STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL
AAEA-NY STATEMENT ON
DRAFT DEC DENIAL OF WATER
In the Matter of the Application of
Entergy Nuclear FitzPatrick LLC
For a Water Quality Certification WQC: DEC # 7-3557-00024/00001
Legislative Public Hearing/July 15, 2008
Town of Scriba Justice Center
43 Creamery Road
Oswego, New York
The Honorable Helene Goldberger
Administrative Law Judge
In connection with the Entergy Nuclear FitzPatrick LLC (FitzPatrick) Application for a New York Department of Environmental Conservation (DEC) Water Quality Certification (“WQC”), the African American Environmentalist Association-New York (“AAEA-NY”) respectfully submits these comments in support of granting a WQC based on environmental justice considerations.
The draft denial of the WQC may lead to the closure of the facility if the Nuclear Regulatory Commission (NRC) denies a license renewal based on the denial of a WQC. Any substantial reduction in the amount of electricity generated by FitzPatrick will spark demand for replacement electricity from power plants in other parts of the state. Unfortunately, these plants are, for the most part, pollution-emitting fossil-fuel plants. In New York City these plants are largely located in low-income and minority communities. As production at these fossil-fuel plants increases, the air quality in and around these plants will further deteriorate, causing a spike in the incidences of respiratory and cardiovascular diseases in these vulnerable communities. The denial of the WQC, to the extent that it leads to fossil fuel replacement of FitzPatrick, effectively places the interests of Lake Ontario fish eggs and larva over the health of New York’s low-income and minority communities.
AAEA has a longstanding interest in reducing air pollution and promoting public health in low-income and minority communities, particularly in African American communities. My name is Norris McDonald and I am the president of the African American Environmentalist Association.  I am presenting this statement today on behalf of AAEA-NY because our New York Director, Dan Durett, has a conflict and is unavailable to appear before you today.
A. AAEA, Air Quality, and Minority Communities
AAEA was founded in 1985 and is a national, nonprofit organization dedicated to protecting the environment, promoting the efficient use of natural resources, enhancing human, animal and plant ecologies, and increasing African American participation in the environmental movement. AAEA’s headquarters is located in the metropolitan Washington, D.C. area and we have approximately 15,000 members worldwide, including approximately 1,000 members in New York. AAEA is deeply concerned with any policy or measure that impacts the air quality of the communities in which it is based or that affects the health of our members and other residents of New York.
AAEA seeks to include an African American point of view in environmental policy and decision-making and seeks to resolve environmental injustice issues through the application of practical environmental solutions. Of particular import to AAEA is the promotion of clean air in African American communities. AAEA promotes the use of nuclear power because it is emission-free and has a demonstrated safety record, whereas fossil-fuel power, although necessary, contributes directly to numerous health issues. AAEA specifically supports the FitzPatrick nuclear power plant because it provides significant electrical capacity to the State of New York with minimal human, animal, air, water, and land impacts.
B. AAEA Brings an Environmental Justice Perspective to the FitzPatrick Permitting Process
The need for greater involvement from an environmental justice perspective in the DEC permitting process has been recognized by the DEC itself. In September 1999, then DEC Commissioner John P. Cahill announced the creation of DEC’s Office of Environmental Justice. This Office, which implements the DEC’s Environmental Justice Program, seeks to “ensure that local communities are given an opportunity to express their concerns and that those concerns are considered when making decisions that potentially impact the environment and public health.” On March 19, 2003, the DEC issued Policy Statement CP-29: Environmental Justice and Permitting. In issuing this policy, the DEC stated that the policy was meant to “promote the fair involvement of all people in the DEC environmental permit process,” and further stated that:
It is the general policy of DEC to promote environmental justice and incorporate measures for achieving environmental justice into its programs, policies, regulations, legislative proposals and activities. This policy is specifically intended to ensure that DEC’s environmental permit process promotes environmental justice.
