Voices of the Wetlands petition to the Superior Court of California asking the Regional Water Quality Control District be required to study the alternative technologies for the Duke power plant at Moss Landing
Deborah A. Sivas (Calif. Bar No. 135446)
Michael R. Lozeau (Calif. Bar No. 142893)

EARTHJUSTICE LEGAL DEFENSE FUND

Owen House - 553 Salvatierra Walk
Stanford, California 94305-8620

Telephone: (650) 723-0325
Facsimile: (650) 725-8509

Attorneys for Petitioner

SUPERIOR COURT FOR THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF MONTEREY

VOICES OF THE WETLANDS, Petitioner,

v. CALIFORNIA STATE WATER RESOURCES CONTROL BOARD; and CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD ñ CENTRAL COAST REGION,

Respondents.

_________________________________________
DUKE ENERGY MOSS LANDING, LLC; and
DUKE ENERGY NORTH AMERICA,

Real Parties-in-Interest.

PETITION FOR WRIT OF MANDATE BASED ON THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. ß 1251, et seq. and Cal. Civ. Pro. Code ß 1094.5)

Petitioner Voices of the Wetlands petitions this Court for a writ of mandate pursuant to California Code of Civil Procedure ("CCP") section 1094.5 directing Respondents California State Water Resources Control Board ("State Board") and Regional Water Quality Control Board, Central Coast Region ('Regional Board') to set aside and vacate Regional Board Waste Discharge Requirements Order No. 00-041, which illegally authorized Duke Energy Moss Landing, LLC/Duke Energy North America ('Duke Energy') to withdraw up to 1.224 billion gallons of water per day from Moss Landing Harbor for use as cooling water flow in the Moss Landing Power Plant ('MLPP') without requiring that the plantís cooling water intake structures ('CWIS') reflect the best technology available ('BTA') for minimizing adverse environmental impacts, as mandated by section 316(b) of the Federal Water Pollution Control Act, 33 U.S.C. ß 1326(b) (hereinafter 'Section 316(b)'). This petition also asks the Court to vacate State Board Order WQ No. 01-10, which upheld Regional Board Order No. 00-041. Petitioners allege:

INTRODUCTION

1. This action challenges Respondents failure to comply with the Federal Water Pollution Control Act (the "Clean Water Act" or "CWA"), 33 U.S.C. ß 1251 et seq., by issuing a National Pollutant Discharge Elimination System ("NPDES") permit to Duke Energy for the MLPP that does not reflect or require use of the best cooling water intake structures technology available to minimize adverse environmental impacts on Elkhorn Slough, Moss Landing Harbor, and the Monterey Bay National Marine Sanctuary.

2. Duke Energy's predecessor-in-interest, Pacific Gas & Electric, constructed Units 1 through 5 of the MLPP in 1950 and operated these units until 1995, when they were retired. These units were designed to use a once-through cooling water system technology.

3. In 1968, Pacific Gas & Electric installed additional Units 6 and 7 at the MLPP. These units were also designed to utilize a once-through cooling water system technology. After Units 1 through 5 were taken out of operation, Units 6 and 7 continued to operate pursuant to NPDES Permit No. CA0006254, which was reissued by the Regional Board on February 10, 1995 pursuant to Waste Discharge Requirements Order No. 95-22.

4. Duke Energy proposes to expand the existing MLPP by adding two new 530- megawatt ('MW') natural gas-fired, combined-cycle generating units to the facility (new Units 1 and 2) and by upgrading existing Units 6 and 7. As a result of this proposed expansion, power generating capacity at the MLPP will increase from its current 1,500 MWs to approximately 2,590 MWs. Despite the fact that proposed new Units 1 and 2 will be newly constructed, Duke Energy intends to use essentially the same once-through cooling water technology utilized for units at the facility that are now over one half a century old.

5. On October 27, 2000, pursuant to Order No. 00-041, the Regional Board again reissued NPDES Permit No. CA0006254 to Duke Energy, this time authorizing the intake, use and subsequent discharge of as much as 1.224 billion gallons of marine cooling water for the once-through cooling system at the expanded MLPP. As the lead state agency for approval of the MLPP expansion, the California Energy Commission (ìEnergy Commissionî) prepared and certified an environmental impacts analysis for the project which found that the entrainment of large numbers of biological organisms in the intake water of the proposed new cooling system constitutes a significant adverse impact to Elkhorn Slough and Moss Landing Harbor.

6. Notwithstanding this finding, Regional Board Order No. 00-041 determined that BTA for the cooling water system at the expanded MLPP is the once-through cooling technology presently used at the facility and that the cost of alternative cooling system technologies is ìwholly disproportionateî to the environmental benefits they would achieve.

