Perspective
For Want of a Nail: Emergency Preparedness at Indian Point
May 1, 2003
By Donald P. Irwin
The issues facing Entergy's nuclear plant are fixable. Why shut it down?
What happens when law, technology, and politics collide? It's anyone's guess.
On May 2 the Federal Emergency Management Agency is scheduled to make a report to the Nuclear Regulatory Commission that may well determine whether Entergy's Indian Point nuclear plant, whose two reactors have been supplying the least costly 20 percent of New York City's electricity for two decades, continues to operate.
The bottom-line finding of FEMA's report on the status of offsite radiological emergencies preparedness for the plant will turn on whether New York state and the four counties in the 10-mile radius Emergency Planning Zone around the plant have submitted to FEMA certain updated information, recertifying their participation in offsite emergency preparedness. With a favorable FEMA finding, the plant continues to operate; without it, the plant goes onto a down-ramp to shutdown.
Indian Point, located 35 miles north of New York City, has the highest surrounding population of any nuclear plant in the country (300,000 people within the 10-mile emergency planning zone [EPZ]) and a chronic abundance of opponents. Opponents fanned post-9/11 unease about the effects of terrorism. As a result, New York Gov. George Pataki last summer commissioned James L. Witt, director of FEMA during the Clinton administration, to prepare a report on offsite radiological emergency preparedness for the plant. The final version, issued March 7, finds the current state of offsite emergency preparedness at Indian Point to be inadequate in an environment that includes terrorist threats.
Opponents immediately seized on the Witt report's finding to call for shutdown. A spokesman for Riverkeeper, one of the best-funded and most voluble long-term opponents of the plant, was reported in the March 8 New York Times as saying, "Witt's findings are clear. The evacuation plans are inadequate and the plan is unfixable given the new threats we face."
This response, however, is as revealing as it is inaccurate. First, as the Witt report's 500 pages (and its 68 pages of detailed responses to comments) recognize, emergency preparedness is a much more comprehensive matter than simply its hot-button component: immediate general evacuation. It is an integrated process involving the utility that operates the plant and governments at all levels. Planning is done iteratively over years, and plans are tested in biennial exercises. Response measures include a mix of strategies including sheltering in place, potential use of potassium iodide, and selective evacuation, as well as general evacuation, depending on timing and circumstances. Focusing solely on the doomsday hypothetical of immediate mass evacuation may be a good scare tactic, but it's not emergency planning.
Second, the Witt report simply does not assert that the Indian Point offsite plans-prepared by each of the four surrounding counties (Orange, Putnam, Rockland, Westchester) in the 10-mile EPZ, and by the state for the 50-mile EPZ-are "unfixable," or even inadequate under current legal standards. It does raise numerous good-practice issues, primarily involving improving coordination among the counties, and updates certain analyses and equipment used by planners and responders at all levels. It questions the assumption, given Indian Point's degraded political environment, that virtually all residents will comply with official instructions in an emergency. And it advocates various revisions to federal criteria, particularly in respect to responding to terrorism and conducting exercises. But the report is absolutely clear in recognizing that Indian Point satisfies governing NRC and FEMA requirements.
Federal law requires FEMA to make periodic findings to the NRC that emergency preparedness at every nuclear plant is adequate. Without such a finding, the NRC must shut the plant down, at least until the deficiencies are remedied. The system relies on the cooperation of the utility, and of state and local governments, to draw up coordinated emergency plans, and to demonstrate their viability in biennial exercises.
The utilities are responsible for on-site planning and communication; the governments are responsible beyond the plant boundary.
Onsite planning is seldom a problem: The utility has the highest motivation to develop an adequate plan, and Indian Point's owner, Entergy, has done so. However, if a government at any level fails, for whatever reason-lack of resources, venality, political convenience, etc.-to develop, implement, and certify an offsite plan (regardless of the merits), then a government at the next level must develop compensatory measures or the entire process is stymied.
This dependence on political cooperation-a matter beyond the direct control of any utility-distinguishes offsite emergency preparedness from any other nuclear plant management issue.
The four counties and the state have all had long-standing plans on file for Indian Point. They participated in the most recent regular exercise of the Indian Point emergency plans last September. FEMA issued its exercise report on Feb. 21, finding relatively minor problems, but no serious ones. However, the counties, beset by plant opponents, seized on the draft Witt report as an excuse to withdraw certification of their own existing plans. The state, in turn, has equivocated, and FEMA has given the state and counties until May 2 to supply missing information so that it can report to the NRC. Congressional committees and individual members also have begun getting into the act.
Before these actions lead to a shutdown order from the NRC, a few things ought to be remembered.
First, governments at all levels routinely do emergency planning for all kinds of disasters, with federal funding (utilities do it too, without the federal funding). So, radiological planning, though uniquely complex, is merely an application of existing knowledge and skills.
Second, nothing in the Witt report, or in FEMA's reports over the years, states or suggests that adequate emergency preparedness is not feasible for Indian Point. All of Witt's criticisms, many of which he concedes go beyond federal requirements, can be met; it will just take work and, in some cases, money (much of it from existing federal pass-throughs).
Third, terrorism doesn't change the radiological risk. The Witt report expresses concern over potential complications that terrorists could cause for emergency response. However, it rightly concedes that a successful terrorist attack would not change either the nature or extent of the underlying concern: a radioactive release from the core of the plant, however initiated. Federal law already requires the capability to respond to radiological events ranging widely in severity and speed, totally independent of the initiating event, and totally independent of whether the plant is operating or not. And since 9/11, U.S. nuclear plants, already the most hardened industrial facilities in the world, have been strengthened further at the NRC's insistence, and the scope of contingencies against which they must guard expanded.
New York state and the four counties have two clear responsibilities. One is to address promptly and together the shortcomings found by FEMA and as many of those found by Witt as feasible. That can be done, unquestionably. The second, fortified by this remedial effort, is to do their duty and re-certify their own plans, notwithstanding the political heat.
This latter task will take government leadership. As the Witt report observed, years of charged polemic around Indian Point have apparently negated workmanlike but uninspired public-information efforts by local authorities, producing a population "high in awareness but low in knowledge," and leaving public institutions in a state of undermined credibility.
It is possible to have effective emergency planning for nuclear plants without state or local governmental cooperation. In the 1980s, Suffolk County and New York state (relying on a report that purported to find that adequate emergency planning for the virtually complete Shoreham plant on Long Island was impossible) abruptly abandoned emergency planning for the plant. In response to this undisguised effort to frustrate its NRC operating license, the utility, Long Island Lighting Co., stepped into the breach. It drew up its own offsite plan, trained its own employees in place of public emergency workers, and demonstrated the efficacy of its plan and organization to FEMA and the NRC. Though Shoreham deservedly received its NRC operating license, and though a similar workaround could be effected at Indian Point, such a result is highly undesirable, no matter how effective.
Protecting the citizenry is the government's job, and when governments default on it they compromise their fundamental claim to legitimacy. Nothing is fatally wrong with Indian Point. If the government lives up to its duties, the plant will continue to supply the least expensive component of the New York metropolitan area's electricity; if they don't, the plant will end up being shut down, and those responsible will have to look themselves in the mirror, probably by candlelight.
Donald Irwin is a partner in the law firm of Hunton & Williams and has spent much of his time over the years on nuclear issues. He served as outside counsel for Long Island Lighting Co. in the emergency preparedness portion of the Shoreham nuclear licensing case. He is not involved in the Indian Point controversy. The views expressed are purely personal. He can be reached at dirwin@hunton.com.
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