Karl Herchenroeder
RW Monitor
2/12/2016
A federal appeals court said this week’s it’s too soon to hear the state of Vermont’s challenge against federal regulators concerning use of the Vermont Yankee Nuclear Power Plant’s decommissioning trust fund.
In a decision filed Monday, the D.C. Circuit Court of Appeals dismissed Vermont’s petition, essentially saying the state first must settle the matter with the Nuclear Regulatory Commission. In August, Vermont sued the NRC for allowing plant owner Entergy to use $225 million from its decommissioning trust fund for managing spent nuclear fuel, which the state contends is against federal law. Vermont and the plant’s former owner have interest in the trust fund because 55 percent of the money left over from decommissioning will be returned to the facility’s original Vermont ratepayers.
Following the August lawsuit Vermont filed a broader challenge with the NRC itself, asking commissioners to reverse the exemption. The court wrote Monday that Vermont’s petition is “incurably premature” and must be dismissed for lack of jurisdiction. Instead, jurisdiction falls with the commission. If the NRC upholds the exemption, Vermont has the right to refile its petition, the court said.
Vermont Assistant Attorney General Kyle Landis-Marinello called Monday’s decision “procedural,” saying the dismissal was without prejudice and was not based on the merits of the case.
“This was just a dismissal for procedural reasons,” Landis-Marinello said. “The court went out of its way to say we’ve retained all our rights to bring the challenge in at a later time.”
NRC spokesman Neil Sheehan said the commission general counsel’s stance has been that this is something of an unprecedented situation. Counsel has stated that the NRC has no real process for addressing Vermont’s challenge. Whether to set a hearing on the matter, Sheehan said, will be up to the commission.
“There’s no date scheduled yet,” Sheehan said. “We don’t know that there will be any hearing granted. … The commission has a lot on its plate, and they’ll issue a decision when they’re ready.”
Plaintiffs in the case included the Vermont Attorney General’s Office, state Public Service Department, and former plant owner Vermont Yankee Nuclear Power Corp. With support from Connecticut, New Hampshire, and Massachusetts, Vermont has argued that NRC is allowing Entergy to use the trust fund for illegal purposes not related to decommissioning.
Vermont has raised two other issues concerning the lifting of the emergency planning zone surrounding the nuclear site. In December the NRC granted Entergy a standard safety exemption, allowing the plant’s 10-mile emergency planning zone to shrink to within the site’s boundaries starting on April 15. At that time Entergy is no longer required to pay millions to surrounding jurisdictions for emergency planning and groundwater monitoring. The company is negotiating with Vermont on potential funding moving forward.
In March Vermont filed a challenge with the NRC, arguing that commissioners passed the emergency planning zone exemption without allowing input from the state. Vermont also has argued that it was denied a hearing over a matter with the NRC’s Atomic Safety and Licensing Board concerning the nuclear plant. Both challenges are pending.
Entergy spokesman Marty Cohn described the matter as between Vermont and the NRC.
“Entergy Vermont Yankee continues to follow the prescribed process, and we will continue to meet all regulations and requirements,” Cohn said. “The state can do whatever it wants, but we’re following all our regulations.”
