[Federal Register Volume 66, Number 102 (Friday, May 25, 2001)]
[Proposed Rules]
[Pages 28853-28872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13187]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 122, 123, 124, and 125
[FRL-6981-1]
Notice of Data Availability; National Pollutant Discharge
Elimination System--Regulations Addressing Cooling Water Intake
Structures for New Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; Notice of data availability.
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SUMMARY: On August 10, 2000, EPA proposed standards for cooling water
intake structures at new facilities to implement section 316(b) of the
Clean Water Act (CWA) (65 FR 49060). This notice presents a summary of
the data EPA has received or collected since proposal, an assessment of
the relevance of the data to EPA's analysis, some modified technology
options suggested by commenters, and an alternative approach suggested
by a trade group representing the utility industry. EPA solicits public
comments about any of the information presented in this notice and the
record supporting this notice.
DATES: Comments on this notice of data availability must be received or
postmarked on or before midnight June 25, 2001.
ADDRESSES: Mail public comments regarding this notice of data
availability to: Cooling Water Intake Structure (New Facilities)
Proposed Rule Comment Clerk--W-00-03, Water Docket, Mail Code 4101,
EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW, Washington, DC
20460. Deliver your comments in person (including overnight mail) to
the Cooling Water Intake Structure (New Facilities) Proposed Rule
Comment Clerk--W-00-03, Water Docket, Room EB 57, 401 M Street, SW,
Washington, DC 20460. You may also submit comments electronically to
[email protected]. Please submit any references cited in your comments.
Please submit an original and three copies of your written comments and
enclosures. For additional information on how to submit comments, see
SUPPLEMENTARY INFORMATION, How May I Submit Comments?''
FOR FURTHER INFORMATION CONTACT: Deborah G. Nagle at (202) 260-2656.
The e-mail address for the above contact is [email protected].
SUPPLEMENTARY INFORMATION:
Contents
I. Purpose of this Notice
[[Page 28854]]
II. Data Obtained Since the Proposal
A Regulatory Thresholds
B Industry Profile for Utility and Nonutility Electricity
Generators
C. Industry Profile for Manufacturers
D. New Data and Refinements to the New Facility Framework Based
on Waterbody Type
E. Additional Data and Information Concerning the Impingement
and Entrainment Approach and the Population Approach and Biological
Assessment Approach to Defining Adverse Environmental Impact
F. Additional Data Related to the Specific Technology Limits in
the Proposed Regulations
G. Revision in Costing and Energy Impact Estimates
H. Industry Approach
I. Purpose of This Notice
On August 10, 2000 (65 FR 49060), EPA proposed standards for
cooling water intake structures at new facilities to implement section
316(b) of the Clean Water Act (CWA) (see #2-001 in the Docket). EPA has
received numerous comments and data submissions concerning the proposal
and has collected additional data. In this notice, EPA is making these
new data available for comment and is assessing the relevance of the
data to EPA's analysis. Since the end of the comment period, EPA also
received an alternative regulatory approach suggested by a trade group
representing the utility industry which is discussed in this notice and
is included in the record for the rule. EPA has initially reviewed this
approach and, in this notice, suggests modifications to the approach
that are being considered for the final rule. EPA solicits public
comments regarding any of the information presented in this notice and
the record supporting this notice.
II. Data Obtained Since the Proposal
A. Regulatory Thresholds
EPA proposed that the term ``cooling water intake structure'' means
the total physical structure and any associated constructed waterways
used to withdraw water from waters of the U.S., provided that at least
twenty-five (25) percent of the water withdrawn is used for cooling
purposes (see proposed 40 CFR 125.83, 65 FR 49116). A number of
commenters asserted that EPA did not provide a rational basis in its
record for proposing that use of 25% of intake flow for cooling should
determine whether an intake structure is a ``cooling water intake
structure.'' In response to these comments, EPA requests comment on
preliminary data the Agency recently gathered from its detailed
questionnaire for existing facilities. These data document the
percentage of manufacturing facilities that use the following
percentages of water withdrawn from waters of the U.S. for cooling
purposes: more than 5% (87% of the manufacturing facilities); more than
10% (82% of manufacturing facilities); more than 15% (77% of
manufacturing facilities); more than 20% (74% of manufacturing
facilities); more than 25% (68% of manufacturing facilities); and more
than 50% (49% of manufacturing facilities). See ``Percentages of In-
scope Facilities Using Various Proportions of Their Intake Water for
Cooling Purposes' (#2-002 in the Docket). EPA will continue refining
these data by, as necessary, calling back certain facilities to clarify
any data quality concerns. The Agency will use these data to estimate
the effect of alternative thresholds on the amount of new cooling water
subject to this rulemaking. EPA will determine whether to revise the
definition of a cooling water intake structure for the final new
facility regulation based on this information, other information
noticed today on adverse environmental impact (Section E below),
waterbody sensitivity (Section D below) and proposed limitations on
intake capacity based on waterbody flow rates (Section F below) and on
information already in the record.
To improve the definition in EPA's proposal (65 FR 49066-49067),
EPA requests comment on two alternatives:
New facility intake structures not subject to this rule
because of the amount of cooling water they use are not considered
cooling water intake structures for regulatory purposes and thus would
not be subject to section 316(b) of the CWA; or
New facility intake structures not subject to this rule
because of the amount of cooling water they use may be subject to
requirements established by permit authorities under CWA section 316(b)
on a case-by-case basis.
EPA's proposed regulations would apply to new facilities that have
a cooling water intake structure with a design intake capacity of
greater than or equal to two (2) million gallons per day (MGD) of
source water. 65 FR 49067-49068. Since proposal, EPA collected
preliminary data from its detailed questionnaire for existing
facilities. These data document the percentage of existing facilities
constructed in the last 10 years that would be covered by national
regulation at the following alternative regulatory flow thresholds: 2
MGD, 5 MGD, 10 MGD, 15 MGD, 20 MGD, 25 MGD, 30 MGD, 50 MGD and 100 MGD.
The data analysis shows that 58% of the manufacturers, 70% of the
nonutilities and 100% of the utilities built in the last 10 years would
be regulated if the threshold was 2 MGD as proposed in the new facility
rule. At the 2 MGD threshold 99.7% of the total flow would be covered.
At a threshold of 15 MGD, 32% of the manufacturers, 29% of the
nonutilities and 50% of the utilities would be covered, as would 97.3%
of the total flow. The total flow covered remains relatively high,
because the large flows from a small number of utility facilities
dominate the total flow. At a threshold of 25 MGD, 18% of the
manufacturers, 17% of the nonutilities and 50% of the utilities built
in the last 10 years would be regulated, covering 94.9% of the total
flow. By industry category, 71.4% of the flows from manufacturers,
74.3% of the flows from nonutilities, and 99.5% of the flows from
utilities would be regulated. See ``Percentages of In-scope Facilities
Meeting Various Design Intake Flow Thresholds'' (see #2-003 in the
Docket).
The Agency also is considering State of Maryland regulations for
cooling water intake structures (see COMAR 26.08.03, #2-004 in the
Docket). These regulations exclude cooling water intake structures
withdrawing less than 10 MGD if the volume of water is less than 20
percent of the design stream flow for nontidal waters or less than 20
percent of the annual average net flow past the intake which is
available for dilution for tidal waters. EPA intends to consider this
new information, as well as the information discussed and included in
the record at proposal and any other relevant sources of information,
to establish a minimum flow threshold in final regulations.
B. Industry Profile for Utility and Nonutility Electricity Generators
EPA intends to consider basing its estimate of new electricity-
generating facilities for the final rule, in part, on a revised
Department of Energy (DOE) forecast for growth in demand for
electricity over the next twenty years. (See Annual Energy Outlook
2001, DOE, Energy Information Agency DOE/EIA #6383 (2001), #2-005 in
the Docket.) At the time of proposal, DOE projected a 1.3% annual
increase in growth in demand for electricity over the next twenty
years. Now, due in part to a revision in the methodology used by the
Department of Commerce to calculate gross domestic product, DOE
projects a 1.8% rate of increase in growth in demand for electricity
over the next twenty years. DOE also projects that new electricity
generating capacity will be needed sooner than previously forecast. Of
the new generating capacity needed in the next 20 years, DOE
[[Page 28855]]
projects that 22 Gigawatts will be supplied by coal-fired steam
electric generating facilities, and that 209 Gigawatts will be supplied
by natural gas-fired, combined-cycle facilities.
1. Profile for Combined-Cycle Electric Generating Facilities
DOE does not gather information on specific, planned new
electricity-generating facilities and does not estimate the number of
facilities that utility and nonutility power producers will build to
meet increases in demand. Thus, EPA is considering, as at proposal,
using the NEWGen database, a proprietary database owned by Resources
Data International, Inc., to estimate the average size of new combined-
cycle facilities. (See Engineering and Economic Analyses for the
Proposed Section 316(b) New Facility Rule, EPA-821-R-00-019 (#1-5046-PR
in the Docket) for more information on the methodology EPA used to
project new facilities and their compliance costs at proposal.) To
estimate the total number of new combined-cycle facilities that will be
built over the next twenty years, EPA is considering dividing DOE's new
forecast of demand for new combined-cycle electricity generating
capacity over the next twenty years by the average size of new, U.S.
combined-cycle facilities in the February 2001 version of the NEWGen
database. EPA also may use the February 2001 NEWGen database to
estimate the percentage of new combined-cycle facilities that have
characteristics that would make them subject to a section 316(b) rule
for new facilities (e.g., do they plan to withdraw cooling water from
waters of the U.S. in amounts greater than the regulatory threshold).
For costing purposes, EPA is considering using the methodology used at
proposal (described Chapters 5 and 6 and Appendices A and B of Economic
and Engineering Analyses of the Proposed Section 316(b) New Facility
Rule, EPA-821-R-00-019, August 2000) using the February 2001 NEWGen
database to estimate the baseline of cooling water intake structure
technologies that would be in place at new combined-cycle facilities
without final regulations.
Following proposal, EPA received comment from the Utility Water Act
Group (UWAG), an association of individual electric utilities and three
national trade associations of electric utilities (see W-00-03, 316(b)
Comments 1.68). UWAG objected to the Agency's use of the NEWGen
database to project the number of combined-cycle facilities that would
be subject to the regulations and the baseline of intake structure
technologies without making this proprietary database available to the
public. On September 25, 2000, EPA added information to the rulemaking
record (see #1-6001-AD, Identification of NEWGen Facilities for the
Economic Analysis for the proposed section 316(b) New Facility Rule) so
that the public could determine which facilities the Agency considered
in developing its profile of new combined-cycle facilities and comment
on additional facilities that the Agency should have considered. EPA is
now reviewing information provided by the Edison Electric Institute
(EEI) (see W-00-03, 316(b), Comments 1.69) regarding additional
combined-cycle facilities that EEI asserts would be subject to the
proposed regulations.
At proposal, the NEWGen database contained information about 94
combined-cycle facilities. EPA is now investigating the 323 combined-
cycle facilities documented in the February 2001 NEWGen database.
Because the Agency received this information very recently, EPA has not
completed its analysis of these combined-cycle facilities. Therefore,
EPA cannot provide additional information at this time on:
The total number of combined-cycle facilities the Agency
projects may bear costs to comply with final new facility regulations
The average size of new combined-cycle facilities
The intake structure technologies likely to be in place at
these facilities absent final regulations.
However, these data appear to indicate that, based on changes in the
NEWGen database and DOE's new forecast for electricity from new
combined-cycle facilities, more facilities than estimated at proposal
would need to bear costs to comply with final regulations similar to
the proposal. EPA has provided summary information on the 323 combined-
cycle facilities in the February 2001 NEWGen database, so that the
interested public can determine which facilities the Agency is
considering as it develops a profile of new combined-cycle facilities
for final regulations (see #2-006 in the Docket). As at proposal, EPA
solicits public comment on any additional facilities that the public
believes will be subject to this rule. Specifically, the Agency
requests that members of the public provide the Agency with detailed
information on specific, new combined-cycle facilities that may be
built after the end of calendar year 2001, and may be required to
comply with final new facility regulations. EPA seeks information on
facility size (Megawatt output), facility cost, source of cooling
water, ownership, location, and any plans for where the cooling water
intake structure will be located within the source water body, what the
capacity of the cooling water intake structure will be, and what
technologies would be used to reduce impingement and entrainment
independent of final regulations.
As a supplement to the approach described above, EPA intends to
consider publicly-available information from the 1998 Annual Electric
Generator Reports that utility and nonutility power generators submit
to DOE (see data from Forms EIA-860A and EIA-860B, Annual Electric
Generator Report-1998, Energy Information Administration (EIA), U.S.
Department of Energy, #2-007 in the Docket), as well as data from the
section 316(b) Questionnaire EPA sent to existing facilities.
Specifically, EPA is evaluating data from the EIA-860 databases for
each utility and nonutility power plant that EPA surveyed to estimate
the average size of new combined-cycle facilities. To estimate average
plant size, EPA also is evaluating EIA's Assumptions to the Annual
Energy Outlook 2001, DOE/EIA #0554(2001) (see #2-008 in the Docket),
which lists the average size of future combined-cycle and coal units as
400 MW and states that most plants are likely to have more than one
unit. EPA also is evaluating the section 316(b) survey responses to
estimate the number of new facilities likely to be subject to
regulation and the distribution of cooling systems and intake structure
technologies likely to be in place at these facilities in the absence
of new regulations. (See Newbert, Riley, and Mike Fisher, Abt
Associates. Memo on: Analysis of Information Regarding Average Plant
Size, In-scope Rate, and Distribution of Baseline Cooling System Types
to Lynne Tudor, et.al., USEPA. April 24, 2001, #2-009 in the Docket.)
These survey data indicate that, depending on whether one analyzes only
the detailed questionnaire data or the detailed questionnaire in
combination with the screener questionnaire data, between 44% and 59%
of the coal plants constructed in the last 20 years would be covered by
the proposed new facility regulations. Of the combined cycle plants
surveyed, 15% would be covered by the proposed regulations. Of these
facilities, 73% of the coal-fired plants and 100% of the combined-cycle
plants built in the last 20 years have a recirculating cooling
[[Page 28856]]
system and would meet the proposed requirement to reduce intake
capacity to a level commensurate with use of a closed-cycle
recirculating cooling system. For coal-fired facilities built in the
last 10 years, the percentage of facilities that would be covered that
have closed-cycle recirculating cooling systems increases to 88%.
Looking at utilities only, these data show that 54% of the coal-fired
plants and 15% of the combined-cycle plants built in the last 20 years
would be covered by the proposed regulations. Of the 33 utilities built
in the last 20 years that would be covered (if they were new
facilities), 66% of the coal-fired plants and 100% of the combined-
cycle plants have a closed-cycle recirculating cooling system. Seventy-
five percent of the utility coal-fired plants built in the last 10
years that would be covered by the proposed regulations have a closed-
cycle recirculating cooling system.
