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But putting all those considerations aside—it is certainly possible to replace the facility's energy-generation capacity eventually, and the arguments about air pollution versus safety is ultimately a philsophical one about priorities—the most important near-term question may simply be whether the Cuomo administration has the ability to shut Indian Point down.
The Nuclear Regulatory Commission has the sole authority to renew, or not renew, nuclear reactor licenses. And they've historically been inclined to give Indian Point the benefit of the doubt. In August 2009, the commission made the following statement: “The Nuclear Regulatory Commission has issued its final safety evaluation report (SER) for the proposed renewal of the operating licenses for Indian Point Nuclear Generating Unit numbers 2 and 3, and concluded that there are no open items that would preclude license renewal for an additional 20 years of operation.”
It is rare, in any case, for the commission to shutter nuclear power plants.
“N.R.C. typically works very hard with an applicant to renew their license and would probably go through and suggest technical changes that they think may be necessary to make sure the re-licensing is safe and sufficient,” Frayer said.
Entergy doesn’t expect a decision until at least 2013.
The state does have at least one other lever in hand: that state D.E.C. water quality permit, which was first withheld by the David Paterson administration in 2009.
“The big issue is that if they don’t get their water permit in place, they can’t operate,” said Frayer.
Theoretically, Entergy could build what are called cooling towers or cooling ponds, but those come at a huge cost: “It’s so expensive its may actually prohibitive,” Frayer said.
A similar, but not completely analogous, conflict has been playing out in New England. Though the regulatory commission renewed the license for Entergy’s Vermont Yankee Nuclear Power Station, which powers about a third of the state’s energy needs, Vermont lawmakers passed a bill requiring state approval for Vermont Yankee to continue operating. And that state approval was not forthcoming.
The case went to court, and a federal judge sided with Entergy, ruling that the state had overstepped its bounds, and that the Vermont legislature had overstepped its bounds by focusing in its public hearings on the health affects of radiation, something he said fell squarely within the regulatory bounds of the federal government.
If New York is to follow Vermont’s example, Governor Cuomo “had better be very careful about what he says,” advised Pat Parenteau, a Vermont Law School professor.
Parentau said if New York State focuses not on public health issues, but on its interest in protecting its water supply, its move to close Indian Point might pass muster in court.
“The state has clear authority under the Clean Water Act and the Supreme Court has upheld that a couple of times,” he said.
But even then, it will take a lot of time, and litigation, to get to the point where the plant is actually affected. The nuclear power facility can continue operating even after its licenses expire in 2013 and 2015, if the process is tied up in litigation. So while New York State is lining up its replacement sources of energy, Entergy will be able to continue squeezing whatever money it can from a power plant in which it has invested billions. And who knows where Andrew Cuomo will be by then?
"They’ll fight their relicensing case,” said Musegaas, of Riverkeeper. “They’ll fight the state permit case. It’s always cheaper for a corporation like Entergy to pay lawyers to litigate these things than to upgrade these facilities."
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