Judge’s decision in Vermont Yankee case raises questions about the efficacy of an appeal

Court drawing from the first round of hearings. Deb Lazar/The Commons

Court drawing from the first round of hearings. Deb Lazar/The Commons

Now that a federal judge has ruled in favor of Entergy, Vermonters are reflecting on what the decision means for the state and for future regulation of nuclear power facilities.

On Thursday, United States District Judge J. Garvan Murtha ruled that the Atomic Energy Act preempted two Vermont laws: one that prohibited the Vermont Yankee Nuclear Power Plant from operating beyond March without legislative approval and another that required Entergy to obtain permission to store high level nuclear waste at the site. Murtha’s decision also enjoined the Vermont Public Service Board from conditioning the issuance of a certificate of public good for continued operation on the existence of a below-wholesale-market power purchase agreement between Entergy and Vermont utilities.

Lawyers, lawmakers and Vermont citizens are sifting through the 102-page opinion, trying to determine just what it means for Vermont and the rest of the country.

One consistent response is that Judge Murtha bought Entergy attorney Kathleen Sullivan’s legal theory hook, line and sinker.

Cheryl Hanna, a constitutional law professor at Vermont Law School, has been following the case.

“The judge essentially agreed with their attorney Kathleen Sullivan that the legislature’s motive was safety,” she said.

Under U.S. Supreme Court precedent, states are preempted from regulating the radiological safety aspects involved in construction and operation of nuclear power facilities.

During the three-day trial in September, Entergy lawyers trudged through an exhaustive review of the legislative history of the Vermont law picking up references to safety concerns.

Murtha’s decision draws from that effort. The first 55 pages, or about half of the opinion lays out, in almost an academic way, the instances where lawmakers made references to radiological safety.

The decision states: “references, almost too numerous to count, however, reveal legislators’ radiological safety motivations and reflect their wish to empower the legislature to address their constituents’ fear of radiological risk, and beliefs that the plant was too unsafe to operate, in deciding a petition for continued operation.”

This record of statements addressing safety will make it an uphill battle for the state to appeal the case to the Second Circuit Court of Appeals, Hanna said.

“The problem going forward is that everything has been tainted by what happened,” Hanna said.

As a practical matter, Hanna said, federal law makes it very difficult for states to regulate nuclear energy. The confusion over what constitutes safety and what states are actually allowed to regulate in this field add a layer of difficulty for the attorney general in giving the legislature frank advice about these types of cases. The extensive record of safety references make an appeal even more difficult, Hanna said.

“It’s a long way from done, but I have a hard time imagining a legal scenario where the state will be allowed to shutter Vermont Yankee,” she said.

For now, the Vermont Public Service Board has the ball. The certificate of public good for Vermont Yankee is set to expire March 21, and Murtha’s decision requires Entergy to go back to the board for a determination that continued operation of the plant will in fact serve the public good.

Part of Judge Murtha’s decision narrows the scope of the board’s review somewhat. Under the ruling, the board cannot condition a certificate of public good for Vermont Yankee to remain in operation on a below-market power purchase agreement with Vermont utilities. Murtha found this type of requirement violates the dormant Commerce Clause of the federal constitution, which prohibits states from placing an undue burden on interstate commerce.

The Public Service Board will also clearly not be able to base a denial of a certificate of public good on radiological safety concerns.

A more nuanced issue that may emerge is the fact that Vermont’s two largest utilities, which represent somewhere around three-quarters of the market in the state, have already locked into other contracts in anticipation of Vermont Yankee’s closure.

Green Mountain Power entered a new contracts with Hydro-Quebec and plans to get additional power from the Seabrook Nuclear Power Plant in New Hampshire.

Dorothy Schnure, a spokeswoman for Green Mountain Power, said Vermont Yankee currently provides about 40 percent of its power, but that contract expires in March. The utility could not reach an agreement with Entergy, and given the uncertainty of the plant’s continued operation, opted to get power elsewhere. Schnure said the utility does have openings a few years out, however, that could be filled with Vermont Yankee power.

Steve Costello, director of public affairs for Central Vermont Public Service, said the utility has filled its needs with other energy sources.

“Essentially, we don’t have a dog in the fight any more related to the plant,” Costello said.

Their power contract is up in March also, and CVPS has found a relatively stable power supply with Vermont Yankee.

The only tie the utility has to Vermont Yankee is a revenue sharing agreement whereby if the plant sells electricity at above a certain rate after 2012, the utilities will receive a share.

This begs the question: Is it in the general good of the state to continue operating Vermont Yankee if all the power is sold out of state?

Pat Parenteau, a professor of law at Vermont Law School, said the state likely cannot deny a merchant plant the ability to sell power out of state. Even if Vermont gets no benefit from the plant it may still have to let it operate. The issue is whether the board can find a way to deny a certificate of public good based on something besides safety concerns.