2. Profile for Coal-Fired Electric Generating Facilities
At proposal, the NEWGen database contained no information on new
coal-fired steam electric generating facilities. For the years 2001-
2010, DOE's Annual Energy Outlook 2000 projected limited new coal-fired
steam electric generating capacity. Thus, EPA did not project any new
coal facilities for 2001-2010. For the years 2011-2020, EPA used DOE's
projected demand for new capacity from coal-fired facilities and
information from the following sources to estimate the number of new
coal-fired power plants that had characteristics that would make them
subject to the rule and to estimate what cooling water intake structure
technology would be in place at these plants absent final regulation:
Form EIA-767, Steam Electric Plant Operation and Design
Report, Energy Information Administration, U.S. Department of Energy,
1994, 1997. This database contains data on air and water quality from
steam-electric power plants with generating capacities of 100 megawatts
(MW) or greater. A small subset of the data is provided for steam
electric power plants with generating capacity between 10 and 100 MW.
An electronic copy of this database can be found in #2-010 in the
Docket.
Form EIA-860, Annual Electric Generator Report, Energy
Information Administration, U.S. Department of Energy, 1994, 1997.
Since EIA-767 contains only detailed information on utility facilities
greater than 100 MW, this database was used to provide information on
utility facilities less than 10 MW and to provide limited technical
data on facilities between 10 and 100 MW. An electronic copy of this
database can be found in #2-010 in the Docket.
Power Statistics Database, Utility Data Institute, McGraw-
Hill Company, 1994. This data was combined with data from DOE's Stream
Electric Plant Operation and Design Report to provide more specific
details on cooling water intake structure, cooling water system, and
water body characteristics.
For the final rule, EPA is considering using a similar methodology
to project the average size of new coal-fired facilities, the number
that would be subject to the rule, and the baseline of intake structure
technology that would be in place absent final regulations, but would
supplement the DOE data described above with data from the section
316(b) survey of cooling water use by existing facilities. To support
such an analysis, EPA is developing profiles as shown in the table
``Surveyed Coal Plants, By Age of Oldest Unit and In-Scope Status'' in
#2-009 in the Docket. The Agency is also examining 17 coal-fired steam
electric generating facilities in the February 2001 NEWGen database.
EPA is actively seeking information from vendors and other sources of
engineering information (see #2-011A-B in the Docket).
2-011A Couch, Gordon. OECD Coal-Fired Power Generation--Trends in
the 1990s, IEA Coal Research The Clean Coal Centre, 1997.
2-011B Lammers, Thomas F. Steam Plant Operation, 7th Edition,
McGraw-Hill, New York, New York, 1988.
C. Industry Profile for Manufacturers
Following proposal, EPA received comment from the Department of
Energy, the International Association of Drilling Contractors, the
Offshore Oil Operators Committee, the American Petroleum Institute, and
from individual companies expressing concern that the proposed
regulations could adversely impact offshore and coastal oil and gas
drilling operations that use cooling water. Among other concerns, these
commenters stated that:
Offshore and coastal oil and gas drilling facilities have
much more limited technology options for addressing any adverse
environmental impact of cooling water intake than land-based
facilities;
Under current regulations (40 CFR 435.11), existing mobile
oil and gas extraction facilities are considered new sources when they
operate on new development wells and, could be required to perform
costly retrofits in order to comply with the 0.5 ft/s velocity standard
if they become subject to the proposed requirements for cooling water
intake structures at new facilities; and
Higher cooling water intake velocities are necessary in
marine waters to control biofouling of cooling water intake structures.
At proposal, EPA had not considered or projected impacts on this
industrial category. EPA seeks additional information on cooling water
use by offshore and coastal oil and gas extraction facilities (e.g.,
drill ships, semi-submersibles, jack-ups, tension-leg platforms, spars,
etc.). EPA requested additional information from the commenters (see
#2-012A-B in the Docket). The Agency has also sought information from
the Department of Interior's Minerals Management Service and from the
U.S. Coast Guard. This new information suggests that mobile offshore
and coastal drilling units use volumes of cooling water that could make
them subject to the proposed regulations. However, little information
is available about impingement and entrainment associated with this use
of cooling water or the costs or achievability of measures to reduce
any adverse environmental impact. EPA requests that the public provide
peer-reviewed data (e.g., journal articles), operator/drilling
contractor field data, and/or design schematics for mobile offshore
drilling units to support or dispute assertions made by these
commenters. Specifically, EPA would like additional reference data for
the following areas:
Cooling water intake structure capacities (e.g., volumes
of water used per unit of time) and velocities (specifically whether
measured on a through-screen or approach velocity basis) for various
types of offshore and coastal oil and gas extraction facilities;
Velocity requirements and other preventative measures
(e.g., type and amount of chemical treatment, backlashing) for
inhibiting growth of marine organisms;
Potential issues (e.g., hull design implications, load
paths, fatigue, risks to divers) related to either: (1) retrofitting
sea chests and other cooling water intake structures for existing
offshore and coastal oil and gas extraction facilities; or (2)
outfitting newly-built offshore and coastal oil and gas extraction
facilities with cooling water intake structures consistent with the
proposed requirements for new facilities;
Estimated costs to retrofit existing facilities or to
outfit new facilities as described in the preceding bullet, with as
much detailed information as possible regarding the basis for the
estimates;
[[Page 28857]]
Potential scheduling impacts on new or existing mobile
offshore and coastal oil and gas extraction facilities due to section
316(b) requirements for new facilities; and
What issues or costs, if any, would make technologies for
zero use of cooling water unavailable or economically impracticable on
offshore and coastal oil and gas extraction facilities.
Any impingement or entrainment data collected at coastal
or offshore oil and gas extraction facilities.
EPA is considering not including within the scope of this Phase I
rule offshore and coastal oil and gas operations. Instead of addressing
oil and gas operations as part of this rulemaking, EPA is considering
addressing oil and gas operations as part of either the Phase II or
Phase III rulemaking. Alternatively, if EPA addresses offshore and
coastal oil and gas facilities in this Phase I rule, EPA is considering
a higher regulatory threshold for these facilities (e.g., 25 or 50
MGD).
2-012A Johnston, Carey A. USEPA. Memo to File RE: Notes from April
4, 2001 Meeting with US Coast Guard. April 23, 2001.
2-012B Johnston, Carey A. USEPA. Memo to File RE: Summary of Email
Correspondence with MMS on MODU CWIS. April 2001.
D. New Data and Refinements to the New Facility Framework Based on
Waterbody Type
1. Tidal Rivers and Estuaries
EPA received many comments about its proposal to have the most
stringent technology requirements apply in all parts of estuaries and
tidal rivers (see proposed 125.84(d), 65 FR 49118). Some commenters
assert that adverse environmental impact can be minimized in some, if
not all, parts of tidal rivers and estuaries with less protective
technologies than EPA proposed. Some of these commenters observe that
many of the aquatic organisms that inhabit tidal rivers and estuaries
have reproductive strategies that rely on open-water dispersal of a
very large number of eggs and larvae and that, even in the absence of
impacts from a cooling water intake structure, most of the early life
stages of these organisms do not survive to a reproductive age.
Further, these commenters assert that increased survival of early life
stages of these organisms can lead to increased competition among
later-stage juvenile and adult organisms and actually reduce, not
increase, populations of these organisms (see also the discussion of
options for defining adverse environmental impact later in this
notice). In response to comments, EPA further examined this issue and
requests comment on the following documents found in #2-013A-O in the
Docket. These documents include information on larval densities in
selected estuaries and tidal rivers, impingement and entrainment rates
for facilities located in these areas, conditional mortality rates of
organisms in selected estuary and tidal rivers (requires calculation of
larval densities), and discussions of the life history and reproductive
strategies of marine and estuarine organisms that are relevant to EPA's
consideration of whether these locations may be sensitive to
impingement and entrainment impacts associated with cooling water
intake structures. In the proposed rule EPA asserted that estuaries
deserve the most stringent protection because of the abundance and
diversity of aquatic life they harbor. Estuaries are also an important
habitat for the vast majority of commercial and recreational important
species of fin fish. Further, both EPA and commenters noted that the
reproductive strategies of many estuarine species include pelagic or
planktonic larvae. EPA invites comment on the documents which may
support a judgment that the reproductive strategies of tidal river and
estuarine species, together with other physical and biological
characteristics of those waters, make these ecosystem waters
particularly susceptible to cooling water intake structures. In
addition to these documents, EPA notes that some of the new data
discussed below (at Section E) regarding the assessment of adverse
environmental impact, as well as information below regarding the
susceptibility of non-tidal freshwater rivers and streams to cooling
water intake structure impacts (at Section D.5.), also may be relevant
in determining whether tidal rivers and estuaries are more sensitive to
cooling water intake structures than some parts of other waterbodies.
2-013A Richkus, W., Versar, Inc. Memo to EPA RE: Vulnerability of
Biota of Freshwater (Rivers, Lakes, Reservoirs) versus Marine (Tidal
River, Estuary, Ocean) Habitats to Entrainment and Impingement
Impacts. April 2, 2001.
2-013B Winemiller, K.O., and K.A. Rose. Patterns of life-history.
Diversification in North American Fishes: Implications for
Population Regulation. Canadian Journal of Fisheries and Aquatic
Sciences 49: 2196-2218. 1992.
2-013C PSE&G. Renewal Application for Salem Generating Station
Permit No. NJ00005622. Appendix F, Attachments 1 & 2. Baywide and In
Plant Sampling Programs and Sampling Methods; and Model
Methodologies and Common Input Parameters. March 1999.
2-013D PSE&G. Renewal Application for Salem Generating Station
Permit No. NJ00005622. Appendix L, Data Sets. March 1999.
2-013E New York Department of Environmental Conservation. Draft
Environmental Impact Statement for State Pollutant Discharge
Elimination System for Bowline Point, Indian Point 2 & 3, and
Roseton Steam Electric Generating Stations. December 1999.
2-013F Kurkel Patricia, NOAA. Letter to Deborah Hammond, EPA Region
II RE: Review of Draft Permit (Salem Nuclear Generating Station).
February 28, 2001.
2-013G ENSR and Marine Research Inc. for Entergy Nuclear Generation
Company. Study of Winter Flounder Transport in Coastal Cape Cod Bay
and Entrainment at Pilgrim Nuclear Power Station. 2000.
2-013H Boreman, J. and C.P. Goodyear. Estimates of Entrainment
Mortality for Stripped Bass and Other Fish Species Inhabiting the
Hudson River Estuary. American Fisheries Monograph 4: 152-160. 1988.
2-013I McHugh, J.L. and J.J.C. Ginter. Fisheries. MESA New York
Bight Atlas Monograph. January 16, 1978.
2-013J Dixon, D.A., EPRI. Catalog of Assessment Methods for
Evaluating the Effect of Power Plant Operations on Aquatic
Communities. 1999.
2-013K Clark, J. and W. Brownell. Electric Power Plants in the
Coastal Zone: Environmental Issues. American Littoral Society
Special Publication No. 7. 1973.
2-013L Cacela, Dave, Stratus Consulting Inc. Memo to JT Morgan, EPA
RE: Planned Analysis of Ambient Larval Densities and I&E. April 20,
2001.
2-013M Patrick, Ruth, Academy of Sciences. Testimony at Public
Hearing on PSE&G Nuclear Generating Station Draft NPDES Permit.
Pennsville, NJ. January 23, 2001.
2-013N Bigelow, H.B. and W.C. Schroeder. Fishes of the Gulf of
Maine. Fishery Bulletin 74 of the US Fish and Wildlife Service.
Volume 53. 1953.
2-013O Stratus Consulting, Inc. Memo to Blaine Snyder, Tetra Tech,
Inc. RE: Estimation of Entrainment Using Icthyoplankton Samples.
EPA requests comment on the above documents.
2. Littoral Zone
EPA received many comments on EPA's proposed definition of
``littoral zone'' and its use of this concept to divide oceans,
freshwater streams and rivers, and freshwater lakes and reservoirs,
into areas where different suites of technologies are judged to be best
technology available for minimizing adverse environmental impact. Many
of these comments assert that EPA's proposed definition does not give a
rationale for delineating water bodies into parts that are more or less
sensitive to impacts of cooling water
[[Page 28858]]
intake structures. EPA requests comment on the following data and
possible revisions to its approach for delineating more and less
sensitive parts of waterbodies.
First, EPA is considering changing the term ``littoral zone,''
which has a relatively precise definition in limnology (the study of
lakes) to another term such as ``area of potential high impact'' or
``productivity zone.'' This measure would avoid confusion with the
long-standing use of ``littoral zone.'' On the other hand, EPA might
not use a general term for areas with greater potential for adverse
impacts and might define these areas on a waterbody-specific basis.
For example, the Agency might continue to define a sensitive area
in oceans, as it did at proposal: ``the photic zone of the neritic
region. The photic zone is that part of the water that receives
sufficient sunlight for plants to photosynthesize. The neritic region
is the shallow water or nearshore zone over the continental shelf.''
3. Revised definition of estuary and ocean
A number of commenters objected to EPA's proposal to define
estuaries based, in part, on salinity concentrations (see ``estuary''
at proposed 40 CFR 125.83). In response to these comments, EPA requests
comment on new data it has gathered (as described and compiled in #2-
015A-G in the Docket) which provides methods for delineating estuaries.
EPA is considering revising its definition of estuary to incorporate
elements of the information described in these documents and requests
comment on use of these data to revise the definition of estuary. EPA
also requests comment on a revised definition of estuary based largely
on the definition of estuary at proposed 40 CFR 125.83 that would read
as follows: ``estuary means all or part of the mouth of a river or
stream or other body of water having an unimpaired natural connection
with open oceans and within which the seawater is measurably diluted
with fresh water derived from land drainage. The salinity of an estuary
exceeds 0.5 parts per thousand (by mass).''
Finally, EPA is considering and requests comment on a revised
definition of oceans at proposed 40 CFR 125.83 to read as follows:
``ocean means marine waters seaward of the mean low tide mark or
seaward of the waters defined as estuary waters.''
2-015A Dunham, Ray, California State Water Control Board. Memo to
USEPA Office of Water, Office of Science and Technology RE: Methods
for Delineating Estuary Boundaries. April 2000.
2-015B Shalowitz, A.L. and Michael W. Reed. Shore and Sea
Boundaries: Internal Waters. Volume 3, Part 2, Chapter 6, page 222.
2000. (Available at: http://chartmaker.ncd.noaa.gov:80/hsd/shalowitz/part_two.pdf)
2-015C Shalowitz, A.L. and Michael W. Reed. Shore and Sea
Boundaries: The Estuarine Ecosystem: Ecology of the Intertidal and
Subtidal Area. Volume 2, Part 3, Chapter 1, pp. 259-293. 2000.
(Available at: http://ww.csc.noaa.gov:80/otter/htmls/ecosys/ecology/estuary.htm)
2-015D National Oceanographic and Atmospheric Administration.
Coastal Change Analysis Program (C-CAP): Guidance for Regional
Implementation. 2001. (Available at: http://www.csc.noaa.gov:80/products/sf/html/proto.htm)
2-015E National Oceanographic and Atmospheric Administration.
