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Boardman writes: "For the better part of a year, Vermont's only nuclear power plant, owned by the Entergy Corporation of Louisiana, has operated unlawfully."

A cooling tower is seen at a nuclear power plant. (photo: Mel Evans/AP)
A cooling tower is seen at a nuclear power plant. (photo: Mel Evans/AP)

Unlawful Nuclear Power in Vermont

By William Boardman, Reader Supported News

16 January 13

Reader Supported News | Perspective


Shut down Vermont Yankee request is before Vermont Supreme Court.

or the better part of a year, Vermont's only nuclear power plant, owned by the Entergy Corporation of Louisiana, has operated unlawfully, without the necessary "certificate of public good" it needs from the state's Public Service Board (PSB).

On December 4th, the New England Coalition on Nuclear Pollution (NEC) filed a complaint with the Vermont Supreme Court, asking the court to issue an injunction that would shut down Vermont Yankee immediately and keep it shut down until such time as Entergy complies with PSB' orders and acquires a valid certificate of public good.

Both Entergy and the State of Vermont filed responses to the NEC motion, seeking its dismissal. On Wednesday, January 16th, the Supreme Court has scheduled a half-hour hearing on the motions to dismiss. The docket lists two attorneys for the NEC and 17 for the other side.

If the court dismisses the NEC complaint, that will be the end of this case, although there are other Vermont Yankee cases pending before the PSB, as well as state and federal court. If the court does not dismiss the complaint, it will schedule a hearing on the merits of the NEC claim, and could then shut down Vermont Yankee.

Undisputed: Vermont Yankee Operates Unlawfully

The basis for the shut down, as presented by NEC attorneys Jared Margolis and Brice Simon, is relatively simple and direct in summary:

  • In June 2002, the PSB issued an order in connection with the sale of Vermont Yankee to the Entergy Corporation (PSB docket 6545). This order is referred to in the pleading as the "Sale Order."

  • Condition 7 of the Sale Order gives Vermont Yankee a certificate of public good "to expire on March 21, 2012."

  • Condition 8 of the sale order says that Vermont Yankee is "prohibited from operating" after March 21, 2012, without either a new or renewed certificate of public good.

  • To date, Vermont Yankee does not have either a new or renewed certificate of public good.

Based on these undisputed facts, the NEC argues, Vermont Yankee should be shut down.

Seeing this problem coming, Entergy had asked the PSB to amend the Sale Order to provide a certificate of public good that would allow it to keep Vermont Yankee running lawfully after March 21, 2012. On November 29, 2012, the PSB handed down a 30-page decision that denied Entergy's request to modify the 2002 Sale Order, pointing out that any hardship Entergy was suffering was of its own making.

Five days later, the NEC filed for an injunction to shut Yankee down.

In early 2008, Entergy had also filed for renewal of its certificate of public good (docket 7440), but that request is still pending.

Entergy and State Object to Law Enforcement

In timely fashion, Entergy asked the Vermont Supreme Court to dismiss the NEC complaint, as did the Vermont Department of Public Service.

The arguments for dismissal included a preference for following the process for appeals laid out in the Vermont Rules of Appellate Procedure, rather that appealing to the Supreme Court in the basis of a Vermont statute, as the NEC had done. The statute used by the NEC states, in full (30 VSA 15):

30 VSA § 15. Decree of public service board; enforcement

A party to an order or decree of the public service board or the board itself, or both, may complain to the supreme court for relief against any disobedience of or noncompliance with such order or decree. In such proceedings and upon such notice thereof to the parties as it shall direct, the supreme court shall hear and consider such petition and make such order and decree in the premises by way of writ of mandamus, writ of prohibition, injunction, or otherwise, concerning the enforcement of such order and decree of the public service board as to law and equity shall appertain. (Amended 1959, No. 329 (Adj. Sess.), § 39(b), eff. March 1, 1961.)

The NEC is a party to the Sale Order, which is "an order or decree" of the PSB. Since there is "disobedience or noncompliance" with the Sale Order, the NEC argues that the plain language of the status gives it the right to "complain to the supreme court for relief." The plain language of the statute also appears to require the Supreme Court to act ("shall hear and consider ... and make such order and decree....")

Given the plain language of the statute, the PSB itself has the right to petition the Supreme Court for enforcement of its own orders. In this case it has not sought to enforce the terms of the Sale Order, even though it has ruled that Entergy is violating Condition 8 of that order.

Other Excuses for Not Enforcing PSB Order

Another argument for dismissal of the NEC complaint, as expressed by the state, is that "other reasonable relief is available in pending proceedings before both the Board [PSB] and the [US] Second Circuit Court of appeals." Neither of these actions deals directly with the question raised by NEC of Yankee's unlawful operation after March 21, 2012, although the PSB is considering whether to grant Yankee a new certificate of public good that would make continued operation legal for another 20 years, and perhaps retroactively.

