Court ruling could change way area power plants use Hudson
Laura Incalcaterra and Greg Clary
The Journal News
01/27/2007
The Environmental Protection Agency must force power plants to use the best technology available to protect aquatic life in the nation's waterways, a federal appeals court has ruled.
Power plants have been allowed to use a cost-benefit analysis to determine the cheapest way to reduce fish kills rather than relying on the best technology available to meet that goal, said Hudson Riverkeeper Alex Matthiessen.
Riverkeeper, the Hackensack Riverkeeper, the Natural Resources Defense Council, Scenic Hudson, and others, including New York state, sued the EPA in 2005 to get the agency to enforce the Clean Water Act.
"Once again the judiciary has prevented EPA from rewriting the Clean Water Act at the behest of industry," said Reed Super of Columbia Law School's Environmental Law Clinic and the lead attorney for the suit.
The lawsuit followed regulations published by the EPA in 2004 that described how power plants must protect aquatic life when they take water from bays, rivers, lakes and oceans to cool their machinery.
The state and environmental groups accused the federal government of changing the rules so that power plants could avoid costly upgrades. By some estimates, trillions of fish, plankton, larvae and eggs are killed each year when power plants draw in water.
The 2nd U.S. Circuit Court of Appeals in Manattan ruled Thursday that it was improper for the EPA to let power plants circumvent environmental laws. In some cases, plants were allowed to restock fish rather than upgrade to better technology.
"It is a rejection of the EPA's refusal to adopt closed-cycle cooling as the best technology available," Matthiessen said.
About half of the nation's power plants use the closed-cycle method, which operates like a car radiator, reusing the same water and only requiring small amounts of new water to replace what is lost to evaporation. The system uses at least 95 percent less water than once-through systems, which draw from waterways and expel warmed water back into those waterways.
All three power plants in the Lower Hudson Valley use once-through systems.
Indian Point in Buchanan uses Hudson River water to cool its nuclear plant operations, but those involved in the EPA court case said the plant will likely not be directly affected by the ruling because its water-use permits were regulated by the New York State Department of Environmental Conservation.
The state DEC has directed Indian Point to construct a closed- cooling system to continue using the Hudson, and the company has challenged that decision. Owners Entergy Nuclear Northeast can continue to operate without spending more than a billion dollars to build cooling towers until a final decision is reached.
Entergy spokesman Jim Steets said the company saw promise in the court's decision because it left room for allowances where nuclear energy was involved.
"You can't conclude that this means the same thing for all plants across the country," Steets said. "It's not clear yet what the impact is on Indian Point."
The ruling's impact regarding the Mirant Corp.'s Lovett Generating Station in Stony Point and Bowline Point power plant in Haverstraw was also unclear yesterday. Both draw water from the Hudson.
Mirant spokesman Lou Friscoe said company attorneys would review the decision, but that adding cooling towers would be costly.
Meanwhile, Mirant is waiting to learn if the DEC will issue a new water permit so its Bowline plant can continue withdrawing from the Hudson. The company already has an updated permit for Lovett, Friscoe said.
EPA officials said yesterday they had not decided whether to appeal to the U.S. Supreme Court.
"EPA's goal is to protect fish and the ecosystem while meeting the nation's need for reliable energy sources," said Benjamin Grumbles, the agency's assistant administrator for water. "EPA is carefully reviewing the Second Circuit's opinion to assess next steps."
Reach Laura Incalcaterra at lincalca@lohud.com or 845-578-2486.
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