Coastal Change Analysis Program (C-CAP): Guidance for Regional
Implementation. Appendix 3. Description of Cowardin et al. Systems
and Classes. 1979. (Available at: http://www.csc.noaa.gov:80/products/sf/html/proto.htm#app3)
2-015F USEPA. Salinity. (Available at: http://www.epa.gov/owow/estuaries/monitor/chptr14.htm)
2-015G National Oceanographic and Atmospheric Administration. The
Estuarine Ecosystem-Ecology of Tidal and Subtidal Areas. (Available
at: http://www.csc.noaa.gov:80/otter/htmls/ecosys/ecology/estuary.htm)
4. Great Lakes
At 65 FR 49086, the Agency noted that the Great Lakes, like
estuaries, have areas of high productivity and sensitive critical
habitat that may need more stringent requirements than those proposed
for lakes and reservoirs. One commenter asserted that there is no
biological basis for treating the Great Lakes separately and further
asserted that the communities in these lakes are probably less
sensitive than those in other lakes. Since proposal, EPA has gathered
additional information on the susceptibility of the Great Lakes system
to impact from cooling water intake structures and may provide
protections for the Great Lakes beyond those proposed for lakes and
reservoirs. In #2-016A-C in the Docket, EPA has made available for
comment information that supports the idea that the Great Lakes are a
unique system that may deserve additional protection from the impact of
cooling water intake structures. The Agency requests comment on this
information and the position that the Great Lakes should be protected
to a greater extent than other lakes and reservoirs.
2-016A Herdendorf, C.E. Great Lakes estuaries. Estuaries, 13(4):
493-503. 1990.
2-016B EPA. The Conservation of Biological Diversity in the Great
Lakes Ecosystem: Issues and Opportunities. Prepared by The Nature
Conservancy, EPA Great Lakes Program, Chicago, IL. 1999. (Available
at http://www.epa.gov/glnpo/ecopage/issues.html)
2-016C EPA. Water Quality Guidance for the Great Lakes System:
Supplementary Information Document (SID). EPA-820-B-95-001. 1995.
5. Freshwater Rivers and Streams
EPA is considering data that may support the proposition that the
aquatic species predominant in freshwater rivers and streams have
reproductive and life history strategies that generally make them less
susceptible to the impact of cooling water intake structures. These
data may demonstrate that the species in these systems are primarily
demersal (bottom) and adhesive egg-laying or nest-building organisms.
These species do not exhibit the planktonic (free-floating) egg- and
larval-dispersal behaviors that may expose early life stages to impact
from cooling water intake structures. One of these documents also
contains assertions that freshwater fish populations are not harvested
as extensively as marine fish, and that management practices for marine
fish are slow to respond to over-exploitation. EPA invites comment on
the following documents:
2-017A Wright, Jim, TVA. Memo to File RE: Ecological Reasons Why
Freshwater River and Reservoir Systems Do Not Normally Experience
Substantive Impact as a Result of Impingement and Entrainment.
2-017B Dixon, Doug, EPRI. Memo to File RE: Ecological Reasons Why
Freshwater River and Reservoir Systems Do Not Normally Experience
Measurable Environmental Impact as a Result of Impingement and
Entrainment.
2-017C Karr, James R., et al., EPA. Habitat Preservation for
Midwest Stream Fishes: Principles and Guidelines. 1983.
2-017D Lohner, Timothy W., American Electric Power. Letter to Tom
Wall, EPA et al. RE: Final Report-Modeling of Possible 316(b)
Effects on Selected Ohio River Fishes. April 20, 2001.
2-013A Richkus, W., Versar, Inc. Memo to EPA RE: Vulnerability of
Biota of Freshwater (Rivers, Lakes, Reservoirs) versus Marine (Tidal
River, Estuary, Ocean) Habitats to Entrainment and Impingement
Impacts. April 2, 2001.
2-013B Winemiller, K.O., and K.A. Rose. Patterns of life-history.
Diversification in North American Fishes: Implications for
Population Regulation. Canadian Journal of Fisheries and Aquatic
Sciences 49: 2196-2218. 1992.
EPA is considering whether these data would support a modification
to its proposed regulatory requirements for
[[Page 28859]]
freshwater streams and rivers. Such a modification would: (1) Eliminate
the proposed requirement for facilities to reduce intake capacity to a
level commensurate with use of a closed-cycle cooling system for
intakes located inside or within 50 meters of the littoral zone; and
(2) require implementation of additional design and construction
technologies that minimize impingement and entrainment of fish, eggs,
and larvae and maximize survival of impinged adult and juvenile fish
(such as extremely fine-mesh screens, or fish return systems that
significantly increase the survival of impinged organisms) in all parts
of freshwater rivers and streams rather than only within the littoral
zone. The approach would retain the proposed requirements for a design
intake flow of 5% of the source water mean annual flow and
25% of the source water 7Q10 low flow, and a design intake
velocity of 0.5 ft/s in all parts of freshwater rivers and
streams. This approach would potentially have lower costs than the
proposed requirements. EPA invites comment on this potential
modification.
6. Exception for Areas Not Designated To Support an Aquatic Life Use
Several commenters asserted that the proposed regulations would
require use of protective and costly technologies in areas that are not
particularly susceptible to impact from cooling water intake structures
because they do not support aquatic life. EPA is evaluating these
comments and, in response, may identify other less costly technologies
as best technology available for minimizing adverse environmental
impact in waterbodies a State or Tribe designates as having no use
supporting the propagation or maintenance of aquatic life in accordance
with 40 CFR part 131 (e.g., the State or Tribe has conducted a Use
Attainability Analysis and EPA has approved the revised use). EPA
recognizes that this would be a very small set of water bodies and that
including such a provision would have little practical effect on the
regulatory requirements for most new facilities. EPA requests comment
on other ways of identifying or defining waters with low susceptibility
to impact from cooling water intake structures because of limited
potential for aquatic life support even in the absence of the facility.
E. Additional Data and Information Concerning the Impingement and
Entrainment Approach and the Population Approach and Biological
Assessment Approach to Defining Adverse Environmental Impact
1. Additional Impingement, Entrainment, and Mortality Data
Although EPA's proposed regulatory text did not include a
definition of the term ``adverse environmental impact'' in the preamble
to these regulations, the Agency invited comment on a number of
alternatives for either defining adverse environmental impact or
determining a threshold for the level of environmental impact deemed to
be adverse. 65 FR 49074-49075.
EPA received numerous comments on its proposed rule asserting that
the proper endpoint for defining adverse environmental impact (AEI) is
at the population level, that some of EPA's proposed alternative
definitions of adverse environmental impact would essentially protect
``one fish,'' and that EPA's alternative for defining adverse
environmental impact as recurring and nontrivial impingement and
entrainment was vague or would lead to excessive and costly efforts to
protect a very few fish that would not result in ecologically relevant
benefits. While EPA's record at proposal demonstrates that cooling
water intake structures do not kill, impinge, or entrain just ``one
fish,'' or even a few aquatic organisms, today's Notice invites comment
on additional information that provides further examples of cooling
water intake structures that kill or injure large numbers of aquatic
organisms. For example, in #2-013 in the Docket, EPA provides
information on aquatic organism conditional mortality rates for the
Hudson and Delaware rivers which demonstrate the degree of mortality
due to cooling water intake structures. EPA is considering this
information, as well as information (at Section E.2 below) on
impingement and entrainment survival and impact, as it deliberates on
options for the final rule and how it should define adverse
environmental impact. If EPA decides to include a definition of AEI in
the final rule, it is considering whether to define adverse
environmental impact using a population endpoint or an alternative that
relies upon counts of impinged and entrained organisms.
Further, EPA is considering documents that discuss potential
consequences associated with the loss of large numbers of aquatic
organisms. These include impacts on the stocks of various species,
including any loss of compensatory reserve due to the deaths of these
organisms, and the overall health of ecosystems. EPA invites comments
on the following documents:
2-018A Boreman, J. Surplus Production, Compensation, and Impact
Assessments of Power Plants. Environmental Science & Policy. (31)
445-449. 2000.
2-018B Richkus, W., Versar Inc. Memo to EPA RE: Primer on
Entrainment and Impingement Conditional Mortality Rate. March 30,
2001.
2-018C EPA. Memo to File RE: Impingement Values for Plants with
Flows Less Than 100 MGD. August 2000.
2-018D Loveridge, T., Chief Industrial Permits Section, NYDEC.
Transmittal of Impingement and Entrainment Study for Charles Point
Resource Recovery Facility to A. Bromberg, Chief Water Quality
Evaluation Section, NYDEC. January 14, 1987.
2-018E Richkus, W.A. and Richard McLean. Historical Overview of Two
Decades of Power Plant Fisheries Impact Assessment Activities in
Chesapeake Bay. Environmental Science and Policy. (31) 283-293.
2000.
EPA also invites commenters to submit for consideration additional
studies that document either significant impacts or lack of significant
impacts from cooling water intake structures. In addition, EPA invites
comment on the following documents:
2-013C PSE&G. Renewal Application for Salem Generating Station
Permit No. NJ00005622. Appendix F, Attachments 1 & 2. Baywide and In
Plant Sampling Programs and Sampling Methods; and Model
Methodologies and Common Input Parameters. March 1999.
2-013E New York Department of Environmental Conservation. Draft
Environmental Impact Statement for State Pollutant Discharge
Elimination System for Bowline Point, Indian Point 2 & 3, and
Roseton Steam Electric Generating Stations. December 1999.
2. Assessment of Population Modeling Approach
Some commenters assert that impact on individual organisms, large
numbers of individual organisms, or subpopulations are not ecologically
relevant and recommend that EPA define adverse environmental impact as
follows: ``Adverse environment impact is a reduction in one or more
representative indicator species that (1) creates an unacceptable risk
to the populations's ability to sustain itself, to support reasonably
anticipated commercial or recreational harvests, or to perform its
normal ecological function, and (2) is attributable to the operation of
the cooling water intake structure.'' Under this approach, EPA would
define unacceptable risk using a variety of methods that fisheries
scientists have developed for estimating
[[Page 28860]]
(1) the level of mortality that can be imposed on a fish population
without threatening its capacity to provide ``maximum sustainable
yield,'' as developed under the Magnuson-Stevens Fishery Conservation
and Management Act, on a long-term basis, and (2) the optimum
population size for maintaining maximum sustainable yield. (See W-00-
03, 316(b), Comments 1.68).
In response to comments, EPA has included in the record for comment
a memorandum providing a list of references that EPA intends to review
to assess the merits of using a population modeling approach to define
adverse environmental impact. EPA also intends to evaluate and seeks
comment on how and whether it is possible to use such models, which
have historically been used to perform single species assessments, to
assess impacts on multiple species as is often necessary in evaluating
impingement and entrainment by cooling water intake structures. EPA
invites comment on the following documents found in #2-019A-B in the
Docket.
2-019A Strange, Liz, Stratus Consulting, Inc. Memo to File RE:
Scientific Literature on Population Modeling. April 2001.
2-019B ESSA. Review of Portions of Salem Permit--Final Report for
New Jersey Department of Environmental Protection. June 2000.
Further, EPA has included information addressing the issue of
compensation and its application relative to the section 316(b)
rulemaking. In particular, EPA is seeking comment on a memorandum
titled, ``Compensation'' in #2-020C in the Docket. This document states
that the use of compensation factors is typically limited to those
cases where fishery managers have extensive data on a fish population
and that specific, numerical compensation values generally are not used
in the absence of a robust data sets with a minimum of 15-20 years of
data suggested. Moreover, fish stocks for which these robust data sets
exist are generally the highly exploited commercial and recreational
stocks and it is unlikely the data exists for the non-harvested
species. This memorandum also notes that in the absence of sufficient
data, various proxies are typically used in order to side-step the need
for quantitatively determining compensation. EPA invites comment on
each of the following documents in #2-020A-D in the Docket:
2-020A National Marine Fisheries Service. Our Living Oceans. Report
on the Status of U.S. Living Marine Resources. NOAA Technical Memo
#NMFS-F/SPO-41. 1999. (Available at: http://spo.nwr.noaa.gov/unit17.pdf)
2-020B Christensen, S.W., W.V. Winkle, L. W. Barnthouse, and D.S.
Vaughan. Science and Law: Confluence and Conflict on the Hudson
River. Environmental Impact Assessment Review, V.2, N.1. 1981.
2-020C Vaughan, Doug, NMFS. Memo to JT Morgan, EPA RE: Compensation
and follow-up memo. April 19, 2001.
2-020D EPA. Guidelines for Ecological Risk Assessment. Risk
Assessment Forum, U.S. Environmental Protection Agency, Washington,
DC. EPA/630/R-95/002F. 1998.
EPA is also evaluating information submitted by the Utility Water
Act Group (UWAG) and the Electric Power Research Institute (EPRI), both
in their comments and in studies provided to the Agency after the
comment period. (See UWAG original comments at W-00-03, 316(b),
Comments 1.68; EPRI original comments at W-00-03, 316(b), Comments
1.58, EPRI documents submitted after November 9, 2000 at W-00-03,
316(b), Comments 2.11; EPRI meeting material, January 24, 2001(see #2-
021A in the Docket); and UWAG meeting material, January 25, 2001(see
#2-021B in the Docket)). In summary, these comments and documents
assert or are intended to support the assertion that entrainment of
very large numbers of eggs, larvae, and early juvenile-stage fish does
not necessarily meaningfully affect populations of the entrained
species and that substantial percentages of the organisms of many
species may survive entrainment. Further, these comments and documents
assert or are intended to support the assertion that impingement
survival is high for many species and that impingement often impacts
low-value, forage species when they are naturally prone to seasonal
die-off regardless of cooling water intake structures. One of these
comments asserts that EPRI and some of the best fishery scientists in
the world have never identified a site where definitive or conclusive
aquatic population or community level impacts have occurred from
operation of cooling water intake structures. EPA invites comment on
each of these documents.
3. Biological Assessment Approach
Biological assessments and criteria are recognized as important
methods for gathering relevant ecological data for addressing
attainment of biological integrity and designated aquatic life uses
(see #1-5038-PR, #2-022A, #2-022C, and #2-022F in the Docket). EPA
invites comment on the following discussion and documents that identify
potential constraints on using these methods to determine adverse
environmental impact from the operation of cooling water intake
structures.
First, biological assessment and criteria methods are still being
developed for large rivers and the Great Lakes, two large water body
types where many cooling water intake structure are located. Secondly,
although biological assessment and criteria methods have been published
by EPA for small streams and wadeable rivers (see #2-022A and #2-022D
in the Docket), lakes and reservoirs (see #2-022C in the Docket), and
estuaries and coastal marine waters (see #1-5044-PR in the Docket),
many States have yet to implement these methods in the largest of these
water bodies (reservoirs, lakes, estuaries and coastal water (see #2-
022B and #2-022E in the Docket).) where cooling water intake structure
would be located. Most work to date by the States (see #2-022B, #2-022D
and #2-022E in the Docket) to use these methods has been applied to
small streams and wadeable rivers where few cooling water intake
structures are located.
