Vermont DPS chief lambasts NRC over nuclear plant decommissioning

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Vermont DPS chief lambasts NRC over nuclear plant decommissioning

Thu, 05/15/2014 - 11:57am -- tim

by Timothy McQuiston Vermont Business Magazine Using a US Senate hearing on nuclear plant decommissioning, Chris Recchia, Commissioner of the Vermont Public Service Department, left no doubt that he felt the Nuclear Regulatory Commission is failing in its oversight of nuclear waste storage and the need for continued emergency planning after a plant is decommissioned. He said the NRC is leaving the states without recourse in the decommissioning process, even though the spent nuclear waste will remain onsite for the foreseeable future because there is no place to send it. He also doubted the wisdom that under an NRC proposal, spent fuel would be allowed to sit in a spent fuel pool instead of being transferred to dry cask storage. While Recchia was invited by Senator Bernie Sanders to talk to the Environment and Public Works Committee (May 14) generally about commercial reactor decommissioning across the country, the DPS commissioner pointedly referenced the circumstances in Vermont and the Entergy Vermont Yankee nuclear power station in Vernon. VY is planning to go offline by the end of this year.

Recchia said that: "If closed nuclear facilities create radiation hazards or if decommissioning ends up costing more than the plant owner has provided, the host state may have to bear both the financial and the public safety burden."

"The issues I have raised today are fundamental issues of states' rights," Recchia said in his statement before the committee. "Since the states are required to continue to house the nuclear plant and its wastes until current problems are resolved - which is not foreseeable - states must be allowed to play a full and effective role in the post-shutdown process. Without the legislation, the states are left with a problem they did not create and with imposed circumstances they cannot influence."

Recchia said that the NRC has often waived regulations (and abused its discretion) if asked by nuclear plant owners without input from the states and without holding a public hearing. He used the Vermont Yankee spent fuel pool as an example.

"All of these concerns about decommissioning and a role for the states and communities are inextricably linked to decisions about Spent Fuel Management (SFM)," Recchia said. "Without opining on the wisdom of the US Government taking responsibility for this aspect of the industry’s liability [the US government had long-ago promised plant operators a federal repository for spent fuel, but there still is no site opened or even located-EDITOR] problems that must be addressed include the management of fuel during operation and upon closure for as long as the fuel is on site. The NRC has not shown a willingness to address spent fuel management in a manner that is responsive to states’ interests. Our goal is to restore that site [in Vernon] to useful economic purposes as quickly and cost-effectively as possible. Right now, Vermont Yankee has about 3,879 fuel rod assemblies in its spent fuel pool (originally designed to hold about 350). The facility has 13 dry casks on site, room for 36, and will need 58 casks in all. For perspective, the Fukushima Reactor 4 pool had 1,533 assemblies in it at the time of the presumed hydrogen explosion that damaged the pool."

SEE RECCHIA TESTIMONY AND FULL WEBCAST: The Senate hearing was entitled: "Nuclear Reactor Decommissioning: Stakeholder Views.”
Wednesday, May 14, 2014

Recchia's Full Statement (click here for full statement and attachments):

TESTIMONY OF CHRISTOPHER RECCHIA

COMMISSIONER VERMONT PUBLIC SERVICE DEPARTMENT

BEFORE THE US SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE

“NUCLEAR REACTOR DECOMMISSIONING: STAKEHOLDER VIEWS”

MAY 14, 2014

Good Morning. Thank you Chairman Boxer, Ranking Member Vitter and members of
the Committee, for the opportunity to be here today to discuss Vermont’s observations regarding
nuclear decommissioning in general, and the lessons we’ve learned so far in our specific work on
the upcoming shutdown, and hopeful expeditious decommissioning, of the Vermont Yankee
Nuclear Power Station in Vernon, Vermont.

I say “hopeful” because I believe it is in everyone’s interest to see the plant
decommissioned promptly now that the decision to close the plant has been made. It is
particularly important to Vermonters that the site not remain mothballed for decades to come
when our economy is better served by a quick cleanup. But, left to rely on the existing NRC
structure, Vermont has precious little control over how and when decommissioning occurs, and
very little influence over how the NRC and Entergy, the owner of the plant, choose to proceed.
This needs to change, and my testimony today suggests several very reasonable and
measured steps to ensure Vermont, and other states similarly situated, have a meaningful role in
the NRC process going forward, and that the NRC is directed to take certain steps to move the
process in the right direction. I want to take a moment to acknowledge and thank Senator
Sanders for his leadership in Vermont Yankee issues over many decades and his efforts to
engage NRC constructively on these issues. More help is needed from Congress to ensure states’
rights are advanced and protected.

