Land Court Says “Few Facts” in Dispute in Lawsuit Challenging Entergy’s Nuclear Waste Storage; Zoning Case Headed to Trial

Lesley University intern, Marcel Howard, writes about the Pilgrim nuclear waste storage zoning case. Marcel is a 3rd year student at Lesley, majoring in Political Science with a minor in Environmental Studies and will be focusing on issues related to Pilgrim’s nuclear waste storage project for the semester.

The zoning lawsuit filed by local residents in August 2013 is moving toward trial. Residents filed the case against Entergy Nuclear Generating Company, the owner and operator of the 680-megawatt Pilgrim Nuclear Power Station.

The lawsuit claims that Entergy violated Plymouth zoning laws by failing to get a special permit for the construction and operation of the nuclear waste storage facility that will be used for dry cask storage of spent nuclear fuel at the Pilgrim site. In August 2014, Land Court Judge Foster rejected Entergy’s motion to dismiss the case for lack of standing. Entergy alleged that none of the plaintiffs had a legal interest that was recognized by the law and had no right to bring the case. The Court ruled that 11 of the 18 plaintiffs had asserted valid claims of harm to their real estate from the dry cask project. The case has been in the discovery stage since.

The plaintiffs’ goal in the case is to win a ruling from the court that orders Entergy to go back to the Zoning Board of Appeals in Plymouth to get a special permit for the dry cask storage project. Under the Town’s zoning laws, the Board would have to hold a public hearing and is required to impose conditions on the special permit that would ensure the project meets appropriate standards.

On February 4, 2015, both parties appeared before Judge Foster at Land Court in Boston for a status conference in order to discuss the next steps in the case. The Court stated it wants to move the case forward and Judge Foster said, “There appear to be few facts in dispute.” In other words, the case should turn primarily on questions of law. The question of law in the case is whether Entergy’s nuclear waste storage project needs a special permit under the Town of Plymouth bylaws. The plaintiffs have submitted briefs and legal arguments to the Court saying the project needs a special permit.

Throughout the status conference, multiple dates were discussed for the continuation of the case. The next important date is March 2nd, when the court will hold a hearing on the plaintiffs’ motion to compel discovery from Entergy. Plaintiffs filed a brief and motions saying that Entergy is violating the last of discovery by refusing to provide information related to their defense of the case. The plaintiffs claim, “There is no dispute that Entergy is in actual possession of the requested documents or has reasonable access to them through their affiliated companies. The few documents that it has produced are plainly only a small subset of those that should be produced.” Read the brief →

The parties both have until March 31st to finish discovery in the case. The Court will have a status conference on April 7th to address moving forward toward trial and setting a date. All status conferences and hearings are open to the public.

One issue the plaintiffs raised with the Court on February 4, 2015 was Entergy’s demand that plaintiffs come to Boston for depositions at Entergy’s lawyers’ offices. Plaintiffs’ lawyer Meg Sheehan asked the court to allow the depositions to be held in Plymouth where Entergy’s Pilgrim offices are located and where the plaintiffs live. The court denied the plaintiffs request that Entergy be ordered to take the depositions in Plymouth. Entergy stated they did not want the depositions in Plymouth because they feel as though it is a “hostile environment.” With Entergy’s lack of negotiation on depositional terms, one may start to believe that the company will put everything it has into these depositions in order to receive the upper hand over the plaintiffs in court.

If everything goes as expected, the case may move to a trial in the fall of 2015. However, with Entergy’s failure to properly respond to discovery, the case will likely run into delays along the way.

1 Comment

  1. Wow, this Marcel is very talented. Very detailed, articulate and very impressive write up. Can’t wait to read more.

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