UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

Jeff Baran 

 

In the Matter of 

 

ENTERGY NUCLEAR VERMONT YANKEE, LLC, 

and 

ENTERGY NUCLEAR OPERATIONS, INC. 

 Docket No. 50-271 

(Vermont Yankee Nuclear Power Station) 

 

CLI-16-17 

MEMORANDUM AND ORDER 

The State of Vermont, the Vermont Yankee Nuclear Power Corporation, and Green 

Mountain Power Corporation (together, Petitioners) seek review of, and a discretionary hearing 

on, a number of issues associated with use of decommissioning trust funds at Vermont Yankee 

Nuclear Power Station.1

As discussed below, we have reviewed all the filings before us and considered 

Petitioners’ claims in detail. We conclude that an adjudicatory hearing is not appropriate in the 

circumstances presented here; Petitioners have not identified, and we do not otherwise find, a 

de facto license amendment that would trigger an opportunity for a hearing under the Atomic 

Energy Act of 1954, as amended (AEA). Additionally, we decline to convene a discretionary 

 

1 See Petition of the State of Vermont, the Vermont Yankee Nuclear Power Corporation, and 

Green Mountain Power Corporation for Review of Entergy Nuclear [Operations], Inc.’s Planned 

Use of the Vermont Yankee Nuclear Decommissioning Trust Fund (Nov. 4, 2015) (Petition). 
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hearing to perform the various reviews requested by Petitioners. Petitioners’ concerns about 

the use of decommissioning trust funds largely raise oversight matters that are appropriately 

addressed via requests for enforcement action under 10 C.F.R. § 2.206. 

Petitioners also request a comprehensive environmental analysis of a variety of activities 

related to the decommissioning of Vermont Yankee by Entergy Nuclear Vermont Yankee, LLC 

and Entergy Nuclear Operations, Inc. (together, Entergy). For the reasons discussed below, we 

deny this request in all respects save one. Because we find Entergy’s exemption request for 

use of decommissioning funds for spent fuel management to be ineligible for a categorical 

exclusion under our rules implementing the National Environmental Policy Act (NEPA), we 

direct the Staff to perform an environmental review of that request. 

 BACKGROUND 

We begin our decision with a brief overview of our regulations governing 

decommissioning funding, the requirements in place for Vermont Yankee, and recent activities 

that gave rise to the petition.

 Regulations Governing Decommissioning of Nuclear Power Plants 

Our decommissioning regulations require that applicants and licensees provide 

“reasonable assurance that funds will be available for the decommissioning process.”2 One 

method by which a licensee may demonstrate reasonable assurance is by setting up a 

decommissioning trust fund that is “segregated from licensee assets” and “in which the total 

 

2 10 C.F.R. § 50.75(a). 
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amount of funds would be sufficient to pay decommissioning costs at the time permanent 

termination of operations is expected.”3

The decommissioning process begins when the licensee certifies to the NRC Staff that it 

has permanently ceased operations and it has permanently removed fuel from the reactor 

vessel.4 Our regulations require a licensee to submit a post-shutdown decommissioning 

activities report (PSDAR) prior to or within two years following the permanent cessation of 

operations.5 The Staff will then notice receipt of the PSDAR, make the PSDAR available for 

public comment, and hold a public meeting on its contents.6 This process does not give rise to 

a hearing opportunity.7

Ninety days after the Staff receives the PSDAR—assuming the Staff does not object to 

its contents—the licensee may begin “major decommissioning activities.”8 Pursuant to 

 

3 Id. § 50.75(e)(1)(ii). 

4 Id. § 50.82(a)(1). The regulations define “decommission” as “to remove a facility or site safely 

from service and reduce residual radioactivity to a level that permits (1) release of the property 

for unrestricted use and termination of the license; or (2) release of the property under restricted 

conditions and termination of the license.” Id. § 50.2. 

5 Id. § 50.82(a)(4)(i). 

6 Id. § 50.82(a)(4)(ii). The Staff presents comments received at the public meeting held on the 

PSDAR and makes available to the public a written transcript of the meeting. See “Standard 

Format and Content for Post-Shutdown Decommissioning Activities Report,” Regulatory Guide 

1.185, rev. 1 (June 2013), at 4 (ADAMS Accession No. ML13140A038) (Regulatory Guide 

1.185). 

7 Ultimately, the licensee must submit a license amendment request in order to terminate its 

operating license; accordingly, at that stage, there is an opportunity for interested persons to 

request a hearing. 10 C.F.R. § 50.82(a)(9). 

8 Id. § 50.82(a)(5). A “major decommissioning activity” for a nuclear power plant such as 

Vermont Yankee is defined as “any activity that results in permanent removal of major 

radioactive components, permanently modifies the structure of the containment, or results in 
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10 C.F.R. § 50.82(a)(6), a licensee may not perform decommissioning activities that would (1) 

foreclose the release of the site for possible unrestricted use, (2) result in significant 

environmental impacts not previously reviewed, or (3) result in the lack of reasonable assurance 

that adequate funds will be available for decommissioning. 

The PSDAR must include a site-specific decommissioning cost estimate.9 Generally, 

once the licensee submits its decommissioning cost estimate, it is allowed “access to the 

balance of the [decommissioning] trust fund monies for the remaining decommissioning 

activities” with “broad flexibility.”10 But the regulations limit the use of a decommissioning trust 

fund in three ways: 

(A) The withdrawals [must be] for expenses for legitimate decommissioning 

activities consistent with the definition of decommissioning in [10 C.F.R.] 

§ 50.2; 

(B) The expenditure [must] not reduce the value of the decommissioning trust 

below an amount necessary to place and maintain the reactor in a safe 

storage condition if unforeseen conditions or expenses arise; and 

(C) The withdrawals [must] not inhibit the ability of the licensee to complete 

funding of any shortfalls in the decommissioning trust needed to ensure the 

availability of funds to ultimately release the site and terminate the license.11

As an additional safeguard, the Staff monitors the licensee’s use of the decommissioning trust 

fund via its review of the licensee’s annual financial assurance status reports. These reports 

 

dismantling components for shipment containing greater than class C waste in accordance with 

[10 C.F.R. § 61.55].” Id. § 50.2. 

9 Id. § 50.82(a)(4)(i). 

10 See Decommissioning of Nuclear Power Reactors; Final rule, 61 Fed. Reg. 39,278, 39,285 

(July 29, 1996) (Decommissioning Final Rule). 

11 10 C.F.R. § 50.82(a)(8)(i). 
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include the amount spent on decommissioning activities, the amount remaining in the fund, and 

an updated estimate of the costs required to complete decommissioning.12 In the event of a 

shortfall between the remaining funds and the updated cost to complete decommissioning 

(discovered as a result of these annual status reports or otherwise), the licensee must provide 

additional financial assurance.13

Historically, rate regulators exercised oversight of decommissioning trust agreements. 

In view of deregulation, in 2002 we revised our regulations to take a more active oversight role 

over such agreements. The revisions were intended to provide “assurance that an adequate 

amount of decommissioning funds will be available for their intended purpose” at non-rateregulated facilities.14

As relevant here, the rules promulgated in 2002 provided licensees with the option of 

maintaining existing license conditions or following the new requirements: 

The provisions of [10 C.F.R. § 50.75(h)(1)-(3)] do not apply to any licensee that 

as of December 24, 2003, has existing license conditions relating to 

decommissioning trust agreements, so long as the licensee does not elect to 

amend those license conditions. If a licensee with existing license conditions 

relating to decommissioning trust agreements elects to amend those conditions, 

the license amendment shall be in accordance with the provisions of [10 C.F.R. 

§ 50.75(h)].15

 

12 Id. § 50.82(a)(8)(v). 

13 Id. § 50.82(a)(8)(vi). The determination whether a shortfall exists takes into account a twopercent annual real rate of return. Relatedly, a licensee is required to submit to the Staff annual 

reports regarding the status of its funding for irradiated fuel management, including a plan to 

obtain additional funds to cover any expected shortfalls. Id. § 50.82(a)(8)(vii). 

14 Decommissioning Trust Provisions; Final rule, 67 Fed. Reg. 78,332, 78,332 (Dec. 24, 2002). 

See generally 10 C.F.R. § 50.75(h)(1)-(3) (providing standards for managing the 

decommissioning trust fund). 

15 10 C.F.R. § 50.75(h)(5); see Minor Changes to Decommissioning Trust Fund Provisions; 

Direct final rule, 68 Fed. Reg. 65,386, 65,387 (Nov. 20, 2003). 
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In sum, a non-rate-regulated reactor licensee with decommissioning trust fund license 

conditions may elect either to maintain those conditions or to seek a license amendment to 

remove those conditions, in which case it would be subject to 10 C.F.R. § 50.75(h)(1)-(3).16 

These requirements likewise place restrictions on the management and use of the 

decommissioning trust fund. 

Vermont Yankee Nuclear Power Corporation, the prior owner and operator of Vermont 

Yankee, was a rate-regulated utility. In October 2001, prior to the 2002 revisions to the 

decommissioning requirements discussed above, it sought to transfer the Vermont Yankee 

license to the non-rate-regulated entities Entergy Nuclear Vermont Yankee, LLC, and Entergy 

Nuclear Operations, Inc. The Staff approved the transfer subject to several conditions related to 

the decommissioning trust fund, and these conditions were incorporated into the license.17 

Entergy retained the license conditions put in place at the time of the license transfer rather than 

electing to be governed by the 2002 regulations and thus, upon commencement of the events 

giving rise to the petition, decommissioning of the plant was not subject to 10 C.F.R. 

§ 50.75(h)(1)-(3). 

 

16 The revised regulations provide a streamlined process for licensees seeking license 

amendments to conform to the updated requirements. See 10 C.F.R. § 50.75(h)(4) (providing 

that a license amendment application that “does no more than delete specific license conditions 

relating to the terms and conditions of decommissioning trust agreements involves ‘no 

significant hazards consideration’”). 

17 See Order Approving Transfer of License for Vermont Yankee Nuclear Power Station from 

Vermont Yankee Nuclear Power Corporation to Entergy Nuclear Vermont Yankee, LLC, and 

Entergy Nuclear Operations, Inc., and Approving Conforming Amendment (May 17, 2002), encl. 

1, Order Approving Transfer of License and Conforming Amendment, at 3-6; encl. 3, Safety 

Evaluation (nonproprietary), at 8-9 (ML020390198). 
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 Procedural Posture 

In September 2014, Entergy submitted to the NRC a request to amend the Vermont 

Yankee operating license to delete the decommissioning trust fund license conditions.18 As 

discussed above, approval of this request would have required Entergy to follow 10 C.F.R. 

§ 50.75(h)(1)-(3) instead of the license conditions that were imposed upon the transfer of the 

plant to Entergy.19 Four months later, while its license amendment request was still pending, 

Entergy requested an exemption from 10 C.F.R. § 50.82(a)(8)(i)(A) to allow it to make 

withdrawals from the Vermont Yankee decommissioning trust fund for certain irradiated fuel 

management costs.20 The exemption request also sought to relieve Entergy from two of the 

requirements in 10 C.F.R. § 50.75(h)(1)(iv), which were to become applicable to Entergy (in 

place of its existing license conditions) upon issuance of the requested license amendment.21 

First, Entergy requested an exemption from the requirement that the decommissioning trust 

agreement provide that “disbursements ... from the trust ... [be] restricted to decommissioning 

expenses ... until final decommissioning has been completed.”22 Second, Entergy requested an 

 

18 Letter from Christopher J. Wamser, Site Vice President, Entergy Nuclear Operations, Inc., to 

NRC Document Control Desk (Sept. 4, 2014) (ML14254A405). 

19 The Staff published a notice of opportunity to request a hearing on the license amendment 

application. Biweekly Notice; Applications and Amendments to Facility Operating Licenses and 

Combined Licenses Involving No Significant Hazards Considerations, 80 Fed. Reg. 8355, 8656, 

8359 (Feb. 17, 2015). 

