Cleveland.com: FES Nuclear Decommissioning Funds Inadequate, Consumer Groups Tell NRC

June 19, 2018
FES Nuclear Decommissioning Funds Inadequate, Consumer Groups Tell NRC
By John Funk, The Plain Dealer

CLEVELAND, Ohio — The trust funds that FirstEnergy created years ago to pay for the demolition of its nuclear power plants and clean-up are no longer adequate, a coalition of consumer and environmental groups is arguing today at the Nuclear Regulatory Commission.

Citing research done by an independent investment consulting company, lawyers for the Midwest-based Environmental Law and Policy Center and a veteran nuclear reactor expert have petitioned the NRC to take another look at the trust funds.

The NRC’s Petition Review Board is not expected to make a decision on the ELPC request immediately, said an agency spokesman.

The ELPC is arguing that as of Dec. 31, 2016, the trust funds were nearly $2.75 billion short. That’s the last publicly available decommissioning fund data.

And that date was before FENOC and plant owner FirstEnergy Solutions filed for Chapter 11 bankruptcy protection from creditors who were owed more than an estimated $2 billion on March 31 of this year.

Still, on April 4, the NRC issued a statement declaring that the company’s decommissioning funds met NRC regulations.

A spokesman for FES/FENOC had no comment, other than to cite the April 4 NRC statement.

Howard Learner, a lawyer and executive director of the ELPC, said the announced shutdown of the power plants by 2021 means the funds will have even less time to grow before they are needed to pay for decommissioning.

He said the shortfall will probably mean that the company will delay decommissioning the reactors after it shuts them down and instead move them into an NRC category called SAFSTOR.


Toledo Blade: Group That Filed Algae Lawsuit Seeks Comprehensive Cleanup Strategy

June 11, 2018
Group That Filed Algae Lawsuit Seeks Comprehensive Cleanup Strategy
By Tom Henry

The group that forced the state of Ohio into finally acknowledging that chronically fouled western Lake Erie is indeed an impaired body of water has filed a motion in federal court seeking what is widely considered as the most comprehensive — and potentially costly — cleanup strategy.

The Environmental Law & Policy Center, which is based in Chicago and has satellite offices in other parts of the Midwest, said in its filing on Friday that nothing short of a Total Maximum Daily Load program — usually referred to as a TMDL — is legally acceptable for western Lake Erie now because of provisions spelled out in the federal Clean Water Act once a body of water has been designated as impaired.

Under a TMDL, the Ohio Environmental Protection Agency would be required to calculate the total pollution load — in this case, algae-forming phosphorus — that is acceptable for western Lake Erie and put sources of that nutrient — mostly farms — on a so-called “pollution diet.” That would mean a time-consuming fingerprint analysis, and a firm cap on how much phosphorus can come off each tract of land — with strict penalties for non-compliance.

The Kasich administration first resisted calls for the impairment designation on behalf of the state’s powerful agricultural lobby, claiming it would lead to unnecessary litigation that could hamper efforts for reducing algae more than sticking to voluntary incentives and getting widespread cooperation from farmers. It has long been working with the agricultural industry on getting more farmers to embrace best-management practices.

Now, it is balking at calls for a TMDL and, on May 10, the U.S. EPA formally agreed it would not require the state agency to develop one for western Lake Erie.

That decision — much like the federal agency’s original decision to let the state off the hook on the impairment designation — is being challenged by the ELPC, with support from Toledo-based Advocates for a Clean Lake Erie.

The motion is among the newest in a case before U.S. District Judge James Carr.

In her filing, Madeline Fleisher, a senior ELPC attorney, said the U.S. EPA’s decision to go along with Ohio’s plan is “arbitrary, capricious, an abuse of discretion, and not in accordance with the Clean Water Act.”

The Ohio EPA did not respond to requests for comment, while a U.S. EPA spokesman said the federal agency has a policy against commenting on pending litigation.

Two U.S. Department of Justice attorneys representing the federal EPA told Judge Carr at a recent court hearing in Toledo it is their position that he cannot order a TMDL. They also said they believe the case should have been dismissed after the impairment designation was made.


