[Federal Register Volume 67, Number 68 (Tuesday, April 9, 2002)]
[Proposed Rules]
[Pages 17122-17225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5597]
[[Page 17121]]
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Part II
Environmental Protection Agency
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40 CFR Parts 9, et al.
National Pollutant Discharge Elimination System--Proposed Regulations
to Establish Requirements for Cooling Water Intake Structures at Phase
II Existing Facilities; Proposed Rule
Federal Register / Vol. 67, No. 68 / Tuesday, April 9, 2002 /
Proposed Rules
[[Page 17122]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 122, 123, 124, and 125
[FRL-7154-7]
RIN 2040-AD62
National Pollutant Discharge Elimination System--Proposed
Regulations to Establish Requirements for Cooling Water Intake
Structures at Phase II Existing Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Today's proposed rule would implement section 316(b) of the
Clean Water Act (CWA) for certain existing power producing facilities
that employ a cooling water intake structure and that withdraw 50
million gallons per day (MGD) or more of water from rivers, streams,
lakes, reservoirs, estuaries, oceans, or other waters of the U.S. for
cooling purposes. The proposed rule constitutes Phase II in EPA's
development of section 316(b) regulations and would establish national
requirements applicable to the location, design, construction, and
capacity of cooling water intake structures at these facilities. The
proposed national requirements, which would be implemented through
National Pollutant Discharge Elimination System (NPDES) permits, would
minimize the adverse environmental impact associated with the use of
these structures.
Today's proposed rule would establish location, design,
construction, and capacity requirements that reflect the best
technology available for minimizing adverse environmental impact from
the cooling water intake structure based on water body type, and the
amount of water withdrawn by a facility. The Environmental Protection
Agency (EPA) proposes to group surface water into five categories--
freshwater rivers and streams, lakes and reservoirs, Great Lakes,
estuaries and tidal rivers, and oceans--and establish requirements for
cooling water intake structures located in distinct water body types.
In general, the more sensitive or biologically productive the
waterbody, the more stringent the requirements proposed as reflecting
the best technology available for minimizing adverse environmental
impact. Proposed requirements also vary according to the percentage of
the source waterbody withdrawn, and facility utilization rate.
A facility may choose one of three options for meeting best
technology available requirements under this proposed rule. These
options include demonstrating that the facility subject to the proposed
rule currently meet specified performance standards; selecting and
implementing design and construction technologies, operational
measures, or restoration measures that meet specified performance
standards; or demonstrating that the facility qualifies for a site-
specific determination of best technology available because its costs
of compliance are either significantly greater than those considered by
the Agency during the development of this proposed rule, or the
facility's costs of compliance would be significantly greater than the
environmental benefits of compliance with the proposed performance
standards. The proposed rule also provides that facilities may use
restoration measures in addition to or in lieu of technology measures
to meet performance standards or in establishing best technology
available on a site-specific basis.
EPA expects that this proposed regulation would minimize adverse
environmental impact, including substantially reducing the harmful
effects of impingement and entrainment, at existing facilities over the
next 20 years. As a result, the Agency anticipates that this proposed
rule would help protect ecosystems in proximity to cooling water intake
structures. Today's proposal would help preserve aquatic organisms,
including threatened and endangered species, and the ecosystems they
inhabit in waters used by cooling water intake structures at existing
facilities. EPA has considered the potential benefits of the proposed
rule and in the preamble discusses these benefits in both quantitative
and non-quantitative terms. Benefits, among other factors, are based on
a decrease in expected mortality or injury to aquatic organisms that
would otherwise be subject to entrainment into cooling water systems or
impingement against screens or other devices at the entrance of cooling
water intake structures. Benefits may also accrue at population,
community, or ecosystem levels of ecological structures.
DATES: Comments on this proposed rule and Information Collection
Request (ICR) must be received or postmarked on or before midnight July
8, 2002.
ADDRESSES: Public comments regarding this proposed rule should be
submitted by mail to: Cooling Water Intake Structure (Existing
Facilities: Phase II) Proposed Rule Comment Clerk--W-00-32, Water
Docket, Mail Code 4101, EPA, Ariel Rios Building,1200 Pennsylvania
Avenue, NW., Washington, DC 20460. Comments delivered in person
(including overnight mail) should be submitted to the Cooling Water
Intake Structure (Existing Facilities: Phase II) Proposed Rule Comment
Clerk--W-00-32, Water Docket, Room EB 57, 401 M Street, SW.,
Washington, DC 20460. You also may 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?''
EPA has prepared an Information Collection Request (ICR) under the
Paperwork Reduction Act for this proposed rule (EPA ICR number
2060.01). For further information or a copy of the ICR contact Susan
Auby by phone at (202) 260-4901, e-mail at [email protected]
or download off the internet at http://www.epa.gov/icr. Send comments
on the Agency's need for this information, the accuracy of the burden
estimates, and any suggested methods for minimizing respondent burden
(including the use of automated collection techniques) to the following
addresses. Please refer to EPA ICR Number 2060.01 in any
correspondence.
Ms. Susan Auby, U.S. Environmental Protection Agency, OP Regulatory
Information Division (2137), 401 M Street, SW., Washington, DC 20460.
and
Office of Information and Regulatory Affairs, Office of Management and
Budget, Attention: Desk Officer for EPA 725 17th Street, NW,
Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: For additional technical information
contact Deborah G. Nagle at (202) 566-1063. For additional economic
information contact Lynne Tudor, Ph.D. at (202) 566-1043. For
additional biological information contact Dana A. Thomas, Ph.D. at
(202) 566-1046. The e-mail address for the above contacts is
``[email protected].''
SUPPLEMENTARY INFORMATION:
What Entities Are Potentially Regulated by This Action?
This proposed rule would apply to ``Phase II existing facilities,''
i.e., existing facilities that both generate and transmit electric
power or that generate electric power for sale to another entity for
transmission; use one or more cooling water intake structures to
withdraw water from waters of the U.S.;
[[Page 17123]]
have or require a National Pollutant Discharge Elimination System
(NPDES) permit issued under section 402 of the CWA; and meet proposed
flow thresholds. \1\ Existing electric power generating facilities
subject to this proposal would include those that use cooling water
intake structures to withdraw fifty (50) million gallons per day (MGD)
or more and that use at least twenty-five (25) percent of water
withdrawn solely for cooling purposes. If a facility that otherwise
would be subject to the proposed rule does not meet the fifty (50) MGD
design intake flow or twenty-five (25) percent cooling water threshold,
the permit authority would implement section 316(b) on a case-by-case
basis, using best professional judgment. EPA intends to address such
facilities in a future rulemaking effort. This proposal defines the
term ``cooling water intake structure'' to mean the total physical
structure and any associated constructed waterways used to withdraw
water from waters of the U.S. The cooling water intake structure
extends from the point at which water is withdrawn from the surface
water source up to, and including, the intake pumps. The category of
facilities that would meet the proposed cooling water intake structure
criteria for existing facilities are electric power generation
utilities and nonutility power producers.
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\1\ Proposed Sec. 125.93 defines ``existing facility'' as any
facility that commenced construction before January 17, 2002 and
certain modifications and additions to such facilities.
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The following exhibit lists the types of entities that EPA is now
aware potentially could be subject to this proposed rule. This exhibit
is not intended to be exhaustive, but rather provides a guide for
readers regarding entities likely to be regulated by this action. Types
of entities not listed in the exhibit could also be regulated. To
determine whether your facility would be regulated by this action, you
should carefully examine the applicability criteria proposed at
Sec. 125.91 of the proposed rule. If you have questions regarding the
applicability of this action to a particular entity, consult one of the
persons listed for technical information in the preceding FOR FURTHER
INFORMATION CONTACT section.
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North American
Examples of regulated Standard Industrial Industry
Category entitles Classification (SIC) Classification System
codes (NAICS) codes
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Federal, State, and Local Operators of steam electric 4911 and 493.......... 221112, 221113,
Government. generating point source 221119, 221121,
dischargers that employ 221122.
cooling water intake
structures.
Industry........................... Steam electric generating 4911 and 493.......... 221112, 221113,
(this includes utilities 221119, 221121,
and nonutilities). 221122.
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Supporting Documentation
The proposed Phase II regulation is supported by three major
documents:
1. Economic and Benefits Analysis for the Proposed Section 316(b)
Phase II Existing Facilities Rule (EPA-821-R-02-001), hereafter
referred to as the EBA. This document presents the analysis of
compliance costs, closures, energy supply effects and benefits
associated with the proposed rule.
2. Case Study Analysis for the Proposed Section 316(b) Phase II
Existing Facilities Rule (EPA-821-R-02-002), hereafter referred to as
the Case Study Document. This document presents the information
gathered from the watershed and facility level case studies and
methodology used to determine baseline impingement and entrainment
losses.
3. Technical Development Document for the Proposed Section 316(b)
Phase II Existing Facilities Rule (EPA-821-R-02-003), hereafter
referred to as the Technical Development Document. This document
presents detailed information on the methods used to develop unit costs
and describes the set of technologies that may be used to meet the
proposed rule's requirements.
How May I Review the Public Record?
The record (including supporting documentation) for this proposed
rule is filed under docket number W-00-32 (Phase II Existing Facility
proposed rule). The record is available for inspection from 9 a.m. to 4
p.m. on Monday through Friday, excluding legal holidays, at the Water
Docket, Room EB 57, USEPA Headquarters, 401 M Street, SW, Washington,
DC 20460. For access to docket materials, please call (202) 260-3027 to
schedule an appointment during the hours of operation stated above.
How May I Submit Comments?
To ensure that EPA can read, understand, and therefore properly
respond to comments, the Agency requests that you cite, where possible,
the paragraph(s) or sections in the preamble, rule, or supporting
documents to which each comment refers. You should use a separate
paragraph for each issue you discuss.
If you want EPA to acknowledge receipt of your comments, enclose a
self-addressed, stamped envelope. No faxes will be accepted. Electronic
comments must be submitted as a WordPerfect 5.1, 6.1, 8, or 9 format,
or an ASCII file or file avoiding the use of special characters and
forms of encryption. Electronic comments must be identified by the
docket number W-00-32. EPA will accept comments and data on disks in
WordPerfect 5.1, 6.1, 8 or 9 format or in ASCII file format. Electronic
comments on this notice may be filed on-line at many Federal depository
libraries.
Organization of This Document
I. Legal Authority, Purpose of Today's Proposal, and Background
A. Legal Authority
B. Purpose of Today's Proposal
C. Background
II. Scope and Applicability of the Proposed Rule
A. What Is an ``Existing Facility'' for Purposes of the Section
316(b) Proposed Phase II Rule?
B. What Is a ``Cooling Water Intake Structure''?
C. Is My Facility Covered If It Withdraws From Waters of the
U.S.?
D. Is My Facility Covered If It Is a Point Source Discharger
Subject to an NPDES Permit?
E. Who Is Covered Under the Thresholds Included in This Proposed
Rule?
F. When Must a Phase II Existing Facility Comply With the
Proposed Requirements?
G. What Special Definitions Apply to This Proposal
III. Summary of Data Collection Activities
A. Existing Data Sources
B. Survey Questionnaires
C. Site Visits
D. Data Provided to EPA by Industrial, Trade, Consulting,
Scientific or Environmental Organizations or by the General Public
[[Page 17124]]
IV. Overview of Facility Characteristics (Cooling Water Systems &
Intakes) for Industries Potentially Subject to Proposed Rule
V. Environmental Impacts Associated With Cooling Water Intake
Structures
VI. Best Technology Available for Minimizing Adverse Environmental
Impact at Phase II Existing Facilities
A. What Is the Best Technology Available for Minimizing Adverse
Environmental Impact at Phase II Existing Facilities?
B. Other Technology Based Options Under Consideration
C. Site-Specific Based Options Under Consideration
D. Why EPA Is Not Considering Dry Cooling Anywhere?
E. What is the Role of Restoration and Trading?
VII. Implementation
A. When Does the Proposed Rule Become Effective?
B. What Information Must I Submit to the Director When I Apply
for My Reissued NPDES Permit?
C. How Would the Director Determine the Appropriate Cooling
Water Intake Structure Requirements?
D. What Would I Be Required To Monitor?
E. How Would Compliance Be Determined?
F. What Are the Respective Federal, State, and Tribal Roles?
G. Are Permits for Existing Facilities Subject to Requirements
Under Other Federal Statutes?
H. Alternative Site-Specific Requirements
VIII. Economic Analysis
A. Proposed Rule
B. Alternative Regulatory Options
IX. Benefit Analysis
A. Overview of Benefits Discussion
B. The Physical Impacts of Impingement and Entrainment
C. Impingement and Entrainment Impacts and Regulatory Benefits
Are Site-Specific
D. Data and Methods Used to Estimate Benefits
E. Summary of Benefits Findings: Case Studies
F. Estimates of National Benefits
X. Administrative Requirements
A. E.O. 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Unfunded Mandates Reform Act
D. Regulatory Flexibility Act as Amended by SBREFA (1996)
E. E.O. 12898: Federal Actions to Address Environmental Justice
in Minority Populations and Low-Income Populations
F. E.O. 13045: Protection of Children From Environmental Health
Risks and Safety Risks
G. E.O. 13175: Consultation and Coordination With Indian Tribal
Governments
H. E.O. 13158: Marine Protected Areas
I. E.O. 13211: Energy Effects
J. National Technology Transfer and Advancement Act
K. Plain Language Directive
I. Legal Authority, Purpose of Today's Proposal, and Background
A. Legal Authority
Today's proposed rule is issued under the authority of sections
101, 301, 304, 306, 308, 316, 401, 402, 501, and 510 of the Clean Water
Act (CWA), 33 U.S.C. 1251, 1311, 1314, 1316, 1318, 1326, 1341, 1342,
1361, and 1370. This proposal partially fulfills the obligations of the
U.S. Environmental Protection Agency (EPA) under a consent decree in
Riverkeeper Inc., et al. v. Whitman, United States District Court,
Southern District of New York, No. 93 Civ. 0314 (AGS).
B. Purpose of Today's Proposal
Section 316(b) of the CWA provides that any standard established
pursuant to section 301 or 306 of the CWA and applicable to a point
source must require that the location, design, construction, and
capacity of cooling water intake structures reflect the best technology
available (BTA) for minimizing adverse environmental impact. Today's
proposed rule would establish requirements, reflecting the best
technology available for minimizing adverse environmental impact,
applicable to the location, design, construction, and capacity of
cooling water intake structures at Phase II existing power generating
facilities that withdraw at least fifty (50) MGD of cooling water from
waters of the U.S. Today's proposal would define a cooling water intake
structure as the total physical structure, including the pumps, and any
associated constructed waterways used to withdraw water from waters of
the U.S. Cooling water absorbs waste heat rejected from processes
employed or from auxiliary operations on a facility's premises. Single
cooling water intake structures might have multiple intake bays. In
1977 EPA issued draft guidance for determining the best technology
available to minimize adverse environmental impact from cooling water
intake structures. In the absence of section 316(b) regulations or
final guidance, the 1977 draft guidance has served as applicable
guidance for section 316(b) determinations. See Draft Guidance for
Evaluating the Adverse Impact of Cooling Water Intake Structures on the
Aquatic Environment: Section 316(b) Pub. L. 92-500 (U.S. EPA, 1977).
Administrative determinations in several permit proceedings also have
served as de facto guidance.
Today, EPA proposes a national framework that would establish
certain minimum requirements for the location, design, capacity, and
construction of cooling water intake structures for large cooling water
intake structures at Phase II existing facilities. In doing so, the
Agency is proposing to revise the approach adopted in the 1977 draft
guidance which was based on the judgment that ``[t]he decision as to
best technology available for intake design location, construction, and
capacity must be made on a case-by-case basis.'' Other important
differences from the 1977 draft guidance include today's proposed
definition of a ``cooling water intake structure.'' Today's proposal
also would establish a cost-benefit test that is different from the
``wholly disproportionate'' cost-benefit test that has been in use
since the 1970s.
Although EPA's judgment is that the requirements proposed today
would best implement section 316(b) at Phase II existing facilities,
the Agency is also inviting comment on a broad array of other
alternatives, including, for example, more stringent technology-based
requirements and a framework under which Directors would continue to
evaluate adverse environmental impact and determine the best technology
available for minimizing such impact on a wholly site-specific basis.
Because the Agency is inviting comment on a broad range of alternatives
for potential promulgation, today's proposal is not intended as
guidance for determining the best technology available to minimize the
adverse environmental impact of cooling water intake structures at
potentially regulated Phase II existing facilities. Until the Agency
promulgates final regulations based on today's proposal, Directors
should continue to make section 316(b) determinations with respect to
existing facilities, which may be more or less stringent than today's
proposal, on a case-by-case basis applying best professional judgment.
Today's proposal would not apply to existing manufacturing
facilities or to power generating facilities that withdraw less than
fifty (50) MGD of cooling water. These facilities will be addressed in
a separate rulemaking, referred to as the Phase III rule (see section
I.C.2., below). In the interim, these facilities are subject to section
316(b) requirements established by permitting authorities on a case-by-
case basis, using best professional judgment. Upon promulgation of
final regulations based on today's proposal, the Agency will address
the extent to which the final regulations and preamble should serve as
guidance for developing section 316(b) requirements for Phase III
facilities prior to the promulgation of the Phase III regulations.
[[Page 17125]]
EPA and State permitting authorities should use existing guidance
and information to form their best professional judgment in issuing
permits to existing facilities. EPA's draft Guidance for Evaluating the
Adverse Impact of Cooling Water Intake Structures on the Aquatic
Environment: Section 316(b) (May 1, 1977), continues to be applicable
for existing facilities pending EPA's issuance of final regulations
under section 316(b). Two background papers that EPA prepared in 1994
and 1996 to describe cooling water intake technologies being used or
tested for minimizing adverse environmental impact also contain
information that could be useful to permit writers. (Preliminary
Regulatory Development, Section 316(b) of the Clean Water Act,
Background Paper Number 3: Cooling Water Intake Technologies (1994) and
Draft Supplement to Background Paper Number 3: Cooling Water Intake
Technologies.) Fact sheets from recent 316(b) State and Regional
permits are another source of potentially relevant information. The
evaluations of the costs and efficacies of technologies presented in
the Technical Development Document for the Final Regulations Addressing
Cooling Water Intake Structures for New Facilities, EPA-821-R-01-036,
November 2001 may also be relevant on some cases, although costs for
some technologies will differ between new and existing facilities. EPA
and State decision-makers retain the discretion to adopt approaches on
a case-by-case basis that differ from applicable guidance where
appropriate. Any decisions on a particular facility should be based on
the requirements of section 316(b).
C. Background
1. The Clean Water Act
The Federal Water Pollution Control Act, also known as the Clean
Water Act (CWA), 33 U.S.C. 1251 et seq., seeks to ``restore and
maintain the chemical, physical, and biological integrity of the
nation's waters.'' 33 U.S.C. 1251(a). The CWA establishes a
comprehensive regulatory program, key elements of which are (1) a
prohibition on the discharge of pollutants from point sources to waters
of the U.S., except as authorized by the statute; (2) authority for EPA
or authorized States or Tribes to issue National Pollutant Discharge
Elimination System (NPDES) permits that regulate the discharge of
pollutants; and (3) requirements for EPA to develop effluent
limitations guidelines and standards and for States to develop water
quality standards that are the basis for the limitations required in
NPDES permits.
Today's proposed rule would implement section 316(b) of the CWA as
it applies to ``Phase II existing facilities'' as defined in this
proposal. Section 316(b) addresses the adverse environmental impact
caused by the intake of cooling water, not discharges into water.
Despite this special focus, the requirements of section 316(b) are
closely linked to several of the core elements of the NPDES permit
program established under section 402 of the CWA to control discharges
of pollutants into navigable waters. For example, section 316(b)
applies to facilities that withdraw water from the waters of the United
States for cooling through a cooling water intake structure and are
point sources subject to an NPDES permit. Conditions implementing
section 316(b) are included in NPDES permits and would continue to be
included in such permits under this proposed rule.
Section 301 of the CWA prohibits the discharge of any pollutant by
any person, except in compliance with specified statutory requirements.
These requirements include compliance with technology-based effluent
limitations guidelines and new source performance standards, water
quality standards, NPDES permit requirements, and certain other
requirements.
Section 402 of the CWA provides authority for EPA or an authorized
State or Tribe to issue an NPDES permit to any person discharging any
pollutant or combination of pollutants from a point source into waters
of the U.S. Forty-four States and one U.S. territory are authorized
under section 402(b) to administer the NPDES permitting program. NPDES
permits restrict the types and amounts of pollutants, including heat,
that may be discharged from various industrial, commercial, and other
sources of wastewater. These permits control the discharge of
pollutants primarily by requiring dischargers to meet effluent
limitations and other permit conditions. Effluent limitations may be
based on promulgated federal effluent limitations guidelines, new
source performance standards, or the best professional judgment of the
permit writer. Limitations based on these guidelines, standards, or
best professional judgment are known as technology-based effluent
limits. Where technology-based effluent limits are inadequate to ensure
compliance with water quality standards applicable to the receiving
water, more stringent effluent limits based on applicable water quality
standards are required. NPDES permits also routinely include monitoring
and reporting requirements, standard conditions, and special
conditions.
Sections 301, 304, and 306 of the CWA require that EPA develop
technology-based effluent limitations guidelines and new source
performance standards that are used as the basis for technology-based
minimum discharge requirements in wastewater discharge permits. EPA
issues these effluent limitations guidelines and standards for
categories of industrial dischargers based on the pollutants of concern
discharged by the industry, the degree of control that can be attained
using various levels of pollution control technology, consideration of
various economic tests appropriate to each level of control, and other
factors identified in sections 304 and 306 of the CWA (such as non-
water quality environmental impacts including energy impacts). EPA has
promulgated regulations setting effluent limitations guidelines and
standards under sections 301, 304, and 306 of the CWA for more than 50
industries. See 40 CFR parts 405 through 471. Among these, EPA has
established effluent limitations guidelines that apply to most of the
industry categories that use cooling water intake structures (e.g.,
steam electric power generation, iron and steel manufacturing, pulp and
paper manufacturing, petroleum refining, chemical manufacturing).
Section 306 of the CWA requires that EPA establish discharge
standards for new sources. For purposes of section 306, new sources
include any source that commenced construction after the promulgation
of applicable new source performance standards, or after proposal of
applicable standards of performance if the standards are promulgated in
accordance with section 306 within 120 days of proposal. CWA section
306; 40 CFR 122.2. New source performance standards are similar to the
technology-based limitations established for Phase II existing sources,
except that new source performance standards are based on the best
available demonstrated technology instead of the best available
technology economically achievable. New facilities have the opportunity
to install the best and most efficient production processes and
wastewater treatment technologies. Therefore, Congress directed EPA to
consider the best demonstrated process changes, in-plant controls, and
end-of-process control and treatment technologies that reduce pollution
to the maximum extent feasible. In addition, in establishing new source
performance standards, EPA is required to take into consideration the
cost of achieving the effluent reduction
[[Page 17126]]
and any non-water quality environmental impacts and energy
requirements.
2. Consent Decree
Today's proposed rule partially fulfills EPA's obligation to comply
with an Amended Consent Decree. The Amended Consent Decree was filed on
November 22, 2000, in the United States District Court, Southern
District of New York, in Riverkeeper Inc., et al. v. Whitman, No. 93
Civ 0314 (AGS), a case brought against EPA by a coalition of
individuals and environmental groups. The original Consent Decree,
filed on October 10, 1995, provided that EPA was to propose regulations
implementing section 316(b) by July 2, 1999, and take final action with
respect to those regulations by August 13, 2001. Under subsequent
interim orders and the Amended Consent Decree, EPA has divided the
rulemaking into three phases and is working under new deadlines. As
required by the Amended Consent Decree, on November 9, 2001, EPA took
final action on a rule governing cooling water intake structures used
by new facilities (Phase I). 66 FR 65255 (December 18, 2001). The
Amended Consent Decree also requires that EPA issue this proposal by
February 28, 2002, and take final action by August 28, 2003 (Phase
II).\2\ The decree requires further that EPA propose regulations
governing cooling water intake structures used, at a minimum, by
smaller-flow power plants and factories in four industrial sectors
(pulp and paper making, petroleum and coal products manufacturing,
chemical and allied manufacturing, and primary metal manufacturing) by
June 15, 2003, and take final action by December 15, 2004 (Phase III).
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\2\ Under the Amended Consent Decree, EPA is to propose
reuglations in Phase II that are ``applicable to, at a minimum: (i)
Existing utilities (i.e., facilities that both generate and transmit
electric power) that employ a cooling water intake structure, and
whose intake flow levels exceed a minimum threshold to be determined
by EPA during the Phase II rulemaking process; and (ii) existing
non-utility power producers (i.e., facilities that generate electric
power but sell it to another entity for transmission) that employa
cooling water intake structure, and whose intakeflow levels exceed a
minimum threshold to be determined by EPA during the Phase II
rulemaking process.''
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3. What Other EPA Rulemakings and Guidance Have Addressed Cooling Water
Intake Structures?
In April 1976 EPA published a rule under section 316(b) that
addressed cooling water intake structures. 41 FR 17387 (April 26,
1976), proposed at 38 FR 34410 (December 13, 1973). The rule added a
new Sec. 401.14 to 40 CFR Chapter I that reiterated the requirements of
CWA section 316(b). It also added a new part 402, which included three
sections: (1) Sec. 402.10 (Applicability), (2) Sec. 402.11 (Specialized
definitions), and (3) Sec. 402.12 (Best technology available for
cooling water intake structures). Section 402.10 stated that the
provisions of part 402 applied to ``cooling water intake structures for
point sources for which effluent limitations are established pursuant
to section 301 or standards of performance are established pursuant to
section 306 of the Act.'' Section 402.11 defined the terms ``cooling
water intake structure,'' ``location,'' ``design,'' ``construction,''
``capacity,'' and ``Development Document.'' Section 402.12 included the
following language:
The information contained in the Development Document shall be
considered in determining whether the location, design,
construction, and capacity of a cooling water intake structure of a
point source subject to standards established under section 301 or
306 reflect the best technology available for minimizing adverse
environmental impact.
In 1977, fifty-eight electric utility companies challenged these
regulations, arguing that EPA had failed to comply with the
requirements of the Administrative Procedure Act (APA) in promulgating
the rule. Specifically, the utilities argued that EPA had neither
published the Development Document in the Federal Register nor properly
incorporated the document into the rule by reference. The United States
Court of Appeals for the Fourth Circuit agreed and, without reaching
the merits of the regulations themselves, remanded the rule.
Appalachian Power Co. v. Train, 566 F.2d 451 (4th Cir. 1977). EPA later
withdrew part 402. 44 FR 32956 (June 7, 1979). 40 CFR 401.14 remains in
effect.
Since the Fourth Circuit remanded EPA's section 316(b) regulations
in 1977, NPDES permit authorities have made decisions implementing
section 316(b) on a case-by-case, site-specific basis. EPA published
draft guidance addressing section 316(b) implementation in 1977. See
Draft Guidance for Evaluating the Adverse Impact of Cooling Water
Intake Structures on the Aquatic Environment: Section 316(b) P.L. 92-
500 (U.S. EPA, 1977). This draft guidance describes the studies
recommended for evaluating the impact of cooling water intake
structures on the aquatic environment and recommends a basis for
determining the best technology available for minimizing adverse
environmental impact. The 1977 section 316(b) draft guidance states,
``The environmental-intake interactions in question are highly site-
specific and the decision as to best technology available for intake
design, location, construction, and capacity must be made on a case-by-
case basis.'' (Section 316(b) Draft Guidance, U.S. EPA, 1977, p. 4).
This case-by-case approach also is consistent with the approach
described in the 1976 Development Document referenced in the remanded
regulation.
The 1977 section 316(b) draft guidance suggests a general process
for developing information needed to support section 316(b) decisions
and presenting that information to the permitting authority. The
process involves the development of a site-specific study of the
environmental effects associated with each facility that uses one or
more cooling water intake structures, as well as consideration of that
study by the permitting authority in determining whether the facility
must make any changes for minimizing adverse environmental impact.
Where adverse environmental impact is present, the 1977 draft guidance
suggests a stepwise approach that considers screening systems, size,
location, capacity, and other factors.
Although the draft guidance describes the information that should
be developed, key factors that should be considered, and a process for
supporting section 316(b) determinations, it does not establish uniform
technology-based national standards for best technology available for
minimizing adverse environmental impact. Rather, the guidance leaves
the decisions on the appropriate location, design, capacity, and
construction of cooling water intake structures to the permitting
authority. Under this framework, the Director determines whether
appropriate studies have been performed and whether a given facility
has minimized adverse environmental impact.
4. New Facility Rule
On November 9, 2001, EPA took final action on regulations governing
cooling water intake structures at new facilities. 66 FR 65255
(December 18, 2001). The final new facility rule (Phase I) established
requirements applicable to the location, design, construction, and
capacity of cooling water intake structures at new facilities that
withdraw at least two (2) million gallons per day (MGD) and use at
least twenty-five (25) percent of the water they withdraw solely for
cooling purposes. EPA adopted a two-track approach. Under Track I, for
facilities with a design intake flow more than 10 MGD, the capacity of
the cooling water intake structure is restricted, at a minimum, to a
level commensurate with that which could be attained by use of a
closed-cycle recirculating system. For facilities
[[Page 17127]]
with a design intake flow more than 2 MGD, the design through-screen
intake velocity is restricted to 0.5 ft/s and the total quantity of
intake is restricted to a proportion of the mean annual flow of a
freshwater river or stream, or to maintain the natural thermal
stratification or turnover patterns (where present) of a lake or
reservoir except in cases where the disruption is determined to be
beneficial to the management of fisheries for fish and shellfish by any
fishery management agency(ies), or to a percentage of the tidal
excursions of a tidal river or estuary. In addition, an applicant with
intake capacity greater than 10 MGD must select and implement an
appropriate design and construction technology for minimizing
impingement mortality and entrainment if certain environmental
conditions exist. (Applicants with 2-10 MGD flows are not required to
reduce capacity but must install technologies for reducing entrainment
at all locations.) Under Track II, the applicant has the opportunity to
demonstrate that impacts to fish and shellfish, including important
forage and predator species, within the watershed will be comparable to
these which it would achieve were it to implement the Track I
requirements for capacity and design velocity. This demonstration can
include the use of restoration measures such as habitat enhancement or
fish restocking programs. Proportional flow requirements also apply
under Track II.
With the new facility rule, EPA promulgated a national framework
that establishes minimum requirements for the design, capacity, and
construction of cooling water intake structures for new facilities. EPA
believes that the final new facility rule establishes a reasonable
framework that creates certainty for permitting of new facilities,
while providing some flexibility to take site-specific factors into
account.
5. Public Participation
EPA has worked extensively with stakeholders from the industry,
public interest groups, state agencies, and other federal agencies in
the development of this proposed rule. These public participation
activities have focused on various section 316(b) issues, including
general issues, as well as issues relevant to development of the Phase
I rule and issues relevant to the proposed Phase II rule.
In addition to outreach to industry groups, environmental groups,
and other government entities in the development, testing, refinement,
and completion of the 316(b) survey,\3\ which has been used as a source
of data for the Phase II proposal, EPA conducted two public meetings on
316(b) issues. In June 1998, in Arlington, Virginia (63 FR 27958) EPA
conducted a public meeting focused on a draft regulatory framework for
assessing potential adverse environmental impacts from impingement and
entrainment. In September, 1998, in Alexandria, Virginia (63 FR 40683)
EPA conducted a public meeting focused on technology, cost, and
mitigation issues. In addition, in September 1998 and April 1999, EPA
staff participated in technical workshops sponsored by the Electric
Power Research Institute on issues relating to the definition and
assessment of adverse environmental impact. EPA staff have participated
in other industry conferences, met upon request on numerous occasions
with industry representatives, and met on a number of occasions with
representatives of environmental groups.
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\3\ U.S. EPA, Information Collection Request, Detailed Industry
Questionnaires: Phase II Cooling Water Intake Structures & Watershed
Case Study Short Questionnaires, Section 3, 1999.
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In the months leading up to publication of the proposed Phase I
rule, EPA conducted a series of stakeholder meetings to review the
draft regulatory framework for the proposed rule and invited
stakeholders to provide their recommendations for the Agency's
consideration. EPA managers have met with the Utility Water Act Group,
Edison Electric Institute, representatives from an individual utility,
and with representatives from the petroleum refining, pulp and paper,
and iron and steel industries. EPA conducted several meetings with
environmental groups attended by representatives from 15 organizations.
EPA also met with the Association of State and Interstate Water
Pollution Control Administrators (ASIWPCA) and, with the assistance of
ASIWPCA, conducted a conference call in which representatives from 17
states or interstate organizations participated. After publication of
the proposed Phase I rule, EPA continued to meet with stakeholders at
their request. These meetings are summarized in the record.
EPA received many comments from industry stakeholders, government
agencies and private citizens on the Phase I proposed rule 65 FR 49059
(August 10, 2000). EPA received additional comments on the Notice of
Data Availability (NODA) 66 FR 28853 (May 25, 2001). These comments
have informed the development of the Phase II proposal.
In January, 2001, EPA also attended technical workshops organized
by the Electric Power Research Institute and the Utilities Water Act
Group. These workshops focused on the presentation of key issues
associated with different regulatory approaches considered under the
Phase I proposed rule and alternatives for addressing 316(b)
requirements.
On May 23, 2001, EPA held a day-long forum to discuss specific
issues associated with the development of regulations under section
316(b) of the Clean Water Act. 66 FR 20658. At the meeting, 17 experts
from industry, public interest groups, States, and academia reviewed
and discussed the Agency's preliminary data on cooling water intake
structure technologies that are in place at existing facilities and the
costs associated with the use of available technologies for reducing
impingement and entrainment. Over 120 people attended the meeting.
In August 21, 2001, EPA staff participated in a technical symposium
sponsored by the Electric Power Research Institute in association with
the American Fisheries Society on issues relating to the definition and
assessment of adverse environmental impact under section 316(b) of the
CWA.
Finally, EPA has coordinated with the staff from the Nuclear
Regulatory Commission (NRC) in the development of this proposed rule to
ensure that the proposal does not conflict with NRC safety
requirements. NRC staff have reviewed the proposed 316(b) rule and did
not identify any apparent conflict with nuclear plant safety. NRC
licensees would continue to be obligated to meet NRC requirements for
design and reliable operation of cooling systems. NRC staff recommended
that EPA consider adding language which states that in cases of
conflict between an EPA requirement under this proposed rule and an NRC
safety requirement, the NRC safety requirement take precedence. EPA has
added language to address this concern to the proposed rule. These
coordination efforts and all of the meetings described above are
documented or summarized in the record.
II. Scope and Applicability of the Proposed Rule
This proposed rule would apply to existing facilities as defined
below, that use a cooling water intake structure to withdraw water for
cooling purposes from waters of the U.S. and that have or are required
to have a National Pollutant Discharge Elimination System (NPDES)
permit issued under section 402 of the
[[Page 17128]]
CWA. Specifically, the rule applies to you if you are the owner or
operator of an existing facility that meets all of the following
criteria:
Your facility both generates and transmits electric power
or generates electric power but sells it to another entity for
transmission;
Your facility is a point source and uses or proposes to
use a cooling water intake structure or structures, or your facility
obtains cooling water by any sort of contract or arrangement with an
independent supplier who has a cooling water intake structure;
Your facility's cooling water intake structure(s)
withdraw(s) cooling water from waters of the U.S. and at least twenty-
five (25) percent of the water withdrawn is used solely for contact or
non-contact cooling purposes;
Your facility has an NPDES permit or is required to obtain
one; and
Your facility has a design intake flow of 50 million
gallons per day (MGD) or greater;
In the case of a cogeneration facility that shares a
cooling water intake structure with another facility, only that portion
of the cooling water flow that is used in the cogeneration process
shall be considered when determining whether the 50 MGD and 25 percent
criteria are met.
Facilities subject to the proposed rule are referred to as ``Phase II
existing facilities.'' Existing facilities with design flows below the
50 MGD threshold, as well as certain existing manufacturing facilities,
and offshore and coastal oil and gas extraction facilities, would not
be subject to this proposed rule, but will be addressed in Phase III.
If an existing facility that would otherwise be a Phase II existing
facility has or requires an NPDES permit but does not meet the twenty-
five percent cooling water use threshold, it would not be subject to
permit conditions based on today's proposed rule; rather, it would be
subject to permit conditions implementing section 316(b) of the CWA set
by the permit director on a case-by-case basis, using best professional
judgment.
A. What Is an ``Existing Facility'' for Purposes of the Section 316(b)
Proposed Phase II Rule?
EPA is proposing to define the term ``existing facility'' as any
facility that commenced construction before January 17, 2002 and (1)
any modification of such a facility; (2) any addition of a unit at such
a facility for purposes of the same industrial operation; (3) any
addition of a unit at such a facility for purposes of a different
industrial operation, if the additional unit uses an existing cooling
water intake structure and the design capacity of intake structure is
not increased; or (4) any facility constructed in place of such a
facility if the newly constructed facility uses an existing cooling
water intake structure whose design intake flow is not increased to
accommodate the intake of additional cooling water.
The term commence construction is defined in 40 CFR 122.29(b)(4)
and January 17, 2002 is the effective date of the new facility rule.
EPA has specified that any modification of a facility that commenced
construction before January 17, 2002 remains an existing facility for
purposes of this rule to clarify that significant changes to such a
facility would not, absent other conditions, cause the facility to be a
``new facility'' subject to the Phase I rule. In addition, the proposed
definition specifies that any addition of a unit at a facility that
commenced construction before January 17, 2002 for purposes of the same
industrial operation as the existing facility would continue to be
defined as an existing facility. Further, any addition of a unit at a
facility that commenced construction before January 17, 2002 for
purposes of a different industrial operation would remain an existing
facility provided the additional unit uses an existing cooling water
intake structure and the design capacity of intake structure is not
increased. Finally, under the proposed definition, any facility
constructed in place of a facility that commenced construction before
January 17, 2002, would remain defined as an existing facility if the
newly constructed facility uses an existing cooling water intake
structure whose design intake flow is not increased to accommodate the
intake of additional cooling water.
Under this proposed rule certain forms of repowering could be
undertaken by an existing power generating facility that uses a cooling
water intake structure and it would remain subject to regulation as a
Phase II existing facility. For example, the following scenarios would
be existing facilities under the proposed rule:
An existing power generating facility undergoes a
modification of its process short of total replacement of the process
and concurrently increases the design capacity of its existing cooling
water intake structures;
An existing power generating facility builds a new process
for purposes of the same industrial operation and concurrently
increases the design capacity of its existing cooling water intake
structures;
An existing power generating facility completely rebuilds
its process but uses the existing cooling water intake structure with
no increase in design capacity.
Thus, in most situations, repowering an existing power generating
facility would be addressed under this proposed rule.
The proposed definition of ``existing facility'' is sufficiently
broad that it covers facilities that will be addressed under the Phase
III rule (e.g., existing power generating facilities with design flows
below the 50 MGD threshold, certain existing manufacturing facilities,
and offshore and coastal oil and gas extraction facilities). These
facilities are not covered under this proposal because they do not meet
the requirements of proposed Sec. 125.91.
B. What Is a ``Cooling Water Intake Structure?''
Today's proposal would adopt for Phase II existing facilities the
same definition of a ``cooling water intake structure'' that is part of
the new facility rule, i.e., 40 CFR 125.83, the total physical
structure and any associated constructed waterways used to withdraw
cooling water from waters of the U.S. The cooling water intake
structure extends from the point at which water is withdrawn from the
surface water source up to, and including, the intake pumps. Today's
proposal also would adopt the new facility rule's definition of
``cooling water,'' i.e., water used for contact or noncontact cooling,
including water used for equipment cooling, evaporative cooling tower
makeup, and dilution of effluent heat content. The definition specifies
that the intended use of cooling water is to absorb waste heat from
production processes or auxiliary operations. The definition also
specifies that water used for both cooling and non-cooling purposes
would not be considered cooling water for purposes of determining
whether 25% or more of the flow is cooling water.
This definition differs from the definition of ``cooling water
intake structure'' that is included in the 1977 Draft Guidance. The
proposed definition clarifies that the cooling water intake structure
includes the physical structure and technologies that extend up to and
include the intake pumps. Inclusion of the term ``associated
constructed waterways'' is intended to clarify that the definition
includes those canals, channels, connecting waterways, and similar
structures that may be built or modified to facilitate the withdrawal
of cooling water. The explicit inclusion of the intake pumps in the
definition reflects the key role pumps play in determining the capacity
(i.e., dynamic capacity) of the intake. These pumps,
[[Page 17129]]
which bring in water, are an essential component of the cooling water
intake structure since without them the intake could not work as
designed.
In addition, the definition would apply to structures that bring
water in for both contact and noncontact cooling purposes. This
clarification is necessary because cooling water intake structures
typically bring water into a facility for numerous purposes, including
industrial processes; use as circulating water, service water, or
evaporative cooling tower makeup water; dilution of effluent heat
content; equipment cooling; and air conditioning.
Finally, at Sec. 125.91(b), consistent with the new facility rule,
this proposed rule provides that use of a cooling water intake
structure includes obtaining cooling water by any sort of contract or
arrangement with an independent supplier (or multiple suppliers) of
cooling water if the supplier or suppliers withdraw(s) water from
waters of the United States. This provision is intended to prevent
circumvention of these requirements by creating arrangements to receive
cooling water from an entity that is not itself a point source. It also
provides that use of cooling water does not include obtaining cooling
water from a public water system or the use of treated effluent that
otherwise would be discharged to a water of the U.S.
C. Is My Facility Covered If It Withdraws From Waters of the U.S.?
The requirements proposed today would apply to cooling water intake
structures that withdraw amounts of water greater than the proposed
flow threshold from ``waters of the U.S.'' Waters of the U.S. include
the broad range of surface waters that meet the regulatory definition
at 40 CFR 122.2, which includes lakes, ponds, reservoirs, nontidal
rivers or streams, tidal rivers, estuaries, fjords, oceans, bays, and
coves. These potential sources of cooling water may be adversely
affected by impingement and entrainment.
Some facilities discharge heated water to cooling ponds, then
withdraw water from the ponds for cooling purposes. EPA does not intend
this proposal to change the regulatory status of cooling ponds. Cooling
ponds are neither categorically included nor categorically excluded
from the definition of ``waters of the United States'' at 40 CFR 122.2.
EPA interprets 40 CFR 122.2 to give permit writers discretion to
regulate cooling ponds as ``waters of the United States'' where cooling
ponds meet the definition of ``waters of the United States.'' The
determination whether a particular cooling pond is or is not ``waters
of the United States'' is to be made by the permit writer on a case-by-
case basis, informed by the principles enunciated in Solid Waste Agency
of Northern Cook County v. US Army Corps of Engineers, 531 U.S. 159
(2001). Therefore, facilities that withdraw cooling water from cooling
ponds that are ``waters of the U.S.'' and that meet today's other
proposed criteria for coverage (including the requirement that the
facility have or be required to obtain an NPDES permit) would be
subject to today's proposed rule.
D. Is My Facility Covered If It Is a Point Source Discharger Subject to
an NPDES Permit?
Today's proposed rule would apply only to facilities that have an
NPDES permit or are required to obtain one because they discharge or
might discharge pollutants, including storm water, from a point source
to waters of the U.S. This is the same requirement EPA included in the
new facility rule. 40 CFR 125.81(a)(1). Requirements for minimizing the
adverse environmental impact of cooling water intake structures would
continue to be applied through NPDES permits.
Based on the Agency's review of potential Phase II existing
facilities that employ cooling water intake structures, the Agency
anticipates that most existing power generating facilities that would
be subject to this rule will control the intake structure that supplies
them with cooling water, and discharge some combination of their
cooling water, wastewater, and storm water to a water of the U.S.
through a point source regulated by an NPDES permit. In this scenario,
the requirements for the cooling water intake structure would be
specified in the facility's NPDES permit. In the event that a Phase II
existing facility's only NPDES permit is a general permit for storm
water discharges, the Agency anticipates that the Director would write
an individual NPDES permit containing requirements for the facility's
cooling water intake structure. The Agency invites comment on this
approach for applying cooling water intake structure requirements to
the facility. Alternatively, requirements applicable to cooling water
intake structures could be incorporated into general permits. The
Agency also invites comment on this approach.
The Agency also recognizes that some facilities that have or are
required to have an NPDES permit might not directly control the intake
structure that supplies their facility with cooling water. For example,
facilities operated by separate entities might be located on the same,
adjacent, or nearby property; one of these facilities might take in
cooling water and then transfer it to other facilities prior to
discharge of the cooling water to a water of the U.S. Proposed
Sec. 125.91(c) addresses such a situation. It provides that use of a
cooling water intake structure includes obtaining cooling water by any
sort of contract or arrangement with an independent supplier (or
multiple suppliers) of cooling water if the supplier or suppliers
withdraw(s) water from waters of the United States. This provision is
intended to prevent circumvention of the proposed requirements by
creating arrangements to receive cooling water from an entity that is
not itself a point source discharger. It is the same as in the final
new facility rule. 40 CFR 125.81(b).
Proposed Sec. 125.91(c) also provides, as in the new facility rule,
that facilities that obtain cooling water from a public water system or
use treated effluent that otherwise would be discharged to a water of
the U.S. would not be subject to this proposed rule.
In addition, as EPA stated in the preamble to the final new
facility rule, the Agency would encourage the Director to closely
examine scenarios in which a potential Phase II existing facility
withdraws significant amounts of cooling water but does not have an
NPDES permit. As appropriate, the Director should apply other legal
requirements, such as section 404 or 401 of the Clean Water Act, the
Coastal Zone Management Act, the National Environmental Policy Act, or
similar State authorities to address adverse environmental impact
caused by cooling water intake structures at those existing facilities.
E. Who Is Covered Under the Thresholds Included in This Proposed Rule?
This proposed rule applies to facilities that (1) withdraw cooling
water from water of the U.S. and use at least twenty-five (25) percent
of the water withdrawn for cooling purposes and (2) have at least one
cooling water intake structure with a design intake capacity of 50 MGD
or more. Proposed Sec. 125.91.
EPA is proposing to include a provision, like that specified in the
new facility rule, that facilities that use less than twenty-five (25)
percent of the water withdrawn for cooling purposes are not subject to
this rule. This threshold ensures that nearly all cooling water and the
most significant facilities using cooling water intake structures are
addressed by these requirements to minimize adverse environmental
impact (see 66 FR 65338). Phase II existing
[[Page 17130]]
facilities typically use far more than 25 percent of the water they
withdraw for cooling. As in the new facility rule, water used for both
cooling and non-cooling purposes would not count towards the 25 percent
threshold.
In addition, at Sec. 125.91, EPA is proposing that this rule would
apply to facilities that have a cooling water intake structure with a
design intake capacity of 50 million gallons per day (MGD) or greater
of source water. EPA chose the 50 MGD threshold to focus the proposed
rule on the largest existing power generating facilities. Existing
power generating facilities with design flows below this threshold, as
well as certain existing manufacturing facilities, and offshore and
coastal oil and gas extraction facilities, would not be subject to this
proposed rule but will be addressed under the Phase III rule. To
clarify that manufacturing and commercial facilities are not subject to
the Phase II rule as a result of their relationship as a host plant to
a cogeneration facility, only that portion of the cooling water intake
flow that is used in the cogeneration process would be considered in
determining whether the 50 MGD and 25 percent criteria are met. EPA
estimates that the 50 MGD threshold would subject approximately 539 of
942 (57 percent) of existing power generating facilities to the
proposal and would address 99.04 percent of the total flow withdrawn by
existing steam electric power generating facilities.\4\ EPA believes
the regulation of existing facilities with flows of 50 MGD or greater
in Phase II will address those existing power generating facilities
with the greatest potential to cause or contribute to adverse
environmental impact. In addition, EPA has limited data on impacts at
facilities withdrawing less than 50 MGD. Deferring regulation of such
facilities to Phase III provides additional opportunity for the Agency
to collect impingement and entrainment data for these smaller
facilities. EPA requests comment on both the 50 MGD and 25 percent
cooling water thresholds.
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\4\ Source: Initial SBREFA Analysis, 6/01.
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F. When Must a Phase II Existing Facility Comply With the Proposed
Requirements?
If your facility is subject to the rule, proposed Sec. 125.92 would
require that you must comply when an NPDES permit containing
requirements consistent with this subpart is issued to you.
G. What Special Definitions Apply to This Proposal?
Definitions specific to this proposal are set forth in proposed
Sec. 125.93. Except for the definitions of ``cooling water'' and
``existing facility,'' which are separately defined for Phase II
facilities in proposed Sec. 125.93, the definitions in the new facility
rule, 40 CFR 125.83, also apply to this proposed rule. The definitions
in the new facility rule that would apply to Phase II existing
facilities are as follows:
Annual mean flow means the average of daily flows over a calendar
year. Historical data (up to 10 years) must be used where available.
Closed-cycle recirculating system means a system designed, using
minimized makeup and blowdown flows, to withdraw water from a natural
or other water source to support contact and/or noncontact cooling uses
within a facility. The water is usually sent to a cooling canal or
channel, lake, pond, or tower to allow waste heat to be dissipated to
the atmosphere and then is returned to the system. (Some facilities
divert the waste heat to other process operations.) New source water
(make-up water) is added to the system to replenish losses that have
occurred due to blowdown, drift, and evaporation.
Cooling water intake structure means the total physical structure
and any associated constructed waterways used to withdraw cooling water
from waters of the U.S. The cooling water intake structure extends from
the point at which water is withdrawn from the surface water source up
to, and including, the intake pumps.
Design intake flow means the value assigned (during the facility's
design) to the total volume of water withdrawn from a source waterbody
over a specific time period.
Design intake velocity means the value assigned (during the design
of a cooling water intake structure) to the average speed at which
intake water passes through the open area of the intake screen (or
other device) against which organisms might be impinged or through
which they might be entrained.
Entrainment means the incorporation of all life stages of fish and
shellfish with intake water flow entering and passing through a cooling
water intake structure and into a cooling water system.
Estuary means a semi-enclosed body of water that has a free
connection with open seas 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) but is typically less
than 30 parts per thousand (by mass).
Freshwater river or stream means a lotic (free-flowing) system that
does not receive significant inflows of water from oceans or bays due
to tidal action. For the purposes of this rule, a flow-through
reservoir with a retention time of 7 days or less will be considered a
freshwater river or stream.
Hydraulic zone of influence means that portion of the source
waterbody hydraulically affected by the cooling water intake structure
withdrawal of water.
Impingement means the entrapment of all life stages of fish and
shellfish on the outer part of an intake structure or against a
screening device during periods of intake water withdrawal.
Lake or reservoir means any inland body of open water with some
minimum surface area free of rooted vegetation and with an average
hydraulic retention time of more than 7 days. Lakes or reservoirs might
be natural water bodies or impounded streams, usually fresh, surrounded
by land or by land and a man-made retainer (e.g., a dam). Lakes or
reservoirs might be fed by rivers, streams, springs, and/or local
precipitation. Flow-through reservoirs with an average hydraulic
retention time of 7 days or less should be considered a freshwater
river or stream.
Maximize means to increase to the greatest amount, extent, or
degree reasonably possible.
Minimum ambient source water surface elevation means the elevation
of the 7Q10 flow for freshwater streams or rivers; the conservation
pool level for lakes or reservoirs; or the mean low tidal water level
for estuaries or oceans. The 7Q10 flow is the lowest average 7
consecutive day low flow with an average frequency of one in 10 years
determined hydrologically. The conservation pool is the minimum depth
of water needed in a reservoir to ensure proper performance of the
system relying upon the reservoir. The mean low tidal water level is
the average height of the low water over at least 19 years.
Minimize means to reduce to the smallest amount, extent, or degree
reasonably possible.
Natural thermal stratification means the naturally-occurring
division of a waterbody into horizontal layers of differing densities
as a result of variations in temperature at different depths.
New facility means any building, structure, facility, or
installation that meets the definition of a ``new source'' or ``new
discharger'' in 40 CFR 122.2
[[Page 17131]]
and 122.29(b)(1), (2), and (4) and is a greenfield or stand-alone
facility; commences construction after January 17, 2002; and uses
either a newly constructed cooling water intake structure, or an
existing cooling water intake structure whose design capacity is
increased to accommodate the intake of additional cooling water. New
facilities include only ``greenfield'' and ``stand-alone'' facilities.
A greenfield facility is a facility that is constructed at a site at
which no other source is located, or that totally replaces the process
or production equipment at an existing facility (see 40 CFR
122.29(b)(1)(i) and (ii)). A stand-alone facility is a new, separate
facility that is constructed on property where an existing facility is
located and whose processes are substantially independent of the
existing facility at the same site (see 40 CFR 122.29(b)(1)(iii)). New
facility does not include new units that are added to a facility for
purposes of the same general industrial operation (for example, a new
peaking unit at an electrical generating station).
(1) Examples of ``new facilities'' include, but are not limited to
the following scenarios: (i) A new facility is constructed on a site
that has never been used for industrial or commercial activity. It has
a new cooling water intake structure for its own use. (ii) A facility
is demolished and another facility is constructed in its place. The
newly-constructed facility uses the original facility's cooling water
intake structure, but modifies it to increase the design capacity to
accommodate the intake of additional cooling water. (iii) A facility is
constructed on the same property as an existing facility, but is a
separate and independent industrial operation. The cooling water intake
structure used by the original facility is modified by constructing a
new intake bay for the use of the newly constructed facility or is
otherwise modified to increase the intake capacity for the new
facility.
(2) Examples of facilities that would NOT be considered a ``new
facility'' include, but are not limited to, the following scenarios:
(i) A facility in commercial or industrial operation is modified and
either continues to use its original cooling water intake structure or
uses a new or modified cooling water intake structure. (ii) A facility
has an existing intake structure. Another facility (a separate and
independent industrial operation), is constructed on the same property
and connects to the facility's cooling water intake structure behind
the intake pumps, and the design capacity of the cooling water intake
structure has not been increased. This facility would not be considered
a ``new facility'' even if routine maintenance or repairs that do not
increase the design capacity were performed on the intake structure.
Ocean means marine open coastal waters with a salinity greater than
or equal to 30 parts per thousand (by mass).
Source water means the waterbody (waters of the U.S.) from which
the cooling water is withdrawn.
Thermocline means the middle layer of a thermally stratified lake
or reservoir. In this layer, there is a rapid decrease in temperatures.
Tidal excursion means the horizontal distance along the estuary or
tidal river that a particle moves during one tidal cycle of ebb and
flow.
Tidal river means the most seaward reach of a river or stream where
the salinity is typically less than or equal to 0.5 parts per thousand
(by mass) at a time of annual low flow and whose surface elevation
responds to the effects of coastal lunar tides.
III Summary of Data Collection Activities
EPA focused its data collection activities on traditional utilities
and nonutility power producers. Based on the 1982 Census of
Manufacturers, these industries account for more than 90 percent of
cooling water use in the United States. Traditional utilities and
nonutility power producers that use cooling water were further limited
to those plants that generate electricity by means of steam as the
thermodynamic medium (steam electric) because they are associated with
large cooling water needs. Other power producers generate electricity
by means other than steam (e.g., gas turbines) and typically require
only small amounts of cooling water, if any.
Facilities in the traditional steam electric utility category are
classified under Standard Industrial Classification (SIC) codes 4911
and 493, while nonutility power producers are classified under the
major code that corresponds to the primary purpose of the facility.
Nonutility facilities are classified under SIC codes 4911 and 493 if
the primary purpose of the facility is to generate electricity, and it
is these nonutility facilities that are potentially subject to this
rule.
A. Existing Data Sources
EPA collected data from multiple sources, both public and
proprietary, in order to compile an accurate profile of the potentially
regulated community. EPA reviewed information collected by other
Federal agencies, as well as data compiled by private companies. In
those instances where databases are considered confidential, or where
raw data was unavailable for review, EPA did not consider the
information. Summaries of the reviewed data sources are listed below.
1. Traditional Steam Electric Utilities
Federal Energy Regulatory Commission Data Sources. The Federal
Energy Regulatory Commission (FERC) is an independent agency that
oversees America's natural gas industry, electric utilities, nonfederal
hydroelectric projects, and oil pipeline transportation system. FERC
requires that utilities, companies, or individuals subject to its
regulations periodically file data or information relating to such
matters as financial operations, energy production or supply, and
compliance with applicable regulations. Following are brief
descriptions of the relevant FERC data collection forms associated with
traditional steam electric utilities:
FERC Form 1, the Annual Report for Major Electric
Utilities, Licensees and Others, collects extensive accounting,
financial, and operating data from major privately-owned electric
utilities. A privately-owned electric utility is considered ``major''
if its sales and transmission services, in each of the three previous
calendar years, exceeded one of the following: (1) One million megawatt
hours of total annual sales; (2) 100 megawatt hours of annual sales for
resale; (3) 500 megawatt hours of annual power exchanges delivered; or
(4) 500 megawatt hours of annual wheeling for others. Utility-level
information (e.g., number of employees, detailed revenue and expense
information, balance sheet information, and electricity generation
information) and plant-level information (e.g., production expenses,
balance sheet information, and electricity generation information) was
used in the economic analysis of the proposed regulation. EPA used FERC
Form 1 data as compiled and distributed by other organizations than
FERC (see below). (Note that FERC Form 1 applies only to privately-
owned utilities. Publicly-owned utilities and rural electric
cooperatives are discussed below.)
FERC Form 1-F, the Annual Report of Nonmajor Public
Utilities and Licensees, collects accounting, financial, and operating
data from nonmajor privately-owned electric utilities. A privately-
owned electric utility is considered ``nonmajor'' if it had total
annual sales of 10,000 megawatt hours or more in the previous calendar
year but is not classified as ``major'' under the FERC Form 1
definition. FERC Form
[[Page 17132]]
1-F collects utility- and plant-level data similar to that on FERC Form
1, albeit less detailed.
Energy Information Administration Data Sources. The Energy
Information Administration (EIA) is an independent statistical and
analytical agency within the U.S. Department of Energy (DOE). In
support of its analytic activities, the EIA administers a series of
data collection efforts including extensive surveys of electric
utilities' financial operations, and their production and disposition
of electricity. Following are brief descriptions of the EIA data
collection forms associated with traditional steam electric utilities
that EPA has used as data sources:
Form EIA-412, the Annual Report of Public Electric
Utilities, collects accounting, financial, and operating data from
publicly-owned electric utilities. The information collected in Form
EIA-412 is similar to, but less detailed than data collected from major
privately-owned electric utilities in FERC Form 1. EPA use of Form EIA-
412 data included both utility-level information (e.g., number of
employees, detailed revenue and expense information, balance sheet
information, and electricity generation information) and plant-level
information (e.g., production expenses, balance sheet information, and
electricity generation information).
Form EIA-767, the Steam-Electric Plant Operation and
Design Report, collects data on air and water quality from steam-
electric power plants with generating capacity of 100 megawatts or
greater. A subset of these data are provided for steam-electric power
plants with generating capacity between 10 and 100 megawatts. EPA use
of Form EIA-767 data included unit-level information on net electricity
generation, hours in operation, and the quantity of fuel burned.
Form EIA-860, the Annual Electric Generator Report, collects data
on the status of electric generating plants and associated equipment in
operation and those scheduled to be in operation within the next 10
years of filing the report. Each utility that operates or plans to
operate a power plant in the United States is required to file Form
EIA-860. EPA use of Form EIA-860 data included unit-level information
on operating status, nameplate capacity, and ownership percentage.
Form EIA-861, the Annual Electric Utility Report, collects data on
generation, wholesale purchases, and sales and revenue by class of
consumer and State. Respondents include each electric utility that is
engaged in the generation, transmission, distribution, or sale of
electric energy primarily for use by the public. Data used from Form
EIA-861 included sales and revenue by consumer class, the utility's
NERC region, and address information. In addition, EPA used data on
utility ownership to classify each utility as either a privately-owned
utility, a publicly-owned utility, or a rural electric cooperative.
In addition to data from the EIA data collection forms outlined
above, EPA used EIA's database of FERC Form 1 data, containing the
majority of utility-level financial and operating data submitted on the
FERC Form 1. While these data are directly available from FERC, the EIA
database is published in an electronic format that is more convenient
to use than the FERC data. Because EIA conducts basic quality assurance
activities, EPA expects that the EIA data is more reliable than the
FERC data.
Rural Utility Service Data Sources. The Rural Utility Service (RUS)
is a Federal agency that provides rural infrastructure assistance in
electricity, water and telecommunications. As a Federal credit agency
in the U.S. Department of Agriculture, RUS plays a leadership role in
financial lending and technical guidance for the rural utilities
industries. Rural utilities that borrow from RUS are subject to annual
reporting requirements administered by RUS. Following are brief
descriptions of the relevant RUS data collection forms associated with
traditional steam electric utilities:
RUS Form 12, the Electric Operating Report, collects
accounting, financial, and operating data from rural electric
cooperatives \7\. The information collected in RUS Form 12 is similar
to data collected from major privately-owned electric utilities in FERC
Form 1. EPA use of RUS Form 12 data included utility-level information
(e.g., number of employees, detailed revenue and expense information,
balance sheet information, and electricity generation information),
plant-level information (e.g., production expenses, balance sheet
information, and electricity generation information), as well as unit-
level information (e.g., fuel consumption, operating hours, and
electricity generation).
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\7\ Note that this data collection form only applies to rural
electric cooperatives. Corresponding data collection forms for
privately-owned and publicly-owned utilities are discussed in other
parts of this section.
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U.S. Nuclear Regulatory Commission Data Sources. The U.S. Nuclear
Regulatory Commission (NRC) is an independent agency established to
ensure the protection of the public health and safety, the common
defense and security, and the environment in the use of nuclear
materials in the United States. In carrying out its responsibilities of
regulating commercial nuclear power reactors, the NRC compiles and
publishes data and reports regarding the operation and maintenance of
commercial nuclear power plants around the country. EPA collected
information from the NRC regarding the configuration of cooling water
intake structures to assist in estimating the capacities of condenser
flows.
Opri Data Sources. Opri is a private firm located in Boulder,
Colorado, that has compiled extensive databases related to the
traditional steam electric utility industry. Opri's Electric Generating
Plant Database includes plant-level data for privately-owned utilities,
publicly-owned utilities, and cooperatives for 1988-1997. While these
data are available from FERC, EIA, and RUS, these agencies do not make
the information available in an easily accessible electronic format. As
a consequence, EPA purchased plant-level data from Opri to support its
economic analyses. Because the compilation of data in the Electric
Generating Plant Database is proprietary, EPA has included a summary of
the data utilized in its analyses in the public record.
2. Steam Electric Nonutility Power Producers
Energy Information Administration Data Sources. Form EIA-867, the
Annual Nonutility Power Producer Report, collects data on electricity
generation, installed capacity, and energy consumption from nonutility
power producers that own or plan on installing electric generation
equipment with a total capacity of one megawatt or more. The form does
not collect any economic or financial data. EPA did not utilize
company-level data from the Form EIA-867 because the confidential
nature of this data prevented EIA from releasing it. EPA did use Form
EIA-867 to assess the population of potentially affected facilities and
to identify survey recipients.
Utility Data Institute Data Sources. The UDI Directory of U.S.
Cogeneration, Small Power, and Industrial Power Plants contains data
for more than 4,300 nonutility power producer plants. The database,
however, is not exclusive to facilities that have steam electric
generators. The database also contains nonutility power producers with
turbines that do not use cooling water such as gas turbines, geothermal
units, wind and solar installations, and a
[[Page 17133]]
variety of other plant types. The primary focus of the UDI nonutility
database is on facilities that provide at least some electricity for
sale to utilities. EPA used the UDI database to compare the names and
addresses of steam electric plants with those in the Form EIA-867
database to ensure comprehensive coverage of nonutility power
producers.
Edison Electric Institute Data Sources. EEI conducts an annual
survey and presents statistics on nonutility power producers in a
document entitled, Capacity and Generation of Nonutility Sources of
Energy. However, the data are considered confidential and EEI will only
disseminate data in an aggregated form. Because EPA must have the raw
data on a facility-specific basis for this rulemaking, EPA was unable
to use this database.
3. Repowering of Steam Electric Power Generating Facilities (Utility
and Nonutility)
As discussed in part B of this Section, the section 316(b) Survey
acquired technological and economic information from facilities for the
years 1998 and 1999. With this information, the Agency established a
subset of facilities potentially subject to this rule. Since 1999, some
existing facilities have proposed and/or enacted changes to their
facilities in the form of repowering that could potentially affect the
applicability of today's proposal or a facility's compliance costs. The
Agency therefore conducted research into repowering facilities for the
section 316(b) existing facility rule and any information available on
proposed changes to their cooling water intake structures. The Agency
defines repowering as existing facilities either undertaking
replacement of existing generating capacity or making additions to
existing capacity. The Agency used two separate databases to assemble
available information for the repowering facilities: RDI's NEWGen
Database, November 2001 version and the Section 316(b) Survey.
In January 2000, EPA conducted a survey of the technological and
economic characteristics of 961 steam-electric generating plants. Only
the detailed questionnaire, filled out by 283 utility plants and 50
nonutility plants, contains information on planned changes to the
facilities' cooling systems (Part 2, Section E). Of the respondents to
the detailed questionnaire, only six facilities (three utility plants
and three nonutility plants) indicated that their future plans would
lead to changes in the operation of their cooling water intake
structures.
The NEWGen database is a compilation of detailed information on new
electric generating capacity proposed over the next several years. The
database differentiates between proposed capacity at new (greenfield)
facilities and additions/modifications to existing facilities. To
identify repowering facilities of interest, the Agency screened the
1,530 facilities in the NEWGen database with respect to the following
criteria: Facility status, country, and steam electric additions. The
Agency then identified 124 NEWGen facilities as potential repowering
facilities.
Because the NEWGen database provides more information on repowering
than the section 316(b) survey, the Agency used it as the starting
point for the analysis of repowering facilities. Of the 124 NEWGen
facilities identified as repowering facilities, 85 responded to the
section 316(b) survey. Of these 85 facilities, 65 are in-scope and 20
are out of scope of this proposal. For each of the 65 in scope
facilities, the NEWGen database provided an estimation of the type and
extent of the capacity additions. The Agency found that 36 of the 65
facilities would be combined-cycle facilities after the repowering
changes. Of these, 34 facilities are projected to decrease their
cooling water intake after repowering (through the conversion from a
simple steam cycle to a combined-cycle plant). The other 31 facilities
within the scope of the rule would increase their cooling water intake.
The Agency examined the characteristics of these facilities projected
to undergo repowering and determined the waterbody type from which they
withdraw cooling water. The results of this analysis are presented in
Exhibit 1.
Exhibit 1.--In-Scope Existing Facilities Projected to Enact Repowering
Changes
------------------------------------------------------------------------
Number of
Number of plants
plants projected
projected to
Waterbody type to decrease or
increase maintain
cooling cooling
water water
withdrawal withdrawal
------------------------------------------------------------------------
Ocean......................................... N/A N/A
Estuary/Tidal River........................... 3 17
Freshwater River/Stream....................... 14 10
Freshwater Lake/Reservoir..................... 10 1
Great Lake.................................... 0 1
------------------------------------------------------------------------
Of the 65 in-scope facilities identified as repowering facilities
in the NEWGen database, 24 received the detailed questionnaire, which
requested information about planned cooling water intake structures and
changes to capacity. Nineteen of these 24 facilities are utilities and
the remaining five are nonutilities. The Agency analyzed the section
316(b) detailed questionnaire data for these 24 facilities to identify
facilities that indicated planned modifications to their cooling
systems which will change the capacity of intake water collected for
the plant and the estimated cost to comply with today's proposal. Four
such facilities were identified, two utilities and two nonutilities.
Both utilities responded that the planned modifications will decrease
their cooling water intake capacity and that they do not have any
planned cooling water intake structures that will directly withdraw
cooling water from surface water. The two nonutilities, on the other
hand, indicated that the planned modifications will increase their
cooling water intake capacity and that they do have planned cooling
water intake structures that will directly withdraw cooling water from
surface water.
Using the NEWGen and section 316(b) detailed questionnaire
information on repowering facilities, the Agency examined the extent to
which planned and/or enacted repowering changes would effect cooling
water withdrawals and, therefore, the potential costs of compliance
with this proposal. Because the Agency developed a cost estimating
methodology that primarily utilizes design intake flow as the
independent variable, the Agency examined the extent to which
compliance costs would change if the repowering data summarized above
were incorporated into the cost analysis of this rule. The Agency
determined that projected compliance costs for facilities withdrawing
from estuaries could be lower after incorporating the repowering
changes. The primary reason for this is the fact that the majority of
estuary repowering facilities would change from a full-steam cycle to a
combined-cycle, thereby maintaining or decreasing their cooling water
withdrawals (note that a combined-cycle facility generally will
withdraw one-third of the cooling water of a comparably sized full-
steam facility). Therefore, the portion of compliance costs for
regulatory options that included flow reduction requirements or
technologies would significantly decrease if the Agency incorporated
repowering changes into the analysis. As shown in Exhibit 1 the
[[Page 17134]]
majority of facilities projected to increase cooling water withdrawals
due to the repowering changes use freshwater sources. In turn, the
compliance costs for these facilities would increase if the Agency
incorporated repowering for this proposal.
