By all accounts, when March 21 comes and goes, the Vermont Yankee nuclear power plant will still be cranking out electric power, just as it has done for 40 years.
That appears to be the immediate effect of federal court Judge J. Garvan Murtha's Jan. 19 ruling - that it can continue operating after its initial license expires in March. Beyond that, though, many questions linger about whether the Vernon plant's operating future will be measured in months, years or decades.
Even Vermont Yankee supporters who cheered Murtha's decision as a victory sense the uncertainty.
“There's a general sense of relief, but there's still concern that the state can appeal and what the Public Service Board's role is,” said Jeffery Wimette, business manager for International Brotherhood of Electrical Workers Local 300, the union that represents Vermont Yankee workers.
Among the questions:
• Will the state appeal the decision that said the Vermont Legislature lacked the authority to keep the nuclear power plant from operating?
• Will Vermont Yankee owner Entergy Corp. appeal the portion of Murtha's ruling that said the state Public Service Board does have the authority to decide whether the plant can operate by deciding whether it receives a certificate of public good?
• What will the state Public Service Board do - resume hearing Entergy's request for a Certificate of Public Good immediately or wait until the court case is done? Will the panel be inclined to grant that approval and, if not, on what basis?
• What will the Legislature and Vermont Yankee-foe Gov. Peter Shumlin do? They might not have the authority to shut the plant down, but bills are brewing that would increase taxes and fees the plant pays to the state. Would those efforts force the plant to close?
Answers to some of the questions could come soon while others take years.
Attorney General Bill Sorrell said last week he hadn't decided whether to appeal the decision, but he sounded as if he were leaning that way. “I would say in my view and from talking to legislators and others there are some very strong reasons to look at an appeal,” Sorrell said.
Will the state appeal?
Opinions about whether the state should appeal Murtha's decision fall like this: Those who want the plant to shut down tend to think Murtha's decision was flawed and the state should appeal. Those who believe the plant should keep operating think Murtha made a sound decision and the state would be crazy to argue the case further.
“I think we've spent enough money,” said Rep. Mike Hebert, R-Vernon, whose town is home to 75 of Vermont Yankee's 650 employees and the plant itself. The state has spent more than $200,000 defending the case, Sorrell has said, and could be liable for Entergy's legal costs if it loses an appeal.
“I think it's worth giving some serious consideration to taking a look at an appeal,” said House Speaker Shap Smith, D-Morristown, who is a lawyer and cited concerns about how the decision could affect the Legislature.
The decision whether to appeal the case rests with Sorrell. Although he faced a barrage of criticism for his record in high-profile court cases and the ensuing costs to the state, he sounded in an interview last week like he was building a case for appeal.
The reasons, he said, extend well beyond Vermont Yankee with a potential impact on the way the Legislature and the Public Service Board operate.
Judge Murtha relied heavily in his decision on the Legislature's intent in considering Vermont Yankee's future. More than half the 102-page ruling was filled with references to lawmakers' statements that they were concerned about the plant's safety - something that is the purview of the federal government, not the state.
Attorney General Sorrell contended that could stifle lawmakers from speaking about pending bills for fear of how it will be used in court.
“In other issues going forward, does this have a chilling effect?” he questioned. “It could bring us to a situation where legislative leadership would have to tell its members to stay quiet.”
Smith, the House speaker, agreed. He said he met with Sorrell last week and shared his opinions.
Murtha also ruled that the state Public Service Board can't take into consideration whether Vermont Yankee would give it favorable power prices. Sorrell argued that that's something the Public Service Board here and its counterparts in other states routinely consider as they set parameters on energy producers, whether it's wind, solar, hydro or nuclear.
“What impact does that have on the Public Service Board in the future?” Sorrell asked.
Gov. Shumlin was tight-lipped about the case last week, but characterized the ruling as “a disappointing decision that doesn't make a lot of sense.”
The attorney general has 30 days from the ruling to decide whether to appeal the case. He said he likely won't wait until the last minute, but neither will he rush the decision. He said he will be consulting with the governor, House Speaker Smith, Public Service Commissioner Liz Miller and Senate President Pro Tempore John Campbell, among others.
The governor said the cost of appealing - and the potential of having to pay Entergy's legal expenses if the state loses - are factors being weighed, but he said, “That isn't the first consideration.”
Whatever happens, the case is being watched nationally, as other states grapple with how much say they have in regulating nuclear power plants.
Judge Murtha's decision indicated that the Public Service Board still had a role in deciding whether Vermont Yankee could operate, something Entergy Corp. had sought to quash in its arguments.
