Why Entergy Needs To Sue The Federal Government About Spent Fuel Storage: Guest Post by Guy Page

I attended the April 14 Vermont Yankee decommissioning meeting in Greenfield. As a longtime student of New England energy policy in general and Vermont Yankee in particular, perhaps I can add some historical background to your April 15 article, "Entergy: we'll sue the federal government to recoup the costs at Vermont Yankee," April 20, page D3.

Spent fuel from U.S. nuclear reactors must be safely stored until it is reprocessed into more fuel or until its radioactivity decays to acceptable levels (requiring hundreds of years, at the least). In 1977 U.S. President Jimmy Carter banned reprocessing. Five years later, Congress passed the Nuclear Waste Act of 1982, "to provide for the development of repositories for the disposal of high-level radioactive waste and spent nuclear fuel," according to its introduction.

According to the Act, the federal government must provide the repository, and the nuclear power industry must pay for it. Sec. 111 (a) (4): "while the Federal Government has the responsibility to provide for the permanent disposal of high-level radioactive waste and such spent nuclear fuel as may be disposed of in order to protect the public health and safety and the environment, the costs of such disposal should be the responsibility of the generators and owners of such waste and spent fuel."

Since 1982, nuclear power plants (including Vermont Yankee) have held up their end of the deal. With principal sourced solely from industry contributions, the U.S. Nuclear Waste Fund had grown to $39.8 billion, according to its September, 2014 report.

In return, the industry - along with regular citizens opposed to onsite storage, many Greenfield meeting attendees among them - has received nothing. There is no repository. True, there is a nearly-finished repository, at Yucca Mountain, Nevada, but the federal government has refused to open it. Sans repository, the federal government has done no more than permit, regulate and oversee the safe storage of spent fuel, in enclosed pools of water and in large concrete shielded, sealed steel casks, at the nation's 104 nuclear power plant sites.

No-one has pressed harder for a central repository than the nuclear power industry. Certainly no-one has more financial "skin in the game" - $40 billion being a lot of money, even in Washington, D.C. More than 30 years after the passage of the Nuclear Waste Act, Washington's promise to the industry and the American public is unfulfilled. Perhaps the possibility of the federal judiciary returning that $40 billion will prompt the executive branch to take effective action. But at the very least the federal government should use the Nuclear Waste Fund to pay the industry for the spent fuel management work it cannot or will not perform - including $150 million at Vermont Yankee alone.

But the federal government won't do that, yet. And that's why Entergy, and other nuclear power plant owners, are successfully suing Uncle Sam. He should either produce a repository, or pay up.

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Guy Page

Guy Page of Vermont Energy Partnership is a frequent guest blogger on this blog.  This op-ed first appeared in MassLive on April 21, 2015  His most recent post described testimony about spent fuel storage.

The Fuel Pools: Opponents Say the Darndest Things!

Attorney General Sorrell

My View of an Opponent Statement

Statement: We're gonna sue you if you use the wrong money to address our safety concerns!

Actual Statement: Attorney General Bill Sorrell said:

If Entergy elects to remove money from the fund, Sorrell said the state will take legal action.

"The fund" is the Vermont Yankee decommissioning fund.   Here's the longer quote with Sorrell's statement. This quote is from John Herrick's report in Vermont Digger-- Special Report: Despite Recent Agreement, State and Entergy Remain at Odds Over Funding for Dismantling Vermont Yankee

Entergy wants to tap the fund to move some of the roughly 3,000 total fuel assemblies at the Vernon plant from its cooling pool and into dry cask storage, a process known as spent fuel management.
Meanwhile, the state wants the fund reserved to tear down the plant.
Ultimately, the state and Entergy “agreed to disagree” on the matter.
Vermont Attorney General Bill Sorrell, who helped to negotiate the agreement, said if Entergy taps the fund, the company could mothball the plant for 60 years, a process referred to as SAFSTOR — the worst-case scenario for Vermont officials.
If Entergy elects to remove money from the fund, Sorrell said the state will take legal action.
“The stakes are very significant,” Sorrell said in an interview. "Vermont is going to want a place — a legal opportunity to be heard on those requests in the future. So stay tuned."

