MONTPELIER, Vt. (AP) — Entergy Corp., which owns the Vermont Yankee nuclear plant, said Monday night it would appeal a federal judge's order allowing the plant to stay open past its originally scheduled shutdown date, and asked the original judge to revisit his order and prevent the state from barring the future storage of spent nuclear fuel at the Vernon reactor.
The moves by Entergy came in a series of legal filings with the U.S. District Court in Brattleboro, where Judge J. Garvan Murtha last month issued an order widely viewed as strongly in the company's favor, and at the 2nd U.S. Circuit Court of Appeals in New York, where the company gave notice it would appeal every aspect of Murtha's order.
Entergy asked Murtha to issue an injunction against Vermont to bar it from trying to enforce state laws against the storage of high-level radioactive waste generated at the plant after March 21.
That was the date Vermont Yankee's original license said it would shut down after 40 years of operation. The plant last year won a 20-year license extension from the federal Nuclear Regulatory Commission. But the Vermont Legislature had passed a law saying it had to give its OK before the Vermont Public Service Board could issue the parallel state permit. And in 2010, the state Senate voted down a bill that would have authorized the board to do so.
Entergy sued in federal court in April 2011 and last month won an order from Murtha saying the state was improperly trying to shut down the plant out of concerns over its safety.
The Senate vote came in February of 2010 after it was revealed the previous month that radioactive tritium had been leaking from the plant into soil and groundwater surrounding it. Nuclear safety, the court said, is the sole purview of the NRC, and the state is pre-empted from taking any action related to it.
On Monday evening, Entergy provided notice of appeal to the federal appeals court in New York, without spelling out what its major issues would be in that part of its case. That move came a little more than a week after Attorney General William Sorrell's announcement that the state would appeal as well.
Vermont Law School Professor Patrick Parenteau, who has been following the case and blogging on it, said in a phone interview that he expected Entergy would object to one part of Murtha's ruling that had gone against the company. During a three-day trial in September, Vermont Yankee's lawyers argued that because Vermont Yankee would be selling its power out of state after March, the state should have little or no authority to regulate the plant. Murtha rejected that argument.
"The cross-appeal on Entergy's part is exactly what you would expect them to do to raise the stakes for Vermont," Parenteau said.
He said if the company succeeds in its argument that the Federal Power Act pre-empts the state from regulating Vermont Yankee when its power is sold outside Vermont, that "would get them out from under the (Public Service) Board altogether."