Vermont Yankee nuclear plant snared in legal, regulatory morass


Despite such protests as last weekend’s demonstration against thermal pollution of the Connecticut River, the Vermont Yankee nuclear power plant has recently come to stand for the proposition that, when a nuclear plant reaches the end of its 40 year design life, it can still get a federal permit to keep on running for another 20 years.

This proposition is currently being litigated in the federal courts, argued in the Vermont legislature, and challenged by protesters on land and water, most recently on September 15 when a flotilla of canoes, kayaks, and other small boats with more than 100 opponents of nuclear power took to the water on a sunny fall day to object to Vermont Yankee’s hot water discharge that overheats the river that runs between Vermont and New Hampshire.

The event received scant media coverage beyond the local newspaper, which noted that a recent report found that the river temperature “exceeded Vermont Yankee’s permit limit 58 percent of the time between May and October of 2006 through 2010.”Â Â Water temperature is a chronic concern for water-cooled nuclear plants like Yankee. Â Last summer, the Millstone nuclear power plant in Connecticut had to shut down when the Long Island Sound got too warm to cool the plant.Protesters did not approach the discharge pipe or otherwise challenge the perimeter of the plant. Â Â There were no arrests and Vermont Yankee did not publicly respond to the protest.

Vermont Yankee has been on a legal and regulatory winning streak this year and the final disposition of the 40-year-old plant is expected to have national impact on the nuclear industry in the U.S., according to observers at the Vermont Law School. Most recently, the Wednesday preceding the flotilla, the Nuclear Regulatory Commission (NRC) ruled that the frequently troubled plant didn’t have enough problems to require additional oversight, as requested by the State of Vermont in mid-August. Â Among the problems cited by the state was an accidental drop in the water level of the spent fuel pool that was caught and reversed before a more serious accident could develop.

On September 11, Entergy Corporation of Louisiana, the owner of Vermont Yankee, was sued for more than $1.5 billion, equivalent to about two years’ profit, for allegedly lax security at its Indian Point nuclear plant about 35 miles from New York City. Â The plaintiff, a current security guard at the plant, alleged numerous shortcomings at the plant, including improper nuclear waste storage. Â Entergy denied the charges and pointed out that the NRC has inspected the plant and judged it secure. Â The NRC declined to comment.

Also on September 11, Entergy Corporation filed a federal suit against the state, seeking to prevent the state from collecting taxes under a law passed by the Vermont Legislature in early 2012. Â Acting through two subsidiaries, Entergy Nuclear Vermont Yankee and Entergy Nuclear Operations, the Louisiana corporation filed in U.S. District Court for the District of Vermont to block the state from collecting $9.5 million a year in taxes that are assessed on all power generating companies in the state.

Under prior statutes and agreements between Entergy and the state, Entergy paid about $6 million a year to the state. Â This revenue ceased with the expiration of Vermont Yankee’s 40 year operating permit and was not renewed with the 20 year extension. Â The state legislature was trying to make up for this loss through the new law, under which the first payment would have been due on October 25, 2012.

The mechanism of the new law is a so-called “generation tax.”Â Â Under earlier legislation with a generation tax, Entergy was paying about $5 million a year. Â Entergy has proposed paying this amount while the litigation is pending. The proposed generation tax for Vermont Yankee’s nuclear power is $0.0025 per kilowatt hour (kWh), which is the same rate Connecticut charges its nuclear plants. Â Â The proposed rate for Entergy is lower than the $0.0030 rate Vermont charges on electricity generated by wind farms. One of Entergy’s arguments in this suit is that it is being singled out and treated unfairly. Â State Rep. Dave Sharpe of Bristol has already suggested the legislature remedy this by taxing nuclear power generation at the same, higher rate applied to wind power generation.

Entergy and the state are already entangled in another federal lawsuitEntergy Nuclear Vermont Yankee, LLC et. al. v. Shumlin et. al., in which the first round went to Entergy last January, when Judge J. Garvan Murtha ruled, in effect, that Vermont could not supersede the NRC when it came to regulating the safety of Vermont Yankee.  In June, after considerable public debate, the state filed its appeal of Murtha’s decision (having filed notice of appeal in February), joined by eight other states. Â In September, Entergy filed its answer and that appeal is still pending. Â Â Entergy has also cross-appealed in this case.

Also in June, in a separate case, the federal D.C. Court of Appeals rejected Vermont’s arguments and ruled that Vermont Yankee could stay in operation under its 20 year extension license until the litigation was completed.

Meanwhile, the NRC voted 5-0 in early August to freeze all nuclear licensing – whether for a new plant of a license renewal, like the one granted in 2011 to Vermont Yankee. Â The NRC freeze was based on another D.C. Court of Appeals decision voiding the NRC’s rule on radioactive waste. Â The freeze will remain in effect until that rule is resolved. Â Conditions have not improved since 2011, and had the court ruling come earlier, Vermont Yankee would now be shut down.

In Vermont, the state’s lone nuclear power plant continues to be controversial. Â In the race for governor, incumbent Democrat Peter Shumlin has long favored shutting Vermont Yankee down, while Republican challenger, State Sen. Randy Brock has voted to close Vermont Yankee and has supported building a new nuclear power plant on the same site.


  1. States Rights and the 10th Amendment are all too often associated with rabid conservatism. Perhaps now, as our central government drifts deeper into corporatism (aka by definition: fascism), Americans from across the political spectrum will come to value and protect the 10th as one of several important Constitutional safeguards against tyranny.

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