Vermont Yankee: Safety, Reliability and Pre-Emption

Wink-wink, nod-nod

Since the NRC has the sole responsibility for regulating nuclear safety, the legislature of the state of Vermont had to judge Vermont Yankee on some other grounds. They chose "reliability." Is the plant reliable? States are generally able to license or not-license power plants on the basis of their cost and reliability.

Since Vermont Yankee has one of the highest capacity factors among its sister plants nationwide, and was doing a 530 day breaker-to-breaker run at the time, the legislature was kind of in a quandary. How to shut down a reliable plant on the basis of reliability?

Wink-wink, nod-nod. I have sat in many hearings where the legislators talk in fearful terms about tritium leaks, soil near a leak containing strontium (which will attack the bones of our children), a cooling tower collapse. None of these incidents caused the plant to go off-line. None of these were reliability issues.

The legislators would then turn to the audience and said: "Of course, we can't use the s-word (safety)." After a smile and a nod to the audience (they actually didn't wink), the legislators would go right back to why the plant had to be shut down for the safety of Vermont residents.

All the issues they were talking about did not affect the reliability of the plant, and the NRC assessed them as posing no danger to the public (safety). Note: The strontium-contaminated soil near the leak was taken to a radiological waste disposal site. It was about two pick-up truck loads worth of soil, according to plant spokesmen at the time.

The Pre-Emption Issue

The issue of Vermont's pre-emption of the NRC obligation to regulate plant and regulatory safety is a major contention of the Entergy lawsuit. I wrote a blog post about State's Rights and the NRC: it was posted at the ANS Nuclear Cafe site today. The ANS site gets high volumes of traffic, compared to my own blog. Please visit!

49th Carnival of Nuclear Energy Blogs

Welcome to the 49th Carnival of Nuclear Energy Blogs

I am delighted to be the host for this week's Blog Carnival. The Carnival is a true extravaganza of information, commentary, and even wisdom about fear of radiation. We'll start there.

Fear of Radiation and Effects of Fear

Why is there irrational fear of radiation? At ANS Nuclear Cafe

In a first for the ANS Nuclear Cafe, four contributing bloggers do a group post on this subject. They ask whether improvements are needed in explaining the significance of the numbers to the public. The answer, as an outgrowth of media and public confusion related to the ongoing Fukushima crisis, appears to be a resounding "yes."

The contributors are Stewart Brand, ecologist; Cheryl Rofer, chemist; Steve Aplin, management consultant, and Mimi Limbach, public relations executive. Dan Yurman of Idaho Samizdat pulled the group together and wrote the introduction.

Fear of Radiation is Killing People and Endangering the Planet Too. Rod Adams at Atomic Insights

This post is a reprint of a 1998 paper written by Ted Rockwell. In light of the reminders of the 25th anniversary of Chernobyl - with outrageous claims of long term health effects - and the continued confusion about the evacuation zone around Fukushima it seemed important to share this work more widely. Radiation is something to be understood, not something to be feared. Its health effects have been widely and extensively studied for more than a century.

Shaping the Energy Debate: Brian Wang at Next Big Future

About a month ago, Brian Wang wrote an excellent post on deaths per TWh for different energy technologies. In these week's post, he notes that even Greenpeace is quoting his earlier post. With careful research and honesty, pro-nuclear bloggers are shaping the energy debate.

Fukushima

Some New Directions Post-Fukushima: Posted by Gail Marcus at Nuke Power Talk

In this post, Gail Marcus looks at the future of regulation and research after Fukushima. Emphasis will probably shift to research and regulation about the systems that led to the accident (back-up generation and fuel storage), but research on non-traditional nuclear designs will also get a boost. Pebble Bed reactors, for example do not use water for cooling.

Did a steam geyser destroy fukushima #4 reactor building: Guest Post at Next Big Future

At Next Big Future, Brian Wang hosts a guest post by Chris Phoenix. The usual explanation for the explosion at reactor 4 is a hydrogen explosion, but Phoenix argues for a steam geyser from an overheated fuel pool.

The Impact of Fukushima on the U.S. Nuclear Renaissance: Guest Post at Cool Hand Nuke

At Cool Hand Nuke, Jeff Madison hosts a guest post by Dan Yurman on the probable effect of Fukushima on new builds in the United States. The South Texas Project will affected by TEPCO issues (TEPCO was one of the backers for that project). Most other projects in the United States are unlikely to be affected.

