[Federal Register Volume 69, Number 131 (Friday, July 9, 2004)]
[Rules and Regulations]
[Pages 41576-41693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4130]
[[Page 41575]]
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Part II
Environmental Protection Agency
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40 CFR Parts 9, 122 et al.
National Pollutant Discharge Elimination System--Final Regulations To
Establish Requirements for Cooling Water Intake Structures at Phase II
Existing Facilities; Final Rule
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules
and Regulations
[[Page 41576]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 122, 123, 124, and 125
[FRL-7625-9]
RIN 2040-AD62
National Pollutant Discharge Elimination System--Final
Regulations to Establish Requirements for Cooling Water Intake
Structures at Phase II Existing Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today's final rule implements section 316(b) of the Clean
Water Act (CWA) for certain existing power producing facilities that
employ a cooling water intake structure and are designed to withdraw 50
million gallons per day (MGD) or more of water from rivers, streams,
lakes, reservoirs, estuaries, oceans, or other waters of the United
States for cooling purposes. This final rule constitutes Phase II of
EPA's section 316(b) regulation development and establishes national
requirements, and procedures for implementing those requirements,
applicable to the location, design, construction, and capacity of
cooling water intake structures at these facilities. The rule applies
to existing facilities that, as their primary activity, both generate
and transmit electric power or generate electric power but sell it to
another entity for transmission. The national requirements, which will
be implemented through National Pollutant Discharge Elimination System
(NPDES) permits, are based on the best technology available to minimize
the adverse environmental impact associated with the use of cooling
water intake structures.
Today's final rule establishes performance standards that are
projected to reduce impingement mortality by 80 to 95 percent and, if
applicable, entrainment by 60 to 90 percent. With the implementation of
today's final rule, EPA intends to minimize the adverse environmental
impact of cooling water intake structures by reducing the number of
aquatic organisms lost as a result of water withdrawals associated with
these structures.
DATES: This regulation is effective September 7, 2004. For judicial
review purposes, this final rule is promulgated as of 1 p.m. Eastern
Standard Time (EST) on July 23, 2004, as provided in 40 CFR 23.2.
ADDRESSES: The docket for today's final rule is available for public
inspection at the Water Docket in the EPA Docket Center, (EPA/DC) EPA
West, Room B102, 1301 Constitution Ave., NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT: For additional technical information
contact Martha Segall at (202) 566-1041 or Debra Hart at (202) 566-
6379. The e-mail address for the above contacts is [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. What Entities Are Regulated by This Action?
This final rule applies to Phase II existing facilities that are
point sources; as their primary activity both generate and transmit
electric power or generate electric power for sale to another entity
for transmission; use or propose to use one or more cooling water
intake structures with a total design intake flow of 50 million gallons
per day (MGD) or more to withdraw water from waters of the United
States; and use 25 percent of water withdrawn exclusively for cooling
water purposes. This rule defines ``existing facility'' as any facility
that commenced constructions on or before January 17, 2002, and any
modification of, or any addition of a unit at such a facility that does
not meet the definition of a new facility at Sec. 125.83.
This rule defines the term ``cooling water intake structure'' to
mean the total physical structure and any associated constructed
waterways used to withdraw cooling water from waters of the United
States. 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.
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Examples of regulated Standard Industrial Classification (SIC) North American Industry Classification
Category entities codes System (NAICS) codes
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Federal, State, and Local Government.. Steam electric 4911 and 493.............................. 221112, 221113, 221119, 221121, 221122
generating point source
dischargers that employ
cooling water intake
structures.
Industry.............................. Steam electric 4911 and 493.............................. 221112, 221113, 221119, 221121, 221122
generating industrial
point source
dischargers that employ
cooling water intake
structures (this
includes utilities and
nonutilities).
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This exhibit is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be regulated by this
action. This exhibit lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the exhibit could also be regulated. To determine whether
your facility is regulated by this action, you should carefully examine
the applicability criteria in Sec. 125.91 of the rule. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed for technical information in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. How Can I Get Copies of This Document and Other Related Information?
1. Docket
EPA has established an official public docket for this action under
Docket ID No. OW 2002-0049. The official public docket consists of the
documents specifically referenced in this action, any public comments
received, and other information related to this action. Although a part
of the official docket, the public docket does not include information
claimed as Confidential Business Information (CBI) or other information
the disclosure of which is restricted by statute. The official public
docket is the collection of materials that is available for public
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA
Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The telephone number
for the Public Reading Room is (202) 566-1744, and the telephone number
for the Water Docket is (202) 566-2426. To view docket materials,
[[Page 41577]]
please call ahead to schedule an appointment. Every user is entitled to
copy 266 pages per day before incurring a charge. The Docket may charge
15 cents for each page over the 266-page limit plus an administrative
fee of $25.00.
2. Electronic Access
You may access this Federal Register document electronically
through the EPA Internet under the ``Federal Register'' listings at
http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facility identified in section
I.B.1. Once in the system, select ``search,'' then key in the
appropriate docket identification number.
C. Supporting Documentation
The final regulation is supported by three major documents:
1. Economic and Benefits Analysis for the Final Section 316(b)
Phase II Existing Facilities Rule (EPA-821-R-04-005), hereafter
referred to as the Economic and Benefits Analysis. This document
presents the analysis of compliance costs, closures, energy supply
effects, and benefits associated with the final rule.
2. Regional Analysis for the Final Section 316(b) Phase II Existing
Facilities Rule (EPA-821-R-04-006), hereafter referred to as the
Regional Analysis Document or the Regional Study(ies) Document. This
document examines cooling water intake structure impacts and regulatory
benefits at the regional level.
3. Technical Development Document for the Final Section 316(b)
Phase II Existing Facilities Rule (EPA-821-R-04-007), 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
final rule's requirements.
D. Table of Contents
I. General Information
A. What Entities Are Regulated By This Action?
B. How Can I Get Copies Of This Document and Other Related
Information?
C. Supporting Documentation
D. Table of Contents
II. Scope and Applicability of the Final Rule
A. What is an ``Existing Facility'' for Purposes of the Section
316(b) Phase II Rule
B. What is ``Cooling Water'' and What is a ``Cooling Water
Intake Structure?''
C. Is My Facility Covered if it Withdraws from Waters of the
United States?
D. Is My Facility Covered if it is a Point Source Discharger?
E. What Cooling Water Use and Design Intake Flow Thresholds
Result in an Existing Facility Being Subject to This Rule?
III. Legal Authority, Purpose, and Background of Today's Regulation
A. Legal Authority
B. Purpose of Today's Regulation
C. Background
IV. Environmental Impacts Associated With Cooling Water Intake
Structures
V. Description of the Final Rule
VI. Summary of Most Significant Revisions to the Proposed Rule
A. Data Updates
B. Regulatory Approach, Calculation Baseline, and Measuring
Compliance
VII. Basis for the Final Regulation
A. Why is EPA Establishing a Multiple Compliance Alternative
Approach for Determining Best Technology Available for Minimizing
Adverse Environmental Impact?
B. Why and How Did EPA Establish the Performance Standards at
These Levels?
C. What Is the Basis for the Five Compliance Alternatives That
EPA Selected for Establishing Best Technology Available?
D. How Has EPA Assessed Economic Practicability?
E. What are the Major Options Considered for the Final Rule and
Why did EPA Reject Them?
F. What is the Role of Restoration and Trading Under Today's
Final Rule?
VIII. Summary of Major Comments and Responses to the Proposed Rule
and Notice of Data Availability (NODA)
A. Scope and Applicability
B. Environmental Impact Associated with Cooling Water Intake
Structures
C. Performance Standards
D. Site-Specific Approach
E. Implementation
F. Restoration
G. Costs
H. Benefits
I. EPA Legal Authority
IX. Implementation
A. When Does the Final Rule Become Effective?
B. What Information Must I Submit to the Director When I Apply
for My Reissued NPDES Permit?
C. How Will the Director Determine the Appropriate Cooling Water
Intake Structure Requirements?
D. What Will I Be Required to Monitor?
E. How Will 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
X. Engineering Cost Analysis
A. Technology Cost Modules
B. Model Facility Cost Development
C. Facility Flow Modifications
XI. Economic Analysis
A. Final Rule Costs
B. Final Rule Impacts
XII. Benefits Analysis
A. Introduction
B. Regional Study Design
C. The Physical Impacts of Impingement and Entrainment
D. National Benefits of Rule
E. Other Considerations
XIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Executive Order 13158: Marine Protected Areas
L. Congressional Review Act
II. Scope and Applicability of the Final Rule
This rule applies to owners and operators of existing facilities,
as defined in Sec. 125.93 of today's rule that meet all of the
following criteria:
The facility's primary activity is to generate electric
power. The facility either transmits the electric power itself, or
sells the electric power to another entity for transmission;
The facility is a point source that uses or proposes to
use one or more cooling water intake structures, including a cooling
water intake structure operated by an independent supplier that
withdraws water from waters of the United States and provides cooling
water to the facility by any sort of contract or other arrangement;
The cooling water intake structure(s) withdraw(s) cooling
water from waters of the United States and at least twenty-five (25)
percent of the water withdrawn is used exclusively for cooling purposes
measured on an average annual basis;
The facility is a point source; and
The cooling water intake structures have a total design
intake flow of 50
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million gallons per day (MGD) or greater.
