Southern Company Hides Electric Meter Dangers – Fires the whistle Blower and Hopes not to get Burned

Instead of investigating dangerous reported problems Southern Company COVERS IT UP!

“Smart meters should not be installed on any home, any

where, without a thorough safety investigation.

Manufactured agreed fail rate for the New digital smart meters 0.5%  Actual fail rate 9%!

Meters that Endanger: Shocking Details from a Whistleblower
by A O’Hair ( info [at] stopsmartmeters.org )
Friday Jan 20th, 2012 1:54 PM

Are smart meters just too complex? Are they veritable blackboxes(well, beige) of assorted electronic components, jury-rigged and thrown together in an off-shore factory, and then slapped onto houses without proper safety testing? Sure, we all have electronic devices in the home, but through this particular device passes all the electrical current for the house. That’s a set-up asking for trouble.

From the beginning, smart meters have had problems leading to fires and other electrical dangers. News stories have run all over the U.S. and around the world about installations leading to devastating damage. (Here’s a local SF Bay Area fire we’d like to see more fully investigated.)

A lawsuit made available to us recently detailed just how such faulty equipment could end up attached to the electrical wiring on millions of homes. In Alabama in 2009, a Sensus engineering employee named Don Baker was fired for repeatedly alerting his management to the presence of a multitude of dangerous defects in the smart meter they were manufacturing (model iConA). As he states in the complaint he filed, this whistleblower reported serious flaws in design and functioning that could lead to electrical danger, overheating, and/or fire. In fact, the failure rate of the meters was twenty times higher than it was supposed to be, and the engineer contends that at least two house fires were the result. Sensus meters are used by utilities across the U.S. and in Canada, such as PECO, Alliant Energy, Alabama Power, and NVE.

In May 2010, Mr. Baker filed a complaint [PDF]. The type of suit is called “qui tam”, where an individual alleges harm to his government. This complaint alleges that the manufacturer and the utility companies received federal monies but provided a defective product. The U.S. Attorney’s office in Alabama declined to pursue the case, because the utility said they had not received federal money for the metering project; but the allegations about the dangerous defects in the smart meters made in the complaint have not been refuted or even addressed.

In the complaint Baker relates in detail what makes the meters dangerous, and the allegations are damning—and alarming. A few highlights:

[Meters] may fail dangerously when subjected to a sudden surge of electricity …. Meters found to contain ‘flux’ or loose solder residue …. Calibration equipment not properly designed …. Electric resistor component defective …. Internal temperatures up to 200° Fahrenheit …. Hot socket alarm …. Drastic overheating to the point of catastrophic failure, melting, and burning….

Cutting corners in business and manufacturing is hardly something new; the difference here is just what is at stake: this product is installed in every house in a utility service area, and the electrical current for the house runs through it. Even a half-percent failure rate can result in serious amounts of property damage, or even death, given the total number of “customers”—though this word implies a voluntary acceptance of the product, when in fact installation of smart meters has been very largely involuntary. Truly optional consumer goods actually get more testing than smart meters.

The sort of defects and failures enumerated in this suit might well have been caught with an independent safety-certification process such as Underwriters’ Laboratories (UL). But these Sensus iConA smart meters, and every other type of smart meter, have never been subjected to such testing.

The suit states: “Mr. Baker has direct personal knowledge that Sensus and Southern Company [the utility] have installed approximately one million iConA meters in Alabama homes with knowledge that the meters are seriously defective and pose a substantial fire hazard and that at least two Alabama homes have burned as a result…. [They] were well aware that the iConA was defective and the entire project flawed.” [Emphasis ours.]

Baker submitted the information he had to the Office of the U.S. Attorney and the FBI in Feb 2010. He contends that the defendants named in the suit, Sensus, Southern Company, and Alabama Power, “perpetuated a fraudulent conspiracy” to obtain $165 million from federal stimulus funding.

These meters were never tested—for either for safety or performance—instead they went straight to out for installation. Then Sensus altered the components and design—again without safety testing. Only one percent of the Sensus meters were tested—for accuracy only—but never on a house while connected to the grid.

“It quickly became apparent that the meters were fundamentally unsound.” Baker states in the filing. “[The contract] carried an acceptable failure rate of 0.5%,” but in the first year, the meters were “failing at a rate of 9.0% per year.” Baker made reports to Sensus management about quality and safety issues, but he was ignored and eventually fired.

What was technically wrong with the smart meters that Sensus was producing? The suit alleges four categories of defects and failures: 1) Electrical Fast Transient Failures; 2) Flux Contamination and Inaccuracy Issues; 3) Faulty Components; and 4) “Hot Meters.” These technical issues are explained below.

The suit goes on to make three charges against the defendants: 1) False Claims; 2) Conspiracy; and 3) Suppression, Fraud, and Deceit. These legal issues are explained in more detail below.

Corporate recklessness—and lack of regulation to curb it—has remained a core issue in the smart meter debacle. From the Silver Springs Network antenna which increases the power of the radio over FCC limits (see page 14 of this CPUC doc), to arcing problems due to unprofessional installation, to multiple FCC violations, to the lack of any independent safety testingit is clear that if there had been effective government regulation, it could have changed the face of this “deployment” dramatically.

If you don’t like the idea of more government regulation, then how about consumer choice? If individual customers could choose between utilities, even choose their own meter—again, the landscape would also look very, very different.

But instead we are saddled with corporate utility monopolies, aided by government collusion, which adds up to a poisonous combination—whatever your political beliefs might be. It is an arrangement designed to enrich corporations, with impunity.

Why isn’t the public up in arms about these risks of smart-meter fires and explosions? There have no comprehensive investigations by major media. Early in 2011, a major news station in the SF Bay Area was doing work on this. They interviewed us several times as part of an investigation into smart-meter fires. What happened? The story never aired, and calls to the investigative reporters were not returned.

Without coverage in the mainstream media, people will be left to find out about this issue through social networks or independent media–or worse, suffer their own fire or property damage from the meter.

This is yet another reason why the proposed opt-out here in CA is—even with analogs—incomplete and inadequate. Given the growing evidence of fire risk and safety, this is not a device we should be forced to pay to avoid. Smart meters should not be installed on any home, any where, without a thorough safety investigation.

_____________________________________________________

Technical details from the lawsuit about Sensus meter defects:

1) Electrical Fast Transient Failures: The manufacturer and the utility were both aware, the suit alleges, that the smart meters (iConA) were unsafe and could fail dangerous when subjected to a power surge. [This was certainly evident for another make of smart meter, the one installed in Palo Alto last October.] One critical test was skipped for the Sensus meters, the Electrcial Fast Transient Test (EFT). When this test was performed on a sample of the iConA Sensus meters, they all failed. This was after over 80,000 meters were already installed.

2) Flux Contamination and Inaccuracy Issues. The complaint states that production of the iConA meters was sloppy. Sensus performed two investigations and found 130,000 meters contained loose solder residue called “flux.” They also found that equipment used by the manufacturer to calibrate was not properly designed, calling into question the accuracy of the meters. This was after 400,000 meters were installed—non of which were recalled for testing. Baker himself has investigated over-reporting meters, and found individual meters giving readings seven times the actual electrical usage.

3) Faulty Components. Baker alleges Sensus and the utilities had reason to suspect that some components that were going into the iConA meter were faulty, with very high failure rates. Well into the delivery process, it was found that an electrical resistor was defective on at least 85,000 meters. Over 170,000 meters were also found to contain another faulty component made by Epson.

4) “Hot Meters.” These Sensus meters, the complaint alleges, posed a risk of injury or death. Sensus knew that 19,000 installed meters were reporting a “hot socket alarm”—that is, the internal temperature was getting over 200°F. Sensus received reports of overheating to the point of melting and burning. The plaintiff Baker documented himself meters reduced to lumps of blackened plastic, while the company insisted a meter couldn’t melt at less than 500°F.

