COMMENTS TO NJPDES PERMIT NO.
0005622
CONCERNING § 316(B) OF THE
CLEAN WATER ACT
SUBMITTED BY THE MID-ATLANTIC
ENVIRONMENTAL LAW CENTER
ON BEHALF OF:
AMERICAN LITTORAL SOCIETY; CLEAN
OCEAN ACTION; COALITION AGAINST TOXICS; COALITION FOR PEACE & JUSTICE;
DELAWARE AUDUBON SOCIETY; DELAWARE RIVERKEEPER; DELAWARE SIERRA CLUB; GREEN
OCEAN SOCIETY; NEW JERSEY ENVIRONMENTAL FEDERATION; NEW JERSEY PUBLIC INTEREST
RESEARCH GROUP; NEW JERSEY SIERRA CLUB; STOCKTON PEACE ACTION; SURFERS'
ENVIRONMENTAL ALLIANCE; UNPLUG SALEM ALLIANCE
Section
316(b) of the Clean Water Act, 33 U.S.C. §1326(b), requires that the
"location, design, construction, and capacity of a cooling water intake
structure reflect best technology available for minimizing adverse environmental
impact." There is no question that Public Service Electric and Gas Co.'s
("PSE&G") Salem Nuclear Generating Station ("Salem")
SNGS is a point source with a cooling water intake structure ("intake
structure") subject to § 316(b). What is at issue is whether permit No.
NJ0005622 ("Permit") requires the design, capacity and location to
"reflect best technology available" ("BTA") for
"minimizing adverse environmental impact."
Commentators
submit that the Permit is not consistent with CWA § 316(b) for two fundamental
reasons. First, the Permit impermissibly considers costs in rejecting true BTA
at Salem. Particularly in light of last month's unanimous Supreme Court Opinion
in Whitman v. American Trucking, it is
improper for the Permit to consider the costs of BTA at all in making a BTA
determination because § 316(b) does not allow consideration of costs. Even if
costs were relevant, the Permit should have assessed the marginal increase in
costs to ratepayers for requiring BTA, instead of rejecting BTA based in part on
PSE&G's flawed comparison of total costs of conversion solely to the
commercial and recreational worth of lost fish. In any event, by disregarding
societal costs and benefits, NJDEP misapplies the cost/benefit test.
Second,
the Permit does not "reflect" BTA. NJDEP agrees that Salem is having
adverse environmental effects. Yet the Permit fails to "minimize" such
impacts. To minimize such impacts, the Permit should require a technological
conversion at Salem that adopts or reflects BTA, which is "dry
cooling," a type of technology that reduces adverse impacts by as much as
99 percent. The Permit's purported BTA conditions are not BTA. They do nothing
to reduce entrainment losses, which account for 99 percent of Salem's adverse
impact, and reduce impingement losses under the best circumstances, by only 0.2
percent.
Following
a background intended to supplement that found about the permit in NJDEP's Fact
Sheet, this comment has four parts. Part One discusses why NJDEP erred in
considering costs. Part Two supports NJDEP's findings that Salem is having
adverse environmental impacts, but disagrees that the Permit minimizes these
impacts; and, Part Three submits that Salem must adopt or reflect dry cooling --
a technology NJDEP did not consider -- because it is BTA. Part Four explains how
the design, capacity and location of Salem's intake do not reflect BTA.
I.
BACKGROUND TO NJPDES Permit No. 0005622
Along
the estuarine banks of one of the most ecologically important flyways and
ecosystems in the world, Public Service Electric and Gas Company (PSE&G)
operates the Salem Nuclear Generating Station (Salem), one of the largest
powerplants in the world. The SNGS is located along the Delaware River Estuary
at Artificial Island on the eastern shore of the Delaware River in Salem County,
New Jersey, approximately fifty miles northwest of the mouth of Delaware Bay and
thirty miles southwest of Philadelphia.[1]
Salem has two nuclear reactors, Units 1 and 2, which came on-line in 1977 and
1981, respectively.[2] Both Units 1 and 2 employ
once-through cooling. Once-through cooling results in the continuous withdrawal
of water from, and the discharge of wastewater into, the Delaware Estuary.[3]
Salem
withdraws cooling water from the estuary by means of a cooling water intake
structure virtually unparalleled in size anywhere
else in the world. The intake structure has twelve intake bays with
associated screens that rotate at an average of 0.9 inches per second, and
twelve water pumps.[4] Each pump has a capacity
of 266 million gallons per day, giving Salem a cooling water intake capacity of
3.2 BGD.[5]
After use, Salem's cooling water is discharged into the Delaware Estuary near
the New Jersey-Delaware state line.[6]
The
SNGS has been operating (and withdrawing water) under the aegis of the CWA's
National Pollutant Discharge Elimination System (NPDES) permit program since the
early 1970's. In the early 1980's, EPA delegated NPDES permitting authority to
New Jersey, and with it, authority over Salem's CWA permit. PSE&G has been
operating Salem pursuant to an NJPDES permit since September 1, 1994, which
expired August 31, 1999, but has since been administratively extended.[7]
In
1978, EPA (which at the time had permitting authority over Salem) issued a
consent decree requiring PSE&G to submit a Section 316(b) demonstration.[8]
Thereafter, EPA provided PSE&G with technical guidance to assist the
company with submission of the Section 316(b) demonstration.[9]
PSE&G subsequently submitted its first Section 316(b) demonstration
in 1984.[10]
Following delegation of the NPDES program to New Jersey in 1982, the
State undertook the task of evaluating the demonstration.[11]
On
October 3, 1990, DEP issued a Draft Permit (1990 Draft Permit) that adopted
Versar's findings, and proposed requiring Salem to convert to a closed-cycle
cooling system.[12]
On June 24, 1993, however, DEP issued a second draft permit for Salem
(1993 Draft Permit) that reconsidered the 1990 Draft Permit. The 1993 Draft
Permit proposed a mitigation experiment and associated measures in lieu of the
more stringent technology-based controls (i.e., a closed-cycle cooling system)
required by the 1990 Draft Permit.[13]
Following
extensive public comment, DEP issued a final permit (1994 Permit) on July 20,
1994, which allowed PSE&G to continue to operate Salem with little change.