Nuclear Emergency at Fukushima to continue for six to nine months: Brian Wang at Next Big Future

Brian Wang notes that the Fukushima reactor emergency will continue for another 6-9 months before TEPCO will be able to get to a cold shutdown.

Nuclear in the Future

Several posts describe nuclear energy prospects for the future, and how people in the field look at their chosen profession.

An alternative Long Term Energy Plan for Ontario—an 80/20 nuclear/hydro generation mix by 2045: Guest Post at Canadian Energy Issues

Canadian Energy Issues hosts a guest post by Donald Jones. Ontario’s power system could be entirely and economically fossil-free by 2045. For this to happen, all nuclear refurbishments and new build must ensure load-following and -cycling. According to retired nuclear industry engineer Donald Jones, it is possible to refurbish the Darlington and Bruce B CANDUs so that they can load-follow and -cycle. And ALL new nuclear must have this capability. It remains to be seen if the province has the political will to make it happen.

Renewables did not surpass nuclear in 2010 David Bradish at NEI Nuclear Notes

NEI Nuclear Notes goes after Cleantechnica and the Worldwatch Institute for the claim that renewables surpassed nuclear in 2010. It's that old game again: installed-capacity for renewables is definitely high. But power-produced for renewables is low.

Green Nuclear Energy: Margaret Harding at 4 Factor Consulting Blog

On her 4 Factor Consulting blog, Margaret Harding tells the story of one woman's journey into nuclear energy. I may be a "shill for the industry" but I am a nuclear engineer and proud of that fact. I believe that nuclear energy is clean and green. Fukushima has done nothing to change that.

Entergy Files Suit: Meredith Angwin at Yes Vermont Yankee

I give an overview of the lawsuit Entergy filed against the State of Vermont. Vermont is attempting to shut down Entergy's Vermont Yankee power plant, despite the fact that the NRC recently extended its operating license for twenty years. The Entergy suit hinges on breach of contract and federal pre-emption of the regulatory powers of the NRC. I also have several follow-up posts exploring different aspects of the lawsuit, for example, Entergy and Vermont Part 1: Act 160. More posts to come, of course.

International Isotopes on track for NRC license in 2012: Dan Yurman at Idaho Samizdat

Dan Yurman at Idaho Samizdat reports that International Isotopes on track for NRC license in 2011 for uranium deconversion and fluorine extraction facility. The firm has applied for a DOE loan of $97 million for a $125 million plant to be built in Hobbs, NM, just a few miles from Urenco’s newly operational uranium enrichment plant.

Kurt Cobb on Resources, Energy, Thorium and Molten Salt Reactor Technology: Charles Barton of Nuclear Green

Charles Barton points to many parallels between the ideas of Energy writer Kurt Cobb, and Nuclear Green. The primary difference is that Nuclear Green is far less pessimistic about the future of Molten Salt Reactor technology.

Nuclear Fusion

Lawrenceville plasma physics continues to work toward nuclear fusion: Brian Wang at Next Big Future

Brian Wang examines the steady progress Lawrenceville Plasma Physics (LPP) is making toward nuclear fusion. LPP is solving one problem at a time, and Brian describes their latest advance.

Spread the Carnival!

Please post a Tweet, a Facebook entry, or a link on your Web site or blog to support the carnival. Also, please post it to Stumbleupon and Digg if you can. Share this intellectual sustenance with a wider group!

Update on the Lawsuit

Yesterday morning, Entergy filed for an injunction in federal court. Entergy asked that the state be enjoined against shutting down Vermont Yankee while lawsuits and appeals were pending. This was a predictable move in many lawsuits. Without an injunction against taking action, one side wins without a trial. You can imagine: "The renters sued me, so I will kick them out right now!" That sort of thing.

Update: Terri Hallenbeck of the Burlington Free Press has a well-written story about the filing, with more details.

According to a April 6 article by Bob Audette in the Brattleboro Reformer (the article is behind a paywall now) a report by Jefferies, an investment advisory company, predicted the plant would run beyond the March 2012 cut-off date. A quote from the report: "We believe it is presumptuous to assume that the plant will be shut down or that Entergy would lose the lawsuit."