The DEC did not consider environmental justice in its decision to deny the WQC. We submit that if environmental justice considerations are included in the decision-making process, then the WQC will be approved. We hope the confusing process issues can be resolved so that the most vulnerable citizens of New York will be protected from bad air, high prices and inadequate supplies of electricity.
C. Fossil-Fuel Power Causes Serious Adverse Health Effects
In 1999, coal-fired power plants in the United States emitted into the environment 11.3 million tons of sulfur dioxide (“SO2”), a criteria air pollutant that is correlated to asthma and impaired lung functions, 6.5 million tons of nitrogen oxides (“NOx”) which, when combined with other pollutants and sunlight, forms ozone, another lung irritant linked to asthma, and 1.9 billion tons of carbon dioxide (“CO2”), yet another contributor to increased ozone levels. This equates to approximately 60% of all SO2 emissions, 25% of all NOx emissions, and 32% of all CO2 emissions nationwide.
These and other airborne pollutants emitted by fossil-fuel power stations may have a direct and significant effect on human health. In a study by Abt Associates, one of the largest for-profit government and business research consulting firms in the world, it was found that over 30,000 deaths each year are attributable to air pollution from U.S. power plants. Another study found that air pollution from power plants was a contributing factor to higher infant mortality rates and higher incidences of Sudden Infant Death Syndrome (“SIDS”). Research has further shown that pollutants from fossil-fuel power plants form tiny acidic particles (called fine particulate matter) that are linked to diseases of both the respiratory and cardiovascular systems. Not surprisingly, air pollution has been characterized as one of the largest threats to public health.
D. The Negative Health Effects of Fossil-Fuel Power Are Borne Disproportionately by African Americans
Sadly, these serious health affects disproportionately fall on the shoulders of low-income and minority communities, including African American communities. For instance, the percentage of African Americans and Hispanics living in areas that do not meet national standards for air quality is considerably higher than that of whites. And 68% of African Americans live within 30 miles of coal-fired power plants, compared to 56% of whites. Correspondingly, respiratory ailments affect African Americans at rates significantly higher than whites. Asthma attacks, for example, send African Americans to the emergency room at three times the rate of whites (174.3 visits per 10,000 people for African Americans versus 59.4 visits per 10,000 people for whites), and African Americans are hospitalized for asthma at more than three times the rate of whites (35.6 admissions per 10,000 people for African Americans versus 10.6 admissions for every 10,000 people for whites). Similarly, the death rate from asthma for African Americans is almost three times that of whites (38.7 deaths per million versus 14.2 deaths per million).
E. New York’s Minorities Pay the Price for Fossil-Fuel Air Pollution
New York is no exception to this national crisis. In New York City, it is estimated that there are 2,290 deaths, 1,580 hospitalizations, 546 asthma-related emergency room visits, 1,490 cases of chronic bronchitis, and 46,200 asthma attacks yearly attributable to power plant pollution. The New York City area has also been ranked as one of the top five U.S. metropolitan areas for particulate air pollution. And again, these adverse effects disproportionately affect minority communities. In one study, nonwhites in New York City were hospitalized twice as many times as whites on days when ozone levels were high. Another study found that, of the 23 counties in New York State that fail to meet Federal air pollution standards, 37.7% of them are populated by people of color.
