Missouri’s Clean Water Commission agreed Tuesday that environmental regulators were correct to issue a permit allowing the state’s largest coal-fired plant to discharge superheated water into the Missouri River despite environmentalists’ contention the utility operating it should invest in newer technology.
The commission’s vote upheld a determination by the Administrative Hearing Commission that a permit issued to Ameren Missouri for the Labadie Energy Center in 2015 was lawful despite a challenge from the Sierra Club alleging it violated the Clean Water Act.
“After years of litigation, we are pleased the Clean Water Commission affirmed the Department of Natural Resources’ issuance of Labadie’s…permit,” said Brad Brown, Ameren Missouri’s spokesman. “The agency followed appropriate procedures in issuing the permit and the hearing officer held extensive evidentiary hearings where the parties presented their arguments.”
Ameren has operated the Labadie Energy Center, a four-unit coal plant adjacent to the river, since the 1970s. Labadie takes in water from the Missouri River to cool the plant and discharges the heated water downstream.
From the late 1990s until 2015, state environmental regulators at the Missouri Department of Natural Resources allowed it to operate under an expired permit that allows it to occasionally break standards for hot water it discharges into the river.
When DNR issued the new permit in 2015, the Sierra Club appealed to the Administrative Hearing Commission, saying the agency failed to determine the best available technology to minimize the hot water flowing into the river. The environmental group’s attorneys contend following that standard means retrofitting the plant with cooling towers that recycle the water before it goes back into the river.
Environmental groups say the hot water plume disrupts the aquatic environment in the river and jeopardizes the endangered pallid sturgeon. The U.S. Fish and Wildlife Service wrote to DNR last year expressing its concern and recommending enhanced monitoring for the fish, which can be difficult to identify.
The AHC sided with DNR in July, issuing a ruling two years after holding arguments in the case. Members of the state’s Clean Water Commission voted 4-1 Tuesday to uphold the AHC finding.
Tara Rocque, an attorney with the Washington University Interdisciplinary Environmental Clinic, which is representing the Sierra Club, said she was surprised, given the complexity of the issue, that the Clean Water Commission didn’t deliberate and opted instead decided to rule immediately.
“What it means is that Ameren’s Labadie facility is allowed to continue discharging one billion gallons of heated water into the Missouri River each day, doing absolutely nothing to try to mitigate the impact of that thermally-heated water on the river, its ecosystem or the aquatic life within it,” Rocque said.
Rocque said attorneys for Sierra Club were still considering their options, but a possible next step would be taking the case to the Missouri Court of Appeals.
The federal Clean Water Act requires entities that discharge pollutants, including hot water, into bodies of water first obtain permits setting limits and establishing reporting requirements. Those permits are supposed to set limits on discharges based on the best available technology for the industry.
At issue in the Sierra Club’s appeal was DNR’s determination of the best available technology for Labadie.
The environmental group contends cooling towers would be best at Labadie and economically achievable. Doing so would drastically reduce the amount of hot water the plant discharges into the river, minimizing the potential impact on aquatic life, including the endangered pallid sturgeon in the river.
Sierra Club’s attorneys say DNR failed to conduct an analysis of the best available technology before issuing that 2015 permit and later issued an analysis to retroactively justify issuing the permit. According to the group, DNR said it conducted a “mental” analysis of the best available technology for Labadie.
Tim Duggan, assistant attorney general, represented DNR in Tuesday’s proceedings and said the agency did not retroactively justify its decision. He said the DNR employee who wrote the permit was simply showing the work she did before issuing the permit.
“She did all of that work, but it was not required at the time that she fully explain and show all of her homework in the fact sheet,” Duggan said. “She did that after the fact at the encouragement of Ameren so that could be vetted by the public, including Sierra Club.”
Duggan said that the department was seeing no adverse impact on the pallid sturgeon near Labadie but that it had asked for more studies as part of a new permit under consideration now. He said water law is not a “hammer looking for nails.”
“If you do not have a serious problem, you do not have to fix it,” Duggan said.
Ameren’s senior manager of environmental services, Craig Giesmann, said in a recent op-ed that the company was making sure its employees were “being good stewards of the water near our operations.”
“That point of the river has been studied extensively in recent years, and those results show there is no difference in the amount and abundance of aquatic life on the Missouri River upstream and downstream of Labadie,” he wrote.
Ameren’s attorney, Dan Deeb, also denied the charge that DNR retroactively justified the permit.
Deeb told the commission adding cooling towers at Labadie would cost more than $1 billion. He said such technology is exceedingly rare.
The only commissioner to side with environmentalists was John Reece, who said Ameren was not being held to the same standard that applies to wastewater plants situated on rivers.
“I think that Ameren should be held accountable,” Reece said. “They need to limit the heat that they are discharging to the Missouri River.”
The decision comes as DNR considers Ameren’s permit renewal, which would let it continue discharging hot water.
The Sierra Club spoke out against the proposed permit this summer during a public comment session. At that time, their case on the 2015 permit had been pending before the ACH without a decision for two years.
Less than two weeks after the public hearing, the agency issued its decision.
Environmentalists also said Ameren wasn’t following a new Supreme Court ruling they believed required it to obtain permits for coal ash ponds near the river that have been leaching toxic chemicals into groundwater.
But until the permit is issued, Rocque said it was difficult to know whether Tuesday’s decision might forecast how DNR would handle the current permit request.
This article by Allison Kite is published by permission of The Missouri Independent.