Entergy Files Suit

This morning, Entergy filed suit to keep the plant open by requiring Vermont to honor its signed contracts. The State of Vermont signed a Memorandum of Understanding with Entergy in 2002. The State has attempted to amend that contract on a one-sided basis. Entergy's lawsuit was described in a Burlington Free Press article this morning. You can also download the filed lawsuit here.

According to the Memorandum of Understanding (page 6) the parties "espressly and irrevocably decree that the Board (Public Service Board) (1) has jurisdiction under current law to grant or deny approval of operation of VYNPS beyond March 12, 2011."

However, in 2006, the legislature voted that the PSB could not issue such a certificate without legislative approval (Act 160). This was basically a one-sided change to a written contract. There are tons of precedents that one side cannot change a contract without the other side's approval. Let's see the list of such precedents.

1. There's the Parol Evidence Rule for ordinary contracts. The written contract is the ruling document.
2. But this is a state, right? According to the Supreme Court, even states can't break contracts. This goes back to the Fletcher v Peck case of 1810, where a state attempted to pass a law that invalidated a contract the state had already signed. In 1810, the Supreme Court said the state could not do that. The precedent stands. (Last year, I noted this precedent in my blog post The Day After.)
3. Finally, there's the U.S. Constitution. According to Article 1, Section 10, no state shall pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.

According the the Vermont Yankee press release, there are further precedents, not closely related to Act 160. (Note, the precedents cited above are my opinions, not taken from Entergy documents.) Here's a quote from the Entergy press release about some nuclear and interstate commerce law precedents.

• Atomic Energy Act Preemption. Under the Supremacy Clause of the U.S Constitution, the U.S. Supreme Court held in 1983 in a case involving Pacific Gas & Electric that a state has no authority over (1) nuclear power plant licensing and operations or (2) the radiological safety of a nuclear power plant. In violation of these legal principles, Vermont has asserted that it can shut down a federally licensed and operating nuclear power plant, and that it can regulate the plant based upon Vermont’s safety concerns.
• Federal Power Act Preemption and the Commerce Clause of the U.S. Constitution. Vermont is prohibited from conditioning post-March 2012 operation of the Vermont Yankee Station on the plant’s agreement to provide power to Vermont utilities at preferential wholesale rates. The Federal Power Act preempts any state interference with the Federal Energy Regulatory Commission’s exclusive regulation of rates in the wholesale power market. The Commerce Clause of the U.S. Constitution bars a state from discriminatory regulation of private markets that favors in-state over out-of-state residents.

The Governor

Not surprisingly, it comes down to Shumlin again.

Another quote from the press release:

In a meeting with Entergy representatives on March 30, 2011, the governor reiterated his firm opposition to the operation of Vermont Yankee after March 21, 2012.

Ah well. At least he's consistent, I suppose. He campaigned against Vermont Yankee, and he was losing. Then he began campaigning on reproductive rights and healthcare and sneaked to victory.

Was I Behind the Curve on This?

Sometimes, I think I am the last person to know these things. Do you remember this chart of Vermont's Committed Resources that I put in my blog about a week ago? The chart comes from a Department of Public Service presentation from March of this year. Note that Vermont Yankee electricity supply doesn't end on March 21, 2012, but continues for a while. If there's a lawsuit, the plant can almost certainly keep running while the suit continues. Why didn't I notice this aspect of the chart before?

Update: Joffan is quite right in his comment. This chart shows VY supplying similar amounts of power in 2010 and 2011, one-fourth that amount of power in 2012, and no power in 2013. I misread it. However, I am going to leave the chart in place because it shows how Vermont depends on Vermont Yankee (2000 out of 6000 GWh) and what a big gap would need to be filled.

48th Blog Carnival

The 48th Carnival of Nuclear Energy Blogs has been assembled by Dan Yurman and hosted at ANS Nuclear Cafe. As you might expect, Fukushima is the main topic. As a matter of fact, I even blogged about Fukushima instead of Vermont Yankee!

