In re Dominion Energy Brayton Point, L.L.C.
Dominion Energy Brayton Point, L.L.C. (“Petitioner”) seeks review of a final National Pollutant Discharge Elimination System permit decision (“Final Permit”) for Brayton Point Station (“BPS”) initially issued by the U.S. Environmental Protection Agency (“EPA”) Region 1 (“Region”) on October 6, 2003. The Final Permit is again before the Environmental Appeals Board (“Board”) following the Board’s prior remand and the Region’s subsequent issuance of its Determination on Remand.
The Final Permit continues Petitioner’s authorization to operate the BPS power plant located in Somerset, Massachusetts, near the border of Rhode Island, on the shores of Mount Hope Bay. Among other things, the Final Permit imposes certain limitations under CWA sections 316(a) and (b), 33 U.S.C. §§ 1326(a) and (b), that will effectively require all four of BPS’s electric generating units to be retrofitted from open-cycle cooling systems to closed-cycle cooling systems at considerable cost.
CWA section 316 contains provisions specifically relevant to thermal discharges. 33 U.S.C. § 1326. Under specific circumstances, section 316(a) allows EPA to impose less stringent effluent limitations on thermal discharges than might otherwise be required under section 301. Id. §§ 1311, 1326(a). Section 316(b) essentially provides that the location, design, construction, and capacity of cooling water intake structures at point sources must reflect the best technology available for minimizing environmental impact. Id.
In its prior appeal, Petitioner challenged a number of aspects of the Final Permit determination. The Board found no clear error with respect to the issues being appealed, except for the following two substantive issues, which were remanded to the Region: (1) the selection of five days as the maximum number of days on which the temperature in Mount Hope Bay was allowed to exceed 24 E C (“the maximum temperature exceedance frequency”), which the Region used to derive appropriate discharge limitations under CWA section 316(a), 33 U.S.C. § 1316(a); and (2) whether the projected noise impact of closed-cycle cooling selected as the “best available technology” by the Region pursuant to CWA section 316(b), 33 U.S.C. § 1326(b) –would likely violate the Massachusetts noise regulations. The Board also directed the Region to place in the administrative record a missing document containing the Region’s re-analysis of its production foregone calculation (calculated in the course of selecting the “best technology available” under CWA section 316(b)), and to correct a typographical error in the Final Permit.
In its Determination on Remand, the Region reexamined the remanded issues and ultimately reaffirmed the Final Permit conditions. In so doing, the Region articulated its rationale for selecting the five-day maximum temperature exceedance frequency. Additionally, the Region reexamined whether the imposition of closed-cycle cooling at BPS would likely result in an irreconcilable conflict with any Massachusetts noise regulations and determined that it likely would not. The Region went a step further and also analyzed whether the projected noise from closed-cycle cooling would likely violate noise levels identified in an EPA guidance document and again determined that it likely would not. Finally, in addition to ensuring that the missing production foregone document was included in the record, the Region, in response to this Petition, provided its calculations underlying the re-analysis.
In this Petition for Review, Petitioner challenges the Region’s rationale for selecting five days as the maximum temperature exceedance frequency, as well as the Region’s decision not to reopen the record for public comment on this issue. Petitioner also contests the Region’s determination that the projected noise impact from closed-cycle cooling at BPS likely will not violate EPA guidance, but the Board finds that Petitioner does not meaningfully contest in this Petition for Review the Region’s determination with respect to Massachusetts noise regulations. Additionally, Petitioner argues that the production foregone calculations recently provided by the Region establish the Region’s clear error with respect to its consideration of the “best technology available” for BPS under CWA section 316(b). Finally, Petitioner seeks to supplement the record with a number of documents not in the administrative record at the time of the Final Permit issuance.
Held: The Petition for Review is denied. The Board determines as follows:
(1) The Region did not abuse its discretion under 40 C.F.R. § 124.14 when it declined to reopen the record for public comment on the issue of the five-day temperature exceedance frequency where the Region’s Determination on Remand did not result in any change to a permit condition or otherwise raise substantial new questions concerning the Final Permit. However, because this is the first opportunity Petitioner has had to comment on the Region’s rationale for its selection of five days as the maximum temperature exceedance frequency, the Board finds it appropriate to consider documents submitted with the Petition that were not in the administrative record at the time the Final Permit decision was made, to the extent they relate to the issue of the maximum temperature exceedance frequency. Documents relating to issues that are beyond the scope of remand or otherwise not relevant to the issues on appeal are stricken.
(2) The Region’s selection of five days as the maximum temperature exceedance frequency was rational in light of all the information in the record, taking into account the Region’s obligation to assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in Mount Hope Bay. The Board makes this determination based upon the data available, the associated unavoidable scientific uncertainty, and the due deference normally afforded to a permitting authority’s technical determinations.
(3) Although Petitioner does not meaningfully contest the Region’s Determination on Remand with respect to whether the projected noise impacts of closed-cycle cooling will likely violate Massachusetts noise standards, the Board’s review of the administrative record leads the Board to conclude that the Region’s consideration of the noise impacts was reasonable and that the imposition of closed-cycle cooling likely will not result in an irreconcilable conflict with Massachusetts noise regulations. Moreover, the issue of whether the imposition of closed-cycle cooling at BPS will likely comply with EPA’s own guidance on noise is beyond the scope of remand and all discussion on that issue is, therefore, stricken from the record.
(4) The Region has corrected any deficiency in the administrative record with respect to the production foregone calculations and has satisfied the Board’s prior Remand Order in that regard. However, the Region did acknowledge an error in its calculations. Petitioner’s argument regarding the Region’s error in calculating the production foregone goes beyond the scope of remand, but in any event the Board concludes that such error was harmless, given the insignificant role that the production foregone calculation played in the Region’s selection of the best technology available for BPS.