“The real focus now is Public Service Board,” Parenteau said. “They need to make a better case there with non-radiation reasons to shut it down.”

As for an appeal, Parenteau said the state is stuck with a bad record with all of the references to safety that make it seem like this was the legislature’s purpose. Whether to appeal, however, is a tough call.

Parenteau said the state could have a case for appealing the part of Murtha’s decision that implies that any discussion of radiological safety taints the whole process. That’s not what the Supreme Court precedent says, according to Parenteau, and it is a fair issue to litigate.

“His [Murtha’s] interpretation not totally irrational, but it’s not the only interpretation,” Parenteau said.

The record, both Parenteau and Hanna agree, will present a huge hurdle should the case go forward. Both agree the legislature could have received better legal advice spelling out what it really could and could not do in enacting legislation.

Vermont Attorney General Bill Sorrell said his office has yet to decide whether to appeal Judge Murtha’s decision. The state has 30 days to decide.

“The court found the laws were invalid because they were prompted by concerns for radiological safety and consequently should be struck down,” Sorrell said. “There wasn’t deference to the legislature, and we’re disappointed in that.”

Sorrell said the court read too much into the legislative history.

“To take statements during legislative hearings of a few legislators and say all or a majority of legislators were in fact motivated by safety concerns is a leap,” he said.

The legislative history produced by Entergy attorneys includes statements of experts hired by legislative counsel informing lawmakers they cannot base a law on radiological safety. Entergy used these statements to imply an impermissible purpose.

“You can argue lawyers were trying to create a sham situation for the legislature,” Sorrell said. “On the other side of coin, lawyers are trying to protect integrity of the legislative process and make sure the legislature didn’t break the law. It only seems prudent that the legislature receive advice about how to do it properly.”

Sorrell mentioned that he has succeeded in overturning a decision by Judge Murtha in the Second Circuit. In the data mining case Sorrell v. IMS Health, the attorney general successfully appealed a decision in the Second Circuit but lost in the U.S. Supreme Court.

Sandra Levine, senior attorney with the Conservation Law Foundation in Vermont, called the decision a setback for Vermont and for clean energy going forward.

“This is a plant with a long and troubled history with operators providing false information to regulators, and it has completely lost the trust of Vermonters,” she said.

The Conservation Law Foundation filed a brief as amicus curiae supporting the state in the case.

The good news for environmentalists who supported shuttering the nuclear power plant, Levine said, is what Judge Murtha’s opinion did not say.

“The good news is that much of what has been accepted as state regulation remains in place,” she said.

For example, Entergy still needs to obtain a certificate of public good, and the Public Service Board can address economic and reliability issues.

Levine contends that the purpose of the law does not address safety, and Judge Murtha dug deep into the testimony to make a factual determination that the legislature based its laws on safety concerns. The next show, Levine agrees, will be with the Public Service Board, where Entergy will need to demonstrate the aging nuclear power plant is in the general good of the state. If the board denies a CPG, Entergy could appeal that decision to the state supreme court.

While Entergy released a statement Thursday praising the decision, Gov. Peter Shumlin and some Vermont lawmakers lamented.

Entergy’s statement read: “We’re pleased with the decision, which Judge Murtha issued after a thorough review of the facts and the law. The ruling is good news for our 600 employees, the environment and New England residents and industries that depend on clean, affordable, reliable power provided by Vermont Yankee.”

The corporation has not expanded on this statement.

Shumlin’s released statement read: “I am very disappointed in today’s ruling from the federal court. Entergy has not been a trustworthy partner with the state of Vermont. Vermont Yankee needed legislative approval 40 years ago. The plant received approval to operate until March, 2012. I continue to believe that it is in Vermont’s best interest to retire the plant.”

Rep. Tony Klein, D-East Montpelier, has been fighting to shutter the plant for years. Klein, who chairs the House Committee on Natural Resources and Energy, said he was disappointed that a Vermont judge went the route Murtha did.

Saying the legislature intended to regulate radiological safety based on legislative history is nonsense, Klein said.

“To ask me to strike the word safety from my vocabulary for 10 years is outrageous,” Klein said. “What we are not allowed to do is pass legislation based on safety, and we didn’t.”

Klein introduced a law this term to establish a tax on the storage of spent nuclear fuel in Vermont. He says he plans to continue pursuing that legislation.

John Campbell, President Pro Tempore of the Senate, said he was still reviewing the intricacies of the opinion. It seems, however, to be a further degradation of states’ rights, he said.

Campbell said he was curious to see how certain evidence came into play, particularly all of the references to safety in the record. Other evidence never emerged, Campbell said, like discussion in the Senate concerning the reliability of the plan that would have justified taking it off line.

The next step for the Vermont Yankee show will be the Public Service Board. Beyond that is anyone’s guess.

