An amended settlement reached with environmental groups will allow the Environmental Protection Agency (EPA) to delay by nearly a year issuance of rules that would govern cooling water intake structures at existing power plants and mandate compliance under Section 316(b) of the Clean Water Act.

The original November 2010 settlement reached between the agency and plaintiffs, including environmental advocacy entities Riverkeeper, the Natural Resources Defense Council (NRDC), and other environmental groups, in two legal actions pending in the U.S. District Court of the Southern District of New York would have forced the EPA to issue a notice of its final action pertaining to those rules before July 27, 2012. But in a modification to that settlement signed on July 17, the groups agreed to allow the EPA to extend that deadline to June 27, 2013.

The EPA’s announcement comes just a week after the Washington Post reported that the White House asked the EPA to weaken proposed soot standards and only days after the agency said in a letter it would reconsider parts of its final Mercury and Air Toxics Standards. The EPA said on its website that the deadline extension of 11 months for the final cooling water intake rule would give it more time to “complete analysis of data, options and public comments” before finalizing the rule.

Section 316(b) of the Clean Water Act mandates that facilities with cooling water intake structures obtain National Pollutant Discharge Elimination System (NPDES) permits to ensure that the location, design, construction, and capacity of the structures reflect the "best technology available" to minimize harmful impacts on the environment.

A rule proposed by the EPA in April 2011 could require impingement-prevention controls at facilities withdrawing at least 2 million gallons per day of cooling water, covering roughly 1,260 existing facilities—including 670 power plants. New units at existing facilities would also be required to use closed-loop cooling towers, which are already mandatory for new facilities.

Since proposing its Section 316(b) rule in April 2011, the EPA has suggested in a published Notice of Data Availability (NODA) that it would allow additional compliance flexibility with respect to minimum standards for the survival rates of fish that are trapped on cooling water intake screens (also called "impingement mortality standards"). Specifically, unlike the proposed rule that establishes a uniform impingement mortality standard, the NODA proposes to allow states to set site-specific impingement requirements in situations where facilities cannot achieve the uniform standard. A NODA typically presents a summary of significant data received by a federal agency and outlines how it is considering incorporating those data in revised analyses supporting a final rule.

The EPA’s proposed changes were lauded by the Edison Electric Institute (EEI), an industry group representing about 70% of the U.S. power sector, saying in comments filed with the EPA that those "improvements" were "necessary to make the rule workable and reasonable." In its current form, the proposed rule would "impose requirements that many facilities could only meet by incurring costs that are wildly out of proportion to the benefits," EEI President Thomas Kuhn said in a July 11 letter to EPA Acting Assistant Administrator for the Office of Water Nancy Stoner.

In Congress, House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.), who have vocally opposed the suite of proposed and final rules promulgated by the Obama administration’s EPA, claimed in a joint statement that this latest "regulatory retreat" was an "acknowledgement that … EPA is regulating too much too fast and that there are flaws in the underlying proposed rule."

The postponement resulted from "pressure from Congress and the public, along with the threat of looming litigation," the lawmakers alleged. Though it was "good news for jobs," the "fight is only delayed a year, it is not over," they warned.

Meanwhile, NRDC Senior Water Attorney Steve Fleischli reportedly told Bloomberg BNA that the deadline extension was warranted to give the EPA "more time to get this right." Fleischli reportedly said that the original proposal was "so bad that time can only help them review all the information in the record and improve upon it."

Sources: POWERnews, EPA, House Energy and Commerce Committee, NRDC, Washington Post, Bloomberg BNA

—Sonal Patel, Senior Writer (@POWERmagazine)