Suit Challenges NRC’s Denial of Public Hearing on State’s Decommissioning Concerns, and Approval to Use More Than Half a Billion Dollars for Non-Decommissioning Purposes
New York Attorney General Letitia James 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's 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 7, 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.