The 1994 Permit's conditions ostensibly combine both technological and
mitigative means for attempting to minimize adverse environmental impacts. The
1994 Permit contains seven special conditions.[14]
NJDEP contended that three of these conditions represent compliance with Section
316(b): (1) reduction of the permitted intake flow of Salem from its maximum
design capacity to its maximum actual operating capacity;[15]
(2) modification of the design of the screens on Salem's intake structure;[16]
and (3) development and implementation of a plan to study the feasibility of
deterring fish from entering the area surrounding Salem's intake structure
through the use of underwater speakers and/or sound projectors.[17]
Non-BTA
conditions were included purportedly as further means of minimizing adverse
environmental impact.[18]
These included: (1) a wetlands restoration and enhancement program in and around
the Delaware Estuary;[19]
(2) establishment of a Management Plan Advisory Committee to provide technical
advice to PSE&G concerning the development and implementation of the
mitigation project;[20]
(3) spending at least $425,000 to build and maintain five fish ladders at
approved locations for tributaries to the estuary;[21]
and (4) conducting a baywide biological monitoring study.[22]
To help execute the biological monitoring study, DEP required PSE&G to
establish a Monitoring Advisory Committee.[23]
The Committee was empanelled to advise PSE&G regarding biological monitoring
design, implementation, modifications and results interpretation.[24]
Instead of explicitly infusing Salem's permit with a condition requiring that
Salem comply with Section 316(b) (as the New York DEC had in Hudson
Riverkeeper Fund), NJDEP required: "With respect to Section 316(b), the
Department's determination [at the time of permit reissuance, scheduled for
September 1, 1999] will include, but not be limited to, an evaluation of whether
technologies, their costs and benefits, and potential for application at the
Station have changed."[25] The 1994 permit produced
two challenges.
On
or about August 19, 1994, both the State of Delaware and a group of fourteen
environmental, conservation, and fishing interests (Coalition) appealed issuance
of the 1994 Permit.[26]
The State and the Coalition's legal arguments were, in principle,
aligned. They each argued that the
1994 Permit did not ensure that the design, capacity, and location of Salem's
intake structure reflect BTA for minimizing adverse environmental impact in
accordance with Section 316(b);[27]
that the costs of certain technology-based compliance measures not required by
DEP were not wholly disproportionate to the environmental benefits conferred by
such measures;[28] and that Salem's intake
structure was having an undue impact on interstate waters.[29]
PSE&G
settled both challenges. PSE&G's settlement with the Coalition included
requirements to reevaluate its fish screen and return systems, and evaluate
newly-developed technologies to reduce impingement and entrainment. PSE&G's
settlement with the State of Delaware's required it to spend roughly $10 million
on mitigation and restoration projects in Delaware waters over the term of the
permit. It also agreed to review Salem's intake structure problems with fish
entanglement with marsh grasses or other debris found in the intake screens and
to test new technology designed to reduce associated fish mortality if
necessary, and to fund any NJDEP review of PSE&G's evaluation of alternative
intake technologies for the Salem plant.
In March of
1999, PSE&G submitted its permit renewal application.[30]
The permit application consists of 36 volumes and 167 volumes of
reference material.[31]
Due to the large amount of materials, “[NJDEP] contracted the services of ESSA
Technologies, Ltd. of Richmond Hill, Ontario, Canada, for those issues
associated with Section 316(b) of the Clean Water Act . . .”[32]
Under the terms of its settlement, PSE&G paid for these services.
NJDEP
announced the issuance of a draft permit for public comment on or about December
28, 2000 (hereinafter, "2000 draft permit"). In the draft permit,
NJDEP "determined that [SNGS's] existing once-through cooling system in
conjunction with an intake flow limitation, an enhanced fish return system and
the study and potential implementation of a multi-sensory hybrid system
constitutes best technology available.”[33]
II.
