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.

Post on Federal Hearing at ANS Nuclear Cafe (and more)

Graph from economic report
March 2010

State Turns Economic Facts Upside Down

Yesterday, ANS Nuclear Cafe published my blog post: In Federal Appeals Court, Vermont Presents Backwards Economic Arguments. In this post I go through the Appeals Court hearing, and especially Vermont's claims of why they say they want to shut down Vermont Yankee. With quotes and examples, I show that Vermont's arguments are..well...bogus.

Yes, "bogus" is the word I used in the post, and I think it's the right word.  Though I am fond of the word meretricious, which Google defines as: "Apparently attractive but having in reality no value or integrity: "meretricious souvenirs for the tourist trade".

Let's look at these meretricious arguments.

First Vermont claimed they were interested in economics, not safety, when the Senate took their famous vote.  I point out that they voted in February. They had ordered an economic report on Vermont Yankee, but it was due to be issued a few weeks after their vote.  They voted anyway, not willing to wait for their own economic report on Vermont Yankee, which was issued in March.  Pretty hard to claim the vote was all about economics, under these circumstances!

Second, I quote their lawyer, who basically says that the state wants Vermont Yankee shut down because the paid-off plant makes it hard for new plants to compete.  The state has an interest in keeping electricity prices high?  That's a new one.

Third, in a last-minute salvo, the state lawyer said the revenue sharing agreement with Vermont Yankee is worth $587 million dollars (to Vermont utilities), and that agreement ties the utilities to Vermont Yankee, and that's a bad thing.  Again, a amazing statement.  True. Entergy may have to pay half a billion dollars to Vermont utilities, allowing them to upgrade infrastructure and/or lower rates to their customers.  How is that any evidence that the state should shut the plant down?

I end my ANS post with a quote from Cheryl Hanna of Vermont Law School   Hanna concludes that if the state loses the case (and she thinks it probably will), it is not going to be because the state was "out-lawyered." It will be because the facts and the law are mostly on the side of Entergy.

Please read my post about the hearing. I worked quite hard on it. I am pleased that it was chosen as Best of the Blogs at Nuclear Townhall yesterday.

Guy Page's Guest Post is Now at Energy Collective

Monday, I posted a guest post by Guy Page about the importance of the nuclear plants to the economy of New England.  He based his post on a New England Council report on energy and economics.  I am proud to say that his post has been picked up by The Energy Collective, a prestigious and widely-read blog about energy issues.  It's getting some good comments there, too. I am happy to see an important post on an important topic get more readership!  Energy Policy is Key to Vermont's Future.

Fun with Fuel Pools

XKCD is a scientist, cartoonist, and essayist.  On Tuesdays, he has a feature called "What  If?  Answering your hypothetical questions with physics, every Tuesday"  Yesterday he addressed the question: "What if I took a swim in a typical spent fuel pool?"   Great fun with beach balls!

For the geeky, I also recommend his comics. I love the one about energy density of uranium versus other fuels: Log scales are for quitters who can't find enough paper to make their point properly. 

Widening the View: From Vermont to Iowa and England

Starting in Vermont

This morning, the Brattleboro Reformer had an interesting and controversial op-ed about Vermont Yankee. Since Howard Shaffer and I had visited the Reformer offices recently to have a background-style talk, I was interested in the editorial.

The op-ed claimed that Vermont Yankee is unlikely to close "on schedule." It pointed out that Entergy could bring several types of lawsuits against the state-ordered closing. Any of these lawsuits could extend the plant license for twenty years (if Entergy wins) or for a couple of years (while the lawsuits wend their way through the courts) even if Entergy doesn't win. The potential suits fall into three categories:

1. Federal pre-emption. What were all those Vermont Senators doing when they inveighed against the dangers of tritium and insisted the plant must close down? Weren't they aware that radiation safety is an NRC issue, and cannot be decided by a state? The Senators were giving grounds for a lawsuit on pre-emption of the NRC.
2. Contract violation. Entergy signed a Memorandum of Understanding that said it agreed that it would abide by a Public Service Board issuing (or not issuing) a Certificate of Public Good. After the contract was signed, the Legislature voted itself the privilege of telling the Public Service Board whether or not it could issue that Certificate. This legislative veto power was not in the original contract.
3. What is an MOU? A Memorandum of Understanding is a contract. On the other hand, with some lawyers getting into the act, an MOU could also be considered non-binding, or it could be considered more binding than the usual contract. Fun for all, I suppose.

