August 18, 2011
Page 1 of 4
State Attorneys General
A Communication from the Chief Legal Officers
of the Following States:
Alabama * Alaska * Arizona * Arkansas * Colorado * Florida * Georgia * Indiana
Kansas * Kentucky *Louisiana * Michigan * Missouri * Nebraska * North Dakota
Oklahoma * Pennsylvania * South Carolina * South Dakota * Texas * Utah * Virginia
August 18, 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 Attorneys Generals of our respective States, we must take this opportunity to provide comment on the Environmental Protection Agency’s proposed cooling water intake structure rule, “National Pollutant Discharge Elimination System — Cooling Water Intake Structures at Existing Facilities and Phase I Facilities: Proposed Rule,” 76 Fed. Reg. 22,174, as published on April20,2011.
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, focusing on impingement and entrainment of fish and shellfish. Consistent with the spirit of Executive Order13132 “Federalism,” EPA explicitly requested comments on the proposed rule from state and local officials. These comments are provided in response to that request.
Since the Fourth Circuit remanded EPA’s section 316(b) regulations in 1977, it has been the NPDES permitting authorities that have made implementing decisions under section 316(b) on a case-by-case, site-specific basis. EPA published draft guidance addressing section 316(b) implementation in 1977. See, Draft Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment: Section 316(b) Pub. L. 92-500 (U.S. EPA, 1977). This case-by-case approach was also consistent with the approach described in the 1976 Development Document referenced in the remanded regulation.
Furthermore, the historical case-by-case approach reflects a reasonable interpretation of section 316(b) itself. Whereas the language of the effluent limitations sections 301 and 306, which are cross-referenced in section 316(b) and heavily relied upon by the Supreme Court to shed light on the factors to be considered in establishing performance standards, makes clear that it is the duty of the Administrator to establish effluent limitations by regulation, section 316(b) is devoid of any such reference. Given the limited, universe-defining purpose of section 316(b)’s cross-reference to sections 301 and 306 and Congress’ explicit inclusion of regulation-setting authorization for the Administrator in those sections, it is reasonable to conclude that Congress intended for the state permitting authority, using best professional judgment to make the determination as to what constitutes the best technology available for cooling water intake structures.
The proposed BTA performance standards consist of ranges of reductions in impingement mortality and/or entrainment relative to a calculated baseline (that which occurs absent specific controls). EPA’s proposed Phase II BTA performance standards “were not based on a single technology but, rather, on consideration of a combination of technologies that EPA determined were commercially available and economically achievable for the industries affected as a whole.” 76 Fed. Reg. 22180-81.
EPA is obliged 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, pursuant to the cooperative federalism scheme created by the Clean Water Act, EPA and state environmental regulators 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.
EPA’s proposed approach to minimize the impacts of entrainment recognizes this experience by leaving the ultimate decision on what constitutes “best technology available” (BTA) at a given site to state environmental regulators. But in addressing impingement, EPA abandons this approach and proposes inflexiblenational numeric standards for mortality and intake velocity that are unrealistic and unachievable in many cases. By prescribing BTA on a national scale and basing performance limits on that determination, EPA’s proposed approach to minimizing 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 BTA.
While EPA has not gone so far as to mandate the retrofitting of closed-cycle cooling at all facilities covered by the proposed rule, it has created an inflexible approach for minimizing impacts due to impingement of aquatic organisms by cooling water systems. The decision to establish uniform national numeric mortality rates and intake velocity limits to apply to cooling water intake structures runs contrary to 30 years of agency policy, including the position taken by the agency in the 2008 United States Supreme Court Riverkeeper decision. In the longstanding Guidance issued by the EPA and used by the State permitting authorities for three decades, supra, the agency acknowledged that “the exact point at which adverse aquatic impact occurs at any given plant or site or water body segment is highly speculative and can only be estimated on a case –by-case basis by considering the species involved, magnitude of the losses, years of intake operation remaining, ability to reduce losses, etc.”
In Riverkeeper the agency vehemently argued for, and the Supreme Court acknowledged as appropriate, the use of cost-benefit analysis in the context of the cooling water intake structure variance provision. Thus, a cost-benefit analysis is already embedded in the cooling water intake program. In now proposing national numeric standards andabandoning the use of cost-benefit analysis at the technology-setting stage, EPA will undoubtedlyincrease the number of variances applied for by regulated facilities, the additional workload for which will be borne by the state permitting authorities. Rather than deal with the issue indirectlyvia the variance provision, the states should be allowed to address the issue of economic feasibility upfront by setting the BTA standards on a case-by-case basis, as they have done for the past three decades.
State permitting authorities must be left with the discretion to perform site-specific assessments to determine the BTA 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. Also, the final regulations should not require any facility that already employs “closed cycle cooling” to meet the proposed impingement or entrainment requirements, by utilizing a broad definition for “closed cycle cooling”that includes such systems as cooling towers, cooling ponds, and cooling basins.
In today’s difficult economy, environmental policy should not dictate overspending on nationallyprescribed solutions to local issues, especially when more effective and flexible approaches are available. EPA’s proposed rule could unnecessarily raise electricity costs for financially strapped consumers. Moreover, EPA’s adoption of an inflexible, national standard for impingement would undermine the coordinated federalism for protection our nation’s waterways created by the CWA.
Therefore, we strongly oppose the approach taken by the proposed rule and seek a final rule that preserves the authority and flexibility vested in our state environmental regulators to protect the environment while balancing the impact on consumers and economic growth.
Thank you for your personal attention to this matter.
Sincerely,
Dustin McDanielJon Bruning
Arkansas Attorney GeneralNebraska Attorney General
Luther StrangeJohn J. Burns
Alabama Attorney GeneralAlaska Attorney General
Tom Horne John W. Suthers
Arizona Attorney GeneralColorado Attorney General
Pam BondiSam Olens
Florida Attorney GeneralGeorgia Attorney General
Greg ZoellerDerek Schmidt
Indiana Attorney GeneralKansas Attorney General
Jack ConwayJames “Buddy” Caldwell
Kentucky Attorney GeneralLouisiana Attorney General
Bill SchuetteChris Koster
Michigan Attorney GeneralMissouri Attorney General
Wayne StenehjemScott Pruitt
North Dakota Attorney GeneralOklahoma Attorney General
Linda L. Kelly Alan Wilson
Pennsylvania Attorney GeneralSouth Carolina Attorney General
Marty J. JackleyGreg Abbot
South Dakota Attorney GeneralTexas Attorney General
Mark ShurtleffKenneth T. Cuccinelli, II
Utah Attorney GeneralVirginia Attorney General