More than 30 years ago, ASLF began as an organization tirelessly pursuing citizen enforcement of the Clean Water Act (CWA) throughout the United States. Hundreds of cases have since been fought by ASLF, including ASLF vs. New York State Gas & Electric and ASLF vs. The Puerto Rico Electric and Power Authority, both directly related to recent changes in Section 316 of the CWA implemented by the U.S. Environmental Protection Agency. Section 316 includes regulations to prevent harmful chemical and thermal pollution from entering all ‘navigable waters,’ often introduced by ‘cooling waters’ used by factories and power plants.
“Thousands of industrial facilities use large volumes of cooling water from lakes, rivers, estuaries or oceans to cool their plants. Cooling water intake structures cause adverse environmental impact by pulling large numbers of fish and shellfish or their eggs into a power plant’s or factory’s cooling system. There, the organisms may be killed or injured by heat, physical stress, or by chemicals used to clean the cooling system. Larger organisms may be killed or injured when they are trapped against screens at the front of an intake structure.”(United States Environmental Protection Agency, 2014)
The U.S. Government uses the term “navigable waters” to define the water bodies in which it has jurisdiction:
“The term “navigable waters” of the United States means “navigable waters” as defined in section 502(7) of the FWPCA, and includes: (1) all navigable waters of the United States, as defined in judicial decisions prior to the passage of the 1972 Amendments of the Federal Water Pollution Control Act, (FWPCA) (Pub. L. 92-500) also known as the Clean Water Act (CWA), and tributaries of such waters as; (2) interstate waters; (3) intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposes; and (4) intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce.”(United States Enviornmental Protection Agency, 2014)
ASLF’s involvement with Section 316 of the CWA began with a lawsuit against the New York State Gas & Electric (NYSG&E) company for thermal discharges into the Susquehanna River in the mid 1980’s. Eventually, an agreeable settlement was reached by ASLF and NYSG&E to meet CWA requirements and minimize further damage to the Susquehanna River and its ecological systems.
Approximately five years later, ASLF launched an effort to protect three bays in Puerto Rico (Jobos Bay National Estuarine Research Reserve, Guayanilla Bay, and San Juan Bay) after a review of Discharge Monitoring Reports indicated serious and ongoing violations by Puerto Rico Electric and Power Authority (PREPA) at four of its power generating plants. On April 29, 1991, ASLF put PREPA on Notice of Intent to Sue, citing violations of wastewater permit limitations under the federal CWA for a wide variety of pollutants including arsenic, cadmium, lead, zinc, silver, oil, grease and excessive temperature. ASLF’s Notice prompted dialogue with PREPA to address the environmental degradation of these tropical bays, and included discussion of a potential settlement designed to mitigate environmental damage. Project proposals considered for funding by PREPA included the acquisition of delicate bay shore areas for management by local environmental organizations, an island wide energy conservation and education program, pollution prevention projects, and research on endangered species.
After months of negotiation leading into 1993, an agreement was finally reached between ASLF, PREPA and the Federal Department of Justice. The terms of the settlement included $425,000 given by PREPA to the Fundacion Puertorriquena de Conservacion (Conservation Foundation of Puerto Rico) to oversee the acquisition of sensitive watershed lands, and to fund scientific studies of the three bays impacted by PREPA discharges. Geared toward protecting valuable resources and restoring productivity, these studies were devised to augment existing studies conducted by the Puerto Rico Department of Natural Resources, the U.S. Fish and Wildlife Service, the Environmental Protection Agency, and the National Oceanic and Atmospheric Administration. Research funds were also distributed to the Water Environment Federation Research Foundation with the hope of improving the energy efficiency of waste water treatment facilities in Puerto Rico.
