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Ruling Protects Fish in Hudson

By Roger Witherspoon

The Journal News

Federal panel says nuclear plants must use `closed cooling'

A federal rule allowing new power plants to kill fish while using river water in their

cooling systems, as long as they also have restoration programs, was struck down

yesterday by the U.S. Court of Appeals as a violation of the Clean Water Act.

The three-judge panel in Albany ruled that the law requires power plants and

factories drawing more than 2 million gallons of water a day to use "closed-cycle

cooling" systems - which recycle water in a form of industrial radiator - because they

are the "best technology available."

Operators can use only screens and other devices to keep fish and fish eggs from

being pulled into the plants if those systems are 100 percent as effective as the

closed-cycle systems, which use little water from the rivers, the court said.

While remediation programs are "beneficial to the environment," the judges found

that such programs merely correct the environmental damage caused by the plants

and "do not minimize those impacts in the first place." As a result, the court said, the

U.S. Environmental Protection Agency had no authority to approve alternatives to

preventing the killing of river fish.

"This effectively marks the end of once-through cooling at new facilities," said

Alex Matthiessen, director of the environmental group Riverkeeper, which

successfully challenged the EPA rule. "We are extremely pleased that the court

prohibited the use of the restoration measures as a ruse to avoid installing state-of-

the-art technology."

The case involves regulations issued in January 2002 governing the cooling systems

to be used by new power plants and factories. A second EPA regulation governing

existing plants is to be issued Feb. 16. The draft version of that rule allows existing

plants to use restoration projects instead of requiring that they retrofit the plants for

closed-cycle cooling systems.

Among the plants along the lower Hudson River, yesterday's ruling would affect the

cooling system to be used at the proposed Bowline Point Steam Electric Generating

Station No. 3 in West Haverstraw.

But there are conflicting views as to how, or if, the court ruling would affect existing

power plants and the state's permit process. At stake are the cooling systems used by

the Indian Point nuclear power plants in Buchanan, and the existing Bowline 1 and 2

power plants, the Lovett coal-fired power plants in Stony Point, and the Roseton

Generating Station in Newburgh.

Entergy Nuclear Northeast, which owns Indian Point, received a draft permit from

the state Department of Environmental Conservation in November allowing the

plants to continue siphoning billions of gallons of Hudson River water and killing

millions of fish annually, as long as Entergy agrees not to seek an extension of its

licenses, which expire in about 10 years. Entergy, which has not said what it plans to

do, also has to contribute $24 million annually to a restoration fund.

"The court ruling does not affect the draft permit for the Indian Point plants," DEC

spokesman Mike Fraser said. "Indian Point is an existing facility. If it was a new

facility, we wouldn't need a restoration fund. We feel there will be a different

standard for existing plants, so this should not affect the draft permit for Indian


Entergy attorney Elise Zoli said the court's rejection of restoration programs "would

present problems for the DEC. They proposed a $24 million contribution to a

restoration fund. It is my assessment that it would not be permitted."

The court, Zoli said, recognized the difference between new plants, which can factor

the cost of new technologies into their building plans, and old plants, which could

face severe financial difficulties trying to upgrade to new technologies. Therefore,

she said, the state permit allowing Indian Point to continue using the Hudson should

not be affected.

Reed Super, senior attorney for Riverkeeper, which has been battling the EPA in

court over this issue since 1993, disagreed.

"The ruling means that the new regulations for existing plants, which EPA is about

to issue, cannot include restoration measures," he said. "We are asking EPA

Administrator Michael Leavitt not to issue such a rule as it would clearly violate the

Clean Water Act. If they do, we will have no choice but to challenge that rule as


EPA officials said they had not had time to assess the impact of the court's decision.

The state DEC, in an environmental impact study released in July, found that the

Bowline, Indian Point and Roseton plants kill billions of fish and plants annually in

their cooling operations. The agency monitored five of the more than 100 species of

fish in the Hudson. It found that more than 2 billion of those five species died

annually in the plants and millions more died of thermal shock when they

encountered the heated water poured back into the river.

Reach Roger Witherspoon at or 914-696-8566.


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