Miscommunications Are Frequent in Human Discourse – Sometimes They Become Intentional Weapons

Morgan Lewis & Bockius has produced a report that concluded that Entergy employees did not lie or intend to mislead investigators. Several employees have been punished anyway and there is a chance that a reliable plant that produces more than $100 million worth of electricity per year without any greenhouse gas emissions will be shutdown due to a lack of trust in the company statements. Peter Bradford and Arnie Gundersen have panned the report. In case you are in the dark about what I am talking about, read on – it is a complicated story.

Entergy hired Morgan Lewis & Bockius to conduct an internal investigation of certain allegations and provide a report to the company. That report cost Entergy a lot of money – their chosen law firm spent 2,300 billable hours interviewing 29 Entergy employees and reviewing 65,000 documents. The investigation focused on whether or not employees intended to mislead state officials and state employed consultants conducting a reliability assessment of the plant by stating that Vermont Yankee did not have “an underground piping system that carries radionuclides.” The commissioned report was also intended to determine if two company officials lied under oath when they testified – about six months after the reliability assessment report had been delivered – that the plant did not have any systems meeting that definition.

Here is the background as I understand it. Vermont Act 189 directed an independent assessment of Vermont Yankee in preparation for a recommendation on whether or not the plant could continue to operate reliably. Though the act recognized that Vermont Yankee had been a reliable power source for Vermont and supplied one third of the electricity used by Vermont citizens, it mentioned two occasions in 2007 when the plant had to reduce its production or shut down completely.

The act even states that these production reductions require the state’s utilities to purchase “market power, often at a greater price to our citizens.” After the preamble, the purpose for the act is clearly stated:

It is the purpose of this act to provide for a thorough, independent, and public assessment of the reliability of the systems, structures, and components of the Entergy Nuclear Vermont Yankee facility.

Aside: Here is a place for critical thinking. If two instances of production reduction cause an increase in the cost of power for state utilities, what will a complete and permanent shutdown of the plant do to the cost of power for those utilities? End Aside.

That act was approved in June of 2008. According to the act, “The department of public service, in consultation with the public oversight panel, shall design the work plan and establish a time frame for the comprehensive reliability assessment.” There was a list of seven specific systems that the act required to be evaluated, including “an underground piping system that carries radionuclides.” The DPS hired a company named Nuclear Safety Associates (NSA) to perform the independent assessment.

In the initial stages of that assessment, the contractor, an appointed Public Oversight Panel and Entergy representatives held discussions to determine the scope of the investigation and identify documents and records that would be required. It was during these scoping discussions that the contractor, the Public Oversight Panel (POP) and Entergy all agreed that Vermont Yankee did not have any systems that met the intention of the description of “underground piping carrying radionuclides”.

The scope of the investigation related to the piping “caused a great deal of confusion,” according to the report, resulting in the conclusion by both Yankee and DPS that only pipes carrying liquid materials were under consideration — not those carrying gaseous materials.

The state’s nuclear engineer, Uldis Vanags, claimed “NSA did not seek out the information requested because it was beyond the work scope … agreed upon by the POP and DPS.”

Because Yankee has no underground pipes as described, staffers testified there was no such system to evaluate.

Staffers did not consider pipes in “below grade” trenches or vaults in the scope of the assessment, only “buried” pipes, which are in direct contact with soil, none of which they believed existed at the plant. A member of the Public Oversight Panel agreed with the Yankee staffers. (Emphasis added.)

That is a very interesting comment – here are the statutory members of the Public Oversight Panel as listed in the March 19, 2009 testimony of Peter Bradford to the House Committee on Natural Resources and the Senate Finance Committee on the subject of the Vermont Yankee Reliability Assessment:

• Peter Bradford
• Arnold Gundersen
• William Sherman

The panel was also supported during its period of performance by the following people who were chosen by the statutory members:

• Dr. Fred Sears
• David Lochbaum (served until February 17, 2009)
• Dr. Lawrence Hochreiter (passed away in September 2008)

As Mr. Bradford testified, each of his colleagues on the Public Oversight Panel considered themselves to be “accomplished nuclear engineer(s) with extensive experience in nuclear plant technology and operation.” Here is his description of the panel’s assigned tasks:

The Panel’s work encompassed four major tasks, consulting with DPS on the choice of the audit team for the reliability assessment, consulting with DPS on the scope of the reliability assessment (emphasis added), giving feedback during weekly calls with DPS and sometimes NSA during the course of the assessment and reviewing the final
NSA report.

