Morro Bay Power Plant
SWRCB Adoption of New Once Through Cooling Policy
By Jack McCurdy
For 55 years (as of next July) the Morro Bay Power Plant has been sucking millions of gallons of water and untold numbers of fish out of the estuary to cool its generators. But three years ago, a federal court decision that ultimately became law ordered it stopped, not only in Morro Bay but at 18 other existing plants along the California coast and nationwide. This was because, it turns out, the 35-year-old U.S. Clean Water Act had never permitted the use of estuary, bay, tidelands, and sea water for that purpose.
Last month, the California State Water Resources Control Board (SWRCB), which has jurisdiction over power plant water use, adopted a landmark new state policy aimed at requiring that cooling technology replace reliance on water at all those old plants after the board spent years of drafting and re-drafting regulations to conform to the new federal law.
But that effort seems clearly to have failed to achieve its goal.
Ultimately, the final, amended policy that was approved by the board on May 4 was left with vague language and loopholes that could allow plants to skirt the legal requirement to stop the use of continual flows of water for plant cooling (called once-through cooling or OTC). And even if the policy were somehow enforced to actually phase out OTC, the plants would be allowed anywhere from five to 14 years to do so, under its provisions.
There also were contradictions in the final policy, perhaps the biggest one involving Morro Bay.
The reason that all plants were given many years to end OTC is that the board and other state agencies maintain that the plants would be needed for all those coming years in order to ensure what is call grid reliability, which means adequate supplies of electricity will be available to the public during the conversion from OTC to technology for cooling.
But, the policy states flatly, the Morro Bay plant is not needed for grid reliability. Yet it will be allowed to operate for five more years until 2015. This contradiction was pointed out numerous times by the Coastal Alliance on Plant Expansion (CAPE), the nonprofit citizens group that has been monitoring previous plans to build a new Morro Bay plant and any future plans for development of the plant site. But the board never acknowledged the contradiction or explained why the plant should be allowed to operate for five more years—and continue to take its toll on aquatic life in the Morro Bay National Estuary—when it admittedly is not needed.
The federal decision leading to enactment of the board policy says nothing about phasing out a practice (OTC) that had never been authorized under the Clean Water Act in the first place. But even if some manner of phase-out were subsequently to be deemed reasonable by courts, which some attorneys believe courts might allow, the length of time for finally ending OTC—five to 14 years—seems beyond reason. This is particularly true in view of the fact that an expert consultant hired by the board two years ago concluded that the plants are marginally needed and OTC could be phased out much sooner.
For all these reasons, CAPE believes that the policy fails to conform to the new federal law on OTC and may face challenge in the courts.
Last fall, the Morro Bay plant's owner, Dynegy, announced plans to stop using OTC and close the plant in 2015 after that compliance date was included in an early draft of the board's policy. But with the loopholes in the final policy, that may now be uncertain.
A top Dynegy official, Randy Hickok, told the Journal two weeks ago that the plant almost certainly will not be able to operate after 2015 under the adopted policy's water use restriction. But he added that the company is exploring new water filtering technology to protect against absorbing aquatic life, which might allow the plant to still operate beyond 2015, although he said it seems very unlikely at this time.
The policy will not take effect until it is reviewed by the state Office of Administrative Law, which may take several months. And shortly after that, Hickok said, Dynegy will need to submit a compliance plan to the board, essentially a declaration of how or if Dynegy intends to operate under the policy.
The OTC policy that was on the water board's agenda on May 4 was strongly opposed by a wide array of organizations, including CAPE, the city of Morro Bay, the California Coastkeeper Alliance, the Sierra Club, the National Resources Defense Council, and the Mills Legal Clinic at the Stanford Law School, plus an estimated 10,000 individuals who filed comments with the board. Nearly all the groups argued that the policy on the May 4 agenda had been significantly weakened in enforcing federal requirements since an earlier version was made public last fall. And some contended the latest version failed to comply with federal law.