That African Americans and other minorities are disproportionately affected by air pollution in New York is not surprising when considering the fact that the majority of air-polluting power plants in the New York metropolitan area are located in African American and other minority communities. Based on figures from the 2000 U.S. Census, only 12.3% of New York State is identified as being African American, and only 29.4% of the total population is classified as a minority. However, in communities that are predominantly minority, such as Queens, the Bronx, and Brooklyn, there are a disproportionate number of fossil-fuel power plants emitting criteria air pollutants. For example, there are approximately 1,563,400 people of color, 217,247 children living in poverty, and 40,248 children who suffer from pediatric asthma within 30 miles of the Lovett facility, a coal-fired power plant bordering the New York City metropolitan area. In the Bronx, which is 35.6% African American and 88% minority, there are two power plants, Harlem River Yards and Hell’s Gate. In Brooklyn, which is 36.4% African American and 64.2% minority, there are seven power plants, the 23rd and 3rd Plant, Brooklyn Navy Yard, Gowanus, Hudson Ave., Narrows, the North First St. Plant, and Warbasse Cogen. In Queens, which is 20% African American and 63.2% minority, there are six power plants, Astoria, Poletti, Far Rockaway, JFK Cogeneration, Ravenswood, and the Vernon Blvd. Plant. Queens is also ranked among the worst 10% of U.S. Counties in terms of its exposure to
criteria air pollutants, and is one of two city boroughs that violate federal standards. In the Air Quality in Queens County Report, it is stated that:
The concentration of generating capacity in Northwest Queens is exceptionally high for such a densely populated area. In addition, this community includes a high percentage of low-income people and persons of color. These demographics suggest that “environmental justice” concepts and policies should be taken into account when considering options for addressing air quality in Queens and in considering the siting of further sources of air pollution. The steam generating units in Queens are responsible for a large percent of the NOx, SO2, and CO2 emitted in Queens.
In total, there are 24 power plants in the New York metropolitan area, only a handful of which are in areas where minorities do not comprise the majority of the population.
F. No Article X Means Minority Communities Are Vulnerable to Environmental Injustice
In the absence of an Article X power plant licensing law, utilities are siting 79.9-megawatt facilities until a new law is passed. There is some concern, from an environmental justice perspective, that these 'mini' plants will be disproportionately sited in minority neighborhoods. Closure of FitzPatrick due to a failure to relicense the plant because of the WQC Denial will significantly increase the pressure to build more of the little plants, probably in minority communities. Replacing FitzPatrick’s 866 megawatts (MW) of emission free base load electricity will be extremely hard to do.
New York State Department of Environmental Conservation (DEC) issued air pollution control permits in 2001 to the New York Power Authority (NYPA) to allow the construction and operation of six new electric generating facilities in three New York City boroughs and Brentwood, Suffolk County. Permits, known as State Facility permits, were issued for new facilities in the following locations:
Harlem River Yard Plant - East 132nd Street, Bronx, 2 turbines;
Hell Gate - East 132nd to East 134th streets and Locust Avenue, Bronx, 2 turbines;
North 1st Street Plant - North 1st Street and River Street, Brooklyn, 1 turbine;
23rd and 3rd Plant - 23rd and 3rd avenues, Brooklyn, 2 turbines;
Vernon Boulevard Plant - 42-30 Vernon Boulevard, Queens, 2 turbines; and
Brentwood - at the former Pilgrim State Hospital, Brentwood, Suffolk County, 1 turbine.
Although touted as a hedge against blackouts, local communities are screaming environmental racism, particularly in the South Bronx.
G. Lost Production From FitzPatrick Will Be Replaced By Other Emitting Facilities
If generation at FitzPatrick were to be significantly limited or were to cease altogether, the lost electricity would most likely be replaced by other fossil fuel facilities. And as the level of air pollution increases, so do the incidences of death and respiratory and cardiovascular ailments. For instance, in the National Morbidity and Mortality Air Pollution Study (“NMMAPS”), a team of investigators from Johns Hopkins University and the Harvard School of Public Health found, among other things, strong evidence linking daily increases in particle pollution to increases in death in the largest U.S. cities. Links have also been found between fine particle levels and increased hospital admissions for asthma, cardiovascular disease, pneumonia, and chronic obstructive pulmonary disease. Stated bluntly in the Air Quality in Queens County Report, “Epidemiological studies tell us that on days when air pollution levels are high, more people get sick or die.
Based on the above data and studies, it is clear that if FitzPatrick were to be brought offline, forced to close, or if production were limited, the void in electricity production would be filled by power plants that would add a corresponding increase in the rates of asthma and other respiratory diseases, cardiovascular diseases, and even infant mortality in low-income and minority communities that also have a disproportionate number of other types of polluting facilities.