For the final rule, the Agency intends to continue its research
into repowering at existing facilities. The Agency will consider the
results of its repowering research and any comments provided on this
subject for the final rule. The Agency therefore requests comment on
planned and enacted repowering activities and the above summary of its
repowering research to date. The Agency is especially interested in
information from facilities that have enacted repowering changes and
the degree to which these changes have changed their design intake
flow.
B. Survey Questionnaires
EPA's industry survey effort consists of a two-phase process. EPA
administered a screener questionnaire focused on nonutility and
manufacturing facilities as the first phase of this data collection
process. The screener questionnaire provides information on cooling-
water intake capacity, sources of the water, intake structure types,
and technologies used to minimize adverse environmental impacts. It
also provides data on facility and parent-firm employee numbers and
revenues. This information was used to design a sampling plan for the
subsequent detailed questionnaire. Following the screener survey, the
Agency sent out and collected either a short technical or a detailed
questionnaire to utility, nonutility, and manufacturing facilities, as
described below. The two-phase survey was designed to collect
representative data from a sample group of those categories of
facilities potentially subject to section 316(b) regulation for use in
rule development.
In 1997, EPA estimated that over 400,000 facilities could
potentially be subject to a cooling water intake regulation. Given the
large number of facilities potentially subject to regulation, EPA
decided to focus its data collection efforts on six industrial
categories that, as a whole, are estimated to account for over 99
percent of all cooling water withdrawals. These six sectors are:
Utility Steam Electric, Nonutility Steam Electric, Chemicals & Allied
Products, Primary Metals Industries, Petroleum & Coal Products, and
Paper & Allied Products. There are about 48,500 facilities in these six
categories. EPA believes that this approach provides a sound basis for
assessing best technologies available for minimizing adverse
environmental impacts.
The screener survey focused on nonutility and manufacturing
facilities. EPA developed the sample frame (list of facilities) for the
screener questionnaire using public data sources as described in the
Information Collection Request (DCN 3-3084-R2 in Docket W-00-03).
Facilities chosen for the screener questionnaire represented a
statistical sample of the entire universe of nonutility and
manufacturing facilities potentially subject to cooling water intake
regulations. EPA did not conduct a census of all facilities (i.e. send
a survey to all facilities) for the screener questionnaire because of
the burden associated with surveying a large number of facilities.
Rather, EPA refined the industry data using industry-specific sources
to develop sample frames and mailing lists. EPA believes the sample
frame was sufficient to characterize the operations of each industrial
category. EPA sent the screener questionnaire to 2600 facilities
identified in the sample frame as follows: (1) All identified steam
electric nonutility power producers, both industrial self-generators
and nonindustrial generators (1050 facilities, of which 853 responded);
(2) and a sample of manufacturers that fell under four other industrial
categories: Paper and allied products, chemical and allied products,
petroleum and coal products, and primary metals (1550 facilities, of
which 1217 responded). EPA adjusted the sample frame for the screener
questionnaire to account for several categories of non-respondents,
including facilities with incorrect address information, facilities no
longer in operation, and duplicate mailings. Through follow-up phone
calls and mailings, EPA increased the response rate for the screener
questionnaire to 95 percent. The screener questionnaire was not sent to
utilities, all of which were believed to be identified accurately using
the publically-available data described above.
A sample of manufacturing and nonutility facilities identified as
in-scope (subject to regulation) with the screener questionnaire, and
all utilities then were sent either a short technical or a detailed
questionnaire. A total of 878 utility facilities, 343 nonutility
facilities and 191 manufacturing facilities received one of the two
questionnaires (short technical or detailed) during the second phase of
the survey. For utilities, nonutilities, and other manufacturing
facilities, EPA selected a random sample of these eligible facilities
to receive a detailed questionnaire. The sample included 282 utility
facilities and 181 nonutility facilities. All 191 manufacturing
facilities received a detailed questionnaire. For nonutilities and
utilities, those facilities not selected to receive a detailed
questionnaire were sent a Short Technical Questionnaire. EPA's approach
in selecting a sample involved the identification of population strata,
the calculation of sample sizes based on desired levels of precision,
and the random selection of sites given the sample size calculations
within each stratum. More detail is provided in a report, Statistical
Summary for Cooling Water Intakes Structures Surveys (See DCN 3-3077 in
Docket W-00-03).
Five questionnaires were distributed to different industrial
groups. They were: (1) Detailed Industry Questionnaire: Phase II
Cooling Water Intake Structures--Traditional Steam Electric Utilities,
(2) Short Technical Industry Questionnaire: Phase II Cooling Water
Intake Structures--Traditional Steam Electric Utilities, (3) Detailed
Industry Questionnaire: Phase II Cooling Water Intake Structures--Steam
Electric Nonutility Power Producers, (4) Detailed Industry
Questionnaire: Phase II Cooling Water Intake Structures--Manufacturers,
(5) Watershed Case Study Short Questionnaire.
The questionnaires provided EPA with technical and financial data
necessary for developing this proposed regulation. Specific details
about the questions may be found in EPA's Information Collection
Request (DCN 3-3084-R2 in Docket W-00-03) and in the questionnaires
(see DCN 3-0030 and 3-0031 in Docket W-00-03 and Docket for today's
proposal); these documents are also available on EPA's web site (http://www.epa.gov/waterscience/316b/question/).
C. Site Visits
From 1993 to the present, EPA has conducted site visits to numerous
power generating stations around the country to observe cooling water
intake structure design and operations and document examples of
different cooling water intake structure configurations. EPA has
visited the plants (each with either a once-through or closed-cycle,
recirculating cooling system, except as noted) listed below:
California: Moss Landing Power Plant and Pittsburg Power Plant
Florida: Big Bend Power Station, St. Lucie Plant, Martin
Plant, and Riviera Beach Power Plant
Illinois: Will County Station and Zion Nuclear Power Station
[[Page 17135]]
Indiana: Clifty Creek Station and Tanners Creek Plant
Maryland: Calvert Cliffs Nuclear Power Plant and Chalk Point
Generating Station
Massachusetts: Pilgrim Nuclear Power Station
Nevada: El Dorado Energy Power Plant (dry cooling)
New York: Indian Point Nuclear Power Plant and Lovett
Generating Station
New Jersey: Salem Generating Station
Ohio: Cardinal Plant, W.H. Zimmer Plant, and W.C. Beckjord
Station
Wisconsin: Valley Power Plant and Pleasant Prairie Power Plant
D. Data Provided to EPA by Industrial, Trade, Consulting, Scientific or
Environmental Organizations or by the General Public
1. Public Participation
EPA has worked extensively with stakeholders from industry, public
interest groups, state agencies, and other Federal agencies in the
development of this proposed rule. These public participation
activities have focused on various section 316(b) issues, including
general issues, as well as issues relevant to development of the Phase
I rule and issues relevant to the proposed Phase II rule. See section
I.C.5 of this preamble for a discussion of key public participation
activities.
2. Data and Documents Collected by EPA
Since 1993, EPA has developed cooling water regulations as part of
a collaborative effort with industry and environmental stakeholders,
other Federal agencies, the academic and scientific communities as well
as the general public. As such, EPA has reviewed and considered the
many documents, demonstration studies, scientific analyses and
historical perspectives offered in support of each phase of the
regulatory process. For example, during the early stages of data
gathering EPA created an internal library of reference documents
addressing cooling water intake structure issues. This library
currently holds over 2,800 documents, many of which were referenced in
the rulemaking process and are contained in the record (see below for
further information on the record). The library contains a thorough
collection of a wide variety of documents, including over 80 316(b)
demonstration documents, over 300 impingement and entrainment studies,
over 100 population modeling studies, over 500 fish biology and stock
assessment documents, over 350 biological studies commissioned by power
generators, over 80 NPDES decisions and NPDES or SPDES-related
documents, over 120 intake technology reports, over 10 databases on the
electric power industry, and documents from interagency committees such
as the Ohio River Valley Water Sanitation Commission (ORSANCO).
The record for the new facility rule contains nearly 1,000
documents (research articles, databases, legal references, memorandums,
meeting notes, and other documents), consisting of approximately 47,000
pages of supporting material available for public review. The record
for this proposed rule contains over 40 additional documents.
For a more complete list of reference and technical documents, see
the record for this proposed rule.
IV. Overview of Facility Characteristics (Cooling Water Systems &
Intakes) for Industries Potentially Subject to Proposed Rule
As discussed above, today's proposed rule would apply to Phase II
existing facilities, which include any existing facility that both
generates and transmits electric power, or generates electric power but
sells it to another entity existing for transmission and that meets the
other applicability criteria in Sec. 125.91: (1) They are a point
source that uses or proposes to use a cooling water intake structure;
(2) they have at least one cooling water intake structure that uses at
least 25 percent of the water it withdraws for cooling purposes; (3)
they have a design intake flow of 50 million gallons per day (MGD) or
greater; and (4) they have an NPDES permit or are required to obtain
one. Today's rule does not apply to facilities whose primary business
activity is not power generation, such as manufacturing facilities that
produce electricity by co-generation.
Based on data collected from the Short Technical Industry
Questionnaire and Detailed Questionnaire, and compliance requirements
in today's proposed rule, EPA has identified 539 facilities to which
today's rule will apply, and estimates that the total number could be
549. The Agency has identified 420 plants owned by utilities that are
potentially subject to proposed rule. The Agency estimates that 129
nonutilities may potentially be subject to the proposed rule. This
number, however, is subject to some uncertainty. The Agency has
identified 119 plants owned by nonutilities that are potentially
subject to the proposed rule, and after taking into account a small
non-response rate to the survey among nonutilities, the Agency's best
estimate of the total number is 129.
Sources of Surface Water. The source of surface water withdrawn for
cooling is an important factor in determining potential environmental
impacts. An estimated 8 nonutility facilities and 15 utility facilities
withdraw all cooling water from an ocean. An estimated 55 nonutility
facilities and 50 utility facilities withdraw all cooling water from an
estuary or tidal river. An estimated 50 nonutility facilities and 203
utility facilities withdraw all cooling water from a freshwater stream
or river. An estimated 12 or 13 nonutility facilities and 136 utility
facilities withdraw all cooling water from a lake or reservoir,
including 15 utilities on the Great Lakes. Fewer than 20 plants
withdraw cooling water from a combination of these sources.
Average Daily Cooling Water Intake in 1998. Of the estimated 129
nonutility plants that are potentially subject to this proposed rule,
EPA estimates that in 1998, 4 plants had an average intake of not more
than 10 million gallons per day (MGD), 12 had an average intake more
than 10 MGD and not over 50 MGD, 20 had an average intake more than 50
MGD but not over 100 MGD, and 90 had an average intake over 100 MGD
(three had zero or unreported intake). Note that coverage under the
rule is based on design intake, not average intake flow. Of the 420
utility plants that are potentially subject to this proposed rule, EPA
found that in 1998, 8 plants had an average intake of not more than 10
million gallons per day (MGD), 59 had an average intake more than 10
MGD and not over 50 MGD, 58 had an average intake more than 50 MGD but
not over 100 MGD, and 288 had an average intake over 100 MGD (seven had
zero or unreported intake).
Cooling Water Systems. Facilities may have more than one cooling
water system. Therefore, in providing the information on cooling water
systems, a plant may be counted multiple times (as many times as it has
distinct cooling water systems). Thus, of the plants that are
potentially subject to this proposed rule, the 129 nonutility plants
are counted 165 times; the 420 utility plants are counted 599 times. As
a consequence, the percentages reported sum to more than 100 percent.
Among nonutility plants, 110 plants (85 percent) use once-through
cooling systems, 16 plants (12 percent) use closed-cycle, recirculating
cooling systems, and an estimated 6 plants (5 percent) use another type
of system. Of the estimated 599 utility plants, 314 plants (75 percent)
use once-through cooling systems, 65 plants (15 percent)
[[Page 17136]]
use closed-cycle, recirculating cooling systems, and 49 plants (12
percent) use another type of system.
Cooling Water Intake Structure Configurations. Facilities may have
more than one cooling water intake structure configuration. Therefore,
in providing the information on cooling water systems, a plant may be
counted multiple times (as many times as it has distinct cooling water
intake structure configurations). Thus, of the plants that are
potentially subject to this proposed rule, the 129 nonutility plants
are counted 194 times and the 420 utility plants are counted 690 times.
As a consequence, the percentages reported sum to more than 100
percent. Of the estimated 129 nonutility plants that are potentially
subject to this proposed rule, 30 (23 percent) withdraw cooling water
through a canal or channel, 13 (10 percent) have an intake structure
situated in a natural or constructed bay or cove, 96 (74 percent) have
an intake structure (surface or submerged) that is flush with the
shoreline, and 16 (12 percent) have a submerged offshore intake
structure. Of the 420 utility plants that are potentially subject to
this proposed rule, 142 (34 percent) withdraw cooling water through a
canal or channel, 41 (10 percent) have an intake situated in a bay or
cove, 251 (60 percent) have a shoreline intake, 59 (14 percent) have a
submerged offshore intake, and 6 (1 percent) have another type of
configuration or reported no information.
V. Environmental Impacts Associated With Cooling Water Intake
Structures
The majority of environmental impacts associated with intake
structures are caused by water withdrawals that ultimately result in
aquatic organism losses. This section describes the general nature of
these biological impacts; discusses specific types of impacts that are
of concern to the Agency; and presents examples of documented impacts
from a broad range of facilities. EPA believes that in light of the
national scope of today's proposed rule, it is important to present the
variety of impacts observed for facilities located on different
waterbody types, under high and low flow withdrawal regimes, and
operating with and without technologies designed to reduce
environmental impacts.
Based on preliminary estimates from the questionnaire sent to more
than 1,200 existing power plants and factories, industrial facilities
in the United States withdraw more than 279 billion gallons of cooling
water a day from waters of the U.S.\8\ The withdrawal of such large
quantities of cooling water affects large quantities of aquatic
organisms annually, including phytoplankton (tiny, free-floating
photosynthetic organisms suspended in the water column), zooplankton
(small aquatic animals, including fish eggs and larvae, that consume
phytoplankton and other zooplankton), fish, crustaceans, shellfish, and
many other forms of aquatic life. Aquatic organisms drawn into cooling
water intake structures are either impinged on components of the
cooling water intake structure or entrained in the cooling water system
itself.
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\8\ EPA 2000. Detailed Industry Questionnaire: Phase II Cooling
Water Intake Structures. U.S. Environmental Protection Agency,
Office of Wastewater Management, Washington, DC. OMB Control No.
2040-0213.
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Impingement takes place when organisms are trapped against intake
screens by the force of the water passing through the cooling water
intake structure. Impingement can result in starvation and exhaustion
(organisms are trapped against an intake screen or other barrier at the
entrance to the cooling water intake structure), asphyxiation
(organisms are pressed against an intake screen or other barrier at the
entrance to the cooling water intake structure by velocity forces that
prevent proper gill movement, or organisms are removed from the water
for prolonged periods of time), and descaling (fish lose scales when
removed from an intake screen by a wash system) as well as other
physical harms.
Entrainment occurs when organisms are drawn through the cooling
water intake structure into the cooling system. Organisms that become
entrained are normally relatively small benthic,\9\ planktonic,\10\ and
nektonic \11\ organisms, including early life stages of fish and
shellfish. Many of these small organisms serve as prey for larger
organisms that are found higher on the food chain. As entrained
organisms pass through a plant's cooling system they are subject to
mechanical, thermal, and/or toxic stress. Sources of such stress
include physical impacts in the pumps and condenser tubing, pressure
changes caused by diversion of the cooling water into the plant or by
the hydraulic effects of the condensers, sheer stress, thermal shock in
the condenser and discharge tunnel, and chemical toxemia induced by
antifouling agents such as chlorine. The mortality rate of entrained
organisms varies by species; mortality rates for fish can vary from 2
to 97 percent depending on the species and life stage entrained.\12,\
\13\ Naked goby larvae demonstrated mortality rates as low as 2 percent
whereas bay anchovy larvae mortality rates were as high as 97
percent.\14\ Macroinvertebrate mortality ranged from 0 to 84 percent
for several species evaluated, but rates were usually less than 29
percent.\15,\ \16\
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\9\ Refers to bottom dwellers that are generally small and
sessile (attached) such as mussels and anemones, but can include
certain large motile (able to move) species such as crabs and
shrimp. These species can be important members of the food chain.
\10\ Refers to free-floating microscopic plants and animals,
including the egg and larval stages of fish and invertebrates that
have limited swimming abilities. Plankton are also an important
source of food for other aquatic organisms and an essential
component of the food chain in aquatic ecosystems.
\11\ Refers to free-swimming organisms (e.g., fish, turtles,
marine mammals) that move actively through the water column and
against currents.
\12\ Mayhew, D.A., L.D. Jensen, D.F. Hanson, and P.H. Muessig.
2000. A comparative review of entrainment survival studies at power
plants in estuarine environments. Environmental Science and Policy
3:S295-S301.
\13\ EPRI. 2000. Review of entrainment survival studies: 1970-
2000. Prepared by EA Engineering Science and Technology for the
Electric Power Research Institute, Palo Alto, CA.
\14\ Ibid.
\15\ Mayhew, D.A., L.D. Jensen, D.F. Hanson, and P.H. Muessig.
2000. A comparative review of entrainment survival studies at power
plants in estuarine environments. Environmental Science and Policy
3:S295-S301.
\16\ EPRI. 2000. Review of entrainment survival studies: 1970-
2000. Prepared by EA Engineering Science and Technology for the
Electric Power Research Institute, Palo Alto, CA.
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In addition to impingement and entrainment losses associated with
the operation of the cooling water intake structure, EPA is concerned
about the cumulative overall degradation of the aquatic environment as
a consequence of (1) multiple intake structures operating in the same
watershed or in the same or nearby reaches and (2) intakes located
within or adjacent to an impaired waterbody. Historically, impacts
related to cooling water intake structures have been evaluated on a
facility-by-facility basis. The potential cumulative effects of
multiple intakes located within a specific waterbody or along a coastal
segment were not typically assessed and thus are largely unknown. (One
relevant example is provided for the Hudson River; see discussion
below. Also see recently completed case studies for the Delaware
Estuary and Ohio River in the Case Study Document). There is concern,
however, about the effects of multiple intakes on fishery stocks. As an
example, the Atlantic States Marine Fisheries Commission has been
requested by its member States to investigate the cumulative impacts on
commercial fishery stocks, particularly overutilized stocks,
attributable to
[[Page 17137]]
cooling water intakes located in coastal regions of the Atlantic.\17\
Specifically, the study will focus on revising existing fishery
management models so that they accurately consider and account for fish
losses from multiple intake structures.
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\17\ Personal communication, D. Hart (EPA) and L. Kline (ASMFC),
2001.
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Further, the Agency believes that cooling water intakes potentially
contribute additional stress to waters already showing aquatic life
impairment from other sources such as industrial discharges and urban
stormwater. EPA notes that the top four leading causes of waterbody
impairment (siltation, nutrients, bacteria, and metals) affect the
aquatic life uses of a waterbody. Thus, the Agency is concerned that
many of the aquatic organisms subject to the effects of cooling water
withdrawals reside in impaired waterbodies and are therefore
potentially more vulnerable to cumulative impacts from an array of
physical and chemical anthropogenic stressors.
When enough individual aquatic organisms are subject to lethal or
function-impairing stressors, whether from cooling water intake
structures or water pollutants, the structure of their ecosystem can
change significantly in response. Changes in ecosystem structure can
then affect all organisms within the ecosystem, including those
organisms a cooling water intake structure does not directly impact.
Decreased numbers of aquatic organisms can have any or several of
the following ecosystem-level effects: (1) Disruption of food webs,\18\
(2) disruption of nutrient, carbon, and energy transfers among the
physical and biological ecosystem compartments,\19\ (3) alteration of
overall aquatic habitat,\20\ and (4) alteration of species composition
and overall levels of biodiversity.\21\
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\18\ Food webs are modified by cooling water intake structure
impacts because (1) some species within the ecosystem suffer heavier
mortality impacts than others, and (2) cooling water intake
structures convert living organisms to various forms of organic
matter, thereby removing food resources from consumers of living
organisms, and increasing food resources for scavengers and
decomposers.
\19\ Cooling water intake structures can transfer large amounts
of nutrients, carbon, and energy from living organisms (in some
cases highly mobile or migratory organisms) to the physical
environment. Nutrients, carbon, and energy may re-enter the
biological compartment, but they will do so via different pathways
than those used prior to cooling water intake structures operation
(see alteration of food webs).
\20\ In addition to altering the physical nature of aquatic
habitat directly (e.g., current modification and water withdrawal),
cooling water intake structure may modify habitat by reducing
numbers of habitat-modifying organisms (e.g., Pacific salmon).
\21\ Species may disappear from a site in response to cooling
water intake structure impacts. Threatened and endangered or
otherwise rare or sensitive species may be at greater risk. New
species (including invasive species), may establish themselves
within the disrupted area if they are able to withstand cooling
water intake structure impacts.
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The nature and extent of the ecosystem-level effect depends on the
characteristics of the aquatic organism and its interactions with other
members of the ecosystem. Some species, known as ``keystone species,''
have a larger impact on ecosystem structure and function than other
species. Examples of keystone species from cooling water intake
structure-impacted water bodies include menhaden, Pacific salmon, and
Eastern oysters.
As discussed above, structural changes at the ecosystem level are
influenced by a large number of forces at work within the ecosystem.
Because of the large number of these forces and the complexity of their
interactions, ecologists can find it difficult to determine the
contribution of any one stressor to a structural change in an
ecosystem. Much work remains to be done to determine the extent to
which cooling water intake structures induce structural change in their
host ecosystems through impingement and entrainment of aquatic
organisms. Nevertheless, EPA believes that many cooling water intake
structures clearly have a significant negative impact on aquatic
organisms at the individual level. The studies discussed below suggest
that these individual-level impacts can lead to negative impacts at
higher organizational levels.
In addition to ecosystem-level impacts, EPA is concerned about the
potential impacts of cooling water intake structures located in or near
habitat areas that support threatened, endangered, or other protected
species. Although limited information is available on locations of
threatened or endangered species that are vulnerable to impingement or
entrainment, such impacts do occur. For example, EPA is aware that from
1976 to 1994, approximately 3,200 threatened or endangered sea turtles
entered enclosed cooling water intake canals at the St. Lucie Nuclear
Generating Plant in Florida.\22\ The plant developed a capture-and-
release program in response to these events. Most of the entrapped
turtles were captured and released alive; however, approximately 160
turtles did not survive. More recently, the number of sea turtles being
drawn into the intake canal increased to approximately 600 per year.
Elevated numbers of sea turtles found within nearshore waters are
thought to be part of the reason for the rising numbers of turtles
entering facility waters. In response to this increase, Florida Power
and Light Co. proposed installation of nets with smaller size mesh (5-
inch square mesh rather than 8-inch square mesh) at the St. Lucie
facility to minimize entrapment.\23\
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\22\ Florida Power and Light Company. 1995. Assessment of the
impacts at the St. Lucie Nuclear Generating Plant on sea turtle
species found in the inshore waters of Florida.
\23\ Ibid.
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Finally, EPA is concerned about environmental impacts associated
with re-siting or modification of existing cooling water intake
structures. Three main factors contribute to the environmental impacts:
Displacement of biota and habitat resulting from the physical siting or
modification of a cooling water intake structure in an aquatic
environment, increased levels of turbidity in the aquatic environment,
and effects on biota and habitat associated with aquatic disposal of
materials excavated during re-siting or modification activities.
Existing programs, such as the CWA section 404 program, National
Environmental Policy Act (NEPA) program, and programs under State/
Tribal law, include requirements that address many of the environmental
impact concerns associated with the intake modifications (see Section X
for applicable Federal statutes).
A. Facility Examples
The following discussion provides a number of examples of
impingement and entrainment impacts that can be associated with
existing facilities. It is important to note that these examples are
meant to illustrate the range of impacts that can occur nationally at
facilities sited at diverse geographic locations, differing waterbody
types, and with a variety of control technologies in place. In some
cases, the number of organisms impinged and entrained by a facility can
be substantial and in other examples impingement and entrainment may be
minimal due to historical impacts from anthropogenic activities such as
stream or river channelization. EPA notes that these examples are not
representative of all sites whose facilities use cooling water intake
structures and that these examples may not always reflect subsequent
action that may have been taken to address these impacts on a site-
specific basis. (Facility reports documenting the efficacy of more
recently installed control technologies are not always available to the
Agency.) With this background, EPA provides the following examples,
illustrating that the impacts attributable to impingement
[[Page 17138]]
and entrainment at individual facilities may result in appreciable
losses of early life stages of fish and shellfish (e.g., three to four
billion individuals annually \24\), serious reductions in forage
species and recreational and commercial landings (e.g., 23 tons lost
per year \25\), and extensive losses over relatively short intervals of
time (e.g., one million fish lost during a three-week study
period).\26\
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\24\ EPA Region IV. 1979. Brunswick Nuclear Steam Electric
Generating Plant of Carolina Power and Light Company, historical
summary and review of section 316(b) issues.
\25\ EPA Region IV. 1986. Findings and determination under 33
U.S.C. 1326, In the Matter of Florida Power Corporation Crystal
River Power Plant Units 1, 2, and 3, NPDES permit no. FL0000159.
\26\ Thurber, N.J. and D.J. Jude. 1985. Impingement losses at
the D.C. Cook Nuclear Power Plant during 1975-1982 with a discussion
of factors responsible and possible impact on local populations.
Special report no. 115 of the Great Lakes Research Division, Great
Lakes and Marine Waters Center, University of Michigan.
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In addition, some studies estimating the impact of impingement and
entrainment on populations of key commercial or recreational fish have
predicted substantial declines in population size. This has led to
concerns that some populations may be altered beyond recovery. For
example, a modeling effort evaluating the impact of entrainment
mortality on a representative fish species in the Cape Fear estuarine
system predicted a 15 to 35 percent reduction in the species
population.\27\ More recent modeling studies of Mount Hope Bay,
Massachusetts, predicted 87 percent reductions in overall finfish
abundance (see Brayton Point Generating Station discussion below for
additional detail.) EPA acknowledges that existing fishery resource
baselines may be inaccurate.\28\ Further, according to one article,
``[e]ven seemingly gloomy estimates of the global percentage of fish
stocks that are overfished are almost certainly far too low.'' \29\
Thus, EPA is concerned that historical overfishing may have increased
the sensitivity of aquatic ecosystems to subsequent disturbance, making
them more vulnerable to human impact and potential collapse.
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\27\ EPA Region IV. 1979. Brunswick Nuclear Steam Electric
Generating Plant of Carolina Power and Light Company, historical
summary and review of section 316(b) issues.
\28\ Watson, R. and D. Pauly. 2001. Systematic distortions in
world fisheries catch trends. Nature 414-534-536.
\29\ Jackson J.B.C., M.X. Kirby, W.H. Berger, K.A. Bjorndal,
L.W. Botsford, B.J. Bourque, R.H. Bradbury, R. Cooke, J. Erlandson,
J.A. Estes, T.P. Hughes, S. Kidwell, C.B. Lange, H.S. Lenihan, J.M.
Pandolfi, C.H. Peterson, R.S. Steneck, M.J. Tegner, and R.R. Warner,
2001. Historical overfishing and the recent collapse of coastal
ecosystems. Science 293(5530): 629-638.
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Further, studies of entrainment at five Hudson River power plants
during the 1980s predicted year-class reductions ranging from six
percent to 79 percent, depending on the fish species.\30\ An updated
analysis completed in 2000 of entrainment at three of these power
plants predicted year-class reductions of up to 20 percent for striped
bass, 25 percent for bay anchovy, and 43 percent for Atlantic tom cod,
even without assuming 100 percent mortality of entrained organisms.\31\
The New York Department of Environmental Conservation concluded that
these reductions in year-class strength were ``wholly unacceptable''
and that any ``compensatory responses to this level of power plant
mortality could seriously deplete any resilience or compensatory
capacity of the species needed to survive unfavorable environmental
conditions.'' \32\
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\30\ Boreman J. and P. Goodyear. 1988. Estimates of entrainment
mortality for striped bass and other fish species inhabiting the
Hudson River Estuary. American Fisheries Society Monograph 4:152-
160.
\31\ Consolidated Edison Company of New York. 2000. Draft
environmental impact statement for the state pollutant discharge
elimination system permits for Bowline Point, Indian Point 2 & 3,
and Roseton steam electric generating stations.
\32\ New York Department of Environmental Conservation (NYDEC).
2000. Internal memorandum provided to the USEPA on NYDEC's position
on SPDES permit renewals for Roseton, Bowline Point 1 & 2, and
Indian Point 2 & 3 generating stations.
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In contrast, facilities sited on waterbodies previously impaired by
anthropogenic activities such as channelization may demonstrate limited
entrainment and impingement losses. The Neal Generating Complex
facility, located near Sioux City, Iowa, on the Missouri River is coal-
fired and utilizes once-through cooling systems. According to a ten-
year study conducted from 1972-82, the Missouri River aquatic
environment near the Neal complex was previously heavily impacted by
channelization and very high flow rates meant to enhance barge traffic
and navigation.\33\ These anthropogenic changes to the natural river
system resulted in significant losses of habitat necessary for
spawning, nursery, and feeding. At this facility, fish impingement and
entrainment by cooling water intakes were found to be minimal.
---------------------------------------------------------------------------
\33\ Morningside College. 1982. Missouri River aquatic ecology
studies. Prepared for Iowa Public Service Company, Sioux City, Iowa.
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The following are summaries of other, documented examples of
impacts occurring at existing facilities sited on a range of waterbody
types. Also, see the Case Study Document and the benefits discussion in
Section IX of this notice.
Brayton Point Generating Station. The Brayton Point Generating
Station is located on Mt. Hope Bay, in Somerset, Massachusetts, within
the northeastern reach of Narragansett Bay. Because of problems with
electric arcing caused by salt drift from an open spray pod design
located near transmission wires, and lack of fresh water to replace the
salt water used for the closed-cycle recirculating spray pod cooling
water system, the company converted Unit 4 from a closed-cycle,
recirculating system to a once-through cooling water system in July
1984. The modification of Unit 4 resulted in a 41 percent increase in
coolant flow, amounting to a maximum average intake flow of
approximately 1.3 billion gallons per day and increased thermal
discharge to the bay.\34\ An analysis of fisheries data by the Rhode
Island Division of Fish and Wildlife using a time series-intervention
model showed an 87 percent reduction in finfish abundance in Mt. Hope
Bay coincident with the Unit 4 modification.\35\ The analysis also
indicated that, in contrast, finfish abundance trends have been
relatively stable in adjacent coastal areas and portions of
Narragansett Bay that are not influenced by the operation of Brayton
Point station. Thus, overall finfish biomass and finfish species
diversity declined in Mount Hope Bay but not in Narragansett Bay. There
appear to be multiple, interacting factors that influence these
declines including overfishing and climate change as well as
temperature increases from thermal discharges and impingement and
entrainment losses associated with the Brayton Point facility.
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\34\ Metcalf & Eddy. 1992. Brayton Point station monitoring
program technical review. Prepared for USEPA.
\35\ Gibson, M. 1995 (revised 1996). Comparison of trends in the
finfish assemblages of Mt. Hope Bay and Narragansett Bay in relation
to operations of the New England Power Brayton Point station. Rhode
Island Division of Fish and Wildlife, Marine Fisheries Office.
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San Onofre Nuclear Generating Station. The San Onofre Nuclear
Generating Station (SONGS) is located on the coastline of the Southern
California Bight, approximately 2.5 miles southeast of San Clemente,
California.\36\ The marine portions of Units 2 and 3, which are once-
through, open-cycle cooling systems, began commercial operation in
August 1983 and April 1984, respectively.\37\ Since
[[Page 17139]]
then, many studies evaluated the impact of the SONGS facility on the
marine environment.
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\36\ Southern California Edison. 1988. Report on 1987 data:
marine environmental analysis and interpretation, San Onofre Nuclear
Generating Station.
\37\ Ibid.
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In a normal (non-El Nino) year, an estimated 121 tons of midwater
fish (primarily northern anchovy, queenfish, and white croaker) may be
entrained at SONGS.\38\ The fish lost include approximately 350,000
juveniles of white croaker, a popular sport fish; this number
represents 33,000 adult individuals or 3.5 tons of adult fish. Within 3
kilometers of SONGS, the density of queenfish and white croaker in
shallow-water samples decreased by 34 and 36 percent, respectively.
Queenfish declined by 50 to 70 percent in deepwater samples.\39\ In
contrast, relative abundances of bottom-dwelling adult queenfish and
white croaker increased in the vicinity of SONGS.\40\ Increased numbers
of these and other bottom-dwelling species were believed to be related
to the enriching nature of SONGS discharges, which in turn support
elevated numbers of prey items for bottom fish.\41\
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\38\ Swarbrick, S. and R.F. Ambrose. 1989. Technical report C:
entrapment of juvenile and adult fish at SONGS. Prepared for Marine
Review Committee.
\39\ Kastendiek, J. and K. Parker. 1988. Interim technical
report: midwater and benthic fish. Prepared for Marine Review
Committee.
\40\ Swarbrick, S. and R.F. Ambrose. 1989. Technical report C:
entrapment of juvenile and adult fish at SONGS. Prepared for Marine
Review Committee.
\41\ Kastendiek, J. and K. Parker. 1988. Interim technical
report: midwater and benthic fish. Prepared for Marine Review
Committee.
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Pittsburg and Contra Costa Power Plants. The Pittsburg and Contra
Costa Power Plants are located in the San Francisco Bay-Delta Estuary,
California. Several local fish species (e.g., Delta smelt, Sacramento
splittail, chinook salmon, and steelhead) found in the vicinity of the
facilities are now considered threatened or endangered by Sate and/or
Federal authorities. EPA evaluated facility data on impingement and
entrainment rates for these species and estimated that potential losses
of special status fish species at the two facilities may reach 145,003
age 1 equivalents per year resulting from impingement and 269,334 age 1
equivalents per year due to entrainment \42\ Based on restoration costs
for these species, EPA estimates that the value of the potential
impingement losses of these species is $12.8 to 43.2 million per year
and the value of potential entrainment is $25.6 million to $83.2
million per year (all in $2001).
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\42\ Impingement and entrainment data were obtained from the
2000 Draft Habitat Conservation Plan for the Pittsburg and Contra
Costa facilities. Please see EPA's Case Study Document for detailed
information on EPA's evaluation of impingement and entrainment at
these facilities.
---------------------------------------------------------------------------
Lovett Generating Station. The Lovett Generating Station is located
in Tompkins Cove, New York, on the western shore of the Hudson River.
As a method of reducing ichthyoplankton (free floating fish eggs and
larvae) entrainment at the Lovett station, the Gunderboom Marine Life
Exclusion System was installed in 1995 at the Unit 3 intake structure.
Gunderboom is a woven mesh material initially designed to prevent
waterborne pollutants from entering shoreline environments during
construction or dredging activities. Since its initial installation,
the Gunderboom system has undergone a series of tests and modifications
to resolve problems with fabric clogging, anchoring, and the boom
system. Data from testing in 1998 demonstrated that with the Gunderboom
system in place, entrainment of eggs, larvae, and juveniles was reduced
by 80 percent.\43\
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\43\ Lawler, Matusky & Skelly Engineers. 1998. Lovett Generating
Station Gunderboom system evaluation program 1998.
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Ohio River. EPA evaluated entrainment and impingement impacts at
nine in-scope facilities along a 500-mile stretch of the Ohio River as
one of its case studies. Results from these nine facilities were
extrapolated to 20 additional in-scope facilities. All in-scope
facilities spanned a stretch of the Ohio River that extended from the
western portion of Pennsylvania, along the southern border of Ohio, and
into eastern Indiana. Impingement losses for all in-scope facilities
were approximately 11.3 million fish (age 1 equivalents) annually;
entrainment losses totaled approximately 23.0 million fish (age 1
equivalents) annually.\44\ EPA believes that the results from this case
study may not be representative of entrainment and impingement losses
along major U.S. rivers because they are based on limited data
collected nearly 25 years ago. In addition, due to improvements in
water quality and implementation of fishery management plans, fish
populations near these facilities may have increased and therefore
these results may underestimate current entrainment and impingement at
Ohio River facilities.
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\44\ Please see EPA's Case Study Document for more detailed
information on these facilities and the data and methods used by EPA
to calculate age 1 equivalent losses.
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Power Plants with Flows Less Than 500 MGD. The following results
from the case studies conducted by EPA under this rulemaking effort
provide an indication of impingement and entrainment rates for
facilities with lower flows than the previous examples. Impingement and
entrainment rates are expressed as numbers of age 1 equivalents,
calculated by EPA from the impingement and entrainment data provided in
facility monitoring reports.\45\
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\45\ Ibid.
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The Pilgrim Nuclear Power Station, located on Cape Cod
Bay, Massachusetts, has an intake flow of 446 MGD.\46\ The average
annual number of age 1 equivalents impinged at Pilgrim from 1974-1999
was 52,800 fish. The average annual number entrained was 14.4 million
fish.
---------------------------------------------------------------------------
\46\ U.S. Department of Energy. 1999. Form EIA-767 (1999).
Steam-electric plant operation and design report. Edison Electric
Institute.
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The Miami Fort Power Plant, located on the Ohio River
about 20 miles downstream of Cincinnati, has an intake flow of about
98.7 MGD \47\ and combined average impingement and entrainment of about
1.8 million age 1 equivalent fish per year (298,027 impinged and
1,519,679 entrained).
---------------------------------------------------------------------------
\47\ Ibid.
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The JR Whiting Plant, located in Michigan on Lake Erie
has an intake flow of 308 MGD.\48\ The average annual number of age 1
equivalent fish entrained was 1.8 million. Before installation of a
deterrent net in 1980 to reduce impingement, some 21.5 million age 1
equivalents were lost to impingement at the facility each year. These
losses were reduced by nearly 90 percent with application of the
deterrent net.\49\
---------------------------------------------------------------------------
\48\ Ibid.
\49\ Consumers Power Company. 1984, 1988, and 1992 reports of
deterrent net performance, J.R. Whiting Plant. Prepared for the
Michigan Water Resources Commission.
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Studies like those described in this section may provide only a
partial picture of the severity of environmental impact associated with
cooling water intake structures. Most important, the methods for
evaluating adverse environmental impact used in the 1970s and 1980s,
when most section 316(b) evaluations were performed, were often
inconsistent and incomplete, making detection and consideration of all
impacts difficult in some cases, and making cross-facility comparison
difficult for developing a national rule. For example, some studies
reported only gross fish losses; others reported fish losses on the
basis of species and life stage; still others reported percent losses
of the associated population or subpopulation (e.g., young-of-year
fish). Recent advances in environmental assessment techniques provide
new and in some cases better tools for monitoring impingement and
entrainment and detecting impacts associated with the
[[Page 17140]]
operation of cooling water intake structures.50 51
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\50\ Schmitt, R.J. and C.W. Osenberg. 1996. Detecting ecological
impacts. Academic Press, San Diego, CA.
\51\ EPRI. 1999. Catalog of assessment methods for evaluating
the effects of power plant operations on aquatic communities. TR-
112013, EPRI, Palo Alto, CA.
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VI. Best Technology Available for Minimizing Adverse Environmental
Impact at Phase II Existing Facilities
A. What Is the Best Technology Available for Minimizing Adverse
Environmental Impact at Phase II Existing Facilities?
1. How Will Requirements Reflecting Best Technology Available for
Minimizing Adverse Environmental Impact Be Established for My Phase II
Existing Facility?
Today's proposed rule would establish national minimum performance
requirements for the location, design, construction, and capacity of
cooling water intake structures at Phase II existing facilities. These
requirements would represent best technology available for minimizing
adverse environmental impact based on the type of waterbody in which
the intake structure is located, the volume of water withdrawn by a
facility, and the facility's capacity utilization rate. Under this
proposal, EPA would set technology-based performance requirements, but
the Agency would not mandate the use of any specific technology.
A facility may use one of three different methods for establishing
the best technology available for minimizing adverse environmental
impact. Under the first method, a facility would demonstrate to the
Director issuing the permit that the facility's existing design and
construction technologies, operational measures, and/or restoration
measures already meet the national minimum performance requirements
that EPA is proposing.
Under the second method, a facility would select design and
construction technology, operational measures, restoration measures or
some combination thereof. The facility would then demonstrate to the
Director that its selected approach would meet the performance
requirements EPA is proposing.
Under the third method, a facility would calculate its cost of
complying with the presumptive performance requirements and compare
those costs either to the compliance costs EPA estimated in the
analysis for this proposed rule or to a site-specific determination of
the benefits of meeting the presumptive performance requirements. If
the facility's costs are significantly greater than EPA's estimated
costs or site-specific benefits, the facility would qualify for a site-
specific determination of best technology available.
The Agency discusses each of these three methods for compliance and
the proposed presumptive minimum performance requirements in greater
detail below. EPA invites comments on all aspects of this proposed
regulatory framework as well as the alternative regulatory approaches
discussed later in this section.
a. What Are the Performance Standards for the Location, Design,
Construction, and Capacity of Cooling Water Intake Structures To
Reflect Best Technology Available for Minimizing Adverse Environmental
Impact?
EPA is proposing four performance standards at Sec. 125.94(b), all
of which reflect best technology available for minimizing adverse
environmental impact from cooling water intake structures. Under
proposed Sec. 125.94(b)(1), any owner or operator able to demonstrate
that a facility employs technology that reduces intake capacity to a
level commensurate with the use of a closed-cycle, recirculating
cooling system would meet the performance requirements proposed in
today's rule. Use of this type of technology satisfies both impingement
and entrainment performance requirements for all waterbodies.
The performance standards at proposed Sec. 125.94(b)(2),(3), and
(4) are based on the type of waterbody in which the intake structure is
located, the volume of water withdrawn by a facility, the facility
capacity utilization rate, and the location of a facility's intake
structure in relation to fishery resources of concern to permit
authorities or fishery managers. Under the proposed rule, EPA would
group waterbodies into five categories: (1) Freshwater rivers or
streams, (2) lakes or reservoirs, (3) Great Lakes, (4) tidal rivers and
estuaries, and (5) oceans. The Agency considers location to be an
important factor in addressing adverse environmental impact caused by
cooling water intake structures. Because different waterbody types have
different potential for adverse environmental impact, the requirements
proposed to minimize adverse environmental impact would vary by
waterbody type. For example, estuaries and tidal rivers have a higher
potential for adverse impact because they contain essential habitat and
nursery areas for the vast majority of commercial and recreational
important species of shell and fin fish, including many species that
are subject to intensive fishing pressures. Therefore, these areas
require a higher level of control that includes both impingement and
entrainment controls. Organisms entrained may include small species of
fish and immature life stages (eggs and larvae) of many species that
lack sufficient mobility to move away from the area of the intake
structure. The reproductive strategies of many estuarine species
include pelagic or planktonic larvae, which are very susceptible to
entrainment.
EPA discussed these concepts in a Notice of Data Availability
(NODA) for the new facility rule (66 FR 28853, May 25, 2001) and
invited comment on a number of 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, which make them more susceptible than other waterbodies to
impacts from cooling water intake structures. In addition to these
documents, the NODA presented information regarding the low entrainment
susceptibility of non-tidal freshwater rivers and streams to cooling
water intake structure impacts. This information 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.
In general, commenters on the NODA agreed that location is an
important factor in assessing the impacts of cooling water intake
structure, but that creating a regulatory framework to specifically
address locational issues would be extremely difficult. In the end, EPA
elected not to vary requirements for new facilities on the basis of
whether a cooling water intake structure is located in one or another
broad category of waterbody type. Instead, EPA promulgated the same
technology-based performance requirements for all new facilities,
regardless of the waterbody type after finding this approach to be
economically practicable.
For the Phase II existing facility rule, which would establish the
best technology available for minimizing adverse environmental impact
in all waterbody types, EPA is again proposing an approach that it
believes is economically practicable, but is proposing to require the
most control in areas where such controls would yield the greatest
reduction in impingement and entrainment. EPA believes that section
316(b) affords EPA such
[[Page 17141]]
discretion because unlike the sections authorizing technology-based
effluent limitations guidelines and new source performance standards
for the discharge of pollutants, section 316(b) expressly states that
its objective is to require best technology available for minimizing
adverse environmental impact. EPA believes this language affords the
Agency discretion to consider the environmental effects of various
technology options. Therefore, EPA is proposing to vary technology-
based performance requirements by waterbody type, requiring more
effective controls in waterbodies with higher overall productivity or
greater sensitivity to impingement and entrainment. (Appendix 1 to the
preamble presents the proposed regulatory framework in a flow chart).
Under this approach, facilities that operate at less than 15
percent capacity utilization would be required to have only impingement
control technology. This level of control was found to be the most
economically practicable given these facilities' reduced operating
levels. In addition, these facilities tend to operate most often in
mid-winter or late summer, times of peak energy demand but periods of
generally low abundance of entrainable life stages of fish and
shellfish. The flow or capacity of a cooling water intake structure is
also a primary factor affecting the entrainment of organisms. The lower
the intake flow at a site, the lesser the potential for entrained
organisms.
As in the Phase I (new facility) rule, EPA is proposing to set
performance standards for minimizing adverse environmental impact based
on a relatively easy to measure and certain metric-reduction of
impingement mortality and entrainment. EPA is choosing this approach to
provide certainty about permitting requirements and to streamline and
speed the issuance of permits.
Facilities with cooling water intake structures located in a
freshwater river or stream would have different requirements depending
on the proportion of the source waterbody that is withdrawn. If the
intake flow is 5 percent or less of the source water annual mean flow,
then the facility would be required to reduce fish and shellfish
impingement mortality by 80 to 95 percent. If the intake flow is 5
percent or more of the source water annual mean flow, then the facility
would be required to reduce fish and shellfish impingement mortality by
80 to 95 percent and reduce entrainment by 60 to 90 percent. As
described in the new facility proposed rule (65 FR 49060) and NODA (66
FR 28853), EPA believes that, absent entrainment control technologies
entrainment, at a particular site is proportional to intake flow at
that site. As we discuss above, EPA believes it is reasonable to vary
the suite of technologies by the potential for adverse environmental
impact in a waterbody type. EPA is therefore proposing to limit the
requirement for entrainment control in fresh waters to those facilities
that withdraw the largest proportion of water from freshwater rivers or
streams.
Facilities with cooling water intake structures located in a lake
or reservoir would have to implement impingement control technology to
reduce impingement mortality by 80 to 95 percent for fish and
shellfish, and, if they expand their design intake capacity, the
increase in intake flow must not disrupt the natural thermal
stratification or turnover pattern of the source water. Cooling water
intake structures withdrawing from the Great Lakes would be required to
reduce fish and shellfish impingement mortality by 80 to 95 percent and
to reduce entrainment by 60 to 90 percent. As described in the new
facility proposed rule (65 FR 49060) and NODA (66 FR 28853), EPA
believes that the Great Lakes are a unique system that should be
protected to a greater extent than other lakes and reservoirs. The
Agency is therefore proposing to specify entrainment controls as well
as impingement controls for the Great Lakes.
Facilities with cooling water intake structures located in a tidal
river or estuary would need to implement impingement control technology
to reduce impingement mortality by 80 to 95 percent and entrainment by
60 to 90 percent for fish and shellfish. As discussed above, estuaries
and tidal rivers are more susceptible than other water bodies to
adverse impacts from impingement and entrainment.
Facilities with cooling water intake structures located in an ocean
would have to implement impingement control technology to reduce
impingement mortality by 80 to 95 percent and entrainment by 60 to 90
percent for fish and shellfish. EPA is establishing requirements for
facilities withdrawing from oceans that are similar to those proposed
for tidal rivers and estuaries because the coastal zone of oceans
(where cooling water intakes withdraw) are highly productive areas.
(See the new facility proposed rule (65 FR 45060) and documents in the
record (Docket # W-00-03) such as 2-013A through O, 2-019A-R11, 2-019A-
R12, 2-019A-R33, 2-019A-R44, 2-020A, 3-0059.) EPA is also concerned
about the extent to which fishery stocks that rely upon tidal rivers,
estuaries and oceans for habitat are overutilized and seeks to minimize
the impact that cooling water intake structures may have on these
species or forage species on which these fishery stocks may depend.
(See documents 2-019A-R11, 2-019A-R12, 2-019A-R33, 2-019A-R44, 2-020A,
2-024A through O, and 3-0059 through 3-0063 in the record of the Final
New Facility Rule (66 FR 65256), Docket # W-00-03).
EPA is proposing a range of impingement mortality and entrainment
reduction in its requirements for facilities that are required to
select and implement design and construction technologies or
operational or restoration measures to minimize potential impact from
their cooling water intake structures. The calculation baseline against
which compliance with the performance standards should be assessed is a
shoreline intake with the capacity to support once-through cooling and
no impingement mortality or entrainment controls. In many cases
existing technologies at the site achieve some reduction in impingement
and entrainment when compared to this baseline. In such cases,
impingement mortality and entrainment reductions (relative to the
calculated baseline) achieved by these existing technologies should be
counted toward compliance with the performance standards.
EPA is proposing performance ranges rather than a single
performance benchmark because of the uncertainty inherent in predicting
the efficacy of a technology on a site-specific basis. The lower end of
the range is being proposed as the percent reduction that EPA, based on
the available efficacy data, has determined that all facilities could
achieve if they were to implement available technologies and
operational measures on which the performance standards are based. (See
Chapter 5, ``Efficacy of Cooling Water Intake Structure Technologies,''
of the Technical Development Document for the Final Rule for New
Facilities, EPA-821-R-01-036, November 2001). The baseline for
assessing performance is a Phase II existing facility with a shoreline
intake with the capacity to support once-through cooling and no
impingement or entrainment controls. The lower end of the range would
take into account sites where there may be more fragile species that
may not have a high survival rate after coming in contact with fish
protection technologies at the cooling water intake structure (i.e.,
fine mesh screens). The higher end of the range is being proposed as a
percent reduction that
[[Page 17142]]
available data show many facilities can and have achieved with the
available technologies on which the performance standards are based.
Some facilities may be able to exceed the high end of the performance
range, though they would not be required to do so by today's proposed
rule. In specifying a range, EPA anticipates that facilities will
select technologies or operational measures to achieve the greatest
cost-effective reduction possible (within today's proposed performance
range) based on conditions found at their site, and that Directors will
review the facility's application to ensure that appropriate
alternatives were considered. EPA also expects that some facilities may
be able to meet these performance requirements by selecting and
implementing a suite (i.e., more than one) of technologies and
operational measures and/or, as discussed below, by undertaking
restoration measures. EPA invites comment on whether the Agency should
establish regulatory requirements to ensure that facilities achieve the
greatest possible reduction (within the proposed ranges) that can be
achieved at their site using the technologies on which the performance
standards are based. EPA also invites comment on whether EPA should
leave decisions about appropriate performance levels for a facility to
the Director, provided that the facility will achieve performance that
is no lower than the bottom of the performance ranges in today's
proposal.
EPA based the presumptive performance standards specified at
125.94(b), (c), and (d) for impingement mortality reduction, compared
with conventional once-through systems, on the following technologies:
(1) Design and construction technologies such as fine and wide-mesh
wedgewire screens, as well as aquatic filter barrier systems, that can
reduce mortality from impingement by up to 99 percent or greater
compared with conventional once-through systems; (2) barrier nets that
may achieve reductions of 80 to 90 percent; and (3) modified screens
and fish return systems, fish diversion systems, and fine mesh
traveling screens and fish return systems that have achieved reductions
in impingement mortality ranging from 60 to 90 percent as compared to
conventional once-through systems. (See Chapter 5 of the Technical
Development Document for the Final Rule for New Facilities.)
Less full-scale performance data are available for entrainment
reduction. Aquatic filter barrier systems, fine mesh wedgewire screens,
and fine mesh traveling screens with fish return systems achieve 80 to
90 percent greater reduction in entrainment compared with conventional
once-through systems. EPA notes that screening to prevent organism
entrainment may cause impingement of those organisms instead. Questions
regarding impingement survival of relatively delicate fish, larvae, and
eggs would need to be considered by the Director and the facility in
evaluating the efficacy of the technology. In addition, all of these
screening-and-return technologies would need to be evaluated on a case-
by-case basis to determine if they are capable of screening and
protecting the specific species of fish, larvae and eggs that are of
concern at a particular facility.
Several additional factors suggest that the performance levels
discussed above and described in more detail in Chapter 5 of the
Technical Development Document for the Final New Facility Rule can be
improved. First, some of the performance data reviewed is from the
1970's and 1980's and does not reflect recent developments and
innovations (e.g., aquatic filter barrier systems, sound barriers).
Second, these conventional barrier and return system technologies have
not been optimized on a widespread level to date, as would be
encouraged by this rule. Third, EPA believes that many facilities could
achieve further reductions (estimated at 15-30 percent) in impingement
mortality and entrainment by providing for seasonal flow restrictions,
variable speed pumps, and other operational measures and innovative
flow reduction alternatives. For additional discussion, see section
5.5.11 in the Technical Development Document for the new facility rule.
EPA notes that available data described in Chapter 5 of the
Technical Development Document for the Final Rule for New Facilities
suggest that closed-cycle, recirculating cooling systems (e.g., cooling
towers or ponds) can reduce mortality from impingement by up to 98
percent and entrainment by up to 98 percent when compared with
conventional once-through systems. Therefore, although closed-cycle,
recirculating cooling is not one of the technologies on which the
presumptive standards are base, use of a closed-cycle, recirculating
cooling system would achieve the presumptive standards. The proposed
rule, at Sec. 124.94(b)(1) would thus establish the use of a closed-
cycle, recirculating cooling system as one method for meeting the
presumptive standards.
Based on an analysis of data collected through the detailed
industry questionnaire and the short technical questionnaire, EPA
believes that today's proposed rule would apply to 539 existing steam
electric power generating facilities. Of these, 53 facilities that
operate at less than 15 percent capacity utilization would potentially
require only impingement controls, with 34 of these estimated to
actually require such controls. (The remaining 19 facilities have
existing impingement controls). Of the remaining 486 facilities, the
proposed rule would not require any changes at approximately 69 large
existing facilities with recirculating wet cooling systems (e.g., wet
cooling towers or ponds).
Of the remaining 417 steam electric power generating facilities
(i.e., those that exceed 15 percent capacity utilization and have non-
recirculating systems), EPA estimates that 94 are located on freshwater
lakes or reservoirs, 13 are located on the Great Lakes, 109 are located
on oceans, estuaries, or tidal rivers, and 201 are located on
freshwater rivers or streams.
Of the 94 Phase II existing facilities located on freshwater lakes
or reservoirs, EPA estimates that 67 of these facilities would have to
install impingement controls and that 27 facilities already have
impingement controls that meet the proposed rule requirements. As for
existing steam electric power generating facilities located on the
Great Lakes, EPA estimates that the proposed rule would require all 13
such facilities to install impingement and entrainment controls.
Of the 109 facilities located on estuaries, tidal rivers, or
oceans, EPA estimates that 15 facilities would already meet today's
proposed impingement and entrainment controls. The remaining 94
facilities would need to install additional technologies to reduce
impingement, entrainment, or both.
For Phase II existing facilities located on freshwater river or
streams, the proposed rule would establish an intake flow threshold of
five (5) percent of the mean annual flow. Facilities withdrawing more
than this threshold would have to meet performance standards for
reducing both impingement mortality and entrainment. Facilities
withdrawing less than the threshold would only have to meet performance
standards for reducing impingement mortality. EPA estimates that of 201
facilities located on freshwater river or streams, 94 are at or below
the flow threshold, and that only 53 of these facilities would have to
install additional impingement controls (the remaining facilities have
controls in place to meet the proposed rule requirements). EPA
estimates that 107 facilities exceed the flow threshold. Twenty one
(21) of these facilities have
[[Page 17143]]
sufficient controls in place; 86 would require entrainment or
impingement and entrainment controls.
b. How Could a Phase II Existing Facility Use Existing Design and
Construction Technologies, Operational Measures, and/or Restoration
Measures To Establish Best Technology Available for Minimizing Adverse
Environmental Impact?
Under the first option for determination of best technology
available, as specified in proposed Sec. 125.94(a)(1), an owner or
operator of a Phase II existing facility may demonstrate to the permit-
issuing Director that it already employs design and construction
technologies, operational measures, or restoration measures that meet
the performance requirements proposed today. To do this the owner or
operator would calculate impingement mortality and entrainment
reductions of existing technologies and measures relative to the
calculation baseline and compare these reductions to those specified in
the applicable performance standards. EPA expects that owners and
operators of some facilities may be able to demonstrate compliance
through a suite of (i.e., multiple) existing technologies, operational
measures, and/or restoration measures.
To adequately demonstrate the efficacy of existing technologies,
operational measures, and/or restoration measures, a facility owner or
operator must conduct and submit for the Director's review a
Comprehensive Demonstration Study as specified in proposed
Sec. 125.95(b) and described in section VII of today's preamble. In
this Study, the owner or operator would characterize the impingement
mortality and entrainment due to the cooling water intake structure,
describe the nature and operation of the intake structure, and describe
the nature and performance levels of the existing technologies,
operational measures, and restoration measures for mitigating
impingement and entrainment impacts. Owners and operators may use
existing data for the Study as long as it adequately reflects current
conditions at the facility and in the waterbody from which the facility
withdraws cooling water.
c. How Could a Phase II Existing Facility Use Newly Selected Design and
Construction Technologies, Operational Measures, and/or Restoration
Measures To Establish Best Technology Available for Minimizing Adverse
Environmental Impact?
Under the second option for determination of best technology
available specified in proposed Sec. 125.94(a)(2), an owner or operator
of a Phase II existing facility that does not already employ sufficient
design and construction technologies, operational measures, or
restoration measures to meet the proposed performance standards must
select additional technologies and operational or restoration measures.
The owner or operator must demonstrate to the permit-issuing Director
that these additions will, in conjunction with any existing
technologies and measures at the site, meet today's proposed
performance standards. EPA expects that some facilities may be able to
meet their performance requirements by selecting and implementing a
suite (i.e., more than one) of technologies, operational, or
restoration measures.
To adequately demonstrate the efficacy of the selected
technologies, operational measures, and/or restoration measures, a
facility must conduct and submit for the Director's review a
Comprehensive Demonstration Study as specified in proposed
Sec. 125.95(b) and described in section VII of today's preamble. In
this Study, the owner or operator would characterize the impingement
mortality and entrainment due to the cooling water intake structure,
describe the nature and operation of the intake structure, and describe
the nature and performance levels of both the existing and proposed
technologies, operational measures, and restoration measures for
mitigating impingement and entrainment impacts. Owners and operators
may use existing data for the Study as long as it adequately reflects
current conditions at the facility and in the waterbody from which the
facility withdraws cooling water.
If compliance monitoring determines that the design and
construction, operating measures, or restoration measures prescribed by
the permit have been properly installed and were properly operated and
maintained, but were not achieving compliance with the applicable
performance standards, the Director could modify permit requirements
consistent with existing NPDES program regulations (e.g., 40 CFR
122.62, 122.63, and 122.41) and the provisions of this proposal. In the
meantime, the facility would be considered in compliance with its
permit as long as it was satisfying all permit conditions. EPA solicits
comment on whether the proposed regulation should specify that proper
design, installation, operation and maintenance would satisfy the terms
of the permit until the permit is reissued pursuant to a revised Design
and Construction Technology Plan. If EPA were to adopt this approach,
EPA would specify in the regulations that the Director should require
as a permit condition the proper design, installation, operation and
maintenance of design and construction technologies and operational
measures rather than compliance with performance standards.
d. How Could a Phase II Existing Facility Qualify for a Site-Specific
Determination of Best Technology Available for Minimizing Adverse
Environmental Impact?
Under the third option for determination of best technology
available, specified in proposed Sec. 125.94(a)(3), the owner or
operator of a Phase II existing facility may demonstrate to the
Director that a site-specific determination of best technology
available is appropriate for the cooling water intake structure(s) at
that facility if the owner or operator can meet one of the two cost
tests specified in proposed Sec. 125.94(c)(1). To be eligible to pursue
this approach, the facility must first demonstrate to the Director
either: (1) that its costs of compliance with the applicable
performance standards specified in Sec. 125.94(b) would be
significantly greater than the costs considered by the Administrator in
establishing such performance standards; or (2) that the facility's
costs would be significantly greater than the benefits of complying
with the performance standards at the facility's site. A discussion of
applying the cost test is provided in section VI.A.12 of this proposed
rule. A discussion of applying the test in which costs are compared to
benefits is provided in Section VI.A.8.
To adequately demonstrate the efficacy of the selected
technologies, operational measures, and/or restoration measures
considered in the site-specific cost tests, a facility must conduct and
submit for the Director's review a Comprehensive Demonstration Study as
specified in proposed Sec. 125.95(b) and described in section VII of
today's preamble. In this Study, the owner or operator would
characterize the impingement mortality and entrainment due to the
cooling water intake
[[Page 17144]]
structure, describe the nature and operation of the intake structure,
and describe the nature and performance levels of the existing
technologies, operational measures, and restoration measures for
mitigating impingement and entrainment impacts. Owners or operators
would also need to document the costs to the facility of any additional
technologies or measures that would be needed to meet the performance
standards and in the case of the site-specific cost to benefits test,
the monetized benefits of meeting the standards. Owners and operators
may use existing data for the Study as long as it adequately reflects
current conditions at the facility and in the waterbody from which the
facility withdraws cooling water.
Where a Phase II existing facility demonstrates that it meets
either of the cost tests, the Director is to make a site-specific
determination of best technology available for minimizing adverse
environmental impact. This determination would be based on less costly
design and construction technologies, operational measures, and/or
restoration measures proposed by the facility and approved by the
Director. The Director would approve less costly technologies to the
extent justified by the significantly greater cost.
Phase II Existing facilities that pursue this option would have to
assess the nature and degree of adverse environmental impact associated
with their cooling water intake structures, and then identify the best
technology available to minimize such impact. Owners and operators
would be required to submit to the Director for approval a Site-
Specific Technology Plan. This plan would be based on a Comprehensive
Cost Evaluation Study and a Valuation of Monetized Benefits of Reducing
Impingement and Entrainment, as required by proposed
Sec. 125.95(b)(6)(i) and (ii). (See section VII). The Plan would
describe the design and operation of all design and construction
technologies, operational measures, and restoration measures selected,
and provide information that demonstrates the effectiveness of the
selected technologies or measures for reducing the impacts on the
species of concern.
To document that its site-specific costs would be significantly
greater than those EPA considered, the facility would need to develop
engineering cost estimates as part of its Comprehensive Cost Evaluation
Study. The facility would then consider the model plants presented in
EPA's Technical Development Document, determine which model plant most
closely matches its fuel source, mode of electricity generation,
existing intake technologies, waterbody type, geographic location, and
intake flow and compare its engineering estimates to EPA's estimated
cost for this model plant .
2. What Available Technologies Are Proposed as Best Technology
Available for Minimizing Adverse Environmental Impact?
Currently, 14 percent of Phase II existing facilities potentially
subject to this proposal already have a closed-cycle recirculating
cooling water system (69 facilities operating at 15 percent capacity
utilization or more and 4 facilities operating at less than 15 percent
capacity utilization). In addition, 50 percent of the remaining
potentially regulated facilities have some other technology in place
that reduces impingement or entrainment. Thirty-three percent of these
facilities have fish handling or return systems that reduce the
mortality of impinged organisms.
EPA finds that the design and construction technologies necessary
to meet the proposed requirements are commercially available and
economically practicable, because facilities can and have installed
many of these technologies years after a facility began operation.
Typically, additional design and construction technologies such as fine
mesh screens, wedgewire screens, fish handling and return systems, and
aquatic fabric barrier systems can be installed during a scheduled
outage (operational shutdown). Referenced below are examples of
facilities that installed these technologies after they initially
started operating.
Lovett Generating Station. A 495 MW facility (nameplate, gas-fired
steam), Lovett is located in Tomkins Cove, New York, along the Hudson
River. The facility first began operations in 1949 and has 3 generating
units with once-through cooling systems. In 1994, Lovett began the
testing of an aquatic filter fabric barrier system to reduce
entrainment, with a permanent system being installed the following
year. Improvements and additions were made to the system in 1997, 1998,
and 1999, with some adjustments being accepted as universal
improvements for all subsequent installations of this vendor's
technology at other locations.
Big Bend Power Station. Situated on Tampa Bay, Big Bend is a 1998
MW (nameplate, coal-fired steam) facility with 4 generating units. The
facility first began operations in 1970 and added generating units in
1973, 1976, and 1985. Big Bend supplies cooling water to its once-
through cooling water systems via two intake structures. When the
facility added Unit 4 in 1985, regulators required the facility to
install additional intake technologies. A fish handling and return
system, as well as a fine-mesh traveling screen (used only during
months with potentially high entrainment rates), were installed on the
intake structure serving both the new Unit 4 and the existing Unit 3.
Salem Generating Station. A 2381 MW facility (nameplate, nuclear),
Salem is located on the Delaware River in Lower Alloways Creek
Township, New Jersey. The facility has two generating units, both of
which use once-through cooling and began operations in 1977. In 1995,
the facility installed modified Ristroph screens and a low-pressure
spray wash with a fish return system. The facility also redesigned the
fish return troughs to reduce fish trauma.
Chalk Point Generating Station. Located on the Patuxent River in
Price George's County, Maryland, Chalk Point has a nameplate capacity
of 2647 MW (oil-fired steam). The facility has 4 generating units and
uses a combination of once-through and closed cycle cooling (two once-
through systems serving two generating units and one recirculating
system with a tower serving the other two generating units). In 1983,
the facility installed a barrier net, followed by a second set of
netting in 1985, giving the facility a coarse mesh (1.25") outer net
and a fine mesh (.75") inner net. The barrier nets are anchored to a
series of pilings at the mouth of the intake canal that supplies the
cooling water to the facility and serve to reduce both entrainment and
the volume of trash taken in at the facility.
EPA believes that the technologies used as the basis for today's
proposal are commercially available and economically practicable (see
discussion below) for the industries affected as a whole, and have
negligible non-water quality environmental impacts, including energy
impacts. The proposed option would meet the requirement of section
316(b) of the CWA that the location, design, construction, and capacity
of cooling water intake structures reflect the best technology
available for minimizing adverse environmental impact.
3. Economic Practicability
EPA believes that the requirements of this proposal are
economically practicable. EPA examined the annualized post-tax
compliance costs of the proposed rule as a percentage of annual
revenues to determine whether
[[Page 17145]]
the options are economically practicable. This analysis was conducted
both at the facility and firm levels.
a. Facility Level
EPA examined the annualized post-tax compliance costs of the
proposed rule as a percentage of annual revenues, for each of the 550
facilities subject to this proposed rule. \52\ The revenue estimates
are facility-specific baseline projections from the Integrated Planning
Model (IPM) for 2008 (see Section VIII. Economic Analysis of this
document for a discussion of EPA's analyses using the IPM). The results
of this analysis show that the vast majority of facilities subject to
the proposed rule, 409 out of 550, or approximately 74 percent, would
incur annualized costs of less than 1 percent of revenues. Of these,
331 facilities would incur compliance costs of less than 0.5 percent of
revenues. Eighty-two facilities, or 15 percent, would incur costs of
between 1 and 3 percent of revenues, and 46 facilities, or 8 percent,
would incur costs of greater than 3 percent. Eleven facilities are
estimated to be baseline closures, and for one facility, revenues are
unknown. \53\ Exhibit 2 below summarizes these findings.
---------------------------------------------------------------------------
\52\ EPA's 2000 Section 316(b) Industry Survey identified 539
facilities that are subject to this proposed rule. EPA applied
sample weights to the 539 facilities to account for non-sampled
facilities and facilities that did not respond to the survey. The
539 analyzed facilities represent 550 facilities in the industry.
\53\ IPM revenues for 2008 were not available for 11 facilities
estimated to be baseline closures, 10 facilities not modeled by the
IPM, and 9 facilities projected to have zero baseline revenues. EPA
used facility-specific electricity generation and firm-specific
wholesale prices as reported to the Energy Information
Administration (EIA) to calculate the cost-to-revenue ratio for the
19 non-baseline closure facilities with missing information. The
revenues for one of these facilities remained unknown.