The law in question stems from the Riverkeeper II decision (January, 2007) by the United States Court of Appeals for the Second Circuit, which held that the U.S. Clean Water Act requires "best technology available" to be used to cool existing power plants. And also prohibits water from estuaries, bays, deltas, the ocean, lakes, rivers, or steams. The same court in 2004 had issued a virtually identical decision covering new power plants to be built.
As a consequence, the state water board began developing a statewide policy five years ago to implement the decision. But from the very beginning, the draft versions fell short of what the court decisions required—in the opinion of state and local groups—which have been coordinated by the California Coastkeeper Alliance. Twenty-one groups signed the Alliance's comments opposing the policy that the board took up on May 4.
The groups argued that the draft policy was deeply flawed and would have failed to meet the court decision's requirement to phase out OTC impacts to coastal and delta ecosystems.
After the May 4 action, the Alliance issued a statement saying the Board adopted a final policy that "addressed many—though not all—of the most critical issues raised by the coalition" and that has "put California on track to phase out once-through cooling." For example, the standard of feasibility for determining whether a plant owner could seek a waiver from complying with the policy was restored during the board hearing on May 4 after having been removed in the draft policy.
The adopted policy consists of two "tracks" that all plants must follow. All begin in Track 1 with individual compliance dates and requiring a 93% reduction in the flow rate of water taken into the plant. If owners can show compliance with Track 1 requirements is "infeasible," the board can allow them to shift to Track 2, which requires a 90% reduction in that rate or impacts on sea life.
The draft policy also had allowed mitigation—for example, payment of money or some kind of environmental improvement—as an alternative to complying with the policy. But that, too was removed. It also reduced the potential for continued extensions of deadlines to comply with the policy, the Alliance said.
Other members of the OTC coalition, except CAPE, however, have not made any comments on their assessment of whether the adopted policy adequately conforms to the law.
CAPE believes the final policy is legally deficient in these ways:
—Feasibility of compliance by plants rests on stated criteria, which include "environmental impacts, local ordinances, regulations, etc." These criteria are so broad and ill-defined that it would seem to be impossible to determine the legitimacy of waiver claims submitted by power plant owners.
—The water board has the authority to waive the dates by which plants must comply for ending OTC, if the California Energy Commission, California Public Utilities Commission and the California Independent System Operator, which will act as advisors to the board on implementation of the OTC policy, find such waivers are needed for grid reliability. Therefore, compliance dates could be postponed indefinitely.
—A study (Electric Grid Reliability Impacts from Once-Through Cooling in California, April, 2008) by the board's own expert consultant concluded that the plants will only be needed for a few more years and "given a sufficient time to react, the electric industry could likely tolerate and compensate for mass OTC plant retirement at relatively modest costs to the ratepayer" and with the "potential for significant benefits to the environment."
—Inserted into the adopted policy is the statement that "cost is not a factor to be considered when determining feasibility under Track 1." However, section G of the policy still states, "The State Water Board recognizes it is necessary to develop replacement infrastructure to maintain electric reliability in order to implement this Policy and in developing this policy considered costs, including costs of compliance, consistent with state and federal law." This is contradictory. And cost of achieving best technology available to determine feasibility of compliance is not permissible under federal law.
—-The policy significantly dilutes monitoring requirements that are essential to determine whether progress towards use of best technology available and ecosystem health is being made by power plants over any time period set for compliance.
—The policy fails to comply with new state climate change requirements being administered by the California Air Resources Board by allowing the old, polluting power plants to operate longer than necessary. In addition, the policy's assessment of state needs for energy—resulting in allowing existing plants to operate longer than seems necessary—fails to take into account the rising availability and state funding support of alternative energy sources, such as solar power, which was recognized last year by the state Energy Commission as a feasible alternative to conventional power plants.
Jack McCurdy is co-president and co-founder of CAPE. This article was not written
on behalf of CAPE and does not necessarily reflect its views.
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