Brief History and Status of the Vermont Yankee Situation
Vermont willingly hosted the plant for the 40 years that its original license authorized,
beginning with operation in 1972 until the term of the original license ended in 2012. As we
neared the end of this period, the NRC granted the owner, Entergy, a 20-year renewal over
Vermont’s objection. Our belief was, then and now, that the plant had served its purpose, was at
the end of its useful life, and that our energy future rested elsewhere. The State was a needed
partner in the initial licensing of the plant and should have been a needed partner for any license
extension.

In 2011, under the leadership of Governor Peter Shumlin, and with overwhelming
support of Vermonters, we adopted a Comprehensive Energy Plan with the goal of obtaining
90% of all of Vermont’s energy needs from renewables. Nuclear power is not renewable. We
have also implemented the first statewide Energy Efficiency Utility that, since its inception in
1999, has saved Vermonters over a billion dollars in energy costs. The parent company of this
utility, Vermont Energy Investment Corporation, is now helping Washington, DC achieve
similar results. We also made sure to put our commitment to this renewable energy future into
practice – since March of 2012, Vermont has purchased no power from the VY Station.
In August of 2013, Entergy announced the closure of the plant, effective at the end of
2014. We reached a Settlement Agreement and Memorandum of Understanding (MOU) in
December of last year to enable us to support a Certificate of Public Good (a state-required
license) for continued operation through this period. While we are pleased with the agreement
reached under the circumstances, our ability to negotiate this agreement, and the necessity to do
so for the benefit of Vermonters, was hampered by the NRC’s limitations on a state’s
involvement in decommissioning, and the lack of responsiveness by the NRC to state concerns at
VY and elsewhere. In short, Vermont was not served well by the NRC’s past decisions and
current approach to decommissioning as an underpinning of these negotiations. We negotiated
with one hand tied behind our backs, and did the best we could for Vermonters.

Moving Forward
As a result of this most recent experience, the Vermont delegation, along with Vermont
Attorney General William Sorrell and Governor Peter Shumlin, wrote to and met with NRC
Chairman Macfarlane (February 11, 2014 meeting; March 4, 2014 letter – Exhibit 1) to discuss
the need for improvement. In a May 5, 2014 response (Exhibit 2), Chairman Macfarlane relays
that states are free to comment at two occasions: when the Post Shutdown Decommissioning
Activities Report (PSDAR) is submitted at the beginning of the process, and when a License
Termination Plan (LTP) is submitted at the end – which can be many decades later.
What the NRC fails to mention in this letter is that it is under no obligation to respond to
state concerns or comments, provides no opportunity for public participation through the NRC’s
independent hearing process, and indeed with respect to the PSDAR, does not even have to take
any formal action on that report. With this approach, the NRC has demonstrated it prefers not to
address, let alone resolve, issues of concern to states or local communities.

We acknowledge and accept that Congress gave the NRC sole responsibility for
regulating radiological health, safety and security at commercial nuclear power plants under the
Atomic Energy Act of 1954. However, that does not mean it should do so in a vacuum.
Decommissioning also involves a host of issues (many of which are economic and entirely
unrelated to radiological safety) that greatly affect local communities. The PSDAR is a facilitygenerated
report that guides all further decommissioning at a given facility. I know of no other
regulatory agency – from a local zoning board to state or federal agencies – that claims it is not
required to make an affirmative decision on a plan of this magnitude, complete with its reasoning
explained, and a responsiveness summary addressing comments received. This is particularly
important with the increasing number of merchant facilities that also have no public utility
oversight. Yet “no reply” is how the NRC chooses to address its responsibilities in the review of
a PSDAR, and based on the Macfarlane letter, apparently the NRC intends to continue to shirk
such decision-making into the future.

