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Not-for-Profit, Award-Winning Community News and Views for Windham County, Vermont • Since 2006

Seven VY employees sue state, claim civil rights were violated by decision to close plant

Additional reporting by Jeff Potter.

BRATTLEBORO—Alleging that Vermont has violated their civil and constitutional rights by regulating nuclear power in the state, seven Vermont Yankee employees have filed a lawsuit to prevent the state from regulating the nuclear power plant.

Michael Harris of Brattleboro, John Twarog of Keene, N.H., Derek Jones and Vincent Ferrizzi, both of Newfane, Neal Jennison of Greenfield, Mass., Albert Zander of Readsboro, and Thomas Roberts of North Adams, Mass., all work as senior reactor operators at the Vernon plant and filed the civil complaint June 22 in U.S. District Court.

All seven plaintiffs hold reactor operator licenses, specific to the plant, issued by the U.S. Nuclear Regulatory Commission.

The operators claim “a constitutionally-protected property interest in maintaining their licenses and preventing the termination of their licenses via state action without due process of law.”

The complaint argues that if a reactor operator or senior rector operator moves to another facility, “he/she needs to qualify for a license for that particular facility, which necessarily involves site-specific training and examinations.”

The plaintiffs also say they face “the reality of pay cuts, including loss of the bonus received for working on shift as a licensed operator,” as well as job benefits like seniority, if the plant closes.

Staying open

The suit aims to keep Vermont Yankee open by requesting the federal court issue a “declaratory judgement” that federal law preempts Vermont law.

“The question presented by this case is whether the state of Vermont, either through a state administrative agency (the Public Service Board) and/or the state legislature (the General Assembly) may effectively veto the federal government’s authorization to operate Vermont Yankee through March 21, 2032,” stated the suit, “and thereby deprive Plaintiffs of the constitutionally protected property interest conferred by their licenses issued by the NRC to operate Vermont Yankee.”

“The answer is no,” it concludes.

The suit also requests the court “issue a permanent injunction” thus blocking Vermont from enforcing statutes, regulations, or other laws that could regulate the operation, relicencing, or shutdown of Vermont Yankee.

This injunction would halt the enforcement of state Acts 74, 160, and 189.

Finally, the suit asks that the court, “issue a permanent injunction [] enjoining Defendants from undertaking any steps, based upon Vermont’s or its officials’ denial of a CPO, to shut down or make preparations to shut down the operation of Vermont Yankee as of March 21, 2012; thereby causing the termination of Plaintiffs’ licenses and employment and depriving Plaintiffs of their constitutionally protected property interests, without providing Plaintiffs appropriate due process.”

The firm of Cleary Shahi & Aicher, based in Rutland, is representing the employees.

Similar claims

The plaintiffs’ claims duplicate the claims that Entergy Nuclear’s legal team made last week during two days of hearings in U.S. District Court in Brattleboro.

Last week, Entergy’s lead lawyer, Kathleen M. Sullivan, of the New York-based law firm of Quinn Emanuel Urquhart & Sullivan, presented the corporation’s claims for a preliminary injunction to Judge J. Garvan Murtha.

Similar to Entergy’s case, the Vermont Yankee employees claimed in their court documents that the regulation of the 600-megawatt nuclear power station belonged under the federal government’s purview, and that regulating radiological safety is at the core of the state’s laws.

Like the employees’ lawsuit, Entergy’s filing also takes issue with the state’s Acts 74, 160, and 189. Both lawsuits made reference to some of the same federal court cases, including Pacific Gas & Electric Co. v. State Energy Resurces Conservation and Development Commission from 1983 and English v. General Electric Co. from 1990.

The seven employees said the state’s action violated their federally guaranteed constitutional and civil rights.

“A State-imposed permanent shut-down of Vermont Yankee will result in the automatic termination of Plaintiffs’ Reactor Operators’ and Senior Reactor Operators’ licenses and thereby deprive them of their constitutionally protected property interests,” says the suit.

The plaintiffs have asked for a “prompt determination” on their case regarding Vermont Yankee’s operation past 2012, “so that Plaintiffs will have sufficient time to seek employment at other reactor sites prior to the projected shut-down.”

According to numbers posted by Entergy’s lawyers during last week’s preliminary injunction hearings, annual salaries at Vermont Yankee average more than $100,000.

The court documents do not specify the salary of any of the plaintiffs.

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Originally published in The Commons issue #107 (Wednesday, June 29, 2011).

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