EPA Cooling Water Intake Rule
Key Development: EPA postpones issuing cooling water intake final rule
by one year.
Potential Impact: The rule, if finalized, could affect more than 1,000
What's Next: EPA would have to issue the final rule by June 27,
By Amena H. Saiyid
The Environmental Protection Agency said July 24 it will not issue a final
rule to regulate cooling water intake towers at power plants and other
industrial facilities until June 2013, almost a full year after the deadline set
out in a settlement reached with environmental groups in 2010 (Riverkeeper v.
Jackson, S.D.N.Y., No. 93-Civ-0314, modified settlement agreement
The postponement of the final rule to June 27, 2013, is designed to give the
agency more time to analyze the comments that it received in response to the
recent release of additional data related to the rule.
“The extension provides the agency ample time to complete its analysis of
public comments, data and options prior to finalizing the rule, which EPA hopes
to do as expeditiously as possible,” the agency said in a July 24 statement.
The extension of time is outlined in amodified settlement
agreement that EPA reached with the environmental advocacy group Riverkeeper
on July 17.
Under the original settlement with Riverkeeper, the Natural Resources Defense
Council, and other environmental groups, EPA agreed to propose standards under
Section 316(b) of the Clean Water Act by March 14, 2011, and to take final
action by July 27, 2012. The agreement was filed in the U.S. District Court for
the Southern District of New York.
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.
EPA issued the proposed rule in March 2011.
As proposed, the rule would require facilities to obtain National Pollutant
Discharge Elimination System permits that reflect the best available technology
in the design, location, and construction of cooling water intake towers to
minimize impingement (trapping of fish against intake screens) and entrainment
(drawing of fish into the cooling water system).
It would require impingement-prevention controls for existing facilities that
withdraw at least 25 percent of their water for cooling and have a design intake
flow of 2 million gallons or more per day. Entrainment controls would be based
on site-specific determinations, which would include studies and public input
(76 Fed. Reg. 22,174; 40 C.F.R. Parts 122 and 125; 61 DEN A-8, 3/30/11).
EPA has estimated the proposed rule would cover about 1,260 existing
facilities--about 670 power plants and approximately 590 factories--that
withdraw at least 2 million gallons of cooling water per day.
Under the proposed rule, new units at existing facilities would be required
to use closed-loop cooling towers, which are already required for new
Steve Fleischli, NRDC senior water attorney, told BNA July 24 that the
proposed rule was weak because EPA did not require existing facilities to use
closed-loop cooling towers, which he said would have reduced water withdrawals
93 percent-98 percent and minimized fish kills significantly.
“We think EPA needs more time to get this right. The proposal they put out
last year was so bad that time can only help them to review all the information
in the record and improve upon it,” he said.
The most recent release of data related to the rulemaking came in June, when
EPA made available information from studies that documented fish kills due to
industrial cooling water intakes (77 Fed. Reg. 34,315; (106 DEN A-9,
House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and Energy
and Power Subcommittee Chairman Ed Whitfield (R-Ky) remained skeptical of EPA's
announcement of the postponement.
In a July 24 statement, the two lawmakers said, “Today's announcement is an
acknowledgement that President Obama's EPA is regulating too much too fast and
that there are flaws in the underlying proposed rule. Pressure from Congress and
the public, along with the threat of looming litigation, has forced the agency
to reconsider its action.”
Terming the postponement a “stay of execution” that is good news for jobs,
the lawmakers said, “this fight is only delayed a year, it is not over.”
The modified settlement agreement is available at http://op.bna.com/env.nsf/r?Open=jsun-8whvc8.