I covered many of these topics in two February 2010 blog posts called The Day After the Vote and The Morning After. I discussed pre-emption, contract law, and the possibility of lawsuits. I would call myself a real fortune-teller, except that I expected the lawsuits to begin more-or-less immediately at that time. No lawsuits began. Entergy quite reasonably decided to find and remediate the tritium leak before getting lawyers involved.

There's still time in the future for a lawsuit. At this point, these lawsuit ideas are simply speculation.

Expanding to Iowa

A local blog, Vermont Tiger, discussed the Reformer op-ed in a post Drop Dead Date for Yankee? Vermont Tiger compared the fierce opposition to Vermont Yankee with the general acceptance of the license extension recently granted to Vermont Yankee's sister plant, Duane Arnold in Iowa. Duane Arnold is a 615 megawatt BWR: it even has a low bank of cooling towers, just like Vermont Yankee. (picture above). The Iowa paper describes Duane Arnold as an employer, a provider of taxes, a provider of energy, and a "valuable corporate neighbor."

I appreciate Vermont Tiger for widening my view of how people look at nuclear plants. Too many people in Vermont declare: "We are Vermont and we are very very special. Nothing is quite good enough for us." These people give Vermont a smug problem. Without Vermont Yankee, Vermont will have gas-fired generation, and we will also have a smog problem. Nice to know that Iowa has a different view of nuclear!

Britain

And now, looking across the seas, Centrica, a UK gas company, moved into the nuclear market in 2009. They made this video to educate their employees about their investment in the UK nuclear program. This video shows why Britain needs nuclear energy. It also shows why Iowa and Vermont need nuclear energy. Or basically, why the whole world needs nuclear energy.

Images from Wikipedia and NRC.

The Morning After

Believe me, friends, it feels like a "morning after." Wednesday the news came thick and fast. An all-day video feed of the Senators. The vote. The announcement that Entergy was disciplining employees. The announcement that the NRC had commented and would issue a Demand For Information. The announcement that the NRC knew about an earlier tritium incident. I can't possibly cover all of Wednesday's news in one post. I can't give the ultimate-big-picture context.

However, with Justice Marshall of the 1810 Supreme court as my guide, I plan a pleasant, almost courtly post, in which I will discuss the law, the vote, points of grammar, and definitions.

Actually, I plan to discuss legal challenges, politics, Entergy management and whistleblowers.

The Law

In an earlier post, I covered legal remedies that might be applicable to Vermont Yankee. Yesterday I spoke to two lawyers, who will remain off the record. I asked the first lawyer, who is anti-nuclear, to read my post and comment. He didn't think very highly of it, except for the possible importance of pre-emption. The second lawyer was pro-nuclear. This lawyer said that the case would probably turn on pre-emption. You heard it first here, friends. Pre-emption. Is the Vermont Senate attempting to pre-empt the NRC? I think so. Two lawyers agree. Stay tuned.

Other nuclear plants have been shut down, and some of them were quite unpopular at the time. However, those shutdowns followed very different scenarios. In some cases, the plant was off-line a lot and uneconomical. In other cases, the plant was required to make repairs and the owners considered the repairs too expensive. In other words, it was always the owner's decision to close down the plant. Yes, the antis celebrated in every case, but in the last analysis, it was the owner's economic decision that closed the plant.

With Vermont Yankee, we have a plant owner who wants to keep the plant operating, and a plant that has not been instructed to make expensive repairs. The legislature voted to shut it down? Keep that word in mind. Pre-emption.

The Vote

Well, the vote was just awful. Twenty-six to four. What can I say?

Still. The four votes in favor of the plant were two Democrats and two Republicans. If the vote is held again, nobody can assume a straight party-line split. I like that.

