The State of Vermont may not shut down a federally-approved nuclear power plant, the federal appeals court for the Second Circuit in New York ruled last week. Vermont has sought to prevent the Vermont Yankee reactor, whose original 40-year license expired in March 2012, from being re-licensed, but the court ruled that federal regulation of nuclear power safety preempts state authority over safety completely. The Nuclear Regulatory Commission has already re-licensed the plant for another 20 years.
The wrinkle in the case, Entergy v. Shumlin, is that neither of the two laws struck down by the Court—known as Act 74 and Act 160—attempted to regulate safety. Passed in 2003 in response to Entergy’s request to expand its on-site waste storage facilities, Act 74 allowed the expansion, but barred the storage of waste generated after the plant’s license expiration in March 2012 without state legislative approval.
Act 160, which became law in 2006, states that “a nuclear energy generating plant may be operated in Vermont only with the explicit approval of the General Assembly.” It further provides that in deciding whether to allow a nuclear plant, the legislature is to consider “the state’s need for power, the economics and environmental impacts of long-term storage of nuclear waste, and choice of power sources among various alternatives.” The courts have long ruled that although states may not regulate nuclear power plant safety, it is up to the states to decide whether nuclear power is needed or economical.
Nevertheless, the appeals court unanimously held that despite the stated reasons for the two laws, statements made by legislators while the bills were on the floor indicated that their real purpose was to kill the Vermont Yankee reactor because of safety concerns.
“The nuclear power industry has just been delivered a tremendous victory against the attempt by any state to shut down federally regulated nuclear power plants,” crowed Kathleen Sullivan, a lawyer for Entergy, which owns Vermont Yankee.
In the only legally arguable portion of the opinion, however, the court also held that Vermont may not close the reactor for being too expensive because it operates in a competitive market for electricity, implying that the state may not pursue policies based on alternative economic theories.
Vermont Gov. Peter Shumlin (D) reiterated his opposition to the plant, saying it is “not in the best interest of Vermont,” and suggesting the fight was not over: “While I disagree with the result the 2nd Circuit reached in preempting Vermont’s Legislature, the process does not end today.”
The appeals court also struck down a lower court ruling that could have allowed Entergy to force Vermont to pay its legal bills.
To Learn More:
Appeals Court Blocks Attempt by Vermont to Close a Nuclear Plant (by Matthew L. Wald, New York Times)
Entergy Wins Key Appeals Court Ruling on Vermont Nuclear Plant (by Nate Raymond, Reuters)
Entergy v. Shumlin (2nd Circuit Court of Appeals) (pdf)
Federal Judge Says States Not Allowed to Regulate Nuclear Safety (by Noel Brinkerhoff and David Wallechinsky, AllGov)
“Shut it down! Shut it down! Shut it down!” rang through the cavernous grand ballroom of the Doubletree Hotel in Tarrytown, NY, last week when the Nuclear Regulatory Commission staged an Orwellian charade promoted as an “open house” held to reassure the public that the Indian Point nuclear power plant was, as the New York Post headlined the following day, “Still Safe!”
The NRC’s annual “safety assessment” of the plant, which sits on the Hudson River 30 miles north of New York City, was based on 11,000 hours of ”inspection activities.” It found that Indian Point performed “within expected regulatory bounds” and the 25 matters that do require attention but “no additional NRC oversight,” are ‘low risk’, or have “very low safety significance.”
“So,” the Post mused, “will this finally silence the ‘shut it down’ crowd? … Don’t hold your breath.”
But do keep your fingers crossed…if you’re one of the 17.5 million people living within 50 miles of the plant…
“The NRC’s annual assessment completely fails to address the public’s primary concerns about Indian Point — evacuation planning, earthquake risk and nuclear waste storage post-Fukushima,” said Phillip Musegaas, a lawyer with Riverkeeper, an environmental group based in Ossining, NY.
