Five Legal Wrangles About Vermont Yankee

Everybody expects Judge Murtha to rule on the Vermont Yankee lawsuit this week. However, this week is almost over. Unless Murtha is planning to throw his ruling into the famous Black Hole of the Friday News Releases, I think he will not rule this week. I could be wrong.

So today is a good day for a retrospective blog post on all five legal wrangles about Vermont Yankee. In reverse order of importance.

5. Mark 1 Reactors and the NRC

What: Beyond Nuclear and other groups petitioned the NRC to shut down all Mark I reactors.

What happened: The NRC turned the petition down. The NRC also said it would review the emergency containment venting. Of course, the NRC was reviewing the venting anyway, as part of the ongoing Fukushima-inspired reviews.

What's amusing: Paul Gunter of Beyond Nuclear dislikes the idea that the Mark 1 vents exist at all. Gunter said he can't sleep at night (or maybe he meant that the NRC people shouldn't be able to sleep at night) because Oyster Creek isn't safe.

4. Vermont Joins New England Coalition in Suing the NRC about a Water Permit that Vermont Does Not Require

What: The New England Coalition (NEC), a long-time anti-nuclear group, is suing the NRC, saying that they shouldn't have granted a license renewal to Vermont Yankee because VY doesn't have an appropriate water quality permit. The Vermont Department of Public Service joined the lawsuit along with NEC.

What happened: As is the custom, the State extends water quality permits unless something has changed about the water discharges. For the state to require Vermont Yankee to get a new permit would cost the state time and money. Instead, the state sued the NRC for granting a license renewal to Vermont Yankee without Vermont Yankee having a new water permit. There has been no ruling on this to date.

What's amusing: As I said in my blog post about the water permit: Vermont is suing the NRC, claiming it was the NRC's obligation to make sure that Vermont Yankee had an up-to-date permit. Apparently, the state didn't care about the permit, except that the state wanted to be sure that the NRC cared.

3. State Passes an Illegal Law to Bill Entergy for the State's Costs in the Lawsuit

What: When Entergy sued the state of Vermont, Shumlin quickly had a law passed requiring Entergy to pay for the state's costs in the lawsuit.

What happened: The law was immoral, unconstitutional, and can't be enforced. That's why the state Attorney General is not attempting to enforce it. As the Attorney General admitted: the concept is shaky. He's not trying to collect from Entergy.

What's amusing: Attorney General Sorrell also said that he doesn't want to muddy the waters by attempting to bill Entergy while the judge is deciding the main case. I find this selective enforcement of laws quite upsetting (sarcasm alert!). However, non-sarcastically, I do wish Sorrell had attempted to collect the money. Entergy would have objected, and Sorrell could have found himself defending this unconstitutional law in the same court, and in front of the same judge, as the main lawsuit. Since the bill-Entergy law exists, I wish Sorrell had enforced it and "muddied the waters."

2. Reactor Operators Sue the State For Loss of Property Rights in Their License

What: Several licensed reactor operators brought suit against the State of Vermont. They claim Vermont has denied them their jobs and taken their property rights in their licenses, without due process.

What happened: The lawsuit is in front of Judge Murtha of the District Federal Court. He is the same judge who is hearing the main lawsuit between Vermont and Entergy. As I described in a blog post, the operators have recently asked Murtha to not dismiss their lawsuit.

What's amusing: The State wants to frame this lawsuit as a relatively frivolous suit by people who believe they have a perpetual right to their jobs. However, it is actually a suit about the lack of due process in Shumlin's attempts to shut down Vermont Yankee. Again, I do wish the Attorney General was enforcing the state law that says Entergy has to pay the State's costs in the lawsuit. If the pay-costs case ended up in front of the judge at the same time as the operator's case, the judge would have to take notice of the lack of due process and constitutionality in Vermont's dealings with Entergy. As the lawyers say: Res ispa loquitur. The Thing Speaks for Itself.

(Okay. I know that isn't what the lawyers would probably say in this case. I'm not a lawyer. However, I do think the passage of an unconstitutional Bill of Attainder against Entergy does Speak for Itself.)

1. The Big Kahuna Legal Case: The Lawsuit to Keep Vermont Yankee Operating

What: In April, Entergy sued the State of Vermont. Vermont was attempting to shut down Vermont Yankee through various legislative maneuvers, despite the fact that Vermont Yankee has a license from the NRC.

What happened: The case was heard in September, and most people assumed a ruling would come by the end of the year. It hasn't.

What's amusing: As I noted in a blog post, there are at least three legal issues in front of the judge:

1. State pre-emption of Federal regulatory prerogatives of nuclear safety.
2. State breach of contract by one-sided changes in a contract.
3. The plant's position in interstate commerce and the commerce clause of the Constitution.

The lawsuit is far from amusing: Vermont Yankee matters to this state. Are we going to be able to keep a clean in-state source of power and jobs and revenue?

However, one thing is moderately amusing as we wait for the ruling: both parties have said they would appeal. Whatever Judge Murtha decides, another judge is sure to look at his decision. So..the amusing part..why are we all waiting with bated breath to hear from him? Of course we want to know his ruling and his reasoning, but his ruling is probably just one step in a process.

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Picture of the Brattleboro District Courthouse on June 23, 2011. It is the morning of the injunction hearing. Robbie Leppzer is interviewing me, and Vermont Yankee opponents are in front of the courthouse. Howard Shaffer took this picture.

Painting: The Oxbow: The Connecticut River near Northampton, MA. Cole Thomas, 1836

Reactor Control Room from NuclearTourist

A State of Confusion: The Suit About the Water Quality Permit

In mid-November, the State of Vermont sued the NRC, claiming that the license extension granted to Vermont Yankee was not valid because the NRC did not have proof that Vermont Yankee was in compliance with the Clean Water Act.

