The Public Service Board Rewrites History

Pressing Control-H?

A petulant Board says Entergy is not a fair partner.

In granting the Certificate of Public Good (CPG) for Vermont Yankee to operate for a final year, the Public Service Board (PSB) stressed that Entergy had not been a "fair partner" to Vermont.  I considered the Board's assertions misleading and petulant.

My recent post on this subject was PSB and the Certificate: Powerless and Petulant. I ended that post with a question: "Well, did the Board have good reason to believe Entergy was not a fair partner?  Or were they just being petulant, as I claim?"  In this post, I begin to answer that question.

Let's start with the Board's rewrite of history.

As usual, here's a link to the Board's order approving the Vermont Yankee CPG.  http://psb.vermont.gov/sites/psb/files/orders/2014/2014-03/7862%20Final%20Order.pdf 

Rewriting History

The Board is made up of lawyers who were not under oath ("the whole truth") on a witness stand.  They were writing an opinion. Without an oath to tell the truth and the whole truth, they could omit important history from their opinion.  And they did.

If you asked an average Vermonter about Vermont Yankee's history, he would probably say something like: "Well, the legislature voted against the plant but then that vote was overturned by the court."

The PSB chose to forget this part of the history.

What the PSB mentioned

Let's look at page 28-29 of the ruling. This is extracted from the rulings history-chronology which is a background to this order.  I will summarize a few items, quote a few items (in italics). You can read the rest if you follow the link to the ruling. 

Item 6: 2002, Board approves sale of plant to Entergy
Items 7 and 8: 2006, Board approves construction of Dry Cask Storage and Power Uprate
Item 9: 2011, Entergy receives a license extension from the Nuclear Regulatory Commission.

10. On March 3, 2008, Entergy VY filed a petition with the Board seeking authority to continue operation of the VY Station for an additional 20 years through March 21, 2032. Docket 7440, Petition of 3/3/08 at 2.55

11. On January 19, 2012, the United States District Court for the District of Vermont issued a decision holding that provisions of Act 160, codified at 30 V.S.A. § 248(e)(2), were preempted by the federal Atomic Energy Act, and enjoined the enforcement of these provisions. Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 838 F. Supp. 2d 183, 243 (D. Vt. 2012),

What the PSB forgot to mention

Did you notice anything missing? The legislature passed Act 160 in 2006 requiring the legislature to allow the PSB to issue a CPG.  The Board didn't mention that.

Act 160 was a clear change to the contract that Entergy signed when they bought the plant. That contract said that the PSB had to consider whether the plant deserved a CPG.  The original contract said nothing about the legislature.  For information on this, I recommend John McClaughry's post: Can Entergy Trust the State?

The legislature took over the decision about issuing a CPG to the plant (by passing Act 160 in 2006).   The legislature discussed, at great length, the plant's nuclear safety. However, nuclear safety is a matter of federal jurisdiction, and the legislature knew this. The legislature used what Cavan Stone calls the Control-H defense. Basically, the legislature decided: "Let's use another word for safety."  We will hit Control-H and we will change that word.  See Cavan Stone's guest post The State and the Control-H Defense.

Having attempted to use other words for "safety," the Vermont Senate held a vote in 2010. This vote denied a CPG to  Vermont Yankee-- by refusing to let the PSB rule on a CPG.  Essentially, this vote ordered the plant to shut down in 2012.

Entergy then sued the state,  because the legislature had acted on the basis of nuclear safety. It is a federal prerogative to regulate nuclear safety. Entergy won that lawsuit. The state appealed, and Entergy won that appeal. This was embarrassing for the legislature, and maybe embarrassing for the PSB.

What the PSB was embarrassed to mention

I can read what the PSB wrote, but why they wrote it is forever a mystery.  Here's my opinion.

Governor Peter Shumlin
Led the Senate to vote against VY
(before he was Governor)

Neither the 2006 law nor the 2010 vote are mentioned in the PSB history.  Why not?  Is it because these show that the state of Vermont was not being a "fair partner"?  Is it perhaps because the legislature took the PSB's power away from it?  The legislature said: "You can't release your findings, PSB,  unless we legislators allow you to do so." To write about this, the PSB would have to admit another example of being powerless.  Was that the reason they didn't mention the vote?  Or was it that Entergy won the lawsuits, hands-down, and the PSB is basically lawyers who ended up on the wrong side?

Was the PSB just plain embarrassed at the whole history?

