The Environmental Protection Division assists and advises the Department of Public Service (DPS), Department of Health, and other state agencies on nuclear power legal issues. The Division has represented the State in federal court litigation involving the Vermont Yankee Nuclear Power Facility (see below). The Division, in conjunction with the DPS, also represents the State in proceedings before the Federal Nuclear Regulatory Commission which oversees the safety of all civilian nuclear power facilities in the United States.
Vermont Yankee Decommissioning
The Vermont Yankee nuclear power plant ceased operations on December 29, 2014. Two weeks later, all of the nuclear fuel in the reactor was removed and placed into storage onsite. The closure of Vermont Yankee has raised a number of issues that the Division and DPS are monitoring closely. The Division has helped DPS bring several challenges to proposed amendments to the Vermont Yankee operating license. Through these challenges, the State has sought to have the Nuclear Regulatory Commission require Vermont Yankee to:
- Maintain a 10-mile Emergency Planning Zone until all spent fuel is removed from the spent fuel pool and placed into dry-cask storage;
- Maintain an emergency notification system that is equivalent to what it had during operations; and
- Continue to provide 30-day notice before withdrawing money from its nuclear decommissioning trust fund.
The Division and DPS, along with the Department of Health and the Agency of Natural Resources, have also been actively participating in Nuclear Regulatory Commission proceedings involving the above and many other aspects of Vermont Yankee’s post-closure activities. The Division has been particularly active in closely monitoring Entergy’s planned use of the nuclear decommissioning trust fund to ensure that this fund is used appropriately so that it can fully fund all of the legally required decommissioning at the site.
Vermont Yankee Litigation
On April 18, 2011, Entergy Nuclear Vermont Yankee and Entergy Nuclear Operations (collectively “ENVY”) sued in Federal court, naming as defendants Vermont Gov. Peter Shumlin, Attorney General William H. Sorrell, and the three members of the Vermont Public Service Board (the quasi-judicial body that lawfully regulates all public utilities in Vermont). Trial on ENVY’s complaint took place September 12 through 14 at U.S. District Court in Brattleboro, VT. A decision was issued on January 19, 2012, finding certain State statutes preempted by federal law, and the case was appealed to the Second Circuit Court of Appeals in New York, NY. On August 14, 2013, the Second Circuit issued its appellate decision, affirming in part, and reversing in part, the lower court’s ruling.
On August 27, 2013, Entergy announced plans to close Vermont Yankee by the end of 2014. On December 23, 2013, the State and ENVY entered into a Settlement Agreement and Memorandum of Understanding regarding the closure of the Vermont Yankee facility. As part of the Settlement Agreement, the State and ENVY agreed to resolve all outstanding federal court litigation, which has occurred.
Vermont Yankee Relicensing
A state proceeding was held before the Vermont Public Service Board to determine whether ENVY may continue to operate Vermont Yankee until the end of 2014. The December 23, 2013 Memorandum of Understanding formed the basis for the proposed resolution of that proceeding. http://psb.vermont.gov/docketsand%20projects/electric/7862.
On March 28, 2014, the Public Service Board approved the memorandum of understanding and issued a CPG for operation of the plant to the end of 2014. Final Order
The Department of Public Service represented the State’s public interest in that case, and has additional information on that proceeding here.
The Attorney General’s Office, through the Environmental Protection Division, is currently involved in numerous proceedings before the federal Nuclear Regulatory Commission on nuclear waste. Along with the Department of Public Service, the Attorney General’s Office has led a multi-state coalition with the Attorneys General of New York, Massachusetts, and Connecticut challenging the U.S. Nuclear Regulatory Commission’s failure to address the growing nuclear waste problem. These states—all of which host one or more nuclear power plants where spent nuclear fuel is stored—are working to ensure that the federal government evaluates all of the environmental impacts of long-term storage of nuclear fuel at reactor sites.
In June 2012, Vermont and a similar coalition of states won a nationally significant ruling in federal court against the U.S. Nuclear Regulatory Commission. The U.S. Court of Appeals for the D.C. Circuit held that the Nuclear Regulatory Commission had issued rules without first undergoing the legally required evaluation of environmental risks. The issue was then remanded to the Nuclear Regulatory Commission to undergo the proper environmental analysis. Vermont took over the lead in trying to convince the Nuclear Regulatory Commission to do the required environmental analysis. In January 2013, Vermont led a multi-state coalition in filing scoping comments requesting that the environmental analysis be expanded. In May 2013, Vermont led this same multi-state coalition in petitioning the Commission to consider alternatives to the status quo, including: (1) requiring dry cask storage of spent fuel rather than continued use of spent fuel pools; and (2) not allowing further production of spent fuel until there is a safe and environmentally acceptable permanent waste repository to receive the additional spent fuel.
More recently, Vermont and New York led the multi-state coalition in filing extensive comments critiquing the Nuclear Regulatory Commission’s approach to this issue. When the Commission failed to change its approach, Vermont and New York led the same multi-state coalition in filing another action in the D.C. Circuit seeking to force the Commission to do the required environmental analysis surrounding the storage of spent nuclear fuel. The briefing in that lawsuit begins in June 2015. The Division will continue working to ensure the protection of Vermont and all other areas throughout the nation that are in close proximity to a nuclear power plant where radioactive spent fuel is stored.