VERMONT SUPREME COURT ASKED TO SHUT DOWN VERMONT'S OUTLAW
By William Boardman Email address removed"> Email address removed
The simple, and perhaps temporary reality is that the owner of the Vermont Yankee nuclear power plant, the Entergy Corporation of Louisiana, continues to operate the 40-year-old facility illegally. A complaint presently before the Vermont Supreme Court seeks an injunction ordering the plant to shut down immediately and to remain shut down until it is in full compliance with the law.
The New England Coalition on Nuclear Pollution (NEC) filed the complaint for injunctive relief against Entergy with the Supreme Court on December 4, based on an earlier 30-page decision issued by Vermont's Public Service Board (PSB) on November 29. The PSB denied Entergy's request to modify a 2002 agreement it had chosen to violate, pointing out that any hardship Entergy was suffering was of its own making.
Vermont Yankee has been controversial since before it went online in 1971 and grassroots efforts to shut it down have been joined over the years by the Vermont legislature, the governor, the attorney general and a variety of environmental organizations. Opposition increased after the melt-downs at Fukushima, where the reactors had the same generic General Electric design as Yankee.
This latest development in the legal entanglements of Vermont Yankee has its roots in the agreements Entergy made in 2002 when it bought the nuclear plant. At that time, the PSB's final order in docket #6545 approving the purchase included several conditions, among which number 8 stated:
"Absent issuance of a new Certificate of Public Good or renewal of the Certificate of Public Good issued today, Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. are prohibited from operating the Vermont Yankee Nuclear Power Station after March 21, 2012." [emphasis added]
At present, Vermont Yankee is operating without any Certificate of Public Good, since the PSB has neither extended the original one nor approved a new one. In its November 30 order, the PSB noted that Entergy had chosen to continue operating Vermont Yankee even after the PSB pointed out that the explicit terms of continued operation had not been met. The PSB is expected to decide the Certificate of Public Good question in the latter part of 2013.
Can't Meet the Standard? Change the Standard!
In response to the PSB order, Entergy officials told Reuters the decision would have no immediate impact on the operation of Vermont Yankee. Tacitly acknowledging Yankee's non-compliance with PSB orders, James Sinclair of Vermont Yankee said, "We had asked for amendments [of PSB orders] so that our operations would conform to those orders."
As a party to these PSB proceedings, the NEC has the right under Vermont law to seek relief directly from the Supreme Court. The NEC has asked the court to hold an expedited hearing on the injunctive relief, calling continued non-compliant operation "entirely egregious." In its complaint, the NEC states:
"The Court should find that Entergy is operating the plant in direct violation of Condition 8 of the Sale Order in Docket 6545" and enjoin Entergy from continuing to operate the Vermont Yankee plant until the Board [PSB] has rendered a decision on Entergy's application for a new or amended CPG [Certificate of Public Good]."
The PSB noted in its order of November 30 that its 2002 order had already been amended once to authorize Entergy "to own and operate Vermont Yankee beyond March 21, 2012, solely for the purpose of decommissioning." [emphasis added]
That PSB order also addressed on-site storage of spent nuclear fuel. Nuclear plants across the country are generating more spent fuel the longer they keep running, and some are running out of storage space. They have nowhere to send it.
The Board denied Entergy's motion to amend the previous order under docket #7082, which has conditions that "limit the amount of spent nuclear fuel that Entergy VY may store at the Vernon site to amounts generated from operation up to March 21, 2012." Any spent fuel generated after that date and stored at Vermont Yankee would be a violation of the order.
Vermont Yankee's Other Legal and Regulatory Issues
While people don't seem to keep score on these things, if Vermont Yankee isn't one of the most harried nuclear power plants in the country, then others must be all but smothered. A sampling of Vermont Yankees issues and challenges includes:
- Operating without a discharge permit for the hot water it dumps regularly into the Connecticut River. Yankee continues to operate under a permit that expired in 2006, but is considered valid while litigation and federal rules-making processes play themselves out;
- Listed as one of New England's worst polluters in 2012. Yankee made the Toxic Action Center's "Dirty Dozen" list for the fourth time in a decade. Also on the list are the Pilgrim nuclear power plant in Massachusetts, the Public Service Company of New Hampshire, and the Enbridge Tar Sands Pipeline that runs through Maine, New Hampshire, and Vermont.
- In another regulatory proceeding, Vermont Yankee is seeking permission from the Nuclear Regulatory Commission to build a diesel generator on site at the nuclear power plant to provide backup power in the event of a power failure. Its contracts with current backup providers expire in 2013, with little chance of being renewed.
- Although Entergy won a federal lawsuit against the state of Vermont in January, the state has appealed and the case is waiting for a hearing.
- In September, Entergy sued the state again in federal court over a tax hike that passed the legislature and put Yankee's tax rate closer to other electricity generators. That case was dismissed.
Waiting for the Vermont Supreme Court to Weigh In
At the Conservation Law Foundation, which is one of the many parties to the Yankee proceedings before the PSB, senior attorney Sandy Levine recently summed up her perspective on Entergy's northernmost holding, under the headline, "Vermont Yankee is in a Tight Box" --
"Entergy knew and agreed to the commitment not to operate after March 2012 and had ample time to challenge or seek amendment earlier. Entergy didn't.
Instead, Entergy chose to defy the Board's orders, walk away from its commitments, thumb its nose at Vermont and just continue to operate. It then asked the Board to change the prior orders, claiming hardship and that being held to its prior commitments was somehow unforeseeable.
The Board roundly rejected each of Entergy's claims. Any hardship is Entergy's own making based on its own tactical decisions, and does not justify changing the rules after the fact.
Entergy's in a very tight box. It cannot prove to the Board that it is a trustworthy operator when at the same time it is operating in bold defiance of the same Board's orders."
One of Entergy's more immediate tasks now is to respond to the New England Coalition's request for an injunction. According to Vermont Public Radio, "An Entergy spokesman said the company is evaluating the New England Coalition motion and will file a response with the court. The company said it's focused on operating Yankee in a safe and reliable manner." But unless Entergy is more persuasive than it was before the Public Service Board, the Vermont Supreme Court could shut down Vermont Yankee at least for the time being.