Rod Adams points out that as Fukushima moves from an INES 5 to a 7...zero is still a relevant number. That's the number of deaths to date.

Charles Barton at Nuclear Green discusses Chernobyl, and inherent safety features of the proposed Molten Salt reactor.

Idaho Samizdat describes the work of decommissioning Fukushima, and includes a guest post from Jacques Besnainou, CEO of Areva Inc., on the poor reporting and half-truths about MOX fuel.

At Next Big Future, Brian Wang discusses the INES numbering system, and the non-story of INES 7.

NEI describes nuclear workers in Japan and the U.S., referencing a New York Times story about ignorant farmers being hired to work in Japanese nuclear plants. Well, it's not that simple, really.

Gail Marcus at Nuke Power Talk describes the need for all sorts of energy.

Idaho National Lab has a video on nuclear safety.

ANS Nuclear Cafe features information on how the ANS Social Media list helped support accurate reporting, and also how new types of outreach are changing the conversation. The first post is by Margaret Harding, and the second by Suzanne Hobbs.

As I mentioned before, I also have a post about the evolution of our understanding of Fukushima at Yes Vermont Yankee.

Also listed in the Carnival, Nuclear Street has amazing pictures of the water line at Fukushima. Worth a look!

Enjoy the Carnival!

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I will be offline for two or three days, visiting family for Passover. I wish a good week to all my readers, and a good holiday to those also celebrating Pesach.

Fukushima Oversimplified and Simplified

We Start with Complete Lack of Clarity

Trying to understand what is going on at Fukushima has not been an easy task. Even after the first weeks, information out of Japan was hard to parse. For example, on April 4, the Capacity Factor blog attempted to understand inconsistent radiation readings in Japan, while on March 27, Cheryl Rofer blogged about the ways radiation measurements could go wrong.

Then there was the entire "tellurium shows there is re-criticality" business.

First, the Japanese reported the presence of tellurium in a water sample.

Second, Arnie Gundersen and others were quick to claim that this proved the reactors had "gone critical" again with a fission chain-reaction.

Third, the Japanese admitted that their measurement was wrong: there was no tellurium present.

The measurement was wrong and Gundersen's re-criticality theory was wrong, too.

In other words, we had a complete lack of clarity.

We Move to Oversimplification

There's a scale, the INES scale, for nuclear accidents. On this scale, Three Mile Island was a 5, and Chernobyl was a 7. Seven is the highest level on the scale. Until April 11, the Fukushima accident level was assigned as a level 5, the same as Three Mile Island (TMI). That was obviously too low an assignment: nobody was evacuated or burned by radioactive water at TMI. Then the Fukushima level was raised to a 7, the highest level possible. Fukushima has only emitted 1/10th the radiation that Chernobyl did. (Also, unlike Chernobyl, nobody has been killed by radiation at Fukushima.) Capacity Factor has an excellent post comparing Fukushima level 7 with Chernobyl level 7.

So, the INES scale has the same rank (7) for two accidents that are an order of magnitude apart in terms of radiation release. However, what about a bigger-than-Chernobyl accident? A two-reactor Chernobyl? That would be an INES 7 also.

Oversimplification.

Real Simplification, Also Known As Clarity

Luckily, in recent days, some clarity has come to general understanding of the Japanese situation. We first moved from complexity to oversimplification, and now we are approaching knowledge.

A wonderful interactive graphic from the New York Times puts many types of earthquake damage on the same graphic (finally!) in a move that Edward Tufte would appreciate.

For our purposes, though, we should look at the "radiation" levels tab of the graph. If you look at a given circle on the map, the color indicates the radiation dosage at that point. Each circle also contains information on the dosage rate, and how long it would take (at that dosage rate) to receive an exposure that:

• equals a chest xray,
• equals the allowed dosage of a United States nuclear worker,
• becomes a dosage at which long-term health effects become more likely.

Furthermore, in the Radiation tab of the Times graphic, there is a slider under View Readings Each Day. If you move the slider to March 17 and then move it forward in time, you can see the overall radiation levels decrease with time. The colors of the dots become less intense. It's a great visual and shows that the radiation is getting under control. Airborne radiation levels are diminishing.