Energywire: Green Groups Push FirstEnergy on Decommissioning Funding

June 7, 2018
Green Groups Push FirstEnergy on Decommissioning Funding
By Jeffrey Tomich

A coalition of environmental groups is urging regulators to take enforcement action against FirstEnergy Corp. and bankrupt FirstEnergy Solutions on the grounds that the companies have inadequate funding set aside to meet nuclear decommissioning requirements for reactors in Ohio and Pennsylvania.

The Chicago-based Environmental Law & Policy Center and other advocacy groups filed a citizen’s petition with the Nuclear Regulatory Commission and are hoping to soon get a chance to advance their case before the NRC’s Petition Review Board.

Margrethe Kearney, an attorney for the Chicago-based ELPC, said the groups had concerns about the adequacy of decommissioning funding for the FirstEnergy Solutions (FES) plants even before the company announced plans to deactivate its Davis-Besse, Perry and Beaver Valley plants by 2021.

Plans to accelerate the shutdown of the reactors only exacerbates those concerns because it means there’s less time for funds in decommissioning trusts to grow, she said.

Kearney said the groups want the NRC to require FES to provide updated financial information and be required to fund any decommissioning shortfall.

“The NRC can absolutely require them [FES] to put more money into those decommissioning trusts,” she said. “At a minimum we need to make sure we’re protecting taxpayers from getting stuck with this burden.”

The environmental groups, which also include Ohio Citizen Action, the Ohio Environmental Council and the Environmental Defense Fund, are awaiting the next step in the process — an appearance before the Petition Review Board.

But that won’t happen unless and until the parties get an order from the federal judge overseeing FirstEnergy Solutions bankruptcy clarifying that an automatic stay implemented as part of the bankruptcy case doesn’t apply to the NRC proceeding.

FES filed for Chapter 11 bankruptcy protection on March 31 (EnergyWire, April 2).

ELPC and the other advocacy groups filed a motion with the court last month seeking to lift the stay. The U.S. government this week filed a response to the motion asking the court to clarify that the stay shouldn’t apply to the NRC’s regulatory proceeding.

The advocates’ motion is currently scheduled to be the subject of a court hearing next week.

FirstEnergy Solutions, meanwhile, cited an April 4 memo from the NRC stating that decommissioning funding for the Davis-Besse, Perry and Beaver Valley plants “continues to be sufficiently funded under NRC regulations.”

The memo said the NRC Office of Nuclear Reactor Regulation will continue to monitor reactor decommissioning funding for each site in the wake of the FES bankruptcy.

It further states that NRC’s Office of the General Counsel notified the Department of Justice on April 2 that the NRC has an interest in the bankruptcy proceeding, “including protection and preservation of the decommissioning trust funds.”

The environmental groups, however, dispute the NRC’s analysis in light of plans to deactivate the three plants by 2021.

“That changes all of the calculations,” Kearney said.

Under NRC regulations, FES parent FirstEnergy Corp. would be required to backstop any shortfall in decommissioning funding.

But FirstEnergy has been trying to distance itself from the bankrupt subsidiary.

As of Dec. 31, FirstEnergy listed $2.7 billion invested in trusts for decommissioning and environmental remediation for the FES nuclear plants (including $1.9 billion held by FES). But the decommissioning costs were omitted from asset retirement obligations listed in the company’s most recent quarterly filing with the U.S. Securities and Exchange Commission.

In April, FirstEnergy announced agreement with two key groups of creditors representing a majority of the outstanding debt obligations of FirstEnergy Solutions that would shield the Ohio-based utility holding company from any future claims related to the FES bankruptcy, including any potential costs associated with decommissioning of the nuclear plants in Ohio and Pennsylvania that are scheduled to shut down by 2021.

A FirstEnergy spokesman didn’t respond to emailed questions.

The petition by environmental groups said figures provided to the NRC by FES in March 2017 show decommissioning trusts for the Beaver Valley 1 and 2, Perry and Davis-Besse reactors are collectively $350 million short of what’s needed to cover estimated decommissioning costs.

While the NRC considers funding adequate on the expectation the balances will grow over time, the groups say actual decommissioning costs are likely to be greater than the company estimates, according to a report by a 2017 study by the Callan Institute.

