# Petitioners Brief — Utility Water Water Act Group Group v. Riverkeeper, Inc. (Nos. 07-597, 07-588, 07-589) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0048%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 2009 ## Text 73 Iu the Supreme Court of the Anited States ENTERGY CORP., PSEG LLC AND PSEG NUCLEAR LLC, AND UTILITY WATER ACT GROUP, Petitioners, Vv. RIV" RKEEPER, INC., et al., Respondents. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ——- BRIEF OF PETITIONER UTILITY WATER ACT GROUP KRISTY A. N. BULLEIT Counsel of Record HUNTON & WILLIAMS LLP 1900 K STREET, N.W. WASHINGTON, DC 20006-1109 (202) 955-1547 WILSON-EPES PRINTING CO... INC. — (20?) 785-0096 — WaSHINGTON.D C 20002 Counsel for Petitioner JULY 14, 2008 } ’ " ~~ “al 0 gw af a ‘ i QUESTION PRESENTED FOR REVIEW Whether Section 316(b) of the Clean Water Act, 33 U.S.C. §1326(b), authorizes’ the Environmental Protection Agency (“EPA”) to compare costs with benefits in determining the “best technology available for minimizing adverse environmental impact” at cooling water intake structures. PARTIES TO THE PROCEEDING The Utility Water Act Group (““UWAG’”) is a petitioner in this Court and was a petitioner in the court of appeals. PSEG Fossil LLC, PSEG Nuclear LLC, and Entergy Corporation are petitioners in this Court and were petitioners in the court of appeals. Appalachian Power Company and the Illinois Energy Association, which participated below, are not parties to this appeal. The United States Environmental Protection Agency is a respondent in this Court and was a respondent in the court of appeals. The following parties are respondents in this Court and were petitioners in the court of appeals: Riverkeeper, Inc., Natural Resources Defense Council, Waterkeeper Alliance, Soundkeeper, Inc., Scenic Hudson, Inc., Save the Bay-People for Narragansett Bay, Friends of Casco Bay, American Littoral Society, Delaware Riverkeeper Network, il Hackensack Riverkeeper, Inc., New York/New Jersey Baykeeper, Santa Monica Baykeeper, San Diego Baykeeper, California Coastkeeper, Columbia Riverkeeper, Conservation Law Foundation, Surfrider Foundation, State of Connecticut, State of Delaware, Commonwealth of Massachusetts, State of New Jersey, State of New York, and Commonwealth of Rhode Island. The industry parties, environmental groups, and States jointly petitioned to intervene in the other petitioners’ cases in the court of appeals on August 27, 2004. Pursuant to Rules 24.1 and 29.6, there is no change to the disclosure statement previously filed by the Utility Water Act Group. Page QUESTION PRESENTED FOR REVIEW. .............. i PARTIES TO THE PROCEEDING......................00. i TABLE OF CITED AUTHORITIES ..........0.00.000..... vi RTE semniiisstvsoneinstisiadesniiudianninnatisniadinieneiens 1 ITT ss nninindcodtessss ncnsibiciguanisbinbapnaatshduibiaiaiinetioue 1 STATUTORY AND REGULATORY PROV BBS EN VOLVED ..0cccccescsveccesesssescesescosessees 1 STATEMENT OF THE CASE ................cccccscssssssseees 2 I. ee connie 5 A. Cooling Water Intake RN cicdscisciesleenintnasiaesdnneinrinienitanginens 5 B. I ge 11 C. EPA’s Long-Standing Approach To § 316(b) Implementation ............. 15 II. Sy i I iaiiniistecpntiecttiestuileiansidaies salads 16 A. ES Si hi hn cntcnmiiaseniatiiaaieedieeda 16 B. National Standarde.......................006 22 C. Site-Specific Standards..................... 23 iii TABLE OF CONTENTS III. . SUMMARY OF THE ARGUMENT iv III als eaeiatinmesisiiibamiels SPUIET, sictiiidnssinitcninniitinatsinnncinsnsinneiitnneninetooniee I. II. EPA’s Interpretation of § 316(b) as Authorizing Cost-Benefit Analysis Is BEOREIOE BO TIOTIIOINGO.0....cccccccscsncescccsesecsseses A. The Second Circuit’s Interpretation Is Not Dictated by Statutory Language or ici tadi cnainnneaiinbinaniipannnianiins 1. The Wording of Section 316(b) Does Not Foreclose Cost-Benefit FE itinnctnieeraiitaietannmmniin 2. The Second Circuit's Reliance on Crushed Stone Was Misplaced ............. b. The Phase II Rule Embodies the Same Reasonable Policy Choir: EPA Has Made for the Past 30 EPA Reasonably Concluded _ that § 316(b) Permits Site-Specific Cost- BemOTit COMMIGOTALION........00cccsccccccrsceccessessees CPC eee 31 Vv A. Other Clean Water Act Sections Do Not Foreclose Site-Specific Cost-Benefit Analysis Under i SPIN svicnsuiesntdecniidieissscnansnnedidaidiaulaald 45 B. The Relationship Between § 316(a) and § 316(b) Supports EPA’s Use of Site-Specific Cost- Benefit Analysis Under § 316(b) ...... 48 C. The Record Supports EPA’s Reading of § 316(b) .....................000008 51 1. Impingement and Entrainment Vary Widely Based on Site- Specific Conditions................. 