Joint Appendix — Entergy Corp. v. Riverkeeper, Inc.
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33 9 & sqf¥l 14 208
Nos. 07588, 07-589, 07-597 sConsolda
In the ‘
Supreme Court of the Anited States
ENTERGY CorpP., Petitioner,
V.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
Respondents.
PSEG FossIL LLC AND PSEG NUCLEAR LLC,
Petitioners,
Vv.
RIVERKEEPER, INC., ET AL., Respondents.
UTILITY WATER ACT GROUP, Petitioner,
Vv.
RIVERKEEPER, INC., ET AL., Respondents.
On Writs Of Certiorari To The United States
Court Of Appeals For The Second Circuit
JOINT APPENDIX
RICHARD J. LAZARUS MAUREEN F.. MAHONEY
Counsel of Record Counsel of Record
GEORGETOWN UNIVERSITY PHILIPJ. PERRY
LAW CENTER J. SCOTT BALLENGER
600 NEW JERSEY AVE.. CASSANDRA S. BERNSTEIN
NW DREW C. ENSIGN
WASHINGTON, DC 20001 LATHAM & WATKINS LLP
(202) 662-9129 555 1ITH STREET, NW
lazarusr@georgetown.edu - SUITE 1000 s
Counsel for Respondents WASHINGTON, DC 20004
Riverkeeper, Inc., et al. (202) 637-2200
maureen. mahoney@lw.com
Counsel for Petitioners
PSEG Fossil LLC and
PSEG Nuclear LLC
Additional Counsel Listed on Inside Cover
a a
PETITIONS FOR CERTIORARI FILED NOVEMBER 2, 2007
CERTIORARI GRANTED APRIL 14, 2008
GREGORY G. GARRE
ACTING SOLICITOR
GENERAL
Counsel of Record
RONALD.J. TENPAS
DAVIDS. GUALTIERI
CYNTHIA J. MORRIS
JESSICA O’DONNELL
DEPARTMENT OF JUSTICE
WASHINGTON, DC 20530
(202) 51402217
SupremeCtBriefs
@USDOJ.gov
Counsel for Federal
Respondents
PATRICK C. LYNCH
ATTORNEY GENERAL OF
RHODE ISLAND
TRICIA O’HARE JEDELE
SPECIAL ASSISTANT
ATTORNEY GENERAL
Counsel of Record
150 SOUTH MAIN STREET
PROVIDEN®:. RI 02903
(401) 274-44°%, ExT. 2400
tjedele@riag.ri.gov
Counsel for State
Respondents
ELISE E. ZOLI
Counsel of Record
KEVIN P. MARTIN
ROBERT H. FITZGERALD
ALADDINE D. JOROFF
KEVIN P. PECHULIS
GOODWIN PROCTER LLP
53 STATE STREET
BOSTON, MA 02109
(617) 570-1000
EZoli@goodwinprocter.com
Counsel for Petitioner
Entergy Corp.
KRISTY A. N. BULLEIT
Counsel of Record
HUNTON & WILLIAMS LLP
1900 K STREET, NW
WASHINGTON, DC 20006
(202) 955-1547
kbulleit@hunton.com
Counsel for Petitioner
Utility Water Act Group
TABLE OF CONTENTS TO JOINT APPENDIX
United States Court of Appeals for the Second
Circuit, Relevant Docket Entries, Case
Nos. 04-6692-ag, 04-6693-ag CON, 04-6694-
ag CON, 04-9965-ag CON, 04-6696-ag CON,
04-6697-ag CON, 04-6698-ag CON, 04-6699-
PUTT icceccennenstsdiripanianedcentediiasonenanaiicaniiidaidiiaiasiiidiensses JA-1
41 Fed. Reg. 17,387 (Apr. 26, 1976) (preamble)..... JA-38
In re Brunswick Steam Electric Plant, EPA
8 | RR eee Ree J A-50
In re Public Service Co. of New Hampshire, et
al. (Seabrook Station, Units 1 and 2)
National Pollutant Discharge Elimination
System Permit, Case No. 76-7, 1 E.A.D. 332,
1977 WL 22370 (EAB June 10, 1977) ............... JA-63
Science Applications International Corp.,
Preliminary Regulatory Development
Section 316(b) of the Clean Water Act;
Background Paper Number 1: Legislative,
Regulatory, and Legal History of Section
316(b) and Information on Federal and
State Implementation of Cooling Water
Intake Structure Technology Requirements
(Apr. 4, 1994) (excerpts).........c.ccccrccscrsercssceosees JA-116
EPA, Economic and Engineering Analyses of
the Proposed §316(b) New Facility Rule,
Chapter 11: CWIS Impacts and Potential
Benefits, Table 11-1 (Aug. 2000)... JA-165
ii
Comments of the New Jersey Department of
Environmental Protection regarding
Proposed Rule on Cooling Water Intake
Structures (New Facilities) (Nov. 9, 2000).... JA-168
David K. Gordon & Reed W. Super,
Riverkeeper, et al., Subject Matter Code
10.11 (Comment ID 316bNFR.206.014),
Request for Comment: Dry Cooling-
Proposed Option (Jan. 2, 2002) ........ccseeeeeeeee J A-189
E-mail between Chief of the Permits Section,
Surface Water Quality Division, Michiy an
Department of Environmental Quality and
EPA regarding 316(b) Burden (Jan. 24,
Sernaee iaciesiesediadtchinidleeteidaipapeloecsbeticinsaiiabinibiombibiansiaes JA-209
Comment Letter of Frank Ackerman, Global
Development and Environment Institute
regarding Proposed Rule, RIN 2040-AD62,
Clean Water Act of §316(b) — National
Pollutant Discharge Elimination System —
Proposed Regulations for Cooling Water
Intake Structures at Phase II Existing
Facilities, EPA 1CR no. 2060.01 (Aug. 1,
Sar iccaicdecaitaniicidhaiandesaicdeshediacusialoanuneedenbeanpnpadecsdinnienintiads JA-211
Comments of California State Water Resources
Contro! Board regarding National Poilutant
Discharge Elimination System Proposed
Regulations to Establish Requirements for
Cooling Water Intake Structures at Phase
I] Existing Facilities (Proposed Rule) (Aug.
ir SEITE sndctssdeenistadabipindsidaadeantidliambinennaeiabintedeseabeianeiass JA-245
ill
Comments of Atlantic States Marine Fisheries
Commission on Cooling Water Intake
Structure (Existing Facilities: Phase II)
i I cA scnnisitcicidaceiielsineaisancininleenaibistibinricenen
Comments of Florida Department of Industrial
Wastewater on National Pollutant
Discharge Elimination System—Proposed
Regulations to Establish Requirements for
Cooling Water Intake Structures at Phase
II Existing Facilities (Aug. 7, 2002)...............
Comments of New York State Department of
Environmental Conservation Office of
Natural Resources Regarding the NPDES
Proposed Regulations to Establish
Requirements for Cooling Water Intake
Structures at Phase II Existing Facilities
Ns er SE sirtienaitoiocnsnsasenicnniinciinantntencnneuee
Comment Letter of Frank Ackerman and
Rachel Massey, Global Development and
Environment Institute, regarding Notice of
Data Availability, EPA 40 CFR Part 125,
Clean Water Act §316(b) - National
Pollutant Discharge Elimination System —
Proposed Regulations for Cooling Water
Intake Structures at Phase II Existing
Facilities; Notice of Data Availability,
March 19, 2003 (June 2, 2003) .............cccccceceeee
iv
Paul E. Reynolds, Hoosier Energy Rural Elect.
Co-op, Subject Matter Code 10.07.02
(Comment ID 316bEFR.006.003), RFC:
Appropriateness of “significantly greater”
6 Re er eee J A-308
Carl Michael Smith, Department of Energy,
Subject Matter Code 17.03.02 (Comment ID
316bEFR.010.027), RFC: EPA rationale to
not require closed-cycle (Mar. 29, 2004).........JA-311
Carl Michael Smith, Department of Energy,
Subject Matter Code 9.0 (Comment ID
316bEFR.010.057), Costs (Mar. 29, 2004)...... JA-314
Carl Michael Smith, Department of Energy,
Subject Matter Code 9.0 (Comment ID
316bEFR.010.101), Costs (Working Draft —
May 23, 2002) (Mar. 29, 2004) ........cccsseseseeeees JA-318
Christine Martin, Pennsylvania Department of
Environmental Protection, Subject Matter
Code 18.01 (Comment ID
316bEFR.011.004), RF” Definition of
“adverse environmenta: empact” (Mar. 29,
Elise N. Zoli, Goodwin Procter Counselors at
Law obo Entergy Corporation, Subject
Matter Code 9.0 (Comment ID
316bE FR.029.032), Costs (Mar. 29, 2004)...... JA-343
Vv
Maureen F. Vaskis & Mark F. Strickland, PSEG
Services Corp., Office of Environmental
Counsel, Subject Matter Code 9.04
(Comment ID 316bEFR.075.057), Cooling
system costs (e.g., dry, wet, recirculating)
Doug Dixon & Kent Zammit, EPRI, Subject
Matter Code 21.04 (Comment ID
316bEFR.306.116), Determination of
Compliance (Mar. 29, 2004) ........ccccceseeeeeeenees J A-352
Basil G. Constantelos, Midwest Generation
EME, LLC, Subject Matter Code 6.03
(Comment ID 316bEFR.317.013), Impacts
of CWIS on impaired waterbodies (Mar. 29,
ITEMS PREVIOUSLY REPRODUCED
In accordance with Supreme Court Rule 26.1, the
following items have been omitted in printing this
joint appendix because they appear on the following
pages of the appendix to the Petition for a Writ of
Certiorari filed by Entergy Corp. Case No. 07-588)
on November 2, 2007:
Opinion of the United States Court of Appeals
for the Second Circuit, Riverkeeper, Inc. v.
U.S. EPA, No. 04-6692-ag(L) and
consolidated cases (2d Cir. Jan. 25, 2007) 2.000000... la
vi
National Pollutant Discharge Elimination
System—Final Regulations to Establish
Requirements for Cooling Water Intake
Structures at Phase II Existing Facilities,
JA-1
RELEVANT DOCKET ENTRIES
United States Court of Appeals
for the Second Circuit
Lead Docket No : 04-6692 —ag, consolidated with
Nos. 04-6693-ag CON, 04-6694-ag CON, 04-6695-ag
CON, 04-6696-ag CON, 04-6697-ag CON, 04-6698-ag
CON, 04-6699-ag CON
Date Filed Docket Text
12/28/04 Case Docketed: Petition for review of
agency order on behalf of PETITIONER
Surfrider Foundation, filed. [Entry date
Jan 20 2005] [SM]
12/28/04 Copy of EPA decision and order, dated
7/9/04, filed. [Entry date Jan 21 2005]
[SM]
12/28/04 Papers from the Ninth Circuit Court
Appeals, received. [Entry date Jan 21
2005) [SM]
12/28/04 Certified copy of the Court of Appeals for
the Ninth Circuit docket entries FILED.
[Entry date Jan 21 2005] [SM]
1/21/05 Served copy of petition under cover letter
on respondent. [Entry date Jan 21 2005]
[SM]
2/8/05 PETITIONER State of Rhode Island,
Form C/A filed, with proof of service.
[Entry date Feb 14 2005] [SM]
2/8/05
2/14/05
2/16/05
2/24/05
3/1/05
3/1/05
4/1/05
JA-2
Non-Binding Statement of Issues,
received. [Entry date Feb 14 2005] [SM]
Scheduling order #1 filed. Record or
certified list due 7/18/2005. [Entry date
Feb 14 2005] [SM]
* * *
Order vacating scheduling order # 1, filed.
[Entry date Feb 16 2005] [SM]
** *
Letter, dated 2/23/05 received from Elise
N. Zoli informing the Court that [she] is
the lead attorney for Entergy
Corporation and for all documentation to
be sent to the attention of Elise Zoli.
[Entry date Feb 28 2005] [SM]
PETITIONER — Surfrider Foundation,
Form C/A received, with proof of service.
{Entry date Mar 2 2005] [SM]
Notice of appeal acknowledgment letter
from Reed Super received. |Entry date
Mar 2 2005] [SM]
Scheduling order #1 filed. Record or
certified list due 5/6/2005. Petitioners
brief due 5/13/2005 (10 Copies).
Respondents brief due 6/13/2005 (10
Copies). Ready week 7/25/2005. A pre-
argument conference is scheduled for
Friday, 4/22/05 at 3:00 p.m. (LJG - Staff
Counsel). [Entry date Apr 4 2005)
[SM]
4/1/05
4/4/05
4/25/05
5/12/05
5/12/05
JA-3
Pre-Argument Notice and Order from
Lisa Greenberg, Filed. Scheduled For:
Friday, 4/22/05 at 3:00 p.m. [Entry date
Apr 4 2005) [SM]
Petitioner Riverkeeper, Inc. motion to
modify briefing schedule, procedure and
word limit filed with proof of service.
[Entry date Apr 5 Z005| {SM|
Record on appeal index in lieu of record
filed. [Entry date May 11 2005) [SM)
Scheduling order #2 filed. Petitioners
brief service date 6/16/05, filing date
6/17/2005. Intervenor and Amicus Briefs
in support of Petitioners service date
7/7/05, filing dated 7/8/05. Respondent
EPA’s Consolidated Brief service date
10/21/05, filing dated 10/24/05.
Petitioner’s Supplemental Briefs or
Intervenor briefs and Amicus Briefs in
support of EPA (if any) service date
11/21/05, filing date 11/22/05. Petitioner’s
reply brief service date 12/19/05, filing
date 12/20/05. Deferred Appendix service
date 1/20/06, filing dated 1/23/06. Final
Briefs service date 2/22/05, filing dated
2/23/05. [Entry date May 12 2005] [SM]
kA
Order FILED GRANTING motion to
establish briefing schedule and to set
procedures for briefing by Petitioner
Riverkeeper, Inc., endorsed on motion
dated 6/16/2005. (For the Court: AMH,
6/16/05
7/6/05
7/6/05
7/6/05
7/6/05
7/6/05
JA-4
Motions Staff Attorney) (Before: PWH,
C.J.) [Entry date Jun 28 2005] (MAJ
Petitioner State of Rhode Island,
‘Petitioner State of Connecticut,
Petitioner State of Delaware, et al motion
for extension of briefing schedule filed
with proof of service. [Entry date Jun 23
2005] [MA]
Scheduling order #3 filed. Ready week
4/24/2006. Petitioners’ Opening Briefs due
7/6/2005. Deferred joint appendix due
2/24/2006. Final Briefs filed by 3/28/2006.
(See motion order filed this date, granting
motion for extension of time, in order to
see all the brief due dates.) [Entry date
Jul 6 2005) [MA]
PETITIONERS’ reply brief due January
24,2006. [Entry date Jul 6 2005] [MA]
Intervenor and Amicus Briefs in support
of Petitioner filed by 7/27/05. [Entry
date Jul 6 2005] [MA]
Intervenor and Amicus Briefs in support
of EPA filed by, December 13, 2005.
[Entry date Jul 6 2005] [MA]
Ak
Order FILED GRANTING motion for
extended time by Petitioner State of
Rhode Island, Petitioner State of
Connecticut, Petitioner State of
Delaware, Petitioner State of New
7
7/26/05
~]
/26/05
127/05
JA-5
Jersey, Petitioner State of New York,
endorsed on motion dated 6/16/2005. "IT
IS HEREBY ORDERED that the
motion to extend time to file brief (on
consent) is GRANTED. The new
scheduling order is as _ foiiows:
Petitioners Opening Briefs filed by, July
6, 2005. Intervenor and Amicus Briefs in
Support of Petitioner filed by, July 27,
2005. Respondent EPA's consolidated
Brief filed by, November 10, 2005.
Petitioner's Supplemental Briefs filed by,
December 18, 2005. Intervenor and
Amicus Briefs in support of EPA filed by,
December 13, 2005. Petitioner's Reply
Briefs filed by, January 24, 2006.
Deferred Appendix filed by, February
24, 2006. Final Briefs filed by, March 28,
2006. Appeal to be heard as early as the
week of April 24, 2006." (For the Court:
AMH, Motions Staff Attorney) (Before:
PWH, C.J.) [Entry date Jul 6 2005]
[MA]
* * *
Clean Air Task Force brief received.
[Entry date Sep 6 2005] [EJ]
MOVANT Clean Air Task Force, motion
to file as amicus, received. Problem — no
T-1080. [Entry date Sep 6 2005) [FJ]
Movant OMB Watch motion to file brief
as amicus curiae, filed with proof of
service. |Entry date Aug 11 2005] [DP]
8/17/05
9/9/05
10/18/05
11/14/05
11/14/05
JA-6
* *
Order FILED REFERRING motion to
file brief as amicus curiae by Movant
OMB Watch to the Panel hearing the
appeal. (TWY) [Entry date Aug 17 2005]
{DP}
* * *
Movant Healthlink, Movant Kentucky
Resources Council, et al motion to file
brief as amicus curiae, filed with proof of
service. [Entry date Oct 13 2005} [DP]
* * *
Order FILED REFERRING motion file
brief as amicus curiae to the merits panel
by Movant Clean Air Task Force, Movant
Healthlink, Movant Kentucky Resources
Council, Movant New England Clean
Water Action, Movant Ohio
Evironmental Council, Movant Ohio
Valley Environmental Council. (AH)
[Entry date Oct 18 2005] [DP]
* * *
Declaration of Jessica O Donnell in
support of the motion for leave to file
corrected certified index to the
administrative record, filed with proof of
service. [Entry date Dec 8 2005) |DP|
Declaration of Jessica O’Donnell in
support of the motion to strike portions of
briefs that rely upon material outside of
the administrative record, filed with
11/14/05
11/14/05
12/13/05
12/13/05
12/13/05
JA-7
proof of service. [Entry date Dec 8
2005) [DP]
Respondent United States
Environmental Protection Agency motion
for leave to correct administrative record
index, filed with proof of service. [Entry
date Dec 7 2005] [DP]
Respondent United States
Environmental Protection Agency motion
to strike portions of briefs that rely upon
material outside of the administrative
record, filed with proof of service.
