The Vermont Yankee nuclear plant in Vernon. (AP file photo)
The Vermont Yankee nuclear plant in Vernon. (AP file photo)
Wednesday February 1, 2012

BRATTLEBORO -- During a quarterly earnings conference call Tuesday, Entergy Nuclear CEO J. Wayne Leonard said a motion had been filed with the Vermont Public Service Board asking for permission for the continued operation of the Vermont Yankee nuclear power plant.

Members of Entergy's legal team filed the motion asking the PSB to issue a final decision and order by either amending the existing certificate of public good or issuing a new one.

To motion follows a Jan. 19 ruling made by Judge J. Garvan Murtha, which stated that Vermont Act 160 and a provision of Act 74 were preempted by the Federal Atomic Energy Act because they were passed with the intent to regulate radiological safety, the sole purview of the Nuclear Regulatory Commission.

"With the judge finding there's no nuclear safety or power contract issues that can be the basis for the denial, we believe there is nothing standing in the way of issuing the CPG," Leonard said during the call. "We believe the evidence is complete and supports the decision to allow continued operation."

He added that the law states the plant is allowed to continue to operate if a ruling on a new or revised CPG isn't completed before March 21.

According to the motion filed by Entergy's lawyers, the PSB "has a fully sufficient record, without taking any additional evidence" to make a decision on whether the plant can operate past its original closure date of March 21.

When asked about the PSB process and the possible outcomes, Leonard said that Entergy's officials have had many discussions.

"I'm not going to speculate about that," he said. "We expect that they will follow the law, we expect that they will follow the record ... I expect that there will be pressure to let the appeal -- get the appeal exhausted before they make that decision. But we're just going to have to wait and see first of all whether the state decides to appeal."

The state has until Feb. 21 to file an appeal with the Second Circuit Court of Murtha's decision, but according to court documents until burden of proof is overturned, the plant will be allowed to continue to operate because of Murtha's permanent injunction.

Vermont Attorney General William Sorrell and his staff have met with legislators as well as Gov. Peter Shumlin, but no decision on whether to appeal has been made at this time.

Raymond Shadis, technical adviser with the New England Coalition, told the Associated Press on Tuesday that the board should consider several issues before issuing the certificate sought by Entergy.

"The parties, New England Coalition in particular, have no intention of allowing Entergy a free pass in this process," Shadis said. "All the information flowing into the case ended in early 2009. All the testimony is stale. There have been many so-called watershed events since then."

Among the unresolved issues, Shadis said, were misstatements Vermont Yankee employees allegedly made to the board during earlier stages of the case in which they said the plant did not have the sort of underground piping that carried radioactive materials. In early 2010, it was revealed that such pipes not only existed, but were leaking tritium, a radioactive isotope of hydrogen, into soil and groundwater surrounding the plant.

Shadis also pointed to the nuclear disaster triggered by the earthquake and tsunami last March in the Japanese region of Fukushima, where three of six reactors melted down, there were multiple hydrogen explosions and widespread contamination of the surrounding region.

The Fukushima reactors were the same make and about the same age as Vermont Yankee. The NRC has been considering what physical changes U.S. boiling water reactors like Vermont Yankee might need to make following the experience in Japan.

"There are several physical, mechanical fixes that might be required," Shadis said. "We don't know the shape of them yet."

Leonard took time during the conference call to address the numerous complaints by anti-nuclear groups before and throughout the court proceedings.

"Over the last few years nearly constant Entergy bashing in Vermont and among other things, our company's integrity and our trustworthiness," Leonard said. "We have chosen not to engage those attacks in the media."

He added that Murtha's decision rejected the state's assertion that "Entergy comes to the court with unclean hands."

The Associated Press contributed to this report.

Josh Stilts can be reached at jstilts@reformer.com, or 802-254-2311 ext. 273.