TESTIMONY OF EDSON G. CASE, ACTING DIRECTOR, OFFICE OF NUCLEAR
REACTOR REGULATION, NUCLEAR REGULATORY COMMISSION, ACCOMPANIED BY HAROLD
R. DENTON, DIRECTOR, DIVISION OF SITE SAFETY AND ENVIRONMENTAL ANALYSIS;
AND RICHARD C. BROWNE, ASSISTANT DIRECTOR, HEARING DIVISION, OFFICE OF
EXECUTIVE LEGAL DIRECTOR
Mr. CASE. Thank you, Mr. Chairman.
Mr. Chairman and members of the subcommittee, my name is Edson G.
Case, and, along with my colleagues, I am here to discuss the NRC's
responsibilities and programs in the regulation of domestic commercial
nuclear powerplants and to answer any questions you may have.
In the interest of saving time, Mr. Chairman, and with your
permission, I would like to enter our statements for the record as if
read, and, orally, briefly summarize the salient points of Mr. Denton's
testimony, and then we would be pleased to answer any questions you may
have.
Mr. GINN. Without objection, so ordered. Please proceed.
Mr. DENTON. Several matters were brought up in the last couple of
days that I would like to cover briefly. They are mentioned in my
testimony.
One is site selection. I certainly agree with a lot of things that
have been said about the importance of site selection.
I look back on the number of reviews that we have done on
applications in the past 2 years, and I have found that we have rejected
about 25 percent of the applications we have received, in part or in
whole, because of an inadequate description of the alternative sites
that were available.
Our requirements for selecting sites include safety, environmental
matters, social and economic matters. And the tradeoffs among them are
involved.
As an example of the type of site-selection procedure that is being
done today, a New York State utility recently spent $750,000 looking at
available sites within that State. This involved looking at
reconnaissance-level information, that is, information that is normally
available in public reports, Mr. Chairman, without doing detailed site
investigations.
Once a site is picked, even though much is known publicly about the
site, you quite often discover new facts about that site. To some it
appears that the site has undesirable characteristics compared to other
sites. But, quite often, it is merely the fact that the other sites
have not been investigated as thoroughly as the preferred site that was
selected.(())
The Commission is considering an early site review procedure which I
think would be an important step toward resolving some of these
problems. It will permit the Commission to consider a proposed site all
the way through adjudicatory proceedings -- either by a utility or by a
State -- long in advance of the actual selection of the plant to go on
that site. I think this is one way the important issue of siting can be
decided before big investments are made and decisions are already put in
motion, such as happened at Seabrook.
There are a couple of other areas I would like to comment on. One is
the second memorandum of understanding that we have with EPA. The
memorandum has been in effect a little over 1 year and is working very
well.
For the applications that we have received since the signing of the
second memorandum, we and EPA are making site visits together. Their
technical staffs and ours are reviewing the same information. They are
providing timely decisions on water quality matters concurrent with our
decisions on the suitability of proposed powerplant sites.
As you know, EPA has delegated their authority to a number of States
in this area. About 15 of these States have indicated an interest in
signing a similar memorandum of understanding with us, but we have not
achieved an actual agreement to date.
We have, however, held joint hearings with two States, Maryland and
New York, on proposed powerplant sites. And we are moving toward a
joint hearing in the State of Massachusetts.
There are several other facilities which have the same uncertainty
that Seabrook has, namely that we approved the site or are in the
process of approving the site on the basis of once-through cooling, and
a final determination has not yet been received from EPA.
What we are doing where it appears appropriate, such as Sterling site
in New York, is relooking at the suitability of that site with cooling
towers. That means we are comparing the Sterling site with cooling
towers to the other available alternatives that would also have towers.
And we are looking at the cost-benefit of Sterling -- assuming both with
and without cooling towers -- before we would proceed to issue a
construction permit.
That completes my remarks, Mr. Chairman.
Mr. GINN. Thank you.
Mr. Browne.
Mr. BROWNE. Mr. Chairman. I have no remarks for the committee. I
would be pleased to answer any questions.
Mr. GINN. Mr. Case.
Mr. CASE. No statement, sir, I would be pleased to answer any
questions.
Mr. GINN. You refer to the memoranda of understanding between EPA
and NRC that has been issued by the two agencies, hopefully to eliminate
duplications and delays in the procedures. Do you see an improvement in
the process as a result of that memorandum?
Mr. DENTON. Very definitely. Our main problem is one of timing. We
had a number of reviews underway when the Water Quality Act was passed.
And we had done balancing under NEPA to determine the type of cooling
system, but we had not done the 361(a) and (b) type of balancing.(())
With approval of the memorandum, we are receiving in one application
the type of information that both we and EPA require. And they are
participating on a time scale, Mr. Chairman, so that they can give us
their determination prior to our having to make a final determination on
site suitability. So I think it very definitely improved the process.
Mr. GINN. Do you anticipate joint hearings within EPA and NRC?
Mr. DENTON. That is being discussed. We have not yet actually had
such a hearing. The differences between our processes may interfere
with that to some extent.
Mr. GINN. Do you think if you can work out the problems that joint
hearings would be helpful in trying to cut down on the time that it
takes to complete the process?
Mr. DENTON. Yes. We have been working with one of the regions to
see what areas we might have joint hearings in. I think it has a very
high potential for the type of early resolution that Mr. Roisman
mentioned, for example.
Mr. GINN. What kind of expertise does the NRC have, Mr. Denton, to
make the detailed kinds of environmental analyses that are required in
these cases?
Mr. DENTON. We have an in-house staff of aquatic biologists, and
economists, and hydrologists. We have approximately 30 people within
the Division, almost all of whom have advanced degrees in these fields.
We also rely heavily on Oak Ridge National Laboratory and Argonne
National Laboratory for assistance in preparing the biological parts of
the statements.
Two of your panelists, Dr. Goodyear and Dr. Coutant, have
participated in our preparation processes in the past.
Mr. GINN. In view of the statistics that were just given to us by
the previous witness as to the urgency of moving forward, do you have
any comments on what Mr. McCormack had to say as it relates to NRC and
with regard to speeding up the process?
Mr. CASE. Mr. Chairman, I might comment on that.
Perhaps you heard the President last night indicate that he thought
it would be beneficial if a study were undertaken of the NRC licensing
process to see if improvements could be made. The kind of thoughts that
we have for such a study would include some of the initiatives that we
have already taken under our present legal authority; that is,
preapproval, to the extent possible, of reactor sites prior to an
application for a construction permit, taking into account more fully
the benefits of standardization.
So we have in mind making such a study to decrease the time that the
Nuclear Regulatory Commission is on the critical path for powerplant
construction and operation, and to do that to the extent possible.
We should point out that we are only on the critical path at this
point in time, Mr. Chairman, approximately 2 years of the overall
10-year cycle. That is, during our construction permit review, our
evaluation and licensing process is on the critical path. But after a
construction permit is issued and the plant is under construction, we
arrange our licensing process so that, except in very unusual(())
circumstances, we are off the critical path when the time comes for
operation.
So, over the 10 year span that is nominally talked about, between
inception and operation of a nuclear plant, the NRC is on the critical
path only 2 of those days.
Mr. GINN. I cannot tell you that, Mr. Chairman. We are just in the
beginning of that process.
Mr. GINN. Are there any basic conflicts between the statute, Public
Law 92-500, and the Atomic Energy Act of 1954?
Mr. DENTON. No, sir; not that I am aware of.
The Atomic Energy Act deals principally with matters of nuclear
safety. It does exclude certain sites because of the factors that have
to be considered, such as seismology, flooding, population density. So
the only possible conflict would be the extent to which the Atomic
Energy Act excludes siting in unsafe areas.
Mr. GINN. Mr. Stangeland, do you have any questions?
Mr. STANGELAND. No.
Mr. GINN. Mr. Hefner?
Mr. HEFNER. No questions.
Mr. GINN. Are there questions from either counsel?
Well, gentlemen, it appears that we are letting you off light, but we
do want to thank you very much for your comments and for your statements
that will be inserted in the record.
We thank you for being here. We express our gratitude to you.
Mr. CASE. Thank you, sir. We are glad we could contribute.
(The following were received for the record:)
PREPARED STATEMENT OF EDSON G. CASE, ACTING DIRECTOR, OFFICE OF NUCLEAR
REACTOR REGULATION
Mr. Chairman and members of the subcommittee, my name is Edson G.
Case, I am acting Director of the Ofice of Nuclear Reactor Regulation
(NRR) of the U.S. Nuclear Regulatory Commission (NRC). I am pleased to
be here with you today to discuss the NRC's responsibilities and
programs in the regulation of domestic commercial nuclear power
reactors. After a short presentation, I would be pleased to answer any
questions you may have.
It is my understanding that the primary subject of this hearing is
the impact of the Clean Water Act on the electrical power generating
industry. I was also informed that the subcommittee would benefit from
a brief introduction into the NRC procedures and practices. Therefore,
my remarks will be directed towards the licensing and regulation of
nuclear power reactors, including the scope and process for reviewing
the safety of power reactors, and our procedures for evaluating and
assuring that an appropriate environmental balance is obtained.
Following my testimony, Mr. Harold Denton, Director of NRR's Division
of Site Safety and Environmental Analysis will discuss NRC's
implementation of the Clean Water Act, the reactor site selection
process and the NRC-EPA interface.
As you know, the NRC derives its basic regulatory authority from two
statutes. Under the Energy Reorganization Act of 1974, NRC became
responsible for implementing all regulatory requirements of the Atomic
Energy Act of 1954, as amended. These provisions make the commission
responsible for assuring protection of the radiological health and
safety of the public and the common defense and security, as well as
assuring that licensing actions involving certain nuclear facilities are
not inconsistent with the Nation's antitrust laws.
In addition, under the National Environmental Policy Act of 1969, the
NRC is responsible for a comprehensive evaluation and assessment of the
full range(()) of environmental effects of the construction and
operation of nuclear power reactors and certain other types of
facilities, and for balancing the benefits to be derived from the
construction and operation of such facilities against environmental
costs.
These assurances and conclusions are based upon the NRC's safety and
environmental reviews which are performed during our licensing process.
Before a nuclear power plant can be built at a particular site, a
construction permit must be obtained from the NRC. A major part of the
application for a construction permit is the preliminary safety analysis
report (PSAR). This document describes the design of the proposed
reactor and presents comprehensive data on the proposed site. The
report discusses hypothetical accident situations and the safety
features that will be provided to prevent such accidents or, if they
should occur, to mitigate their effects on both the public and the
facility's employees. The company also submits an environmental report
to provide a basis for our independent evaluation of the environmental
impact of the proposed plant, including the justification for the need
for the plant, and a cost benefit assessment for the proposed and
alternate sites for the facility.
The NRC staff reviews the design of the proposed plant and site to
assure that adequate provisions to protect the public health and safety
and environment are included. Design methods and calculation procedures
are examined on a selective basis to establish their validity.
Spot-checks of actual calculations and other procedures of design and
analysis are made by the staff to establish the validity of the
applicant's proposals.
The principal areas of the staff's safety review are:
1. A review is made of the population density and use
characteristics of the site and its physical characteristics including
seismology, meteorology, geology and hydrology to determine the
potential effects of the site on the reactor, and the reactor effects on
the site.
2. A review is performed by the plant design, and the fabrication
and construction plans for features important to safety to determine
that they meet regulatory requirements, or that any departures from
requirements have been identified and justified.
3. Evaluations are made of the responses of the plant and its
systems to various anticipated operating transients and to a broad
spectrum of hypothetical accidents. The potential consequences of these
hypothetical accidents are then evaluated conservatively to determine
that the calculated potential offsite radiation doses that might result
in the very unlikely event of their occurrence would not exceed the
guidelines for site acceptability.
4. A review is made of the applicant's plans for plant operations
including the organizational structure, the technical qualifications of
operating and technical support personnel and the measures taken for
industrial security. These reviews form the basis for determining
whether there is reasonable assurance that the applicant is technically
qualified to construct and operate the plant safely.
5. Evaluations are made of the design of the systems provided for
control of the radiological effluents from the plant to determine that
these systems can limit the release of radioactive wastes from the
station to the extremely low values specified by NRC regulations and
that the applicant will operate the facility in such a manner as to
reduce radioactive releases to levels that are as low as practicable.
Upon completion by the NRC staff of its safety review, the Advisory
Committee on Reactor Safeguards (ACRS), an independent statutory
committee established to provide advice to the NRC on reactor safety,
reviews in public sessions each application for a construction permit or
an operating license for a commercial nuclear power plant. The ACRS is
composed of fifteen technically trained individuals who, though not NRC
employees, are appointed by the Commission for terms of four years each.
When the committee has completed its independent safety review, its
report is submitted to the Commission and made publicly available. This
constitutes the first independent review of the staff's safety
evaluation.
Either concurrently with or separately from the radiological safety
review, an environmental review is performed by the NRC staff and its
consultants to evaluate the potential environmental impact of the
proposed plant, to provide comparisons between the benefits to be
derived and the possible risk to the(()) environment of the proposed
plant and reasonable alternative approaches that might achieve the
objective of power production. The staff's conclusions are provided in
a draft environmental impact statement which is circulated for review
and comments by the appropriate Federal, State and local agencies as
well as by the general public. After carefully reviewing the comments
received, a final environmental impact statement is issued.
The law requires that a public hearing be held before a construction
permit may be issued for a nuclear power plant. Soon after an
application is docketed the NRC issues a notice of the hearing informing
members of the public that a hearing will be held on the application,
specifying the general issues to be considered at the hearing, and
specifying how members of the public may participate in the hearing.
Opportunity is afforded to States, local communities, organizations,
and interested members of the public to participate in the hearing as
full participants, or by means of a limited appearance which permits
them to submit written or oral statements for the record. States are
afforded a special status at the hearings and can become a party without
taking a position on the issues. Those permitted to intervene in the
proceedings are granted all rights, including the right to introduce
testimony and cross examine all direct testimony of others in the
proceeding.
The public hearing is conducted by a three-member Atomic Safety and
Licensing Board appointed from the NRC's Atomic Safety and Licensing
Board Panel. The Board is composed of one lawyer, who acts as chairman
for the proceeding, and two qualified in technical disciplines. The
Board considers all the evidence presented in the hearing, together with
proposed findings of fact and conclusions of law filed by the parties
and issues an initial decision. This constitutes the second independent
review of the staff's safety evaluation, and also serves along with
comments from State and Federal agencies, as an independent review of
the staff's final environmental evaluation.
If the initial decision regarding environmental and safety matters is
favorable, a construction permit is issued to the applicant by the
Director of Nuclear Reactor Regulation.
The Board's initial decision is subject to review by an Atomic Safety
and Licensing Appeal Board on its own motion, or if exceptions are filed
by any party of the proceeding. The decision may also be reviewed by
the Nuclear Regulatory Commissioners. Hence, there are at least four
opportunities provided for review of the NRC staff's work. Of course,
the final decision of the NRC regarding a licensing action is subject to
judicial review in the Federal courts. Thus the process of licensing
the construction of nuclear reactors provides extensive checks and
balances including that of extensive public scrutiny in the decision
making process.
When the construction of the nuclear facility has progressed to the
point where final design information and plans for operation are ready,
the applicant submits a final safety analysis report (FSAR) and an
updated environmental report or ER in support of an application for an
operating license. The FSAR and ER describe pertinent details of the
final design, supply plans for operation, procedures for coping with
emergencies, and security provisions for protection against sabotage.
Again the staff makes a detailed safety review of the information
followed by an independent evaluation by the ACRS in public sessions.
An environmental review is again performed which results in issuance of
draft and final environmental impact statements presenting the staff's
conclusions.
A public hearing is not mandatory in connection with an operating
license application; however, soon after acceptance of the operating
license application, the Commission publishes notice that it is
considering issuance of the license. The notice provides that any
person whose interest may be affected by the proceeding may ask the NRC
to hold a hearing. If a public hearing is held, the same process
described for the construction permit hearing is applicable.
Each license authorizing operation of a nuclear power reactor
contains technical specifications prescribing the conditions of
operation that are to be met in order to assure protection of the health
and safety of the public and of the environment. Technical
specifications prescribe limits on important safety variables such as
flow, temperature, pressure and on functional requirements and
availability of equipment such as pumps, control systems, monitor system
and backup safety systems like ECCS.(())
To assure the licensing conditions developed through the rigorous
licensing review process are followed in practice, the NRC carries out
an extensive inspection and enforcement program. Detailed field
inspections and audits are conducted during plant construction,
culminating in a determination that the plant as built is in substantial
conformance with license conditions.
In summary I would say, without prejudice to the conclusions NRC
might reach in any individual licensing proceeding, that we are able to
conclude that nuclear power plants designed, constructed and operated in
accordance with NRC regulations and requirements are safe; that is,
they present no undue risk to the health and safety of the public or to
the environment.
REGULATORY SAFEGUARDS FOR NUCLEAR REACTORS
At this point, I would like to briefly discuss another subject which
is receiving considerable attention -- that being safeguards -- to
inform the subcommittee of current NRC actions in this area.
Until several years ago, safeguards for nuclear power reactors
received a relatively low level of attention in the licensing process.
However, due to the high degree of public attention, continued
escalation of terrorism, and the increased number of nuclear reactors
going into operation, additional emphasis was placed on assuring that
adequate safeguards are incorporated at each facility. On February 24,
1977, a new regulation 10 cfr part 73.55 identifying requirements for
the protection of nuclear power reactors was published in the federal
register. This rule incorporates and codifies in the regulations the
significant progress which has been made in the safeguards area over the
past several years.
Safeguards are defined as those measures employed to prevent the
theft or diversion of special nuclear materials and the sabotage of
nuclear facilities. For current generation light water reactors the
primary concern is limited to potential acts of sabotage since the low
enrichment of the fuel and its physical characteristics make it
undesirable as a target for theft.
Acts of sabotage at a reactor site are of concern because they could
lead to a threat to the health and safety of the public. In carrying
out its licensing function, the NRC requires each nuclear reactor to
establish and maintain an appropriate level of protection against
incidents and sabotage such that the risk to the public is minimal. The
foundation of the NRC requirements consists of an effective safeguards
system and the protective features of the plant associated with its
safety design bases which provide inherent resistance to acts of
sabotage.
More specifically section 73.55 of the Commission's regulations
provides detailed safeguards guidelines and requirements. This is
accomplished via specification of general performance objectives as well
as an itemization of the components of a physical security plant which
are needed to fulfil these objectives. The inclusion of performance
objectives is intended to aid in the implementation of the rule, to more
explicitly indicate the desired level of protection, and to provide
flexibility in designing effective individual elements of a security
plan.
The overall philosophy employed in 73.55 is exemplified by its three
elements; deterrence, detection and delay -- that is, delay until law
enforcement personnel can arrive at the reactor site and neutralize the
threat. These functions are basic to the effective performance of a
physical security system and when combined with the conservative
assumptions regarding threat levels and the inherent protection afforded
by the safety design basis of nuclear reactors, provide a high degree of
assurance that potential acts of sabotage at reactors will not endanger
the public health and safety. The implementation schedule for 73.55
calls for all plants presently operating to submit for review an amended
security plan by May 25, 1977, and to be in full compliance by August,
1978.
Before I conclude my remarks, I would like to briefly summarize for
the subcommittee, the current status of nuclear power plants in the
U.S., including those operating, under construction and proposed:
Licensed to operate -- 63 units (45,000 MWe); construction permits
granted -- 71 units (75,000 MWe); under construction permit review --
66 units (74,000 MWe); ordered -- 15 units (17,000 MWe); publicly
announced -- 19 units (23,000 MWe); total-234 units (234,000 MWe).(())
The in-operation date for the 171 units yet to be licensed is difficult
to predict. As I'm sure you're aware, substantial delays have occurred
in the schedules for many of these units -- delays which were caused by
various reasons. In fiscal year 1977, the following delays and causes
affecting 40 units under construction or review were announced by
utilities:
............................................................ Months
.. Cause ........................... Number of Units .. delay total
---------------------------------------------------------------------
Financial/need for power............... ..... 18 ............. 348
Construction/labor problems............ ..... 15 ............. 104
State and Federal hearings............. ...... 4 .............. 60
Licensing.............................. ...... 3 .............. 39
.. Total............................... ..... 40 ............. 551
I believe these numbers, for the most part, reflect national and
economic factors rather than anything peculiar to nuclear power. In any
case, the delays incurred have been considerable and have been included
in order to present a complete picture of the status of nuclear power
today.
Mr. Chairman, that concludes my prepared remarks. I will answer any
questions the subcommittee members may have now or after Mr. Denton has
given his testimony. Thank you.
PREPARED STATEMENT OF HAROLD R. DENTON, DIRECTOR, DIVISION OF SITE
SAFETY AND ENVIRONMENT ANALYSIS
Mr. Chairman and members of the subcommittee, my name is Harold R.
Denton. I am Director of the Division of Site Safety and Environmental
Analysis (DSE) of the U.S. Nuclear Regulatory Commission (NRC). As Mr.
Case has indicated, my remarks are directed towards a discussion of the
site selection process for nuclear power plants, the Clean Water Act and
the NRC-EPA interface.
THE SITE SELECTION PROCESS
Under section 102(2)(c) of NEPA we are required to prepare, prior to
taking a major action, a detailed statement of the expected adverse
environmental consequences of that action, the resource commitment
involved in it, and alternatives to the proposed action. Our major
action is an approval of a proposed private action. The Atomic Energy
Act of 1954 and related NRC regulations provide bases for evaluating the
suitability of a proposed site to assure protection of the health and
safety of the public during the life of the plant. The National
Environmental Policy Act of 1969 and NRC regulations provide the bases
for evaluating the suitability of the proposed site to assure protection
of the environment. The elements by which NRC judges suitability of
sites are outlined in regulatory guides 4.2 and 4.7. These guidelines
are aimed at identifying for prospective applicants at the outset the
important environmental considerations which NRC expects to be discussed
in applications for construction permits.
The NRC staff conducts a review of the applicants site selection
process based on an interdisciplinary approach involving experts in the
natural, social and environmental sciences.
Based upon our reviews conducted to date, it appears that utilities
employ various methodologies in selecting sites for proposed power
generation stations. These methodologies generally contain the
following common functional elements:
(1). A statement of the overall utilities objectives, initial
constraints and limitations of the study, and geographical area
considered in the study;
(2). A description of the general approach to the site-plant
selection process;
(3). A definition of safety, environmental issues important to
establishing evaluation criteria;
(4). A description of the screening process leading to the
identification of candidate sites;
(5). A description of ranking process to order the candidate sites
preferentially.(())
The kinds of data and information required are affected by the site
and regional characteristics and depend on the general approach used in
selecting sites. Regional information from public documents and
published data including maps and reports on the following aspects of
the region is usually required; geology/seismology; meteorology;
demography; hydrology (flooding, water supply, water quality);
industrial, military and transportation facilities; ecological systems
and biota; land use; socioeconomics.
Water availability information is important in the early screening
phase of the site selection process. During the preliminary stages of
the site selection process the application of relatively few major
criteria, (e.g. water availability, distance to load centers, major
centers of population, topography, etc.) results in reducing the large
region under consideration to certain discrete candidate areas. These
major criteria are influenced and may be limited by statutory
limitations, requirements of state and federal regulatory agencies
(including utility and siting agencies) and essential functional
requirements of the proposed station.
Water quality issues are usually considered in the comparative
analysis of candidate sites. The comparative analysis involves
collecting and inventorying information on each site, preparing cost
estimates, rating site attributes and preferential ranking of the
candidate sites. This stage also may consist of several iterative
evaluations. Each successive iteration is characterized by
progressively increasing the detail of information required, the depth
of analysis applied and the refinement of considerations.
The final product of the applicant site selection process is a slate
of several candidate sites. The selection of the proposed site marks
the beginning of a process for collecting and evaluating detailed
information and data on the proposed site. This information is
summarized by the applicant in the preliminary safety analysis report
and the environmental report which must accompany an application to the
NRC for a construction permit.
It is at this point the formal process for conducting our safety and
environmental review discussed by Mr. Case earlier today begins.
Informal interactions with the staff begin at an earlier point. Since
the summer of 1974 the staff has requested prospective applicants to
submit certain specified information relative to the site
characteristics of the proposed location for the nuclear station up to
twelve months prior to tendering an application. This information about
the proposed facility's location; population densities; foundation
characteristics; seismology; meterology and hydrology allows the staff
to conduct a preliminary review to determine whether the proposed site
has features which may make it unsuitable in the judgment of NRS for
siting a nuclear power plant.
FWPCA REQUIREMENTS
By virtue of the Federal Water Pollution Control Act and the National
Environmental Policy Act, both NRC and the Environmental Protection
Agency have significant roles to play in the overall effort to regulate
the impact of nuclear-powered electric generating facilities on the
aquatic environment. A brief description of historical developments
regarding the manner in which water related environmental impacts have
been considered may be helpful.
1. Prior to the enactment of NEPA, Federal and State agencies other
than the Atomic Energy Commission (predecessor to NRC) exercised control
of the discharge of non-radiological pollutants from nuclear power
plants.
2. Following enactment of NEPA and the Water Quality Improvement Act
of 1970, but prior to the enactment of the 1972 amendments of the FWPCA,
construction permits could not be issued by NRC until a water quality
certificate from the State in which the proposed facility was to be
located was furnished. That certificate, known as a "21(b) certificate"
after the section of the FWPCA which established the need for it, had to
indicate that there was "reasonable assurance" that the discharges from
the facility would not violate the State's water quality standards.
In addition to insuring that such a certificate was obtained, NRC
understood its obligations under NEPA to require it: (1) to make an
independent appraisal of the impact of the discharge on water quality;
and (2) to consider any adverse impact in the overall cost/benefit
balance.
3. The 1972 amendments to the FWPCA expanded the role of the
Environmental Protection Agency with respect to the protection of water
quality. Under section 402 of the amended FWPCA, EPA may issue a permit
allowing the(()) discharge of a pollutant if the discharge complies with
certain standards established pursuant to certain provisions of that
act. Within the act's definition of pollutants (section 502(6), 33
U.S.C. 1362(6), heat was included.
The 1972 amendments to the FWPCA also changed the role of the NRC in
the regulatory framework. The amendments altered the nature of the
certification which Federal licensing agencies are to obtain from the
States (NRC must be furnished such a certification before issuing a
construction permit). Instead of certifying, as they did under former
section 21(b), as to reasonable assurance that state water quality
standards will be met, by virtue of section 401 of the amended act, the
States are now to certify that the proposed discharge will comply with
federal standards; i.e., with "the applicable provisions of" certain
sections of the amended FWPCA, among them section 301, as well as
requirements of State law. The requirements and limitations thus set
forth then become conditions on the federal license (section 401(d)).
Insofar as NRC's responsibilities are concerned, perhaps the most
significant change made by the 1972 amendments was contained in section
511(c), (33 U.S.C. 1371(c) (2)) with respect to water pollution
standards the 1972 act provided that EPA was to establish those
standards. Accordingly, where the NEPA process previously required NRC
to specify requirements for minimizing aquatic environmental impacts
from nuclear power reactors, section 511 now provides that the standards
in this area will be set by EPA and then NRC will, in its case by case
NEPA review, evaluate the environmental impacts on water quality
assuming the standards and requirements will be met. Furthermore the
aquatic impacts on the NRC analysis are but one element which plays a
part in the cost benefit balance done under NEPA. Thus, NRC continues
to consider aquatic impacts; but only as part of its overall "balancing
judgment" on whether to grant the requested permit.
In order for this system to work to maximum advantage, of course, it
is necessary for EPA to have made its determination relative to the
plant's cooling system in advance of NRC's consideration of the matter.
It was within this framework that the second memorandum of understanding
between NRC and EPA was developed.
SECOND MEMORANDUM OF UNDERSTANDING
The January 30, 1976 memorandum of understanding between NRC and EPA
regarding implementation of certain responsibilities under the Federal
Water Pollution Control Act is intended to (1) reduce the demands for
water quality data placed on applicants for nuclear facilities by
assuring the applicants' environmental reports contain sufficient
information to meet NRC's needs under NEPA and EPA's needs under the
FWPCA; and (2) to minimize any duplication of effort between NEPA and
EPA in meeting their respective responsibilities under NEPA and FWPCA.
Essential points of the memorandum are as follows:
NRC is the lead agency for preparation of environmental statements
for nuclear facilities.
NRC and EPA will cooperate in identifying and consolidating their
respective requirements under NEPA and FWPCA for water quality data.
EPA will participate with NRC in the evaluation of water quality
impacts.
In those States which do not have NPDES permitting authority, EPA
will issue NPDES 402 permits 316(a) exemptions and 316(b) analysis of
intake structures "as far as possible in advance" of the date of
issuance by NRC of its final environmental statement. NRC and EPA will
consider the feasibility of holding joint or concurrent hearings.
While the intent of the memorandum is to minimize duplication of
effort, some water quality assessments still involve some overlapping
review activities. This is due to in part to the very nature of NEPA
and FWPCA and in part to the fact that the NRC/EPA memorandum of
understanding is most effective in those cases for which the applicant
has from 18 to 24 months of baseline data at the time of submission of
an environmental report to NRC and of filing the NPDES permit
application to EPA.
CONSIDERATION OF ALTENATIVES
The purpose of the cost/benefit required by NEPA is to identify each
significant environmental cost and to determine whether, all other
factors(()) considered, on balance the incurring of that cost is
warranted. This determination involves the consideration of many
factors: among them, off-setting benefits, available alternatives, and
possible means for mitigating the environmental harm.
The scope and detail necessary in the examination of alternatives
must be related to the ongoing safety and environmental review of the
proposed site and plant design. If these reviews reveal that the
proposed site and facility presents unusual risks of particular
environmental impacts, the examination of alternatives will focus on
whether there are realistic possibilities of avoiding these impacts. If
such alternatives exist, they must be fully evaluated. If, on the other
hand, these reviews reveal that a particular site and facility design
would result simply in ordinary acceptable and irreducible adverse
effects, a less detailed examination of alternatives is needed.
It is at this juncture, consideration of alternatives, that FWPCA
requirements bear upon and affect the scope of NEPA considerations.
Where certain aspects of reactor design (e.g., whether cooling towers
will be required, and the location of intake structures are to be
approved) are affected by and are the responsibility of EPA, NRC is
still obligated to weigh the overall project in light of EPA's
decisions.
In those instances in which applicants are proposing to use cooling
towers, and are not requesting a 316(a) exemption from EPA, the scope of
NRC's NEPA review will not be seriously affected. However, in those
instances in which a proposed applicant is seeking a 316(a) exception
from EPA, there is a large potential for affecting the scope of NRC's
NEPA review; if there is any uncertainty as to the final disposition of
the applicant's request before EPA. While the aforementioned memorandum
of understanding is intended to minimize this potential, a residum of
uncertainty will always exist until the determination has been upheld
throughout the EPA regulatory process and perhaps, throughout the
judicial process.
As a result of these cases, as long as there exists a substantial
uncertainty as to the type of cooling system which may be finally
approved by EPA, the scope of NRC's NEPA review must be expanded to
include an in-depth evaluation of the economic costs and environmental
impacts of both once through and closed cycle cooling systems.
NRC has licensed projects having once-through cooling as well as
projects using closed-cycle cooling, including lakes and ponds as well
as towers. Under NEPA, the NRC considers the environmental costs and
benefits of the cooling system proposed by an applicant and also
considers costs and benefits of alternative cooling systems. A summary
of cooling system types for projects reviewed by NRC (or currently
undergoing reviews is attached as table 1).
Mr. Chairman, that concludes my prepared remarks. I will answer any
questions the subcommittee may have. Thank you.
TABLE 1. -- SUMMARY OF UNIT COOLING SYSTEMS, DEC. 18, 1976
(Each number represents units; not sites)
GRAPHIC OMITTED
Mr. GINN. Our next witness is from the Federal Energy
Administration. Would the witnesses please come forward so I can
administer the oath before you take your places.
Do you solemnly swear the testimony you will give the subcommittee
will be the truth, the whole truth, and nothing but the truth, so help
you God?(())
Mr. BLOOM. I do.
Mr. HANFLING. I do.
Mr. GINN. Thank you very much.
We have with us Mr. Paul L. Bloom, deputy general counsel for the
Federal Energy Administration, and Mr. Robert I. Hanfling, Deputy
Assistant Administrator, Office of Energy Resources Development.
Gentlemen, we are delighted to have you with us. We appreciate your
patience. We ask that you proceed as you see fit.
HRG
770421
PAUL L. BLOOM ROBERT I. HANFLING
DEPUTY GENERAL COUNSEL, FEDERAL ENERGY ADMINISTRATION DEPUTY ASSISTANT
ADMINISTRATOR, OFFICE OF ENERGY RESOURCES DEVELOPMENT
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT--1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, TESTIMONY OF PAUL L. BLOOM, DEPUTY GENERAL COUNSEL, FEDERAL ENERGY
ADMINISTRATION, AND OTHER (PP 465 TO 468)
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TESTIMONY OF PAUL L. BLOOM, DEPUTY GENERAL COUNSEL, FEDERAL ENERGY
ADMINISTRATION, ACCOMPANIED BY ROBERT I. HANFLING, DEPUTY ASSISTANT
ADMINISTRATOR, OFFICE OF ENERGY RESOURCES DEVELOPMENT
Mr. BLOOM. Thank you, Mr. Chairman.
I am Paul L. Bloom, a deputy general counsel of FEA.
I am glad to have the opportunity to appear before the subcommittee
today to discuss the impacts of energy conservation and development
initiatives on water supply, water quality, and air quality.
As the chairman has noted, Mr. Robert I. Hanfling, Deputy Assistant
Administrator, Office of Energy Resources Development, also appears with
me. Mr. Hanfling and I will both be glad to try to respond within the
areas of our respective expertise to any questions of the committee.
I am sure you will understand that my comments on these subjects must
necessarily be very preliminary and general, in view of the President's
message last night setting forth a considerable number of important and
complex initiatives, policies, and recommendations in these areas.
Generally, as to subject matter -- and I am conscious of the
committee's time problems -- I will point out the testimony submitted to
the committee this morning covers four basic areas, in an attempt to
respond within a very short timeframe to the request from the committee.
We will talk about the effects of the national energy plan on water
supply principally in the Western United States.
Secondly: About legal institutions affecting water supply, and,
again, principally in the Western United States.
Thirdly: We will attempt to give the committee a very quick update
on the western drought situation.
And, fourth: We will talk about some of the specific air and water
quality impacts of the national energy plan which can be, in very
general terms, identified at this very early time.
Like most natural resources, water is not evenly distributed.
Moreover, as we have been reminded by the current drought conditions in
the normally water-abundant Northwest region, water supply varies not
just according to geography and season, but annually as well. Patterns
of rainfall are fairly consistent, but there can be dramatic
fluctuations on occasion. There are, however, clear and consistent(())
general characteristics of our nation's water resources, and it is
possible to discuss the overall impact of the national energy plan upon
these patterns of supply.
Water supply is generally adequate east of the Mississippi River.
What is more scarce in the west, although, notwithstanding the current
drought, the Pacific Northwest basin has traditionally been water-rich.
Obviously, water supply cannot be described without reference to type
(for example, ground water, surface water, brackish, saline, etcetera).
In general, this discussion is addressed to surface water. In some
parts of the country, other sources are of great importance to energy
development; for example, ground water is essential to oil and natural
gas drilling and/or production, and areas lacking ground water require
expensive and energy-consumptive systems to get the water to where it is
needed.
Elements of the national energy plan will affect the overall supply
and demand for water, but these effects will vary with differing energy
development initiatives in differing areas. Thus, it is difficult to
quantify the effects with great accuracy at this time.
One: Oil and natural gas pricing. Under the national energy plan,
the price of newly discovered oil would be phased up to the world price
of crude oil. Marginal production not justified at current lower tier
prices could be sold at the present upper tier price.
Tertiary production of stripper wells would receive the world price.
Existing controls would otherwise be maintained, but subject to a
wellhead tax to achieve uniformity in price at the refiner level for all
types of crude oil.
Natural gas pricing would be converted from a cost-based to a
commodity-value system to result in Btu equivalency with the average,
untaxed, wellhead crude oil price for new gas.
Further incentives could be provided for high-cost production. These
and other changes are intended to result in creating effective
incentives for new exploration and production, while avoiding windfall
producer profits.
Drilling for, and producing, crude oil and natural gas do not
constitute a major item of water consumption in the United States
generally, although the effect is concentrated in a few geographic areas
where oil and gas production is centered.
In such relatively water-rich areas such as the lower Mississippi
valley there should be little significant impact. However, semiarid
portions of the country will be more directly -- and perhaps
significantly -- affected.
Increased oil and natural gas production in the Southwest will
sometime involve substantial additional water demand, leading to greater
competition with irrigation agriculture and municipal use.
Increased demand for water for oil and gas production will be
especially difficult to manage in areas where pricing incentives for
secondary and tertiary recovery will be relatively important. Oklahoma,
with its increasingly mature wells, many of them marginal or stripper
wells, is one such area. California's heavy oil fields are another area
where water demand may increase significantly because of use of enhanced
recovery techniques of oil production.(())
Two: Coal conversion program. The national energy plan would
strengthen existing statutes that prohibits new construction of utility
and industrial boilers using petroleum or natural gas, and prohibit many
existing plants with coal-burning capability from burning petroleum or
natural gas, and encourage conversion of these to coal through a system
of tax penalties for oil and gas use, and tax credits for costs incurred
in converting coal.
Under the NEP, permits would be required to allow shifting to
petroleum from coal. With limited temporary exceptions, no utility
would be permitted to burn natural gas by 1990.
The result of these policies would be substantial switchovers to coal
from other fuels and, hence, added demand for coal.
Coal production uses water for several direct purposes -- watering
down underground mines for dust control, coal washing, and, of course,
revegetation of strip mined areas. Transport of coal, depending on the
mode, might involve additional water use. These consumptions are
important, but generally manageable.
The result of increased emphasis on coal conversion and the creation
of new coal-burning capability, of course, increased coal mining of all
forms. Other portions of the national energy plan may also tend to
promote increased coal production as well.
Some new coal could be obtained by strip mining. In the largely
untapped western coal fields, the effect on water resources could be
significiant. However, these potential impacts would be minimized with
the passage of administration supported strip mining measures.
Coalbeds may be aquifiers of great significance in waterpoor regions.
Lateral flow of water is interrupted by mining, sometimes with
unpredictable effects on ground water patterns.
Deep mining in the East, if increased, would not generally have
significant effects on the quantity of water supplies, but quality may
be affected. Increases in western deep mining will not likely have
substantial impact on water resources.
Mr. Chairman, I will not discuss it in detail but, for the ready
reference of the committee, I have attached to our statement a statement
of the rather complex legal authorities involved in the existing coal
conversion legislation. As I say, that is attachment No. 1 to our
testimony.
Mr. GINN. Without objection, that will be made a part of your
statement.
Mr. BLOOM. Three. Nuclear. The administration's nuclear power
policy involves continued reliance on conventional light-water reactors
and abandonment of breeder reactor technology.
Water needs for nuclear power come from requirements for cooling
needs. Processing of uranium requires considerable amounts of water.
Mining and extraction require lesser quantities.
The Nation has been committed, at least as a matter of executive
policy, to increased reliance on nuclear power. Optimistic past
projections of water needs for nuclear development, therefore, provide
possible guidance as to the effect of future nuclear development.
The economics of nuclear production favor siting near existing
rivers, lakes, and estuaries. Consumption of water in these locations
is significant, but not unmanageable. The major water problems(())
created are, of course, from thermal pollution and possible injury to
fisheries, not from consumption. Cooling towers are used where bodies
of water are not conveniently available.
Four: Geothermal tax incentives. The national energy plan would
permit investment tax credit tax treatment for geothermal power
development.
Water consumption from geothermal processes is not great as water is
contained typically in a closed system, but it may have important
localized effects on ground waterflows and, thus, eventually on
streamflows.
The next general subject matter of our discussion this morning, Mr.
Chairman, is legal institutions affecting water availability in the
Western United States.
One of the most basic considerations in discussing availability of
water for energy and the impact of new initiatives for producing and
conversing energy is the fact that in many parts of the American West
most, if not all, of the reliable and economically accessible water
resources are already obligated by privately-acquired water rights. In
such situations, the availability of water for energy development
projects, including coal-fired electric generation, nuclear facilities,
synthetic fuels production, et cetera, will depend upon the willingness
of water right owners in affected localities to convey their vested
property rights in water, or the willingness, in the alternative, of the
affected governmental agencies to exercise the power of eminent domain
to acquire governmental agencies to exercise the power of eminent domain
to acquire ownership of such rights.
Obviously, in certain areas of limited water resource availability,
this could mean the accelerated transfer of water use from agricultural
and related purposes to industrial uses, with potentially far-reaching
effects on local economics and agricultural productivity.
Mr. Chairman, in view of your time constraints, I will not discuss in
length the materials in our paper on some more specific legal
institutions affecting water uses. These involve such matters as
international water treaties with Mexico, interstate stream compacts,
and a brief discussion of the doctrine of riparian law and prior
appropriation law. They are included in this statement for the
reference of the Committee.
Mr. GINN. Very good. That material will be made a part of the
record at this point. (The following was received for the record.)
HRG COR
770421
FEDERAL ENERGY ADMINISTRATION
--
SUBCOMMITTEE ON INVESTIGATIONS AND REVIEW HOUSE COMMITTEE ON PUBLIC
WORKS AND TRANSPORTATION
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT --1977
(THERMAL POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER
GENERATION) 1977, LEGAL INSTITUTIONS AFFECTING WATER AVAILABILITY IN THE
WESTERN UNITED STATES (PP 468 TO 470)
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LEGAL INSTITUTIONS AFFECTING WATER AVAILABILITY IN THE WESTERN UNITED
STATES
The development and use of water resources in the Western United
States are governed by a complex of interrelated legal institutions,
ranging from international treaties to privately owned water rights.
Perhaps the most fundamental legal consideration to bear in mind in
appraising impacts of increased energy development on water supply is
the public ownership of water in the West. In at least 11 of the
Western States the doctrine of prior appropriation exists and either
exclusively or partially governs development of rights in water. This
doctrine is based on public ownership and administration of surface
waters (and sometimes also underground waters), and it recognizes that
water rights are legally ranked according to priority in time. In Texas
and California (and in Arizona in respect to underground waters) the
doctrine of riparian rights applies and landowners may obtain legally
recognized water rights in water physically contiguous to their lands,
subject to rules of reasonable use or correlative rights, which
essentially require a sharing of a limited water(()) resource. In
California and the Pacific Northwest States prior appropriation law and
riparian law co-exist in one combination or another.
Because virtually all of the American West is characterized by either
semiarid or intermittent drought conditions, the Western States have
played a leadership role in developing interestate and intrastate legal
institutions broadly controlling developments of water resources. In
addition to the operation of the two water law doctrines already
mentioned, and their various combinations, the western states have
evolved a complex pattern of interstate stream compacts, with the
objective of settling disputes as to the respective rights of the states
in interstate streams and facilitating federal and private investment in
water resource development. The first of these interstate stream
compacts, and probably the most important in terms of water for energy
in the West, is the Colorado River Compact among the seven States of the
basin. The Colorado River Compact apportions the waters of the basin
between its upper and lower basins by obligating the upper basin to
deliver fixed quantities of water in fixed periods of time. Relying on
this apportionment, the States of the upper and lower basins have
secured the passage of Federal reclamation project acts that have
resulted in the construction of Boulder Canyon Dam and Lake Mead, Glen
Canyon Dam and Lake Powell, and many other significant water resource
projects. Each of the Federal statutes authorizing a reclamation
project in the stream system has become a part of the "law of the
river," as have additional interstate compacts like the upper Colorado
River basin Compact of 1948, and the 1963 decision of the U.S. Supreme
Court, Arizona v. California, decreeing the rights of the lower basin
States in the mainstream Colorado River. Another critically important
legal element in the "law of the river" is the 1944 United States-Mexico
Water Treaty, which obligates the United States to deliver one and
one-half million acre feet of Colorado River waters to Mexico annually.
In a minute recently entered pursuant to this treaty the United States
and Mexico have agreed that the quality of waters delivered to Mexico
under the treaty will be tied by a fixed formula to the quality of water
diverted for use in Southern California. This water quality guarantee
for Mexico, and the extensive desalination and related works authorized
by the Congress to effectuate it, resulted from the problem of worsening
salinity in the Colorado River, a problem affecting not only Mexico but
agricultural water users in the Lower Basin of the Colorado River in the
United States. It is self-evident that rapidly increasing water uses
for energy production (other than hydroelectric) in the Colorado River
Basin would threaten to aggravate the existing salinity problem and
eventually require additional corrective steps to be taken by State,
local and Federal interests to insure protection of existing water users
in the United States and Mexico.
One of the most basic considerations in discussing availability of
water for energy and the impact of new initiatives for producing and
conserving energy is the fact that in many parts of the American West
most if not all of the reliable and economically accessible water
resources are already obligated by privately acquired water rights. In
such situations, the availability of water for energy development
projects, including coal-fired electric generation, nuclear facilities,
synthetic fuels production, etc. will depend upon the willingness of
water right owners in affected localities to convey their vested
property rights in water, or the willingness in the alternative, of the
affected governmental agencies to exercise the power of eminent domain
to acquire ownership of such rights. Obviously, in certain areas of
limited water resource availability, this could mean the accelerated
transfer of water use from agricultural and related purposes to
industrial uses, with potentially far-reaching effects on local
economies and agricultural productivity.
The U.S. Government is itself the owner, in its own behalf, or as
trustee for Indian Tribes, of a potentially significant bloc of water
rights in the Western States. This is because the U.S. Supreme Court
has developed the doctrine of "reserved Federal rights," under which the
United States may claim the right to sufficient waters, unappropriated
at the time Federal enclaves were reserved from the public domain, to
satisfy the purposes for which such Federal reservations were made.
These "reserved rights" may attach to national forests, parks,
monuments, military reserves, and in a similar fashion, to Indian
reservations. The Justice Department has made claims for such rights in
connection with Federal lands reserved because they contain oil, oil
shales or other valuable resources. The ready availability of water
under such Federal water rights as(()) a contribution to providing water
for energy developments in the near future must be viewed cautiously,
because Federal reserved rights are now the center of widespread legal
controversies in State and Federal courts concerning the nature, extent
and priority of such rights, the ability of State courts effectively to
adjudicate them, the difficulty of integrating the exercise of such
rights into existing systems of water resource administration by State
Governments, the rights of non-Indian persons and corporations to use
"Indian water rights" on and off Indian reservations, and of course the
basic consideration that there may not exist adequate Federal reserved
rights of sufficient priority and magnitude to satisfy energy demands in
specific locations.
Because of this complex network of legal institutions and
accompanying legal controversies, it is difficult to speak with
certainty as to the impact of the President's energy message on water
supply in the Westera United States. Perhaps the only cogent general
observation that can be made on the subject is that securing and
developing water resources for increased energy development in the West
will be beset by difficult and time consuming legal problems, and that
these problems will require careful planning to avoid unnecessary
impairment of existing water use economies, or dislocation of
long-established and locally important legal institutions.
HRG
770421
PAUL L. BLOOM ROBERT I. HANFLING
DEPUTY GENERAL COUNSEL, FEDERAL ENERGY ADMINISTRATION DEPUTY ASSISTANT
ADMINISTRATOR, OFFICE OF ENERGY RESOURCES DEVELOPMENT
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT--1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, TESTIMONY OF PAUL L. BLOOM, DEPUTY GENERAL COUNSEL, FEDERAL ENERGY
ADMINISTRATION, AND OTHER (PP 470 TO 479) CONTINUATION
--
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MR. BLOOM. Our next subject matter is an update on the western
drought situation.
As the committee knows, the Far and Midwest are currently
experiencing a drought of unprecedented proportions. Although most
publicity has focused on the Far West, severe water shortage conditions
also grip portions of the Upper Mississippi and Missouri River basins,
as well as the Texas Panhandle and Oklahoma.
Despite heavier than normal snowfall in late March, which brought
relief to a few areas, much of the West continues to suffer the worst
drought of record. For most of the region west of the Continental
Divide, seasonal precipitation as of April 1 is less than 50 percent of
normal. The same holds true for the Panhandle and Oklahoma.
Northern and central California are experiencing perhaps the severest
drought, now in its second year. For the period October through March,
Sacramento's precipitation level, for example, is 34 percent of normal.
Similar severe conditions extend into neighboring portions of Nevada
where precipitation levels are 35 to 40 percent of normal. Similar
precipitation shortfalls afflict Washington, Oregon, and Idaho. For
example, the October through March precipitation figures for Seattle,
Portland, and Boise are less than 40 percent of normal.
Of course the Far West is not the only region experiencing drought.
Cities in the affected portions of Oklahoma and the Texas Panhandle
report seasonal precipitation levels that are less than 45 percent of
normal readings. The drought pattern continues into sections of the
Missouri and Upper Mississippi River Basins as well, where streamflow
and snowpack figures are between 40 and 50 percent of normal readings,
and water table levels have sunk to record lows.
Next, water supply forecast. Unfortunately, drought conditions will
continue to grip much of the West throughout the coming summer and fall.
Much of the West receives nearly all of its annual precipitation in the
form of winter snowfall. Therefore, even a return to seasonal
precipitation levels in the summer and fall cannot abate drought
conditions caused by the absence of last winter's snow. Relief will
come, if at all, with next winter's snowfall.(())
Forecasts for the Midwest are more speculative. In the Upper
Mississippi and Missouri Basins, precipitation, or its lack, in the next
few months, will determine the severity and duration of the drought. A
depiction of precipitation shortfalls in the Western United States, for
the period October 1, 1976-March 31, 1977, is attached as appendix 2.
Twenty-one States have recently joined in creating a regional drought
action task force to expedite the flow of information between the
Federal Government and the affected States. The President has sent
proposals to the Congress for legislative action to ameliorate effects
of the drought. These proposals would establish a program of loans and
grants to assist communities, farmers, ranchers, small businessmen, and
others hard hit by the drought.
Now, more specifically, the effects of drought conditions on electric
systems in the West, the energy impacts of the drought on hydroelectric
systems are such that there is inadequate electrical generating
capacity, but there may be inadequate water for generation to meet fall
and winter firm energy demands.
In the Pacific Northwest region, normally 90 percent of the total
electricity generated is from hydropower.
Because precipitation has been exceptionally deficient in this area
-- in the range of 25 to 50 percent of normal -- shortages of
electricity have already required suspension of service to industrial
users on nonfirm contracts, and stringent conservation measures have
been instituted. There is a 50-percent chance for mandatory water and
electricity curtailments by July or August 1977 and the region will be
unable to provide customary surplus power to northern California.
If I may digress a moment, we have brought with us and will make
available to the committee a copy of a joint FPC-FEA interim report
entitled: "Impacts of the Western Drought on Regional Electricity
Generation," dated March 31, 1977.
Mr. GINN. Would you like to have that document made a part of these
proceedings?
Mr. BLOOM. Yes; I would.
Mr. GINN. Without objection, so ordered.
(The document referred to is retained in the subcommittee files.)
Mr. BLOOM. In northern California, hydropower has generally provided
40 percent of total electric generation, and the water shortage will
cause utilities in this area to replace hydropower with oil fired
electric generation.
Southern California is less dependent -- in the range of 10 percent
-- on hydropower, and will have sufficient oil-fired generation capacity
in 1977 unless sharply increasing irrigation pumping demand, the
temporary shutdown of a nuclear plant, and curtailment of oil-fired
electric generation due to air quality restrictions combine to cause a
generation deficit in peak-demand periods this summer. The California
Utilities Commission has already ordered a voltage control program and
increases in oil storage levels.
All of these factors will probably cause consumer rates for
electricity to increase in 1977; replacement of hydropower by oil-fired
generation will be the principal cause of this increased cost.(())
Another problem which will result from this substitution is increased
air quality concern. Intensive energy conservation efforts, as called
for the President in his message last night, should mitigate these
predicted problems of energy shortage, cost, and air pollution.
The next principal theme of our testimony this morning is air and
water quality impacts of the NEP.
First: Conservation.
Clearly, the benefits of lower rates of energy consumption include a
reduction in the levels of air and water pollutants related to energy
systems. The conservation initiatives of the national energy plan will
reduce the environmental residuals associated with the extraction,
transportation, processing, and conversion of certain fuels, and will
have significant and beneficial environmental impacts.
The environmental benefits of slower energy growth include better air
quality, fewer oil spills, and less reliance on costly, environmentally
risky supply options. These objectives must, of course, be accomplished
by systematic waste reduction efforts to avoid adverse effects on
employment and the economy.
Those measures that will result in a reduction in electricity demand
-- such as insulation of existing homes, mandatory energy efficiency
standards for new buildings, tax credits for commercial and industrial
efficiency, and national electric rate structure reforms -- will reduce
air and water pollutants resulting from the generation of electricity,
lessen the need for the construction of new generating facilities and
transmission lines, and reduce the need to import foreign oil with a
comparable reduction in oilspill risk.
On the other hand, several of the initiatives taken to increase
domestic supply of energy, in particular the emphasis on coal, have the
potential for increased and possible adverse impacts on the Nation's air
and water resources. Adequate safeguards and performance standards will
assure that these measures are undertaken in a manner which does not
impair environmental quality.
More specifically, let us consider energy development impacts related
to air quality. Air pollutant emissions due to energy production and
consumption will be altered by the President's energy policies. For the
Nation as a whole, energy systems -- from fuel extraction to end use --
are the largest sources of air pollutants.
The air quality impacts of the various conservation programs are
nearly all beneficial. The pricing and taxing incentives that will
result in reductions in demand for electricity will reduce the air
pollution impacts due to electric power generation. For fossil-fueled
powerplants, these emissions include sulfur oxides, particulates, and
nitrogen oxides.
Small increases in air pollution may occur from the increased
manufacture of energy-saving materials, such as under the weatherization
program, but these impacts would be short term, whereas the benefits
would persist.
Conservation measures, such as gasoline taxes, and the gas guzzler
tax, et cetera, that reduce vehicle miles traveled, will reduce air
pollutant associated with automobiles.
However, increased reliance on coal for boiler fuel, in place of the
use of relatively cleaner oil and gas, has the potential to
significantly increase air emissions, principally sulfur oxides,
nitrogen oxides, and(()) particulate matter. These impacts would occur
throughout the entire coal fuel cycle, from mining to transportation and
conversion.
Many of these impacts can be avoided or minimized by the application
of appropriate mining techniques and advanced pollutant control
technology.
While existing environmental programs are expected to moderate many
of the environmental impacts of the coal conversion program, additional
environmental protection authorities and programs are proposed to insure
that this initiative is implemented in a manner consistent with the
environmental goals of this administration.
To this end, the administration support the following air quality
measures:
Legislation requiring best available control technology on all new
coal-fired plants, including those that burn low sulfur coal.
Significant deterioration policies to protect areas with clean air.
The establishment of a committee to report to the President on the
long-term health effects of expanded coal utilization.
Support for accelerated research and development programs in the
control of nitrogen oxides from combustion and fine particulate removal
techniques.
Accelerated research and development in fluidized-bed-combustion
techniques, which offer a substantial opportunity to reduce sulfur oxide
emissions.
Accelerated research and development of coal cleaning technology to
reduce the free sulfur and particulate content of coal prior to
combustion.
The administration's proposal to expand and accelerate the strategic
petroleum reserve to a 1 billion barrel capacity by 1985 also has
significant air quality implications.
The primary concern is the increased hydrocarbon emissions resulting
from additional oil transfer operations during the fill and withdrawal
phases. The administration is investigating appropriate mitigating
measures, such as floating roof tanks, vapor flaring, and vapor recovery
systems, so that the oil storage goals may be achieved in an
environmentally acceptable manner.
The total impact on air quality is further mitigated by the fact that
the fill and withdrawal operations are only temporary and intermittent
in nature.
The pricing incentives for domestic oil and gas production will also
result in increased air emissions associated with greater exploration
and development, notably in the Outer Continental Shelf, and Alaska
North Slope, and other frontier areas. As steam injection, in situ
combustion, or chemical injection become more attractive, air pollution
emissions associated with these advanced oil recovery technologies will
increase. These include particulates, nitrogen oxide, sulfur oxide, and
hydrocarbons.
The proposal to encourage cogeneration of electricity and process
steam by industrial plans is one which involves both beneficial and
potentially adverse impacts. However, cogeneration could result in
greater localized concentration of fuel burning, increasing emission
levels at specific locations. In the aggregate, the energy efficiency
program will reduce the need for power generation, with resulting
environmental benefits.(())
Water quality. The quality of the Nation's surface and ground waters
will also be affected by the national energy plan. Those conservation
measures which reduce energy consumption, production, and oil imports
will, of course, result in comparable reductions in associated effluents
and oil spill risks.
However, the emphasis on greater coal production may increase water
pollution in coal mining regions unless adequate precautions are taken.
Existing pollution control authorities will be fully implemented to
minimize acid mine drainage and other impacts of surface mining on water
quality. The increased combustion of coal in powerplants and major
industrial facilities will cause increased pollutant loadings in the
Nation's streams and coastal waters.
These discharges will vary greatly from plant to plant, and in many
cases may be eliminated entirely where zero discharge requirements and
recirculating ash sluicing water systems are applied.
Creation of new salt dome storage sites for the expanded petroleum
reserve will result in substantial quantities of brine for disposal in
the Gulf coast region. This brine may be injected into deep wells,
avoiding potable water supplies, or transported by pipeline for
discharge into the Gulf of Mexico.
Because barge and tanker traffic would have to increase to handle the
large volumes of oil to be stored, the potential for oilspills would
increase. /1/ Actual spill risk and size depend upon many factors in
addition in the amount of oil handled, including methods of handling,
types of transport, and location. In addition to the risk of accidents,
the volume of chronic oil pollution, due to normal loading and unloading
operations, would increase. As part of the environmental plan for the
oil storage program, the administration will develop environmental
protection criteria to reduce the oilspill risk. Oil spill contingency
procedures will be established to minimize the amount of oil spilled in
the event of a casualty and to control impacts on sensitive
environmental areas.
((/1/ On Mar. 10, 1977, the President proposed Legislation to reduce
marine oil pollution by strengthening regulations governing tankers
transporting oil to the united States.))
Both onshore and offshore oil and gas production will increase as a
result of the pricing incentives. Ground water impacts due to increased
production are related to possible leakage of produced fluids, leakage
of toxic chemicals used in advanced recovery processes, and the use of
large quantities of water in waterflooding operations. For offshore
production, impacts are due to the disposal of brine and the risk of oil
spills. To the extent that the pricing policy induces exploration and
drilling in frontier areas, such as Alaska or other environmentally
fragile areas, adverse water quality impacts may result.
In conclusion, the comprehensive national energy plan incorporates
both demand reduction and new supply initiatives, resulting in both
beneficial and potentially adverse environmental impacts. Increasing
energy demands will place additional stress on the quality of the
Nation's air and water resources unless adequate protective measures are
taken. The President's message articulates his belief that the goals of
sound environmental and energy planning are fully compatible.
(The following was submitted for the record:)(())
COAL CONVERSION
I. EXISTING AUTHORITIES
The Energy Supply and Environmental Coordination Act (ESECA) was
originally enacted in June, 1974, in the wake of the OPEC oil embargo
and was later amended in December of 1975. Section 2 of ESECA
authorizes FEA to take a range of actions to lessen the dependence of
the electric utility and industrial sectors on petroleum and natural gas
and simultaneously, to stimulate demand for coal. Section 3 contains
provisions to coordinate the burning of coal resulting from the
implementation of Section 2 authorities with the requirements of the
Clean Air Act as administered by EPA.
With regard to electric utilities, Section 2 requires the
Administrator of FEA to prohibit by order ("prohibition order") any
powerplant from burning petroleum products or natural gas if the
Administrator makes certain findings. The threshold finding is that the
powerplant either had the capability and necessary plant equipment to
burn coal on the date of enactment of ESECA or thereafter acquires it,
or is designed or required by FEA (under additional Section 2 authority
explained below) to be designed or constructed to be capable of burning
coal. In addition, the Administrator must find that (1) the burning of
coal is "practicable and consistent with the purposes of the Act" (which
are, in relevant part, to provide a means to meet essential fuel needs
in a manner consistent with existing national commitments to protect the
environment); (2) coal and coal transportation facilities will be
available during the period the prohibition is in effect; and (3) the
prohibition will not impair the reliability of service in the area
affected by the powerplant.
FEA has issued 32 prohibition orders covering 74 powerplants at 32
sites. Issuance of a prohibition order by FEA, however, is only an
initial step in the process which may end in a powerplant actually
switching fuel from oil or gas to coal. Before any FEA prohibition
order can be made effective, EPA must inform FEA that coal can be burned
in compliance with all applicable air pollution requirements which, with
respect to coal burning after December 31, 1978, means compliance with
State Implementation Plans (SIP's) approved by EPA under the Clean Air
Act. In addition, FEA is required by the National Environmental Policy
Act (NEPA) to assess the environmental impacts of prohibition and
construction orders. Only after EPA sign-off and completion of FEA's
environmental assessments can FEA make prohibition orders to powerplants
effective (by means of a "Notice of Effectiveness"). At this date EPA
has informed FEA that coal may be burned either now or at a specified
time in the future at 68 out of 74 powerplants which have received
prohibition orders. FEA is completing its environmental assessments,
including in some cases, environmental impact statements, with respect
to the prohibition orders. FEA has issued no Notices of Effectiveness
to prohibition order recipients.
Section 2 also authorizes, but does not mandate, FEA to require that
any powerplant in the "early planning process" be designed and
constructed to be capable of burning coal, provided that the
Administrator makes no determination with respect to such plant that
such construction would impair reliability or adequacy of service or
that an adequate supply of coal is not expected to available. FEA has
issued 142 construction orders and 30 Notices of Effectiveness to
construction order recipients.
Section 2 of ESECA also authorizes, but again does not require, FEA
to issue prohibition and construction orders to "major fuel burning
installations" (mfbi's) other than powerplants, after making the same
findings required to precede the issuance of such orders to powerplants,
with the exception that no reliability finding need be made for mfbi's.
The term "mfbi" is not defined in ESECA. For the purpose of
implementing its order issuance authority in ESECA, however, FEA has
determined to focus on those installations with a design firing rate of
100 million BTU's per hour or greater. As with powerplants, prohibition
orders to mfbi's may not take effect until after EPA determines
applicable air pollution requirements. At this date, FEA has issued no
prohibition or construction orders to mfbi's.
FEA's authority to issue prohibition and construction orders to both
powerplants and mfbi's expires on June 30, 1977, but its authority to
make such orders effective and to enforce them does not expire until
December 31, 1984.(())
Mr. BLOOM. Thank you, Mr. Chairman.
Mr. GINN. Thank you very much, Mr. Bloom. We appreciate you and Mr.
Hanfling being with us today.
You indicated in your testimony that, in fact, we are facing a real
squeeze in the Southwest and perhaps in other parts of the country with
regard to water.
The question is, do you think we will have enough water in these
parts of the country in the future to do everything that we wish?
Mr. BLOOM. Mr. Chairman, I believe it is necessary in answering a
question of that kind to see water as a limited national resource with a
large economic dimension. There is a great deal of water in the West
that is not conventionally viewed as available because it is not
economically accessible. It may be physically present but, because of
its chemical condition, because of the salinity of such water, or the
depth at which it is available, it has not conventionally been viewed as
a ready resource for energy or other developments.
But as energy economics change, water development economics will
necessarily change with them. And water supplies, including brines, or
even saline waters which may be subject to desalination processes, might
suddenly become a subject of serious resource planning because the
radically changed economics of energy in this country -- and they are
changing very rapidly and radically, as the committee knows -- will
force corollary changes and consideration of water resource pricing.
I have recently come to Washington from the State of New Mexico. The
State engineer of New Mexico is accustomed to telling people that there
is physically available in the middle Rio Grande Basin, under and near
Albuquerque, enough water to support six metropolitan areas the size of
Los Angeles for perhaps 100 years if it were economically feasible to
develop it.
Mr. GINN. One of our earlier witnesses estimated that, by the year
2000, about one-half of our energy would be utilized in powerplants to
generate electricity.
Do you agree with that statement?
Mr. HANFLING. Yes; that is approximately correct, Mr. Chairman.
Mr. GINN. Do you have any estimate as to the number of new
powerplants that will be needed by the year 2000?
Mr. HANFLING. Not right now. The estimates that Congressman
McCormack used seemed very close to the ones that the administration has
been talking about. His description of the problems of meeting even the
conservation estimates that the President has laid out was quite
accurate. And I do not have any exact numbers right now of how many
powerplants.
We would be happy to submit that for the record if you would like.
Mr. GINN. Thank you. We would appreciate having that information.
(The following was received for the record.)
The Federal Energy Administration estimates that 800 to 900 gigawatts
of conventional coal and nuclear generating capacity will be operating
in the United States by the year 2,000. Of the total, an estimated 300
to 400 gigawatts will be nuclear. The year 2,000 total compares with
250 gigawatts of operating capacity in 1977. The number of plants will
depend upon their size.(())
Mr. GINN. About 15 percent of our current electrical output is
generated by hydropower.
