The fat lady

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Though Federal District Court Judge J. Garvan Murtha came down emphatically on the side of Entergy Nuclear Vermont Yankee, we don’t expect to be hearing the song of the fat lady any time too soon.

Murtha threw out Act 160, in which the Vermont Legislature gave itself the authority to forbid the Public Service Board from issuing a certificate of public good, which Yankee needs to continue operation past March 21. By removing the Legislature from the equation, he remanded the case back to the PSB, which now will have the opportunity to reinitiate its deliberations over whether the CPG should be issued.

In another setback to the state, Judge Murtha also ruled that the reliability audit required by the Legislature to inform its decision on whether to allow the PSB to issue a CPG, was actually a radiological safety report.

Therefore, the PSB can’t consider the audit in its review.

So while the PSB can’t base its decision on radiological health and safety, it has the authority to deny the CPG based on economics, land use and trustworthiness of the plant’s owner.

"This Court’s decision ... does (not) purport to define or restrict the State’s ability to decline to renew a certificate of public good on any ground not preempted or not violative of federal law, to dictate how a state should choose to allocate its power among the branches of its government, or pass judgment on its choices," wrote Murtha. "The Court has avoided addressing questions of state law and the scope of a state’s regulatory authority that are unnecessary to the resolution of the federal claims presented here."

While the PSB now has the go-ahead to consider all the evidence before it, there are a couple of other issues that could stand in the way of Yankee’s continued operation.

The state is still evaluating whether the plant should receive a new permit that would allow it to discharge heated water into the Connecticut River.

The Agency of Natural Resources was awaiting guidance from the Environmental Protection Agency to inform states such as Vermont, which have been delegated the authority to enforce federal water protection rules, in their decision-making process.

In fact, Vermont has the authority to make the standards even stricter if it so desires, which could prove to be a serious monkey wrench in Entergy’s plan to continue operation of Yankee.

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ANR has also been watching developments at another Entergy-owned plant in New York -- Indian Point -- where the permit issued by the New York Department of Environmental Conservation requires the installation of cooling towers, which Indian Point doesn’t have.

It operates under what is called an open-cycle cooling system, drawing water from and discharging it at up to 100 degrees back into the Hudson River.

Entergy has argued the New York DEC’s decision would force it to close the plant, because the expense involved in building the cooling towers outweighs the profits that would accrue over the next 20 years.

Yankee has cooling towers and, depending on the time of the year and the ambient temperature of the river, can operate in closed- or open-cycle cooling or a combination of the two.

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Deb Markowitz, the secretary of ANR, said her agency is in the process of evaluating whether Yankee should go to closed-cycle cooling, which would forbid the plant from discharging heated water into the river.

Doing so might make Yankee too expensive to operate.

How much it costs every day to run the cooling towers is proprietary information, but industry analysts have stated it costs up to $1 million a day to run them.

And then there is the case the state has filed against the Nuclear Regulatory Commission in Washington, D.C.

First, some history we all should know by now: In 2006 Entergy applied to the NRC for a new license to operate Yankee facility for a 20-year period beyond March 21, 2012, the expiration date of its then-existing operating license and in March 2011, the NRC issued a renewed license.

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But in June 2011, the Vermont Department of Public Service and the New England Coalition, which has opposed the operation of Yankee since its startup in 1971, asked the D.C. court to reverse the NRC’s decision to issue the license based on NRC’s failure to determine whether the plant had a valid Clean Water Act certificate.

According to the Clean Water Act, prior to the issuance of an extended license, a plant’s operator must submit a request for a Clean Water Act permit and according to court documents submitted by the state, there is nothing in the record that indicates the NRC even asked Entergy or the state if Yankee had the certificate

"The issue is between the state and the company," said an NRC spokesman.

But according to the state, it’s the obligation of the operator to get the certificate and the NRC should have noted whether it was done of not.

Those both in favor of and opposed to Yankee’s continued operation will naturally be keeping a close eye on both the Agency of Natural Resources and the D.C. circuit court.

And finally, we must await the state’s decision on whether it will appeal Murtha’s ruling to the federal appeals court.

Pro-Yankee forces have the well-earned right to celebrate Murtha’s decision, but like the running back who holds the ball in the air before crossing the goal line, they should beware of someone running along and knocking it out of their hands.

We would suggest they not gloat over Murtha’s decision right yet. Not only is the fat lady not singing, it would be bad form.

After all, no one likes a sore winner.


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