[Federal Register Volume 65, Number 229 (Tuesday, November 28, 2000)]
[Notices]
[Pages 70843-70845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30283]


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 Notices
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains documents other than rules 
 or proposed rules that are applicable to the public. Notices of hearings 
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  Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / 
Notices  

[[Page 70843]]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 50-286]


In the Matter of Power Authority of the State of New York (Indian 
Point Nuclear Generating Unit No. 3); Order Approving Transfer of 
License and Conforming Amendment

I.

    The Power Authority of the State of New York (PASNY or the 
Authority) is the holder of Facility Operating License No. DPR-64, 
which authorizes operation of the Indian Point Nuclear Generating Unit 
No. 3 (IP3 or the facility) at steady-state power levels not in excess 
of 3025 megawatts thermal. The facility, which is owned by PASNY, is 
located in Westchester County, New York. The license authorizes PASNY 
to possess, use, and operate the facility.

II.

    Under cover of letters dated May 11, 2000, and May 12, 2000, PASNY, 
Entergy Nuclear Indian Point 3, LLC (Entergy Nuclear IP3), and Entergy 
Nuclear Operations, Inc. (ENO), submitted an application requesting 
approval of the proposed transfer of the IP3 operating license to 
Entergy Nuclear IP3 to possess and use and to ENO to possess, use, and 
operate IP3, and approval of a conforming amendment to reflect the 
transfer. The application was supplemented by letters dated June 13, 
June 16, July 14, September 21, October 26, and November 3, 2000.
    Entergy Nuclear IP3, a Delaware corporation, is a wholly owned 
indirect subsidiary of Entergy Corporation and a wholly owned indirect 
subsidiary of Entergy Nuclear Holding Company #1. ENO, a Delaware 
corporation, is an indirect wholly owned subsidiary of Entergy 
Corporation, and a direct wholly owned subsidiary of Entergy Nuclear 
Holding Company #2. After completion of the proposed transfer, Entergy 
Nuclear IP3 would be the owner of IP3 and ENO would be the operator of 
IP3. The conforming amendment would remove the current licensee from 
the facility operating license and would add Entergy Nuclear IP3 and 
ENO in its place, as appropriate.
    The applicants propose that, after the sale and transfer of IP3 to 
Entergy Nuclear IP3, the Authority would retain all rights, title, and 
legal and beneficial interest in the decommissioning trust fund for the 
facility, while the trust fund would remain at all times committed to 
the decommissioning of IP3. The September 21, 2000, supplement to the 
application, filed by the Authority on behalf of itself and the other 
transfer applicants, includes the following proposals and commitments 
relating specifically to the Authority's retention of the 
decommissioning trust fund for IP3:
    (1) The Authority will waive any right to deny, contest or 
challenge the NRC's jurisdiction over the Authority with respect to IP3 
to the extent that there may arise in the future any matter warranting 
action by the NRC to ensure compliance with the NRC's decommissioning 
requirements regarding the disposition and use of the amounts 
accumulated in the decommissioning trust fund and retained by the 
Authority.
    (2) Upon the transfer of IP3, and pursuant to Section 7 of the 
decommissioning agreement between Entergy Nuclear IP3, Entergy Nuclear, 
Inc., and the Authority, Entergy Nuclear IP3 shall have the sole 
discretion to permanently cease operations of IP3. For purposes of 
compliance with NRC requirements, by operation of the transfer Entergy 
Nuclear IP3 and ENO shall have sole responsibility for decommissioning 
IP3, and the Authority's responsibility under Commission jurisdiction 
with respect to IP3 will be limited solely to the holding and 
disbursement of funds for the decommissioning of the unit. Entergy 
Nuclear IP3 and ENO will have control over all physical decommissioning 
activities. The Authority's waiver and decommissioning responsibility 
as described above only applies until the Authority transfers the 
decommissioning trust funds to Entergy Nuclear IP3 or until the 
decommissioning of IP3 has been completed in accordance with NRC 
regulations and guidance, whichever shall first occur.
    In addition, the November 3, 2000, supplement to the application 
proposes that the relevant trust agreement will provide that the 
provisions or purpose of the trust agreement may be enforced by the NRC 
against the Authority and the trustee with respect to the disbursement 
of the trust funds to the extent necessary to ensure compliance with or 
satisfaction of the NRC's decommissioning requirements.
    Approval of the transfer of the facility operating license and the 
conforming license amendment was requested by PASNY, Entergy Nuclear 
IP3, and ENO, pursuant to 10 CFR 50.80 and 50.90. Notice of the request 
for approval and an opportunity to request a hearing or to submit 
written comments was published in the Federal Register on June 28, 2000 
(65 FR 39954). Pursuant to such notice, the Commission received a 
hearing request dated July 14, 2000, from the Nuclear Generation 
Employees Association and William Carano, Thomas Pulcher, and Richard 
Wiese, Jr.; a hearing request dated July 17, 2000, from the Utility 
Workers Union of America, AFL-CIO, Local 1-2; a hearing request dated 
July 26, 2000, from the Town of Cortlandt Manor, New York, and the 
Hendrick Hudson School District; a hearing request dated July 31, 2000, 
from the County of Westchester, New York; and a hearing request dated 
July 31, 2000, from the Citizens Awareness Network. These requests are 
currently pending before the Commission.
    Pursuant to 10 CFR Sec. 2.1316, during the pendency of a hearing, 
the staff is expected to promptly proceed with the approval or denial 
of license transfer requests consistent with the staff's findings in 
its safety evaluation. Notice of the staff's action shall be promptly 
transmitted to the Presiding Officer and parties to the proceeding. 
Commission action on the pending hearing requests is being handled 
independently of this action.
    Under 10 CFR 50.80, no license, or any right thereunder, shall be 
transferred, directly or indirectly, through transfer of control of the 
license, unless the Nuclear Regulatory Commission shall give its 
consent in writing. After reviewing the information in the application 
and all supplements thereto (collectively, the application)