20 See Letter from Christopher J. Wamser, Site Vice President, Entergy Nuclear Operations, 

Inc., to NRC Document Control Desk (Jan. 6, 2015) (ML15013A171) (Exemption Request). 

21 Id. at 2. 

22 10 C.F.R. § 50.75(h)(1)(iv); see Exemption Request at 2. 
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exemption from the requirement that it provide thirty working days’ advance notice to the NRC 

of intended disbursements.23

The Staff approved the exemption request in June 2015.24 In so doing, the Staff 

determined that the exemption was eligible for a categorical exclusion and therefore required 

neither an environmental assessment (EA) nor an environmental impact statement (EIS) to 

comply with NEPA.25 Thereafter, Entergy was permitted to make withdrawals from the Vermont 

Yankee decommissioning trust fund for spent fuel management expenses because it was 

exempted from 10 C.F.R. § 50.82(a)(8)(i)(A). But it was still required to provide thirty-day 

notices of withdrawals for non-administrative expenses because the Staff had not yet granted 

the license amendment request subjecting Entergy to 10 C.F.R. § 50.75(h)(1)(iv); the license 

condition requiring such notices remained in effect.26

Vermont sought a hearing on Entergy’s license amendment request, which the Board 

granted.27 Shortly thereafter, Entergy moved to withdraw its license amendment request and to 

dismiss the proceeding.28 The Board granted the motion and imposed two conditions on the 

 

23 Exemption Request at 2. 

24 Entergy Nuclear Operations, Inc.; Vermont Yankee Nuclear Power Station, 80 Fed. Reg. 

35,992 (June 23, 2015) (Exemption Issuance); see 10 C.F.R. § 50.12 and section II.B., infra. 

25 Exemption Issuance, 80 Fed. Reg. at 35,994; see also 10 C.F.R. § 51.22(c)(25). 

26 See Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont 

Yankee Nuclear Power Station), LBP-15-24, 82 NRC 68, 100 (2015). 

27 See State of Vermont’s Petition for Leave to Intervene and Hearing Request (Apr. 20, 2015); 

State of Vermont’s Motion for Leave to File a New Contention Including the Proposed New 

Contention and to Add Additional Bases and Support to Existing Contentions I, III, and IV (July 

6, 2015); Vermont Yankee, LBP-15-24, 82 NRC at 104. 

28 See Entergy’s Motion to Withdraw its September 4, 2014 License Amendment Request (Sept. 

22, 2015) (Motion to Withdraw). 
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withdrawal: first, it directed Entergy to provide written notice to Vermont of any new license 

amendment application relating to the Vermont Yankee decommissioning trust fund at the time 

of the application.29 Second, it directed Entergy to specify in its thirty-day notices if any of the 

proposed disbursements are to be used for particular expenses.30

On November 4, 2015, Petitioners filed before us the instant petition seeking “a robust, 

comprehensive, and participatory review of Entergy’s use of the Vermont Yankee Nuclear 

Decommissioning Trust Fund.”31 Entergy and the Staff oppose the petition.32 The petition is not 

 

29 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont 

Yankee Nuclear Power Station), LBP-15-28, 82 NRC 233, 244 (2015). 

30 Id. Those expenses, which were challenged as part of one of Vermont’s contentions that was 

admitted, but not litigated, were: a five-million-dollar settlement payment, emergency 

preparedness costs, shipments of non-radiological asbestos waste, insurance, property taxes, 

and replacement of structures during SAFSTOR (e.g., a bituminous roof). Entergy Nuclear 

Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power 

Station), CLI-16-8, 82 NRC __, __ (June 2, 2016) (slip op. at 4 n.17); see Vermont Yankee, 

LBP-15-28, 82 NRC at 242. The Staff moved to vacate LBP-15-24, in which the Board had 

granted Vermont’s hearing request. See NRC Staff Motion to Vacate LBP-15-24 (Oct. 26, 

2015). We granted the Staff’s motion. Vermont Yankee, CLI-16-8, 82 NRC at __ (slip op. at 1). 

31 Petition at 1. 

32 Entergy’s Answer Opposing November 4, 2015 Petition Filed by the State of Vermont, 

Vermont Yankee Nuclear Power Corporation, and Green Mountain Power Corporation (Dec. 7, 

2015) (Entergy Answer); NRC Staff Answer to the Vermont Petition for Review of Entergy 

Nuclear [Operations], Inc.’s Planned Use of the Vermont Yankee Nuclear Decommissioning 

Trust Fund (Dec. 7, 2015) (Staff Answer); see Reply of the State of Vermont, the Vermont 

Yankee Nuclear Power Corporation, and Green Mountain Power Corporation in Support of 

Petition for Review of Entergy Nuclear [Operations], Inc.’s Planned Use of the Vermont Yankee 

Nuclear Decommissioning Trust Fund (Dec. 17, 2015) (Petitioners’ Reply). Entergy and the 

Staff request that we strike portions of Petitioners’ reply. Motion to Strike Portions of December 

17, 2015 Reply Filed by the State of Vermont, Vermont Yankee Nuclear Power Corporation, and 

Green Mountain Power Corporation (Dec. 28, 2015) (Entergy Motion to Strike); NRC Staff 

Motion to Strike Portions of the December 17, 2015 Reply of the State of Vermont, the Vermont 

Yankee Nuclear Power Corporation, and Green Mountain Power Corporation (Dec. 28, 2015) 

(Staff Motion to Strike). The Commonwealth of Massachusetts and the States of Connecticut 
- 10 - 

contemplated by our procedural rules and, as set forth below, Petitioners have not established 

that they have a right to an adjudicatory hearing pursuant to AEA Section 189a. with respect to 

any of the issues they have raised. We nonetheless have considered the petition and all related 

filings as a discretionary exercise of our inherent supervisory authority over agency 

proceedings,33 in large part because of the unusual posture of the matter, which concerns 

issues similar to those raised in a recent license amendment proceeding before the Board. 

 DISCUSSION 

Petitioners request review of a number of discrete issues. We consider each in turn 

below. 

 Use of the Decommissioning Trust Fund 

At the heart of the petition is Petitioners’ concern that Entergy plans to use the 

decommissioning trust fund for impermissible purposes and that such expenditures may lead to 

premature depletion of the fund, which could in turn result in risk to public health, safety, and the 

 

and New Hampshire filed a joint reply to Entergy’s and the Staff’s answers. See Reply of the 

Commonwealth of Massachusetts and the States of Connecticut and New Hampshire to NRC 

Staff’s and Entergy’s Answers to the Petition of the State of Vermont, the Vermont Yankee 

Nuclear Power Corporation, and Green Mountain Power Corporation for Review of Entergy 

Nuclear [Operations], Inc.’s Planned Use of the Vermont Yankee Nuclear Decommissioning 

Trust Fund (Dec. 17, 2015). Entergy seeks to strike the States’ Reply. Motion to Strike 

Impermissible December 17, 2015 Reply Filed by the Commonwealth of Massachusetts and the 

States of Connecticut and New Hampshire (Dec. 28, 2015). 

33 See, e.g., Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 

NRC 141, 158 (2011). Because we have reviewed the petition in our supervisory capacity, we 

need not—and do not—address a number of procedural arguments advanced by the litigants 

that would merit further discussion in a traditional adjudicatory setting, with one exception. In 

their motions to strike portions of Petitioners’ reply, both Entergy and the Staff request that, if we 

do not strike the requested material, we allow them an opportunity to respond. Entergy Motion 

to Strike at 5; Staff Motion to Strike at 5. Because we find that the record is sufficient to support 

our decision, no additional briefing was needed; we deny Entergy’s and the Staff’s requests. 
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environment.34 Petitioners argue in particular that Entergy’s planned use of the fund 

contravenes the terms of the Vermont Yankee operating license, NRC regulations, and the 

Master Trust Agreement.35 Additionally, Petitioners note that a shortfall in the fund may create 

an economic risk for Vermont taxpayers.36 Petitioners therefore request that we “review all of 

Entergy’s requests for withdrawals from the Decommissioning Fund, and prohibit Entergy from 

making future withdrawals for expenses that do not meet the NRC’s definition of 

decommissioning.”37

With regard to Petitioners’ general claim that Entergy’s proposed expenditures will 

prematurely deplete the fund, as explained above, we promulgated our regulations to ensure 

that licensees would retain adequate funding to complete decommissioning. Moreover, our 

ongoing oversight of Entergy’s compliance with our regulatory structure provides reasonable 

assurance that sufficient funds will be available to decommission Vermont Yankee in 

accordance with our regulations. As explained more fully below none of Petitioners’ specific 

challenges persuades us otherwise. 

 

34 Petition at 15. 

35 Id. at 12-13, 18-20, 23-25. Petitioners likewise contend that Entergy’s use of the fund 

contravenes Federal Energy Regulatory Commission (FERC) regulations and certain rulings of 

the Vermont Public Safety Board. Id. at 24-25, 30-31. We lack jurisdiction over these matters 

and therefore decline to consider these arguments. See PPL Susquehanna LLC (Susquehanna 

Steam Electric Station, Units 1 and 2), CLI-07-25, 66 NRC 101, 107 (2007) (denying an appeal 

claiming “that [the] NRC ought to concern itself with ... matters within the jurisdiction of other 

state and Federal agencies”); GPU Nuclear, Inc., Jersey Central Power & Light Co., and 

AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 

211 (2000) (clarifying that the proper forum for an argument regarding rate regulation is the 

FERC or a state board of public utilities). 

36 Petition at 16. 

37 Id. at 59. 
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We first address the terms of the license itself. License condition 3.J.a.iii provides as 

follows: 

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 [thirty] days prior 

written notice of payment. The decommissioning trust agreement shall further 

contain a provision that no disbursements or payments from the trust shall be 

made if the trustee receives prior written notice of objection from the Director of 

the Office of Nuclear Reactor Regulation.38

Additionally, license condition 3.J.a.iv states that “[t]he decommissioning trust agreement must 

provide that the agreement cannot be amended in any material respect without [thirty] days prior 

written notification to the Director of the Office of Nuclear Reactor Regulation.”39 Petitioners 

argue that Entergy’s disbursements from the trust without notification to the Staff and the use of 

these funds for purposes other than decommissioning violate the terms of the license and 

materially amend the decommissioning trust agreement specified in the license condition—the 

Master Trust Agreement. They further contend that these actions constitute a de facto license 

amendment and assert that this de facto license amendment triggers a hearing opportunity.40

As an initial matter, any unilateral action taken by Entergy—including a disbursement 

from the trust fund—cannot in and of itself constitute a de facto license amendment. We have 

 

38 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont 

Yankee Nuclear Power Station), Renewed Operating License No. DPR-28 (Mar. 21, 2011), at 7 

(ML092110054) (License). The decommissioning trust license conditions are reproduced as an 

appendix to this decision. 

39 Id.

40 See Petitioners’ Reply at 11-12 (“Entergy should not be permitted to contravene the terms of 

its license, and the Staff should not be permitted to tacitly approve such contraventions.”); 

Petition at 13 (“Entergy’s [disbursements from the decommissioning trust fund without thirty 

days’ prior written notice to the NRC and its amendment of the Master Trust Agreement] are in 

derogation of those license conditions.”). 
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made clear that unilateral “licensee action without an NRC approval of an increase in authority 

or alteration of the terms of the license does not constitute a de facto amendment.”41 And the 

NRC’s grant of an exemption from 10 C.F.R. § 50.82(a)(8)(i)(A)—“approving” the use of trust 

funds for a purpose other than decommissioning—does not amount to endorsement of conduct 

inconsistent with any provision of the Vermont Yankee license, including conditions 3.J.a.iii and 

3.J.a.iv. The license does not preclude exemptions from regulations. Thus, issuance of an 

exemption from our regulations does not mean, as Petitioners suggest, that the Staff has 

approved an amendment to the license.42 Petitioners have not established a right to a hearing 

with respect to their assertions about non-compliance with the license. Instead, Petitioners’ 

assertions that Entergy’s unilateral actions have contravened the terms of its license are 

properly raised through the enforcement process, as discussed below. 

