“The Indian Point Closure Agreement: A Review with Legalistic Focus” by Michel Lee, Esq.
The Indian Point Closure Agreement: A Review with Legalistic Focus*
Most plants in the US nuclear fleet are operating near, or just beyond their original 40 year planned term of operation. Indian Point Unit 2 began operation in 1973 and Unit 3 began operation in 1975. Entergy filed for a 20 year license renewal in April 2007. The original license for Indian Point Unit 2 expired on September 28, 2013. The original license for Indian Point Unit 3 expired December 12, 2015. The Nuclear Regulatory Commission (NRC) routinely grants relicenses to nuclear plants, deeming nuclear plant owners to have a right to continue operation unless there is evidence of imminent lack of capability of safe operation. At the time of the Indian Point filing, the NRC had never denied a relicensing application.
Continued operation of Indian Point, however, was vigorously opposed by many environmental groups and citizens. New York became the first state in the nation to legally oppose the relicensing of a nuclear plant within its borders. New York State became an intervenor party, along with Riverkeeper, Inc. and Hudson River Sloop Clearwater, in lengthy litigation before the Atomic Safety Licensing Board (ASLB). The ASLB proceeding began in 2007 and hearings would have continued in 2017, and possibly longer.
In addition, deploying its powers of co-jurisdictional authority (with the federal government) over the Hudson River under the Federal Clean Water Act, New York State refused to grant Entergy a State Pollutant Discharge Elimination System (SPDES) permit, proposed denial of a Water Quality Certification (WQC) and, in November 2015, issued a denial of coastal consistency determination for Indian Point.
The Closure Agreement
The January 8, 2017 Indian Point Closure Agreement is a settlement agreement between NYS and the environmental group Riverkeeper (opponents of relicensing) and Indian Point’s owner/operator Entergy. Specifically, the signatory parties are: the State of New York (NYS); the Attorney General of New York; the New York State Department of Environmental Conservation (NYSDEC); the New York Department of State; the New York Department of Public Service (PSC); Riverkeeper, Inc; Entergy Nuclear Indian Point 2 LLC; Entergy Nuclear Indian Point 3, LLC; and Entergy Nuclear Operations, Inc (ENO).
Indian Point Unit 2 (IP2) “shall permanently cease operations no later than April 30, 2020” and
Indian Point Unit 3 (IP3) “shall permanently cease operations no later than April 30, 2021”.
(“Retirement Dates”) (p 2)
Extension beyond 2020/21 is possible “if NYS determines than an emergency exists by reason of war, terrorism, a sudden increase in the demand for electric energy, or a sudden shortage of electric energy or of facilities for the generation or transmission of electric energy”. The Retirement Dates can be extended up to 2 times for up to 2 year intervals – ergo for an additional 4 years in total. (p 2)
Extensions need to be upon “mutual agreement of NYS and Entergy”. No extension shall exceed 2 years in duration, and no extensions shall be granted, for IP2 and IP3 respectively, beyond April 30, 2024 and April 30, 2025. (p 2)
Entergy is to amend its license renewal application to the NRC to ask for new licenses which only continue, for IP2 and IP3 respectively, to April 30, 2024 and April 30, 2025.
NYS and Riverkeeper will not oppose such license renewal.
Entergy can, in its sole discretion, temporarily or permanently cease operation of Indian Point on dates that coincide with the end of fuel cycles for the reactors – or at any time if it deems shutdown is necessary for safety.
NYS and the AG have the right to enforce the Agreement.
Riverkeeper has the right to seek enforcement of the extensions limitations.
Notwithstanding, the Agreement terms “are expressly subject to any order issued by the United States secretary of Energy pursuant to Section 202(c) of the Federal Power Act.” (pp 2-3)
NYS agencies will “discontinue, and shall not initiate, any investigation involving, or any action against, Entergy (“Enforcement action”) for any actual or alleged Condition that NYS “knows about, or reasonably should know about” as of Jan 9, 2017. “Condition” means any condition – relating to damage, injury, threat or harm to human health, safety, natural resources, or the environment – that could give rise to a legal allegation. However NYS can act with respect to “a material unaddressed exacerbation of a known Condition” or a Condition that Entergy fails to address subsequent to permanent cessation of commercial operations of IP2 and IP3.” (pp 3- 4)
Riverkeeper will also not “participate directly or indirectly” in any action, including any citizen suit against Entergy regarding any Condition, along the lines agreed to by NYS.