In the case of a Phase II existing facility that is co-located with
a manufacturing facility, only that portion of the cooling water flow
that is used by the Phase II facility to generate electricity for sale
to another entity will be considered when determining whether the 50
MGD and 25 percent criteria are met. Facilities subject to this final
rule are referred to as ``Phase II existing facilities.'' Existing
facilities with design flows below the 50 MGD threshold, as well as
most existing manufacturing facilities, offshore seafood processors,
and offshore and coastal oil and gas extraction facilities are not
subject to this rule. Those facilities have different characteristics
as compared to the large, power-generating facilities subject to
today's rule. If an existing facility is a point source and has or is
required to have an NPDES permit, but does not meet the applicability
thresholds in today's rule, it is 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. EPA expects to
address at least some of these facilities in a separate rulemaking,
referred to as Phase III.
In the preamble to the proposed rule EPA indicated that its intent
was to exclude from regulation under the Phase II rule existing
facilities whose primary business is manufacturing. See, e.g., 67 FR
17124 (April 9, 2002). At the same time, in Sec. 125.91(a)(3) of the
proposed rule, the applicability criteria covered facilities that both
generate and transmit electric power, or generate electric power but
sell it to another entity for transmission. Numerous commenters
indicated concerns that, as proposed, Sec. 125.91(a)(3) would not
clearly exclude all existing manufacturing facilities from the Phase II
rule since some facilities generate electric power primarily for their
own use, but transmit or sell any surplus. Therefore, for the final
rule, EPA revised Sec. 125.91 so that it reaches only those existing
facilities that generate and transmit or sell electric power as their
primary activity. The final rule does not apply to existing
manufacturing facilities, including manufacturing facilities that
generate power for their own use and transmit any surplus power, or
sell it for transmission, provided the primary activity of the facility
is not electric power generation.
A. What Is an ``Existing Facility'' for Purposes of the Section 316(b)
Phase II Rule?
In today's rule, EPA is defining the term ``existing facility'' to
include any facility that commenced construction as described in 40 CFR
122.29(b)(4) \1\ on or before January 17, 2002. EPA established January
17, 2002 as the date for distinguishing new facilities from existing
ones because that is the effective date of the Phase I new facility
rule. In addition, EPA is defining the term ``existing facility'' in
this rule to include modifications and additions to such facilities,
the construction of which commences after January 17, 2002, that do not
meet the definition of a new facility at 40 CFR 125.83, the definition
used to define the scope of the Phase I rule. That definition states:
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\1\ Construction is commenced if the owner or operator has
undertaken certain installation and site preparation activities that
are part of a continuous on-site construction program, and it
includes entering into certain specified binding contractual
obligations as one criterion (40 CFR 122.29(b)(4)).
``New facility means any building, structure, facility, or
installation that meets the definition of a `new source' or `new
discharger' in [other NPDES regulations] 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
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generating station).'' \2\
\2\ The Phase I rule also listed examples of facilities that
would be ``new'' facilities and facilities that would ``not be
considered a `new facility' in two numbered paragraphs. These read
as follows:
``(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.''
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The preamble to the final Phase I rule discusses this definition at
66 FR 65256; 65258-65259; 65285-65287, December 18, 2001.
EPA included in its Phase II proposed rule a freestanding
definition of ``existing facility.'' That definition read as follows:
``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.'' 67 FR 17221.
Upon further consideration, EPA has decided that it would be
clearest to define existing facility primarily by stating that any
facility that is not a new facility under 40 CFR 125.83 is an existing
facility for purposes of this subpart. Accordingly, the language in
this final rule is intended to be clear and consistent with EPA's
definition of new facility in the Phase I rule at 40 CFR 125.83. In
addition, the definition in today's regulation is also intended to
ensure that sources excluded from the definition of new facility in the
Phase I rule are captured by the definition of existing facility for
the purposes of today's rule. At the same time, EPA believes that the
approach taken in
[[Page 41579]]
today's rule is identical in terms of effect to the approach in the
proposed rule. Thus, the approach taken in today's final rule is in no
way intended to change the scope of the rule as compared with the
proposal as far as the facilities treated as ``existing'' facilities
under the rule. The change is in drafting technique, not in meaning.
The facility encompassed by today's regulation is the point source
that uses a cooling water intake structure to generate electric power.
This is because the requirements of CWA section 316(b) are implemented
through NPDES permits, which are issued only to point source
dischargers of pollutants to waters of the United States. A point
source generating electric power would be subject to Phase I or Phase
II even if the cooling water intake structure it uses is located
elsewhere. Similarly, modifications or additions to the cooling water
intake structure (or even the total replacement of an existing cooling
water intake structure with a new one) does not convert an otherwise
unchanged existing facility into a new facility, regardless of the
purpose of such changes (e.g., to comply with today's rule or to
increase capacity). Rather, the determination as to whether a facility
is new or existing focuses on the power-generating point source itself,
i.e., whether it is a greenfield facility or a stand-alone facility.
This focus on the point source discharger is consistent with section
316(b), which by its express terms applies only to point sources.
Under this rule, an existing power generating facility that uses a
cooling water intake structure and repowers by either replacing or
modifying an existing generating unit would remain subject to
regulation as a Phase II existing facility, unless the existing
facility were completely demolished and another facility constructed in
its place that used either a new intake structure or the existing
structure with an increased design capacity. For example, the following
facility modifications or additions would result in a facility being
characterized as an existing facility under today's 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
at its site 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.
Phase II existing facilities subject to today's rule include point
sources that do not presently use, but propose to use, cooling water
intake structures and do not meet the definition of new facility at
Sec. 125.83. This is appropriate because there may be some cases in
which an existing facility historically withdrew its cooling water from
a municipal or other source, but then decides to withdraw cooling water
from a water of the United States. In these cases, the facility may not
previously have met all of the criteria applicable to an existing
facility under today's rule (i.e., the facility did not previously
withdraw cooling waters from a water of the United States) but may make
changes that would place the facility within the scope of today's rule.
A comparable situation would be when a facility previously relied on
units that do not require cooling water, and then adds or modifies a
unit for purposes of the same industrial operation (i.e., power
generation) such that cooling water is subsequently required. For
example, an existing power generating facility that adds a new
generating unit at the same site for purposes of repowering and
concurrently increases the design capacity of its existing cooling
water intake structure(s), or adds a new intake structure where it did
not previously need one, for example when converting a gas turbine to a
combined cycle unit, would be considered an existing facility.
In the preamble to the Phase I rule, EPA noted that it had defined
``existing facility'' in a manner consistent with existing NPDES
regulations with a limited exception. EPA noted that it had generally
deferred regulation of new sources constructed on a site at which an
existing source is located until the Agency had completed analysis of
its survey data on existing facilities. 66 FR 65286. Accordingly, the
Phase I rule treated almost all changes to existing facilities for
purposes of the same industrial operation as existing facilities. These
included the addition of new generating units at the same site, even
where they required an increase in cooling water intake structure
design capacity or the construction of a new cooling water intake
structure, as well as the complete demolition of an existing facility
and its replacement with a new facility, so long as it did not increase
the design capacity of the cooling water intake structure. The only
exception was the demolition of an existing facility and its
replacement with a new facility accompanied by an increase in design
capacity of the cooling water intake structure. As the preamble
explained: ``The definition of a new facility in the final rule applies
to a facility that is repowered only if the existing facility has been
demolished and another facility is constructed in its place, and
modifies the existing cooling water intake structure to increase the
design intake capacity.'' Id.\2a\ By contrast, the Phase I rule treated
the addition of a new unit for purposes of a different industrial
operation as an existing facility only if it used an existing cooling
water intake structure whose design intake flow was not increased.
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\2a\ Because they are part of the same ``industrial operation,''
such units are not ``stand-alone'' facilities for purposes of the
``new facility'' definition. As the fifth sentence of the definition
of ``new facility'' explains, they are categorically treated as
``existing facilities'' regardless of any other considerations
unless they completely replace an existing facility and its cooling
water design intake capacity is increased. Accordingly, there is
thus no need to make a determination whether they are
``substantially independent'' of the existing facility at the same
site under the fourth sentence of the definition in order to
determine whether they are ``existing'' or ``new facilities.'' The
fifth sentence alone controls that question.
