A new state policy aimed at requiring coastal power plants to stop using a continual flow of sea water for cooling and replacing it with a closed-cycle technology that would end the killing of tens of billions of fish and larvae fails to comply with new federal law because it would not begin to be enforced for as long as 14 years and has loopholes that might allow plants to continue using billions of gallons of water a year indefinitely.
Therefore, the policy may be challenged in court, which is apparently the only way to prevent the new and legally-flawed regulations from being implemented to the ongoing detriment of aquatic life and the marine economies along the California coast.
These are the conclusions of the the Coastal Alliance on Plant Expansion (CAPE), a nonprofit citizens group that has been monitoring present and future plans for the Morro Bay Power Plant for the past 10 years.
In the case of the Morro Bay plant, the policy lists Dec. 31, 2015 as the date by which the 55-year-old facility must stop using any significant amount of water from the Morro Bay National Estuary for cooling. That restriction would likely end the life of the plant because it is designed only to be cooled by a continual flow of sea water, called once-through cooling (OTC). However, the policy’s companion document also states that the plant is no longer needed to meet state energy needs, resulting in one of the most glaring contradictions in the policy.
CAPE has questioned why the plant should be allowed to use Estuary water for five more years if its electricity is not needed to ensure what is called grid reliability but has received no responses from the State Water Resources Control Board, which adopted the policy on May 4.
A Dynegy official, Randy Hickok, said the plant almost certainly will not be able to operate after 2015 under the adopted policy’s water use restriction. He told the Morro Bay City Council the same thing last fall. But he added last week that the company is exploring new water filtering technology to protect against absorbing aquatic life, which might allow the plant to still operate beyond 2015, although he said it seems very unlikely at this time.
The policy will not take effect until it is reviewed by the state Office of Administrative Law, which may take several months.
The OTC policy that was on the water board’s agenda on May 4 was strongly opposed by a wide array of organizations, including CAPE, the city of Morro Bay, the California Coastkeeper Alliance, the Sierra Club, the National Resources Defense Council and the Mills Legal Clinic at the Stanford Law School, plus an estimated 10,000 individuals, who filed comments with the board. Nearly all the groups argued that the policy on the May 4 agenda had been significantly weakened in enforcing federal requirements since an earlier version was made public last fall. And some contended the latest version failed to comply with federal law.
The law in question stems from the Riverkeeper II decision (January, 2007) by the United States Court of Appeals for the Second Circuit, which held that the U.S. Clean Water Act requires “best technology available” to be used to cool power plants and prohibits water from estuaries, bays, deltas, the ocean, lakes, rivers or steams. This decision’s ban on use of water for cooling came about 35 years after the Clean Water Act was amended to cover power plant cooling. The same court in 2004 had issued a virtually identical decision covering new power plants to be built.
As a consequence, the state water board five years ago began developing a statewide policy to implement the decisions. But from the very beginning, the draft versions fell short of what the court decisions required, in the opinion of state and local groups, which have been coordinated by the Coastkeeper Alliance. Twenty-one groups signed the Alliance’s comments opposing the policy that the board took up on May 4.
The groups argued that the draft policy was deeply flawed and would have failed to meet the Clean Water Act’s direction to phase out OTC impacts to coastal and delta ecosystems.
After the May 4 action, the Alliance issued a statement saying the Board adopted a final policy that “addressed many—though not all—of the most critical issues raised by the coalition” and that has “put California on track to phase out once-through cooling.” For example, the standard of feasibility for determining whether a plant owner could seek a waiver from complying with the policy was restored on May 4 after having been removed in the draft policy.
The adopted policy consists of two “tracks” that all plants must follow. All begin in Track 1 with individual compliance dates and requiring a 93% reduction in the flow rate of water taken into the plant. If owners can show compliance with Track 1 requirements is “infeasible,” the board can shift them to Track 2, which requires a 90% reduction in that rate or impacts on sea life.
The draft policy also had allowed mitigation–for example, payment of money or some kind of environmental improvement–as an alternative to complying with the policy. But that, too was removed. It also reduced the potential for continued extensions of deadlines to comply with the policy, the Alliance said.
Other members of the OTC coalition, except CAPE, however, have not made any comments on their assessment of whether the adopted policy adequately conforms to the law.
CAPE believes the final policy is legally deficient in these ways:
- Feasibility of compliance rests on stated criteria, which include “environmental impacts, local ordinances, regulations, etc.” These criteria are so broad and ill-defined that it would seem to be impossible to determine if waiver claims were legitimate.
- The water board has the authority to waive compliance dates, if the California Energy Commission, California Public Utilities Commission and the California Independent System Operator, which will act as advisors to the board on implementation of the OTC policy, find such waivers are needed for grid reliability. Therefore, compliance dates could be postponed indefinitely.
- A study (Electric Grid Reliability Impacts from Once-Through Cooling in California, April, 2008) by the board’s own expert consultant concluded that the plants will only be needed for a few more years and “given a sufficient time to react, the electric industry could likely tolerate and compensate for mass OTC plant retirement at relatively modest costs to the ratepayer” and with the “potential for significant benefits to the environment.”
- Inserted into the adopted policy is the statement that “cost is not a factor to be considered when determining feasibility under Track 1.” However, section G of the policy still states, “The State Water Board recognizes it is necessary to develop replacement infrastructure to maintain electric reliability in order to implement this Policy and in developing this policy considered costs, including costs of compliance, consistent with state and federal law.” This is contradictory. And cost of achieving best technology available to determine feasibility of compliance is not permissible under federal law.
- The policy significantly dilutes monitoring requirements that are essential to determine whether progress towards use of best technology available and ecosystem health is being made by power plants over any time period set for compliance.
- The policy fails to comply with new state climate change requirements being administered by the California Air Resources Board by allowing the old, polluting power plants to operate longer than necessary. In addition, the policy’s assessment of state needs for energy–resulting in allowing existing plants to operate longer than seems necessary–fails to take into account the rising availability and state funding support of alternative energy sources, such as solar power, which was recognized last year by the state Energy Commission as a feasible alternative to conventional power plants.