[Federal Register Volume 82, Number 246 (Tuesday, December 26, 2017)]
[Notices]
[Pages 61040-61043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27682]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 50-271; NRC-2015-0157]


Entergy Nuclear Operations, Inc.; Vermont Yankee Nuclear Power 
Station

AGENCY: Nuclear Regulatory Commission.

ACTION: Final environmental assessment and finding of no significant 
impact; issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing a 
final environmental assessment (EA) and finding of no significant 
impact (FONSI) regarding the issuance of two exemptions in response to 
a January 6, 2015 request from Entergy Nuclear Operations, Inc. 
(Entergy or the licensee), on behalf of the owners of the Vermont 
Yankee Nuclear Power Station (VY). The exemptions allow the licensee to 
use funds from the VY decommissioning trust fund (the Trust) for 
irradiated fuel management activities.

DATES: The EA and FONSI referenced in this documents are available on 
December 26, 2017.

ADDRESSES: Please refer to Docket ID NRC-2015-0157 when contacting the 
NRC about the availability of information regarding this document. You 
may obtain publicly-available information related to this document 
using any of the following methods:
     Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2015-0157. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions, contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and 
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS, 
please contact the NRC's Public Document Room (PDR) reference staff at 
1-800-397-4209, 301-415-4737, or by email to [email protected]. The 
ADAMS accession number for each document referenced (if it is available 
in ADAMS) is provided the first time that it is mentioned in this 
document.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Jack D. Parrott, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001; telephone: 301-415-6634; email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Introduction

    On June 23, 2015 (80 FR 35992), the NRC issued exemptions from 
sections 50.82(a)(8)(i)(A) and 50.75(h)(1)(iv) of title 10 of the Code 
of Federal Regulations (10 CFR) to Entergy, for VY's Renewed Facility 
Operating License No. DPR-28. The VY facility is located in Windham 
County, Vermont. The licensee requested the exemptions by letter dated 
January 6, 2015 (ADAMS Accession No. ML15013A171). The exemptions allow 
the licensee to use funds from the Trust for irradiated fuel management 
activities, in the similar manner that funds from the Trust are used 
under 10 CFR 50.82(a)(8) for decommissioning activities. As explained 
below, although the exemptions also exempted VY from the regulatory 
requirement for prior notification to the NRC of disbursements from the 
Trust for irradiated fuel management activities, the licensee is still 
required to provide such prior notification to the NRC because of a 
separate requirement in the VY Renewed Facility Operating License.
    At the time of issuance, the NRC's approval of the exemptions 
referenced the categorical exclusion criteria under 10 CFR 
51.22(c)(25). However, on November 4, 2015, the State of Vermont, the 
Vermont Yankee Nuclear Power Corporation, and Green Mountain Power 
Corporation (together, Petitioners) filed a petition (ADAMS Accession 
No. ML16137A554) with the Commission that, in part, challenged the NRC 
staff's use of a categorical exclusion in granting the exemption 
request. The Commission, in their October 27, 2016 decision on the 
petition (ADAMS Accession No. ML16301A083), found that the exemptions 
were ineligible for a categorical exclusion under the National 
Environmental Policy Act (NEPA), and directed the staff to conduct an 
EA to examine the environmental impacts, if any, associated with the 
exemptions. Therefore, consistent with Commission direction and with 10 
CFR 51.21, the NRC prepared a draft EA to document its environmental 
review for the exemption request, and published the draft EA for 
comment on March 8, 2017 (82 FR 13015). Comments were received from the 
Petitioners on April 7, 2017 (ADAMS Accession No. ML17107A145). After 
consideration of those comments, the staff has prepared this final EA. 
Based on the results of this final EA, the NRC has determined that it 
is not necessary to prepare an environmental impact statement and is 
therefore issuing this final FONSI.

II. Final Environmental Assessment

Description of the Action

    The exemptions requested by Entergy on January 6, 2015, and granted 
by the NRC on June 23, 2015, exempt Entergy from the requirements set 
forth in 10 CFR 50.82(a)(8)(i)(A) and 50.75(h)(1)(iv). Specifically, 
the exemptions allow Entergy to use funds from the Trust for irradiated 
fuel management activities, not associated with radiological 
decommissioning.

