Vt. AG takes issue with Entergy filing

Jessica M. Karmasek Jul. 11, 2011, 11:11am

MONTPELIER, Vt. (Legal Newsline) - Vermont Attorney General Bill Sorrell, in a court filing last week, moved to strike certain portions of Entergy Corp.'s supplemental proposed findings of fact in the fight over the relicensing of its nuclear power plant.

Sorrell, who filed the six-page motion on behalf of the State on Wednesday, said Entergy's filing raises a new claim of alleged harm and "inappropriately relies" on new evidence not submitted to the U.S. District Court of Vermont at a June 24 hearing on a preliminary injunction or accompanied by a motion for leave to re-open the hearing.

The attorney general said the energy company also disregarded the court's post-hearing briefing order by submitting additional legal argument.

"The court's post-hearing order was specific and limited: the court allowed plaintiffs (who filed proposed conclusions of law in advance of the hearing) to supplement only their proposed finding of fact, while the State was permitted to file proposed conclusions and supplemental findings," Sorrell wrote in the motion.

"The court did not authorize either party to raise new claims or introduce new evidence. Plaintiffs did not ask the court to revise its order, nor did plaintiffs seek permission to introduce new claims or to re-open the hearing."

Entergy filed a lawsuit against Vermont for its role in deciding whether the company's Vermont Yankee nuclear power plant can operate after its license expires next year.

In Vermont, both houses of the state Legislature and the governor must approve nuclear licenses. The state Senate voted 26-4 not to extend the license, prompting Entergy to seek a preliminary injunction against the vote.

Specifically, Vermont takes issue with these portions of Entergy's filing -- all of which, the State argues, raise a new claim or rely upon new evidence:

- Paragraphs 3 and 4, which address actions taken by ISO New England Inc., or ISO-NE, for the 2014-2015 forward capacity auction, and cite press releases and newspaper articles not in the record;

- Paragraphs 8 and 9, which allege Standard & Poor's revision of the outlook for Entergy's rating as irreparable harm, and cite a report that is not part of the evidentiary record, together with Exhibit A, which is a copy of that report; and

- Paragraph 18, which cites newspaper stories about the Nuclear Regulatory Commission, the Department of Justice and Bernie Sanders, one of Vermont's U.S. senators.

Vermont argues that Entergy's submission "substantially prejudices" the State.

Sorrell also points out that the company's claim regarding the Standard & Poor's credit rating is "wholly new."

"To properly respond to this claim, the State would need to conduct focused discovery about, for instance, Entergy's communications with Standard & Poor's, the basis for the rating and any alleged consequences," he wrote in the motion.

"The State is also prejudiced because it has had no opportunity to cross-examine plaintiffs' witnesses on any of this new evidence, or to present its own relevant testimony or evidence to counter plaintiffs' new assertions."

Sorrell said if the company seeks to re-open the record for the preliminary injunction hearing because of new developments, they must request and obtain permission to do so.

He continues, "If, as plaintiffs are apparently suggesting, 'subsequent developments' alone suffice to allow submission of additional evidence, the record on this motion would never close and both parties could continually 'update' the court with new facts. But that is not how the process works.

"Unless the court rules otherwise based on a proper motion, the record is limited to the evidence submitted at the hearing. The fact that plaintiffs may be dissatisfied with that record does not give them license to supplement it by citing newspaper articles and filing new material with the court."

Vermont, in its 68-page memorandum filed in May in the U.S. District Court of Vermont, says Entergy Nuclear Vermont Yankee LLC bought Vermont Yankee in 2002 "knowing" the plant was scheduled to close in 2012.

The State says the company has "consistently recognized and agreed to" State regulatory authority -- and "specifically acknowledged" that it needed State approval to keep operating after March 21, 2012.

Therefore, it argues, Entergy cannot make the "clear showing" necessary to justify the "extraordinary and drastic remedy" of a preliminary injunction.

The company recently won a 20-year extension on its license from the federal Nuclear Regulatory Commission. However, the Legislature has not yet allowed the state Public Service Board to consider issuing a Certificate of Public Good. State law requires that all power plants must have such a certificate if they wish to generate electricity in Vermont.

Sorrell told the Brattleboro Reformer on Friday that he doesn't know when U.S. District Judge J. Garvan Murtha will rule on the preliminary injunction, but he thinks it would be closer to Entergy's July 23 refueling deadline.

The overall lawsuit is expected to be heard in court in the fall.

Entergy, according to its website, is an integrated energy company engaged primarily in electric power production and retail distribution operations. It owns and operates power plants with approximately 30,000 megawatts of electric generating capacity, and is the second-largest nuclear generator in the United States.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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