Comments on Entergy’s Motion Pursuant to Vermont Rule of Civil Procedure 60(b)…

 

The essence of Entergy’s argument appears in this sentence from page 7: “Entergy VY had no reason to expect in 2002 or 2006 that the State would engage in efforts to delay or prevent approval of operations after March 21, 2012.”  But the sentence is actually more accurate in the negative: “Entergy VY had no reason to expect in 2002 or 2006 that the State would NOT engage in efforts to delay or prevent approval of operations after March 21, 2012.” [1]

 

That’s because the Entergy’s entire historical narrative is, as usual, misleading, since it omits key details concerning the legislature’s intervention.   Most importantly, it fails to mention that section 6501 of Vermont Title 10 predates Entergy’s purchase of the plant and thus the Board’s 2002 decision by roughly 25 years.

 

At the time Entergy bought the plant, this provision ALREADY required affirmative legislative approval before a spent fuel facility can be built in Vermont. Entergy knew when it bought the plant that it intended to uprate it and to apply for a license extension; it also knew that the spent fuel pool was already holding far more fuel than its original design called for, that it had been “re-racked,” and that it was nearing its ultimate capacity. It did not, therefore, take a nuclear plant operator, let alone a rocket scientist, to figure out that if the company’s plans were carried out, Vermont law was going to require it to seek legislative approval.
Granted, section 6505 held out a remote possibility that the plant, rather than the old owner, might be exempt from the provisions of section 6501.  But the Attorney General’s decision that the section 6505 exemption applied only to the old VYNPC and not to the plant should not have comes as a surprise, since the language of the statute says “storage by Vermont Yankee Nuclear Power Corporation,” and NOT “Vermont Yankee Nuclear Power Plant.” Indeed, there were only 2 plausible readings, and the odds therefore were 50/50 that the decision would come out as it did.  Something just as likely to happen as not is hardly “unpredictable.”

 

Once the Attorney General reached his decision, — which to my knowledge, Entergy has never contested — Entergy itself submitted draft legislation to the General Assembly ASKING for the legislation it now declares “unpredicted.”  Act 74 effectively split the existing legislative vote decision into two separate decisions, the first of which it then made affirmatively by passing the law.  The legislature gave its required approval for storage of fuel generated BEFORE 2012, and deferred its decision about fuel generated AFTER a license renewal.  In so doing, it raised the odds from 50% to 100% that Entergy WOULD need another affirmative vote, roughly 7 years before the issue would be raised in earnest.  As the Board noted in its March 19 order, it also effectively removed from the Board any right to allow spent fuel storage for fuel generated after March, 2012 WITHOUT prior legislative approval.

 

Thus, the only aspect of the Vermont regulatory structure concerning fuel storage which could NOT have been predicted in 2005 was that Entergy, which had proposed Act 74 in the first place, would successfully find a judge to overturn a key portion of it 7 years later, based on specious arguments about legislative history which completely ignored the pre-existing Vermont law mandate. THAT was unpredictable.

 

Entergy’s next argument concerns Act 160, passed in 2006.  First, it is worth noting that the requirement for a legislative vote in Act 160 was contemporaneously criticized by Entergy ONLY for being “redundant.”  Almost by definition, things which are “redundant” are also “predictable.” In this case, as just noted, the legislature had already required a vote on spent fuel storage before operations could continue after March, 2012, so the Act 160 vote was nothing new.

 

Again, what could NOT have been predicted in 2006 are 1) Entergy’s decision to ignore the agreements it signed in the 2002 MOU not to sue over federal preemption, and, in any case, to bring all  disagreements before the PSB (MOU sections 12 and 16 respectively), 2) that the company would wait 6 more years to bring the issue into court (rather than to the Board), or 3) that a federal judge would, despite clear and explicit precedent, misconstrue highly selected snippets of legislative history despite clear, precise and explicit legislative text to the contrary.  None of this was “predictable,” but the first two points were completely within Entergy’s control and the last, though truly unpredictable, works to Entergy’s advantage.

 

Finally, as pointed out in considerable detail in the Windham Regional Commission’s April 13 brief (“Motion for Reimbursement of Expenses”) and elsewhere, Entergy had multiple opportunities to hasten this process, but repeatedly CHOSE delay.  It is deeply ironic that Entergy now comes before the Board, essentially pleading that it could not have predicted the consequences of its own actions.

 

Entergy’s brief is built on a re-writing of history which bears no realistic relationship what actually transpired.  On the basis of this twisted historical revision, Entergy claims it could not have predicted what to everyone else – especially including the Board – was facially obvious.  For all our sakes, let’s hope this company is better at running nuclear plants than it is at making predictions.

 

Meanwhile, the Board should not add insult to injury by reversing its previous carefully-reasoned decisions based on misleading history and spurious logic.

 

John Greenberg

Marlboro, VT