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NEC files for intervener status in Entergy lawsuit against state

BRATTLEBORO—Tthe New England Coalition (NEC) filed for intervener status in Entergy’s federal court case against Vermontlast week.

The May 5 move continued NEC’s 40-year commitment to shutting down the Vermont Yankee nuclear plant, said members.

Entergy is suing Vermont over the state legislature’s decision not to let the Public Service Board award Vermont Yankee a Certificate of Public Good (CPG).

Vermont Yankee’s license expires in March 2012. Although the Nuclear Regulatory Commission (NRC) has granted the nuclear plant in Vernon a 20-year license extension, the plant legally requires the state certificate..

Vermont law requires nuclear plants to obtain the certificate. Before the Public Service Board can consider the plant’s case, however, the General Assembly must vote to approve the hearing.

In February 2010, the Senate voted 26-4 against allowing Vermont Yankee to go before the Public Service Board. No vote was taken in this year’s legislative session, which adjourned on Friday.

Entergy bases its claims on the principle of federal preemption, saying that only the NRC can rule on the plant’s license, and that the state of Vermont has overstepped its authority.

According to NRC spokesperson Neil Sheehan, the NRC is satisfied that Vermont has the right to take action on concerns not related to atomic safety. The NRC is not claiming federal preemption.

In its May 5 status filing, the NEC said it qualified as an intervener because its motion was timely, the organization had “significant interest” in the Vermont Yankee decision, the NEC’s “interests will be impeded” should Entergy win its case, and no other group involved in the case adequately represents NEC’s interests.

In an affidavit filed as part of the request before Judge J. Garvan Murtha in U.S. District Court in Brattleboro, the NEC stated that it was the only organization “founded expressly to investigate the ramifications of location, construction, and operation of the Vermont Yankee Power Station.”

The NEC’s filing also outlined past interventions, stretching from the 1970s, when contractors were still building the plant, to the present.

The organization also claimed that its raising of the “loss of local control” issue during the 2002 sale of Vermont Yankee to Entergy led to the Public Service Board’s memorandum of understanding, which underscored and reaffirmed Entergy’s understanding that the plant would require a state permit in addition to the federal NRC license renewal.

In the document, NEC claims the state would not have a legal leg to stand on in Entergy v. State of Vermont if the nonprofit had not raised the loss-of-control issue.

“NEC promised at the time of the [2010] 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 technical advisor Raymond Shadis in an NEC press release.

“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.”

Shadis said NEC brings “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 President Pro Tem Ned Childs said that people shouldn’t feel surprised about NEC’s filing. After 40 years of battling the nuclear plant, he noted, his organization can’t be expected “not to fix a bayonet and charge.”

Also, said Childs, the organization has more experience with Vermont Yankee’s technical details than even the state at this point.

The NEC will continue to raise the public’s awareness of the dangers of nuclear pollution, he said.

In a separate interview, Shadis said the NEC has always stood to “make information accessible to the public.”

Over its 40-year lifespan, he noted, the NEC has tried to educate the public, dispel misinformation related to Vermont Yankee, and intervene on the public’s behalf in legal proceedings.

Combating Entergy’s current public relations campaign to persuade Vermonters of “the justness” of its court case, and that Vermont Yankee’s 40-year lifespan was based on economic, not physical, viability, is part of the NEC’s role, said Shadis.

In a transcript of a Feb. 8 stockholders call, Entergy CEO J. Wayne Leonard told investors, “We are committed to maintaining open and timely communications in Vermont, however great the challenge is for gaining public support in disproving the negative put in the public’s mind that the age of the plant is determinant of its condition.”

Leonard continued, “The truth is, what those in the industry already know to be true, that the 40-year license was based on the expected economic life, not the physical life, the nuclear plants were designed for.”

“It’s not true,” said Shadis.

Shadis maintains that the contractors who built Vermont Yankee in 1972 determined the plant’s lifespan by ordering “components certified for 40 years of service.”

Seeking Alpha, a stock market analysis and opinion website compiled the Feb. 8 transcript.

Calls to Entergy in Louisiana were not returned by press time.

We’re called “watchdogs,” said Shadis. “[But we’re] nuclear birddogs. We find the game, and then we point to it.”

Entergy needs to understand that if it wins its court case against the state, it “will be walking into a hornet’s nest of regulation and birddogging,” said Shadis about NEC’s commitment to shutting down the 600-megawatt nuclear plant.

“I’m dead certain we will be [granted intervener status] but hey, you never know what a judge will do,” he said.

If Murtha does not grant NEC intervener status at this level, Shadis said, the organization could attempt to intervene in appealing the case to a higher court.

Vermont Attorney General William H. Sorrell has said that he anticipates the case going all the way to the U.S. Supreme Court.

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Originally published in The Commons issue #100 (Wednesday, May 11, 2011).

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