NJDEP'S
BTA DETERMINATION MAY NOT CONSIDER COSTS AND IN ANY EVENT THE COSTS OF BTA ARE
NOT WHOLLY DISPROPORTIONATE TO THE ENVIRONMENTAL BENEFITS
CONFERRED
NJDEP
states "BTA is intended to mean the best technology available commercially
at an economically practicable cost and, further, that the costs of a technology
must not be wholly disproportionate to the environmental benefit to be gained.[34] NJDEP then posits that it
-- and not PSE&G -- shoulders the burden of demonstrating that any given BTA
is cost effective.[35]
Applying this
standard, NJDEP "determined that the Station's existing once-through
cooling system in conjunction with an intake flow limitation [Special Condition
1], an enhanced fish return system [Special Condition 2, as modified] and the
study and potential implementation of a multi-sensory hybrid system [Special
Condition 3, as modified] constitutes best technology available."[36]
NJDEP says that "the Department is committed to requiring implementation of
any cost-effective alternate technologies that will minimize impingement an/or
entrainment effects,"[37]
but evidently accepts PSE&G's position "that the costs of any [other
technological] alternatives would be wholly disproportionate to any benefits
provided," and thus that "none . . . is available for Salem."[38]
NJDEP's
use of cost considerations to influence its BTA determination is incorrect in
both invocation and application. Section 316(b) neither requires nor allows
costs considerations in making BTA determinations. Section 316(b) of the CWA
requires that an intake structure "reflect [BTA] for minimizing adverse
environmental impacts," and NJDEP engrafts onto the statute what is plainly
not there. Assuming arguendo that
costs are germane, NJDEP misapplies cost considerations by employing a
cost/benefit ratio approach instead of evaluating the marginal rate increases
ratepayers would have to bear if BTA were installed at Salem. This misstep
proves to be outcome predictive and one that avoids application of BTA at Salem.
Applying the correct cost methodology, assuming the most expensive technology
(closed-cycle cooling), complete pass-through of costs to ratepayers, and no
other sources of revenue, the maximum rate increase to PSE&G's ratepayers
would be only one and one-tenth of one
percent (1.1), or about $1.00 per month per ratepayer with an average bill of
$100.00 per month. Contrary to NJDEP's contention, legal precedent holds
that such costs are certainly not wholly disproportionate to environmental
impacts. Assuming arguendo a
cost/benefit ratio approach is allowed, NJDEP misapplies it by failing
adequately to consider societal benefits of BTA.
A. NJDEP's BTA
Determination May Not Consider Costs
In
contrast with other aspects of the CWA that specifically contemplate economic
considerations when addressing adverse environmental impacts, §316(b) allows no
such thing.[39] By omitting any reference
to costs, Congress simply did not wish for costs to be considered.[40]
Section
316(b) of the Clean Water Act requires that “the location, design,
construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental
impact.”[41] The statutory language
makes no direct or inferential reference to economic considerations. ." [42]
If Congress intended economics to be a factor in determining BTA, it would have
specifically worded the statute to do so; NJDEP may not engraft such
considerations at Salem.
The most
recent statement of controlling law reiterates this basic tenet of
administrative law that an agency may not consider costs in implementing a law
unless Congress allows it to do so. See
Whitman v. American Trucking Co. et al. (Feb. 27, 2001), 2001 U.S. LEXIS
1952, *17 (Scalia, J.)[43] In Whitman,
the Court considered whether §109(b)(1) of the Clean Air Act (CAA) allows EPA
to "consider the costs of implementation in setting national ambient air
quality standards (NAAQS) under Section 109(b)(1)."[44]
Section 109 of the CAA requires the Administrator inter alia to set primary ambient air quality standards “the
attainment and maintenance of which . . . are requisite to protect the public
health” with “an adequate margin of safety.”[45]
Respondents American Trucking argued, among other things, that the phrases
"public health" and "adequate margin of safety" allowed EPA
to consider the costs of setting the standards.[46]
By unanimous
decision, the Court disagreed and ruled that not only may
not agencies consider costs, but they must
not do so, unless Congress explicitly allows it: "the textual
commitment [to consider costs] must be a clear one.[47] Noting that the
provisions at issue "say not a word about costs," the Court said:
"we find it implausible that Congress would give to [an agency] … the
power to determine whether implementation costs should moderate national air
quality standards."[48]
(“Congress . . . does not alter the fundamental details of a regulatory scheme
in vague terms or ancillary provisions – it does not, one might say, hide
elephants in mouseholes.”[49]).
Absent language allowing consideration of costs, the Court does not even believe
it is a close call, observing:
Were it not
for the hundreds of pages of briefing respondents have submitted on the issue,
one would have thought it fairly clear that this text does not permit the EPA to
consider costs … [t]he language is 'absolute.' … Nowhere are the costs of
achieving such a standard made part of that initial calculation.[50]
Thus,
Congress does not intend for an agency to consider significant issues like costs
unless it explicitly says so. In the words of the Court, this
"unambiguously bars cost considerations … and thus ends the matter for us
as well as [an agency]."[51]
The same
holds for §316(b). It says "not a word about costs." CWA § 316(b),
like CAA § 109(b)(1), § 316(b), is a technology-forcing[52]
provision that does not allow EPA, or a state with delegated authority to issue
NPDES permits with conditions under § 316(b), to consider costs.
[53]
Nowhere is NJDEP given the power to determine whether costs should moderate
implementation of §316(b). It was improper for the agency to do so here.
That this is
so is made all the more clear by noticing, as the Court did in American Trucking, that Congress is well able to say when and how
costs may be considered. Indeed, In American
Trucking, the Court noted the string of provisions in the CAA in which
Congress allows for consideration of implementation costs.[54]
Citing a string of cases fundamental in Administrative Law, the Court thus
"refused to find implicit in ambiguous sections of the CAA an authorization
to consider costs that has elsewhere, and so often, been expressly
granted."[55]
Again, the
same holds true for §316(b) and the CWA. As with § 109(b)(1) of the CAA, CWA
§ 316(b) can easily be distinguished from other provisions that
"specifically contemplate economic considerations when addressing adverse
environmental impacts."[56] For example, Congress
required 'best technology economically achievable' in defining how effluent
standards for specified categories of pollution sources are to be created
pursuant to CWA § 301(b)(1)(A), 33 U.S.C. § 1314(b)(1)(B), and 'best available technology
economically achievable for implementing standards for discharges of toxic
pollutants. 33 U.S.C. § 1317(a). Section 316(b), however, makes no mention of
costs.