Ultimately it was bringing to the attention of his supervisors a burned meter that resulted in a house fire that ended Don Bakers career at Sensus. Instead of conducting an investigation, they fired him.

======

Legal details alleged in the complaint:

1) False Claims. The defendant in the suit, the plaintiff alleges, presented false or fraudulent claims to the U.S. government that their smart grid project was eligible for ARRA funds when it was not. The equipment was defective and unfit.

2) Conspiracy. The defendants acted with the intent to defraud the U.S. by submitting false records to obtain the funds.

3) Suppression, Fraud, and Deceit. The defendants misrepresented or suppressed the fact that the smart meter that formed the basis of their smart grid architecture was dangerously defective.

=======

Alabama house fires possibly resulting from defective smart meters:

Family Blames House Fire On Georgia Power Meter. http://www2.wjbf.com/news/2011/jul/06/appling-family-blames-house-fire-georgia-power-met-ar-2074493/ “Sparks started flying from the TV and power box.”

Atlanta house fire, due to power meter; double blow to Haitian family. http://www.wsbtv.com/videos/news/fire-deals-double-blow-to-haiti-family-in-atlanta/vCRzm/ “Faulty power meter sparked devastating house fire–twice.”

Alabama woman says smart meter is fire hazard. http://www.wset.com/Global/story.asp?S=13487932; The letter the city government wrote to Sensus [PDF].

Related Press: 2010 Article from Cleburne News (AL), which has since been scrubbed from their website: http://stopsmartmeters.org/wp-content/uploads/2012/01/CleburneNews-smart-meters-Feb2010.pdf

2010 Article from Montgomery Advertiser (AL) which has been since scrubbed from their website: http://stopsmartmeters.org/wp-content/uploads/2012/01/Montgomery-AL-smart-meters-Feb2010.pdf “The meter was … replaced five days before their double-wide burned to the ground…”

2009 Article from Georgia new site, since removed: http://stopsmartmeters.org/wp-content/uploads/2012/01/Electrical-fires-Georgia-Feb2009.pdf “…Steady stream of complaints about the meters since the devices went into general use ….The firemen
told him they are keeping records and turning in their findings to the electric company.”

Article from Atlanta news site, since scrubbed from website: http://stopsmartmeters.org/wp-content/uploads/2012/01/Atlanta-fire-smart-meter-Jan2010.pdf “A power surge … After firefighters put out the blaze, they said it reignited again hours later.”

Southern Company hopes you get burned not them.

Trial Over Removal of Spent Nuclear Fuel SYSTEM FUELS, INC., SYSTEM ENERGY RESOURCES, AND SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION, V. UNITED STATES

SYSTEM FUELS INC. v. U.S.

SYSTEM FUELS, INC., SYSTEM ENERGY RESOURCES, AND SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Cross Appellant.

Nos. 2010-5116, 2010-5117

United States Court of Appeals, Federal Circuit.

Decided: January 19, 2012.

ALEX D. TOMASZCZUK, Pillsbury Winthrop Shaw Pittman, LLP, of McLean, Virginia, argued for plaintiffs-appellants. With him on the brief were JAY E. SILBERG, of Washington, DC; and EVAN D. WESSER, of McLean, Virginia. Of counsel on the brief was L. JAGER SMITH, JR., Wise Carter Child & Caraway, P.A., of Jackson, Mississippi.
ALAN J. LO RE, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-cross appellant. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, HAROLD D. LESTER, JR., Assistant Director, SHARON A. SNYDER, Trial Attorney, MARIAN E. SULLIVAN and ANDREW P. AVERBACH, Senior Trial Counsel; and SCOTT R. DAMELIN, Trial Attorney. Of counsel on the brief was JANE K. TAYLOR, Attorney, Office of General Counsel, United States Department of Energy, of Washington, DC.
Before RADER, NEWMAN and DYK, Circuit Judges.
Opinion for the court filed by Chief Judge RADER. Opinion concurring-in-part, dissenting-in-part filed by Circuit Judge NEWMAN.

 

 RADER, Chief Judge.

On summary judgment, the United States Court of Federal Claims determined that the United States breached its contract with Plaintiffs-Appellants System Fuels, Inc., System Energy Resources, and South Mississippi Electric Power Association (collectively “Plaintiffs”) for the removal of spent nuclear fuel. Sys. Fuels, Inc. v. United States, 66 Fed. Cl. 722, 732-33 (2005) (“SFI I“). The trial court also granted summary judgment in favor of the Government regarding the implied covenant of good faith and fair dealing. Id. at 735. The trial court set damages for the breach at $10,014,114 as well as the cost of borrowed funds for financing the construction of the dry fuel storage project. Sys. Fuels, Inc. v. United States, 78 Fed. Cl. 769, 809 (2007) (“SFI II“). On reconsideration, the trial court reduced damages to $9,735,634 and denied the cost of borrowed funds. Sys. Fuels, Inc. v. United States, 92 Fed. Cl. 101, 114 (2010) (“SFI III“). This court affirms the trial court’s denial of borrowing costs and reverses the denial of overhead costs. On damages, this court affirms the trial court’s award.

I.

In 1983, Congress enacted the Nuclear Waste Policy Act of 1982 (“NWPA”), Pub. L. No. 97-425, 96 Stat. 2201 (codified at 42 U.S.C. §§ 10101-10270 (2006)), to provide for the Government’s collection and disposal of spent nuclear fuel (“SNF“) and high-level radioactive waste (“HLW“). The NWPA authorized the Department of Energy (“DOE”) to contract with the owners of SNF and HLW for disposal. 42 U.S.C. § 10222(a)(1). In return for the payment of fees into the Nuclear Waste Fund, the Standard Contract provided that the DOE would begin to dispose of the SNF and HLW “not later than January 31, 1998.” 42 U.S.C. § 10222(a)(5)(B); 10 C.F.R. § 961.11 (2011). The Standard Contract provides that “[t]he Purchaser shall arrange for, and provide, all preparation, packaging, required inspections, and loading activities necessary for the transportation of SNF and/or HLW to the DOE facility.” 10 C.F.R. § 961.11 (Article IV.A.2). Because collection and disposal of SNF and HLW did not begin on January 31, 1998, this court held in Northern States Power Co. v. United States, 224 F.3d 1361, 1367 (Fed. Cir. 2000), and Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336, 1343 (Fed. Cir. 2000), that the DOE had breached the Standard Contract with the nuclear energy industry. This case examines another chapter in the lengthy search for remedies for breach of the Standard Contract.

On June 30, 1983, System Fuels, Inc. entered into the DOE’s Standard Contract on behalf of itself, System Energy Resources, and South Mississippi Power Association. SFI I, 66 Fed. Cl. at 725. System Energy Resources and South Mississippi Power Association own Grand Gulf Nuclear Station (“Grand Gulf”). System Fuels, Inc. served as the purchaser under the Standard Contract. Id. The Nuclear Regulatory Commission issued a license to System Fuels, Inc. and South Mississippi Power Association to operate Unit 1 of Grand Gulf, whose SNF is stored in a “wet pool.” Id. In 2002, Plaintiffs began preparations to construct an Independent Spent Fuel Storage Installation (“ISFSI”) capable of holding additional dry storage containers of SNF until DOE complied with its removal obligations. Plaintiffs anticipated that the “wet pool” would reach capacity in 2007. Id.; SFI II, 78 Fed. Cl. at 783. The record shows that System Energy Resources and South Mississippi Power Association have paid almost $148 million into the Nuclear Waste Fund in accordance with the terms of the applicable fee schedule of the Standard Contract. The Government has not begun performing its duties and responsibilities under the Standard Contract. SFI I, 66 Fed. Cl. at 725, 730. As of March 4, 2005, Plaintiffs alleged that they had spent approximately $4.75 million to construct the ISFSI. Id. at 732-33. After this court rendered its decision in Indiana Michigan Power Co. v. United States, 422 F.3d 1369 (Fed. Cir. 2005), Plaintiffs amended the complaint to allege that they had incurred $12,178,000 in costs to plan and construct the ISFSI at Grand Gulf to mitigate breach damages. SFI II, 78 Fed. Cl. at 771.

