Bill Dean, NRC Regional Administrator for District 1 speaking in Brattleboro in June. Photo by David Shaw, The Commons.
At issue is a petition filed by the Vermont Attorney General and the Vermont Public Service Department urging the Nuclear Regulatory Commission to undertake a “robust, comprehensive and participatory review” of trust fund expenses planned by Entergy in the wake of Vermont Yankee's December 2014 shutdown.
Now, NRC staffers and Entergy administrators are playing defense, deploying a variety of unflattering terms about the state's complaint – “duplicative,” “impermissible,” “alarmist,” “meritless” and “vague,” to name a few – in an attempt to urge the NRC's commissioners to reject Vermont's petition.
Both the federal agency and the energy company take pains to say the scenario state officials are imagining – exhaustion of the Vermont Yankee trust fund before radiological cleanup is finished at the Vernon plant – simply can't happen.
“The commission’s regulations are specifically structured so as to prevent this scenario,” the NRC's filing says.
Vermont Yankee is heading into a decades-long period of dormancy called SAFSTOR, and the size of the trust fund will play a big role in how soon actual decommissioning work begins.
Entergy has projected total VY decommissioning costs at $1.24 billion. The trust fund held $610.35 million as of last report, though market fluctuations and decommissioning spending make that figure fluid from month to month.
State officials have objected to Entergy's plans to use the fund for expenses such as property taxes and insurance payments. And the biggest fight has been over Entergy's use of trust fund cash for long-term management of spent nuclear fuel at the site. The NRC has approved that use, but Vermont officials appealed via a federal lawsuit filed in August.
The state's November petition to the NRC was one more way in which to wage that same war. In documents filed at the time, Vermont officials argued that “considered together, Entergy's actions threaten to undermine the radiological decommissioning work that is the very purpose of the (trust) fund.” Without NRC intervention, the state claimed, “Entergy will divert hundreds of millions of dollars from their intended purpose.”
Entergy minced no words in its response to Vermont's petition, saying the state “presents and references—without any coherent procedural basis—a hodgepodge of generalized grievances, duplicative pleadings, untimely appeals, impermissible challenges to NRC regulations and conjecture about what NRC regulations should require.”
There is plenty of procedural talk in the new documents, with both the NRC staff and Entergy listing numerous reasons why Vermont officials are not pursuing the correct regulatory remedies and aren't entitled to a hearing.
While Vermont officials say they are raising new questions about decommissioning, the NRC staff says that's not so. “Decommissioning and (trust fund) issues were considered by the commission in 1996 and 2002, and there is a current rule-making under way that proposes to address such issues,” the agency's filing says. “Moreover, how a licensee decommissions, and specifically, how it funds decommissioning, has been addressed in a number of prior proceedings.”
The NRC again defends its decision to allow Entergy to spend money from the trust fund for long-term spent fuel management at Yankee. That bill that could reach $225 million, based on current projections. Officials say the NRC staff performed an independent cash flow analysis "and confirmed that there was reasonable assurance of adequate funding to complete radiological decommissioning and to pay for spent fuel management."
The NRC keeps close watch on decommissioning trust funds, staff members say. Measures include annual status reports submitted to the agency, as well as a requirement to make up for any shortfalls in a fund.
For their part, Entergy administrators say they're doing nothing that is outside NRC regulations. And they say trust funds have been approved for spent fuel management at other shutdown plants such as Crystal River in Florida, Kewaunee in Wisconsin and San Onofre in California.
Furthermore, they reach back into Vermont Yankee regulatory history to show that, at one point, the state of Vermont apparently approved of such spending. In 1994, then-plant owner Vermont Yankee Nuclear Power Corp. filed a rate application and updated decommissioning cost estimate that was supported by the state Department of Public Service. That estimate “included the very items which petitioners now challenge,” Entergy reports, including items like taxes, insurance, emergency planning and spent fuel management.
Other arguments in the NRC and Entergy filings include:
• While state officials are concerned that last year's discovery of small amounts of strontium 90 at Vermont Yankee could increase decommissioning costs, Entergy labels this “gross conjecture,” and the NRC says the state “does not explain how the low level of that contamination will require increased remediation.”
• Vermont officials and others have worried that spent fuel could remain at Vermont Yankee indefinitely, and some say Entergy has not adequately planned for that. Entergy calls this “alarmist,” saying the idea that long-term fuel storage might leave no money for decommissioning “disregards the entirety of the (NRC's) robust decommissioning oversight regime.”
• NRC staffers say the state's petition “has not demonstrated a substantial risk to public health and safety.” As they did on Dec. 10 in approving the elimination of the Vermont Yankee emergency planning zone (https://vtdigger.org/2015/12/11/feds-downsize-vermont-yankee-emergency-operations/), NRC officials cited the decreased danger posed by a shuttered nuclear plant.
“The risk of an offsite radiological release is significantly lower and the types of possible accidents are significantly fewer at permanently shutdown and defueled facilities than at operating facilities,” the NRC's filing says.
The state will have an opportunity to respond in writing to the arguments made by Entergy and NRC staff.
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