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State wraps up hearings for Vermont Yankee

Shadis permitted to testify after challenge from Entergy lawyers

BRATTLEBORO—Ten days of technical hearings before the Public Service Board on the Vermont Yankee nuclear power plant wrapped up the final week of February.

A slightly road-weary Raymond Shadis, consulting advisor and expert witness for the anti-nuclear New England Coalition, provided his views on the the fight over Vermont Yankee’s state-awarded Certificate of Public Good.

“There’s a real fight on,” said Shadis of the CPG hearing.

The PSB said it anticipates announcing in November whether it will award the CPG. Meanwhile, Shadis said he feels the Vermont Public Interest Resource Group (VPIRG), the Conservation Law Foundation, the Vermont Natural Resources Council, the Connecticut River Watershed Council, and NEC are “holding their own” as interveners against Entergy’s five law firms.

After challenges from Entergy Corp., VY’s Louisiana-based owner, Shadis was admitted into the record as an expert witness.

Entergy, Shadis said, had asked to strike his testimony and exhibits. The one portion of his testimony not admitted, about 5 percent, said Shadis, was on cold shock stress in fish that have acclimated to warmer waters, like those near nuclear plants, but might not thrive in the cooler waters away from the plant.

When asked if he felt the admittance of his testimony was a positive, Shadis fired back, “Hell yes."

Vermont Yankee, Vermont’s lone nuclear plant, must receive a CPG to continue operating. Its current certificate expired last year. The plant received its federal operating license shortly before the Fukushima nuclear disaster in Japan in March 2011.

Entergy and the state have duked out in court how much the state can regulate the 605-megawatt, boiling water reactor located in Vernon. Entergy claims the state attempted to preempt federal authority by regulating nuclear safety, including criteria used to issue a CPG.

The corporation has multiple court cases open on VY, including a federal case against the state. This case is before the Second Circuit Court of Appeals in New York City.

In 2012, U.S. District Court Judge J. Garvan Murtha ruled in Entergy’s favor, saying that the state had overstepped its bounds on nuclear safety. Murtha added, however, that the state is permitted to regulate in some non-nuclear safety areas.

According to Shadis, Entergy’s arguments before the PSB mirrored the arguments it made before Murtha. Entergy claims that all of Vermont’s attempts to regulate the plant stem from concerns over nuclear safety.

Entergy had stated early on that if it receives a negative ruling from the PSB, it would appeal. According to Shadis, the corporation also spent considerable time arguing that it didn’t need to appear before the board for the CPG.

Shadis said that Entergy’s lawyers have worked determinedly to dismiss any concerns from the interveners that don’t fit into the company’s legal argument. The lawyers have called counter arguments “irrelevant” or “lodged in pretext for safety.”

According to Shadis, Entergy’s claims of “pretext for safety” were comparable to someone saying he didn’t like the color of his necktie and his response being a harangue about nuclear safety.

In Shadis’ view, opponents left the hearing “outraged” at Entergy’s constant objections to counter-arguments.

Shadis said he believes Entergy is using the CPG hearing to build its case for appeal to either the Vermont Supreme Court or in federal court.

‘The end of the line...’

The CPG hearing represents the “last regulatory proceeding for Vermont,” Shadis said after driving from the hearings in Montpelier to Brattleboro last week.

According to Shadis, the CPG proceedings represent the final stage for Vermont having a say in VY’s operation.

“It’s literally the end of the line for those controlling activities [such as requiring a CPG]. If Entergy prevails, they’ll never have to come to the state for approval for anything,” said Shadis.

Entergy could redevelop the site, sell the plant, or increase the power generation without state input, he said.

Shadis said he thought the PSB’s behavior reflected an understanding of the critical nature of the hearing.

Entergy has defined preemption outlined in Murtha’s 2012 ruling as the broadest possible definition of preemption, said Shadis.

In its arguments before the PSB, said Shadis, Entergy attorneys went beyond arguing that radiological safety is preempted: The legal team argued for taking all plant operations off the table.

In Shadis’ view, interveners DPS and PSB give Murtha’s preemption ruling a narrower definition.

Prior to 2001, Vermont utilities owned VY.

According to Shadis, when Entergy eyed purchasing Vermont Yankee in 2001, the corporation’s plan for the plant had three phases: increase power generation by 20 percent; start onsite dry cask storage of spent nuclear fuel; and extend the plant’s operating license beyond 2012.

The NEC asked how much control the state would have should the plant become a wholesale merchant plant as Entergy said it intended.

Shadis said multiple parties in 2001 worried Entergy would “call preemption” if the state tried to maintain some say in the plant’s future. Entergy agreed, in turn, saying it would seek a CPG for all three phases.

