EPA Promulgates Final Cooling Water Intake Rule: Much Ado About Not Very Much?


On Monday, EPA finally announced promulgation of its long-awaited rule governing cooling water intake structures at existing facilities. The rule is certainly important, but it’s not earthshattering and it may be more significant for what it does not do than for what it does.

What does it do?

• Facilities that withdraw at least 2MGD must reduce impingement based on a finding that use of modified traveling screens with fish returns constitutes the best technology available (BTA). However, the rule also authorizes regulated facilities to use six alternative compliance options – up from just one one in the draft – that provide at least equivalent performance.

• Facilities that withdraw at least 125 MGD will have to undertake a site-specific review to determine what entrainment controls will be required.

• Existing power generation facilities that add new capacity will be required either to reduce flow at the new unit to that attained by closed-cycle cooling or demonstrate that the new unit will not exceed a specified entrainment mortality.

What doesn’t it do? It doesn’t require closed cycle cooling – and, oh boy, are the environmental NGOs peeved. When EPA starts trumpeting options and flexibility, the NGOs start talking litigation.

Indeed, representatives of the regulated community were much more measured in their comments, and anyone reading between the lines will have to conclude that they are generally pleased with the final rule – at least they dodged the closed cycle bullet. It is a sad but telling sign of the times that the only people  other than the NGOs really to criticize the rule were Senators Inhofe and Vitter, presumably with an eye on November elections – but it’s unlikely that Gina McCarthy expects the Congressional GOP to praise EPA just because the NGOs described the rule as “largely worthless.”



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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