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The Phase II proposed rule continued this approach in its
definition of ``existing facility.'' It continued to treat all changes
to existing facilities for purposes of the same industrial operation as
an existing facility unless the change was a complete demolition and
replacement of the facility accompanied by an increase in cooling water
intake design capacity. It also continued to treat the addition of new
units for purposes of a different industrial operation differently,
only allowing them to be ``existing facilities'' if they used an
existing cooling water intake structure and did not increase its design
intake flow. 67 FR 17221. In putting forth this proposed definition,
EPA noted that it had collected data from a variety of sources,
including survey data, specifically relating to repowering facilities.
Id. at 17131-17135. It also made a point of explaining the wide variety
of repowering activities that an existing facility could undertake
under the proposed rule--anything short of demolition of an existing
facility and its replacement with a new facility combined with
increasing the design capacity of a cooling water intake structure--
while still being regulated as an ``existing facility'' rather than a
``new facility.'' Id. at 17128.
On the basis of the analysis of the survey data and other
information in the record, the Agency now has concluded that it should
adhere to its provisional
[[Page 41580]]
decision generally giving wide latitude to existing facilities to make
changes or additions to their facilities at the same site. In
particular, new units that are added to a facility for purposes of the
same general industrial operation should be treated as existing
facilities because limitations associated with an existing site make it
inappropriate to subject such units to new facility requirements. These
limitations include space, existing location on a waterbody, location
in already congested areas which could affect (if Phase 1 requirements
were applied) visibility impairment, highway and airport safety issues,
noise abatement issues, salt drift and corrosion problems and
additional energy requirements. Moreover, power generation facilities
should not be discouraged from making any upgrade, modification, or
repowering that would increase energy efficiency or supply out of
concern that they would be considered a new facility for purposes of
section 316(b). Additional benefits will be realized in terms of
reducing industrial sprawl if incremental power generation is not
discouraged at existing power generation sites. These considerations
counsel in favor of treating new units locating at existing sites as
existing rather than new facilities. EPA also noted when it promulgated
the Phase I rule (see 66 FR 65286) that it is not feasible for the
permit authority to judge whether the facility could have been located
elsewhere for the purpose of determining whether the facility is
subject to the new facility rules. Accordingly, EPA has decided to
retain the Phase I definition's provision that a new facility does not
include new units that are added to a facility for purposes of the same
general industrial operation. As noted above, this decision is fully
consistent with the approach to this issue laid out in the proposed
Phase II rule.
The final rule definition of ``existing facility'' is sufficiently
broad that it encompasses 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, seafood processors, and offshore and coastal oil and gas
extraction facilities). EPA notes, however, that these facilities are
not covered under this rule because they do not meet the requirements
of Sec. 125.91.
B. What Is ``Cooling Water'' and What Is a ``Cooling Water Intake
Structure?''
Today's rule adopts for Phase II existing facilities the same
definition of a ``cooling water intake structure'' that applies to new
facilities. A cooling water intake structure is defined as the total
physical structure and any associated constructed waterways used to
withdraw cooling water from waters of the United States. Under the
definition in today's rule, 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 rule adopts the
new facility rule's definition of ``cooling water'': 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 rejected from the processes used, or
auxiliary operations on the facility's premises. The definition also
indicates that water used in a manufacturing process either before or
after it is used for cooling is process water for both cooling and non-
cooling purposes and would not be considered cooling water for purposes
of determining whether 25 percent or more of the flow is cooling water.
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. EPA notes that this
clarification does not change the fact that only the intake water used
exclusively for cooling purposes is counted when determining whether
the 25 percent threshold in Sec. 125.91(a)(4) is met.
This definition of ``cooling water intake structure'' differs from
the definition provided in the 1977 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). The final
rule definition clarifies that the cooling water intake structure
includes the physical structure that extends from the point at which
water is withdrawn from the surface water up to and including the
intake pumps. Inclusion of the term ``associated constructed
waterways'' in today's rule 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, which bring in
water, are an essential component of the cooling water intake structure
since without them the intake could not work as designed.
C. Is My Facility Covered if It Withdraws From Waters of the United
States?
The requirements finalized today apply to cooling water intake
structures that have the design capacity to withdraw amounts of water
equal to or greater than the specified intake flow threshold from
``waters of the United States.'' Waters of the United States 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 recognizes that
cooling ponds may, in certain circumstances, constitute part of a
closed-cycled cooling system. See, e.g., 40 CFR 125.83. However, EPA
does not intend this rule 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 a water 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 (SWANCC) v. U.S. Army
Corps of Engineers, 531 U.S. 159 (2001). Therefore, facilities that
withdraw cooling water from cooling ponds that are waters of the United
States and that meet today's other criteria for coverage (including the
requirement that the facility has or will be required to obtain an
NPDES permit) are subject to today's rule. The EPA and the U.S. Army
Corps of Engineers have jointly issued jurisdictional guidance
concerning the term ``waters of the United States'' in light of the
Supreme Court's decision in Solid Waste Agency of Northern Cook County
v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). A copy
of that guidance was published as an Appendix to an Advanced Notice of
Proposed
[[Page 41581]]
Rulemaking on the definition of the phrase ``waters of the U.S.,'' see
68 FR 1991 (January 15, 2003), and may be obtained at (http://www.epa.gov/owow/wetlands/ANPRM-FR.pdf). Section 125.91(d) also
provides, similar to the new facility rule, that facilities that obtain
cooling water from a public water system or use treated effluent are
not deemed to be using a cooling water intake structure for purposes of
this rule.
D. Is My Facility Covered if It Is a Point Source Discharger?
Today's rule applies only to facilities that are point sources
(i.e., 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 Unites States. This is the same
requirement EPA included in the Phase I new facility rule at 40 CFR
125.81(a)(1). Requirements for complying with section 316(b) will
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 will 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 United
States through a point source regulated by an NPDES permit. In this
scenario, the requirements for the cooling water intake structure will
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. Alternatively, requirements applicable
to cooling water intake structures could be incorporated into general
permits. If requirements are placed into a general permit, they must
meet the criteria set out at 40 CFR 122.28.
The Agency also recognizes that some facilities that have or are
required to have an NPDES permit might not own and operate the intake
structure that supplies their facility with cooling water. For example,
electric power-generating facilities operated by separate entities
might be located on the same, adjacent, or nearby property(ies); 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 United States. Section 125.91(c) of today's rule 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 one or more independent suppliers of cooling water if the supplier
or suppliers withdraw water from waters of the United States but that
is not itself a Phase II existing facility. This provision is intended
to prevent facilities from circumventing the requirements of today's
rule by creating arrangements to receive cooling water from an entity
that is not itself a Phase II existing facility.
In addressing facilities that have or are required to have an NPDES
permit that do not directly control the intake structure that supplies
their facility with cooling water, section 125.91(d) also provides,
similar to the new facility rule, that facilities that obtain cooling
water from a public water system or use treated effluent are not deemed
to be using a cooling water intake structure for purposes of this rule.
As EPA stated in the preamble to the final Phase I rule (66 FR
65256 December 18, 2001), the Agency encourages the Director to closely
examine scenarios in which a facility withdraws significant amounts of
cooling water from waters of the United States but is not required to
obtain 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,
the Endangered Species Act, or similar State or Tribal authorities to
address adverse environmental impact caused by cooling water intake
structures at those facilities.
E. What Cooling Water Use and Design Intake Flow Thresholds Result in
an Existing Facility Being Subject to This Rule?
This final rule applies to existing facilities that are point
sources and use cooling water intake structures that (1) withdraw
cooling water from waters of the United States and use at least twenty-
five (25) percent of the water withdrawn exclusively for cooling
purposes, and (2) have a total design intake capacity of 50 MGD or more
measured on an average annual basis (see Sec. 125.91). Today's rule
further provides that where a Phase II existing facility is co-located
with a manufacturing facility, only that portion of the cooling water
intake flow that is used by the Phase II facility to generate
electricity for sale to another entity will be considered for purposes
of determining whether the 50 MGD and 25 percent criteria have been
exceeded.
EPA chose the 50 MGD threshold to focus the rule on the largest
existing power generating facilities. EPA estimates that the 50 MGD
threshold will subject approximately 543 of 902 (60 percent) existing
power generating facilities to this final rule and will address
approximately 90 percent of the total flow withdrawn by these
facilities. EPA established the 50 MGD threshold because 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 an additional opportunity for the Agency to collect
impingement and entrainment data for these smaller facilities.
Similarly, because Phase II existing facilities typically use far
more than 25 percent of the water they withdraw for cooling purposes,
EPA established the 25 percent threshold to ensure that nearly all
cooling water and the largest existing facilities using cooling water
intake structures are addressed by today's requirements. As in the
Phase I rule, water used for both cooling and non-cooling purposes does
not count towards the 25 percent threshold. Thus, the rule does not
discourage the reuse of cooling water as process water or vice versa.
