Tuesday, August 25, 2015

Sierra Club Submits Testimony Opposing SB 438: Destructive Energy Legislation

The Sierra Club Michigan Chapter submitted the following testimony to the Senate Energy and Technology Committee in response to Senate Bill 438 on Tuesday, August 25.

August 25, 2015

To: Chairman Nofs and members of the Senate Energy and Technology Committee

RE: Senate Bill 438

On behalf of our 60,000 members and supporters in Michigan, the Sierra Club urges a NO vote on SB 438 (Proos), a bill that would eliminate Michigan’s renewable energy standard, sunset the state’s energy optimization standard, establish a definition for “clean energy resources” that includes polluting fossil fuels, and modify net metering in a way that would discourage distributed generation. Michigan legislators must reject SB 438 because it would undermine Michigan’s progress to date and put our future at risk.

Michigan’s renewable energy and efficiency standards have been unparalleled successes. They’ve created jobs, saved ratepayers money and enhanced economic development, while simultaneously protecting the health of Michigan’s citizens and the Great Lakes by reducing dirty, costly fossil fuels in our energy sector. Now is the time for our elected officials to increase Michigan’s renewable energy standard as both Michigan state agencies and nationally acclaimed energy experts show that our state can dramatically increase its renewable energy and efficiency capacity while boosting our economy and protecting our environment.

Energy Waste

Eliminating Michigan’s energy optimization (EO) standard in 2019 is the wrong choice for ratepayers. Energy savings, monetary savings, and greenhouse gas emission savings would all be decreased without an Energy Optimization standard. Integrated Resource Planning should be used in conjunction with a mandated efficiency goal, not instead of it. Investor-owned energy companies have little incentive to sell less energy and reap less profit, but as regulated monopolies they can and should be required to help their customers reduce energy waste.

Eliminating the EO standard contradicts both Governor Snyder’s plan to eliminate energy waste and the outstanding success of the current measure in saving ratepayers money. Michigan residents today save $3.55 for every dollar invested in our current efficiency program, while simultaneously preventing carbon and other pollution. Michigan’s energy efficiency industry is a driving force in our economy that employs more than 46,000 Michiganders, while also averting greenhouse gas emissions. The bill also establishes a cap on how much utility companies can spend on energy waste reduction programs at 2% of total utility retail sales. Waste Reduction is the cheapest way to save ratepayers money and decrease greenhouse gas emissions, so Sierra Club opposes any arbitrary limits or caps.
Definition of Clean Energy

The bill defines “Clean Energy” in a way that allows unsustainable forms of energy such as natural gas, waste incineration, nuclear, and other fossil fuels to be considered clean energy sources. This definition is too broad and weakens the true meaning of Clean Energy.  Energy sources that emit air and water pollution, including the greenhouse gases carbon dioxide and methane, and produce radioactive waste should not be considered “clean energy” in Michigan’s laws.

Climate Change

SB 438 is a dangerous proposal that takes Michigan in the wrong direction when it comes to protecting our state from climate disaster. Climate disruption caused by greenhouse gases from human sources is an urgent threat to our everyday lives and our future, and its impact is already being felt in Michigan. Climate disruption is about more than warmer temperatures – it’s about disrupting the basic weather patterns that affect almost everything in our lives - our water supplies, how we grow our food, the kinds of diseases we deal with, and the ability to keep our families safe.

We can already see the effects of climate disruption all across America: unprecedented droughts and wildfires in Western states, record-breaking heat in the Southwest and Midwest, Hurricane Katrina and Superstorm Sandy, extreme winter weather in traditionally warm states, and melting glaciers in Alaska. Extreme weather events are becoming more frequent, harming people, their economic well-being, their health, their homes, and their futures. Right here in Michigan, we’ve seen cherry and apple crops completely devastated due to abnormal and extreme weather patterns exacerbated by climate disruption. The time to fight climate disruption is now, but enacting SB 438 would contribute to more climate disasters.

Sierra Club members call on our elected leaders to combat climate disruption by moving Michigan beyond fossil fuels and towards true clean energy sources like wind, solar, and energy efficiency. According to a Yale study from last year, 61% of Michiganders believe climate change is happening, 76% believe we should regulate carbon pollution, and 60% support increasing our state’s renewable energy standard.  The message is clear: Michiganders oppose SB 438 and want more renewable energy and efficiency instead.