There is one other very interesting section in that testimony that gives a cynical and suspicious guy like me pause for reflection:

We conclude the General Assembly’s Overall intent in Act 189 has been met. Notwithstanding this overall conclusion, we found a number of areas in which the NSA team could have improved its work. The audit team did an adequate job. However, individual Panel members are aware of documentation that they might have expected the audit team to discover and review, but it did not. (Emphasis added.)

Perhaps I am reading too much into that statement, but it seems to me that Mr. Bradford has given a clear indication that at least one member of the POP had set a trap and been disappointed that it had not been sprung by the independent assessment team. Here is my suspicion, which is a complete guess on my part since I have only spent a few hours reading documents I could find using my favorite search tools.

I suspect that at least one member of the panel that approved the planned scope of the reliability assessment knew full well that there were drain pipes in underground trenches. Any competent power plant engineer knows that drain pipes have to have a downward slope in order for gravity to work, that requirement generally means that drain pipes end up in bilges on ships or in below grade tunnels for land based plants.

Competent nuclear engineers should know enough to question an assertion that drain pipes carrying steam produced in a boiling water reactor plant do not contain any radionuclides. Boiling water reactor steam always contains a small concentration of at least one radionuclide – tritium. It would have been simple for the Public Oversight Panel members clear up the communications and requirements for all people concerned if they really wanted to assess those tunnel enclosed pipes as part of the overall reliability investigation.

In defense of the Entergy staff members who helped to establish the scope of the assessment, I understand why they would be interested in trying to limit how deeply the independent team went and how much time they spent inspecting. Not only are all outside inspections inherently intrusive and time consuming for company employees who have to help the inspectors and search for often obscure documents – been there, done that – but in this case, every hour that the investigators spent was billed to Entergy. Here is the applicable section from Vermont Act 189:

The members of the public oversight panel are entitled to receive compensation as determined jointly by the speaker of the house, the president pro tempore of the senate, and the secretary of administration. Members of the public oversight evaluation panel shall also be entitled to reimbursement for actual and necessary expenses related to the performance of their duties. The compensation and costs incurred by the public oversight panel shall be charged to the petitioner for a license extension under the provisions of 30 V.S.A. §§ 20 and 21.

(b) The compensation and costs incurred by the audit inspection team and other expenses incurred in the conduct of the comprehensive reliability assessment shall be charged to the petitioner for a license extension under the provisions of 30 V.S.A. §§ 20 and 21. (Emphasis added.)

Of course, the understandable effort to limit the scope of the assessment and minimize the time and expense of that assessment has backfired and ended up costing far more than simply including the tunnel protected piping in the vertical reliability assessment in the first place. However, I believe that the employees could not have understood that they were being set up to fail by people who are professionally engaged in action to discourage the use of nuclear energy in the United States.

The executives who testified under oath were apparently not fully prepared during their briefings by staff members. Having had the experience of preparing congressional testimony and attending a number of preparatory sessions for often distracted and very busy executives (in my case, flag officers) I realize just how difficult it can be to cover all of the nuances and potential questions. I feel for the staff members who might have recognized upon reviewing the transcript that their leader did not get it quite right during the testimony. I have experienced the significant organizational challenges in getting any corrections made. It is not easy to communicate in treacherous situations where there are people involved who do not want the effort to succeed.

In January 2010, a ground water monitoring well installed and maintained by Entergy indicated the presence of tritium, a weakly radioactive isotope of hydrogen that is produced when water is exposed to a neutron flux inside an operating nuclear reactor.

The discovery of an above normal concentration of tritium in the groundwater started a search for the source, but it also started a media controversy pushed by activists and politicans who want to force Vermont Yankee to shut down. The controversy has been over claims that Entergy employees lied to the state employed contractors and the Department of Public Service. The question of whether or not the company’s employees lied is apparently as important to some of the most ardent opponents of the plant’s continued operation as the “what did he know and when did he know it” question that became a key component of the turmoil associated with the Watergate investigation and the Iran-Contra affair.

Entergy’s intent in hiring Morgan Lewis & Bockius to conduct the investigation was to resolve the controversy by determining and publishing what was actually said and written in the exchanges between the company representatives and the independent assessment group. Unfortunately, I do not think that Entergy got its money’s worth. The investigating team left itself open to questions by not asking anyone outside of the company for their recollections of the situation.

