New England Coalition asks state’s high court to shut down Yankee
By Susan Smallheer
Staff Writer | December 05,2012
MONTPELIER — Armed with a ruling last week from the Public Service Board that was sharply critical of Entergy Nuclear and its ongoing decision to keep Vermont Yankee running without a new state permit, an anti-nuclear group has petitioned the Vermont Supreme Court to shut the plant down.
In a complaint filed Tuesday with the Vermont Supreme Court, the coalition sought “injunctive relief ... for disobedience and noncompliance” with the Public Service Board’s 2002 order approving the sale of Vermont Yankee to Entergy Nuclear.
One condition of the 2002 sale — Condition 8 — set by the board stated that Entergy would not operate Vermont Yankee beyond March 21, 2012, unless it had a new state certificate of public good.
Tuesday’s court action is the latest in a web of increasingly complex legal actions surrounding the controversial nuclear plant in Vernon. Entergy Nuclear has federal approval to keep Yankee operating for another 20 years, but it still lacks a state certificate from the Public Service Board, which isn’t expected to rule until late next year.
“We filed a complaint with the Vermont Supreme Court to ‘cease and desist operation,’” said Raymond Shadis, senior technical adviser for the New England Coalition. “We think the board’s order issued Thursday now clarifies that Entergy is operating in violation of the board’s order of 2002.”
“The law says that any party may seek enforcement of the board’s orders from the Vermont Supreme Court,” said Shadis. “NEC is stepping up to the plate and is seeking enforcement.” He said the coalition wants Vermont Yankee to shut down until the PSB rules.
The board had ruled in May that Entergy’s argument — that it had filed for a new permit years in advance of the March 21, 2012, deadline and still didn’t have a permit from the PSB — wasn’t a valid reason under that section of state law.
James Sinclair, spokesman for Entergy Nuclear, said the company had not read the NEC’s filing and declined to comment late Tuesday.
Shadis said the coalition’s attorneys said the PSB had included “a big broad hint” in its decision Thursday, inviting parties to the 2002 sale case to file the challenge. The coalition was a party.
“It’s a real confrontation,” said Shadis. “We are bumping heads with Entergy. The board says that they are operating in violation of their original order.”
Shadis said the legal challenge to shut down Yankee was separate from other legal efforts unfolding in federal court between the state of Vermont and Entergy. This issue has nothing to do with nuclear safety or federal law pre-empting state actions, he said.
Jared Margolis, the coalition’s Vermont attorney who is now an environmental law professor at the University of Oregon, said the board’s ruling opened up the possibility of an outside party pushing for enforcement.
“The board gave a clear order, saying Entergy is operating in violation, and we’re trying to enforce the commitments that Entergy made. ... It’s time that someone asked the court to enforce the sale agreement.”
Margolis, who has represented the coalition for several years, said he asked for an expedited hearing on the matter.
Thursday’s ruling from the Public Service Board denied two motions from Entergy asking the board to rewrite two of its earlier decisions about Yankee, the 2002 sale docket and the 2006 decision granting Entergy permission to build a storage facility for its high-level radioactive waste. The coalition said its filing had nothing to do with the waste facility decision, which could trigger the federal pre-emption nuclear safety issue.
The board said Entergy did not meet the legal standard for such an amendment to its original decisions, and it pointed out that Entergy was technically in violation of that section of the 2002 sale approval.