EPA Cooling Water Intake Comments

June 16, 2011

U.S. Environmental Protection Agency
Water Docket
Mail Code: 4203M
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Attn: Docket ID No. EPA-HQ-OW-2008-0667

Dear Administrator Jackson:

As Co-Chairs of the Energy Supply Task Force of the National Conference of State Legislatures we are pleased to provide these comments on the proposed Environmental Protection Agency rulemaking published in the Federal Register on April 20, 2010. The proposed rule would require power plants and other industrial or manufacturing facilities to minimize adverse environmental impacts associated with the operation of cooling water intake structures.

In December of 2010 we wrote to you urging that this rule, when proposed, strongly recognize the importance of state diversity in regulating and considering impacts of such a rule. We referenced our 2010 comprehensive study of energy supply in the United States and the geographical and environmental diversity of supply sources and the importance of flexibility allowing states to regulate water and other environmental issues.

While we commend EPA for not mandating the retrofitting of closed-cycle cooling at all facilities covered by the proposed rule, we remain extremely concerned about the inflexible approach proposed to minimize impacts due to the impingement of aquatic organisms in cooling water systems.

In anticipation of the proposed rule, we urged EPA to avoid a rigid, one-size-fits-all approach to minimizing the environmental impacts associated with the operation of cooling water intake structures. For more than 30 years, EPA and state permit writers have applied a site-specific approach to managing the impacts of existing cooling water intakes on aquatic environments. State environmental regulators have significant experience in minimizing adverse environmental impacts and making sound decisions that protect our aquatic ecosystems. This approach is equally appropriate to this rulemaking.

EPA’s proposed approach to minimizing the impacts of entrainment recognizes this experience – leaving the ultimate decision on what constitutes “best technology available” (BTA) at a given site to the state permitting authority. Although there may be room for additional improvement to the proposed entrainment standard, from a public policy perspective, EPA’s proposed approach appropriately leaves local resource management decisions to state decision makers by facilitating decisions based on meaningful, site-specific cost-benefit analysis.

Unfortunately, the proposed approach to minimizing impingement impacts undermines the flexibility provided in entrainment provisions by prescribing best technology available on a national scale and basing performance limits on that determination. This approach to impingement takes the technology determination out of the states’ hands, and provides no credit for impingement reduction technologies that have already been approved by the states as best technology available. Instead, the final rule should provide state environmental regulators with the discretion to perform site-specific assessments to determine the best technology available for both impingement and entrainment. This would allow consideration of a range of factors that vary on a site-by-site basis, such as the cost of a specific technology at a facility and the likely benefits of that technology, given the unique mix of species in the water body. This approach would also provide consistency between the entrainment and impingement provisions, allowing permitting authorities to work with companies to develop holistic solutions to the related issues of entrainment and impingement impacts.

Short of allowing state BTA determinations for impingement, the regulations must be modified to provide compliance flexibility for any national limits on impingement mortality or water intake velocity. Such flexibility should allow permitting authorities to take site-specific factors into account in circumstances where the costs of modifications necessary to meet the national limits clearly outweigh the benefits. Without such flexibility, facilities that already have greatly reduced impingement and entrainment under state regulatory programs may be required to make additional modifications that yield little environmental benefit, yet impose significant costs.

In today’s difficult economy, our environmental policy should not require overspending on nationally prescribed solutions to local issues, especially when more effective and flexible approaches are available. Such an approach could unnecessarily raise electricity costs for financially strapped consumers. Therefore, we strongly urge EPA to develop a final rule that allows state environmental regulators to protect the environment while balancing the impact on consumers.

Thank you for your personal attention to this matter.


Rep. Al Carlson
Majority Leader,
North Dakota House of Representatives

Rep. Tom Holbrook
Chair, Environment and Energy Committee
Illinois House of Representatives

PDF Version