This makes sense, because most of the radiation was released in the early days of the accident.

There's another good source if you want to see the time evolution more directly. The NEI (Nuclear Energy Institute) blog linked to a new graphical blog based on Japanese data sources. This blog has graphs of the main parameters of the reactors over time on one set of charts. For our purposes, another set of charts is more interesting: these charts map the evolution of the radiation levels in Ibaraki prefecture and Tokyo, with a comparison to European background levels.

Once again, the charts show the same clear story of steadily decreasing radiation levels. Radiation spikes at the beginning of the accident, then steady decreases.I have grabbed one of these charts below. As usual, double-click to enlarge it.

Final Clarity?

Final clarity is not available yet. Power has been restored to the Fukushima site, radiation levels off-site are decreasing, the major radiation outflow from the plants now is water, which is intrinsically easier to control than air-borne emissions. But nobody would say that the problems are over.

Fukushima isn't Chernobyl, and it isn't Chernobyl on steroids (as Gundersen predicted) but it is serious. This Fox news clip is not particularly upbeat, but I think it is a good summary of the situation to date.

The graphic at the top of this post is a picture of a snubber at Brown's Ferry. Brown's Ferry is a sister plant of Fukushima and Vermont Yankee. The snubber is isolates vibrations for Unit 1 and is part of the seismic activity safety equipment for the plant. Photo used with permission of TVA.

Eye chart from Wikimedia.

47th Carnival of Nuclear Energy Blogs

The Forty-seventh Carnival of Nuclear Energy Blogs is up at Cool Hand Nuke. Jeff Madison did a great job of pulling those blogs together.

As the situation in Japan becomes more stable, Cool Hand Nuke reports on how it will affect new builds in the U S. It won't affect them much. Brian Wang of Next Big Future looks at the statistics of radiation survivors, including Hiroshima and Nagasaki, and puts the current situation at the Japanese reactors in perspective. It is most probable that very few (or no) premature deaths will result from the situation in Japan. Corroborating this, Steve Aplin of Canadian Energy Issues points out: "When the prospect of a single nuclear fatality is judged more newsworthy that the plight of half a million people in an unprecedented natural disaster, something is seriously wrong in the editorial rooms." (Emphasis added by blogger).

Gail Marcus of Nuke Power Talk describes TVA's Brown's Ferry plant, and how it is different from Fukushima. Personally, I think of these reactors as similar houses in a subdivision: when they are built, they all look alike. After thirty years of modifications by the owners, there are significant differences between them. Kudos to Gail Marcus and to Matt Wald of the New York Times for pointing out the modifications. Also, kudos to TVA for opening their plant to the media. If you remember, I embedded the video of the Brown's Ferry tour on this blog.

For a full perspective on Japan, we must also look at the financial and society costs of the reactor damage. Dan Yurman looks closely at lessons learned from TMI in his post on "Decommissioning Fukushima" on the ANS blog. At Idaho Samizdat, Yurman breaks a story about a confidential government report about Fukushima. Yurman also links to the report. Read his post and read all about it!

The nuclear opponents are quite busy at this time, and Charles Barton of Nuclear Green describes the strategies that George Monbiot used to discredit Helen Caldicott. Caldicott doesn't have evidence to back up her claims, and Barton describes Monbiot's effective method of just keep asking for the evidence. "Just the facts, ma'am. You can skip the hyperbole for now." Pro-nuclear activists have to just keep asking.

Meanwhile, in Vermont, I concentrate on---Vermont. My post on the Carnival is about Vermont utilities and Vermont Yankee. Isn't it interesting that GazMetro (aka Green Mountain Power) is a major utility buying power from Vermont Yankee, but has a serious conflict of interest in selling power from Vermont Yankee? It would definitely rather sell Canadian gas to power plants.