Who knows?  As I say, the PSB didn't write this opinion under an oath to tell the whole truth, so they wrote what they wanted to write. They left out the part of the history that most Vermonters would mention if asked about the history of Vermont Yankee.

I thought I would mention that history.

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Note: I have plans for more posts about the PSB ruling.

PSB and the Certificate: Powerless and Petulant

Spillway at HQ dam
Vermont's source of electricity

On March 28, the Public Service Board (PSB) issued a Certificate of Public Good (CPG) for the final year of operation of Vermont Yankee. I quickly posted a preliminary review of the ruling:  Board Issues CPG to Vermont Yankee through 2014.  In that post, I noted that I had not yet read the entire 97 page document.

So now I have read it.  I think it was an appalling document for a "quasi-judicial" body to issue.  Feel free to read the nearly-100-pages yourself, especially if you want to go through a document page by page, rebutting half the sentences.

http://psb.vermont.gov/sites/psb/files/orders/2014/2014-03/7862%20Final%20Order.pdf

The Board Admits to Being Powerless

In August 2013, when Entergy announced it would close Vermont Yankee, many people noticed that the Public Service Board had just lost most of its power over the plant.

Opponents urged the PSB to put as many constraints as possible on the final certificate because it would be the state's last chance to regulate the plant.   Similarly, Vermont Business Magazine wrote that decommissioning of VY was a federal issue, and the state might have very little to say about it. This editorial suggested that a willingness to deal with Entergy in earlier days might have led to a better outcome about decommissioning. (My blog post Looking Back Toward Decommissioning covers this.)

Time went by, and in December 2013, the state and Entergy reached an agreement about the final year of Vermont Yankee's operation and about some aspects of decommissioning.  The agreement was  embodied in the Settlement Agreement and the MOU (Memorandum of Understanding). The PSB needed to accept or reject this agreement by the end of March, or the agreement would no longer be valid. (Reasons the Public Service Board  Should Approve the CPG for Vermont Yankee.)

On March 29, the PSB ruled. In its ruling,  the PSB admitted it was pretty much powerless to change the end date of plant operation, anyway. On page 4 of the ruling:  The value of these benefits [benefits of accepting the Settlement and MOU] is complemented by the short duration of the permission we are granting Entergy VY. This limited period of time is likely not longer than the interval of time we would have allowed Entergy VY for winding up its operations had we decided, in the absence of the MOU, to deny the Company's request to extend its time for operating in Vermont.

In other words, the PSB would have to grant VY about the same time to wind up operations whether the PSB ruled for or against the MOU.  So the PSB figured they might as well rule for the MOU, because the MOU included cash benefits to the state.

The MOU specified many payments from Entergy to various funds in the state of Vermont. Shortly after the Board issued the CPG, the first of these payments from Entergy arrived: two million dollars for community development to the state Agency of Commerce and Community Development.

Powerlessness Turns the Board Petulant

In my opinion, the ruling has many examples of petulance. My paraphrase of the ruling: "They ran that plant and they made power and they paid their taxes and everything....but they did us wrong.  They didn't play fair.  They are not fair partners. They didn't always give us the right information.  No they didn't.  Not every time. Okay, we know, they DID make power, but so what, huh?"

As Will Darlymple at Nuclear Engineering International said: this order was grudging at best, scathing at worst. In contrast, plant opponents were delighted with the tone of the order, as you can read in an opponent op-ed in The Commons: What was surprising is how loathe the Public Service Board was to grant Entergy “fair partner” status, as has been widely reported in the press.

The ruling is amazingly repetitive on the theme that Entergy is not a "fair partner" for Vermont.

Page 5 refers to the  The Company's sustained record of misconduct has been troubling to observe over the years and has continued to trouble us as we determine whether to grant Entergy VY a license to operate. If Entergy VY were planning to operate the VY Station for another twenty years as originally requested, its track record may well have led us to find that ownership and operation would not promote the general good.

This focus on Entergy "misconduct" continues on pages 31 to 44. These pages explain that Entergy cannot be a Fair Partner to the state. The "Fair Partner" section is by far the longest section in the ruling, including (page 41) the statement that  This history is troubling and falls well below the level of conduct the Board expects of utilities authorized to conduct business in the State.

In other parts of the ruling, brief sections mention that Entergy paid taxes, made power reliably, gave the state Nuclear Engineer access to the plant, etc.  But the longest section is about "Entergy was not a fair partner."

Not a "Fair Partner" or a Petulant Board?

Well, did the Board have good reason to believe Entergy was not a fair partner?  Or were they just being petulant, as I claim?

