Environmental
FEBRUARY 2002
EPA Imposes Requirements for
Cooling Water Intake Structures at New Facilities
The United States Environmental Protection Agency
facilities and new industrial manufacturing facilities,
(“EPA”) promulgated final regulations governing
including (but not limited to) textile mills, chemical
cooling water intake structures for new facilities
manufacturing facilities, petroleum refiners, and
pursuant to section 316(b) of the Clean Water Act
primary metal industries.
(“CWA”) on December 18, 2001. See 66 Fed. Reg.
65,256. These new regulations, which became
effective on January 17, 2002, establish technologybased performance requirements for cooling water
intake structures at new facilities in order, according to
EPA, to minimize adverse impacts to aquatic organisms
caused by such structures.
EPA issued these new regulations, in part at least, to
APPLICABILITY OF
THE NEW REGULATIONS
EPA’s new regulations apply to the owner or operator
of a “new facility” that has or is required to obtain a
National Pollutant Discharge Elimination System
(“NPDES”) permit if the facility:
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cooling water intake structure;
fulfill its obligations under an amended consent decree
entered on October 10, 1995 by the United States
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District Court for the Southern District of New York in
Has at least one cooling water intake structure that
uses at least 25 percent of the water it withdraws for
Riverkeeper Inc., et al. v. Whitman (No. 93-Civ-0314).
cooling purposes (see below); and
The consent decree also requires EPA to propose
regulations for existing power plants that use large
Is a point source that uses or proposes to use a
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Has a design intake flow of greater than two million
gallons per day.
volumes of cooling water by February 28, 2002 and to
take final action on such rules 18 months later.
See 66 Fed. Reg. at 65,338 (new 40 C.F.R. § 125.81(a)).
The technology-based requirements contained in the
If your facility is a “new facility” as defined by EPA (see
new regulations are intended to reduce impingement
below) and satisfies these three criteria, it will be subject
and entrainment of aquatic organisms. Impingement
to the requirements of EPA’s new rule.
occurs when organisms are trapped against intake
screens by the force of the water passing through a
WHAT IS A “NEW FACILITY”?
cooling water intake structure. Entrainment occurs
Under the new regulations, a “new facility” is any
when organisms are drawn through a cooling water
building, structure, facility or installation that:
intake structure into a cooling system.
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Meets the definition of a “new source” or “new
According to EPA, the new regulations are expected
discharger” in EPA’s existing regulations at 40
primarily to affect new steam electric generating
C.F.R. §§ 122.2 and 122.29(b)(1), (2) and (4);
Kirkpatrick & Lockhart LLP
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Is a “greenfield” or “stand-alone” facility;
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Commences construction after January 17, 2002; and
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Uses either a newly constructed cooling water intake
additional cooling water.
See 66 Fed. Reg. at 65,339 (new 40 C.F.R. § 125.83).
structure or an existing intake structure whose
In contrast, EPA provides the following example of a
design capacity is increased to accommodate the
facility that would not be considered a “new facility”
intake of additional cooling water.
under the rule:
See 66 Fed. Reg. at 65,339 (new 40 C.F.R. § 125.83).
Because the definition of “new facility” is limited to
“greenfield” and “stand-alone” facilities, the new
regulations will not necessarily apply to all facilities
that are “new sources” or “new dischargers” under
EPA’s existing rules. Rather, the new rule applies to
“new sources” and “new dischargers” only if they are
“greenfield” or “stand-alone” facilities and satisfy the
other applicability criteria.
According to EPA’s definition of “new facility,” a
“greenfield” facility is a facility that is “constructed at a
A facility has an existing intake structure. Another
facility (a separate and independent industrial
operation), is constructed on the same property and
connects to the facility’s cooling water intake
structure behind the intake pumps, and the design
capacity of the cooling water intake structure has not
been increased. This facility would not be considered
a “new facility” even if routine maintenance or
repairs that do not increase the design capacity were
performed on the intake structure.
