In the Matter of Entergy Nuclear Operations, Inc.; Entergy Nuclear Fitzpatrick, LLC (James A. FitzPatrick Nuclear Power Plant); Order Approving Indirect Transfer of Facility Operating License, 45088-45089 [E8-17689]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 73, Number 149 (Friday, August 1, 2008)]
[Notices]
[Pages 45088-45089]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-17689]


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NUCLEAR REGULATORY COMMISSION

[Docket Nos. 50-333 and 72-12]


In the Matter of Entergy Nuclear Operations, Inc.; Entergy 
Nuclear Fitzpatrick, LLC (James A. FitzPatrick Nuclear Power Plant); 
Order Approving Indirect Transfer of Facility Operating License

I

    Entergy Nuclear Operations, Inc. (ENO) and Entergy Nuclear 
FitzPatrick, LLC (EN-FitzPatrick) are co-holders of the Facility 
Operating License, No. DPR-59, which authorizes the possession, use, 
and operation of the James A. FitzPatrick Nuclear Power Plant 
(FitzPatrick). FitzPatrick is a boiling water nuclear reactor that is 
owned by EN-FitzPatrick and operated by ENO. The facility is located in 
Scriba, Oswego County, New York.

II

    By application dated July 30, 2007, as supplemented by letters 
dated October 31, and December 5, 2007, and January 24, March 17, April 
22, and May 2, 2008, ENO, acting on behalf of itself and EN-
FitzPatrick, requested that the U.S. Nuclear Regulatory Commission 
(NRC, the Commission), pursuant to Section 50.80 of Title 10 of the 
Code of Federal Regulations (10 CFR), consent to the proposed indirect 
transfer of control of the FitzPatrick license, including the general 
license for the independent spent fuel storage installation.
    EN-FitzPatrick is currently a direct wholly owned subsidiary of 
Entergy Nuclear New York Investment Company 1 which, in turn, is a 
direct wholly owned subsidiary of Entergy Nuclear Holding Company 
1. Seventy-five percent of Entergy Nuclear Holding Company 
1 is directly owned by Entergy Corporation while the remaining 
25 percent is directly owned by Entergy Global, LLC. Entergy Global, 
LLC is a direct wholly owned subsidiary of Entergy International 
Holdings LTD which, in turn, is a direct wholly owned subsidiary of 
Entergy Corporation. Therefore, under the current corporate structure, 
Entergy Corporation is the indirect owner of 100 percent of EN-
FitzPatrick.
    Under the proposed corporate restructuring, a new holding company, 
Enexus Energy Corporation (Enexus), will be created. Initially, the 
shareholders of Entergy Corporation will separately own the shares of 
Enexus and, as such, Enexus will be owned by the public. Entergy 
Nuclear Holding Company 1 will become a direct wholly owned 
subsidiary of Enexus. Entergy Global, LLC, Entergy International 
Holdings LTD, and Entergy Nuclear New York Investment Company 1 will be 
eliminated. Accordingly, following the corporate restructuring, Enexus 
will acquire indirect control of 100 percent of EN-FitzPatrick.
    ENO, the operator of the FitzPatrick facility, is currently a 
direct wholly owned subsidiary of Entergy Nuclear Holding Company 
2 which, in turn, is a direct wholly owned subsidiary of 
Entergy Corporation. Therefore, Entergy Corporation is currently the 
indirect owner of 100 percent of ENO.
    Under the proposed corporate restructuring, Entergy Nuclear Holding 
Company 2 will be eliminated and ENO will become a direct 
subsidiary of a new parent company called EquaGen, LLC. EquaGen, LLC 
will be owned in equal shares by two new intermediate holding companies 
as follows. Entergy EquaGen, Inc. is being created as a direct 
subsidiary of Entergy Corporation and will own 50 percent of EquaGen, 
LLC. Similarly, Enexus EquaGen, LLC is being created as a direct 
subsidiary of Enexus and will also own 50 percent of EquaGen, LLC. 
Accordingly, following the corporate restructuring, Entergy Corporation 
and Enexus will each have indirect control of 50 percent of ENO.
    Finally, ENO will be converted from a corporation to a limited 
liability company and its name will be changed from Entergy Nuclear 
Operations, Inc. to EquaGen Nuclear, LLC. Under Delaware law, EquaGen 
Nuclear, LLC will assume all of the rights and responsibilities of ENO, 
and it will be the same company (legal entity) both before and after 
the conversion and name change. Also, EN-FitzPatrick will undergo a 
name change to become Enexus Nuclear FitzPatrick, LLC. The staff 
understands that ENO will request an administrative license amendment 
to conform the FitzPatrick license in the near future.
    Notice of the requests for approval and an opportunity for a 
hearing was published in the Federal Register on January 16, 2008 (73 
FR 2950). By petition dated February 5, 2008, Locals 369 and 590, 
Utility Workers Union of America (UWUA), American Federation of Labor-
Congress of Industrial Organization, representing plant workers at the 
Pilgrim Nuclear Power Station located in Plymouth, Massachusetts, 
responded to the Federal Register notice and requested a hearing and 
leave to intervene as a party in the FitzPatrick proceeding. On June 
12, 2008, Local 369 filed a notice of withdrawal of its petition to 
intervene. The notice of withdrawal did not apply to Local 590.
    The request for a hearing is currently pending before the 
Commission. Pursuant to 10 CFR 2.1316, during the pendency of a 
hearing, the staff is expected to promptly proceed with the approval or 
denial of license transfer requests consistent with the staff's 
findings in its safety evaluation. Notice of the staff's action shall 
be promptly transmitted to the presiding officer and parties to the 
proceeding. Commission action on the pending hearing requests is being 
handled independently of this action.
    Pursuant to 10 CFR 50.80(a), no license, or any right thereunder, 
shall be transferred, directly or indirectly, through transfer of 
control of the license, unless the Commission gives its consent in 
writing. Upon review of the information in the application as 
supplemented and other information before the Commission, and relying 
upon the representations and agreements in the application as 
supplemented, the NRC staff concludes that the proposed indirect 
transfer of control of the license held by EN-FitzPatrick to Enexus, as 
described

