The Proposed Entergy Settlement is Good for Vermont

The Proposed Settlement

The state of Vermont and Entergy Corporation have been battling each other for years, but the two parties reached an agreement in December about the future of Vermont Yankee. Entergy has owned and operated the 42-year-old nuclear plant in Vernon since 2002. When Entergy announced plans to close the plant by December 2014, the state, which has passed laws aimed at preventing the plant from operating, seemed surprised. It also lost some negotiating leverage. Even so, the settlement, which the Vermont Public Service Board must still approve, is a good deal for Vermont — better than I thought possible. Let’s take a look its four main points: the Certificate of Public Good; pending lawsuits; payments; and decommissioning.

The Certificate of Public Good: In 2012, the Nuclear Regulatory Commission renewed Vermont Yankee’s federal license for 20-year-period, through 2032. However, to keep operating for that period, the plant also needed state approval, specifically a Certificate of Public Good from the Public Service Board. The Shumlin administration vigorously opposed granting such a certificate, and used the state approval process to try to force the plant to shut down when its original license expired. Now that Entergy has amended its petition to operate only through the end of this year, not through 2032, the state will be on Entergy’s side before the Public Service Board.

Lawsuits: The main federal lawsuit hinged on whether Vermont interfered in the federal regulation of nuclear safety. In both district court and in appeals court, Entergy won its case, arguing that the Legislature attempted to regulate nuclear safety when the state Senate voted in 2010 to deny the plant a certificate of public good. Nuclear safety, like airline safety and drug safety, is regulated at the federal level. Though Entergy won its case, both Vermont and Entergy conceivably had grounds to appeal to the U.S. Supreme Court. Now, according to the agreement, neither side will appeal. I suspect both sides breathed a sigh of relief.

The agreement also settled another lawsuit about a new “generation tax.” The state had raised the generation tax on Vermont Yankee to $12 million a year. This is a tax paid by Entergy for every kilowatt-hour that the plant generates. However, the higher tax rate applied only to power plants that were built after 1965 and were larger than 200 megawatts! Of course, there’s only one such plant in the state, and Entergy quite reasonably felt targeted. In the agreement, Entergy agreed to drop this suit and to pay the $12 million for 2014.

Payments: Entergy agreed to pay more than the new generation tax. In 2015, the plant won’t be generating any power, so Entergy won’t be required to pay the generation tax. However, Entergy agreed to pay the state $5 million in 2015, to help the state as it deals with the loss tax revenue Vermont Yankee generated. Entergy also agreed to other relatively short-term payments: a payment of $5 million to the Clean Energy Development Fund, and a further payment of $2 million a year for five years to help Windham County adapt to the plant closing.

In his address on the state budget, Gov. Peter Shumlin mentioned “one-time payments” from Entergy as part of his plan to close the state’s budget gap.

The state appears to have won the financial negotiations. However, the plant closing means that $60 million a year in payroll will disappear from the local economy. These payments hardly begin to close that gap for Vermont and neighboring states. As I have said before, it would have been far better if the plant remained open. Some people say that decommissioning will be a similar boost to the local economy, but it won’t be. Not in the next few years at least.

Decommissioning: This has been, and remains, the most difficult and contentious part of the agreement. When Entergy bought the plant in 2002, the agreement it signed with the state allows Entergy to use a delayed decommissioning plan called SAFSTOR, approved by the NRC. With
SAFSTOR, decommissioning can take up to 60 years but it could also be completed sooner. The state wanted to decommission the plant sooner, much sooner  —  immediately, as a matter of fact.

However, in the course of the negotiations, I suspect the state learned some facts about decommissioning. Decommissioning cannot start for six or more years after the plant is closed. After the plant is shut down, the last fuel from the reactor is placed in a spent-fuel pool. This fuel must cool in the pool for five years before it can be removed and put into dry-cask storage. In plants such as Vermont Yankee, the fuel pool is in the same building as the reactor.

You can’t begin tearing down the building while the fuel pool is still in use. So there has to be at least a five-year delay between plant closing and the beginning of major decommissioning work. Therefore, there will be a gap of several years in the economic activity around the plant. In the agreement, Entergy agreed to move the fuel from the pool in a timely fashion. In the press conference about the recent agreement, Shumlin said that all fuel bundles should probably be moved into dry cask storage within about seven years.

Maine Yankee dry cask storage

Other major decommissioning work can begin after the fuel is moved to dry casks. The decommissioning fund is around $580 million now, and decommissioning is estimated to cost between $600 million and $1 billion. Entergy agreed to start full decommissioning when the fund is large enough to to pay for the job. (Federal rules for SAFSTOR stipulate that owners can wait up to 60 years to complete decommissioning, no matter how big the fund.) Entergy also agreed to put $25 million into a separate fund for “greenfielding” the site. Greenfielding generally involves excavating, grading and seeding.

The Next Steps

Of course, not everyone is happy with the agreement. Opponents loudly insist that decommissioning must start immediately (it can’t), and others worry that it will take years for Entergy to have enough funds to start decommissioning. The definition of “greenfielding” is also contentious.

Even so, the agreement is a major step forward in what has been a hard battle between Vermont Yankee and the state. Both are arguing in favor of this agreement before the Public Service Board. That’s quite an unexpected development. Either side could withdraw from this agreement if the Public Service Board does not approve it by March 31, however. The board is now considering this plan, and the public comment period is still open. At the PSB website, you can read docket 7862 and write your comments. I encourage you to do so.

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Here is a direct link to the comment form on this docket.

http://psb.vermont.gov/docketsandprojects/public-comment?docket=7862

When reading docket 7862, you will note that there are two major document filings: the Memorandum of Understanding and the Settlement Agreement.  The Settlement Agreement is the agreement between Entergy and the state agencies, while the Memorandum of Understanding is the part of the Settlement Agreement that lies within the jurisdiction of the Public Service Board. The Board will rule on the Memorandum, but the Settlement Agreement was filed for informational purposes.


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The article above is an op-ed that I wrote (plus a short end section on links).

The op-ed has been published in the Valley News, True North Reports, and Vermont Digger.  It may also be published other places in Vermont. 

Nuclear Opponents View of New Hydro in Vermont

New Hydro Power in Vermont

I blogged recently about the potential for new in-state hydro power in Vermont.  Quoting many studies, I concluded that not much new in-state hydro power is available for Vermont.  My estimate was about 25 MW possible. Please read the entire post for the justification of this number.