Actually, the anti-nuclear group, New England Coalition (NEC), started this suit, and the state joined in. Conservation Law Foundation (CLF) is acting as the lawyer for NEC. The Vermont Department of Public Service is pursuing this suit, along with NEC/CLF.

Meanwhile, several other groups have joined the lawsuit: New York State, Riverkeeper, and Scenic Hudson have asked to be friends of the court. The Brattleboro Reformer has an excellent article on the lawsuit and the various parties to it.

If you can figure this one out, please tell me. If Vermont Yankee did not have an appropriate water quality permit, why didn't the state do something directly about it? As the Reformer article notes: Under the doctrine of "cooperative federalism," states are allowed by choice to enforce standards such as those set out in the Clean Water Act. In fact, states are allowed to impose even more stringent standards than required by federal law.

In other words, the state had the power to enforce permit requirements. A state can even enforce special permit requirements. For example, cars sold in California need to meet stronger pollution control standards than the national standards set by EPA.

For some reason, though, Vermont is suing the NRC, claiming it was the NRC's obligation to make sure that Vermont Yankee had an up-to-date permit. Apparently, the state didn't care about the permit, except that the state wanted to be sure that the NRC cared.

I don't understand it. Or maybe I do.

Scuttlebutt

Okay. I am not a lawyer, and I don't understand this one. However, the scuttlebutt I have heard is that the state extends water quality permits routinely, unless something is changed, because it costs everybody an arm and a leg to actually reapply and re-assess such a permit. Apparently, the state made the decision (sometime in the past) that nothing much had changed at Vermont Yankee, and the water quality permit could be extended. Then, just a few months ago, with the change of governor, the state suddenly had a change of heart. The state was shocked, shocked to discover Vermont Yankee was operating on an extended water quality permit! As a matter of fact, they sued the NRC about it.

As I said, I am not a lawyer, and I am in state of confusion about this one. I thought I might try calling lawyers about it, but decided that even the lawyer's answers would be beyond me. If Vermont Yankee didn't have an appropriate permit, why did the state let them operate? If Vermont Yankee did have an appropriate permit, why is the state suing the NRC?

It doesn't make any sense, but at this point, "not making sense" is what I expect from the current state administration in its dealings with Vermont Yankee.

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The Oxbow: The Connecticut River near Northampton, MA. Cole Thomas, 1836

The Casablanca graphic is free-floating around the web, shocking as that is.

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.

Beyond the Federal District Court Decision. Guest post by Howard Shaffer

When it bought Vermont Yankee in 2002, Entergy agreed to apply for Certificates of Public Good from the Public Service Board. It applied for and received certificates for a power up-rate and for used fuel storage in dry casks. It also applied for a certificate for operation after March 21, 2012.

The Public Service Board held hearings on the certificate for continued operation, and these hearings were apparently completed. Thus, the Board is ready to either issue a certificate or refuse one. I expect the Board will not act until the Attorney General reviews the District Court decision and officially advises the Board what actions it may take. Then the Board would either issue a Certificate of Public Good, issue one with conditions, or refuse to issue one.

There are a number of factors the Board may consider while deliberating on whether to issue a certificate. Let us evaluate some of these.

Safety

One thing the Board cannot consider is safety!!

The environment

The plant has a forty-year record showing no negative effect on its environment, as is required by its license. No basis here for "not in the general good."

The water quality permit

The Public Service Board and plant opponents are suing the Nuclear Regulatory Commission claiming that its extension of Vermont Yankee’s license was invalid because the application did not contain proof of compliance with the Clean Water Act. The plant currently operates under an extension of its water quality permit from the Vermont Agency of Natural Resources.

To us non-lawyers, this is a murky business. If the plant’s current permit is not valid, why does the State let the plant operate? On the other hand, if the plant does have a valid permit, why sue the NRC? Moreover, if the claims in the suit are valid, how come there was no action on this during the five years the NRC was considering the license extension? In the end, it is difficult to see why this is the business of the Public Service Board rather than of the permit issuer, the Vermont Agency of Natural Resources.

If the suit fails, there is no basis for a negative finding because the plant is still required to obey the terms of the permit without any Board intervention. If the suit succeeds, then the status of the water quality permit becomes irrelevant.

Economics

Vermont utilities will be buying no power directly from Vermont Yankee after March 21, so the price of its electric power is irrelevant. The price of electricity for Vermont rate payers will be based on the wholesale market rate determined by the grid operator. Part of this grid power will be from Vermont Yankee, and its wholesale price will be higher than the contract price paid before March 21. Vermont utilities have made no new contracts with Vermont Yankee, apparently expecting the plant to close down.

Vermont ratepayers may, however, benefit from the agreement made at the time Entergy purchased the plant. Vermont utilities will get half the profits realized at any wholesale price above 6.5 cents per kilowatt hour.

Vermont Yankee has a large payroll and purchases many services in Vermont. In addition, the plant pays a large part of the cost of the Emergency Plan for the area around it. Brattleboro and neighboring towns are required to have a plan because of the railroad, among other things. It seems the Board could find that the economic impact of Vermont Yankee is positive.

Reliability

The plant has been very reliable. Reliability affects the price the plant has to charge, and this affects profits. Lack of profits would mean that the revenue expected from the above 6.5 cents sales would not be received. It would seem that possible lack of expected, but not guaranteed, revenue is not a basis for a finding of “not in the general good.”

Esthetics

There have been no complaints of noise or other esthetic problems. The plant erected a fence to hide the Dry Casks from being seen from the river, the far shore, or the field north of the plant. It does not seem there is a basis for finding negative esthetic effects.

Conditions

The history of actions and legal obstructions by plant opponents may cause the Board to require improved communication with the public as a condition of granting a Certificate of Public Good.

