Owner Of New York City’s Defunct Nuclear Plant Sues The State

The company that owns the shuttered nuclear plant that once provided the bulk of New York City’s zero-carbon electricity is suing the state over a law passed last year specifically to block the Indian Point power station from carrying out routine releases of treated wastewater into the Hudson River, HuffPost has learned.

Virtually every nuclear power plant all over the world releases tiny volumes of a radioactive isotope known as tritium from its cooling water into surrounding waterways. Unlike the long-lasting and dangerous radioisotopes that form during the atom-splitting process, tritium ― an isotope of hydrogen ― laces into water, making it almost impossible to extract. Luckily, tritium, which has never been linked to cancer in humans, is too weak to penetrate skin and decays quickly in 12-year half lives, so power plants spew small amounts into the environment at rates indistinguishable from what naturally occurs from cosmic rays from space or what ends up leaked into waterways via dump neon signage.

When a nuclear reactor is generating electricity, these releases are a matter of routine operation. Once those plants shut down and the utility that runs them sells off the facility to a decommissioning company, the onus falls on firms, such as Florida-based Holtec International, to obtain new permits to resume releases of tritium. That means going through a regulatory process that includes public hearings, giving Americans who visualize all radioactive waste as the scientifically absurd caricatures of green glowing goop depicted on shows like “The Simpsons” fresh cause for panic.

Last August, New York Gov. Kathy Hochul (D) signed legislation “restricting discharges of any radiological substance into the Hudson River in connection with the decommissioning of a nuclear power plant.”

Holtec now says that statute violates the federal law that gave the government in Washington complete control over how radioactive materials are regulated.

In litigation filed with the Southern District Court of New York on Thursday, Holtec said the Empire State’s law violates the federal statute giving the U.S. Nuclear Regulatory Commission’s “sole authority over radiological discharges from nuclear power plants whether online or decommissioning.”

The failure of New York State to respect Federal Law, and follow the facts and science of the issue, left us no other means for remedy,” the company said in a statement shared first with HuffPost. “The passage of the bill has already delayed the planned completion of the decommissioning of Indian Point an additional 8 years, which hurts the local community’s desire to see the project completed and the property returned as an asset for economic development in the region. We look forward to the legal process moving along on this important decision.”

In a state press release announcing the passage of the legislation last year, Hochul and bipartisan New York lawmakers who praised the bill referred four times to the “economic” benefits of banning Indian Point from discharging wastewater. But Holtec accused the state of using the “guise of economic” issues to “hide” the real intent of regulating radiological materials, according to legal filings HuffPost reviewed.

“They’re welcome to sue,” said state Sen. Pete Harckham (D), who authored the Senate version of the legislation.

He pointed to a 1983 Supreme Court decision that ruled in favor of California regulators’ right to restrict nuclear power plants based on the economic toll that the facilities could take on the surrounding area. While he said locals only learned about the tritium discharges after Indian Point shut down, “once they found out there was enormous outcry.”

Now, he said, communities along the Hudson are being “damaged with the knowledge that tritium is being released into the river.” Neither Hochul’s office nor the New York State Assembly lawmaker who introduced the statute ― Assembly member Dana Levenberg (D) ― responded to requests for comment Wednesday.

The lawsuit is the first major challenge in years to the state’s efforts to single out Indian Point while attempting to revive the nuclear power industry that still supplies most of New York’s zero-carbon electricity. 

Indian Point Energy Center is seen on the Hudson River in Buchanan, New York, on April 26, 2021.
Indian Point Energy Center is seen on the Hudson River in Buchanan, New York, on April 26, 2021. via Associated Press

The Biden administration has directed billions toward maintaining the U.S. nuclear fleet, which has lost more than a dozen reactors in the past decade.

In January, the administration offered Pacific Gas & Electric almost $1.1 billion to relicense Diablo Canyon, California’s last nuclear power plant and the source of as much as 10% of the state’s electricity. Just last month, the Department of Energy gave Holtec an unprecedented $1.5 billion loan to reopen the Palisades nuclear plant in Michigan, the most recent U.S. atomic energy station to close down amid growing competition with cheap natural gas. Billions more are going to researching and testing novel kinds of reactors and subsidizing the electricity they ultimately generate years from now.

If its efforts to restart Palisades’ single reactor pan out, Holtec even plans to ultimately build two of its own small modular reactors to expand the Michigan plant.

With billion-dollar costs and decade-long construction timelines, nuclear energy benefits from the kind of largesse the federal government can uniquely provide. Conveniently for the country’s most tightly regulated energy sector, the federal government agreed under the Atomic Energy Act to take full responsibility for managing the radioactive waste piling up at the roughly 93 remaining nuclear power plants. 

Compared to the amount of electricity fission produces, managing long-term nuclear waste is a relatively minor problem. But the federal government is currently hamstrung. Federal law stipulates that Nevada’s Yucca Mountain serve as the first permanent site for nuclear waste. Congress hasn’t amended the law since the Obama administration mothballed the project more than a decade ago, preventing federal regulators from considering alternative locations for a nuclear waste dump. The Biden administration, meanwhile, is directing more funding toward research into ways to recycle spent fuel. 

