On March 28, 2011, the Environmental Protection Agency (“EPA”) published a new proposed cooling water intake rule for existing power plants and manufacturing facilities to be implemented through National Pollutant Discharge Elimination System permits. EPA acted pursuant to a settlement with environmental groups resolving two lawsuits brought against EPA in 1993 and 2006 alleging the Agency’s failure to issue regulations implementing Section 316(b) of the Clean Water Act.
Clean Water Act Section 316(b) requires that the location, design, construction and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. The proposed new rule is aimed at reducing fish impingement and fish entrainment at cooling water systems and applies to roughly 1,260 existing facilities that withdraw at least 25 percent of their water exclusively for cooling purposes and have a design intake flow of greater than 2 mgd.
Covered facilities will be required to reduce fish impingement by either monitoring to show specified fish and shellfish mortality standards have been met or demonstrating that the intake velocity meets specified design criteria. Technologies to meet the impingement requirements will have to be implemented within 8 years of issuance of the final rule. In addition, the proposed rule establishes site-specific requirements for reducing fish entrainment under which certain facility owners must undertake a public study and comment process to develop appropriate mortality-reducing technology implementation at the facility. The rule requires closed-cycle cooling (cooling towers), or equivalent low-mortality designs, for new units at existing facilities to reduce entrainment.
EPA estimates the proposal will save approximately 615 million fish and shellfish annually at a cost to industry of around $384 million per year. The rule drew sharp criticism from some environmental groups unhappy with the amount of discretion the rule allows state regulators in implementing site-specific requirements.
EPA will conduct a 90 day public comment period and must take final action on the proposal by July 27, 2012 under the terms of the settlement agreement.