Looking downstream
Currently, many professionals in the power generation industry are unhappy about being placed in limbo, waiting for the U.S. Supreme Court to make a decision concerning the Phase II regulations. Likewise, there is much speculation about the possible content of the new Phase II rule that will finally emerge from this long legal ordeal.
“Based on the Second Circuit’s ruling, I suspect the new Phase II rule will contain standards similar to those in the Phase I rule,” said Howick.
According to him, all facilities might have to implement through-screen velocities of no more than 0.5 feet per second (to minimize impingement) and convert to closed-cycle cooling to minimize intake rate and entrainment. Or they may have to implement other technologies to achieve substantially the same levels of impingement mortality and entrainment. Howick further speculated that the EPA might conclude that for some environments, such as freshwater lakes and large rivers, reducing entrainment rates to those commensurate with closed-cycle cooling would be an undue burden on the industry as a whole. Instead, according to Howick, the EPA might decide that locating cooling water intakes on such source water bodies is the BTA for entrainment.
“If the U.S. Supreme Court upholds the industry’s challenge to the Second Circuit’s ruling, then site-specific considerations of costs vs. benefits would drive determination of BTA,” Howick further commented.
Given the range of possible new regulations, he firmly recommends that power plants take a wait-and-see approach to section 316(b) compliance issues and instead comply with requests from their state regulators until the U.S. Supreme Court takes action.
“My crystal ball says that the U.S Supreme Court will issue a ruling on the challenge to the Second Circuit’s decision in spring 2009,” said Howick. “EPA will draft new rules that will hit the streets for comment in early 2010. Final rules will be issued in early 2011.”
We can only hope that when the U.S. Supreme Court’s new term commences in October, it doesn’t have “bigger fish to fry” and instead gives priority to resolving this important issue. The U.S. power generation industry needs a sensible section 316(b) policy that balances economic needs with protecting our natural resources.
—By Angela Neville, JD
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