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 that Entergy's dry cask storage was not exempt under § 6505. His analysis had two parts.

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 statute was silent on whether its exemption could be assigned. Vermont had no controlling precedent on assignment of statutory rights, and cases from other states pointed in different directions. The AG concluded that, on balance, it was "more likely than not" that a Vermont court would refuse to enforce an assignment. He did not state that a Vermont court had already resolved the question.

For the request presented, the AG concluded that dry cask storage at the facility after the ownership transfer was not exempt from chapter 157. Both temporary and long-term storage fell within that chapter, under which a new facility required General Assembly approval. The opinion's footnote recognized federal preemption of state regulation of plant operation and safety.

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.

Historical summary

For state legislators (at the time): The opinion concluded that dry cask storage after the ownership transfer was not exempt from chapter 157 and explained the General Assembly's approval role under that chapter.

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 treats § 6505 as an exemption for storage by Vermont Yankee Nuclear Power Corporation at its site. It predicts, without claiming a settled Vermont rule, that a court would more likely than not reject assignment of the exemption.

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 and Electric v. Energy Resources 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.