And here's a link to a post that went up today, and is not on the Carnival. In View From Vermont at ANS Nuclear Cafe, Howard Shaffer says that The More Things Change, The More They Stay the Same. Howard and I have been in several public forums (debates, club meetings) where we have presented material about Fukushima. After our presentations, nobody asks questions about Japan. The opponents attempt to convince the audience that "This is going to happen in Vermont, probably tomorrow!" Most people aren't interested. As one woman said to me after a debate: "You wasted your time talking about Japan. It's a long way away. We want to know about Vermont."

We get questions about tritium leaks, costs, whether Entergy lied under oath, what will happen with the spent fuel that is stored on site. In other words, the same questions. The more things change, the more they stay the same.

All politics is local, and so are all nuclear plants.

Entergy, Vermont Utilities, and Methane from Canada

Utilities in Vermont: Whom Do They Serve?

In a previous blog post, I described the flap that ensued when Entergy announced that they had completed negotiations with Vermont Electric Cooperative (VEC). Entergy made this announcement before the VEC board had approved the contract. I suggested that the announcement wasn't about the VEC deal as much as it was about signalling other utilities that Vermont Yankee would sell power below market rates.

Who were these other utilities? There are two big utilities in Vermont: Central Vermont Public Service (CVPS) and Green Mountain Power (GMP). These utilities basically provide transmission and distribution services, and are regulated by the Public Service Board.

Rate Relief for Utilities

About two years ago, I attended a hearing about Vermont Yankee at one of the legislative committees. GMP and CVPS representatives testified. The legislators asked the GMP and CVPS representatives what would happen if Vermont Yankee would go on a prolonged outage before March 2012?

The utilities answered they carried "outage insurance" (for unexpected outages) on Vermont Yankee, and they would use this insurance to pay the differential between Yankee rates and grid rates. However, the insurance covered only a fixed time. If Vermont Yankee stayed off-line for a longer period, the utilities would have to appeal to the Public Service Board for "emergency rate relief." They would ask the Public Service Board for permission to raise rates to their customers, with very little warning.

I expect such a request for rate relief would have been granted.

Since the Public Service Board can give rate relief to the utilities, the utilities do not have to worry overmuch about being squeezed between high-cost providers and low-paying customers. Consequently, the utilities do not have a bottom-line requirement to get the cheapest rates possible.

However, the utilities are supervised by the Public Service Board, and the Board has the best interests of the ratepayers at heart. At least, I hope so.

CVPS and Vermont Yankee

In recent days, the two major utilities in Vermont have said they do not plan to buy power Entergy. As quoted by Shay Totten in the 7days blog, Bob Young, CEO of CVPS said:

"We concluded that there were four conditions if we were to sign a deal: NRC approval of relicensing; the sale of the plant to a new owner; an agreement for Entergy to sell 20 megawatts in Vermont in addition to sales to CV and GMP; and state approval of the decommissioning and any other issues of interest to the state...It has been our position that we would not enter into a formal contract absent a sale and tacit state approval of any proposed deal."

I have been following the story of Vermont Yankee pretty closely, and this is the first time I had heard of CVPS saying that Entergy needed to sell the plant before CVPS would buy power from it, or that Entergy needed to sell 20 MW in Vermont to groups besides CVPS and GMP. If anyone can tell me an earlier time these requirements were announced, I would be grateful. I had heard that CVPS and GMP preferred if the plant had another owner, but not that CVPS required the sale before buying power. In my opinion, by stating that "we won't buy from THAT company, no matter how cheap and reliable the power is" CVPS is abandoning their duty to obtain low-priced reliable power for ratepayers.

Green Mountain Power and Vermont Yankee

On the other hand "we won't buy" is exactly what I would have expected to hear from Green Mountain Power. After all, they are a wholly-owned subsidiary of a Canadian gas company, GazMetro. Governor Shumlin wants to close Vermont Yankee, but he strongly supports wind turbines and the expansion of natural gas pipelines into Vermont. Green Mountain Power's parent company will undoubtedly make more money from selling Canadian gas to Vermont than Green Mountain Power would make by selling less-expensive Vermont Yankee power to Vermont.

