April 2011

ENVIRONMENTAL ALERT EPA PROPOSES REVISED COOLING WATER INTAKE RULES FOR EXISTING POWER PLANTS AND MANUFACTURING FACILITIES
Following many years of litigation and various revisions, on March 28, 2011 United States EPA issued proposed rules concerning cooling water intake for both existing power plants and manufacturing facilities pursuant to Section 316(b) of the Clean Water Act. The rule, as in prior versions, focuses on preventing fish and shellfish from entrainment (being drawn through the cooling system) and impingement (being trapped against intake screens) associated with cooling water intake structures. The proposed rule affects existing power plants and manufacturing facilities that generate electricity or manufacture other goods and that also withdraw at least 2 MGD of cooling water (where at least 25% of the water is exclusively used for cooling). The rule has four major components including: 1) Imposes a technology based standard and requires use of Best Technology Available to limit entrainment and impingement. 2) For impingement, the BTA requirement can be met by meeting an impingement mortality limit of not more than 12% on an annual average basis and not more than 31% on a monthly average basis. An alternate option is to show that the intake system has a maximum intake velocity of 0.5 feet per second or less. 3) For entrainment, the BTA requirement will be addressed on a case-by-case basis for existing facilities. For new units at existing facilities, the facility will be required to reduce intake flow to a level equivalent with a closed-cycle recirculating system, or use technology that will reduce entrainment mortality to a level of at least 90% of the reductions achievable with a closed-cycle system. 4) Additionally, facilities withdrawing at least 125 MGD will be required to conduct studies to assist their permitting authority to determine the appropriate site-specific entrainment mortality controls. This proposed rule will likely cover a larger number of facilities than the earlier proposed rule, which set a threshold of 50 MGD for withdrawal of cooling water as compared to 2 MGD in the current proposal. EPA estimates this proposed rule will cover 1,260 existing facilities, including power plants and manufacturers of such things as aluminum, iron, steel, petroleum, paper, chemicals and food processing. In addition the earlier proposal provided greater flexibility in terms of technology selection without imposition of the specific numeric impingement limits as required in this proposal. EPA is accepting comments on the proposed rule for 90 days following its publication in the Federal Register, which is expected soon. EPA anticipates issuing the rule in final by July 2012. Our team of environmental attorneys continues to track the development of this rule and will issue an update to this Alert when the final rule is issued to include, as appropriate, differences between the proposed and final rule, the scope of affected facilities and implementation schedules.

April 2011

ENVIRONMENTAL ALERT
Should you have any questions regarding this rule or its impacts on your particular facility or business please contact our environmental attorneys listed below. The Environmental Alert is intended to keep readers current on matters affecting environmental issues and is not intended to be legal advice. For information or assistance regarding any of the information noted above, please contact Scott R. Dismukes at 412.566.1998 or sdismukes@eckertseamans.com, Richard S. Wiedman at 412.566.5967 or rwiedman@eckertseamans.com, David A. Rockman at 412.566.1999 or drockman@eckertseamans.com, Kathryn L. Clark at 412.566.6188 or kclark@eckertseamans.com, Erin W. McDowell at 412.566.6070 or emcdowell@eckertseamans.com, Jessica L. Sharrow at 412.566.5941 or jsharrow@eckertseamans.com or any other attorney with whom you have been working. Eckert Seamans Cherin & Mellott, LLC, 2011, all rights reserved.