Green Pricing Program

The green pricing program established in this legislation is a step in the right direction. However, voluntary programs wane in the long run because utility companies operate under a regulated monopoly with a guaranteed rate of return/profit. Investor-owned energy companies have little incentive to invest in energy sources that protect the planet, because they are guaranteed a profit no matter which sources they utilize. If we can guarantee utility companies a profit, we should also require them to invest in energy sources that protect our air and water instead of unsustainable sources. We need mandates in addition to voluntary programs in order to truly protect Michigan’s environment and ratepayers.

Distributed Generation

The distributed generation portion of this legislation is a step in the wrong direction. Currently, small-scale solar projects in place or being installed on Michigan homes, businesses, and non-profits are able to connect to the grid through Michigan’s net metering program, which has been a huge success. SB 438 would drastically undercut homeowners who are investing in Michigan’s future through renewable energy systems.  Under SB 438, those families which invest their own funds in their own private renewable power systems and connect them to the grid to help with power distribution and peak demand, would be mandated to buy all their power at retail rates from the monopoly power company in their area, and meanwhile be forced to sell the electricity they generate at home back to utility companies for less than it is worth. This staggeringly anti-entrepreneurial concept runs contrary to common sense and the best interests of our state.  Net metered electricity from solar is normally produced when there is peak demand for electricity. This means solar power generation through net metering actually saves all ratepayers substantial money over time by reducing the need to invest in electric generation plants for peak load, which are the most expensive to build, maintain and run, and drive up the cost of electricity for all ratepayers.

According to the Metropolitan Policy Program at Brookings, between 2003 and 2010, the solar industry was one of the fastest growing segments of Michigan's economy, increasing at a rate of 15.8 percent each year with 121 companies in Michigan and employing 6,300 workers. This bill could kill that economic progress. This bill would discourage investment in solar production by delaying payback periods from 10 years (which most customers get today) to 18-20 years.  Ratepayers who are investing in distributed generation already are willing to take on the burdensome costs for net metering, including application fees, metering installation, interconnection, and testing costs, while also requiring pay delivery charges and non-fuel portion of power supply rates. We should not be adding more costs on these ratepayers while at the same time requiring them to sell their clean, home generated energy for less than its true value. In addition, facilities that produce energy on-site via distributed generation are better protected from large power outages than traditional customers who depend on the grid.

Michigan should encourage distributed generation instead of limiting it. Although the new plan increases allowed distributed generation to 10% from the previous 1% cap, we believe there should be no cap, giving the opportunity for all Michiganders to participate and decide how they want to use their energy. Senate Bill 438 would discourage distributed generation to the detriment of ratepayers, homeowners and businesses.


Some supporters of SB 438 have claimed that renewable energy and efficiency programs are being unfairly subsidized and that this bill restores market forces. What they don’t disclose, however, is that the fossil fuel industry received $502 billion in overall subsidies from U.S. taxpayers in 2012, according to a report from the International Monetary Fund. In comparison, the renewable energy industry (excluding biomass) received $24 billion in federal support in 2012, less than five percent the subsidization of fossil fuels.

In addition, the International Monetary Fund recently reported that fossil fuel pollution costs the world $5 trillion annually in public health and environmental problems. Pollution costs are externalized from the market and are another form of fossil fuel subsidization, balanced out by costs to people’s health and degradation to our natural resources. For an example right here in Michigan, a 2011 report from Environmental Health and Engineering, Inc. showed that particulate matter pollution (PM2.5) from Michigan’s nine oldest coal plants are costing $5.4 billion a year in public health costs.

When determining Michigan’s next energy policy, the legislature must also consider the context of excessive subsidies currently given to fossil fuel based suppliers. We encourage you to pass policies that even the playing field for sustainable forms of energy such renewable energy standards, energy optimization standards, fair pricing for distributed generation, and enabling community energy projects.
Out of State Spending
Michigan currently spends $22 billion a year importing fossil fuel into the state, for both transportation and power. We get 100% of our fuel for coal and nuclear energy and 80 percent of our natural gas from other states. Solar and wind are fuel free; once installed, the cost of energy is zero. That is all money that then gets spent in Michigan instead of sent out of state to import fuel. Our public policies should support renewable energy development and energy optimization instead of continuing our reliance on polluting and volatile fossil fuels like natural gas and coal.