Fuel Pool in France
Fuel assemblies
from many nuclear
plants
Courtesy AREVA

My Comment:

As you can see by the comment stream on the Herrick article, one of the great concerns of nuclear opponents is that spent fuel stored in fuel pools is very dangerous.  Look at Fukushima!  Oh...right, nothing happened to the fuel in the pools at Fukushima.  Well, anyhow...

Opponent comment streams have been steady on the subject that Entergy had better move that fuel quickly to save us all from danger.

But, as you can see, moving the fuel quickly is not the main goal of our state government.  No, if Entergy uses the decommissioning funds to move fuel quickly, the state will sue them.

Let's set aside the fact that decommissioning funds are usually used for fuel management. Let's set aside the fact that such fuel-moving costs may well be reimbursed by the federal government.

Dry Cask Storage
Courtesy NRC

Let's just look at the fact that the state government doesn't see moving fuel as a high priority, compared to keeping the money in the decommissioning fund in order to tear down buildings. The state is threatening to sue if Entergy doesn't use money from somewhere besides the decommissioning fund in order to perform certain decommissioning activities.

It would be moderately amusing to watch the state, once again, try to tell the NRC what to do about nuclear safety or use of decommissioning funds. These recent threats of lawsuits show that the state has not learned any lessons about pre-emption.

Furthermore,  it seems to me that punishing Entergy for running a power plant in this state is very important to Governor Shumlin. It seems more important to him to punish Entergy than to have Entergy take an action (move fuel to dry casks) which many of Shumlin's supporters believe would increase their safety.

So AG Sorrell is going sue if Entergy gets NRC permission to use the decomm fund to move fuel, and then moves it?  On what exact grounds is he going to sue?  Is he going to argue it right up to the Supreme Court?

Wow.  Opponents say the darndest things.

Updated: Breaking News: State and Vermont Yankee Make a Deal

The Deal

The State and Vermont Yankee have a deal about closing Vermont Yankee, announced this afternoon. I have read the breaking news report at WPTZ, and watched Shumlin's press conference as described in  Vermont Digger and embedded below.  Thank you to Digger for posting the conference so quickly!

The deal seems to have hard-edged parts (yes, I understand what's happening) and soft-edged parts (hmmm, open to interpretation here).  I share my opinions below, but I also share the press conference video, so you can form your own opinions.

Hard-edged parts of the deal:

1. Entergy will file a decommissioning plan with the NRC in about a year, although it can legally take up to four years to do so. This plan will include an estimate of the total costs of decommissioning.
2. Entergy will pay $2 million dollars a year for the next five years, some of which will go into the Clean Energy Development fund, and some of which will go into helping displaced workers in Windham County (or at least, something about Windham County--unclear).
3. Entergy will put another $25 million dollars into the decommissioning fund.
4. Entergy will attempt (it can't promise) to move all fuel into dry casks within about seven years. 
5. When the money in the decommissioning fund has grown to the level needed for decommissioning (see #1 above), Entergy will start decommissioning activities within three months. It will not just keep the plant in SAFSTOR for sixty years or so.
6. The state and Entergy drop all lawsuits against each other.

Update: According to the Brattleboro Reformer, "lawsuits are over" does not apply to the generation tax lawsuit which will be heard in Vermont Supreme Court.

http://www.reformer.com/ci_24783693/entergy-and-state-reach-grand-bargain

Second Update: An article in my local paper seems to have a different take on the generation tax--that Entergy will pay the tax-to-date and the state won't expect the tax going forward?  I am sorry, but we will have to wait till after the holidays to get this straight.  Here is the article, originally from the Rutland Herald, but it may be behind a paywall.
http://www.vnews.com/news/state/region/9934425-95/shumlin-vt-yankee-reach-deal

Soft-edged parts of the deal:

1. Entergy agrees that it will "Greenfield" the plant. Actually, Entergy agreed to this in the memorandum of understanding when it bought the plant in 2002. "Greenfielding" means site remediation beyond what the NRC requires for decommissioning.  However, what does greenfielding mean in practice?  Level and reseed the ground? Entergy had always agreed to do that.  Or  does it mean "dig up every foundation to a depth of 40 feet, at great trouble and expense"? Entergy has never agreed to that.
2. Who is agreeing here? I mean, I think it is great to see Governor Shumlin up there explaining the deal, but what about the PSB? Will they be willing to agree to this?  Will they be annoyed that their quasi-judicial process isn't processing?
3. Who is not-suing here?  I can practically hear the howls of "Shumlin betrayed us" from the intervenors.  I suspect more lawsuits will come from that direction.
4. Did the state promise "no clever new taxes on the plant or fuel"?  If they did, I didn't see it in the press conference.  

