POWER August 2012 - 23

Proposed Cooling Water
Rule's Ripple Effects
By Angela Neville, JD
T
he U.S. Environmental Protection Agency (EPA) has a long
history of making waves with the electric power industry
because of its efforts to regulate the way thermal power
plants construct and operate their cooling water intake structures
(CWIS). These structures divert billions of gallons of water
into power plants' cooling systems and can injure or kill billions
of aquatic organisms.
The EPA's mission is to enforce Section 316(b) under the Clean
Water Act, which requires facilities to adopt the best technology
available (BTA) to minimize adverse environmental impacts
from fish being drawn into CWIS (known as entrainment) or being
trapped against screens at the front of an intake structure
(known as impingement), where fish may be harmed or killed.
EPA's Possible Shift to a More Flexible Rule
For years industry representatives have complained that the EPA
was too rigid about considering more cost-effective CWIS options
suggested by power plant operators. Now the agency appears to
be moving to a less hard-line interpretation of Section 316(b)'s
BTA requirement for facilities that operate CWIS.
On May 31, the EPA posted a Notice of Data Availability (NODA) in
advance of forthcoming regulations that signals the agency may provide
more BTA options. The NODA presents a summary of the significant
new information and data that the agency has received since its
April 2011 proposal was released as well as a discussion of possible
revisions to the final rule that the EPA is now considering. This rule
covers approximately 670 power plants, according to the EPA.
In its April 2011 proposed rule, the EPA recommended case-bycase,
site-specific determinations of BTA to prevent entrainment,
but it appeared to favor the installation of traveling screens as
the uniform national BTA standard for preventing impingement.
Traveling screens can be costly and challenging to install, depending
on the size of the facility and site conditions.
In contrast, the NODA provides several alternatives to this
one-size-fits-all approach to BTA used for dealing with impingement,
including these:
■ In defining BTA, the new regulations may permit a facility to
adopt " any technology it chooses so long as it will achieve the
required impingement limitation. " The EPA is also considering
giving credit for impinged fish survivability and for fish that a
facility excludes from becoming impinged in the first place.
■ The EPA may also establish a " de minimis " impingement category
that would effectively eliminate BTA requirements for
facilities with very low impingement rates.
■ The EPA is considering whether to allow establishment of impingement
controls on a site-specific basis, either in all cases
or limited to those circumstances in which the facility demonstrates
that the national controls were not feasible. Under
such an approach, rather than meeting a specific, predeter24
mined
standard, a facility could seek a site-specific BTA for
both entrainment and impingement mortality.
■ The EPA is suggesting a new " streamlined " regulatory process
for facilities that simply opt to employ modified traveling
screens with fish returns, which the agency considers to be
preapproved BTA. In this case, as long as the owner or operator
of a facility complies with the specified operational conditions,
the impingement mortality limitations would be deemed
to have been met and the owner or operator wouldn't have to
conduct any biological monitoring to show compliance.
Mixed Responses to the EPA's Recent Actions
In the wake of the EPA's NODA, many industry critics applauded
the agency's attempt to take a more flexible approach to regulating
CWIS. For example, the Edison Electric Institute (EEI), a
long-time critic of the EPA's CWIS rule, commented that it was
" encouraged " by the agency's openness to receiving feedback
from the regulated community. The EEI is the association of U.S.
shareholder-owned electric companies whose members represent
approximately 70% of the U.S. electric power industry.
" The NODA incorporates new information EPA received in comments
and during power plant site visits and seeks public comment
on vital concerns to the utility industry, " EEI President
Thomas Kuhn said on June 1. " These issues must be fleshed out
and appropriately addressed as the administration works toward
finalizing a rule this summer that protects aquatic life in a flexible
and cost-effective manner. "
Yet the EEI denounced the results that the EPA recently released
from its " willingness-to-pay " survey, which is intended to determine
the so-called non-use benefit of the CWIS regulation. In the case
of the proposed CWIS rule, that would be the price that people hypothetically
would assign to having a healthy fish population from
which they would gain no direct benefit. The EPA stated it would take
the survey into consideration in drafting the final rule.
" The very premise of the survey is misleading to the public, "
Kuhn said. " It infers without any solid justification that improvements
in fish populations and aquatic ecosystems can result from
regulating cooling water intake structures. "
Moving Beyond the Cross Currents
The U.S. power generation industry needs a sensible Section
316(b) policy that balances economic needs with protection of
our natural resources. The EPA should enact a CWIS rule that is
based on demonstrable costs and benefits. The agency needs to
consider both the costs borne by power plants to comply with
316 (b) permits along with the economic benefits of environmental
protection. Hopefully, the new rule will encourage utilities to
find and use available, affordable technologies that prevent unnecessary
fish kills and damage to the environment. ■
-Angela Neville, JD is POWER's senior editor.
www.powermag.com
POWER | August 2012
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POWER August 2012

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