Synopsis: Power plants like the one in Morro Bay may be able to go on indefinitely using water from bays, estuaries and the ocean to cool their generators—and kill untold billions of fish and larvae in the process—under new regulations of that water use by the U.S. Environmental Protection Agency despite federal court decisions ordering sharp restrictions.
Four years after a federal appellate court ruled that the country's existing power plants like the Morro Bay Power Plant must stop using estuary,
bay and sea water to cool their generators and nearly 40 years after the U.S. Clean Water Act was enacted without any provision authorizing withdrawal of water, which kills untold billions of fish and larvae every day, the U.S. Environmental Protection Agency (EPA) has proposed new regulations that do not appear to place binding new restrictions on such water use.
Plants that draw in two million gallons of water a day or less would be exempted from any controls to reduce or eliminate water use and the killing
of sea life. Other plants with greater intakes would be able to delay or avoid restrictions on withdrawal of water from these water bodies if state officialsadministering the regulations determined—in their "best professional judgment" on an individual basis— that costs to plant owners would be disproportionately high compared to the benefits, i.e. not killing fish.
In other words, in some cases, marine life wouldn't be worth saving.
The proposed regulations call for any new controls on water use by plants to be put in place within eight years of adoption of the rules, which is
expected next year. But whether that eight-year deadline is firm was not made clear.
In their own lengthy, complex and sometimes confusing way, the proposed federal regulations are much like the state policy adopted by the state water board last year that purports to require California's 19 power plants (including Morro Bay) to adopt plans to phase out the use of water for
cooling (called once-through cooling, or OTC) by different dates. The state policy has gaping loopholes (See Slo Coast Journal /June) that could allow power plant owners to avoid compliance with those dates, which range from 2015 (Morro Bay) to 2024 (Diablo Canyon Nuclear Power Plant).
The Morro Bay plant's owner, Dynegy, has submitted a policy compliance plan that fails to commit to ending use of OTC by 2015, as the policy
requires. The plan lists a number of possible options that Dynegy says it may pursue in bringing the plant into compliance, including replacing the present two operating generators with a 164 megawatt simple-cycle combustion turbine that would be cooled by air without the use of water. That idea has many uncertainties attached to it in the Dynegy plan.
The federal regulations, which are available now for public comments at Water.EPA.gov, would require most completely-new plants to use closed-cycle cooling, which would have no impacts on marine life if fresh water were used in the process, as is often the case where that process is used at newer plants. The water is circulated within plants and cooled by air, much like in a car radiator. (Comments opposing or finding objections to the regulations can be submitted through the National Resources Defense
Council at NRDS.org /Advocacy.
Had the proposed federal rules been more stringent in phasing out OTC, they would have taken legal precedent over the state policy and might
have promised to be more effective in achieving what the landmark United States Court of Appeals for the Second Circuit's decision required in 2007 for existing plants. Here is how that appellate court framed its decision:
"This is a case about fish and other aquatic organisms. Power plants and other industrial operations withdraw billions of gallons of water from the nation’s waterways each day to cool their facilities. The flow of water into these plants traps (or "impinges") large aquatic organisms against grills or screens, which cover the intake structures, and draws (or "entrains") small aquatic organisms into the cooling mechanism; the resulting impingement and entrainment from these operations kill or injure billions of aquatic organisms every year. Indeed, a single power plant can kill or injure billions of aquatic organisms in a single year."
Indeed, had Duke Energy's proposed replacement plant been built, it would have killed between 17% and 33% of the fish and crab larvae in the Morro Bay National Estuary, according to studies conducted by Duke's own marine biology consulting firm. The plant now operates very little but when it does, an unknown number of larvae are drawn into the plant and destroyed. Construction of a new Morro Bay plant is considered highly unlikely.
The Clean Water Act, adopted in 1972, requires that any standard applied to power plants "shall require that the location, design, construction,
and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." Minimize is defined by Dictionary.com as "to reduce to the smallest possible amount or degree." The Act makes no mention of the use or allowance of such water for power plant cooling. And it makes no mention of possibly considering costs in requiring best technology available (BTA).
The federal appellate court in New York said in its decision that "Congress in establishing BTA (best technology available) did not expressly permit the Agency (EPA) to consider the relationship of a technology’s cost to the level of reduction of adverse environmental impact it produces." The relationship is known as cost-benefit.
