The five members of the federal Nuclear Regulatory Commission refused to say Thursday whether they had voted in secret a day earlier on whether to ask the U.S. Justice Department to intervene in the lawsuit brought by Entergy Corp. against the state of Vermont over the future of the Vermont Yankee nuclear plant.
The comments came during a hearing of the U.S. Senate Committee on Environment and Public Works at which Sen. Bernie Sanders, a member of the committee, grilled commission members on their involvement in the Vermont Yankee litigation.
"My understanding is that there was a vote yesterday at the NRC on the issue in fact of whether or not the NRC should be involved in this case," Sanders said while questioning NRC Chairman Gregory Jaczko. "Can you tell me what the vote was, Mr. Commissioner?"
Jaczko and the other commissioners declined to answer, saying it was a matter of litigation strategy and that they had been urged not to speak about the matter by the Justice Department. But the chairman reiterated comments he first made in March as the NRC issued Vermont Yankee a 20-year license extension that he doubted there were grounds for the federal government to pre-empt state action.
"I don't want to specifically comment on a matter that is in front of the commission because that is a privileged matter, but I see nothing that would tell me that there's a pre-emption issue here," Jaczko said in response to questions from Sanders.
Sanders aides had said Wednesday evening that they had received information that the NRC had voted in a closed-door session to ask the Justice Department to get involved in Entergy's suit, arguing that federal laws and regulations governing nuclear power pre-empt the state laws that are threatening to shut Vermont Yankee down next March, when its initial 40-year license expires.
A senior NRC official, who spoke to The Associated Press on condition of anonymity because he was not authorized to speak about the matter, said the commission voted 3-2 on whether to ask the Justice Department to intervene, but he would not say which way the vote went.
Despite the 20-year license extension Entergy won for Vermont Yankee from the NRC in March, Vermont so far has declined to follow suit and issue a state certificate of public good to allow continued operation of the Vernon reactor. Vermont is the only state in the country with a law saying both houses of its legislature must approve continued operation before state regulators can issue the certificate. The Vermont Senate voted 26-4 last year not to do that; the House hasn't acted.
Sanders repeatedly returned to the Vermont Yankee question during a hearing that was billed as being an update for the Senate committee on the NRC's response to the nuclear disaster in Japan that began with earthquakes and a tsunami there in March.
The state of Vermont has argued that authority over nuclear power plants is split between the state and federal governments, with issues of nuclear safety and regulation of radiation left to the federal government and other topics, such as the economics of nuclear plant operations, plant reliability and other environmental impacts, left to the states. The state's case hinges on a 1983 U.S. Supreme Court decision in a suit by Pacific Gas & Electric against a California law that said no new reactors could be built in that state until the nation had a permanent radioactive waste disposal site, which it still doesn't.
The Supreme Court ruled for California, laying out the divided state and federal authority. Responding to questions by Sanders, three out of the five NRC members said they had no knowledge of that 1983 case.
"I also have to admit I'm not familiar with that particular ruling although I will read it when I get back to the office," Commissioner William Magwood IV said when Sanders asked him about the California case.
"It concerns me very much that you may not be knowledgeable about this decision because, as I understand it, this commission just voted yesterday on an issue very relevant to what the Supreme Court had to say," Sanders said.