Indian Point nuclear power plant (photo: governor's office)

The 2020 session of the New York State Legislature has been another one for the record books, passing landmark legislation to address climate change, pandemic relief, and police reform. It’s a remarkable set of achievements, but the work of this legislative session isn’t complete yet, because there’s another pressing, high-stakes measure that can’t wait until next year: a pending bill to create a state oversight board on nuclear power plant decommissioning. 

The decommissioning process entails breaking apart and shipping radioactive nuclear plant components, addressing radioactive site contamination, and managing, storing, and/or shipping highly radioactive spent fuel inventories. The spent fuel pools of Westchester’s Indian Point nuclear plant, 25 miles from Manhattan, contain about three times the radioactivity of the entire Fukushima complex in Japan, some of which is leaking into groundwater and the Hudson.

Decommissioning decisions have profound environmental, economic, and public health consequences, and they need appropriate regulation and oversight.

Decommissioning is getting underway in New York as Indian Point shuts down. One of its reactors powered down permanently in April, the other will close next April. Other plants in upstate New York will follow suit in the years ahead.

The pending bill in the Legislature (Senate 8154/Assembly 10236), would create the first-ever Nuclear Generating Station Decommissioning Oversight Board, to be composed of representatives from relevant state agencies, diverse stakeholders, and concerned citizens. It would oversee and monitor decommissioning decisions, and provide a channel for public input into how private companies conduct decommissioning work. If the bill is enacted, the Board would be the first of its kind in the United States, and could serve as a model for other states. 

Despite the clear, vital interests state and local governments have in getting decommissioning right to protect New York’s health, safety, environment, and economy, until now the question of state authority over and input into decommissioning decisions has been murky and attenuated. The federal Nuclear Regulatory Commission (NRC) has jurisdiction over nuclear plant safety issues, but it is so close to the plant owners it is supposed to regulate (who not incidentally fund 90% of the agency’s budget) it calls them its “clients,” and is known as a prime example of “regulatory capture.” Its oversight of decommissioning has been extremely lax, riddled with waivers, exemptions, and rollbacks, essentially doing whatever the licensees want. 

And the NRC hasn’t exactly welcomed input from state or local governments or other stakeholders that want better oversight. In fact, the NRC cut Massachusetts out of the approval process to transfer the licenses of the shuttered Pilgrim nuclear plant to a subsidiary of Holtec for decommissioning. Holtec’s business model is to leverage public money rather than bring any of its own to the table, and it has a big trustworthiness problem, including a long track record of bribery and fraud. Yet the NRC refused even to hold hearings on the Pilgrim license transfer where the state could air its concerns about Holtec.  

So Massachusetts Attorney General Maura Healy sued the NRC, joined by 12 states including New York. In her filings she expressed skepticism about Holtec’s plan to “decommission Pilgrim on an expedited schedule never before achieved,” despite having never owned a nuclear plant nor managed a decommissioning start to finish. “Holtec’s attempt to account for contingencies and uncertainty risk is woefully deficient,” she said. She also warned Holtec might deplete the decommissioning trust fund, leaving “taxpayers to bear the financial burden and responsibility for finishing the work.” Now Holtec is applying for license approval to acquire Indian Point. The NRC is certain to wave the application through despite widespread opposition to Holtec in New York. 

The problem is bigger than Holtec alone, even if it’s the worst example of what’s wrong with the emerging decommissioning industry. In general, the industry is composed of private, for-profit, limited liability corporations with little or no capitalization and spotty experience and track records, positioning themselves as decommissioning experts and bidding to acquire the licenses and the ratepayer-financed decommissioning trust funds of shuttered nuclear plants. Their incentive is to decommission as quickly and cheaply as possible, laying claim to leftover funds and federal moneys for profit. There’s a significant danger they could use up the funds, declare bankruptcy without damaging their parent companies, and walk away, leaving the state liable for remaining cleanup costs.

As things stand now, decisions about how the decommissioning trust funds are spent, or how nuclear decommissioning will be conducted -- for example whether  highly radioactive materials from Indian Point will be shipped down the Hudson by barge -- are left largely up to Holtec and other private decommissioning companies, rubber stamped by the NRC. There is little or no accountability to New York State or surrounding communities.

The proposed Decommissioning Oversight Board would change that. It would bring together the state agencies that have some jurisdiction over decommissioning decisions, so they can coordinate and exert authority over the process more effectively, with input from key community members. It would make the process more accountable to state government and the public, and provide an effective counterweight to the laissez-faire regulatory attitude of the NRC. 

The bill that would establish the Board has many co-sponsors in the New York State Legislature, and strong support, but hasn’t been scheduled for a vote yet due to the unusually hectic nature of this legislative session. But it’s urgent that the Legislature pass the Decommissioning Oversight Board legislation this session. By the 2021 session most of the important decisions on decommissioning Indian Point will have already been made, so it can’t wait until next year. 

Nuclear plant decommissioning may not be as salient as the coronavirus pandemic or the fight for racial justice, but it is also extremely urgent and impactful in terms of safety, health, and justice for New Yorkers.

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Manna Jo Greene is Environmental Action Director of the NGO Hudson River Sloop Clearwater.