Mayo (Constellation CEO) Pays Me A Visit

Cathy Garger

What would you say if I told you the head of Constellation Energy, Mayo Shattuck, spent time with me recently? Well, to be clear, the CEO of the Baltimore-based utility firm with revenues approaching $20 Billion last year* did not actually come over and introduce himself to me. But Mayo did sit with Maryland state attorneys and his own lawyer in a courtroom with a woman who had the audacity to take the state to court over its decision involving an experimental French nuclear reactor being pedaled by Constellation and Electricite de France.

For some reason perhaps you can help me figure out, the case I brought before Baltimore’s Circuit Court was of sufficient concern to merit Maryland’s $10.25 Million-a year exec to take time out of his busy day - at my ratepayer-funded hourly rate of $4,927.88, I might add - to sit in an old Baltimore City court room and face off against someone he must have perceived as a threat... a solitary, middle-aged homemaker, me.

My attorney was unable to make it, so I sat in the courtroom quite alone. In stark contrast, Mayo was flanked by not just one or two, but by four attorneys who, by all indications, anxious to defend the state of Maryland’s Public Service Commission’s decision to allow UniStar (Constellation Energy plus French-state owned Electricite de France) to construct the twelfth reactor to dump hot, toxic, and radioactive chemicals into the dead-and-dying Chesapeake Bay and its tributaries.

With all the charm and congeniality of a beauty pageant contestant, Maryland’s Utility Czar exchanged pleasantries with the Judge presiding over my case, indicating he knew her. The Judge, apparently a bit surprised to hear Mayo intimate such familiarity in the court, explained they used to work together and expressed surprise to now be on the other side of the bench from him.

Seemingly caught off guard and a bit flustered, I distinctly recall the Judge presiding over my case using the word “bias.” Now, I’m no lawyer, but that sure didn’t sound like impartiality between a judge and a party whose firm stands to lose Billions in the nuclear deal!

I should explain a bit more why Mayo and I sat together in the court room that day. My reason for filing a Petition for Judicial Review was to request that the court examine the decision of the state of Maryland’s Public Service Commission to grant a “certificate of public convenience and necessity” for the construction of the proposed reactor. Maryland had given its blessing in June for UniStar - a now hotly contested potential legal partnership between Constellation Energy and Electricite de France - to build a double-size, experimental nuclear reactor at the Calvert Cliffs Nuclear Power Plant.

Yet, for the life of me I can not figure out what in my petition would make the Constellation Commander-In-Chief take a smelly elevator up to the fifth floor at noon and spend time with little ol’ me... instead of dining al fresco at some swanky Inner Harbor lunch spot?

Was it that Shattuck was afraid I’d tell the judge about Calvert Cliffs EPR manufacturer, AREVA, and its dealings with the United States’ long-term enemy, Iran, in their joint ownership of a Uranium Enrichment plant in France?

Maybe Mayo was afraid his attorney did not know enough to chat comfortably about the AREVA’s experiment - its test, “reference” French reactor that could conceivably run with bomb-grade Plutonium fuel - fuel manufactured by Shaw-AREVA - as soon as the MOX Fuel Fabrication Facility at the Savannah River Site could produce it?

Or maybe he simply wished to be on hand for any Executive Level decision that needed to be made in the event the Judge were to question why these matters had not been brought forth openly for the consideration of Maryland utility ratepayers – and residents who live near such a dangerous monstrosity?

It’s also possible that the smooth-talking Constellation head was afraid the Judge might actually be a human being with a conscience. In the event of a Judge with a functioning heart, she could, after all, rule the State must examine the high rates of cancer around the current Calvert Cliff Nuclear Power Plant.

A Judge with an even an ounce of compassion might even explore why no State-operated air quality monitors have ever existed in a county with two nuclear reactors conceived around the time of the rein of corrupt Governor Spiro Agnew.

Maybe Mayo wanted to be there simply to smooth things over in the event the Judge did not like the fact that Marylanders were being sold down the river as test subjects – mere “guinea pigs” – in order to dispose of 34 metric tons of “surplus” Bomb-Plutonium in commercial reactors like this one, as the feds had promised Russia back in 2000.

Perhaps Mayo was concerned the Maryland Attorney General and Governor were not on his side? Or could he have been sweating about the nearly 300% increase in over three years of EDF’s rising debt and the change in EDF leadership?

Or maybe his concerns stemmed from fear the topic would arise about neither Constellation Energy’s nor EDF’s lack of cash to decommission its current reactors after they are shut down – never mind how they’d find the money one day to close down and decontaminate the sites of any future reactors!

Could just be that Shattuck simply did not want Marylanders to find out about his old boss, Buzz Krongard, #2 man in charge in the CIA, or the fact he resigned from Bankers Trust 3 days after 9/11, his firm reportedly having business involvements with the Bin Laden family.