In addition, although bioassessments and criteria are a valuable
tool for determining the biological condition of a water body, in
complex situations where multiple stressors are present (point source
discharges, non-point source discharges, harvesting, runoff,
hydromodifications, habitat loss, cooling water intake structures,
etc.), it is not well understood at this time how to identify all the
different stressors impacting the biology in a water body and how best
to apportion the relative contribution to the biological impairment of
the stressors from each source within a watershed (see #2-022E in the
Docket). Although ecological risk assessment methods have been
successfully used to identify and attribute causation of biological
impairment in some water bodies (see #2-022F in the Docket), the
application of these approaches to cooling water intake structures has
not been tested.
EPRI has also developed a document that examines the suitability of
multimetric bioassessment for regulating cooling water intake
structures under Section 316(b) of the CWA (see #2-022E in the Docket).
In its conclusion, EPRI states that biocriteria are well suited for
assessing community-level effects but are not designed as indices to
measure population-level effects without additional analyses; that
assumptions about the structure and function of ecosystems embedded in
the biocriteria approach appear to conflict with current understanding
of ecosystems as dynamic, nonequilibrium systems
[[Page 28861]]
structured on multiple time and space scales; and that issues such as
significant uncertainty in reference conditions due to unaddressed
sources of natural variability among reference sites may be of
particular importance for large, open systems such as estuaries sand
coastal marine wasters. EPA invites comment on this document and on the
documents listed below, which may be found in #2-022A-F in the Docket:
2-022A EPA. Biological Criteria: Technical Guidance for Streams and
Small Rivers. USEPA, Office of Science and Technology, Washington,
DC. EPA 822-B-96-001. 1996.
2-022B EPA. Summary of State Biological Assessment Programs for
Rivers and Streams. USEPA, Office of Policy Planning and Evaluation,
Washington, DC. EPA 230-R-96-007. 1996.
2-022C EPA. Lake and Reservoir Bioassessment and Biocriteria.
Technical guidance document. Office of Water, USEPA, Washington, DC.
EPA 841-B-98-007. 1998.
2-022D EPA. Rapid Bioassessment Protocols for Use in Wadeable
Streams and Rivers. Second Edition. Office of Water, USEPA,
Washington, DC. EPA 841-B-99-002. 1999.
2-022E Jacobson, P. Evaluation of Biocriteria as a Concept,
Approach, and Tool for Assessing Impacts of Impingement and
Entrainment Under Sec. 316(b) of the Clean Water Act, EPRI, Palo
Alto, CA. TR-114007. 2000.
2-022F EPA. Stressor Identification Guidance Document. Office of
Water, USEPA, Washington, DC. EPA-822-B-00-025. 2000.
EPA also invites comment on the following documents made available
at proposal on August 10, 2000:
1-5038-PR EPA. Estuarine and Coastal Marine Waters : Bioassessment
and Biocriteria Technical Guidance. USEPA, Office of Water
Regulations and Standards, Washington, DC. EPA 822-B-00-024. 2000.
1-5044-PR EPA. Biological Criteria: National Program Guidance for
Surface Waters. USEPA, Office of Water Regulations and Standards,
Washington, DC. EPA 440-5-90-004. 1990.
4. Additional Information Supporting That Impingement and Entrainment
May Be a Non-Trivial Stress on a Waterbody
In addition to reviewing the merits of a population approach to
assessing adverse environmental impact, EPA is also considering
additional information suggesting that impingement and entrainment, in
combination with other factors, may be a non-trivial stress on a
waterbody. EPA recognizes that cooling water intake structures are not
the only source of human-induced stress on aquatic communities. These
stresses include, but are not limited to, nutrient loadings, toxics
loadings, low dissolved oxygen content of waters, sediment loadings,
stormwater runoff, and habitat loss. While recognizing that a nexus
between a particular stressor and adverse environmental impact may be
difficult to establish with certainty, the Agency has identified
methods for evaluating more generally the stresses on aquatic
communities from human-induced perturbations other than fishing. Of
particular importance is the recognition that stressors that cause or
contribute to the loss of aquatic organisms and habitat may
incrementally impact the viability of aquatic resources. EPA is
examining whether waters meet their designated uses, whether fisheries
are in stress, and whether waters would have higher water quality or
better support their designated uses if EPA established additional
requirements for new cooling water intake structures. EPA is
considering use of this type of information as one approach for
evaluating adverse environmental impact and requests comment on this
approach.
EPA has prepared a brief memorandum (Dabolt, Thomas, EPA. Memo to
File RE: 316(b) Analysis--Relationship of Location to Cooling Water
Intake Structures to Impaired Waters. April 18, 2001.) documenting that
about 35% of existing cooling water intake structures at facilities
that completed EPA's detailed section 316(b) questionnaire are located
within two miles of locations within waterbodies identified as impaired
and listed by a State as needing development of a Total Maximum Daily
Load to restore the waterbody to its designated use. EPA recognizes,
however, that these data do not establish that cooling water intake
structures are the cause of adverse environmental impact in any
particular case and that there may be other reasons for the presence of
impaired waters near cooling water intake structures, such as the
frequent location of facilities with cooling water intake structures
near other potential sources of impairment (e.g., industrial point
sources, urban stormwater). EPA requests comment on the relevance of
these data to adverse environmental impact determinations for cooling
water intake structures (see #2-023 in the Docket).
EPA has also summarized information from a number of sources
indicating overutilization of about 46% of the fishery stocks of known
status tracked by and under NOAA purview (73 out of 158 stock groups),
and which rely on tidal rivers, estuaries, and oceans for spawning,
nursery, or adult habitat. An additional 45 stocks under NOAA purview
are of unknown status (about 22% of the fishery). In addition, NOAA
documents in a number of their Fishery Management Plans that cooling
water intake structures, and in particular once-through cooling water
systems that withdraw large volumes of water, cause adverse
environmental impacts due to significant impingement of juveniles and
entrainment of eggs and larvae. EPA recognizes that stress due to
overutilization may not be directly relevant to adverse environmental
impact, but believes that it may be relevant to assessing cumulative
impacts of multiple stressors, including cooling water intake
structures. EPA requests comment on the potential use of these data for
this purpose.
EPA invites comment on the following documents and information the
Agency is considering as it evaluates possible definitions of adverse
environmental impact and concerns associated with assessing multiple
stressors and their impacts on aquatic communities (see #2-024A-O in
Docket).
2-024A Angermeier, P.L. and J.E. Williams. Conservation of
Imperiled Species and Reauthorization of the Endangered Species Act
of 1973. Fisheries. 19(1): 26-29. 1994.
2-024B Gulf of Mexico SPR Management Strategy Committee. An
Evaluation of the Use of SPR Levels as the Basis for Overfishing
Definitions in Gulf of Mexico Finfish Fishery Management Plans:
Final Report, Gulf of Mexico Fishery Management Council, Tampa, FL.
1996.
2-024C Branstetter, S. Bycatch and its Reduction in the Gulf of
Mexico and South Atlantic Shrimp Fisheries. Gulf & South Atlantic
Fisheries Development Foundation, Inc., Tampa, FL. 1997.
2-024D Crowder, L.B., and S.A. Murawski. Fisheries Bycatch:
Implications for Management. Fisheries. 23(6): 8-17. 1998.
2-024E Weeks, H. and S. Berkeley. Uncertainty and Precautionary
Management of Marine Fisheries: Can the Old Methods Fit the New
Mandates? Fisheries Management, Vol 25, No.12. 2000.
2-024F Boreman, J. Methods for Comparing the Impacts of Pollution
and Fishing on Fish Populations. Transactions of the American
Fisheries Society. 126: 506-513. 1997.
2-024G Schaaf, W.E. et al. Fish Population Responses to Chronic and
Acute Pollution: The Influence of Life History Strategies.
Estuaries. Vol. 10, No.3, page 267-275. September 1987.
2-024H Schaaf, W.E. et al. A Simulation Model of How Life History
Strategies Mediate Pollution Effects on Fish Populations. Estuaries.
Vol. 16, No.4, page 697-702. December 1993.
2-024I Vaughan, D. S., R. M. Yoshiyama, J. E. Breck, and D. L.
DeAngelis. Modeling Approaches for Assessing the Effects of Stress
on Fish Populations in Contaminant
[[Page 28862]]
Effects on Fisheries. John Wiley & Sons, New York. p. 259-278. 1984.
2-024J National Marine Fisheries Service. Scientific Review of
Definitions of Overfishing in US Fishery Management Plans. August
1994.
2-024K National Marine Fisheries Service. Scientific Review of
Definitions of Overfishing in US Fishery Management Plans--
Supplemental Report. March 1996.
2-024L Restrepo, Victor R., Pamela M. Mace and Fredric M. Serchuk.
The Precautionary Approach: A New Paradigm or Business as Usual? Our
Living Oceans. 1998.
2-024M National Marine Fisheries Service. Atlantic Mackerel, Squid,
and Butterfish Fishery Management Plan--Amendment 8. August 1998.
2-024N National Marine Fisheries Service. The Coastal Pelagic
Species Fishery Management Plan--Amendment 8. December 1998.
2-024O National Marine Fisheries Service. New England Fishery
Management Council. Essential Fish Habitat Amendment. October 1998.
In addition, EPA invites comment on the following documents:
2-020A National Marine Fisheries Service. Our Living Oceans. Report
on the Status of U.S. Living Marine Resources. NOAA Technical Memo
#NMFS-F/SPO-41. 1999. (Available at: http://spo.nwr.noaa.gov/unit17.pdf)
2-018A Boreman, J. Surplus Production, Compensation, and Impact
Assessments of Power Plants. Environmental Science & Policy. (31)
445-449. 2000.
EPA has gathered new data on adverse environmental impact
determinations made in connection with State and Federal NPDES Permit
decisions. EPA invites comment on the following documents compiled in
#2-025A-W in the Docket.
2-025A State of California, California Regional Water Quality
Control Board, Central Coast Region. Staff Report for Regular
Meeting of October 27, 2000. Supplemental Sheet, Item Number 23,
Subject: Diablo Canyon Nuclear Power Plant, Resolution of Thermal
Discharge and Entrainment/Impingement Impacts. October 2000.
2-025B California Regional Water Quality Control Board, Central
Coast Region. Waste Discharge Requirements Order No. 00-041, NPDES
No. CA00062554 for Duke Energy North America, Moss Landing Power
Plant, Units 1, 2, 6, and 7 Monterey County. October 27, 2000.
2-025C New Jersey Department of Environmental Protection and Energy
Wastewater Facilities Regulation Program. In the Matter of NJDEP
Public Hearing on Draft Permit No. NJ 0005652 for the Salem Nuclear
Generating Station, Transcript Proceedings. Thursday, September 9,
1993.
2-025D New Jersey Department of Environmental Protection and Energy
Wastewater Facilities Regulation Program, Bureau of Standard
Permitting. Public Notice, Consideration of Section 316 Variance
Request, Intent to Renew Existing New Jersey Pollutant Discharge
Elimination System/Discharge to Surface Water (NJPDES/DSW) Permit
NJ0005622, and Notice of Public Hearing. June 24, 1993.
2-025E State of New Jersey Department of Environmental Protection,
Division of Environmental Protection, Division of Water Quality.
Fact Sheet for NPDES Permit Including Section 316(a) Determination
and Section 316(b) Decision, Permit No. NJ0005622. July 1994.
2-025F State of New Jersey Department of Environmental Protection,
Division of Environmental Protection, Division of Water Quality.
Response to Comments Document PSE&G Salem Generating Station,
NJPDES/DSW Draft Permit NJ0005622. July 1994.
2-025G State of New Jersey Department of Environmental Protection,
Division of Environmental Protection, Division of Water Quality.
PSE&G Salem Nuclear Generating Station NJPDES Permit #NJ0005622.
1994.
2-025H EPA Region IV. Record of Decision on Tampa Electric Company
Big Bend Unit 4, NPDES Permit No. FL0037044. April 7, 1982.
2-025I EPA Region IV. Finding of Fact for TVA John Sevier Station.
October 23, 1978.
2-025J EPA Region IV. 316 Determinations, John Sevier Steam Plant,
NPDES No. TN0005436. April 15, 1986.
2-025K EPA Region IV and Florida Department of Environmental
Regulation. Joint Public Notice, No. 78FL0080. Notice of Proposed
Modification of National Pollutant Discharge Elimination System
Permit and Notice of Consideration for State Certification, Crystal
River Power Plant Units 1, 2, and 3, NPDES No. FL0000159. January 8,
1978.
2-025L EPA Region IV. Public Hearing Statement, Florida Power
Corporation Crystal River Units 1, 2, and 3. February 3, 1987.
2-025M EPA Region IV. Biological Assessment, Florida Power
Corporation Crystal River Power Plant, 316A & B Demonstration. Date
Unknown.
2-025N EPA Region IV. In the Matter of Florida Power Corporation
Crystal River Power Plant Units 1, 2, and 3, Citrus County Florida,
NPDES Permit No. FL0000159, Findings and Determinations Pursuant to
33 U.S.C. Section 1326. September 1988.
2-025O EPA Region IV and Florida Department of Environmental
Regulation. Joint Public Notice, No. 88FL036, Notice of Proposed
Reissuance of National Pollutant Discharge Elimination System
Permit, Tentative Determination of Substantial Damage, Tentative
Section 316 Findings and Determinations, Notice of Consideration for
State Certification, and Notice of Public Hearing, Crystal River
Power Plant Units 1, 2, and 3, NPDES No. FL0000159. May 19, 1988.
2-025P EPA Region IV. Florida Power Corporation, Crystal River
Power Plant Units 1, 2, and 3, NPDES No. FL0000159, Public Hearing.
February 4, 1987.
2-025Q EPA Region IV. Fact Sheet, Application for National
Pollutant Discharge Eliminations System Permit to Discharge Treated
Wastewater to U.S. Waters, Application No. FL0000159, Florida Power
Corporation, Crystal River Power Plant Units 1, 2, and 3. September
1, 1988.
2-025R EPA Region IV and Florida Department of Environmental
Regulation. Joint Public Notice, No. 86FL100, Notice of Proposed
Reissuance of National Pollutant Discharge Elimination System
Permit, Tentative Determination of Substantial Damage, Tentative
Section 316 Findings and Determinations, Notice of Consideration for
State Certification, Crystal River Power Plant Units 1, 2, and 3,
NPDES No. FL0000159. December 18, 1986.
2-025S Kaplan, Charles, EPA Region IV. Letter to Dr. Patsy Y.
Baynard, Director Environmental and Licensing Affairs, Florida Power
Corporation, RE: Crystal River Power Plant Units 1-3, NPDES No.
FL0000159, 316(a &b) Demonstration Meeting--September 18, 1985 and
Attachments. August 23, 1985
2-025T White, John C., EPA Region IV. Letter to Honorable Lawton
Chiles, June 8, 1978.
