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VY/Entergy deal now faces regulatory scrutiny

Public Service Board releases a schedule to consider CPG in light of proposed agreement

The source documents for the VY docket can be downloaded on the state Public Service Board website. Windham Regional Commission’s testimony and filings on the case can be accessed at

BRATTLEBORO—The Vermont Public Service Board (PSB) has released its two-month schedule for the remainder of Entergy’s Certificate of Public Good (CPG) hearing, which will allow its Vermont Yankee nuclear power plant to operate legally until it closes its doors later this year.

But most of the agreement between Entergy and the state is contingent on the company receiving a CPG by March 31, and a regional planning official cautions that the agreement is hardly a fait accomplis.

The schedule, which begins with a public hearing on the CPG and other VY issues on Jan. 14, includes deadlines for additional testimony from the parties participating in the hearing. The PSB has also released a list of nine questions about the agreement that the board wants addressed in prefiled testimony.

Prefiled testimony in support of the memorandum are due to the board by Jan. 9. All other prefiled testimony or pre-hearing memoranda is due to the board by Jan. 27.

‘Not over by a long shot’

Chock full of financial incentives for Windham County, and speaking to a potentially shorter decommissioning timeline, the agreement nevertheless raises more questions than answers, said Christopher Campany, executive director of the Windham Regional Commission (WRC).

The regional planning agency, which has taken a neutral stand on the actual presence and operation of the plant, advocates for public policy and the best interests of the Windham County region and the agency’s member towns.

The WRC, a party in the proceedings, seeks to address the “overall reliability, prompt and complete decommissioning, and critical economic impacts of plant operation and eventual closure,” according to a filing with the PSB.

On one side of the ongoing CPG process sits a massive pile of evidence and testimony from multiple VY-related PSB dockets — all of which the state and Entergy seek to replace with a seven-page Memorandum of Understanding (MOU).

“I’m a little afraid people have taken this [MOU] as a given,” Campany said.

The WRC has raised concerns about the company’s decommissioning process and whether the federally mandated decommissioning fund has enough funding to cover the costs of dismantling the plant.

According to Campany, despite the agreement reached by the state and the Louisiana-based corporation, the commission’s concerns have not changed.

“This is not over by a long shot,” he said. “Stay tuned and pay attention to the process.”

The PSB is an independent body with a lot to decide before awarding VY a CPG, said Campany, adding that he could not comment at length on the commission’s response to the state and Entergy’s MOU, pending a meeting by WRC commissioners to determine the agency’s official position.

The PSB still needs to decide whether the VY plant merits a CPG and whether the board even has legal authority to approve some of the items on which the agreement is conditioned.

Issues in the agreement

In the agreement, Entergy pledges $10 million over five years toward economic development, and additional monies toward renewable energy projects, all benefitting Windham County.

The company has also agreed to move nuclear waste from the reactor’s spent-fuel pool to onsite dry cask storage. Site restoration and an immediate decommissioning process are also part of the agreement.

Although the state and Entergy have agreed to end all current litigation, Entergy reserves its right to challenge state laws on preemption grounds — that only the federal government can legislate issues of radiological safety.

In its list of questions, the PSB asks, “How does this provision relate to Entergy VY’s existing commitments from other dockets not to raise preemption challenges?”

In a similar memorandum that is linked to the PSB’s approval of Entergy’s purchase of the plant in 2002, the company “expressly and irrevocably” agreed not to contest the state’s authority to require a renewal of the CPG for the plant to continue operating after its original certificate expired.

When the State Senate, acting under a state law that required legislative approval for the PSB to consider the VY docket, declined to approve the measure, Entergy prevailed in a lawsuit in federal court to challenge the requirement.

Entergy has insisted that by passing Act 160, the state legislature first broke the agreement.

The board also asked for clarification on the board’s jurisdiction in regard to the state and Entergy’s MOU.

For example, the memorandum hinges on the PSB retroactively “granting Entergy VY permission to store nuclear fuel derived from operation” from March 21, 2012, when its previous CPG expired, through Dec. 31, 2014.

“Can the Board grant such approval consistent with the requirements of 10 V.S.A. [section] 6522, or must such a request be directed to the Vermont legislature? If the Board concludes it does not have the right to grant such approval, how does this affect the MOU?” the board asks.

The PSB questioned how the new memorandum squares with previous agreements or commitments between the state and Entergy.

The board asked for clarification of various parts of the memorandum — for example, what Entergy and the state mean by “timely manner” as it pertains to moving spent fuel to dry cask storage.

It also asked whether additional information on financial commitments would be made available prior to the possible awarding of a CPG so the board could consider as many details as possible.

Docket schedule

The PSB will hold a public hearing in Montpelier on Jan. 14 at 7 p.m. The public can participate in the hearing via Vermont Interactive Technologies sites.

Southern sites include:

• Bennington — Senior Center, 124 Pleasant St.

• Brattleboro — Brattleboro Union High School, 131 Fairground Rd., Room 125.

• Springfield — Howard Dean Education Center, 307 South St., Second Floor.

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Originally published in The Commons issue #236 (Wednesday, January 8, 2014). This story appeared on page A1.

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