ALBANY, N.Y. (CN) - Relicensing of the Indian Point nuclear power plants should not await approval of their compatibility with a coastal-protection program, an appeals court ruled Thursday.
The plants, known as Indian Point 2 and Indian Point 3, are located along the Hudson River near Peekskill in Westchester County, about 40 miles north of New York City. Pressurized water reactors produce electricity there that Consolidated Edison and the New York Power Authority buy to provide about 25 percent of the power used in the county and the city.
Both plants received 40-year operating licenses in the 1970s; owner Entergy Nuclear Operation Inc. applied to the Nuclear Regulatory Commission for 20-year license renewals in 2007.
Soon after the plants' initial licensing, though, New York joined the National Coastal Zone Management Program, a voluntary partnership of the federal government and U.S. coastal and Great Lakes states that looks to balance economic development and environmental conservation in coastal regions.
Under New York's Coastal Zone Management Program, however, any project proposed for a coastal area that requires a federal license is supposed to certify that it is consistent with New York's plan. If the state disagrees, no license will be granted unless the U.S. secretary of commerce intercedes. The Department of Commerce's National Oceanic and Atmospheric Administration - NOAA, the weather people - oversees the program on the federal level.
Because the Indian Point plants sit on the Hudson, the program would require that Entergy certify its consistency in its renewal applications to the NRC and that the state agree - a somewhat dicey proposition given Gov. Andrew Cuomo's vow to see the plants shut down.
Entergy, though, believed the certification was unnecessary because New York's program contained two exemptions: for projects that predate the 1976 adoption of the State Environmental Quality Review Act, or for projects whose final environmental impact statement was prepared before the coastal program took effect in the state in 1982. For Entergy, the Indian Point plants meet both exemptions.
Nevertheless, the company asked the New York Department of State, which runs the Coastal Zone Management Program, to determine whether the plants were exempt from the consistency review.
When the agency said they were not, and the Albany County Supreme Court upheld that determination late last year, Entergy appealed to the Third Department in Albany.
A unanimous five-judge panel reversed there Thursday, saying the exemptions apply to Entergy.
"Petitioners argue that the department's reading of the exemptions set forth in the CMP [New York's Coastal Management Program] conflicts with the plain meaning of those terms, and we agree," Justice Christine Clark wrote for the panel.
She noted that the Indian Point plants began producing energy a few years before the State Environmental Quality Review Act took effect and nearly a decade before the coastal program was approved.
And while the plants predated SEQRA's required environmental assessments, Clark pointed out that a final environmental impact statement on each plant was prepared under the National Environmental Policy Act of 1969, upon which SEQRA was based.
"Accordingly, applying the plain meaning of the language in the CMP, Indian Point 2 and Indian Point 3 are exempt from consistency review," Clark wrote.
Justices John Lahtinen, William McCarthy, John Egan Jr. and Eugene Devine concurred.
Entergy's Indian Point Energy Center, covering 240 acres, also contains Indian Point 1, a nuclear power plant built in the 1960s but shut down in 1974 because its emergency core cooling system did not meet federal requirements. The Nuclear Regulatory Commission expects it to be fully decommissioned by 2026.
The other two plants, which together produce about 2,000 megawatts of power, have been a sore spot for Gov. Cuomo for years.
A news release on the state's website says Cuomo "has long been an opponent of Indian Point and has worked to prevent the federal relicensing of the facility."
After the 2011 earthquake and tsunami that crippled Japan's Fukushima Daiichi nuclear power plant, Cuomo dispatched top officials to meet with the NRC about Indian Point and extracted a promise to make the plants a top priority in the agency's review of seismic risk at more than a dozen U.S. nuclear power facilities.
The Indian Point plants sit near a fault line, raising concerns about whether they could withstand an earthquake, the governor says.
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