Vermont Yankee opponents, on the other hand, often say there is much more hydro available for Vermont.  Among the opponents, VPIRG is the most honest: their  Repowering Vermont report predicted only 15 MW expansion in hydro power.

Other opponents wave their hands in the air and claim that new hydro in Vermont can be a serious addition to the fuel mix in Vermont.  They don't state numbers and they don't state references. They don't adhere to the generally accepted rules of evidence.  They don't...

Aw heck.  I'll just quote them.

Evidence, Pre-Filed Testimony, and Loaded Questions

On February 14, I attended a Public Service Board hearing about the Certificate of Public Good for Vermont Yankee. At that hearing, Entergy presented Jeffrey Tranen as an expert witness.  You can read Mr. Tranen's resume here, and you can read his pre-filed testimony for the Board at the relicensing docket.  Tranen has held responsible positions with grid operators and utilities. Tranen testified on the need for reliability and a good fuel mix on the grid.

Vermont Yankee (620 MW)
Vernon Dam (34 MW)

In general, substantive issues are supposed to be entered into the docket as pre-filed testimony.  You can see volumes of pre-filed testimony at the relicensing docket site, above.

New England Coalition is an old-line nuclear opponent, and an intervenor in the docket.  The lawyer for the New England Coalition was Brice Simon.

Examination is supposed to be on the basis of the pre-filed testimony.  However, the Public Service Board is quasi-judicial, not a court of law, so there is some leeway.  Also, in most courts of law, while leading questions are sometimes permissible, loaded questions are not.  Loaded questions assume an answer, and the classic loaded question is described in Wikipedia as follows:

"Have you stopped beating your wife?" indirectly asserting that the subject has beaten her at some point.

Okay, cutting to the chase here.  Brice Simon's questions for Tranen seemed so inappropriate that I obtained a copy of the transcript for that day so that I could quote the exchange directly. The transcript is a public record, but it is not on the Public Service Board website.

See what you think of these questions.

I Know and You Don't--So Hah-Hah!

Context: Discussion of Vermont Yankee's role in diversifying the fuel supply mix in this area, an area which has limited natural gas pipelines.

(Questions by Brice  Simon, NEC lawyer; answers by Jeffrey Tranen, Entergy Witness; Objection by Robert Juman, Entergy Lawyer; Comment by James Volz, Chairman of the Public Service Board)

Illustration from
Renewable Energy Vermont

Q. Just to follow up on that one, isn't locally produced hydro power one type of fuel that can step in to meet that need rather than Vermont Yankee?

A. Local hydro is already factored into the dispatch.

Q. What I'm asking is increased local hydro over time could come in to meet that need, correct?

A. I question whether there's enough increased local hydro of the magnitude of a Vermont Yankee power plant, but in general any other source of power than gas which is economic -- more economic than gas to operate in the dispatch would reduce the amount of gas that's required during the operating day.

Q. Are you aware of how much untapped hydro resources there remain in the State of Vermont?

A. I don't have specific numbers, but when I was actively involved in management with regard to New England it was my understanding that there was very little economic new hydro in New England to be developed.

Q. And when was that?

A. A decade ago.

Q. A decade ago. So you're not aware of all of the wonderful improvements that Vermont hydro developers are seeing that are increasing the available economic hydro in the state, are you?

A. I am not aware of the -- to what extent there could be new hydro that would be economic to develop in Vermont.

Q. Are you aware of the recent developments in run-of-the-river hydrologic turbines?

MR. JUMAN: Objection. What developments are you referring to?

MR. SIMON: I'm asking if the witness is aware of the developments that I'm aware of that I'm not going to tell about.

MR. JUMAN: Then I object to that question. You're asking him about something you're not sharing with him.

MR. SIMON: I don't have to share it with him.

MR. JUMAN: You're asking him to read your mind.

MR. SIMON: No. I'm asking his state of knowledge. I don't have to tell him.

CHAIRMAN VOLZ: I think it's fair to ask him if he's -- we are -- what developments in hydro technology is he aware of.

MR. SIMON: I'll rephrase the question happily.

BY MR. SIMON: Q. What, if any, developments in the area of run-of-the-river hydrologic turbines are you aware of?

A. I am not aware of any hydroelectric technology developments that would make new hydro development economic in competing with gas fired generation to any great extent.

Q. Thank you. ..

My Conclusion

A fishy fish from Wikipedia

Mr Simon did not even attempt to justify his implied assertion that recent improvements had greatly expanded hydro power availability in Vermont.  He didn't enter anything about these new improvements into the pre-filed testimony. (All the NEC pre-filed testimony is about fish and cooling towers.) Instead, Simon resorted to loaded questions and "I know but I'm not telling." With this, he tried to convince the Public Service Board that there is lots of new hydro available to Vermont.

Simon seems to be claiming that there is new hydro available, on the same scale as Vermont Yankee power, but as small run-of-the-river plants, using an unreferenced new technology.  And he doesn't have to tell anything more about it.

Hopefully, the Board is smart enough to see through this type of questioning.

Three Vermont Yankee Hearings: The Week of Living Lawyerly

The week of January 14, there are three different hearings about Vermont Yankee in three separate courts and on three separate subjects.  It is the Week of Living Lawyerly.

The hearings are in the Federal Appeals Court, the Vermont Supreme Court, and  the Public Service Board. (The Public Service Board hearing concerns the need for a new diesel generator.)

First Hearing: Federal Court

What: Federal Court of Appeals Hearing on State and Entergy Appeals

Where: 2nd Circuit Court of Appeals (in New York City)

When: January 14, Monday

Why: Judge Murtha ruled in favor of Entergy in the main federal case, and the state appealed the ruling. The state mainly challenged the part about pre-empting nuclear safety issues.  Entergy also placed two appeals before the circuit court.  The first appeal was about spent fuel rods, and the second appeal was about the NEC suit in Vermont Supreme Court.  This second appeal is discussed below, in the Supreme Court section. 

What is at stake: In the main issue, whether the Circuit Court will (or will not) uphold the Murtha ruling.  

What is at stake, part two: Whichever way the Circuit Court rules, both sides say they will appeal the Circuit Court ruling to the United States Supreme Court.  

Comments by the Blogger:

The Circuit Court calendar shows that both side have a full fifteen minutes each to present their cases.  This length of time seems to be standard for arguments before this court.  I am not a lawyer, but to me, this means that the written material in the docket is the important material.