Water that serves as cooling water but is either previously or
subsequently used as process water is not considered cooling water for
purposes of determining the percentage of the water withdrawn that is
used for cooling and whether that percentage equals or exceeds 25
percent. Water withdrawn for non-cooling purposes includes water
withdrawn for warming by liquified natural gas facilities and water
withdrawn for public water systems by desalinization facilities.
III. Legal Authority, Purpose, and Background of Today's Regulation
A. Legal Authority
Today's final rule is issued under the authority of sections 101,
301, 304, 308, 316, 401, 402, 501, and 510 of the Clean Water Act
(CWA), 33 U.S.C. 1251, 1311, 1314, 1318, 1326, 1341, 1342, 1361, and
1370. This rule partially fulfills the obligations of the U.S.
Environmental Protection Agency (EPA) under a consent decree in
Riverkeeper, Inc. v. Leavitt, No. 93 Civ. 0314, (S.D.N.Y).
[[Page 41582]]
B. Purpose of Today's Regulation
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
rule establishes 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 have
the design capacity to withdraw at least fifty (50) MGD of cooling
water from waters of the United States and use at least twenty-five
(25) percent of the water they withdraw exclusively for cooling
purposes.
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 United States, 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; (3) requirements for limitations in NPDES
permits based on effluent limitations guidelines and standards and
water quality standards.
Today's rule implements section 316(b) of the CWA as it applies to
``Phase II existing facilities'' as defined in this rule. 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, while effluent limitations apply to the
discharge of pollutants by NPDES-permitted point sources to waters of
the United States, section 316(b) applies to facilities subject to
NPDES requirements that withdraw water from waters of the United States
for cooling and that use a cooling water intake structure to do so.
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 United States. Forty-five 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 established pursuant to section 301 or section
306. 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 attainment of water quality standards
applicable to the receiving water, section 301(b)(1)(C) of the Clean
Water Act requires permits to include more stringent limits based on
applicable water quality standards. NPDES permits also routinely
include monitoring and reporting requirements, standard conditions, and
special conditions. In addition, NPDES permits contain conditions to
implement the requirements of section 316(b). Section 301 of the CWA
prohibits the discharge of any pollutant by any person, except in
compliance with specified statutory requirements, including section
402.
Section 510 of the Clean Water Act provides, that except as
provided in the Clean Water Act, nothing in the Act shall (1) preclude
or deny the right of any State or political subdivision thereof to
adopt or enforce any requirement respecting control or abatement of
pollution; except that if a limitation, prohibition or standard of
performance is in effect under the Clean Water Act, such State or
political subdivision may not adopt or enforce any other limitation
prohibition or standard of performance which is less stringent than the
limitation prohibition or standard of performance under the Act. EPA
interprets this to reserve for the States authority to implement
requirements that are more stringent than the Federal requirements
under state law. PUD No. 1 of Jefferson County. Washington Dep't of
Ecology, 511 U.S. 700, 705 (1994).
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. EPA has established
effluent limitations guidelines and standards 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, and chemical manufacturing).
Section 316(b) states, in full:
Any standard established pursuant to section 301 or section 306
of [the Clean Water] Act 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 phrase ``best technology available'' in CWA section 316(b) is
not defined in the statute, but its meaning can be understood in light
of similar phrases used elsewhere in the CWA. See Riverkeeper v. EPA,
slip op. at 11 (2nd Cir. Feb. 3, 2004) (noting that the cross-reference
in CWA section 316(b) to CWA section 306 ``is an invitation to look to
section 306 for guidance in discerning what factors Congress intended
the EPA to consider in determining the `best technology available' ''
for new sources).
In sections 301 and 306, Congress directed EPA to set effluent
discharge standards for new sources based on the ``best available
demonstrated control technology'' and for existing sources based on the
``best available technology economically achievable.'' For new sources,
section 306(b)(1)(B) directs EPA to establish ``standards of
performance.'' The phrase ``standards of performance'' under section
306(a)(1) is defined as being the effluent reduction that is
[[Page 41583]]
``achievable through application of the best available demonstrated
control technology, processes, operating methods or other alternatives
* * *.'' This is commonly referred to as ``best available demonstrated
technology'' or ``BADT.'' For existing dischargers, section
301(b)(1)(A) requires the establishment of effluent limitations based
on ``the application of best practicable control technology currently
available.'' This is commonly referred to as ``best practicable
technology'' or ``BPT.'' Further, section 301(b)(2)(A) directs EPA to
establish effluent limitations for certain classes of pollutants
``which shall require the application of the best available technology
economically achievable.'' This is commonly referred to as ``best
available technology'' or ``BAT.'' Section 301 specifies that both BPT
and BAT limitations must reflect determinations made by EPA under Clean
Water Act section 304. Under these provisions, the discharge of
pollutants from point sources is based not on the impact of the
discharge on the receiving waters, but instead upon the capabilities of
the equipment or ``control technologies'' available to control those
discharges.
The phrases ``best available demonstrated technology''; and ``best
available technology''--like ``best technology available'' in CWA
section 316(b)--are not defined in the statute. However, section 304 of
the CWA specifies factors to be considered in establishing the best
practicable control technology currently available, and best available
technology.
For best practicable control technology currently available, the
CWA directs EPA to consider
the total cost of application of technology in relation to the
effluent reduction benefits to be achieved from such application,
and shall also take into account the age of the equipment and
facilities involved, the process employed, the engineering aspects
of the application of various types of control techniques, process
changes, non-water quality environmental impact (including energy
requirements), and such other factors as [EPA] deems appropriate.
33 U.S.C. 1314(b)(1)(b).
For ``best available technology,'' the CWA directs EPA to consider:
the age of equipment and facilities involved, the process employed,
the engineering aspects * * * of various types of control
techniques, process changes, the cost of achieving such effluent
reduction, non-water quality environmental impacts (including energy
requirements), and such other factors as [EPA] deems appropriate.
33 U.S.C. 1314(b)(2)(B).
Section 316(b) expressly refers to section 301, and the phrase
``best technology available'' is very similar to ``best technology
available'' in that section. These facts, coupled with the brevity of
section 316(b) itself, prompted EPA to look to section 301 and,
ultimately, section 304 for guidance in determining the ``best
technology available to minimize adverse environmental impact'' of
cooling water intake structures for existing Phase II facilities.
By the same token, however, there are significant differences
between section 316(b) and sections 301 and 304. See Riverkeeper, Inc.
v. United States Environmental Protection Agency, slip op. at 13, (2nd
Cir. Feb. 3, 2004) (``not every statutory directive contained [in
sections 301 and 306 ] is applicable'' to a section 316(b) rulemaking).
Section 316(b) requires that cooling water intake structures reflect
the best technology available for minimizing adverse environmental
impact. In contrast to the effluent limitations provisions, the object
of the ``best technology available'' is explicitly articulated by
reference to the receiving water: To minimize adverse environmental
impact in the waters from which cooling water is withdrawn. This
difference is reflected in EPA's past practices in implementing
sections 301, 304, and 316(b). While EPA has established effluent
limitations guidelines based on the efficacy of one or more
technologies to reduce pollutants in wastewater in relation to cost
without necessarily considering the impact on the receiving waters, EPA
has previously considered the costs of technologies in relation to the
benefits of minimizing adverse environmental impact in establishing
316(b) limits which historically have been done on a case-by case
basis. In Re Public Service Co. of New Hampshire, 10 ERC 1257 (June 17,
1977); In Re Public Service Co. of New Hampshire, 1 EAD 455 (Aug. 4,
1978); Seacoast Anti-Pollution League v. Costle, 597 F. 2d 306 (1st
Cir. 1979).
For this Phase II rulemaking, EPA therefore interprets CWA section
316(b) as authorizing EPA to consider not only technologies but also
their effects on and benefits to the water from which the cooling water
is withdrawn. Based on these two considerations, EPA has established in
today's rule national requirements for facilities to install technology
that is technically available, economically practicable, and cost-
effective while at the same time authorizing a range of technologies
that achieve comparable reductions in adverse environmental impact.
2. Consent Decree
Today's final rule partially fulfills EPA's obligation to comply
with a consent decree, as amended. The Second Amended Consent Decree,
which is relevant to today's rule, was filed on November 25, 2002, in
the United States District Court, Southern District of New York, in
Riverkeeper, Inc. v. Leavitt, No. 93 Civ 0314, 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, the Amended Consent Decree filed
on November 22, 2000, and the Second Amended Consent Decree, EPA has
divided the rulemaking into three phases and is working under new
deadlines. As required by the Second 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 Second Amended Consent Decree requires that
EPA take final action by February 16, 2004, with respect to Phase II
regulations that are ``applicable to, at a minimum: (1) 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 (2) existing nonutility power
producers (i.e., facilities that generate electric power but sell it to
another entity for transmission) 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.'' The
consent decree further requires that EPA propose regulations governing
cooling water intake structures used, at a minimum, by smaller-flow
power plants and facilities in four industrial sectors (pulp and paper
making, petroleum and coal products manufacturing, chemical and allied
manufacturing, and primary metal manufacturing) by November 1, 2004,
and take final action by June 1, 2006 (Phase III).
