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.

The 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 During the nearly 37 years since then, rules variously have been withdrawn, ignored, rewritten, remanded by court order, and rewritten again and yet again (see the sidebar “35 Years and Counting: The Making of 316(b)”).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 administration. 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, 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 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 closed-cycle-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 (D-Maine) 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 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 screen and they are unable to escape. Some organisms may pass through the screening system and the intake structure and travel through the entire cooling system including pumps, condenser tubes, and discharge pipes. This is referred to as entrainment, and it can lead to mortality rates that sometimes approach 100%.

But just because a power plant withdraws water from a river, lake, or estuary doesn’t mean it has a measurable impact on aquatic life. For example, Ron Stohlmann, lead mechanical/civil engineer with OPPD, said a 2008 test of a Beaudry water intake protection screen at the utility’s 650-MW, five-unit North Omaha Station on the Missouri River had to rely on “fish interdiction” to increase the number of fish in front of the screen to test its effectiveness. In other words, power plant personnel had to bring in fish from elsewhere in the river to successfully conduct the tests. “The reality is our intakes aren’t impacting fish populations,” Stohlmann said. “The proof is we had to go get fish to find an adequate sample for testing.” He said the tests validated earlier studies concluding that the station’s water intake structures caused little if any impingement or entrainment. Indeed, the EPA said that few if any studies exist that quantify impingement and entrainment at facilities that withdraw less than 100 mgd. In general, Midwest power plants located on rivers may have little if any impingement problem, particularly compared with plants located on ocean estuaries.

“I would recommend that existing screens don’t stand a chance with the standards,” said Gregory L. Howick, PhD., senior aquatic ecologist with engineering firm Burns & McDonnell. “My feeling is that when you look at a new traveling screen system with its plumbing and space requirements compared with what we have now, it would be cheaper to yank out the old system and put in a new one.” He estimated the cost to install rule-compliant traveling screens could be on the order of $250,000 a screen, although the actual cost would depend on site-specific conditions. Even so, “that’s cheap compared to retrofitting to cooling towers,” he said.

Allen offered a higher estimate of around $1 million a screen, and said that a typical power plant may have two to four screens per unit. Some large plants may have as many as two dozen screens that would require retrofit. In a few cases, Allen said a plant may be able to install relatively inexpensive barrier nets or even behavioral deterrents such as sounds and lights.

And HDR’s Burnett said costs to replace screens likely would be more than $1 million and “more generally” would be in the $5 million to $10 million range for a typical facility. Those estimates represent costs to comply just with federal standards. Some parts of the country—notably New York and California—have more stringent rules that could push up costs considerably (see the “State Actions” sidebar).

1. Here fishy, fishy. Personnel at Omaha Public Power District’s (OPPD’s) North Omaha Station had to bring in fish from elsewhere in the Missouri River to test the effectiveness of a water intake screen. “The reality is our water intakes aren’t impacting fish populations,” an OPPD official said. Courtesy OPPD

Best Technology Available

The EPA identified three best performing technologies for further analysis as the basis for its proposed 316(b) rule: Modified traveling screens with a fish return (for fish impingement), barrier nets (for shellfish impingement in tidal waters), and mechanical draft wet cooling towers (for impingement and entrainment at new units). Although the EPA identified velocity reduction to 0.5 feet per second or less as a candidate best performing technology for impingement, the agency did not propose reduced intake velocity as BTA because it is not available at all facilities. It is, however, allowing facilities to comply with intake velocity of 0.5 feet per second or less where available.

The EPA found that modified traveling screens, such as Ristroph screens and equivalent modified traveling screens, are a best performing technology for impingement. These screens use coarse-size mesh with collection buckets designed to minimize turbulence, a fish guard rail/barrier to prevent fish from escaping from the collection bucket, “fish friendly’” smooth woven mesh, and a low-pressure wash to remove fish prior to any high-pressure spray to remove debris on the ascending side.

The EPA selected the seasonal deployment of barrier nets on estuaries and oceans as best performing technology for minimizing shellfish impingement, saying no other technology was identified as being available, demonstrated, and feasible. The EPA said it did not select wedgewire screens as a candidate technology for impingement mortality because the screens are not available and feasible for all existing facilities.

One technology to reduce impingement and entrainment mortality is wet cooling towers. The EPA said mechanical cooling towers achieve flow reductions of 97.5% for freshwater and 94.9% for saltwater sources by operating the towers at a minimum of 3.0 and 1.5 cycles of concentration, respectively. Based on the high levels of flow reduction obtained by optimized cooling tower operation, the EPA identified wet cooling towers as a candidate best performing technology for impingement mortality and entrainment mortality for new units at existing facilities. The agency stopped short, however, of proposing cooling towers as BTA for existing facilities (other than new units).

The EPA also proposed stopping short of establishing a uniform BTA entrainment standard based on closed-cycle cooling for existing facilities other than for new units. Instead, the EPA proposed that the permitting authority should establish BTA entrainment mortality controls on a site-specific basis. The EPA cited four factors that led it to reject a uniform standard based on closed-cycle cooling: Energy reliability, air emissions permits, land availability, and remaining useful plant life.

First, the EPA said it recognized that there may be potential adverse consequences to reliability from installing cooling towers, particularly if large amounts of generating capacity are forced to retire on economic grounds as a result. Second, the EPA said that increased air emissions may be associated with increased combustion of fossil fuel as the result of closed cycle cooling, and additional particulate matter formulation associated with plume drift (even with plume abatement technology). The EPA acknowledged it may be difficult or impossible to obtain air permits for cooling towers at existing facilities located in nonattainment areas or in attainment areas with maintenance plans. Third, the EPA identified land availability concerns that might limit the feasibility of cooling towers at some sites. Fourth, the EPA concluded that circumstances exist in which cooling tower construction and installation might not be warranted given the facility’s remaining useful life.

Compliance Strategy

On entrainment, the strategy for power plants will be to show that the cost of addressing entrainment far outweighs any benefits. Presented with such a cost-benefit analysis, the hope is that the regulator will say “‘no, don’t bother,’” said Howick. That means the only plants where entrainment-preventing equipment is likely to be required are those located on a “highly productive area” such as an estuary, he said.

That strategy could be at risk, of course, if the EPA incorporates non-use benefits in its final rule, opening the door for more costly control technologies and further lawsuits. “I am concerned Riverkeeper will find the rule completely unacceptable, and we go back into litigation. This will result in a waste of industry resources as facilities start and stop compliance projects and ultimately a delay in protection of fish,” said Burnett. He cautioned, however, that utilities need to start to work toward compliance when and if the final rule is published, as litigation can take years to produce a remand and specific requirements are frontloaded, particularly for Phase II facilities. For example, numerous compliance reports must be completed and submitted to regulatory agencies within months of the final rule’s publication, including a commitment on the part of each regulated facility as to how it will comply with the impingement portion of the rule.

After 37 years of work, he said, “it’s in the country’s interest—and the fishes’ interest—to get a final rule.”

David Wagman is executive editor of POWER.