A Court Case with a Deadline: The Black Start Diesels

Breaking News: 

Last night, the hearing officer for the diesel docket at the Public Service Board recommended granting a certificate to allow the diesels to be installed.  This is great news!  However, as Entergy notes in its response, the PSB has not yet ruled on this recommendation, so the situation remains uncertain.  Andrew Stein article at Vermont Digger includes a link to the hearing officer statement.

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A Court Case with a Deadline

On June 4, in federal court in Brattleboro, there will be a hearing on Entergy's suit against Vermont's Public Service Board.  While many court cases drag on forever, this one is likely to be resolved quickly.  Entergy needs an answer from the court by mid-June.

Vermont Yankee needs a diesel generator.  The plant must begin pouring the concrete pad for it in mid-June.

Background

Vermont Yankee and Vernon Dam

In the summer of 2012, the New England System operator (ISO-NE) changed its black-start power plant requirements.  "Black Start" power plants are plants that can start quickly and re-energize the grid during a wide-spread outage. Until last summer, hydro plants were the black-start plants, but hydro plants tend to be small (Vernon Dam is 34 MW).  Gas-fired plants can also start quickly, and gas-fired plants tend to be bigger.  It would require fewer gas-fired plants to re-energize the grid.  Therefore, last summer,  ISO-NE said that small hydro plants such as Vernon Dam would no longer be black-start facilities.  That role would be assigned to larger gas-fired plants.

Vermont Yankee has a direct tie-line to Vernon Dam, and had always counted Vernon Dam as a source of emergency back-up power. When Vernon Dam was re-classified and would no longer be a black-start facility, the Nuclear Regulatory Commission required Vermont Yankee to replace it with another emergency diesel generator.

Supposedly, in Vermont, adding a diesel generator at a nuclear power plant requires a ruling from the Public Service Board.   That's the current Vermont requirement, and Entergy tried to comply.  In early August, Entergy announced it would ask the PSB for permission to add a diesel generator.  The Brattleboro Reformer reported on the request on August 7 (Entergy to ask for new diesel generator at VY), and I blogged about it on August 13 (Black Start, Black Out and Diesels, Some Clarity).

Trying to Shut the Plant Down

As soon as Entergy said it needed a new diesel generator,  intervenors got ready to try to stop them from acquiring one.  As Ray Shadis of NEC said in the Reformer article: "the state even today regulates certain aspects of existing emergency generators -- such as exhaust emissions, petroleum leaks and noise."  He clearly hoped that this diesel generator, a required piece of nuclear plant safety equipment, would be stopped on the basis that diesel generators are..well, they are diesels.

(sarcasm alert) We don't need no stinkin' diesels in Vermont. (end alert)

The Public Service Board Refuses to Act

Vermont Yankee began the process of asking for a new generator last August.  In general, such simple requests to the Public Service Board do not require complicated dockets, but are decided in two or three months. This type of request does not require not the same type of docket as a utility merger might require.  However, the PSB made it pretty clear that they were going to make this decision into a major issue. After months of hesitating, on December 27, they opened the investigation into the diesel with a PSB order that included these words:

As a preliminary matter, the Hearing Officer may request parties to examine the question of whether (i) the Board can and should grant permission for Entergy VY to install the generator when Entergy VY is not in compliance with existing Orders and CPGs and has not demonstrated that it is willing to comply with orders of this Board 

Orders and Implied Orders

The "orders of this Board" clause is not about something small.  It's huge. The question is whether Entergy has a right to keep operating Vermont Yankee after March 2012, when its original certificate of public good expired. In general, by Vermont law, plants can keep operating with an expired certificate, as long as they had applied for a new certificate in a timely fashion (as Entergy did).  But Senate votes and federal court cases (among other things) have muddied the waters on the certificate extension, at least in the opinion of the PSB.

I have not actually found any order from the PSB requiring the plant to shut down.  It seems to be more of an order-implied-by-the-question  that is quoted above. If someone can find such an actual PSB order, I hope they will tell me.  The last two years of PSB orders can be found on this page:  Recent Public Service Board Orders.