Those concerns were addressed in Riverkeeper’s briefing held in the rear of the ballroom prior to the NRC’s hearing that night. Some highlights:
Manna Jo Green, a member of the town council of Rosendale and Environmental Director of Clearwater, who recently toured the plant with the Atomic Safety and Licensing Board: “We are calling for expansion of the evacuation plan from 10 miles to 50 miles and hardening of the fuel pools. There is no protection for those fuel pools…You couldn’t see the fuel rods in fuel pool 2 because the water was so murky… it is so densely crowded with fuel rods, you can’t even get equipment in to fully inspect it …”
Like Riverkeeper, Clearwater in Beacon, NY has filed multiple contentions with the NRC in the legal fight to deny Entergy Corporation a 20-year license extension for Indian Point. Current licenses for the two operating reactors expire in 2013 and 2015. Relicensing hearings are expected to begin in October.
John Armbruster, a seismologist with Lamont Doherty Earth Observatory of Columbia University, cited the study, published in 2008, that revealed there was a second fault line passing near Indian Point in addition to the Ramapo fault line.
“We believe this is a significant new development in what might happen to Indian point. We have been asking since 2008 for our new results to be incorporated into the hearings for the relicensing of Indian Point – and that has been rejected as ‘outside of scope’. What was done when Indian Point was designed 40 years ago is obsolete and Fukushima tells us we have to prepare for the things that are very unlikely.”
Peter Rugh of Occupy Wall Street’s Environmental Solidarity Work Group: “The NRC has issued untold numbers of exemptions to Indian point – untold because they don’t keep track of the safety exemptions they grant to this corporation and to other nuclear operators. Entergy took in 11 billion in 2011 so they can afford to take every possible safety measure here, including shutting down…We want the workers at these plants to be retrained in the green energy sector. We must offer them better employment opportunities than being the gravediggers for New York City, for Westchester County, and for New Jersey.”
Paul Gallay, Executive Director of Riverkeeper, countered claims that shutting down Indian Point would cause an energy shortage and lead to blackouts. Results of a study commissioned by Riverkeeper and the National Resources Defense Council published earlier this year concluded otherwise.
“There’s enough surplus power in this region to turn off Indian Point tomorrow and we won’t have any kind of shortage if we don’t do another thing until 2020,” Gallay said. “In the meantime, you can build two Indian Point’s worth of replacement power. You can save 30 percent of our power needs just by energy efficiency… We do not need the power — they want to fool you into believing we do.”
During the open session, an NRC panel sat at the front of the room but no presentation was made to the public and no explanation of the safety “assessment” was given. NRC posters were on display in the hallway outside the ballroom, and Indian Point inspectors were available for questions. But not for answers.
Stepping up to the mike, Mark Jacobson, a co-founder of the Indian Point Safe Energy Coalition (IPSEC), asked, “Where is Entergy? Why isn’t Entergy in the room? We want to ask them questions.”
Getting no reply, Jacobson told the panel that he had questioned inspectors about the status of the radioactive leak under Unit 2’s transformer yard. “They said they didn’t know. It’s a leak that’s been likened to the size of the Central Park reservoir… and we can’t find out about it at this annual meeting. Who are we supposed to ask?”
Indian Point’s leaks are contaminating groundwater and the nearby Hudson River with radioactive carcinogens including strontium-90, cesium 137, and iodine 131.
The impossibility of evacuation in the event of an accident at Indian Point stirred the loudest protest of the night.
Citing the recent news report from the Associated Press that revised – and watered down – emergency planning and evacuation procedures had been adopted late last year without broad public input, Marilyn Elie, also of IPSEC, said, “Nobody has known about this and you dare, in post-Fukushima, you dare to weaken and have fewer evacuation drills.
“Region 1 could not even tell the commissioners this is not a good idea to secretly pass a new evacuation plan, to not let the stakeholders know…We need to call right now for a whole new NRC – all the commissioners need to be withdrawn – and it needs to go right down the line until it gets to Region 1.”
John Raymond is a freelance writer in New York City.
