Keep 316(b) Flexible to Protect the Environment

Affordable, reliable, clean energy and clean air and water are all critical ingredients for America’s economic success. As we make the transition to clean energy, the Environmental Protection Agency (EPA) faces a difficult task in finding the right balance of clean water, air and carbon pollution regulations. In some instances, these three goals come into conflict. That is why we are deeply concerned that an upcoming EPA ruling on water regulations could end up undermining its other missions.

EPA is currently revising regulations implementing the Clean Water Act’s section 316(b), which is meant to minimize the adverse environmental impact of cooling water intake structures found at power plants and other facilities that use large amounts of water to cool their plants. This narrow decision could have broad and serious consequences for the American public: the closure of clean power plants, continued reliance on fossil fuels, undermining of EPA’s efforts to keep our air clean and reduce carbon pollution, and billions of dollars spent in higher electricity prices.

What is 316(b)?

316(b) is a section of the Clean Water Act that seeks to minimize adverse environmental impacts on fish and other aquatic life by power plants and industrial facilities that use large amounts of water for cooling.¹ The rules implementing 316(b) affect any type of power plant that uses steam to move a turbine, including coal, natural gas, and nuclear power plants. 316(b) requires the location, design, construction, and capacity of cooling water intake structures reflect the “best technology available” for minimizing adverse environmental impacts.²

EPA has been developing these regulations since the early 1990s in three separate phases.³ The first phase covered new and second large existing power plants. Now, EPA is revising the Phase II regulation. According to EPA, Phase II could affect as many as 550 power plants, which the North American Electric Reliability Corporation predicts will reduce electricity capacity by 49,000 megawatts⁴ or 4.3% of generation capacity.⁵ The majority of these plants are large coal and nuclear plants.⁶

To date, one of the most important aspects of the original Phase II regulation has been its flexibility allowing utilities to employ different technological options and the ability to use a cost-benefit test to determine the most effective way to comply.⁷ This is essential because every power plant is different, and every water body is different.

When EPA rules required that facilities use the “best technology available,” they previously allowed permitting authorities to weigh costs and benefits of several technologies before making final decisions. An environmental group sued for a more narrowly-defined cost test when selecting “best technology available.”⁸ In 2009, the Supreme Court ruled that EPA may consider costs, but did not require them to do so.⁹ This effectively allowed EPA to decide whether and how to weigh costs and benefits in its new regulations for existing power plants.¹⁰

As EPA finalizes its regulation for existing facilities, there are indications its revised rule will be much less flexible than before. This could very well mirror the California State Water Board’s state-wide policy that effectively defined “best technology available” for coastal power plants narrowly as closed-cycle cooling, which requires cooling towers.¹¹ This policy requires all plants that use once-through cooling systems to perform costly retrofits that will lead to unintended negative environmental consequences. We are concerned that this policy could influence the federal approach.

For instance, cooling towers have environmental impacts of their own, including increased particulate emissions.¹² These particulate emissions may prevent cooling towers from being permitted under the Clean Air Act and state and local air quality regulations.¹³ Additional environmental considerations of cooling towers include space limitations, noise, aesthetics, increased water consumption and increased CO2 emissions from the new capacity that would be necessary to replace energy lost due to tower retrofits. Additionally, retrofitting cooling towers often results in an output capacity reduction of anywhere between 1-5.8%.Taken together, any mandate to retrofit cooling towers brings with it increased reliability concerns.¹⁴

Potential impact of 316(b) regulation

A national mandate requiring cooling towers could affect all electric facilities that use steam turbines but do not have closed-cycle cooling—more than 500 plants spread across the United States.¹⁵ The rule being considered is worrisome because it would force clean power offline and drive up the cost of electricity.

First, the retrofitting of these power plants would take clean power sources offline when they are badly needed. This would include 60% of the existing nuclear plants capacity that produce electricity with virtually no air or carbon pollution.¹⁶ Many affected power plants could be taken offline forever either because the costs would be too high, or because their location makes retrofitting impossible.¹⁷ Plants that are eligible for retrofits would be taken offline for months or even years while they are rebuilt and re-permitted.¹⁸ Without these sources of power, we would have to bring online less efficient, fossil-fueled units.¹⁹

Second, 316(b) could have serious environmental consequences that should be considered in EPA’s analysis. Closed-cycle cooling is not the panacea it appears to be. Even though closed-cycle cooling recycles water, it can increase power plant water consumption²⁰ and, in effect, reduce the habitat of marine life.²¹

Third, based on earlier EPA analysis of Phase II regulations, retrofits for existing power plants could raise energy prices for consumers. The industry initially estimates that retrofitting all of the plants that could be affected by 316(b) would require a capital investment of between $50 billion and $100 billion—followed by additional costs for permitting.²² Consumers in many states would bear the costs for this requirement.

Recommendations

• Maintain flexibility in technologies used to protect aquatic life. There are a number of technologies available that can help protect aquatic life near power plants. These include physical barriers, diversion systems, behavioral barriers, collection systems and operational changes such as wedgewire screens, barrier nets, velocity caps, sound, light and electric fields, velocity reduction and fish return systems.²³ In many instances, these technologies can protect fish and aquatic life as effectively as cooling towers. Utilities should be allowed to explore a menu of technology options to protect marine life, and to consider options that are most appropriate for the individual plant and the ecosystem where it is located.
• Allow the definition of best technology available to be site-specific. Where one technology might be ideal at one power plant, it might not be right for another plant. It is important to not get boxed into using the same technology at each site when each plant has different environmental and engineering conditions and needs that should be considered. Each site should be allowed the opportunity to work with EPA and permitting authorities to assess their best options for protecting aquatic life.
• Continue to allow costs and benefits to be weighed in the permitting process. The proposed rule has the potential to shut down functional power plants that are providing clean energy to the grid. Costs and benefits should continue to be an important part of the permitting process to ensure that we are not unintentionally giving up a benefit like clean energy to protect marine life when there are other less costly methods that achieve the same goal.