Voices of Fukushima March 9, 10 & 11 2013

Don’t retire those “Nuclear Free in 2012″ lawn signs. While 2012 has come to a close, and Vermont Yankee is still producing tons of radioactive waste, the new year’s winds are in our favor.

In today’s blog post titled “Vermont Yankee – Worth More Dead than Alive”  Conservation Law Foundation attorney Sandy Levine writes, “Financial analysts report that Vermont Yankee is economically vulnerable and a retirement announcement would boost stock prices for its parent, Entergy.” Read her blog, with a link to the analysts’ UBS Investment Research report here. Statement of Risk on Page 6 is especially interesting — first because it is written in English, not finance-ese; and second, it describes the additional non-financial risks which make Entergy a poor bargain in Wall Street’s eyes- from regulatory pressures to weather to the price of uranium to “headline risk” — their euphemism for a nuclear accident (!).

In today’s news, the Public Service Board (PSB) put out a second order, once again affirming that Yankee is operating in violation of its sale agreement and lacks a Certificate of Public Good. Their orders rely on language in the 2002 Sale Order Entergy signed. Condition 8 of the Sale Order states:

8. Absent issuance of a new Certificate of Public Good or renewal of the Certificate of Public Good issued today, Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. are prohibited from operating the Vermont Yankee Nuclear Power Station after March 21, 2012.

Motivated by the PSB’s orders, the New England Coalition has gone to the Vermont Supreme Court asking that Yankee be shut down because they are in violation of the sale order. Entergy claims NEC is using bad process, and the state is worried that yet another court battle will muck up the works. The Supremes will hear oral arguments in Montpelier on January 16.

Just two days earlier in New York City, the Federal Court of Appeals will hear oral arguments from Entergy’s stable of four law firms and the Vermont Attorney General’s office in the “preemption case.” Entergy argued that Act 160, the law the legislature enacted giving itself a say in whether nuclear plants can be permitted to operate by the PSB, was motivated by safety concerns.  Only the NRC can judge radiological safety.  The state argues that Act 160 says nothing about safety, and that the case should be decided on what the law says. States are watching the case carefully, as a decision in favor of Entergy could undermine the authority of legislatures. The decision in this case “could have dramatic implications for state sovereignty and the ability of legislatures to regulate corporate activities within their borders.” Read more here, for an excellent analysis of states rights in this case.

As the song goes, trouble ahead, trouble behind …. for Entergy these days. Way to start a new year!

12.4.12 UPDATE : Today the New England Coalition asked the VT Supreme Court to order Entergy to shut down Vermont Yankee. They want Yankee to “immediately cease and desist from nuclear power generation” until the PSB decides whether or not to grant them a certificate of public good. Why now? The PSB Order earlier this week (see below) gave the Coalition the opportunity. The Coalition says that by operating after 3.21.12 Entergy is violating the Sale agreement to shut down March 21st.

Yes, we activists have been saying this same thing for well over a year now. The wheels of justice turn slowly. In their “Complaint for Injunctive Relief”, the Coalition asked the VT Supreme Court to expedite their decision. Let us hope the Coalition succeeds, and we who live in the evacuation zone get some relief!

You can read the Coalition’s complaint on their website: www.newenglandcoalition.org/

For the PSB’s Order, scroll down to November 29 on their page of Recent PSB Orders

[11.29.12] The Public Service Board dope slapped Entergy in a 30 page Order this week. It’s exactly the dope slap the Car Talk guys would give to a teenaged driver, “Whack! Ya Dummy!”

In the 2002 Sale Order made when Entergy bought the reactor, it promised it wouldn’t operate past March 21, 2012 except to decommission, and it wouldn’t store any new fuel on site after March 21 either. On May 29th, 2012 some bright Entergy lawyer asked the PSB to change the Sale Order, since they’d been in violation for a couple months.  Entergy’s brief says “Geez, this is a huge surprise! We are shocked that we do not have a CPG by now! How could we have known? It’s all the legislature’s fault for slowing us down with that Senate voting thing. It’s really hard on us not to know what’s going to happen!”

The PSB was not amused. Of course, they say it politely (at first):

“…the conditions at issue should not have been a surprise to Entergy VY. Instead, we find that Entergy VY has shown no reason to have expected any other outcome. We also conclude that, although we recognize that the legislature took actions that changed the legal landscape, Entergy VY’s claimed hardship — the risks associated with operation after the deadline for termination set out in Condition 8 of the Sale Order [3.21.12 closure] — is in large part the result of tactical decisions Entergy VY made concerning legislative strategy, the timing of legal challenges, and the structure of its petition to the Board.”

In other words: its your own bad choices, kid. Whack! Ya Dummy. And that’s just page 2.

The PSB then goes on for another 28 pages rubbing it in. They say “you should have known” in every conceivable way. They spend five pages reminding Entergy of the Board’s power. They quote Entergy’s own attorneys and witnesses. They say it was your choice to sue the State of Vermont, and to wait 5 years after Act 160 was passed to do so. It was your choice to make “misstatements concerning underground pipes” bringing the whole case to a screeching halt. You asked us once before if you could run after March 21, and on March 19th we said no. “At that point, Entergy VY could have avoided hardship by complying with the Board’s Order … Instead, it voluntarily elected to continue operating Vermont Yankee… Any hardship Entergy VY faces is the result of choices it made…”

In other words — you could have just shut down.

And if you thought we’d let you keep on running, why didn’t you say so? We aren’t going to accuse you of hiding anything. You were being up front with us when you bought the place, weren’t you?

Or, in lawyer speak:

“… we would have to assume that Entergy’s witnesses and the representations in its briefs contained unstated caveats that effectively altered the meaning of the commitments. We decline to conclude that Entergy VY would fail to apprise the Board of material limitations on its commitments in 2002 when it was seeking approval for the sale transactions. Instead, we presume that Entergy VY’s 2002 representations were accurate. And we relied upon them in issuing the Sale Order.

One would never want to accuse a quasi-judicial body of being snide. Or sarcastic. But one could read both into the quote above.

They conclude:

… we do expect that Entergy VY’s compliance with our Orders and its willingness to abide by affirmative commitments in testimony and briefs will be relevant considerations in any decision the Board makes concerning modification of Entergy VY’s existing CPGs.

Entergy is now on notice that their past behavior will be taken into account when the PSB decides on their Certificate of Public Good. Whack!

AP Article     Rutland Herald article

VY is in a Tight Box – CLF Blog