[Entry date Dec 8 2005] [DP]
* * *
AMICUS CURIAE Texas Commission
on Environmental Quality, brief filed
with proof of service. [Entry date Dec
14 2005] [DP]
* * *
AMICUS CURIAE State of Alabama,
State of Indiana, State of Kentucky,
State of Nebraska, ET AL, brief filed
with proof of service. [Entry date Dec 14
2005] [DP]
* * *
Movant American Petroleum Institute
motion for leave to file a brief amicus
curiae, filed with proof of service. [Entry
date Dee 14 2005] [DP}
**
12/14/05
12/14/05
12/14/05
12/16/05
12/20/05
JA-8
Petitioner PSEG Fossil LLC, Petitioner
PSEG Nuclear LLC’ motion to
supplement the Appellate record on
appeal, filed with proof of service.
[Entry date Dec 15 2005] [DP]
Order FILED GRANTING motion for an
extension of time by Petitioner
Riverkeeper, Inc., Petitioner Surfrider
Foundation. (AH) Response to be filed by
December 20, 2005; EPA’s reply by
January 23, 2006. [Entry date Dec 14
2005] [DP]
Order FILED REFERRING motion to
strike portions of briefs that rely upon
material outside of the administrative
record to the merits panel by Respondent
Michael Leavitt, Respondent United
States Environmental Protection
Agency.(AH) [Entry date Dec 14 2005]
[DP]
* Ke x
Order FILED REFERRING motion to
supplement the appellate record on
appeal to the merits panel, by Petitioner
PSEG Fossil LLC, Petitioner PSEG
Nuclear LLC. (AH) [Entry date Dec 16
2005] [DP]
Petitioner, Entergy Corporation’s
Memorandum in opposition to EPA’s
motion to strike portions of the briefs
that rely upon material outside of the
12/21/05
12/21/05
12/21/05
12/21/05
12/21/05
12/21/05
JA-9
administrative record, filed with proof of
service. [Entry date Dee 27 2005] [DP]
* * *
State Petitioners’ brief in support of the
motion to supplement the administrative
record and for judicial notice, filed with
proof of service. [Entry date Dec 27
2005) [DP]
State Petitioners’ brief in opposition to
EPA’s motion to strike portions of State
Petitioners’ briefs, filed with proof of
service. [Entry date Dec 27 2005] [DP]
State Petitioners’ brief in opposition to
EPA’s motion for leave to file corrected
certified index of administrative record,
filed with proof of service. [Entry date
Dee 27 2005] [DP]
Environmental Petitioners’ opposition to
EPA’s motion for leave to file corrected
index to the record, filed with proof of
service. [Entry date Dec 27 2005] [DP]
Environmental Petitioners’ opposition to
EPA’s motion to strike portions of briefs
that rely on material outside of the
administrative record, filed with proof of
service. [Entry date Dec 27 2005] [DP]
Declaration of Reed W. Super in support
of the motion to supplement the record
an/or for judicial notice. [Entry date Dec
27 2005) [DP]
12/21/05
12/21/05
12/22/05
12/27/05
12/28/05
12/28/05
JA-10
Environmental Petitioners motion to
supplement record and/or for judicial
notice, filed with proof of service. [Entry
date Dee 27 2005] [DP}
Petitioner State of | Connecticut,
Petitioner State of Delaware, Petitioner
State of New Jersey, et al motion to
supplement appellate record and for
Judicial Notice, filed with proof of
service. [Entry date Dec 27 2005] |DP|
Petitioners, Utility Water Act Group,
Appalahian Power Company and Illinois
Energy Association opposing in part to
EPA’s motion to strike portions of briefs,
filed with proof of service. [Entry date
Dec 27 2005] [DP]
EPA’s opposition to motion’ of
Petitioner's PSEG FOSSIL LLC and
PSEG NUCLEAR LLC to supplement
the appellate record or, in the alternative,
for judicial notice, filed with proof of
service. [Entry date Dec 28 2005] [DP]
* * &
RESPONDENT United ~— States
Environmental Protection Agency,
Michael Leavitt, AMENDED certified
list of items comprising the record on
appeal filed. [Entry date Dec 29 2005]
[DP]
Order FILED GRANTING motion for
leave to file corrected administrative
12/30/05
1/20/06
1/23/06
JA-11
record index by Respondent United
States Environmental Protection
Agency. Before Hon. PWH, CuJ.,
endorsed by AH, Motions Staff Attorney,
dated 12/28/05. [Entry date Dec 28 2005]
[DP]
* *k *
IT IS HEREBY ORDERED that this
motion, and any future motions to
supplement the record and/or for judicial
notice, absent extraordinary
circumstances, are referred to the panel
that will decide the appeal. Before: Hon.
Peter W. Hall, C.J., endorsed by TWY,
Motions Staff Attorney, dated 12/30/05.
[Entry date Dec 30 2005] [DP]
* * *
IT IS HEREBY ORDERED that the
motion for an extension of time is
GRANTED to the following extent: The
petitioner's reply brief shall be filed on
or before February 24,2006; deferred
joint appendix due 3/24/2006, briefs in
final form shall be filed before April 18,
2006, extended ready week is 5/22/2006.
(AH) [Entry date Jan 20 2006] [DP]
Declaration of Jessica O’Donnell in
support of the motion for leave to file
combined reply brief and opposition to
cross-motions, filed with proof of service.
[Entry date Jan 25 2006] [DP]
1/23/06
1/27/06
1/30/06
1/30/06
1/30/06
JA-12
Respondent Michael Leavitt, Respondent
United States Environmental Protection
Agency motion for leave to file combined
reply brief and opposition to cross-
motions, filed with proof of service.
[Entry date Jan 25 2006] [DP]
Reply of Petitioners PS9EG FOSSIL LLC
and PSEG NUCLEAR LLC to EPA’s
Opposition to motion to supplement the
appellate record or, in the alternative, for
judicial notice, filed with proof of service.
[Entry date Jan 30 2006] [DP]
* * *
RESPONDENT United States
Environmental Protection Agency,
Michael Leavitt, brief in support of their
motion to strike (filed 11/14/05) and in
opposition to cross-motions to
supplement the record (filed on 12/21/05),
FILED. [Entry date Feb 9 2006) [DP]
Order FILED GRANTING motion for
leave to file combined reply brief and
opposition to cross-motions by
Respondent United States
Environmental Protection Agency,
Respondent Michael Leavitt. (AH)
[Entry date Jan 30 2006] [DP]
EPA’s opposition to Petitioners’ cross-
motions to supplement the record on
appeal, filed with proof of service.
[Entry date Jan 30 2006] [DP]
1/30/06
2/6/06
3/3/06
3/6/06
3/28/06
3/28/06
JA-13
Combined Reply in support of EPA’s
motion to strike portions of briefs that
rely upon material outside of the
Administrative record, strike document
filed with proof of service. [Entry date
Jan 30 2006] [DP]
Reply of Environmental Petitioners to
EPA’s opposition to motion to
supplement the record and/or for judicial
notice, filed with proof of service.
[Entry date Feb 9 2006] [DP]
* *k *
PETITIONER Entergy Corporation,
reply brief filed with proof of service.
[Entry date Mar 7 2006] [DP]
* * *
It is hereby Ordered that the motion for
an extension of time by Petitioner
Surfrider Foundation, Petitioner
Riverkeeper, Inc., is GRANTED to an
including March 3, 2006. (AH) Extended
Ready week is 5/22/2006. [Entry date
Mar 6 2006] [DP]
* * *
Joint appendix received. PETITIONER
Riverkeeper, Inc., Surfrider Foundation
(Vol7) [Entry date Mar 29 2006] |DP]
Petitioner PETITIONER Riverkeeper,
Inc., Surfrider Foundation, — special
3/28/06
3/28/06
3/28/06
4/6/06
4/11/06
4/19/06
4/19/06
4/19/06
JA-14
appendix received. (vol 2) [Entry date
Mar 29 2006] [DP]
PETITIONER Riverkeeper, Inc.,
Surfrider Foundation, supplemental joint
appendix received. (vol 2) [Entry date
Mar 29 2006] [DP]
PETITIONER Riverkeeper, Inc.,
Surfrider Foundation, joint appendix filed
w/pfs. (vol 7) [Entry date Mar 29 2006]
[DP]
Petitioner PETITIONER Riverkeeper,
Inc., Surfrider Foundation, — special
appendix filed (w/pfs) (vol 2) [Entry date
Mar 29 2006] [DP]
Stipulation to amend caption
RECEIVED. [Entry date Apr 6 2006]
[DP
Set for argument on 6/8/06. |Entry date
Apr 11 2006] [AV]
* * *
Environmental Petitioners 28(J) letter
FILED. [Entry date Apr 19 2006] [DP}
PETITIONER State of Connecticut,
State of Delaware, State of New Jersey,
State of New York, ET AL, brief in final
form with proof of service filed. Entry
date Apr 19 2006] [DP]
PETITIONER ~~ Appalachian Power
Company, Illinois Energy Association,
4/19/06
4/19/06
4/19/06
4/19/06
4/19/06
4/19/06
4/19/06
JA-15
brief in final form with proof of service
filed. [Entry date Apr 19 2006] [DP]
PETITIONER PSEC Fossil LLC,
PSEG Nuclear LLC, brief in final form
with proof of service filed. [Entry date
Apr 19 2006] [DP]
PETITIONER Entergy Corporation,
brief in final form with proof of service
filed. [Entry date Apr 19 2006] [DP]
PETITIONER Riverkeeper, Inc.,
Surfrider Foundation, brief in final form
with proof of service filed. [Entry date
Apr 19 2006] [DP]
PETITIONER PSEG Fossil LLC, PSEG
Nuclear LLC, supplemental brief (FF)
filed with proof of service. [Entry date
Apr 19 2006] [DP]
PETITIONER Entergy Corporation,
supplemental brief (FF) filed with proof
of service. [Entry date Apr 19 2006] | DP}
PETITIONER Appalachian Power
Company, Illinois Energy Association,
supplemental brief (FF) filed with proof
of service. [Entry date Apr 19 2006]
[DP]
PETITIONER State of Connecticut,
State of Delaware, State of New Jersey,
State of New York, ET AL,
supplemental brief (FF) filed with proof
4/19/06
4/19/06
4/19/06
4/19/06
4/19/06
4/19/06
4/19/06
JA-16
of service. [Entry date Apr 19 2006]
[DP}
PETITIONER Riverkeeper, Inc.,
Surfrider Foundation, supplemental brief
(FF) filed with proof of service. [Entry
date Apr 19 2006] [DP]
Notice of Errata regarding the Fina!
Brief for Respondents received. [Entry
date Apr 19 2006] [DP]
RESPONDENT United States
Environmental Protection Agency,
Michael Leavitt, brief in final form with
proof of service filed. [Entry date Apr 19
2006] [DP]
PETITIONER Riverkeeper, Inc.,
Surfrider Foundation, reply brief (FF)
filed with proof of service. [Entry date
Apr 19 2006] [DP]
PETITIONER Appalachian Power
Company, reply brief (FF) filed with
proof of service. [Entry date Apr 19
2006) [DP]
PETITIONER State of Connecticut,
State of Delaware, State of New Jersey,
State of New York, E'l AL, reply bricf
filed (FF) with proof of service. [Entry
date Apr 19 2006] [DP]
PETITIONER PSEG Fossi! LLC, PSEG
Nuclear LLC, reply brief filed with proof
4/19/06
4/19/06
4/19/06
5/1/06
5/3/06
JA-17
of service. [Entry date Apr 19 2006]
[DP]
PETITIONER Entergy Corporation,
reply brief filed with proof of service.
[Entry date Apr 19 2006] [DP]
Letter received from PSEG FOSSIL
LLC and PSEG nuclear LLC regarding
non-substantive changes to citation
designations in their final brief, dated
4/17/06. [Entry date Apr 19 2006] [DP]
State of Illinois brief in support of
Environmental and State Petitioners,
filed with proof of service. [Entry date
Apr 26 2006] [DP]
Letter received from Environmental
Petitioners requesting a _ 10-minute
expansion of the time allotted for oral
argument, dated 4/27/06. [Entry date
May 1 2006] [DP]
* * *
Letter received from James Christman in
response of Industry Petitioners Utility
Water Act Group, Appalachian Power
Company, and Illinois Energy
Association, Entergy Corp., PSEG Fossil
LLC and PSEG Nuclear LLC to the
request for additional time for oral
argument from Riverkeeper, Inc, dated
5/2/06. [Entry date May 3 2006] | DP]
5/4/06
5/5/06
5/5/06
5/11/06
5/11/06
JA-18
ENVIRONMENTAL PETITIONERS,
28(J) letter FILED, dated 5/3/06. [Entry
date May 5 2006] [DP]
Letter received from State Petitioners
requesting that the Court grant State
Petitioners a proportionally equal share
of time for oral argument, dated 5/3/06.
[Entry date May 8 2006] [DP]
Letter received from Respondent, stating
that EPA does not take any position as to
whether the Court should grant any
pending requests for additional oral
argument time. If the Court were to
deny all of the Petitioner’s requests, EPA
asks the Court to expand EPA’s time for
oral argument so the EPA’s time is equal
to the Petitioner’s total time under the
current allotment. On the other hand, if
the Court grants Petitioner’s requests for
more oral argument time, EPA asks the
Court to give EPA the same total of
minutes for argument as the expanded
total number of minutes granted to
Petitioners. Letter dated 5/4/06. [Entry
date May 11 2006] [DP]
* * *
Non-dispositive stipulation to amend
caption, FILED. [Entry date May 11
2006] [AV]
The CAPTION PAGE for this appeal has
been AMENDED as _ pers stipulation
5°%3/06
6/1/06
6/5/06
6/8/06
JA-19
dated 5/11/06. [Entry date May 11 2006]
[DP]
Order filed stating: “The panel will
reserve decision on all motions to strike
portions of the record or briefs, or to
supplement the record, until such time as
we issue our decision on the merits of the
ease. FOR THE COURT: Roseann B.
MacKechnie, Clerk of Court.". [Entry
date May 23 2006] [PC]
* KK
Letter received from Karl Lytz and
Kristy Bulleit, attorneys for Utility
Water Act Group, Appalachian Power
Company, Illiniois Energy Association,
PSEG Fossil LLC and PSEG Nuclear
LLC request that they each be allowed to
reserve eight minutes of argument time,
dated 5/31/06. [Entry date Jun 2 2006]
[DP]
Notice to counsel regarding letter dated
May 31, 2006 by Kristy A.N. Bulleit,
counself for UWAG, requesting that each
party be allowed to reserve eight minutes
of argument time, has been DENIED.
[Entry date Jun 5 2006] [AG]
AAA
Case heard before: STRAUB,
SOTOMAYOR, HALL, C.JJ. [Entry
date Jun 8 2006] [SC]
xk * *
6/23/06
6/26/06
6/26/06
8/1/06
8/14/06
8/14/06
1/25/07
JA-20
PETITIONER Entergy Corporation,
28(J) letter FILED. [Entry date Jun 26
2006] [DP]
ENVIRONMENTAL PETITIONERS,
28(J) letter FILED. [Entry date Jun 27
2006] [DP]
RESPONDENT United States
Environmental Protection Agency,
Michael Leavitt, post argument letter
brief filed, dated 6/23/06. [Entry date
Jun 27 2006] [DP]
* * *
Letter received from Petitioner, State of
Rhode Island, dated 7/31/06. [Entry date
Aug 2 2006] |DP]
Letter received from Cynthia Morris,
Counsel for EPA, requesting for the
Court to disregard the States’ letter in
its entirety, dated 8/11/06. [Entry date
Aug 14 2006] [DP]
Letter received from James Christman,
counsel for UWAG, Appalachian Power
Company, and Illinois Energy
Association, requesting that the Court
disregard the States’ letter, dated 8/11/06.
{Entry date Aug 14 2006] [DP]
Notice to counsel in re: Opinion filed on
1/25/2007. {Entry date Jan 25 2007]
YS}
1/25/07
1/25/07
2/5/07
2/14/07
2/14/07
2/28/07
JA-21
Judgment filed. [Entry date Jan 31 2007}
[YS]
Petitions are GRANTED in part and
DENIED in part and DISMISSED as to
one aspect of the petitions for lack of
jurisdiction because their is no final
agency action to review, by published
signed opinion filed. (SS) [Entry date Jul
25 2007] [LY]
Letter received from Reed Super,
Counsel for Environmental Petitioners
advising the court of the typographical
errors in the decision issued on
01/25/2007. [Entry date Feb 6 2007]
[YS]
* * *
Errata sheet re: Page 2195 Line 2, 4,
Page 8215 First full paragraph line 3,
Page 8224 first full paragraph, line 1,
Page 8249 first paragraph, line 16, filed.
[Entry date Feb 14 2007] [YS]
Notice to counsel in re: Errata sheet filed.