Sierra Club’s Policy Recommendations

The Sierra Club specifically calls on the Michigan legislature to:
  • Increase Michigan's renewable energy standard to 30% by 2030, as the Public Service Commission and Energy Office have all said is readily achievable.
  • Increase Michigan's energy optimization standard from 1% to 2% annually.
  • Remove the existing spending cap on Michigan's energy efficiency program.
  • Ensure that "clean" or "renewable" energy is not redefined to include anything that emits greenhouse gasses or creates radioactive waste such as fossil fuels, nuclear energy, or energy from incinerating wastes.
  • Ensure that electric ratepayers are able to produce their own energy to either use themselves or sell back to a utility company at full retail price, not a wholesale or lowered price.
  • Remove the existing cap on net metering and all other regulatory barriers to distributed generation.
  • Enable all individuals, organizations, places of worship and utilities to establish community renewable energy gardens, similar to the ones currently operated by Cherryland Electric Co-Op and proposed for the Lansing Board of Water and Light, and require investor-owned utilities to purchase generated energy from these entities.

For these reasons, we urge you to vote NO on SB 438. Votes pertaining to this bill will be included in the Sierra Club’s legislative scorecard.


Mike Berkowitz
Legislative and Political Director
Sierra Club Michigan Chapter

Monday, August 10, 2015

Sierra Club's amicus brief on Palisades Nuclear Plant

This is a text copy of the Sierra Club's amicus brief in support of atomic safety and licensing board decision on Palisades Nuclear Plant. Email markmuhich0@gmail.com to get a full copy of this amicus brief.


In the Matter of: Docket No. 50-255-LA-2 ENTERGY NUCLEAR OPERATIONS, INC., August 7, 2015 (Palisades Nuclear Plant) ___________________________________________________________


WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 118 3rd Ave. S.E., Suite 326 Cedar Rapids, Iowa 52401 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com


TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . ii
I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . 1
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . 11

I. CASES Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349 . . . . . . . . . . . . . . 3
In re FirstEnergy Nuclear Operating Co., 75 N.R.C. 393, 396-397 (2012) . . . . . . . . . . 6
Northeast Nuclear Energy Company, 53 NRC 22, 27 (2001). . . . . . . . . . . . . . . 4
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554 (1978). . . . . . . . . . . . . 5
York Comm. for a Safe Env’t. v. NRC, 527 F.2d 812, 815 n. 12 (D.C. Cir. 1975). . . . . 4

II. STATUTES AND RULES 10 C.F.R. § 2.309(f) . . . . . . . . . . . . . . . . . 2
10 C.F.R. § 50.61a . . . . . . . . . . . . . . . . . . 9
Atomic Energy Act, 42 U.S.C. § 2239(a) . . . . . . . . 2

III. OTHER AUTHORITIES Diego Ferreno, Inaki Gorrochategui, Frederico Gutierrez-Solana, Degradation Due to Neutron Embrittlement of Nuclear Vessel Steels: A Critical Review about the Current Experimental and Analytical Techniques to Characterise the Material, with Particular Emphasis on Alternative Methodologies (2011). . . . . . . . . 7

I. INTRODUCTION This matter is an appeal by Entergy Nuclear Operations, Inc., from the decision of the Atomic Safety and Licensing Board (ASLB) granting the Intervenors, Beyond Nuclear, et al., a hearing on Entergy’s license amendment request (LAR). The Sierra Club supports the ASLB decision and files this Amicus Curiae Brief to explain why it supports the ASLB decision and why it is important for the Commission to allow the intervention of Beyond Nuclear, et al. to be heard.

The Sierra Club is the nation’s largest grassroots environmental organization, with over 600,000 members. Its Michigan Chapter has approximately 16,000 members. The Sierra Club supports sustainable energy alternatives that do not harm the environment. The Sierra Club opposes nuclear power because its fuel cycle from uranium mining to spent radioactive fuel poses grave dangers to the environment. In addition, reliance on nuclear power unjustifiably delays the beneficial transition to clean and renewable energy sources.

With specific reference to the Palisades Nuclear Plant and the embrittlement of the reactor vessel at the plant, members of the Michigan Chapter are at risk if the embrittled reactor vessel shatters and disperses radioactive material into the environment. This can affect the air, water and soil upon which Michigan residents depend. Therefore, the attempt by Entergy to shortcut assurances that the reactor vessel is safe is unacceptable.

