This article was originally published on the American
College of Environmental Lawyers' blog on June 12,
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
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
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,
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
On April 23, 2013, the D.C. Circuit ruled that the Environmental Protection Agency (EPA) has the power under the Clean Water Act (CWA) to retroactively veto a section 404 dredge and fill permit "whenever" it makes a determination about certain adverse effects, even years after the U.S. Army Corps of Engineers (Corps) has granted the permit to an applicant.
The D.C. Circuit Court of Appeals restored EPA's authority to withdraw the specification of streams for the disposal of mountaintop mining wastes – years after the Army Corps had issued the permit containing the specification.
After being taken to task by states and its own Inspector General for lack of final guidance on Vapor Intrusion, EPA has just released draft guidance documents for hazardous substances and petroleum products for comment.
Last week, the European Parliament rejected a proposal to reduce the quantity of greenhouse gas (GHG) emissions allowances in order to fix a supply-demand imbalance in the European Union Emissions Trading System (EU ETS).
On April 19, 2013, EPA released the proposed "Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category" (Steam Electric ELG). The proposed Steam Electric ELG would revise the existing technology-based effluent limitations guidelines [40 CFR 423] for most steam electric power plants and their discharges to U.S. waters or POTWs.
In a decision that should not have come as a surprise to anyone, the 9th Circuit Court of Appeals ruled on Thursday, in "Conservation Northwest v. Sherman", that the Bureau of Land Management and other agencies implementing the Northwest Forest Plan could not amend the NFP.