[Entry date Feb 14 2007] | YS]
Respondent Michael Leavitt, Respondent
United States Environmental Protection
Agency motion extended time to file
Petition for Rehearing/ Rehearing En
Banc, filed with proof of service. [Entry
date Mar 5 2007] [YS]
3/9/07
3/13/07
3/14/07
3/14/07
3/14/07
JA-22
Petitioner Riverkeeper, Inc., Petitioner
Surfrider Foundation motion for briefing
schedule for attorney’s fee Application
filed with proof of service. [Entry date
Mar 9 2007] [MR]
* * *
Order FILED GRANTING motion
extended time by Respondent Michael
Leavitt, Respondent United States
Environmental Protection Agency, to file
petition for rehearing/rehearing en banc
to 04/26/2007, endorsed on motion dated
3/9/2007. (Before Hon. CJS., SS., PWH..,
C.J. by AH) [Entry date Mar 13 2007]
[YS]
Order FILED GRANTING motion file
brief as amicus curiae by Movant OMB
Watch, in light of Opinion filed. [Entry
date Mar 14 2007] [YS]
Order F{LED GRANTING motion file
brief as amicus curiae by Movant
Healthlink, Movant Clean Air Task
Force, Movant Kentucky Resources
Council, Movant New England Clean
Water Action, Movant Ohio
Environmental Council, Movant Ohio
Valley Environmental Council, in light of
opinion filed. [Entry date Mar 14 2007]
fYS]
Order FILED GRANTING motion file
brief as amicus curiae by Movant
American Petroleum Institute, in light of
3/15/07
3/15/07
3/15/07
3/15/07
JA-23
opinion filed. [Entry date Mar 14 2007]
YS]
Order FILED DENYING motion strike
document by Respondent Michael
Leavitt, Respondent United States
Environmental Protection Agency, as
Moot in light of Opinion filed. [Entry date
Mar 15 2007] LYS]
Order FILED DENYING motion
supplement record on appeal _ by
Petitioner PSEG Fossil LLC, Petitioner
PSEG Nuclear. LLCM, as MOOT in light
of Opinion filed. [Entry date Mar 15
2007) [YS]
Order FILED DENYING motion
supplement record on appeal by
Petitioner American Littoral Society, as
MOOT in light of Opinion filed. [Entry
date Mar 15 2007] [YS]
Order FILED DENYING motion
supplement record on _ appeal by
Petitioner State of New Jersey,
Petitioner State of New York, Petitioner
State of Connecticut, Petitioner
American Littoral Society, Petitioner
State of Rhode Island, Petitioner State
of Delaware, Petitioner Commonwealth
of Massachusetts, as MOOT in light of
Opinion filed. [Entry date Mar 15 2007]
[YS]
3/19/07
4/17/07
4/20/07
4/24/07
5/14/07
JA-24
Order FILED GRANTING motion to set
briefing schedule for attorneys fees by
Petitioner Riverkeeper, Inc., Petitioner
Surfrider Foundation. Schedule
requested will be set after rehearing
deadlines have expired, endorsed on
motion dated 3/9/2007. (Before Hon. CJS.,
SS., PWH., C.J. by AH) [Entry date Mar
19 2007] [YS]
Petitioner Appalachian Power Company
for extension of time until May 14, 2007,
to file Petition for Rehearing and
Rehearing En Banc, filed with proof of
service. [Entry date Apr 17 2007] [YS]
Notice from Supreme Court granting
FILERS extension of time in which to
file a writ of certiorari received to and
including 05/25/2007. [Entry date Apr 20
2007] [YS]
* * *
Order FILED GRANTING motion
extended time by Petitioner Appalachian
Power Company, endorsed on motion
dated 4/17/2007. Extended Petition for
rehearing is 5/14/2007. (Before Hon.
CJS., SS., PWH., C.J. by AH) [Entry
date Apr 24 2007] [YS]
Petitioner, Utility Water Act Group,
PSEG Fossil LLC, Petitioner PSEG
Nuclear LLC motion Petition for
rehearing and petition for rehearing en
5/14/07
7/5/07
7/5/07
7/17/07
7/24/07
7/24/07
JA-25
banc filed with proof of service. [Entry
date May 15 2007] [YS]
Petitioner Entergy Corporation Petition
for rehearing and petition for rehearing
en banc filed with proof of service.
[Entry date May 15 2007] [YS]
* * *
Order FILED DENYING Petition for
rehearing Docket as of June 02, 2008
11:08 am and petition for rehearing en
bane by Petitioner PSEG Fossil LLC,
Petitioner PSEG Nuclear LLC. [Entry
date Jul 5 2007) [YS]
Order FILED DENYING Petition for
rehearing and petition for rehearing en
bane by Petitioner Entergy Corporation.
[Entry date Jul 5 2007] [YS]
Judgment MANDATE ISSUED.
CLOSED [Entry date Jul 17 2007] [YS]
Letter sent to district court recalling
mandate. [Entry date Jul 24 2007] [YS]
x *
Order filed stating: Petitioner’s motion
for attorneys’ fees shall be filed on or
before January 5, 2008; the respondent
shall file its opposition on or before
February 5, 2008; petitioner’s reply
papers shall be filed on or before
February 26, 2008. (By AH) [Entry date
Jul 24 2007] [YS]
9/27/07
11/8/07
11/9/07
11/9/07
11/15/07
11/27/07
JA-26
* * *
Notice from Supreme Court granting
extension of time in which to file a writ of
certiorari received to and_ including
November 2, 2007. [Entry date Sep 28
2007] [YS]
* * *
Notice of filing petition for Utility Water
Act Group dated 11/02/2007 _ filed.
Supreme Court #: 07-597. [Entry date
Nov 92007] [YS]
Notice of filing petition for
PETITIONER PSEG Fossil LLC,
PSEG Nuclear LLC, dated 11/02/2007
filed. Supreme Court #: 07-589. [Entry
date Nov 9 2007] [YS]
Notice of filing petition for
PETITIONER Entergy Corporation,
dated 11/02/2007 filed. Supreme Court #
07-588. [Entry date Nov 13 2007] [YS]
Petitioner Riverkeeper, Inc., Petitioner
Surfrider Foundation motion for
extension of time to file attorneys’ fees
with 30 days for response and 21 days for
reply and continuing to defer issuance of
mandate until fee application is resolved,
filed with proof of service. |Entry date
Nov 16 2007] [YS]
Notice to counsel regarding Court’s
Order dated 11/27/07 granting the
Petitioner’s motion for an extension of
11/27/07
4/17/08
4/17/08
4/18/08
JA-27
time to file motion for Attorney’s fees and
to defer the issuance of the mandate until
dee application is resolved. [Entry date
Nov 27 2007] [JR]
Order FILED GRANTING motion an
extension of time to file motion for
Attorney's fees & to defer issuance of
mandate by Petitioner Riverkeeper, Inc.,
Petitioner Surfrider Foundation,
endorsed on motion dated 11/15/2007. IT
IS HEREBY ORDERED that
Petitioner's motion for extension of time
to file motion for Attorney's fees and to
defer issuance of mandate until fee
application is resolved is GRANTED.
Before: CJS SS & PWH, CJJ. (JP)
[Entry date Nov 27 2007] [JR]
* * *
Letter dated 04/17/2008 from the
Supreme Court advising of order
GRANTING petition for writ of
certiorari by PETITIONERS, filed.
(Supreme Court # 07-597 ) [Entry date
Apr 18 2008} [YS]
Writ of Certiorari GRANTED. [Entry
date Apr 18 2008] [YS]
Reinstatement filed in light of Supreme
Court Letter received Granting Writ of
Cert, FILED. Reinstatement Code: M.
[Entry date Apr 18 2008] [YS]
5/14/08
5/27/08
J A-28
Petitioner Riverkeeper, Inc., Petitioner
Surfrider Foundation motion for 1. new
briefing schedule for motion for award of
attorneys’ fees and costs pursuant to
Clean Water Act Sec 509(b)(3) and 2. hold
of mandate until fee application is
resolved. Fee motion would be due 120
days after Supreme Court decision in this
case with 30 days for opposition and 21
days for reply, filed with proof of service.
[Entry date May 15 2008] [YS]
* * *
IT IS HEREBY ORDERED | that
Petitioner’s motion for extension of time
and for an award of attorneys fees/costs
until 120 days after the Supreme Court
issues its decision: and to defer issuance
of mandate until fee application is
resolved is GRANTED. (Before Hon.
CJS., SS., PWH., CJJ., by JP) [Entry
date May 27 2008] [YS]
* * *
JA-29
United States Court of Appeals
for the Second Circuit
Non-Duplicative Relevant Docket Entries for
Docket No. 04-6693-ag
Date Filed Docket Text
12/28/04 Case Docketed: Petition for review of
agency order on behalf of PETITIONER
Commonwealth of Massachusetts, State
of Connecticut, State of Delaware, State
of New Jersey, ET AL, filed. [Entry
date Jan 21 2005] [SM]
* * *
12/28/04 Papers from the First Circuit Court of
Appeals, received. [Entry date Jan 21
2005] [SM]
12/28/04 Certified copy of the Court of Appeals for
the First Circuit docket entries FILED.
[Entry date Jan 21 2005] [SM]
* * *
2/4/05 Notice of appeal acknowledgment letter
from FILERS State of Delaware
received. [Entry date Feb 92005] [SM]
2/8/05 Notice of appeal acknowledgment letter
from FILERS State of Rhode Island
received. [Entry date Feb 14 2005] [SM]
2/8/05 Notice of appeal acknowledgment letter
from FILERS Commonwealth © of
2/8/05
2/8/05
JA-30
Massachusetts received. [Entry date
Feb 14 2005] [SM]
Notice of appeal acknowledgment letter
from FILERS The State of Connecticut
received. [Entry date Feb 14 2005] [SM]
Notice of appeal acknowledgment letter
from FILERS The State of New Jersey
received. [Entry date Feb 14 2005] [SM]
* * *
JA-31
United States Court of Appeals
for the Second Circuit
Non-Duplicative Relevant Docket Entries tor
Docket No. 04-6694-ag
Date Filed Docket Text
12/28/04 Case Docketed: Petition for review of
agency order on behalf of PETITIONER
Appalachian Power Company, filed.
[Entry date Jan 21 2005] [SM]
* * *
12/28/04 Papers from United States Court of
Appeals for the Fourth Circuit, received.
[Entry date Jan 21 2005] [SM]
12/28/04 Certified copy of the United States Court
of Appeals for the Fourth Circuit docket
entries FILED. [Entry date Jan 21
2005] [SM]
* * *
2/18/05 Notice of appeal acknowledgment letter
from James N. Christman, attorney for
Appalachian Power Company FILERS
received. [Entry date Feb 22 2005] [SM]
2/18/05 PETITIONER ~~ Appalachian Power
Company, Form C/A filed, with proof of
service. [Entry date Feb 22 2005] [SM]
* * *
JA-32
United States Court of Appeals
for the Second Circuit
Non-Duplicative Relevant Docket Entries for
Docket No. 04-6695-ag
Date Filed Docket Text
12/28/04 Case Docketed: Petition for review of
agency order on behalf of PETITIONER
Utility Water Act Group, filed. [Entry
date Jan 21 2005] [SM]
* * +
12/28/04 Papers from the United States Court of
Appeals for the Second Circuit, received.
[Entry date Jan 21 2005] |SM|
12/28/04 Certified copy of the Court of Appeals for
the Second Circuit docket entries
FILED. [Entry date Jan 21 2005] [SM]
* * *
2/14/05 Notice to counsel re: Amended Caption
and docket sheet. [Entry date Feb 14
2005] [SM]
3/8/05 Notice of appeal acknowledgment letter
from Kristy A.N. Bulleit received.
[Entry date Mar 10 2005] [SM]
3/8/05 PETITIONER Utility Water Act Group,
k'orm C/A received, with proof of service.
[Entry date Mar i0 2005] [SM]
3/8/05
JA-33
Letter, dated 3/4/05 received from Kristy
A.N. Bulleit stating the enclosure of the
Acknowledgement letter and Form C-A.
[Entry date Mar 10 2005] (SM]
* * *
JA-34
United States Court of Appeals
for the Second Circuit
Non-Duplicative Relevant Docket Entries for
Docket No. 04-6696-ag
Date Filed Docket Text
12/28/04 Case Docketed: Petition for review of
agency order on behalf of PETITIONER
PSEG Fossil LLC, filed. [Entry date
Jan 21 2005] [SM]
* * *
12/28/04 Papers from The United States Court of
Appeals for the District of Columbia
Circuit, received. [Entry date Jan 21
2005] [SM]
12/28/04 Certified copy of the United States Court
of Appeals for the District of Columbia
Circuit docket entries FILED. [Entry
date Jan 21 2005) [SM]
* * *
2/16/05 Notice of appeal acknowledgment letter
from PSEG Fossil LLC and PSEG
Nuclear LLC FILERS received. [Entry
date Feb 22 2005) [SM]
2/16/05 PETITIONER PSEG Fossil LLC,
PSEG Nuclear LLC, Form C/A filed,
with proof of service. [Fntry date Feb 22
2005] [SM]
JA-35
United States Court of Appeals
for the Second Circuit
Non-Duplicative Relevant Docket Entries for
Docket No. 04-6697-ag
Date Filed Docket Text
12/28/94 Case Docketed: Petition for review of
agency order on behalf of PETITIONER
Entergy Corporation, filed. [Entry date
Jan 21 2005] [SM]
* * *
12/28/94 Papers from the United States Court of
Appeals for the Fifth Circuit, received.
[Entry date Jan 21 2005] [SM]
12/28/04 Certified copy of the United States Court
of Appeals for the Fifth Circuit docket
entries FILED. [Entry date Jan 21
2005] [SM]
x *K *
2/15/05 Notice of appeal acknowledgment letter
from Entergy Corperation FILERS
received. [Entry date Feb 22 2005] [SM]
2/15/05 PETITIONER’ Entergy Corporation,
Form C/A filed, with proof of service.
[Entry date Feb 22 2005] [SM]
* * *
JA-36
United States Court of Appeals
for the Second Circuit
Non-Duplicative Relevant Docket Entries for
Docket No. 04-6698-ag
Date Filed Docket Text
12/28/04 Case Docketed: Petition for review of
agency order on behalf of PETITIONER
Illinois Energy Association, filed. [Entry
date Jan 21 2005) [SM]
* * *
12/28/04 Papers from the United States Court of
Appeals for the Seventh Circuit
PETITIONER, received. [Entry date
Jan 21 2005} [SM]
12/28/04 Certified copy of the United States Court
of Appeals for the Seventh Circuit docket
entries FILED. {Entry date Jan 21
2005] [SM]
2/18/05 Notice of appeal acknowledgment letter
from James N. Christman, attorney for
Illinois Energy Association, FILERS
received. [Entry date Feb 22 2005] [SM]
2/18/05 PETITIONER Illinois Energy
Association, Form C/A filed, with proof of
service. [Entry date Feb 22 2005] [SM]
ss ££
JA-37
United States Court of Appeals
for the Second Circuit
Non-Duplicative Relevant Docket Entries for
Docket No. 04-6699-ag
Date Filed Docket Text
12/28/04 Case Docketed: Petition for review of
agency order on behalf of PETITIONER
Riverkeeper, Inc., filed. [Entry date Jan
21 2005] {SM]
* *k *
12/28/04 Papers from The United States Court of
Appeals for the Second Circuit, received.
[Entry date Jan 21 2005] [SM]
12/28/04 Certified copy of the United States Court
of Appeals for the Second Circuit docket
entries FILED. [Entry date Jan 21
2005] [SM]
12/28/04 Note PRIOR case number: 04-4059-ag.
[Entry date Jan 26 2005 | [SM]
* * *
3/1/05 Notice of appeal acknowledgment letter
from Reed Super FILERS received.
[Entry date Mar 2 2005] [SM]
* * *
JA-38
41 FEDERAL REGISTER 17,387 (April 26, 1976)
Title 40—Protection of the Environment
CHAPTER 1—ENVIRONMENTAL PROTECTION
AGENCY
[FRL 528-6]
PART 401—GENERAL PROVISIONS
PART 402—BEST TECHNOLOGY AVAILABLE
FOR THE LOCATION, DESIGN, CONSTRUCTION,
AND CAPACITY OF COOLING WATER INTAKE
STRUCTURES FOR MINIMIZING ADVERSE
ENVIRONMENTAL IMPACT
On December 13, 1973 notice was published in the
FEDERAL REGISTER (38 FR 34410), that the
Environmental Protection Agency (EPA or Agency)
was proposing regulations concerning determinations
to insure that the location, design, construction, and
capacity of cooling water intake structures reflect the
best technology available for minimizing adverse
environmental impact.
The purpose of this notice is to establish final
regulations regarding cooling water intake structures
by amending 40 CFR Chapter I, Subchapter N, Part
401 and by adding a new Part 402. This final
rulemaking is promulgated pursuant to sections 301,
306, 316(b) and 501(a) of the Federal Water Pollution
Control Act, as amended, (the Act); 338 U.S.C. 1311,
1316, 1326(b) and 1261(a); 86 Stat. 816 et seq.; Pub.L.
92-500.
JA-39
Section 316(b) of the Act requires that “any
standard established pursuant t» section 301 or section
306 of this Act and applicable to a point source shall
require that the location, design, construction, and
capacity of cooling water intake structures reflect the
best technology available for minimizing adverse
environmental impact.”
The regulations set forth below amend 40 CFR Part
401 (General Provisions) and establish a new part 402.
The General Provisions set forth in Part 401 were
published on February 4, 1974 (39 FR 4532).
Section 401.14, which is added to Part 401 by these
regulations, provides that the location, design,
construction and capacity of cooling water intake
structures for any point source for which a standard is
established pursuant to section 301 or 306 shall reflect
the best technology available for minimizing adverse
environmental impact in accordance with the
provisions of Part 402.
Section 402.10 establishes the applicability of the
provisions of Part 402. Section 4.11 provides
definitions for several of the significant statutory terms
which appear in Section 316(b) of the Act.
Section 402.12 provides that the information
contained in the Development Document accompanying
these regulations is to be used in determining
compliance with the statutory standard.
The reguiations as proposed were supported by a
document entitied “Development Document for
Proposed Best Technology Available for Minimizing
Adverse Environmental Impact of Cooling Water
Intake Structures.” (December, 1973). This document
was made available to the public and circulated to
JA-40
interested persons at approximately the time of
publication of the notice of proposed rulemaking.