II. THE INTERVENORS ARE ENTITLED TO A HEARING It is important to remember that the decision of the ASLB from which this appeal is taken was simply a decision that the Intervenors are entitled to a hearing. No decision was made on the merits of the Intervenors’ contention. Therefore, the decision was a victory for public participation. The Commission justifiably prides itself on promoting transparency and public participation.

Specifically, with respect to licensing decisions, the Atomic Energy Act, 42 U.S.C. § 2239(a), requires that the Commission must grant a hearing upon “the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.”

Furthermore, the Commission’s regulations promote the concept of public participation when a hearing is requested. Pursuant to 10 C.F.R. § 2.309(f), a petitioner’s contentions must: (1) provide a specific statement of the issue of law or fact to be raised or controverted; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised in the contention is within the scope of the proceeding; (4) demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provide a concise statement of the alleged facts or expert opinions which support the petitioner’s position on the issue and on which the petitioner intends to rely at hearing, together with references to specific sources and documents on which the petitioner intends to rely; (6) provide sufficient information to show that a genuine dispute exists with the licensee on a material issue of law or fact.

The Commission has also made clear that the burden on a petitioner in stating its contentions is not as heavy as Entergy asserts in its appeal brief. In Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, the Commission described the contention admissibility standards as “insist[ing] upon some ‘reasonably specific factual and legal basis’ for the contention.” Id., 54 NRC 349, 359. The Commission further explained in Millstone that the standards for contention admissibility were meant to prevent contentions based on “little more than speculation” and intervenors who had “negligible knowledge of nuclear power issues and, in fact, no direct case to present.” Id. at 358. Rather, petitioners are required only to “articulate at the outset the specific issues they wish to litigate.” Id. at 359.

The Commission and the courts have also made clear that the burden of persuasion is on the licensee, not the petitioner. The petitioner only needs to “com[e] forward with factual issues, not merely conclusory statements and vague allegations.” Northeast Nuclear Energy Company, 53 NRC 22, 27 (2001). The Commission described the threshold burden in stating a contention as requiring a petitioner to “raise any specific, germane, substantial, and material factual issues that are relevant to the . . . request for a license amendment and that create a basis for calling on the [licensee] to satisfy the ultimate burden of proof.” Id.

Courts have found, however, that this burden may not be appropriate where, as here, the information was in the hands of the licensee or NRC Staff and was not made available to the petitioner. See, e.g., York Comm. for a Safe Env’t. v. NRC, 527 F.2d 812, 815 n. 12 (D.C. Cir. 1975)(where the information necessary to make the relevant assessment is “readily accessible and comprehensible to the license applicant and the Commission staff but not to 5 petitioners, placing the burden of going forward on petitioners appears inappropriate.”). Also, in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554 (1978), the United States Supreme Court affirmed the NRC in finding that the proper standard to apply required intervenors to simply make a “showing sufficient to require reasonable minds to inquire further,” a burden the NRC found to be significantly less than that of making a prima facie case.

The authorities cited in Entergy’s appeal brief do not support its argument (Entergy Brief p. 11). It is clear that the Intervenors’ contention is based on much more than mere speculation. The contention cites specific facts, relies on the expert opinion of Arnold Gundersen, a qualified nuclear engineer, and also relies on technical documents and guidance from the Commission. The contention is discussed in significant detail, showing clearly that the Intervenors and their expert witness know what they are talking about and that the contention is more than mere speculation.

The ASLB majority issued a thoroughly explained decision, based on the correct standard for evaluating contention admissibility. With respect to contention admissibility, the Commission defers to the ASLB unless the Commission finds either an error of law or an abuse of discretion. In re FirstEnergy Nuclear Operating Co., 75 N.R.C. 393, 396-397 (2012). In this case, the ASLB committed neither an error of law nor an abuse of discretion. Entergy simply disagrees with the reasoning of the ASLB majority.

The Sierra Club emphasizes again that this appeal is not about the merits of the contention. It is only about whether the Intervenors are entitled to a hearing. Entergy’s brief goes into great detail about the technical issues involved in the Intervenors’ contention. The Commission should not be distracted by this journey into the weeds. At this point, the Intervenors have not had an opportunity to present their proof in support of their technical arguments. It is the duty of the ASLB, not the Commission, at this stage of the proceedings to determine the merits of the contention. The Intervenors have presented more than enough information in support of their contention to show that the contention is based on facts and not mere speculation. That is all that is required to support a contention.

