On Feb. 11, the Vermont Public Service Board plans to begin hearing two weeks of arguments for and against Vermont Yankee's continued operation, as the board considers whether to relicense the Vernon nuclear plant.
But Entergy Corporation, the plant's operator, has filed an appeal with the Vermont Supreme Court over whether the state board should move ahead with this process.
In essence, the Louisiana-based company argues that the Supreme Court should decide the fate of the plant's permit, or Certificate of Public Good, to operate “based on the existing record.”
Subsequently, the anti-nuclear New England Coalition filed a motion last week with the Public Service Board to halt the board's planned proceedings until the Supreme Court has ruled on Entergy's appeal. The coalition is currently involved in its own Supreme Court litigation with Entergy that is aimed at shutting down Vermont Yankee based on previous board orders.
Jared Margolis, the coalition's lead attorney, said that moving forward with the board's proceedings before a court decision is made would put public dollars at risk.
“Since Entergy has decided to appeal the Board's decision to open the current docket for review of Entergy's CPG petition, and has asked the Supreme Court to issue a CPG based on the record that was developed in 2009, it would be a huge waste of the public's resources to continue with the current docket now that Entergy has put the issue of relicensing before the Supreme Court,” Margolis said in a public statement.
Chris Recchia, commissioner of the Public Service Department, said his team is considering the coalition's motion.
“We're still evaluating this, and we are a little surprised about the motion in that we feel confident in the CPG process, and we feel like it should keep moving,” he said.
Entergy representatives were unwilling to connect VTDigger with the company's attorneys. The board is asking parties to the case to comment by the end of the day on Feb. 6.
Margolis laid out the five main stances that the court could potentially take on this appeal. He said the court could deny or issue Entergy a permit. The court could also require the board to rule on the permit based on the previous record, or it could require the board to approve the permit. The court could also side with the discretion of the Public Service Board and rule that Entergy must receive a new permit via the board's new docket process.
Meanwhile, the Public Service Department is gearing up for the hearings.
Last week, the department submitted testimony by Entergy executives and motioned for the board to consider it. Much of the testimony stems from 2002, when Entergy purchased Vermont Yankee.
“The purpose (of the motion) is to remind the board of the conditions (Entergy) agreed to when it bought the plant, and what it was telling the board and the parties at that time - specifically about the board's authority to regulate the plant and about their willingness to comply with board orders and Vermont law,” said Geoff Commons, director of public advocacy for the department of public service.
The department also subpoenaed Connie Wells to testify at the proceedings. Wells was Entergy's senior manager of business development in 2002. She was responsible for overseeing the company's acquisition of new nuclear plants.
She provided testimony in Feb. 25, 2002, leading up to the company's acquisition of the plan. At that time she told the board Entergy would not continue to operate the plant after the end of its license in March 2012, if it failed to receive a new Certificate of Public Good.
The records provided by the department also include testimony from Michael Kansler, Entergy's Chief Operating Officer at the time.
On Feb. 6, 2002, Michael Dworkin, then-chair of the Public Service Board, asked Kansler if Entergy would attempt to pre-empt the Public Service Board if the board did not grant the company a new operating license.
After a fairly tepid response to his question, Dworkin asked Kansler to clarify his company's stance. Kansler then gave the board chair “a 100 percent guarantee” that Entergy would not try to pre-empt the board if the board decided against relicensing or extending the plant's Certificate of Public Good.
The state of Vermont and Entergy are currently entangled in a case that is pending in the U.S. Court of Appeals. It concerns the Legislature's ability to shut the plant down.
Entergy argues that the Legislature's authority over this issue is preempted by the Nuclear Regulatory Commission. The company claims legislators created policies that gave them power over the plant's permitting process for safety reasons, which fall under the purview of the federal regulatory agency.