Every 18 months, the reactor at Grand Gulf shuts down to facilitate removal of fuel assemblies, which are then placed in two onsite storage facilities for 20 to 25 days during routine maintenance. Id. at 779. In an effort to explore their options for dry fuel storage, Plaintiffs sought guidance from an engineering services firm in the commercial nuclear industry. This firm recommended the “best short-term option for increasing spent fuel storage capacity at Grand Gulf was to recover cells currently inaccessible in the existing [onsite storage facilities].” Id. at 780. Plaintiffs also contracted with a dry cask storage system company and explored long-term options. Plaintiffs undertook construction of dry fuel storage because the core of the Grand Gulf reactor would reach capacity in 2007, and, by their estimates, the Government would not remove waste until 2022. Id. at 781. As a business practice, Plaintiffs maintain a full core reserve—a practice beyond current federal requirements. Id. at 782. Plaintiffs determined that they could maintain this business practice through 2005 and, with cell recovery efforts, accommodate the SNF and HLW discharges through 2007. Id. at 782-83.

In constructing the ISFSI, Plaintiffs created six categories of capital work operations: spent fuel studies, ISFSI design and construction, cask fabrication facility, dry fuel equipment storage building, ISFSI electrical and security systems, and auxiliary building door modification. Plaintiffs recorded and tracked costs associated with the dry fuel storage facility. Id. at 783. Plaintiffs sought damages for the capital work operations, totaling $10,591,000, and cost of capital to finance these operations, totaling $1,587,000. Id. at 783, 785.

The trial court held an eight-day trial on damages. Id. at 773 n.2. The trial court did not specify an acceptance rate of spent fuel but determined that Plaintiffs should be awarded over $10,014,114 in mitigation damages for their capital work operations. Id. at 794, 809. The award did not include the cost of borrowed funds because, even though the trial court determined that Plaintiffs were entitled to recover this amount, it needed clarification and sought additional expert testimony before making a final decision concerning mitigation damages. Id. at 809-10.

The trial court revisited its causation analysis after this court rendered the following decisions: Yankee Atomic Electric Co. v. United States, 536 F.3d 1268 (Fed. Cir. 2008); Pacific Gas & Electric Co. v. United States, 536 F.3d 1282 (Fed. Cir. 2008); Sacramento Municipal Utility District v. United States, 293 Fed. Appx. 766 (Fed. Cir. 2008). SFI III, 92 Fed. Cl. at 102. The trial court held evidentiary hearings concerning causation and addressed the claim for the costs of borrowed funds. Id. at 103-05. The trial court reduced the amount of damages previously awarded to Plaintiffs for their “cell recovery efforts” and determined that England v. Contel Advanced Systems, Inc., 384 F.3d 1372, 1379 (Fed. Cir. 2004), barred the grant of an award for the cost of borrowed funds. 92 Fed. Cl. at 108, 111-12.

Plaintiffs appeal the trial court’s refusal to award the cost of borrowed funds and overhead costs as mitigation damages. The Government appeals on the ground that the trial court’s causation analysis did not include a comparison of breach and non-breach worlds under the Standard Contract. This court has jurisdiction under 28 U.S.C. § 1295(a)(3).

II.

This court reviews the factual findings of the United States Court of Federal Claims for clear error, Ind. Mich., 422 F.3d at 1373, including “the general types of damages awarded . . ., their appropriateness . . ., and rates used to calculate them . . .,” Home Sav. of Am. v. United States, 399 F.3d 1341, 1347 (Fed. Cir. 2005). “A finding may be held clearly erroneous when . . . the appellate court is left with a definite and firm conviction that a mistake has been committed.” 422 F.3d at 1373 (quoting In re Mark Indus., 751 F.2d 1219, 1222-23 (Fed. Cir. 1984)). This court reviews the trial court’s legal conclusions without deference. Yankee Atomic, 536 F.3d at 1272. This court provides the trial court with wide discretion in determining an appropriate quantum of damages. Hi-Shear Tech. Corp. v. United States, 356 F.3d 1372, 1382 (Fed. Cir. 2004).

III.

Plaintiffs sought $1,587,000 as damages for the cost of borrowed funds to construct their dry fuel storage facility. SFI II, 78 Fed. Cl. at 785. The trial court stated that its authority to award interest on a claim of damages is governed by the Judiciary and Judicial Procedure Rules of Decision Act, which states that “interest on a claim against the United States shall be allowed in a judgment of the United States Court of Federal Claims only under a contract or Act of Congress expressly providing for payment thereof.” SFI III, 92 Fed. Cl. at 110 (quoting 28 U.S.C. § 2516(a)) (internal citations omitted).

As this court stated in England, “[t]he no-interest rule is an aspect of the basic rule of sovereign immunity.” 384 F.3d at 1379 (citing Library of Cong. v. Shaw, 478 U.S. 310, 315 (1986); Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002)). This no-interest rule denies claims for interest and “interest costs incurred on money borrowed as a result of the government’s breach or delay in payment.” 384 F.3d at 1379 (citing J.D. Hedin Constr. Co. v. United States, 456 F.2d 1315, 1330 (Ct. Cl. 1972); Komatsu Mfg. Co. v. United States, 131 F.Supp. 949, 950 (Ct. Cl. 1955); Ramsey v. United States, 101 F.Supp. 353, 356-57 (Ct. Cl. 1951); Myerle v. United States, 33 Ct. Cl. 1, 25 (1897)).

Although expressing concerns about the policy and uniform application of England, the trial court ultimately applied the rule of that case and denied interest. In Energy Northwest v. United States, issued after the trial court’s judgment in the present case, this court addressed those concerns and reaffirmed England, distinguishing it from cases where the Government has been held liable for interest. 641 F.3d 1300, 1310-12 (Fed. Cir. 2011). England therefore controls this case. Because the trial court properly applied England, this court affirms the trial court’s denial of the cost of borrowed funds.

IV.

Plaintiffs incurred additional overhead costs when managing the six capital work operations. Plaintiffs maintained a separate accounting for overhead costs, consistent with the Generally Accepted Accounting Principles and Federal Energy Regulatory Commission (“FERC”) regulations. The separate accounting, referred to as the “capital suspense loader,” includes the cost of administrative and engineering personnel supporting capital construction projects. J.A. 348-49, 351. These overhead costs consist of two pools: (1) administrative and general costs for personnel at corporate headquarters and (2) nuclear-specific costs for personnel at the Nuclear South headquarters and Grand Gulf site. J.A. 349. The trial court acknowledged that “DOE was aware that Plaintiffs were required to account to FERC for all costs incurred.” SFI II, 78 Fed. Cl. at 791. Originally, the trial court withheld these costs for lack of proof with “reasonable certainty.” Id. at 800. Plaintiffs then provided additional analysis showing that costs associated with the “capital suspense loader” were $497,619. The trial court then offset the overall damages awarded to Plaintiffs by this amount. SFI III, 92 Fed. Cl. at 104-05, 108.

