A federal judge has ruled in favor of the Merrimack Generating Station in a 2019 lawsuit filed by the Sierra Club and Conservation Law Foundation against the company that owns the plant, Granite Shore Power, claiming it polluted the Merrimack River with heated wastewater and violated a permit from the Environmental Protection Agency.
Merrimack Station, located on the banks of the Merrimack River in Bow, is one of New England’s oldest coal-fired power plants. The station draws about 287 million gallons of water per day from the river, heats that water as a result of its cooling process, and discharges the water back into the river at temperatures that often exceed 90 degrees Fahrenheit, environmentalists claim in court documents.
CLF and the Sierra Club sued to force Granite Shore to live up to the terms of its 2016 EPA permit, specifically the limitations on heated water it can discharge into the Hooksett Pool, a roughly 6-mile, shallow, slow-moving stretch of the Merrimack River upstream from the Hooksett Dam.
CLF experts argued the plumes favored a warm-water fish over a more balanced fish population since 2018, when Granite Shore began running the plant.
In filings, Granite Shore said the environmental organizations have no facts to support claims about blocked fish passages, that the balance of the indigenous fish population has been altered, or that state and federal water quality standards are violated.
CLF and Sierra Club asked Judge Joseph La- plante to order Granite Shore to operate according to the terms of its permit. They also wanted fines levied, which would amount to nearly $60,000 for each day of violation.
The case was initially filed in 2019, with lawyers for both sides participating in a bench trial in October 2022.
This month, Judge Laplante ruled in favor of the coal plant, saying the burden of proof falls upon the Sierra Club and Conservation Law Foundation, and their evidence “falls far short of a preponderance” necessary.
“In sum, the NHDES certification, along with the defendants’ evidence of compliance with the 2020 Permit requirements, provides some convincing evidence that the defendants are not violating the state water quality standards,” Laplante writes. “The plaintiffs’ evidence of violations of state water quality standards is significantly less persuasive than the above proof of compliance. The plaintiffs’ evidence of the station’s interference with fishing opportunities is also unconvincing.”
For example, Laplante writes, the EPA found that as of 2013 “the proportion of cool water to warm water species in the Hooksett Pool was “comparable to the community that existed in the 1970s” and the Hooksett and Garvins Pools had “very similar proportions of warm water and cool water species,” and 2010-13 fisheries data did not demonstrate “a decreasing trend in abundance for cool water species.”
Both CLF and the Sierra Club said they are disappointed and are weighing next steps.
