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Sanders alleges NRC asked Justice Department to intervene in Entergy lawsuit against Vermont

BRATTLEBORO—U.S. Sen. Bernie Sanders, I-Vt., is accusing the U.S. Nuclear Regulatory Commission (NRC) of voting in a secret meeting to ask the U.S. Department of Justice to intervene on Entergy Corp.’s behalf in the company’s court case against the state of Vermont.

Commissioners appeared June 15 before the Senate Committee on Environment and Public Works as part of an oversight hearing to report on the NRC’s safety review of U.S. reactors in the wake of the Fukushima Daiichi nuclear disaster in Japan, where an earthquake and tsunami led to a partial meltdown at several of the facility’s reactors.

Sanders, a committee member, pressed commissioners during the oversight hearing.

The senator said that Vermont was in a “unique position” regarding nuclear power and that, when Entergy bought Vermont Yankee in 2002, the company knew that the state Public Service Board had a “legal say” in the re-licensing process.

The company signed a legal document as part of the regulatory approval process during the sale. The document stipulated that company officials acknowledged the state’s right to regulate the plant over issues not having to do with safety.

Federal law places nuclear safety issues exclusively in the NRC’s realm.

Sanders highlighted a 2007 cooling tower collapse, along with tritium leaks from underground pipes that Entergy officials swore “under oath” did not exist.

The senator said that these incidents did not instill confidence in the people of Vermont.

“Entergy should respect Vermont’s laws,” he said. “We understand Entergy’s well-paid corporate lobbyists and lawyers have been pushing for the federal government to get involved in the lawsuit that Entergy filed against Vermont.”

Sanders also asked that the NRC make public the results of the rumored 3-2 vote.

NRC Chairman Gregory B. Jaczko said he would supply Sanders with documentation on the vote, provided the senator not release it to the public at this time.

Sanders replied that he did not want the information if he couldn’t make it public.

He asked the commissioners to reveal whether they had voted to request the Justice Department to intervene in the court case on Entergy’s behalf.

“If the state of Vermont chooses energy efficiency and sustainable energy for its future, instead of an aging and trouble-ridden nuclear power plant, it is not the place of the NRC to prevent us from doing that,” said Sanders.

“The NRC’s mandate is very clear,” Sanders continued. “Its concerns begin and end with safety. It is not supposed to be the arbiter of political or legal disputes between a $14 billion energy company and the people of Vermont.”

“Privileged” and “frank” discussions?

Jaczko, describing the conversations in question as “privileged” and “frank legal discussions,” acknowledged that Entergy representatives had met with NRC staff at the company’s request.

At the hearing, Jaczko said that he didn’t see that there was a preemption issue in the case, which will be considered in U.S. District Court on Thursday.

Jaczko did not comment on whether the NRC wished to address other issues in the case.

Previously, the NRC has said that the commission would not become involved in preemption issues, saying Vermont had its place in the process. “We don’t believe it’s our role to get in the middle of those disputes,” NRC Region 1 Spokesman Neil Sheehan told The Commons in April.

Sanders questioned whether representatives of Vermont had had a chance to meet with NRC staff as well.

Jaczko responded that he was not aware of any meetings.

Commissioners William D. Magwood IV and Kristine Svinicki, echoing Jaczko, informed Sanders that the Justice Department had told them not to comment on the matter.

In conversations with the Justice Department, Svinicki said, officials had asked her to relay that it has litigating authority on the federal government’s involvement in this matter.

“The litigating posture of the U.S. is under active deliberation,” she added. “The DOJ asked us in our testimony today that we not comment further.”

Svinicki said later in the hearing that Entergy staff had asked to meet with the appointed NRC commissioners in addition to Entergy's meetings with NRC staff, but that Entergy eventually withdrew the request, because the DOJ expressed concerns.

Sanders also pressed commissioners on whether they agreed with the U.S. Supreme Court’s ruling in the Pacific Gas & Electric v. California case in 1983, which said that states have the right to refuse (or otherwise regulate) a nuclear plant for economic and other reasons that go beyond radiological safety.

