EPA Pushes Back Final Cooling Water Rule To June 2013 Under New Settlement

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 industrial plants.

What's Next: EPA would have to issue the final rule by June 27, 2013.

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 7/17/12).

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).

Controls to Prevent Impingement.

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 facilities.

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.

Data Released in June.

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, 6/4/12).

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.”

By Amena H. Saiyid  

The modified settlement agreement is available at http://op.bna.com/env.nsf/r?Open=jsun-8whvc8.