This is why legislation is so critical and so logical a step. It is necessary simply to
provide a process whereby states, tribes and local communities can have a meaningful role in
review of the PSDAR and provide comments to the NRC, and to require the NRC to formally
make a decision on the document, with consideration given to comments received.
This step is long overdue. The current statutory and regulatory system is outdated. It is a
system that might have made sense when nuclear power plants were solely owned by utilities,
since a state’s inherent authority over utilities and rate regulation would have given states a
strong role in post-closure decisions. With the switch to merchant generators, states have been
left without a say and without a federal agency willing to take its regulatory role into the 21st
century in an open and responsive way. It is hard to believe this is how Congress expected this
to unfold, and Congress should act now to correct this.

Examples of NRC Abuse of Discretion
There are many examples where the NRC has not acted in the best interest of the citizens
of the United States, but I’ll mention only two here: NRC’s willingness to exempt plants from
rules the NRC duly promulgated, and the NRC’s current direction on waste management – as
indicated by its discussion of spent nuclear fuel treatment in its Waste Confidence Rule and
accompanying Draft Generic Environmental Impact Statement (DGEIS) – a position it is
pursuing without regard to clear and compelling information to the contrary.

Exemptions:
The NRC would tell you it is only concerned with radiological health, safety and security
at commercial nuclear power facilities, and this has always been its mission since 1954. One
could reasonably assume then that all its rules and regulations are adopted with this single
purpose in mind. Why then does the NRC routinely exempt facilities from the rules it
promulgated and upon which the states and their citizenry rely? The NRC historically and
routinely “exempts” nuclear power plants from applicable regulatory requirements whenever the
industry claims there would be no safety risk from doing so. Such broad-sweeping exemptions,
often granted without any public input, upsets the expectations of other interested parties, such as
states and local governments, which rely upon the NRC to adhere to applicable regulations. If
regulations “on the books” are really not needed for radiological health, safety or security, then
those rules should be amended or repealed under a formal rulemaking process consistent with the
Administrative Procedures Act (APA), not simply held inapplicable whenever the NRC chooses
to grant an exemption.

Two specific examples of improper exemptions that are particularly problematic for
states include:

a. Exemptions to Emergency Preparedness requirements after a plant has shutdown.
This is particularly inappropriate for plants that still have fuel remaining in their spent
fuel pools. I have attached detailed comments on the Interim Guidance (Exhibit 3) where the
NRC staff recommendation is to allow elimination of the Emergency Planning Zone (EPZ) for
all licensed reactors once the last reactor fuel has been moved to the storage pool and cooled for
approximately 15 months. The assumed basis for these proposed exemptions is that spent
nuclear fuel remaining in the pool presents virtually equivalent off-site emergency risks as that in
dry cask – that is to say (according to the NRC), none. This defies logic. Leaving aside the
many scientific articles refuting that claim, the NRC staff themselves, in other documents, while
claiming that all of the risks are at acceptable levels, acknowledge that spent fuel in pools is
more risky than fuel stored in dry casks. This is an example of where the NRC does not
consistently develop or apply its rationale. Changes to existing rules need to undergo the rigor of
formal rulemaking so that this poorly supported reasoning can be fully vetted. Once the NRC
has determined, by rule, that particular safety requirements are essential, it should not be allowed
to create wholesale exemptions from those requirements, in a manner that public participation
and the protections of the APA are unavailable.

b. Exemptions to the requirement that Nuclear Decommissioning Trust (NDT) funds be
used solely for “decommissioning.”

The money in most NDTs is ratepayer money. Vermont Yankee’s NDT, for instance,
consists 100% of ratepayer contributions (plus accrued interest) from before Entergy purchased
the plant. Since owning the plant in 2002, Entergy has put not one dime into that trust fund, and
by agreement they were not obligated to. However, under non-NRC contracts, trust fund
agreements, and applicable Vermont Public Service Board orders, Vermont ratepayers have a
direct interest in that fund. The NRC should not be granting waivers or exemptions that allow
these decommissioning trust funds to be raided for activities the operator should otherwise be
planning to fund – things ranging from spent fuel management to maintenance of an EPZ after
closure. Plants, especially merchant plants, should be obligated to provide funds during their
operating period that ensure these activities are fully funded post-closure. States have a
legitimate interest in the expenditures of funds for at least two reasons:

(1) premature and nondecommissioning
related expenditures from the funds will delay, if not prevent, achieving the
level of funding needed for timely decommissioning; and

(2) in many situations, such as with Vermont Yankee, state ratepayers have a direct interest in the funds that remain in the NDT after
decommissioning. NRC should not be allowed to routinely grant exemptions, and especially not
without state involvement and response to legitimate concerns. NRC should also expressly
recognize that the operator may need other approvals (such as from the state) to use funds for
non-decommissioning purposes according to trust fund agreements or other non-NRC
obligations, and that NRC approval does not relieve a plant owner from these responsibilities.
The NRC needs to acknowledge these limitations in granting access to the trust funds upon the
request of the closed or closing plant.

Spent Fuel Management
Finally, all of these concerns about decommissioning and a role for the states and
communities are inextricably linked to decisions about Spent Fuel Management (SFM). Without
opining on the wisdom of the US Government taking responsibility for this aspect of the
industry’s liability, problems that must be addressed include the management of fuel during
operation and upon closure for as long as the fuel is on site. The NRC has not shown a
willingness to address spent fuel management in a manner that is responsive to states’ interests.
Our goal is to restore that site to useful economic purposes as quickly and cost-effectively as
possible. Right now, Vermont Yankee has about 3,879 fuel rod assemblies in its spent fuel pool
(originally designed to hold about 350). The facility has 13 dry casks on site, room for 36, and
will need 58 casks in all. For perspective, the Fukushima Reactor 4 pool had 1,533 assemblies in
it at the time of the presumed hydrogen explosion that damaged the pool. Important matters to
accomplish legislatively include:

  • Move SNF out of the pool on a regular basis during operations;
  • Upon closure – move remaining fuel out within 5 to 7 years thereafter;
  • Ensure funding of SNF movement during operation; and
  • Encourage prompt DOE Reimbursement

For merchant facilities, the NRC – as overseer of the fuel management – needs to ensure
funds are available from facilities. States need a role in the management of SNF after closure, as
demonstrated by the NRC’s incomprehensible Waste Confidence Rule which relies on a DGEIS
that concludes fuel is equally as safe in the spent fuel pools as in dry casks (Exhibit 4).
Ironically, one of the reasons stated for this conclusion is that the Emergency Response Plans
and EPZs in place (now proposed, as discussed above, to be generically eliminated by
exemption) help protect the public when fuel is stored in a pool. Regardless of the presence or
absence of an EPZ, common sense tells us a passive system is less risky than an active one.

Conclusion
The increasing numbers of closing nuclear plants, along with the fact that many are
merchant facilities, require the NRC to be a vigilant protector of nuclear health, safety and
security at commercial nuclear power plants in the U.S. The lack of affirmative decisions on
important decommissioning documents, along with lack of responsiveness and reaction to state
interests, speak to the need for a meaningful role of states in NRC processes as these plants come
in for decommissioning. Exemptions to rules should be rare, not routine, and wherever generic
changes to rules are warranted, they should be done by rulemaking, not waivers. Spent Nuclear
Fuel should be moved to dry cask storage regularly throughout the life of a plant, so that it does
not build up in the pools, and all moved to dry cask within a short period of time after closure.
Until that is done, an effective EPZ must be maintained. Expenses for all these truly operational
matters should be covered during plant operation, with costs related to spent fuel management
and storage reimbursed promptly and regularly by DOE in fulf,rllment of its obligations.

If closed nuclear facilities create radiation hazards or if decommissioning ends up costing
more than the plant owner has provided, the host state may have to bear both the financial and
the public safety burden. The issues I have raised today are fundamental issues of states' rights.
Since the states are required to continue to house the nuclear plant and its wastes until current
problems are resolved - which is not foreseeable - states must be allowed to play a full and
effective role in the post-shutdown process. Without the legislation, the states are left with a
problem they did not create and with imposed circumstances they cannot influence.
Thank you very much for the opportunity to be here today and to share these thoughts
with you. I am happy to answer any questions you may have now, or in the future, as you
consider these important issues.

Respectfully submitted,
Christopher Recchia
Commissioner

Photos: Vermont Yankee from across the Connecticut River. Screen shot of Chris Recchia during his Senate testimony May 14, 2014. PDF courtesy of Senate Environment and Public Works Committee.