- Emergency Evacuation, Drill Requirements Quietly Cut While Nuclear Regulators Consider Doubling Length of License Extensions (my.firedoglake.com)
- Meltdown at the Nuclear Regulatory Commission (counterpunch.org)
- Energy Issues: Entergy Has Demonstrators Arrested By ABBY LUBY (yonkerstribune.typepad.com)
- As Reactors Age, the Money to Close Them Lags (nytimes.com)
NRC asked to investigate recent pattern of failures
The Vermont Yankee nuclear power plant is operating at reduced power due to problems with the condenser tubes, which are reported to be leaking. Most nuclear power plants replace their condenser at between 20 and 30 years of continued operation, while Vermont Yankee’s condenser has been in operation over 39-years.
Condenser leaks adversely affect reliability and the water quality of the water that is used inside the nuclear plant as the primary reactor coolant. Cooling for the plant’s steam condenser is provided from the adjacent Connecticut river. At the beginning of February, nuclear engineers at the plant discovered that the condenser was not operating efficiently. There have been a string of outages in recent months that Yankee has had to reduce power because of problems with the condenser.
Condensers have been known to fail catastrophically, as occurred at Entergy’s Grand Gulf Plant, shutting down the plant for several months. Thus failure of the Condenser would have a tremendous impact upon Vermont Yankee’s ability to operate within cost-effective margins. The condenser has thousands of small tubes, that are made out of admiralty metal, copper, stainless steel, or titanium. The Condenser has two major functions:
- Condense and recover the steam that passes through the turbine (Condensers are used in all power plants that use steam as the driving force)
- Maintain a vacuum to optimize the efficiency of the turbine.
A regional spokesman for the NRC said the plastic coating Entergy used on the condenser tubes has caused the system to run less efficiently. If the epoxy is the source of the issue, the plant will have to run at 50 percent power levels while workers strip epoxy off of the tubing in each of the sections of the condenser. Vermont Yankee spokesman said the condenser has been upgraded over time and the tubes were “re-sleeved” several years ago.
The cause of the “reduced performance” of the condenser isn’t clear at this point. Last week the back pressure level went up to 4.5 pounds per square inch. The maximum level for the plant is 5 psi, according to Sarah Hofmann, deputy commissioner of the Department of Public Service. At 7 psi, the plant is designed to SCRAM.
The state says Yankee technicians made a mistake and left a metal plate inside the component as they were trying to troubleshoot the issue last week. The plate was a piece of metal large enough for workers to stand on. Neil Sheehan is a spokesman for the Nuclear Regulatory Commission said the agency is aware of the incident, adding, “ It’s an issue that’s affected not only Vermont Yankee but numerous other plants over the years where there’s foreign material that’s left behind when a job is completed. We don’t think that’s acceptable and we certainly had that discussion with them and our inspectors will certainly be addressing that in an upcoming inspection report.”
Entergy is unlikely to replace the condenser until a decision is made in its favor to extend the plants current operating license in Vermont, which expires on March 21st, 2012, but the NRC issued a new operating license last year allowing the plant to continue operating until 2032.
In testimony, Fairewinds Associates noted that rather than invest $200,000,000 (in 2016 dollars) in a new condenser, Entergy may choose instead to shut down the plant as it would be difficult to recoup such a large investment during the final years of the plants life. Especially if Entergy is losing more than it is profiting for extended periods, which may then cause the licensee to make drastic economic decisions in the face of mounting pressure to block the extension of the plants operating license. Entergy has admitted Vermont Yankee is a minimal profit producer and additional costs may prove too expensive, especially with the added costs of post-Fukushima upgrades, and conditions imposed after the NRC issued its 20-year extended license.
The NRC recently released an annual report on Yankee that cited a number of what it called non-safety issues at the plant. Since Louisiana-based Entergy Corporation purchased Vermont Yankee from state utility companies in 2002, the plant has had a string of physical plant problems including a water tower collapse in 2007 and a transformer fire. In January 2010, the company revealed that underground pipes at the plant were leaking tritium into soil on the compound, which is located on the banks of the Connecticut River.