The study, based on information on Dec. 31, 2016, estimates the decommissioning funding shortfall for FirstEnergy is closer to $2.75 billion. The estimate includes “pro forma” costs for the four reactors to be deactivated by FES during the next three years as well as the idled Three Mile Island Unit 2 in Pennsylvania, owned by FirstEnergy subsidiary GPU Inc.

If the NRC agrees with the environmental groups’ petition and requires FES to increase funding in the nuclear decommissioning trusts, the agency shouldn’t have to fight off other creditors in the bankruptcy proceeding to do so, Kearney said.

“The NRC has the police and regulatory authority to require FES to put that money away without having to go to the bankruptcy court,” she said. “I don’t think any of that money should be up for grabs.”


PJM capacity auction shows First Energy’s nuclear plants aren’t needed

FirstEnergy critics say PJM auction shows its nuclear plants aren’t needed

The bankrupt company’s three Ohio nuclear plants failed to clear PJM’s capacity auction despite higher prices.

The failure of FirstEnergy Solutions’ nuclear power plants to clear a regional capacity auction supports the case for closing them, critics said.

Regional grid operator PJM announced the results of its 2021-2022 capacity auction last week. While FirstEnergy Solutions groused about the results, others expressed vindication in the rejection of its three nuclear plants.

“The recent PJM capacity market auction indicates how extremely uncompetitive the FES nuclear plants are today,” said Howard Learner, executive director of the Environmental Law & Policy Center.

FirstEnergy Solutions in a statement called the results “as unfortunate as they are unsurprising.” The company announced on March 28 plans to close the power plants within three years, but was required to offer them into the capacity auction because it didn’t announce the closures sooner.

The annual PJM capacity auction aims to ensure that enough electricity will be available to cover projected peak needs plus a margin of safety for the next three years. Generators submit a price per megawatt for capacity they can guarantee, and any at or below the clearing price are accepted.

This year’s clearing price for FirstEnergy’s Ohio service zone: $171.33 per megawatt-day. Bids at or below that amount cleared the auction.

FirstEnergy Solutions’ inability to clear the auction hasn’t stopped it from continuing to seek subsidies that might allow it to continue operating the plants. “We will continue to seek legislative and regulatory relief at the state and federal levels — relief that recognizes the critical but uncompensated contribution that our plants make to the reliability and resilience of the regional grid,” said Thomas Mulligan, the company’s outside media relations consultant and spokesperson.

That comment tracks with remarks that FirstEnergy President and CEO Chuck Jones made last month when the company released its first quarter earnings.


Toledo Blade: Judge Says He May Back Away from Lake Erie Algae Lawsuit

Judge Says He May Back Away from Lake Erie Algae Lawsuit
By Tom Henry

While still clearly disgusted by the lack of progress toward solving western Lake Erie’s chronic algae problem, U.S. District Judge James Carr has left open the possibility of eventually backing away from the case in front of him — but only if there comes a point in time in which state and federal agencies convince him they are taking the public health threat seriously enough.

Right now, the judge said, they’re not.

Throughout a two-hour discussion in open court Wednesday with lawyers from the U.S. Department of Justice and the Chicago-based Environmental Law and Policy Center, Judge Carr underscored his desire to see the U.S. Environmental Protection Agency and its state partner, the Ohio Environmental Protection Agency, become “truly aggressive” and said they “should treat this as a grave condition.”

But Judge Carr, who in an April 10 filing accused those two agencies of botching the Lake Erie impairment controversy, also broadened his appeal to members of the Ohio General Assembly — especially conservatives who have made it virtually impossible to pass stricter rules on agriculture. He likewise implored agencies such as the Ohio Department of Agriculture to make algae-prevention their No. 1 priority.

Nobody, he said, can dispute Lake Erie is “sick.”


Cleveland Plain Dealer: FirstEnergy Must Guarantee Nuclear Clean Up, Environmental Groups Tell Feds

FirstEnergy must guarantee nuclear clean up, environmental groups tell feds
By John Funk

CLEVELAND, Ohio – FirstEnergy’s power plant subsidiaries have not put enough money into federally mandated decommissioning trust funds to pay for the shutdown and cleanup of each of its four nuclear reactors, charges an environmental group with a reputation as a legally effective environmental advocate.

