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Nuclear Faceoff

Indian Point and the battle for the nation’s energy future.

April 2012

401 Water Quality Certificate (WQC). A WQC is a prerequisite for NRC relicensing and carries a 20-year term that runs parcel to the NRC’s operating license. In 2010, NYSDEC denied Entergy’s WQC application for both IPEC reactors, 4 citing IPEC’s need to utilize a closed-loop cooling system, which meets the definition of “best available technology” as defined by the CWA. 5 The net impact of the NYSDEC’s ruling essentially forces Entergy to retrofit IPEC with cooling towers that will mitigate intake discharge issues on the Hudson River. Entergy estimates such a retrofit will cost over $1 billion and will make IPEC economically unfeasible to own and operate. 6

Entergy has appealed the state’s denial of a water quality certificate, claiming that NYSDEC is misinterpreting the federal mandate for a cost-benefit analysis, contained in CWA sec. 316. 7 This mandate dictates that permitting decisions under the act must take into account any less-expensive alternatives—namely a wire-wedge intake structure that Entergy has proposed in lieu of a closed-cycle cooling system. 8 Yet, in countering Entergy’s claim, NYSDEC argues that under the CWA, the traditional cost-benefit analysis doesn’t apply when the technology isn’t the “best available technology” to ensure environmental protection—an interpretation that NYSDEC applies to wedge-wire screening. 9 This reading of the CWA is seemingly consistent with the Supreme Court’s holding in Entergy v. Riverkeeper , which created somewhat of a gray area in how agencies should interpret CWA sec. 316 and its mandate for a cost-benefit analysis. 10

In addition, Entergy finds fault with the NYSDEC’s decision on procedural grounds. In July 2011, Entergy petitioned the NRC, claiming that the NYSDEC waived its authority to make a WQC determination due to its inability to adhere to the CWA’s one-year time limit for such a decision. 11 This petition puts the NRC in the awkward position of making statutory interpretations that would clearly preempt state authority under the CWA. Although some precedent suggests that agency adherence to statutory time constraints doesn’t amount to a waiver of authority, there’s no case clearly on point. Administrative hearings regarding the matter began in late 2011.

State Prerogatives vs. NRC Authority

The significance of Entergy’s administrative hearing with the NYSDEC is complicated by the role the NRC will play in IPEC’s future.

Since its inception the NRC has relicensed every nuclear power plant whose application it has received. And in the case at issue, the NRC hasn’t given any indication that IPEC relicensing won’t occur, despite official opposition from NYSDEC. 12 Yet the situation remains unsettling.

On one hand, the NRC’s explicit grant of authority under the Atomic Energy Act is grounded on the notion of ensuring nuclear safety. In that sense, NYSDEC does have a theoretical ability to force IPEC’s closure based on environmental grounds. Such authority, however, raises deeper legal questions that are only recently facing scrutiny.

In many ways, New York State’s ability to use environmental concerns to force the closure of IPEC hinges on a possible final ruling from the U.S. Supreme Court in a separate controversy on the effect of a key state