The Environmental Protection Agency said it will delay issuing until Nov. 20 a final rule to require more than 1,000 power plants and industrial facilities to obtain Clean Water Act permits for their cooling water intake structures, citing the government shutdown in October as a force beyond its control.
Under a 2010 legal agreement with Riverkeeper, an environmental advocacy group, the EPA was required to issue the final rule by Nov. 4.
However, in an Oct. 31 letter, Justice Department attorney Preet Bharara said the EPA was invoking the “force majeure” clause in the settlement agreement to seek postponement of the final cooling water intake rule. The “force majeure” clause in the agreement allows the agency to seek delays owing to “unforeseeable circumstances outside of EPA's reasonable control.”
The letter was sent to Reed Super, principal of the New York City-based Super Law Group, which represented Riverkeeper, the Natural Resources Defense Council and other environmental groups in the settlement agreement with the EPA.
“The shutdown does seem to qualify as a Force Majeure and adding back the 16 days lost is appropriate under those circumstances,” Super told Bloomberg BNA in a Nov. 4 e-mail.
The final rule is expected to require National Pollutant Discharge Elimination System permits that reflect the best available technology in design, location, and construction of cooling water intake structures to limit the trapping and killing of fish and other marine life.
The intake structures at industrial facilities draw water from rivers, lakes and streams that is used for cooling. However, aquatic organisms are harmed or killed when they get drawn into these systems or become trapped on screens intended to filter them out.
The Nov. 20 date marks the third extension EPA has sought since it reached an agreement with environmental groups in 2010 (Riverkeeper v. Jackson, S.D.N.Y., No. 93-Civ-0314, 7/27/12; .
The White House Office of Management and Budget began reviewing the rule July 30 .
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