A win for Vermont Yankee

January 20, 2012, 2:07PMANS Nuclear CafeDan Yurman

Federal District Court rules against efforts by the State of Vermont to assert regulatory authority over radiological safety issues

Efforts by the State of Vermont to regulate a nuclear reactor within its borders were struck down on January 19 by U.S. District Court Judge J. Gavan Murtha in Brattleboro, Vt. Murtha ruled in three instances against the state, which had sought to shut down Entergy's (NYSE:ETR) Vermont Yankee reactor, located on the banks of the Connecticut River.

Murtha's ruling follows a three-day trial last September. The decision was fast tracked to insure it would be handed down prior to the expiration of the current license on March 12, 2012.

Murtha wrote in his 102-page decision that the State of Vermont could not use the legislature's refusal to issue a Certificate of Public Good as a basis to force the reactor to shut down. He said that state law is preempted by the Atomic Energy Act, which assigns radiological safety regulation to the U.S. Nuclear Regulatory Commission. The judge emphasized that the legislature was focused on "radiological safety concerns" that are the province of the NRC.

A second item in the judge's ruling enjoined the State of Vermont from using its assertion that it has authority over management of spent fuel at the site as a means to force the plant to shut down.

Finally, the judge said that the legislation could not make a condition of continued operation contingent on the existence of a below-wholesale-market power purchase agreement between Plaintiffs and Vermont utilities, or requiring Vermont Yankee to sell power to Vermont utilities.

Immediate and irreparable harm

"The harm to the public interest from even a temporary shutdown of the Vermont Yankee Station would be significant, immediate, and irreparable," the judge wrote.

Entergy claimed in its filing with the court that the state's plans to shut down the reactor would cause the utility to lose highly trained employees, cost jobs both at the plant and in the community, make the electric grid in New England less reliable, force electricity prices to rise, increase greenhouse gas emissions, and hurt state tax revenues.

Vermont likely to appeal ruling

The court ruling will likely be appealed by the State of Vermont to the 2nd U.S. Court of Appeals in New York, but in the meantime, the reactor will continue to operate and supply electricity to Vermont ratepayers.

The 605-MW plant provides about one-third of the electricity used in Vermont.  Rates for electricity in Vermont are significantly lower than in surrounding states due to the low cost of producing it by the reactor.

Vermont Gov Peter Shumlin

Despite the economic advantages the plant provides, Vermont Governor Peter Shumlin said in a statement he was "disappointed" with the ruling.

"I continue to believe that it is in Vermont's best interests to retire the plant," he said.

Entergy said in a statement issued by its corporate offices that "the ruling is good news."

Background to litigation

Vermont has  attempted to assert regulatory authority over reactor operations, management of spent fuel, and to attempt to use economic leverage on rates as a contingency for allowing the plant to stay open.

The NRC granted a 20-year extension to Vermont Yankee's initial 40-year license in March 2011. Vermont's State Senate had previously voted in 2010 by 26-4 against allowing the Vermont Public Service Board to issue a Certificate of Public Good. There was no corresponding vote in the State House.

The vote against the plant came following a low point for the reactor. Entergy's plant managers in testimony before a legislative committee said that the reactor did not have underground pipes that carried tritium.

It was later found that not only did the plant have the pipes, but that they were leaking tritium into the ground within the plant boundaries. The amounts turned out not to be a threat to public health and safety, but the damage was done to the company's credibility.

The ruling in Vermont is significant elsewhere as neighboring New York state has been trying to shut down the two operating reactors at Entergy's Indian Point power station. Reactor relicensing actions are pending with the NRC.




Dan Yurman publishes Idaho Samizdat, a blog about nuclear energy and is a frequent contributor to ANS Nuclear Cafe.

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