[[Page 45089]]

herein, will not affect the qualifications of EN-FitzPatrick as holder 
of the FitzPatrick license. The indirect transfer of control of the 
license is otherwise consistent with applicable provisions of law, 
regulations, and orders issued by the NRC. Furthermore, the NRC staff 
concludes that the proposed corporate restructuring involving new 
intermediate and ultimate parent companies over ENO, as described 
herein, will not affect the qualifications of ENO as holder of the 
FitzPatrick license. The indirect transfer of control of the license as 
held by ENO, to the extent affected by the proposed restructuring, is 
otherwise consistent with applicable provisions of law, regulations, 
and orders issued by the Commission.
    The NRC staff concludes that the conversion of Entergy Nuclear 
Operations, Inc. to EquaGen Nuclear, LLC would not constitute a direct 
transfer of the licenses to the extent held by ENO. Therefore, no 
consent to the proposed conversion is necessary.
    The findings set forth above are supported by the NRC's safety 
evaluation dated July 28, 2008.

III

    Accordingly, pursuant to Sections 161b, 161i, 161o, and 184 of the 
Atomic Energy Act of 1954, as amended, 42 U.S.C. 2201(b), 2201(i), 
2201(o), and 2234; and 10 CFR 50.80, It is hereby ordered that the 
application regarding the indirect license transfer discussed above 
related to the proposed corporate restructuring and establishment of 
Enexus is approved, subject to the following conditions:
    (1) EN-FitzPatrick shall enter into the $700 million Support 
Agreement with Enexus Energy Corporation as described in the 
application, no later than the time the proposed transactions and 
indirect license transfer occurs. EN-FitzPatrick shall take no action 
to cause Enexus Energy Corporation, or its successors and assigns, to 
void, cancel, or modify the Support Agreement or cause it to fail to 
perform, or impair its performance under the Support Agreement, without 
prior written consent of the NRC. The Support Agreement may not be 
amended or modified without 30 days prior written notice to the 
Director of the Office of Nuclear Reactor Regulation or his designee. 
An executed copy of the Support Agreement shall be submitted to the NRC 
no later than 30 days after the completion of the proposed transactions 
and the indirect license transfer. EN-FitzPatrick shall inform the NRC 
in writing anytime it draws upon the Support Agreement.
    (2) The ten separate support guarantees from various Entergy 
subsidiaries, which total $315 million, including the support guarantee 
relating to FitzPatrick, may be revoked when, and conditioned upon, 
implementation of the new $700 million Support Agreement at the time 
the proposed restructuring and indirect license transfer are completed.
    (3) Should the proposed corporate restructuring and establishment 
of Enexus not be completed within one year from the date of this Order, 
this Order shall become null and void, provided, however, upon written 
application and good cause shown, such date may be extended by Order.
    This Order is effective upon issuance.
    For further details with respect to this Order, see the application 
dated July 30, 2007, as supplemented by letters dated October 31, and 
December 5, 2007, and January 24, March 17, April 22, and May 2, 2008, 
and the NRC's safety evaluation dated July 28, 2008, which are 
available for public inspection at the Commission's Public Document 
Room (PDR), located at One White Flint North, Public File Area 01 F21, 
11555 Rockville Pike (first floor), Rockville, Maryland and accessible 
electronically from the Agencywide Documents Access and Management 
System (ADAMS) Public Electronic Reading Room on the Internet at the 
NRC Web site, https://www.nrc.gov/reading-rm/adams.html. Persons who do 
not have access to ADAMS or who encounter problems in accessing the 
documents located in ADAMS, should contact the NRC PDR Reference staff 
by telephone at 1-800-397-4209, 301-415-4737, or by e-mail at 
pdr@nrc.gov.

    Dated at Rockville, Maryland, this 28th day of July 2008.

    For the Nuclear Regulatory Commission.
 Timothy J. McGinty,
Acting Director, Division of Operating Reactor Licensing, Office of 
Nuclear Reactor Regulation.
[FR Doc. E8-17689 Filed 7-31-08; 8:45 am]
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