Assistant Professor Don Kreis wrote an op-ed piece April 24, 2010, in vtdigger.org on Vermont Yankee.
Vermont Yankee has gone public with its big internal investigation of Tritium-gate, but state regulators may have left themselves, and the public, without the means to give it the skeptical scrutiny it deserves.
At issue is the probe Vermont Yankee commissioned into the misinformation it provided to the Public Service Board about certain underground pipes at the Vernon facility. Vermont Yankee told the Board there were no such pipes. It turned out that not only did the pipes exist – they were leaking radioactive tritium. Eventually Vermont Yankee fixed the leak, but not before a mighty brouhaha that contributed to the Vermont Senate’s recent decision to block the renewal of the plant’s authority to operate when it expires in 2012.
Morgan Lewis was an interesting choice for this job, which seemed calculated to engender skepticism among Vermont Yankee’s opponents about the independence and objectivity of the firm’s investigation.
One hundred fourteen pages long, the report arrived at the Public Service Board (which regulates utilities) and the Public Service Department (which represents utility customers before the Public Service Board) on Earth Day. The Public Service Department’s commissioner, David O’Brien, promptly blasted the document as a whitewash. Even without having seen what O’Brien has seen, it’s easy to grasp why such a result was all but inevitable.
To conduct the investigation, Vermont Yankee and its owner (the Louisiana-based energy conglomerate Entergy) hired the law firm of Morgan Lewis & Bockius LLP, to look into what happened. Having lawyers conduct this inquiry made sense because the questions are not especially scientific or technical – they really come down to “what did they know and when did they know it?” as to officials within Entergy and its labyrinth of subsidiaries, and whether those officials intentionally or negligently withheld the truth.
Morgan Lewis was an interesting choice for this job. With 1,300 lawyers and offices in 22 cities from Beijing to Boston, this is not your grandfather’s law firm. But it is one of Entergy’s law firms, representing the big energy conglomerate in various other matters. This seemed calculated to engender skepticism among Vermont Yankee’s opponents about the independence and objectivity of the firm’s investigation.
It also raises issues of attorney-client privilege, which brings us to the Public Service Board’s decision of April 20 that paved the way for delivery of the report two days later.
Before April 20, it wasn’t even clear that Entergy and Vermont Yankee would make the report public, however much they had touted it as an effort to restore public confidence in their veracity and reliability. The nuclear plant’s owners equivocated on this question, which the Board found troubling. Entergy and Vermont Yankee at least implied they would release the whole report, but only if the Public Service Board let them reserve the right to hide the underlying documents.
Entergy and Vermont Yankee at least implied they would release the whole report, but only if the Public Service Board let them reserve the right to hide the 65,000 underlying documents.
On April 20, the Public Service Board, with the assent of the Public Service Department, let Entergy and Vermont Yankee have their way. The Board ruled that the report itself would be released – but not necessarily documents or other materials that are referenced in the report. There are 65,000 such documents, according to Associated Press.
Superficially this looked like a reasonable compromise. Why should the public get to pore over tens of thousands of documents in the files of a private company? But beneath that compromise lurk some potentially troubling implications.
Vermont Yankee based its position on attorney-client privilege. This is odd, given that a party waives attorney-client privilege by disclosing documents to any third party – including the government, or parties to the Board’s Vermont Yankee investigation.
Nevertheless, the Board ruled that unless it agreed to this compromise, as recommended by the Public Service Department, it was “likely that the Investigation Report would be released with substantial redactions, reducing the flow of information and potentially leading to protracted litigation on whether redacted information may or may not be covered by claims of privilege.”
As O’Brien’s criticism of the report attests, the only real way to test the conclusions in the Morgan Lewis report with the skepticism they deserve is by examining at least some of the documents that underly the report. But the Public Service Board’s April 20 decision makes it very unlikely this will happen.
An alternative approach might have been to call Entergy’s bluff, on the plausible theory that Vermont Yankee would not dare withhold a report that is so key to its efforts to convince Vermonters of the nuclear plants enduring value. An alternative compromise would have been to give parties to the Board’s investigation, particularly the Conservation Law Foundation and the Vermont Public Interest Research Group (nuclear power skeptics both), access to at least some of the 65,000 documents without requiring their public release. Vermont’s open records law, and the Board’s procedures, allow for such a process.
Although this fight over disclosure may seem arcane, in fact it strikes at the very heart of Vermont’s public policy. For one thing, and to state the obvious, the controversy over the tritium leaks at Vermont Yankee, in the context of statewide discussion of whether to shut down the plant, is and will remain front-page above-the-fold stuff. Given the duty of loyalty that runs from any attorney to any client, it was inevitable that in a report destined for public release Morgan Lewis would declare Vermont Yankee innocent of wrongdoing. Had Morgan Lewis concluded otherwise, the report would never have seen the light of day.
As O’Brien’s criticism of the report attests, the only real way to test the conclusions in the Morgan Lewis report with the skepticism they deserve is by examining at least some of the documents that underly the report. But the Public Service Board’s April 20 decision makes it very unlikely this will happen.
Donald Kreis is the former general counsel of the New Hampshire Public Utilities Commission, associate director of the Vermont Law School’s Institute for Energy and the Environment. He teaches energy law and administrative law, including public records law, at VLS.