Need for the Action

    By letter dated January 12, 2015 (ADAMS Accession No. ML15013A426), 
Entergy informed the NRC that it had permanently ceased power 
operations at VY and that the VY reactor vessel had been permanently 
defueled.
    In its January 6, 2015 exemption request, Entergy stated that it 
needed access to the funds in the Trust, in excess of those funds 
needed for radiological decommissioning, to support irradiated fuel 
management activities not associated with radiological decommissioning. 
As required by 10 CFR 50.82(a)(8)(i)(A), decommissioning trust funds 
may be used by a licensee if the withdrawals are for expenses for 
legitimate decommissioning activities consistent with the definition of 
decommissioning in 10 CFR 50.2. This definition addresses radiological 
decommissioning and does not include activities associated with 
irradiated fuel management. Similarly, the requirements of 10 CFR 
50.75(h)(1)(iv) restrict decommissioning trust fund disbursements 
(other than for payments

[[Page 61041]]

of ordinary administrative costs and incidental expenses of the fund) 
to decommissioning expenses until final decommissioning has been 
completed. Therefore, Entergy needed exemptions from 10 CFR 
50.82(a)(8)(i)(A) and 50.75(h)(1)(iv) to allow the use of funds from 
the Trust for irradiated fuel management activities.

Environmental Impacts of the Action

    The exemptions are of a financial nature and allow Entergy to use 
funds from the Trust to pay for irradiated fuel management activities. 
The exemptions do not authorize any additional regulatory or land-
disturbing activities, but do allow Entergy to finance irradiated fuel 
management activities, which support decommissioning.
    In granting the exemptions, the NRC staff performed an independent 
analysis of the Trust and confirmed that the existing funds, planned 
future contributions, and projected earnings of the Trust provide 
reasonable assurance of adequate funding to complete all NRC required 
decommissioning activities and to conduct irradiated fuel management. 
Consequently, the staff concluded that application of the requirements 
that funds from the Trust only be used for decommissioning activities 
and not for irradiated fuel management was not necessary to provide 
reasonable assurance that adequate funds will be available for the 
radiological decommissioning of VY.
    The staff conclusion is also supported by the fact that the 
licensee has a comprehensive, regulation-based decommissioning funding 
oversight program to provide reasonable assurance that sufficient 
funding will be available for the radiological decommissioning of VY. 
After submitting its site-specific Decommissioning Cost Estimate as 
required by 10 CFR 50.82(a)(8)(iii), and until completing its final 
radiation survey and demonstrating that residual radioactivity has been 
reduced to a level that permits termination of its license as required 
by 10 CFR 50.82(a)(11), the licensee is required by 10 CFR 
50.82(a)(8)(v) to annually submit to the NRC a financial assurance 
status report. The report must include, among other things, amounts 
spent on decommissioning, the remaining Trust balance, and estimated 
costs to complete radiological decommissioning. If the remaining Trust 
balance, plus earnings on such funds calculated at not greater than a 2 
percent real rate of return, plus any other financial assurance methods 
being relied upon, does not cover the estimated costs to complete 
radiological decommissioning, 10 CFR 50.82(a)(8)(vi) requires that 
additional financial assurance to cover the estimated costs to complete 
radiological decommissioning must be provided. These annual reports 
provide a means for the NRC to monitor the adequacy of the funding 
available for the radiological decommissioning of VY notwithstanding 
the exemptions allowing Entergy to use funds from the Trust for 
irradiated fuel management activities.
    Entergy also requested an exemption from the 10 CFR 50.75(h)(1)(iv) 
requirement that no disbursements may be made from the Trust until 
written notice of the intention to make the disbursement has been given 
