A trial in a lawsuit against the only coal plant currently operating in New England began Monday in federal court in Concord.
The lawsuit, brought by the Sierra Club and the Conservation Law Foundation, is a citizen’s enforcement case under the Clean Water Act, which turns 50 this week. Though laws and permits are usually enforced by the government, that act allows citizens to bring up a case in federal court to enforce standards that state or federal officials haven’t.
In this case, the environmental groups say the coal plant has been breaking a permit by putting too much hot water into the Merrimack River, which harms fish and river ecology. They’re asking a judge to determine that there have been permit violations and order the plant to rectify those and change operations going forward.
Lawyers for the plant say it hasn’t violated the permit, based on current information and the steps it’s taken to comply with a more recent permit that is not presently in effect.
“This is a case about the biological integrity of the Merrimack river,” said Reed Super, a lawyer for the environmental groups, during his opening statement.
The power plant has a cooling system to cool down steam that’s used to generate electricity. The system draws up water from the Merrimack, puts waste heat into the water, and then returns hot water to the river. Heat is considered a pollutant under the Clean Water Act.
There are other cooling systems that can reduce the amount of heat that goes back into a water body, but the plant’s owners have previously said an upgrade would cost millions of dollars.
In his opening argument, Super said heat discharges can raise the temperature of a river out of an ideal range for the indigenous wildlife population and into a range more suitable for other species.
Under the plant’s 1992 permit, it’s not allowed to “change the balanced indigenous population” of the water it puts heat into.
Super said the hot water is especially an issue when water levels are low in the river and the plant is operating at full capacity – a situation, he noted, that may become more common as climate change brings hotter and drier summers.
Temperature data used by the environmental groups shows high temperatures have been an issue in the river as recently as this summer, Super said.
The environmental groups are asking the judge to declare that there have been permit violations, order the plant owners to remediate the harm, pay civil penalties and do things differently going forward. Super said the plant should have to alert New England’s electricity grid operator that it can’t operate at full capacity when river flows are low, or should install a better cooling system.
Granite Shore Power owns the plant, which Eversource sold in 2018 as part of long-running efforts to decouple electric utilities and generation plants in New Hampshire.
Wilbur Glahn, a lawyer for Granite Shore Power, said in his opening statement that the plant is operating within limits the Environmental Protection Agency has said are more stringent than the conditions of the 1992 permit at the heart of the case.
In 2020, the EPA issued a permit that would have replaced the 1992 permit – but after a challenge from the Conservation Law Foundation and the Sierra Club, that was remanded, or sent back for review.
Lawyers for Granite Shore Power say they cooperated with the EPA to create the new permit, and have operated under the limits set out in the 2020 permit since it was issued, though they were not required to. Those limits, the defendants say, are stricter than the requirements of the 1992 permit.
Throughout his opening statement, Glahn focused on illustrating how much the plant has reduced operations in the past few years. Now, it runs as a “peaking” plant, burning coal to produce electricity only when demand is particularly high.
The coal plant is committed to providing power for New England’s regional grid operator through at least 2026. Because of their obligation to provide capacity for the grid, Glahn said the plant must “offer in” their power every day.
Glahn also suggested the environmental groups were using the lawsuit to try and shut down the plant, and said the only way to reduce heat going into the river is for the plant to operate less, or not at all.