Alan Panebaker

Comments

  1. Townsend Peters :

    “The Public Service Board will also clearly not be able to base a denial of a certificate of public good on radiological safety concerns.”

    This is not news. The state’s always been preempted on radiological safety.

    “Both [Parenteau and Hanna] agree the legislature could have received better legal advice spelling out what it really could and could not do in enacting legislation.”

    LOL. How would a couple of law professors know what legal advice the legislature got? Advice from legislative counsel is subject to the attorney-client privilege unless given in open hearing.

  2. timothy k price :

    “Under U.S. Supreme Court precedent, states are preempted from regulating the radiological safety aspects involved in construction and operation of nuclear power facilities.”

    The Supreme Court ruling is what needs to change. This is not the first bad Supreme Court decision. Citizen United, for example, … how many more insane opinions do we need before we do what is right? There are hazards connected with corrupt courts and their impositions over the people.

  3. Murtha has moved to strangle free and open discussion by legislatures across this nation – an extremely important part of a representative government.

    Because Murtha has raised floor and committee discussions to a level equivalent to a law that gets passed, legislators will now have to retreat to hidden, smoke filled, back rooms to hash out their limits.

    Oh – and Murtha did this without offering a scintilla of evidence that the safety issue decided the final vote outcome! Nice – he used crappy evidence presented by Louisiana Entergy that crappy lawyers from the state didn’t properly refute to come up with a crappy decision – all based upon speculation.

    If that isn’t judicial overreach I don’t know what is – get some decent lawyers and appeal.

  4. Alan,
    Vermont Yankee has been a major low-cost, near-zero CO2-free, steady (24/7/365), high-dispatch-value, highly reliable (0.92 capacity factor) energy producer for New England; a public good for New England and for Vermont.
    Judge Murtha saved a $90 million/yr payroll, plus 650 high-paying VY jobs, plus about 1,000 other jobs within a 25-mile radius of VY; a public good for New England and Vermont.
    It is time for Vermont’s legislature to stop wasting time and other resources by hair-splitting, legalistic second-guessing Judge Murtha and start encouraging investment for raising household incomes by creating high-paying jobs. Tax collections are lagging due to Vermont’s near-zero-growth economy. There is an election coming soon.
    Vermont Yankee’s production is about 620 MW x 8,760 hr/yr x 0.92
    capacity factor = 4,996 GWh/yr.
    Lowell Mountain wind turbine production is about 63 MW x 8,760 x 0.32 capacity factor = 177 GWh/yr of high-cost, somewhat CO2-free, variable, intermittent, low dispatch value energy.
    Because wind energy is variable, Lowell needs the support of quick-ramping
    gas turbines to ramp up when wind energy ebbs and ramp down when wind
    energy surges; such part-load-ramping operation is highly inefficient, i.e., uses more fuel and creates greater CO2 emissions/kWh.
    It would take 28 Lowell Mountains to equate Vermont Yankee. There
    would be visual eyesores all over the state, emitting health-damaging infrasound and low frequency noise.

  5. timothy k price :

    Even 28 Lowell Mountain projects would not result in turning New England and New York into uninhabitable nuclear wastelands, should there be a malfunction in one or more wind turbines. The analogy that wind-power, though noticeable, is somehow threatening in any comparable way to released fission reactions is, of course, not sensible.

    “Japan’s nuclear disaster demonstrates in powerful and poignant terms the degree to which the state prioritizes security interests over the fundamental rights of people and their environment. Japan’s response to its nuclear disaster — similar to other government responses to catastrophic events like Katrina and Chernobyl — has struggled to control the content and flow of information to prevent wide panic (and the related loss of trust in government), reduce liability, and protect nuclear and other industry agendas.

    There are many lessons to be learned here, not the least of which is how to respond, adjust, and adapt to the hazards and health risks associated with life in this nuclear world. These responses will most assuredly include a demand for transparency and accountability — that is, governance that truly secures the fundamental rights of its citizens to life and livelihood.

    As the world’s nations reassess nuclear power operations and refine energy development plans, now — more than ever — we need to aggressively tackle this question: How do we define the word “safe”?
    Barbara Rose Johnston

  6. George Coppenrath :

    Judge Murtha’s made sense to me from every perspective. As a Senator during the time that this was debated, I argued on the floor of the Senate that this bill made no sense. It was written deviously to require a positive vote to allow the application for a “certificate of public good” to proceed through the normal, legislatively approved process to the Public Service Board. The bill created a roadblock to the process. How in the world would a group of 30 politicians like me make a decision as to the radiological safety, the impact on the distribution of electricity and Vt utilities, the economic impact of relicensing, etc. be in a better position than the Public Service Board, which was created for that purpose and employed a nuclear engineer? Even if one is against nuclear power, does it make sense to create a political roadblock for applications to the PSB for any industry required to apply for a “certificate of public good”?

