First Energy's Bay Shore Plant Threatens Wildlife

   “FirstEnergy is committed to protecting the environment while delivering the safe and reliable electric service our customers expect and deserve.” So says the website of one of the nation’s leading energy companies.
    While the corporation has a long-term commitment to waste minimization and its Shippingport, PA facility is home to the largest recycling project in North America, this energy provider is ignoring one aspect of the environment.
    Every day, fish are trapped and killed at the FirstEnergy Bay Shore plant in Toledo’s backyard. Bay Shore kills more fish than any other power plant in the state. But what is FirstEnergy doing about it? And what is the state doing about it?

BIG CORP., BIG KILLER

    “Like a baby, they need your help,” says Sandy Bihn of the Western Lake Erie Waterkeeper Association.

    She’s talking about the small fish that are too weak to fight the current of the power plant’s water intake system.

    “But they don’t get help,” Bihn says. “They just die.”

    Every day 650 million gallons of water surge through the intake screens of First Energy’s Bay Shore plant in Oregon, Ohio. Too weak to fight the created current, millions of fish are also pulled in.

    In 2008, the plant released a report that summarized the amount of fish annually caught, and often killed, in its intake system. The study was done at the request of the Ohio Environmental Protection Agency, and the numbers were astounding.

    Picture a fish swimming along its normal breeding-season route, out of the Maumee River and into Lake Erie. Between the mouth of the river and the lake, the suction from Bay Shore’s cooling system is strongest. If the fish is sucked in by the current, yet too big to fit through the plant’s 3/8 inch screen openings, the fish is “impinged” – a term the United States Supreme Court has eloquently defined as “squashing against intake screens.” If the fish is smaller, it is actually sucked through the tiny screen openings and into Bay Shore’s cooling system. This is called “entrainment.”

    Between May 2005 and December 2006, the plant impinged a total of more than 46 million fish. It entrained 208 million fish eggs and over 2 billion small and larval fish. The Western Lake Erie Waterkeeper Association and the Ohio Environmental Council were outraged.

    “Bay Shore, because of its location, is the biggest fish killer in the Great Lakes,” says Sandy Bihn.

    Though there aren’t any recent numbers, the Ohio EPA does estimate that Bay Shore impinges and entrains more fish than any other power plant in the state.

    What we base that on is the fact that the Bay Shore power plant is located in an area that has a very productive fishery compared to other power plants in the state,” says Ohio EPA spokesperson Mike McCoullough. “It’s also based on data collected in the 70s and 80s.”

    In March, the Western Lake Erie Waterkeeper Association and the Ohio Environmental Council petitioned the Ohio Department of Natural Resources (DNR) to fine FirstEnergy for the plant’s fish kills. Yet no fines have been implemented.

    “People have a limit of [catching and keeping] six walleye per day but power plants can kill as many [walleye] as they like?” Bihn shakes her head, with a complete loss for understanding.

    Fisherman who fish for sport can be fined up to $250 and serve up to 30 days in jail if they go over the limit established each year by the Lake Erie Committee, says Kevin Ramsey of the Ohio Department of Natural Resources. They can also be charged a restitution fee of up to $50 per walleye over-the-limit that they catch, and up to $20 per fish for small fish, he adds.

    The Ohio DNR can’t put a limit on fish impinged or entrained at Bay Shore, though. Ramsey explains that those kinds of regulations are in the hands of the Ohio EPA.

    But the fish kill problem is entwined with a variety of factors, making it even more complex. Recent changes to national regulations on cooling water intake systems, like that of the FirstEnergy plant, leave everyone wanting for answers.