Exhibit 2.--Proposed Rule (Facility Level)
------------------------------------------------------------------------
Percent
Annualized cost-to-revenue ratio All of total
phase II phase II
------------------------------------------------------------------------
0.5%.............................................. 331 60
0.5-1.0%.......................................... 78 14
1.0-3.0%.......................................... 82 15
>3.0%............................................. 46 8
Baseline Closure.................................. 11 2
n/a............................................... 1 0
---------------------
Total........................................... 550 100
------------------------------------------------------------------------
b. Firm Level
Facility-leval compliance costs are low compared to facility-level
revenues. However, the firms owning the facilities subject to the
proposed rule may experience greater impacts if they own more than one
facility with compliance costs. EPA therefore also analyzed the
economic practicability of this proposed rule at the firm level. EPA
identified the domestic parent entity of each in-scope facility and
obtained their sales revenue from publicly available data sources (the
1999 Forms EIA-860A, EIA-860B, and EIA-861; and the Dun and Bradstreet
database) as well as EPA's 2000 Section 316(b) Industry Survey. This
analysis showed that 131 unique domestic parent entities own the
facilities subject to this proposed rule. EPA compared the aggregated
annualized post-tax compliance costs for each facility owned by the 131
parent entities to the firms' total sales revenue. Based on the results
from this analysis, EPA concludes that the proposed rule will be
economically practicable at the firm level.
EPA estimates that the compliance costs will comprise a very low
percentage of firm-level revenues. Of the 131 unique entities, 3 would
incur compliance costs of greater than 3 percent of revenues; 10
entities would incur compliance costs of between 1 and 3 percent of
revenues; 12 entities would incur compliance costs of between 0.5 and 1
percent of revenues; and the remaining 104 entities would incur
compliance costs of less than 0.5 percent of revenues.\54\ The
estimated annualized compliance costs represent between 0.002 and 5.3
percent of the entities' annual sales revenue. Exhibit 3 below
summarizes these findings.
---------------------------------------------------------------------------
\54\ Two entities only own Phase II facilities that are
projected to be baseline closures. EPA estimated that for both
entities, the compliance costs incurred would have been less than
0.5 percent of revenues.
Exhibit 3.--Proposed Rule (Facility Level)
------------------------------------------------------------------------
Number of Percentage
Annualized cost-to-revenue ratio phase II of total
entities phase II
------------------------------------------------------------------------
0.5%............................................. 104 79
0.5-1.0%......................................... 12 9
1.0%-3.0......................................... 10 8
>3.0%............................................ 3 2
Baseline Closures................................ 2 2
----------------------
Total.......................................... 131 100
------------------------------------------------------------------------
c. Additional Impacts
As described in Sections VIII and X.J below, EPA also considered
the potential effects of the proposed rule on installed electric
generation capacity, electrical production, production costs, and
electricity prices. EPA determined that the proposed rule would not
lead to the early retirement of any existing generating capacity, and
would have very small or no energy effects. After considering all of
these factors, EPA concludes that the costs of the proposed rule are
economically practicable.
d. Benefits
As described in Section IX., EPA estimates the annualized benefits
of the proposed rule would be $70.3 million for impingement reductions
and $632.4 million for reduced entrainment. For a more detailed
discussion, also see the Economic and Benefits Analysis for the
Proposed Section 316(b) Phase II Existing Facilities Rule.
4. Site-Specific Determination of Best Technology Available
Under today's proposed rule, the owner or operator of an Phase II
existing facility may demonstrate to the Director that a site-specific
determination of best technology available is appropriate for the
cooling water intake structures at that facility if the owner or
operator can meet one of the two cost tests specified under
Sec. 125.94(c)(1). To be eligible to pursue this approach, the facility
must first demonstrate to the Director either (1) that its costs of
compliance with the applicable performance standards specified in
Sec. 125.94(b) would be significantly greater than the costs considered
by the Administrator in establishing such performance standards, or (2)
that its costs of complying with such standards would be significantly
greater than the environmental benefits at the site.
The proposed factors that may justify a site-specific determination
of the best technology available requirements for Phase II existing
facilities differ in two major ways from those in EPA's recently
promulgated rule for new facilities. First, the new facility rule
required costs to be ``wholly disproportionate'' to the costs EPA
considered when establishing the requirement at issue rather than
``significantly greater'' as proposed today. EPA's record for the Phase
I rule shows that those facilities could technically achieve and
economically afford the requirements of the Phase I rule. New
facilities have greater flexibility than existing facilities in
selecting the location of their intakes and technologies for minimizing
adverse environmental impact so as to avoid potentially high costs.
Therefore, EPA believes it appropriate to push new facilities to a more
stringent economic standard. Additionally, looking at the question in
terms of its national effects on the economy, EPA notes that in
contrast to the Phase I rule, this rule would affect facilities
responsible for a
[[Page 17146]]
significant portion (about 55 percent) of existing electric generating
capacity, whereas the new facility rule only affects a small portion of
electric generating capacity projected to be available in the future
(about 5 percent). EPA believes it is appropriate to set a lower cost
threshold in this rule to avoid economically impracticable impacts on
energy prices, production costs, and energy production that could occur
if large numbers of Phase II existing facilities incurred costs that
are more than significantly greater than but not wholly
disproportionate to the costs in EPA's record. EPA invites comment on
whether a ``significantly greater'' cost test is appropriate for
evaluating requests for alternative requirements by Phase II existing
facilities.
Second, today's proposal includes an opportunity for a facility to
demonstrate significantly greater costs as compared to environmental
benefits at a specific site. As stated above, EPA's record for the
Phase I rule shows that new facilities could technically achieve and
economically afford the requirements of the Phase I rule. At the same
time, EPA was interested in expeditious permitting for these new
facilities, due to increased energy demand, and particular energy
issues facing large portions of the country. For this reason, EPA chose
not to engage in a site-specific analysis of costs and benefits,
because to do this properly would take time. Balancing the desire for
expeditious permitting with a record that supported the achievability
of the Phase I requirements, EPA believes it was reasonable not to
adopt a cost benefit alternative for the Phase I rule. By contrast,
Phase II existing facilities will be able to continue operating under
their existing permits pending receipt of a permit implementing the
Phase II regulations, even where their existing permit has expired
(Permits may be administratively continued under section 558(c) of the
Administrative Procedure Act if the facility has filed a timely
application for a new permit). Therefore, delay in permitting, which
could affect the ability of a new facility to begin operations while
such a site-specific analysis is conducted, is not an issue for
existing facilities. Also, EPA recognizes that Phase II existing
facilities have already been subject to requirements under section
316(b). EPA is not certain that it is necessary to overturn the work
done in making those determinations by necessarily requiring retrofit
of the existing system without allowing facilities and permit
authorities to examine what the associated costs and benefits. Once
again, because today's proposal would affect so many facilities that
are responsible for such a significant portion of the country's
electric generating capacity, EPA is interested in reducing costs where
it can do so without significantly impacting aquatic communities
(recognizing this could increase permitting work loads for the State
and Federal permit writers).
EPA invites comment on whether the standards proposed today might
allow for backsliding by facilities that have technologies or
operational measures in place that are more effective than in today's
proposal. EPA invites comment on approaches EPA might adopt to ensure
that backsliding from more effective technologies does not occur.
If a facility satisfies one of the two cost tests in the proposed
Sec. 125.94(c)(1), it must propose less costly design and construction
technologies, operational measures, and restoration measures to the
extent justified by the significantly greater costs. In some cases the
significantly greater costs may justify a determination that no
additional technologies or measures are appropriate. This would be most
likely in cases where either (1) the monetized benefits at the site
were very small (e.g., a facility with little impingement mortality and
entrainment, even in the calculated baseline), or (2) the costs of
implementing any additional technologies or measures at the site were
unusually high.
5. What Is the Role of Restoration Under Today's Preferred Option?
Under today's preferred option, restoration measures can be
implemented by a facility in lieu of or in combination with reductions
in impingement mortality and entrainment. Thus, should a facility
choose to employ restoration measures rather than reduce impingement
mortality or entrainment, the facility could demonstrate to the
Director that the restoration efforts will maintain the fish and
shellfish in the waterbody, including the community structure and
function, at a level comparable to that which would be achieved through
Sec. 125.94 (b) and (c). In those cases where it is not possible to
quantify restoration measures, the facility may demonstrate that such
restoration measures will maintain fish and shellfish in the waterbody
at a level substantially similar to that which would be achieved under
Sec. 125.94 (b) and (c).
Similarly, should a facility choose to implement restoration
measures in conjunction with reducing impingement mortality and
entrainment through use of design and construction technologies or
operational measures, the facility would demonstrate to the Director
that the control technologies combined with restoration efforts will
maintain the fish and shellfish, including the community structure and
function, in the waterbody at a comparable or substantially similar
level to that which would be achieved through Sec. 125.94 (b) and (c).
EPA invites comment on all aspects of this approach. EPA specifically
invites comment on whether restoration measures should be allowed only
as a supplement to technologies or operational measures. EPA also seeks
comment on the most appropriate spatial scale under which restoration
efforts should be allowed ``should restoration measures be limited to
the waterbody at which a facility's intakes are sited, or should they
be implemented on a broader scale, such as at the watershed or State
boundary level.
Under today's preferred option, any restoration demonstration must
address species of concern identified by the permit director in
consultation with Federal, State, and Tribal fish and wildlife
management agencies that have responsibility for aquatic species
potentially affected by a facility's cooling water intake structure(s).
EPA invites comment on the nature and extent of consultations with
Federal, State, and Tribal fish and wildlife management agencies that
would be appropriate in order to achieve the objectives of section
316(b) of the CWA. In general, EPA believes that consultations should
seek to identify the current status of species of concern located
within the subject waterbody and provide general life history
information for those species, including preferred habitats for all
life stages. Consultations also should include discussion of potential
threats to species of concern found within the waterbody other than
cooling water intake structures (i.e., identify all additional
stressors for the species of concern), appropriate restoration methods,
and monitoring requirements to assess the overall effectiveness of
proposed restoration projects. EPA believes that it is important that
the consultation occur because natural resource management agencies
typically have the most accurate information available and thus are the
most knowledgeable about the status of the aquatic resources they
manage. EPA seeks comment on the type of information that would be
appropriate to include in a written request for consultation submitted
to the State, Tribal, and Federal agencies
[[Page 17147]]
responsible for management of aquatic resources within the waterbody at
which the cooling water intake is sited. A copy of the request and any
agency responses would be included in the permit application.
Under the preferred option, an applicant who wishes to include
restoration measures as part of its demonstration of comparable
performance would submit the following information to the Director for
review and approval:
A list and narrative description of the proposed
restoration measures;
A summary of the combined benefits resulting from
implementation of technology and operational controls and/or
restoration measures and the proportion of the benefits that can be
attributed to these;
A plan for implementing and maintaining the efficacy of
selected restoration measures and supporting documentation that shows
that restoration measures or restoration measures in combination with
control technologies and operational measures will maintain the fish
and shellfish, including community structure, at substantially similar
levels to those specified at Sec. 125.94 (b) and (c);
A summary of any past or voluntary consultation with
appropriate Federal, State, and Tribal fish and wildlife management
agencies related to proposed restoration measures and a copy of any
written comments received as a result of consultations; and
Design and engineering calculations, drawings, and maps
documenting that proposed restoration measures will meet the
performance standard at Sec. 125.94 (d).
EPA believes this information is necessary and sufficient for the
proper evaluation of a restoration plan designed to achieve comparable
performance for species of concern identified by the Director in
consultation with fish and wildlife management agencies. EPA invites
comment on whether this information is appropriate and adequate or if
it should be augmented or streamlined. EPA invites comment on what
specific, additional information should be included in a facility's
restoration plan and/or which of the proposed information requirements
are unnecessary.
For restoration measures such as fish restocking programs, EPA
expects that applicants will be able to quantitatively demonstrate
increases in fish and shellfish that are comparable to the performance
that would be achieved by meeting the performance standards for
reducing impingement and entrainment. However, as it did in the
preamble to the final new facility rule, EPA recognizes that, due to
data and modeling limitations as well as the uncertainty associated
with restoration measures such as creation of new habitats to serve as
spawning or nursery areas, it may be difficult to establish
quantitatively that some restoration measures adequately compensate for
entrainment and impingement losses from cooling water withdrawals. The
success of many approaches to restoration depends on the functions,
behavior, and dynamics of complex biological systems that are often not
scientifically understood as well as engineered technologies.
There are, however, several steps that can be taken to increase the
certainty of attainment of performance levels by restoration measures.
Most of these steps require detailed planning prior to initiation of
restoration efforts. Under today's preferred option, restoration
planners would take care to incorporate allowances in their plans for
the uncertainties stemming from incomplete knowledge of the dynamics
underlying aquatic organism survival and habitat creation. Plans would
include provisions for monitoring and evaluating the performance of
restoration measures over the lifetime of the measures. Provisions
would also be made for mid-course corrections as necessary. Unexpected
natural forces can alter the direction of a restoration project.\55\ If
uncertainty regarding levels of performance is high enough, restoration
planners would consider restoration measures in addition to those
otherwise calculated as sufficient in order to ensure adequate levels
of performance. EPA invites comment on how to measure ``substantially
similar performance'' of restoration measures and methods that can be
used to reduce the uncertainty of restoration activities undertaken as
part of today's preferred option.
---------------------------------------------------------------------------
\55\ For a discussion of the extensive range of experience with
wetland restoration efforts, see Wetlands, Third Edition, William J.
Mitsch and James G. Gosselink, pp. 653-686.
---------------------------------------------------------------------------
EPA recognizes that substantial information exists regarding
wetlands mitigation and restoration. For example, tools and procedures
exist to assess wetlands in the context of section 404 of the Clean
Water Act.\56\ However, restoration of other aquatic systems such as
estuaries is complex and continues to evolve. EPA seeks comment on how
it may measure the success or failure of restoration activities given
the high degree of uncertainty associated with many areas of this
developing science and that many of these activities do not produce
measurable results for many months or years after they are implemented.
For these reasons, EPA requests comment on whether to require that a
facility using restoration measures restore more fish and shellfish
than the number subjected to impingement mortality or entrainment. EPA
believes that restoring or mitigating above the level that reflects
best technology available for minimizing adverse environmental impact
(e.g., restocking higher numbers of fish than those impinged or
entrained by facility intakes or restoring aquatic system acreages at
ratios greater than one-to-one) would help build a margin of safety,
particularly when the uncertainties associated with a particular
restoration activity are known to be high.
---------------------------------------------------------------------------
\56\ For a general discussion on different assessment procedures
see The Process of Selecting a Wetland Assessment Procedure: Steps
and Considerations, by Candy C. Bartoldus, Wetland Journal, Vol. 12,
No. 4, Fall 2000.
---------------------------------------------------------------------------
The concept of compensatory mitigation ratios being greater than
one-to-one is found in other programs. For example, under the CWA
section 404 program no set mitigation ratio exists, however, current
policies require no net loss of aquatic resources on a programmatic
basis. The permitting authority often requires permit applicants to
provide more than one-to-one mitigation on an acreage basis to address
the time lapse between when the permitted destruction of wetlands takes
place and when the newly restored or created wetlands are in place and
ecologically functioning. The permit may also require more than one-to-
one replacement to reflect the fact that mitigation is often only
partially successful. Alternatively, in circumstances where there is a
high confidence that the mitigation will be ecologically successful,
the restoration/creation has already been completed prior to permitted
impacts, or when the replacement wetlands will be of greater ecological
value than those they are replacing, the permitting authority may
require less than one-to-one replacement.
In the case of section 316(b), restocking numbers and restoration
ratios could be established either by the Director on a permit-by-
permit basis or by EPA in the final rule. EPA requests comment on
establishing margins of safety for restoration measures (particularly
for activities associated with outcomes having a high degree of
uncertainty) and identifying the appropriate authority for establishing
safety measures. EPA also seeks comment on an appropriate basis for
[[Page 17148]]
establishing safety margins (e.g., based exclusively on project
uncertainty, relative functional value or rareness of the system being
restored, or a combination of these) to ensure that restoration
measures achieve performance comparable to intake technologies.
EPA also recognizes that restoration measures may in some cases
provide additional environmental benefits that design and construction
technologies and operational measures focused solely on reducing
impingement and entrainment would not provide. For example, fish
restocking facilities may be able to respond, on relatively short
notice, to species-specific needs or threats, as identified by fish and
wildlife management agencies. Habitat restoration measures may provide
important benefits beyond direct effects on fish and shellfish numbers,
such as flood control, habitat for other wildlife species, pollution
reduction, and recreation. EPA requests comment on whether and how
additional environmental benefits should also be considered in
determining appropriate fish and shellfish rates for restoration
projects.
Assessing the full range of requirements necessary for the survival
of aquatic organisms requires understanding and use of knowledge from
multiple scientific disciplines (aquatic biology, hydrology, landscape
ecology) that together address the biological and physical requirements
of particular species. Under today's preferred option, restoration
planners would utilize the full range of disciplines available when
designing restoration measures for a facility. Plans utilizing an
insufficient range of knowledge are more likely to fail to account for
all aquatic organism survival requirements.
For some aquatic organisms, or for certain life stages of some
aquatic organisms, there may not be sufficient knowledge of the factors
required for that organism's survival and thus restoration planners
would be unable to address those factors directly in a restoration
plan. In such cases, it may be necessary for restoration planners to
plan to create habitat that replicates as closely as possible those
habitats in which the aquatic organisms are found to thrive naturally.
Suitable habitat can be created or restored, or existing habitats can
be enhanced in order to provide suitable habitat for the organisms of
concern. In this manner, appropriate conditions can be created even
without full understanding of an organism's requirements. Habitat
approaches also have the benefit, when properly designed, of
simultaneously providing suitable survival conditions for multiple
species. In contrast, measures such as stocking and fish ladders
provide benefits for much more limited number of species and life
stages.
In some cases, conservation of existing, functional habitats--
particularly conservation of habitats that are vulnerable to human
encroachment and other anthropogenic impacts--may be desirable as part
of a facility's restoration effort. In the case of conservation, the
functionality of the habitat would not be compromised, therefore
eliminating much of the uncertainty associated with measuring the
success of other restoration efforts such as habitat enhancement or
creation. However, because conserved habitat is already contributing to
the relative productivity and diversity of an aquatic system,
conservation measures would not necessarily ensure a net benefit to the
waterbody or watershed of concern. EPA seeks comment on whether habitat
conservation would be an appropriate component of a facility's
restoration efforts.
Restoration projects should not unduly compromise the health of
already-existing aquatic organisms in order to restore aquatic
organisms for purposes of section 316(b). Such alterations could negate
or detract from accomplishments under a restoration plan and produce an
insufficient net benefit. For example, fish stocking programs might
introduce disease or weaken the genetic diversity of an ecosystem.
Habitat creation programs should not alter well-functioning habitats to
better support species of concern identified in the restoration plan,
but rather should focus on restoring degraded habitats that
historically supported the types of aquatic organisms currently
impacted by a facility's cooling water intake.
Another issue to consider when relying on restoration projects that
involve habitat creation is that many such projects can take months or
years to reach their full level of performance. The performance of
these projects often relies heavily on establishment and growth of
higher vegetation and of the natural communities that rely on such
vegetation. Establishment and growth of both vegetation and natural
communities can take months to years depending on the type of habitat
under development. Restoration planners need to ensure that performance
levels are met at all points in a mitigation process. Where facilities
are depending in part on habitat creation, this may entail
supplementing habitat creation measures with other restoration measures
during the early stages of habitat creation in order to ensure all
facility impacts are properly mitigated.
Under the preferred option, restoration plans should be developed
in sufficient detail to address the issues above before significant
resources are committed or other actions taken that are difficult to
reverse. EPA invites comment on the role of restoration in addressing
the impact of cooling water intake structures. EPA invites commenters
to suggest alternative approaches to ensuring that restoration efforts
are successful.
6. Impingement and Entrainment Assessments
a. What Are the Minimum Elements of an Impingement Mortality and
Entrainment Characterization Study?
Today's proposal requires the permit applicant to conduct an
Impingement Mortality and Entrainment Characterization Study
Sec. 125.95(b)(3) to support many important analyses and decisions. The
data from this Study supports development of the calculation baseline
for evaluating reductions in impingement mortality and entrainment,
documents current impingement mortality and entrainment, and provides
the basis for evaluating the performance of potential technologies,
operational measures and/or restoration measures. Should a facility
request a site-specific determination of best technology available for
minimizing adverse environmental impact, the Study would provide the
critical biological data for estimating monetized benefits.
EPA invites comment on whether the narrative criteria at
Sec. 125.95(b)(1) are sufficiently comprehensive and specific to ensure
that scientifically valid, representative data are used to support the
various approaches for determining best technology available for
minimizing adverse environmental impact in today's proposal. EPA
recognizes the difficulties in obtaining accurate and precise samples
of aquatic organisms potentially subject to impingement and
entrainment. EPA also recognizes that biological activity in the
vicinity of a cooling water intake structure can vary to great degree,
both within and between years, seasons and intervals including time-of-
day. EPA invites comment on whether it should set specific, minimum
monitoring frequencies and/or whether it should specify requirements
for ensuring appropriate consideration of uncertainty in the
impingement mortality and entrainment estimates.
[[Page 17149]]
b. What Should Be the Minimum Frequencies for Impingement and
Entrainment Compliance Monitoring?
Today's proposal requires compliance monitoring as specified by the
Director in Sec. 125.96, but does not specify minimum sampling
frequencies or durations. EPA is considering specifying minimum
frequencies for impingement and entrainment sampling for determining
compliance. EPA invites comment on including minimum sampling
frequencies and durations as follows: for at least two years following
the initial permit issuance, impingement samples must be collected at
least once per month over a 24 hour period and entrainment samples must
be collected at least biweekly over a 24 hour period during the primary
period of reproduction, larval recruitment and peak abundance. These
samples would need to be collected when the cooling water intake
structure is in operation. Impingement and entrainment samples would be
sufficient in number to give an accurate representation of the annual
and seasonal impingement and entrainment losses for all commercial,
recreational and forage based fish and shellfish species and their life
stages at the Phase II existing facility as identified in the
Impingement Mortality and Entrainment Characterization Study required
under Sec. 125.95(b)(3). Sample sets would be of sufficient size to
adequately address inter-annual variation of impingement and
entrainment losses. Sampling would be planned to eliminate variation in
data due to changes in sampling methods. Data would also be collected
using appropriate quality assurance/quality control procedures.
EPA invites comment on whether more frequent sampling would be
appropriate to accurately assess diel, seasonal, and annual variation
in impingement and entrainment losses. EPA also invites comment on
whether less frequent compliance biological monitoring would be
appropriate (perhaps depending on the technologies selected and
implemented by a facility).
7. How Is Entrainment Mortality and Survival Considered in Determining
Compliance With the Proposed Rule?
Today's proposed rule sets a performance standard for reducing
entrainment rather than reducing entrainment mortality. EPA choose this
approach because EPA does not have sufficient data to establish
performance standards based on entrainment mortality for the
technologies used as the basis for today's proposal. Entrainment
mortality studies can be very difficult to conduct and interpret for
use in decisionmaking (see section VI.A.8.b.below). EPA invites comment
on regulatory approaches that would allow Phase II existing facilities
to incorporate estimates of entrainment mortality and survival when
determining compliance with the applicable performance standards
proposed in Sec. 125.94(b) of today's proposed rule. EPA invites
commenters to submit any studies that document entrainment survival
rates for the technologies used as the basis for today's performance
standards and for other technologies.
8. What Should Be Included in a Demonstration To Compare Benefits to
Costs?
As part of a Site-Specific Determination of Best Technology
Available specified proposed in Sec. 125.94(c) of today's proposed
rule, a Phase II existing facility can attempt to demonstrate to the
Director that the costs of compliance with the applicable performance
standards proposed in Sec. 125.94(b) would be significantly greater
than the benefits of complying with such performance standards at the
site. EPA is considering whether it should develop regulatory
requirements or guidance to outline appropriate methodologies to ensure
that a reliable and objective valuation of benefits is derived from the
best available information. The elements in the benefit assessment
guidance would, at a minimum, include standards for data quality,
acceptable methodologies, technical peer review, and public comment.
a. What Should Be the Appropriate Methodology for Benefits Assessment?
EPA believes that a rigorous environmental and economic analysis
should be performed when a facility seeks a site-specific determination
of best technology available due to significantly greater cost as
compared to the benefits of compliance with the applicable performance
standards. EPA invites comment on which of these methodologies, or any
other, is the most appropriate for determining a fair estimate of the
benefits that would occur should the Phase II existing facility
implement technology to comply with the applicable performance
standards. In addition, EPA invites comment on whether narrative
benefits assessments should supplement these methodologies to properly
account for those benefits which cannot be quantified and monetized.
(1) Quantified and Monetized Baseline Impingement and Entrainment
Losses
To evaluate the total economic impact to fisheries with regard to
impingement and entrainment losses at an existing facility, the impacts
on commercial, recreational, and forage species must be evaluated.
Commercial fishery impacts are relatively easy to value because
commercially caught fish are a commodity with a market price for the
individual species. Recreation fishery impacts are based on benefits
transfer methods, applying the results from nonmarket valuation
studies. Valuing recreational impacts involves the use of willingness-
to-pay values for increases in recreational catch rates. The analysis
of the economic impact of forage species losses can be determined by
estimating the replacement costs of these fish if they were to be
restocked with hatchery fish, or by considering the foregone biomass
production of forage fish resulting from impingement and entrainment
losses and the consequential foregone production of commercial and
recreation species that prey on the forage species. Trophic transfer
efficiency is used to estimate the value of forage fish in terms of the
foregone biomass production and the consequential foregone production
of commercial and recreational species that prey upon them. This
methodology can also incorporate nonuse or passive values. Nonuse or
passive use values include the concepts of existence (stewardship) and
bequest (intergenerational equity) motives to value environmental
changes. In Regulatory Impact Analyses, EPA values nonuse impacts at
50% of value of the recreational use impact. \57\ EPA invites comment
on the inclusion of this approach for estimating nonuse or passive
values. Examples of the use of this method for evaluating benefits are
provided in the Case Study Document.
---------------------------------------------------------------------------
\57\ Fisher, A. and R. Raucher. 1984. Intrinsic benefits of
improved water quality: Conceptual and empirical perspectives.
Advances in Applied Micro-Economics. 3:37-66.
---------------------------------------------------------------------------
EPA notes that in locations where fisheries have been depleted by
cumulative and long term impingement and entrainment losses from
cooling water intake structures, this methodology may not be the most
appropriate as it may have a tendency to underestimate the long term
benefits associated with technology implementation.
(2) Random Utility Model
The Random Utility Model (RUM) estimates the effect of improved
fishing opportunities to determine recreational
[[Page 17150]]
fishing benefits due to reduced impingement and entrainment. The main
assumption of this model is that anglers will get greater satisfaction,
and thus greater economic value, from sites where the catch rate is
higher. When anglers enjoy fishing trips with higher catch rates, they
may take more fishing trips resulting in a greater overall value for
fishing in the region. This method requires information on the
socioeconomic characteristics of anglers and their fishing preference
in terms of location and target species, information on site
characteristics that are important determinants of anglers' behavior,
and the estimated price of visiting the sites. Two models are used for
estimating the total economic value of recreational fish to anglers,
the discrete choice model which focuses on the choice of fishing site
by individual anglers and the trip participation model which estimates
the number of trips that an angler will take annually. A more thorough
description of the RUM can be found in Chapter A10 of the Case Study
Document. Examples of its use are provided in Chapter 5 of the case
studies for Delaware Bay (Part B), Ohio River (Part C) and Tampa Bay
(Part F).
The greatest strength of this model is that it is able to estimate
a theoretically defensible monetary value for recreational fishing
benefits. The weakness in the model is its dependence on the
availability of survey data on angler preferences, and the bias
associated with conducting a survey. This approach is also limited to
estimating recreational benefits only, and should be used in
conjunction with another methodology that values commercial and forage
species impacts and other benefit categories where these are
significant.
(3) Contingent Valuation Approach
Stated preference methods attempt to measure willingness-to-pay
values directly. Unlike the revealed preference methods, such as the
RUM described above, that determine values for environmental goods and
services from observed behavior, stated preference methods rely on data
from surveys that directly question respondents about their preferences
to measure the value of environmental goods and services. Contingent
valuation is one of the most well developed of the stated preference
methods. Contingent valuation surveys either ask respondents if they
would pay a specified amount for a described commodity (usually a
change in environmental quality) or ask their highest willingness-to-
pay for that commodity. For example, in the case of section 316(b), a
contingent valuation survey might ask how much individuals would be
willing to have their electricity bill increase from their utility's
power plants to avoid the impacts of impingement and entrainment on
fish and shellfish, as well as impacts on threatened and endangered
species. One strength of contingent valuation estimates is that they
include the nonuse values such as option, existence, and bequest
values, so adjustments to the estimates to cover these values are not
needed. A weakness of this approach is that respondents are asked to
value a hypothetical good and they do not have to back up their stated
willingness-to-pay with actual expenditures. However, this concern can
be minimized by placing the valuation questions in the context of
familiar economic transactions (e.g., increases in electricity bills).
b. Should Estimates of Entrainment Mortality and Survival Be Included
in Benefits Assessments?
The proposed rule language for Phase II existing facilities does
not preclude the use of estimates of entrainment mortality and survival
when presenting a fair estimation of the monetary benefits achieved
through the installation of the best technology available, instead of
assuming 100 percent entrainment mortality. In EPA's view, estimates of
entrainment mortality and survival used for this purpose should be
based on sound scientific studies. EPA believes such studies should
address times of both full facility capacity and peak abundance of
entrained organisms. EPA requests comment on whether it is appropriate
to allow consideration of entrainment mortality and survival in benefit
estimates, and if so, should EPA set minimum data quality objectives
and standards for a study of entrainment mortality and survival used to
support a site-specific determination of best technology available for
minimizing adverse environmental impact. EPA may decide to specify such
data quality objectives and standards either in the final rule language
or through guidance.
A more thorough discussion of entrainment survival is provided in
Chapter D7 of the EBA. In this chapter, EPA has reviewed a number of
entrainment survival studies (see DCN 2-017A-R7 in Docket W-00-03).
EPA's preliminary review of these studies has raised a number of
concerns regarding the quality of data used to develop some estimates
of entrainment survival. Specifically, the majority of studies reviewed
collected samples at times of low organismal abundance, at times when
the facility was not operating at full capacity, at times when biocides
were not in use, and at times which may not reflect current entrainment
rates at the facility. These sampling conditions may lead to
overestimation of entrainment survival. In addition, the majority of
studies reviewed had very low sample sizes and calculated survival for
only a few of all species entrained. EPA is also concerned that
entrainment survival estimates were based on mortal effects only and
did not address sub-lethal entrainment effects, which can include
changes to organismal growth, development, and reproduction. EPA
invites comment on its preliminary review of the data quality of
entrainment survival studies provided in Chapter D7. EPA also requests
that commenters submit additional entrainment survival or mortality
studies for review.
9. When Could the Director Impose More Stringent Requirements?
Proposed Sec. 125.94(e) provides that the Director could establish
more stringent requirements relating to the location, design,
construction, or capacity of a cooling water intake structure at a
Phase II existing facility than those that would be required based on
the proposed performance standards in the rule (Sec. 125.94(b)), or
based on the proposed site-specific determination of best technology
allowed under the rule (Sec. 125.94(c)), where compliance with the
proposed requirements of Sec. 125.94(b) or (c) would not meet the
requirements of applicable Tribal, State or other Federal law. The
relevant State law may include, but is not necessarily limited to,
State or Tribal water quality standards, including designated uses,
criteria, and antidegradation provisions; endangered or threatened
species or habitat protection provisions; and other resource protection
requirements. The term ``other Federal law'' is intended to denote
Federal laws others than section 316(b), and could include, but not be
limited to, the Endangered Species Act, 16 U.S.C. 1531 et seq., the
Coastal Zone Management Act, 16 U.S.C. 1451 et seq., the Fish and
Wildlife Coordination Act, 16 U.S.C. 661 et seq., the Wild and Scenic
Rivers Act, 16 U.S.C. 1273 et seq., and potentially the Magnuson-
Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq.
See 40 CFR 122.49 for a brief description of these and certain other
laws. Note that these laws may apply to federally issued NPDES permits
independent of this proposed rule.
EPA expects that Federal, State, and Tribal resource protection
agencies will work with Federal and State Directors and permittees to
identify and assess
[[Page 17151]]
situations where Federal, State, or Tribal law might be violated,
particularly where such violations involve impacts to species of
concern. For example, the U.S. Fish and Wildlife Service and the
National Marine Fisheries Service implement the Endangered Species Act.
Where a NPDES permit for a cooling water intake structure would comply
with the performance requirements of Sec. 125.94(b) or (c) but may harm
endangered species or critical habitat, EPA expects the resource
agencies to contribute their expertise to the evaluation and
decisionmaking process.
EPA is considering whether to establish additional criteria for
when the Director could establish more stringent requirements. EPA
requests comment on specifying that more stringent requirements would
be appropriate when compliance with the applicable requirements in
Sec. 125.94(b) and (c) would (1) result in unacceptable effects on
migratory and/or sport or commercial species of concern to the
Director; and (2) not adequately address cumulative impacts caused by
multiple intakes or multiple stressors within the waterbody of concern.
Unacceptable effects on sport or commercial species of concern might
include a significant reduction in one or more such species due to
direct or indirect effects of one or more cooling water intake
structures. Examples of unacceptable effects on migratory species of
concern might include the interference with or disruption of migratory
pathways, patterns, or behavior. Multiple stressors within the
waterbody of concern might include toxics, nutrients, low dissolved
oxygen, habitat loss, non-point source runoff, and pathogen
introductions. EPA is also concerned about the potential stress from
multiple intakes because demonstration studies are typically conducted
on an individual facility basis and do not consider the effects of
multiple intakes on local aquatic organisms.
EPA notes that under section 510 of the CWA, States already have
the authority to establish more stringent conditions in any permit in
accordance with State law. However, this provision does not apply in
cases where EPA is the permitting authority. EPA requests comment on
whether any explicit regulatory provision for more stringent
requirements is needed in light of section 510.
EPA also notes that States have designated many waterbodies for the
propagation of fish and shellfish that are not attaining such uses due
to pollution, and that, in these waters, aquatic communities may be
significantly stressed or under-populated. EPA also believes that in
some waterbodies, heavy fishing pressures have greatly altered and
reduced aquatic communities. EPA anticipates that studies valuing the
monetized benefits of reducing impingement and entrainment may not
identify significant site-specific benefits in such areas and, should
one or more permit applicants request site-specific determinations of
less-costly best technology available for minimizing adverse
environmental impact, a State may not have authority to deny such
requests. EPA requests comment on whether recovery of aquatic
communities in such waterbodies might be delayed by use of the
significantly greater cost-to-benefit test proposed today. EPA requests
comment on an regulatory alternative that would explicitly allow the
Director to require more stringent technologies or measures where not
doing so would delay recovery of an aquatic species or community that
fish and wildlife agencies are taking active measures to restore, such
as imposing significant harvesting restrictions.
10. Discussion of the 5% Flow Threshold in Freshwater Rivers
The withdrawal threshold is based on the concept that, absent any
other controls, withdrawal of a unit volume of water from a waterbody
will result in the entrainment of an equivalent unit of aquatic life
(such as eggs and larval organisms) suspended in that volume of the
water column. This, in turn, is related to the idea that, absent any
controls, the density of aquatic organisms withdrawn by a cooling water
intake structure is equivalent to the density of organisms in the water
column. Thus, if 5% of the mean annual flow is withdrawn, it would
generally result in the entrainment of 5% of the aquatic life within
the area of hydraulic influence of the intake. EPA believes that it is
unacceptable to impact more than 5% of the organisms within the area of
an intake structure. Hence, if the facility withdraws more than 5% of
the mean annual flow of a freshwater river or stream, the facility
would be required to reduce entrainment by 60-90%. EPA discussed these
concepts in more detail and invited comment on the use of this
threshold and supporting documents in its NODA for the New Facility
Rule (66 FR 28863). In today's proposed rule, EPA again invites comment
on use of this threshold for Phase II existing facilities and on the
supporting documents for this threshold that were referenced in the
NODA.
EPA also requests comment on the following alternative withdrawal
thresholds for triggering the requirement for entrainment controls: (1)
5% of the mean flow measured during the spawning season (to be
determined by the average of flows during the spawning season, but
remaining applicable to non-spawning time periods); (2) 10% or 15% of
the mean annual or spawning season flow; (3) 25% of the 7Q10; and (4) a
species-specific flow threshold that would use minimum flow
requirements of a representative species to determine allowable
withdrawals from the waterbody.
11. State or Tribal Alternative Requirements That Achieve Comparable
Environmental Performance to the Regulatory Standards Within a
Watershed
In Sec. 125.90, today's proposal includes an alternative where an
authorized State or Tribe may choose to demonstrate to the
Administrator that it has adopted alternative regulatory requirements
that will result in environmental performance within a watershed that
is comparable to the reductions in impingement mortality and
entrainment that would otherwise be achieved under Sec. 125.94. If a
State or Tribe can successfully make this demonstration, the
Administrator is to approve the State or Tribe's alternative regulatory
requirements.
EPA is proposing that such alternative requirements achieve
comparable performance at the watershed level, rather than at larger
geographic scales or at the individual facility-level, to allow States
and Tribes greater flexibility and, potentially, greater efficiency in
efforts to prevent or compensate for impingement mortality and
entrainment losses, while still coordinating those efforts within
defined ecological boundaries where the increased impacts are directly
offset by controls or restoration efforts. Requiring performance level
assessment to take place at the watershed level ensures that facility
mitigation efforts take the overall health of the waterbody in the
target watershed into account.
The Agency requests comment on all aspects of this approach,
including the appropriate definition of watershed. A watershed is
generally a hydrologically-delineated geographic area, typically the
area that drains to a surface waterbody or that recharges or overlays
ground waters or a combination of both. Watersheds can be defined at a
variety of geographic scales. The United States Geological Survey
(USGS) defines watersheds (hydrologic units) in the United States at
scales ranging from the drainage areas of major rivers, such as
[[Page 17152]]
the Missouri, to small surface drainage basins, combinations of
drainage basins, or distinct hydrologic features. The USGS is currently
defining additional, more detailed subdivisions of currently existing
hydrologic units. (See http://water.usgs.gov/GIS/huc.html.) Watersheds
have been defined for other natural resource programs as well (e.g.,
the Total Maximum Daily Load program, actions under section 306 of the
Coastal Zone Management Act).
In general, the appropriate scale at which to define a watershed
depends on a program's goals. EPA believes that the watershed scale
selected for the purposes of determining comparability of a State or
Tribal alternative requirements should allow confident accounting of
impingement and entrainment levels at facilities within the watershed
and of the results of the actions taken to prevent or compensate for
impingement and entrainment losses. EPA invites comment on use of the
USGS eight-digit hydrologic unit (generally about the size of a county)
as the maximum geographic scale at which an authorized State or Tribe
could establish alternative regulatory requirements. A State or Tribe
could seek to establish the comparability of alternative regulatory
requirements for as many eight-digit hydrologic units as it saw fit,
but would need to demonstrate that its alternative requirements achieve
environmental performance comparable to the performance standards
proposed in today's rule within each such unit.
EPA believes that defining watersheds at too small a scale might
not allow sufficient flexibility. However, EPA is concerned that
defining watersheds at a very large scale increases the potential that
there will be no direct ecological connection between increased impacts
in one area and compensatory efforts in another.
EPA also recognizes that States sometimes assign higher priority to
protecting some waters over others. This may be due to the exceptional
environmental, historic, or cultural value of some waters, or
conversely to a concern with multiple stresses already occurring in a
watershed. It could also be based on the presence of individual species
of particular commercial, recreational, or ecological importance. For
these reasons, States with alternative requirements might choose to
provide more protection that would be achieved under Sec. 125.94 in
some watersheds and less protection in others. Under current language
in proposed Sec. 125.90, States could not use such an approach because
they would not be able to demonstrate comparable environmental
performance within each watershed. EPA requests comment on whether it
should instead allow States to demonstrate comparable environmental
performance at the State level, thus allowing States the flexibility to
focus protection on priority watersheds.
The standard provided in proposed Sec. 125.90 for evaluating
alternate State requirements is ``environmental performance that is
comparable to the reductions that would otherwise be achieved under
Sec. 125.94.'' EPA recognizes that it may not always be possible to
determine precisely the reductions in impingement and entrainment
associated with either Sec. 125.94 or the alternate State requirements,
particularly at the watershed level or State-wide. Furthermore,
alternate State requirements may provide additional environmental
benefits, beyond impingement and entrainment reductions, that the State
may wish to factor into its comparability demonstration. However, in
making this demonstration, the State should make a reasonable effort to
estimate impingement and entrainment reductions that would occur under
Sec. 125.94 and under its alternate requirements, and should clearly
identify any other environmental benefits it is taking into account and
explain how their comparability to impingement and entrainment
reduction under Sec. 125.94 is being evaluated. EPA invites comment on
the most appropriate scale at which to define a watershed to reflect
the variability of the nature of the ecosystems impacted by cooling
water intake structures within a State or Tribal area and on methods
for ensuring ecological comparability within watershed-level
assessments. EPA also invites comment on whether defined watershed
boundaries for the purpose of section 316(b) programs should lie
entirely within the political boundaries of a Tribe or State unless
adjoining States and/or Tribes jointly propose to establish alternative
regulatory requirements for shared watersheds.
12. Comprehensive Cost Evaluation Study
Section 125.94 of today's proposal allows a facility to request a
site-specific determination of best technology available for minimizing
adverse environmental impact based on costs significantly greater than
in EPA's record, or significantly greater than site-specific benefits.
Section 125.95(b)(6)(i) requires a facility seeking such a
determination to conduct a Comprehensive Cost Evaluation Study.
To adequately demonstrate site-specific compliance costs, EPA
believes that a facility would need to provide engineering cost
estimates that are sufficiently detailed to allow review by a third
party. The preferred cost estimating methodology, in the Agency's view,
is the adaption of empirical costs from similar projects tailored to
the facility's characteristics. The submission of generic costs relying
on engineering judgment should be verified with empirical data wherever
possible. In the cases where empirical demonstration costs are not
available, the level of detail should allow the costs to be reproduced
using standard construction engineering unit cost databases. These
costs should be supported by estimates from architectural and
engineering firms. Further, the engineering assumptions forming the
basis of the cost estimates should be clearly documented for the key
cost items.
The Agency and other regulatory entities have reviewed recent cost
estimates submitted by permittees for several section 316(b) and 316(a)
demonstrations. As discussed in Chapter X of the Technical Development
Document, in several cases where the level of detail provided by the
permittee was sufficient to afford a detailed review, EPA has some
concerns about the magnitude of these cost estimates. In other cases,
the engineering assumptions that formed the basis of the cost
submissions were insufficiently documented to afford a critical review.
Based in part on these examples, the Agency emphasizes the importance
of empirically verified and well documented engineering cost
submissions.
The Agency anticipates that the inclusion of a site-specific cost
to benefit test will continue to be of concern to local regulatory
entities and the regulated community in light of the associated burden
on permit writers. In two recent cases, significant burden was
associated with engineering cost reviews. In one case, a regional
authority utilized a significant portion of its annual permitting
budget (over $80,000) and significant man-hours (approximately 500
hours) to review the engineering cost estimates submitted in a single
permit demonstration. In another case, EPA conducted approximately 200
hours of senior-level review of a single engineering estimate that had
already undergone significant, and costly, local regulatory review. In
each of these cases, the reviewers identified areas where they believed
the
[[Page 17153]]
permit applicant had significantly overestimated costs of a potential
compliance option. The level of effort was sufficient to identify the
areas of concern, but not to develop counter proposals for cost
estimates.
However, EPA believes it is important to have a site-specific
option in the rule to cover cases of exceptionally high costs and/or
minimal benefits. By EPA's estimates, the costs for some of the
technologies on which the presumptive performance standards are based
may be several million dollars. In cases where, due to the site-
specific factors, an individual facility's costs are significantly
higher, or the benefits are minimal, the additional permitting burden
hours (upwards of several hundred hours) associated with the site-
specific estimate may be appropriate. EPA anticipates that many, if not
most, facilities will choose to comply with the presumptive standards,
but believes that for those facilities with exceptionally high costs or
exceptionally low benefits, the site-specific provisions provide an
important ``safety valve.''
EPA invites comment on whether the Agency should establish minimum
standards for a Comprehensive Cost Evaluation Study and on whether such
standards should be established by regulation or as guidance only. EPA
also invites comment on the above discussion of the burden that
reviewing site-specific cost studies poses for permitting authorities
and on its belief that site-specific provisions to address cases of
unusually high costs or unusually low benefits are necessary.
13. Cost-Benefit Test
EPA requests comment on the cost-benefit provision in Sec. 124.95.
EPA placed several documents in the docket for the new facilities final
rule (see docket items 2-034A and 2-034B) that summarized information
from several States on the burdens of site-specific decisionmaking. To
make section 316(b) determinations for large power plants in the
Southeast in the late 1970s and early 1980s, EPA estimates a workload
of as much as 650 person hours per permit and $25,000 contract dollars,
with an additional (and potentially larger) resource investment by
State permitting authorities. To reissue a permit to the Salem Nuclear
Generating Station, the New Jersey Department of Environment Protection
recently reviewed and considered a 36-volume permit application
supported by 137 volumes of technical and reference materials. The
facility filed its application in 1994; NJDEP made its decision in
2001. EPA invites comments on these burden estimates.
As noted above, however, while concerned about the burden of site-
specific section 316(b) determinations, EPA also recognizes the much
larger costs of complying with the presumptive performance standards
and believes that some provision for situations where costs are
significantly greater than benefits is appropriate. EPA notes that at
some sites, impingement and entrainment losses are minimal. In such
cases it may not make sense to require a facility to spend a lot of
dollars to comply with presumptive performance requirements. EPA is
also concerned about the potential for members of the public who object
to the authority's site-specific determinations to raise challenges
that must be resolved in administrative appeals that can be very
lengthy and burdensome, followed in some cases by judicial challenges.
An ongoing State study of permitting workloads estimates that appeals
of NPDES permits issued to major facilities require 40 hours to resolve
in a simple case and up to 240 hours for a very complex permit. \58\
EPA Region 1 estimates that one year is required to resolve a complex
administrative appeal, involving significant amounts of technical and
legal resources. Should the permit appeal be followed by a judicial
challenge, EPA Region 1 estimates an additional two years or more of
significant investment of technical and legal resources in one
decision, with additional time and resources needed if the initial
judicial decision is appealed. \59\ Again, however, EPA notes that
these burdens may be small compared to the potential costs of complying
with presumptive performance standards. EPA invites comments on ways to
incorporate site-specific consideration of costs and benefits without
undue burden on the Director. In particular, EPA invites comment on
decision factors and criteria for weighing and balancing these factors
that could be included in a regulation or guidance that would
streamline the workload for evaluating site-specific applications and
minimize the potential for legal challenges.
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\58\ State Water Quality Management Resource Model, ver.3.16 (9/
00). (See Docket for today's proposal.) This is an on-going joint
effort between states and EPA to develop information on the resource
``gap'' facing State water quality management programs. The
information included in the model reflects the consensus of the
participating states and is intended to reflect averages.
\59\ Communication from Mr. Mark Stein, Office of Regional
Counsel, US EPA Region I, Boston, MA, dated January 24, 2002. (See
Docket for today's proposal.)
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14. Capacity Utilization
In Sec. 125.94 (b)(2), the Agency proposes standards for reducing
impingement mortality but not entrainment when a facility operates less
than 15 percent of the available operating time over the course of
several years. Fifteen percent capacity utilization corresponds to
facility operation for roughly 55 days in a year (that is, less than
two months). The Agency refers to this differentiation between
facilities based on their operating time as a capacity utilization cut-
off. The Agency's record demonstrates that facilities operating at
capacity utilization factors of less than 15 percent are generally
facilities of significant age, including the oldest facilities within
the scope of the rule. Frequently, entities will refer to these
facilities as peaker plants, though the definition extends to a broader
range of facilities. These peaker plants are less efficient and more
costly to operate than other facilities. Therefore, operating companies
generally utilize them only when demand is highest and, therefore,
economic conditions are favorable. Because these facilities operate
only a fraction of the time compared to other facilities, such as base-
load plants, the peaking plants achieve sizable flow reductions over
their maximum design annual intake flows. Therefore, the concept of an
entrainment reduction requirement for such facilities does not appear
necessary. Additionally, the plants typically operate during two
specific periods: the extreme winter and the extreme summer demand
periods. Each of these periods can, in some cases, coincide with
periods of abundant aquatic concentrations and/or sensitive spawning
events. However, it is generally accepted that peak winter and summer
periods will not be the most crucial for aquatic organism communities
on a national basis.
Of the facilities exceeding the capacity utilization cut-off, the
median and average capacity utilization is 50 percent. As a general
rule, steam plants operate cyclically between 100 percent load and
standby. In turn, the intake flow rate of a typical steam plant cycles
between full design intake flow and standby. Facilities operating with
an average capacity utilization of 50 percent would generally withdraw
more than three times as much water over the course of time than a
facility with a capacity utilization of less than 15. Therefore, the
capacity utilization cut-off coincides with an approximate flow
reduction, and hence entrainment reduction, of roughly 70 percent as
compared to the average facility above
[[Page 17154]]
the cut-off, which is within the range of the performance standard for
entrainment reduction. Of the 539 facilities for which the Agency has
detailed intake flow information, 53 would fall under the capacity
utilization cut-off. Were the Agency to establish the cut-off at less
than 20 percent capacity utilization, an additional 18 facilities would
be subject to the reduced requirements and the comparable flow
reduction would be roughly 60 percent. However, the operating period
would extend to approximately 75 days (that is, 2.5 months). Were the
Agency to establish the cut-off at less than 25 percent capacity, 108
of the 539 facilities would be subject to the reduced standards, and
the comparable entrainment reduction would be roughly 54 percent. For a
hypothetical 25 percent capacity utilization cut-off, the operating
period would extend to approximately three months.
EPA invites comment on its proposed approach to regulating Phase II
existing facilities with limited capacity utilization. EPA specifically
invites comment on the above alternative thresholds for using capacity
utilization to establish performance standard that address impingement
mortality but not entrainment.
B. Other Technology-Based Options Under Consideration
EPA also considered a number of other technology-based options for
regulating Phase II existing facilities. As in the proposed option, any
technology-based options considered below would allow for voluntary
implementation of restoration measures by facilities that choose to
reduce their intake flow to a level commensurate with performance
requirements. Thus, under these options, facilities would be able to
implement restoration measures that would result in increases in fish
and shellfish if a demonstration of comparable performance is made for
species of concern identified by the Director in consultation with
national, State, and Tribal fish and wildlife management agencies with
responsibility for aquatic resources potentially affected by the
cooling water intake structure.
Similarly, any technology-based options considered also would allow
facilities to request alternative requirements that are less stringent
than those specified, but only if the Director determines that data
specific to the facility indicate that compliance with the relevant
requirement would result in compliance costs significantly greater than
those EPA considered in establishing the requirement at issue, or would
result in significant adverse impacts on local air quality or local
energy markets. The alternative requirement could be no less stringent
than justified by the significantly greater cost or the significant
adverse impacts on local air quality or local energy markets. EPA
invites comment on these provisions and on other factors that might
form the basis for alternative regulations.
The example regulatory language presented in section VI.B.3 below
does not include a provision similar to the 40 CFR 125.85 in the new
facility final rule for alternative requirements based on significant
adverse impact on local water resources other than impingement and
entrainment. In EPA's judgement, this provision would primarily be used
to address water allocation and quantity issues which do not arise in
tidal rivers, estuaries and oceans, where salinity limits competing
water uses.
1. Intake Capacity Commensurate with Closed-Cycle, Recirculating
Cooling System for All Facilities
EPA considered a regulatory option that would require Phase II
existing facilities having a design intake flow 50 MGD or more to
reduce the total design intake flow to a level, at a minimum,
commensurate with that which can be attained by a closed-cycle
recirculating cooling system using minimized make-up and blowdown
flows. In addition, facilities in specified circumstances (e.g.,
located where additional protection is needed due to concerns regarding
threatened, endangered, or protected species or habitat; migratory,
sport or commercial species of concern) would have to select and
implement design and construction technologies to minimize impingement
mortality and entrainment. This option does not distinguish between
facilities on the basis of the waterbody from which they withdraw
cooling water. Rather, it would ensure that the same stringent controls
are the nationally applicable minimum for all waterbody types. This is
the regulatory approach EPA adopted for new facilities.
Reducing the cooling water intake structure's capacity is one of
the most effective means of reducing entrainment (and impingement). For
the traditional steam electric utility industry, facilities located in
freshwater areas that have closed-cycle, recirculating cooling water
systems can, depending on the quality of the make-up water, reduce
water use by 96 to 98 percent from the amount they would use if they
had once-through cooling water systems, though many of these areas
generally contain species that are less susceptible to entrainment.
Steam electric generating facilities that have closed-cycle,
recirculating cooling systems using salt water can reduce water usage
by 70 to 96 percent when make-up and blowdown flows are minimized. \60\
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\60\ The lower range would be appropriate where State water
quality standards limit chloride to a maximum increase of 10 percent
over background and therefore require a 1.1 cycle of concentraction.
The higher range may be attained where cycles of concentration up to
2.0 are used for the design.
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Of the 539 existing steam electric power generating facilities that
EPA believes would potentially be subject to the Phase II existing
facility proposed rule, 73 of these facilities already have a
recirculating wet cooling system (e.g., wet cooling towers or ponds).
These facilities would meet the requirements under this option unless
they are located in areas where the director or fisheries managers
determine that fisheries need additional protection. Therefore, under
this option, 466 steam electric power generating facilities would be
required to meet performance standards for reducing impingement
mortality and entrainment based on a reduction in intake flow to a
level commensurate with that which can be attained by a closed-cycle
recirculating system.
A closed-cycle recirculating cooling system is an available
technology for facilities that currently have once-through cooling
water systems. There are a few examples of existing facilities
converting from one type of cooling system to another (e.g., from once-
through to closed-cycle recirculating cooling system). Converting to a
different type of cooling water system, however, is significantly more
expensive than the technologies on which the proposed performance
standards are based (generally by a factor of 10 or greater) and
significantly more expensive that designing new facilities to run on
recirculating systems. EPA has identified four power plants that would
be regulated by today's proposal that have converted from once-through
to closed-cycle recirculating cooling systems. Three of these
facilities--Palisades Nuclear Plant in Michigan, Jefferies Coal in
South Carolina, and Canadys Steam in South Carolina-- converted from
once-through to closed-cycle recirculating cooling systems after
significant periods of operation utilizing the once-through system. The
fourth facility--Pittsburg Unit 7--is not a full conversion in that it
never operated with its once-through system. In this case, the
``conversion'' occurred just prior to construction, after initial
design of the once-through system design and power plant had
[[Page 17155]]
occurred. A brief description of these conversions follows. The
Technical Development Document for the Proposed Section 316(b) Phase II
Existing Facilities Rule provides additional detail.
The Palisades Nuclear Plant. Located in Covert, Michigan, the
Palisades Nuclear Plant is a 812 MW (nameplate, steam capacity)
facility with a pressurized water reactor, utilizing a mechanical draft
wood cooling tower to condense the steam load of the plant. The reactor
began operation in 1972 utilizing a once-through cooling system and
subsequently converted to a closed-cycle, recirculating system at the
beginning of 1974.
Canadys Steam Plant. This 490 MW (nameplate, steam capacity) coal-
fired facility with three generating units is located in Colleton
County, South Carolina. The first unit initially came online in 1962,
the second in 1964, and the third in 1967. All three units operated
with a once-through cooling water system for many years. The Canadys
Steam plant was converted from a once-through to a closed-cycle
recirculating cooling system in two separate projects. Unit 3 (218 MW)
was first converted in 1972. Units 1 and 2, both with nameplate
capacities of 136 MW, were converted from a once-through to a closed-
cycle, recirculating cooling system in 1992.
Jefferies Coal Units 3 & 4. Located in Moncks Corner, South
Carolina, this facility has a combined, coal-fired capacity of 346 MW
(nameplate, steam). The coal units came online in 1970 and operated for
approximately 15 years utilizing once-through cooling. After the Army
Corps of Engineers re-diverted the Santee Cooper River, thereby
limiting the plant's available water supply, the cooling system was
converted from once-through to recirculating towers. The plant
conducted an empirical energy-penalty study over several years to
determine the economic impact of the cooling system conversion.
Pittsburg Power Plant, Unit 7. Located in Contra Costa County,
California, this 750 MW (nameplate, gas-fired steam) unit was designed
and planned with a once-through cooling water system. However, late in
the construction process, the plant switched to a closed-cycle,
recirculating cooling system with a mechanical draft cooling tower. The
system utilizes the condenser, conduit system, and circulating pumps
originally designed for the once-through cooling water system.
EPA did not select closed-cycle, recirculating cooling systems as
the best technology available for existing facilities because of the
generally high costs of such conversions. According to EPA's cost
estimates, capital costs for individual high-flow plants to convert to
wet towers generally ranged from 130 to 200 million dollars, with
annual operating costs in the range of 4 to 20 million dollars. EPA
estimates that the total annualized post-tax cost of compliance for
this option is approximately $2.26 billion. Not included in this
estimate are 9 facilities that are projected to be baseline closures.
Including compliance costs for these 9 facilities would increase the
total cost of compliance with this option to approximately $2.32
billion. EPA also has serious concerns about the short term energy
implications of a massive concurrent conversion and the potential for
supply disruptions that it would entail. EPA requests comment on its
decision not to base best technology available for all Phase II
existing facilities on closed-cycle, recirculating technology.
The estimated annual benefits (in $2001) for requiring all Phase II
existing facilities to reduce intake capacity commensurate with the use
of closed-cycle, recirculating cooling systems are $83.9 million per
year and $1.08 billion for entrainment reductions.
2. Intake Capacity Commensurate with Closed-Cycle, Recirculating
Cooling Systems Based on Waterbody Type
EPA also considered an alternate technology-based option in which
closed-cycle, recirculating cooling systems would be required for all
facilities on certain waterbody types. Under this option, EPA would
group waterbodies into the same five categories as in today's proposal:
(1) Freshwater rivers or streams, (2) lakes or reservoirs, (3) Great
Lakes, (4) tidal rivers or estuaries; and (5) oceans. Because oceans,
estuaries and tidal rivers contain essential habitat and nursery areas
for the vast majority of commercial and recreational important species
of shell and fin fish, including many species that are subject to
intensive fishing pressures, these waterbody types would require more
stringent controls based on the performance of closed-cycle,
recirculating cooling systems. EPA discussed the susceptibility of
these waters in a Notice of Data Availability (NODA) for the new
facility rule (66 FR 28853, May 25, 2001) and invited comment on
documents that may support its judgment that these waters are
particularly susceptible to adverse impacts from cooling water intake
structures. In addition, the NODA presented information regarding the
low susceptibility of non-tidal freshwater rivers and streams to
impacts from entrainment from cooling water intake structures.
Under this alternative option, facilities that operate at less than
15 percent capacity utilization would, as in the proposed option, only
be required to have impingement control technology. Facilities that
have a closed-cycle, recirculating cooling system would require
additional design and construction technologies to increase the
survival rate of impinged biota or to further reduce the amount of
entrained biota if the intake structure was located within an ocean,
tidal river, or estuary where there are fishery resources of concern to
permitting authorities or fishery managers.
Facilities with cooling water intake structures located in a
freshwater (including rivers and streams, the Great Lakes and other
lakes) would have the same requirements as under the proposed rule. If
a facility chose to comply with Track II, then the facility would have
to demonstrate that alternative technologies would reduce impingement
and entrainment to levels comparable to those that would be achieved
with a closed-loop recirculating system (90% reduction). If such a
facility chose to supplement its alternative technologies with
restoration measures, it would have to demonstrate the same or
substantially similar level of protection. (For additional discussion
see the new facility final rule 66 FR 65256, at 65315 columns 1 and 2.)
EPA has estimated that there are 109 facilities located on oceans,
estuaries, or tidal rivers that do not have a closed cycle
recirculating system and would be required to meet performance
standards for reducing impingement mortality and entrainment based on a
reduction in intake flow to a level commensurate with that which can be
attained by a closed-cycle recirculating system. The other 430
facilities would be required to meet the same performance standards in
today's proposal.
The potential environmental benefits of this option have been
estimated at $87.8 million and $1.24 billion for entrainment reductions
annually. Although this option is estimated (a full cost analysis was
not done for this option) to be less expensive at a national level than
requiring closed-cycle, recirculating cooling systems for all Phase II
existing facilities, EPA is not proposing this option. Facilities
located on oceans, estuaries, and tidal rivers would incur high capital
and operating and maintenance costs for conversions of their cooling
water systems. Furthermore, since impacted facilities would be
concentrated in coastal
[[Page 17156]]
regions, there is the potential for short term energy impacts and
supply disruptions in these areas. EPA also invites comment on this
option.
3. Intake Capacity Commensurate With Closed-Cycle, Recirculating
Cooling System Based on Waterbody Type and Proportion of Waterbody Flow
EPA is also considering a variation on the above approach that
would require only facilities withdrawing very large amounts of water
from an estuary, tidal river, or ocean to reduce their intake capacity
to a level commensurate with that which can be attained by a closed-
cycle, recirculating cooling system.
For example, for facilities with cooling water intake structures
located in a tidal river or estuary, if the intake flow is greater than
1 percent of the source water tidal excursion, then the facility would
have to meet standards for reducing impingement mortality and
entrainment based on the performance of wet cooling towers. These
facilities would have the choice of complying with Track I or Track II
requirements. If a facility on a tidal river or estuary has intake flow
equal to or less than 1 percent of the source water tidal excursion,
the facility would only be required to meet the performance standards
in the proposed rule. These standards are based on the performance of
technologies such as fine mesh screens and traveling screens with well-
designed and operating fish return systems. The more stringent, closed-
cycle, recirculating cooling system based requirements would also apply
to a facility that has a cooling water intake structure located in an
ocean with an intake flow greater than 500 MGD.
Regulatory language implementing the Waterbody Type and Intake
Capacity Based Option could read as follows:
(a)(1) The owner or operator of an existing steam electric power
generating facility must comply with:
(i) The requirements of (b)(1) if your cooling water intake
structure has a utilization rate less than 15 percent;
(i) The requirements of (b)(2) if your cooling water intake
structure withdraws water for use in a closed-cycle, recirculating
system;
(ii) The requirements of (b)(3) if your cooling water intake
structure is located in a freshwater river or stream;
(iii) The requirements of (b)(4) if your cooling water intake
structure is located in a lake (other than one of the Great Lakes)
or reservoir;
(iv) The requirements of (b)(5) or (c) if your cooling water
intake structure is located in an estuary or tidal river;
(v) The requirements of (b)(6) if your cooling water intake
structure is located in one of the Great Lakes;
(vi) The requirements of (b)(7) or (c) if your cooling water
intake structure is located in an ocean.
(2) In addition to meeting the requirements of (b) or (c), the
owner or operator of an existing steam electric power generating
facility must meet any more stringent requirements imposed under
(d).
(b) Track I Requirements. Based on the design characteristics of
your facility and cooling water intake structure(s) you must meet
the requirements of paragraphs (b)(1) through (10).
(1) Requirements for Facilities With a Capacity Utilization
Rates Less Than 15 Percent. If you own or operate an existing
facility with a cooling water intake structure that has a capacity
utilization rate less than 15 percent, you must select and implement
design and construction technologies or operational measures to
reduce impingement mortality by 80 to 95% for fish and shellfish.
(2) Requirements for Cooling Water Intake Structures that
Withdraw Water for Closed-Cycle, Recirculating Systems Only. If you
own or operate a cooling water intake structure that withdraws water
from an estuary, tidal river, or ocean for a closed-cycle,
recirculating system only, you must comply with the requirements in
paragraphs (b)(2)(i) and (ii) as follows:
(i) Impingement Design and Construction Technologies or
Operational Measures. You must select and implement design and
construction technologies or operational measures to minimize
impingement mortality for fish and shellfish if:
(A) There are threatened or endangered or otherwise protected
Federal, State, or Tribal species, or critical habitat for these
species, within the hydraulic zone of influence of the cooling water
intake structure; or
(B) There are migratory and/or sport or commercial species of
impingement concern to the Director or any fishery management
agency(ies), which pass through the hydraulic zone of influence of
the cooling water intake structure; or
(C) It is determined by the Director or any fishery management
agency(ies) that the facility contributes unacceptable stress to the
protected species, critical habitat of those species, or species of
concern.
(ii) Entrainment Design and Construction Technologies or
Operational Measures. You must select and implement design and
construction technologies or operational measures to minimize
entrainment for entrainable life stages of fish and shellfish if:
(A) There are threatened or endangered or otherwise protected
Federal, State, or Tribal species, or critical habitat for these
species, within the hydraulic zone of influence of the cooling water
intake structure; or
(B) There are or would be undesirable cumulative stressors
affecting entrainable life stages of species of concern to the
Director or any fishery management agency(ies), and it is determined
by the Director or any fishery management agency(ies) that the
facility contributes unacceptable stress to these species of
concern.
(3) Requirements for Cooling Water Intake Structures Located in
Freshwater Rivers or Streams. If you own or operate an existing
facility with a cooling water intake structure located in a
freshwater river or stream, you must comply with paragraphs
(b)(3)(i) or (ii) as follows:
(i) If your total design intake flow is equal to or less than 5
percent of the source water annual mean flow, you must select and
implement design and construction technologies or operational
measures to reduce impingement mortality by 80 to 95% for all life
stages of fish and shellfish; or
(ii) If your total design intake flow is greater than 5 percent
of the source water annual mean flow, you must select and implement
design and construction technologies or operational measures to
reduce impingement mortality by 80 to 95% and entrainment by 60 to
90% for all life stages of fish and shellfish.
(4) Requirements for Cooling Water Intake Structures Located in
Lakes (Other Than one of the Great Lakes) or Reservoirs. If you own
or operate an existing facility with a cooling water intake
structure located in a lake (other than one of the Great Lakes) or
reservoir, you must comply with paragraphs (b)(4)(i) and (ii) as
follows:
(i) Your total design intake flow must not disrupt the natural
thermal stratification or turnover pattern (where present) of the
source water except in cases where the disruption is determined to
be beneficial to the management of fisheries for fish and shellfish
by any fisheries management agency(ies); and
(ii) You must select and implement design and construction
technologies or operational measures to reduce impingement mortality
by 80 to 95% for fish and shellfish.
(5) Requirements for Cooling Water Intake Structures Located in
Estuaries or Tidal Rivers. If you own or operate an existing
facility with a cooling water intake structure located in an estuary
or tidal river you must comply with paragraphs (b)(5)(i) or (ii) as
follows:
(i) If your total design intake flow over one tidal cycle of ebb
and flow is equal to or less than one (1) 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, you must select and implement
design and construction technologies or operational measures to
reduce impingement mortality by 80 to 95% and entrainment by 60 to
90% for all life stages of fish and shellfish; or
(ii) If your total design intake flow over one tidal cycle of
ebb and flow is greater than one (1) 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, you must meet the
requirements in paragraphs (b)(5)(ii)(A) or (B):
(A) Reduce your intake flow to a level commensurate with that
which can be attained by a closed-cycle recirculating system and
select and implement design and construction technologies or
operational measures as follows:
(1) Impingement Design and Construction Technologies or
Operational Measures. You must select and implement design and
construction technologies or operational
[[Page 17157]]
measures to minimize impingement mortality for fish and shellfish
if:
(i) There are threatened or endangered or otherwise protected
Federal, State, or Tribal species, or critical habitat for these
species, within the hydraulic zone of influence of the cooling water
intake structure; or
(ii) There are migratory and/or sport or commercial species of
impingement concern to the Director or any fishery management
agency(ies), which pass through the hydraulic zone of influence of
the cooling water intake structure; or
(iii) It is determined by the Director or any fishery management
agency(ies) that the facility contributes unacceptable stress to the
protected species, critical habitat of those species, or species of
concern.
(2) Entrainment Design and Construction Technologies or
Operational Measures. You must select and implement design and
construction technologies or operational measures to minimize
entrainment for entrainable life stages of fish and shellfish if:
(i) There are threatened or endangered or otherwise protected
Federal, State, or Tribal species, or critical habitat for these
species, within the hydraulic zone of influence of the cooling water
intake structure; or
(ii) There are or would be undesirable cumulative stressors
affecting entrainable life stages of species of concern to the
Director or any fishery management agency(ies), and it is determined
by the Director or any fishery management agency(ies) that the
facility contributes unacceptable stress to these species of
concern.
