U.S. Water News Online
BUCHANAN, N.Y. -- A state appellate court has upheld a 2004 ruling about New York's regulatory power that sets up a battle between Indian Point and the Department of Environmental Conservation over how the nuclear plant must cool water before discharging it into the Hudson River.
In October 2003, Indian Point lawyers sought to invalidate the DEC's power to regulate the use of water in the operation of 227 industrial plants across the state, including Bowline in Haverstraw. Entergy claimed that the DEC had not properly advertised the regulations before they went into effect in 1974.
A panel of five judges unanimously agreed with a lower court ruling that Entergy's suit was filed too late.
"The statute of limitations expired 30 years ago," said Susan Taylor, the assistant state attorney general who defended the case brought by Entergy Nuclear Northeast, Indian Point's owner. "That's really good for a billion fish."
Opponents of Indian Point maintain that the plants are killing fish in great numbers when they are sucked into the site along with water to cool the plant, which creates heat as it generates electricity, and when warmer than normal water is returned to the river.
Entergy officials said the effect on the river is negligible because the water is returned to the Hudson close to its original temperature.
Regulators want Entergy to build cooling towers. Company officials have said they could cost $1.5 billion and aren't necessary.
Federal regulations allow companies to use river water to cool their equipment as long as they use screens and other technologies to reduce the destruction of marine life. Indian Point uses such screens. Companies also can replace the fish they kill, according to federal rules.
State Attorney General Elliot Spitzer called the ruling "a huge victory for the Hudson River and other New York waters that suffer damage when power plants and other industrial users withdraw massive amounts of water.
"Thanks to the existence of technological alternatives, power plants can cool their facilities without using vast quantities of water and killing billions of fish," he said.
Jim Steets, a spokesman for Indian Point, said company officials had not seen the decision and wouldn't comment on a possible appeal without reading it.
"We were anticipating it," Steets said of the ruling. "We'll proceed with making our case that the cooling towers are not a good fit for Indian Point and would not be an environmental benefit but actually an environmental negative."
Steets said the ruling was narrow and dealt only with the timeliness of the lawsuit.
"This doesn't go in the least to the substance of the cooling issue," Steets said. "It's just a single argument in a complex proceeding"
Victor Tafur, a lawyer for Riverkeeper, the environmental organization that was a party to the lawsuit, agreed that the decision was narrow but called it significant because of what it sets up.
"The regulations have been affirmed," Tafur said. "This has cleared the way to get to a real determination."
The DEC also hailed the decision, which Taylor said allowed the agency to do its job.
"(The) ruling was critical in upholding New York's ability to protect the Hudson River and water bodies throughout the state," Denise Sheehan, the DEC's acting commissioner, said in a prepared statement. "The Hudson River is one of the most important estuaries in the country, and this decision will ensure the continued protection of this and other precious aquatic resources."
Taylor said the effort to invalidate a public notice process from 30 years ago was just one of Entergy's legal strategies to slow down the review of its water-cooling operation.
Entergy has said the cooling towers would not be the most effective way to protect marine life.
No dates have been set for the DEC hearings on the renewal of Entergy's expired permit to use water from the Hudson. The plant's discharge permit expired in 1992, but it has been allowed to continue using the river.
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