In terms of the Entergy appeals,  Murtha granted the first appeal, and has just recently turned down the second appeal (about NEC and the Vermont Supreme Court).  I blogged about the turn-down of the appeal against the NEC case in  Hot Potato Continued.

I have some, but not all, of the docket material for the federal case (and the Public Service Board case) posted at Dockets for Public Service Board and Courts on the Vermont Energy Education Project website.

The State asked for "expedited oral arguments" in this case, with the arguments to be presented "as soon as November."  Entergy asked for more time.  The court granted the State of Vermont request for expedited oral arguments, but the arguments are being heard in January.  (Don't ask me...I have no idea what this implies.  I just thought I would mention it.)
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Vermont Supreme Court

Second Hearing:  Vermont Supreme Court

What:  Hearing on NEC Request to Vermont Supreme Court

Where: Vermont Supreme Court in Montpelier Vermont

When: January 16, Wednesday

What is at stake: A long-time plant opponent, New England Coalition against Nuclear Pollution (NEC) has asked the Vermont Supreme Court to step in and order Vermont Yankee closed. They want the Vermont Supreme Court to issue this order in accordance with a clause in the sale agreement from 2002.  The Public Service Board  and the Department of Public Service have asked the Vermont Supreme Court to deny this request.

What is at stake, part two:  If the Supreme Court were to issue an order to close down Vermont Yankee, everyone expects Vermont Yankee to appeal to federal court.

Comments by the Blogger:

I blogged about this subject extensively in Hot Potato, and Hot Potato Continued. I think that this case is a hot potato that the Public Service Board wants to throw to someone else.

UPDATE: I have put the November 29 Public Service Board statement and the Entergy request for dismissal on a new Vermont Supreme Court filings page at the Energy Education Project site.

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Emergency backup diesel generator
At a sewage treatment plant

Third Hearing: Public Service Board 

What: Hearing on Certificate of Public Good for Station Blackout Diesel Generator Docket #7964

Where: Public Service Board Hearing Room, Bank Building, Montpelier

When: January 17, Thursday

What is at stake: Will Vermont Yankee be allowed to install a new back-up diesel generator?   Vernon Dam will no longer be considered a Black Start facility by ISO-NE. (I blogged about this in Black Start, Black Out and Diesels, Some Clarity) Since the dam will not be maintained as a Black Start facility, the NRC will no longer consider it to be qualified as a Station Blackout back-up facility.  (The dam is still there, of course, and Vermont Yankee still has a direct line to the dam.)  So Vermont Yankee needs a new station black-out back-up facility.  In most cases, this would be a stationary diesel generator.

What is at stake, part two:  In most cases, getting a new back-up diesel for a power plant would be a slam dunk.  However, the Public Service Board is concerned that if it grants a permit for this piece of safety equipment,  Vermont Yankee would continue to operate.

Wait! Whoops!  That was snarky of me.

Of course, I meant to say that the Public Service Board is concerned because

Normally, the Board would not consider a petition from a company that is not in compliance with existing Board orders, unless that company also demonstrated an intent to come  into compliance. Entergy VY has not indicated such an intent here.

That's a quote from the order, and you can read the entire Public Service Board order setting up the diesel-docket here.

It is important to note that "non-compliance with Board orders" basically means...the plant is still operating, after March 21, 2012, while hearings are on-going.  The Board has several dockets about the Certificate of Public Good, and the Board claims that, according to one of the dockets, the plant is not in compliance because a new Certificate of Public Good has not been yet been granted by the Public Service Board.

Comments by the Blogger

No comment.

Hot Potato Continued: Federal Court Turns Down Entergy Injunction Request

Plant Opponent Tries a New Court

On November 29, the Public Service Board (PSB) issued a "strongly worded" but "narrow" ruling against Entergy.  In this ruling, the PSB refused to take the "requirement to have a Certificate of Public Good to operate after March 21, 2012" off the original 2002 Sale Order for Vermont Yankee.  The Board also said, however, that it  did not reach any conclusions concerning the merits of modifying or extending Entergy VY's obligations under existing Orders and CPGs.

Yes, it was a confusing ruling. A long-time plant opponent, the New England Coalition against Nuclear Pollution (NEC), looked at this ruling and used it as a basis for a suit filed  in Vermont Supreme Court.  NEC filed in Vermont Supreme Court, although active hearings were on-going at the Public Service Board and in Federal Court. In other words, NEC was trying their luck with suit in a third court.

I blogged about this opponent filing in The Very Latest Lawsuit: Opponents Will Probably Lose. I had some evidence for this.  The Vermont Department of Public Service has joined other NEC lawsuits against the plant, ever since Shumlin was elected. To my surprise, the Department of Public Service asked the Vermont Supreme Court to deny the NEC request for an injunction.  Then the Public Service Board itself asked the Vermont Supreme Court to deny the NEC petition.

One of the issues is that the Public Service Board's November 29 ruling could be read as an endorsement of third-party suits against Vermont Yankee. I wrote about this in Hot Potato and the New Request: Entergy Asks for an Injunction against PSB and Shumlin in Federal Court.   In other words, the November 29 PSB ruling could be interpreted as tossing the hot potato: Let's you (NEC) and him (Entergy) fight, and leave us (the PSB) out of it!

Entergy Tries an Old Court

As I noted in my Hot Potato post, when NEC filed in Vermont Supreme Court, Entergy filed an injunction against NEC in Federal Court. Entergy filed in the same court  that ruled for Entergy in the original case about Vermont's pre-emption of the federal prerogative to regulate nuclear safety.  The same judge (Gavan Murtha) heard the request for the injunction against NEC.  Yesterday, Murtha ruled against Entergy about the injunction.

Basically, Entergy claimed that the NEC Vermont Supreme Court filing was an end-run around the Federal Court ruling that the Public Service Board should not take action to shut down Vermont Yankee during the federal appeals process.  Judge Murtha did not explicitly agree or disagree with this analysis. However, Murtha noted that NEC was not a party to the federal suit, and that the federal court does not take action against those not involved in federal suits.  Also, the federal court usually does not interfere with state court issues.  Bob Audette at the Brattleboro Reformer describes the Judge's reasoning, including the fact that NEC asked to be a party to the original suit, but was not granted standing by the federal court.

