EPA Moving Forward on Cooling Water Intake Standards

December 8, 2009
by CHRISTOPHER BALL
Client Alert Newsletter December 2009

In the latest step of a multi-tiered regulatory process enmeshed in legal challenges, the U.S. Environmental Protection Agency ("EPA") has indicated that it plans to propose a rule in mid-2010 regulating cooling water intake structures at thousands of power plants and manufacturing facilities across the nation.

The current rulemaking process follows an April 1, 2009 U.S. Supreme Court ruling, in which the Court reviewed EPA's use of cost benefit analyses when setting national performance standards for cooling water intake structures under section 316(b) of the Clean Water Act. In ruling that EPA could permissibly consider costs and benefits, the Court reversed an earlier ruling by the U.S. Court of Appeals for the Second Circuit that had greatly limited the Agency's discretion. The Supreme Court ruling also supported EPA's previous determination not to mandate the use of closed-cycle cooling water towers for the existing power plants using more than 50 million gallons per day of cooling water that were subject to the EPA rule at issue.

EPA subsequently asked the Court to remand the cooling water rule for agency reconsideration, and is concurrently reviewing a separate rule, issued in June 2006, that addressed cooling water intake structures at smaller power plants and other existing manufacturing facilities. While EPA had previously determined that uniform national cooling water intake structure standards were not warranted for the smaller power plants and existing manufacturing facilities, it has since indicated that the Obama Administration is seeking a comprehensive look at the regulation of all existing facilities under section 316(b), leaving the scope and framework of the anticipated rulemaking unclear.