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.

Subsidies

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.

Sincerely,

Mike Berkowitz

Legislative and Political Director

Sierra Club Michigan Chapter

Michigan Chapter Update - August 15, 2015

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	Michigan Chapter Update AUGUST 16 2015  In this issue: GOV BLANCHARD URGED TO PROTECT GREAT LAKES FROM ENBRIDGE LINE 5 UPCOMING EVENTS: -LAST CHANCE: SIGN UP FOR THE ANNUAL RETREAT: AUGUST 21-23-PEOPLE'S CLIMATE MARCH IN GRAND RAPIDS: SEPTEMBER 19 -DETROIT MARCH FOR JUSTICE: OCTOBER 3 SIERRA CLUB FILES AMICUS BRIEF ON PALISADE'S NUCLEAR PLANT SENATE BILL WOULD UNDERMINE NET METERING FOR SOLAR  GO SOLAR WITH SIERRA CLUB! MI SOLAR PARTNERSHIP JOIN THE BAN FRACKING IN MICHIGAN PETITION DRIVE! SPEAK UP ABOUT MICHIGAN'S WATER STRATEGY THANK YOU TO TIM MINOTAS! EXPLORE AND ENJOY: IARGO SPRINGS LAST CHANCE TO SIGN UP TODAY AND MONDAY: Chapter Annual Retreat  August 21-23 Camp Miniwanca Shelby, MI  Join us for a Peoples' Climate March in West Michigan! Learn more and RSVP here. September 19, 1-2:30 p.m. 6th Street Bridge Park, Grand Rapids  SAVE THE DATE! Detroit March for Justice October 3, 12 p.m. Roosevelt Park, Detroit SIERRA CLUB URGES FORMER GOVERNOR TO USE ROLE ON ENBRIDGE BOARD TO SHUT DOWN LINE 5 The Sierra Club called on former Michigan Governor James Blanchard, who currently serves as a board member for Enbridge, Inc., to address immediate safety concerns associated with the Canadian company's Line 5 crude oil pipeline that runs through the Straits of Mackinac. Advocates gathered at the Capitol to urge government officials to shut down the 62-year-old Line 5 pipeline. Photo by Cecilia Garcia. As chair of the Enbridge board's Committee of Social Responsibility, Blanchard's position calls for his oversight on environmental stewardship and the protection of local communities. The Sierra Club letter calls on the former governor to compel the company to publicly disclose safety inspection results and cooperate in an independent investigation sought by the state, in line with Blanchard's authority and duties at the company. The request calls directly on Blanchard to aid in the immediate shut down of Line 5, as the company failed to maintain legal pipeline infrastructure and provided inconsistent liability information in the event of an oil spill. The company's history with this 61-year-old pipeline proves to violate the very goals of Blanchard's position on the board of directors, one created in response to the company's catastrophic Line 6b breech that devastated the Kalamazoo River and local communities. Michigan Sierra Club Chair David Holtz weighed in on the importance of preventing a similar catastrophe by holding the company, specifically Blanchard, accountable. "Governor Blanchard is not only in a unique position to protect the Great Lakes from an Enbridge catastrophe, but as an Enbridge board member he is responsible to Enbridge shareholders for making sure the company stops behaving badly," Holtz said. To read our full press release, which includes each request to Blanchard, click here. SIERRA CLUB FILES AMICUS BRIEF ON REVIEW OF PALISADES NUCLEAR REACTOR  Palisade's Nuclear Plant sits on the shores of Lake Michigan. Photo by Sierra Club Nuclear Free. On August 7 the Sierra Club submitted an Amicus brief to the federal Nuclear Regulatory Commission (NRC), joining the call for the agency to conduct a full evidentiary hearing on the unprecedented request by the owners of the Palisades Nuclear Power Plant, Entergy, that they be exempted from federal safety regulations. Sierra Club is supporting the efforts of Beyond Nuclear, Don't Waste Michigan, Michigan Safe Energy Future-Shoreline Chapter, and Nuclear Energy Information Service