Public Utility Commission says Entergy can't confront state's VY experts

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VERNON — Entergy won't be allowed to question consultants who are helping state regulators decide whether Vermont Yankee should be sold.

The Vermont Public Utility Commission says it has decided to hire a Georgia-based consulting firm, GDS Associates Inc., to sift through evidence in the complex case.

And in a new ruling, the commission says plant owner Entergy will not have an opportunity to see that firm's work or ask questions of two consultants who are expected to be involved in the matter.

"The proposed consultant, like commission staff, will not provide any evidence in this case, and, accordingly, communications between the consultant and the commission will not be subject to discovery or cross examination," two utility commission members wrote in a Dec. 1 order.

An Entergy spokesman on Monday said the company had no comment on the ruling.

Entergy wants to sell the idled Vernon nuclear plant to New York-based NorthStar Group Services, which says it can clean up most of the site as early as 2026. By contrast, Entergy's cleanup plan could extend to 2075.

The sale cannot happen without approvals from the state Public Utility Commission and the federal Nuclear Regulatory Commission.

The state's review has lasted for more than a year, and it is expected to continue well into 2018. Last month, the commission announced that it intends to hire a consultant to evaluate "various technical issues" related to the sale.

The consulting cost, estimated to fall between $50,000 and $100,000, will be billed to Entergy and NorthStar.

The proposal spurred debate, but not because of the cost. Rather, Entergy protested that the consultant's role would be "impermissibly broad," and pointed out that the company would "have no opportunity to probe the consultant's analysis and conclusions."

Several other entities involved in the Vermont Yankee sale case - the state Public Service Department, the New England Coalition and the Conservation Law Foundation - also chimed in. They expressed general support for the commission's plan while also seeking assurances about a consultant's responsibilities and public transparency.

After considering those issues, the utility commission says it has decided to go ahead with hiring GDS, which has a regional office in Manchester, N.H. The company's website says it employs 175 people in seven locations, with a "broad range of expertise" that includes electric utilities.

The state identifies two GDS employees that will be working on the Vermont Yankee case - William Jacobs and Richard Polich. According to state documents, both have more than 30 years of experience in the energy industry, including experience with nuclear issues.

After learning of the state's intention to hire GDS, Entergy's attorneys said they were satisfied that the company presented no risk of bias. But the attorneys still argued that the consultants' work should be made public and that Entergy should have a chance to depose and cross-examine the state's experts.

That won't happen.

The utility commission says the consulting firm will take on a role identical to duties typically assigned to the commission's staff. For example, consultants will "assist the commission in identifying issues and areas for further inquiry so that the commission may seek clarifications and additional evidence," officials wrote.

Also, the consultants "will assist the commission in assessing the reliability and credibility of technical evidence," the utility commission's order says.

At the same time, the commission promised to "rely solely on the evidence in the record" when deciding the Vermont Yankee case. The commission won't make decisions "based on any independent analysis of the record evidence by the consultant or based on spreadsheets, data or programs not in evidence."

"Accordingly, the commission sees no more basis for making available to the parties any of the consultant's work product than it would in the case of analyses performed by its staff," commissioners wrote.

While the commission overruled Entergy's objection, its order does address NorthStar's desire to keep some of the case's documents confidential. The consulting contract "will include provisions to protect the confidentiality of information provided to GDS," commissioners wrote.

Sandra Levine, a Montpelier-based senior attorney for the Conservation Law Foundation, said the utility commission addressed her organization's questions by giving the Vermont Yankee consultant "a more limited role" than some initially had envisioned.

"It is good the (utility commission) is seeking the expertise it needs to help it evaluate this case," Levine said. "It is certainly a complex case and one that will affect Vermont for generations."

Mike Faher reports for the Brattleboro Reformer, VTDigger, and The Commons. He can be contacted at mfaher@vtdigger.org.

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