EPA promulgates final standards for cooling water intake structures

Introduction

On May 19, 2014, the Environmental Protection Agency (EPA) released a long-delayed final rulemaking regulating cooling water intake structures at existing facilities under Section 316(b) of the Clean Water Act (CWA). For more than two decades, environmental advocates have pushed EPA to issue a rule under Section 316(b) in order to protect aquatic organisms, such as fish and shellfish, that become pinned against cooling water intake structures (impingement) or are drawn into cooling water systems (entrainment). Previously, EPA issued rules governing cooling water intakes at new facilities. The latest rulemaking addresses intakes at existing facilities. If unchallenged in court, this final rule would conclude what has been more than twenty years of litigation between EPA and environmental organizations.

Section 316(b) requires that the location, design, construction, and capacity of cooling water intake structures for facilities having a National Pollutant Discharge Elimination System (NPDES) permit "reflect the best technology available for minimizing adverse environmental impact." 1 The final rule seeks to minimize environmental harm associated with cooling water intake structures by identifying the best technology available (BTA) to reduce impingement and entrainment for certain categories of existing facilities and new units at existing facilities. These new requirements will be implemented through NPDES permits under Section 402 of the Clean Water Act.

According to the EPA, the final rule will affect approximately 1,065 existing facilities, of which 544 are power plants and 521 are manufacturing and industrial facilities. Regulated facilities include electric generating plants, petroleum refineries, chemical manufacturing plants, iron and steel mills, and aluminum production and processing plants.

Legal Background

The final rule follows a lengthy history of court challenges and administrative proceedings. Following a 1993 lawsuit, EPA entered into a consent decree which prescribed deadlines for three separate rulemakings implementing Section 316(b). Performing under the consent decree, EPA issued cooling water intake structure regulations for all new facilities in December 2001 (Phase I), for all existing large electric-generating facilities in February 2004 (Phase II), and for all existing small electric-generating facilities and manufacturing facilities in June 2006 (Phase III). As a result of further legal challenges, the Phase II rule and aspects of the Phase III rule were remanded to EPA for reconsideration. 2 In another settlement in 2010, EPA agreed to...