The PSB did issue an order recently, however.  On April 24, the Public Service Board entered a Scheduling Order on the docket, re-iterating that it wanted answers to the questions  from the December 27 order.  To put the matter rather mildly, with this statement, the PSB gave Entergy absolutely no assurance of a timely decision.

Entergy Sues

On April 25, Entergy sued the Public Service Board in federal court, claiming the Board has no authority over safety equipment at a nuclear power plant.  It seems clear to me (and apparently, equally clear to Entergy) that the Public Service Board is willfully interfering with the purchase of  nuclear safety equipment. The Board is pre-empting and frustrating the federal role of ensuring safety at nuclear plants.  Andrew Stein at Vermont Digger has a good short article on the lawsuit. I have the Entergy complaint (document that outlined their suit) on federal-filings-page of the Energy Education Project website.

As the Entergy complaint notes, on page 25:   Vermont's refusal to authorize construction of the station blackout generator....is an aspect of the state's long-running campaign to force the VY Station to shut down by any means necessary because of radiological safety concerns....[Vermont] has no genuine, non-pre-empted state interest in preventing construction of the blackout generator.

A June 4 date has been set for the hearing.


Even Nuclear Opponents Wonder about the PSB's Choices

Pat Parentau

Pat Parentau is no friend of Vermont Yankee.  He is a professor at Vermont Law School and an advisor to the Vermont legislature on methods for shutting down the plant.  However, even Parentau appears puzzled by the Board's actions.  A recent article by John Dillon at VPR quoted Parentau:

Vermont Law School Professor Pat Parenteau said the suit puts state regulators in a difficult situation.

“The point is you have a federal law that mandates something to be done and the state seems to be frustrating that,” he said. “And that’s just not the position you want to be in.”...

“Once again, I’m concerned about how the state interacts with the federal court in this matter,” he said. “If they have a real basis to say, ‘no, we’re not going to let you do this.’ Then, okay, what is that basis? But they don’t seem to have that. Why didn’t the state just do something that would avoid this? I don’t know.”


The court date is coming soon.  It will be interesting to see how the state defends their position on the diesel generator.  I personally don't think they can defend it. "They don't seem to have that [a real basis for their statement]" as Parentau said.  So true, indeed.

The state is making arbitrary decisions on nuclear safety, and now they will be in court again.  However, every time a case is heard in court, it is a gamble.  I am not a lawyer. I  think the state does NOT have a good case, but I certainly don't think it is a slam-dunk that one side or the other will win.

I think Entergy is in the right on this, and I certainly hope for a good outcome in court.

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Note: You can link directly to the Entergy filing complaint filing pdf here.  It includes a timeline, including Entergy warning the PSB of the date that it would sue them, if the PSB didn't move.  The pdf is a longish document and will take time to download.

I have another document, also, about Vernon Dam.   I asked an  Entergy spokesman if VY had tried to pay Vernon Dam to continue to be available as a black-start facility.  In return, he sent me this filing that Entergy made to the Public Service Board on April 12.  Entergy had asked Vernon Dam (TransCanada) that question and been refused.  TransCanada was willing to be black-start if required by ISO-NE, but did not want to take on the liability of being contractually bound with a nuclear power plant.

All filings to the PSB are public documents, but this one does not appear on the PSB website.  I thank Entergy for sharing it with me.  Mark Potkin's testimony on negotiations with TransCanada--a relatively short pdf.

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

Vermont Loses Lawsuit Against NRC about Water Quality Permit

The Intervenors (and Vermont) Sue the NRC and Lose

The New England Coalition (NEC) is an intervenor that has fought Vermont Yankee since before the plant opened.  About a year ago, NEC brought a lawsuit against the NRC.  NEC claimed  that the NRC should not have granted Vermont Yankee a license extension because the plant did not have an up-to-date water quality permit issued by the state. They claimed that Vermont Yankee's NRC license was invalid, and had to be rescinded.