7. Petitioners timely appealed Regional Board Order No. 00-041 to the State Board.

8. On June 21, 2001, the State Board issued Order No. WQ 01-10, which (1) found that most of petitionersí contentions were ìnon-substantialî and, therefore, declined to consider these contentions, and (2) amended the permit to ensure compliance with the governing Thermal Plan. Thus, State Board Order No. WQ 01-10 denied Petitionerís appeal of the Regional Boardís failure to require BTA for the cooling water intake structures at the MLPP.

9. By issuing these orders, Respondents committed a prejudicial abuse of discretion in that: (1) the NPDES Permit fails to reflect or require implementation of BTA for the cooling water system at the expanded MLPP for minimizing acknowledged adverse environmental impacts, in direct violation of 33 U.S.C. ß 1326(b); (2) the Regional Board failed to consider, analyze or make any specific findings as to the feasibility of BTA cooling system alternatives such as closed-cycle wet recirculation and air cooling technologies, despite the fact that other power plant facilities have used, or have proposed to use, such technologies; (3) the Regional Boardís general finding that ìthe costs of alternatives to minimize entrainment impacts are wholly disproportionate to the environmental benefitsî is unlawful under the express language of CWA Section 316(b) and, additionally, is not supported by any analysis or evidence in the record; and (4) there is no evidence in the record to support the Regional Boardís findings that the Environmental Enhancement Program proposed in Order No. 00-041 constitutes BTA for the MLPP expansion or that such program will, in fact, offset the significant adverse environmental impacts of the proposed MLPP expansion on the Elkhorn Slough ecosystem. Accordingly, Regional Board Order No. 00-041 and State Board Order No. WQ 01-10 must be vacated.

JURISDICTION AND VENUE

10. This court has jurisdiction pursuant to CCP ß 1094.5 and California Water Code ß 13330. Venue is proper in this court pursuant to CCP ß 393.

11. This petition is timely filed within 30 days of service of State Board Order WQ 01-10, in accordance with California Water Code ß 13330.

PARTIES

12. Petitioner Voices of the Wetlands is a nonprofit association of individuals who are concerned about and dedicated to the conservation of Elkhorn Slough in Monterey County, California. Voices of the Wetlands exists to promote stewardship and enjoyment of Elkhorn Slough for local residents and visitors. Petitionerís members actively participate in Elkhorn Slough through activities such as birdwatching, kayaking, nature study, guided tours and volunteerism dedicated to stewardship and education. The entrainment of marine species in the cooling water intake at the MLPP will adversely impact the Elkhorn Slough ecosystem and impair each of these uses. Thus, the interests of Voices of the Wetlands and its members have been, are being, and unless the relief requested herein is granted, will continue to be adversely affected and injured by Respondentsí failure to comply with CWA in reissuing NPDES Permit No. CA0006254 for the MLPP.

13. Respondent State Water Resources Control Board is the entity authorized by California Water Code ß 13320 and Chapter 5.5 to oversee Californiaís implementation of the NPDES permitting program, including review of permits issued by the Regional Water Quality Control Boards. On June 6, 2001, Respondent State Board held a workshop to review Regional Board Order No. 00-041. On June 21, 2001, the State Board issued a final decision denying Petitionersí administrative appeal as to the issues raised in this Petition. See WQ Order No. WQ 01-10. The State Boardís order was served by U.S. Mail on Petitioner on June 28, 2001.

14. Respondent Regional Water Quality Control Board, Central Coast Region, is the entity authorized pursuant to California Water Code ß 13263 and Chapter 5.5 to issue NPDES permits for discharges of pollutants into, among other places, Elkhorn Slough, Moss Landing Harbor, and Monterey Bay, subject to review by the State Board. Pursuant to Order 00-041, Respondent Regional Board reissued the NPDES Permit (No. CA0006254) that is at issue in this case.

15. Petitioner is informed and believes, and on that basis alleges, that real party-in- interest Duke Energy Moss Landing, LLC, and/or Duke Energy North America (ìDuke Energyî) is the owner and operator of the Moss Landing Power Plant and the recipient of NPDES Permit No. CA0006254. Thus, Duke Energy has an interest in the outcome of Petitionerís proceeding to set aside Regional Board Order No. 00-041 and State Board Order No. WQ 01-10.

BACKGROUND ALLEGATIONS

Elkhorn Slough

16. Located adjacent to the Monterey Bay National Marine Sanctuary along the Central California coastline, Elkhorn Slough is considered a ìbiological gemî of global significance, in part because it is one of the few relatively large coastal wetlands remaining in California. The Slough supports one of Californiaís most threatened ecosystems, the coastal estuary.