By the way, while it was relatively easy to find a "we will not buy from Entergy" quote from the president of CVPS, I have not been able to find an equivalent "we will not buy" quote from the president of Green Mountain Power. However, I saw an email from the president of GMP which said GMP had found other sources of power through 2016.

Out of State?

If the Entergy press release was signaling low prices to Vermont utilities, the utility statements above make it clear that Vermont utilities don't care about low prices. Maybe they get granted "rate relief" a little too easily?

The statements from CVPS and GMP have been new to some of us, but I am sure they weren't new to Entergy. I believe this attitude of the Vermont utilities is the background to Wayne Leonard's statements, made in a conference call in February. (Emphasis added by blogger.)

In an investor conference call on February 08, 2011, Entergy's CEO, Wayne Leonard, made these comments: Efforts also continue to secure a new power purchase agreement with the Vermont Utilities. Negotiations had been ongoing for some time now, and we have made progress toward reaching agreement on key terms and conditions that would provide citizens of Vermont continued access to clean and affordable power. However, while we would certainly prefer to sell power in state, that is not a necessary condition, of course.

None of this is good for Vermont. Utilities that don't care about price. A big in-state provider that is looking out-of-state for customers.

I think the Vermont legislature has now put Vermont rate-payers in the odd position that even if the plant continues to operate, people in Vermont will not get the financial benefits of the low-cost power.

Bunsen burner flame types from Wikimedia

Press Releases and Signalling: Entergy and Vermont Electric Cooperative

On March 30, Entergy announced that it had finished negotiations on a contract with Vermont Electric Cooperative. The title of the Entergy press release was Entergy, Vermont Electric Cooperative Complete Negotiations on Power Contract and the first two paragraphs of the press release were as follows (emphasis added by blogger).

NEW ORLEANS, March 30, 2011 /PRNewswire/ -- Entergy Corporation (NYSE: ETR) today announced Entergy Nuclear Vermont Yankee, LLC has completed negotiations on a 20-year agreement to sell power from the Vermont Yankee nuclear plant to customers of Vermont Electric Cooperative, Inc., the third-largest electric distribution utility in Vermont.

The agreement is subject to approval by VEC's board of directors, and is contingent on the plant running after March 2012.

I added the emphasis, but even without this addition, you could hardly say that Entergy was hiding the fact that they had completed negotiations on contract terms (if we get a contract, it will look like this) and there were still major hurdles before the agreement became a contract. These are the first sentences of the press release, designed to be the nut graph of any article based on the release.

Vermont Electric Cooperative Reacts

As I noted in a earlier blog post, the CEO of Vermont Electric Cooperative (VEC) , Dave Hallquist, said that he found the Entergy press release misleading and planned to "do a lot of interviews tonight." My first indication of VEC's unhappiness with the press release was a tweet by journalist Shay Totten. The next day, Totten posted Entergy: No Sale of Vermont Yankee in his blog. Here's Totten's quote about Hallquist:

VEC's CEO David Hallquist said Entergy's press release was "misleading," noting there is "no agreement." VEC presently purchases 10 megawatts of power from Entergy at a much higher prices than contemplated in the deal.

"Even with this as a backdrop, the VEC Board of Directors is struggling with any decision to take power from Entergy after 2012, even if Vermont agrees to allow Entergy to operate," said Hallquist in a statement. "A number of the VEC Board of Directors have voiced concern with Entergy's poor relationship with Vermont, the fact that the Fukushima reactor in Japan is the same design, and there is one million pounds of radioactive waste at VY with no plans on what to do with it.

The VEC's board will take up this contract again at its April 26 meeting, and it will likely be a topic at VEC's annual meeting in May, added Hallquist.

Also, as noted in the Rutland Herald, reprinted in Boston.com, (the Herald is behind a paywall) Despite the favorable rate, David Hallquist, VEC's chief executive, said he did not believe the utility's board would accept the deal with Entergy. He said the board was concerned that Vermont Yankee shares the same design as the stricken plants in Japan. "That is really causing some stress to our board," Hallquist said.

