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NYAG Files Lawsuit To Support Safe, Rapid & Complete Dismantling Of Indian Point

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New York Attorney General Letitia James today filed a lawsuit, on behalf of the state of New York, against the federal Nuclear Regulatory Commission (NRC) over the decommissioning of the Indian Point nuclear power facility in the lower Hudson Valley. The suit challenges the NRC’s denial, last week, of New York’s petition for a hearing on the state’s concerns regarding the decommissioning plan for Indian Point, proposed by Holtec International and its subsidiaries (Holtec). The 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 is the legal and financial responsibility of the federal government. 

“For the health and safety of New Yorkers, it is imperative that Indian Point be safely, rapidly, and thoroughly dismantled,” said Attorney General James. “The NRC is attempting to bypass critical transparency and accountability steps, and also is seeking to make New Yorkers pay for the job. The NRC’s unwillingness to hear New York’s valid concerns is a slap in the face to all New Yorkers. I am committed to fighting back against the NRC’s misguided and illegal actions and ensuring that Indian Point is decommissioned in a responsible way.”

In 2017, Entergy — the owner of Indian Point — agreed to close the two remaining operating units at the site. Unit 2 powered down in April 2020, and Unit 3 is scheduled to cease operations in April 2021. On January 23, 2020, the NRC announced that it was considering approval of an application by Entergy to transfer the Indian Point license — and the facility’s decommissioning trust funds — to Holtec for decommissioning.

Decommissioning, the radiological clean-up and dismantling of a nuclear facility, is extremely demanding, both technically and financially. Accordingly, the NRC requires that nuclear facilities establish and maintain funding to pay for eventual facility decommissioning following closure. In the case of Indian Point, its three decommissioning trusts were capitalized by New York ratepayers through electricity bills. Holtec obtained the NRC’s approval to use the trust money, not only to conduct the required radiological decommissioning, but also to fund spent fuel management. Of the approximately $2.1 billion of aggregated trust funds intended to decommission the facility, Holtec intends to spend more than $630 million for spent fuel management alone, raising concerns regarding the sufficiency of the remaining funds to conduct safe and comprehensive decommissioning at a site known to harbor substantial contamination. The federal government has a legal obligation to reimburse spent fuel management costs, but the NRC’s approval allows Holtec to pocket those reimbursements rather than returning them to the decommissioning trust funds.

On February 12, 2020, Attorney General James filed a petition, on behalf of the state of New York, to intervene in the license transfer, arguing that the transfer violates the NRC’s rules for approving a nuclear facility license transfer. Attorney General James 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 actually ensure adequate funding for decommissioning and the other activities for which Holtec sought to use the decommissioning trusts, particularly spent fuel management. On March 24, 2020, and again, on October 07, 2020, New York opposed Holtec’s request for an exemption from the NRC’s regulations that prohibit the use of trust funds for non-decommissioning activities.

Today’s lawsuit was filed in the U.S. Court of Appeals for the District of Columbia Circuit.

“The NRC has once again failed to prioritize the real and substantive concerns of Lower Hudson Valley residents by denying the public hearing requests by the Town of Cortlandt, Village of Buchanan, Hendrick Hudson School District, and New York Attorney General’s Office that were submitted almost a year ago,” said U.S. Senator Chuck Schumer. “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 Indian Point, and I urge the NRC to immediately reverse this decision.”

“Westchester residents deserve to have their voices heard on whether or not Holtec is right for our community,” said Westchester County Executive George Latimer. “Indian Point is in our backyard and the decommissioning process is one that will impact our region for generations. We need answers on Holtec’s plans for protecting local jobs and restoring the site environment while also seeing adequate proof of sufficient financial responsibility. I applaud and support the attorney general’s suit and look forward to results that will benefit Westchester residents now and for years to come.”

“The Nuclear Regulatory Commission’s decisions to deny public input to the license transfer process and to allow the use of more than half a billion dollars in ratepayer funds for cleaning up the Indian Point nuclear facility are both outrageous,” said State Senator Pete Harckham. “The NRC is supposed to protect the public interest, not serve to assist private industry dip into the pockets of hardworking New Yorkers. The lawsuit New York Attorney General Letitia James has filed against the NRC is well founded, and I applaud her action taken today.”

“It is intolerable that the NRC would allow Holtec to divert money from the trust fund for spent fuel management,” said Assemblymember Sandra Galef. “New Yorkers will not be Holtec’s piggy bank. Our concerns are not trivial and need to be addressed thoroughly through a public hearing. What is the NRC afraid of? Why are they shirking responsibility? I applaud the attorney general for her leadership on this issue.”

This matter is being handled by Assistant Attorneys General Joshua M. Tallent and Channing Wistar-Jones, and Deputy Bureau Chief Lisa M. Burianek — all of the Environmental Protection Bureau, under the supervision of Bureau Chief Lemuel M. Srolovic; and Deputy Solicitor General Anisha S. Dasgupta and Assistant Solicitor General Caroline A. Olsen — both of the Division for Appeals and Opinions, under the supervision of Solicitor General Barbara Underwood. The Environmental Protection Bureau is a part of the Division for Social Justice, led by Chief Deputy Attorney General Meghan Faux, and is overseen by First Deputy Attorney General Jennifer Levy.

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Image courtesy of Tony.