After Entergy bought Vermont Yankee in 2002, did Entergy keep the company-specific exemption that let Vermont Yankee Nuclear Power Corp. store spent fuel on site without legislative approval?

Plain-English summary

Senator Peter Welch asked the AG three questions about spent fuel storage at the Vermont Yankee nuclear plant. The plant's operator wanted to add dry cask storage on site so it could keep operating after the existing storage pool filled. The 1977 Public Act 77 (codified as 10 V.S.A. ch. 157) generally requires the General Assembly to find that a spent-fuel storage facility "promotes the general good" before it can be built in Vermont. But Section 6505 carved out an exemption for "any temporary storage by Vermont Yankee Nuclear Power Corporation of spent fuel elements or other radioactive waste at its present site."

In 2002 Entergy bought Vermont Yankee. Did Entergy inherit the exemption?

Assistant Attorney General Michael McShane concluded no, on two grounds.

First, the exemption was personal to the corporation, not the site. The plain language named "Vermont Yankee Nuclear Power Corporation," and other parts of Title 10 used "Vermont Yankee site" or "Vermont Yankee facility" when the legislature meant the location. The legislative history of the 1977 Act confirmed this. Vermont Yankee's representative John Beck testified that the company sought a savings clause to exempt continued operation of the existing plant. The committee chair's question, "your proposed exemption refers to the plant that is in operation in Vernon now, but it would not apply to any other plant your company would propose," suggested some focus on the plant, but did not negate the simultaneous focus on the corporation. The 1977 enacted savings clause read in both ways: specific to both the corporation and the site.

Second, the exemption was not transferable. Vermont law had no rule one way or the other on assignability of statutory rights. Other state cases had split, with Indiana on the assignability side and Kansas, Tennessee, Maine, and Connecticut on the strict-construction side. The strict-construction line treated tax credits and similar statutory benefits as creatures of legislative grace, not assignable absent explicit statutory or contractual authority. The AG read Vermont's silence as more likely to track strict construction. The court precedent that did exist, including Lemieux v. Tri-State Lotto Commission (where assignment was authorized because the statute used broad language), would not extend to a narrow statutory exemption from regulatory burdens.

So the exemption did not transfer with the assets. Dry cask storage at the Vernon site, both temporary and long term, fell within ch. 157 and required General Assembly approval. The opinion noted in a footnote that the federal Atomic Energy Act preempts state regulation of plant operation and safety per Pacific Gas & Electric v. State Energy Resources Commission, but state regulation of matters other than operation and safety remains within Vermont's power.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Vermont Yankee operated until December 2014, when Entergy permanently shut it down. Decommissioning has continued under federal NRC oversight, with state participation through the Vermont Public Utility Commission. Anyone evaluating current authority over fuel storage at the site should consult subsequent legislation (e.g., 2005 Vt. Acts No. 74), Public Service Board orders, and federal preemption developments.

Historical summary

For state legislators (at the time): The opinion told the General Assembly that the Vermont Yankee exemption did not survive the 2002 sale. Any dry cask storage at Vernon needed legislative approval, which is what eventually happened with later legislative action.

For statutory construction researchers: The opinion is a useful Vermont AG application of the assignability question. The structure of the analysis (plain language, then legislative history, then comparative case law from other jurisdictions) is replicable.

For utility regulatory researchers: The opinion illustrates how a personal statutory exemption can be a hidden but important asset of a regulated entity. Buyers of regulated facilities should not assume that statutory benefits transfer with the operating assets. Some do; some do not. Section 6505 did not.

Common questions

Did the AG rely on federal preemption to support the answer?
No. The AG noted federal preemption as a footnote about safety and operation, but the answer turned on Vermont statutory construction.

Could the General Assembly have authorized the assignment after the fact?
Yes. The opinion explicitly says "the Legislature may authorize assignment if it chooses to do so." A subsequent statute could have rolled the exemption forward to Entergy. None had been enacted at the time of the opinion.

Did the AG comment on whether dry cask storage was "temporary" or "long term"?
The AG declined to draw the line because both fell within ch. 157 once the exemption did not apply.