We turn next to Petitioners’ assertions that Entergy has acted in violation of NRC rules. 

Petitioners argue that NRC rules prohibit the disbursement of decommissioning funds for certain 

costs that Entergy has included in its decommissioning cost estimate. Specifically, Petitioners 

object to Entergy’s inclusion of a five-million-dollar settlement payment, emergency 

preparedness costs (including legal fees), shipments of non-radiological asbestos waste, 

insurance, property taxes, and replacement of structures during the time Entergy maintains 

 

41 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-14, 81 

NRC 729, 735 (2015) (citing Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), 

CLI-14-11, 80 NRC 167, 173 (2014)). 

42 See Massachusetts v. NRC, 878 F.2d 1516, 1521 (1st Cir. 1989). 

To the extent Petitioners argue (Petitioners’ Reply at 11-12) that the Staff has tacitly approved 

Entergy’s request to no longer make required notifications, they are incorrect. Entergy has 

withdrawn its license amendment application; as such, Entergy’s obligations under its license to 

provide notice of disbursements remain in place. See note 56, infra. 
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Vermont Yankee in a safe storage condition (SAFSTOR).43 Petitioners assert that, for these 

costs, use of decommissioning funds contravenes the requirement that such funds are only to 

be used for activities that “reduce residual radioactivity.”44 We find that, at bottom, Petitioners 

raise an issue of non-compliance that should be filed as a petition for enforcement action, and 

not as a matter before us or the Licensing Board. 

To determine whether a particular expense may appropriately be used for 

decommissioning, it is appropriate to look to the governing regulations regarding the use of 

decommissioning trust funds. These regulations permit licensees to use decommissioning trust 

funds only for “legitimate decommissioning activities” consistent with the definition of 

decommissioning in 10 C.F.R. § 50.2.45 Our rules, however, do not themselves define 

“legitimate decommissioning activities.” The Staff, when reviewing notifications for withdrawal of 

funds to be used for decommissioning purposes, therefore must look to whether the activity or 

expense is directly related to the radiological decontamination of the facility or qualifies as an 

administrative expense consistent with our regulations and to the applicable license 

conditions.46 In determining whether an expense is allowable, the Staff is informed by the 

 

43 Petition at 20-21, 22. Petitioners also object to Entergy’s inclusion of spent fuel management 

expenses in its decommissioning cost estimate. However, spent fuel management expenses 

are the subject of an exemption that the Staff has approved. See discussion infra at section II.B 

and note 56. 

44 Petition at 20 (citation omitted). 

45 10 C.F.R. § 50.82(a)(8)(i)(A). 

46 See id. § 50.2; see also License at 7. Section 50.75(h)(1)(iv) contains this requirement for 

plants subject to that provision. 
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Statements of Consideration for the 1988 decommissioning rule and applicable regulatory 

guidance.47

The general objections lodged by Petitioners here do not reveal a manifest inconsistency 

with our rules warranting relief as part of our supervisory review. But we decline to make a 

broad statement about the propriety of a withdrawal to pay for any particular expense. The Staff 

reviews notifications of withdrawal of funds from decommissioning trusts on a case-by-case 

basis.48 Petitioners may likewise challenge any individual notification via the section 2.206 

process if they believe that a particular withdrawal is not authorized by the license or applicable 

 

47 See General Requirements for Decommissioning Nuclear Facilities; Final rule, 53 Fed. Reg. 

24,018 (June 27, 1988); see also Financial Assurance Requirements for Decommissioning 

Nuclear Power Reactors; Final rule, 63 Fed. Reg. 50,465 (Sept. 22, 1998); Decommissioning 

Final Rule, 61 Fed. Reg. at 39,278. 

As Entergy correctly observes, NRC guidance contemplates classifying a number of the 

expenses Petitioners contest as decommissioning costs. Entergy Answer at 20-21 & nn. 90, 

92-95 (citations omitted). For example, NUREG/CR-5884 classifies removal and disposal of 

asbestos as a “cascading cost”—that is, a cost associated with the removal of noncontaminated and releasable material in support of the decommissioning process. “Revised 

Analyses of Decommissioning for the Reference Pressurized Water Reactor Power Station” 

(Final Report), NUREG/CR-5884 (Nov. 1995), app. B, at B.34 & n.16 (ML14008A187). And 

Regulatory Guide 1.159 contemplates the inclusion of insurance in the decommissioning cost 

estimate. “Assuring the Availability of Funds for Decommissioning Nuclear Reactors,” 

Regulatory Guide 1.159, rev. 2 (Oct. 2011), at 11 (ML112160012). Further, Regulatory Guide 

1.202 contemplates including both property tax and insurance in the decommissioning cost 

estimate. “Standard Format and Content of Decommissioning Cost Estimates for Nuclear 

Power Reactors,” Regulatory Guide 1.202 (Feb. 2005), at 9 (ML050230008). But these 

expenses may not be allowable uses for decommissioning trust funds in all circumstances. 

48 And we have directed that “the [S]taff should not allow the withdrawal of funds that have been 

deposited to meet NRC decommissioning objectives, as identified in a site-specific study as 

being necessary to complete radiological decommissioning or are necessary to satisfy the 

generic formula amounts set forth in 10 C.F.R. § 50.75(c).” Staff Requirements—SECY-02-

0085—Recent Issues With Respect to Decommissioning Funding Assurance That Have Arisen 

as Part of License Transfer Applications and Other Licensing Requests (Jan. 3, 2003), at 1 

(ML030030539). 
- 16 - 

regulations. To raise a sufficient challenge Petitioners must do more than they have done here. 

They must identify a particular disbursement and explain why it contravenes applicable 

requirements.49

Regarding the Master Trust Agreement, Petitioners argue as a general matter that it 

prohibits the use of the decommissioning trust fund for non-decommissioning expenses.50 They 

point out that, by its terms, the “exclusive purpose” of the Master Trust Agreement is 

to accumulate and hold funds for the contemplated Decommissioning of the 

Station and to use such funds, in the first instance, for expenses related to the 

Decommissioning of the Station as defined by the NRC in its [r]egulations and 

issuances, and as provided in the licenses issued by the NRC for the Station and 

any amendments thereto.51

Petitioners are correct insofar as they assert that, pursuant to the Master Trust Agreement, 

decommissioning trust funds are in the first instance to be used for the purpose of 

decommissioning the Vermont Yankee site. But the “[r]egulations and issuances” that define 

whether this standard has been satisfied are not necessarily static; they may be amended or an 

 

49 To the extent that the NRC has issued exemptions regarding use of the decommissioning 

trust fund to Entergy, Entergy’s use of such funds consistent with approved exemptions would 

not violate NRC regulations. If Petitioners (or any person) seek to argue that a specific 

disbursement is inconsistent with an approved exemption, such a challenge likewise is 

appropriately raised via the section 2.206 process. 

50 Petition at 26-29. In framing their argument, Petitioners assert that “[b]oth entities that 

reviewed Entergy’s proposed purchase of Vermont Yankee—the NRC and the [Vermont] Public 

Service Board—conditioned their approvals of the purchase on establishment of and 

compliance with a trust agreement to protect the Decommissioning Fund.” Id. at 23. For the 

purpose of this petition, the rationale behind the authorization of Entergy’s purchase of the 

facility is not relevant. The relevant inquiry is what the Master Trust Agreement requires and 

how the Agreement relates to Entergy’s license for the facility and our governing regulations. 

51 Id. at 26 (emphasis omitted) (quoting Master Trust Agreement for Vermont Yankee Nuclear 

Power Station (July 31, 2002), § 2.01 (attached to Petition as Exhibit 1) (Master Trust 

Agreement)). 
- 17 - 

exemption may be issued without effecting an amendment of the Master Trust Agreement.52 

Accordingly, Entergy may use the trust funds consistent with the Master Trust Agreement, as 

modified by any exemptions that the NRC has approved. The use of decommissioning funds in 

these circumstances (that is, consistent with approved exemptions) does not contravene the 

terms of the Agreement. 

Nor does Entergy’s use of funds in accordance with the exemption effectuate an 

amendment to the Master Trust Agreement not authorized by either the Agreement itself or the 

corresponding portion of Entergy’s license. Section 9.05(d) of the Master Trust Agreement 

states: 

[T]his Agreement cannot be amended in any material respect without [thirty] 

days’ prior written notice to the [Director of the Office of Nuclear Reactor 

Regulation (NRR Director)]; provided, however, that if the Company receives 

prior written notice of objection from either the NRR Director or the [Director of 

the Office of Nuclear Material Safety and Safeguards], as appropriate, no such 

material amendment, modification, or alteration shall be made.53

This restriction reflects license condition 3.J.a.iv., which in turn states that “[t]he 

decommissioning trust agreement must provide that the agreement cannot be amended in any 

material respect without [thirty days’] prior written notification to the Director of the Office of 

Nuclear Reactor Regulation.”54 We understand this provision to mean that Entergy may not 

alter the terms of the Master Trust Agreement without prior notice to the NRC. But for the 

reasons stated above, this does not mean that use of the fund in accordance with an exemption 

somehow constitutes an alteration of the Master Trust Agreement. The license condition 

 

52 For the same reason, Petitioners’ arguments asserting that Entergy’s actions violate license 

condition 3.J.a.i (Petitioners’ Reply at 12) are unavailing. Issuance of an exemption does not 

render the form of the decommissioning trust agreement unacceptable to the NRC. 

53 Master Trust Agreement § 9.05(d). 

54 License at 7. 
- 18 - 

requiring Entergy to provide notice of an amendment to the Master Trust Agreement remains in 

place, and no provision of the Agreement has been amended. 

In sum, use of the decommissioning trust funds must comply with our regulations, as 

exempted, and Entergy’s license for the facility. As we explained with respect to Petitioners’ 

arguments regarding the costs Entergy has included in its decommissioning cost estimate, 

challenges regarding the propriety of particular uses of the fund under the license or our 

regulations are appropriate for the Staff’s consideration under section 2.206. Indeed, that is 

precisely what the 2.206 process is for. But in the absence of any demonstration that the NRC 

has approved conduct in derogation of Entergy’s license, we deny Petitioners’ request that we 

“review all of Entergy’s requests for withdrawals from the Decommissioning Fund, and prohibit 

Entergy from making future withdrawals for expenses that do not meet the NRC’s definition of 

decommissioning.”55

 Exemption Request 

In addition to their general concerns about how decommissioning funds should be used, 

Petitioners challenge a particular exemption that allows Entergy to use decommissioning trust 

funds for irradiated fuel management and contend that Entergy is not entitled to such an 

exemption.56 Essentially, Petitioners claim that spent fuel costs will reduce funds set aside for 

 

55 Petition at 59. 

56 Id. at 31; see Exemption Issuance, 80 Fed. Reg. at 35,992. Entergy also sought—and the 

Staff granted—an exemption from 10 C.F.R. § 50.75(h)(1)(iv), which would have permitted 

Entergy to use the funds for spent fuel management without providing notice to the NRC. See 

id. But 10 C.F.R. § 50.75(h)(1)(iv) would only have applied to Entergy following the approval of 

the license amendment application discussed above. Because Entergy has now withdrawn that 

application, the exemption from 10 C.F.R. § 50.75(h)(1)(iv) has no effect. See Vermont Yankee, 

LBP-15-28, 82 NRC at 238. 
- 19 - 

decommissioning far beyond Entergy’s estimates.57 Petitioners argue that the Staff’s approval 

of the exemption for Vermont Yankee was arbitrary and an abuse of discretion because 

Entergy’s decommissioning cost estimate underestimates the cost of decommissioning the 

facility.58 They further argue that Entergy underestimates the cost of spent fuel management.59 

And Petitioners generally challenge the NRC’s practice of granting exemptions without providing 

an opportunity for a hearing.60

The Staff and Entergy both counter that the Staff’s issuance of the exemption is not 

subject to a hearing.61 As to the merits, Entergy asserts that Petitioners’ arguments regarding 

the cost of decommissioning are “highly speculative, lack a basis in fact, and fail to satisfy the 

stringent ‘clear and material error’ standard—a required demonstration for a petition for 

reconsideration.”62 The Staff argues that Petitioners’ concerns regarding depletion of the 

decommissioning trust fund are misplaced due to regulatory safeguards.63

As both the Staff and Entergy observe, exemption requests are not subject to a hearing 

opportunity under the Atomic Energy Act. AEA section 189a. states: 

 

57 Petition at 43-47. 

58 Id. at 35-41. In this vein, Petitioners assert that Entergy did not demonstrate special 

circumstances justifying the exemption, as required by 10 C.F.R. § 50.12(a)(2). Id. at 31-35. 