17. The State of California has designated Elkhorn Slough as an ecological preserve, and the National Oceanic and Atmospheric Administration has included its tidal waters as part of the Monterey Bay National Marine Sanctuary.

18. Elkhorn Slough is the only National Estuarine Research Reserve in California north of San Diego and is an important area for scientific research. Researchers and students from the Moss Landing Marine Laboratories, the University of California Santa Cruz, Stanford University, California State University Monterey Bay and other institutions have conducted studies on biology, ecology, geology, hydrology, restoration and landscape changes in and around the Slough.

19. Elkhorn Sloughís watershed encompasses 43,000 acres. According to the environmental review documents prepared for the MLPP expansion project, the ìwettedî area of the Slough covers approximately 3,000 acres of marshes and mudflats, which is only 10 percent of the wetlands that existed there in the 1880ís.

20. Elkhorn Slough is a biologically rich wetland system that provides habitat for hundreds of resident and migratory bird species. The American Bird Conservancy has designated the Slough a ìGlobally Important Bird Areaî because it harbors significant breeding and wintering populations of the Western snowy plover (listed as ìthreatenedî under the federal Endangered Species Act, 16 U.S.C. ß 1531 et seq. (ìESAî)), as well as a host of other migrant and wintering shorebirds, including brown pelicans (listed as ìendangeredî under the ESA) . The U.S. Fish and Wildlife Service has designated Elkhorn Slough as ìcritical habitatî for the Western snowy plover pursuant to the ESA.

21. Over 400 species of invertebrates (including the commercially important Dungeness Crab), 97 species of fish (including the Tidewater Goby, listed as ìendangeredî under the ESA), and 260 species of birds have been identified in Elkhorn Slough. A great diversity of rare plants and animals are found in the Slough, which also serves as an important nursery and source of nutrients for Monterey Bay.

22. Several marine mammals inhabit Elkhorn Slough, including harbor seals, sea lions, and southern sea otters (listed as ìthreatenedî under the ESA). Since partial mothballing of the Moss Landing plant in 1995, the sloughís sea otter population has increased at six times the statewide rate.

Impacts of the Proposed MLPP Expansion Project

23. The Energy Commission served as the lead state agency for the proposed MLPP expansion for purposes of compliance with the California Environmental Quality Act, California Public Resources Code ß 21000 et seq. The Regional Board was responsible for issuing the NPDES permit and Waste Discharge Requirements for the expansion in compliance with the CWA and applicable state law.

24. In order to assess the biological impacts of the proposed expansion on Elkhorn Slough and the surrounding environment, the Energy Commission and the Regional Board convened a technical working group (ìTWGî) consisting of Energy Commission and Regional Board staff specialists and their consultants, one representative each from the California Coastal Commission (ìCoastal Commissionî) and the California Department of Fish and Game (ìCDFGî), and a number of Duke Energy employees and consultants. The results of the TWGís evaluation were provided to the Energy Commission and the Regional Board for their respective consideration and were utilized in the final decision documents of those agencies.

25. On June 8, 2000, the Energy Commission issued a Final Staff Assessment (Part 3) (ìFSAî) which evaluated the proposed projectís impacts on biological resources and on soil and water resources. This evaluation was based, at least in part, on input from the TWG. In the FSA, Energy Commission staff concluded that the expanded MLPP would ìsuck through its cooling water intake systemî up to 28 percent of the water in Elkhorn Slough and adjacent Moss Landing Harbor on a daily, annual and life-of-the-facility basis and that entrainment in the cooling water system ìwill carry essentially all pelagic organisms in the volume of water entrained through the plant to their death.î Staff also concluded that impingement and thermal discharge impacts from the cooling water system ìwill contribute to overall ecosystem lossesî and that ì[i]mpacts associated with thermal discharge, impingement and entrainment losses of marine and estuarine species due to the once-through cooling water system are considered to be significant.î

26. The FSA determined that the proposed new MLPP units will result in the loss of an average of 13 percent of the fish larvae in Moss Landing Harbor and Elkhorn Slough and that other pelagic eggs and larvae, such as crabs and clams, will also be killed. The document further determined that when all units at the MLPP are operating, ìthe percentage loss would be several times greater.î The FSA then concluded that: ìThese pelagic organisms are important living material that provide food (primary productivity) for many creatures in the harbor and slough ecosystems. The loss of this amount of productivity is significant. The Elkhorn Slough covers 4000 acres of wetted surface, and the loss of 13 percent of the fish larvae will require replacement of wetland in order to replace the lost productivity of the harbor and Elkhorn Slough ecosystem. In this case 13 percent of the 4000 acres of wetted surface equals 520 acres of needed wetland acres restored.

