A decision in the Vermont Yankee case is expected before the end of the year.  Meanwhile, CLF in its role as “friend of the court” submitted a post trial memo supporting the State of Vermont’s right to have a say about Vermont Yankee.  The brief explains that the Vermont Legislature acted well within its rights and why Entergy’s safety characterizations are faulty.

CLF Attorney Sandy Levine was a guest on the Callie Crossley show on WGBH in Boston Monday  afternoon to discuss Vermont Yankee and the future of nuclear power.

Entergy’s nuclear plants continue to have problems calling into question their ability to  be trustworthy and responsibly manage their nuclear fleet.

A problem at Vermont Yankee Sunday night reduced power to 36% and if the situation is not remedied shortly, the plant will be required to shut down completely.

At the Fitzpatrick Nuclear Power Plant in New York State, investigations led to 4 workers being fired, 34 disciplined, and criminal charges brought against the plant’s former radiation protection technician.  The investigations showed that employees falsified tests of safety equipment, failed to document air samples and failed to conduct leak testing, among other things.

In Michigan, the Palisades Nuclear Plant shutdown twice last week, due to a cooling system problem and also an electrical breaker fault.

This weekend Governor Cuomo stated that the Indian Point nuclear plant could easily be replaced with other power sources because “safety[is] first.”

The State of Vermont and the owners of the Vermont Yankee nuclear power facility squared off in Federal Court this week.  It was a three day trial.  The days were long.  The testimony was often technical.  The lawyering was skilled.  Vermont Yankee’s owners say everything is about safety and only the federal government can regulate safety so Vermont’s laws are invalid.  It is a convoluted argument.  The dots don’t connect. 

Vermont’s able lawyers went toe-to-toe with the owners every step of the way.  The State has a strong case.  Vermonters by nature are frank and direct.  Our laws say what they mean and mean what they say.   There is no decade-long grand conspiracy to hide intentions.  The Vermont Legislature acted well within its rights. 

CLF has joined the case as a “friend of the court” and has filed legal pleadings supporting the state.  We are also representing Vermont Public Interest Research Group whose representatives joined me at the hearings, and logged daily accounts of the trial. 

The trial is over.  A decision is expected before the end of the year.  Stay tuned.

Should Vermont have a say in the future of Vermont Yankee, an aging nuclear plant on the banks of the Connecticut River?  A trial to answer that question begins next week.  Vermont Yankee’s owner sued the State of Vermont in April.  Yankee’s owners want to avoid State oversight, and filed suit as a last ditch effort to keep the plant operating.     

The State has a strong case.  For years, Vermont has responsibly overseen the economic, power supply and land use impacts of Vermont Yankee – matters within traditional state authority.  Vermont Yankee’s owners ignore this long history and want the Court to find all actions by Vermont are an attempt to regulate radioactive safety – something within exclusive federal authority. 

Conservation Law Foundation provided a “friend of the court” brief explaining the history, legal background and context of the State’s actions focusing on the owner’s untrustworthiness, poor economics of continued operation, and Vermont’s interests in advancing renewable power.   

Beginning Monday, experts on power supply and regulation will explain their views.  The trial will last three days.  A decision is expected later this fall.

Water sampling confirms that pollution from the Vermont Yankee  plant is fouling the Connecticut River.  For the first time, water samples of the Connecticut River reveal that tritium, a radioactive substance from the Vermont Yankee nuclear facility, is in the river.   Previous sampling ignored Conservation Law Foundation recommendations and failed to investigate areas along the shoreline where the tritium from the plant would be expected to be found.

This finding confirms that the Vermont Yankee facility is too old to keep operating.  Beyond any legal violations, this shows the abject failure of Entergy to responsibly manage Vermont Yankee.  Entergy is first failing to avoid pollution problems and then failing to clean up the messes it makes.

The continued lackluster oversight by regulators must stop.  The Nuclear Regulatory Commission should not allow Vermont Yankee to pollute with impunity.  Last week another radioactive fish with stontium-90 was found in the river.  This week tritium is confirmed in the Connecticut River.

Vermont Yankee should stop polluting our waters and Entergy should stop saying the plant is responsibly managed.

Another radioactive fish was found near the Vermont Yankee nuclear plant in southern Vermont.

This is the at least the third time a fish contaminated with Strontium-90 was found in the Connecticut River.

Vermont Yankee officials defy common sense.  They continue to claim there is no connection between the contaminated fish and the nuclear reactor on the banks of the river, choosing to blame nuclear bomb testing that took place decades ago and the 1986 Chernobyl accident.

An news articles point out, Vermont Yankee reported Strontium-90 releases to the NRC in annual reports from 2002, 2003, 2004 and 2005. So, what is more likely? That these releases caused radioactive isotopes to show up in fish a few miles downstream, or that events taking place over 25 years ago are to blame? During Public Service Board hearings last year, CLF’s expert showed that radioactive isotopes likely migrated through the site along with the release of tritium.  Hydrogeologist Stratton French testified:

“A more likely explanation for their occurence at these distant locations is that these radioisotopes migrated beyond the release point along groundwater flow pathways.  This conclusion is supported by Entergy VY’s own sampling data.”

This continues to show that Entergy is an untrustworthy partner to supply Vermont with energy.

