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The Commons
News

VY suitor: plans are 'highly confidential'

NorthStar contends making 'work product' available to public could sharply hurt profit

Originally published in The Commons issue #408 (Wednesday, May 17, 2017).



VERNON—The state’s review of the proposed sale of Vermont Yankee is a public process, with thousands of pages of documents filed and posted online.

Now, the company that wants to buy the shut-down Vernon nuclear plant wants the state Public Service Board to restrict access to two “highly confidential” documents that contain detailed financial plans for cleaning up the site.

NorthStar Group Services notes that it already has turned over about 1,500 public documents related to Vermont Yankee. But the company contends that, in this case, the unusual confidentiality proposal is necessary to protect its financial interests in a fiercely competitive business.

“NorthStar would potentially lose the opportunity to earn hundreds of millions of dollars of revenue, along with reasonable profit thereon, if its work product was made available to its competitors,” company attorney Joslyn Wilschek wrote in a motion filed with the board May 5.

However, some say NorthStar’s request raises concerns about transparency and public access to documents that might be critical to evaluating the Vermont Yankee decommissioning plan.

“This request seeks permission to approve the sale and cleanup based on a secret plan,” said Sandra Levine, a Conservation Law Foundation senior attorney. “Vermonters deserve to know the plan is valid and how it will work.”

’Protective agreements’

Vermont Yankee owner Entergy is hoping to sell the plant to New York-based NorthStar by the end of next year. The decommissioning company is promising to have most of the site cleaned up and available for redevelopment by 2030, decades sooner than Entergy had proposed.

The deal requires approval by the federal Nuclear Regulatory Commission and the Vermont Public Service Board.

It isn’t uncommon, officials say, for there to be “protective agreements” in the Public Service Board process so that a petitioner like NorthStar can limit public dissemination of sensitive information.

In fact, the state Public Service Department on May 2 filed a motion for such an agreement that is “intended to facilitate the exchange of allegedly confidential documents” in the Vermont Yankee sale case.

That agreement is “similar to those approved by the [Public Service Board] in many prior dockets,” wrote Geoffrey Commons, a special counsel for the department.

But NorthStar’s new request for confidentiality goes far beyond such standard agreements. Levine, in reviewing the company’s motion, dubbed it “highly unusual.”

“I have never seen it in more than 20 years practicing before the board,” she said.

At issue are two documents totaling 36 pages. They are known as the “detailed pay item disbursement schedule” and the “deal model,” and both contain detailed information about how NorthStar has broken down the Yankee project into 900 “sub-tasks” as well as how each task would be paid for.

NorthStar argues that those documents cannot be made public as part of the Public Service Board process.

In fact, the company says neither the NRC nor Entergy has seen the detailed pay item disbursement schedule. And the deal model hasn’t been submitted to federal regulators, either.

“This highly sensitive information is known only to NorthStar’s management team and regulatory counsel, was developed at NorthStar’s expense, and is not known to others in NorthStar’s industry or to the public in general,” Wilschek wrote.

“Were it to become known to NorthStar’s competitors,” she warned, “they would likely be able to adopt it at NorthStar’s expense and detriment, to use it unfairly to compete for future projects.”

Competition ahead

There are more U.S. nuclear decommissioning jobs on the horizon, with Entergy announcing several other pending closures after shutting down Vermont Yankee. NorthStar “intends to compete for at least some such projects,” Wilschek wrote.

That competition, NorthStar says, could be hampered by undue public disclosure of the “unique and proprietary way that it plans, schedules, and budgets its decommissioning projects.”

NorthStar initially proposed that only the state Public Service Department should be able to view the two confidential documents, “and only for inspection (not copying) at NorthStar’s counsel’s office in Montpelier.”

But that met with some resistance during an April 24 meeting of intervenors in the Public Service Board process. The session was organized by the Public Service Department to encourage open discussion of NorthStar’s request.

“One thing we wanted to avoid was any notion that the department was going to go off and make any special deals,” Commons said. “We’re not doing that.”

As a result of that meeting, NorthStar modified its request and submitted it to the Public Service Board. The company is proposing to expand access to the confidential documents, but only under a rigorously structured arrangement.

For example, the Public Service Department and its attorney must choose an “internal data owner to guard the documents.” Even before that person gets hold of the information via a “special hard drive,” NorthStar wants a list of any state experts and consultants who will have access to the documents.

“NorthStar will have an opportunity to object to any such person that raises concerns with regard to a risk of disclosure (even inadvertent disclosure) to NorthStar’s competitors,” the company’s motion says.

Nongovernmental parties that sign a protective agreement also would be able to see the documents at the office of NorthStar’s attorney — but only in a tightly controlled environment.

“No copying, photographing, note-taking, or dictation recording will be permitted, and review will be supervised to ensure compliance,” Wilschek wrote.

Reaction to NorthStar’s proposal has been mixed.

Agency objections

Attorneys for the state Public Service Department and the Agency of Natural Resources jointly filed a response saying they “do not object to additional protections for the two documents filed by NorthStar, based on NorthStar’s representations regarding the highly confidential and sensitive nature of those documents.”

The agencies did, however, object to several elements of NorthStar’s confidentiality plan — including a request for the employment histories of the state’s experts. Officials are asking the Public Service Board to consider their objections when deciding on NorthStar’s motion.

In an interview, Commons said that, in general, “the default assumption is that as much [information] as possible should be public” in Public Service Board cases.

But he also maintains that “there are times when the public actually benefits” from confidentiality — for example, where there are pricing negotiations for a power-purchase agreement.

Others who are involved in the Vermont Yankee review see it differently. Skeptics of NorthStar’s Vermont Yankee proposal have questioned the company’s logistical and financial planning, and the documents in question would seem to go to the heart of those topics.

“It may be that what they really don’t want ... is probing into their delicate financial situation,” said Ray Shadis, a technical adviser with the Brattleboro-based New England Coalition.

Echoing Levine, Shadis said he had never seen a confidentiality request like NorthStar’s.

“It’s not just unusual. It is twisted somehow,” he said. “It’s not in keeping with the spirit, if not the letter, of the whole discovery process.”

Shadis also noted NorthStar’s concerns about competition, contending they are at odds with the notion that the company is the only viable option for an accelerated Vermont Yankee cleanup.

“I think that NorthStar’s motion is an inadvertent admission that they are not the only game in town, and people need not be so timid about upsetting NorthStar,” Shadis said.

Like New England Coalition, Brattleboro-based Windham Regional Commission is an intervenor in the Vermont Yankee case. But the commission doesn’t necessarily have the resources to independently evaluate NorthStar’s technical documents, Executive Director Chris Campany said.

That’s why Campany is relying on state agencies to be able to view — and then interpret and explain in sufficient detail — NorthStar’s plans. He wonders whether confidentiality provisions could hamper that.

“I think that information is absolutely essential in understanding NorthStar’s capacity to do what they want to do,” Campany said.

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