Campaigning About A-Plants, but Without Actual
By MATTHEW L.
ASHINGTON, Aug. 16 — Both
candidates for the Democratic gubernatorial nomination in New
York are trolling for votes by saying that they want the
Indian Point nuclear reactors closed. The Republican
incumbent, in a shift, refuses to rule out the idea.
But there is a problem. The 48-year-old federal law under
which nuclear power is regulated provides no role for
governors in nuclear safety. States, the Supreme Court has
ruled, can make decisions about whether, and where, a reactor
or other type of power plant can be built, but not about
reactor safety. The Nuclear Regulatory Commission has sole
"The decisions from the courts have been very clear, that
the Nuclear Regulatory Commission has the authority to
regulate the plants in terms of their safety of operations,"
said the commission's chairman, Richard A. Meserve, in an
interview. "That is not an authority that is exercised by the
states. The states do not have any power to order a shutdown
of a plant for safety reasons."
For a time, there was an exception for one plant, Indian
Point 3. The reason was that New York State owned it, along
with the James A. FitzPatrick reactor near Scriba, N.Y.
But the state sold them to Entergy two years ago, for $967 million.
Now, according to experts, the state has little leverage.
"You don't regulate nuclear safety if you're a state," said
Jay E. Silberg, a lawyer at Shaw Pittman, which does extensive
work for reactor operators. The firm represented the New York
Power Authority in the sale of Indian Point 3, and also does
work for Entergy.
Still, since Sept. 11, anxiety has grown in Westchester
over the Indian Point nuclear reactors' vulnerability to
terrorist attack, and with the suburbs usually a critical
battleground in the general election, all of the candidates
have sought to address concerns about the plants' safety. How
much of their rhetoric is meaningless posturing?
Andrew M. Cuomo in particular has sought to make it an
issue. Mr. Cuomo lives in Westchester, and his brother-in-law
is Robert F. Kennedy Jr., whose environmental organization,
Riverkeeper, has recently made closing Indian Point a
Riverkeeper has been broadcasting radio ads critical of the
plant and of George E. Pataki, the two-term governor who is
seeking re-election in November. Perhaps in response, Mr.
Pataki has hired a former director of the Federal Emergency
Management Agency to review the emergency plans, promising a
report by December.
The two Democratic gubernatorial campaigns concede that a
governor alone cannot shut the plant, but they argue that a
governor could exert enough pressure through public calls and
legal maneuvers to make it all but impossible for the Nuclear
Regulatory Commission to ignore their wishes.
Both camps say that had Mr. Pataki not signed off on
federally required evacuation plans for the plants in January,
it would have set in motion a process that could have led to
the closing of the plants.
Steven Greenberg, a spokesman for H. Carl McCall, the state
comptroller who is Mr. Cuomo's principal opponent, said Mr.
McCall would use public pressure to "begin the decommissioning
Peter Ragone, a spokesman for Mr. Cuomo, said that Governor
Pataki had failed to act when he had the chance. "The governor
had an opportunity to show leadership on the issue and decline
to certify the emergency plans surrounding Indian Point," Mr.
Ragone said. "He could have lobbied the relevant federal
agencies — FEMA and N.R.C. — to shut down the plant unless and
until it could be made safe."
But this is not clear to the N.R.C. itself. Mr. Meserve,
asked if a state could force a plant to shut by boycotting the
emergency planning, pointed to the case of the Seabrook plant
in the New Hampshire town of the same name. The state of
Massachusetts, with several towns inside the 10-mile emergency
planning zone, refused to approve emergency plans. The plant
got its license anyway.
Mr. Meserve, who was not then on the five-member
commission, said the license was granted "in recognition of
the reality that if adverse circumstances were to arise, it
would be irresponsible of the state not to have an emergency
plan," and that while it might boycott drills, it would not
boycott response to a radiation leak.
That was in 1990. The previous year, the N.R.C. said it
would license the Shoreham nuclear plant, on Long Island, even
though New York State said evacuation was not possible.
What, then, could a governor do? Even Alex Mathiessen, the
executive director of Riverkeeper, acknowledged that a
governor's main tool would be the "bully pulpit" of the
Shoreham is, though, a precedent of sorts. Mario M. Cuomo,
Andrew's father, who was governor at the time, reached an
agreement with the Long Island Lighting Company to shut
But there are crucial differences, experts say. One is that
Lilco was a utility regulated by New York State. Consolidated
Edison, which built and operated Indian Point 2 until it
sold it to Entergy, was such a company. But Entergy, based in
Jackson, Miss., is not regulated by the state.
"The changes in ownership make a difference," said Peter
Bradford, who was chairman of the Public Service Commission
when the Shoreham deal was struck.
"Certainly the shutting down of Shoreham came about in no
small part because Lilco was a state-regulated utility," Mr.
Bradford said "The order that really led to the shutdown was
one the public service commission issued, saying Lilco should
demonstrate that it was going to have adequate power supplies
for the forthcoming two or three summers, or make clear-cut
provisions for an alternative approach that would allow them
to get by without Shoreham.
"It's hard to see a situation where the Public Service
Commission or the state could issue a similar order to Entergy
today," he said.
New York could try to buy the reactors, Mr. Bradford said,
but might have to pay more than Entergy paid for them, since
the company would probably estimate their value according to
anticipated profits, which most experts believe makes them
worth more than the company paid. (Calculating the price paid
is difficult; Unit 3 was sold as part of a package with
FitzPatrick, and both plants were sold in a deal that included
a contract for the sellers to buy back the electric power for
Calculating the value would require estimating the future
price of electricity on the wholesale market, and estimating
how reliably the reactors will run, and for how long.
At Synapse Energy, a consulting firm in Boston that
recently produced two reports on the reactors for plant
opponents, David Schlissel, a nuclear expert, said, "If I
could foresee the future like that, I'd go to Las Vegas."
Entergy would argue that Indian Point's value to it is as
part of a system, with some economies of scale, said Larry
Gottlieb, a spokesman for the company. Mr. Gottlieb is based
in White Plains at an office that the company established to
oversee the two Indian Point plants, FitzPatrick, and Pilgrim,
in Plymouth, Mass., and it just closed on Vermont Yankee, near
the Massachusetts border. Some energy experts believe that the
plants are highly profitable for Entergy.
The procedure for Shoreham was simpler, because that deal
was made in the days when reactor owners were regulated
utilities. In Shoreham's case, the state calculated the amount
spent to build the plant, deducted what the public service
commission might label an "imprudent" investment, and made an
offer to Lilco.
A state could try to use its power of eminent domain to
take a plant. But Mr. Silberg, the industry lawyer, said that
a plant owner could argue in court that doing so for safety
reasons was illegal. A state could use eminent domain for
urban redevelopment or building a highway or some similar
purpose, he said, but the proper procedure for safety concerns
would be to petition the Nuclear Regulatory
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