The Board's reasons for saying that Entergy was"not a fair partner"  were basically wrong. Entergy was not perfect, but "not a fair partner" is an over-the-top judgement for the flaws that Entergy had. However, it will take at least one more blog post to show this. You can't answer 97 pages in a short blog post!

My follow-on posts are partially drafted.  But like the Board ruling, this present post is....long enough.

UPDATE:  Howard Shaffer has just posted a more complete assessment of the ruling at ANS Nuclear Cafe: A Pyrrhic Victory in Vermont for Nuclear Power?   I encourage you to read it!

Reasons the Public Service Board Should Approve the CPG for Vermont Yankee: Guest Post by Guy Page of VTEP

Five Reasons Why the Vermont Public Service Board Should Approve
the Certificate of Public Good for Vermont Yankee

A Settlement Agreement announced on December 23, 2013 by Gov. Peter Shumlin, Attorney General William Sorrell, the State of Vermont, and Entergy recommends that the Vermont Public Service Board (PSB) approve the Certificate of Public Good (CPG) for Vermont Yankee to continue to operate until the end of 2014. The plant’s continued operation through the year will help to ensure a smooth transition of Vermont Yankee to a closed, decommissioning power facility. Without approval of the CPG, the Settlement Agreement will likely be nullified. The following are five reasons why the PSB should approve the CPG by its deadline of March 31, 2014.

The proposed CPG…

1. Enjoys broad support and resolves major legal and economic quagmires

Both the State of Vermont and Entergy support the Settlement Agreement and the CPG. Without a CPG, the Vermont Yankee situation will revert to the pre-December 23 status of expensive legal wrangling, job uncertainty for plant employees, no cash for economic development or renewable power, and no agreement on decommissioning.

2. Prompts an accelerated decommissioning and enables enactment of a prompt, detailed decommissioning plan

The agreement establishes the potential for  a more prompt decommissioning and site restoration than would otherwise be required by federal law. Entergy commits to filing a site assessment by December 31, 2014 – many months sooner than required by federal law – and featuring evaluation of the costs of both SAFSTOR (extended) and DECON (more prompt) decommissioning.

3. Will release millions of dollars for site restoration

Within 30 days of the issuance of the CPG, Entergy has agreed to establish a separate site restoration trust fund with an initial deposit of $10 million.  This is the first installment of $25 million that will be provided by 2017.

4. Helps transition Vermont to a renewable energy future

Within 30 days of the issuance of the CPG, Entergy has agreed to contribute $5.2 million into the Vermont Clean Energy Development Fund, with half of this money earmarked for the benefit of Windham County.

5. Provides a boost for the economy

For each of the next five years – 2014, 2015, 2016, 2017, and 2018 – Entergy has agreed to pay $2 million per year to the State of Vermont to promote economic development in Windham County. By April 15, 2015, Entergy has agreed to make a $5 million tax payment to the State of Vermont.

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The Vermont Energy Partnership (www.vtep.org) is a diverse group of more than 90 business, labor, and community leaders committed to finding clean, affordable and reliable electricity solutions.  Its mission is to educate policy makers, the media, businesses, and the general public about why electricity is imperative for prosperity, and about the optimal solutions to preserve and expand our electricity network.  Entergy, owner of Vermont Yankee, is a member of the Vermont Energy Partnership.

Infographic from VTEP, used by permission.

Blog post by Guy Page of VTEP, who is a frequent guest blogger at this blog.

Meredith Angwin's earlier post on this subject is The Proposed Entergy Settlement is Good for Vermont.  

My Comment to the PSB in Support of Vermont Yankee

Opponents and supporters of Vermont Yankee
Court house, Brattleboro  Sept 27, 2011

There is still time to comment

The Vermont Public Service Board is still accepting comments in favor of granting a Certificate of Public Good for the last few months of Vermont Yankee's operation.  Here's the link for your comment:  http://psb.vermont.gov/docketsandprojects/public-comment?docket=7862


Meredith Angwin's Comment to the Public Service Board

I am a supporter of Vermont Yankee.

I remember standing on the streets of Brattleboro while the federal court case was underway.  I held up my "Vermont Yankee" sign and the opponents held up signs saying "I support Vermont."

In those days, it was "Vermont Yankee" versus "Vermont."

Vermont Yankee supporters on Sept 27, 2011

That was then and this is now.

Vermont and Vermont Yankee have come to an agreement. This agreement will provide an orderly shut-down of the plant, support for Windham County and plant employees, and an end to lawsuits.