Late last month, NEC lost the lawsuit.  The U.S Court of Appeals in Washington D.C. ruled against NEC and for the NRC.  You can read the ruling here.

Liz Miller
DPS Commissioner

Oops!  Did I say NEC lost the suit?  What I meant was that the Vermont Department of Public Service  (DPS) and NEC lost the suit, because Vermont joined the suit.  DPS joined the suit big-time.  Liz Miller, the DPS Commissioner, argued the case before the Court.

The State's Case and My Opinion

I found the state's case quite odd. I wrote an blog post last year -- A State of Confusion: The Suit about the Water Quality Permit.  As I said at the time: the state is the one that issues water quality permits.  If the plant's water quality permit was not up to the state's requirements, the state should have insisted that the plant do something about this.  Instead, the state sued the NRC, saying the NRC should not have issued the license extension.

In other words, Vermont claimed that Vermont hadn't cared about the water quality permit status, but the NRC should have cared.  My guess was this argument wouldn't convince a court.

It didn't.

The Court's Opinion

The court ruling was related to what I had expected, but different.  The appeals court ruled that the state had an obligation to bring up this contention before the NRC during the hearing, not wait until the license was granted and come in with an "oh, by the way" lawsuit.  To quote the ruling:

“.. petitioners here were required under agency regulations to afford the full Commission an opportunity to pass on the section 401 issue before seeking judicial review. And they had repeated opportunities to do so...[they] sat silent for two and one-half years thereafter, raising their... objection only after the Commission issued the license renewal in March 2011.”

The Opponents' Opinions

Many of the opponents cried bitter tears that the NRC had escaped on a procedural technicality.

According to VPR, a NEC spokesman, Chris Killen, said: "The New England Coalition, and all Vermonters, have now been deprived of the right that was guaranteed to them by Congress, to have a say in how this plant affects clean water." According to the same article, Shumlin's spokesman  John Being said "We're disappointed that the court declined to address our substantive water quality argument and instead ruled, based upon kind of a technical issue, a procedural issue,"

Pat Parentau
Vermont Law School

However, in the same VPR article, Pat Parentau of Vermont Law School said the court ruled on a fundamental point of administrative law.

"Where there's a clear process to raise an issue, before the commission - that‘s the key - before the commission itself - that you can't miss that opportunity and expect the circuit court to hear your argument," he said.

Pat Parentau would like to see Vermont Yankee shut down, but he knows this ruling was not procedural nit-picking.

The Next Step

Of course, Vermont claims it is considering an appeal to the Supreme Court.  Vermont always wants to take it all the way to the Supreme Court. (Take It To the Limit.)  However, most people admit that this ruling is the final ruling. The Supreme Court won't hear the case. The Supreme Court rarely reviews rulings that are made on the basis of administrative law.  So the next step is---this ruling will stand.

It's funny how often Vermont gets tripped up by the Constitution or by customary administrative law requirements, or other stuff like that. It's almost as if our administration doesn't think things through. (sarcasm alert)

Oh By The Way

Let's talk "substantive issues" here for a moment.

First issue.  Vermont Water Quality Reviews are On-Going: The Agency of Natural Resources (ANR)  has been working on a water quality permit with Vermont Yankee since 2006.  To quote a Brattleboro Reformer article on the lawsuit: ANR is still in the process of determining whether Yankee should receive a permit to discharge non-radioactive cooling water -- at up to 100 degrees -- into the Connecticut River. That process has been going on since 2006 and is not expected to be resolved anytime too soon.  In other words, what the heck was this Vermont lawsuit about?

Second issue. Why Is the Department of Public Service doing this?  The Department of Public Service is supposed to be protecting the rate-payer in hearings before the Public Service Board, not running down to Washington to join intervenor lawsuits.  However, as I said in my blog post: Gaz Metro Deal Goes Forward. Ratepayers Stiffed. the DPS is not defending the ratepayer.  The DPS is just another one of the ducks that Governor Shumlin gets in order.