to the NRC at least 30 working days before the date of the intended 
disbursement, except that notification is not required after 
decommissioning has begun and withdrawals are made under 10 CFR 
50.82(a)(8). The NRC granted this exemption. However, the granting of 
this exemption did not relieve Entergy from a requirement for prior 
notification of disbursements of funds from the Trust for irradiated 
fuel management activities because of additional language in the VY 
Renewed Facility Operating License and the VY Master Decommissioning 
Trust Agreement. Specifically, in accordance with the VY Renewed 
Facility Operating License (ADAMS Accession No. ML052720265), Condition 
3.J.a.(iii), the decommissioning trust agreement must 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 payment. 
Article IV, Section 4.05, of the VY Master Decommissioning Trust 
Agreement (ADAMS Accession No. ML15111A086), by and between Entergy 
Nuclear Vermont Yankee, LLC, and The Bank of New York Mellon as 
Trustee, provides that no disbursements or payments shall be made by 
the Trustee, other than administrative expenses, until the Trustee has 
first given the NRC 30 days prior written notice of payment. Although 
Entergy had submitted a September 4, 2014 license amendment request to 
delete License Condition 3.J.(a) and thus remove the prior notification 
requirement (ADAMS Accession No. ML14254A405), Entergy withdrew this 
license amendment request on September 22, 2015 (ADAMS Accession Nos. 
ML15267A074 and ML15265A583). Therefore, License Condition 3.J.a.(iii) 
remains in effect and, despite the granting of the exemptions, VY 
remains subject to a prior notification requirement. Similar to the 
annual financial assurance status reports, prior notifications provide 
a means for the NRC to monitor the adequacy of the funding available 
for the radiological decommissioning of VY notwithstanding the 
exemptions allowing Entergy to use funds from the Trust for irradiated 
fuel management activities.
    The environmental impacts of decommissioning have been generically 
evaluated by the NRC and documented in NUREG-0586, Supplement 1, 
Generic Environmental Impact Statement [GEIS] on Decommissioning of 
Nuclear Facilities (Decommissioning GEIS). Entergy's Post-Shutdown 
Decommissioning Activity Report (PSDAR) (ADAMS Accession No. 
ML14357A110) discussed that the impacts from the planned 
decommissioning activities at VY are less than and bounded by the 
impacts considered in the Decommissioning GEIS and NUREG-1496, Generic 
Environmental Impact Statement in Support of Rulemaking on Radiological 
Criteria for License Termination of NRC-Licensed Nuclear Facilities. 
The NRC staff found that the PSDAR contained the required information, 
including a discussion that provides the reasons for concluding that 
the environmental impacts associated with the decommissioning 
activities at VY will be bounded by previous analyses (ADAMS Accession 
No. ML15343A210).
    The exemptions do not authorize Entergy to perform new land-
disturbing activities that could affect land use, soils and geology, 
water resources, ecological resources, or historic and cultural 
resources. The exemptions do not authorize Entergy to conduct 
additional regulatory activities, outside those already licensed by the 
NRC; therefore, there are no incremental effects to air quality, 
traffic and transportation, socioeconomics, environmental justice, or 
accidents. The exemptions only change the source of funds allowed for 
irradiated fuel management activities. This will not increase the 
probability or consequences of accidents and, as a result of the 
exemptions, there are no changes in the types or amounts of effluents 
that are, or may be, released offsite. Entergy must continue to comply 
with all appropriate NRC regulations related to occupational and public 
radiation exposure and thus the exemptions will not result in an 
increase to occupational or public doses. Finally, Entergy is required 
to maintain adequate funding for the radiological decommissioning of VY 
and to provide information regarding this funding to the NRC. 
Accordingly,

