The Vermont Yankee nuclear plant in Vernon. (AP file photo)
The Vermont Yankee nuclear plant in Vernon. (AP file photo)
Tuesday December 18, 2012

BRATTLEBORO -- A filing by Entergy to the U.S. District Court for the District of Vermont is nothing more than an attack on the sovereignty of the state of Vermont, stated attorneys for the New England Coalition, in documents filed with the court on Dec. 14.

In addition, to grant Entergy's request would result in "an unlawful evisceration of the State's role in the regulation of the sale of Vermont utilities," wrote Brice Simon and Jared Magolis, who are representing NEC, which opposes the continued operation of Entergy-owned Vermont Yankee nuclear power plant in Vernon.

Earlier this month, NEC filed a motion with the Vermont Supreme Court, contending Entergy is operating the plant in violation of a condition agreed to when the Vermont Public Service Board allowed it to purchase the plant in 2002.

Condition 8 of the agreement stipulates operation of the plant would cease if Entergy failed to obtain a new certificate of public good on or before March 21, 2012.

On Dec. 10, Entergy filed a request with the federal district court, asking it to force NEC to withdraw its filing with the Vermont Supreme Court.

"This court should prevent (the New England Coalition) from undermining the Court's prior decisions in this matter," wrote attorneys for Entergy, referring to a district court finding in January that concluded the Vermont Legislature had overstepped its authority when it forbid the PSB from issuing a certificate without legislative approval.

The court ruled the Legislature considered safety, which is under the sole purview of the Nuclear Regulatory Commission, when it crafted legislation given itself the power over the PSB's issuance of a CPG.

The NRC issued a new 20-year operating license to Yankee in March 2011. The Public Service Board is in the process of reviewing Entergy's application for a new certificate but it is not expected to finish examining testimony and evidence until August 2013.

Until then, the PSB has agreed to let Yankee continue to operate under its current CPG, which expired in March 2012. The PSB recently denied an Entergy request that would have nullified Condition 8 of the sale agreement.

Entergy could have sought an injunction from the district court barring a shutdown for any reason, but based its case only on the basis of federal preemption and the on-site storage of nuclear waste, wrote Simon and Margolis. At no time did they raise the question of Condition 8, they added.

Entergy has not filed in Vermont Supreme Court opposing NEC's motion to force the shutdown of Yankee.

The attorneys also stressed that NEC's motion to the Supreme Court has nothing to do with the current CPG and only refers to the sale agreement.

"This has nothing to do with the certificate, radiological safety or pre-emption," Margolis told the Reformer last week. "We were careful to leave out anything to do with the District Court's order. Because it has nothing to do with the federal case, there is no basis to enjoin it."

NEC does not contend that Entergy is prohibited from operating Vermont Yankee regardless of whether a new CPG is granted, they wrote, nor does it dispute the ability of Entergy to continue to operate the plant while an application for a new CPG is under review.

"NEC's complaint is limited to the sole issue of whether (Entergy is) allowed to operate the Vermont Yankee facility in clear and direct violation of Condition 8 of the Sale Order with impunity, of if the Vermont Supreme Court has some enforcement authority over the undisputed conduct," wrote Simon and Margolis.

In this case, wrote Simon and Margolis, the district court does not have jurisdiction over NEC's filing to the Vermont Supreme Court.

"The only purpose for exercising jurisdiction would be to frustrate Vermont's state-based procedure for enforcing lawful Public Service Board orders," they wrote.

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.