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State granted hearing on VY trust fund use

BRATTLEBORO—When Entergy withdraws money from the Vermont Yankee decommissioning trust fund, should the company be required to first seek approval from the federal government?

That’s the question at the heart of an Aug. 31 ruling by the Atomic Safety and Licensing Board (ASLB).

The ASLB granted the state a hearing on the matter, giving Vermont officials a chance to argue in detail as to why they think Entergy should continue to provide a 30-day notice before trust-fund withdrawals.

Entergy wants to amend its Yankee license so that the company can spend money from the fund — including cash for spent-fuel management — without giving that notice.

Staff at the federal Nuclear Regulatory Commission have no issue with the proposal, but Vermont officials strenuously object.

“We need that notice to be able to know what is happening and to challenge it,” said Chris Recchia, state Department of Public Service commissioner.

The allowance for a hearing can be considered a small victory for the state in the ongoing battle over how the trust fund can be used over the next several decades at the Vernon nuclear plant, which ceased producing power Dec. 29.

However, Entergy is busy preparing its own arguments on the matter.

Company spokesman Martin Cohn noted that the Atomic Safety and Licensing Board “did not render a decision on the merits of the arguments put forth by the state of Vermont. Entergy is reviewing its legal options and will make a determination within the time frame allowed by the ASLB.”

How much and how fast can the money grow?

The question of how quickly the Vermont Yankee site is cleaned up depends, in part, on the size and growth of the plant’s decommissioning trust fund.

The decades-long decommissioning job is expected to cost $1.2 billion and can commence in earnest only when the trust fund — which held $636 million at last estimate — contains enough cash.

So every proposed expense, and the way in which withdrawals can occur, is under scrutiny. Some of Entergy’s proposed uses for the trust fund include property tax payments and spent fuel management, which has raised concern among state officials.

The Nuclear Regulatory Commission already has granted exemptions that would allow Entergy to use trust-fund money to manage spent nuclear fuel at the site. The state has challenged that decision, via the NRC and the courts.

The ruling concerns Entergy’s license-amendment request to do away with the required 30-day advance notice of expenditures from the decommissioning trust fund. As with the spent-fuel question, NRC staff have approved the change.

But that NRC decision cannot take effect until the plant’s license is amended. And now, according to the Atomic Safety and Licensing Board, the license amendment can’t happen until state officials are allowed to air their grievances at a hearing.

The stakes are high. The board notes that, if Entergy’s license amendment is granted, the NRC staff’s previous decisions “take immediate effect, allowing Entergy to make $225 million in withdrawals for spent fuel management without providing advance notice.”

Not everyone would see that as a problem. Board documents show that the NRC, in granting Entergy’s exemption requests in June, was “agreeing with Entergy that the [trust] fund has, or will have, enough money to pay for both spent fuel management and decommissioning and that providing 30-day notice of planned spent fuel cost disbursements is unnecessary to ensure adequate funds.”

State officials dispute that notion, arguing in its petition for the hearing that Entergy’s license-amendment request is inaccurate and incomplete and also “involves a potential significant safety and environmental hazard” because of allegedly improper expenditures from the trust fund.

“The state asserts that there is a serious risk that the company will run out of money before it finishes decontaminating the site — exactly the sort of risk that the agency’s decommissioning trust fund regulations are intended to prevent,” the ASLB’s decision says. “Accordingly, the state argues that the 30-day-notice requirement remains necessary to give the NRC the opportunity to reject the allegedly improper withdrawals before they occur.”

Entergy and NRC staff opposed the state’s request for a hearing on the issue. But the Atomic Safety and Licensing Board, while not ruling on the merits of Vermont’s claims, said the state’s request was timely and found that two of the state’s contentions were admissible.

NRC spokesman Neil Sheehan said the hearing — which has not been scheduled — will take place before a three-judge panel of the Atomic Safety and Licensing Board. And the board’s decision wouldn’t necessarily end the dispute, as “any appeals of ASLB rulings are considered by the presidentially appointed commission that oversees the NRC,” Sheehan wrote in an email.

‘First crack in the door’

The question of what meaningful role the state can play in a tightly regulated federal process has come up repeatedly, and Recchia, who sounded relieved that the state’s concerns will be the subject of a formal, federal hearing, has complained that the NRC has not been responsive to Vermont’s concerns.

“This is really the first crack in the door where I feel like they have started to understand the significance of this in terms of managing the [trust] fund,” Recchia said. “Ultimately, this is about safety and the environment if, at the end of the day, you don’t have sufficient funds to decommission.”

Recchia also knows there is much work ahead. The granting of the state’s hearing request is “a big step, but it is just one of many steps,” he said.

Vermont Attorney General William Sorrell said the state is “steadfast that Entergy must use the decommissioning fund appropriately. We are glad that the licensing board has agreed to let our challenges proceed.”

“We look forward to seeing this through and making sure Entergy uses this trust fund for cleaning up the site,” Sorrell said in a prepared statement issued on Sept. 1. “While it might benefit Entergy to use this trust fund for other purposes, this is not in the best interest of Vermont, and we will continue to strongly advocate for the state.”

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Originally published in The Commons issue #322 (Wednesday, September 9, 2015). This story appeared on page A6.

Links

ASLB ruling (Aug. 31)

State of Vermont’s petition to intervene and hearing request (April 20)

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