BRATTLEBORO -- State Rep. Richard Marek will introduce a bill this week that would make it a criminal enterprise to operate a nuclear plant in Vermont without receiving the approved permit from state lawmakers and the Public Service Board.
Marek, a Newfane Democrat, said he will hold a press conference at the Statehouse on Tuesday outlining a bill to put Vermont in a position where a statute pertaining to nuclear plants would be similar to other laws addressing illegal activities.
The only such facility in the state is the Vermont Yankee nuclear power plant, which is owned by Entergy Corp. The company has recently filed suit over whether the state can legally close the plant and sought a court order that would prevent that from happening until courts have ruled on the jurisdiction challenge.
The legislation, drafted before Entergy filed a lawsuit against the state, would deem it against the state's public policy to violate Vermont law by operating a plant without the required approvals and would declare any attempt to indemnify or reimburse for any penalties incurred of the foregoing violations as a separate infraction.
While the U.S. Nuclear Regulatory Commission granted Vermont Yankee a new 20-year operating license in March, the state contends it has the authority to close it as scheduled on March 12, 2012, after the Senate voted to block the continued operations at the plant.
Marek said the company has delayed any pending legal action up until this time and could stretch out the litigation to continue profiting at the site, ignoring any state jurisdiction.
"They are in a position to essentially operate an illegal enterprise and profit from that, so what this bill proposes is that we do the same thing there that we do with other illegal enterprises," he said. "It also says, just as we do with other illegal activities, you can't facilitate that by providing services to the plant."
The penalties for violating the proposed measure would include a fine of up to $100,000 daily applied to both the owner of the plant (Entergy) and to board members and decision-making levels of management.
Marek's legislation would also make it illegal to furnish services amounting to more than $10,000 annually to facilitate operation of a nuclear plant when the company knows it requires Legislature-approval to operate.
"I've been wrestling with how to address a core problem, and that is I think Vermonters respect the law and expect other to respect the law and honor it," Marek said. "We don't let people violate the law with impunity, we don't let them violate the law and then essentially give them a free ride."
Yankee spokesman Larry Smith said the company declined to comment on the Marek legislation because they have not seen it.
"There's no comment at the present time," Smith said.
But professor Patrick Parenteau, former director of the Vermont Law School Environmental Law Center and the Environmental and Natural Resources Law Clinic, called the proposed measure "suspicious" and "overkill."
"If it actually passed, the first question would be is it lawful, is it constitutional? Hard to speak without knowing the details, but it would certainly be challenged," he said. "It's all speculative, but the defense to an attempt to prosecute someone would be a violation of due process of law. And it's totally speculative to try to figure out how that would play out in court, but for sure it would be challenged by anybody who would be prosecuted."
Entergy has a right to challenge the shutdown order within the state and the company has a right to defend itself, he added. "They have an absolute right to do that, and to criminalize that strikes me as going too far."
Realistically, the legislation will not make it to the House floor this session, according to Marek, but there is time for adopting a statute laying out penalties for violating the law.
"I think adoption of this prior to the state's current permission to be running out is not retroactive ... there's nothing that says anywhere that Vermont Yankee, while its case is pending, could not suspend operation of the plant and this law wouldn't have any application to them if they did that," he said.
Kerrick Johnson, vice president for external affairs at Vermont Electric Power Company, Inc. (VELCO), said any legislation or court-related issues directed at Yankee is solely at Entergy, and if such a directive was given, the company's response would involve contacting VELCO and ISO-New England to ensure a safe and measured ramp-down of generation constant with established federal and regional protocols.
VELCO owns two switchyards near the Vernon-based nuclear site valued on the town's grand list at $29 million.
Chris Garofolo can be reached at firstname.lastname@example.org or 802-254-2311 ext. 275.