Examining the Court’s Decision

The news has carried stories since the District Court decision reporting that State agencies are researching ways to prevent plant operation. It remains to be seen what “rabbits will be pulled out of what hats.”

Much about politics, but little about fish.

Herring larva in drop of water
Matchstick for comparison

River Water, Sea Water and Nuclear Plants

My article Keeping cool under pressure describes the many ways that "water quality issues" are used by states to attack the continued operation of nuclear power plants.

 Vermont Yankee, Oyster Creek, Indian Point, Turkey Point, Diablo Canyon, and Columbia Generating Station have been accused of overheating rivers and/or causing the death of billions of fish.  Well, the death of billions of fish eggs or larva (larva are newly-hatched fish).  These accusations have closed down plants or made them far more expensive to operate.

My article appears in the May 10 edition of Nuclear Engineering International Magazine. The section about  Turkey Point is a separate call-out in that article, due to the unusual canal-based  cooling at Turkey Point. 

In reality, the reason most fish eggs don't grow up to be adult fish is--other fish.  Fish eggs are an important food source for fish, so fish lay thousands of eggs. An American Shad lays about 30,000 eggs per year.  A salmon lays a more modest number, around 3,000.  A fish egg usually does not become an adult fish, and this has nothing to do with power plants.  It's about other fish: the fish that like to eat fish eggs.   

Some links

I am always very pleased to write an article for an important magazine such as Nuclear Engineering International.  However, "read my article" seems a rather thin blog post.  So I finish this post with a couple of links that can supplement my magazine article.

Diablo Canyon: The owners of this power plant recently announced that the plant would close by 2025. This article describes the upgrade-your-cooling-system issues the owners would have faced if they had chosen to stay open.
http://www.sanluisobispo.com/news/local/environment/article39459930.html

Indian Point: The plant has ristorph screens and proposes adding wedgewire screens.  Opponents continue to push for expensive cooling towers, but offer no reason to believe that cooling towers will be better for the fish. http://www.lohud.com/story/opinion/contributors/2014/04/26/indian-point-entergy-wedgewire-screens-cooling-towers/8238627/

Vermont Yankee: Vermont lost a lawsuit that asked the NRC to deny Vermont Yankee's license extension because Vermont Yankee didn't have the proper state-level water permit.  Even some of the plant opponents said that such concerns have to be raised before appropriate commissions, rather than in lawsuits. http://yesvy.blogspot.com/2012/07/vermont-loses-lawsuit-against-nrc-about.html#.V37lAjYXH3F

Oyster Creek: State of New Jersey closes plant, ostensibly to protect Barnegat Bay.
http://www.nj.gov/dep/barnegatbay/plan-oystercreek.htm

Columbia Generating Station: This blog post has an excellent graphic that compares the water use of the power plant with the volume of water flowing through its water source, the Columbia River, near the plant. https://northwestcleanenergy.com/2014/11/01/environmentalists-need-to-decide-if-science-matters-or-not/

Turkey Point: There is no evidence that any effluents from the plant  or the plant canals will  harm drinking water, or will affect Biscayne Bay.  Still,  some groups are suing the plant for causing vaguely-stated environmental harm. http://www.nytimes.com/2016/03/23/us/nuclear-plant-leak-threatens-drinking-water-wells-in-florida.html?_r=1

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I enjoyed putting these supplemental links together, but I do hope you will read the article itself: Keeping Cool Under Pressure. 

The River, the Shad and the Water Permits

About the River

Just now, I published a blog post called The River and the Rhetoric--Who Speaks for the River.  This post was mostly about the Sage Alliance plans for a flotilla-based protest of Vermont Yankee, and about the Connecticut River Watershed Council, an anti-Vermont Yankee advocacy group.

I thought I needed another post about the river itself.  Let's start with the idea that the shad are disappearing.  Well, they are not.  It's a record year for shad on the Connecticut River, with one million returning to spawn.  I am sure you will enjoy the article in the Hartford Courant.

In contrast, during our debate at University of Vermont in February, 2011, Arnie Gundersen claimed that there were 16 shad in the Connecticut River.  I just couldn't resist including this clip of the debate, since there are actually a million shad in the river this year.



It's also worth noting that the decline or rise of the shad may be based on the status of the pumped storage plant downstream from us, in Massachusetts.  Massachusetts environmentalist Karl Meyer writes about the devastating effect of the Northfield Pumped Storage project on the fish in the river.  He wrote this in response to an earlier article by David Deen. David Deen is one of the main speakers at the Sage Alliance anti-Vermont Yankee flotilla.  Meyer's article is It's about the river AND the fish

Water Permits

It's also worth adding a reminder about the Vermont Yankee water quality permits, since the flotilla is focusing on this issue. The Vermont  Department of Public Service lost a recent lawsuit about water permits. The Department had sued the NRC, claiming that Vermont Yankee should not have been granted a license renewal because the plant water quality permit was out of date. They lost.  I blogged about the water permit lawsuit here.

The River and the Rhetoric--Who Speaks for the River

Protests On the Water

Connecticut River.  View from near my house.
My river runs through it.  It's not just their river.

The Sage Alliance is planning an anti-Vermont Yankee flotilla tomorrow on the Connecticut River.  The title of their rally is Our River Runs Through It: Flotilla and Rally to Stop VT Yankee Pollution   The opponents continue to assert, in word and action, that Vermont Yankee thermal pollution is killing the fish in the Connecticut River.

As a matter of fact, Arnie Gundersen has stated that there are only sixteen shad left in the Connecticut River.  My blog post about this statement: Hot Climate and Cold Fish: Gundersen's Debate Misstatements received over thirty comments.  Most of the comments told me that Gundersen was right and who was I to say that he was wrong?