51 2. The Availability, Effectiveness, and Cost of Intake Technologies Vary WEGCEY BBY BIRO 0. ccccccccccscsccsccsces 54 CPST Because special procedures are required to gauge even an adult organism's condition prior to impingement (a task that 1s difficult or impossible for earlier life stages), EPA's national assessment of intake impacts largely assumed that all losses are caused by the intake.?6 certain amount of “cropping,” to set their own priorities. See, e.g., EPA’s Response to Comment 4188, J.A. 355; Pet. App. 269a (69 Fed. Reg. 41,608) (cost-benefit alternative provides flexibility comparable to purely site-specific approach); See UWAG Phase | Comments 85. See also UWAG Phase II Comments 101-03 (providing support for exclusion of invasive species from protection under § 316(b)). 25 In one analysis of 40 impingement surveys, 70% of the organisms collected were dead before they were impinged. Cherry et al., Effects of Impingement/Entrainment at the Kanawha River Plant, DCN:1-3007-BE at 6. See also Potter, Assessment of the Effects of Impingement and Entrainment on the Fish Community of the New River, Virginia, DCN:1-3056. BE at 20 (March 1978) (93.9% of 842 fish collected were dead pnor to impingement). 26 For the very early life stages subject to entrainment, EPA made an effort to factor in the extremely high natural mortality rates those life stages typically expenence’ by (continued...) 54 But EPA knew that requiring application of the technology most capable of reducing impingement and entrainment would do nothing to re-animate organisms already dead or dying from natural causes. Second, the Agency understood that many organisms survive impingement and entrainment unscathed. That is why EPA developed national standards for “impingement mortality” rather than impingement per se. Although EPA chose not to do the same for entrainment, it did allow facilities to gauge entrainment survival if they apply for site. specific limits based on cost-benefit balancing. See supra n.16. 2. The Availability, Effectiveness, and Cost of Intake ‘Technologies Vary Widely By Site The availability, effectiveness, and cost of intake technologies that reduce impingement or entrainment, or improve organism survival, also vary with existing site and facility constraints and the biological and hydrological conditions at the site, calculating the number of “equivalent adults” represented by entrainment losses. See, e.g., Pet. App. 17la-172a (69 Fed. Reg 41,586). EPA assumed, however, that the actual organisms entrained were alive upon arrival) and thus would have contributed in some fashion to equivalent adult production but for the intake structure. 55 as EPA recognized. See Pet. App. 247a-252a, 289a- 295a (69 Fed. Reg. 41,603-04, 41,612-13). For example, cylindrical wedgewire screens can reduce impingement mortality by 80-95% for fish and shellfish and, if required, reduce entrainment by 60- 90% under certain conditions. Pet. App. 245a-246a (69 Fed. Reg. 41,602). However, such screens work best where in-stream flow conditions are sufficient to carry away organisms removed from the screen, so they do not become re-impinged. Pet. App. 529a (40 C.F.R. § 125.99(a)(ii)); see also EPA’s Response to Comment 979. And barrier nets, which are successful at reducing impingement mortality by 80- 90%, are susceptible to damage by strong currents, debris, and icing and thus may be unsuitable for certain sites but very effective at others. EPA, Technical Development Document for the Final Section 316(b) Phase II Existing Facilities Rule (EPA 821-R-04-007) (DCN:6-0004) (Feb. 12, 2004) (“EPA TDD”) 4-14. Even where site conditions allow a technology to reduce impingement and entrainment, it may create other environmental and social problems. For example, large in-stream screens or nets may create hazards to navigation. Pet. App. 447a-449a (69 Fed. Reg. 41,649-50). Enlarging intake structures to reduce velocity may require construction in shoreline habitat. /d. As we have already pointed out, changes to the cooling system often create significant adverse side-effects, most notably energy penalties and increased air emissions. Pet App. 256a-261la (69 Fed. Reg. 41,605-06). In some cases, the thermal discharge from the facility provides unique habitat 56 for an important species. Curtailing that discharge with a closed-cycle system can have disastrous results for the species in question.2? As the environmental impacts of intake technologies vary from site to site, so do the costs. See, e.g. EPA TDD, 1-1 to 1-13 (cost estimates for retrofitting wedgewire screens at fossil-fueled plants show 36-fold difference in cost depending on site- specific factors); EPA TDD, Table 2-21 and 2-22 (showing 115-fold difference in