heat energy discharged as a result of the process.
A typical Lovett intake structure, with pump and screen, is depicted on Exhibit "B", page 1, of the Kosior Affidavit. So called "trash racks", consisting of steel vertical bars, are placed at the entrance of each intake to prevent large debris, boats, people, large fish and other marine life from entering a pumping chamber or three sided tank. Behind the trash racks, are 3/8 inch mesh so called "vertical traveling screens". These rotate upwardly in the intake chamber, in the manner of a conveyor belt, ahead of the centrifugal intake pump, to prevent debris, fish and other marine life larger than 3/8 inch from entering the intake pump which services the condensers. Objects smaller than 3/8 inch pass through the intake. Entrainment is said to occur when aquatic life measuring less than 3/8 inch is drawn through the vertical traveling screens, passes into the cooling water intake unit and is heated in the condenser and discharged with the heated water back to the River. Impingement of aquatic life larger than 3/8 inch is said to occur when it is drawn into the unit, compressed against the vertical screen, and thereafter washed off the screen with water jets, into the screen wash trough, which returns it to the River.
On May 30, 1989, O&R applied to DEC to renew its SPDES permit for the Lovett facility which would expire in December 1989. After the usual procedures involving public notice, the DEC issued a renewal permit to O&R covering the operations described above, together with other discharges by O&R at the Lovett plant not relevant to this case. The renewal permit, which became effective October 1, 1991, and expires October 1, 1996, is Exhibit "A" of the Kosior Affidavit.
Riverkeeper had written to Mr. Edward W. Radle, Supervising Aquatic Biologist, the DEC officer in charge of the drafting of the permit (the "Permit Writer") expressing its views, discussed below.
Familiarity on the part of the reader with the entire permit is assumed. We summarize the permit only to the extent deemed necessary. The SPDES permit grants a single authorization (No. 003) for Units 1, 2 and 3; another authorization, (No. 004) for Unit 4, and one for Unit 5 (No. 019). Each of these call for a maximum temperature at discharge of 107degreeF, and a maximum difference between intake and discharge of 22.5degreeF in summer, and 28.5degreeF in winter. The permit provides for a maximum of 161.0 million gallons per day for Units 1, 2 and 3, 150.2 million gallons per day for Unit 4, and 172.8 million gallons per day for Unit 5; making a total maximum discharge under the SPDES of 484.0 million gallons per day. While the permit does not limit the number of days of operation, in practice far less water is actually pumped under the permit than could be pumped if the plant operated at 100% average annual capacity.
The SPDES permit, commencing at page 11, contains a list entitled "Additional Requirements". There are fourteen such separate requirements or Conditions. Some do not relate to the cooling water, or merely require specialized bookkeeping; e.g. Condition 5b, which requires that daily water use shall be measured and logged for the outfalls on the condenser cooling, and that temperature of the intake and discharges must be recorded continuously. Condition 8 contains a specific requirement for a report to be submitted for October 1993, "on the economic and engineering possibilities for reducing the quantities of waste heat rejected[sic] to the Hudson River and of condenser cooling water used". This condition also provides that "reduction in the use of cooling water shall be considered both as a result of decreased need due to beneficial use of turbine exhaust steam, and as an independent method of reducing entrainment and impingement" [of marine life].
Condition 9, upon which this litigation is founded, is a new provision which was not found in the permit being renewed. It had been proposed by the Permit Writer for the DEC and opposed by O&R. Riverkeeper also opposed Condition 9, arguing essentially that it was too vague to be enforceable, and therefore would not protect the marine life in the river. Condition 9 reads in full as follows:
9. The location, design, construction, and capacity of the cooling water intake structure shall reflect the best technology available for minimizing adverse environmental impact. (Emphasis added)
Condition 10 requires the permittee to submit at least 60 days in advance notification of any change proposed in the location, design, construction, operation or capacity of the cooling water intake structure with, "a demonstration that the change reflects the best technology currently available for minimizing adverse environmental impact". Condition 10 also provides that, "prior DEC approval is required before initiating such change". Condition 11 requires a report of information concerning impingement, and Condition 12 requires a sampling program to determine "the abundance and species composition of fish and invertebrates impinged on the intake traveling screens". Condition 13 provides that if more than 100,000 fish per year for any two consecutive years should be impinged at Lovett, a detailed technology review and recommendations to mitigate impingement would be required. Condition 13c also provides for specific modification of the screen wash water discharge sluices, "so that hazards to the viable fish in the screen wash water sluices have been minimized". Condition 14 provided for an entrainment monitoring program with sampling.
On October 20, 1989, initiating the drafting of the renewal permit, the Permit Writer wrote to O&R enclosing a proposed draft of biological monitoring/mitigation conditions for inclusion in the SPDES renewal permit. Among these draft conditions was what later became Condition 9.
Defendant asserts that Mr. Kosior, Manager of the Environmental Services Department of O&R, and by inference, the Permit Writer:
"[knew] at that time there was no generally applicable definition of "best technology available" established by DEC, that the definition would vary from plant to plant on a case-by-case basis, and that various technologies were then available or under study."