 January 2007, a radioactive water leak, which could have caused a major disaster, was only averted by a chance decision to wash some dirty clothes at the Sizewell A nuclear reactor in the U.K. The fuel pool lost more than a foot of water, yet no alarms sounded in the main control room. One of the contractors working on decommissioning the Sizewell A nuclear power station on the Suffolk coast was in the laundry room when he noticed cooling water leaking on to the floor from the pond that holds the reactor’s highly radioactive spent nuclear fuel.

    As much as 40,000 gallons of radioactive water spilled out of a 15ft long split in a pipe, some leaking into the North Sea.

    By the time of the next scheduled safety patrol, the pond level would have dipped far enough to expose the nuclear fuel rods – potentially causing them to overheat and catch fire sending a plume of radioactive contamination along the coastline.”

    We don’t need the stress of worrying about aging components or human error at VY for another 60 years.

    • Howard Shaffer


      You are confusing possibilities with promises.

      When I wrote the fuel would be moved from the fuel pool after 5 years, the minimum, I wrote of the engineering possibility. I’m in no position to promise future activity.

      Speaking of future activity, when VY was built and it was stated that the intent was to send the used fuel offsite after 5 years, that was the Federal Government’s intent. So it was true that it was the intent. There was fuel reprocessing going on at the time. Then the government changed its plans. That doesn’t make what was true at the time a lie. It was just a policy that was changed.

      What makes you think that when all the fuel is out of the reactor vessel, and the plant is in SAFESTOR that there will be no one monitoring it? You must believe the Governor’s “rotting hulk on the banks of the river” line. If you believe that, come on up to Enfield. There is nice new bridge over the lake for sale.

    • Howard Shaffer
  • Tom Clegg

    Sally you have to be kidding me. First why is anyone washing clothes near the spent fuel pool. If this was true how would they know that the water was from the pool and not leaking from the washing machine? Operators make trips to inspect the spent fuel pool about every hour to every two hours. The spent fuel pool temputure is watched. So if you loss enough water the temp. goes up, It would have been noticed. The other alarm would have come from the radiation monitures. Pluse how come you have to go to a far out there anti nuke site to find this. If some thing like this happened like the site wrote it up it would have been all over the papers and TV. I’m shure something minor happened and it was blown up to fit the anti nuke the sky is falling down story.

    • Bob Stannard

      I think the point that Sally is making is that the alarms that you say should’ve gone off, didn’t go off. It was only by chance that an employee happened to be in the building and caught it.

      The Guardian is a highly respected paper. Granted, it’s not Fox News, but it’s pretty good.

      Also, you might give some thought to turning on your spell check.

      • Tom Clegg

        Bob I have read your blogs before. So I know where your coming from! Nice job to try to discredit me because I was not at a computer that I could use spell check easily. But now I am. If the Guardian is so highly respected, how come when I go on the web and type in Sizewell nuclear power plant leak in the spent fuel pool. The only reference to this incident is The Guardian and one other environmental paper,s site, which quotes the Guardian. If this incident really happened the way it was written I would think I would have found a lot more sites about it. Bob How come you didn’t answer the questions I asked. Nobody washes clothes near a spent fuel pool! How did that person know that was water from the spent fuel pool. Bob you are just assuming that what Sally wrote that she got from the Guardian is word for word true. Bob you know what happens when you assume. I have worked in nuclear power plants for 30 years and Not behind a desk! I have 15 rem life time. I know how a nuclear power plant works. Therefor I know that those alarms one might of failed BUT NOT all of them. So the spent fuel might have lost water but not the way it was written!

        • Bob Stannard

          I wasn’t there. You talk like you were there but you weren’t. Obviously the reporter found it credible.