27. The FSA also stated that: ìDetermining reasonable and satisfactory mitigation amounts and costs for restoring wetlands acres and other Elkhorn slough enhancements is difficult, since there are a wide range of costs associated with these types of activities (see Table 5). Additionally, BTA alternatives will be considered, and balanced with environmental benefits and costsî (emphasis added). Table 5 of the FSA documented ìwetlands restoration costs,î excluding ìendowment costs,î for several other restoration projects in the region as ranging from $60,000 per acre to $260,000 per acre.

28. Finally, the FSA included Table 7, which ìlists other BTA options that would significantly reduce biological resources losses due to impingement, entrainment, and thermal discharge.î Table 7 indicates that four near shore power plants located in or around the San Francisco Bay area have proposed use of closed-cycle wet recirculation cooling systems and that three other proposed plants in California have proposed use of dry cooling technology.

29. Less than two weeks after issuance of the FSA, on June 19, 2000, Energy Commission staff issued an Errata for the Biological Resources section of the FSA (hereinafter ìErrataî). The Errata inexplicably but significantly altered key portions of the discussion of biological resources contained in the prior (June 8, 2000) FSA. For example, all of the information related to BTA alternatives, costs and proposed future evaluation, as described in paragraphs 27 and 28 above, was eliminated without explanation. Additionally, the total number of wetted acres reported for Elkhorn Slough was reduced from 4,000 to 3,000 (and therefore, the minimum number of necessary ìwetlands replacementî acreage was reduced from 520 to 390 acres), again without explanation, and all cost information related to other wetlands restoration projects in California was deleted from the Errata. Nevertheless, the Errata confirmed the fundamental conclusion of Energy Commission staff and the TWG that entrainment impacts of the MLPP expansion would be ìsignificant.

30. On August 29, 2000, the Energy Commission published its environmental analysis of the proposed MLPP expansion as part of the Presiding Memberís Proposed Decision (ìPMPDî). Based on old Pacific Gas & Electric studies and limited new surveys, the PMPD memorialized the Energy Commissionís conclusion that ìloss due to entrainment would be significantî and that ì[s]ince the majority of marine life was identified as coming from the Elkhorn Slough system, Staff and the TWG concluded that the entrainment impacts of the Project would be to the slough.î

31. However, rather than consider BTA alternatives to address these significant impacts, the PMPD instead concluded that the direct, indirect and cumulative biological impacts caused by entrainment could be mitigated through the monetary payment by Duke Energy of $7 million to the Elkhorn Slough Foundation for the acquisition, restoration and enhancement of wetland habitat within the Elkhorn Slough watershed. The mitigation fund amount was derived by multiplying the average percentage loss in biological productivity calculated by the TWG (13 percent) by the number of wetted acres identified in the Errata (3,000 acres) and then multiplying the resulting acreage (390 acres) by approximately $17,950 per acre. The PMPD based the $17,950 per acre wetlands restoration cost on the ìrealisticî estimates of the TWG, but it does not provide any analysis of how this estimate was derived or why it deviates by an order of magnitude from the costs of other actual wetlands recovery projects in the area, as previously documented in the FSA.

32. Additionally, the PMPD does not contain any analysis of whether and how the $7 million mitigation payment will actually offset the expected biological entrainment impacts from the expanded MLPP. For instance, there is no discussion of whether additional land is available for purchase as wetlands and at what price, nor is there any analysis of how much wetlands restoration and enhancement efforts may cost in this particular instance or of the feasibility of successfully creating new wetlands habitat or enhancing the productivity of existing habitat sufficient to offset the projectís impacts (e.g., there is no evaluation of the cost or success of other, similar projects along the California coastline or elsewhere). The failure to provide any actual analysis of how the proposed mitigation money will successfully offset project impacts is confirmed by the PMPD itself, which states that: ìThe resulting figure of 390 acres (13% x 3000 acres) was never intended to represent the number of acres to be replaced since no wetlands had been removed by the Project. Rather, the figure represents a way to measure the amount of wetland productivity, which must be replaced. 390 acres is merely the numerical value of the intermediate step in the protocol used to translate estimated entrainment impacts into a dollar value for the mitigation packageî (emphasis added).

The Statutory Requirements of CWA Section 316(b)

34. The Clean Water Act provides for the restoration and maintenance of "the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. ß 1251(a). The primary mechanism for accomplishing this goal is through issuance of NPDES permits. Discharges of a pollutant, including thermal discharges, by any person are unlawful unless such discharges are in compliance with the requirements of a NPDES permit. 33 U.S.C. ß 1311(a).