The Chicago-based Environmental Law and Policy Center, or ELPC, made that charge in a petition filed in March with the Nuclear Regulatory Commission. The ELPC’s intervention in the Peabody Energy bankruptcy led to the court requiring that company to purchase $1.2 billion in surety bonds to guarantee clean up.

The ELPC wants the NRC to hold parent company FirstEnergy Corp. responsible for bankrolling what it argues could well be a multi-billion reactor cleanup shortfall, which taxpayers or customers could be forced to pay.

The ELPC petitioned the NRC just days before the FirstEnergy Solutions Corp. filed for bankruptcy protection on March 31 and the FirstEnergy Nuclear Operating Co. told the NRC it would close its nuclear plants within two years.

Now the ELPC, joined by the New York-based Environmental Defense Fund, the Ohio Environmental Council and Ohio Citizen Action, have intervened in the bankruptcy case under way in the U.S. Bankruptcy Court for the Northern District of Ohio.


InsideClimate News: Toxic Algae Blooms Occurring More Often, May Be Caught in Climate Change Feedback Loop

May 15, 2018
Toxic Algae Blooms Occurring More Often, May Be Caught in Climate Change Feedback Loop
By Georgina Gustin

Blooms of harmful algae in the nation’s waters appear to be occurring much more frequently than in the past, increasing suspicions that the warming climate may be exacerbating the problem.

The Environmental Working Group (EWG) published newly collected data on Tuesday reporting nearly 300 large blooms since 2010. Last year alone, 169 were reported. While NOAA issues forecasts for harmful algal blooms in certain areas, the advocacy group called its report the first attempt to track the blooms on a nationwide scale.

The study comes as scientists have predicted proliferation of these blooms as the climate changes, and amid increasing attention by the news media and local politicians to the worst cases.

Just as troubling, these blooms could not only worsen with climate change, but also contribute significantly to greenhouse gas emissions.

EWG based its study on news reports and before-and-after satellite images that show the expansion of the blooms. Though the rapid increase in the annual numbers might reflect more thorough observations and reporting in recent years, Craig Cox, who focuses on agriculture for EWG, said the numbers may still be on the low side.

In 2014, the news was especially urgent in Toledo, where a toxic algal bloom in Lake Erie forced health officials to declare the water unsafe for drinking and bathing. Harmful algae blooms had been common in the western part of Lake Erie from the 1960s through the 1980s, but they had diminished with better pollution controls—until about a decade ago, according to NOAA.

Now the blooms—thick undulating mats of green—have become an annual occurrence there.

The root cause of the problem lies mainly in agricultural runoff that contains phosphorus, which encourages algal growth.

At a recent conference, the mayor of Toledo pointed the blame for the continuing problem squarely at the Ohio Farm Bureau Federation, saying that lawmakers in the state were too intimidated by the group to support legislation to deal with the problem. “It’s probably the most powerful interest group in Ohio,” Mayor Wade Kapszukiewicz said in an interview.

Kapszukiewicz noted that the city spent billions of dollars upgrading its water treatment facility more than a decade ago and that there have been no sewage overflows into the lake since then, and yet the blooms are getting worse. “Toledoans are paying for a problem we didn’t create,” he said.

“Nutrient runoff” comes from sewage and other sources, but mostly from fertilizer and manure, which are especially high in phosphorus.

The agricultural industry in Ohio and elsewhere has long been aware of the problem. Joe Cornely, a spokesman for the Ohio Farm Bureau, said the bureau had been looking into it for years. But when it came to legislative and regulatory measures, Cornely said: “You’ve heard the old saying, ‘You can have it fast or right.’ We want it to be right.”


Toledo Blade Editorial: A Crusade for Lake Erie

Editorial: A Crusade for Lake Erie

Lake Erie has found a champion in U.S. District Judge James Carr. The judge last week ruled that the U.S. Environmental Protection Agency has some answering to do for the way it handled the Ohio’s seemingly lax oversight of the lake’s environmental well-being.