Vermont and Vermont Yankee are on the same side now.

Please support the state agencies of Vermont AND the workers of Vermont Yankee. Grant a Certificate of Public Good based on the state agreement with Vermont Yankee.

Meredith Angwin

Wilder, Vermont

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This is one of a series of posts: people's comments to the Public Service Board in favor of granting a Certificate of Public Good (CPG) to Vermont Yankee for its final year of operation.

I hope these posts will inspire you to write YOUR  comment to the board. http://psb.vermont.gov/docketsandprojects/public-comment?docket=7862

For more information on the Public Service Board hearings and the Memorandum of Understanding, see the blog post Take Action: Comments to the Public Service Board.  It has many links to background information.

Yesterday's post was John McClaughry's excellent comment about whether Entergy could trust the state of Vermont.

Be Prompt and Positive with Vermont Yankee: Guest Post by Patty O'Donnell

Patty O'Donnell speaking to Public Service Board
November 2012

Prompt, positive Vermont Yankee decision benefits everyone

By Patricia O’Donnell, Chair
Vernon Board of Selectmen


For the sake of the residents of Vernon, I strongly encourage the Vermont Public Service Board (PSB) allow Vermont Yankee and the State of Vermont to come to an equitable agreement, and issue a clean Certificate of Public Good (CPG) at the end of this year guaranteeing Vermont Yankee’s continued operation until late 2014. An unburdened CPG will provide much-needed and much-warranted economic and environmental certainty and will give all stakeholders the unobstructed opportunity to plan for the future.

As an elected representative of Vernon – a town now facing the loss of its largest employer and taxpayer, significant budget cuts, and mounting questions about its financial footing – I hope the Public Service Board will at least grant us this gift of clarity as we continue the difficult task of planning for life without Vermont Yankee.

Vernon and its residents deserve to know whether Vermont Yankee will continue to operate through next year. A prompt decision by the PSB will allow us to clearly anticipate and navigate the road through 2014 and beyond, and help to ease the financial blow to our school system, our police departments and other local services resulting from the loss of this crucial revenue source.

It is equally important for the Public Service Board to pursue a course that is both fair and equitable and looks to mitigate any further harm. Assigning a tangle of conditions or refusing outright to grant the CPG will only add insult to injury for the people of Vernon – and a contentious ruling will only hinder our efforts to recover from the loss of Vermont Yankee.

For nearly four decades, the town of Vernon, as the host community for this important economic and energy generator, has been integral to Vermont’s strength and sustainability, contributing billions of dollars in tax revenues, billions more in economic benefits, and supporting thousands of jobs statewide.

It is crucial that the PSB act expeditiously and fairly in issuing a decision, and provide some semblance of certainty as we continue through this difficult transition period. The residents of Vernon, indeed all Vermonters, deserve the security of knowing what the future holds.

Note: O'Donnell wrote this before the recent agreement between Entergy and the state.  However, it is still relevant.  The Public Service Board has not ruled yet.

A State of Extortion: Conditions for a Vermont Yankee Certificate

John McClaughry
at a dinner in his honor

The Prediction: John McClaughry

Shortly after Entergy announced it would close Vermont Yankee in 2014, Governor Peter Shumlin decided that people should work together, not fight with each other.  Specifically, Shumlin said that his administration would “use this opportunity to build better relations with Entergy.”

John McClaughry doubted that statement.  McClaughry is one of the founders of the Ethan Allen Institute, and he predicted that better relations between Entergy and Shumlin were not going to happen.  Better relations weren't in the cards (to use a fortune-teller analogy).   Governor Shumlin would continue to behave the way Governor Shumlin behaves.  

In early September, a few days after Shumlin's announcement, McClaughry wrote an op-ed which was published many places in Vermont:  Governor Shumlin's Unlikely Olive Branch to Entergy. Here's the quote with the prediction:

With this long, outspoken, and unbroken record of opposition to the nuclear plant and its corporate owner, can we expect Peter Shumlin to now seek “better relations” with Entergy? It’s far more likely that he, his regulators and lawyers, and his legislative friends will spend the rest of his time in the Governor’s office extorting every last dime out of Entergy to fund their own pet projects, and when that is pushed as far as it can go, forcing Entergy to spend as much as possible through more of the “cumulative regulation” that Entergy says contributed to its decision to close the plant.

The Pondering: State Weighs Conditions for Entergy

When Entergy announced it was closing the plant, the state "weighed the conditions" they would put

Commissioner Recchia
from DPS site

on Vermont Yankee's continued operation for a final year. 

