This article was originally published on the American College of Environmental Lawyers' blog on June 12, 2012.
Section 316(b) of the Clean Water Act requires that the
location, design, construction, and capacity of cooling water
intake structures reflect the best technology available for
minimizing adverse environmental impact. EPA embarked on
three rulemaking phases to implement the statutory
requirements.
The latest rulemaking effort began on April 20, 2011 when EPA
published a proposed rule to protect fish from being killed at
water intake structures that withdraw at least 2,000,000 gallons of
water per day from waters of the United States and use at least 25%
of the water they withdraw exclusively for cooling purposes.
The proposed rule resulted from a request by EPA to the Fifth
Circuit to take back portions of its cooling water rule relating to
existing facilities (ConocoPhillips v. EPA, 5th Circuit No.
06-60662, July 23, 2010). Pursuant to a Settlement Agreement
with the environmental group Riverkeeper and other organizations,
EPA is required to issue the revised rule by July 27, 2012.
EPA has just published notice in the Federal Register presenting a
summary of the significant new information and data EPA has
received since its April 20, 2011 proposal and a discussion of
possible revisions to the final rule that EPA is considering that
were suggested by the data and comments. 77 Fed. Reg. 34315
(June 11, 2012)
During the comment period on the April 20, 2011 draft rule, EPA
received more than 1,100 comment letters. It also received
more than 80 documents containing new impingement and entrainment
data for possible use in developing the final impingement mortality
limitations.
EPA has now made the submitted information available for public
review and has offered a 30-day comment period on the new
information the agency will consider in making its decision on the
final rule. Comments must be received on or before July 11,
2012.
A second key part of the Section 316(b) rulemaking, scheduled for
publication on June 12, is a Notice of Data Availability which
summarizes from a stated preference survey conducted by EPA after
the April 20, 2011 proposed rule was published. EPA likewise
is expected to allow a 30-day comment period on the preference
survey summary and results.
To quote from the pre-publication version of the Federal Register
notice, ". . . a stated preference survey attempts to gauge
the value of an item through questions designed to mimic consumer
decision-making in actual markets. . . . The stated
preference survey estimates the value held by the public for
ecosystem improvements based on the choices the surveyed members of
the public make between hypothetical policy options and current
conditions." EPA will solicit comment on all aspects of
the study and the appropriate role, if any, the study should play
in EPA's Section 316(b) rulemaking proceeding. EPA asks
for comments even though it has not yet completed its statistical
analysis of the survey data and is not in a position to determine
whether the results of the survey will play a role in the benefits
analysis for the final rule.
Given these two federal notices and the 30-day comment periods
ending in the second week in July, it is hard for me to understand
how EPA is going to comply with the court-required issuance date of
new rulemaking by July 27. Stay tuned.
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