By 1995, The San Juan Bay Estuary Program (SJBEP), created with federal government funding under The National Estuary Program of the CWA, and ASLF were working closely to maximize the impact of available funds. The location of San Juan Bay in the midst of a heavily populated and industrialized urban core triggered concerns of bioconcentration of toxic substances discharged in the Bay into the flesh of fish, making the fish unsafe for human consumption. After approval of ASLF as a part of the PREPA consent decree, a preliminary study was conducted by ASLF and Servicios Cientifícos y Técnicos to gather data and conduct fish tissue sampling. Five species of fish and one species of crab feeding in the San Juan Bay Estuary System were studied, selected on the basis of their popularity for human consumption and due to their potential for bioaccumulation of contaminants, broad geographical distribution, and reliable taxonomic identification. Tissue samples were taken and analyzed for the presence of various target chemical analytes, including 19 aromatic hydrocarbons, 22 organochlorine pesticides and polychlorinated biphenyls (PCBs), and 11 inorganic elements.
The study was completed in 1997, and a draft presented for comments and review to the San Juan Bay Estuary Program’s Scientific and Technical Committee and U.S. EPA. Detailed results of the study were also made available to the public after these bodies had completed their review processes. While levels of several target analytes exceeded EPA recommendations, the study did not call for the institution of any fishing advisories or suggest any immediate health risks from the consumption of fish in the estuary system. However, the authors did note the level of contaminants exceeding EPA recommendations signified a need for a follow-up study to better determine what risks to the general population may exist.
Funding remained after the fish tissue sampling study, and in 1996, ASLF launched three additional projects created in accordance with the PREPA settlement – two in Jobos Bay, and one in San Juan Bay. In Jobos Bay, a Habitat Assessment was carried out by Dr. Jorge Garcia of Marine Consulting and an Underground Water Assessment was conducted by the U.S. Geological Survey with modeling done by Myrna Hall. In San Juan Bay, a geographic information systems project to assist with computer mapping of data collected in the bay was carried out under the auspices of the San Juan Bay Estuary Program and the U.S. Army Corps of Engineers.
In 2007, PREPA committed to invest $10 million by 2008 to maintain compliance with the CWA. Following ASLF’s settlement, projects have included improvements to the used water treatment plants, the construction of oil separators, rain water retention ponds, liquid waste slime pools, thermometers to measure temperature of cooling water as it is discharged from condensators, and flow measurers screen wash system modifications.
It has now been more than 40 years since the CWA became law in 1972. Many regulations of the CWA were scheduled to be phased in, and have been amended or repealed since its creation due to scientific advancement and political will. The EPA’s recent press release marks another era in the enforcement of Section 316:
“The regulations apply to facilities that use cooling water intake structures to withdraw water from waters of the U.S. and have or require an NPDES permit. Applicability for a specific facility depends on the industrial sector and the facility size. Many industrial sectors are affected; the sectors with the largest number of regulated facilities are:
- Electric generating plants
- Pulp and paper mills
- Chemical manufacturing plants
- Iron and steel manufacturing
- Petroleum refineries
- Food processing
- Aluminum manufacturing.
For precise definitions of coverage, see the regulations at 40 CFR 125.81, 125.91 and 125.131.
Final Rule for Existing Electric Generating Plants and Factories – 2014
This rule covers roughly 1,065 existing facilities that are designed to withdraw at least 2 million gallons per day of cooling water. EPA estimates that 521 of these facilities are factories, and the other 544 are power plants.
- The facilities are required to choose one of seven options to reduce fish impingement.
- Facilities that withdraw at least 125 million gallons per day must conduct studies to help their permitting authority determine whether and what site-specific controls, if any, would be required to reduce entrainment of aquatic organisms.
- New units added to an existing facility are required to reduce both impingement and entrainment that achieves one of two alternatives under national entrainment standards.
- EPA has concluded Endangered Species Act consultation with the Fish and Wildlife Service and the National Marine Fisheries Service.
Laws in the United States are continuously under scrutiny, and the CWA is no exception. Riverkeeper is currently threating to sue the E.P.A. to issue stricter standards for industrial cooling and impose further changes to the CWA. More information on this current CWA challenge can be found at: http://thehill.com/policy/energy-environment/206628-green-groups-likely-to-sue-epa-on-water-intake-rule. Additional information about the CWA can also be found at: http://www2.epa.gov/laws-regulations/summary-clean-water-act.