59 Id. at 41-47. 

60 Id. at 33. 

61 Staff Answer at 33-34; Entergy Answer at 30. 

62 Entergy Answer at 32-34. Entergy examines Petitioners’ arguments under 10 C.F.R. § 2.345, 

which governs petitions for reconsideration in adjudications; it argues that under these 

standards, the petition does not fulfill the regulatory requirements and is impermissibly late. Id.

at 30-31. 

63 Staff Answer at 36-37. 
- 20 - 

In any proceeding under this Act, for the granting, suspending, revoking, or 

amending of any license ... and in any proceeding for the issuance or 

modification of rules and regulations dealing with the activities of licensees ... the 

Commission shall grant a hearing upon the request of any person whose interest 

may be affected by the proceeding ....64

As we have previously held, “[a]gency actions that are not among those listed [in section 189a.] 

do not give rise to a hearing right for interested persons.”65 Petitioners acknowledge this, but 

they note that “[a]lthough stand-alone exemption requests generally do not create hearing 

rights, hearings on exemption requests that are ‘directly related’ to a license amendment 

request are excepted from that general rule.”66 Petitioners argue that this case fits within that 

exception because of the interrelationship between Entergy’s license amendment request and 

its exemption request. But the exception does not apply here because Entergy has withdrawn 

its license amendment request and the Board has approved that withdrawal.67 Therefore, no 

active license amendment request remains that is arguably related to Entergy’s exemption 

request.68

Although no hearing opportunity attaches to the exemption request, we briefly address 

the merits of Petitioners’ arguments. As an initial matter, our current decommissioning process 

 

64 42 U.S.C. § 2239. 

65 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-12, 53 

NRC 459, 466 (2001) (citing Massachusetts, 878 F.2d at 1516). 

66 Petition at 13 (citing Private Fuel Storage, CLI-01-12, 53 NRC at 476). 

67 Motion to Withdraw at 1; Vermont Yankee, LBP-15-28, 82 NRC at 244. 

68 Petitioners also request a hearing on the Vermont Yankee PSDAR. Petition at 59. Although 

the Staff solicited comments on the Vermont Yankee PSDAR, our regulations do not provide a 

hearing opportunity on it. 10 C.F.R. § 50.82(a)(4)(ii); see 42 U.S.C. § 2239. See generally

Entergy Nuclear Operations, Inc., Vermont Yankee Nuclear Power Station Post-Shutdown 

Decommissioning Activities Report, 80 Fed. Reg. 1975 (Jan. 14, 2015). 
- 21 - 

expressly contemplates the issuance of exemptions from regulatory requirements applicable to 

operating reactors where the Staff determines that such exemptions are warranted.69 Further, 

Petitioners are correct that, under our decommissioning rules, a licensee may not use 

decommissioning trust funds to pay for spent fuel management costs. Footnote 1 to 10 C.F.R. 

§ 50.75(c) states that the minimum amounts required to demonstrate reasonable assurance of 

funds for decommissioning set forth in that section “are based on activities related to the 

definition of ‘Decommission’ in [10 C.F.R. § 50.2] and do not include the cost of removal and 

disposal of spent fuel or of non-radioactive structures and materials beyond that necessary to 

terminate the license.”70 To use decommissioning funds for spent fuel management at Vermont 

Yankee, Entergy was therefore required to seek an exemption from that provision. And the 

relevant question is not, as Petitioners assert, whether, in the abstract, issuing exemptions is an 

appropriate means of regulating but, rather, whether in this case approval of the exemption was 

warranted. 

We therefore look to whether Entergy satisfied the criteria for obtaining an exemption 

pursuant to 10 C.F.R. § 50.12. That section permits the approval of an exemption provided that 

the exemption is authorized by law, will not present an undue risk to the public health and 

 

69 See Staff Requirements—SECY-14-0118—Request by Duke Energy Florida, Inc., for 

Exemptions from Certain Emergency Planning Requirements (Dec. 30, 2014) (ML14364A111) 

(directing the Staff to continue reviewing exemption requests and providing recommendations to 

the Commission while proceeding with a rulemaking on decommissioning). 

70 See also 10 C.F.R. § 50.82(a)(8). Our regulations separately require a plan for fuel 

management following cessation of reactor operations, including funding. See id. § 50.54(bb). 
- 22 - 

safety, and is consistent with the common defense and security.71 Additionally, special 

circumstances must be present before an exemption may be granted.72

For its part, the Staff reasonably determined that Entergy satisfied the requirements for 

the exemption. First, the Staff determined that Entergy’s requested exemption was authorized 

by law.73 Our regulations contemplate exemptions under appropriate circumstances, and the 

Staff found that the exemption requested would not result in violation of the AEA or NRC 

regulations.74 Next, the Staff determined that the exemption presented no undue risk to public 

health and safety.75 Entergy’s exemption request stated that the contemplated use of part of the 

trust fund for irradiated fuel management would not “adversely impact [Entergy’s] ability to 

terminate the [Vermont Yankee] license (i.e.[,] complete radiological decommissioning) ... 

consistent with the schedule and costs contained in the [Vermont Yankee] updated Irradiated 

Fuel Management Program and PSDAR.”76 Entergy’s request further stated that the probability 

of accidents, consequences of accidents, types and amounts of effluents that may be released 

offsite did not change with the proposed use of the trust fund in the exemption request.77 

Additionally, Entergy noted that there was no significant increase in occupational or public 

 

71 Id. § 50.12(a)(1). 

72 Id. § 50.12(a)(2)(i)-(vi) (defining what may constitute special circumstances). 

73 Exemption Issuance, 80 Fed. Reg. at 35,993. 

74 See Exemption Request, attach. 1, at 9. 

75 Exemption Issuance, 80 Fed. Reg. at 35,993. 

76 Exemption Request, attach. 1, at 9. 

77 Id.
- 23 - 

radiation exposure with the proposed use of the funds.78 The Staff further found that the 

exemption was consistent with the common defense and security.79 As Entergy’s exemption 

request stated, the change would “not alter the scope of, or availability of sufficient funding for 

the [Vermont Yankee] security program and does not adversely affect the ability to physically 

secure the site and to protect special nuclear material.”80

Petitioners contend that the Staff’s regulatory findings rely on a number of faulty 

assumptions. Specifically, Petitioners claim that the exemption rests on an unreasonably low 

estimation of decommissioning costs because it does not “provide any contingency for 

discovery of additional contaminants, such as the discovery of strontium-90 in locations where 

that contaminant had not previously been identified.”81 Additionally, Petitioners assert that the 

exemption unreasonably truncates the likely cost of spent fuel management because it assumes 

that the Department of Energy will take possession of the spent nuclear fuel on site by 2052.82 

In support of this claim, Petitioners point to our recent Continued Storage Rule, which codified a 

generic environmental impact statement that (among other things) acknowledged that spent fuel 

could remain on site indefinitely.83

 

78 Id.

79 Exemption Issuance, 80 Fed. Reg. at 35,993. 

80 Exemption Request, attach. 1, at 9-10. 

81 Petition at 36. 

82 Id. at 46. 

83 Id. at 46-47; see 10 C.F.R. § 51.23; “Generic Environmental Impact Statement for Continued 

Storage of Spent Nuclear Fuel” (Final Report), NUREG-2157, vol. 1 (Sept. 2014) 

(ML14196A105) (NUREG-2157). 
- 24 - 

As explained above, even after the Staff granted the exemption, the regulations still 

prohibit Entergy from making a withdrawal that would “inhibit its ability to complete funding of 

any shortfalls in the decommissioning trust,” require Entergy to submit an annual financial 

assurance report, and require Entergy to provide additional funds if the report reveals 

insufficient funds to complete decommissioning.84 Therefore, the applicable regulations provide 

reasonable assurance that adequate funds will remain to complete decommissioning by 

requiring Entergy and the Staff to monitor the projected cost of decommissioning and available 

funding and ensure more funding is available as needed. Moreover, as Entergy and the Staff 

observed, with regard to their decommissioning costs claim, Petitioners have not shown how the 

identified contaminants will elevate decommissioning costs.85 Likewise, with regard to the fuelcosts claim, while the Continued Storage generic environmental impact statement 

acknowledges for purposes of NEPA that fuel could remain on site indefinitely, it finds the shortterm period of storage most likely.86 Therefore, we find that Petitioners have not demonstrated 

that in granting the exemption, the Staff relied on unreasonable assumptions. 

Additionally, the Staff found that “special circumstances” within the meaning of 10 C.F.R. 

§ 50.12(a)(ii) were present, because the application of the regulations in question—10 C.F.R. 

§§ 50.82(a)(i)(A) and 50.75(h)(1)(iv)—“would not serve the underlying purpose of the rule[s] or 

 

84 See supra at 4-5 (citing 10 C.F.R. § 50.82(a)(8)(i)(C), (a)(8)(v), and (a)(8)(vi)). 

85 Entergy Answer at 32-33 (noting that the identified levels of strontium-90 at Vermont Yankee 

are below regulatory limits); Staff Answer at 43 & n.211 (same). 

86 NUREG-2157, app. B at B-2 (finding the short term period of storage, sixty years after a 

facility’s license expires, to be the most likely scenario for onsite spent fuel storage). 
- 25 - 

[was] not necessary to achieve the underlying purpose of the rule[s].”87 The Staff observed that 

the underlying purpose of the regulation “is to provide reasonable assurance that adequate 

funds will be available for radiological decommissioning of power reactors.”88 On that point, the 

Staff found that “there are sufficient funds in the [t]rust to complete legitimate radiological 

decommissioning activities as well as to conduct irradiated fuel management.”89

As the Staff argued before the Board in the license amendment matter, Entergy’s 

election to maintain Vermont Yankee in SAFSTOR helps to provide assurance that there will be 

sufficient funds for decommissioning.90 Further, the regulatory limit on the interest rate 

licensees may use in funding projections is two percent.91 The Staff noted that when a two 

percent return is applied to the current balance of the decommissioning trust fund, the projected 

funds at the end of the decommissioning period would be sufficient to fund both 

decommissioning and the irradiated fuel management expenses that are the subject of the 

 

87 Exemption Issuance, 80 Fed. Reg. at 35,993; see also 10 C.F.R. § 50.12(a)(2)(ii). 

88 Exemption Issuance, 80 Fed. Reg. at 35,993; see also Exemption Request, attach. 1, at 10. 

89 Exemption Issuance, 80 Fed. Reg. at 35,994; see also Exemption Request, attach. 1, at 3-6 

(providing a cash flow analysis and explaining that it “demonstrates that with earnings, the trust 

fund is sufficient to cover the estimated costs not only of radiological decommissioning but also 

the irradiated fuel management activities that are within the scope of the exemption requests”). 

90 NRC Staff Answer to State of Vermont Petition for Leave to Intervene and Hearing Request

(May 15, 2015), at 43-44 (Staff Answer to Vermont Intervention Petition). SAFSTOR “allows 

natural radioactive decay to proceed over time, which will reduce the amount of contamination 

and radioactivity that will have to be addressed in decommissioning and thus reduce the overall 

expense of decommissioning.” Id. at 44 (citing “Decommissioning of Nuclear Power Reactors,” 

Regulatory Guide 1.184, rev. 1 (Oct. 2013), at 4 (ML13144A840); “Staff Responses to 

Frequently Asked Questions Concerning Decommissioning of Nuclear Power Plants” (Final 

Report), NUREG-1628 (June 2000), at 5-7 (ML003726190)); see also Exemption Request, 

attach. 1, at 1, 7. 

