Preparing for the EPA’s Cooling Water Rule

With the U. S. Environmental Protection Agency’s (EPA’s) issuance of a final rule regulating cooling water intake structures at existing facilities potentially less than a year away, facilities should be paying close attention to the proposed rule’s provisions, data requests, and study requirements as they evaluate their compliance options and begin to formulate their compliance strategy.

Overview of Proposed Rule

The proposed rule’s primary purpose is to regulate existing facilities utilizing once-through cooling water systems. The rule, as proposed, applies to all existing power plants and manufacturing facilities that have the design capability to withdraw more than 2 million gallons per day (mgd) from U.S. waters and use at least 25% of such water exclusively for cooling water purposes. The EPA states that 355 facilities across the U.S. employ once-through cooling. Of the 104 operating U.S. nuclear units, 60% use once-through cooling systems, according to the Nuclear Energy Institute.

Under the proposed rule, permitting authorities will use their best professional judgment in selecting the best technology available (BTA) to reduce entrainment, the incidental drawing of fish and other aquatic organisms into a power plant’s cooling water system. Consequently, while the EPA’s draft rule does not identify closed-cycle cooling or any other technology as the national standard for minimizing entrainment, the ultimate decision on how best to reduce entrainment at a particular facility will be made, in most instances, by state environmental protection agencies after reviewing all the information before them.

Focusing on Entrainment Reduction

It is incumbent upon facility managers to begin developing their overall approach from the very first submittal required by the proposed rule. Provisions in the proposed rule allow for consideration of a number of technical, biological, and economic factors that may help a facility develop its site-specific approach to entrainment.

The proposed rule recognizes that energy reliability, increased air emissions, land availability, and remaining useful plant life are four key factors, among others, that the permitting authority must consider in making any decisions regarding BTA for reducing entrainment. Furthermore, the proposed rule provides that the permitting authority may reject an otherwise BTA (or not require any BTA controls) if the control costs are not justified by the benefits. Thus, any compliance strategy must fully consider these issues.

In addition, if a nuclear facility can show that compliance with the proposed rule conflicts with a U.S. Nuclear Regulatory Commission safety requirement, the proposed rule provides that either the EPA or state permitting authority must make a site-specific BTA determination for minimizing adverse environmental impact without conflicting with the facility’s safety requirements.

All plants subject to the proposed rule must be mindful of the numerous application studies that will be triggered once the rule is issued, which, at present, is likely to occur in the summer of 2013. The permitting authority will use these submittals to assess the entrainment impacts of a facility’s cooling water intake structure and to reach a determination regarding the appropriate technological and operational controls to be implemented at the facility.

Importantly, the amount of information requested is tied to a facility’s intake flow. The greater the design and actual intake flow, the more studies are required. Facilities should be aware that, within six months of the final rule’s effective date, plants with a design intake flow of 50 mgd or more must initially submit a wide range of information, including studies to describe the source water body, cooling water intake structures, and cooling water system; characterization of the biological community in the vicinity of the cooling water intake structure; a plan for controlling impingement mortality; a description of biological survival studies addressing technology efficacy and other studies on impingement and entrainment at the facility; and a discussion of the operational status of the facility.

Following these submittals, facilities that fall within this category and also withdraw more than 125 mgd, and existing facilities with new units, have more work to do. The proposed rule calls for the development of information leading to the submittal of an entrainment characterization study within four years and comprehensive studies assessing technical feasibility, costs, and benefits of installing various technological and operational controls within five years of the final rule’s effective date. These reports will be critical to any agency BTA assessment, and it is within the discretion of the permitting agency to move up these reports’ timetables.

Throughout this process, facility owners and operators should be very aware of federal and state regulatory preferences in developing an overall compliance strategy reflecting the individual facility’s specific circumstances. For instance, California and New York have policies in place favoring closed-cycle cooling technology or achieving reductions in intake flow or entrainment mortality to levels commensurate with closed-cycle cooling.

Facilities Need to Advocate Site-Specific Plans

The information submitted by a facility as required by the proposed rule will form the basis for the permitting agency’s determination about what constitutes BTA for entrainment. As any BTA determination will be based upon the permit writer’s best professional judgment, facilities have the opportunity to “make their case” based on site-specific economic, technical, and biological findings as developed throughout the entire process.

— Harold M. Blinderman, JD ([email protected]) is a partner at the Day Pitney law firm in Hartford, Conn.