Update on Blue Ridge Environmental Defense League v. the Commonwealth of Virginia
Update on Blue Ridge Environmental Defense League v. the Commonwealth
of Virginia
In the Circuit Court for the City of Richmond
Case No. 07-6083
The ruling of the Circuit Court of the City of Richmond was short and
to the point: “Virginia law requires regulation of Dominion’s thermal
pollution discharge because the exception for waste treatment simply
doesn’t apply here.” (Court Transcript, February 20, 2009) With this
ruling, a decades-old violation of the law was ended. The impact of
the decision could benefit the many thousands of people who use the
lake annually.
Dominion’s permit violated the law. In 2007 the Virginia State Water
Control Board approved a permit for Dominion Virginia Power to
discharge hot water from its North Anna nuclear power plant into Lake
Anna. The permit was illegal for several reasons.
First, under the US Clean Water Act Virginia must protect water
quality of the lake, but the state failed to limit hot water
discharges flowing from the North Anna nuclear reactors directly into
Lake Anna. .
Second, heat is a pollutant and the maximum water temperature in
cooling lakes is set by federal law: 89.6 degrees-F. Lakeside
residents report that water temperatures reach dangerous levels in the
summer, as high as 104 degrees-F. The Blue Ridge Environmental
Defense League and others have documented the serious harm to Lake
Anna caused by excessive heat levels.
Third, the state water board applied the wrong law and analysis in
concluding that part of Lake Anna was entitled to an exemption for
waste treatment facilities. Dominion can no longer rely upon this
error to exceed water quality standards at Lake Anna.
Finally, the state water board violated federal law when it applied a
less protective Virginia law. The granting of federal authority to
any state to enforce the Clean Water Act and issue permits comes with
a floor below which no state may go. Virginia’s environmental
agencies are no exception.
Dominion tried to argue that since it built the dam years ago, it
should be able to do whatever it wants with the “hot side” of the
lake. But it does not matter who created the lake. According to the
court, Lake Anna is public “waters of the United States” and is
governed by the Clean Water Act. It does not matter that the permit
has been granted many times before. Committing an error more than
once does not justify the original error. What matters is that
Virginia is bound to enforce water quality standards. These standards
include the limitation of heat pollution to all of Lake Anna.
On June 8, 2009, the Circuit Court of the City of Richmond, after a
review of the record and the law, concluded “that the [State Water
Control Board’s] decision is ‘not in accordance with the law.’” This
was the second time the court ruled against Dominion-Virginia Power
and in favor of Blue Ridge Environmental Defense League. The review
was prompted by Dominion’s motion to have the court reconsider its
February decision in favor of BREDL. In her written order, the judge
quashed Dominion’s attempt to use Ohio Valley Environmental Coalition
v. Aracoma Coal Company to overturn the League’s victory.
On October 7, 2009 the Circuit Court entered its Final Order.
Dominion’s permit is now set aside and the Virginia State Water
Control Board will have to evaluate the adverse impacts of hot water
discharges to Lake Anna from two nuclear reactors. The board will
have to bring the permit into compliance with the law.
Armed with the Richmond Circuit Court’s decision, Virginia’s
Department of Environmental Quality and the State Water Control Board
have the opportunity to improve conditions at Lake Anna. Instead,
they have decided to support Dominion and fight the ruling in court.
On December 22, 2009, Dominion-Virginia Power and the Commonwealth of
Virginia filed their respective briefs in the Virginia Court of
Appeals. In their appeal, the state and the power company rehash much
of their original arguments about cooling ponds and plead that the US
EPA should have authority in such matters. The Blue Ridge
Environmental Defense League is mounting a vigorous defense of the
circuit court’s decision. We will continue our campaign to end
Virginia’s breach of the law, to protect public health and to improve
environmental quality.
Dominion’s proposal to add a third nuclear reactor to the North Anna
plant is not directly affected by the Court’s decision; it was not
part of the lawsuit. But in a separate proceeding, the Blue Ridge
Environmental Defense League has also intervened in the Nuclear
Regulatory Commission’s licensing of North Anna Unit 3 (Docket No.
52-017, Combined Operating License). However, this question is
inescapable: If two reactors on Lake Anna strain its ability to
provide enough cooling water, what would a third reactor do? In
response to water quality problems, Dominion has already trimmed its
proposal by eliminating its plans for a fourth unit.
The reactor technology selected for its third reactor has become an
albatross for the first investor-owned utility to apply for a
construction and operating license. How much extra expense are
taxpayers and ratepayers willing to pay for? As a result of
Congress’s 2005 Energy Policy Act, taxpayers will guarantee up to 80%
of Dominion’s construction costs. The price tag for a new nuclear
plant ranges as high as $12 billion. The handwriting is on the wall:
“independent studies have concluded new nuclear power is not
economically competitive.” (Business Risks and Costs of New Nuclear
Power, Craig A. Severance, CPA – January 2, 2009)
January 6, 2010
Louis Zeller, Science Director
Blue Ridge Environmental Defense League
PO Box 88
Glendale Springs, NC 28629
BREDL@skybest.com
(336) 982-2691 office
(336) 977-0852 cell
http://www.BREDL.org
