A Court Upholds Key State Environmental Regulation

A state appellate court today rejected an attempt by the owner and operator of the Indian Point nuclear power plant to overturn a key state clean water regulation.

"This is a huge victory for the Hudson River and other New York waters that suffer damage when power plants and other industrial users withdraw massive amounts of water," Spitzer said. "Thanks to the existence of technological alternatives, power plants can cool their facilities without using vast quantities of water and killing billions of fish."

State Department of Environmental Conservation Acting Commissioner Denise Sheehan said: "Today’s ruling was critical in upholding New York’s ability to protect the Hudson River and water bodies throughout the state. The Hudson River is one of the most important estuaries in the country and this decision will ensure the continued protection of this and other precious aquatic resources."

Entergy, the owner of Indian Point, located in the town of Buchanan in Westchester County, withdraws billions of gallons of water from the Hudson River every day to cool its twin nuclear reactors. More than a billion fish are killed each year when they are sucked out of the river and into the power plant’s cooling systems. Indian Point uses 700 billion gallons of Hudson River water each year - - more than the volume of the entire river, from the Battery in Manhattan to the federal dam in Troy. Indian Point’s peak withdrawal of 2.5 billion gallons per day is twice the daily drinking water consumption of New York City and Westchester County combined.

In 1974, the State of New York adopted regulations to protect rivers and lakes, such as the Hudson River, from damage caused by industrial plant cooling water intakes. The regulations have governed operations at scores of power plants and industrial facilities throughout the state. In November 2004, DEC warned Entergy that the regulations required it to reduce the environmental impact of the Indian Point cooling system.

Entergy argued that the regulations were invalid because of a company claim that there was no public hearing on one element of the regulation. A five-judge appellate court today unanimously rejected this argument and allowed the state’s water regulations to stand.

As part of the case, Entergy had sought to overturn the state rules, which are more protective of the environment than new federal rules that were adopted by the Environmental Protection Agency in 2004. Those EPA rules are currently being challenged in federal court by New York and other states.

Today’s decision was issued by the Appellate Division, Third Department, located in Albany.

The case was handled by Assistant Attorney General Susan Taylor of the Environmental Protection Bureau, under the supervision of Deputy Bureau Chief Lisa Burianek. DEC attorneys William Little and Mark Sanza worked on the case for the DEC. The environmental group, Riverkeeper, is also a party in the case.

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