Beyond Nuclear - Decommissioning

Beyond Nuclear

7304 Carroll Avenue, #182

Takoma Park, MD 20912
Tel: 301.270.2209
Email: info@beyondnuclear.org
Web: www.beyondnuclear.org

To: The Honorable Letitia James, New York Attorney General , Office of the Attorney General , The Capitol,  Albany, NY 12224-0341

Letitia.james@ag.ny.gov

Dear Attorney General James,

We are writing to thank you for your office's petition, announced January 22, 2021, for review in federal court of the U.S. Nuclear Regulatory Commission's (NRC) recent actions concerning the Indian Point (IP) nuclear power plant, including approval of license transfer from Entergy to Holtec, denial of New York’s petition to intervene in the license transfer, and granting Holtec exemptions from certain federal regulations on the permissible uses of the IP decommissioning trust fund.

In effect, the NRC summarily approved license transfer to Holtec while refusing to hold hearings or entertain the State’s legitimate concerns about the company, which we strongly believe is unsuitable and unqualified to be Indian Point’s licensee. The NRC also rubber-stamped Holtec’s plan to siphon off about one-third of the decommissioning trust fund ($630 million) for non-decommissioning activities (namely, highly radioactive irradiated nuclear fuel management, funding for which the licensee will recover anyway by suing the U.S. Department of Energy), which is a matter of fiscal concern to the State. As you point out, these actions by the NRC violate the Atomic Energy Act, the Administrative Procedure Act, and NRC’s own regulations and policies, and should be reversed.

Your petition was filed ten days after we wrote you (see below) about these issues, objecting to IP license transfer to Holtec and proposing among other things that the State seek adjudication of its concerns in federal court. While we don’t claim to have given you the idea, we are deeply encouraged by your timely action, which demonstrates robust commitment to protecting the state’s vital interests and its residents. Among those for whom you are standing up are many Beyond Nuclear members and supporters living in the communities around IP and across the state.

Your work on these issues has also empowered our colleagues in Michigan, where Holtec is seeking to acquire the licenses of Palisades and Big Rock Point, two nuclear power plants on the shore of Lake Michigan. Your February 2020 intervention in the NRC Atomic Safety and Licensing Board license transfer proceeding and follow-on actions, your call for public hearings, and now your federal court appeal, serve as an example Michigan and other states can follow. Michiganders are asking Attorney General Nessel to do as you have done, and urging other Michigan officials to likewise do all they can to protect the state’s interests and residents by exercising legitimate State authority over license transfer and decommissioning decisions.

Thank you, again, for your actions on the IP license transfer, and for the example you have set for other states. Best of luck with the federal court appeal. Please contact us if we can be of any assistance.

Sincerely,

Robert Alpern, Esq.
140 Eighth Avenue
Brooklyn, N.Y. 11215

Kevin Kamps
Radioactive Waste Specialist
Beyond Nuclear
7304 Carroll Avenue, #182 Takoma Park, Maryland 20912
Cell phone: (240) 462-3216
Email: kevin@beyondnuclear.org

cc:

Governor Andrew Cuomo
U.S. Senator Chuck Schumer
U.S. Senator Kirsten Gillibrand
U.S. Representative Mondaire Jones
Lieutenant Governor Kathleen Hocul
Meghan Faux, Chief Deputy Attorney General
Jennifer Levy, First Deputy Attorney General
Joshua Tallent, Assistant Attorney General, Environmental Protection Bureau
Channing Wistar-Jones, Assistant Attorney General, Environmental Protection Bureau
Lemuel Srolovic, Environmental Protection Bureau Chief, Office of the Attorney General
Lisa Burianek, Deputy Bureau Chief, Environmental Protection Bureau, Office of the Attorney General
Jeremy Magliaro, Environmental Policy Analyst, Office of the Attorney General

Barbara Underwood, Solicitor General

Anisha Dasgupta, Deputy Solicitor General, Division of Appeals and Opinions

Caroline Olsen, Assistant Solicitor General, Division of Appeals and Opinions
Thomas DiNapoli, New York State Comptroller
Alaina Gilligo, New York State First Deputy Comptroller
Elliot Auerbach, New York State Deputy Comptroller
John Stouffer, Office of Budget and Policy, Office of the New York State Comptroller
John Rhodes, Chair, New York State Department of Public Service
Tom Congdon, Executive Deputy and Deputy Chair, New York State Department of Public Service
James Alesi, Commissioner, New York State Department of Public Service
Diane Burman, Commissioner, New York State Department of Public Service
Tracey Edwards, Commissioner, New York State Department of Public Service
John Howard, Commissioner, New York State Department of Public Service
Michelle Phillips, Secretary to the Commission, Commissioner, New York State Department of Public Service
Carrie Gallagher, Deputy Secretary for Energy and Environment, New York State Department of Public Service
Jessica Waldorf, Assistant Secretary for Energy, New York State Department of Public Service
John Sipos, Attorney, New York State Department of Public Service
Basil Seggos, Commissioner, New York State Department of Environmental Conservation
New York State Senator Pete Harckham
New York State Assemblymember Sandra Galef
Westchester County Executive George Latimer
Linda Puglisi, Supervisor of the Town of Cortlandt, New York
Theresa Knickerbocker, Mayor, Village of Buchanan, New York
Joseph E. Hochreiter, Superintendent of Schools, Office of the Superintendent, Montrose, New York