Why Mayo Shattuck was in the courtroom with me is anyone’s guess. All I know is - a hell of a lot of money is riding on this deal. So indeed, whatever was in my petition was apparently important enough to cause Constellation’s CEO to trade the stench of dealing with French nuclear-poisoners for the urine stench of a public Baltimore City elevator in order to face off against Yours Truly in Court.

Here’s my petition. Let’s see what you think.

*Constellation Energy website www.constellation.com/portal/site/constellation/menuitem.c5ed679d8e47f0875fb60610025166a0/

CIVIL ACTION No.________

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

Catherine M. Garger xxxxxxx MD

Petitioner

FOR JUDICIAL REVIEW OF DECISION ORDER NO. 82741
OF THE PUBLIC SERVICE COMMISSION OF MARYLAND
16 Saint Paul Street, 16th floor,
Baltimore, Maryland 21202.

IN THE CASE OF THE APPLICATION OF UNISTAR
NUCLEAR ENERGY, LLC AND UNISTAR NUCLEAR
OPERATING SERVICES, LLC FOR
A CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY TO CONSTRUCT A POWER PLANT
AT CALVERT CLIFFS IN CALVERT COUNTY, MARYLAND
CASE 9127
ORDER NO. 82741

INTRODUCTION
The Petitioner, Catherine M. Garger, states as follows in her Petition for Judicial Review:

(1) This petition for judicial review is filed pursuant to the provisions of Maryland Annotated Code that applies to Public Utility Companies §3–201 (b) which states the petitioner’s ability to “challenge a decision by the Commission to act by order rather than regulation shall seek judicial review of the Commission’s decision within 30 days after the Commission issues a final order in that proceeding.” This petition is timely as it is submitted within 30 days from June 26, 2009, the day the final Order 82741 was rendered.

(2) According to Maryland §3–202, Petitioner Garger has standing to request a judicial review as she is named as a “person in interest” and, as such, is listed on the Service List of Maryland Public Service Commission Case 9127. Furthermore, as stated in §3–201, Petitioner Garger is “A party to a Commission proceeding,” having participated in the Case 9127 Public Hearing on August 19, 2008, as well as having submitted testimony on the matter of the Air Quality Hearing held on March 9, 2009.

The Court will note that Petitioner Garger made known to the Hearing Examiner’s Office that she wished to become a “party” to the case but was neither offered the ability to do so nor provided with any information regarding how this could possibly be achieved.

As it was quite apparent this was Petitioner Garger’s first experience in engagement in a legal matter, it appears as if the Maryland Public Service Commission believes that citizens are expected to innately know intricate matters of state law with regard to how to go about becoming a legal intervener when there is objection to construction of a power plant. After inquiring about this matter, it seems only proper that a Hearing Examiner, at the very least, would have had the courtesy of advising Petitioner Garger of her right to make a plea to become an intervener by either inquiring with the Maryland Office of People’s Counsel, or by suggesting she inquire with a Maryland attorney or law clinic.

Since Petitioner Garger believed that the Hearing Examiner was the final authority on the matter, she accepted her position as “person in interest,” without any awareness of her legal ability to further challenge this matter. Please see attached for correspondence of Petitioner Garger and the Hearing Examiner.

(3) Petitioner Garger is a home owner and resident of xxxxx Maryland, whose address xxxxx Maryland . She is a customer and ratepayer of Baltimore Gas and Electric, owned by Constellation Energy, the entity that has entered into a joint venture with the Electricite de France with intent to construct a nuclear power facility called Unit 3 at the Calvert Cliffs Nuclear Power Plant. Petitioner Garger lives in Howard County, recreates outdoors in Calvert County, Anne Arundel County, and on the Chesapeake Bay, and has keen interest in the protection of the quality of life in the community and the health of the Chesapeake Bay, particularly with regard to the adverse effects of additional nuclear polluting emissions on the local airshed and Chesapeake Bay.

(4) Petitioner, Garger, seeks judicial review of the final ORDER NO. 82741 rendered on June 26, 2009. This Order finalized the Maryland Public Service Commission Hearing Examiner’s Proposed Order of April 28, 2009 approving the application of UniStar Nuclear Energy, LLC and UniStar Nuclear Operating Services, LLC for a Certificate of Public Convenience and Necessity to Construct a 1,710 Megawatt nuclear power plant and associated overhead transmission lines at Calvert Cliffs Nuclear Power Plant in Calvert County, Maryland. A copy of the final order is attached to this Petition for Judicial Review.

(5) Maryland Annotated Code §3–203 states that:
“Every final decision, order, or regulation of the Commission is prima facie correct and shall be affirmed unless clearly shown to be:
(1) unconstitutional;
(2) outside the statutory authority or jurisdiction of the Commission;
(3) made on unlawful procedure;
(4) arbitrary or capricious;
(5) affected by other error of law; or
(6) if the subject of review is an order entered in a contested proceeding after a hearing, unsupported by substantial evidence on the record considered as a whole.”