(B) Comply with the requirements of Track II in (c).
(6) Requirements for Cooling Water Intake Structures Located in
One of the Great Lakes. If you own or operate an existing facility
with a cooling water intake structure located in one of the Great
Lakes you must select and implement design and construction
technologies or operational measures to reduce impingement mortality
by 80 to 95% and entrainment by 60 to 90% for all life stages of
fish and shellfish.
(7) Requirements for Cooling Water Intake Structures Located in
an Ocean. If you own or operate an existing facility with a cooling
water intake structure located in an ocean you must comply with
paragraphs (b)(7)(i) or (ii) as follows:
(i) If your total design intake flow is less than 500 MGD, you
must select and implement design and construction technologies or
operational measures to reduce impingement mortality by 80 to 95%
and entrainment by 60 to 90% for all life stages of fish and
shellfish; or
(ii) If your total design intake flow is equal to, or greater
than 500 MGD, you must meet the requirements in paragraphs
(b)(7)(ii)(A) or (B):
(A) Reduce your intake flow to a level commensurate with that
which can be attained by a closed-cycle recirculating system and
select and implement design and construction technologies or
operational measures as follows:
(1) Impingement Design and Construction Technologies or
Operational Measures. You must select and implement design and
construction technologies or operational measures to minimize
impingement mortality for fish and shellfish if:
(i) There are threatened or endangered or otherwise protected
Federal, State, or Tribal species, or critical habitat for these
species, within the hydraulic zone of influence of the cooling water
intake structure; or
(ii) There are migratory and/or sport or commercial species of
impingement concern to the Director or any fishery management
agency(ies), which pass through the hydraulic zone of influence of
the cooling water intake structure; or
(iii) It is determined by the Director or any fishery management
agency(ies) that the facility contributes unacceptable stress to the
protected species, critical habitat of those species, or species of
concern.
(2) Entrainment Design and Construction Technologies or
Operational Measures. You must select and implement design and
construction technologies or operational measures to minimize
entrainment for entrainable life stages of fish and shellfish if:
(i) There are threatened or endangered or otherwise protected
Federal, State, or Tribal species, or critical habitat for these
species, within the hydraulic zone of influence of the cooling water
intake structure; or
(ii) There are or would be undesirable cumulative stressors
affecting entrainable life stages of species of concern to the
Director or any fishery management agency(ies), and it is determined
by the Director or any fishery management agency(ies) that the
facility contributes unacceptable stress to these species of
concern.
(B) Comply with the requirements of Track II in (c).
(8) You must submit the application information required;
(9) You must implement the monitoring requirements specified;
(10) You must implement the record-keeping requirements
specified;
(c) Track II Requirements. If you are an existing steam electric
power generating facility with a cooling water intake structure
located in an estuary, tidal river, or ocean that chooses to meet
the requirements of Track II in lieu of Track I in (b)(5)(ii) or
(b)(7)(ii), you must comply with the following:
(1) You must demonstrate to the Director that the technologies,
operational measures, and supplemental restoration measures employed
will reduce the level of adverse environmental impact from your
cooling water intake structures to a level comparable to that which
you would achieve were you to reduce your intake flow to a level
commensurate with that which can be attained by a closed-cycle
recirculating system.
(2) Except as specified in subparagraph (c)(4) below, your
demonstration must include a showing that the impacts to fish and
shellfish, including important forage and predator species, within
the watershed will be comparable to those which would result if you
were to reduce your intake flow to a level commensurate with that
which can be attained by a closed-cycle recirculating system. This
showing may include consideration of impacts other than impingement
mortality and entrainment.
(3) Restoration Measures. Phase II existing facilities complying
with the requirements of Track II may supplement technologies with
restoration measures that will result in increases in fish and
shellfish if you can demonstrate that they will result in a
comparable performance for species that the Director, in
consultation with national, State and Tribal fishery management
agencies with responsibility for fisheries potentially affected by
your cooling water intake structure, identifies as species of
concern.
(4) In cases where air emissions and/or energy impacts that
would result from reducing your intake flow to a level commensurate
with that which can be attained by a closed-cycle recirculating
system would result in significant adverse impacts on local air
quality, or significant adverse impact on local energy markets, you
may request alternative requirements.
(5) You must submit the application information required;
(6) You must implement the monitoring requirements specified;
(7) You must implement the record-keeping requirements
specified;
EPA notes that of these, some facilities would likely opt to comply
through Track II and estimates that 21 facilities would select this
option. These facilities would perform site-specific studies and
demonstrate compliance using alternative technologies, perhaps
supplemented by habitat enhancement or fishery restocking efforts.
Assuming as a high impact scenario that all 51 of these facilities
install wet cooling towers, the energy impacts associated with these 51
facilities would comprise 0.2 percent of total existing electric
generating capacity from facilities with an intake flow of 50 MGD or
more. The environmental impacts associated with increased air emissions
(SO2, NOX, CO2, and Hg) associated
with this option would be a 0.1 percent increase of emissions of these
pollutants from the total existing electric generators.
The Nuclear Regulatory Commission estimates that a steam-electric
plant utilizing a once-through cooling system would consume
approximately 40 percent less water than a comparably sized plant
equipped with recirculating wet cooling towers because a wet cooling
tower uses a small amount of water many times and evaporates most of
this water to provide its cooling (which can sometimes be seen as a
white vapor plume). In contrast, a once-through cooling system uses a
much larger volume of water, one time. While no cooling water
evaporates directly to the air, once the heated water is discharged
back into the waterbody, some evaporation occurs. Thus, in some areas,
conversion to closed-cycle cooling could raise water quantity issues.
[[Page 17158]]
Based on an analysis of data collected through the detailed
industry questionnaire and the short technical questionnaire, EPA
estimates there are potentially 109 Phase II existing facilities
located on estuaries, tidal rivers, or oceans which may incur capital
cost under this option. Of these 109 facilities, EPA estimates that 51
would exceed the applicable flow threshold and be required to meet
performance standards for reducing impingement mortality and
entrainment based on a reduction in intake flow to a level commensurate
with that which can be attained by a closed-cycle recirculating system.
Of the 58 facilities estimated to fall below the applicable flow
threshold, 10 facilities already meet these performance standards and
would not require any additional controls, whereas 48 facilities would
require entrainment or impingement controls, or both. Because this
option would only require cooling tower-based performance standards for
facilities located on tidal rivers, estuaries or oceans where they
withdraw saline or brackish waters, EPA does not believe that this
option would raise any significant water quantity issues.
Total annualized post-tax cost of compliance for the waterbody/
capacity-based option is approximately $585 million. Not included in
this estimate are 9 facilities that are projected to be baseline
closures. Including compliance costs for these 9 facilities would
increase the total cost of compliance with this option to approximately
$595 million.
EPA also examined the annualized post-tax compliance costs of the
waterbody/capacity-based option as a percentage of annual revenues to
assess the economic practicability of this alternative option. This
analysis was conducted at the facility and firm levels. The revenue
estimates are the same as those used in the analysis in Section VI.A.3
above: facility-specific baseline projections from the Integrated
Planning Model (IPM) for 2008. The results at the facility level are
similar to those of the proposed rule: 355 out of 550 facilities, or 65
percent, would incur annualized costs of less than 0.5 percent of
revenues; 60 facilities would incur costs of between 0.5 and 1 percent
of revenues; 57 facilities would incur costs of between 1 and 3
percent; and 67 facilities would incur costs of greater than 3 percent.
Nine facilities are estimated to be baseline closures, and for one
facility, revenues are unknown. Exhibit 4 below summarizes these
findings.
Exhibit 4.--Waterbody/Capacity-based Option (Facility Level)
------------------------------------------------------------------------
Percent
Annualized cost-to-revenue ratio All of total
phase II phase II
------------------------------------------------------------------------
0.5 %............................................ 355 65
0.5-1.0........................................... 60 11
1.0-3.0%.......................................... 57 10
> 3.0 %........................................... 67 12
Baseline Closure.................................. 9 2
n/a............................................... 1 0
---------------------
Total........................................... 550 100
------------------------------------------------------------------------
Similar to the preferred option, EPA estimates that the compliance
costs for the waterbody/capacity-based option would also be low
compared to firm-level revenues. Of the 131 unique parent entities that
own the facilities subject to this rule, 108 entities would incur
compliance costs of less than 0.5 percent of revenues; 12 entities
would incur compliance costs of between 0.5 and 1 percent of revenues;
6 entities would incur compliance costs of between 1 and 3 percent of
revenues; and three entities would incur compliance costs of greater
than 3 percent of revenues. Two entities only own facilities that are
estimated to be baseline closures. The estimated annualized facility
compliance costs for this option represent between 0.001 and 5.4
percent of the entities' annual sales revenue. Exhibit 5 below
summarizes these findings.
Exhibit 5.--Waterbody/Capacity-based Option (Firm Level)
------------------------------------------------------------------------
Number of Percent
Annualized cost-to-revenue ratio phase II of total
entities phase II
------------------------------------------------------------------------
0.5 %............................................ 108 82
0.5-1.0 %......................................... 12 9
1.0-3.0%.......................................... 6 5
> 3.0 %........................................... 3 2
Baseline Closure.................................. 2 2
---------------------
Total........................................... 131 100
------------------------------------------------------------------------
The results of EPA's approach to estimating national benefits are
$79.86 million per year for impingement reduction and $769.0 million
annually for entrainment reduction. Additional details of EPA's
economic practicability and benefits analysis of this and other options
can be found in the Economic and Benefits Analysis for the Proposed
Section 316(b) Phase II Existing Facilities Rule and the Technical
Development Document for the Proposed Section 316(b) Phase II Existing
Facilities Rule.
While the national costs of this option are lower than those of
requiring wet cooling towers-based performance standard for all
facilities located on oceans, estuaries and tidal rivers, the cost for
facilities to meet these standards could be substantial if they
installed a cooling tower. Under this option, EPA would provide an
opportunity to seek alternative requirements to address locally
significant air quality or energy impacts. EPA notes that the
incremental costs of this option relative to the proposed option ($413
million) significantly outweigh the incremental benefits ($146
million). While EPA is not proposing this option, EPA is considering it
for the final rule. To facilitate informed public comment, EPA has
drafted sample rule language reflecting this option (see above). EPA
invites comment on this alternative technology based option for
establishing best technology available for minimizing adverse
environmental impacts from cooling water intake structures at Phase II
existing facilities.
4. Impingement Mortality and Entrainment Controls Everywhere
Under an additional alternative being considered, EPA would
establish national minimum performance requirements for the location,
design, construction, and capacity of cooling water intake structures
based on the use of design and construction technologies that reduce
impingement and entrainment at all Phase II existing facilities without
regard to waterbody type and with no site-specific compliance option
available. Under this alternative the Agency would set performance
requirements based on the use of design and construction technologies
or operational measures that reduce impingement and entrainment. EPA
would specify a range of impingement mortality and entrainment
reduction that is the same as the performance requirements proposed in
Sec. 125.94(b)(3) (i.e., Phase II existing facilities would be required
to reduce impingement mortality by 80 to 95 percent for fish and
shellfish, and to reduce entrainment by 60 to 90 percent for all life
stages of fish and shellfish). However, unlike the proposed option,
performance requirements under this alternative would apply to all
Phase II existing facilities regardless of the category of waterbody
used for cooling water withdrawals.
Like the proposed option, the percent impingement and entrainment
reduction under this alternative would be relative to the calculation
baseline. Thus, the baseline for assessing performance would be an
existing facility with a shoreline intake with the capacity to support
once-through
[[Page 17159]]
cooling water systems and no impingement or entrainment controls. In
addition, as proposed, a Phase II existing facility could demonstrate
either that it currently meets the performance requirements or that it
would upgrade its facility to meet these requirements. Further, under
this alternative, EPA would set technology-based performance
requirements, but the Agency would not mandate the use of any specific
technology.
Unlike the proposed option, this alternative would not allow for
the development of best technology available on a site-specific basis
(except on a best professional judgment basis). This alternative would
not base requirements on the percent of source water withdrawn or
restrict disruption of the natural thermal stratification of lakes or
reservoirs. It also would impose entrainment performance requirements
on Phase II existing facilities located on freshwater rivers or
streams, and lakes or reservoirs. Finally, under this alternative,
restoration could be used, but only as a supplement to the use of
design and construction technologies or operational measures.
This alternative would establish clear performance-based
requirements that are simpler and easier to implement that those
proposed and are based on the use of available technologies to reduce
adverse environmental impact. Such an alternative would be consistent
with the focus on use of best technology required under section 316(b).
Total annualized post-tax cost of compliance for the modified proposed
option is approximately $191 million. Not included in this estimate are
11 facilities that are projected to be baseline closures. Including
compliance costs for these 11 facilities would increase the total cost
of compliance with this option to approximately $195 million. The
benefits calculated for reduced impingement under this option were
$64.5 million per year; entrainment reduction benefits were estimated
to be $0.65 billion annually.
C. Site-Specific Based Options Under Consideration
1. Sample Site-Specific Rule
EPA also invites comment on site-specific approaches for
determining the best technology available for minimizing adverse
environmental impact at existing facilities. In general, a site-
specific option is a formal process for determining the best technology
available for minimizing adverse environmental impact at particular
facilities that focuses on the site-specific interactions between
cooling water intakes and the affected environment and the costs of
implementing controls. This approach would be based on the view that
the location of each power plant and the associated intake structure
design, construction, and capacity are unique, and that the optimal
combination of measures to reflect best technology available for
minimizing adverse environmental impact must be determined on a case-
by-case basis.
In order to focus public comment, EPA, in consultation with other
interested Federal agencies, has drafted sample regulatory text for a
site-specific approach, which is set forth below. The Site-Specific
Sample Rule omits regulatory text on two key subjects: (1) The
definition of adverse environmental impact; and (2) the components of
the analysis that is used to determine the best technology available
for minimizing adverse environmental impact. Instead, the Sample Rule
contains references to the preamble discussion of these subjects (see
Sec. 125.93, definition of ``adverse environmental impact'' and
Sec. 125.94(b)(2), concerning analysis of the best technology
available). Regulatory text is not offered on these subjects because
the various site-specific approaches described in the discussion
following the Sample Rule deal with them in significantly different
ways.
Site-Specific Alternative: Sample Rule
Sec.
125.90 What are the purpose and scope of this subpart?
125.91 Who is subject to this subpart?
125.92 When must I comply with this subpart?
125.93 What special definitions apply to this subpart?
125.94 As an owner or operator of an existing facility, what must I
do to comply with this subpart?
125.95 As an owner or operator of an existing facility, may I
undertake restoration measures to mitigate adverse environmental
impact?
125.96 Will alternate State requirements and methodologies for
determining the best technology available for minimizing adverse
environmental impact be recognized?
125.97 As an owner or operator of an existing facility, what must I
collect and submit when I apply for my reissued NPDES permit?
125.98 As an owner or operator of an existing facility, must I
perform monitoring?
125.99 As an owner or operator of an existing facility, must I keep
records and report?
125.100 As the Director, what must I do to comply with the
requirements of this subpart?
Section 125.90 What Are the Purpose and Scope of This Subpart?
(a) This subpart establishes requirements that apply to the
location, design, construction, and capacity of cooling water intake
structures at existing facilities that have a design intake flow of
equal to or greater than 50 million gallons per day (MGD). The
purpose of these requirements is to establish the best technology
available for minimizing any adverse environmental impact associated
with the use of cooling water intake structures. These requirements
are implemented through National Pollutant Discharge Elimination
System (NPDES) permits issued under section 402 of the Clean Water
Act (CWA).
(b) This subpart implements section 316(b) of the CWA for
existing facilities that have a design flow of equal to or greater
than 50 MGD. Section 316(b) of the CWA provides that any standard
established pursuant to sections 301 or 306 of the CWA and
applicable to a point source shall require that the location,
design, construction, and capacity of cooling water intake
structures reflect the best technology available for minimizing
adverse environmental impact. The process established in this
subpart for determining the best technology available for intake
design, location, construction, and capacity provides for a case-by-
case determination based on the unique, site-specific interactions
between intakes and the environment and the costs of implementing
controls at existing facilities.
Section 125.91 Who Is Subject to This Subpart?
(a) This subpart applies to an existing facility if it:
(1) Is a point source that uses or proposes to use a cooling
water intake structure;
(2) Has at least one cooling water intake structure that uses at
least 25 percent of the water it withdraws for cooling purposes as
specified in paragraph (c) of this section; and
(3) Has a design intake flow equal to or greater than 50 MGD;
(b) Use of a cooling water intake structure includes obtaining
cooling water by any sort of contract or arrangement with an
independent supplier (or multiple suppliers) of cooling water if the
supplier or suppliers withdraw(s) water from waters of the United
States. Use of cooling water does not include obtaining cooling
water from a public water system or use of treated effluent that
otherwise would be discharged to a water of the U.S. This provision
is intended to prevent circumvention of these requirements by
creating arrangements to receive cooling water from an entity that
is not itself a point source.
(c) The threshold requirement that at least 25 percent of water
withdrawn be used for cooling purposes must be measured on an
average monthly basis.
Section 125.92 When Must I Comply With This Subpart?
You must comply with this subpart when an NPDES permit
containing requirements consistent with this subpart is issued to
you.
[[Page 17160]]
Section 125.93 What Special Definitions Apply to This Subpart?
The definitions in Subpart I of Part 125 apply to this subpart.
The following definitions also apply to this subpart:
Adverse Environmental Impact [Reserved; see discussion at
V.C.5.a below.]
Existing facility means any facility that both generates and
transmits electric power and any facility that generates electric
power but sells it to another entity for transmission. This
definition specifically includes (1) any major modification of a
facility; (2) any addition of a new unit to a facility for purposes
of the same industrial operation; (3) any addition of a unit for
purposes of a different industrial operation that uses an existing
cooling water intake structure but does not increase the design
capacity of the cooling water intake structure; and (4) any facility
that is constructed in place of a facility that has been demolished,
but that uses an existing cooling water intake structure whose
design intake flow has not been increased to accommodate the intake
of additional cooling water.
Section 125.94 How Will Requirements Reflecting Best Technology
Available for Minimizing Adverse Environmental Impact Be Established
for My Existing Facility?
(a)(1) Except as provided in paragraph (a)(2) of this section,
an owner or operator of an existing facility covered by this subpart
must conduct a baseline biological survey and provide any other
information specified in Sec. 125.97 that the Director concludes is
necessary for determining the magnitude of any adverse environmental
impact occurring at the facility.
(2) A previously conducted section 316(b) demonstration may be
used to determine whether the location, design, construction and
capacity of the facility's cooling water intake structure reflect
best technology available for minimizing adverse environmental
impact if it reflects current biological conditions in the water
body and the current location and design of the cooling water intake
structure. A previously conducted section 316(b) demonstration
generally would reflect current conditions or circumstances if:
(i) The previous section 316(b) demonstration used data
collection and analytical methods consistent with guidance or
requirements of the permitting agency and/or the Administrator;
(ii) The available evidence shows that there have been no
significant changes in the populations of critical aquatic species;
and
(iii) The owner or operator can show there have been no
significant changes in the location, design, construction, and
capacity of the facility's cooling water intake structure that would
lead to a greater adverse environmental impact.
(b) The determination of best technology available for
minimizing adverse environmental impact required by paragraph (c) of
this section may be based on:
(1) A previously conducted section 316(b) demonstration that is
shown to be still valid in the current circumstances, as described
in paragraph (a)(2) of this section; or
(2) An analysis of best technology available based on the Design
and Construction Technology Plan, operational measures, and any
restoration measures allowed under Sec. 125.95, that are submitted
pursuant to Sec. 125.97. This analysis may include use of risk
assessment. [See V.C.5.c below for a discussion of possible
additional components of this analysis.]
(c) In determining the best technology available for minimizing
adverse environmental impact at an existing facility, the Director
shall :
(1) Minimize impingement mortality for fish and shellfish;
(2) Minimize entrainment mortality for entrainable life stages
of fish and shellfish;
(3) Take into account non-aquatic environmental impacts,
including energy requirements, and impacts on local air quality or
water resources; and
(4) Not require any technologies for location, design,
construction or capacity or operational and/or restoration measures
the costs of which would be significantly greater than the estimated
benefits of such technology or measures.
(d) The Director may establish more stringent requirements as
best technology available for minimizing adverse environmental
impact if the Director determines that your compliance with the
requirements of paragraph (c) would not ensure compliance with State
or other Federal law.
(e) The owner or operator of an existing facility must comply
with any permit requirements imposed by the Director pursuant to
Sec. 125.100(b) of this section.
Section 125.95 As an Owner or Operator of an Existing Facility, May I
Undertake Restoration Measures To Mitigate Adverse Environmental
Impact?
(a) An owner or operator of an existing facility may undertake
restoration measures (such as habitat improvement and fish stocking)
that will mitigate adverse environmental impact from the facility's
cooling water intake structure.
(b) In determining whether adverse environmental impact is
minimized, the Director must take into account any voluntary
restoration measures.
Section 125.96 Will Alternative State Requirements and Methodologies
for Determining the Best Technology Available for Minimizing Adverse
Environmental Impact Be Recognized?
Notwithstanding any other provisions of this subpart, if a State
demonstrates to the Administrator that it has adopted alternative
regulatory requirements that will result in environmental
performance within a watershed that is comparable to the reductions
of impingement mortality and entrainment that would otherwise be
achieved under this subpart, the Administrator shall approve such
alternative regulatory requirements.
Section 125.97 As an Owner or Operator of an Existing Facility, What
Must I Collect and Submit When I Apply for My Reissued NPDES Permit?
(a) As an owner or operator of an existing facility covered by
this part, you must submit the information required by Sec. 125.94
and this section to the Director when you apply for a reissued NPDES
permit in accordance with 40 CFR 122.21.
(b) Biological Survey. (1) The biological survey must include:
(i) A taxonomic identification and characterization of aquatic
biological resources including a determination and description of
the target populations of concern (those species of fish and
shellfish and all life stages that are most susceptible to
impingement and entrainment), and a description of the abundance and
temporal/spatial characterization of the target populations based on
the collection of a sufficient number of years of data to capture
the seasonal and diel variations (e.g., spawning, feeding and water
column migration) of all life stages of fish and shellfish found in
the vicinity of the cooling water intake structure; and
(ii) An identification of threatened or endangered or otherwise
protected Federal, state or tribal species that might be susceptible
to impingement and entrainment by the cooling water intake
structure(s); and
(iii) A description of additional chemical, water quality, and
other anthropogenic stresses on the source water body based on
available information.
(2) As provided in Sec. 125.94(a)(2) and (d)(1), biological
survey data previously produced to demonstrate compliance with
section 316(b) of the CWA may be used in the biological survey if
the data are representative of current conditions.
(c) Design and Construction Technology Plan. (1) The Design and
Construction Technology Plan must explain the technologies and
measures you have selected to minimize adverse environmental impact
based on information collected for the biological survey.
(2) In-place technologies implemented previously to comply with
section 316(b), and information regarding their effectiveness, may
be included in the Design and Construction Technology Plan for an
existing facility.
(3) Design and engineering calculations, drawings, maps, and
costs estimates supporting the technologies and measures you have
selected to minimize adverse environmental impact.
(d) Operational Measures. Operational measures that may be
proposed include, but are not limited to, seasonal shutdowns or
reductions in flow and continuous operation of screens.
(e) Restoration Measures. If you propose to use restoration
measures to minimize adverse environmental impact as allowed in
Sec. 125.95, you must provide the following information to the
Director for review:
(1) Information and data to show that you have coordinated with
the appropriate fish and wildlife management agency;
(2) A plan that provides a list of the measures you have
selected and will implement and how you will demonstrate that your
restoration measures will maintain the fish and shellfish in the
water body to the level required to offset mortality from
entrainment and impingement; and
(3) Design and engineering calculations, drawings, maps, and
costs estimates
[[Page 17161]]
supporting the proposed restoration measures.
Section 125.98 As an Owner or Operator of an Existing Facility, Must I
Perform Monitoring?
(a) Following issuance of an NPDES permit, an owner or operator
of an existing facility must submit to the Director a program for
monitoring that will be adequate to verify that the location,
design, construction, and capacity of the cooling water intake
structure reflect the best technology available for minimizing
adverse environmental impact.
(b) The Director may require modifications of the monitoring
program proposed by the owner or operator based on, but not limited
to, consideration of the following factors:
(1) Whether or not the facility has been determined to cause
adverse environmental impacts under Sec. 125.100;
(2) The types of modifications and restoration that are required
in the NPDES permit under Sec. 125.100;
(3) The amount and quality of the data or information available
on the water body health and quality of the fishery; and
(4) The stability or flux in the environmental factors that
influence biological response in the water body.
(c) The monitoring program for an existing facility that the
Director has determined is not causing adverse environmental impact
must provide for monitoring sufficient for the Director to make the
subsequent 5-year permit decision.
(d) The monitoring program for an existing facility that the
Director has determined to cause adverse environmental impact must
provide for monitoring sufficient to demonstrate that the
modifications to facility operations and intake technology and any
restoration measures included in the NPDES permit have been
effective for minimizing adverse environmental impact. The
monitoring must begin during the first year following implementation
of the modifications and restoration measures, and must continue
until the Director is satisfied that adverse environmental impact
caused by the facility's cooling water intake has been minimized.
Section 125.99 As an Owner or Operator of an Existing Facility, Must I
Keep Records and Report?
(a) As an owner or operator of an existing facility, you must
keep records of all the data used to complete the permit application
and show compliance with the requirements in the permit and any
compliance monitoring data for a period of at least three (3) years
from the date of permit issuance.
(b) The Director may require that these records be kept for a
longer period.
Section 125.100 As the Director, What Must I Do To Comply With the
Requirements of This Subpart?
(a) Permit Applications. As the Director, you must review
materials submitted by the applicant under 40 CFR 122.21(r)(3) and
Sec. 125.94 before each permit renewal or reissuance.
(1) After receiving the permit application from the owner or
operator of a new facility, the Director must determine if the
applicant is subject to the requirements of this subpart.
(2) For each subsequent permit renewal for a covered facility,
the Director must review the application materials and monitoring
data to determine whether requirements, or additional requirements,
for design and construction technologies or operational measures
should be included in the permit, as provided in paragraph (b) of
this section.
(b) Permitting Requirements. (1) Section 316(b) requirements are
implemented for a facility through an NPDES permit. As the Director,
you must:
(i) Determine whether the location, design, construction and
capacity of the cooling water intake structure at the existing
facility reflects best technology available for minimizing adverse
environmental impact, based on the information provided under
Sec. 125.94(a) and Sec. 125.97 and any other available, relevant
information; and
(ii) If the location, design, construction and capacity of the
cooling water intake structure at the existing facility does not
reflect best technology available for minimizing adverse
environmental impact, specify the requirements and conditions for
the location, design, construction, and capacity of the cooling
water intake structure(s) that must be included in the permit for
minimizing adverse environmental impact. This determination must be
based on information provided under Sec. 125.94 and Sec. 125.97 and
any other available, relevant information.
(2) (i) Before issuing an NPDES permit containing section 316(b)
requirements, the Director must consult with and consider the views
and any information provided by interested fish and wildlife
management agencies.
(ii) If any fish and wildlife management agency having
jurisdiction over the water body used for cooling water withdrawal
determines that the cooling water intake structure(s) of an existing
facility contributes to unacceptable stress to aquatic species or
their habitat, the fish and wildlife management agency may recommend
design, construction, or operational changes to the Director that
will minimize that stress.
(c) Monitoring Requirements. At a minimum, the Director must
ensure that the permit requires the permittee to perform the
monitoring required in Sec. 125.98. You may modify the monitoring
program when the permit is reissued and during the term of the
permit based on changes in the physical or biological conditions in
the vicinity of the cooling water intake structure.
The Agency invites comment on the above framework as an appropriate
approach for implementing section 316(b) as an alternative to today's
proposed requirements. The Agency also invites comments on the
following site-specific approaches for implementing section 316(b) on a
site-specific basis within the general framework set forth in the
Sample Rule.
2. Site-Specific Alternative Based on EPA's 1977 Draft Guidance
Since the Fourth Circuit remanded EPA's section 316(b) regulations
in 1977, decisions implementing section 316(b) have been made on a
case-by-case, site-specific basis. EPA published guidance addressing
section 316(b) implementation in 1977. See Draft Guidance for
Evaluating the Adverse Impact of Cooling Water Intake Structures on the
Aquatic Environment: Section 316(b) P.L. 92-500 (U.S. EPA, 1977). This
guidance describes the studies recommended for evaluating the impact of
cooling water intake structures on the aquatic environment, and it
establishes a basis for determining the best technology available for
minimizing adverse environmental impact. The 1977 Section 316(b) Draft
Guidance states, ``The environmental-intake interactions in question
are highly site-specific and the decision as to best technology
available for intake design, location, construction, and capacity must
be made on a case-by-case basis.'' (Section 316(b) Draft Guidance, U.S.
EPA, 1977, p. 4). This case-by-case approach also is consistent with
the approach described in the 1976 Development Document referenced in
the remanded regulation.
The 1977 Section 316(b) Draft Guidance recommends a general process
for developing information needed to support section 316(b) decisions
and presenting that information to the permitting authority. The
process involves the development of a site-specific study of the
environmental effects associated with each facility that uses one or
more cooling water intake structures, as well as consideration of that
study by the permitting authority in determining whether the facility
must make any changes to minimize adverse environmental impact. Where
adverse environmental impact is occurring and must be minimized by
application of best technology available, the 1977 guidance suggests a
``stepwise'' approach that considers screening systems, size, location,
capacity, and other factors.
Although the Draft Guidance describes the information to be
developed, key factors to be considered, and a process for supporting
section 316(b) determinations, it does not establish national standards
for best technology available to minimize adverse environmental impact.
Rather, the guidance leaves the decisions on the appropriate location,
design, capacity, and construction of each facility to the permitting
authority. Under this framework, the Director determines whether
appropriate studies have been performed and whether a given facility
has minimized adverse environmental impact.
[[Page 17162]]
3. The Utility Water Act Group (UWAG) Approach
The Utility Water Act Group (UWAG), an association of more than 100
individual electric utility companies and three national trade
associations of electric utilities, provided EPA with a recommended
site-specific regulatory framework, entitled ``316(b) Decision
Principles for Existing Facilities.'' UWAG's recommended approach for
decision making under section 316(b) includes the following components:
A definition of ``Adverse Environmental Impact;
Use of Representative Indicator Species (RIS) for the
assessment of adverse environmental impact;
Making decisions under section 316(b) that complement, but
do not duplicate, other Federal, state, and local regulatory programs;
Use of de minimis criteria to exempt small cooling water
users that pose no appreciable risk of causing adverse environmental
impact because only a small amount of cooling water is withdrawn from a
water body at a location that does not require special protection;
Determination of adverse environmental impact or its
absence using the facility's choice of three methods, either alone or
in combination: (1) Use of previously conducted section 316(b)
demonstrations that are still valid in light of current circumstances;
(2) use of ecological risk assessment by means of demonstration of no
appreciable risk of adverse environmental impact using conservative
decision criteria; or assessment of risk using a structured decision
making process consistent with EPA's Ecological Risk Assessment
Guidelines;
A ``maximize net benefits'' approach for selecting the
best technology available for minimizing adverse environmental impact;
At the option of the permittee, recognition of voluntary
enhancements such as fish stocking or habitat improvements; and
Providing data or information with NPDES permit renewal
applications if new information shows that previously conducted section
316(b) demonstrations are no longer scientifically valid.
These features of UWAG's recommended approach are discussed in the
Discussion of Site-Specific Approach Issues and Questions for Comment
that follows. UWAG's submission is included in the rulemaking record.
4. Site-Specific Alternative Suggested by PSEG
EPA also received a suggested site-specific regulatory framework
from the Public Service Electricity and Gas Company (PSEG). The
framework includes three alternative decision-making approaches that
would allow permittees and permit writers to utilize prior analyses and
data that may be appropriate and helpful, consider previous best
technology available determinations that were based on these analyses
and data, and take into account the benefits of prior section 316(b)
implementing actions. The following summary of the framework suggested
by PSEG closely tracks PSEG's submission, which is included in the
rulemaking record.
PSEG's submission states that EPA guidance and other precedents
have identified certain ecological criteria as relevant factors for
considering adverse environmental impact, including entrainment and
impingement; reductions of threatened, endangered, or other protected
species; damage to critical aquatic organisms, including important
elements of the food chain; diminishment of a population's compensatory
reserve; losses to populations, including reductions of indigenous
species populations, commercial fishery stocks, and recreational
fisheries; and stresses to overall communities or ecosystems as
evidenced by reductions in diversity or other changes in system
structure or function. Many existing section 316(b) decisions are based
upon extensive data and analyses pertaining to those factors. Those
factors would remain applicable for all existing facilities.
Under PSEG's recommended approach, permitting authorities would
have the authority to continue to place emphasis on the factors they
believe are most relevant to a given situation. For example, when long-
term data are available that meet appropriate data quality standards,
and when analyses using appropriate techniques such as models that
already have been developed to allow population-level analysis of the
potential for adverse environmental impact, permit writers would focus
on those adverse environmental impact factors related to population-
level impacts. In other situations, especially where permittees do not
wish to invest the time and financial resources necessary for
biological data gathering and analysis, permitting authorities would
have the discretion to focus on other factors by applying different
decision-making paths.
5. Discussion of Site-Specific Approach Issues and Associated Questions
for Comment
The following sections focus on several key aspects of any site-
specific approach, specifically requesting comment on an appropriate
definition of adverse environmental impact and associated decision-
making criteria.
a. Determination of Adverse Environmental Impact
EPA's 1977 Draft Guidance assumes there will be adverse
environmental impact whenever there is entrainment or impingement
``damage'' as a result of a cooling water intake structure, and focuses
study on the magnitude of the impact to determine the appropriate
technologies needed to minimize the impact. The evaluation criteria for
assessing the magnitude of an adverse impact are broad and recommend
consideration both in terms of absolute damage (e.g., numbers of fish)
and percentages of populations. Although the UWAG and PSEG site-
specific approaches contain different definitions of the term ``adverse
environmental impact,'' there is general agreement among them that the
focus should be on the health of critical aquatic populations or
ecosystems, rather than on absolute numbers of fish and other aquatic
organisms impinged or entrained by the cooling water intake structure.
UWAG offered the most detailed and specific recommendations for making
a determination of adverse environmental impact.
(1) EPA's 1977 Definition of Adverse Environmental Impact and Examples
of Its Current Use
In EPA's 1977 Draft Guidance, adverse environmental impact is
defined as follows:
Adverse environmental impact means the adverse aquatic
environmental impact that occurs whenever there will be entrainment
or impingement damage as a result of the operation of a specific
cooling water intake structure. The critical question is the
magnitude of any adverse impact which should be estimated both in
terms of short term and long term impact with respect to (1)
absolute damage (number of fish impinged or percentage of larvae
entrained on a monthly or yearly basis); (2) percentage damage
(percentage of fish or larvae in existing populations which will be
impinged or entrained, respectively); (3) absolute and percentage
damage to any endangered species; (4) absolute and percentage damage
to any critical aquatic organism; (5) absolute and percentage damage
to commercially valuable and/or sport species yield; and (6) whether
the impact would endanger (jeopardize) the protection and
propagation of a balanced population of shellfish and fish
[[Page 17163]]
in and on the body of water from which the cooling water is
withdrawn (long term impact).
Over the past 25 years, permitting agencies have interpreted this
definition in a variety of ways. Some agencies consider the absolute
number of organisms subjected to impingement and entrainment by
facility cooling water intakes. Permitting authorities that evaluate
adverse environmental impact by enumerating losses of numbers of fish
individuals find this approach removes much of the uncertainty
associated with evaluating effects to species at higher organizational
levels such as populations, communities, or ecosystems. Other
permitting authorities have focused on evaluating effects on
populations in determining whether an adverse environmental impact is
occurring.
(2) An Alternative Definition
EPA solicits comment on an alternative definition of ``adverse
environmental impact'' as follows:
Adverse environmental impact means one or more of the following:
entrainment and impingement of significant numbers of a critical
aquatic organisms or percentages of aquatic populations; adverse
impacts to threatened, endangered or other protected species, or
their designated critical habitat; significant losses to
populations, including reductions of indigenous species populations,
commercial fishery stocks, and recreational fisheries; and stresses
to overall communities or ecosystems as evidenced by reductions in
diversity or other changes in system structure or function.
(3) Discussion of UWAG Recommendation for Determining Adverse
Environmental Impact
UWAG offers the following definition:
Adverse environmental impact is a reduction in one or more
representative indicator species (RIS) \61\ that (1) creates an
unacceptable risk to a population'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 operation of the cooling water intake structure.
---------------------------------------------------------------------------
\61\ Drawing on the concept of ``critical aquatic organisms''in
EPA's 1977 draft guidance, UWAG would define a representative
indicator species (RIS) as a species of commercial or recreational
importance, a Federal or state threatened or endangered or specially
designated species, an important species for ecological community
structure or function, or on the basis of species and life stage
vulnerability.
In UWAG's view, defining adverse environmental impact in terms of
``unacceptable risk'' combines science with the judgments society makes
about the value of different resources. UWAG argues that this
recommended definition is scientifically sound and environmentally
protective because it focuses on protecting populations or species that
are subject to impingement and entrainment by cooling water intake
structures and because it requires that the level of population
protection be adequate to ensure protection of the integrity of the
ecosystem (community structure and function). However, it notes that
this definition does not create a ``bright line'' test based on
engineering or science. In addition to use of a valid, previously
conducted section 316(b) demonstration, UWAG would allow facilities to
use two risk assessment approaches to make a demonstration of ``no
adverse environmental impact.'' The first approach involves
demonstrating that the facility meets one or more of a set of
conservative decision criteria. Under the second approach, a facility
would cooperate with regulators and stakeholders to determine the
benchmarks for a risk analysis to determine whether there is an
appreciable risk of adverse environmental impact.
(a) Protective Decision Criteria for Determining Adverse Environmental
Impact
UWAG recommends protective decision criteria that it believes are
conservative enough to eliminate the risk of adverse environmental
impact for all practical purposes. The recommended physical and
biological decision criteria are as follows:
Physical Criteria
Locational Criterion: An existing cooling water intake structure
would be considered not to create a risk of adverse environmental
impact if it withdraws water from a zone of a water body that does not
support aquatic life due to anoxia or other reasons, such as lack of
habitat, poor habitat, or water quality conditions.
Design Criterion: An existing cooling water intake structure would
not be considered to create a risk of adverse environmental impact if
it uses wet closed-cycle cooling or technologies that achieve a level
of protection reasonably consistent with that achieved by wet closed-
cycle cooling. However, wet closed-cycle cooling or reasonably
consistent protection would be considered insufficient if permit
writers or natural resource agencies identify special local
circumstances such as impacts to threatened, endangered, or otherwise
protected species or areas designated for special protection.
Proportion of Flow or Volume Criterion: On fresh water rivers,
lakes (other than the Great Lakes), and reservoirs, a cooling water
intake structure would be considered not to create a risk of adverse
environmental impact if it withdraws no more than 5% of either the
source water body or the ``biological zone of influence.'' This
criterion would apply only to entrainable life stages. Because it might
not be appropriate for many RIS to consider the entire source water
body in making this decision, determining the appropriate flow or
volume would be of critical importance. UWAG recommends how the
``biological zone of influence'' would be determined for different RIS.
Biological Criteria
Percent Population Loss Criterion: On freshwater rivers, lakes
(other than the Great Lakes), and reservoirs, a facility would be
considered not to create a risk of adverse environmental impact if the
cooling water intake structure causes the combined loss, from
entrainment and impingement, of (1) no more than 1% of the population
of any harvested RIS and (2) no more than 5% of the population of any
non-harvested RIS, with fractional losses summed over life stages for
the entire lake, reservoir, or river reach included in the evaluation.
UWAG explains that the 1%/5% population loss criteria are based in part
on the recognition that these percentages are small relative to the
inter-annual fluctuations typical of fish populations and also small
relative to the compensatory responses typical of many species.
No Significant Downward Trend: On freshwater rivers, lakes (other
than the Great Lakes), and reservoirs, a cooling water intake structure
would be considered to create no risk of adverse environmental impact
if adequate data collected over a representative period of years,
including preoperational data, show no statistically significant
downward trend in the population abundance of RIS.
The foregoing criteria would be applied independently. Passing a
single criterion could serve as the basis for a successful
demonstration of no risk of adverse environmental impact for a
facility. If population-based biological criteria are used, they would
be applied independently to each RIS species, and each species would
need to meet the criteria for the facility to demonstrate no risk of
adverse environmental impact.
UWAG states that most of these recommended criteria have
limitations on their use, such as being limited to certain water body
types or to use with either impingeable or entrainable organisms, but
not both. Some facilities, therefore, might use the criteria for only
[[Page 17164]]
some of their RIS and would address the remainder through the
structured adverse environmental impact decision making process
discussed below.
(b) The Structured Adverse Environmental Impact Decision Making
Process Consistent with EPA Ecological Risk Assessment Guidelines
Under this alternative for determining adverse environmental
impact, a facility would work with permit writers, resource managers,
other appropriate technical experts, and stakeholders to determine what
constitutes an ``unacceptable'' risk of adverse environmental impact in
a water body. The process would be based on EPA's 1998 Ecological Risk
Assessment Guidelines. The key steps would be as follows:
Stakeholders would be involved in identifying issues of
concern caused by the cooling water intake structure relative to RIS.
To focus the effort to identify RIS at risk, previous section 316
studies, the results of demonstrations using the criteria discussed
above, information on the design and operation of the facility, water
body fisheries management data and plans, and other relevant water body
information could be used.
The permit writer, with input from the facility, would
then determine what data collection and assessment studies are
necessary to address the RIS of concern. Decisions regarding the scope
of the assessment would include identification of RIS; study design,
sampling methods, locations, and durations; and analytical methods and/
or models to be employed.
The facility and regulators also would identify explicit
measurement endpoints and criteria for assessing adverse environmental
impact before any studies are conducted. If the studies demonstrate
that predetermined endpoints are not exceeded, the intake structure
would be considered not to cause adverse environmental impact. If not,
the facility would proceed to identify best technology available
alternatives or to identify enhancements that would eliminate adverse
environmental impact.
(4) Questions for Comment on the Determination of Adverse Environmental
Impact
(a) EPA invites public comment on all aspects of the foregoing
approaches to defining adverse environmental impact and for making the
preliminary determination on adverse environmental impact, and on which
approach should be included if the Agency adopts a site-specific
approach for the final rule.
(b) Should the final rule adopt the 1977 Draft Guidance approach to
defining adverse environmental impact as any entrainment or impingement
damage caused by a cooling water intake structure?
(c) Should the final rule state that any impingement and
entrainment is an adverse environmental impact and focus site-specific
assessment on whether that impact is minimized by technologies already
in place or potential changes in technology? Alternatively, should the
final rule define adverse environmental impact in terms of population-
level or community-level effects?
(d) Should EPA adopt an approach that makes more explicit use of
threshold determinations of whether adverse environmental impact is
occurring, If so, should EPA adopt any or all of the conservative
decision criteria suggested by UWAG in a final rule?
(e) Should the structured risk assessment decision process that
UWAG recommends for determining adverse environmental impact be
adopted?
b. Use of Previous Section 316(b) Demonstration Studies
The Sample Site-Specific Rule and the PSEG and UWAG approaches
would all give the permittee an opportunity to show that a previously
conducted section 316(b) demonstration study was conducted in
accordance with accepted methods and guidance, reflects current
conditions, and supports decisions regarding the existence of adverse
environmental impact and the best technology available for minimizing
adverse environmental impact.
(1) Sample Site-Specific Rule Approach for Using Previous Demonstration
Studies
Sections 125.94(a)(2) and 125.94(c)(1) of the Sample Rule would
permit use of a previously conducted section 316(b) demonstration if
the previous study was performed using data collection and analytical
methods that conformed to applicable guidance or requirements of the
permitting agency or EPA and there have been no significant changes to
either the aquatic populations affected by the cooling water intake
structure or to the design, construction, or operation of the facility.
The burden would be on the owner or operator of the facility to show
that these conditions were met.
(2) PSEG Recommendation for Using Previous Demonstration Studies
PSEG would permit use of previous section 316(b) determinations
that were based upon analysis deemed to be thorough and based on the
appropriate statutory factors and detailed, site-specific data and
information. In PSEG's view, such prior decisions need not be subject
to a complete re-evaluation in subsequent permit renewal proceedings
absent indications that the current cooling water intake structure is
allowing adverse environmental impacts to occur or that there have been
material changes in any of the key factors the agency relied upon in
reaching the prior determination.
Under PSEG's approach, if a cooling water intake structure at an
existing facility has previously been determined to employ best
technology available based upon a diligent review of a section 316(b)
demonstration that was conducted in conformance with the 1977 EPA
Guidance, then the existing intake would continue to be determined to
employ best technology available for the next permit cycle. The permit
renewal application would have to include information sufficient to
allow the permitting agency to determine that: (1) There has been no
material change in the operation of the facility that would affect
entrainment or impingement; (2) any in-place technologies have been
properly operated, maintained, and are not allowing losses to occur in
excess of the levels the agency considered in its prior determination;
(3) any conservation or mitigation measures included in prior permits
are in place and are producing the intended benefits; (4) the economics
of applying a different technology have not changed; and (5) data and/
or analyses show that fish species of concern are being maintained or
that any declines in those species are not attributable to the cooling
water intake structure.
In the Fact Sheet accompanying the draft permit, the permitting
agency would be required specifically to: (1) Make a finding of fact
that the prior section 316(b) determination had been based upon a
demonstration conducted in conformance with the Agency's 1977 Guidance;
and (2) identify the data and information that the permittee provided
in support of the reaffirmance of its prior section 316(b)
determination. Interested third parties as well as Federal, state and
interstate resource protection agencies (e.g., National Marine
Fisheries Service and the United States Fish and Wildlife Service)
would have an opportunity to comment on the draft section 316(b)
determination and to challenge the final determination if they were
aggrieved by the agency's final decision.
[[Page 17165]]
(3) UWAG Recommendation for Using Previous Demonstration Studies
UWAG also would permit use of a previously conducted section 316
demonstration if the past demonstration reflects current biological
conditions in the water body and the current location, design,
construction, and capacity of the cooling water intake structure. UWAG
argues that many States have developed section 316(b) regulatory
programs with significant information-gathering requirements and that
this information would provide, for many existing facilities, a
sufficient basis for determination of compliance with section 316(b).
More specifically, UWAG's approach would consider (1) Whether the RIS
used in past determinations are still the appropriate ones; (2) whether
the data collection and analytical tools used were adequate in light of
current circumstances; (3) whether water body biological conditions at
the time of the study reflect current conditions; (4) whether the
location, design, construction, or capacity of the cooling water intake
structure has been altered since the previous section 316(b)
demonstration; and (5) other factors that should be considered if there
is reason to believe that the previous demonstrations are inadequate.
(4) Questions for Comment on Using Previous Demonstration Studies
EPA invites public comment on whether a final rule should permit
the use of a previous section 316(b) demonstration for determining
whether there is adverse environmental impact and the best technology
available for minimizing adverse environmental impact. If such a
provision is included in the final rule, what criteria or conditions
should be included to ensure that the previously conducted
demonstration is an adequate basis for section 316(b) decisions?
c. Process for Determining the Best Technology Available for Minimizing
Adverse Environmental Impact and the Role of Costs and Benefits
Once it is determined that there is adverse environmental impact
attributable to a cooling water intake structure, the facility and
permitting agency must decide on a site-specific basis what changes to
the location, design, construction, or capacity of the intake or what
alternative voluntary measures, must be installed and implemented to
minimize the impact.
(1) EPA's Draft 1977 Guidance and Development Document
EPA's draft 1977 draft guidance and development document provide
guidance on how to select best technology for minimizing adverse
environmental impact but are silent on the role of costs and benefits
in determining best technology available for minimizing adverse
environmental impact. In 1979, the U.S. Court of Appeals for the First
Circuit found that cost is an acceptable consideration in section
316(b) determinations. Seacoast Anti-Pollution League v. Costle, 597
F.2d 306, 311 (1st Cir. 1979). Over the years, section 316(b)
determinations have focused on whether the costs of technologies
employed would be wholly disproportionate to the environmental gains to
be derived from their use. See e.g., Seacoast Anti-Pollution League v.
Costle; Decision of the General Counsel No. 63 (July 29, 1977);
Decision of the General Counsel No. 41 (June 1, 1976).
(2) Sample Site-Specific Rule
The Sample Rule would require that the analysis of best technology
available for minimizing adverse environmental impact be based on a
biological survey of the part of the water body affected by the cooling
water intake structure and a Design and Construction Technology Plan
submitted by the permittee, together with any voluntary operational
measures or restoration measures that would be implemented at the
facility. (See Sample Rule Secs. 125.94, 125.95 and 125.97.)
Examples of appropriate technologies a facility could propose in
the Design and Construction Technology Plan include wedgewire screens,
fine mesh screens, fish handling and return systems, barrier nets,
aquatic filter barrier systems, an increase in the opening of the
cooling water intake structure to reduce velocity and, if warranted by
site specific conditions, cooling tower technology. Under the Sample
Rule, in-place technologies implemented previously to comply with
section 316(b), and information regarding their effectiveness, may be
included in the Design and Construction Technology Plan. Operational
measures that may be proposed include seasonal shutdowns or reductions
in flow and continuous operation of screens.
The Sample Rule also would provide that the Director could exclude
any design or construction technology if the costs of such technology
would be significantly greater than the estimated benefits of the
technology (Sec. 125.94(f)(2)).
(3) Processes Structured on Incremental Cost-Benefit Assessment
EPA solicits comment on whether an evaluation of the cost-
effectiveness (i.e., the incremental cost to benefit ratio) of cooling
water intake structure technologies and any operational and/or
restoration measures offered by the owner or operator of a facility is
an appropriate component of the analysis that would be undertaken in a
site-specific approach to determining best technology available for
minimizing adverse environmental impact. The UWAG and PSEG
recommendations for selecting technologies and other measures based on
an evaluation of costs and benefits are discussed below.
(A) UWAG Recommendation for a Process
Under the UWAG approach, if the facility is not able to demonstrate
that its cooling water intake structure is not causing adverse
environmental impact, it would then select and implement the best
technology available. As the first step in choosing best technology
available, a facility would identify technology alternatives. It would
then estimate the costs and benefits of the alternatives. Relevant
benefits typically would include preservation of fish and other aquatic
life and economic benefits from recreational and commercial fisheries.
Relevant costs typically would include the capital cost of constructing
a technology, operation and maintenance costs (including energy
penalties), and adverse environmental effects such as evaporative loss,
salt drift, visible plumes, noise, or land use. For those facilities
for which the technologies will lower the generating output of the
facility, the cost of replacement power and the environmental effects
of increased air pollution and waste generation from generating the
replacement power also would be considered.
Facilities then would calculate the net benefits for each
technology and rank them by cost-effectiveness. Those with marginal
costs greater than marginal benefits would be rejected. The technology
with the greatest net benefit would be the ``best'' technology for the
site. UWAG believes use of existing EPA cost-benefit calculation
methodologies, such as those used for natural resource damage valuation
under CERCLA and under NEPA would be sufficient.
(B) PSEG Recommendation for a Process
PSEG suggests two options for determining best technology available
where prior section 316(b) determinations were not based upon
[[Page 17166]]
data and analyses sufficient to allow a permittee to seek renewal.
Under the first option, the permittee would provide the permit
writer with an assessment that would address: (1) The alternative
technologies or other measures that are available for addressing the
cooling water intake structure's effects, and (2) the incremental costs
and benefits of alternative technologies or other measures relative to
the existing cooling water intake structure's operation. The
application would include: an engineering report identifying the suite
of technologies potentially applicable to the facility; an analysis
describing the bases for the selection of technologies applicable to
the facility; an assessment of the issues associated with retrofitting
the facility to include each of the applicable technologies and their
costs; and an assessment of the reasonably likely reductions in
entrainment and impingement losses that would be achieved if the
facility were to be retrofitted to operate with the technology. The
application also would include a cost-benefit analysis that would
address and assess: the effects of the reductions in entrainment and
impingement losses on life stages of the species for which an economic
value can be determined utilizing readily available information, such
as market values of commercial species, and recreational costs based on
methods determined to be appropriate by the Director and the
appropriate fisheries management agencies. The Director would then
select the best alternative technology or other measures, the costs of
which are not wholly disproportionate to the benefits, unless the
proposed technology or other measures clearly would not result in any
substantial improvement to the species of concern.
In evaluating the benefits of alternative technologies, and in
determining whether there is likely to be a substantial improvement to
the species of concern, permittees and permitting authorities would
undertake the level of biological analysis that was appropriate to the
situation, supported by the applicable data, and commensurate with the
resources available for developing and reviewing the necessary studies.
PSEG's second option would be appropriate where the permittee
elects to undertake an in-depth analysis of the potential adverse
environmental impact attributable to its cooling water intake
structure, followed by a site-specific determination of the appropriate
best technology available to minimize that adverse environmental
impact. This path represents the most resource-intensive and
scientifically rigorous approach to implementing section 316(b). Under
this option, the permittee would provide the permit writer with a
detailed assessment that evaluates the effects of the existing cooling
water intake structure's operation, and demonstrates the extent to
which the operation may be jeopardizing the sustainability of the
populations of the species of concern, or assesses other appropriate
factors for determining adverse environmental impact. If the permitting
agency concurs in an assessment that no adverse environmental impact is
being caused by the existing operation, then the existing cooling water
intake structure would be deemed to be best technology available. If
the assessment demonstrates that the cooling water intake structure is
causing adverse environmental impact or the permitting authority
rejects the applicant's determination, then the permit applicant would
proceed to evaluate alternative technologies or other measures.
(4) Questions for Comment on a Process for Determining the Best
Technology Available for Minimizing Adverse Environmental Impact and
the Role of Costs and Benefits
EPA invites public comment on the standard that would be included
in any site-specific final rule for determining best technology
available for minimizing adverse environmental impact, including the
appropriate role for a consideration of costs and benefits. EPA invites
comment on whether the long-standing ``wholly disproportionate'' cost-
to-benefit test is an appropriate measure of costs and benefits in
determining best technology available for minimizing adverse
environmental impact. EPA also invites comment on the use of the
``significantly-greater'' cost to benefit test in today's sample site-
specific rule. EPA also invites comment on whether a test based on the
concept that benefits should justify costs would be more appropriate,
as is used in various other legal and regulatory contexts (see, e.g.,
Safe Drinking Water Act Section 1412(b)(6)(A) and Executive Order
12866, Section 1(b)(6)). EPA also invites public comment on whether
variances are appropriate and, if so, what test or tests should be used
for granting a variance.
d. Use of Voluntary Restoration Measures or Enhancements
The Sample Site-Specific Rule and the UWAG and PSEG approaches
would all permit the owner or operator of an existing facility to
voluntarily undertake restoration (or enhancement) measures in
combination with, or in lieu of, technologies to minimize adverse
environmental impact.
Section 125.95 of the Sample Rule provides that an owner or
operator of an existing facility may undertake restoration measures,
and the Director would be required to take into account the expected
benefits of those measures to fish and shellfish in determining whether
the facility has minimized adverse environmental impact. The permittee
would include in its section 316(b) plan a list of the measures it
proposed to implement and the methods for evaluating the effectiveness
of the restoration measures.
UWAG gives the following as examples of potential enhancements: (1)
Stocking fish to replace impaired RIS; (2) creating or restoring
spawning or nursery habitat for RIS; (3) raising the dissolved oxygen
in anoxic areas to expand the carrying capacity of the RIS in a water
body; and (4) removing obstructions to migratory species. UWAG would
require the objectives of particular enhancements to be established in
advance, and appropriate monitoring and/or reporting obligations would
be included in the facility's permit to confirm that enhancement
objectives have been achieved. UWAG argues that using enhancements
might lower compliance costs, might possibly be of more benefit to RIS
than technologies, and might provide a longer-term benefit to RIS.
EPA invites public comment on whether a final site-specific rule
should permit voluntary restoration or enhancement measures to be taken
into account in determining compliance with section 316(b) and, if so,
what criteria should be included for evaluating the effectiveness of
such measures.
e. Consultation With Fish and Wildlife Management Agencies
Because the central focus of any site-specific approach is the
effect of the cooling water intake structure on the aquatic populations
or ecosystems, it is important that fish and wildlife management
agencies with jurisdiction over the affected water body have an
opportunity to provide information and views to the Director before
section 316(b) determinations are made. The Sample Rule would provide
for this in Sec. 125.100(b)(2). The UWAG recommendations also recognize
the important role of stakeholders, including fish and wildlife
management
[[Page 17167]]
agencies, in a structured site-specific alternative (UWAG, pp. 8-9).
EPA invites public comment on the appropriate role of fish and
wildlife management agencies if the final rule implements a site-
specific approach.
6. Implementation Burden Under Any Site-Specific Approach
Although well-implemented, site-specific approaches for determining
best technology available to minimize adverse environmental impact can
ensure that technologies are carefully tailored to site-specific
environmental needs, EPA also recognizes that site-specific regulatory
approaches can lead to difficult implementation challenges for State
and Federal permitting agencies. EPA invites comment on the following
discussion of the burdens associated with implementing section 316(b)
on a site-specific basis, the competing demands on permitting agencies,
and resources available to permitting agencies. EPA invites comment on
ways to employ a site-specific approach while minimizing implementation
burdens on permitting agencies.
The site-specific decision-making process requires each regulated
facility to develop, submit, and refine studies that characterize or
estimate potential adverse environmental impact. Although some
approaches allow facilities to use existing studies in renewal
applications, States must still conduct evaluations to ascertain the
continued validity of these studies and assess existing conditions in
the water body. Such studies can be resource intensive and require the
support of a multidisciplinary team. A Director's determinations as to
whether the appropriate studies have been performed and whether a given
facility has minimized adverse environmental impact have often been
subject to challenges that can take significant periods of time to
resolve and can impose significant resource demands on permitting
agencies, the public, and the permit applicant.
Some examples of the workload that can be required for permitting
agencies to implement a site-specific approach follow. Since, 1999, EPA
New England has devoted 0.6 full-time employees a year, including a
permit writer, a biologist and attorney, to reissuance of a permit for
the Pilgrim Nuclear Power Station (PNPS), \62\ At the Seabrook Nuclear
Power Station, EPA Region I has invested about one full-time employee
per year over four years to determine the nature and degree of adverse
environmental impacts and the appropriate permit conditions the permit
renewal. The State of New York Department of Environmental
Conservation's Division of Fish, Wildlife and Marine Resources spent
$169,587 in 1997 and $167,564 in 1998 to review cooling systems at
steam-motivated electricity generating facilities. The Division
estimated a total effort expenditure of approximately 2.2 full-time
employees in 1997 and 1998 and 4.3 full-time employees for 2001. These
figures do not include the level of effort associated with review time
spent by the Division of Environmental Permits, the Division of Water,
or the Division of Legal Affairs. (See Docket W-00-03.) Because of
workload concerns, some States have requested that EPA adopt
regulations that set clear requirements specifying standards of
performance, monitoring and compliance. \63\
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\62\ Information provided by EPA Region I. Region I serves as
permitting authority for the non-delegated states of Massachusetts
and New Hampshire.
\63\ See communications from Mr. William McCracken, Chief of the
Permits Section, Surface Water Quality Division, Michigan Department
of Environmental Quality, January 24, 2002.
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These levels of burden are of particular concern to the Agency and
to some State permitting agencies given the heavy permit workloads,
pressure on resources available to permitting agencies, and the
complexity of finalizing permits required to address 316(b)
requirements. Recent data indicate that most States are struggling to
meet their major permits issuance targets set for decreasing the permit
backlog. For example, these data indicate that for major facilities
engaged in the generation, transmission and/or distribution of electric
energy for sale (SIC 4911), the permit backlog is 30.3 percent \64\,
that is, higher than other categories of major permits (data indicate a
backlog of 23.1 percent for major permits in general), \65\ In 1998,
the EPA Office of Inspector General identified the backlog in issuance
of National Pollutant Discharge Elimination System permits as a
material weakness pursuant to the Federal Managers' Financial Integrity
Act (FMFIA). As part of its Fiscal Year 2001 FMFIA Report, EPA
recommended that the permit backlog be identified as a continuing
material weaknesses in its programs. EPA's Office of Water is examining
strategies to correct this weakness. \66\ The evidence does not,
however, establish that section 316(b) determinations are a factor in
the backlog in issuance of National Pollutant Discharge Elimination
System permits.
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\64\ Backlog counts for these facilities are based on permits
expired as of November 21, 2001 or if the permit expired field in
the database is blank.
\65\ NPDES Permit Backlog Trend Report: October 31, 2001, issued
on November 30, 2001 by EPA's Water Permits Division, US EPA,
Washington, DC.
\66\Decision Memorandum from the Deputy Chief Financial Officer
of EPA to the Administrator, December 18, 2001.
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EPA is also aware that resources available to State permitting
agencies are limited. In a recent survey conducted by ECOS
(Environmental Council of States) \67\ on States environmental agency
budget reductions during the current fiscal year and for the upcoming
fiscal year, 42 States reported that their agency was asked to cut or
reduce their budgets for the current fiscal year. \68\ For the
following fiscal year, 23 of the responding States expected additional
budget cuts. EPA is aware that at least one State, the State of
Maryland, has used State law to impose a small surcharge on electric
bills in the State to support a State research program, and that funds
from that program are used for section 316(b) studies.
---------------------------------------------------------------------------
\67\ The Environmental Council Of States is a national non-
profit association of state and territorial environmental
commissioners. See website: www.sso.org/ecos/. When the Axe Falls:
How State Environmental Agencies Deal with Budget Cuts by R. Steven
Brown, Deputy Executive Director and Chief Operating Officer of
ECOS. (See Docket for today's proposed rule.)
\68\ This state budget outlook is supported by a report
published on October 31, 2001, by the National Conference of State
Legislatures (NCSL).
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EPA seeks additional information and data on the resources
necessary and available for the review of section 316(b) determinations
in existing facilities' permit renewals.
EPA invites comment on whether the resource requirements of the
site-specific approach also have served as a disincentive to a
comprehensive revisiting of section 316(b) permit conditions during
each renewal (typically every 5 years), despite advances in
technologies for reducing impingement mortality and entrainment.
EPA seeks comment on the above discussion of the resource
implications of implementing the requirements of section 316(b) on a
case-by-case basis. EPA invites comment on how the workload of a site-
specific approach could be streamlined so as to provide for the
benefits of a site-specific approach (e.g., application of technologies
specifically tailored to site-specific conditions) while recognizing
the resource constraints faced by so many permitting agencies.
[[Page 17168]]
D. Why EPA Is Not Considering Dry Cooling Anywhere?
EPA conducted a full analysis for the new facility rule (Phase I)
and rejected dry cooling as an economically practicable option on a
national basis. Dry cooling systems use either a natural or a
mechanical air draft to transfer heat from condenser tubes to air. In
conventional closed-cycle recirculating wet cooling towers, cooling
water that has been used to cool the condensers is pumped to the top of
a recirculating cooling tower; as the heated water falls, it cools
through an evaporative process and warm, moist air rises out of the
tower, often creating a vapor plume. Hybrid wet-dry cooling towers
employ both a wet section and dry section and reduce or eliminate the
visible plumes associated with wet cooling towers.
For the new facility rule, EPA evaluated zero or nearly zero intake
flow regulatory alternatives, based on the use of dry cooling systems.
EPA determined that the annual compliance cost to industry for this
option would be at least $490 million. EPA based the costs on 121
facilities having to install dry cooling. The cost for Phase II
existing facilities would be significantly higher. EPA estimates that
539 Phase II existing facilities would be subject to this proposal. The
cost would be significantly higher because existing facilities have
less flexibility, thus incurring higher compliance costs (capital and
operating) than new facilities. For example, existing facilities might
need to upgrade or modify existing turbines, condensers, and/or cooling
water conduit systems, which typically imposes greater costs than use
of the same technology at a new facility. In addition, retrofitting a
dry cooling tower at an existing facility would require shutdown
periods during which the facility would lose both production and
revenues, and decrease the thermal efficiency of an electric generating
facility.
The disparity in costs and operating efficiency of dry cooling
systems compared with wet cooling systems is considerable when viewed
on a nationwide or regional basis. For example, under a uniform
national requirement based on dry cooling, facilities in the southern
regions of the U.S. would be at an unfair competitive disadvantage
compared to those in cooler northern climates. Even under a regional
subcategorization strategy for facilities in cool climatic regions of
the U.S., adoption of a minimum requirement based on dry cooling could
impose unfair competitive restrictions for steam electric power
generating facilities. This relates primarily to the elevated capital
and operating costs associated with dry cooling. Adoption of
requirements based on dry cooling for a subcategory of facilities under
a particular capacity would pose similar competitive disadvantages for
those facilities.
EPA does not consider dry cooling a reasonable option for a
national requirement, nor for subcategorization under this proposal,
because the technology of dry cooling carries costs that are sufficient
to cause significant closures for Phase II existing facilities. Dry
cooling technology would also have a significant detrimental effect on
electricity production by reducing energy efficiency of steam turbines.
Unlike a new facility that can use direct dry cooling, an existing
facility that retrofits for dry cooling would most likely use indirect
dry cooling which is much less efficient than direct dry cooling. In
contrast to direct dry cooling, indirect dry cooling does not operate
as an air-cooled condenser. In other words, the steam is not condensed
within the structure of the dry cooling tower, but instead indirectly
through an indirect heat exchanger. Therefore, the indirect dry cooling
system would need to overcome additional heat resistance in the shell
of the condenser compared to the direct dry cooling system. Ultimately,
the inefficiency penalties of indirect dry cooling systems will exceed
those of direct dry cooling systems in all cases.
Although the dry cooling option is extremely effective at reducing
impingement and entrainment and would yield annual benefits of $138.2
million for impingement reductions and $1.33 billion for entrainment
reductions, it does so at a cost that would be unacceptable. EPA
recognizes that dry cooling technology uses extremely low-level or no
cooling water intake, thereby reducing impingement and entrainment of
organisms to dramatically low levels. However, EPA interprets the use
of the word ``minimize'' in section 316(b) in a manner that allows EPA
the discretion to consider technologies that very effectively reduce,
but do not completely eliminate, impingement and entrainment and
therefore meet the requirements of section 316(b). Although EPA has
rejected dry cooling technology as a national minimum requirement, EPA
does not intend to restrict the use of dry cooling or to dispute that
dry cooling may be the appropriate cooling technology for some
facilities. For example, facilities that are repowering and replacing
the entire infrastructure of the facility may find that dry cooling is
an acceptable technology in some cases. A State may choose to use its
own authorities to require dry cooling in areas where the State finds
its fishery resources need additional protection above the levels
provided by these technology-based minimum standards.
E. What Is the Role of Restoration and Trading?
1. Restoration Measures
Restoration measures, as used in the context of section 316(b)
determinations, include practices that seek to conserve fish or aquatic
organisms, compensate for lost fish or aquatic organisms, or increase
or enhance available aquatic habitat used by any life stages of
entrained or impinged species. Such measures have been employed in some
cases in the past as one of several means of fulfilling the
requirements imposed by section 316(b). Examples of restoration
measures that have been included as conditions of permits include
creating, enhancing, or restoring wetlands; developing or operating
fish hatcheries or fish stocking programs; removing impediments to fish
migration; and other projects designed to replace fish or restore
habitat valuable to aquatic organisms. Restoration measures have been
used, however, on an inconsistent and somewhat limited basis in the
context of the 316(b) program. Their role under section 316(b) has
never been explicitly addressed in EPA regulations or guidance until
EPA promulgated the final section 316(b) regulations for new
facilities, which is discussed below in more detail. Prior to the
section 316(b) new facility regulations, restoration projects were
undertaken as part of section 316(b) determinations at Phase II
existing facilities and in permitting actions where the cost of the
proposed technology was considered to be wholly disproportionate to the
demonstrated environmental benefits that could be achieved. Often such
cases involved situations where retrofitting with a technology such as
cooling towers was under consideration. In addition to the role for
restoration outlined as part of the today's proposed rule (see Section
VI.A. above), EPA invites comment on the following alternatives for
restoration as part of regulations for Phase II existing facilities.
a. The Role of Restoration in the Section 316(b) New Facility
Regulations
The final rule for new facilities includes restoration measures as
part of Track II. EPA did not include restoration in Track I because it
was
[[Page 17169]]
intended to be expeditious and provide certainty for the regulated
community and a streamlined review process for the permitting
authority. To do this for new facilities, EPA defined the best
technology available for minimizing adverse environmental impact in
terms of reduction of impingement and entrainment, a relatively
straightforward metric for environmental performance of cooling water
intake structures. In contrast, restoration measures in general require
complex and lengthy planning, implementation, and evaluation of the
effects of the measures on the populations of aquatic organisms or the
ecosystem as a whole.