35. The CWA provides for the delegation of NPDES permitting authority from the U.S. Environmental Protection Agency (ìEPAî) to the states. States with delegated CWA authority become responsible for issuing NPDES permits to dischargers, subject to the CWA permitting requirements, and must ensure compliance with federal standards. 33 U.S.C. ß 1342(b). California has been delegated authority by EPA to implement the Clean Water Act. See Cal. Water Code Chap. 5.5. Despite that delegation, NPDES permits must abide by minimum procedural and substantive requirements established by the CWA and federal regulations, including the requirements of Section 316(b) of the statute.

36. The CWA prohibits issuance of a permit that does not provide for compliance with the statute or regulations promulgated thereunder. 40 C.F.R. ß 122.4(a). See also 33 U.S.C. ß 1342(b); Cal. Water Code ß 13377.

37. Section 316(b) of the CWA provides that any point source subject to the requirements of 33 U.S.C. ß 1311 and 1316 (requiring EPA to establish effluent limitations and performance standards, respectively) must require that ìthe location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impacts.î 33 U.S.C. ß 1326(b). Therefore, the withdrawal of water for use in a cooling water system and subsequent discharge into a water of the United States is unlawful unless the CWIS for the facility reflects BTA for minimizing adverse environmental impacts. Id. As EPA has recognized, the statutory language of Section 316(b) does not allow for consideration of the cost of ensuring BTA for cooling water systems. See 65 Fed. Reg. 49060, 49065 (Aug. 10, 2000).

38. Current EPA guidance for implementing Section 316(b) of the CWA provides for a case-by-case analysis in determining whether a proposed CWIS satisfies BTA. See Draft Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment: Section 316(b) P.L. 92_500 (U.S. EPA, 1977) (hereinafter ìDraft Guidanceî); 65 Fed. Reg. at 49065. According to EPA, adverse environmental impacts necessitating the application of BTA occur whenever the CWIS will result in the detrimental or nontrivial entrainment or impingement of biological organisms. See 65 Fed. Reg. at 49,074; 38 Fed. Reg. 34,410 (Dec. 13, 1973).

39. EPAís proposed regulations for implementing Section 316(b) provide that intake structures should be located to avoid "important spawning areas, juvenile rearing areas, fish migration paths, [and] shellfish beds." For example, EPA concludes that a CWIS should not be placed in estuarine habitats because these areas are enormously productive biologically. 65 Fed. Reg. at 49,084.

40. One important and proven way to minimize adverse environmental impacts from cooling water systems is through the employment of closed-cycle wet recirculation or dry cooling systems instead of the older, once-through cooling water systems that were in use through much of the last century. These alternatives significantly reduce or virtually eliminate cooling water intake and output and thereby also significantly reduce entrainment, impingement and thermal discharge impacts. As EPA has recognized, many new facilities constructed since the 1970's have employed closed-cycle recirculation technology, and all presently proposed large new power plants that would be subject to the proposed Section 316(b) regulations intend to use such technology. 65 Fed. Reg. at 49,072.

41. In its proposed Section 316(b) regulations, EPA is considering the imposition of a zero-intake or nearly-zero-intake flow restriction as reflecting BTA for CWIS capacity (i.e., volume) where water is withdrawn from estuaries. If adopted, this standard would effectively require the use of dry cooling tower technology, a closed-cycle wet recirculation system or some hybrid combination of these technologies for estuary environments. See 65 Fed. Reg. at 49,080, 49,087. This proposed BTA would dramatically reduce impacts from older, once-through cooling technology on estuary ecosystems and their wildlife. The proposed regulations do not consider once-through cooling technology as BTA for estuary environments.

42. In the proposed Section 316(b) regulations, EPA has properly interpreted the CWA to require the implementation of direct control technologies (location, design, construction and capacity requirements) to minimize adverse environmental impacts before consideration of any additional restoration measures that may be necessary to offset any unavoidable adverse impacts remaining after implementation of such direct control technologies. See 65 Fed. Reg. at 49,090. In other words, EPAís existing guidance and proposed rules do not allow for the use of restoration offsets in lieu of, or as a substitute for, the application of BTA capacity (flow and volume) restrictions such as closed-cycle wet recirculation or dry cooling technology.

43. Section 316(b) does not allow the for consideration of costs or economic factors in determining BTA. Accordingly, any determination that a CWIS alternative for minimizing adverse environmental impacts need not be installed if its costs are ìwholly disproportionateî to its environmental benefits is unlawful.