Id. at 65,339-40.
site at which no other source is located, or that totally
As these examples illustrate, the key issue for EPA in
replaces the process or production equipment at an
determining whether a project that uses an existing
existing facility.” Id. A “stand-alone” facility is a
intake structure nonetheless constitutes a “new facility”
“new, separate facility that is constructed on property
is whether the project increases the design capacity of
where an existing facility is located and whose
the intake structure to accommodate the intake of
processes are substantially independent of the existing
additional water. As explained by EPA in the preamble
facility at the same site.” Id. Facilities that do not meet
to the rule, “a facility that would otherwise be a ‘new
the definition of either a “greenfield” facility or a
facility’ would not be treated as a new facility under
“stand-alone” facility are not “new facilities” under
this rule if it withdraws water from an existing cooling
EPA’s cooling water intake rule and therefore are not
water intake structure whose design capacity has not
subject to the new requirements.
been increased to accommodate the intake of additional
EPA’s regulation also specifically excludes from the
definition of “new facility” new units “that are added to
a facility for purposes of the same general industrial
operation.” Id.
The regulation contains examples of facilities that
would be considered “new facilities” and facilities that
cooling water.” See 66 Fed. Reg. at 65,259. Moreover,
according to the preamble, routine maintenance and
repair of a cooling water intake structure (including the
pumps) that does not increase design capacity will not
cause a project to be considered a “new facility.” Id.
would not be considered “new facilities.” For instance,
WHAT IS A COOLING
WATER INTAKE STRUCTURE?
EPA states that the following facility would be a “new
The requirements of EPA’s new regulations extend to
facility” under the rule:
new facilities that are point sources and that use or
A facility is demolished and another facility is
constructed in its place. The newly-constructed
facility uses the original facility’s cooling water
intake structure, but modifies it to increase the
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design capacity to accommodate the intake of
propose to use cooling water intake structures with
certain flow and use characteristics. A “cooling water
intake structure” under the rule is the “total physical
structure and any associated constructed waterways used
to withdraw cooling water from waters of the U.S.” See
KIRKPATRICK & LOCKHART LLP ENVIRONMENTAL ALERT
66 Fed. Reg. at 65,339 (new 40 C.F.R. § 125.83). The
from waters of the United States. See 66 Fed. Reg. at
cooling water intake structure “extends from the point at
65,338 (new 40 C.F.R. § 125.81(b)).
which water is withdrawn from the surface water source
up to, and including, the intake pumps.” Id.
“Cooling water” under the rule is “water used for contact
or non-contact cooling, including water used for
equipment cooling, evaporative cooling tower makeup,
and dilution of effluent heat content.” Id. The rule
further explains that the “intended use” of “cooling
water” is “to absorb waste heat rejected from the process
or processes used, or from auxiliary operations on the
facility’s premises.” Id.
DESIGN INTAKE FLOW
AND USE CHARACTERISTICS
REQUIREMENTS
OF THE NEW REGULATIONS
Under the new regulations, EPA establishes two options
for achieving compliance (denoted, “Track I” and “Track
II”). See 66 Fed. Reg. at 65,340 (new 40 C.F.R. §
125.84). Track I establishes specific performance
standards, while Track II allows the use of alternate
technologies if the facility can demonstrate that the
technologies would reduce the level of adverse
environmental impacts to a comparable level as would
be achieved under Track I.
Certain requirements apply, however, regardless of
EPA’s new rule applies only to new facilities that are
which compliance track is selected. For example, total
point sources and that have at least one cooling water
design intake flow of any structure subject to the new
intake structure that uses at least 25 percent of the
rule must be restricted as follows:
water it withdraws for cooling purposes and that has a
design intake flow greater than two million gallons per
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the total design intake flow must be no greater than
day. The percentage of water used for cooling purposes
five percent of the source water annual mean flow;
must be measured on an average monthly basis, based
on the new facility’s design. The threshold requirement
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thermal stratification or turnover pattern (where
to meet or exceed the 25 percent trigger. See 66 Fed.
present) of the source water except in cases where
Reg. at 65,339 (new 40 C.F.R. § 125.81(c)).
the disruption is determined to be beneficial to the
(According to EPA’s definition of “cooling water,”
management of fisheries for fish and shellfish by
water that is used in a manufacturing process either
any fishery management agency(ies);
before or after it is used for cooling is considered
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percentage of a new facility’s intake flow that is used
percent of the volume of the water column within
40 C.F.R. § 125.83).) A facility’s “design intake flow”
the area centered about the opening of the intake
is “the value assigned (during the facility’s design) to
with a diameter defined by the distance of one tidal
the total volume of water withdrawn from a source
Reg. at 65,338 (new 40 C.F.R. § 125.83).