Last,
assuming the "legislative history" of a single statement linking §
316(b) and economic considerations even relevant [57]
-- which American Trucking says
it is not -- the statement does not establish whether or how costs are to be considered otherwise,
and in any event cannot be inflated to re-write the provision as enacted.[58]
B. Considering Marginal Cost Increases Attributable to BTA Would Have Supported Closed-Cycle Cooling
Assuming, arguendo
that an economic analysis is appropriate for CWA §316(b), NJDEP should have
assessed the marginal costs of BTA to ratepayers, instead of considering total
costs versus total economic benefit. EPA has applied the "wholly
disproportionate" test as a marginal
cost increase -- and not a total cost ratio -- analysis. Instead, NJ used a
total cost versus benefit ratio as the guiding principle of the "wholly
disproportionate" test. This is incorrect. Had NJDEP applied the correct
test, it would have to require PSE&G to convert to closed-cycle cooling.
A
cost-benefit analysis is clearly out of bounds.[59]
Based on the Fourth Circuit's holdings in Appalachian
Power Co. v. Train[60]
and E.I. du Pont de Nemours & Co. v.
Train,[61]
PSCO argued in Seabrook II that a BTA determination should be accompanied by a
formal cost/benefit analysis.[62]
Consistent with its own guidance, [63]
EPA found in Seabrook II, that "[t]here
is nothing in Section 316(b) indicating that a cost/benefit analysis should be
done."[64]
Instead, the
standard that EPA has applied when it has considered costs is whether the cost
of the technology to be required is wholly disproportionate to the environmental
benefit to be gained.[65]
In Seabrook II, EPA remarked that
"it is [not] reasonable to interpret Section 316(b) as requiring use of
technology whose cost is wholly disproportionate to the environmental benefit to
be gained," reasoning that "some consideration ought to be given to
costs . . . otherwise the effect would be to require cooling towers at every
plant . . . regardless of whether any significant degree of entrainment or
entrapment [impingement] was anticipated."[66]
Nonetheless,
rather than turning to a cost/benefit ratio, the "wholly disproportionate
test" requires an evaluation of the marginal
rate increase to ratepayers of BTA.[67]
EPA has ruled that § 316(b) cost considerations require consideration of the
marginal cost to each ratepayer of implementing a proposed technology, and not
the total cost of the technology to a utility.[68]
In Brunswick, for example, EPA found
that while a reduction in capacity of 96% would cost a total of $106,300,000,[69]
the monthly marginal cost to each residential ratepayer would be a mere $.77 to
$.85 per month, or an increase of approximately 2.5%.[70]
When EPA compared this 2.5% rate increase with the 96% reduction in the
adverse environmental impact associated with conversion to a closed-cycle
system, EPA concluded that "an increase of approximately 2.5% from the . .
. average monthly residential [electric] bill is not wholly disproportionate to
a 96% reduction in the severe adverse environmental impacts of the plant."[71]
Applying a
marginal cost increase test here would have established that the cost of closed
cycle cooling is not wholly disproportionate to the environmental benefits.
Indeed, applying this test, NJDEP has found that the marginal cost of closed
cycle cooling at Salem is not wholly disproportionate to environmental benefits.[72]
NJDEP has acknowledged such costs to be a mere $0.20 per month ($1989).[73]
The Permit should have considered such marginal cost increases.
Natural draft
towers save about 86% of the fish for only a 1.1% increase in revenue,
[74]
thus equating, at the most, a 1.1
percent increase in rates.[75]
Assuming the typical PECO or PSE&G ratepayer uses 1000 kWh a month and has a
monthly bill of $100, the 1.1% revenue increase needed to install natural draft
towers at Salem would translate to an per ratepayer increase of $1.10 per month,
or $13.20 per year. The Permit should have considered such marginal cost
increases. No such comparison can be attempted for dry cooling because NJDEP did
not even consider it.
C. Even Though a Cost/Benefit Test is Impermissible, NJDEP Misapplies It
In addition
to being incorrect in the first place to consider a cost/benefit analysis, NJDEP
nonetheless misapplies it. Although NJDEP makes a strong statement of its
commitment, it incorrectly accepts, without question, the economic analysis
conducted by PSE&G in support of its permit application.[76]
PSE&G contends "[a] permitting authority cannot require an alternative
as BTA when its economic and environmental costs are wholly disproportionate to
its environmental benefits."[77]
PSE&G studies six potential alternatives to the existing once-through intake
structure at Salem and finds "that, in the case of each alternative, costs
are wholly disproportionate to benefits."[78]
PSE&G submits that "NJDEP's 1994 determination that the existing fish
protections system is BTA for Salem"[79]
is correct, and that "[t]here are no additional intake technologies or
measures that are functionally suitable for adoption at Salem at an economic and
environmental cost that is not wholly disproportionate to the environmental
benefits provided."[80]
To support
its contention, PSE&G utilizes a cost-benefit ratio analysis (CBA).[81]
PSE&G's CBA calculates the cost of the alternatives by calculating:
(1) the costs associated with construction and installation; (2) incremental
operating and maintenance costs; and (3) the value of lost power at Salem as a
result of construction and changes in continuing plant operations.[82]
PSE&G
calculates the benefits of the alternatives by assigning a monetary value to the
commercial and recreational fishing benefits expected if alternatives were
implemented.[83]
The assigned values for commercial fishing range from $0.07 per pound for
Atlantic menhaden to $3.05 per pound for striped bass.[84]
The assigned value for recreational fishing is $3.52 per pound.
