On Oct. 1, a coalition of environmental organizations took legal actions in New Jersey and Delaware to require industrial facilities, including a nuclear power plant, on the Delaware estuary to reduce fish kills and limit pollution discharges.
Delaware Riverkeeper Network and the New Jersey Sierra Club filed a complaint in the Superior Court of New Jersey for Mercer County requesting an order demanding that the New Jersey Department of Environmental Protection (NJDEP) take action on a permit renewal application for the Salem Nuclear Generating Station.
Public Service Energy Group Nuclear LLP submitted its renewal application for a New Jersey Pollution Discharge Elimination System (NJPDES) permit for Salem in February 2006, but NJDEP has yet to make a determination on the application by either issuing a draft permit for public notice and comment, or by denying the permit, the groups said.
In a parallel action, the Delaware Riverkeeper Network, Delaware Audubon Society and Delaware Sierra Club filed for a Writ of Mandamus in Superior Court in Delaware to compel action by that state’s Department of Natural Resources and Environmental Control (DNREC). A renewal application for the Delaware City Refinery was submitted in 2002. While DNREC has been engaged in behind the scenes activity on the application, it has yet to make a determination on the application either by issuing a draft permit for public notice and comment, or by denying the permit, the groups said.
According to Maya van Rossum of the Delaware Riverkeeper: “Salem and the Delaware City refinery are having a devastating and lasting impact on the Delaware Estuary’s ecosystem.”
These lawsuits are one of many steps that a coalition of organizations are undertaking as part of their “Stop the Fish Kills” campaign, targeting the Salem plant, the Delaware City Refinery, and PSEG’s Mercer Generating Station. Because of long delays (seven years at Salem, 11 years at the Delaware City Refinery, and two years at Mercer), these facilities have been allowed to utilize outdated cooling water intake structures that kill billions of fish every year, the groups said.
Mercer is a 747-MW coal-, gas- and oil-fired power plant located in west-central New Jersey along the Delaware River, and it is operated under PSEG Fossil LLC. Salem is a two-unit, 2,357-MW nuclear facility operated under PSEG Nuclear LLC. These companies are units of Public Service Enterprise Group (NYSE: PEG).
Through their legal action, Delaware Riverkeeper Network and the New Jersey Sierra Club seek to spur NJDEP to issue a draft permit, and to include in such permit a requirement that PSE&G replace its “once-through” cooling water intake system with a Closed-Cycle Recycling System, which could reduce kills by nearly 98%, and which they said represents the “best available technology” required by Section 316(b) of the Clean Water Act.
PSEG says this process has been protracted, and could get expensive
Public Service Enterprise Group said in its July 30 Form 10-Q report about Clean Water Act issues: “One of the most significant NJPDES permits governing cooling water intake structures at [PSEG Power LLC] is for Salem. In 2001, the NJDEP issued a renewed NJPDES permit for Salem, expiring in July 2006, allowing for the continued operation of Salem with its existing cooling water intake system. In 2006, Power filed with the NJDEP a renewal application allowing Salem to continue operating under its existing NJPDES permit until a new permit is issued. Power prepared its renewal application in accordance with the FWPCA Section 316(b) and the 316(b) rules published in 2004.”
The Form 10-Q added that as a result of several legal challenges to the 2004 version of the 316(b) rule by certain northeast states, environmentalists and industry groups, the rule has been suspended and has been returned to the EPA to be consistent with a 2009 U.S. Supreme Court decision which concluded that the EPA could rely upon cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations.
In late 2010, the EPA entered into a settlement agreement with environmental groups that established a schedule to develop a new 316(b) rule by July 2012. In April 2011, the EPA published a proposed rule to establish marine life mortality standards for existing cooling water intake structures with a design flow of more than two million gallons per day. In July 2012, the EPA and environmental groups agreed to delay the deadline to June 2013 for finalization of the rule. On June 27, the EPA and environmental groups agreed to further extend the deadline to Nov. 4, 2013, the company pointed out.
“The results of further proceedings on this matter could have a material impact on Power’s ability to renew permits at its larger once-through cooled plants, including Salem, Hudson, Mercer, Bridgeport and possibly Sewaren and New Haven, without making significant upgrades to existing intake structures and cooling systems,” the Form 10-Q said. “The costs of those upgrades to one or more of Power’s once-through cooled plants would be material, and would require economic review to determine whether to continue operations at these facilities. For example, in Power’s application to renew its Salem permit, filed with the NJDEP in February 2006, the estimated costs for adding cooling towers for Salem were approximately $1 billion, of which Power’s share would have been approximately $575 million. These cost estimates have not been updated. Currently, potential costs associated with any closed cycle cooling requirements are not included in Power’s forecasted capital expenditures.”