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
Entergy officials said the effect on the river is negligible
because the water is returned to the Hudson close to its original
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
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
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
"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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