The Public Service Board was still considering a Certificate of Public Good (CPG) for Vermont Yankee when Entergy announced it was closing the plant.  Entergy quickly filed an amended petition with the Board, asking for a CPG for through the end of 2014, instead of through 2032.  Under Shumlin's administration, the Department of Public Service (DPS) had opposed the 20-year extension.  Would they also oppose a one-year extension? 

When Entergy filed for a one-year extension,  Chris Recchia, commissioner of the department, said the department was considering its options about the one-year extension. Here's a quote from Andrew Stein's article in Vermont Digger. 

“The options are to support it (the one-year certificate) with conditions or oppose it unless there are conditions,” he (Recchia) said.

The Prediction Fulfilled: Also Known As The Shake-Down

First, we have to admit that the state learned some very expensive lessons in various courts.  The DPS considered recommending a time-table for decommissioning, or recommending how the plant should handle spent fuel.  But then they thought better of it. Recchia noted that these areas fall under the purview of the Nuclear Regulatory Commission.  

“We felt we needed to focus on areas where we have jurisdiction,” Recchia said.  (From Oct 25 article Terri Hallenbeck in the Burlington Free Press.)

If DPS tried to regulate safety, they could lose in court. Gathering money from Entergy seemed a more reasonable tactic.  DPS recommended that the Public Service Board should extract money from the plant in return for a fourteen month CPG.  Specfically, DPS recommend that Entergy must

• Put $60 million dollars in a separate trust fund for decommissioning within 21 days of receiving a certificate of public good from the state (Anne Galloway article in Vermont Digger)
• Put $4.65 million dollars into a fund "for the state to disburse" for dislocated worker assistance (Terri Hallenbeck  article). 

Another justification given for Entergy contributing $4.65 million to the state is that the state will lose its "generation tax" revenues when Vermont Yankee stops generating power.  As Galloway wrote in Vermont Digger:

"Once the plant closes, that source of state revenue (the generation tax) will disappear. Recchia says Entergy should be required to continue to make some kind of payment to the state to make up for the economic impact of the sudden, unplanned shutdown."

In other words, McClaughry predicted the situation accurately.  The scenario (extract money and attempt to make decommissioning as expensive as possible) is unfolding exactly as McClaughry predicted it would unfold.

Note from blogger: "Sudden unplanned shutdown"?  Huh?

Second note from blogger:  Will these "generation tax" substitutes actually be used for Vermont Yankee employee assistance?  Your guess is as good as mine....

The Good News and the Bad News


Good News:  This is the state's final chance to extract money. In Andrew Stein's article in Vermont Digger (State Weighs What Conditions to Place on Vermont Yankee Closing) Stein quotes Ray Shadis, a long-time plant opponent.

"It is unclear at this point if Entergy VY, if it closes in 2014, will ever have to appear before the VPSB (Vermont Public Service Board), or for that matter, any state regulatory body ever again,” he (Shadis) wrote to the board. “Chopping the proposed period of extended operation really appears to narrow that possibility and proportionally heightens the need for the VPSB and the parties to ‘get it right.’”

Bad News:  It's not really bad news. More like "major uncertainty."  If the Public Service Board puts tens-of-millions-of-dollars of conditions on a certificate of public good, and Entergy had planned to operate the plant only for a few more months--what will Entergy do?  

It may not be worthwhile for Entergy to litigate in the hopes of merely several months operation.  Also, if Entergy doesn't sign the new CPG, they don't have to abide by its multi-million dollar conditions.  In other words, Entergy might quite reasonably decide not to sign, not to litigate, and simply to close the plant a few months earlier. 

I hope this would not happen, but it could. 

"Building better relations with Entergy" indeed!

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You can link to the complete, 50-page DPS filing from the Vermont Digger article.  I link to it here for convenience. I am always grateful when Vermont Digger links to the original documents. 

John McClaughry, the man who made the prediction, is vice president of the Ethan Allen Institute (www.ethanallen.org). The Energy Education Project (directed by Meredith Angwin) is part of the Ethan Allen Institute.

Vermont Yankee Gets Permission to Install Diesel

Late yesterday, the Vermont Public Service Board (PSB) issued a Certificate of Public Good for the diesel generator at Vermont Yankee.  I link to their order issuing the certificate here.  

It's a 42 page order, fairly evenly divided between the history of the docket, boilerplate, and snark.  