Citations and references

Statutes:
- 10 V.S.A. ch. 157 (radioactive material storage)
- 10 V.S.A. § 6505 (Vermont Yankee Nuclear Power Corp. temporary storage exemption)
- 10 V.S.A. § 7001(13); § 7011(5) ("Vermont Yankee site"); § 7002(21) ("Vermont Yankee facility")
- 24 V.S.A. § 2255 (junkyard licenses; non-assignable, used as comparator)
- 31 V.S.A. § 674(L)(1) (lottery prize assignment, broad language; cited in Lemieux)
- Public Act No. 77 (1977) (creating ch. 157)

Cases:
- Pacific Gas & Electric v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983) (federal preemption of nuclear plant safety regulation)
- Committee to Save the Bishop's House v. Medical Center Hospital, 137 Vt. 142 (1979) (plain meaning rule)
- Holmberg v. Brent, 161 Vt. 153 (1993) (legislative history when statutory language is ambiguous)
- Lemieux v. Tri-State Lotto Commission, 164 Vt. 110 (1995) (broad statutory language permitted assignment)
- State v. Oliver, 151 Vt. 626 (1989) (common law in force at enactment guides interpretation)
- Chrysler Financial Co. v. Indiana Dep't of State Revenue, 761 N.E.2d 909 (Ind. Tax Ct. 2002) (silent statute permits assignment)
- In re Appeal of Ford Motor Credit Co., 275 Kan. 857 (2003); Suntrust Bank v. Johnson, 46 S.W.3d 216 (Tenn. Ct. App. 2000); Daimler Chrysler v. State Tax Assessor, 817 A.2d 862 (Me. 2003); Daimler Chrysler v. Commissioner of Revenue Services, 36 Conn. L. Rptr. 345 (Conn. Super. Ct. 2003) (strict construction; statutory rights not assignable absent express authorization)

Source

• Landing page: https://ago.vermont.gov/about-attorney-generals-office/attorney-general-opinions
• Original PDF: https://ago.vermont.gov/sites/ago/files/2025-11/FO%202004-1.pdf

Original opinion text

April 30, 2004
Sen. Peter Welch, President Pro Tempore
State House
Montpelier VT 05602
Re: Vermont Yankee Facility – Spent Fuel Storage
Dear Senator Welch:
In a letter to Attorney General Sorrell you have asked for an opinion
concerning legal issues involving the storage of spent fuel at the Vermont Yankee
Nuclear Power Facility (Vermont Yankee).
Your questions arise in the context of the efforts of the current operator of
Vermont Yankee to obtain approval to increase the output of the plant by 20%. If
the output of the plant is increased, fuel will be used faster and consequently the
current on-site facility for storage of spent fuel will reach the limit of its capacity
sooner.
Whether or not the output of Vermont Yankee is increased, the capacity of
the existing spent fuel storage pool at Vermont Yankee will be reached within the
foreseeable future. This opinion assumes that the operator of Vermont Yankee will
seek approval for on-site dry cask storage of spent fuel before the existing storage
pool reaches it capacity.
Your specific questions are as follows:
First, what authority or responsibility does the Vermont General Assembly
have to address the issue of dry cask storage at the Vermont Yankee facility?
Second, what is the legal difference between temporary storage and long term
storage, and are they treated differently under Vermont Law?

Third, how does new ownership of the Vermont Yankee facility by Entergy,
instead of the Vermont Yankee Nuclear Power Corporation, change how the law is
applied if at all?
The statutory provisions that deal with storage of radioactive material are
found at 10 V.S.A. Chapter 157.
10 V.S.A. Chapter 157 provides that no facility for the deposit, storage,
reprocessing or disposal of spent nuclear fuel elements may be constructed or
established in Vermont unless the general assembly finds that it promotes the
general good and approves a petition for approval of the facility. Therefore, if
Chapter 157 is applicable, dry cask storage could not be undertaken without the
specific approval of the general assembly. Approval would have to be expressed
either by passage of a bill or a joint resolution.
Applicability of Chapter 157 turns on the interpretation of the exemption
section found at 10 V.S.A. § 6505. That section reads as follows:
"This subchapter does not apply to any temporary storage by Vermont
Yankee Nuclear Power Corporation of spent fuel elements or other
radioactive waste at its present site."
As your letter notes, in 2002 Vermont Yankee Nuclear Facility was
purchased by Energy Nuclear Vermont Yankee, LLC (Entergy). The sale gives rise
to the question of the scope of § 6505. Is that exemption intended to apply to the
Vermont Yankee Nuclear Power Corporation or is it intended to apply to the site or
facility?
Section 6505 does make reference to the Vermont Nuclear Power
Corporation. The plain meaning of the language in that section gives some strength
to the argument that the legislature intended the exemption to apply only to the
corporation that was operating the facility at the time that the legislation was
passed. In interpreting the statute we must assume that the legislation was drafted
advisedly, and that the plain ordinary meaning of the language used was intended.
Committee to Save the Bishop's House v. Medical Center Hospital, 137 Vt. 142
(1979). Additionally, there are other statutory provisions in which the legislature
makes reference to the Vermont Yankee site. (See 10 V.S.A. § 7001(13) and §
7011(5)). There are also provisions in which reference is made to the Vermont
Yankee facility. (See 10 V.S.A. § 7002(21)) Therefore, it is apparent that the
legislature has used language making distinctions between the corporation, the
facility and the site.

