Power Plants Ask Federal Appeals Court To Review EPA Cooling Water Intake Rule

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By Amena Saiyid

Sept. 8 — A coalition of power plants has joined Entergy Corp. in asking an appellate court to review the Environmental Protection Agency's final rule regulating cooling water intake structures at more than 1,000 factories and power plants. 

In a Sept. 5 petition, the Utility Water Act Group (UWAG) and Entergy asked the U.S. Court of Appeals for the Fifth Circuit to review the final cooling water intake rule that is designed to prevent the trapping of fish and shellfish against screens, called impingement, and the drawing of fish and larvae into cooling water intake towers, or entrainment.

Kristy Bulleit, a Hunton & Williams attorney who represents UWAG, declined to comment on the reason behind the lawsuit. However, UWAG in comments filed July 28 to the EPA on the final cooling water intake rule took issue with “unduly burdensome requirements.”

The power industry group, which represents electric power generation by oil, gas, coal and nuclear sources, had indicated at the time the agency released the rule that it would present “significant operational and compliance challenges.”

The final rule, which was published Aug. 15 and took effect Aug. 29, applies to 544 power plants and 521 factories that withdraw at least 2 million gallons of cooling water per day and use 25 percent of that for cooling purposes. It seeks to limit harm to fish and other aquatic life (79 Fed. Reg. 48,300).

Section 316(b) of the Clean Water Act requires the EPA to set best technology available in National Pollutant Discharge Elimination System permits for power plants and industrial and manufacturing units. This best technology must consider cost and account for the age of the equipment and facilities, the process employed, engineering aspects associated with a particular technology, process changes and other environmental impacts, including energy requirements.

UWAG describes itself as an “ad hoc” group that represents 191 individual energy companies as well as the Edison Electric Institute, the National Rural Electric Cooperative Association and the American Public Power Association.

The joint UWAG and Entergy petition comes on the heels of petitions filed Sept. 5 by the American Petroleum Institute in the U.S. Court of Appeals for the Seventh Circuit and by environmental groups Sept. 2 in the First, Second and Ninth circuits.

“The lawsuits filed by the industry are intended to provide the industry with the opportunity to participate in litigation filed by nonprofits, the outcome of which will have significant impacts on its operations,” said Lowell Rothschild, senior counsel with Bracewell & Giuliani who is uninvolved with either of the lawsuits.

He said the lawsuits also give the power and petroleum industries the opportunity to make arguments on minor modifications to the rule, such as requirements that state permitting authorities provide a draft of the permits to the U.S. Fish and Wildlife Service for review and comment.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

The Utility Water Act Group's petition for review filed in the U.S. Court of Appeals for the Fifth Circuit is available at: http://www.bloomberglaw.com/public/document/Utility_Water_Act_Group_et_al_v_EPA_et_al_Docket_No_1460623_5th_C.