My Current Opinion:

It seems to me a good-enough agreement.

1. Entergy didn't promise anything it can't perform (such as promising to decommission within ten years or something like that).  
2. Entergy supplied enough Danegeld to allow Shumlin to tell his supporters he made a great deal for the people of Vermont, so he doesn't lose face and he may abide by the agreement.  
3. But Entergy didn't provide too much Danegeld.  After all, the state wanted $12 million a year to make up for the generation tax, though they knew they couldn't actually obtain that amount.

I am sure we will hear more about this, and I bet some intervenors are getting their legal briefs ready, even as I post this.

Meanwhile, the press conference that announced the deal:

The Second Lingering Lawsuit: The Attorney Fees

Attorney's Fees: The Second Lingering Lawsuit

Barrister

What it is: Will the state of Vermont have to pay Entergy's legal fees in the major recent lawsuit?

History:  The state of Vermont passed laws by which the state legislature could shut down Vermont Yankee.  Then the legislature spent a lot of time and energy discussing nuclear safety, which is an area that is regulated only at the federal level. A federal judge reviewed the record, and decided in Vermont Yankee's favor: the state was indeed, attempting to pre-empt a federal prerogative.  The judge also ruled that the state of Vermont also had to pay Entergy's legal fees.  

The state appealed this ruling, and the appeals court also ruled in Vermont Yankee's favor, on the same basis of pre-emption.  However, the appeals court ruled that Vermont did not have to pay Vermont Yankee's legal fees.  So the ruling on nuclear safety was the same in both courts, but the ruling on legal fees was different.  The legal fees at issue are over $4 million dollars.

What happened recently:  Entergy filed a brief claiming that it had other bases on which to claim the legal fees: you can see the brief here at Entergy Fees Memo, filed October 31. The state filed a brief the same day claiming that Entergy should not be allowed to appeal to other reasons to claim the legal fees: you can see that brief at State Fees Memo. 

What is next:  It's not really clear.

About the legal fees:  the state and Entergy are keeping their options open, I believe.  However, they haven't actually started an appeal process. An appeal would be a filing to the United States Supreme Court, and I see no such filing.

Pre-emption is a separate issue, and it was the main issue of state versus federal jurisdiction on nuclear safety. At this point, two courts have ruled against the state on this major issue. The state can appeal those rulings to the Supreme Court.  However, with such a consensus from the lower courts, and the plant shutting down, such a state appeal seems a fantastic waste of taxpayer money. (I am not claiming the state won't press this appeal, you understand.  I just think it isn't very likely.)

Notes: Yesterday I blogged about another lingering lawsuit: the generation tax.  I plan a sporadic series of such blogs to keep up with the legal issues. 

Howard Shaffer Post at ANS Nuclear Cafe: What are opponents doing nowadays?

Vermont Yankee

Howard Shaffer's most recent contribution to ANS Nuclear Cafe was posted yesterday afternoon.

Vermont Yankee: Now What Are Opponents Doing?

In this post, Shaffer describes the many ways opponents are attempting to generate political cover for the ways in which the plant's closing will affect the state, and the related ways in which they continue to foster fear about the decommissioning process, the last few months of the plant's operation, etc.

Governor Shumlin

Vermont Yankee management and the Shumlin administration are in closed-door meetings at this time.  Who knows what they will resolve?  Who knows what they are even discussing, since almost everything about the decommissioning is in the hands of the NRC and Entergy, not the state?  I suspect the discussions are another case of the state attempting to extract Dane-Geld from Entergy.

In the meantime, I recommend reading Shaffer's post for the most up-to-date information on the current "controversies."  Comment on the post, too!  (The opponents are commenting.)

Vermont Yankee: Now What Are Opponents Doing?

State of Vermont Sues in Favor of Federal Pre-Emptive Regulations

Wood Boiler
from University of New Hampshire site on heating with wood

Please Regulate Woodburning at the National Level!