Interested persons were invited to participate in
the rulemaking by submitting written comments
within 30 days from the date of publication. Because of
delays in the printing of the supporting Development
Document beyond the Agency’s control, the period for
public comment was extended an additional 90 days in
order to afford a full opportunity to interested parties
to participate fully in the rulemaking process (389 FR
4487). Prior public participaticn in the form of solicited
comments and responses from the States, Federal
agencies, and other interested parties were described
in the preamble to the proposed regulation. The EPA
has considered carefully all of the comments received
and a discussion of these comments with the Agency’s
response thereto follows.
(a) Summary of' Major Comments.
The following responded to the request for written
comments which was contained in the preamble to the
proposed regulations: Natural Resources Defense
Council, Inc.; Duke Power Company; Shell Oil
Company; Manufacturing Chemists Association;
United States Atomic Energy Commission; United
States Department of the Interior; Quirk, Lawler and
Matusky Engineers; Indianapolis Power and Light
Company; New York State Department of
Environmental Conservation; State of Michigan
Department of Natural Resources; National Oceanic
and Atmospheric Administration; Tennessee Valley
Authority; State of California-State Water Resources
Control Board; Commonwealth Edison Company;
Texas Electric Service Company; Consolidated Edison
Company of New York, Inc.; Salt River Project; Otter
JA-41
Tail Power Company State of New York Public Service
Commission; illinois Power Company; The Great
Western Sugar Company; Edison Electric Institute;
State of New Hampshire Fish and Game Department;
Union Carbide Corporation; Texaco, Inc.; Mobil Oil
Corporation; New York Power Pool; United States
Department of Health, Education, and Welfare;
Colorado Department of Public Health; Texaco, Inc.;
Northern Indiana Public Service Company; New
England Power Company; State of New York
Department of Law; Debevoise and Liberman. The
following is a summary of the significant comments and
the Agency’s response to those comments.
(1) Several commenters recommended that the
regulations provide that the “best technology
available” be determined on the basis of an assessment
of the cost of applying a particular technology in
relation to the benefits to be attained.
No comparison of monetary costs with the social
benefits of minimizing adverse environmental impacts,
much less a_ formal, quantified “cost/benefit”
assessment is required by the terms of the Act. The
statute directs the Agency to insure that enumerated
aspects of cooling water intake structures reflect the
best technology available for minimizing adverse
environmental impacts. Once such adverse effects
have been identified (or, in the case of new structures,
predicted) then the effort must be to select the most
effective means of minimizing (i.e., “reducing to the
smallest possible amount or degree”) those adverse
effects. The brief legislative history of section 316(b)
states that the term “best technology available”
contemplates the best technology available
commercially at an economically practicable cost. As
J A-42
with the statute, this language does not require a
formal or informal “cost/benefit” assessment. Rather,
the term “available commercially at an economically
practicable cost” reflects a Congressional concern that
the application of “best technology available” should
not impose an impracticable and unbearable economic
burden on the operation of any plant subject to section
316(b). Since the regulations require a case-by-case
determination of the best available technology,
consideration of the economic practicability of
installing that technology must necessarily be
conducted on a similarly individualized basis.
(2) Several commenters recommended that the
Development Document include specific consideration
of the age of facilities and other pertinent factors which
bear upon the degree to which costs are reasonable for
particular establishments. Others suggested that the
Agency explicitly distinguish among the types of
technology considered the best available on the basis of
the nature of the water body on which the plant is
located and the percentage of flow withdrawn.
Section 316(b) requires “that the location, design,
construction, and capacity of cooling water intake
structures reflect the best technology available for
minimizing adverse environmental impact.” Decisions
relating to the best technology available are to be made
on a case-by-case basis and may include factors such as
age. The Development Document for Cooling Water,
Intake Structures contains information to be used in
determining the best technology available. The
Development Document accompanying effluent
limitations and new source performance standards for
particular industrial categories may be referred to for
other factors specific to point sources within that
JA-43
category which may be relevant to consideration of
economic practicability. The potential for adverse
environmental effects associated with cooling water
systems may depend upon such factors as size and type
of water body and relative magnitude of flow
withdrawn for cooling. The Agency expects such
factors to be considered in determining the appropriate
cooling water technology.
(3) Several commenters recommended that the
construction technology information be deleted from
the Development Document because its consideration
by EPA would duplicate the actions of the U.S. Army
Corps of Engineers.
The regulations of the Corps of Engineers primarily
relate to hazards to navigation. The data in the
Development Document concerning construction
technology address factors related to “minimizing
adverse environmental impact” of cooling water intake
structures and therefore supplement rather than
duplicate the actions of the Corps of Engineers.
(4) Some commenters recommended that the
Agency identify closed cycle or recirculating cooling
systems as the best technology available for minimizing
adverse environmental impact. Others recommended
that, at least for steam electric powerplants located in
estuaries and biologically important coastal areas the
“best technology available” is closed cycle cooling, since
minimization of cooling water intake capacity (volume
of flow) is the most practical currently available means
for minimizing mortality of marine species in passage
through the internal cooling systems of these plants.
The Ageney does not believe that closed cycle
cooling systems are universally and necessarily the
best technology available despite their undoubted and
JA-44
dramatic reduction in rates of water used. While the
extent of entrainment and impingement damage is in
many cases correlated with the amount of water
withdrawn, the Agency believes that the appropriate
technology is best determined after a_ careful
evaluation of the specific aspects at each site.
Moreover, because of the substantial cost of conversion
to closed cycle cooling systems, its economic
practicability will depend upon considerations relating
to individual industrial plants which are, again, most
effectively analyzed on a case by case basis.
While there is substantial evidence for concern
about the potential destructive effects of open-cycle
cooling systems on powerplants in biologically sensitive
areas such as_ estuaries, the available data
corresponding to certain of these plants do not support
a blanket requirement that all similarly situated plants
reduce the capacity of their intake structures so as to
require conversion to recirculating cooling systems.
(5) One commenter observed that the cost of
modifying an existing intake structure to comply with
certain specifications will generally exceed the cost of
designing and constructing a new intake structure to
those standards. On this basis, it is urged that the
Agency expressly provide that an existing structure
which has minimal environmental impact “reflects” the
“best technology” regardless of whether its design,
location and capacity conform precisely to the related
criteria set forth in the Development Document.
The Agency recognizes that the cost of modification
to existing structures may exceed that of constructing
a new intake structure to comparable standards. The
Agency expects that higher costs associated with
“retrofitting” existing structures, as well as the
JA-45
relationship of those costs to the remaining expected
useful life of the facility, will be taken into account in
determining the extent to which the _ specific
technological measures described in the Development
Document are available at an “economically practicable
cost.”
(6) Some commenters recommended that the
Development Document should provide that the proper
test for minimizing adverse environmental impact is
related to damage to the aquatic ecosystem and not to
the number of fish and other aquatic organisms killed
or damaged.
Section 316(b) requires that the best technology
available be used to minimize adverse environmental
impacts. As noted in the Development Document,
there are many factors that should be considered when
determining whether an adverse environmental impact
exists or is likely to exist. The factors noted by the
commenters are among those to be considered. All
pertinent factors, rather than reliance on a single
factor, should receive adequate consideration.
(7) Some commenters recommended that the
regulations should not establish nationally uniform
deadlines for compliance.
Inasmuch as the available technologies of cooling
water intake structures for minimizing adverse
environmental impact, as well as effluent thermal
control system characteristics governed by section
316(a) of the Act, are closely related to the capacity
(volume of flow) and other features of the cooling water
intake system, the practicable implementation of
requirements concerning intake structures and effluent
heat should consider both requirements. Therefore,
compliance dates should be determined on a case-by-
J A-46
case basis taking into consideration any compliance
dates for limitations on the discharge of heated effluent
and other pertinent factors.
(8) Some commenters recommended that the
regulations should refer independently to entrainment
damage or that the Development Document should be
enlarged to cover harm from entrainment. A
countervening recommendation submitted by some
commenters was that the regulations apply only to the
physical intake structures themselves and not to
entrainment damage within other parts of the cooling
system.
The terms of the Act and the legislative history
related to section 316(b) indicate that the best
technology available for cooling water intake
structures be used for minimizing any adverse
environmental impact. The Development Document
has been enlarged to include factors relating to the
entrainment problem which, as commenters noted, is of
environmental concern, and which realistically cannot
be separated from intake structure capacity or location.
(9) A commenter recommended that the time
period be identified over which the percentage of flow
atributable to cooling is to be calculated.
The definition of the term “cooling water intake
structure” indicates that the major portion of the water
directed through the structure is to absorb waste heat.
An adequate period of time should be used to minimize
short term water use variations. This period of time
should be at least twelve months, except where shorter
periods are warranted.
(10) One commenter criticized the omission of
energy penalties associated with operation of some
closed cycle cooling systems and suggested that the
JA-47
Agency should address this cost as well as the capital
costs of construction.
The Agency has undertaken an economic analysis of
the regulations in response to this comment and in
order to assess the potential economic effects of
installing the best available cooling water technology
on intake structures at electric powerplants—which
are the largest industrial users of cooling water. This
analysis addresses the energy and capacity loss costs of
closed cycle cooling, assuming that these systems were
to be required. The analysis is necessarily tentative
since the regulations do not attempt to establish rigid
rules governing the selection of best technology
available. Nevertheless, the analysis indicates that
even under conservative assumptions of the number of
plants affected, the increase in energy (fuel)
consumption is less than one half of one percent of total
fuel consumption by the power industry.
(11) It was suggested that the information and data
collection requirements for the intake structure
determinations under section 316(b) be coordinated
with those of section 316(a) which addresses the
environmental effects of heat in the discharge of
cooling water.
The Agency agrees that duplication in the collection
of biological and hydrological data should be avoided.
To the extent that relevant data are assembled in
connection with 316(a) proceedings, or other studies,
they should be used in making determinations pursuant
to section 316(b). However, the Agency rejects the
related suggestion that a determination under section
316(a) that thermal component of a discharge will not
disrupt the balanced indigenous aquatic community in
the receiving waters should be conclusive for purposes
JA-48
of 316(b). In some cases, the data available in 316(a)
proceedings will not be sufficient to make a judgment
as to 316(b) concerns. Even where the data are
complete, however, the conclusion in a 316(a) hearing
should not necessarily govern the outcome of 316(b).
Certainly, the Agency would not deny a request for
less stringent thermal effluent limitations under 316(a)
where the necessary statutory showing had been made
because of entrainment effects of the plant’s intake
structure. Similarly, the Agency should not be
precluded from addressing evident entrainment
problems simply because the plant’s thermal «.fluent is
not itself environmentally unacceptable. The concerns
of the two sections are different and the legal
standards by which compliance’ with their
requirements is to be judged are similarly distinct.
(b) Revision of the proposed regulation prior to
promulgation.
As a result of public comment and a continuing
review and evaluation of the proposed regulation by
EPA, the following changes have been made in the
regulations.
The terms “location,” “design,” “construction,” and
“capacity” have been defined. Also, the effort to make
an explicit distinction between new and existing intake
structures has been deleted because the proposed
regulation was unclear. Nevertheless, as indicated
above, the Agency does consider the age of an intake
structure to be a relevant factor and anticipates that it
will be taken into account in the determination of best
technology available.
(c) Economic impact.
Cost data for construction of various cooling water
intake structure modes are included in_ the
”)? 6
JA-49
Development Document. An analysis of the projected
economic effects of the regulation on the electric power
industry, the segment most likely to be significantly
impacted by these regulations, has been prepared and
is available from the Agency upon request. The
inflationary impact of these regulations has, as that
analysis indicates, been evaluated in compliance with
Executive Order No. 11821 and OMB Circular A-107.
(d) Final rule making.
In consideration of the foregoing, 40 CFR Chapter
I, Subchapter N, Part 401 is hereby amended and a
new Part 402 is established to read as set forth below,
to be effective May 26, 1976.
Dated: April 16, 1976.
RUSSELL E. TRAIN,
Administrator.
JA-50
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
DECISION OF THE GENERAL COUNSEL
In re Brunswick Steam Electric Plant
June 1, 1976
EPA GCO 41
In the matter of the National Pollutant Discharge
Elimination System Permit for Brunswick Steam
Electric Plant, Permit No. NC0007064, Southport,
North Carolina, the presiding officer has certified four
issues of law to the General Counsel for decision
pursuant to 40 C.F.R. § 125.36(m). The parties, having
had the opportunity to provide written briefs in
support of their respective positions, present the
following issues:
QUESTION PRESENTED
Timing of Imposition—July, 1981, Guideline Data —
Can “best technology available” requirements be
imposed under § 316(b), and thus under § 301, prior to
the July 1, 1981, date specified in 40 C.F.R. § 423.13(m)
for compliance with § 301 thermal effluent limitations?
DECISION
Insofar as $316(b) addresses a_ different
environmental problem in a different manner than the
JA-51
§301 thermal effluent limitations, §316(b)
determinations are independent of determinations
under the thermal effluent limitations. Furthermore,
the July 1, 1981, date in 40 C.F.R. § 423.13 was set on
the basis of the overall ability of the Steam Electric
industry to construct the best available technology—
closed cycle cooling systems. Since § 316(b) does not
establish a uniform “best technology available”, it
would be inappropriate to establish a uniform date
under § 316(b).
Insofar as neither §316(b) nor the regulations
thereunder specify a time limitation for the application
of best technology available, the ultimate compliance
date under § 316(b) is governed only by § 301(b)(2)(A)
which requires compliance not later than July 1, 1983.
Therefore, best technology available under § 316(b)
may be imposed in NPDES permits, on a case by case
basis, prior to July 1, 1981, so long as the prescribed
technology is, in fact, available by the compliance date.
DISCUSSION
Carolina Power and Light Company’s (CP&L)
argument that best technology available under
§ 316(b)! cannot be imposed until July 1, 1981, (the
date, for compliance with thermal effluent limitations)
rests on a misapprehension of the relationship between
§ 316(b) and thermal effluent limitations under § § 301
and 306. CP&L’s argument assumes that § 316(b)
determinations and thermal effluent limitation
1 Section 316(b) states:
Any standard established pursuant to section 301 or section 306
of this Act and applicable to a point source shall require that the
location, design, construction, and capacity of cooling water intake
structures reflect the best technology available for minimizing
adverse environmental impact.
JA-52
decisions under § § 301 and 306 are interdependent and
that §316(b) requirements “ride on the coattails of
§ 301 effluent limitations.” (CP&L’s Brief on Issues of
Law Referred to the Office of General Counsel, at 13.)
Given this assumption, CP&L asserts that § 316(b)
determinations are bound by the July 1, 1981, statutory
date of compliance with the thermal effluent limitations
contained in the Steam Electric Power Generating
Point Source Category regulations prescribing “best
available technology”. (40 CFR Part 423; 39 F-.R.
36186, October 8, 1974).
CP&L’s underlying assumption that §316(b)
determinations are dependent upon thermal effluent
standards is misconceived. First, § 316(b) does not
establish effluent limitations for discharges of heat.
Rather, it addresses a distinct environmental
problem—the withdrawal of massive volumes of water
and the aquatic organisms therein through cooling
water intake structures. Second, the regulations under
§ 316(b)*, unlike the thermal effluent regulations, do
not establish a single industry-wide “hest available,
technology” standard. That is, the Steam Electric
regulations require that all plants within specified
categories in the industry must attain prescribed
thermal effluent limitations by July 1, 1981.
Conversely, the § 316(b) regulations do not prescribe a
single technology or technologies which all sources in
the country must apply.2 The preamble to § 316(b)
regulations states that “the Agency believes that the
appropriate technology is best determined after a
careful evaluation of the specific aspects at each site.”
2 40 C.F.R. 401.14, 402.10, 402.11, 41 F.R. 17389-90, April 26,
1975.
3 41 FR. 17388.
JA-53
Third, unlike the thermal effluent regulations, the
§316(b) regulations do not establish a date for
compliance with “best technology available.” Thus,
§316(b) determinations are bound only _ by
§ 301(b)(2)(A) which requires that effluent limitations
shall require compliance with best available technology
economically achievable not later than July 1, 1983. As
CP&L concedes.
EPA has authority to advance the statutory
deadline in NPDES permits where regulations do not
otherwise establish a compliance date.
Under § 316(b) the best technology available must,
of course, be available. In other words, a compliance
schedule under the § 316(b) regulations must take into
consideration the time necessary to implement the
appropriate technology at a given intake structure.®
In some cases, the implementation of such
technology may require only modest alterations in
design, for example, which could easily be completed
well in advance of 1981. There is no need to delay the
attainment of § 316(b)’s mandate until that date by
mechanistic reference to unrelated sections of the law.
In other cases, best technology available under § 316(b)
may entail substantial changes in cooling water intake
structures and associated cooling system alterations.
It may not be feasible to make these changes by 1981 in
1 Decision of the General Counsel No. 11, at 3; Decision of the
General Counsel No. 23, at 9.
5 The capacity of a cooling water intake could be restricted
under 316(b) so as to necessitate the construction of a closed cycle
cooling system. If so, a compliance schedule for such a restriction
should be coordinated with any independent requirement for the
installation of a closed-cycle cooling system under the Steam
Electric guidelines.
JA-54
certain instances. Thus, the benefits of a flexible case-
by-case §316(b) implementation schedule cut both
ways.
QUESTIONS PRESENTED
Type of Control Technology—Can Cooling Towers
Be Required—Does §316(b) of FWPCA allow
imposition of closed-cycle cooling requirements since
such requirements relate not to the locations, design,
construction and capacity of the cooling water intake
structures themselves, but rather to the type of cooling
system and its thermal discharge technology?
DECISION
‘Section 316(b) authorizes the reduction of the
volume (capacity) of cooling water withdrawn through
a cooling water intake structure if such a reduction
reflects the best technology available for minimizing
adverse environmental impact. Such a reduction of
allowable capacity may necessitate the use of a closed
cycle or recirculating cooling system. Section 316(b)
does not, however, allow for the imposition of closed
cycle cooling systems per se.
