EPA Publishes Final 316(b) Rule: Flexibility for Generators Means Litigation By Environmental Groups

Last Friday, EPA finally published its § 316(b) rule in the Federal Register. As we noted in May, the rule is more significant for what it does not do – require closed cycle cooling – than for what it does.  impinged_herring_732

Indeed, the rule provides a lot of flexibility for generators. It allows several different options for compliance with the impingement requirements. The entrainment requirements, which apply to facilities using 125 million gallons of water per day, will be based on site-specific analyses.

Of course, this very flexibility has the NGO community up in arms, and the BNA Daily Environment Report quotes Reed Super, who has represented NGOs throughout this process, as confirming that they will challenge the rule. In fact, Super called the rule “a complete disaster” and said it was worse than the Bush administration rule from 2004, which has to be the worst epithet that environmental NGOs can use.

Of course, in Entergy v. Riverkeeper, the Supreme Court said that EPA could consider costs in setting standards under § 316(b). I realize that EPA consideration of costs is not precisely the basis of the likely NGO challenge here, but I remain hopeful that Entergy did pave the way for a more rational approach to regulation in this area, and that the judges reviewing the § 316(b) rule will understand that the flexibility EPA provided here is consistent with this more rational approach.

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