BILL ANALYSIS 1
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: SB 42 HEARING DATE: March 24, 2009
AUTHOR: Corbett URGENCY: No
VERSION: March 18, 2009 CONSULTANT: Bill Craven
DUAL REFERRAL: Energy, Utilities and CommunicationsFISCAL: Yes
SUBJECT: Coastal resources: seawater intake.
BACKGROUND AND EXISTING LAW
The California Energy Commission has authority to certify sites
for the construction of new or expanded thermal powerplants in
California.
"Once through cooling" refers to technologies at steam turbine
power plants that rely on open seawater intakes to pump seawater
from an ocean, estuary, or bay and then discharge the water back
to the ocean after only one cycle of cooling.
This technology, which became widely used in the 1950's and
thereafter, has become intensely controversial because of its
now well-known negative impacts on aquatic life. The open
intakes suck in a lot of water, and with it a lot of aquatic
life, which is either killed directly by contact with the
equipment, or sucked into the turbines which run the power
plant. Billions of fish and other organisms are killed each
year.
In 2004, the US EPA began developing new regulations to
implement Sec. 316(b) of the Clean Water Act, which applies to
power plants. When finalized, the regulations were challenged by
an environmental coalition, which, in 2007, achieved a sweeping
victory in the 2nd Circuit Court of Appeals. The decision, known
as Riverkeeper II, confirmed the plaintiffs challenge that the
new rules did far too little to protect aquatic life around
power plants.
The EPA regulations would have allowed various performance
standards to be adopted that would have allowed once through
cooling technologies to remain in place. It rejected the
environmentalists' position that the Clean Water Act instead
demanded a more rigorous standard ("best technology available")
and further, the court determined that the EPA erred in
providing a form of a cost-benefit analysis to determine whether
a power plant should be allowed to continue to use once through
cooling.
Since the Riverkeeper II decision, the SWRCB has been working on
its own state regulations to implement Sec. 316(b) of the Clean
Water Act in California. That decision, while not controlling in
California, is considered to be persuasive here. The Riverkeeper
II decision is currently on appeal to the U.S. Supreme Court and
a decision could be available in late spring or early summer of
this year.
A key question on appeal is whether and to what extent "cost"
should be a factor in applying the Clean Water Act's "best
technology available" requirement.
For now, Riverkeeper II is the most definitive statement in the
country of what the law is in regard to once through cooling at
power plants. It contributed to a resolution of the Ocean
Protection Council (two agency secretaries and the Controller
were the voting members at the time) calling for the phase out
of once through cooling, and California's coastal conservation
community has been well-educated and activated on this issue.
Many in the conservation community believe that alternative
technologies, such as dry-cooling, or cooling with recycled
water, are vastly preferable technologies.
An Ocean Protection Council (OPC) resolution also declared it
to be premature to approve desalination facilities that would be
co-located with a power plant.
In the meantime, the US EPA has suspended its regulations that
were challenged in Riverkeeper II, and it has directed its
regional offices and states to use their best professional
judgment in implementing the applicable section of the Clean
Water Act.
PROPOSED LAW
This bill makes several findings concerning the scientific and
policy premises of the proposed act. Among them, the bill
declares that:
1) California has 19 coastal power plants that use nearly
16.5 billion gallons of water per day;
2) Numerous studies have determined that there are multiple
environmental impacts associated with once through cooling
technolog;
3) The Ocean Protection Council, by resolution, has called
for an expeditious phase out of the technology;
4) The cooling systems used by these power plants destroy
an estimated 79 billion fish and aquatic organisms each
year, including in the Bay-Delta;
5) The continuation of this technology is unnecessary and
contrary to several pieces of recent California legislation
that establishes international standards for marine
conservation, including the Ocean Protection Act, the
Marine Life Protection Act, and the Marine Life Management
Act.
The bill defines the "capacity utilization rate" as the ratio
between a power plant's average annual net generation of power
and the total net capability of the facility to generate power.
In other words, the term refers to the percentage of the total
power the plant can produce that is actually used. The proposed
phase out of once through technology permit approvals first
targets plants with an annual capacity rate of 20 percent or
less, i.e., those plants that typically generate only 20% of
their capacity. The bill proposes that plants in this category
be required to phase out their once through cooling technologies
on or before 1/1/15.
Next, the bill proposes a ban on new once through cooling plants
after 1/1/10 except for those facilities that would use once
through cooling for a limited time to convert to another
technology.
The bill would direct the State Water Resources Control Board
(SWRCB) to develop a schedule before 1/1/10 to phase out
once-through cooling at the remaining powerplants.
The author has provided a spreadsheet that describes the power
plants at issue and how the phase out would apply to each of
them. In summary, over of the steamboiler plants that used
once through cooling were used at less than 20% of their
operating capacity, and those are the plants that would be first
affected by this bill.
Desalination. Because some companies and local governments and
special districts are considering the use of the ocean intakes
from power plants with once through cooling technologies to
co-locate with a new desal facility, the bill also proposes
establishing criteria for regulating when desal facilities could
appropriately use those intakes. The criteria are not yet
proposed by the author, however she has indicated her desire to
work on those when the bill is heard at the Committee and the
Energy and Utilities Committee. However, the author has
communicated to the Committee that her intention is to recommend
a series of criteria that emphasize alternatives to once through
cooling. These include a range of considerations including the
use of recycled water, conservation, submission of an urban
water management plan, adherence to the voluntary principles of
the California Urban Water Conservation Council, the
unsuitability of subsurface intakes, stormwater capture,
consistency of the plant's emissions with AB 32<1>, and similar
criteria. (The AB 32 reference would underscore the fact that
many of these plants not only use once through cooling, but they
also emit far more greenhouse gases than more modern
conventional plants, not to mention renewable energy facilities.