The estimates of pounds of fish caught commercially and recreationally
are based on 1990 to 1996 harvests.[85]
PSE&G
then estimates the total cost for natural draft towers and mechanical draft
towers to be $712.0 million and $849.2 million respectively.[86]
PSE&G estimates the benefit of implementing closed cycle cooling to be a
mere $58 million.[87]
PSE&G further calculates the cost-benefit ratio for natural draft towers to
be 12.3:1 and the ratio for mechanical towers to be 14.7:1. Applying these
figures, PSE&G concludes that closed cycle cooling is not BTA for Salem
because the costs associated with its installation are wholly disproportionate
to the environmental benefits that would be gained.[88]
NJDEP thus
concludes that the only alternative to the existing intake structure that is not
wholly disproportionate to the environmental benefits gained is the potential
installation of strobe light/air bubble curtain technology: "Therefore, the
Department, has determined that study of a multi-sensory hybrid system, of which
strobe light/air bubble is a component of, is an available technology at a cost
which is not wholly disproportionate to the environmental benefits to be
realized."[89] Nonetheless, NJDEP,
however, does not require the installation of the strobe light/air bubble
system. Instead, NJDEP curiously considers the study of a multi-sensory system
part of the BTA determination.
PSE&G's
CBA approach, however, is flawed because it fails adequately to take into
account societal benefits. Economic theory states clearly that the appropriate
level of analysis for all costs and benefits estimates is the societal level.[90]
Thus, when considering the BTA, NJDEP should have considered
"external" environmental costs of failing to implement a particular
technology.[91]
Yet, as ESSA
concludes, PSE&G's CBA is fundamentally flawed because it does not
adequately reflect societal (so-called "external") costs and benefits.[92] A study of PSE&G's
economic analysis supports ESSA's finding that the estimated costs for
installing closed cycle cooling should be from the societal perspective.[93]
"Social welfare increases when private parties who use the public's
environmental goods and services face the full cost of their actions."[94]
Anything less than full cost leaves unpaid the full cost of producing
electricity, resulting in falsely low consumer costs and a depreciated
appreciation of the environmental resources used to produce the electricity.[95]
Cost estimates from the utility perspective are much higher than from the
societal perspective.[96]
Unfortunately,
cost/benefit data used by PSE&G in their CBA "are not useful for
conducting any test of proportionality between benefits and costs."[97]
To correctly determine the price of environmental resources, both the active and
passive component of the environment must be considered.[98]
On average, for every dollar of lost active use, $1.90 of passive loss occurs.[99]
The active component consists of actual use of the Delaware Estuary recreation
such as fishing, swimming and boating. The passive component consists of two
parts, option and existence values. Option value refers to an increase in use as
conditions change, i.e., even if someone does not currently use the estuary,
they may choose to use it (and may be willing to pay more to use it) as the
environmental quality of the estuary enhances. Existence values refer to the
amount that individuals are willing to pay to preserve the estuary out of a
sense of responsibility.
PSE&G's
cost-benefit analysis is inadequate because it limits the active component and
does not address the passive component.[100]
As discussed, to calculate the benefits of closed-cycle cooling, PSE&G
simply assigns a monetary value to commercial and recreational fish caught. PSE&G
underestimates the active benefit by ignoring the value realized by fishermen
who enjoy fishing even if they do not catch anything, or practice catch and
release.[101]
This is inconsistent with the CWA. Section 101 of the CWA states:
"It is the national goal that wherever attainable, an interim goal
of water quality which provides for the protection
and propagation of fish, shellfish, and wildlife and . . . for recreation in
and on the water should be achieved"[102];
§ 316(b) of the CWA states that intake structures shall "reflect the best
technology available for minimizing
adverse environmental impact."[103]
Additionally,
the true active benefit of saving the aquatic life in the Delaware Estuary is
the enhancement to such ecosystem services as detoxification and decomposition
of waste; maintenance of biodiversity; food; recreation; and aesthetic beauty
and intellectual stimulation that lift the human spirit.[104]
Yet PSE&G does not take these (and other) passive values into account
and therefore incorrectly devalues the benefit of alternate technologies, such
as closed cycle cooling.[105]
EPA has established that as the environmental benefits associated with a
technology increase, so too do the acceptable cost levels associated with a
proposed technology.[106]
Clearly, a principal priority in the implementation of the provisions of these
laws is the protection of aquatic life and associated passive values.
Next,
incorrectly inflated costs and underestimated benefits cause PSE&G's CBA
ratios used by PSE&G to be inaccurate and artificially high, which in turn
allows PSE&G to erroneously conclude that the cost of installing
closed-cycle cooling is wholly disproportionate to the environmental benefits.[107]
Last,
NJDEP inappropriately fails to consider to what extent PSE&G had reason to
believe that such costs would be required when the plant was constructed.
