Apr 15 - McClatchy-Tribune Regional News - Patricia Daddona The Day, New London, Conn.

The U.S. Supreme Court on Monday agreed to hear arguments on how costs influence the selection of the best methods for equipping power plants to minimize the killing of marine life.

Millstone Power Station owner Dominion, though not a party to the federal case (Riverkeeper II v. EPA) that prompted the appeal, could be affected by the outcome. Dominion's two active reactors at the Millstone complex suck approximately 2.7 billion gallons of water a day from Long Island Sound into water-intake structures used to cool exhaust from turbines.

The Environmental Protection Agency and the states regulate the cooling process and the impact on the environment through federal permits for reactors and other types of power plants.

Last November, New York City's 2nd U.S. Circuit Court of Appeals ruled that companies must adopt the best technology available for avoiding impacts on aquatic life, and determined that a comparison of costs versus benefits could not be used in choosing the appropriate technology.

However, a cost-effectiveness analysis could be used, the court ruled, if a company could show that a cheaper technology came close to the best technology in minimizing harm inflicted on aquatic life by cooling-equipment processes.

The power industry would prefer to keep the "cost/benefit" analysis provision in place.

On Monday, justices consolidated three related cases and ordered a one-hour hearing, but have not yet set a hearing date, according to the Supreme Court's Web site.

In appealing the "cost/benefit" aspect of the cases, attorneys for Entergy Corporation, one of several petitioners in the industry, questioned whether the EPA has the authority to compel retrofitting of existing plant technologies to accommodate improved but costly cooling methods.

The process of retrofitting power plants with cooling towers and other expensive technology "would be disruptive of the nation's electric supply and ... could cost billions of dollars annually," Entergy stated in its legal brief. The 2nd Circuit decision grants that authority, but it conflicts with existing appeals-court case law, lawyers argue.

Entergy also challenges the 2nd Circuit's decision to grant deference to the EPA on the matter, citing split legal rulings, as well as the 2nd Circuit's "rigidly defined and wholly manufactured 'cost effectiveness' test."

Connecticut Rep. Terry Backer, D-Stratford, who heads up Soundkeeper, a group dedicated to protecting Long Island Sound, said in a statement he is "confident that the court will find the EPA must put the public fisheries resource above the private profits of the energy companies."

Millstone is scheduled for a June 17 public hearing before the state Department of Environmental Protection on its proposed permit renewal. The permit calls for Dominion to study cooling alternatives, including costly cooling towers, and report back to the DEP in 2012, three years after the permit is likely to be renewed.

Soundkeeper was a party to the Riverkeeper II v. EPA case.