MARLBORO — As I read the Second Circuit Court decision in the Entergy v. Vermont case, the court finds Act 74 preempted, but not Section 6501 (storage of radioactive material), which it mentions specifically.
The court then goes on to make a big deal of the notion that, in its words: “The post–March 21, 2012, shift of responsibility for approving the storage of spent nuclear fuel generated by Vermont Yankee from the [Public Service] Board to the Vermont Legislature had important ramifications. Decisions of the Board may be appealed to the Vermont Supreme Court. No such review mechanism would exist for the Vermont Legislature's decision not to approve additional spent nuclear fuel storage space.”
But actually, Act 74 shifted approval for pre-2012 storage to the Board, and left post-2012 storage where it was back in 1977: with the legislature. The “shift” the court is describing didn't occur because the Board never had the responsibility for approving post-2012 fuel storage. The Board has explicitly acknowledged this fact.
Indeed, as far as I can tell, approval for additional fuel storage remains today with the Legislature (since we're now post-2012).
Moreover, since the Appellate Court, like Judge J. Garvan Murtha in his original federal court decision, bases its preemption decision squarely on the legislative record leading to the enactment of Act 74 - indeed, it finds nothing in the language of the bill to contest - then two conclusions seem to follow:
1) Vermont Yankee may not add spent fuel generated after March 21, 2012 to its dry casks without approval of the Legislature, and
2) The law requiring (1) was passed in 1977, and since the expressions of safety concern Murtha (and the appellate court) consider are all post-2005, they are clearly irrelevant to the question of what motivated the law passed in 1977.
To these two points, I would add one more:
3) The Board has already ruled that it is precluded from allowing storage of fuel after 2012 by Section 6501, so there is no possibility that the Board can make this decision.
Doesn't it follow that any fuel placed in dry casks from now on will violate a Vermont statute that has not been overturned?
If so, what is the state of Vermont going to do about it?