Three Vermont Yankee Hearings: The Week of Living Lawyerly

The week of January 14, there are three different hearings about Vermont Yankee in three separate courts and on three separate subjects.  It is the Week of Living Lawyerly.

The hearings are in the Federal Appeals Court, the Vermont Supreme Court, and  the Public Service Board. (The Public Service Board hearing concerns the need for a new diesel generator.)

First Hearing: Federal Court

What: Federal Court of Appeals Hearing on State and Entergy Appeals

Where: 2nd Circuit Court of Appeals (in New York City)

When: January 14, Monday

Why: Judge Murtha ruled in favor of Entergy in the main federal case, and the state appealed the ruling. The state mainly challenged the part about pre-empting nuclear safety issues.  Entergy also placed two appeals before the circuit court.  The first appeal was about spent fuel rods, and the second appeal was about the NEC suit in Vermont Supreme Court.  This second appeal is discussed below, in the Supreme Court section. 

What is at stake: In the main issue, whether the Circuit Court will (or will not) uphold the Murtha ruling.  

What is at stake, part two: Whichever way the Circuit Court rules, both sides say they will appeal the Circuit Court ruling to the United States Supreme Court.  

Comments by the Blogger:

The Circuit Court calendar shows that both side have a full fifteen minutes each to present their cases.  This length of time seems to be standard for arguments before this court.  I am not a lawyer, but to me, this means that the written material in the docket is the important material.

In terms of the Entergy appeals,  Murtha granted the first appeal, and has just recently turned down the second appeal (about NEC and the Vermont Supreme Court).  I blogged about the turn-down of the appeal against the NEC case in  Hot Potato Continued.

I have some, but not all, of the docket material for the federal case (and the Public Service Board case) posted at Dockets for Public Service Board and Courts on the Vermont Energy Education Project website.

The State asked for "expedited oral arguments" in this case, with the arguments to be presented "as soon as November."  Entergy asked for more time.  The court granted the State of Vermont request for expedited oral arguments, but the arguments are being heard in January.  (Don't ask me...I have no idea what this implies.  I just thought I would mention it.)
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Vermont Supreme Court

Second Hearing:  Vermont Supreme Court

What:  Hearing on NEC Request to Vermont Supreme Court

Where: Vermont Supreme Court in Montpelier Vermont

When: January 16, Wednesday

What is at stake: A long-time plant opponent, New England Coalition against Nuclear Pollution (NEC) has asked the Vermont Supreme Court to step in and order Vermont Yankee closed. They want the Vermont Supreme Court to issue this order in accordance with a clause in the sale agreement from 2002.  The Public Service Board  and the Department of Public Service have asked the Vermont Supreme Court to deny this request.

What is at stake, part two:  If the Supreme Court were to issue an order to close down Vermont Yankee, everyone expects Vermont Yankee to appeal to federal court.

Comments by the Blogger:

I blogged about this subject extensively in Hot Potato, and Hot Potato Continued. I think that this case is a hot potato that the Public Service Board wants to throw to someone else.

UPDATE: I have put the November 29 Public Service Board statement and the Entergy request for dismissal on a new Vermont Supreme Court filings page at the Energy Education Project site.

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Emergency backup diesel generator
At a sewage treatment plant

Third Hearing: Public Service Board 

What: Hearing on Certificate of Public Good for Station Blackout Diesel Generator Docket #7964

Where: Public Service Board Hearing Room, Bank Building, Montpelier

When: January 17, Thursday

What is at stake: Will Vermont Yankee be allowed to install a new back-up diesel generator?   Vernon Dam will no longer be considered a Black Start facility by ISO-NE. (I blogged about this in Black Start, Black Out and Diesels, Some Clarity) Since the dam will not be maintained as a Black Start facility, the NRC will no longer consider it to be qualified as a Station Blackout back-up facility.  (The dam is still there, of course, and Vermont Yankee still has a direct line to the dam.)  So Vermont Yankee needs a new station black-out back-up facility.  In most cases, this would be a stationary diesel generator.