The recent incident prompted the Shumlin Administration to ask federal regulators about a recent series of human errors at the plant. Public Service Commissioner Elizabeth Miller wrote Thursday to the head of the NRC’s Northeast region to say she’s concerned about what she called a pattern of human errors at the Vernon reactor during the past 15 months.
Commissioner Miller says the most recent incident of the metal plate left inside the condenser raised questions about whether Yankee was experiencing a pattern of human errors. “In looking at the reports I had a concern that there had been a number of incidents and felt it was appropriate to ask the NRC to explain why that pattern of incidents didn’t deserve further attention or further action by the NRC and so that’s why we sent the letter.”
Miller lists five errors, ranging from failure to remove a plastic cover from a pump before it was installed to inaccurately measuring the dose rate from a shipment of radioactive waste. Miller’s letter to the NRC cites other mistakes, including a case last fall when Yankee technicians misread a work order and shut down a breaker which resulted in a brief loss of the shutdown cooling system, and another case in December when workers mistakenly tripped the wrong diesel back-up generator.
The NRC labeled all five incidents as minor, but Miller is questioning why they aren’t being considered as part of a pattern. Yankee spokesman Larry Smith said he could not comment on Miller’s letter. The NRC said it would review it. In addition to conducting two reviews in 2012 — at mid-cycle and end-of-cycle — the NRC will also review Yankee’s implementation of an industry initiative meant to control degradation of underground piping.
In 2009, the Vermont Senate voted to deny permission for Entergy to obtain a certificate of public good from the Public Service Board for re-licensure of the plant. In February 2010, the Vermont Senate voted 26 to 4 against re-licensing of the Vermont Yankee Nuclear Plant after 2012, citing radioactive tritium leaks, misstatements in testimony by plant officials, and other documented on-site events. Entergy sued the state over several statutes, including one that gives Vermont jurisdiction over the continued operation of the plant past the 40-year deadline and a say in the long-term storage of nuclear waste on site.
A state law that prevents the plant from storing spent fuel at Vermont Yankee after that date without approval from the Public Service Board. Last week the board questioned whether it had the ability to let Vermont Yankee keep producing spent fuel and pushed Entergy attorneys on why they hadn’t addressed the impending issue earlier. Federal district court Judge J. Garvan Murtha ruled the Atomic Energy Act pre-empted the two state laws, but his decision left the Public Service Board’s discretion intact. The Public Service Board held a status conference March 9 at which they would not guarantee that the plant would keep operating, and briefs are due Friday.
When the board reopened the proceeding and asked whether the plant could continue to operate, Entergy fired off an immediate request to the court asking it to let the plant operate after March 21, implying it might continue operating, even if the board says it should not.
“[O]n March 9, 2012, the PSB made clear that it does not necessarily agree with the AG’s and the DPS’s view. In the event that the PSB ultimately disagrees, Plaintiffs will be forced either to cease operating or, if they defy the PSB by continuing to operate, to face the prospect of a diminished credit rating, a loss of crucial employees, and a demerit in the PSB’s consideration of Plaintiffs’ petition for a new CPG.”
Entergy has a track record of deferring maintenance, exampled by the 2007 collapse of the cooling towers, was found to be caused by corrosion in steel bolts and rotting of lumber. Some still think that a corporation that buys an aged nuclear plant fully aware of the pending decommissioning agreement with the state, ought to be bound to decommission it. However, right in the middle of the Fukushima disaster the NRC grants another 20 years to an old, trouble ridden plant, doesn’t that just beat all…
- Vermont Appeals Vermont Yankee Decision (jeceblog.com)
- Court to Vermont: “Drop Dead” (alethonews.wordpress.com)
- NRC finds Entergy Safety Commitment Track Record Lacking (enformable.com)
- Vermont Yankee Power Reduced Due to Lubrication Issues With B Turbine Pilot Valve (enformable.com)
- Former Vermont Governor Rips NRC and Vermont Yankee Safety Record (enformable.com)
- Entergy must change the way they do business (enformable.com)
So Much for State’s Rights
A federal judge has told the people of Vermont that a solemn contract between them and the reactor owner Entergy need not be honored. The fight will almost certainly now go to the US Supreme Court. At stake is not only the future of atomic power, but the legitimacy of all deals signed between corporations and the public.