cost of retrofitting fine mesh traveling screens with fish returns, depending on site-specific factors). The capital, energy, and operating and maintenance costs of retrofitting closed-cycle cooling, which is particularly costly and difficult for existing facilities, is highly dependent on site-specific factors. Pet. App. 256a (69 Fed. Reg. 41,605) (capital costs for cooling towers even for new plants would range from about $170,000 to $12.6 million per plant annualized, depending on flow); 68 Fed. Reg. 13,527 (Mar. 9, 2003) (citing DOE study showing site-specificity of retrofit costs). Moreover, EPA was concerned that the small sample of plants it used to estimate retrofit 27 See, e.g., Fla. Dept. Industrial Wastewater Comments on Phase II Rule 2 (Aug. 7, 2002), J.A. 262-63 (describing adverse impacts of thermal discharge curtailment = on endangered manatees, which seek out thermally enriched waters as habitat); see also FPL Comments on the Proposed 316(b) Rule for Existing Sources, Public Comment 1.051 (Aug. 7, 2002) 6. o7 costs was unlikely to capture the full cost. Pet. App. 259a (69 Fed. Reg. 41,605-06). In sum, faced with the Herculean task of developing national standards to address the complex, interlocking, and _ inherently local environmental and technical issues presented by § 316(b), the Agency considered a number of approaches. It chose the approach that offered some measure of uniformity, while also providing to facilities and regulators the safety valve of considering the site-specific factors that drive both the “adverse environmental impact” likely to occur and the availability, performance, and cost of intake technologies for reducing that impact. CONCLUSION In the broadest sense, cost-benefit balancing is a fundamental tool of logical decision-making. It allows the decisionmaker to use all the available information to make the most reasonable choice for achieving an_ objective. Courts, governments, markets, industries, and ordinary people rely on it constantly, whether explicitly or implicitly, to make rational decisions. Now, for the first time, the Second Circuit has held that cost-benefit analysis is forbidden even where it is consistent with achieving a statutory objective and the statute does not expressly prohibit it. This is folly. The court was wrong to substitute its own highly selective interpretation for EPA's eminently reasonable one. 08 This Court should hold. that EPA’s consideration of costs and benefits in deciding what is “best technology available” on a national basis and establishing performance standards based thereon was within its statutory authority. Likewise, this Court should hold that EPA was within its authority in permitting site-specific determinations of “best technology available” when the cost of meeting national standards would be significantly greater than the benefits. The portions of the Second Circuit’s judgment remanding the national performance standards and site-specific cost-benefit provisions of the Phase II Rule (which are described in greater detail in Section IV of the Entergy/PSEG Brief) should be reversed. Respectfully submitted, KRISTY A. N. BULLEIT Counsel of Record HUNTON & WILLIAMS LLP 1900 K STREET, N.W. WASHINGTON, DC 20006-1109 (202) 955-1547 Counsel for Petitioner JULY 14, 2008 UWAG APPENDIX Al 33 U.S.C. § 1311(g) (Clean Water Act § 301(g¢) (g)Modifications for certain nonconventional pollutants (1) General authority The Administrator, with the concurrence of the State, may modify the requirements of subsection (b)(2)(A) of this section with respect to the discharge from any point source of ammonia, chlorine, color, iron, and total phenols (4AAP) (when determined by the Administrator to be a pollutant covered by subsection (b)(2)(F) of this section) and anv other pollutant which the Administrator lists under paragraph (4) of this subsection. (2) Requirements for granting modifications A modification under this subsection shall be granted only upon a showing by the owner or operator of a point source satisfactory to the Administrator that— (A) such modified requirements will result at a minimum in compliance with the requirements of subsection (b){1)(A) or (C) of this section, whichever is applicable; (B) such modified requirements will not result in any additional requirements on any other point or nonpoint source; and A2 (C) such modification will not interfere with the attainment or maintenance of that water quality which shall assure protection of public water supplies, and the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities, in and on the water and such modification will not result in the discharge of pollutants in quantities which may reasonably be