Editor’s note: The author of this commentary is Tom Buchanan, the chair of the Energy Committee of the Windham Regional Commission, which has been reviewing the extended operation of Vermont Yankee since October 2007. Mr. Buchanan is writing as an individual, and not as a representative of the commission. The Windham Regional Commission is a party to the certificate of public good case on behalf of the residents of the Windham Region and neither supports nor opposes the application. The views expressed here do not reflect a position of the WRC.
One of the most contentious issues being considered by the Vermont Legislature is the continued operation of the Vermont Yankee nuclear plant. Gov. James Douglas argued in his 2010 State of the State address that the Legislature should vote to allow the Public Service Board to rule in the case, because he believes it is an issue that should be decided by regulators who function “away from the political fray.”
While that argument may have merit, Entergy has not agreed to accept a ruling from the Public Service Board, and has instead advanced a willingness to appeal a board ruling on grounds of federal preemption. Legislators should not vote on extended operations unless Entergy agrees to allow the Public Service Board to render a final and binding decision, and agrees to surrender any rights to appeal based on federal preemption.
There are an abundance of issues to tackle, including conflicts such as which legal entities have final responsibility for decommissioning, the adequacy of the decommissioning fund, the timing and level of decommissioning to be required, the density of spent fuel storage in the above ground pool and in dry casks, the replacement of an aging condenser and deteriorated spare transformer, the definition of shared revenue and the distribution of those funds under an existing 10-year Revenue Share Agreement, the benefits of a still absent Purchase Power Agreement, the representation Vermont will have in any settlement with the U.S. Department of Energy over spent fuel storage costs, levels of oversight to be maintained by the Department of Public Service, and many others.
If the State of Vermont imposes requirements that Entergy doesn’t like, the company may very well drag the process through the courts.
As in most certificate of public good cases, the Public Service Board has reviewed the issues of continued operation through an exhaustive process of hearings and public outreach, and is positioned to issue a ruling that would address those underlying concerns either by denying a new certificate of public good, or by issuing a certificate with conditions. In most cases, Vermont’s Legislature has been content to allow the Public Service Board to do that job.
The extension of operations at Vermont Yankee is very different, first because the public has expressed such strong misgivings about continued operation, and second because Entergy has threatened to litigate many of the issues that the Public Service Board may find reason to act upon.
Much of the conflict has been debated in the open, but there is seldom seen legal maneuvering, too. Entergy concluded the certificate of good process with a “reply brief,” filed on August 7, 2009, that made liberal use of their claim to federal preemption. That claim rests on a position that the federal government alone can decide many of the issues before the board, and that if the State of Vermont imposes requirements that Entergy doesn’t like, the company may very well drag the process through the courts.
That reply brief drew on prior case law and made clear that Entergy will not tolerate any decision that might have “…some direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels,” and they have defined this holding in the broadest possible terms.”
Entergy has claimed that oversight of some of the recommendations in the state-mandated Comprehensive Reliability Assessment, which Entergy has already agreed to fully address, might themselves be preempted, and argues that establishing a rigorous compliance process as proposed by one of the parties to the case would “…almost certainly lead to administrative litigation.”
They argue further that decommissioning is substantially controlled by federal law, and again suggest that related conditions imposed by the Public Service Board might likewise be preempted. Entergy argues that embracing decommissioning dose limits recommended by the Vermont State Nuclear Engineer would “conflict with the NRC goal of a consistent regulatory basis,” and is preempted, and makes a claim that imposing conditions that result in additional decommissioning costs might conflict with the goals of the Atomic Energy Act, and by inference could be preempted for this reason alone. Many of these assertions could easily be extended to almost any requirement PSB might impose.
The claims of preemption in the Entergy reply brief are extensive and may give Public Service Board cause to sidestep some critical issues, and to tread lightly on others. And the very threat of extraordinarily expensive litigation might render many board requirements unenforceable.
The Vermont Legislature would do well to recognize the troubling positions expressed in the Entergy reply brief. The Legislature should independently review every single issue and not hold a vote to release a certificate of public good unless each of those issues has first been addressed in detail through a mutually binding Memorandum of Understanding with Entergy, or through a binding agreement to accept a PSB ruling without the use of an appeal based on preemption.
It is only through such a rigorous process, agreed to by the owners of Vermont Yankee, that the public can be comfortable that PSB will rule with authority recognized by Entergy, and that concerns will be adequately addressed. A failure of the Legislature to resolve these issues, or a legislative desire to let the board rule as it normally would, might well subject the State of Vermont to a weak decision from the Public Service Board, the uncertainties of litigation, and the risk of extraordinary legal costs.
Unacceptable. Vermont Yankee is an accident waiting to happen, the next Chornobol. This matter can be decided only by the people’s representatives, the Legislature. Or even better, via Town Meeting, the Vermont way. It may not be decided by unelected appointees who remain the same from one election to the next.
There is no higher authority or loyalty, especially in such an existential matter. As a candidate for the Vermont Senate, my loyalty is to the health and well being of the people of Vermont, not to price per kWh.
The next Chornobol may be forced on Vermont whether the people of Vermont want it or not. Cause for Secession? What do YOU say?
Entergy would be foolish to foreclose any of its options to appeal adverse terms and conditions that the Legislature or the PSB might impose.
Let’s not forget that VY has other customers for half its electricity output. I’m no lawyer, but imposing conditions on the plant that would in any manner interfere with or add burdens on interstate commerce would very likely be grounds for an appeal in federal court.
No matter your opinion on Nuclear Power in general, or any of the events of the last few years, it is time for this plant to go. It has served us well but is already beyond it’s planned lifespan. Extending bureaucratic dates again (and again)will not make it last forever. Ownership is now a game of “Hot Potato” because no one wants to hold the paper when it closes. This has already reached a point where owners obviously don’t know enough about the actual property. Government is not able to plan our energy future while this “cheap energy” can be “Extended” beyond the next election cycle. It will cost money to replace the power and shut this down, but the longer we put off that planning the more it will cost in the long run. Good Bye Yankee, and thanks