DISCUSSION
Section 316(b) provides that “the location, design,
construction, and capacity of cooling water intake
structures reflect the best technology available for
minimizing adverse environmental impact.” The major
adverse environmental impacts of cooling water intake
structures are those affecting aquatic organisms living
in the volumes of water withdrawn through the intake
JA-55
structure.6 Generally, the organisms are “damaged
either through direct contact with the intake structure
(impingement) or through “inner plant” effects which
occur when the organisms are swept through the
intake structure and into the plant itself (entrainment).
One means of minimizing entrainment damage in
particular is to restrict the capacity of the intake
structures and thus the volume of water withdrawn
through the intake system. In this manner, the overall
exposure of aquatic organisms to entrainment effects
may be reduced.’
CP&L, however, asserts that the term “capacity”
refers only to the velocity of water withdrawn through
an intake structure. To the contrary, it seems clear to
me that the term “capacity” in § 316(b) means the
volume of water withdrawn through a cooling water
intake structure. This conclusion is supported by the
commonly understood meaning of the term “capacity’’®
the definition of the term in the regulations under
§ 316(b)® and the legislative history of the Federal
Water Pollution Control Act Amendments of 1972.
In the course of debating the conference report of
the Act on October 4, 1972, the Senate was well aware
of the dangers posed to aquatic life by the withdrawal
6 In the Steam Electric industry, the volumes of water drawn
through plants utilizing “once through” cooling systems are
generally very large. Senate Com. on Pub. Works. A Legislative
History of the Water Pollution Control Act Amendments of 1972,
93d Cong., Ist Session, at 196-197 (1973). (Hereinafter cited as
Leg. Hist).
7 41 F.R. 17388, April 26, 1976.
8 The Random House Dictionary of the English Language
defines capacity (definition 2) as “cubie contents; volume; that
which can be contained.” (Unabridged 1970).
9 40 C.F.R. 402.11(¢), 41 F.R. 17390, April 26, 1976.
JA-56
of large volumes of water through cooling water intake
structures.!° In response to concerns voiced by
Senator Buckley that the Act would prevent the
effective regulation of this problem, Senator Muskie,
the Chairman of the Senate Conference Committee,
stated that EPA had authority under the Act to
regulate the withdrawal of cooling water so as to
minimize adverse environmental aspects.!!
In this context, it is clear that Congress sought to
give EPA authority to regulate the volume of water
withdrawn through cooling water intake structures,
and that Congress was concerned that EPA should do
so where necessary to protect aquatic communities. In
short, the term “capacity” must be interpreted to mean
the “volume of flow” through a cooling water intake
structure so as to be consistent with the dictionary
definitior of the term, the regulations under § 316(b),
and the intent of Congress.
Thus, it does not make sense to define the term
“capacity” in terms of the physical size of the inlet
opening of the intake structure as urged by CP&L.
First, as noted by CP&L, the size of the inlet
determines only the velocity of the water withdrawn,
10 During debate, Senator Buckley cited—with approval—two
newspaper articles which reported a decision of the Atomic
Energy Commission (AEC) to require Consolidated Edison
Company to install a closed cycle cooling system at its nuclear
power plants at Indian Point on the Hudson River. The articles
pointed out that plants withdrew massive amounts of water from
the River and, as a result, also withdrew thousands of aquatic
organisms each minute. In order to minimize this adverse
environmental impact, the articles noted that the AEC had
ordered Consolidated Edison Company to stop removing such
large volumes of water from the River and to install cooling
towers in order to do se. Leg. Hist., supra n. 6., at 196-197.
Il Jd. at 197-198.
JA-57
not the volume. Although velocity (and volume) is an
important factor in the impingement of larger fish,
velocity is not important with respect to the
entrainment of smaller organisms. Rather, the volume
withdrawn is the principal determinant of entrainment
damage which is the major adverse environmental
effect associated with most cooling intake structures.
(41 F.R. 13788, April 26, 1976).
Second, the Random House Dictionary of the
English Language (Unabridged, 1970 Edition) defines
“capacity” as “cubic contents; volume; that which can
be contained.” CP&L’s definition of “capacity,” then,
would prevent EPA from solving a problem which
Congress clearly wanted EPA to solve, and it also is
contrary to the established definition of the term
“capacity.”
CP&L also argues that closed cycle cooling
technology may only be imposed on the basis of
thermal discharge effluent limitations. The definition
of cooling water intake structures in the regulations
under § 316(b) does not encompass cooling systems.!2
Inasmuch as the scope of § 316(b) only extends to the
location, design, construction and capacity of intake
structures, a closed cycle cooling system per se cannot
be imposed under § 316(b).
However, CP&L also implies that closed cycle
cooling may not be imposed even indirectly under
§316(b). That is, CP&L seems to argue that the
capacity of a cooling water intake structure may not be
restricted under § 316(b) so as to necessitate a closed
cycle cooling system. Such an interpretation of § 316(b)
is clearly contrary to the Congressional intent
12 40 C.F.R. 402.1 1(a), 41 FR. 13789-17390, dated April 26, 1976.
JA-58
underlying § 316(b), see discussion supra, and would
upset the overall framework of § 316.
As discussed in terms of Issue I, §316(b) and
thermal effluent limitation standards require
independent determinations. Section 316(b) is
concerned with the adverse environmental impact of
the withdrawal of cooling water rather than the
discharge of heated water. The §316(b) standard is
whether the cooling water intake structure reflects the
best technology available for minimizing adverse
environmental impact rather than whether the
discharge exceeds a thermal limitation or whether the
discharge interferes with the propagation of a balanced
indigenous population of shellfish, fish, and wildlife.!°
In sum, although § 316(b) does not authorize the
Agency to impose a specific closed cycle cooling
technology, it does authorize the restriction of the
capacity of an intake structure. Such a restriction may
necessitate a closed cycle cooling system. This result is
not inconsistent with Agency restrictions on the
volume of pollutant discharge under § § 301 and 306.
That is, while the Agency cannot specify abatement
technologies to be employed under those sections, the
use of a particular treatment system may be a
predictable consequence of the limitation imposed on
the discharge of specific pollutants.
13 Thus, the one-standard approach to § 316 urged by Carolina
Power and Light was clearly rejected by Congress. In fact, the
original House version of § 316 more or less combined § 316(a) and
§ 316(b) considerations in one standard, but this approach was
abandoned in the final conference version of the Act. If Congress
had intended to limit § 316(b) determinations to the confines of
existing thermal discharge technologies, it could have enacted the
House version of § 316 or otherwise linked a determination under
§ 316(a) te a determination under § 316¢b).
JA-59
QUESTION PRESENTED
Can an NPDES Permit Require Cooling Towers As
Such—May the NPDES permit specify use of a
particular control technology—in this case vlosed-cycle
cooling towers—or must cooling water intake structure
requirements be limited to meeting an established level
of environmental performance which is directly related
to the degree of significant adverse environmental
impact found to be caused by the existing intake
structure?
DECISION
An NPDES Permit may specify restrictions on the
location, design, construction, and capacity of a cooling
water intake structure. A permit may not, as the
Region contends, specify a particular closed cycle
cooling system technology. On the other hand, a
permit need not, as CP&L urges, contain a
“performance standard” expressed in terms of the
amount of environmental harm to be avoided by
compliance with § 316(b). Rather, restrictions under
§ 316(b) need only reflect the best technology available
for minimizing adverse environmental impact.
DISCUSSION
Section 316(b) requires that the “location, design,
construction and capacity of cooling water intake
structure reflect the best technology available for
minimizing adverse environmental impact.” Cooling
towers or other closed cycle cooling systems are not
cooling water intake structures. It is clear that there is
no independent basis under § 316(b) to require a
cooling tower in a permit. However, under § 316(b) a
permit may restrict the volume of flow or capacity of
an intake structure. If the capacity of an intake
JA-60
structure is so restricted, the adverse environmental
impact of the intake structure will have been
minimized to a given level regardless of whether the
company installs a cooling tower. That is, the
limitation on intake volume -- not the cooling towers --
protects the endangered aquatic organisms. Cooling
towers are an issue only to the extent that a point
source may have to install a closed cycle cooling system
in order to maintain existing operations if the permit
restricts the volume of previously “once-through”
cooling water.
Finally, the statute does not require that these
cooling water intake structure’ regulations be
expressed in terms of a level of performance which
specifies the degree of adverse environmental impact,
attributable to the intake structure, which is tolerable.
Nor is it clear how compliance with a standard so
expressed could effectively be monitored and enforced.
The structures must reflect the best technology
available for minimizing (i.e., “reducing to the smallest
possible amount or degree”)!4 adverse environmental
impact -- significant or otherwise. All environmental
harm should be avoided, but the continued operation of
a facility will, in most cases, prevent this result. Under
§ 316(b), EPAs confined to the establishment of
technical parameters governing the optimal location,
design, construction and capacity of intake structures.
In other words, the goal of best technology
available under § 316(b) is to minimize all adverse
environmental impacts—not to reduce the impact to a
pre-determined level. CP&L’s argument to the
contrary obscures the critical fact that § 316(b) does
14 Random House Dictionary of the English Language,
(Unabridged 1970).
JA-61
not establish effluent limitations. Rather, §316(b)
conditions effluent limitations established pursuant to
§ § 301 and 306. As such, CP&L’s citations to the
definition of effluent limitations are misleading. While
it is true that an effluent limitation regulates the
performance which must be achieved and not the
technology (CP&L Brief, at 27), §316(b) specifically
regulates enumerated aspects of cooling water intake
structures rather than the makeup of the intake water.
Accordingly, whereas an NPDES permit may not
specify closed cycle cooling systems as best technology
available under §316(b), a permit may specify a
particular location, design, construction technique, or
capacity for a cooling water intake structure as best
technology available.
QUESTION PRESENTED
Is a permittee estopped from contesting the cooling
tower requirements of an NPDES permit when said
permittee agreed to install such devices by stipulation
in settlement of a case before the NRC involving the
same facility where the EPA was not a formal party to
such proceedings?
DECISION
The permittee is not estopped from contesting the
NPDES permit proceeding at issue as the merits of the
Stipulation between NRC and the permittee were not
actually adjudicated.
J A-62
DISCUSSION
Collateral estoppel and res judicata apply only to
administrative actions wuich are actually adjudicated.!®
Insofar as the Stipulation between NRC and CP&L
was not a result of an adjudication of the merits of the
issue but rather represented a_ pre-adjudicatory
settlement, it is not appropriate to apply the principles
of collateral estoppel or res judicata against CP&L in
this proceeding.!®
The spectacle of a major power company
renouncing the environmental _ responsibilities
embodied in its voluntary agreement with NRC to
construct a cooling tower at its Brunswick plant is an
unpleasant one. Nevertheless, since an essential
prerequisite to the application of res judicata and
collateral estoppel is not here present, [ do not believe
the company should be totally precluded from
presenting its case to EPA. See Grose v. Cohen, 406
F.2d 823, 824-5 (C.A. 4 1969).
15 Davis, Administrative Law Treaties, § 18.03, at 558; § 18.08,
at 597 (1958).
16 See, Decision of the General Counsel No. 33, at 4. It should
be noted that the Stipulation provided that:
Nothing in this Stipulation shall affect any authority of the
Environmental Protection Ageney.
JA-63
1 E.A.D. 332, 1977 WL 22370 (E.P.A.)
United States Environmental Protection Agency
(E.P.A.)
Environmental Appeals Board
IN THE MATTER OF PUBLIC SERVICE
COMPANY OF NEW HAMPSHIRE, ET AL.
(SEABROOK STATION, UNITS 1 AND 2)
NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM permit
National Pollutant D scharge Elimination System
Application No. NH 0020338
Case No. 76-7
June 10, 1977
DECISION OF THE ADMINISTRATOR
This is a decision on Appeal from the Initial Decision
(“I.D.”) of the Regional Administrator (“RA”) of
Region I of the Environmental Protection Agency
(“EPA” or the “Agency”) dated November 9, 1976. For
the reasons set forth below, the I.D. is reversed.
This matter has received extraordinary attention from
the press and the public, because of the public debate
concerning whether a nuclear plant should be built at a
location such as that chosen by the Public Service
Company for the Seabrook Station. I think it is
important to emphasize that the Agency has played a
very narrow role in the process of governmental
approval of this nuclear power plant. The Agency’s
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function in this case is to determine whether the
proposed thermal discharge will assure the protection
and propagation of a balanced, indigenous population of
fish, shellfish and wildlife in and on the receiving
waters, and to determine whether the _ intake
structures reflect the best technology available for
minimizing adverse environmental impact. ‘This
decision should not be interpreted as representing
EPA policy on either nuclear power or the overall
environmental desirability of the Seabrook plant.
I. Bae d
A. Procedural Setting
On August 1, 1974, Public Service Company of New
Hampshire (“PSCo”), on behalf of itself and the owners
of a nuclear electric generating station proposed to be
constructed in Seabrook, New Hampshire, filed with
Region I an application for an NPDES permit pursuant
to Section 402 of the Federal Water Pollution Control
Act, as amended (“FWPCA”), 33 U.S.C. §1251 et seq.
Because the applicable regulations as then proposed
(39 F. R. 8294) and later promulgated (40 C.F.R. Part
423) would require no discharge of heat from the main
condensers, with certain limited exceptions, PSCo
requested the imposition of a less stringent thermal
standard pursuant to Section 316(a) of FWPCA. The
filing of the application also brought into play the
provisions of Section 316(b) of FWPCA, which require
that the location, design, construction and capacity of
the cooling water intake structures reflect the best
technology available for minimizing adverse
environmental impact.
PSCo also had pending at the time applications for
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construction permits filed in July, 1973 with the United
States Atomic Energy Commission (“AEC”), now the
United States Nuclear Regulatory Commission
(“NRC”), pursuant to the Atomic Energy Act of 1954,
as amended. The NRC exercises responsibilities both
under that Act and under the National Environmental
Policy Act of 1967 (“NEPA”). Action on PSCo’s
applications proceeded concurrently before the AEC
and EPA. In November, 1974, EPA and the AEC
published a _ proposed Second Memorandum of
Understanding Regarding Implementation of Certain
AEC Responsibilities (89 F.R. 39491, November 7,
1974) (“Proposed Second Memorandum”), which
amplified the procedures for coordinating their NEPA
and FWPCA responsibilities.
In Paragraph 5 of the Proposed Second Memorandum,
EPA agreed to use its best efforts to evaluate impacts
on water quality and biota pursuant to Sections 402 and
316 of FWPCA and to complete cooling water intake
structure evaluations pursuant to Section 316(b) as far
as possible in advance of AEC’s issuance of a
construction permit. For this purpose EPA undertook
to develop regulations establishing a procedure for
issuance to the applicant, where appropriate, of
“preliminary determinations” specifying the terms and
conditions proposed for an NPDES permit pursuant to
Sections 316(a) and (b). Paragraph 5 acknowledged
that the purpose of the preliminary determinations was
to assure, to the extent possible, that considerations
regarding impacts on water quality and biota would not
result in the need for significant changes in plant
design or location subsequent to the completion of
AEC’s environmental review.
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Region I held a public hearing on the application on
January 30, 1975 in Seabrook, New Hampshire.
Thereafter, no regulations providing for issuance of
“preliminary determinations” having been issued by
the Agency, on June 24, 1975 Region I issued
Determinations concerning Section 31l6(a) and (b)
“procedurally by analogy” to the NPDES and Section
316(a) regulations. These Determinations in effect
approved of once-through cooling for Seabrook on
certain conditions, but did not specify the location of
the intake structure. On October 24, 1975, Region I
issued Determinations specifying the location of the
intake structure.
The Seacoast Anti-Pollution League and the Audubon
Society of New Hampshire (collectively referred to
herein as “SAPL”) filed requests for adjudicatory
hearings with respect to both Determinations as
provided in 40 C.F.R. $125.36. The requests were
granted by the RA. Thereafter PSCo and the
Attorney-General of New Hampshire (“NHAG’”)
requested admission as parties. The hearings were
consolidated and held between March 23 and April 2,
1976. The record was certified by the Administrative
Law Judge to the RA on May 21, 1976, in accordance
with 40 C.F.R. §125.36(1)(1). On November 9, 1976 the
RA issued the I.D., in which he revoked the
Determinations. PSCo then filed a Petition for Review
with the Administrator. On December 7, 1976 the
Administrator granted PSCo’s Appeal on two issues:
the impact of the thermal discharge and the intake
design and location. The Administrator stated that
PSCo’s arguments as to burden of proof were to be
presented in the context of these issues.
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Briefs were filed on January 6, 1977 by PSCo and by
amici curiae Appalachian Power Company, et al. (the
“Utilities”). Briefs were filed on February 7, 1977 by
the EPA, SAPL, and NHAG and by the following amici
curiae: the National Wildlife Federation, the New
Hampshire Wildlife Federation and the Natural
Resources Council of Maine (collectively referred to
herein as “NWF’’); the Natural Resources Defense
Council and the Conservation Law Foundation of New
England (collectively referred to herein as “NRDC”);
and Meldrim Thomson, Jr., Governor of the State of
New Hampshire. In addition, on February 7, 1977 the
Utilities moved to file a reply brief, and on February
22, 1977 PSCo moved to file a reply brief. These
motions were opposed by SAPL and are discussed
below.
Section 125.36(n)(12) of the regulations provides that
the Administrator shall decide the matters under
review on the basis of the record presented and any
other considerations he deems relevant. Because of the
complexities of this case I convened a panel of technical
and scientific experts to assist in my review of the
record. I have considered the advice of these experts
in coming to my decision set forth herein. I also
requested and received from PSCo a document
mentioned in their brief and not included in the record,
entitled “Assessment of Thermal Plume Mortality
Attributable to Seabrook Station Cooling Water
Discharge Off Hampton Beach, New Hampshire.” In
addition, as mentioned below, on March 23, 1977 I
issued a Request for Information with respect to
certain aspects of backflushing, and I have considered
all information received in response to that request.