PERMIT PROBLEMS

    Water cooling facilities can have huge effects on area water and wildlife by raising water temperatures. For example, the Bay Shore plant uses 650 million gallons daily of lake water for cooling.
“It raises the temperature 10 degrees on the other end (at the point of discharge back into the Lake),” explains Bihn.
    To help regulate the environmental impact of water cooling structures, the Clean Water Act of 1977 mandated that “the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” That portion of the act is referred to as the 316b rule, referencing a subsection of the law.
    To enforce the Clean Water Act, the Environmental Protection Agency issues National Pollutant Discharge Elimination System (or NPDES) permits. Administered at a state level, NPDES permits regulate, among other things, cooling water intake structures.
    For companies building new plants, the 316b rule regarding water intake structures is fairly straightforward. There are national standards and companies can build their facilities around those regulations. But for plants that already exist, the EPA used a cost-benefit model to determine rules and regulations on a case-by-case basis. This helped the EPA work with the plants instead of setting standards too high, which would prove too costly for compliance by older plants.
    Environmental groups, led by Riverkeeper Inc., challenged the cost-benefit strategy of the EPA, holding that to regulate based on a cost-benefit analysis was impermissible under the Clean Water Act. In January 2007, the Federal Second Circuit Court of Appeals agreed and the EPA suspended its 316b rule in July of the same year.
Fast forward to January 2009. The Bay Shore power plant NPDES permit has expired, but because the US EPA had suspended its 316b rule, the Ohio EPA doesn’t have guidelines to use to re-issue the permit.
    “We’re still trying to decide how to move forward with the NPDES permit with regard to the requirements for the cooling water intake structure,” Ohio EPA spokesperson Mike McCoullough says.
    On April 1, 2009, the U.S. Supreme Court reversed and remanded the Second Circuit Appellate court decision, concluding that the EPA permissibly relied on cost-benefit analysis. Now the US EPA has to re-work its already re-worked regulation.
    In the mean time, the Ohio EPA continued to hold off on re-issuing the Bay Shore NPDES permit, waiting to see the re-write of U.S. EPA rules when they are drafted, according to McCoullough.
    But the US EPA doesn’t plan to issue a proposed rule until “next year,” according to US EPA spokesperson Ernesta Jones.
    With that in mind, McCoullough says he thinks the Ohio EPA will probably move forward with the Bay Shore NPDES permit before the national rules are revamped. “We’re hoping it’ll be a matter of months,” he says.
    The reason the Ohio EPA is spending so much time with FirstEnergy on the Bay Shore power plant NPDES permit is because “the problems and the issues (at Bay Shore) are much more complicated than they are with most facilities,” McCoullough explains.
    Because of Bay Shore’s location, the rate of impingement and entrainment is much higher than any other facility in Ohio. The ways of addressing that can be pretty costly, McCoullough says. With the new Supreme Court ruling on cost-benefit permissibility, the Ohio EPA wants to make sure it is requiring something that’s both technically and economically feasible.
    To do this, the agency is working closely with FirstEnergy itself.
    “We’re looking at a number of options [to reduce impingement and entrainment],” says FirstEnergy spokesperson Mark Durbin, “but no decisions have been made.”
    This past spring, FirstEnergy did take some temporary steps to reduce the numbers of impingement and entrainment.
    “From March to mid-May, we actually reduced intake of water by about 40 percent to coincide with spawning season. We have what are called Creveling intake screens (screens to prevent fish from getting in) and we operated those continuously during spring spawning season as well,” Durbin explained.
    Durbin admits that when the 316b rules do eventually fall into place, FirstEnergy will have to reevaluate to see if any permanent changes are necessary to comply.
    One of the changes on the radar would be implementation of a water cooling tower. In water cooling towers, heated water rises and is emitted as water droplets into the air instead of going back into the watershed, explains Bihn of the Waterkeeper Association. Once the heat is released, the newly-cooled water sinks back to the bottom of the tower and can be re-used by the power plant. This process reduces the amount of water used by a whopping 90 percent.
    The cooling towers are the way you get the biggest bang for your buck in terms of reductions and fish kills,” Bihn says.
    Durbin admits that FirstEnergy has not looked into the exact price of building cooling towers. “It’s something that, as we move forward, we would continue to review,” he adds.
    Bihn also mentions a settlement between a power plant in Michigan and state and environmental groups there. The 1996 Ludington Pumped Storage settlement is the largest environmental settlement in Michigan history and the second largest in U.S. history. Out of the settlement was born a trust fund, now called Project Fish and paid for by the plant as retribution for the number of fish it killed, according to the group’s website, projectfish.org. The plant was also ordered to put in a barrier net to restrict the number of fish entering the facility, and the plant is assessed annual compensation payments based on the effectiveness of that net.
Bihn says that because of the pending permit specifics, Waterkeepers, Inc. and other environmental groups have not yet proposed any law suits.
    “We’ll see what happens when this permit comes up,” she adds. “That’s when we’d do the legal work; we would tie any action we would take to that permit.”
    Previous 316b rules did not regulate fish kills. Part of the reason for this is the lack of information.
    “No one has studied [fish killing] for 30 years,” explains Bihn of the Waterkeeper Association.
    While the numbers – millions and billions of fish per year – seem enormous, there’s really nothing to compare those numbers to. What is the percentage of Lake Erie fish killed? We can’t determine, because we don’t have a baseline fish population. While the Lake Erie Committee estimates annually the number of walleye and yellow perch in order to create a catch limit, there is no count of total fish and larvae. And more importantly, there is no count of the spawning population that runs from the Maumee River into Lake Erie, the area where Bay Shore’s water intake intercepts the most fish.
    “There’s a lot of different spawning populations that contribute to the lakewide population,” explains Fishery Biologist Supervisor Jeff Tyzson of the Ohio DNR.
    To help remedy this lack of information, the Ohio DNR Division of Wildlife and the University of Toledo have decided to team up on a new study planned for spring 2010.
    The goal of this study is to “quantify the ecosystem effects of entrainment at the Bay Shore Power Plant,” says Tyson.
    The project will measure the number of larvae exported to Lake Erie from the Maumee River, and help define the percentage of fish entrained by the Bay Shore plant’s water intake system.
    “Fish kills haven’t been re-addressed since the 1977 Clean Water Act,” Bihn notes. She’s referring to the 316b rule and the mandate that power plants must use the “best technology available.”
    Bihn, along with the Western Lake Erie Waterkeeper Association, the Ohio Environmental Council, the Ohio DNR, and the University of Toledo, know that the time to address this issue is past due. Every day  without action adds to the number of fish kills threatening our Great Lakes and its inhabitants.