New Rule Suggests EPA is Caving Under Pressure (and so are the fish)
April 13, 2011
Riverkeeper Team
As posted on the Cleanenergy.org blog
By Josh Galperin, Esq.
In the face of pressure from Congress and industry, the Environmental Protection Agency (EPA) has just proposed a new rule that fails to adequately safeguard the aquatic ecosystems, fish and water they are charged with protecting. The new cooling water intake structure (CWIS) rule is required by the Clean Water Act to manage the amount of water that industry uses and thereby the number of fish that are killed by the industrial process. This rule applies to manufacturing facilities and some other industries, but the single largest water user in the United States, and therefore the most important subjects, are power plants, which collectively withdraw 201 billion gallons of water each day in order to cool the steam that is part of their electricity generation. When the plants suck in raw water, they also suck in or crush fish and other aquatic life from the water body.
Clean energy advocates had hoped that this new rule would require power plants to implement a system known as closed-cycle cooling, which allows plants to recycle the same water over and over again typically by running it through cooling towers. Some operations already use closed-cycle cooling, which can reduce water intake by 95%, but most use once-through cooling, which pulls millions of gallons of cold water into the plant, cools the plant’s steam, and then dumps hot water back into the water body. Once-through cooling systems negatively impact ecosystems on both sides: they kill fish through the intake and raise the water temperature at the point of discharge. Rather than address the problems of once-through cooling, EPA unfortunately punted the issue to already over-burdened and often disinterested state permitting agencies.
The newly proposed CWIS rule, if adopted, will be administered by state water quality agencies. The good news, and the easy part, is that newly built power plants will be required to install closed-cycle cooling systems or achieve the same results with some other technology because EPA does recognize that closed-cycle systems are a better technology to protect the environment. However, existing plants may not have to do anything to improve their operations. The rule is broken down in to two parts: (1) the rule addresses impingement, which is the technical term for fish that are crushed up against the water intake structure; (2) the rule addresses entrainment, the term for fish that are sucked into the system.
With respect to impingement, the CWIS proposal gives power plants two options. They can either monitor their intake and demonstrate that only 31% of impinged fish die over the course of a month (12% averaged over the year), or they can demonstrate that they they are sucking water into the plant at a rate of one half foot per second or less, which EPA has determined will allow most fish to swim away from the intake structure. At first blush these may seem like reasonable safeguards but EPA itself recognizes that more than 75% of power plants may already meet these standards, meaning that this proposal will do very little to improve the health of aquatic ecosystems.
Equally disappointing, EPA has not set any standards for entrainment. Rather, EPA has told state agencies to use their “best professional judgment” when deciding how plants should address the problem of entrainment.
Fish killed by impingement on a cooling water intake screen (from NY State Dept. of Env. Cons.)
The CWIS rule leaves us with one standard that will lead to almost no improvement from power plants and another that is essentially not a standard at all.
The “best professional judgment” analysis is a demonstrated failure in other areas of the Clean Water Act. For instance, state agencies are supposed to use their best professional judgment when deciding what type of technology power plants must use to treat their wastewater. Because of the burden this places on states, because of political pressures on state agencies, or perhaps because of the often close relationship between state regulators and regulated polluters, state permitting agencies rarely require adoption of protective new technologies to limit pollution. In Tennessee, for instance, Tennessee Valley Authority coal plants have been using essentially the same wastewater settling ponds for 50 years and the state water quality department still refuses to implement more stringent standards arguing that in their best professional judgment there is no need to improve half-century old methods.
In their press materials for this CWIS proposal EPA is championing an inadequate scheme. They claim that by pushing the decision to states rather than setting enforceable national standards they are creating an opportunity for greater public involvement, going so far as to say that they are “putting a premium on public input” (apparently over environmental protection) and that “the public’s comments will be instrumental in shaping safeguards for aquatic life and to build a commonsense path forward.” Without question public input does help to assure an open and effective regulatory process. Public input helps to assure that regulators do their jobs. Public input, however, is only effective if EPA actually gives state regulators a job to do in the first place. In the case of this CWIS rule there are inadequate standards and without a proper baseline all the public input in the world will amount to nothing.
Rep. Fred Upton
While developing the CWIS proposal EPA was regularly hounded by critics. U.S. Representative Fred Upton, a Republican from Michigan and now the Chairman of the House Committee on Energy and Commerce, sent a letter to EPA Administrator Lisa Jackson last year warning her that developing a strong CWIS rule would cost power companies too much money and that a “flexible” rule was preferable to setting any environmental standard. Based on the EPA’s new proposal it seems as if Chairman Upton’s concerns were addressed. But the concerns of many other Americans who care about the environment, clean energy, fish and aquatic ecosystems were ignored. Fortunately, there will be an opportunity for the public to weigh in on this rule and tell EPA that it must be strengthened.
EPA has said it wants to put a premium on public input and now is the time to start. The public comment period for this rule will open shortly, when the proposed rule is formally published in the Federal Register. Please check back to this post and to cleanenergy.org for more information on how to get involved once the comment period is open. EPA has already heard from the power industry and its supporters in Congress, it needs to hear from you too.
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