In the wake of a recent federal case, large power plants are off the hook for now as far as complying with the U.S. Environmental Protection Agency’s (EPA’s) 2004 rule intended to protect fish and other aquatic organisms by controlling cooling water intake practices. However, now many plant personnel at these same facilities feel caught in a net of confusion about what their current compliance obligations are.
Legal background
Established four years ago by the EPA under section 316(b) of the Clean Water Act (CWA), the Cooling Water Intake Structures Phase II regulations set national standards for cooling water withdrawals from water bodies by large, existing power plants. The agency based the Phase II regulations on performance standards aimed at minimizing the number of aquatic organisms adversely affected by intake structures (Figures 1 and 2). The rules provided five compliance alternatives and two economic tests that allowed site-specific alternative limits in cases where the actual costs of compliance would be “significantly greater” than the cost that the EPA considered in developing the standards. Consequently, many in the power industry thought the Phase II rule gave facilities and regulators an opportunity to ensure that the requirements under the regulations were economically reasonable and dealt with unique site-specific factors.
1. Down by the river. The Nearman Creek Power Station’s cooling water intake structure is located on the shoreline of the Missouri River. Courtesy: Kansas City, Kansas, Board of Public Utilities
2. Powering up Kansas. A close-up of the Quindaro Power Station’s cooling water intake structure on the Missouri River. Courtesy: Kansas City, Kansas, Board of Public Utilities
After being enacted, these Phase II regulations were quickly challenged in federal court by Riverkeeper Inc., an advocacy group dedicated to protecting the ecological integrity of the Hudson River and other water bodies. The environmental activist group sought through its litigation to protect aquatic organisms from being harmed by power plant operations.
According to statements published by Riverkeeper, a large power plant can withdraw several billion gallons of cooling water per day, killing the overwhelming majority of organisms in the withdrawn water through “entrainment” (dragging them into the facility) or “impingement” (striking them against the facility’s intake screens). The group asserted that, for example, on the Hudson River a cluster of power plants were found to have reduced specific fish species by nearly 80% in certain years. Riverkeeper also argued that in the U.S., the toll on fish by power plants rivals, and in some cases even exceeds, that of the fishing industry.
On January 25, 2007, the U.S. Court of Appeals for the Second Circuit issued its decision in the case Riverkeeper, Inc. v. U.S. Environmental Protection Agency, 475 F.3d 83 (2d Cir. 2007). This lawsuit dealt with the status of the Phase II regulations. The appellate court remanded back to the trial court several provisions of the rule.
Because so many provisions of the Phase II rule were affected by the court’s decision, the EPA decided to suspend the rule and issued its notice of the suspension in the Federal Register on July 9, 2007 (vol. 72, no. 130).
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