EPA included restoration measures in Track II to the extent that
the Director determines that the measures taken will maintain the fish
and shellfish in the waterbody in a manner that represents performance
comparable to that achieved in Track I. Applicants in Track II need not
undertake restoration measures, but they may choose to undertake such
measures. Thus, to the extent that such measures achieve performance
comparable to that achieved in Track I, it is within EPA's authority to
authorize the use of such measures in the place of Track I
requirements. This is similar to the compliance alternative approach
EPA took in the effluent guidelines program for Pesticide Chemicals:
Formulating, Packaging and Repackaging. There EPA established a numeric
limitation but also a set of best management practices that would
accomplish the same numeric limitations. See 61 FR 57518, 57521 (Nov.
6, 1997). EPA believed that section 316(b) of the Clean Water Act
provided EPA with sufficient authority to allow the use of voluntary
restoration measures in lieu of the specific requirements of Track I
where the performance is substantially similar under the principles of
Chevron USA v. NRDC, 467 U.S. 837, 844-45 (1984). In section 316(b) of
the Clean Water Act, Congress is silent concerning the role of
restoration technologies both in the statute and in the legislative
history, either by explicitly authorizing or explicitly precluding
their use. In the context of the new facility rule EPA also believes
that appropriate restoration measures or conservation measures that are
undertaken on a voluntary basis by a new facility to meet the
requirements of that rule fall within EPA's authority to regulate the
``design'' of cooling water intake structures. Bailey v. U.S., 516 U.S.
137 (1995) (In determining the meaning of words used in a statute, the
court considers not only the bare meaning of the word, but also its
placement and purpose in the statutory scheme.)
In the new facility rule EPA recognized that restoration measures
have been used at existing facilities implementing section 316(b) on a
case-by-case, best professional judgment basis as an innovative tool or
as a tool to conserve fish or aquatic organisms, compensate for the
fish or aquatic organisms killed, or enhance the aquatic habitat harmed
or destroyed by the operation of cooling water intake structures. Under
Track II, that flexibility will continue to be available to new
facilities to the extent that they can demonstrate performance
comparable to that achieved in Track I. For example, if a new facility
that chooses Track II is on an impaired waterbody, that facility may
choose to demonstrate that velocity controls in concert with measures
to improve the productivity of the waterbody will result in performance
comparable to that achieved in Track I. The additional measures may
include such things as reclamation of abandoned mine lands to eliminate
or reduce acid mine drainage along a stretch of the waterbody,
establishment of riparian buffers or other barriers to reduce runoff of
solids and nutrients from agricultural or silvicultural lands, removal
of barriers to fish migration, or creation of new habitats to serve as
spawning or nursery areas. Another example might be a facility that
chooses to demonstrate that flow reductions and less protective
velocity controls, in concert with a fish hatchery to restock fish
being impinged and entrained with fish that perform a similar function
in the community structure, will result in performance comparable to
that achieved in Track I.
Finally, in the new facility rule, EPA recognized that it may not
always be possible to establish quantitatively that the reduction in
impact on fish and shellfish is comparable using the types of measures
discussed above as would be achieved in Track I, due to data and
modeling limitations. Despite such limitations, EPA stated that there
may be situations where a qualitative demonstration of comparable
performance could reasonably assure substantially similar performance.
For that reason, EPA provided, in Sec. 125.86 of the new facility rule,
that the Track II Comprehensive Demonstration Study should show that
either: (1) The Track II technologies would result in reduction in both
impingement mortality and entrainment of all life stages of fish and
shellfish of 90 percent or greater of the reduction that would be
achieved through Track I (quantitative demonstration) or, (2) if
consideration of impacts other than impingement mortality and
entrainment is included, the Track II technologies would maintain fish
and shellfish in the waterbody at a substantially similar level to that
which would be achieved under Track I (quantitative or qualitative
demonstration).
b. Restoration Approaches Being Considered for the Existing Facilities
Rule
In the existing facilities rule, EPA is proposing to allow
restoration as one means of satisfying the compliance requirements for
any one of the three alternatives in Sec. 125.94(a). The demonstration
a facility would make to show that the restoration measures provide
comparable performance to design and construction technologies and/or
operational measures would be similar to the demonstration that a
facility would make under Track II in the new facility rule. EPA is
also inviting comment on other restoration approaches it is
considering. These include discretionary and mandatory regulatory
approaches involving restoration measures as well as restoration
banking, which are discussed below.
(1) Discretionary Restoration Approaches
An approach being considered by EPA would provide the Director with
the discretion to specify appropriate restoration measures under
section 316(b), but would not require that he or she do so. This
approach is consistent with several precedents in which the permitting
authority allowed the use of restoration measures when the cost to
retrofit an existing facility's cooling water intake structures with
control technologies was determined to be wholly disproportionate to
the benefits the control technology would provide (e.g., John Sevier,
Crystal River, Chalk Point, Salem). \69\
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\69\ In re Tennessee Valley Authority John Sevier Steam Plant,
NPDES Permit No. TN0005436 (1986); In re Florida Power Corp. Crystal
River Power Plant Units 1, 2, & 3, NPDES Permit FL0000159 (1988);
Chalk Point, MDE, State of Maryland, Discharge Permit, Potomac
Electric Power Co., State Discharge Permit No. 81-DP-0627B, NPDES
Permit No. MD0002658B (1987, modified 1991); Draft NJDEP Permit
Renewal Including Section 316(a) Variance Determination and Section
316(b) BTA Decision: NJDEP Permit No. NJ0005622 (1993).
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(2) Mandatory Restoration Approach
Under this approach, the use of restoration measures would be
required as an element of a section 316(b) determination in all cases
or in some defined set of cases (e.g., for intake structures located on
oceans, estuaries,
[[Page 17170]]
or tidal rivers). Restoration would be required to compensate for
organisms that were not protected following facility installation of
control technologies. Phase II existing facilities with cooling water
intake structures would be required to implement some form of
restoration measures in addition to implementing direct control
technologies to minimize adverse environmental impact. Under this
approach, an existing facility would submit a plan to restore fish and
shellfish to the extent necessary for offsetting fish and shellfish
entrainment and impingement losses estimated to continue to occur after
any required control technology is installed. This restoration plan
would be reviewed and approved by the Director and incorporated in the
permit. This is similar to the mitigation sequence used under CWA
section 404, wherein environmental impacts are avoided and minimized
prior to consideration of compensatory mitigation measures although in
section 404, not all projects require mitigation. The development of
restoration measures applicable to a cooling water intake structure
would focus on the unique situation faced by each facility and would
allow for review and comment by the permitting agency and the public.
(3) Restoration Banking
Restoration plans could potentially use a banking mechanism similar
to those used in the CWA section 404 program, that would allow the
permittee to meet requirements by purchasing restoration credits from
an approved bank. For example, should wetlands restoration be an
appropriate mechanism for offsetting the adverse impact caused by a
cooling water intake structure, the permittee could purchase credits
from an existing wetlands mitigation bank established in accordance
with the Federal Guidance for the Establishment, Use and Operation of
Mitigation Banks (50 FR 58605; November 28, 1995). As in the CWA
section 404 program, public or private entities could establish and
operate the banks providing mitigation for impacts under 316(b). EPA
views the use of restoration banking for the purposes of this proposed
rule as one way to facilitate compliance and reduce the burden on the
permit applicant, while at the same time potentially enhancing the
ecological effectiveness of the required restoration activities.
2. Entrainment Trading
Under Sec. 125.90(d) of today's proposed rule, States may adopt
alternative regulatory requirements that will result in environmental
performance within a watershed that is comparable to the reductions of
impingement mortality and entrainment specified in the proposed
Sec. 125.94. EPA is considering an approach for implementing section
316(b) that would allow specific Phase II existing facilities to trade
entrainment reductions to achieve an overall standard of performance
for entrainment reduction in a watershed at a lower cost through a
voluntary State or authorized Tribal section 316(b) trading program.
EPA believes such an approach might be appropriate in light of section
316(b)'s objective of minimizing adverse environmental impact. The goal
of the trading approach is to provide an incentive for some Phase II
existing facilities to implement more protective technologies than
required by today's proposed rule, resulting in credits that can be
traded with other facilities that may not find the most protective
technologies economically practicable.
EPA acknowledges that the trading framework that EPA is
contemplating under section 316(b) differs from previous trading
strategies implemented by EPA because it involves trading living
resources rather than pollutant loads. Because this is a novel approach
to trading, it raises many questions. For example, how would the
program address concerns that some species have greater economic value
than others, or the counter-argument that some species may not be
economically valuable but nonetheless have high ecological value? What
is an appropriate spatial scale under which trading can occur to ensure
protection of water quality and aquatic organisms? The following
section addresses these questions and others and seeks comment on the
appropriate elements of a trading approach under section 316(b) that
would conserve and protect water quality and aquatic resources.
a. Entrainment Reduction vs. Impingement Reduction as a Basis for
Trading
Entrainment and impingement are the main causes of adverse
environmental impact from cooling water intake withdrawals. However,
impingement reduction technologies are relatively inexpensive compared
to entrainment reduction (see Chapter 2 of the Technical Development
Document for the New Facility Rule, EPA-821-R-01-036, November 2001).
Impingement reduction measures include decreasing intake velocities and
installation of traveling screens with fish baskets and fish return
systems. The implementation of a section 316(b) trading program for
impingement may not justify the cost of monitoring susceptible species
and administrating the program. EPA believes that a trading program
that focuses on entrainment is more viable. However, EPA requests
comment on whether to extend trading to include impingement of aquatic
organisms.
In contrast to impingement controls, entrainment reduction
technologies can be relatively expensive. Section 316(b) trading would
enable smaller facilities that cannot afford to install more costly
technologies to reduce their costs by trading with other Phase II
existing facilities that face relatively lower costs of entrainment
reduction. For the purpose of a section 316(b) trading program, an
entrainment reduction performance standard for a watershed would be set
by the authorized State or Tribe within the range of 60 to 90 percent
for all life stages of entrained fish and shellfish. The performance
standard would be set to reflect site-specific facility and ecological
characteristics. All facilities located in the watershed would need to
reach the performance standard through the installation of technologies
to reduce entrainment (or, potentially, restoration measures to
compensate for entrainment losses at the facility). A facility that can
afford to implement technologies to reduce entrainment above the
performance standard would have entrainment reduction credits to sell
to other facilities that cannot afford or choose not to meet the
performance standard by technology alone. EPA notes that in
Sec. 125.94(c) of today's proposed rule, Phase II existing facilities
may request a site-specific determination of best technology available
if the costs of compliance with the applicable performance standards
are significantly greater than the costs EPA considered when
establishing the performance standards or significantly greater than
site-specific benefits. If a section 316(b) trading program was
available, these facilities could potentially have a lower cost option
for meeting the applicable performance standard for their respective
waterbodies by purchasing credits from another facility that implements
more protective technologies. EPA seeks comment on whether a section
316(b) trading program would generally afford greater watershed
protection by increasing the number of facilities meeting the
performance standard and whether consideration of credit purchases
should be mandatory prior to the Director setting alternative
requirements.
[[Page 17171]]
b. What Should Be the Spatial Scale for Trading?
EPA is considering limiting the zone within which trading may occur
among Phase II existing facilities subject to section 316(b). Due to
site-specific differences in species and life stages of entrained
organisms, the scale of the trading zone would be set to minimize these
differences as much as possible. Trading would be most protective if it
occurred among Phase II existing facilities that generally entrain the
same species and life stages at relatively similar densities per unit
flow through the facility. Thus, EPA would prefer that trades be
conducted by Phase II existing facilities sited in waterbodies that
share similar ecological characteristics, regardless of the relative
geographic proximity of the facilities to each other. EPA is also
considering limiting trades to specific waterbodies, specific
watersheds, or general waterbody types (tidal rivers, estuaries,
oceans). Preliminary EPA analyses indicate that some of these options
may increase the number of Phase II existing facilities eligible to
trade and thus may produce sufficient opportunities to reduce the cost
of meeting the performance standard, allowing for a broader range of
trades.
(1) Specific Waterbody
If section 316(b) trades for Phase II existing facilities were
limited on an individual waterbody basis, EPA estimates that there
would be a total of 132 Phase II existing facilities in 40 specific
waterbodies eligible to trade. In order to be eligible to trade, each
facility involved in the trade would need to be located on the same
waterbody and required to meet the performance standard of the
waterbody. Further limits would have to be placed on trading in very
large waterbodies (e.g., Mississippi River, Pacific Ocean, Atlantic
Ocean) to ensure that the facilities are within similar climatic zones,
and thus entrain similar species. Allowing trading among Phase II
existing facilities and those that may be subject to Phase III
regulations for cooling water intake structures could increase
opportunities for facilities to trade intake control requirements.
(2) Specific Watershed
By limiting trading on a watershed basis, the problems posed by
very large waterbodies are eliminated; however, the zone may include
different types of waterbodies that may harbor different species of
organisms. Hydrologic Unit Codes (HUC) were developed by the United
States Geological Survey (USGS) to divide the conterminous United
States by drainage basins. As the number of digits in the code
increases, the drainage basin delineation becomes more refined. Eight-
digit codes represent the fourth level of classification in the
hierarchy of hydrologic units, where each code represents all or part
of a surface drainage basin. There are 2,150 eight-digit HUCs in the
conterminous United States. In order to be eligible to trade under this
approach, all facilities involved in the trade would be located in the
same eight-digit HUC. EPA invites comment on these and other potential
trading zones for section 316(b) trading for Phase II existing
facilities.
(3) General Waterbody Type
EPA is also considering a site-specific approach that would require
facilities to study and provide data on the numbers, life stages, and
species of organisms entrained in order to be properly matched for
trading with another Phase II existing facility on the same waterbody
type (e.g., tidal river, estuary, ocean, Great Lake) which entrains the
similar numbers, life stages, and species of organisms. EPA seeks
comment on this approach which allows trades to occur among facilities
on the same general waterbody type, but not necessarily the same
waterbody.
c. What Should Be the Unit (Credit) for Trading?
A trading option requires a definition of the trading commodity and
the unit, or credit, that would be traded. In contrast to pollutant-
specific trading, which is normally based on the pounds of a single
pollutant released into the environment or reduced from a source,
trading of entrained species can involve a variety of fish and
shellfish species and their life stages, and may be highly variable
among facilities. Therefore, it could be difficult to define a trading
unit and substantial oversight would be needed under any of these
trading units to determine if the trade complied with the underlying
performance standards from year to year, or another appropriate period.
In developing this proposal, EPA considered a variety of potential
trading credits and invites comment on these and other potential
trading units. EPA is specifically interested in comments on whether
entrainment trading should be species-specific, have weighted values
for different species, or simply be net biomass entrainment expressed
in mass. EPA is also considering use of restoration measures in
conjunction with any of the trading units discussed below. Please see
section VI.E.1 of the preamble to today's proposed rule for additional
information and discussion on restoration.
(1) Species Density
Trading based on the density of entrained species life stages (the
number of eggs, larvae, juvenile and small fish for all fish and
shellfish species entrained per unit of flow through a facility) is
EPA's preferred approach because it would account for differences among
facilities in the number of organisms entrained per unit flow and
would, in a sense, standardize entrainment losses with intake flow
withdrawals. Under this approach, trading would be restricted to those
Phase II existing facilities sited at waterbodies with similar
ecological zones, such as the transitional zone between saline and
freshwater portions of an estuary. Because many aquatic species tend to
inhabit specific zones within a waterbody during their life histories,
restricting trade to individual zones would ensure that similar species
at similar densities are traded. In order for a trade to occur, the
facilities involved must historically entrain similar species. Under
this approach the comparable worth of the unit of flow would be
dependent upon the density of the species entrained (see example
below). Thus, if a facility entrains twice as many organisms as another
facility, its flow would be worth comparably twice as much. This
approach would ensure that all species entrained are protected, but may
limit the number of trades possible. It is possible that use of this
approach may lead to over-protection or under-protection of some
species since the average density of all fish and shellfish would be
used rather than the density for individual species.
(2) Species Counts
Another option for a trading unit is entrained organism counts by
species, life stage, and size. These types of measurements are
routinely collected as part of historical facility demonstration
studies. This option would be protective of all life stages
independently, but would require significant expenditures of time and
resources. Entrained organisms would need to be identified to fairly
precise taxonomic levels and organized by life stage and size classes.
This option would best address the question of different economic
values versus ecological values of species since it would allow
different monetary values to be set for each species. Although this
option would allow for comparable species-by-species trading among
Phase II existing facilities, EPA is concerned that it may also result
in
[[Page 17172]]
complex trading transactions. Also, the number of each species
entrained by a facility can vary substantially each year for many
reasons, including facility outages and extreme weather events.
Substantial oversight might be needed to determine if the trade
achieved the underlying technology-based performance standard from year
to year, or other appropriate period, for compliance.
(3) Biomass
Another potential measure that can be used for trading is the
biomass of entrained organisms. Biomass is defined as the weight of
living material (plant and animal) and can be measured in pounds or
kilograms. Measuring the biomass of organisms entrained by facility
intakes would be relatively fast and easy to quantify. However, the
pound/kilogram as a unit of measurement does not take into account
species variations found at different facility locations and within
multiple waterbody types. Thus, as a result of adopting this unit of
measurement, it would be impossible to distinguish between different
species, or even different kingdoms. Because the weights of all
entrained organisms are combined into a total mass, biomass measurement
may not be equally protective of all species and life stages, and
larger, heavier organisms may bias final results. Over time, biomass
trading may upset the natural equilibrium of certain species and/or
impact the functionality of the entire ecosystem should some species be
entrained more frequently than others. However, EPA invites comment on
whether biomass trading might be limited to certain zones of certain
waterbodies or waterbody types, in a manner similar to that described
above for species-density trading to address some of these concerns.
d. Example of Section 316(b) Trading Under EPA's Preferred Alternative
(Species Density)
Facility A is an existing 750 MGD facility located in an estuary.
Facility B is an existing 350 MGD facility located at the mouth of the
same estuary. The performance standard for this estuary has been set by
the authorized State or Tribe at a 75 percent reduction of entrainment
for all facilities. Facility A determines that it can install a cooling
tower at relatively low cost. The installation of the cooling tower
reduces the facility's flow by 95 percent. Using the standard
assumption that entrained organisms behave like passive water
molecules, this flow reduction will, on a long-term average basis,
reduce entrainment by 95 percent at Facility A. In effect, Facility A
has reduced its entrainment by 20 percent more than it needs to in
order to provide its share toward meeting the performance standard of
75 percent for the estuary. Because of its small size, Facility B
determines that it is not cost effective to reduce entrainment by 75
percent. Instead, Facility B chooses to install fine mesh wedgewire
screens, which reduce its entrainment by 60 percent. Facility B could
possibly make up for the remaining 15 percent of its share to meet the
estuary's performance standard by trading.
Based on historical monitoring data, Facility A entrains alewife,
Atlantic croaker, Atlantic menhaden, bay anchovy, blueback herring,
silversides, spot, striped bass, weakfish and white perch. The average
number, across many years of data, of all life stages of all species
entrained is 417,210 fish per day. Per gallon of water used, it
entrains 0.000556 fish (417,210/750,000,000).
Facility B also entrains alewife, Atlantic croaker, Atlantic
menhaden, bay anchovy, blueback herring, silversides, spot, striped
bass, weakfish, and white perch as determined by historical monitoring
data. Facility B historically entrains the same species of fish as
Facility A as they withdraw water from the same waterbody. The average
number, across many years of data, of all life stages of all species
entrained is 322,620 fish per day. Per gallon of water used, it
entrains 0.000922 fish (322,620/350,000,000). Based on density,
Facility B entrains 1.658 times as many fish as Facility A per unit
flow (0.000922/0.000556). This is the average density ratio of
organisms entrained.
Facility B needs to make up for 15 percent of its share toward the
estuary's performance standard for entrainment reduction. Again, using
the standard assumption that entrained organisms behave like passive
water molecules, the simplified 1:1 relationship between flow and
entrainment from Facility A is also used for Facility B in this
example. Therefore, Facility B needs to compensate for the
environmental effects caused by 15 percent of its flow, or 52,500,000
gallons of resource use (0.15 * 350,000,000). Since Facility A has
reduced entrainment 20 percent more than required, it has 150,000,000
gallons of resource use available for trading (0.20 * 750,000,000). A
trade could be made between these two facilities because they are
located on the same waterbody, they both must install entrainment
controls, and the same species are present in their respective
entrainment numbers. The average density ratio of organisms entrained
multiplied by the gallons of resource use needed by Facility B would
equal the gallons of resource use that Facility B would need to buy
from Facility A in order to make up for the difference in the density
of the species the two facilities entrain. Based on the discrepancy in
the average density of organisms entrained as calculated above, in
order to trade with Facility A, Facility B must purchase entrainment
credits for 1.658 times as many gallons as it needs. Thus, Facility B
needs to purchase 87,045,000 gallons of resource use from Facility A
(1.658 * 52,500,000).
e. Trading Option for New Facilities
EPA is considering extending a section 316(b) trading program
beyond the Phase II rule for existing electric generation facilities.
Those facilities that are covered by the Phase I rule (new facilities)
might be allowed to participate in a section 316(b) trading program.
New facilities could implement technological controls beyond what is
required under the Phase I rule. In general, if more facilities were
allowed to trade, there would be an increased degree of competitiveness
in trading and it would become easier to meet the performance standard
because entrainment reductions would be shared by multiple facilities.
EPA invites comment on the option of extending a section 316(b) trading
program to new facilities.
f. Voluntary Adoption of Trading by Authorized States and Tribes
Under EPA's preferred alternative for section 316(b) trading,
authorized States or Tribes would decide whether to voluntarily adopt a
section 316(b) trading program. EPA notes that authorized States and
Tribes would first need to adopt the appropriate legal authority to
conduct a section 316(b) trading program. In general, EPA believes that
States and Tribes have a better understanding of the dynamics, value,
and overall quality of their local waterbodies based on assigned
designated uses, 305(b) monitoring reports, and other relevant
information and studies compiled over time. Thus, authorized States or
Tribes may be in a better position to judge whether or not to develop
and implement a section 316(b) trading program. Although EPA
acknowledges that a nationally-run section 316(b) trading program may
enhance uniformity, EPA is concerned that a national program may not be
feasible because of differences in species; habitats; waterbody
characteristics; and the variety, nature, and magnitude of
environmental impacts from cooling water intake
[[Page 17173]]
structures found across the United States. EPA seeks comment on whether
a national registry of trades and associated national trading guidance
would be appropriate.
A voluntary program would be administered by the authorized State
or Tribe. Authorized States and Tribes that participate could allow
trading among facilities to meet the entrainment reduction performance
standard. Key environmental and natural resource agencies, industry and
its trade associations, and local environmental groups involved in the
protection of the watershed would participate in the authorized State
or Tribal section 316(b) trading program through the public comment
process. The program would also include consultation with from relevant
Federal, State and authorized Tribal resource agencies and neighboring
authorized States and Tribes where interstate waters are affected
(similar to stakeholder involvement under the NPDES permitting
program).
g. When Would the Permits Be Reissued to Trading Partners?
If trades under section 316(b) are done on a watershed basis, and
permits are synchronized, then permits would be reissued to trading
partners at the same time according to the permitting authority's
standard permit renewal cycle (e.g., every 5 years). With permitting
authorities that have moved toward a watershed permitting strategy,
synchronizing the permit renewal process for all trading partners in a
geographic area reduces some administrative cost and burden on the
permitting authorities.
Alternatively, a trading arrangement may not be specified in the
permit. Instead, the permit would include the performance standard and
a requirement to meet that standard. Under this approach, trades could
occur between permitting cycles. Another option would allow trading of
entrainment units between Phase II existing facilities within permit
cycles at the discretion of each authorized State or Tribal permitting
authority. A disadvantage to this approach is the additional
administrative burden borne by the permitting authorities. EPA seeks
comment on how to harmonize the reissuance of permits with trading
among Phase II existing facilities under section 316(b).
h. Implementation and Enforcement Issues for Section 316(b) Trading
The concept of a section 316(b) trading program for Phase II
existing facilities presents many challenges for the permitting program
at the Federal, State, or authorized Tribe level. These challenges
include development of implementation guidance, incorporation of a
section 316(b) trade tracking system within EPA's Permit Compliance
System or through some other tracking mechanism, self-reporting on
compliance with trade agreements (similar to the self-reporting
conducted through use of Discharge Monitoring Reports), determination
of the administrative cost and burden of such a trading program and EPA
oversight of whether regulatory requirements for impingement and
entrainment reduction are met. EPA invites comment on these unique
challenges and any others regarding implementation, compliance
assessment, and enforcement of a section 316(b) trading program.
VII. Implementation
As in the new facility rule, section 316(b) requirements for Phase
II existing facilities would be implemented through the NPDES permit
program. Today's proposal would establish application requirements in
Sec. 125.95, monitoring requirements in Sec. 125.96, and recordkeeping
and reporting requirements in Sec. 125.97 for Phase II existing
facilities that have a design intake flow of 50 MGD or more. The
proposed regulations also require the Director to review application
materials submitted by each regulated facility and include monitoring
and recordkeeping requirements in the permit (Sec. 125.98). EPA will
develop a model permit and permitting guidance to assist Directors in
implementing these requirements after they are finalized. In addition,
the Agency will develop implementation guidance for owners and
operators that will address how to comply with the application
requirements, the sampling and monitoring requirements, and the
recordkeeping and reporting requirements in these proposed regulations.
A. When Does the Proposed Rule Become Effective?
Phase II existing facilities subject to today's proposed rule would
need to comply with the Subpart J requirements when an NPDES permit
containing requirements consistent with Subpart J is issued to the
facility. See proposed Sec. 125.92. Under existing NPDES program
regulations, this would occur when an existing NPDES permit is reissued
or, when an existing permit is modified or revoked and reissued.
B. What Information Must I Submit to the Director When I Apply for My
Reissued NPDES Permit?
The NPDES regulations that establish the application process at 40
CFR 122.21(d)(2) generally require that facilities currently holding a
permit submit information and data 180 days prior to the end of the
permit term, which is five years. If you are the owner or operator of a
facility that is subject to this proposed rule, you would be required
to submit the information that is required under 40 CFR 122.21(r)(2),
(3), and (5) and Sec. 125.95 of today's proposed rule with your
application for permit reissuance. This section provides a general
discussion of the proposed application requirements for Phase II
existing facilities at the outset and then goes into more detail in
subsequent subsections. The Director would review the information you
provide in your application including the information submitted in
compliance with 40 CFR 122.21(r) and Sec. 125.95 and would confirm
whether your facility should be regulated as an existing facility under
these proposed regulations or as a new facility under regulations that
were published on December 19, 2001 (66 FR 65256) and establish the
appropriate requirements to be applied to the cooling water intake
structure(s).
Today's proposed rule would modify regulations at 40 CFR 122.21(r)
to require existing facilities to prepare and submit some of the same
information required for new facilities. The proposed application
requirements would require owners or operators of Phase II existing
facilities to submit two general categories of information when they
apply for a reissued NPDES permit. The general categories of
information would include (1) Physical data to characterize the source
waterbody in the vicinity where the cooling water intake structures are
located (40 CFR 122.21(r)(2)) and (2) data to characterize the design
and operation of the cooling water intake structures (40 CFR
122.21(r)(3)). Unlike the new facilities, however, Phase II existing
facilities would not be required to submit the Source Water Baseline
Biological Characterization Data required under 40 CFR 122.21(r)(4)).
Today's proposed rule would add a new requirement at 40 CFR
122.21(r)(5) to require a facility to submit information describing the
design and operating characteristics of its cooling water systems and
how they relate to the cooling water intake structures at the facility.
In addition, today's proposed rule would require all Phase II
existing facilities to submit the information
[[Page 17174]]
required under Sec. 125.95. In general, the proposed application
requirements in Sec. 125.95 require all Phase II existing facility
applicants, except those that already use a closed-cycle, recirculating
cooling system, to submit a Comprehensive Demonstration Study
(Sec. 125.95(b)). This study includes a proposal for information
collection; source waterbody information; a characterization of
impingement morality and entrainment; a proposal for technologies,
operational measures, restoration measures and estimated efficacies;
and a plan to conduct monitoring to demonstrate that the proposed
technologies and measures achieve the performance levels that were
estimated. The following describes the proposed application
requirements in more detail.
1. Source Water Physical Data (40 CFR 122.21(r)(1)(ii))
Under the proposed requirements at 40 CFR 122.21(r)(1)(ii), Phase
II existing facilities subject to this proposed rule would be required
to provide the source water physical data specified at 40 CFR
122.21(r)(2) in their application for a reissued permit. These data are
needed to characterize the facility and evaluate the type of waterbody
and species potentially affected by the cooling water intake structure.
The Director would use this information to evaluate the appropriateness
of the design and construction technologies proposed by the applicant.
The applicant would be required to submit the following specific
data: (1) A narrative description and scale drawings showing the
physical configuration of all source waterbodies used by the facility,
including areal dimensions, depths, salinity and temperature regimes,
and other documentation; (2) an identification and characterization of
the source waterbody's hydrological and geomorphological features, as
well as the methods used to conduct any physical studies to determine
the intake's zone of influence and the results of such studies; and (3)
locational maps.
2. Cooling Water Intake Structure Data (40 CFR 122.21(r)(1)(ii))
Under the proposed requirements at 40 CFR 122.21(r)(1)(ii), Phase
II existing facilities would be required to submit the cooling water
intake structure data specified at 40 CFR 122.21(r)(3) to characterize
the cooling water intake structure and evaluate the potential for
impingement and entrainment of aquatic organisms. Information on the
design of the intake structure and its location in the water column
would allow the permit writer to evaluate which species or life stages
would potentially be subject to impingement and entrainment. A diagram
of the facility's water balance would be used to identify the
proportion of intake water used for cooling, make-up, and process
water. The water balance diagram also provides a picture of the total
flow in and out of the facility, allowing the permit writer to evaluate
compliance with the performance standards.
The applicant would be required to submit the following specific
data: (1) A narrative description of the configuration of each of its
cooling water intake structures and where they are located in the
waterbody and in the water column; (2) latitude and longitude in
degrees, minutes, and seconds for each of its cooling water intake
structures; (3) a narrative description of the operation of each of
your cooling water intake structures, including design intake flows,
daily hours of operation, number of days of the year in operation, and
seasonal operation schedules, if applicable; (4) a flow distribution
and water balance diagram that includes all sources of water to the
facility, recirculating flows, and discharges; and (5) engineering
drawings of the cooling water intake structure.
3. Phase II Existing Facility Cooling Water System Description (40 CFR
122.21(r)(1)(ii))
Under the proposed requirements at 40 CFR 122.22(r)(1)(ii), Phase
II existing facilities would be required to submit the cooling water
system data specified at 40 CFR 122.21(r)(5) to characterize the
operation of cooling water systems and their relationship to the
cooling water intake structures at the facility. Also proposed to be
required is a description of the design intake flow that is attributed
to each system and the number of days of the year in operation and any
seasonal operation schedules, if applicable. This information would be
used by the applicant and the Director in determining the appropriate
standards that can be applied to the Phase II facility. Facilities that
have closed-cycle, recirculating cooling water systems will be
determined to have met the performance standards in Sec. 125.94 if all
of their systems are closed-cycle, recirculating cooling systems. These
facilities are not required to submit a Comprehensive Demonstration
Study. Additionally, if only a portion of the total design intake flow
is water withdrawn for a closed-cycle, recirculating cooling system,
such facilities may use the reduction in impingement mortality and
entrainment that is attributed to the reduction in flow in complying
with the performance standards in Sec. 125.94(b).
4. Comprehensive Demonstration Study (Sec. 125.95(b))
Proposed application requirements at Sec. 125.95(b) would require
all existing facilities except those deemed to have met the performance
standard in Sec. 125.94(b)(1) (reduced intake capacity to a level
commensurate with the use of a closed-cycle, recirculating cooling
water system) to perform and submit to the Director the results of a
Comprehensive Demonstration Study, including data and detailed analyses
to demonstrate that you will meet applicable requirements in
Sec. 125.94.
The proposed Comprehensive Demonstration Study has seven
components.
Proposal for Information Collection;
Source Waterbody Flow Information;
Impingement Mortality and Entrainment Characterization
Study;
Design and Construction Technology Plan;
Information to Support Proposed Restoration Measures;
Information to Support Site-specific Determination of Best
Technology Available for Minimizing Adverse Environmental Impact; and
Verification Monitoring Plan.
The information required under each of these components of the
Comprehensive Demonstration Study may not be required to be submitted
by all Phase II existing facilities. Required submittals for your
facility would depend on the compliance option you have chosen. All
Phase II existing facilities, except those deemed to have met the
performance standard in Sec. 125.94(b)(1), would be required to submit
a Proposal for Information Collection; a Source Waterbody Flow
Information; an Impingement Mortality and Entrainment Characterization
Study; a Design and Construction Technology Plan; and a Verification
Monitoring Plan. Only those Phase II existing facilities that propose
to use restoration measures in whole or in part to meet the performance
standards in Sec. 125.94 would be required to submit the Information to
Support Proposed Restoration Measures. Only those facilities who choose
to demonstrate that a site-specific standard is appropriate for their
site would be required to submit Information to Support Site-specific
Determination of Best Technology Available for Minimizing Adverse
Environmental Impact.
[[Page 17175]]
a. Proposal for Information Collection
Before performing the study you would be required to submit to the
Director for review and approval, a proposal stating what information
would be collected to support the study (see Sec. 125.96(b)(1)). This
proposal would provide: (1) A description of the proposed and/or
implemented technology(ies) and/or supplemental restoration measures to
be evaluated; (2) a list and description of any historical studies
characterizing impingement and entrainment and/or the physical and
biological conditions in the vicinity of the cooling water intake
structures and their relevance to this proposed study. If you propose
to use existing data, you must demonstrate the extent to which the data
are representative of current conditions and that the data were
collected using appropriate quality assurance/quality control
procedures; (3) a summary of any past, ongoing, or voluntary
consultations with appropriate Federal, State, and Tribal fish and
wildlife agencies that are relevant to this study and a copy of written
comments received as a result of such consultation; and (4) a sampling
plan for any new field studies you propose to conduct in order to
ensure that you have sufficient data to develop a scientifically valid
estimate of impingement and entrainment at your site. The sampling plan
would document all methods and quality assurance/quality control
procedures for sampling and data analysis. The sampling and data
analysis methods you propose must be appropriate for a quantitative
survey and must take into account the methods used in other studies
performed in the source waterbody. The sampling plan would include a
description of the study area (including the area of influence of the
cooling water intake structure), and provide taxonomic identifications
of the sampled or evaluated biological assemblages (including all life
stages of fish and shellfish).
The proposed rule does not specify particular timing requirements
for your information collection proposal, but does require review and
approval of the proposal by the Director. In general, EPA expects that
it would be submitted well in advance of the other permit application
materials, so that if the Director determined that additional
information was needed to support the application, the facility would
have time to collect this information, including additional monitoring
as appropriate. In some cases, however, where the facility intends to
rely on existing data and there has been no change in conditions at the
site since the last permit renewal, a long lead time might not be
necessary. This would most likely be the case for subsequent permit
renewals following the first renewal after the Phase II requirements go
into effect. EPA requests comment on whether it should specify a
particular time frame for submitting the information collection
proposal, or alternatively, whether it should remove the requirement
for approval by the Director.
b. Source Waterbody Flow Information
Under the proposed requirements at Sec. 125.95(b)(2)(i), Phase II
existing facilities, except those deemed to meet the performance
standard in Sec. 125.94(b)(1), with cooling water intake structures
that withdraw cooling water from freshwater rivers or streams would be
required to provide the mean annual flow of the waterbody and any
supporting documentation and engineering calculations that allow a
determination of whether they are withdrawing less than or greater than
five (5) percent of the annual mean flow. This would provide
information needed to determine which requirements (Sec. 125.94(b)(2)
or (3)) would apply to the facility. The documentation might include
either publicly available flow data from a nearby U.S. Geological
Survey (USGS) gauging station or actual instream flow monitoring data
collected by the facility. The waterbody flow should be compared with
the total design flow of all cooling water intake structures at the
regulated facility.
Under the proposed requirements at Sec. 125.95(b)(2)(ii), Phase II
existing facilities subject to the proposed rule with cooling water
intake structures that withdraw cooling water from a lake or reservoir
and that propose to increase the facility's design intake flow would be
required to submit a narrative description of the waterbody thermal
stratification and any supporting documentation and engineering
calculations to show that the increased flow meets the requirement not
to disrupt the natural thermal stratification or turnover pattern
(where present) of the source water except in cases where the
disruption is determined to be beneficial to the management of
fisheries for fish and shellfish by any fishery management agency(ies)
(Sec. 125.94(b)(4)(ii)). Typically, this natural thermal stratification
would be defined by the thermocline, which may be affected to a certain
extent by the withdrawal of cooler water and the discharge of heated
water into the system. This information demonstrates to the permit
writer that any increase in design intake flow is maintaining the
thermal stratification or turnover pattern (where present) of the
source water except in cases where the disruption is determined to be
beneficial to the management of fisheries for fish and shellfish by any
fishery management agency(ies).
c. Impingement Mortality and Entrainment Characterization Study
(Sec. 125.95(b)(3))
The proposed regulations would require that you submit the results
of an Impingement Mortality and Entrainment Characterization Study in
accordance with Sec. 125.96(b)(3). This characterization would include:
(1) Taxonomic identifications of those species of fish and shellfish
and their life stages that are in the vicinity of the cooling water
intake structure and are most susceptible to impingement and
entrainment; (2) a characterization of these species of fish and
shellfish and life stages, including a description of the abundance and
temporal/spatial characteristics in the vicinity of the cooling water
intake structure, based on the collection of a sufficient number of
years of data to characterize annual, seasonal, and diel variations in
impingement mortality and entrainment (e.g., related to climate/weather
differences, spawning, feeding and water column migration); and (3)
documentation of the current impingement mortality and entrainment of
all life stages of fish and shellfish at the facility and an estimate
of impingement mortality and entrainment under the calculation
baseline. This documentation may include historical data that are
representative of the current operation of the facility and of
biological conditions at the site. Impingement mortality and
entrainment samples to support the calculations required in
Sec. 125.95(b)(4)(iii) and (b)(5)(ii) must be collected during periods
of representative operational flows for the cooling water intake
structure and the flows associated with the samples must be documented.
In addition, this study must include an identification of species that
are protected under Federal, State, or Tribal law (including threatened
or endangered species) that might be susceptible to impingement and
entrainment by the cooling water intake structure(s). The Director
might coordinate a review of your list of threatened, endangered, or
other protected species with the U.S. Fish and Wildlife Service,
National Marine Fisheries Service, or other relevant agencies to ensure
that potential
[[Page 17176]]
impacts to these species have been addressed.
d. Design and Construction Technology Plan (Sec. 125.96(b)(4))
If you choose to use existing and/or proposed design and
construction technologies or operational measures in whole or in part
to meet the requirements of Sec. 125.94, proposed Sec. 125.95(b)(4)
would require that you develop and submit a Design and Construction
Technology Plan with your application that demonstrates that your
facility has selected and would implement the design and construction
technologies necessary to reduce impingement mortality and/or
entrainment to the levels required. The Agency recognizes that
selection of the specific technology or group of technologies for your
site would depend on individual facility and waterbody conditions.
Phase II existing facilities seeking to avoid entrainment reduction
requirements because their capacity utilization rate is less than 15
percent, would also be required to calculate and submit the capacity
utilization rate and supporting data and calculations. The data being
requested include (1) the average annual net generation of the facility
in (Mwh) measured over a five year period (if available) and
representative of operating conditions and (2) the net capacity of the
facility (in MW). These data are needed to determine whether the
facility has less than a 15 percent utilization rate and would only be
required to reduce impingement mortality in accordance with
Sec. 125.94(b)(1).
In its application, a Phase II existing facility choosing to use
design and construction technologies or operational measures to meet
the requirements of Sec. 125.94 would be required to describe the
technology(ies) or operational measures they would implement at the
facility to reduce impingement mortality and entrainment based on
information that demonstrates the efficacy of the technologies for
those species most susceptible. Examples of appropriate technologies
would include, but are not limited to, wedgewire screens, fine mesh
screens, fish handling and return systems, barrier nets, aquatic filter
barrier systems, enlargement of the cooling water intake structure to
reduce velocity. Examples of operational measures include, but are not
limited to, seasonal shutdowns or reductions in flow, and continuous
operations of screens, etc.
Phase II existing facilities that are required to meet the proposed
ranges to reduce impingement mortality by 80 to 95 percent and
entrainment by 60 to 90 percent would be required to provide
calculations estimating the reduction in impingement mortality and
entrainment of all life stages of fish and shellfish that would be
achieved through the use of existing and/or proposed technologies or
operational measures. In determining compliance with any requirements
to reduce impingement mortality or entrainment, you must first
determine the calculation baseline against which to assess the total
reduction in impingement mortality and entrainment. The calculation
baseline is defined Sec. 125.93 as an estimate of impingement mortality
and entrainment that would occur at your site assuming you had a
shoreline cooling water intake structure with an intake capacity
commensurate with a once-through cooling water system and with no
impingement and/or entrainment reduction controls. Reductions in
impingement mortality and entrainment from this calculation baseline as
a result of any design and construction technologies already
implemented at your facility would be added to the reductions expected
to be achieved by any additional design and construction technologies
that would be implemented in order to determine compliance with the
performance standards. Facilities that recirculate a portion of their
flow may take into account the reduction in impingement mortality and
entrainment associated with the reduction in flow when determining the
net reduction associated with existing technology and operational
measures. This estimate must include a site-specific evaluation of the
suitability of the technology(ies) based on the species that are found
at the site, and/or operational measures and may be determined based on
representative studies (i.e., studies that have been conducted at
cooling water intake structures located in the same waterbody type with
similar biological characteristics) and/or site-specific technology
prototype studies.
If your facility already has some existing impingement mortality
and entrainment controls, you would need to estimate the calculation
baseline. This calculation baseline could be estimated by evaluating
existing data from a facility nearby without impingement and/or
entrainment control technology (if relevant) or by evaluating the
abundance of organisms in the source waterbody in the vicinity of the
intake structure that may be susceptible to impingement and/or
entrainment. The proposed rule would specifically require that the
following information be submitted in the Design and Construction
Technology Plan: (1) A narrative description of the design and
operation of all design and construction technologies existing or
proposed to reduce impingement mortality; (2) a narrative description
of the design and operation of all design and construction technologies
existing or proposed to reduce entrainment; (3) calculations of the
reduction in impingement mortality and entrainment of all life stages
of fish and shellfish that would be achieved by the technologies and
operational measures you have selected based on the Impingement
Mortality and Entrainment Characterization Study in Sec. 125.95(b)(3);
(4) documentation which demonstrates that you have selected the
location, design, construction, and capacity of the cooling water
intake structure that reflects the best technology available for
meeting the applicable requirements in Sec. 125.94; and (5) design
calculations, drawings, and estimates to support the narrative
descriptions required by steps (1) and (2) above.
Today's proposed rule allows for the Director to evaluate, with
information submitted in your application, the performance of any
technologies you may have implemented in previous permit terms.
Additional or different design and construction technologies may be
required if the Director determines that the initial technologies you
selected and implemented would not meet the requirements of
Sec. 125.94.
e. Information To Support Proposed Restoration Measures
(Sec. 125.94(b)(5))
Under proposed Sec. 125.94(d), Phase II existing facilities subject
to the proposed rule may propose to implement restoration measures in
lieu of or in combination with design and construction or operational
measures to meet the performance standards in Sec. 125.94(b) or site-
specific requirements imposed under Sec. 125.94(c). Facilities
proposing to use restoration measures would be required to submit the
following information to the Director for review as proposed in
Sec. 125.95(b)(5). The Director must approve any use of restoration
measures.
First, the Phase II existing facility must submit a list and
narrative description of the restoration measures the facility has
selected and proposes to implement. This list and description should
identify the species and other aquatic resources targeted under any
restoration measures. The facility also must submit a summary of any
past, ongoing, or voluntary consultation with appropriate Federal,
State, and Tribal fish and wildlife agencies regarding the
[[Page 17177]]
proposed restoration measures that is relevant to the Comprehensive
Demonstration Study and a copy of any written comments received as a
result of such consultation.
Second, the facility must submit a quantification of the combined
benefits from implementing design and construction technologies,
operational measures and/or restoration measures and the proportion of
the benefits that can be attributed to each. This quantification must
include: (1) The percent reduction in impingement mortality and
entrainment that would be achieved through the use of any design and
construction technologies or operational measures that the facility has
selected (i.e., the benefits that would be achieved through impingement
and entrainment reduction); (2) a demonstration of the benefits that
could be attributed to the restoration measures selected; and (3) a
demonstration that the combined benefits of the design and construction
technology(ies), operational measures, and/or restoration measures
would maintain fish and shellfish at a level comparable to that which
you would achieve were you to implement the requirements of
Sec. 125.94. They also must establish that biotic community structure
and function would be maintained to a level comparable or substantially
similar to that which would be achieved through Sec. 125.94 (b) or (c).
If it is not possible to demonstrate quantitatively that
restoration measures such as creation of new habitats to serve as
spawning or nursery areas or establishment of riparian buffers would
achieve comparable performance, a facility may make a qualitative
demonstration that such measures would maintain fish and shellfish in
the waterbody at a level substantially similar to that which would be
achieved under Sec. 125.94. Any qualitative demonstration must be
sufficiently substantive to support a demonstration under
Sec. 125.94(d).
Third, the facility must submit a plan for implementing and
maintaining the efficacy of the restoration measures it has selected as
well as supporting documentation to show that the restoration measures,
or the restoration measures in combination with design and construction
technology(ies) and operational measures, would maintain the fish and
shellfish in the waterbody, including the community structure and
function, to a level comparable or substantially similar to that which
would be achieved through Sec. 125.94(b) and (c). This plan should be
sufficient to ensure that any beneficial effects would continue for at
least the term of the permit.
Finally, the facility must provide design and engineering
calculations, drawings, and maps documenting that the proposed
restoration measures would meet the restoration performance standard at
Sec. 125.94(d).
The proposed regulations at Sec. 125.98(b)(1)(ii) would require
that this information be reviewed by the Director to determine whether
the documentation demonstrates that the proposed restoration measures,
in conjunction with design and construction technologies and
operational measures would maintain the fish and shellfish in the
waterbody to a level substantially similar to that which would be
achieved under Sec. 125.94.
f. Information To Support Site-Specific Determination of Best
Technology Available for Minimizing Adverse Environmental Impact
Under the third compliance option, the owner or operator of a Phase
II existing facility may demonstrate to the Director that a site-
specific determination of best technology available is appropriate for
the cooling water intake structures at that facility if the owner or
operator can meet one of the two cost tests specified under
Sec. 125.94(c)(1). To be eligible to pursue this approach, the Phase II
existing facility must first demonstrate to the Director either (1)
that its cost of compliance with the applicable performance standards
specified in Sec. 125.94(b) would be significantly greater than the
costs considered by the Administrator in establishing such performance
standards, or (2) that the existing facility's costs would be
significantly greater than benefits of complying with the performance
standards at the facility's site. A discussion of applying this cost
test is provided in Section VI.A of this proposed rule. Where a Phase
II existing facility demonstrates that it meets either of these cost
tests, the Director must make a site-specific determination of best
technology available for minimizing adverse environmental impact. This
determination would be based on less costly design and construction
technologies, operational measures, and/or restoration measures
proposed by the facility and approved by the Director. The Director can
approve less costly technologies to the extent justified by the
significantly greater cost, and could determine that technologies and
measures in addition to those already in place are not justified
because of the significantly greater cost.
A Phase II existing facility that meets one of the two cost tests
described above must select less costly design and construction
technologies, operational measures, and/or restoration measures that
would minimize adverse environmental impact to the extent justified by
the significantly greater cost. In order to do this, Phase II existing
facilities that pursue this option would have to assess the nature and
degree of adverse environmental impact associated with their cooling
water intake structures, and then identify the best technology
available to minimize such impact. Phase II existing facilities would
assess adverse environmental impact associated with their cooling water
intake structures in the Comprehensive Demonstration Study that would
be required to be submitted to the Director under Sec. 125.95(b). This
study would include source waterbody flow information, and a
characterization of impingement mortality and entrainment, as described
in this section of this preamble.
Such facilities also must submit to the Director for approval a
Site-Specific Technology Plan. This plan would be based on the
Comprehensive Cost Evaluation Study and, for those facilities seeking a
site-specific determination of best technology available based on costs
significantly greater than benefits, a valuation of monetized benefits
(see Section VI.A). It would describe the design and operation of all
design and construction technologies, operational measures, and
restoration measures selected, and provide information that
demonstrates the effectiveness of the selected technologies or measures
for reducing the impacts on the species of concern. Existing facilities
would be required to submit design calculations, drawings, and
estimates to support these descriptions. This plan also would need to
include engineering estimates of the effectiveness of the technologies
or measures for reducing impingement mortality and entrainment of all
life stages of fish and shellfish. It also would need to include a
site-specific evaluation of the suitability of the technologies or
measures for reducing impingement mortality and entrainment based on
representative studies and/or site-specific technology prototype
studies. Again, design calculations, drawings and estimates would be
required to support such estimates. If a Phase II existing facility
intends to use restoration measures in its site-specific approach, it
also must submit the information required under
[[Page 17178]]
Sec. 125.95(b)(5). See preamble Section VII.B.4.e. Finally, the Site-
Specific Technology Plan would have to include documentation that the
technologies, operational measures or restoration measures selected
would reduce impingement mortality and entrainment to the extent
necessary to satisfy the requirements of Sec. 125.94 (i.e., the level
of performance would be reduced only to the extent justified by the
significantly greater cost).
g. Verification Monitoring Plan
Finally, proposed Sec. 125.95(b)(7) would require all Phase II
existing facilities, except those deemed to meet the performance
standard in Sec. 125.94(b)(1), to submit a Verification Monitoring Plan
to measure the efficacy of the implemented design and construction
technologies, operational measures, and restoration measures. The plan
would include a monitoring study lasting at least two years to verify
the full-scale performance of the proposed or already implemented
technologies and of any additional operational and restoration
measures. The plan would be required to describe the frequency of
monitoring and the parameters to be monitored and the bases for
determining these. The Director would use the verification monitoring
to confirm that the facility is meeting the level of impingement
mortality and entrainment reduction expected and that fish and
shellfish are being maintained at the level expected (as required in
Sec. 125.94(b)). Verification monitoring would be required to begin
once the technologies, operational measures, or supplemental
restoration measures are implemented and continue for a sufficient
period of time (but at least two years) to demonstrate that the
facility is reducing impingement mortality and entrainment to the level
of reduction required at Sec. 125.94(b) or (c).
C. How Would the Director Determine the Appropriate Cooling Water
Intake Structure Requirements?
The Director's first step would be to determine whether the
facility is covered by this rule. If the answer to all the following
questions is yes, the facility would be required to comply with the
requirements of this proposed rule.
(1) Does the facility both generate and transmit electric power or
generate electric power but sell it to another entity for transmission?
(2) Is the facility an ``existing facility'' as defined in
Sec. 125.93?
(3) Does the facility withdraw cooling water from waters of the
U.S.; or does the facility obtain cooling water by any sort of contract
or arrangement with an independent (supplier or multiple suppliers) of
cooling water if the supplier(s) withdraw(s) water from waters of the
U.S. and is not a public water system?
(4) Is at least 25 percent of the water withdrawn by the facility
used for cooling purposes?
(5) Does the facility have a design intake flow of 50 million
gallons or more per day (MGD)? \70\
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\70\ If the answer is no to these flow parameters and yes to all
the other questions, the Director would use best professional
judgment on a case-by-case basis to establish permit conditions that
ensure compliance with section 316(b).
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(6) Does the facility discharge pollutants to waters of the U.S.,
including storm water-only discharges, such that the facility has or is
required to have an NPDES permit?
The Director's second step would be to determine whether the
facility proposes to comply by demonstrating that its existing design
and construction technologies, operational measures, or restoration
measures meet the proposed performance standards (Option 1); by
implementing design and construction technologies, operational
measures, or restoration measures that, in combination with existing
technologies and operational measures, meet the proposed performance
standards (Option 2); or by seeking a site-specific determination of
best technology available to minimize adverse environmental impact
(Option 3) (see, Sec. 125.98(1)). The Director also would need to
determine whether the facility's utilization rate is less than 15
percent, since such facilities are only subject to impingement
mortality performance requirements.
Where a Phase II existing facility selects Option 1 and chooses to
demonstrate that its existing design and construction technologies,
operational measures, or restoration measures meet the proposed
performance standards, the Director would verify either that the
existing facility satisfies the reduced intake capacity requirement, or
that the facility meets the impingement and entrainment reduction and
other requirements. Facilities that have closed-cycle, recirculating
cooling water systems would meet the reduced intake capacity
requirement, and would not be subject to further performance standards.
Other methods of reducing intake capacity also could be used but would
need to be commensurate with the level that can be attained by a
closed-cycle, recirculating cooling water system.
Under Option 1, to verify that existing controls meet the
impingement and entrainment reduction requirements in the proposed
rule, the Director would need to (1) verify the facility's baseline
calculation; (2) confirm the location of the facility's cooling water
intake structure(s); (3) verify the withdrawal percentage of mean
annual flow; (4) review impingement and/or entrainment rates or
estimates; and (5) consider any use of restoration. These same steps
also would be part of determining requirements under Options 2 and 3,
as discussed below.
The Director would initially review and verify the calculation
baseline estimate submitted by the facility under Sec. 125.95(b)(iii).
This estimate must be consistent with the proposed definition of the
term ``calculation baseline'' and must be representative of current
biological conditions at the facility. The Director would then review
the information that the facility provides to validate the source
waterbody type in which the cooling water intake structure is located
(freshwater river or stream; lake or reservoir; or estuary, tidal
river, ocean, or Great Lake). The Director would review the supporting
material the applicant provided in the permit application to document
the physical placement of the cooling water intake structure. For
existing facilities with one or more cooling water intake structures
located in a freshwater river or stream, the Director would need to
determine whether the facility withdraws more or less than five percent
of the mean annual flow, which determines whether impingement, or
impingement and entrainment controls would apply. For facilities with
cooling water intake structures located on lakes or reservoirs other
than a Great Lake for which the facility seeks to increase the design
flow, the Director would need to determine whether the increased intake
flow would disrupt the natural thermal stratification or turnover
pattern of the source waterbody. In making this determination the
Director would need to consider anthropogenic factors that can
influence the occurrence and location of a thermocline, and would need
to coordinate with appropriate Federal, State, or Tribal fish and
wildlife agencies to determine if the disruption is beneficial to the
management of the fisheries. Both of these determinations would be
based on the source waterbody flow information required under proposed
Sec. 125.95(b)(2).
For Phase II existing facilities that use or propose to implement
restoration measures to meet the requirements of Sec. 125.94(b), the
Director would review the evaluation of any current or proposed
restoration measures submitted under proposed
[[Page 17179]]
Sec. 125.95(b)(5). The Director could gather additional information and
solicit input for the review from appropriate fishery management
agencies as necessary. The Director would need to determine whether the
current or proposed measures would maintain the fish and shellfish in
the waterbody at comparable levels to those that would be achieved
under Sec. 125.94, as well as review and approve the proposed
Verification and Monitoring Plan to ensure the restoration measures
meet Sec. 125.94(d) and 125.95(b)(3).
Finally, the Director would review impingement and/or entrainment
data or estimates to determine whether in-place or identified controls
achieve the performance standards proposed for the different categories
of source waterbodies. This step would involve comparing the
calculation baseline with the impingement and/or entrainment data or
estimates provided as part of the Comprehensive Demonstration Study
required under Sec. 125.95(b) and the Impingement Mortality and
Entrainment Characterization Study required under Sec. 125.95(b)(3). It
may also entail considering whether, how, and to what extent
restoration would allow the facility to meet applicable performance
standards.
If the Director determines that the Comprehensive Demonstration
Study submitted does not demonstrate that the technologies, operational
measures, and supplemental restoration measures employed would achieve
compliance with the applicable performance standards, the Director may
issue a permit requiring such compliance. If such studies are approved
and a permit is issued but the Director later determines, based on the
results of subsequent monitoring, that the technologies, operational
measures, and supplemental restoration measures did not meet the rule
standards, the Director could require the existing facility to
implement additional technologies and operational measures as necessary
to meet the rule requirements. In general, this would occur at the next
renewal of the permit. The Director would also review the facility's
Technology Verification Plan for post-operational monitoring to
demonstrate that the technologies are performing as predicted.
Under compliance Option 2, the same general steps would be followed
as described above for assessing compliance of existing controls with
applicable performance standards except that under this option the
Phase II existing facility would be demonstrating that the technologies
and measures identified would meet (rather than currently meet) the
applicable performance standards. This review would also be based on
data submitted in the Comprehensive Demonstration Study required under
Sec. 125.95(b).
These same basic steps also apply to facilities seeking to comply
under Option 3, however, the Director must make two additional
determinations under this option, including whether the facility meets
one of the applicable cost tests and whether any alternative
requirements are justified by significantly greater costs. Under Option
3, a Director must first determine whether a Phase II existing facility
satisfies either of the cost tests proposed at Sec. 125.94(c). Phase II
existing facilities seeking to comply under this option are required to
submit a Comprehensive Cost Evaluation Study under Sec. 125.95(b)(6),
which includes data that document the cost of implementing design and
construction technologies or operational measures to meet the
requirements of Sec. 125.94, as well as the costs of alternative
technologies or operational measures proposed. The Director would need
to review these data, including detailed engineering cost estimates,
and compare these with the costs the Agency considered in establishing
these requirements. Where the Director finds that the facility's cost
of implementation are significantly greater than those considered
during rule development, he or she must approve site-specific
requirements and could approve alternative technologies or operational
measures. Such alternative technologies or operational measures could
be those proposed by the facility in the Site-Specific Technology Plan,
but less protective requirements would have to be justified by the
significantly greater costs.
Where a Phase II existing facility seeks site-specific requirements
based on facility costs that are significantly greater than the
environmental benefits of compliance, the facility must submit a
Valuation of Monetized Benefits of Reducing Impingement and
Entrainment. The Director must review this valuation to determine
whether it fully values the impacts of the cooling water intake
structures at issue, as required in Sec. 125.95(b)(6)(ii), and whether
the facility's cost of implementation are significantly greater than
the environmental benefits of complying with the requirements of
Sec. 125.94. If the Director determines that the implementation costs
are significantly greater than the environmental benefits, the Director
must approve site-specific requirements and could approve alternative
technologies or operational measures. Such alternative technologies or
operational measures could be those proposed by the facility in the
Site-Specific Technology Plan, but less protective requirements would
have to be justified by the significantly greater costs. EPA is
interested in ways to decrease application review time and make this
process both efficient and effective.
D. What Would I Be Required To Monitor?
Proposed Sec. 125.96 provides that Phase II existing facilities
would have to perform monitoring to demonstrate compliance with the
requirements of Sec. 125.94 as prescribed by the Director. In
establishing such monitoring requirements, the Director should consider
the need for biological monitoring data, including impingement and
entrainment sampling data sufficient to assess the presence, abundance,
life stages, and mortality (including eggs, larvae, juveniles, and
adults) of aquatic organisms (fish and shellfish) impinged or entrained
during operation of the cooling water intake structure. These data
could be used by the Director in developing permit conditions to
determine whether requirements, or additional requirements, for design
and construction technologies or operational measures should be
included in the permit. The Director should ensure, where appropriate,
that any required sampling would allow for the detection of any annual,
seasonal, and diel variations in the species and numbers of individuals
that are impinged or entrained. The Director should also consider if a
reduced frequency in biological monitoring may be justified over time
if the supporting data show that the technologies are consistently
performing as projected under all operating and environmental
conditions and less frequent monitoring would still allow for the
detection of any future performance fluctuations. The Director should
further consider whether weekly visual or remote or similar inspections
should be required to ensure that any technologies that have been
implemented to reduce impingement mortality or entrainment are being
maintained and operated in a manner that ensures that they function as
designed. Monitoring requirements could be imposed on Phase II existing
facilities that have been deemed to meet the performance standard in
Sec. 125.94(b)(1) to the extent consistent with the provisions of the
NPDES program.
[[Page 17180]]
E. How Would Compliance Be Determined?
This proposed rule would be implemented by the Director placing
conditions consistent with this proposed rule in NPDES permits. To
demonstrate compliance, the proposed rule would require that the
following information be submitted to the Director:
Data submitted with the NPDES permit application to show
that the facility is in compliance with location, design, construction,
and capacity requirements;
Compliance monitoring data and records as prescribed by
the Director.
Proposed Sec. 125.97 would require existing facilities to keep records
and report compliance monitoring data in a yearly status report. In
addition, Directors may perform their own compliance inspections as
deemed appropriate (see CFR 122.41).
F. What Are the Respective Federal, State, and Tribal Roles?
Section 316(b) requirements are implemented through NPDES permits.
Today's proposed regulations would amend 40 CFR 123.25(a)(36) to add a
requirement that authorized State and Tribal programs have sufficient
legal authority to implement today's requirements (40 CFR part 125,
subpart J). Therefore, today's proposed rule would affect authorized
State and Tribal NPDES permit programs. Under 40 CFR 123.62(e), any
existing approved section 402 permitting program must be revised to be
consistent with new program requirements within one year from the date
of promulgation, unless the NPDES-authorized State or Tribe must amend
or enact a statute to make the required revisions. If a State or Tribe
must amend or enact a statute to conform with today's proposed rule,
the revision must be made within two years of promulgation. States and
Tribes seeking new EPA authorization to implement the NPDES program
must comply with the requirements when authorization is requested.
EPA recognizes that some States have invested considerable effort
in developing section 316(b) regulations and implementing programs. EPA
is proposing regulations that would allow States to continue to use
these programs by including in this national rule a provision that
allows States to use their existing program if the State establishes
that such programs would achieve comparable environmental performance.
Specifically, the proposed rule would allow any State to demonstrate to
the Administrator that it has adopted alternative regulatory
requirements that would result in environmental performance within each
relevant watershed that is comparable to the reductions in impingement
mortality and entrainment that would be achieved under Sec. 125.94. EPA
invites comment on such ``functionally equivalent'' programs. In
particular, EPA invites comment on the proposed alternative and on
decision criteria EPA should consider in determining whether a State
program is functionally equivalent. If EPA adopts such an approach, the
Agency would also need to specify the process through which an existing
State program is evaluated and whether such process can occur under the
existing State program regulations or whether additional regulations to
provide the evaluation criteria are needed.
Finally, EPA invites comment on the role of restoration and habitat
enhancement projects as part of any ``functionally equivalent'' State
programs.
In addition to updating their programs to be consistent with
today's proposed rule, States and Tribes authorized to implement the
NPDES program would be required to implement the cooling water intake
structure requirements following promulgation of the proposed
regulations. The requirements would have to be implemented upon the
issuance or reissuance of permits containing the requirements of
proposed subpart J. Duties of an authorized State or Tribe under this
regulation may include
Review and verification of permit application materials,
including a permit applicant's determination of source waterbody
classification and the flow or volume of certain waterbodies at the
point of the intake;
Determination of the standards in Sec. 125.94 that apply
to the facility;
Verification of a permit applicant's determination of
whether it meets or exceeds the applicable performance standards;
Verification that a permit applicant's Design and
Construction Technology Plan demonstrates that the proposed alternative
technologies would reduce the impacts to fish and shellfish to levels
required;
Verification that a permit applicant meets the cost test
and that permit conditions developed on a site-specific basis are
justified based on documented costs, and, if applicable, benefits;
Verification that a permit applicant's proposed
restoration measures would meet regulatory standards;
Development of draft and final NPDES permit conditions for
the applicant implementing applicable section 316(b) requirements
pursuant to this rule; and
Ensuring compliance with permit conditions based on
section 316(b) requirements.
EPA would implement these requirements where States or Tribes are
not authorized to implement the NPDES program. EPA also would implement
these requirements where States or Tribes are authorized to implement
the NPDES program but do not have sufficient authority to implement
these requirements.
G. Are Permits for Existing Facilities Subject to Requirements Under
Other Federal Statutes?
EPA's NPDES permitting regulations at 40 CFR 122.49 contain a list
of Federal laws that might apply to federally issued NPDES permits.
These include the Wild and Scenic Rivers Act, 16 U.S.C. 1273 et seq.;
the National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq.;
the Endangered Species Act, 16 U.S.C. 1531 et seq.; the Coastal Zone
Management Act, 16 U.S.C. 1451 et seq.; and the National Environmental
Policy Act, 42 U.S.C. 4321 et seq. See 40 CFR 122.49 for a brief
description of each of these laws. In addition, the provisions of the
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
1801 et seq., relating to essential fish habitat might be relevant.
Nothing in this proposed rulemaking would authorize activities that are
not in compliance with these or other applicable Federal laws.
H. Alternative Site-Specific Requirements
Today's proposed rule would establish national requirements for
Phase II existing facilities. EPA has taken into account all the
information that it was able to collect, develop, and solicit regarding
the location, design, construction, and capacity of cooling water
intake structures at these existing facilities. EPA concludes that
these proposed requirements would reflect the best technology available
for minimizing adverse environmental impact on a national level. In
some cases, however, data that could affect the economic practicability
of requirements might not have been available to be considered by EPA
during the development of today's proposed rule. Therefore, where a
facility's cost would be significantly greater than the cost considered
by EPA in establishing the applicable performance standards, proposed
Sec. 125.94(c)(2) would require the Director
[[Page 17181]]
to make a site-specific determination of the best technology available
based on less costly design and construction technologies, operational
measures, and/or restoration measures. Less costly technologies or
measures would be allowable to the extent justified by the
significantly greater cost. Similarly, Sec. 125.94(c)(3) provides that
where an existing facility's cost would be significantly greater than
the benefits of complying with the applicable performance standards,
the Director must make a site-specific determination of the best
technology available based on less costly technologies or measures.
These provisions would allow the Director, in the permit development
process, to set alternative best technology available requirements that
are less stringent than the nationally applicable requirements.
Under proposed Sec. 125.94(c), alternative requirements would not
be granted based on a particular facility's ability to pay for
technologies that would result in compliance with the requirements of
proposed Sec. 125.94. Thus, so long as the costs of compliance are not
significantly greater than the costs EPA considered and determined to
be economically practicable, and are not significantly greater than the
benefits of compliance with the proposed performance standards, the
ability of an individual facility to pay in order to attain compliance
with the rule would not support the imposition of alternative
requirements. Conversely, if the costs of compliance for a particular
facility are significantly higher than those considered by EPA in
establishing the presumptive performance standards, then regardless of
the facility's ability to afford the significantly higher costs, the
Director should make a site-specific determination of best technology
available based on less costly technologies and measures to the extent
justified by the significantly higher costs.
The burden is on the person requesting the site-specific
alternative requirement to demonstrate that alternative requirements
should be imposed and that the appropriate requirements of proposed
Sec. 125.94 have been met. The person requesting the site-specific
alternative requirements should refer to all relevant information,
including the support documents for this proposed rulemaking, all
associated data collected for use in developing each requirement, and
other relevant information that is kept on public file by EPA.
VIII. Economic Analysis
EPA used an electricity market model, the Integrated Planning Model
2000 (IPM 2000), to identify potential economic and operational impacts
of various regulatory options considered for proposal. Analyzed
characteristics include changes in capacity, generation, revenue, cost
of generation, and electricity prices. These changes are identified by
comparing two scenarios: (1) The base case scenario (in the absence of
Section 316(b) regulation); and (2) the post compliance scenario (after
the implementation of Section 316(b) regulation). The results of these
comparisons were used to assess the impacts of the proposed rule and
two of the five alternative regulatory options considered by EPA. The
following sections present EPA's economic analyses of the proposed rule
and the alternative options.
A. Proposed Rule
Today's proposed rule would provide three compliance options for
Phase II existing facilities. Such facilities could: (1) Demonstrate
that their existing cooling water intake structure design and
construction technologies, operational measures, and/or restoration
measures meet the proposed performance standards; (2) implement design
and construction technologies, operational measures, and/or restoration
measures that meet the proposed performance standards; or (3) where the
facility can demonstrate that its costs of complying with the proposed
performance standards are significantly greater than either the costs
EPA considered in establishing these requirements or the benefits of
meeting the performance standards, seek a site-specific determination
of best technology available to minimize adverse environmental impact.
The applicable performance standards are described in Section VI.A.,
above.