As explained in Indiana Michigan, “[d]amages for a breach of contract are recoverable where: (1) the damages were reasonably foreseeable by the breaching party at the time of contracting; (2) the breach is a substantial causal factor in the damages; and (3) the damages are shown with reasonable certainty.” 422 F.3d at 1373 (citing Energy Capital Corp. v. United States, 302 F.3d 1314, 1320 (Fed. Cir. 2002)). In Carolina Power & Light Co. v. United States, this court affirmed the trial court’s awarding of overhead costs to a utility whose “internal accounting system uses specific codes to allocate a portion of [the overhead expenses] to particular projects . . . .” 573 F.3d 1271, 1276-77 (Fed. Cir. 2009). This court has previously determined that “the amount of damages need not be `ascertainable with absolute exactness or mathematical precision,’ [but that] recovery for speculative damages is precluded.” Ind. Mich., 422 F.3d at 1373 (quoting San Carlos Irrigation & Drainage Dist. v. United States, 111 F.3d 1557, 1563 (Fed. Cir. 1997)). In Energy Northwest, this court found that “mitigation activities generally were supported by certain overhead services that Energy Northwest provided for the benefit of all its operations (not only its mitigation activities).” 641 F.3d at 1309. This court made such a determination based on testimony “estimating the portion of . . . overhead costs fairly allocated to support . . . the mitigation via generally accepted accounting practices . . .” Id.

Thus, Plaintiffs may recover overhead costs incurred for mitigation-related work. The record shows that Plaintiffs used an internal accounting system with particular codes for the “capital suspense loader.” Further, the record shows that the internal accounting system allocates on a monthly basis the overhead associated with the pool and charges accounts for the appropriate project. J.A. 348-50. Thus, Plaintiffs used accounting procedures “as mandated by FERC,” J.A. 349, and “consistent with Generally Accepted Accounting Principles,” J.A. 351. The trial court clearly erred in finding that these accounting records did not “demonstrate the effect of the mitigation project on the capital pools entitlement with `reasonable particularity.'”

Therefore, because the record fully supports Plaintiffs’ proof of overhead costs, this court reverses the trial court’s grant of offset of damages for the “capital suspense loader” overhead costs.

V.

In Yankee Atomic, this court determined that a SNF utility company “had the burden to provide the contractual acceptance rate and apply that rate before suggesting that the Government’s breach was a substantial factor in causing the [Plaintiffs’] claimed expenses.” 536 F.3d at 1273. This court went further to state that “[w]ithout record evidence about the [utility’s] condition with full Government performance, the Court of Federal Claims could not perform the necessary comparison between the breach and non-breach worlds and thus could not accurately assess the [Plaintiffs’] damages.” Id. Plaintiffs bear the burden to establish the alleged mitigation costs were caused by the breach. Energy Nw. v. United States, 641 F.3d 1300, 1307 (Fed. Cir. 2011). “[A] defendant must move forward by pointing out the costs it believes the plaintiff avoided because of its breach,” but “with respect to both claimed costs and avoided costs, plaintiffs bear the burden of persuasion.” S. Nuclear Operating Co. v. United States, 637 F.3d 1297, 1304 (Fed. Cir. 2011); see also Boston Edison Co. v. United States, 658 F.3d 1361, 1369 (Fed. Cir. 2011) (the Government “may be responsible for affirmatively pointing out costs that were avoided” due to the breach, but once the Government has identified the plaintiff’s avoided costs, “the plaintiff must incorporate them into a plausible model of the damages”); Energy Nw., 641 F.3d at 1308 n.5 (“Once the defendant has properly articulated an offset, the burden shifts to the plaintiff to incorporate those saved costs into its formulation of a plausible but-for world.” (internal quotation marks omitted)). While in some places the trial court, without the benefit of our most recent cases, inaccurately placed the burden of proof on the Government, we do not think that this error affected the result.

In SFI II, the trial court determined that Plaintiffs’ mitigation was foreseeable:

[T]he record contains clear and convincing evidence that on June 30, 1983, it was “foreseeable” to DOE that, if performance could not be commenced by January 31, 1998, Plaintiffs would have to make interim arrangements to store SNF and HLW and DOE could have foreseen that such interim arrangements could entail the need to plan, design, and construct dry fuel storage and the [sic] incur costs to borrow funds to finance those mitigation efforts.

78 Fed. Cl. at 791. Additionally, the trial court determined that the costs of modification of the auxiliary building were “incurred to mitigate the Government’s partial breach.” Id. at 801. The trial court analyzed the costs associated with the auxiliary building modifications, procedures and programs to use the casks and dose assessment, implementation of the transfer and haul paths for the casks, and scaffolding. Id. at 800-06. The trial court’s analysis was based on the costs included in Plaintiffs’ claims for damages, offsets asserted by the Government, and comparison of “the real world versus the costs of the modifications in the non-breach world.” Id. at 800. The trial court determined that Plaintiffs’ costs were reasonable for several of the auxiliary building modifications and implementation of the transfer and haul paths for the casks. Id. at 801-04, 805. In contrast, the trial court awarded offsets for (i) the procedures and programs to use the casks and dose assessment and (ii) a portion of the scaffolding costs. Id. at 804, 805-06.

In SFI III, the trial court weighed evidence concerning causation of the contested damages and application of the 1987 Annual Capacity Report Rate. 92 Fed. Cl. at 103-04. The trial court heard testimony concerning Grand Gulf in breach and non-breach worlds and “determine[d] that [Plaintiffs] would have performed the cell recovery project even if DOE accepted SNF at Grand Gulf in 2006” and offset Plaintiffs’ award for damages based on the “appropriate `related’ costs.” Id. at 104. The trial court stated that Plaintiffs “advised the court that three adjustments should be made to the prior costs claimed,” which related to offsetting costs associated with Plaintiffs’ claims for “payroll loader,” “capital suspense loader,” and “equipment purchased, sequence design, and dose assessment.” Id. at 104-05.

The trial court also weighed evidence regarding the “cell recovery effort.” After comparing the breach and non-breach worlds, the trial court determined that Plaintiffs were “not entitled to include[ ] $184,208 for the cell recovery effort as damages.” Id. at 105-06. The trial court then applied this court’s holding in Yankee Atomic, 536 F.3d at 1268, and determined that the “reasonable foreseeability element was satisfied” and “the necessity to proceed with dry fuel storage at Grand Gulf . . . was caused by both the partial breach and DOE’s inability to guarantee the commencement of performance by 2005, when the spent fuel pool would reach capacity.” SFI III, 92 Fed. Cl. at 107. The trial court discredited Plaintiffs’ expert testimony regarding performance in a non-breach world because the expert was “not qualified to testify about nuclear power plant operations.” Id. at 108. The trial court offset Plaintiffs’ damages by $184,208 and awarded Plaintiffs $9,735,634 in nominal damages because the trial court determined that Plaintiffs did not meet their burden to prove that Plaintiffs would not have engaged in “cell recovery efforts” but for the Government’s breach. Id. at 108.

Review of the record shows that the trial court’s damages analysis in SFI II included comparison between breach and non-breach worlds, and offsets were awarded where appropriate. In SFI III, the record confirms the trial court’s application of the 1987 Annual Capacity Report Rate and also applicable additional adjustments. The record evidence further supports the trial court’s comparison between the breach and non-breach worlds for the assessment of damages. This court discerns no error in these determinations. Thus, the trial court accurately addressed causation as set forth by Yankee Atomic and applied offsets as necessary. This court affirms the trial court’s causation analysis and its revised nominal damages award.

VI.

Because the trial court properly adhered to the decision of England, this court affirms the denial of Plaintiffs’ claim for the cost of borrowed funds. This court reverses the trial court’s denial of overhead costs. This court affirms the trial court’s causation analysis and revised award of nominal damages.

AFFIRMED-IN-PART AND REVERSED-IN-PART.

COSTS

Each party shall bear its own costs.

NEWMAN, Circuit Judge, concurring in part, dissenting in part.