And even the vote wasn't all that clear. Some Senators voted against the plant partially due to the timing of the vote. The tritium leak and misleading statements hurt the plant's chances for approval. This stuff will be old news next year, but it is at the top of the agenda now. The New York Times reported about one senator who voted against the plant:

“If the board of directors and management of Entergy were thoroughly infiltrated by antinuclear activists, I do not think they could have done a better job of destroying their own case,” said one senator, Randolph D. Brock III, a St. Albans Republican who cast several votes friendly to the plant.

And so we have a nice little transition to my next section, about Entergy management.

Points of Grammar

Entergy suspended several employees as a consequence of the miscommunications. This report from the Rutland Herald claims that John Dreyfuss and Dave McElwee were among those suspended. Dreyfuss and McElwee were always in the forefront of testimony. I saw them testify at several hearings, and sometimes spoke to them. Full disclosure: McElwee and I also had several email conversations, particularly last November when we were both debating anti-nuclear activists. McElwee and Dreyfuss are not personal friends of mine. I have never joined either of them for a cup of coffee, a drink, a lunch. Just to make that clear. This section is about grammar and Entergy management, not anything personal about Dreyfuss and McElwee.

I think both men are both getting the short end of the stick. I believe Entergy did NOT have procedures in place for briefing them before they testified or answered the questions of review panels or activists.

In McElwee's case, my evidence is the famous email: "we consider this issue closed." I quote below from Arnie Gundersen's January 27, 2010 testimony to the House Committee on Natural Resources and Energy:

From Entergy Legislative Liaison Dave McElwee to Gundersen, August 13, 2009

“As for your outstanding question on underground piping goes, Act 189 requested that an underground piping system carrying radionuclide’s be part of the inspection. Other than piping carrying gaseous material (with very low amounts of contamination and no median to contaminate the ground water which was the intent of this item from the legislature) we have none. Since this is not an item active in the review of CRA recommendations, we consider this issue closed.”

McElwee cc’d Jay Thayer on Entergy email

I have added emphasis on misspellings and wrong word use. The sentences are long and hard to follow. This is not an attempt to embarrass McElwee. I am merely pointing out that this was an important communication. This was a request that was referred to the plant by the Public Service Board, and it doesn't look like anyone reviewed the answer. It sounds like someone said: "Dave, just answer this, okay?" And he did the best he could.

If you deal with an intervenor or auditor or advisory body, management must set up a regular method to get statements reviewed. Management must support the people who are going to sign their names to the testimony. There have to be in-house procedures for communicating with auditors and review panels. There has to be management sign-off on the answers.

A similar story about John Dreyfuss. I had been to several hearings where James Moore of VPIRG castigated Entergy and the state for hiring Oak Ridge Associated Universities (ORAU) to monitor radiation at the plant boundary. When John Dreyfuss came to Norwich in November to debate Moore, he looked completely baffled by Moore's comments on ORAU. From where I sat in the audience, it looked like Dreyfuss had been thoroughly blindsided by an unexpected topic.

After the debate, I gave Dreyfuss a little background on the controversy, and he thanked me. But why me? I mean, if someone in your company is going to appear on a panel with an opponent who is very fond of a certain line of attack, wouldn't you brief your person first? Nobody briefed Dreyfuss on this. Another example of the managers simply not having their act together. The front line people just have to go out there, unsupported, and do their best.

In a post today, Rod Adams put the situation of the disciplined employees succinctly. They got "thrown under the bus."

Note: This critique is about Entergy relationships with regulators and Entergy communications. The tritium was no problem yesterday, and it is still no problem today. Tritium leaks are not indicative of bad management.


Definitions

What is a whistleblower? In an earlier post, I note that Gundersen got an email from a whistleblower about an earlier tritium leak. However, that leak was totally within the plant boundaries, and reported to the NRC years ago. If you blow the whistle on something already reported to the NRC and fixed....are you a whistleblower? Should everything reported to the NRC be simultaneously reported to the press? I don't know. I am asking you, faithful readers, for your opinion.