Nuclear Power in the Age of Decommissioning


This is the seventh issue of WilmerHale’s 10-in-10 Hot Topics in Energy Series. Over the course of 10 weeks, our attorneys will share insights on current and emerging issues affecting the US energy sector. Attorneys from across various practice groups at the firm will offer their take on issues ranging from congressional investigations, to the impact of key regulatory reforms, to emerging trends in domestic litigation and international arbitration.

The United States is home to 60 commercial nuclear power plants which house 98 operating reactors—more than any other country in the world. Nuclear power accounts for approximately 20% of the nation’s electrical production. But the existing fleet of nuclear facilities is aging, and no new plants have been built in recent decades. As if on cue, a new business sector is developing to pursue the considerable opportunities presented by those greying plants, and regulators are scrambling to address financial, environmental, and public health issues presented in that rapidly evolving business climate.

I. From Operations to Decommissioning

Although successful relicensing proceedings have extended the operating lives of a number of existing nuclear facilities, more than a dozen plants are expected to be retired from service in the coming years. As a result, many facility owners will soon face new questions that simultaneously present great opportunity while also posing practical and legal challenges. All are associated not with operating the plants, but rather with decommissioning them. 

In decommissioning, plant owners face daunting technical obstacles and complex regulatory regimes, made more difficult by the Department of Energy’s ongoing breach of its obligation to provide for disposal of spent nuclear fuel and the limited options for disposal of other radioactive material. The associated costs are high: plant-specific estimates range from hundreds of millions into the billions. Decommissionings conducted by plant owner/operators often have run over budget, typically following project delays due to discovery of environmental contamination beyond what was anticipated, or cost increases associated with radioactive waste disposal.

Faced with those challenges, facility owners are proposing creative solutions, including some that shift the burden—and legal liability—for nuclear decommissioning to new entities with expertise in demolition and facility decommissioning, as opposed to generating electrons. The proposition has the potential to benefit all stakeholders. The prospect of completing decommissioning faster and more cost effectively than could the facility operator is attractive for the new industry entrants, which hope to claim as added profit at least some funds in the decommissioning trust accounts maintained by each plant. And the possibility of more quickly transitioning a nuclear facility site to a new productive use offers significant public benefit.

Recent license transfers in connection with decommissioning plants in Illinois, Wisconsin, and Vermont, as well as a proposal now under review in Massachusetts, serve as useful blueprints for the numerous additional plants that soon will shut down. Those transfers present proponents with potentially significant income potential and regulators with a raft of complex legal, political, and financial security questions. That combination of opportunities and risks must be addressed in parallel, often through a regulatory process that did not anticipate the evolving financial and compliance strategies of these new industry entrants. 

II. Regulation of the Decommissioning Process 

Nuclear power plant licensees are responsible for safely decommissioning a nuclear facility once it ceases operation; the licensee’s obligations include managing spent nuclear fuel which remains at the facility. That process primarily involves safely removing the plant from service, addressing radioactive and other contamination, dismantling plant systems and structures, and reducing residual radioactivity to a level that permits safe release and reuse of the property. 

Dual regulatory regimes govern decommissioning. At the federal level, the Nuclear Regulatory Commission (“NRC”) has set strict technical and financial requirements. Among other federal obligations, plant licensees must submit reports detailing planned decommissioning activities, a schedule for accomplishing them, and an estimate of anticipated cost. The licensee must demonstrate that the financial resources available for decommissioning are sufficient to execute that plan, and the NRC may require additional financial assurances if it determines that funding may fall short. NRC oversight and inspection continues throughout the decommissioning process, until the licensee is able to demonstrate that the facility site is sufficiently decontaminated as to warrant release of the property for other uses. 

Although, as a general proposition, the federal Atomic Energy Act (“AEA”) preempts states and other government entities from regulating radiological safety, many issues critical to decommissioning projects remain within the ambit of state law. State regimes differ, but some provide authorities to public utility commissions and environmental and health regulators that are relevant to decommissioning work. Operators will have to navigate state standards for land use, for example. And state governments have an interest in ensuring that plant sites are remediated in accordance with state standards, including those that apply to non-radiological contaminants.

III. Liability Transfers

Against that backdrop, operators and decommissioning specialists have in recent years devised transactions intended to direct ownership of the deactivated facility and the obligation to decommission it to business entities better suited to those tasks than are traditional plant operators. So far, three operators have obtained approval to transfer their NRC licenses to a third-party decommissioning entity. The ensuing proceedings have analyzed the combination of private financial opportunities and public financial risks presented by such proposals. Those early examples show that, after review, the NRC as well as state regulators may be willing to sign off on creative solutions, and a study of the proceedings provides useful intelligence for the next set of nuclear plants headed toward decommissioning.

The first example of a license transfer for decommissioning involved the two-unit Zion plant in Illinois. Exelon Generating Company LLC (“Exelon”) shut the plant down in 1998. In 2008, Exelon proposed to transfer the license for each unit to a subsidiary of EnergySolutions LLC (“EnergySolutions”), a decommissioning and radioactive waste disposal company. The NRC approved the transfer, which was finalized in 2010. Exelon still owns the property on which the plant sits, and following decommissioning and partial license termination, EnergySolutions will apply to the NRC to transfer back to Exelon the remaining operative license. At that point, the license will be limited to addressing obligations to manage spent nuclear fuel and other highly radioactive waste and the structure that holds it (the independent spent fuel storage installation, or “ISFSI”). 