91 10 C.F.R. § 50.75(e)(1)(ii); see Staff Answer to Vermont Intervention Petition at 44. 
- 26 - 

exemption.92 The Staff further stated that Entergy’s decommissioning cost estimate employed 

“numerous conservatisms in its calculation of costs.”93 Ultimately, the Staff reasonably 

concluded that the period of decommissioning, the projected earnings of the fund, and the 

conservatisms in the decommissioning cost estimate provide assurance that sufficient funds will 

be available for decommissioning. 

Petitioners argue that special circumstances are not present in this proceeding with 

regard to this exemption because the Staff has “granted [the] exemption to every nuclear power 

plant that has requested it.”94 Petitioners conclude, “The exemption cannot be the rule.”95 But, 

our regulations specifically delineate the circumstances in which we will find special 

circumstances, and whether other facilities have requested or received similar exemptions is not 

an enumerated factor.96 Petitioners remind us that we have previously observed that 

exemptions are an “extraordinary equitable remedy to be used sparingly” in light of our robust 

rulemaking process.97 But, this observation does not override the explicit language in our 

 

92 Staff Answer to Vermont Intervention Petition at 44; see also Exemption Request, attach. 1, at 

10. 

93 Staff Answer to Vermont Intervention Petition at 44 & n.197 (summarizing the conservatisms 

set forth in the decommissioning cost estimate such as “the use of a contingency factor, a work 

difficulty factor, the assumption that the [U.S. Department of Energy] will accept older irradiated 

fuel before it accepts newer irradiated fuel, and an estimate of the volume of soil to be removed 

for controlled disposal that is not adjusted downward for the natural decay of radionuclides over 

time”). 

94 Petition at 32. 

95 Id. at 33. 

96 10 C.F.R. § 50.12(a)(2). 

97 Petition at 32-33 (quoting Honeywell International, Inc. (Metropolis Works Uranium 

Conversion Facility), CLI-13-1, 77 NRC 1, 9 (2013) (internal quotations omitted)). 
- 27 - 

regulations. We do not see any conflict between that principle and the agency’s actions; the 

NRC has granted this exemption, to one part of our extensive regulatory structure, to a handful 

of plants. These exemptions are hardly the rule. Additionally, in light of our recent experience 

with decommissioning facilities, we commenced a rulemaking to update our regulations 

regarding decommissioning reactors.98 As a result, the NRC continues to adhere to the 

principle that exemptions should be granted sparingly and is taking action to consider whether 

recently granted exemptions suggest a need to change our regulatory structure to ensure, in 

part, that the agency’s use of exemptions remains appropriate.99

Finally, in granting the exemption, the Staff determined that special circumstances were 

present for another reason—Entergy’s compliance with the rule would result in undue hardship 

or other costs that are significantly in excess of those contemplated when the regulation was 

adopted, or that are significantly in excess of those incurred by others similarly situated.100 On 

that point, Entergy stated that preventing access to excess trust funds for irradiated fuel 

management “would create an unnecessary financial burden without any corresponding safety 

 

98 Regulatory Improvements for Decommissioning Power Reactors, 80 Fed. Reg. 72,358 (Nov. 

19, 2015) (Advance Notice of Proposed Rulemaking). 

99 As reflected in today’s order, we have carefully considered the views expressed to us. While 

we are not persuaded by Commissioner Baran’s dissenting views, we are mindful of the 

concerns he has raised. The full Commission has separately directed the Staff to consider 

options for addressing requests for decommissioning-related exemptions between now and the 

time the agency completes its larger decommissioning rulemaking. With respect to this matter, 

we have discretionarily provided the Petitioners and others a greater opportunity to participate 

than is contemplated by our regulations. See supra at 9-10. Moreover it would be unfair, and 

potentially arbitrary, to treat this request—one that meets the requirements for an exemption—

differently simply because of where it falls in a series of similar requests. E.g., Eagle Broad. 

Grp. v. FCC, 563 F.3d 543, 551, 554 (D.C. Cir. 2009) (observing that “an agency may not treat 

like cases differently” (internal quotations marks omitted)). 

100 Exemption Issuance, 80 Fed. Reg. at 35,994; see also 10 C.F.R. § 50.12(a)(2)(iii). 
- 28 - 

benefit” because the amounts in the trust fund are adequate to cover both decommissioning 

activities and irradiated fuel management.101 As noted above, the Staff agreed with this 

analysis, and we have identified no reason to second-guess this judgment. 

We reiterate that the approval of this exemption is not the end of the story. NRC 

regulations require annual review of expenses and funding by both the Staff and the licensee 

through license termination.102 This annual review provides an additional mechanism to assure 

that adequate funds will be available for decommissioning. If the NRC determines, as the result 

of this annual review, that costs of decommissioning exceed the remaining decommissioning 

funds, “then the licensee must provide additional financial assurance to cover the estimated cost 

of completion.”103

In short, we have examined the record associated with the Staff’s approval of the 

exemption. We conclude that the Staff followed the process set forth in 10 C.F.R. § 50.12 and 

 

101 Exemption Request, attach. 1, at 11. 

102 Staff Answer to Vermont Intervention Petition at 44 (citing 10 C.F.R. § 50.82(a)(8)(v)); see 

also Exemption Request, attach. 1, at 7 (stating that the annual reporting requirements in 

10 C.F.R. § 50.82(a)(8)(v) and (vi) will allow continual NRC oversight of the status of the trust 

fund if Entergy is not required to submit thirty-day notices of disbursements for irradiated fuel 

management). 

103 See Staff Answer at 36 (citing 10 C.F.R. § 50.82(a)(v)-(vii)). See generally “Summary 

Findings Resulting from the Staff Review of the 2013 Decommissioning Funding Status Reports 

for Operating Power Reactors,” Commission Paper SECY-13-0105 (Oct. 2, 2013) 

(ML13266A084). The Staff recently completed its annual review of decommissioning funding 

status reports and concluded that, among other licensees, Entergy has demonstrated 

compliance with section 50.82(a)(8)(v)-(vii), thereby providing assurance that it is maintaining 

sufficient funds to safely decommission Vermont Yankee. See Memorandum from Anthony 

Bowers, Office of Nuclear Reactor Regulation, NRC, to Bruce A. Watson, Office of Nuclear 

Material Safety and Safeguards, NRC, “Summary of the 2016 Annual Review of 

Decommissioning Funding Status Reports for Plants in Decommissioning” (Oct. 4, 2016) 

(ML16274A027). 
- 29 - 

articulated a reasonable basis for granting the exemption. We therefore deny Petitioners’ 

request that we reverse the Staff’s approval of Entergy’s exemption request to use 

decommissioning trust funds for spent fuel management expenses. 

 Request for Additional Detail in Notices of Disbursement 

Petitioners next ask that we direct Entergy to provide additional information in its notices 

of disbursements or payments from the decommissioning trust.104 As noted above, when the 

Board granted Entergy’s motion to withdraw its license amendment request, it imposed a 

condition on the withdrawal requiring that Entergy specify in its notification to NRC that it is 

reimbursing itself from the decommissioning trust fund for certain expenses.105 Petitioners 

assert that “[this thirty-day] notice requirement is necessary to protect against encroachments 

on the Decommissioning Fund, like those now pursued by Entergy.”106 They therefore request 

that we “require Entergy to provide detailed information supporting all proposed withdrawals 

from the Decommissioning Fund, not just those in the six categories that were the subject of the 

 

104 Petition at 47. Condition 3.J.a.iii of the Vermont Yankee license states that the Master Trust 

Agreement shall prohibit disbursements from the trust other than for ordinary administrative 

expenses unless the trustee first gives the NRC thirty days’ prior written notice. The Master 

Trust Agreement must also provide that the trustee may not make payments from the fund if the 

NRR Director objects in writing. License at 7. 

105 Petition at 47-48 (citing Vermont Yankee, LBP-15-28, 82 NRC at 244 (requiring that Entergy 

“specify in its [thirty]-day notice if the disbursement includes one of the six line items or legal 

expenses to which Vermont objected in its admitted contention”)). 

106 Id. at 48. 
- 30 - 

license amendment proceeding.”107 Petitioners seek this information for past and future 

withdrawals from the fund.108

We decline to grant Petitioners’ requested relief. The proper avenue for Petitioners’ 

challenge—whether they seek more detail on a specific notification or greater specificity in the 

license condition, such that all notifications would require more detail—is to pursue an 

enforcement action under 10 C.F.R. § 2.206. Regarding the content of Entergy’s notifications, 

Petitioners do not demonstrate that the information that Entergy currently provides is 

inadequate. Accordingly, we deny the request. 

 Environmental Requirements for Decommissioning Activities 

Petitioners request a full environmental analysis of a variety of activities related to 

Entergy’s decommissioning of the Vermont Yankee facility.109 We provide the regulatory 

background and consider each of Petitioners’ arguments below. 

In 2002, the NRC published an update to its generic analysis of decommissioning 

impacts—the Final Generic Environmental Impact Statement on Decommissioning of Nuclear 

 

107 Id. at 49. When Entergy sought to withdraw its license amendment request, the State of 

Vermont requested that the Board impose a broad condition on that withdrawal: “Entergy shall 

provide [Vermont] all supporting documentation for the specific expenses for which Entergy has 

filed [thirty-day] notices from the Vermont Yankee Nuclear Decommissioning Trust Fund, and 

shall continue to provide that information for future withdrawals.” State of Vermont’s Response 

to Entergy’s Motion to Withdraw (Oct. 2, 2015), at 3. The Board declined to do so. Vermont 

Yankee, LBP-15-28, 82 NRC at 242. To the extent that Petitioners seek to challenge the 

Board’s disinclination to apply this condition to Entergy’s withdrawals from the fund, the proper 

avenue for doing so would have been to challenge that aspect of LBP-15-28. See Entergy 

Answer at 35. 

108 Petition at 49. 

109 Id. at 50, 52-53. 
- 31 - 

Power Reactors.110 Although this GEIS reflects the NRC’s determination that decommissioning 

is not itself a major federal action, it serves to “to establish an envelope of environmental 

impacts associated with decommissioning activities.”111 This envelope defines the scope of 

permissible actions that a licensee who has entered the decommissioning process may take. 

As the NRC explained in the GEIS: 

[l]icensees can rely on the information in this [GEIS] as a basis for meeting the 

requirements in 10 [C.F.R. §] 50.82(a)(6)(ii). This requirement states that the 

licensee must not perform any decommissioning activity that causes any 

significant environmental impact not previously reviewed. Prior to conducting a 

decommissioning activity, the licensee must make a determination that the 

resulting environmental impacts fall within the bounds of this [GEIS] or of another 

EIS related to its facility.112

Licensees may rely on the Decommissioning GEIS only if the expected environmental 

impacts of a particular decommissioning activity are bounded by its analysis. If contemplated 

decommissioning activities are expected to result in environmental impacts outside the bounds 

of the Decommissioning GEIS (or a prior site-specific environmental review), then the licensee 

should apply for a license amendment and submit a supplemental environmental report as part 

of that application describing and evaluating the additional environmental impacts.113 In that 

case, the Staff will review the report and prepare, as appropriate, either an environmental 

 

110 “Generic Environmental Impact Statement on Decommissioning of Nuclear Facilities, 

Supplement 1 Regarding the Decommissioning of Nuclear Power Reactors” (Final Report), 

NUREG-0586, Supplement 1, vols. 1-2 (Nov. 2002) (ML023470304, ML023470323, 

ML023500187, ML023500211, ML023500223) (Decommissioning GEIS) (supplementing the 

Final Generic Environmental Impact Statement on Decommissioning of Nuclear Facilities, 

published in 1988). 