Let's start with "Who am I to say Gundersen is wrong?" Well, I live a hop and skip from the river, which is more than Gundersen can say. More particularly, let's look at the people who claim to care about the Connecticut River.

Graphic from Watershed Council website

The Connecticut River Watershed Council

David Deen, a Vermont Legislator and river guide, is River Steward for the Upper Valley of the Connecticut River Watershed Council.  Deen will be one of the key speakers at the anti-Vermont Yankee flotilla.  The Connecticut River Watershed Council paid for reports that claim that Vermont Yankee is "baking" the wildlife.  A report issued in August received much media attention. This article in the Brattleboro Reformer describes Deen going to Entergy offices with cookies, and trying to hand them the report.

Interestingly, only one media outlet, WCAX, included this quote from Deen about the report: "We are not saying that Entergy is in violation of their permit. But what we are saying is that the formula that the permit is based on, ANR is not collecting a critical piece of data," said David Deen of the Connecticut River Watershed Council.

I thank Adam Sullivan and WCAX for putting the Watershed Council's cookie-baking in context.  Entergy is not in violation of their permit.  The Watershed people just don't like the permit.

Who is the Connecticut River Watershed Council?

When I first heard of the Watershed Council, I thought it was a consortium of government entities that are affected by Connecticut River watershed issues. After all, watersheds cross county lines, township lines, state lines.  A council of government agencies is usually required to manage a watershed properly.  The title of this organization would lead a person toward that conclusion.

Nothing could be further from the truth.  This is an advocacy organization, like the Sierra Club or VPIRG.  Its name is as clever as VPIRG's name: Vermont Public Interest Research Group.  How many headlines have I read saying "Research Group says VY should close" (or words to that effect).  The "research group" was VPIRG, of course.  Naming an organization well can be a great advantage.

I should have guessed the Watershed Council was an advocacy group.  Deen is a River Steward with the group. Most government programs have "chairpersons" or "planning specialists."  They don't have River Stewards.  That's a title from Merry Olde England,  or maybe from Tolkien.

The Connecticut River Joint Commissions

Map of the Connecticut
From the Connecticut River Joint Commissions

In contrast, there is an official body concerned with Connecticut River watershed issues.  The Connecticut River Joint Commissions consists of legislative advisory bodies concerned with the Connecticut River. The Joint Commissions were set up by the New Hampshire and Vermont legislatures.  Fifty three Towns (in Vermont and New Hampshire) border on the Connecticut.

River management is divided into Local Committees, each responsible for understanding and advising on a section of the river. The selectmen of each town appoint up to two members of the Local Committee.  It is truly a citizen's advisory body, and does a great deal of planning.  For example, the Water Resources Management Plan provides significant guidance for many topics along the river.

The Connecticut River Join Commission holds meetings and work weekends.  It advises on permitting, boat safety, and non-point-source discharge concerns.



Who Speaks for the River?

The Watershed Council claims to speak for the Connecticut River. To some extent, it may.  It has paid staff, but it is also a volunteer group, and volunteer groups are important.  However, in this case, the group has become self-important, constantly attacking Vermont Yankee.  For example, the group claims that that the thermal plume from Vermont Yankee can be detected fifty miles downstream to Holyoke, Massachusetts. Considering that the river flows through Vernon Dam and is diverted to the Northfield Pumped Storage plant before getting to Holyoke, a thermal plume visible that far downstream is improbable, to say the least.

 The Watershed people paid for a study that claimed the plume was visible and the delta-T (temperature change) remained in the river fifty miles downstream. I find this study unconvincing, as it mixes critiques of computer models, dye-tests in the river, and measurements. It seems to claim the only thing that could be heating anything downriver is...the thermal plume from Vermont Yankee.  I admit, however, that I am not a hydrologist.

To me, the study looks like a mish-mash with an agenda. The only thing the study considers is the thermal plume from Vermont Yankee.  Any temperature change is because of the thermal plume from Vermont Yankee.  Pumped storage...not mentioned.  Evaporative cooling from the river...not mentioned. Sunny days, rainy days...not mentioned. Mt. Tom coal-fired plant upriver of Holyoke...not mentioned.  Vermont Yankee controls all. Or at least, it controls the entire hypothesis.  No alternate explanations need apply.

On the basis of this work, the group now acts as if it is a fact that thermal plumes can survive dams, pumping stations, pumped storage reservoirs, and fifty miles of river.  This is advocacy gone mad, in my opinion.

The Commission Speaks For Most of Us

In my opinion, the Watershed Council  group and its Stewards have their own agenda, which seems to have very little to do with what happens on the  Connecticut River.  On the other hand, the Connecticut River Joint Commissions are made up of local people who do not hold archaic titles. These people are far more likely to speak for the river, in my opinion.

And they speak for me.  After all, it's my river, too.

A New Blog at Vermont Law School

The Announcement

Two days ago, Vermont Law School (VLS) announced they were starting a blog about the Vermont Yankee law suit. The announcement was quickly picked up by the Burlington Free Press, and you can read the Law School blog here. I have also added it to my blog roll.

As a blogger, I would call it a weak blog. That is not a comment on the views expressed but on the shallowness of the blogging. There' s one blog post by Pat Parentau, there's a reprint of a Vermont Public Radio interview with Entergy's lawyer, Cheryl Hanna, and there are links to several posts by Donald Kreis. These posts previously appeared in Vermont Digger: the most recent of these posts is An Inconvenient Truth: Entergy Might Win.

I feel as if someone at VLS said: "You know, we should be blogging about that lawsuit. We've been advising the legislature about it forever, so we should really get out there with a blog." So they threw some old posts together, and presto, a blog!

Radio Mistakes

So far, the VLS blog doesn't have much value-added, but that may improve. Pat Parentau's post is new content, at least. I find Parentau's arguments a bit muddy. However, I am also prejudiced by the fact that he made so many mistakes on a radio show recently.