In this arena of varied Federal Circuit pronouncements on diverse facts, the court now carves an exception into the rule that damages due to breach of contract shall render the injured party monetarily whole. The rule, applicable to the government as to all contracting entities, is that when the non-breaching party is required to incur expenditures in order to mitigate the consequences of breach, the cost of those expenditures is compensable as damages. That cost of mitigation is not “interest on a claim,” but a component of damages. Thus the “no-interest rule” is inapplicable. I respectfully dissent from the portion of the court’s decision that denies recovery of such damages.

DISCUSSION

Analytical care is required to avoid blurring the distinction between the cost of money expended to mitigate a breach and interest awarded on a judgment for damages. The “non-interest” statute is directed to interest on an adjudicated claim:

28 U.S.C. §2516. Interest on claims and judgments

(a) Interest on a claim against the United States shall be allowed in a judgment of the United States Court of Federal Claims only under a contract or Act of Congress expressly providing for payment thereof.

This statute does not apply to the System Fuels situation. System Fuels incurred capital costs to construct an Independent Spent Fuel Storage Installation, a facility that was required to be constructed in view of the government’s partial breach of the Standard Contract for Disposal of Spent Nuclear Fuel and/or High-Level Radioactive Waste. “All capital raised by a corporation has a cost . . . .” LaSalle Talman Bank, F.S.B. v. United States, 317 F.3d 1363, 1375 (Fed. Cir. 2003). The Court of Federal Claims stated that the record establishes that System Fuels incurred $1,587,000 as cost of the capital expended to mitigate this breach.1 This cost is not “[i]nterest on a claim . . . in a judgment,” and denial of recovery of this cost contravenes the principle that “[t]he remedy for breach of contract is damages sufficient to place the injured party in as good a position as it would have been had the breaching party fully performed.” Indiana Michigan Power Co. v. United States, 422 F.3d 1369, 1373 (Fed. Cir. 2005). System Fuels’ cost of the capital required to mitigate the government’s breach is substantive damages, not interest on a claim.

This distinction has long been recognized. In Library of Congress v. Shaw, 478 U.S. 310, 314 (1986), the Court explained that “interest is an element of damages separate from damages on the substantive claim.” In Shaw the Court denied the enlargement in Title VII attorney fees due to delay in payment of the fees; the Court did not state a rule about costs of capital. Precedent well illustrates that the “no-interest rule” is not a bar to substantive damages. E.g., Peoria Tribe of Indians of Okl. v. United States, 390 U.S. 468, 471, 473 (1968) (rejecting the government’s invocation of the no-interest rule, and holding the government liable “for its failure to invest the proceeds that would have been received had the United States not violated the treaty”); Larson v. United States, 274 F.3d 643, 646 (1st Cir. 2001) (explaining that the award by the United States of investment proceeds on seized funds in United States v. Kingsley, 851 F.2d 16 (1st Cir. 1988) was not an award of prejudgment interest because “the award was in the form of damages directly caused by” the government’s breach of a plea agreement).

Recognition that damages include the cost of the money expended in mitigation is exemplified in the FIRREA cases, e.g., Bluebonnet Sav. Bank, F.S.B. v. United States, 266 F.3d 1348, 1357 (Fed. Cir. 2001) (“the increased financing costs” represented in the Economic Benefits Agreement are recoverable as damages); LaSalle Talman, 317 F.3d at 1374-75 (damages can include “the cost of capital”); Citizen Fed. Bank v. United States, 474 F.3d 1314, 1320 (Fed. Cir. 2007) (damages include the “expenses it incurred in replacing its regulatory capital after FIRREA had precluded thrifts from using regulatory goodwill or subordinated debt as regulatory capital”). The analogy is apt, for here System Fuels expended capital to provide storage facilities after the government breached its contract to store the spent fuel.

“Government liability in contract is viewed as perhaps `the widest and most unequivocal waiver of federal immunity from suit.'” United States v. Mitchell, 463 U.S. 206, 215 (1983) (quoting Developments in the Law — Remedies Against the United States and Its Officials, 70 Harv. L. Rev. 827, 876 (1957)); see United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 32 (1915) (the Tucker Act is a “great act of justice”).

Law and precedent establish government liability for the cost of mitigation, where government breach requires expenditures in mitigation. In Mobil Oil Exploration & Producing Se., Inc. v. United States, 530 U.S. 604, 607-08 (2000) the Court reinforced that “[w]hen the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals,” quoting United States v. Winstar Corp., 518 U.S. 839, 895 (1996) (plurality opinion). This court in Indiana Michigan applied “the general principle is that all losses, however described, are recoverable.” 422 F.3d at 1373 (quoting Restatement (Second) of Contracts § 347 cmt. c (1981)). The Restatement explains that “the injured party is entitled to recover for all loss actually suffered. . . . includ[ing] costs incurred in a reasonable effort, whether successful or not, to avoid loss.” §347 cmt. c.

The government’s argument that recovery of mitigation costs is precluded by its reinterpreted “no-interest rule” is as inappropriate as it is incorrect, and should be rejected by the court, not adopted and enlarged. As stated in Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955), the court is not a “self-constituted guardian of the Treasury.” My colleagues err in holding that the cost of mitigation of governmental breach of contract cannot include the cost of the money expended in mitigation. I respectfully dissent.


Southern Company (NYSE: SO) Downgraded Again

Southern Company Services

Image via Wikipedia

Southern Co (SO) Shares Downgraded to a “Average” Rating by Caris & Co. Analysts

 

Posted by on Jan 3rd, 2012 // No Comments

http://localizedusa.com/

Southern Co (NYSE: SO) was downgraded by equities research analysts at Caris & Co. to an “average” rating in a research note issued to investors on Tuesday.

Separately, analysts at Wells Fargo & Co. (NYSE: WFC) downgraded shares of Southern Co from an “outperform” rating to a “market perform” rating in a research note to investors on Tuesday. Analysts at Argus downgraded shares of Southern Co from a “buy” rating to a “hold” rating in a research note to investors on Tuesday, December 13rd. Also, analysts at Macquarie downgraded shares of Southern Co from an “outperform” rating to a “neutral” rating in a research note to investors on Monday, December 12nd.

The Southern Company (Southern Company) owns all of the outstanding common stock of Alabama Power, Georgia Power, Gulf Power, and Mississippi Power, each of which is an operating public utility company. The traditional operating companies supply electric service in the states of Alabama, Georgia, Florida, and Mississippi. In addition, Southern Company owns all of the common stock of Southern Power, which is also an operating public utility company. Southern Power constructs, acquires, owns, and manages generation assets and sells electricity at market-based rates in the wholesale market. Southern Company also owns all of the outstanding common stock or membership interests of SouthernLINC Wireless, Southern Nuclear, SCS, Southern Holdings, Southern Renewable Energy, and other direct and indirect subsidiaries. SouthernLINC Wireless provides digital wireless communications for use by Southern Company and its subsidiary companies.

Shares of Southern Co traded down 1.17% during mid-day trading on Tuesday, hitting $45.75. Southern Co has a 52 week low of $35.73 and a 52 week high of $46.69. The stock’s 50-day moving average is $44.28 and its 200-day moving average is $42.01. The company has a market cap of $39.433 billion and a price-to-earnings ratio of 18.94.  HERE

SEISMIC ACTIVITY INDUCED BY THE INJECTION OF CO2 IN DEEP SALINE AQUIFERS

Ohio earthquake has brought more uncertainty to the Mississippi CO2 sequestration, the underground storage of CO2. When will the public demand answers and action.   Keep in mind that CO2 sequestration was initially developed as a result of United Nations meetings, when it was thought that CO2 was a poisonous gas that needed to be contained to prevent the end  of Earth and all its inhabitants due to global warming cooking us all.  We now know that the science behind the whack-o global warming scare was falsified  and a new group of independent scientist with credibility have demonstrated just the opposite. HERE  THERE IS NO GLOBAL WARMING CAUSED BY MAN.