111 Id. at 1-1. 

112 Id. at 1-10 to 1-11. 

113 Id. at 1-11, 2-3. 
- 32 - 

assessment or an environmental impact statement.114 In sum, the Decommissioning GEIS—

consistent with our regulations—sets forth a structure by which a licensee submitting a PSDAR 

(and performing decommissioning activities consistent with that PSDAR) may rely on a 

previously performed environmental analysis so long as the impacts fall within the bounds of 

that analysis.115

As discussed above, the Staff provides an opportunity for public comment when a 

licensee submits its PSDAR.116 But the PSDAR does not amend the license—and as such the 

licensee is not required to submit a corresponding environmental report.117 In line with the 

Decommissioning GEIS, with respect to environmental impacts, a PSDAR must include “a 

discussion that provides the reasons for concluding that the environmental impacts associated 

with site-specific decommissioning activities will be bounded by appropriate previously issued 

environmental impact statements.”118 Later, at the license termination stage, the licensee must 

 

114 Id. at 2-3. 

115 The Decommissioning GEIS provides guidance regarding which decommissioning activities 

fall within the scope of its analysis. Table 1-1 lists “[a]ctivities performed up to license 

termination and their resulting impacts as provided in the definition of decommissioning” and 

“[n]onradiological impacts occurring after license termination from activities conducted during 

decommissioning” as within the scope of the GEIS. Id. at 1-6. 

116 10 C.F.R. § 50.82(a)(4)(ii); see Decommissioning Final Rule, 61 Fed. Reg. at 39,281 (“The 

purpose of the PSDAR is to provide a general overview for the public and the NRC of the 

licensee’s proposed decommissioning activities until [two] years before termination of the 

license. The PSDAR is part of the mechanism for informing and being responsive to the public 

prior to any significant decommissioning activities taking place.”). 

117 10 C.F.R. § 50.82(a)(4)(i); see id. § 51.53(d); see also Decommissioning Final Rule, 61 Fed. 

Reg. at 39,284 (“A more formal public participation process is appropriate at the termination 

stage of decommissioning ....”). 

118 10 C.F.R. § 50.82(a)(4)(i); see Decommissioning Final Rule, 61 Fed. Reg. at 39,293. When 

taking actions under 10 C.F.R. § 50.59 following submission of the PSDAR, the licensee must 

notify the NRC in writing and provide a copy to the affected State, “before performing any 
- 33 - 

submit a license amendment request in order to terminate its license.119 The Decommissioning 

GEIS, mirroring the regulations discussed above, contemplates assessing site-specific impacts 

at the license termination stage. The GEIS explains that the license termination plan must 

include a supplement to the previous environmental analysis describing any new information or 

significant environmental change associated with the proposed termination activities.120

Consistent with the process contemplated in the Decommissioning GEIS, Entergy’s 

PSDAR for Vermont Yankee states that it “has concluded that the environmental impacts 

associated with planned [Vermont Yankee Nuclear Power Station] site-specific 

decommissioning activities are less than and bounded by the impacts addressed by previously 

issued environmental impact statements.”121 The PSDAR contains analysis of various 

environmental impacts and an explanation of how those impacts fall within the analysis in the 

Decommissioning GEIS.122

 

decommissioning activity inconsistent with, or making any significant schedule change from,” 

activities and schedules described in the PSDAR, “including changes that significantly increase 

the decommissioning cost.” 10 C.F.R. § 50.82(a)(7). 

119 See Decommissioning Final Rule, 61 Fed. Reg. at 39,284. That request provides an 

opportunity for a hearing on the license termination plan. Id. at 39,284, 39,286. 

120 Decommissioning GEIS at 1-11, 2-4; see 10 C.F.R. §§ 50.82(a)(9)(ii)(G), 51.53(d); see also 

id. § 51.95(d). 

121 Letter from Christopher J. Wamser, Site Vice President, Entergy Nuclear Operations, Inc., to 

NRC Document Control Desk (Dec. 19, 2014), encl. § 5.0 (ML14357A110) (PSDAR). 

122 Id. §§ 5.1.1 to 5.1.18. 
- 34 - 

Petitioners contend that the Staff failed to perform NEPA review for several actions. 

First, they argue that the PSDAR requires a separate NEPA review.123 Entergy and the Staff 

counter that the NRC’s review of the PSDAR is not a major federal action that triggers NEPA 

review.124 As support for their argument that the PSDAR requires a separate NEPA analysis, 

Petitioners cite Citizens Awareness Network, Inc. v. NRC, in which the First Circuit Court of 

Appeals held that decommissioning activities require NEPA compliance.125 But Citizens 

Awareness predated the 1996 Decommissioning Final Rule. And as part of that rulemaking, the 

NRC expressly addressed the Citizens Awareness decision. The revised regulations addressed 

the court’s decision by prohibiting any major decommissioning that results in environmental 

impacts outside of the bounds of previous environmental analysis (i.e., the Decommissioning 

GEIS or a site-specific EIS).126 The NRC further explained that the updated rule also provides 

that a PSDAR must include a section discussing how the planned activities’ environmental 

impacts will be bounded by previous environmental analysis.127 Additionally, the licensee must 

provide written notice if the intended decommissioning activities are inconsistent with what the 

PDSAR describes.128

 

123 Petition at 52-53. 

124 Entergy Answer at 39-40; Staff Answer at 58. 

125 Petition at 52 (citing Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284, 293 (1st Cir. 

1995)). 

126 Decommissioning Final Rule, 61 Fed. Reg. at 39,286. 

127 Id.

128 Id.
- 35 - 

In promulgating the Final Decommissioning Rule, the NRC specifically considered and 

rejected the idea that review of the PSDAR should be defined as a major federal action under 

NEPA because environmental analysis of activities to be performed under the PSDAR will 

necessarily have been performed in accordance with prior site-specific or generic analysis.129 

Unless the environmental impacts of particular decommissioning activities will fall outside the 

previously performed analysis, the rule does not contemplate additional NEPA analysis at the 

PSDAR stage. As discussed above, Entergy’s PSDAR for Vermont Yankee states that it “has 

concluded that the environmental impacts associated with planned [Vermont Yankee Nuclear 

Power Station] site-specific decommissioning activities are less than and bounded by the 

impacts addressed by previously issued environmental impact statements.”130 The PSDAR 

contains analysis of various environmental impacts and an explanation of how those impacts fall 

within the analysis in the GEIS.131 Accordingly, Petitioners’ reliance on Citizens Awareness to 

support its argument for a separate environmental analysis of the PSDAR is unavailing.132

 

129 Id. at 39,279, 39,283, 39,286; see Entergy Answer at 39-40. 

130 PSDAR § 5.0. As discussed above, while the Staff does not formally approve a licensee’s 

PSDAR, it reviews the PSDAR. See Regulatory Guide 1.185 at 10 (noting that the Staff may 

find a PSDAR deficient if it proposes activities “that would result in a significant detrimental 

impact to the environment that is not bounded by the current environmental impact 

statements”); see also 10 C.F.R. § 50.82(a)(5) (prohibiting licensees from performing major 

decommissioning activities until ninety days after the Staff has received the PSDAR). Here, the 

Staff did not find Entergy’s PSDAR deficient. 

131 PSDAR §§ 5.1.1 to 5.1.18. 

132 Moreover, as discussed above, the updated regulations “require[] a formal license 

termination plan by the licensee. The activities in the licensee’s plan which do not meet the 

environmental criteria must be approved by the NRC by a license amendment that follows NRC 

procedures for amendments, including applicable hearing rights ... and the preparation of 

environmental assessments.” Decommissioning Final Rule, 61 Fed. Reg. at 39,286. Therefore, 
- 36 - 

Petitioners argue that because the Staff has the authority to “find the PSDAR deficient,” 

the Staff’s failure to do so in this instance converts its review of the PSDAR into a major federal 

action requiring NEPA review.133 Petitioners cite Ramsey v. Kantor134 for the proposition that an 

agency’s failure to disapprove of plans when it has a mandatory obligation to review those plans 

renders its review a major federal action.135 But in Ramsey, the failure of the agency to take 

action meant that the government entity’s plan in that case attained the force of law.136 By 

contrast, the fact that the Staff did not find Entergy’s PSDAR deficient does not result in the 

PSDAR attaining the force of law.137 Rather, as the Staff observes, the PSDAR does not permit 

Entergy to perform any task it could not already perform under 10 C.F.R. § 50.59.138

Petitioners separately argue that the Staff has NEPA responsibilities when it comes to its 

policing of Entergy’s thirty-day notices prior to withdrawals from the decommissioning trust 

fund.139 We disagree. An agency’s NEPA obligations are triggered by agency action.140 As 

 

our rules contemplate environmental analysis for any activities and impacts that have not 

previously been evaluated at a later stage of the decommissioning process. 

133 Petition at 53 (citations omitted). 

134 96 F.3d 434 (9th Cir. 1996). 

135 Petition at 53.

136 Ramsey, 96 F.3d at 445; see Staff Answer at 59. 

137 Staff Answer at 59 (citing Anglers Conservation Network v. Pritzker, 70 F. Supp. 3d 427, 442 

(D.C. Cir. 2014)). And we find persuasive the Staff’s argument that Entergy submitted its 

PSDAR “pursuant to regulatory provisions and in the rulemaking for those provisions, NEPA 

was considered and applied.” Id. at 59 n.279. 

138 Decommissioning Final Rule, 61 Fed. Reg. at 39,279; see Staff Answer at 59. 

139 Petition at 53. 

140 See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (“The statutory 

requirement that a federal agency contemplating a major action prepare ... an environmental 
- 37 - 

Petitioners themselves state, “NEPA and applicable NRC regulations require environmental 

review before the NRC acts on matters affecting the quality of the human environment.”141 The 

thirty-day notices do not involve NRC action; they merely serve to apprise the NRC of 

expenditures that the licensee intends to take.142 The notice requirement imposes obligations 

on Entergy; it requires neither Staff action nor approval.143 Accordingly, the requirement that 

Entergy submit notices of proposed disbursements to the Staff does not warrant separate NEPA 

review.144

Petitioners challenge the Staff’s determination that issuance of the exemption to Entergy 

allowing use of the decommissioning trust fund for spent fuel management was eligible for a 

categorical exclusion, under 10 C.F.R. § 51.22(c)(25). They argue that the NRC is required to 

conduct a NEPA analysis in conjunction with the exemption request.145 First, Petitioners assert 

 

impact statement serves NEPA’s action-forcing purpose ....” (emphasis added) (internal 

quotations and citations omitted)). 

141 Petition at 50 (emphasis added) (citing 10 C.F.R. § 51.20 and 42 U.S.C. § 4332). 

142 As discussed at length above, the Final Decommissioning Rule does not contemplate Staff 

approval of site-specific decommissioning expenditures that are bounded by prior environmental 

analysis. Final Decommissioning Rule, 61 Fed. Reg. at 39,286. 

143 See License at 7. 

144 In their reply brief, Petitioners claim that the Staff “places undue reliance on past 

environmental reviews ... that presupposed that decommissioning [would be] accomplished with 

adequate funding from a decommissioning trust fund that had not been depleted by way of 

exemptions allowing the fund to be used for non-decommissioning expenses.” Petitioners’ 

Reply at 17. However, as noted above, the regulations applicable to Vermont Yankee after the 

exemptions provide reasonable assurance that adequate funds remain to complete 

decommissioning at the site. Therefore, we see no error in continuing to rely on previous 

environmental analyses, such as the Decommissioning GEIS. 