    The hype picked up by most media, that citizens of the State of Vermont or the Vermont Legislature is against VY being relicensed is simply untrue. The truth is that a small group of Vt State Senators orchestrated a bill through the Senate to create a barrier to the normal public review process.

    It has been stated several times that the VY was designed for a 40 year life. That was actually in the bill. I proposed an amendment to change the word “designed” to “licensed” which was factually correct. VY was licensed for 40 years, it was designed to operate forever, but 40 years was the maximum period of time the federal government had ever issued a license.. Sen. Cummings stated that she would suspend the second reading until the next day so that she could verify that fact. The very next day she stated on the floor that she could not verify that the plant was designed for 40 years but recommended against my amendment. In one of many incredible moves the Vt Senate voted to keep the incorrect language and defeated my factually correct amendment that VY was licensed for 40 years.

    It defies common sense to think that a multi-hundred million dollar facility creating power to provide electricity to not only 24,000 homes, but every home in the state of Vermont would be “designed” to last 40 years. I am amazed that the media give so much air time VPIRG and their ridiculous statements. They certainly have organizing and PR power but they are not in the interests of the public in my neighborhood!

    The process for the application for the certificate of public good will now proceed as it was originally intended to the PSB, after the ideological, politically motivated and costly (to the taxpayers) effort by a small, but powerful, group to shut down an economic asset to the ratepayers of Vermont.

    Sincerely,

    George Coppenrath
    Former Senator Caledonia-Orange District
    2005 – 2006; 2007 – 2008

    • Raymond Shadis :

      Regarding the purported perpetual design life of Vermont Yankee ( And with all due respect to Senator Copperath): The Senator is not alone in accepting the arguement of the nuclear industry and NRC staff that the 40 year license duration is unrelated to plant design life. The USNRC Commissioners and even the Advisory Committee on Reactor Safeguards(Safety)also bought into the arguement that the license life was tied to financial and insurance consideration and not the designed ability of nuclear plants to withstand the physical punishment inherent in more than 40-years of operation. Regardless, the 40-year license term ( construction and operation)was settled on before many utilities began construction. Typically, when they ordered major (and expensive) components, they ordered them specifying 40 year design life. If many and really important components have a vendor-certified design life of 40 years; then conservatively the plant overall can be rated as having a 40 year design life. Chicago Bridge and Iron, the firm that forged Vermont Yankee’s reactor vessel, rated it (the vessel) for (forty)40 years. VY’s cooling towers were rated for 50 years, but then they have had repeated structural failures after just 30 years. The Augmented Off-Gas treatment system drain piping failed releasing radionuclides to the ground water in advance of 40 years. The main steam condenser failed just ahead of schedule; just short of 40 years, as did the feeedwater piping, the reactor core shroud, at least one reactor nozzle, the generator bus duct, and numerous other components. If you have faith in the continued “reliability” of Vermont Yankee, then you must also have faith that somehow the flow of component failures will be arrested. So far there are promises,but no evidence or credible demonstration that VY will pull out of its downward end-of life spiral. Entergy makes much of the fact that the VY plant has been forced to run “breaker-to-breaker” at 120 % of original licensed thermal power, from one refueling to the next without stopping; proof-positive, they say, that the plant is in great shape. I kind of don’t think so. I think rather that it is proof that Energy is willing to take great risks with the Connecticut reiver Valley and its denizons by running pedal-to-the-metal; relying on redundant systems (like your parking brake), rather than to shut down and repair failing equipment.

      In any case, while the 40 year license may not be related to design life; design life has been tied to the forty year license. If you are a commercial power reactor figuring on how long you will live , its two score and then: kaput; three if you are lucky; very lucky.

      Raymond Shadis
      Consulting Technical Advisor
      New England Coalition

  7. ben graham :

    George,
    I don’t agree that the closure of VTY is the aim of only a small group of senators. Where is this information from?
    I also don’t know where you got the idea that VTY was designed to operate forever from. I think you will find yourself in quicksand on this one.
    I also don’t agree that a certification board should have the only ability to make decisions on safety. You assume they are filled with people who are perfectly, aligned with both the reality, which as we know with Japan is not always predictable and the actual feeling of most people. Safety is subjective.
    As we see above, some people are more concerned with noise pollution than radiological pollution.

    I think their are bigger picture problems here with regard to the influence of powerful forces from out of state, whose top aim is profit over what the majority of people in a state want. If you like nuclear power, it will be hard to see this.
    Please don’t argue that Entergy is some benign company whose main aim is the well being of Vermonters.

    I also feel that their are major problems when you end up with the disenfranchisement of the people of Vermont’s ability to decide their fate because of the erroneous idea that only some people can predict safety of nuclear power.