“The only reason they [Entergy] have to come to the PSB at all … is because of this agreement,” Shadis said.

Enough non-nuclear safety issues

According to Shadis, the main point of his testimony before the PSB centered on Vermont Yankee having enough multiple non-nuclear and non-radiological safety issues to ax it receiving a new CPG.

The plant has “big negatives to be thrown on the scale,” said Shadis, pointing to VY’s cooling towers.

Cooling towers, according to Shadis, emit mostly vapor that is “cleaned” of toxins. However, cooling towers of all sizes, and not exclusive to power plants, also emit water droplets. These droplets can travel as much as a mile on the wind and can contain concentrated amounts of contaminants such as biocides used to clean the plant, or heavy metals that may pool in the cooling tower basin.

The NEC has asked Entergy for the chemical content of VY’s cooling tower droplets. Entergy replied that an analysis has not occurred, said Shadis.

The droplets might not pose a health concern, said Shadis. But without rigorous analysis, it’s impossible to know for certain.

According to the Centers for Disease Control and Prevention, American Legion members at a convention in Philadelphia in 1976 contracted a pneumonia later termed Legionnaires’ disease. The infection’s source was traced to bacteria growing in nearby cooling towers.

VY also has multiple maintenance issues related to the plant’s age and the expense of forthcoming equipment upgrades developed in the wake of the nuclear accident at Fukushima, said Shadis.

Shadis believes the corporation is “running to failure” by not properly maintaining components of the plant. Some of these mechanical components, although not considered safety-related by the NRC, could shut the plant down if they malfunctioned.

According to Shadis, another concern is that Entergy, and many nuclear plant operators, practice online maintenance.

Power plants, he said, have redundant safety systems in the event of an emergency. Tests or repairs to the systems ideally occur by taking the systems “off line,” shutting them down and checking everything out.

With online maintenance, repairs take place during plant operation.

The power companies “make a bet” with online maintenance that the system under repair is either not needed during an emergency or that the system won’t contribute to a severe emergency, he said.

Shadis likened online maintenance to climbing onto the wing of a two-engine aircraft in-flight to repair an engine.

According to Shadis, a few years ago, an inspection port on the feed water system rusted and leaked. The feed water system, part of the steam system that generates power, pipes water into the reactor. Employees investigated and fixed the leaky port.

The same problem happened with another port the following year.

Shadis said the NEC raised their concern about the steam water system. The NRC responded that as the system wasn’t safety related there was no issue.

Aiming for fewer outages due to maintenance or safety is a “numbers game” most utility companies play, said Shadis.

When Entergy brags about running 500 days without an outage, they’ve been making the same bet, Shadis said. “It doesn’t come without a price. They’re pushing their luck and everybody else’s luck.”

Not financially viable?

“We’re trying to figure out what the game is,” said Shadis of Entergy’s fight to keep VY open.

Entergy has refused to discuss its plans for VY or disclose its finances, said Shadis.

Still, Shadis said he feels the plant’s financial future looks dim.

VY has not turned a profit since 2007, he said. Meanwhile, the NRC in the wake of Fukushima has called for expensive upgrades throughout the industry.

Shadis speculated that Entergy’s motive does not rest with saving VY. Instead, he said, the corporation likely is thinking ahead to saving its other merchant plants, such Indian Point in New York. Peer pressure not to throw these court battles from other nuclear plant owners may also play into Entergy’s favor.

In Shadis’ view, VY’s financial viability hinges on Entergy’s maintenance practices.

Entergy is weighing how much money to invest in replacing, repairing, or upgrading the plant against letting parts “run to failure,” said Shadis.

“On balance, we think that’s what’s going on,” he said.

He said he believes Entergy has instructed its employes at VY that it doesn’t want to finance all repairs and to be judicious with what repairs employees report. According to Shadis, Maine Yankee, which closed in 1997, took that stance.

Shadis said he also bases this assertion on information from Entergy’s 2004 business plan the corporation submitted to the PSB during the power uprate hearings. In that plan, Entergy said that VY must be mindful of maintenance and operation costs.

Shadis called Entergy’s legal strategy “swamping.”

“It’s mind-boggling how much [paper] they generate,” he said.

If the interveners were baseball players swinging at every ball Entergy pitched, said Shadis, “our arms would break off.”

Shadis admitted that fighting Entergy in court was stretching the NEC’s resources.

The hearing marked the midway point in NEC’s nine-month timeline. Entergy is expected to file rebuttals to the information in the technical hearing in a few weeks. Legal back and forth of discovery, and interveners filing rebuttals to Entergy will follow, said Shadis.

The next phase of technical hearings will involve narrowing and focusing arguments. Filing of briefs and reply briefs follows in August.

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Originally published in The Commons issue #194 (Wednesday, March 13, 2013).

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