How much more hydropower potential does this Nation have?
Mr. HANFLING. As far as the President's message, he has asked the
Corps of Engineers within 90 days to come back to him and provide him
with an assessment of just that question.
One of the areas that he has asked the corps to particularly look at
is small hydro projects.
The Federal Energy Administration, in working with the New England
Governors' Conference, did a brief estimate that if we could revive --
if it was economically practicable to revive -- some of these very small
hydroplants that were in New England and that operated over the past 100
years, we might be able to get up to 3,000 megawatts of additional power
for the New England area.
Mr. GINN. Thank you.
Mr. Stangeland.
Mr. STANGELAND. No questions.
Mr. GINN. Mr. Hefner.
Mr. HEFNER. Thank you, Mr. Chairman. I have a couple of questions
in regard to the clean air amendments, on which I understand they are
having hearings and doing the markup.
The goals that the President has in mind -- well, do you feel that
you can meet these goals and still maintain the significant
deterioration portion of the Clean Air Act in areas where extra
generating plants are needed?
Is it possible that we can do this?
Mr. HANFLING. Yes, sir.
In developing the President's policies on the Clean Air Act
amendments, there was very close coordination between Mr. Kostel and Mr.
O'Leary on just that question.
Clearly, there will be many areas where it will be very difficult to
proceed and where coal could actually be burned because of the
non-attainment problems.
But, in the aggregate, it is felt that meeting the President's
environmental goals and meeting the President's energy goals can be done
simultaneously.
Mr. HEFNER. Have you taken into consideration in the Clean Air Act
amendments that the automobile emission standards will be met?
Mr. HANFLING. Yes, sir; those were all taken into account.
Mr. HEFNER. The chairman mentioned the fact that we are going to
have to use half of our energy for electrical plants in the year 2000.
Is that predicated on the fact that maybe we will be having
electrical automobiles and that type of thing, that is, that we will be
using electricity rather than fossil fuels in some situations?
Mr. HANFLING. The 50-percent number that the chairman used by the
year 2000 is a number that has been around for awhile.
Let me talk very briefly on some of the actions that might tend to
change that either higher or lower.
One, of course, is the extent to which the American public will
conserve. And the President made it quite clear that his program, even
if fully implemented, would not achieve all of the goals that he had
laid out.(())
Over and above the program that he has defined, and will define in
detail next week with the legislative package, he is calling upon the
American public to do additional conserving. And he has made it clear,
I think, in the factsheets that if these goals cannot be met, that there
will be additional actions that will be proposed in the future.
In the area of the electric car, in the rebate and penalty for
so-called gas guzzlers, it is stated that electric cars would always get
the maximum amount of rebate possible.
Now, just how much can be done in the area of the electric car
between now and the year 2000 is not clear. So I do not believe that
the number of 50 percent incorporates a significant part of our
automobile travel being done by electric cars.
On the other hand, if we can really aggressively achieve the goals
for cogeneration and peak-load pricing and those in the other kinds of
areas, that would tend to reduce the amount of new electric cogenerating
capacity that would be needed to achieve even a higher growth in use of
electricity.
I do not know if that has answered your question. It is a very
complicated balance sheet evaluation.
Mr. HEFNER. I think so.
You mentioned in your testimony areas like Texas and Oklahoma where a
great number of our oilfields lie. And I have read some place that we
leave perhaps half or two-thirds of our oil in the ground. This is oil
that we are not able to get. And there are very complicated mechanisms,
or technologies that use tertiary recovery, involving steam, and this
type of thing.
Now, are you addressing yourself to a sophisticated system of
technology to get more of this from the ground?
And in the high drought areas -- I am referring now to Texas and
Oklahoma -- does it present a problem when you are using steam to
recover some of the oil from the ground? Is the President addressing
the feasibility of maybe recovering more of this oil than we have in the
years past?
Mr. HANFLING. Well, the President has mostly focused on tertiary oil
recovery and the oil from so-called stripper wells by letting the prices
of that oil flow free and not be bound by any of the various price
levels that have been put on. That is basically saying the thing that
Mr. Bloom talked about, that the amount of recovery of tertiary oil will
be a function of the economic margin price than that oil can bring.
And in addition to the steam method of tertiary recovery, there are
some chemical methods that do not use as much water. But the volume
will be a function of the economic margin.
Mr. HEFNER. A hypothetical question: Say the price of American oil
rises to the world price, which is $12 to $14, or whatever.
Would this be an incentive to the oil companies to go back to some of
these wells that are considered to be dry, or whatever the term they
use, and go back with some expensive recovery equipment and maybe get
more of the oil from the fields?
If it was simply abandoned because it was so expensive in the past,
if there is decontrol, as the President has suggested, and if the oil
goes to the world price, would it be feasible for the oil companies
to(()) go back and take another look at some of the wells they have
abandoned?
Mr. HANFLING. As long as you ask about some of the wells, the answer
is yes. The key uncertainty for not just the oil companies, but for all
of us, is what will be the world oil price in 1985 and later on.
The President did point out in his message, and there was a CIA
report that talked about the basic world demand of about 60 million
barrels a year growing at maybe 5 percent a year, which is 3 million
barrels. And that is saying things like the world finding a new North
Slope every 9 months. And there are real questions about over how long
a period of time that the world, as an entity, can continue to find
large new sources of oil.
So if that happens, and the world oil price -- independent of any
political constraints or pushes on the oil price -- rises above the
$13.50 level, in that case the tertiary oil would clearly become very
economical.
Mr. HEFNER. The point that I am getting at -- and my figures may be
wrong, my percentages -- but I have read some place that we leave a
tremendous amount of oil that is just not feasible to recover.
Mr. HANFLING. That is correct.
Mr. HEFNER. But, in the event we do get into a real squeeze, could
it be recovered?
Is there technology being developed so that we could do this, even
though the price would be maybe above the world price?
Mr. HANFLING. That is right. Yes; ERDA is looking into some of the
more sophisticated recoveries.
I do not know what percentage is theoretically possible to get out,
but clearly it would be a lot more than we get out now.
Mr. HEFNER. You said in the West and the Middle West, that there
were water supplies that were not economically feasible to tap.
Now, where would these areas be?
Mr. BLOOM. I was thinking of some specialized conditions, such as
deep brine and saline water sources. And in much of the semi-arid West
-- the Rocky Mountains, Colorado, New Mexico, Arizona, Wyoming -- it is
well known that there are geologically and hydrologically identified
aquifers of water which, because of their depth, or because of their
chemical condition, are not economically suitable for development at
this time.
Mr. HEFNER. I thank you.
Mr. GINN. Are there questions from staff?
Mr. May?
Mr. Krouse?
Mr. Yates?
Mr. Bloom and Mr. Hanfling, we want to thank you very much for your
testimony.
Mr. BLOOM. Thank you very much.
HRG COR OTH
770421
BO GINN
CHAIRMAN, SUBCOMMITTEE ON INVESTIGATIONS AND REVIEW
--
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT --1977
(THERMAL POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER
GENERATION) 1977, STATEMENT OF BO GINN (PP 479 TO 484)
--
--
95-217
--
CW261882 CW261886
05764
(())
Mr. GINN. As we have now heard out last witness, the Chair would ask
your indulgence for a few brief thoughts about the past 3 days.
These have been the initial hearings of this subcommittee in the 95th
Congress, and I am very pleased by the quality of the testimony we have
heard, by our success in exploring some very complicated(()) issues, and
by the participation and contribution of so many subcommittee members.
As is the case usually, there is never enough time. But the Chair
has attempted to be fair to our distinguished witnesses, many of whom
have come long distances, and the Chair has attempted to be fair to our
subcommittee members by granting the time to ask questions as they
desired.
Your chairman is very grateful for the participation and cooperation
he has received.
We have heard some testimony that is worthy of our thoughtful
consideration, for it has a very direct relationship to the development
of new national energy policy. Last night, as we know, in a very solemn
joint session, the President put that task squarely before the Congress
and the American people.
If, as some of our witnesses have estimated, one-half of the Nation's
energy by the year 2000 will be consumed by the American people via the
mechanism of electrical generation, we had better be preparing ourselves
to accept more powerplants as neighbors. And cooling towers -- like
them or not -- and cooling lakes, seemingly will be a more prominent
part of our landscape.
That is not to say that cooling towers are environmental panaceas.
There are no environmental panaceas, just as there are no energy
panaceas.
While in no way would the chairman detract from the competence and
expertise of our fine witnesses, there is still the troubling
realization that we are at the frontiers of science in aquatic biology
and there is much that we do not know. This is undoubtedly due in part
to the fact that some things are unknowable with any degree of
scientific certitude.
They are rather matters of judgment -- of making tradeoffs -- of
selecting courses of action that inevitably will be influenced by
individual and institutional values. Alternatives are not easily
weighed. Quantification remains an elusive concept.
What is the value of 2,300-megawatt plant on the New Hampshire coast
versus the clam larvae that will be entrained in the plant's cooling
system, the value of Red Horse in the Wabash River, or striped bass in
the Hudson, the value of coal versus nuclear versus hydropower, assuming
we have that choice among fuels at a powerplant site?
The answers to these questions, of course, depend on whom you ask.
Under the circumstances, the most that we can expect is that we have
confidence in the process by which these decisions are made, and in the
people who make them, and who will be making them.
Following the advice of great thinkers like Edmund Burke and Thomas
Jefferson, we must insist that the goal be to do the greatest good for
the greatest number.
Certainly, our processes must be perfected. Duplication and overlap
must be eliminated. It makes no sense for the States, the NRC, and the
EPA to be doing essentially the same thing at different times and under
different legislative mandates. Combining and consolidation are
definitely needed.(())
Our laws, too, must be drafted with greater sensitivity to the havoc
that can result from ambiguous language. We have heard a great deal
about balanced indigenous populations, but do we know one when we see
one? It is very possible that some recommendations for administrative
and statutory changes may result from these hearings.
The subcommittee remains receptive to new ideas, new thoughts, new
approaches to balancing energy and environmental considerations.
The record of this hearing will remain open for 30 days for
additional comment from interested parties, including, of course,
members of the subcommittee.
Once more I thank our very excellent witnesses, my colleagues on the
subcommittee, and the staff. I thank you all, and the hearing is
adjourned.
(Whereupon, at 12:59 p.m., the subcommittee adjourned, subject to the
call of the Chair.)(())
APPENDIX
--------
MATERIAL RECEIVED FOR THE RECORD
STATEMENT OF THE AMERICAN PUBLIC POWER ASSOCIATION ON IMPACTS OF THE
CLEAN WATER ACT
The American Public Power Association is a national service
organization representing some 1,400 municipal and other local public
power systems in 48 states, Puerto Rico, the Virgin Islands, Guam and
American Samoa. Local public power systems have approximately 45,000 mw
of installed generation, which is almost 10% of the nation's generating
capacity. One hundred and eighty-one APPA member systems generate
electricity with steam-electric power plants.
Public-owned electric utilities seek to provide electricity in the
most economic and reliable manner consistent with environmental
concerns. They are directly responsible to the ratepayers in their
communities for all expenditures, including those for environmental
protection. As part of a community, the public power system has a duty
to operate the utility in such a way as to maximize the benefit of its
operation for its citizens.
As Dr. Noel de Nevers points out in a recent article on "Air
Pollution Control Philosphy" in the March, 1977, issue of the Journal of
the Air Pollution Control Association, "A perfect pollution philosophy
(and its implementing regulations) would be cost-effective, simple,
enforceable, flexible, and evolutionary." It is clear that the existing
Federal Water Pollution Control Act and its accompanying regulations
fail on virtually all counts.
Although the standard of cost-effectiveness, often set forth by
industry organizations, is pertinent in evaluating the Act, we believe
cost-effectiveness is an aspect of a broader and more critical standard:
impact on the quality of life. We will confine these comments to
certain effects of existing thermal regulations on the quality of life.
1. When electric rates are increased for any reason, less money is
available to the members of the community for other purposes. The poor
and people on fixed incomes are clearly the people most affected. Their
quality of life is impaired by some incremental amount. This is a
statistical statement similar to the EPA conclusion that certain air
pollutants in sufficient concentrations cause an increased number of
asthma episodes for a given population. Here we are speaking of some
increased incidence of elderly people subsisting on canned soup,
children being malnourished, and people postponing either medical care
or the purchase of medicines with grave health consequences. Any sort
of rate increase causes these events to happen. That is why, in a world
with finite resources, we must attempt to weigh the economic
consequences of our acts. In the case of thermal pollutants, we are
weighing these effects against certain positive gains: protecting fish
and other aquative life.
Congress should therefore direct the Environmental Protection Agency
to evaluate any proposed control measure in the light of both its
beneficial, and its detrimental, effects on the quality of life in the
communities affected.
2. The operation of the existing statute and regulations governing
thermal pollution raises a second issue: the extent to which it
reflects a reasonable order of priorities, flexible enough to meet
varying geographic needs. The value of water and the need to conserve
it vary dramatically across the United States. The control technology
which best meets the needs of most communities would seem to be one
which conserves water. We believe that best available control
technology must include the concept of water conservation. The impact
of insufficient water on agriculture and the quality of life potentially
has a much greater effect on the population does.(())
Thermal impacts on aquatic life vary greatly, depending on whether a
power plant is sited inland or coastally, in the North or the South, and
on whether a power plant discharges its effluents into an estuary or an
open ocean. Engineering design and water consumption will vary for
these environments. These inevitable variations suggest that Congress
should invest the definition of Best Available Control Technology with a
commensurate flexibility: BACT should be that technology which, in a
particular case, best optimizes the achievement of three objectives
water savings where desirable, greatest return on expenditures for the
community, and maintenance of a balanced indigenous population of
aquatic life.
3. If the issues of cost-benefit analysis and flexibly ordered
priorities were reasonably handled, then 316(a) and (b) would be
unnecessary. However, since at the present time that is not the case,
we ask only that unreasonable burdens of proof not be placed on
utilities seeking these variances.
Since the nature of the regulatory process is adversary, any effort
for making the legal procedures and the regulations simple is difficult.
The nature of the process must change from confrontation to mediation
before meaningful progress toward simplication can take place. The
adversary process prevents either side from conceding points for fear of
weakening their respective arguments. The end result is regulations
spelled out in great detail, administrative and judicial battles fought
over minutia, and yearly attempts to amend the law so that
administrative and judicial battles lost can be legislatively won. The
net effect is a system paralyzed by blizzards of papers. In some
respects the problem is similar to those encountered in labor relations,
with environmental groups cast in the role of labor unions, making
demands backed up by the threat of stopping construction, just as unions
use the strike weapon. We have traditionally dealt with labor relations
through mediation and collective bargaining. Congress should
investigate the practicability of legislation which would institute a
Federal environmental arbitrarion board to mediate environmental
disputes.
4. Finally, it is important to note that EPA is an organization with
limited resources. It should order the priorities for its efforts by
the criterion of greatest potential to improve the quality of peoples'
lives. In water pollution control measures, this clearly lies with
identification of the most toxic and widespread pollutants and
controlling them first. This point was emphasized in the President's
environmental message. We support it.
HRG COR GRA OTH
770421
JAMES T. MCFADDEN
SCHOOL OF NATURAL RESROUCES, UNIVERSITY OF MICHIGAN, ANN ARBOR, MICHIGAN
--
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT--1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, AN ARGUMENT SUPPORTING THE REALITY OF COMPENSATION IN FISH
POPULATIONS AND A PLEA TO LET THEM EXERCISE IT (PP 485 TO 516)
--
--
95-217
--
CW261887 CW261918
05765
(())
May 12, 1977
Mr. Charles A. Krouse
Subcommittee on Investigations and Review
Committee on Public Works and Transportation
B-376 Rayburn House Office Building
Washington, D.C. 20515
Dear Mr. Krouse:
At the recent Subcommittee Hearings of April 19-21, the testimony of
Peter M. Stern referred to a draft paper by James T. McFadden entitled:
"An Argument Supporting the Reality of Compensation in Fish Populations
and a Plea to Let Them Exercise It".
The paper has since been published and I am enclosing ten copies for
incorporation into the record of the hearings. In view of the
importance of compensation effects in the assessment of impacts on
cooling systems on aquatic populations, I request that this paper be
printed in the official record of the hearings.
Should you need additional copies, I will be happy to provide them.
Sincerely yours,
Edward G. Kelleher
Director, Water & Land Use
Environmental Programs
egk.id
enclosures (10)(())
AN ARGUMENT SUPPORTING THE REALITY OF COMPENSATION IN FISH
POPULATIONS AND A PLEA TO LET THEM EXERCISE IT
James T. McFadden
School of Natural Resources
University of Michigan
Ann Arbor, Michigan
Hoped from him had almost drained; His children all had been
entrained. The last striped bass in Hudson River Gave a pained,
convulsive shiver.
His civil rights had been infringed - On intake screen he hung
impinged. But yet one chance to outwit fate: "I think I still
can compensate]"
Key words: compensation, density-dependent, density-independent,
exploitation
INTRODUCTION
The concept of compensation is very important in assessing the impact
of power plant operation on fish populations because compensation
represents the capacity of a fish population to offset, in whole or in
part, reductions in numbers caused by entrainment and impingement. Not
everyone has rushed to embrace the concept, however. In fact,
government regulatory agencies and their scientific staffs involved in
power plant licensing proceedings have seemed reluctant to credit many
fish populations with significant natural compensatory capacity when
evaluating power plant impact. An example, presented for its utility
not as a criticism, is the original position of the U.S. Nuclear
Regulatory Commission on Indian Point Unit 2 on the Hudson River in New
York and later applied to the proposed Summit Power Station Units 1 and
2 in Delaware: "Examination of relevant information concerning striped
bass populations has led the staff to conclude that density-dependent
regulatory processes as described above are not operative in East Coast
striped bass(()) larval and juvenile populations, because the breeding
stock is not sufficient to saturate the nursery areas to population
levels at which such processes would be operative" (USAEC 1974, citing
USAEC 1972). Some softening of this stand was reflected in the NRC
staff's review of Indian Point Unit 3 (USNRC 1975) and its testimony for
the Summit Power Station (Christensen et al 1975) for which it was
maintained that the fishery operates in a compensatory manner but that
natural compensatory processes should not be relied on to a major extent
to offset power plant impact in heavily fished populations.
By contrast, I have always maintained, as a general proposition, that
some natural compensatory capacity must be recognized as a logical
necessity; that general observation of natural populations, a wide
range of specific scientific studies, and the prevailing concepts of the
field of fishery management all support this view; and that the
operation of compensation must be taken into account in order to make
realistic decisions in management of fish populations, whatever the
source of disturbance or impact. Most people seem to intuitively expect
that killing some fish will reduce the size of the population - a
proposition which seems logical enough but is not always true. Upon a
little reflection, I would argue that it should be at least equally
obvious that a sustained removal of fish from a population will
eventually result in reduced natural death rate or increased
reproduction by the remainder.
This paper presents an argument in favor of the reality of
compensation in fish populations - it is not a balanced examination of
pros and cons. The ideas, at first developed in the relative
tranquility of an academic environment, have been shaped through a
succession of regulatory agency hearings in which too much
open-mindedness has seemed the short road to intellectual extinction.
They are called "adversary" proceedings for good reason. Hence, while
trying to be fast and logical, my main goal has been to make converts
rather than compromises. Success has been limited, but I remain
optimistic.
HISTORICAL DEVELOPMENT OF THE GENERAL CONCEPT
The term "compensation" refers to the tendency of populations of
living organisms to experience (a) an increase in death rate or decrease
in birth rate as they grow in density, thus establishing some ultimate
upper limit, and (b) a decrease in death rate or increase in birth rate
as population density declines, thus leading to stabilization before
extinction, or even to an eventual return to higher numbers.
The concept arises directly from recognition that living organisms
depend on resources such as food and space, which are available in
limited amounts. When density of organisms is low, competition for
resources is slight; when density is high, competition becomes intense
to the disadvantage of survival or reproduction. It is also possible
that large populations will attract greater(()) attention from
predators, either because the latter congregate in the vicinity of a
food source or reproduce more rapidly when prey is abundant or because
predators become conditioned to seek the more abundant prey.
Cannibalism also may contribute to a compensation in some species
because the large numbers of parents from which initially large broods
arise also constitute a large pool of predators. The number of physical
and biological forces that may play a role in compensation is very
large, and the possible modes of operation are numerous and complex. As
Cushing (1975, p. 237) states, "Any description of the phenomenon
reveals the stability and leaves the possible mechanisms indistinct."
This is not to say that no mechanisms of compensation can be identified,
many indeed have been identified, and a number of examples will be cited
in the following sections. However, of the number of mechanisms
operating simultaneously (often with a high degree of interaction) and
subsequently through the various life-history stages (with intensity of
operation at each stage determined in part by the population density
established in the preceding stage) only a few may be statistically
verifiable during a single period of observation. Undoubtedly too, the
operation of one mechanism under certain environmental conditions may
preempt the operation of other potentially effective mechanisms.
Thus a common state of affairs is to observe a population's stability
as generated by compensation and to estimate the compensatory capacity
while being unable to explain all or even very many of the mechanisms
involved. This latter limitation has not prevented scientists from
developing highly successful management programs grounded on the reality
of compensation, as will be shown.
Because compensation involves changes in birth rates or death rates
in response to changes in population density, the biological processes
involved are often termed "density dependent." Thus, a density-dependent
increase in mortality rate might be expected to result from a
substantial increase in population density. Strictly speaking, only
processes that reduce population growth at high densities and increase
growth at low densities - "direct density-dependent processes" /#/ - are
compensatory. Nevertheless, the term "density dependence" is often used
synonymously with "compensation."
((/#/ Mortality may also take an inverse density-dependent form;
that is, the mortality rate decreases with an increase in population
density. This could happen where very abundant prey "saturate" the
capacity of a predator to capture them, thereby causing a smaller
fraction of the prey to be caught when they are more abundant. Other
types of "protection in numbers" would bring about the same result.
Inverse density-dependent mortality is not synonymous with
compensation.))
The concept of compensation has been long and widely accepted. In
1798 Thomas Malthus published his famous Essay On The Principle Of
Population (Malthus 1798) in which he maintained that, when unchecked, a
population increases in a geometrical ratio; that the increase is
always up to the(()) limits of the means of subsistence; and that
further increase is prevented by war, famine, pestilence, etc. He
termed the processes involved in regulation of population size the
"struggle for existence." His observations, based on human populations,
clearly encompassed the compensatory concept that population growth
declines as population size increases. The ideas presented by Malthus
were not entirely new; for example, Machiavelli had realized 275 years
earlier that human populations in some areas might increase beyond the
limits of subsistence and be checked by want and disease. In 1835,
Quetelet, a Belgian statistician, concluded that a population's
resistance to growth increases in proportion to the square of the rate
of population growth (Quetelet 1835). In 1838, Verhulst, a student of
Quetelet, published a short essay developing an equation describing the
course of population increases in proportion to population density; his
equation generated the S-shaped population growth curve so familiar
today, the logistic curve. Nearly 100 years later, this formulation of
population growth was rediscovered by Pearl and Reed (1920) and was soon
shown to describe the performance of such diverse organisms as yeast,
protozoa, fruit flies, and man. Pearl recognized the importance of
density-dependent mortality and reproduction: "In general there can be
no question that this whole matter of influence of density of
population, in all senses, upon biological phenomena, deserves a great
deal more investigation than it has had. All indications are that it is
one of the most significant elements in the biological, as distinguished
from the physical, environment of organisms" (Pearl 1930, p. 145).
In the last four decades, the concept of compensation has been
debated, refined, and amplified. A well-balanced review is presented by
Krebs (1972, p. 269-288). Major contributions to our understanding have
come from studies of insects, fishes, birds, and mammals. Despite the
long history of the concept and its simple, almost intuitive basis, its
explicit formulation and modern emphasis are usually attributed to the
Australian entomologist Nicholson (1933). His inspiration was later
referred to by another notable population ecologist (Haldane 1953) as "a
blinding glimpse of the obvious."
Thus, the emergence of the concept of compensation can be traced over
the past 450 years. It seems to have originated in observations of
local human populations "struggling for existence" in the face of
limited resources. The first formulations were crude and partially
incorrect. It was Pearl's work in the 1930s that established the
generality of compensation among diverse types of living organisms.
Common to all these perceptions was the realization that populations
possessed a potential to increase at a much more rapid pace than was
realized, except possibly when they were so small that the resources
upon which they depended were, for all practical purposes, infinite in
extent. To appreciate the reality, pervasiveness, and imminence of the
operation of compensation within a population, one should look first to
this "biotic potential" as it is sometimes called and then envision as a
population grows in size" the absorption of the potential increase by
innumerable checks(()) (in the shape of mortality) +++ The survivors
flourish by the deaths of their brothers and sisters, and the stable
numbers must be the result of a fine control of mortality, perhaps a
density dependent one" (Cushing 1975).
Some feel for the magnitude of biotic potential can be gained by
artificially simplifying the life history of a reasonably representative
fish. The striped bass, which has inspired endless volumes of testimony
in power plant hearings, serves as a useful example here. Assume that
each fish spawns once in its lifetime at age 6; half are females, each
producing 700,000 eggs; each fish reaches 457 mm in length; and all
the eggs survive to become mature fish. These assumptions cause the
biotic potential to be seriously underestimated since some females spawn
at an earlier age and many live to spawn again at older ages. Beginning
with one spawning pair, such a striped bass population would grow to
astronomical numbers by the end of three generations (18 years). At the
end of the third generation, all the fish laid end to end would encircle
the earth at the equator 500,000,000 times or would stretch from the
earth to the sun and back again 60,000 times. This is the biotic
potential, which is increasingly suppressed by density-related mortality
factors as a striped bass population grows from some minimal initial
density toward an upper limit set by the carrying capacity of the
environment. In 1879-1881, 435 striped bass were transplanted from the
east coast to San Francisco Bay; within 20 years, annual catches were
500 tons (Merriman 1951). Under minimal densities, the population grew
explosively; within a relatively short time, numbers became large
enough that population growth leveled off. The innate capacity for
growth is the foundation of the compensatory capacity possessed by
striped bass.
Approaching population processes of fish in general from this
perspective, one envisions an established population as one in which
survival or reproduction (or both) have been vastly suppressed --
precisely for the reason that the population has become large. The
natural factors that operate to suppress the biotic potential are many
and are completely intertwined -- availability of food, predators,
disease, and physical factors such as temperature. Many of them
(probably all of them under certain conditions) have greater suppressive
effect when the population is large than when it is small. If some new
effect that kills off part of the population is introduced, it reduces
the suppressive effect of many factors in the population's environment.
As a consequence, survival rate or reproductive rate becomes higher --
the population compensates in part for the reduction in size. When
something causes a population to either increase or decrease in size,
there is a tendency for eventual return to average size when the
perturbation is removed. "Populations do not usually become extinct or
increase to infinity. This is what is loosely termed the "balance of
nature" (Krebs 1972).
Rather than being a fragile living system then, the population
typically is vigorous and resilient. This sense was captured admirably
by the eminent interpreter of marine science, the late Rachel Carson,
who, in describing the(()) life of the seacoast, wrote, "Whenever the
sea builds a new coast, waves of living creatures surge against it,
seeking a foothold, establishing their colonies. And so we come to
perceive life as a force as tangible as any of the physical realities of
the sea, a force strong and purposeful, as incapable of being crushed or
diverted from its end as the rising tide" (Carson 1955).
The 10-year span from the mid-1960's to the mid-1970's has seen an
impressive and timely increase in public awareness of environmental
problems. With this awakening has come an accurate perception of the
fragility of the ecosystem, which may seem at first to conflict with the
description of life as a force "as incapable of being crushed or
diverted from its ends at the rising tide." The apparent conflict is
easily explained. Populations of moving living organisms have little
means of coping with wholesale destruction of environmental resources
upon which they depend. If specific foods or narrow temperature ranges
to which they are highly adapted are destroyed, the population perishes.
Likewise, exposure to toxic substances such as the many organic
compounds introduced into the environment by man, with which a natural
population has no evolutionary experience, is likely to prove diastrous.
Most of the current environmental awareness is built on public
recognition of these two classes of problems -- wholesale destruction of
environmental resoruces and the release of exotic toxic substances. A
third class of man-caused problems -- the imposition on a population of
increased mortality that takes a form similar to natural predation --
has an entirely different effect on most species. This is the kind of
impact to which the population has been adapted by thousands or millions
of years of evolutionary experience. The agent of mortality - predatory
fish, commercial or sport fishermen, or power plants -- is an
indifferent matter from the standpoint of population response. When the
population is reduced in numbers, the survival rate or reproductive rate
among the remaining members tends to increase; a compensating response
is generated. This is the reality upon which successful management of
agriculture, forestry, wildlife, and fisheries is carried on today. The
population has a measurable and often impressive capacity to persist in
a healthy state in the face of deliberate removals by man. Populations
of most species, while fragile when deprived of basic life requirements
or exposed to exotic toxicants, are robust in the face of this
predation-type mortality.
A GENERAL CASE ARGUMENT
A formal argument for the general operation of compensation in animal
populations can be developed as follows. It is generally observed that
populations fluctuate within some more or less well-described bounds;
that is, they neither increase without limit nor commonly decline to
extinction during the normal time span or human observation.(())
A useful simplication is to represent a population as persisting at
or near some average level of abundance or equilibrium level represented
by KO (Fig. 1). As a generalization, the birth rate is expected to
decline and the death rate to increase as a population becomes larger
and larger. Linear relationships are used to simplify the illustration,
even though the real relationships would almost certainly be nonlinear.
Death rate would reflect the combination of natural deaths and any
deaths imposed on the population by activities of man. In Fig. 1, the
equilibrium population density K0, is maintained, on the average, by the
balance between the death rate (I0, representing the prevailing natural
death rate plus a 0-level of man-caused deaths) and the birthrate
characteristic of the population at density K0. If a low level of
man-induced mortality is added to the baseline natural mortality, the
overall death rate would increase to a level IL (Fig. 1). The
population would then decline and the birth rate would consequently
increase until a new equilibrium density had been reached (KL) at which
the birth rate equaled the new death rate IL. Imposition of a still
higher man-indiced mortality would increase the total death rate to IH,
and the population would equilibrate eventually at a still lower average
density KH. Thus, one can think of the population as fluctuating
through time around some average level of abundance determined by the
overall death rate (fig. 2). For a 0-level man-induced environmental
GRAPHIC OMITTED
Fig. 1. Relationship of birth rates and death rates to population
density. The death rate I0 and the population density K0 represent zero
environmental impact; the death rate IL and the corresponding
population density KL represent a low level of environmental impact
superimposed on a fish population; the death rate IH and the
corresponding population density KH represent a fish population
subjected to a high level of enviromental impact. In each case, the
population equilibrates at that density at which the birth rate and
death rate are equal.(())
GRAPHIC OMITTED
Fig. 2. Hypothetical population histories corresponding to zero,
low, and high levels of environmental impact represented in Fig. 1.
impact, this would be a population density K0; for a low level of
environmental impact, a population density KL; and for a high level of
environmental impact, a still lower population density KH.
This example was chosen to illustrate as simply as possible the
relationship among death rate, and average population density where
compensation is operative. The increase in total mortality depicted in
this example could have been offset at lower population levels by an
increase in survival among members of the population not killed by the
man-induced impact rather than by the increase in birth rate; the
principle would be the same.
Referring again to the example in Fig. 1, the initial condition
postulated is a population fluctuating around an average equilibrium
level K0, for this population, the birth rate (b) and death rate (d) on
the average are equal. Thus, the rate of population increase (r) is 0:
r = b - d = 0.
When the population is first subjected to additional mortality (no
matter how slight) caused by man, the death rate is increased and
exceeds the birth rate. The population's rate of growth (r) becomes
negative -- that is, the population declines in numbers:
b - d < 0.
If the increment of mortality is sustained, the population eventually
will dwindle to extinction unless the birth rate increase or the natural
mortality rate decreases sufficiently to allow the overall birth and
death rates to again become equal. This would be true if the removal is
sustained over a long enough period, even if only a single organism per
year is killed over and above(()) the pre-impact natural mortality rate.
Therefore, every population that is subjected to sustained additional
mortality through man's activities and does not become extinct must
possess some compensatory capacity. The list from everyday observation
is impressively long. Species of birds and mammals commonly killed
along highways -- raccoons, squirrels, skunks, deer, pheasants,
woodpeckers, sparrows -- must have some compensatory capacity, or the
new predator, the automobile, by now would have pursued them far down
the trial toward extinction. The same can be said for pest insects
attacked with weapons ranging from rolled newspapers to organic
chemicals. Any wild plant or animal harvested by man for sport or
subsistence -- and many have been pursued since antiquity -- must have
some form of compensatory capacity to have survived. However, this
compensatory capacity is not unlimited, as proven by the extinction or
near extinction of a number of species caused by man's predatory
activity. Ecologists now understand that compensatory capacity is most
limited in species having relatively low maximum reproductive rates.
Simulation models are valuable aids in making decisions about
management of complex systems, such as fish populations, and a variety
of models have been used to estimate power plant impacts. The
compensation argument just developed finds support in the realistic
exercise of such simulation models. If a fish population model is
operated from an initial state representing a population at a stable
equilibrium or one fluctuating around an average equilibrium level and
if removal of a single additional fish per year is simulated over a long
period, the population will dwindle to extinction unless compensatory
processes are simulated as well. The extinction case clearly is not a
realistic simulation of commonly oberved population performance.
Further, because populations incorporate negative feedback processes
under completely natural conditions, it does not suffice to confine
compensatory mechanisms to those accounted for by the activities of man
-- such as density-dependent fishing. The general case argument
requires that some natural compensatory process be operative to
represent realistically and logically the performance of a population of
living organisms.
COMPENSATION IN FISH POPULATIONS
Both the historical development of the general concept of
compensation and the formal argument presented above support the view
that compensation is operative in fish populations. This section
supports this view with three additional lines of evidence:
The historical development of the concept is traced through its
applications in fishery management, and the present-day consensus
held by the world's leading fishery scientists is summarized.(())
A selection of compensatory mechanisms that have been
convincingly demonstrated to operate in fish populations is
reviewed.
A large number of cases, in which substantial levels of
exploitation by sport or commercial fisheries have been sustained
by fish populations without serious depletion, are cited.
History of the Concept of Compensation in Fisheries
Historically, the formal foundation of modern fish population
dynamics was laid down in the mid-1930s. Picking up the thread of
historical development of the concept of compensation with the
rediscovery of the logistic curve by Pearl and Reed (1920), the first
explicit application of the concept in this form to fisheries seems to
have been in 1933 when a parallel between the sigmoid population growth
form in yeast and growth in numbers in a fish stock was noted (Hjort
Jahn, and J. Ottestad 1933). The first formal application of the
logistic to management problems in a major fish stock was Graham's
(1935) application to the plaice stock of the North Sea.
The logistic and its various modifications such as the "Schaefer
model" (Schaefer 1954) have since been applied to such important
fisheries as the Antarctic blue whale (Chapman 1964), Icelandic cod
(Gulland 1961), Pacific halibut (Schaefer 1954), and Icelandic haddock
(Gulland (1961). "The development of the logistic curve in fisheries
and in other fields implied that loss of stock with increased mortality
was compensated by increased recruitment" (Cushing 1974, p. 237). Thus,
since the publication of Graham's work in 1935, the concept of
compensation clearly has been a basic tenet of scientific management for
the world's major fish stocks.
Interpretation and application of the logistic curve to fishery
management is conveniently summarized in a recent book. The Management
of Marine Fisheries, by J. A. Gulland, an internationally noted
scientist with the Food and Agricultural Organization of the United
Nations (Gulland 1974, p. 68-86). He makes the following points about
compensation from the basis of the logistic model:
Though the curves of Figures 3 and 10 and the model on which
they are based are highly simplified descriptions of the changes
in a fish stock under exploitation, they do illustrate most of the
biological features important to fishery management. The first is
that it is impossible to exploit a fish population without causing
some change. This may seem obvious, but with the present day
concern with the natural environment, and the desire to minimize
ecological disturbance, there may be a feeling that a well-managed
fishery should cause no changes, which is impossible +++ The
second important point is almost the converse of this. That is
provided the catches are not too great, the decline in abundance
is not continual. After a time(()) the population will reach a
new equilibrium, at which the same catches can be maintained
indefinitely year after year. Finally, if the stock is allowed to
be depleted too far, though still without driving it to
extinction, its productivity and the catches that can be taken
will be reduced.
Ricker's commentary (1958, p. 250) on the same basic compensatory
principle applied in fishery management is:
The principle reasons for lessened surplus production at higher
stock densities are three:
1. Near maximum stock density efficiency of reproduction is
reduced, and quite commonly the actual number of recruits is less
than at smaller densities. In the latter event, reducing the
stock will increase recruitment.
2. When food supply is limited, food is less efficiently
converted to fish flesh by a large stock than by a smaller one.
Each fish of the larger stock gets less food individually, hence a
larger fraction is used merely to maintain life, and a smaller
fraction is used for growth.
3. An unfished stock tends to contain more older individuals,
relatively, than a fished stock. This makes for decreased
production in at least two ways: (a) Larger fish tend to eat
larger foods, so an extra step may be inserted in the food
pyramid, with consequent loss of efficiency of utilization of the
basic food production, (b) older fish convert a smaller fraction
of the food they eat into new flesh -- partly, at least, because
mature fish annually divert much substance to maturing eggs and
milt.
Under reasonably stable natural conditions, the net increase of
an unfished stock is zero, at least on the average; its growth is
balanced by natural deaths. Introducing a fishery increases
production per unit of stock by one or more of the methods above
and so creates a surplus which can be harvested. In these ways "a
fishery, acting on a fish population, itself creates the
production by which it is maintained" (Baranov). Notice that
effects 1 and 3 above may often increase the total production of
fish flesh by the population -- it is not merely a question of
diverting some of the existing production to the fishery, although
that also occurs.
The logistic-type models have been used successfully in fishery
management since their inception and are still used today, but they have
long been recognized as embodying important basic principles in an
over-simplified way. For example, they do not distinguish the
contributions of growth of existing stock and recruitment of new
individuals; they assume that the entire population is involved equally
in compensatory response; they represent density-related changes in
population as occurring instantaneously and continuously.(()) A very
important advance in conceptualizing fish population dynamics in a more
realistic way is Ricker's (1954) exposition of the problem of stock and
recruitment. Ricker emphasized the compensatory nature of the numerical
relationship between parent fish and the progeny they produced and the
importance of the earlier life history stages in compensation, and he
formulated a mathematic model embodying these concepts, which has been
applied to major fish stocks throughout the world. Ricker's model
operates on the same basic principles given in the formal argument
presented earlier in this paper and implicit in the logistic model --
but in a much more refined and realistic way. It is explained here in
graphical form because of its usefulness in clarifying the compensatory
responses of fish populations to new increments of mortality (e.g.,
fisheries, power plant operations, and pollution).
Consider a parent stock of fish and the stock of progeny that it
produces, expressing both the parents and progeny in the same units of
measurement. If the rate of future replacement of the present
population is independent of the size of the population, the
relationship between parental stock and progeny will be described by a
45 diagonal line as shown in Fig. 3 (replacement reproduction), and
this will be referred to as a density-independent relationship between
parents and progeny. If environmental conditions permit survival of a
very large parental stock, that stock will produce a generation of
progeny equal in size to itself; by the same token, if unfavorable
environmental conditions reduce the parental stock to some very low
GRAPHIC OMITTED
Fig. 3. Relationship between parental stock density and production
of progeny for a hypothetical fish population.(()) density, it will
produce again a generation of progeny equal to itself. Under these
situations the size of the population could, by chance, increase without
limit or dwindle to extinction; no compensatory process operates to
increase the rate of population growth at low levels of density, thus
deflecting it from decline to extinction, or to decrease the rate of
population growth at very high levels of population density, thus
deflecting it from unlimited expansion. To persist within some more or
less well-defined limits of abundance, a fish stock must have some
compensatory (density-dependent) processes.
The curve in Fig. 3 represents a density-dependent relationship
between parental and progeny stocks. At very low levels of parental
stock, the population tends to increase severalfold in the progeny
generation. At point K, the parental stock is replaced by exactly the
same size progeny stock (the reproduction curve intersects the 45
diagonal), and this density is the equilibrium point or replacement
level of reproduction. If no environmental fluctuation deflects the
stock from point K, it will remain perpetually at that density, exactly
replacing itself over each succeeding generation. At densities above
replacement reproduction, the parental stock will fail to replace itself
and the population will decline back toward the equilibrium point. If
stock density is deflected by environmental conditions below the
equilibrium point, the parental stock will more than replace itself;
that is, the population will tend to increase back toward replacement
level over succeeding generations. At replacement level, the parental
stock exactly replaces itself in the face of baseline natural mortality,
producing no surplus progeny as a buffer against removal by an
environmental impact such as power plant operation, a fishery, or
pollution.
Figure 4 explores the situation in which an increment of mortality is
imposed on the population of Fig. 3, thus deflecting it away from the
replacement level of parental stock. Let us say, for example, that an
amount of parental stock equal to the line segment cK is removed from
the population before reproduction. The parental stock now consists of
Oc units, and this parental stock produces ca units of progeny. At this
stock density, the parents produce cb units of offspring (sufficient to
replace themselves) plus a surplus ab, which may be removed by the
fishery or killed by power plant operations or pollutional inputs but
which still leaves the population equilibrated at a density Oc. For
this situation, the removal, ab, from the population is about 28% of the
progeny stock, ac.
If an additional increment of removal is imposed on the stock a total
of de units of progeny stock), the removal rate (de/dt), will be 60% and
the population will sustain this level of removal, equilibrating at a
density Of. To hold the stock at this reduced density, 60% average
removal must be sustained. If this rate of removal is reduced, the
parental stock will more than replace itself and succeeding generations
will tend to increase until the population equilibrates once again at a
higher level of density. A still higher percentage removal (70% (gh/gi)
for example), if sustained, will reduce the population to the density
O1.(())
GRAPHIC OMITTED
Fig. 4. Equilibrium exploitation rates for parent-progeny
relationship of Fig. 3. (Equilibrium at c units of parental stock is
maintained with an exploitation rate of 28%, a level of f units of stock
by an exploitation rate of 60%; and a level of i units of stock by an
exploitation rate of 70%).
Two important points emerge. First, an increment of removal imposed
on a fish stock drives the stock to a lower average density at which the
population once again equilibrates, but the increment of mortality
imposed and sustained does not drive the population into a steady
downward spiral leading to severe depletion or extinction. This point
was advanced earlier in summarizing compensation concepts from Gulland
(1974) and Ricker (1958). Second, the rate of removal must be sustained
from generation to generation if the stock is to be held at a reduced
level of abundance; increasingly higher percentage removals must be
sustained if the stock is to be driven to successively lower levels of
density.
Cushing (1975, p. 238) states:
The equation relating recruitment to parent stock used
initially by Ricker and later by Beverton and Holt is a convenient
summary of present opinion on the natural regulation or numbers in
a fish population. Recruitment depends on stock modulated by
density-dependent mortality.(())
Gulland (1974, p. 101) also reflects on the widespread acceptance of
this type of formulation of compensation:
Other curves could be derived with other assumptions, but so
far for all stocks the observations of stock and recruitment,
though often scattered, have been consistent with at least one of
the theoretical curves.
To promote discussion of the present state of knowledge and of future
research requirements in the face of the large post-war increase in
global fishing intensity and problems in the world food supply, a
symposium on fish stocks and recruitment was convened in 1970 by the
International Council for the Exploration of the Sea, the International
Commission for North Atlantic Fisheries, and the Food and Agricultural
Organization of the United Nations. There were 82 participants from 20
countries. The published proceedings (Parrish 1973) recorded the
following scientific opinions on the importance and prevalence of
compensation or density dependence in fish populations:
When J. Tanner (1966) concluded after the analysis of density
dependence in 111 different populations representing 71 species.
"It is significant that the processes known to regulate vertebrate
populations affect either reproduction or the survival of
juveniles," he could have been reciting from the current litany of
fisheries biology (Paulik 1973, p. 302).
The papers and discussions indicate that recruitment +++ in
both marine and freshwater fish and shellfish populations is
determined by a complex of density-dependent and
density-independent factors. The former may act as the main
source of control governing the form of the relationship between
recruitment and spawning stock size (egg production), and the
latter give rise to the well-known short-term, irregular
fluctuations in recruitment characteristic of some teleost species
having high fecundity. The papers and discussions indicate
further that in most species for which detailed information is
available these factors operate mainly during the early stages of
development (i.e., between the egg and the end of the first year
of life) so that year-class strength is determined and population
control mechanisms for most fish stocks operate before the
individuals enter the exploited phase" (Parrish 1973, p. 5).
It was the consensus of the meeting that density dependence
does occur in all fish stocks at some point, and this is itself a
major transition from earlier dogma. As R. Jones and Bowers
pointed out, the precise age at which density becomes of major
significance varies from stock to stock so that, for example, the
plaice may have properties that are different from haddock.
Plaice growth may be(()) density-regulated while they are in the
plankton, and a relatively constant number may transform to the
demersal habitat.
Dr. LeCren pointed out that freshwater species such as trout
and salmon are really not very different in their fundamental
biological machinery from the marine ones and that the same kind
of density dependencies probably occur in marine and fresh water.
The general acceptance of density dependence as relevant to all
marine stocks is probably of great value since it avoids the nasty
theoretical problem, specifically, that the absence of any
density-dependent feedback system implies a random walk process in
stock size which would predict much greater temporal variations in
population size than are actually observed (Slobodkin 1973, p.
10).
Compensatory Mechanisms
As discussed earlier for animal populations in general, a wide range
of environmental agents and compensatory mechanisms may be involved in
the overall compensatory response generated by a fish population.
Different mechanisms may operate at different levels of population
density or under different environmental conditions, and the effect of
one compensatory mechanism may preempt the activation of alternate
mechanisms that are potentially available. A wide range of population
processes also may play a significant role in the compensatory response.
Furthermore, compensation may be masked statistically either by its own
effectiveness, which may so stabilize some fish populations that
observations on population processes at very different levels of density
are hard to obtain, or by the imposition of a large amount of random
variation in population parameters caused by density-independent
factors. Thus, it is usually not profitable to focus on a single
mechanism of compensation or on even a small complex of mechanisms to
test the reality or extent of the phenomenon. However, this is not to
say that the existence of such mechanisms is a matter of theory,
speculation, or mystery; on the contrary, the compensatory operation of
many different mechanisms and population processes has been proven in
fish populations. The 17 examples in Table 1 drawn from the scientific
literature provide a concrete understanding of the remarkable resilence
of fish populations in the face of increases in mortality caused by man.
Capacity of Fish Populations to Withstand Mortality
While it is clear that the concepts in fisheries science were
developed through experience with stocks subjected to exploitation by
man, nothing explicit has yet been stated here about the degree of
resiliency possessed by these stocks. Remaining unanswered are such
questions as how large an(())
Table 1. Examples of the resiliency of fish populations to
man-induced mortality
1. A dense population of perch in Lake Windermere was
subjected to an extensive experimental fishery for five years
ILLEGIBLE 1958), reduction of the population to 3% of its original
density resulted in a fourfold increase in both mean weight and
fecundity of adults.
2. Brown trout populations in a small Swedish Lake were
compared for six years before and six years during exploitation
with gill nets and sport fishing gear (Lindstrom, Fagerstrom, and
Gustafson 1970). Although mean size decreased, the individual
growth rate (lengths) increased an average of 10.5% after
exploitation.
3. Bluegills in three large Michigan ponds were subjected to
annual reductions of 0, 60, and 90% in young-of-the-year during a
five-year experiment (Beyerle and Williams, 1972). Survival
averaged 0.5, 8.1, and 12.2% respectively. Growth of fish in all
three ponds was similar, evidently as the result of compensatory
survival rates.
4. Commercial exploitation of plaice off the coast of Scotland
increased greatly after 1956 (Bagenel 1958). Fecundity increased
from 137,000 eggs per female in 1956-57 to 157,000-161,000 eggs
per female in 1958-1961. The data suggest that heavy fishing
reduced the population size but that survivors had proportionately
more food, resulting in higher fecundity.
5. Large brook trout in a Canadian Lake were subjected to 90%
experimental exploitation by gill nets (Smith 1956). Survival of
planted fingerlings was two times that existing before gill
netting of large trout. Although growth data are not easily
interpreted, the growth rate of fingerlings appeared to have
decreased after exploitation.
6. Data from seven brook trout populations were studied to
compare fished and unfished populations (Jensen 1971). Fishing
resulted in more young and fewer old fish. Increased age-specific
fecundity compensated for increased mortality from fishing. Since
fecundity increased with size, the data suggested that growth may
be the most important variable in a fish population's adjustment
to exploitation.
7. Reductions in numbers of adult pike were observed in Lake
Windermere (Kipling and Frost 1969). There was a significant
increase in eggs per gram of fish after the population density had
been falling for several years, suggesting a compensatory response
in fecundity.
8. Ciscoes in three Canadian Lakes were subjected to varying
degrees of exploitation (Miller 1950). Total mortality averaged
61 and 60% in two midly exploited lakes and 70.5% in an unfished
lake. Under moderate and then heavy exploitation, total mortality
in one lake averaged 80 and 94% respectively. The comparison
suggests that fishing mortality reduces natural mortality, but
that the overall effect of moderate to heavy exploitation is an
increase in total mortality.
9. Brook trout in a Wisconsin stream were subjected to varying
amounts of sport fishing (McFadden 1961). There was a significant
regression of natural mortality on angling mortality so that
exploitation reduced natural mortality. Total mortality increased
with exploitation, but there was a broad range in the number of
spawners and size of the egg complement, which would result in
adequate numbers of progeny.(())
Table 1 (continued)
10. Rainbow trout populations maintained by stocking were
compared in five New Zealand lakes (Fish 1968). In three of the
lakes supporting 7-18 fish per acre, growth in weight was two to
three times that in two lakes supporting 31-35 fish per acre. The
inverse relationship between number of trout and their average
weight suggests that the lakes would produce large trout if the
population were kept small.
11. Rainbow trout in a New Zealand lake were subjected to a
sport fishery of increasing intensity for 14 years (Percival and
Burnet 1963). The growth of two- and three-year-old fish was
negatively correlated with population size. The data suggest that
an increase in exploitation increases the survival rate of
juveniles. The larger number of surviving juveniles resulted in a
reduction in growth rate and maximum size of the fish.
12. Catch and escapement of an exploited sockeye salmon
populations were studied in Bristol Bay, Alaska (Mathisen 1969).
Growth in length of smolts could be expressed as a negative
exponential function of population density. A similar
relationship exists for maturing salmon during their migration
toward fresh water. Thus, as exploitation increases, the growth
in individual fish increases.
13. Records of 111 animal populations representing 71 species
were analyzed to determine the relationship between the rate of
increase of a population and the population density (Tanner 1966).
Of the seven fish species examined, Atlantic salmon, yellow
perch, walleye, and northern pike showed a statistically
significant negative correlation of population growth rate with
population density; freshwater drum and goldeye showed a negative
correlation and lake trout a positive correlation, but these were
not statistically significant. The data strongly support the
concept of a compensatory increase in survival and/or fecundity
following reduction in the size of a population.
14. Populations of rainbow and brook trout were compared among
New York ponds (Eipper 1964). Growth rates of both trout species
were inversely related to population density.
15. The number of spawners was computed with the numbers of
progeny for haddock. Pacific herring, and coho, sockeye, and pink
salmon (Ricker 1954). The data suggest that the survival rate of
progeny increases as the number of spawners decreases. Within
limits, a reduction in spawners can also result in increased
numbers of surviving progeny.
16. Plaice, haddock, sole, turbot, and cod in the North Sea
were subjected to varying degrees of exploitation (Beverton and
Holt 1957). Survival, particularly of plaice, was strongly
inversely correlated with the size of the adult population.
17. The size of young sockeye salmon in a British Columbia
lake was compared with population density for 11 years ILLEGIBLE
1944). There was a statistically significant negative correlation
(r = 0.82) between the density of the lake population and the mean
weight of migrants.(())
annual removal can be sustained, at what level of added mortality will
the population be drastically reduced in numbers, at what level of added
mortality will it be threatened with extinction, and what would
constitute an intolerable or irreversible reduction of a fish
population. As a foundation for responding to these questions from a
basis of empirical evidence, the principles unfolded through the
arguments and historical accounts previously presented are summarized as
follows:
An undisturbed or exploited population (one at the maximum
equilibrium level on the average) produces enough new individuals
to just replace natural losses, there is no surplus production.
A population, if it is to be held at maximum size, cannot be
exposed to any additional mortality either from natural causes or
from man's activities because, at maximum stock size, no surplus
production is available to absorb an increment of mortality.
At the opposite extreme, as a population approaches 0 size,
surplus production approaches 0. In very small populations, the
rate of surplus production per individual is very high; however,
so few individuals are present that the overall rate of increase
for the population is very low.
Should exploitation or some other form of environmental impact
occur, population size will be reduced. At levels of density
lower than equilibrium, surplus production will be available to
absorb the environmental impact while maintaining the population
at the new but reduced level.
Maximum surplus production occurs at some intermediate level of
stock density.
If an added mortality is large enough, population size will be
reduced to a level at which the fish may become undesirably
scarce, and the population may be vulnerable to accidental or even
inevitable extinction and may be able to generate only a small
surplus production for the benefit of man or as a cushion against
further decline.
In ecological terms, the significance of an impact imposed by man on
a fish population is not a matter of "good" or "bad" but rather a matter
of one or more states of reality defined by the average level of
abundance of the impacted stock and the magnitude of its surplus
production. Increasing overall impact on the fish population decreases
standing stock, increases resource utilization, causes maximum surplus
production at an intermediate level of exploitation, and varies the
potential for disposition of the surplus production as, for example,
between fisheries and kills resulting from power generation. Because
the objective of fisheries management is to maximize some form of
productivity on a sustained basis (often the total weight of the fish
harvested), identification of the fishing rate that will produce the
greatest yield on a long-term basis has usually been emphasized. There
has been no particular value attached to building up the population to
maximum size.(()) Unlike esthetically valued species such as brightly
feathered birds, fish are rarely accessible to the admiring gaze of the
public and none has a reputation for song.
The emphasis on maximizing harvest has led to a wide range of
historical experience with initially unexploited fish populations that
have been subjected to harvest by sport and commercial fisheries and
have persisted in a healthy ecological state despite increased overall
mortality. This experience constitutes unassailable proof of the
general operation of the phenomenon of compensation in fish populations.
If the natural death rate had not declined of the birth rate increased
as population density was reduced, the large removals by fishing would
quickly have driven these populations to extinction.
In reviewing a substantial number of published estimates of
exploitation rates (Table 2), it becomes clear that cases in which -25%
of the exploitable age classes in a population have been removed
annually are common. The figures generally represent situations in
which substantial exploitation has been underway for fairly long periods
(usually for decades) and is continuing. Clearly, then, many
populations possess compensatory reserve sufficient to offset very
substantial increments of man-induced mortality. The repeated removal
of 25-50% of a fish population and the sustained reduction of abundance
of the fish to a level well below the pre-fishing stock size, with hopes
for survival of the stock dangling by the seemingly precarious
conceptual thread of compensation, may at first seem a drastic
proposition to the interested layman or the scientist lacking a
background in scientific management of fisheries. However, such
treatment, rather than being an extreme to which populations can at
great peril be pushed, is a normal and ecologically sound treatment that
permits fish stocks to operate at maximum productivity. Earlier
management models (e.g., the logistic model) predicted that maximum
sustained yield would be obtained at an average population level of 50%
of the virgin stock. Current more flexible and realistic models (e.g.,
that of Ricker) indicate that, for the stock recruitment relationship
characteristic of many important fish, maximum sustained yield would be
obtained under exploitation rates of 25-75% and that the average
equilibrium level of the populations at maximum sustained yield would be
less than half the virgin stock level (Ricker 1958, p. 239, 268). The
broad experience sampled in Table 2 confirms these management tenets,
and the tenets provide a basis for assessing the limits within which
fish populations can be managed safely by man. It is not suggested here
that harvest of fish by fishermen and power plants up to the level of
maximum sustained yield is socially desirable, but simply that is
ecologically safe.
Yield statistics from commercial and sport fisheries provide another
reflection of the capacity of fish stocks to sustain themselves in the
face of substantial man-induced mortalities. The relatively
unproductive Great Lakes of North America have produced yields from 1 to
7 lb per acre per year; a(())
GRAPHIC OMITTED
Table 2. Summary of published estimates of
exploitation rates in fish populations(())
GRAPHIC OMITTED
Table 2 (continued)(())
GRAPHIC OMITTED
Table 2 (continued)(())
productive North Sea fishery has yielded about 27 lb per acre, Escanaba
Lake in Wisconsin has yielded 4-41 lb per acre over a 24-year period
(the overall average being 20 lb per acre), the Gulf of Mexico's
fin-fish catch attributable to estuarine production has averaged about
50 lb per acre in recent years, and commercial fishing in Chesapeake Bay
has yielded about 155 lb per acre. Clearly, these substantial removals
would deplete fish populations rapidly were those populations unable to
compensate through increased survival or reproduction rates.
Experience with the world's major stocks has proven both that they
have the capacity to withstand impressively high levels of exploitation
and produce a substantial surplus at population levels well below their
pre-exploitation abundance, and that they have the ability to rebound to
higher levels of abundance after being heavily exploited if fishing
intensity is reduced. This is entirely in keeping with the concepts of
population dynamics, and there is important empirical proof of this
recovery capacity. Fishing reduced the plaice stock in the southern
North Sea to one-third or one-half its original abundance, but
relaxation of fishing during wartime rapidly doubled it size (Cushing
1975, p. 135). The Pacific halibut population decreased by a factor of
7 during a 20-year period of fishing, then increased in size when
protected by a closed season (Fukuda 1962). A North Sea herring stock
was reduced to one-tenth its previous abundance during a 12-year period
and subsequently began to increase as a result of reduced fishing
pressure (Cushing 1975, p. 136). Sturgeon fishing in the Armur River
basin was banned for 12 years to restore overfished stocks; by the end
of the ban, the proportion of sexually mature fish had increased sixfold
and the average size and age of fish had increased as well -- evidence
of restoration of the stock (Krykhtin 1972). Similar examples are
reported for the whitefish of Lake Wabamun (Miller 1949) and for lake
trout of Lake Opeongo (Fry 1949). Thus, reductions in fish stocks
caused by exploitation have commonly been proven to be reversible.
APPLICABILITY OF FISHERY EXPLOITATION PRINCIPLES TO POWER PLANT IMPACTS
Cushing (1975, p. 138-139) points out that "Many populations of wild
animals are exploited but the commercial fish stocks are numerous +++ No
other wild populations have been so well documented for such long
periods of time." This imposing body of accumulated experience with fish
populations has provided the basis for the development of successful
management principles in fishery science. However, are these principles
and the experience from which they are derived, based as they are on
fishery exploitation of the (usually) mature age groups of a stock,
applicable to the situation in which some fraction of the earliest life
stages (eggs, larvae, and juveniles) is cropped by entrainment and
impingement? Can the contention that "The agent of(()) mortality --
predatory fish, commercial or sport fisherman, or power plant -- is an
indifferent matter from the standpoint of population response" be
sustained? The questions are important ones. It answered
affirmatively, any empirical evidence for compensation in a particular
stock, in combination with one of the generally proven compensation
models based upon the entire foundation of fishery-management science
(e.g., Ricker or Beverton-Holt stock-recruitment function) can be used
to provide estimates of power plant impact. This taking into account of
compensation would greatly increase the degree of realism associated
with assessing the effects of power-plant-induced mortality on fish
populations.
It turns out that the question whether it is different (possibly
worse) to kill young fish than to kill older fish was answered more than
20 years ago by Ricker (1954, p. 607):
Exploitation that takes fish at an age when natural mortality
is still compensatory means, for practical purposes, a fishery for
young during the first year or two of their life -- the earlier
the better. The removal of such young is at least partly balanced
by increased survival and/or growth of the remainder; in fact,
the effects of removals at this stage are equivalent to reduction
of the spawning stock which produced the brood in question. If
the reproduction curve for the population is of any of the types
3-8, such reduction will at first increase net production of
recruits, which will produce more eggs and permit a larger catch
of young in future years. This ascending spiral of abundance may
continue until the level of stock is reached which produces
maximum recruits.
Ricker goes on to say "+++ it is clear that any general prejudice
against exploiting young fish is unsound." Ricker's analysis of the
situation has not been challenged. Insofar as population response is
concerned, no different principles are involved. Killing some fish
during the egg, larval, and juvenile stages (which is what power plants
do) is no worse than killing the parents that would have produced these
young (which is what fisheries do). The entire foundation of fishery
management experience and principles, therefore, can be applied with
confidence to problems of power plant impact. It can be reasoned that
fish populations can readily sustain "exploitation" by power plants at
levels comparable to those experienced in commercial and sport
fisheries. In a well-managed fishery, an annual exploitation rate of
50% or more for some species might well be a goal eagerly sought by
fishery managers and fishermen rather than a threat to be guarded
against. Even for species with rather low compensatory capacity, an
exploitation rate of approximately 30% and reduction of the stock to
about 46% of its pre-exploitation abundance would be necessary to
achieve the very conventional goal of maximum sustained yield (Ricker
1958, p. 268).
As has been pointed out, the workability of such management plans,
based on current fishery concepts and models, has been directly proven
by(()) empirical data such as that summarized in Table 2. A 50%
exploitation rate in a fishery, however, is not likely to be comparable
to a 50% exploitation rate caused by a power plant. Once a particular
year class of fish becomes vulnerable to a fishery, it is likely to be
exploited during each remaining year of its life, although the rate may
vary with age. For example, assuming recruitment to the fishery at age
4, a 50% exploitation rate could well mean that half the members of age
class 4 are captured, half of the survivors of age class 4 are captured
at age 5 and so on for older age classes.
Compared with this annually repeated fishery mortality, a 50%
exploitation rate caused by a power plant, which would affect each year
class only once during its lifetime (during the first year when the
young are entrained or impinged), would represent a very much smaller
mortality. What relative impacts, measured in terms of stock
reductions, the two mortalities would be translated into depends on the
characteristics of the fishery. Clearly, the power plant mortality,
falling as it does on the very young, precedes the age of first
reproduction. The fishery mortality, on the other hand, could begin
several years after the fish first reproduce, and some part of the
population's reproductive potential would then be protected from
reduction. However, most fish reach a size desirable in sport or
commercial fisheries by the age at which they make significant
reproductive contributions. Therefore, the common case will be for a
given exploitation rate caused by a fishery, and hence repeatedly
imposed in successive years on each year class of fish, to translate
into a greater impact than would the same exploitation rate caused by a
power plant, and hence imposed only once on each year class.
In most real-world situations, power plant impact would be added to a
pre-existing fishery exploitation rate rather than applied to an
unexploited stock. Even in this case, however, the addition of a
exploitation rate greater than 25% to a pre-existing fishery,
exploitation rate of 25% would not endanger the stock of many species.
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LeCren, E. D. 1958. Observations on the growth of perch (Perca
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Lindstrom, T., A. Fagerstrom, and K. J. Gustafson. 1970. Fishing
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Longhurst, A. R. 1964. Bionomics of the Scienidae of tropical West
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Maloney, J. E., D. H. Shupps, and W. S. Scidmore, 1962. Largemouth
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25(10):2165-2218.(())
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HRG COR OTH
770421 750310 750311 750312
CHARLES C. COUTANT
ENVIRONMENTAL SCIENCES DIVISION, OAK RIDGE NATIONAL LABORATORY
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IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, REPRESENTATIVE AND IMPORTANT SPECIES CONCEPT (PP 517 TO 525)
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CW261919 CW261927
05766
(())
May 16, 1977
Mr. Charles Krouse
Subcommittee on Investigations
and Review
Committee on Public Works and
Transportation
Rayburn House Office Building
Washington, DC
Dear Chuck:
In our biologist's panel at the recent hearing on Section 316 of PL
92-500 we were asked about Representative and Important Species (RIS).
Jan Prager answered, but others on the panel did not have time to
express our views. I would like to have the enclosed included in the
record to help clarify why and how the RIS concept has been used.
Unanticipated problem organisms may certainly arise (as exemplified by
Dr. Prager with the shipworm) but generally I feel that the RIS approach
is more cost-effective and timely for decision-making than are extensive
ecosystem studies.
Sincerely,
Charles C. Coutant, Manager
Power Plant Effects Program
Environmental Sciences Division(())
REPRESENTATIVE AND IMPORTANT SPECIES CONCEPT
Dr. Charles C. Coutant
Environmental Sciences Division
Oak Ridge National Laboratory
Oak Ridge, Tennessee 37830
For presentation and possible publication in the proceedings of a
symposium "The Integrity of Water" sponsored by the U.S. Environmental
Protection Agency Office of Water and Hazardous Materials, Washington,
D.C., 10-12 March 1975.(())
REPRESENTATIVE AND IMPORTANT SPECIES CONCEPT /1/
((/1/ Research supported by the Energy Research and Development
Administration under contract with Union Carbide Corporation. I
acknowledge fruitful discussions of this subject with many people over
the past five years, particularly Drs. J. A. Mihursky, W. Brungs and D.
