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New Regulations to Stop Fish Kills Because of 316(b) Settlement

Settlement with EPA on Cooling Water Intake Regulations Announced

Agreement Paves Way for New Regulations to Protect Aquatic Species by 2012
On November 22, 2010 the Delaware Riverkeeper, Hudson Riverkeeper and other environmental organizations entered into a settlement agreement with the Environmental Protection Agency (EPA) that resolves two lawsuits brought against the EPA in 1993 and 2006 addressing the agency’s failure to issue regulations implementing Section 316(b) of the Clean Water Act.  This section of the Act requires power plant operators and other large industrial water users to employ the “best technology available” for minimizing the adverse environmental impact of their operations on aquatic ecosystems.  Currently, cooling water intakes at hundreds of facilities across the country take in huge volumes of water from vital ecosystems like the Delaware River, resulting in the destruction of huge numbers of fish and other aquatic species at all life stages from being “impinged” against intake screens or “entrained” through the facility cooling system. Decades of such impacts have contributed to declining fish populations and destabilized marine and freshwater ecosystems. For example, the Salem Nuclear Generating Station sucks in over 3 billion gallons of Delaware River water a day, and as a result kills over 3 billion Delaware River fish a year.  The number of fish and other aquatic creatures that could be saved each year by stronger EPA regulations on cooling water intakes is estimated to be in the billions — here on the Delaware we know that to be the case.  
In the settlement, the 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.  In addition, the settlement contains the following key provisions.

  • In exchange for EPA’s commitment to issue new regulations, the environmental organization plaintiffs, including the Delaware Riverkeeper Network, agreed to dismiss both cases, but retained the right to reopen the 1993 lawsuit if the EPA misses either deadline.
  • EPA will solicit public comment on whether to subject the cooling water intakes at these facilities to national performance standards.
  • EPA will keep the environmental co-plaintiffs informed of key milestones throughout the rulemaking process.  Senior EPA staff will meet with environmental representatives if milestones are missed by more than 10 days.

The substance of the new regulations is not a part of the settlement agreement and will be subject to public notice and comment.  The Delaware Riverkeeper Network will provide input to EPA throughout the public process to ensure that new regulations will result in long-overdue requirements for existing power plants and other facilities that significantly improve environmental protection.  Modernizing cooling water intakes is an important part of the larger effort to transition to a sustainable energy supply that is more efficient and meets our energy needs without continuing to degrade our precious natural resources.
The new regulations should set a performance standard based on closed-cycle cooling for all industrial water users that can reasonably bear the costs of the technology.  Upgrading an industrial facility from its current “once-through” cooling system to a “closed-cycle” system reduces the amount of water withdrawn and the resulting impact on aquatic life by 95-98%, drastically reducing the destruction of aquatic species and removing a long-term threat to the ecosystem permanently.  

Closed-cycle cooling is a proven, reliable technology that has been in use at power plants around the country for decades.  Nearly half the nuclear power plants currently operating use closed-cycle systems.  For the Salem Nuclear Generating station a change to closed cycle cooling would, according to state commissioned experts, reduce their fish kills by 95%.
Rather than gradually adjusting and incorporating new technology into its operating fleet over the last 40 years, the power plant industry has actively fought any attempt by the EPA or individual states to require modernization of power plants’ cooling water intake systems.  Things need to change.  Our fish are important for the health and safety and economy of our communities and region.  The new draft regulations are a chance for EPA and the nation to get it right — Delaware Riverkeeper Network will be working hard to ensure the right outcome.