Meanwhile, Ray Shadis of NEC issued a press release that was quoted in the Reformer: "We hope this federal rebuff will serve Entergy as an inoculation of anti-arrogance serum, but we suspect that booster shots will be needed before Vermont Yankee is history and we can move to the details of decommissioning."

Other statements by NEC echo the idea that this federal ruling is not the final "shot" in these battles. Lawyer Margolis of NEC told the Reformer that he expects Entergy to "run to the district court" if the Vermont Supreme Court orders a plant shutdown.

Vermont Supreme Court 

Ignoring the rhetoric, I interpret these statements as: "It's not over till it's over."

Indeed, it is not over yet.

The Future

The next event in this saga will be the Vermont Supreme Court hearing on the NEC request.  As noted above, both the Department of Public Service and the Public Service Board have asked the Vermont Supreme Court to dismiss the request.   (UPDATE: Entergy has also asked for the NEC request to be dismissed.  I have put the November 29 PSB statement and the Entergy request to the Vermont Supreme Court on a new page Vermont Supreme Court Filings, at the Energy Education Project.) As far as I can tell, only NEC wants the Supreme Court to take the case, and the two Vermont commissions have asked it to dismiss the case.  The Supreme Court has scheduled at 30-minute hearing on this case on Wednesday, January 16, at 2:30 p.m.

Vermont Yankee is an Asset to Vermont, and the Sky Is Not Falling: Deb Schulze Guest Post

Deb Schulze

My name is Deb Schulze.  I am a Vermont native and live in North Springfield.

I am speaking tonight in favor of granting Vermont Yankee a Certificate of Public Good.

Vermont Yankee provides safe, clean and reliable electric power.

I have observed with increasing skepticism the tactics of VY’s opponents.  These folks are trying to scare everyone into believing this plant is old and broken down, and that just is not true.

VY is like most any business, it is continually maintained and upgraded and it is also carefully monitored by the Nuclear Regulatory Commission.
Vermont Yankee has saved more than 50 million tons of carbon and other pollutants from being released into the environment.

We now live in a world of big plasma televisions, electric cars and a whole host of electronic gadgets. Our need for electricity is continually increasing.  Closing down Vermont’s largest producer of electricity (two-thirds of the in-state generation) makes absolutely no sense.

Vermont Yankee, along with and its employees and contractors provides more than $100 million per year, into both the local and state economy.  Taxes and payments to the state account for nearly $15 million.

2011, Entergy Vermont Yankee contributed approximately $435 thousand to the community through Entergy open grants, the Entergy Charitable Foundation, site sponsorships, and annual events.  This amount includes Vermont Yankee employee pledges/company match to the tune of $109,000 to the United Way.

The sky is not falling.  Through all of the negativism generated by the anti-nuke activists, Vermont Yankee has been quietly and continuously producing safe, clean, reliable power for over 40 years.

I hope you will grant it a certificate of public good so that it can continue to do so.

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Deb Schulze spoke at the Interactive TV hearing about Vermont Yankee on November 19.  Her husband, Bill Schulze, works at Vermont Yankee.  She was kind enough to share her testimony and provide this picture.

I plan to keep posting pro-VY testimony to my blog, as I can do so.  I have about twenty guest posts of testimony so far, but approximately fifty people made public statements in favor of Vermont Yankee at the two hearings.  I think the individual voices are strong, and the sum of the voices is truly powerful.  So I will keep posting them!

A Safe Plant and the Same Few Protestors: Guest Post by Steve Moriarty

Hello.  My name is Steve Moriarty; I live in Greenfield, MA and have worked at VY for 34+ years.


Prior to that, I worked all around NE for New England Power Service Co., a construction company that services all NE plants.

My background is electrical construction/maintenance, Materials Management, Quality Assurance and Quality Control.

In that first job, I traveled from fossil plant to fossil plant in NE.  Some were oil and some were coal.  I also work at a few Hydro stations.

In 1977 I was assigned to VY. When I first visited the site I was pleasantly surprised.  It was clean, organized and run proficiency.

It was nothing like the dirty fossil plants that I was working in previously.

I soon saw that extraordinary attention was and continues to be paid to safety of the public, workers, and environment.

Procedure adherence was not an option it was and continues to be the standard operating procedure.

I was so impressed by the workplace and the personnel at VY; that I took a permanent position at VY and have been here since (now 39+ years combined service).

I met and married my wife, raised two children in Franklin County.

The bulk of my state taxes are paid to VT.

My daughter worked here as a summer employee while attending college.  She is a Microbiologist and is now married with two healthy and happy children.

My son is a Mechanical Engineer.  He worked here for two summers as an intern, and that experience set him up for success.  He too, is now married and healthy.

I would not have allowed either to work here, if I didn't truly believe it was a good and safe place to work.

Both of my children and my wife cannot believe the day to day difficulty that I must go through as a nuclear worker just to be able to do my job.

This defensive posture, that all nuclear workers are forced to assume, is not a daily task of workers in most professions.

My son noted that "there really aren't many young people speaking out  against your plant".   This was based on discussions over the nuclear  option at UMASS Amherst, while at college.

I got to thinking, and I too realized that I have been looking at the same faces for 10-20-30 years. (i.e. really not a lot of people speaking out against Nuclear, "just the same few").

I also asked my son him what he has heard at college and in the workplace, relative to nuclear power and its future, and his response was that many students in the Engineering program and engineering professionals are in favor of nuclear as a viable green source of energy.

Some, of course, like the idea of wind, solar, or hydro; but they also realize the nuclear power is needed, as well.

One thing that was agreed on was that this country's reliance on coal and oil was something they don't want.

They all seem to be very concerned about the environmental damage being done by fossil fuel, let alone the problems associated with obtaining those fuels.

So, what's the point?  The point is that if "these same few" spent as much energy on working with us to make the next generation of nuclear power plants even better, we all could gain.

It may be time to stop the 10-20-30++++ years of protesting and redirect that energy toward valuable and welcomed input to the future, all of our futures.

Nuclear power is here, it has proven its value, and it can be even more valuable to the environment and our energy demands into the future.

Thank you for your consideration, and I hope you see the real value of allowing Entergy-Vermont Yankee to operate into the future.