The snarky part is their insistence that they are issuing this order because Vermont Yankee needs the diesel generator even if it were "in compliance" with their previous orders and was shut down.  (They do not actually have such a previous order...it is just implied within other orders.  They could have issued an order to shut down, but then they would find themselves in court...) The last two pages of this order, by one of the commissioners, is definitely worth reading. The commissioner blames Vermont Yankee for the delay in issuing the order!  Amusing, in a sort of sick way. (I am a blogger.  I have opinions.) 

Still, the whole thing was a win-win.  And the winners were:

• Vermont Yankee got permission to put in their diesel generator. 
• The Public Service Board had an opportunity to write about "their previous  orders," which they love to reference.  Since an order to shut the plant does not exist, they can't quote the actual order, but that's nit-picking. 
• The Public Service Board avoided federal court judgment about the diesels.  With this PSB ruling, the on-going federal court case became moot. The federal court will not rule against the PSB on the basis of pre-emption about nuclear safety equipment, because the case is moot. Therefore, the PSB can consider their honor intact.  Also, if the federal court had ruled against the PSB on pre-emption about the diesels, the state would look pretty bad in terms of  the main federal case about pre-emption

In short, the PSB dodged a major federal court bullet by issuing the certificate, and everybody wins. 

Have a great weekend!

Diesel Case in Federal Court

Yesterday, Vermont Yankee appeared in federal court in order to get permission to put in a safety diesel.  The Public Service Board has been delaying even considering the diesel docket.  They delayed for months and wrote all sorts of complex opinions about whether they would consider the diesel docket: "compliance with other orders" and so forth.

Yes, the whole court case is a bit ridiculous...as I said in my blog post yesterday:   In my opinion, these court cases could have been avoided if the Public Service Board just knew how to spell "pre-empted." Emergency diesels are clearly safety equipment, and adding safety equipment is clearly the business of the Nuclear Regulatory Commission, not the state.  The state cannot regulate nuclear safety: it's pre-empted.

Summary of the Arguments in Court

Vermont Yankee arguments: Vermont Yankee argued that the state had no business interfering with nuclear safety.

State arguments: The state argued that Vermont Yankee could put in the diesel more quickly than they claimed they could put it in.  Therefore, there was no reason for them to be in court: they could  wait for the PSB to rule.

• The judge rejected this argument: what if the PSB rules the other way? We might as well hear the case now, actually. (from VPR report on the hearing)
• Cheryl Hanna (Vermont Law Professor) reported that the state spent two hours examining an Entergy witness about project scheduling for the diesel. She noted that this whole line of questioning was somewhat off the point. (from Vermont Digger report and WCAX video on the hearing)

Various intervenors: They now claim that Vermont Yankee is wasting court time, since the PSB is sure to rule in their favor anyway.  Of course, these intervenors themselves bring lawsuit after lawsuit against Vermont Yankee. (from VPR report on the hearing).


My Opinion:

Snark opinion: Funny how the PSB issued threatening statements and ambiguous statements ("not in compliance with other orders" and "this order is narrow" and so forth) until Vermont Yankee sued.

Sad opinion: Cheryl Hanna of Vermont Law School talks about how polarized and angry the entire situation is, and how there are five on-going law suits about Vermont Yankee. (WCAX video clip below).   It didn't have to be this way.  It really didn't.

Governor Peter Shumlin vowed to close Vermont Yankee. In my opinion, he did this in order to retain his support with the Progressive Party. His political ambitions led pretty directly to all this hatred.  Yes, there were people opposed to nuclear power and Vermont Yankee before Shumlin ran for office, but Shumlin made it much worse.  He marginalized the people at Vermont Yankee (for example, his deliberate and planned use of the term "Entergy Louisiana") and he aimed at costing them their jobs. They are fighting back. There's a lot of anger there, and it didn't have to be this way.  (I encourage you to watch the Cheryl Hanna video below and listen to what she says about polarization.)



  WCAX.COM Local Vermont News, Weather and Sports-

The PSB, the Diesels and Sherlock Holmes

Bulldog asleep

Waiting for the Public Service Board

About a week ago, on May 21, I blogged about the fact that Vermont Yankee needs another back-up diesel, and the Vermont Public Service Board (PSB) has been dragging its feet about giving permission to install that diesel.  Entergy has an NRC deadline to install the diesel, and therefore, Entergy sued the PSB in federal court.  The court hearing is scheduled for June 4, which is Tuesday, and coming up fast.

