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 privileged.

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 enough."

--Steven Dolley, steven_dolley@platts.com --Tom Harrison, tom_harrison@platts.com
--Jim Ostroff, james_ostroff@platts.com