44. Even assuming that economic factors are allowed to be taken into consideration in determining BTA, the standard previously utilized and articulated by EPA requires an evaluation of the marginal rate increase to ratepayers from implementation of BTA. Alternatively, EPA has proposed three other possible tests for determining when the costs of a BTA alternative are ìwholly disproportionateî to its benefit. These tests include: (1) comparison of annualized compliance costs with revenues generated by the facility; (2) evaluation of compliance costs as a percentage of capital costs for construction of the facility; and (3) comparison of compliance costs with the present discounted value of future cash flows at the facility. 65 Fed. Reg. 49,095.

The Regional Board Process

45. As part of the CWA permitting process for the MLPP expansion, on April 28, 2000, Duke Energy submitted to the Regional Board a document entitled ìMoss Landing Power Plant Modernization Project 316(b) Resource Assessmentî (hereinafter ìSection 316(b) Assessmentî) which determined, consistent with other environmental analyses for the expansion project, that the proposed once-through cooling water system will have significant entrainment impacts on Elkhorn Slough.

46. Among other things, the Section 316(b) Assessment purported to ìevaluateî alternative intake technologies for the MLPP. After acknowledging that a closed-cycle recirculation system would reduce entrainment impacts by 95.2 percent and that dry cooling technology would effectively reduce entrainment impacts by 100 percent, the Section 316(b) Assessment contains a very brief, four-page narrative discussion of why both technologies were rejected by Duke Energy. This discussion is premised on unsupported, self-serving and unverified conclusory statements regarding total costs of BTA alternatives, potential saltwater ìblowdownî concerns, and potential visual and noise impacts. The discussion of alternatives does not contain any actual economic analysis whatsoever; in particular, it does not contain an analysis of marginal rate increases to ratepayers from BTA, a comparison of annualized compliance costs against annual facility revenue, an evaluation of compliance costs as a percentage of construction costs, or a comparison of compliance costs against present discounted cash flows from the facility. In fact, the document provides no information about customer rates or the size of the customer rate base, nor does it provide any financial data regarding anticipated plant revenues or cash flows. Similarly, the document does not contain any evaluation of or substantiation for its conclusory statements regarding potential aesthetic and ìair pollutionî impacts.

47. At a June 20, 2000 evidentiary hearing before the Energy Commission, interested parties raised concerns about the absence of any serious consideration or analysis of BTA alternatives such as closed-cycle wet recirculation and dry cooling. These concerns were never addressed by the Energy Commission or the Regional Board.

48. At a subsequent July 17, 2000 meeting before the Energy Commission, interested parties again raised concerns about the absence of any serious analysis of BTA alternatives capable of avoiding or minimizing adverse environmental impacts. These concerns were never addressed by the Energy Commission or the Regional Board.

49. During a September 15, 2000 regular meeting of the Regional Board, TWG member and CDFG representative Deborah Johnston requested that the Board undertake evaluation of cooling system alternatives and other interested members of the public echoed these suggestions. The Board voted to continue the matter in order for staff to address continuing questions regarding alternatives and mitigation of impacts. Despite this continuance, Regional Board staff did not subsequently address Ms. Johnstonís concerns or provide an analysis to support a finding that the proposed mitigation package would offset the projectís adverse environmental impacts.

50. During a September 21, 2000 hearing before the Energy Commission, several commenters again raised concerns about the absence of a BTA analysis for the cooling water system. These concerns were never addressed by the Energy Commission or the Regional Board.

51. During the October 27, 2000 regular meeting of the Regional Board, interested parties again raised concerns about the failure of the Board to adequately consider BTA cooling tower alternatives. Regional Board member Gary Shallcross stated that the process had been performed backward (adoption of mitigation truncated discussion of alternatives) and indicated that he would have liked to have seen an analysis of BTA alternatives. Despite these concerns, the Regional Board at the October 27, 2000 meeting voted to adopt Order 00-041 without further discussion or analysis of cooling water system alternatives.

52. Based on the conclusory and self-serving Section 316(b) Assessment prepared by Duke Energy, Regional Board Order 00-041 concluded that ì[i]n this case the costs of alternatives to minimize entrainment impacts are wholly disproportionate to the environmental benefits.î Neither Order 00-041 nor the Section 316(b) Assessment contains an actual evaluation or analysis of costs versus benefits to support this conclusion. Moreover, the use of the ìwholly disproportionateî standard is inconsistent with the CWA and, therefore, illegal.

