By Robynn Andracsek, P.E., Contributing Editor, Burns & McDonnell
EPA is preparing to battle utilities on a second front. This time it’s a water assault (as opposed to an air assault) using Section 316(b) of the Clean Water Act (CWA). EPA’s regulations implementing this simple section of the Act have been litigated up to the Supreme Court and back again. Section 316(b) states:
“Any standard established pursuant to section 301 or section 306 of this Act and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” [emphasis added]
Briefly, 316(b) addresses the squashing against intake screens (“impingement”) or suctioning into the cooling system (“entrainment”) of fish and shellfish or their eggs at facilities that need large quantities of cooling water from lakes, rivers, estuaries or oceans.
EPA first attempted to establish regulations under 316(b) shortly after it was included in the original CWA in 1972. That attempt ended with a complete rejection by the courts on procedural grounds and the rules were withdrawn in 1979. In 2001, EPA finally promulgated new 316(b) rules. Several lawsuits later, the rules remain in flux. The key issues involved in the litigation of EPA’s 2001 rules have been:
- What is the best technology available (BTA) for each subject facility?
- Can mitigation be allowed in lieu of prevention?
- What are the costs of controls versus their benefits?
- Can EPA even consider a cost/benefit analysis?
Phase I of the 316(b) rules addresses new cooling intakes greater than two million gallons a day. It established BTA as a half foot per second (0.5 ft/sec) through-screen velocity and a design intake rate commensurate with closed cycle cooling.
Phase II applies to existing power plants having a design water intake rate greater than 50 millions gallons a day (roughly 50 MW). Most of the controversy lies here. Actions that can be taken to protect aquatic life include changing from once-through to closed-cycle cooling, installing traveling screens with fish handling return systems and dual flow screens. The goal is to mimic the impact of a 0.5 ft/sec intake and a closed-cycle system.
The main player in the lawsuits has been the Riverkeeper organization. Its stated mission is “to protect the ecological integrity of the Hudson River and its tributaries, and to safeguard the drinking water supply of New York City and the lower Hudson Valley.” However, the waters of the Hudson River are much different than, say, the Missouri River. The “best technology available” for a facility in one location, however, might be unnecessary or inapplicable in another.
In July 2007, EPA suspended the 316(b), Phase II rules for existing large power plants after the 2nd Circuit Court of Appeals decided in Riverkeeper Inc. v. EPA that the compliance standards were not consistent with BTA as defined in the Phase I rules. Numerous aspects of the 2nd Circuit’s ruling were appealed by a coalition of utilities and industry groups to the U.S. Supreme Court.
The Supreme Court agreed to rule on whether or not EPA has the authority to consider site-specific costs and benefits when making BTA determinations. This past April, the Supreme Court ruled that EPA may consider site-specific costs and benefits when determining BTA, but is not required to do so. The Court, therefore, left it to the Obama EPA to decide whether and how to apply a cost-benefit analysis.
Including cost-benefit analysis in the revised regulations would allow a case-by-case look at which control measures are appropriate at each individual facility, what impact the current arrangement is having on the fish population (if any) and allow potential benefits of control to be balanced against the financial impact on the power plant. At one end of the spectrum is a facility whose once-through cooling system operation is having a measurable adverse effect on fish and/or shellfish and where implementation of BTA will lead to a big improvement. At the other end is a power plant with once-through cooling that has no impact on local aquatic life and where control measures would be expensive with very little return.
More than a few parallels can be drawn between 316(b) in the CWA and Prevention of Significant Deterioration (PSD) in the Clean Air Act. Swap “best technology available” with “best available control technology;” Riverkeeper with Sierra Club; and “minimizing adverse environmental impact” with “routine maintenance, repair and replacement.” Voila! What began as a single phrase—and might even have been added to the Act as an afterthought—has been transformed through litigation into a complex set of requirements that remain in legal limbo.
Thanks to Gregory Howick, Ph.D, and Carl Weilert, Burns & McDonnell, for their input to this column.