US NRC should stay out of Vermont Yankee lawsuit: senator
Washington (Platts)--16Jun2011/549 pm EDT/2149 GMT
Senator Bernie Sanders of Vermont told the US Nuclear Regulatory
Commission at a Senate hearing Thursday to stay out of the state's legal
fight to keep the Vermont Yankee nuclear power plant from operating past 2012.
Sanders, an Independent, said during the hearing that he had heard the
NRC voted 3-2 Wednesday to "urge the [US] Department of Justice to get
involved" in a lawsuit against the state by Entergy, which wants to operate
Vermont Yankee for 20 additional years.
Entergy in April filed suit in US District Court for the District of
Vermont, requesting an injunction against the state's efforts to shut the
plant. Entergy argued Vermont's action "is pre-empted by the federal Atomic
Energy Act" of 1954 because a "state may not interfere with the federal
government's exclusive authority over the operation of a nuclear power plant."
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Speaking with reporters after the hearing, NRC Chairman Gregory Jaczko
declined to confirm that a vote had taken place, saying any decision on
disclosing that information is "a matter for the commission."
The NRC commissioners, who were testifying on the NRC's review of US
plants after the start of the Fukushima nuclear accident in Japan in March,
declined during the hearing to confirm the vote or discuss the Wednesday
meeting with DOJ.
Some of the commissioners said they had been advised by DOJ, or by NRC's
solicitor, not to discuss the Wednesday commission meeting on the lawsuit
because such conversations on litigation involving the agency are legally
Attorneys with both NRC and DOJ advised commissioners not to comment on
the issue, Commissioner William Ostendorff said in an interview Thursday at
the Energy Efficiency Contractors Group's Washington meeting.
"It is not your business to get involved in that fight. We do not need
the NRC to get involved in this debate," Sanders told the commissioners.
Entergy is "aware of the statements made during this morning's Senate
committee hearing, but we have not received any official notification of
action by the NRC and therefore are unable to comment at this time," company
spokesman Michael Burns said in an email reply to questions Thursday.
Charles Miller, a spokesman for DOJ's Civil Division, said in an email
Thursday the agency "has no comment" on potential US intervention in the suit.
Judge Garvan Murtha of the US District Court for the District of Vermont
has the discretion to permit DOJ to file a brief in this case, on behalf of
either party, prior to a June 23 and 24 hearing on Entergy's preliminary
injunction motion, Patrick Parenteau, an law professor at the Vermont Law
School, said in an interview Thursday.
DOJ could do so, as well, prior to a hearing on the merits of the case
Murtha set for October, Parenteau said. He has not worked for Entergy or
Vermont, he said.
In March, the NRC renewed Vermont Yankee's license for 20 years, until
March 2032. But the state says it can deny Vermont Yankee a new certificate
of public good to operate beyond March 2012.
Jaczko said in a press conference call March 10 after the NRC vote
renewing the plant's license that "there are a variety of permits required
for this facility to operate and NRC [license renewal] is just one piece of
it." Jaczko said the issuance of operating permits, such as a certificate of
public good required for power plants, and issues related to generator
reliability, are "all in the purview of the state."
Governor Peter Shumlin, a Democrat, has said the state's Senate has no
plans to reverse a 2010 vote that prohibited the state's Public Service Board
from considering Entergy's application for a certificate of public good, which
is needed for the plant to operate beyond its current, 40-year license.
Vermont's authority in this regard is "unique" among the states, Sanders said
during the hearing.
Citing a 1983 US Supreme Court decision, Pacific Gas & Electric Co. v.
State Energy Resources Conservation and Development Commission, Sanders said
federal pre-emption only extends to issues of nuclear safety, not to
"economic" questions such as whether to allow a nuclear power plant to be
built or to continue to operate.
"If a state feels it wants to buy hydropower, promote sustainable energy
or investment energy efficiency, the Supreme Court [decision] said they have
a right to do this," he said.
Sanders also said during the hearing of the Committee on Environment and
Public Works and its Subcommittee on Clean Air and Nuclear Safety, that
operating the plant for 40 years -- its initial licensing period -- "is
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