2-025U Hart, Dennis. State of New Jersey Department of
Environmental Protection, Division of Environmental Protection,
Division of Water Quality. Letter to Richard L. Caspe, EPA Region II
RE: PSE&G Salem Nuclear Generating Station, NJPDES #NJ0005622.
January 31, 1994.
2-025V Caspe, Richard L, EPA Region II. Letter to John Weigart,
State of New Jersey Department of Environmental Protection, Division
of Water Quality RE: Response to Dennis Hart Letter of January 31,
1994. 1994
2-025W Hicks, Delbert B., EPA Region IV. Letter to Charles Kaplan,
EPA RE: Crystal River 316(b) Findings. Date Unknown.
In addition, EPA invites comment on the following documents:
2-013F Kurkel Patricia, NOAA. Letter to Deborah Hammond, EPA Region
RE: Review of Draft Permit (Salem Nuclear Generating Station) II.
February 28, 2001
5. Other Options for Interpreting Adverse Environmental Impact
In the proposed rule preamble, EPA discussed several other option
for interpreting adverse environmental impact. One option would be to
look to section 316(a) of the Clean Water Act for guidance in assessing
adverse environmental impact from cooling water intake structures.
Section 316(a) addresses requirements for thermal discharge and
provides that effluent limitations associated with such discharge
should generally not be more stringent than necessary to ``assure the
protection and propagation of a balanced indigenous population of
shellfish, fish, and wildlife in and on that body of water.'' The same
language
[[Page 28863]]
is repeated in section 303(d) with reference to Total Maximum Daily
Load listing requirements for waters impaired by thermal discharge.
These statutory provisions show that Congress intended this standard to
be used in evaluating the environmental impacts of thermal discharges.
Some have suggested that since thermal discharges are usually paired
with cooling water intake, it may be reasonable to interpret the Clean
Water Act to apply this standard in evaluating adverse environmental
impact from cooling water intake structures as well.
Another option would be to define adverse environmental impact as a
level of impingement and entrainment that is ``recurring and non
trivial.'' 65 FR 49074. EPA is considering refining that idea by
interpreting ``recurring and non trivial'' impacts as the degree of
impingement and entrainment that would have resulted from the use of
the traditional technologies in use at the time the Clean Water Act
(including section 316(b)) was enacted in 1972. EPA believes that the
traditional technology in use at that time would have been a once-
through cooling system with a simple bar rack screen to minimize
entrainment of large debris items and a simple mesh screen to minimize
entrainment of small debris items into the condenser. Under this
approach, EPA would define the common performance of the traditional
technologies as having an adverse environmental impact and then
consider reasonable requirements to improve over that performance. EPA
recognizes that the statutory phrase ``minimize adverse environmental
impact'' could be interpreted in a way that focuses on the
environmental impacts of cooling water intake structures to determine
whether and to what extent these impacts are ``adverse,'' perhaps using
a population approach, as suggested by some. However, EPA believes that
the phrase ``best technology available to minimize adverse
environmental impact'' could also reasonably be interpreted in a way
that focuses on the technology, rather than the impact, in a manner
analogous to the technology-based standards applicable to point source
dischargers under Clean Water Act sections 301, 304, and 306. EPA
requests comment on these alternative approaches for interpreting
adverse environmental impact.
EPA also notes that a number of other options for interpreting or
defining adverse environmental impact were discussed in the proposal
(65 FR 49074), and does not intend in this notice to suggest that they
are not still under active consideration. EPA is still considering all
of the options for interpreting and defining adverse environmental
impact that were discussed in the proposal as options for the final
rule and invites further comment on any of them.
F. Additional Data Related to the Specific Technology Limits in the
Proposed Regulations
1. Proportional Flow Limits for Freshwater Streams and Rivers and Tidal
Rivers, Estuaries
EPA proposed specific flow limits of 5% of mean annual flow of
freshwater streams and rivers because the Agency determined this would
be the best way to protect 95% of the aquatic life in these water
bodies from entrainment. EPA also proposed to limit withdrawals from
estuaries and tidal rivers to 1% of the tidal excursion. The proposed
limit is based on the concept that withdrawal of a unit volume of water
from a water body will result in the impingement and/or entrainment of
an equivalent unit of aquatic life (particularly eggs and larval
organisms) suspended in that volume of the water column. This, in turn,
is related to the idea that the density of aquatic organisms withdrawn
by a cooling water intake structure is equivalent to the density of the
organisms in the water column. Thus, if 5% of the mean annual flow (or
alternative proposed levels of 10% and 15% for freshwater bodies) is
withdrawn, it will result in the impingement and/or entrainment of 5%
(or alternative) of the aquatic life in that water body.
Some commenters asserted that this assumption is not valid. They
argued that aquatic organisms are not uniformly distributed within the
water column and that patchy distribution of aquatic organisms
invalidates the assumption that withdrawal of a certain percentage of a
water body would correlate to an equivalent withdrawal of aquatic life.
Since proposal, EPA received new information concerning the
distribution and density of organisms in natural waters. In #2-013 D
and E in the Docket, EPA is providing for comment information on the
density of organisms in the Hudson and Delaware rivers as well as in
Mt. Hope Bay. In #2-013J in the Docket, the Agency is also providing
for comment information on models identified by EPRI that may be used
to estimate and/or evaluate aquatic organism densities in order to
estimate entrainment rates. EPA believes the use of these data and
modeling approaches is supportable because assessments of aquatic
organism densities are the basis for calculations for the empirical
transport model which is, in turn, the basis for calculating
conditional mortality rates. Both of these methods are widely used by
industry and regulatory agencies to estimate losses related to cooling
water intake structures.
The Agency has identified information from other State and Federal
agencies that supports the need for flow-based standards to protect
aquatic organisms. This information includes methodologies for
determining the limiting flow conditions for a waterbody for the
protection and propagation of aquatic life and wildlife in stream
environments (see #2-026B, #2-026C, and #2-026D in the Docket). EPA
invites comment on the following documents:
2-026A Goodyear, C.P. Mathematical Methods to Evaluate Entrainment
of Aquatic Organisms by Power Plants. U.S. Fish and Wildlife Service
National Power Plant Team. FWS/OBS-76/20.3. 1977.
2-026B Lang, Vernon. Questions and Answers on the New England Flow
Policy. U.S. Fish and Wildlife Service. Concord, New Hampshire. May
11, 1999.
2-026C Kulik, Brandon. A Method to Refine the New England Aquatic
Base Flow Policy. Rivers. Volume 1, Number 1. Pages 8-22.
2-026D Washington State, Department of Ecology. Questions and
Answers--An Overview of the Instream Flow Incremental Methodology.
QWR-95-1-4. August 1995.
2-013J Dixon, D.A., EPRI. Catalog of Assessment Methods for
Evaluating the Effect of Power Plant Operations on Aquatic
Communities. 1999.
2-013L Cacela, Dave, Stratus Consulting Inc. Memo to JT Morgan, EPA
RE: Planned Analysis of Ambient Larval Densities and I&E. April 20,
2001.
EPA also invites comment on the following supplement to the
discussion at proposal of the proposed limitations on intake flow as a
proportion of waterbody flow (see 65 FR 49085-49087). EPA is
considering whether a proportional flow limitation would have the
effect of reducing or minimizing adverse environmental impact that may
be associated with withdrawal of large volumes of cooling water from
relatively small water bodies. EPA is considering and seeks comment, in
particular, about the efficacy of the proposed limitation associated
with the mean annual flow of freshwater streams and rivers. These
limitations could be effective because large-volume withdrawals
occurring on a year-round basis may affect all aspects of the life
cycles of the organisms susceptible to entrainment. Inasmuch as some
commenters have asserted that aquatic organisms are not uniformly
distributed within the water column
[[Page 28864]]
(i.e., exhibit ``patchy'' distribution), the withdrawal of large
volumes of water may, over the course of the year, smooth out the
``patchiness'' and subject a portion of the biota commensurate with
intake flow to entrainment. The Agency is considering and seeks comment
on whether a proportional flow standard based on mean annual flow
proposed at 40 CFR 125.84(b) will effectively protect smaller
freshwater rivers and streams from levels of impingement and
entrainment proportional to the volume of water withdrawn from these
waterbodies.
2. Limitation on Altering Stratification in Lakes and Reservoirs
At least one commenter asserted that the regulation as proposed can
be interpreted to require that no alteration of the natural thermal
stratification is allowed, regardless of the size, limit, or location
relative to the intake structure. They further asserted that this
standard is unachievable and should not be included in the final rule.
The Agency continues to consider whether these regulations should
limit withdrawals of large quantities of cooling water from lakes which
are naturally stratified. In particular, EPA is considering whether the
withdrawal of large quantities of subsurface water may negatively
affect a lake's thermal stratification and seasonal turnover dynamics.
EPA is also considering whether cooling water withdrawals from deeper,
colder areas within lakes, followed by discharge of used cooling water
either at, or where it may rise to, the lake's surface, may bring
nutrient-rich, hypolimnion \1\ water to the surface where it may
stimulate the growth and respiration of harmful levels of algae and
other biological assemblages within a lake. EPA is considering and
invites comment on whether such concerns are appropriately addressed in
regulation for cooling water intake structures or should be addressed
by a permitting agency when it establishes any limitations on the
discharge of the cooling water.
---------------------------------------------------------------------------
\1\ Hypolimnion: The deep, cold, and relatively undisturbed
region below the thermocline. From: Hutchinson, G.E. 1975. A
Treatise on Limnology, Volume 1, Part 1--Geography and Physics of
Lakes. John Wiley & Sons, New York. (See #2-027B in the Docket).
---------------------------------------------------------------------------
EPA is also considering whether the proposed limitation to ``not
alter'' and ``not upset'' natural stratification may be subject to
considerable interpretation such that the intent of that portion of the
proposed regulation is not sufficiently clear. Thus, the Agency
solicits public comments on the information contained in ``Cumulative
Impacts of Power Plant Cooling Systems on Lake TMDLs'' (see #2-027A in
the Docket) which supports the idea of maintaining natural
stratification. EPA also requests comment on the use of the phrase
``not disrupt the natural stratification and turnover pattern of the
source water body'' and invites commenters to suggest other
alternatives to the terms ``not alter the natural stratification of the
source water body'' or ``not upset the natural stratification of the
source water body'' as used at 65 FR 49077 and 49118.
2-027A Chen, C.W., L.H. Ziemelis, J. Herr and R.A. Goldstein.
Cumulative Impacts of Power Plant Cooling Systems on Lake TMDLs.
Proceedings of an EPRI Conference : Power generation Impacts on
Aquatic Resources. Atlanta, Georgia. April 12-15, 1999.
3. Velocity
EPA proposed 0.5 ft/sec as a velocity limit in all waters except
those 50 meters beyond the littoral zone in lakes and reservoirs. Since
proposal, EPA has gathered or received data on the swimming speed of
fish of various species from EPRI (see W-00-03, 316(b) Comments 2.11),
from the University of Washington studies that support the current
National Marine Fisheries Service velocity standard for intake
structures and from references included in comments from the
Riverkeeper (see Turnpenny, 1988, referenced in W-00-03, 316(b)
Comments 2.06. Document found in #2-028B in the Docket). All of the
swim speed data used is contained in #2-028 in the Docket. Also located
in #2-028 in the Docket, is new data EPA received from the National
Marine Fisheries Service on screen design consideration for approach
velocities to protect juvenile salmonids.
2-028A EPRI. Technical Evaluation of the Utility of Intake Approach
Velocity as an Indicator of Potential Adverse Environmental Impact
Under Clean Water Act Section 316(b). Technical Report. 1000731.
2001.
2-028B Turnpenny, A.W. H. The Behavioral Basis of Fish Exclusion
from Coastal Power Station Cooling Water Intakes. Central
Electricity Generating Board Research Report, RD/L/3301/R88. 1988.
2-028C Smith, L.S., L.T. Carpenter. Salmonid Fry Swimming Stamina
Data for Diversion Screen Criteria. Prepared by Fisheries Research
Institute, University of Washington, Seattle, WA for Washington
State Department of Fisheries and Washington State Department of
Wildlife. 1987.
2-028D Pearce, Robert O. and Randall T. Lee. Some Design
Considerations for Approach Velocities at Juvenile Salmonid
Screening Facilities. American Fisheries Symposium. 1991.
The Graph (Swim Speed Data, #2-029 in the Docket), is a compilation
of the data EPA received on fish swimming speeds as it varies with the
length of the tested fish and with water temperature. These data show
that, not accounting for any safety margin to address screen fouling
(which increases velocity in screen areas that remain open), a 1.0 ft/s
velocity standard would protect 78% of the tested fish, and a 0.5 ft/s
velocity would protect 96% of these fish. EPA is evaluating these data
and considering whether to maintain or modify the proposed velocity
limitation. To estimate the extent to which a low-velocity performance
standard might affect new facilities, EPA also is evaluating
preliminary data on the design intake velocity of existing facilities
from the Agency's section 316(b) survey questionnaire (see Percentage
Distribution of Intake Velocities for Recently Constructed In-Scope
Cooling Water Structures, #2-030 in the Docket). These preliminary data
indicate that 73% of the manufacturing facilities and 62% of the
electricity generating facilities built in the last 15 years meet the
proposed velocity limitation of no more than 0.5 feet/second.
EPA is evaluating a number of other issues that could cause it to
modify the proposed velocity limitation. As discussed at Section A.3
above, EPA received comments asserting that offshore and coastal oil
and gas platforms might be subject to the rule and face difficulties
meeting the proposed velocity limitation due to biofouling concerns in
marine waters and engineering/technical issues associated with drilling
platforms. EPA is evaluating these assertions and seeking additional
information on this topic. Should EPA include new offshore and coastal
oil and gas platforms within the scope of the final regulations, the
Agency will decide whether subcategorization and a different velocity
limitation may be appropriate for these facilities. EPA is also
investigating whether biofouling is an issue for cooling water intake
structures at land-based facilities.
In response to comments, EPA is evaluating whether the 0.5 ft/s
velocity limitation is appropriate or necessary for offshore intakes
equipped with velocity caps. Velocity caps work by changing vertical
flows, which fish do not avoid because they can not detect, to
horizontal flows, which fish detect and avoid. Commenters suggested
that offshore intakes with velocity caps designed with velocities
greater than 0.5 ft./s would be more effective in reducing biofouling
than those with lower
[[Page 28865]]
velocities and would be more effective in protecting fish located in
waterbodies with higher flow velocities. Commenters also raised issues
associated with the effects of tidal and long-shore currents on
velocities in the vicinity of velocity caps. EPA identified
documentation (see Turnpenny, 1988, W-00-03, 316(b) Comments 2.06 in
#2-028B in the Docket; Mussalli, Taft, Larson, 1980; and Schlenker 2001
in #2-031B in the Docket ) that may substantiate commenters' concerns
with the influence of tidal and current velocities on velocities at a
velocity cap. However, the documentation also provides design solutions
to minimize the influence of water body currents on velocity caps. EPA
identified documents indicating that, in these circumstances, limiting
velocities at intakes with velocity caps may afford some additional
protection, but that the entrainment reduction may be small. One of the
documents states that the location of the submerged intake structure
may be the most important factor in limiting the impact from the intake
structure. EPA requests comment on the following documents.