Miller.))
Charles C. Coutant
Environmental Sciences Division
Oak Ridge National Laboratory
Oak Ridge, Tennessee 37830
This paper describes one approach to assessing impacts on the
integrity of water systems by either an existing or planned source of
ecological damage. The paper expouses no profound ecological theories -
rather, it expresses a realistic appraisal of what can be done today or
in the near future.
In essence, the approach is one of selecting certain important and
representative aquatic species to be the critical indicators for
decisions regarding the particular ecosystem and location being
evaluated. The opposite approach (although there should be
intergradations and mixtures of approaches in practice) would be to
consider only characteristics of the whole ecosystem, that is, the
aggregate of thousands of diverse species and kinds of organisms. The
Representative and Important Species (RIS) concept is different from the
old "indicator species" concept once used in organic pollution studies.
That concept sought to identify certain undesirable, possution tolerant
organisms (e.g. sludge worms) whose presence indicated pollution; the
RIS exphasis in on those species which we want to protect or enhance.
Assumptions and Criteria
What are my assumptions in suggesting the direction of using
representative and important species? What are my criteria for
selecting them?(())
(1) It doesn't seem possible to adequately study every species that
may exist at a site of pollution or other impact - there isn't enough
time, enough money, enough expertise, or (most important) I don't
believe the state of knowledge of aquatic ecology allows us to see all
the interactions among species that may be relevant to the particular
source of impact. Since all species cannot be adequately studied in the
time-frame for making resource decisions, some smaller number will have
to be chosen.
(2) The species of primary concern are those causally related to the
sources of impacts. To be sure, there may be repercussions throughout
an ecosystem if certain elements are destroyed, but generally the most
obvious change will be on the species directly affected. If we are to
correct mistakes, we must also be most concerned with causal
relationships.
(3) Some species of fish and invertebrates at a site will be
economically important in their own right, e.g. commercial and sports
fishes, regardless of any more academic connections to the ecosystem as
a whole. Some others may be nuisance species and thus important in the
negative sense. Both types of species are important in a societal
context - segments of the human society are particularly interested in
them.
(4) Some species are known to be critical for the structure and
function of their ecosystem, either through physical form (e.g., corals)
or through food chain relationships. These would be "important" in an
ecological sense.
(5) Some species which we can term "representative" will be either
particularly vulnerable to the source of potential damage (based upon
our(()) prior knowledge from laboratory or field studies), or they are
truly representative in their biological requirements of most other
local species. If these species are protected we feel that we can
reasonably assure protection of other species at the site. Generally,
we would not want to select wide-ranging species at the extremes of
their geographic ranges as "particularly vulnerable" or "sensitive"
representative species; they could, however still be "important", and
selected on that basis. Organisms at the edge of their range will often
be the most sensitive to environmental stresses, and could be useful as
sensitive indicators of ecosystem effects. However, they often are of
trivial importance to either the ecosystem or man in their marginal
environment.
(6) Often, the list of organisms that might be considered "important"
or "representative" is still too long to be practical and a smaller
list, perhaps greater than 5 but less than 15, may have to be chosen.
Generally we would want the reduced list to include a diversity of the
more sensitive fish, shellfish, or other species of direct use to man or
important for structure or functioning of the ecosystem.
(7) Finally, there is a category of organisms officially listed in
accordance with the federal Endangered Species Act of 1973 (PL 93-205)
which are automatically "important" by legal definition and which must
be carefully considered in any environmental impact evaluation.
Developing such a list presents an acute test of managerial skills
for the responsible agency. The key phases will be soliciting
recommendations from a wide variety of sources - fish and game agencies,
conservation(()) groups, regulatory bodies, the affected industry, and
others - and obtaining their understanding and acceptance of both the
selection process and the end result.
Use
How will a list of representative and important species be used? A
clear statement of the objectives for such a list should, of course,
have preceeded its selection. The list and its use will depend upon the
type of facility being evaluated.
It is useful to outline a decision train or action plan associated
with our species list. My own experience has been heavily oriented
towards power plant impacts, so the following thoughts are drawn from
that context. The decision train I outline includes steps leading up to
selection of the list of species, and it assumes that the source of
damage is not yet operating so that impacts must be predicted. If the
plant is already operating, then actual damages should be looked for,
and if found, then the decision may be to take actions to alleviate the
damages or, of no other recourse is available, to close the plant.
Decision Train
(1) Review the biological problems that have been identified at
operating power plants, in laboratory studies and speculative analyses.
A simple "shopping list" can be of great value in reminding the analyst
of what he should be watching out for.(())
(2) Examine the biological resources and any existing management
objectives for these resources at the site.
a) If these have already been established and catalogued by
resource agencies, or by previous ecological studies by the
company or other groups (e.g. universities), then these data might
be used without conducting additional field surveys.
b) If suitable data are not available, then a survey covering a
minimum of 1 year is probably necessary to establish the kind of
ecosystem being dealt with.
(3) Decide what problems viewed in #1 or identified from the local
resources are to be considered further for this site. In particular,
a) is the problem credible (documented, a problem elsewhere, a
good prediction)?
b) is the problem likely to be significant for the ecosystem or
society?
c) does the species that could cause the hypothetical problem
actually occur at your location, even during short periods of a
critical life stage?
d) is the species likely to be closely involved with the source
of damage?
(4) On the basis of anticipated problems, decide on a list of
representative and important species requiring detailed field and/or
laboratory study and analysis leading toward administrative decisions.
Use the assumptions discussed earlier or any other criteria that may be
particularly applicable to your site.(())
(5) Obtain literature and laboratory data on the representative and
important species. To the extent possible, the analyst should become
familiar with every aspect of the population dynamics of these selected
species. Where data permit, population dynamics models may aid in
determining which types of information are most important. Some
experimentatior may be necessary at this point to define such parameters
of direct biological effects as lethal temperatures for growth, optimum
growth temperature, etc. that can be useful in evaluating impacts.
(6) Obtain detailed field data at the site of probably impact (ant
reference areas) on the RIS that would pertain directly tb the
anticipated problem(s). The actual distributions of the organisms at
different times can be expecially important. This may require more than
1 year of data to establish yearly variations.
(7) Develop engineering designs for the proposed facility to minimize
problems. An example would be selection of the location for a water
intake either along shore or in deep water based on the relative
abundances of organisms that could be drawn in along with the water and
damaged or killed.
(8) Decide a) what problems remain credible after compensating with
good engineering and b) the magnitude of the problem in relation to
maintaining a balanced indigenous community. A projection must be made
at this point from the well documented analyses on representative and
important species to the likelihood of ecosystem effects. This we must
accept as educated speculation.(())
(9) From the list of predicted significant problems that remain, or
lack of them, decide upon issing approval for the facility. The
realistic ecological analyst must realize at this point, however, that
there will be other considerations entering decisions besides his won.
Conclusions
Decision regarding water resources must be made. We cannot wait for
all pertinent information to come in, for in practice it never does.
Knowledge continuously builds - sometimes to reveal our triumps of
insight, sometimes to reveal our mistakes. I feel that we can minimize
the latter within the practical limitations of today's environmental
sciences if we concentrate our efforts on those species that we feel are
either particularly important or are representative indicators of the
rest. Whether the ecosystems be designated as wild or managed (and most
water bodies are actually managed for certain harvestable species),
knowledgeable scientists and managers ought to be able to compile a list
of key species based upon management objectives. These species can then
receive more than haphazard attention. The detailed information
developed on them will provide clearer decision criteria for the
administrator and clearer standards for later judging any changes in the
integrity of our waters.
HRG COR OTH
770421 999999
DUKE POWER COMPANY
--
SUBCOMMITTEE ON INVESTIGATIONS AND REVIEW HOUSE COMMITTEE ON PUBLIC
WORKS AND TRANSPORTATION
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, STATEMENT AND COVER LETTER (PP 526 TO 529)
--
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95-217
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CW261928 CW261931
05767
(())
April 18, 1977
The Honorable Ronald Bo Ginn
Chairman, Subcommittee on Investigations and Review
Committee on Public Works & Transportation
U S House of Representatives
Washington, D C 20515
Dear Congressman Ginn:
We understand that your Subcommittee is investigating the impact of
EPA regulatory actions regarding cooling water for power plants, and
that hearings will be held shortly. At Duke Power, we have had
experience with cooling towers and with manmade cooling lakes, and find
that the EPA posture that forces us to cooling towers for new plants
sometimes can be contrary to both our environment and economics to the
the consumer.
Attached is a statement reflecting our experience which we
respectfully request be included as a part of the hearing record. We
stand ready to serve your Subcommittee or its staff in any way that we
can.
Very Sincerely,
W S Lee(())
STATEMENT - HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION
The Duke Power Company service area is an inland system located
entirely within the Piedmont area of North and South Carolina with no
direct access to coastal waters. The Piedmont area is characterized by
small streams which are not capable of supporting a base load thermal
station using once-through river flow. Because of these factors,
recycling of water is necessary and can be accomplished by employing
wither a cooling lake or cooling towers.
Duke Power's preference in using cooling lakes over cooling towers
has been demonstrated as an acceptable alternative from both an
environmental and economic standpoint. Environmental objections to
cooling towers include aesthetic considerations, atmospheric effects,
concentrated chemicals in the blowdown, and consumptive water use.
Aesthetically there are visual and land impacts such as cooling plumes
and any mechanical fan noise. The atmospheric effects of cooling tower
operation include drift and long-range environmental modifications such
as increased precipitation, fogging, and icing. Operating cooling
towers concentrate those chemicals added for control of corrosion,
scale, biological growth, retardants, as well as any chemicals present
in the make-up water supply. Consumptive water use on an annual average
basis is approximately 25 percent higher for cooling towers over cooling
lakes. The environmental objections to cooling lakes are large land
requirements and thermal impact on the water body. The area required
for cooling towers is removed from public access and lost for multiple
use of the resource. For a cooling, lake, the environment is changed
from terrestrial to aquatic, but in most cases remains open to public
access and multiple use such as recreation, flood control, low flow
augmentation, municipal water supply, and hydroelectric generation. It
has been demonstrated that though thermal stimulation of the(())
blue-green algae has occurred in some cooling lakes, Duke has had no
difficulty with algae blooms. Additional substantiation that cooling
lakes are environmentally acceptable alternatives are the discharge
permits and successful 316(a) demonstrations that Duke has on its
cooling lakes. These 316(a) demonstrations have been made on three Duke
plants and verify that the thermal discharges have not and do not pose a
danger to indigenous aquatic populations.
Economically Duke has found that for new sites capital costs of
either alternative, cooling lakes or cooling towers are approximately
the same. However, cooling towers will have an annual generating cost
over that for a cooling lake that can be expected to exceed $10 million
for a 2300 megawatt nuclear station. The extra energy required to
operate the cooling towers at this plant (approximately 60 mw) would be
enough to supply the electrical needs of about 30,000 homes. In view of
the need for energy conservation, regulations should be revised to
permit consideration of the most energy-efficient choice - cooling
lakes. Duke Power's most recent power plant siting decisions involving
two sites and about 7800 mw of generating capacity, resulted in using
cooling towers. Early in the site studies for these plants, Duke became
concerned over the changing EPA regulations that would prohibit the use
of cooling lakes for new plants. Numerous discussions with EPA in
Atlanta and Washington resulted in our being advised by EPA that "it is
now our view that if you select lake sites, off stream cooling probably
by cooling towers would also have to be provided. We can give no
assurances as to whether or when lake cooling can be approved for these
projects without off stream cooling facilities." (July 1973) A recent
experience (1973) of having to backfit coolign towers at our then
proposed Catawba Station influenced our site selection process for
plants following Catawba. Several sites that would have been unsuitable
for lake(()) cooling but suitable as cooling tower sites were evaluated.
The restraint of using cooling towers was imposed to insure that the
station could be brought into service in time to meet future power
requirements and satisfy regulatory requirements. The use of sites
suitable only for cooling towers has the advantage of reserving sites
which have potential for lake cooling for use in siting future plants.
There are power plant sites where a cooling tower represents a better
choice than cooling lakes. Duke has operating plants with cooling
towers at two such sites. Where there is no site for a cooling lake, or
insufficient water flow to cool on a once-through basis, a cooling tower
may be the nost environmental and economical choice.
Duke Power has demonstrated by acquiring permits, 316(a)
demonstrations, environmental and economic analyses that cooling lakes
are an acceptable alternative to cooling towers. Cooling lakes normally
have certain advantages such as reduced water consumption, recreation,
reduction of auxiliary power requirements, water supply, flood control,
fishing, etc, when compared with cooling towers. We believe that
cooling lakes and cooling towers should both be acceptable as a cooling
medium and the choice be based on a fair and equitable cost-benefit
analysis. In this day of energy shortages, it is essential that cooling
lakes be accepted as a viable alternative.
HRG OTH
770421 999999
A. JOSEPH DOWD
SENIOR VICE PRESIDENT AND GENERAL COUNSEL, AMERICAN ELECTRIC POWER
SERVICE CORPORATION
SUBCOMMITTEE ON ENERGY PRODUCTION AND SUPPLY SENATE COMMITTEE ON ENERGY
AND NATURAL RESOURCES
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, STATEMENT OF A. JOSEPH DOWD (PP 530 TO 547)
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CW261932 CW261949
05768
(())
EDISON ELECTRIC INSTITUTE
Attachment B
STATEMENT OF A. JOSEPH DOWD
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
AMERICAN ELECTRIC POWER SERVICE CORPORATION
BEFORE THE
SUBCOMMITTEE ON ENERGY PRODUCTION AND SUPPLY
of the
UNITED STATES SENATE
COMMITTEE ON ENERGY AND NATURAL RESOURCES
ON S. 273 and S.977
March 29, 1977
I am A. Joseph Dowd, Seniro Vice President and General Counsel of
American Electric Power Service Corporation. I am appearing as a
spokesman for the Edison Electric Institut'e (EEI), the principal
national association of America s investor-owned electric utility
companies, whose members provide approximately 79% of the total electric
generating capacity in the United States. Testifying with me today are
Don D. Jordan, President of Houston Lighting & Power Company, and
William L. Proffitt, Senior Vice President of Virginia Electric and
Power Company. My statement will provide an overview of S. 273 and S.
977 from an electric utility industry perspective. Mr. Jordan will
address the specific problems associated with natural gas conversion,
while Mr. Proffitt will discuss the specific problems associated with
converting from oil to coal. Their statements and the written comments
of other individual utilities will describe their individual system and
regional problems. I am also accompanied by Geroge C. Freeman, Jr., of
the law firm of Hunton & Williams, special counsel to the Electric
Utility Industry Clean Air Coordinating Committee (Coordinating
Committee), an ad hoc group of electric utility systems and their
associations, including EEI, encompassing the investor, cooperatively,
and publicly owned segments of the electric utility industry.
INTRODUCTION
We believe that every practical effort should be made to reduce oil
imports. We also agree that greater use of domestic coal and nuclear
resources is one way to effect this goal. As far as the electric
utility industry is concerned, the focal point of efforts to reduce oil
and gas consumption for the generation of electricity has been, and
should continue to be, the construction of new base-load electric
generating plants, utilizing coal or nuclear fuel, for the immediate
future. Happily, most such plants being built in the United States
today are coal and nuclear-fired. This has resulted from three factors:
(1) the lower costs of nuclear or coal-fired generation as compared
with oil-fired generation (the economic advantages of coal versus
nuclear have varied from region to region); (2) growing natural gas
shortages and governmental restrictions on its use; and (3) the
vulnerability of oil imports. Reliability considerations have tipped
the balance in favor of coal and nuclear in the few situations where oil
was economically competitive with them.
But, as much as the electric utility industry may want to avoid new
oil-fired units and as much as Congress may wish to encourage or compel
it to convert to coal, you must recognize that there are many other
federal governmental policies that directly affect how much and what
kind of new generating capacity can be built by this industry. At
present, these federal policies are often confused and conflicting --
but their composite effect will inevitably determine whether, where,
what kind of, what size, and at what cost to the American consumer new
plants can be built. In the past, the net effects of these multiple
federal policies have generally been unforeseen by
single-mission-oriented policy makers in Congress or the various federal
departments or agencies. This is not because these(()) policy makers do
not want to see the big picture and make these trade-offs consciously,
but rather because they have been institutionally handicapped by the
single subject orientation of congressional committees and federal
agencies. So, the final outcome is the unplanned consequence of
haphazardly conflicting policies.
While some efforts have been made in recent years through the formal
National Environmental Policy Act (NEPA) statement process and the more
informal "quality of life" interagency review process under the auspices
of the Office of Management and Budget to identify and to resolve
consciously these federal policy conflicts, those processes have been
confined essentially to implementing legislation already on the books.
Certainly, there is no equivalent of those processes in Congress for
identifying and resolving major federal policy conflicts before
legislation is enacted. Because of the way Congress is organized into
and acts through committees, it has generally been unable to identify
systematically potential conflicts among major federal policies and to
resolve them before new laws are passed or new programs launched. In
our system of government the Presidency is the institution that should
provide that overview.
Unfortunately, to date we have not had a Presidential assessment of
the impacts of the mix of conflicting programs now constituting our
piecemeal national energy policy along with any attempt to reconcile
them. Until this is done, we will not have a national energy policy nor
a national environmental policy that will accomplish together what is in
the best interests of the American people as a whole. For too long, we
have permitted fixation with a particular aspect of the public interest
-- such as industrial development in the first part of the century and
clean air and water in the last decade -- to be given unwarranted
priority over all other(()) equal, or more important, social needs. We
have tried to correct that kind of fixation by the preparation of NEPA
statements and economic impact assessments, but unfortunately we have
not applied those analytical processes to all federal agencie or to the
legislative process.
Turning specifically to oil imports, coal utilization, and the
nation's electric utility industry, there are a number of existing
policies which limit the options other wise available to us. These
include tariffs, taxes, import fees, and regulation of multiple aspects
of the energy industry as a whole. Among the latter are restrictions on
surface mining and of the Federal Water Pollution Control Act, the Solid
Waste Disposal Act, the Coastal Zone Management Act, and the Clean Air
Act. We will address some of the restrictions under the Clean Air Act
directly relevant to the legislation before you today, but let us first
take a look at the bills now pending before this Committee.(())
S. 273 and S. 977
S. 273 focuses on new plants, while relying on the Energy Supply and
Environmental Coordination Act of 1974 (ESECA) for the conversion of the
special class of esisting plants subject to its restricted limitations.
S. 977 covers much of the same ground but it would also apply to yet
another class of existing plants. Neither alone nor both in combination
does the job in their present form. First, the electric industry does
not plan any substantial addition of base-load oil-fired or gas-fired
generation. Second, many of the existing plants which are conversion
candidates are either in particulate or oxidant non-attainment areas or
are otherwise delayed in conversion because of the ESECA-Clean Air Act
limitations. S. 273 and S. 977 presently ignore those Clean Air Act
restrictions that would make these two bills largely futile gestures.
As to S. 273 and S. 977, what is needed is to recast them and ESECA
generally to specify a single set of rules to all existing oil-fired
plants, another to existing gas-fired plants, and a single, but
different, set of rules to all new plants. These rules should apply to
all base-load electric generating plants regardless of who owns them.
In such a revision, the following principles should be written into the
resulting bill and other related federal policies:
1. The legislation should facilitate and encourage voluntary
conversion of existing base-load generating plants to coal where
feasible and the construction of new coal-fired base load
generating plants. In this regard, incentive programs for greater
coal utilization would be important additions to administrative
orders. Such programs and the other non-governmental incentives
would lead to decision making(()) more nearly based on market
conditions and they would also limit the distortion in the supply
and demand relationships for coal, conversion equipment, and
pollution control equipment which governmental decrees create.
2. If conversions are to be ordered by a federal authority,
the statutory criteria for conversion should be as specific as
possible and not be left to vague subjective statutory
interpretation. S. 273 and S. 977 in their present form are steps
in that direction so that perfecting them should not be difficult.
Examples of clear and specific ground rules include:
(a) The remaining useful life of the conversion candidate
should be sufficient (at least 15 years) to amortize the costs of
conversion.
(b) The conversion candidate should have a projected usage of
3,000 hours or more a year in the 1980's. Old Plants used to meet
peak load cannot absorb the cost of conversion.
(c) New peaking units, such as gas turbines and combined cycle
units, must use oil or gas and should not receive conversion
orders.
(d) Provisions for the use of oil for boiler startup, testing,
flame stabilization, and control (see section 203(i)(1) of ".S
977) should be retained. In addition, the practice of topping"
(using small amounts of oil to increase power generation at some
coal-fired units) should be permitted because of the limited
amounts of oil involved and the very low costs for the added
output and because some units would not be able to achieve their
rated capacity without "topping."
(e) The conversion candidate must have a site that will
accommodate a coal pile; rail, barge, or conveyor deliveries;
and waste disposal.(())
(f) Shutdown for conversion must be able to be scheduled so
that it will not create a capacity shortage.
(g) Since a conversion candidate may not have the physical or
economic capability to meet all clean air requirements, it should
be required only to meet emission limitations that represent a
reasonable contribution toward attainment of primary ambient air
quality standards and it should be "grandfathered" against future
state implementation plan (SIP) revisions. This plant-by-plant
specification of an emission limitation is the logical extension
of EPA's present policy of permitting states to subdivide air
quality control regions (AQCR's) for their DIP's. In many
instances, this contribution can be made by using naturally
low-sulfur coals or coals that have been cleaned through washing
or the solvents process. "Grandfathering" would permit the
utility to make the long-term contracts that may be necessary for
obtaining such coals. In addition, restrictions on tall stacks
should not be imposed and the use of intermittent controls should
be considered. This recommendation should apply to plants that
have converted, are now in the process of converting, or will
convert to coal.
(h) The costs for electric utilities to convert to coal will
vary regionally, while the benefits of conversion are essentially
national. The East and West Coasts, where utilities currently
have a substantial portion of their systems burning oil, and the
South-Central region, which(()) is still heavily dependent on
natural gas, would be the principal targets for coal conversion.
The economics ofconversion will turn on numberous factos such as
the remaining age of the unit, the capital costs of conversion,
and projected differences in the delivered costs of oil and coal.
Conversions of units which cannot be justified on the basis of net
economic impact on the utility's customers should not be ordered
unless some provision is made to spread the extra costs of
conversion to taxpayers generally. Loans or guarantees might help
some systems, but they will not solve the problem since, among
other things, they will not reduce the rate base nor the impact on
the rate payer. Federal grants or tax relief may also help to
spread the load more equitably but again they are not the complete
answer. Absent compensation or a government subsidy in some form,
uneconomic conversions should not be ordered. This means that
conversion should not be ordered if the capital costs of
conversion exceed 50% of the depreciated cost of the plant.
(i) The economics and technological impossibility of converting
existing natural gas plants to coal entirely preclude justifying
such units as conversion candidates. As a general rule,
conversion of plants originally designed to burn only oil to coal
is usually not technically feasible because of furnace volume,
combustion characteristics, spacing, and many other factors.
3. Certain general provisions should be applicable to both
existing and new plants. For example:
(a) A coal supply for the particular plant should be(())
available. This includes a dependable supply of coal for the
plant, adequate transportation from the mine to the plant,
adequate off-loading facilities, space for handling waste
products, and an ability to accomodate such plant equipment as
modified burners or scrubbers.
(b) Emergency provisions hsould permit suspension of clean air
requirements that are more stringent than those necessary to meet
federal ambient standards during a power shortage and suspension
or cancellation of conversion orders if coal or scrubber shortages
develop.
(c) In order to help solve our natural gas problems, we must
recognize that some increase in the use of oil in regions now
heavily dependent on natural gas will be necessary. Accordingly,
there should be an exemption mechanism for these special
geographic situations.
We will subsequently offer detailed drafting suggestions to you and
your staff.(())
CLEAN AIR RESTRAINTS /1/
((/1/ Exhibit 1 contains a complete analysis of the stationary source
provisions of S. 252, S. 253, and H.R. 4151.))
S. 273 and S. 977 are only half of the picture. There is absolutely
no trade-off in these bills between energy and the environment, the
other half of the picture. They repeatedly refer to "applicable
environmental requirements," while Congress is considering amendments to
the Clean Air Act which, if passed, will drastically alter the
"applicable environmental requirements" to make them far more stringent
on coal-fired generation. These two sets of bills, dealing with coal
conversion and the Clean Air Act, look in different directions. But,
taken together, they will actually diminish, rather then increase, the
utilization of our national coal resources. Let us now turn to the hard
realities of the Clean Air Act that Congress, the Administration, and
the states must address if we want to make greater coal utilization, as
envisioned in S. 273 and S. 977, practical.
No Significant Deterioration
The "no significant deterioration" (NSD) provisions of all three
Clean Air Act bills (S. 252, S. 253, and H.R. 4151) /2/(()) presently
pending before Congress will have major impacts on the type (oil, coal,
or nuclear), size, location, and cost of new base-load electric
generating plants. The analysis by Environmental Research & Technology
(ERT) of restrictions on sulfur dioxide emissions resulting from these
bills' NSD provisions (see Exhibit 7 for ERT's report and Exhibit 8 for
its summary) describes the physical limitations of the requirements on
the siting of fossil-fired power plants. The National Economic Research
Associates (NERA) have used the ERT analysis to determine the costs of
these limitations on the electric utility industry and the American
consumer. (see Exhibit 9 for NERA's report and Exhibit 10 for its
summary.) These detailed analyses show that enactment of these proposed
NSD provisions in their present form would discourage, and in some
instances prohibit, construction of new, economically sized, base-load
coal-fired plants, even with scrubbers, in areas of hilly terrain (e.g.,
base-load mine-mouth plants in Appalachian and Western mountainous
states). This would tend to restrict the location of future base-load
coal-fired plants to the flat terrain areas of the eastern coastal
plains and the Mississippi River valley. Generally, this would require
substantially longer transportation hauls from mine to plant, thus
increasing oil consumption by the rail or barge carriers. These
increases in transportation costs would decrease, or could eliminate,
the present advantage of new base-load coal-fired generation over new
base-load oil-fired generation.
((/2/ The country is divided into AQCR s for implementation of the
Clean Air Act. A monitoring network measures air quality in these
AOCR's so that determinations as to the attainment and maintenance of
the federal ambient air quality standards can be made. Those areas that
have air quality better than these standards are NSD areas and subject
to one set of requirements. Those AQCR's not in compliance with these
standards are non-attainment areas and are subject to other
requirements. Exhibits 2 through 6 are maps of the United States
showing the status of compliance, by AQCR, with the ambient air quality
standards in 1974 (the year of the latest published data) for five of
the six "criteria" pollutants. The areas colored blue are in compliance
with primary and secondary ambient standards, while the red areas are in
violation (more than one exceedance of the standard for the less than
annual periods defines a violation) of either a primary or secondary
standard. The data for the yellow areas are insufficient to support a
judgment as to attainment.))
At the same time, construction of smaller plants at a single site
would require development of more sites, with greater duplication of
coal or oil-handling facilities(()) and equipment. This would severely
limit attainment of economies of scale and energy efficienceis. Since
coal storage and handling facilities are usually more expensive than oil
storage and handling facilities, this would also tend to favor oil over
coal.
In addition, these NSD provisions would improve the economies of
nuclear power with respect to coal or oil for all new base-load electric
generating units through most, if not all, of the United States. If the
nuclear option remains available -- and that is imperative -- this would
tend to reduce the number of new coal or oil-fired plants and thus tend
to reduce demand for coal and oil by the utility industry. The higher
costs of new base-load plants (costs imposed directly on fossil-fired
units for eompliance with these NSD constratints and indirectly through
and greater demend for nuclear) would encourage extension of the service
life of older, less efficient fossil-fired plants. This would tend to
increase coal and oil consumption and to increase net pollution shifitng
much of it from remote rural areas to heavily populated,
"non-attainment" regions (areas where federal ambient air quality
standards are being exceeded).
The S. 252 and S. 253 best available control technology (BACT)
requirements and H.R. 4151's required revision of new source performance
standards (NSPS) could require scrubbers (flue gas desulfurization
equipment) on nearly all new base-load fossil-fueled plants. This could
preclude conversions, whether voluntary or federally mandated, of any
existing generating plants because of the impacts on scrubber demand and
supply. Nationwide scrubber shortages (up to five years or so) could
imperil utility industry(()) compliance with present Clean Air Act
requirements by both existing and new plants. In addition, coal
conversion requirements and the energy demands of pollution abatement
equipment may lead to coal supply shortfalls. The relationships of
alternative Clean Air Act and coal conversion policies to scrubber and
coal supply were explained in detail in hearings in the last Congress on
S. 1777. /3/ But the Committee has not invited the scrubber
manufacturers to testify on currently pending bills. We respectfully
urge you to do so, lest you order our industry to do what may be
impossible in the time frames you contemplate. When the scrubber
manufacturers testified in 1975 on S. 1777, they readily acknowledged
the limited production capacity of that industry to meet electric
utility demands, while not focusing on costs or scrubber reliability.
Using those manufacturers' most optimistic estimates of scrubber
production, our consultant, NERA, predicted shortages of scrubbers under
various coal conversion and clean air policy alternatives. NERA advises
us that its estimate of coal supply shortfalls appear approximately the
same today as in its analysis in the S. 1777 hearing record. We request
that any Federal Energy Administration (FEA), Bureau of Mines, Federal
Power Commission, or coal industry estimates of coal production for the
next decade that may be made
available to you also be made available to us for review by our(())
consultants. Our past experience has shown such estimates to be over
optimistic since they usually did not consider the constraints imposed
on the location of mines, the available transportation, and the location
of new power plants. In short, you and we need to know how many
scrubbers and how much coal may be available and the ability of those
two industries to respond to sharply increased demand, before we can
assess and advise you of our ability to comply with clean air and coal
conversion policies.
((/3/ Joint Hearings on S. 1777 Before the Senate Committees on
Interior and Insular Affairs and Public Works, 94th Congress, 1st
Session, Serial No. 94-18 (92-108) Parts 1-3 (1975).))
It should be noted that, if Congress requires scrubbers at all new
coal-fired plants, utility system fuel consumption would increase since
scrubbers impose an "energy penalty" ranging from three to seven
percent. When coupled with installation of cooling towers (with an
average three percent energy penalty), the gross penalty per new
coal-fired pland would range from six to ten percent. This would
increase utility consumption of both coal and oil and require
construction of additional capacity to meet peak load.
Non-Attainment
The pending Clean Air Act amendments do not resolve the current major
oxidants non-attainment barrier to new coal-fired or oil-fired power
plant construction. Unless that problem is resolved, the main purpose
of both S. 273 and S. 977 to encourage utilities to build new coal-fired
base-load generating plants will be thwarted. Because of the location
of coal reserves and transportation facilities, EPA's recent selection
of AQCR's which must revise their oxidant-related SIP provisions by July
1, 1978, tends to discourage or prohibit construction of new coal-fired
electric generating plants north of North Carolina and east(()) of the
Mississippi River. The present sporadic pattern of monitoring for
oxidants also tends to favor construction of new oil-fired generating
plants on the east coast, in the short run. The details of this problem
are spelled out in Exhibit 11 to this testimony. In particular, we
invite your attention to its maps which dramatically portray the
nationwide dimensions of this problem. Even if lack of monitoring data
or lenient enforcement offers some temporary relief, virtually all new
fossil-fired plants are subject to citizens suits.
Another, although perhaps less pressing, non-attainment problem
relates to particulates. This can be handled adminstratively by
specifying size-discriminating monitoring methodology so that the larger
sized-particulates, from natural background, can be "discounted" for
determining attainment of standards. While this procedure is to be
given the "blessing" of the Environment and Public Works Committee in
its report to accompany S. 252, neither S. 252, S. 253, nor H.R. 4151
require EPA and the states to adopt and to implement such procedures.
If background particulate concentrations are not discounted, a major
impediment to coal conversion exists, because particulate standards will
be exceeded in virtually all regions of the nation.
Other Fuel Effects of the Clean Air Act Amendments.
Backfit of existing fossil-fired electric generation plants to meet
the proposed new compliance deadlines for recently set or recently
revised SIP's (e.g., Ohio, Indiana, and Illinois) and to avoid the
proposed new compliance penalty or fine provisions proposed in S. 252,
S. 253, and H.R. 4151 could present reliability problems for some
utility systems, particularly in the Midwest. To(()) the extent these
reliability problems could be eased by reliance on interconnections to
east coast utilities, oil consumption by the latter would increase
substantially.
S. 252 and S. 253 would preclude SIP revisions, liberalizing
requirements for complying fuels. This would undercut recent or future
ESECA-inspired SIP revisions or temporary emergency revisions similar to
those adopted in some states this past January. This would tend to
decrease consumption of available middle or high-sulfur coals and
increase low-sulfur oil consumption.
Increased electric rates resulting from enactment of any of these
bills in their present forms, coupled with continuing national natural
gas shortages, will tend to favor greater oil consumption for space
heating and industrial production.(())
CONCLUSION
This brief analysis has shown that the presently pending Clean Air
Act amendments, if enacted, would severely curtail options available to
encourage or compel a reduction in oil imports by greater coal
utilization. Yet, to date, no spokesman for the Administration has
appeared before either the Senate Committee on the Environment and
Public Works or the House Committee on Interstate and Foreign Commerce
to voice its views on this proposed legislation and its relationship to
national energy policy options. FEA Administrator O'Leary touched on
this briefly when he testified before you on March 21, 1977, on S. 273
and S. 977, but he offered no thoughts of his own or of the
Administration on how to reconcile these pending Clean Air Act
amendments with the bills before you. Meanwhile, both Committees
dealing with the Clean Air Act amendments have concluded their hearings.
They are now in the midst of mark-up sessions. They seem to be on a
schedule to report out their amendments before the President makes his
recommendations to you and the nation next month on our tough new
national energy policy or before you act on S. 273, S. 977, or other
energy legislation.
It will be tragic if the Administration and this Committee sit by and
permit vital energy options to be silently foreclosed by enactment of
the presently proposed Clean Air Act amendments. Only if you and the
Committees with jurisdiction over the Clean Air Act amendments work
together with the President to reconcile the important environmental and
energy policies, can we obtain the kind of balanced overview of how to
interface Clean Air Act amendments and oil and natural gas curtailment
legislation (like S. 273 and S. 977) in order to create a meaningful(())
national energy policy that is consistent with national environmental
policy objectives. As a starting point, you might wish Mr. Schlesinger
and Mr. Costle to appear together and give you their views on the
interrelation of this proposed legislation. More important, you might
ask the President to provide you with his thoughts immediately so that
Congress and the nation can put both of these topics on the table side
by side and confront the hard choices both present if he does not now
intend to do so in his April message.
The electric utility industry is willing to do its fair share to
reduce oil imports and natural gas consumption and to maintain a clean
environment. But we need realistic governmental policy directives to
follow -- not those that duck the hard trade-offs that are inevitable.
To be credible, our new energy policy and our existing environmental
policy must face up to these realities. We know that we and American
consumers will be asked to make sacrifices -- that the new policies will
be "tough." But it is not enough that they be tough, they must also be
realistic and they must also be fair.
HRG GRA OTH
770421 770311
JAMES R. MAHONEY
VICE PRESIDENT, ENVIRONMENTAL RESEARCH & TECHNOLOGY, INC.
SUBCOMMITTEE ON HEALTH & ENVIRONMENT U.S. HOUSE OF REPRESENTATIVES
COMMITTEE ON INTERSTATE & FOREIGN COMMERCE
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, STATEMENT OF JAMES R. MAHONEY (PP 548 TO 558)
--
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95-217
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CW261950 CW261960
05769
(())
Attachment C
Edison Electric Institute
STATEMENT OF JAMES R. MAHONEY, Ph.D.
VICE PRESIDENT, ENVIRONMENTAL RESEARCH & TECHNOLOGY,
INC. (ERT)
Before the
SUBCOMMITTEE ON HEALTH & THE ENVIRONMENT
of the
U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON INTERSTATE
& FOREIGN COMMERCE
Friday, 11 March 1977
My name is James R. Mahoney. I am Vice President of Environmental
Research & Technology, Inc. (ERT), a firm which specializes in
environmental planning and measurement programs for a large number of
industrial and governmental clients.
During the past two years, ERT has performed several technical
analyses of various suggested provisions for the prevention of
significant deterioration in proposed Amendments to the Clean Air Act
for the Electric Utility Industry Clean Air Coordinating Committee.
Recently, we were asked to analyze the significant deterioration
portions of House Bill H.R. 4151, and Senate Bill S. 252 (Conference
Bill), and to re-examine an earlier assessment of the Senate Bill S.
252, in order to determine the potential impacts of these provisions on
the future development of electric generating facilities in the United
States.
My presentation today is divided into three parts. First, I want to
cite some specific numerical limits on electric generating facility
size, relative to the proposed provision of H.R. 4151. Secondly, I want
to compare the House, Senate and Conference Bills with the current EPA
regulations in terms of their impacts on electric generating facility
siting. Finally, I want to mention some of the broader environmental
and energy policy implications of the proposed significant deterioration
provisions.
Specific Limits on Facility Size Resulting from H.R. 4151
We analyzed 74 coal fired plant sites expected to be developed
between now and 1983. These were the same plant sites used in the 1975
EPA/FEA study of earlier versions of the significant deterioration.(())
proposals. We used the air quality models and input data in the same
manner as used by EPA and FEA in thier first published analysis, and in
continuing analyses. The principal conclusions of our analysis are:
. For the increment limits specified in H.R. 4151, the maximum
capacity power plant which could be built, even at an "ideal" site
(i.e., a site with flat terrain, favorable meterological
conditions, and no Class I area within 100 kilometers, or 60
miles) would be less than 1.700 Mw if the SO2 emission limits for
the plant were maintained at the present EPA New Source
Performance Standard (NSPS) limits. This finding applies in the
case of a plant with a 500 foot stack.
. The following findings apply to analysis of a 3,000 Mw
facility considered under the provisions of H.R. 4151. This
capacity was considered for all 74 sites in the study because
singe planned unit additions may not be permitted to use the full
increment at individual sites. The balance of the increment could
go to future units at the site (3000 Mw is a typical long term
capacity development goal for major power plant sites) or to other
industries locating adjacent to or near the subject plants. In
addition, future generating capacity in multi-unit power plants at
a single location often pose less environmental impact than would
result from the development of numerous single unit sites. The
results cited here correspond to a stack height of 2-1/2 times the
height of the source for each planned facility.
. A 3,000 Mw facility could be built at none of the 74 sites,
with the emission limit determined by the present EPA NSPS limits.
. If the emission limit were set at 50 percent of the EPA NSPS
limit, only 9 of the 74 sites could accommodate 3,000 Mw total
capacity; the remaining 65 sites could not. (The 50 percent NSPS
limit is typical of a plant burning high sulfur Eastern coal with
a 90 percent removal efficiency scrubber.)(())
. If the emission limit were set at 10 percent of the EPA NSPS
limit, 54 of the 74 sites could accommodate 3,000 Mw total
capacity; the remaining 20 sites could not. (The 10 percent NSPS
limit is typical of a plant burning low sulfur Western coal with a
90 percent removal efficiency scrubber.) Eleven of the sites which
could not accommodate 3,000 Mw at the 10 percent NSPS limit are in
the mountanous Western states, where plume impact on elevated
terrain causes exceedances of the increment limit. (The total
number of Wastern sites in the survey is 14.)
. The following findings apply to the specifically planned
capacity additions for each of the 74 facilities. (The capacity
additions range in size from 80 Mw to 3,000 Mw; at 28 of the
sites, the specifically planned additions exceed 1,000 Mw.) In
each case, stack height equivalent to 2-1/2 times source height
has been used in evaluating these facilites. Note that the
analysis is based on the assumption that each planned addition
would be permitted to use up the entire 100 percent of the
increment in its region. Any deviation from this approach in
regulatory practice would create greater restrictions.
. 42 of the 74 specifically planned capacity additions could
be operated with emissions set equal to the present EPA NSPS
limits, if the facilities are permitted to "use up" the
increments.
. 57 of the 74 planned additions could be operated with
emissions limited to 50 percent of the EPA NSPS; 17 of the
additions could not be so operated.
. 64 of the 74 planned additions could be operated at 10
percent of the EPA NSPS limits.
. 42 of the 74 plant sites are influenced by proximity to
mandatory Class I areas as defined in the House Bill (those areas
designated initially as Class I). Since the EPA model for long
distance transport analysis has been challenged, it is important
to note that any more conservative modeling of(()) Class I impacts
would require more stringent emission limitations for these
plants. All of the 14 Western plant sites in the study are
influenced by proximity to a mandatory Class I area.
. If "discretionary" Class I areas are designated (those in
House Bill which are specifically prohibited from being designated
as Class III areas) in addition to the mandatory Class I areas, 63
of the 74 sites are influenced by Class I limits. Again, all 14
of the Western sites are influenced by applications of Class I
increments.
. An analysis of a five-year meterological data record,
instead of the single year record adopted for the general
analysis, reveals a variability of 43 to 48 percent in the
calculated emission limits, depending on the choice of the sample
year of input data for the calculations. This indicates an
element of uncertainty in the modeling analysis which may occur in
practice. No new 1000 Mw unit can be operated at the EPA NSPS
limits if terrain elevations greater than stack height occur at a
location within 30 kilometers (18 miles) of a plant site.
A description of the analysis methodology used to determine these
results is contained in a report which I am submitting for the record
with this statement.(())
Comparison of Results Based on Evaluation of House and Senate
Proposals and Current EPA Regulations
This section presents a comparative analysis of the results obtained
in our evaluation of the proposed significant deterioration provisions
contained in H.R. 4151, S. 252, and S. 253 and current EPA regulations.
The principal finding resulting from this comparison is that the
provisions contained in H.R. 4151 are substantially more stringent than
the three other sets of provisions. Table 1 presents a comparison
between the emission limitations that would be required for the 74 plant
sample under each of the three Bills and current EPA regulations. The
principal findings are as follows:
. The maximum plant capacity which could be built at an
"ideal" site, complying with the present EPA NSPS, is
approximately 1,700 Mw under the provisions of H.R. 4151. This is
less than half of the capacity possible at an "ideal" site under
the current EPA regulations and the Senate Bill (S. 252). The
difference results from the very small 3-hour S02 increment
permitted under H.R. 4151.
. Under H.R. 4151 none of the 74 plant sites in the study
sample would be able to accommodate addition of 3,000 Mw capacity
in a facility which meets the present EPA NSPS. Only 10 of the 74
sites (13 percent of the total) would be able to accommodate 3,000
Mw capacity if emissions are limited to 50 percent of the present
EPA NSPS. By comparison approximately 30 of the sample sites
could accommodate 3,000 Mw capacity at 50 percent of the EPA NSPS
under the provisions of the Senate Bill, the Conference Bill and
current EPA regulations. Therefore, H.R. 4151 is substantially
more stringent in limiting the development of large capacity
sites, compared to the alternate proposals. When the actual
planned capacity additions for the 74 study sites are evaluted,
with the assumption that each planned facility would be permitted
to use 100 percent of the increment, H.R. 4151 is generally more
stringent than(()) TABLE 1
COMPARATIVE ANALYSIS OF PROPOSED HOUSE AND SENATE SIGNIFICANT
DETERIORATION PROVISIONS AND CURRENT EPA REGULATIONS
GRAPHIC OMITTED(())
the alternate proposals, particularly in the case of the
facilities located in regions of elevated terrain.
. For all sites controlled by the Class II increment limits,
the House Bill is substantially more restrictive than the Senate
Bill (S. 252) or the Conference Bill (S. 253) or the present EPA
regulations. This results because the 3-hour concentration limit
is more stringent than the 24-hour limit in almost all Class II
cases, and the House Bill 3-hour increment (325 instead of 700
ug/m3). Even the Class III provisions of the House Bill offer no
flexibility beyond Class II limits of the Senate Bill or current
EPA regulations; the House Bill Class III 3-hour increment (650
ug/m3) is more stringent than the Class II increment in the Senate
Bill and EPA regulations (700 ug/m3).(())
Effects on the Siting and Development of Energy Facilities
Small Facilities Required
Implementation of the proposed legislation (either in the form of
H.R. 4151, S. 252 or S. 253) would, in many cases, require the
construction of small, widely separated energy generating facilities.
This could result in a loss of national energy resources, because the
economies of scale of large capacity energy generation might not be
realized. Further, the combined environmental impact of small,
scattered generating facilities would also be greater because of the
need to develop a greater total number of sites, with the associated
requirements for fuel transport facilities, condenser cooling systems,
and transmission line corridors in each case.
One Parameter Environmental Planning
The proposed legislation would create a circumstance where evaluation
of the impact of a single air pollutant (SO2) during a few "worst hours"
per year can act as an absolute veto on the environmental suitability of
a proposed site regardless of other environmental, economic or social
factors. Even if a site were best suited relative to other
environmental considerations, it would be prohibited from development if
the specific increment limits were not attained as required. Our
technical analyses show that the question of attainment of these limits
is not determined by typical or even occasional meterological
conditions, but by very unusual conditions (the most unstable
atmospheric classification, together with light winds) wich occur only a
few days each year at most locations in the country. The presence or
absence of these conditions in a specific meterological record can
control the selection of a site which might otherwise be most suitable
in terms of environmental considerations.
Modeling Uncertainties
Our analyses and our communications with EPA during the past two
years, indicate significant uncertainty, and variability in
regulatory(()) practice, concerning the choice of specific air quality
models, and their associated input data, for site evaluation studies.
These considerations, together with limitations of technical staff
resources in the EPA regional offices, can cause significant delays and
uncertainties in the review of candidate sites for energy facility
development. EPA has recently recognized some of the important
uncertainites in the use of model calculations for regulatory review
(memorandum of Roger Strelow to the EPA Regional Administrators,
November, 1976), and the Agency held a technical workshop on air
pollution models in late February, 1977. Indeed, the recommended
procedures which will be developed as a result of this EPA-sponsored
workshop may require a complete re-analysis of the expected effects of
the proposed significant deterioration provisions in H.R. 4151, S. 252
and S. 253.
Eastern Plant Sites Favored Over Western Sites
Our studies indicate that the significant deterioration requirements
in H.R. 4151, S. 252 and S. 253 would impose more stringent emission
limits for facilities to be located in regions of uneven terrain than
for those in areas of relatively level terrain. Therefore, generating
facility development in the Western mountain states and the Appalachian
Mountains (where much of the nation's fuel resources are found) would be
substantially impeded compared to mid-continent and Eastern level
terrain regions. Mandatory and discretionary Class I areas are also
found primarily in areas of mountainous terrain. These issues are
substantiated by the geographical analysis of results that appears in
Table 2. Both these factors could have the secondary effect of
encouraging postponements in the retirements of existing, relatively
inefficient fossil-fueled power plants in Eastern urban areas and their
operation at higher load factors. This effect of the proposed
provisions should be viewed in context with high concentrations of air
pollutants in the densely populated Northeastern part of the United
States. The net effect of the significant deterioration provisions may
be counter-productive in terms of the desire to reduce this pollution in
the Eastern portion of the country.(())
TABLE 2
PRESENTATION OF MODEL RESULTS BY GEOGRAPHICAL REGION
ANALYSIS OF PLANNED CAPACITY ADDITIONS FOR 74 PLANTS -- STACK HEIGHT
ASSUMED TO BE EQUAL TO 2-1/2 TIMES SOURCE HEIGHT
Number of Plants (Percentage of 74 Plants) in Geographical Region
Effects of H.R. 4151
GRAPHIC OMITTED(())
Documents and Reports Submitted for the Record
I am submitting for the record of this hearing the following two
exhibits which document these conclusions:
1) "Technical Evaluation of the Nondeterioration Portions of
Proposed Clean Air Act Amendments" (Analysis of the Conference
Report provisions undertaken during the past month).
2) "The Impact of Significant Deterioration Proposals on the
Siting of Electric Generating Facilities -- Documentation of
Analyses Undertaken Between July 1975 and September 1976".
(Analysis relating principally to the Senate proposed
nondeterioration provisions.)
Thank you for the opportunity to present this material.
HRG COR MEM GRA
770421 770617
ENVIRONMENTAL PROTECTION AGENCY
--
--
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, NEWS RELEASE OF JUNE 17, 1977, IN WHICH EPA ADMINISTRATOR DOUGLAS
M. COSTLE ANNOUNCED HIS DECISION ON THE SEABROOK CASE (PP 559 TO 564)
--
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95-217
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CW261961 CW261966
05770
(())
Mr. Chuck Krauss
House Subcommittee on Investigation
and Review
Committee on Public Works and
Transportation
B 376
Rayburn House Office Building
Washington, D C 20515
Dear Chuck
During the oversight hearings on Section 316(a) and (b), you
expressed some interest in the number of power plants that have been
delayed or cancelled. Attached is a tabulation of the number of nuclear
and fossil fuel units that have been delayed one year or more or
cancelled between January 1, 1974 and January 1, 1977.
Also enclosed are copies of the National Electric Reliability Council
report and the report by the Mitre Corporation for the Federal Energy
Administration referred to in Don Allen's testimony.
If you'd like, please include these as part of the hearing record.
Very truly yours
Robert C. Paladino
Environmental Projects Manager
RCP:dag
Attachments(())
NUCLEAR AND CONVENTIONAL STEAM TURBINE-GENERATORS, 300 MW AND LARGER,
REMOVED FROM SCHEDULE AND DELAYED ONE YEAR OR MORE BETWEEN JANUARY 1,
1974 AND JANUARY 1, 1977 GRAPHIC OMITTED(())
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICIAL BUSINESS
PENALTY FOR PRIVATE USE $300
AN EQUAL OPPORTUNITY EMPLOYER
POSTAGE AND FEES PAID
U.S. ENVIRONMENTAL PROTECTION AGENCY
EPA-395
ENVIRONMENTAL NEWS
Fitzwater (202) 755-0344
O'Neill (202) 755-0344
Acly (202) 755-0344
Casey (202) 755-0344
Ryan (202) 755-0344
EMBARGOED FOR RELEASE AFTER 10:00 A.M. FRIDAY, JUNE 17, 1977
EPA'S COSTLE APPROVES THERMAL DISCHARGE PROPOSED FOR SEABROOK NUCLEAR
POWER PLANT
Environmental Protection Agency Administrator Douglas M. Costle today
determined that the formal public hearing record is adequate to permit
approval of the heated water or "thermal" discharge proposed for the
2,300 megawatt nuclear power plant planned in Seabrook, New Hampshire.
"The Seabrook plant has become a major symbol in the debate over
nuclear power. The sit-in last month clearly demonstrated the depth of
feeling of many people about this issue," Costle said.
"However, the decision before me in reviewing this appeal was an
extremely narrow one. The issue presented to me was this -- was the
formal record adequate to determine whether (a) 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 (b) will the proposed intake structures reflect
the best technology available for minimizing adverse environmental
impacts?(())
"This issue is obviously highly technical. To guide me on this
question, I asked a group of Agency scientists to assist me in reviewing
the record. Based on their recommendations, I have determined that the
record is adequate to reach a decision and that the proposed cooling
system does meet the test set forth in the law."
A final decision on construction of the power plant will depend upon
actions of the Nuclear Regulatory Commission, the government's nuclear
power licensing agency.
The cooling system at Seabrook would consist of two lengthy tunnels
into the Atlantic Ocean, one to withdraw cold water to cool the plant's
two nuclear reactors, the other to return the heated water to the sea.
Several environmental groups have opposed this plan, fearing that it
would harm fish and shellfish and disrupt the ocean environment.
The Seabrook plant, which would be operated by the Public Service Co.
of New Hampshire, is intended to provide electricity in New Hampshire
and Massachusetts beginning in the early 1980's.
Operating at full capacity, the plant would draw 1.2 billion gallons
per day of seawater through an intake tunnel in the ocean floor to cool
its two nuclear reactors. This water, returned to the sea by another
tunnel, would be 39 degrees warmer than normal ocean temperatures (which
range between 40 and 60 degrees). During backflushing (reversing the
flow to clean the sytem), which would occur once or twice a month, the
temperature of the discharge would rise to 120 degrees.
In his 48 page decision, Costle:
-- found that the information in the record was sufficient to
determine that ocean life would be adequately protected;
-- directed the Regional Administrator to determine what additional
conditions should be attached to future discharge permits for the plant
to assure the protection and propagation of the natural population of
fish, clams, and other ocean species;
-- ruled that these permits must limit backflushing the cooling
system during adverse meterorological and hydrological conditions (such
as prolonged onshore winds) to further assure protection of ocean life;
-- directed the Regional Administrator to require the Public Service
Co. to prepare a plan of studies that will provide additional
information on the effects of the plant's operation.(())
-- affirmed the Regional Administrator's initial finding that the
plant's intake tunnel should be at the "far site" to further minimize
any potential environmental effects. This far site would be 7,000 ft.
at sea. Public Service Co.'s original proposal was for a tunnel 3,000
ft. into the ocean;
-- found that the adult Mya (clam) population would not be
significantly reduced by larvae deaths caused by heat; and
-- found that the intake and discharge tunnels represent
state-of-the-art (best available technology) in design and location of a
cooling system at the proposed site.
Costle's ruling reverses an earlier decision by the EPA Regional
Administrator in Boston who ruled against the plant in November 1976 on
the basis that insufficient information existed to judge the ecological
impact of the thermal discharge.
# # #
ABBREVIATED CHRONOLOGY OF SEABROOK DECISION
July 1973 The Company files applications for construction with
the Atomic Energy Commission (now the Nuclear Regulatory
Commission (NRC)).
August 1974 The Company files its 316 application.
January 1975 Region I holds a public hearing
June 1975 Region I approves the proposed once-through cooling
system, without specifying location on intake structures.
October 1975 Region I requires that the intake be located at
the "far-site" rather than near the biologically productive Sunk
Rocks.
late 1975, Environmental and other groups request an
early 1976 adjudicatory hearing to contest Region I's decision.
March-May Adjudicatory hearings are held; the presiding
1976 Administrative Law Judge certifies the hearing record to
the Regional Administrator
June 1976 The Licensing Board of the NRC grants Seabrook's
construction permits, stating that once-through cooling is
environmentally acceptable.(())
November 1976 The Regional Administrator, acting without
benefit of consultation with his staff experts (because in
defending their initial decision they had become parties to the
case), rules that the record is inadequate for him to determine
that the discharge meets statutory requirements. The Company
appeals to then Administrator Train.
December 1976 Train agrees to hear appeals on two issues: the
adequacy of the record regarding the thermal discharge itself, and
the location and design of the intake structures.
January 1977 The Company and another utility file briefs.
January 1977 The NRC's Atomic Safety and Licensing Appeals
Board suspends Seabrook's construction permits.
February 1977 Opponents of the plant file briefs.
February 1977 The NRC Commissioners decide that limited
construction can continue.
March 1977 Costle takes office and asks several Agency
scientists to help review the record; he requests additional
information about backflushing.
May 1977 Panel and staff members recommend reversing the
Regional Administrator's decision.
June 1977 Costle concurs in the recommendation.
HRG OTH
770421 770513
PUBLIC SERVICE INDIANA
--
SUBCOMMITTEE ON INVESTIGATIONS AND REVIEW HOUSE COMMITTEE ON PUBLIC
WORKS AND TRANSPORTATION
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, PUBLIC SERVICE CO. LETTER CONTAINING MATERIAL SUPPLEMENTING
TESTIMONY, RESPONDING TO CERTAIN ISSUES RAISED, AND PRESENTING EPA
DOCUMENTS (PP 565 TO 570)
--
--
95-217
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CW261967 CW261972
05771
(())
May 13, 1977
Hon. Bo Ginn, Chairman
House Subcommittee on Investigation and Review
House Public Works & Transportation Committee
U.S. House of Representatives
Room B376-Rayburn House Office Building
Washington, D.C.
Attn: Committee Counsel
Re: Subcommittee Hearings on Thermal Discharges, April
19-21, 1977
Dear Mr. Chairman:
On behalf of Public Service Company of Indiana, Inc., I would like to
supplement the record of the hearings heald April 19-21 on thermal
discharges (under Section 316 of the Federal Water Pollution Control
Act). PSI representatives were present throughout the hearings. It
appears that two basic problem areas relating to Section 316 were
discussed in the testimony, and that one additional problem area may not
have been made clear from the testimony. Taken together, these three
problem areas may serve as a basis for remedial amendment of Section
316.
Thermal Discharges and Intake Structures
First, there was lengthy discussion about the difficulty of
establishing clear, meaningful legislative standards for decisions on
subjective biological issues.
For example, the phrase "a balanced indigenous population" in Section
316(a) is a legislative standard for biological judgment and decision,
which was discussed at some length. Under Section 316(a), an applicant
must bear the burden of proof that maintenance of a balanced indigenous
population can be assured in order to be granted a waiver from
technologically based
Public Service Company of Indiana, Inc.
1000 East Main Street, Plainfield, Indiana 46168 317.839.9611(())
effluent guidelines established under Section 301. Congress' in-tent
under Section 316(a), obviously, was to waive the technologically based
requirement if it had no biological necessity insofar as the thermal
discharge is concerned.
Of course there is substantial room for disagreement over the
appropriate meaning of "a balanced indigenous population". The meaning
of the phrase as applied to a particular case seems to us to turn on the
Regional Staff's interpretation of the facts in that case. Staff is
able to interpret the phrase differently from case to case in order to
achieve the result it desires. At the Subcommittee hearings, one
witness (Dr. Goodyear) suggested that "a balanced population" should be
that aquatic population which would exist in the absence of thermal
stress. We note, on the other hand, that such an interpretation, if
adopted, would effectively nullify Section 316(a)'s intent to allow for
waivers. PSI believes that Congress meant that waivers should be
allowed so long as "a balanced population" was present, even though it
was not the population which would be present in the absence of human
activity. There is obviously much room for dispute in particular cases
under Section 316(a) as presently drafted. Moreover, the applicant's
chance of meeting its burden of proof is virtually impossible if, in
particular cases EPA can impose a standard of scientific certainty on
the applicant's evidence.
Moreover, even if an applicant were to succeed in sustaining its
burden under Section 316(a), EPA (for example in the Hudson River cases)
has construed Section 316(b) to override Section 316(a). Section
316(b), which relates to intake structures, requires that "the best
technology available for minimizing adverse environmental impact" be
installed. Since EPA believes that cooling towers are the "best
technology" to "minimize" the environmental impact of once-through
cooling intake structures, EPA contends that it can require installation
of towers even though a balanced indigenous population is shown to exist
in the River. Under this interpretation, EPA is actually saying that
even though Congress allowed some aquatic impact from heat discharges,
it did not allow any aquatic impact to occur from intake structures.
This interpretation makes little sense. The problem is the EPA reads
Section 316(b) as a technologically based standard, and not as a
biologically based standard, like Section 316(a).
PSI believes that both Section 316(b) and Section 316(a) should
contain the same biologically based standard. Certainly if a fish
population is allowed to be cropped to some degree by head discharges,
it should be allowed to be cropped to the same degree by intake
impingement or entrainment.(())
Procedural Matters
The second area of concern which surfaced at the hearings relates to
hearing procedure and the process of making the final decision. PSI
firmly believes that the adversary process must be retained, with the
opportunity for cross examination, at NPDES hearings where there are
disputed factual issues. Contrary to popular belief, inordinant delays,
which are all too common in the licensing process, are not usually the
result of time needed for cross examination. Delays tend to occur in
the pre-hearing processing of licensed applications, and in the time
required to make a final decision after the hearing. Delays also occur
as a result of appeals and remands. While appeals are sometimes
difficult to avoid, remands can tend to be minimized; if the hearing
record is adequate in the first instance. The adversary process is
important to assure that an adequate record is developed. Remands have
also often occurred in recent years as a result of new legislation, such
as NEPA, when the new law comes into effect after the hearing has taken
place, but before the decision is final.
Under EPA procuedures the hearing record and post-hearing briefs are
certified to the Regronal Administrator for decision. The
Administrative Law Judge, who presides, does not generally make an
initial or recommended decision, and important continuity and intangible
matters (such as witness demeanor) are lost in the decision process.
Moreover, since the Administrative Law Judge is not required to render a
decision, he does not necessarily even read the prepared direct
testimony or exhibits, and, therefore, may be less than effective in
ruling on objections on the grounds of relevance, materiality or
redundancy. Under this procedure, the Regional Administrator is faced
with the tremendous task of making a decision on a "cold" record,
without the assistance of Staff, and possibly without full appreciation
of the true issues in dispute. Seabrook appears to be an example of a
case where the applicant believed that the hearing concerned a few
issues raised on exception to an Initial Determination, while the
Regional Administrator seemed to believe he was deciding the whole
permit de novo. This situation emphasizes the necessity for EPA Staff
to state fully the facts and reasoning upon which it relies in proposing
disputed permit conditions before a hearing takes place, in order that
all parties are fully aware of the precise issues to be adjudicated.
This was pointed out in Con Edison's testimony.
Retrofitting Existing Plants and Design of New Plants
A third problem area, perhaps not clearly defined at the hearings, is
the distinction between retrofitting existing(()) power plants with
cooling towers and the design of new plants to include cooling towers.
Construction of a cooling tower at an existing power plant can be
inordinantly costly. EPA attempted to recognize this problem in its
steam electric power plant effluent guidelines by stating that towers
should not be required at plants which commenced operation before
January 1, 1970. But, EPA then went on to require installation of
towers at such older plants if required by water quality standards. In
the case of PSI's Wabash River Generating Station, an older plant, EPA
Staff then took the position that a Section 316(a) waiver should not be
granted because State water quality standards might be exceeded a small
percentage of the time. In this connection PSI contends that EPA Staff
misinterpreted the State water quality standards.
Installation of cooling towers at older facilities requires higher
installation costs, greater auxiliary power usage, and higher operating
costs than those for a new plant. PSI believes that existing
facilities, that is facilities which are not "new sources" within the
meaning of Section 306(a), should not be required to be retrofitted with
cooling towers, and that there should be a substantial distinction made
in the Act between existing sources and new sources, insofar as thermal
discharges and intake structures are concerned.
Legislative Considerations
PSI believes that the problems experienced under Section 316(a) and
316(b) as presently drafted are widespread throughout the Nation, and
are present not only in contested proceedings, such as those involving
Seabrook, the Wabash River, Brunswick and the Hudson River, but also in
cases which have been settled or which are still pending. Unless
Section 316 is amended, these problems will plague each power plant
operating on once-through cooling in the Nation once every five years
(the maximum time for which an NPDES permit can be issued).
This kind of recurring controversy, and the resulting cost and
problems, could be largely minimized through remedial amendment of
Section 316. Such amendment should take into account:
1. That retrofit of existing plants (i.e.: plants already
constructed and operating or committed to construction as defined in
Section 306) is much more costly in terms of dollars and energy penalty
than design of new plants with cooling towers. As to this point it is
suggested that Section 316 be revised to reflect that:(())
(a) Towers should not be required at existing plants unless EPA
bears the burden of proof that actual biological studies with the
plants under operation show that such operations has resulted in
significant ecological "imbalance" over an ecologically
significant portion of the waterway.
(b) Towers may be required at new power plants (if called for
under EPA Section 306 regulations) unless the applicant for the
NPDES permit shows, on the basis of predictive biological studies,
that there is reasonable assurance that, with once-through
cooling, a balanced population can be maintained.
2. That the same biological test ("a balanced, indigenous
population") should apply, under 1(a) or 1(b) above, to consideration of
both thermal discharge impact and intake (entrainment and impingement)
impact. In other words, it should be clear that the same biological
standard applies for granting a waiver from both heat and intake
effects.
Clarification of EPA, Region V Assertions
There are three matters which witnesses for Region V alluded to which
the Company feels need clarification.
1. It was stated that the Staff s denial of our request for
alternate limitations was based on their interpretaion of Dr. Gammon's
data not on violations of State Water Quality Standards or other
factors. This is simply not the case. I am attaching as Exhibit A to
this letter a copy of the determination letter of Region V, dated
February 27, 1976, which letter sets forth precisely the reasons why
Region V considered our request for alternate limitations to be denied.
2. EPA, Region V states that the Staff had not prejudged the issue.
I am enclosing as Exhibits B and C the two staff memos referred to in
PSI's direct testimony which clearly indicates to us a predisposition of
this entire matter.
3. Region V witnesses stated that at certain times 100% of the
Wabash River would be run through the Cayga Generating Station. This
statement creates a false and unduly inflammatory impression of what
would happen during low flow conditions on the Wabash River. The
statement by EPA is one arrived at through the simple calculation of the
cubic foot per second flowing in the river compared to the cubic feet
per second for the water intake requirements of the plant. Under
certain conditions of low flow it is mathmetically conceivable that the
water intake requirements of the plant would exceed the total river
flow. One immediately gets the impression, when faced with(()) this
concept, that the entire reiver would, therefore, be diverted through
the plant. The entire stream going into the intake and being discharged
through the outlet and in between there is a dry river bed. This would
not and cannot happen for the following reasons: first, if conditions
of low flow such as those conceived above were to exist the plant
operations would be reduced to a level which would avoid this
contingency. Second, even if the intake demand would exceed the river
flow you would not have a situation where a void would be created in the
stream. Hydrologically, this simply would not happen.
