United States: EPA Unveils Final Cooling Water Intake Structures Rule

On May 19, the U.S. Environmental Protection Agency (EPA) finalized its long-awaited rule under Section 316(b) of the Clean Water Act (CWA) imposing requirements for cooling water intake structures (CWIS) at power plants and manufacturing facilities in order to protect aquatic life.  The rule, on which EPA received input from the U.S. Fish and Wildlife Service and National Marine Fisheries Service, will become effective 60 days after its publication in the Federal Register.

EPA has stated that the withdrawal of large volumes of water from nearby water bodies by power plants and manufacturing facilities results in the removal of billions of aquatic organisms from these water bodies each year.  The main threats CWIS pose to these organisms are impingement (the entrapment of organisms against the outer part of a CWIS) and entrainment (drawing of the organisms into the cooling water system).

The final rule establishes requirements for the location, design, construction and capacity of CWIS at "existing" power generating facilities and manufacturing facilities that withdraw at least two million gallons of water per day from nearby water bodies and use at least 25 percent of that water exclusively for cooling.  The rule defines an "existing facility" as a facility "that commenced construction as described in 40 CFR 122.29(b)(4) on or before January 17, 2002 (or July 17, 2006 for an offshore oil and gas extraction facility) and any modification of, or any addition of a unit at such a facility."  Section 122.29(b)(4) states that construction commences when the facility's owner or operator has (1) begun to place, assemble or install facilities or equipment or has begun to conduct "[s]ite preparation work" (e.g., clearing or excavation activities), or (2) entered into a binding contract (other than option contracts, contracts that may be terminated or modified without substantial loss, and contracts for feasibility engineering or design studies) to purchase facilities or equipment it intends to use for its operations within a reasonable time period.  EPA estimates that the rule covers approximately 1,065 facilities – 544 power plants and 521 factories.

The final rule's requirements will be implemented through National Pollutant Discharge Elimination System (NPDES) permits, and EPA stated that the requirements are based on the best technology available (BTA) for minimizing environmental impacts.  The rule establishes a baseline for protecting aquatic life from CWIS, but also allows for state permitting authorities to build in additional facility-specific safeguards.  The rule contains three major components:

  • Covered facilities must reduce impingement of aquatic life through one of seven options for meeting BTA requirements, including operation of a closed-cycle recirculating system, installation of an offshore velocity cap, or potentially using a modified traveling screen;
  • Facilities withdrawing at least 125 million gallons of water per day must conduct studies to assist permitting authorities, through a process involving public input, in determining any site-specific entrainment mortality controls that may be necessary; and
  • New units built at an existing facility to increase the facility's generating capacity must reduce entrainment and impingement by either reducing actual intake flow to a level similar to a closed-cycle recirculating system or demonstrating that the facility has installed controls for each of the new unit's intakes that reduces entrainment mortality.

Although Congress first mandated that EPA establish standards for cooling water in 1972, EPA did not promulgate any regulations addressing CWIS until 2001, after a 1995 consent decree settling litigation brought by Riverkeeper and several other environmental groups required EPA to issue such regulations.  A subsequent amendment to the consent decree allowed EPA to issue CWIS regulations in three phases:  Phase I was finalized in 2001 and applied to new power plants and manufacturing facilities.  Part of Phase III, applicable to new offshore and coastal oil rigs, was finalized in 2006.  The facilities that are the subject of the regulations issued on May 19 – existing power plants and manufacturing facilities – were originally to be addressed in Phase II and the remainder of Phase III and the subject of regulations issued in 2004 and 2006, respectively.  Subsequent litigation remanded those rulemakings to EPA.  The final rule, which EPA initially proposed in April 2011 and which comes after several extensions to a deadline EPA negotiated with the Riverkeeper coalition, serves as EPA's second attempt to implement regulations for existing power plants and manufacturing facilities.  The final rule also removes from the Phase I rule for new power plants and manufacturing facilities certain restoration-based compliance alternative and associated monitoring and demonstration requirements.

In response to the rule, Riverkeeper issued a statement on behalf of several other environmental groups lamenting that the rule gives too much authority to state environmental agencies and also allows industry members to avoid cooling water recycling requirements.  On the other side, industry groups have noted that the final rule's predicted compliance costs will be lower than those contained in EPA's 2011 proposal, and the rule offers a flexible solution to the issue of how to balance protection of aquatic life with the costs of operating a facility with CWIS.  Industry groups have expressed concern, though, that the rule will lead to substantial compliance and operational difficulties and may not give enough flexibility to state agencies to regulate CWIS on a cost-effective basis.

Although the final rule does not set a specific compliance deadline for covered facilities, the rule requires facilities to, upon issuance of a final NPDES permit under the new rule, comply with impingement and entrainment standards "as soon as practicable."  The rule also gives the NPDES Permit Director the authority to establish interim compliance milestones in facilities' NPDES permits.  New units must comply with the BTA standards for entrainment and impingement upon commencement of the new unit's operation.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.