BRATTLEBORO -- Entergy is operating Vermont Yankee nuclear power plant "in clear violation" of a Public Service Board order issued in 2002, wrote an attorney representing the New England Coalition in a document submitted Thursday to the Vermont Supreme Court.
"While the (PSB) is currently reviewing whether Entergy meets the requirement for a new (certificate of public good), it is not considering whether the plant may continue to operate pending that decision, and in violation of the Board's order in Docket 6545," wrote Jared Margolis, on behalf of NEC, which opposes Yankee's continued operation.
The document was submitted in response to a filing by the Department of Public Service, which was responding to an NEC filing requesting the Supreme Court order the shutdown of Yankee.
NEC is contending Entergy is violating Condition 8 of Docket 6545, which authorized the sale of Yankee in 2002. Condition 8 requires a new certificate for operation past March 21, 2012.
But DPS, in its filing, stated NEC's motion for shutdown should be denied because the Vermont Public Service Board is in the process of reviewing Entergy's application for a new certificate.
"The Department (of Public Service) argues that ‘(c)ontrary to NEC's assertions, the CPG allowing the VY Station to continue operating remains in place pending the Board's (review of the application),'" wrote Margolis. "NEC is not, however, arguing that the CPG does not remain in place. Rather, NEC seeks enforcement of Condition 8 of the (sale agreement). ... The sale order is a separate document from the CPG, and pertains to the sale of the Vermont Yankee Station to Entergy, and not the continuing operation of the plant ..."
The Department of Public Service also appealed to the Supreme Court to deny NEC's motion because there is no specific board order NEC can ask the Supreme Court to enforce.
However, wrote Margolis, there is nothing in case law or state statutes that requires an additional board order further specifying Entergy cease operations because Docket 6545 is clear in its intent that a new CPG is required.
Moreover, he wrote, in two decisions issued this year, the board reaffirmed the separate nature of the CPG application and the sales order.
"While the CPG may remain in place, that does not suggest that Entergy may operate the plant in violation of a Board order requiring a new or renewed CPG."
DPS also claimed in its filing that because Yankee's continued operation is also before the federal appeals court, the Supreme Court should deny NEC's request.
However, wrote Margolis, the sale order is not currently under review by the appellate court or the PSB, therefore the Vermont Supreme Court has the authority to review NEC's motion.
State statute gives parties to a board proceeding, such as NEC is in the sales docket, the power to appeal to the Supreme Court if they feel a board order is being violated, wrote Margolis.
"NEC's complaint is properly before this Court, and the Court should find that Entergy is operating the VY plant in direct violation of Condition 8 of the sale order," he wrote. "The Court should accordingly enjoin Entergy from continuing to operate the Vermont Yankee plant until the Board has rendered a decision on Entergy's application for a new or amended CPG ..."
Bob Audette can be reached at firstname.lastname@example.org, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.