Even though Gov. John Kasich’s Ohio EPA finally relented last month and admitted that Lake Erie is so polluted that it qualifies as impaired under the terms of the Clean Water Act, Judge Carr is pressing forward.

Chicago-based Environmental Law & Policy Center and Toledo-based Advocates for a Clean Lake Erie filed the lawsuit last year to force just such a designation. Invoking federal law should trigger federal oversight of a Lake Erie cleanup, which should have more teeth than the voluntary measures the Kasich administration has insisted for years will be enough to solve the pollution problem.

But even though the U.S. EPA has instructed Ohio officials to revisit their science on the matter and Ohio authorities have given Lake Erie the impaired label the lawsuit’s plaintiffs were seeking, Judge Carr is not ready to call the case closed.

He has taken both agencies to task and signaled that he intends to retain jurisdiction over the case. If the environmental regulators who are supposed to recognize pollution fouling the source of drinking water for millions of Great Lakes residents do not, apparently the judge is ready to take on that watchdog role.

And even though the impairment designation was an important step, it was just the first step in what will undoubtedly be a long and arduous process of cleaning up the lake.

The phosphorus pouring out into the open lake each year has fueled toxic algae blooms that threaten Lake Erie’s sport fishing and tourism, Toledo’s drinking water, the region’s economic revitalization, and our quality of life.

Agricultural runoff is the main culprit in this phosphorus runoff, but tracking exactly how much comes from where in the watershed of the lake’s western basin will require study. More than that, setting limits on this pollution and helping farmers meet them will be no easy task.

The Kasich administration wants the General Assembly to expand the definition of agricultural pollution to include phosphorus runoff. This would give the state’s agriculture department more authority and also would allow the state to set phosphorus limits in ways it cannot do now.

Predictably, the state’s powerful agricultural lobby is already pushing back, calling regulation premature and recommending more study and a slower pace.

Ohio’s farmers need a healthy Lake Erie with drinkable, fishable, swimmable water too. And Lake Erie is going to need more than one champion. Now it is time for a few lawmakers in Columbus to join Judge Carr’s cause.

Great Lakes Now: Federal judge orders U.S. EPA to enforce Clean Water Act in Ohio

By Gary Wilson

Activist: Agencies “not willing to act in the public interest”

A federal judge said last week that the U.S. Environmental Protection Agency had “given Ohio a pass” on declaring Lake Erie officially “impaired” for waters with toxic algae going back to 2012 and 2014. The opinion written by Judge James Carr excoriated both the Ohio and the U.S. EPA’s for not living up to requirements under the Clean Water Act going back to 2012.

An “impaired” designation requires a state to implement a plan to remediate the deficiency. Ohio has consistently declined to designate the open waters of Lake Erie as “impaired” in spite of ample and long-standing scientific evidence to the contrary.

Ohio has instead, with the knowledge of its overseer, the U.S. EPA, parsed the law and played a game of “administrative pushball” according to Judge Carr where it tried to push responsibility for declaring the lake impaired back to the U.S. EPA based on an agreement with other states and Canada.

Michigan has declared its portion of Lake Erie impaired.

In the opening remarks of the decision, the judge set the table by recounting details of the 2014 Toledo water crisis where 500,000 people were told that their water was “not fit to drink or use for any other household purpose.”

The case before the judge was brought by Chicago’s Environmental Law and Policy Center (ELPC) and the Toledo nonprofit Advocates for a Clean Lake Erie (ACLE). The groups sued saying that the U.S. EPA had missed deadlines in holding Ohio accountable for declaring whether or not the open waters of Lake Erie were “impaired.”

The judge’s ruling sent the case back to the U.S. EPA and gave the agency 30 days to either approve or disapprove of Ohio’s “impaired” waters list. Perhaps sensing a legal defeat, Ohio has recently moved closer to declaring Lake Erie’s open waters impaired and has indicated a receptiveness to tighter regulations to control nutrient runoff from farms. Legislation with tighter regulations on farm activity is said to be in the works in the Ohio legislature. The administration of Gov. John Kasich has consistently yielded to the requests of farmers who say voluntary measures to control pollution runoff will work.