3. What Other EPA Rulemakings and Guidance Have Addressed Cooling Water
Intake Structures?
In April 1976, EPA published a final rule under section 316(b) that
addressed cooling water intake structures. 41 FR
[[Page 41584]]
17387 (April 26, 1976), see also the proposed rule 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 those
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). The regulation at 40 CFR
401.14, which reiterates the statutory requirement, 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 described the studies
recommended for evaluating the impact of cooling water intake
structures on the aquatic environment and recommended 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 was also consistent with the approach
described in the 1976 Development Document referenced in the remanded
regulation.
The 1977 section 316(b) draft guidance suggested a general process
for developing information needed to support section 316(b) decisions
and presenting that information to the permitting authority. The
process involved 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
suggested a stepwise approach that considers screening systems, size,
location, capacity, and other factors.
Although the draft guidance described the information that should
be developed, key factors that should be considered, and a process for
supporting section 316(b) determinations, it did not establish uniform
technology-based national standards for best technology available for
minimizing adverse environmental impact. Rather, the guidance left the
decisions on the appropriate location, design, capacity, and
construction of cooling water intake structures to the permitting
authority. Under this framework, the Director determined whether
appropriate studies have been performed, whether a given facility has
minimized adverse environmental impact, and what, if any, technologies
may be required.
4. Phase I 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). On December 26, 2002, EPA made minor changes to
the Phase I regulations. 67 FR 78947. The final Phase I new facility
rule (40 CFR Part 125, Subpart I) establishes 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. In the new
facility rule, EPA adopted a two-track approach. Under Track I, for
facilities with a design intake flow more than 10 MGD, the intake flow
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 cooling system. For facilities 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 beneficial, or to a percentage of the
tidal excursions of a tidal river or estuary. If certain environmental
conditions exist, an applicant with intake capacity greater than 10 MGD
must select and implement appropriate design and construction
technologies for minimizing impingement mortality and entrainment.
(Applicants with 2 to 10 MGD flows are not required to reduce intake
flow to a level commensurate with a closed-cycle, recirculating cooling
system, but must install technologies for reducing impingement
mortality 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 the reduction in impingement mortality and
entrainment it would achieve were it to implement the Track I intake
flow and velocity requirements.
With the new facility rule, EPA promulgated national minimum
requirements for the design, capacity, and construction of cooling
water intake structures at new facilities. EPA believes that the final
new facility rule establishes a reasonable framework that creates
certainty for permitting of new facilities, while providing significant
flexibility to take site-specific factors into account.
5. Proposed Rule for Phase II Existing Facilities
On April 9, 2002, EPA published proposed requirements for cooling
water intake structures at Phase II existing facilities to implement
section 316(b) of the Clean Water Act. EPA proposed to establish
requirements that gave facilities three different compliance options
for meeting performance standards that vary based on waterbody
[[Page 41585]]
type, the percentage of the source waterbody withdrawn, and the
facility capacity utilization rate. 67 FR 17122. EPA received numerous
comments and data submissions concerning the proposal.
6. Notice of Data Availability
On Wednesday, March 19, 2003, EPA published a Proposed Rule Notice
of Data Availability (NODA). 68 FR 13522. This notice presented a
summary of the data EPA had received or collected since proposal, an
assessment of the relevance of the data to EPA's analysis, revisions to
EPA's estimate of the costs and benefits of the proposed rule, new
proposed compliance alternatives, and potential modifications to EPA's
proposed regulatory approach. As part of the NODA, EPA also reopened
the comment period on the complete contents of the proposed rule.
7. 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 final rule. These public participation
activities have focused on various section 316(b) issues, including
issues relevant to development of the Phase I rule and Phase II rule.
EPA conducted outreach to industry groups, environmental groups,
and other government entities in the development, testing, refinement,
and completion of the section 316(b) survey, which has been used as a
source of data for the Phase II rule. The survey is entitled
``Information Collection Request, Detailed Industry Questionnaires:
Phase II Cooling Water Intake Structures & Watershed Case Study Short
Questionnaire,'' September 3, 1999. In addition, EPA conducted two
public meetings on section 316(b) issues. In June of 1998, in
Arlington, Virginia, EPA conducted a public meeting focused on a draft
regulatory framework for assessing potential adverse environmental
impact from impingement and entrainment. 63 FR 27958 (May 21, 1998). In
September of 1998, in Alexandria, Virginia, EPA conducted a public
meeting focused on technology, cost, and mitigation issues. 63 FR 40683
(July 30, 1998). In addition, in September of 1998, and April of 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 representatives of industry and 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 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. Summaries of these meetings are in the docket.
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 Phase I
Notice of Data Availability (NODA) 66 FR 28853 (May 25, 2001). These
comments 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 section 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 (April 24, 2001). 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.
During development of the Phase I final rule and Phase II proposed
rule, EPA coordinated with the staff from the Nuclear Regulatory
Commission (NRC) to ensure that there would not be a conflict with NRC
safety requirements. NRC staff reviewed the proposed Phase II 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 rule and an NRC safety
requirement, the NRC safety requirement take precedence. EPA added
language to address this concern in this final rule.
In a concerted effort to respond to a multitude of questions
concerning the data and analyses that EPA developed as part of the
Phase II proposal, EPA held a number of conference calls with multiple
stakeholders to clarify issues and generally provide additional
information. To supplement these verbal discussions, EPA drafted three
supporting documents: one that explained the methodology EPA used to
calculate entrainment rates; and two others that provided specific
examples of how EPA applied this methodology to calculate benefits for
the proposed rule. In addition, EPA prepared written responses to all
questions submitted by the stakeholders involved in the initial
conference calls.
Finally, EPA sponsored a Symposium on Cooling Water Intake
Technologies to Protect Aquatic Organisms, held on May 6-7, 2003, at
the Hilton Crystal City at National Airport in Arlington, Virginia.
This symposium brought together professionals from Federal, State, and
Tribal regulatory agencies; industry; environmental organizations;
engineering consulting firms; science and research organizations;
academia; and others concerned with mitigating harm to the aquatic
environment by cooling water intake structures. Efficacy and costs of
various technologies to mitigate impacts to aquatic organisms from
cooling water intake structures, as well as research and other future
needs, were discussed.
These coordination efforts and all of the meetings described in
this section are documented or summarized in the docket established for
this rule.
[[Page 41586]]
IV. Environmental Impacts Associated With Cooling Water Intake
Structures
With the implementation of today's final rule, EPA intends to
minimize the adverse environmental impacts of cooling water intake
structures by minimizing the number of aquatic organisms lost as a
result of water withdrawals associated with these structures or through
restoration measures that compensate for these losses. In the Phase I
new facility rule and proposed Phase II existing facility rule, EPA
provided an overview of the magnitude and type of environmental impacts
associated with cooling water intake structures, including several
illustrative examples of documented environmental impacts at existing
facilities (see 65 FR 49071-4; 66 FR 65262-5; and 67 FR 17136-40).
For the same reasons set forth in the preamble to the Phase I rule
(66 FR 65256, 65291-65297), EPA has determined that there are multiple
types of undesirable and unacceptable environmental impacts that may be
associated with Phase II existing facilities, depending on conditions
at the individual site. These types of impacts include entrainment and
impingement; reductions of threatened and endangered 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 fisheries stocks, and recreational fisheries; and stresses
to overall communities and ecosystems as evidenced by reductions in
diversity or other changes in system structure and function. Similarly,
based on the analyses and for the same reasons set forth in the
preamble to the new facility rule (66 FR 65256, 65291-65297), EPA has
selected reductions in impingement and entrainment as a quick, certain,
and consistent metric for determining performance at Phase II existing
facilities. Further, EPA considered the non-impingement and entrainment
environmental impacts for this rule and found them to be acceptable at
a national level. This section describes the environmental impacts
associated with cooling water withdrawals and why they are of concern
to the Agency.
EPA estimates that facilities under the scope of today's final rule
withdraw on average more than 214 billion gallons of cooling water a
day from waters of the United States.\2\ A report by the U.S.
Geological Survey estimates that the use of water by the thermoelectric
power industry accounted for 47 percent of all combined fresh and
saline withdrawals from waters of the United States in 1995.\3\ The
withdrawal of such large quantities of cooling water in turn has the
potential to affect large quantities of aquatic organisms 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, and shellfish. 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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\2\ EPA 1999. Detailed Industry Questionnaires: Phase II Cooling
Water Intake Structures & Watershed Case Study Short Questionnaire.
