On May 31, EPA posted a Notice of Data Availability (“NODA”) in advance of forthcoming regulations which may provide a more flexible interpretation of Clean Water Act Section 316(b)’s Best Technology Available (“BTA”) requirement for facilities that operate cooling water intake structures (“CWIS”).
Section 316(b) requires facilities to adopt BTA minimizing adverse environmental impacts from fish being drawn into CWIS (known as entrainment) or trapped against screens at the front of an intake structure (known as impingement), where fish may be harmed or killed.
In a 2011 proposed rule governing existing power plants and manufacturing facilities, EPA recommended case-by-case, site-specific determinations of BTA to prevent entrainment, but appeared to favor the installation of travelling screens as the uniform national BTA standard for preventing impingement. Travelling screens can be costly, if not impossible, to install, depending on the size of the facility and site conditions.
In a move that would provide more options for CWIS operators, the NODA sets forth a number of alternatives to this one-size-fits-all approach to BTA for impingement. Specifically:
- In defining BTA, the new regulations may permit a facility to adopt “any technology it chooses so long as it will achieve the required impingement limitation.” EPA is also considering giving credit for impinged fish survivability and for fish that a facility excludes from becoming impinged in the first place.
- EPA may also establish a “de minimis” impingement category that would effectively eliminate BTA requirements for facilities with very low impingement rates. While most facilities would probably not fall into this category, this exemption would be critical to those that could make this showing.
- EPA is considering whether to allow establishment of impingement controls on a site-specific basis, either in all cases or limited to those circumstances in which the facility demonstrated that the national controls were not feasible. Under such an approach, rather than meeting a specific, pre-determined standard a facility could seek a site-specific BTA for both entrainment and impingement mortality.
- The permit director may be authorized to determine species of concern that would be subject to the impingement mortality standard in the rule. Other species, such as clupeidae, would potentially be excluded from the standard, a critical distinction for certain facilities and industries.
- Perhaps most significantly, EPA is suggesting a new “streamlined” regulatory process for facilities that simply opt to employ modified travelling screens with fish returns, which EPA considers to be pre-approved BTA. Here, as long as the owner or operator of a facility complies with the specified operational conditions, the impingement mortality limitations would be deemed to have been met. Subsequently, the owner or operator would not have to conduct any biological monitoring to show compliance with the impingement mortality limitations. In subsequent permit terms, and in the absence of major changes to the operation of the intake structure or the biology of the source water, EPA expects the permit director would waive any further requirement for a study or compliance monitoring for the facility.
EPA will solicit comment on the NODA, and public input will be considered before the 316(b) regulations are finalized. For more information about EPA’s cooling water intake structure regulations, contact Michael Bogin.
Scott Elliott is a Summer Associate at Sive, Paget & Riesel.