POWER November 2012 - 72

COMMENTARY
Preparing for the EPA's
Cooling Water Rule
By Harold M. Blinderman, JD
W
ith the U. S. Environmental Protection Agency's (EPA's)
issuance of a final rule regulating cooling water intake
structures at existing facilities potentially less than a
year away, facilities should be paying close attention to the proposed
rule's provisions, data requests, and study requirements as
they evaluate their compliance options and begin to formulate
their compliance strategy.
Overview of Proposed Rule
The proposed rule's primary purpose is to regulate existing facilities
utilizing once-through cooling water systems. The rule, as
proposed, applies to all existing power plants and manufacturing
facilities that have the design capability to withdraw more
than 2 million gallons per day (mgd) from U.S. waters and use
at least 25% of such water exclusively for cooling water purposes.
The EPA states that 355 facilities across the U.S. employ
once-through cooling. Of the 104 operating U.S. nuclear units,
60% use once-through cooling systems, according to the Nuclear
Energy Institute.
Under the proposed rule, permitting authorities will use their
best professional judgment in selecting the best technology
available (BTA) to reduce entrainment, the incidental drawing
of fish and other aquatic organisms into a power plant's cooling
water system. Consequently, while the EPA's draft rule does
not identify closed-cycle cooling or any other technology as the
national standard for minimizing entrainment, the ultimate decision
on how best to reduce entrainment at a particular facility
will be made, in most instances, by state environmental protection
agencies after reviewing all the information before them.
Focusing on Entrainment Reduction
It is incumbent upon facility managers to begin developing their
overall approach from the very first submittal required by the
proposed rule. Provisions in the proposed rule allow for consideration
of a number of technical, biological, and economic factors
that may help a facility develop its site-specific approach
to entrainment.
The proposed rule recognizes that energy reliability, increased
air emissions, land availability, and remaining useful plant life
are four key factors, among others, that the permitting authority
must consider in making any decisions regarding BTA for reducing
entrainment. Furthermore, the proposed rule provides that
the permitting authority may reject an otherwise BTA (or not
require any BTA controls) if the control costs are not justified by
the benefits. Thus, any compliance strategy must fully consider
these issues.
In addition, if a nuclear facility can show that compliance
with the proposed rule conflicts with a U.S. Nuclear Regulatory
Commission safety requirement, the proposed rule provides
that either the EPA or state permitting authority must
make a site-specific BTA determination for minimizing adverse
72
environmental impact without conflicting with the facility's
safety requirements.
All plants subject to the proposed rule must be mindful of
the numerous application studies that will be triggered once
the rule is issued, which, at present, is likely to occur in the
summer of 2013. The permitting authority will use these submittals
to assess the entrainment impacts of a facility's cooling
water intake structure and to reach a determination regarding
the appropriate technological and operational controls to be
implemented at the facility.
Importantly, the amount of information requested is tied to
a facility's intake flow. The greater the design and actual intake
flow, the more studies are required. Facilities should be aware
that, within six months of the final rule's effective date, plants
with a design intake flow of 50 mgd or more must initially submit
a wide range of information, including studies to describe the
source water body, cooling water intake structures, and cooling
water system; characterization of the biological community
in the vicinity of the cooling water intake structure; a plan for
controlling impingement mortality; a description of biological
survival studies addressing technology efficacy and other studies
on impingement and entrainment at the facility; and a discussion
of the operational status of the facility.
Following these submittals, facilities that fall within this category
and also withdraw more than 125 mgd, and existing facilities
with new units, have more work to do. The proposed rule
calls for the development of information leading to the submittal
of an entrainment characterization study within four years
and comprehensive studies assessing technical feasibility, costs,
and benefits of installing various technological and operational
controls within five years of the final rule's effective date. These
reports will be critical to any agency BTA assessment, and it is
within the discretion of the permitting agency to move up these
reports' timetables.
Throughout this process, facility owners and operators should
be very aware of federal and state regulatory preferences in developing
an overall compliance strategy reflecting the individual
facility's specific circumstances. For instance, California and New
York have policies in place favoring closed-cycle cooling technology
or achieving reductions in intake flow or entrainment
mortality to levels commensurate with closed-cycle cooling.
Facilities Need to Advocate Site-Speciic Plans
The information submitted by a facility as required by the proposed
rule will form the basis for the permitting agency's determination
about what constitutes BTA for entrainment. As any
BTA determination will be based upon the permit writer's best
professional judgment, facilities have the opportunity to " make
their case " based on site-specific economic, technical, and biological
findings as developed throughout the entire process. ■
-Harold M. Blinderman, JD (hmblinderman@daypitney.com) is
a partner at the Day Pitney law firm in Hartford, Conn.
www.powermag.com
POWER | November 2012
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POWER November 2012

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