Final Observation
Several Congressmen, during the course of the hearings, mentioned
"fish kills" and it was not clear in what context such results would
occur. PSI merely wishes to note that there have not been any "fish
kills" in the Wabash River as the result of thermal discharges from our
plants. The effects of these discharges on the aquatic biota are at
most subtle, certainly not lethal. This point should not be obscured.
PSI would be pleased to discuss these matters further with the
Committee and its Staff.
Sincerely yours,
HRG MEM GRA
770421 769999
JAMES O. MCDONALD
DIRECTOR, ENFORCEMENT DIVISION, UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY
DR. JAMES COUGHLIN, VICE PRESIDENT, NUCLEAR & TECHNICAL SERVICE COMPOANY
OF INDIANA, 1000 EAST MAIN STREET, PLAINFIELD, INDIANA 46168
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, LETTER FROM JAMES O. MCDONALD (PP 571 TO 585)
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95-217
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CW261973 CW261987
05772
(())
Dr. James Coughlin
Vice President
Nuclear & Technical Service
Public Service Company of Indiana
1000 East Main Street
Plainfield, Indiana 46168
Dear Dr. Coughlin:
This letter is to inform you of the determination of Region V and
explaination thereof, on the request of Public Service Company of
Indiana (PSI) for alternative thermal effluent limitations to be imposed
in the NPDES permits for the Cayga and Wabash Generating stations.
These requests were made by PSI pursuant to Section 316(a) of the
Federal Water Pollution Control Act, as amended (the Act).
On December 13, 1974, you submitted documents and reports in support
of alternative thermale effluent limitations for the Cayuga and Wabash
Generating stations. Your letter indicated that the alternative
limitations desired were, in essence, "present operation" of both plants
with no thermal conditions other than operation of the existing cooling
facilities at the Cayuga station. On March 17, 1975, we responded to
your request and indicated that certain additional information -
outlined in some detail in our letter - was needed before we could make
a final decision. On July 8, 1975, you submitted an additional report
which addressed our comments.
The thermal regulations applicable to these plants include the State
of Indiana Water Quality Standards and the USEPA Effluent Guidelines for
Steam Electric Power Plants. At the Cayga station, USEPA Effluent
Guidelines for Steam Electric Power Plants 40 C.F.R. 423.13(e), specify
that units of 500 MW or greater placed into service after January 1,
1970 shall have no discharge of heat except for blowdown. This
limitation must be med by 1981 with certain exceptions based on power
needs. In addition, Indiana Water Quality Standards must be met by July
1, 1977. For the Wabash station the pertinent requirements are Indiana
Water Quality Standards which must be met by July 1, 1977. Where
alternative thermal limitations are sought, the 316(a) regulations (40
C.F.R. 122) are applicable.
Both stations are also subject to Section 316(b) of the Act which
requires "best technology available" to minimize adverse environmental
impact of cooling water intake structures. Some assessment of the
potential impact of the intakes was made for both the Cayuga and Wabash
plants in your July 8, 1975 response to our comments.(())
My technical staff has reviewed the December 13, 1974 and the July 8,
1975 reports in great detail. We have also discussed with Dr. James
Gammon of DePauw University the results of his 1975 field surveys and
additional unpublished data concerning fish egg and larval distribution
in the Wabash River. In addition, we have utilized other publications
from the scientific literature and 316(a) and (b) demonstrations from
other dischargers including, but not limited to, those from dischargers
on the Ohio River, White River, and Illinois River. After careful
review and consideration of all of these materials, we have concluded
that relaxing the otherwise applicable thermal effluent limitations to
the extent that you have requested is not warranted at the Cayuga and
Wabash sites. Our conclusion is essentially based on the following
considerations:
1. Violations of Indiana Water Quality Standards (SPC 1R-3) are
frequent including excursions from the 5oF rise limitation,
monthly maximum termperatures and mixing zone recommendations.
2. Although the demonstrations do not address reasonably
anticipated "worst case conditions," the modeling results indicate
that temperatures above 90 F can be expected to persist for
approximately seven miles below the Cayuga station and
approximately six miles below the Wabash station under flows two
times the expected seven day once-in-ten year low flow. Such
flows are expected to occur for approximately 30 to 60 day periods
every two years and for approximately 30 days during the summer
every five years. We note that one of the assumptions used in the
NUS modeling was a monthly average intake temperature at Cayuga of
79 F. Our review of Cayuga intake temperature data indicates that
for shorter periods of up to two weeks, temperatures of 80F to 82
F are more appropriate. Under these condrtions, the effects may
be somewhat worse than those described in the demonstration. For
even shorter periods of 1-3 days, temperatures as high as 83 F- 86
F have been recorded at the intakes of the Cayuga and Wabash River
stations: conditions which are likely to produce even more severe
effects. In developing the modeling assumptions, we believe that
a worst case analysis using the seven day once-in-ten year low
flow would have been appropriate. In addition, it is unclear in
the demonstration whether or not the cooling tower at Cayuga was
assumed to be operating for purposes of modeling. The company has
indicated to us that they believe the modeling was based on an
assumption of cooling tower operation. We must point out that
under the seven day once-in-ten year low flow at the Cayuga site,
insufficient water is available for operation of the station
without internal recirculation of the discharge water. The
adverse effects of plant operation at low flows are not limited to
the thermal discharge. Reports by Sargent and Lundy Engineers,
dated April 30, 1968 indicate that under low flow conditions the
oxbow area between the intake and discharge would have flows as
low as 70 cfs. The oxbow is approximately two miles long. Thus,
under low flow conditions (approximately 930 cfs) two miles of the
Wabash River would be reduced to an extremely small downstream
flow.(()) Except for pooled areas much of the normal river bottom
would be dry. The effects of such occurrences on aquatic life
could, we believe, be very serious. Areas below the discharge
canal would experience the full impact of the thermal discharge.
3. In comparing the cooling water volume from the Cayuga
station (1320 cfs) with the U.S.G.S. predicted low flows at
Montezuma, Indiana, we not that flows of 1200 cfs are expected to
occur for 60 day periods once every five years. During the summer
months flows of 1270 cfs are expected to occur for 14 days every
five years and 1490 cfs for 60 days every ten years. At these
times potentially all of the Wabash River must be pumped through
the Cayuga station for condenser cooling purposes. Similarly, at
the Wabash station with a cooling water flow of approximately 1060
cfs, river flows of 1090 cfs are expected to occur for seven days
every five years and 1110 cfs for 30 days every ten years (Based
on U.S.G.S. extimates for the Terre Haute, Indiana Gauging
Station). During the summer, river flows of 1300 cfs and 1760 are
expected to occur for 30 days and 60 days respectively every ten
years. At these times approximately 60-80% of the Wabash River
would pass through the station for cooling purposes. Under the
conditions noted above, for both the Cayuga and Wabash stations
virtually no zone of passage would exist and all drifting or
floating organisms (fish eggs, larvae, phytoplankton, zooplankton,
and macroinvertebrates) would be subject to condenser passage. At
the Cayuga stations approximately one half of the organisms must
also pass through the cooling tower and all must pass through the
long discharge canal.
4. Our further examination of U.S.G.S. flow data indicates that
conditions similar to those described above have in fact occurred
in the recent past. In August 1966, flows at the Montezuma
Gauging Station ranged from 1100 cfs to 1590 cfs with a monthly
average of 1323 cfs. In October 1966, flows at the Montezuma
Gauging Station ranged from 953 cfs to 1290 cfs with a mean of
1091 cfs. Flows in August 1967 at Montezuma ranged from 1330 cfs
to 2360 cfs with a monthly mean of 1653 cfs. Flows ranging from
955 cfs to 1170 cfs (mean 999) occurred in October 1964. With
regard to the cited flows at the Montezuma Gauging Station, we
note that flows at the Cayuga station approximately 13 miles
upstream are likely to be somewhat lower while flows at Wabash
station 21 miles downstream are likely to be somewhat higher.
5. Temperatures which have occurred or may reasonably be
predicted to occur at these sites have been shown to adversely
affect indigenous biota. While the analysis of temperature effect
on the fishery was done for Redhorse, Channel Catfish, and Gar
(three levels of thermal impact) we note that the following
additional species which are found at these sites would be(())
effected by temperatures between the 81.5 F upper avoidance for
Redhorse and the 89.6 F upper avoidance for Channel Catfish:
.. #SPECIES ......... OPTIMUM TEMPERATURE RANGE#
......................... C ................ F
.. Freshwater drum .. 29.0-31.0 ....... 84.2-87.8
.. Gizzard Shad ..... 28.5-31.0 ....... 83.3-87.8
.. Central Quillback 29.0-31.0 ....... 84.2-87.8
.. White Crappie .... 27.0-28.5 ....... 80.6-83.3
.. Spotted Bass ..... 27.0-28.5 ....... 80.6-83.3
.. White Bass ....... 28.5-29.5 ....... 83.5-85.1
.. Skipjack Herring . 26.0-28.5 ....... 78.8-83.3
.. Sauger ........... 26.0-28.0 ....... 78.8-82.4
.. Goldeye .......... 27.0-29.0 ....... 80.6-84.2
.. Mooneye .......... 27.5-29.0 ....... 81.5-84.2
((/#/ From Gammon, June 1973 - P. 96))
Thus, for each increment of temperature above 81.5oF up to 89.6
F, one or more species would be expected to avoid significant
segments of the river impacted by the thermal discharges. When
temperatures in excess of 90oF are sustained, the avoidance impact
will be more severe.
Data from other published reports also indicate that the
following species would avoid areas above the indicated
temperatures:
.. Coutant (Feb. 3-6, 1975) ..... Largemouth Bass ..... 86oF
.. Coutant (August 1974) ........ Black Crappie ....... 86oF
.. Neil & Magnuson (October 1974)
.. Neil & Magnuson (October 1974) Rock Bass ........... 84.2oF
................................. Bluegill (53-99 mm) . 88 F
.. Coutant (August 1974) ........ White Sucker ........ low 80's
.. These species are known to occur at the Wabash and Cayuga sites.
(())
More to the point, however, are the summar and conclusions by Dr.
James Gammon, June 1973, in his report "The Effect of Thermal Inputs on
the Populations of Fish and Macroinvertebrates in the Wabash River". He
concluded that:
"The assemblage of species of fish in the Wabash River responds
predictably to additions of heat from electrical generating
stations. The assemblage as a whole gives evidence of stability
for a range of temperatures from about 26 C to about 31 C with
respect to numeric abundance, biomass, and diversity. In a
defined stretch of the river receiving thermal additions and
gradually increasing in temperature over a period of days, subtle
yet predictable shifts occur in the composition of the assemblage.
Species with relatively low optimum temperature preferences will
move out of the heated segment and into cooler water, while
species with relatively high optimum temperature preferences will
move into the heated segment from cooler water. The net result is
a shift in species composition, but not significant alteration of
some commonly used indices of community well-being. When the
temperature of the segment exceeds about 31 C there is a sharp
reduction in numeric abundance, biomass, and diversity as the
assemblage is reduced to perhaps five or six thermally tolerant
species. Further elevations to temperatures beyond 34 C - 35 C
cause all species to leave the segment."
Dr. Gammon further notes on pages 32-33 of that report:
"The number of species taken in the thermal zones waso
remarkably constant up to a temperature of about 31.5 C after
which a sharp decrease in diversity occurs. The magnitude of
changes in density, however, are much greater than fluctuations in
diversity, peaking at about 40 fish caught per kilometer
electrofished between 27 C and 30 C and decreasing rather markedly
at both higher and lower temperatures. At temperatures higher
than about 32 C the catch was only 25% as great as at this optimal
range. The curve for biomass is similar to that of density except
for a sharper decline at 32 C. Between 30 C and 32 C those
species with lower preferenda - generally smaller species such as
crappie, white and spotted bass, skipjack herring, goldeye, and
mooneye - are moving or have moved out, while those species
preferring higher temperatures - generally larger species such as
carp, gar, buffalofish, and catfish - are moving in. Therefore,
although density decreases, biomass is maintained at about the
same level between 30 C and 32 C."(())
During the period of Dr. Gammon's study, from 1967 to the present,
the combined effect of the Wabash River and Cayuga stations has been
present only since May 1972, when the second 500 MW unit at Cayuga went
into operation. If we assume that the present cooling tower at Cayuga
largely ameliorates the thermal effects of the second unit (other than
impingement and entrainment), then the combined effects of the first 500
MW unit at Cayuga and the 970 MW at Wabash station have occurred since
October 1970. During that period (October 1970 to present) the lowest
daily flows at the U.S.G.S. Montezuma Gauging Station were 1710 cfs in
August 1971 and 1450 cfs in September 1971. Average flows for August
and September were 2324 and 3505 cfs respectively. Since this period in
1971, summer and early fall flows in the Wabash River have not been
below 1979 cfs and have averaged 2400 cfs or more. Thus, it can be
reasonably concluded that thermal effects observed in 1972-1974 were not
as severe as would be predicted under lower flow regimes.
In 1974 daily flows of 2220 cfs in August and 2340 cfs in September
were recorded at the U.S.G.S. Montezuma Gauging Station. While these
flows are substantially above those which can be anticipated Dr. Gammon
in his studies during this period described the effects of the thermal
discharges on several fish species:
"Golden redhorse (Moxostoma erythrurum) were more abundant in
the upstream segments including Cayuga, and all but absent from
Wabash Valley and below Terre Haute. It was postulated that this
species would probably be eliminated from the Cayuga area and
downstream (Gammon 1973), but they have maintained constant
population levels since 1972. Shorthead redhorse (M.
macrolepidotum) and silver redhorse (M. anisurum) were present in
fewer numbers, but were distributed much the same as were golden
redhorse. Freshwater drum (Aplodinotus grunniens) were fairly
evenly distributed throughout with obviously reduced abundance at
the Cayuga and Wabash Valley plants, and depressed populations
below Terre Haute. Populations of drum have shown no definite
trends over the years at the power stations.
Sauger (Stizostedion canadense) were much more abundant above
Cayuga and also fairly abundant in the intermediate segment. They
were present in somewhat lower number at Cayuga and Wabash Valley
and nearly absent below Terre Haute. Since the Cayuga plant began
operations in 1970 the catch of sauger has been roughly half as
great as in years previous.(())
Longear sunfish (Lepomis megalotis) were essentially restricted
to the uppermost segment, although a few fish were caught in the
power plant segments. Abundance at Cayuga declined sharply during
the past several years.
Flathead catfish (Pylodictis olivaris) were well-represented
from Cayuga downstream, but nearly absent above Cayuga.
Preliminary collection from this uppermost segment in 1973 also
yielded no individuals of this species. The Cayuga power plant
has proven to be beneficial to this population in the intermediate
segment. Channel catfish (Ictalurus punctatus) were taken
sporadically in unexpectedly low numbers throughout the study area
with the greatest concentrations occurring below Terre Haute.
None have been collected at Cayuga during the past two years,
although small catches were made in earlier years.
In addition to the above, examination of Meikle's M.A. Thesis "The
Biology of the Flathead Catfish +++ May 1975," indicates that the
thermal effluent is providing a more suitable environment for the
Flathead catfish at the expense of the Channel catfish. This suggests
that other subtle shifts, as yet unstudied, may also be taking place.
Such shifts may be of a long term nature and difficult to determine.
6. We have carefully examined the argument advanced in the
response to our March 17, 1975 comment #13 (page 13-1 in your July
submission). You state that Redhorse populations throughout the
entire River have not been determined. We believe this argument
is not valid. Sampling was conducted above the Cayuga station
during all years and above these stations serves as a "control" so
that thermal effects can be determined. Any natural change in the
overall Redhorse population would have been reflected at stations
upstream from Cayuga station as well as above the Wabash station
prior to start-up of Cayuga. Furthermore, in assessing the impact
of these two stations our concern is not primarily with impact
upon the entire Wabash River but most significantly with the
segment in which affects can be predicted or identified due to the
plants' operation.
You have pointed out on page 13-3 in your 316(a) supplement
that Golden Redhorse 1974 catch rates above and in the Cayuga
segment are not significantly different. However, catch rates for
the other three redhorse species are reduced in the Cayuga segment
and catch rates for all redhorse species are much lower at the
Wabash River site. In addition, we note the following statement
on page 1-6 of the demonstration "Catches of redhorse downstream
of the Cayuga and Wabash River stations appear to have decreased
since 1970, but have remained more or less stable in the last few
years. We believe it important to note also that the thermal
impact has been exerted for the longest period at the Wabash
station and redhorse catch rates at that site have been the lowest
even in 1974. Gammon states(()) (1973) that "the redhorse
population at the Wabash Station seems permanently reduced." He
further reports (1974) that "Golden redhorse +++ were +++ all but
absent from Wabash River and Terre Haute."
We note also that certain fish species at the Cayuga and Wabash
sites have been listed as either Rare (R) or status undetermined
(U) in reports on rare and endangered species for Ohio and
Illinois. A similar report on rare and endangered species of
Indiana has not, to our knowledge, been published. However, we
have used the reports "Rare and Endangered Vertebrates of Ohio" by
H.G. Smith et.al. (The Ohio Journal of Science, Vol. 73 No. 5
September 1973) and "Rare and Endangered Fish of Illinois" by A.C.
Lopinot and Philip W. Smith (Illinois Department of Conservation,
Division of Fisheries, May 1973) to obtain some indication of the
possible status of similar fish species in Indiana. According to
those reports the River Redhorse (Moxostoma carinatum) is listed
as rare in Illinois and the Shortnose gar (Lepisosteus
platostomus) is listed as rare in Ohio. In addition, the Mooneye
(Hiodon tergisus), Ohio Redhorse (Moxostoma macrolepidotum
breviceps) and Sauger (Stizostedion canadense) are listed as
status undetermined in Ohio. All of these species have been
reported from the study areas encompassed in your 316(a)
demonstration. All of these species except the shortnose gar are
thermally intolerant and may be adversely effected by the thermal
discharges.
7. In response to EPA comment #3 you have indicated that the
"impact" criterion used was whether more than 20% of the 100 mile
river segment experiences temperatures in excess of upper
avoidance temperatures (UAT) derived from Gammon's (1973) data. A
further statement in the report acknowledges that "the 20% value
is arbitrary, but seems reasonable in the context of a 20%
reduction of "suitable environment". According to your own
analysis, significant "impact" has occurred during 57% of the time
in June, July, August, and September of 1971-1974. While the
report points out that these results must be interpreted with
care, we believe that the analysis is inappropriate in several
respects. We believe that the 20% assumption, which represents at
a minimum 20 miles of the Wabash River, is excessive. While we
are concerned about the impact of all pollutional sources on the
aquatic life of the Wabash River, the data is not available to
establish what the total impact is. Our attention must focus on
the segment impacted by the Wabash and Cayuga stations. The
recent studies by Dr. Gammon have encompassed approximately 100
miles from above the Cayuga station to below the Wabash station
and Terre Haute. The analysis presented to us indicates that at
least 20 miles and as much as 50 miles or more of the Wabash would
experience temperatures during half the summer which would
normally be avoided by some species of fish including redhorse and
sauger. We must point out that your analysis was based on four
years of generally average or above average flows. In addition,
the analysis did not include possible "critical days" in October
of any year. The "critical ambient" temperatures used in your
analysis ranged from 70 F (at 2 X low flow) to 74 F (at 6000 cfs).
Such temperatures and flows were common at the Cayuga intake in
October 1971. While further analysis might(()) reveal other times
of critical flow or temperature we believe that the months June
through October encompass most of these periods. The response to
EPA comment #3 also fails to consider avoidance by species other
than redhorse and sauger and the frequency and distance of
avoidance.
We note too that approximately 20 miles of the 100 miles used
in the analysis is also effected by the municipal - industrial
complex in the Terre Haute area.
While it is stated on page 3-4 of the report that "Fish can
experience temperatures in excess of their UAT (but below their
upper lethal temperatures) for considerable lengths of time with
no ill effects.", we believe the discussion on page 12-7 is more
appropriate. The report notes as follows:
"This analysis showed that, assuming reasonable accuracy of the
model, the MWAT: Growth for sauger was violated in more than 20%
of the river segment in question during June-September, that of
white crappie was violated in July and August. The criteria for
gizzard shad, emerald shiner, and channel catfish were not
violated."
Thus for those few species for which growth data is available
the maximum weekly average temperature for growth would be
exceeded. We note that this analysis was performed assuming 4000
cfs (=median summer flow) and mean monthly ambient temperatures
for the period 1967-1974. Thus, under normal or average
conditions these effects would be anticipated. This analysis does
not consider the additional adverse effects which may result from
increased crowding, predation and competition when species are
forced to avoid long stretches of the river and are superimposed
upon existing fish populations and already occupied ecological
niches.
We have, in addition, considered the potential impact of the
Cayuga and Wabash station intakes on the aquatic life of the
Wabash River.
1. On Page 14-1 (response to EPA comment #14) it is stated
that "Mancini indicated that the mortality estimates for the
Wabash station are highly speculative because of a lack of
knowledge of the distribution of ichthyoplankton in the Wabash
River." We understand from Dr. Gammon that some data on
ichthyoplankton distribution is available. We have requested
copies of that data and understand that data and understand that
Mr. Swallow of your company also has or will receive a copy.(())
2. We concur with the reservations expressed at the top of
page 14-2 with respect to the Mancini and King study. While the
conclusions drawn must be viewed in the light of the limitations
and assumptions of the analysis, we believe the true impact is
probably somewhat worse than described. Our reasons for believing
this are further described below.
3. On page 14-4 it is stated that "Additional losses of fish
eggs and larvae due to passage through the cooling towers will be
small as little spawning activity is expected at this time of the
year and a large proportion of the young fish in the river are
expected to have reached a size at which they are no longer
vulnerable to entrainment." No documentation is provided for this
statement. Further, the design and location of the Cayuga intake
and reports of impingement losses by Dr. Gammon (June 1973)
indicate that impingement of juvenile fish (too large to be
entrained) could be severe. Dr. Gammon described the intake as
follows:
"On numerous occasions during the summer, fall and winter, dead
fish were found in the vicinity of the skimmer chute. Large as
well as smaller fish apparently passed through the coarse screens,
were carried out of the cooling water on moving vertical screens,
and washed off into the chute, which for some unknown reason was
constructed so that it ended 20 feet from the river's edge. The
chute is currently being lengthened, but it is not known if this
will lead to a decrease in mortality or not. Since similar
problems were never observed at the Wabash Station, the location
and engineering of the Cayuga intake structure seem to be
responsible for the attraction of fish and their subsequent
impingement. The intake is located very near the head of a large
riffle area, a habitat which has been shown to harbor the densest
populations of fish. The single intake is a short, narrow canal
where the water velocity was frequently between 0.75 and 1.00
meters/sec. Thus, the location of the intake was near
concentrations of fish to begin with and may have naturally
attracted those fish by creating a fast current. Essentially, the
intake structure at Cayuga is a small duplication by man of the
fast chute near the island in zone VII. It may have attracted
river fish and ultimately acted as a fish trap."
It is our opinion that simply lengthening the screen backwash
cute will not resolve this problem. Because of the nature of
screen impingement - exhaustion of the fish prior to impingement,
physical abrasion which removes scales and slime, high velocity
screen wash devices etc. - it is our opinion that most if not all
fish will be dead on the screens or die upon return to the river.
In addition, delayed mortality may occur from several hours to
several days later.(()) At the intake velocities reported by
Gammon (June 1973) 0.75 to 1.0 meters/sec., impingement losses of
young fish could be very severe. Mortality would, we believe,
approach 100%. Further, these losses would probably not cease at
the end of August. Impingement studies for power plants on the
Illinios River have shown losses in August and September of
several hundred fish a day including freshwater drum, crappie,
emerald shiners, and gizzard shad. Most of these losses occur in
the 0-5 inch length range. Thus, the estimates of losses of
entrained eggs and larvae would be only a part of the total fish
losses expected at the Cayuga intake. Losses could be especially
severe if low flows occurred during September.
4. On page 14-4 it is stated that "Estimates of the losses of
ichthyoplankton due to entrainment at other power plants located
on the Wabash River below the Cayuga station are listed in Table
14-1." The only stations shown on Table 14-1 are Cayuga and
Wabash. No mention or estimates are made of losses for the Breed
or Hutsonville plants.
5. We concur with the statement on page 14-5 that the 32.7%
inner-plant mortality reported by King is probably too low. As
stated, Mancini took samples very close to the discharge pipe, and
delayed mortalities due to extended exposure to elevated plume
temperatures must also be considered. Losses at the Cayuga
station are expected to be severe due to the long discharge canal
and resultant time exposures. We note, in addition, that
chlorination also kills entrained eggs and larvae and thus for the
period of chlorination (1 1/2 hours each day for each unit at
Cayuga; 60 minutes for each of four segments at Wabash) 100% of
the eggs and larvae may be killed. In addition, it can be
expected that some percentage of eggs and larvae not passing
through the condensers but entrained into the thermal plume will
also experience mortality.
For the reasons noted above we believe that the estimates of
egg and larval losses by Mancini are low. These losses, as we
noted earlier, are further compounded by losses of impinged fish
of all sizes including adults. When all facts are considered we
cannot agree that the impact of the intakes at the Cayuga and
Wabash stations is insignificant.
6. On page 14-7 of the response to EPA comments the following
statement is made:
"Whatever impact entrainment cropping may have had on the total
fish community has not been reflected in Gammon's data concerning
studies on fish populations during the last seven years."
We note that the Cayuga Units went on line in October 1970 and May
1972, therefore, seven years of data on the combined impact of Wabash
and Cayuga station operation do not exist. Further, at the Wabash
station where the impact of plant operations has been exerted for the
longest periods,(()) Gammon reports that the populations of some species
of fish appear to be permanently reduced.
In view of the discussion above of the intake and our overriding
concerns with the thermal effects of these stations it is our opinion
that further studies of the intake would be unproductive except as
indicated below.
In summary it is the position of this Agency that the alternative
thermal limitations which you have requested, current plant operation,
are not warranted at these sites.
Our examination of your data indicates that the following conditions
for operation of the Cayuga and Wabash Generating stations are
appropriate:
I. The Cayuga Generating station thermal discharge shall be
controlled as follows:
A. For the period June through October
There shall be no discharge of heat from the main condensers
except heat may be discharged in blowdown from a recirculating
cooling water system provided the blowdown temperature does not
exceed the lowest temperature of recirculating cooling water prior
to the addition of make-up water.
B. For the period November through May
1) The instantaneous monthly maximum river temperatures listed
below shall be met based on the following formula:
cooling water flow X Plant (Monthly - Upstream)
total river flow T (Maximum Temperature)
........... November . 70
........... December . 57
........... January .. 50
........... February . 50
........... March .... 60
........... April .... 70
........... May ...... 80
2) The maximum river temperature rise above natural shall not
exceed 5 F based on the following formula:
cooling water flow X Plant 5 F
total river flow T(())
C. During those periods of the year when any part of the
system is operated less than in a closed cycle recirculating mode
an intake monitoring study shall be performed for at least one
year commencing with operation of the station as described in
paragraphs B.1 and B.2 above.
II. The Wabash River Generating station thermal discharge
shall be controlled as follows:
A. For the period June through October
1) The mixing zone shall be limited to no more than 25% of the
cross-sectional area and/or volume of flow of the stream, leaving
at least 75% of the stream free as a zone of passage for aquatic
organisms. In addition the mixing zone shall not extend over more
than 50% of the width of the stream.
2) The following instantaneous monthly maximum temperatures
shall be met at the edge of the mixing zone described in paragraph
1, above:
........... June ........ 90
........... July ........ 90
........... August ...... 90
........... September ... 90
........... October ..... 78
B. For the period November through May
1) The instantaneous monthly maximum river temperatures listed
below shall be met based on the following formula:
cooling water flow X Plant (Monthly - Upstream )
total river flow T (Maximum Temperature)
........... November .... 70
........... December .... 57
........... January ..... 50
........... February .... 50
........... March ....... 60
........... April ....... 70
........... May ......... 80
(())
2) The maximum river temperature rise above natural shall not
exceed 5 F based on the following formula:
cooling water flow X Plant 5 F
total river flow T
C. During those periods of the year when any part of the
system is operated less than in a closed-cycle recirculating mode,
an intake monitoring study shall be performed. The study shall be
performed for at least one year commencing with operation of the
station as described in the paragraphs above.
A second year of intake monitoring may be necessary at both of these
stations if it is determined that the data collected for one year is
inadequate to characterize the probably impact of these intakes on fish
species and populations found at these sites.
A schedule for implementing the alternative thermal limitations
proposed above will be developed in conjunction with the company and the
Indiana Stream Pollution Control Board prior to issuance of a final
316(a) determination.
If in response to the concerns expressed above PSI undertakes major
modifications to either station short of total closed-cycle cooling, and
if it is later determined that the intakes still do not meet the test of
316(b), the burden will be on PSI to redraft or otherwise modify its
operations to comport with 316(b).
This letter constitutes the determination of Region V to deny the
316(a) alternative thermal limitations requested by PSI for the Cayuga
and Wabash facilities and to impose, instead, the alternative thermal
limitations specified above. This determination will be public noticed
along with the other issues raised for adjudicatory hearing with respect
to the permits for these two facilities. If you have any questions
concerning this matter, please contact Gary Milburn at (312) 353-1472 or
Gail Ginsberg at (312) 353-1479.
Very truly yours,
James O. McDonald, Director
Enforcement Division
cc: Oral H. Hert, Technical Secretary
Indiana Stream Pollution Control Board.(())
REFERENCES
"Distributional Ecology and Behavioral Thermoregulation of Fishes in
Realtion to Heated Effluent from a Power Plant at Lake Monona,
Wisconsin" by William H. Neill and John J. Magnuson presented in
Transactions of the American Fisheries Society, October 1974, Volume
103, Number 4
"Temperature Selection By Fish - A Factor in Power Plant Impact
Assessments" by Charles C. Coutant presented at the Symposium on the
Physical and Biological Effects on the Environment of Cooling Systems
and Thermal Discharges at Nuclear Power Stations, Oslo, August 26-30,
1974.
"Responses of Bass to Natural and Artificial Temperature Regimes" by
Charles C. Coutant, presented at the National Symposium on the Biology
and Management of Centrarchid Basses, Tulsa, Oklahoma, February 3-6,
1975.
HRG COR
770421 740920
THOMAS P. GALLAGHER
DIRECTOR, HFIC, DENVER, ENVIRONMENTAL PROTECTION AGENCY, OFFICE OF
ENFORCEMENT
DIRECTOR, ENFORCEMENT DIVISION, REGION V, EPA, CHICAGO
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, TRANSMITTAL OF REVIEW REPORT BIOLOGICAL EFFECTS OF THERMAL IMPUT
IN THE WHITE AND WABASH RIVERS, INDIANA (PP 586 TO 587) 2 MEMOS GROUPED
--
--
95-217
--
CW261988 CW261989
05773
(())
ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF ENFORCEMENT
NATIONAL FIELD INVESTIGATIONS CENTER-DENVER
BUILDING 53, BOX 25297, DENVER LIBERAL CENTER
DENVER, C0LORADO 30225
September 20, 1974
TO: Director, Enforcement Division
Region V, EPA, Chicago
FROM: Director, NFIC - Denver
SUBJECT: Transmittal of Review Report Ecological Effects of Thermal
Inpute in the White and Wabash Rivers, Indiana
Please find enclosed a copy of the subject report. The format we
have used in discussing the information available on thermal effects in
the White and Wabash Rivers has been to propose a likely industry
position, which will be deduced from the data, and then to suggest a
probably EPA response.
The overall conclusion of this report is that the industry cannot
demonstrate that no harm will occur to representative species in the
White and Wabash Rivers, and that numerous violations of water quality
standards and mixing zone requirements can be demonstrated. I strongly
suggest that the burden of proof in any adjudicatory hearing be left
with the industry and that EPA should not try, on its own initiative, to
prove that damage to representative species has occurred. We suggest
such a course for two reasons: 1) It is not necessary under the
variance guidelines; and 2) it will lead to an inevitable quagmire of
contending experts, large-scale investigations, and long delays until a
decision is made. If you want an idea of just what happens when such an
approach is taken, I suggest that the record of Florida Power and Light
and Houston Light and Power cases be examined.
Naturally, our people are available at any time for participation in
hearings and in any additional support of the Region's position.
Thomas P. Gallagher
Encl (a/s)
cc: Al Manzardo, Chief, Permits Br., Reg. V (w/encl)
Gary Milburn, Permits Br., Reg. V (w/encl)
Mr. Dick Brown, Legal Br, Enf Div. (w/encl)(())
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION V
SUBJECT: Meeting on October 30, 1974 with Public Service
of Indiana and EPA to Discuss 316(a) Demonstration for
Cayuga and Wabash Power Plants
FROM: Gary Milburn
Technical Coordination Section
TO: Files
........... Attendees:
.. Gary Milburn ......... U.S. EPA
.. Dean Loomis .......... U.S. EPA
.. Robert Christian ..... Public Service Indiana
.. Sy Ali ............... Public Service Indiana
.. Paul V. Morgan ....... NUS CORPORATION
.. Barton C. March, Jr. . NUS CORPORATION
.. Bradford B. Owen, Jr. NUS CORPORATION
.. Vacys Saulys ......... U.S. EPA
This meeting concerned 316(a) demonstrations for Cayuga and
Wabash generating stations of PSI. They will attempt a type 1
demonstration, and we went through 316(a) technical manual point
by point, indicating what we though should be in it. We also gave
them a copy of the revised 316(a) manual (September 30, 1974).
NUS has been working for PSI for only one week on 316(a). NUS
called me on November 1 and asked if PSI would be better off with
a type 2 demonstration and perhaps a year more of study to fill in
the holes. I said that either way we would look closely at
certain types of information (mainly Gammon's work); therefore,
the use of type 1 or 2 makes little difference. We would not
allow time for additional studies. They've had seven years --
that's enough.
Gary Milburn
cc: V. Saulys
HRG COR GRA OTH
770421 999999
TEXAS WATER QUALITY BOARD
--
SUBCOMMITTEE ON INVESTIGATIONS AND REVIEW HOUSE COMMITTEE ON PUBLIC
WORKS AND TRANSPORTATION
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, STATEMENT AND COVER LETTER FROM TEXAS WATER QUALITY BOARD (PP 588
TO 594)
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CW261990 CW261996
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(())
TEXAS WATER QUALITY BOARD
1700 North Congress
Stephen F. Austin Building
Box 13246 Capitol Station
Austin, Texas 78711 Phone (512) 475-2651
J Douglas Toole
Chairman
Frank H Lewis
Vice Chairman
M F Forest
Fratis L Duff, MD
Clayton T Garrison
James M Rose
Mack Wallace
Hugh C Yantis, Jr
Executive Director
April 15, 1977
Re: Public Hearings on Steam Electric Power Generating
Industry
The Honorable Ronald "Bo" Ginn, Chairman
Subcommittee on Investigations and Review
of the House Committee on Public Works
and Transportation
508 Cannon House Office Building
Washington, D,C, 20515
Dear Congressman Ginn:
We appreciate the opportunity to present the views of the Texas Water
Quality Board to the Congress on this important subject and in this
regard we would like to file with the Investigations and Review
Subcommittee of the House Committee on Public Works and Transportation
the attached statement in connection with the public hearings scheduled
to be held on April 19-20-21, 1977 pertaining to the electrical power
generating industry.
Very truly yours,
Hugh C. Yantis, Jr.
Executive Director
Attachment
ccs: Governor Dolph Briscoe
Texas Congressional Delegation
All Texas Water Quality Board Members(())
STATEMENT
TO
SUBCOMMITTEE ON INVESTIGATIONS AND REVIEW
OF THE
HOUSE PUBLIC WORKS AND TRANSPORTATION COMMITTEE
We appreciate the opportunity to furnish comments to this
Subcommittee on Investigations and Review of the Public Works and
Transportation Committee regarding the impact of the Federal Water
Pollution Control Act Amendments of 1972 on the electrical power
generating industry.
The Texas Water Quality Board has persistently objected to proposed
regulations by the federal government that do not take into
consideration the water-short situation that exists in Texas. As you
know, we feel so strongly about this issue that we joined in the
litigation against the Environmental Protection Agency to obtain relief.
The decision of the Fourth U.S. Circuit Court has now been issued and
the Court was most favorable to the State of Texas on this issue and
remanded the proposed regulations back to the EPA for restudy and
further consideration of the total impact of any subsequent regulations
which it may issue, particularly with reference to water usage and its
effect on the more arid regions of the Nation when the regulations are
re-issued.
The importance of this decision comes into focus when you realize
that if the original steam power plant project proposed for the(())
Cedar Bayou plant near Houston had become a reality and all six
generating units had been installed with cooling towers instead of a
plant with a cooling pond and only three generating units, they would
have evaporated each day one-half as much freshwater as the City of
Dallas now uses for thier domestic water supply, and in addition the
increased energy requirement associated with the cooling tower
operations would have consumed the equivalent electrical energy
requirements of a community of about 60,000 people.
We are now concerned about other requirements in FWPCA which directly
effect the electrical power generating industry. As you are aware,
Congress specifically identified steam electric power plants as existing
and potential sources of pollution, based on the inclusion of "heat" in
the definition of pollutant.
Thermal discharges from power plants are therefore effected by the
two important elements of the FWPCA. First, water quality standards
have been established which specify limits on temperature. This becomes
crucial when analyzed in terms of non-degradation provisions contained
in most stream standards. If the power plant uses as a cooling source a
body of water for which standards have been set, the temperature
standard may prevent the construction and operation of the plant or may
require the use of cooling towers or other forms of closed-cycle cooling
which, if used extensively, will severely impact the water resources in
states like Texas. In the future with projected water shortages in
states like Texas, this(()) impact on water resources may prohibit the
use of water-consumptive closed-cycle cooling facilites. The electrical
power generating industry would be in an untenable position unable to
use segmented streams because of stream standards and unable to use off
channel cooling facilities because of water consumption. Thus no power
plant could be constructed.
The second impact, although related to the first, is the requirement
for a federal permit authorizing the thermal discharge and specifying
effluent limitations. This permit process may substantially increase
the lead time required for the construction of a power plant. Any time
constraints are dependent upon the guidelines to be reissued by EPA for
discharges from existing and new power plants. Such guidelines may
require in numerous instances the use of variance provisions of Section
316(a). The burden of proff and necessary surveys and studies requires
a substantial investment in time and money and will slow down
construction and operation of energy generation capacity.
Congress should also re-examine Section 316(a). Although this
provision was intended to provide relief to the electrical power
generating industry from the impacts of thermal discharge limitations,
this section has developed into a potential trap. As was argued in the
State of Texas law suit against EPA, Section 316(a) is not responsive to
such factors as water or energy consumption. This section is intended
to protect fish and wildlife and not to balance water or energy
consumption factors in the decision to grant a variance.(())
The final issue concerns energy costs. Although recognizing that
under certain circumstances thermal discharges adversely impact water
quality and aquatic life, most facilities required for the abatement or
elimination of thermal discharges will be energy consumptive. FWPCA
should be amended or construed through regulation to provide flexibility
which recognizes that some thermal discharges may be a small price to
pay and even be beneficial to aquatic life. It has been the experience
in Texas, that many thermal discharges have little or no adverse impact
on water quality or fish and wildlife. In fact, the contrary appears to
be the case. Some of the best fishing and nursery grounds in the State
occur downstream from thermal discharges. This is evidenced further by
an article in the April, 1977 issue of the Outdoor Life in which it is
pointed out that one of the "9 up-and-coming lakes" discussed is a Texas
Lake which is recommended highly because it is expected to become a
cooling lake and the bass fishing will be greatly enhanced.(())
9
UP-AND-COMING LAKES
GRAPHIC OMITTED
OUTDOOR LIFE reports on
the lakes where bass fishing
is due to crest soon.
Plus tips to help you find
other hotspots near you.
It's no secret to most bass fishermen that new lakes, and sometimes
old ones, too, have boom cycles, and when they do it is far easier than
usual to take limits of fish from them.
What's a boom cycle? What causes it? And how can you figure when a
lake near where you live is going to boom?
The answers to those questions are not easy to come by. As proof of
that, note on the following pages the lakes OUTDOOR LIFE has chosen as
up-and-comers. A wide variety of waters is represented, and just as
wide a variety of factors is responsible for the good fishing they
promise to provide this spring and summer.
If you don't live near any of these lakes, consider the facts
reported about them as clues that can help you to find a boom lake
closer to your home. To help you even more here's a step-by-step plan
for zeroing in on boom bass fishing +++
Get out your maps and jot down the name of each lake within the range
you'd normally travel to fish. The first thing you'll want to know is
the age of each of these lakes. If one or two of the lakes are only a
few years old, you're
continued on page 72
MARTIN CREEK LAKE --
When Martin Creek Lake in Texas opened to boat fisherman on June 25,
1976, 356 anglers got their boats on the water before Parks and Wildlife
personnel closed the lake because of an overcrowded parking lot.
According to a lakeside survey that day, those 356 anglers took 1,146
bass weighing a total of 1,572 pounds. Nearly 20 percent took limits of
10 fish each. Two two-man limits (20 fish) came in that weighed 54 and
66 pounds respectively.
Such statistics would have been considered spectacular in many parts
of the nation. But Texas anglers have been somewhat spoiled by easy
limits, so many were disappointed. That initial disappointment plus the
fact that fishing success declined rapidly after opening day led to
rumors that Martin Creek Lake was a loser.
When fishing pressure let up, however, this pine-bordered lake began
producing good catches for knowledgeable fishermen Eddie Marberry, a
professional bass guide from Tyler, Texas, has this to say about Martin
Creek: "I believe the lake will be as good a big-bass lake as Murval
(Lake Murval, less than 20 miles from Martin Creek, is noted for
producing bass weighing six to 10 pounds.) One client and I took 20 bass
here that together weighed 58 pounds. They were culled from 150 bass we
caught in a single spot. Martin Creek is a good lake. I'm sure of
that. Some folk just don't know how to fish it correctly."
Jack Crabtree, regional fisheries management supervisor for the Parks
and Wildlife Department, is more positive: "Martin Creek has to
potential to be a truly outstanding bass lake. It has lots of in-lake
timber, structure, a long highly irregular shoreline, and is in an area
known for the production of trophy bass. This, coupled with the
stocking of 365,000 Florida bass, should provide exceptional fishing
soon."
Another plus for Martin Creek is that it will soon be a "hot-hole"
lake. Built by the Texas Utilities Company, Martin Creek is destined to
be the source of coolant water for a lignite-fired electrical generating
plant. The hot water from the plant is to be returned to the
5,500-surface-acre lake in a two-stage cooling process. Previous
experience with this type of hot-water return has shown that the "hot
hole" where water enters a lake offers fantastic winter fishing for
bass. One unit of the Martin Creek plant is to be activated this year.
So far, spinners, plastic worms, and medium-depth lures have been
best on Martin Creek. Since the maximum depth is about 40 feet, and
there is a(())
GRAPHIC OMITTED
plethora of bottom structure, fish are relatively easy to find on Martin
Creek. A depth-sounder still helps. Bottom-bumping with lures pays off
in water 15 to 17 feet deep.
The lake is 140 miles southeast of Dallas and four miles west of the
small town of Tatum on Highway 43. A state park at lakeside should be
in operation this spring. Ramps are available for launghing boats, and
nearby trailer camps offer camping and travel-trailer hookups. Small
johnboats can be rented at the lakeside marina. Martin Creek is open
year round. -- Al Eason.
HRG
770420
BO GINN
CHAIRMAN, SUBCOMMITTEE ON INVESTIGATIONS AND REVIEW HOUSE COMMITTEE ON
PUBLIC WORKS AND TRANSPORTATION
--
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, PROCEEDINGS OF APRIL 20, 1977 (P. 307)
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--
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CW270001 CW270001
05775
(())
IMPLEMENTATION OF THE FEDERAL WATER
POLLUTION CONTROL ACT
(Thermal Pollution and Other Water Impacts From Steam
Electric Power Generation)
WEDNESDAY, APRIL 20, 1977
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON INVESTIGATIONS AND REVIEW, OF THE COMMITTEE ON PUBLIC
WORKS AND TRANSPORTATION,
WASHINGTON, D.C,
The Subcommittee met, pursuant to notice, at 9:35 a.m., in room 2167
Rayburn House Office Building, Hon. Bo Ginn (chairman of the
subcommittee) presiding.
Mr. GINN. The Subcommittee on Investigations and Review will come to
order.
We are resuming hearings this morning on Public Law 92-500, the
Federal Water Pollution Control Act, concerning thermal pollution and
other water impacts from steam electric power generation.
Our first witness this morning is Mr. Philip J. Mause, Esq.,
representing the Environmental Defense Fund, Washington, D.C. Mr.
Mause, if you will please stand I will administer the oath to you.
Do you solemnly swear the testimony you will give to the subcommittee
will be the truth, the whole truth, and nothing but the truth, so help
you God?
Mr. MAUSE. I do.
Mr. GINN. Mr. Mause, we are delighted to have you here. We welcome
you as a spokesman for the Environmental Defense Fund. Please feel free
to proceed as you desire.
HRG
770420
PHILIP J. MAUSE
ENVIRONMENTAL DEFENSE FUND
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, TESTIMONY OF PHILP J. MAUSE, ESQ., ENVIRONMENTAL DEFENSE FUND,
WASHINGTON, D. C. (PP 307 TO 326)
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TESTIMONY OF PHILIP J. MAUSE, ESQ., ENVIRONMENTAL DEFENSE FUND,
WASHINGTON, D.C.
Mr. MAUSE. Thank you, Mr. Chairman. I appreciate the opportunity to
testify concerning the future role of energy and especially electricity
and the possibilities for the more efficient utilization of the waste
heat produced in the generation of electricity.
By way of background, the Environmental Defense Fund has devoted
substantial resources to analyzing the demand side of the energy problem
and trying to affect public policy in this area. We very early realized
that a sensible national energy policy which protected environmental
values would have to involve careful attention to growth of energy
demand.(())
For this reason, we have intervened in a number of State utility rate
cases, advocating the adoption of the principles of marginal cost
pricing -- in the form of peak-load pricing -- for electric utilities.
Although there was, at first, substantial resistance to our arguments, I
think it is fair to say that peak-load pricing for electric utilities
has now become part of the conventional wisdom among energy experts.
We have also appeared before the Federal Power Commission and Federal
Energy Administration, urging the incremental pricing of expensive
natural gas supplements. EDF witnesses have appeared before a number of
congressional committees and state regulatory bodies urging that energy
pricing be designed with the objective of economic efficiency-and that
therefore prices reflect, as accurately as possible, the marginal cost
of new energy supplies.
In the course of these activities, we have become involed at the
State level in the analysis of the growth plans of a number of electric
utilities. It has become increasingly evident to us that the continued
growth of electric utility generating capacity at historic rates
presents not only environmental problems -- but also creates the
potential for financial difficulties for many utilites, dilution of
shareholder equity, increased rates for the consumers of electricity,
and, in some cases, the danger of excess capacity.
This is due to the fact that new electrical generating capacity is
substantially more expensive that existing capacity and, therefore,
growth in the demand for electricity is more costly than current prices
indicate.
These difficulties inherent in the rapid expansion of electric
utility generating capacity are outlined in a recent paper prepared by
an economist on EDF's staff and presented before the California Public
Utilities Commission. This paper illustrates some of the dangers
inherent in a rapid expansion scenario in the electric utility sector.
It is important to note that these are dangers that affect not only
environmentalists, but also consumers, shareholders, and the financial
community.
I will focus briefly today on two areas:
The projections of growth in demand for electricity; and,
opportunities for the constructive use of the waste heat produced in
electrical generation.
In recent years, the projection of electric utility demand growth has
become an increasingly complex process. Up until around 1973, the
practice often was to project growth based largely upon past trends. In
recent years, however, this type of projection has become increasingly
useless.
An illustration of the revision of previous projections is provided
by the analysis performed by the Federal Energy Administration. When
"Project Independence" was first published in November 1974, it included
a projection of electric utility generation capacity at the level of 922
gigawatts in 1985, of which 204 gigawatts were nuclear.
By February 1976, when the "National Energy Outlook" was published by
the Federal Energy Administration, this projection has been revised
downward to 785 gigawatss, of which 142 gigawatts were nuclear. The
latest "national Energy Outlook," released for comment in February 1977,
contained a projection of 700 gigawatts, of which 126 gigawatts were
nuclear.(())
Mr. CLEVELAND. Mr. Chairman, excuse me for interruption, but what is
a gigawatt?
Mr. MAUSE. A gigawatt is 1,000 megawatts. A megawatt is 1,000
kilowatts. A kilowatt is, 1000 watts and may be expressed with a time
factor as well, such as kilowatt-hour.
To give a financial perspective, the addition of a kilowatt of
capacity now often costs between $800 and $1,100.
Other recent analyses of the future contain even lower projections.
I refer, for example", to Von Hippel and Williams, "Nuclear Energy
Growth Projections, testimony presented to the U.S. Nuclear Regulatory
Commission on the matter of the generic environmental statement on mixed
oxide fuels, March 4, 1977.
On a local level, EDF has participated in a case in which we
criticized the Atomic Energy Commission s estimate, in a draft
environmental impact statement, issued in May 1974, that Potomac
Electric Power Co. would require 10,025 megawatts of capacity by 1984.
By the time the final statement was issued in March 1976, this
estimate had been lowered by the Nuclear Regulatory Commission to 6,561
megawatts. This reduction in the 1984 projection is almost equal to the
capacity necessary to meet and serve, without reserve margin, PEPCO's
entire 1976 peakload.
It is my understanding that the 1984 projection has recently been
lowered further.
There are a number of reasons for these downward revisions in demand
growth projections. At the outset, it is important to recognize that
the level and extent of demand growth is not something outside our
control. It occurs because of an almost infinite number of consumer and
business decisions -- decisions about how efficient an airconditioner to
buy, decisions about whether to insulate, decisions by businessmen about
the type of electric motor to buy, or whether to invest in energy-saving
equipment. These decision can, of course, be affected by government
action in two ways: (1) The Government set standards which affect these
decisions: and (2) the Government can take action with respect to the
price of electricity which is likely to affect how people make tradeoffs
between the use of somewhat more electricity and investments in energy
conservation.
Thus, any attempt to project demand growth for electricity must
assume a set of government policies-or the absence of such policies.
Demand growth is not like the tide. It is a series of decisions made by
human beings, and these decisions are amenable to influence by
intelligent government policy, especially pricing policy, aimed at
affecting these decisions.
I would like to list briefly some of the factors which I believe have
resulted, and will probably continue to result, in downward revision of
previous demand growth forecasts.
One: Decreasing population growth. Although I cannot go into this
in detail, it has become clear that the high level of population growth
this country experienced through the fifties and sixties is leveling off
as the birth rate declines. A more complete explanation and
quantification of this factor can be found in material that can be
provided the subcommittee.(())
Two: Appliance saturation. The greatest uses of electricity in the
household are for space heating and cooling, water heating, and food
heating and cooling. With respect to all of these heating and cooling
uses, there is considerable saturation among American households.
During the period in which the market was becoming saturated with these
uses of electricity, there was rapid demand growth as more and more
consumers added new appliances. Now that a high level of saturation has
occurred, there is likely to be slower growth -- or perhaps negative
growth -- in the per household use of electricity.
Some of these uses of electricity, for example, water heating,
promise to be replaced by solar power; indeed, this replacement is
already in the process of taking place in some parts of the country.
With respect to others -- space heating, space cooling, food heating,
and food cooling -- there is enormous opportunity for improvement in
efficiency of end use.
Microwave ovens, heat pumps, and more efficient air-conditioners and
refrigerators can all replace existing appliances and result in a lower
use of electricity with the same consumer end-use amenity.
It is true that there may be new uses of electricity in the household
which will lead to an increase in demand. But it is unlikely that new
equipment, which is likely to be of a high-technology, electronic
nature, will be nearly as energy intensive as the heating and cooling
equipment which was installed between 1946 and 1975.
Three: A third factor is the shift in our economic production to a
heavier proportion of services and a lower proportion of
energy-intensive goods. This tends to make the ratio of energy
consumption to gross national product lower, as a greater and greater
proportion of the gross national product occurs in sections of the
economy which are not very energy intensive.
Four: I have saved the most important factor for last. It is price.
The real price of electricity declined dramatically between the end of
World War II and 1973. Up until 1969, applications for rate reductions
by electric utilities outnumbered applications for rate increases. And
even after the precipitous price increases which have occurred around
the country since 1973, the real price -- adjusted for inflation -- of
electricity is still lower in most parts of the country than it was in
1950.
It is not surprising that there was rapid growth in demand during the
years of price decreases. Unfortunately, those years are gone, at least
for the forseeable future. New generating capacity, new sources of
fuel, and often even new transmission facilities, are more expensive
than the old embedded capacity upon which current utility rates are
based.
This means that the faster we expand into new capacity, the faster we
will experience rate increases. It is very important to understand the
dynamic relationship between price and growth. In the past this
relationship took the form of a mutually reinforcing spiral. As growth
increased, more efficient generating equipment was added, load factors
improved, economies of scale were realized with respect to transmission
and distributionand, thus, the cost per unit of electricity declined.
These cost declines led to price reductions. The price reductions,
in turn, stimulated more growth in consumption. The recent past, and
the foreseeable future, are characterized by the opposite
relationship.(()) Growth has generally, although not invariably, reduced
load factors, and has required the addition of expensive, new generating
equipment.
This means that in the long run, the faster we grow, the higher costs
-- and, therefore, prices -- per unit must rise. Higher prices dampen
further growth. Thus, the self-reinforcing spiral of growth and price
decline has been replaced by a self-correcting relationship between
prices and growth. A spurt in growth will lead to rate increases, and
these increases will tend to dampen demand.
Thus, it is very difficult to predict the future based on observed
growth patterms from the past. I must stress that I am speaking in very
general terms, based on experience in a number or states. There may be
places in the country in which these trends are not as drastic as my
remarks indicate, or in which rates have already climed to the level
that the addition of new capacity is unlikely to drive them up very much
higher.
But, as a general rule, growth is expensive -- and appears to be
getting even more expensive. Thus, unless the Government proposes to
subsidize electric consumption out of general revenue, the trend in
electric prices will be upwhard.
Price increases have a number of effects. In the short term, they
tend to reduce use of existing equipment. But the far more important
trend is the long-term trend. Higher prices for electricity -- and
expecially the realization that prices will be getting higher in the
future -- lead to the purchase of more energy-efficient equipment, the
adoption of conservation strategies, and a wave of technological
innovation in improvements in the end-use efficiency of electricity.
All of these long-term trends tend to reduce the total consumption of
electricity, while at the same time maintaining existing end-use
amenities.
Is is very difficult to quantify precisely the impact of these
long-term trends. This is because our statistical information comes
from a period of time in which price trends were downward, and the
production of reliable estimates for future of increasing prices, on the
basis of the statistical evidence we have, is difficult. But there are
certain facts which can be analyzed, and can give us a rough outline of
the potential for more efficient end use of electricity.
Recently, a good deal of work has been done in comparing the United
States to countries which have roughly comparable economic
circumstances-gross national product per capita and average income.
Comparisons with Sweden and West Germany indicate that these economies
are able to produce roughly the same level of economic activity per
captia at a much lower-roughly two-thirds-per capita consumption of
energy. Further analysis indicates that a large portion of this
difference is attributable to greater end-use efficiency in the
consumption of energy, both in households and business establishments.
It also appears that greater efficiency is closely related to price:
those sources of energy priced inexpensively in Sweden are not used with
a high level of efficiency.
There are a number of other developments which are relevant to future
projections of electricity consumption but all of which are difficult to
work into a quantified model, in the absence of knowledge about
government policy. These are technological innovations which promise to
save enormous amounts of electricity but which will be(()) economic and
environmental advantages. Cogeneration is essentially policy.
Is it impossible to determine the degree to which these innovations
will be implemented without knowing what government policy will be. It
is very important for this committee to be aware of these opportunities,
and to realize that if they are widely implemented pursuant to an
aggressive national effort at energy conservation, existing load-growth
projections will probably become obsolete. Let me list some of the
technological innovations I am referring to.
One: The Litek light bulb, being developed by ERDA, which uses 70
percent less energy than the conventional incandescent light bulb for
the same illumination:
Two: The new Alcoa process for making aluminum which reduces energy
consumption per pound of aluminum from 8.2 kw to 5 kw;
Three: The annual cycle energy system, which reduces the combined
energy requirements fro heating, cooling, and water heating in
all-electric home by 70 to 75 percent;
Four: Color television recently marketed by RCA which reduce
electricity consumption substantially in comparison with earlier models;
Five: The Washington Natural Gas Co. in Seattle claims gas savings
of over 50 percent in existing homes where it has installed attic and
sidewall insulation and automatic night turnback thermostats and
eliminated furnace pilot lights;
Six: At Oak Ridge National Laboratory, engineers for Union Carbide
Corp. have cut electricity use in a 25-year-old office building by
nearly 65 percent through low-cost changes, such as improved insulation,
and reduced lighting, and ventilation;
Seven: A new GSA office building in Manchester, N.H., and the
headquarters building for Ontario Hydro in Toronto will use only 55,000
Btu's per square foot versus the 100,000 to 200,000 Btu's per square
foot commonly used in modern office buildings;
Eight: Amana's energy-saving, frost-free refrigerator uses only
one-half the energy of its standard frost-free model.
It is ironic that the waste heat produced in the generation of
electricity is viewed as a problem at the same time the Nation is
agonizing over long-term energy shortages. This waste heat is, after
all, energy; and, there are technologies for utilizing it
constructively.
It is not surprising that an environmental problem can be turned into
a resource opportunity. Opportunities in this area exist also with
respect to sludge, crankcase oil, aluminum beverage containers, and
solid waste.
Whether waste heat will continue to be part of the energy problem or
will become part of the energy solution depends upon the selection of
technology and the Government policies which steer development in the
direction of one technology rather than another.
There are two well-known technologies for utilizing waste heat and,
therefore, simultaneously benefitting the environment and the energy
supply outlook -- congeneration and district heating.
Although I have neither the time nor the technical background to
present a comprehensive analysis of the potential for the utilization of
congeneration in the American energy economy, a number of studies have
been done which indicate that it could be implemented with both(())
economic and environmental advantages. Cogeneration is essentially the
production of electricity at or near an industrial site so that the
waste heat from the production of electricity can be used for industrial
process steam. It is widely employed in Europe, has economic as well as
environmental advantages --
Mr. CLEVELAND. Excuse me --
Mr. GINN. I think I have the same question. I think the witness was
in the process of explaining cogeneration.
Mr. CLEVELAND. Yes; I was going to ask him what cogeneration was.
Mr. GINN. Would you explain that?
Mr. MAUSE. I must say my explanation must be viewed in the light
that I am a lawyer and not an engineer. Perhaps I can supplement my
remarks with a more complete analysis and explanation, but I will
explain to the best of my ability.
Cogeneration is essentially the production of electricity at or near
an industrial site so that the waste heat from the production of
electricity can be used for industrial process steam. It is widely
employed in Europe, has economic as well as environmental advantages,
and has been identified as a viable and major new source of electric
capacity in analyses of several utilities future growth patterns.
Because of the institutional strictures and regulatory rules which
have grown up in a period of cheap energy generated by central power
stations of electric utilities, there are barriers to cogeneration which
must be overcome. Once again, it is impossible to know the proportion
of new facilities which will be of the cogeneration type without knowing
whether there will be the Government leadership to overcome these
institutional barriers.
Parenthetically, one recent study indicates we could have by the year
2000 roughly 5.2 quadrillion Btu's of input into the electrical
generation process through cogeneration facilities.
I think it is increasingly likely -- at both the State and Federal
levels -- that we will have the kind of leadership that will enable us
to overcome these institutional barriers and to implement the technology
which promises both environmental and economic benefits.
There are other constructive uses of the waste heat produced in
electrical generation. In Sweden, the concept of district heating --
the use of the waste heat from electrical generation to produce
residential and commercial space heating -- has been implemented. One
major city of 120,000 people, Vasteras, heats 90 percent of its
residences with water heated by the waste heat produced in the
electrical power station which serves the area. Heating costs are
generally lower than in traditional heating systems.
The future need not be like the past and even in the absence of any
aggressive energy conservation policy will not be like the past. The
past was, in a sense, extraordinary. Real prices of electricity went
down very, very rapidly. It is simply foolish to project that the
future will be a mirror image of the past.
There is no technological logjam preventing us from saving enormous
amounts of electricity. The technologies exist for saving, and using
more efficiently, the expensive electricity we are now consuming. Many
of these technologies are off-the-shelf. A number of them make economic
sense even at current prices of electricity. The energy(())
conservation issue is thus not a technological problem, it is a
political and institutional problem. If the political and institutional
will to implement energy conservation exists, then the growth in demand
for electricity is largely under our own control. We are not at the
mercy of inevitiable trends over which we have no power; indeed, the
means are in our very hands substantially to change past trends in load
growth. The only question is whether we have the will to use them.
The waste heat produced in electricity -- like so many other things
on our planet -- can be a benefit or a cost depending upon how wise we
are in its use. As long as utilities are able to discharge it into the
environment without paying the true social cost of the discharge, the
the incentive wisely to use waste heat is reduced.
It is important to note that even under the current system, in which
utilities pay no price at all for the environmental costs they cause
through the discharge of waste heat, technologies for the efficient use
of waste heat have become economically preferable.
If there are costs associated with the discharge of waste heat into
the environment, utilities should be charged effluent taxes which
reflect those costs. Such taxes will tend to encourage technologies
which use the waste heat constructively and will also tend to assure
that the price of electricity correctly reflects the true costs of its
production.
I have painted with a broad brush, but any questions you have today
-- or wish to forward me in the future in writing -- are welcome. I
will try to arrange to provide as complete an answer by consulting
technical sources or experts in the area as I possibly can. Thank you
again for the opportunity to testify on these important matters. I
would also appreciate the opportunity to supplement my remarks by
submitting supplemental relevant technical literature to the committee.
Mr. GINN. You made a very interesting statement. We will be pleased
to accept any additional information that you wish to call to our
attention.
We also want to thank you not only for your statement. We will be
pleased to accept any additional information that you wish to call to
our attention.
We also want to thank you not only for your statement but for
agreeing to answer some questions.
If I may, I would like to know more about you and about your
organization. You indicated you are an attorney. What other background
do you have that qualifies you to be as knowledgeable as you obviously
are in this area?
Mr. MAUSE. In addition to having a law degree, I took a master's
degree in public policy at the Kennedy School of Government at Harvard,
which was largely microeconomics and statistical analysis. Since I have
been with the Environmental Defense Fund I have had a somewhat unusual
career in that I have not been engaged in fighting new projects on
environmental grounds, but have mostly worked on the demand side of the
energy problem -- State rate case interventions and proceedings
concerning utility load growth and utility pricing. That has been the
area I have mostly worked with.
Mr. GINN. Are you involved on a full-time basis with the
Environmental Defense Fund?
Mr. MAUSE. Yes, sir.
Mr. GINN. Tell us a little bit about the Environmental Defense Fund.
Is it a membership organization? Do people pay dues to join?
Mr. MAUSE. Yes; we have a membership of about 45,000 members
throughout the country.(())
Mr. GINN. What is the cost to join?
Mr. MAUSE. $15. I will send you an application.
Mr. GINN. Thank you. I appreciate your courtesy, but I am a member
of just about all I can say grace over at the present time.
Mr. MAUSE. I understand.
Mr. GINN. Do you think that somewhere down the road the Federal
Government should nationalize the electric utility industry?
Mr. MAUSE. This is not an issue on which I have become an expert and
it is not an issue on which the Environmental Defense Fund has taken a
position. I can give you my opinion as Phil Mause without giving you
any position on the EDF.
My own opinion on that issue is, no, we should not. I am very
concerned that if the Government got into the business of running
electric utilities there would be enormous pressure, as costs increased,
to subsidize the use of electricity out of general taxpayer revenue
rather than to let prices increase to reflect the true costs of
generating electricity. And I think there is a greater --
Mr. GINN. Let's hold on that just a minute. You have indicated that
the price, the cost of electricity -- I assume you mean to the consumer
-- in some parts of the country has declined. It has not declined in my
part of Gerogia. My bill has exactly doubled. Where has it declined in
this country?
Mr. MAUSE. I am saying it declined in real terms, discounting for
inflation because you have to realize that everything else is increasing
also, between the end of World War II and 1969. Between that time there
was an enormous decline.
Rates started to go up in 1969. And starting around 1972 and 1973
they started going up faster than the general rate of inflation. But in
may parts of the country the combination of the decrease we had from
World War II and then the increase starting in the early 1970's has
produced a level that is right now at about the same level we had in the
late 1940's or early 1950's.
But I agree, in recent years, no, there has certainly not been a
decline -- the trend has been just the opposite. And I think the trend
that we have seen for the last several years will tend to increase in
the future. And this is what makes the business of load growth
projections so very, very difficult.
