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Riverkeeper Announces Settlement with EPA on Cooling Water Intake Regulations

Indian Point and impinged fish

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Agreement Paves Way for New Regulations to Protect Aquatic Species by 2012

On November 22, 2010, Riverkeeper and other environmental organizations signed a settlement agreement with the Environmental Protection Agency (EPA) that resolves two lawsuits brought against the EPA in 1993 and 2006 addressing the agency’s failure to issue regulations implementing Section 316(b) of the Clean Water Act. This section of the Act requires power plant operators and other large industrial water users to employ the “best technology available” for minimizing the adverse environmental impact of their operations on aquatic ecosystems.

Currently, cooling water intakes at hundreds of facilities across the country take in huge volumes of water from vital ecosystems like the Hudson River, resulting in the destruction of huge numbers of fish and other aquatic species at all life stages from being “impinged” against intake screens or “entrained” through the facility cooling system. Decades of such impacts have contributed to declining fish populations and destabilized marine and freshwater ecosystems. For example, Riverkeeper’s 2008 report The Status of Fish Populations and the Ecology of the Hudson concluded that ten of thirteen key Hudson River fish species are in decline, due in part to the impacts from once-through cooling systems at Indian Point and other Hudson River power plants. In addition, the 2007 Riverkeeper Report on Entrainment and Impingement at Indian Point focuses on the severe impacts caused by Indian Point’s cooling water intake and thermal discharge on Hudson fisheries. The number of fish and other aquatic creatures that could be saved each year by stronger EPA regulations on cooling water intakes is estimated to be in the billions.

Learn more about Riverkeeper’s 17 year campaign to strengthen these regulations and improve protection of the Hudson River ecosystem.

In the settlement, the EPA agreed to draft new regulations for existing facilities by March 14, 2011, and to take final action regarding the new regulations by July 27, 2012. In addition, the settlement contains the following key provisions.

  • In exchange for EPA’s commitment to issue new regulations, Riverkeeper and the other plaintiffs agreed to dismiss both cases, but retained the right to reopen the 1993 lawsuit if the EPA misses either deadline.
  • EPA will solicit public comment on whether to subject the cooling water intakes at these facilities to national performance standards.
  • EPA will keep Riverkeeper and our co-plaintiffs informed of key milestones throughout the rulemaking process. Senior EPA staff will meet with Riverkeeper if milestones are missed by more than 10 days.
  • The substance of the new regulations is not a part of the settlement agreement and will be subject to public notice and comment. Riverkeeper will provide input to EPA throughout the public process to ensure that new regulations will result in long-overdue requirements for existing power plants and other facilities that significantly improve environmental protection. Modernizing cooling water intakes is an important part of the larger effort to transition to a sustainable energy supply that is more efficient and meets our energy needs without continuing to degrade our precious natural resources.

    The new regulations should set a performance standard based on closed-cycle cooling for all industrial water users that can reasonably bear the costs of the technology. Upgrading an industrial facility from its current “once-through” cooling system to a “closed-cycle” system reduces the amount of water withdrawn and the resulting impact on aquatic life by 95-98%, drastically reducing the destruction of aquatic species and removing a long-term threat to the ecosystem permanently.

    For decades, the power industry has campaigned against updating regulations to reflect improved technology and the need to protect biologically and economically important aquatic ecosystems from further damage from industrial cooling water intakes. The industry argues that more environmentally protective regulations will deal a crippling blow to the power industry, forcing power plants across the country to shut down and threatening the reliability of the nation’s electricity supply. These arguments are a blatant attempt by the industry to mislead the public and elected officials, by distorting the truth about the regulatory process and the true economic effects of updated requirements for industrial water users. The industry’s predictions of economic collapse and draconian government regulation harkens back to the auto industry’s response to new seat belt requirements in the 1960s, or the chemical industry’s campaign to discredit Rachel Carson and others who first pointed out the dangers of the indiscriminate use of pesticides to public health and the environment. While the issues are distinct, the response is similar; resist technological upgrades by casting them as unnecessary and economically devastating. The power industry’s arguments must be seen in the context of the following key facts:

    • Closed-cycle cooling is a proven, reliable technology that has been in use at power plants around the country for decades. Nearly half the nuclear power plants currently operating use closed-cycle systems.
    • Rather than gradually adjusting and incorporating new technology into its operating fleet over the last 40 years, the power plant industry has actively fought any attempt by the EPA or individual states to require modernization of power plants’ cooling water intake systems.
    • Industry and individual plant owners will have time to plan for compliance with the rule. Industry reports assume that all 500 power plants subject to the rule would have to retrofit to closed-cycle cooling immediately following the issuance of new regulations, without regard to the cost or potential reliability concerns. In fact, compliance with any final new regulation that EPA issues in 2012 will happen over a lengthy timeframe as individual facility permits come up for renewal, and EPA will take a hard look at the compliance costs and the electricity market as a whole to ensure that any plant closures that might occur, if any, do not adversely affect the power grid.
    • The EPA rulemaking process under this settlement provides the industry and the general public significant opportunity to comment on the draft regulations, thereby ensuring robust public participation and input.
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