State Supreme Court hears appeal on Vermont Yankee uprate

By Mary Elizabeth Fratini | Special to the Vermont Guardian

Posted February 23, 2007

SOUTH ROYALTON — The Vermont Supreme Court Thursday displayed near equal concurrence and skepticism during a hearing over the proposed uprate at the Vermont Yankee nuclear power plant in Vernon.

The New England Coalition (NEC), a citizens group, represented by Ron Shems of Shems, Dunkiel, Kassell and Saunders, in Burlington, had appealed an order by the Public Service Board (PSB) allowing the uprate to go forward. NEC claims the PSB violated state law (Section 248) when it granted a certificate of public good (CPG) for the plant to operate at 120 percent of its designed capacity because the board adequately did not show that the uprate would provide a net economic benefit to the state and residents of Vermont.

Shems’ focused on the disconnect between the PSB’s granting a partial CPG in March of 2004, which cited a lack of evidence on reliability and an economic benefit to Vermont, and the subsequent finding in favor of the uprate following a safety inspection by the Nuclear Regulatory Commission (NRC) in March of 2006.

“The board found the record insufficient in 2004 and after that, the case was never reopened, so how could the record have changed?” he argued. “The language is inescapable, they couldn’t have been more specific that the record is insufficient, but when their feet are held to the fire they try to explain away the inconsistency. They made the finding without holding a technical hearing to support it.”

The justices, however, repeatedly asked Shems to demonstrate where his client had asked the board for such hearings, asking if it was accurate to characterize his appeal as addressing something never presented to the PSB.

“My client raised substantial facts and every reasonable personal person would interpret that as a request for a hearing,” Shems responded. He added that the board routinely schedules public hearings on cases prior to holding the technical hearings legally required to make findings, but quoted the PSB from the written record as saying, “we must base our decision on evidence presented by parties in formal hearings.”

Entergy’s lawyer, Victoria Brown, shared her allotted time with Sarah Hofmann from the Vermont Public Service Department (PSD), arguing that the court should affirm the 2006 compliance order for four reasons: NEC never appealed the 2004 ruling from the PSB; the board acted within the Administrative Procedures Act (APA) and legal precedence; this appeal was “little more than a collateral attack” on the 2004 order; and, any error potential made by the board was ultimately harmless.

NEC filed significant comments over a seventh-month period following the partial CPG, Brown said. “They participated with vigor, but didn’t request a hearing, or argue that APA required it and said that it was optional on several occasions.” Brown dismissed questions from several justices regarding the finality of the 2004 ruling, saying that the board didn’t need findings on reliability because they found the uprate would provide specific economic benefits to the state.

“The board has acknowledged contradictory language, but the ordering paragraphs control and found that the uprate would benefit the state of Vermont,” Brown said. “The only condition was asking the NRC to conduct an engineering assessment.”

The nature and applicability of the NRC assessment was itself a point of contention because of a jurisdictional split in regulating nuclear power safety versus reliability, and because the NRC used a different inspection program than originally requested by the board.

“Reliability is outside of their [NRC’s] jurisdiction,” Shems said. “The job of the PSB is to translate the safety report into reliability and economic benefits. What they needed to do was hear from witnesses, allow cross-examination and discovery, and to have the required hearings. They didn’t do that here and that is the error we appeal.”

One justice suggested there was a a difference between this appeal and other Supreme Court cases involving VELCO’s Northwest Reliability Project.

“What we have talked about in VELCO is where there are loose ends to be tied up,” said Justice Brian Burgess. “We don’t know exactly where the line will go, but it will be for the public good and we’ll deal with that later. Here [in the 2004 ruling], it sounds like the board says we think it will be in the public good, but not until we have this piece.”

If the court decides in favor of NEC, Shems said that would vacate the PSB order allowing the uprate and remand the case back to the PSB for technical hearings regarding economic benefit and reliability. “We raised very specific factual issues with the NRC report, but that is for the board to decide pursuant to technical hearings,” he said.