[[Page 61042]]

the NRC concludes that there are no potential incremental environmental 
impacts as a result of the granted exemptions.

Environmental Impacts of the Alternatives to the Action

    As an alternative to the action, the NRC staff could have denied 
Entergy's exemption request. Denial of the exemption request would have 
resulted in Entergy using funds from the Trust only for radiological 
decommissioning and not also for irradiated fuel management activities. 
The environmental impacts of this alternative would be substantively 
the same as the environmental impacts for granting the exemption 
request because there are no potential incremental environmental 
impacts as a result of granting the exemption request. Therefore, the 
environmental impacts of the alternative to the action would be the 
same as those already considered by the previous environmental 
analyses.

Alternative Use of Resources

    The action does not involve the use of any different resources than 
those previously considered.

Agencies and Persons Consulted

    The NRC issued for public comment a draft of the EA and FONSI in 
the Federal Register on March 8, 2017 (82 FR 13015). Comments were 
received from the Petitioners on April 7, 2017 (ADAMS Accession No. 
ML17107A145).

Discussion of Comments

    The NRC staff has summarized the Petitioners' comments and has 
responded to them below.
    Petitioners comment 1. NRC staff's EA and FONSI fail to address 
numerous factors that trigger the need to prepare an Environmental 
Impact Statement (EIS). NRC should withdraw the EA and FONSI, and the 
approval of the exemption request granting approval to use the 
decommissioning trust fund for spent fuel management, and proceed to 
prepare an EIS that, among other things, addresses these comments and 
brings NRC's actions into compliance with NEPA.
    NRC response. The NRC disagrees with this comment. The NRC has 
evaluated the environmental impacts of the exemptions in its EA and 
concluded that the exemptions did not, and will not, have a significant 
effect on the quality of the human environment. Accordingly, the NRC 
has decided not to prepare an EIS for the action and is issuing a 
FONSI. Therefore, the NRC staff will not withdraw the draft EA and 
FONSI to prepare an EIS nor will the NRC staff withdraw the approval of 
the exemption request. The staff's responses to the Petitioners' 
comments that the EA and FONSI fail to address numerous factors 
triggering the need to prepare an EIS are described below.
    Petitioners comment 1.a. The sale of VY to NorthStar Nuclear 
Decommissioning Company, LLC (NorthStar), and its resulting changes to 
the plan, schedule, and cost estimate for decommissioning, is a 
reasonably foreseeable event that must be considered in the EA. The NRC 
ignored the pending sale of VY to NorthStar, and that sale's resulting 
changes to the plan, schedule, and cost estimate for decommissioning 
VY.
    NRC response. The NRC disagrees with this comment. The NRC is aware 
of the possible sale of VY to NorthStar, and that the sale may result 
in changes to the plan, schedule, and cost estimate for 
decommissioning. However, the NRC does not consider the sale reasonably 
foreseeable for purposes of this EA. The sale transaction is still 
pending regulatory review and approval by both the Vermont Public 
Service Board and the NRC. Pursuant to 10 CFR 50.80, the VY license may 
not be transferred, either voluntarily or involuntarily, directly or 
indirectly, through transfer of control of the license to any person, 
unless the NRC gives its consent in writing. The license transfer 
request related to the pending sale of VY to NorthStar is currently 
under NRC review. For the NRC to evaluate the exemption request as if 
approval of the license transfer request were ``reasonably 
foreseeable'' would suggest that the NRC is inappropriately pre-judging 
the merits of the license transfer request that is still under the 
agency's review. Thus, the NRC does not consider it ``reasonably 
foreseeable'' that the license transfer request will be approved by the 
NRC and the Vermont Public Service Board. Accordingly, the NRC will not 
consider the possible sale of VY to NorthStar for purposes of this EA. 
Furthermore, pursuant to 10 CFR 50.33(k), the license transfer request 
is required to state information in the form of a report indicating how 
reasonable assurance will be provided that funds will be available to 
decommission the facility.
    Petitioners comment 1.b. The EA fails to consider the reasonably 
foreseeable possibility of a shortfall in the Trust resulting from 
allowing $225 million or more from the Trust to be diverted to non-
decommissioning expenses. By allowing $225 million or more to be 
diverted from the Trust for non-decommissioning expenses, the NRC has 
greatly increased the chances of a shortfall in the Trust that could 
leave the site radiologically contaminated.
    NRC response. The NRC disagrees with this comment. In its 
evaluation of the underlying exemption request (80 FR 35992), the NRC 
staff performed an independent analysis of the Trust and confirmed that 
the existing funds, planned future contributions, and projected 
earnings of the Trust provide reasonable assurance of adequate funding 
to complete all NRC required decommissioning activities and to conduct 
irradiated fuel management in accordance with the VY Irradiated Fuel 
Management Plan and PSDAR.
    The NRC's regulations in 10 CFR 50.82 provide for the oversight of 
decommissioning funding until decommissioning is complete and the 
license is terminated. At all times, the licensee remains responsible 
to assure that sufficient funding remains available for 
decommissioning. Once a licensee has permanently ceased operations, it 
is required to report its decommissioning funding status on an annual 
basis. In these submittals, the licensee is required to report any 
differences between the estimated costs to decommission the site, and 
the amount of decommissioning funding available or anticipated at that 
time, including plans for making up any identified shortfalls. 
Independent of these submittals, the NRC staff will validate the 
licensee's reporting of this information and review the Trust status 
against any new information regarding radiological contamination at the 
site and the ability to meet the requirements for release of the site 
for unrestricted use. Any unanticipated Trust shortfalls must be 
covered by the licensee. Should the licensee fail to cover a shortfall, 
the NRC may pursue enforcement methods as determined to be appropriate.
    Given the NRC's regulatory framework for decommissioning funding 
assurance and the NRC's reasonable assurance findings in its evaluation 
of the exemption request, the NRC does not consider a shortfall in the 
Trust resulting from the exemptions to be reasonably foreseeable. 
Therefore, the Petitioners' comments suggesting that the NRC has 
greatly increased the chances of a shortfall in the Trust that could 
leave the site radiologically contaminated are unsupported and 
speculative.
    Petitioners comment 1.c. The EA fails to consider cumulative 
impacts resulting from all of the non-decommissioning expenses Entergy 
withdraws from the Trust. The EA looks only at one of Entergy's uses of 
the Trust for a non-decommissioning expense (spent fuel management). 
NRC staff