What is at stake, part two:  In most cases, getting a new back-up diesel for a power plant would be a slam dunk.  However, the Public Service Board is concerned that if it grants a permit for this piece of safety equipment,  Vermont Yankee would continue to operate.

Wait! Whoops!  That was snarky of me.

Of course, I meant to say that the Public Service Board is concerned because

Normally, the Board would not consider a petition from a company that is not in compliance with existing Board orders, unless that company also demonstrated an intent to come  into compliance. Entergy VY has not indicated such an intent here.

That's a quote from the order, and you can read the entire Public Service Board order setting up the diesel-docket here.

It is important to note that "non-compliance with Board orders" basically means...the plant is still operating, after March 21, 2012, while hearings are on-going.  The Board has several dockets about the Certificate of Public Good, and the Board claims that, according to one of the dockets, the plant is not in compliance because a new Certificate of Public Good has not been yet been granted by the Public Service Board.

Comments by the Blogger

No comment.

Hot Potato Continued: Federal Court Turns Down Entergy Injunction Request

Plant Opponent Tries a New Court

On November 29, the Public Service Board (PSB) issued a "strongly worded" but "narrow" ruling against Entergy.  In this ruling, the PSB refused to take the "requirement to have a Certificate of Public Good to operate after March 21, 2012" off the original 2002 Sale Order for Vermont Yankee.  The Board also said, however, that it  did not reach any conclusions concerning the merits of modifying or extending Entergy VY's obligations under existing Orders and CPGs.

Yes, it was a confusing ruling. A long-time plant opponent, the New England Coalition against Nuclear Pollution (NEC), looked at this ruling and used it as a basis for a suit filed  in Vermont Supreme Court.  NEC filed in Vermont Supreme Court, although active hearings were on-going at the Public Service Board and in Federal Court. In other words, NEC was trying their luck with suit in a third court.

I blogged about this opponent filing in The Very Latest Lawsuit: Opponents Will Probably Lose. I had some evidence for this.  The Vermont Department of Public Service has joined other NEC lawsuits against the plant, ever since Shumlin was elected. To my surprise, the Department of Public Service asked the Vermont Supreme Court to deny the NEC request for an injunction.  Then the Public Service Board itself asked the Vermont Supreme Court to deny the NEC petition.

One of the issues is that the Public Service Board's November 29 ruling could be read as an endorsement of third-party suits against Vermont Yankee. I wrote about this in Hot Potato and the New Request: Entergy Asks for an Injunction against PSB and Shumlin in Federal Court.   In other words, the November 29 PSB ruling could be interpreted as tossing the hot potato: Let's you (NEC) and him (Entergy) fight, and leave us (the PSB) out of it!

Entergy Tries an Old Court

As I noted in my Hot Potato post, when NEC filed in Vermont Supreme Court, Entergy filed an injunction against NEC in Federal Court. Entergy filed in the same court  that ruled for Entergy in the original case about Vermont's pre-emption of the federal prerogative to regulate nuclear safety.  The same judge (Gavan Murtha) heard the request for the injunction against NEC.  Yesterday, Murtha ruled against Entergy about the injunction.

Basically, Entergy claimed that the NEC Vermont Supreme Court filing was an end-run around the Federal Court ruling that the Public Service Board should not take action to shut down Vermont Yankee during the federal appeals process.  Judge Murtha did not explicitly agree or disagree with this analysis. However, Murtha noted that NEC was not a party to the federal suit, and that the federal court does not take action against those not involved in federal suits.  Also, the federal court usually does not interfere with state court issues.  Bob Audette at the Brattleboro Reformer describes the Judge's reasoning, including the fact that NEC asked to be a party to the original suit, but was not granted standing by the federal court.

Meanwhile, Ray Shadis of NEC issued a press release that was quoted in the Reformer: "We hope this federal rebuff will serve Entergy as an inoculation of anti-arrogance serum, but we suspect that booster shots will be needed before Vermont Yankee is history and we can move to the details of decommissioning."

Other statements by NEC echo the idea that this federal ruling is not the final "shot" in these battles. Lawyer Margolis of NEC told the Reformer that he expects Entergy to "run to the district court" if the Vermont Supreme Court orders a plant shutdown.

