Elm Road cooling intake case: The fight continues

Katie Nekola

Earlier this year, Clean Wisconsin celebrated a victory when Dane County Judge Shelley Gaylord ruled that an administrative law judge (ALJ) must reconsider his decision to uphold the water discharge permit for the new Elm Road coal plant (ERGS). Judge Gaylord was very clear: the ALJ should re-decide the question of whether ERGS was a new or existing facility under the Clean Water Act. This is a threshold question that determines what level of environmental protection is required at the plant. In his earlier decision, the ALJ had agreed with WE Energies and DNR that ERGS was an existing facility, even though everything about it was brand new, and completely independent of the adjacent Oak Creek coal plant. DNR relied on a loophole in federal law that was created by the Bush administration for just such situations, when utilities wanted to expand their operations yet not be subject to modern environmental standards.

However, in January of this year, a federal court case closed that loophole, and Judge Gaylord ruled that the ALJ must take that case into account in reconsidering his earlier decision. She also instructed the ALJ to follow the federal case (Riverkeeper II) in other important areas; for example, the Riverkeeper case made it clear that "restoration" or simply restocking the lake with fish was not an adequate substitute for preventing massive fish kills in the first place.

We were surprised to learn that WE Energies had been working behind the scenes with DNR to bypass the judge's orders and the entire judicial process. Although the case was sent back to the ALJ for reconsideration, the utility and the DNR proposed to begin a lengthy "permit modification" process in which the DNR would again classify ERGS as an "existing facility" and they could proceed as though our case and Riverkeeper never happened. Meanwhile, they would continue to construct their open-cycle cooling system, clearly not the "Best Technology Available" as required by the Clean Water Act, a technology that's been banned in other Great Lakes states.

Clean Wisconsin objected to this proposal and, as of this writing, is waiting for a decision. The fight against this enormously destructive cooling intake system could continue for some time. It's prolonged battles like these that make all of us at Clean Wisconsin especially grateful for the support of our members. Those of you who want to take action can call the DNR and remind them that it's their job to implement and uphold the Clean Water Act, not to make it easier for utilities to damage Lake Michigan. For more information, please call Katie Nekola at (608) 251-7020 extension 14.