Proposed Cooling Water Rule’s Ripple Effects

The U.S. Environmental Protection Agency (EPA) has a long history of making waves with the electric power industry because of its efforts to regulate the way thermal power plants construct and operate their cooling water intake structures (CWIS). These structures divert billions of gallons of water into power plants’ cooling systems and can injure or kill billions of aquatic organisms.

The EPA’s mission is to enforce Section 316(b) under the Clean Water Act, which requires facilities to adopt the best technology available (BTA) to minimize adverse environmental impacts from fish being drawn into CWIS (known as entrainment) or being trapped against screens at the front of an intake structure (known as impingement), where fish may be harmed or killed.

EPA’s Possible Shift to a More Flexible Rule

For years industry representatives have complained that the EPA was too rigid about considering more cost-effective CWIS options suggested by power plant operators. Now the agency appears to be moving to a less hard-line interpretation of Section 316(b)’s BTA requirement for facilities that operate CWIS.

On May 31, the EPA posted a Notice of Data Availability (NODA) in advance of forthcoming regulations that signals the agency may provide more BTA options. The NODA presents a summary of the significant new information and data that the agency has received since its April 2011 proposal was released as well as a discussion of possible revisions to the final rule that the EPA is now considering. This rule covers approximately 670 power plants, according to the EPA.

In its April 2011 proposed rule, the EPA recommended case-by-case, site-specific determinations of BTA to prevent entrainment, but it appeared to favor the installation of traveling screens as the uniform national BTA standard for preventing impingement. Traveling screens can be costly and challenging to install, depending on the size of the facility and site conditions.

In contrast, the NODA provides several alternatives to this one-size-fits-all approach to BTA used for dealing with impingement, including these:

• In defining BTA, the new regulations may permit a facility to adopt “any technology it chooses so long as it will achieve the required impingement limitation.” The EPA is also considering giving credit for impinged fish survivability and for fish that a facility excludes from becoming impinged in the first place.
• The EPA may also establish a “de minimis” impingement category that would effectively eliminate BTA requirements for facilities with very low impingement rates.
• The EPA is considering whether to allow establishment of impingement controls on a site-specific basis, either in all cases or limited to those circumstances in which the facility demonstrates that the national controls were not feasible. Under such an approach, rather than meeting a specific, predetermined standard, a facility could seek a site-specific BTA for both entrainment and impingement mortality.
• The EPA is suggesting a new “streamlined” regulatory process for facilities that simply opt to employ modified traveling screens with fish returns, which the agency considers to be preapproved BTA. In this case, as long as the owner or operator of a facility complies with the specified operational conditions, the impingement mortality limitations would be deemed to have been met and the owner or operator wouldn’t have to conduct any biological monitoring to show compliance.

Mixed Responses to the EPA’s Recent Actions

In the wake of the EPA’s NODA, many industry critics applauded the agency’s attempt to take a more flexible approach to regulating CWIS. For example, the Edison Electric Institute (EEI), a long-time critic of the EPA’s CWIS rule, commented that it was “encouraged” by the agency’s openness to receiving feedback from the regulated community. The EEI is the association of U.S. shareholder-owned electric companies whose members represent approximately 70% of the U.S. electric power industry.

“The NODA incorporates new information EPA received in comments and during power plant site visits and seeks public comment on vital concerns to the utility industry,” EEI President Thomas Kuhn said on June 1. “These issues must be fleshed out and appropriately addressed as the administration works toward finalizing a rule this summer that protects aquatic life in a flexible and cost-effective manner.”

Yet the EEI denounced the results that the EPA recently released from its “willingness-to-pay” survey, which is intended to determine the so-called non-use benefit of the CWIS regulation. In the case of the proposed CWIS rule, that would be the price that people hypothetically would assign to having a healthy fish population from which they would gain no direct benefit. The EPA stated it would take the survey into consideration in drafting the final rule.

“The very premise of the survey is misleading to the public,” Kuhn said. “It infers without any solid justification that improvements in fish populations and aquatic ecosystems can result from regulating cooling water intake structures.”

Moving Beyond the Cross Currents

The U.S. power generation industry needs a sensible Section 316(b) policy that balances economic needs with protection of our natural resources. The EPA should enact a CWIS rule that is based on demonstrable costs and benefits. The agency needs to consider both the costs borne by power plants to comply with 316 (b) permits along with the economic benefits of environmental protection. Hopefully, the new rule will encourage utilities to find and use available, affordable technologies that prevent unnecessary fish kills and damage to the environment.

— Angela Neville, JD is POWER’s senior editor.