Vermont Public Service Board overrules Entergy objections to NEC testimony

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BRATTLEBORO >> In its quest to site a new waste storage pad in Vernon, Entergy Nuclear Vermont Yankee lost its bid to prevent the admission of testimony by a consultant to a local anti-nuclear organization.

"In particular, the testimony (of Ray Shadis) could be helpful in assessing whether the environmental impacts of the (Independent Spent Fuel Storage Installation) including aesthetic impacts, are undue," wrote the members of the Vermont Public Service Board, which is considering whether to grant Entergy A certificate of public good to build a second storage facility for dry casks containing nuclear waste. "Similarly, it could relate to the consistency of the ISFSI with the orderly development of the region."

Shadis is a consultant for the New England Coalition, which has opposed the operation of Vermont Yankee nuclear power plant in Vernon since before it began operation in 1972.

"However," noted the PSB, "we want to be clear: At this stage our determination is solely whether the testimony is relevant, not whether it is persuasive. Our conclusion that the testimony meets the evidentiary standard for being relevant in no way reflects the weight that it will be accorded, a matter that we will assess after considering all of the evidence."

Yankee ceased operating in December 2014. Entergy recently announced that movement of the spent fuel out of the plant's spent fuel could begin in 2010, two years ahead of schedule, but that is contingent upon its receiving a CPG for the storage pad.

The waste needs to be stored on site because the Department of Energy has failed to take custody of spent fuel produced by the nation's reactors, as it was supposed to have done by the 1980s. Entergy contends DOE will be ready to take the fuel before clean up of the site is completed over the next 60 years.

The current pad, which has 13 dry casks in place, measures 76 feet by 132 feet. The second proposed pad would measure 93 feet by 76 feet. Storing all the spent fuel produced at Vermont Yankee will require 58 dry casks; 13 are already loaded and are on the original pad at the plant. There are 2,996 spent fuel assemblies in the spent fuel pool and 884 spent fuel assemblies loaded in 13 casks.

"Of course NEC supports moving the fuel into dry cask storage, but it must be done right," said NEC spokesman Clay Turnbull. "These decisions will affect generations to come."

In 2015, Entergy filed an objection to the admissibility of Shadis' prefiled testimony, submitted on behalf of the New England Coalition. Entergy objected because it believed his testimony on what other communities did when confronted with nuclear waste is irrelevant, that his testimony exceeded the scope of NEC's intervention and much of his testimony was pre-empted by federal law.

"Under the Rules of Evidence ... 'relevant evidence' means evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' Under this standard, we find that the testimony meets the standard for relevance," wrote the PSB.

The PSB noted the scope of its investigation included "the local environment, the reuse of the Vermont Yankee property, regional planning and development, and aesthetics."

"The testimony of Mr. Shadis appears to suggest that the process employed in Maine produced a favorable outcome in terms of addressing environmental concerns and the concerns of local interests," wrote the PSB. "These questions fall within the scope of intervention granted to NEC."

A portion of Shadis' pre-filed testimony discussed when the nuclear waste will be removed from the site by the Department of Energy, a discussion Entergy argued was pre-empted by federal law, as exclusive jurisdiction over spent nuclear fuel rests with the United States Nuclear Regulatory Commission.

"NEC states that Mr. Shadis's testimony relates to consideration of the implications of the federal actions — namely, the potential that any of the impacts of the ISFSI may be longer lasting than currently anticipated," wrote the PSB, thereby overruling Entergy's objection on this point. In addition, the PSB is not allowing any of the intervenors to submit testimony related to pre-empted issues.

"However, Entergy VY has not shown exactly what matters are preempted or how any of Mr. Shadis's testimony actually intrudes into preempted matters. Entergy VY merely makes a broad assertion that the testimony is preempted. Examining the testimony, we cannot find that any part of it seeks to regulate spent nuclear fuel or otherwise intrude on the DOE's or NRC's jurisdiction over that fuel."

Shadis' testimony only points out that "the spent fuel might remain on-site for longer than currently forecast, suggesting that this consideration should be weighed when the Board makes its determination on Entergy VY's petition."

Issues related to the DOE's schedule for the removal of spent nuclear fuel also need to be considered by the board, it wrote, and Entergy's objection to the admission of this testimony was also overruled.

Shadis also criticized Entergy's plan for funding of the construction of the second pad, which Entergy objected to as outside the scope of intervention granted to NEC.

While the board agreed with Entergy that the adequacy of the financial assurances themselves is beyond the scope of NEC's intervention, "NEC may present evidence related to the implications of Entergy VY's chosen method for funding construction of the ISFSI on issues within the scope of NEC's intervention."

Bob Audette can be contacted at 802-254-2311, ext. 160.


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