2-031A Mussalli, Yusuf, et al. Offshore Water Intakes Designed to
Protect Fish. In: Journal of the Hydraulics Division, Proceedings of
the American Society of Civil Engineers, Vol. 106, No. HY11. 1980.
2-031B Schlenker, Stephen J, Army Corps of Engineers. Email on:
Section 316(b) Rulemaking (Velocity) to Kelly Meadows, Tetra Tech,
Inc. April 18, 2001.
2-028B Turnpenny, A.W.H. The Behavioral Basis of Fish Exclusion
from Coastal Power Station Cooling Water Intakes. Central
Electricity Generating Board Research Report, RD/L/3301/R88. 1988.
EPA also requests comment on the American Society of Engineers'
Design of Water Intake Structures for Fish Protection (see #2-032 in
the Docket) which suggests that design velocities should range from 0.5
ft/s to 1.5 ft/s. Based on comments and these documents, the Agency
requests comment on allowing velocities of up to 1.5 ft/s at offshore
intake structures with velocity caps in all types of waterbodies.
2-032 American Society of Engineers. Design of Water Intake
Structures for Fish Protection. Section III. Engineering Factors
Influencing Intake Design and Parts of Section VI. Practical Fish
Protection Methods (Velocity Cap for Offshore Water Withdrawals).
New York. pp. 13-23 and 66. 1982.
Finally, EPA is considering comments on where velocity should be
measured. Some commenters assert that velocity should be measured on
the basis of ``approach-velocity'' rather than the proposed design
intake velocity (also known as through-screen or through-technology
velocity). Other commenters assert that velocity should be measured
where its value is highest, which might be at the screen face or at
another location in front of the screen (for example, at a narrow
constriction in an intake canal or at a narrow opening in a curtain
wall placed in front of the screen). (See W-00-03, 316(b) Comments 2.06
(River Keeper) and 1.56 (EPRI). EPA is also providing for comment, the
document contained in #2-033 in the Docket.
2-033 Ray, S.S., R.L. Snipes, and D.A. Tomljanovich. A State of the
Art Report on Intake Technologies. Environmental Protection Agency
Office of Research and Development, Office of Energy, Minerals, and
Industry. EPA 600/7-76-020; TVA PRS-16. 1976.
4. Rulemaking Framework--Burden on States To Implement Section 316(b)
on a Case-by-Case Basis
One objective of EPA's proposed rule was to develop section 316(b)
requirements applicable to broad classes of waterbodies in order to
minimize the permitting burden on the States (which, for the most part,
are the permit authorities responsible for implementing section
316(b)). Some States have expressed concern about adopting a site-
specific approach for new facilities which, in their view, would
require a burdensome expenditure of resources to develop section 316(b)
requirements for each new facility. States that commented on the
proposed regulations, including Michigan, New York, New Jersey, and
Alaska, generally supported the adoption of minimum technology
requirements. Michigan and New Jersey specifically expressed concern
about the existing case-by-case approach. Only Louisiana specifically
opposed adoption of the proposed regulations, stating that any
requirements for cooling water intake structures should be implemented
under the CWA section 404 program or under section 10 of the Rivers and
Harbors Act.
EPA invites comment on additional information documenting resources
that several States have devoted to implementing section 316(b) on a
case-by-case basis (see #2-034A-B in the Docket). EPA will consider
this information as the Agency evaluates the practicality of various
alternatives for the final rule. EPA invites commenters to submit any
other data on the workload associated with implementing section 316(b)
under the current case-by-case approach. EPA also invites comment on
the need for nationally applicable regulations, as opposed to a site-
specific approach, in order to minimize the burden on States for
permitting new facilities. EPA invites comment again on its estimates
of the cost to States to implement the proposed requirements (See #1-
5067-PR, Information Collection Request for Cooling Water Intake
Structures New Facility Proposed Rule, Chapter 6), and acknowledges
that these costs may change based on any changes in the final
regulations.
2-034A Sarbello, Bill, NYDEC. Memo to J.T. Morgan, EPA RE: Costs
Associated with 316(b) Permitting Activities in NY State. February
26, 2001.
2-034B Reading, Jeffrey, NJDEP. Letter to Sheila Frace, EPA RE:
Request for Information Regarding Staffing and Resources Required in
Applying Section 316(b). April 24, 2001.
5. Recently-Constructed Facilities Already Implementing the Proposed
New Facility Requirements
To estimate the percentage of manufacturers, utilities and
nonutilities constructed in the last fifteen (15) years that meet
various proposed requirements for cooling water intake structure
technology, EPA performed an analysis using detailed questionnaire
data. These preliminary data indicate that 47% of the recently-
constructed manufacturers, 42% of the recently-constructed
nonutilities, and 53% of the recently-constructed utilities meet the
proposed requirement to install additional design and construction
technologies such as a traveling screen with a fish return system, a
wedge wire screen, or a fine mesh screen with a fish return system.
(see #2-035A in the Docket).
EPA performed a similar analysis of the detailed questionnaire data
to estimate what percentage of in-scope facilities constructed during
the last 15 years meet the proposed requirement for reducing intake
flow to a level commensurate with use of a recirculating cooling water
system. These preliminary data show that 38% of the manufacturing
facilities, 66% of the nonutility facilities, and 70% of the utility
facilities have closed-cycle, recirculating cooling systems. (see #2-
035B in the Docket). EPA is now working to verify the accuracy of these
estimates as they appear to be lower than the estimated percentages in
the record at proposal based on information from DOE's Energy
Information Agency and RDI's NEWGen database.
Finally, EPA analyzed the detailed questionnaire data to estimate
what percentage of the in-scope manufacturing, utility and nonutility
facilities constructed in the last 15 years meet all three of the
proposed
[[Page 28866]]
requirements for: (1) Reducing intake capacity to a level commensurate
with use of a closed-cycle recirculating cooling system: (2) reducing
intake velocity to no more than 0.5 ft/sec; and (3) developing a plan
and installing additional design and construction technologies. The
analysis shows that 16% of these manufacturers, 31% of these
nonutilities, and 44% of these utilities meet all three performance and
technology standards. (see #2-035C in the Docket). Based on these data,
EPA is considering and invites comment on whether it is reasonable for
new facilities to meet these proposed standards.
G. Revision in Costing and Energy Impacts Estimates
1. Energy Consumption Associated With Alternative Cooling Systems
At proposal, EPA invited comment on a regulatory alternative that
would require zero or extremely low intake flow commensurate with
levels achievable through the use of dry-cooling systems. EPA discussed
and invited comment on a number of issues including any potential
energy penalty at new facilities using dry-cooling systems.
Alternatives to conventional wet cooling towers or once-through
systems are often described as dry cooling systems but, in fact, may
include hybrid wet-dry cooling systems. These alternative cooling
systems may be less efficient in rejecting heat than conventional wet
cooling towers or once-through systems. Alternative cooling systems
generally have higher parasitic (fan) electrical loads and can create a
higher pressure (temperature) in the steam turbine condenser. Both of
these factors can decrease the thermal efficiency and power output of
the plant. Estimating the nature of this penalty is difficult given
that the facility could be designed and operated in a variety of ways
using one of these alternative cooling technologies. As discussed at
proposal, climactic conditions may significantly influence the
efficiency of alternative cooling systems (see 65 FR 49081). For
instance, dry cooling systems can be less efficient during warmer
periods than during cooler periods.
At proposal, EPA's discussion of energy inefficiency due to cooling
requirements focused on energy penalties associated with the operation
of dry cooling systems. Since proposal, EPA has sought out information
measuring and/or estimating comparable efficiencies of cooling towers
(wet, dry, and hybrid) to once-through cooling systems. EPA discovered
some additional information comparing dry and hybrid cooling towers to
wet cooling towers and obtained a limited amount of information on the
topic through public comment. EPA invites comments on the following new
data (see #2-036A-D in the Docket):
2-036A Pryor, Marc. ``Supplemental Testimony to the La Paloma
Generating Project (98-AFC-2) Final Staff Assessment. California
Energy Commission. April 20, 1999.
2-036B Western Area Power Administration Sierra Nevada Region Sutter
Power Plant. ``Summary of the Presiding Members Proposed Decision on
Other Commission Decisions'', Chapter 3. April 1999.
2-036C SAIC. Memo to File RE: Steam Plant Energy Penalty Evaluation.
April 20, 2001.
2-036D Edison Electric Institute. Environmental Directory of Power
Plants. 1996
EPA intends to revise the operation and maintenance costs of its
estimates for wet and dry cooling towers to include the marginal cost
of energy penalties. EPA intends to estimate any energy penalties as
compared to cooling systems that new facilities would be likely to
install absent final regulations. When EPA projects that a facility
would switch from a once-through cooling system to a closed-cycle
cooling system employing a wet cooling tower to comply with final
regulations, EPA will estimate the energy penalty based on values
derived from documents already in the record, the new materials
referenced above, and similar sources of information. To project the
energy penalty of dry cooling systems compared to once-through cooling
systems, EPA will use its estimate of the energy penalty of a closed-
cycle cooling system employing a wet cooling tower, then estimate any
additional energy penalty imposed by use of a dry cooling system based
on documents already in the record, the new materials referenced above,
and similar sources of information. To project the energy penalty of
dry cooling towers compared to a closed-cycle cooling system employing
a wet cooling tower, EPA will estimate the energy penalty based on
documents already in the record, the new materials referenced, and
other relevant sources of information.
2. Specific Revisions to Inputs to Costing Model for Wet Cooling Towers
and Dry Cooling Systems
Some public comments on the proposed regulations assert that EPA's
annual cost estimates for wet cooling towers did not include essential
components such as wiring, foundations, condenser pumps, and noise
attenuation treatment. EPA did not separately identify these items in
the estimates presented at the time of proposal because the Agency used
empirical models based on actual construction project costs to verify
its costing estimates. These empirical models represent the cost to the
plant and include all essential components. However, to further
document the annual costs that EPA used in its cost estimates for wet
cooling towers, EPA requests comment on the new data in EPA's April 23,
2001 memorandum titled, ``Supporting Documentation for Unit Costs''
contained in #2-037 of the Docket.
Since proposal, EPA collected additional project cost information
to verify its empirical cost models. EPA requests comment on the
capital cost information contained in #2-037 of the Docket.
Based on literature and vendor information, EPA's proposal
estimated a 10 degree Fahrenheit design approach value for wet cooling
towers. EPA requests comment on information contained in #2-037 of the
Docket in support of this value.
EPA proposed that operation and maintenance (O&M) costs of wet
cooling towers reflect an ``economy of scale'' with increasing size.
Therefore, in some cases, as the size of the cooling tower increases,
O&M costs decrease per unit of water cooled. EPA is supplementing the
record to support its assumption that there are ``economies of scale''
based on comments received on the proposal. EPA has placed information
in the record to support EPA's methodology for calculating O&M costs
for wet cooling towers (see #2-037 in the Docket).
At proposal, EPA assumed that some new facilities would use once-
through cooling systems absent final regulations and would switch to a
closed-cycle cooling system employing a wet cooling tower. In these
cases, EPA costed the water flow used in the recirculating cooling
tower as 15 percent of the original flow. EPA acknowledges that this
assumption does not match standard industry design practice. EPA
intends to revise its estimates of recirculating flow upward based on
the entire flow of cooling water through the cooling tower and will
size and cost the recirculating pumps accordingly.
EPA's proposed wet cooling tower costs may have included elevated
capital costs due to a design estimate that plume abatement would be
applied at a large proportion of the cooling towers built as a result
of the regulations. Since proposal, EPA sought
[[Page 28867]]
additional information regarding industry practice for wet cooling
tower construction and the use of plume abatement. Through vendor
contact, EPA learned that wet cooling towers generally do not
incorporate plume abatement technologies. Therefore, EPA intends to
revise its wet cooling tower estimates to reflect a reduced
implementation of plume abatement techniques. EPA also intends to study
the sensitivity of costs with respect to this aspect of its cost
estimates. (See #2-037 in the Docket.)
At proposal, EPA estimated the marginal annual cost of dry cooling
towers over once-through cooling systems but did not explain its
methodology for estimating the capital and O&M costs of dry cooling
towers. EPA invites comment on the information the Agency used to
estimate annual costs of dry cooling towers placed in the record. (See
#2-037 in the Docket.)
EPA obtained further information relating to the capital cost of
dry cooling towers since proposal. The Agency invited comment on the
following information:
2-037 EPA. Memo to File RE: Supporting Documentation for Unit Cost
Analysis. April 23, 2001.
In addition, EPA invites comment on the following documents:
2-036A Pryor, Marc. Supplemental Testimony to the La Paloma
Generating Project (98-AFC-2) Final Staff Assessment. California
Energy Commission. April 20,1999.
2-036B Western Area Power Administration Sierra Nevada Region
Sutter Power Plant. Summary of the Presiding Members Proposed
Decision on Other Commission Decisions, Chapter 3. April 1999.
EPA also obtained information on the cost of dry cooling systems
through public comment. Cost information, as well as general comments
received on dry cooling are included in the public record: (See #2-
038A-B in the Docket.)
2-038A Dougherty, Bill. Comments on the EPA's Proposed Regulations
on Cooling Water Intake Structures for New Facilities. Tellus
Institute. November 8, 2000.
2-038B Burns Engineering Services, Inc. and Wayne C. Micheletti,
Inc. Comparison of Wet and Dry Cooling Systems for Combined Cycle
Power Plants. November 4, 2000.
2-038C Public Comments on Dry Cooling in Response to Proposed Rule
of August 10, 2000.
3. Other Environmental Impacts
EPA discussed the water quality and non-water quality impacts of
cooling towers (both wet and dry) at proposal (see 65 FR 49075 and 65
FR 49081). However, EPA did not quantify all impacts that may result
from implementation of the rule. For the final rule, EPA intends to
estimate, to the extent possible, the marginal increases in emissions
of air pollutants associated with wet and dry cooling towers. The
Agency intends to compare projected emissions under the rule to
projected emissions absent the rule. (At proposal, EPA projected that,
regardless of the outcome of the rule (that is, absent these
regulations) a majority of units would have wet cooling towers and a
minority would have once-through or dry cooling systems.)
EPA may estimate air emissions using the permit application
calculations required by the Colorado Department of Public Health and
Environment (CDPHE), Colorado Air Pollution Control Division,
Stationary Sources Program. This program requires emissions estimates
for new power generating permits according to the codified guidance at
40 CFR chapter 1, appendix W to part 51 (July 1, 1999). The technique
would use emissions factors from the Compilation of Air Pollutant
Emission Factors, Volume I (AP-42) for stationary turbines and derive
estimates of pollutant emissions for each type of unit. EPA would
adjust the emissions estimates, when appropriate, to reflect a marginal
comparison by using energy penalty estimates. For example, in the case
where EPA examines any increase in emissions of air pollutants due to
dry cooling, it would base this estimate on a calculation of any energy
penalty associated with dry cooling as compared to energy use at plants
projected to install wet closed-cycle cooling systems or once-through
cooling systems absent these regulations. EPA expects that a small
fraction of facilities would not experience any increased air pollutant
emissions because that they are projected to use dry cooling,
regardless of the outcome of the rule.