Facilities may not avoid the requirements of the rule by
creating arrangements to obtain cooling water from an
entity that is not itself a point source discharger because
the “use” of a cooling water intake structure includes
For intakes located in estuaries or tidal rivers, the
total design intake flow must be no greater than one
for cooling purposes. See 66 Fed. Reg. at 65,339 (new
water body over a specific time period.” See 66 Fed.
For intakes located in lakes or reservoirs, the total
design intake flow must not disrupt the natural
is met if the average for any month in a year is expected
process water for the purposes of calculating the
For intakes located in freshwater rivers or streams,
excursion at the mean low water level.
See 66 Fed. Reg. at 65,340-41 (new 40 C.F.R. § 125.84).
Under Track I, facilities that withdraw ten million
gallons or more of water per day must achieve the
following:
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Flow Reduction: Intake flow must be reduced, at a
obtaining cooling water by contract or arrangement with
minimum, to that which can be attained by a closed-
an independent supplier, if the supplier withdraws water
cycle recirculating cooling water system.
FEBRUARY 2002
Kirkpatrick & Lockhart LLP
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Velocity: Each cooling water intake structure must
Finally, EPA’s new rule allows alternate (less stringent)
have a maximum through-screen design intake
requirements to be authorized upon demonstration that
velocity of 0.5 feet per second.
compliance with the requirement at issue would result in
Impingement: Measures to minimize impingement
must be implemented if protected species, critical
habitat or species of concern are present within the
zone of influence or are still subject to unacceptable
stress after the flow reduction and velocity
compliance costs “wholly out of proportion to those EPA
considered in establishing the requirement at issue” or
would result in significant adverse impacts on local air
quality, local water resources, or local energy markets.
See 66 Fed. Reg. at 65,341 (new 40 C.F.R. § 125.85).
restrictions are met.
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CRAIG P WILSON
Entrainment: Measures to minimize entrainment
717.231.4509
cwilson@kl.com
must be implemented if protected species or critical
habitat are present within the zone of influence or if
KIMBERLY A HUMMEL
undesirable cumulative stressors affecting entrainable
717.231.4807
khummel@kl.com
life stages of species of concern exist or if
unacceptable stress to species of concern remains
after flow reduction and velocity restrictions are met.
See 66 Fed. Reg. at 65,340 (new 40 C.F.R. § 125.84(b)).
Facilities with water withdrawal rates between two and
ten million gallons per day are not required by Track I
to meet the flow reduction requirement imposed on
facilities with larger withdrawals (i.e., the requirement
to reduce flow to that which can be attained by a
closed-cycle recirculating cooling water system),
although they must meet the same velocity and
impingement requirements as those established for
facilities with larger withdrawals and they are required
CONTACTS
Boston
Roger C. Zehntner
rzehntner@kl.com
617.261.3149
Dallas
Stephen A. Kennedy
skennedy@kl.com
214.939.4917
Harrisburg
Craig P. Wilson
Kimberly Hummel
cwilson@kl.com
khummel@kl.com
717.231.4509
717.231.4807
Los Angeles
Frederick J. Ufkes
fufkes@kl.com
310.552.5079
Miami
Daniel A. Casey
dcasey@kl.com
305.539.3324
Newark
Anthony P. La Rocco alarocco@kl.com
973.848.4014
New York
Warren H. Colodner
wcolodner@kl.com
215.536.3912
65,340-41 (new 40 C.F.R. § 125.84(c)).
Pittsburgh
Richard W. Hosking
rhosking@kl.com
412.355.8612
Facilities that choose to comply with Track II must
San Francisco
Edward P. Sangster
esangster@kl.com
415.249.1028
bhartman@kl.com
202.778.9338
to take measures to minimize entrainment regardless of
whether protected species, critical habitat or species of
concern are shown to be at risk. See 66 Fed. Reg. at
show that the technologies employed will reduce the
Washington
level of adverse environmental impacts, including
impacts to fish and shellfish, to a comparable level as
Barry M. Hartman
would be achieved under Track I’s flow reduction and
velocity requirements. See 66 Fed. Reg. at 65,341 (new
40 C.F.R. § 125.84(d)).
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KIRKPATRICK & LOCKHART LLP ENVIRONMENTAL ALERT
© 2002 KIRKPATRICK & LOCKHART LLP.
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