ELR Citation: ELR 20022
No(s). s. 04-6692 et al (2d Cir. Jan 25, 2007)

The court remanded portions of a U.S. Environmental Protection Agency (EPA) rule promulgated under Clean Water Act §316(b) intended to protect fish, shellfish, and other aquatic organisms from being harmed or killed by cooling water intake structures at large, existing power-producing facilities. Certain aspects of the rule are based on a reasonable interpretation of the Act and supported by substantial evidence in the administrative record. But the provision requiring structures to reflect the "best technology available for minimizing adverse environmental impact" is inadequately explained. Similarly, the provisions that set performance standards as ranges without requiring facilities to achieve the greatest reduction of adverse impacts they can, that allow compliance through restoration measures, and that authorize a site-specific cost-benefit variance are inconsistent with the statute. Hence, these provisions, in addition to other aspects of the rule for which EPA failed to give adequate notice of its rulemaking or for which there is no final agency action to review, were remanded.

[A prior decision in this litigation can be found at 34 ELR 20017.]