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B. Factual Setting
The proposed nuclear electric generating facility,
Seabrook Station, will consist of two units, one
estimated to begin operation in 1981 and the other in
1983. It will be located in Seabrook, New Hampshire
near the Hampton Harbor estuary, about two miles
inland from Hampton and Seabrook Beaches (which are
on the Gulf of Maine portion of the Atlantic Ocean). As
part of the process of generating electricity at the
plant, steam which has passed through the turbines
must be condensed. Condensing the steam requires
the removal of heat and the rejection of this heat to the
environment by some type of cooling system. The
quantity of heat which must be rejected each hour is 16
x 109 BTU, which is the amount of heat that would be
obtained from 113,465 gallons of No. 2 fuel oil.
The Seabrook Station condenser cooling water system
is called a “once-through” system because there is
neither recirculation of cooling water nor any
supplementary cooling device, such as a cooling tower
or pond. Cold water from the ocean will be drawn into
a tunnel through a three-structure intake, at the rate of
824,000 gallons per minute (gpm). The water will flow
to the plant, where it will remove heat by conduction
through the condenser tubes. At full power, the
temperature of this condenser cooling water will
increase by approximately 39°F. (The difference
between the temperature of the water as it is drawn
into the intake and the temperature of the water after
it has been heated by passing through the condenser
tubes is referred to as the delta-T.) The water will
then flow back through another tunnel to a submerged
multi-port diffuser where it will be discharged into the
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ocean. The quantity of heated water discharged will
average 1,187,000,000 (approximately 1.2 billion)
gallons per day.
The Seabrook Station would have the highest delta-T
of any steam electric generating station now operating
in the United States; several stations have higher
volume. PSCo states in its Brief (at p. 6) that:
This high delta T was deliberately chosen in
consultation with the marine biologists advising
PSCo in order to minimize the volume of water
which must be utilized for cooling purposes. This
choice was made on the theory that inasmuch as the
long travel times and substantial pressure changes
necessitated by the use of open ocean, as opposed to
estuarine, cooling water coupled with the normal
mechanical and chemical effects of any condenser
would result in significant (if not total) mortality to
entrained organisms, the way to minimize
entrainment mortality was to minimize the volume
of water utilized. Since the amount of heat to be
removed is dictated by the laws of thermodynamics,
the only way to reduce the volume of water needed
to perform the removal task is to increase the
amount of heat removed per unit of water volume,
i.e., increase the delta T. Thus, while Seabrook
Station will have a delta T that is unusually high, it
will take in one-half the water a system having a 20
delta T would, putting at risk one-half the number
of entrained organisms.
Seabrook Station would have cooling water intake
structures within the meaning of Section 316(b) of
FWPCA. The intake will consist of three structures,
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each of which is connected to the intake tunnel by a 9-
foot diameter riser shaft. Each structure will be
circular, with the lower lip being a minimum of 7 feet
off the bottom; the top of the structure will be a
velocity cap 7 feet above the lower lip; both the lower
lip and the velocity cap will have a diameter of 30 feet 6
inches. The three structures will be located 110’ apart
in a straight line running southeast to northwest. Each
structure will take in ocean water at approximately 600
cubic feet per second (cfs), or a total of 1800 cfs, with an
entrance velocity of approximately 1 foot per second
(fps).
PSCo originally proposed that the intake location
should be approximately 3,000 feet east of Hampton
Beach in water about 38 feet deep, mean sea level
(“MSL”), with the intake openings being approximately
24 feet through 31 feet below the surface, MSL. (This
location is herein referred to as the “near site”). In the
October 24 Determinations, the Regional
Administrator required that the ports be located
approximately 4,000 feet northwest of the near site in
water approximately 41 feet through 48 feet below the
surface, MSL. (This location is herein referred to as
the “far site”.)
The diffuser through which the cooling water will be
discharged will consist of twenty-two nozzles spaced in
pairs along a 1000-foot line oriented generally
northwest to southeast. The discharge nozzle closest to
the shore will be about 5,400 feet east of Hampton
Harbor Inlet. The discharge nozzles will be
approximately 45 feet below the water surface and
seven feet above the ocean floor. The design discharge
velocity is 15 fps in a generally eastward direction and
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oriented at various angles (either 20° or 25°>>>>>>>>,
depending on the nozzle) above the horizontal.
Another aspect of the condenser cooling system of
relevance is the so-called “backflushing” operation to
clean the intake tunnel. This consists of reversing the
flow of the system once or twice a month so that water
is drawn in through the diffuser and is discharged
through the intake structures. After flow is reversed,
the discharge water is brought to a temperature of
120°F by recirculation through the condenser and held
at that temperature, through the entire length of what
is normally the intake tunnel, for a minimum of two
hours. This procedure is intended to control biofouling
in the intake tunnel by killing any organisms which
may have settled and grown in the tunnel.
II. Preliminary Matters
A. The Appalachian Pow
The Agency’s effluent limitation guidelines and
standards for the Steam Electric Power Generating
Point Source Category, 40 CFR Part 423, issued
pursuant to Sections 301, 304, 306 and 316(a) of
FWPCA on October 8, 1974, were challenged by
publicly and privately owned electric generating
companies in Appalachian Power Co. v. Train, Civ.
Nos. 74-2096 et al., 9 E.R.C. 1033 (4th Cir. 1976). It
was these regulations that established closed-cycle
cooling as “best available technology economicaliy
achievable” (?7F BATEA”) under Section 301(b)(2)(A)
of FWPCA for plants such as Seabrook.
The plaintiffs argued that the Agency’s regulations
were invalid because the Agency failed to balance the
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overall social benefits to be derived from its
regulations against their social costs. While rejecting
the contention that benefits derived from a particular
level of effluent reduction must be quantified in
monetary terms, the court held that the Agency must
consider the benefits derived from the application of its
effluent reduction requirements in relation to the
associated costs of alternative levels of heat reduction
in order to determine whether the resulting progress is
“economically achievable” and whether the reduction in
heat discharged represents “reasonable further
progress toward the elimination of pollutants.” The
eourt also directed that EPA _ reevaluate its
requirements for closed-cycle cooling at generating
units located along the coastline.
The effect of the remand of the steam electric
generating guidelines was, as urged by the Utilities, to
require the Agency to determine what is BATEA for
existing sources on a case-by-case basis under Section
402(a)(1). Since the Appalachian Power opinion was
handed down on July 16, 1976, after the issuance of the
Determinations and the adjudicatory hearing, the RA
was faced with the dilemma of how to treat the decision
in the pending 316(a) request for the Seabrook Station.
[FN1] The RA seemingly had two choices: he could
start from scratch to determine what is BATEA for the
Seabrook Station, and then go to the 316(a)
determination if the BATEA requirements were more
stringent than the applicant’s requested 316(a) effluent
limitations, or he could simply assume that the
reconsidered BATEA standards would be more
stringent and that PSCo’s 316(a) request would
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represent a relaxation from that requirement. The RA
chose the latter course.
PSCo urges that this is arbitrary, capricious and
contrary to law; it does not, however, suggest what
position the RA should have adopted instead. PSCo
never requested the RA to make a determination of
BATEA under Section 402(a). I find that the RA’s
assumption was an expeditious and reasunable way of
ruling on PSCo’s pending application without further
delay under the unique circumstances of this case.
B. Nature of Section 316(a) and (b)
The RA discussed the nature of 316(a) and (b) and
came to some conclusions which are of interest beyond
the circumstances of this case. Because this is the first
ruling I have made with respect to Section 316,
discussion of these aspects of the RA’s decision is
merited to provide further guidance to all interested
persons as to Agency’s interpretation of Section 316.
(1) Consideration of Costs under Section 316(b). The
RA followed the Agency policy set out in the preamble
to the 316(b) regulations (41 F.R. 1738 et seq.), which
provides that the Agency must identify or predict
adverse environmental effects and then select the most
effective means of “minimizing” (defined in the
premable as “reducing to the smallest possible degree”)
the adverse effects. The preamble interprets “best
technology available” to mean “best technology
commercially available at an economically practicable
cost”, based on legislative history, and states that
Section 316(b) does not require a formal cost/benefit
analysis. However, the RA stated that:
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Determining the degree of minimization required
calls for a balancing of costs with the magnitude of
the environmental impact to be avoided to achieve a
reasonable relationship between the costs of the
technology and the magnitude of adverse
environmental harm avoided.
The RA and the Agency both take the position that,
since the regulations require a case-by-case
determination of best available technology,
consideration of the economic practicability must also
be conducted on a case-by-case basis.
The Utilities argue that cost/benefit balancing is
required under Section 316(b) and urge affirmance of
the RA’s decision insofar as it appears to agree with
this position. The Utilities cite DuPont v. Train, 541 F.
2d 1018, 8 ERC 1718 (4th Cir. 1976) and Appalachian
Power, supra. In Dupont, the Fourth Circuit held that
a cost/benefit analysis was required under Section
304(b)(1)(B) with respect to the determination of what
is “best practicable control technology currently
available” under’ Section 301(b)(1)(A); Section
304(b)(1)(B) expressly required the Agency to take into
account “the total cost of application of technology in
relation to the effluent reduction benefits to be
achieved from such application.” In Appalachian
Power, as discussed above, the Fourth Circuit held
that in determining whether its regulations specified
“best available technology economically achievable ...
which will result in reasonable further progress
towards the national goal of eliminating the discharge
of all pollutants” under Section 301(b)(2)(A), the
Agency must consider the benefits derived from the
application of its effluent reduction requirements in
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relation to the associated costs to determine whether in
fact the resulting progress is “economically achievable”
and whether the progress is “reasonable.” The
Utilities argue that since “best available technology
economically achievable” is equivalent to the term
“best technology commercially available at an
economically practicable cost,” Appalachian Power
dictates a cost/benefit balancing under Section 316(b).
I believe that neither DuPont nor Appalachian Power
is dispositive of the issue and that the Agency’s
position, that cost/benefit analysis is not required
under Section 316(b), is correct. Section 316(b)
provides flatly that cooling water intakes shall “reflect
the best technology available for minimizing adverse
environmental impact.” Unlike Sections 301 and 304,
Section 316(b) determines what the benefits to be
achieved are and directs the Agency to require use of
“best technology available” to achieve them. There is
nothing in Section 316(b) indicating that a cost/benefit
analysis should be done, whereas with regard to “best
practicable control technology currently available” and
“best available technology economically achievable”
Congress «dded express qualifiers to the law indicating
a requirement for cost/benefit analysis. Indeed, but for
one bit of legislative history,!FN2] there would be no
indication that Congress intended costs to be
considered under Section 316(b) at all. 1 find,
therefore, that insofar as the RA’s decision may have
implied the requirement of a cost/benefit aralysis
under Section 316(b), it was incorrect.
However, the RA may have meant only that some
consideration ought to be given to costs in determining
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the degree of minimization to be required. I agree that
this is so—otherwise the effect would be to require
cooling towers at every plant that could afford to install
them, regardless of whether or not any significant
degree of entrainment or entrapment was anticipated.
I do not believe that it is reasonable to interpret
Section 316(b) as requiring use of technology whose
cost is wholly disproportionate to the environmental
benefit to be gained.
(2) Interdependence of Section 316(a) and (b). The RA
ruled that a determination of the effect of the thermal
discharge cannot be made without considering all! other
effects on the environment, including the effects of the
intake (i.e., entrainment and entrapment); the applicant
must persuade the RA that the incremental effects of
the thermal discharge will not cause the aggregate of
all relevant stresses (including entrainment and
entrapment by the intake structure) to exceed the
316(a) threshold. | believe this is the correct
interpretation of Section 316(a). The effect of the
discharge must be determined not by considering its
impact on some hypothetical unstressed environment,
but by considering its impact on the environment into
which the discharge will be made; this environment will
necessarily be impacted by the intake. When Congress
has so clearly set the requirement that the discharge
not interfere with a balanced indigenous population, it
would be wrong for the Agency to put blinders on and
ignore the effect of the intake in determining whether
the discharge would comply with that requirement.
The Utilities argue that the Agency has recognized the
independence of 316(a) and (b) in the preamble to the
regulations, which states that the “concerns of the two
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sections are different and the legal standards by which
compliance with their requirements is to be judged are
similarly distinct” (41 F.R. 17389). As SAPL points
out, the fact that the legal standards of the two sections
are different does not mean that factual aspects of the
intake may not be considered in making a legal
conclusion about the discharge.
The RA also ruled that, as a matter of sound statutory
interpretation and good policy, an intake structure
would not (as a threshold matter) be “minimizing”
adverse environmental impacts if, for example, its
entrapment and entrainment effects (examined in the
context of all projected stresses on the environment)
would interfere adversely with “the protection and
propagation of a balanced, indigenous population of
shellfish, fish and wildlife.” I find it unnecessary to
rule whether this interpretation is correct because I
have determined that the intake structures (examined
in the context of all projected stresses on the
environment) will not interfere with “the protection
and propagation of a balanced indigenous population of
shellfish, fish and wildlife.”
Finally, the RA ruled that even if entrainment and
entrapment effects would not cause an “imbalance”
they must be “minimized.” This is in accord with
Agency policy that “the conclusion in a 316(a) hearing
should not necessarily govern the outcome of 316(b)”
(41 F.R. at 17389). Thus, the RA concluded, even if the
316(a) burden were met, an applicant could face
restrictions on intake capacity which could only be met
by use of clused-cycle cooling. I believe this conclusion
is also correct. As mentioned above, some
consideration of cost relative to the environmental
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benefits to be obtained through further minimization
would be appropriate.
PSCo argues that the interdependent interpretation of
316(a) and (b) is wrong because it makes it impossible
for any applicant to obtain a 316(a) ruling; they point
out that the RA ruled the 316(a) showing failed because
of the potential effects of the intake structures and at
the same time said it was premature to set 316(b)
conditions because no 3l6(a) standard had been
established. I do not foresee any difficulty in this
regard. The 316(a) and (b) decisions can be made
concurrently. Indeed, in cases such as this one, the
316(a) and (b) determinations must necessarily be
considered together because the discharge functions as
an intake during backflushing and vice versa.
(3) Meaning of Term “Capacity” in Section 316(b). The
RA stated that under Section 316(b) restrictions could
be imposed on intake capacity which could only be met
by application of closed-cycle technology. It is
important to note in this connection thut the 316(b)
regulations define “capacity” as “the maximum
withdrawal rate of water through the cooling intake
structure” (40 CFR §122.11(e)). The Utilities state
that the RA “assumed he could impose closed-cycle
cooling under §316(b’:” they then argue that 316(b)
regulates only the intake structures appurtenant to
whatever discharge control technology is
independently chosen under other sections. They also
argue that “capacity” properly refers to the size of the
intake structure, not volume of flow or rate of flow.
It is Agency policy that the Agency may not require
use of cooling towers under 316(b); however, it may
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restrict the capacity of the intake structures and thus
indirectly necessitate a closed-cycle system.[FN3] The
RA clearly said no more than this.
The Utilities’ explanation for the restrictive reading of
the term “capacity” is that the size of a structure, in
conjunction with the quantity of water needed per unit
time by a given cooling system, determines intake
velocity. Although intake velocity is one factor
affesting entrapment, it is the volume of water
withdrawn that principally determines entrainment.
There is no justification for giving “capacity” the
restrictive meaning ascribed to it by the Utilities,
especially since Congress was aware of and concerned
about the entrainment effects of intakes (Legis. Hist.
at 196-7). The Agency’s definition is supported by the
literal definition of “capacity” and by the intent of
Congress to minimize adverse environmental effects
caused by intake structures.
C. Burden of Proof - 316(a)
The burden of proof rules in the Agency’s NPDES
regulations (40 CFR § 125.36(i)(1)), which the RA
applied “procedurally by analogy” in this case, provide
that the burden of going forward and the burden of
proof are on the party raising the issue at the hearing.
The RA held that these rules were only for purposes of
the hearing and that the burden of proof in 316(a) cases
rests on the applicant throughout the entire permit
proceeding.
PSCo argues that an agency is bound by its own rules
and that the RA misinterpreted the burden of proof
rules. Based on its burden of proof argument, PSCo
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complains throughout its brief that the RA “interposed
issues not raised by the parties.” It also complains,
when the RA “finds” that there is inadequate evidence
on various points, that these “findings” are not
“supported by the record.” The Agency argues that
“burden of proof’ can mean either burden of persuasion
or burden of producing evidence; the burden of
persuasion remains always with the same party but the
burden of producing evidence can shift between the
parties. The Agency argues that SAPL had a burden
of showing that PSCo’s proposed limitations might not
assure protection of the marine ecosystem, and that
PSCo had the burden of persuading the RA that a “no
discharge of heat” limitation was more stringent than
necessary.
I find the RA’s and the Agency’s interpretation of
these regulations to be without merit. Clearly the
“burden of persuasion” and the “burden of producing
evidence” are the same as the “burden of proof’ and
the “burden of going forward,” both of which the
NPDES rules place on the person raising the issue.
However, I do agree with SAPL and NRDC that the
burden of proof rules in the NPDES regulations are
inconsistent with the requirement of Section 316(a)
that the applicant must “demonstrate” his entitlement
to a 316(a) waiver. Until the Agency has had an
opportunity to listen to all points of view its
Determinations should not be final and, until they are
final, the applicant, under Section 316(a), has the
burden of proof. Accordingly, the regulations at 40
CFR §125.36 were inappropriate for 316(a) hearings in
this regard, and I am directing the Office of General
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Counsel to consider the need for issuance of regulations
designed especially for 316(a) hearings.
Though I disagree with the RA’s decision regarding
the adequacy of the evidence in this case and find that
PSCo has in fact carried its burden of proof, I agree
with the principle that an RA has the power and the
obligation to reverse his Determinations, regardless of
the burden of proof rules, when he concludes that his
Determinations were incorrect. This would especially
be so where he determines that data adequate to
support his Determinations are lacking in the record.