Mr. GINN. Mr. Mause, under the kind of consumer marketplace that we
have in the United States with such new energy-consuming devices as hair
dryers -- I think every woman has an electric hair dryer and I know my
daughters not only have one, but they want a spare in the event
something happens to the first one -- and sauna baths now being
installed in private homes, and a whole variety of kitchen skillets and
things of this kind pouring into the marketplace, do you think that we
will ever achieve the "saturation" to which you refer to? Do you really
think we have reached the saturation point?
Mr. MAUSE. No; I think there will be new uses for electricity
coming on. By the way, the spare hair dryer you refer to, if it is
simply used as a substitute for the first one, probably does not
increase the total consumption of electricity. But I think the new uses
are likely to be less energy intensive than the air conditioning and
water heating and some of the other uses which we were saturated with in
the past.(())
One very likely possibility is that a large number of American homes
will have computer terminals for education and a whole variety of
purposes within the next 25 or 30 years. But these do not use a
tremendous amount of energy as compared to heating and cooling
equipment.
And in the area of heating and cooling equipment there have been some
technological innovations which really reduce the use of electricity. I
believe some microwave ovens actually reduce the amount of electricity
consumed in electricity as compared to a regular electric oven. So I
think --
Mr. GINN. Let me interrupt you again. What is the difference in
price of a microwave oven and a regular oven?
Mr. MAUSE. I am not--
Mr. GINN. I think you will find the difference is considerable. And
I do not think the average American housewife can run out and buy
microwave ovens, although I am sure it is faster and would, therefore,
maybe use less electricity.
I think as we go to some of these energy saving devices, we have to
think about cost. For instance, people who have a Cadillac automobile
today may have bought it 3 or 4 years ago. It is difficult now to run
out and trade it and buy a Pinto because that is the thing to do. You
have got the cost to think about.
Well, let me ask you this, and then we will move on to some other
questions. I am interested in your remarks on cogeneration and space
heating. Since we seem to be moving toward nuclear production of
electricity, would your organization advocate putting a nuclear plant at
the city limits of Washington so that waste heat could be used to help
heat Washington, D.C.?
Mr. MAUSE. We have tried to avoid taking specific position on
specific supply options.
Mr. GINN. Yes, but you have advocated that cogeneration is a real
possibility.
Mr. MAUSE. There are ---
Mr. GINN. But can we, with the safety factors involved, put a
nuclear plant on the edge of a large city? I understand that it would
have to be close in order to take advantage of the waste heat. Can we
do that?
Mr. MAUSE. That is a problem with respect to district heating. With
respect to cogeneration, the question would be whether to put the
nuclear plant in proximity to a large industrial facility or an
industrial park or some facility of that type, which would not
necessarily have to be near a large city.
My understanding is that Consumer Power Co. and Dow Chemical Co.
tried to form what kind of a match with respect to Dow's Midland plant
in Michigan. I do not know how well that has worked out. There are
some problems as to what kind of an industrial facility you want to put
close to a nuclear powerplant.
I think one of the disadvantages of nuclear power compared to other
strategies for generating electricity is the siting problem that you
have just illustrated. It is hard to come up with strategies for
efficiently using the waste heat of nuclear power. It may be easier
with other generating strategies, Mr. Chairman, to come up with
strategies for using the waste heat efficiently.(())
So that is one of the issues. I am not saying that, therefore, we
are against nuclear power, because EDF has not taken that position.
Mr. GINN. I understand.
Mr. MAUSE. But I think that is one of the things you have got to
throw into the balance when you are making the tradeoff: the
opportunity for using the waste heat.
Mr. GINN. I think you are correct. But again, as I understand it,
while we have an abundant supply of coal at the present time, it is
harmful to the air. So that gives problems. We are running out of oil.
A lot of people do not like hydro projects any more. That is becoming
more and more obvious.
So where do we go? Solar energy is still down the road. It cannot
carry the whole load. I have heard that even when it is perfected and
in full use, it will probably take care of about 10 percent of our
energy needs. So that leaves another 90 percent. Where can we go but
to nuclear, Mr. Mause, to supply the need we have and at the same time
keep the price in the neighborhood of what the general public can
afford?
Mr. MAUSE. Well, I do not think though that nuclear should ever be
sold as a low-cost option, at least from what I have seen in State rate
cases and applications for rate relief by electric utilities that are in
the process of adding nuclear reactors.
Mr. GINN. You may be entirely right, but it is thought to be a
source of steady supply. That is something I think we must have in any
industrialized nation, an ample, dependable supply. And how can we get
it without going to nuclear?
Mr. MAUSE. Well, on the steadiness of nuclear -- and I agree with
the thrust of your remarks, which is that we are facing a terrible
dilemma -- but as to the steadiness of nuclear, a very recent study on
capacity factors of nuclear reactors indicates that they are not very
good. There is an awful lot of down time involved, which means that you
have got a very capital-intensive facility which, when it is not
running, means you have got to be substituting oil or gas or coal. And
you have enormous costs associated with that. So there are --
Mr. GINN. Well, let me ask you this: If there are so many problems
involved with nuclear, why do we have applications running out of our
ears to build nuclear plants?
Mr. MAUSE. Well, I think there was a time when nuclear looked a lot
better than it has been looking in the last several years.
Mr. GINN. Is it looking bad now based on facts or on political
philosophy?
Mr. MAUSE. Well, I think there are a number of factors that are
contributing to the difficulties with nuclear. If you look at the
patterns of orders for nuclear reactors in the last year and one-half,
there has not been anything like the number of orders that we had in the
past. I think partly that is the result of the energy conservation
response to higher prices. It is partly a result of some difficulties
with capacity. I am talking strictly about economic difficulties and
not environmental problems that have come up with nuclear power. So I
agree with you that we are facing a terrible dilemma. I am concerned,
however, in that I do not see nuclear as an easy way out of the dilemma.
It may have to be part of the solution, but it is not an easy,
inexpensive way out of that dilemma.(())
Mr. GINN. Well, thank you, Mr. Mause.
Mr. Cleveland?
Mr. CLEVELAND. Thank you, Mr. Chairman. I would like to thank Mr.
Mause for a very interesting and challenging statement. There are
certainly some thoughts in here that give the committee some reason to
think things over.
As I understand it from your testimony, you feel that the projections
of growth in the demand for electricity, at least the ones that are
floating around the country now, may be either inexact or inaccurate?
Is that a correct reading of your statement?
Mr. MAUSE. Well, there are a lot of them that are floating around.
I suppose that some of them I would agree with more than others.
Most of these projections have to assume a set of governmental
policies. And I think the projection will be somewhat sensitive to what
Government policies are ultimately adopted.
Mr. CLEVELAND. Well, yesterday we had testimony from witnesses that
indicated that some of the biological studies of what thermal discharges
and intake systems do to a body of water are very inexact; they are
very inexact and range all over the line.
And what I want to ask you is if you feel in this area of projecting
the need for electricity in the future is somewhat in the same
situation, that is, with some experts saying we are going to need much
more, and some saying we are not going to need as much, and even others
saying we do not need any more? Is that the type of situation that we
have with projections in the growth of demand for electricity?
Mr. MAUSE. Well, I think it is fair to say there is a big range
among the estimates.
Mr. CLEVELAND. The Edison Electric Institute indicated yesterday
that a moderate energy growth scenario would be 2.8 to 3 percent per
annum, which would imply an electric growth rate of about 5.5 percent.
Would you like to comment on that?
Mr. MAUSE. I think the recent FEA, the latest FEA national energy
outlook -- and I may be mistaken on this -- but I think the reference
case -- that is, assuming no major changes in Government policy or any
of the parameters -- came up with about 5 to 5.1 percent for electric
utilities. I may be incorrect about that so I will say that subject to
checking. Now, that is the reference case without various Government
policies.
Now, there are Government policies that might tilt things in the
direction of high electrification, and there are Government policies
that might tilt things in the opposite direction. There are also
Government policies that might reduce total energy consumption.
So I think that there would be some room to move downward from that 5
percent, depending upon what Government policies are adopted.
Mr. CLEVELAND. But by the same token you might have to move upward?
Mr. MAUSE. That is possible.
Mr. CLEVELAND. I can remember the in-thing last year -- and I don't
know how the chairman voted on it -- but last year we passed legislation
that mandated that the Government was going to have to buy 7,000
electric vehicles. And presumably when that is done, they are going to
pull up somewhere and their batteries will have to be charged.(())
We have been on again, off again with daylight savings time. And
every time that happens I remember debates about how much electricity it
might save or might not save.
So this governmental factor that you are suggesting is an important
part of projecting growth in the demand for electricity and it could
work both ways, could it not?
Mr. MAUSE. That is absolutely right. I think the electrical
vehicles hopefully will be able to be charged with off-peak power which
will improve the utility load factor but, at least in some cases, sir,
not require the addition of new generating capacity.
But you are absolutely correct in saying that the projections are
very uncertain over a fairly large range and that they are sensitive to
Government policy.
Mr. CLEVELAND. And if it is uncertain, would you think it would be
unreasonable for the Congress, or for the electric generating companies,
Mr. Mause, if they are going to make a mistake, to make it on the high
side rather than on the low side? Bearing in mind, if you please -- and
I am sure you have not forgotten -- but just a few years ago we had some
major brownouts in some of our cities.
Mr. MAUSE. Well, I think I would have to answer that question in
several parts --
Mr. CLEVELAND. Well, why don't you answer it yes or no and then go
from there? I mean do you think it is unreasonable for the U.S.
Congress to insist that the electric generating companies in this
country, that as they handle this issue of projections and new capacity
to meet the projections, that if they are going to make a mistake, do
you think it should be a little bit on the high side or a little bit on
the low side? Now, that is either a yes or no answer, and then you can
explain.
Mr. MAUSE. I do not think it is reasonable for the Congress to
insist that the electrical generating utilities in the United States
make a mistake.
Mr. CLEVELAND. Do I assume from that nonanswer that you are
suggesting that it would be a mistake if they took estimates on the high
side for future generating capacity?
Mr. MAUSE. Well, yes, I think you should come up with the best
estimate that we can come up with.
Mr. CLEVELAND. And then because of your testimony -- which of course
is quite correct that there are governmental policies that we do not yet
know but might affect this -- well, it might be logical to have a little
extra added into the estimate to take care of that possibility. Do you
think that is unreasonable?
Mr. MAUSE. I think it is a complicated question and I would rather
not simply give a yes or no. If I had to give a yes or no, the answer
would be "No."
I think as you add capacity in very large increments with long
leadtimes associated with them -- adding 1,100 or 1,200 megawatts at a
chunk to a system the size of Pepco's system for example -- you get into
a situation where, if your load growth projections are uncertain or
wrong on either side, there are enormous costs both to the consumer and
to the utility investor. Because if you add too much capacity, you
still have to pay the carrying costs of that capacity and you are going
to spread it over a smaller number of units of electrical usage, and
prices will have to be very high.(())
Mr. CLEVELAND. This is true, and this is why we have rate-fixing
bodies. And we heard yesterday from the State of New York -- were you
here yesterday?
Mr. MAUSE. No, I am sorry, but I was not.
Mr. CLEVELAND. Well, we had some very interesting testimony from the
New York rate-fixing body, the Public Service Commission. And they are
very aware of this because their function, and one of their important
functions, is to protect the consumer. So there has to be some proof,
you know, before one of these plants is proposed and licensed, that this
is going to benefit the ultimate user -- which is the consumer.
Let me go on to another subject. I was very interested in your
testimony on cogeneration and it certainly makes a lot of sense. But
can you tell me what happens in Sweden during the summer when they do
not need the heat? How do they turn the thing off? What do they do
with their heat then?
Mr. MAUSE. Well, with the cogeneration you are using the excess heat
for industrial process steam. So that use would continue in the summer.
With the district heating --
Mr. CLEVELAND. Excuse me, district heating was what I wanted to ask
you about.
Mr. MAUSE. Frankly, I do not know the answer to that question. I
will try to consult with the technical papers and experts.
There would continue to be a hot water use, but I am not sure what
they do in terms of the excess, over that use, that would normally be
used for space heating.
Mr. CLEVELAND. Well, it is the policy of this committee and I am
sure the chairman will have no objection, that you can add written
statements to your testimony in the record.
Mr. GINN. Yes.
Mr. CLEVELAND. I think we have that as a standard policy.
Mr. MAUSE. If I may, I would like to make one other point about
cogeneration. When your projections of growth are unstable, there is an
advantage to adding capacity in smaller increments, Congressman, with
shorter leadtime. So that you can react to changes that occur more
quickly and not be stuck with these enormous increments. That is
another advantage of cogeneration as compared to very large units of
nuclear capacity which, by their very nature, have to be added in very
large chunks.
When things get uncertain, it is nice to have more flexibility.
Mr. CLEVELAND. In your testimony, you talk about the danger of
excess capacity. What is your primary concern about the danger of
excess capacity?
Mr. MAUSE. The danger is to the ratepayer and the shareholder of the
utility: that you have made an enormous capital investment which you
have to discharge by charging rates to all consumers to cover the
carrying costs on that investment, and this can be enormous in the case
of nuclear reactors.
And if you have less use than you have projected, then there is a
smaller number of units of sale s than you anticipated -- and so the
rates have to be higher, because you still have to get that whole
capital cost from the smaller number of units. So in essence, you have
to raise rates considerably.(())
The response to that enormous rate increase may be a reduction in
usage, which might conceivably lead to a downward spiral.
There have been regulated industries in the United States which have
had that experience. I think some of the railroads have had that
experience, the notion of a self-defeating rate increase.
It is not a complete impossibility when you look at the cost of new
capacity in some parts of the country.
Mr. CLEVELAND. The reason I inquired about that is -- and you make
an interesting point, and it is certainly a well thought out point --
but I remember what happened last winter, when we had the sudden intense
demand in the Midwest where some of their sources of fuel were either
stuck in a barge in the ice somewhere, or just nonextistent. And it was
very fortunate for the country at that time, as you know, that there was
some excess capacity in the northern United States. And a great deal of
it was in New England, and a great deal of it had an atomic base.
So I think the electric utility companies can never get to a point
where they are going to have the exact amount of electricity that is
needed, because you have natural disasters over which even the U.S.
Congress has no control, or the courts of the country. And so I think
you ve got to be a little careful in saying that excess capacity is an
unmitigated disaster or dangerous. I recognize what you are saying, but
I think the other side is to remember that when you do have a natural
disaster, as we did last winter, it is very comforting to have some
excess capacity.
Thank you, Mr. Chairman.
Mr. GINN. The Chair would like to make a request of our members, and
I will live by this request as well, that if we are going to complete
this segment of our hearings around noon today, we are going to have to
observe the 5 minute rule. I shall attempt to live by that too.
Mr. Ertel, do you have questions?
Mr. ERTEL. Thank you, Mr. Chairman. I have just one question. I
read the statement you made about cogeneration, and the fact of
industrial process heat. Doesn't that imply, as a normal conclusion,
that what you are doing is setting up an energy park with an industrial
park adjacent thereto?
Mr. MAUSE. That would be one way of doing it.
Mr. ERTEL. Can you suggest another?
Mr. MAUSE. Well, I do not know what you define as an energy park.
You would have an electrical generating facility near an industrial
facility.
Mr. ERTEL. They would have to co-exist, would they not, within a
very close proximity, because you have the problem of transmittal of the
steam or the heat without a substantial loss?
Mr. MAUSE. That is right. You would have to have the generator near
the industrial facility.
Mr. ERTEL. And would you not run into a problem with
environmentalists on that bases, Mr. Mause, that you are, in fact,
establishing a major industrial complex, which would normally employ
people, next to what might be a nuclear power site?
Mr. MAUSE. Well, it depends on the kind of generating facility. You
would not --(())
Mr. ERTEL. Assuming you had a nuclear generating facility, which is
one of the types of facilities we build in the United States; how do
you get over that problem?
Mr. MAUSE. Well, I know there is the Dow-consumer power project at
Midland, where they have been talking about doing this kind of thing.
Mr. ERTEL. But that does not ---
Mr. MAUSE. I am not positive, and I will not under oath say that I
am sure that cogeneration with nuclear power is necessarily a good
option. I think it is something that has got to be looked at. I think
we have to analyze the opportunities for using this waste heat very,
very carefully.
Mr. ERTEL. All right, let us do it with coal. Much of the coal in
the United States has a high sulfur content, and, therefore, you have
the environmental problem of clean air in the proximity of a lot of
people too. Does that not then increase the cost of the production,
increase it if you have to put scrubbers in all of the system, or else
use low sulfur coal?
Mr. MAUSE. Well, I know we already burn considerable coal in
proximity to industrial sites in the United States. I would think it
would not be an insurmountable problem.
Mr. ERTEL. Do you recognize that in Pennsylvania, that in many of
the places in Pennsylvania, we cannot put a new plant in because it
would contribute particles to the air, which would then exceed the clean
air standards? In fact, Pennsylvania has exceeded the clean air
standards in many areas.
Mr. MAUSE. Even with scrubbers, you would exceed it?
Mr. ERTEL. Yes; with the best practical technology, they cannot put
the Volkeswagen plant in Pennsylvania. That happens to be a different
type of process, but they still cannot put it in under the standards.
So based on what you are telling us, how do you solve that problem?
Mr. MAUSE. Well, I am not a clear air expert, so I just cannot. I
think in the environmental and energy area you have an enormous and
complex set of very, very hard tradeoffs.
Mr. ERTEL. But that is not an answer, when you say, I am not a clean
air expert. In fact, we are faced with the clean air standards; we are
faced with an energy problem which has that as one of the trade-offs.
And to say that you are an expert in energy -- without considering the
side effects and the other points which would affect that -- certainly
begs the question, does it not?
Mr. MAUSE. Well, I am afraid I have to beg the question. I cannot
answer as to whether in specific sites cogeneration is necessarily a
better option than everything else. I think it has got to be looked at
on a case-by-case basis based on the air consequences. They have done a
pretty good study of this in New Jersey, and they are in the process of
putting together a pretty good study, I think, of what the opportunities
are in California.
But the cogeneration option is something that has to be analyed very,
very closely and carefully on a case-by-case basis.
If I have given you the impression that I generally think
cogeneration is good, that is true, but that does not mean that in every
instance I would favor cogeneration over everything else.(())
Mr. ERTEL. Thank you.
Mr. GINN. Mr. Strangeland.
Mr. STANGELAND. Yes, Mr. Chairman. I have just a couple of
questions.
I refer to your statement on appliance saturation, and I am wondering
if some of this is assumption or if some of it is based on documented
facts. It would seem to me, as I look out in my country, that it is not
so. And I am wondering what "high level of saturation" means?
Mr. MAUSE. I will provide, as a supplement to this statement,
Congressman, some documentation on saturation for various kinds of
appliances.
Mr. STANGELAND. And I sense with the growth in homes that we have in
our towns, I would sense that will all these new houses that they are
going to be heated electrically and that they are going to be cooled
electrically -- or at least a lot of them. And that is increased usage.
And while they may be efficient in their usage, they are going to use
more electricity than homes that are not being heated electrically now
and have not been in the past, because electrical heat in our area is
coming in and coming in very strong.
Then, on page 6, you talk about the "dynamic relationship between
price and growth. And we know that the per unit cost of electricity has
declined in the past.
But I am wondering if that price and growth relationship is higher
than just what would be reflected in inflation? Because the electric
rates have gone down while everything else has gone up.
Is there documentation that, because we are going to grow this fast,
then we are going to be paying more per unit of electricity?
Mr. MAUSE. Even taking inflation into account?
Mr. STANGELAND. Yes.
Mr. MAUSE. I think that has generally been the pattern since 1973,
although not universally and not in every part of the country. As to
the future, my general impression is that that will be the pattern, but
I would like to have the opportunity to provide more documentation on
that.
Mr. STANGELAND. No other question, Mr. Chairman.
Mr. GINN. Thank you, Mr. Levitas?
Mr. LEVITAS. No questions.
Mr. GINN. Mr. Hefner?
Mr. HEFNER. No questions.
Mr. GINN. Mr. Cornwell.
Mr. CORNWELL. Thank you, Mr. Chairman.
I want to get back to this high level saturation of appliances. You
say in one section of your statement that there is replacement of
existing appliances. So it does not seem to me that that high level
saturation has occurred yet. Now, in what way is the Environmental
Defense Fund participating in some sort of a nationwide program? You
say you have 45,000 members: is that correct?
Mr. MAUSE. Yes.
Mr. CORNWELL. And I would assume it is nationwide.
Mr. MAUSE. Yes.
Mr. CORNWELL. In what way is your organization stressing the need
for conservation in this country and promoting replacement of these(())
high-energy-consuming appliances with lower energy-consuming appliances,
if in fact you are at all?
Mr. MAUSE. In our newsletter to our membership we have already
stressed the importance of energy conservation. We are preparing a
statement in response to the President's energy conservation measure.
That will probably go out in our next newsletter.
We have intervened in an appliance efficiency standards case in
California, arguing for certain mandatory standards with respect to new
appliances.
One of our staff members tried to find out about the efficiency of
various refrigerators. He was buying one for his home, and found that
under the existing rules of the game it is almost impossible for the
consumer to discover what effect on his electric bill it will have, what
effect the various kinds of appliances will have.
So there is an enormous potential here for an active Government
policy so the consumer can know what he is getting into when he buys an
appliance; and I think in some cases to establish mandatory standards.
We have been involved at the State level in trying to push for those
things.
Mr. CORNWELL. Do you go any further than just those 45,000 people
you have in your organization?
Mr. MAUSE. A number of our staff members give speeches and talks
around the country. We are not primarily a public education
organization, although we have from time to time gotten into that area.
But we are primarily a legal and political action group.
Mr. CORNWELL. Well, you know, we can sit up here and devise the best
laws known to man in energy and conservation, but without full citizen
participation at the local level all of those laws would be meaningless.
And I would suggest that your group and every other group similar to
yours, Mr. Mause, get very heavily into public education programs,
because it is going to be extremely necessary in the very near future.
As a matter of fact, it should have started last year, or 2 years ago,
or 10 years ago.
Mr. MAUSE. I could not agree more.
Mr. HEFNER. Would the gentleman yield for just a question?
Mr. CORNWELL. Most certainly.
Mr. HEFNER. I was on the Interstate and Foreign Commerce Committee,
and we worked on the clean air Amendments, which died, as you well know,
in conference at the end of the last Congress. But are there not some
mandates that appliances be more efficient; that they be labeled as to
their efficiency so that the consumer will know what he or she is
buying? And is it not a fact that there are some committees that are
having hearings and moving to mandate that electrical appliances be more
efficient?
Mr. MAUSE. To my knowledge, there is currently in place in FEA a
very complex appliance efficiency labeling program, which I have not
followed very closely. Frankly, over the last several years we thought
the action on energy conservation was at the State rather than the
Federal level. And we got very actively involved in the States where
there was activity -- California, Wisconsin, New York, Colorado. And
there have been some very creative things done at the State level.(())
But I think there is a possibility that either in the energy message
of the President, or in some existing legislation in Congress, sir, that
mandatory standards rather than simply labeling will be required. But I
am not familiar with all the legislative proposals.
Mr. HEFNER. Well, I think that is either in the law or was within
the clean air amendments. And we probably will have the same language
in the clean air amendments when they up in this session. I know that
when we marked up the Clean Air Act, we had this in the legislation.
And I would assume that it would remain in the legislation, because it
was not a very controversial portion of the bill. And I think it is a
very good idea, because the testimony that we had was that appliances
are so inefficient, that indeed they could be made more efficient, and
that we did have the technology. I just want to make that point. I
thank the gentleman for yielding.
Mr. CORNWELL. I have another question. In your testimony, you make
the statement:
Because of the institutional strictures and regulatory rules which
have grown up in a period of cheap energy generated by central power
stations of electric utilities, there are barriers to cogeneration which
must be overcome.
I would like to have you address yourself to the regulatory rules, if
you do not mind. What agencies are you talking about specifically, and
what are those rules and regulations that are so restricting?
Mr. MAUSE. I will give you a superficial shot at it, and I will
provide a more detailed technical analysis of this in writing.
Mr. CORNWELL. You have my persmission, but I probably will not have
the time to read it.
Mr. MAUSE. OK. One of the serious problems is rate structure. The
current kind of rate structure we have in the United States, with a very
high demand charge for maximum use, Congressman, does not tend to
encourage industrialists to go in the direction of cogeneration.
I do not think the demand charge is completely unjustified. I think
we might want to look more closely at how high a demand charge or how
high a charge for backup power is really justified economically. And I
think there is some indication that there is a lot of room for reform in
that area.
The other important question is: what price will the utility pay the
industry who produces the electricity with cogeneration? Generally,
that price has been based on historic utility costs, rather than a
comparison between the electricity coming in from cogeneration and other
alternative new sources, the marginal cost of new electricity to the
system.
I think the rates which the industrial cogenerator would get would
have to be analyzed closely. Most of these things are done at the State
level in public utility and public service commissions. And some of
those commissions have started to look at this very, very hard. I think
the two States where there has been the most activity are New Jersey and
California.
And I will try to get more material to you on this.
I believe there is some problem under the Public Utility Holding Act
for an industrial user to sell electricity. He may become a utility or
some other entity, which creates a problem under securities laws. If
the utility is to own the cogenerating facility then there is the
difficulty of coordinating the utility and the industrial user and
getting them to work together, and getting a system that satisfies
the(()) needs of both that comes on line at a time when it satisfies the
needs of both.
And these are not insignificant institutional problems. Some of
them, I think, are inherent problems in coordinating electric utility
generation and industrial process steam. Some of them are artificial in
the sense that the regulatory rules of the game have not been set up
with an eye towards encouraging cogeneration.
Mr. CORNWELL. Mr. Chairman, if I might just have one more question?
What, in your opinion, is the future of nuclear energy in this
country? And what do you propose to do with the nuclear waste that is
generated?
Mr. MAUSE. I hope I do not have the responsibility of dealing with
the nuclear wastes that are generated. I think it is very iffy, it is
very uncertain. There are a lot of problems in the nuclear direction,
but I think there are a lot of problems in every other direction we can
go on the supply side.
But I think it is an uncertain situation at the current time, and I
think it would be dangerous to plan our energy policy on the assumption
that there will be an enormous growth in nuclear generating capacity.
There are a number of regulatory, economic, and environmental
uncertainties that cause me to lose some sleep.
Mr. CORNWELL. Thank you.
Mr. GINN. Mr. Mause, we thank you for your testimony. You have been
very, very helpful.
Mr. MAUSE. Thank you, Mr. Chairman, and I do appreciate it if I will
have the opportunity to supplement my remarks. I apologize for not
being able to answer your questions in as much detail as I would like
to, and I hope I can answer some of them in more detail in writing.
Mr. GINN. We fully understand that, and we welcome your additional
comments for the record.
Our next witnesses today represent the Natural Resources Defense
Council. We have Miss Sarah Chasis and Mr. Anthony Roisman. I hope I
am pronouncing both names correctly.
Before you are seated, could I please administer the oath to you?
Do you solemnly swear that the testimony you will give the
subcommittee will be the truth, the whole truth, and nothing but the
truth, so help you God?
Ms. CHASIS. I do.
Mr. ROISMAN. I do.
Mr. GINN. We are delighted to have you here. Your organization is
well known and respected. We look forward to receiving your testimony.
Please proceed as you desire.
HRG
770420
SARAH CHASIS ANTHONY B. ROISMAN
STAFF ATTORNEY, NATURAL RESOURCES DEFENSE COUNCIL STAFF ATTORNEY,
NATURAL RESOURCES DEFENSE COUNCIL
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, TESTIMONY OF SARAH CHASIS, STAFF ATTORNEY, NATURAL RESOURCES
DEFENSE COUNCIL, AND OTHER (PP 326 TO 336)
--
--
95-217
--
CW270020 CW270030
05777
(())
TESTIMONY OF SARAH CHASIS, STAFF ATTORNEY, NATURAL RESOURCES DEFENSE
COUNCIL; AND ANTHONY Z. ROISMAN, STAFF ATTORNEY, NATURAL RESOURCES
DEFENSE COUNCIL
Ms. CHASIS. Thank you very much. I will first address myself to
some of the issues of concern to this subcommittee. Mr. Roisman will
then speak to other issues.(())
The Natural Resources Defense Council, Inc. (NRDC) appreciates this
committee s invitation to appear and present testimony on the regulation
of the electrical power generating industry under the Federal Water
Pollution Control Act Amendments of 1972 (FWPCS).
NRDC, which is a national, nonprofit environmental organization with
a membership of approximately 30,000, has, through its project on clean
water, closely monitored Federal implementation of the FWPCA. As part
of this work, NRDC has reviewed and commented upon the regulations
proposed by the U.S. Environmental Protection Agency (EPA) under
sections 301 and 316 with respect to the power industry, as well as
sections 316(a) and 316(b).
NRDC has intervened in the case brought by the power companies
challenging EPA's regulation under section 316(b). For the last several
years, NRDC attorneys also have participated in several Federal
licensing proceedings, representing commercial and sport fishermen
committed to the protection of the valuable fishery resources of the
Hudson River, presently threatened by the operation of several major
powerplants. As a result, NRDC has had substantial experience with the
environmental problems posed by powerplant operations.
We also have intervened in a case which has been brought by the
utilities charging EPA's regulations under 316(b) of the Water Act.
(Appalachian Power Co., et al. vs. EPA, No. 76-1474, U.S. Court of
Appeals for the Fourth Circuit.)
NRDC is concerned that this Nation's natural resources -- its
commercial and sport fisheries, its rich aquatic ecosystems which
comprise important food resources for this and future generations --
will be irreparably damaged unless adequate environmental controls are
imposed on the siting and operation of electric generating facilities.
Our comments today will focus on NRDC's view of the nature and extent
of the damage which can be caused by the cooling water systems of
powerplants, and the adequacy of the legal authorities under the FWPCA
to deal with these problems, and the manner of implementation of these
controls by EPA.
I will not read my full prepared statement, but I would like to
address some of the more complicated issues, if I might.
The first area that I would like to address is the question of the
environmental threats which can be posed by powerplant operation, and
particularly the problem of entrainment and impingement of fish. I
think this is something which many, many people may not be aware of as a
serious threat.
Thermal pollution has been traditionally the prime focus of
attention, but one of the greatest environmental hazards posed by
powerplant operation is the reduction in important fishery resources
through the entrainment and impingement of young fish.
Powerplants act as giant predators consuming the aquatic life of the
water body from which their cooling water is drawn. For example, the
plants sited on the Hudson River estuary at Indian Point withdraw more
than 1 1/2 million gallons of water per minute from the river. That
water entrains with it fish eggs, larval forms of fish, and other minute
forms of life.(())
A majority of this aquatic life will be killed through sudden changes
of temperature, pressure, and mechanical shock as the water passes
through the plant and cools the condensers. In addition, hundreds of
thousands of fish will be killed annually on the screens of the plants.
This kind of vast environmental insult cannot be tolerated and must be
corrected.
The harm threatened is greatest where the water body on which the
powerplant is sited is an estuary, a particular kind of aquatic
environment recognized as one of the most productive in the world.
The Hudson River is a case in point. The Hudson River estuary
supports a substantial fishery of which the striped bass is an important
part. Hudson-spawned stripe bass contribute significantly to the
coastal commercial and sport fisheris of New York, New Jersey, and the
New England States. The major spawning and nursery area for this
striped bass fishery is in the same reach of the estuary as five major
power plants -- Indian Point, Roseton, Bowline Point, Danskammer and
Lovett -- as well as one proposed pumped storage facility at Storm King,
all of which at present utilize one-through cooling systems.
The threat posed by the massive water-withdrawals now occurring at
these sites has been estimated by the Nuclear Regulatory Commission
Staff to be an annual reduction of 34 to 50 percent in the population of
young-of-the-year striped bass. As a result, the Nuclear Regulatory
Commission, pursuant to its responsibilities under the National
Environmental Policy Act (NEPA), has conditioned operation of the two
nuclear generating plants at Indian Point over which it has jurisdiction
on the cessation of once-through cooling and on the use of a
closed-cycle cooling system. The use of a closed-cycle cooling system
reduces by 97 to 98 percent the volume of cooling water by recirculating
the cooling water rather than continuously withdrawing large volumes
from and discharging large heated volumes to the environment.
EPA has also acted to limit water withdrawals at the Hudson River
plants in the national pollutant discharge elimination (NPDES) permits
it has issued. However, as we will describe below, these controls have
not yet taken effect.
The Hudson River is not the only system exposed to this kind of
stress. Serious entrainment and impingement problems exist at plants
around the country on other estuarine systems, such as the Brunswick
plant in North Carolina, the Crystal River plant in Florida, the
Morgantown plant on the Potomac, as well as at powerplants on freshwater
bodies, such as the Monroe plant on Lake Erie and the Arkansas plants.
EPA has stated there are probably entrainment and impingement
problems at something like 40 existing operating plants.
We must recognize the public nature of the resources held in trust
for the people and the equitable argument for the internalization of
costs. This requires that, so far as possible, the costs of the actions
described above which have been externalized on public resources be
minimized and the public resources be protected from invasion.
I understand you will be having a technical panel tomorrow. The
members of that panel will be able to discuss the serious problems,(())
thermal problems, produced by the effluents of both nuclear and fossil
fuel plants.
(The former Federal Water Pollution Control Administration has
summarized the impacts of artificial temperature increases as follows:)
(1) Heat affects the physical properties of water such as density,
viscosity, vapor pressure, and solubility of dissolved gases.
Consequently, such processes as the settling of particulate matter,
stratification, circulation, and evaporation can be influenced by
changes in temperature. Since the solubility of oxygen in water
decreases as temperature increases. thermal Dollution reduces the oxygen
resources. Most aquatic organisms depend on dissolved oxygen to
maintain growth and reproduction.
(2) Heat affects the rate at which chemical reactions progress, and
it can speed up the formation of undesirable compounds or change dynamic
chemical equilibria. It also affects biochemical reactions and can
result in a more rapid depletion of the oxygen resources. If sufficient
heat is added, temperatures can be elevated enough to sterilize the
environment by killing all living organisms.
(3) Environmental temperatures are important to the living resources.
Physiological processes such as reproduction, development, and
metabolism are temperature dependent. The range of many species of
fishes and the species composition of communities are governed to a
great extent by the environmental temperature. Temperature anomalies
also can block the passage of anadromous fish greatly reducing future
populations.
(4) An increase in temperature can result in synergistic action;
that is, the simultaneous effect of separate agents is greater than the
total sum of individual effects. Prime examples are increased toxicity
of some materials, increases in susceptibility of fish to diseases, and
increased virulence of fish pathogens.
(5) Thermal pollution affects other aquatic organisms such as the
aquatic plants, the benthos, and the bacterial populations. Increased
temperatures may reduce the number of species in the community and
stimulate excessive populations of individual species to nuisance
conditions.
(The National Estuarine Pollution Study, U.S. Senate, 91st Cong., 2nd
Sess., Doc. 91-59, FWPCA, 1970.)
The complex of power stations along the Hudson River, if permitted to
continue operation with their present once-through cooling systems,
would raise the temperature of the estuary by 4 to 5 over a 35 mile
stretch, according to NRC calculations. The effects of such loading
would be complex and adverse. The following are examples of
temperature-linked plant external effects that have been predicted:
(1) With an increase of 6- F, striped bass would be killed as embryos
or as young larvae immediately after hatching from the egg;
(2) Summer peak temperatures would reach the point where young
striped bass (in experiments) have lost their equilibrium and become
helpless and vulnerable to predators;
(3) Growth metabolism of some fish species would be unbalanced and
growth rate diminished;
(4) Undesirable blue-green algae could become more dominant over
diatoms and green algae; the food chain would be diminished and less
able to support the life of the estuary;
(5) Spawning of many species could be thrown out of time synchrony
with the seasonal occurrence of food supplies of the larvae.
The thermal effluent of power plants also plays a role in the massive
fish kills which have been recorded at many plants. Cold shock kills
are caused by plant shutdowns. With the heat source no longer
available, fish that have been living in the warm effluent plume are
subject to a rapid and potentially lethal drop in temperature. High
temperature shock kills have also been reported. In John Clark's
Electric Power Plants in the Coastal Zone: Environmental Issues several
such fish kills are described, including one at Jersey Central Power and
Light Company's Oyster Creek plant where 100,000-200,000 menhaden were
reported killed between January 28-30, 1972.
Ms. CHASIS. EPA possesses the authority under the FWPCA with respect
to these adverse environmental impacts.(())
Under the FWPCA, the EPA is given the power to control the thermal
effluent problem through the promulgation of limitations and standards
under Section 301 and 306. And its power under section 316 provides a
mechanism for regulating cooling water intake. The latter relates
directly to the entrainment and impingement problem, and requires that:
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.
It is pursuant to section 316(b) that EPA limits the volume and rate
of cooling water intake. This section is thus critical to protection of
aquatic ecosystems from the impacts of entrainment and impingement.
If the utilities who are now waging a legal challenge to EPA's
authority to protect against these adverse impacts are successful, they
will drive a major hole through this Nation's scheme for water pollution
protection and control.
EPA's failure to implement effectively the authorities it does
possess to deal with the problems of entrainment, impingement, and
thermal pollution, combined with the power industry's intransigent
resistance to regulatory control, no matter how reasonable or necessary,
has left the public at the present time with virtually no protections.
I would like to detail some of the problems that have existed with
EPA's implementation.
EPA implemented FWPCA 301(b) (2) (a) by establishing substantive
thermal effluent limits for "Steam Electric Generating Point Sources,"
which require certain categories of powerplants to install "closed-cycle
cooling towers" by 1981. 40 CFR section 423.13(1). However, 40 CFR
section 423.13(1)(4) provides a "land availability" exemption which
permits unlimited thermal discharge when the owner of the plant can show
that (1) sufficient land for "mechanical draft cooling towers" is not
available and (2) that no alternative recirculating cooling system is
"practicable."
The land availability exemption overrides the substantive and
procedural burdens placed upon point source operators by FWPCA section
301(c) and FWPCA section 316(a): Section 125.13(1)(4) does not require
any showing of reasonable further progress toward elimination of
discharge or that the discharge will permit a balanced, indigenous
population in the receiving waters. Rather than calling for less
stringent limitations, the land availability exemption permits the
qualifying point source to discharge heat without any limitation at all.
Furthermore, and I am sure you were informed of this fact yesterday,
the utility industry's challenge to the thermal effluent regulations has
resulted in a court remand to the agency for revision of those
regulations. We have been disappointed, to date, in the fact that the
Agency has failed to revise and repromulgate those regulations.
We think that they have made this an insufficient priority within the
Agency.
With respect to the industry which has made so much of the fact that
cooling towers are required in certain instances under EPA's 301,(())
306, and 316 regulations, it should be pointed out that, according to
the Federal Power Commission Bureau of Power, roughly one-third of the
steam electric plants operating as of 1974-75 have cooling towers. A
Federal Power Commission staff report summarizing electric utility
expansion plans, dated September 12, 1973, revealed that, of the
projected steam units 300 megawatts and over for which construction had
begun or was scheduled to begin within 10 years, roughly 40 percent of
the units had planned for cooling towers anyway.
On the entrainment and impingement problem, it took EPA 3 1/2 years
to promulgate regulations under section 316(b). Furthermore, the permit
requirements, established pursuant to this authority, have been rendered
ineffective, to date, for the following reasons:
EPA has established discharge permit procedures which provide that
within 30 days from the date a final permit is issued the operator of
the facility to which the permit applies may request an adjudicatory
hearing, as to any or all conditions of the permit. If EPA grants the
request, the final permit: "Shall not be considered the final action of
the Administrator for the purposes of judicial review pursuant to
section 509(b) of the act," and, "the effect of the contested provisions
shall be stayed." 40 CFR section 125.35 (d)(2).
During the adjudicatory hearing process which may last years, as has
been the case on the Hudson River, the facility in question may continue
to operate without compliance with the contested provisions, and remain
effectively immune from citizen or EPA enforcement actions. EPA's
regulations prolong Agency inaction and postpone enforcement of the
provisions of the Water Act.
Industry has not ignored the possibilities of EPA's adjudicatory
hearing procedures. In March 1975, EPA granted final discharge permits
for five powerplants on the Hudson River. All except one contained
limitations which would have required the installation of cooling
towers. The owners of all five facilities filed requests for
adjudicatory hearings, challenging virtually every provision in each
permit.
The permittees made skillful use of the adjudicatory hearing
mechanism to completely shift the time burden of the FWPCA. EPA granted
all five adjudicatory hearing requests and stayed the effectiveness of
all challenged permit provisions pursuant to 40 CFR section
125.35(d)(2).
A hearing schedule was just established which will be completed
sometime in 1978. At the time final permits are reissued, the utilities
will be entitled to judicial review pursuant to section 509. Meanwhile,
the plants are continuing to operate causing present harm to the
environment. The same situation is faced at numerous plants around the
country.
EPA's less than vigorous implementation and enforcement of the FWPCA
with respect to the steam electric-generating industry has left this
Nation's valuable aquatic and marine resources unprotected to date.
What good will all the clean water in the world do if there is no life
in our rivers and estuaries? The power industry's challenge to every
regulation, no matter how reasonable, and to every permit term, no
matter how necessary, has made the situation even more serious. The law
should and must be enforced.(())
Thank you for this opportunity to present our views on the regulation
of the electric power-generating industry under FWPCA.
I would like to allow Mr. Roisman the opportunity to add to my
comments.
(Whereupon Mr. Hefner assumed the Chair.)
Mr. HEFNER. If there is no objection, in the interests of saving
time and probably duplication of questions, we will hear Mr. Roisman's
statement. Fell free at any time, if you like, to capsule your remarks.
Your entire statement will be entered into the record.
We would like to thank you, Ms. Chasis, for an excellent statement.
When we will come back and have questions from the committee, it will
question both of the witnesses at one time.
Mr. ROISMAN. My name is Anthony Z. Roisman, and I am a staff
attorney with the Washington office of the Natural Resources Defense
Council. I have held that position only for about 2 weeks. Prior to
that time, I was an attorney in the law firm entitled Roisman, Kessler,
& Cashdan, where we represented, among others, the Natural Resources
Defense Council.
I am not going to read my testimony to you today and I am only going
to speak very briefly.
My thrust in this testimony is on process and not on substance. I am
interested in both subjects, but it seems to me the question the
committee asks in the letter of invitation to the Natural Resources
Defense Council and the questions that I felt most confortable
addressing this morning were the process.
And I should start off by making very clear that I am a fanatic about
due process of law. I believe that the mechanisms by which decisions
are made is really the key to whether the decisions will be right or
wrong, and it is also the key to whether or not the decisions will be
acceptable.
This issue which the committee has been discussing for the last 2
days, and will continue to discuss, that is, the interrelationship
between environmental protection, on the one hand, and energy growth on
the other, is one on which there are fair things to be said on both
sides. There is an honest difference of opinion.
But I would like to see a better process than we have now for a
resolution of that honest difference of opinion so that we can move
ahead with whatever we have decided to move ahead with. I think the
present system -- the one involving the Nuclear Regulatory Commission,
the Environmental Protection Agency, the Federal Power Commission, the
Federal Energy Administration, the Energy Research and Development
Administration, and all the other Federal agencies that touch on energy
and the environment -- is a mess.
And I do not want to lead you to believe that I am in favor of the
status quo. By the same token, I am opposed to the suggestion that
there be a mere change in the process to see to it that one side of this
controversy wins more easily than the other. I think that is not change
which involves any progress whatsoever. And I think that what is
required is a willingness to rethink some fundamental assumptions which
we have made.
There have been assumptions made about the desirability of more and
more energy supply, and not nearly enough assumptions made about the
importance of controlling energy demands.(())
There have been assumptions made about the virtues and benefits of
nuclear power, and not enough about the disadvantages of nuclear power.
There have been some assumptions made about the extent to which our
rivers, and our lakes, and our oceans can withstand the insults that are
imposed upon them by the burning of fossil fuels, nuclear fuels, and
other similar fuels.
We must change those assumptions. We must go back and look and see
whether what we have been doing is the right thing. Because it is quite
clear that as we stand here literally only hours away from the most
important energy message that any President of the United States will
ever present to the Congress, that we are keenly aware of the fact that
we have blundered -- and blundered extraordinarily badly.
And what my testimony is addressed to today in a very small way, Mr.
Chairman, is simply some small changes that might be made to eliminate
the likelihood that we will continue to make similar blunders in the
future.
The reforms that I am talking about today, because of the thrust of
your inquiry, are narrow: How can we get the overlapping reviews of
EPA, the States, and the Nuclear Regulatory Commission on issues dealing
with water quality matters coordinated so that we can get decisions on a
timely basis? And if we have decided to proceed with a facility, how
can we proceed with it expeditiously? And if we have decided not to
proceed with it, how can we know that at an early date so that the
alternative steps which should be taken, can be taken?
The testimony lays out briefly what those reforms are. I have also
attached to it a more general statement that I made in the form of a
letter to the Nuclear Regulatory Commission which was studying the
interrelationships between State and Federal decisionmaking and facility
siting. That goes into the question more generally.
I won't reiterate those for the committee, but I will be more than
happy to answer questions about them.
My principal thesis, the bottom line, is that we have got to start
dealing with these problems not as the special interests of any
particular group, but as a national interest; that the only way we are
going to get results which the country can live with is if all the
people in the country are jointly involved in making the decisions. We
do not want a process in which citizens dictate to utilities; and we do
not want the process that we have now in which the utilities dictate to
citizens.
Thank you.
(The following prepared remarks and attachments were received for the
record:)
PREPARED STATEMENT OF ANTHONY Z. ROISMAN, NATURAL RESOURCES DEFENSE
COUNCIL
Mr. Chairman: My name is Anthony Z. Roisman and I am a staff
attorney with the Washington office of the Natural Resources Defense
Council. Until recently, I was the lead counsel for the New England
Coalition on Nuclear Pollution in the Seabrook case before the Nuclear
Regulatory Commission and the United States Court of Appeals for the
First Circuit. In my testimony today I will address the question of the
relationship between the NRC and the Environmental Protection
Agency.(())
Prior to the enactment of the Federal Water Pollution Control Act
Amendments of 1972 and as a result of the court decision in Calvert
Cliffs' Coordinating Committee v. AEC, minimum water quality standards
were set for nuclear reactors by the Federal Water Pollution Control
Administration and its successor EPA. However, NRC was specifically
required under NEPA to consrder as an alternative to a proposed reactor
the imposition of more stringent water quality standards for any propsed
nuclear reactor. Effluent standards were gnerally already established
and following Calvert Cliffs the AEC was expected to and did, for
awhile, vigorously pursue some aspects of NEPA, particularly water
quality issues. Thus few, if any, serious problems arose as to the
order of decisions by the AEC and EPA.
All of this changed with the passage of Section 511(c) of the Federal
Water Pollution Control Act Amendments of 1972. That provision
overturned a crucial portion of Calvert Cliffs and required the AEC to
accept the EPA effluent limitation as both a minimum and a maximum. Of
course, it was still necessary to consider the environmental and
economic consequences of meeting the EPA standards in order to prepare
the overall cost/benefit analysis for the facility.
Both AEC and EPA recognized that for the new system to work EPA
should make its decision before NRC prepared its NEPA analysis. Before
EPA promulgated effluent limitations for steam electric power plants,
the AEC retained the authority to establish limitations on plant
operations related to water quality. Once EPA set the standards, the
AEC was obligated to follow those standards. This would have been a
relatively easy task but for Section 316(a) of the Federal Water
Pollution Control Act Amendments of 1972, another industry-supported
provision. /1/ Pursuant to that Section, exceptions to the thermal
effluent standards for steam electric power plants were allowed if
certain tests were met. As a result, a straightforward application to
EPA for a discharge permit could become complicated and involve years of
uncertainty of a utility sought an exception to the general rule. That
is, of course, exactly what has occurred in the Seabrook proceeding.
((/1/ It should be noted that the thermal effluent guidelines
promulgated by EPA were subsequently challenged by several utilities on
procedural grounds in Appalachian Power Co. v. Train. As a result there
are not now any thermal effluent standards for large classes of power
plants and each plant must be analyzed on a case-by-case basis, which
is, at best, time consuming.))
From this brief history several points emerge. First, in the long
run, if utilities file their applications to EPA early enough in the
utility planning process and no exceptions are sought under Section
316(a), NRC should have a final EPA order to use as the basis for
conducting its NEPA review. Second, where it appears for any reason
that the EPA and NRC reviews will overlap, there should be a mechanism
to avoid conflicts and delay and the principal emphasis should not be on
NRC completing its review but on NRC and EPA coordinating their reviews.
Several steps could be taken under existing law to avoid at least
some of the problems inherent in the NRC review preceding or overlapping
the EPA review.
First, EPA and NRC should require utilities to file for effluent
discharge permits or exceptions at least a year prior to submitting a
license application to NRC and should notify NRC of the filing.
Second, EPA and NRC should immediately inform the public and
concerned federal and state agencies in an effort to determine whether
the permit application is likely to be controversial and, if so, on what
grounds. This effort must involve a serious outreach by both agencies
to identify any possible controversy.
Third, where EPA or NRC believes a controversy is possible, that
serious factual issues are involved and that their resolution may
overlap the NRX/NEPA review, they should establish a joint NRC/EPA staff
effort to develop (and where appropriate bring in concerned states) from
the applicant, the concerned citizens and their own resources, all of
the facts which are essential to the following determinations: 1. What
discharge permit, if any, should be issued by EPA; 2. What will be the
environmental and economic costs of the permit conditions imposed by
EPA.
The data for these two determinations will be overlapping and will
often involve an investigation of a range of possible effluent discharge
systems.(())
Fourth, once the data are gathered, EPA/NRC and any interested states
should hold a joint hearing governed by a combination of the rules of
all those agencies which assures that the maximum procedural rights are
preserved. /2/
((/2/ In cases which are controversial, the legislative hearing
format of EPA is merely a waste of time since the losing party will
almost certainly demand the right to a de novo review with an
adjudicatory hearing. Thus, there is no sense to the legislative
hearing in such a case and that step is essentially dropped. If there
is any question that all parties will agree to this, the statute should
be amended to allow EPA to drop the legislative hearing and go
immediately to adjudicatory hearings in controversial cases.))
Fifth, first EPA and then the state, if any, would reach their
conclusions on the issues. NRC would then use the data obtained in the
hearing as the basis for its inputs in the draft environmental statement
on the impacts of meeting EPA and state effluent limitations. Further
NRC hearings on these impacts would be governed by the traditional
doctrine of res judicata.
A principal benefit of this scheme is that there is an incentive to
EPA and NRC to be thorough and efficient in their review because until
the review is completed, a licensing decision on the facility cannot be
reached. By requiring completed, a licensing decision on the facility
cannot be reached. By requiring early filing of the discharge permit
application, there is time to develop the facts and have the hearings
without delaying the NRC review.
Once crucial change which must be made to make this system fair to
the public is to assure that EPA and NRC will provide financial
assistance to any party in the proceeding who does not have a
substantial economic interest in the outcome, to the extent that party
makes a relevant and non-redundant presentation as to any issues
involved. It is foolish to continue to accept the myth that hearings in
which one party is fully funded by involuntary payments for electric
rates and its opponent is not provided with a similar involuntary
payment system will produce fair results. Underfunded citizens require
more time to make their case through time-consuming discovery and
cross-examination than properly funded citizens who can principally rely
upon direct testimony. Funding the presentation of all relevant and
non-redundant issues improves the quality and integrity of the
decision-making process and increases the likelihood that the result
reached is the correct one. Tying funding to the presentation of
relevant and non-redundant issues essentially drives out irrelevant or
redundant presentations, thus saving time in the hearings.
I would like to say one final word, not about the general principles
outlined above, but about eh Seabrook case. This case has been the
subject of such an intensive and essentially misleading series of
charges and countercharges that I feel compelled to set the record
straight.
First, it cannot and should not be assumed that the construction and
operation of Seabrook is beneficial. That issue is yet to be resolved.
Still pending for final determination are a whole panoply of safety
and environmental issues other than the cooling system. Included in
these issues are the seismic design requirements for the plant, the
financial qualifications of the applicants, the need for the power to be
generated by Seabrook and the energy alternatives to all or part of
Seabrook, including energy conservation, solar energy and coal.
Representing citizens on these issues at the hearings were leading
seismologists, economists, environmentalists and engineers from leading
colleges and universities. It is fair to say that Seabrook, on the
merits, is an extraordinarily controversial proposal.
Second, in light of this legitimate dispute, it is not surprising
that the case has taken and is taking a long time to resolve.
Third, much of the delay caused by the uncertainties in the cooling
system are directly traceable to Public Service Company of New Hampshire
and the NRC Staff. PSCNH did not apply to EPA for a discharge permit
until some time after it sought to docket its NRC construction permit
application. Even though cooling towers would only add 3 percent to the
cost of Seabrook, PSCNH decided to seek an exception to the cooling
tower requirement and it is the continued pursuit by it of that
exception which is now the principal cause of the halt in Seabrook
construction and the uncertainties as to Seabrook's future. /3/
((/3/ I wholeheartedly support PSCNH's right to seek the exception
and to appeal its denial. What I oppose is the effort of PSCNH to place
the blame for the delay caused by that course of action on someone other
than itself.))
Both the NRC Staff and PSCNH sought to develop in the Seabrook
hearing facts sufficient to prove that even with cooling towers,
Seabrook was acceptable at the proposed site. Because of lack of
citizen resources, they were essentially(()) unopposed in their
position. Nonetheless, these one-sided presentations were so inadequate
that both the Atomic Safety and Licensing Appeal Board and the Nuclear
Regulatory Commission concluded that further evidence needed to be
developed and further hearings needed to be held on that issue and on
comparison of the Seabrook site to alternate sites.
Fourth, it has been clear from court cases, including the Supreme
Court, and from NRC requirements, that any utility which receives a
construction permit and begins construction on the basis of it does so
at its own risk. PSCNH not only rushed to begin construction at
Seabrook before completion of appellate review at NRC or EPA, but prior
to receiving its construction permit had already irrevocably committed
$205,000,000 to the facility. This extraordinary conduct by a utility
in risking the resources of its shareholders and the ratepayers of New
Hampshire prompted the United States Court of Appeals in Boston to
State: "We are unable to identify any other field of publicly-regulated
private activity where momentous decisions to commit funds are made on
the strength of preliminary decisions by several agencies which are open
to reevaluation and redetermination. The risk of loss to the private
investors is necessarily a real and always present one. Perhaps more
important to the public weal, the risk of public agencies and courts
accepting less desirable and limited options or, worse, countenancing a
fait accompli, are also forboding." (Audubon Society of New Hampshire v.
U.S.A., et al. (1st Cir., No. 76-1347), Order, December 17, 1976, p. 7.
If Seabrook teaches any lesson, it is that large industrial projects
tend to develop a momentum of their own which often rides roughshod over
due process and common sense. NEPA had as its objective and evaluation
of such proposals before the momentum could begin. That objective
failed in Seabrook because the utility was allowed to make major and
substantial commitments to the proposed action before adequate and final
review. What we desperately need is a major overhaul of our licensing
process to eliminate the problems caused at Seabrook.
For the convenience of the Committee, I have attached a brief outline
of one such reform proposal. In 1974 Senator Kennedy proposed another
approach to the problem at the NRC (S.3547) and I have attached a copy
of that proposal.
Thank you for the invitation to appear before your Subcommittee.
(The following attachments were submitted:)
HRG COR
770420 770321
ANTHONY Z. ROISMAN
STAFF ATTORNEY, NATURAL RESOURCES DEFENSE COUNCIL
MR. ROBERT T. JASKE, STUDY COORDINATOR, OFFICE OF STATE PROGRAMS, U.S.
NUCLEAR REGULATORY COMMISSION, WASHINGTON, D.C.
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT -- 1977
(THERMAL POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER
GENERATION) 1977, LETTER FROM ANTHONY Z. ROISMAN (PP 336 TO 338)
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(())
ROISMAN, KESSLER AND CASHDAN,
Washington, D.C. March 21, 1977.
MR. ROBERT T. JASKE,
Study Coordinator,
Office of State Programs
U.S. Nuclear Regulatory Commission,
Washington, D.C.
DEAR BOB: Thank you for sending me the Staff Working Paper on
Efficiency in Federal/State Siting Actions. In many respects the paper
misses what most citizen groups believe are the crucial aspects of what
is admittedly an area in which reform is needed. However, we do not
favor piecemeal reform, particularly reform which favors efficiency at
the expense of quality. Such would clearly be the case if the
legislative minimums outlined on page 5 were adopted. Rather than
attempt a step-by-step criticism of the report, much of which is a
useful explication of some of the areas of disagreement, I will briefly
reiterate the points I made during the Atlanta conference.
First, the process of energy facility siting is the last part of a
process which begins years earlier and in which citizens and government
should, but are not allowed to, participate meaningfully. That process
begins with a determination of the need for energy, the need for
electric energy, and the need for certain sizes and types of facilities
to meet that projected electric need. Those decisions should not be
made by utilities but should be made in adjudicatory hearings in which
citizens and utilities participate and in which funds are provided to
assure that relevant information and viewpoints are included in the
record. There is substantial controversy as to whether these decisions
should be made by local, state, regional or federal authorities. My own
view is that need for energy and need for electricity should be made
regionally and that the federal government should set priorities by
deciding how much energy(()) conservation will be used, how much energy
needs should be met without electricity, how much electric needs should
be met by solar, wind and other renewable resources, how much by coal,
oil, gas, nuclear, etc., and how much electric needs should be met with
central generating facilities. Once all these decisions are made by the
appropriate governmental agency, they should be subject to revision only
to the extent of important, relevant new information.
Second, once these issues are resolved, it will be far easier to
focus on the next issue -- sites -- for that portion of the energy need
which is to be provided by central station electric generation. Here
again, the decision-making process should be adjudicatory, with funds
available to the extent needed to assure a complete record. The problem
of which governmental level makes the decision is extremely difficult.
On the one hand, land use has been traditionally a local or state issue.
On the other hand, electric use crosses state lines and to the extent a
region decides to have more electricity, the region should pay the price
by incurring the disadvantage of facility siting. Nonetheless, some
sites or types of sites are so important to the nation that national
decisions should be made to preserve them. Thus, an extension of
federal legislation for national parks, wilderness areas, wild rivers
etc. should be made to cover all areas of significant national interest.
Comparable legislation to allow state and local governments to preserve
lands of importance to them should also be enacted. The process of
setting aside land should be subjected to the same procedural
protections as the process of selecting energy facility sites.
Essentially, what should be done is to survey those sites which have not
been set aside and identify sites generally acceptable for power
generating facilities.
Third, decisions will have to be made on the acceptability of
particular types of energy facilities. This approval of the design for
coal, oil, hydro, nuclear, solar electric, wind, etc. -- to the extent
national priority setting has determined that any one of these forms of
energy generation is acceptable -- will have to be made. Again, the
procedural protection of adjudicatory hearings and funds to insure a
full presentation of all relevant data and viewpoints must be provided.
Ideally, the decisions on facility design should be made on a generic
basis. However, the constantly changing nuclear technology may make
nuclear power plants unsuited for such "standardized" design approval.
Nonetheless, substantial portions of the nuclear plant design could be
standardized and subjected to resolution in adjudicatory proceedings.
What cannot be resolved in generic proceedings -- which even for
standardized design coal, nuclear, oil, etc. facilities will have to
include the site-related safety considerations -- should be resolved in
conjunction with the final decision on siting the facility at a
particular site. That mechanism is discussed in the next paragraph.
Fourth, through the operation of the preceding mechanisms, the bulk
of the issues relevant to siting a power facility will have been
resolved. That resolution will be binding absent substantial new
relevant information -- essentially the standard now applied to motions
to reopen the record of an adjudicatory proceeding. What remains is the
narrow question of the suitability of the site for the particular
proposed facility. Inasmuch as the site will have already been analyzed
and found generally acceptable, the controversy -- if any -- at this
phase will be over the unique problems of the facility at the site, such
as population characteristics which are incompatible with a nuclear
plant or unique air quality considerations unsuited for a coal facility.
These final phase hearings must also provide the adjudicatory and
funding procedural protections.
Fifth, while the above-described system cannot completely relieve the
pressure on facilities scheduled for construction or operation in the
next few years, it can do a great deal in that direction. For instance,
for any plant whose predicted construction start-up date is more than
two years in the future, there is time to move on step one and three and
to reduce the time for step four. This would require simultaneous
hearings in several different forums. That kind of intense analysis is
only possible if all sides have sufficient funds. It is unrealistic and
unacceptable to expect citizen organizations which have no economic
incentive to express their views to have available sufficient funds to
meaningfully participate in this kind of intense review. Without their
agreement there cannot and will not be a solution to the short-run
decision-making problems which are caused by fighting individual
facility siting(()) decisions with crucial but time-consuming generic
issues. Those individual siting decisions are today the only place
where sufficient procedural protections are provided through full and
essentially fair adjudicatory processes that citizens can justify
expending their limited resources. To release the pressure on those
proccedings, other fair and meaningful forums must be provided. I
should add that the present adjudicatory process does itself need reform
but these reforms are not of the magnitude discussed here and are
apparently beyond the scope of your study.
Finally, I believe the mechanisms discussed above can substantially
eliminate the objectionable overlapping and redundant state and federal
reviews. The key is to take the decision-making process out of the
critical path as much as possible. This can be done without turning
over to the states all of the decisions which are properly federal or
regional. Rather, the sorting out of review responsibility must be done
in a way that equalizes the quality of the review regardless of the
governmental level at which the review is conducted. Some states
clearly do not have the resources or the commitment to conduct fair
review. That uneveness must be corrected before states are allowed to
have the final voice on any subject. Thus, even where state or regional
decisions are warranted, data-gathering and preparation of necessary
reports should continue to be federal until such time as comparable
expertise and commitment are proven to be present in the states.
Combined use of data and combined hearings are certainly acceptable so
long as the combination produces a quality of data and review procedures
at least as high as that of the highest individual review.
I have set forth here the position but not the argumentation in
support of those positions. Perhaps the most important point to make in
support of these positions is that unless there are immediate and
massive reforms along the lines here suggested, citizen disenchantment
with the present decision-making process will reach such levels that the
chaos will clearly get out of hand. In addition to pursuing state and
local legislative actions to block or interfere with facility siting --
such as state moratorium legislation along the currently effective
California model or local prohibitions on nuclear power such as those in
Vermont -- citizens will also exhibit their frustrations with the
present system through direct action comparable to Vietnam War
opposition and European opposition to nuclear power. Such direct action
is only conceivable where the level of frustration with the system makes
it impossible to argue rationally that resort to established legal
procedures is preferable to such direct action. As a lawyer, I can tell
you that we have reached that point. I cannot rationally oppose an
argument for direct action because resort to the NRC licensing process
where citizens are (1) outspent more than 10 to 1, (2) usually have to
fight both Applicants and Staff, (3) do not routinely have presented the
views of Staff members who do not agree with the majority of the Staff
conclusions, and (4) must accept the fact that the Commissioners of the
NRC, all of whom are essentially believers in the need for and benefits
of light-water reactor power plants, will normally stay, review and
reverse major citizen victories before licensing boards or appeal
boards, is inherently fruitless. This must change and it must change
now.
I hope you will fully integrate these brief thoughts into your final
report, at least as an indication of basic disagreement from a large
segment of the environmental and citizen community, with the basic
approach which appears to be the current thrust of the report.
Sincerely,
ANTHONY Z. ROISMAN.
HRG GRA OTH
770420 740529
EDWARD M. KENNEDY US SENATOR
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IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT -- 1977
(THERMAL POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER
GENERATION) 1977, NUCLEAR POWER LICENSING LEGISLATION (PP 338 TO 345)
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CW270032 CW270039
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(From the Congressional Record, Senate, May 29, 1974)
NUCLEAR POWER LICENSING LEGISLATION
Mr. KENNEDY. Mr. President, I send to the desk legislation to
provide one-stop approval for the licensing of nuclear powerplants and
to provide for fuller and more effective public involvement in the
licensing process, including the payment of their costs of
participation.
Currently, both the Joint Committee on Atomic Energy and the
Government Operations Committees are working on legislation affecting
the future operations(()) of the Atomic Energy Commission. I am pleased
at the indications that the Government Operations Commission intends to
recommend the division of the development and regulatory functions of
the AEC. In that regard, I am hopeful that the legislation I am
submitting today, both in the form of a bill directed to the JAEC and an
amendment to S.2744 will be considered by both committees.
I am particularly hopeful that the Government Operations Committee
will incorporate into S. 2744 provisions authorizing the payment of
legal and technical expert fees to public interest intervenors.
The past decade has seen a continuing controversy over the future of
nuclear power. Part of that controversy has centered on the claim by
nuclear power advocates that the licensing and approval procedure of the
Atomic Energy Act is unwieldy and burdensome. The opposing claims from
environmentalists, from a significant segment of the scientific
community and from local community groups has been that nuclear
powerplants are proposed without adequate information and data and
without the public having an opportunity to adequately present their
views on the potential hazards and potential degradation of the
environment resulting from nuclear powerplant construction.
