A recent decision of the New York State Department of Environmental Conservation (“NYSDEC”) highlights the growing tension between a renewed national interest in nuclear energy and established principles of environmental protection. Last week, NYSDEC staff denied Entergy Nuclear Operations (“Entergy”) a water quality certification necessary for the continued operation of Indian Point Units 2 and 3 (collectively “Indian Point”), located in Buchanan, New York. As part of its license renewal application with the Nuclear Regulatory Commission (Indian Point’s licenses expire in 2013 and 2015), Entergy, the plant’s operator, applied for a Water Quality Certificate (“WQC”) pursuant to Section 401 of the Clean Water Act. In a letter dated April 2, 2010, NYSDEC informed Entergy that it would not issue a WQC because Indian Point’s activities violated state water quality standards and the Clean Water Act. Without the WQC, the Nuclear Regulatory Commission cannot renew the licenses.
NYSDEC’s decision focused on Indian Point’s cooling water intake structures, which draw up to 2.5 billion gallons of water daily from the Hudson River. It based its denial on the “significant adverse impact upon aquatic organisms” caused by these structures, on the leakage of radioactive material into the river, and thermal discharges into the river. The Hudson River’s cold water is critical to the steam-powered process, triggered by the heat of nuclear reactions, that generates electricity.
Since the power plant’s inception, fish and other organisms have been killed or injured by the operation of the cooling water intake structures. The structures use “once through” technology to draw in vast quantities of water – containing fish and organisms, which are discharged back to the river after the water is used. Larger organisms, such as fish, are “impinged,” or crushed against the cooling water intake structures as they are sucked against the machinery. Smaller organisms, such as eggs, plankton and larvae, are “entrained,” or drawn into the cooling water intake structures, where they are injured or killed. In its application for a WQC, Entergy proposed the continued use of once-through technology, combined with the use of cylindrical wedge-wire screens to reduce impingement and entrainment.
NYSDEC determined that Entergy’s proposal did not represent the “best technology available for minimizing adverse environmental impact,” a standard required by New York regulations, 6 NYCRR § 704.5, and the Clean Water Act, CWA § 316(b), 33 U.S.C. § 1326(b). NYSDEC stated that the “closed-cycle” cooling system, which recycles cooling water within the plant, represented the best technology to minimize entrainment and impingement and was “available” to Entergy despite being expensive to implement. In contrast, NYSDEC determined that the addition of cylindrical wedge-wire screens to once-through intake structures not a “reasonable alternative intake technology” because it would only “reduce adverse environmental impacts;” it would not “minimize” them. Specifically, NYSDEC stated that the utility of the proposed screening technology was not proven at a facility using as much water as Indian Point, and, according to available studies, would not result in sufficient reduction in entrainment.
In addition to its determinations under the “best technology available” standard, NYSDEC also stated that the Indian Point’s once-through cooling water intake structures do, and would continue to, result in the unlawful “taking,” or harm, to the shortnosed sturgeon (a New York endangered species) and the Atlantic sturgeon (a federally protected species) under state and federal law. Finally, the dangers posed to fish by impingement and entrainment, thermal discharges, and radioactive leakages would also render the water surrounding Indian Point unsuitable for its designated best purpose under state law – secondary contact recreation and fishing. See 6 NYCRR § 701.11.
Industry, environmentalists, and regulators have battled over the environmental damage caused by Indian Point’s once-through cooling system for the nearly four decades since the plant opened. NYSDEC’s denial letter recites the complex history of the statutory, regulatory, and advocacy factors which resulted in Indian Point’s continued use of once-through cooling technology in the face of state and federal “best technology available” requirements. By specifically endorsing closed-cycle cooling technology as “available” and “feasible” and rejecting Entergy’s proposed alternative as environmentally inadequate, NYSDEC underscored that it does not interpret its cooling water intake regulations as grounds for traditional cost-benefit analysis. In contrast, EPA regulations interpreting CWA § 316(b), 40 CFR § 125.90 – 125.99, are influenced by cost-benefit analysis; they allow less expensive alternatives to closed-cycle technology and allow the agency to issue variances based on cost-benefit analysis. Last year, in Entergy v. Riverkeeper, 129 S. Ct. 1498 (2009), a divided Supreme Court upheld these regulations. While the Court held that § 316(b) does not bar EPA from using cost-benefit analysis, it noted that the statute does not require cost-benefit analysis, either.
NYSDEC’s decision has not caused Indian Point’s immediate shutdown because Indian Point’s current operating licenses have not yet expired. Furthermore, Entergy may appeal the decision administratively by requesting a hearing within 30 days. According to the New York Times, Entergy may lobby Congress to repeal the Nuclear Regulatory Commission’s requirement that licensees hold a state water quality certificate. The result for Entergy and Indian Point will likely have national repercussions in light of the Obama Administration’s greater emphasis on nuclear energy as a non-fossil fuel source of electricity.
