Compelling State Review of SPDES Permits
In 2001, using an aggressive and groundbreaking interpretation of the state Uniform Procedures Act and SPDES law, Riverkeeper petitioned DEC to evaluate the long-dormant application for the renewal of the SPDES permit for the Danskammer power plant, one of the worst fish-killers on the Hudson. For more than ten years, Danskammer has continued to operate under its expired permit pursuant to automatic administrative extension – without any DEC review. The expired permit and the renewal application both call for once-through cooling, the most destructive technology, despite the federal Clean Water Act (CWA) requirement of best technology available (BTA) to minimize adverse impacts.In November 2002, having gotten no action from DEC, we filed a lawsuit in state Supreme Court in Albany against DEC and plant owner Dynegy alleging that DEC’s 10-year delay in processing the permit renewal application for the Danskammer plant is unlawful.

After a decade of bureaucratic delay, we won the opportunity to compel Danskammer (and the other once-through cooled Hudson River power plants) to modernize their antiquated intakes, which collectively withdraw one trillion gallons per year. In late March 2003, State Supreme Court Judge E. Michael Kavanaugh determined to order DEC to issue a Danskammer draft SPDES permit by July 1, 2003. “A decade of agency inaction has allowed Danskammer to continue killing millions of Hudson River fish by using outmoded, destructive cooling systems,” said Riverkeeper executive director Alex Matthiessen. “With Judge Kavanaugh’s order, DEC finally has to require the plant to use the best technology available, which would drastically cut the fish kills.”

As a result of Riverkeeper's lawsuits, DEC is issuing new permits for the four existing once-through cooled power plants on the Hudson River, including Danskammer.

DEC Issues deficient SPDES Permit
Despite our determined efforts, in May 2006 the DEC issued a new SPDES permit for Danskammer, effective June 1, 2006. This permit essentially ignored the federal mandate requiring BTA and allowed the antiquated and destructive once-through cooling to remain in operation. The DEC decision found that: (1) a closed-cycle cooling system retrofit (which uses 96% less water) would not fit on the site: and (2) the facility would be treated as if it operated every day of the year at maximum capacity despite the fact that the plant never actually operates at full capacity (this would give Danskammer artificial reductions in water use and fish mortality rates on the Hudson). In essence, the facility is allowed to continue to operate as it has operated for the past half-century.

See May 24, 2006 PRESS RELEASE.

Riverkeeper Seeks Judicial Review of DEC Decision
Therefore, in the summer of 2006, Riverkeeper sued DEC and Dynegy, owner and operator of Danskammer power plant, challenging that DEC’s decision and the operation of the power plant was in violation of the Clean Water Act. The lawsuit, filled in the Supreme Court of New York State, Westchester County, alleges that DEC ignored federal and state mandates to use “best technology available “ to avoid environmental damage caused by power plants using river water for their cooling water systems. As well, Riverkeeper challenged DEC’s decision to use a “full capacity flow baseline” to calculate aquatic mortality rates from impingement and entrainment. According to the current SPDES permit, Danskammer must reduce fish mortality due to impingement and entrainment by approximately 80% and 70% respectively. IN reality, Danskammer consistently operates at nearly half-capacity. Thus, by using an unrealistic full credit for reducing the percent mortality of aquatic organisms without actually reducing anything! This is essentially nothing more that accounting fraud—using hypothetical numbers to create a false sense of achievement.

See July 26, 2006 PRESS RELEASE for more details.