ISSUES RELATED TO SEISMIC ACTIVITY INDUCED BY THE INJECTION
OF CO2 IN DEEP SALINE AQUIFERS

Abstract
Case studies, theory, regulation, and special considerations regarding the disposal of carbon
dioxide (CO2) into deep saline aquifers were investigated to assess the potential for induced
seismic activity. Formations capable of accepting large volumes of CO2 make deep well injection
of CO2 an attractive option. While seismic implications must be considered for injection
facilities, induced seismic activity may be prevented through proper siting, installation, operation,
and monitoring. Instances of induced seismic activity have been documented at hazardous waste
disposal wells, oil fields, and other sites. Induced seismic activity usually occurs along
previously faulted rocks and may be investigated by analyzing the stress conditions at depth.
Seismic events are unlikely to occur due to injection in porous rocks unless very high injection
pressures cause hydraulic fracturing. Injection wells in the United States are regulated through
the Underground Injection Control (UIC) program. UIC guidance requires an injection facility to
perform extensive characterization, testing, and monitoring. Special considerations related to the
properties of CO2 may have seismic ramifications to a deep well injection facility. Supercritical
CO2 liquid is less dense than water and may cause density-driven stress conditions at depth or
interact with formation water and rocks, causing a reduction in permeability and pressure buildup
leading to seismic activity. Structural compatibility, historical seismic activity, cases of seismic
activity triggered by deep well injection, and formation capacity were considered in evaluating
the regional seismic suitability in the United States. Regions in the central, midwestern, and
southeastern United States appear best suited for deep well injection. In Ohio, substantial deep
well injection at a waste disposal facility has not caused seismic events in a seismically active
area. Current technology provides effective tools for investigating and preventing induced
seismic activity. More research is recommended on developing site selection criteria and
operational constraints for CO2 storage sites near zones of seismic concerns.

More can be read here http://www.netl.doe.gov/publications/proceedings/01/carbon_seq/p37.pdf

Other related story HERE

Urgent Agenda 21 Meeting

UN Agenda 21 means “Agenda for the Twenty-first Century”.  It is a plan to destroy a free America. There are many terms in our society today that relate to Agenda 21. Smart Growth, Sustainable Development, urbanism, environmental stewardship, Green space, global warming, carbon footprint……..  Many of these sound good but the end results is far from good.  Agenda 21 is designed to take away your property and control every aspect of your life … the end result is to take away your freedom.  Agenda 21 clearly states the goal is “Reorientation of Human Society”.

More and more American’s desire to learn about Agenda 21, we are beginning to recognize its encroachment in our cities & parishes. It’s right here in our own state!

On Saturday, January 14th, 2012, you will have an opportunity to learn from Ruth Esser the history of the United Nations Agenda 21.   Mr. Tom DeWeese will be our keynote speaker. Mr DeWeese is an internationally known speaker, an author and an expert on Sustainable Development & the UN Agenda 21.  He is the Founder of the American Policy Center. We will gain much insight from Tom DeWeese.  You don’t want to miss this!

Knowledge and Action are our best tools to fight the United Nation’s “Agenda 21”!

Moon Griffon, The Voice of Louisiana will be our Master of Ceremonies

                                  Mark your calendar for the Symposium, seating is limited!

                                                  
Date: Saturday, January 14th, 2012
Time: 1:00pm to 4:00pm
Location:
Family Christian Academy
8919 World Ministry Ave.
Baton Rouge, Louisiana

EVENT LOCATION MAP

http://www.agenda21la.com/Information.php

(Contact your local community groups for next Agenda 21 meeting near you.)

———————————————————————

This event will be filled with educational material from some of the best experts on the topics concerning Agenda 21.

AGENDA 21 in 1 easy lesson

—————————————————————————————————–

Agenda 21
BUZZ WORDS:  sustainable development, smart growth, biodiversity, social justice
Agenda 21 is a comprehensive plan of action to be taken globally, nationally and locally by organizations of the United Nations System, Governments, and Major Groups in every area in which human impacts on the environment.  Agenda 21, the Rio Declaration on Environment and Development, and the Statement of principles for the Sustainable Management of Forests were adopted by more than 178 Governments at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janerio, Brazil, in June, 1992.  Although it was not an international treaty, and, therefore, never ratified by the United States Senate, executive orders written by every president since President George H. W. Bush has instituted its principles.  The ultimate goal of Agenda 21 in to bring to fruition The United Nations “Habitat 1 Conference Report” of 1976, which states:

Private land ownership is also a principle instrument of an accumulation and concentration of wealth and therefore contributes to social injustice…Public control of land use is therefore indispensable.”

In other words, Agenda 21 is aimed at controlling all property rights.  Areas on the Gulf Coast which were devastated by Hurricane Katrina are some of the most affected in that nearly all (if not all) communities accepted federal monies to rebuild after Katrina.  That money has ties to the United Nations and Agenda 21 through various governmental and nongovernmental agencies, including, but not limited to: the EPA, USDA, ICLEI, U.S. Fish and Wildlife Service, U.S. National Park Service, Housing and Urban Development, the Department of Education, Nature Conservancy, Sierra Club, National Audubon Society, American Planning Association, Rockefeller Foundation, Pew Foundation, and Ford Foundation.
Money tied to these organizations puts restrictions on land usage; you may own the land (including your house) and pay taxes on the land, but if federal money was accepted by your local officials, your rights to do with your land as you want may very well be restricted.
Bring as many friends and family as you can find.  All are affected.

Sources:

http://www.stopagenda21inms.com/

http://green-agenda.com/index.html

Mississippi High Court Justices Seek Reasons why PSC Reversed Itself to allow Kemper Co. Coal Plant

JACKSON, Miss. — Three Mississippi Supreme Court justices asked repeatedly Wednesday where the state Public Service Commission laid out its reasoning when it modified its decision to allow the construction of a Kemper County power plant last year.

The Sierra Club is trying to get the Supreme Court to derail the $2.7 billion power plant, now under construction in Kemper County’s Liberty community. The environmental group argues the PSC broke the law by failing to lay out its reasoning clearly when it eased the financial terms under which Mississippi Power Co. could build what it calls Plant Ratcliffe.

A lawyer for Mississippi Power said the commission didn’t have to provide such reasoning, though. He said judges could find reasons to support the decision in the 30,000-plus pages of testimony and records submitted as part of the appeal.

Mississippi Power says rates will go up about 33 percent to pay for the plant. However, Sierra Club lawyer Robert Wiygul told the court Wednesday that confidential documents he has reviewed show rates would rise as much as 45 percent. The Mississippi Business Journal reported the same amount in August 2010, citing documents obtained through a public records request.

A unit of Atlanta-based Southern Co., Mississippi Power would buy lignite mined nearby, turn it into a synthetic gas, and burn the gas, capturing byproducts such as carbon dioxide and selling them. The technology is supposed to allow coal to be burned more cleanly and cut emissions of carbon dioxide, which scientists say contribute to global warming. Mississippi Power says the plant is needed to provide more electricity for its 193,000 customers scattered from Meridian to the Gulf Coast.

The Sierra Club opposes the project, saying that the technology behind the plant is unproven and that it’s undesirable under any circumstances to build new coal mines and new coal-fired power plants. The environmental group says it would be cheaper for Mississippi Power to build a natural gas plant or buy power from independent natural gas generators.

“The law requires the Public Service Commission to choose the cheapest and most reliable technology and power plant,” Louie Miller, executive director of the Mississippi Sierra Club, said at a pre-hearing news conference. “This is neither.”