For instance, during the course of the Administrator's review of the RA's
ID in Brunswick II (requiring CP&L
to reduce its intake capacity by 96%), CP&L claimed that a requirement to
retrofit the Brunswick facility would be financially prohibitive.[108]
CP&L suggested that existing cooling systems should be subject to a
different standard than new cooling systems.[109]
In response, without passing on the merits of the issue, EPA stated:
I
suggest that it would be useful for the RA to include in his revised decision, .
. . findings concerning the timing of construction of the once-through cooling
system. Specifically, did CP&L have reason to believe cooling towers might
be required when it constructed its once-through system, and if so, what
alternatives were available to it?[110]
On
notice for thirty years (since enactment of §316(b) in 1972) that a design
change, or reduced capacity, or some other technology, may in the future be
required, PSE&G should not be rewarded for ignoring that information and
should instead be held responsible for technologies that were achievable, in the
least, at the time of construction, or were foreseeable.
II.
The permit does not Minimize Adverse Environmental
Impacts
A.
Salem's Intake Structure is Having an Adverse Environmental Impact
Section
316(b) is applicable to intake structures that are having an "adverse"
environmental impact.[111]
NJDEP considers "[t]he cornerstone of PSE&G's [permit] application [to
be] the [adverse] impact assessment,"[112]
and that "[m]any of the analyses including in [PSE&G's] application
feed into [the adverse impact] assessment."[113]
EPA defines
"adverse" to mean "unfavorable, harmful, difficult, or
detrimental," but not "irreversible" or
"irretrievable."[114]
EPA maintains that any detrimental
environmental impact is "adverse,"[115]
including those inflicted by impingement or entrainment,[116]
and that "fish losses of any given
quantity" must be considered and "minimized" as required by
the CWA.[117] EPA says that such
adverse impacts occur "whenever
there is entrainment or impingement damage as a result of the operation of a
specific [intake structure]."[118]
EPA uses both short-term and long-term criterion measurements to determine the
extent of an intake structure's impact on the environment, viewing both absolute
and percentage damage.[119]
Consistently, NJDEP defines "adverse environmental impact" to be the
death of any fish: "NJDEP and other states, such as New York, have
considered the death of any fish at or
through a cooling water intake structure to be an adverse [environmental] impact
. . ."[120]
There
is no question that Salem has an adverse impact; fish losses from Salem are
astounding. The U.S. Fish and Wildlife service estimates combined loss of
finfish and blue crab as a result of the operation of Salem to be 2.9 million
kilograms per year.[121]
This translates to approximately 5.5 million weakfish, striped bass, white
perch, blueback herring, spot, over 800 million bay anchovy, and other fish due
to impingement. In addition, 3,327.9 million fish are lost due to entrainment.[122]
Worse still, USF&WS believe these figures undercount annual aquatic losses from Salem. Indeed, Salem is
responsible for adult losses for herring, spot, and white perch [that] exceed
the average commercial or recreational fishery for the Delaware Estuary for the
period of 1975-1980 stretching from Trenton to the Atlantic Ocean, 120 miles
away.[123]
NJDEP
has agreed that "the [ongoing] adverse impacts of the SNGS are large and
indicate the potential for substantial long-term population and ecosystem level
impacts is great," [124] and that the "once-through cooling system
employed at Salem adversely affects the Delaware Estuary and threatens the
protection and propagation of balanced indigenous populations."[125]
Reading
"adverse" to "consist[ ] of the harm to populations and
communities, rather than individuals . . . .," however, PSE&G disputes
that Salem is having any adverse effect.
[126]
PSE&G maintains that "adverse" requires evidence of the intake
structure causing (1) imbalance in the indigenous populations of fish, and (2)
jeopardy to the sustainability of fish stocks of Representative Important
Species (RIS).[127]
Employing this standard, PSE&G concludes that "there is no evidence
that Salem's intake structure is causing or will cause an adverse environmental
impact," and that there is "no justification or legal basis for
requiring changes at the intake."[128]
PSE&G's
position is clearly absurd.[129]
As NJDEP remarks, "PSE&G and [NJDEP] do not agree regarding the
definition of 'adverse environmental impact,'"[130]
and has determined that "it is justified in requiring the pursuit of
alternate intake protection technologies, to further minimize the impacts at the
Salem Station."[131]
NJDEP's interpretation of the term "adverse" to constitute the loss of
"any fish" is consistent with EPA's interpretation, while PSE&G's
is flatly not. As the State of Delaware's consultant commented, environmental
harm is adverse long before it causes either an "imbalance" (whatever
that means) to indigenous populations (whatever that is), or
"jeopardizes" (read, extirpate or threaten) fish stocks of species PSE&G
believes are "important."[132]
ESSA rejects PSE&G's "population approach" and the notion that an
impact is not adverse unless is causes an "imbalance" to or
"jeopardizes" fish stocks on similar grounds: [133]
Each of the
three assessment endpoints chosen in the PSE&G Application (i.e., historical
trends, long term sustainability, fish community structure) are confounded by
changes in other stressors (i.e., water quality, changes in harvest).
Inferences made on these assessment endpoints are therefore dependent on
historical and future assumptions regarding other stressors.
By contrast, assessment endpoints such as fish
killed by entrainment and impingement and foregone production, are related
directly to the impacts of the power station intakes, are less confounded by
other factors, and require fewer assumptions about unknown parameters.