Alternatively, EPA may estimate air emissions using the Emissions &
Generation Resource Integrated Database (E-GRID2000). This database
integrates data from 18 different federal sources and provides
emissions and resource mix data for every plant, electric generating
company, state and region in the country. From E-Grid 2000, EPA may
generate an emission rate per MWh or loaded hour for NOX,
SO2, CO2, and Hg to estimate increased emissions
at plants that consume additional fuel because they install a wet or
dry cooling tower to comply with final regulations. Such an analysis
would presume that an individual plant increase its loading in order to
meet this energy cost as opposed to delivering less power to the grid
which in turn would be made up by a different plant.
The following references are included in the record for public
review. (See #2-039A-C in the Docket.)
2-039A Kendal, Ashley L. Technical Review Document Operating Permit
960PMR153. March 16, 1998.
2-039B 40 CFR Ch.1 (7-1-99 Edition). Pt. 51, App. W. Pages 390-481.
2-039C EPA. AP-42, Fifth Edition, Volume 1 [Section 3.1]. April
2000. (Available at: http://www.epa.gov/ttn/chief/ap42.)
4. Baseline Biological Characterization Study and Impingement and
Entrainment Monitoring During the Permit Term
EPA's proposed regulations would require a permit applicant to
complete a ``source water baseline biological characterization'' based
on at least one year of pre-operational biological monitoring (proposed
40 CFR. 125.86). The applicant would use this information to develop a
plan for installing additional design and construction technologies
(such as screens, or barrier nets, or well-designed return systems for
impinged fish). This information would also support the permitting
agency (in most cases, a State) in considering whether site-specific
conditions warrant more than the baseline regulatory protections (see
proposed 40 CFR 125.84(f) and (g)). The proposed regulations would also
require permittees to conduct impingement monitoring over a 24-hour
period once per month during the first two years of the permit and to
conduct entrainment monitoring over a 24-hour period no less than
biweekly during the period of peak reproduction and larval abundance.
After two years, the permitting agency could reduce impingement and
entrainment monitoring frequency in the remaining permit term and when
the permit is reissued (proposed 40 CFR 125.87).
The July 2000 ``Information Collection Request for Cooling Water
Intake Structures New Facility Proposed Rule'' (ICR) estimated costs
for the Sourcewater Baseline Characterization Activities and for
entrainment and impingement monitoring based on Bureau of Labor
Statistics base wage rates multiplied by time spent in each labor
category. Direct Labor Costs and Operation and Maintenance Costs were
added to estimate the burden and costs per facility. The ICR states
that the Sourcewater Baseline Characterization costs would include
$19,500 for contracted laboratory assistance with monitoring, taxonomy
and data
[[Page 28868]]
tabulation (plus $500 for other direct costs (ODCs)). Similarly, text
in the ICR states that contracted lab costs for entrainment and
impingement monitoring would amount to $19,500 and $4,580, respectively
(plus $500 in ODCs). Tables 7 and 8 of the ICR indicate that the
Sourcewater Baseline Characterization would cost each facility $11,655
in labor and $750 in ODCs; entrainment monitoring would cost $14,675 in
labor and $4,000 for ODCs; and impingement monitoring would cost $6,736
labor plus $2,000 ODCs. However, the contracted laboratory costs
discussed in the text of the ICR are not included in these tables.
Thus, to eliminate confusion about EPA's estimated costs for biological
monitoring in the ICR, the Agency states that it used the following
cost estimates at proposal: approximately $32,000 for Sourcewater
Baseline Characterization per facility; approximately $38,000 annually
for entrainment monitoring per facility; and approximately $13,000
annually for impingement monitoring per facility. These costs were
considered an average cost for all types of waterbodies combined.
EPA received comment from several commenters, including UWAG and
EPRI, asserting that EPA's proposal underestimated the costs of
biological monitoring (see UWAG comments at W-00-03, 316(b) Comments
1.68 and EPRI's comments at W-00-03, 316(b) Comments 1.56). As
discussed in the memorandum, ``316(b) Monitoring Cost Estimates for New
Facilities,'' EPA has refined its cost estimates and believes it should
use cost ranges that, for the sourcewater baseline characterization and
entrainment monitoring, vary for different types of waterbodies. EPA
invites comment on the following revised cost estimates. (See #2-040 in
the Docket.)
Sourcewater Baseline Characterization: $8,000 to 25,000
for a freshwater stream/river; $8,000 to 35,000 for a lake/reservoir;
$8,000 to 50,000 for an estuary/tidal river; and $8,000 to 70,000 for
an ocean.
Biological Monitoring--Entrainment: $15,000 to 40,000 for
a freshwater stream/river; $15,000 to 40,000 for a lake/reservoir;
$20,000 to 50,000 for an estuary/tidal river; and $20,000 to 50,000 for
an ocean.
Biological Monitoring--Impingement: $10,000 to 25,000 for
a freshwater stream/river, a lake/reservoir, an estuary/tidal river and
an ocean.
To develop these cost estimates, the Agency consulted biological
monitoring practitioners who conduct impingement, entrainment and other
types of biological monitoring studies. These revised estimates reflect
that the equipment, effort and expertise needed to sample an ocean
facility, for example, would be more costly than that needed to monitor
a facility located on a stream or small river.
EPA received comment asserting that a one-year sourcewater
biological characterization would provide information of limited
utility, particularly in estuarine and coastal areas where fish
populations exhibit tremendous inter-annual variability (see EPRI
comments at W-00-03, 316(b) Comments 1.56 in the Docket). Among other
concerns, this commenter asserted that the baseline year may not
represent average population characteristics. In response to these
comments, EPA invites comment on the documents located in #2-041 in the
Docket. This information generally supports the assertion that a multi-
year baseline reduces the confounding effect of year-related phenomenon
on assessments and (see EPA 1990, referenced below) provides a better
basis for evaluating management actions:
2-041A Meador, M.R., T.F. Cuffney and M.E., Gurtz. Methods for
sampling fish communities as a part of the National Water Quality
Assessment Program. U.S. Geological Survey Open-File Report 93-104.
Raleigh, North Carolina. 40p. 1993.
2-041B Leahy, P.P., J.S. Rosenshein, and D.S. Knopman.
Implementation plan for the National Water Quality Assessment
Program. U.S. Geological Society. Open-File Report 90-174, 10 p.
1990.
2-041C Holland, A.F. (ed)., EPA. Environmental Monitoring and
Assessment Program-Near Coastal Program Plan for 1990: Estuaries,
Chapter 2. 1990.
EPA is considering and invites comment on whether it should extend the
time period for the baseline biological characterization study for
tidal rivers, estuaries, and oceans to address inter-annual variability
of fish populations in these areas.
H. Industry Approach
Fast-Track Alternative
In comments on the proposed regulations and in other materials EPA
recently received, the Utility Water Act Group (UWAG), an industry
trade association, has suggested that EPA consider an alternative based
on several of the regulatory alternatives EPA described at proposal
(see UWAG. Email to EPA RE: Brief Description of a Two-track Process.
April 12, 2001, in #2-042 in the Docket). Under this approach, a
company seeking to build a new facility could pursue one of two tracks:
either (1) to commit to one or more of a number of specified
technologies deemed to represent highly protective technology at the
outset or (2) to engage in a site-specific study to determine the best
technology available (BTA) for the site.
Under Track 1 (the ``fast track''), an applicant would commit to
install highly protective technologies in return for expedited
permitting without the need for pre-operational or operational studies
in the source waterbody. Such fast-track technologies might include:
1. Any technologies that limit intake flow to the flow that would
be required by wet closed-cycle cooling at that site and that has an
average approach velocity (measured in front of the cooling screens or
the opening to the cooling water intake structure) of no more than 0.5
fps; or
2. Any technologies that will achieve a level of protection from
impingement and/or entrainment that is within the range expected under
Option 1 for closed-cycle cooling (with 0.5 fps approach velocity) on
the type of waterbody where the facility is to be located. This option
is intended to allow facilities to use either standard technologies, or
new ones, that have been demonstrated to be effective for the species,
type of waterbody, and flow volume of the cooling water intake
structure proposed for their use. Examples of candidate technologies
would include:
a. Wedgewire screens where there is constant flow, as in rivers;
b. Traveling fine mesh screens with a fish return system designed
to minimize entrainment and impingement mortality; and
c. Gunderbooms at sites where they would not be rendered
ineffective by high flows or fouling.
If the operator of a new facility chose to install such highly
protective intake technologies and validated their performance, as
necessary, the permitting agency would not require additional section
316(b) protective measures for the life of the facility, unless EPA
established different technology requirements by rulemaking.
UWAG believes that the record developed to date indicates that the
combination of flows associated with closed-cycle cooling and low
intake velocity reduce entrainment and impingement mortality to such
low levels that adverse environmental impact (``AEI'') is avoided
thereby not just meeting, but exceeding the section 316(b) standard of
protection. UWAG also believes that information in the record and
additional materials described in Section H.2. below demonstrates that
other technologies,
[[Page 28869]]
including those above, when used properly, may provide a level of
protection within the same range and thus would also be highly
protective of aquatic resources.
Closed-cycle cooling and extremely low approach velocities have
been used to avoid levels of entrainment and impingement mortality that
could cause adverse environmental impact. Nevertheless, UWAG states
that some interested parties have argued that EPA cannot support a
finding that such technologies constitute BTA due to factors such as
very high capital and other costs compared to environmental benefits,
cross-media effects, site-specific factors (such as land constraints or
habitat or air emissions concerns), or jurisdictional issues regarding
cooling towers (which some commenters argue are part of the cooling
system, not ``intake structure'' technologies). These stakeholders
argued that such low flows and velocities are far more conservative
than needed to meet the statutory standard of ``best technology
available to minimize adverse environmental impact.'' This objection
would be beside the point under this alternative, because EPA would not
define these technologies as BTA for ``minimizing'' adverse
environmental impact but instead determine that they avoid adverse
environmental impact altogether. Using this approach, the final rule
would reflect EPA's determination that, where the permittee proposes to
use a demonstrated technology that meets the above criteria, the
technology would, in almost every case, avoid adverse environmental
impact and exceed the requirements of section 316(b). UWAG believes
that financing issues associated with uncertainty and delay during
periods of pre-permitting biological study (described in Section H.3
below) would make the fast-track option highly desirable for many new
facility applicants who otherwise might face significant difficulties
that are building new facilities that are urgently needed to meet
increased demand for electricity.
UWAG also suggested that, in conjunction with its fast-track
alternative, EPA should use a similar approach to encourage rather than
foreclose alternative or innovative intake structure technologies that
provide a level of protection reasonably consistent with the criteria
established above. If a proponent of a new facility knows of an
alternative technology but cannot try it without extensive pre-
operational site-specific studies, he or she may not be inclined to
take the risk of developing the new technology. To remove this
disincentive, EPA could allow expedited permitting when an applicant
can demonstrate, as part of its permit application, that the intake
structure technology it proposes will achieve a level of protection
reasonably consistent with the criteria established in Option 1 above.
Such a demonstration would not require source waterbody studies. It
might instead be based on successful use of the innovative technology
at a comparable site or successful testing in a laboratory or a pilot-
scale trial. Some monitoring after the facility begins operating may be
appropriate to validate the design performance of alternative
technologies.
In addition, UWAG suggests that, as part of this approach, EPA
could in the future approve additional, alternative ``fast-track''
technologies based on accumulated experience. There could potentially
be unusual species-specific circumstances in which fast-track
technologies meeting the above criteria would not be sufficient to
avoid adverse environmental impact. While, in UWAG's view, the number
of such sites will be very small, the rule could nevertheless give
permit writers the authority to require additional protective
technology if the permitting agency has information that exceptional
conditions exist such that, even with fast-track technology, the
proposed facility would adversely impact a representative indicator
species in a way that other federal or state requirements, such as the
Endangered Species Act, would not prevent. EPA invites comments on
those proposals as well.
Track 2 of the industry approach would be for facilities and sites
for which the applicant does not want to commit to any of the above
technology options but believes that a close look at site
characteristics, including the local biology, would justify another
intake technology, such as once-through cooling. For these situations,
the applicant could demonstrate to the permitting agency, based on
site-specific studies, either that the proposed intake would not create
an appreciable risk of adverse environmental impact or, if it would
create an appreciable risk of adverse environmental impact, that the
applicant would install technology to ``minimize'' adverse
environmental impact. Such demonstrations would recognize that some
entrainment and impingement mortality can occur without creating
``adverse environmental impact,'' but, where there was an appreciable
risk of adverse environmental impact, the technology that would
``minimize'' it would also be the technology that maximized net
benefits. If the proposed intake created an appreciable risk of adverse
environmental impact, the applicant would have to identify all
reasonably available intake structure technologies that would reduce
the impact to the aquatic community and that would be feasible for the
site. The applicant would also estimate both the costs and benefits of
each such technology, including the impacts of the cooling water intake
structure on aquatic biota, as well as the monetary costs of
construction and operation, energy costs, and environmental costs such
as air pollution, aesthetics, and land use. Summing the costs and
benefits for each ``available'' technology, the permittee would choose
as ``best'' the one that had the highest net benefit. Industry asserts
that efficient methods for assessing costs and benefits, based on a
variety of federal precedents, might be developed to determine the net
benefits without undue delay or uncertainty. Industry did not specify
what federal precedents or methods for assessing benefits would be
applied.
Under the industry approach, the second track would not require the
same type or intensity of study for every site or every proposed plant
design. In designing a Track 2 study to determine whether there is an
appreciable risk of adverse environmental impact and, if so, what will
``minimize'' it, the applicant and permitting agency could apply a
series of tests to focus the study. First, no further study would be
necessary if the intake draws its water from an area not designated for
protection of fish or aquatic life (in accordance with the requirements
of 40 CFR part 131) or an area that does not support or could not
support vulnerable life stages of representative indicator species due
to lack of dissolved oxygen or for other reasons. Second, an intake
structure would not have to be assessed for entrainment if it withdraws
an amount no greater than a given percentage of the source waterbody
that has proven to be extremely conservative. (UWAG asserts that some
interested parties have suggested a value of 5% or less of the 90%
exceedance flow of a river \2\ or 5% or less of the volume of the
biological zone of influence in a lake or reservoir, measured when
entrainable life stages of representative indicator species are
present.) Third, the proposed facility would not have to be assessed
for entrainment if it were designed to
[[Page 28870]]
ensure that entrainment losses of equivalent adults would be less than
a value that has generally proven to be highly conservative or not
inconsistent with fishery management plans. (Some interested parties,
UWAG asserts, have suggested values equal to or less than 1% of the
population of any commercially or recreationally important species and
equal to or less than 5% of the population of non-harvested species.)