Parentau was on WCFR on May 5, along with some friends of mine such as John McClaughry. On that show, Parentau claimed that several things had "disillusioned" Vermonters and caused Vermont to pass Act 160. (Act 160 took power from the Public Service Board and gave it to the legislature.)

According to Parentau, three things that caused the legislature to pass Act 160 were:

• the cooling tower collapse (2007),
• the tritium leak (2010)
• the "lies" about the underground pipes (2009).

However, Act 160 was passed in 2006, before any of these things happened!

I have a hard time taking a person seriously when he has the event sequence completely backwards. I couldn't believe my ears, and had to check with other people who were listening to the radio program. Did Parentau really say those things? The other people said that they heard what I had heard. However, I hope that WCFR posts a tape or transcript of the show so I can check further.

The VLS Blog Could Be Good

VLS started a blog. It isn't very good. So why do I care?

The problem is that the lawsuit situation in Vermont is getting out of hand. Lawsuits are breeding like rabbits--the kind of rabbits that live where there aren't enough natural predators. I want to blog about the lawsuits, but I am feeling overwhelmed by the number of legal actions (and by the fact that I'm a not a lawyer, I'm a chemist). Here's a list of existing lawsuits as I understand them now.

• The main Entergy lawsuit against Vermont
• The Entergy request for injunction, so that Vermont does not take action while the main lawsuit is pending
• Vermont's answer to the request for injunction.
• Massachusetts joining the main lawsuit on the side of Vermont.
• Various groups (VPIRG, NEC, CLF) attempting to enter the main Entergy lawsuit on the side of Vermont (as intervenors) and being turned down by the court.
• The same groups filing Amicus Curiae briefs.
• A separate lawsuit claiming that Entergy didn't apply for a water quality permit. This lawsuit is against Entergy, brought by another state agency in Vermont.
• Various groups bringing actions against the NRC, saying that they shouldn't have given Entergy a license extension because of the supposed lack of water permit, or Fukushima, or something. I lose track of these anti-NRC actions very easily. They come so fast and furious around here.

There's more. The Attorney General of Vermont is preparing some kind of suit about the piping. Just a bit late, hey? Also, I think the state passed a Bill of Attainder against Entergy and I want to blog about that.

I would welcome a respectable blog by lawyers about the Vermont Yankee legal situation, even though the VLS lawyers are on the other side of the fence. What I see is something quite different. The VLS blog is a "we should be blogging, right?" blog, practically devoid of content, except for reprints of old articles.

Oh well. I think it is going to be up to me to blog about all these rabbits--I mean, all these lawsuits. I hope the VLS blog can become useful, but so far...well, not really.

Photo of Oakes Hall at Vermont Law School from Wikipedia

Rabbits overrunning the University of Victoria campus, from Wikipedia

Decommissioning Panel and Appointments: Good, Bad and Ugly

Appointments Thick and Fast

With Vermont Yankee shutdown coming soon, the state government is getting busy appointing people to advise about, supervise, and generally harass the decommissioning project.  Okay, okay, maybe that's too strong a way to describe it.  Instead, perhaps I can just borrow the headline from a recent article in the Greenfield, MA, Recorder. Anti-nukers on Vt. Yankee Advisory Panel. 

Well, that was a short blog post.  I guess I can quit now...

No, wait!  I still have things to talk about.  There are good things, there are bad things, and there are...ugly things.

Smiley from Wikipedia

The Good

The New Panel: The old Vermont Nuclear Safety Advisory Panel (VSNAP) is being replaced by the newly-mandated  Nuclear Decommissioning Citizen Advisory Panel.  Howard Shaffer describes the new panel in his blog post at ANS Nuclear Cafe: The Latest Sop to Nuclear Opponents.

(Gosh, the titles of the links aren't getting any better, are they?)

In his post, Shaffer notes that the old panel was pretty much a straight Vermont-Yankee-bashing experience.  The new panel may be better. The panel is larger, and includes representatives from Entergy and from the Vermont Yankee union (IBEW). Also, there will be representatives from neighboring states. Hopefully, the presence of these panel members will keep the panel from being a complete anti-nuclear attack-dog,  the way VSNAP was in the past.   As Shaffer describes it in his post, in the days of the VSNAP panel: The plant was in the position of being a witness to be cross-examined. There was no appeal to the panel’s findings. The meetings were covered in detail by the regional press. The panel, in effect, became a vehicle for anti-nuclear publicity.

With an expanded membership, hopefully the new decommissioning panel will be more than a kangaroo court.

The New Engineer: Vermont has always had a state nuclear engineer to advise the legislator.  In my opinion, Vermont didn't always pick the most qualified person, but that is just my opinion.  To my surprise, the newly-appointed state nuclear engineer is actually a qualified nuclear engineer. Oops, I forgot. The "nuclear engineer" job title has been changed to "decommissioning coordinator."

In the Rutland Herald (reprinted in The Recorder), Susan Smallheer reports about the new hire: Get to know Vt's decommissioning coordinator.  Anthony Leshinskie is a nuclear engineer, who used to work at Palo Verde.  In the article, Leshinskie is quoted as saying that Vermont Yankee appears to be a well-run plant, and he does not see the work force as demoralized. He notes that Entergy is not scrimping on continuous training (which makes the workers more attractive to new employers). Leshinskie said he was concerned that his role would be "anti-nuclear" but is now reassured that his job is technical, not political.

Ray Shadis, a long-time nuclear opponent, doesn't seem completely happy with this appointment. A quote from the Smallheer article:  What Vermont or any ‘reactor-occupied community’ does not need is a bureaucratic pussycat,” said Shadis. (Shadis did not actually accuse Leshinskie of being a pussy-cat, but Shadis is obviously worried about something here.) Shadis emphasized that he believes that  a state nuclear engineer should be a critic.

