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EPA’s cooling water rule – this time it’s for real (I think)

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Last fall the US EPA again delayed finalizing the new standards proposed to govern how industrial plants intake cooling water as outlined in the Clean Water Act’s section 316(b). And that wasn’t the first time.

Since changes to the rule – which requires power and manufacturing 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 EPA wanted US 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 EPA’s ability to move the rule forward, causing further delays.

By the end of 2013, NGOs and related organizations were pressing 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.

But now it looks like we may get a final rule after all. While nothing is official yet, EPA has posted a modified settlement agreement on the Federal Register. In it, both EPA and Riverkeeper – the organization that originally filed the suits that led to the new standards – confirm that they cannot modify the agreement any further past April 17, 2014. 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…

I’m no lawyer, but language like “does not intend to seek a further extension” doesn’t exactly instill confidence that this rule will finally be put into effect. However, it’s the most concrete statement we’ve seen since the rules were proposed and seems to indicate that their inevitable acceptance is nearly here.

So what does this mean – and to whom? It means that all plants that take in more than 2 million gallons of water a day for cooling, which is about 1,260 manufacturing and power plants across the country, will need to possibly update their intake structures or construct new cooling towers in the next 8 years. At this point, plant owners should be well aware of the pending requirements. But for those who have been putting off thinking about it – and I don’t really blame you given the rule’s history – now is the time to start getting your plan in action to comply.

Nathan Henderson is a principal, senior fisheries biologist, and 316(b) expert.

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