The Big Chill

Last month, the Environmental Protection Agency (EPA) issued final rules under the Clean Water Act Section 316(b).  The new rules impact existing[1] facilities that: (1) use cooling water intake structures designed to withdraw at least two million gallons of water per day from U.S. waters; (2) have or are required to have a National Pollutant Discharge Elimination System (NPDES) permit; and (3) use at least 25 percent of the water they withdraw exclusively for cooling purposes. Additionally, they showcase the EPA’s efforts to prevent aquatic life from being drawn or trapped by plant and factory equipment. According to EPA, the rules will likely apply to more than 1,000 facilities in sectors including electric generation plants, pulp and paper mills, chemical manufacturing plants, iron and steel manufacturing facilities, petroleum refineries, food processing plants, and aluminum manufacturing facilities. According to Nancy Stoner, EPA’s acting assistance administrator for water, “EPA is making it clear that if you have cooling water intakes you have to look at the impact on aquatic life in local waterways and take steps to minimize that impact.”

The requirements offer facilities a choice of seven technologies to prevent both fish entrainment (aquatic organisms being drawn into the facility) and impingement (aquatic organisms becoming trapped against an intake structure), which have all been in use for decades and are currently in place at more than 40 percent of the affected plants. Republicans and the power-generating sector believe the new rules will increase costs, raise electricity prices, and kill jobs. Sen. Jim Inhofe (R-Okla.) immediately criticized the rules and stated he would seek congressional action to overturn them. “The EPA has released another rule that threatens the affordability and reliability of America’s electricity,” Inhofe said.

The regulation disproportionately impacts power generation plants—of the approximately 1,065 facilities impacted, 544 of them are power generating plants. America’s nuclear infrastructure, consisting of 104 facilities and generating 20 percent of U.S. electricity, is particularly affected with its copious use of cooling water. The average commercial reactor in the U.S. is aged 33 years with the two oldest in service since 1969 and the last newly built reactor entering service in 1996. Although the rule allows facility owners or operators flexibility in fulfilling its “best technology available requirements,” there is an added requirement for biological studies and federal consultations as part of the permitting process—an aspect that will undoubtedly be costly, potentially unfeasible, and enough to give any energy provider an unwelcomed chill.

The new rule, effective sixty days after its publication in the Federal Register, will be implemented through the NPDES permit program. Environmental groups were hoping for more stringent requirements and will undoubtedly challenge the final rule.

[1] Previous Phase I rules, found at 40 C.F.R Subpart I, apply to new facilities. 66 Fed. Reg. 65256 (Dec. 18, 2001).

The EPA, DPA and Your First-Grader’s GPA?

Last week, the Environmental Working Group, a nonprofit health advocacy organization, petitioned the U.S. Environmental Protection Agency about a pesticide commonly used on apples.

The group urged federal regulators to impose harsh and unnecessary restrictions regarding the pesticide known as diphenylamine, or DPA. It cited the European Union, which prohibited levels above 0.1 parts per million two years ago, and arsenic, an accepted but then banned substance, as two strong reasons to conduct new scientific research.

The chemical is used frequently on apples in the United States to prevent browning of the skin during long-term cold storage. Tests conducted by the U.S. Department of Agriculture demonstrated measurable levels of DPA on 80 percent of their sample size, according to the EWG — with levels on those testing positive, four times greater than the allowable limits on European imports.

It may be a little premature to accept their cautionary rhetoric. It’s a mistake to “equate the presence of a chemical with the presence of risk,” says Joseph Schwarcz, director of the Office for Science & Society at McGill University in Montreal. Although Americans eat about 10 pounds of apples per year, a look at the database the EWG used to support its letter does not trip serious alarms. The database, a product of the USDA, shows just one of 744 apple samples it tested demonstrating a level higher than the government limit — most were far below the permissible limit.

The EU’s stance may be a product of how the United States and Europe view food differently, with America viewing food as a commodity and Europe much more concerned about where food originates.

Still, the EWG’s shopper’s guide urges consumers to buy organic fruits and vegetables; though, even organics are not pesticide-free.

The bottom line? No one should stop eating fruits and vegetables; although, first-grade teachers may be well advised to prepare for an avalanche of avocados, if the EWG gets its way.

Public Comment For NYS’s Draft Hydro Fracking Draft Regulations


Recently, New York DEC issued its draft regulations for hydraulic fracturing based on the proposed requirements in the revised supplemental generic EIS released earlier this month. Public comment began yesterday and will run concurrently with the public comment period on the DSGEIS, which ends on December 12.  DEC  also released the proposed SPDES general permit for storm water discharges associated with hydraulic fracturing.  Public hearings will be held during November and here in New York on Nov. 30 at Tribeca Performing Arts Center. No permits can be issued for hydraulic fracturing until the SGEIS is finalized and the DEC issues the required Findings Statement.  The summary of express terms can be found on the DEC website at