By: Nathaniel Eisen

On July 23^rd, 2018, the Second Circuit rejected multiple challenges to the Environmental Protection Agency’s (“EPA’s”) final rule setting technological standards to prevent aquatic organism deaths in the cooling systems of power plants and manufacturing facilities  (the “Cooling Water Intake Rule” or “Rule”). The 2014 Cooling Water Intake Rule, the culmination of 40 years of previous versions and legal challenges, applies to existing facilities withdrawing more than 2 million gallons of water a day.

The 1972 amendments to the Clean Water Act require EPA to set standards establishing the “Best Technology Available Technology” (“BTA”) to minimize adverse environmental impacts from cooling water intake structures, which take up water for cooling and discharge it, heated, back into aquatic environments. As with other discharge standards, implementing permits were to largely be issued by states pursuant to the National Pollutant Discharge Elimination System (“NPDES”), though EPA would issue the permits in some areas.

Cooling water intake structures contribute to the death of aquatic organisms both through heated discharges and through “entrainment” of aquatic organisms that are sucked through filters and “impingement” of aquatic organisms that strike the exterior of filters.  Reusing water, by storing it in reservoirs or tanks until heat dissipates (“closed cycle cooling”) can reduce aquatic organism mortality by 95%. The EPA adopted closed cycle cooling, with some flexibility, as the BTA for new facilities in a previous rule. 40 C.F.R. § 125.84. In the Cooling Water Intake Rule, EPA declined to require closed cycle cooling for existing facilities (and new units at existing facilities), based in part on limited physical space or zoning restrictions at many sites.

The Rule directs the EPA and states to make site-specific determinations of the BTA to prevent entrainment, based on a list of five mandatory and six discretionary factors. Similarly, the Rule establishes modified screens as a general BTA to prevent “impingement,” though it gives EPA and states the option of finding a different technology to be the BTA at a specific site.

The environmental groups argued that EPA violated its statutory obligations by failing to establish one national standard; that EPA’s consideration of physical space restrictions at facilities was unreasonable; and that the Rule impermissibly granted too much discretion to states. The court found that the text of the statute did not require EPA to establish one uniform standard; that EPA was reasonable in considering space constraints; and that the combination of mandatory and discretionary factors, coupled with the possibility of agency review, did not grant states too much discretion.

Accordingly, the court upheld EPA’s requirement of a permit-specific evaluation of ESA compliance.

The lengthy regulatory and litigation history of EPA’s of cooling water intake structure rules is discussed in the Second Circuit opinion.

For more information about EPA’s cooling water intake structure regulations, contact Michael Bogin.

Nathaniel Eisen is an SPR Summer Associate.