Power Plant Cooling Water Intake Rule Called Illegal

By J.R. Pegg

WASHINGTON, DC, February 18, 2004 (ENS) - To cool their turbines, power plants withdraw billions of gallons daily from reservoirs, rivers and lakes, often drawing fish and other aquatic animals in with the water. A final rule designed to protect aquatic life from dying in the water intakes was signed Monday by U.S. Environmental Protection Agency (EPA) Administrator Mike Leavitt, but environmentalists say the rule is too lenient and violates the Clean Water Act.

"EPA has completely abdicated its congressionally mandated duty to require best technology for minimizing fish kills," said Alex Matthiessen, Hudson Riverkeeper and executive director of Riverkeeper, Inc., an environmental advocacy group.

According to Riverkeeper, Leavitt rejected the recommendation by EPA staffers to require closed-cycle cooling water technology at the direction of the White House Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA).

The closed-cycle systems are more expensive than systems that use cooling water once only, but they are fish friendly because they cut the smount of water put through the intake systems. Closed-cycle cooling systems use 95 percent less water than once through systems.

"This was Governor Leavitt's first big test," said Matthiessen, "and he has shown himself to be indifferent to federal law and unwilling to stand up to the White House." Leavitt, a Republican, was Governor of Utah when he agreed to take the EPA top position late last year.

The rule is the second of three cooling water intake regulations the EPA is required to develop under the Clean Water Act and to satisfy terms of a consent decree filed in 1995 as a result of a lawsuit brought by several environmental groups.

Some nuclear power plants use two billion gallons of water a day to cool turbines. (Photo courtesy Tennessee Emergency Management Agency)

The Phase II rule announced Monday is for existing electric generating plants that withdraw more than 50 million gallons of water per day.

The rule requires these facilities meet performance standards to reduce the number of organisms pinned against parts of the cooling water intake structure by 80 to 95 percent. Some facilities will also have to meet performance standards to reduce the number of aquatic organisms drawn into the cooling system by 60 to 90 percent.

The rule offers facilities several compliance alternatives to meet the performance standards, including the use of restoration measures.

Restoration includes such measures as building artificial wetlands or operating a hatchery to replace the aquatic wildlife lost in the water intakes.

But the Phase I rule also contains that provision and a federal appeals court ruled earlier this month that the EPA does not have the authority to allow power plants to opt for restoration of aquatic resources in lieu of installing technology to prevent fish kills.

"The [new] rule simply invites more litigation," said Reed Super, Riverkeeper senior attorney and lead attorney in the lawsuit challenging the Phase I rule.

"EPA has made a mockery of the Clean Water Act by maximizing fish kills with the worst technology available, when it was required to do just the opposite," Super charges.

Rejecting a simultaneous challenge from industry, the court also upheld the Phase I rule's basic requirement that new plants install closed-cycle cooling or equivalent technology to minimize fish kills.

The Phase II rule allows existing plants to withdraw billions of gallons per day through their "once through" cooling systems, rather than converting to closed-cycle cooling.

The cost benefit tests used by OIRA are flawed and biased, according to Riverkeeper, and violate the Clean Water Act's "best technology" mandate.

EPA Administrator Mike Leavitt says the rule is the first time the agency has established a systematic way to address the environmental consequences of water intake by power plants. (Photo courtesy the EPA)

"This rule sets an important national standard to protect fish, shellfish, and other forms of aquatic life from death or injury," Leavitt said. "The environmental benefits of this rule include improvements to recreational and commercial fishing and are valued at about $80 million annually."

The Phase II rule signed Monday will be published in the Federal Register in a few weeks, and can be challenged in federal court two weeks after that.

Riverkeeper says it will challenge the rule and will likely seek a stay of the rule pending a court decision.

The Phase III rule, scheduled for proposal in November 2004, will cover existing electric generating plants using smaller amounts of cooling water and other facilities such as manufacturers.