Vermont Supreme Court 

Ignoring the rhetoric, I interpret these statements as: "It's not over till it's over."

Indeed, it is not over yet.

The Future

The next event in this saga will be the Vermont Supreme Court hearing on the NEC request.  As noted above, both the Department of Public Service and the Public Service Board have asked the Vermont Supreme Court to dismiss the request.   (UPDATE: Entergy has also asked for the NEC request to be dismissed.  I have put the November 29 PSB statement and the Entergy request to the Vermont Supreme Court on a new page Vermont Supreme Court Filings, at the Energy Education Project.) As far as I can tell, only NEC wants the Supreme Court to take the case, and the two Vermont commissions have asked it to dismiss the case.  The Supreme Court has scheduled at 30-minute hearing on this case on Wednesday, January 16, at 2:30 p.m.

Shaffer at ANS blog: Vermont Yankee in Perspective

Howard Shaffer
March 2012 Rally

I want to recommend Howard Shaffer's excellent post at ANS Nuclear Cafe today: No Holiday from Politics. For Vermont Yankee, Shaffer covers the legal front, the legislature, ISO New England, the river, and the year ahead.  In other words, Shaffer puts many complex situations in context. Lots of good links, too.


Speaking of excellent links, the 138th Carnival of Nuclear Energy Bloggers is posted at Next Big Future.  Links to the best nuclear blogposts in the world, all in one place for your reading pleasure.

Engineering Adventures Course

I am scheduling this to be published while I am leading the first day of the Engineering Adventures with Nevil Shute course.  I will write about the course occasionally in this blog.

Since I announced it in the blog in November, several things have happened.

• The course has been filled and over-subscribed.  
• The Nevil Shute Norway Foundation discovered the course and the American librarian will attend the course and probably record it for the Society.  I am very pleased about this!  The Foundation has members all over the world. If you like Nevil Shute, I encourage you to visit the Foundation web page.
• I set up a page on my personal web page for downloads about the course.  So far, the 2-page course syllabus is at that page, as well as several articles about the R100 and R101 Airships.

Here's the letter I sent to course participants:

Welcome to Engineering Adventures with Nevil Shute.

This study group meets four Monday mornings, 9:30 a.m., at the D.O.C. House.  The first meeting is January 7 and the last meeting is January 28.

Plus, as an extra added attraction: there will be an optional fifth session, Monday February 4 at 9 a.m.  In the optional session, we will watch the movie No Highway in the Sky, starring James Stewart and Marlene Dietrich.

The course is based upon Nevil Shute's books and on our own experiences with big, complex projects.  The two books are Slide Rule and No Highway.

Class participants are expected to read both books. If you can read them before the class begins, that would be terrific.  Otherwise:

• Read Slide Rule, chapters 1-7, by the second week of class. That is the majority of the book, and it would be good if you finish the rest of the book. 
• Read No Highway, chapters 1 through 7 by the third week of class
• Finish No Highway by the fourth week of class.

The format for this course is based on Great Books of Management.  I belonged to this discussion group in California when I worked at Acurex (now part of A.D. Little consulting).  The group members were chemists and engineers.  As our responsibilities grew, we began becoming project managers. One of the senior managers started the group to help people become better managers.   We also were encouraged to take traditional courses in project management.

Great Books of Management had a simple thesis: We can learn about project management by studying fiction and non-fiction books that present typical problems.  We read Plutarch, Halberstrom, Dickens and Shakespeare.  Some of our best discussions were based on Nevil Shute’s books, and I have chosen those books for this course.

For each meeting, we spent one hour discussing the books from a management perspective.  Did people seek the right information?  Did they make appropriate decisions?  The second hour broadened the discussion to include own project histories. Faced with similar issues, did we seek the right information and make the appropriate decisions?

Engineering Adventures with Nevil Shute will follow the same format.  One hour on book discussion, one hour of our own experiences.  One hour book, one hour personal.

Read the books, prepare to share your own war stories, and be ready to have fun! I look forward to meeting you!