________

Steve Moriarty wrote this statement by email and submitted it to the Public Service Board on Docket 7862.  He was kind enough to send me a copy to be used as a guest post.  Moriarty's post and Stuart Endsley's recent guest post are boots-on-the-ground comparisons of nuclear and fossil plants.  Their words may be well known to utility workers, but they cover a subject that you rarely see in print.  Endsley's post: Acid and Air, the Environmental Effects of Non-Nuclear Electricity. 

Acid and Air, the Environmental Effects of Non-Nuclear Electricity: Guest Post by Stuart Endsley

Stuart Endsley

My name is Stuart Endsley and I am in favor of granting a permit to Vermont Yankee. Over the past 32 years, I have worked in many types of power generation facilities -- both nuclear and non-nuclear.

I don’t need to speak of the economic benefit of Vermont Yankee since many business leaders have already done so. Nor do I need to speak about the great benefit local charities receive, you’ve heard from them as well. You, as board members, are smart individuals, and I’m certain you recognize the public good Vermont Yankee provides in regard to those issues.

Instead, I would like to speak of my personal experiences working at different types of power generation facilities -- the facilities that would most likely replace much of the energy generated by Vermont Yankee should it close.

I would like to tell you about a fossil plant I worked in last February where after just six weeks the paint on my car was damaged by the acid rain coming from the stack. The pollution that damaged my car does not know state borders and simply goes wherever the wind blows, including Vermont.  This is certainly NOT in the public’s good.

I would also like to mention a Biomass plant, a so-called “Green Plant,” that I worked in a few years back.  After just two shifts, the caustic chemicals used in the scrubbers ate up the threads in the soles of my shoes causing the soles to fall off. These chemicals were found on the walkways and catwalks and when it rained they simply went down the street and ultimately into the ground water which also doesn’t recognize state borders.  This is certainly NOT in the public’s good.

I’ve worked at wind turbine projects in Iowa, Minnesota, Oklahoma, California, and Texas. At each of these sites I found dead birds that had been killed by the turbines. These birds did not know state borders either and some of them may have come from Vermont. Again, this hidden side effect of wind energy is certainly NOT in the public’s good.

And what about the coal plant in southern Nevada with tens of acres of fly ash containing arsenic and God knows what other carcinogens?  All in public view where the winds were free to carry it where they pleased. Most certainly NOT in the public’s good.

So I close my testimony by asking each of you to consider the true environmental impact of these alternative sources of energy.  I encourage you to personally visit some of these plants to see first-hand, as I have, the impact of these plants in regards to the air we breathe, the water we drink, and the wildlife we enjoy.

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Stuart Endsley works at Vermont Yankee.  He gave this statement at the Public Service Board's November 19 interactive TV hearing on Vermont Yankee's Certificate of Public Good.  He was kind enough to send me a copy of his testimony.

Hot Potato and the New Request: Entergy Asks for Injunction against PSB and Shumlin in Federal Court

The DPS and Public Service Board Don't Join NEC

Public Service Board members David Coen, Commissioner
John Volz and John Burke (left to right in picture)
At November 7 PSB hearing

A few days ago,  the New England Coalition against Nuclear Pollution (known as NEC) sued in Vermont Supreme Court.  NEC asked the Vermont court to shut down Vermont Yankee, although there are two other jurisdictions hearing aspects of the Vermont Yankee case. In an earlier post, Vermont DPS Not Joining Opponent Lawsuit,  I wrote that the Vermont Department of Public Service (DPS) asked the Vermont Supreme Court to deny this NEC suit.

In that post, I wrote that the DPS probably asked the Supreme Court to deny the suit because if the Supreme Court undertook hearing the NEC lawsuit, that lawsuit would invalidate the Public Service Board process.  The DPS charter is to appear before the Public Service Board and take part in the Board process. Naturally, the DPS would want that process respected.

So, I was not surprised to learn that the Public Service Board itself had asked the Supreme Court to deny the NEC petition.  After all, the Public Service Board doesn't want its own process invalidated.

Hot Potato

However, there were still surprises in store for me.  I read last night in Vermont Digger that  Entergy filed a new motion in Federal Court in the against Shumlin, et al (in their official roles) and against the Public Service Board (PSB).


What? A request for a new injunction?

Yet, when I read the  Entergy motion for injunction, their request makes sense.  Not something I would have predicted, but it makes sense.  The Public Service Board has to stop  treating this Certificate of Public Good as a hot potato. "Somebody else take this, pretty please!"

Entergy notes the PSB rulings have been ambiguous. The PSB November 29 ruling pretty much invited third parties to challenge the operation of Vermont Yankee.  On page 5 of the Entergy filing, Entergy quotes the November 29, 2012 PSB ruling: it invites other parties to use the PSB ruling as a basis to bring actions against Vermont Yankee.

Aside: See Entergy quote about the ruling at the bottom of this post. Also, I wrote extensively about this recent ruling which was "strongly worded" against Entergy but also "narrow" and issued on an obsolete docket.  You can also read the ruling here. End Aside.

In other words, in that ruling, the PSB basically says: "The PSB is not going to take action, but you can. Let's you and him fight, and leave us (the PSB) out of it."

I don't understand the points of law, but I do understand that the Public Service Board has written ambiguous statements. The Public Service Board is supposed to hold hearings and issue rulings, and  I think the Public Service Board may be playing "hot potato" instead.  They have written an opinion that encouraged someone like NEC to take the docket off their hands. The Certificate of Public Good is a hot potato...quick, throw it to someone else!

Due Process

The purpose of the March ruling by Judge Murtha was to allow court cases and PSB dockets to continue in a logical and legal fashion, without the constant threat of the state attempting to shut down Vermont Yankee while the legal process is on-going.

It doesn't seem as if the concept of legal due process should be so difficult. You would think due process would be what the Public Service Board wants.  I would think the Board would want their own process to be respected. On the other hand, after a meeting this March in which the Board behaved in an unprofessional and crabby fashion (at least in my opinion), I am not sure what they want.

This Entergy docket for a Certificate of Public Good is a hot potato, politically.  But from the point of view of the law, it's a legal docket, and should be treated as one.

Ultimately, I think that is what the Entergy request is about.  The PSB should handle its dockets professionally. Instead, they issued an odd order on an old docket, and that order looks like an open-invitation to third party lawsuits.  By issuing that order, I think that the PSB hoped that someone will rescue the them from the necessity of making hard choices.

However, Judges and Boards are given the status, authority, and ability to make the hard choices.  That's why they hold the positions they hold.  I hope the PSB  realizes this.

