News Archive 2003

State is sued over river fish studies
By Dan Shapley
Poughkeepsie Journal
October 30, 2003

NEWBURGH -- Dynegy and Entergy have sued the Department of Environmental Conservation over studies of fish killed at their Hudson River power plants, according to attorneys for two environmental groups who saw the lawsuits Wednesday.

Dynegy owns the Danskammer and Roseton plants in Newburgh, and Entergy owns the Indian Point plant in Buchanan. Spokesmen confirmed that lawsuits had been filed, but characterized them differently.

The suits are the latest chapter in a tumultuous, three-decade push by environmentalists to change the way power plants use river water to cool condensers. Fish eggs and larvae are sucked into plants with the water, and studies suggest they are killed by the millions or billions each year.

This year, the DEC was ordered by state Supreme Court to draft new permits for water withdrawals at Danskammer and Indian Point.

Entergy's suit alleges the DEC's final environmental impact study of fish killed at Roseton, Indian Point and Mirant's Bowline plant in West Haverstraw -- a decade in the making -- was flawed, said David Gordon and Warren Reiss, attorneys for Garrison-based Riverkeeper and Poughkeepsie-based Scenic Hudson, respectively.

Entergy spokesman James Steets said Entergy disputes the DEC's findings but the lawsuit simply seeks to resolve a technicality.

''We haven't challenged it. We want the right to challenge it. We may find when we receive the permit that we would want to. We were just afraid we would lose that on a technicality,'' Steets said.

The companies -- and before them the utilities -- that have owned the plants completed the draft studies in 1999. They dispute the DEC's subsequent interpretation that the number of fish killed is significant.

Dynegy's suit argues the results of that study should not be applied to its Danskammer plant because it wasn't one of the three plants studied, Gordon and Reiss said.

Asked about the suit, Dynegy spokesman David Byford read this statement:

''There is a question as to the scope of the analysis performed by the DEC. Our filing of this suit will determine which forum the issue of the proper scope of the analysis will be decided in, either in court or in the ongoing administrative DEC process.''

The DEC does not comment on pending lawsuits, but spokesman Matt Burns read this statement:
''The department will continue to work to ensure that all draft permits issued for energy generating facilities along the river require the best technology available and the river's unique aquatic resources are protected.''

Environmentalists had sued the DEC to kickstart the repermitting process. The groups argue the Clean Water Act requires plants to use the ''best technology available'' to limit environmental destruction, and that the DEC had failed to enforce that provision.

Danskammer is the first plant for which the DEC has issued a draft permit. The DEC must issue a draft permit for Indian Point by Nov. 14.

Judge hearing issues

The existence of the suits was revealed Wednesday during hearings at Newburgh town hall before a DEC administrative law judge.

At that hearing, Dynegy, the DEC, Riverkeeper and Scenic Hudson presented issues related to the DEC's draft permit for Danskammer. The judge is charged with deciding which issues should get a broader airing and who has the right to argue.

Environmentalists argued Wednesday costly cooling towers are the best technology available, and could be installed at Danskammer. The DEC's draft permit for Danskammer stopped short of ordering cooling towers because of space concerns at its Town of Newburgh site.

Marty Daley, a Dynegy official who attended the hearing, characterized it as collaborative and productive.

Wednesday's arguments could be moot, at least in the short term, if either suit is successful.
''It's sad that 25 years later, we're still having to litigate in multiple forums over these issues,'' Reiss said. ''It's unfortunate that the regulatory system has failed to address this last large insult to the Hudson River's ecosystem.''

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