The PSC originally voted in April 2010 to cap at $2.4 billion the amount that Mississippi Power could charge ratepayers for the plant. The company is also getting about $300 million in federal assistance. Commissioners also said the power company couldn’t charge ratepayers for the plant before it started operation.

Mississippi Power said it couldn’t build under those conditions and asked the PSC to reconsider.  (Previously suggested most corrupt in MS) Lawyer Ben Stone  said Wednesday that it needed wiggle room for cost overruns, and wanted to charge ratepayers early to cut the interest customers would pay on money borrowed for the project.

"Uncle Ben Stone", Haley Barbour, and Steven Palazzo

"Uncle Ben Stone", Haley Barbour, and Steven Palazzo

“We could not go to the financial markets without some relief in both of those areas and finance the plant,” Stone said.

If this scheme had any merit it could have found investors.  With a negative credit score and historical pattern of Lignite Coal plant failure, Investors know Mississippi Power and Southern Company’s Kemper Coal Plant is a money pit with no intention of making money. It will be fined, regulated with fees, and taxed right out of any possible profits.  Among other costs to run problems they will encounter.  The profit comes in when MS power can charge a percent of its overall costs to the ratepayers.  Criminal and truly un-American, isn’t it? 

 A month later, commissioners voted 2-1 to give Mississippi Power what it wanted, raising the cost cap by 20 percent, to $2.88 billion. The commission must still agree that company spending is “prudent” for it to collect any money, even below $2.4 billion. It also allowed Mississippi Power to start charging before the plant’s scheduled start in 2014. Under state law, Mississippi Power can keep the money even if the plant is never completed.

It is not prudent to charge ratepayers for an experimental CO2 capturing mechanism that fails to produce any electricity, and  is founded on global warming science fraud, and a cap-and-trade system not yet in adopted. 

The key issue in Wednesday’s case is not whether the plant is a good idea, but whether the PSC adequately laid out its rationale for what Miller labeled a “flip-flop” by commissioners Leonard Bentz and Lynn Posey, who voted for the amended conditions.

The Sierra Club said the PSC didn’t adequately explain. “That’s going to require some evidence you can see and really get your arms around,” Wiygul said.

He said judges shouldn’t have to pick and choose reasons from the overflow of material submitted with the appeal, and the three justices sitting Wednesday seemed sympathetic to that argument.

“I did not see and still do not find anywhere where the commission explained to the court why this was now not too risky,” said Associate Justice Randy “Bubba” Pierce. “I want to know what happened between April 29 and May 26. What additional facts were submitted to the record?”

Stone said the new facts were contained in Mississippi Power’s motion to reconsider and its post-hearing briefs. “It’s very obvious to us that all those matters are supported,” he told the justices.

More importantly, though, he said the PSC was not required to summarize its reasoning for court review. Stone said that a prior court case says that as long as the court can find the reasoning in the record leading to the decision, the court must let the PSC’s decision stand.

JEFF AMY  Associated Press

Supreme court will hear Kemper Coal Plant arguments Mississippi Power & Southern Company

Supreme court will hear Kemper Coal Plant arguments

by MBJ Staff  (Mississippi Business Journal)

Published: November 4,2011

The Mississippi Supreme Court will hear arguments from the Sierra Club challenging the state Public Service Commission’s approval of the project in Kemper County by Mississippi Power Co. Mississippi Power has started construction of the $2.4 billion coal plant.

Oral arguments are scheduled for Dec. 14.

The suit was filed and heard in Harrison County Chancery Court. Judge Jim Persons ruled in favor of the Commission and Gulfport-based Mississippi Power in February.

Mississippi Power began building the Kemper plant after the Commission passed a second conditional approval of the facility with 2-1 vote in May 2010.

The Commission’s first conditional approval was passed in April of 2010 and capped the project at $2.4 billion, among other restrictions. The second order, passed approximately one month later, limits the plant’s cost overruns to $2.88 billion and also allows the utility to charge customers for financing costs before the plant becomes operational.

The Sierra Club believes the Commissions’ second conditional approval of the plant is arbitrary and  unsupported by evidence presented in extensive hearings regarding the project.

The suit says that the Commissioners “did not explain how their finding that a $2.88 billion cost was acceptable could be squared with their previous finding that there is no evidence to support a cost of over $2.4 billion.”

State Sierra Club director Louie Miller said the club has taken on the unexpected role of consumer advocate in addition to environmental advocate in this case.

Included in the suit is an effort to make customer rate impacts from the plant available to the public.

Progress Exposed on Facebook

From a Facebook Post: http://www.facebook.com/pages/Stop-UN-Agenda-21-Stop-ICLEI/284021125057

“To be clear, you will not find the words UN Agenda 21, ICLEI or any other similar term, anywhere in this dispute, but that is exactly what this case and this ruling are about. 100%.

However, the obscure headline: “Federal judge: Washington must restrict greenhouse gas emissions from state’s 5 oil refineries” gives enough information to show the links to UN Agenda 21, “greenhouse gas emissions” and “oil refinery”. I’ve gone round and round with our local property rights activists, who can’t seem to accept that the game here is rigged from the jump with the provisions of the Growth Management Act, or more commonly known as the GMA here in WA. Well, here’s your proof and it doesn’t get any clearer than this. If you still can’t see it…. Quote from the article: “The court affirmed that Washington has the authority and the obligation to address impacts from climate change pollution,” she said. “Our state can no longer afford to have our regulators sit on their hands and wait for the federal government to deal with the issue. It is time for our state regulators to follow the law and implement long-overdue measures to protect our climate.” Does it need to be spelled out more clearly than that? The federal judge ruled on the applicability of Washington’s Growth Management Act, entirely Agenda 21 derived and driven I might add, on businesses in Washington State. This is also why the Agenda 21 derived GMA must be attacked head on and it must be repealed. Or, at the very least, the more ridiculous and overarching elements need to be removed from it. The opponents of American business and American sovereignty, Sierra Club, EarthJustice, WEC, et al, know that by insisting on these CO2 controls and forcing it through the courts, that they will knee-cap these businesses into submission with the ridiculous idea that CO2 is causing harm to the environment, making them less efficient and less productive. Agenda 21 is about controlling CARBON. Life is CARBON. Therefore Agenda 21 is about controlling LIFE. CO2 is NOT harmful or a pollutant!!! “He who controls carbon, controls life.” ~ Unknown”

 

“SEATTLE — Washington must restrict greenhouse gas emissions from the state’s five oil refineries and possibly other industries under a federal judge’s ruling Friday.

The Sierra Club, the Washington Environmental Council and their lawyers at Earthjustice sued the state Ecology Department and two regional clean air agencies in March to force them to do a better job curbing emissions from the refineries. The groups estimate the refineries are responsible for up to 8 percent of all greenhouse gases released in Washington.

Under the state’s own environmental rules, U.S. District Judge Marsha Pechman noted, regulators are supposed to require “reasonably available control technology” by industrial emitters of greenhouse gases such as methane, nitrous oxide and carbon dioxide. State regulators never actually enforced that, even though the rules were first approved by the U.S. Environmental Protection Agency in 1995.

Instead, state regulators require refineries only to comply with reductions of certain other air pollutants, such as sulfur dioxide.

Earthjustice attorney Janette Brimmer called the ruling a big deal for the state.

“The court affirmed that Washington has the authority and the obligation to address impacts from climate change pollution,” she said. “Our state can no longer afford to have our regulators sit on their hands and wait for the federal government to deal with the issue. It is time for our state regulators to follow the law and implement long-overdue measures to protect our climate.”

Though the environmental groups sued over the emissions from Washington’s five refineries, the language of the judge’s ruling — that state regulators must require reasonably available control emission-control technology from emitters of greenhouse gases — would seem to apply to other industries as well.

