The Public Service Board last week held its final day of hearings on whether the Vermont Yankee nuclear plant’s continued operation is in the best interest of the public and therefore merits a new license.
The two weeks of rebuttal hearings roamed in topic from decommissioning to the plant’s economic status to thermal discharge into the Connecticut River to the trustworthiness of the plant’s operator — Louisiana-based Entergy Corp.
Parties to the case are slated to file briefs to the board by mid-August and reply briefs by Sept. 12.
Geoff Commons is director of public advocacy for the Public Service Department and is overseeing the case for the executive branch.
“The board has a huge record in front of it,” he said. “I’m sure they’ll issue a strongly considered and tightly worded order. I would expect them to take six weeks to two months from the end of the reply briefs, but there is no deadline for them to rule.”
The Public Service Department is charged, in part, with representing the interests of the public in Public Service Board proceedings and argued against Vermont Yankee’s continued operation. Vermont Yankee officials believe the plant’s record substantiates its relicensing for another 20 years.
The final witness the board heard from was Peter Bradford, a former Nuclear Regulatory Commission officer and a former chair of Maine and New York’s utility regulatory commissions.
In the final testimony, the board and Bradford focused on the importance of accurate information in the regulatory process and how the board should determine whether to permit the plant.
“Does there come a point … where a board would reasonably say enough is enough?”
June Tierney, general counsel for the board
June Tierney, general counsel for the board, alluded to past “discovery disputes” with Entergy and referenced an incident in which Entergy Vice President Jay Thayer testified under oath in 2009 that he didn’t “believe there is active piping in service today carrying radionuclides underground.”
As Thayer told VPR’s John Dillon at the time, he erred on two fronts: The plant does have underground pipes in use, and Thayer failed to correct the record.
During this time, the plant was grappling with leaks of the radioactive isotope tritium, and its 40-year operating permit was due to expire. The Nuclear Regulatory Commission renewed the plant’s federal license in 2011, and a subsequent federal court decision in 2012 barred the Legislature from shutting down the plant — a decision that the state is appealing. The plant has been operating under an extension of its previous state permit, and the Public Service Board’s decision is expected to determine the future of the plant.
In light of the plant’s history and Thayer’s inaccurate testimony, Tierney asked Bradford: “Does there come a point … where a board would reasonably say enough is enough? We’ve been trying to get a message across to you and you’re not getting it. And no, we’re not going to find that it’s in the public good for you to continue to operate. Is that a reasonable thing for a board like this to conclude?”
“It’s conceivable,” Bradford responded. “But the granting or withholding of a certificate rarely comes down to one area of misconduct.”
Bradford reminded the board that they are “entitled to” regulate based on the plant’s economic impacts, rates, land-use impacts and decommissioning issues. Safety falls under federal jurisdiction, and federal preemption was the basis of Entergy’s successful lawsuit against the state.
“I would be most drawn to the economic impact issues, the overall economic well-being of the state and how it’s affected by whether the plant is operating, not operating, operating under different management,” Bradford said.
Bradford also said that the board should consider whether Entergy is a fair partner.
“Can you count on them to do their part constructively and in a trustworthy way in Board proceedings?” he asked. “Beyond that (being a fair partner) does include the representation of other parties in terms of their interactions with Entergy, and whether they have been denied in terms of the state interests.”
Environmental groups, who were parties to the case, raised a red flag during the recent hearings, saying that Entergy provided relatively inaccessible data about the plant’s effects on the temperature of the Connecticut River.
“It was a large amount of data,” Commons said. “To be useful, it has to be in a form that another expert can manipulate it, analyze it, use it, and that means providing it as a live working spreadsheet. Instead of providing it in that form, Entergy provided it in PDF format, which is essentially screenshots of the pages in Excel.”
As VPR reported, board Chair James Volz said Entergy “ambushed” the groups by handing over the data right before the hearings.
The one element of Vermont Yankee’s arguments that caught Commons a bit off guard, he said, was the breadth of Entergy’s federal preemption claims, or the range of regulatory arenas that the company argued the state was preempted from controlling based on federal jurisdiction. Bradford, too, was indignant about this tactic.
“I would be beside myself over … the ways in which preemption arguments are being used before the board today,” he said.
Bradford reminded the board that renewing a license, which has expired, is different from taking one away.
“It’s not quite the same as a revocation situation,” he said. “There are a lot of situations in utility regulation in which a certificate or a franchise expires and has to be renewed. And it’s a good time to take a look at whether this owner is the right owner even if the franchise continues, and whether this management is the right management.”
Correction: The NRC renewed Vermont Yankee’s federal license in 2011.