Some observers wonder if the company will appeal that part of the case. If the company did and succeeded, that would leave the answer entirely up to the federal Nuclear Regulatory Commission to decide whether the plant can keep operating. The NRC has already granted Vermont Yankee a 20-year extension, though that decision is being challenged in a Washington, D.C., court by the state and the New England Coalition on Nuclear Pollution over its lack of a Clean Water Act permit.
Entergy Corp. spokesman Mike Burns said last week the company would not comment on appeal considerations or anything else related to the plant's continued operation. In response to questions, he said, “Our attention remains focused on analyzing the judge's ruling.”
The Public Service Board was once a place Vermont Yankee opponents wanted to avoid, worried that the three-member, quasi-judicial panel would rubber-stamp Vermont Yankee's request for a certificate of public good. Now, they turn to the board with hope that it could stop the plant.
“I have a lot of confidence in the Public Service Board,” the governor said last week at a news conference.
The Public Service Department asked the Public Service Board last week to schedule a pre-hearing conference after Feb. 24, when it will be clear whether either side is appealing the decision.
“The department feels it's important to set a date to begin the process,” Miller said.
The board started taking testimony on Vermont Yankee's 2008 request for a new Certificate of Public Good, but put that on hold in 2010 as legislators declined to give the board the go-ahead to make a ruling in the case.
Shumlin said if there are appeals, it's unknown whether the board would resume hearing the case or wait until the appeals are resolved, a process that could take years.
Richard Saudek, a former Public Service Board chairman, said, “I would think the board holds off until the appeals.”
If the Public Service Board does end up ruling on a Certificate of Public Good, the board has a long list of issues it can consider in deciding whether an applicant will promote the general good of the state, a requirement for operating a power plant.
Among the considerations the board can weigh are the economic benefit of the plant and its effect on the environment. In other cases, the board has considered a company's maintenance of the facility and its business reputation.
Those last measures could offer hope to Vermont Yankee opponents, as the plant in the last decade has had cooling towers collapse, tritium leaks and concerns over the accuracy of information that company officials provided about the pipes that leaked.
Saudek noted that in the vast majority of cases, the Public Service Board grants a certificate but almost always with significant conditions. What those conditions might be is a matter of speculation, but observers suggested they could include restrictions on water discharge into the Connecticut River, among others.
Legislative action?
Patti O'Donnell, a former state representative from Vernon and current member of the town Selectboard, was in Montpelier last week lobbying her former colleagues. Pending legislation would increase taxes on Vermont Yankee by millions of dollars. O'Donnell alleges that's a back door way of trying to shut the plant down.
“We don't want the Legislature to start extorting Entergy as a way to close it,” O'Donnell said.
Rep. Tony Klein, D-East Montpelier, sponsor of H.469, a bill that would tax the storage of waste at Vermont Yankee, denied that was his goal. He contended the plant has not been paying the state enough money. He said action on his bill is on hold as officials consider Murtha's decision and possible appeals.
Part of the money generated by Klein's proposed tax would go to the state's Clean Energy Development Fund, which pays for incentives for renewable energy projects. As part of an agreement Vermont Yankee made to store spent fuel on site, it has been contributing about $6 million a year to the fund. That agreement expires March 21, along with Vermont Yankee's initial operating license.
The state Agency of Natural Resources is also considering renewing a long-expired thermal discharge permit for the plant's water discharges into the Connecticut River.
Vermont Yankee wants a variance from regulations that require discharge to be within 1 degree of the river's water temperature, said agency Secretary Deb Markowitz, a measure the plant has been allowed to exceed. She said Vermont Yankee will be required to show that increased water temperatures cause no environmental harm. Without the variance, the plant would have to run cooling towers more regularly at an increased cost.
After March 21, Vermont utilities' contracts for Vermont Yankee power end. They have all made arrangements to buy power elsewhere, but the power they receive could still come from Vernon.
“Physically nothing changes,” said Steve Costello, spokesman for Central Vermont Public Service Corp., which buys about one-third of its power from Vermont Yankee now. What changes, he said, is where the money is sent.
Randy Pratt of Vermont Electric Cooperative Inc. described the situation this way: Electricity is like water in a big bath tub. There are spigots that represent power plants pouring water into the tub, and holes that represent utilities drawing water out of the tub. Once the water is in the tub, it's all blended together.
The difference for Vermont Electric Cooperative, though, is the power will cost less after March 21. VEC now pays Vermont Yankee an above-market price for power while replacement power will average less than that, Pratt said.
Green Mountain Power Corp. will buy some of its replacement power from a nuclear power plant in Seabrook, N.H. Last year, after the utilities failed to reach an agreement on a new power agreement with Vermont Yankee, it landed one with Seabrook owner NextEra.