“The court affirmed that Washington has the authority and the obligation to address impacts from climate change pollution,” she said. “Our state can no longer afford to have our regulators sit on their hands and wait for the federal government to deal with the issue. It is time for our state regulators to follow the law and implement long-overdue measures to protect our climate.”

The other major emitters of greenhouse gases in the state include the TransAlta Corp. coal-fired power plant in Centralia, which is already getting new pollution controls before it is shut down in 2025, and cement kilns. It’s not clear whether any “reasonably available technology” exists that would cut greenhouse gas emissions from cement kilns, Brimmer said.

What is clear is that oil refineries can reduce their emissions, primarily by making their processes more efficient and thus burning less fuel during refining, she said.

Seth Preston, a spokesman for the state Ecology Department, said Friday that officials had just received the ruling and were reviewing it.

“To be able to talk about far-reaching implications, we’re not there yet,” he said.

The refineries are BP PLC’s Cherry Point near Blaine, ConocoPhillips’ in Ferndale, Shell Oil Co.’s in Anacortes, Tesoro Corp.’s in Anacortes and U.S. Oil’s in Tacoma. A spokesman for the Western State Petroleum Association, which represents the refineries and intervened in the case, said its lawyers were reviewing the decision and did not have any immediate comment.

Pechman said she would determine later how quickly the state must apply greenhouse gas emission standards to the refineries. The environmentalists argued that the state could begin enforcing the rule within 90 days, but the agencies suggested they would need three years.”

HERE

Public Hearing Kemper Court House

Public Hearing OVER BUT SEND COMMENTS HERE

& TO Your Favorite Media Source.

Tuesday 7pm

Kemper Court House
280 Veterans Street
DeKalb, MS 39328

10/18/2011

Information and documents HERE

More details of opposition and Liberty Fuels and Environmental Impact

Progressive Group charters Bus to attend Hearing

Calendar: Gulf Coast Fund Events
Title: Meeting on the Kemper Lignite Coal Plant
When: Tuesday, October 18, 2011 2:00 P – 12:00 P (OVER!)
Description: (MS) 2:00pm CST – Bus Departs Gulfport for Meeting on the Kemper Lignite Coal Plant – Location: DeKalb, MS – This project is still in the permitting phase for the mine portion. This is the 45+ square mile strip mine proposed to obtain lignite to put through a convoluted nasty process that could that converts it to gas to fire the plant so that it could then produce electricity. And keep in mind who is footing the bill for this experiment that from the get-go so failed to inspire professional financiers that they told the Southern Company “not interested.” We must say NO to allowing outsiders to decide acceptable cancer risk levels for our children. We must say NO to allowing outsiders to decide that polluting the watershed of the Pascagoula River with mercury and arsenic is acceptable. Think what this would do to our already extremely stressed Gulf. We must say no to having our utility bills double within the next 3 months. Transportation will be leaving at 2pm from Gulfport / Crossroads Shopping Center (on Hwy 49 north off I-10) near Barnes & Noble bookstore. To sign-up or for more information, please contact Glen Sandberg at glens@ieee.org or call Linda St. Martins at 228 324 4028.
Location: DeKalb, MS (Meet at Crossroads Shopping Center, Gulfport)
Author:

gulfcoastfund@gmail.com email info@gulfcoastgund.org

Mississippi DOE to hold Public Hearing

Don’t Let It All Go Out Of State

Millions of Tons of Lignite to Power Kemper Plant

Sept. 12, 2011, 3 p.m. CDT Associated Press

JACKSON, Miss. (AP) — Once Mississippi Power Co.’s generating plant in Kemper County comes online, it will be supported by a large — and eventually, the largest — coal mining operation in the state.

Mississippi Power president/CEO Ed Day says there’s enough lignite coal in east Mississippi to keep the plant running for decades.

Liberty Fuels Co. LLC, a wholly owned subsidiary of North American Coal Corp. of Bismarck, N.D., will mine the lignite for Mississippi Power.

What a shame a good Mississippi business could not grab this contract.  I hope credible Mississippi businesses will attend the Oct 18 Meeting and get their portion of the Kemper Lignite Gold Rush.

The Mississippi Department of Environmental Quality will hold a public hearing in DeKalb on Oct. 18 on Liberty Fuels’ permit application.

MDEQ officials said as of Monday they have not received any filings by opponents to the mine. However, they said the opponents may be waiting until the public hearing to speak up. The public comment period began when the public notice began running in newspapers about two weeks and will continue until Oct. 21, the Friday after the public hearing.

The application calls for Liberty Fuels to mine 2 million tons of lignite per year during the first five-year permit. Thereafter, it will mine 4.1 million tons per year through 2052.

“We are pleased and excited about expanding our operations in Mississippi, as it is a great state to do business,” said Tres Tipton, vice president of operations for North American Coal in Mississippi and Louisiana.

The application provides that mining will be conducted on 31,000 acres over 40 years and will include 2,229 acres within the five-year permit area.

The Kemper County operation eventually will dwarf North American Coal’s other Mississippi lignite mining operation in Choctaw County. It was permitted in 1998 and the first coal was mined in late 1999. The Choctaw power plant began operation in 2002 and supplies power to the Tennessee Valley Authority.

“It was driven by TVA needing more electricity. They have a 30-year contract to buy all of the power produced,” said Stan Thieling, with MDEQ’s Office of Geology.

He said the Choctaw County operation mines 5,900 acres and produces about 3.5 million tons per year.

Kemper County, he said, “will be the biggest but it will take a few years.”

That’s of no matter to Mississippi Power’s Day.

“The fuel supply from Kemper will be stable and predictable over a 40-year period,” Day said. “We’ll burn four millions tons if lignite a year at full operation. That’s 160 million tons over 40 years. There are four billion tons of lignite in Mississippi. We’re not going to run out of lignite.”

The fuel supply may be stable but the “demonstration” technology may run into snags closing the entire plant down for costly repairs and parts. ( I read this happening to other plants) It is a logical expectation with brand new technology with limited small scale short duration testing .  But you just keep shoveling the positive lignite energy vibes, Mr. Day, because they will remember this article prediction when a filter system fails and everything is at a standstill But there will be a continuous fuel supply.

Mississippi’s deposits of lignite run from the northern counties near Memphis, Tenn., halfway across the border with Tennessee. The deposit area stretches down and curves through the central Hill counties to north Meridian and into Alabama.

Sounds like there may be some transporting fees involved after all, along with some crossing state line taxes and fees.

“It would take a lot of mine to use that up,” said state geologist Michael Bograd.

Bograd and Thieling said there’s lignite in other parts of Mississippi — Natchez, for example — that is located too deep in the ground to be financially viable too mine.

The mine in Choctaw County is a surface mine, as will be the one in Kemper County.

Day said Mississippi Power has located its power plant on the lignite seam.

“We can physically go out and see the lignite and touch it,” Day said.

The 582-megawatt plant near the Liberty community will use a process that converts the lignite coal into a synthetic gas and generates electricity with fewer emissions than existing pulverized coal power plants. The plant is expected to be in operation in 2014.

The mine and plant will employ 300 people.

ONLY 300 PEOPLE?

Day said the plant helps Mississippi Power diversify it fuel portfolio. He said such diversification would be attractive to industrial prospects looking for stable energy costs and prices.

Thieling said Mississippi might have more mines in its future.

“North American Coal has got lots of ideas for Mississippi. We wouldn’t be surprised to see several more mines in the next decade or two,” he said.

Bograd said the mining industry is very heavily regulated. He said the requirements are voluminous and comprehensive and MDEQ is responsible for the state permits the mines and power plants must have.

Mississippi Power Co., http://www.mississippipower.com

MDEQ, http://www.deq.state.ms.us

North American Coal Corp., http://www.nacoal.com

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