ESSA says
that although "assessing impacts on the populations is necessary, [ ] it is
not sufficient."[134]
In so doing, ESSA rejects PSE&G's application of EPA's Guidelines on Ecological Risk Assessment,[135]
concluding that PSE&G misapplies the Guidance.[136]
Indeed, EPA finds that the impact of Salem's intake structure is both adverse
and underestimated.[137]
Therefore,
there is no doubt that the intake structure at Salem is having an "adverse
environmental impact" that PSE&G must "minimize."
B.
The Permit Does Not Minimize Salem's Adverse Effects
Section
316(b) requires that the "design, location, … and capacity of a intake
structure reflect best technology for minimizing adverse environmental
impact."[138] The Permit, however,
does not minimize adverse effects.
EPA
interprets the term "minimize" to mean a reduction to the
"smallest possible amount or degree." [139]
The American Heritage Dictionary defines "minimize" as: "[t]o
reduce to the smallest possible amount, extent, size, or degree."[140]
Although this standard does not require elimination of all losses of organisms
due to plant operations,[141]
minimization of adverse environmental impact is required regardless of whether
the adverse environmental impact is significant; in EPA's words, "[a]ll
environmental harm should be avoided."[142]
A
decade ago, NJDEP agreed that "[t]he only means of reducing the risk of
long-term population and ecosystem level impacts from occurring, would be to
institute major reductions in entrainment and impingement losses … at
Salem." Yet to minimize impacts, the Permit requires PSE&G (1) to limit
is withdrawal amounts to no more than the most Salem could withdraw, (2)
continue to operate a fish return system, and (3) study various techniques for
reducing impingement and entrainment.[143]
These
measures clearly do not reduce impacts "to the smallest possible amount,
extent, size, or degree." Nor does it meet the requirement that "[a]ll
environmental harm should be avoided." First, most important, the Permit requires no reduction in entrainment losses. Entrainment losses
constitute 95 percent of the intake structure's impact. The Ristroph Screens,
the Fish Return System and Sound Study are designed only to reduce impingement..[144] In any event, PSE&G's
studies on entrainment contain biases in sampling procedures that necessitate
data adjustments.[145]
Second,
the Permit does not require different technologies to minimize impacts. The
design features contemplated by Section 316(b) revolve around technologies that
will reduce fish losses due to both entrainment and impingement effects.[146]
Presently, however, the technologies used by the PSE&G SNGS largely involve
antiquated fish screening and fish return devices designed only to prevent
debris from entering the cooling water system.[147]
These systems "are limited in their abilities to minimize adverse
aquatic impact."[148]
For example, the ("enchanced") Ristoph screens at Salem do little to
protect the mortality rate of weaker species such as bay anchovy and alewife.[149]
PSE&G's application contains “inconsistencies and points of confusion in
the documentation” as it relates to impingement.[150]
Yet fish return systems remain unchanged. The intake flow limitation is the same
flow limit that was specified in the July 20, 1994 permit (3,024 million gallons
per day) and is based on "the impingement/entrainment loss estimates
presenting in the March 4, 1993 PSE&G Renewal Application Supplement . .
." [151] Other
techniques are left for future study, but not implementation.
Third,
the Permit ignores the cumulative effects of the intake structures of other
facilities in the Delaware Estuary in determining how much
"minimizing" need occur. In Brunswick
I, the Office of Regional Counsel for EPA Region IV suggested that it is
impossible to determine the impact of a single intake structure on an estuary
and its aquatic life and, therefore, that location decisions should include
consideration of the existence of other intake structures in the area.[152]
The RA in Brunswick I stated:
"The environmental decision to be made by the regulatory agency is:
at what point do we draw the line at this powerplant, or the next, or the next?
It appears that Congress has answered this question by requiring best
technology to minimize impact at all
plants."[153]
Brunswick I suggests that,
although an intake structure may appear to have little impact on populations,
the cumulative effect of many intakes "must eventually spell doom for
important marine resources."[154]
Thus, it is evident that Section 316(b) requires consideration of the
impacts of all intake structures on a source waterbody. The Permit does not do
so.
BTA TO MINIMIZE ADVERSE ENVIRONMENTAL IMPACT
What reflects BTA minimizing adverse environmental impact "is an
issue of fact."[155] BTA is "that
technology which produces the greatest reductions in damage inflicted upon
aquatic resources by entrainment and impingement."[156]
EPA maintains that "[t]he reference
point for best technology is closed cycle cooling."[157]
The United States Fish and Wildlife Services maintains that "closed-cycle
cooling [is] the best technology available" for Salem.[158]
ESSA (like Versar before it), finds that "cooling towers . . . would
minimize entrainment/impingement events . . .," as required by the CWA.[159]
The 1989 expert report prepared by Versar found that "a closed cycle
cooling system would reduce Salem's cooling water intake requirements by more
than 95% and result in a concomitant 95% reduction of entrainment and
impingement losses, "[160]
and would reflect BTA at Salem.
