Federal judge: Vt. nuclear plant can remain open

MONTPELIER, Vt. (AP) — Vermont’s only nuclear plant can remain open beyond its originally scheduled shutdown date this year, despite the state’s efforts to close the 40-year-old reactor, a federal judge ruled Thursday.

The ruling by U.S. District Judge J. Garvan Murtha in Brattleboro is a win for the Vermont Yankee plant’s owner, New Orleans-based Entergy Corp., which had argued during a three-day trial in September that the state’s efforts to close the plant were pre-empted by federal law.

The federal Nuclear Regulatory Commission granted a 20-year extension on Vermont Yankee’s license in March 2011. But state law required Vermont lawmakers to support the license extension as well. A bill to grant legislative approval was defeated 26-4 in the state Senate in 2010 and the House has never acted.

Vermont is the only state with a law giving it a say in nuclear plant relicensing.

Entergy argued that the state was moving to close Vermont Yankee out of concerns over plant safety, an issue that the state agreed is solely the NRC’s jurisdiction. The state maintained it had other reasons, including that Vermont Yankee didn’t fit in to its energy plan and was likely to be increasingly unreliable as it aged.

The judge said the record showed clearly that the state’s primary concern was safety. He said instances from legislative record “almost too numerous to count ... reveal legislators’ radiological safety motivations and reflect their wish to empower the legislature to address their constituents’ fear of radiological risk.”

Entergy issued a statement praising the decision.

“The ruling is good news for our 600 employees, the environment and New England residents and industries that depend on clean, affordable, reliable power provided by Vermont Yankee,” the company said.

Gov. Peter Shumlin’s office issued a statement saying he was “very disappointed ... Entergy has not been a trustworthy partner with the state of Vermont.”

“I continue to believe that it is in Vermont’s best interest to retire the plant. I will await the attorney general’s review of the decision to comment further on whether the state will appeal,” the statement said.Sandra Levine, a lawyer with the Conservation Law Foundation, which supported the state’s case, called the decision “a setback for Vermont and a setback for clean energy. Vermont is being forced to prop up a dirty and aging nuclear reactor and its untrustworthy owners.”

The matter now goes back to the Vermont Public Service Board, which still has to approve the plant’s continued operation. Entergy lawyers sought during the federal court case to sharply narrow the grounds on which the board could shut the plant down.

Attorney General William Sorrell, who called the decision “more of a loss than a win,” said Entergy was successful in restricting” the board’s authority to some extent. The decision said Vermont can’t demand bargain rates for electricity as a condition for Vermont Yankee to stay open. The board in the past usually has had authority to set such conditions.

The 2010 Senate vote came at what may have been the reactor’s political nadir. Just a month earlier, it was revealed that tritium, a radioactive isotope of hydrogen, had been leaking from under the plant, and that plant officials had made misleading statements to state lawmakers and regulators indicating that Vermont Yankee did not have the sort of underground pipes that carried tritium — pipes it was later shown to have.

Vermont Yankee’s initial 40-year license expires in March, and the debate and federal court case over the plant’s future were being watched closely both by the nuclear industry and anti-nuclear groups as a measure of whether a state in which nuclear critics have gained political control can close its lone reactor.

The losing side in federal court was expected to appeal Murtha’s decision to the 2nd U.S. Circuit Court of Appeals in New York, though it was not immediately known whether the state would follow through with that.

Other laws passed by Vermont’s liberal Legislature have been overturned in recent years in legal challenges that reached the U.S. Supreme Court. The high court in 2006 struck down a state campaign finance law as too restrictive, and last year nullified a state law that sought to curb data collection for drug companies on which medicines doctors were prescribing.

Entergy filed suit against the state in April, a month after the NRC granted the 20-year license extension.

The 605-megawatt Vernon plant in the state’s southeast corner historically has provided about a third of the electricity used in Vermont, but it would be expected to sell all its power out of state if it continues operating. Vermont’s utilities have lined up future power supplies from Canada and other sources, a fact that Entergy’s lawyers said should further minimize the state’s role in regulating Vermont Yankee.

In July, Murtha denied Entergy’s request to issue a preliminary order allowing the plant to operate while the lawsuit works its way through the courts.

During both the hearing on that request and the trial, Entergy’s lead lawyer, Kathleen Sullivan, pointed to numerous instances in legislative committee hearings and floor debates in which lawmakers said their primary concern with Vermont Yankee was safety.

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