H. The Benefits of FitzPatrick
The FitzPatrick facility, located on the southern shore of Lake Ontario in the Town of Scriba, has a generating capacity of approximately 866 megawatts. The facility provides approximately 17% of the state’s nuclear generation. And, unlike New York’s fossil-fuel burning facilities, FitzPatrick does not pollute the air or add greenhouse gases to the atmosphere.
I. The WQC Denial Will Hinder Fitzpatrick’s Ability to Produce Non-Air-Polluting Electricity
In July 2006, Entergy submitted an application to the Nuclear Regulatory Commission to extend the FitzPatrick license through 2034. FitzPatrick’s owners will have to shut down the plant at the end of 2014 if draft denial of the WQC leads to the rejection of the NRC license renewable. The result will be devastating in terms of the pollution-related health effects when New York’s non-clean burning plants scramble to replace the power lost by FitzPatrick. The bulk of the adverse health effects – including asthma and other respiratory diseases, cardiovascular disorders, and even infant mortality – will be borne by low-income and minority communities. For this reason, AAEA objects to any provision of the WQC for FitzPatrick that imposes any significant limit on the facilities’ ability to generate clean-burning electricity. AAEA is as concerned about the health of fish in Lake Ontario as any other group, but Best Technology Available can be balanced to consider the health needs of fish eggs and the health needs of low-income and minority children.
J. The DEC Failed to Consider Issues of Environmental Justice in the Draft Denial
The process that led to the draft denial of the FitzPatrick is confusing. The DEC originally concluded that the application for the WQC was complete and issued a draft WQC for public comment that incorporated by reference the SPDES permit. Entergy submitted a timely renewal application to DEC on January 27, 2006 and its existing SPDES permit will continue in place in accordance with the New York State Administrative Procedure Act until the final SPDES permit is issued by the DEC. Evidently, the DEC reversal was influenced by an outside challenge just before the deadline for final action. The DEC then based its draft denial on Entergy’s filing of its SPDES permit hearing request stating that it somehow prevented DEC from obtaining necessary information. Yet DEC had already approved the SPDES permit. This process confusion does not bode well for vulnerable communities that rely on the DEC to protect air quality in addition to fish eggs.
In making a WQC determination, as related to BTA in the SPDES Permit, DEC is required not only to attempt to maximize fish protection, but also to minimize or avoid “other impacts … to the ‘maximum extent practicable’ to satisfy SEQR as well as CWA § 316(b).” See also 6 NYCRR § 704.5 (“The location, design, construction and capacity of cooling water intake structures, in connection with point source thermal discharges, shall reflect the best technology available for minimizing adverse environmental impact”) (emphasis added). The DEC issued the Denial without addressing the environmental justice impacts that its decision could entail, particularly the significant adverse impacts that will result from a shift in power production from Fitzpatrick to existing fossil-fuel facilities. The DEC’s failure to consider these “other impacts” violates the SEQRA, 6 NYCRR § 704.5, and renders Denial null and void.
EPA defines Environmental Justice as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, culture, education, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
K. Federal Regulations Are In Limbo and Create Additional Uncertainty in the Process
We are also concerned about uncertainty at the federal level of government regarding cooling water intake structures. This uncertainty poses another potential threat to vulnerable communities to the extent that any permutation will lead to the closure of emission free nuclear power production of electricity. The U.S. Court of Appeals for the Second Circuit vacated in part, and remanded in part, a final rule promulgated by the EPA intended to protect aquatic organism from cooling water intake structures at large, existing power-producing facilities. The Phase II Rule, promulgated pursuant to section 316(b) of the Clean Water Act (CWA), designated a suite of technologies and five compliance alternatives for existing facilities. The Court decision will likely delay implementation of the section 316(b) program for existing facilities because of the uncertainty regarding how EPA will rewrite the rule.