U.S. Environmental Protection Agency, Office of Wastewater
Management, Washington, D.C. OMB Control No. 2040-0213.
\3\ Solley, W.B., R.R. Pierce and H.A. Perlman. 1998. Estimated
Use of Water in the United States in 1995. U.S. Geological Survey
Circular 1200.
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Impingement takes place when organisms are trapped against intake
screens by the force of the water being drawn through the cooling water
intake structure. The velocity of the water withdrawal by the cooling
water intake structure may prevent proper gill movement, remove fish
scales, and cause other physical harm or death of affected organisms
through exhaustion, starvation, asphyxiation, and descaling. Death from
impingement (``impingement mortality'') can occur immediately or
subsequently as an individual succumbs to physical damage upon its
return to the waterbody.
Entrainment occurs when organisms are drawn through the cooling
water intake structure into the cooling system. Organisms that become
entrained are typically relatively small, aquatic organisms, including
early life stages of fish and shellfish. Many of these small, fragile
organisms serve as prey for larger organisms higher on the food chain
which are commercially and recreationally desirable species. As
entrained organisms pass through a facility's cooling system they may
be subject to mechanical, thermal, and at times, chemical 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 toxic effects from antifouling agents such as chlorine.
Similar to impingement mortality, death from entrainment can occur
immediately or subsequently as the individual succumbs to the damage
from the stresses encountered as it passed through the cooling water
system once it is discharged back into the waterbody.
The environmental impacts attributable to impingement mortality and
entrainment at individual facilities include losses of early life
stages of fish and shellfish, reductions in forage species, and
decreased recreational and commercial landings. EPA estimates that the
current number of fish and shellfish, expressed as age 1 equivalents,
that are killed from impingement and entrainment from cooling water
intake structures at the facilities covered by this Phase II rule is
over 3.4 billion annually. Expressing impingement mortality and
entrainment losses as age 1 equivalents is an accepted method for
converting losses of all life stages into individuals of an equivalent
age and provides a standard metric for comparing losses among species,
years, and facilities. The largest losses are in the mid-Atlantic,
where EPA estimates 1.7 billion age 1 equivalents are lost annually due
to impingement and entrainment.\4\ Although the number of age 1
equivalent fish killed by impingement and entrainment is very large,
precise quantification of the nature and extent of impacts to
populations and ecosystems is difficult. Population dynamics and the
physical, chemical, and biological processes of ecosystems are
extremely complex. While generally accepted as a simple and transparent
method for modeling losses, the proportional methodology that EPA uses
to estimate impingement and entrainment nationwide has uncertainties
that may result in under or over estimating actual impingement and
entrainment rates.
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\4\ For more information, please see Chapter D2: Evaluation of
Impingement and Entrainment in the Mid-Atlantic Region in the
Section 316(b) Existing Facilities Regional Studies, Part D: Mid-
Atlantic.
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Decreased numbers of aquatic organisms can disrupt aquatic food
webs and alter species composition and overall levels of biodiversity.
For example, a model that examined the effect of large entrainment
losses of forage fish, such as bay anchovy, predicted subsequent
reductions in predator populations (including commercially and
recreationally important species such as striped bass, weakfish, and
blue fish) as high as 25%.\5\ This is because forage species, which
comprise a majority of
[[Page 41587]]
entrainment losses at many facilities, are often a primary food source
for predator species.
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\5\ Summers, J.K. 1989. Simulating the indirect effects of power
plant entrainment losses on an estuarine ecosystem. Ecological
Modelling, 49: 31-47.
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EPA is also concerned about the potential impacts of cooling water
intake structures located in or near habitat areas that support
threatened, endangered, or other species of concern (those species that
might be in need of conservation actions, but are not currently listed
as threatened or endangered under State or Federal law).\6\ In the San
Francisco Bay-Delta Estuary, California, in the vicinity of the
Pittsburg and Contra Costa Power Plants several fish species (e.g.,
Delta smelt, Sacramento splittail, chinook salmon, and steelhead) are
now considered threatened or endangered by State 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 average 8,386 age 1
equivalents per year resulting from impingement and 169 age 1
equivalents per year due to entrainment.\7\ In another 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.\8\ The facility
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. An incidental take
limit established by NMFS in a 2001 biological opinion for this
facility has been set at no more than 1,000 sea turtles captured in the
intake, with less than one percent killed or injured as a result of
plant operations (only two of those killed or injured may be Kemp's
Ridley sea turtles and none may be hawksbill or leatherback sea
turtles).\9\ Although the extent to which threatened, endangered, and
other special status species are taken by cooling water intake
structures more generally is yet to be determined, EPA is concerned
about potential impacts to such species.
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\6\ For more information, please see Chapter A12: Threatened &
Endangered Species Analysis Methods in the Regional Studies for the
Final Section 316(b) Phase II Existing Facilities Rule.
\7\ Impingement and entrainment data were obtained from the 2000
Draft Habitat Conservation Plan for the Pittsburg and Contra Costa
facilities. Please see EPA's Regional Studies for the Final Section
316(b) Phase II Existing Facilities Rule for detailed information on
EPA's evaluation of impingement and entrainment at these facilities.
\8\ 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.
\9\ Florida Power and Light Company, 2002. Florida Power & Light
Company St. Lucie Plant Annual Environmental Operating Report 2002.
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Examples of Environmental Impacts Caused by Cooling Water Intakes
1. Hudson River
The power generation facilities on the Hudson River in New York are
some of the most extensively studied in the nation. The fish
populations in the Hudson River have also been studied extensively to
measure the impacts of these power plants. 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.\10\ A Draft Environmental Impact Statement (DEIS)
prepared by industry of entrainment at three Hudson River facilities
(Roseton, Bowline, and Indian Point) predicted year-class reductions of
up to 20 percent for striped bass, 25 percent for bay anchovy, and 43
percent for Atlantic tomcod.\11\ The New York State Department of
Environmental Conservation (NYSDEC) concluded 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.'' \12\ In the DEIS,
the facilities argue that their operation has not harmed the local
aquatic communities, because all observed population changes are
attributable to causes other than the operation of the power plants,
such as water chestnut growth, zebra mussel invasion, changes in
commercial fishing, increases in salinity and improved water quality in
the New York Harbor.
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\10\ 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.
\11\ 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.
\12\ New York State Department of Environmental Conservation
(NYSDEC). 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, the Final Environmental Impact Statement (FEIS)
prepared by NYSDEC for these three facilities concludes that impacts
are associated with the power plants and notes that these impacts are
more like habitat degradation than the ``selective cropping'' of fish
that occurs during regulated fishing because the entire community is
impacted rather than specific species higher on the food chain.\13\ The
multiple facilities on the Hudson River act cumulatively on the entire
aquatic community. New York State's 2002 section 316(b) report lists
the Hudson River downstream from the Federal dam at Troy, New York, as
impacted by cooling water use by power plants due to the loss each year
of a substantial percentage of annual fish production. The FEIS
estimates, from samples collected between 1981 and 1987, that the
average annual entrainment losses from these three facilities includes
16.9 million American shad, 303.4 million striped bass, 409.6 million
bay anchovy, 468 million white perch, and 826.2 million river
herring.\14\ In addition, related studies have found a small long-term
decline in both species richness and diversity within the resident fish
community. A commenter on the DEIS cited further evidence that Atlantic
tomcod, Atlantic sturgeon, bluefish, weakfish, rainbow smelt, white
perch and white catfish are showing long-term trends of declining
abundance of 5 to 8% per annum.\15\ Declines in abundances of several
species and changes in species composition have raised concerns about
the overall health of the community. The FEIS concluded that additional
technology was necessary to minimize the adverse environmental impact
from these three once-through systems.\16\
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\13\ New York State Department of Environmental Conservation
(NYSDEC). 2003. Final Environmental Impact Statement: Concerning the
Applications to Renew NYSPDES Permits for the Roseton 1 & 2, Bowling
1 & 2 and Indian Point 2 & 3 Steam Electric Generating Stations,
Orange, Rockland and Westchester Counties.
\14\ Ibid.
\15\ Henderson, P.A. and R.M. Seaby. 2000. Technical comments on
the Draft Environmental Impact Statement for the State Pollution
Discharge Elimination System Permit Renewal for Bowline Point 1 & 2,
Indian Point 2 & 3, and Roseton 1 & 2 Steam Generating Stations.
Pisces Conservation Ltd.
\16\ New York State Department of Environmental Conservation
(NYSDEC). 2003. Final Environmental Impact Statement: Concerning the
Applications to Renew NYSPDES Permits for the Roseton 1 & 2, Bowline
1 & 2 and Indian Point 2 & 3 Steam Electric Generating Stations,
Orange, Rockland and Westchester Counties.