As the opposition points out, these plants could also increase
emissions to compensate for less efficient cooling technologies
that are concededly less damaging to the marine environment).
Assuming the bill advances, it is evident that the Committee
will retain an interest and involvement in preparing these
amendments that will be adopted in the Energy Committee or a
later venue.
The discharge permits of the power plants would be reviewed for
their consistency with this phase out by the appropriate
regional water board. The board's review would be limited to
consideration of the open seawater intake and whether the time
line for phasing out the use of once through cooling technology
has been complied with. The author has indicated that the board
could impose mitigation requirements on power plants that do not
currently use fish screens, for example.
Until the phase out is completed, operators of power plants that
use once through cooling would pay a new fee to the SWRCB based
on the amount of seawater that is used. The fee has not been
---------------------------
<1>
established in the bill but would be set by the SWRCB. Proceeds
of the fee would go a new Marine Life Restoration Account which
would be subject to appropriation by the Legislature and made
available to the Coastal Conservancy (as directed by the Ocean
Protection Council) and the SWRCB.
ARGUMENTS IN SUPPORT
Many coastal environmental organizations support this bill. In
the Bay Area, they point to localized impacts on fisheries, such
as salmon and smelt killed at intakes at power plants in the
Delta. They point to the Central Coast, where 3 power plants,
including one at Morro Bay, is in conflict with state and
federal efforts to preserve import fisheries habitat. They point
to Southern California, where 12 power plants south of Santa
Barbara use once through cooling.
Statewide and national organizations are also in support.
Organizations such as Sierra Club California, the Ocean
Conservancy, the Planning and Conservation League, Surfrider
Foundation, and the California Coastkeeper Alliance are all in
support.
The supporters are alarmed that the state does not have a
uniform policy on once through cooling. Such a policy could help
alleviate the marine life devastation that causes an estimated
79 billion fish and other marine life to be destroyed each year
in California, according to the SWRCB.
Relying on studies from the Energy Commission, the Ocean
Protection Council, and others, the proponents contend:
1. That the plants considered essential for grid
reliability are already slated for replacement
2. That many of the plants can be repowered without using
once through cooling, and four have already done so.
3. The California Energy Commission has concurred that once
through cooling is a contributing threat to the degradation
of California's coastal waters.
4. That even retrofitting the nuclear power plants has been
shown to be technically and logistically feasible in a
study commissioned by the OPC and undertaken by the Jones
and Stokes consulting firm.
5. Four of the coastal power plants have already agreed to
switch from once through cooling to air cooling technology.
6. Two former once through cooling plants have been
retired.
7. Phasing out once through cooling is consistent with AB
1576 (Nunez) which supported the modernization of the
coastal steam plants.
ARGUMENTS IN OPPOSITION
The opposition arguments fall mainly into these categories: (1)
California needs the once through cooling power plants to
maintain "grid reliability" an assertion that the proponents do
not accept. This, and other considerations more appropriate for
the committee of second referral will not be discussed in this
analysis. (2) Use of alternative technologies will exacerbate
California's water shortage and make it more difficult to site
desalination plants. These arguments were offered prior to the
Committee learning of the author's intent to develop standards
for siting desal plants. It is not known what effect, if any,
this new information has on the opposition.
However, it should be said the opposition is concerned that the
bill will make it more difficult to finance improvements at
power plants that use once through cooling that are not
currently holding long-term contracts for energy sales. The
opposition is also concerned that the bill could have unintended
consequences on the negotiations now underway among several
state agencies in a working group on once through cooling that
is considering several of these inter-connected energy policy
questions.
Many of the opposition are affiliated in some respect with the
proposed Poseidon desal plant in Carlsbad, which is to be
co-located with a power plant.
COMMENTS
Assuming the bill moves forward as a work in progress, the
author should clarify whether the definition of "capacity
factor" applies to each plant, not each unit of each plant.
Similarly, the author should consider whether the provision on
page 6, line 28 would be duplicative of existing SWRCB
authority.
The author should remove the reference to the State Lands
Commission resolution at the next policy committee hearing.
That resolution was withdrawn for technical reasons. The OPC
resolution remains in effect.
SUPPORT
American Federation of State, County and Municipal Employees
California Coastkeeper
Defenders of Wildlife
Greenspace-the Cambria Land Trust
Heal the Bay
Monterey Bay Aquarium
Monterey Coastkeeper
Ocean Conservancy
Orange County Coastkeeper
Pacific Coast Federation of Fishermen's Associations
Planning and Conservation League
Ratepayers for Affordable Clean Energy
Residents for Responsible Desalination
San Luis Obispo Coastkeeper
San Francisco Baykeeper
Santa Monica Baykeeper
Sierra Club California
SLO Coast Alliance
Surfrider Foundation
2 Individuals
OPPOSITION
American Council of Engineering Companies
Association of California Water Agencies
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Council for Environmental and Economic Balance
California League of Food Processors
California Manufacturers & Technology Association
California Taxpayers' Association
Chemical Industry Council of California
City of Carlsbad
Greater Fresno Area Chamber of Commerce
Independent Energy Producers
Industrial Environmental Association
Milpitas Chamber of Commerce
Olivenhain Municipal Water District
Pacific Gas and Electric Company
Rincon del Diablo Municipal Water District
San Diego County Water Authority
Santa Fe Irrigation District
Sempra Energy
Southern California Edison
Southern California Water Committee
Sweetwater Authority
The Chamber - San Diego East County
Vallecitos Water District
Valley Center Water District
Western Electrical Contractors Association, Inc.