Also yesterday, Governor Peter Shumlin gave a press conference. True North Reports has an excellent blog post about his press conference. In the conference, Shumlin repeated his claim that Entergy supported Act 160. Further, he claims that he himself had never discussed the safety of the plant, just the reliability. In the well-edited True North video that heads this post, most of the video time is given to Shumlin's answers at that conference.

Entergy and Vermont Part 2: Shumlin Fights Entergy

The Entergy lawsuit is a story that will play out over time. Instead of attempting to look forward very far, I thought I would look around a bit at the issues, and even look backward. The second of a series of posts.

The Governor and the Attorney General Are Ready for Battle: Looking Around

Entergy filed a lawsuit to keep Vermont Yankee open, as I described in previous posts. Of course, Shumlin vowed to fight the lawsuit.

Aside: If you read the title of Shumlin's press release, you will note that Shumlin thinks Vermont is being sued by Entergy Louisiana, a transmission and distribution utility that serves the Gulf States. Discussing that fact would be a different blog post. End Aside.

Shumlin does plan to fight. The Brattleboro Reformer quoted William Sorrell, the Attorney General (AG) in the following passage:

Attorney General Bill Sorrell said his office has been preparing for well over a month for the possibility that either Entergy would be suing the state or it would continue operating the plant, forcing the state to sue Entergy.

"We've known this was going to end up in court," he said. "The governor authorized us to get more resources, both in staffing and expert witnesses. We've got a lot of work to do, but we're not scrambling woefully behind."

Emphasis added by blogger.

Ready for Battle: Looking Backward

In the past, Shumlin had infinite resources to fight Vermont Yankee. He pulled resources from "The Bank of Entergy". Yes, Entergy paid the costs for Shumlin to fight Entergy.

By law, Entergy is required to pay all the expenses involved in its application for a Certificate of Public Good. For example, when the legislature wanted a Public Oversight Panel, the panel was authorized, and the panelists were paid at $300 an hour each. This was no expense to the state, and no problem for Shumlin. These costs were passed on to Entergy.

Here's a link to one of the Vermont contracts about Vermont Yankee. This contract is with Fairewinds, Arnie Gundersen's company. This isn't a contract for the Public Oversight Panel; it's a contract for the Joint Fiscal Office. On page 2, you can see the billable rate as $185/hour. At the top of attachment A, you can see that the "expenses shall be allocated" to the "company or companies involved in those proceedings" (that is, to Entergy).

Despite much searching, I have not been able to find the contracts for the Public Oversight Panel. However, I am still looking and emailing people in the various state offices. I did get a helpful email response about the Public Oversight Panel contract yesterday, April 20, from Sarah Hofmann, Deputy Commissioner of the Vermont Department of Public Service. Here's a quote from an email Ms. Hofmann sent:

The compensation was set jointly as per the statute by, "the speaker of the house, the president pro tempore of the senate, and the secretary of administration." Act 189 at Sec. 8. You are correct the compensation was set at $300 per hour for the POP members. David Lochbaum only accepted his expenses and not any hourly compensation.

The costs were billed-back to Entergy as per the statutory language of Act 189 which stated, "The compensation and costs incurred by the public oversight panel shall be charged to the petitioner for a license extension under the provision of 30 V.S.A. §§ 20 and 21.” Act 189, Section 9.

In other words, when the Joint Fiscal Office set a price for Gundersen's services, it was $185/hour. When legislators, including Shumlin as President Pro Tem, set a price for Gundersen's services, it was $300/hour. In either case, they were spending Entergy's money.

As far as I can tell, from Shumlin's point of view, Entergy supplied as much money as Shumlin wanted, as long as Shumlin could say the costs related to Entergy's request for the Certificate of Public Good.

Ready for Battle: Resources?

Now, Entergy is suing Vermont, and the state will have to pay for its own expert witnesses and lawyers. Shumlin has authorized "more resources" for the fight. What will be the cost of these "more resources"? Will the lawyers and expert witnesses be paid as they were on the oversight panels during the hearings?

There might be a lot of money needed, over a long period of time. Attorney General Sorrell is not expecting a quick trial. To quote the Reformer article again:

Despite which way the federal judge rules, Sorrell said he expected the case to wend its way to the federal appeals court in New York City and most likely to the U.S. Supreme Court.

"I would be shocked if the litigation ended in district court," he said.