Frowny 
from Wikipedia

The Bad

Governor Shumlin, the President Pro Tem of the Senate, and the Speaker of the House appointed the six citizen panelists, all of whom are serving three or four-year terms. Vermont Business Magazine names the panelists in the article Shumlin, Campbell, Smith announce appointments to the Nuclear Decommissioning Citizens Advisory Panel. As far as I can tell, a major qualification for these appointments was that the panelist was opposed to Vermont Yankee.

One of the panelists is David Deen, a legislator with a long history of opposing Vermont Yankee. He claims that the plant overheats the Connecticut River. In this article Deen describes Vermont Yankee as operating under a "zombie" water permit. He claims it has a fifty-five mile thermal plume that extends way downstream, keeping its thermal integrity of heating the river...all the way past the Vernon dam.

A second panelist, Derrik Jordan, is described as "a musician and social activist" by the Speaker of the House, who appointed him.

I don't know everyone on the panel, but I fear that the ones I don't know are probably of the same opinions as the ones I do know. For today, however, enough is enough.

The Ugly

Gargoyle, Wikipedia

Back in the days when the chairman of VSNAP was appointed by  Governor Jim Douglas, a Republican, the VSNAP meetings were a complete zoo.

At one meeting, people came in costume. A costumed man and woman pretended to have sex while pro-nuclear people were speaking, distracting the crowd.  At other meetings, members of the panel paced around and shouted "I am tired of being lied to!" They shouted down  the chairman, who was attempting to keep the panel moving by Robert's Rules of Order.  In another case, a panel member physically wrestled the microphone away from the chairman.

I was pretty naive then, and I couldn't believe what I was seeing.  But I saw it.

The meetings calmed down when the chairman of VSNAP was appointed by Governor Shumlin. There was no longer a reason to intimidate him or her. When the chairman was appointed by Shumlin, it meant that the agenda could be followed, with minimum interruptions.

My fear of the ugly. Now we have Entergy members and union members on the panel. That could be great or not-great. Great: maybe the new members can contribute.  Not-great: once again, the panel includes people worth intimidating

Will the bad old days come again?  I hope not, but I fear that they may.

Acid and Air, the Environmental Effects of Non-Nuclear Electricity: Guest Post by Stuart Endsley

Stuart Endsley

My name is Stuart Endsley and I am in favor of granting a permit to Vermont Yankee. Over the past 32 years, I have worked in many types of power generation facilities -- both nuclear and non-nuclear.

I don’t need to speak of the economic benefit of Vermont Yankee since many business leaders have already done so. Nor do I need to speak about the great benefit local charities receive, you’ve heard from them as well. You, as board members, are smart individuals, and I’m certain you recognize the public good Vermont Yankee provides in regard to those issues.

Instead, I would like to speak of my personal experiences working at different types of power generation facilities -- the facilities that would most likely replace much of the energy generated by Vermont Yankee should it close.

I would like to tell you about a fossil plant I worked in last February where after just six weeks the paint on my car was damaged by the acid rain coming from the stack. The pollution that damaged my car does not know state borders and simply goes wherever the wind blows, including Vermont.  This is certainly NOT in the public’s good.

I would also like to mention a Biomass plant, a so-called “Green Plant,” that I worked in a few years back.  After just two shifts, the caustic chemicals used in the scrubbers ate up the threads in the soles of my shoes causing the soles to fall off. These chemicals were found on the walkways and catwalks and when it rained they simply went down the street and ultimately into the ground water which also doesn’t recognize state borders.  This is certainly NOT in the public’s good.

I’ve worked at wind turbine projects in Iowa, Minnesota, Oklahoma, California, and Texas. At each of these sites I found dead birds that had been killed by the turbines. These birds did not know state borders either and some of them may have come from Vermont. Again, this hidden side effect of wind energy is certainly NOT in the public’s good.

And what about the coal plant in southern Nevada with tens of acres of fly ash containing arsenic and God knows what other carcinogens?  All in public view where the winds were free to carry it where they pleased. Most certainly NOT in the public’s good.

So I close my testimony by asking each of you to consider the true environmental impact of these alternative sources of energy.  I encourage you to personally visit some of these plants to see first-hand, as I have, the impact of these plants in regards to the air we breathe, the water we drink, and the wildlife we enjoy.

-------------

Stuart Endsley works at Vermont Yankee.  He gave this statement at the Public Service Board's November 19 interactive TV hearing on Vermont Yankee's Certificate of Public Good.  He was kind enough to send me a copy of his testimony.

Slow Renewable Growth Means We Must Retain Existing Power Sources: Guy Page Guest Post

With renewable growth slow, Vermont and New England must retain existing, diverse power sources

In an April 13 Associated Press story, a prominent renewable energy advocate said Vermont’s wind power industry is “just taking a little hibernation here as federal policy gets the tax credits right.”

While Vermont waits for Congress to act, now is a good time to examine the status of the state and regional supply of low-cost, low-carbon, reliable electricity. Vermont’s power needs changed dramatically in March 2012, when Vermont Yankee, per its contract, stopped providing one-third of the state’s power – every kilowatt of it low-carbon and low-cost. But not to worry, Vermonters were assured: new, renewable power would fill the gap.

Slow Growth

Three years later, the promise is being fulfilled slowly, and with great uncertainty. Based on state, utility and media sources, here’s an update on instate renewable power generation built since March 2012:

• Three ridgeline industrial wind turbine developments (in Lowell, Sheffield, and Georgia) contribute about 4% of the state’s total electricity load.
• A rapid proliferation of photovoltaic solar power generators, from small rooftop projects to big developments, contributes 1-2 percent.
• Four farm bio-digesters contribute about 0.2 percent, and a small biomass generator and a hydro dam total about 0.1 percent. 