who petitioned the Atomic Safety and Licensing Board panel (ASLBP) to require a hearing on Palisades and its embrittled reactor. In a Memorandum and Order released on June 18th, the ASLB panel determined that the request from Entergy warranted a full evidentiary hearing. The Louisiana based owner of Palisades appealed the ASLB order to the NRC. The Palisades plant, located on the Lake Michigan shoreline in Covert, MI, is one of the oldest nuclear power plants still operating in the world, and has the most embrittled reactor pressure vessel (RPV) in the United States. The RPV, which includes both the shroud that shields the rest of the plant and the environment from radioactive materials, and the reactor core where controlled nuclear reactions are used to generate electricity, faces significant deterioration and embrittlement from more than forty years of operation and exposure to radioactive materials. The Palisades' embrittled RPV poses the threat of a catastrophic rupture or breakdown. According to Mark Muhich, chairman of Sierra Club Nuclear Free Michigan, an RPV rupture "could kill thousands of western Michigan residents, ruin thousands of square miles of the best agricultural land in the state, and poison Lake Michigan, the source of drinking water for millions of people." Sierra Club is represented by attorney Wallace Taylor of Iowa, who has worked with Sierra Club chapters around the nation on issues related to nuclear power safety.  Join the clean energy age & power your home with the sun!   Our solar partners, McNaughton-McKay Electric Company, Solar Winds Power Supply and Michigan Solar Solutions, offer their services by evaluating your home's solar capacity, educating the public on the benefits of solar power and providing expert installation of the customer's choice of solar array. Sales through our partnership provides for donations to the Michigan Chapter to support our work as well! Fill out our solar survey.  NEW ENERGY LEGISLATION COULD DESTROY SOLAR ENERGY IN MICHIGAN Senate Energy Committee Vice Chairman John Proos recently introduced a bill to rewrite Michigan's energy policy which could prevent people from using their own solar energy produced for their homes and businesses. Currently, small-scale solar projects are able to connect to the grid through Michigan's net metering program, allowing homes, businesses, and non-profits to use their own energy. Senate Bill 438 would essentially eliminate net metering, barring program participants under the new plan from using their own generated energy and instead force them to sell the energy back to utility companies for less than it is worth. We believe customers should have free will to use their own produced energy. The bill also repeals Michigan's renewable energy standard, eliminates our energy efficiency programs, and redefines clean energy to include polluting sources of energy such as natural gas, nuclear energy, and hazardous waste incineration. We need your help to stop this bill and get the legislature to pass policies that support sustainable energy sources like wind and solar. Click here to take action and tell your lawmakers to oppose this devastating legislation. STAND UP FOR STRONGER GREAT LAKES PROTECTION IN MICHIGAN The Michigan Department of Environmental Quality (DEQ) Office of the Great Lakes released a 156-page draft of a Water Strategy in Junethat it calls "a roadmap to achieve a 30-year vision to ensure Michigan’s water resources support healthy ecosystems, citizens, communities and economies." Sunset on Lake Michigan. Photo by Gail Philbin.   The document broadly addresses an array of water-related issues, from algal blooms and invasive species to infrastructure issues and the need for monitoring surface and groundwater. While the goal of a long-term approach to protecting our most precious resource is laudable, Sierra Club has serious concerns about the effectiveness of the state's Water Strategy given the voluntary nature of the measures it promotes.    "I am disappointed that the Water Strategy speaks to what government 'can' and 'should' do versus what it WILL do to protect waters within the Great Lakes Basin," says Erma Leaphart, Conservation Organizer for the Sierra Club Great Lakes Program. "I respect and agree that people of Michigan have a role to play but the State of Michigan must take a leadership role starting with creating a stronger vision statement, establishing or adopting specific identified impactful goals and data driven solutions." If you want the Great Lakes State to take the lead on meaningful Great Lakes stewardship, make your voice heard: • Read the Water Strategy here.  • Send your written comments by Aug. 28 to the Office of the Great Lakes, DEQ, P.O. Box 30473-7973, Lansing, Michigan 48909, by fax at 517-335-4053 or by emailing Mi-waterstrategy@michigan.gov.    • Or click here to send a message by Aug. 28.  A camper completes the high ropes course. Photo by Sierra Club. LAST DAY TO REGISTER FOR ANNUAL RETREAT This year's Annual Retreat is less than a week away but you can still register online today and tomorrow! The weekend includes a packed schedule of recreational and educational activities, which can be tailored to you and your family's interests. The affordable weekend getaway offers hiking, tubing and boating (to name a few). The sandy beaches and dunes along the coastline of Lake Michigan offer a unique escape and breathtaking panoramic views that everyone can appreciate. Keynote speakers and presenters will offer insight on important ways to protect Michigan's environment in creative ways that are sure to engage all campers. Don't miss out on the unique opportunity to spend a weekend with those who love the environment, while also enjoying the natural beauty our state offers. TO REGISTER FOR THE ANNUAL RETREAT TODAY OR TOMORROW ONLY, CLICK HERE.  Photo from New York Sierra Club. LET'S BAN FRACKING IN MICHIGAN Do you believe we can do better than polluting our water and air by allowing fracking for natural gas and oil? Hundreds of Michiganders are currently collecting petition signatures to put the Committee to Ban Fracking in Michigan's ballot proposal onto the November 2016 ballot. YOU can help ensure that Michigan voters have a say on whether: Michigan continues to allow radioactive wastes from fracking in other states to be disposed of in Michigan landfills; Michigan continues to allow the use of fracking by oil and gas developers, with the air and water quality contamination it can cause; and Michigan overturns its policy favoring the maximum production of oil and gasover protection of the environment and public health.  Join us in circulating the ballot petition for the Committee to Ban Fracking in Michigan! You can make a big difference by collecting signatures in your own community or beyond. Time is short and there is a lot of work to do, so please join with Sierra Club in supporting this petition drive! Sign up here and you'll hear from our Campaign Coordinators, Craig Brainard or John Ford, within a few days with details about how Sierra Club is supporting this effort. You can also go to the Committee to Ban Fracking in Michigan's website to register and get training on how to collect petitions. Be sure to let them know that Sierra Club referred you at the bottom of the volunteer sign up sheet! Contact Craig Brainard or John Ford for more information about Sierra Club's work to end fracking, and to get involved in the ballot petition drive. Paid for with regulated funds by the Sierra Club Committee to Make Michigan Safe from Fracking, 109 E. Grand