AAEA-NY has an interest relating to the statutes administered by DEC, namely, AAEA-NY seeks to ensure that those statutes are interpreted consistent with the DEC’s policy goal of promoting environmental justice. AAEA-NY also has an interest in ensuring that, when DEC is required by statute or regulation to weigh adverse environmental impacts, it factors environmental justice into the calculation.
L. AAEA submits the following issues for consideration:
(1) Whether the DEC fully considered – as required – all adverse environmental impacts in formulating the WQC Denial for Fitzpatrick, including air impacts on minority communities?
(2) Whether the DEC would have issued an approval had it adequately considered the negative impacts on air quality in low-income and minority communities that will result from any substantial reduction in generation at FitzPatrick?
(3) Whether the failure to consider all adverse environmental impacts in formulating the WQC Denial for FitzPatrick, including air impacts in minority communities, renders the Denial unsupportable?
AAEA-NY’s issues for consideration are substantive, given that they call into question the appropriateness of the DEC’s WQC Denial for Fitzpatrick, raises important public health and environmental justice concerns, and challenges the draft denial compliance with the SEQRA and 6 NYCRR § 704.5 requirement that in issuing a permit (certification), DEC consider all adverse environmental impacts. AAEA-NY’s issues for consideration are also significant because they ultimately call for a major modification to the DEC’s WQC for Fitzpatrick, namely, eliminating those provisions that would result in significant reductions in generation at Fitzpatrick.
Based on the information provided herein, AAEA-NY respectfully requests a reversal of the decision to deny the WQC, and further requests that the DEC consider our recommendations at any adjudicatory hearing that considers testimony and evidence on the issues identified herein.
 Mr. McDonald has been an environmental professional for 29 years and has extensive experience in addressing environmental and energy issues.
 http://www.dec.state.ny.us/website/ej/ejprogram.html. (Last visited Feb. 10, 2004.)
 See Rachel H. Cease, Adverse Health Impacts of Grandfathered Power Plants and the Clean Air Act: Time to Teach Old Power Plants New Technology, 17 J. Nat. Resources & Envtl. L. 157, 158 (2002-2003); Martha H. Keating, Air Injustice, at 4 (October 2002).
 17 J. Nat. Resources & Envtl. L. at 158.
 Id. at 159.
 See Martha H. Keating, Air Injustice, at 3 (October 2002).
 See id. at 4. See also Air Quality in Queens County: Opportunities for Cleaning Up the Air in Queens County and Neighboring Regions, at S-6, Synapse Energy Economics, Inc. (May 2003) (“Air Quality in Queens County”) (“Epidemiological studies tell us that on days when air pollution levels are high, more people get sick or die); Children at Risk: How Pollution from Power Plants Threatens the Health of America’s Children, at 2, Clean Air Task Force (May 2002).
 Allison L. Russell, Urban Pollutants: A Review and Annotated Bibliography, at 3, New York City Environmental Justice Alliance 2000.
 See id.
 See Martha H. Keating, Air Injustice, at 3 (October 2002).
 See Death, Disease & Dirty Power: Mortality and Health Damage Due to Air Pollution from Power Plants, at 24, Clean Air Task Force (October 2000) (“Death, Disease & Dirty Power”).
 See New York’s Dirty Power Plants, Clear the Air – the National Campaign Against Dirty. The Air Quality in Queens County Report states that “New York City … [is] burdened with significant air quality problems” and “[t]he US EPA has determined that the NY metropolitan area … is in ‘severe nonattainment’ for ozone.” Id. at S-5.
 See Martha H. Keating, Air Injustice, at 4 (October 2002).
 See Clear the Air: People of Color in Non-Attainment.
 See Clear the Air: People of Color Living Within 30 Miles of a Specific Coal-Fired Power Plant. Clear the Air, Power Plant Pollution Threatens the Health of New York’s Children (June 11, 2002)
 See Air Quality in Queens County, at S-5.
 All population data compiled from the 2000 U.S. Census.
 Cited in Death Disease & Dirty Power, at 14.