It's back to the drawing board for Entergy Corp. in its quest for a new Certificate of Public Good (CPG) for the Vermont Yankee nuclear power plant.
In an order issued late last Thursday, the Vermont Public Service Board said the company needs to file an amended petition asking for a new CPG, and the board will open a new docket in the proceeding.
The order provides some clarity for Entergy and intervenors in the case who have pushed for the board to start a new record rather than “scrub” the existing one of impermissible information based on impermissible state activity. In a decision handed down earlier this year, a federal judge found attempts by the Vermont Legislature to have a hand in the nuclear plant's relicensing process overstepped the state's authority by trying to regulate nuclear safety.
At a status conference earlier this month, the board discussed the merits of starting over in a new docket rather than going back into the existing one, which has been open since 2008, to remove any improper references.
Environmental groups that intervened in the relicensing docket say the move to start over is a good thing.
“It's a good indication that the board will be taking a very careful look, and it has rejected Entergy's narrow view of what the state can regulate,” said Sandra Levine, senior attorney with the Conservation Law Foundation in Vermont.
Levine said the order will allow groups to enter evidence such as false statements made by Entergy to regulators about the existence of underground pipes that carried radioactive material at the plant.
Jared Margolis, an attorney who represents the anti-nuclear group, the New England Coalition, said starting over is the right thing for the board to do.
“We want to start over and make sure this focuses on the right things,” Margolis said. “We think there is enough support for the board to make a valid decision that continued operation of the plant is not in the public good. We don't want to give Entergy an excuse to say it's not fair and based on preempted concerns.”
State or federal regulation?
The board appeared to leave itself a wide amount of discretion to consider any non-preempted factors that would indicate whether the continued operation of the plant is in the “public good.”
The order states, “we conclude that, as a general matter, we may consider any non-radiological-health-and-safety matters that bear upon the general good of the state and that do not directly conflict with the Nuclear Regulatory Commission's exercise of its federal jurisdiction or frustrate the purposes of federal regulation.”
Parties will be able to re-introduce any evidence that the board has already seen in the existing docket, as long as it does not reflect the state trying to regulate radiological safety.
A statement released on behalf of Entergy by spokesman Michael Burns said: “The PSB's order gives us additional clarity regarding the next steps in Vermont Yankee's quest to obtain a Certificate of Public Good from the State and, on behalf of our more than 600 employees and the myriad businesses who rely on the continued operation of Vermont Yankee, we look forward to the opportunity to demonstrate that the plant deserves a new Certificate of Public Good.”
Elizabeth Miller, commissioner of the Vermont Department of Public Service, said the department's position is consistent with how the board's order came out.
Miller said a new proceeding would allow the board to consider new evidence and allow the board to make rulings on old evidence. She said the board has still not ruled on a motion by the department asking for assurance from Entergy that the company will continue to keep its obligations under the existing permit, including paying taxes and fees to the state.
Entergy has until April 16 to file a new petition. The board has scheduled a tentative pre-hearing conference for May 2.
In the meantime, Vermont Yankee continues to operate with a current license from the Nuclear Regulatory Commission and a state license that expired March 21. Contracts with Vermont utilities have also expired, and all electricity from the plant is currently being sold out of state.
Entergy asked the Public Service Board and Federal Judge J. Garvan Murtha for assurance that the plant could continue to operate during the relicensing proceeding earlier this month. Murtha issued an opinion prohibiting the state from enforcing a law that would prevent Vermont Yankee from storing spent fuel produced after March 21.
The Public Service Board, on the other hand, denied Entergy's motion for a ruling that the plant could continue to operate but at the same time didn't order it to shut down.
Last Thursday's order ensures the plant can operate in the meantime.
It states: “To the extent that Entergy VY has any entitlement under [Vermont law] to continue operation of Vermont Yankee, the requirement in today's Order that Entergy VY file an amended petition, and our opening a new docket to consider the amended petition, are not intended to negate such rights.”
Meanwhile, both parties have appealed Murtha's decision to the Second Circuit Court of Appeals, and many observers say the case could make its way to the U.S. Supreme Court.