Legislative Memos

Memorandum in Opposition - A.10236-A (Galef) / S.8154-A (Harckham)

A.10236-A (Galef) / S.8154-A (Harckham) - AN ACT to amend the public service law, in relation to providing for decommissioning oversight boards for nuclear power plants in New York state

The Independent Power Producers of New York, Inc. (IPPNY) is a trade association representing companies involved in the development of electric generating facilities, the generation, sale, and marketing of electric power, and the development of natural gas facilities in the State of New York. IPPNY Member companies produce the majority of New York's electricity, utilizing almost every generation technology available today such as wind, solar, natural gas, oil, hydro, waste-to-energy, biomass, energy storage and nuclear.

IPPNY opposes A.10236-A (Galef) / S.8154-A (Harckham). The legislation is pre-empted by the jurisdiction of the Nuclear Regulatory Commission (NRC) and other federal agencies over the decommissioning of nuclear power plants and the use of their nuclear decommissioning trust (NDT).

These bills would establish a NYS Decommissioning Oversight Board, which, among other duties, would coordinate the efforts of State agencies' oversight of the decommissioning activities at a retiring nuclear power plant to ensure the retiring facility is in compliance with all state and federal regulations. The board also would advise the State on use of the NDT and recommendations for State action regarding any post-shutdown decommissioning activities and license amendment requests. The legislation states that any funds remaining in the NDT at the end of the decommissioning period must revert to the New York State Energy Research and Development Authority (NYSERDA) to be spent on renewable energy systems.

Federal oversight over the decommissioning process preempts the requirements of the legislation. The NRC, the Occupational Safety and Health Administration, the U.S. Department of Transportation, and the U.S. Environmental Protection Agency maintain regulatory oversight throughout the decommissioning process and the release of the property for other uses. The NRC’s decommissioning process already facilitates participation by state and local authorities and the public. The facility owner remains accountable to the NRC until decommissioning has been completed and the agency has terminated its license.

The NDTs are owned by the private companies that operate the State’s nuclear power plants, and the State’s ratepayers are not affected by the NDT or the decommissioning liability; accordingly, the State does not have jurisdiction over the uses of the NDT, which already are regulated by the NRC. Entergy Corporation owns the Indian Point Energy Center, having acquired the units and their NDTs from the New York Power Authority and Consolidated Edison. Exelon Corporation owns the Nine Mile Point, R.E. Ginna, and the James A. FitzPatrick Nuclear Power Plant, having acquired the facilities and their NDTs from Niagara Mohawk (now National Grid) and Rochester Gas and Electric (via Constellation Energy Group) and from Entergy. The customers of NYPA and the utilities relinquished all rights in those assets and their NDTs in return for (1) the purchase price and (2) the assumption by Entergy and Exelon of the obligation and risk to decommission the facilities. While it may be true that contributions to the NDTs originally came from NYPA and utilities’ customers, those customers have no ownership interest in the NDTs today and do not bear the risk of decommissioning the facilities.

The legislation states that the board must ensure that the NDTs are spent according to all applicable laws; however, it is unclear how the board would ensure this accountability, since these activities are under the NRC’s exclusive domain and the State cannot simply give itself an oversight role. Per NRC regulations, the use of an NDT is limited to pre-approved legitimate decommissioning expenses. The funds are not in the State’s purview to be used by NYSERDA for renewable energy. Additionally, enforcement by the New York State Attorney General is preempted.

For the reasons stated above, IPPNY opposes A.10236-A (Galef) / S.8154-A (Harckham).