BRATTLEBORO -- The Vermont Public Service Board is wrong to conclude it has any authority to order Entergy to cease operations of its nuclear power plant prior to making a decision on whether a new certificate of public good should or should not be issued for Vermont Yankee's continued operation.
So stated attorneys for Entergy, in a motion filed with the Vermont Supreme Court on Dec. 19 asking the court to dismiss a motion filed by the New England Coalition.
NEC, through its attorneys Brice Simon and Jared Margolis, are asking the Supreme Court to enforce Condition 8 of the sale order that the PSB approved in 2002, allowing Entergy to buy the plant. Condition 8 expressly prohibits the continued operation of the plant after March 21, 2012, unless the board issues a new CPG.
"We filed a motion with the Vermont Supreme Court to dismiss the NEC's complaint on two main grounds: That the group did not exhaust its administrative remedies before the Vermont Public Service Board and that its request to shut down Vermont Yankee is precluded by Vermont's timely renewal law and the federal court's injunction," said Jim Sinclair, Yankee's manager of communications.
While the courts are resolving all legal issues related to Yankee's operation, said Sinclair, "We remain fully focused on safely operating the Vermont Yankee facility today and into the future.
Entergy's motion was prepared by attorneys from Gravel & Shea in Burlington, Downs Rachlin Martin in St. Johnsbury and Quinn Emanuel Urquhart & Sullivan in New York City.
In the motion, the attorneys contend a federal court ruling issued in January prevents Vermont officials from closing the plant while the PSB considers its application for a new certificate.
They also wrote that NEC needs first to appeal to the board for enforcement of Condition 8 before going to the Vermont Supreme Court.
Because NEC has not applied to the board for enforcement, it can't claim it needs "extraordinary relief" from the Supreme Court, wrote the attorneys.
"Such relief is available only ‘when other avenues are foreclosed,' " they wrote.
In addition, they wrote, when NEC served its motion to Entergy, it did not do so in an appropriate manner.
"NEC simply mailed the complaint to Entergy VY's counsel in the PSB proceeding," wrote the attorneys. But according to Vermont rules of procedures, a copy of a summons or complaint must be delivered to "an officer, a director, a managing or general agent, a superintendent, or to any other agent authorized by appointment or by law to receive service of process ..."
The attorneys also contend Section 814(b) of Vermont Statutes applies to the plant's operation. It reads: "When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency ..."
The Vermont Attorney General, in an opinion issued earlier this year, agreed with Entergy's interpretation of Section 814(b).
"The Attorney General did not differentiate, as NEC seeks to do, between the requirements of the CPG and the 2002 Sales Order," wrote Entergy's attorneys. "Had it meant to do so, the Attorney General would have had to state, ‘814(b) applies to the CPG but not to the sale order ...'"
Both the Public Service Board and NEC disagree with the Attorney General, stated the attorneys, a position that "is incorrect."
"Although a ‘sale' may not be an ‘activity of a continuing nature,' the so-called ‘Sale Order' is not limited solely to the sale, but also specifically addresses Entergy VY's ownership and operation of the VY Station, which is an activity of an ongoing nature," they wrote.
In addition, according to federal administrative procedures rules, because Entergy has made a "timely and sufficient application" for a new certificate, the current CPG doesn't expire until the board has issued its official decision, they wrote.
"Absent the rule, an agency would be able to shut down an applicant merely by stalling in its review ..." wrote Entergy's attorneys, adding an applicant could be "unfairly punished if its application were delayed by the existence of subsequently invalidated state statute," such as Act 160, which the Vermont Legislature approved to give itself the authority to forbid the board from issuing a new CPG.
The attorneys laid the blame for the delay squarely on the Legislature and its enactment of Act 160, which led to Entergy's lawsuit, which was filed in federal court in April 2011. Act 160 was invalidated by a federal judge in January, who ruled the Legislature had overstepped its authority when it considered safety, which is under the sole purview of the Nuclear Regulatory Commission, during its deliberations over the future of Yankee.
That federal court's decision, they wrote, prevents the state from shutting down Yankee or bringing any other enforcement action against Entergy until the board has made its decision.
In May 2012, Entergy filed a motion asking the PSB to amend the Sale Order to change Condition 8, but in October, the board denied its request. Entergy's motion to dismiss NEC's appeal to shut down the plant characterizes many of the statements made by the board in its October decision as "erroneous."
That includes the board's ruling on Entergy's contention that it is the state's fault it doesn't have a new CPG.
"Although we recognize that the Legislature took actions that changed the legal landscape, Entergy VY's claimed hardship -- the risks associated with operation after the deadline for termination set out in Condition 8 of the Sale Order - is in large part the result of tactical decisions Entergy VY made concerning legislative strategy, the timing of legal challenges, and the structure of its petition before the board," wrote the board.
The board also ruled that 814(b) doesn't apply to Condition 8 for three reasons: It was a condition of the sale, not a condition of the license issued to Entergy; even if Condition 8 had been interpreted to be a license, Entergy did not seek to amend the condition; and Entergy's interpretation would essentially make Condition 8 superfluous and effectively meaningless."
In addition, stated the board, Condition 8 does not appear in the CPG, and Entergy itself, in its briefs to the board 10 years ago treated the sale separately from the decision whether to issue a CPG. The board contended Entergy VY knew very well that Condition 8 only referred to whether the board should allow the owners to sell the plant to Entergy.
"Had Entergy made different choices, such as immediately challenging the legislative enactments it asserted were preempted, it would not be in the present situation," stated the board. It wasn't until five years after passage of Act 160 did Entergy challenge the statute, noted the board.
The PSB also pointed out its deliberations were delayed when it learned Entergy representatives did not provide accurate information related to the nature of buried and underground pipes carrying radioactive materials.
"Between the time that Entergy VY revealed that it had not been fully accurate in describing underground piping systems and January 2012, Entergy VY made no request for the board to proceed."