The NRC approved a second and similar license transfer for the La Crosse plant in Wisconsin in 2016. The La Crosse plant had been shut down in 1987 by Dairyland Power Cooperative. Again, the transferee (also a subsidiary of EnergySolutions) acquired the license to maintain and decommission the plant, but title to the plant remained with the owner. And as with Zion, following partial site release and license termination, the parties anticipate that the NRC will approve a transfer of the remaining license back to the owner, which will maintain the spent nuclear fuel and ISFSI.

In 2018, the NRC approved a more complete and permanent transfer of the Vermont Yankee plant. Upon shutting down in December 2014, the licensees, subsidiaries of Entergy Corporation (“Entergy”), announced plans to decommission the plant through the long-term, safe storage (“SAFSTOR”) method, which would have involved mothballing the plant for decades to allow radioactivity to decay while the decommissioning trust fund grew. Two years later, Entergy proposed, instead, to transfer the plant—and its decommissioning trust—to allow NorthStar Group Services, Inc. (“NorthStar”), a company focused on large-scale demolition and environmental remediation, to perform the decommissioning on an accelerated basis. Federal and state approvals now in hand, NorthStar plans to complete the project in 7-8 years, instead of the 60 years permitted under the SAFSTOR approach. Unlike Zion and La Crosse, there will be no return of the plant license to Entergy after decommissioning.

The industry is reacting to those examples. Holtec International (“Holtec”) has reached agreements to acquire Entergy’s Pilgrim (Massachusetts) and Palisades (Michigan) plants and Exelon’s Oyster Creek (New Jersey) plant when they shut down. Holtec will need to navigate approvals processes similar to the ones pursued by EnergySolutions and NorthStar; that process has already begun with respect to Pilgrim. As the opportunities presented by the aging nuclear fleet become clear, the responding industry is growing. Holtec, for example, has announced a joint venture with SNC-Lavalin Group expressly to pursue decommissioning opportunities, and NorthStar has entered a joint venture with Orano (formerly Areva).

A. NRC Approval of Alternative Decommissioning Models 

In approving each of the three license transfers described above, the NRC showed a willingness to entertain innovative approaches that allocate decommissioning obligations to those potentially better suited to handle them. And with the approval at Vermont Yankee, the NRC permitted for the first time a transaction in which a plant owner permanently transferred its operating license and the corresponding obligations to manage spent nuclear fuel to an acquiring company for the sole purpose of decommissioning. 

To secure NRC approval of a license transfer, the acquiring company must demonstrate that it can assume the obligations of the license and execute them without endangering the health and safety of the public and otherwise in accordance with applicable NRC regulations. In applying that standard, the NRC looks, among other inquiries, to the acquiring company’s financial wherewithal. Here, too, the NRC has shown flexibility. In approving the Vermont Yankee transfer, the NRC for the first time took into account expected proceeds from an anticipated future settlement (as opposed to an existing agreement) with the Department of Energy as a funding source for spent fuel management activities. 

B. States and Stakeholders in License Transfers

In addition to NRC approvals, license transfers may trigger state licensing regimes, requiring approval from state public utility authorities. Such was the case in Vermont, where public utility commission (“PUC”) approval was required to transfer the plant’s state-level operating license from Entergy to NorthStar. 

That approval was secured through a negotiated resolution of concerns identified by State energy, environmental, and health authorities along with other stakeholders—including public interest, governmental, and tribal participants—who had intervened in the PUC proceeding. Those complex negotiations resulted in a Memorandum of Understanding under which NorthStar and Entergy agreed to secure a suite of financial assurance tools and to abide by substantive criteria, all designed to ensure that the project will be adequately funded and protective of human health and the environment.

Public engagement is also an essential aspect associated with license transfer proposals (and of the decommissioning process in general). NRC regulations expressly provide the opportunity for public hearings at various stages, including public meetings prior to a license amendment approving any transfer. State agencies and other local stakeholders are also likely to intervene before the NRC and in any state proceedings. Local stakeholders and host communities, of course, have a significant interest in ensuring successful decommissioning and site remediation. 

Proceedings for the proposed Pilgrim, Palisades, and Oyster Creek transfers are just getting or will soon get under way. The formation of new participants for this growing and complex segment suggests additional transfers are likely to be proposed. Whether the transactions proceed will depend on the ability of the participants and reviewers to conduct proceedings that identify and navigate the corresponding—and sometimes offsetting—combination of risk and benefit. 

IV. Conclusion

The challenges and opportunities that operators of U.S. nuclear plants heading towards decommissioning will encounter are distinct from those that arise in connection with constructing or operating those plants. Longstanding regulatory regimes focus on those phases of a facility’s life; those programs did not necessarily anticipate the opportunity that is perceived by utilities and new entrants into the decommissioning sector. Operators are increasingly turning to specialists willing to take on decommissioning responsibility in consideration of the associated profit potential. Early examples suggest that regulatory authorities will allow these transfers, and the transfer review process provides opportunities for stakeholders to identify significant interests. Transfer proponents that understand and effectively address the objectives of regulators and other stakeholders stand to earn handsome rewards while making former facility sites available for beneficial re-use years and often decades earlier than anticipated.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© WilmerHale | Attorney Advertising

Written by:


WilmerHale on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.