NY passes ban on dumping radioactive waste in Hudson River

The “Save the Hudson” bill — a New York measure that prohibits the dumping of radioactive waste into the Hudson River — is one step closer to becoming a law after passing a special session of state Assembly Tuesday evening.

The 100 to 44 vote for passage came after an avalanche of community momentum and unanimous passage through the State Senate last week. But even if Gov. Kathy Hochul signs the measure into law, implementation could prove challenging because nuclear facilities and their waste management usually fall under federal law.

The measure is written to prohibit the dumping of any radiological substances in connection with the decommissioning of a nuclear facility into the Hudson River. Only one such facility exists along this waterway: Indian Point Energy Center in Buchanan, which ceased operations in April 2021.

The plant’s owner — Holtec International — announced in February that the site would dump more than 1 million gallons of radioactive water into the Hudson River, starting as early as this summer.

The water involves a less intense radioactive isotope, known as tritium, and the release is well within federal standards. But nuclear experts have expressed uncertainty about what level of exposure is safe and whether the effects have been sufficiently studied. As Gothamist reported in April, when tritium chemically embeds into organic matter, such as plants and animals in the food chain, its radiation dose can intensify tenfold.

Assemblymember Dana Levenberg sponsored the bill in her chamber and cited economic impacts as the driver for the legislation. The perception of one million gallons of radioactive water dumped into the Hudson will cause an economic depression in the region, she said.

“The purpose of this bill is to prevent adverse impacts,” Levenberg said.

During the special session, the bill was met with heavy opposition from Republican members who said the state had no authority in this arena and that the real issue is changing the “false public perception” that dumping more than one million gallons of radioactive water is hazardous. Nuclear power plants and their activities typically fall under federal authority via the Nuclear Regulatory Commission.

“Most operating and decommissioning nuclear plants discharge liquid radioactive effluents to the adjoining body of water, whether a river, lake or the ocean,” Neil Sheehan, the Nuclear Regulatory Commission's public affairs officer, stated via email.

The bill still needs the governor’s approval, who did not express support or opposition when asked about the measure on Tuesday — a tone she has maintained since the bill's introduction.

The debate over radioactive risk

Republican Andy Goodell questioned whether the tritiated water was really dangerous at all, given the site was dumping the pollution into the Hudson River during its 60 years of operation.

“Everything in the world is radioactive, but the real question is how radioactive,” Goodell said.

When tritiated water is released from a nuclear facility, it is filtered, tested, analyzed and monitored, and Indian Point’s past discharges were well within federal standards, according to the Nuclear Regulatory Commission. Goodell said if people’s perceptions are driving the law, then the law should be to correct the “false public perception.”

“We wrestle with fact and fiction, with perception and reality,” Goodell said. “Nuclear experts say this [dumping] is the best approach.”

Nuclear expert Edwin Lyman, Union of Concerned Scientists, said while discharges may be within acceptable levels, there isn’t enough information to understand what levels are actually acceptable, if any at all. David Lochbaum, Director of the Nuclear Safety Project for the same organization, stated that none of the available disposal options will fully prevent the radioactive materials from seeping into the environment and into the homes, schools and drinking water in the area.

For months, towns surrounding Indian Point have rallied against standard decommissioning methods, swelling the attendance at public meetings and hearings on the process. The issue has gained national attention, and an online petition has amassed nearly 450,000 signatures as of Tuesday.

“There is just such a groundswell of support of people saying treating the Hudson as a dumping ground has to stop,” said Tracy Brown, president of Riverkeeper, a local environmental advocacy group. “The river's a defining feature for our communities, and people realize that it suffers from deaths by a thousand cuts.”

But Holtec is well within its rights to follow the commonly accepted practice of dumping its radioactive water into the Hudson River. The company’s spokesperson Patrick O’Brien called it “the best option,” and nuclear experts said other options — such as dumping the water elsewhere, evaporating it or storing it onsite until the radioactivity decays — were not really any better. Tritium has a half-life of approximately 12 years.

Federal vs. state laws on nuclear waste

The Nuclear Regulatory Commission wouldn’t comment at this stage on what impact a state law might have on the discharge of radioactive waste from Indian Point, but its spokesperson did confirm the federal agency’s responsibility for the oversight of these activities. However, the federal agency does not get involved in specifying the disposal, storage or method of nuclear disposal.

“The NRC license-holder — in this case, Holtec — could file a pre-emption challenge in federal court,” Sheehan of the NRC said. “In other words, the company could argue federal law preempts, or takes precedence over, state law in this case.”

But New York is also an “agreement state,” which means the Nuclear Regulatory Commission does relinquish some authority, according to Raya Salter, a member of the Climate Action Council and an environmental and climate justice lawyer. While the commission still has primacy, the status keeps a formal door open to discussion. Salter added that New York state and the federal agency have a long history of formal collaboration.

“I would not call pre-emption the most likely outcome although we can expect litigation.” Salter said. “Put another way, I certainly hope that [the Biden] administration won't use its authority to ram a radioactive waste dump through the all-important Hudson Valley over the state's objection.”

O’Brien, Holtec’s spokesperson, stated the company has no current plans to formally challenge the proposed law, but wrote via email that the bill is “most likely preempted by federal law, but would need to be litigated.”

“To be determined; it’s hypothetical at this point; and I don’t speculate,” O’Brien said. “The Governor also needs to sign or veto so there’s a lot of what-ifs still to work through.”