          • Tom Clegg

            Bob you are right I wasn’t there. With that being said I do have a nuclear background and therefor have a better idea than you on how a nuclear power plant works. if you have a nuclear engineering degree, been in the nuclear navy, or worked in a nuclear power plant I will have to apologize. But not till than

        • John Greenberg

          ” how come when I go on the web and type in Sizewell nuclear power plant leak in the spent fuel pool. The only reference to this incident is The Guardian and one other environmental paper,s site”?

          When I googled, I got a Wikipedia article with the following: “The power station was shut down on 31 December 2006.[3] The Nuclear Decommissioning Authority (NDA) is responsible for placing contracts for the decommissioning of Sizewell A, at a budgeted cost of £1.2 billion.

          On January 7, 2007 a contractor working on the decommissioning of the station noticed water leaking on to the floor of the laundry where he was washing his clothes. The water was found to be cooling water from the pond that holds the reactor’s spent nuclear fuel which had dropped more than 1 foot (0.30 m) without activating any of the alarms. It is estimated that up to 40,000 gallons (151,500 l) of radioactive water had leaked from a 15 feet (4.6 m) split in a pipe with some spilling into the North Sea. According to the HM Nuclear Installation Inspectorate’s report of the incident, without the chance intervention of the contractor, the pond could have drained before the next scheduled plant inspection. If the exposed irradiated fuel had caught fire it would have resulted in an airborne off-site release of radiation.[6]”

          The footnote is to the Guardian, which is a (perhaps the) major British newspaper.

          I suspect if you’re interested, you could track down the HM Nuclear Installation Inspectorate report mentioned.

          • Tom Clegg

            John to make clearer what I meant. Yes you can find it on Wikipedia, but you have to go down to the about 4 sections before it was mentioned. How come when it happened if it was that bad non of the papers in this country ran it? Not the Times. If something happens in a nuclear power plant that bad it usually grabs the attention of all the media. Now as far as what is wrong with that article. Spent fuel pools in this country the suction and discharge for cooling the water are located at the top of the pool. So that you can only loss about 3feet of water in the pool if there is a crack or split in the piping of the spent fuel pool. There is about 45 feet of water from the top of the pool to the top of the spent fuel. Our operators check the spent fuel 3 to 4 times a shift. That would be about every 3 hours. I do not know exactly how the UK nuclear power plants work but this one is a water cooled PWR, so it should be some what the same. As far as the water draining and the fuel catching fire as Howard put it a TYPICAL ANTI NUKE SCARE STORY.

  • david klein

    Howard, it seems we agree on the matter of safety regarding leaving the spent fuel in open pools for more than 5 years, ( ie. 60 years ). Please let us know what you find out from the NRC Region 1 regarding this.
    If the NRC does in fact allow or encourage the spent fuel to stay in pools for 60 years, what should we all do about it?

    • Howard Shaffer


      I will let you know what I hear from Region I. I have met the Public Affairs staff at several local meetings. Have any of you tried to do this?

      The NRC statement about the Fuel Pool and Dry Casks being equally acceptable was in a DIFFERENT CONTEXT. That context was operating plants. Nuclear opponents were pushing for removal of all fuel more than 5 years from operation to be in Dry Casks. This is in a fully staffed plant. Some plants have had licenses renewed, and are on the road to operating 60 years. The statement makes sense in that context. Actually, if a plant operates for 60 years, and then the last fuel must stay in it for 5 years, the pool structure itself will be more than 65 years old, when the years from when the pool was built to the beginning of plant operation are added.

      Moving fuel from the pool to Dry Casks is an expensive operation. It is more economical to do it as few times as possible.

      Yes, cost plays a roll. Ask wind farms how long they would be in business with NO subsidies.

    • Tom Clegg

      David you are assuming something that is NOT going to happen. So you want to know as someone who has no clue about how a nuclear power plant works can do something to make a governing body that knows what they are doing (the NRC) when in your misguided opinion they are not doing their job what you can do? Why don’t you stand in front of their table at the next meeting. It worked good last time you did it. Also it made you look intelligent. BTW knock the anti nuke chip off your shoulder!