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Longish quote from the Entergy filing:

The PSB did not affirmatively state that it would take action to shut down the VY Station for failure to obtain a new CPG from the Board before March 21, 2012, but the PSB did expressly invite others (such as NEC) to do so: “Entergy VY entered into a binding contract with the Department [of Public Service] and other parties not to operate after March 21 absent Board authorization. Entergy VY has not challenged the validity of this commitment in its  federal litigation.[1] Thus, any of those parties could seek specific performance ... at any time which, if granted, would bar operation after March 21, 2012.” Id. at 19.  

Non-party (to this action) NEC has now accepted the PSB’s invitation, asserting that the PSB’s March 19 and November 29 Orders require an immediate shutdown during the Interim Period despite this Court’s prior rulings.

Also note you can see many relevant filings at the Energy Education Project website, by following links from this page: Dockets for Public Service Board and Courts.
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This is the updated post.  I took the word "Update" out of the title, because it has been updated for several days already.

The correction for the update was  the following:

Entergy brought this request for injunction in Federal Court,  on the same docket as the main lawsuit in federal court.  It was not a new suit, and it was not brought in Vermont Supreme Court.  In my original post, I said this was a new suit in Vermont Supreme Court.  The post has been changed to show that correction.  

Very Latest Lawsuit Updated: Vermont DPS not joining opponent

The Ruling and the Lawsuit

In my blog post a few days ago,  The Very Latest Lawsuit,   I described an order that the Public Service Board filed, which was strongly-worded against Entergy, but was not a summary judgment against the plant.

In response to that order, an opponent group, New England Coalition Against Nuclear Pollution (commonly called NEC), filed a suit in Vermont Supreme Court to have the Vermont Court take action and shut down the plant.

On the radio, Pat Bradley of WAMC had interviewed me and Pat Parentau of Vermont Law School.  I am a plant supporter: Parentau is an opponent.  We both agreed that this suit was not likely to get anywhere.

However, NEC hoped to have the Vermont Department of Public Service (DPS) join them in the suit, as DPS had joined them in other suits to attempt to shut down Vermont Yankee.

DPS will not join NEC in this one.

The Department of Public Service Steps Away from NEC

Yesterday, to my surprise, the DPS filed a brief asking the Vermont Supreme Court to deny the NEC appeal. Here's the Burlington Free Press article on the DPS filing  I also link to the DPS filing itself  posted at the Energy Education Project website.  The introduction to that filing:

While the Department appreciates the dedicated work of NEC and other parties over years of litigation with Entergy, the Department nonetheless respectfully requests that the Court refuse the relief requested under 30 V.S.A. $ 15. NEC's complaint does not encompass proper grounds for Section 15 relief; and other reasonable relief is available in pending proceedings before both the Board and the Second Circuit Court of Appeals.

Well, okay, DPS isn't really stepping away from NEC: they mention "dedicated work" and all that. But DPS realizes that there is no reason to open a docket in a new court for a case that is under active review in two other courts, federal and state.

The DPS decision somewhat confirms my belief that the NEC filing in Supreme Court was more for NEC publicity than to win the case.  Indeed, looking at the DPS filing, I realize that if DPS had joined NEC in this filing, DPS would have been undercutting the authority of the Public Service Board to make a ruling on the new docket for the Certificate of Public Good.  In retrospect, I realize...of course DPS wouldn't join NEC in this one.

I am talking about 20-20 hindsight here.  A few days ago, I thought DPS would join NEC in the Supreme Court filing, since that has been DPS's reaction in the recent past: "NEC is suing--let's join!"

Pat Parentau and I agreed with each other on the radio show a week ago: this filing will almost certainly be dismissed by the Vermont Supreme Court.  Looks like DPS came to a similar conclusion.

Howard Shaffer Post at ANS Nuclear Cafe:

Howard Shaffer has a great post  ANS Nuclear Cafe today: politics, lawsuits, and trials. Vermont Weather Gets Colder.  Vermont Yankee Politics Continue Hot.  I encourage you to read it.

The Very Latest Lawsuit: Opponents Will Probably Lose

The Short Version--Radio Interview

On Wednesday, I was interviewed by Pat Bradley of WAMC about the latest lawsuit related to Vermont Yankee. An intervenor filed suit in Vermont Supreme Court to shut down Vermont Yankee. The suit won't get anywhere, in my opinion.

You can listen to the three minute radio clip here.  The clip includes:

• Ray Shadis of New England Coalition saying why they filed suit in Vermont Supreme Court. 
• My interview saying why the suit won't get anywhere.
• Pat Parentau of Vermont Law School saying why the suit won't get anywhere.  

Bradley packs a lot of information into a short segment! It is well worth listening IMO.

Note: Shadis is also the man who debated Howard Shaffer on Thursday, as reported in this blog.
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The Long Version -- Including Federal and State Legal Cases and Time Line

Still, it's a short radio segment, so here's the background. Sorry it is so lengthy, but it just is.  Legal cases, you know.  They go on for years.

Spring--Federal Court--Judge Murtha: In January and March of this year, Judge Murtha of the Federal Court in Brattleboro issued two rulings about Vermont Yankee.  I have both of the rulings (and a lot of other briefs) posted on my Energy Education Project page Dockets in Entergy Appeal. The significant one for this new court case is the March ruling, which contains this ruling as the final words:

The Attorney General has represented to the Court, however, that its position is that “Entergy may continue to operate under the terms of its current CPGs while its CPG petition remains pending at the Board” and does not take the position Vermont Yankee must close after March 21, 2012, while its petition for a renewed CPG remains pending before the Public Service Board. (Doc. 202 at 11, 15.) Given this representation, the Court does not see the need to consider at this time Entergy’s request for an injunction pending appeal barring the enforcement of subsection 6522(c)(5).

Therefore, Defendants are enjoined, pending the appeal of the Court’s final judgment and Merits Decision to the Second Circuit, from addressing the storage of spent fuel under the authority of Vermont Statutes Annotated, title 10, subsection 6522(c)(2) and from bringing an enforcement action, or taking other action, to enforce subsection 6522(c)(2) to compel Vermont Yankee to shut down because the “cumulative total amount of spent fuel stored at Vermont Yankee” exceeds “the amount derived from the operation of the facility up to, but not beyond, March 21, 2012.”