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The FEIS further concluded that entrainment at these facilities has
diminished the forage base for each species so there is less food
available for the survivors. This disruption of the food chain
compromises the health of the entire aquatic community. The FEIS used,
as a simplified hypothetical example, the loss of an individual bay
anchovy that would ordinarily serve as prey for a juvenile striped
bass. If this individual bay anchovy is killed via entrainment and
disintegrated upon
[[Page 41588]]
passage through a CWIS, it is no longer available as food to a striped
bass, but rather it is only useful as food to lower trophic level
organisms, such as detritivores (organisms that feed on dead organic
material). Further, the bay anchovy would no longer be available to
consume phytoplankton, which upsets the distribution of nutrients in
the ecosystem.\17\
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\17\ Ibid.
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The Hudson River, like many waterbodies in the nation, has
undergone many changes in the past few decades. These changes, which
have affected fish populations either positively or negatively, include
improvements to water quality as a result of upgrades to sewage
treatment plants, invasions by exotic species such as zebra mussels,
chemical contamination by toxins such as PCBs and heavy metals, global
climate shifts such as increases in annual mean temperatures and higher
frequencies of extreme weather events (e.g., the El Nino-Southern
Oscillation), and strict management of individual species stocks such
as striped bass.\18\ In addition, there are dramatic natural changes in
fish populations on an annual basis and in the long term due to natural
phenomena because the Hudson River, like many waterbodies, is a dynamic
system with many fundamental, fluctuating environmental parameters--
such as flow, temperature, salinity, dissolved oxygen, nutrients, and
disease--that cause natural variation in fish populations each
year.\19\ The existence of these interacting variables makes it
difficult to determine the exact contribution of impingement and
entrainment losses on a population's relative health. Nonetheless, as
described later in this section, EPA is concerned about the potential
for cumulative impacts resulting from multiple facility intakes that
collectively impinge and/or entrain aquatic organisms within a specific
waterbody.
---------------------------------------------------------------------------
\18\ Ibid.
\19\ Ibid.
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2. Mount Hope Bay
Environmental impacts were also studied in another recent permit
reissuance for the Brayton Point Station in Somerset, Massachusetts,
where EPA is the permitting authority. EPA determined that, among other
things, the facility's cooling water system had contributed to the
collapse of the fishery and inhibited its recovery despite stricter
commercial and recreational fishing limits and improved water quality
due to sewage treatment upgrades. The facility currently withdraws
nearly one billion gallons of water each day and the average annual
losses of aquatic organisms due to impingement and entrainment are
estimated in the trillions, including 251 million winter flounder, 375
million windowpane flounder, 3.5 billion tautog and 11.8 billion bay
anchovy. A dramatic change in the fish populations in Mount Hope Bay is
apparent after 1984 with a decline by more than 87 percent, which
coincides with a 45 percent increase in cooling water withdrawal from
the bay due to the modification of Unit 4 from a closed-cycle
recirculating system to a once-through cooling water system and a
similar increase in the facility's thermal discharge.\20\ \21\ The
downward trend of finfish abundance in Mount Hope Bay is significantly
greater than declines in adjacent Narragansett Bay that is not
influenced by the operation of Brayton Point Station.\22\ Despite
fishing restrictions, fish stocks have not recovered.
---------------------------------------------------------------------------
\20\ Ibid.
\21\ T Gibson, M. 1995 (revised 1996). Comparison of trends in
the finfish assemblages of Mt. Hope Bay and Narragansett Bay in
relation to operations for the New England Power Brayton Point
station. Rhode Island Division of Fish and Wildlife, Marine
Fisheries Office.
\22\ EPA-New England. 2002. Clean Water Act NPDES Permitting
Determinations for Thermal Discharge and Cooling Water Intake from
Brayton Point Station in Somerset, MA (NPDES Permit No. MA 0003654),
July 22, 2002.
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3. Southern California Bight
At the San Onofre Nuclear Generating Station (SONGS), in a normal
(non-El Ni[ntilde]o) year, an estimated 57 tons of fish were killed per
year when all units were in operation.\23\ The amount lost per year
included approximately 350,000 juveniles of white croaker, a popular
sport fish; this number represents 33,000 adult equivalents or 3.5 tons
of adult fish. In shallow water, densities of queenfish and white
croaker decreased 60 percent within one kilometer of SONGS and 35
percent within three kilometers from SONGS as compared to densities
prior to facility operations. Densities of local midwater fish
decreased 50 to 70 percent within three kilometers of the facility. In
contrast, relative abundances of some bottom-dwelling species in the
same areas were higher because of the enriched nature of the SONGS
discharge, which in turn supported elevated numbers of prey items for
bottom-dwelling fish.
---------------------------------------------------------------------------
\23\ Murdoch, W.W., R.C. Fay, and B.J. Mechalas. 1989. Final
Report of the Marine Review Committee to the California Coastal
Commission. August 1989, MRC Document No. 89-02.
---------------------------------------------------------------------------
4. Missouri River
In contrast to these examples, facilities sited on waterbodies
previously impaired by anthropogenic activities such as channelization
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.\24\ These anthropogenic changes to the
natural river system resulted in significant losses of fish habitat. At
this facility, there was found to be little impingement and entrainment
by cooling water intakes.
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\24\ Tondreau, R., J. Hey and E. Shane, Morningside College.
1982. Missouri River Aquatic Ecology Studies: Ten Year Summary
(1972-1982). Prepared for Iowa Public Service Company, Sioux City,
Iowa.
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Studies like those described in this section provide only a partial
picture of the range of environmental impacts associated with cooling
water intake structures. Although numerous studies were conducted to
determine the environmental impacts caused by impingement and
entrainment at existing facilities, many of them are based on limited
data that were collected as long as 25 years ago. EPA's review of
available facility impingement and entrainment studies identified a
substantial number of serious study design limitations, including data
collections for only one to two years or limited to one season and for
a subset of the species affected by cooling water intakes; limited
taxonomic detail (i.e., many losses not identified to the species
level); a general lack of statistical information such as inclusion of
variance measures in impingement and entrainment estimates; and the
lack of standard methods and metrics for quantifying impingement and
entrainment, which limits the potential for evaluating cumulative
impacts across multiple facilities. Further, in many cases it is likely
that facility operating conditions and/or the state of the waterbody
itself has changed since these studies were conducted. Finally, the
methods for monitoring impingement and entrainment used in the 1970s
and 1980s, when most section 316(b) evaluations were performed, were
often inconsistent and incomplete, making quantification of impacts
difficult in some cases. Recent advances in environmental assessment
techniques
[[Page 41589]]
provide new and in some cases better tools for monitoring impingement
and entrainment and quantifying the current magnitude of the
impacts.25 26
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\25\ Schmitt, R.J. and C.W. Osenberg. 1996. Detecting Ecological
Impacts. Academic Press, San Diego, CA.
\26\ EPRI 1999. Catalog of Assessment Methods for Evaluating the
Effects of Power Plant Operations on Aquatic Communities. TR-112013,
EPRI, Palo Alto, CA.
---------------------------------------------------------------------------
EPA is also concerned about the potential for cumulative impacts
related to cooling water withdrawal. Cumulative impacts may result from
(1) multiple facility intakes impinging and/or entraining aquatic
organisms within a specific waterbody, watershed, or along the
migratory pathway of specific species; (2) the existence of multiple
stressors within a waterbody/watershed, including cooling water intake
withdrawals; and (3) long-term occurrences of impingement and/or
entrainment losses that may result in the diminishment of the
compensatory reserve of a particular fishery stock.
Historically, environmental impacts related to cooling water intake
structures have been evaluated on a facility-by-facility basis. These
historical evaluations do not consider the potential for a fish or
shellfish species to be concomitantly impacted by cooling water intake
structures belonging to other facilities that are located within the
same waterbody or watershed in which the species resides or along the
coastal migratory route of a particular species. The potential
cumulative effects of multiple intakes located within a specific
waterbody or along a coastal segment are difficult to quantify and are
not typically assessed. (One relevant example is provided for the
Hudson River; see discussion earlier in this section.) Nonetheless, EPA
analyses suggest that almost a quarter of all Phase II existing
facilities are located on a waterbody with another Phase II existing
facility (DCN 4-4009). Thus, EPA is concerned that although the
potential for aquatic species to be affected by cooling water
withdrawals from multiple facility intakes is high, this type of
cumulative impact is largely unknown and has not adequately been
accounted for in evaluating impacts. However, recently the Atlantic
States Marine Fisheries Commission (ASMFC) was requested by its member
States to investigate the cumulative impacts on commercial fishery
stocks, particularly overutilized stocks, attributable to cooling water
intakes located in coastal regions of the Atlantic.\27\ Specifically,
the ASMFC study will evaluate the potential cumulative impacts of
multiple intakes on Atlantic menhaden stock \28\ which range along most
of the U.S. Atlantic coast with a focus on revising existing fishery
management models so that they accurately consider and account for fish
losses from multiple intake structures. Results from these types of
studies, although currently unavailable, will provide significant
insight into the degree of impact attributable to intake withdrawals
from multiple facilities.