New York isn’t the only state to try to intervene in nuclear waste issues. In Massachusetts, where Holtec owns and is decommissioning the defunct Pilgrim nuclear power plant, lawmakers passed legislation in 2022 to block the company from releasing tritiated water ― but focused the statute on non-radioactive materials to avoid violating the federal law. 

In New Mexico, where Holtec proposed building a storage facility for highly radioactive spent fuel canisters, the state passed a law banning permitting of any nuclear waste sites until the federal government sorts out the Yucca Mountain situation. Federal regulators approved the project last year. While Holtec’s lobbyists have argued this law, too, violates the Atomic Energy Act, lawmakers in desert states where the U.S. government tested nuclear weapons have pointed to the Supreme Court’s 2019 decision holding Virginia’s ban on uranium mining. 

Holtec’s other options for disposing of the tritiated water filling the storage tanks at Indian Point or Pilgrim include trucking the liquid out of state or evaporating the wastewater on-site. Federal regulators said those options would cost more ― further prolonging the decommissioning work ― and carried greater risks than diluting the cooling water and pumping it into the Hudson River or Cape Cod Bay.

Tritium became an international concern last year when the state-owned utility that owns the destroyed Fukushima nuclear plant started releasing wastewater used to cool the melted-down reactor after the 2011 accident into the Pacific Ocean. 

Despite spewing tritium in far larger volumes from their own active nuclear plants, the Chinese, Russian and South Korean governments protested Japan’s decision to start pumping the wastewater into the ocean, in what was widely seen as a geopolitical gambit.

While nearly a century of research has failed to link tritium exposure to cancer, experiments on mice forced to ingest enormous daily doses throughout their lifetimes tended to develop cancer and die younger than their counterparts who hadn’t, according to a 2021 paper in the Journal of Radiation Research. But large-scale epidemiological studies are challenging since tritium is difficult to detect in the environment.

To play it safe, regulators across the planet have typically set limits for releasing tritium into waterways at levels far below what naturally occurs from cosmic rays, sewage treatment plants and leaked chemicals from scrapped self-illuminating exit signs. 

A turbine generator used to produce power is seen at Indian Point Energy Center in Buchanan, New York, on April 26, 2021.
A turbine generator used to produce power is seen at Indian Point Energy Center in Buchanan, New York, on April 26, 2021. via Associated Press

At a decommissioning hearing last year in the Hudson Valley suburb where Indian Point’s employees once lived, one anti-nuclear protester ― a Manhattan lawyer who left the city after the Sept. 11 terror attacks ― blamed errant radiation from the power plant for the cancer she developed a few years ago.

Another demonstrator ― a lifelong resident and retired art teacher who said she grew up protesting against Indian Point ― worried that if Holtec began releasing tritium into the Hudson, she was at risk since she spent the whole summer wading into the river at a boating dock. Her life seemed like a testament to the company’s claims that there’s no reason to fear long-term exposure. Asked whether she’d seen health impacts, given decades of exposure to tritium released throughout the operating lives of the plant’s two reactors, she seemed surprised. She said she had not experienced the serious diseases groups like the one that organized the rally she attended insisted were linked to living near nuclear plants.

Both women were attending a rally organized by Food and Water Watch, an environmental group that spent millions fighting to shut down Indian Point back in 2014. HuffPost is declining to name the women, who were not public figures, because the interviews were conducted in person a year ago, but published samplings of the conversations here for the first time to illustrate the range of views coming from the local opponents who claimed the law banning Indian Point’s tritium releases as a victory.

Some questions remain about how tritium might accumulate at the mouth of pipes spewing tritiated wastewater into waterways for years on end.

“‘The solution to pollution is dilution’ doesn’t work if it accumulates at the end of a pipe in seafloor sediment, for example, or if they bioaccumulate in fish that are caught and consumed by people,” Ken Buesseler, a senior scientist at the Woods Hole Oceanographic Institution in Massachusetts, told HuffPost last year.

“Another thing we should be considering is whether this release from a decommissioned reactor should be regulated the same way we regulate releases from power plants that [are] in operation,” he added. “At least then they’re creating a benefit. They’re creating electricity.”

From Taiwan to Germany to California, fossil fuels have replaced the zero-carbon generation from atomic power plants that close prematurely. 

New York is no different. The nation’s largest city went from a roughly 75% fossil-fueled power grid prior to Indian Point’s shutdown to more than 95% overnight. Without Indian Point’s supply of steady, relatively cheap electricity in the face of surging demand for air conditioning, outages across the five boroughs worsened during the past two summers. 

Mounting evidence suggests that radiation is less deadly than previously believed. Studies on cattle left alive in the exclusion zone around the Fukushima plant in Japan have not shown the spikes in the rate of cancer that existing safety models indicated would happen. Some amounts of radiation exposure may even offer health benefits. 

By contrast, the tiny particles of air pollution spewing from automobile tailpipes and fuel-burning power plants are now linked to disease ranging from cancer and heart disease to erectile dysfunction and infertility. And that’s putting aside the destabilizing effect fossil fuel emissions are having on the planet’s weather patterns. 

“We’ve been studying radioactivity for more than 100 years, and we have a pretty darn good idea of what the effects of radiation are and what doses are needed to cause those impacts,” said Kathryn Higley, an Oregon State University professor who researches radiation and health.

“The dose makes the poison,” she added. “It’s radioactivity, it’s how much of it is being released and where it’s going.”