The commissioners said that, “in general,” they agreed.

“Deeply disturbed”

In the public involvement section of its website, the NRC describes itself as “an independent regulatory agency that prides itself on openness,” one that “is pleased to take an active role in President Barack Obama’s Open Government Initiative, with its focus on open, accountable, and accessible government.”

The agency also says it has “a long history of, and commitment to, transparency, participation, and collaboration” in its regulatory activities.

In Sanders’ view, the NRC has not lived up to that policy.

After the hearing, Sanders said that he was “deeply disturbed” that the NRC had refused to make the details of its vote public.

“In my view, the federal government should not intervene in the lawsuit,” Sanders said, saying that federal law “is very clear that states have the authority to reject nuclear power for economic reasons.”

At the end of the hearing, Sen. Barbara Boxer, D-Calif., told commissioners that she shared Sanders’ concerns about states' rights.

“I would question all of you ducking this question. I think it’s wrong,” she said. “I think you, all of you, should meet and think about it. It’s too important. You need to be as transparent as you can be.”

No comment

Others avoided official comment.

In a June 15 e-mail, Entergy spokesperson Michael Burns wrote, “We are aware of the statements made during this morning’s Senate committee hearing, but we have not received any official notification of action by the NRC and therefore are unable to comment at this time.”

He later acknowledged, however, that “Entergy legal staff did meet with NRC legal staff, but I can’t elaborate further.”

Sheehan said that, at this point, he had no information about the NRC getting involved in the lawsuit.

Sheehan said that the 3-2 vote Sanders referred to is still considered informal and will remain so until the commissioners formally meet to affirm it.

Once affirmed, he said, the commission will make the results public.

He said that meetings between commission staff and utilities were not uncommon.

According to Sheehan, companies request meetings to discuss items like licensing actions, plant modifications, and refueling.

“That helps us be better informed,” he said.

But Sheehan also said, although he wouldn’t characterize such meetings as uncommon, very few situations in the country match what is happening with respect to Vermont.

He said that the NRC rarely becomes involved in preemption cases. Speaking generally, he said, the NRC would get involved in a case if there could be issues of precedent.

Sheehan stressed, however, that Jaczko has said he doesn’t believe there’s a role for the NRC in the Entergy case against the state of Vermont.

The case, said Sheehan, is very specific to Vermont because the state “changed its law” and Entergy is challenging the change. People can’t read more into the situation or case at this time, he said.

Sheehan noted that the NRC will hold a public meeting at Brattleboro Union High School on Wednesday, June 22 from 6:30 p.m. until 9 p.m. NRC representatives will present the commission’s assessment of safety performance at Vermont Yankee for 2010.

He said that the agency will explain what it knows about the meeting at that time.

The Justice Department declined an interview request with The Commons.

In an email, DOJ spokesperson Charles Miller said that the department “has no comment in regard to your inquiry.”

When asked to confirm whether the Justice Department did meet with NRC representatives and told them not to comment on the matter, Miller responded via e-mail, “Unfortunately, there is nothing I can address in regard to this matter.”

Vermont Attorney General surprised

Vermont Attorney General William Sorrell said that he was surprised by the NRC’s “apparent change of stance” on preemption.

That the commission may have requested the Justice Department to intervene, he said, reflects the possibility that the NRC is shifting its position.

If the NRC is angling to expand federal preemption issues beyond radiological safety, it would represent a “major sea change” in policy, he said.

The court case reconvenes Thursday, June 23 in U.S. Federal Court in Brattleboro. Judge J. Garvan Murtha is presiding.

According to Sorrell, Murtha accepted an additional legal reply from the state over Entergy’s objections on June 16.

Sorrell said that Entergy “shifted the sands” by introducing new arguments in its latest filing related to the company’s preliminary injunction request to keep the plant open past 2012.

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Originally published in The Commons issue #106 (Wednesday, June 22, 2011).

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