Background on Vermont Yankee case

Thursday February 7, 2013

Entergy’s original federal license to operate Vermont Yankee nuclear power plant in Vernon expired on March 21, 2012. One year earlier, the NRC issued an extended 20-year license after more than six years of review. But Entergy also needs a certificate of public good from the PSB to continue operating the plant. The CPG that was issued in 2002 after Entergy bought the plant expired on March 21, 2012, and the plant is currently operating with the old certificate while the PSB reconsiders its application.

The Public Service Board suspended its hearings after Entergy sued the state of Vermont after the Vermont Senate voted to forbid the board from issuing a CPG for continued operation. Entergy contended that when the Legislature was discussing legislation to give itself that power, it considered the safety of the plant, which is under the sole purview of the NRC.

The district court agreed, and invalidated the legislation. At the same time, the court recognized the state’s right to consider continued operation of the plant as long as the PSB’s decision was based on non-safety-related items, such as economics, the orderly growth and development of the region, environmental impacts and land use.

Late last year, the New England Coalition, which opposes Yankee’s continued operation, petitioned the Vermont Supreme Court, asking it to enforce Condition 8 of the 2002 sales agreement that authorized Entergy’s purchase of the plant.

That condition mandates that Entergy must have a new CPG to continue the operation of the plant, a condition that is separate from the actual CPG, which has its own condition that a new certificate be received for continued operation.

Entergy has contended that it’s not its fault that the PSB’s hearing process has been delayed and therefore it should not be penalized. But the PSB has ruled that while it recognizes "that the Legislature took actions that changed the legal landscape, Entergy VY’s claimed hardship -- the risks associated with operation after the deadline for termination set out in Condition 8 of the Sale Order -- is in large part the result of tactical decisions Entergy VY made concerning legislative strategy, the timing of legal challenges, and the structure of its petition before the board."

The PSB closed the old CPG docket and recently opened a new one. On Monday, it will begin two weeks of taking oral arguments, cross examining witnesses and asking questions of experts about Entergy’s request for a CPG. The PSB is also considering what evidence from the old docket to strike from the record, evidence that might have been invalidated by the district court’s decision, and is taking new evidence that came to light following the closure of its hearings.

The PSB has indicated it will make a decision on the CPG request after August 2013.

Meanwhile, the state has appealed the district court’s decision to the Second Circuit Court of Appeals in Washington, D.C., which recently heard oral arguments. There is no indication when the appeals court will rule.


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