San Jose Mercury story about our court victory


Posted on Thu, Oct. 03, 2002

Power plant told to review use of water for cooling

By Ken McLaughlin

Mercury News

In a major victory for environmentalists concerned with the possible degradation of the Elkhorn Slough, a Monterey County judge has ruled that more expensive cooling methods must be studied for Duke Energy's huge power plant at Moss Landing.

Superior Court Judge Robert O'Farrell's decision won't interrupt the flow of 2,550 megawatts of power -- about 5 percent of California's total electricity use on a hot summer day. But the decision, released Thursday, will force the Regional Water Quality Control Board to review its permit to make sure that the ``best technology available'' is being used to protect marine life, as required by the U.S. Clean Water Act.

``It's a clear victory that says that the water board messed up,'' said Deborah Sivas, director of the Earthjustice Environmental Law Clinic at Stanford University. ``It could eventually invalidate the permit.''

Officials at the board could not be reached for comment late Thursday.

The law clinic represents a group of environmentalists called Voices of the Wetlands, who had filed suit against the board for issuing a permit two years ago. Duke Energy, which bought the plant from Pacific Gas & Electric Co. in 1998, was also named in the suit.

The modernized plant -- which opened several months ago and became the largest non-nuclear power plant in California -- is not only more than 1,000 megawatts bigger than the plant PG&E operated there, it is 85 percent cleaner and 30 percent more efficient, Duke officials have argued.

They say it uses half as much cooling water per megawatt-hour, lessening its effect on the adjacent Monterey Bay National Marine Sanctuary.

Duke Energy officials said late Thursday that they had not decided whether to appeal the decision.

``At this point we just don't know,'' said Patrick Mullen, a spokesman for Duke.

But Mullen said the judge's decision simply ``prolongs the process.''

``The state needs to invest in and modernize older power plants and

that's exactly what we've been doing,'' Mullen said. ``We've complied fully with the process.''

The dispute arises from the addition of two 530-megawatt, natural-gas-fired generating units. The lawsuit was over the fact that Duke decided to draw 1.2 billion gallons of water a day from the bay to cool its power plant rather than use a ``closed-cycle'' system.

That means the plant is sucking in and killing plankton, marine eggs and other parts of the marine food chain in the slough, Voices of the Wetlands argues. The group also contends that there are alternative cooling systems widely used by other power plants that use much less or no seawater.

At a Sept. 5 hearing, Voices of the Wetlands argued that Duke made no effort to implement the ``best available technology.'' Duke disputes the claim, saying that the closed-cycle alternative wasn't necessary. Officials cited biological surveys conducted in the 1980s.

The studies were used by the regional board staff in 1995 to find that there was no significant impact on fish and invertebrates.

Duke produced cost estimates that it claimed made the alternative cooling technologies ``wholly disproportionate'' to any environmental benefits.

... O'Farrell ruled that the ``evidence is at best meager, and at worst, speculative and based on historical conjecture.''

The judge called the Elkhorn Slough ecosystem ``a threatened, biologically rich wetland system of exceptional value which has been subjected to 50 years of entrainment by the Moss Landing Plant and will be impacted for the life of the facility.''


Mercury News Staff Writer Robin Evans and Monterey County Herald Staff Writer Dennis Moran contributed to this report. Contact Ken McLaughlin at or (831) 423-3115.

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