EPA Breaches Legal Commitment to Issue Final 316(b) Cooling Water Rule

The Environmental Protection Agency (EPA) failed to issue a final rule governing power plant cooling water by April 17 as agreed with environmental groups. In court papers, the agency instead stated its intention to complete the rulemaking by May 16, 2014. 

The agency secured more time under a modified settlement agreement with a coalition of environmental groups—including Riverkeeper Inc., Waterkeeper Alliance, Natural Resources Defense Council, Sierra Club, and Environment America—to finalize the standards after the two-week October 2013 government shutdown. The agency was required to take final action by Jan. 14, but an agreement with environmental groups later extended that deadline to April 17.

However, no more extensions will be granted, the environmental groups said on Wednesday. “The agreement allows the plaintiffs to reopen the 1993 litigation if EPA fails to meet the deadline.”

EPA Blames Delays on Bureaucratic Red Tape

In a letter to U.S. District Judge Laura Swain on Wednesday, the Department of Justice, on behalf of the EPA, explained that the delay stemmed from a failure to complete formal inter-agency consultations, which were suggested by Riverkeeper in public comment and required under the Endangered Species Act, with the Department of Interior’s Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service.

Those consultations will be completed “in time for the EPA Administrator to sign for publication in the Federal Register a notice of her final decision pertaining to the issuance of requirements implementing section 316(b) of the [Clean Water Act] at existing facilities on May 16, 2014,” the two-page letter says.

The DOJ also told Judge Swain that it had asked Riverkeeper to consider further amending the settlement agreement and extend the deadline or restart litigation on the rule.

A Long Impeded Rule

Issuance of the final rule under Section 316 (b) of the Clean Water Act has to date been delayed five times already, the environmental group coalition said on Wednesday.

The final rule will require that location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact (see POWER‘s upcoming June 2014 issue for in-depth analysis).

While Congress mandated the EPA establish cooling water standards in 1972, Riverkeeper and other groups sued the EPA in 1993 and obtained a consent decree in 1995, requiring EPA to issue a 316(b) rule in 1999. The consent decree was later amended to allow the EPA to issue the rule in three phases: Phase I (new plants) was finalized in 2001 and a portion of Phase III (new offshore and coastal oil rigs) was finalized in 2006; Phase II (large existing power plants) and the remainder of Phase III (small power plants and manufacturing facilities) were issued in 2004 and 2006, respectively, but were remanded by courts in 2009 and 2010.

In April 2011, the agency proposed new standards that could allow all facilities above a minimum size to install safeguards against the impingement of aquatic life. The proposal allows state officials to decide on a case-by-case basis—based on site-specific analysis—whether closed-cycle cooling systems and other technologies are required. The April 2011 proposal combines Phase II and III into one rule and covers roughly 1,260 existing facilities—670 power plants—each of which withdraws at least 2 million gallons per day of cooling water.

Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)

 

 

 

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