anticipated to pose an unacceptable risk to human health or the environment because of bioaccumulation, persistency in the environment, acute toxicity, chronic’ toxicity (including carcinogenicity, mutagenicity or teratogenicity), or synergistic propensities. (3) Limitation on authority to apply for subsection (c) modification If an owner or operator of a point source apphes for a modification under this subsection with respect to the discharge of any pollutant, such owner or operator shall be eligible to apply for modification under subsection (c) of this section with respect to such pollutant only during the same time period as he is eligible to apply for a modification under this subsection. (4) Procedures’ for listing additional pollutants A3 (A) General authority Upon petition of any person, the Administrator may add any pollutant to the list of pollutants’ for which modification under this. section is authorized (except for pollutants identified pursuant to section 1314 (a)(4) of this title, toxic pollutants subject to section 1317 (a) of this title, and the thermal component of discharges) in accordance with the provisions of this paragraph. (B) Requirements for listing (i) Sufficient information The person petitioning for listing of an additional pollutant under this subsection shall submit to the Administrator sufficient information to make the determinations required by this subparagraph. (ii) Toxic criteria determination The Administrator shall determine whether or not the pollutant meets the criteria for listing as a toxic pollutant under section 1317 (a) of this title. (iii) Listing as toxic pollutant If the Administrator determines’ that the pollutant meets the criteria for listing as a toxic pollutant under section 1317 (a) of this title, the Administrator shall list the A4 pollutant as a toxic pollutant under section 1317 (a) of this title. (iv) Nonconventional criteria determination If the Administrator determines that the pollutant does not meet the criteria for listing as a toxic pollutant under such _ section’ and determines that adequate test methods and sufficient data are available to make the determinations required by paragraph (2) of this subsection with respect to the pollutant, the Administrator shall add the pollutant to the list of pollutants specified in paragraph (1) of this subsection for which modifications are authorized under this subsection. (C) Requirements for filing of petitions A petition for listing of a pollutant under this paragraph— (i) must be filed not later than 270 days after the date of promulgation of an applicable effluent guideline under section 1314 of this title; (ii) may be filed before promulgation of such guideline; and (iii) may be filed with an application for a modification under paragraph (1) A5 with respect to the discharge of such pollutant. (D) Deadline for approval of petition A decision to add a pollutant to the list of pollutants for which modifications under this subsection are authorized must be made within 270 davs after the date of promulgation of an applicable effluent guideline under section 1314 of this title. (E) Burden of proof The burden of proof for making the determinations under subparagraph (B) shall be on the petitioner. 33 U.S.C. § 1371(c) (Clean Water Act § 511(c)) (c) Action of the Administrator deemed major Federal action; construction of the National Environmental Policy Act of 1969 (1) Except for the provision of Federal financial assistance for the purpose of assisting the construction of publicly owned treatment works as authorized by section 1281 of this title, and the issuance of a permit under section 1342 of this title for the discharge of any pollutant by a new source as defined in section 1316 of this title, no action of the Administrator taken pursuant to this chapter shall be deemed a major Federal action A6 significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969 (83 Stat. 852) [42 U.S.C. 4321 et.seq.]; and (2) Nothing in the National Environmental Policy Act of 1969 (83 Stat. 852) shall be deemed to— (A) authorize any Federal agency authorized to license or permit the conduct of any activity which may result in the discharge of a pollutant into the navigable waters to review any effluent limitation or other requirement established pursuant to this chapter or the adequacy of any certification under section 1341 of this title; or (B) authorize any such agency to impose, as a condition precedent to the issuance of any license or permit, any effluent limitation other than any such limitation established pursuant to this chapter. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0048%3A13. 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