Section VIII.A.1 below presents the analysis of national costs
associated with the proposed section 316(b) Phase II Rule. Section
VIII.A.2 presents a discussion of the impact analysis of the proposed
rule at the market level and for facilities subject to this rule.
1. Costs
EPA estimates that facilities subject to this proposed rule will
incur annualized post-tax compliance costs of approximately $178
million. These costs include one-time technology costs of complying
with the rule, annual operating and maintenance costs, and permitting
costs (including initial permit costs, annual monitoring costs, and
repermitting costs). This cost estimate does not include the costs of
administering the rule by permitting authorities and the federal
government. Also excluded are compliance costs for 11 facilities that
are projected to be baseline closures (see discussion below). Including
compliance costs for projected baseline closure facilities would result
in a total annualized compliance cost of approximately $182 million.
2. Economic Impacts
EPA used an electricity market model to account for the dynamic
nature of the electricity market when analyzing the potential economic
impacts of Section 316(b) regulation. The IPM 2000 is a long-term
general equilibrium model of the domestic electric power market which
simulates the least-cost dispatch solution for all generation assets in
the market given a suite of user-specified constraints.\71\ The impacts
of compliance with a given regulatory option are defined as the
difference between the model output for the base case scenario and the
model output for the post-compliance scenario.\72\
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\71\ For a more detailed description of IPM 2000 see the EBA
document.
\72\ The IPM model simulates electricity market function for a
period of 25 years. Model output is provided for five user specified
model run years. EPA selected three run years to provide output
across the ten year compliance period for the rule. Analyses of
regulatory options are based on output for model run years which
reflect a scenario in which all facilities are operating in their
post-compliance condition. Options requiring the installation of
cooling towers are analyzed using output from model run year 2013.
All other options are analyzed using output from model run years
2008. See the EBA document for a detailed discussion of IPM 2000
model run years.
---------------------------------------------------------------------------
Due to the lead time required in running an integrated electricity
market model, EPA first completed an electricity market model analysis
of two options with costs higher than those in today's proposed option:
the ``Closed-Cycle, Recirculating Wet Cooling based on Waterbody type
and Intake Capacity'' Option (waterbody/capacity-based option) and the
``Closed-Cycle, Recirculating Wet Cooling Everywhere'' Option (all
cooling towers option). Both of the analyzed options are more stringent
in aggregate than the proposed rule and provide a ceiling on its
potential economic impacts. Because of limited time after final
definition of the rule as proposed herein, EPA was unable to rerun the
IPM model with an analytic option that completely matches the proposed
rule's specifications. As a result, EPA adopted a two-step approach for
the aggregate impact analysis. First, EPA identified that for certain
regional electricity markets that
[[Page 17182]]
do not have any facilities costed with a closed-cycle recirculating
cooling water system, the waterbody/capacity-based option, as analyzed,
matches the technology compliance requirements of the proposed
rule.\73\ These are the North American Electric Reliability Council
(NERC) regions that do not border oceans and estuaries: ECAR, MAIN,
MAPP, SPP.\74\ Accordingly, EPA was able to interpret the results of
the IPM analysis for the waterbody/capacity-based option for these four
NERC regions as representative of the proposed rule in these regions.
As shown below, EPA found very small or no impacts in these NERC
regions. Second, EPA identified and compared data relevant to
determination of rule impacts for these four NERC regions and the
remaining NERC regions for which the IPM analysis would not be
indicative of the proposed rule. Finding no material differences in
these underlying characteristics between the two groups of NERC
regions, EPA concluded that the finding of no significant impacts from
the IPM-based analysis of the four NERC regions identified above, could
also be extended to the remaining six NERC regions. Therefore, EPA
believes that the proposed option, which would apply the same
requirements (e.g., based on technologies such as fine mesh screens,
filter fabric barrier nets, or fish return systems) to facilities in
all NERC regions, would, in total, have very small or no impacts. The
remainder of this section presents an assessment of the impacts of the
proposed rule using the market and Phase II existing facility-level
results from the IPM 2000 analysis of the alternative waterbody/
capacity-based option for these four NERC regions. A more detailed
analysis of all NERC regions under the alternative waterbody/capacity-
based option is presented in Section VIII.B.2 below.
---------------------------------------------------------------------------
\73\ While the compliance requirements are identical under the
proposed rule and the alternative waterbody/capacity-based option,
permitting costs associated with the proposed rule are higher than
those for the alternative option analyzed using the IPM 2000. The
cost differential averages approximately 30 percent of total
compliance costs associated with the alternative option. Despite the
higher permitting costs, EPA concludes that the results of the
alternative analysis are representative of impacts that could be
expected under the proposed rule.
\74\ ECAR (East Central Area Reliability Coordination Agreement)
includes the states of Kentucky, Ohio, and West Virginia, and
portions of Michigan, Maryland, Virginia, and Pennsylvania. MAIN
(Mid-America Interconnected Network, Inc.) includes the state of
Illinois and portions of Missouri, Wisconsin, Iowa, Minnesota and
Michigan. MAPP (Mid-Continent Area Power Pool) includes the states
of Nebraska and North Dakota, and portions of Iowa, South Dakota,
Wisconsin, Montana and Minnesota. SPP (Southwest Power Pool)
includes the states of Kansas and Oklahoma, and portions of
Arkansas, Louisiana, Texas, and New Mexico.
---------------------------------------------------------------------------
i. Market Level Impacts
This section presents the results of the IPM 2000 analysis for the
four NERC regions with no cooling tower requirements under the
alternative waterbody/capacity-based option: ECAR, MAIN, MAPP, and
SPP.\75\ As indicated above, the compliance requirements of this
analyzed option are identical to those of the proposed rule for these
four regions. Given the similarity in compliance requirements and the
limited electricity exchanges between NERC regions modeled in IPM 2000,
EPA concludes that the impacts modeled for the alternative waterbody/
capacity-based option would be representative of potential impacts
associated with the proposed rule for each of these regions.
---------------------------------------------------------------------------
\75\ The market level results include results for all units
located in each of the four NERC regions including facilities both
in scope and out of scope of the alternative waterbody/capacity-
based option.
---------------------------------------------------------------------------
Five measures developed from the IPM 2000 output are used to assess
market level impacts associated with Section 316(b) regulation: (1)
Total capacity, defined as the total available capacity of all
facilities not identified as either baseline closures or economic
closures resulting from the regulatory option; (2) new capacity,
defined as total capacity additions from new facilities; (3) total
generation, calculated as the sum of generation from all facilities not
identified as baseline closures or economic closures resulting from the
regulatory option; (4) production costs per MWh of generation,
calculated as the sum of total fuel and variable O&M costs divided by
total generation; and (5) energy prices, defined as the prices received
by facilities for the sale of electricity. Exhibit 6 presents the base
case and post compliance results for each of these economic measures.
Exhibit 6.--Market-Level Impacts of the Proposed Rule
[Four Nerc Regions; 2008]
----------------------------------------------------------------------------------------------------------------
NERC region Base case Option 1 Difference % Change
----------------------------------------------------------------------------------------------------------------
(ECAR)
Total Capacity (MW)............................. 118,390 118,570 180 0.2
New Capacity (MW)............................... 8,310 8,490 180 2.2
Total Generation (GWh).......................... 649,140 649,140 0 0.0
Production Costs ($2001/MWh).................... $12.53 $12.53 $0.00 0.0
Energy Prices ($2001/MWh)....................... $22.58 $22.56 ($0.02) -0.1
----------------------------------------------------------------------------------------------------------------
(MAIN)
Total Capacity (MW)............................. 60,230 60,210 -20 0.0
New Capacity (MW)............................... 6,540 6,530 -10 -0.2
Total Generation (GWh).......................... 284,920 284,860 -60 0.0
Production Costs ($2001/MWh).................... $12.29 $12.29 $0.00 0.0
Energy Prices ($2001/MWh)....................... $22.54 $22.55 $0.01 0.0
----------------------------------------------------------------------------------------------------------------
(MAPP)
Total Capacity (MW)............................. 35,470 35,470 0 0.0
New Capacity (MW)............................... 2,760 2,760 0 0.0
Total Generation (GWh).......................... 179,110 179,170 60 0.0
Production Costs ($2001/MWh).................... $11.67 $11.68 $0.01 0.0
Energy Prices ($2001/MWh)....................... $22.25 $22.20 ($0.05) -0.2
----------------------------------------------------------------------------------------------------------------
(SPP)
Total Capacity (MW)............................. 49,110 49,110 0 0.0
New Capacity (MW)............................... 160 160 0 0.0
[[Page 17183]]
Total Generation (GWh).......................... 217,670 217,750 80 0.0
Production Costs ($2001/MWh).................... $14.43 $14.43 $0.00 0.0
Energy Prices ($2001/MWh)....................... $25.00 $24.99 ($0.01) 0.0%
----------------------------------------------------------------------------------------------------------------
The results presented in Exhibit 6 reveal no significant changes in
any of the economic measures used to assess the impacts of the
alternative waterbody/capacity-based option in any of the four NERC
regions.\76\ One region, SPP, experienced no change of any consequence
to any of the five impact measures as a result of the alternative
option. Post compliance changes in total capacity and new capacity were
experienced in both ECAR and MAIN. Each of these measures decreased by
insignificant amounts in MAIN while ECAR experienced a slight increase
of 0.2 percent in total capacity and a slightly larger increase of 2.2
percent in new capacity additions. While the slight increases in total
and new capacity seen in ECAR did not result in changes in either
generation or production costs, energy prices did decrease slightly.
Energy prices also decreased slightly in MAPP despite no appreciable
difference in any other measure for that region. Based on these
results, EPA concludes that there are no significant impacts associated
with the proposed section 316(b) Phase II Rule in these regions.
---------------------------------------------------------------------------
\76\ In addition to the five impact measures presented in
Exhibit 6, EPA utilized IPM 2000 to identify changes in other
economic and operational characterisitcs, including revenues,
average fuel costs, changes in repowering, and the number and
capacity of facilities identfiied as economic closures. The IPM
results showed no economic closures and no changes in repowering
associated with compliance with the alternative waterbody/capacity-
based option in any of the four NERC regions presented in Exhibit 6.
For a detailed discussion of the results of the IPM 2000 analysis of
the alternative waterbody/capacity based option see section VIII.B.2
and the EBA document.
---------------------------------------------------------------------------
While the waterbody/capacity-based option, as analyzed in IPM,
matches the technology specifications of the proposed rule for the four
regions discussed above, this is not the case for the other six NERC
regions: ERCOT, FRCC, MAAC, NPCC, SERC, and WSCC.\77\ Under the
waterbody/capacity-based option, as analyzed, some facilities in these
regions were analyzed with more stringent and costly compliance
requirements, including recirculating wet cooling towers, than would
required by the proposed rule. As a result, the IPM waterbody/capacity-
based option overstates the expected rule impacts in these remaining
six regions. To provide an alternative approach to estimating the
rule's impacts in these regions, EPA compared characteristics relevant
to the determination of rule impacts for the four NERC regions
explicitly analyzed in the IPM analysis and the six NERC regions for
which the IPM analysis otherwise overstates impacts. EPA found no
material differences between the two groups of regions in (1) the
percentage of total base case capacity subject to the proposed rule,
(2) the ratio of the annualized compliance costs of the proposed rule
to total base case generation, and (3) the compliance requirements of
the proposed rule (see Exhibit 7 below). EPA therefore concludes that
the results for the four regions would be representative of the other
NERC regions as well.\78\
---------------------------------------------------------------------------
\77\ The six other NERC regions are: Electric Reliability
Council of Texas (ERCOT), Florida Reliability Coordinating Council
(FRCC), Mid Atlantic Area Council (MAAC), Northeast Power
Coordination Council (NPCC), Southeastern Electricity Reliability
Council (SERC), and Western Systems Coordinating Council (WSCC).
\78\ The comparison presented in Exhibit 7 includes information
for facilities modeled in IPM 2000 only. Of the 539 existing
facilities subject to the section 316(b) Phase II rule, nine are not
modeled in the IPM 2000: Three facilities are in Hawaii, and one is
in Alaska. Neither state is represented in the IPM 2000. One
facility is identified as an ``Unspecified Resource'' and does not
report on any EIA forms. Four facilities are on-site facilities that
do not provide electricity to the grid. The 530 existing facilities
were weighted to account for facilities not sampled and facilities
that did not respond to the EAP's industry survey and thus represent
a total of 540 facilities industry-wide.
Exhibit 7.--Comparison of Compliance Requirements by NERC Region--2008
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percentage of facilities subject to each compliance requirement--proposed rule
Total -------------------------------------------------------------------------------
Percent of annualized Both
NERC region total capacity compliance impingement Entrainment Impingement
subject to the cost per MWh Total and controls only controls only None
rule generation facilities entrainment (percent) (percent) (percent)
($2001) controls
--------------------------------------------------------------------------------------------------------------------------------------------------------
ECAR.................................... 66.5 0.05 99 32.4 7.1 23.9 36.6
MAIN.................................... 60.9 0.04 49 30.6 6.1 22.7 40.7
MAPP.................................... 42.1 0.04 42 9.5 7.1 28.5 54.8
SPP..................................... 40.7 0.03 32 12.6 0.0 46.9 40.5
Average................................. 57.1 0.04 .............. 24.8 5.8 27.8 41.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
ERCOT................................... 57.8 0.04 51 2.0 11.8 60.8 25.5
FRCC.................................... 49.8 0.07 30 40.0 13.3 16.7 30.0
MAAC.................................... 50.7 0.06 43 26.2 19.1 28.8 25.9
NPCC.................................... 49.6 0.08 54 22.1 34.2 16.5 27.1
SERC.................................... 53.8 0.03 95 16.8 7.4 31.6 44.2
WSCC.................................... 18.3 0.02 33 52.9 3.0 16.6 27.5
Average................................. 43.6 0.04 .............. 22.8 14.6 30.3 32.3
Average of All NERC Regions............. 47.7 0.04 .............. 23.6 10.9 29.3 36.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 17184]]
Exhibit 7 indicates that, on average, the percentage of total
capacity is slightly higher and the percentage of facilities subject to
the proposed rule is slightly lower in the four analyzed NERC regions
compared to the other six regions. In addition, the average annualized
compliance costs per MWh of generation is very similar in all NERC
regions. Based on this comparison and the limited amount electricity
exchanges between regions modeled in IPM 2000, EPA concluded that the
analysis of impacts under the proposed rule for the four NERC regions
is representative of likely impacts in the other NERC regions. As the
analysis of the impacts of the alternative waterbody/capacity-based
option revealed no significant impacts at the market level, EPA
concluded that there would be no significant impacts on any NERC region
associated with the proposed rule.
ii. Impacts on Facilities Subject to the Proposed Rule
This section presents the results of the facility impact analysis
for the proposed rule, again using the IPM 2000 analysis of the
alternative waterbody/capacity-based option for the four NERC regions
where the compliance requirements of the proposed rule and the analyzed
option are identical.\79\ EPA used the IPM 2000 results to analyze two
potential facility level impacts of the proposed section 316(b) Phase
II Rule: (1) potential changes in the economic and operational
characteristics of the group of Phase II existing facilities and (2)
potential changes to individual facilities within the group of Phase II
existing facilities.
---------------------------------------------------------------------------
\79\ These results only pertain to the steam electric component
of the Phase II existing facilities and thus do not provide complete
measures for facilities with both steam electric and non-steam
electric generation.
---------------------------------------------------------------------------
EPA used output from model run year 2008 to develop four measures
used to identify changes in the economic and operational
characteristics of the group of Phase II existing facilities. These
measures include: (1) Total capacity, defined as the total available
capacity of all facilities not identified as either baseline closures
or economic closures resulting from the regulatory option; (2) total
generation, calculated as the sum of generation from all facilities not
identified as baseline closures or economic closures resulting from the
regulatory option; (3) revenues, calculated as the sum of energy and
capacity revenues; and (4) production costs per MWh of generation,
calculated as the sum of total fuel and variable O&M costs divided by
total generation. Exhibit 8 presents the base case and post compliance
results for each of these economic measures.
Exhibit 8.--Impacts on Phase II Existing Facilities of the Proposed Rule
[Four NERC Regions; 2008]
----------------------------------------------------------------------------------------------------------------
Base case Proposed rule Difference % Change
----------------------------------------------------------------------------------------------------------------
(ECAR)
Total Capacity (MW)............................. 78,710 78,710 0.00 0.0
Total Generation (GWh).......................... 515,020 515,030 10.00 0.0
Revenues (Million $2001)........................ $17,650 $17,650 0.00 0.0
Production Costs ($2001/MWh).................... $12.34 $12.34 0.00 0.0
(MAIN)
Total Capacity (MW)............................. 36,700 36,700 0.00 0.0
Total Generation (GWh).......................... 226,360 226,350 -10.00 0.0
Revenues (Million $2001)........................ $7,890 $7,890 0.00 0.0
Production Costs ($2001/MWh).................... $11.74 $11.74 0.00 0.0
(MAPP)
Total Capacity (MW)............................. 14,920 14,920 0.00 0.0
Total Generation (GWh).......................... 103,430 103,470 40.00 0.0
Revenues (Million $2001)........................ $3,420 $3,420 0.00 0.0
Production Costs ($2001/MWh).................... $11.78 $11.78 0.00 0.0
(SPP)
Total Capacity (MW)............................. 19,990 19,990 0.00 0.0
Total Generation (GWh).......................... 112,250 112,350 100.00 0.1
Revenues (Million $2001)........................ $3,930 $3,930 0.00 0.0
Production Costs ($2001/MWh).................... $13.32 $13.34 0.01 0.1
----------------------------------------------------------------------------------------------------------------
Note: Total capacity, total generation, and revenues have been rounded to the closest 10.
The results for the four NERC regions presented in Exhibit 8 reveal
no significant changes in any of the economic measures used to assess
the impacts of the alternative waterbody/capacity-based option to the
group of Phase II existing facilities. None of the four NERC regions
analyzed experienced any post compliance change in either capacity or
revenues. Further, while there were some variations in total generation
derived from Phase II existing facilities in these regions, no region
experienced an increase or decrease in generation of more than one
tenth of one percent. Similarly, there was no significant change to the
production costs of Phase II existing facilities in any of the analyzed
regions. Given EPA's earlier noted finding of no material differences
between these four NERC regions and the remaining six NERC regions in
important characteristics relevant to rule impacts, EPA again concluded
that the finding of no significant impact for these four regions could
be extended to the remaining six regions. As a result, EPA concludes
that the proposed rule will not pose significant impacts in any NERC
region.
While the group of Phase II existing facilities as a whole is not
expected to experience impacts under the proposed rule, it is possible
that there would be shifts in economic performance among individual
facilities subject to this rule. To examine the range of possible
impacts to individual Phase II existing facilities, EPA analyzed
facility-specific changes in generation, production costs, capacity
utilization, revenue, and
[[Page 17185]]
operating income. Exhibit 9 presents the number of Phase II existing
facilities located in the four analyzed NERC regions by category of
change for each economic measure.
Exhibit 9.--Operational Changes at Phase II Existing Facilities from the Proposed Rule
[Four NERC Regions; 2008]
----------------------------------------------------------------------------------------------------------------
Reduction Increase
Economic measures ---------------------------------------------------- No change
0-1% 1% 0-1% 1%
----------------------------------------------------------------------------------------------------------------
Change in Generation........................... 2 0 1 2 218
Change in Production Costs..................... 0 0 27 0 178
Change in Capacity Utilization................. 2 0 2 1 218
Change in Revenue.............................. 56 0 44 2 121
Change in-Operating Income..................... 66 0 58 1 98
----------------------------------------------------------------------------------------------------------------
Note: IPM 2000 output for run year 2008 provides data for 223 Phase II existing facilities located in the four
NERC regions with identical compliance requirements under the alternative option and proposed rule. Eighteen
facilities had zero generation in either the base case or post compliance scenario. As such it was not
possible to calculate production costs in dollars per MWh of generation for these facilities. For all
measures, the percentages used to assign facilities to impact categories have been rounded to the nearest 10th
of a percent.
Exhibit 9 shows that there is almost no shift in economic activity
between facilities subject to this rule in the four analyzed NERC
regions. No facility experiences a decrease in generation, capacity
utilization, revenues, or operating income, or an increase in
production costs of more than one percent. These findings, together
with the findings from the comparison of compliance costs and
requirements across all regions above, further confirm EPA's conclusion
that the proposed rule would not result in economic impacts to Phase II
existing facilities located in the four analyzed NERC regions.
B. Alternative Regulatory Options
EPA is considering four alternative options that would establish
substantive requirements for best technology available for minimizing
adverse environmental impact by specific rule rather than by site-
specific analysis. These include: (1) Requiring existing facilities
located on estuaries and tidal rivers to reduce intake capacity
commensurate with the use of a closed-cycle recirculating cooling
system; (2) requiring all Phase II existing facilities to reduce intake
capacity commensurate with the use of closed-cycle, recirculating
cooling systems; (3) requiring all Phase II existing facilities to
reduce impingement and entrainment to levels established based on the
use of design and construction (e.g., fine mesh screens, fish return
systems) or operational measures; and (4) requiring all existing
facilities to reduce their intake capacity to a level commensurate with
the use of a dry cooling system.
EPA conducted an electricity market model analysis of alternative
options one and two as defined above. Section VIII.B.1 below presents
the national costs of these two alternative regulatory options
considered by EPA. Section VIII.B.2 discusses the impacts associated
with these two alternative regulatory options.
1. Costs
EPA estimated total national annualized post-tax cost of compliance
for two alternative options: (1) The ``Intake Capacity Commensurate
with Closed-Cycle, Recirculating Cooling System based on Waterbody
Type/Capacity'' Option (waterbody/capacity-based option) and (2) the
``Intake Capacity Commensurate with Closed-Cycle, Recirculating Cooling
System for All Facilities'' Option (all closed-cycle option). The
estimated total annualized post-tax cost of compliance for the
waterbody/capacity-based option is approximately $585 million. EPA
further estimates that the total annualized post-tax cost of compliance
for the all cooling tower option is approximately $2.26 billion. Not
included in either estimate are 9 facilities that are projected to be
baseline closures. Including compliance costs for these 9 facilities
would increase the total cost of compliance with the waterbody/
capacity-based option to approximately $595 million, and to roughly
$2.32 billion for the all cooling tower option.
2. Economic Impacts
As stated in Section VIII.A.2 above, EPA used the IPM 2000
electricity market model to assess impacts associated with the proposed
rule and regulatory options. These impacts are assessed by comparing
model output for the base case and post compliance scenarios for each
regulatory option. In support of this rule, EPA completed an
electricity market model analysis of two post compliance scenarios: (1)
The ``Intake Capacity Commensurate with Closed-Cycle, Recirculating
Cooling System based on Waterbody Type/Capacity'' Option (waterbody/
capacity-based option) and (2) the ``Intake Capacity Commensurate with
Closed-Cycle, Recirculating Cooling System for All Facilities'' Option
(all closed-cycle option). This section presents the results of the IPM
2000 analysis of these two post-compliance scenarios.
a. Intake Capacity Commensurate With Closed-Cycle, Recirculating
Cooling System Based on Waterbody Type/Capacity
This section presents the market level and Phase II existing
facility level impacts of the alternative waterbody/capacity-based
option. This option would require facilities that withdraw water from
an estuary, tidal river, or ocean and that meet certain intake flow
requirements, to reduce their intake capacity to a level that can be
attained by a closed-cycle, recirculating cooling system. This
requirement would be met within five to ten years of promulgation of
the final rule (2004 to 2012) depending on when a permittee's first
NPDES permit after promulgation expires. The impacts of compliance with
this option are calculated using base case and post compliance results
for model run year 2013. This run year reflects the long-term
operational changes of the regulatory option with all in-scope
facilities operating in their post compliance condition.
(1) Market Level Impacts
EPA used five measures to identify changes to economic and
operational characteristics of existing facilities and assess market
level impacts due to compliance with the alternative waterbody/
capacity-based option: (1) Capacity retirements, calculated as the
total capacity of facilities identified as economic closures due to the
alternative
[[Page 17186]]
option; (2) capacity retirements as a percentage of baseline capacity;
(3) post compliance changes in total production costs per MWh, where
production costs are calculated as the sum of total fuel and variable
O&M costs divided by total generation; (4) post compliance changes in
energy price, where energy prices are defined as the prices received by
facilities for the sale of electric generation; and (5) post compliance
changes in capacity price, where capacity prices are defined as the
price paid to facilities for making unloaded capacity available as
reserves to ensure system reliability. Exhibit 10 presents the market
level summary of these impact measures by NERC region.
Exhibit 10.--Market-Level Impacts of the Alternative Waterbody/Capacity-Based Option (2013)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Change in Change in Change in
Baseline Capacity Closures as % production energy price capacity price
NERC region capacity (MW) closures (MW) of baseline cost ($/MWh) ($/MWh) ($/MWh)
capacity (percent) (percent) (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
ECAR.................................................... 122,080 0 0.0 0.0 0.0 -0.2
ERCOT................................................... 80,230 0 0.0 0.0 0.0 -0.2
FRCC.................................................... 52,850 0 0.0 0.4 0.5 -2.0
MAAC.................................................... 65,270 0 0.0 0.7 0.6 -1.5
MAIN.................................................... 61,380 0 0.0 0.2 0.1 -0.1
MAPP.................................................... 36,660 0 0.0 0.0 0.0 -0.1
NPCC.................................................... 74,080 840 1.1 0.5 -0.3 13.2
SERC.................................................... 205,210 0 0.0 0.1 0.0 0.0
SPP..................................................... 51,380 0 0.0 0.0 0.0 0.0
WSCC.................................................... 173,600 2,170 1.3 1.9 -0.1 2.0
-----------------------------------------------------------------------------------------------
Total............................................... 922,740 3,010 0.3 0.5 n/a n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Baseline Capacity and Closure Capacity have been rounded to the nearest 10 MW.
Exhibit 10 shows that with the exception of an increase in the
capacity price paid in NPCC, no significant change in market-level
operation would result from the alternative waterbody/capacity-based
option. Two of the ten NERC regions modeled, NPCC and WSCC, would
experience economic closures of existing facilities as a result of the
alternative option. However, these closures represent an insignificant
percentage of total baseline capacity in these regions (1.1 percent and
1.3 percent respectively). Of the capacity retirements in NPCC, 400 MW
would be nuclear capacity and 440 MW would be oil/gas-fired capacity.
The vast majority of the closures in WSCC, 2,150 MW, represents nuclear
capacity. Six NERC regions would experience slight increases in
production costs per MWh. Production cost per MWh in WSCC would
increase the most, by almost 2 percent. In addition, three NERC regions
would experience a slight increase in energy price while NPCC and WSCC
both would both see a slight decrease in post compliance energy prices
due to the economic closure of existing capacity. Further, NPCC and
WSCC are the only regions that would experience an increase in capacity
price. The increase in capacity prices would be the highest in NPCC
with 13.2 percent.
(2) Phase II Existing Facility Level Impacts
The IPM 2000 results from model run year 2013 were used to analyze
two potential facility level impacts associated with the alternative
waterbody/capacity-based option: (1) Potential changes in the economic
and operational characteristics of the group of Phase II existing
facilities and (2) potential changes to individual facilities within
the group of Phase II existing facilities. EPA analyzed economic
closures and changes in production costs to assess impacts to all Phase
II existing facilities resulting from the alternative option. Exhibit
11 below presents the results from this analysis, by NERC region.
Exhibit 11.--Impacts on Phase II Existing Facilities of the Alternative Waterbody/Capacity-Based Option (2013)
----------------------------------------------------------------------------------------------------------------
Closure Analysis
------------------------------------------------ Change in
NERC region Baseline Percent of production
capacity (MW) # Facilities Capacity (MW) baseline cost ($/MWh)
capacity (percent)
----------------------------------------------------------------------------------------------------------------
ECAR............................ 78,680 0 0 0.0 -0.1
ERCOT........................... 42,330 0 0 0.0 0.0
FRCC............................ 24,460 0 0 0.0 0.7
MAAC............................ 30,310 0 0 0.0 0.0
MAIN............................ 33,650 0 0 0.0 0.0
MAPP............................ 14,900 0 0 0.0 0.0
NPCC............................ 36,360 (1) 650 1.8 -0.2
SERC............................ 100,780 0 0 0.0 0.0
SPP............................. 19,990 0 0 0.0 0.0
WSCC............................ 30,110 2 2,170 7.2 3.9
-------------------------------------------------------------------------------
Total....................... 411,570 1 2,820 0.7 -0.3
----------------------------------------------------------------------------------------------------------------
Note: Baseline Capacity and Closure Capacity have been rounded to the nearest 10 MW.
[[Page 17187]]
Exhibit 11 shows that impacts under the waterbody/capacity-based
option would be small. Similar to the market level, WSCC and NPCC are
the only regions that would experience capacity retirements at Phase II
existing facilities under this regulatory option. It should be noted
that retirements presented in these exhibits are net retirements,
accounting for both a potential increase and decrease in the number of
retirements, post compliance. For example, NPCC is projected to
experience a capacity loss of 650 MW under this option. However, one
facility fewer than under the base case is projected to retire: Two
facilities that would have retired in the baseline remain operational
under the analyzed option, because their compliance costs are low
compared to that of other facilities in the same region and they would
therefore become relatively more profitable. WSCC is the other region
with projected Phase II retirements under this option. The combined
capacity retirements of both regions would be 2,820 MW, or 0.7 percent
of all Phase II capacity.
While the group of Phase II existing facilities as a whole is not
expected to experience impacts under the waterbody/capacity-based
option, it is possible that there would be shifts in economic
performance among individual facilities subject to this rule. To assess
potential distributional effects, EPA analyzed facility-specific
changes in generation, production costs, capacity utilization, revenue,
and operating income. Exhibit 12 presents the total number of Phase II
existing facilities with different degrees of change in each of these
measures. \80\
---------------------------------------------------------------------------
\80\ Note that the facility-level exhibit excludes in-scope
facilities with significant status changes (including baseline
closures, avoided closures, and facilities that repower) to allow
for a better comparison of operational changes as a result of the
analyzed option. Status changes are discussed separately in this
section and the supporting Economic and Benefits Analysis Document.
Exhibit 12.--Operational Changes at Phase II Existing Facilities From the Waterbody/Capacity-Based Option (2013)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reduction Increase
Economic measures ------------------------------------------------------------------------------ No change
0-1% 1-3% >3% 0-1% 1-3% >3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Change in Generation......................................... 7 17 21 4 4 9 444
Change in Production Costs................................... 6 5 1 13 16 3 380
Change in Capacity Utilization............................... 10 7 12 7 3 5 462
Change in Revenue............................................ 57 43 17 48 15 20 306
Change in Operating Income................................... 75 42 10 46 15 22 296
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: IPM 2000 output for model run year 2013 provides output for 506 Phase II existing facilities. Eighty-two facilities had zero generation in either
the base case or post compliance scenario. As such it was not possible to calculate production costs in dollars per MWh of generation for these
facilities. For all measures percentages used to assign facilities to impact categories have been rounded to the nearest 10th of a percent.
Exhibit 12 indicates that the majority of Phase II existing
facilities would not experience changes in generation, production
costs, or capacity utilization due to compliance with the alternative
option. Of those facilities with changes in post compliance generation
and capacity utilization, most would experience decreases in these
measures. In addition, while approximately 40 percent of Phase II
existing facilities would experience an increase or decrease in
revenues and/or operating income, the magnitude of such changes would
be small.
Under the alternative waterbody/capacity-based option, facilities
withdrawing water from an estuary, tidal river, or ocean are required
to meet standards for reducing impingement mortality and entrainment
based on the performance of wet cooling towers. These facilities would
have the choice to comply with Track I or Track II requirements.
Facilities that choose to comply with Track I would be required to
reduce their intake flow to a level commensurate with that which can be
attained by a closed-cycle, recirculating system. Facilities that
choose to comply with Track II would have to demonstrate that
alternative technologies would reduce impingement and entrainment to
comparable levels that would be achieved with a closed-cycle
recirculating system. EPA's estimation of impacts associated with the
alternative waterbody/capacity-based option is based on an electricity
market model analysis that assumes all facilities withdrawing water
from an estuary, tidal river, or ocean choose to comply with the
requirements of Track I. While these impacts represent the worst case
scenario under this option, it is reasonable to assume that a number of
facilities would choose to comply with the requirements of Track II.
EPA therefore also considered an additional scenario in which 33 of the
54 existing facilities costed with a cooling tower, or 61 percent,
would choose to comply with the requirements of Track II. While this
scenario was not explicitly analyzed, the absence of significant
impacts under the more expensive scenario, where all 54 facilities are
costed with cooling towers, suggests the alternative scenario would
have similar or lower impacts.
b. Intake Capacity Commensurate with Closed-Cycle, Recirculating
Cooling System for All Facilities
This section presents the market level and Phase II existing
facility level impacts of the closed-cycle, recirculating wet cooling
everywhere option. This option requires that existing facilities with a
design intake flow 50 MGD or more reduce their total design intake flow
to a level that can be attained by a closed-cycle recirculating cooling
water system. In addition, facilities in specified circumstances would
have to install design and construction technologies to minimize
impingement mortality and entrainment. Existing facilities would be
required to comply within five to ten years of promulgation of the
final rule (2004 to 2012) depending on when a permittee's first NPDES
permit after promulgation expires. The impacts of compliance with this
option are calculated using base case and post compliance results for
model run year 2013 in order to reflect the long-term operational
changes of the rule with all in-scope facilities operating in their
post compliance condition.
[[Page 17188]]
(1) Market Level Impacts
EPA used IPM output to examine changes to economic and operational
characteristics of existing facilities and to assess market level
impacts due to compliance with the all cooling towers option. The
measures used to assess market level responses to this option include
capacity retirements, capacity retirements as a percentage of baseline
capacity, and post compliance changes in total production costs per
MWh, energy price, and capacity price. Exhibit 13 presents the market
level summary of these impact measures by NERC region.
Exhibit 13.--Market-Level Impacts of the Alternative all cooling Towers Option (2013)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Closures as % of Change in Change in energy Change in
NERC region Baseline capacity Capacity closures baseline capacity production cost price ($/MWh) capacity price ($/
(MW) (MW) percent ($/MWh) percent percent MWh) percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
ECAR.................................. 122,080 2,190 1.8 2.4 1.9 0.7
ERCOT................................. 80,230 510 0.6 0.3 0.4 -0.1
FRCC.................................. 52,850 90 0.2 0.7 1.1 -3.8
MAAC.................................. 65,270 0 0.0 1.8 0.6 -0.2
MAIN.................................. 61,380 490 0.8 2.3 0.9 0.3
MAPP.................................. 36,660 0 0.0 1.0 0.1 3.0
NPCC.................................. 74,080 890 1.2 1.0 0.1 16.6
SERC.................................. 205,210 0 0.0 1.2 0.4 0.0
SPP................................... 51,380 20 0.0 0.5 0.3 -0.7
WSCC.................................. 173,600 2,370 1.4 1.9 0.1 1.0
-----------------------------------------------------------------------------------------------------------------
Total............................. 922,740 6,560 0.7 1.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Baseline Capacity and Closure Capacity have been rounded to the nearest 10 MW.
Exhibit 13 indicates that, of the ten NERC regions modeled, only
MAAC, MAPP, and SERC would not experience economic closures of existing
capacity as a result of the all cooling towers option. ECAR and WSCC
would experience the highest closures with 2,370 MW and 2,190 MW,
respectively. Of the 6,560 MW of capacity projected to retire as a
result of this option, 5,150 MW, or 79 percent, would be nuclear
capacity. The remainder would be oil/gas steam capacity. In addition,
every NERC region would experience an increase in both production costs
per MWh and energy prices. The increases in production costs would
range from a 0.3 percent increase in ERCOT to an increase of more than
2 percent in ECAR. The most substantial changes would occur in the
prices paid for capacity reserves. The highest capacity price increase
would occur in NPCC with 16.6 percent.
(2) Phase II Existing Facility Level Impacts:
As with the alternative waterbody/capacity-based option analysis,
the IPM 2000 results from model run year 2013 were used to analyze two
potential facility level impacts associated with the alternative all
cooling towers option: (1) Potential changes in the economic and
operational characteristics of the Phase II existing facilities and (2)
potential changes to individual facilities within the group of Phase II
existing facilities. EPA analyzed economic closures and changes in
production costs to assess impacts to all Phase II existing facilities
resulting from the alternative option. Exhibit 14 below presents the
results from this analysis, by NERC region.
Exhibit 14.--Impacts on Phase II Existing Facilities of the Alternative All Cooling Towers Option (2013)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Closure analysis Change in
--------------------------------------------------------- production Cost
NERC region Baseline capacity Percent of ($/MWh)
# Facilities Capacity (MW) baseline capacity (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
ECAR..................................................... 78,680 1 2,060 2.6 1.4
ERCOT.................................................... 42,330 1 420 1.0 -0.5
FRCC..................................................... 24,460 0 0 0.0 0.8
MAAC..................................................... 30,310 0 0 0.0 -1.0
MAIN..................................................... 33,650 0 490 1.5 1.4
MAPP..................................................... 14,900 0 0 0.0 1.3
NPCC..................................................... 36,360 0 720 2.0 -0.3
SERC..................................................... 100,780 0 0 0.0 1.0
SPP...................................................... 19,990 1 20 0.1 0.1
WSCC..................................................... 30,110 2 2,170 7.2 2.6
----------------------------------------------------------------------------------------------
Total................................................ 411,570 5 5,880 1.4 -0.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Baseline Capacity and Closure Capacity have been rounded to the nearest 10 MW.
Exhibit 14 shows that economic impacts under the all cooling tower
option would be higher than under the proposed rule and the alternative
waterbody/capacity-based option. Overall, seven Phase II existing
facilities would retire under this option. An additional two facilities
that retire in the base case would find it profitable to remain
operating under this option. The net retirements are therefore five
facilities and 5,880 MW of capacity. ECAR would experience the highest
impact with capacity closures of over 2,000 MW while WSCC would
experience the highest percentage retirement, with 7.2 percent of its
total Phase II capacity.
While the group of Phase II existing facilities as a whole is not
expected to experience impacts under the all
[[Page 17189]]
cooling towers option, it is possible that this option would lead to
shifts in economic performance among individual facilities subject to
this rule. To identify these shifts, EPA analyzed facility-specific
changes in generation, production costs, capacity utilization, revenue,
and operating income. Exhibit 15 presents the total number of Phase II
existing facilities with different degrees of change in each of these
measures.
Exhibit 15.--Operational Changes at Phase II Existing Facilities From the All Cooling Towers Option (2013)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reduction Increase
Economic Measures ------------------------------------------------------------------------------ No Change
0-1% 1-3% > 3% 0-1% 1-3% > 3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Change in Generation......................................... 18 251 53 3 4 22 151
Change in Production Costs................................... 16 12 4 64 257 17 51
Change in Capacity Utilization............................... 15 25 25 8 12 15 402
Change in Revenue............................................ 154 121 55 88 39 35 10
Change in-Operating Income................................... 118 160 50 83 47 29 15
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: IPM 2000 output for model run year 2013 provides output for 502 Phase II existing facilities. Eighty-one facilities had zero generation in either
the base case or post compliance scenario. As such it was not possible to calculate production costs in dollars per MWh of generation for these
facilities. For all measures percentages used to assign facilities to impact categories have been rounded to the nearest 10th of a percent.
Exhibit 15 indicates that under the all cooling tower option, more
facilities would experience changes in their operations and economic
performance than under the other two analyzed options. For example, 322
out of 502 facilities, or 64 percent, would experience a reduction in
generation.\81\ In addition, 328 facilities would experience a
reduction in operating income while 338 facilities would see their
production cost per MWh increase. However, some facilities subject to
today's rule would also benefit from regulation under this option: 162
facilities would experience an increase in revenues and 159 would
experience an increase in operating income.
---------------------------------------------------------------------------
\81\ As explained earlier, facilities with significant status
changes (including baseline closures, avoided closures, and
facilities that repower) are excluded from this comparison.
---------------------------------------------------------------------------
IX. Benefit Analysis
A. Overview of Benefits Discussion
This section presents EPA's estimates of the national environmental
benefits of the proposed section 316(b) regulations for Phase II
existing facilities. The benefits occur due to the reduction in
impingement and entrainment at cooling water intake structures affected
by this rulemaking. Impingement and entrainment kills or injures large
numbers of aquatic organisms. By reducing the levels of impingement and
entrainment, today's proposed rule would increase the number of fish,
shellfish, and other aquatic life in local aquatic ecosystems. This, in
turn, will directly and indirectly improve direct use benefits such as
those associated with recreational and commercial fisheries. Other
types of benefits, including ecological and nonuse values, would also
be enhanced. The text below provides an overview of types and sources
of benefits anticipated, how these benefits were estimated, what level
of benefits have been estimated for the proposed rule, and how benefits
compare to costs. Additional detail and EPA's complete benefits
assessment can be found in the EBA for the proposed rule.
B. The Physical Impacts of Impingement and Entrainment
Impingement and entrainment can have adverse impacts on many kinds
of aquatic organisms, including fish, shrimp, crabs, birds, sea
turtles, and marine mammals. Adult fish and larger organisms are
trapped against intake screens, where they often die from the immediate
impact of impingement, residual injuries, or from exhaustion and
starvation. Entrained organisms that are carried through the facility's
intakes die from physical damage, thermal shock, or chemical toxicity
induced by antifouling agents.
The extent of harm to aquatic organisms depends on species
characteristics, the environmental setting in which the facilities are
located, and facility location, design, and capacity. Species that
spawn in nearshore areas, have planktonic eggs and larvae, and are
small as adults experience the greatest impacts, since both new
recruits and reproducing adults are affected (e.g., bay anchovy in
estuaries and oceans). In general, higher impingement and entrainment
are observed in estuaries and near coastal waters because of the
presence of spawning and nursery areas. By contrast the young of
freshwater species are epibenthic and/or hatchel from attached egg
masses rather than existing as free-floating individuals, and therefore
freshwater species may be less susceptible to entrainment.
The likelihood of impingement and entrainment also depends on
facility characteristics. If the quantity of water withdrawn is large
relative to the flow of the source waterbody, a larger number of
organisms will be affected. Intakes located in nearshore areas tend to
have greater ecological impacts than intakes located offshore, since
nearshore areas are usually more biologically productive and have
higher concentrations of aquatic organisms.
In general, the extent and value of reducing impingement and
entrainment at existing cooling water intake structure locations
depends on intake and species characteristics that influence the
intensity, time, and spatial extent of interactions of aquatic
organisms with a facility's cooling water intake structure and the
physical, chemical, and biological characteristics of the source
waterbody. A once-through cooling system withdraws water from a source
waterbody, circulates it through the condenser system, and then
discharges the water back to the waterbody without recirculation. By
contrast, closed-cycle cooling systems (which are one part of the basis
for best technology available in some circumstances) withdraw water
from the source waterbody, circulate the water through the condensers,
and then sends it to a cooling tower or cooling pond before
recirculating it back through the condensers. Because cooling water is
recirculated, closed-cycle systems generally reduce the water flow from
72 percent to 98 percent, thereby using only 2 percent to 28 percent of
the water used by once-through systems. It is generally assumed that
this would result in a comparable reduction in impingement and
entrainment.
[[Page 17190]]
C. Impingement and Entrainment Impacts and Regulatory Benefits are
Site-Specific
Site-specific information is critical in predicting benefits,
because studies at existing facilities demonstrate that benefits are
highly variable across facilities and locations. Even similar
facilities on the same waterbody can have very different impacts
depending on the aquatic ecosystem in the vicinity of the facility and
intake-specific characteristics such as location, design, construction,
and capacity.
Some of the important factors that make benefits highly site-
specific include important differences across the regulated facilities
themselves. Many of these facility-specific characteristics that affect
benefits add additional stressors to the aquatic systems in which they
operate. Benefits occur through the reduction of the stressors through
the application of impingement and entrainment reduction technologies.
Stressor-related factors that make benefits site-specific include:
Cooling water intake structure size and scale of operation
(e.g., flow volume and velocity)
Cooling water intake structure technologies and/or
operational practices in place (if any) for impingement and entrainment
reduction at baseline (i.e., absent any new regulations)
Cooling water intake structure intake location in relation
to local zones of ecological activity and significance (e.g., depth and
orientation of the intake point, and its distance from shore)
Cooling water intake structure flow volumes in relation to
the size of the impacted waterbody
Many of the key factors that make impingement and entrainment
impacts site-specific reflect the receptors exposed to the stressor-
related impacts. Receptors include the types of waterbodies impacted,
the aquatic species that are affected in those waterbodies, and the
people who use and/or value the status of the water resources and
aquatic ecosystems affected. Receptor-oriented factors that make
impingement and entrainment impacts highly site-specific include:
The aquatic species present near a facility
The ages and life stages of the aquatic species present near
the intakes
The timing and duration of species' exposure to the intakes
The ecological value of the impacted species in the context of
the aquatic ecosystem
Whether any of the impacted species are threatened,
endangered, or otherwise of special concern and status (e.g., depleted
commercial stocks)
Local ambient water quality issues that may also affect the
fisheries and their uses
All of these factors, as well as several others, have important
impacts on the level and significance of impingement and entrainment.
These factors determine baseline impacts, and the size and value of
regulation-related reductions in those impacts.
The regulatory framework proposed by EPA recognizes the site-
specific nature of impingement and entrainment impacts and is designed
to accommodate these factors to the greatest degree practicable in a
national rulemaking. For example, EPA's proposed regulatory approach
accounts for the types of waterbodies that a cooling water intake
structure impacts, the proportion of the source water flow supplied to
the cooling water intake structure, and technological design parameters
related to the impingement and entrainment from the intake. The
Agency's benefits analysis attempts to accommodate and reflect these
site-specific parameters.
D. Data and Methods Used to Estimate Benefits
To estimate the economic benefits of reducing impingement and
entrainment at existing cooling water intake structures, all the
beneficial outcomes need to be identified and, where possible,
quantified and assigned appropriate monetary values. Estimating
economic benefits can be challenging because of the many steps that
need to be analyzed to link a reduction in impingement and entrainment
to changes in impacted fisheries and other aspects of relevant aquatic
ecosystems, and then to link these ecosystem changes to the resulting
changes in quantities and values for the associated environmental goods
and services that ultimately are linked to human welfare.
The benefit estimates for this rule are derived from a series of
case studies from a range of waterbody types at a number of locations
around the country including:
The Delaware Estuary (Mid-Atlantic Estuaries)
The Ohio River (Large Freshwater Rivers)
Tampa Bay (Gulf Coast Estuaries)
New England Coast (Oceans)
Mount Hope Bay, New England (North Atlantic Estuaries)
San Francisco Bay/Delta (Pacific Coast Estuaries)
The Great Lakes
The following sections describe the methods used by EPA used to
evaluate impingement and entrainment impacts at section 316(b) case
study Phase II existing facilities and to derive an economic value
associated with any such losses.
1. Estimating Losses of Aquatic Organisms
The first set of steps in estimating the benefits of the proposed
rule involves estimating the magnitude of impingement and entrainment.
EPA's analysis involved compiling facility-reported empirical
impingement and entrainment counts and life history information for
affected species. Life history data typically included species-specific
growth rates, the fractional component of each life stage vulnerable to
harvest, fishing mortality rates, and natural (nonfishing) mortality
rates.
It is important to note that impingement and entrainment monitoring
data are often limited to a subset of species, and monitoring is often
of very limited duration (e.g., confined to a single year). This
implies that the magnitude of impingement and entrainment is often
underestimated. In addition, in many cases data are over two decades
old (e.g., from 1979). Therefore the data may not always reflect
current fishery conditions, including changes in fisheries due to water
quality improvements since the monitoring period. The limited temporal
extent of the data also omits the high variability often seen in
aquatic populations. If data are collected only in a year of low
abundance, impingement and entrainment rates will also be low, and may
not reflect the long term average. The data also may not represent
potential cumulative long-term impacts of impingement and entrainment.
In EPA's analysis of impingement and entrainment impacts, these
facility-derived impingement and entrainment counts were modeled with
relevant life history data to derive estimates of age 1 equivalent
losses (the number of individuals that would have survived to age 1 if
they had not been impinged and entrained by facility intakes), foregone
fishery yield (the amount in pounds of commercial and recreational fish
and shellfish that is not harvested due to impingement and entrainment
losses) and foregone production (losses of impinged and entrained
forage species that are not commercial or recreational fishery targets
but serve as valuable components of aquatic food webs, particularly as
an important food supply to other aquatic species including commercial
and recreational species).
[[Page 17191]]
2. Estimating Baseline Losses and the Economic Benefits of the Proposed
Rule
Given the projected physical impact on aquatic organisms (losses of
age 1 equivalents resulting from impingement and entrainment), the
second set of steps in the benefits analysis entails assigning monetary
values to the estimated losses. These economic loss estimates are
subsequently converted into estimated benefits for the proposed rule by
examining the extent to which impingement and entrainment is reduced by
adoption of the best technology available in accordance with the
options defined in this proposed rule.
Economic benefits can be broadly defined according to several
categories of goods and services furnished by the impacted species,
including those that pertain to the direct use or indirect use of the
impacted resources. There also are benefits that are independent of any
current or anticipated use (direct or indirect) of the resource; these
are known as nonuse or passive use values. The benefits can be further
categorized according to whether or not affected goods and services are
traded in the market. ``Direct use'' benefits include both ``market''
commodities (e.g., commercial fisheries) and ``nonmarket'' goods (e.g.,
recreational angling). Indirect use benefits also can be linked to
either market or nonmarket goods and services `` for example, the
manner in which reduced impingement and entrainment-related losses of
forage species leads through the aquatic ecosystem food web to enhance
the biomass of species targeted for commercial (market) and
recreational (nonmarket) uses. ``Nonuse'' benefits include only
``nonmarketed'' goods and services, reflecting human values associated
with existence and bequest motives.
The economic value of benefits is estimated using a range of
traditional methods, with the specific approach being dependent on the
type of benefit category, data availability, and other suitable
factors. Accordingly, some benefits are valued using market data (e.g.,
for commercial fisheries), and others are valued using secondary
nonmarket valuation data (e.g., benefits transfer of nonmarket
valuation studies of the value of recreational angling). Some benefits
are described only qualitatively, because it was not feasible to derive
reliable quantitative estimates of the degree of impact and/or the
monetary worth of reducing those impacts. In addition, some nonmarket
benefits are estimated using primary research methods. Specifically,
recreational values are estimated for some of the case studies (those
that are examined on a watershed-scale) using a Random Utility Model
(RUM). Also, some benefits estimates are developed using habitat
restoration costing or similar approaches that use replacement costs as
a proxy for beneficial values. Variations of these general
methodologies have been applied to better reflect site-specific
circumstances or data availability.
In the case of forage species, benefits valuation is challenging
because these species are not targeted directly by commercial or
recreational anglers and have no direct use values that can be observed
in markets or inferred from revealed actions of anglers. Therefore, two
general approaches were used to translate estimated impingement and
entrainment losses to forage species into monetary values. The first
approach examines replacement costs as a proxy for the value of
estimated forage species losses (expressed as the total number of age 1
equivalents) and was valued based on hatchery costs. This approach does
not take into consideration ecological problems associated with
introducing hatchery fish into wild populations. The second approach
used two distinct estimates of trophic transfer efficiency to relate
foregone forage production to foregone commercial and recreational
fishery yields. A portion of total forage production has relatively
high trophic transfer efficiency because it is consumed directly by
harvested species. The remaining portion of total forage production has
low trophic transfer efficiency because it reaches harvested species
indirectly following multiple interactions at different parts of the
food web. Ultimately, the production foregone approach assigns a value
to reduced forage species losses based on their indirect contribution
to higher commercial and recreational fishery values.
Benefits analyses for rulemakings under the Clean Water Act have
been limited in the range of benefits addressed, which has hindered
EPA's ability to compare the benefits and costs of rules
comprehensively. The Agency is working to improve its benefits
analyses, including applying methodologies that have now become well
established in the natural resources valuation field, but have not been
used previously in the rulemaking process. EPA was particularly
interested in expanding its benefits analysis for this rule to include
more primary research along with the use of secondary (e.g., benefits
transfer) methods to estimate recreation benefits. EPA has therefore
expanded upon its traditional methodologies in the benefits analysis
for this proposed rule by applying an original travel cost study using
data from the National Marine Fishery Service in the Delaware and Tampa
Estuaries and data from the National Recreational Demand Survey (NDS)
in Ohio in a Random Utility Model (RUM) of recreational behavior, to
estimate the changes in consumer valuation of water resources that
would result from reductions in impingement and entrainment-related
fish losses. These studies are presented in detail in the Case Study
Document.
The Agency also improved its analyses by performing several
Habitat-Based Replacement Cost analyses. A complete Habitat-Based
Replacement Cost analysis develops values for impingement and
entrainment losses based on the combined costs for implementing habitat
restoration actions, administering the programs, and monitoring the
increased production after the restoration actions. These costs are
developed by identifying the preferred habitat restoration alternative
for each species with impingement and entrainment, and then scaling the
level of habitat restoration until the losses across all species have
been offset fully by expected increases in the production of those
species. The total value of the impingement and entrainment losses is
then calculated as the sum of the costs across the categories of
preferred habitat restoration alternatives. An in-depth discussion of
the Habitat-Based Replacement Cost methodology is in Chapter A11 of the
Case Study Document. Examples of estimating benefits using the Habitat-
Based Replacement Cost methodology can be found in the case studies for
the Pilgrim Nuclear facility (Part G) and the Brayton Point facility
(Part F). A stream-lined version of the methodology can be found in the
J.R. Whiting case study (Part H) and the Monroe case study (Part I) of
the Case Study Document.
The primary strength of the Habitat-Based Replacement Cost method
is the explicit recognition that impingement and entrainment losses
have impacts on all components of the aquatic ecosystem, and the
public's use and enjoyment of that ecosystem, beyond that estimated by
reduced commercial and recreational fish catches. Results depend on the
quality of the impingement and entrainment data collected, the
availability of data on the habitat requirements of impinged or
entrained species, and the program for defining expected production
increases for species following implementation of restoration
activities.
[[Page 17192]]
3. EPA's Estimates of Impingement and Entrainment Losses and Benefits
Probably are Underestimates
EPA's estimates of fish losses due to impingement and entrainment,
and of the benefits of the proposed regulations, are subject to
considerable uncertainties. As a result, the Agency's benefits
estimates could be either over-or under-estimated. However, because of
the many factors omitted from the analysis (typically because of data
limitations) and the manner in which several key uncertainties were
addressed, EPA believes that its analysis is likely to lead to a
potentially significant underestimate of baseline losses and, therefore
lead to understated estimates of regulatory benefits.
Several of the key factors that are likely to lead EPA's analysis
to underestimate benefits include:
Data Limitations
EPA's analysis is based on facility-provided biological
monitoring data. These facility-furnished data typically focus on a
subset of the fish species impacted by impingement and entrainment,
resulting in an underestimate of the total magnitude of losses.
Industry biological studies often lack a consistent
methodology for monitoring impingement and entrainment. Thus, there are
often substantial uncertainties and potential biases in the impingement
and entrainment estimates. Comparison of results between studies is
therefore very difficult and sometimes impossible, even among
facilities that impinge and entrain the same species.
The facility-derived biological monitoring data often
pertain to conditions existing many years ago (e.g., the available
biological monitoring often was conducted by the facilities 20 or more
years ago, before activities under the Clean Water Act had improved
aquatic conditions). In those locations where water quality was
relatively degraded at the time of monitoring relative to current
conditions, the numbers and diversity of fish are likely to have been
depressed during the monitoring period, resulting in low impingement
and entrainment. In most of the nation's waters, current water quality
and fishery levels have improved, so that current impingement and
entrainment losses are likely to be greater than available estimates
for depressed populations.
Estimated Technology Effectiveness
The only technology effectiveness that is certain is
reductions in impingement and entrainment with cooling towers.
Potential latent mortality rates are unknown for most
technologies.
Installed technologies may not operate at the maximum
efficiency assumed by EPA in its estimates of technology effectiveness.
Potential Cumulative Impacts
Impingement and entrainment impacts often have cumulative
impacts that are usually not considered. Cumulative impacts refer to
the temporal and spatial accumulation of changes in ecosystems that can
be additive or interactive. Cumulative impacts can result from the
effects of multiple facilities located within the same waterbody and
from individually minor but collectively significant impingement and
entrainment impacts taking place over a period or time.
Relatively low estimates of impingement and entrainment
impacts may reflect a situation where cumulative impingement and
entrainment impacts (and other stresses) have appreciably reduced
fishery populations so that there are fewer organisms present in intake
flows.
In many locations (especially estuary and coastal waters),
many fish species migrate long distances. As such, these species are
often subject to impingement and entrainment risks from a large number
cooling water intake structures. EPA's analyses reflect the impacts of
a limited set of facilities on any given fishery, whereas many of these
fish are subjected to impingement and entrainment at a greater number
of cooling water intake structures than are included in the boundaries
of the Agency's case studies.
Recreational Benefits
The proportion of impingement and entrainment losses of
fishery species that were valued as lost recreational catch was
determined from stock-specific fishing mortality rates, which indicate
the fraction of a stock that is harvested. Because fishing mortality
rates are typically less than 20%, a large proportion of the losses of
fishery species were not valued in the benefits transfer and RUM
analyses.
Only selected species were evaluated because impingement
and entrainment or valuation data were limited.
In applying benefits transfer to value the benefits of
improved recreational angling, the Agency only assigned a monetary
benefit to the increases in consumer surplus for the baseline number of
fishing days. Changes in participation (except where the RUM is
estimated) are not considered. Thus, benefits will be understated if
participation increases in response to increased availability of
fishery species as a result of reduced impingement and entrainment.
This approach omits the portion of recreational fishing benefits that
arise when improved conditions lead to higher levels of participation.
Empirical evidence suggests that the omission of increased angling days
can lead to an underestimate of total recreational fishing benefits.
Where EPA has been able to apply its RUM analyses, the recreational
angling benefits are more indicative of the full range of beneficial
angling outcomes.
Secondary (Indirect) Economic Impacts
Secondary impacts, are not calculated (effects on marinas, bait
sales, property values, and so forth are not included, even though they
may be significant and applicable on a regional scale).
Commercial Benefits
The proportion of impingement and entrainment losses of
fishery species that were valued as lost commercial catch was
determined from stock-specific fishing mortality rates, which indicate
the fraction of a stock that is harvested. Because fishing mortality
rates are typically less than 20%, a large proportion of the losses of
fishery species were not valued in the benefits transfer analyses.
In most cases, invertebrate species (e.g, lobsters,
mussels, crabs, shrimp) were not included because of a lack of
impingement and entrainment data and/or life history information.
Impingement and entrainment impacts and associated
reductions in fishery yields are probably understated even for those
species EPA could evaluate because of a lack of monitoring data to
capture population variability and cumulative impingement and
entrainment impacts over time.
Current fishing mortality rates (and resulting estimates
of yield) often reflect depleted fisheries, not what the fisheries
should or could be if not adversely impacted by impingement and
entrainment and other stressors. As such, yield estimates may be
artificially low because of significantly curtailed recreational and/or
commercial catch of key species impinged and entrained (e.g., winter
flounder in Mount Hope Bay).
Forage Species
Forage species often make up the predominant share of
losses due to impingement and entrainment. However, impingement and
entrainment
[[Page 17193]]
losses of forage species are usually not known because many facility
studies focus on commercial and recreational fishery species only.
Even when forage species are included in loss estimates,
the monetary value assigned to forage species is likely to be
understated because the full ecological value of the species as part of
the food web is not considered.
Forage losses are often valued at only a fraction of their
potential full value because of partial ``replacement'' cost (even if
feasible to replace).
Low production foregone assumptions (no inherent value,
only added biomass to landed recreational and commercial species is
considered).
In one valuation approach EPA applied to forage species,
only the small share of these losses are valued--namely the
contribution of the forage species to the increased biomass of landed
recreational and commercial species.
This does not apply to benefits derived by the Habitat-
Based Replacement Cost approach, which provides a more comprehensive
indication of the benefits of reducing impingement and entrainment on
all species, including forage fish. EPA has applied this approach to a
limited number of settings, and in those settings the findings suggest
benefits appreciably greater than derived from the more traditional,
partial benefits approaches applied by the Agency.
Nonuse Benefits
Nonuse benefits are most likely understated using the 50
percent rule because the recreational values used are likely to be
understated.
The 50 percent rule itself is conservative (e.g., only
reflects nonuse component of total value to recreational users. It does
not reflect any nonuse benefits to recreational nonusers).
Impacts on threatened and endangered species are not fully
captured.
Incidental Benefits
EPA has not accounted for thermal impact reductions, which
will be incidental benefits in places where once-through facilities are
replaced with recirculating water regimes.
E. Summary of Benefits Findings: Case Studies
As noted above, EPA developed benefits estimates for various case
studies, and key results are described below.
1. The Delaware Estuary (Mid-Atlantic Estuaries)
The results of EPA's evaluation of impingement and entrainment
rates at cooling water intake structures in the Delaware Estuary
transition zone indicate that cumulative impacts can be substantial.
EPA's analysis shows that even when losses at individual facilities
appear insignificant, the total of all impingement and entrainment
impacts on the same fish populations can be sizable. For example,
nearly 44,000 age 1 equivalents of weakfish are lost as a result of
entrainment at Hope Creek, which operates with closed-cycle cooling and
therefore has relatively low entrainment rates. However, the number of
total weakfish age 1 equivalents lost as a result of entrainment at all
transition zone cooling water intake structures is over 2.2 million
individuals. Cumulative impacts of all species at Delaware Estuary
transition zones facilities is 14.3 million age 1 equivalent fish
impinged per year and entrainment is 616 million age 1 equivalent fish
entrained per year.
EPA has conservatively estimated cumulative impacts on Delaware
Estuary species by considering the impingement and entrainment impacts
of only transition zone cooling water intake structures. In fact, many
of the species affected by cooling water intake structures within the
transition zone move in and out of this area, and therefore may be
exposed to many more cooling water intake structures than considered
here. Regardless of the geographic extent of an evaluation of
cumulative impacts, it is important to consider how impingement and
entrainment rates relate to the relative abundance of species in the
source waterbody. Thus, low impingement and entrainment does not
necessarily imply low impact, since it may reflect low population
abundance, which can result from numerous natural and anthropogenic
factors, including long-term impingement and entrainment impacts of
multiple cooling water intake structures. On the other hand, high
population abundance in the source waterbody and associated high
impingement and entrainment may reflect waterbody improvements that are
independent of impacts from or improvements in cooling water intake
structure technologies. High levels of impingement and entrainment
impacts on a species may also indicate a high susceptibility of that
given species to cooling water intake structure effects.
In addition to estimating the physical impact of impingement and
entrainment in terms of numbers of fish lost because of the operation
of all in scope and out-of-scope cooling water intake structures in the
Delaware Estuary transition zone, EPA also examined the estimated
economic value of the losses from impingement and entrainment. The
estimated cumulative impact of impingement and entrainment at the 12
cooling water intake structures located in the Delaware case study area
was based on data available for the Salem facility and then
extrapolated to the other facilities on the basis of flow. Average
losses at all transition zone cooling water intake structures from
impingement are valued (using benefits transfer) at between roughly
$0.5 million and $1.1 million per year, and between approximately $23.9
million and $49.5 million per year for entrainment (all in 2001$).
Average losses at the four in scope facilities (using benefits transfer
combined with RUM recreation estimates) range from $0.5 million to $0.8
million per year for impingement and from $26.0 to $46.2 million per
year for entrainment (all in 2001$) (see Exhibit 13).
In this estuarine setting, benefits attributed to reducing losses
due to both impingement and entrainment may be quite large in terms of
numbers of fish and in terms of the portion of benefits that could be
monetized. Entrainment losses are over 40 times greater than
impingement losses. This reflects the typical richness of estuary
waters as important nursery locations for early life stages of many
important aquatic species, coupled with the significant adverse impact
that entrainment can have on such life stages. This result indicates
the relative importance of entrainment controls in estuary areas.
Exhibit 13.--Baseline Impacts (Annual Average) at Four in Scope
Facilities in the Transition Zone of the Delaware Estuary
------------------------------------------------------------------------
Impingement Entrainment
------------------------------------------------------------------------
Four In Scope Facilities
------------------------------------------------------------------------
a. age 1 equivalent fish lost... >14.3 mil/yr...... >616 mil/yr.
[[Page 17194]]
b. # lbs lost to landed fishery. >438,000 lbs/yr... >16 mil lbs/yr.
c. $ value of loss (2001$)...... $0.5 mil-$0.8 mil. $26.0 mil--$46.2
mil.
------------------------------------------------------------------------
In part, EPA's recreational benefits estimates for the Delaware
Estuary is based on a RUM analysis of recreational fishing benefits
from reduced impingement and entrainment. The RUM application in the
Delaware Estuary focuses on weakfish and striped bass fishing
valuation. Several recreational fishing studies have valued weakfish
and striped bass, but values specific to these studies are not
available. The study area includes recreational fishing sites at the
Delaware River Estuary and the Atlantic coasts of Delaware and New
Jersey.
EPA uses data for this case study from the Marine Recreational
Fishery Statistics Survey (MRFSS), combined with the 1994 Add-on MRFSS
Economic Survey (AMES). The study uses MFRSS information on angler
characteristics and angler preferences, such as where they go fishing
and what species they catch, to infer their values for changes in
recreational fishing quality. EPA estimated angler behavior using a RUM
for single-day trips. The study used standard assumptions and
specifications of the RUM model that are readily available from the
recreation demand literature. Among these assumptions are that anglers
choose fishing mode and then the site in which to fish; and that
anglers' choice of target species is exogenous to the model. EPA
modeled an angler's decision to visit a site as a function of site-
specific cost, fishing trip quality, presence of boat launching
facilities, and water quality.
The quality of a recreational fishing trip is expressed in terms of
the number of fish caught per hour of fishing. Catch rate is the most
important attribute of a fishing site from the angler's perspective.
This attribute is also a policy variable of concern because catch rate
is a function of fish abundance, which may be affected by fish
mortality caused by impingement and entrainment.
The Agency combined the estimated model coefficients with the
estimated changes in impingement and entrainment associated with
various cooling water intake structure technologies to estimate per
trip welfare losses from impingement and entrainment at the cooling
water intake structures located in the Delaware Estuary transition
zone. The estimated economic values of recreational losses from
impingement and entrainment at the 12 cooling water intake structures
located in the case study area are $0.75, $2.04, and $9.97 per trip for
anglers not targeting any particular species and anglers targeting
weakfish and striped bass, respectively (all in 2001$). EPA then
estimated benefits of reducing impingement and entrainment of two
species --weakfish and striped bass--at the four in scope cooling water
intake structures in the case study area. The estimated values of an
increase in the quality of fishing sites from reducing impingement and
entrainment at the in scope cooling water intake structures are $0.52,
$1.40 and $6.90 per trip for no target anglers and anglers targeting
weakfish and striped bass, respectively (all in 2001$).
EPA also examined the effects of changes in fishing circumstances
on fishing participation during the recreational season. First, the
Agency used the negative binomial form of the Poisson model to model an
angler's decision concerning the number of fishing trips per recreation
season. The number of fishing trips is modeled as function of the
individual's socioeconomic characteristics and estimates of individual
utility derived from the site choice model. The Agency then used the
estimated model coefficients to estimate percentage changes in the
total number of recreational fishing trips due to improvements in
recreational site quality. EPA combined fishing participation data for
Delaware and New Jersey obtained from MFRSS with the estimated
percentage change in the number of trips under various policy scenarios
to estimate changes in total participation stemming from changes in the
fishing site quality in the study area. The MRFSS fishing participation
data include information on both single-day and multiple-day trips. The
Agency assumed that per day welfare gain from improved fishing site
quality is independent of trip length. EPA therefore calculated total
fishing participation for this analysis as the sum of the number of
single day trips and the number of fishing days corresponding to
multiple day trips. Analysis results indicate that improvements in
fishing site quality from reducing impingement and entrainment at all
in scope facilities will increase the total number of fishing days in
Delaware and New Jersey by 9,464.
EPA combined fishing participation estimates with the estimated per
trip welfare gain under various policy scenarios to estimate the value
to recreational anglers of changes in catch rates resulting from
changes in impingement and entrainment in the Delaware Estuary
transition zone. EPA calculated low and high estimates of economic
values of recreational losses from impingement and entrainment by
multiplying the estimated per trip welfare gain by the baseline and
policy scenario number of trips, respectively. The estimated
recreational losses (2001$) to Delaware and New Jersey anglers from
impingement and entrainment of 2 species at all Phase II existing
facilities in the transitional estuary, and all facilities in the
transitional estuary range from $0.2 to $0.3 and from $7.2 to $13.2
million, respectively. Using similar calculations, the Agency estimated
that reducing impingement and entrainment of weakfish and striped bass
at the four in scope cooling water intake structures in the transition
zone will generate $5.2 to $9.3 million (2001$) annually, in
recreational fishing benefits alone, to Delaware and New Jersey
anglers.
