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Closing the Loop: Surfrider Foundation’s Settlement regarding 316(b) Regulations

December 17 2010 | Legal, Ocean Ecosystems,
by Angela

Surfrider Foundation fights for the protection and preservation of coastal marine life by advocating for a halt in harmful practices, such as Once-Through Cooling ("OTC"), an obsolete technology employed by some coastal power plants. Through Surfrider Foundation's Know Your H2O program, Surfrider strives to explain the connection between the environmental degradation of our coasts and our outdated water management technologies. A major part of this fight is the opposition to obsolete once-through cooling and advocating for better technologies, such as closed-cycle cooling for power plants.

On November 22, 2010, Surfrider Foundation, Riverkeeper and other environmental organizations signed 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, 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. The harmful impacts from once-through cooling has led to destabilized marine and freshwater ecosystems. For example, the 2007 Riverkeeper Report on Entrainment and Impingement at Indian Point focuses on the severe impacts caused by Indian Point’s cooling water intake and thermal discharge on Hudson fisheries. The number of fish and other marine life that could be saved each year by stronger EPA regulations on cooling water intakes is estimated to be in the billions.

The settlement requires EPA to draft new regulations. The settlement does not go so far as to dictate the content of the new EPA regulations, but does require that the rule promulgations abide by the following schedule:

Proposed regulations due: March 14, 2011
Final action due: July 27, 2012

In addition, the settlement contains the following key provisions:

• In exchange for EPA’s commitment to issue new regulations, the Plaintiffs 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 Plaintiffs informed of key milestones throughout the rulemaking process. Senior EPA staff will meet with Plaintiffs if milestones are missed by more than 10 days.

Plaintiffs intend to 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 does not degrade our coasts.

To learn more about Surfrider Foundation's efforts on Once-Through Cooling, you can click here.

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