VERNON – If Entergy wants to use the Vermont Yankee decommissioning trust fund to pay for expenses such as property taxes, insurance and emergency preparedness, it's going to have to tell the federal and state governments in advance.
On Thursday, the federal Atomic Safety and Licensing Board ruled that requiring Entergy to provide such specifics in its notifications “will afford Vermont an opportunity, if it chooses, to dispute a specific disbursement” from the Vernon plant's trust fund.
The licensing board's decision is a victory for the state, and it is also an acknowledgment that many legal and regulatory battles – especially regarding controversial disbursements from the trust fund – have yet to be resolved.
“Although Entergy has stated in previous 30-day notices to the NRC that its disbursements are for 'legitimate decommissioning' expenses, this proceeding makes clear that Vermont and Entergy define the term differently,” the licensing board wrote.
Vermont Yankee stopped producing power Dec. 29, but decommissioning will take decades as the plant enters a period of extended dormancy called SAFSTOR. The speed of the cleanup process is reliant on how much cash is in the plant's decommissioning trust fund, and that fund currently contains about half of the estimated $1.2 billion needed to finish the job.
Any use of the trust fund attracts scrutiny: For example, the state and Entergy are battling over the company's plans to withdraw from the fund for spent nuclear fuel management and property tax payments.
Additionally, when Entergy asked for permission to stop sending 30-day advance notices to the federal Nuclear Regulatory Commission before dipping into the trust fund, Vermont officials objected on the grounds that the state wouldn't be able to challenge those expenditures before they happened. The state was granted a hearing on the matter Aug. 31, but Entergy later decided to drop the license-amendment request and continue providing 30-day notifications.
But, as is often the case with Vermont Yankee matters, the argument did not end there. State officials had asked the licensing board to do two things before allowing Entergy to withdraw its request:
• First, the state wanted key parts of the case preserved – specifically the fact that, after much legal wrangling, Vermont had been granted two admissible arguments and a hearing. Otherwise, if Entergy walked away from the matter and refiled the same request later, Vermont “would be starting over again from scratch, without the benefit of the large amount of resources already expended in this proceeding,” officials wrote.
• Second, the state wanted Entergy to give far more detail on “specific expenses” from the trust fund when providing 30-day notices. Currently, the company does not detail its planned expenditures; it provides only the maximum amount it intends to withdraw from the fund during a specified time frame.
Thursday's ruling by the Atomic Safety and Licensing Board serves as the official termination of Entergy's original license-amendment request, and it grants the state one of its demands – but only in part.
Siding with Entergy, the board declined to preserve any of the license-amendment case for future proceedings. “Vermont has not demonstrated sufficient legal harm to justify the sanction of turning a voluntary withdrawal into a withdrawal with prejudice,” the board wrote.
Also, board members said the state's specific arguments in this case may not necessarily apply to any future license amendment filed by the company.
But the licensing board leaned toward the state's point of view by requiring Entergy to specify in its 30-day notices when the company plans to use trust-fund cash for any of six purposes – all relating to issues that state officials had raised in the license-amendment case.
The six trust-fund uses that require disclosure are:
• Payment of $5 million to Vermont as part of a settlement agreement with the state.
• Emergency-preparedness costs.
• Shipments of non-radiological asbestos waste.
• Property taxes.
• “Replacement of structures related to dry cask storage, such as a bituminous roof.”
(Dry cask storage is the manner in which all of Vermont Yankee's spent fuel eventually will be stored at the plant site.)
Entergy also must provide advance notice if it plans to use the trust fund for legal fees that were disputed in the license-amendment case.
There was one additional condition imposed by the licensing board – a condition that also had been recommended by the NRC staff: In a mechanism designed to give Vermont more time to respond to future regulatory changes proposed by Entergy, the company “must provide written notice to Vermont of any new license-amendment application relating to the decommissioning trust fund at the time such application is submitted to the NRC,” the board wrote.
In reaction to Thursday's ruling, Entergy spokesman Marty Cohn said the company “will continue to abide by all NRC requirements, and we're exploring our legal options.”
Though state officials didn't get everything they wanted, Public Service Department Commissioner Chris Recchia lauded the licensing board's decision.
“I am pleased that the licensing board has seen the wisdom of Entergy notifying us of specific expenditures from the decommissioning trust fund,” Recchia said in a statement. “I think this will help us in being able to ensure that the funds are used appropriately and that decommissioning can occur at the earliest possible time.”
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