The nuclear industry – and Entergy in particular – sure seems to have problems keeping promises.  Back in the 70s, nuclear power was “too cheap to meter.”  With Vermont Yankee, Entergy officials swore under oath there were no underground pipes.  Then those pipes were found to be leaking.  Last month, Entery told a federal court judge it needed an immediate court order to stay open to make the $65 million investment in new fuel.  The Court didn’t buy Entergy’s bullying and last week declined to order a preliminary injunction.  Today, Entergy announced it will purchase the fuel anyway.

Entergy’s fuel purchase decision is not surprising.  The court’s order noted that refueling will cost between $60 and  $65 million, and Vermont Yankee will generate $90 million in revenues by operating until March 2012.  Vermont Yankee’s revenues will cover its fuel costs.

Still, this is a dubious and risky business decision for Entergy.  Their Nuclear Regulatory Commission license is on appeal.  CLF is representing the New England Coalition in this appeal.  Also, Vermont Yankee does not have the needed permission to operate from Vermont past 2012.  This is an old reactor with a long and troubled history.  Retiring the facility as planned on March 2012 is the responsible thing to do.

Entergy’s credibility is buried along with its leaky pipes.  Any economic risk is Entergy’s own making.  Vermont continues to have a strong legal case.  States have the right to decide their energy future and land use and shouldn’t be forced to accept polluting, unreliable and untrustworthy nuclear plants and operators.  Let’s leave a clean energy legacy to our children and grandchildren.

Vermont moves a step closer to shuttering the aging Vermont Yankee nuclear power facility as planned in 2012.

In a strong rebuke to Entergy, the facility’s owner, the United States District Court denied a request to keep the plant open while Entergy’s legal challenge proceeds.  Entergy sued Vermont in April.  Entergy seeks to prevent Vermont law – which requires state approval - from taking effect.

The Court denied Entergy’s request for a preliminary injunction, stating:  ”This Court declines to order short-term drastic and extraordinary injunctive relief that will not offer certainty either in the short or long term, and will have no operative effect on state actions before trial.”

The Court rejected each of Entergy’s claims of harm.  The Court noted that a decision about refueling is “a business decision made very difficult by the uncertainties of litigation.”  The Court stated:  “In the unique circumstances presented here, the decision to refuel is either not harmful if Entergy prevails on the merits, or is not a cognizable injury if Vermont’s statutes are upheld.”    Refueling would cost between $60 and $65 million.  Revenues of $90 million would be earned from operating the plant until its planned closure in March 2012.

A full trial will take place this fall.  The Court’s decision on the injunction is a solid victory for Vermont at this stage.

As the battle over Vermont Yankee’s future is waged, Conservation Law Foundation and VPIRG seek to join as a friend of the court, or amicus for this first stage.  CLF will use the expertise gained in opposing Yankee’s continued operation before the PSB to bolster the argument that Yankee’s a long track record of failures preclude the Court from allowing continued operation.  Entergy would love to characterize their re-licensing as a guarantee to operate past 2012. However, CLF points out that their federal court challenge to the license over Entergy’s failure to obtain a necessary Clean Water Act certification makes the license itself uncertain.

CLF urges the Court not to allow Entergy to usurp Vermont law and walk away from their legal obligations.  The false testimony, leaks and bad economics of continued operation are ample justification for Vermont to refuse to grant a new certificate to operate for another twenty years.  In 2009 Entergy officials gave false testimony about the existence of underground pipes that were later found to be leaking radioactive tritium.  As CLF’s brief states:  “If land surveyors, architects, plumbers and physicians assistants can lose or be denied a license for making a material misrepresentation, less cannot be expected or required of nuclear facility operators.  The false testimony that Entergy officials provided under oath calls into question the ability of the plant operator to meet its legal obligations.”

The state of Vermont swung back in its reply brief last week with a laundry list of reasons the court should dismiss Entergy’s request to continue operating during the trial, or a “preliminary injunction”.  Because Entergy agreed to seek Public Service Board (PSB) approval, and not challenge PSB authority in court, the state argues Entergy is bound by their agreement. Also, the state suggests it is inappropriate for Entergy to object to PSB oversight at such a late hour, long after they received the benefit of doing business in Vermont under this agreement since 2002.

The state railed against Entergy’s argument that federal law supersedes state regulation over the aging plant. Vermont argues that, with the exception of radiation safety, states have authority over nuclear in many areas such as, “economics, land use, policy questions regarding a state’s energy future, and whether a corporation running a nuclear power plant has established itself as a trustworthy business partner.” Thus, the state argues that regulation over nuclear was never meant to preempt state law altogether.

Both Entergy and the state of Vermont will have a chance to argue on the preliminary injunction motion before United States District Court Judge J. Garvan Murtha on June 22-24.

CLF and Vermont Public Interest Research Group (VPIRG) today jointly filed a motion in the U.S. District Court to intervene on the side of Vermont in the lawsuit brought last month against the state by Entergy, owner of the Vermont Yankee nuclear power plant. The two groups maintain that Entergy should follow Vermont law and shut down Vermont Yankee as planned in March 2012.

“This is an important case that will decide the direction of our energy future,” said Chris Kilian, VP and director of CLF Vermont. “CLF and VPIRG will support the state of Vermont in its efforts to uphold Vermont law and ensure that the people’s voice and vision for their energy future will prevail over the interests of out-of-state polluters.” More >