The Agency is the representative of the public interest
and is not “an umpire blandly calling balls and strikes
for adversaries appearing before it; the right of the
public must receive active and _ affirmative
protection”(FN4] at the hands of the Agency. The
courts have made clear that the Agency must take
affirmative steps to obtain the information necessary to
sound decisions under the statutes it administers, even
at the cost of delay; if there is insufficient evidence in
the record to sustain the Determinations, there is no
choice but to reverse the Determinations until
adequate data are adduced. Therefore I commend the
RA for the courage and responsibility shown by him in
his I.D.
I wish to emphasize that this case points out the
importance of close scrutiny by the Regions of an
applicant’s plans for a 316(a) demonstration and its
implementation of those plans; it also highlights the
need for a thorough analysis of the applicant’s
submission before issuance of Determinations. I note
in this regard that PSCo’s demonstration appears to
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consist of a series of reports and affidavits without the
“interpretive, comprehensive narrative summary of
the demonstration ... [including] a clear discussion
stating why the applicant’s demonstration is sufficient
to assure that the proposed discharge will assure the
protection and propagation of a balanced, indigenous
community”FN5] suggested by the Draft 316(a)
Manual. Review both at the Regional level and on
Appeal would be assisted by such a document. Without
passing on the merits of that case, I note that the RA’s
Determination of March 4, 1977 regarding a proposed
unit at the Pilgrim Power Plant appears to provide the
type of discussion I have in mind.
D. Burden of Proof - 316(b)
The Utilities argue that the Agency has a duty to
implement Section 316(b) and that the RA’s decision
improperly shifted the burden of proof to the applicant
by adopting rules of thumb. For instance, the RA said
that an intake structure should be located in waters
which are the least productive biologically and should
avoid areas such as spawning areas, nursery areas, etc.
The Utilities argue that this, coupled with the RA’s
unduly stringent standard of proof (discussed below),
amounts to a per se rule requiring closed-cycle cooling
at all estuarine plant locations. They point out that the
Agency expressly declined to adopt such a per se rule
in the preamble to the 316(b) regulations (41 F-.R.
17388).
The RA essentially did no more than repeat the
language of the Development Document accompanying
the 316(b) regulations, which concluded with respect to
consideration of location in 316(b) cases that:
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Plant siting and the location of the intake structure
with respect to the environment can be the most
important consideration relevant to applying the
best technology available for cooling water intake
structures. Care in the location of the intake can
significantly minimize adverse environmental
impacts ... [A]mong the many factors that can be
considered in locating the intake structure to
minimize adverse environmental impacts [are] ...:
-Avoidance of important spawning areas, fish
migration paths, shellfish beds or any location
where field investigations have revealed a
particular concentration of aquatic life.
It will be difficult [sic] and perhaps impossible in
certain cases to offset the adverse environmental
impact of improper intake location by subsequent
changes in either design or operation of the intake
structure short of significantly reducing the intake
volume and/or the development of an effective fish
recovery or diversion system. (at 178)
Substantially similar language was contained in the
predecessor Development Document dated December
1973, at 144-5. It is clear that the RA did not establish
a per se locational rule, but merely considered the
intake in the light of the factors described above.
E. Standard of Proof
The RA said the applicant must provide the RA with
“the evidentiary showing needed to make a reasoned
decision” as to whether the 316(a) test was met and
that “adequate information” must be furnished as to
the projected stresses on the aquatic environment from
all sources. This is clearly correct. However, in the
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I.D. the RA occasionally used some phrases which
implied a much higher standard of proof. For instance,
he said that information on the “the whole marine
ecosystem” may be necessary.
PSCo argues that the RA imposes an impossible
standard of proof under 316 because he demands a
showing with respect to the “whole marine ecosystem”
and he seeks absolute assurance and scientific certainty
in an area which is complex and uncertain. PSCo
argues that the proper rule is “preponderance of the
evidence”. The Utilities join in this argument. Also,
they argue, the RA refused to make an intelligent
choice on the basis of reasonably available evidence;
the effect is to require cooling towers in every case
because the RA is requiring evidence to a degree of
precision which is in fact unattainable.
As the Agency points outs, the burden of proof in a
316(a) case is a stringent one. The “preponderance of
the evidence” rule would be inappropriate if the
evidence being weighed were inadequate. The RA may
not speculate as to matters for which evidence is
lacking. On the other hand a biologist experienced
with thermal discharges, who reviews evidence as to
certain species, can often conclude with assurance
(based upon his knowledge and experience) that
adverse effects will not be suffered by other species or
life stages not mentioned.
The question is, at what point is the evidence adequate
for a 316(a) determination? No hard and fast rule can
be made as to the amount of data that must be
furnished. Much depends on the circumstances of the
particular discharge and receiving waters. It would be
an unusual case where data would be required as to the
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effects on the “whole ecosystem”.[FN6] Effects on one
group of organisms can generally be inferred from the
effects on another group of organisms. This is the
theory behind the representative important species
(“RIS”) approach to 316(a) demonstrations (40 CFR
§122.9(b)(2)). Data should not be required to be
furnished simply because they are collectible, if the
data would not aid in the determination to be made.
For instance, in this case the RA found that data as to
the thermal tolerances of certain life stages of RIS
were missing. Though this is true, I find that,
examining the data in the record in the light of an
informed scientific judgment, it is not necessary for
PSCo to furnish further data; the available data are
sufficient for me to conclude that there will not be an
imbalancing of indigenous populations. However, in
another case, the applicant might have to furnish not
only complete data as to the RIS, but possibly
additional data!'N7) The greater the risk, the greater
the degree of certainty that should be required. The
rule is stated reasonably well in the Draft 316(a)
Manual:
Mathematical certainty regarding a dynamic
biological situation is impossible to achieve,
particularly where desirable information is not
obtainable. Accordingly, the Regional
Administrator (or Director) must make decisions on
the basis of the best information reasonably
attainable. At the same time, if he finds that the
deficiencies in information are so critical as to
preclude reasonable assurance, then alternative
effluent limitations should be denied. (p. 8)
In this connection I note that the RA apparently felt
JA-86
constrained to avoid discussion of the merits of the case
with his technical staff after the hearing because they
were “parties” to the case and could not be consulted in
the absence of the other parties. Consequently the RA
was deprived of the opportunity to consult with
experts experienced in the matter of thermal
discharges, and reviewed the record with only the
assistance of his legal staff and a biologist hired for the
purpose. This unfortunate result appears to have
occurred partly because the Agency took a position in
favor of its Determinations (i.e., in support of PSCo) at
the hearings, thus becoming “party” as well as judge.
This seems to to me to have been unnecessary and of
dubious propriety.
I am requesting my staff to review this aspect of the
case with a view toward assuring that in future 316
cases RAs will have available to them adequate
Agency resources to assist in the review of the record.
In connection with the review of the regulations
mentioned above, | am asking the Office of General
Counsel to review the question of whether the Agency
should act as a “party” in 316(a) proceedings.
F. Receiving Waters
One of the underlying questions to be considered in
making the decision in this case was what should be
considered as the receiving waters. The Hampton-
Seabrook area is part of the Gulf of Maine, a much
larger body of water, which in turn is part of the
Atlantic Ocean. Obviously an impact which created an
imbalance in the local indigenous populations might not
be felt in the Gulf of Maine or the Atlantic Ocean. Put
another way, if the Atlantic Ocean (or a portion of it as
large as the Gulf of Maine) is to be considered as the
J A-87
receiving water, then Section 316 might be a dead
letter as to coastal power plants because plants of a
size likely to be built probably would not have an effect
on such an enormous body of water. Therefore I think
that in order to give effect to Section 316 it is necessary
to look at a smaller portion of the coastal waters where
human use or enjoyment of the marine resource may be
affected. The portion chosen is necessarily arbitrary to
some extent where, as in this case, there are no obvious
physical boundaries.
For this case I have determined that the appropriate
area to look at in considering the effects of Seabrook’s
discharge is the localized area within and proximal to
Hampton Harbor, which includes the estuary area with
its biologically rich fauna. However, while doing this I
have taken into account the fact that this localized area
is part of, and is fed by, the larger area of the Gulf of
Maine and the Atlantic Ocean. For instance, local
populations of certain species of fish are supplemented
by recruitment from the Gulf of Maine. Thus the
impact of the Seabrook discharge on this localized area
is less than it would be if the localized area were a
closed body of water of the same size.
III. The Thermal Discharge (316(a))
A. ffect under Normal Condition
The RA found, on his review of the record, that there
was inadequate evidence as to the direct and indirect
effects of the thermal discharge on_ indigenous
populations, in various particulars.
In reviewing the adequacy of the record I have utilized
the expert judgment of the technical and scientific
J A-88
panel mentioned above. The biological experts on the
panel reviewed the record with the benefit of their
general knowledge and judgment. The technical and
scientific panel panel also have experience with
thermal discharges and were able to bring their
experience to bear in determining the probable effect
of the Seabrook operation on RIS and indigenous
populations.
Unlike many other plants, Seabrook will use a
multiport, high-velocity diffuser which is designed to
minimize the exposure of marine organisms to high
temperature regions. This design means that there
will be only a small area or volume of water in which
significant lethal or sublethal effects would be expected
on any organisms. (This is quantified in PSCo’s brief,
which states that under full load conditions, the 10°F
isotherm will encompass a maximum volume of 0.33
acre/feet and the 5°F isotherm will encompass a
maximum volume of 3.03 acre/feet).{FN8] Thus the
Seabrook discharge will affect only a small portion of
the Gulf of Maine within or proximal to Hampton
Harbor.
Moreover, I believe, on the recommendation of the
panel, that the intake should be located at the far site,
which will further minimize’ any potential
environmental effects. The data are inadequate for a
316(a) demonstration at the near site because worst
case conditions were not assumed in modeling the
thermal impact of backflushing from the near site on
the Sunk Rocks. In any event, the far site is much
preferable to the near site because: 1) there will be less
likelihood of thermal impact on the Sunk Rocks
JA-89
resulting from backflushing at the far site; 2) the near
site is located close to the presumed migratory
pathways in and out of the estuary; 3) entrainment of
meroplankton of coastal species will be less at the far
site (this is expected to compensate for the possibility
of an increased entrainment of pelagic plankton); and 4)
the outcroppings at the Sunk Rocks area will attract
fish to this site and will increase entrapment there.
The panel concluded that the net effect is that
significant environmental impacts cannot be
anticipated in the area affected by the discharge, and
that the data available in the record indicate that the
“balanced indigenous population” of shellfish, fish and
wildlife in the Gulf of Maine within or proximal to
Hampton Harbor will not be significantly affected.
They therefore concluded that it was not necessary to
have thermal effects data on all life stages of all RIS, as
the RA had required[FN9] I agree with these
conclusions.
Regarding data as to the size and stability of
populations, the panel concluded that determinations of
the species distribution, abundance and relationships
among components of the ecosystem might exceed the
state-of-the-art, especially for certain types of
organisms. The relationships between and among the
species comprising a_ given assemblage (i.e.,
“population” as used in Section 316(a)), such as the
benthic community or the phytoplankton community,
are extremely difficult to define and elaborate. This
difficulty increases as a function of the number of
components to be considered. As mentioned before, it
is much easier to understand or model a community of
J A-90
five species which may interact with each other than
one of 20 species. The potential for interaction
increases as a factorial of the number of species. Also,
generally the species for which studies are available
are those of economic or ecological importance, either
because of numerical dominance or wide distribution.
Consequently, many species have not been studied to a
level that permits defining their role in the ecosystem.
Accordingly I do not find it necessary to have the
degree of information as to size and stability required
by the RA in order to make a judgment as to the
impact of Seabrook.
The RA also found that there was no useful information
in the record concerning the volume of water which
would be entrained in the thermal plume and thus no
way of estimating the numbers of planktonic
organisms, for example, that would be exposed to the
heated water. Actually, using data in the record, the
numbers of plankton entrained can be approximated.
However, even without estimates of numbers of
plankton entrained it can be concluded that the overall
impact of such entrainment on the population of all
plankton in the Gulf of Maine within and proximal to
Hampton Harbor will not be significant. This is
because the portion of the plume which contains water
of sufficient temperature to shock or kill plankton is
small relative to the available water mass; many
plankton will be quickly replaced because of their rapid
regeneration times; and recruitment from other areas
will replenish stocks.
The RA was concerned that much of the data on
thermal tolerances in the record was based on studies
in which organisms had been acclimated to
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temperatures other than those that will occur at
Seabrook and that they were of questionable relevance
to an effort to estimate the impact of exposure to a
quick temperature increase such as will be experienced
by organisms entering the Seabrook discharge. He
was also concerned that some studies noted lethal
temperature limits below those of the Seabrook
discharge even though these studies generally involved
gradual temperature increases. The RA felt that,
together, the lack of thermal data and the lack of
information about numbers of organisms exposed made
it impossible to determine the overall direct impact of
the plant. On the recommendation of the panel,
however, I find that, given the small area to be
impacted with a delta-T greater than 5°F, it is
reasonable to conclude that local indigenous
populations will not be significantly affected.
B. ect Under Backflushing Condition
The RA found that the record did not contain an
adequate discussion of the thermal effects of the intake
operating as a discharge during backflushing or of the
entrapment potential of the diffuser acting as an
intake. Upon review of the record | found it
inadequate as to the effect of backflushing.
Specifically, I foune that there was no information in
the record on the vertical structure of the backflushing
plume, and therefore the three-dimensional plume
structure could not be developed from the information
in the record. Hence, estimates of exposures of
plankton and other organisms to the various
temperature regions of the backflushing plume could
not be established. I therefore issued a Request for
Information, requesting PSCo to supplement the
record with respect to these matters and offering the
JA-92
parties an opportunity to submit comments and
requests for a hearing. Affidavits were submitted by
PSCo, NHAG, EPA and SAPL. SAPL submitted a
request for a hearing, which is dealt with below.
During backflushing, heated effluent discharged from
the intake at the far site could, under occasional
meteorological and hydrological conditions, cause a 3°-
4°F rise for about 3-6 hours twice a month around the
Outer Sunk Rocks (less often during the winter). Such
a small increase for such short time periods should
result in no biologically significant lethal or sublethal
effects on the communities in the area of the Sunk
Rocks. The discharge will not affect benthos in the
vicinity of the backflush because of the buoyant nature
of the plume. Nekton should for the most part be able
to avoid lethal temperature elevations in the discharge
plume, though some fish may be killed upon start-up of
the backflushing operations. There is no reason to
believe, however, that such fish kills, if they occur, will
be in numbers « »*ficiently large to cause an imbalance
in the indigenous population, even taking into account
the other stresses upon the affected species.
Plankton could suffer lethal or sublethal effects as a
result of entrainment in the higher temperature
regions of the backflushing plume. However, the
volumes of water which will be heated sufficiently to
cause these effects are small. Moreover, the number of
plankton killed by passage through the plant will be
considerably lower during backflushing than during
normal operations, due to the decreased flow. A
review of the record convinces me that the impact of
backflushing on plankton will be insignificant.
JA-93
Regarding Mya larvae, in response to the Request for
Information, PSCo submitted a calculation indicating
that 70 bushels of Mya would be destroyed indirectly
due to the effects of entrainment of larvae in the
backflushing plume during the month of maximum
impact. PSCo made the assumption that this loss
would be distributed evenly over the 2500 acres of clam
flats between southern Maine and _ northern
Massachusetts and calculated that only 0.12% of the
Mya harvest in the Hampton-Seabrook area during
1975-6 would be destroyed. Also, in Draft Technical
Report VII-3, PSCo’s consultant made similar
calculations with respect to normal operations and
concluded that normal operations would result in
destruction of only 0.4% of the Hampton-Seabrook
1975-6 harvest. These calculations are open to doubt
because the survival ratios used would not allow the
maintenance of a Mya population at equilibrium in the
Hampton-Seabrook estuary.
Destruction of Mya larvae could result from
entrainment through the plant during normal and
backflushing operations and entrainment in the
thermal plume during normal and_backflushing
operations. Draft Technical Report VII-3 made a
reasonable estimate of Mya mortality due to through-
plant entrainment as 83 x 109 larvae. As indicated
above, larval mortality due to plume entrainment
during normal operations would be insignificant. It is
reasonable to assume that backflushing will occur three
times each summer when there are larval Mya
densities of any significance, and that larval Mya
densities at those times will be 2500/m°*. Assuming
that the average backflushing flow is one-half that of
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the normal flow rate, it can be calculated that about 5 x
109 Mya larvae would suffer mortality due to through-
plant entrainment during the three backflushing
operations.
Regarding entrainment in the backflush plume, in the
absence of experimental data to the contrary it is
reasonable and probably conservative to assume, as
Bosworth did in his supplemental Affidavit, that Mya
larvae entrained in the backflush plume will be killed if
subjected to a temperature greater than 79°>>>>>>>
F. From the equations provided in the suppiemental
Affidavit of MacPherson it can be calculated that at a
delta-T of 56°F approximately 12 x 109 Mya larvae will
be killed by entrainment in the backflush plume during
the three backflushing operations.
Thus the mortality of Mya larvae from all sources
related to the Seabrook operations would be
approximately 1 x 10!!. The total seasonal production
of Mya larvae in the neritic band in the vicinity of the
Seabrook cooling system is reasonably estimated in
Draft Technical Report VII-3 as 2 x 10!2 larvae. Thus
the larvae killed would be about 5% of the larvae in the
neritic band in the vicinity of Seabrook. If it is
assumed that destruction of Mya larvae would result in
destruction of the same proportion of adult clams, the
Seabrook operations would be expected to destroy
approximately 5% of the standing crop of Mya in the
Hampton-Seabrook area. (This figure is of the order of
magnitutde of the figure arrived at by use of an
entrainment model discussed elsewhere in_ this
decision.) This 5% figure represents a considerable
over-estimate because larvae settle in densities much
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greater than the final density of adult populations.
