VY future could be determined by 1 line in PSB memo

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BRATTLEBORO -- The continued operation of Vermont Yankee nuclear power plant in Vernon could hinge on one sentence in an order issued by the Public Service Board on July 11, 2002.

Jared Margolis, counsel for the New England Coalition, which has opposed Yankee's operation for four decades, presented the order -- with the line highlighted in bold -- to the PSB during a hearing in Montpelier on Friday.

"Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. are authorized to own and operate Vermont Yankee beyond March 21, 2012, solely for the purposes of decommissioning," reads the line on Page 17 of "Order Re Motions to Alter or Amend, and to Unseal Exhibit," in Docket 6545, the hearing before the PSB authorizing the sale of Yankee to Entergy.

"Continued operation depends on compliance with the existing certificate of public good," Margolis told the Reformer. "The license that is in existence doesn't allow them to operate other than to decommission the plant. The license remains valid, but not for the plant's operation."

The hearing on Friday was in response to a request by Entergy that the board issue without delay a new CPG for the plant's continued operation. Following the request, the PSB sent out a memo to all the parties involved with a list of questions to be addressed during the hearing.

Those questions included whether the record should be reopened to allow for new evidence, whether a new economic analysis should be conducted and the status of the storage of spent fuel at the plant.

In documents filed with the U.S. District Court for the District of Vermont, 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."

"The Attorney General agrees with the Department that, pending 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 ..." stated the court documents, which were filed on March 7.

In January, Judge J. Garvan Murtha ruled the Vermont Senate's decision to prohibit the board from issuing a certificate was based on safety, which is under the purview of the Nuclear Regulatory Commission. Murtha invalidated legislation that gave the Legislature any role in determining whether a CPG should be issued for continued operation or storage of spent fuel. But in his decision he also affirmed the PSB's role in determining the fate of Yankee.

Vermont appealed Murtha's decision to a federal appellate court. At the same time, Entergy appealed the portion of Murtha's decision that reaffirmed the board's role in issuing a CPG for spent fuel storage.

Margolis said it appears neither the AG nor DPS were aware of the line in the July 11, 2002, document prohibiting the plant's operation after 2012.

"It doesn't say the current license doesn't expire until the final application has been determined," he said. "Continued operation depends on compliance with the existing CPG."

The July 11 order was in response to a motion by Entergy that it return to Vermont ratepayers only half of the excess decommissioning funds left over after the site is cleaned up.

Buried deep in the order are several conditions that directly affect the PSB's authority to prohibit Yankee from operating after March 21, 2012, said Margolis.

On Page 13, the board stated, "If it accepts its Certificate, Entergy will become bound by the terms of the Certificate, including the conditions specifically required by this Board."

In the July 11 order, the board also stated, "Entergy made clear at the oral argument on July 2 and again by its separate filing that it cannot and will not challenge any provision of the (Memorandum of Understanding approving the sale) or the Board's Decision once the Transactions close."

Margolis said his reading of the documents submitted in Docket 6545 lead him to conclude for Entergy to continue to operate Yankee past March 21 it has to receive a new CPG and not just apply for one.

Margolis did admit, however, that Entergy has a valid argument that it submitted a timely application for the new CPG four years ago, which was put on hold when the Legislature inserted itself in the process.

"Entergy can argue that the delay in getting a CPG is the fault of the state," he said.

Despite that, said Margolis, Entergy need not have waited until after Judge Murtha rendered his decision in January.

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"Entergy could have moved forward and asked for a CPG anyway," he said.

During the hearing on Friday, Margolis said the board asked its toughest questions of Entergy, including why it waited so long to ask the board to move ahead with the CPG hearings.

"They were also trying to push Entergy on the need for a CPG to construct a new spent fuel storage facility," he said.

The current dry cask fuel storage pad, for which Entergy received a CPG in 2005, is only designed to hold any nuclear waste created up until the end of this operating cycle, which is scheduled to end with a refueling outage sometime in April 2013.

In the appeal documents it filed in federal court, Entergy is arguing it doesn't need permission from the state to store the spent fuel on the storage pad.

It only needs a CPG for a "new" pad, Entergy wrote.

Margolis doesn't argue that point.

"They have enough room on the pad to last maybe through another fuel cycle, maybe two, but not for continued operation for the next 20 years," said Margolis.

That issue might not require a shutdown on March 21, he admitted, but the line on Page 17 indicates the PSB could do so.

Clay Turnbull, spokesman for the New England Coalition, said the board made clear its concern that Entergy stand by its word.

"It kept asking whether it should be looking into their hearts and minds because what you say isn't always what you mean," said Turnbull.

A spokesman for Vermont Public Interest Research Group agreed with Turnbull.

"The Public Service Board made it clear today that they're not going to be bullied by Entergy," said Ben Walsh, VPIRG's clean energy advocate. "They're obviously taking this very seriously, and that's encouraging."

In a press release, the Department of Public Service was also encouraged by the PSB's hearing and its approach to Entergy.

"While Entergy conceded the Board's continuing authority over it today, past experience shows that Entergy cannot simply be taken at its word. Therefore, the Department will seek to hold Entergy to its commitments and will work to uphold the state's important and legitimate authority and ensure that the general good of the state is protected."

A spokesman for the Vermont Natural Resources Council, which is concerned Entergy violated the Public Trust Doctrine when thousands of gallons of tritiated water leaked into the ground beneath the plant, said the PSB needs to reopen the hearing to allow for new evidence to be entered into the docket, including the leak.

"We found the Board to be very focused on important questions, including whether the CPG proceeding needs to start anew due to years of delay and concerns about the existing record and evidence that may be tainted or preempted by federal law due to Judge Murtha's ruling," said Jamey Fidel, general counsel for VNRC. "Vermont Natural Resources Council and the Connecticut River Watershed Council believe the record needs to be reopened at a minimum to allow consideration of new evidence (including) impacts to the environment such as groundwater contamination and remediation costs, the track-record of Entergy in handling contamination matters, and impacts to the Connecticut River from thermal discharges."

A spokesman for Entergy said he had no comment on the hearings.

The parties involved are expected to file additional documents on March 16.

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


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