River Avenue, Lansing, MI 48906. (L to R): Anne Woiwode, State Representative John Kivela, Robert Gordon and Tim Minotas on Michigan Sierra Club Lobby Day. A FOND FAREWELL TO OUR TWO-YEAR INTERN This fall, our Legislative Intern Tim Minotas is heading back to Central Michigan University to finish his degree in Political Science and Environmental Studies and lead the Student Environmental Alliance on campus. Tim spent a year as a chapter Political Intern working on campaigns for Sierra Club's endorsed candidates in Oakland County and Mt. Pleasant. As our Legislative Intern, he helped organize our Spring Citizen Lobby Day, a political fundraiser, and was our eyes and ears at the capitol. Thanks to Tim for all his hard work over the past two years. Interested in being a legislative and political activist like Tim? Learn more information here. EXPLORE AND ENJOY! IARGO SPRINGS Sierra Club is committed to "exploring, enjoying and protecting the planet." The Michigan Chapter Update includes features on exploring and enjoying places in Michigan. In this edition, Becky Hammond writes about the Iargo Springs, located on the Au Sable River in the Huron Manistee National Forest, which host a wide range of wildlife and offer breathtaking views.  A family of ducks. Photo by Becky Hammond. If you've driven along the River Road National Scenic Byway that parallels the Au Sable River as it heads to Lake Huron and (as I did for years) skippedIargo Springs in favor of the Lumberman's Monument (or any other scenic overlook; they abound there), you need to put the springs on your to-do list. Like so many Michigan attractions, they are wonderful and there are many other things to do nearby. Iargo Springs changed the word "spring" for me forever. These are not seeps or even streams trickling out of hillsides, these are almost waterfalls that pour out, some held in manmade pools, all eventually winding and criss-crossing the forest floor until finding their way to the dammed-up part of the Au Sable known as Cooke Pond. To call the water "crystal clear" is to redefine that term.And the springs and streams go on and on, visible from a network of boardwalks that branch out after you descend a long flight of stairs (300 or so). Cooke Pond is the kind of marshy backwater at that point that waterfowllove. Take your camera. It would make a great early-morning paddle. Late May provided a viewing gallery of mergansers, geese, swans, all with young. Iargo springs was, and is, a holy place to Native Americans, with the water considered to have medicinal value. Just being there feels holy, walking around seems to have medicinal value. The spot is the trailhead for the seven-mile Highbanks Trail. It's close enough to Oscoda for a meal and drink afterwards, close enough to Lake Huron for a swim. Join Sierra Club members on Outings, including hikes, camping, and paddling adventures across the state of Michigan and beyond. Find out more about Michigan Chapter and Group Outings here by scrolling down to the calendar.  ----------------------------------------------------------------------------------------------------------- Here are Some Great Ways to Support Sierra Club Michigan Chapter and Get Engaged! Support the Michigan Chapter!  Click here to make a Secure Online Donation SierraClubMichigan on Facebook Sign up for a Sierra Club Credit Card today Follow us on Twitter @MichiganSierra We welcome feedback on the Michigan Chapter Update - Contact us at michigan.chapter@sierraclub.org.   Unsubscribe from Michigan Chapter Updates Update My Profile | Manage My Email Preferences | Update My Interests | Explore Our Online Communities  Michigan Chapter - Sierra Club 109 E. Grand River Avenue Lansing, MI 48906 Contact Us Header photo Near Andrus Lake, Upper Michigan, by Beverly Wolf.

