Entergy: Court has right to accept new information

Wednesday July 13, 2011

BRATTLEBORO -- Attorneys representing Entergy in federal court are contending they have the right to submit information that wasn't entered into the official record during hearings in Brattleboro on June 23 and 24.

Following those hearings, Federal District Court Judge J. Garvan Murtha issued an order allowing both Entergy and Vermont "to supplement their pre-hearing proposed findings, which shall not exceed 15 pages."

On July 1, Entergy's attorneys submitted additional findings of fact to the court.

Shortly thereafter, the state objected, claiming the findings were based on information received following the closure of the hearings.

"You can't put new evidence and new legal arguments before the court when the time to do so has passed," Vermont Attorney General Bill Sorrell told the Reformer, on July 7. "You can't just slide it in a filing. Entergy should have to make a motion to the court as to why they should be able to bring forth new evidence."

In April, Entergy filed suit against the state over the Vermont Senate's vote to forbid the Public Service Board from issuing a certificate of public good to allow Entergy to continue operating its Vermont Yankee nuclear power plant in Vernon past March 21, 2012.

Those hearings are scheduled to begin in October, but in late June, Murtha heard arguments over whether he should issue a preliminary injunction to keep the state from shutting Yankee down anytime prior to the resolution of the lawsuit.

Murtha is expected to hand down his decision before July 23, which Entergy contends is the cutoff date to order $65 million worth of fuel to install in the plant's reactor during its next refueling outage.

Entergy's attorneys contented the state's claim that Entergy "could recoup the more than $65 million cost of re-fueling through its post-outage operations ..." was erroneous because Yankee generates only $20 million in revenue each month, not in profit.

" ... its profit, if any, is ‘not even close' to that amount," they wrote, adding there is no evidence Entergy could recoup its refueling costs in the four to five months of continued operation that would be allowed between the end of the outage and March 21, 2012.

The attorneys also wrote that it is more than likely that a temporary shutdown of Yankee would result in its permanent shutdown because it " ... has to sur[vive] on its own" based on the market.

In addition, Entergy's attorneys explained that a report downgrading Entergy's credit outlook from stable to negative was released on June 28, four days after the hearings ended.

The downgrade occurred because of uncertainty over the future of Yankee and Entergy's Indian Point nuclear power station in New York.

This buttressed Entergy's claim that a failure to issue the preliminary injunction would cause irreparable harm to Entergy, wrote the attorneys.

But Sorrell told the Reformer on July 8 that's an example of new claims of alleged harm that shouldn't be allowed into the record.

The information submitted in the supplemental findings of fact isn't really the issue, claimed Entergy's attorneys, because they believe the judge didn't forbid the parties from submitting additional information, only that the findings be limited to 15 pages.

Because Entergy's attorneys "respected the court's request for brevity," the filings should be accepted, they wrote.

In the filing, the attorneys also contended that Murtha has "broad discretion to decide whether to admit or exclude evidence ..."

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


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