Slow path to health

Judge Carr wrote in his decision that the U.S. EPA said that remediation of Lake Erie after an “impaired” designation could take between eight and 23 years.

Carr noted that in 1988 Ohio’s General Assembly moved to eliminate phosphorus from laundry detergent that also plagued Lake Erie in a law passed in 1990. .

The judge said similar legislative action to deal with nutrient runoff from farms “appears to be the most expeditious and effective means of accomplishing the goals of the Clean Water Act.”

“More importantly, it could probably do so in substantially less time than the potential twenty-three years it will otherwise take,” Judge Carr wrote.

Ohio Gov. Kasich’s term is up in 2019 leaving the governor’s seat open.

ELPC’s Learner has advice for citizens voting in this years gubernatorial race. “People should be asking the candidates for governor, what action are you going to take to reduce pollution that has led to toxic blue-green algae blooms that threaten safe, clean drinking water for more than a half a million people in the Toledo area,” Learner says.

Neither the U.S. EPA or the Ohio EPA has commented on the judge’s ruling.

The National Oceanic and Atmospheric Administration begins its annual forecasts of Lake Erie algae blooms for 2018 in early May.


Toledo Blade: Data Shows Lake Erie Impairment Declaration Was Justified in 2010

April 13, 2018
Data Shows Lake Erie Impairment Declaration Was Justified in 2010
By Tom Henry

Although Ohio has joined Michigan in declaring the open waters of western Lake Erie as impaired, new data shows there was scientific justification to do that as far back as 2010 — four years before the Toledo water crisis.

The data was generated for the Ohio Environmental Protection Agency after the U.S. EPA told the state agency back in January to rethink the Kasich administration’s steadfast refusal over many years to declare the open water as impaired. The administration’s reversal on that front undoubtedly will mean unprecedented controls on agriculture and tighter sewage regulations.

Tim Davis, a former National Oceanic and Atmospheric Administration algae researcher in Ann Arbor, told attendees of the annual Lake Erie Foundation conference that the science — though not developed until a few weeks ago — shows the lake’s open water should have been declared impaired in 2010.

The conference was held Thursday at W.W. Knight Nature Preserve.

Mr. Davis explained a complicated formula he and other algae researchers were asked to develop by the Ohio EPA once it looked like the U.S. EPA was headed toward defeat in the lawsuit brought against it by the Chicago-based Environmental Law & Policy Center on behalf of Toledo-based Advocates for a Clean Lake Erie.

The formula has a metric scientists developed for determining years in which algal blooms grow particularly strong. Once at least two years of excessive blooms have been documented over a consecutive six-year period, then the impairment declaration should have been made. That was back in 2010, said Mr. Davis, also a Bowling Green State University algae researcher.

Joining Mr. Davis in developing that protocol were BGSU algae colleagues George Bullerjahn and Mike McKay, as well as Tom Bridgeman, University of Toledo algae specialist and newly named director of UT’s Lake Erie Center; Justin Chaffin, who heads algae research for Ohio Sea Grant and Ohio State University’s Stone Laboratory, and others. The work was done in collaboration with the Ohio EPA and the U.S. EPA, Mr. Davis said.

“It was the lawsuit that caused this [research project],” Mr. Davis added. “Even though they [the Ohio EPA] weren’t defendants, they were getting heat from the U.S. EPA.”

Lake Erie has more than 200 types of algae. Most of it — especially that known as diatoms — are healthy and contribute to the food chain.

Even small blooms of the bad stuff — microcystis and other forms of cyanobacteria classified as harmful algal blooms because of the toxins they produce — are considered normal.

But the report by Mr. Davis and others shows five of the last six years have produced blooms well beyond what scientists believe is acceptable, and that Lake Erie has had unacceptably large and toxic blooms two-thirds of the time since 2002.

Based on the formula, the absolute earliest Lake Erie could have its impairment declaration scientifically justified for removal would be 2023, Mr. Davis said.

“But that would be highly unlikely,” he added.

Many conference attendees who have followed algae issues for years were annoyed it took the Kasich administration so long to come around but weren’t surprised to learn the science shows the declaration should have been made eight years sooner.


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