The majority decision of the ASLB was correct and the Commission should affirm that decision.

Embrittlement of pressure vessels is not a problem confined to the Palisades plant. So the decision in this case will have far-reaching consequences for nuclear safety. That is why it is important to get this case right. Getting it right means conducting a hearing where evidence can be presented and the ASLB can exercise its expertise in making an informed decision.

The pressure vessel constitutes the most important structural component in a nuclear reactor in terms of safety. Diego Ferreno, Inaki Gorrochategui, Frederico Gutierrez-Solana, Degradation Due to Neutron Embrittlement of Nuclear Vessel Steels: A Critical Review about the Current Experimental and Analytical Techniques to Characterise the Material, with Particular Emphasis on Alternative Methodologies (2011). The pressure vessel is a virtually irreplaceable element which is subjected to operating conditions that lead to a progressive degradation over time of its steel casing. Id.

The original design lifetime for nuclear light water reactors is 40 years. So the reactors constructed in the early 1970’s have exceeded their designed life, but the licenses for those reactors have been extended for an additional 20 years. In other words, those reactors are living on borrowed time. That is why it is so important that Entergy not be allowed to set a bad precedent in this case.

Such a precedent would allow a lack of proper testing at the worst age-degraded reactors in the nation, as identified by the Commission in 2013, including Point Beach Unit 2, Indian Point Unit 3, Diablo Canyon Unit 1, Beaver Valley Unit 1, and Davis-Besse. And over the next 20 years or more, with license extensions, that list will certainly grow. This is an unacceptable and unnecessary risk waiting to happen.

Entergy has not explained why it cannot test the coupons, but rather attempts to justify its assertion that the Palisades reactor pressure vessel is safe by extrapolating data from other reactors. Entergy’s argument for failing to test coupons is apparently that it didn’t test coupons because it claims it doesn’t have to. There is no technical or practical reason why the coupons could not be tested. If Entergy is allowed to use extrapolated estimates to justify its risky actions in this case, then other aging reactors will also be allowed to do the same, resulting in a collapsing “house of cards,” where succeeding estimates will be based on prior questionable estimates. The people of Michigan, and the residents near other reactors that are subject to embrittlement, deserve more protection than that.

It is also important to emphasize that Entergy is not relying on the alternative procedure for assuring pressure vessel reliability set out in 10 C.F.R. § 50.61a. That regulation establishes a very detailed procedure that the Commission through its rulemaking process has determined will adequately assure pressure vessel reliability. As the ASLB majority found in this case, instead, Entergy is attempting to rely on an NRC staff guidance document that is still in draft form and an industry standard that has not even been approved by the Commission. The ASLB majority also noted that the staff guidance document says that it may be used if there is no material, i.e., coupons, available for testing. In this case, however, there are more than enough coupons available for testing. Furthermore, as noted above, the staff guidance is in draft form and has not been approved or adopted by the Commission. It should certainly not supercede Commission regulations.

Therefore, Entergy’s attempt to avoid following any NRC regulation provides no assurance that the pressure vessel is safe and reliable. This would indeed be a bad precedent for the Commission to establish.

IV. CONCLUSION A majority of the ASLB in this case, after applying its expertise and applying the standard for the Intervenors’ right to a hearing, decided that the Intervenors are indeed entitled to a hearing on their contention. The Intervenors have more than satisfied the requirements for a valid contention that justifies a hearing. Pressure vessel embrittlement is an issue that has far-reaching consequences. This case will set a precedent that will impact the safety of nuclear power for years to come. The Commission should deny Entergy’s appeal and uphold the ASLB decision granting the Intervenors a hearing.

/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 118 3rd Ave. S.E., Suite 326 Cedar Rapids, Iowa 52401 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR SIERRA CLUB

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305, I certify that, on August 7, 2015, copies of Sierra Club’s Amicus Curiae Brief were served upon the Electronic Information Exchange (the NRC’s E-Filing System) in the above-captioned proceeding. /s/ Wallace L. Taylor WALLACE L. TAYLOR

Wednesday, July 15, 2015

WKZO Interview with Chapter Chair David Holtz on Enbridge Pipeline Task Force Report - July 15, 2015

Sierra Club Michigan Chapter Chair David Holtz was interviewed on WKZO Kalamazoo radio 590 AM. He took the opportunity to speak about the recent report from the Governor's task force on Enbridge's Line 5 pipeline that runs through the Mackinac Straits.