Seeing Cuomo’s hand, or not, in a state move on Indian Point

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Indian Point. (AP Photo/Seth Wenig)
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ALBANY—Andrew Cuomo has long been on the record as an opponent of the continued operation of the Indian Point nuclear power plant in Buchanan, less than 50 miles from New York City.

But if a state proposal to shutter Indian Point for three months a year is part of larger plot to close the nuclear power plant permanently, as the owner contends, the governor isn’t saying so.

As Capital first reported, the state Department of Environmental Conservation quietly posted a plan on its website this month that would involve closing the plant for up to 100 days in the spring and summer in order to mitigate damage to Hudson River fish populations during breeding season.

Such extended seasonal closures would certainly cut into the plant’s profits—according to Entergy, the plant’s operator, they would cost billions of dollars annually—and if they were put in place over the long term, could mean the end of Indian Point as a going concern. 

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That, coupled with Cuomo’s long-term pledge to close the plant, is the basis for an accusation from Entergy and its allies that this environmental-protection measure isn’t what it seems to be.

“This is not about science,” said Entergy vice president Fred Dacimo during a public hearing on the issue earlier this month. “This is about closing what is a safe, clean, environmentally responsible facility that generates electricity in a cost-effective manner for New Yorkers.”

Indian Point needs state permits to use water from the Hudson River to cool its reactors and then discharge the warm water back into the river. After years of complaints from environmental groups like Riverkeeper, the state concluded that a billion fish a year were being killed through that process, and proposed that Entergy build cooling towers that would cost more than $1 billion as a way to mitigate the problems.

The new outage proposal, similar to one that was shelved by the state a decade ago, attempts to make full use of the state’s limited leverage over plant operations. While it is up to the federal Nuclear Regulatory Commission to determine whether plants are licensed to operate, the state licenses the facilities’ use of river water for operations, and can theoretically put a halt to operations by withholding or limiting permission on the basis of concerns over water quality.

The proposal comes as nuclear facilities across the country feel the financial pressure of cheap natural gas produced by the fracking boom and after Entergy has already decided to close its Vermont Yankee facility for economic reasons.

“I guess he feels in the end this is an excellent scheme,” said Matthew Cordero, a former electric grid operator and a trustee of the Long Island Power Authority. “By reducing the capacity, you damage the nuclear power plant at the heart of its economic function.”

It would be a major power play, from a governor who sets his store by them.

Matt Nelligan, spokesman for the Republican chair of the State Senate energy committee George Maziarz, told Capital, “It may be political. It's hard to imagine anything else since it doesn't make sense from a policy perspective.”

But if it’s a political move by Cuomo, it’s an unusual-looking one. While the governor is proud of his ability to work the levers of power in Albany to achieve the results he desires, he’s also famously deliberate about choosing his battles.

And Indian Point is a battle that, for the past couple of years, he’s largely avoided. If the proposal to mandate season shutdowns starting next year were truly meant to cripple Indian Point, it would represent the boldest assertion of political muscle by Cuomo in the service of that goal at least since his first year as governor, when his aides reportedly informed Entergy that the administration intended to work toward the plant’s closure.

Cuomo joined a suit against the N.R.C. for relicensing Indian Point when he was attorney general, and shortly after becoming governor he asserted that he intended to use the tool available to the state to keep the plant from continuing operation after its licenses expired in 2013 and 2015. But he never followed through in any steps comparable to this one, which would compel a prolonged shutdown.

The D.E.C. proposal, if it in fact came at the direction of the governor, would be a departure from Cuomo’s standard operating procedure in another way, too: There was no discernible attempt by Cuomo or his press people to call attention to the proposal, either through an announcement or a surreptitious leak to a friendly media outlet. If Cuomo had truly decided he’d found a way to outsmart the owners of Indian Point—if the D.E.C. proposal weren’t, in fact, the result of a decision by bureaucrats to save some fish—he would normally be expected to make sure the voting public found out about it.

The issue, a D.E.C. spokeswoman said, is the same one the state has had with Indian Point for years. In 2009, the state called for Indian Point to install cooling towers which recycle river water and dramatically lower the number of fish killed by the plant’s operation. Entergy countered by proposing a much cheaper wedge wire screen system that prevents fish from getting sucked into the water intake system used to cool the nuclear reactors.

The screen system—which, unlike a cooling-tower system, still entails heavy cycling of river water— hasn’t been installed yet.

Phillip Musegaas of Riverkeeper, the influential environmental group whose first prosecuting attorney was Cuomo’s former brother-in-law Robert Kennedy Jr., said, "Entergy has needlessly fought the cooling tower for 11 years, and could have chosen the easier option if it followed the state's suggestion 11 years ago. Instead, it spent millions of dollars a year in legal fees trying to fight for a cheaper option that now appears to have amounted to nothing.”

