EPA to Finalize Phase II Cooling Water Intake Structure Rule for Existing Facilities by April 17, 2014

The EPA will finalize the cooling water intake rule for existing facilities pursuant to Section 316(b) of the Clean Water Act by April 17, 2014.  The proposed rule will cover approximately 1,260 existing facilities, primarily impacting older facilities that use once-through cooling systems.  Newer facilities employing closed-cycle cooling will not be affected by this rule.

Section 316(b) of the CWA requires that National Pollutant Discharge Elimination System (NPDES) permits for facilities with cooling water intake structures ensure that the location, design, construction, and capacity of the structures reflect the best technology available to minimize harmful environmental impacts.  In November 2010, the EPA signed a Settlement Agreement with Riverkeeper, Inc. agreeing propose rules setting technology standards for existing facilities by March 14, 2011 and take final action by July 27, 2012.  In March 2011, the EPA published a proposed rule.  After numerous extensions, the parties agreed on February 10, 2014 to extend the date for the final rule to April 17, 2014.

The proposed rule would apply to existing facilities that (1) withdraw at least 25% of their water from an adjacent water body exclusively for cooling purposes; and (2) withdraw at least 2 million gallons per day of cooling water.  The proposed rule is designed to minimize harm to aquatic organisms through impingement and entrainment.  The rule sets an upper limit on impingement mortality which facilities can meet by using fish screen technology or by reducing intake velocity.  The rule does not set a nationwide limit on entrainment, but instead relies on a state permitting agencies to establish controls on a site-specific basis.

Laura Patterson Hoffman focuses her practice in the areas of environmental and regulatory law, energy, tort and business litigation. Hoffman regularly assists energy producers with compliance issues and litigation relating to the Clean Water Act and other environmental permitting issues. She has practiced in federal and state courts and before the Kentucky Office of Administrative Hearings. Hoffman has also engaged in extended negotiations with the Kentucky Cabinet for Energy and Environmental Protection and various environmentalist groups. She also has experience in groundwater contamination litigation and contractual disputes.
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