BRATTLEBORO -- In its response to a filing by the Department of Public Service -- in which the department called statements made by Entergy "demonstrably false" -- Entergy claims DPS itself is making inconsistent statements.
"DPS' response sets forth a position ... that directly contradicts its earlier position without acknowledging or explaining its inconsistency," wrote attorneys for Entergy, which owns and operates Vermont Yankee nuclear power plant in Vernon.
In particular, noted Entergy, in previous filings to the Vermont Public Service Board, both DPS and the Vermont Attorney General's Office have stated that absent a current certificate of public good, Entergy can continue to operate Yankee under the certificate that expired on March 21, 2012.
In a filing submitted on Jan. 25, DPS "now asserts the opposite position," wrote Entergy's attorneys.
In that filing, DPS maintained Entergy is operating Yankee without a new CPG, in breach of a sale order authorizing Entergy to purchase the plant and in opposition to many promises it made during sale negotiations.
"DPS does not explain the basis for its departure from its prior express representation that Vermont law does entitle Vermont Yankee to continue to operate ..." wrote Entergy's attorneys.
But nowhere in the Jan. 25 filing by DPS does the department state Entergy doesn't have the right to operate the plant while its certificate application is pending -- it merely states that Entergy has broken a number of promises it made during the sale negotiations and that because it is untrustworthy, it should not be given a new CPG.
Entergy's attorneys wrote that statements presented as proof of breach of promises were made by Entergy representatives who never could have contemplated "the possibility that timely-filed CPG application by Entergy VY would not be disposed of by the board before the expiration date of Entergy VY's existing CPG ..."
And, in a footnote, wrote the attorneys "this board's own precedent does not support treating a company's allegedly misleading or inconsistent statements as a basis for denying a certificate of public good."
Furthermore, they wrote, the absence of a power purchase agreement between Entergy and Vermont's electric utilities should not bear any weight in the Public Service Board's deliberations.
The federal district court ruled "that DPS and other Vermont officials, not Entergy VY, acted in violation of law by insisting that Entergy VY grant a more favorable PPA to Vermont utilities ..." they wrote. "Entergy VY reached an agreement-in-principle on a new PPA with the Vermont retail utilities in late 2010, but that the utilities refused to sign that PPA after telling Entergy VY that execution depended upon receiving the Governor's go-ahead."
But Sandy Levine, senior attorney for Conservation Law Foundation, which opposes Yankee's continued operation, said Entergy's attorneys are "filling in a lot of gaps to tell a story that is favorable to them."
According to testimony by Marc Potkin, vice president of power marketing for Entergy, there was a discussion with Entergy and Robert Young, then the president of Central Vermont Public Service, over the PPA.
"Mr. Young told us, however, that before he would actually execute the PPA for Central Vermont Public Service, he needed to meet with Governor Shumlin, and as long as the Governor did not have any problems with it, he would go ahead and sign the PPA," stated Potkin, adding the agreement was never executed.
"So Young said he needed to talk to the Governor, and then later, no time provided, they didn't execute an agreement," said Levine. "Just because one event follows another does not mean that the first event caused the second. The sad thing is that only one side of the story is being told here and even that side is woefully incomplete."
Bob Audette can be reached at firstname.lastname@example.org, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.