Entergy might ask court to order CPG

Friday February 1, 2013

BRATTLEBORO -- In a statement submitted to the Vermont Supreme Court, Entergy said it might ask the court to consider ordering the Vermont Public Service Board to issue a certificate of public good for the continued operation of Vermont Yankee nuclear power plant in Vernon.

Entergy, which owns and operates the plant, submitted its docketing statement, detailing the issues it reserves the right to "add to, subtract from, or modify ... in the course of preparing its opening brief" in hearings that might transpire before the Supreme Court.

Entergy had no comment on its filing.

Pat Parenteau, senior counsel to the Environmental and Natural Resources Law Clinic and professor of law at Vermont Law School, said the statement is Entergy's opening salvo in response to a motion filed by the New England Coalition requesting the forced closure of Yankee.

"Here's their theory: The Federal District Court struck the laws requiring legislative approval and that clears the way for the PSB to act on the old docket," said Parenteau.

However, he said, following the district court's decision in January 2012, the Public Service Board decided some of the record in its CPG hearings was stale or pre-empted by the decision. In addition, new information that arose following the suspension of the PSB's hearings needs to be added to the record. For that reason, the PSB decided late last year to close the original CPG docket and open a new one.

"Entergy doesn't believe those are legitimate reasons to delay making a decision," said Parenteau.

Brice Simon, of Breton & Simon in Stowe, who represents NEC, said Entergy's suggestion is "a preposterous notion."

"Entergy has acknowledged a new docket should be opened," he said. "When the board queried the parties, Entergy said it could issue a new CPG but it understood why you would open a new docket. Entergy's own appeal to the district court caused much of the evidence in the old docket to be called into question."

Entergy's original federal license to operate Yankee 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 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."

Even though Entergy agreed the original CPG docket should be closed and a new one opened, it has now notified the Vermont Supreme Court that it might argue the old docket had enough information for the PSB to issue a new certificate, said Parenteau.

"Entergy is saying it is entitled to a CPG under the old docket," he said.

Simon said he's not surprised that Entergy's attorneys are using a number of different tactics to insure Yankee continues to operate, after all, he said, Entergy has four law firms working on its case, including one from New York City that has represented Shell Oil before the U.S. Supreme Court in a dispute over whether Nigerian nationals can sue the oil giant in the United States for its collusion in human rights abuses.

Simon said facing off against such powerful law firms is exciting, but also challenging trying to keep up with the deposition schedule.

"The NEC needs more financial support simply to be able cover all the deposition hearings and cases we want to be involved in," he said.

Parenteau believes the Supreme Court is unlikely to get involved in the PSB's deliberations, whether in favor of Entergy or NEC.

"It's my assessment they will not intervene at this stage while the board is in the midst of its hearing procedures," he said.

The extraordinary relief provision NEC is asking the Supreme Court to use has never been used, said Parenteau.

"I believe the court will give the board ample opportunity to make its decision."

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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