By denying the diesel permit, the PSB is interfering with nuclear safety, an area of federal jurisdiction. My post was A Court Case With A Deadline: The Black Start Diesels. 

That post included the "Breaking News" that the PSB hearing officer for the diesel docket had recommended that PSB grant the permit for the diesel.  The Department of Public Service also supports granting the permit for the diesel.  Here's a link to the Vermont Digger article by Andrew Stein on these recommendations that the PSB approve the diesel.

However, these were only recommendations. The PSB itself did not rule on this matter. The Vermont Digger article quoted Jim Sinclair of Entergy: “While we appreciate and agree with the hearing officer’s recommendation, we remain uncertain as to when the Board will rule,” he said. “Therefore, we will have to determine how this may affect the federal court hearing.”

Will the PSB Rule? Time Passes

The Vermont Digger article appeared on May 20, and the hearing is June 4.  I'll be blunt.  I was waiting for the PSB to make a statement.  I thought PSB might say:

•  "We agree with our hearing officer and here's your diesel permit. " 

or

• "To heck with our hearing officer's recommendations. We don't hand out diesel permits to outfits like you, and we'll see you in court."

But, so far, nothing has happened.  At this point, it looks like the PSB is happy to ignore the hearing officer and the Department of Public Service.  The court date is approaching fast.

I waited. I wanted to write a blog post about this, as soon as there was some news.

Sherlock Holmes and Me

Then I realized that the lack of news--is also news! Non-action is also information.

To quote Sherlock Holmes:

"You consider that to be important?" he [Inspector Gregory] asked.
 "Exceedingly so."
 "Is there any point to which you would wish to draw my attention?"
 "To the curious incident of the dog in the night-time."
 "The dog did nothing in the night-time."
 "That was the curious incident," remarked Sherlock Holmes.

The Memoirs of Sherlock Holmes (1893) : Silver Blaze

In the Holmes case, the fact the "dog did nothing in the night-time" means that a stranger did not commit the crime.  If a stranger had been there, the dog would have barked. Holmes concluded that the crime was an inside job.

To me, the fact that the PSB has done nothing means that they are happy to go to court June 4, even though (IMHO) they are pretty sure to lose on this one. In my opinion, this shows they are heavily influenced by politics.  I think that the more often the PSB is in court, the more political credibility they think they have with the Shumlin administration and the Vermont legislature: We TRIED to shut that plant down! We really did.  They sued us all the time, but we kept trying. 

In my opinion, this non-action on the hearing officer's statement shows that political credibility is what matters to the PSB.  The PSB is supposed to be a non-partisan board, but this incident of the Dog in the Nighttime indicates something else. The Public Service Board is ignoring its own hearing officer and the State's Department of Public Service. It seems happy to be dragged into court.

A political agenda is the best explanation I can come up with.  I welcome readers' comments with other explanations.

Will Davis and Me

And here's a comment to start you off!  Will Davis hosted the most recent nuclear blog Carnival at his Atomic Power Review site.  The Carnival included a link to my post about the diesels, and Will Davis had this to say about it:

Will Davis

Atomic Power Review Note:  Regarding the Yes Vermont Yankee post linked and described above...  Just how many times in this post-Fukushima world would one EVER expect to find any group, anywhere, that could possibly justify campaigning AGAINST adding a back up diesel generator at a nuclear plant site?

I think that says it all.  I hope to receive more comments, but it will be hard to beat Davis's pithy comment.

And Yet Another Lawsuit

In related news, a group of intervenors just sued the PSB in Vermont Supreme Court, claiming the PSB should "enforce their own orders" and close the plant.  Here's the May 25 article by Bob Audette in the Brattleboro Reformer on that suit:  Groups Ask Vermont Court to Affirm PSB Rulings on VY.

This suit bears an uncanny resemblance to a lawsuit the Vermont Supreme Court turned down in March of this year.  Here's the Andrew Stein article in Vermont Digger  on March 28: Vermont Supreme Court Denies New England Coalition's Petition to Close Vermont Yankee.  Or, as I blogged on March 28 in Court Won't Close Plant During PSB Hearings. Since the Vermont Yankee matter is active in both federal court and the PSB, the Vermont Supreme Court is unlikely to get involved.  Courts don't like to step on each other's toes.

Frankly, I don't get this intervenor latest suit.  It looks frivolous to me: it looks like the same contentions as the lawsuit in March.  Why are they doing this? However, I freely admit I am not a lawyer, so there may be a reason. Once again, comments are welcome.