In other words:

• The state Attorney General (AG) has stated that the state is not planning to shut down Vermont Yankee while appeals in court are pending.  Since the AG made this statement, the federal court will not rule on the issue.
• The federal court ruled that the state cannot shut down Vermont Yankee based on spent fuel storage--while appeals in court are pending. 

These words are legalese, but they are pretty clear.  Business continues while the court cases go on.  This is the way lawsuits are usually handled, because shutting the plant down would be the same as deciding the court case without a hearing. It wouldn't be due process.

November--Public Service Board--statement:  I also have relevant rulings from the Public Service Board on my Energy Education Project page PSB Docket 7862 filings. This page also contains a link to the PSB docket itself, now up at the PSB site.

Docket 7862 is the new docket under which the PSB will issue its ruling on the Certificate of Public Good for Vermont Yankee. The new PSB docket includes a complete timeline for their process, ending with "Reply briefs due" in late August, 2013.

(Why did the PSB need this new docket? Older dockets on the issue, such as docket 7440, were contaminated with radiological safety testimony.  So the PSB opened a new docket 7862. You can read about the PSB decision for a new docket on a previous blog post.)

Meanwhile, this spring, shortly after the Murtha ruling, Entergy asked the Public Service Board to take some things out their consideration.  Entergy said that these issues were impacted by the court cases.

On November 29, the Public Service Board issued a "strongly worded" statement that it was leaving this material in the record for consideration.  You can link to the complete PSB Statement on the Energy Education Project website. (And here's the Vermont Digger article about the statement.) 

This PSB statement was both strongly-worded and against Entergy.  However, it was also "narrow."  (That's the PSB word.)  The statement was part of the process, not a summary judgment.  On the top of page 3, introducing the rest of the 27-page document, the PSB wrote as follows:

We want to make clear — this Order is narrow. We address only Entergy VY's request for relief under Rule 60(b). Because we do not accept Entergy's arguments concerning foreseeability, which were the basis for its motion, we deny the request and do not reach any conclusions concerning the merits of modifying or extending Entergy VY's obligations under existing Orders and CPGs.
Entergy VY filed its motion in Dockets 6545 and 7082. However, in many respects, Entergy VY's motion implicitly challenges the Board's March 19 Order in Docket 7440. Because this Order of necessity responds to those challenges, the Board is also issuing this Order in Docket 7440.

In other words, the Board even issued this strong statement on the old docket, Docket 7440 (see docket listing on the first page of the statement).  However, the Board had opened a new docket, docket 7862, to decide on the Certificate of Public Good.  Issuing this statement on an old docket certainly seems pretty "narrow" to me.

Actually, let's be honest here. I don't understand why the PSB issued this statement on the old docket, 7440. They will issue the CPG on the new docket, 7862. (Yes. I am not a lawyer.)

However, it is clear to even a non-lawyer that this PSB statement is part of the process, not a direct decision by the Board about the Certificate of Public Good. Such a decision will be issued on the new docket, Docket 7862, according to the PSB timeline published on that docket.

Latest Lawsuit

Newspaper press

The New England Coalition (NEC)  is a party to both PSB dockets.  That is, they are on the docket as intervenors in the cases.

However, NEC recently chose to bring suit in Vermont Supreme Court to ask the Supreme Court to close down Vermont Yankee, based on parts of the PSB statement of November 29. As usual, the Vermont Department of Public Service is thinking of joining NEC in the suit.  Here's the Vermont Digger article on the lawsuit and the Department of Public Service.

In June, the Department of Public Service joined a NEC lawsuit against the Nuclear Regulatory Commission: they sued to require the NRC to rescind Vermont Yankee's license.  NEC and the Department lost that case.  They lost on the grounds that the lawsuit was not timely and in the wrong jurisdiction.

Guess what?  I expect the same outcome with this NEC lawsuit, whether or not the Department joins them.  NEC is expecting the state Supreme Court to hop in to the case-- at the same time that both the Public Service Board and the federal appeals court are considering various aspects of the case.  The New England Coalition expects the Vermont Supreme Court to say: "Step aside, you other courts!  This is MY business!"

Courts rarely work that way.  They don't step into other courts' process, though they do hear appeals, of course.

You would think that by now, the Coalition and the Department of Public Service would have figured out that this case is very unlikely to succeed.  Parentau and I said virtually the same thing on the radio segment.  In other words, thoughtful people on both sides of the controversy have concluded that it is not worth bringing this case to the Vermont Supreme Court at this time.

You would think the intervenor and Department of Public Service would understand how courts work and not waste money on this sort of thing.

Reporters or Courts?

My personal opinion is that that the people bringing the suit aren't dumb.  They don't care if they win, and they don't expect to win.  They want the publicity, and they are getting it.

Even this blog post is de facto part of their publicity.

Sigh.

Taking Time Off

I'm taking a few days off, dear readers!

Happy Hanukkah!

Hanukiah, from Wikipedia

Public Service Board Interactive TV

I went to the  Public Service Board's interactive TV hearing on Vermont Yankee last night.  I  attended the one near my home: the White River Junction studio.

There were twelve or thirteen studios involved in the meeting.  The meeting was about three hours long, and I stayed for the first two hours.  During the time I was there, there were about the same number of speakers in favor of Vermont Yankee as speaking against the plant.  Overall, however, there were more opponents present than supporters. There were many opponents in the Brattleboro studio, for example.  As the crowd thinned out and the night grew later, the balance of speakers probably tilted toward the opponents.

WCAX had a good short video on the hearing. WCAX.COM Local Vermont News, Weather and Sports-


Fox News and WPTZ also covered the story in short articles. I was interviewed this morning by another radio station.  I expect more coverage of the event will come later.

My Impression

I was most impressed by the pro-Vermont Yankee speakers.  As someone who is very concerned with air quality, especially NOX pollution, I appreciated the statements made by a man who spoke of growing up in Burlington Vermont when the electricity was supplied by a coal-fired plant.  He spoke of the bad health consequences due to this plant's air pollution.

I was least impressed by some of the opponents who said that Vermont Yankee just wasn't what they envisioned as Vermont.  They claimed that Vermont should be small farms and artisans and artists, and Vermont Yankee just doesn't fit in.  Several people spoke in terms of this bucolic image.  They ignore the part of Vermont that is Yankee ingenuity. Precision Valley? Did they ever hear of Precision Valley?  Springfield Vermont was such an important machine tool center that it was considered to have become an important bombing target during WWII.

They also ignore air quality, of course.

