EPA 316(b) Water Intake Rule Developments
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This document from Baker Botts discusses recent developments in water supply and quality law. It summarizes the Water Transfers Rule and Chevron deference. It also discusses an Elk River chemical spill in West Virginia, requirements under the Clean Water Act for spill prevention plans, and the EPA's 316(b) rule establishing standards for cooling water intake structures. The document uses a hypothetical example to illustrate how intake flow requirements would apply to different types of facilities that withdraw water from a canal that is considered waters of the United States.
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EPA 316(b) Water Intake Rule Developments
- 1. CONFIDENTIAL © Copyright Baker Botts 2017. All Rights Reserved. Paulina Williams Water Supply and Quality Crossing: Recent Developments
- 2. BAKER BOTTS Water Transfers Rule Unitary Waters 2
- 3. BAKER BOTTS Chevron Deference The Water Transfers Rule is “precisely the sort of policymaking decision that the Supreme Court designed the Chevron framework to insulate from judicial second- (or third-) guessing.” What is the future of Chevron deference? 3
- 4. BAKER BOTTS Elk River Spill of MCHM Freedom Industries Site on the Elk River 4
- 5. BAKER BOTTS CWA - Hazardous Substance Spill Prevention Environmental Health Alliance for Chemical Policy Reform v. EPA (S.D.N.Y. 2016) • Sue and Settle • Non-discretionary duty under CWA 311(j)(1)(C) • Hazardous Substances • Information Request and Public Meetings • Rule Proposal June 2018 • Final Rule August 2019 5
- 6. BAKER BOTTS CWA Section 316(b) “Require that the location, design, construction, and capacity of cooling water intake structures (CWIS) reflect the best technology available (BTA) for minimizing adverse environmental impact ” 6
- 7. BAKER BOTTS Adverse Environmental Impact 7
- 8. BAKER BOTTS 316(b) Rule Basics • Federal rule effective as of October 14, 2014 • Applicable to: – Existing power generating, manufacturing, industrial facilities – Point source (NPDES permits) – "Use" of cooling water intake structure – With design intake > 2 mgd – From waters of the United States – 25% or more actual intake used exclusively for cooling • Provides Services Two Comment Opportunities and an EPA "Pinky Promise"" • Status – Federal litigation but the rule is effective – States are implementing the rule now, with only minimal direction from EPA 8
- 9. BAKER BOTTS What does this mean? 9 Do you have a TPDES permit? It is up for renewal AFTER July 14, 2018? > 2 MGD DIF? CWIS from WOTUS? 25%+ exclusively for cooling? Not from PWS? Best Professional Judgment
- 10. BAKER BOTTS Hypothetical 10 City (PWS)Manufacturer 1 2 3 Manufacturer City (PWS)
- 11. BAKER BOTTS Hypothetical 11 City (PWS)Manufacturer 1 2 3 Manufacturer City (PWS)
- 12. BAKER BOTTS Hypothetical 12 City (PWS)Manufacturer 1 2 3 Manufacturer City (PWS)
- 13. BAKER BOTTS What does this mean? 13 Do you have a TPDES permit? It is up for renewal AFTER July 14, 2018? > 2 MGD DIF? CWIS from WOTUS? 25%+ exclusively for cooling? Not from PWS? Best Professional Judgment
- 14. BAKER BOTTS Assuming WOTUS Canal 14 100 MGD 15 MGD 20 MGD Industrial Cooling Water Supply Agricultural/Other Water Supply Water Authority River Intake 15 MGD 50 MGD
- 15. BAKER BOTTS Assuming WOTUS Canal 15 100 MGD 15 MGD 20 MGD Industrial Cooling Water Supply Agricultural/Other Water Supply Water Authority River Intake 15 MGD 50 MGD 15% 20% NOT 35%
- 16. AUSTIN BEIJING BRUSSELS DALLAS DUBAI HONG KONG HOUSTON LONDON MOSCOW NEW YORK PALO ALTO RIYADH SAN FRANCISCO WASHINGTON bakerbotts.com ©Baker Botts L.L.P., 2017. Unauthorized use and/or duplication of this material without express and written permission from Baker Botts L.L.P. is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given with appropriate and specific direction to the original content.
- 17. BAKER BOTTS 17
- 18. BAKER BOTTS 18
Hinweis der Redaktion
- TCEQ stated in the Fact Sheet: According to regulations found at 40 CFR § 125.91(c) [PWS exemption], obtaining cooling water from a public water system does not constitute use of a cooling water intake structure. The facility obtains water from the Houston West Canal, which is part of the City of Houston public water system and is used to convey raw water to the water treatment plant located at the terminus of the canal. Therefore, 40 CFR § 125.90(b) is not applicable and the facility is not subject to Clean Water Act Section 316(b) guidelines. EPA initially objected to this position, but ultimately yielded to the conclusion that these facts met the exemption AND that obtaining water from a public water system exempts the intake structure from being subject to even BPJ. 30 Tex. Admin. Code § 290.38(69); 40 CFR § 141.2; 63 Fed. Reg. 41,941 (August 5, 1998). The Pondera example involved raw water. But we are also aware of TCEQ agreeing that a facility that receives partially treated water from a PWS is also excluded from 316(b) BPJ. But these are just two datapoints, and there remain many unanswered questions. For instance, in example #3, does it matter what the proportion is between the city and manufacturer? Molly has some additional hypotheticals that remain unresolved. Molly?