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Back In Court, Yankee Again Argues Federal Law Trumps State's Authority

A deal is being finalized that would resolve financial issues related to the cleanup of the closed Vermont Yankee  nuclear plant.
Jason R. Henske
The Vermont Yankee nuclear power plant on the banks of the Connecticut River in Vernon. The plant's 40-year operating license

Entergy Vermont Yankee and the state of Vermont were back in federal court on Tuesday in another case that tests the state’s authority over the nuclear power plant.

In this latest lawsuit, Yankee charges that state regulators have delayed approval of an emergency generator it says it needs to meet a federal safety mandate.

Entergy wants a court order saying that federal law preempts any Vermont law that would stop plant operators from installing the back up diesel generator by Sept. 1.

Entergy wants to start construction next week. But the company’s latest legal challenge to the state’s authority may be moot in a matter of days. That’s because a hearing officer for the Public Service Board has already recommended that Yankee be given a permit – called a “certificate of public good” – to put in the generator.

But U.S. District Judge Christina Reiss said she wanted to hear the evidence anyway, in case the PSB turned down the hearing officer’s recommendation, or if it approved the permit with conditions that the parties disagreed with.

Yankee is under orders from the U.S. Nuclear Regulatory Commission to have a back-up power source in place by September. The generator is supposed to be available if the plant is disabled and loses electricity from the transmission grid.

Yankee says it needs to start construction by June 11 to get the equipment on line by the federal deadline.

But in court, the two sides faced off over whether Entergy really needs all the time it claims to complete the project.

The state’s lawyer, Jim Webster, grilled Yankee senior project manager George Thomas about the multiple and changing timelines the company had developed for the project. Webster got Thomas to admit that the company had at least 13 different schedules, ranging from 58 days to 83 days. Thomas also acknowledged that Yankee had missed other federally mandated deadlines without getting shut down by the Nuclear Regulatory Commission.

Outside the courtroom, Yankee spokesman James Sinclair said the construction schedule evolved as the company got a better sense of the project.

“So as we got closer to refining the schedule and getting all the details nailed down, the schedule is now what it is,” he said. “So we do need some support either through getting the CPG (certificate of public good) approved or a court injunction so we can proceed and meet the federal requirement.”

But Sandra Levine, a Yankee critic and lawyer for the Conservation Law Foundation, questioned why Entergy had upped the legal ante with another federal lawsuit.

“The reality is the Public Service Board has a recommendation to approve exactly what Entergy is looking for,” she said. “Yet Entergy is taking up a full day of court time in federal district court to try to show that the state has no authority at all, which is simply not true.”

Vermont Law School Professor Cheryl Hanna observed the proceedings and said the case will probably not be as precedent-setting as an earlier Yankee lawsuit, now on appeal.

“I mean the fundamental question is: ‘what is the relationship between a state and a federally regulated, currently operating nuclear facility?’ I think that the specific case we heard today is probably much more minor in that larger question,” she said. “Really, it’s the case pending before the 2nd Circuit now that really is the much more important one.”

In that earlier preemption case, decided by U.S. District Judge GarvanMurtha, Entergy won a federal court order that overturned two Vermont laws that required legislative approve to operate the plant after March of 2012.

There’s no word yet on when Judge Reiss will rule on the latest case.