As a general rule, reference is made to legislative history if the meaning of
statutory language is ambiguous. Holmberg v. Brent, 161 Vt. 153 (1993). Here we do
not view the language as ambiguous. However, in an abundance of caution we have
looked at the legislative history.
10 V.S.A. Chapter 157 came in being in 1977 when Public Act No. 77 was
passed and signed by the governor.
Act No. 77 was originally introduced as H. 261. That bill was considered by
the House Government Operations Committee. The Committee held a public
hearing on the bill on February 22, 1977. Not surprisingly, most of the testimony
focused on the general provisions of the Act. However, at the hearing John Beck
testified on behalf of his employer, Vermont Yankee Nuclear Power Corporation.
Mr. Beck testified that his employer would not oppose H. 261 provided that it
included a "savings clause" that would exempt the continued operation of Vermont
Yankee from the provisions of the act. At the conclusion of his remarks Mr. Beck
had the following exchange with the Committee Chair:
Rep. Douglas:
Just so I am clear, Mr. Beck, your proposed exemption
refers to the plant that is in operation in Vernon now, but it would not apply
to any other plant that your company would propose.
Mr. Beck:

That is correct.

It could be implied from the chair's question that he was of the opinion that
the exemption referred to the plant. However, the chair's question does not suggest
that the exemption does not also apply to the corporation. On March 28, 1977 the
Committee on Government Operations reported in favor of passage of the bill as
amended. One of the amendments was the savings clause, which reads as follows:
This act shall not apply to any temporary storage by Vermont Yankee
Nuclear Power Corporation of its spent nuclear fuel elements at its present
site.
The language of the savings clause of 1977 can be reasonably read as being
specific to both the corporation and the site. The same is true as to the language of
the current § 6505.
Based on the foregoing, we do not find that the legislative history contradicts
the plain meaning of the language used in § 6505. It is our opinion that the
exemption contained in § 6505 is applicable only to the temporary storage of
radioactive waste by the Vermont Yankee Nuclear Power Corporation at the Vernon
site. There is nothing in the language of the statute that suggests that the
exemption applies to any entity other than the Vermont Yankee Nuclear Power
Corporation. We find nothing in the legislative history to suggest that the plain
meaning of the language be ignored.
Having concluded that § 6505 applies only to the Vermont Nuclear Power
Corporation, we must consider the question of possible assignment or transfer of the
exemption contained in §6505 from the Vermont Yankee Nuclear Power
Corporation to Entergy.
At the outset, it is important to note the Vermont Nuclear Power Corporation
itself was not sold. Under the purchase and sale agreement dated August 15, 2001,
what was sold and transferred is a number of assets. Included among those assets is
"all of the Seller's right, title, and interest immediately prior to Closing in and to all
properties and assets constituting or used in the operation of the Facility on or prior
to the Closing Date (collectively, "Acquired Assets"), …" Consequently, we will
assume for purposes of this opinion that purchase and sale agreement intends the
transfer or assignment of the exemption contained in § 6505.
The intent of the parties as expressed in the purchase and sale agreement
will have no effect if the statutory exemption is not transferable.
It is not clear on the face of the statute whether the exemption for
Vermont Yankee Nuclear Power Corporation contained in 10 V.S.A. §6505 is
assignable. Certainly the Legislature may authorize assignment if it chooses
to do so. In Lemieux v. Tri-State Lotto Commission, 164 Vt. 110 (1995), the
Vermont Supreme Court determined that the then existing lottery statutes
not only did not prohibit assignment of lottery prizes, but in fact conveyed "a
broad power, not a limited one," to assign lottery prizes pursuant to a judicial
order ("any person pursuant to an appropriate judicial order may be paid the
prize to which the winner is entitled." 31 V.S.A. §674(L)(1)). Id. at 114.
The Legislature may also expressly prohibited assignment of statutory
rights. In 24 V.S.A. §2255, for example, the General Assembly prohibited the
assignment of a junkyard license. The "[a]pproval shall be personal to the
applicant and not assignable." Id.
In the case of 10 V.S.A. §6505, however, the Legislature has not stated
whether it intended to authorize, or limit, an assignment of the exemption:
"[t]his subchapter does not apply to any temporary storage by Vermont
Yankee Nuclear Power Corporation of spent nuclear fuel elements or other
radioactive waste at its present site." Thus, the statute is silent as to
assignability.

