POWER February 2013 - 49

COOLING WATER MANAGEMENT
societal value for aquatic life can be established
and included in the final rulemaking,
then the benefit side of any cost-benefit analysis
may go up. This could potentially expand
the range of impingement and entrainment
mitigation measures that a regulatory body
could consider reasonable to require. One
unknown at present is the extent to which the
EPA may include a determination of non-use
benefits when the final rule is published in
June. The non-use benefits argument might
be a " silver bullet " for environmental advocates
to achieve the equivalent of a closedcycle-cooling
mandate for existing facilities,
said Burnett. " It's clear it could be a strong
area of litigation if EPA builds that into the
final rule. "
The Story So Far
Elected federal officials began to express
concern about the loss of aquatic life apparently
due to water intakes as far back as
the 1960s. Senator Edmund S. Muskie (DMaine)
was a leading proponent of federal
environmental action and was instrumental
in Congress passing both the Clean Air
Act (1970) and the Clean Water Act (CWA,
1972). Concerns over water withdrawals
manifested themselves in the CWA's Section
316(b), which is the act's only portion that
addresses the condition of water that is withdrawn
from a source rather than discharged
into a stream, river, lake, or estuary.
The EPA first promulgated regulations to
implement Section 316(b) in 1976. Some 58
utilities challenged the initial rules in 1977 on
a publishing technicality, and the U.S. Court
of Appeals for the Fourth Circuit sent the
rules back to the EPA. The agency withdrew
the rules but left in place a provision directing
local permitting authorities to determine
BTA for each facility on a case-by-case basis.
That approach was adhered to inconsistently
through the 1980s. Following Bill Clinton's
election as president, however, Riverkeeper
filed suit to force the EPA to write and adopt
formal rules in accordance with the CWA.
The EPA entered into a consent decree in
1995 setting a schedule for taking final action
on regulations to implement Section 316(b).
The consent decree broke the rulemaking
into three phases. In 2001, the EPA published
a Phase I rule covering new facilities. In part,
this rule mandated closed-cycle cooling for
new facilities. The U.S. Court of Appeals for
the Second Circuit generally upheld the rule
in a lawsuit but tossed out provisions that
would have allowed aquatic habitat restoration
to meet the requirements of the rule.
In 2004, the EPA published a Phase II
rule applicable to existing power plants.
Following a legal challenge, the U.S. Second
Circuit Court of Appeals sent back numerous
aspects to the EPA, including its
decision to reject closed-cycle cooling as
BTA for existing facilities. The EPA said
35 Years and Counting: The Making of 316(b)
April 1976-The EPA first promulgates
regulations to implement Clean Water Act
Section 316(b).
1977-58 utilities challenge the rules
on administrative issues. U.S. Court of Appeals
remands the regulations, and by 1979
the EPA withdraws them. Instead, permitting
authorities may determine case-bycase
best technology available (BTA).
January 1993-Environmental groups
file a complaint that the EPA failed to issue
regulations related to Section 316(b).
1995-The EPA enters consent decree
setting schedule to implement 316(b).
December 2001-The EPA publishes
Phase I rule for new facilities.
2004-The EPA publishes Phase II rule
for existing power plants with design intake
flows >50 mgd. Based on cost-benefit
analysis, the EPA rejects mandatory
closed-cycle cooling as BTA. U.S. Court of
Appeals rejects certain Phase I provisions
in Riverkeeper v. EPA.
February 2013 | POWER
June 2006-The EPA publishes Phase III
rules for offshore oil and gas facilities. Determines
that in the case of electric generators
with intake flows <50 mgd, National Pollutant
Discharge Elimination System directors
may use best professional judgment on a
case-by-case basis.
2007-In the Riverkeeper II decision,
U.S. Court of Appeals concludes that costbenefit
analysis is not a proper consideration
in defining BTA.
April 2009-U.S. Supreme Court considers
a single issue in Entergy v. Riverkeeper
and rules the EPA may balance
costs and benefits in 316(b) rulemaking.
July 2010-U.S. Court of Appeals upholds
Phase III rules and remands existing facility
section to the EPA for further rulemaking.
April 11, 2011-The EPA publishes its
draft final rule.
July 2012-The EPA and Riverkeeper
agree to extend the final rule publication
deadline to June 27, 2013
www.powermag.com
it had justified its decision to reject such
a mandate in part based on cost-benefit
considerations. But the Second Circuit
concluded that comparing the costs and
benefits of closed-cycle cooling was not
a proper factor to consider in determining
BTA. The U.S. Supreme Court in 2008
agreed to review an appeal of the lower
court decision but limited its review to a
single issue: whether or not Section 316(b)
authorizes the EPA to balance costs and
benefits. In April 2009, the Supreme Court
ruled in Entergy Corp. v. Riverkeeper Inc.
that it is permissible for the EPA to consider
costs and benefits in determining
BTA to minimize adverse environmental
impacts under 316(b). The court left it to
the EPA's discretion to decide whether and
how to consider costs and benefits, and
sent the rule back to the Second Circuit.
The EPA asked the lower court to return
the rule for further review.
(In 2006, while all this was going on, the
EPA published a Phase III rule that established
requirements for new offshore oil and
gas extraction facilities.)
The 2011 Draft Rule
The Supreme Court's 2009 decision allowing
cost-benefit analysis opened the door for
the Obama administration's EPA to reconsider
the Phase II requirements that were
written during the Bush administration. On
April 11, 2011, the EPA published its proposed
final rule to establish requirements
under Section 316(b) of the CWA for all
existing power generating facilities and existing
manufacturing and industrial facilities
that withdraw more than 2 million gallons
of water per day (mgd) and use at least 25%
of that water exclusively for cooling purposes.
The rules would be implemented through
National Pollutant Discharge Elimination
System (NPDES) permits and would establish
national requirements for the location,
design, construction, and capacity of cooling
water intake structures by setting requirements
that reflect BTA for minimizing
adverse environmental impact. At least two
states have proposed more stringent rules
for cooling water use (see sidebar " State Actions
Related to Cooling Water Use " ).
The EPA in its rulemaking said that power
plants and manufacturers withdraw large
volumes of cooling water on a daily basis.
One result is that fish, eggs, and larvae may
be trapped on water intake screens or sucked
into a plant's water system. Both outcomes
can injure and kill aquatic life. The EPA said
impingement occurs when organisms are
trapped against the outer part of an intake
structure's screening device. The force of the
intake water traps the organisms against the
49
http://www.powermag.com
POWER February 2013

Table of Contents for the Digital Edition of POWER February 2013