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.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

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

AMICUS CURIAE BRIEF BY SIERRA CLUB IN SUPPORT OF ATOMIC SAFETY AND LICENSING BOARD DECISION ___________________________________________________________

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

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . ii
I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . 1
II. THE INTERVENORS ARE ENTITLED TO A HEARING. . . . . 2
III. EMBRITTLEMENT IS AN ISSUE THAT AFFECTS ALL OLDER NUCLEAR REACTORS SO THIS CASE HAS BROAD APPLICATION . . . . . . . . . . . . . . . . . . . 7
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . 11

TABLE OF AUTHORITIES
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.

III. EMBRITTLEMENT IS AN ISSUE THAT AFFECTS ALL OLDER NUCLEAR REACTORS SO THIS CASE HAS BROAD APPLICATION
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

Michigan Chapter Update - August 2, 2015

View a web version of this email | Sign up for our email | Tell a friend about us Michigan Chapter Update August 2, 2015 In this Issue: Sierra Club Endorses Ban Fracking Petition Drive A Big Thank You! Join the Parade for Clean Power and the Green Cruise August 8 Go Solar with Sierra Club's Solar Partnerships Take Part in Rock Climbing and High Ropes at Annual Retreat August 21-23 A Month in Review: Rallies and Marches with Sierra Club Craig Brainard's Don't Frack Up Our Future Program August 11th Charitable Gift Annuity Helps Sierra Club (and You!) Explore and Enjoy: Pigeon River Country State Forest SIERRA CLUB ENDORSES BAN MICHIGAN FRACKING PETITION DRIVE Sierra Club is supporting the Ban Michigan Frackingballot petition drive, following unanimous support from Michigan Chapter leaders.                                      Photo by Mary Novrocki  Sierra Club has endorsed a proposed ballot measure that would ban radioactive and other fracking wastes from Michigan and end risky, high-volume hydraulic fracturing in the Great Lakes State. The club's endorsement of The Committee to Ban Fracking in Michigan’s proposal means the organization will mobilize its hundreds of volunteers and more than 60,000 members and supporters to put the proposed measure on the 2016 ballot. The Sierra Club Committee to Make Michigan Safe from Fracking is being formed and our co-chairs John Ford and Craig Brainard invite you to join the petition drive today. "If the ban fracking proposal is placed on the ballot, voters in Michigan who overwhelmingly say they want to protect our state’s waters, land and communities will have the opportunity to overcome the oil industry’s grip on Lansing and protect our state," said David Holtz, chair of Sierra Club Michigan Executive Committee. "Michigan shouldn’t be the dumping grounds for other states’ radioactive and chemical fracking wastes and we shouldn’t be putting our public health and our waters at risk." Holtz noted that the endorsement vote by Sierra Club leaders throughout the state was unanimous. Co-chairs John Ford of Ann Arbor and Craig Brainard of Hastings, both long-time Sierra Club leaders, will coordinate the Committee's activities in support of the proposed fracking ban petition drive, which needs 252,523 signatures from Michigan voters to qualify for the November, 2016, ballot. "We understand it’s a huge challenge to get this on the ballot," said Brainard. "Sierra Club felt strongly that we needed to step up and help make this ballot initiative a success." A BIG THANK YOU!  Many thanks to Todd and Amanda Carlson, shown with their daughter Abby at the 2013 Annual Retreat, for donating funds for a high quality digital camera to the Michigan Chapter! Amanda also chairs the 2015 Retreat Committee (sign up below!) Sierra Club's announcement of its endorsement of a ban on high volume fracking and injection of fracking wastes follows more than three years of study of the issue along with the release of theUniversity of Michigan's Graham Institute report on fracking in Michigan. The report points to uncertainties and potential risks involving fracking operations in Michigan. Following studies of health and environmental risks, New York banned fracking in that state. Nearly a year ago it was publicly disclosed that Michigan was importing radioactive fracking wastes from Pennsylvania after landfills in that state and in West Virginia refused to take it. A state panel in Michigan meeting behind closed doors subsequently gave the go-ahead to continue and potentially expand importing radioactive wastes. "Michigan is opening its doors to a flood of radioactive fracking wastes other states don’t want," said Ford. "When we take that message to Michigan voters they will act to slam the doors shut. Our campaign is about giving Michigan voters a choice and we are confident they don’t want Michigan to be the new ground zero for radioactive wastes."  