EPA Delays Release of Proposed Rule On Cooling Water Intake Structures

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The Environmental Protection Agency confirmed March 14 that it is delaying its planned release of a proposed rule that would set technology standards for cooling water intake structures under the Clean Water Act.

In a statement provided to BNA, the agency said the extension will go to March 18, but if there is a new continuing resolution, the agency can have until March 28 to release the proposed rule. In its statement, EPA said the parties have agreed to the extension, but provided no additional comment.

The agency had signed a settlement agreement with the environmental advocacy group Riverkeeper and other groups to propose standards under Section 316(b) of the Clean Water Act by March 14, 2011, and after considering public comments, to take final action by July 27, 2012. In the meantime, permits for existing facilities would continue to include conditions under Section 316(b) developed on a best professional judgment basis.

Reed Super, a New York City-based environmental attorney who represents Riverkeeper, one of the original petitioners in the case, told BNA March 14 that the agency had asked the environmental groups for a couple of additional weeks to propose the rule, and because of the short time period, the groups had no objection.

March 28 Decision Likely.

If another continuing resolution to fund the federal government is passed, as expected, Super said EPA is likely to propose the rule on March 28. He said Riverkeeper had requested that EPA issue the rule by March 18 in the event of a government shutdown, and the agency agreed. The current continuing resolution extends through March 18.

In July 2010, the U.S. Court of Appeals for the Fifth Circuit granted a request from EPA to take back part of a rule on cooling water intake structures relating to existing facilities. The ruling paved the way for the agency to propose a regulation that would combine elements of two rules under Section 316(b) of the Clean Water Act, both of which were challenged in court (ConocoPhillips v. EPA, 5th Cir., No. 06-60662, 7/23/10; 142 DEN, A-13, 7/27/10).

Cooling water intake structures are used by industrial facilities to draw water from natural water bodies for cooling. They can harm or kill aquatic life by entraining small organisms through the plant's heat exchangers and trapping larger fish and wildlife on intake screens.

Section 316(b) of the Clean Water Act requires that the location, design, construction, and capacity of cooling water intake structures “reflect the best technology available for minimizing adverse impact.”

Super said environmental groups “are not reading too much into” the request for a delay. However, he said, they are concerned that a proposed rule could require decisions on a case-by-case basis, rather than setting performance standards.

Such a provision would be “disastrous,” he said, adding that “states can't make these decisions without clear standards from EPA. Many states have proven they can't do it. They don't have the power or expertise.”

Super cited EPA Administrator Lisa Jackson's remarks in a December letter to Congress that the proposal is intended to reasonably accommodate site-specific circumstances and would not be a one-size-fits-all federal mandate.

The planned rule has drawn fire from the electric power industry and from some Republicans in Congress, including Rep. Fred Upton (R-Mich.), now chairman of the House Energy and Commerce Committee. They objected to the potential cost of retrofitting power plants to meet the expected standards.

On Jan. 21, EPA asked the White House Office of Management and Budget for permission to survey the public's willingness to pay for restrictions on cooling water intake structures at power plants and other facilities (24 DEN A-8, 2/4/11).

By Linda Roeder