Vt. committee, agency still at odds on rad rules

MONTPELIER, Vt. - A legislative panel has scolded the state Health Department for changing the way it measures radiation emitted by the Vermont Yankee nuclear plant without going through a formal process for adopting new regulatory rules.

"It continues to be our determination that the department is in violation of the Administrative Procedure Act by having amended this rule without going through the required public rule-making process," said a letter the Legislative Committee on Administrative Rules voted to send to the Health Department.

Without the changes, said the letter written by Rep. Richard Marek, D-Newfane, and the committee's chairman, Vermont Yankee would have been found in violation of state radiation limits in 2004, 2006 and 2007.

"Under the department's position, future violations at similar levels also would be permitted without any sanction," Marek wrote.

At issue is the radiation measured at the border of Vermont Yankee's property in Vernon. That radiation has been on the increase in recent years because the plant has boosted its power output and has added new storage for highly radioactive waste.

The Health Department, Entergy Corp.-owned Vermont Yankee and the plant's defenders say the state limit for radiation at the plant fence line — 20 millirems a year — is one-fifth the limit set by the federal Nuclear Regulatory Commission and is the toughest in the country.

But committee members and other critics point to two factors making the limit easier for Vermont Yankee to achieve. One is a 25 percent margin of error in measuring radiation, meaning that the radiation can grow to 25 millirems and still be considered within the limit.

The other is a "dose conversion factor," in which one unit of radiation in the air — called a Roentgen — is said to be equal to 0.6 units absorbed into human tissue. That standard was adopted after Vermont Yankee was found to have violated its radiation limit in the last quarter of 2004, the plant disputed that finding and the state hired a consultant to study the issue.

Committee members said they didn't have the scientific expertise to judge whether the margin of error or conversion factor constituted the right approach to measuring radiation. But they maintain the conversion factor marks a change in the way the Health Department regulates Vermont Yankee, and must come under the Administrative Procedure Act.

Marek said the Legislature in its upcoming session may pass a bill requiring the Health Department to change course and submit its changes for review under the Administrative Procedure Act. The retired lawyer said the department also runs the risk of a lawsuit over the issue.

Marek said he was worried that the regulatory change was the result of pressure from the Douglas administration, and that the Health Department didn't want to go through the rules process for fear of stirring up controversy over the radiation emitted by Vermont's lone reactor.

"I think the administration clearly has an agenda regarding Vermont Yankee, and the Department of Health reports up to the administration," Marek said in an interview after Wednesday's meeting. "You can draw from that any conclusion you want."

Health Commissioner Wendy Davis defended her department's actions in an interview Wednesday.

"There is nothing political about fulfilling the obligation about ensuring public safety with respect to possible radiation exposure from the plant," she said. "That is the obligation we are charged with and we take it very seriously."

She argued that the change in radiation measurement methods did not mark a change in the rule, but merely a change in the way the department interprets and implements the rule. To go through the rules process would divert the department from its other duties, Davis added. "We have limited resources and would like to deploy them in the most effective way possible."

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