Vermont has joined a group of seven states that are suing the federal Environmental Protection Agency.  The states are attempting to force the EPA to regulate wood boilers.  For those of you who don't live in rural areas, here's how a New York State website describes wood boilers:

(Outdoor Wood Boilers) OWBs....are fuel burning devices (1) designed to burn wood or other fuels; (2) that the manufacturer specifies for outdoor installation or installation in structures not normally occupied by humans; and (3) that are used to heat building space and/or water through the distribution, typically through pipes, of a gas or liquid (e.g., water or water/antifreeze mixture) heated in the device. A typical unit looks like a small metal storage shed with a stack. OWBs can also be used to heat swimming pools, greenhouses, milk rooms, etc.

As the Wall Street Journal notes in its article about the lawsuit:

EPA data says emissions from wood-burning devices account for 13 percent of all soot pollution in the nation.  

As the University of New Hampshire cooperative extension website states:

The "classic" outdoor wood boilers that have been on the market for years have raised public health and environmental concerns. Fuel frequently burns incompletely, resulting in heavy smoke and high emissions.

The problem is compounded by the fact that the stacks on these devices are often shorter than surrounding structures and do not disperse smoke adequately, concentrating it near the ground.

The illustration above is from the New Hampshire website.

State's Rights

I would guess that half the posts on this blog concern Vermont attempting to regulate nuclear safety, and fighting the idea that nuclear safety is regulated at the federal level.  Okay.  Acknowledged.  "State's Rights" are important to Vermont.

Clearly, Vermont thinks it has the expertise to regulate nuclear energy, but it also seems to think that the federal government had better step in and regulate the far more complex situation of wood boilers.  States can't be expected to have their own regulations about such things.

Well, actually....wrong.

Vermont Level of Responsibility?

Vermont actually has a half-hearted attempt to regulate wood boilers.  There's a law (not enforced, apparently) outlawing old wood boilers within 200 feet of a residence or healthcare facility.  There's also some money to help people put in new wood boilers. It is first-come first-serve at obtaining the money.

As the Vermont Air Pollution Control Division (APCD)  describes the program:

 “One way you can look at this is as a friendly-neighbor program,” said Dick Valentinetti of the APCD.

Other States Take More Responsibility

Other states have taken stronger measures.

Washington State has outlawed wood boilers.  From the Washington State FAQ

Are any outdoor wood-fired hydronic heaters legal in Washington?
Not at this time.

New Hampshire has state-level regulations controlling wood boilers. These regulations include stack height, setbacks, and fuel use.

Maryland says it is illegal to own and operate this type of equipment in Maryland. However, in fact, Maryland only responds to complaints about such boilers.

If a unit is causing a big problem, we can issue an order to shut it down.

In Fairness to Vermont

Bruegel illustration of cat-belling

It's hard to regulate wood boilers.  Some of them are used responsibly, some of them pollute entire valleys in the winter. (I know.  I've driven through such valleys.)

Maybe it is politically expedient to let Uncle Sam take the heat on this one.  As the WSJ article explains about New York State:

New York state adopted regulations in April 2011 to require all new wood-fired boilers sold in the state to burn at least 90 percent cleaner than older models. A plan to extend the rules to existing boilers was shelved after a public outcry, particularly in rural areas of northern New York where numerous farms and homes that rely on the heaters would be forced to pay thousands of dollars to replace them.

Clearly, the people in Montpelier want the Federal Government to bell the cat about wood boilers.  If the federal government acts:

• The right hand of the people in Montpelier can encourage the use of wood boilers to meet Vermont's renewable energy plan
• Montpelier's left hand can sue to restrict the use of wood boilers at the federal level.  

This could work, I guess.

In Fairness to Vermont Yankee

Perhaps we need a federal Wood Boiler Act, like the Atomic Energy Act. This new act would move wood boiler regulation to the federal level because it is so complicated. Stack height!  Distance from houses! Particulate measurements!  Far too complicated for a state to regulate.

Once the Federal Wood Boiler Act was passed, we could expect the Vermont legislature to challenge the federal jurisdiction.

At that point, our legislature might find the political courage to regulate wood boilers, instead of merely filing lawsuits against the federal government.