NYS and Riverkeeper will not file any new NRC Proceedings (e.g., ASLB) contentions, will not support, and will use their “best efforts” to oppose such filings by others. (p 5)
NYS will issue Entergy a SPDES and grant WQC to Indian Point. NYS will expressly acknowledge in the final permits that continued operation of Indian Point through the Retirement dates is in compliance with all applicable water quality standards. Filings by NRS will be substantially in the form as Agreement Exhibits J and K, which include a Biological Fact Sheet, Supplemental Final Environmental Impact Statement (SFEIS) and SPDES permit and findings under the State Environmental Quality Review Act (SEQRA). (pp 6-7) But nothing in the agreement may be construed as an admission in other proceedings or relating to other environmental laws. (p 15)
Final SPDES permit “shall contain the thermal, biological monitoring, and seasonal flow conditions that previously were agreed to between and among NYSDEC Staff and Entergy by stipulations, respectively dated May 16, 2011 and June 19, 2015, the latter of which also includes Riverkeeper; provided that all thermal, biological monitoring and seasonal flow conditions, except to the extent otherwise provided in the respective stipulations, shall cease no sooner than the Retirement Dates.” (p 7)
Indian Point can continue to use its existing cooling intake structure technologies (with some agreed modifications) provided Entergy schedule annual refueling and maintenance outages (which average 30 days per year) between February 23 and August 23. [SPDES Permit allows this schedule to be excused by the PSC or New York Independent System Operator (SPEES Permit, par 26.] In view of (i) the early retirement of the plants, (ii) the site impact risks (due to blasting and other construction activity), and (iii) the estimated 9 years time it would take to introduce closed cycle cooling system, NYS determines that the existing system is the Best Technology Available (BTA).
Riverkeeper will stipulate to withdraw claims relating to the NYS Department of Environmental Conservation matter on behalf of the Natural Resources Defense Council and Scenic Hudson, Inc.
The Closure Agreement is a binding upon each party’s successors and assigns except (with respect to Entergy and Riverkeeper), “as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium, receivership, or similar laws affecting creditors’ rights”. (pp 9-10)
Concurrent and Post-Operational Commitments
Entergy will conduct visual inspections of all baffle former bolts and ultrasonic inspections of all accessible IP3 baffle former bolts in spring 2017. Entergy will then conduct visual and ultrasonic inspections of all accessible original baffle former bolts at IP2 in 2018, and at IP 3 during the2019 refueling outages. Entergy will also conduct general visual inspections of new bolts, and, if any of these are found to be degraded, it will ultrasonically inspect all inservice new bolts. “Entergy will replace all bolts with indications that are required to ensure structural integrity of the baffle structure during all design conditions.” (Schedule 1, p 1) Baffle former bolt inspections are to be independently reviewed by qualified non-destructive examination analysts. Good bolts will be replaced to ensure sufficient safety margins are maintained, accounting for the failure rate and clustered failure of bolts in the recent operating history. Entergy will also support detailed examinations of IP2 bolts related to crack initiation and crack growth.**
NYS Annual Inspections
Entergy agrees to an annual inspection by NYS-designated representatives on “issues pertaining to continued operation of IP2 and IP3 through 2021. Duration, scope and participation in these inspections will be according to advance Entergy and NYS “mutual agreement”.
“Expedited” Spent Fuel Transfer to Dry Casks
Entergy will transfer a minimum of 4 casks with a capacity of 32 bundles each of IP2 and IP3 spent fuel to dry cask storage a year and will transfer 24 casks by the end of 2021. Entergy will “use its best efforts” to maximize the transfer of spent fuel each year, as limited by industrial and radiological safety concerns, technical limitations of the site’s fuel handling facilities, and licensing and regulatory restrictions on the site and dry cask system used at the plant. “Entergy’s current plan is to load and transfer between 4 and 8 casks each year.” (Sched 1, p 1)
IP2 Loose Parts Retrieval or Assessment
Entergy will inspect for and remove “or assess the safety consequences” of any loose parts present on a cycle-to-cycle basis starting with the 2018 IP2 inspections.
Entergy Steam Generator Inspections
Entergy agrees to conduct a general visual inspection of the steam generator channel head and the tubesheet region for evidence of cracking at IP3 during its 2017 refueling outage, and IP2 during its 2018 refueling.
Entergy will establish a $15 million fund to benefit the Hudson River and support environmental protection and the community, with priority given to projects for dam or culvert removal, purchase of sensitive wetlands areas, continuation of scientific studies advancing protection of riverine species, prevention of introduction of invasive species into the watershed, and other projects deemed consistent with the purposes of the fund by NYS and Entergy.
Entergy will, in 2017, implement “targeted plant and hardware modifications at Indian Point to minimize potential releases of radiologically-contaminated fluids to groundwater from normal and temporary plant systems and operations.” (Schedule 1, p 2) These may include installation of a high level alarm and backflow prevention measures in Fuel Storage Building Sump 28, sealing and coating of that building’s Truck Bay subfloor, and sealing or replacing designated building/structural joints.
