Entergy sues to keep Vermont nuclear plant open

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Posted: Apr 18, 2011 5:05 PM
Entergy sues to keep Vermont nuclear plant open

The owners of Vermont's troubled nuclear plant sued state officials Monday to stop them from closing the plant next year, setting up a court fight about who has jurisdiction _ state or federal nuclear regulators.

New Orleans-based Entergy Corp., which recently won a new 20-year license for Vermont Yankee but has fought with state officials since the discovery of radioactive tritium at the plant, says the state doesn't have the authority to prevent continued operation of Vermont Yankee.

"The question presented by this case is whether the state of Vermont ... may effectively veto the federal government's authorization to operate the Vermont Yankee Station through March 21, 2032," the lawsuit says. "The answer is no."

The civil suit, filed in U.S. District Court in Burlington by subsidiaries Entergy Nuclear Vermont Yankee and Entergy Nuclear Operations, lists the defendants as state Attorney General William Sorrell, Gov. Peter Shumlin and the members of the state Public Service Board.

"The battle is joined," Sorrell said.

Vermont is alone among the states in asserting that it has authority to block a nuclear plant re-licensing, historically the purview of the U.S. Nuclear Regulatory Commission.

In 2006, it enacted a measure giving the Legislature the authority to say no to a license renewal for Vermont Yankee, a generating facility on the banks of the Connecticut River that's had somewhat of a love-hate relationship with the state since opening in 1972.

Lately, it's been more hate than love: Last year, the state Senate voted 26-4 to block the plant from operating past March 2012, when its state permit expires. That followed revelations that the plant in Vernon had leaked radioactive tritium into groundwater and soil around and admissions by its owners that they had misspoken when they told Vermont regulators and lawmakers that the plant didn't have the kind of underground piping that carries radioactive material.

Entergy argues that Vermont's law violates the Atomic Energy Act, which the company says gives jurisdiction to the federal government. The company also says the state unfairly impeded commerce when its officials said they would not grant a new state permit unless Entergy entered into power-purchase agreements with below-market rates favoring Vermont utilities over others.

In a conference call, Entergy Corp. executive Richard Smith said the company didn't want to resort to litigation.

"We believe we have made every reasonable effort to accommodate the state of Vermont and its officials while allowing for the continued operation Vermont Yankee, an outcome that benefits all stakeholders, including Vermont consumers and the approximately 650 men and women who work at the plant," he said.

The suit says Vermont officials changed the rules _ set out in a 2002 memorandum of understanding when Entergy bought the plant _ by passing a law four years later that said Yankee couldn't operate past 2012 without the Legislature's approval.

Under the original agreement, Yankee's owners needed the approval of the state Public Service Board, which the suit said is a "quasi-judicial expert decision-maker, independent of legislative control."

Giving lawmakers the say-so instead opened the door to politicians who could say no to re-licensing for arbitrary reasons, according to the suit.

Shumlin has called for the plant's closure, and environmental groups describe it as an aging facility that should be mothballed.

Shumlin, who says Entergy agreed to the terms of the law it is now challenging, stood shoulder-to-shoulder with Sorrell at a news conference Monday and read from a 2006 news clipping that quoted a Vermont Yankee spokesman welcoming it and commending lawmakers for passing it.

"Entergy is now attempting to rewrite history, breaking its own promises and its own support of Vermont law," Shumlin said. "Instead of following Vermont law, Entergy seeks to subject the taxpayers of Vermont to an expensive legal proceeding."

Shumlin said he met with Entergy representatives March 30 and that they told him then that they planned to keep operating the facility but not to sue the state.

"The point of the matter is that Entergy does not do business the way we do business in Vermont. We tell the truth. We follow the laws of the state," the governor said. "How can you complain about a law that you supported when it passed and was signed into law by (former) Gov. James Douglas? It just puzzles me."

Asked about the company's claim that state officials were holding up the permit in hopes of getting bargain prices on power, Sorrell said: "Let them prove that in court."

Environmental advocates said Entergy should follow the state's wishes.

"You need two permission slips," said James Moore, clean energy program director for the Vermont Public Interest Research Group, which has long sought Yankee's closure. "It can't be Dad told you one thing, Mom told you another. It doesn't work that way. You need permission from the state you operate in and from federal regulators."

Sandra Levine, senior staff attorney for the Conservation Law Foundation, a New England environmental advocacy group, said: "They're disobeying the law and they're asking the court to sanction their illegal activity."

Entergy had little choice but to sue, said William Driscoll, vice president of Associated Industries of Vermont, a 500-member group that represents manufacturers and related businesses.

"If the governor and legislative leaders do not now take responsibility for finding some sort of positive resolution of this issue with Vermont Yankee, they will ultimately be responsible for the harmful economic consequences that will result from the plant either shutting down or continuing to operate without favorable power contracts with our utilities," Driscoll said.