Appeals Court Finds Fault With EPA's Regulation of Water Intake Systems at Power Plants

A federal appeals court found that EPA failed to justify a rule that stops short of mandating the "best technology available" (BTA) to protect fish and other aquatic life threatened by cooling water intake structures at large, existing power-producing facilities (Riverkeeper, Inc. vs. EPA, 2nd Cir., No. 046692p, January 25, 2007).

Power plants and other industrial operations withdraw billions of gallons of water from the nation's waterways each day to cool their facilities. The flow of water into these plants traps large aquatic organisms against grills or screens, which cover the intake structures, and draws small organisms into the cooling mechanism -- resulting in billions of aquatic life being injured or killed every year.

In 2004, EPA issued a final rule that governs cooling water intake structures at large, existing power plants. Attorneys general from six states challenged EPA's decision not to select closed-cycle cooling systems, which minimize adverse impacts on the surrounding environment, as the BTA to existing power plants. The rule instead references national performance standards that the agency stated "are based on consideration of a range of technologies that EPA has determined to be commercially available for the industries affected as a whole."

The agency stated that it rejected closed-cycle cooling as BTA because of its generally high costs (due to conversions); the agency concluded that other technologies approach the performance of the more expensive option.

The court remanded that part of the rule in order for EPA to explain its conclusions. "At the outset, it is difficult to discern from the record how the EPA determined that the cost of closed-cycle cooling could not be reasonably borne by the industry. Additionally, EPA did not explain its statement that the suite of technologies 'approaches' the performance of closed-cycle cooling.

The decision can be accessed at http://www.ca2.uscourts.gov. More information on the Phase II rule can be found at http://www.epa.gov/waterscience/316b/phase2.

This article originally appeared in the 01/01/2007 issue of Environmental Protection.

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