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316b Cooling Water Intake Regulations Challenged Again for Fish Kills They Allow


September 2013, a coalition of environmental groups including the Delaware Riverkeeper Network, filed three lawsuits in federal courts around the country (New York, San Francisco and Boston) seeking to force the U.S. Environmental Protection Agency to establish a clear standard that better protects the hundreds of aquatic species near the nation’s 1,065 power plants and other facilities. 

More than five hundred of America’s oldest and dirtiest power plants still use “once-through” cooling systems — Salem Nuclear Generation Station, Delaware City Refinery, and Mercer Powerplant on the Delaware River are among them.

These plants, along with others across the nation, withdraw trillions of gallons of water from our nation’s rivers, lakes, estuaries and marine waters each year, destroying billions of fish, shellfish and other marine life. The death toll includes hundreds of endangered species of fish, mammals, and sea turtles. Some of these species are being pushed to the very brink of extinction by once-through cooling. 

“Closed-cycle” cooling, on the other hand, is a widely used and proven technology that has been available for decades and can reduce fish kills, habitat disruption, and water withdrawals by 95% or more. Despite this fact, and decades of legal battles, EPA’s new rule, issued under Clean Water Act Section 316(b) and published on August 15th, once again fails to establish technology requirements that protect aquatic life in our rivers and oceans from destructive industrial cooling water intakes. EPA should have set a clear standard that requires closed-cycle cooling as the “best technology available” for minimizing these severe impacts. But EPA’s rule leaves it to resource-strapped state agencies to determine what technology is required on a site-specific basis. 

“EPA acknowledges that closed-cycle cooling is the most protective technology, and the agency’s own regulations have long required new plants to use it,” said Reed Super, lead attorney for many of organizations joined in this action.

Delaware Riverkeeper Maya van Rossum stated: “Facilities on the Delaware River and throughout the nation have been getting away with the needless slaughter of billions of fish — on the Delaware River there is one facility which alone kills over 3 billion fish a year, imagine the impacts nationwide of these operations. While these facilities are allowed to kill indiscriminately, commercial and recreational fisherfolk are limited in what size, how many and what species of fish they can take. Instead of addressing this horrible inequity, EPA, through its rules, is perpetuating it.” 

“The time has come to stop putting industry and big business before community interests and healthy ecosystems,” said Debbie Mans, Baykeeper and Executive Director of NY/NJ Baykeeper. “EPA’s ruling has failed its purpose in reducing significant environmental risks. Instead, billions of fish and other marine life will be killed and the effects, nationwide, may be irreversible. The environmental community certainly isn’t going to stand by and let that happen.” 

The Background

On November 22, 2010, Riverkeeper and other environmental organizations signed a settlement agreement with the EPA that resolved two lawsuits they brought against the agency in 1993 and 2006 addressing its failure to issue regulations implementing Section 316(b) of the Clean Water Act for existing power plants and other industrial facilities. This section of the Clean Water Act requires industry to employ the “best technology available” for minimizing the adverse environmental impact of their cooling water intake structures. In 2001, EPA had issued regulations requiring all new facilities to use closed-cycle cooling, but EPA’s first attempt at existing facility regulations were send back to the agency by the courts as legally insufficient. In the 2010 settlement, EPA agreed to draft new regulations for existing facilities by March 14, 2011, and to take final action regarding the new regulations by July 27, 2012. EPA issued its final rule in May, 2014. 

In the 2014 rule, EPA failed to set a clear standard, leaving it completely to the discretion of state regulators to determine what cooling water intake technology is best on a case by case basis. This failure subverts the entire purpose of the 316(b) regulation, to have a national baseline standard that provides all waterways the highest level of protection. Federal agencies responsible for protecting endangered species found that 266 threatened and endangered species are affected by power plants with once-through cooling, with the effects ranging from direct injury to habitat degradation and destruction of other aquatic species relied on as part of the aquatic food chain.  

For decades, the power industry has campaigned against updating regulations to protect biologically and economically important aquatic ecosystems from further damage from industrial cooling water intakes. Industry argues that more environmentally protective regulations will force plants across the country to shut down and threaten the reliability of the nation’s electricity supply. But studies by EPA and by outside groups showed that the gradual move to closed-cycle cooling under this rule would have little or no impact on the power grid. In fact, EPA concluded that moving to closed-cycle cooling will actually reduce the vulnerability of the American power sector to droughts and climate change.


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