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AUTHORITY
Marine Impacts Regulatory Structure
Clean Water Act
The Clean Water Act went
into effect to restore our nation’s water resources through regulation and
conservation.
Section 316 was added to
allow EPA to regulate intake and discharge of water to the marine
environment through National Pollution Discharge Elimination System (NPDES)
permits.
Permitting authority has
not been granted to Massachusetts; however the state (DEP and CZM) and
federal government (EPA) work in parallel.
CWA, Section 316(a)
is the regulatory framework for thermal effluent: outflow/discharge. EPA is
supposed to impose an effluent limit that will “assure the protection and
propagation of a balanced, indigenous population of shellfish, fish, and
wildlife in and on that body of water.” The licensee can demonstrate that
the discharge limit is more stringent than necessary.
CWA, Section (b)
mandates that “a point source shall require that the location, design,
construction, and capacity of cooling water intake structures reflect the
best technology available for minimizing adverse environmental impacts.”
This section applies only
to intake of water, not discharge with its major goal to minimize the
impingement and entrainment of fish and other organisms drawn into a
facility’s cooling water intake.
National Performance
Standards: EPA did not spell out any national performance standards in
the Act. Riverkeepers challenged in court, visit their website for details.
The court decided 1995 that EPA must come up with national performance
standards for new plants and for existing plants by Feb 2004.
2/17/04: EPA Issues Rule Allowing Power Plants to Continue Massive Fish
Kills
Leavitt Flouts Recent Court
Ruling and Bows to White House Pressure
FOR
IMMEDIATE RELEASE, February 17, 2004
Contact: Reed Super
845.424.4149, x 224
646.345.9658 (mobile)
Garrison, NY – The U.S. Environmental Protection Agency issued a final
regulation late yesterday allowing existing power plants to continue using
the most environmentally-damaging type of cooling system known as
once-through cooling. The rule also purports to sanction so-called
“restoration measures” despite a recent federal court decision
invalidating their use in cooling water regulations. Governor Leavitt
rejected his staff’s recommended closed-cycle cooling technology
requirements at the direction of OMB’s Office of Information and Regulatory
Affairs, Riverkeeper charges, and accepted OIRA’s flawed, biased
cost-benefit test in contravention of the Clean Water Act’s “best
technology” mandate.
“EPA has completely abdicated its Congressionally-mandated duty to require
best technology for minimizing fish kills,” said Alex Matthiessen, Hudson
Riverkeeper and Executive Director of Riverkeeper, Inc. “This was Governor
Leavitt’s first big test, and he has shown himself to be indifferent to
federal law and unwilling to stand up to the White House.”
“Today’s rule simply invites more litigation, given that the U.S. Court
of Appeals just two weeks ago determined EPA lacks authority to allow
compliance through restoration,” said Reed Super, Riverkeeper Senior
Attorney and lead attorney in the lawsuit challenging the Phase I rule. “EPA
has made a mockery of the Clean Water Act by maximizing fish kills with the
worst technology available, when it was required to do just the opposite.”
EPA is developing cooling water intake regulations in three phases, pursuant
to Clean Water Act section 316(b) and a consent decree in a 1993 lawsuit,
Riverkeeper, Inc. v. Whitman, 93 Civ. 0314 (U.S. Dist. Ct., S.D.N.Y.).
The Phase I rule, issued in 2002, requires newly constructed facilities to
use closed-cycle cooling or equivalent technology, but – until this month’s
court decision – had allowed plants the alternative of using restoration
measures in lieu of that technology. Restoration includes such measures as
building artificial wetlands or operating a hatchery to replace wildlife.
Yesterday’s Phase II rule is much more lenient that the Phase I rule in
that it allows existing plants to withdraw billions of gallons per day
through their once-through cooling systems, rather than converting to
closed-cycle cooling, which uses 95% less water. Instead of flow
reduction, the Phase II rule includes ranges of weak and variable fish kill
reduction standards loosely based on less protective intake screens and fish
returns. As in Phase I, the Phase II rule allows compliance through
restoration measures instead of technology. It also provides several
variances, including one based on site-specific cost-benefit analyses
similar to the national one undertaken by EPA and OIRA. These provisions are
illegal and will perpetuate significant ecological damage, Riverkeeper
charges.
On February 3, 2004, the U.S. Court of Appeals for the Second Circuit in
Manhattan ruled that because they are designed to correct for adverse
environmental impacts, rather than minimizing those impacts in the first
place, “restoration measures are inconsistent with Congress’s intent that
the ‘design’ of intake structures be regulated directly, based on the best
technology available.” Riverkeeper, Inc. v. U.S. Environmental Protection
Agency, No. 02-4005 (2d Cir., February 3, 2004) (slip op. at 18-19).
Rejecting a simultaneous challenge from industry, the court upheld the Phase
I rule’s basic requirement that new plants install closed-cycle cooling or
equivalent technology to minimize fish kills.
The Phase II rule Governor Leavitt signed yesterday will be published in the
Federal Register in a few weeks, and can be challenged in federal court two
weeks after that. Riverkeeper and many others will challenge the rule and
will likely seek a stay pending appeal. Unless EPA or the court issues a
stay, the new rule will go into effect 60 days after publication. State
permitting agencies may impose conditions stricter than the federal minimum
regulations.
For more information on cooling water intake technology and environmental
impacts, see the Background and Fact Sheet listed to the right.
Pilgrim NPS Water
Discharge Permit # MA 0003557 – fall 2004
The Discharge Permit is
issued by Environmental Protection Agency (EPA), reviewed for input by
Department Environmental Protection (DEP) and signed off by Coastal Zone
Management (CZM). A public hearing is held. The public may comment or choose
to intervene. To participate, contacts listed below.
Contacts:
EPA: Sharon Zaya is
working on the permit (Tel. 617-918-1995). John Nagel is their biologist
(Tel 617-918-1054). Dave Webster chairs the monthly EPA meetings to
determine which permits EPA will put resources on and schedules Hearings
(Tel 617-918-1791).
DEP: Gerry Szal
(Worchester Office) 508-767-2789 Gerald.Szal@state.ma.us;
Paul Hogan, assisting.
CZM: Todd Callaghan at
671-626-1233
Todd.Callaghan@state.ma.us
More
about NPS environmental impact
PilgrimWatch.org
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