The state argues that, because the PSB did not seek to enforce its own order in November, when it refused to amend that order (the Sale Order), that means the NEC should be deprived of its independent right to seek enforcement as allowed by statute. The PSB has not been asked by any party to enforce the terms of the Sale Order. In its response to the state's motion, the NEC wrote in part:

"What the Department apparently fails to understand is that whether Entergy must abide by the conditions in the sale order is NOT currently under review by the Board [PSB] or the Federal Court." [emphasis added]

Once the Vermont Supreme Court has heard arguments from both sides, it will decide whether to dismiss the NEC's request for enforcement, or to take evidence at a later date and decide what, if anything, it should do about the unlawful operation of Vermont Yankee. Meanwhile, that operation will continue.

William Boardman runs Panther Productions.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News. your social media marketing partner


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+7 # 4yourinformation 2013-01-17 00:56
This Zombie monster just won't die!
+21 # Third_stone 2013-01-17 08:54
Our nation based on law is in jeopardy. Everywhere we turn moneyed men scoff at the law. The core issue in so many matters today is that the law is not being respected, or is being gutted as in the case of the bankers deregulation. Our key fight is so many cases is for enforcement of the law.
+5 # Rita Walpole Ague 2013-01-17 10:16
I can dream, can't I? Or, has that freedom been trashed, along with rule of law, enforcement of vital regs. on potentially deadly sources, such as this nuclear power plant, freedom of speech/assembly (just ask the Occupy Wall Streeters who were tear gassed, peppers sprayed, clubbed, Tasered),right to a truly free press (i.e. truthtelling Wikileaks), etc. And, what is my dream?

For we the sheeple to restore voting rights for all, vs. permitting voters to have to stand in line for hours, be intimidated while being disenfranchised , be lied to re. where, when, how to vote, and then not having their vote(s) truthfully counted.

Simply put, I dream that some day (please, soon v. later) we will put into place voting and having any and all votes counted honestly, thereby allowing for our getting into office people serving pols. who will actually get into place laws that effectively penalize any and all law/reg. breakers. I dream of mandatory sentencing rather than mere 'slap on the wrist' monetary penalties, for those who steal (i.e. Wall Street villainaire, MIC and oil biggies who keep us in international and local Police State Ain't Great war, war, war for $$$ m.o. And, last but surely not least, I dream of penalization vs. rewards given to environment trashers such as oil pipeliners, frackers, dirty coal promoters, and, most certainly, any and all who turn their backs on so sorely needed NEC, EPA,etc. enforcement.
+7 # jmac9 2013-01-17 12:32
Nuclear power is insanity.

All a nuclear power plant is a giant tea-pot.
You're using the most ridiculously dangerous, poisonous agent - radioactive material -
to boil water.

There is no means to detox the radioactive material - but the criminal nuclear corporations and the government delete any discussion of this.

Thousands of tons of radioactive material sit around as a violent deadly disaster waiting to happen to all life forms -
so that corporations can make money.

In the insanity of the capitalist system, nuclear power proves again that

Profit is more important than you...all of you.
+6 # reiverpacific 2013-01-17 15:12
Where is Bernie Sanders on all this/
The nuclear industry is as corrupt as they come.
I personally knew a nuclear specialist field engineer who pointed out to Westinghouse some problems in the construction spec's and short cuts being taken by the contractor and was fired out of hand for whistle blowing and discredited in the industry press.
This ol' dinosuar in VT is symptomatic of what is wrong with the whole stinking industry. Not only is it impossible to make "Safe nuclear" and the construction (which is the part I know about) complex, expensive and just begging to be compromised (as Fukushima has proven) but the corruption between corporate and government gerrymandering is well documented and heavily lobbied to stay unbothered.
The whole damn industry is a cup of poison and a threat to the Planet (and we're not out of the woods with Fukushima by far yet, as many of us on the west coast are deeply aware, plus we are stuck with the leaching disaster that is Hanford into the bargain) but amnesia prevails in the lightly factual and well funded hands of the owner-media.
0 # Urbancurmudgeon 2013-01-22 15:14
All the anti-nke folks have their heads in a spin but the fact is that in this case, most of the blame is with the various parties involved in enforcement and jurispridence. None of them seem in any way functional. This doesn't seem like a power argument but a government agency argumentand no one seems to have done their job right.

A to the husteria over nuclear power, the consensus by non-hysterical parties is that it is the cleanest, safest form of energy in the current marketplace-if used right- and that's the catch. Money is involved and so safety checks are overlooked and regs are swept under the table in search of the almighty buck.Nuclear power is the cleanest, safest way to create energy, IF we can find a way to control the greed of the owners.

The Urban Curmudgeon

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