[[Page 70844]]

and other information before the Commission, and relying upon the 
representations and agreements contained in the application, the NRC 
staff has determined that Entergy Nuclear IP3 and ENO are qualified to 
be the holders of the license to the extent proposed in the 
application, and that the transfer of the license to Entergy Nuclear 
IP3 and ENO is otherwise consistent with applicable provisions of law, 
regulations, and orders issued by the Commission, subject to the 
conditions set forth below. The NRC staff has further found that the 
application for the proposed license amendment complies with the 
standards and requirements of the Atomic Energy Act of 1954, as 
amended, and the Commission's rules and regulations set forth in 10 CFR 
Chapter 1; the facility will operate in conformity with the 
application, the provisions of the Act and the rules and regulations of 
the Commission; there is reasonable assurance that the activities 
authorized by the proposed license amendment can be conducted without 
endangering the health and safety of the public and that such 
activities will be conducted in compliance with the Commission's 
regulations; the issuance of the proposed license amendment will not be 
inimical to the common defense and security or to the health and safety 
of the public; and the issuance of the proposed license amendment will 
be in accordance with 10 CFR Part 51 of the Commission's regulations 
and all applicable requirements have been satisfied. The findings set 
forth above are supported by the staff's safety evaluation dated 
November 9, 2000.

III.

    Accordingly, pursuant to Sections 161b, 161i, 161o, and 184 of the 
Atomic Energy Act of 1954, as amended, 42 USC Secs. 2201(b), 2201(i), 
2201(o), and 2234, and 10 CFR 50.80, It is hereby ordered that the 
transfer of the license as described herein and in the application to 
Entergy Nuclear IP3 and ENO is approved, subject to the following 
conditions:
    (1) Before the completion of the sale and transfer of IP3, Entergy 
Nuclear IP3 and ENO shall provide the Director, Office of Nuclear 
Reactor Regulation, satisfactory documentary evidence that they have 
obtained the appropriate amount of insurance required of licensees 
under 10 CFR Part 140 of the Commission's regulations.
    (2) For purposes of ensuring public health and safety, Entergy 
Nuclear IP3, upon the transfer of the IP3 license to it, shall provide 
decommissioning funding assurance for IP3 by the prepayment or 
equivalent method, to be held in a decommissioning trust fund for the 
facility, of no less than the amount required under NRC regulations at 
10 CFR 50.75. Any amount held in any decommissioning trust maintained 
by the Authority for IP3 after the transfer of the IP3 license to 
Entergy Nuclear IP3 may be credited towards the amount required under 
this paragraph.
    (3) If the assets of any decommissioning trust maintained by the 
Authority for IP3 are retained in such trust following the transfer of 
the IP3 license to Entergy Nuclear IP3 and ENO instead of being 
transferred to any trust established by Entergy Nuclear IP3, the 
Authority shall maintain the assets as retained in such trust in 
accordance with the application for the transfer of the IP3 license.
    (4) The decommissioning trust agreement shall provide that the use 
of assets in the decommissioning trust fund, in the first instance, 
shall be limited to the expenses related to decommissioning IP3 as 
defined by the NRC in its regulations and issuances, and as provided in 
the IP3 license and any amendments thereto.
    (5) The decommissioning trust agreement shall provide that no 
contribution to the decommissioning trust fund that consists of 
property other than liquid assets shall be permitted.
    (6) With respect to the decommissioning trust fund, investments in 
the securities or other obligations of the Authority, Entergy 
Corporation, Entergy Nuclear IP3, Entergy Nuclear FitzPatrick, LLC, 
ENO, or affiliates thereof, or their successors or assigns, shall be 
prohibited. Except for investments that replicate the composition of 
market indices or other non-nuclear-sector mutual funds, investments in 
any entity owning one or more nuclear plants is prohibited.
    (7) The decommissioning trust agreement shall provide that no 
disbursements or payments from the trust, other than for ordinary 
administrative expenses, shall be made by the trustee until the trustee 
has first given the NRC 30 days prior written notice of the payment. In 
addition, the trust agreement shall state that no disbursements or 
payments from the trust shall be made if the trustee receives prior 
written notice of objection from the Director, Office of Nuclear 
Reactor Regulation.
    (8) The decommissioning trust agreement shall provide that the 
trust agreement shall not be modified in any material respect without 
the prior written consent of the Director, Office of Nuclear Reactor 
Regulation.
    (9) The decommissioning trust agreement shall provide that the 
provisions or purpose of the trust agreement may be enforced by the NRC 
against the Authority and the trustee with respect to the disbursement 
of the trust funds to the extent necessary to ensure compliance with or 
satisfaction of the NRC's decommissioning requirements. The NRC shall 
not be a beneficiary of the trust or of any of the trust funds, unless 
required by law to be so for the sole purpose of enforcing the 
provisions or purpose of the trust agreement as set forth above.
    (10) Article VI of the decommissioning trust agreement shall 
require that, notwithstanding the provision of Section 6.01(ii)(a) of 
the current decommissioning trust agreement, PASNY may not terminate 
any fund established under the Master Trust for IP3 except after 
requesting and obtaining written consent from the Director, Office of 
Nuclear Reactor Regulation, or the Director, Office of Nuclear 
Materials Safety and Safeguards, as appropriate.
    (11) Entergy Nuclear Indian Point 3, or its successors or assigns, 
shall take no action that would adversely affect any contract between 
it and the Authority for the Authority's eventual payment of 
decommissioning funds from the trust.
    (12) Entergy Nuclear Indian Point 3, or its successors or assigns, 
shall inform the NRC within 30 days of any adverse developments with 
respect to the Authority's ownership of the decommissioning trust that 
could reasonably be expected to lead to a significant diminution of 
funds available for decommissioning IP3.
    (13) The appropriate section of the decommissioning trust agreement 
shall provide that the trustee, investment advisor, or anyone else 
directing the investments made in the trust shall adhere to a ``prudent 
investor'' standard, as specified in 18 CFR 35.32(a)(3) of the Federal 
Energy Regulatory Commission's regulations.
    (14) The Authority shall waive any right to deny, contest or 
challenge the NRC's jurisdiction over the Authority with respect to IP3 
to the extent that there may arise in the future any matter warranting 
action by the NRC to ensure compliance with the NRC's decommissioning 
requirements regarding the disposition and use of the amounts 
accumulated in the decommissioning trust fund and retained by the 
Authority, and remain subject to the Commission's jurisdiction under 
Section 161 of the Atomic Energy Act to issue orders to protect health 
and to minimize danger to life or property regarding any and all 
matters

