EPA’s Cooling Water Rule–What Now?

Editor’s Note: The EPA’s 316(b) Clean Water Act rule was finalized May 20, after this article was published. Read that story here.

by Nathan Henderson and Bill Mcelroy, Stantec

Last fall the Environmental Protection Agency (EPA) again delayed finalizing the new standards proposed to regulate how power and manufacturing plants take in cooling water as outlined in the Clean Water Act’s section 316(b).

And that wasn’t the first time.

Because changes to the rule, which requires plants to upgrade their water intake equipment to reduce impacts to aquatic wildlife, were proposed in 2006, a final ruling has been delayed at least six times for differing reasons.

Most recently, the EPA wanted U.S. Fish & Wildlife and the National Marine Fisheries Service to properly review the rule for compliance with the Endangered Species Act.

Then the federal government shutdown in October slowed the EPA’s ability to move the rule forward, which caused further delays.

By the end of 2013, nongovernmental organizations (NGOs) and related organizations were pressing the EPA to make hard and fast national standards for impingement (aka mortality) standards while industry, in most cases, preferred a case-by-case approach for compliance.

So, with that element to consider, they put off the ruling once more.

Almost There

Now it looks like we might get a final rule, after all. Although nothing is official as of publication, the EPA has posted a modified settlement agreement on the Federal Register. In it, both the EPA and Riverkeeper, the organization that originally filed the suits that led to the new standards, confirm they cannot modify the agreement any further past April 17. The agreement states:

WHEREAS, to enable EPA to complete the section 316(b) rulemaking, including to finalize the language of the rule and the preamble and supporting documents for the rule, EPA has requested further modification of the Settlement Agreement to extend the date on or before which EPA is to take the action under Paragraph 4 of the Settlement Agreement to April 17, 2014, and Riverkeeper has consented to such a modification; and

WHEREAS, EPA does not intend to seek a further extension of the date by which EPA is to take the action under Paragraph 4 of the Settlement Agreement beyond April 17, 2014, and Riverkeeper does not intend to agree to any further extension of the deadline for EPA to complete the section 316(b) rulemaking beyond April 17, 2014. “

Although language such as “does not intend to seek a further extension” doesn’t exactly instill confidence that this rule finally will be put into effect, it is the most concrete statement we’ve seen since the rules were proposed and seems to indicate that their inevitable acceptance is nearly here.

What Now?

So what does this mean for power utilities? Because any plant that takes in more than 2 million gallons of water a day for cooling possibly will need to update its intake structures or construct new cooling towers within the next eight years, those costs will be incurred by the utilities that are subject to the rule.

Some plants might have plans underway to address any changes they need to make to comply, but many facilities have not focused on it because the rule has been so nebulous and problematic.

As a utility, what should you be doing?

  1. Take stock. Make sure utility owners and operators fully understand the state of planning at their facilities and what could need updating. Which power plants affect your utility? Have they assessed their expected upgrades yet? If so, how will those changes affect the relationship with the utility?
  2. Bring in O&M. Operations and maintenance staff should be involved in these discussions early. They tend to be the most informed about a facility’s peak times, outages and needed upgrades. As utility management coordinates with the power companies, the ongoing operation and maintenance needs should be considered, as well, because they affect the budget and energy use year after year.
  3. Assess upcoming improvement plans. If your facility has some maintenance or improvements scheduled for the next few years, take a look at if or how any 316(b) improvements might affect them. For example, if it is expected that a facility needs new or upgraded intake screens, pumps or motors, review whether these plans should be deferred until it’s clear if that equipment will be altered because of 316(b) requirements. In addition, make sure you aware of and understand any dispositions, “wants of the state,” or federal regulatory agencies on preferences toward impingement or entrainment mitigation at your facility.
  4. Consider the help of a specialist. All of the planning, analysis, budgeting and decision-making related to the cooling water intake rule can be overwhelming. Utilities might want to consider hiring engineering or environmental consultants to help them understand what’s going on with the power companies and how it affects them. The most helpful consultant is one who has worked on different types of facilities and has developed a broad base of experience and creative thinking for compliance approaches. This kind of specialist can assess a facility and immediately help answer such questions as: What is the flow rate? What is the approach velocity? What is the current technology at the cooling water intake structures (CWIS)? Are there fish return systems? With those answers, the steps for complying with mortality standards can be determined. An experienced specialist also can quickly gauge the magnitude of costs for making those changes or help determine if the technologies currently employed are similar enough to those suggested in the 316(b) guidance to pass muster. Although this kind of impartial, professional guidance costs money, the small investment it means for the short term might save much more in the long term either by avoiding spending on unnecessary alterations or by avoiding the fines that could come from noncompliance.

It’s been difficult to come to consensus on the cooling water intake rule, and the journey might not be complete. But it’s close enough to final for utility managers to understand what is required of the 1,260 affected plants and how utilities can prepare.


Nathan Henderson is a principal and 316(b) practice lead for Stantec, based in Maine.

Bill Mcelroy is a senior engineer based in Stantec’s Plymouth Meeting, Pa., office. He has more than 30 years of experience in the power industry.

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