Although statistics presented last year by AEC Commissioner William
O. Doub show that legal challenges accounted for only 4 percent of the
actual delays in 28 nuclear plants scheduled for 1973 operations,
virtually everyone affiliated with the nuclear powerplant licensing
process agrees that the system can be improved, shortened and reformed.
Yet, there is a parallel concern that the changes in the licensing
process cannot be allowed to diminish the right of public interest
groups to be heard.
Legislation already introduced this session focuses almost entirely
on ways to shorten the licensing process, in some cases by removing the
requirement for adjudicatory hearings, in others by eliminating some of
the duplicative hearing requirements now in law, and by encouraging the
development of standard powerplant designs. Unfortunately, those bills
totally ignore the need to bolster the role of public participation in
the licensing process and in some cases seem based on the proposition
that public participation in the licensing process is both unwarranted
and undesirable.
As chairman of the Senate Subcommittee on Administrative Practice and
Procedure, I have long advocated expansion of the role of citizens in
the Federal regulatory process. I have introduced legislation, S. 1421,
to encourage that goal. I believe also that the matter is of paramount
importance when we are considering the issue of nuclear powerplant
siting, construction, and operation.
Essentially, therefore, I have attempted in the legislation being
introduced today to streamline the licensing process by removing
unnecessary and duplicative procedures and, at the same time, to
increase the capacity of the public to make its voice heard in that
decisionmaking process.
First, it eliminates duplicative and mandatory hearings and offers
the opportunity for a one-stop licensing approval of all aspects of
nuclear plant construction and operation.
Second, it requires sufficient leadtime in the preparation of
applications to enable both the applicant and the intervenor to prepare
for any hearings and to permit simultaneous resolution to the National
Environmental Policy Act issues at those adjudicatory hearings.
Third, it offers public interest parties funding to insure that the
technical experts and the legal groundwork necessary to represent the
public interest will be available at the time of any hearing.
It should be emphasized that the concepts of broad public
participation during a single, well-documented hearing are incorporated
as well into the provisions permitting generic hearings to resolve major
issues of safety and design.
The rationale behind the reform in the licensing process has been
made by industrial proponents, by Government energy officials and, to a
certain extent, by the AEC itself. The recent energy crisis has brought
demands for immediate acceleration of the licensing process from former
energy czaar William Simon, from FEO director John Sawhill and President
Nixon.(())
However, it is vital to note once again Commissioner Doub's comments
that most delays do not result from the licensing process but from other
and more traditional obstacles. Thus, of the 28 plants scheduled for
1973 operation, the Commissioner found the following delays:
(Chart accompanying remarks by William O. Doub, Commissioner, U.S.
Atomic Energy Commission, before the Atomic Industrial Forum Annual
Conference, San Francisco, Calif., November 12, 1973.)
CHART 1. -- CAUSES OF SCHEDULE DELAYS IN 28 NUCLEAR
PLANTS SCHEDULED FOR 1973 OPERATION
GRAPHIC OMITTED
Mr. KENNEDY. Even if one were to lump together the 9-month delay
from legal challenges and the 23-month delay from changes in regulatory
requirements, those factors would pale beside the 229 months lost from
other factors.
It seems doubtful that any substantial share of the blame for delays
in the construction and operation of nuclear powerplants can be laid on
public participation in the process.
I firmly believe that full public participation in the licensing
process is not only required for the protection of the public interests,
but for the future of the nuclear power industry as well. It is only
when public fears and concerns as to the safety of nuclear power have
been answered are we likely to see the industry moving much beyond its
current 1-percent share of total energy capacity and 5 percent of our
total electrical generating capacity. The issues of accidents, waste
disposal, sabotage, and theft must be met before the pace of nuclear
power development is accelerated.
The importance of effective public participation can be found in a
wide variety of sources. The Administrative Conference of the United
States in 1971 specifically stated:
"Agency decision-making benefits from the additional perspectives
provided by informed public participation."
The Joint Committee on Atomic Energy in 1972 in its report on S. 3542
stated that --
"It was designed to be responsive to the concerns expressed by
interested members of the public that they not be deprived of an
opportunity for a complete review of the safety and environmental
aspects of the operation of a nuclear power plant, and that the
licensing of nuclear power reactors continues to be the subject of
public proceedings in which members of the public whose interest may be
affected by the proceedings have an opportunity to present their views."
However, the most impressive statements supporting full and informed
public participation come from those who make the licensing decisions
themselves.
Thus, in Con Edison's Indian Point No. 2 operating licensing hearing,
the Atomic Safety and Licensing Appeal Board made the following
statement after the public intervenors challenged the adequacy of the
plant's security system to cope with sabotage:
"Our review of the incamera record convinces that the development of
plant security requirements was influenced considerably by the probing
questions of CCPE's (Citizens Committee for Protection of the
Environment) counsel. The Licensing Board found "reason for some of the
questions and concerns of the Citizens Committee." So do we."
Similarly, in a decision in the Gulf States' Utilities Co. cases, the
Atomic Safety and Licensing Appeal Board answered the charge that the
public has "nothing to contribute" by stating:
"While we fail to see the possible legal relevance of these remarks
to the question of whether petitioners have satisfied the intervention
requirements(()) of Section 2.714(a), we nevertheless cannot leave
unsaid our total disagreement with such a sweeping condemnation of
intervenor participation as being essentially worthless. Our own
experience -- garnered in the course of the review of initial decisions
and underlying records in an appreciable number of contested cases --
teaches that the generalization has no foundation in fact. Public
participation in licensing proceedings not only "can provide valuable
assistance to the adjudicatory process', but on frequent occasions
demonstrably has done so. It does not do disservice to the diligence of
either applicants generally or the regulatory staff to note that many of
the substantial safety and environmental issues which have received the
scrutiny of licensing boards and appeal boards were raised in the first
instances by an intervenor."
Those statements strongly endorse full public participation in the
regulatory process, a goal I have previously endorsed and worked to
achieve.
Therefore, the legislation proposed today seeks to achieve informed
public participation at the earliest possible stage in a way that
insures the elimination of repetitive treatment of previously decided
issues.
The key elements in assuring the adequacy of public participation are
first the requirement that there be early notice and essentially
coterminous participation by all parties from the first filing in the
licensing process. Second, full access by all parties is provided to
all written documents and to meetings concerning the application.
Finally, the costs of participation, primarily the costs of technical
experts, although including legal fees, would be paid by the Commission
under certain circumstances.
The concept of payment of costs to public interest parties has been
endorsed by the Committee of Environmental Rights and Responsibilities
of the ABA and by a committee of the Administrative Conference. In
addition, it is a concept which has been adopted to some extent in the
Regional Rail Reorganization Act passed by the Congress last session, in
the Federal Water Pollution Control Act and in the Clean Air Act.
It also should be noted that the U.S. Supreme Court and other Federal
courts have established a line of precedents for the awarding of legal
fees to attorneys who speak not for a private interest but for the
benefit of the public at large.
In the Wilderness Society v. Morton, (C.A.D.C. decided April 4,
1974), the U.S. Court of Appeals set forth the line of precedents in
which --
"Recognizing their broad equitable power, some courts have concluded
that the interests of justice require fee shifting . . . where the
plaintiff acted as a private attorney general, vindicating a policy that
Congress considered of the highest priority."
The Court cited the following opinion from Knight v. Auciello (supra,
453 F. 2d at 853).
"The violation of an important public policy may involve little by
way of actual damages, so far as a single individual is concerned, or
little in comparison with the cost of vindication ... If a defendant may
feel that the cost of litigation, and, particularly, that the financial
circumstances of an injured party may mean that the chances of suit
being brought, or continued in the face of opposition, will be small
there will be little brake upon deliberate wrongdoing. In such
instances public policy may suggest an award of costs that will remove
the burden from the shoulders of the plaintiff seeking to vindicate the
public right."
In the case of nuclear powerplant licensing, the burden of protecting
the public right usually rests on groups which have difficulty acquiring
the technical experts who are needed to effectively raise issues of
public concern.
Alan S. Rosenthal, chairman of the Atomic Safety and Licensing Appeal
Panel, of the AEC, testified last month before the Joint Atomic Energy
Commission and stated:
"I would think that if some of the responsible intervenors had
greater resources at their disposal they could make more effective
presentations and part of that would be, I suppose, being able to retain
experts to examine the environmental reports and PSAR's and other
documents that are available to the public for inspection before the
proceeding starts."
In fact, the availability of funds is a clear obstacle to full and
adequate public participation in the licensing process. I believe that
the authorization of payment of costs, under reasonable controls, will
be a major insurance that the voice of the public interest will be heard
in licensing decisions.
I ask unanimous consent that the bill be printed in the RECORD at the
conclusion of my remarks.(())
There being no objection, the bill was ordered to be printed in the
RECORD, as follows:
S. 3547. A bill to establish procedures relating to licensing of
certain activities by the Atomic Energy Commission. Referred to the
Joint Committee on Atomic Energy
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
DEFINITIONS
SECTION 1. As used in this Act --
(1) the term "regulatory review process" means the process by which
the Commission reviews and acts upon applications for licenses to site,
construct, manufacture, or operate production or utilization facilities,
including any hearings thereon, beginning with the first filing by any
person requesting or leading to a request for action and ending when the
Commission denies the request or ceases supervision of the activity;
(2) the term "party" means any participant in the regulatory review
process, including the applicant and the Commission staff;
(3) the term "license" means the combination of authorizations which
enable a person to operate a nuclear facility or in the case of a person
not intending to operate a facility, authorization for a site for a
nuclear facility or to manufacture one or more nuclear facilities; and
(4) the term "Commission" means the Atomic Energy Commission.
APPLICATION
SEC. 2. (a) Any person seeking a license to site, manufacture,
construct, or operate a utilization or production facility, as defined
in section 11 of the Atomic Energy Act of 1954, shall file an
application for such license at least 3 years prior to the time of
construction of the facility is contemplated to begin. Any such
application shall include information sufficient to identify the site,
size, and type of the proposed facility.
(b) Upon receipt of a license application, the Commission shall --
(1) publish a notice in the Federal Register indicating the
receipt thereof and affording 30 days in which persons or
organizations may request an opportunity to participate in the
regulatory review process with respect to the license; and
(2) appoint an Atomic Safety and Licensing Board for such
application.
(c) The Commission shall approve for participation in the
regulatory review process any person or organization which has an
interest which may be adversely affected by the construction or
operation of the facility. An untimely petition to participate
may be granted only after consideration of whether there was good
cause for late filing, the likelihood of delay of the regulatory
review process as a result of participation, and the extent to
which the interests to be affected are represented by other
parties.
PARTICIPATION IN REGULATORY REVIEW PROCESS
SEC. 3. All parties to the regulatory review process shall receive
simultaneous service of all documents and written communications
relating to the application received by the Commission or from any
person or party or received from the Commission or by an person or
party. All parties to the regulatory review process shall be given due
notice of any meeting related to the application between the Commission
or any person or party, and minutes of such meetings shall be
distributed to all parties to the regulatory review process. To the
extent any document or other communication required to be distributed
contains information which is subject to disclosure limitations under
any provision of law, it shall be distributed only to parties who sign
agreements to limit disclosure of the information to the extent required
by law.
DISCOVERY
SEC. 4. Any party shall have the right to discover information from
any other party or the Commission to the extent permitted by rules
adopted by the Commission which shall be substantially the same as Rules
26 through 37 of the Federal Rules of Civil Procedure.(())
REQUEST FOR AUTHORIZATION
SEC. 5. (a) Within one year after the filing of the application, the
applicant shall file a request for authorization for at least one of the
following actions:
(1) site selection and preparation;
(2) limited construction activities;
(3) construction or manufacturing of the facility;
(4) amendments to the construction or manufacturing
authorization;
(5) fuel loading and subcritical testing;
(6) low power testing and power ascension testing;
(7) limited operation up to two years;
(8) full-power, full-term operation;
(9) amendments to any operation authorization.
If no such request for authorization is filed within one year, the
application shall be dismissed without prejudice to a subsequent filing.
(b) No limited construction or construction authorization may be
granted unless a prior or simultaneous authorization for the site
selection and preparation has been granted for the same facility. No
operating authority may be granted unless a prior or simultaneous
authorization for construction has been granted for the same facility.
(c) An applicant may request an authorization under subsection (a) at
any time, and may request one or more authorization at one time
including additional authorizations. When a request for authorization
is filed with the Commission, it shall publish in the Federal Register a
notice of receipt of such request and notice of the provisions of
section 2.
HEARINGS
SEC. 6. (a) Within thirty days after receipt of a request for
authorization, any party may file a notice of intent to request a
hearing with respect to the proposed action.
(b) Within thirty days after receipt of all of the material upon
which the Commission and the applicant rely for their respective
positions on the proposed authorization, including any reports or
testimony, any party who previously filed a notice of intent under
subsection (a) shall file a specific statement of the issues relevant to
the proposed authorization, identifying those issues on which he seeks a
hearing, the factual basis for each issue including any direct testimony
to be offered, and the areas of any proposed cross-examination including
an identification by name or expertise of the witness to be
cross-examined. Within fifteen days thereafter, every other party shall
file a detailed statement of his position with respect to the issues
raised by the party and the factual basis for such position including
any additional direct testimony to be offered and the areas of proposed
cross-examination including an identification of the name of the witness
to be cross-examined.
(c) If the applicant opposes the position of the Commission, then he
shall, within 30 days of receipt of the Commission position, comply with
the requirements of subsection (b) of this section applicable to any
party requesting a hearing.
(d) Any party opposing a hearing with respect to any or all issues
may file a motion for summary disposition as to any such issue which
motion shall be governed by a procedure substantially similar to Rule 56
of the Federal Rules of Civil Procedure. Such motion shall be filed
within 15 days following the filing of a specific statement of issues by
a party seeking a hearing.
FINALITY OF DETERMINATIONS
SEC. 7. A motion under section 6(d) shall be granted with respect to
the determination of any issue which could have been raised in
connection with prior proceedings under the same application on the
basis of information then available unless the party opposing the motion
has established the likelihood that substantial additional protection
for the public health and safety, for the common defense or security, or
for the environment could result if its position were upheld and, in
addition, demonstrates --
(1) a significant change in circumstances (including the issuance of
rules and regulations subsequent to the prior proceedings); or
(2) the existence of other special circumstances or public interest
factors.(())
SUFFICIENCY OF EVIDENCE
SEC. 8. (a) An authorization for site selection and preparation
shall not be granted unless information regarding the final design,
method of construction, and proposed operation of the facility is
sufficient to permit an analysis of all factors required by the National
Environmental Policy Act of 1969 and the completion of the cost-benefit
analysis.
(b) Any action taken after the requirements of the National
Environmental Policy Act of 1969 with respect to an application are
satisfied shall not require further compliance with the National
Environmental Policy Act unless the requirements of section 7, relating
to finality, are met with respect to the issues sought to be raised
under the National Environmental Policy Act of 1969.
RELATION TO OTHER LAWS
SEC. 9. With respect to any authorization under section 5(a), the
requirements of the Atomic Energy Act of 1954 and the rules and
regulations of the Commission relevant to each action shall be met
before the action is authorized.
ADMINISTRATION
SEC. 10. After an application has been filed, all legal and factual
issues relating to the application shall be determined by an Atomic
Safety and Licensing Board assigned to the application to the extent
such issues are contested by any party. Decisions of the Atomic Safety
and Licensing Board shall be subject to review by an Atomic Safety and
Licensing Appeal Board upon the filing of a request for review by any
party. Final decisions shall be subject to judicial review in the same
manner as prescribed in section 189 of the Atomic Energy Act of 1954.
JOINDERS
SEC. 11. The Commission may, upon the request of any person or on
its own motion, order commencement of a regulatory review process on any
issues common to several nuclear facilities. The hearings shall be
governed by the same rules applicable to hearings on individual nuclear
plants except that the Commission shall --
(1) include notice of the hearing in publications widely read
by the general population;
(2) allow 60 days for any party to file a request to be part of
the regulatory review process; and
(3) permit any party to participate in the regulatory review
process if its request to participate discloses that its interest
could be affected by resolution of the issues if a nuclear
facility to which the issues raised are relevant were built near
the area with which such party is concerned.
The provisions of sections 2(a) and 6 shall not apply to a proceeding
under this section unless such proceedings were commenced either
directly or indirectly by the Commission, by parties seeking
authorizations under section 5, or by parties reasonably expected to be
seeking such authorizations.
COSTS
SEC. 12. (a) With respect to any regulatory review process or any
hearing held for the purpose of adopting any rule or regulation, whether
governed by section 553 or 554 of title 5, United States Code, the
Commission shall, upon request, pay for the cost of participation,
including attorney's fees, in any hearing or the regulatory review
process of any party, except that the amount paid, if any, shall be
determined with due consideration to the following factors:
(1) The extent to which the participation of the party helped
to develop facts, issues and arguments relevant to the regulatory
review process or hearing.
(2) The ability of the party to pay its own expenses.
(b) The Commission shall establish a maximum amount to be allocated
to each hearing or other proceeding which amount shall be apportioned
among the parties seeking reimbursement of costs based upon the factors
enumerated in subsection (a). The maximum amount established pursuant
to this subsection(()) shall be established and adjusted from time to
time by the Commission with due regard to the following factors:
(1) The actual costs of public participation in hearings based
upon a non-duplicative presentation of opposing viewpoints on all
relevant issues.
(2) The cost of participation in the proceeding of the
Commission's staff and the applicants seeking authorizations under
section 5.
(c) Payment of costs under this section shall be made within 3 months
of the date on which a final decision or order disposing of essentially
all of the matters involved in the hearing is issued by the Commission,
except that if a party establishes that
(1) its ability to participate in the proceeding will be
severely hampered by the failure to receive funds prior to
conclusion of the proceeding; and
(2) there is reasonable likelihood that its participation will
help develop facts, issues and arguments relevant to the
regulatory review process or hearing,
then the Commission shall make from time to time such advance
payments as it deems essential to permit the party to participate
or to continue to participate meaningfully in the proceeding with
due regard to the maximum amount payable for cost of this hearing
and the possible requests for reimbursement of costs of other
parties.
(d) In the case of any judicial proceedings arising out of an appeal
of a decision reached in a regulatory review process or other
proceedings before the Commission, the Court may order the Commission to
reimburse all costs of such proceedings, including attorneys' fees, to
any party which meets the requirements of subsection (a) of this
section.
(e) The provisions of this section shall become effective upon the
adoption by the Commission of regulations implementing them or upon the
expiration of 90 days after the enactment of this section, whichever
first occurs. This section shall apply to all regulatory review
processes, hearing, and court proceedings in which final decisions or
orders disposing of essentially all of the issues involved in the
regulatory review process or hearing or final orders of courts have not
been issued by the Commission or court when this section is enacted and
to all regulatory review processes, hearings and court proceedings
subsequently commenced. In the case of court proceedings in progress
when this section is enacted, the reimbursement of costs provided for in
this paragraph shall apply only to the costs referred to in subsection
(d) and not to costs of the regulatory review process or hearing being
reviewed.
(f) Nothing in this section shall diminish any right which any party
may have to collect any costs, including attorneys' fees, under any
other provision of law.
(g) The authorization to make such payments shall not apply to any
regulatory review processes, hearings for the purpose of adopting any
rule or regulation, or court reviews arising out of such processes or
hearings, if the regulatory review processes or hearings for the purpose
of adopting any rule or regulation commenced later than the three years
after the date of enactment of this Act.
(h) Any decision made pursuant to this section shall be reviewable in
Court to the same extent as any other Commission decision, except that
no stay may be issued based upon any alleged violation of this section
and no court order determining that the provisions of this section have
been violated shall, solely as a result of that determination, require a
reversal of the Commission's decision with respect to any other issue.
(i) There are authorized to be appropriated such sums as may be
necessary to carry out the provisions of this section.
EFFECTIVE DATE
SEC. 13. The provisions of this Act shall be applicable to all
ongoing proceedings for issuance, revocation, modification, amendment,
or revision of construction permits and operating licenses and to all
construction permits and operating licenses already issued to the
maximum extent practicable consistent with the public interest and the
avoidance of unnecessary delay.
HRG
770420
SARAH CHASIS ANTHONY Z. ROISMAN
STAFF ATTORNEY, NATURAL RESOURCES DEFENSE COUNCIL STAFF ATTORNEY,
NATURAL RESOURCES DEFENSE COUNCIL
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT -- 1977
(THERMAL POLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER
GENERATION) 1977, TESTIMONY OF SARAH CHASIS, STAFF ATTORNEY, NATURAL
RESOURCES DEFENSE COUNCIL, AND OTHER (PP 345 to 350) CONTINUATION
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Mr. HEFNER. Thank you, Mr. Roisman.
I have a couple of questions.
One thing that I briefly touched on is, I think, one of our
problems.(())
Yesterday, we had the chairman of the New York Public Service
Commission, and I asked this question then. When biologists do studies
about the effects on streams and lakes -- and in Ms. Chasis' statement
it is stated there would be a reduction of 34 to 50 percent in the
striped bass population and other estimates are anywhere from 3 to 50
percent -- my question is since the people who do these studies
supposedly have the same technology, how can there be such a variance?
It makes it difficult for people who are writing legislation. We are
not experts in the field. We have no idea who is right. It seems to me
that people use the studies to suit the purposes of their argument.
Would you address yourself briefly to that question?
Ms. CHASIS. I would be happy to. I think you are absolutely right
that there is a tremendous problem in this respect. The fact is, and
the biologists who will be testifying tomorrow probably can address this
better than I can, everybody is working with the same data, so it is not
a question of different sides coming in with different sets of data.
But there is just a tremendous amount of room for scientific measurement
and evaluation of the usefulness of the data that have been collected.
There are differences of opinion about certain sets of data as
opposed to others and this has a tremendous impact on the calculations.
For example, one of the major differences that can be isolated in the
separate analyses undertaken by the staff of the Nuclear Regulatory
Commission and Consolidated Edison's consultants is whether there are
compensatory systems that are at work in the river system which
compensate for.the species reduction associated with the power-plant
withdrawals,
To date, there has not been convincing evidence that such mechanisms
are in existence. But the power utility has hypothesized that this is a
general phenomenon observed in other situations and therefore it assumes
that it exists here. There is a basic disagreement over that issue.
That affects the outcome. the results, more than anything else, and, in
a sense, that is not even a question of data interpretation.
There really aren't the data there to support either side of it. It
is a very difficult type of problem.
I have to say that I put more stock in the analysis that has been
undertaken by the regulatory agencies. I do not think that the Nuclear
Regulatory Commission has any particular ax to grind with respect to
those plants.
On the other side, the utility very clearly has an interest in
avoiding the requirement. As long as studies are cheaper than
compliance, then that is going to be the route that the utilities go.
Mr. HEFNER. It just seems that when the utilities do a study, it
supports their argument; when the environmentalists do a study, it
supports their argument. It puts us, particularly, myself, in a very
difficult position because we have to decide what is the right answer.
Ms. CHASIS. First of all, it is not the environmentalists that did
the study to calculate the 34 to 50 percent reduction. It was the staff
of the Nuclear Regulatory Commission. We did have our own consultants
participate in these hearings, but that was not our calculation.
I think that what is important to remember is that there were
extensive hearings, years of hearings, involving this issue before a(())
panel of three judges, the licensing board of the then Atomic Energy
Commission.
They had to judge on the basis of the credibility of the witnesses,
on the basis of the evidence presented, which side's arguments appeared
to be the more accurate.
Mr. ROISMAN. Excuse me, Mr. Hefner. This is a good place to
superimpose the process on the substance.
The problem that you face is inherent in a system in which you have
less than perfect knowledge and in which the body of knowledge that we
did not have when we first started it in 1970 -- when the National
Environmental Policy Act was passed -- the knowledge was so scarce that
we were years behind.
No one suggested that because we did not have a perfect answer that
we ought not to do anything. The purpose of the process, the hearing
board process, is to have the chance to get behind the sort of bare
bones recitation of the statistics which you, as a Congressman, are
likely to see, and to dig into the real differences of opinion. I think
Sarah's statement has helped to explain how there are several levels of
information which contribute to why there is a difference of opinion.
The hearings may have spent 1 or 2 weeks probing the experts to find
out where the parties disagreed and how strongly, and then they made a
decision on the basis of that.
Congress has decided that since those are specific and detailed kinds
of decisions to delegate that responsibility to an agency. And that
hearing board of the Atomic Energy Commission did, in fact, weigh and
balance the competing considerations and reach the conclusion. Despite
the divergences, it was possible for them to reach a decision and I
think that is important.
Mr. HEFNER. I have no argument with your statement, but the thing
that does cause me to be concerned is when people testify before the
subcommittee and we get many different figures and they go from 3 to 40
to 50 percent.
We do not know what procedure they went through. We assume that
everybody uses the same bucket of water for his test.
When people come before this committee, we would like to know if they
use the same technology. And if they do, you should be fairly close,
given all the things that you have talked about.
In the interests of time, you said on page 7 that there were some
100,000 to 200,000 menhaden reported killed between January 28-30, 1972.
What is the importance of this particular fish? Is it economic or
ecological?
Ms. CHASIS. They are used for fish meal. It is economic.
This was just an illustration of one of the more dramatic effects
that plant shutdowns have in terms of the tremendous temperature changes
that produce shock to the systems of fish.
Mr. HEFNER. I have more questions, but I feel sure other members of
the subcommittee have some questions, too. I will ask one more.
You mentioned that about 30 miles fromo the source of the discharge,
that would affect the temperature from 5 to 6o
Ms. CHASIS. No.
The 35-mile stretch is the stretch of the river on which are located
a number of powerplants, so it is not that a discharge from one that
affects that 35-mile stretch.(())
Mr. HEFNER. The combinatoion would affect the water 5o or 6o?
Ms. CHASIS. 4 to 5 .
Mr. HEFNER. And cause kill to fish and the abandonmento of fish
eggs? In the middle of the summer, when temperatures get to 100 , like
last year, how much would the temperature ordinarily change in a river
or stream? Has there been any research done?
Ms. CHASIS. There has been, and thermal water quality standards are
established with the recognition of national variability. What we look
to is what increase over and above that is going to poseo a threat. If
you have got a system which naturally heats up to 90 to 95 in the
summer, presumably the life system of that water boday is adjusted to
that.
The problem comes when you have increases above that, what that can
do. Each State sets thermal standards based on studies of the different
systems that are in that State.
Mr. HEFNER. I have no further questions.
Mr. CLEVELAND.
Mr. CLEVELAND. Thank you, Mr. Chairman. As I understand your
testimony, you consider entrainment and impingement a more serious
environmental problem than thermal pollution. Is that a correct reading
of your statement?
Ms. CHASIS. From my experience directly on the Hudson River, that is
correct. I cannot speak nationally on that issue. I know that it is a
very serious problem which has only in the last 7 or 8 or 9 years become
to be understood.
Mr. CLEVELAND. What do you think Congress was thinking of when they
wrote 316, thermal pollution or entrainment and impingement?
Ms. CHASIS. When I look at the language of 316(b) --
Mr. CLEVELAND. Let us talk about 316(a) first. Refer to the title.
Ms. CHASIS. "Thermal discharges."
Mr. CLEVELAND. Isn't there certainly a strong indication that the
Congress was concerned with thermal discharges because that is what they
entitled the section?
Ms. CHASIS. Well, there is legislative history with reference to the
whole situation which had to do with the entrainment-impingement
problem, so there was certainly a recognition at that time the
entrainment and impingement was a serious problem.
Mr. CLEVELAND. I was interested in your statement on page 2 that a
majority of the organisms will be killed. On what do you base that?
Ms. CHASIS. Studies done by powerplants on the Hudson.
Mr. CLEVELAND. We heard at the Bowline and Roseton plants the
survival was 90 percent because they changed the techniques of testing,
because the previous test contributed to the kill. At least that was
the testimony. Were you here yesterday?
Ms. CHASIS. No; but I have been involved in proceedings where that
statement was made.
That is an untested statement as yet. Based on the testimony and
record produced in the past in the agencies who have had an opportunity
to independently assess it, it has been shown that the majority are
killed.
Mr. CLEVELAND. But you recognize that there are now new testing
techniques and, based on this, this committee was told that those two
plants use the new testing technique. I was quite surprised that they
say the survival is as high as 90 percent.(())
Ms. CHASIS. I am aware that Con Edison and the other utilities doing
work allege that that is the case. All I can say --
Mr. CLEVELAND. Excuse me, I believe they testified that they had
turned to a number of universities for help. I do not think they said
they did it themselves.
Ms. CHASIS. It was consultants that did it for them -- that they
paid.
Mr. CLEVELAND. We are under a 5-minute rule; so I do not mean to be
rough. I want to address 316(b).
As I understand it, your position is that 316(b) gives the
Environmental Protection Agency the power to say that this intake system
is going to seriously damage wildlife and biotic life and you cannot use
it?
Ms. CHASIS. Yes.
Mr. CLEVELAND. Then 316(b) could negate 316(a) because if 316(a)
requirements are met, you could use a once-through cooling system. But
your theory is under 316(b) no way?
Ms. CHASIS. 316(b) is a separate issue. It provides a separate
authority.
Mr. CLEVELAND. I am interested because some of us feel in view of
the fact that we have sections 301, 303, and 306, and State water
quality standards which indicate thermal discharges would be controlled,
and regulations that indicate the type of cooling required to abate
thermal pollution -- then you turn to 316(a).
Congress must have meant something. They meant that if you could
show that 316(a) requirements were met, fine, you could have
once-through cooling and the only thing 316(b) says, if you do have
once-through cooling, you have got to do the best you can with the
intake structure. That is our theory.
What interests me about your testimony, and it is very persuasive in
this regard, is that you specifically point out that the Nuclear
Regulatory Commission, using its powers under NEPA, has moved to protect
fish life in the Hudson because of the intake system, that clearly
spells out the fact that there is no need for 316(b) -- as you have said
there was a need -- because precisely what you want to protect is
protected under NEPA.
Ms. CHASIS. I would like to point out that I disagree vehemently.
Mr. CLEVELAND. You do not disagree with your own testimony?
Ms. CHASIS. No; but the Nuclear Regulatory Commission's regulations
only regulate nuclear generating facilities and many of the facilities
on the Hudson are not nuclear generating facilities. Therefore, it is
essential that we have regulation of this problem under the Water Act.
I don't believe Congress would have sent out a scheme of regulation for
water pollution without taking account of the fact of
entrainment-impingement. If that is not dealt with, our water would be
great, but we would not have the biotic sources that are necessary.
Mr. CLEVELAND. I think you should remember in that connection that
no other industry has the intake problem, it is just the electric
generating industry. Is that not so?
Ms. CHASIS. That is not correct.
Mr. CLEVELAND. No other industry has a regulated intake problem.
Well, I have taken my 5 minutes, but I do feel that your testimony
that it was the Nuclear Regulatory Commission acting under NEPA(()) that
fortifies our position that 316(a) gives an exemption and 316(b)
requires that the best technology be used.
Ms. CHASIS. 316(b), as we see it, was a completely different
problem. We think 316(b) is a clear vehicle for addressing that issue.
(Mr. GINN resumed the Chair.)
Mr. GINN. Mr. Ertel, do you have any questions?
Mr. ERTEL. No.
Mr. GINN. Mr. Levitas?
Mr. LEVITAS. Thank you, Mr. Chairman. I was quite interested in the
excellent testimony of both of these witnesses and I was particularly
pleased to hear the statement by Mr. Roisman suggesting that the
regulatory process itself, as it now exists, creates unnecessary and
serious problems simply because it takes so long to get decisions made.
I think one of the responsibilities of this oversight subcommittee is to
make those types of recommendations which can somehow facilitate quicker
decisions so that the public and the industry can find out as soon as
possible what the conclusions are.
I wonder if you could submit to the committee any specific
recommendations you have for how far that process could be expedited?
Would you be able to do it?
Mr. ROISMAN. Yes; I have given you a brief outline of that in the
letter, and I will give you a lot more detail.
HRG COR
770420 770429
ANTHONY Z. ROISMAN
NATURAL RESOURCES DEFENSE COUNCIL
HOUSE INTERSTATE AND FOREIGN COMMERCE SUBCOMMITTEE
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT -- 1977
(THERMAL POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER
GENERATION) 1977, STATEMENT OF ANTHONY Z. ROISMAN, NATURAL RESOURCES
DEFENSE COUNCIL, PROCEDURAL REFORM (PP 350 TO 359)
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(The following excerpt from testimony by Mr. Roisman, given before
another congressional committee was received for the record:)
STATEMENT OF ANTHONY Z. ROISMAN, NATURAL RESOURCES DEFENSE COUNCIL
PROCEDURAL REFORM
I have had several occasions in the last year to address the issue of
procedural reforms at the NRC. The following testimony is essentially
excerpts from several of those presentations.
There is virtually universal agreement among proponents and opponents
of nuclear reactors that the present conduct of nuclear reactor
regulation is badly in need of a major overhaul. Surprisingly enough,
there is even some agreement on what kind of reforms are required. Both
proponents and opponents are opposed to unnecessary delays in the
decision-making process. In 1974 leading environmental groups supported
legislation introduced by Senator Kennedy (S.3547) to reform the nuclear
reactor licensing process Included in the provisions of that bill were
several provisions which impose harsh burdens on environmental groups
participating in licensing proceedings. Notable among these are:
1. Limitation of NEPA review to site authorization.
2. Prohibition on raising any issue which could have been raised in
previous hearings even if no final plant design or standardized plant
design were previously approved.
3. Requirement to submit virtually the entire case thirty days after
the Staff completes its review.
4. Generic hearings on individual issues (both safety and
environmental), as well as standardized designs.
5. Authorization for site preparation and limited construction
activities at the site prior to authorization for construction.
6. Authorization for limited operation for two years prior to full
power operation and generally a liberalized plan for gradual issuance of
operating authority.
These provisions would benefit all parties, provided that all parties
are equally able to make their case. Thus, S. 3547 also included a
provision allowing payment of the costs of participation of any party to
the proceeding who was in financial need and whose presentation helped
develop facts, issues and arguments relevant to the licensing
proceeding.(())
This latter provision was added as a floor amendment to the Senate
version of the Energy Reorganization Act of 1974 and eventually dropped
in conference with the following comment: "The deletion of title V is
in no way intended to express an opinion that parties are or are not now
entitled to some reimbursement for any or all costs incurred in
licensing proceedings. Rather, it was felt that because there are
currently several cases on this subject pending before the Commission,
it would be best to withhold Congressional action until these issues
have been definitively determined. The resolution of these issues will
help the Congress determine whether a provision similar to title V is
necessary since it appears that there is nothing in the Atomic Energy
Act, as amended, which would preclue the Commission from reimbursing
parties where it deems it necessary."
Since that time the NRC has recognized that it has the legal
authority to provide financial assistance to participants and has sought
funds in this year's budget for payment of those costs in connection
with the GESMO proceeding. Other federal agencies now providing
financial assistance to persons appearing before the agency or
contemplating such action include the Federal Trade Commission
(authorized by Congress), Federal Energy Administration (funds granted
to Consumers Union), Health, Education & Welfare (proposals being
considered), and Environmental Protection Agency (proposals being
considered). In short, the provision of financial assistance to
participants in agency proceedings is fast becoming the norm, and for
good reason.
First, all financial assistance programs are based upon the principle
that funds should be provided only to the extent that information is
obtained which is relevant to the issues in the proceeding and which
would not otherwise be presented. All federal agencies have a duty to
develop a complete record as a basis for making their decisions. One
Appeals Courts described the obligation as follows: /1/ "The Commission
must see to it that the record is complete. The Commission has an
affirmative duty to inquire into and consider all relevant facts."
((/1/ Scenic Hudson Preservation Conference v. Federal Power
Commission. 354 F.2d 608 (2d Cir. 1965).))
Thus, if funds are provided only when relevant information is
provided, the extent of the funding will be directly dependent upon the
quality, depth and breadth of the presentations of the agency staff. To
the extent they do not present all relevant data, the agency record is
defective and financial assistance to others to develop that record is
essential.
Second, without in any way denigrating the work of the staff of any
federal agency, the fact is that frequently a citizen group presents
data in the proceeding which is not only relevant to the decision but
affirmatively improves the quality of the decision. The Atomic Safety
and Licensing Appeal Board of the NRC reviews every NRC licensing board
decision and it concluded: /2/ "Public participation in licensing
proceedings not only "can provide valuable assistance to the
adjudicatory process," but on frequent occasions demonstrably has done
so. It does no disservice to the diligence of either applicants
generally or the regulatory staff to note that many of the substantial
safety and environmental issues which have received the scrutiny of
licensing boards and appeal boards were raised in the first instance by
an intervenor."
((/2/ Gulf States Utility Co. (River Bend Units 1 & 2), ALAB-183,
RAI-74-3.))
In the still-pending proceeding involving the Seabrook Nuclear Power
Station, citizen participants raised issues regarding the adequacy of
the seismic analysis of the site. Their witnesses included the leading
experts on earthquake predictions and vibratory ground motion from
earthquakes. The latter expert was so persuasive that the Staff now
uses his analysis for calculating vibrations from earthquakes. But for
citizen participation, the views of these experts would not have been
presented.
Third, without financial assistance, the views of many concerned
citizens will never be heard or worse, will be heard but without
adequate factual and legal support. In a study prepared for the
National Science Foundation on citizen involvement in nuclear reactor
licensing proceedings, the authors concluded: /3/ "The imbalance in
scientific, technological, and economic resources between the proponents
of nuclear power and their opponents make it much more likely that the
proponents will make a convincing case in support of a(()) proposed
plant than that the opponents will present compelling arguments against
it."
((/3/ Citizens Groups and the Nuclear Power Controversy -- Uses of
Scientific and Technological Information. Steven Ebbin and Raphael
Kasper, p. 250.))
Fourth, an under-funded citizen group often requires more time to
develop its position than a well-funded group. Without the resources to
independently develop facts and present their own expert judgment,
citizens rely upon lengthy discovery procedures and extensive
cross-examination -- a process made overly long by the attempt to
extract facts unfavorable to a party from that party's own experts.
These procedures are used much more than citizens want to use them
simply because they lack the financial resources to do otherwise.
The Congress should move positively to correct the present situation
which results in decisions based upon inadequate factual information,
which effectively forecloses meaningful participation by citizens
concerned about nuclear power, and which unnecessarily prolongs nuclear
reactor licensing and rulemaking proceedings. I urge this Committee to
recommend an amendment to the NRC budget proposal to provide funds for
citizen participation in all NRC proceedings. /4/
((/4/ In the NRC decision authorizing financial assistance in the
GESMO proceeding, Commissioner Gilinsky recommended that financial
assistance be extended to all NRC proceedings.))
The inclusion of a proper mechanism to assure adequate financial
resources for full development of the record does not solve all of the
problems now plaguing energy facility siting. A far more comprehensive
reform package is required.
First, the process of energy facility siting is the last part of a
process which begins years earlier and in which citizens and government
should, but are not allowed to, participate meaningfully. That process
begins with a determination of the need for energy, the need for
electric energy, and the need for certain sizes and types of facilities
to meet that projected electric need. Those decisions should not be
made by utilities but should be made in adjudicatory hearings in which
citizens and utilities participate and in which funds are provided to
assure that relevant information and viewpoints are included in the
record. There is substantial controversy as to whether these decisions
should be made by local, state, regional or federal authorities. My own
view is that need for energy and need for electricy should be made
regionally and that the federal government should set priorities by
deciding how much energy conservation will be used, how much energy
needs should be met without electricity, how much electric needs should
be met by solar, wind and other renewable resources, how much by coal,
oil, gas, nuclear, etc., and how much electric needs should be met with
central generating facilities. Once all these decisions are made by the
appropriate governmental agency, they should be subject to revision only
to the extent of important, relevant new information.
Second, once these issues are resolved, it will be far easier to
focus on the next issue -- sites -- for that portion of the energy need
which is to be provided by central station electric generation. Here
again the decision-making process should be adjudicatory, with funds
available to the extent needed to assure a complete record. The problem
of which governmental level makes the decision is extremely difficult.
On the one hand, land use has been traditionally a local or state issue.
On the other hand, electric use crosses state lines and to the extent a
region decides to have more electricity, the region should pay the price
by incurring the disadvantage of facility siting. Nonetheless, some
sites or types of sites are so important to the nation that national
decisions should be made to preserve them. Thus, an extension of
federal legislation for national parks, wilderness areas, wild rivers,
etc. should be made to cover all areas of significant national interest.
Comparable legislation to allow state and local governments to preserve
lands of importance to them should also be enacted. The process of
setting aside land should be subjected to the same procedural
protections as the process of selecting energy facility sites.
Essentially, what should be done is to survey those sites which have not
been set aside and identify sites generally acceptable for power
generating facilities.
Third, decisions will have to be made on the acceptability of
particular types of energy facilities. This approval of the design for
coal, oil, hydro, nuclear, solar electric, wind, etc. -- to the extent
national priority setting has determined that any one of these forms of
energy generation is acceptable -- will have to be made. Again, the
procedural protection of adjudicatory hearings and funds to insure a
full presentation of all relevant data and viewpoints must be
provided.(()) Ideally, the decisions on facility design should be made
on a generic basis. However, the constantly changing nuclear technology
may make nuclear power plants unsuited for such "standardized" design
approval. Nonetheless, substantial portions of the nuclear plant design
could be standardized and subject to resolution in adjudicatory
proceedings. What cannot be resolved in generic proceedings -- which
even for standardized design coal, nuclear, oil, etc., facilities will
have to include the site-related safety considerations -- should be
resolved in conjunction with the final decision on siting the facility
at a particular site. That mechanism is discussed in the next
paragraph.
Fourth, through the operation of the preceding mechanisms, the bulk
of the issues relevant to siting a power facility will have been
resolved. That resolution will be binding absent substantial new
relevant information -- essentially the standard now applied to motions
to reopen the record of an adjudicatory proceeding. What remains is the
narrow question of the suitability of the site for the particular
proposed facility. Inasmuch as the site will have already been analyzed
and found generally acceptable -- the controversy -- if any -- at this
phase will be over the unique problems of the facility at the site, such
as population characteristics which are incompatible with a nuclear
plant or unique air quality considerations unsuited for a coal facility.
These final phase hearings must also provide the adjudicatory and
funding procedural protections.
Fifth, while the above-described system cannot completely relieve the
pressure on facilities scheduled for construction or operation in the
next few years, it can do a great deal in that direction. For instance,
for any plant whose predicted construction start-up date is more than
two years in the future, there is time to move on step one and three and
to reduce the time for step four. This would require simultaneous
hearings in several different forums. That kind of intense analysis is
only possible if all sides have sufficient funds. It is unrealistic and
unacceptable to expect citizen organizations, which have no economic
incentive to express their views, to have available sufficient funds to
meaningfully participate in this kind of intense review. Without their
agreement, there cannot and will not be a solution to the short-run
decision-making problems which are caused by fighting individual
facility siting decisions with crucial but time-consuming generic
issues. Those individual siting decisions are today the only place
where sufficient procedural protections are provided through full and
essentially fair adjudicatory processes that citizens can justify
expending their limited resources. To release the pressure on these
proceedings, other fair and meaningful forums must be provided.
Finally, I believe the mechanisms discussed above can substantially
eliminate the objectionable overlapping and redundant state and federal
reviews. The key is to take the decision-making process out of the
critical path as much as possible. This can be done without turning
over to the states all of the decisions which are properly federal or
regional. Rather, the sorting out of review responsibility must be done
in a way that equalizes the quality of the review regardless of the
governmental level at which the review is conducted. Some states
clearly do not have the resources or the commitment to conduct fair
reviews. That unevenness must be corrected before states are allowed to
have the final voice on any subject. Thus, even where state or regional
decisions are warranted, data gathering and preparation of necessary
reports should continue to be federal until such time as comparable
expertise and commitment are proven to be present in the states.
Combined use of data and combined hearings are certainly acceptable so
long as the combination produces a quality of data and review procedures
at least as high as that of the highest individual review.
I have set forth here the position but not the argumentation in
support of these positions. Perhaps the most important point to make in
support of these positions is that unless there are immediate and
massive reforms along the lines here suggested, citizen disenchantment
with the present decision-making process will reach such levels that the
chaos will clearly get out of hand. In addition to pursuing state and
local legislative actions to block or interfere with facility siting --
such as state moratorium legislation along the currently effective
California model or local prohibitions on nuclear power such as those in
Vermont -- citizens will also exhibit their frustration with the present
system through direct action comparable to Vietnam War opposition and
European opposition to nuclear power. Such direct action is only
conceivable(()) where the level of frustration with the system makes it
impossible to argue rationally that resort to established legal
procedures is preferable to such direct action. I cannot rationally
oppose an argument for direct action because resort to the NRC licensing
process is inherently fruitless due to the fact that citizens are (1)
outspent more than 10 to 1, (2) usually have to fight both Applicants
and Staff, (3) do not routinely have presented the views of Staff
members who do not agree with the majority of the Staff conclusions, and
(4) must accept the fact that the Commissioners of the NRC, all of whom
are essentially believers in the need for and benefits of light-water
reactor power plants, will normally stay, review and reverse major
citizen victories before licensing boards or appeal boards. This must
change and it must change now.
One particularly important part of the review process which has
caused difficulty is the EPA/NRC overlapping jurisdiction of nuclear
reactors. The preceding principles can be applied to relieve the
problem. Several steps could be taken under existing law to avoid at
least some of the problems inherent in the NRC review preceding or
overlapping the EPA review. First, EPA and NRC should require utilities
to file for effluent discharge permits or exceptions at least a year
prior to submitting a license application to NRC and should notify NRC
of the filing. Second, EPA and NRC should immediately inform the public
and concerned federal and state agencies in an effort to determine
whether the permit application is likely to be controversial and, if so,
on what grounds. This effort must involve a serious outreach by both
agencies to identify any possible controversy. Third, where EPA or NRC
believes a controversy is possible, that serious factual issues are
involved and that their resolution may overlap the NRC NEPA review, they
should establish a joint NRC/EPA staff effort to develop (and where
appropriate bring in concerned states) from the applicant, the concerned
citizens and their own resources, all of the facts which are essential
to the following determinations:
1. What discharge permit, if any, should be issued by EPA;
2. What will be the environmental and economic costs of the permit
conditions imposed by EPA.
The data for these two determinations will be overlapping and will
often involve an investigation of arange of possible effluent discharge
systems. Fourth, once the data is gathered, EPA/NRC and any interested
states should hold a joint hearing governed by a combination of the
rules of all those agencies which assures that the maximum procedural
rights are preserved. /5/ Fifth, first EPA and then the state, if any,
would reach their conclusions on the issues. NRC would then use the
data obtained in the hearing as the basis for its inputs in the draft
environmental statement on the impacts of meeting EPA and state effluent
limitations. Further NRC hearings on these impacts would be governed by
the traditional doctrine of res judicata.
((/5/ In cases which are controversial, the legislative hearing
format of EPA is merely a waste of time since the losing party will
amost certainly demand the right to a de novo review with an
adjudicatory hearing. Thus, there is no sense to the legislative
hearing in such a case and that step is essentially dropped. If there
is any question that all parties will agree to this, the statute should
be amended to allow EPA to drop the legislative hearing and go
immediately to adjudicatory hearings in controversial cases.))
A principal benefit of this scheme is that there is an incentive to
EPA and NRC to be thorough and efficient in their review because until
the review is completed, a licensing decision on the facility cannot be
reached. By requiring early filing of the discharge permit application,
there is time to develop the facts and have the hearings without
delaying the NRC review.
Finally, reforms must be made in the methods by which persons are
selected to hold key decision-making and advisory positions with the
NRC. The NRC now selects the members of the Advisory Committee on
Reactor Safeguards and of the Atomic Safety and Licensing Board and
Atomic Safety and Licensing Appeal Board panels with only the most
limited public participation. The NRC should actively publicize
vacancies and should solicit public suggestions to fill the vacancies.
The NRC should also establish, with public input, regulations defining
the criteria to be used in making selections. Once the NRC has a "short
list" of candidates for a vacancy, those names should be publicized and
comments solicited on each candidate. Unless the public has confidence
in the decision-makers, it cannot have confidence in the decision-making
process.
The NRC is a troubled agency. The President has a unique opportunity
to set it straight because within the next few months he can fill three
of five vacancies and appoint a new Chairman. The NRC budget is also
crucial because(()) Congress can, in approving a budget, insert specific
legislative mandates for citizen funding, on-site inspectors, and better
staff review, and make clear its general preference for other reforms.
My purpose today was to set forth briefly the kind of reforms which are
needed. I appreciate the opportunity to share these concerns with you.
Mr. ROISMAN. I should make clear that I think the touchstone is not
speed but fairness. I do not think a long hearing is fair to either
side.
There is even a more serious element on fairness and that is that
citizens do not have financial resources to represent essentially
non-economic interest. The bill that is in the Senate as S.270 and
similar legislation is an important part of making this a fair process
for people who have legitimate differences of opinion and want to debate
them and get them resolved, and go on to decisionmaking.
Mr. LEVITAS. I am very much in support of that.
On the question of fairness, it seems to me a consideration of all
basic aspects of the decision, certainly those which have the most
far-reaching effects, should at some point be given consideration. I am
sure you agree with that. Is that correct?
Mr. ROISMAN. Yes.
Mr. LEVITAS. I recently came across a U.S. Supreme Court decision
dealing with the Environmental Protection Agency, Union Electric Co. v.
The Environmental Protection Agency. I am sure you are familiar with
it. While it dealt with the Clean Air Act, I think it has some aspects
to it which raise questions in my mind as applied to the Federal Water
Pollution Control Act.
In this case, the Union Electric Co., in St. Louis, Mo., was under an
Environmental Protection Agency mandate to meet certain ambient air
standards under a plan that was approved by the Administrator to build a
new generating plant which would supply a major portion of the electric
energy to eastern Missouri. There was the question in their petition in
court of whether there were economically or technologically feasible
ways to meet those standards.
The question of who was right or wrong was not discussed, but it was
assumed to be true that there was no economical or technological way
that the company could meet those standards.
When the case got to the Supreme Court, the petitioner, the Union
Electric Co., could not raise the claim of technological or economic
feasibility. They pointed out, referring to a case in which NRDC was
involved, Train v. NRDC, there was to be a technology forcing character
to the act. So how could they have raised that question earlier with
the Administrator?
In other words, could they have said to the Administrator before he
made his decision, there is no way we can meet these standards and,
therefore, we have to have some way to handle this. The Supreme Court
said in that case that no one raised it with the Administrator.
It is sort of a Catch 22. We -- the Supreme Court -- cannot consider
it now because you did not raise it with the Administrator. But you
could not raise it with the Administrator. It seems to me technological
and economic feasibility is an issue which fundamentally should have
been raised.
Don't you think the decision by the court needs to be changed so that
due process could be had?(())
Mr. ROISMAN. I am not an expert. I have only once been involved in
any type of Clean Air Act litigation. I will get the two lawyers in our
Washington office and New York office to provide you with a detailed
answer to the question, one with regard to the Clean Air Act, and I
assume you are also interested in clean water as well?
(The following was received for the record:)
NATURAL RESOURCES DEFENSE COUNCIL, INC.
Washington, D.C., May 2, 1977.
Representative ELLIOTT LEVITAS,
Cannon House Office Building,
Washington, D.C.
DEAR MR. LEVITAS: In the course of his testimony before you in the
House Committee on Public Works and Transportation Subcommittee on
Investigation and Review, Anthony Roisman promised to have me respond to
a question you asked on behalf of the Committee about the recent Supreme
Court Decision in the case of Union Electric Co. v. Environmental
Protection Agency, 96 S.Ct. 2518 (1976), concerning the Clean Air Act.
In that case, the Union Electric Company argued, as a defense to an
enforcement action, that the emission limiting regulations in the State
Implementation Plan for Missouri should not be applied to one of its
facilities because the Administrator had approved the State's
Implementation Plan without considering whether compliance with those
regulations was technologically feasible. The Supreme Court rejected
this argument, holding that in reaching a decision to approve a State
Implementation Plan, EPA was free to consider only whether or not the
requirements of the Plan, if implemented, would assure that healthful
air quality would be attained.
Your question suggested that this decision was unfair, because it
would prevent the Company from raising the issue of whether it was
technologically or economically feasible to achieve the emission
reductions required by the State Plan. If that were in fact the case,
we might be inclined to agree with you. But it is not. To the
contrary, the Company passed up two opportunities to express its views
in favor of pursuing the litigation found unwarranted by the Supreme
Court.
To understand why the Supreme Court was correct, it is important to
understand precisely what Union Electric held. What the Court held was
that EPA could not consider technological or economic feasibility in
deciding whether to approve a State Implementation Plan. But the
statute allows these issues to be raised in other contexts and forums.
A careful reading of the Court's opinion demonstrates that the Court
knew this, and relied upon it in reaching its decision.
First, you should understand that by the time a proposed State
Implementation Plan reaches EPA for its approval or disapproval. it
must, under the Clean Air Act, have been subjected to public hearings
held by the State. EPA regulations have since 1971 encouraged the
States to take into account, during the formulation of their State
Plans, the issues of technological and economic feasibility;" and most
State air pollution control laws require the State to do so. This
division of responsibilities means that the State, which knows better
the relative costs of achieving emission reductions at different of the
facilities located within its jurisdiction, is one to decide how the
emission reductions needed to assure healthful air quality can most
inexpensively be achieved. EPA's responsibility is limited to assuring
that the total emission reductions required by the Plan will be
sufficient to assure that the ambient air quality (health-related)
standards will be met. As you know, this is a typical division of
responsibilities within the Clean Air Act, which in most instances
provides for State initiative, with EPA confined to assuring that the
overall goals of the law will be achieved.
Second, you should realize that if a company is of the opinion that
the emission limitations applicable to its facilities cannot feasibly be
achieved, it may request the State to amend its Implementation Plan to
change these limitations. Such a request may be made at any time. The
State is free to amend its Plan at any time, so long as the total
emission reductions called(()) for in the amended plan remain sufficient
to assure healthful air quality. See section 110(a)(3), 42 U.S.C.
section 1857c-5(a)(3).
Assuming that the State's original calculations as to how much
emission reduction is necessary to meet the health standards was
accurate, however, relaxing the emission limitations applicable to one
source would require the State to impose more stringent emission
limitations on some other pollution source. Such a change would no
doubt be opposed by the source that would be subjected to more stringent
requirements, which may well explain why Union Electric did not pursue
an amendment to the Missouri Plan. But of course the possibility that
some other pollution source would oppose the amendment does not rise to
the level of a due process objection.
Two other factors seem to me important to keep in mind in thinking
about the Union Electric decision. First, the Court (correctly, in my
opinion) felt that its decision was critical to protect the entire
scheme of the Act. The point of the statute, after all, was to curtail
emissions of health endangering pollutants within five to seven
years"after it was passed. As the Union Electric case dramatically
illustrates, this purpose could be easily frustrated if pollution
sources could have chosen to ignore raising feasibility issues at the
time when the plan was formulated, waiting instead until their
noncompliance had finally triggered State or federal enforcement Action.
Holding for the Company would have opened up the State Plans for every
State, seven years after the statute was passed, to ad hoc destruction
in case-by-case litigation over issues that could and should have been
raised long ago. Given the continuing availability of a request for a
Plan revision as a means of raising these issues, the Court could hardly
have ruled any other way.
Second, I cannot withhold comment on the underlying issue of whether
the measures protested by the Company in this case were in fact
technologically or economically infeasible. Your comment suggested that
the Court assumed, for the purposes of its discussion, that the
Company's claim was true. No such assumption was necessary, nor was it
made. What the Company claimed would be required, the installation of a
scrubber, has been done by two dozen power plants across the country
already, and is being planned or undertaken in six dozen other
instances. Although this technology is still in its first generation,
installed first generation scrubbers have operated for as much as four
years now with reliability records as good as 90% -- considerably better
than the reliability of most power plant boilers, which are usually
available for operation about 70% of the time.
In other words, it is my opinion that Union Electric chose to raise
its claim in the way it did -- a suit in the Court of Appeals over a
legal issue, where there could be no fact-finding -- rather than in the
context of a request for a revision of the State Plan, precisely because
it knew that it could not have sustained its claims as to technological
or economic infeasibility in a forum where the real facts would have
inevitably come out. Obviously, the Court had no way of knowing this,
nor did its decision rest on an assessment of the facts such as the one
I present. But the Court may well have wondered, if the Company's case
was so compelling, why it chose to avoid a forum where it might have
been given the chance to make it.
For a more complete overview of how the Act handles the issue of
technological and economic feasibility than I can give here, I commend
to you the attached article by Professor Sam Bleicher in the Harvard Law
Review. Professor Bleicher, writing before the Union Electric decision,
reached the same conclusion that the Court did.
I hope that these comments respond adequately to your questions.
Sincerely yours.
RICHARD E. AYRES,
Staff Attorney.
Mr. LEVITAS. The reason I raised it in this context is that I really
think it goes to the EPA's implementation of what section 316 is talking
about.
Yesterday we heard from Mr. Kahn of the New York Public Service
Commission that they interpret certain of the provisions of(()) the
Water Pollution Control Act as requiring an absolute standard, an
absolute certainty.
We compared it to a Delaney type of amendment, with no flexibility,
and if that ends up being the construction the court puts on it, then we
have the same type of situation that we have in the Clean Air Act.
I would appreciate some response on that.
Two last points: You, in your testimony, make the point that there
is, and I agree, a national policy involved here and that in reaching
the decisions the agencies involved must implement that national policy.
On the other hand, I agree with Mr. Cleveland that State agencies are
certainly capable of implementing national policy.
You are not suggesting, I take it, that the procedures of State
certification, State approval, subject to the guidelines of discharge
standards, should be abandoned?
Mr. ROISMAN. No; certainly not.
What I suggested in the written testimony was that we devise a
mechanism by which the States, the Environmental Protection Agency, and
the Nuclear Regulatory Commission, hold joint hearings and let them each
make their decisions as required under the law.
An example is the Seabrook case. We had a full set of hearings
before the State, before the Nuclear Regulatory Commission, and before
the Environmental Protection Agency. They came out with three different
results. That was partly because the evidence in each of those three
proceedings was different, and that is because you didn't have them
working from a common data base.
That could have been changed with a better process, one that worked
more efficiently with more preknowledge on the part of the utility of
what it would have to do and on the part of the public as to what would
have to be done.
Mr. LEVITAS. That is an excellent suggestion.
It came up yesterday in the New York testimony about the
Environmental Protection Agency's position that they would not get
involved in the approval process that was being handled by the State
agency -- I think it was regarding the Sterling plant -- but they were
going to sit back and wait until they had gone through the entire
process before EPA participated.
Now, there is some question of data insufficiency.
Is the Natural Resources Defense Council involved in the snail darter
business in TVA?
Ms. CHASIS. No.
Mr. GINN. Mr. Cornwell.
Mr. CORNWELL. Thank you, Mr. Chairman. All of my questions have
been asked by the different members of the subcommittee up here, but I
just want to make one statement to you both, and I will continue to say
it as I said it yesterday, and I already have said it once today.
You hit on it, Mr. Roisman. The key to the whole situation is
citizen participation. The more participation we have, the better it
is.(())
Mrs. Thompson was here yesterday supporting Seabrook, and she
testified how she had gone through an extensive program statewide to
educate the people as to what actually is going on, and why there is a
need over and above the unemployment situation in the State of New
Hampshire.
I think it is imperative that all Members of the Congress get on this
education bandwagon and that all groups such as yours do likewise and
provide an atmosphere and environment for good, progressive,
constructive debate so we all can find out what both sides of the issues
are and work together for a reasonable solution.
This way I think we can do a lot to dampen the regulatory agency's
control by having the citizen, the average, everyday, run-of-the-mill,
on-the-street-type citizen voice his opinions to the Members of
Congress. In that way the Mbmbers of Congress might be able to regulate
the regulatory agencies.
I strongly suggest that you fully participate in an educational
effort to make people aware of what is actually going on.
Thank you, Mr. Chairman.
Mr. GINN. Ms. Chasis and Mr. Roisman, on behalf of the subcommittee,
we thank you for being here. We appreciate the work of your
organization and we thank you for your excellent presentation.
Ms. CHASIS. Thank you.
Mr. ROISMAN. Thank you.
Mr. GINN. We will be in recess for a few minutes while we prepare
for the next set of witnesses.
(A brief recess was taken.)
Mr. GINN. The hearing will resume.
Our next panel of witnesses is from the U.S. Environmental Protection
Agency, headed by Stanley W. Legro, Assistant Administrator for
Enforcement.
Will you and your associates please stand then we will get on with
the introductions.
I would like to administer the oath.
Do you solemnly swear the testimony you will give to the subcommittee
will be the truth, the whole truth, and nothing but the truth, so help
you God?
Mr. LEGRO. I do.
Mr. SCHAFFER. I do.
Mr. MILLER. I do.
Mr. McGLENNON. I do.
Mr. THOMPSON. I do.
Mr. LAING. I do.
Mr. FLYE. I do.
Mr. ZELLER. I do.
Ms. GINSBERG. I do.
Dr. MILBURN. I do.
Mr. GINN. Mr. Legro, Assistant Administrator for Enforcement.
Mr. Legro, would you like to introduce for the record and for the
benefit of the subcommittee those who are with you today, sir?
HRG
770420
STANLEY W. LEGRO ROBERT B. SCHAFFER JEFFREY G. MILLER JOHN A. S.
MCGLENNON ROBERT C. THOMPSON HARLEY F. LAING RICHARD A. FLYE HOWARD
ZELLER GAIL C. GINSBERG GARY S. MILBURN
ASSISTANT ADMINISTRATOR FOR ENFORCEMENT, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY DIRECTOR, EFFLUENT GUIDELINES DIVISION, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY DEPUTY ASSISTANT ADMINISTRATOR FOR WATER
ENFORCEMENT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGIONAL
ADMINISTRATOR, REGION I, BOSTON, UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY REGIONAL COUNSEL, REGION I, BOSTON, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY ASSISTANT REGIONAL COUNSEL, REGION I, BOSTON, UNITED
STATES ENVIRONMENTAL PROTECTION AGENCY CHIEF, WATER ENFORCEMENT BRANCH,
REGION II, NEW YORK, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
DEPUTY DIRECTOR, ENFORCEMENT REGION IV, ATLANTA, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY CHIEF, LITIGATION UNIT, LEGAL SUPPORT
SECTION, REGION V, CHICAGO, UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY AQUATIC BIOLOGIST REGION V, CHICAGO, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, TESTIMONY OF STANLEY W. LEGRO, ASSISTANT ADMINISTRATOR FOR
ENFORCEMENT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND OTHERS
(PP 360 TO 376)
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95-217
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CW270054 CW270070
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TESTIMONY OF STANLEY W. LEGRO, ASSISTANT ADMINISTRATOR FOR
ENFORCEMENT; ROBERT B. SCHAFFER, DIRECTOR, EFFLUENT GUIDELINES
DIVISION; JEFFREY G. MILLER, DEPUTY ASSISTANT ADMINISTRATOR FOR WATER
ENFORCEMENT; JOHN A. S. McGLENNON, REGIONAL ADMINISTRATOR, REGION I,
BOSTON; ROBERT C. THOMPSON, ESQ., REGIONAL COUNSEL, REGION I, BOSTON;
HARLEY F. LAING, ASSISTANT REGIONAL COUNSEL, REGION I, BOSTON; RICHARD
A. FLYE, CHIEF WATER ENFORCEMENT BRANCH, REGION II, NEW YORK; HOWARD
ZELLER, DEPUTY DIRECTOR, ENFORCEMENT, REGION IV, ATLANTA; GAIL C.
GINSBERG, CHIEF, LITIGATION UNIT, LEGAL SUPPORT SECTION, REGION V,
CHICAGO; AND DR. GARY S. MILBURN, AQUATIC BIOLOGIST, REGION V, CHICAGO,
ALL OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Mr. LEGRO. Thank you very much, Mr. Chairman.
In addition to myself, I have on my right Jeffrey G. Miller, who is
the Deputy Assistant Administrator for Water Enforcement. Mr. Miller
previously served as Regional Enforcement Director of region I.
On my left I have Mr. Robert B. Schaffer, who is Director of the
Effluent Guidelines Division. Mr. Schaffer previously was Director of
the Permits Division.
Also giving statements this morning will be John A. S. McGlennon, who
is the Regional Administrator for region I and Ms. Gail C. Ginsberg, who
is the chief of our litigation unit, legal support section, in our
region V office.
Also present to answer any questions that committee members might
have are Mr. Richard A. Flye, Chief of the Water Enforcement Branch in
our region II and Mr. Howard Zeller, Deputy Director of Enforcement, in
our region IV office.
Mr. GINN. Mr. Legro, and ladies and gentlemen, we welcome you all.
We are delighted to have you here. We look forward to hearing your
testimony and we will ask you to proceed as you see fit.
Mr. LEGRO. Thank you very much, Mr. Chairman. Today, my testimony
will discuss the Environmental Protection Agency's water pollution
control program with respect to the steam electric power industry.
