The US EPA, with mutual consent of the plaintiffs in the Second Circuit Settlement (Riverkeeper, et al. v. Jackson, 93 Civ. 0314 (LTS), and Riverkeeper, et al. v. EPA, 06 Civ. 12987 (PKC), has delayed the publication of the Final Clean Water Act section 316(b) Rule by up to one year from the July 27, 2012 deadline.

Just prior to the July 27, 2012 deadline imposed by the terms of the Second Circuit Settlement, the US EPA sought comments on two Notices of Data Availability (NODA) issued on June 11 and June 12, 2012. The June 11 NODA sought comment on the US EPA’s alternative approaches to its impingement mortality to its impingement mortality (IM) standards. The June 12 NODA sought comment on the US EPA’s preference survey, the results of which inform the US EPA of the public welfare benefits of the proposed regulations. More than 200 comments were submitted in response to the US EPA’s NODAs. We suspect that the US EPA delayed the issuance of its new 316(b) regulations in part because of the confusion created by the impingement NODA and the volume of comments received, although some members of Congress have suggested election-year politics for the delay.

With respect to the NODA on impingement, although the US EPA has suggested that a more flexible approach to impingement may be warranted, the nature and content of the comments reveal confusion and discontent, with many comments proposing additional approaches the US EPA should take for recognition of the inherent site-specificity of impingement control decisions. Also, many comments request withdrawal of the US EPA’s preference survey and its results for purposes of this rulemaking, arguing that the survey is fatally flawed.

Specifically, many of the steam electric company comments and comments by industrial companies reflected the points made by the Utility Water Act Group,

Edison Electric Institute, Nuclear Energy Institute, Electric Power Research Institute, and other industry groups. Most of these comments on the Impingement NODA expressed support with the measures that would allow owner flexibility in compliance. A brief summary of the most common issues from these industry groups includes:

  • Support for site-specific IM decisions by the regulator
  • Support for inclusion of the step to identify species of concern in the IM performance measure
  • Support for elimination of the 15 percent screen debris blockage criteria
  • That the 0.5 fps through-screen velocity is too conservative
  • More detailed description of the “first point of contact” for calculating throughscreen velocity
  • That closed cycle by definition is IM compliant
  • The definition of closed cycle needs more site-specific flexibility for cycles of concentration
  • IM barriers for shellfish must be eliminated
  • The 12 percent and 31 percent IM standards cannot be met
  • Avoidance of the strict numeric IM standards
  • “Credits” for existing technology and operations must be sustained
  • Proposed schedule must be clarified

The industrials have also included specific information about why their cooling systems would not comply with the IM standard or, for some closed cycle plants, why they could not comply with the proposed cycles of concentration standards.

Some of the state agencies seek to retain the numerical impingement survival standards, even if US EPA chooses lower survival performance standards. The agencies do not want a new “species” of concern group to address impingement compliance standards. The agencies also express concern with the schedule of implementation. The NY DEC specifically expressed concern with the US EPA’s “confusion” on the use of fine mesh screens and conversion of entrainables to impingable organisms.

Some of the environmental advocacy organizations and many of the individual public comments stated that the US EPA should require backfit of closedcycle cooling towers to mitigate entrainment and impingement impacts. These environmental groups also commented the numeric IM standards should be retained instead of being reduced as proposed by the manufacturing and industrial sectors. Some also commented that the US EPA should increase the cycles of concentration required for the cooling towers to further reduce the consumptive use of water.

We mention the possibility that US EPA could issue a new Draft Rule in great part because of the confusion created by the impingement NODA and the likelihood that US EPA would seek in the rulemaking to avoid any administrative or procedural errors similar to those that, in part, doomed the 2004 Steam Electric Phase II Rule, which was suspended in 2007.

John Downing of Senior Scientist at Shaw Environmental and Infrastructure Group co-wrote this article.