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NYS AG Sues NRC Over Indian Point Decomissioning Matters

Indian Point nuclear power plant, Buchanan, NY
WAMC, Allison Dunne
Indian Point nuclear power plant, Buchanan, NY

New York state Attorney General Letitia James on Friday filed a lawsuit against the Nuclear Regulatory Commission. The suit comes after the NRC denied the state’s petition for a public hearing on the decommissioning of the Indian Point nuclear power plant in Westchester County.

In its January 15 decision, the NRC denied requests for hearings and to intervene in the license transfer from Entergy Nuclear to Holtec International, as owner, and Holtec Decommissioning International, as decommissioning operator.

Attorney General James had filed a petition on behalf of the state in February to intervene in the license transfer, arguing that the transfer violates the NRC's rules for approving a nuclear facility license transfer. The Democrat also requested that the NRC hold a public hearing on whether the proposed Holtec licensees have demonstrated financial qualification, whether they have shown adequate decommissioning financial assurance, and whether their decommissioning plans will ensure adequate funding for decommissioning and the other activities for which Holtec sought to use the decommissioning funds, particularly spent fuel management. NRC spokesman Neil Sheehan says the Commission does not comment on pending litigation and will issue a response in due time. He did, however, address the January decision.

“We received requests for hearings on the Indian Point license transfer application from a number of organizations and individuals, including the New York attorney general’s office. And the Commission just recently issued a decision on those requests, denying them,” Sheehan says. “And this was based on a very careful review of a number of issues, including the ability of Holtec to properly fund the decommissioning work at Indian Point.”

The NRC had approved Indian Point’s license transfer from Entergy to Holtec in November, saying it could still decide to allow a public hearing after the fact. In February, the Town of Cortlandt, Village of Buchanan and the Hendrick Hudson School District filed petitions seeking party status, and requested public hearings. Riverkeeper also sought to intervene and called for public hearings. The state attorney general’s suit also challenges the NRC’s decision to allow Holtec to use more than $630 million of the plant’s dedicated decommissioning trust funds for spent fuel management costs, which she argues is the legal and financial responsibility of the federal government. The NRC’s Sheehan:

“And what Holtec had to do was present us with a breakdown as far as how they would carry out the decommissioning work and, at the same time, be able to adequately fund spent fuel management,” says Sheehan. “And we’ve approved, not only for Indian Point but for a number of other plants, we’ve approved the use of decommissioning trust fund dollars for spent fuel management.”

Sheehan says the NRC continually monitors the funds during decommissioning and that Holtec has to annually report to the NRC its decommissioning trust fund status. Democratic New York state Senator Pete Harckham’s 40th District includes Indian Point. He supports the attorney general’s legal action.

“It’s outrageous that the NRC would go ahead and make a decision like this without holding a public hearing, as they’re supposed to. The state wants to weigh in, local officials want to weigh in, the community has a right to weigh in, so the NRC waiving the hearing is absolutely outrageous,” Harckham says. “Secondly, allowing Holtec to divert over $600 million in decommissioning activity money to management of the spent fuel casks is also just a dip in the ratepayer’s pocket. That money is supposed to go for decommissioning activates. The federal government is supposed to pay for cask management. And what’s further outrageous is since Holtec manufactures these casks, that money is going directly in their pocket and to their bottom line.”

A Holtec spokesman deferred comment to the NRC. U.S. Senator Charles Schumer was among federal lawmakers who called on the NRC last year to hear the state’s and communities’ concerns before ruling on a license transfer. In a statement on the lawsuit, Schumer urged the NRC to immediately reverse its January decision and says that allowing Indian Point to change hands without a proper public hearing is a slap in the face to all who live and work in the communities surrounding the plant. Harckham, who sat on the state’s Indian Point Closure Task Force, says a new task force is on the horizon.

“We worked with the governor at the end of last year. He’s going to be establishing a decommissioning task force, which will be a new task force for state agencies and stakeholders to oversee the decommissioning,” says Harckham. “And part of it will be a focus on that money because that is ratepayer money, and New York state has a vested interest in that money. So we’re very concerned, but first let’s see how the litigation goes. We think that’s the best approach.”

In January, Attorney General James led a coalition of 12 states in supporting Massachusetts’s challenge to the NRC’s 2019 approval for the transfer of the Pilgrim Nuclear Power Station’s license to Holtec, without affording the Commonwealth a hearing to address its concerns about Holtec’s ability to successfully oversee the facility’s decommissioning. The case was settled in June. Again, the NRC’s Sheehan:

“The Massachusetts attorney general’s office did file a lawsuit in similar fashion to what’s now going to take place with Indian Point and they ultimately reached a settlement agreement with Holtec and ended up dropping that litigation,” says Sheehan.

Indian Point Unit 2 permanently shut down in April 2020 and Unit 3 is slated to permanently shut down by April 2021. Indian Point Unit 1 was shut down in 1974. The license transfer would take place after the shutdown of Unit 3.

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