Sign up for the petition drive here.     JOIN THE PARADE FOR CLEAN POWER AND THE GREEN CRUISE AUGUST 8 Look for the Solar Partnerships booth at this year's Green Cruise! Information about our Solar Partnership program will be provided to residents interested in powering their home with a reliable and clean energy source- the sun! Sales through our partnership provides for donations to the Michigan Chapter to support our work as well!  Our solar partners, McNaughton-McKay Electric Company, Solar Winds Power Supply and Michigan Solar Solutions, offer their services by evaluating your home's solar capacity, educating the public on the benefits of solar power and providing expert installation of the customer's choice of solar array.  Ready to move forward with solar power and see if your home has solar capacity? Fill out our solar survey!  In August, the long anticipated rules regarding carbon dioxide pollution from power plants, one of the greenhouse gases responsible for climate change, will finally be finished. This historic rule represents the first such limits ever created in the United States to help protect us from climate change and represents a victory for ordinary citizens that are concerned about our planet's future. People across the country are preparing to celebrate this moment and Michigan is no exception. On August 8 at the annual Green Cruise in Ferndale we’re planning to thank President Obama’s administration for taking a stand against big polluters. The Green Cruise is hosted each year by the Southeast Michigan Groupand celebrates all forms of human-powered transit. We will have a contingent of 50-100 people marching to support the Clean Power Plan. Do you like parades? Do you support clean energy? Please join us to begin staging at 11:30 a.m. and participate in the parade to help us support the Clean Power Plan. We will meet at the Green Cruise festival on 9 Mile Rd. just east of Woodward Avenue in Ferndale. Please RSVPand you will receive a free Clean Power Plan t-shirt, button, and poster. Supplies are limited to the first fifty people. Please contact Andrew Sarpolis, Beyond Coal organizer, with any questions. COME TO THE RETREAT FOR HIGH ROPES AND TUBING! AUGUST 21-23 AT CAMP MINIWANCA ON LAKE MICHIGAN Photo by Camp Miniwanca Youth Foundation. Camp Miniwanca, the gorgeous location of this year's Annual Retreat, features exciting outdoor activities that appeal to all age groups. Campers can participate in a high ropes course with various skill levels to choose from. For those seeking adventure in more than one way, outing leaders will offer rock climbing, tubing and boating on Lake Michigan. In addition, the three-day weekend will feature plenty of hikes throughout the day and evening for those who want to explore the Great Lakes region's natural beauty in a more tranquil way. Check out this year's retreat schedule to find activities through the weekend that appeal to you, and Sign Up NOW! Not able to attend the retreat? Considering donating to our scholarship fund that allows families who cannot afford the weekend to attend! The affordable and exciting Michigan Chapter Annual Retreat is only two weeks away!  Sierra Club members and non-members alike can sign up at this link or call Cecilia Garcia at (517) 484-2372 x 10. A MONTH IN REVIEW: MICHIGAN CHAPTER HAPPENINGS   "Remember the Kalamazoo"     On July 25, five years after Enbridge Line 6B broke open and spilled 1 million gallons of tar sands crude oil into Talmadge Creek and the Kalamazoo River, hundreds of people from across the Great Lakes region gathered in Battle Creek to "Remember the Kalamazoo." Local residents shared stories about the irretrievable impact of the oil spill on their lives and communities. River Walkers walked 12 miles from the start of the spill to the memorial, and the crowd silently joined them to walk to the Kalamazoo River.  Learn more about the largest inland oil spill in our nation's history and the event here. Let's Move Lansing Beyond Coal Rally  On July 28th, Sierra Club members and volunteers gathered outside of Lansing's energy utility, the Board of Water and Light, to express concerns about the Board's future energy choices. The Club is urging BWL to increase public inputin the upcoming planning process, set retirement dates for BWL's two coal plants and plan ahead for future energy production.  Conservation Director Anne Woiwode and Beyond Coal Organizer Brad van Guilder offered public comments at the meeting that urged the municipal utility to consider the Sierra Club's recommendations for the benefit of ratepayers and the environment. Contact Brad to learn more.     