(6) The determination rendered by the Hearing Examiner for the Maryland Public Service Commission in Case No. 9127 for approval of the application of UniStar for a Certificate of Public Convenience and Necessity to construct a nuclear power plant in Calvert County, Maryland is arbitrary and capricious, otherwise unlawful and unreasonable, and should be set aside for the following reasons:
A. Maryland Public Service Commission Order 82741 is contrary to the federal “Clean Water Act,” US Title 33, Chapter 26, Subchapter III, § 1326 with regard to Thermal Discharges. The Clean Water Act assures “protection and propagation of balanced, indigenous population of shellfish, fish, and wildlife.”
B. Maryland Public Service Commission Order 82741 is contrary to Presidential Executive Order 13508 “CHESAPEAKE BAY PROTECTION AND RESTORATION” with its mandate to “restore water quality” and not further degrade water quality in the Chesapeake Bay.
C. Order 82741 is arbitrary and capricious and made in error with regard to nuclear waste disposal generated by the proposed nuclear reactor. The Proposed Orders states there is only “on-site storage capabilities for several years for nuclear waste produced by Unit 3” and that , “once again this is a matter of federal jurisdiction with the United States Government planning to set up a long-term depository.” In fact, President Obama opposes the national nuclear waste depository and has cut funding for the Yucca Mountain depository. The Maryland Public Service Commission has made this decision without concern for the “public interest” of its citizens with regard to the problem of additional high-level nuclear waste generated by the proposed nuclear reactor by relinquishing its own responsibility for the health, safety, and well-being of Marylanders to the federal government.

D. Order 82741 is arbitrary and capricious with respect to safeguarding the health and safety of Marylanders. Approving an experimental “reference” reactor designed for use with recycled fuel (Plutonium oxide mixed fuel) is not in the “public interest.” The proposed nuclear technology has neither been proven to work nor to operate safely, and as the Proposed Order admits, “Calvert Cliffs Unit 3 will be the first of this new standardized reactor design proposed by the Co-Applicants, and therefore if constructed will be the reference point for all subsequent U.S. EPR plants.”

E. Order 82741 is arbitrary and capricious, and is made in error of federal law, and outside of the jurisdiction of the Commission. The Proposed Order stated that the new 1710 Megawatt reactor would “reduce uranium consumption by 17 percent per megawatt hour as well as permitting recycling of spent fuel assemblies.” As the UniStar application admits, the use of recycled fuel assemblies is illegal in the United States. In fact, this is admitted by the UniStar application for the proposed nuclear reactor, which states: “Reduce uranium consumption by 17% per produced MWh and permit recycling of spent fuel assemblies (a process that is allowed in Europe, but not yet in the United States).”

F. Order 82741 is arbitrary and capricious, and without substantial evidence with regard to the decision to approve airborne chemical emissions of the proposed nuclear power reactor based solely on the modeling of air quality based in Fairfax, Virginia, a county where no nuclear power plant and its associated emissions exist. Determination of actual air quality in Calvert County, Maryland, has not been determined although Calvert County citizens have been subject to air pollution emissions from Calvert Cliffs Units 1 and 2 since 1975 and 1977.

G. Order 82741 is arbitrary and capricious, as it does not take into consideration the eventual additional expenses borne by utility ratepayers due to the higher costs of extra safety enhancements of this proposed Generation III EPR nuclear reactor, “with the primary difference between Generation II reactors the enhanced safety features incorporated in the new design.” Additional safety enhancements are costly yet necessary with the use of hotter, more volatile recycled (reprocessed) fuel. Since the use of reprocessed reactor fuel is illegal in the United States, this additional reactor expense is therefore an unnecessary burden upon Maryland electricity ratepayers.

H. Order 82741 is arbitrary and capricious as there was no consideration on the part of the Maryland Public Service Commission for further investigation with regard to high cancer rates in Calvert County, Maryland, a rural and residential community. These high cancer rates were acknowledged by the Hearing Examiner of the Maryland Public Service Commission in his March 23, 2009 written response to comments made during the March 9 air quality hearing.

WHEREFORE, Petitioner Garger respectfully requests that the determination of the Hearing Examiner of the Maryland Public Service Commission granting the application of UniStar Nuclear Energy, LLC and UniStar Nuclear Operating Services, LLC for a Certificate of Public Convenience and Necessity to construct a nuclear power plant at Calvert Cliffs Nuclear Power Plant in Calvert County, Maryland be set aside as arbitrary, capricious, unreasonable and unlawful, and for any and all other relief to which petitioner may appear entitled.
Respectfully submitted,
__________________________
Cathy Garger