We will be prepared to submit any additional information that you or
the subcommittee would like to provide you with any current data
concerning the operation of the Environmental Protection Agency's
program with regard to the steam electric industry. Also, Mr. Miller
and Mr. Schaffer will be prepared to answer any questions about our
national programs. The regional representatives will be prepared to
answer any specific questions about particular plants. After I finish,
Mr. McGlennon and Ms. Ginsberg would like to make brief statements.
Mr. GINN. We will be delighted to hear from Mr. McGlennon and Ms.
Ginsberg.
Mr. LEGRO. When Congress enacted the Federal Water Pollution Control
Act - FWPCA -- in 1972, it stated an intention: "to restore(()) and
maintain the chemical, physical, and biological integrity of the
nation's waters." To achieve this goal, the act specified the general
rule that the discharge of any pollutant would be prohibited unless
authorized by a permit. The national pollutant discharge elimination
system -- NPDES -- permit could be issued if the discharge would meet
the requirements of the FWPCA, including section 301 or 402(a)(1)
effluent limitations and section 306 new-source performance standards.
Congress, in section 502(b), specifically recognized that heat was a
pollutant to be regulated by the act. As a result, both chemical and
thermal discharges were brought within the coverage of the FWPCA. Under
section 316(a), thermal effluent limitations may be modified to a less
stringent level if it can be shown that they are sufficient to protect a
balanced, indigenous population of fish, shellfish, and wildlife.
Steam electric-generating plants can have three major types of
adverse effects upon the aquatic environment when they use large amounts
of cooling water.
First: The intake of cooling water by a facility can cause the
entrapment and impingement of fish upon the plant's intake structure.
In some circumstances this hazard can result in a substantial loss of
valuable sport or commercial fish species.
Second: Entrainment can have a damaging effect upon the smaller
aquatic organisms such as plankton, fish eggs and larvae, and shellfish
larvae. Entrainment occurs when these small life forms are drawn into
the powerplant in the cooling water. These entrained organisms which
pass through the cooling system may then be subjected to mechanical,
heat, pressure, and toxicity damage. Such an exposure can seriously
harm the reproductive cycle of numerous finfish, shellfish, and wildlife
species present in the water body.
Third: The discharge of heated cooling waters into the aquatic
environment can disrupt the function of complex and highly productive
natural systems.
With these three major impacts in mind, it is clear that steam
electric powerplants have the potential for causing major adverse
environmental effects.
Under the original thermal pollution effluent guidelines, which are
now under reconsideration by EPA, NPDES permits issued to some steam
electric powerplants limits the discharge of heat into water. However,
section 316(a) of the FWPCA creates an exception to this prohibition in
cases where the discharger can demonstrate that a less stringent thermal
limitation will assure the protection of the balanced, indigenous
community of fish, shellfish, and wildlife in the affected waterway.
While under section 316(a) the discharger has the obligation to
support its entitlement to an alternative thermal limitation, EPA bears
its own responsibilities under section 316(b) of the act. That section
requires the application of the best technology available to cooling
water intake structures so that the location, design, construction, and
capacity of such structures will minimize adverse environmental impacts.
A number of procedural steps are required for a discharger to obtain
either an ordinary NPDES permit, or one with special section(()) 316
conditions. For an ordinary NPDES permit, the applicant must: (1)
Submit an application for an NPDES permit, which requires information
concerning the discharger's operations and wastewater treatment, and (2)
consult with regional EPA staff which will then formulate a draft
permit.
Finally: The staff will provide public notice of the Agency's intent
to issue the permit and also announce the opportunity for a public
hearing. After consideration of public comments received in response to
the public notice and hearing, the Regional Administrator will prepare
the permit and distribute it to the applicant and to other interested
persons. At this point, any interested person may contest the issuance
of this permit by requesting an adjudicatory hearing.
When an applicant requests a permit with special section 316
conditions, a somewhat different procedure is followed.
First: Under section 316(a), the applicant will discuss the
possibility of an alternative thermal limitation with EPA and with other
interested agencies.
Second: If it appears that the discharge may have more than a low
potential for adverse environmental impact, the regional staff and the
applicant will agree upon a study plan to determine the extent and
nature of the impact of the less stringent limitations.
Third: The applicant will conduct the agreed-upon biological and
engineering studies and later will submit a report to the Regional
Administrator. The length of these studies can vary from a multiyear
investigation to a simple presentation of existing data.
Fourth: Based upon these studies and consultation with other
agencies, the Regional Administrator will decide whether to allow a less
stringent thermal limitation. This decision is subject to review
through a formal adjudicatory hearing.
The procedure under section 316(b) is similar to that under section
316(a). In the 316(b) case the Regional Administrator will decide
whether the proposed intake structure represents the best technology
available. This decision is also subject to review through a formal
adversary hearing.
Following such a hearing, the decision by either an administrative
law judge or the Regional Administrator must be based on the record
produced at the hearing. Further appeal is allowed to the
Administrator, and ultimately to the appropriate U.S. court of appeals.
With that brief discussion of procedures, I will now describe the
scope of the Agency's program as it concerns steam electric powerplants.
At present, there are a total of 1,383 powerplants in the United
States. This number includes facilities under construction which have
not yet sought permits. The great majority of these plants use fossil
fuels. NPDES permit applications have been received from 1,153 of these
plants -- that is, approximately 83 percent. As of March 31, 1977, EPA
and States with approved NPDES permit programs have issued 993 permits.
That number represents over 86 percent of the 1,153 powerplant
applicants.
These statistics indicate that the vast majority of powerplant permit
applicants have received the necessary permits required by the FWPCA.
In some cases, adjudicatory hearings are requested by the utility or by
another interested party concerning the thermal or(()) chemical
discharge, or intake structure of a powerplant. As of March 31, 1977,
we have received 441 such requests; however, nearly half of the
requests have been withdrawn because the hearing issues were resolved at
prehearing conferences. To date, EPA has conducted 18 hearings and has
210 others pending.
With reference to section 316(a) requests for alternative thermal
discharge limitations, to date there have been 208 applications. These
requests have resulted in 80 decisions including three denials, subject
to appeal to the Regional Administrator, and one denial by a Regional
Administrator which is now under appeal to the Administrator of the
Agency.
Finally, we anticipate that, as of July 1, 1977, a total of 193
powerplants will be out of compliance with chemical and/or thermal
discharge regulations -- 182 noncomplying facilities are fossil fuel
plants, 11 are nuclear. It should be noted that over half of the
noncompliance will be due to a failure to meet chemical limitations.
However, it is clear that the great majority of powerplants will be in
compliance.
The precise economic impact of governmental regulation of private
industry is always of great importance. In formulating national thermal
limitation guidelines, EPA is required by statute to consider the costs
of pollution control in its standard setting.
In regard to the section 316(a) alternative thermal limitation, the
act specifies only one criterion to be considered when allowing this
less stringent effluent standard. The sole criterion is the assurance
of the protection and propagation of a balanced, indigenous population
of shellfish, fish, and wildlife in and on the body of water into which
the discharge is to be made. Therefore, since control costs are
considered in establishing the effluent guidelines, no economic factors
are to be taken into account in the application under section 316(a).
Under section 316(b), EPA regulations do not require any specific
consideration of costs. However, the preamble to EPA's section 316(b)
regulations notes that the brief legislative history of section 316(b)
indicates that the term "best technology available" contemplates "the
best technology available commercially at an economically practicable
cost."
The Agency has taken the position that this language does not require
a cost-benefit analysis, but rather it means that technology required
under section 316(b) should not impose an impracticable and unbearable
burden on the operation of any powerplant.
Under this current interpretation of this section, the Agency should
consider whether the costs of technology are grossly disproportionate to
the gains received and also whether the firm in question can financially
afford the technology by absorbing the costs or passing them through to
consumers.
EPA has analyzed the projected economic impacts of the Federal water
effluent guidelines on powerplant capital and operating expenditures,
and on consumer charges. Agency studies indicate that the water
pollution regulations are expected to increase utility capital
expenditures over the period of 1975 to 1985 by 2.1 percent. This
figure reflects direct capital costs. In addition, it has been
predicted that water regulations will increase utility consumer charges
by 1.3 percent in 1985.(())
Consequently, the Agency believes that the water quality regulations
mandated by the FWPCA do not impose an unreasonable burden upon either
the electrical utilities or the consumer.
The Agency has also performed several analyses projecting the
percentage of powerplants which will have cooling systems in place by
1983. In 1972, approximately 20 percent of the domestic net generating
capacity employed some form of closed-cycle technology, including such
measures as cooling towers, cooling ponds, and spray systems.
Currently, this number has grown to 32 percent. A large percentage of
these systems have been adopted for economic reasons, such as the
inadequacy of water flow needed for once through cooling. This is
particularly true for natural gas burning facilities located in the arid
Southwest.
EPA predicts that by 1983 the number of plants employing all forms of
closed-cycle cooling will slightly increase due to Federal and State
standards and the unavailability of cooling water. In terms of
retrofitting existing electrical powerplants with cooling towers, at
present no plants have been ordered to install such a cooling system on
the basis of EPA's thermal effluent guidelines. I anticipate that there
will be a few future situations where the retrofitting of a cooling
tower will prove necessary.
On the subject of energy considerations in the use of cooling towers,
EPA has estimated that there is a total plant capacity penalty of 3
percent associated with the use of those structures. This reduction in
operating efficiency represents a 2-percent loss due to increased
turbine back-pressure and a 1-percent decline attributable to the
operating requirements of the cooling tower itself.
With regard to the future outlook, I believe that EPA's present
approach to the water pollution problems posed by steam electric
powerplants is workable. This does not mean that modifications cannot
be made to improve the system. EPA is taking a number of actions to
streamline the powerplant regulatory program and to clarify its
requirements.
For instance, we are presently implementing an updated memorandum of
understanding between EPA and NRC in order to coordinate each agency's
statutory functions and to obtain expeditious decisions on powerplant
applications. Also, EPA will shortly issue technical guidance manuals
which will assist permit applicants in the preparation of the biological
and engineering studies required for review under sections 316(a) and
316(b) of the FWPCA.
A national team was created in 1974 which served to coordinate
activities between different parts of the Agency and also to maintain
discussions with electric industry representatives.
A similar team consisting of EPA headquarters personnel is currently
being formed to provide for a uniform application of agency regulations
pertaining to electrical facilities.
This group will consult with EPA regional offices and the States
having NPDES permit responsibilities.
Finally, we are currently modifying our existing adjudicatory hearing
regulations in order to clarify their provisions. The amended
regulations will specifically address questions concerning burden of
proof issues in the regulatory process.(())
In conclusion, I would like to stress that the task of controlling
the pollution of our Nation's waters is a difficult undertaking, but one
which similarly must be accomplished if the vital goals of the Federal
Water Pollution Control Act are to be attained.
We are improving our understanding of the complex nature and frailty
of our ecosystems including the impact of thermal discharges and cooling
water withdrawal.
In meeting our obligations under the FWPCA we intend to continue our
efforts to clarify, streamline, and strengthen our regulations to
provide effective and rational control of all sources of water
pollution.
As you know, the administrator currently has under consideration the
appeal in the Public Service Commission of New Hampshire's Seabrook
case. The administrator's decision in that case should provide policy
determinations on significant issues regarding the application of
section 316.
This completes my prepared statement.
Now, I would like to ask for brief statements by Mr. McGlennon and
Ms. Ginsberg, and following that we will be able to answer any questions
that you may have.
Mr. GINN. Thank you, Mr. Legro.
Mr. McGlennon, we will be glad to hear from you.
Mr. McGLENNON. Thank you, Mr. Chairman.
I would like to say at the outset that I welcome this opportunity to
be here today and discuss at least my view of two very important
decisions that were made in region I concerning the application of 316.
First, the revocation of approval of the Seabrook nuclear powerplant
and the approval of a nuclear power facility called Pilgrim II in
Plymouth, Mass.
I think a review of these two cases can be instructive for some. As
far as the Seabrook case is concerned, they might show that the
application of 316 is not working. I would like to say if that is your
conclusion, that that is the exception rather than the rule.
As Stan has pointed out, there are very few instances, and all of
which we have discussed here yesterday, where there has not been feeling
on the part of the applicants that perhaps the procedures could be
improved upon. But there are many, many others where the procedures are
working and working well. You might even conclude, Mr. Chairman, as I
have, that even in the Seabrook case, the application of 316 worked
precisely the way the U.S. Congress intended.
My comments will be applied to supplementing the comments made by Mr.
Talliman, the president of the Public Service Co. I am not going over
all of the material that he covered. I do not have a prepared text. I
apologize for that, but I am going to refer fundamentally to what I did
and what was going through my mind during the Seabrook process.
As you know, our legal responsibilities began when the Public Service
Co. applied in August of 1974 for the less stringent effluent limitation
pursuant to section 316. We held a public hearing in January of 1975
and in June 1975 announced our first determination which allowed for
once-through cooling at Seabrook, N.Y.
I might add that this procedure that we used is similar to procedures
we have used thousands of times in region I in processing applications
for permits through by using the staff of our enforcement(()) division,
who makes recommendations to me for the issuance of the permit.
But I was obviously cognizant that the implications in Seabrook were
broader than most of the industrial discharge permits we issued.
I was well aware that the site that was selected by the Public
Service Co. was controversial and had been since the first hearings held
by the State of New Hampshire. We testified in these hearings that we
felt that the site left something to be desired. In addition, we
incorporated comments with that similar notion when we commented on the
draft of the environment impact statement that was developed by the
Nuclear Regulatory Commission.
Actually, as I look back at the events leading up to the final
revocation of the permits of Seabrook, it is clear that the site was a
critical factor in the problems that the company had to deal with during
the course of these proceedings.
In each instance of the delay that was caused by the decision being
made or not made in a timely fashion and was affected by the siting of
this facility approximately 2 miles behind what was referred to
yesterday as the beach barrier at Seabrook. The site is adjacent to, if
not in, an estuarine area. It is on high ground, but surrounded by an
estuarine area.
All this led to problems in the design of the cooling system. It was
originally designed to discharge right off the beach and then designed
to discharge approximately 3,000 feet off the beach area.
In our initial determination, we approved once-through cooling in
June of 1975, but we left open the question of where the intake
structure and the diffuser should be located because we were uncertain
as to the biological impacts. We then had another public hearing to
review options.
We suggested, in fact, we designed a quadrant for the company that
might be acceptable to us as far as location of the intake structure.
We said that really you should find an area within that quadrant that
has the least environmental degradation from your cooling system.
They pointed out that was impossible and, in fact, from the
standpoint of the engineering of the powerplant, that they could only
change the location along the same access that they had proposed to put
it in in the first instance. That proposal resulted in the October 1975
determination which set the intake structure at approximately 7,000 feet
offshore.
That is the press conference Jeff Miller had in Concord, N.Y., where
it was suggested that the company was not allowed to attend. Frankly,
when we have press conferences in Boston, in the regional office, that
affect other parties, we intend to invite the press and give them our
determination and why we did it and answer questions. We do not
encourage other parties to come to those press conferences and turn it
into a debate for the press.
We felt that if the Public Service Co. wanted to indicate their
feelings about our decision, they could have their own press conference,
which, I might add, they did.
I also suggest parenthetically that it is hard to describe to you,
although I expect Congressman Cleveland is aware, the environment under
which we were making those decisions.(())
Governor Thomson was very anxious that this decision be made as
expeditiously as possible. In fact, Jeff and I met with him on one
occasion in which he made it very clear.
Second, President Ford visited New Hampshire during that same period
and again Governor Thomson made clear to President Ford that this
decision should be expedited, that we were dragging our feet and
wrapping red tape around it and what not. President Ford raised that
issue with Administrator Train, and our staff was not unaware of the
climate in which they were being asked to make this decision.
Be that as it may, the decision was made and of course, immediately
appealed by all parties.
In the State of New Hampshire the intervenors included the attorney
general of New Hampshire, the Seacoast Anti-Pollution League, and the
New Hampshire Audubon Society. On the other side, the company appealed
the determination because they did not feel that the 7,000-foot location
was necessary, that 3,000 should, in fact, suffice.
We wept into the adjudicatory hearing process which Stan has
described. Judge Yost was appointed and held the adjudicatory hearings.
He certified the record.
I think there was some 1,600 pages of testimony and cross-examination
-- clarification of the issues -- during that adjudicatory hearing, and
he certified the record to me in May of 1976.
It was indicated yesterday that I returned the record to Judge Yost
and asked him for a recommended decision. I did not ask him to make the
decision for me, but merely to recommend what finding he would propose.
This is not without precedent in the Environmental Protection Agency,
for the adjudicatory law judge to make an adjudicatory finding to the
regional administrator.
He sent it back to me suggesting that it was my responsibility and he
did not have the resources to do it.
It was at that point that I began to put together a team that would
be responsible for reviewing the record with me and making the ultimate
decision on the appeal.
Very clear in my mind was the rule of ex parte that the Agency had
adopted in this and other instances. In fact, the members of my
enforcement division, which was responsible for staffing out the first
determination and the first approval of the permit, were determined to
be parties with the company in the appeal and, therefore, resources
that, while used in doing the original staff work were not longer
available to me.
Anybody involved in that decision was not available to me to assist
in my review and understanding of the record and advising me of the
ultimate decision.
Although we have a large regional staff that really left, of those
that I would logically turn to in this decision our general counsel, Bob
Thompson, who is to my right, and Harley Laing, assistant regional
counsel. We have a staff biologist in our regional office but I was not
able to consult with him.
I was very much aware at that point of the responsibility that I
assumed. I was aware that the company was going forward full bore with
expenditures incorporated in the construction of that facility.(())
The Nuclear Regulatory Commission had issued a construction permit
subject to the EPA's final determination on the discharge permit and the
Public Service Co. had gone under construction and appeared to be making
expenditures just as quickly as they could, not only prior to the
construction permit, but afterwards, which clearly raised the ante so
far as the decision was considered.
I also was aware of the energy implications of this decision. I was
clearly aware of the job implications. There were 700 people who work
on this site. I was clearly aware of the economic implications for the
State of New Hampshire and that all that --
Mr. GINN. Could I interrupt you? One of our members has a technical
question he would like to clear with you at this particular time.
Mr. McCormack.
Mr. McCORMACK. When the Nuclear Regulatory Commission gave its
authorization for limited work, it was based on final approval by EPA.
Hadn't EPA already given approval? Weren't they operating under an
existing EPA approval?
Mr. McGLENNON. Yes, Congressman, but it was in appeal. There had
been an adjudicatory hearing and it was in the process of being
appealed. The approval was not final until all appeals had been
exhausted.
Mr. McCORMACK. But the position of the company could have
legitimately been as soon as they are cleared, they want to proceed as
rapidly as they can, because there can be a cost of something like a
million dollars a day from delays. Was it the nature of this situation
that they could have resumed operating under the appeal, assuming they
had approval?
Mr. McGLENNON. The determinations were at that time staged, and the
Nuclear Regulatory Commission allowed them to go under construction
subject to the final resolution of the issues that were in appeal at the
time. The company, I think, made a corporate decision in the face of
obvious risks.
There was no misunderstanding that the final determination on the
discharge permit was unresolved because the company was also a part of
the appeal, so they were aware that the issue was being appealed. But
felt that the risk was sufficient so that they could go on.
Mr. McCORMACK. I will not raise it further. The position could be
interpreted as being legitimate under the circumstances. I do not know
of any case where an EPA ruling was subject to a Limited Work
Authorization, but I am just trying to make the point that normally the
tilts operate on the basis of the NRC/LWA. Even though it was in
appeal, there was no restriction under the appeal that you couldn't
construct?
Mr. McGLENNON. That is correct.
Mr. GINN. Please proceed with your statement, Mr. McGlennon.
Mr. McGLENNON. One of the things that was clear was that I needed
additional technical assistance in order to make this as good a decision
as I possibly could. I did have two attorneys. I felt that I needed
the assistance of a biologist, and, in fact, we hired an outside
consultant/biologist, Dr. Christopher Martin, to help us.
It was suggested yesterday that Dr. Martin had never done any studies
in this area. Dr. Martin had been the director of the University(()) of
Massachusetts' Marine Laboratory in Gloucester, Mass., which happens to
be in the Gulf of Maine and Ipswich Bay area, where the Seabrook
facility is proposed. He had conducted studies there for 5 years and is
intimately familiar with the ecosystem where the facility is to be
built.
I didn't hire him for the studies. I hired him to respond to
technical questions that I had concerning a number of biological
subjects such as the frequency of reproduction for clams, the cycle by
which they release their larvae, and the same with lobsters and other
kinds of planktonic organisms. What are the cycles they go through,
what would be the effect on this ecosystem.
He tried to describe for me how the ecosystem worked and I began to
realize clearly that this is an extremely rich, fragile part of our
environment, all interconnected in the area off of Seabrook, that led to
questions that I had about what would be the impact of the powerplant.
How could we quantify the effect on certain species in the area, what
would be the effect if, in fact, we agreed that there was 10 or 15
percent mortality, or a 2 or 5 percent mortality?
What would be the effect on the ecosystem? How would it adjust, both
primary effects and secondary effects, to changes in these indigenous
species. This led to a series of questions which we raised with the
parties to the appeal. We sent them out and asked them all. It
embodies questions that I had in my mind at that time.
We had about 5,000 pages of testimony to review. I must have read
most of it. I did not read all of it, but one of us read all of it and
we kept meeting and putting our thoughts together. I devoted the better
part, over 50 percent of my time as a regional administrator to this
decision during the 5-month period.
We raised these questions. The responses were not totally
satisfactory, and it is clear as I went through the record and applied
what I believed to be the legal criteria for granting this exemption,
which is whether or not the company had shown that there would be no
significant adverse impact on the indigenous marine population, it
became clear to me that they had not.
They had not sufficiently or in any way, frankly, quantified what the
impact would be on the marine organisms, whether they were the
representative species or other organisms. They had not met, in our
opinion, the responsibility under section 316(b) which is to show that
they planned to employ the best available control technology in
location, intake structure, and diffusion to minimize environmental
impact.
If, in fact, locating that intake structure and diffuser in some
other part of the ocean off the coast would further minimize harm to the
marine ecosystem, then they had not met their responsibilities under
that section.
Well, the result is now history. On November 9, 1976, we issued the
initial determination which revoked their permit. I was, of course, not
unaware that that came immediately after a presidential election. I was
accused of bending to the new winds that were blowing from Plains, G.
The decision, actually, was made in mid-October and it took us -- it
was about a 70-page decision -- about 3 weeks to actually write it. The
implications that there were any political considerations in that
decision have been frankly insulting to me.(())
I would say one other thing in conclusion. I do not regret at all
the decision that I have made. I feel that it is a correct and a just
one. I think it was made on the best available information we had and
it is the proper application of section 316.
Subsequent to the decision I had an opportunity to make another
ruling -- on the Pilgrim II plant at Plymouth, Mass. With regard to
that plant I was able to apply the same standard that I set for the
Public Service Co. of New Hampshire as to making a showing concerning
the impact on the marine population and therefore giving me an
opportunity to judge acceptability of the risk. The Boston Edison Co.
met that standard. They quantified as absolutely as one can using the
principles of marine biology.
There is no such thing as scientific certidue within marine biology.
You can make some assumptions as to what the effect on the marine biota
would be. We were given information by the Boston Edison Co. upon which
we could make a judgment as to whether there would be a significant
impact on the marine population. I concluded that the impact we were
able to predict was acceptable, and we issued the permits to the Pilgrim
plant.
There are two other things I will comment on.
One is the question of the legitimacy of the appeal process.
It has been suggested it is impossible; how could one person who
originally said yes say no 6 months later on the same decision?
I took the responsibility of the appeal process very seriously. I
viewed the record as objectively as I could. I applied what. I thought
was the responsibility under the law to the company. I feel that one
has to believe that this kind of an appeal is a legitimate process. No
applicant can assume that because they have received initial approval
that it would automatically be ratified by the regional administrator.
We cannot do this or we might as well not have appeals.
The company suggested in their written statement, subject to my final
determination, that they really had only two options: one was to go to
a closed cooling system, and the other was to change to a coal-fired
plant in that or another location.
There was a third option that was spelled out. They could change the
design of the cooling system to extend the pipes out further beyond what
we had identified as a highly rich ecosystem, which is referred to as
the neritic band. We made clear an intake structure outside that area
would be acceptable to the Environmental Protection Agency.
I apologize for taking so long. I feel very strongly about what we
have done in region I and I believe it is right.
I wanted to explain to you what was going through my mind and the
thoughts that I had as we proceeded through this process so that you
could more clearly understand the manner in which we applied 316.
Mr. GINN. Thank you, Mr. McGlennon. We appreciate your remarks.
Ms. Ginsberg, I understand you have a brief statement.
Ms. GINSBERG. I will be brief, Mr. Chairman and members of the
committee: I would like to thank you for this opportunity to respond
briefly to the comments made yesterday by Public Service of Indiana.(())
We in region 5 have been deeply involved in section 316(a) matters
for at least the past 3 years.
Although our attention is primarily focused on powerplants in Indiana
and Illinois, because of the pattern of NPDES delegation to State
agencies we have had experience in assessing thermal impacts in a large
number of situations.
The overwhelming majority of the 316(a) demonstrations we have
received to date have resulted in either the imposition of alternative
thermal effluent limitations without restriction, or in negotiated
agreements for some degree of heat reduction far short of total
closed-cycle cooling.
It should be noted that Public Service of Indiana has been the
subject of a number of these favorable 316(a) determinations for plants
other than the Cayuga and Wabash River stations, which were addressed by
the company yesterday in its testimony to this subcommittee.
We believe that PSI in its statement has taken a very narrow view of
the record in the Cayuga and Wabash River cases and has misdiagnosed the
reasons for region V's determination to deny alternative thermal
limitations at those two stations.
As we believe it is fully documented in the record developed at our
October 1976 hearings, Dr. Gammon's study did establish that the Wabash
River aquatic community had sustained substantial impacts from the
thermal discharge of these two plants. This was the principal basis for
our adverse determination and was the case we presented at the
adjudicatory hearing.
There were secondary reasons as well, as discussed in the February
27; 1976, written notice to PSI. We believe the secondary reasons were
taken out of perspective in yesterday's testimony.
For example, the significance of the cited later quality standards
violations is misapprehended by PSI. Certainly, there was no intent on
the part of region V to repeal section 316(a).
Assuming for the sake of argument that Indiana thermal standards are
set to protect a warm water fishery, the frequency of violation of those
standards is, we believe, relevant to the question of whether a
particular thermal discharge or combination thereof, can meet the test
of section 316(a). In addition, the potential intake problems alluded
to in the February 27 determination have been deferred for later
consideration. To raise that issue at this juncture is, we believe,
misleading.
Finally with respect to the numerous deficiencies in the 316(a)
demonstrations, I believe that region V made it quite clear at the
adjudicatory hearings as well as in our post-trial brief that these
deficiencies were not determinative of themselves. Instead, they were
cited as being examples of those areas where damage might be occurring
but which were, as yet, unstudied, in addition to the thermal impacts we
found in reviewing Dr. Gammon's data.
The regional administrator of region V has not yet rendered an
initial decision in this proceeding. It has not been prejudged. PSI
has had a chance to develop a full record in support of its position.
There has not been a shifting standard. There has only been the
statutory test of 316(a).(())
We in region V feel that 316(a) has worked well to relieve the
utility industry of thermal restrictions where such relief is warranted.
We believe that our record in administering 316(a) has been
characterized by rational decisionmaking. The fact that we have to date
only entered the adversary arena with one company on the issue of
closed-cycle cooling for two plants is, we believe, testimony to the
success of 316(a) as written by Congress, and as presently contained
within the FWPCA.
Thank you very much.
Mr. GINN. Ms. Ginsberg, thank you very much for your statement.
Mr. Legro, are there other with you who desire to make statements?
Mr. LEGRO. That covers all our statements. We stand ready to answer
any questions that you or other members of the committee may have.
Mr. GINN. Thank you very much. We will try to be as brief as we
can. We would like to conclude as near as possible to one.
I realize that your time is very valuable, too, and you have been
patient. And the members of the subcommittee have been patient.
You use the word "capacity" which comes out of section 316(b) of the
law itself.
Is it a fair statement that in many cases it is the desire to limit
the volume of water taken into the plant that is causing the
Environmental Protection Agency to require cooling towers at some
locations? In other words, the environmental impact is "minimized" by
reducing the amount of water needed?
Mr. LEGRO. I think it is fair to say that is an issue that is under
consideration by the administrator as to his decision in the Seabrook
case. The linkage between 316(a) and 316(b), and whether or not the
term "capacity" as 316(b) uses it, whether than means that you can
thereby, in effect, reduce the volume of the flow, I might say that the
Agency's general counsel has rendered an opinion which says that 316(b)
alone is a sufficient reason for requiring once-through cooling.
Capacity means flow volume of the intake.
Mr. MILLER. Let me add to that. As a result of the studies that
have been conducted to date pursuant to the 316(a) in the permit
procedures, it has become evident to us that the entrainment problems
through intakes may be more substantial than the thermal pollution
problem in the environment. You would have variations from case to
case, but overall, we have more serious concerns with the entrainment
problem than with thermal pollution.
One indication of that is that although we have only about 200 316(a)
requests where we have studies ongoing, we have approximately 400
studies going on under 316(b).
Mr. GINN. Thank you. Mr. Legro, in another part of your testimony
you mention that the biological studies can be multiyear or simple. How
does the Environmental Protection Agency make that determination, in one
case requiring an applicant to go through lengthy, costly studies and in
another simply requires him to provide existing data? How do you make
that determination?
Mr. MILLER. Basically, there would be two routes that you could use
to determine that a quick study would be appropriate.(())
One: If there is a good deal of available information that shows the
water body you are talking about is fairly sterile, is not rich in
biota, and the second is if there is for an existing plant a good amount
of data available already to show that there has been no appreciable
harm to date. That would be sufficient.
Mr. GINN. Does the Environmental Protection Agency have a prediction
or estimate as to the number of plants or the capacity of plants that
will have closed-cycle cooling by 1983?
Mr. MILLER. As Mr. Legro pointed out, there are about 300 plants
that have cooling towers and other types of closed-cycle cooling, most
of them not for environmental reasons.
Out of the 80 determinations that we made under 316(b), there were
only four denials. Of the other 200 determinations that we made under
316(a), there were six that require some form of control. So if you
could project that to the total number, it would be very small. We have
no absolute numbers we could project because we would be subject to
hearings if they were appealed.
Mr. LEGRO. One thing that is important to keep in mind is the fact
that closed-cycle cooling in a number of instances, particularly in arid
parts of the country -- the west and southwest -- has resulted from
economic factors and water available conditions rather than
environmental concerns. While the number that Mr. Miller and I have
mentioned is a substantial number, it is not truly reflective of cases
in which it has resulted from environmental considerations.
Mr. GINN. Mr. Legro, you say 316(a) and 316(b) guidance manuals will
be issued shortly. Have we not had guidance manuals up to this time?
If not, why not? How is a company to know what is required of it under
these circumstances?
Mr. MILLER. There is in use a draft 316(a) manual. It has been in
place for some time. Also a development document is available under
316(b) which outlines many of the considerations and the alternative
technologies available.
Mr. GINN. The manuals you referred to will be updated versions of
what you have already had?
Mr. MILLER. Yes.
Mr. GINN. The 1972 law establishes a goal for 1985 of no discharge
of pollutants.
Yesterday we heard testimony that this goal was requiring the
Environmental Protection Agency to do some irrational things, to request
pollution abatement investments that far outweigh the costs. Please
comment on how much the 1985 goal is today driving the Environmental
Protection Agency program.
Mr. MILLER. Not at all. That is stated as a goal. It has in our
view no statutory mandate. In fact, in establishing effluent
guidelines, we look at the technology that is available and the cost of
that technology and there is no mandate as far as we are concerned to
get to zero discharge. That is certainly not a consideration in any
316(a) determinations.
Mr. GINN. Let me ask this question of the Washington EPA officials
and I will also invite the regional officials to comment.
What kind of a base period does EPA use in determining what
constitutes a balanced indigenous population? Is it the aquatic
life(()) that existed in the stream last year, 10 years ago, 50 years
ago, or back when the Indians roamed our prairies? Is this a rather
critical element? Is there a difference from region to region in the
time period criteria used?
Mr. MILLER. That is a very critical element of the analysis. In
fact, the notice of availability of 316(a) and 316(b) manuals will ask
for comments on this point. Basically, we are not trying, in looking at
a balanced indigenous population, to protect sludge worms and other
pollutant-tolerant organisms that may be in place only because of
pollution problems.
On the other hand, we are not trying to return to pristine waters in
urban areas. So some kind of a balance between those two must be struck
in each individual case.
Mr. GINN. Do the criteria vary from region to region?
Mr. MILLER. They should not. We have attempted to maintain
uniformity in the application of 316 by a series of workshops we have
had with our regional offices, via a group called the steam team that we
operate out of headquarters giving advice to regional offices and, more
recently, by headquarters participation in adjudicatory hearings
involving powerplants around the country. We are trying to maintain
some consistency in that regard.
Mr. LEGRO. I think it is fair to say, Mr. Chairman, because we want
to be completely candid with this committee, that there probably have
been instances in the past where varying standards have been applied.
We have used all the measures that Mr. Miller has outlined and this is
something that we are devoting attention to because it is extremely
important that a single approach should be applied everywhere. But I
think there probably have been instances where there have been at least
minor variations in the standards applied.
Mr. GINN. Ms. Ginsberg, what would you describe as a balanced
indigenous population with respect to the Wabash River?
Ms. GINSBERG. I cannot define a balanced indigenous population, but
I can explain it to you in the context of the time period we looked at.
Because of the fact that there was a preoperational data for the Cayuga
station, we could look at a site 35 miles upstream of that Wabash River
station and see what existed there in the absence of the heat. Because
Dr. Gammon's studies went beyond the operational data, we could see what
happened after Cayuga commenced operation with one unit in 1970 and then
with two in 1972.
In making our determination we assessed what the impact of that heat
had been. We looked at the balanced indigenous population that would
exist in the absence of heat and compared it with what existed in the
present of heat and, in our opinion, we thought there had been some
impacts.
Mr. GINN. Thank you.
Mr. Schaffer, we have heard a lot about damage to aquatic life that
can result from the intake structures of powerplants.
Do not municipal waterplants and certain other industries such as the
food processors and paper industry also use large volumes of water and
also have intake structures?
Mr. SCHAFFER. Yes.(())
Mr. GINN. Do they have a similar problem or is it just powerplants?
Mr. SCHAFFER. No. Their's are isolated problems. The power
industry draws 10 to 1,000 times more water than any other industrial
category. Section 316 does apply to those industries which draw and
discharge water for power generation. We do not believe that section
316(a) applies, however, to municipal waterplants. It is only for
thermal aspects.
Mr. GINN. What kind of controls to minimize damage from their intake
structures exists in the law?
Mr. GINN. Yes.
Mr. SCHAFFER. None that I am aware of.
Mr. GINN. Don't they pose as much of a threat?
Mr. SCHAFFER. No, it is intermittent and of far less volume.
Mr. MILLER. It is my understanding that about 85 percent of the
water withdrawal for use by industry is by the power industry. That
gives you an idea of why the impact and major attention is here. We
have 316(b) studies and problems ongoing in some other industries. In
region V they have some related to the steel companies right now.
Mr. GINN. The next question is for Mr. Legro or region V. We have
heard a great deal of criticism about the way EPA involves itself in the
setting and application of State water quality standards. If they are,
in fact, State standards, why does not EPA gracefully withdraw from such
involvement?
Ms. GINSBERG. I believe we have several decisions of the
Environmental Protection Agency general counsel that address this very
matter. The most recent one is for the Texaco-Lockport facility in
which the EPA general counsel opined EPA could apply standards without
sitting as a State judge. We would apply them as written. We have a
positive duty.
It was outlined in the matter of Commonwealth Edison for Saybrooke
that it is EPA's duty to apply the State water quality standards
regardless of whether or not the State has been applying them.
Mr. MILLER. I believe your question can be answered in two parts.
First, does the Environmental Protection Agency interfere with the
States in setting water quality standards -- which is clearly their
mandate? I think the answer to that is no and certainly not in the
context of issuing permits or making 316 determinations.
The other part of the question, with the State water quality standard
in existence, what is EPA's responsibility? In that context, the water
quality standard has the same force as an effluent guideline that EPA
sets. EPA must make a determination.
Mr. GINN. Is EPA insisting upon State standards that aim at the 1983
goal of fishable-swimmable waters or at the 1985 goal of no discharge?
Mr. MILLER. Not a 1985 goal of no discharge. My understanding, and
this is not my area so I might want to submit something for the record
on this, is that we have encouraged States to upgrade. We have not
mandated that that happen. There are many streams where that goal would
not be obtainable. We have not tried to get States to upgrade under
those circumstances.(())
(The following was submitted for the record by EPA:)
Section 101(a) (1) and (2) of the Federal Water Pollution Control Act
sets out the two goals you have alluded to in your question. The 1972
Amendments reflect a two-tiered approach to water quality improvement;
one based upon technology-based effluent limitations and the other
focused upon levels of water quality. Under the structure of the Act,
the States are directed to establish water quality standards for waters
within their borders. These standards are subject to review by the
Environmental Protection Agency and are of considerable importance to
the Section 208 planning program and the Section 402 NPDES permit
program. At present we are in the process of revising the existing
regulations (40 C.F.R. 130.17) to allow States under prescribed
conditions to set water quality standards at levels lower than that
required for fishable-swimmable waters. When completed these new
regulations will define the situations when the section 101(a)(2) goal
will not be attainable. The Act explicitly recognizes that this high
level of water quality might not be attainable in all waters of the
United States.
Mr. LEGRO. It is fair to say EPA has encouraged States on their own
to upgrade their standards toward fishable-swimmable. Because of the
requirements of the law that permits issued must conform to State water
quality standards, I would think that it is very likely that there have
been, as a result of those two things, instances where permits issued
have been more stringent than they would otherwise be. There is the
interaction of those two sections of the law.
Mr. GINN. One more question about State water quality standards.
Public Service of Indiana testified yesterday that it was OK to have a
temperature of 90 degrees in the Wabash River on September 30, but the
very next day, on October 1, the permissible limit dropped to 78
degrees. Would you please explain that or defend it?
Ms. GINSBERG. I will not defend them because I did not write them.
All the States that I am familiar with have specific temperature
standards, that is, numerical standards. They are on a monthly basis
for the most part. It simply happens that September is included within
the hot months and the break comes in October. It may seem a little
incongruous, but without having specific numerical standards, we would
not have anything enforceable. I think it is a difficult concept for
one to appreciate.
Mr. GINN. It is very difficult.
Mr. LEGRO. It is important here to recognize that Congress gave a
lot of weight to fundamental concepts of federalism as far as letting
States make some decisions like this. I think in the situation that you
posed to Ms. Ginsberg, the State of Indiana could, through State action,
change its water quality standards. But under the structure of the law,
so long as it has that water quality standard, then they are required to
apply that standard in our activities. So I think if relief perhaps is
to be sought here, relief should be sought by the discharger from the
State with regard to its water quality standards.
Mr. GINN. Yes. We have a question from Mr. Krouse.
Mr. KROUSE. How much does EPA involve itself with the States in
setting State water quality standards?
Mr. MILLER. EPA does have a criteria book which gives guidance as to
what kind of criteria should be set to protect different uses. I cannot
answer you beyond that. I can supply that for the record. (Submitted
for the record were the following introductory pages of EPA's "Quality
Criteria for Water" -- EPA 440, September 1976 -- 023)
HRG OTH
770420 760726
U.S. ENVIRONMENTAL PROTECTION AGENCY, OFFICE OF WATER AND HAZARDOUS
MATERIALS
--
--
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT -- 1977
(THERMAL POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER
GENERATION) 1977, "QUALITY CRITERIA FOR WATER" (PP 377 TO 384)
--
--
95-217
--
CW270071 CW270078
05783
(())
U.S. ENVIRONMENTAL PROTECTION AGENCY,
OFFICE OF WATER AND HAZARDOUS MATERIALS,
Washington, D.C., July 26, 1976.
To the Reader:
Thousands of fine scientists throughout the country have contributed
directly or indirectly to this publication on "Quality Criteria for
Water." This volume represents a stock-taking effort on the part of this
Agency to identify as precisely as possible at this time, on a national
scale, the various water constituents that combine to form the concept
of "Quality Criteria for Water". This process of definition will
continue far into the future because research related to water quality
is a never-ending evolutionary process, and the water environment is so
complex that man's efforts to define it will never attain finite
precision.
Water quality criteria do not have direct regulatory use, but they
form the basis for judgment in several Environmental Protection Agency
and State programs that are associated with water quality
considerations. The criteria presented in this publication should not
be used as absolute values for water quality. As it is stated in the
chapter on "The Philosophy of Quality Criteria" there is variability in
the natural quality of water and certain organisms become adapted to
that quality, which may be considered extreme in other areas. These
criteria represent scientific judgments based upon literature and
research about the concentration-effect relationship to a particular
water quality constituent upon a particular aquatic species within the
limits of experimental investigation. They should be used with
considered judgment and with an understanding of their development. The
judgment associated with their use should include the natural quality of
water under consideration, the kinds of organisms that it contains, the
association of those species to the particular species described in this
volume upon which criteria values have been placed, and the local
hydrologic conditions.
It must be emphasized that national criteria can never be developed
to meet the individual needs of each of the Nation's waterways -- the
natural variability within the aquatic ecosystem can never be identified
with a single numerical value. Water quality criteria will change in
the future as our knowledge and perception of the intricacies of water
improve. There is no question but that criteria for some constituents
will change within a period of only two years based upon research now in
progress. That is a mark of continuing progressive research effort, as
well as a mark of a better understanding by man of the environment that
he inhabits.
This, then, is the challenge for the future: to expand upon our
present baseline of knowledge of the cause-effect relationships of water
constituents to aquatic life and of the antagonistic and synergistic
reactions among many quality constituents in water; and to mold such
future knowledge into realistic, environmentally protective criteria to
insure that the water resource can fulfill society's needs.
ECKARDT C. BECK,
Deputy Assistant Administrator
for Water Planning and Standards.
FOREWORD
The Federal Water Pollution Control Act Amendments of 1972 require
the Administrator of the Environmental Protection Agency to publish
criteria for water quality accurately reflecting the latest scientific
knowledge on the kind and extent of all identifiable effects on health
and welfare which may be expected from the presence of pollutants in any
body of water, including ground water. Proposed Water Quality Criteria
were developed and a notice of their availability was published on
October 26, 1973 (38 FR 29646). This present volume represents a
revision of the proposed water quality criteria based upon a
consideration of comments received from other Federal agencies, State
agencies, special interest groups, and individual scientists.
This volume, Quality Criteria for Water, addresses the effects of
those basic water constituents and pollutants that are considered most
significant in the aquatic environment in the context of our present
knowledge and experience. The format for criteria presentation has been
altered substantially from the proposed volume. It is believed that the
alphabetical arrangement of the water(()) quality constituents and the
form in which the information is arranged will be of considerable help
to the reader in using this volume. For each basic water constituent or
pollutant there is a recommended criterion, an introduction, a rationale
supporting the recommended criterion and a list of the references cited
in the development of the recommendation.
The thrust of this volume is to recommend criteria levels for a water
quality that will provide for the protection and propagation of fish and
other aquatic life and for recreation in and on the water in accord with
the 1983 goals of P.L. 92-500. Criteria also are presented for the
domestic water supply use. Generally, these water uses are the highest
achievable beneficial uses and water quality that supports these uses
will also be suitable for agricultural and industrial uses. In those
few exceptions, criteria are presented to provide a safe water quality
for agricultural use, or water quality conditions associated with
agricultural and industrial uses are discussed in the rationale
supporting a criterion recommendation.
Guidelines to implement the consideration of criteria presented in
this volume in the development of water quality standards, and in other
water-related programs of this Agency, are being developed and will be
available for use by the States, other agencies, and interested parties
in the near future.
RUSSELL E. TRAIN,
Administrator.
PREFACE
The genesis of water quality criteria in the United States began in
the early 1900's. Marsh /1/ , in 1907, published on the effects of
industrial wastes on fish. Shelford /2/ , in 1917, published effect
data on fish for a large number of gas-waste constituents. In this
early publication he reiterated that the toxicity of waste differs for
different species of fish and generally is greater for the smaller and
younger fish. Powers /3/ , working with Shelford, experimented with the
goldfish as a test animal for aquatic toxicity studies.
((/1/ M. C. Marsh. The effect of some industrial wastes on fishes.
Water supply and irrigation paper No. 192, U.S. Geol. Sur., pp. 337-348
(1907).))
((/2/ V. E. Shelford. An experimental study of the effects of gas
wastes upon fishes, with especial reference to stream pollution. Bull.
Illinois State Lab. for Nat. History, 11:381-412 (1917).))
((/3/ E. B. Powers. The goldfish (Carassius carassius) as a test
animal in the study of toxicity. Illinois Biol. Mono., 4:127-193
(1917).))
A monumental early effort to describe and record the effects of
various concentrations of a great number of substances on aquatic life
was that of Ellis in 1937. Ellis /4/ reviewed the existing literature
for 114 substances in a 72-page document and listed lethal
concentrations found by the various authors. He provided a rationale
for the use of standard test animals in aquatic bioassay procedures and
he used the common goldfish, Crassius auratus and the entomostracan,
Daphnia magna, as test species in which experiments were made in
constant temperature cabinets.
((/4/ M. M. Ellis. Detection and measurement of stream pollution.
Bull. U.S. Bureau of Fisheries, 48:365-437 (1937).))
Early efforts to summarize knowledge concerning water quality
criteria took the form of a listing of the concentration, the test
organism, the results of the test within a time period, and the
reference for a cause-effect relationship for a particular water
contaminant. In early bioassay efforts insufficient attention was given
to the quality of the dilution water used for the experiment and to the
effects of such dilution water on the relative toxicity of the tested
contaminant. As a result, conclusions from citations of such references
were, at best, difficult to formulate and most often were left to the
discretion of the reader.
In 1952, the State of California /5/ published a 512-page book on
"Water Quality Criteria" that contained 1,369 references. This classic
reference summarized water quality criteria promulgated by State and
interstate agencies, as well as the legal application of such criteria.
Eight major beneficial uses of water were described. Three-hundred
pages of the document were devoted to cause-effect relationships for
major water pollutants. The concentration-effect levels for the
pollutant in question were discussed for each of the designed water
uses.
((/5/ Water Quality Criteria. State Water Pollution Control Board,
Sacramento, California.))
The State of California's 1952 Water Quality Criteria edition was
expanded and tremendously enhanced into a second edition edited by
Messrs. Jack E.(()) McKee and Harold W. Wolf and published in 1963 by
the Resources Agency of California, State Water Quality Control Board.
/6/ This edition, which included 3,827 cited references, was a
monumental effort in bringing together under one cover the world's
literature on water quality criteria as of the date of publication.
Criteria were identified and referenced for a host of water quality
characteristics according to their effects on domestic water supplies,
industrial water supplies, irrigation waters, fish and other aquatic
life, shellfish culture, and swimming and other recreational uses.
Specific values were arranged in ascending order, with appropriate
references, as they had been reported damaging to fish or as not harmful
to fish in the indicated time and under the conditions of exposure. The
results of such a tabulation presented a range of values and, as would
be expected by those investigating such conditions, there was often an
overlap in values between those concentrations that had been reported by
others as harmful. Such an anomaly is due to differences in
investigative techniques among investigators, the characteristics of the
water used as a dilutent for the toxicant, the physiological state of
the test organisms, and variations in the temperature under which the
tests were conducted. Never the less, the tabulation of criteria values
for each of the water quality constituents has been helpful through time
to predict a range within which a water quality constituent would have a
deleterious effect upon the receiving waterway.
((/6/ J. E. McKee and H. W. Wolf. Water Quality Criteria, State
Water Quality Control Board, Sacramento, California, Pub. 3-A (1963).))
In 1966 the Secretary of the Interior appointed a number of
nationally recognized scientists to a National Technical Advisory
Committee to develop water quality criteria for five specified uses of
water: domestic water supply, recreation, fish and wildlife,
agricultural, and industrial. In 1968 the report was published. /7/
This report constituted the most comprehensive documentation to date on
water quality requirements for particular and defined water uses. The
book was intended to be used as a basic reference by personnel in State
water pollution control agencies engaged in water quality studies and
water quality standards setting activities. In some respects, this
volume represented a marriage between the best available experimental or
investigative criteria recorded in the literature and the judgments of
recognized water quality experts with long experience in associated
management practices. Its publication heralded a change in the concepts
of water quality criteria from one that listed a series of
concentration-effect levels to another that recommended concentrations
that would ensure the protection of the quality of the aquatic
environment and the continuation of the designated water use. When a
specific aquatic life recommendation for a particular water pollutant
could not be made because of either a lack of information or conflicting
information, a recommendation was made to substitute a designated
application factor based upon data obtained from a 96-hour bioassay
using a sensitive aquatic organism and the receiving water as a dilutent
for the toxicity test.
((/7/ Water Quality Criteria. A Report of the National Technical
Advisory Committee to the Secretary of the Interior, U.S. Government
Printing Office, Washington, D.C. (1968).))
The U. S. Environmental Protection Agency contracted with the
National Academy of Sciences and the National Academy of Engineering to
embellish the concept of the 1966 National Technical Advisory
Committee's Water Quality Criteria and to develop a water quality
criteria document that would include current knowledge. The result was
a 1974 publication that presented water quality criteria as of 1972.
/8/
((/8/ Water Quality Criteria. 1972. National Academy of Sciences,
National Academy of Engineering, U.S. Government Printing Office,
Washington, D.C. (1974).))
The Federal Water Pollution Control Act Amendments of 1972 (P.L.
92-500) mandated that the Environmental Protection Agency publish water
quality criteria accurately reflecting the latest scientific knowledge
on the kind and extent of all identifiable effects on health and welfare
which may be expected from the presence of pollutants in any body of
water.
Section 304(a) of P.L. 92-500 states, "(1) The Administrator, after
consultation with appropriate Federal and State agencies and other
interested persons, shall develop and publish within one year after
October 18, 1972 (and from time to time thereafter revise) criteria for
water quality accurately reflecting the latest scientific knowledge (A)
on the kind and extent of all identifiable effects on health and welfare
including, but not limited to, plankton, fish, shellfish, wildlife,
plant life, shorelines, beaches, esthetics, and recreation(()) which may
be expected from the presence of pollutants in any body of water,
including ground water; (B) on the concentration and dispersal of
pollutants, or their byproducts, through biological physical, and
chemical processes; and (C) on the effects of pollutants on biological
community diversity, productivity, and stability, including information
on the factors affecting rates of eutrophication and rates of organic
and inorganic sedimentation for varying types of receiving waters.
"(2) The Administrator, after consultation with appropriate Federal
and State agencies and other interested persons, shall develop and
publish, within one year after October 18, 1972 (and from time to time
thereafter revise) information (A) on the factors necessary to restore
and maintain the chemical, physical, and biological integrity of all
navigable waters, ground waters, waters of the contiguous zone, and the
oceans; (B) on the factors necessary for the protection and propagation
of shellfish, fish, and wildlife for classes and categories of receiving
waters and to allow recreational activities in an on the water; and (C)
on the measurement and classification of water quality; and (D) for the
purpose of Section 303 of this title, on and the identification of
pollutants suitable for maximum daily load measurement correlated with
the achievement of water quality objectives.
"(3) Such criteria and information and revisions thereof shall be
issued to the States and shall be published in the Federal Register and
otherwise made available to the public."
Section 101(a)(2) of P.L. 92-500 states, "It is the national goal
that wherever attainable, an interim goal of water quality which
provides for the protection and propagation of fish, shellfish, and
wildlife, and provides for recreation in and on the water, will be
achieved by July 1, 1983."
The objectives of this volume are to respond to these sections of the
Act and thus establish water quality criteria. The QCW will be expanded
periodically in the future to include additional constituents as data
become available. While the NAS/NAE 1972 Water Quality Criteria
considered aluminum, antimony, bromine, cobalt, fluoride, lithium,
molybdenum, thallium, uranium and vanadium, these presently are not
included in this volume; however, they should be given consideration in
the development of State Water Quality Standards and quality criteria
may be developed for them in future volumes of the QCW. In particular
geographical areas or for specific water uses such as the irrigation of
certain crops, some of these constituents may have harmful effects.
Until such time that criteria for the 10 aforementioned constituents are
developed, information relating to their effects on the aquatic
ecosystem may be found in the NAS/NAE 1972 Water Quality Criteria.
PREPARATION OF THIS VOLUME
A volume of this scope results from the efforts of many dedicated
people and includes technical specialists located throughout the
Agency's operational programs and in its research laboratories. The
responsibility for coordinating compilation efforts and in preparing
manuscript was assigned to the Criteria Branch of the Criteria and
Standards Division within the Office of Water Planning and Standards.
EPA.
THE PHILOSOPHY OF QUALITY CRITERIA
Water quality criteria specify concentrations of water constituents
which, if not exceeded, are expected to support an aquatic ecosystem
suitable for the higher uses of water. Such criteria are derived from
scientific facts obtained from experimental or in situ observations that
depict organism responses to a defined stimulus or material under
identifiable or regulated environmental conditions for a specified time
period.
Water quality criteria are not intended to offer the same degree of
safety for survival and propagation at all times to all organisms within
a given ecosystem. They are intended not only to protect essential and
significant life in water, as well as the direct users of water, but
also to protect life that is dependent on life in water for its
existence, or that may consume intentionally or unintentionally any
edible portion of such life.
The criteria levels for domestic water supply incorporate available
data for human health protection. Such values are different from the
criteria levels necessary for protection of aquatic life. The Agency's
interim primary drinking(()) water regulations (40 Federal Register
59566 December 24, 1975), as required by the Safe Drinking Water Act (42
U.S.C. 300f et seq.), incorporate applicable domestic water supply
criteria. Where pollutants are identified in both the quality criteria
for domestic water supply and the Drinking Water Standards, the
concentration levels are identical. Water treatment may not
significantly affect the removal of certain pollutants.
What is essential and significant life in water? Do Daphnia or
stonefly nymphs qualify as such life? Why does 1/100th of a
concentration that is lethal to 50 percent of the test organisms (LC50)
constitute a criterion in some instances, whereas 1/20 or 1/10th of some
effect levels constitute a criterion in other instances? These are
questions that often are asked of those who undertake the task of
criteria formulation.
The universe of organisms composing life in water is great in both
kinds and numbers. As in the human population, physiological
variability exists among individuals of the same species in response to
a given stimulus. A much greater response variation exists among
species of aquatic organisms. Thus, aquatic organisms do not exhibit
the same degree of harm, individually or by species, from a given
concentration of a toxicant or potential toxicant within the
environment. In establishing a level or concentration of a quality
constituent as a criterion it is necessary to ensure a reasonable degree
of safety for those more sensitive species that are important to the
functioning of the aquatic ecosystem even though data on the response of
such species to the quality constituent under consideration may not be
available. The aquatic food web is an intricate relationship of
predator and prey organisms. A water constituent that may in some way
destroy or eliminate an important segment of that food web would, in all
likelihood, destroy or seriously impair other organisms associated with
it.
Although experimentation relating to the effects of particular
substances under controlled conditions began in the early 1900's, the
effects of any substance on more than a few of the vast number of
aquatic organisms have not been investigated. Certain test animals have
been selected by investigators for intensive investigation because of
their importance to man, because of their availability to the researcher
and because of their physiological responses to the laboratory
environment. As general indicators of organism responses such test
organisms are representative of the expected results for other
associated organisms. In this context Daphnia or stoneflies or other
associated organisms indicate the general levels of toxicity to be
expected among untested species. In addition, test organisms are
themselves vital links within the food web that results in the fish
population in a particular waterway.
The ideal data base for criteria development would consist of
information on a large percentage of aquatic species and would show the
community response to a range of concentrations for a tested constituent
during a long time period. This information is not available but
investigators are beginning to derive such information for a few water
constituents. Where only 96-hour bioassay data are available,
judgmental prudence dictates that a substantial safety factor be
employed to protect all life stages of the test organism in waters of
varying quality, as well as to protect associated organisms within the
aquatic environment that have not been tested and that may be more
sensitive to the test constituent. Application factors have been used
to provide the degree of protection required. Safe levels for certain
chlorinated hydrocarbons and certain heavy metals were estimated by
applying an 0.01 application factor to the 96 hour LC50 value for
sensitive aquatic organisms. Flow-through bioassays have been conducted
for some test indicator organisms over a substantial period of their
life history. In a few other cases, information is available for the
organism's natural life or for more than one generation of the species.
Such data may indicate a minimal effect level, as well as a no-effect
level.
The word "criterion" should not be used interchangeably with, or as a
synonym for, the word "standard." The word "criterion" represents a
constituent concentration or level associated with a degree of
environmental effect upon which scientific judgment may be based. As it
is currently associated with the water environment it has come to mean a
designated concentration of a constituent that when not exceeded, will
protect an organism, an organism community, or a prescribed water use or
quality with an adequate degree of safety. A criterion, in some cases,
may be a narrative statement instead of a constituent concentration. On
the other hand a standard connotes a legal(()) entity for a particular
reach of waterway or for an effluent. A water quality standard may use
a water quality criterion as a basis for regulation or enforcement, but
the standard may differ from a criterion because of prevailing local
natural conditions, such as naturally occurring organic acids, or
because of the importance of a particular waterway, economic
considerations, or the degree of safety to a particular ecosystem that
may be desired.
Toxicity to aquatic life generally is expressed in terms of acute
(short-term) or chronic (long-term) effects. Acute toxicity refers to
effects occurring in a short time period; often death is the end point.
Acute toxicity can be expressed as the lethal concentration for a
stated percentage of organisms tested, or the reciprocal, which is the
tolerance limit of a percentage of surviving organisms. Acute toxicity
for aquatic organisms generally has been expressed for 24- to 96-hour
exposures.
Chronic toxicity refers to effects through an extended time period.
Chronic toxicity may be expressed in terms of an observation period
equal to the lifetime of an organism or to the time span of more than
one generation. Some chronic effects may be reversible, but most are
not.
Chronic effects often occur in the species population rather than in
the individual. If eggs fail to develop or the sperm does not remain
viable, the species would be eliminated from an ecosystem because of
reproductive failure. Physiological stress may make a species less
competitive with others and may result in a gradual population decline
or absence from an area. The elimination of a microcrustacean that
serves as a vital food during the larval period of a fish's life could
result ultimately in the elimination of the fish from an area. The
phenomenon of bioaccumulation of certain materials may result in chronic
toxicity to the ultimate consumer in a food chain. Thus, fish may
mobilize lethal toxicants from their fatty tissues during periods of
physiological stress. Egg shells of predatory birds may be weakened to
a point of destruction in the nest. Bird chick embryos may have
increased mortality rates. There may be a hazard to the health of man
if aquatic organisms with toxic residues are consumed.
The fact that living systems, i.e. individuals, populations, species
and ecosystems can take up, accumulate, and bioconcentrate man-made and
natural toxicants is well documented. In aquatic systems blots are
exposed directly to pollutant toxicants through submersion in a
relatively efficient solvent (water) and are exposed indirectly through
food webs and other biological, chemical, and physical interactions.
Initial toxicant levels, if not immediately toxic and damaging, may
accumulate in the biota or sediment over time and increase to levels
that are lethl or sublethally damaging to aquatic organisms or to
consumers of these organisms. Water quality criteria reflect a
knowledge of the capacity for environmental accumulation, persistence,
and effects of specific toxicants in specific aquatic systems.
Ions of toxic materials frequently cause adverse effects because they
pass through the semipermeable membranes of an organism. Molecular
diffusion through membranes may occur for some compounds such as
pesticides, polychlorinated biphenyls and other toxicants. Some
materials may not pass through membranes in their natural or
waste-discharged state, but in water they may be converted to states
that have increased ability to affect orgnisms. For example, certain
microorganisms can methylate mercury thus producing a material that more
readily enters physiological systems. Some materials may have multiple
effects; for example an iron salt may not be toxic, an iron floc or gel
may be an irritant or clog fish gills to effect asphyxiation, iron at
low concentrations can be a trace nutrient but at high concentrations it
can be a toxicant. Materials also can affect organisms if their
metabolic byproducts cannot be excreted. Unless otherwise stated,
criteria are based on the total concentration of the substance because
an ecosystem can produce chemical, physical and biological changes that
may be detrimental to organisms living in or using the water.
In prescribing water quality criteria certain fundamental principles
dominate the reasoning process. In establishing a level or
concentration as a criterion for a given constituent it was assumed that
other factors within the aquatic environment are acceptable to maintain
the integrity of the water. Interrelationships and interactions among
organisms and their environment, as well as the interrelationships of
sediments and the constituents they contain to the water above, are
recognized as fact.(())
Antagonistic and synergistic reactions among many quality
constituents in water also are recognized as fact. The precise
definition of such reactions and their relative effects on particular
segments of aquatic life have not been identified with scientific
precision. Historically, much of the data to support criteria
development was of an ambient concentration-organism response nature.
Recently, data are becoming available on long-term chronic effects on
particular species. Studies now determine carcinogenic, teratogenic,
and other insidious effects of toxic materials.
Some unpolluted waters in the nation may exceed designated criteria
for particular constituents. There is variability in the natural
quality of water and certain organisms become adapted to that quality
which may be considered extreme in other areas. Likewise, it is
recognized that a single criterion cannot identify minimal quality for
the protection of the integrity of water for every aquatic ecosystem in
the nation. To provide an adequate degree of safety to protect against
long-term effects may result in a criterion that cannot be detected with
present analytical tools. In some cases, a mass balance calculation can
provide a means of assurance that the integrity of the waterway is not
being degraded.
Water quality criteria do not have direct regulatory impact, but they
form the basis for judgment in several Environmental Protection Agency
programs that are derived from water quality considerations. For
example, water quality standards developed by the States under Section
303 of the Act and approved by EPA are to be based on the water quality
criteria, appropriately modified to take account of local conditions.
The local conditions to be considered include actual and projected uses
of the water, natural background levels of particular constituents, the
presence or absence of sensitive important species, characteristics of
the local biological community, temperature and weather, flow
characteristics, and synergistic or antagonistic effects of combinations
of pollutants.
Similarly, by providing a judgment on desirable levels of ambient
water quality, water quality criteria are the starting point in deriving
toxic pollutant effluent standards pursuant to Section 307(a) of the
Act. Other EPA programs that make use of water quality criteria include
drinking water standards, the ocean dumping program, designation of
hazardous substances, dredge spoil criteria development, removal of
in-place toxic materials, thermal pollution, and pesticide registration.
To provide the water resource protection for which they are designed,
quality criteria should apply virtually to all of the nation's navigable
waters with modifications for local conditions as needed. To violate
quality criteria for any substantial length of time or in any
substantial portion of a waterway may result in an adverse effect on
aquatic life and perhaps a hazard to man or other consumers of aquatic
life.
Quality criteria have been designed to provide long-term protection.
Thus, they may provide a basis for effluent standards, but is is not
intended that criteria values become effluent standards. It is
recognized that certain substances may be applied to the aquatic
environment with the concurrence of a governmental agency for the
precise purpose of controlling or managing a portion of the aquatic
ecosystem; aquatic herbicides and aquatic piscicides are examples of
such substances. For such occurrences, criteria obviously do not apply.
It is recognized further that pesticides applied according to official
label instructions to agricultural and forest lands may be washed to a
receiving waterway by a torrential rainstorm. Under such conditions it
is believed that such diffuse source inflows should receive
consideration similar to that of a discrete effluent discharge and that
in such instances the criteria should be applied to the principal
portion of the waterway rather than to that peripheral portion receiving
the diffuse inflow.
The format for presenting water quality criteria includes a concise
statement of the dominant criterion or criteria for a particular
constituent followed by a narrative introduction, a rationale that
includes justification for the designated criterion or criteria, and a
listing of the references cited within the rationale. An effort has
been made to restrict supporting data to those which have either been
published or are in press awaiting publication. A particular
constituent may have more than one criterion to ensure more than one
water use or condition, i.e. hard or soft water where applicable,
suitability as a drinking water supply source, protection of human
health when edible portions(()) of selected biota are consumed,
provision for recreational bathing or water skiing, and permitting an
appropriate factor of safety to ensure protection for essential warm or
cold water associated biota.
Criteria are presented for those substances that may occur in water
where data indicate the potential for harm to aquatic life, or to water
users, or to the consumers of the water or of the aquatic life.
Presented criteria do not represent an all-inclusive list of constituent
contaminants. Omissions from criteria should not be construed to mean
that an omitted quality constituent is either unimportant or
non-hazardous.
HRG COR GRA
770420
STANLEY W. LEGRO ROBERT B. SCHAFFER JEFFREY G. MILLER JOHN A. S.
