VermontYankee/NorthStar: State agencies OK with confidentiality on Vt. Yankee buy

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VERNON — Two state agencies aren't objecting to an unusual confidentiality request from the proposed buyer of the Vermont Yankee nuclear plant.

The state Agency of Natural Resources and Department of Public Service both agree that NorthStar Group Services is justified in seeking to restrict public access to two documents that contain key details of the plant's cleanup plan.

While critics have raised transparency and accountability concerns, state officials say they agree that the information in question should be protected "based on NorthStar's representations regarding the highly confidential and sensitive nature of those documents."

NorthStar wants to buy the shut-down Vernon plant from Entergy by the end of 2018. If that happens, NorthStar has pledged that most of the site will be decommissioned and restored by 2030 — decades sooner than Entergy had been planning.

The sale is subject to approval by the federal Nuclear Regulatory Commission and the Vermont Public Service Board.

Entergy and NorthStar filed a joint application with the Public Service Board in December, and the companies say they have produced about 1,500 public documents so far as part of the state's review process.

But NorthStar doesn't want to turn over two documents — one called a "deal model," and the other a "detailed pay item disbursement schedule." They contain specific information about NorthStar's plan to break down Vermont Yankee decommissioning into 900 "sub-tasks," and how each task will be funded.

If that information is made public and falls into the hands of competitors for future decommissioning jobs, "NorthStar would potentially lose the opportunity to earn hundreds of millions of dollars of revenue, along with reasonable profit thereon," the company's attorney has written.

There's a standard confidentiality agreement used in Public Service Board cases. NorthStar, however, wants the board to approve much stronger protections via a "special protocol" that includes strict rules for who can see the two documents, and when and how they can view them.

Officials at the Agency of Natural Resources and Public Service Department have decided they're OK with NorthStar's request for "additional protections."

In a joint response filed with the Public Service Board, attorneys for both agencies say they generally "seek to minimize the number and scope of documents treated as confidential and therefore not made available to the public."

But they also point out that there is Public Service Board precedent for granting confidentiality that goes above and beyond the "standard" agreements in these cases. And they say NorthStar's documents seem to fit that bill based on the company's characterizations.

While consenting to the overall concept of confidentiality, state officials did lodge objections to five elements of NorthStar's plan for restricted document access. That prompted a quick response from NorthStar, which modified its proposal in an attempt to remedy four of those five issues.

Also, Agency of Natural Resources and Public Service Department officials noted that they are agreeing only to the aspects of NorthStar's special protocol that pertain to state agencies. There are separate confidentiality provisions proposed for nongovernmental organizations.

Though the state officials say they "disfavor unequal treatment among the parties with respect to access to information," they're leaving it to the nongovernmental parties to object on their own.

That's happening in at least two cases.

The Brattleboro-based New England Coalition on Wednesday sent the Public Service Board a scathing response to NorthStar's confidentiality proposal. And the Conservation Law Foundation signed on in support of the coalition's viewpoints. The coalition argues that it and other intervenors in the Vermont Yankee sale review will be transformed into "bystanders" by the "draconian measures" NorthStar requested — without proving that such confidentiality is needed.

The coalition is particularly concerned about the fact that, in order to see the documents, its experts and attorney would have to visit the Montpelier office of NorthStar's attorney. The review would be supervised, and no note-taking, copying or other reproduction would be allowed. This would make subsequent cross-examination or expert testimony about the documents "impossible," since those who view the information "will have to commit all of the details to memory," the coalition says.

New England Coalition also is concerned about the possibility that NorthStar — under the company's proposal as it is currently written — eventually could ask the state to return the confidential documents.

"Three, five, or 10 or 20 years from now, these documents may be necessary in order for the department, the agency, the office of the attorney general, the public or a party to understand or question why decommissioning or site restoration is falling short or has fallen short of NorthStar's promises," New England Coalition warned.

But if the state eventually relinquishes the documents, "only NorthStar will have copies," the coalition's attorney wrote. "NorthStar will not be subject to the Public Records Act. Long after the commercial value of the documents would be threatened by disclosure, the public will be denied access, because no state agency will possess the documents."

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

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