Citizens’ Groups Briefs to the PSB

Since Entergy applied to Vermont’s Public Service Board in 2008 for a Certificate of Public Good to operate past March 21, 2012, citizens’ groups have been engaged in the legal process. The media blackout of the five groups’ responses to the current deal before the Public Service Board (PSB) is an appropriate metaphor for the fact that the State and Entergy ignored the groups when making the deal. The briefs were submitted February 21. Since no one else in the press or blogosphere has reported on their arguments, I will attempt to do so here.

There is one consistent message in the five briefs: Entergy is not a fair partner because it can’t be trusted.

Let’s start with the shortest brief, submitted by the Conservation Law Foundation (CLF). In just four pages, Sandy Levine concludes that a CPG should be granted, albeit on “very limited grounds.” Without any enforcement provisions and no time line, “Nothing stands in the way of Entergy waiting a full sixty years before beginning radiological decommissioning.” She uses one paragraph describing the MOU’s “limited benefits” and two full pages on why “[m]any provisions in the MOU fail to provide meaningful benefits and should not be relied upon.” So why grant a CPG at all? If a CPG is denied, appeals would be made and the reactor would likely continue to operate until those are resolved. If granted a CPG, CLF’s goal will be met:  “the plant will shut down and will not plague Vermont with the problems of decades of continued operation.”

The next simple argument came from Vermont Natural Resources Council (VNRC) and the Connecticut River Watershed Council, which limited their argument to the thermal pollution that would continue if a CPG is granted under this deal.  PSB should deny a CPG outright, or condition a CPG on the reactor using closed cycle cooling during operations so that overheating the river stops. Alternatively, the PSB could require a renewed Clean Water Act permit, which Yankee has not had since 2005.

The Windham Regional Commission (WRC), which represents the economic interests of Windham County, states “The MOU offers little and guarantees less.”  There is no binding agreement for prompt decommissioning, which is the “the best way to mitigate the employment and economic impacts of closure.” None of WRC’s consistent goals are addressed by the deal. Operations and decommissioning should be “held jointly and severally by ENVY, Entergy Nuclear Operations & Entergy Corporation.” The decommissioning trust fund must be adequately funded. The definition of decommissioning must be clarified to meet the standards agreed to under the 2002 sale agreement — return the site to productive use without SAFSTOR and remove of all structures below grade. Prompt movement of spent fuel to dry cask should be an operational expense, not shifted to the decommissioning trust fund. Without meeting these criteria, WRC sees no reason to support a Certificate of Public Good.

The New England Coalition (NEC) describes the current process as “taking on more the aspects of hostage negotiations than civil discourse. This speaks volumes to Entergy’s qualifications as ‘fair partner’ to Vermont.” Although the PSB told the NEC that such deals are common practice, the NEC finds it “deeply troubling” that the PSB’s authority was undermined by private talks that left out the five parties and years of evidence. NEC also reminds the PSB of all the times the PSB itself found Entergy less than honest, and the “proclivity of Entergy to hide in the language of selectivity and obfuscation…” After analyzing the MOU, NEC concludes that the PSB must either reject MOU outright or set conditions that “offset Entergy’s failure to achieve fair-partner status” without recommending what those might be.

VT Public Interest Research Group’s (VPIRG)  brief by Jim Dumont is a detailed laundry list of reasons why the CPG must be denied. It also offers the PSB two enforceable, non-preempted conditions the MOU could have – but did not – impose. First, the MOU could have included a condition that Entergy seek NRC approval of decommissioning when the state requests it. Second, the PSB could order an auction to help PSB decide “which entity would best serve the public good” by decommissioning Vermont Yankee. “Entergy is not the only entity that has the expertise and resources to become the N.R.C. licensee in charge of decommissioning the plant. The auction may result in a bid by another entity to own and decommission the plant on terms different than those that Entergy is willing to commit to.”

Dumont pokes a lot of legal holes in the MOU.  In addition, the current MOU is “vague, unenforceable, and a major retreat from prior PSB orders,” and VPIRG is alarmed to see site restoration provisions included in the MOU. Site restoration is under state, not NRC, purview. As recently as October 2013, the State determined that non-radiological site restoration is not preempted nor subject to an appeal. The State argued for the condition that Entergy put $60 million into a site restoration fund within 20 days of a CPG being granted. According to VPIRG, “They were right in October. With no MOU, PSB would have unfettered authority to impose standards in this area.”

But in December’s deal, the State changed its position, with no reason given. Despite PR spin about economic benefits to the state, the new MOU offers $15 million less for site restoration, and spreads it out over a number of years. The PSB can write much better conditions, argues VPIRG, or simply revert back to the Dept. of Public Service condition from October 2013.

In my mind, VPIRG puts forth the most common sense argument as to why the PSB should deny a CPG, in its opening statement. The agreement with the State is based on “Entergy’s promise to shortchange its shareholders and put the interests of the people of Vermont first.” Putting Vermont citizens above shareholders is surely a stretch for Louisiana-based Entergy.  Its stock value has plummeted and its finances have been under public scrutiny. Under NRC rules, Entergy can wait it out for a few decades while the decommissioning fund (hopefully) grows in the stock market, with their eye on the prize in this MOU: Entergy gets to keep 50% of any surplus in the fund. With no enforcement conditions and a Certificate of Public Good in hand, what could possibly motivate Entergy to decommission in the next decade? What nuclear power company – or what traditional energy company, for that matter – has ever put the public good over profits?

You can read the briefs yourself, as well as the State and Entergy documents, by downloading them from the Public Service Board webpage for Docket 7862.

The Public Service Board has until March 31 to approve a Certificate of Public Good or, in a brash threat from Entergy’s VP, testifying before the Public Service Board on January 31, 2014:

 “…if we don’t have an agreement, then the trust fund could reach 2 billion dollars, and the cost of decontamination and dismantlement could be a billion dollars, and we could still wait 60 years without, from our perspective, any requirement to do anymore.”

Does that sound like a company which has just promised to put the good of Vermont’s citizens over the good of its bottom line?

TAKE ACTION: Contact the PSB & Thank the Citizens’ Groups

Email your comments to the Public Service Board or mail your comments here:

Clerk of the Board
Vermont Public Service Board
112 State Street
Montpelier, VT 05620-2701

Attn: Docket 7862

Those of us living in Vermont Yankee’s shadow suffer the consequences of Entergy’s decisions. For well over a decade VPIRG, CLF, NEC, VNRC, Windham Regional Commission and Conn. River Watershed Council have worked to protect us from current and future harm. Without their voices before the Public Service Board, we would have had no voice at all.  We will surely miss their voices after closure when, under federal rules, decommissioning is decided by the NRC and the owners alone, with no role for the state or its citizens, and our advocates.

Thank the groups here:

Jim Dumont, VPIRG

Sandy Levine, CLF

Ray Shadis, NEC

Jamie Fidel, VNRC

Chris Campney, Windham Regional Commission

Andy Fisk, Connecticut River Watershed Council

Author’s Note: I am not a lawyer, just a lay person with decades of experience reading legal material. I had to make choices about what to cover and what to set aside as I summarized five legal briefs into an essay of a manageable length and put legal language  into plain English.  I apologize to the authors of the five briefs for any mistakes, key omissions, or misinterpretations.


Leslie Sullivan Sachs, for the Safe & Green Campaign

This entry was posted in Action, Decommissioning, Legal and tagged , , , , , , , , . Bookmark the permalink.