Vyto Starinskas / Staff File Photo The Vermont Yankee Nuclear Power Plant in Vermont on Thursday Sept. 25, 2008.
MONTPELIER — The Public Service Board has put Entergy on notice that its past failure to follow board orders would be a factor in relicensing of Vermont Yankee.
In a ruling made public Friday, the Public Service Board said while Vermont Yankee continued to generate 620 megawatts of electricity, state regulators remember the reason it didn’t have its timely state permit was largely its own fault.
The Public Service Board denied Entergy’s request that the board rewrite conditions of its 2002 certificate of public good, which would have given Entergy the formal imprimatur to keep operating beyond its original shutdown date of March 21, 2012, and to store additional high-level nuclear waste at the Vernon plant.
A federal court ruling in January, which shot down the state’s attempt to close the plant, ordered the plant could continue operating until the matter of its state permit was resolved.
“The board rejected Entergy’s attempt to rewrite prior board orders prohibiting the storage of waste and operation beyond 2012,” said Elizabeth Miller, commissioner of the Department of Public Service.
“It confirms that the board believes Entergy’s conduct in its dealings with the state of Vermont regarding prior board orders is relevant to the questions the board will consider in the renewal process,” said Miller, who is due to become Gov. Peter Shumlin’s chief of staff next month.
The board, while warning that it was a “narrow” ruling, said that many of the regulatory problems facing Entergy Nuclear were brought on by itself and by its “strategic” decisions, and thus it was not entitled to a modified permit, especially a condition concerning the storage of high-level radioactive waste generated after March 2012.
Entergy Nuclear took advantage of Act 74 and built an onsite nuclear waste facility. But then it waited five years to file a legal challenge to it, the board noted.
It needed to build the high-level waste facility, in part, because it chose to increase power production by 20 percent, the board said.
“We do expect that Entergy VY’s compliance with our orders and its willingness to abide by affirmative commitments in testimony and briefs will be relevant considerations,” the board noted.
The board said the January 2010 admission by Entergy that it did not provide accurate information to the board about the potential for leaking underground pipes at Yankee carrying radioactivity during earlier re-licensing hearings, put all the previous board work in legal limbo, and it noted Entergy took months to file updated and corrected testimony, and then waited 16 months before asking the board to “move forward.”
Entergy Nuclear spokesman James Sinclair said the company had received the ruling Friday and was still reading it.
“We had asked for amendments so that our operation would conform to these orders. This is in parallel to consideration by the Public Service Board of our application for a renewal to our Certificate of Public Good.
The decision announced today does not impact Entergy’s plans for plant operations. The board described the denial as “narrow” and said it does not address the “merits of modifying or extending Entergy VY’s obligations under existing orders and CPGs,” Sinclair said via email.
But Sandra Levine, senior staff attorney for the Conservation Law Foundation, said the ruling — while not ordering the shutdown of Vermont Yankee — was a strong indication that the Public Service Board was plainly unhappy with Entergy’s actions and would hold them accountable in the upcoming re-licensing case.
“Entergy continues to operate in defiance of Vermont law, and this decision confirms that,” she said.
“Entergy is in a tight box,” said Levine. “The practical effect? This will be an issue in the board’s current process.” For the company to keep operating Yankee, in clear violation of its 2002 permit from the state, shows it’s not a “trustworthy” company, she said, and could hurt them in the long run.
Entergy Nuclear is fighting on dual legal fronts to keep the troubled Vernon reactor operating. There is a suit pending at the 2nd Circuit Court of Appeals in New York City, and an application pending before the Vermont Public Service Board. The company — and the federal court — agree that the company needs both permits.
Entergy should have acted earlier to seek changes, way before the Legislature voted in 2010, Levine said.
Levine said the PSB ruling in essence turns Entergy Nuclear into a scofflaw, since it is operating Vermont Yankee without its important state permit.
“It agreed to conditions when it bought the plant, and now it is operating in violation of those conditions,” she said.
The board addressed the issue head on. “To be clear, the board does not fault Entergy VY for the choices it made,” the board wrote. “In a different set of circumstances, Entergy VY’s strategy might have produced better results for itself.”
The question, the board said, is whether Entergy proved that it can be relieved of earlier conditions regarding the storage of high-level radioactive waste set back in 2002 when it bought Vermont Yankee from a group of New England utility companies, including Central Vermont Public Service Corp. and Green Mountain Power, which have since merged.
Entergy had argued that it could not have anticipated the actions of the Legislature in 2006, but the board was unconvinced.
“We recognize that events have transpired since the board’s approval of the sale in 2002 that have altered the procedural landscape and approval requirements ... But a fair reading of the history indicates that Entergy VY made tactical choices at each step of the process, such as deferring challenges to statutes it believed were preempted, that ultimately created the hardship of Entergy VY having to decide whether to operate without state authorization.”
“Act 74 became necessary not because the Legislature sought a role for itself, but because of Entergy VY’s needs,” the board wrote.
Act 74 requires approval from the public prior to the storage of all spent nuclear fuel generated after March 21, 2012.
Entergy Nuclear has maintained that the reason it doesn’t have a state certificate of public good is the fault of the Vermont Legislature because in February 2010, the state Senate vetoed Yankee’s continued operation. The legislative action essentially barred the Public Service Board from issuing its final decision on the new certificate.
The board had heard weeks of testimony in the license renewal case, and was on the verge of making a decision, but it had to wait for the Legislature to rule first.
Since then, there have been at least two Entergy lawsuits filed against the state of Vermont, and numerous contentious hearings over the process. Under the board’s current schedule, a final decision in the Yankee case isn’t expected until September 2013.
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