---------- Forwarded message ---------
From: Kevin Kamps <kevin@beyondnuclear.org>
Date: Tue, Jan 12, 2021 at 3:01 PM
Subject: Important information on the proposed sale of Indian Point nuclear power plant from Entergy to Holtec, and a request for dialogue
To: <Letitia.james@ag.ny.gov>

Beyond Nuclear

7304 Carroll Avenue, #182
Takoma Park, MD 20912
Tel: 301.270.2209
Email: info@beyondnuclear.org
Web: www.beyondnuclear.org

To: New York Attorney General Letitia James
Office of the Attorney General
The Capitol
Albany, NY 12224-0341
Letitia.james@ag.ny.gov

Dear Attorney General James,

As you know, Entergy proposes to sell the Indian Point nuclear power plant to a subsidiary of Holtec International to decommission the plant, as well as take over the management of the highly radioactive irradiated nuclear fuel. The sale was approved by the U.S. Nuclear Regulatory Commission (NRC). This was done over New York's objections, without addressing the concerns about Holtec that New York has raised, and without holding hearings on the matter that New York State, and the New York U.S. congressional delegation, have requested. Governor Cuomo in a statement said this was unacceptable, and that the State is considering all options. Those options can and should include the following:

Working with the Congressional delegation to request a federal hearing on license transfer -- It is urgent to establish more active Congressional oversight of NRC decisions on license transfer, decommissioning, and highly radioactive waste management, in New York and other states.

Demanding Indian Point license transfer be held in abeyance until the Biden administration appoints new NRC leadership -- NRC Chairman Kristine Svinicki announced her resignation on January 4, 2021, to take effect on January 20th, which means the Biden administration will appoint a new commissioner to replace her, as well as a new Chairman to lead the NRC. This will almost certainly shift the majority among the commissioners, and the direction of the NRC. That being the case, the new leadership should have a chance to respond to the State's call for hearings and to adjudicate its concerns before license transfer is treated as a fait accompli.

Demanding a hearing on Indian Point license transfer to Holtec at the NRC's Atomic Safety and Licensing Board (ASLB) -- The overwhelming evidence is that NRC public comment hearings don't change prior NRC decisions; they just allow the NRC to say it has listened to stakeholders, then to go ahead and do what it intended to do in the first place. But an ASLB hearing would be important, whether or not it would change the minds of NRC commissioners or staff, because it is a necessary prerequisite for challenging Indian Point license transfer in federal court.

Challenging Indian Point license transfer in federal court -- This is a necessary step, unless and until NRC sees fit to address substantively the concerns or contentions the State and citizens' groups have raised about Holtec taking over Indian Point.

Asserting Public Service Commission (PSC) jurisdiction -- There is a strong legal and ethical basis for the State exercising authority over license transfer approval and consequential decommissioning decisions that are not federally preempted. The PSC, and other relevant state agencies, have both the power and the obligation to weigh in on them. Given Holtec's egregious record, it is not only possible, but necessary, for the PSC to assert its jurisdiction over license transfer approval. It should refuse to approve Holtec as the licensee.

Transferring Indian Point's licenses to Holtec poses significant risks to New York, including threats to public health and safety, environmental impacts on the surrounding area and the Hudson, and negative impacts on the state's economy and fiscal health. Holtec and its partner company, SNC-Lavalin of Montreal, Quebec, have been caught multiple times in bribery, fraud, and malfeasance, and Holtec is currently under criminal investigation in New Jersey. Holtec lacks the necessary qualifications to hold Indian Point's licenses in terms of financial assurance, technical expertise, and decommissioning experience. Its track record on decommissioning and highly radioactive spent fuel handling includes:

Leveraging public monies for its own profit without bringing any of its own to decommissioning work;
Using a subsidiary structure which would enable it, if it chooses, to leave decommissioning work at Indian Point half done, declare bankruptcy, and walk away without liability, leaving the State and municipalities to bear the costs and risks;
Using its own flawed and gouged casks for dry storage of highly radioactive spent fuel — casks whose design Holtec changed in safety-significant ways without even seeking the required NRC permission;
A near-miss accident in transferring irradiated nuclear fuel to its dry casks, which could have resulted in a severe radiological release, at the San Onofre Nuclear Generating Station in California;
Indicating in an improperly filed Post Shutdown Decommissioning Activities Report (PSDAR) that it plans to do nothing to remediate known radioactive contamination of groundwater and the Hudson at Indian Point, and would remediate contaminated soil only superficially; Holtec's PSDAR also envisioned shipping highly radioactive spent fuel down the Hudson by barge, including past Manhattan;
Cutting costs and corners, such as excluding trained union workers, and hiring unskilled workers, for such safety-critical tasks as pipe fitting, in order to save money.