Why the Rush to Industrial Wind Isn't Good for Vermont: The Press Conference

At a press conference Thursday two Vermont senators announced proposed legislation for a three-year moratorium on new industrial wind development on Vermont's ridges. Rob Roper of the Ethan Allen Institute made four-minute video at the conference: it has some amazing graphics of wind development.


 

Two recent articles also cover this press conference:

Brattleboro Reformer: The Local Ridges

An article by Mike Faher in the Brattleboro Reformer describes the press conference, and connects it to the town of Windham's fight against industrial wind on its local ridges. (The town of Windham is in Windham County, which is also home to the town of Vernon and Vermont Yankee.)

Eight pro-wind groups made a lengthy statement against this proposed legislation. The groups include the local Sierra Club,  Citizens Awareness Network (their website is nukebusters.org), and  the Vermont Yankee Decommissioning Alliance. The Reformer article says:  In the groups' press release, Kilian characterized wind-power opposition as "the extreme voices of those who refuse to take responsibility for our energy future."

(Snark warning  I just LOVE it when nuclear-opponents-and-wind-promoters insult people that way. Winning people to your side by name-calling.  Go for it, guys! Do some more of this! End snark.)

Vermont Digger: The Governor's Opinion and the Bill Itself

An article by Andrew Stein in Vermont Digger includes a video of the conference, a link to the draft bill itself, and an interesting correction (the correction, IMO, is not the reporter's fault...)

Here's the correction: Gov. Peter Shumlin said on Friday that he is still vehemently opposed to the idea of a moratorium on utility-scale wind development. VTDigger originally reported that Shumlin indicated earlier this week that he was not completely opposed to the idea.  

The Digger article has a lengthy comment stream, including many comments by my friend Willem Post. Post is a world-wide authority on wind power and its problems. He has many excellent posts on wind power  on The Energy Collective website.  Thousands of people follow his posts there. He is also an occasional guest blogger on this blog.

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Rob Roper made the video above. Roper is President of the Ethan Allen Institute, and the Energy Education Project (I am director) is part of the Ethan Allen Institute.

I blogged about this press conference a few days ago: A Wind Moratorium Press Conference in Montpelier. That earlier post includes information about Vermont Electric Cooperative and wind power.

Vermont Yankee is an Asset to Vermont, and the Sky Is Not Falling: Deb Schulze Guest Post

Deb Schulze

My name is Deb Schulze.  I am a Vermont native and live in North Springfield.

I am speaking tonight in favor of granting Vermont Yankee a Certificate of Public Good.

Vermont Yankee provides safe, clean and reliable electric power.

I have observed with increasing skepticism the tactics of VY’s opponents.  These folks are trying to scare everyone into believing this plant is old and broken down, and that just is not true.

VY is like most any business, it is continually maintained and upgraded and it is also carefully monitored by the Nuclear Regulatory Commission.
Vermont Yankee has saved more than 50 million tons of carbon and other pollutants from being released into the environment.

We now live in a world of big plasma televisions, electric cars and a whole host of electronic gadgets. Our need for electricity is continually increasing.  Closing down Vermont’s largest producer of electricity (two-thirds of the in-state generation) makes absolutely no sense.

Vermont Yankee, along with and its employees and contractors provides more than $100 million per year, into both the local and state economy.  Taxes and payments to the state account for nearly $15 million.

2011, Entergy Vermont Yankee contributed approximately $435 thousand to the community through Entergy open grants, the Entergy Charitable Foundation, site sponsorships, and annual events.  This amount includes Vermont Yankee employee pledges/company match to the tune of $109,000 to the United Way.

The sky is not falling.  Through all of the negativism generated by the anti-nuke activists, Vermont Yankee has been quietly and continuously producing safe, clean, reliable power for over 40 years.

I hope you will grant it a certificate of public good so that it can continue to do so.

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Deb Schulze spoke at the Interactive TV hearing about Vermont Yankee on November 19.  Her husband, Bill Schulze, works at Vermont Yankee.  She was kind enough to share her testimony and provide this picture.

I plan to keep posting pro-VY testimony to my blog, as I can do so.  I have about twenty guest posts of testimony so far, but approximately fifty people made public statements in favor of Vermont Yankee at the two hearings.  I think the individual voices are strong, and the sum of the voices is truly powerful.  So I will keep posting them!