53. After acknowledging that minor intake structure modifications proposed by Duke ìalone are not sufficient to minimize adverse environmental effects of the intake system and to achieve compliance with the BTA requirements of section 316(b) because the modifications do not address entrainment impacts,î Regional Board Order 00-041 outlines an ìEnvironmental Enhancement Programî to be funded by the $7 million mitigation fund described in paragraphs 31 and 32, above, and concludes that this program constitutes BTA under Section 316(b) to minimize entrainment impacts. In other words, Order 00-041 unlawfully bypasses any discussion or analysis of BTA alternatives for the CWIS and substitutes an unproven environmental enhancement program as BTA in place of such analysis. Additionally, Order 00-041 does not contain any analysis of the potential feasibility, effectiveness or cost of the proposed Environmental Enhancement Program.

54. On October 25, 2000, the Energy Commission adopted Order 00-1025-24 approving Duke Energyís application for certification of the MLPP expansion and authorizing commencement of plant construction. None of the Energy Commissionís approval documents remedied or substantively addressed the failure of project documents and approvals to evaluate and require BTA.

55. On November 24, 2000, Petitioner Voices of the Wetlands submitted its Petition Requesting Review of the Moss Landing Power Plant Project to the State Board in order to appeal Regional Board Order No. 00-041. Petitioner asserted that the Regional Board failed to adequately evaluate BTA in disregard of its own September 15, 2000 order to explore alternative technologies for the plant. In addition, Petitioner alleged that the thermal discharge restrictions in the permit were unenforceable and thus improper. Finally, Petitioner argued that the proposed mitigation program was inappropriate to compensate for the adverse environmental impacts that would be inflicted by the new generating units. Two other petitioners, Monterey Parkway and Carolyn Nielson, also filed timely petitions with the State Board raising similar and related issues.

56. On June 21, 2001, the State Board issued Order No. WQ 01-10 rejecting the petitions of Monterey Parkway and Carolyn Nielson and partially rejecting Petitioner Voices of the Wetlandsí petition as to the issues of BTA and mitigation of impacts.

57. Petitioner has submitted oral and written comments raising all factual and legal arguments concerning the Permitís substantive inadequacies and has exhausted all available administrative remedies.

58. Petitioner has no plain, speedy, or adequate remedy in the ordinary course of law in that, unless the Court grants the requested writ of mandate requiring the State Board and the Regional Board to comply with their legal duties, Respondents and real party-in-interest Duke Energy will continue to proceed in violation of the law.

59. Petitioner has mailed a copy of this petition to the Attorney General for the State of California. A copy of the letter to the Attorney General enclosing the petition is attached as Exhibit A.

60. Petition has requested that Respondents prepare the administrative record for this matter. See Request for Preparation of Record of Proceedings filed concurrently with this Petition. The administrative record will be lodged with the Court at least five days prior to the hearing on this matter, pursuant to the Local Rules.

61. Petitioner has incurred substantial costs and attorneysí fees that will continue to accrue in an amount not yet determined. Pursuant to CCP ß 1021.5, Petitioner is entitled to an award of attorneysí fees if it prevails in this action because this Petition seeks to enforce important rights affecting the public interest which, if enforced, will confer significant benefits on the general public. Accordingly, Petitioner will seek an award of fees and costs if it prevails in this action.

STANDARD OF REVIEW

62. California Water Code ß 13330(d) provides that ìthe court shall exercise its independent judgment on the evidence in any case involving judicial review of a decision or order of the state board issued under Section 13320, or a decision or order of a regional board for which the state board denies review under section 13320.î

CLAIMS FOR RELIEF

First Claim for Relief

(Failure to Require BTA Under CWA Section 316(b))

63. Petitioner incorporates the allegations of paragraphs 1 through 62, inclusive, as though fully set forth herein.

64. In issuing Regional Board Order No. 00-041 and State Board Order No. WQ 01-10, Respondents arbitrarily and capriciously abused their discretion by approving a NPDES Permit that does not reflect or require use of the best technology available for cooling water intake structures at the MLPP facility for minimizing the significant adverse environmental impacts of the facility on Elkhorn Slough, in violation of 33 U.S.C. ß 1326(b).

65. The failure of Respondents to require BTA in Order Nos. 00-041 and WQ 01-10 constitutes a prejudicial abuse of discretion in that Respondents failed to proceed in the manner required by law, rendered decisions not supported by their findings and/or made findings not supported by the weight of the evidence.