[Exhibit I to the Agreement, provides: WQC holders are required to assure thermal discharges protect wildlife of the Hudson River and required to operate Indian Point consistent with NRC radiological release regulations. NYS approval certifies the plant is currently in compliance “based on the facts and circumstances in the record to date, but that future radiological releases to the Hudson River, if any, that materially differ from those addressed in the record may be subject to separate action by NYSDEC to the extent authorized by applicable law.” (Exhibit I, par 3- 4) Coverage under the Section 401 WQC applies to normal operation of the facility and does not cover ongoing maintenance activities that result in discharges, which require Section 404 permits. The WQC holder is authorized to “operate its cooling water intake structure and to discharge in accordance with effluent limitations, monitoring and reporting requirements”. ]
Emergency Operations Facility in Fishkill
Entergy will design and build a new alternate Emergency Operations Facility (EOF) in Fishkill, NY to be operational by mid-2018. Entergy will provide key support to future Entergy emergency planning activities for Indian Point. Entergy will operate and maintain the EOF until “Entergy reasonably determines, based on applicable NRC guidance and regulations, that it no longer requires the facility to fulfill applicable off-site emergency planning requirements.” (Schedule 1, p 3)
Entergy will seek to begin “Radiological Decommissioning” “within 120 days after it has made a reasonable determination that the funds in the nuclear decommissioning trust are adequate to complete Radiological Decommissioning and any remaining spent nuclear fuel management activities that the Federal government has not yet agreed (or been ordered) to reimburse. Once Entergy receives NRC approval of, or non-opposition to, its filings, Entergy shall promptly commence, pursue, and complete as soon as reasonably practicable Radiological Decommissioning. Non-radiological remediation activities, if any, that remain after decommissioning and other restoration activities shall commence only after completion of license termination, Radiological Decommissioning, and those site remediation activities under the sole authority of the NRC.” [sic] (Schedule 1, p 3)
How Closure May Be Impacted by the NY PSC Nuclear Power Subsidy Scheme: Indian Point Could Get Ratepayer Subsidies in 2 Years
Under Tier 3 of the Aug 2016 Public Service Commission Order (PSC Order), Indian Point may become entitled to so-called “ZECs”**** (ratepayer subsidies) in as little as 2 years if it can no longer make enough profit to satisfy its corporate operator. While the Jan 2017 Indian Point Closure Agreement provides for closure of units 2 and 3 in 2020 and 2021, the agreement allows for multiple 2 year extensions under certain circumstances until Apr 30, 2024 / 2025.
During Entergy’s press conference the day the Closure Agreement was made public, the president of its wholesale commodities division proclaimed Indian Point had suddenly become unprofitable: “The costs of operating a nuclear power plant have been higher than expected, running well above inflation for a number of years.” Regardless of how long Entergy wishes to run the plant, there is nothing preventing it from seeking ZECs in 2 years. There is also nothing that would prevent transfer of the plant to Exelon, a giant conglomerate with dominance in nuclear and large investment in gas operations. The corporation has a reputation for fighting against renewables. Thanks to the PSC Order, Exelon now holds a strong financial and political power position in NY. As operator of the upstate nuclear plants it may get an estimated $7.6 billion in public subsidy. Exelon could get billions more if it takes over Indian Point and manages to get retirement extensions. Notably, under the PSC Order, the nuclear subsidies are funneled to Exelon. There is no requirement any of the money be spent on safe operation of New York’s nuclear plants or retention of workers.
*The review was prepared by Michel Lee, Esq. for the Indian Point Safe Energy Coalition (IPSEC). The review was of unsigned Closure Agreement documents posted by Riverkeeper on January 9, 2017 (and we caution there may have been changes to the final signed settlement. Please direct any questions to IPSEC 1-888-474-8848.
**Baffle bolt deterioration risk and inspection was a contention of focused dispute during the 2015 Atomic Safety Licensing Board (ASLB) Hearings. Reactor vessel internals are structures located within the reactor vessel which support and orient the nuclear fuel assemblies. The baffle is a large internal structure which directs coolant flow through the reactor core (up through the fuel assemblies). It is composed of large metal plates bolted to the edges of horizontal former plates which are bolted to the inside surface of the core barrel. The bolts that secure the baffle plates to the former plates are called the baffle-former bolts. Baffle bolts are made from a stainless steel alloy and measure about 2” in length and 5/8” in diameter. They are supposed to be able to withstand “decades’ worth of neutron bombardment, as well as extraordinarily high temperatures and pressure.” At the ASLB hearings, just months prior to the discovery, the NRC expert had noted baffle deterioration was expected to be ~1.5%. When Indian Point 2 entered a refueling and maintenance outage in March 2016, Entergy’s inspection team found that 227 of the 832 baffle-former bolts were degraded (e.g., had indications of cracking). The extent of bolt damage – a failure rate of over 27% was the highest ever discovered at any plant in the world by a wide margin.
***Indian Point has had a long history of radioactive leaks on the site, into the groundwater, and into the Hudson River. Tritium – a radioactive form of water – has been the primary radioactive contaminant, but not the only one. Other leaks have involved cesium-137 and strontium-90, both of which last for hundreds of years and have half lives of ~30 years.
****“ZECs” stand for “zero-emissions” credits. The designation of nuclear in this manner is illegitimate as a matter of science, not just semantics. Nuclear generates greenhouse gas emissions, radioactivity emissions, radioactive leak emissions, waste emissions, and thermal pollution emissions. With respect to greenhouse gasses, the full fuel cycle is an extractive, polluting, and fossil-fuel intensive. In addition, the fission process creates radioactive carbon – C-14 – carbon which is entirely manmade. For pressurized water reactors like Indian Point, the carbon is in the form of methane. Nuclear power generation carbon emissions are not monitored at the point of the plant stacks, so the precise amount of such emissions is unknown.