Campaigning About A-Plants, but Without Actual Power
By MATTHEW L. WALD
The New York Times
August 21, 2002

WASHINGTON, 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 jurisdiction.

"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 focus.

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 process."

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 office.

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 it.

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 several years.)
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 Commission.

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