    Ironically, if you agree that fed law should pre-empt state law, you are going against conservative and libertarian sentiment as well as anit-nuke folks, which tend to be progressives. The reality shows that we actually tend use reasoning that aligns with whatever supports our current interests, and whether it aligns with base ideology is not important.

  8. Jim Candon :

    Thank you George Coppenrath for your history lesson. Courts have to deal with stinking facts and the stinking law to make their decisions. Emotion and rhetoric and hysteria play well politically in Vt but – oops – those stinking judjes have to deal with the stinking facts. Gotta love it!

  9. George Coppenrath :

    To Vt Digger readers; my apology for the typographical and grammatical errors in my previous submission… I was on my way to the dump and did not proofread it very carefully, until my return a few minutes ago.
    Ben, the information comes from my personal observation of then Sen. Shumlin shepherding the bill in the Senate with a few chairpersons on key committees and then “encouraging” other D’s to support the bill. To leap from that to statements that “Vermont does not support the re-licensing of VY is as superhuman as to leap buildings.
    Designed to operate forever might be a stretch, but please tell me what the design life is for IBM, EHV, or your local school?
    Radiological safety is not subjective and it is determined by the NRC, the Vt PSB, and the Vt Dept of Health. My point was that I trust those organizations who have been designated by the state and federal gov’ts to assess that fact over 30 Senators without radiological backgrounds.
    I do not consider Entergy to be benign any more than IBM, GE, EHV, etc. They are a private entity, required to operate within the laws and regulations of the federal and state gov’ts. I do not have to like them, be friends with them, or support them… I believe they produce a low cost product, electicity, reliably, 24 hours/day, 365 days/year that provides economic benefits to individual and business consumers.

    George Coppenrath

  10. Mike Kerin :

    Would any of you put all your money into one stock? Not a good idea, right? Well , why do we have one entity to oversee the safety of an industry that has so much potential for devastation of our environment?

    The NRC is the only entity that can regulate the safety of the nuclear industry. The states have no way to enforce safety rules.

    I have written to both my Senators asking them to introduce legislation allowing states to enforce safety rules. Because the NRC is NOT doing their job. The NRC has morphed into the advocate branch of the nuclear industry.

  11. Mike Kerin :

    Mr. Hudson, if you do not read the news and keep up with all the stories it is not my fault. There are so many stories about the NRC not doing safety regulation. Look at the Nebraska nuclear plants, VY leaks, Indian Point, and the “help” the NRC has given the Japanese with their meltdowns.
    I find information through the Huffington Post and Google. There are several other sources as well.

    The NRC issued the re-license to Entergy only days after the earthquake, tsunami, meltdowns that Japan experienced without so much as an inspection of Vermont Yankee. Even though we have had isotopes leaking from the plant.

  12. walter carpenter :

    “The NRC has morphed into the advocate branch of the nuclear industry.”

    At taxpayer expense too. We should demand that our reps take on the nrc. And I would be willing to bet that as soon as entergy can unload this unsafe plant that should be retired, they will do it, go far away, and stick us with the bill for cleaning their mess up. And this Murtha let them do it.

  13. Duncan Kilmartin :

    Ever heard of the name “Volz”?

    Judge Murtha didn’t have to mention the Chairman of the Public Service Board, much less by name, to write his near “bullet proof” Decision, but yet he did. He also mentioned Senator Shumlin by name, and referenced Dworkin by the title as the former Chair of the PSB. Other Senators and Representatives were not named.

    Why? I suspect the following.

    Because Volz violated several rules of judicial ethics by appearing before the legislature, giving advisory opinions, and doing the “nod and wink” routine so valued by Tony Klein, Gov. Shumlin and Attorney General Sorrell.

    His knowing violations have destroyed the credibility and integrity of the PSB. Don’t blame Kathy Sullivan…she didn’t shoot her mouth off…Volz did. She did what any competent lawyer would do…take the evidence and expose it.

    If Sorrell is stupid enough to appeal, I suspect the Second Circuit will sift the record and put on the record that Volz’ conduct is ripe for consideration by the Judicial Conduct Board.

    I wonder if the press or the Vermont Law School tailors of the Emperor’s New Clothes are going to comment on the issue of Volz problematic conduct requiring his recusal from Vt. Yankee, and potential permanent removal from the PSB.

    Shumlin and Klein continue to don the Emperor’s New Clothes so carefully tailored for them by AG Sorrel, the Vermont Law School academics who believe they are beyond accountability, and “independent’ legislative counsel.

    Take a look at pages 73-77 for the “legalese” version of Sorrell telling Judge Murtha, “Look no further than the words we told the legislature to use to describe these new clothes. Don’t make us present evidence as to what these words mean.”

    Listen to what Murtha said to Sorrell!