In interpreting the results of the case study analysis, it is
important to consider several critical caveats and limitations of the
analysis. For example, in the economic valuation component of the
analysis, valuation of impingement and entrainment losses is often
complicated by the lack of market value for forage species, which may
comprise a large proportion of total losses. EPA estimates that more
than 500 million age 1 equivalents of bay anchovy may be lost to
entrainment at transition zone cooling water intake structure each year
(over 85 percent of the total of over 616 million estimated lost age 1
individuals for all species combined). Bay anchovy has no direct market
value, but it is nonetheless a critical component of estuarine food
webs. EPA included forage species impacts in the economic benefits
calculations, but the final
[[Page 17195]]
estimates may well underestimate the full value of the losses imposed
by impingement and entrainment. Thus, on the whole, EPA believes the
estimates developed here probably underestimate the economic benefits
of reducing impingement and entrainment in the Delaware transition
zone.
2. Ohio River (Large Rivers)
EPA evaluated the impacts of impingement and entrainment using
facility-generated data at 9 cooling water intake structures along a
500 mile stretch of the Ohio River, spanning from the western portion
of Pennsylvania, along the southern border of Ohio, and into eastern
Indiana. The results were then extrapolated to the 20 other in scope
facilities along this stretch of the river (a total of 29 facilities
are expected to be in scope for this rulemaking, and another 19
facilities are out-of-scope).
To estimate impingement and entrainment impacts for the Ohio, EPA
evaluated the available impingement and entrainment monitoring data at
9 case study facilities (W.C. Beckjord, Cardinal, Clifty Creek, Kammer,
Kyger Creek, Miami Fort, Philip Sporn, Tanners Creek, and WH Sammis).
The results from these 9 facilities with impingement and entrainment
data were then extrapolated to the remaining in scope facilities to
derive an impingement and entrainment baseline for all facilities
subject to the proposed rule (additional extrapolations were also made
to out-of-scope facilities so that total impingement and entrainment
could be estimated as well). The extrapolations were made on the basis
of relative operating size (operating MGD) and by river pool (Hannibal,
Markland, McAlpine, New Cumberland, Pike Island, and Robert C. Byrd
pools).
The results indicate that impingement at all facilities (in scope
and out-of-scope) causes the mortality of approximately 11.6 million
fish (age 1 equivalents) per year. This translates into over 1.11
million pounds of fishery production foregone per year, and over 15,000
pounds of lost fishery yield annually.
For in scope facilities only, the results indicate that impingement
causes the mortality of approximately 11.3 million fish (age 1
equivalents) per year (97.8 percent of all impingement). This
translates into nearly 1.09 million pounds of fishery production
foregone per year, and nearly 15,000 pounds of lost fishery yield
annually (98.1 percent and 97.1 percent of the total, respectively).
For entrainment, the results indicate that all facilities combined
(in scope and out-of-scope) cause the mortality of approximately 24.4
million fish (age 1 equivalents) per year. This translates into over
10.08 million pounds of fishery production foregone per year, and over
39,900 pounds of lost fishery yield annually.
For in scope facilities only, the results indicate that entrainment
causes the mortality of approximately 23.0 million fish (age 1
equivalents) per year (94.2 percent of all entrainment). This
translates into nearly 9.89 million pounds of fishery production
foregone per year, and over 39,000 pounds of lost fishery yield
annually (98.1 percent and 97.7 percent of the total, respectively).
In addition to estimating the physical impact of impingement and
entrainment in terms of numbers of fish lost because of the operation
of all in scope and out-of-scope cooling water intake structures in the
Ohio River case study area, EPA also estimated the baseline economic
value of the losses from impingement and entrainment. The economic
value of these losses is based on benefits transfer-based values
applied to losses to the recreational fishery, nonuse values, and the
partial value of forage species impacts (measured as partial as
replacement costs or production foregone). This provides an indication
of the estimated cumulative impact of impingement and entrainment at
the all in scope and out-of-scope cooling water intake structures in
the case study area, based on data available for the 9 case study
facilities with usable impingement and entrainment data, and then
extrapolated to the other facilities on the basis of flow and river
pool.
Average historical losses from all in scope facilities in the case
study area for impingement are valued using benefits transfer at
between roughly $0.1 million and $1.4 million per year (in 2001$).
Average historical losses from entrainment are valued using benefits
transfer at between approximately $0.8 million and $2.4 million per
year (all in 2001$) for in scope facilities.
EPA also estimated a random utility model (RUM) to provide primary
estimates of the recreational fishery losses associated with
impingement and entrainment in the Ohio River case study area. This
primary research results supplement the benefits transfer estimates
derived by EPA. The average annual recreation-related fishery losses at
all facilities in the case study amount to approximately $8.4 million
(in 2001$) per year (impingement and entrainment impacts combined). For
the in scope facilities covered by the proposed Phase II rule, the
losses due to impingement and entrainment were estimated via the RUM to
amount to approximately $8.3 million per year (in 2001$). Results for
the RUM analysis were merged with the benefits transfer-based estimates
in a manner that avoids double counting, and indicate that baseline
losses at in scope facilities amount to between $3.5 million and $4.7
million per year for impingement and between $9.3 and $9.9 million per
year for entrainment (in 2001$) (see Exhibit 14).
Exhibit 14.--Baseline Impacts (Annual Average) in the Ohio River at In
Scope Facilities
------------------------------------------------------------------------
Impingement Entrainment
------------------------------------------------------------------------
29 In Scope Facilities
------------------------------------------------------------------------
a. age 1 equivalent fish lost.. > 11.3 mil/yr...... > 23.0 mil/yr
b. # lbs lost to landed fishery > 1.1 mil lbs/yr... > 9.9 mil lbs/yr
c. $ value of loss (2001$)..... $3.5 mil--$4.7 mil/ $9.3 mil--$9.9 mil/
yr. yr
------------------------------------------------------------------------
In interpreting the results of the case study analysis, it is
important to consider several critical caveats and limitations of the
analysis. In the economic valuation component of the analysis,
valuation of impingement and entrainment losses is often complicated by
the lack of market value for forage species, which may comprise a large
proportion of total losses. Forage species have no direct market value,
but are nonetheless a critical component of aquatic food webs. EPA
included forage species impacts in the economic benefits calculations,
but because techniques for valuing such losses are limited, the final
estimates may well underestimate the full ecological and economic value
of these losses.
In addition, the Ohio River case study is intended to reflect the
level of impingement and entrainment, and
[[Page 17196]]
hence the benefits associated with reducing impingement and entrainment
impacts, for cooling water impact structures along major rivers of the
U.S. However, there are several factors that suggest that the Ohio
River case study findings may be a low-end scenario in terms of
estimating the benefits of the proposed regulation at facilities along
major inland rivers of the U.S. These factors include the following:
The impingement and entrainment data developed by the
facilities were limited to one year only, and are from 1977 (nearly 25
years ago) and pertain to a period of time when water quality in the
case study area was worse than it is currently. This suggests that the
numbers of impinged and entrained fish today (the regulatory baseline)
would be appreciably higher than observed in the data collection
period. In addition, the reliance on a monitoring period of one year or
less implies that the naturally high variability in fishery populations
is not captured in the analysis, and the results may reflect a year of
above or below average impingement and entrainment.
The Ohio River is heavily impacted by numerous significant
anthropogenic stressors in addition to impingement and entrainment. The
river's hydrology has been extensively modified by a series of 20 dams
and pools, and the river also has been extensively impacted by
municipal and industrial wastewater discharges along this heavily
populated and industrialized corridor. To the degree to which these
multiple stressors were atypically extensive along the Ohio River (in
1977) relative to those along other cooling water intake structure-
impacted rivers in the U.S. (in 2002), the case study will yield
smaller than typical impingement and entrainment impact estimates.
The Ohio River is very heavily impacted by cumulative
effects of impingement and entrainment over time and across a large
number of cooling water intake structures. The case study segment of
the river has 29 facilities that are in scope for the Phase II
rulemaking, plus an additional 19 facilities that are out of scope.
Steam electric power generation accounted for 5,873 MGD of water
withdrawal from the river basin, more than 90 percent of the total
surface water withdrawals, according to 1995 data from USGS.
In conclusion, several issues and limitations in the impingement
and entrainment data for the Ohio case study (e.g., the reliance on
data for one year, nearly 25 years ago), and the many stressors that
affect the river (especially in the 1977 time frame), suggest that the
results obtained by EPA underestimate the benefits of the rule relative
to current Ohio River conditions. The results are also likely to
underestimate the benefits value of impingement and entrainment
reductions at other inland river facilities.
3. San Francisco Bay/Delta (Pacific Coast Estuaries)
The results of EPA's evaluation of impingement and entrainment of
striped bass, and threatened and endangered and other special status
fish species at the Pittsburg and Contra Costa facilities in the San
Francisco Bay/Delta demonstrate the significant economic benefits that
can be achieved if losses of highly valued species are reduced by the
proposed section 316(b) rule. The benefits were estimated by reference
to other programs already in place to protect and restore the declining
striped bass population and threatened and endangered fish species of
the San Francisco Bay/Delta region. The special status species that
were evaluated included delta smelt, threatened and endangered runs of
chinook salmon and steelhead, sacramento splittail, and longfin smelt.
Based on limited facility data, EPA estimates that the striped bass
recreational catch is reduced by about 165,429 fish per year due to
impingement at the two facilities and 185,073 fish per year due to
entrainment. Estimated impingement losses of striped bass are valued at
between $379,000 and $589,000 per year, and estimated entrainment
losses are valued at between $2.58 million to $4.01 million per year
(all in 2001$).
EPA estimates that the total loss of special status fish species at
the two facilities is 145,003 age 1 equivalents per year resulting from
impingement and 269,334 age 1 equivalents per year due to entrainment.
Estimated impingement losses of these species are valued at between
$12.38 million and $42.65 million per year, and estimated entrainment
losses are valued at between $23.1 million and $79.2 million per year
(all in 2001$).
The estimated value of the recreational losses and the special
status species losses combined range from $12.8 million to $43.2
million per year for impingement and from $25.6 million to $83.2
million per year for entrainment (all in 2001$) (see Exhibit 15).
Exhibit 15.--Baseline Impacts (Annual Average) for Special Status Fish
Species at 2 Facilities in the San Francisco Bay/Delta
------------------------------------------------------------------------
Impingement Entrainment
------------------------------------------------------------------------
Two In Scope Facilities
------------------------------------------------------------------------
a. age 1 equivalent fish lost.. > 145,000/yr....... > 269,000/yr
b. number of striped bass lost 165,429............ 185,073
to recreational catch.
c. $ value of combined loss $12.8 mil--$43.2 $25.6 mil--$83.2
(2001$). mil/yr. mil/yr
------------------------------------------------------------------------
In interpreting these results, it is important to consider several
critical caveats and limitations of the analysis. No commercial
fisheries losses or non-special status forage species losses are
included in the analysis. Recreational losses are analyzed only for
striped bass. There are also uncertainties about the effectiveness of
restoration programs in terms of meeting special status fishery outcome
targets.
It is also important to note that under the Endangered Species Act,
losses of all life stages of endangered fish are of concern, not simply
losses of adults. However, because methods are unavailable for valuing
losses of fish eggs and larvae, EPA valued the losses of threatened and
endangered species based on the estimated number of age 1 equivalents
that are lost. Because the number of age 1 equivalents can be
substantially less than the original number of eggs and larvae lost to
impingement and entrainment, and because the life history data required
to calculate age 1 equivalent are uncertain for these rare species,
this method of quantifying impingement and entrainment losses may
result in an underestimate of the true benefits to society of the
proposed section 316(b) regulation.
[[Page 17197]]
4. The Great Lakes
EPA examined the estimated economic value of impingement and
entrainment at J.R. Whiting before installation of a deterrent net to
reduce impingement to estimate the historical losses of the facility
and potential impingement and entrainment damages at other Great Lakes
facilities that do not employ technologies to reduce impingement or
entrainment. Average impingement without the net is valued at between
$0.4 million and $1.2 million per year, and average entrainment is
valued at between $42,000 and $1.7 million per year (all in 2001$) (see
Exhibit 16).
The midpoints of the pre-net results from the benefits transfer
approach were used as the lower ends of the valuations losses. The
upper ends of the valuation of losses reflect results of the Habitat-
based Replacement Cost (HRC) method for valuing impingement and
entrainment losses. HRC-based estimates of the economic value of
impingement and entrainment losses at J.R. Whiting were included with
the transfer-based estimates to provide a better estimate of loss
values, particularly for forage species for which valuation techniques
are limited. The HRC technique is designed to provide a more
comprehensive, ecological-based valuation of impingement and
entrainment losses than valuation by traditional commercial and
recreational impacts methods. Losses are valued on the basis of the
combined costs for implementing habitat restoration actions,
administering the programs, and monitoring the increased production
after the restoration actions. In a complete HRC, these costs are
developed by identifying the preferred habitat restoration alternative
for each species with impingement and entrainment losses and then
scaling the level of habitat restoration until the losses across all
the species in that category have been offset by expected increases in
production of each species. The total value of impingement and
entrainment losses at the facility is then calculated as the sum of the
costs across the categories of preferred habitat restoration
alternatives.
The HRC method is thus a supply-side approach for valuing
impingement and entrainment losses in contrast to the more typically
used demand-side valuation approaches (e.g., commercial and
recreational fishing impacts valuations). An advantage of the HRC
method is that the HRC values can easily address losses for species
lacking a recreational or commercial fishery value (e.g., forage
species that typically are a large proportion of impingement and
entrainment impacts, but that are not readily valued in a traditional
benefits analysis). Further, the HRC explicitly recognizes and captures
the fundamental ecological relationships between impinged and entrained
organisms and their surrounding environment by valuing losses through
the cost of the actions required to provide an offsetting increase in
the existing populations of those species in their natural environment.
Impingement losses at J.R. Whiting with an aquatic barrier net are
estimated to be reduced by 92 percent, while entrainment losses are not
significantly affected. Thus, losses with a net are valued at between
$29,000 and $99,000 for impingement and between $42,000 and $1.7
million per year for entrainment (all in 2001$) (see Exhibit 17).
Exhibit 16.--Baseline Impacts (Annual Average) for J.R. Whiting Without
Net
------------------------------------------------------------------------
Impingement Entrainment
------------------------------------------------------------------------
One Great Lakes Facility
------------------------------------------------------------------------
a. age 1 equivalent fish lost.. >1.8 mil/yr........ >290,000/yr.
b. # lbs lost to landed fishery >21.4 mil lbs/yr... > 404,000 lbs/yr.
c. $ value of loss (2001$)..... $0.4 mil-$1.2 mil/ $42,000-$1.7 mil/
yr. yr.
------------------------------------------------------------------------
Exhibit 17.--Baseline Impacts (Annual Average) for J.R. Whiting Without
Net
------------------------------------------------------------------------
Impingement Entrainment
------------------------------------------------------------------------
One Great Lakes Facility
------------------------------------------------------------------------
a. age 1 equivalent fish lost.. >0.1 mil/yr........ >290,000/yr.
b. # lbs lost to landed fishery >1.7 mil lbs/yr.... >404,000 lbs/yr.
c. $ value of loss (2001$)..... $29,000-$99,000/yr. $42,000-$1.7 mil/
yr.
------------------------------------------------------------------------
5. Tampa Bay
To evaluate potential impingement and entrainment impacts of
cooling water intake structures in estuaries of the Gulf Coast and
Southeast Atlantic, EPA evaluated impingement and entrainment rates at
the Big Bend facility in Tampa Bay. EPA estimated that the impingement
impact of Big Bend is 420,000 age 1 equivalent fish and over 11,000
pounds of lost fishery yield per year. The entrainment impact is 7.71
billion age 1 equivalent fish and over nearly 23 million pounds of lost
fishery yield per year. Extrapolation of these losses to other Tampa
Bay facilities indicated a cumulative impingement impact of 1 million
age 1 fish (27,000 pounds of lost fishery yield) and a cumulative
entrainment impact of 19 billion age 1 equivalent fish (56 million
pounds of lost fishery yield) each year.
The results of EPA's evaluation of the dollar value of impingement
and entrainment losses at Big Bend, as calculated using benefits
transfer, indicate that baseline economic losses range from $61,000 to
$67,000 per year for impingement and from $7.1 million to $7.4 million
per year for entrainment (all in 2001$). Baseline economic losses using
benefits transfer for all in scope facilities in Tampa Bay (Big Bend,
PL Bartow, FJ Gannon, and Hookers Point) range from $150,000 to
$165,000 for impingement and from $17.5 million to $18.5 million per
year for entrainment (all in 2001$).
EPA also developed a random utility model (RUM) approach to
estimate the effects of improved fishing opportunities due to reduced
impingement and entrainment in the Tampa Bay Region. Cooling water
intake structures withdrawing water from Tampa Bay impinge and entrain
many of the species sought by recreational
[[Page 17198]]
anglers. These species include spotted seatrout, black drum,
sheepshead, pinfish, and silver perch. The study area includes Tampa
Bay itself and coastal sites to the north and south of Tampa Bay.
The study's main assumption is that anglers will get greater
satisfaction, and thus greater economic value, from sites where the
catch rate is higher, all else being equal. This benefit may occur in
two ways: first, an angler may get greater enjoyment from a given
fishing trip when catch rates are higher, and thus get a greater value
per trip; second, anglers may take more fishing trips when catch rates
are higher, resulting in greater overall value for fishing in the
region.
EPA's analysis of improvements in recreational fishing
opportunities in the Tampa Bay Region relies on a subset of the 1997
Marine Recreational Fishery Statistics Survey (MRFSS) combined with the
1997 Add-on MRFSS Economic Survey (AMES) and the follow-up telephone
survey for the Southeastern United States. The Agency evaluated five
species and species groups in the model: drums (including red and black
drum), spotted seatrout, gamefish, snapper-grouper, and all other
species. Impingement and entrainment was found to affect black drum,
spotted seatrout, and sheepshead which is included in the snapper-
grouper species category.
EPA estimated both a random utility site choice model and a
negative binomial trip participation model. The random utility model
assumes that anglers choose the site that provides them with the
greatest satisfaction, based on the characteristics of different sites
and the travel costs associated with visiting different sites. The trip
participation model assumes that the total number of trips taken in a
year are a function of the value of each site to the angler and
characteristics of the angler.
To estimate changes in the quality of fishing sites under different
policy scenarios, EPA relied on the recreational fishery landings data
by State and the estimates of recreational losses from impingement and
entrainment on the relevant species at the Tampa Bay cooling water
intake structures. The Agency estimated changes in the quality of
recreational fishing sites under different policy scenarios in terms of
the percentage change in the historic catch rate. EPA divided losses to
the recreational fishery from impingement and entrainment by the total
recreational landings for the Tampa Bay area to calculate the percent
change in historic catch rate from baseline losses (i.e., eliminating
impingement and entrainment completely).
The results show that anglers targeting black drum have the largest
per trip welfare gain ($7.18 in 2001$) from eliminating impingement and
entrainment in the Tampa region. Anglers targeting spotted seatrout and
sheepshead have smaller per-trip gains ($1.80 and $1.77 respectively,
in 2001$). The large gains for black drum are due to the large
predicted increase in catch rates. In general, based on a hypothetical
one fish per trip increase in catch rate, gamefish and snapper-grouper
are the most highly valued fish in the study area, followed by drums
and spotted seatrout.
EPA calculated total economic values by combining the estimated per
trip welfare gain with the total number of trips to sites in the Tampa
Bay region. EPA used the estimated trip participation model to estimate
the percentage change in the number of fishing trips with the
elimination of impingement and entrainment. These estimated percentage
increases are 0.93 percent for anglers who target sheepshead, 0.94
percent for anglers who target spotted seatrout, and 3.82 percent for
anglers who target black drum.
If impingement and entrainment is eliminated in the Tampa region,
total benefits are estimated to be $2,428,000 per year at the baseline
number of trips, and $2,458,000 per year at the predicted increased
number of trips (all in 2001$). At the baseline number of trips, the
impingement and entrainment benefits to black drum anglers are $270,000
per year; benefits to spotted seatrout anglers are $2,016,000 per year;
and benefits to sheepshead anglers are $143,000 per year (all in
2001$).
Results for the RUM analysis were merged with the benefits
transfer-based estimates to create an estimate of recreational fishery
losses from impingement and entrainment in a manner that avoids double
counting of the recreation impacts. Baseline economic losses combining
both approaches for all in scope facilities in Tampa Bay (Big Bend, PL
Bartow, FJ Gannon, and Hookers Point) range from $0.80 million to $0.82
million for impingement and from $20.0 million to $20.9 million per
year for entrainment (all in 2001$) (see Exhibit 18).
For a variety of reasons, EPA believes that the estimates developed
here underestimate the value of impingement and entrainment losses at
Tampa Bay facilities. EPA assumed that the effects of impingement and
entrainment on fish populations are constant over time (i.e., that fish
kills do not have cumulatively greater impacts on diminished fish
populations). EPA also did not analyze whether the number of fish
affected by impingement and entrainment would increase as populations
increase in response to improved water quality or other improvements in
environmental conditions. In the economic analyses, EPA also assumed
that fishing is the only recreational activity affected.
Exhibit 18.--Baseline Impacts (Annual Average) for Tampa Bay
------------------------------------------------------------------------
Impingement Entrainment
------------------------------------------------------------------------
Four In Scope Facilities
------------------------------------------------------------------------
a. age 1 equivalent fish lost.. >1 mil/yr.......... >19 billion/yr.
b. # lbs lost to landed fishery >27,000 lbs/yr..... >56 million lbs/
yr.
c. $ value of loss (2001$)..... $0.80 mil-$0.82 mil/ $20.0 mil-$20.9
yr. mil/yr.
------------------------------------------------------------------------
6. Brayton Point
EPA evaluated cumulative impingement and entrainment impacts at the
Brayton Point Station facility in Mount Hope Bay in Somerset,
Massachusetts. EPA estimates that the cumulative impingement impact is
69,300 age 1 equivalents and 5,100 pounds of lost fishery yield per
year. The cumulative entrainment impact amounts to 3.8 million age 1
equivalents and 70,400 pounds of lost fishery yield each year.
The results of EPA's evaluation of the dollar value of impingement
and entrainment losses at Brayton Point (as calculated using benefits
transfer) indicate that baseline economic losses range from $7,000 to
$12,000 per year for impingement and from $166,000 to
[[Page 17199]]
$303,000 per year for entrainment (all in 2001$).
EPA also developed an Habitat-based Replacement Cost (HRC) analysis
to examine the costs of restoring impingement and entrainment losses at
Brayton Point. These HRC estimates were merged with the benefits
transfer results to develop a more comprehensive range of loss
estimates. The HRC results were used as an upper bound and the midpoint
of the benefits transfer method was used as a lower bound (HRC
annualized at 7 percent over 20 years). Combining both approaches, the
value of impingement and entrainment losses at Brayton Point range from
approximately $9,000 to $890,00 per year for impingement, and from $0.2
million to $28.3 million per year for entrainment (all in 2001$) (see
Exhibit 19).
For a variety of reasons, EPA believes that the estimates developed
here underestimate the total economic benefits of reducing impingement
and entrainment at Brayton Point. EPA assumed that the effects of
impingement and entrainment on fish populations are constant over time
(i.e., that fish kills do not have cumulatively greater impacts on
diminished fish populations). EPA also did not analyze whether the
number of fish affected by impingement and entrainment would increase
as populations increase in response to improved water quality or other
improvements in environmental conditions. In the economic analyses, EPA
also assumed that fishing is the only recreational activity affected.
Exhibit 19.--Baseline Impacts (Annual Average) for Brayton Point
------------------------------------------------------------------------
Impingement Entrainment
------------------------------------------------------------------------
One In Scope Facility
------------------------------------------------------------------------
a. age 1 equivalent fish lost.. >69,300/yr......... >3.8 mil/yr.
b. # lbs lost to landed fishery >5,100 lbs/yr...... >70,400 lbs/yr.
c. $ value of loss (2001$)..... $9,000-$890,000/yr. $0.2 mil-$28.3 mil/
yr.
------------------------------------------------------------------------
7. Seabrook Pilgrim
The results of EPA's evaluation of impingement and entrainment
rates at Seabrook and Pilgrim indicate that impingement and entrainment
at Seabrook's offshore intake is substantially less than impingement
and entrainment at Pilgrim's nearshore intake. Impingement per MGD
averages 68 percent less and entrainment averages 58 percent less at
Seabrook. The species most commonly impinged at both facilities are
primarily winter flounder, Atlantic herring, Atlantic menhaden, and red
hake. These are species of commercial and recreational interest.
However, the species most commonly entrained at the facilities are
predominately forage species. Because it is difficult to assign an
economic value to such losses, and because entrainment losses are much
greater than impingement losses, the benefits of an offshore intake or
other technologies that may reduce impingement and entrainment at these
facilities are likely to be underestimated. There also are several
important factors in addition to the intake location (nearshore versus
offshore) that complicate the comparison of impingement and entrainment
at the Seabrook facility to impingement and entrainment at Pilgrim
(e.g., entrainment data are based on different flow regimes, different
years of data collection, and protocols for reporting monitoring
results).
Average impingement losses at Seabrook are valued at between $3,500
and $5,200 per year, and average entrainment losses are valued at
between $142,000 and $315,000 per year (all in 2001$) (see Exhibit 20).
Average impingement losses at Pilgrim are valued at between $3,300 and
$5,000 per year, and average entrainment losses are valued at between
$523,500 and $759,300 per year (all in 2001$). These values reflect
estimates derived using benefits transfer.
EPA also developed an HRC analysis to examine the costs of
restoring impingement and entrainment losses at Pilgrim. Using the HRC
approach, the value of impingement and entrainment losses at Pilgrim
are approximately $507,000 for impingement, and over $9.3 million per
year for entrainment (HRC annualized at 7 percent over 20 years) (all
in 2001$). These HRC estimates were merged with the benefits transfer
results to develop a more comprehensive range of loss estimates.
These HRC estimates were merged with the benefits transfer results
to develop a more comprehensive range of loss estimates. The HRC
results were used as an upper bound and the midpoint of the benefits
transfer method was used as a lower bound (HRC annualized at 7 percent
over 20 years). Combining both approaches, the value of impingement and
entrainment losses at Pilgrim range from approximately $4,000 to
$507,00 per year for impingement, and from $0.6 million to $9.3 million
per year for entrainment (all in 2001$) (see Exhibit 21).
Exhibit 20.--Baseline Impacts (Annual Average) for Seabrook
------------------------------------------------------------------------
Impingement Entrainment
------------------------------------------------------------------------
One In Scope Facility: Seabrook
------------------------------------------------------------------------
a. age 1 equivalent fish lost.. > 1.8 mil/yr....... > 290,000/yr
b. # lbs lost to landed fishery > 21.4 mil lbs/yr.. > 404,000 lbs/yr
c. $ value of loss (2001$)..... $3,000-$5,000...... $142,000-$315,000
------------------------------------------------------------------------
Exhibit 21.--Baseline Impacts (Annual Average) for Pilgrim
------------------------------------------------------------------------
Impingement Entrainment
------------------------------------------------------------------------
One In Scope Facility: Pilgrim Losses Using Benefits Transfer
------------------------------------------------------------------------
a. age 1 equivalent fish lost.. > 1.8 mil/yr....... > 290,000/yr
[[Page 17200]]
b. # lbs lost to landed fishery > 21.4 mil lbs/yr.. > 404,000 lbs/yr
c. $ value of loss (2001$)..... $3,000-$5,000/yr... $0.5 mil-$0.7 mil/
yr
------------------------------------------------------------------------
Pilgrim Losses Using HRC as Upper Bounds and Benefits Transfer Midpoints
as Lower
------------------------------------------------------------------------
a. age 1 equivalent fish lost.. > 1.8 mil/yr....... > 290,000/yr
b. # lbs lost to landed fishery > 21.4 mil lbs/yr.. > 404,000 lbs/yr
c. $ value of loss (2001$)..... $4,000-$507,000/yr. $0.6 mil-$9.3 mil/
yr
------------------------------------------------------------------------
8. Monroe
EPA estimates that the baseline impingement losses at the Monroe
facility are 35.8 million age 1 equivalents and 1.4 million pounds of
lost fishery yield per year. Baseline entrainment impacts amount to
11.6 million age 1 equivalents and 608,300 pounds of lost fishery yield
each year.
The results of EPA's evaluation of the dollar value of baseline
impingement and entrainment losses at Monroe (as calculated using
benefits transfer) indicate that baseline economic losses range from
$502,200 to $981,750 per year for impingement and from $314,600 to
$2,298,500 per year for entrainment (all in 2001$).
EPA also developed an HRC analysis to examine the costs of
restoring impingement and entrainment losses at Pilgrim. These HRC
estimates were merged with the benefits transfer results to develop a
more comprehensive range of loss estimates. These HRC estimates were
merged with the benefits transfer results to develop a more
comprehensive range of loss estimates. The HRC results were used as an
upper bound and the midpoint of the benefits transfer method was used
as a lower bound (HRC annualized at 7 percent over 20 years). Combining
both approaches, the value of impingement and entrainment losses at
Monroe range from approximately $0.7 million to $5.6 per year for
impingement, and from $1.3 million to $13.9 million per year for
entrainment (all in 2001$) (see Exhibit 22).
For a variety of reasons, EPA believes that the estimates developed
here underestimate the total economic benefits of reducing impingement
and entrainment at the Monroe facility. EPA assumed that the effects of
impingement and entrainment on fish populations are constant over time
(i.e., that fish kills do not have cumulatively greater impacts on
diminished fish populations). EPA also did not analyze whether the
number of fish affected by impingement and entrainment would increase
as populations increase in response to improved water quality or other
improvements in environmental conditions. In the economic analyses, EPA
also assumed that fishing is the only recreational activity affected.
Exhibit 22.--Baseline Losses at (Annual Average) Monroe (Using HRC
Values as Upper Bounds)
------------------------------------------------------------------------
Impingement Entrainment
------------------------------------------------------------------------
One In Scope Facility
------------------------------------------------------------------------
a. age 1 equivalent fish lost.. > 1.8 mil/yr....... > 290,000/yr
b. # lbs lost to landed fishery > 21.4 mil lbs/yr.. > 404,000 lbs/yr
c. $ value of loss (2001$)..... $0.7 mil-$5.6 mil.. $1.3 mil-$13.9 mil
------------------------------------------------------------------------
F. Estimates of National Benefits
1. Methodology
In order to compare benefits to costs for a national rulemaking
such as the section 316(b) proposed rule for Phase II existing
facilities, there is a need to generate national estimates of both
costs and benefits. This section describes the methodology EPA has
developed to provide national estimates of benefits.
Because benefits are very site-specific, there are limited options
for how EPA can develop national-level benefits estimates from a
diverse set of over 500 regulated entities. EPA could only develop a
limited number of case studies, and to interpret these cases in a
national context, the Agency identified a range of settings that
reflect the likely benefits potential of a given type of facility (and
its key stressor-related attributes) in combination with the waterbody
characteristics (receptor attributes) in which it is located. Benefits
potential settings can thus be defined by the various possible
combinations of stressor (facility) and receptor (waterbody, etc)
combinations.
Ideally, case studies would be selected to represent each of these
``benefits potential'' settings and then could be used to extrapolate
to like-characterized facility-waterbody setting cooling water intake
structure sites. However, data limitations and other considerations
precluded EPA from developing enough case studies to reflect the
complete range of benefits-potential settings. Data limitations also
made it difficult to reliably assign facilities to the various benefits
potential categories.
Based on the difficulties noted above, EPA adopted a more
practical, streamlined extrapolation version of its preferred approach,
as this is the only viable approach available to the Agency. To develop
a feasible, tractable manner for developing national benefits estimates
from a small number of case study investigations, EPA made its national
extrapolations on the basis of a combination of three relevant
variables: (1) The volume of water (operational flow) drawn by a
facility; (2) the level of recreational angling activity within the
vicinity of the facility; and (3) the type of waterbody on which the
facility is located. Extrapolations were then made across facilities
according to their respective waterbody type.
The first of these variables--operational flow (measured as
millions of gallons per day, or MGD)--reflects the degree of stress
caused by a facility. The second variable --the number of angler days
in the area (measured as the number of recreational angling days within
a 120 mile radius) -- reflects the degree to which there is a demand
[[Page 17201]]
(value) by local residents to use the fishery that is impacted. The
third variable--waterbody type (e.g., estuary, ocean, freshwater river
or lake, or Great Lakes)--reflects the types, numbers, and life stages
of fish and other biological receptors that are impacted by the
facilities. Accordingly, the extrapolations based on these three
variables reflect the key factors that affect benefits: the relevant
stressor, the biological receptors, and the human demands for the
natural resources and services impacted.
Flow: The flow variable the Agency developed is the monetized
benefits per volume of water flowing through cooling water intake
structures, in specific, applying a metric of ``dollars per million
gallons per day'' ($/MGD), where MGD levels are based on average
operational flows as reported by the facilities in the EPA Section
316(b) Detailed Questionnaire and Short Technical Questionnaire
responses, or through publically available data.
Angler days. The angler day variable the Agency used is based on
data developed by the U.S. Fish and Wildlife Survey as part of its 1996
National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation. These data were interpreted within a GIS-based approach to
estimate the level of recreational angling pursued by populations
living within 120 miles of each facility (additional detail is provided
in the EBA).
In developing the index, EPA used a GIS analysis to identify
counties within a 120 mile radius of each facility. The area for each
facility included the county the facility is located in and any other
county with 50 percent or more of its population residing within 120
miles of the facility. EPA estimated angling activity levels for two
types of angling days for each county: freshwater angling days and
saltwater angling days. Estimated angling days for the appropriate
waterbody type were summed across all counties in a facility's area to
yield estimated angling days near the facility. For each type of
angling, EPA estimated angling days by county residents as a percentage
of the State angling days by residents 16 years and older reported in
the 1996 National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation (USFWS, 1997). Angling days in each State were partitioned
into days by urban anglers and days by rural anglers based on the U.S.
percentages reported in the 1996 National Survey.
For urban counties,
Angling Days = State Urban Angling Days * County Pop/State Pop in Urban
Counties
For rural counties,
Angling Days = State Rural Angling Days * County Pop/State Pop in Rural
Counties
EPA determined urban and rural population by State by summing the
1999 county populations for the State's urban and rural counties
respectively. EPA determined each county's urban/rural status using
definitions developed by the U.S. Department of Agriculture (as
included in NORSIS 1997). These index values are based upon the
estimated number of angling days by residents living near the facility.
The index value for each facility is a measure of the facility's share
of the total angling days estimated at all in scope facilities located
on a similar waterbody.
The analysis then proceeded by waterbody type.
Estuaries
National baseline losses and benefits for estuaries were based on
the Salem and Tampa Bay case studies. The case studies were
extrapolated to other facilities on the basis of regional fishery
types, in an effort to reflect the different types of fisheries that
are impacted in various regions of the country's coastal waters. As
such, the Tampa Bay case study results were applied to estuary
facilities located in Florida and other Gulf Coast States, and the
Salem results were applied to all remaining estuary facilities (note
that the Salem results used for the extrapolation differ from the case
study results presented above in order to reflect losses without a
screen currently in place at the facility). Ideally, a West Coast
facility would have served as the basis of extrapolation to estuarine
facilities along the Pacific Coast, but EPA could not develop a
suitable case study for that purpose in time for this proposal.
However, EPA intends to develop such a western estuary case study and
report its findings in an anticipated forthcoming Notice of Data
Availability.
In order to extrapolate baseline losses from the Salem and Big Bend
facilities to all in scope facilities on estuaries, EPA calculated an
index of angling activity for each of these in scope facilities. The
angling index is a percentage value that ranges from 0 to 1. Dividing
baseline losses at a facility by the index value provides an estimate
of total baseline losses at all in scope facilities located on
waterbodies in the same category.
Rivers and Lakes
EPA combined rivers, lakes and reservoirs into one class of
freshwater-based facilities (Great Lakes are not included in this
group, and were considered separately). The waterbody classifications
for freshwater rivers and lakes/reservoirs were grouped together for
the extrapolation due to similar ecological and hydrological
characteristics of freshwater systems used as cooling water. The
majority of these hydrologic systems have undergone some degree of
modification for purposes such as water storage, flood control, and
navigation. The degree of modification can vary very little or quite
dramatically. A facility falling into the lake/reservoir category may
withdraw cooling water from a lake that has been reclassified as a
reservoir due to the addition of an earthen dam, or from a reservoir
created by the diversion of a river through a diversion canal for use
as a cooling lake. The species composition and ecology of these two
waterbodies may vary greatly. While the ecology of river systems and
lakes or reservoirs are considerably different, due to structural
modifications these two classifications may be quite similar
ecologically depending on the waterbody in question. For example, many
river systems, including the Ohio River, are now broken up into a
series of navigational pools controlled by dams that may function more
similarly to a reservoir than a naturally flowing river.
Baseline losses and benefits in the Ohio case study were based on
29 in scope facilities in the Ohio River case study area. The Agency
extrapolated these losses to all in scope facilities on other
freshwater rivers, lakes, and reservoirs.
Oceans and Great Lakes
Oceans and Great Lakes estimates were based on extrapolations from
the Pilgrim and JR Whiting facility case studies, respectively. For
these two facilities (and their associated waterbody types), the
valuation method applied by EPA in the national extrapolations was
based on the Habitat-based Replacement Cost approach, which reflects
values for addressing a much greater number of impacted species (not
just the small share that are recreational or commercial species that
are landed by anglers). For example, at JR Whiting, the benefits
transfer approach developed values for recreational angling amounted to
only 4 percent of the estimated total impingement losses, and reflected
only 0.02 percent of the age 1 fish lost due to impingement. At
Pilgrim, the benefits transfer approach reflected recreational losses
for only 0.5 percent of the entrained age 1 equivalent fish at that
site. Because the Agency was able to
[[Page 17202]]
develop HRC values for these sites and recreational fishery impacts
were such a small part of the impacts, EPA extrapolated only based on
HRC estimates and used only the flow-based (MGD) index for oceans and
the Great Lakes.
Results
The results of the index calculations for operational flow and
angling effort used for extrapolating case study baseline losses to
national baseline losses for all in scope facilities are reported in
Exhibit 23 below.
Exhibit 23.--Flow and Angling Indices
------------------------------------------------------------------------
Percent of
Normalized in scope
Waterbody Type Based on MGD angling
percent base
------------------------------------------------------------------------
Estuary-N. Atlantic......... Salem........... 4.39 2.10
Estuary-S. Atlantic......... 4 Tampa Bay 19.24 20.28
facilities.
Freshwater systems.......... 29 Ohio River 9.30 12.34
facilities.
Great Lake.................. JR Whiting...... 3.92 13.89
Ocean....................... Pilgrim......... 3.42 6.54
------------------------------------------------------------------------
Waterbody
EPA further tailored its extrapolation approach, so that monetized
benefits estimates are based on available data for similar types of
waterbody settings. Thus, for example, the case study results for the
Salem facility (located in the Delaware Estuary) and the Tampa
facilities are applied (on a per MGD and angling day index basis) only
to other facilities located in estuary waters. Likewise, results from
Ohio River facilities are applied to inland freshwater water cooling
water intake structures (excluding facilities on the Great Lakes), and
losses estimated for the Pilgrim facility are applied to facilities
using ocean waters at their intakes, and results for J.R. Whiting are
used for the Great Lakes facilities.
As noted above, the waterbody classifications for freshwater rivers
and lakes or reservoirs were grouped together for the extrapolation due
to similar ecological and hydrological characteristics of freshwater
systems used as cooling water. The majority of these hydrologic systems
have undergone some degree of modification for purposes such as water
storage, flood control, and navigation. Due to structural
modifications, these freshwater waterbody types be quite similar
ecologically. For example, many river systems, including the Ohio
River, are now broken up into a series of navigational pools controlled
by dams that may function more similarly to a reservoir than a
naturally flowing river.
The natural species distribution, genetic movement, and seasonal
migration of aquatic organisms that may be expected in a natural system
is affected by factors such as dams, stocking of fish, and water
diversions. Since the degree of modification of inland waterbodies and
the occurrence of fish stocking could not be determined for every
cooling water source, the waterbody categories ``freshwater rivers'',
and ``lakes/reservoirs'' were grouped together.
The facilities chosen for extrapolation are expected to have
relatively average benefits per MGD and angling day index, for their
respective waterbody types. Benefits per MGD and angling day index are
not expected to be extremely high or low relative to other facilities.
EPA was careful not to use facilities that were unusual in this regard.
Salem is located in the transitional zone of the estuary, a lesser
productive part of the estuary.
The use of flow and angler day basis for extrapolation has some
practical advantages and basis in logic; however, it also has some less
than fully satisfactory implications. The advantages of using this
extrapolation approach include:
Feasibility of application, because the extrapolation
relies on waterbody type, angler demand, and MGD data that are
available for all in scope facilities.
Selectively extrapolating case study results to facilities
on like types of waterbodies reflects the type of aquatic setting
impacted, which is intended to capture the number and types of species
impacted by impingement and entrainment at such facilities (i.e.,
impacts at facilities on estuaries are more similar to impacts at other
estuary-based cooling water intake structures than they are to
facilities on inland waters).
Flow in MGD is a useful proxy for the scale of operation
at cooling water intake structures, a variable that typically will have
a large impact on baseline losses and potential regulatory benefits.
While there may be a high degree of variability in the
actual losses (and benefits) per MGD across facilities that impact
similar waterbodies, the extrapolations are expected to be reasonably
accurate on average for developing an order-of-magnitude national-level
estimate of benefits.
The recreational participation level (angler day) variable
provides a logical basis to reflect the extent of human user demands
for the fishery and other resources affected by impingement and
entrainment.
The estimates are not biased in either direction.
Some of the disadvantages of the use of extrapolating results on
the basis of waterbody type, recreational angling day data, and
operational flows (MGD) include:
The approach may not reflect all of the variability that
exists in impingement and entrainment impacts (and monetized losses or
benefits) within waterbody classifications. For example, within and
across U.S. estuaries, there may be different species, numbers of
individuals, and life stages present at different cooling water intake
structures.
The approach may not reflect all of the variability that
exists in impingement and entrainment impacts (and monetized losses or
benefits) across operational flow levels (MGD) at different facilities
within a given waterbody type.
Extrapolating to national benefits according to flow (MGD), angling
levels, and waterbody type, as derived from estimates for a small
number of case studies, may introduce inaccuracies into national
estimates. This is because the three variables used as the basis for
the extrapolation (MGD, recreational angling days, and waterbody type)
may not account for all of the variability expected in site-specific
benefits levels. The case studies may not reflect the average or
``typical'' cooling water intake structures impacts on a given type of
waterbody (i.e., the extrapolated results might under- or over-state
the physical and dollar value of impacts per MGD and fishing day index,
by
[[Page 17203]]
waterbody type). The inaccuracies introduced to the national-level
estimates by this extrapolation approach are of unknown magnitude or
direction (i.e., the estimates may over- or understate the anticipated
national-level benefits), however EPA has no data to indicate that the
case study results are atypical for each waterbody type.
2. Results of National Benefits Extrapolation
National benefits for 3 regulatory compliance options were
estimated for the 539 facilities found to be in scope of the section
316(b) Phase II rulemaking. The benefits estimates were derived in a
multi-step process that used operational flows and the recreational
fishing index as the basis for extrapolating case study results to the
national level.
In the first step, EPA used the baseline losses (dollars per year)
derived from the analysis of facilities examined in the case studies.
In some instances, the case study facilities had already implemented
some measures to reduce impingement and/or entrainment. In such cases,
baseline losses as appropriate to the national extrapolation were
estimated using data for years prior to the facilities' actions (e.g.,
based on impingement and entrainment before the impingement deterrent
net was installed at JR Whiting). These pre-action baselines provide a
basis for examining other facilities that have not yet taken actions to
reduce impingement and/or entrainment. Baseline losses at the selected
case study facilities are summarized in Exhibit 24.
Exhibit 24.--Baseline Losses From Selected Case Studies
[Baseline losses from selected case studies, values in thousands of 2001$]
----------------------------------------------------------------------------------------------------------------
Impingement Entrainment
Case study -----------------------------------------------------------------------------
Low Mid High Low Mid High
----------------------------------------------------------------------------------------------------------------
Salem............................. $528 $704 $879 $16,766 $23,657 $30,548
Brayton........................... 9 450 890 235 14,261 28,288
Contra Costa...................... 2,666 5,726 8,785 6,413 13,630 20,847
Pittsburgh........................ 10,096 22,268 34,440 19,166 40,760 62,354
4 Tampa Bay Facilities............ 801 809 817 20,007 20,454 20,901
29 Ohio Facilities................ 3,452 4,052 4,652 9,257 9,584 9,912
Monroe............................ 742 3,190 5,639 1,307 7,604 13,902
JR Whiting........................ 358 797 1,235 42 873 1,703
Pilgrim Nuclear................... 4 256 507 642 4,960 9,279
----------------------------------------------------------------------------------------------------------------
In the second step, EPA extrapolated the baseline dollar loss
estimates from the case study models to all of the remaining 539
facilities by multiplying the index of operational flow for each
facility by the estimated dollar losses at baseline per unit flow,
based on each facility's source waterbody type, were extrapolated. This
resulted in a national estimate of baseline monetizable losses for all
539 in scope facilities as summarized in Exhibit 25.
Exhibit 25.--Baseline Losses Extrapolated to all In Scope Facilities Using MGD Only
[Baseline losses extrapolated to all in scope facilities--MGD only, values in thousands of 2001$]
----------------------------------------------------------------------------------------------------------------
Impingement Entrainment
Facility Case study -----------------------------------------------------------------
Low Mid High Low Mid High
----------------------------------------------------------------------------------------------------------------
Estuary, Non Gulf
----------------------------------------------------------------------------------------------------------------
Salem........................ Delaware....... $528 $704 $879 $16,766 $23,657 $30,548
Brayton Point................ Brayton........ 9 450 890 235 14,261 28,288
Contra Costa................. California..... 2,666 5,726 8,785 6,413 13,630 20,847
Pittsburgh................... California..... 10,096 22,268 34,440 19,166 40,760 62,354
All Other In Scope........... ............. 11,167 14,875 18,583 354,346 499,991 645,636
All 78 In Scope.............. ............. 24,467 44,022 63,578 396,925 592,298 787,672
----------------------------------------------------------------------------------------------------------------
Estuary, Gulf Coast
----------------------------------------------------------------------------------------------------------------
4 Tampa Facilities........... Tampa Bay...... 801 809 817 20,007 20,454 20,901
All Other In Scope........... ............. 3,361 3,395 3,429 83,982 85,857 87,732
All 30 In Scope.............. ............. 4,162 4,204 4,247 103,989 106,311 108,633
----------------------------------------------------------------------------------------------------------------
Freshwater
----------------------------------------------------------------------------------------------------------------
29 Ohio Facilities........... Ohio........... 3,452 4,052 4,652 9,257 9,584 9,912
Monroe....................... Monroe......... 742 3,190 5,639 1,307 7,604 13,902
All Other In Scope........... ............. 33,317 39,111 44,906 89,348 92,514 95,679
All 393 In Scope............. ............. 37,511 46,353 55,196 99,911 109,702 119,493
----------------------------------------------------------------------------------------------------------------
Great Lake
----------------------------------------------------------------------------------------------------------------
JR Whiting................... JR Whiting..... 358 797 1,235 42 873 1,703
All Other In Scope........... ............. 8,774 19,523 30,271 1,025 21,385 41,745
All 16 In Scope.............. ............. 9,132 20,319 31,506 1,067 22,257 43,448
----------------------------------------------------------------------------------------------------------------
[[Page 17204]]
Ocean
----------------------------------------------------------------------------------------------------------------
Pilgrim Nuclear.............. Pilgrim........ 4 256 507 642 4,960 9,279
All Other In Scope........... ............. 115 7,219 14,323 18,127 140,146 262,165
All 22 In Scope.............. ............. 119 7,475 14,830 18,769 145,106 271,444
----------------------------------------------------------------------------------------------------------------
Total All Facilities
----------------------------------------------------------------------------------------------------------------
All 539 In Scope............. ............. 75,390 122,374 169,357 620,661 975,675 1,330,690
----------------------------------------------------------------------------------------------------------------
In the third step, the Agency extrapolated baseline losses from the
case studies were also developed using the angling index values for
each case study. The calculation of the index is described above. The
results are summarized in Exhibit 26.
Exhibit 26.--Baseline Losses Extrapolated--Angling Days Only
[Values in thousands of 2001$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impingement Entrainment
Facility Case Study -----------------------------------------------------------------------------------
Low Mid High Low Mid High
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estuary, Non Gulf
--------------------------------------------------------------------------------------------------------------------------------------------------------
Salem................................... Delaware.................. $528 $704 $879 $16,766 $23,657 $30,548
Brayton Point........................... Brayton................... 9 450 890 235 14,261 28,288
Contra Costa............................ California................ 2,666 5,726 8,785 6,413 13,630 20,847
Pittsburgh.............................. California................ 10,096 22,268 34,440 19,166 40,760 62,354
All Other In Scope...................... .......................... 23,840 31,755 39,671 756,471 1,067,399 1,378,327
All 78 In Scope......................... .......................... 37,139 60,903 84,667 799,050 1,159,706 1,520,363
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estuary, Gulf Coast
--------------------------------------------------------------------------------------------------------------------------------------------------------
4 Tampa Facilities...................... Tampa Bay................. $801 $809 $817 $20,007 $20,454 $20,901
All Other In Scope...................... .......................... 3,148 3,180 3,212 78,664 80,421 82,177
All 30 In Scope......................... .......................... 3,949 3,989 4,029 98,672 100,875 103,078
--------------------------------------------------------------------------------------------------------------------------------------------------------
Freshwater
--------------------------------------------------------------------------------------------------------------------------------------------------------
29 Ohio Facilities...................... Ohio...................... $3,452 $4,052 $4,652 $9,257 $9,584 $9,912
Monroe.................................. Monroe.................... 742 3,190 5,639 1,307 7,604 13,902
All Other In Scope...................... .......................... 23,203 27,238 31,273 62,224 64,429 66,633
All 393 In Scope........................ .......................... 27,396 34,480 41,564 72,787 81,617 90,447
--------------------------------------------------------------------------------------------------------------------------------------------------------
Great Lake
--------------------------------------------------------------------------------------------------------------------------------------------------------
JR Whiting.............................. JR Whiting................ $358 $797 $1,235 $42 $873 $1,703
All Other In Scope...................... .......................... 2,231 4,965 7,698 261 5,438 10,616
All 16 In Scope......................... .......................... 2,589 5,761 8,933 302 6,311 12,319
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ocean
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pilgrim Nuclear......................... Pilgrim................... $4 $256 $507 $642 $4,960 $9,279
All Other In Scope...................... .......................... 56 3,529 7,001 8,861 68,504 128,147
All 22 In Scope......................... .......................... 60 3,784 7,508 9,502 73,464 137,426
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total All Facilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
All 539 In Scope........................ .......................... $71,134 $108,918 $146,701 $980,314 $1,421,974 $1,863,633
--------------------------------------------------------------------------------------------------------------------------------------------------------
As a fourth step, EPA calculated the average baseline losses of the
flow-based results and the angling-based results. This develops results
that reflect an equal-weighted extrapolation measure of each case study
facility's baseline loss, based on it's percent share of flow and
recreational fishing relative to all in scope facilities in each
waterbody type. The results of this average are reported in Exhibit 27.
[[Page 17205]]
Exhibit 27.--Baseline Losses Extrapolated to All In scope Facilities--Means of MGD and Angling
[Values in thousands of 2001$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impingement Entrainment
Facility Case Study -----------------------------------------------------------------------------------
Low Mid High Low Mid High
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estuary, Non Gulf
--------------------------------------------------------------------------------------------------------------------------------------------------------
Salem................................... Delaware.................. $528 $704 $879 $16,766 $23,657 $30,548
Brayton Point........................... Brayton................... 9 450 890 235 14,261 28,288
Contra Costa............................ California................ 2,666 5,726 8,785 6,413 13,630 20,847
Pittsburgh.............................. California................ 10,096 22,268 34,440 19,166 40,760 62,354
All Other In Scope...................... .......................... 17,503 23,315 29,127 555,409 783,695 1,011,981
All 78 In Scope......................... .......................... 30,803 52,463 74,122 597,988 876,002 1,154,017
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estuary. Gulf Coast
--------------------------------------------------------------------------------------------------------------------------------------------------------
4 Tampa Facilities...................... Tampa Bay................. $801 $809 $817 $20,007 $20,454 $20,901
All Other In Scope...................... .......................... 3,255 3,288 3,321 81,323 83,139 84,955
All 30 In Scope......................... .......................... 4,055 4,097 4,138 101,330 103,593 105,856
--------------------------------------------------------------------------------------------------------------------------------------------------------
Freshwater
--------------------------------------------------------------------------------------------------------------------------------------------------------
29 Ohio Facilities...................... Ohio...................... $3,452 $4,052 $4,652 $9,257 $9,584 $9,912
Monroe.................................. Monroe.................... 742 3,190 5,639 1,307 7,604 13,902
All Other In Scope...................... .......................... 28,260 33,175 38,089 75,786 78,471 81,156
All 393 In Scope........................ .......................... 32,453 40,417 48,380 86,349 95,660 104,970
--------------------------------------------------------------------------------------------------------------------------------------------------------
Great Lake
--------------------------------------------------------------------------------------------------------------------------------------------------------
JR Whiting.............................. JR Whiting................ $358 $797 $1,235 $42 $873 $1,703
All Other In Scope...................... .......................... 5,503 12,244 18,985 643 13,412 26,180
All 16 In Scope......................... .......................... 5,861 13,040 20,220 685 14,284 27,884
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ocean
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pilgrim Nuclear......................... Pilgrim................... $4 $256 $507 $642 $4,960 $9,279
All Other In Scope...................... .......................... 86 5,374 10,662 13,494 104,325 195,156
All 22 In Scope......................... .......................... 90 5,629 11,169 14,135 109,285 204,435
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total All Facilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
All 539 In Scope........................ .......................... $73,262 $115,642 $158,029 $800,487 $1,198,824 $1,597,162
--------------------------------------------------------------------------------------------------------------------------------------------------------
In the fifth step, EPA selected the set of extrapolation values the
Agency believes are the most reflective of the baseline loss scenarios
that applied in each waterbody type. For estuaries and freshwater
facilities, EPA used the midpoint of its loss estimates of impingement
and entrainment at the case study facilities, and then applied the
average of the MGD- and angler-based extrapolation results. This
provides estimates of national baseline losses that reflect the
broadest set of values and parameters (i.e., the full range of loss
estimates, plus the application of all three extrapolation variables).
For oceans and the Great Lakes, EPA developed national-scale
estimates using its HRC-based loss estimates, because EPA was able to
develop HRC estimates for these sites, and because these HRC values are
more comprehensive than the values derived using the more traditional
benefits transfer approach. The HRC estimates cover losses for a much
larger percentage of fish lost due to impingement and entrainment,
whereas the benefits transfer approach addressed losses only for a
small share of the impacted fish. Since recreational fish impacts were
an extremely small share of the total fish impacts at these sites, EPA
extrapolated the HRC findings using only the MGD-based index (i.e., the
angler-based index was not relevant).
The results of EPA's assessment of its best estimates for baseline
losses due to impingement and entrainment are shown in Exhibit 28.
Exhibit 28.--Best Estimate Baseline Losses
[Best estimate baseline losses, values in thousands of 2001$]
----------------------------------------------------------------------------------------------------------------
Facility Case study Impingement Entrainment
----------------------------------------------------------------------------------------------------------------
Salem...................................... Delaware..................... $704 $23,657
Brayton Point.............................. Brayton...................... 450 14,261
Contra Costa............................... California................... 5,726 13,630
Pittsburgh................................. California................... 22,268 40,760
All Other In Scope......................... ............................. 23,315 783,695
All 78 In Scope............................ ............................. 52,463 876,002
----------------------------------------------------------------------------------------------------------------
[[Page 17206]]
Estuary and Gulf Coast
----------------------------------------------------------------------------------------------------------------
4 Tampa Facilities......................... Tampa Bay.................... $809 $20,454
All Other In Scope......................... ............................. 3,288 83,139
All 30 In Scope............................ ............................. 4,097 103,593
----------------------------------------------------------------------------------------------------------------
Freshwater
----------------------------------------------------------------------------------------------------------------
29 Ohio Facilities......................... Ohio......................... $4,052 $9,584
Monroe..................................... Monroe....................... 3,190 7,604
All Other In Scope......................... ............................. 30,891 73,069
All 393 In Scope........................... ............................. 38,133 90,258
----------------------------------------------------------------------------------------------------------------
Great Lake
----------------------------------------------------------------------------------------------------------------
JR Whiting................................. JR Whiting................... $1,235 $1,703
All Other In Scope......................... ............................. 30,271 41,745
All 16 In Scope............................ ............................. 31,506 43,448
----------------------------------------------------------------------------------------------------------------
Ocean
----------------------------------------------------------------------------------------------------------------
Pilgrim Nuclear............................ Pilgrim...................... $507 $9,279
All Other In Scope......................... ............................. 14,323 262,165
All 22 In Scope............................ ............................. 14,830 271,444
----------------------------------------------------------------------------------------------------------------
Total All Facilities
----------------------------------------------------------------------------------------------------------------
All 539 In Scope........................... ............................. $141,029 $1,384,745
----------------------------------------------------------------------------------------------------------------
In the sixth and final step, EPA estimated the potential benefits
of each regulatory option by applying a set of estimated percent
reductions in baseline losses. The percent reduction in baseline losses
for each facility reflects EPA assessment of (1) regulatory baseline
conditions at the facility (i.e., current practices and technologies in
place), and (2) the percent reductions in impingement and entrainment
that EPA estimated would be achieved at each facility that the Agency
believes would be adopted under each regulatory option. The options
portrayed in the Exhibits correspond to the following technical
descriptions of each alternative:
Option 1 requires all Phase II existing facilities located on
different categories of waterbodies to reduce intake capacity
commensurate with the use of closed-cycle, recirculating cooling water
systems based on location and the percentage of the source waterbody
they withdraw for cooling;
Option 2 is variation of Option 1, but embodies a two-track
approach whereby some facilities may use site-specific studies to
comply using alternative approaches;
Option 3 (the Agency's preferred option) requires all Phase II
existing facilities to reduce impingement and entrainment to levels
established based on the use of design and construction or operational
measures, except for facilities that are below flow thresholds for
lakes and rivers;
Option 3a is a variation of Option 3, wherein all Phase II existing
facilities are required to reduce impingement and entrainment to levels
established based on the use of design and construction or operational
measures;
Option 4 requires all Phase II existing facilities to reduce intake
capacity commensurate with the use of closed-cycle, recirculating
cooling water systems;
Option 5 requires that all Phase II existing facilities reduce
intake capacity commensurate with the use of dry cooling systems.
The results of EPA approach to estimating national benefits are
shown in Exhibits 29 through 32 (note that the percent reductions shown
in these exhibits are the flow-weighted average reductions across all
facilities in each waterbody category for each regulatory option).
Exhibit 29.--Impingement Benefits for Various Options--By Reduction Level
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percentage Reductions
Baseline -----------------------------------------------------------------------------
Waterbody Type Facility impingement OPTION 1 OPTION 2 OPTION 3 OPTION 3a OPTION 4 OPTION 5
loss percent percent percent percent percent percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estuary--NonGulf.................... All 78 In Scope........ $52,463 64.5 47.5 33.2 25.0 40.9 97.5
Estuary--Gulf....................... All 30 In Scope........ 4,097 63.2 45.9 26.5 30.0 45.3 96.7
Freshwater.......................... All 393 In Scope....... 40,417 47.3 47.3 47.3 46.7 59.0 98.0
Great Lake.......................... All 16 In Scope........ 31,506 80.0 80.0 80.0 77.0 88.6 96.3
Ocean............................... All 22 In Scope........ 14,830 73.2 59.0 50.6 47.2 59.7 88.8
ALL................................. All 539 In Scope....... 143,312
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 17207]]
Exhibit 30.--Impingement Benefits for Various Options--By Benefit Level
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baseline Benefits (Values in thousands of 2001$)
Waterbody type Facility impingement -----------------------------------------------------------------------------
loss OPTION 1 OPTION 2 OPTION 3 OPTION 3a OPTION 4 OPTION 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estuary--NonGulf.................... All 78 In Scope........ $52,463 $33,834 $24,909 $17,418 $13,125 $21,470 $51,141
Estuary--Gulf....................... All 30 In Scope........ 4,097 2,588 1,882 1,087 1,230 1,856 3,961
Freshwater.......................... All 393 In Scope....... 40,417 19,117 19,117 19,117 18,855 23,828 39,605
Great Lake.......................... All 16 In Scope........ 31,506 25,205 25,205 25,205 24,260 27,900 30,326
Ocean............................... All 22 In Scope........ 14,830 10,849 8,746 7,503 6,995 8,858 13,168
ALL................................. All 539 In Scope....... 143,312 91,593 79,858 70,329 64,465 83,911 138,201
--------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit 31.--Entrainment Benefits for Various Options--By reduction Level
--------------------------------------------------------------------------------------------------------------------------------------------------------
Entrainment percentage reductions
Baseline -----------------------------------------------------------------------------
Waterbody type Facility loss OPTION 1 OPTION 2 OPTION 3 OPTION 3a OPTION 4 OPTION 5
percent percent percent percent percent percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estuary--NonGulf.................... All 78 In Scope........ $876,002 67.2 59.1 48.5 47.1 79.2 97.5
Estuary--Gulf....................... All 30 In Scope........ 103,593 66.9 52.3 47.0 47.8 79.3 96.7
Freshwater.......................... All 393 In Scope....... 95,660 12.4 12.4 12.4 44.2 72.7 98.0
Great Lake.......................... All 16 In Scope........ 43,448 57.8 57.8 57.8 57.8 88.6 96.3
Ocean............................... All 22 In Scope........ 271,444 74.2 58.9 45.0 45.0 74.1 88.8
ALL................................. All 539 In Scope....... 1,390,147
--------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit 32.--Entrainment Benefits for Various Options--By Benefit Level
--------------------------------------------------------------------------------------------------------------------------------------------------------
Entrainment benefit (Values in thousands of 2001$)
Waterbody type Facility Baseline -----------------------------------------------------------------------------
loss OPTION 1 OPTION 2 OPTION 3 OPTION 4 OPTION 5 OPTION 6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estuary--NonGulf.................... All 78 In Scope........ $876,002 $588,552 $517,960 $424,708 $412,696 $693,420 $853,940
Estuary--Gulf....................... All 30 In Scope........ 103,593 69,324 54,206 48,645 49,508 82,186 100,175
Freshwater.......................... All 393 In Scope....... 95,660 11,883 11,883 11,883 42,277 69,575 93,738
Great Lake.......................... All 16 In Scope........ 43,448 25,092 25,092 25,092 25,092 38,474 41,820
Ocean............................... All 22 In Scope........ 271,444 201,301 159,809 122,098 122,098 201,025 241,020
ALL................................. All 539 In Scope....... 1,390,147 896,152 768,950 632,426 651,671 1,084,681 1,330,694
--------------------------------------------------------------------------------------------------------------------------------------------------------
In addition, EPA developed a more generic illustration of potential
benefits, based on a broad range (from 10 percent to 90 percent) of
potential reductions in impingement and entrainment. These illustrative
results are shown in Exhibit 33. Finally, the benefits estimated for
Option 3, the Agency's preferred option, are detailed in Exhibit 34.
Exhibit 33.--Summary of Potential Benefits Associated With Various Impingement and Entrainment Reduction Levels
----------------------------------------------------------------------------------------------------------------
Benefits (values in thousands of
2001$)
Reduction level percent -------------------------------------
Impingement Entrainment
----------------------------------------------------------------------------------------------------------------
10......................................... All 539 In Scope............. $14,331 $139,015
20......................................... All 539 In Scope............. 28,662 278,029
30......................................... All 539 In Scope............. 42,994 417,044
40......................................... All 539 In Scope............. 57,325 556,059
50......................................... All 539 In Scope............. 71,656 695,073
60......................................... All 539 In Scope............. 85,987 834,088
70......................................... All 539 In Scope............. 100,319 973,103
80......................................... All 539 In Scope............. 114,650 1,112,118
90......................................... All 539 In Scope............. 128,981 1,251,132
----------------------------------------------------------------------------------------------------------------
Exhibit 34.--Summary of Benefits From Impingement Controls Associated With Option 3
----------------------------------------------------------------------------------------------------------------
Benefits (values in thousands of
2001$)
Waterbody type Facility -------------------------------------
Impingement Entrainment
----------------------------------------------------------------------------------------------------------------
Estuary--NonGulf........................... All 78 In Scope.............. $17,418 $424,708
Estuary--Gulf.............................. All 30 In Scope.............. 1,087 48,645
Freshwater................................. All 393 In Scope............. 19,117 11,883
[[Page 17208]]
Great Lake................................. All 16 In Scope.............. 25,205 25,092
Ocean...................................... All 22 In Scope.............. 7,503 122,098
ALL........................................ All 539 In Scope............. 70,329 632,426
----------------------------------------------------------------------------------------------------------------
Under today's proposal, facilities can choose the Site-Specific
Determination of Best Technology Available in Sec. 125.94(a) in which a
facility can demonstrate to the Director that the cost of compliance
with the applicable performance standards in Sec. 125.94(b) would be
significantly greater than the costs considered by EPA when
establishing these performance standards, or the costs would be
significantly greater than the benefits of complying with these
performance standards. EPA expects that if facilities were to choose
this approach, then the overall national benefits of this rule will
decrease markedly. This is because under this approach facilities would
choose the lowest cost technologies possible and not necessarily the
most effective technologies to reduce impingement and entrainment at
the facility.
X. Administrative Requirements
A. E.O. 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The order defines a ``significant regulatory action''
as one that is likely to result in a rule that may:
Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this proposed rule is a ``significant regulatory
action.'' As such, this action was submitted to OMB for review. Changes
made in response to OMB suggestions or recommendations will be
documented in the public record.
B. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA has
prepared an Information Collection Request (ICR) document (EPA ICR No.
2060.01) and you may obtain a copy from Susan Auby by mail at
Collection Strategies Division; U.S. Environmental Protection Agency
(2822); 1200 Pennsylvania Ave., NW.; Washington, DC 20007, by e-mail at
[email protected], or by calling (202) 260-49011. You also can
download a copy off the Internet at http://www.epa.gov/icr. The
information collection requirements relate to existing electric
generation facilities with design intake flows of 50 million gallons
per day or more collecting information for preparing comprehensive
demonstration studies, monitoring of impingement and entrainment,
verifying compliance, and preparing yearly reports.
The total burden of the information collection requirements
associated with today's proposed rule is estimated at 4,251,240 hours.
The corresponding estimates of cost other than labor (labor and non-
labor costs are included in the total cost of the proposed rule
discussed in Section VIII of this preamble) is $191 million for 539
facilities and 44 States and one Territory for the first three years
after promulgation of the rule. Non-labor costs include activities such
as capital costs for remote monitoring devices, laboratory services,
photocopying, and the purchase of supplies. The burden and costs are
for the information collection, reporting, and recordkeeping
requirements for the three-year period beginning with the assumed
effective date of today's rule. Additional information collection
requirements will occur after this initial three-year period as
existing facilities continue to be issued permit renewals and such
requirements will be counted in a subsequent information collection
request. EPA does not consider the specific data that would be
collected under this proposed rule to be confidential business
information. However, if a respondent does consider this information to
be confidential, the respondent may request that such information be
treated as confidential. All confidential data will be handled in
accordance with 40 CFR 122.7, 40 CFR part 2, and EPA's Security Manual
Part III, Chapter 9, dated August 9, 1976.
Burden is defined as the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
Compliance with the applicable information collection requirements
imposed under this proposed rule (see Secs. 122.21(r), 125.95, 125.96,
125.97, and 125.98) is mandatory. Existing facilities would be required
to perform several data-gathering activities as part of the permit
renewal application process. Today's proposed rule would require
several distinct types of information collection as part of the NPDES
renewal application. In general, the information would be used to
identify which of the requirements in today's proposed rule apply to
the existing facility, how the existing facility would meet those
requirements, and whether the existing facility's cooling water intake
structure reflects the best technology available for minimizing
environmental impact.
[[Page 17209]]
Categories of data required by today's proposed rule follow.