145 Petition at 52, 56-58. 
- 38 - 

that the Staff should have performed a cumulative impacts analysis when determining that the 

exemption’s issuance was eligible for a categorical exclusion.146 Second, they claim that Staff’s 

analysis supporting the categorical exclusion “consisted merely of a recitation of the factors 

listed in 10 C.F.R. § 51.22(b) and 10 C.F.R. § 51.22(c)(25).”147

In response, Entergy disputes Petitioners’ argument that “exemption requests ... 

constitute ‘major federal actions’ within the meaning of NEPA.”148 Regarding the exemption 

itself, the Staff contends that Petitioners’ arguments constitute an impermissible collateral 

challenge to our regulations governing categorical exclusions.149 And both Entergy and the Staff 

assert that the application of a categorical exclusion was proper and that no cumulative impacts 

analysis was necessary.150 As discussed below, on this issue we agree with Petitioners and 

direct the Staff to analyze the environmental impacts associated with the exemption request. 

Our regulations provide that certain types of exemptions may be categorically excluded 

from environmental review. Specifically, the regulation from which the exemption is sought 

must involve one of the following: recordkeeping requirements; reporting requirements; 

inspection or surveillance requirements; equipment servicing or maintenance scheduling 

requirements; education, training, experience, qualification, requalification, or other employment 

suitability requirements; safeguard plans, and materials control and accounting inventory 

 

146 Id. at 57-58. 

147 Id. at 57 (citing Exemption Issuance, 80 Fed. Reg. at 35,994). 

148 Entergy Answer at 40 (citing Petition at 52, 56-58). 

149 Staff Answer at 61. 

150 Entergy Answer at 41-42; Staff Answer at 65-66, 67-68. 
- 39 - 

scheduling requirements; scheduling requirements; surety, insurance, or indemnity 

requirements; or other requirements of an administrative, managerial, or organizational 

nature.151

Petitioners claim that the Staff’s “analysis consisted merely of a recitation of the factors 

in 10 C.F.R. § 51.22(b) and 10 C.F.R. § 51.22(c)(25).”152 We need not reach the adequacy of 

the Staff’s analysis of the factors set forth in 10 C.F.R. § 51.22(c)(25)(i)-(v), because the sixth 

factor is dispositive of the question. With respect to 10 C.F.R. § 51.22(c)(25)(vi), the Staff 

determined that “[t]he requirements for using decommissioning trust funds for decommissioning 

activities ... involve ... other requirements of an administrative, managerial, or organizational 

nature.”153 Petitioners do not specifically question the Staff’s analysis with respect to 10 C.F.R. 

§ 51.22(c)(25)(vi). As part of our discretionary review of the exemption, however, we reviewed 

the Staff’s reliance on the provision in this instance. 

The terms “administrative,” “managerial,” and “organizational” are not defined in 

10 C.F.R. Part 51. The regulatory history of section 51.22(c)(25) suggests that these terms 

refer to exemptions associated with ministerial changes rather than to exemptions with 

substantive effects, such as the one at issue here. The final rule promulgating the categorical 

exclusion for exemptions explained that “[f]or example, current ambiguities in the categorical 

 

151 See 10 C.F.R. § 51.22(c)(25)(vi). In addition, an exemption may only be issued if none of the 

following is present: (1) significant hazards consideration; (2) significant change in the types or 

significant increase in the amounts of any effluents that may be released offsite; (3) significant 

increase in individual or cumulative public or occupational radiation exposure; (4) significant 

construction impact; and (5) significant increase in the potential for or consequences from 

radiological accidents. Id. § 51.22(c)(25). 

152 Petition at 57 (citing Exemption Issuance, 80 Fed. Reg. at 35,994). 

153 Exemption Issuance, 80 Fed. Reg. at 35,994. 
- 40 - 

exclusion regulations have created delays in licensee decisions when organizational name 

changes occur, because these decisions must await the completion of an [environmental 

assessment and finding of no significant impact].”154 And the proposed rule stated that: 

[f]or example, the majority of the [environmental assessments and findings of no 

significant impact] addressed exemption requests concerning the following 

administrative issues: (1) Revising the schedule for the biennial exercise 

requirements for nuclear reactors in 10 CFR Part 50, Appendix E, Sections IV.F. 

2.b and c; (2) Applying updated NRC-approved ASME Codes; and (3) Training 

and experience requirements in 10 CFR Part 35, ‘‘Medical Use of Byproduct 

Material.’’155

In our view, use of decommissioning funds for matters other than reduction of residual 

radioactivity is not analogous to the examples provided above. The regulatory history of the 

categorical exclusion for exemptions does not support considering an exemption from a 

substantive requirement an “administrative, managerial, or organizational matter,” particularly 

where, as here, the Staff provides insufficient explanation for its conclusion. And the regulatory 

requirement is substantive in nature; it is intended to provide reasonable assurance that 

sufficient funds will be available for radiological decommissioning. For these reasons, we find 

that the requirement in section 50.82(a)(8)(i)(A) as applied in this instance is not administrative, 

managerial, or organizational in nature. 

In sum, the Staff has not provided adequate support for its finding regarding 10 C.F.R. 

§ 51.22(c)(25)(vi). Noting that the Staff has conducted environmental assessments for several 

 

154 Categorical Exclusions From Environmental Review; Final rule, 75 Fed. Reg. 20,248, 20,250 

(Apr. 19, 2010). 

155 Categorical Exclusions From Environmental Review; Proposed rule, 73 Fed. Reg. 59,540, 

59,545 (Oct. 9, 2008). 
- 41 - 

exemptions of this type at other facilities,156 we direct the Staff to conduct an environmental 

assessment to examine the environmental impacts, if any, associated with the exemption.157 

We deny Petitioners’ remaining requests for further environmental review.158

 

 

156 See, e.g., Duke Energy Florida, Inc.; Crystal River Unit 3 Nuclear Generating Plant, 80 Fed. 

Reg. 3662 (Jan. 23, 2015) (Crystal River Environmental Assessment); Southern California 

Edison; San Onofre Nuclear Generating Station, Units 2 and 3, 79 Fed. Reg. 42,837 (July 23, 

2014); Environmental Assessment and Finding of No Significant Impact; Final Issuance: 

Dominion Energy Kewaunee; Kewaunee Power Station, 79 Fed. Reg. 25,156 (May 2, 2014). 

157 We expect that the Staff will undertake the environmental analysis promptly, including 

considering whether “public participation [is] deemed practicable or appropriate with respect to 

the challenged exemption.” See Brodsky v. NRC, 704 F.3d 113, 122 (2d Cir. 2013). If the 

Staff’s review results in a determination of significant impacts, the Staff should promptly notify 

us and, at that time, we may reconsider whether the exemption should be stayed or vacated. 

158 The Staff has undertaken a comprehensive rulemaking on the decommissioning process. 

Recognizing that Petitioners seek relief now, we nonetheless encourage Petitioners to 

participate in that rulemaking to the extent that their concerns extend to general plant 

decommissioning efforts. See generally Advance Notice of Proposed Rulemaking, 80 Fed. 

Reg. at 72,358. 
- 42 - 

 CONCLUSION 

 For the foregoing reasons, we direct the Staff to analyze the environmental effects of 

the exemption request. We deny Petitioners’ remaining requests for relief. As discussed 

above, Petitioners have not shown that they are entitled to a hearing under the Atomic Energy 

Act. Further, we decline to grant a discretionary hearing in this matter; we have reviewed 

Petitioners’ claims as discussed in this decision and decline to undertake the other actions that 

Petitioners seek here. Petitioners raise challenges to oversight matters that are concerned with 

Entergy’s compliance with the terms of its license. As discussed above, Petitioners’ recourse in 

these circumstances is to seek enforcement action pursuant to 10 C.F.R. § 2.206 as discussed 

herein.159

IT IS SO ORDERED. 

 For the Commission 

NRC SEAL 

 /RA/ . 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

this 27th day of October 2016. 

 

159 Other than the issues we have expressly resolved today, nothing in our decision should be 

understood to prejudice the Staff’s resolution of any such enforcement action. 
APPENDIX 

Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. 

(Vermont Yankee Nuclear Power Station) 

Docket No. 50-271 

Renewed Facility Operating License; Renewed Operating License No. DPR-28 

J. License Transfer Conditions 

a. Decommissioning Trust 

(i) The decommissioning trust agreement must be in a form acceptable to the NRC. 

(ii) With respect to the decommissioning trust funds, investments in the securities or other 

obligations of Entergy Corporation and its affiliates, successors, or assigns shall be 

prohibited. In addition, except for investments tied to market indexes or other nonnuclear-sector mutual funds, investments in any entity owning one or more nuclear 

power plants are prohibited. 

(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. 

The decommissioning trust agreement shall further contain a provision that no 

disbursements or payments from the trust shall be made if the trustee receives prior 

written notice of objection from the Director of the Office of Nuclear Reactor Regulation. 

(iv) The decommissioning trust agreement must provide that the agreement cannot be 

amended in any material respect without 30 days prior written notification to the Director 

of the Office of Nuclear Reactor Regulation. 

(v) The appropriate section of the decommissioning trust agreement shall state 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.
Commissioner Svinicki, Dissenting in Part 

I fully join the majority position that the Petitioners have not provided a sufficient basis to 

find that the NRC unreasonably granted Entergy’s exemption request. I dissent on the limited 

question of whether the Petitioners sufficiently supported their NEPA claim. I find that they have 

not. As a result, I would uphold the Staff’s reliance on the categorical exclusion to satisfy 

NEPA. 

Even when we have considered petitions not contemplated by our regulations, such as 

the instant one, we have still applied our normal rules for adjudication.1 One such longstanding 

rule is our requirement that petitioners must raise specific challenges, both to fairly notify the 

other parties of the claims against them and to ensure that agency adjudications remain 

focused.2 In this case, the Petition only asserted that the Staff’s categorical exclusion analysis 

“consisted merely of a recitation of the factors listed,” which falls far short of meeting our 

stringent pleading requirements.3 The Petition does not challenge the Staff’s analysis of any 

specific factor, let alone demonstrate why that analysis is lacking. Moreover, contrary to 

Petitioners’ assertions, the Staff did not only recite the relevant factors but in fact explained why 

the exemption met each factor for a categorical exclusion in 10 C.F.R. § 51.22(c)(25)(vi).4

 

1 See generally Callaway, CLI-11-5, 74 NRC at 141. 

2 10 C.F.R. § 2.309(f); USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 455-

57, 472 (2006). 

3 Petition at 57. 

4 Exemption Issuance, 80 Fed. Reg. at 35,994. While the Staff’s explanation for why the 

exemption met each factor is concise, the Staff’s analysis is sufficient, particularly when read in 

context of the complete document, which explains why granting the exemption will not 

jeopardize Entergy’s ability to decommission the Vermont Yankee site. Id. 
- 2 - 

While the Petitioners’ reply brief may have provided additional detail and arguments, 

such efforts to rehabilitate an unsupported contention also contravene our longstanding 

procedural rules.5 Moreover, even when given full consideration, the reply brief does not 

contain sufficient information to show that the categorical exclusion is inapplicable. Petitioners 

argue, “Staff is incorrect in claiming that the exemption it granted Entergy was from ‘an 

administrative requirement that does not affect the environment.’ It is more than just 

‘administrative’ to approve the use of hundreds of millions of dollars that would otherwise be 

reserved for removing radiological contamination from a nuclear site.”6 But Petitioners’ 

argument rests on the same error as the rest of their pleading; in granting the exemption, the 

Staff confirmed that adequate funding will be available to decommission Vermont Yankee and 

the Petitioners have not demonstrated any error in this conclusion. As a result, Petitioners have 

also failed to show how the exemption, which simply pertains to how Entergy will fund ongoing 

activities at Vermont Yankee, would have an impact on the environment or constitutes anything 

beyond administrative. 

Finally, my colleagues note that the Staff prepared environmental assessments, as 

opposed to relying on a categorical exclusion, for similar decommissioning exemption requests.7 

But, the analyses in those documents are almost identical to the analysis the Staff provided in 

support of the categorical exclusion for Vermont Yankee. For example, in the most recent 

environmental assessment, the Staff noted, “[t]he proposed action involves exemptions from 

 

5 Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 

(2004). 