Chief Justice John Roberts’ conservative court will soon decide whether a private corporation can sign what should be an enforceable contract with a public entity and then flat-out ignore it.
In 2003 Entergy made a deal with the state of Vermont. The Louisiana-based nuke speculator said that if it could buy and operate the decrepit Vermont Yankee reactor under certain terms and conditions, the company would then agree to shut it down if the state denied it a permit to continue. The drop dead date: March 21, 2012.
In the interim, VY has been found leaking radioactive tritium and much more into the ground and the nearby Connecticut River. Under oath, in public testimony, the company had denied that the pipes that leaked even existed.
One of Yankee’s cooling towers has also collapsed… just plain crumbled. One of Yankee’s siblings—Fukushima One—has melted and exploded (VY is one of some two dozen Fukushima clones licensed in the US).
In the face of these events, the legislature, in partnership with Vermont’s governor, voted 26-4 to deny Entergy a permit to continue. But the company is determined to continue reaping huge profits on a 35-year-old reactor — long since amortized at public expense — with very cheap overhead based on slipshod operating techniques where safety always comes second. Along the way Entergy has also tried to stick Vermont Yankee into an underfunded corporate shell aimed at shielding it from all economic liabilities. To allow VY to continue fissioning, Judge J. Garvin Murtha latched onto Entergy’s argument that the state legislature committed the horrible sin of actually discussing safety issues. These, by federal law, are reserved for Nuclear Regulatory Commission. He chose to ignore the serious breach of contract issues involved.
As Deb Katz of the Citizens Awareness Network puts it: “Entergy’s lawyers cherry-picked legislators’ questions about safety” from a previous debate relating to nuclear waste. “Judge Murtha supported the corporation over the will of the people.”
The surreal nature of telling a state it can’t vote to shut a reactor because it dared to consider the public health dates to the Atomic Energy Act of 1954. To paint a happy face on the atomic Bomb, Congress essentially exempted the nuclear power industry from public accountability. It gave the Atomic Energy Commission sole power to both regulate and promote its “too cheap to meter” technology. Some 67 years later, Judge Murtha says the legislature’s encroachment on the province of safety means Entergy can violate its solemn legal agreement with the people of Vermont.
In practical terms, this could mean that any corporation can bust any public trust on even the flimsiest pretext. Let the corporate lawyers find some pale excuse and the company can skirt its contractual obligations. In the hands of the supremely corporatist Roberts Court, this case could join Citizens United in a devastating one-two punch for the unrestrained power of the private corporation. It would also put the reactor industry even further beyond control of the people it irradiates.
Thankfully, the judge did not entirely rule out the possibility of the state taking some kind of action. Vermont’s Public Service Board still has the right to deny Entergy an extension. Perhaps the commissioners will ban the word “safety” from all proceedings. If they do say VY must be shut, Entergy’s legal team will certainly [seek] even newer, more creative ways to appeal. Vermonters will stage a shutdown rally March 21. Local activism against the reactor continues to escalate. No US reactor has been ordered and completed since 1973. Shutting Vermont Yankee or any other of the 104 American reactors now licensed might well open the floodgates to shutting the rest of them, as Germany is now doing.
Karl Grossman has suggested Vermont use eminent domain to shut VY, as New York did 20 years ago to bury the $7 billion Shoreham reactor, which was stopped from going into commercial operation.
However it happens, the people of Vermont are in a race against time to prevent another Fukushima in their back yard—which is also all of ours.
“When this rogue corporation is again rejected,” says Katz, “the will of the people and democracy will be upheld. Lets commit to doing whatever we can to at last make a nuclear corporation keep its word.”
Harvey Wasserman, a co-founder of Musicians United for Safe Energy, is editing the nukefree.org web site.