Source waterbody data for determining appropriate
requirements to apply to the facility, evaluating ambient conditions,
and characterizing potential for impingement and entrainment of all
life stages of fish and shellfish by the cooling water intake
structure;
Intake structure data, consisting of intake structure
design and a facility water balance diagram, to determine appropriate
requirements and characterize potential for impingement and entrainment
of all life stages of fish and shellfish;
Information on design and construction technologies
implemented to ensure compliance with applicable requirements set forth
in today's proposed rule; and
Information on supplemental restoration measures proposed
for use with or in lieu of design and construction technologies to
minimize adverse.
In addition to the information requirements of the permit renewal
application, NPDES permits normally specify monitoring and reporting
requirements to be met by the permitted entity. Existing facilities
that fall within the scope of this proposed rule would be required to
perform biological monitoring as required by the Director to
demonstrate compliance, and visual or remote inspections of the cooling
water intake structure and any additional technologies. Additional
ambient water quality monitoring may also be required of facilities
depending on the specifications of their permits. The facility would be
expected to analyze the results from its monitoring efforts and provide
these results in an annual status report to the permitting authority.
Finally, facilities would be required to maintain records of all
submitted documents, supporting materials, and monitoring results for
at least three years. (Note that the Director may require that records
be kept for a longer period to coincide with the life of the NPDES
permit.)
All impacted facilities would carry out the specific activities
necessary to fulfill the general information collection requirements.
The estimated burden includes developing a water balance diagram that
can be used to identify the proportion of intake water used for
cooling, make-up, and process water. Facilities would also gather data
to calculate the reduction in impingement mortality and entrainment of
all life stages of fish and shellfish that would be achieved by the
technologies and operational measures they select. The burden estimates
include sampling, assessing the source waterbody, estimating the
magnitude of impingement mortality and entrainment, and reporting
results in a comprehensive demonstration study. The burden also
includes conducting a pilot study to evaluate the suitability of the
technologies and operational measures based on the species that are
found at the site.
Some of the facilities (those choosing to use restoration measures
to maintain fish and shellfish) would need to prepare a plan
documenting the restoration measures they would implement and how they
would demonstrate that the restoration measures were effective. The
burden estimates incorporate the cost of preparing calculations,
drawings, and other materials supporting the proposed restoration
measures, as well as performing monitoring to verify the effectiveness
of the restoration measures.
Some facilities may choose to request a site-specific determination
of BTA because of costs significantly greater than those EPA considered
in establishing the performance standards or because costs are
significantly greater than the benefits of complying with the
performance standards. These facilities must perform a comprehensive
cost evaluation study and/or a valuation of the monetized benefits of
reducing impingement and entrainment, as well as submitting a site-
specific technology plan characterizing the design and construction
technologies, operational measures and restoration measures they have
selected.
Exhibit 35 presents a summary of the maximum burden estimates for a
facility to prepare a permit application and monitor and report on
cooling water intake structure operations as required by this rule.
Exhibit 35.--Maximum Burden and Costs per Facility for NPDES Permit Application and Monitoring and Reporting
Activities
----------------------------------------------------------------------------------------------------------------
Other direct
Activities Burden (hr) Labor cost costs (lump
sum) a
----------------------------------------------------------------------------------------------------------------
Start-up activities.......................................... 43 $1,964 $50
Permit application activities................................ 242 9,071 500
Source water baseline biological characterization data....... 265 10,622 750
Proposal for collection of information for comprehensive 271 11,407 1,000
demonstration study b.......................................
Source waterbody flow information............................ 116 3,794 100
Design and construction technology plan...................... 146 5,260 50
Impingement mortality and entrainment characterization studyb 5,264 289,061 13,000
Evaluation of potential cooling water intake structure 2,578 144,838 500
effectsb....................................................
Information for site-specific determination of BTA........... 692 32,623 200
Site-specific technology plan................................ 177 6,963 75
Verification monitoring plan................................. 128 5,489 1,000
--------------------------------------------------
Subtotal............................................... 9,922 521,092 17,225
==================================================
Biological monitoring (impingement sampling)................. 388 20,973 650
Biological monitoring (entrainment sampling)................. 776 42,044 4,000
Visual or remote inspections c............................... 253 8,994 100
Verification study d......................................... 122 5,927 500
Yearly status report activities.............................. 324 14,906 750
--------------------------------------------------
Subtotal............................................... 1,863 92,844 $6,000
----------------------------------------------------------------------------------------------------------------
a Cost of supplies, filing cabinets, photocopying, boat renting, etc.
[[Page 17210]]
b The Impingement Mortality and Entrainment Characterization Study and Evaluation of Potential CWIS Effects also
have capital, O&M and contracted service costs associated with them.
c Remote monitoring equipment also has capital and O&M costs associated with it.
d The verification monitoring also has contracted services associated with it.
EPA believes that all 44 States and one Territory with NPDES
permitting authority will undergo start-up activities in preparation
for administering the provisions of the proposed rule. As part of these
start-up activities, States and Territories are expected to train
junior technical staff to review materials submitted by facilities, and
then use these materials to evaluate compliance with the specific
conditions of each facility's NPDES permit.
Each State's/Territory's actual burden associated with reviewing
submitted materials, writing permits, and tracking compliance depends
on the number of new in-scope facilities that will be built in the
State/Territory during the ICR approval period. EPA expects that State
and Territory technical and clerical staff will spend time gathering,
preparing, and submitting the various documents. EPA's burden estimates
reflect the general staffing and level of expertise that is typical in
States/Territories that administer the NPDES permitting program. EPA
considered the time and qualifications necessary to complete various
tasks such as reviewing submitted documents and supporting materials,
verifying data sources, planning responses, determining specific permit
requirements, writing the actual permit, and conferring with facilities
and the interested public. Exhibit 36 provides a summary of the maximum
burden estimates for States/Territories performing various activities
with the proposed rule.
Exhibit 36.--Estimating State/Territory Maximum Burden and Costs for Activities
----------------------------------------------------------------------------------------------------------------
Other direct
Activities Burden (hr) Labor cost costs (lump
sum) a
----------------------------------------------------------------------------------------------------------------
Start-up activities (per State/Territory).................... 100 $3,496 $50
State/Territory permit issuance activities (per facility).... 811 32,456 300
Verification study review (per facility)..................... 21 689 50
Review of alternative regulatory requirements (per facility). 192 6,237 50
Annual State/Territory activities (per facility)............. 50 1,662 50
--------------------------------------------------
Subtotal............................................... 1,174 44,540 500
----------------------------------------------------------------------------------------------------------------
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information, unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
EPA requests comments on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, Collection Strategies Division; U.S. Environmental Protection
Agency (2822); 1200 Pennsylvania Ave., NW. Washington, DC 20460; and to
the Office of Information and Regulatory Affairs; Office of Management
and Budget; 725 17th Street, NW.; Washington, DC 20503, marked
``Attention: Desk Officer for EPA.'' Include the ICR number in any
correspondence. Because OMB is required to make a decision concerning
the ICR between 30 and 60 days after April 9, 2002, a comment is best
assured of having its full effect if OMB receives it by May 9, 2002.
The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
C. Unfunded Mandates Reform Act
1. UMRA Requirements
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with regulatory requirements.
EPA estimated total annualized (post-tax) costs of compliance for
the proposed rule to be $182 million ($2001). Of this total, $153
million is incurred by the private sector and $19.6 million is incurred
by State and local governments that operate in-scope facilities.\82\
Permitting authorities incur an additional $3.6 million to administer
the rule, including labor costs to write permits and to conduct
compliance monitoring and enforcement activities. EPA estimates that
the highest
[[Page 17211]]
undiscounted cost incurred by the private sector in any one year is
approximately $480 million in 2005. The highest undiscounted cost
incurred by government sector in any one year is approximately $42
million in 2005. Thus, EPA has determined that this rule contains a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and Tribal governments, in the aggregate, or the
private sector in any one year. Accordingly, EPA has prepared a written
statement under Sec. 202 of UMRA, which is summarized below.
---------------------------------------------------------------------------
\82\ In addition, 13 facilities owned by Tennessee Valley
Authority (TVA), a federal entity, incur $9.8 million in compliance
costs. The costs incurred by the federal government are not included
in this section.
---------------------------------------------------------------------------
2. Analysis of Impacts on Government Entities
Governments may incur two types of costs as a result of the
proposed regulation: (1) Direct costs to comply with the rule for
facilities owned by government entities; and (2) administrative costs
to implement the regulation. Both types of costs are discussed below.
a. Compliance Costs for Government-Owned Facilities
Exhibit 37 below provides an estimate of the number of government
entities that operate facilities subject to the proposed rule, by
ownership type and size of government entity. The exhibit shows that 23
large government entities operate 43 facilities subject to the proposed
regulation. There are 22 small government entities that operate 22
facilities subject to regulation. No small government entity operates
more than one affected facility. Of the 65 facilities that are owned by
government entities, 48 are owned by municipalities, eight are owned by
political subdivisions, seven are owned by state governments, and two
are owned by municipal marketing authorities.
Exhibit 37.--Number of Government Entities and Government-Owned Facilities
----------------------------------------------------------------------------------------------------------------
Number of government entities (by Number of facilities (by government
size) entity size)
Ownership type -----------------------------------------------------------------------------
Large Small Total Large Small Total
----------------------------------------------------------------------------------------------------------------
Municipality...................... 16 19 35 29 19 48
Municipal marketing authority..... 0 2 2 0 2 2
State Government.................. 4 0 4 7 0 7
Political Subdivision............. 3 1 4 7 1 8
-----------------------------------------------------------------------------
Total......................... 23 22 45 43 22 65
----------------------------------------------------------------------------------------------------------------
Exhibit 38 summarizes the annualized compliance costs incurred by
State, local, and Tribal governments for the proposed rule. The exhibit
shows that the estimated annualized compliance costs for all
government-owned facilities are $19.6 million. The 43 facilities owned
by large governments would incur costs of $13.6 million; the 22
facilities owned by small governments would incur costs of $6 million.
Exhibit 38.--Number of Regulated Government-Owned Facilities and
Compliance Costs by Size of Government for Proposed Rule
------------------------------------------------------------------------
Number of Compliance
facilities costs
Size of Government subject to (million
regulation $2001)
------------------------------------------------------------------------
Facilities Owned by Large Governments......... 43 $13.6
Facilities Owned by Small Governments......... 22 6.0
All Government-Owned Facilities............... 65 19.6
------------------------------------------------------------------------
EPA's analysis also considered whether the proposed rule may
significantly or uniquely affect small governments. EPA estimates that
22 facilities subject to the proposed rule are owned by small
governments (i.e., governments with a population of less than 50,000).
The total compliance cost for all the small government-owned facilities
incurring costs under the proposed rule is $6.0 million, or
approximately $273,000 per facility. The highest annualized compliance
costs for a government-owned facility is $965,000. In comparison, all
non-government-owned facilities subject to this rule are expected to
incur annualized compliance costs of $176 million, or $330,000 per
facility. The highest annualized cost for a facility not owned by a
small government is $4.3 million. EPA therefore concludes that these
costs do not significantly or uniquely affect small governments. The
Economic and Benefits Assessment provides more detail on EPA's analysis
of impacts on governments.
b. Administrative Costs
The requirements of Section 316(b) are implemented through the
NPDES (National Pollutant Discharge Elimination System) permit program.
Forty-five states and territories currently have NPDES permitting
authority under section 402(b) of the Clean Water Act (CWA). EPA
estimates that states and territories will incur four types of costs
associated with implementing the requirements of the proposed rule: (1)
Start-up activities; (2) first permit issuance activities; (3)
repermitting activities, and (4) annual activities. EPA estimates that
the total annualized cost for these activities will be $3.6 million.
Exhibit 39 below presents the annualized costs of the major
administrative activities.
Exhibit 39.--Annualized Government Administrative Costs (million $2001)
------------------------------------------------------------------------
Activity Cost
------------------------------------------------------------------------
Start-up Activities........................................ $0.02
First Permit Issuance Activities........................... 1.61
Repermitting Activities.................................... 1.05
Annual Activities.......................................... 0.94
------------
Total...................................................... 3.62
------------------------------------------------------------------------
3. Consultation
EPA consulted with State governments and representatives of local
governments in developing the regulation. The outreach activities are
discussed in Section XI.E (E.O. 13131 addressing Federalism) of this
preamble.
4. Alternatives Considered
In addition to the proposed rule, EPA considered and analyzed
several alternative regulatory options to determine the best technology
available for minimizing adverse environmental impact. EPA selected the
proposed rule because it meets the requirement of section 316(b) of the
CWA that the location, design, construction, and capacity of CWIS
reflect the BTA for minimizing AEI, and it is economically practicable.
[[Page 17212]]
D. Regulatory Flexibility Act as Amended by SBREFA (1996)
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
After considering the economic impacts of today's proposed rule on
small entities, the Agency certifies that this action will not have a
significant economic impact on a substantial number of small entities
for reasons explained below.
For the purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business according to
Small Business Administration (SBA) size standards; (2) a small
governmental jurisdiction that is a government of a city, county; town,
school district or special district with a population of less than
50,000; and (3) a small organization that is a not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. The SBA thresholds define minimum employment,
sales revenue, or MWh output sizes below which an entity qualifies as
small. The thresholds used in this analysis are firm-level four-digit
Standard Industrial Classification (SIC) codes.\83\ Exhibit 40 below
presents the SBA size standards used in this analysis.
---------------------------------------------------------------------------
\83\ The North American Industry Classification System (NAICS)
replaced trhe Standard Industrial Classification (SIC) System as of
October 1, 2000. The data sources EPA used to identify the parent
entities of the facilities subject to this rule did not provide
NAICS codes at the time of analysis.
Exhibit 40.--Unique Phase II Entity Small Business Size Standards (by
Standard Industry Classification Codes (SIC)) \84\
------------------------------------------------------------------------
SBA size
SIC code SIC description standard
------------------------------------------------------------------------
1311.......................... Crude Petroleum and 500 Employees
Natural Gas.
3312.......................... Steel Works, Blast 1,000 Employees.
Furnaces (Including
Coke Ovens), and
Rolling Mills.
4911.......................... Electric Services..... 4 million MWh.
4924.......................... Natural Gas 500 Employees.
Distribution.
4931.......................... Electric and Other $5.0 Million.
Services Combined.
4932.......................... Gas and Other Services $5.0 Million.
Combined.
4939.......................... Combination Utilities, $5.0 Million.
NEC.
4953.......................... Refuse Systems........ $10.0 Million.
6512.......................... Operators of $5.0 Million.
Nonresidential
Buildings.
8711.......................... Engineering Services.. $6.0 Million.
------------------------------------------------------------------------
\84\ Information Source: U.S. Small Business Administration, Office of
Size Standards, Exhibit of Size Standards (www.sba.gov/regulations/siccodes/siccodes.html)
EPA used publicly available data from the 1999 Forms EIA-860A and
EIA-860B as well as information from EPA's 2000 Section 316(b) Industry
Survey to identify the parent entities of electric generators subject
to this proposed rule. EPA also conducted research to identify recent
changes in ownership, including the current owner of each generator,
and each owner's primary SIC code, sales revenues, employment, and/or
electricity sales. Based on the parent entity's SIC code and the
related size standard set by the SBA, EPA identified facilities that
are owned by small entities.
Based on this analysis, EPA expects this proposed rule to regulate
only a small absolute number of facilities owned by small entities,
representing only 1.3 percent of all facilities owned by small entities
in the electric power industry. EPA has estimated that 28 in-scope
electric generators owned by small entities would be regulated by this
proposed rule. Of the 28 generators, 19 are projected to be owned by a
municipality, six by a rural electric cooperative, two by a municipal
marketing authority, and one by a political subdivision.
Only facilities with design intake flows of 50 MGD or more are
subject to this rule. In addition, only a small percentage of all small
entities in the electric power industry, 1.3 percent, is subject to
this rule. Finally, of the 28 small entities, two entities would incur
annualized post-tax compliance costs of greater than three percent of
revenues; nine would incur compliance costs of between one and three
percent of revenues; and the remaining 17 small entities would incur
compliance costs of less than one percent of revenues. The estimated
compliance costs that facilities owned by small entities would likely
incur represent between 0.12 and 5.29 percent of the entities' annual
sales revenue.
Exhibit 41 summarizes the results of Regulatory Flexibility Act
analysis. From the small absolute number of facilities owned by small
entities that would be affected by the proposed rule, the low
percentage of all small entities, and the very low impacts, EPA
concludes that the proposed rule will not have a significant economic
impact on a substantial number of small entities.
Exhibit 41.--Summary of RFA Analysis
----------------------------------------------------------------------------------------------------------------
(A) Number (D)
of in- (B) Number Percent of
scope of small (C) Total small (E) Annual compliance
Type of Entity facilities entities number of entities costs/annual sales
owned by with in- small in-scope of revenue
small scope entities rule [(B)/
entities facilities (C)]
----------------------------------------------------------------------------------------------------------------
Municipality....................... 19 19 1,110 1.7 0.4 to 5.3%
[[Page 17213]]
Municipal Marketing Authority...... 2 2 22 9.1 0.1 to 0.1%
Rural Electric Cooperative......... 6 6 877 0.7 0.2 to 0.5%
Political Subdivision.............. 1 1 104 1.0 1.2 to 1.2%
Other Types........................ 0 0 97 0.0 n/a
----------------------------------------------------------------------------
Total.......................... 28 28 2,210 1.3 0.1-5.3%
----------------------------------------------------------------------------------------------------------------
The Economic and Benefits Analysis for the Proposed Section 316(b)
Phase II Existing Facilities Rule presents more detail on EPA's small
entity analysis in support of this proposed rule.
E. E.O. 12898: Federal Actions To Address Environmental Justice in
Minority Populations and Low-Income Populations
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. E.O. 12898
provides that each Federal agency must conduct its programs, policies,
and activities that substantially affect human health or the
environment in a manner that ensures such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin.
Today's final rule would require that the location, design,
construction, and capacity of cooling water intake structures (CWIS) at
Phase II existing facilities reflect the best technology available for
minimizing adverse environmental impact. For several reasons, EPA does
not expect that this final rule would have an exclusionary effect, deny
persons the benefits of the participating in a program, or subject
persons to discrimination because of their race, color, or national
origin.
To assess the impact of the rule on low-income and minority
populations, EPA calculated the poverty rate and the percentage of the
population classified as non-white for populations living within a 50-
mile radius of each of the 539 in-scope facilities. The results of the
analysis, presented in the EBA, show that the populations affected by
the in-scope facilities have poverty levels and racial compositions
that are quite similar to the U.S. population as a whole. A relatively
small subset of the facilities are located near populations with
poverty rates (24 of 539, or 4.5%), or non-white populations (101 of
539, or 18.7%), or both (13 of 539, or 2.4%), that are significantly
higher than national levels. Based on these results, EPA does not
believe that this rule will have an exclusionary effect, deny persons
the benefits of the NPDES program, or subject persons to discrimination
because of their race, color, or national origin.
In fact because EPA expects that this final rule would help to
preserve the health of aquatic ecosystems located in reasonable
proximity to Phase II existing facilities, it believes that all
populations, including minority and low-income populations, would
benefit from improved environmental conditions as a result of this
rule. Under current conditions, EPA estimates approximately 2.2 billion
fish (expressed as age 1 equivalents) of recreational and commercial
species are lost annually due to impingement and entrainment at the 529
in scope Phase II existing facilities. Under the Agency's preferred
option, over 1.2 billion individuals of these commercially and
recreationally sought fish species (age 1 equivalents) will now survive
to join the fishery each year (435 million fish due to reduced
impingement impacts, and 789 million fish due to reduced entrainment).
These additional 1.2 billion fish will provide increased opportunities
for subsistence anglers to increase their catch, thereby providing some
benefit to low income households located near regulation-impacted
waters.
F. E.O. 13045: Protection of Children From Environmental Health Risks
and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe might have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health and
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This
proposed rule is an economically significant rule as defined under
Executive Order 12866. However, it does not concern an environmental
health or safety risk that would have a disproportionate effect on
children. Therefore, it is not subject to Executive Order 13045.
G. E.O. 13175: Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian Tribes, on
the relationship between the Federal government and the Indian Tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian Tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian Tribes,
[[Page 17214]]
as specified in Executive Order 13175. EPA's analyses show that no
facility subject to this proposed rule is owned by tribal governments.
This proposed rule does not affect Tribes in any way in the foreseeable
future. Accordingly, the requirements of Executive Order 13175 do not
apply to this rule.
H. E.O. 13158: Marine Protected Areas
Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to
``expeditiously propose new science-based regulations, as necessary, to
ensure appropriate levels of protection for the marine environment.''
EPA may take action to enhance or expand protection of existing marine
protected areas and to establish or recommend, as appropriate, new
marine protected areas. The purpose of the Executive Order is to
protect the significant natural and cultural resources within the
marine environment, which means ``those areas of coastal and ocean
waters, the Great Lakes and their connecting waters, and submerged
lands thereunder, over which the United States exercises jurisdiction,
consistent with international law.''
This proposed rule recognizes the biological sensitivity of tidal
rivers, estuaries, oceans, and the Great Lakes and their susceptibility
to adverse environmental impact from cooling water intake structures.
This proposal provides the most stringent requirements to minimize
adverse environmental impact for cooling water intake structures
located on these types of water bodies, including potential reduction
of intake flows to a level commensurate with that which can be attained
by a closed-cycle recirculating cooling system for facilities that
withdraw certain proportions of water from estuaries, tidal rivers, and
oceans.
EPA expects that this proposed rule will reduce impingement and
entrainment at facilities with design intake flows of 50 MGD or more.
The rule would afford protection of aquatic organisms at individual,
population, community, or ecosystem levels of ecological structures.
Therefore, EPA expects today's proposed rule would advance the
objective of the Executive Order to protect marine areas.
I. E.O. 13211: Energy Effects
Executive Order 13211 on ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' requires EPA
to prepare a Statement of Energy Effects when undertaking regulatory
actions identified as ``significant energy actions.'' For the purposes
of Executive Order 13211, ``significant energy action'' means (66 FR
28355; May 22, 2001):
any action by an agency (normally published in the Federal Register)
that promulgates or is expected to lead to the promulgation of a
final rule or regulation, including notices of inquiry, advance
notices of proposed rulemaking, and notices of proposed rulemaking:
(1)(i) That is a significant regulatory action under Executive
Order 12866 or any successor order, and
(ii) Is likely to have a significant adverse effect on the
supply, distribution, or use of energy; or
(2) That is designated by the Administrator of the Office of
Information and Regulatory Affairs as a significant energy action.
For those regulatory actions identified as ``significant energy
actions,'' a Statement of Energy Effects must include a detailed
statement relating to (1) any adverse effects on energy supply,
distribution, or use (including a shortfall in supply, price increases,
and increased use of foreign supplies), and (2) reasonable alternatives
to the action with adverse energy effects and the expected effects of
such alternatives on energy supply, distribution, and use.
This proposed rule does not qualify as a ``significant energy
action'' as defined in Executive Order 13211 because it is not likely
to have a significant adverse effect on the supply, distribution, or
use of energy. The proposed rule does not contain any compliance
requirements that would directly reduce the installed capacity or the
electricity production of U.S. electric power generators, for example
through parasitic losses or auxiliary power requirements. In addition,
based on the estimated costs of compliance, EPA currently projects that
the rule will not lead to any early capacity retirements at facilities
subject to this rule or at facilities that compete with them. As
described in detail in Section VIII, EPA estimates small effects of
this rule on installed capacity, generation, production costs, and
electricity prices. EPA's therefore concludes that this proposed rule
will have small energy effects at a national, regional, and facility-
level. As a result, EPA did not prepare a Statement of Energy Effects.
EPA recognizes that some of the alternative regulatory options
discussed in the preamble would have much larger effects and might well
quality as ``significant energy actions'' under Executive Order 13211.
If EPA decides to revise the proposed requirements for the final rule,
it will reconsider its determination under Executive Order 13211 and
prepare a Statement of Energy Effects as appropriate.
For more detail on the potential energy effects of this proposed
rule or the alternative regulatory options considered by EPA, see
Section VIII above or the Economic and Benefits Analysis for the
Proposed Section 316(b) Phase II Existing Facilities Rule.
J. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, Pub. L. 104-113, Sec. 12(d) directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standard bodies. The NTTAA directs EPA to provide Congress, through the
Office of Management and Budget (OMB), explanations when the Agency
decides not to use available and applicable voluntary consensus
standards.
This proposed rule does not involve such technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards. EPA welcomes comments on this aspect of the proposed rule
and, specifically, invites the public to identify potentially
applicable voluntary consensus standards and to explain why such
standards should be used in this proposed rule.
K. Plain Language Directive
Executive Order 12866 and the President's memorandum of June 1,
1998, require each agency to write all rules in plain language. We
invite your comments on how to make this proposed rule easier to
understand. For example: Have we organized the material to suit your
needs? Are the requirements in the rule clearly stated? Does the rule
contain technical language or jargon that is not clear? Would a
different format (grouping and order of sections, use of headings,
paragraphing) make the rule easier to understand? Would more (but
shorter) sections be better? Could we improve clarity by adding tables,
lists, or diagrams? What else could we do to make the rule easier to
understand?
L. Executive Order 13132: Federalism
Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications. Policies
[[Page 17215]]
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Rather, this proposed rule would
result in minimal administrative costs on States that have an
authorized NPDES program. EPA expects an annual burden of 146,983 hours
with an annual cost of $41,200 (non-labor costs) for States to
collectively administer this proposed rule. EPA has identified 65 Phase
II existing facilities that are owned by federal, state or local
government entities. The annual impacts on these facilities is not
expected to exceed 2,252 burden hours and $56,739 (non-labor costs) per
facility.
The proposed national cooling water intake structure requirements
would be implemented through permits issued under the NPDES program.
Forty-three States and the Virgin Islands are currently authorized
pursuant to section 402(b) of the CWA to implement the NPDES program.
In States not authorized to implement the NPDES program, EPA issues
NPDES permits. Under the CWA, States are not required to become
authorized to administer the NPDES program. Rather, such authorization
is available to States if they operate their programs in a manner
consistent with section 402(b) and applicable regulations. Generally,
these provisions require that State NPDES programs include requirements
that are as stringent as Federal program requirements. States retain
the ability to implement requirements that are broader in scope or more
stringent than Federal requirements. (See section 510 of the CWA.)
Today's proposed rule would not have substantial direct effects on
either authorized or nonauthorized States or on local governments
because it would not change how EPA and the States and local
governments interact or their respective authority or responsibilities
for implementing the NPDES program. Today's proposed rule establishes
national requirements for Phase II existing facilities with cooling
water intake structures. NPDES-authorized States that currently do not
comply with the final regulations based on today's proposal might need
to amend their regulations or statutes to ensure that their NPDES
programs are consistent with Federal section 316(b) requirements. See
40 CFR 123.62(e). For purposes of this proposed rule, the relationship
and distribution of power and responsibilities between the Federal
government and the States and local governments are established under
the CWA (e.g., sections 402(b) and 510); nothing in this proposed rule
would alter that. Thus, the requirements of section 6 of the Executive
Order do not apply to this rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA did consult with State governments and representatives of
local governments in developing the proposed rule. During the
development of the proposed section 316(b) rule for new facilities, EPA
conducted several outreach activities through which State and local
officials were informed about this proposal and they provided
information and comments to the Agency. The outreach activities were
intended to provide EPA with feedback on issues such as adverse
environmental impact, BTA, and the potential cost associated with
various regulatory alternatives.
EPA has made presentations on the section 316(b) rulemaking effort
in general at eleven professional and industry association meetings.
EPA also conducted two public meetings in June and September of 1998 to
discuss issues related to the section 316(b) rulemaking effort. In
September 1998 and April 1999, EPA staff participated in technical
workshops sponsored by the Electric Power Research Institute on issues
relating to the definition and assessment of adverse environmental
impact. EPA staff have participated in other industry conferences, met
upon request on numerous occasions with industry representatives, and
met on a number of occasions with representatives of environmental
groups.
In the months leading up to publication of the proposed Phase I
rule, EPA conducted a series of stakeholder meetings to review the
draft regulatory framework for the proposed rule and invited
stakeholders to provide their recommendations for the Agency's
consideration. EPA managers have met with the Utility Water Act Group,
Edison Electric Institute, representatives from an individual utility,
and with representatives from the petroleum refining, pulp and paper,
and iron and steel industries. EPA conducted meetings with
environmental groups attended by representatives from between 3 and 15
organizations. EPA also met with the Association of State and
Interstate Water Pollution Control Administrators (ASIWPCA) and, with
the assistance of ASIWPCA, conducted a conference call in which
representatives from 17 states or interstate organizations
participated. EPA also met with OMB and utility representatives and
other federal agencies (the Department of Energy, the Small Business
Administration, the Tennessee Valley Authority, the National Oceanic
and Atmospheric Administration's National Marine Fisheries Service and
the Department of Interior's U.S. Fish and Wildlife Service). After
publication of the proposed Phase I rule, EPA continued to meet with
stakeholders at their request.
EPA received more than 2000 comments on the Phase I proposed rule
and NODA. In some cases these comments have informed the development of
the Phase II rule proposal.
In January, 2001, EPA also attended technical workshops organized
by the Electric Power Research Institute and the Utilities Water Action
Group. These workshops focused on the presentation of key issues
associated with different regulatory approaches considered under the
Phase I proposed rule and alternatives for addressing 316(b)
requirements.
On May 23, 2001, EPA held a day-long forum to discuss specific
issues associated with the development of regulations under section
316(b). At the meeting, 17 experts from industry, public interest
groups, States, and academia reviewed and discussed the Agency's
preliminary data on cooling water intake structure technologies that
are in place at existing facilities and the costs associated with the
use of available technologies for reducing impingement and entrainment.
Over 120 people attended the meeting.
[[Page 17216]]
Finally, in August 21, 2001, EPA staff participated in a technical
symposium sponsored by the Electric Power Research Institute in
association with the American Fisheries Society on issues relating to
the definition and assessment of adverse environmental impact for
section 316(b) of the CWA.
In the spirit of this Executive Order and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
BILLING CODE 6560-50-P
[[Page 17217]]
[GRAPHIC] [TIFF OMITTED] TP09AP02.000
BILLING CODE 6560-50-C
[[Page 17218]]
List of Subjects
40 CFR Part 9
Reporting and recordkeeping requirements.
40 CFR Part 122
Administrative practice and procedure, Confidential business
information, Hazardous substances, Reporting and recordkeeping
requirements, Water pollution control.
40 CFR Part 123
Administrative practice and procedure, Confidential business
information, Hazardous substances, Indian-lands, Intergovernmental
relations, Penalties, Reporting and recordkeeping requirements, Water
pollution control.
40 CFR Part 124
Administrative practice and procedure, Air pollution control,
Hazardous waste, Indians-lands, Reporting and recordkeeping
requirements, Water pollution control, Water supply.
40 CFR Part 125
Cooling Water Intake Structure, Reporting and recordkeeping
requirements, Waste treatment and disposal, Water pollution control.
Dated: February 28, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set forth in the preamble, chapter I of title 40 of
the Code of Federal Regulations is amended as follows:
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671, 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330,
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g,
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2,
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542,
9601-9657, 11023, 11048.
2. In Sec. 9.1 the table is amended by revising the entry for
``122.21(r)'' and by adding entries in numerical order under the
indicated heading to read as follows:
Sec. 9.1 OMB approvals under the Paper Work Reduction Act.
* * * * *
------------------------------------------------------------------------
40 CFR citation OMB control No.
------------------------------------------------------------------------
* * * *
* * *
------------------------------------------------------------------------
EPA Administered Permit Programs: The National Pollutant Discharge
Elimination System
------------------------------------------------------------------------
* * * *
* * *
122.21(r)...................... 2040-0241, xxxxx-xxxxx
* * * *
* * *
------------------------------------------------------------------------
Criteria and Standards for the National Pollutant Discharge Elimination
System
------------------------------------------------------------------------
* * * *
* * *
125.95......................... xxxx-xxxx
125.96......................... xxxx-xxxx
125.97......................... xxxx-xxxx
125.98......................... xxxx-xxxx
* * * *
* * *
------------------------------------------------------------------------
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 122 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Section Sec. 122.21 by revising paragraph (r) to read as
follows:
Sec. 122.21 Application for a permit (applicable to State programs,
see Sec. 123.25)
* * * * *
(r) Applications for facilities with cooling water intake
structures--(1)(i) New facilities with new or modified cooling water
intake structures. New facilities with cooling water intake structures
as defined in part 125, subpart I of this chapter must report the
information required under paragraphs (r)(2), (3), and (4) of this
section and Sec. 125.86 of this chapter. Requests for alternative
requirements under Sec. 125.85 of this chapter must be submitted with
your permit application.
(ii) Phase II existing facilities. Phase II existing facilities as
defined in part 125, subpart J of this chapter must report the
information required under paragraphs (r)(2), (3), and (5) of this
section and Sec. 125.95 of this chapter. Requests for site-specific
determination of best technology available for minimizing adverse
environmental impact under Sec. 125.94(c) of this chapter must be
submitted with your permit application.
(2) Source Water Physical Data including:
(i) A narrative description and scaled drawings showing the
physical configuration of all source water bodies used by your
facility, including areal dimensions, depths, salinity and temperature
regimes, and other documentation that supports your determination of
the water body type where each cooling water intake structure is
located;
(ii) Identification and characterization of the source waterbody's
hydrological and geomorphological features, as well as the methods you
used to conduct any physical studies to determine your intake's area of
influence within the waterbody and the results of such studies; and
[[Page 17219]]
(iii) Locational maps.
(3) Cooling Water Intake Structure Data including:
(i) A narrative description of the configuration of each of your
cooling water intake structures and where it is located in the water
body and in the water column;
(ii) Latitude and longitude in degrees, minutes, and seconds for
each of your cooling water intake structures;
(iii) A narrative description of the operation of each of your
cooling water intake structures, including design intake flows, daily
hours of operation, number of days of the year in operation and
seasonal changes, if applicable;
(iv) A flow distribution and water balance diagram that includes
all sources of water to the facility, recirculating flows, and
discharges; and
(v) Engineering drawings of the cooling water intake structure.
(4) Source Water Baseline Biological Characterization Data. This
information is required to characterize the biological community in the
vicinity of the cooling water intake structure and to characterize the
operation of the cooling water intake structures. The Director may also
use this information in subsequent permit renewal proceedings to
determine if your Design and Construction Technology Plan as required
in Sec. 125.86(b)(4) should be revised. This supporting information
must include existing data (if they are available). However, you may
supplement the data using newly conducted field studies if you choose
to do so. The information you submit must include:
(i) A list of the data in paragraphs (r)(4)(ii) through (vi) of
this section that are not available and efforts made to identify
sources of the data;
(ii) A list of species (or relevant taxa) for all life stages and
their relative abundance in the vicinity of the cooling water intake
structure;
(iii) Identification of the species and life stages that would be
most susceptible to impingement and entrainment. Species evaluated
should include the forage base as well as those most important in terms
of significance to commercial and recreational fisheries;
(iv) Identification and evaluation of the primary period of
reproduction, larval recruitment, and period of peak abundance for
relevant taxa;
(v) Data representative of the seasonal and daily activities (e.g.,
feeding and water column migration) of biological organisms in the
vicinity of the cooling water intake structure;
(vi) Identification of all threatened, endangered, and other
protected species that might be susceptible to impingement and
entrainment at your cooling water intake structures;
(vii) Documentation of any public participation or consultation
with Federal or State agencies undertaken in development of the plan;
and
(viii) If you supplement the information requested in paragraph
(r)(4)(i) of this section with data collected using field studies,
supporting documentation for the Source Water Baseline Biological
Characterization must include a description of all methods and quality
assurance procedures for sampling, and data analysis including a
description of the study area; taxonomic identification of sampled and
evaluated biological assemblages (including all life stages of fish and
shellfish); and sampling and data analysis methods.
The sampling and/or data analysis methods you use must be
appropriate for a quantitative survey and based on consideration of
methods used in other biological studies performed within the same
source water body. The study area should include, at a minimum, the
area of influence of the cooling water intake structure.
(5) Phase II Existing Facility Cooling Water System Data. Phase II
existing facilities, as defined in part 125, subpart J of this chapter,
must provide the following information:
(i) A narrative description of the operation of each of your
cooling water systems, relationship to cooling water intake structures,
proportion of the design intake flow that is used in the system, number
of days of the year in operation and seasonal changes, if applicable;
(ii) Engineering calculations and supporting data to support the
description required by paragraph (r)(5)(i) of this section.
3. Section 122.44 is amended by revising paragraph (b)(3) to read
as follows:
Sec. 122.44 Establishing limitations, standards, and other permit
conditions (applicable to State NPDES programs, see Sec. 123.25).
* * * * *
(b) * * *
(3) Requirements applicable to cooling water intake structures
under section 316(b) of the CWA, in accordance with part 125, subparts
I and J of this chapter.
* * * * *
PART 123--STATE PROGRAM REQUIREMENTS
1. The authority citation for part 123 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Section 123.25 is amended by revising paragraph (a)(4) (a) and
(36) to read as follows:
Sec. 123.25 Requirements for permitting.
(a) * * *
(4) Sec. 122.21 (a) (b), (c)(2), (e) (k), (m) (p), and (r)--
(Application for a permit);
* * * * *
(36) Subparts A, B, D, H, I, and J of part 125 of this chapter;
* * * * *
PART 124--PROCEDURES FOR DECISIONMAKING
1. The authority citation for part 124 continues to read as
follows:
Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et.seq; Clean
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et
seq.
2. Section 124.10 is amended by revising paragraph (d)(1)(ix) to
read as follows:
Sec. 124.10 Public notice of permit actions and public comment period.
* * * * *
(d) * * *
(1) * * *
(ix) Requirements applicable to cooling water intake structures
under section 316(b) of the CWA, in accordance with part 125, subparts
I and J of this chapter.
* * * * *
PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 125 continues to read as
follows:
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.; unless
otherwise noted.
2. Section 125.83 is amended by revising the definition of cooling
water as follows:
Sec. 125.83 What special definitions apply to this subpart?
* * * * *
Cooling water means water used for contact or noncontact cooling,
including water used for equipment cooling, evaporative cooling tower
makeup, and dilution of effluent heat content. The intended use of the
cooling water is to absorb waste heat rejected from the process or
processes used, or from auxiliary operations on the facility's
premises. Cooling water that is used in a manufacturing process either
before or
[[Page 17220]]
after it is used for cooling is considered process water for the
purposes of calculating the percentage of a new facility's intake flow
that is used for cooling purposes in Secs. 125.81(c) and 125.91(c).
* * * * *
3. Add subpart J to part 125 to read as follows:
Subpart J--Requirements Applicable to Cooling Water Intake Structures
for ``Phase II Existing Facilities'' Under Section 316(b) of the Act
Sec.
125.90 What are the purpose and scope of this subpart?
125.91 What is a Phase II existing facility subject to this
subpart?
125.92 When must I comply with this subpart?
125.93 What special definitions apply to this subpart?
125.94 How will requirements reflecting best technology available
for minimizing adverse environmental impact be established for my
Phase II existing facility?
125.95 As an owner or operator of a Phase II existing facility,
what must I collect and submit when I apply for my reissued NPDES
permit?
125.96 As an owner or operator of a Phase II existing facility,
what monitoring must I perform?
125.97 As an owner or operator of a Phase II existing facility,
what records must I keep and what information must I report?
125.98 As the Director, what must I do to comply with the
requirements of this subpart?
Subpart J--Requirements Applicable to Cooling Water Intake
Structures for ``Phase II Existing Facilities'' Under Section
316(b) of the Act
Sec. 125.90 What are the purpose and scope of this subpart?
(a) This subpart establishes requirements that apply to the
location, design, construction, and capacity of cooling water intake
structures at existing facilities that are subject to this subpart
(Phase II existing facilities). The purpose of these requirements is to
establish the best technology available for minimizing adverse
environmental impact associated with the use of cooling water intake
structures. These requirements are implemented through National
Pollutant Discharge Elimination System (NPDES) permits issued under
section 402 of the Clean Water Act (CWA).
(b) This subpart implements section 316(b) of the CWA for Phase II
existing facilities. Section 316(b) of the CWA provides that any
standard established pursuant to sections 301 or 306 of the CWA and
applicable to a point source shall require that the location, design,
construction, and capacity of cooling water intake structures reflect
the best technology available for minimizing adverse environmental
impact.
(c) Existing facilities that are not subject to this subpart must
meet requirements under section 316(b) of the CWA determined by the
Director on a case-by-case, best professional judgment (BPJ) basis.
(d) Notwithstanding any other provision of this subpart, if a State
demonstrates to the Administrator that it has adopted alternative
regulatory requirements that will result in environmental performance
within a watershed that is comparable to the reductions of impingement
mortality and entrainment that would otherwise be achieved under
Sec. 125.94, the Administrator shall approve such alternative
regulatory requirements.
(e) Nothing in this subpart shall be construed to preclude or deny
the right of any State or political subdivision of a State or any
interstate agency under section 510 of the CWA to adopt or enforce any
requirement with respect to control or abatement of pollution that is
not less stringent than those required by Federal law.
Sec. 125.91 What is a ``Phase II Existing Facility'' subject to this
subpart?
(a) This subpart applies to an existing facility, as defined in
Sec. 125.93, if it:
(1) Is a point source that uses or proposes to use a cooling water
intake structure;
(2) Both generates and transmits electric power, or generates
electric power but sells it to another entity for transmission;
(3) Has at least one cooling water intake structure that uses at
least 25 percent of the water it withdraws for cooling purposes as
specified in paragraph (c) of this section; and
(4) Has a design intake flow of 50 million gallons per day (MGD) or
more. Facilities that meet these criteria are referred to as ``Phase II
existing facilities.''
(b) In the case of a cogeneration facility that shares a cooling
water intake structure with another existing facility, only that
portion of the cooling water intake flow that is used in the
cogeneration process shall be considered for purposes of determining
whether the 50 MGD and 25 percent criteria in paragraphs (a)(3) and (4)
of this section are met.
(c) Use of a cooling water intake structure includes obtaining
cooling water by any sort of contract or arrangement with an
independent supplier (or multiple suppliers) of cooling water if the
supplier or suppliers withdraw(s) water from waters of the United
States. Use of cooling water does not include obtaining cooling water
from a public water system or use of treated effluent that otherwise
would be discharged to a water of the U.S. This provision is intended
to prevent circumvention of these requirements by creating arrangements
to receive cooling water from an entity that is not itself a point
source.
(d) Whether or not 25 percent of water withdrawn is used for
cooling purposes must be measured on an average monthly basis. The 25
percent threshold is met if any monthly average of cooling water over
any 12 month period is 25 percent or more of the total water withdrawn.
Sec. 125.92 When must I comply with this subpart?
You must comply with this subpart when an NPDES permit containing
requirements consistent with this subpart is issued to you.
Sec. 125.93 What special definitions apply to this subpart?
The definitions in Subpart I of Part 125, except the definitions of
cooling water and existing facility, apply to this subpart. The
following definitions also apply to this subpart:
Administrator means the same as defined in 40 CFR 122.2.
All life stages means eggs, larvae, juveniles, and adults.
Calculation baseline means an estimate of impingement mortality and
entrainment that would occur at your site assuming you had a shoreline
cooling water intake structure with an intake capacity commensurate
with a once-through cooling water system and with no impingement and/or
entrainment reduction controls.
Capacity utilization rate means the ratio between the average
annual net generation of the facility (in MWh) and the total net
capability of the facility (in MW) multiplied by the number of
available hours during a year. The average annual generation must be
measured over a five year period (if available) of representative
operating conditions.
Cogeneration facility means a facility that operates equipment used
to produce, from the same fuel source: electric energy used for
industrial, commercial, and/or institutional purposes at one or more
host facilities and/or for sale to another entity for transmission; and
forms of useful thermal energy (such as heat or steam), used for
industrial commercial,
[[Page 17221]]
institutional, heating, and/or cooling purposes at one or more host
facilities.
Cooling water means water used for contact or noncontact cooling,
including water used for equipment cooling, evaporative cooling tower
makeup, and dilution of effluent heat content. The intended use of the
cooling water is to absorb waste heat rejected from the process or
processes used, or from auxiliary operations on the facility's
premises. Cooling water that is used in a manufacturing process either
before or after it is used for cooling is considered process water for
the purposes of calculating the percentage of a facility's intake flow
that is used for cooling purposes in Sec. 125.91(c).
Diel means sample variation in organismal abundance and density
over a 24-hour period due to the influence of water movement and
changes in light intensity.
Director means the same as defined in 40 CFR 122.2.
Existing facility means any facility that commenced construction
before January 17, 2002; and
(1) Any modification of such a facility;
(2) Any addition of a unit at such a facility for purposes of the
same industrial operation;
(3) Any addition of a unit at such a facility for purposes of a
different industrial operation, if the additional unit uses an existing
cooling water intake structure and the design capacity of the intake
structure is not increased; or
(4) Any facility constructed in place of such a facility, if the
newly constructed facility uses an existing cooling water intake
structure whose design intake flow is not increased to accommodate the
intake of additional cooling water.
Once-through cooling water system means a system designed to
withdraw water from a natural or other water source, use it at the
facility to support contact and/or noncontact cooling uses, and then
discharge it to a water body without recirculation. Once-through
cooling systems sometimes employ canals/channels, ponds, or non-
recirculating cooling towers to dissipate waste heat from the water
before it is discharged.
Phase II existing facility means any existing facility that meets
the criteria specified in Sec. 125.91.
Sec. 125.94 How will requirements reflecting best technology available
for minimizing adverse environmental impact be established for my Phase
II existing facility?
(a) You may choose one of the following three alternatives for
establishing best technology available for minimizing adverse
environmental impact at your site:
(1) You may demonstrate to the Director that your existing design
and construction technologies, operational measures, and/or restoration
measures meet the performance standards specified in paragraph (b) of
this section;
(2) You may demonstrate to the Director that you have selected
design and construction technologies, operational measures, and/or
restoration measures that will, in combination with any existing design
and construction technologies, operational measures, and/or restoration
measures, meet the performance standards specified in paragraph (b) of
this section; or
(3) You may demonstrate to the Director that a site-specific
determination of best technology available for minimizing adverse
environmental impact is appropriate for your site in accordance with
paragraph (c) of this section.
(b) Performance Standards. If you choose the alternative in
paragraphs (a)(1) or (a)(2) of this section, you must meet the
following performance standards:
(1) You must reduce your intake capacity to a level commensurate
with the use of a closed-cycle, recirculating cooling system; or
(2) You must reduce impingement mortality of all life stages of
fish and shellfish by
80 to 95 percent from the calculation baseline if your facility has a
capacity utilization rate less than 15 percent, or your facility's
design intake flow is 5 percent or less of the mean annual flow from a
freshwater river or stream; or
(3) You must reduce impingement mortality of all life stages of
fish and shellfish by
80 to 95 percent from the calculation baseline, and you must reduce
entrainment of all life stages of fish and shellfish by 60 to 90
percent from the calculation baseline if your facility has a capacity
utilization rate of 15 percent or greater and withdraws cooling water
from a tidal river or estuary, from an ocean, from one of the Great
Lakes, or your facility's design intake flow is greater than 5 percent
of the mean annual flow of a freshwater river or stream; or
(4) If your facility withdraws cooling water from a lake (other
than one of the Great Lakes) or reservoir:
(i) You must reduce impingement mortality of all life stages of
fish and shellfish by
80 to 95 percent from the calculation baseline; and
(ii) If you propose to increase your facility's design intake flow,
your increased flow must not disrupt the natural thermal stratification
or turnover pattern (where present) of the source water, except in
cases where the disruption is determined by any Federal, State or
Tribal fish or wildlife management agency(ies) to be beneficial to the
management of fisheries.
(c)(1) Site-Specific Determination of Best Technology Available. If
you choose the alternative in paragraph (a)(3) of this section, you
must demonstrate to the Director that your costs of compliance with the
applicable performance standards in paragraph (b) of this section would
be significantly greater than the costs considered by the Administrator
when establishing such performance standards, or that your costs would
be significantly greater than the benefits of complying with such
performance standards at your site.
(2) If data specific to your facility indicate that your costs
would be significantly greater than those considered by the
Administrator in establishing the applicable performance standards, the
Director shall make a site-specific determination of best technology
available for minimizing adverse environmental impact that is based on
less costly design and construction technologies, operational measures,
and/or restoration measures to the extent justified by the
significantly greater cost. The Director's site-specific determination
may conclude that design and construction technologies, operational
measures, and/or restoration measures in addition to those already in
place are not justified because of significantly greater costs.
(3) If data specific to your facility indicate that your costs
would be significantly greater than the benefits of complying with such
performance standards at your facility, the Director shall make a site-
specific determination of best technology available for minimizing
adverse environmental impact that is based on less costly design and
construction technologies, operational measures, and/or restoration
measures to the extent justified by the significantly greater costs.
The Director's site-specific determination may conclude that design and
construction technologies, operational measures, and/or restoration
measures in addition to those already in place are not justified
because the costs would be significantly greater than the benefits at
your facility.
(d) Restoration Measures. In lieu of, or in combination with,
reducing impingement mortality and entrainment
[[Page 17222]]
by implementing design and construction technologies or operational
measures to comply with the performance standards specified in
paragraph (b) of this section or the Director's determination pursuant
to paragraph (c) of this section, you may, with the Director's
approval, employ restoration measures that will result in increases in
fish and shellfish in the watershed. You must demonstrate to the
Director that you are maintaining the fish and shellfish within the
waterbody, including community structure and function, to a level
comparable to those that would result if you were to employ design and
construction technologies or operational measures to meet that portion
of the requirements of paragraphs (b) or (c) of this section that you
are meeting through restoration. Your demonstration must address
species that the Director, in consultation with Federal, State, and
Tribal fish and wildlife management agencies with responsibility for
fisheries and wildlife potentially affected by your cooling water
intake structure, identifies as species of concern.
(e) More Stringent Standards. The Director may establish more
stringent requirements as best technology available for minimizing
adverse environmental impact if the Director determines that your
compliance with the applicable requirements of paragraphs (b) and (c)
of this section would not meet the requirements of other applicable
Federal, State, or Tribal law.
(f) If the Nuclear Regulatory Commission has determined that your
compliance with this subpart would result in a conflict with a safety
requirement established by the Commission, the Director shall make a
site-specific determination of best technology available for minimizing
adverse environmental impact that is less stringent than the
requirements of this subpart to the extent necessary for you to comply
with the Commission's safety requirement.
(g) You must submit the application information required in
Sec. 125.95, implement the monitoring requirements specified in
Sec. 125.96, and implement the record-keeping requirements specified at
Sec. 125.97.
Sec. 125.95 As an owner or operator of a Phase II existing facility,
what must I collect and submit when I apply for my reissued NPDES
permit?
(a) You must submit to the Director the application information
required by 40 CFR 122.21(r)(2), (3) and (5) and the Comprehensive
Demonstration required by paragraph (b) of this section at least 180
days before your existing permit expires, in accordance with
Sec. 122.21(d)(2).
(b) Comprehensive Demonstration Study. All facilities except those
deemed to have met the performance standards in accordance with
Sec. 125.94(b)(1), must submit a Comprehensive Demonstration Study
(Study). This information is required to characterize impingement
mortality and entrainment, the operation of your cooling water intake
structures, and to confirm that the technology(ies), operational
measures, and/or restoration measures you have selected and/or
implemented at your cooling water intake structure meet the applicable
requirements of Sec. 125.94. The Comprehensive Demonstration Study must
include:
(1) Proposal For Information Collection. You must submit to the
Director for review and approval a description of the information you
will use to support your Study. The proposal must include:
(i) A description of the proposed and/or implemented
technology(ies), operational measures, and/or restoration measures to
be evaluated in the Study;
(ii) A list and description of any historical studies
characterizing impingement and entrainment and/or the physical and
biological conditions in the vicinity of the cooling water intake
structures and their relevance to this proposed Study. If you propose
to use existing data, you must demonstrate the extent to which the data
are representative of current conditions and that the data were
collected using appropriate quality assurance/quality control
procedures;
(iii) A summary of any past, ongoing, or voluntary consultation
with appropriate Federal, State, and Tribal fish and wildlife agencies
that is relevant to this Study and a copy of written comments received
as a result of such consultation; and
(iv) A sampling plan for any new field studies you propose to
conduct in order to ensure that you have sufficient data to develop a
scientifically valid estimate of impingement and entrainment at your
site. The sampling plan must document all methods and quality
assurance/quality control procedures for sampling and data analysis.
The sampling and data analysis methods you propose must be appropriate
for a quantitative survey and include consideration of the methods used
in other studies performed in the source waterbody. The sampling plan
must include a description of the study area (including the area of
influence of the cooling water intake structure), and provide a
taxonomic identification of the sampled or evaluated biological
assemblages (including all life stages of fish and shellfish).
(2) Source Waterbody Flow Information. You must submit to the
Director the following source waterbody flow information:
(i) If your cooling water intake structure is located in a
freshwater river or stream, you must provide the annual mean flow of
the waterbody and any supporting documentation and engineering
calculations to support your analysis of which requirements specified
in Sec. 125.94(b)(2) or (3) would apply to your facility based on its
water intake flow in proportion to the mean annual flow of the river or
steam; and
(ii) If your cooling water intake structure is located in a lake
(other than one of the Great Lakes) or reservoir and you propose to
increase your facility's design intake flow, you must provide a
narrative description of the thermal stratification in the water body,
and any supporting documentation and engineering calculations to show
that the natural thermal stratification and turnover pattern will not
be disrupted by the increased flow in a way that adversely impacts
water quality or fisheries.
(3) Impingement Mortality and Entrainment Characterization Study.
You must submit to the Director an Impingement Mortality and
Entrainment Characterization Study whose purpose is to provide
information to support the development of a calculation baseline for
evaluating impingement mortality and entrainment and to characterize
current impingement mortality and entrainment. The Impingement
Mortality and Entrainment Characterization Study must include:
(i) Taxonomic identifications of those species of fish and
shellfish and their life stages that are in the vicinity of the cooling
water intake structure and are most susceptible to impingement and
entrainment;
(ii) A characterization of those species of fish and shellfish and
life stages pursuant to paragraph (b)(3)(i) of this section, including
a description of the abundance and temporal/spatial characteristics in
the vicinity of the cooling water intake structure, based on the
collection of a sufficient number of years of data to characterize
annual, seasonal, and diel variations in impingement mortality and
entrainment (e.g., related to climate/weather differences, spawning,
feeding and water column migration);
(iii) Documentation of the current impingement mortality and
entrainment of all life stages of fish and shellfish at
[[Page 17223]]
your facility and an estimate of impingement mortality and entrainment
under the calculation baseline. The documentation may include
historical data that are representative of the current operation of
your facility and of biological conditions at the site. Impingement
mortality and entrainment samples to support the calculations required
in paragraph (b)(4)(iii) and (b)(5)(ii) of this section must be
collected during periods of representative operational flows for the
cooling water intake structure and the flows associated with the
samples must be documented;
(iv) An identification of species that are protected under Federal,
State, or Tribal law (including threatened or endangered species) that
might be susceptible to impingement and entrainment by the cooling
water intake structure(s).
(4) Design and Construction Technology Plan. If you choose to use
design and construction technologies or operational measures in whole
or in part to meet the requirements of Sec. 125.94, you must submit a
Design and Construction Technology Plan to the Director for review and
approval. In the plan you must provide the capacity utilization rate
for your facility and provide supporting data ( including the average
annual net generation of the facility (in Mwh) measured over a five
year period (if available) of representative operating conditions and
the total net capacity of the facility (in MW)) and calculations. The
plan must explain the technologies and operational measures you have in
place or have selected to meet the requirements in Sec. 125.94.
(Examples of potentially appropriate technologies may include, but are
not limited to, wedgewire screens, fine mesh screens, fish handling and
return systems, barrier nets, aquatic filter barrier systems, and
enlargement of the cooling water intake structure opening to reduce
velocity. Examples of potentially appropriate operational measures may
include, but are not limited to, seasonal shutdowns or reductions in
flow, and continuous operations of screens.) The plan must contain the
following information:
(i) A narrative description of the design and operation of all
design and construction technologies or operational measures (existing
and proposed), including fish handling and return systems, that you
have in place or will use to meet the requirements to reduce
impingement mortality of those species expected to be most susceptible
to impingement, and information that demonstrates the efficacy of the
technology for those species;
(ii) A narrative description of the design and operation of all
design and construction technologies or operational measures (existing
and proposed) that you have in place or will use to meet the
requirements to reduce entrainment of those species expected to be the
most susceptible to entrainment, if applicable, and information that
demonstrates the efficacy of the technology for those species;
(iii) Calculations of the reduction in impingement mortality and
entrainment of all life stages of fish and shellfish that would be
achieved by the technologies and operational measures you have selected
based on the Impingement Mortality and Entrainment Characterization
Study in paragraph (b)(3) of this section. In determining compliance
with any requirements to reduce impingement mortality or entrainment,
you must assess the total reduction in impingement mortality and
entrainment against the calculations baseline determined in paragraph
(b)(3) of this section. Reductions in impingement mortality and
entrainment from this calculation baseline as a result of any design
and construction technologies and operational measures already
implemented at your facility should be added to the reductions expected
to be achieved by any additional design and construction technologies
and operational measures that will be implemented, and any increases in
fish and shellfish within the waterbody attributable to your
restoration measures. Facilities that recirculate a portion of their
flow may take into account the reduction in impingement mortality and
entrainment associated with the reduction in flow when determining the
net reduction associated with existing technology and operational
measures. This estimate must include a site-specific evaluation of the
suitability of the technology(ies) based on the species that are found
at the site, and/or operational measures and may be determined based on
representative studies (i.e., studies that have been conducted at
cooling water intake structures located in the same waterbody type with
similar biological characteristics) and/or site-specific technology
prototype studies;
(iv) Documentation which demonstrates that the location, design,
construction, and capacity of the cooling water intake structure
technologies you have selected reflect best technology available for
meeting the applicable requirements in Sec. 125.94;
(v) Design calculations, drawings, and estimates to support the
descriptions required by paragraphs (b)(4)(ii) and (iii) of this
section.
(5) Information to Support Proposed Restoration Measures. If you
propose to use restoration measures to meet the performance standards
in Sec. 125.94, you must submit the following information with your
application for review and approval by the Director:
(i) A list and narrative description of the restoration measures
you have selected and propose to implement;
(ii) A quantification of the combined benefits from implementing
design and construction technologies, operational measures and/or
restoration measures and the proportion of the benefits that can be
attributed to each. This quantification must include: the percent
reduction in impingement mortality and entrainment that would be
achieved through the use of any design and construction technologies or
operational measures that you have selected (i.e., the benefits you
would achieve through impingement and entrainment reduction); a
demonstration of the benefits that could be attributed to the
restoration measures you have selected; and a demonstration that the
combined benefits of the design and construction technology(ies),
operational measures, and/or restoration measures will maintain fish
and shellfish at a level comparable to that which would be achieved
under Sec. 125.94. If it is not possible to demonstrate quantitatively
that restoration measures such as creation of new habitats to serve as
spawning or nursery areas or establishment of riparian buffers will
achieve comparable performance, you may make a qualitative
demonstration that such measures will maintain fish and shellfish in
the waterbody at a level substantially similar to that which would be
achieved under Sec. 125.94;
(iii) A plan for implementing and maintaining the efficacy of the
restoration measures you have selected and supporting documentation to
show that the restoration measures, or the restoration measures in
combination with design and construction technology(ies) and
operational measures, will maintain the fish and shellfish in the
waterbody, including the community structure and function, to a level
comparable or substantially similar to that which would be achieved
through Sec. 125.94(b) or (c);
(iv) A summary of any past, ongoing, or voluntary consultation with
appropriate Federal, State, and Tribal fish and wildlife agencies
regarding the proposed restoration measures that is relevant to this
Study and a copy of any written comments received as a result of such
consultation; and
[[Page 17224]]
(v) Design and engineering calculations, drawings, and maps
documenting that your proposed restoration measures will meet the
restoration performance standard at Sec. 125.94(d).
(6) Information to Support Site-specific Determination of Best
Technology Available for Minimizing Adverse Environmental Impact. If
you have chosen to request a site-specific determination of best
technology available for minimizing adverse environmental impact
pursuant to Sec. 125.94(c) because of costs significantly greater than
those EPA considered in establishing the requirements at issue, or
because costs are significantly greater than the benefits of complying
with the otherwise applicable requirements of Sec. 125.94(b) and (e) at
your site, you must provide the following additional information with
your application for review by the Director:
(i) Comprehensive Cost Evaluation Study. You must perform and
submit the results of a Comprehensive Cost Evaluation Study. This
information is required to document the costs of implementing your
Design and Construction Plan under Sec. 125.95(b)(4) above and the
costs of the alternative technologies and operational measures you
propose to implement at your site. You must submit detailed engineering
cost estimates to document the costs of implementing the technologies
or operational measures in your Design and Construction Plan.
(ii) Valuation of the Monetized Benefits of Reducing Impingement
and Entrainment. If you are seeking a site-specific determination of
best technology available for minimizing adverse environmental impact
because of costs significantly greater than the benefits of complying
with the otherwise applicable requirements of Sec. 125.94(b) and (e) at
your site, you must use a comprehensive methodology to fully value the
impacts of impingement mortality and entrainment at your site and the
benefits achievable by compliance with the applicable requirements of
Sec. 125.94. The benefit study must include a description of the
methodology used, the basis for any assumptions and quantitative
estimates, and an analysis of the effects of significant sources of
uncertainty on the results of the study.
(iii) Site-Specific Technology Plan. Based on the results of the
Comprehensive Cost Evaluation Study and the valuation of the monetized
benefits of reducing impingement and entrainment required by paragraphs
(b)(7))(i) and (ii) of this section, you must submit a Site-Specific
Technology Plan to the Director for review and approval. The plan must
contain the following information:
(A) A narrative description of the design and operation of all
design and construction technologies and operational measures, and
restoration measures (existing and proposed) that you have selected in
accordance with Sec. 125.94(d), and information that demonstrates the
efficacy of the technology for those species;
(B) An engineering estimate of the efficacy of the proposed and/or
implemented technologies or operational measures for reducing
impingement mortality and entrainment of all life stages of fish and
shellfish. This estimate must include a site-specific evaluation of the
suitability of the technologies or operational measures for reducing
impingement mortality and entrainment based on representative studies
(e.g., studies that have been conducted at cooling water intake
structures located in the same waterbody type with similar biological
characteristics) and/or site-specific technology prototype studies;
(C) Documentation which demonstrates that the technologies,
operational measures, or restoration measures selected would reduce
impingement mortality and entrainment to the extent necessary to
satisfy the requirements of Sec. 125.94; and
(D) Design calculations, drawings, and estimates to support the
descriptions required by paragraphs (b)(6)(iii)(A) and (B) of this
section.
(7) Verification Monitoring Plan. You must include in the Study a
plan to conduct, at a minimum, two years of monitoring to verify the
full-scale performance of the proposed or implemented technologies,
operational measures, or restoration measures. The verification study
must begin once the technologies, operational measures, and restoration
measures are implemented and continue for a period of time that is
sufficient to demonstrate that the facility is reducing the level of
impingement and entrainment to the levels documented pursuant to
paragraphs (b)(4)(iii), (b)(5)(ii), and/or (b)(6)(iii)(B) of this
section. The plan must describe the frequency of monitoring and the
parameters to be monitored and the basis for determining the parameters
and the frequency and duration for monitoring. The plan must also
describe the information to be included in a yearly status report to
the Director. The Director will use the verification monitoring to
confirm that you are meeting the applicable requirements of
Sec. 125.94.
Sec. 125.96 As an owner or operator of a Phase II existing facility,
what monitoring must I perform?
As an owner or operator of a Phase II existing facility, you must
perform monitoring as specified by the Director to demonstrate
compliance with the applicable requirements of Sec. 125.94.
Sec. 125.97 As an owner or operator of a Phase II existing facility,
what records must I keep and what information must I report?
As an owner or operator of a Phase II existing facility you are
required to keep records and report information and data to the
Director as follows:
(a) You must keep records of all the data used to complete the
permit application and show compliance with the requirements of
Sec. 125.94, any supplemental information developed under Sec. 125.95,
and any compliance monitoring data conducted under Sec. 125.96, for a
period of at least three (3) years. The Director may require that these
records be kept for a longer period.
(b) You must provide annually to the Director a status report that
includes appropriate monitoring data as specified by the Director.
Sec. 125.98 As the Director, what must I do to comply with the
requirements of this subpart?
(a) Permit Application. As the Director, you must review materials
submitted by the applicant under 40 CFR 122.21(r) and Sec. 125.95
before each permit renewal or reissuance.
(1) After receiving the permit application from the owner or
operator of a Phase II existing facility, the Director must determine
which of the standards specified in Sec. 125.94 to apply to the
facility. In addition, the Director must review materials to determine
compliance with the applicable standards.
(2) At each permit renewal, the Director must review the
application materials and monitoring data to determine whether
requirements, or additional requirements, for design and construction
technologies or operational measures should be included in the permit.
(b) Permitting Requirements. Section 316(b) requirements are
implemented for a facility through an NPDES permit. As the Director,
you must consider the information submitted by the Phase II existing
facility in its permit application, and determine the appropriate
requirements and conditions to include in the permit based on the
alternative for establishing best technology available chosen by the
facility. The following requirements must be included in each permit:
[[Page 17225]]
(1) Cooling Water Intake Structure Requirements. The permit
conditions must include the performance standards that implement the
requirements of Sec. 125.94(b)(2), (3), and (4); Sec. 125.94(c)(1) and
(2); Sec. 125.94(d); Sec. 125.94(e); and Sec. 125.94(f). In determining
compliance with the flow requirement in Sec. 125.94(b)(4)(ii), the
Director must consider anthropogenic factors (those not considered
``natural'') unrelated to the Phase II existing facility's cooling
water intake structure that can influence the occurrence and location
of a thermocline. These include source water inflows, other water
withdrawals, managed water uses, wastewater discharges, and flow/level
management practices (e.g., some reservoirs release water from deeper
bottom layers). The Director must coordinate with appropriate Federal,
State, or Tribal fish or wildlife agencies to determine if any
disruption is beneficial to the management of fisheries.
(i) You must review the Design and Construction Technology Plan
required in Sec. 125.96(b)(4) to evaluate the suitability and
feasibility of the technology or operational measures proposed to meet
the requirements of Sec. 125.94. In each reissued permit, you must
include a condition requiring the facility to reduce impingement
mortality and entrainment commensurate with the implementation of the
technologies in the permit. In considering a permit application, the
Director must review the performance of the technologies implemented
and require additional or different design and construction
technologies, if needed, to meet the impingement mortality and
entrainment reduction requirements for all life stages of fish and
shellfish. In addition, you may consider any chemical, water quality,
and other anthropogenic stresses on the source waterbody in order to
determine whether more stringent conditions are needed to comply with
the requirements of other applicable Federal, State, or Tribal law in
accordance with Sec. 125.94(e).
(ii) If you determine that restoration measures are appropriate at
the Phase II existing facility, you must review the Information to
Support Proposed Restoration Measures required under Sec. 125.95(b)(5)
and determine whether the proposed measures, alone or in combination
with design and construction technologies and operational measures,
will maintain the fish and shellfish in the waterbody at a comparable
level to that which would be achieved under Sec. 125.94. If the
application includes a qualitative demonstration for restoration
measures that will result in increases in fish and shellfish that are
difficult to quantify, you must determine whether the proposed measures
will maintain fish and shellfish in the waterbody at a level
substantially similar to that which would be achieved under
Sec. 125.94. You must also review and approve the proposed Verification
Monitoring Plan submitted under Sec. 125.95(b)(7) and require that the
monitoring continue for a sufficient period of time to demonstrate that
the restoration measures meet the requirements of Sec. 125.94(d).
(iii) For a facility that requests requirements based on site-
specific best technology available for minimizing adverse environmental
impact, you must review the application materials and any other
information you may have that would be relevant to a determination of
whether alternative requirements are appropriate for the facility. If
you determine that alternative requirements are appropriate, you must
make a site-specific determination of best technology available for
minimizing adverse environmental impact in accordance with
Sec. 125.95(c).
(2) Monitoring Conditions. The permit must require the permittee to
perform the monitoring required in Sec. 125.96. In determining
applicable monitoring requirements, the Director must consider the
facility's verification monitoring plan, as appropriate. You may modify
the monitoring program when the permit is reissued and during the term
of the permit based on changes in physical or biological conditions in
the vicinity of the cooling water intake structure.
(3) Record Keeping and Reporting. At a minimum, the permit must
require the permittee to report and keep records as required by
Sec. 125.97.
[FR Doc. 02-5597 Filed 4-8-02; 8:45 am]
BILLING CODE 6560-50-P