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simply provided conclusory statements supporting its position.
    NRC response. The NRC disagrees with this comment. The EA 
appropriately considered all withdrawals from the decommissioning trust 
that would be permissible under the NRC's regulations and under the 
exemptions. Specifically, the EA considered withdrawals for 
decommissioning expenses, which are permitted by the NRC's regulations, 
and withdrawals for spent fuel management expenses, which are permitted 
by the exemptions. The EA did not consider withdrawals for any non-
decommissioning expenses beyond spent fuel management expenses, because 
such withdrawals are prohibited by the NRC's regulations and are not 
allowed by the exemptions. In addition, this scope of the EA is 
appropriate because the NRC staff reviews the status of decommissioning 
funds annually during decommissioning to ensure that adequate funds for 
decommissioning are available and that withdrawals from the 
decommissioning fund are for approved purposes. Finally, the cumulative 
impacts of decommissioning were considered in the Decommissioning GEIS. 
Therefore, the EA's consideration of impacts was appropriate.
    Petitioners comment 1.d. The EA fails to consider reasonable 
alternatives. The only alternative that the NRC staff evaluated was 
denying Entergy's exemption request. The NRC staff failed to evaluate 
other alternatives, such as granting conditional approval.
    NRC response. The NRC disagrees that the EA fails to consider 
reasonable alternatives. The exemptions at issue here allow Entergy to 
use funds from the Trust for the non-decommissioning expense of 
irradiated fuel management activities. This EA evaluates denying the 
exemption request as a reasonable alternative to the action of granting 
the exemption request. Consistent with the NRC's regulations, imposing 
conditions on a licensee is typically done through the license 
amendment process and not through the exemption process; therefore, the 
NRC disagrees that it should have also evaluated as a reasonable 
alternative granting conditional approval of the exemption request.
    Petitioners comment 2. The publication of the EA after the relevant 
decision has already been made does not comply with NEPA's requirement 
that the analysis occur before a decision is made. The NRC approved the 
exemption request on June 23, 2015, but published the draft EA and 
FONSI for comment on March 8, 2017. The NRC staff relies on the 
Decommissioning Financial Status Report from March 30, 2015 to support 
the EA, when it had a more recent report from March 30, 2016.
    NRC response. The NRC disagrees with this comment. In CLI-16-17, 
the Commission directed the NRC staff ``to conduct an environmental 
assessment to examine the environmental impacts, if any, associated 
with the exemption.'' Although the Commission declined to reverse the 
staff's approval of the exemption request, it specified that if the 
staff's environmental review ``results in a determination of 
significant impacts, the Staff should promptly notify [the Commission] 
and, at that time, [the Commission] may reconsider whether the 
exemption should be stayed or vacated.''
    The March 30, 2015 Decommissioning Financial Status Report (ADAMS 
Accession No. ML15092A141) was not needed to support the EA and neither 
was the more recent report from March 30, 2016 (ADAMS Accession No. 
ML16090A355). The supporting analysis of the adequacy of the Trust to 
provide reasonable assurance of adequate funding to complete all NRC 
required decommissioning activities and to conduct irradiated fuel 
management is described in the June 23, 2015 Federal Register Notice of 
the issuance of the exemptions.

III. Finding of No Significant Impact

    Entergy proposed exemptions from 10 CFR 50.82(a)(8)(i)(A) and 
50.75(h)(1)(iv) to allow the licensee to use funds from the Trust for 
irradiated fuel management activities. The NRC granted the exemptions 
on June 23, 2015.
    Consistent with 10 CFR 51.21, the NRC conducted the EA for the 
exemptions included in Section II of this document and incorporated by 
reference into this finding. On the basis of this EA, the NRC concludes 
that the exemptions did not, and will not, have a significant effect on 
the quality of the human environment. Accordingly, the NRC has 
determined not to prepare an EIS for the action.

    Dated at Rockville, Maryland, this 19th day of December 2017.

    For the Nuclear Regulatory Commission.
Bruce Watson,
Chief, Reactor Decommissioning Branch, Division of Decommissioning, 
Uranium Recovery and Waste Programs, Office of Nuclear Material Safety 
and Safeguards.
[FR Doc. 2017-27682 Filed 12-22-17; 8:45 am]
 BILLING CODE 7590-01-P