Fact
is, the proven best technology available for "minimizing" adverse
environmental impact is closed-cycle cooling. "[T]he only real means to
reduce fish mortality is to significantly reduce intake water flow thru the
implementation or a recirculating cooling water system . . ."[161]
Closed-cycle cooling technologies
consist of dry cooling, hybrid (wet/dry) cooling, and wet evaporative cooling
towers. Hybrid and wet evaporative cooling towers require roughly the same
amount of water intake because "the dry sections of the hybrid cooling
towers are only operated to abate plumes, and the time frame for visible plumes
is relatively small given the total number of hours of operation."[162]
These technologies reduce water withdrawal, and therefore, impingement and
entrainment losses by as much as 95 percent.[163]
The
Commentators submit that dry cooling technology in particular
"reflects" BTA and thus Salem must minimize its impact commensurate
with dry cooling. Dry cooling requires the least amount of water intake and
reduces the adverse effects of impingement and entrainment, thereby minimizing
the adverse environmental impacts.[164] Dry cooling technology
is the most effective technology for minimizing adverse environmental impacts
because it requires the least amount of water intake.[165]
The water in dry cooling systems does not come in contact with the air, rather
it travels through closed pipes in the tower.[166]
Keeping the water out of contact with the air reduces the amount of
evaporation and consequently reduces the amount of water needed. Dry cooling
systems have been installed in power plants of varying type and sizes for over
60 years.[167]
"[I]nstallations of dry cooling technology in the U.S. have been growing
rapidly since the early 1980's."[168]
"There are at least 50 power plants with dry cooling systems in operation
in the U.S. today . . ."[169]
The amount of generating capacity using dry cooling systems in the U.S. has
increased by over 15.4 percent per year between 1985 and 1998.[170]
Conversely, the amount of generating capacity using evaporative cooling systems
has increased by only 0.2 percent per year over the same time period.[171]
Dry cooling technologies reduce water withdrawal, and therefore, impingement and
entrainment by as much as 99 percent. "[Salem]
currently uses 2.1 million gallons per minute to produce 2200 MW which is
equivalent to 954 gpm/MW. Assuming a 99.98% reduction in water usage with the
use of dry cooling, water usage could be decreased to just 420 gpm or 0.19 gpm/MW."[172]
A 99.98% reduction in water usage would result in a concomitant 99.98%
reduction in impingement and entrainment events at Salem.
Importantly,
the Commissioner of the New York Department of Environmental Conservation (NYDEC)
held that dry cooling is the most recent technology, uses markedly less water
than any other intake structure, and minimizes the environmental impacts.[173]
Unfortunately, NJDEP did not consider dry cooling technologies as BTA. This is
inconsistent with §316(b). As a consultant not paid by PSE&G determined: "[U]se
of dry cooling reduces environmental impact to the greatest degree. NJDEP must
consider a dry cooling water system BTA for Salem."[174]
PSE&G
does not address dry cooling either, and discounts the possibility of installing
any closed-cycle cooling at Salem because it "would be an extremely
complicated and expensive engineering construction project."[175]
PSE&G also contends that cooling towers, as opposed to the existing intake
structure, would cause a loss in power generating capacity.[176]
"Even minor changes to the cooling water supply (for example a temperature
increase a few degrees above design or a reduction in flow) can result in a
large decrease in the Station's ability to achieve its rated capacity."[177]
But whether
the installation of the cooling towers would be complicated to install or would
result in diminished power generation capacity is not determinative under CWA §
316(b). The statute does not render installation difficulties or potential
reductions in power generation determinative of whether compliance is required.
There is no waiver for difficult jobs; indeed, there is no waiver at all.
In contrast,
none of the technologies, considered as BTA for Salem, discussed in the next
part to this comment, "can be considered BTA for minimizing environmental
impacts at the [SNGS] because they fail to address entrainment losses."[178]
As discussed supra, “once-through
cooling, even with sub-littoral intakes and fish protection devices, does not
offer equivalent levels of environmental protection to that afforded by dry
cooling.”[179] Comparison of
impingement losses versus entrainment losses using PSE&G's 1978-1982 and
1998 data show that "[f]rom 1978-1982 entrainment accounted for 99.9% of
the fish lost . . . and in 1998 entrainment accounted for 99.8% of the fish
lost."[180] The comparison results
reflect the minimal impact of reducing impingement without reducing entrainment.
"Even if impingement can [be] reduced 100%, this would save only
0.2% of the fish lost at the [SNGS]."[181]
The technologies considered BTA in the draft permit reduce impingement but do
nothing to reduce entrainment. This is inconsistent with § 316(b).
IV. THE PERMIT DOES NOT REQUIRE THAT THE DESIGN, CAPACITY AND LOCATION OF SALEM’S INTAKE STRUCTURE REFLECT BTA FOR MINIMIZING ADVERSE ENVIRONMENTAL IMPACT
Rather than
require BTA that reflects closed-cycle cooling, NJDEP determined BTA for Salem
to be the "existing once-through cooling system in conjunction with an
intake flow limitation, an enhanced fish return system and the study and
potential implementation of a multi-sensory hybrid system. . ."[182]
Regardless, the design, capacity and location of Salem's intake structure do not
reflect BTA.
A.
The Design of Salem’s Intake Structure Does Not Reflect BTA
The intake
flow limitation in the 2000 draft permit is the same volume limit (3,024 million
gallons per day (MGD)) as specified in the July 20, 1994 BTA determination. The
figure represents no actual flow reduction whatsoever.
PSE&G discharge monitoring reports demonstrate this figure merely
matches (or exceeds) the maximum current operating capacity of Salem.[183]
Indeed, the intake flow limitation is based on “the impingement/entrainment
loss estimates presented in the March 4, 1993 PSE&G Renewal Application
Supplement . . .”[184]
NJDEP has retained the same intake flow limitation as it did in the 1994 permit
based on the fact that Salem has, on average, limited its intake flow amount to
2,968 MGD.[185]