MONTPELIER, Vt. – State prosecutors have decided not to charge Entergy Corp. executives with lying to regulators about the presence of underground piping at its Vermont nuclear power plant, saying the executives showed themselves to be untrustworthy but not criminally liable.
Attorney General William Sorrell said a 17-month investigation into testimony that Entergy executives had given to the state Public Service Board concluded that there was no "smoking gun" to show they had committed perjury.
The executives had told the board that the Vermont Yankee nuclear power plant didn't have underground piping that might leak radioactive substances. The pipes were found later not only to exist, but to be leaking tritium, a radioactive form of hydrogen that can cause cancer when ingested in large amounts.
Company officials later announced they had misled state officials in their statements, but said they had not done so intentionally.
"Clearly, Vermont Yankee personnel repeatedly failed to meet a minimally acceptable standard of credibility and trustworthiness, but proving that perjury took place is another matter entirely," Sorrell said. "We lack the smoking gun necessary to prove the crime, and it would be unethical and irresponsible for us to press criminal charges when we do not have the evidence to meet our heavy burden of proof."
Entergy spokesman Michael Burns said the company had cooperated with the investigation and was pleased it was over.
"We take our responsibility to deal openly and honestly with stakeholders very seriously," he said in a statement. "Some employees failed to live up to our highest expectations and values, and after our own internal investigations, we took disciplinary action against them over a year ago."
The criminal probe came against the backdrop of one of the most — if not the most — contentious debates in the country about the future of a nuclear plant.
Vermont Yankee's initial 40-year license expires next March, and a large and politically ascendant anti-nuclear movement has been pushing for years for the state's lone reactor to be retired. Vermont is the only state with a law requiring both houses of its Legislature to give their OK before utility regulators can issue a renewed state permit for continued operation.
After the twin revelations in January of 2010 that tritium was leaking at Vermont Yankee and that the company had made misleading statements about underground pipes, the state Senate voted 26-4 against state relicensing.
In March, Entergy received a federal license extension from the U.S. Nuclear Regulatory Commission. It filed a still-pending lawsuit against the state in April, saying the state is pre-empted under federal law from shutting the plant down.
As the Legislature undertook a series of studies to help it decide Vermont Yankee's fate, it said in one law that among the items to be inspected at the plant should be "an underground piping system that carries radionuclides." Leaks in such pipes at reactors around the country have become an increasing concern in recent years; The Associated Press reported last month that they've now occurred at three-quarters of U.S. nuclear plants.
Sorrell said the company repeatedly made misleading statements to lawmakers and legislative consultants, denying the existence of such underground piping. Those statements "were not under oath and therefore could not constitute perjury, even if knowingly false," the attorney general said.
But on two occasions, similar statements were made under oath to the Public Service Board by Jay Thayer, Entergy vice president for nuclear operations, and Mike Colomb, site vice president at Vermont Yankee. Both men, though, couched their testimony in what they believed about the presence of underground pipes.
Thayer on Mach 20, 2009, said: "I don't believe there are active piping systems underground containing contaminated fluids today."
Colomb on May 26, 2009, said: "I believe we had identified one pipe (that) leaked in the past, did contaminate some soil under the building, has since been sealed, and a new line that is now underground was routed."
Sorrell said of Thayer that his investigators "could find no evidence that he did not believe this to be true," so he could not be charged with perjury. On Colomb, he said that "despite the fact that the answer was misleading, it does not, absent additional evidence to the contrary, constitute perjury."
Gov. Peter Shumlin said he respected Sorrell's conclusion but expressed disappointment with the company.
"We expect our businesses to act in a credible and trustworthy manner," Shumlin said in a statement. "Although the attorney general has decided not to pursue charges here, his investigation clearly describes the pattern of misinformation by Entergy Louisiana. These facts and others lead to the conclusion that Entergy Louisiana's business-as-usual is not how we expect businesses to act here in Vermont."
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