BEFORE THE CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD
Central Coast Region
June 9, 2003
COMMENTS OF THE SAN LUIS OBISPO MOTHERS FOR PEACE, CALIFORNIA EARTH CORPS, AND ENVIRONMENTAL CENTER OF SAN LUIS OBISPO REGARDING CONSENT JUDGMENT
IN THE CASES INVOLVING ALLEGED VIOLATIONS OF NPDES PERMIT NO. CA0003751
By PACIFIC GAS AND ELECTRIC COMPANY At DIABLO CANYON NUCLEAR POWER PLANT SAN LUIS OBISPO COUNTY
The environmental findings in this case have already been well documented:
- Thermal discharges from Diablo Canyon Nuclear Power Plant (DCNPP) are causing significant and consistent biological degradation of the intertidal and shallow subtidal marine species, resources and habitat in Diablo Cove, and to a lesser extent in Field’s Cove. This degradation is causing major reductions in important species and large declines in fish populations. (February 4, 2000 Regional Board Staff Report)
- Entrainment of larvae lost for offshore species is relatively small, however the amount of larvae lost for near-shore species is relatively high (1% - 32% of larvae depending on species). (July 13, 2000 Regional Board Staff Report)
- A low number of fish are impinged on the screens in front of the intake structure, and this was found to be an insignificant environmental impact. (July 13, 2000 Regional Board Staff Report)
It has already been established that the degradation to the marine environment is greater than anticipated when the NPDES was originally issued. DCNPP is therefore in violation of its permit. The issue now, then, is what to do about the negative environmental findings. The Regional Water Quality Control Board (RWQCB) appears satisfied to exchange a narrow piece of property and a small sum of money for all past and future damages, and its Staff presents a convoluted rational for allowing PG&E to continue degrading the ocean waters forevermore. It finds no “available” solutions, plant modifications, or alternatives to minimize thermal or entrainment impacts other than the proposed Consent Judgment. (April 29, 2003 Fact Sheet for Regular Meeting of July 10, 2003)
The Consent Judgment supposedly preserves “forever” specified land which is meant to protect marine resources through watershed and habitat protection. San Luis Obispo Mothers For Peace, California Earth Corps, and Environmental Center of San Luis Obispo (SLOMFP et al) are opposed to the Consent Judgment for the following reasons:
- Section 10 of the Consent Judgment (Termination of Consent Judgment) allows Pacific Gas and Electric Company (PG&E) to rescind the entire Consent Judgment - including the Conservation Easement - at its discretion if new environmental requirements should be placed on the company at any time in the future. So, what is the point? This is clearly not an agreement that guarantees preservation of this land “in perpetuity” as it claims, and on this basis alone must be denied. This discretionary escape clause must be removed and replaced with an irrevocable deed restriction that runs with the land with private rights of action restricting the land use to structure free recreational open space, and placed into Public Trust under jurisdiction of the California State Lands Commission.
- The Consent Judgment “will resolve issues regarding entrainment/impingement and the thermal discharge…over its operating life…” (RWQCB Staff Report for March 21, 2003 meeting, prepared on February 25, 2003, Item No.11, pg. 4) It must be noted that it is possible that DCNPP will remain in operation for an additional 50 years (see Exhibit 1) - 50 years of environmental degradation that will most assuredly worsen with time. SLOMFP et al find it inappropriate for the RWQCB to accept a settlement that would excuse future negative environmental impacts. This is especially disturbing in light of the Termination clause noted above in the event that a future RWQCB should attempt to enforce compliance with the effluent limitations. A current settlement must only allow mitigation for past impacts on the marine environment - certainly not for future transgressions! Additionally, the Environmental Protection Agency is currently appraising certain plankton exclusion screens which, if proven out, would become Best Available Technology to avoid entrainment and its impacts altogether and hence appropriate for an Order to Retrofit from this Board. You must take no action which will preclude a future Board from taking lawful action to enforce the Clean Water Act.