Vermont Supreme Court Won't Close Plant During PSB Hearings

Vermont Supreme Court 

Request: Shut It Down NOW, Your Honors!

In January, an intervenor went before the Vermont Supreme Court, asking that court to shut down Vermont Yankee immediately.   I blogged about it at the time:  Unique Request: Opponent Wants Vermont Supreme Court to Rule Before PSB Rules. 

The Supreme Court hears appeals after lower courts or judicial bodies have ruled. In this case, the intervenor asked the Supreme Court to rule while a lower-court (the Public Service Board, a quasi-judicial body) was still holding hearings on the same subject. That was unique!

 I predicted that the case would be dismissed because courts don't like to step on the processes of other courts.

Answer: Case Dismissed, Please Go Away, You're Bothering Us

Yesterday, the Vermont Supreme Court denied the petition to close Vermont Yankee.  Andrew Stein at Vermont Digger wrote about it today: Vermont Supreme Court denies New England Coalition's petition to close Vermont Yankee.   A quote from the ruling:

NEC fails to demonstrate, as predicates for the injunctive relief sought, that it exhausted its administrative remedies and that it has no adequate legal remedy.  ....  NEC has not requested, nor has the Board issued, an order directing Entergy to cease operating Vermont Yankee on the grounds advanced by NEC here.  Nor is it established that Board enforcement of Condition 8, if applied for, would necessarily be covered by the federal injunction enjoining enforcement of Act 160.....

Dismissed

In other words: "Why are you asking us, the Supreme Court, to rule about this?  There's a perfectly valid legal process underway, and we see no reason to derail it."

It Was Only Procedural

The attorney for the intervenor seems happy that the Supreme Court ruled only for procedural reasons.  According to the Digger article: Jared Margolis said: "The substantive issue that we brought before the Supreme Court has not been determined to be invalid”

Of course the Supreme Court would rule for procedural reasons.  Courts try avoid stepping on each other's toes!

In my opinion, the intervenor petition was a waste of taxpayer money (court costs) and simply a way to harass Vermont Yankee.

As I included in an earlier blog post, here's a minute-and-a-half WPTZ video of the January Supreme Court hearing that led to the decision yesterday.

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. 

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.
------

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.

High Level Waste and Legal Wrangles at Vermont Yankee

High Level Waste is a (legal) Question At Vermont Yankee

Low level waste is a success story, but high level waste is a legal question at Vermont Yankee.  High level waste storage has become a central issue as the federal court case begins the appeals process.

Spent Fuel as Pretext

In the past, the Vermont legislature attempted to shut down Vermont Yankee on several pretexts.  One pretext was that the original Memorandum of Understanding allowed Vermont Yankee to store spent fuel produced while that memorandum was in effect, through March 2012. The legislature claimed that spent fuel produced AFTER March 2012 was a different story.Vermont Yankee had no right to store that fuel.

In January, Judge Murtha ruled that Vermont could not shut down Vermont Yankee over spent fuel storage, because spent fuel is regulated at the federal level. That seemed clear enough, but the Public Service Board (PSB) seemed to take the attitude that Murtha meant the Vermont Legislature couldn't refuse to allow spent fuel storage but surely the PSB could refuse to allow it.

In March, Murtha clarified the situation by ruling again. (Ruling is here).  I quoted the ruling in an earlier blog post, as follows (emphasis added by me):

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 ... from bringing an enforcement action, or taking other action... 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.”

That seems like that statement was pretty clear.

Expeditious Hearings

Of course, the state doesn't give up so easily. Recently, the state asked for "expedited oral hearings" in the federal appeals process, mainly due to the spent fuel storage issues.  Several days ago, the circuit court judge ruled in their favor about the hearing schedule. There will be expedited oral hearings, because maybe, just maybe, the state actually does rule spent fuel storage, and all that Federal prerogative stuff isn't very important (sarcasm alert).

As noted in the Brattleboro Reformer article, the state... argued that an expedited resolution is necessary to determine what will be done about the storage of spent nuclear fuel produced by the plant.  The judge granted their request for an expedited hearing.  Here's a link to the State argument for expedited hearings, the Entergy response, and the Judge's ruling allowing expedited hearings.  

To me, it seems clear that it is a federal prerogative to regulate spent fuel.  Nevertheless, the issue will  be heard in court once again.  The state will get its hearing in the federal court, with "expedited oral" arguments.

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Note: you can link to many filings in the Federal and Public Service Board dockets at this page at the Energy Education Project website: Dockets for Public Service Board and Courts