Okay, that seems pretty clear. As I noted above, the press release was reasonably straightforward. It was optimistic, but press releases usually are optimistic: "We completed THIS, though there is still THAT to do." Still, the VEC board felt slighted that the deal was announced before they had voted to finalize it. The board may not choose to finalize the deal.

So why did Entergy announce the deal early? Why didn't they wait until after the VEC board meeting?

Signaling

I can only guess, and I have no inside knowledge. Most people will probably assume this press release was Entergy once again shooting themselves in the foot about communications. I don't agree.

I think Entergy is signalling. Signalling can be sort of fancy word for advertising. However, advertising is often comparatively simple: "Strawberries now available at $2.50 a quart." Signalling can be much subtler. For example, a potential employee shows his dedication to his career by going to night school, therefore "signalling" to the potential employer that he will be a very good employee. In my opinion, this press release signals: Entergy Vermont Yankee intends to be open for business after March 2012, and they are willing to give very good power purchase agreement rates.

A signal can be a complex thing. For example, the employee going to night school may or may not be learning a skill that helps him be a better employee. It's not about the skill or even the school. It's about the signal his activity gives to potential employers.

Similarly, I think that the question of why Entergy sent this press release at this time cannot be answered by looking at Entergy's relationship with VEC. This press release is a signal to a wider market. Also, this is an upbeat way of signalling: we're ready to sell power to a buyer! If the VEC board turns down the agreement later this month, Entergy's signal would not be as effective.

Whether the VEC board signs the agreement or turns it down, Entergy sent the signal it chose to send. As I said before, it's about the signal, not about Entergy and VEC.

I don't know if this type of signalling will be effective in helping Vermont Yankee be relicensed. However, advertising a low power price can't hurt. Utilities who ignore this signal will have to justify to their rate-payers why they aren't interested in low-cost power.

Do We Need Vermont Yankee in Vermont?

I think so. If you want to see the situation in Vermont, look at the chart of "committed resources" for Vermont power that heads this post. It was prepared by Dave Lamont of the Vermont Department of Public Service. The chart was part of Lamont's presentation during a March hearing on Vermont's energy future. (As usual, double-clicking on the image will expand it.)

There's a big gap in power supply on that chart. There's a lot of open space between 4000 and 6000 GWh after 2012. The electricity that isn't there would need to be made up with "grid purchases" at whatever price is on offer.

Vermont Yankee raised the stakes with this signal that they are willing to sell power at below market rates. Now the people in Vermont know what is at stake, and what it will mean if Vermont Yankee is voted off the island.

Image from Presentation by Dave Lamont of Vermont Department of Public Service, March 2011

Mortarboard image from Wikimedia

46th Carnival of Nuclear Energy Blogs

The 46th Carnival of Nuclear Energy Blogs is now up at Next Big Future. It is a magnificent Carnival, because the bloggers are finally finding out enough about Japan to write some great posts. This Carnival could be called: Recent Information in Perspective.

Posts include:

• Retrospectives on the problems in Japan
• Fuel pools and spent fuel and the Blue Ribbon Committee in the United States
• Advanced systems such as Pebble Bed Reactors and thorium reactors
• Dangers of different energy technologies (including nuclear)
• Whether MOX fuel makes the Japanese situation much more dangerous
• The George Monbiot/Helen Caldicott debate (hint. Monbiot actually knows stuff.)
• Why you shouldn't take potassium iodide
• Probabilistic Risk Assessment:invented in America, it should probably be used more in Japan.

This is one GREAT Carnival, and thanks to Brian Wang for assembling it!

An Apology

I put up a post last night with a video of a tour of the Waterford nuclear plant. The Today Show toured this Entergy-owned plant, which has successfully weathered hurricanes.

However, the TV show took the video down, and my embedding failed. So I deleted my blog post. If you got an email alert about a blog post named "Waterford" and now you can't find the post, that's the reason.