By rough count, in-state renewable generation built since March 2012 comprises about six percent of total demand. Currently, only solar is growing. The others have almost stalled since January, 2013 due to opposition, weak incentives, or cheaper energy alternatives. Yet even the “Solar Express” may slow if Congress lets a 30 percent construction tax credit expire. Through 2016, for example, the builder of a $10,000 solar power generator will pay $3000 less in federal taxes. Whether Congress continues,

eliminates, reduces to 10 percent or phases out this crucial credit is anyone’s guess. Some solar experts believe the declining cost of production has moved solar power almost to the point of tax credit independence.

Wind is Treading Water

Visiting a wind turbine
In New Hampshire

The wind power industry is indeed treading water, waiting on Congress. The three projects cited above
were sufficiently completed by December 31, 2012, just in time to receive an expiring 2.3 cents per kilowatt hour Production Tax Credit (PTC). Congress has since granted the PTC a couple of grudging one-year extensions, hardly the confidence builder the industry needs. The U.S. Senate voted against a five year extension this January. Some pro-wind senators now want a five-year PTC “phase-out.”  

The owner of Vermont’s only unbuilt but permitted project – Deerfield II in Searsburg – must have a power buyer under contract before construction begins, a spokesperson told VTEP in 2013. Ground remains unbroken. A proposed Northeast Kingdom (NEK) wind farm was rejected in a multi-town referendum. Also, transmission lines in the NEK cannot accommodate another large wind power generator, a senior state energy official said last month. Finally, most of the tri-county region’s senators, newspaper editors, and development officials have publicly opposed more ridge line wind projects in the NEK.

Three serious proposals to build instate biomass-burning power plants are unbuilt due to lack of support from neighbors, power-buying utilities and/or regulators.

It's Hard to Build New, So We Need to Keep What We Have

For one reason or another, it’s hard to build new power generation in Vermont. Therefore we must protect the low-cost, low-carbon power generation we already enjoy. With the exception of encouraging the departure of Vermont Yankee, Vermont is pretty good at this. Long-term Hydro Quebec contracts were renewed, as was a permit for a biomass plant in Ryegate. Small, defunct dams are making power again. Active dams have been re-licensed. Burlington declared itself “100 percent renewable” last year after buying a large, existing Winooski River dam. Green Mountain Power has long-term contracts for New Hampshire wind and nuclear power, and owns a small share of a Connecticut nuclear plant.

Throughout New England, hydro and nuclear power plants provide base-load, low-cost, low-carbon electricity. However, their future is jeopardized by policies favoring natural gas, New England’s dominant fuel, including a New England governor’s agreement last week that called for more natural gas infrastructure but was virtually silent on retaining existing nuclear power. Vermont must urge the rest of New England to keep its low-cost, low-carbon power.

Vermont must seek new reliable, affordable, clean power. But first – let’s keep what we already have.

---------

Guy Page

Guy Page is a frequent guest blogger at this blog.  He is  Communications Director of the Vermont Energy Partnership (www.vtep.org) , a Montpelier-based coalition of individuals, businesses, and labor and development organizations promoting clean, safe, affordable and reliable electricity for Vermont. Vermont Yankee is a VTEP member.

This article also appeared in Vermont Digger and other newspapers in Vermont. 

Two Upcoming Events: VSNAP and ANS

The First Meeting: VSNAP Meeting on September 10 in Vernon

VSNAP is the Vermont State Nuclear Advisory Panel.

A few weeks ago, I wrote about the July 9 meeting of VSNAP: my post at ANS Nuclear Cafe describes the meeting. Vermont State Nuclear Advisory Panel: Safety Again!  The discussion was about safety, safety and safety.  The panel spoke as if the lawsuit hadn't happened.

The July meeting was in Montpelier, and poorly attended.  The next meeting will be at Vernon Elementary School at 6 p.m. on September 10.  I expect it to be well attended, because Vernon is near Massachusetts and many people come up from Massachusetts to protest the plant.  Many protesters live in Brattleboro, near Vernon, but even more seem to come from Massachusetts.

Liz Miller
DPS Commissioner

I suggest you come to this VSNAP meeting if you can, but remember that the opponents shout, carry signs, wear funny clothes and masks, and basically enjoy a good round of street theater.  As I wrote about the NRC meeting in Brattleboro, these meetings can be intimidating.  NRC Public Meeting In Brattleboro: The Politics of Intimidation. However, as Howard Shaffer has often said: "Nobody has ever actually hit me."

Also, the VSNAP panel is opposed to Vermont Yankee, and the crowd is opposed to Vermont Yankee.  Therefore, this meeting should be comparatively subdued.  It will be subdued compared to the behavior at an NRC meeting--that's what I mean by "comparatively subdued."

So I do encourage you to attend.

The Panel and The Plant

In June, Liz Miller lost a lawsuit against the NRC.  Miller is the chairperson of the VSNAP panel,  and she is Commissioner of the Department of Public Service (DPS). DPS had joined a local intervenor to sue  the NRC. In their lawsuit, DPS and the intervenor hoped to force the NRC to rescind Vermont Yankee's license. Their suit was based on a water quality permit issue. DPS and the intervenor lost in court.

More recently, Miller  asked the NRC to increase their scrutiny of Vermont Yankee until the NRC's work meets DPS standards for nuclear oversight.  The NRC has been reported as "cool" to her request.

Go to the meeting anyway

For nuclear supporters, this meeting will be fun if you're a masochist.

It turns out that I am invited to a reception that evening, and I won't be at the VSNAP meeting.  I will be devastated to miss it (not really!). Howard Shaffer plans to attend the VSNAP meting.

