The Vermont Yankee Nuclear Power plant sits on a peaceful bend of the Connecticut River, where jays call and herons dive lazily over sun-dappled water. There’s something ominously familiar, however, about the tower of Vermont Yankee’s reactor, which has the same design as those that melted down last spring at Fukushima in Japan. And just a day before that tragedy, the Nuclear Regulatory Commission (NRC) approved Vermont Yankee’s request to operate for another twenty years past the forty years for which it was designed.
The scene was anything but peaceful last fall up the road in Brattleboro, where that decision has been challenged in court by the Vermont government, which has fought for nearly two years to shut down the plant. The ruling, expected soon, could have a profound effect not only on Vermont but also on dozens of other states where aging nuclear plants will be applying for relicensing. And it could set a precedent that will determine who gets a say in whether plants continue to operate: the states in which they reside or the federal government, which has been notoriously chummy with the industry it regulates.
The fight over Vermont Yankee goes back to 2002, when Louisiana-based Entergy Corporation purchased it. In exchange for state approval of the sale, Entergy signed a memorandum of understanding (MOU), agreeing that in order to renew its license past March 21, 2012, it would require a certificate of public good from Vermont’s Public Service Board. And in 2006, when the plant increased its power output, it agreed that relicensing would require legislative approval as well.
Soon, however, a stunning parade of missteps raised deep suspicions about Entergy’s ability to safely operate the plant. First, in 2007, one of its cooling towers collapsed dramatically, spewing water into the river and causing a 50 percent loss of power; then, that same year, Entergy proposed a misguided plan to spin off Vermont Yankee and five other plants into a highly leveraged new company called Enexus, which was immediately decried by legislators. The nail in the coffin of public support was driven in January 2010, when Entergy announced it had discovered radioactive tritium leaking into the groundwater. Company officials first testified under oath that the plant didn’t have any underground pipes from which the waste could leak. Later, however, not only did the company admit that the pipes exist; an NRC whistleblower revealed that tritium had leaked from them in 2005. Subsequent tests showed that the level of tritium was below that considered harmful, but Entergy’s credibility was shattered. An incensed State Senate pulled the plug, denying approval for license renewal in February 2010. Entergy sued, saying the state didn’t have the authority to shut the plant down since it was refusing renewal on the grounds that the plant was unsafe. According to federal law, only the Nuclear Regulatory Commission has the power to close plants because of safety concerns.
The two sides faced off in September at the federal courthouse in Brattleboro, a small room above the post office. Brattleboro may be small, but it ranks with Berkeley and Ann Arbor as one of the most activist communities in America, and dozens of protesters were marching outside by 7:00 in the morning, lining up to squeeze into a courtroom already crammed with the dark suits of Entergy’s executives and lawyers.
The company’s lawyers called few witnesses, relying instead on an unusual three-hour closing argument in which Entergy attorney Kathleen Sullivan played clip after devastating clip of legislators twisting themselves in knots not to use the word “safety” in order to avoid being pre-empted by Washington. “If it mentions safety issues, technically the state is pre-empted from handling those,” says one legislator in a typical exchange over drafting legislation about the plant. “We might be able to come up with another term for safety,” says another. “OK, let’s find another word,” says the first. Sullivan pounced on such exchanges. “Just because you move the headstones doesn’t mean the bodies aren’t still there,” she said. “It doesn’t change the purpose to change…the name…or to clean up the language.”