Published July 7, 2011 in the Times Argus
Attorney General William Sorrell holds a news conference on Wednesday.
Photo: Toby Talbot AP Photo
Sorrell: No ‘smoking gun’ in Entergy case
MONTPELIER — Vermont Attorney General William Sorrell will not file criminal charges against the company that operates the Vermont Yankee nuclear plant or any of its employees who gave false information to state regulators while under oath in 2009.
Sorrell said that despite an 18-month criminal probe of Entergy Nuclear, his office could not find “smoking-gun evidence” to prove beyond a reasonable doubt that Entergy officials committed perjury or other crimes when they told the Public Service Board in May 2009 the nuclear plant had no underground pipes carrying radioactive materials.
The discovery in January 2010 of tritium leaks at the company’s Vernon plant proved the statements about underground pipes were untrue.
Prosecutors conducted dozens of interviews and reviewed tens of thousands of documents, and some of those records demonstrated “in our view that Entergy and certain of its personnel have acted at best in an untrustworthy manner,” Sorrell said at a news conference Wednesday. “However, we lack the smoking-gun evidence to prove to our satisfaction, let alone that of 12 Vermont jurors, that this untrustworthy behavior was criminal.”
If new information surfaces, prosecutors could revive the investigation, but Sorrell said that’s unlikely.
Sorrell’s investigation found that Entergy Nuclear personnel in 2008 and 2009 repeatedly told the state and its consultants — who were conducting an audit and reliability assessment — that the plant had no underground piping system carrying radionuclides.
There was also evidence that Entergy personnel knew this was untrue and didn’t correct the record, according to Sorrell.
But to rise to the level of perjury, the statements had to be made under oath by people who were knowingly giving false information.
That’s why the criminal investigation centered on statements by Jay Thayer, the former vice president of operations for Entergy Nuclear, and Michael Colomb, the site vice president of the Vernon plant, who testified under oath in 2009 there were no underground pipes.
Though their statements were false, Sorrell said, his office would be unable to prove Thayer and Colomb intentionally misled regulators or that the company was engaged in a conspiracy.
“Smoking-gun evidence would be if we could find some sort of a conspiracy to mislead, not a single witness, but that there was an overall intention within the organization to mislead the state and the public,” said Sorrell, “and we found more incompetence than malevolence.”
The investigation turned up a “warm gun” rather than a smoking gun, Sorrell said, but the evidence didn’t even come close to proving perjury beyond a reasonable doubt and may not have even proven probable cause, the threshold prosecutors need to file the charge.
Thayer, who no longer holds his position at Entergy Nuclear, told the quasi-judicial Public Service Board in 2009 that the plant did have some underground pipes that were once used but that he believed they were no longer in service.
“The reason I hesitate is I don’t believe there is active piping in service today carrying radionuclides underground,” Thayer said in his testimony. “There was a line that was contaminated, radioactive liquid, which did leak back in the period before we purchased the plant. That line was abandoned. That is the reason for some of the contaminated soil on site. But I don’t — I can do some research on that and get back to you, but I don’t believe there are active piping systems underground containing contaminated fluids today.”
Despite saying he would return with an answer for regulators, when Thayer testified the next day, he did not bring up the subject.
Thayer later apologized but also denied that he tried to mislead regulators. He has said he had incorrect information and then failed to correct the record.
Sorrell pointed out that Thayer used the word “believe” during his testimony, and prosecutors could not find evidence that he did not believe this.
“A statement of opinion — ‘I think something’ — unless we can prove something beyond a reasonable doubt that the person did not in fact think that or that was not his or her opinion, that is not perjury,” said Sorrell.
Four days after Thayer’s testimony, Colomb was asked at a Public Service Board hearing whether the facility had underground pipes carrying radioactive liquid.
“You had one question referred to you from Mr. Thayer the other day and I know you weren’t here,” said an attorney for the Vermont Department of Public Service, according to a transcript. “The discussion was about underground piping and possible contamination. He thought you would know the answer, so do you know if there’s any underground piping at Vermont Yankee carrying radionuclides?”
Colomb, who was also under oath, responded: “I believe we had identified one pipe that was underneath the chemistry laboratory that end ... I believe leaked in the past, did contaminate some soil under the building, has since been sealed, and a new line that is not underground was routed.”
Sorrell pointed out that Colomb did not actually answer the question, one of the nuances that mean the statement does not constitute perjury.
There was email sent after Thayer’s testimony that indicated some people in the company knew about underground pipes, but there was no proof Colomb saw the emails, said Sorrell.
In addition, the definition of “underground” is narrower in the nuclear industry than among the general public, said Sorrell. Some pipes at the Vernon plant are below grade, but to be underground by the accepted definition in the nuclear industry the pipes or the cement encasing them would have to be touching dirt, said Sorrell. The different definitions could complicate a perjury prosecution based on statements about underground pipes, said Sorrell.
The discovery in January 2010 that the Vernon plant had the underground pipes created a nasty political climate for Entergy. Just weeks after the revelation of the leak and the underground pipes, the Senate voted not to allow the plant to operate past 2012 when its state permit expires — a vote that still stands.
The end of the criminal investigation closes one chapter in Vermont’s battle with Entergy, but another one is under way.
In April, Entergy sued Vermont to try to keep the plant running past 2012, arguing the state doesn’t have the authority to shut down the plant.
Sorrell said the pending civil case with Entergy had no influence on his decision not to file charges.
“Not one iota,” he said.
Former Gov. Jim Douglas, Gov. Peter Shumlin — who at the time was Senate president pro tempore — and House Speaker Shap Smith called for the criminal investigation in January 2010 after it became clear there were underground pipes.
Sorrell denied that he shied away from filing charges because he feared Entergy and its high-powered attorneys.
“Trust me: I enjoy enforcing our laws,” said Sorrell. “If we had the evidence, we’d be filing charges. Being outgunned has never been an issue that has caused us pause in this matter …”
Sorrell estimated the investigation cost a minimum of $100,000 in personnel and expenses but said it was worth it, given the misinformation from Vermont Yankee and the need to determine whether it was criminal.
“I think it was time very well spent,” Sorrell said.