But Entergy’s resistance to the cooling towers is a standard play in the industry which, like most industries, tends not to volunteer to fund massive capital expenses.

Most of the nuclear facilities currently operating in America don’t have them, and few of the operators of the older plants would opt to build them because of the cost, N.R.C. spokesman Neil Sheehan said.

After a protracted battle with state regulators over water discharge permits, the Oyster Creek nuclear plant in New Jersey agreed to shut down a decade early rather than construct the cooling towers. Oyster Creek’s operators had made the economic calculation that they stood a chance of losing a protracted court battle over the permits.

But in the end, the owner of Oyster Creek retired the facility voluntarily. It would be doubly unusual for a state to succeed in using water permits to shut down a plant outright for not agreeing to build a cooling-tower system.

“We've not seen a situation where the state says we're not satisfied with the way the plant is operating and we're going to shut down,” Sheehan said.

A state official—in the only on-the-record comment so far on this matter since news broke of the D.E.C.’s plan—said emphatically that the shutdown proposal not part of a larger anti-Indian Point scheme.

In an email, D.E.C. spokeswoman Emily DeSantis said, “The two are unrelated. DEC has taken the position that the outages are to protect one billion aquatic organisms in the interim until the issue of wedge wire v. cooling towers is decided. It’s not a strong arm tactic. As we’ve noted previously, the issue of outages is not going to get settled any time soon, which give plenty of lead time to plan for it and make sure adequate capacity exists to serve customers.”

Whatever the motive behind the administration's proposal, it’s unlikely that a state-enforced shutdown will happen anytime soon. Entergy would doubtless appeal any denial of state permits that impaired operations, as the company did when then-governor David Paterson’s administration declined to issue the requisite water-quality certification. Now, as then, the N.R.C. would likely side with Entergy, allowing it to continue operating regardless of the state’s efforts.

There’s also longer-term logistics to consider: The process of taking a nuclear plant offline, particularly one capable of meeting 25 percent of the energy needs of the nation's largest metropolitan area, is extensive and requires a series of steps to avoid rolling blackouts and skyrocketing bills. New transmissions lines would be needed. Additional power sources would have to be brought online, and they produce air pollution, unlike nuclear energy. The process of replacing that level of capacity takes years.

Cuomo has seen the political complexity of shuttering a power plant before.

When Mario Cuomo was governor in the late 1980s, he used the state's licensing powers to help force the Shoreham nuclear plant on Long Island to close before it ever started operating. The elder Cuomo said at the time that stopping Shoreham was a matter of life or death because it was so close to densely populated New York City.

Shoreham needed to have its evacuation routes approved by the state. So Mario Cuomo refused to grant that approval, and used that to force a deal that closed the plant.

But the governor was unwilling to take sole responsibility for closing Shoreham. Even when a deal to close the plant was on table, Cuomo balked because he would have to make the decision alone. Instead, he insisted state Legislature vote on it.

“The only thing I can see is that the reality and the responsibility are sobering,” Paul Gioia, who served as chairman of the state Public Service Commission during much of the debate over Shoreham, told the New York Times in 1989. The governor, he said, “is clearly interested in sharing that responsibility.”

In the end, the Legislature declined to sign off and Cuomo went ahead alone. He successfully brokered the closure of Shoreham, the nation's first nuclear facility to be decommissioned, by making it financially appealing to the plant's operators. Shoreham's operators walked away with $6 billion, which Long Islanders are still paying on today's utility bills, for a plant that never gave them power.

Many of the same warnings Mario Cuomo heard in the 1980s about Shoreham are the same ones his son hears today from supporters of Indian Point: Closing a nuclear plant will result in blackouts, a less reliable electric grid and increased air pollution as fossil fuels are burned to replace the lost emissions-free nuclear power; customers could face higher bills; more than 1,000 jobs will be lost, and tax revenue for schools and towns will dissipate.

Battles between nuclear operators and state regulators are common and typically last for years until a resolution is reached or a court decides the outcome, said David Repka, a former Nuclear Regulatory Commission attorney.

But no other plant has ever been shuttered because it did not have the proper water permits, he said.

“There's nothing common about this,” Repka said. “Indian Point is clearly the focus of political pressure.”

Meanwhile, the state is actively preparing for a future without Indian Point. Hearings have been held on a contingency plan to replace the facility. The administration is pushing for new transmission lines that will help bring additional power to the area to replace some of what will be lost if Indian Point's 2,000 megawatts are taken offline. A damaged power plant in the lower Hudson Valley destined for the scrap heap was recently given state approvals to reopen. The state is also exploring how to increase the use of renewable energy to replace large power generators by placing smaller power sources, like solar, in more homes, businesses and communities.

The governor’s office declined to comment for this article.