    I cannot be so naive in my purpose (of statute) inquiry to accept “any transparent” claim, or “blindly accept” a challenged statute’s “articulated purposes”, because doing so would enable legislatures to “nullify all unwanted federal legislation. P. 74.

    Back to the vernacular. Murtha was saying:

    “Billy, I am not blind or naive, and I see through your semantic deceipt and that of Klein and Shumlin. Your true purposes stand naked in the public square, and don’t blame me for holding up the mirror for all the world to see.”

    If you don’t believe this is what was being said to Billy in polite language, listen to the U.S. Supreme Court tapes and the opinions for his last two cases in those forums. Their language is far less polite than that of Judge Murtha. It is sarcastic, derisive and scalding.

    I am waiting for some 11 year old journalist to cry out at a Shumlin press conference, with his supporting cast of courtesans, (Sorrell, Liz Miller, etc.) “Look, they don’t have any clothes on”. We may have a long wait.

    Judge Murtha’s Decision strips them naked, but most people are not going to wade through 102 pages.

    For those of you who accuse Judge Murtha of falling for Kathy Sullivan “hook, line, and sinker”, keep in mind that Senator Leahy and the Judge were law school classmates at Georgetown, may have roomed together, and Pat sponsored Murtha’s nomination to the federal bench. I know because I sat in the Senate Gallery the day Murtha was confirmed and heard Pat’s speech.

    So maybe, just maybe, Murtha ruled on the indisputable facts and the law, and not with a wink and a nod coupled with semantic deceit and corruption for which so many pined.

    For those of you who may be tempted to respond to my comments in cyber time, I would suggest you read carefully the Decision, especially pages 46-49, on the issue of reliability. There you will find indisputable evidence that the Reliability Assessment was a sham, and failed to examine essential components of functional reliablity. Sorrell pinned his hopes on an expert named Hinkley, who proved to be a key, albeit reluctant, witness for Entergy.

    Finally, we can thank our Vermont politicians and the Attorney General, for losing all leverage for favorable power rates from Vermont Yankee, and giving that benefit to our neighbors, while increasing our rates in their pursuit of “alternative engergy sources”. Pages 86-93, especially 93.

    In the next round before the PSB, there is nothing for the PSB to do, but to grant a CPG for 20 years. The DPS Reliability Report, done with Vermont taxpayer money, established the future reliability of Vt. Yankee.

    It will be interesting to watch over the next few days, the scramble by our Governor, Attorney General, PSB Chair Volz (who I predict will decline to answer any questions under the claim of pending docket matters before him and he is a judge who is not allowed to comment on matters pending before him…he should have thought of that when he was advising the Legislature!), Representative Tony Klein, to get some clothing to cover up their naked folly exposed by Judge Murtha.

    The tragedy of all this is that the taxpayers and ratepayers of Vermont are going to pay for the costs of this debacle in the form of Entergy’s attorneys fees and costs, futher PSB proceedings, and much higher elelctric rates.

    You can fool all of the people some of the time, some of the people all of the time, but Billy, Peter, Tony, et. al.
    you didn’t fool Murtha. Now all the world can see Vermont’s version of the “Emperor and his New Clothes”.

    Wonder if National Geographic will depict that on the “Working Landscape”?

    Wouldn’t that be a picture worth more than the 102 page Decision and all of the comments in VtDigger, including mine!!!!!

  14. Mike Kerin :

    Mr. Hudson please reread the quoted statement. The NRC issued that license extension days after the earthquake, tsunami, meltdowns without so much as an inspection. That means they didn’t inspect VY after knowing that the same type reactors failed in Japan. The NRC is supposed to be the safety watchdog but did not do its job. VY should have been inspected after the Japan disaster. VY has been leaking for years now and they can’t seem to find the reason , but the NRC rubber stamped the license.
    BTW this is me talking not Huffpo or anyone else. I’m NOT a parrot nor am I a shill for the nuclear industry.

  15. Alex Barnham :

    VY will probably not have a problem like in Japan, I hope. But we can plainly see that Federal judges are shills for the US government and can do little more than a clerk processing a complaint at Walmart if they know what is good for them. Big government is, in fact, jerking around doing the corporate dance. The question is: how long before we can straighten it out? We sit and root for the home team whilst big money is merrily cutting our throats. It is like being in the control of a bunch of ruthless mafiosa pretending to be pure and wholesome. We, on the other hand, sit like a bunch of school kids as they feed us a line of BS that would choke a horse. It seems that we are faced with a dilemma of goliath proportions that will take hercules, atlas, and zeus combined to fix. The sad part is, when we strip the robes off these tin gods, we find little more than trembling, pathetic cowards.

  16. Chris Williams :

    For the record, on 4/27/06 Representative Duncan Kilmartin joined 129 of his fellow Representatives and voted YES for the passage of S.124 which became Act 160. The House vote was unanimous.