I don't have transcripts, but I hope to locate some of the testimony later, perhaps with the court reporter transcript.

After the weekend.

Public Service Board Hearings Tonight

Interactive TV Public Service Board hearings are tonight.  They start at 7 p.m., but come earlier to sign up to speak.  The Public Service Board is listening to the public about granting a Certificate of Public Good to Vermont Yankee for twenty years of operation.  Let your voice be heard!

Here is where the hearings will be held:



Bennington                Senior Citizens's Service Center, 124 Pleasant Street  
Brattleboro                 Brattleboro Union High School, 131 Fairground Road - Room 125
Johnson                      Johnson State College, Bentley Hall - Room 211
Lyndonville                 Lyndon State College, 1001 College Road
Middlebury                 Hannaford Career Center, 51 Charles Avenue - 2nd Floor
Montpelier                  Vermont Department of Labor, 5 Green Mountain Drive
Newport                       North Country Union High School, 209 Veterans Avenue
Randolph Center        Vermont Technical College, VIT Studio - Morrill Hall
Rutland                        Stafford Technical Center, 8 Stratton Road - Room 108
Springfield                   Howard Dean Education Center, 307 South Street - 2nd Floor
St. Albans                     Bellows Free Academy, 4 Hospital Drive
White River Jct.           Community College of Vermont, 145 Billings Farm Road
Williston                       Blair Park, 451 Lawrence Place

Here's a link to the docket (Docket 7862) at the Public Service Board web site.

And here is a link to my earlier blog post on the hearings, with further information.

The most recent blog posts on this blog are statements in favor of Vermont Yankee...look at them to get ideas of what you might want to say!

See you tonight!

Over 600 Families: Cheryl Twarog Guest Post

Cheryl Twarog

My name is Cheryl Twarog, and I’m proud to say that my husband works at Vermont Yankee.  At Vermont Yankee there are 620 of the most dedicated, hard-working, highly trained individuals you’ll ever meet.  But there’s another chapter in this story that often goes untold.  That’s the story of the Vermont Yankee families:  the moms & dads, husbands & wives, sons & daughters of the employees.

At Vermont Yankee we are 620 families strong.

• That’s 620 families that count on the affordable health insurance that Vermont Yankee provides.
• That’s 620 families that rely on the $65 million in wages paid each year.
• That’s 620 families that worry that we will have to put our homes on the market, find another job in this tough economy, or move our children from the only schools they’ve ever known.
• And that’s 620 families that are holding our breath hoping that you will agree that it’s for the public good that Vermont Yankee be given a certificate for continued operations.

My family is one of the Vermont Yankee families, and we realize just how much we have to lose if Vermont Yankee closes prematurely.  My husband, John, has worked and trained at Vermont Yankee for almost 14 years.  His skills are highly specialized and wouldn’t easily translate to other jobs in the area, making it necessary to pack up our family and move.  There is much that we would miss:
Such as the way the lives of everyone in our family have been enriched by our time spent volunteering for local non-profit organizations.

Or the many opportunities our boys have been blessed with, many of which are unique to the area…

• Like the Keene State Orchestra and Keene Chamber Orchestra welcoming in our 12 year old son, Cam, who lives and breathes the violin.
• Or the highly regarded service organization that has allowed our 15 year old son, Evan, to develop and demonstrate leadership skills, along with his compassion for others. 

Both boys have ambitious goals for their futures.

The simple truth is that much of this is possible because of Vermont Yankee, and our lives would look dramatically different if VY were to close prematurely.  As you work to make your decision I hope you’ll remember that there are 620 families just like ours, who depend on the continued operation of Vermont Yankee.

Thank you for being here tonight and giving us the chance for our  voices to be heard.

Cheryl Twarog and her family made these buttons
You can see many people wearing them at the meeting
(Only some of the buttons had the red background..mostly they were black)

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This is the 17th in a series of posts which share statements made in favor of Vermont Yankee at the Public Service Board hearing on November 7, 2012.

At the hearing, Cheryl spoke directly after Evan spoke, and started her statement with a cheerful: "That's my boy!"

Cheryl Twarog also wrote a guest post on this blog:  When Did Nuclear Become a Four Letter Word?

Vital for the Region and My Family, A Teen-Agers View of Vermont Yankee: Guest Post by Evan Twarog

Evan Twarog
See note about the picture  (note near the end of the post)

My name is Evan Twarog. I am a sophomore at Keene High School, and have lived in this region for more than 13 years while my dad has worked at Vermont Yankee. In that time, I have grown to love the region, and couldn’t have imagined growing up anywhere else. Each year, I play two school sports, and I am a proud member of the Keene Rotary Interact Club.

As I’ve seen the legal battle pan out over my family’s primary income source, I’ve learned just how vital Vermont Yankee is to our community. Each year, the nuclear energy facility provides local charities and non-profits with hundreds of thousands of dollars in funding which helps ensure mouths go fed, athletes have gear to play in, and disabled citizens are taken care of. My father is the president of one of those organizations. For almost 14 years, he has worked at the facility and has risen to the position of Shift Manager. In the time he’s worked there, my confidence in Entergy and its employees has only increased.

At the facility, there is no higher priority than safety. In fact, he’s spent more time achieving and maintaining his reactor license than he spent in the four years it took him to get his Bachelor’s. In the past couple of years, as my interest in nuclear energy and VY has increased, I have delved into issues concerning the plant such as economics, safety and environmental issues, and this research has only made me more certain just how important VY is to Vermont’s economy and environment.

 In these rough economic times, it would be an enormous mistake to try to shut down Vermont Yankee and force the 600 families supported by the facility to move out the region. We have much to gain by keeping the facility operating, and much to lose by shutting it down. Thank you.


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This is the 16th in a series of posts which share statements made in favor of Vermont Yankee at the Public Service Board hearing on November 7, 2012.

Evan Twarog wrote an earlier post on this blog: A Teen's View of Vermont Yankee.

A short note about the picture.  People were asked to line up so that they could get to the microphone quickly.  In this picture, you can see Cheryl Twarog standing just behind Evan, ready for her chance to speak.  Between them, sitting down, is Peter Lothes, who also spoke for the plant.  Just to Evan's left, also in an aisle seat, is a man who identified himself as Brother Toby from a Buddhist temple. This man was quoted in the Reformer.  Not surprisingly, he spoke against the plant and against all nuclear energy.