Morgan Lewis’s report has been panned by Arnie Gundersen and Peter Bradford, two of the three statutory members of the Public Oversight Panel as being incomplete, biased and a whitewash. David O’Brien, commissioner of the Department of Public Service, has indicated that he believes that the report is not a “360” review but a “180” in that it focused on only one side of the story. That is unfortunate; Mr. O’Brien has been one of the plant’s strongest defenders and has regularly supported the license extension as good for Vermont’s electricity users.

DPS had recommended that the plant be allowed to keep operating, but O’Brien said the misunderstandings and miscommunications over the extent of underground piping at the plant have proved to be “a complete and unnecessary distraction.”

By any outside measurement, Yankee is one of the most highly performing plants in the country, he said.

“Certainly better than others.”

The power plant has operated continuously at or near peak power for more than 525 days.

Not only is Yankee highly reliable, said O’Brien, it is crucial to the state’s and Windham County’s economy and the carbon footprint of Vermont.
(Source: Brattleboro Reformer (April 24, 2010) – O’Brien: Entergy doesn’t know how to play it straight)

Here is a quote from a Portland Press article titled Entergy’s officials deny misleading state: One expert says Vermont Yankee’s owner knew misrepresentations had been made, however.

Arnie Gundersen, a former nuclear industry executive who now works as a consultant to Vermont lawmakers on Vermont Yankee issues, dismissed the report’s conclusion.

He said Vermont Yankee officials knew as early as August 2009 that misrepresentations had been made about the piping issue, but that no attempt was made to correct them.

Of the report, he said: “They cherry-picked the data to support the conclusion they needed to reach. They went in knowing the answer. The report selectively chooses snippets and ignores anything on the record that disagrees with it.”

Peter Bradford suggested that “Entergy would have been wiser to hire an independent firm with a strong northern New England reputation than a firm with such extensive ties to both Entergy and to the nuclear industry”.

Mr. Bradford is an adjunct law professor who was a member of the Nuclear Regulatory Commission at the time of the Three Mile Island loss of coolant accident followed by a partial core melt. Arnie Gundersen has a long history of employment by organized anti-nuclear groups. Despite his nuclear engineering educations and early career experience, he has been on the outside looking in for at least two decades. (Disclosure: I am also “on the outside looking in”, but I actually like nuclear fission technology and believe that it has the potential to make the world a more prosperous place. I have never held an NRC license as a reactor operator, but the US Navy once thought I knew enough to assign me to serve as the Engineer Officer of a 25 year old nuclear powered submarine for 40 months.)

Arnie Gundersen, who told his personal story quite candidly during the February 24, 2010 installment of Democracy Now, has clear motivation for animosity toward the nuclear industry. He states in the interview that he made the decision to become a nuclear watchdog after being fired from his job as a Vice President of Nuclear Energy Services and then being sued by the company for $1.5 million dollars, an action that eventually resulted in a bankruptcy filing. (In the below video, which provides additional background for the story, you can scroll forward to about minute 22 to hear this story directly from Mr. Gundersen.)

There is one more piece of information that nuclear operators will understand as germane to Mr. Gundersen’s credibility. Though he claims to have been a licensed plant operator, the only reactor that Mr. Gundersen was ever licensed to operate was the research reactor at Rensselaer Polytechnic Institute between 1971 and 1972 while he was a graduate student in Nuclear Engineering. There is no other indication in his Curriculum Vitae (CV) of employment in reactor operations.

Someday soon, I will get around to talking about Mr. Gundersen’s most recent attack on the industry that he blames for his personal bankruptcy, but this post is already sufficiently long and complicated.

Additional reading

Seven Days “Vermont’s Independent Voice” (December 12, 2007) – Fission Accomplished

VTDigger.org (January 31, 2010) – Gundersen: Underground pipes in off-gas system likely source of tritium at Yankee.

This story includes some additional hints that Gundersen was being a bit devious in the way that he questioned plant staff members about underground piping. How could a man with a BS and an MS in Nuclear Engineering plus 18 years of experience in the business of servicing nuclear power plants – including significant decommissioning experience – NOT know that boiling water reactors have off-gas systems, that off gas systems contain SOME radioactivity, and that drain systems HAVE to eventually wind up below grade in order for gravity to work? Using Gundersen’s own phrasing, the only possibilities are that he was either devious or dumb, but there is more evidence to support the latter than the former.

Note: The above post was corrected after being contacted via the comments by Mr. Peter Bradford, who provided clarification about his education and career history.