I'm not the only one worried about this. The State Auditor, Tom Salmon, wrote an open letter in which he asked:

• How much is this defense expected to cost? Is it budgeted?
• How much outside expertise will be required to be hired?
• Had this matter been directed to the Public Service Board, would the costs of that process incurred by the state be billed back to Entergy?

Ready for Battle: The Future?

Every lawsuit is a horse race, to some extent. You don't know who won until it's over.

For this race, Shumlin plans to spend millions or tens of millions of dollars. We are talking about:

• expert witnesses,
• more legal resources
• arguing the case up to the Supreme Court

All to close down Vermont Yankee. We only have 600,000 people in Vermont. I don't think they are going to be eager to support these millions or tens of millions of dollars.

Right now, teachers are being laid off, highway funds are being cut, the state has troubles. The budget deficit is about a hundred million dollars. Shumlin has said "no new taxes" but he plans to raise over twenty million by taxing medical providers and dentists. This is not making anyone happy.

It's a bad time to "authorize resources" for a court battle to shut down a major employer.

The Bank of Entergy

I don't think Shumlin really understands that the game has changed. The "Bank of Entergy" is closed to him. It was open for years, after all, and paid promptly for anything related to the Certificate for Public Good. But now there's a lawsuit, not a procedure before the Public Service Board. Now, Shumlin can't do whatever he wants and bill it to Entergy. His only source of funding right now is the taxpayer.

Shumlin may be about to have a learning experience.

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Note about the budget deficit in Vermont. For a while I read $120 million. Then it was $100 million. My newspaper this a.m. says $176 million. Anyhow, it's big for a state of 600K people. We don't need to add to it by arguing complex cases up to the Supreme Court, especially when "winning" Vermont's case would mean shutting down a major employer and taxpayer.

John William Waterhouse The Crystal Ball, from Wikimedia

Horse race from Wikimedia

Entergy and Vermont Part 1: Act 160

The Entergy lawsuit is a story that will play out over time. Instead of attempting to look forward very far, I thought I would look around a bit at the issues, and even look backward. This is the first of a series of posts.

Act 160: Looking Around

One of the important points in the Entergy lawsuit is the claim that the State of Vermont changed the Memorandum of Understanding (MOU) by passing Act 160. Entergy signed the MOU when it bought Vermont Yankee in 2002. In the MOU, Entergy agreed that it would require a Certificate of Public Good (CPG) from the Public Service Board to continue operating the plant past 2012.

In 2006, the legislature enacted Act 160, saying the Public Service Board could not grant a CPG without legislative approval. This Act was a material change to an already-signed contract. Act 160 took the authorization of continued operation from the hands of the Public Service Board, and gave it to the legislature.

Act 160: Looking Backward

Snarky anonymous emails to this blog, statements by staff of the New England Coalition, statements by long-term opponents of Vermont Yankee in the legislature--the opponents claim the same thing: "Entergy supported Act 160! How can they fight it now?"

Well, Entergy didn't support Act 160. They didn't fight it actively, but they didn't support it.

I have looked high and low for Entergy comments at that time, and all I come up with is relatively mild negative comments, like this one from Brian Cosgrove:

Entergy officials also complained that the bill would be redundant when paired with last year’s action.

“That just seems excessive,” said spokesman Brian Cosgrove. “I think the Legislature already has a major role in license extension. There’s no way Vermont Yankee can continue to operate beyond 2012 without the Legislature’s approval for dry cask storage"

This is a quote from an Associated Press article by Ross Sneyd, printed in the March 15, 2006 Brattleboro Reformer, entitled “Lawmakers seek final say on VY relicensing."(see note below)

Entergy did not support Act 160. I suppose Entergy might have fought it, if they had possessed a crystal ball to the future. They apparently did not fight it. On the other hand, they did not support it. Anybody who says Entergy supported Act 160 is either mis-informed or has some evidence that I could not find.

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Note: The newspaper record from 2006 about Act 160 is not available on-line. I obtained some pdfs of old newspapers from the library. If you think Entergy supported Act 160, please send me your evidence. If you want to research the issue, you can go to your local library and look for microfilms of newspapers from around March 15, 2006. If you can find any statement by an Entergy spokesperson supporting Act 160, please send me a copy of the article. Thank you.

John William Waterhouse The Crystal Ball, from Wikimedia

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.