A lawsuit filed by Entergy Nuclear Operations against New York State secretary of state Cesar Perales on 14 January asserts that the New York State Department of State (NYSDOS) objection, issued on 6 November, is not valid as it is based on nuclear safety concerns which are beyond the state's regulatory remit.
The USA's federal Coastal Zone Management Act allows a state agency to object to the granting of a nuclear operating licence if the facility is inconsistent with the state's coastal management program. Such an objection, unless overturned by a court or the US Secretary of Commerce, prohibits the US Nuclear Regulatory Commission (NRC) from renewing the plant's licence.
The NYSDOS's objection asserts that Indian Point's withdrawal of cooling water from the Hudson River is harmful to aquatic life, including endangered fish species. However, it also questions the ability of the plant to withstand earthquakes and the possible radiological effects from a severe accident at the plant on drinking water, real estate, infrastructure and the area's economy.
Entergy's legal challenge says that although the NYSDOS's objection purports to rely on environmental effects, it relies heavily on issues related to nuclear safety, an area in which the NRC has exclusive federal jurisdiction.
"While states have the right to participate in the federal regulatory stakeholder process relative to nuclear power plant operations, well-established federal law - including a 2013 ruling related to Entergy's Vermont Yankee facility - clearly precludes any state from using presumed nuclear safety issues as a basis for decision making in a state regulatory review, as NYSDOS has done," Patricia Kakridas of Entergy Corporation Nuclear Communications told World Nuclear News.
Kakridas said that Indian Point is a "safely operated facility", regulated in accordance with strict licensing and operational guidelines and overseen by the NRC. "Indian Point currently operates in a manner that is fully protective of the Hudson River and in compliance with state and federal law. Its continued operation is consistent with the NYS Coastal Management Program. Entergy has submitted thousands of pages of information to NYSDOS demonstrating that the facility's continued operation is consistent with the NYS coastal management program. $75 million has been spent over the last 30-plus years on studies of the Hudson River's ecosystem, which demonstrate Indian Point has no harmful impact on adult fish populations in the river," she said.
"The coastal management objection is another example of the state's attempt to encroach on the federal government's nuclear safety management of Indian Point," Kakridas added. She also noted that the New York State Department of Public Service recently launched an investigation into the operations and safety protocols of the facility. "Entergy has written a letter to the New York State Public Service Commission objecting to that probe in part because it pre-empts federal regulation," she said.
Indian Point 2 and 3 are pressurized water reactors that have been in operation since the mid-1970s. An earlier unit, Indian Point 1, operated at the site from 1962 but was shut down in 1974. Entergy applied to the NRC for a 20-year renewal for the licences of both Indian Point units in April 2007, a process which typically takes up to about 30 months to complete if a hearing is granted. In Indian Point's case, however, a large number of issues have been raised by various parties during the adjudicatory process and the hearing has taken longer than expected.
Indian Point 2's 40-year operating licence was due to expire in September 2013 and unit 3's in December 2015, but the plants are allowed to continue to operate under their existing licences until the NRC's review of the licence request is completed.