The New York State Department of Environmental Conservation (“NYSDEC”) announced on June 9 that the comment period for a new cooling water intake technology standard under the Clean Water Act (“CWA”) § 316(b) will be extended through July 9. The draft policy for “best technology available” (“BTA”) for cooling water intake structures is aimed at reducing fish mortality by employing a closed-cycle cooling process. The process purportedly reduces fish mortality and protects fish roe and larvae by significantly reducing the amount of water withdrawn from New York water bodies, but may result in other significant impacts such as air, noise and visual impacts.
The majority of facilities in New York State that use cooling water intakes employ a once-through process whereby water is withdrawn from a waterway, converted to steam used to spin turbines and then later discharged back into the waterway at high temperatures. The draft BTA standards requiring a closed-cycle process have already been used by NYSDEC to support a permit denial for the Indian Point Nuclear Power Plant.[1] Indian Point requested a hearing on matters of law regarding the permit denial and Administrative Law Judge Villa will be presiding over the hearing July 20 with an issues conference schedule for July 21.
All facilities designed to withdraw 20 million or more gallons of water per day and require State Pollution Discharge Elimination System (“SPDES”) permits would be subject to the proposed new BTA standard, with certain exceptions. If an operator can demonstrate that closed-cycle cooling technology can not be physically implemented at a particular location, NYSDEC will require other measures to achieve equivalent reductions in entrainment and impingement. Such measures could include physical barriers, fish return systems, deterrent systems, and possible flow reductions and outages.[2] NYSDEC indicated in the Indian Point decision that cylindrical wedgewire screens would not be sufficient alone to meet this requirement, but wedgewire technology in addition to other modifications could achieve a 90% reduction in entrainment and impingement in lieu of adopting closed-cycle technology.
In determining what technology is feasible for reducing environmental impacts, the Supreme Court held that costs may be considered at the discretion of EPA or EPA’s designee, overturning a Second Circuit decision barring cost-benefit analysis under CWA §316(b).[3] Referencing that Supreme Court decision in its draft policy, NYSDEC defines feasible technology as “not wholly disproportionate to environmental benefits.”[4] The test places the burden on permit applicants who must show that relative costs are unreasonable. In addition, the draft policy states that the only environmental benefits to weigh in a cost-benefit analysis for BTA are reductions in entrainment and impingement.[5]
Comments on the draft policy should be submitted before 5 p.m. on July 9 and sent via mail to: BTA Policy Comments, NYS DEC – Division of Fish, Wildlife and Marine Resources, Bureau of Habitat, 625 Broadway 5th Floor, Albany, NY 12233-4756; or via email through the NYSDEC website.
Maggie Macdonald is a summer associate at Sive, Paget & Riesel, P.C.
[1] In NYSDEC’s notice of denial for the Indian Point Plant, the draft policy is mentioned as requiring closed cycle cooling or its equivalent (90% reduction in entrainment). (Notice of Denial at 19, fn.1.)
[2] Draft Policy, Appendix A at 11.
[3] Entergy Corp. v. Riverkeeper, 129 S.Ct. 1498 (2009).
[4] Id.
[5] Draft Policy, Appendix A at 15.
