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Deborah Lazar/Special to The Commons

U.S. District Court Judge J. Garvan Murtha on Monday issued an injunction that will permit Vermont Yankee to operate during the appeals process of the Entergy v. Vermont lawsuit.


Judge: VY can operate without state permit

State also cannot enforce rules on storing spent fuel; PSB still believes it has a say

With additional reporting from Alan Panebaker of VTDigger.org. Updated at 5 p.m. on Tuesday, March 19.

BRATTLEBORO—The owner of the Vermont Yankee nuclear power plant won a crucial victory in federal court on Monday when U.S. District Judge J. Garvan Murtha issued an injunction that prevents the state of Vermont from closing the nuclear plant when VY’s current state permit expires on March 21.

Murtha granted Entergy’s request regarding spent fuel storage, saying that the state cannot shut the plant “pending the appeal of the Court’s final judgment and merits decision to the Second Circuit, from addressing the storage of spent fuel” under Vermont statutes.

He further prevented the state “from bringing an enforcement action, or taking other action [...] to compel Vermont Yankee to shut down because the ‘cumulative total of spent fuel stored at Vermont Yankee’ exceeds ‘the amount derived from the operation of the facility up to, but not beyond, March 21, 2012.’”

Murtha wrote that, based on Vermont law, the state would allow the plant to operate past that date while the CPG process continues. Thus, he wrote that the court “does not see the need to consider at this time Entergy’s request for an injunction pending appeal.”

Despite a ruling by Murtha in January that found that federal law superseded two Vermont laws, attorneys for Entergy had expressed concerns that the Vermont Public Service Board (PSB) would not allow Vermont Yankee to continue operating without the state Certificate of Public Good (CPG) that the plant needs to function legally.

The company asked Murtha for assurance that the plant could continue operating during the state’s appeal of his January ruling that the federal Atomic Energy Act pre-empted two state laws that required legislative approval to store spent nuclear fuel at VY after March 21, and for continued operation after that date.

However, Murtha’s January ruling left the PSB’s discretion over the CPG intact. That ruling is currently being appealed by the state to the Second Circuit of the U.S. Court of Appeals in New York City.

The plant got a 20-year extension from the U.S. Nuclear Regulatory Commission last March.

When the PSB reopened the VY docket after Murtha’s January ruling, it asked whether the plant could continue to operate. Entergy then fired off an immediate request to the federal court asking it to let the plant operate after March 21.

PSB has its say

At the same time that Murtha was issuing his ruling, the PSB issued an order on Monday regarding Entergy’s request that it be allowed to continue operating VY and to keep storing spent nuclear fuel from the plant while its CPG petition is pending.

Entergy’s request for the PSB to issue a declaratory ruling on its request was denied.

In the spent-fuel-storage request, the PSB wrote that state statute “does not provide authority for Vermont Yankee to continue operating, and storing spent fuel derived from such operation, while Entergy’s VY petition for a new or amended CPG remains pending.”

The PSB also stated it did not have authority to act on Entergy’s contention that the Legislature does not need to approve spent fuel storage at VY after March 21.

“In rendering today’s decision, we have applied the relevant provisions of state law that have not been pre-empted or enjoined by the federal District Court,” the PSB wrote.

“We are mindful of the [Department of Public Service’s] contention that the District Court’s decision serves to enjoin the Board from enforcing orders that would require cessation of operations at Vermont Yankee.

“Our Order today does not have that effect. Today’s order does not purport nor is intended to require that Entergy VY cease operations.”

Taxes on VY to continue?

Meanwhile, the state has also asserted to the PSB that Entergy must meet its obligation to fund the Clean Energy Development Fund.

It is unclear whether the Louisiana-based company would still be required to pay millions of dollars in an assortment of other taxes to the state.

While Vermont Attorney General Bill Sorrell and the Vermont Department of Public Service agree that the plant can continue operating while the Public Service Board determines whether to grant a new license, the PSB last week questioned whether it had the ability to let Vermont Yankee keep producing spent fuel and pushed Entergy attorneys on why they hadn’t addressed the impending issue earlier.

Entergy’s filing says the delay is not the company’s fault, and the board would have made a decision earlier if it hadn’t been for the Vermont laws that spawned litigation and put the licensing hearing on hold.

In 2010, the Vermont Senate effectively voted against relicensing the plant, and the litigation in federal court ensued last spring.

In 2012, Entergy made more than $7 million in total tax payments including an electrical energy tax ($1.4 million), an electric generating plant education property tax ($1 million), radiological emergency response plan payments ($2.13 million) and the Clean Energy Development Fund ($3.15 million), according to a report from the Joint Fiscal Office.

In addition, the corporation paid $108,000 in environmental fees for thermal discharges, hot water that flows from the plant into the Connecticut River.

Sarah Hofmann, deputy commissioner of the Department of Public Service, said the department agrees the plant can continue to operate under state law, but that Entergy has not lived up to its commitments.

“If they are going to be allowed to run on expired CPGs, then they have to live up to all the commitments in those CPGs,” she said.

Sorrell agreed. In an interview with The Commons on Tuesday, Sorrell said that at the heart of the dispute is the two Memorandum of Understandings (MOU) that Entergy signed.

The first was in 2002 when Entergy purchased the plant, agreed to accept the state’s jurisdiction over non-safety matters. The second was in 2005, when Entergy sought additional storage for spent fuel, and the company again accepted the state’s role in the relicensing process.

Sorrell said that Entergy had no objections to signing the MOUs and reaping the financial benefits, but they are now trying to get out of them and if they are allowed to do so, it would set a bad precedent and allow other companies that enter into agreements with state governments to reneg on those deals.

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