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Once Through Cooling


Once Through Cooling Court Finds Massive Power Plant Fish Kills Illegal
On January 25, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled that EPA cannot allow power plants to kill a trillion fish per year through their cooling water intakes. Cooling water intakes gulp in billions of gallons of river, lake and coastal water to cool power plant machinery. Along with the water, these intakes devour countless fish and fish larvae, devastating fish populations across the country.

San Diego Coastkeeper was one of seventeen plaintiffs, led by Hudson Riverkeeper and the Waterkeeper Alliance, on the litigation, which represents one of the most important environmental victories in the country over the last decade. SDCK became involved because three power plants in the San Diego region (South Bay in Chula Vista, Encina in Carlsbad and San Onofre) employ once-through cooling, using over three billion gallons of bay and ocean water daily.

In a major victory for environmentalists, fishermen and the public, the court found that EPA violated the law by placing the profits of power companies above the protection of America’s fisheries, defying the direct mandate of Congress in 1972 to EPA to stop these unnecessary impacts.

In a major victory for environmentalists and the six states that also challenged the rule on similar grounds (RI, NY, NJ, MA, DE, CT), the court found that EPA misinterpreted and exceeded the statutory authority granted by Congress under section 316(b) of the Act and/or violated the Administrative Procedure Act in six significant respects when it issued its “Phase II” cooling water rule:

  1. Contrary to EPA’s claims, the Court found that Clean Water Act section 316(b) prohibits EPA from basing its regulatory decisions on cost-benefit analysis. Further, EPA failed to sufficiently explain and justify its rejection of “closed-cycle cooling” as the national minimum technology for existing power plants. Because the record suggested that EPA may have based its decision on prohibited cost-benefit analysis, the court remanded EPA’s determination of best technology requirements to the agency to provide a reasoned explanation of its decision or a new determination based on permissible considerations (that is, based on what the best technology that can be “reasonably borne” by the industry and not on cost-benefit analysis).
  2. The court found that, if upon reconsidering the regulation, EPA chooses to establish performance standards rather than requiring particular technologies, it must require plants to choose the technology that achieves the greatest reduction of adverse impacts that is technologically possible.
  3. The court found – just as it had in 2004 when it partially remanded EPA’s Phase I cooling water rule for new facilities – that EPA violated the Act by allowing power plants to attempt to restock fish or improve habitat in so-called “restoration measures,” rather than employing technologies to prevent fish kills from occurring in the first place.
  4. The court found EPA pulled an improper “surprise switcheroo” by revealing specific power plant costs data for use in a site-specific variance only in the final rule, thereby depriving the public of an opportunity to consider and comment on the basis for these figures. It remanded the rule to EPA because of this violation of the Administrative Procedure Act and because the cost-cost variance was closely tied to the best technology determination it remanded to EPA (see point 1, above). The Court also found that EPA exceeded its authority by allowing site-specific cost-benefit variances.
  5. The Court found that EPA also violated the Administrative Procedure Act’s notice-and-comment requirements, pulling another surprise switcheroo, by modifying a provision in the final rule that would give plants a potentially indefinite period of time to meet the performance standards.
  6. The court found that EPA improperly modified the definition of new facility in the Phase I Rule via statements in the preamble to the Phase II Rule (thereby allowing substantially independent new facilities built on the site of an existing facility to be covered by the more lenient Phase II Rule, rather than the stricter Phase I Rule) without providing interested parties notice and an opportunity for comment. The court thus directed EPA to adhere to the definition in the Phase I Rule or to follow required notice-and-comment procedures if any future amendment is proposed.
The court also rejected six out of seven challenges brought by the power industry against the same regulation.

The case is Riverkeeper, Inc., et al. v. U.S. Environmental Protection Agency, No. 04-6692-ag(L) (2nd Cir. Jan. 25, 2007).

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History
Once-through cooling is an antiquated cooling system used by coastal power plants that pulls up to 16.7 billion gallons of seawater – and the life it contains – into the power plants each and every day in California. This daily assault on California’s valuable coastal environment causes serious harm, which each of the regulatory agencies responsible for attempting to manage these impacts has acknowledged. For example, the California Energy Commission testified before the State Water Board that “[o]nce-through cooling is a major, ongoing environmental issue with California power plants.”

The San Onofre nuclear power plant, which uses once-though cooling technology, destroyed over two hundred acres (59,000 kelp plants) of kelp forest. This, in turn, caused the displacement or death of thousands of individuals from numerous other species. In total it is estimated that the kelp fish population in the area has declined by 80%, all due to that single plant. With only 3.7 square miles of kelp forest along the entire California mainland coast, San Onofre destroyed almost 10% of the kelp forests along the coast. Additionally, there are tremendous impacts on local fish pollutions. A single fish kill due to entrainment in the San Onofre cooling system last August wiped out over five tons of anchovies.

Resolutions Adopted
On April 17, The State Lands Commission unanimously adopted a resolution that the agency will not approve leases for new facilities using “once-through cooling” technologies and discourages existing facilities from continuing to rely on the antiquated technology. Just three days later, The Ocean Protection Council adopted a resolution that encourages the State Water Resources Control Board, the agency responsible for implementing the federal Clean Water Act and state water quality law, to implement needed controls to eliminate the devastating impacts of once-though cooling technologies that are currently employed at 21 coastal plants in California. Combined, these facilities are permitted to suck in nearly 17 billion gallons of ocean and estuarine water every day, killing fish eggs, larvae, plankton and other marine life. In San Diego, the South Bay Power Plant, Encina and San Onofre all use once-through cooling. The State Lands Commission also passed a resolution encouraging the phase-out of copper-based bottom paints for boats.