A History of Power Plants on the Hudson

Hudson River Settlement Agreement

The Hudson River Settlement Agreement (HRSA) traces itself back to the 1960’s and the historic Storm King Mountain controversy. In 1964, Consolidated Edison received a license from the Federal Power Commission to construct a pumped-storage hydroelectric facility on top of Storm King Mountain, a beautiful and historically significant promontory located on the shore of the Hudson River in Cornwall, just north of West Point. This triggered tremendous controversy and years of proceedings began involving the Atomic Energy Commission, the Army Corps of Engineers, the EPA and the Second Circuit Court of Appeals.

In 1965, the Second Circuit set aside the Storm King license and remanded the matter back to the Federal Power Commission, a decision that marked the birth of environmental law. The court stated that “The Commission’s renewed proceedings must include as a basic concern the preservation of natural beauty and national historic shrines, keeping in mind that, in our affluent society, the cost of a project is only one of several factors to be considered.” In addition, the court ruled that, “On remand, the Commission should take the whole fisheries question into consideration before deciding whether the Storm King project is licensed.” Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F. 2d 608 (2d Cir. 1965), cert. denied sub nom., Consolidated Edison v. Scenic Hudson Preservation Conference, 384 U.S. 941 (1966).

The 1965 remand, however, did not end the controversy. For years thereafter, many groups, including Scenic Hudson, the Hudson River Fishermen’s Association (Riverkeeper’s predecessor) and the Natural Resources Defense Council did battle to stop the project. While all of this was happening, in 1975 the EPA ordered that the electric generating facilities at Indian Point, Roseton and Bowline would be required to install closed cycle cooling systems in order to reduce their impacts on the Hudson River fish.

On December 19, 1980, the Storm King Controversy and the cooling tower issue were decided under one global settlement that became known as the “Hudson River Settlement Agreement”. Under the Settlement, Con Ed agreed to abandon its Storm King project in exchange for the environmentalists’ agreement not to force the utilities to use closed-cycle cooling. The Settlement obligated the utilities to undertake a series of operational steps to reduce fish kills, including partial outages during the key spawning months. In addition, the utilities agreed to fund and operate a striped bass hatchery, conduct biological monitoring, and set up a $12 million endowment for a new foundation for independent research on mitigating fish impacts by power plants. The agreement became effective upon Public Service Commission approval on May 8, 1981. By its own terms, the Settlement Agreement expired 10 years from its effective date.

The 5-year Clean Water Act permits, known as SPDES permits, for the three HRSA plants (Indian Point Units 2&3, Roseton, and Bowline Units 1&2) expired in 1992. Pursuant to state regulation, once a permit renewal application is filed, the expired permit is administratively extended until a new permit is issued. Administrative extension was never intended to delay the reevaluation of permits for many years, and certainly not for a decade. But that is what has happened. The permits, issued in 1987, for the three HRSA plants allow those plants to continue using the most destructive cooling system, once-through cooling, thereby needlessly slaughtering huge numbers of Hudson River fish.

Unfortunately, the owners of the other once-through cooled plants, which collectively withdraw about 4.5 billion gallons daily at full capacity, are proposing to continue this destructive practice indefinitely. Since expiration of their SPDES permits, New York State DEC has failed to require closed-cycle cooling technology, or taken any other action to renew the permits. Instead, it has sponsored years of negotiations and two environmental impact statements for Indian Point, Bowline and Roseton, which have proven to be fruitless.

The discussions and studies generated during these “Hudson River Settlement” negotiations have underscored the environmental damage caused to the Hudson by once-through cooling, have determined that costs of closed-cycle cooling are not disproportionate to their benefits and have uncovered no serious alternative to closed-cycle cooling. Yet, despite decades of consideration of cooling towers – and their identification as a viable alternative in the second environmental impact statement that the Department declared complete in 2000 – DEC staff is now suggesting several more years of study to confirm their “feasibility.”

With new studies showing key Hudson River fish in decline, we can wait no longer for New York State to determine what technologies these dinosaur plants will use to comply with the Clean Water Act and minimize their impacts on aquatic life. Riverkeeper is pressing the state officials to take action on the permits for the HRSA plants. If permits with adequate technology cannot be agreed upon, we will demand an administrative hearing before an administrative law judge, and if necessary take the state DEC and the plant operators to state court.