States, Environmentalists Challenge Power Plant Cooling Water Rule

By J.R. Pegg

WASHINGTON, DC, July 27, 2004 (ENS) - Six Northeastern states and a coalition of environmental groups filed separate law suits Monday challenging a U.S. Environmental Protection Agency (EPA) rule that regulates the intake of cooling water by existing power plants.

Both suits charge the rule is far too lenient and fails to minimize power plant fish kills as required by the Clean Water Act.

Power plants withdraw billions of gallons daily from reservoirs, rivers and lakes to cool their turbines. The practice kills large numbers of fish and other aquatic organisms that are drawn into intake pipes along with cooling water.

The regulation being challenged is known as the Phase II rule - it applies to some 540 existing power plants that withdraw more than 50 million gallons of water per day.

"The law requires EPA to issue and enforce rules that direct power plants to use the best and most effective technology to protect our nation's waterways," said New York Attorney General Eliot Spitzer. "Once again, EPA has put the demands of power plant operators ahead of what is best for our environment. These rules violate the Clean Water Act and, if left unchallenged, will do serious harm to the aquatic environment."

Spitzer was joined by attorneys general from Connecticut, Delaware, Massachusetts, New Jersey, and Rhode Island in a petition for review filed with the 1st Circuit Court of Appeals in Boston.

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

Both the environmentalists and the attorneys general have asked EPA to stay the regulation, set to become effective on September 7, 2004, until their challenges have been considered in court.

The agency is reviewing the suits and did not comment on their merits.

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

The Phase I rule, which was finalized in 2002, called on new facilities that draw 10 million gallons of water or more a day from natural water bodies to use cooling systems with recirculated water.

These systems, known as "closed-cycle" cooling, can reduce fish kills by some 95 percent.

But the Phase II rule, finalized on July 9, allows existing plants to withdraw billions of gallons per day through their "once through" cooling systems, rather than converting to closed-cycle cooling.

It requires plants to reduce the number of aquatic organisms drawn into the cooling system by 60 percent.

Further reductions or a mandate to use closed-cycle cooling would be too expensive for the industry, according to the EPA, which estimated the Phase II rule will cost the utilities some $400 million annually to implement.

The agency estimates the environmental benefits of the rule, including improvements to recreation and commercial fishing, are worth some $80 million annually.

The environmental groups and the attorneys general say the rule's standard fails to meet the Clean Water Act's requirement that the cooling water intake structures "... reflect the best technology available for minimizing adverse environmental impact."

Connecticut Attorney General Richard Blumenthal says the rule puts the interests of the industry above the environment. (Photo courtesy Connectictu AG's Office)

"Effectiveness, not cost, should be the key factor in choosing water quality equipment," said Connecticut Attorney General Richard Blumenthal. "Once again, the Bush administration is stepping backward, compromising natural resources in deference to special interests. This surrender is unacceptable and illegal."

Both suits take aim at language in the regulation that allows facilities to meet the performance standards through the use of restoration measures, including the creation of artificial wetlands or the operation of a hatchery to replace wildlife.

The Phase I rule also contained that provision, which was struck down in February by the 2nd Circuit Court of Appeals.

The court ruled 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.

Critics of the rule contend utilities falsely assume the cost of using water from rivers, lakes and reservoirs is free. (Photo courtesy NRC)

"The Second Circuit court was very clear that the Clean Water Act requires best technology, not after-the-fact attempts at mitigation," Super said.

Federal regulation of cooling water intake has been a long time coming.

A 1972 amendment to the Clean Water Act called on the agency to create appropriate regulations - in 1977, the 4th U.S. Circuit Court of Appeals remanded EPA's first attempt at under on procedural grounds.

Environmentalists sued in 1993, filed a consent decree in 1995 and in 2001 the EPA issued the Phase I rule. Phase II was finalized in February and published in the Federal Register on July 9.

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