  17. Alex Barnham :

    Now comes the BS, which, by the way, does not stand for a degree in science, but rather, a BIG PILE OF NUCLEAR WASTE MATERIALS.

    Fairewinds Associates, Inc first notified the Vermont State Legislature of its concerns regarding the decommissioning fund for the Entergy Nuclear Vermont Yankee Nuclear Power Plant.

    Now, there’s a very big rhinoceros in the room and everyone can smell it but it is so big and dangerous, everyone just fails to see it. Uncle Sammy was going to put all those rhinos in Yukky Mountain but that would not Be Strong enough to hold them. Instead, the Big Sum of money that is being stored up to get rid of the rhinos isn’t big enough so Entergy is claiming that it will just leave the Big Stinking rhino there and you stupid Vermonters will just have to live with it. The problem with the fund is that it is Being Stored and those who are storing it do not want to see it leave because they have leveraged it so much, the loss would cause severe damage. That is the BS we are asked to swallow.

  18. Donald Kreis :

    In response to Mr. Kilmartin’s intemperate post accusing PSB Chair Volz of wrongdoing, I would like to point out that there is a perfectly plausible and completely benign explanation for why Judge Murtha named some participants but not others in his recitation of the legislative events in question. Much of the evidence on which the judge relies consists of tape recordings in which the speaker is not identified.

    Beyond that, I would challenge those who believe Chairman Volz acted improperly to cite chapter and verse which applicable standards the chairman transgressed. Generalized allegations do not merit being taken seriously. I would also point out that, unlike jurists who work in the judicial branch, quasi-judicial decisionmakers like PSB commissioners have a policymaking (or, if you prefer) lawmaking role. That’s the “quasi” part of quasi-judicial. So it is perfectly appropriate for PSB commissioners to be in dialogue with the Legislature.

  19. Leonard Suschena :

    Interesting comments. I am not a Vermonter, nor do I work for Entergy, but I split my first atom in 1972 and work commercial nuclear since 1980 with Seabrook startup. Interesting to note that the rhetoric and dis-infomation about nuclear power hasn’t changed in 30+ years by the same type of individuals with no knowledge or understanding in the science and technology of nuclear power.

    Well, Entergy bought a “used” reactor from companies that operated it for nearly 30 years before Entergy came on the scene. These companies were VT companies and in that respect there was a great deal of influence from VT’ers and the State government over the utilities that operate VY. When Entergy purchased it, that power and influence in plant operations disappeared. I would contend that the controversy over VY is all about power, but not nuclear power or electricity, but political power and influence.

    120% power pedal to the metal. There were extensive upgrades to plant equipment to allow the plant to go to the new power output. Say your driving from VT to NYC, you fill up with gas and head on the road. Do you stop every 1/4 tank to rotate your tires, change your oil and water and clean your windshield? Why would any power plant that? It is designed to operate continuously for 2 years between refueling, not to stop every 1/4 tank to rotate the tires.

    How do we define the word safe? Well before you get into that, I suggest you get educated on exactly what the safety requirements are for nuclear power and how the NRC oversees it. The individuals I know with the NRC are some of the most dedicated and professional individuals I have ever met and experts in their fields, I would suggest you at least try to attain some basic knowledge of nuclear energy before you insult them. How many of you know the difference between a RAD and a REM? What is mREM?

    They say knowledge is power, but only if it properly applied.

  20. Leonard,
    Your’s is one of the best comments.
    Vermont Yankee,, to get state permission to store spent fuel on its site, had to pay $4-$6 million/yr into the Clean Energy Development Fund that had on its board Dostes, Wolfe, Blittersdorf, etc., all part of the Vermont’s renewables leadership.
    The CEDF became a slush fund for the politically well-connected to award grants and low-cost loans to some dubious projects, including a 100 kW wind turbine for the Bolton Valley Ski Resort that has not performed up to promised production, and a 10 kW residential wind turbine that has a capacity factor of about 0.075.; miserable.
    To fund the CEDF, Reps. Cheney and Klein wanted to add 55c/month to electric bills of households and businesses to substitute for VY’s payments after 2012, but Gov. Shulman, to his credit and the consternation of Cheney/Klein, saw the big picture and nixed it.
    The EV “fee” has been going up each year; the 55c fee would stay the same? LOL.
    A much more economically-viable and environmentally-beneficial measure to reduce CO2 would be increased energy efficiency. A 60% reduction in Btu/$ of GDP is entirely possible with existing technologies. Such a reduction would merely place the US on par with most European nations.
    It would be much wiser, and more economical, to shift subsidies away from expensive renewables, that produce just a little of expensive, variable, intermittent energy, towards increased EE. Those renewables would not be needed, if we use those funds for increased EE.
    EE is the low-hanging fruit, has not scratched the surface, is by far the best approach, because it provides the quickest and biggest “bang for the buck”, AND it is invisible, AND it does not make noise, AND it does not destroy pristine ridge lines/upset mountain water runoffs, AND it would reduce CO2, NOx, SOx and particulates more effectively than renewables, AND it would not require any distribution network buildouts, AND it would slow electric rate increases, AND it would slow fuel cost increases, AND it would slow depletion of fuel resources, AND it would create 3 times the jobs and reduce 3-5 times the Btus and CO2 per invested dollar than renewables, AND all the technologies are fully developed, AND it would end the subsidizing of renewables tax-shelters at the expense of rate payers, AND it would be more democratic/equitable, AND it would do all this without public resistance and controversy.
    http://theenergycollective.com/willem-post/46652/reducing-energy-use-houses
    http://theenergycollective.com/willem-post/61774/wind-energy-expensive
    http://theenergycollective.com/willem-post/64492/wind-energy-reduces-co2-emissions-few-percent