6 Petitioners’ Reply at 18 (quoting Staff Answer at 66). 

7 E.g., Crystal River Environmental Assessment, 80 Fed. Reg. at 3662. 
- 3 - 

requirements that are of a financial or administrative nature and that do not have an impact on 

the environment.”8 The Staff justified this conclusion by explaining that because the agency’s 

other regulations would provide a reasonable assurance that the decommissioning fund would 

be sufficient, “[t]here is no decrease in safety associated with the use of the Trust to fund 

activities associated with irradiated fuel management.”9

 For Vermont Yankee, the Staff’s analysis of the categorical exclusion concluded that the 

exemption request met the requirements for a categorical exclusion because it involved 

“recordkeeping requirements, reporting requirements, or other requirements of an 

administrative, managerial, or organizational nature.”10 This conclusion is supported by the 

earlier discussion of the exemption request that determined that in light of the remaining 

regulations, the agency has assurance that adequate funds would be available to decommission 

Vermont Yankee.11 Consequently, requiring the Staff to publish a new NEPA document that will 

simply reiterate the discussion in the earlier one strikes me as a needless exercise in formalism. 

For the foregoing reasons, I respectfully dissent from my colleagues’ decision to direct 

the Staff to prepare a new environmental analysis in this case but join them in the remainder of 

the decision. 

 

8 Id. at 3663. 

9 Id. 

10 Exemption Issuance, 80 Fed. Reg. at 35,994. 

11 Id. at 35,993-94. 
Commissioner Baran, Concurring in Part and Dissenting in Part 

I concur in part with and dissent in part from the Commission’s decision. 

I respectfully dissent from sections II.A and II.B of the decision. I would vacate the 

decommissioning trust fund exemption in this case and remand Entergy’s exemption request to 

the Staff for reconsideration as a rule using a public notice and comment process. However, I 

join section I of the majority decision and, recognizing that the Commission has allowed the 

exemption to remain in effect, I also join sections II.C and II.D of the Commission decision 

regarding Vermont’s arguments on thirty-day notices and the need to prepare an environmental 

assessment. 

In prior cases, the Commission has consistently held that, although NRC’s regulations 

authorize exemptions, “we consider an exemption to be an extraordinary equitable remedy to be 

used only sparingly.”1 In Honeywell, the Commission explained: 

The reason for this high standard is simple. Every NRC regulation has gone 

through the rulemaking process, including public notice-and-comment, and its 

underlying rationale has been explained in our Statements of Considerations ... 

Our exemption regulations are in place to provide equitable relief only when 

supported by compelling reasons – they are not intended to serve as a vehicle 

for challenging the fundamental basis for the rule itself.2

The Staff has granted two basic types of exemptions to decommissioning plants. Most 

exemptions are from regulatory requirements written to apply to operating reactors. Broadly 

speaking (and without opining on the merits of any particular exemption), the special 

circumstances justifying such exemptions are that the plant has shut down and many of the 

requirements for operating plants are unnecessary for or ill-suited to decommissioning plants. 

 

1 See, e.g., Honeywell, CLI-13-1, 77 NRC at 9 (internal quotation marks omitted) (citing, inter 

alia, Washington Public Power Supply System (WPPSS Nuclear Project Nos. 3 and 5), 

CLI-77-11, 5 NRC 719, 723 (1977)). 

2 Id. 
- 2 - 

The exemption in this case is different. The Staff granted Entergy an exemption from 

the decommissioning trust fund requirements in order to allow Entergy to use decommissioning 

funds for spent fuel management expenses—a non-decommissioning purpose. The 

Commission promulgated the applicable regulation specifically for decommissioning plants like 

Vermont Yankee. Section 50.82(a)(8)(i)(A) explicitly limits how a licensee may spend the 

money in a decommissioning trust fund. In promulgating the decommissioning rule, the 

Commission established the requirement to use decommissioning funds for only 

decommissioning activities to ensure that the fund would be adequate to complete the 

decommissioning tasks necessary to protect public health and safety.3

There are no special circumstances here warranting an exemption. The Staff points to a 

cash flow analysis to conclude that there is more money in the Vermont Yankee 

decommissioning trust fund now than is required by the formula in our regulations. But there is 

nothing unusual about that. This is the exact situation for which the rule was written. Our 

regulations require a minimum amount of funds in the account in given years to provide 

assurance that adequate funds will be available to eventually decommission the site. Every 

licensee complying with this requirement will necessarily have an amount equal to or greater 

than the minimum amount required in any given year. In fact, the regulations explicitly 

reference “an amount which may be more, but not less, than the amount” required by the 

formula established in the regulation.4 And the amount in the account today is far less than will 

ultimately be required to complete decommissioning. 

 

3 Decommissioning Final Rule, 61 Fed. Reg. at 39,289. 

4 10 C.F.R. § 50.75(b)(1). 
- 3 - 

The Staff has granted exemptions from NRC’s decommissioning trust fund regulation for 

five different decommissioning power plants—every power plant licensee that has requested 

this exemption—based on nearly identical analyses.5 While there is no limit on the precise 

number of exemptions of a certain type that can be issued, the Commission has previously 

recognized that the agency should not erode a rule by the overuse of exemptions.6

Here, the Staff has effectively repealed a Commission-approved rule promulgated in 

accordance with the Administrative Procedure Act (APA) and replaced it with a new staffgenerated rule without following the APA’s requirements for public notice and an opportunity for 

comment and without Commission approval. Because the Staff has granted every 

decommissioning trust fund exemption requested on nearly identical bases, I conclude that the 

Staff’s action is a de facto rulemaking that triggers the APA’s rulemaking requirements.7

 

5 See Exemption Issuance, 80 Fed. Reg. at 35,992; Duke Energy Florida, Inc.; Crystal River 

Unit 3 Nuclear Generating Plant, 80 Fed. Reg. 5795 (Feb. 3, 2015) (Crystal River Exemption 

Issuance); Southern California Edison Company; San Onofre Nuclear Generating Station, Units 

2 and 3, 79 Fed. Reg. 55,019 (Sept. 14, 2014) (SONGS Exemption Issuance); Zion Solutions, 

LLC; Zion Nuclear Power Station, Units 1 and 2; Exemption From Certain Requirements, 79 

Fed. Reg. 44,213 (July 30, 2014); License Exemption Request for Dominion Energy Kewaunee, 

Inc., 79 Fed. Reg. 30,900 (May 29, 2014) (Kewaunee Exemption Issuance). 

6 For example, when the Commission promulgated the exemption provisions in section 50.12, it 

stated: “the Commission will exercise its discretion to limit exemptions in any particular area if 

the ‘exceptions’ to the rule threaten to erode the rule itself.” Specific Exemptions; Clarification of 

Standards; Final Rule, 50 Fed. Reg. 50,764, 50,765 (Dec. 12, 1985). 

7 As the D.C. Circuit explained in Environmental Defense Fund, Inc. v. Gorsuch, “Scrutiny of a 

claimed exemption should be exacting where an agency seeks ... to undo all it accomplished 

through its rulemaking without giving all parties an opportunity to comment on the wisdom of 

repeal.” Envtl. Def. Fund, Inc. v. Gorsuch, 713 F.2d 802, 816-17 (D.C. Cir. 1983) (internal 

quotation marks omitted).
- 4 - 

Consequently, I would vacate the exemption and remand it to the Staff for consideration 

as a rule.8 One option would be for the Staff to use a rule of particular applicability when 

considering the exemption. As stated in the Attorney General’s manual on the APA, the term 

“rule” in the APA “includes agency statements not only of general applicability but also those of 

particular applicability applying either to a class or to a single person.”9 I would direct the Staff 

to publish rules relating to decommissioning trust funds in the Federal Register. Further, I would 

direct the Staff to consider future requests for exemptions from the decommissioning trust fund 

requirements as rules until the broad decommissioning power reactor rulemaking is complete. 

This approach would ensure that the NRC is complying with the APA and in turn allow for 

greater public participation in the decommissioning process.

 

8 Entergy also requested and the Staff granted an exemption from the thirty-day notification 

requirement of section 50.75(h)(1)(iv) for intended disbursements from the decommissioning 

trust fund. Exemption Issuance, 80 Fed. Reg. at 35,992. Entergy withdrew the license 

amendment request that would have subjected it to 10 C.F.R. § 50.75(h)(1)(iv), and the license 

condition requiring such notices is still in effect. Therefore, this exemption does not have a 

practical effect for Vermont Yankee. However, the Staff granted exemptions from the thirty-day 

notification requirements of section 50.75(h)(1)(iv) and (h)(2) to three other decommissioning 

reactor licensees on the basis of nearly identical analyses. See Crystal River Exemption 

Issuance, 80 Fed. Reg. at 5795; SONGS Exemption Issuance, 79 Fed. Reg. at 55,019; 

Kewaunee Exemption Issuance, 79 Fed. Reg. at 30,900. The Commission specifically 

promulgated the requirements of section 50.75(h) for decommissioning plants. Therefore, this 

type of exemption also falls into the category of exemptions that should be addressed through 

notice and comment rulemaking. 

9 Attorney General’s Manual on the Administrative Procedure Act (1947), at 13 (citation 

omitted). 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

ENTERGY NUCLEAR VERMONT YANKEE, LLC ) Docket No. 50-271-LA-3 

 AND ENTERGY NUCLEAR OPERATIONS, INC. ) 

 ) 

(Vermont Yankee Nuclear Power Station) ) 

 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER CLI-16-

17 have been served upon the following persons by the Electronic Information Exchange. 

U.S. Nuclear Regulatory Commission 

Atomic Safety and Licensing Board Panel 

Mail Stop: T-3 F23 

Washington, DC 20555-0001 

William J. Froehlich, Chairman 

William.Froehlich@nrc.gov 

Dr. Michael F. Kennedy 

Michael.Kennedy@nrc.gov

Dr. Richard E. Wardwell 

Richard.Wardwell@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop: O14A44 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

Catherine L. Scott, Esq. 

Beth Mizuno, Esq. 

Mitzi Young, Esq. 

Anita Ghosh, Esq. 

Jeremy Wachutka, Esq. 

Daniel Straus, Esq. 

Matthew Ring, Esq. 

John Tibbetts, Paralegal 

catherine.scott@nrc.gov 

beth.mizuno@nrc.gov

mitzi.young@nrc.gov 

anita.ghosh@nrc.gov 

jeremy.wachutka@nrc.gov

daniel.straus@nrc.gov 

matthew.ring@nrc.gov 

edward.williamson@nrc.gov

john.tibbetts@nrc.gov 

 

Cooper J Strickland, Law Clerk 

Cooper.Strickland@nrc.gov 

Vermont Department of Public Service 

112 State Street – Drawer 20 

Montpelier, VT 05620-2601 

Aaron Kisicki, Esq. 

Kyle Landis-Marinello, Esq. 

aaron.kisicki@state.vt.us

kyle.landis-marinello@vermont.gov 
DOCKET NO. 50-271-LA-3 

COMMISSION MEMORANDUM AND ORDER CLI-16-17

2 

U.S. Nuclear Regulatory Commission 

Office of the Secretary of the Commission 

Mail Stop: O-4F00 

Washington, DC 20555-0001 

Hearing Docket 

hearingdocket@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of Commission Appellate 

 Adjudication 

Mail Stop: O-7H4M 

Washington, DC 20555-0001 

ocaamail@nrc.gov

Morgan, Lewis & Bockius LLP 

1111 Pennsylvania Avenue NW 

Washington, DC 20004 

Paul M. Bessette, Esq. 

Stephen Burdick, Esq. 

Raphael Kuyler, Esq. 

Ryan Lighty, Esq. 

pbessette@morganlewis.com

sburdick@morganlewis.com 

rkuyler@morganlewis.com 

rlighty@morganlewis.com 

Entergy Services, Inc. 

101 Constitution Ave., NW 

Washington, DC 200012133 

Susan Raimo, Esq. 

sraimo@entergy.com

[Original signed by Brian Newell ] 

 Office of the Secretary of the Commission 

Dated at Rockville, Maryland 

this 27th day of October, 2016