- The current proposed settlement does not include a plan to address the ongoing violations to the NPDES permit. There is no commitment or requirement for DCNPP to comply with regulations. One must assume, then, that the Consent Judgment will literally “resolve all issues regarding entrainment/impingement and the thermal discharge …over the operating life” of the plant. The Consent Judgment thus fails to protect the marine species and communities. It allows for the continued degradation of the coastal waters. It violates the RWQCB’s responsibility to remedy the situation. It fails to hold PG&E accountable for its promise to the State of California to provide “mitigation for losses incurred” through “modifying plant operation or design...” (1966)
- The proposed Consent Judgment reduces onsite monitoring at the DCNPP and instead has PG&E participate in a regional Central Coast Ambient Monitoring Program. (RWQCB Waste Discharge Requirements Order No. RB3-2003-0009 NPDES, April 29, 2003, pg. 13) Given the history of the plant’s violations of its NPDES permit, however, environmental monitoring should be increased or at least maintained at current levels to ensure compliance with permit requirements. Independent monitoring rather than self-monitoring should also be required. The agreement as it stands, however, forgives “all issues regarding entrainment/impingement and the thermal discharge… over its operating life…” and hence makes monitoring for compliance with its NPDES permit moot. The proposal to reduce onsite monitoring reinforces the notion that the RWQCB has abandoned its responsibility to protect the marine environment.
- Under the terms of the Consent Judgment, PG&E is to pay $200,000 to fund the easement stewardship costs, $4.05 million for projects that will improve habitat and water quality, $350,000 for abalone restoration, and $150,000 annually for the Central Coast Ambient Monitoring Program. (RWQCB Waste Discharge Requirements Order No. RB3-2003-0009 NPDES, April 29, 2003, pg. 13) SLOMFP et al, however, oppose in principle the assumption that the provision of money is sufficient to offset damage to marine resources. SLOMFP et al would hope to see an appropriate plan for remediation of the problem. The preservation of land and the payment of money does not adequately address the adverse impacts on the marine environment from plant operations. SLOMFP et al are seeking a settlement that first restores the damaged resources and then protects it.
- The Federal Endangered Species Act has identified four threatened or endangered species that live in the Diablo Canyon area: California southern sea otter, green sea turtle, California brown pelican, and the peregrin falcon. (RWQCB Waste Discharge Requirements Order No. RB3-2003-0009 NPDES, April 29, 2003, pg. 15) According to a March 22, 2003 NRC Notification Report (Exhibit 2), a baby sea otter was trapped at the Auxiliary Salt water pump inlet between the bar racks and screens. SLOMFP et al are concerned that DCNPP has not been designed to adequately protect endangered species.
- PG&E is currently in bankruptcy and, additionally, hopes to transfer ownership of the nuclear power plant and easement land to a new company (Diablo Canyon LLC), and responsibility for operation of the plant to another new company (Generating Company). In its February 3, 2003 RWQCB Staff Report it stated that the settlement was “delayed through 2001 and 2002 due to PG&E’s bankruptcy proceedings.” (pg. 2) Since PG&E remains in bankruptcy, SLOMFP et al want to know what has changed to suddenly effectuate settlement? SLOMFP et al posed this question in its March 7, 2003 Comments, but it was not addressed in the RWQCB Response: “Staff cannot answer questions related to PG&E’s bankruptcy proceedings.” It did, however, respond to the question of transfer of ownership: “There is a provision in the Consent Judgment that requires PG&E’s successors in interest to comply with the Consent Judgment.” (Supplemental Report for Regular Meeting of March 21, 2003, pg. 4) SLOMFP et al remain skeptical, however, reminding the Staff that there exists a Termination clause. SLOMFP et al reiterate their earlier request to reject the proposed Consent Judgment with a company that is in bankruptcy and whose ownership is in flux, absent a clause and provision for the conditions to run with the land and the plant, regardless of owner or land transfer.