Considering that a single adult clam, which may have a
life span of 3-4 years, releases several million eggs per
spawning and my spawn several times each year, a loss
of this order is not expected to have a significant
impact on local populations.
I note that there appears to be serious over-cropping of
Mya larvae in the Hampton-Seabrook area, which could
doubtless be controlled through appropriate licensing
laws. The effects of the Seabrook plant will not have
any significant impact on the number of clams
recruited to the Hampton-Seabrook flats or other
estuaries. The over-cropping of clams in Hampton-
Seabrook could have an effect on recruitment of clams
to other areas, but probably does not have much impact
on recruitment to Hampton-Seabrook itself. The
evidence indicates that tidal flushing is rapid, with
complete flushing in one one or two tidal cycles, so that
reproductive products from the Hampton-Seabrock
flats will be washed out of the estuary. However, it
must be stressed that if there is any threat to
successful recruitment of clams to other areas, the
threat would be posed by the overcropping and not by
the plant.
In connection with backflushing, I note that the effect
of backflushing, particularly the effect on the Sunk
Rocks area, can to some extent be mitigated by
avoiding backflushing during adverse meteorological
and hydrological conditions. While the Determinations
do not expressly require backflushing to be avoided at
times of adverse meteorological conditions, I note that
Condition I(C)(6) provides that NPDES permits issued
from time to time in regard to the discharge will
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contain such further limitations or be modified to
contain such further limitations on the thermal
component of the discharge as the results of available
information indicate to be necessary to assure the
protection and propagation of a balanced indigenous
population. I hereby direct the RA to give due
consideration to the development of further conditions
pursuant to this clause. Specifically, 1 understand and
interpret Condition I(C)(6) as meaning that the
NPDES permit as issued for the plant will contain
appropriate limitations in regard to the avoidance of
backflushing at times of adverse meteorological and
hydrological conditions.
C. Cold Shock
The RA “granted” a finding requested by SAPL that
unexpected shutdowns of the diffuser would cause
measurable impacts on the balanced indigenous
population (“cold shock”), “in view of [his] findings
concerning lack of information on the thermal effects of
the diffuser on plankton, and for similar reasons....” It
is not clear whether the RA meant to find that cold
shock would in fact occur or whether he meant simply
that he had inadequate evidere to decide the question,
but in either event I disagree. Cold shock requires that
an organism maintain itself in the warm environment
long enough to become acclimated and then be quickly
exposed to cold water. As PSCo points out, plankton
could not resist the current that flows away from the
diffuser; once in the plume, they would experience only
gradual temperature decreases. The high velocity of
the discharge should prevent fish from inhabiting, and
therefore becoming acclimated to, the plume areas of
highest temperature, a prerequisite for cold shock.
Because of this velocity, fish are unlikely to become
JA-97
acclimated to a temperature greater than 5° above that
to which they would be exposed during shutdown.
Generally, a decrease of 15° to 25°>>>>>>> F is
necessary for fish to be killed by cold shock. Benthic
organisms would not be exposed to a _ rapid
temperature decrease because the thermal plume
rarely impinges on the bottom and will result in
temperature increases on the benthic community of, at
most, 1°F or 2°>>>>> F for short periods of time.
Therefore these organisms would not become
physiologically acclimated to the plume. The
statements made by witness Leger in Exhibit 37
reflect what is generally accepted by fish biologists
involved in thermal effects research. He concluded
that cold shock would be minimized at Seabrook.
Past instances of cold shock at thermal power plants
have occurred predominantly within surface discharge
canals. For example, Leger mentioned menhaden kills
in the discharge canal of the Oyster Creek plant in
New Jersey. Even surface discharges do not always
experience cold shock problems. Leger was able to
find no record of cold shock at any New England power
plant, including those with surface discharges at
Brayton Point, Cape Cod Canal, and Pilgrim Nuclear.
Submerged discharges such as that proposed for
Seabrook are much less likely to cause cold shock fish
kills. I conclude on the basis of design and past history
in New England that cold shock will be an infrequent
and insignificant problem at Seabrook, and that
unexpected shutdown of the diffuser will not cause
measurable impacts on the balanced indigenous
populations.
J A-98
D. Impact on Wildlife
The RA concluded that there was no evidence on the
question of whether there will be any impact on
wildlife, such as birds. This is not completely accurate
because there are data on the effect of the plant on the
biota on which birds feed. I have concluded elsewhere
in this decision that the effect of plant operations on
these biota will not be significant. On the basis of this
record, I find there is no anticipated effect on wildlife,
including birds, from this subsurface thermal
discharge. That being the case, I do not believe that
PSCo should be required to adduce further evidence in
this regard.
E. “No Measurable Rise”
The RA decided that he had correctly limited the
thermal discharge from backflushing and normal
discharge to “no measurable rise” at the Inner and
Outer Sunk Rocks, since (a) backflushing water might
be mixed with water at the “highest naturally
occurring temperature” and create “water above the
natural high;” (b) operational adjustments can be made
to manage the thermal impact; and (c) the information
on thermal impacts was inadequate. PSCo urged
adoption of a limitation of “no measurable rise above
naturally occurring temperature fluctuations of the
receiving water in and around the area of the Inner and
Outer Sunk Rocks.”
On review of the evidence in the record as to the effect
of temperatures on the Sunk Rocks biota, I find that
the RA’s criterion of “no measurable rise” was too
stringent. Taken literally, this standard means that a
rise of as small as 1/10 of a degree (which would be a
“measurable rise’) could not be tolerated at the Sunk
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Rocks. Model studies predict slight temperature rises
at the Sunk Rocks during backflushing. Such rises
would not have an impact on indigenous populations
sufficient to cause an imbalance.
On the other hand, the standard suggested by PSCo
(that the temperature should not exceed naturally
occurring ambient temperature fluctuations of the
receiving waters in and around the area of the Inner
and Outer Sunk Rocks) is ambiguous. It is not clear
where the “ambient” temperature fluctuations would
be measured (vertically or horizontally) and during
what time periods they would be measured.
Both standards seem to be unsuitable for enforcement
purposes, since it is not apparent how compliance with
either standard could be measured. For instance, if
thermistors were placed at the Sunk Rocks there
would be no way of telling whether any rise in
temperature registered by them was due to natural
causes or to the impact of backflushing. The RA should
delete the “no measurable rise” criterion and should
replace it, if desirable, with some other enforceable
criterion appropriate for the protection of the Sunk
Rocks biota.
F. Baseline Data
The RA found that there was inadequate baseline data
and that this would hamper later efforts to study the
changes wrought by the plant for the purpose of taking
corrective action. I agree. I hereby direct the RA to
review the report of the technical and scientific panel in
this regard with PSCo and to require PSCo to develop
a plan to provide adequate baseline data which will be
acceptable to the RA.
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G. Conclusion
On the basis of the data in the record, as supplemented
pursuant to the Request for Information, and on the
recommendation of the panel whose advice I have
sought, I conclude that the discharge limitations
proposed for the far site will assure the protection and
propagation of a balanced, indigenous population of
fish, shellfish and wildlife in and on the receiving
waters. In coming to this conclusion I have considered
the effects of the entire cooling system, including
entrapment, entrainment, and discharge.
IV. The Intake (316
A. Design
After reviewing the evidence in the record on velocity,
the RA found insufficient evidence to conclude that the
1 fps velocity proposed for the intake was the best to
minimize entrapment, and suggested that diversion or
other means of avoiding fish entrapment may be
necessary. Velocity is only one of several factors
influencing entrapment by _ intakes. While fish
entrapment is reduced as velocity at the intake face is
decreased, the design of the structure is also critical.
Modifying the conventional velocity cap by extending
the upper and lower lips (to obtain a “T” structure)
reduces entrapment. Also placement in the water
column influences entrapment. Finally, the most
important factor is the location of the intake in relation
to the location of potentially entrapable organisms. I
find that all of these criteria, including intake velocity,
have been taken into account in designing the intake
structures.
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In an ultimate sense it is impossible to optimize
velocity, since the optimum velocity for one species at
one life stage may not be the optimum velocity for that
species at another life stage, or for some other species.
At different times of the year different species can be
expected to be susceptible to entrapment by the intake.
Consequently, designing for a single velocity cannot
protect all fish at all times. Moreover, as the RA points
out in his I.D., the entire range of values between 0.5
fps and 1.0 fps will be found within a very short
distance from the intake. To attempt to further refine
the velocity in this case is unnecessary and not likely to
result in any measurable reduction of entrapment loss
(which will be negligible in any event).
Moreover, because entrapment will be negligible (as
discussed elsewhere herein) I do not believe that the
intake structures need be further refined to provide
diversion or other means of avoiding entrapment. I|
note, however, that should this prove to be incorrect,
the Determinations require, in Condition II(H), that
NPDES permits issued from time to time in regard to
the cooling water intake structures must contain such
further limitations and requirements as available
information indicates to be necessary to minimize
adverse environmental impact.
RB. (1) Location - Entrapment
The RA found that even if the effects of the intake
alone (entrainment and entrapment) were considered,
the impact on many species was unknown and could be
significant. Specifically, the RA found that there was
inadequate information on actual migratory pathways
in and out of Hampton Harbor, and little evidence of
the actual overall abundance of the finfish species in
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the area potentially impacted, at either the near site or
the far site.
It is true that only limited data exist on the migratory
pathways of fish to and from Hampton Harbor.
However, fish migration is commonly diffuse and not
associated with a precise narrow path unless there is
some continuous physiographic characteristic for
orientation, such as the contour of a significant change
in depth. Both the Sunk Rocks and the intake areas
are point locations rather than _ continuous
physiographic characteristics, and migrating fish would
not be expected to consistently move through these
areas. Rather, they would more likely occur there only
through random migratory movements. Consequently
neither substantial entrapment nor disruption of
migratory movements can be expected. It is highly
unlikely that studies of fish migration, which would be
very expensive and time-consuming, would yield any
useful information with respect to the best location for
the intake structures. I cannot therefore conclude that
they are required in this case.
Moreover, I believe that the evidence in the record
indicates that entrapment is likely to be negligible.
That being the case, I cannot conclude that studies of
the actual abundance of finfish in the area are
necessary.
B. (2) Location - Entrainment of Mya
PSCo studied the extent to which Mya larvae would be
entrained by the intake by means of a model. Under
PSCo’s model the flow of water into the intake is
determined and compared with the flow of water in a
hypothethical area in the near-shore waters. The flow
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into the intake is assumed to be a box with a fixed
length of 1000’ and widths and depths which vary with
ambient current speed and density stratification. This
“entrainment box” represents the bounding
streamlines leading to the intake; all of the larvae in
this box are “entrained” per unit time. The number of
larvae in the entrainment box is calculated and
compared with the number of larvae in a hypothetical
volume (used as the assumed habitat of the Mya larvae)
which is 2 1/2 miles wide and 30 feet deep; the length of
this volume is determined by the ambient velocity
being considered.
The RA found that the assumption in the model of
uniform distribution of Mya larvae is unreliable in view
of the known patchiness of larvae. He also found that
current speed determines the width of the streamlines
of the intake flow in the model and could even lead to
repeated exposures to plant-induced stresses; thus, due
to greatly varying current levels and patchiness of
larvae, actual larval mortality might greatly exceed the
predicted 4.6%. The RA found on the one hand that
this impact could be potentially severe and on the other
hand that it was impossible to estimate what the
impact of a 4.6% mortality would be on adult
populations.
Mya larvae are acknowledged to be _ patchily
distributed; however, if the larvae are looked at over a
large enough time and space scale, the effect would
tend to be the same as uniform distribution. Over the
time and space scales used in PSCo’s mudel (which
were reasonable for Mya), it is valid to assume that
patchiness would tend to become integrated. That
being the case, there would be no point in trying to
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model patchiness because such an effort would not
yield significantly different results from the
calculations already furnished by PSCo.
The model is based on assumptions which are highly
conservative, for various reasons, and thus yields
results which are likely to exceed actual mortalities.
Mya in fact occupy a volume which is longer than the
hypothetical Mya habitat used in the model; in other
words, they occur to the north and the south of the
2 1/2 mile-wide box. ‘Thus, if for instance the model
says that 4.6% of larvae are entrained, in fact this is
4.6% of only a portion of available Mya larvae.
When the model is run with very slow currents, the
percent of larvae entrained rises until 100%
entrainment is approached. However, it is unrealistic
to assume that, in the hydrodynamic situation present
at the intake site, there will be a long period of slow
currents. Consequently the fear expressed by SAPL,
namely that under slow current conditions a large
percentage of Mya would be entrained, is unrealistic; it
ignores the tide, wind and density current conditions in
the Gulf of Maine. The problem is analogous to that of
patchiness. Considering only tidal currents, if a short
time period is examined, a slow current and high
percentage of larvae entrained are possibilities, but
over a longer time period slow currents will alternate
with fast currents; these flows will tend to average out
to a typical flow. The conditions assumed by PSCo
regarding typical flows are reasonable.
Also, the mode! breaks down at low current speeds
because it indicates that water would be entrained
from all directions in the Gulf of Maine—in other
words, that the intake would function as a drain in the
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bottom of a basin. This would not in fact happen, and
thus the high larval entrainment which the model
predicts under such circumstances will not occur.
While the model is a simple one of limited utility, it is
sufficient, because of the conservative nature of its
predictions. For instance, PSCo found that under
different density stratifications and_ plankton
distributions 2.9% to 4.6f Mya would be entrained. The
4.6% figure is in itself conservative because it
represents conditions in which Mya are oriented
toward the bottom of the entrainment box under
extreme summer stratification conditions. It is
unrealistic to suppose that such conditions would
continue for long periods of time, or that Mya would be
so oriented during the entire period of their journey
past the intake. Also the calculations were made for
the inshore site which has_ intake openings
approximately 24-31 feet below the surface (30 feet in
the model); at the offshore site the intake openings are
41-48 feet below the surface. It is difficult to envisage
entrainment over this entire depth. Thus for various
reasons the estimated 4.6% mortality can be expected
to be on the high side.
A more sophisticated model could be developed which
would take into account tides, wind and_ the
thermohaline circulation, but it is doubtful if the
estimate or its predictive value would be significantly
improved. A 4.6% reduction in larvae cannot be
expected to result in a 4.6% reduction of the adult
population because it does not take into account
compensatory mechanisms and density-dependent
limiting factors. Taking into account both the highly
conservative nature of PSCo’s model and the post-
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larval mortality of Mya, I conclude that entrainment of
Mya will have an insignificant effect on adult Mya
populations.
B. (3) Location - Entrainment of Icthyoplankton
The RA found that it is impossible to conclude whether
the near or far site would represent an advantage with
respect to entrainment of ichthyoplankton, and that the
overall effect of such entrainment on adult populations
is unknown.
The far site would offer an advantage with respect to
icthyoplankton since it lies in deeper water. ‘The
majority of eggs of many species are found near the
surface of the ocean and hence would escape
entrainment. Moreover, the far intake site is believed
not to be located in the immediate vicinity of unique
spawning beds for any species. That being the case,
post-larval recruitment of fishes from other areas
would reasonably be expected to offset any effects of
entrainment.
C. Diffuser Functioning as Intake __ During
Backflushing
The RA found the record inadequate with regard to
discussion of the effects of the entrapment potential of
the diffuser acting as an intake. Upon review of the
record I have concluded that it is not inadequate and
that the use of the diffuser as an intake during
backflushing is not likely to cause entrapment in any
degree more significant than the intake. ‘This is
because of four factors:
1. Entrapment problems can result because fish seek
shelter near a structure. However, the diffuser risers
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are small and provide less shelter than the intake
structure.
2. During a considerable portion of the backflushing
cycle (2 1/2 hours out of a six-hour cycle), the volume of
flow is only 38% of the normal flow.
3. The backflush cycle occurs only about 1.8% of the
time during the summer and less in winter.
4. The diffuser pipes are not too far from horizontal
(20°-25°>>>>>>>>) and thus, even without velocity
caps, the intake will be nearly horizontal.
I note that PSCo is required by Condition II(C) to use
an antifouling protective coating on the cooling water
intake structure, to discourage growth of organisms
which might attract browsing fish which would then be
susceptible to entrapment. I direct the RA to consider
whether a similar condition should be required with
respect to the diffusers to reduce possible entrapment
losses.
D. Conclusion
I find that the design and location of the intake at the
far site and of the diffuser functioning as an intake
reflect the best available technology for minimizing
adverse environmental impact. In coming to this
conclusion I have taken into consideration the effects of
the discharge as well.
IV. her Issues
A. Applicability of Section 403
NWF argues that the RA’s determination — to
J A-108
disapprove the Seabrook discharge is independently
sustainable under Section 403 of FWPCA. Section 403
prohibits issuance of a permit under Section 402, after
promulgation of guidelines estabished under Section
403(c), except in compliance with such guidelines.
Prior to the promulgation of such guidelines, a permit
may be issued under Section 402 if the Administrator
determines it to be in the public interest. Section
403(c) requires promulgation of guidelines for
determining the degradation of the waters of the
territorial seas, the contiguous zone, and the ocean,
which shall include, among other things, the effect of
disposal of pollutants on plankton, fish, shellfish and
wildlife; the effect of disposal of pollutants on marine
life, including changes in marine ecosystem diversity,
productivity, and stability and species and community
population changes; other possible locations and
methods of disposal or recycling of pollutants; and the
effect on alternate uses of the oceans, such as scientific
study. There are no currently applicable 403
guidelines, the ones promulgated in 1973 having been
revoked (38 F.R. 28613).
PSCo and the Utilities argue that Section 403 does not
apply to discharges of heat. This argument runs
counter to the express language of FWPCA. Section
403 applies to permits for “discharges”; this is a term
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