[[Page 70845]]

concerning compliance with the Commission's decommissioning 
requirements regarding the disposition and use of the amounts 
accumulated in the decommissioning trust fund and retained by the 
Authority, until such time as the Authority transfers the 
decommissioning trust fund to Entergy Nuclear IP3 or the 
decommissioning of IP3 has been completed in accordance with NRC 
regulations and guidance, whichever occurs first.
    (15) Entergy Nuclear IP3 shall take all necessary steps to ensure 
that the decommissioning trust is maintained in accordance with the 
application for the transfer of the license for IP3 and the 
requirements of this Order approving the transfer, and consistent with 
the safety evaluation supporting this Order.
    (16) Entergy Nuclear IP3 and ENO shall take no action to cause 
Entergy Global Investments, Inc. or Entergy International Ltd. LLC, or 
their parent companies to void, cancel, or modify the $70 million 
contingency commitment to provide funding for IP3 as represented in the 
application, without the prior written consent of the Director, Office 
of Nuclear Reactor Regulation.
    (17) After receiving all required regulatory approvals of the 
transfer of IP3, the transfer applicants shall immediately inform the 
Director, Office of Nuclear Reactor Regulation, in writing of such 
receipt, and state therein the closing date of the sale and transfer of 
IP3. This notice shall be given to the Director, Office of Nuclear 
Reactor Regulation at least three business days before the closing date 
of the sale and transfer of IP3. If the transfer of the license is not 
completed by November 1, 2001, this Order shall become null and void, 
provided, however, on written application and for good cause shown, 
this date may be extended.
    It is further ordered that, consistent with 10 CFR 2.1315(b), a 
license amendment that makes changes, as indicated in Enclosure 2 to 
the cover letter forwarding this Order, to conform the license to 
reflect the subject license transfer is approved. The amendment shall 
be issued and made effective at the time the proposed license transfer 
is completed.
    This Order is effective upon issuance.
    For further details with respect to this Order, see the initial 
application submitted under cover letters dated May 11 and May 12, 
2000, and supplements dated June 13, June 16, July 14, September 21, 
October 26, and November 3, 2000, and the safety evaluation dated 
November 9, 2000, which are available for public inspection at the 
NRC's Public Document Room located at One White Flint North, 11555 
Rockville Pike (first floor), Rockville, Maryland, and are accessible 
electronically through the ADAMS Public Electronic Reading Room link at 
the NRC Web site (http://www.nrc.gov).

    Dated at Rockville, Maryland, this 9th day of November 2000.
    For the Nuclear Regulatory Commission.
Samuel J. Collins,
Director, Office of Nuclear Reactor Regulation.
[FR Doc. 00-30283 Filed 11-27-00; 8:45 am]
BILLING CODE 7590-01-P