Why go?  Sheer masochism?  No.  There are reasons to go.

With any luck you might be able to convince the newspapers covering the meeting that the plant has supporters as well as ...um....detractors. Another reason  to attend is that some people from the plant are required to come to these meetings, and they like to see a friendly face in the crowd. You can be that friendly face. Also, Liz Miller is a dedicated plant opponent, but she is also a very nice person who tries to be fair to everyone who speaks.  Her behavior is another pleasant part of the meeting.

The Second Meeting: ANS Meeting in Connecticut on September 13

On the other hand, if you aren't a masochist you will enjoy attending the American Nuclear Society (ANS) Connecticut Region meeting on the evening of September 13.  As a matter of fact, I can guarantee you will enjoy the meeting, because Howard Shaffer and I will be speaking on "how to be a pro-nuclear activist."

This dinner meeting is a regularly scheduled meeting of the ANS, a professional society.  Such meetings are generally not announced to the public: they are only for society members. Guests are welcome, however, by pre-arrangement.  If you are interested in attending, please email me at mjangwin at gmail and I will put you in touch with the meeting organizers.

I hope you can come.  It will be a chance for Howard and me to come south from Vermont and see some of our supporters from Connecticut and other "points South."

Win-Win for the Governor: Win the Election and Lose the Lawsuit.

In my opinion, Governor Shumlin doesn't want to shut down Vermont Yankee.  He just wants to look as if he wants to shut down Vermont Yankee.

My reasoning is below.

Safety Regulation

In January, in federal court, Judge Murtha ruled that Vermont was attempting to shut down Vermont Yankee on the grounds of nuclear safety, and regulating nuclear safety is a federal prerogative.  Entergy had argued its case by showing many situations in which the state legislators spoke about nuclear safety, sometimes with the ironic comment that they couldn't say the "s-word" so they would have to call it "reliability."

Cavan Stone wrote a blog post on this "s-word" business The Control-H Defense. You use control-H to substitute one word for another. Do the substitution, and you aren't regulating safety at all. You changed the word.

(You can read Judge Murtha's decision and related material on this page of the Energy Education Project. )

Cherry-picking safety statements

In the Vermont brief that appealed Murtha's ruling, Vermont claimed that the judge had cherry-picked a few things a couple of legislators had said.  From those few statements, Murtha had decided Vermont was attempting to regulate nuclear safety. Vermont claimed it wasn't interested in regulating nuclear safety.  A few legislators were out of hand...said things they shouldn't have said, maybe...no big deal.  Vermont wasn't attempting to regulate nuclear safety. Nothing could be further from the truth.

Governor Peter Shumlin

Vermont claims that it wants to shut down Vermont Yankee in order to build renewables (yes, you read that right).  The desire to shut down Vermont Yankee is all about renewables, and nothing about safety. That is the main message in Vermont's appeal brief. I discuss this in my post: It's the Renewables, Stupid. Vermont Files a Brief.

Clearly, with the federal appeal coming up, Vermont is being extra-careful.  The state wants to be sure that nothing it does could give the impression that that the state is trying to regulate on the basis of nuclear safety.  Right?

Nothing could be further from the truth.

After all, the election is coming up faster than the court case, and the election is more important to Governor Shumlin.

The Department of Public Service and the NRC

Vermont is trying its hardest to look as if it is regulating nuclear safety.

Liz Miller, the Shumlin-appointed head of the Department of Public Service (DPS), recently joined a lawsuit by an intervenor.  The DPS and the intervenor sued the NRC, claiming that NRC had granted Vermont Yankee's license extension improperly, because of a water quality permit issue.  DPS and the intervenor lost the suit.

After they lost the suit, Miller asked the NRC to increase their oversight of Vermont Yankee until the NRC begins to regulate nuclear safety to DPS standards.  DPS thinks Vermont Yankee needs more oversight.

The NRC turned her down, though someone from NRC came to Vermont to explain to her how the NRC does business. You can read about this in my blog post about VSNAP, in the section on the Panel and the Plant, and in the Brattleboro Reformer article: NRC says Vermont Yankee doesn't need increased oversight.


I really tried.  I did.  I tried.  Now, vote for me.

A victory for Vermont in court will depend on Vermont proving that it had no intention of regulating nuclear safety.  It seems absurd to me that Vermont would join lawsuits against the NRC, insist the NRC isn't doing enough oversight, and so forth...while simultaneously trying to prove in court that the state has no interest in controlling or regulating nuclear safety.  If they want to win in court, the state's actions can most simply be described as "counter-productive."

In my opinion, however, Shumlin is going for his own kind of win-win.  Win the election by appealing to the part of his party that wants Vermont Yankee shut down.  Win the election by keeping the Progressive Party on his side, by showing how hard he is trying to shut down Vermont Yankee.  Every time you look around, there is his DPS, trying to protect everyone from the inadequate federal regulation of nuclear safety.

At the same time, the DPS is taking actions that will probably assure the state will lose in court, or at least, these actions will increase the probability it will lose.

 So Shumlin will have his cake and eat it too.  Win-win.  He wins the election.  He convinces everyone he is trying to shut down Vermont Yankee. But Vermont Yankee keeps operating!  Not his fault, he tried, but in the meantime, it stays as a source of tax revenue for the state, and a source of employment in Windham County and neighboring regions.  Win-win for Shumlin.

He tried.  He may succeed. Win the election, lose the court case. Win-win for Shumlin. In my opinion, at least.

Tax Revenue

This will another blog post.  Vermont Yankee recently sued the state again, this time because the state increased its generation tax by about seven million dollars a year.  I will cover this later, it's another subject.  But I couldn't write "a source of tax revenue for the state" without mentioning this.  Vermont Digger has an excellent article on the tax and the lawsuit.