Power plant companies appealed the appellate court decision to the U.S. Supreme Court, which upheld it—except on cost-benefit, which the court said could but wasn't required to be applied by EPA and states in adopting rules on OTC. That invalidation of one single point in the appellate
court decision didn't seem so significant until the EPA chose—voluntarily—to apply it in drafting the new regulations. And that opened the door for what appears to be a complete evisceration of the Clean Water Act's requirement that adverse environmental impacts be minimized by power plants if they use estuary, bay, or ocean water for cooling. (Conservatives often accuse perceived liberal judges of being "activist" judges on allegations they base their rulings on personal views and thereby sometimes create law, rather than interpret it. That term might be applied to the court that ruled 5-4 to allow cost-benefit, which is not contained or mentioned in the Clean Water Act. Judge Antonin Scalia wrote the decision for the majority.)
The EPA claims that "while the Supreme Court's decision is limited to whether or not EPA may consider one factor (cost/benefit analysis) under
section 316(b) (of the Clean Water Act), the language also suggests that EPA has wide discretion in considering other factors that it deems relevant to 316(b) standard setting." However, the court decision does not appear to mention in what manner EPA can or should apply the cost-benefit
concept.
EPA said it has "interpreted 'best technology available' to mean the best technology available at an 'economically practicable' cost. This approach
squared with the limited legislative history of section 316(b) which suggested the BTA was to be based on technology whose costs were 'economically practicable.''' No evidence supporting that reading of the history of the Clean Water Act has been made available.
The appellate court said that costs could be considered but in a completely different way and not to compromise minimizing adverse
environmental impact. That court would have allowed selecting the cheapest of technologies that produce equivalent results.
The appellate court said "the specified level of benefit is more properly understood as a narrowly bounded range, within which the EPA may permissibly choose between two (or more) technologies that produce essentially the same benefits but have markedly different costs."
In reviewing possible controls for existing plants using two million gallons of water a day or more, EPA said it first considered the availability and
feasibility of various technologies, their costs, including potential costs to facilities as well as households, and economic impacts of different
technologies, including cost-effectiveness relationships and the location, age, and size of existing plants where they would be used.
The agency said it chose the first of four options it developed for top priority and possible required use by these existing plants. The option would require the same control on impingement—screens over water intakes to keep out young or mature sea life of some size—for all plants but site-specific controls on entrainment to be determined by state and local permitting administrators. (All new plants would be required to use closed-cycle cooling or its equivalent.)
For existing plants using 125 million gallons a day or more, the control for impingement also would be screens, but controls on entrainment wouldbe determined by state administrators based on information submitted by plant owners, detailing the amount of entrainable sea life vulnerable to the plant intake as well as available technologies for controlling entrainment, their costs, and the non-water impacts, mainly air quality impacts.
Importantly, the EPA said an administrator, in deciding on a control for entrainment, could "determine that no other technologies beyond
impingement control (screens) meet the criteria for selection as BTA because no other technologies are feasible and/or their benefits do not justify
their costs." How even fine-mesh, two milimeter screens could keep out most minute larvae was not made clear.
"The permit writer may reject an otherwise available entrainment technology as BTA (or not require any BTA controls) if the costs of the controls
are not justified by the benefits," EPA said. That apparently means that entrainment would go uncontrolled.
The other three options that EPA said it considered for controlling impingement and entrainment varied, several apparently being more stringent
than the selected one but one more lax.
EPA concluded that "closed-cycle cooling reduces impingement and entrainment mortality to the greatest extent. But EPA has determined that
closed cycle cooling is not the 'best technology available' for this proposal." That is, for required use by all existing plants. Why? "The record shows
that closed-cycle cooling is not practically feasible in a number of circumstances. While EPA cannot identify with precision the extent of these
limitations on installation on closed-cycle on a nation-wide basis, EPA knows that the circumstances are not isolated or insignificant."
The factors that led EPA to reach the conclusion that closed-cycle cooling should not be required of all existing plants, it said, were energy
reliability, air emissions permits, land availability, and remaining useful plant life and the costs of closed-cycle cooling.
If a control on entrainment is required, EPA said plants must comply "as soon as possible" under a schedule established by the permitting
administrator. But "EPA expects a facility could reasonably require as long as eight years to attain compliance." Elsewhere, EPA said facilities also would have to comply with the impingement mortality requirements as soon as possible and could request additional time "not to exceed eight years."
Whether eight years will be the maximum amount of time allowed for either entrainment or impingement controls—or both—was not made clear.
