Entergy asks federal court to step into state court proceedings

Thursday December 13, 2012

BRATTLEBORO -- Entergy Vermont Yankee is asking a federal judge to force an anti-nuclear organization to withdraw a filing to the Vermont Supreme Court in which it is asking for the shutdown of the nuclear power plant in Vernon.

"This court should prevent (the New England Coalition) from undermining the Court's prior decisions in this matter," wrote Kathleen Sullivan, attorney for Entergy Vermont Yankee, in a filing submitted to the U.S. District Court for the District of Vermont on Dec. 10.

Earlier this month, the New England Coalition filed a motion with the Vermont Supreme Court, contending Entergy is violating a condition it agreed to when the PSB allowed it to purchase the plant in 2002.

In Entergy's Dec. 10 filing, Sullivan accused NEC of attempting "an end-run around" an agreement to allow the plant to operate while the Vermont Public Service Board conducts its review of Entergy's application for a new certificate of public good for continued operation of Yankee.

Following the District Court's January ruling, Entergy asked the court to bar the state from shutting down the plant while the PSB was considering Entergy's application for a new CPG.

In documents filed in response to Entergy's request, the Vermont Attorney General's Office wrote neither it nor the Department of Public Service "has taken the position that Vermont Yankee must close after March 21, 2012. (P)ending resolution of its CPG petition or reversal of this court's decision on appeal, Entergy may continue to operate under the terms of its current CPG ..."

Relying on the AG's statement, the court did not issue an injunction.

Though the PSB itself did not state it would take action to shut down Yankee, wrote Sullivan, it did "expressly invite others (such as NEC) to do so."

"Entergy VY has not challenged the validity of this commitment in its federal litigation," wrote the board. "Thus, any of those parties could seek specific performance ... at any time which, if granted, would bar operation after March 21 ..."

"NEC has taken on the role of enforcer of the PSB's orders," wrote Sullivan.

Jared Margolis, legal counsel for NEC, said Entergy in its latest filing is "grasping at straws" because the federal court has no jurisdiction over the issues NEC has presented to the Vermont Supreme Court.

According to his reading of a state statute, said Margolis, NEC has the right to go straight to the Vermont Supreme Court, bypassing the board, to ask for a shutdown of the plant for being in violation of Condition 8 of the sales agreement, known as Docket 6545, which requires a new certificate for operation past March 21.

The statute states that a party to an order or decree of the PSB "may complain to the Supreme Court for relief against any disobedience of or noncompliance with such order or decree."

"This has nothing to do with the certificate, radiological safety or pre-emption," said Margolis. NEC's filing to the Vermont Supreme Court referred only to the sales agreement, he said.

"We were careful to leave out anything to do with the District Court's order," said Margolis. "We are simply asking the court to enforce the order of the board in Docket 6545. This has nothing 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."

In May, Entergy asked the board to amend Condition 8 of the sales agreement, an amendment that would have waived the CPG requirement. The board denied Entergy's request, stating it would not overlook the fact that the plant is still operating and generating nuclear waste despite failing to fulfill promises in the sales agreement to shut down if it didn't secure new state permits.

The Department of Public Service is arguing in its own filing to the Vermont Supreme Court that NEC should first file a request with the PSB for Yankee's shutdown. In its filing, DPS argued that pending board proceedings provide adequate procedures and remedies to address the continued operation of Yankee and asked the Supreme Court to deny NEC's petition.

"There is no justification for this Court to use its powers to grant extraordinary relief and thereby interfere in the ongoing functions of the Board," wrote Geoffrey Commons, the director of public advocacy for DPS. "This court should accord due deference to the Board and the federal processes, and allow those processes to run their course."

"That's not how the statute reads," responded Margolis. "There's no need for some additional order (and) why go to the board if Entergy seems intent on ignoring the board's orders? They are violating the order and it needs to be enforced."

Vermont Yankee spokesman Jim Sinclair had no comment on the court filings.

"Our focus remains on the continued safe and reliable operation of Vermont Yankee, which is consistent with the favorable federal court decision we received earlier this year," said Sinclair. "We have filed with the federal court to seek an injunction to protect Vermont Yankee's right to continue to operate."

Related: The case so far

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


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