A comprehensive backgrounder with source links prepared by Hudson River Sloop Clearwater, Inc., attached, documents Holtec's record. Simply put, there's ample reason to worry Holtec could do a superficial job of decommissioning, exhaust Indian Point's decommissioning trust fund and other public monies, walk away with no liability, and leave the State and the communities downwind and downstream to bear the risks and costs of a radioactively contaminated site over the long term. It's happened to other reactor communities before.

The track record of Holtec and its partner company SNC-Lavalin includes repeated bribery and fraud convictions, and Holtec getting barred by the Tennessee Valley Authority, and SNC-Lavalin by the World Bank, both unprecedented actions. Holtec is currently under ongoing criminal investigation for allegedly lying, under oath, to officials in New Jersey, on a $260 million state tax break application form.

Holtec has denigrated and ignored input from citizen advisory panels and sued Lacey Township, New Jersey (the site of the Oyster Creek Nuclear Generating Station) to assert that the company need not comply with town regulations such as building permits.

Conflicts of interest and a high potential for self-dealing regarding its side businesses heighten the risk that Holtec will make decisions prioritizing its profits over public health and safety. Holtec’s sidelines include a “consolidated interim storage facility" for irradiated nuclear fuel it is trying to license in New Mexico, which would entail risks in shipping "spent" fuel, which is intensely radioactive, across the country, and building small modular reactors (SMRs), which could be fueled with fissile materials from reprocessed spent fuel.

While it was still negotiating to acquire the license of the Oyster Creek plant, Holtec told journalists it saw no market for SMRs in the U.S., and that they were only intended for overseas markets like Ukraine. Now that it owns Oyster Creek, Holtec has reversed itself and announced it plans to install SMRs at the Jersey Shore plant site. This is cause for concern that Holtec has the same ulterior motive and agenda for Indian Point, which sits atop major transmission lines to New York City. Scientists warn that SMRs are not, as Holtec claims, "walk-away safe." They would generate yet more radioactive waste, threats, and negative impacts on New Yorkers' health and safety.

New York needs a competent, trustworthy Indian Point licensee which is qualified to conduct safe decommissioning. New Yorkers need and deserve a licensee which will not raid and abuse the decommissioning trust fund, which will take State and local authority and public concerns seriously, which will make decisions about radioactive waste and site remediation in order to protect public safety as the top priority, as opposed to to maximizing its own profits, and which will neither walk away without liability leaving the site unremediated, nor threaten to re-nuclearize Indian Point after the State rightly decided to close and decommission the plant.

Holtec clearly is not that licensee. The risks it would pose to New York, if it takes over Indian Point, are unacceptable. They're also preventable. While the Nuclear Regulatory Commission has sole jurisdiction over radiological safety issues, states are far from powerless. They can and should assert their authority over numerous other aspects of the license transfer and decommissioning decisions.

Also attached are some briefing materials from my organization Beyond Nuclear explaining the risks that the current decommissioning business model -- and Holtec in particular -- pose, and what the State can do to protect New Yorkers from them. It's a complex subject, but one that's important to understand in detail to protect the State's vital interests. Beyond Nuclear is experienced in this area, and we're in close touch with citizens' groups in New York working toward the same goal of protecting New York's residents, environment and economy. We'd welcome a dialogue with you on it.

Thank you for considering our concerns. We will follow up with your office in the near future. Meanwhile please see the attached, and please contact Kevin Kamps with any questions. His full contact information is immediately below.

Sincerely,

Robert Alpern, Esq.

140 Eighth Avenue

Brooklyn, N.Y. 11215

Kevin Kamps

Radioactive Waste Specialist

Beyond Nuclear

7304 Carroll Avenue, #182
Takoma Park, Maryland 20912

Cell phone: (240) 462-3216

Email: kevin@beyondnuclear.org

LINKS TO THE THREE DOCUMENTS ATTACHED TO THE EMAIL SENT TO THE NEW YORK ATTORNEY GENERAL:

(1.) BACKGROUND SUPPLEMENT TO COMMENTS SUBMITTED BY HUDSON RIVER SLOOP CLEARWATER ON INDIAN POINT LICENSE TRANSFER APPLICATION FROM ENTERGY TO HOLTEC

(2.) Beyond Nuclear fact sheet "NUCLEAR PLANT DECOMMISSIONING: A New Crisis and New Opportunity for States"

(3.) Beyond Nuclear backgrounder "DECOMMISSIONING TRUST FUNDS: What States Can Do to Stop Waste, Fraud, and Abuse, and Protect Their Citizens"