A Wind Moratorium Press Conference Tomorrow in Montpelier

Never a dull moment here in Vermont.  Tomorrow in Montpelier: a press conference on a proposed moratorium for industrial wind.

Cedar Creek Room at State House
Oil Painting of Battle of Cedar Creek

Wind, the Press Conference 

Two Vermont Senators are co-sponsoring a bill calling for a moratorium on Industrial Wind in Vermont.  There may be other co-sponsors also.  Senator Joe Benning (R-Caledonia) and Robert Hartwell (D-Bennington) will introduce the bill at a press conference tomorrow, Thursday, at 2 p.m. in the Cedar Creek Room at the State House in Montpelier.

 If you look at the Senate District map of Vermont, you will see that the Caledonia district is in the northern part of Vermont, on the eastern side of the state, while the Bennington district is in the southern part of the Vermont, on the western side of the state.

In other words, this is more than a bi-partisan press conference. It's practically an all-Vermont press conference. According to a Times Argus article. Vermont Senate President Campbell says there may be 18 votes for the moratorium,  which would be a majority in the 30-person Vermont Senate.  However, the Vermont House is less likely to pass a moratorium. Governor Shumlin's administration is solidly against it.

If you want to learn more about wind in Vermont, it would be fun to attend the press conference.  Here's the official press release about the conference.

Wind, the Reactions

David Hallquist, CEO of Vermont Electric Cooperative (VEC),  is not happy with ever-expanding renewable mandates. He was quoted by WCAX: VEC CEO Dave Hallquist says the utility is concerned about finding balance between rising electric rates and the adoption of a greener power portfolio.

"I don't think we've really thought this out entirely. We're kind of looking at this through different perspectives. Our perspective as the boots on the ground utility that has to carry it out says we don't know how it can work even from a physics standpoint," Hallquist said.

The VEC Board of Directors has sent a request to the Vermont legislature, requesting that the legislature not continually increase the requirements for renewables. Vermont Digger's Anne Galloway wrote Vermont Electric Co-op directors ask law-makers to put a hold on new renewable energy mandates.  Her article includes the text of the Board of Directors request to the Legislature.  The director's request for no-new-mandates is not the same as the new-wind-moratorium that the senators propose.  But the director's request is surely in the same direction. The last paragraph of their request states:

The VEC Board of Directors recommends that the Vermont Legislature impose a moratorium for a period of two years effective on January 1, 2013, on further renewable power supply mandates or sooner if the grid instability, human health impacts, and cost issues have been addressed and a transition plan is in place that considers the cost and reliability impacts of moving to higher levels of renewable resources. 

A quote from CEO Hallquist in the same article: “We observed the wind issue splitting our community....We asked ourselves, why are we doing this when it represents only 4 percent of our carbon footprint?”


Specific Wind: Facts and Quotes

The Georgia Mountain Wind Turbines were connected to the grid by December 31, enabling them to receive a 30% federal tax rebate on the project.

In Windham County, home of Vermont Yankee, the Town of Windham has been fighting against wind development. Residents were hopeful when the Vermont Department of Public Service backed the Town of Windham's fight.  However, the Public Service Board (PSB) has overruled the local citizens, at least for now.  In an article in the Bennington Banner:  (Windham) Selectboard Chairwoman Mary Boyer also said the permitting process has been a valuable experience.

"Although we were hoping that the PSB would support our right to determine our own land use as the governor has suggested, that is not to be at this time," Boyer said in a statement sent to the Reformer.

Rep Tony Klein

In contrast, Tony Klein of the Vermont legislature is all in favor of wind energy. In WCAX's article on the wind moratorium, Klein, chair of the House Natural Resources and Energy committee, was quoted as follows: "I think it's (a wind moratorium) about the most anti-business statement the Legislature could make," said Rep. Tony Klein, D-East Montpelier.

The Press Conference

Stop in at the Cedar Creek Room tomorrow afternoon, if you can make it, and attend the press conference.  It should be an interesting afternoon.