Citizens' Group Petitions to Intervene in Entergy Lawsuit | News | Seven Days | Vermont's Independent Voice

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Citizens' Group Petitions to Intervene in Entergy Lawsuit


Published May 5, 2011 at 1:03 a.m.

The antinuclear group New England Coalition announced Wednesday it has filed a motion in the U.S. District Court seeking to intervene in Entergy's attempt to keep Vermont Yankee running beyond 2012.

Entergy is suing Vermont in federal court in an attempt to keep Vermont Yankee running beyond 2012, when its state certificate of public good expires. Earlier this year, the U.S. Nuclear Regulatory Commission gave the go-ahead for VY to operate another 20 years -- to 2032.

A 26-4 vote taken last year by the Vermont Senate put the kibosh on Entergy's efforts to have the Vermont Public Service Board hear its case to stay running.

Last month, Entergy sued Vermont and argued that neither the Vermont Legislature nor the Vermont Public Service Board has the authority under federal law to effectively shut down a nuclear power plant. It is also seeking an injunction to ensure that VY can continue operating while the case is being heard by U.S. District Court Judge J. Garvan Murtha.

Entergy also argues that any binding memoranda it signed at the time of the sale in 2002 were essentially null and void because of a 2006 law that gave the Vermont Legislature the authority to say yea or nay to VY's operations beyond 2012.

After that 2006 vote, VY experienced several mishaps, including a dramatic cooling tower collapse and a tritium leak that shook the confidence of some Vermonters -- and politicians -- and eventually led to the 2010 Vermont Senate vote.

Murtha is holding a status conference on the case tomorrow. It's unlikely Murtha will rule on the NEC's request at that time. Given Murtha's past rulings, it would appear he is likely to rule in favor of Entergy's request for an injunction.

“NEC promised at the time of the Senate vote not to approve relicensing of Vermont Yankee to do all that it could to defend the state’s decision, should it ever be challenged in court,” said NEC adviser Raymond Shadis. "We are deeply concerned that Entergy seeks not only to undermine the authority of the legislature, but also the Vermont Public Service Board, to whom Entergy swore it would never invoke federal preemption. New England Coalition brings to this case the unique perspective of 40 years of citizen advocacy, and, since Entergy’s purchase of Vermont Yankee, more than 10 years of continuous litigation on Vermont Yankee issues."

NEC represents members in affected neighboring communities of New Hampshire and Massachusetts as well as Vermont, Shadis adds. Vermont Attorney General Bill Sorrell, meanwhile, is only representing Vermont citizens. Communities in New Hampshire and Massachusetts are within the federal 10-mile emergency planning zone (EPZ) that would be evacuated in the event of an emergency at the nuclear power plant. 

“NEC has a very important role to play in this litigation,” said NEC's attorney, Jared Margolis of Jericho. “NEC has provided testimony and arguments before the Public Service Board indicating that Vermont Yankee is a poorly managed and deteriorating nuclear power plant that cannot be reliably operated past 2012. NEC believes that its years of participation in these matters have led to an understanding by Vermont legislators and the public that the economic and land-use-related risks of continued operation are too high to warrant relicensing. These are nonpreempted grounds for the state finding that the continued operation of this plant is not in the public good, and the U.S. Supreme Court has held that the state does retain authority over these traditional state concerns. Entergy must not be allowed to eviscerate the state’s ability to protect the interests of Vermont.”

When the Vermont Public Service Board investigated the sale of Vermont Yankee to Entergy, NEC argued that the regulators should not allow an out-of-state merchant owner to buy the plant because the PSB would likely lose any "state control" or regulatory leverage over the new owner.

Prior to Entergy's ownership, Vermont Yankee was owned by a consortium of mostly in-state, regulated utilities who had to answer to the PSB for all aspects of their operations and were governed by state law. Entergy? Not so much.

"Thus, the state's right to consider license renewal at issue in this litigation exists in part because the NEC raised the issue of loss of local control," states the NEC's brief.

The NEC was party to the original legislative discussions around the construction of Vermont Yankee, and participated in the original permit deliberations. It was also the only group to intervene and oppose Entergy's request before the U.S. Nuclear Regulatory Commission to boost Vermont Yankee's power output, and has participated in almost every permit review at the state and federal level since VY first went online.

In 2009, the NEC raised concerns before the PSB about whether Entergy lied to regulators about the existence of underground pipes -- pipes that eventually leaked tritium into the groundwater, the Connecticut River and at least one on-site drinking well. That well was taken out of service before the tritium was detected.

At the time, the NEC asked the PSB to impose sanctions on Entergy for misleading regulators and other parties on the docket involving VY's request to continue operating beyond 2012. In 2003, the PSB fined Entergy $50,000 for withholding information from NEC and flouting PSB rules.

"NEC's record as a Vermont Yankee adversary and public interest advocate presenting nuclear safety and environmental concerns and sustainable energy and conservation advocacy, at every legislative and legal level, is unequaled," the group states in its brief. "NEC provides a necessary public interest perspective regarding the history and technical aspects of the Vermont Yankee operations, which is not adequately addressed by the state of Vermont."