The permitting agency would consider survival rates for entrained
representative indicator species in applying this test.
---------------------------------------------------------------------------
\2\ In this case, a facility would not require entrainment
assessment if it withdrew 5% or less of the low flow condition that
is exceeded in a river at least 90% of the time.
---------------------------------------------------------------------------
Under the industry-suggested Track 2 approach, some proposed new
facilities might be able to use the Track 2 tests to show that they
would not cause adverse environmental impact and, therefore, would need
no further analysis. Others might find that the Track 2 tests
eliminated from concern some risks (entrainment, for example) or some
species. For these proposed facilities, once the necessary studies had
been focused by the Track 2 tests, the applicant would assess the
likelihood that the intake would cause an appreciable risk of adverse
environmental impact. They would use a process like that outlined in
EPA's Ecological Risk Assessment Guidelines (see #2-020D in the
docket), using biological, locational, design, and operational data
from the site. If the study showed an appreciable risk of adverse
environmental impact, then the applicant would be obligated to identify
all reasonably available technologies that would be feasible at the
site. It would then perform the cost-benefit analysis described above
to determine which technology would maximize net benefits. EPA requests
comment on this approach.
In considering the industry approach, EPA also solicits comment on
the following potential modifications. EPA is considering a fast-track
approach that would be based on a commitment by the facility to employ
a suite of technologies that would be determined to represent BTA for
the fast-track option. The technologies under consideration are:
reduction in capacity commensurate with that achievable by use of a
closed-cycle cooling system; a velocity limitation of less than or
equal to 0.5 ft/sec; and location where intake capacity would be no
more 5% of the mean annual flow or 25% of the 7Q10 flow of a freshwater
stream or river, no more than 1% of the tidal excursion volume of a
tidal river or estuary, or where the intake capacity would not disrupt
the natural stratification and turnover patterns of a lake or
reservoir. EPA is also considering designating the following two
additional design and construction technologies as part of a fast-
track, BTA suite of technologies: a fine mesh traveling screen with a
fish return system, variable speed pumps and a low pressure spray; or a
submerged wedgewire fine mesh screen. (By contrast, industry's
suggested approach would be that in order to qualify for fast track
permitting, facilities would commit to either low velocity, closed-
cycle cooling or a once-through cooling system with an intake equipped
with one of a number of other technologies, e.g., wedge wire screens,
fine mesh traveling screens with a fish return system, or Gunderbooms,
based on a determination in the final rule that these other
technologies may be as effective as closed-cycle cooling with a
velocity limit of 0.5 ft/sec for purposes of reducing impingement and
entrainment for the species, type of waterbody, and flow volume of the
cooling water intake structure proposed for their use.)
Under the modification EPA is considering, the fast-track
technologies and performance standards would reflect levels that some
newer facilities have achieved. Based on data on existing facilities in
the record at proposal, EPA estimates that almost all new facilities
are likely to meet the proposed proportional flow standard for
freshwater rivers (total intake flow less than 5% of mean annual flow
or 25% of the low flow that occurs over a one-week period no more than
once every 10 years) and for estuaries and tidal rivers (total intake
flow no greater than one percent of the volume of the water column
within the area centered about the opening of the intake with a
diameter defined by the distance of one tidal excursion at the mean low
water level). As discussed at Section F.5 above, 16% of the
manufacturing, 31% of the nonutility and 44% of the utility facilities
constructed in the last 15 years meet all three of the proposed
requirements for: (1) Reducing intake capacity to a level commensurate
with use of a closed-cycle recirculating cooling system; (2) reducing
intake velocity to no more than 0.5 ft/sec; and (3) developing a plan
and installing additional design and construction technologies. (See
#2-035C in the Docket). Under this approach, EPA would define these
technologies as BTA for the fast-track option.
Other alternatives for fast-track technologies include:
Dry cooling, either at all locations or in certain
waterbodies determined to be particularly sensitive to impacts from
cooling water intake structures, or in certain regions in the country
where dry cooling is demonstrated, or at certain sizes of facilities
where dry cooling is particularly well-demonstrated;
Differing suites of ``fast-track'' technologies based on
the type of waterbody or the facility's location within a waterbody
(e.g., adding additional fast-track technologies in tidal rivers and
estuaries over those required in the parts of oceans, freshwater rivers
and streams, and lakes and reservoirs that may be designated as less
sensitive than other parts of these areas).
EPA also invites comment on other possible modifications to the
industry fast-track option:
EPA is considering a modification where limited pre-
operational monitoring would be required. Under this approach, the
planned facility would be required to monitor at the proposed site
during the time of year of highest egg and larval abundance, which
should correspond to the peak period for impingement and entrainment
vulnerability. To the extent that the proposed year-long timeframe for
pre-operational monitoring could result in significant delay in
building a new facility, this modification might reduce those delays
for some or many facilities. However, EPA recognizes that, depending on
construction schedules and how they relate to the time of year when
monitoring would be required this modification could limit the
usefulness of the fast track approach for some new facilities.
EPA is considering a modification where the permit would
contain some or all of the proposed operational monitoring requirements
at proposed 40 CFR 125.87, 65 FR 49121 or a reduced frequency of
operational monitoring requirements.
EPA is considering a modification where the permitting
authority (most often a State) would retain authority to revisit
section 316(b) requirements at permit renewal based on the facility's
impingement and entrainment monitoring data or other new information
(see proposed 40 CFR 125.84(f) and 40 CFR 125.84(g)).
EPA is considering a modification where the Director
(usually, a State official) could require pre-operational studies under
circumstances similar to those described in proposed 40 CFR 125.84(f),
65 FR 49119, and/or proposed 40 CFR 125.84(g), 65 FR 49119 or at the
Director's discretion. For example, the Director might require pre-
operational monitoring if he or she determines it is reasonably
necessary as a result of the effects of multiple cooling water intake
structures in the same body of water (40 CFR 125.84(f) or it is
reasonably
[[Page 28871]]
necessary to ensure attainment of water quality standards (40 CFR
125.84(g)).
EPA is also considering and invites comment on the following
modifications to the industry's Track 2 option:
EPA is considering a modification where, in all but
exceptional or unusual circumstances (e.g., where a State or Tribe has
designated a waterbody as having no use for supporting the propagation
or maintenance of aquatic life and EPA has approved the revised use). A
Track 2 facility would need to conduct a site-specific study that, at a
minimum, meets the proposed requirements for a one-year source water
baseline biological characterization at proposed 40 CFR 125.86 or,
alternatively, for oceans, tidal rivers and estuaries, a longer study
period might be required as discussed at Section G.4.
Under the industry approach, an intake structure would not
have to be assessed for entrainment if it withdraws an amount no
greater than a given percentage of the source waterbody. The industry
approach suggests a value of 5% or less of the 90% exceedance flow of a
river or 5% or less of the volume of the biological zone of influence
in a lake or reservoir, measured when entrainable life stages of
representative indicator species are present. EPA is analyzing these
proposed screening criteria at one location. As discussed in an EPA
Memorandum to the Record titled ``Utilities Proposal Re: Assessment for
Entrainment,'' April 19 2001 (see Docket #2-043 in the Docket), at one
location for which data are readily available, the threshold proposed
by industry for entrainment assessment in rivers would equal about 40%
of the maximum allowable intake flow that EPA proposed. EPA is
considering the industry approach and a modification where an applicant
would not have to assess potential entrainment impact if an intake
structure withdrew a proportion of waterbody flow or volume
significantly less than any final limitations for proportional flow,
such as those at proposed 40 CFR 125.84. (EPA proposed that a facility
withdraw no more than 5% of the mean annual flow or 25% of the 7Q10
flow of a freshwater river or stream. For tidal rivers and estuaries, a
facility could withdraw no more than 1% of the volume of the water
column within the area centered about the opening of the intake with a
diameter defined by the distance of one tidal excursion at the mean low
water level.) EPA invites comment on potential screening levels for
entrainment assessment. EPA is currently considering screening levels
between 1% and 50% of any final proportional flow limitations, but
invites comment on other levels as well. To address concerns that a
very large facility on a large waterbody might entrain a large number
of aquatic organisms, EPA also invites comment on a possible screening
level for entrainment assessment based on the total intake flow at a
facility. EPA is currently considering a range of 2 MGD (equivalent to
EPA's proposed regulatory threshold) to 15 or 25 MGD, but invites
comments on other levels. Section A above provides perspective on the
percentage of facilities and flows that would require entrainment
assessment at these thresholds. EPA has not yet analyzed industry's
suggested screening threshold for entrainment assessment in lakes and
reservoirs. The Agency invites comment on whether this is a reasonable
threshold, and on other potential screening thresholds for lakes and
reservoirs, or other waterbodies such as estuaries, tidal rivers and
oceans.
Under the industry approach, a proposed facility would not
be assessed for entrainment unless it exceeded both a flow-based
threshold and a population-based threshold (see previous bullet for
discussion of the flow-based threshold). The population-based threshold
would be designed to ensure that entrainment losses of equivalent
adults would be less than a value that, in industry's view, has
generally proven to be highly conservative or not inconsistent with
fishery management plans. Industry states that some interested parties
have suggested values equal to or less than 1% of the population of any
commercially or recreationally important species and equal to or less
than 5% of the population of non-harvested species. EPA requests
comment on a modification that would require that entrainment should be
assessed if it exceeds either a flow-based threshold, or a threshold
based on equivalent-adult losses. EPA is also considering a
modification that would require entrainment assessment above a
threshold as low as 1% or as high as 50% of those organisms that occupy
or pass-through the area from which source water moves into the intake.
Alternatively, EPA might use concepts from the 1977 Draft Guidance for
Evaluating the Adverse Impact of Cooling Water Intake Structures on the
Aquatic Environment to focus entrainment assessment on potential impact
on organisms in the ``primary study area,'' ``the secondary study
area,'' or the ``zone of potential involvement.'' (These are areas
where biota may be drawn into or affected by a cooling water intake
structure.) EPA requests comment on the use of any of these definitions
from its 1977 Guidance to define areas for which entrainment
assessments would be required. EPA is currently considering a range of
1% to 5% as a quantitative screening requirement in conjunction with
any of these definitions, but invites comment on percentages outside of
this range.
Under the industry approach, if a Track 2 site-specific
study showed an appreciable risk of adverse environmental impact, the
applicant would have to identify all reasonably available technologies
that would be feasible at the site. It would then perform the cost-
benefit analysis to determine which technology would ``maximize net
benefits.'' The industry approach does not define how to maximize net
benefits. However, industry comments suggest an approach that would
involve determining applicable fish protection alternatives, assessing
their incremental monetary costs and benefits to the extent feasible,
major uncertainties in the analysis, and whether relevant costs or
benefits have not been quantified. The applicant would then develop a
BTA choice that is likely to maximize net benefits in that particular
case. EPA invites comment on whether it would be appropriate to ensure
that such site-specific cost-benefit studies include assessment of the
following categories of data and ecological risks and benefits: numbers
of individuals of various species and age-classes impinged and
entrained for each technology alternative; commercial or recreational
fishing opportunities enhanced or foregone; and/or other categories of
benefits such as impact on other recreational opportunities (e.g.,
birding related to bird populations that are in part dependent on fish
populations). EPA also invites comment on whether such studies should
be based upon a single-year or multiple-year baseline. Finally, EPA is
considering other economic analyses that could support a Track 2
decision on appropriate technologies and/or performance standards. The
Agency invites comment on whether it should use the ``wholly
disproportionate'' cost-benefit test that has been previously used in
many case-by-case section 316(b) decisions or one of the economic
affordability tests described at proposal.
[[Page 28872]]
2. Documentation for the Assertion That Appropriately Applied Existing
Technologies Can Reduce Fish Losses to Levels Reasonably Consistent
With Wet Cooling Towers With Low-Velocity
UWAG asserts that, at certain sites and under certain conditions,
technologies such as wedge wire screens, fine mesh traveling screens
with a fish return system, and Gunderbooms can be used at intakes with
a capacity commensurate with once-through cooling and can reduce losses
from entrainment and impingement to levels reasonably consistent with
those of an intake structure with a capacity commensurate with use of a
wet, closed-cycle cooling system and an intake velocity of no more than
0.5 feet per second. In the document, ``Existing Technologies Which,
Appropriately Applied, Can Reduce Fish Losses to Levels Reasonably
Consistent with Wet Cooling Towers,'' April 18, 2001 (see #2-044A in
the Docket), UWAG provides data that it asserts supports this position.
UWAG also discusses this assertion in the document ``Reasonably
Consistent,'' April 20, 2001 (see #2-044B in the Docket). These data
and information are intended to support the alternative industry
approach discussed in section H.1. of this Notice. EPA is evaluating
the UWAG assertions and will consider any public comments on them.
3. Financial Issues That Necessitate Minimal or No Pre-Permit
Biological Study
As discussed in the document, ``Financial Ramifications of Pre-
operational Biological Monitoring Requirements'' (see #2-045 in
Docket), UWAG asserts that delays associated with EPA's proposed
requirements for pre-operational biological monitoring could have
significant costs for the facilities required to conduct such
monitoring. These costs would include the replacement value for
electricity not generated because new facilities did not enter the
market as quickly as they might have without the requirement. UWAG also
asserts that these delays will increase the costs of financing for a
new facility because the lender will be taking a greater risk over a
longer term for a facility that does not yet have a permit. EPA
solicits comment on specifically how much the cost of financing would
increase for a new facility based on such delay and uncertainty. UWAG
further asserts that the pre-operational biological monitoring
requirement will create an incentive to build plants that are not
subject to this requirement and its associated delays and produce more
expensive electricity. These data and information are intended to
support the alternative industry approach discussed in Section H.1. of
this Notice. EPA is evaluating and invites public comment on the UWAG
assertions. EPA is very interested in evaluating any impact these
regulations may have on new facility construction. EPA invites the
public to provide detailed information on the extent to which a year-
long, pre-operational biological monitoring program might lengthen the
timeframes for new facility development beyond those normally
associated with, for example, site selection, financing, construction,
local permitting, and environmental assessments conducted under other
federal, state or local requirements.
III. General Solicitation of Comment
EPA encourages public participation in this rulemaking and requests
comments on this notice of data availability supporting the proposed
rule for cooling water intake structures for new facilities.
EPA invites all parties to coordinate their data collection
activities with the Agency to facilitate mutually beneficial and cost-
effective data submissions. Please refer to the FOR FURTHER INFORMATION
section at the beginning of this preamble for technical contacts at
EPA.
To ensure that EPA can properly respond to comments, the Agency
prefers that commenters cite, where possible, the paragraph(s) or
sections in the document or supporting documents to which each comment
refers. Please submit an original and two copies of your comments and
enclosures (including references).
Dated: May 16, 2001.
Diane C. Regas,
Acting Assistant Administrator, Office of Water.
[FR Doc. 01-13187 Filed 5-24-01; 8:45 am]
BILLING CODE 6560-50-P