MCGLENNON ROBERT C. THOMPSON HARLEY F. LAING RICHARD A. FLYE HOWARD
ZELLER GAIL C. GINSBERG GARY S. MILBURN
ASSISTANT ADMINISTRATOR FOR ENFORCEMENT, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY DIRECTOR, EFFLUENT GUIDELINES DIVISION, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY DEPUTY ASSISTANT ADMINISTRATOR FOR WATER
ENFORCEMENT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGIONAL
ADMINISTRATOR, REGION I, BOSTON, UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY REGIONAL COUNSEL, REGION I, BOSTON, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY ASSISTANT REGIONAL COUNSEL, REGION I, BOSTON, UNITED
STATES ENVIRONMENTAL PROTECTION AGENCY CHIEF, WATER ENFORCEMENT BRANCH,
REGION II, NEW YORK, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
DEPUTY DIRECTOR, ENFORCEMENT, REGION IV, ATLANTA, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY CHIEF, LITIGATION UNIT, LEGAL SUPPORT
SECTION, REGION V, CHICAGO, UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY AQUATIC BIOLOGIST, REGION V, CHICAGO, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT -- 1977
(THERMAL POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER
GENERATION) 1977, TESTIMONY OF STANLEY W. LEGRO, ASSISTANT ADMINISTRATOR
FOR ENFORCEMENT, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND
OTHERS (PP 384 TO 394) CONTINUATION
--
--
95-217
--
CW270078 CW270088
05784
(())
Mr. KROUSE. Does not section 303, in fact, create quite an active
role for the EPA administrator in zhis area, section 303 of Public Law
92-500?
Mr. MILLER. Yes, it does. His is supposed to develop those
criteria.
Mr. GINN. I have several more questions but I have already violated
my own 5-minute rule. Mr. Ertel, do you have a question?
Mr. ERTEL. Yes, Mr. Chairman. I am very curious about this. I
followed this interplay about the temperature that is set for I month
and then drops off for the next month. The answer seems to me to be
that we follow the State standards, but then it comes back to the fact
that the Administrator is supposed to assist the State. You cannot have
it both ways. Either you are involved in helping the State set the
standards or you are not. If you are involved, then you have to take
the responsibility for having this tremendous gradient difference, one
way or the other.
Mr. LEGRO. Your point is very well taken. When EPA is working with
the States, we certainly have the responsibility to try to give them the
best advice that we can to try to avoid any sort of problem. But I
think, in the final analysis, the structure of the act is that the State
actually makes the decision in these areas. While EPA can advise, the
State is the decisionmaker.
Mr. ERTEL. Well, in fact, in this particular incident, was the
Environmental Protection Agency involved?
Mr. LEGRO. I think it would be helpful if we could go to region V
and get the precise details surrounding this and provide it to you. We
would be happy to do it.
Mr. ERTEL. If EPA was involved, someone ought to have examined it
with them so it could be identified as a ridiculous standard. It could
be disavowed.
Mr. LEGRO. We will be happy to provide it for you. (The following
was provided for the record:)
Basically the issue raised reflects concern with that provision of
Indiana water quality standards which specifies a maximum temperature of
90 F for September and a maximum temperature of 78 F for October
(Indiana Regulations, SPC 1R-3, Sec. 6). The practical effect of this
regulation is to create a great disparity between the stream
temperatures allowed on September 30 and on October 1 of any particular
year.
Some historical background on the development of the Indiana thermal
standards may clarify this disparity. The Indiana temperature criteria
for the Ohio River mainstem were derived from recommendations adopted by
the Ohio River Sanitation Commission (ORSANCO) in 1970. The standards
were based on approximately 10 years of historical data, picking out the
highest numbers, and reflected those temperatures which the utility
industry believed it could meet. For the tributaries ORSANCO proposed
to add 1 F to the summer maximums. (Ohio River maximum -- 89 F;
tributary maximum -- 90 F). This proposal was subsequently adopted by
Indiana. September was included in the 90 F months because of high
temperatures which might carry over from August at the beginning of the
month. Keep in mind that the temperature maximums(()) reflect the
highest expected for each month; the 90 F reading is highly unlikely
for the end of September. Subsequently to the adoption of the ORSANCO
Standards, industry discovered tnat under certain conditions it would
violate the temperature maximums. Accordingly, ORSANCO adopted a 3 F
variance one percent of the time.
It should also be noted that the ORSANCO standards are designed to
protect the least thermally sensitive species expected to occur. Dr.
Donald Mount, Director of the National Water Quality Laboratory at
Duluth, Minnesota, recommended 3 levels of protection to the ORSANCO
Steering Committee on September 9, 1969:
GRAPHIC OMITTED
Although Dr. Mount warned the Committee that the Level II and III
maximums were too high to protect certain Midwest species (e.g. Sauger),
the Committee nonetheless adopted the high maximums. The 78 F maximum
for October was, as noted above, based upon historical records and is
probably lower than absolutely necessary for the protection of aquatic
life. The 90 F limitation protects only the least sensitive fish
species and not the full range of fish species indigenous to the Ohio
River and other Midwest streams such as the Wabash. Thus any excursion
above the 90 F limitation must be viewed with even greater concern.
It should be noted that the United States Environmental Protection
Agency (U.S. EPA) is well aware of this discrepancy in the standards.
Witness the fact that all 316(a) requests to date for Indiana and Ohio
discharges to the Ohio River have been granted. Indiana is currently
conducting its triennial review of water quality standards pursuant to
Section 303 of the Federal Water Pollution Control Act. U.S. EPA has
encouraged the State to follow the most recent temperature criteria, as
reflected in the National Academy of Sciences "Blue Book" in setting
thermal standards. Instead Indiana has chosen to retain its present
thermal standards, with the addition of the ORSANCO variance. This
addition, which would remedy the 90 -78 situation, would also
unfortunately allow thermal discharges to raise a river to 92 F (93 F in
the Wabash) for about 4 days/year, a condition which is unsupported by
the current state of thermal knowledge. U.S. EPA has communicated to
the State its dissatisfaction with these standards. The 3 F variance
would be acceptable only if accompanied by a proportionate reduction of
the 90 F monthly maximum. U.S. EPA has requested that the state review
its standards in light of the recommendation in zhe National Academy of
Sciences' publication, Water Quality Criteria 1972. Such criteria would
be more protective of aquatic life in Indiana waters and more
scientifically defensible. The matter is still pending between U.S. EPA
and the State agency.
Mr. MILLER. One point in clarification in regard to this it applies
to water quality standards as well as conditions in permits, and that is
that the Federal Government is responsible for setting certain minimum
criteria or minimum stndards, but a State is perfectly fre under the act
to go beyond that if it wishes to. We cannot second guess a State
standard that we think is unreasonable for one reason or another as long
as it is not less stringent than the criteria set by the Federal
Government.
Mr. ERTEL. We may be enforcing State standards which we feel are not
appropriate. Maybe we need new legislation.
Mr. MILLER. Yes; I think that is a question that Congress could
address.(())
Mr. LEGO. If I might add, this relates very much to the issue that
was raised in the union Electric case that Mr. Levitas mentionec
earlier, and that is the relative roles of the States and the Federal
Government in setting standards. The case he was talking about had to
do with EPA approval. EPA was required to approve a State
implementation plan so long as it, EPA, determined that if the plan were
put into effect, the result would be to meet the ambient air standards
-- whether or not EPA agreed with it or thought it could practicably be
put into effect. We have the same kind of issue here, one of
federalism, the roles of EPA and the States. And the fact is that the
States do get to make the final decision on water quality standards.
Mr. ERTEL. We have to see if the person responding is in a catch 22
situation.
Ms. GINSBERG. May I make two points in that regard because I do not
think there is a catch 22 situation. The anomaly that you sense is
something that 316(a), I believe, is designed to handle. If there is
what appears to be an unreasonable or an arbitrary standard, although I
am not sure that is the case, 316(a) can handle it. And with respect to
the PSI, Cayuga and Wabash, it was not a consideration. It was not a
problem. It is not used. Even though the standards might appear
anomalous, it is not being used in an anomalous way.
Mr. MILLER. If a party feels aggrieved, he does have recourse to
challenge in a state court what considers to be an arbitrary State
action.
Mr. ERTEL. You are putting a person through a tremendous legal
process when, in fact, it should have been handled by administrative
oversight to begin with. Whether or not it actually affected that
situation, the question is whether it could be applied in the future.
Mr. MILLER. EPA does not have the authority to do that under the
present statute.
Mr. ERTEL. This is a possibility for change.
Mr. LEGRO. I think that while it is desirable to have uniformity of
result in many of these cases, and one can point to situations where
there appears to be some conflict between the result that a State has
reached and a result that perhaps EPA might reach, I think we have to
proceed very cautiously because we are dealing with some rather
fundamental concepts of federalism. Certainly the structure of
environmental laws does, and I think rightfully so, give a lot of
responsibility in decisionmaking authority to the States. And I think
that is a very important concept, Mr. Ertel.
Mr. ERTEL. If I may address that point, the concept of federalism is
not necessarily involved. If the Federal Government is enforcing a
State standard, we can in fact not enforce it.
I have some other questions. You talk about the application of best
technology to minimize the environmenzal impact. I'm wondering where in
the receiving body of water do you measure that impact? At the
discharge? How far from the discharge point? And for what period do
you have to have information about your receiving body of water?
Mr. MILLER. That is a question that is as complex as the earlier one
with regard to what point in time do you measure a balanced indigenous
population, and it has to be made on a very site-specific(()) basis,
depending upon a particular conriguration of flow and hydrology of the
water, and the kinds of organisms you find in it. There really is no
easy answer to that.
Mr. SCHAFFER. I think that describes it. It depends upon the
site-specific water body characteristics.
Mr. ERTEL. In fact, may we not make a decision that within a
specific area or specific stretch in a body of water that we are willing
to sacrifice an ecosystem for the balancing consideration of power or
its equivalent because we know it is sufficiently intact down the stream
-- unless we have powerplants down the stream? Has that been addressed
in the regulation at all?
Mr. MILLER. It may or may not. If your thermal plume or your intake
structure is affecting the whole width of the stream, or affecting that
part of the stream in which the bulk of your fish larvae are found, you
may in fact destroy the balance all the way downstream. In the case of
Seabrook, for instance, the concern is in part the affect of the
powerplant on soft-shell clam larvae in the entire Gulf of Maine.
We have addressed that and given some guidance of how to look at it
in specific cases in the development documents and technical manuals,
and we will ask for public comment on this with the notice of
availability of revised 316(a) and 316(b) manuals which will be out
presently.
Mr. ERTEL. Are you saying that you have or you do not have these
manuals now? I did not follow your answer. You are asking for public
comments on them now?
Mr. MILLER. We have some guidance in the existing manuals. We are
asking for additional guidance to help us develop a more clear-cut
policy.
Mr. ERTEL. What you are saying is that at the present time you have
basically inadequate standards to make those judgments?
Mr. MILLER. We are making them very much on a case-by-case
determination. We do not have exact standards applied nationally.
Mr. LEGRO. If I could further respond to that, sir, I think as Mr.
Miller and Mr. Schaffer had indicated, it really lends itself to a
case-by-case determination. I think that we have shared the kinds of
concerns that you are expressing, that there may be some principles that
we could establish, some better guidance that we could give that would,
while retaining most of the features of the case-by-case determination,
bring more standardization to these determinations. That is what we are
seeking public comments on, to try to determine whether or not we can be
more exact in the guidance than we have been to date.
Mr. SCHAFFER. There are gray areas, but there are situations where
the powerplant may use the total flow of a river. There are instances
where combinations of thermal discharges may cause blockages in the
river during the migration of an important species and these are
situations we know about. The other situations you describe as they
start to broaden out are the ones we are concerned with and getting
further comment on and looking at in more detail.
Mr. ERTEL. I am curious. In how many rivers do you have total
thermal blockages from a powerplant discharge? Do you have any?(())
Mr. SCHAFFER. I do not have an answer today on the number.
Mr. ERTEL. I think that may be a possibility, but it just does not
seem to me it is an actuality or even a probability.
Mr. MILBURN. Under what flow conditions are you speaking about, if I
may interject?
Mr. ERTEL. I assume anybody designing a water plant would anticipate
a necessary flow for his cooling tower. I do not think he would intend
at low flow for it to take the entire river flow.
Mr. MILBURN. That is not true in region V. We have numerous rivers
where the entire flow is taken.
Mr. ERTEL. Of what?
Mr. MILBURN. Under adverse flow conditions.
Mr. ERTEL. How adverse?
Mr. MILBURN. Once in 10 years.
Mr. ERTEL. One plant or more?
Mr. MILBURN. Both - Wabash and Cayuga. It also occurs on the
Muskingum River and the White River and probably numerous others.
Mr. ERTEL. Has there been any suggestion that the design intake of
those plants be altered so they wouldn't take the entire flow?
Mr. MILBURN. We are determining that.
Mr. GINSBERG. That is part of the 316(a) consideration for the
Cayuga and Wabash River stations.
Mr. ERTEL. You are talking about adjudicatory hearings. Since you
do not have final standards, how can you have adjudicatory hearings
applying standards that do not exist?
Mr. LEGRO. I do not think any of us indicated we acted without any
standards.
Mr. ERTEL. You said you were trying to complete standards. That
indicates you do not have complete standards. How can you have an
adjudicatory hearing if you do not have standards?
Mr. LEGRO. To clarify the record, as I understand it, the questions
you asked with regard to the size of the receiving body of water, we
indicated that the current standard that we used was based upon a
case-by-case determination. As Mr. Schaffer amplified, there are some
cases where it is quite clear that what you are looking at is the entire
body of water.
In the case where they are using the whole flow, certainly we have
standards for decisionmaking. What we are talking about is perhaps
bringing a greater degree of certainty to the application of the
standards that we now apply.
As far as the adjudicatory hearing, that gives everyone an
opportunity to come in and provide evidence relating to whether or not a
316(a) variance should be granted. But certainly nothing should be left
on the record to imply that we are holding these hearings without any
standards. The fact that guidance manuals are being revised does not
mean we do not have standards.
I do not think the fact that we have standards should cause us to be
complacent or not seek to improve those standards; but the fact that we
are seeking to refine and improve them should not indicate we are
currently moving ahead without any standards.
Mr. ERTEL. The testimony as I recall yesterday was basically that
the standard of proof changed prior to the adjudicatory process. At(())
one point the proof was on the Agency and another time it was on the
applicant. The issue of shifting standards during the decisionmaking
process itself brings me to my next question.
Mr. LEGRO. I do not think there is any question under 316(a) but
that the applicant has the burden. I do not think there should be any
doubt about it.
Mr. ERTEL. It was 316(b), as I recall the testimony yesterday.
Mr. MILLER. We are talking about two different things. One, who is
it who has the burden of proof in an adjudicatory hearing; and second,
what is the standard that has to be shown? The standard is whether you
protected a balanced, indigenous population. That is the statutory
standard.
I think it is useful to view the questions that you are asking in the
context of any law as it is interpreted over a period of time by the
courts. The standard is protection of a balanced, indigenous
population.
What does that mean in the specific cases? What is the population
you are trying to protect? Where are you trying to protect it? And if
these decisions were being made by a court of law, as opposed to an
administrative agency you, in fact, would approach them on a
case-by-case basis. And over a period of time you would have built up
some precedential law as to what it means in the interstices.
The Agency has tried to proceed in that fashion for a very practical
reason. These situations are very site specific and very different, and
an attempt at an early date to structure a rule or an interpretation
probably in the long run would not have worked very well. We have at
this point enough studies and are starting to get some determinations
coming out of the 316 process in the adjudicatory hearings that will
give us the experience, hopefully, to fashion some more discrete
standards to fill in these interstices. But it is a process which has
required us to get into a lot of factual situations before we would be
prepared to do so.
Mr. ERTEL. Mr. Chairman, I want to take just a few more minutes and
then I will be through.
You happen to be in a different type process. You are in a licensing
process, not a determination after the fact, not an adjudicatory
process. Somebody is trying to determine how to meet standards and
whether they can go forward ahead of time. Your analogy to a court
proceeding is not what I would expect. Is there another type of
proceeding which would serve the function better than an adversary type
of proceeding?
And, secondly, what training do the people have who are making those
decisions in the adversary proceeding, for instance, the appeal process,
like your Regional Administrators?
Mr. MILLER. They have a variety of backgrounds.
Mr. ERTEL. What criteria is established for them within the Agency
to become a Regional Administrator, if any?
Mr. LEGRO. The criteria is one of a determination of a high level of
a general competence, an executive decisionmaker. There is not a
specific requirement, for instance, that they be an attorney or a member
of the bar.
Mr. ERTEL. Any kind of a technical background? I heard one Regional
Administrator say he had not read the entire record and he made a
decision. It seems to me this should be determined possibly by(()) a
technical panel rather than an individual decisionmaker. I am
questioning the process. Should there be an environmental court or some
other kind of adjudicatory body, with a person with technical expertise
seated on the board, that would then have the combined knowledge to be
able to make these decisions possibly better than in the present
proceedings?
Mr. LEGRO. I think when we talk about the present proceedings, the
Seabrook case, one must remember that in addition to the decision by the
Regional Administrator, where there has been an adverse determination,
there is an appeal to the Administrator of the Environmental Protection
Agency. The Administrator has a very well trained, highly educated
attorney who is the judicial officer on that. All of the Administrators
of the Environmental Protection Agency to date have been attorneys, so I
do not think that we could get a complete picture by just looking at it
at the regional level without recognizing that, first of all, there is
this appeal to the Administrator of the Environmental Protection Agency.
Secondly, there is recourse to the U.S. court of appeals. There is an
ample amount of highly skilled and specialized legal minds to look at
these cases before an ultimate determination is made.
Mr. ERTEL. Any determination is adverse to somebody, whether it is
adverse to the applicant or the environmental groups, and it seems to me
to give the answer that there is an appeal process does not answer the
question at the initial stage of the hearing where we want to have the
best possible decision made.
I remember a person in law school, and every time the instructor
asked him if he got an adverse opinion what would he do, he said:
"Appeal." Somewhere along the line that is not the answer. We must try
to get a better decision lower down.
I would like to get a comment on whether you think it would be more
appropriate to have a panel at this lower level and limit the appeal
process, which costs everybody money and time, whether it be
environmentalists or the power companies. The longer we delay, we deny
justice and, secondly, it becomes expensive.
Mr. LEGRO. We would agree with you totally. Often justice delayed
is justice denied, and anything we can do to not only improve the
quality of the decisionmaking, but to make it more expeditious is
desirable. That is the goal that we have to have. The suggestions that
you have made are things that we certainly ought to give serious
consideration to as to whether or not we can interject a group of
scientists or attorneys at an early stage of the process in a more
formalized way, to either make decisions or at least make
recommendations to the Regional Administrator before he makes his
decision. We will give serious consideration to that. These are areas
to consider for possible improvements in our process.
Mr. ERTEL. Thank you. I have well exceeded my time.
Mr. MILLER. Could I add just a couple of comments to that?
Mr. ERTEL. Certainly.
Mr. MILLER. We have out for comment in the Federal Register some
sweeping proposed amendments to our adjudicatory hearing process. We
have received a great many comments, very involved and thoughtful
comments, from all sectors of people whom we affect, regulated industry
and environmental groups, and none of those comments suggest this panel
kind of approach.(())
I do not know whether that is because they are primarily drawn up by
lawyers who are familiar with the existing legal process or not.
However, when you talk to your panel of biologists tomorrow, I think
you will find that if you get two or three biologists in the room and
ask them one question, you will get three answers. I am not sure you
are going to get any better decisionmaking by having a committee than by
having a decision made by one person. You can hold one person
accountable. That is more difficult when you have a decision made by a
number of people.
Mr. ERTEL. If that is true, then we ought to abolish the Supreme
Court, where we have decisions made by nine men, and also the court of
appeals. Each man has to go on record as to his decisionmaking. A
little technical expertise at the decisionmaking level gives you some
background. I am not convinced that an attorney is always the best one
to make a decision.
Mr. LEGRO. There is merit to what you are saying. We will explore
the possibility of bringing technical and scientific people more into
the decisionmaking process. It would be a mistake for us to have a
closed mind or to believe that the way we are doing things now is
necessarily the right or best way. Those are things that deserve
serious exploration. We will do that.
Mr. ERTEL. Thank you.
Thank you, Mr. Chairman.
Mr. GINN. Mr. Cornwell.
Mr. CORNWELL. One of the disadvantages of being a freshman committee
member is that I do not get an opportunity to ask the good questions.
Therefore, I will try another angle.
We have been talking about three areas, the Hudson River, the Wabash
River, and Seabrook station. As a result of Mr. Ertel's questions, we
have found out that, No. 1, all of the Regional Administrators are
attorneys; is that correct?
Mr. LEGRO. No; that is not correct. They are not all attorneys.
Nor is there any requirement that they be attorneys.
Mr. CORNWELL. They are selected on general capabilities?
Mr. LEGRO. General competence.
Mr. CORNWELL. I will start with region V because it is closer to
home. How many times has the Regional Administrator been down to Wabash
and Cayuga? Zero.
How many times to Seabrook?
Mr. McGLENNON. Once to the town of Seabrook, where I held a hearing.
Mr. MILLER. There is no facility there.
Mr. CORNWELL. I realize that.
Hudson River?
Mr. FLYE. Our Regional Administrator has been to the Hudson and to
the plants. How many times, I am not exactly sure.
Mr. CORNWELL. Do you not think it is necessary that the
administrators and higher echelons of Environmental Protection Agency
people and those members who make the decisions become as fully aware of
the projects as possible?
Mr. LEGRO. I agree with you that it is necessary that decisionmakers
become as aware as possible of the relevant aspects of the subject
matter for the decision, but for the same reasons that judges do not
go(()) out to the scene of the incidents unless somebody requests them
to because there is something the court could perceive by being
physically present that might impact the decision, I think the same
principle holds true here. Certainly where there is some reason to have
someone go out, there is not anything as far as the administrative law
judge is concerned that would prohibit that. It would depend on whether
or not being a precipitant witness would be relevant to the making of a
decision in a particular case.
In 316(a) and 316(b), the regional administrator is making a
determination based upon a record and certainly that record could
include photographs and various things from the site.
I agree with your general proposition that it is desirable that the
decisionmaker have as much specific information as possible. It does
not mean that a site visit in every case would be even unecessary or
desirable.
Mr. CORNWELL. I think it is. It would be ludicrous for me to think I
am only supposed to go back to my district as a Congressman when my
people want me to come back. The idea is to keep in touch with what is
actually of concern in the local area. I would hope that the members of
the Environmental Protection Agency or those working for the
Environmental Protection Agency would try to make a more in-depth study
to find out as much as possible on site rather than relying on paperwork
and working in offices 22 stories up in the air.
Mr. LEGRO. We have a lot of people within EPA who would actually
visit the site and spend a lot of time. The question is whether or not
the regional administrator himself, prior to deciding the appeal, should
go out there. Our current practices do not provide for that. That is
something that we can look into in connection with the comments we get
on our revised adjudicatory hearing regulations. We could explore this
from the point of view of the industry and the environmental community
to find out if that would be a desirable thing to do. We will follow
through on that.
Mr. ERTEL. Thank you.
Mr. MILLER. The procedures that the Environmental Protection Agency
presently has, in fact, encourage the agency in controversial cases to
hold public hearings in the locale of the facility for which we are
issuing a permit.
In the Seabrook case, there were two hearings held in Seabrook that
were attended by over 500 people. There was very ample opportunity for
the regional administrator and others in the Agency to be apprised as to
what the local sentiment was. That is the case in many permit
proceedings. The question of whether a regional administrator would
gain anything by making a plant visit, I think, is another question.
Looking at the ocean or the estuary from the shore is really not
going to help you very much in making an evaluation as to what the
balanced indigenous population is or what the effect of heat will be.
You are talking about things you cannot see.
There are two issues, one is to what extent are the Agency and Agency
decisionmakers aware of what the local population feels. I think that
our procedures and the practices of the regional administrators visiting
all parts o their region make the Agency very well aware of their ideas.
That is a different issue than plant sites. It may in some cases be a
help, but I do not think so in most cases.(())
Mr. CORNWELL. I applaud your efforts at Seabrook regarding the
public hearings. That is all I have, Mr. Chairman, thank you.
Mr. GINN. Are there any questions by any of our staff? If not, the
Chair gives permission to have three items inserted in the record. One
is a letter from our committee to Mr. Costle inviting you gentlemen and
Ms. Ginsberg to appear. Next is a letter from Mr. Legro dated March 8,
1977, to Mr. Krouse of our staff which includes a statistical
tabulation, and, third, there is an interagency memorandum, an
Environmental Protection Agency memoranda dated February 14, 1975.
In addition, the Chair ask permission, if there is no objection, for
several members who had to leave to submit some questions to Mr. Legro
and EPA to be answered for us.
Mr. LEGRO. Yes, sir, we would be happy to do that, and if the Chair
or anyone else on the committee thanks of anything further, we would be
happy to provide it either in written form or informally to Mr. Krouse
or others on your staff. Whatever is most convenient to your committee.
(The referenced documents and questions and answers follows:)
COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION,
HOUSE OF REPRESENTATIVES
Washington, D.C., March 22, 1977.
HON. DOUGLAS M. COSTLE,
Administrator, Environmental Protection Agency,
Waterside Mall, Washington, D.C.
DEAR MR. COSTLE: Let me begin by offering you my most sincere
contratulations on your confirmation as administrator of the
Environmental Protection Agency. While we have not had the pleasure of
becoming personally acquainted, I understand you to be eminently
qualified to head this very prestigious agency and to assume one of the
most difficult administrative assignments in Washington.
I wish you the best of luck and, as chairman of the Subcommittee on
Investigations and Review, look forward to working with you in the
period ahead.
Our Subcommittee has held "oversight" hearings on the water pollution
abatement program periodically for almost four years. Various phases of
the program have been examined and recommendations have flowed from the
Subcommittee into the administrative and legislative mainstreams.
I believe it is fair to characterize the relationship between the
agency and the Subcommittee as one of cooperation and compatibility.
Once more the Subcommittee is looking at another important phase of
the water program. For some time, the Subcommittee staff has been
examining the regulation of the steam electric power industry, the
providers of the nation's electrical energy. The activities being
carried out under Sections 301, 306, 316 and other sections of PL 92-500
assume critical importance at this time because of the interrelated
character of environmental, energy, and economic issues. There is an
obvious need to establish fair procedures under which balance can be
achieved among sometimes conflicting national goals.
The Subcommittee plans to begin hearings on the steam electric
program on April 19-20-21. A variety of witnesses will be heard and
specific situations reviewed.
It would be most appropriate to begin this hearing by having the
Environmental Protection Agency report what has transpired in the
four-year history of this regulatory program. It would be appreciated
if you, as the new administrator, and key associates who have been
associated with the program's evolution, could provide the Subcommittee
with a broad status report. Some areas of particular interest are:
EPA's current attitude toward the definition of heat as a pollutant,
and the severity of the heat problem attributable to the operation of
power generating facilities now and in the future.
A historical recapitulation of EPA's effort to carry out power
industry-related provisions of the Act. Identify currently operative
regulations, the status of court suits, and the extent to which
adjudicatory processes are being utilized.(())
A statistical analysis of what is being required by the industry to
meet the effluent limitations associated with BPT. BAT, and state water
quality standards. What is the number (percent) of operating plants it
is estimated will have to be retrofitted with cooling towers by 1983?
What other cooling systems are premissible and to what extent are they
being adopted?
Explain the extent to which economic factors have been considered in
the steam electric control program. National energy needs? The
economic externalities (if at all) in a given community or region? What
factors went into the development of the Section 301 and 306 effluent
guidelines and are considered in their site specific application?
Explain the functioning of the Section 316(a) exemption provision.
Quantify to the extent possible how many times dischargers have been
able to demonstrate to the satisfaction of the administrator that
something less than the effluent requirements of Section 301 or 306 are
acceptable. How many decisions on "less stringent" limitations are
still pending?
Describe the extent to which problems associated with intake
structures are being addressed, EPA's perception of this generic
problem, and the extent to which Section 316(b) studies are being
required and are providing beneficial data.
The extent to which responsibility for administration of the steam
electric program is divided between Washington and the EPA regional
offices. Also, the extent to which the states share responsibility for
administration and any special problems associated therewith.
Any programs aimed at utilizing for beneficial purposes the waste
heat dissipated to the air or to water bodies, or efforts that would
fundamentally improve the efficiency of power plants. If the future is
not just a straight line extension of the past, what is it?
These are offered as representative topics and not necessarily all
inclusive. It will undoubtedly be desirable to have other points
covered as well and it is left to your discretion to examine any issue
that you consider necessary to providing a comprehensive overview.
Your participation in the hearing, Mr. Administrator, is predicated
on the assumption that a decision will have been rendered in the
so-called Seabrook case before April 19. In the event that has not
happened, you may designate another EPA spokesman to appear in your
behalf. The Subcommittee does not wish to involve you in any forum that
could be considered as compromising the integrity of the agency's
appellate process.
It would be useful to the Subcommittee if you would have accompany
you Mr. Jeffrey G. Miller, Deputy Assistant Administrator for Water
Enforcement, and Mr. Eckardt C. Beck, Deputy Assistant Administrator for
Water Planning and Standards, as well as any other officials whom you
deem appropriate.
In addition, in other phases of the hearing we plan to call as
witnesses technical people from EPA field laboratories and
representatives of regional offices. You will be advised of the
specific individuals as soon as possible.
All details can be worked out with Charles Krouse (225-3274) and Jack
Schenendorf (225-5504), Subcommittee staffers who are handling the
hearing arrangements.
I look forward to seeing you on April 19.
With kindest regards, I am
Sincerely,
BO GINN,
Chairman, Subcommittee on Investigations and Review.
HRG COR OTH
770420 770308
ENVIRONMENTAL PROTECTION AGENCY
--
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT-1977 (THERMAL
POLLUTION AND OTHER WATER IMPACTS FROM STEAM ELECTRIC POWER GENERATION)
1977, SUMMARY OF 10 REGION RESPONSE TO PREHEARING QUESTIONS ASKED BY
SUBCOMMITTEE (PP 394 TO 404)
--
--
95-217
--
CW270088 CW270098
05785
(())
U.S. ENVIRONMENTAL PROTECTION AGENCY,
OFFICE OF ENFORCEMENT.
Washington, D.C., March 8, 1977.
MR. CHARLES A. KROUSE,
Professional Staff Member, Subcommittee on Investigations and Review,
Committee on Public Works and Transportation, U.S. House of
Representatives, Washington, D.C.
DEAR MR. KROUSE: In response to your inquiry of February 14, 1977,
we have surveyed our Regional Offices and have developed the data on a
Region-by-Region basis, as shown on the separate sheets enclosed. For
your convenience,(()) we have also prepared an EPA wide summary which
aggregates the data in the same order in which you posed the questions.
The Regional Offices are sending in the additional materials you
requested, such as copies of fact sheets, etc., and we will transmit
them to you on receipt.
Although your inquiry only dealt with data on the regulation of
thermal discharges, we should briefly mention our activities under
Section 316(b) determining Best Available Technology (BAT) for cooling
water intake structures. Over 300 studies were initially required to
determine BAT and approximately 90 have been completed. The majority of
those completed studies have concluded that the existing or presently
proposed intake structure reflects BAT. There are some notable
exceptions, however, some of which are mentioned in the footnotes of the
attached data (Northside and Brunswick in Region IV). Several Hudson
River plants in New York such as Indian Point, Roseton, and Bowline, are
also being examined at this time for both their thermal as well as
cooling water intake structure impact. The adjudicatory hearings have
not yet been held for the Hudson River cases. We will continue to
monitor these activities to provide necessary assistance as well as to
eliminate unnecessary delays.
Please let us know if we can be of any further assistance.
Sincerely yours,
STANLEY W. LEGRO,
Assistant Administrator for Enforcement.
Enclosures.
SUMMARY OF 10-REGION RESPONSE TO FEB. 14, 1977, INQUIRY BY MR.
KROUSE, PROFESSIONAL STAFF MEMBER, SUBCOMMITTEE ON INVESTIGATIONS AND
REVIEW OF THE HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION ON
REGULATION OF THERMAL DISCHARGES OF STEAM ELECTRIC POWER PLANTS -- MAR.
2, 1977 (EN-336)
(Data below are EPA-wide totals; see following pages for detail by
region)
...................................................... Answer
.. I. A. Number of NPDES permit applications filed .... 981
........ B. Number filed by plants exempt from BAT .... 790
........ C. Number of applications for 316(a) determinations
..... filed .... /1/ 208
.. ((/1/ In addition to effluent guidelines variant applications,
there have been 316(a) requests for determinations regarding
thermal water quality standards requirements and other State
thermal requirements.))
........ Operating plants .... (174)
........ Plants under construction/in planning .... (34)
........ D. Number of applications for 316(a) determinations having
..... reached the stage where studies, demonstrations, and
..... hearings, if required, have been completed (fact sheets being
..... sent by regions will be transmitted on receipt) .... 80
........ Operating plants .... (63)
........ Plants under construction/in planning .... (17)
........ E. Number of applications or 316(a) determinations which
..... have resulted in determination by RA or designee .... /2/
..... .... 56
.. ((/2/ The numbers in E.1 and E.2. total to 57 instead of to
56. There is "double counting" for one plant in region I in that
the determination involved both 316(a) and (b).))
........ 1. Number of applications denied for operating plants ....
..... (2)
........ Number of applications denied for plants under
..... construction/in planning .... (1)
........ Number of denials partly based on 316(b) grounds .... (1)
........ 2. Number of cases in which RA approved alternative
..... effluent limitations under 316(a) .... 53
........ Operating plants .... (41)
........ Plants under construction/in planning .... (12)
........ F. Number of Adjudicatory Hearings requested on decisions
..... listed in item E above .... 4
........ Operating plants .... (3)
........ Plants under construction/in planning (names provided in
..... detail sheets by region) .... (1)
........ 1. Number of these denied .... (0)
........ 2. Number of these granted .... (4)
........ 3. Number settled before adjudicatory hearing .... (0)
........ 4. Number of adjudicatory hearings which have taken place
..... .... 3
........ 5. Number of adjudicatory hearings pending .... 1
........ G. Number of initial decisions issued by RA after
..... adjudicatory hearings on 316(a) issues (copies to be
..... transmitted on receipt) .... 2
(())
...................................................... Answer
.. I. A. Number of NPDES permit applications filed -- Continued
........ H. Number of cases involving 316(a) or (b) issues which
..... have been appealed to the courts .... 0
.. II. See separate sheet attached.
.. III. Names of plants in which sec. 316(b) considerations have
been or are expected to be a major factor in making the sec. 316(a)
determination: Seabrook (region I); Crystal River Brunswick
(region IV).
.. IV. Number of adjudicatory hearings held to date in the steam
electric power industry .... /3/ 5
.. ((/3/ In addition to 316(a) hearings,hearings have also been
held on 316(b) matters and on the application of thermal water
quality standards.))
........ Number of cases in which ALJ wrote an opinion .... 0
........ Number of cases in which RA issued an initial decision
..... without a draft decision from ALJ .... 1
........ Number of cases in which RA issued an initial decision
..... within 20 d following certification of the record .... 0
........... REGION I
.. I. A. Number of NPDES permit applications filed .... /4/ 51
.. ((/4/ Does not include Connecticut and Vermont.))
........ B. Number of filed by plants exempt from BAT .... 42
........ C. Number of applications for 316(a) determinations filed.
..... .... 7
........ Operating plants .... (4)
........ Plants under construction/in planning .... (3)
........ D. Number of applications for 316(a) determinations having
..... reached the stage where studies, demonstrations, and
..... hearings, if required, have been completed (fact sheets being
..... sent by region will be transmitted on receipt .... 4
........ Operating plants .... (2)
........ Plants under construction/in planning .... (2)
........ E. Number of applications for 316(a) determinations which
..... have resulted in determination by RA or designee .... 3
........ 1. Number of applications denied for operating plants ....
..... (0)
........ Number of applications denied for plants under
..... construction/in planning .... (1)
........ Number of denials partly based on 316(b) grounds .... (1)
........ 2. Number of cases in which RA approved alternative
..... effluent limitations under 316(a) .... 2
........ Operating plants .... (1)
........ Plants under construction/in planning .... (1)
........ F. Number of adjudicatory hearings requested on decisions
..... listed in item E above .... /5/ 2
.. ((/5/ Seabrook and Pilgrim.))
........ Operating plants .... (1)
........ Plants under construction/in planning .... (1)
........ 1. Number of these denied .... (0)
........ 2. Number of these granted .... (2)
........ 3. Number of settled before adjudicatory hearing ....
........ 4. Number of adjudicatory hearings which have taken place
..... .... (1)
........ 5. Number of adjudicatory hearings pending .... (1)
........ G. Number of initial decisions issued by RA after
..... adjudicatory hearings on 316(a) issues (copies to be
..... transmitted on receipt) .... 1
........ H. Number of cases involving 316(a) or (b) issues which
..... have been appealed to the courts .... 0
.. II. See separate sheet attached (to 10-region summar only).
.. III. Names of plants in which sec. 316(b) considerations have
been or are expected to be a major factor in making the sec. 316(a)
determination: Seabrook.
.. IV. Number of adjudicatory hearings held to date in the steam
electric power industry .... 1
........ Number of cases in which ALJ wrote an opinion .... 0
........ Number of cases in which RA issued an Initial Decision
..... without a draft decision from ALJ .... /6/ 1
.. ((/6/ Seabrook.))
........ Number of cases in which RA issued an Initial Decision
..... within 20 d following certification of the record .... 0
(())
REGION 2
.. I. A. Number of NPDES permit applications filed .... 65
........ B. Number filed by plants exempt from BAT .... 46
........ C. Number of applications for 316(a) determinations filed
..... .... 47
........ Operating plants .... (41)
........ Plants under construction/in planning .... (6)
........ D. Number of applications for 316(a) determinations
..... having reached the stage where studies, demonstrations, and
..... hearings, if required, have been completed (fact sheets being
..... sent by region will be transmitted on receipt) .... /7/ 15
.. ((/7/ 15 completed demonstrations to date.))
........ Operating plants .... (12)
........ Plants under construction/in planning .... (3)
........ E. Number of applications for 316(a) determinations which
..... have resulted in determination by RA or designee .... 0
........ 1. Number of applications denied for operating plants
..... ....
........ Number of applications denied for plants under
..... construction/in planning ....
........ Number of denials partly based on 316(b) grounds ....
........ 2. Number of cases in which RA approved alternative
..... effluent limitations under 316(a) ....
........ Operating plants ....
........ Plants under construction/in planning ....
........ F. Number of adjudicatory hearings requested on decisions
..... listed in item E above ....
........ Operating plants ....
........ Plants under construction/in planning (Names provided; see
..... footnotes) ....
........ 1. Number of these denied ....
........ 2. Number of these granted ....
........ 3. Number settled before adjudicatory hearing ....
........ 4. Number of adjudicatory hearings which have taken place
..... ....
........ 5. Number of adjudicatory hearings pending ....
........ G. Number of Initial Decisions issued by RA after
..... adjudicatory hearings on 316(a) issues ....
........ H. Number of cases involving 316(a) or (b) issues which
..... have been appealed to the courts ....
.. II. See separate sheet attached (to 10-region summary only).
.. III. Names of plants in which sec. 316(b) considerations have
been or are expected to be a major factor in making the
sec. 316(a) determination: None.
.. IV. Number of adjudicatory hearings held to date in the steam
electric power industry .... 0
........ Number of cases in which ALJ wrote an opinion ....
........ Number of cases in which RA issued an Initial Decision
..... without a draft decision from ALJ ....
........ Number of cases in which RA issued an Initial Decision
..... within 20 d following certification of the record ....
REGION 3
.. I. A. Number of NPDES permit applications filed .... 83
........ B. Number of filed by plants exempt from BAT .... 67
........ C. Number of applications for 316(a) determinations filed
..... .... 13
........ Operating plants .... (13)
........ Plants under construction/in planning .... (0)
........ D. Number of applications for 316(a) determinations
..... having reached the stage where studies, demonstrations, and
..... hearings, if required, have been completed (fact sheets being
..... sent by region will be transmitted on receipt .... /8/ 6
.. ((/8/ Peachbottom (Phila. El. Co.); Williamsburg (Pa. El. Co.);
Cheswick (Duquesne); Phillip Sporn (Appal. Pr. Co.); Kammer (Ohio
Pr Co.); Newcastle (Pa. Pr. Co.).))
........ Operating plants .... (6)
........ Plants under construction/in planning .... (0)
(())
REGION 3 -- continued
.. I. A. Number of NPDES permit applications filed -- Continued
............................................................. Answer
........ E. Number of applications for 316(a) determinations which
..... have resulted in determination by RA or designee .... 0
........ 1. Number of applications denied for operating plants ....
........ Number of applications denied for plants under
..... construction/in planning ....
........ Number of denials partly based on 316(b) grounds ....
........ 2. Number of cases in which RA approved alternative
..... effluent limitations under 316(a) ....
........ Operating plants ....
........ Plants under construction/in planning ....
........ F. Number of adjudicatory hearings requested on decisions
..... listed in item E above ....
........ Operating plants ....
........ Plants under construction in planning (names provided; see
..... footnotes) ....
........ 1. Number of these denied ....
........ 2. Number of these granted ....
........ 3. Number of settled before adjudicatory hearing ....
........ 4. Number of adjudicatory hearings which have taken place
..... ....
........ 5. Number of adjudicatory hearings pending ....
........ G. Number of initial decisions issued by RA after
..... adjudicatory hearings on 316(a) issues (copies to be
..... transmitted on receipt) ....
........ H. Number of cases involving 316(a) or (b) issues which
..... have been appealed to the courts .... 0
.. II. See separate sheet attached (to 10-region summary only).
.. III. Names of plants in which sec. 316(b) considerations have
been or are expected to be a major factor in making the sec. 316(a)
determination: None.
.. IV. Number of adjudicatory hearings held to date in the steam
electric power industry .... /9/ 2
.. ((/9/ Calvert Cliffs (Balto G&E); Potomac River Station
.. (PEPCO).))
........ Number of cases in which ALJ wrote an opinion .... 0
........ Number of cases in which RA issued an initial decision
..... without a draft decision from ALJ ....
........ Number of cases in which RA issued an initial decision
..... within 20 days following certification of the record ....
REGION 4
.. I. A. Number of NPDES permit applications filed .... 161
........ B. Number filed by plants exempt from BAT .... 100
........ C. Number of applications for 316(a) determinations filed
..... .... 36
........ Operating plants .... (32)
........ Plants under construction/in planning .... (4)
........ D. Number of applications for 316(a) determinations having
..... reached the stage where studies, demonstrations, and
..... hearings, if required, have been completed (fact sheets being
..... sent by Region will be transmitted on receipt) .... 12
........ Operating plants .... (10)
........ Plants under construction/in planning .... (2)
........ E. Number of applications for 316(a) determinations which
..... have resulted in determination by RA or designee .... /10/
..... /11/
.. ((/10/ Colbert/Widows Creek/Johnsonville/Kingston (TVA); Gorgas
(Ala. Pr. Co.); Cutler/St. Lucie (FP&L);Northside/ Jacksonville
El. Authority); Brunswick (Carol. Pr. & L); Marshall/Riverbend
(Duke Pr. Co.); Summer (S.C. El. & Gas).))
.. ((/11/ No denials of 216(a) applications have occurred.
However, Northside (an operating plant) was required
to relocate its discharge and minimally modify its intake.
Adjudicatory Hearing on 316(b)issues has been completed for
Brunswick (an operating plant) and RA's Determination should be
forthcoming in near future.))
........ 1. Number of applications denied for operating plants ....
..... (0)
........ Number of applications denied for plants under
..... construction/in planning .... (0)
........ Number of denials partly based on 316(b) grounds .... (0)
........ 2. Number of cases in which RA approved alternative
..... effluent limitations under 316(a) .... /11/ 12
.. ((/11/ No denials of 216(a) applications have occurred.
However, Northside (an operating plant) was required
to relocate its discharge and minimally modify its intake.
Adjudicatory Hearing on 316(b)issues has been completed for
Brunswick (an operating plant) and RA's Determination should be
forthcoming in near future.))
........ Operating plants .... (10)
........ Plants under construction/in planning .... (2)
(())
REGION 4 -- continued
...................................................... Answer
.. I. A. Number of NPDES permit applications filed -- Continued
........ F. Number of adjudicatory hearings requested on decisions
..... listed in item E above .... /12/ 0
.. ((/12/ However, 13 adjudicatory hearing requests were made for
initial 316(a) decision (permit requirement for 316(a) study) and
one (1) specifically for 316(b). Of the 13, only 2 have not been
settled before an adjudicatory hearing; one of these is under
negotiation to conduct a 316(a) demonstration, the other is
proceeding toward an adjudicatory hearing on 316 (a) and (b)
issues.))
........ Operating plants .... /12/ 0
.. ((/12/ However, 13 adjudicatory hearing requests were made for
initial 316(a) decision (permit requirement for 316(a) study) and
one (1) specifically for 316(b). Of the 13, only 2 have not been
settled before an adjudicatory hearing; one of these is under
negotiation to conduct a 316(a) demonstration, the other is
proceeding toward an adjudicatory hearing on 316 (a) and (b)
issues.))
........ Plants under construction/in planning (names provided; see
..... footnotes) .... 0
........ 1. Number of these denied .... /12/
.. ((/12/ However, 13 adjudicatory hearing requests were made for
initial 316(a) decision (permit requirement for 316(a) study) and
one (1) specifically for 316(b). Of the 13, only 2 have not been
settled before an adjudicatory hearing; one of these is under
negotiation to conduct a 316(a) demonstration, the other is
proceeding toward an adjudicatory hearing on 316 (a) and (b)
issues.))
........ 2. Number of these granted .... /12/
.. ((/12/ However, 13 adjudicatory hearing requests were made for
initial 316(a) decision (permit requirement for 316(a) study) and
one (1) specifically for 316(b). Of the 13, only 2 have not been
settled before an adjudicatory hearing; one of these is under
negotiation to conduct a 316(a) demonstration, the other is
proceeding toward an adjudicatory hearing on 316 (a) and (b)
issues.))
........ 3. Number settled before adjudicatory hearing .... /12/
.. ((/12/ However, 13 adjudicatory hearing requests were made for
initial 316(a) decision (permit requirement for 316(a) study) and
one (1) specifically for 316(b). Of the 13, only 2 have not been
settled before an adjudicatory hearing; one of these is under
negotiation to conduct a 316(a) demonstration, the other is
proceeding toward an adjudicatory hearing on 316 (a) and (b)
issues.))
........ 4. Number of adjudicatory hearings which have taken place
..... .... /12/
.. ((/12/ However, 13 adjudicatory hearing requests were made for
initial 316(a) decision (permit requirement for 316(a) study) and
one (1) specifically for 316(b). Of the 13, only 2 have not been
settled before an adjudicatory hearing; one of these is under
negotiation to conduct a 316(a) demonstration, the other is
proceeding toward an adjudicatory hearing on 316 (a) and (b)
issues.))
........ 5. Number of adjudicatory hearings pending .... /12/
.. ((/12/ However, 13 adjudicatory hearing requests were made for
initial 316(a) decision (permit requirement for 316(a) study) and
one (1) specifically for 316(b). Of the 13, only 2 have not been
settled before an adjudicatory hearing; one of these is under
negotiation to conduct a 316(a) demonstration, the other is
proceeding toward an adjudicatory hearing on 316 (a) and (b)
issues.))
........ G. Number of initial decisions issued by RA after
..... Adjudicatory hearings on 316(a) issues (copies to be
..... transmitted on receipt) .... 0
........ H. Number of cases involving 316 (a) or (b) issues which
..... have been appealed to the courts .... 0
.. II. See separate sheet attached (to 10-region summary only).
.. III. Names of plants in which sec. 316(b) considerations have
been or are expected to be a major factor in making the sec. 316(a)
determination: Crystal River, Brunswick.
.. IV. Number of adjudicatory hearings held to date in the steam
electric power industry .... 1
........ Number of cases in which ALJ wrote an opinion .... 0
........ Number of cases in which RA issued an initial decision
..... without a draft decision from ALJ .... 0
........ Number of cases in which RA issued an initial decision
..... within 20 d following certification of the record .... 0
REGION 5
.. I. A. Number of NPDES permit applications filed .... 220
........ B. Number filed by plants exempt from BAT .... 210
........ C. Number of applications for 316(a) determinations filed
..... .... 75
........ Operating plants .... (67)
........ Plants under construction/in planning .... (8)
........ D. Number of applications for 316(a) determinations having
..... reached the stage where studies, demonstrations, and
..... hearings, if required, have been completed (fact sheets being
..... sent by region will be transmitted on receipt) ..... 28
........ Operating plants .... (26)
........ Plants under construction/in planning .... (2)
........ E. Number of applications for 316(a) determinations which
..... have resulted in determination by RA or designee .... /13/
..... 30
.. ((/13/ Clinten (Nuclear-in construction. Ill. Pr. Co.);
Petersburg/Stout/Perry K (Indianapolis P & L); Tanner Creek/Twin
Branch (Ind.-Mich. El.); Clifty Creek (Ind.-Ky. El. Co.);
Gallagher/Edwardsport/Noblesville/Cayuga/Wabash River (Pub Sve
of Ind,); Kincaid/Zion/Waukegan (Commonwealth Edison); Joppa
(El. En. Coop of Ill.); Culley (So. Ind. Gas & El.); Warwick
(So. Ind.-Alcoa); Petersburg (Hoosier Energy); Miami Fort/Beckjord
(Cincy G&E); Kyger Creek (Ohio Valley El.); Oak Creek/
Parkside (Wis. El.); Kewanee (Wis. Pub. Svc.); Alma Unit 6 (iii
construct-Dairland Pr. Coop); Riverside/A. S. King
(No. St. Pr. Co.).))
........ 1. Number of applications denied for operating plants ....
..... (2)
........ Number of applications denied for plants under
..... construction/in planning .... (0)
........ Number of denials partly based on 316(b) grounds .... (0)
........ 2. Number of cases in which RA approved alternative
..... effluent limitations under 316(a) .... (28)
........ Operating plants .... (26)
........ Plants under construction/in planning .... (2)
(())
........... REGION 5 - continued
...................................................... Answer
.. I. A. Number of NPDES permit applications filed -- Continued
........ F. Number of adjudicatory hearings requested on decisions
..... listed in item E above .... 2
........ Operating plants .... (2)
........ Plants under construction in planning (names provided; see
..... footnotes) .... (0)
........ 1. Number of these denied .... (0)
........ 2. Number of these granted .... (2)
........ 3. Number settled before adjudicatory hearing .... (0)
........ 4. Number of adjudicatory hearings which have taken place
..... .... /14/ 1
.. ((/14/ One Hearing involving 2 plants (Wabash)/Cayuga).))
........ 5. Number of adjudicatory hearings pending .... 0
........ G. Number of initial decisions issued by RA after
..... adjudicatory hearings on 316(a) issues (copies to be
..... transmitted on receipt) .... 0
........ H. Number of cases involving 316 (a) or (b) issues which
..... have been appealed to the courts .... 0
.. II. See separate sheet attached (to 10-region summary only).
.. III. Names of plants in which 316(b) considerations have been or
are expected to be a major factor in making the sec. 316(a)
determination: None.
.. IV. Number of adjudicatory hearings held to date in the steam
electric power industry .... /14/ 1
.. ((/14/ One Hearing involving 2 plants (Wabash)/Cayuga).))
........ Number of cases in which ALJ wrote an opinion .... 0
........ Number of cases in which RA issued an initial decision
..... without a draft decision from ALJ .... 0
........ Number of cases in which RA issued an initial decision
..... within 20 days following certification of the record .... 0
REGION 6
.. I. A. Number of NPDES Permit Applications filed .... 155
........ B. Nnmber filed by plants exempt from BAT .... 148
........ C. Number of applications for 316(a) determinations filed
..... .... 7
........ Operating plants .... 7
........ Plants under construction/in planning .... (2)
........ D. Number of applications for 316(a) determinations having
..... reached the stage where studies, demonstrations, and
..... hearings, if required, have been completed (fact sheets being
..... sent by region will be transmitted on receipt) .... 0
........ Operating plants .... 0
........ Plants under construction/in planning .... 0
........ E. Number of applications for 316(a) determinations which
..... have resulted in determination by RA or designee .... 0
........ 1. Number of applications denied for operating plants ....
........ Number of applications denied for plants under
..... construction/in planning ....
........ Number of denials partly based on 316(b) grounds ....
........ 2. Number of cases in which RA approved alternative
..... effluent limitations under 316(a) .... 0
........ Operating plants ....
........ Plants under construction/in planning ....
........ F. Number of adjudicatory hearings requested on decisions
..... listed in item E above .... 0
........ Operating plants ....
........ Plants under construction/in planning (names provided; see
..... footnotes) ....
........ 1. Number of these denied ....
........ 2. Number of these granted ....
........ 3. Number of settled before adjudicatory hearing ....
........ 4. Number of adjudicatory hearings which have taken place
..... ....
........ 5. Number of adjudicatory hearings pending ....
........ G. Number of initial decisions issued by RA after
..... adjudicatory hearings on 316(a) issues (copies to be
..... transmitted on receipt) ....
........ H. Number of cases involving 316(a) or (b) issues which
..... have been appealed to the courts .... 0
(())
........... REGION 6 - continued
...................................................... Answer
.. II. See separate sheet attached (to 10-region summary only).
.. III. Names of plants in which sec. 316(b) considerations have
been or are expected to be a major factor in making the sec. 316(a)
determination: none.
.. IV. Number of adjudicatory hearings held to date in the steam
electric power industry .... 0
........ Number of cases in which ALJ wrote an opinion ....
........ Number of cases in which RA issued an initial decision
..... without a draft decision from ALJ ....
........ Number of cases in which RA issued an initial decision
..... within 20d following certification of the record ....
REGION 7
.. I. A. Number of NPDES permit applications filed .... 123
........ B. Number filed by plants exempt from BAT .... 110
........ C. Number of applications for 316(a) determinations filed
..... .... /15/ 13
.. ((/15/ 29 filed; 16 not needed.))
........ Operating plants .... (4)
........ Plants under construction/in planning .... (9)
........ D. Number of applications for 316(a) determinations having
..... reached the stage where studies, demonstrations, and
..... hearings, if required, have been completed (fact sheets being
..... sent by region will be transmitted on receipt) .... /16/ 12
.. ((/16/ Fact sheets attached ))
........ Operating plants .... (4)
........ Plants under construction/in planning .... (8)
........ E. Number of applications for 316(a) determinations which
..... have resulted in determination by RA or designee .... /17/
..... 10
.. ((/17/ Determinations made by EPA RA=3; by NPDES State
director=7.))
........ 1. Number of applications denied for operating plants ....
..... 0
........ Number of applications denied for plants under
..... construction/in planning .... 0
........ Number of denials partly based on 316(b) grounds .... 0
........ 2. Number of cases in which RA approved alternative
..... effluent limitations under 316(a) .... /17/ 10
.. ((/17/ Determinations made by EPA RA=3; by NPDES State
director=7.))
........ Operating plants .... /18/ (3)
.. ((/18/ By EPA RA=1 (operating) and 2 (construction/planning); By
State=2 (operating) and 5 (construction) planning.))
........ Plants under construction in planning .... /18/ (7)
.. ((/18/ By EPA RA=1 (operating) and 2 (construction/planning); By
State=2 (operating) and 5 (construction) planning.))
........ F. Number of adjudicatory hearings requested on decisions
..... listed in item E above .... 0
........ Operating plants ....
........ Plants under construction/in planning (names provided; see
..... footnotes) ....
........ 1. Number of these denied .... 0
........ 2. Number of these granted .... 0
........ 3. Number settled before adjudicatory hearing .... 0
........ 4, Number of adjudicatory hearings which have taken place.
..... .... 0
........ 5. Number of adjudicatory hearings pending .... 0
........ G. Number of initial decisions issued by RA after
..... adjudicatory hearings on 316(a) issues (copies to be
..... transmitted on receipt) .... 0
........ H. Number of cases involving 316(a) or (b) issues which
..... have been appealed to the courts .... 0
.. II. See separate sheet attached (to 10-region summary only).
.. III. Names of plants in which sec. 316(b) considerations have
been or are expected to be a major factor in making the sec, 316(a)
determination: none.
.. IV. Number of adjudicatory hearings held to date in the steam
electric power industry .... 0
........ Number of cases in which ALJ wrote an opinion ....
........ Number of cases in which RA issued an initial decision
..... without a draft decision from ALJ ....
........ Number of cases in which RA issued an initial decision
..... within 20d following certification of the record ....
(())
........... REGION 8
...................................................... Answer
.. I. A. Number of NPDES permit applications filed .... 46
........ B. Number filed by plants exempt from BAT .... 1
........ C. Number of applications for 316(a) determinations filed
..... .... 3
........ Operating plants .... (3)
........ Plants under construction/in planning .... (0)
........ D. Number of applications for 316(a) determinations having
..... reached the stage where studies, demonstrations, and
..... hearings, if required, have been completed (fact sheets being
..... sent by region will be transmitted on receipt .... /19/ 2
.. ((/19/ No hearings to date.))
........ Operating plants .... (2)
........ Plants under construction/in planning .... (0)
........ E. Number of applications for 316(a) determinations which
..... have resulted in determination by RA or designee .... 0
........ 1. Number of applications denied for operating plants ....
........ Number of applications denied for plants under
..... construction/in planning ....
........ Number of denials partly based on 316(b) grounds ....
........ 2. Number of cases in which RA approved alternative
..... effluent limitations under 316(a) ....
........ Operating plants ....
........ Plants under construction/in planning ....
........ F. Number of adjudicatory hearings requested on decisions
..... listed in item E above .... 0
........ Operating plants ....
........ Plants under construction/in planning (names provided; see
..... footnotes) ....
........ 1. Number of these denied ....
........ 2. Number of these granted ....
........ 3. Number settled before adjudicatory hearing ....
........ 4. Number of adjudicatory hearings which have taken place
..... .... 0
........ 5. Number of adjudicatory hearings pending .... 0
........ G. Number of initial decisions issued by RA after
..... adjudicatory hearings on 316(a) issues (copies to be
..... transmitted on receipt) .... 0
........ H. Number of cases involving 316(a) or (b) issues which
..... have been appealed to the courts .... 0
.. II. See separate sheet attached (to 10-region summary only.
.. III. Names of plants in which sec. 316(b) considerations have
been or are expected to be a major factor in making the sec. 316(a)
determination: None.
.. IV. Number of adjudicatory hearings held to date in the steam
electric power industry .... 0
........ Number of cases in which ALJ wrote an opinion ....
........ Number of cases in which RA issued an initial decision
..... without a draft decision from ALJ ....
........ Number of cases in which RA issued an initial decision
..... within 20 days following certification of the record ....
REGION 9
.. I. A. Number of NPDES permit applications filed .... 48
........ B. Number of filed by plants exempt from BAT .... 44
........ C. Number of applications for 316(a) determinations filed
..... .... 4
........ Operating plants .... (2)
........ Plants under construction/in planning .... (2)
........ D. Number of applications for 316(a) determinations having
..... reached the stage where studies, demonstrations, and
..... hearings, if required, have been completed (fact sheets being
..... sent by Region will be transmitted on receipt) .... 1
........ Operating plants .... (1)
........ Plants under construction/in planning .... (0)
(())
........... REGION 9 -- continued
...................................................... Answer
.. I. A. Number of NPDES permit applications filed -- Continued
........ E. Number of applications for 316(a) determinations which
..... have resulted in determination by RA or designee .... /20/ 1
.. ((/20/ State action (California) involving Ormond Beach.
(So. Cal. Edison).))
........ 1. Number of applications denied for operating plants ....
........ Number of applications denied for plants under
..... construction/in planning ....
........ Number of denials partly based on 316(b) grounds ....
........ 2. Number of cases in which RA approved alternative
..... effluent limitations under 316(a) .... /20/ 1
.. ((/20/ State action (California) involving Ormond Beach.
(So. Cal. Edison).))
........ Operating plants .... /20/ (1)
.. ((/20/ State action (California) involving Ormond Beach.
(So. Cal. Edison).))
........ Plants under construction/in planning .... (0)
........ F. Number of adjudicatory hearings requested on decisions
..... listed in item E above .... 0
........ Operating plants ....
........ Plants under construction/in planning (names provided; see
..... footnotes) ....
........ 1. Number of these denied ....
........ 2. Number of these granted ....
........ 3. Number of settled before adjudicatory hearing ....
........ 4. Number of adjudicatory hearings which have taken place
..... ....
........ 5. Number of adjudicatory hearings pending ....
........ G. Number of initial decisions issued by RA after
..... adjudicatory hearings on 316(a) issues (copies to be
..... transmitted on receipt) ....
........ H. Number of cases involving 316(a) or (b) issues which
..... have been appealed to the courts .... 0
.. II. See separate sheet attached (to 10-region summary only.)
.. III. Names of plants in which sec. 316(b) considerations have
been or are expected to be a major factor in making the sec. 316(a)
determination: None.
.. IV. Number of adjudicatory hearings held to date in the steam
electric power industry .... 0
........ Number of cases in which ALJ wrote an opinion ....
........ Number of cases in which RA issued an initial decision
..... without a draft decision from ALJ ....
........ Number of cases in which RA issued an initial decision
..... within 20 d following certification of the record ....
REGION 10
.. I. A. Number of NPDES permit applications filed .... 29
........ B. Number filed by plants exempt from BAT .... 22
........ C. Number of applications for 316(a) determinations filed
..... .... 3
........ Operating plants .... (3)
........ Plants under construction/in planning .... (0)
........ D. Number of applications for 316(a) determinations having
..... reached the stage where studies, demonstrations, and
..... hearings, if required, have been completed (fact sheets being
..... sent by Region will be transmitted on receipt) .... 0
........ Operating plants ....
........ Plants under construction/in planning ....
........ E. Number of applications for 316(a) determinations which
..... have resulted in determination by RA or designee .... 0
........ 1. Number of applications denied for operating plants ....
........ Number of applications denied for plants under
..... construction/in planning ....
........ Number of denials partly based on 316(b) grounds ....
........ 2. Number of cases in which RA approved alternative
..... effluent limitations under 316(a) ....
........ Operating plants ....
........ Plants under construction/in planning ....
(())
........... REGION 10 -- continued
.. I. A. Number. of NPDES permit applications filed -- Continued
........ F. Number of adjudicatory hearings requested on decisions
..... listed in item E above ....
........ Operating plants ....
........ Plants under construction/in planning (names provided; see
..... footnotes) ....
........ 1. Number of these denied ....
........ 2. Number of these granted .....
........ 3. Number settled before adjudicatory hearing ....
........ 4. Number of adjudicatory hearings which have taken place
..... ....
........ 5. Number of adjudicatory hearings pending ....
........ G. Number of initial decisions issued by RA after
..... adjudicatory hearings on 316(a) issues (copies to be
..... transmitted on receipt) ....
........ H. Number of cases involving 316(a) or (b) issues which
..... have been appealed to the courts .... 0
.. II. See separate sheet attached (to 10-region summary only).
.. III. Names of plants in which sec. 316(b) considerations have
been or are expected to be a major factor in making the sec. 316(a)
determination: None.
.. IV. Number of adjudicatory hearings held to date in the steam
electric power industry .... 0
........ Number of cases in which ALJ wrote an opinion ....
........ Number of cases in which RA issued an initial decision
..... without a draft decision from ALJ ....
........ Number of cases in which RA issued an initial decision
..... within 20 days following certification of the record ....
U.S. ENVIRONMENTAL PROTECTION AGENCY,
OFFICE OF ENFORCEMENT AND GENERAL COUNSEL.
Washington, D.C., February 14, 1975.
To: Acting Assistant Administrator for Enforcement (EG-329).
From: Associate General Counsel, Water (EG-331).
Subject: Section 316(b), FWPCA.
You have asked whether the Agency has authority, under section 316(b)
of the FWPCA, to require installation of closed cycle cooling systems at
powerplants which would not be required to install such systems under
sections 301, 306 or 316(a).
Section 316(b) provides that "any standard established pursuant to
section 301 or section 306 ... 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 Agency cannot directly specify that any particular mode of
cooling be adopted under section 316(b) anymore than it could under
other sections of the Act which regulate discharges. However, the
Agency is vested with authority to regulate the "capacity" of cooling
water intake structures. Restrictions on intake capacity, required in
order to minimize environmental harm associated with withdrawal of large
volumes of water, could render a once-through cooling system infeasible.
Hence, a consequence of the Agency's action under section 316(b) could,
in certain instances, be utilization of recirculating evaporative
cooling systems. This is, however, not essentially different from the
result of Agency restrictions on the volume of pollutant discharge under
sections 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
limitations imposed on the discharge of specific pollutants.
In my view section 316(b) represents an independent mandate to the
Agency. It is not dependent upon or overridden by determinations made
under sections 301, 306 and 316(a). Thus, if limitations on intake
structure capacity represent the best available technology for
minimizing adverse environmental effects they may be imposed, in a
proper case, despite the fact that recirculating cooling systems would
not be required to insure that discharges of cooling water met
applicable thermal standards.
RAY McDEVITT.
HRG OTH