Second Claim for Relief

(Failure to Consider, Analyze or Make Specific Findings Regarding the Feasibility of BTA Technologies)

66. Petitioner incorporates the allegations of paragraphs 1 through 62, inclusive, as though fully set forth herein.

67. In issuing Regional Board Order No. 00-041 and State Board Order No. WQ 01-10, Respondents arbitrarily and capriciously abused their discretion by refusing to consider, analyze or make specific findings regarding the feasibility of known and proven BTA cooling water technologies such as closed-cycle wet recirculation and air cooling. In the absence of such evaluation, Respondents did not and could not properly carry out their legal obligation to ensure that the cooling water intake structures for the MLPP reflect BTA for minimizing significant adverse environmental impacts on Elkhorn Slough.

68. The failure of Respondents to consider and analyze the feasibility of closed-cycle wet recirculation and air cooling technologies when issuing Order Nos. 00-041 and WQ 01-10 constitutes a prejudicial abuse of discretion in that Respondents failed to proceed in the manner required by law, rendered decisions not supported by their findings and/or made findings not supported by the weight of the evidence.

Third Claim for Relief

(Illegal and Improper Consideration of Economic Costs)

69. Petitioner incorporates the allegations of paragraphs 1 through 62, inclusive, as though fully set forth herein.

70. In issuing Regional Board Order No. 00-041 and State Board Order No. WQ 01-10, Respondents arbitrarily and capriciously abused their discretion by finding that ìthe costs of alternatives to minimize entrainment impacts are wholly disproportionate to the environmental benefits.î This finding was illegal and improper because:

a. Section 316(b) of the CWA does not authorize the consideration of costs or other economic factors in determining BTA, 33 U.S.C. ß 1326(b); and

b. Even assuming that consideration of costs is allowed and appropriate under CWA Section 316(b), Respondents did not undertake any of the cost analyses required by the EPA in its Draft Guidance and proposed regulations under Section 316(b) to support a ìwholly disproportionateî finding, and there is no evidence in the record to support Respondentsí finding that costs are ìwholly disproportionateî to benefits.

71. Respondentsí finding in Order Nos. 00-041 and WQ 01-10 that the costs of BTA such as closed-cycle wet recirculation and air cooling alternatives for minimizing entrainment impacts are wholly disproportionate to the environmental benefits constitutes a prejudicial abuse of discretion in that Respondents failed to proceed in the manner required by law, rendered decisions not supported by their findings and/or made findings not supported by the weight of the evidence.

Fourth Claim for Relief

(Illegal Substitution of Mitigation for BTA and Failure to Analyze Mitigation Feasibility)

72. Petitioner incorporates the allegations of paragraphs 1 through 62, inclusive, as though fully set forth herein.

73. In issuing Regional Board Order No. 00-041 and State Board Order No. WQ 01-10, Respondents arbitrarily and capriciously abused their discretion by adopting an ìEnvironmental Enhancement Programî in lieu of, and as a substitute for, consideration and implementation of BTA technologies such as closed-cycle wet recirculation and air cooling. This action was illegal and improper because:

a. Section 316(b) of the CWA, on its face and as interpreted by EPA, does not allow for the substitution of mitigation funding or restoration projects in lieu of requiring BTA for minimizing adverse environmental impacts; and

b. The record does not contain any analysis or other evidence to support Respondentsí finding that the ìEnvironmental Enhancement Programî will, in fact, offset the projectís significant adverse environmental impacts, including, but not limited to, any analysis of (1) how the cost estimates for wetlands restoration were calculated, (2) whether sufficient land is available for purchase and set aside as wetlands restoration habitat, and (3) what can be concluded about the feasibility and success of the proposed wetlands mitigation measures from the results of other similar, actual restoration and enhancement projects undertaken elsewhere.

74. Respondentsí adoption in Order Nos. 00-041 and WQ 01-10 of a theoretical Environmental Enhancement Program in lieu of requiring known and proven BTA technologies such as closed-cycle wet recirculation and air cooling constitutes a prejudicial abuse of discretion in that Respondents failed to proceed in the manner required by law, rendered decisions not supported by their findings and/or made findings not supported by the weight of the evidence.

 

RELIEF REQUESTED

Wherefore, Petitioner prays for entry of judgment as follows:

1. For issuance of a peremptory writ of mandate, pursuant to CCP ß 1094.5, directing Respondents to set aside Regional Board Order No. 00-041 and State Board Order No. WQ 01-10;

2. For an award of Petitionerís costs of suit (including reasonable attorneys, witness, and consultant fees) as authorized by CCP ß 1021.5 and any and all other relevant provisions of law; and

3. For such other equitable and legal relief as the Court deems just and appropriate.

 

Dated: July 26, 2001
Respectfully Submitted,
EARTHJUSTICE LEGAL DEFENSE FUND

By:___________________________________ Deborah A. Sivas
Attorneys for Petitioner VOICES OF THE WETLANDS

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