  21. don eggleston :

    “In response to Mr. Kilmartin’s intemperate post accusing PSB Chair Volz of wrongdoing,”

    Volz must be doing something right.

    It’s not just kooks on the far Right, like Mr. Kilmartin, who attack him, but also anti-wind zealots, who call themselves “environmentalists,” on the far Left.

  22. Rob Simoneau :

    It is unfortunate that all this “legal” haggling has nothing to do with Vermont Yankee. Yep, you are all wasting your valuable time. The law has no place here; really, the real issue is when will Vermont Yankee experience its catastrophic fail? It is currently the most unreliable and dangerous nuclear plant in the world. There are many others, many close seconds depending on nature’s mood and farcical design and operating procedures of all nuclear power plants. Others regional nuclear plants that come immediately to mind are The Indian Head Point plant which lies on a fault line as dangerous as those that affected Japan and resulted in the Fukushima Daiichi disaster. I urge you all to watch NHK the Japanese channel to get real time coverage of the ongoing crisis. The US corporate media protects their own so the Fukushima Daiichi disaster is pretty much ignored here. Sorry that’s right the media is liberal, my mistake. The Plymouth plant in Massachusetts is one more.
    So let’s put some skin in the game. I am presenting a $1000.00 donation challenge to anyone on this web site. The money will be donated to the Children of Chornobyl Relief and Development Fund. The challenge is that there will be yet another failure at VY within oh let’s say within one year. Unfortunately I only have $1000.00 to spend on this donation. Now the catch is that you must match my donation with your level of confidence in Entergy and it wholly owned subsidiary the NRC as a multiplier. Therefore if you are 100 times more confident and you lose and a failure occurs you will donate $100,000 to the Chornobyl Relief and Development Fund. There is also one more caveat, and that if Entergy lies again and it is discovered that, say, the failure is discovered two or three years hence, it is double or triple indemnity. That will raise the matching donation to $201,000, $301,000 respectively and of course I will want my $1000.00 back. I will deposit the $1000 in any account.
    Oh and as far as betting on a failed and failing nuclear power plant seems tacky, well is it is only fair since Entergy management and the NRC staff are betting our lives and our environment. The money spent on this court case which has far reaching consequences for all states. How can I be so sure Vermont Yankee will continue to fail? I read the research literature on aging nuclear power plants. The “experts,” which there are none, are pretty much figuring it out as they go along. As far as running a flawed Mark I design, run 20% over capacity, incompetently maintained and have to be caught lying about something as basic as routine maintenance, your laws have no place in this discussion. The management of VT is pure greed laced with hubris. As for the NRC advocacy for Entergy, well they are like the old quote about GM. We don’t care because we don’t have to and we all know what happened to GM, a meltdown.
    “There is no safety in unlimited technological hubris” (McGeorge Bundy).
    Yo Homer, didn’t we design those cooling towers to collapse? We paid extra for that feature. Yo Homer didn’t we design for the pipes to leak tritium. We also paid extra for that design feature. Homer refresh my memory, didn’t we design Vermont Yankee to operate for only forty year. I don’t know, we had no idea what we were doing at the time but it sounds like a nice round number.
    This just in from NHK:
    Former US Nuclear Regulatory Commission Chairman Richard Meserve spoke on Monday at a meeting of Japan’s parliamentary panel investigating the Fukushima Daiichi nuclear accident. Meserve said it’s important for a nuclear regulatory organization to be free from political intervention and independent of a power company. He also said the regulatory body must listen to the public and maintain a high level of openness and transparency.

  23. Tom Look :

    It’s time for the anti-nuke protesters to go home and turn off the power to their homes and they will be allowed to complain!!

Comments

*

Annual fundraising appeal: If we had a dollar for every comment, we could end this annual fund drive now. Donate now.
Comment policy Privacy policy
Thanks for reporting an error with the story, "Judge’s decision in Vermont Yankee case raises questions about ..."