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Federal judge will not order nuclear plant to stay open

State moves to close it when license expires

- Associated Press - Monday, July 18, 2011

MONTPELIER, Vt. — A federal judge on Monday said he would not order Vermont's only nuclear plant to remain open while a lawsuit to determine its long-term future plays out.

The state is moving to close the Vermont Yankee plant, with both the governor and the state Senate on record as wanting it to close when its initial 40-year license expires next March.

The plant's owner, New Orleans-based Entergy Corp., got a 20-year license extension for Vermont Yankee from the federal Nuclear Regulatory Commission and filed a lawsuit arguing that the federal action pre-empts the state's effort to close the plant.

Last month, Entergy went to court asking for a preliminary order allowing it to stay open while the underlying lawsuit works its way through the courts - possibly all the way to the U.S. Supreme Court. In Monday's order, Judge J. Garvan Murtha said there was no need for such an order because the main trial in the case is scheduled in mid-September, only eight weeks away.

"The motion is denied, because Entergy has failed to show that any irreparable harm it may incur between now and a decision on the merits" of its lawsuit, Judge Murtha wrote.

During two days of hearings in late June, Entergy lawyers and witnesses told Judge Murtha that they needed a decision on the preliminary injunction by July 23 so the company could order the specially fabricated nuclear fuel it needs to load into the reactor core during a refueling outage set for October.

Vermont Yankee, a 605-megawatt reactor in Vernon in the state's southeast corner, faces the expiration of its initial 40-year federal license on March 21.

A year to the day before that date, the NRC granted the company's request for a 20-year license extension. Vermont state law, however, requires that any electrical generator in the state get a state certificate of public good. Vermont Yankee's existing state certificate also expires in March.

Normally, the state's three-member utility commission, called the Public Service Board, decides whether to issue the certificate. But in 2006, the state Legislature passed a law - the state maintains it had Entergy's blessing - making Vermont the only state in the country in which both the state House and Senate have to vote their approval before the Public Service Board could issue a new certificate to a nuclear plant.

The state Senate voted 26-4 last year against Vermont Yankee getting a new certificate of public good. The House has not voted on the question, but since the 2006 law requires a yes vote from both houses before the board can issue a new certificate, inaction has the same effect as a no vote.

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