There does not appear to be any court precedent in Vermont concerning the
assignability of statutory rights. There are several recent decisions from other
states concerning the assignability of tax deductions, which may provide some
guidance.
In Chrysler Financial Co. v. Indiana Dep't of State Revenue, 761 N.E.2d 909
(Ind. Tax Ct. 2002), the Indiana Tax Court was faced with a statute that was silent
on the issue of whether an auto dealer could assign its rights to a tax deduction.
The Court in that case looked to common law for guidance on the question. It
determined that Indiana common law permitted the assignment of contractual
rights, statutory rights and causes of action. Accordingly, the court ruled that
Indiana law permits the assignment of tax deductions.
Another line of tax cases, however, arrives at the opposite result. In In Re
appeal of Ford Motor Credit Co., 275 Kan. 857 (2003); Suntrust Bank v. Johnson, 46
S.W.3d 216 (Tenn. Ct. App. 2000); Daimler Chrysler v. State Tax Assessor, 817 A.2d
862 (Me. 2003); and Daimler Chrysler v. Commissioner of Revenue Services, 36
Conn. L. Rptr. 345 (CT Super. Ct., J.D. New Britain 2003) the courts all read their
respective tax laws strictly. "Tax credits are conferred by legislative grace and are
not assignable as a contractual right in the absence of either explicit contractual or
statutory language." Daimler Chrysler v. State Tax Assessor, 817 A.2d 862, 866
(Me. 2003). Rejecting the reasoning of the Indiana Tax Court, the Connecticut
Superior Court instead took its lead from the Kansas Supreme Court, and
determined that principles governing the interpretation of tax credit and exemption
statutes should overcome more general assignment law. "The right to a sales tax
refund would be a statutory right . . . not a common-law principle." Daimler
Chrysler v. Commissioner of Revenue Services, 36 Conn. L. Rptr. 345 (CT Super.
Ct., J.D. New Britain 2003) quoting from In Re appeal of Ford Motor Credit Co., 275
Kan. 857, 871 (2003).
Obviously, neither line of cases is controlling in Vermont. They may provide
guidance, however, in determining how a Vermont court might interpret the statute
at issue. If a Vermont judge were to utilize the Indiana court's formula, he or she
could determine that the Vermont Supreme Court has indeed relied upon common
law to interpret otherwise neutral statutes. State v. Oliver, 151 Vt. 626, 563 A.2d
1002 (Vt. Jun 16, 1989) ("must be guided by the fundamental principle that the
common law in force at the time the statute was passed is to be taken into account
in construing undefined words of the statute."). Unfortunately, there does not
appear to be any case law recognizing a common law right to assign statutory rights
in Vermont. Therefore, it could be difficult to rely on this precedent.
Applying the other line of cases, it could be argued that an exception to the
nuclear waste disposal statutes should also be read strictly. Where the Legislature

has not seen fit to create a right of assignment, none should be read into the law.
Obviously, it could also be said that this line of cases applies only to questions
involving tax refunds.
On balance, given the lack of express legislative intent and the lack of clear
precedent permitting the assignment of statutory rights, we believe that it is more
likely than not that a Vermont court would refuse to enforce such an assignment.
In light of the above, our opinion concerning your specific questions is as
follows.
First, the Vermont General Assembly has authority to address the issue of
dry cask storage under 10 V.S.A. Chapter 157.
Second, both temporary and long term storage are within the scope of 10
V.S.A. Chapter 157.
Third, as a result of the transfer of ownership of the Vermont Yankee facility
dry cask storage at that facility is not exempted from 10 V.S.A. Chapter 157.
I hope that this is responsive to your concerns.
Very truly yours,
Michael McShane
Assistant Attorney General
Approved: ____

cc: Sen. John Campbell
Sen. Ann Cummings

Note, however, that nuclear power plants are extensively regulated by the federal government
under the Atomic Energy Act. State regulation of operation and safety at such plants is generally
preempted. Pacific Gas and Electric v. Energy Resources Commission, 461 U.S. 190 (1983). State
regulation of matters other than operation and safety would not be preempted.