- The question of “Best Available Technology” is admittedly intricate. The RWCQB Staff utilized a “wholly disproportionate cost test” to compare “the cost of technology alternatives to the benefit to be gained by implementing alternatives” and concluded that the costs of technologies would be “wholly disproportionate to the benefits to be gained.” It also admitted that “the estimated value of reduced entrainment… is subject to qualitative evaluation and there are uncertainties involved in the methodology.” An example of the degree of uncertainty that exists is found in PG&E’s ASA 2003 report: “ASA 2003 estimated the Net Present Value of expected benefits to the target species from implementing closed cycle cooling at DCPP would range from $11,045 to $1,334,030.” Additionally, the Regional Board’s independent scientist, Dr. Raimondi, states that “the larval losses could be valued in the ten million dollar range, depending on the assumptions made. Stratus Consulting Inc. also reviewed the ASA 2003 report and found that “the Habitat Recovery Cost… method could also be used to estimate the entrainment value losses, which would result in a much higher valuation for the losses.” (RWQCB Waste Discharge Requirements Order No. RB3-2003-0009 NPDES, April 29, 2003, Attachment 4, pgs. 16,17) SLOMFP et al understandably question the methodology utilized by the RWQCB Staff to make the subsequent summary that the costs of technology alternatives would be “wholly disproportionate to the benefits to be gained.” Furthermore, the Clean Water Act does not provide for financial considerations; it requires that the Best Available Technology be used to protect the resources of the coastal waters.
- In May 2000 during evidentiary hearings, Michael Thomas and Drs. Foster and Schiel accused PG&E of withholding infrared images that showed the actual distribution patterns of the thermal plume and impact zones. PG&E was also accused of withholding historical photographs that showed major deterioration of Diablo Cove. Additionally, PG&E had collected temperature monitoring data during 1997-1998 from the area north of Diablo Cove but did not submit this data until May 1, 2000. (Rebuttal Testimony in support of Cease and Desist Order No. 00-032, Michael Thomas, Project Manager, RWQCB, Central Coast Region, May 5, 2000, pg. 6) When PG&E withheld data in the entrainment and impingement study, it was fined $14.4 million (1997). SLOMFP et al requested a similar settlement for this very serious charge in its March 7, 2003 Comments. RWCCB Staff responded that it would be addressed in the Staff Report to the Regional Board for the July 10, 2003 Board meeting. SLOMFP et al have been unable to locate that response and are still seeking a penalty.
As an aside, SLOMFP et al find it discouraging to find the adoption of the Consent Judgment by the RWQCB already written and published before the hearing has taken place. “49. After considering all the evidence, legal arguments, and public comment presented according to the hearing notice, documents in the administrative record and applicable laws and regulations, the Board adopts this Order.” (RWQCB Waste Discharge Requirements Order No. RB3-2003-0009 NPDES, April 29, 2003, pg. 16) It does little to foster trust in the openness and sincerity of the RWQCB.
In conclusion, SLOMFP et al would hope that a single State or Federal Agency would look at the bigger picture - the entire operation of DCNPP and the legacy it leaves of pollution and destruction of natural resources. SLOMFP et al would like to see the costs of production, storage, contamination, and disposal of the high level radioactive waste added into the “wholly disproportionate cost test” to compare “the cost of technology alternatives to the benefit to be gained by implementing alternatives.” If one agency was to look closely at the costs to the environment compared to the benefit of electricity produced, SLOMFP et al are certain that it would find DCNPP too costly to continue operation.
SLOMFP et al urge the RWQCB to deny the Consent Judgment in its entirety and reinstate its Cease and Desist Order - holding PG&E accountable to its NPDES permit limitations.
Rochelle Becker and Jill ZamEk
San Luis Obispo Mothers for Peace
1123 Flora Road
Arroyo Grande, CA 93420
June 9, 2003
CERTIFICATE OF SERVICE
I CERTIFY THAT ON June 9, 2003, copies of Comments of the San Luis Obispo Mothers for Peace, California Earth Corps, and Environmental Center of San Luis Obispo Regarding Consent Judgment in the Cases Involving Alleged Violations of NPDES Permit No. CA0003751 were served on the following by electronic mail.
Regional Water Quality Control Board
Central Coast Region
895 Aerovista Place, Suite 101
|Pamela Marshall Heatherington
Environmental Center of San Luis Obispo
1204 Nipomo Street
San Luis Obispo, CA 9301
Pacific Gas and Electric Company
77 Beale Street (B30a)
San Francisco, CA 94105
California Earth Corps
4927 Minturn Avenue
Lakewood, CA 90712
Santa Lucia Chapter of the Sierra Club
2650 Maple Avenue
Morro Bay, CA 93442