Shut Down Enbridge Line 5 Rally at the State Capitol Over 100 Michigan residents rallied at the Capitol July 30 to highlight the danger of the 62-year-old Line 5 crude oil pipelines that cross the Straits of Mackinac. Protestors marched to the offices of Attorney General Bill Schuette and Governor Rick Snyder to deliver a letter signed by over 170 organizations and 300 Michigan businesses asking them to immediately shut down the pipeline. To learn more about Line 5 and join the shutdown effort, click here. Craig Brainard will present alternatives to fossil fuels including solar power in his "Don't Frack Up our Future" presentation August 11 in St. Joseph. Sierra Club photo. LEARN ABOUT FRACKING IN MICHIGAN AUGUST 11 Oil and gas drilling has been happening in Michigan for a very long time, but in recent years, interest in and exploration for these resources has ramped up considerably. In particular, fracking is a huge environmental concern that Craig Brainard, a volunteer and expert with Sierra Club’s Michigan Beyond Natural Gas and Oil Committee, has studied for over a decade. He has traveled all across Michigan – talking with drillers, legislators, the Michigan Department of Environmental Quality, Michigan Department of Natural Resources, local officials and ordinary citizens. Craig will present the very latest information on oil and gas drilling in Michigan and how it impacts global warming and what we need to do to protect our Great Lakes State in a free program, Don’t Frack Up Our Future, Tuesday, Aug. 11, at 5:30pm at the St. Joseph Public Library, 500 Market St., St. Joseph. The event is sponsored by the Berrien County Democratic Women and Sierra Club SouthWest Michigan Group. For more information, call 269-945-8871. To learn more about Sierra Club Michigan’s Beyond Natural Gas and Oil work, click here.  Photo by Anne Woiwode BENEFITS OF CHARITABLE GIFT ANNUITY With a charitable gift annuity with The Sierra Club Foundation, you help protect wild places and wildlife for future generations while receiving anannual payment for life, plus tax savings. Payment rates go as high as 9 percent, depending on your age.  This is a good way for anyone who cares about the environment to get an upfront tax deduction, to help the Sierra Club and our Michigan Chapter, and at the same time get a predictable stream of income for the rest of your life. For more information on a charitable gift annuity and a no-obligation example of your benefits based on your age and donation amount (minimum of $10,000) contact Jan O'Connell at 616-956-6646. EXPLORE AND ENJOY: PIGEON RIVER COUNTRY STATE FOREST Sierra Club is committed to "exploring, enjoying and protecting the planet." Each issue of the Michigan Chapter Update includes a feature on exploring and enjoying places in Michigan.  Lorne Beatty, the Michigan Chapter Outings Chair, introduces us to the Pigeon River Country State Forest. Pigeon River Country State Forest offers something for everyone who loves the outdoors. Photo courtesy DNR Michigan's over four million acres of public land offer numerous State and National Forest Campgrounds, frequently located on inland lakes or streams. One of my favorite places to camp, fish, hike, cross country ski and explore in the northern lower peninsula is the 95,000 acre Pigeon River Country in Otsego, Cheboygan and Montmorency Counties. The Pigeon River Country is easily accessed from I-75 at the Vanderbilt exit, via Sturgeon Valley Road. The Pigeon River Country encompasses the headwaters and several, remote miles of thePigeon, Sturgeon and Black Rivers, which are enjoyed by paddlers and trout fishermen alike. There are several small and uncrowded state forest campgrounds in the Pigeon River Country which can be found here. The twin Blue Lakes, while not a campsite, offer walk-in canoe fishing for bass, perch and pike--a fisherman's paradise. In addition, the Devil's Soup Bowl is one of the unique sinkhole lakes in the Pigeon River Country. From the lake, a short hike from a parking area offers a scenic overlook with a beautiful panoramic view of the forest with the Cornwall flooding in the distance. The Pigeon River Country still showcases remnants of Michigan's old growth pine forests, which is home to Michigan's elk herd. A network of dirt roads, two tracks and hiking trails connect these natural features with most of the campgrounds. Mapsare recommended, as finding well-marked main roads can prove difficult. For an interesting and complete history of this area, I suggest reading The Pigeon River Country by Dale Clark Franz. ------------------------------------------------------------------------------------------------------ Here are Some Great Ways to Support Sierra Club Michigan Chapter and Get Engaged!  Support the Michigan Chapter!  Click here to make a  Secure Online Donation  Sierra Club Michigan on   Facebook Sign up for a Sierra Club     Credit Card today  Follow us on Twitter    @MichiganSierra  Not a member? Join today! We welcome feedback on the Michigan Chapter Update - Contact us at michigan.chapter@sierraclub.org  Michigan Chapter | 109 E. Grand River Avenue, Lansing, MI 48906 | Phone: (517) 484-2372 | Contact Us Update My Profile | Manage My Email Preferences  Update My Interests | Unsubscribe from Michigan Chapter Updates