POWER February 2013 - 48

COOLING WATER MANAGEMENT
A Moderating Tone from the EPA
on 316(b)?
Final water intake structure rules from the EPA expected this June suggest the
agency may be listening to industry and even moderating its tone. Stretch
goals as part of the Section 316(b) rule are likely, but overall the rule may
prove more reasonable than many expected.
By David Wagman
T
he U.S. Environmental Protection
Agency (EPA) this June is expected to
release final rules covering water intake
structures at existing power plants and
large manufacturing facilities in an effort to
address injury and mortality among aquatic
life that can become trapped on water intake
equipment (impinged) or sucked into the
plant itself (entrained).
It's been a long, sometimes tortuous road
to reach this point, and the June milestone
seems unlikely to mark the end. Litigation
once the final rule is published seems likely
to prolong the odyssey. And what an odyssey
it's been: The EPA first proposed rules
under Section 316(b) of the Clean Water Act
(CWA) in April 1976. During the nearly 37
years since then, rules variously have been
withdrawn, ignored, rewritten, remanded by
court order, and rewritten again and yet again
(see the sidebar " 35 Years and Counting: The
Making of 316(b) " ).
Careers have begun, flourished, and ended
during this time span. John J. Novak, executive
director of environmental issues at the
National Rural Electric Cooperative Association,
was a student at Manhattan College in
the 1970s and recalls activists coming to campus
to drum up support for efforts to save the
Hudson River's striped bass population from
water intakes at the Indian Point nuclear station.
Russ Baker, manager of environmental
regulatory affairs at the Omaha Public Power
District (OPPD), said the unfinished 316(b)
rules have been a perennial issue throughout
his 25-year career at the utility. And in July
2009, the Electric Power Research Institute
honored former Alden Research Laboratory
President Ned Taft with a lifetime achievement
award for his decades of work on water
intake technology, some of it developed to
comply with 316(b).
The final rule's publication may do more
than simply close this latest chapter in EPA
rulemaking. The rule also may offer an indication
of how the agency may deal with the
power industry during the second Obama ad48
ministration.
Perhaps surprisingly, multiple
industry sources interviewed for this article
said they consider the draft 316(b) rule to be
less onerous and more reasonable than first
feared.
The rule-making appears to be headed toward
incorporation of technology-based rather
than performance-based standards, said
John Burnett, senior environmental scientist
and 316(b) practice leader with engineering
firm HDR. That's an important distinction
because it may mean a facility can consider
itself compliant once it installs equipment
that the EPA has identified as appropriate.
This alone would make the rulemaking a
" hugely positive development for industry, "
Burnett said. " I don't think industry would
ever say [the rule is] industry-friendly, but
it's so far from industry's worst case that it
can almost be acceptable. "
Gregory Allen, director of environmental
and engineering services at Alden Research
Laboratory said that although portions of the
draft rule may remain " burdensome " and that
stretch goals seem likely, " all in all, the rule
is a reasonable approach to addressing impingement
and entrainment. "
Novak said that " clearly, with respect to
entrainment, that portion of the proposed
rule is positive " because it relies on a
case-by-case analysis by local permit writers
and not on a one-size-fits-all federal
mandate. On the issue of impingement, he
said NRECA has " some problems with the
numerical standards " as they would apply
to members' 30 GW of coal and nuclear
capacity, and his trade group has asked the
EPA for more flexibility. " For the most
part, we'll be OK, " he said.
And Seth Jaffe, a partner in the Foley
Hoag law firm and coordinator of its Environmental
Practice Group, said " what EPA
is doing is a delicate balancing act. " While
not ceding its rulemaking obligation, Jaffe
said agency staff-or at least its water regulators-seem
to be listening to the regulated
community, including the power industry,
www.powermag.com
where possible on 316(b). As evidence, he
said the agency could have yielded to pressure
from environmental groups to mandate
closed-cycle cooling for entrainment in its
2011 draft rulemaking. Instead, Jaffe said the
EPA " truly has been persuaded by the regulated
community that it's not worth it. " In the
draft rule, the EPA left it up to local permitting
authorities to determine whether or not
best technology available (BTA), including
closed-cycle cooling, is required.
On that point, OPPD " would much rather
work with the local jurisdiction than the EPA
at headquarters " or even at the regional level,
Baker said. " It's more relevant to work with
the local jurisdiction. "
But at least one environmental group at
the forefront of efforts to push the EPA to act
on 316(b) is dissatisfied with the agency's
draft. Reed Super, attorney for New York-
based Riverkeeper, said the 2011 draft rules
are " worse " than those proposed in 2004 during
the George W. Bush administration. He
said sections pertaining to entrainment represent
" a complete punt by EPA " because they
rely on state permitting agencies to consider
BTA on a case-by-case basis. When asked by
POWER whether the draft 316(b) rules on
water intake structures face legal challenge,
Super said, " I don't think any major rulemaking
from EPA is litigation free. "
Indeed, one point where environmental
groups may find a strong legal position to
challenge the final rule could be related to
determining " non-use benefits, " itself something
of a black box. In essence, the EPA last
spring asked the public to comment on the
societal value of protecting fish and other
aquatic animals. It's a different measure than
placing a dollar value on commercial and
recreational fishing, which is fairly straightforward
by comparison. Instead, determining
non-use benefits asks the public to comment
on how much value there is in having fish as
part of the ecosystem. The question has the
potential to spark responses akin to " save the
whales " or " help the polar bears. " If a high
POWER | February 2013
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POWER February 2013

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