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\27\ Personal communication, D. Hart (EPA) and L. Kline (ASMFC),
2001.
\28\ Personal communication, D. Hart (EPA) and L. Kline (ASMFC),
2003.
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EPA also considered information suggesting that impingement and
entrainment, in conjunction with other factors, may be a nontrivial
stress on a waterbody. EPA recognizes that cooling water intake
structures are not the only source of human-induced stress on aquatic
systems. Additional stresses to aquatic systems include, but are not
limited to, nutrient, toxics, and sediment loadings; low dissolved
oxygen; habitat loss; and stormwater runoff. Although EPA recognizes
that a nexus between a particular stressor and adverse environmental
impact may be difficult to establish with certainty, EPA believes
stressors that cause or contribute to the loss of aquatic organisms and
habitat such as those described above, may incrementally impact the
viability of aquatic resources. EPA analyses suggest that over 99
percent of all existing facilities with cooling water withdrawal that
EPA surveyed in its section 316(b) survey of existing facilities are
located within two miles of waters that are identified as impaired by a
State or Tribe (see 66 FR 65256, 65297). Thus, the Agency is concerned
that to the extent that many of the aquatic organisms subject to the
effects of cooling water withdrawals reside in impaired waterbodies,
they are potentially more vulnerable to cumulative impacts from an
array of physical and chemical anthropogenic stressors.
Finally, EPA believes that an aquatic population's potential
compensatory ability--the capacity for a species to increase its
survival, growth, or reproduction in response to reductions sustained
to its overall population size--may be compromised by impingement and
entrainment losses in conjunction with all the other stressors
encountered within a population's natural range, as well as impingement
and entrainment losses occurring consistently over extended periods of
time. As discussed in the Phase I new facility rule (see 66 FR 65294),
EPA is concerned that even if there is little evidence that cooling
water intakes alone reduce a population's compensatory reserve, the
multitude of stressors experienced by a species can potentially
adversely affect its ability to recover.\29\ Moreover, EPA notes that
the opposite effect or ``depensation'' (decreases in recruitment as
stock size declines\30\) may occur if a population's size is reduced
beyond a critical threshold. Depensation can lead to further decreases
in population abundances that are already seriously depleted and, in
some cases, recovery of the population may not be possible even if the
stressors are removed. In fact, there is some evidence that depensation
may be a factor in some recent fisheries collapses.\31\ \32\ \33\
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\29\ Hutchings, J.A. and R.A. Myers. 1994. What can be learned
from the collapse of a renewable resource? Atlantic cod, Gadus
morhus, of Newfoundland and Labrador. Canadian Journal of Fisheries
and Aquatic Sciences 51:2126-2146.
\30\ Goodyear, C.P. 1977. Assessing the impact of power plant
mortality on the compensatory reserve of fish populations. Pages
186-195 in W. Van Winkle, ed., Proceedings of the Conference on
Assessing the Effects of Power Plant Induced Mortality on Fish
Populations. Pergamon Press, New York, NY.
\31\ Myers, R.A., N.J. Barrowman, J.A. Hutchings, and A.A.
Rosenburg. 1995. Population dynamics of exploited fish stocks at low
population levels. Science 26:1106-1108.
\32\ Hutchings, J.A. and R.A. Myers. 1994. What can be learned
from the collapse of a renewable resource? Atlantic cod, Gadus
morhus, of Newfoundland and Labrador. Canadian Journal of Fisheries
and Aquatic Sciences 51:2126-2146.
\33\ Liermann, M. and R. Hilborn. 1997. Depensation in fish
stocks: A hierarchic Bayesian meta-analysis. Can. J. Fish. Aquatic.
Sci. 54:1976-1985.
---------------------------------------------------------------------------
Another problem associated with assessing the environmental impact
of cooling water intakes is that existing fishery resource baselines
may be inaccurate.\34\ There is much evidence that the world's
fisheries are in general decline,\35\ \36\ however, many fishery stocks
have not been adequately assessed. According to a 2002 study, only 23
percent of U.S. managed fish stocks have been fully assessed and of
these, over 40 percent are considered depleted or are being fished
beyond sustainable levels.\37\ Another study estimated that more than
70 percent of commercial fish stocks are fully
[[Page 41590]]
exploited, overfished or collapsed.\38\ Another estimated that large
predatory fish stocks are only a tenth of what they were 50 years
ago.\39\ Most studies of fish populations last only a few years, do not
encompass the entire life span of the species examined, and do not
account for cyclical environmental changes such as ENSO events, and
other long term cycles of oceanographic productivity.\40\
---------------------------------------------------------------------------
\34\ Watson, R. and D. Pauly. 2001. Systematic distortions in
world fisheries catch trends. Nature 414:534-536.
\35\ Ibid.
\36\ Pew Oceans Commission. 2003. America's Living Oceans:
Charting a course for sea change. Summary Report. May 2003. Pew
Oceans Commission, Arlington, VA.
\37\ U.S. Commission on Ocean Policy. 2002. Developing a
National Ocean Policy: Mid-Term Report of the U.S. Commission on
Ocean Policy. Washington, DC.
\38\ Broad, W.J. and A.C. Revkin. 2003. Has the Sea Given Up its
Bounty? The New York Times. July 29, 2003.
\39\ Myers, R.A. and B. Worm. 2003. Rapid worldwide depletion of
predatory fish communities. Nature 423: 280-283.
\40\ 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.
---------------------------------------------------------------------------
Although a clear and detailed picture of the status of all our
fishery resources does not exist,\41\ it is undisputed that fishermen
are struggling to sustain their livelihood despite strict fishery
management restrictions which aim to rebuild fish populations. EPA
shares the concerns expressed by expert fishery scientists that
historical overfishing has increased the sensitivity of aquatic
ecosystems to subsequent disturbance, making them more vulnerable to
other stressors, including cooling water intake structures.
---------------------------------------------------------------------------
\41\ National Marine Fisheries Service (NMFS). 2002. Annual
Report to Congress on the Status of U.S. Fisheries--2001. U.S. Dep.
Commerce, NOAA, Natl. Mar. Fish. Serv., Silver Spring, MD, 142 pp.
---------------------------------------------------------------------------
In conclusion, EPA's mission includes ensuring the sustainability
of communities and ecosystems. Thus, EPA must comprehensively evaluate
all potential threats to resources and work towards eliminating or
reducing identified threats. As discussed in this section, EPA believes
that impingement and entrainment losses attributable to cooling water
intakes do pose a threat to aquatic organisms and through today's rule
is seeking to minimize that threat.
V. Description of the Final Rule
Clean Water Act section 316(b) requires that any standard
established pursuant to section 301 or section 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. Today's final rule establishes national performance
requirements for Phase II existing facilities that ensure such
facilities fulfill the mandate of section 316(b).
This rule applies to Phase II existing facilities that use or
propose to use a cooling water intake structure to withdraw water for
cooling purposes from waters of the United States and that have or are
required to have a National Pollutant Discharge Elimination System
(NPDES) permit issued under section 402 of the CWA. Phase II existing
facilities include only those facilities whose primary activity is to
generate and transmit electric power and who have a design intake flow
of 50 MGD or greater, and that use at least 25 percent of the water
withdrawn exclusively for cooling purposes (see Sec. 125.91).
Applicability criteria for this rule are discussed in detail in section
II of this preamble.
Under this final rule, EPA has established performance standards
for the reduction of impingement mortality and, when appropriate,
entrainment (see Sec. 125.94). The performance standards consist of
ranges of reductions in impingement mortality and/or entrainment (e.g.,
reduce impingement mortality by 80 to 95 percent and/or entrainment by
60 to 90 percent). These performance standards reflect the best
technology available for minimizing adverse environmental impacts
determined on a national categorical basis. The type of performance
standard applicable to a particular facility (i.e., reductions in
impingement only or impingement and entrainment) is based on several
factors, including the facility's location (i.e., source waterbody),
rate of use (capacity utilization rate), and the proportion of the
waterbody withdrawn. Exhibit V-1 summarizes the performance standards
based on waterbody type.
In most cases, EPA believes that these performance standards can be
met using design and construction technologies or operational measures.
However, under the rule, the performance standards also can be met, in
whole or in part, by using restoration measures, following
consideration of design and construction technologies or operational
measures and provided such measures meet restoration requirements (see
Sec. 125.94(c)).
As noted earlier in this section, today's rule generally requires
that impingement mortality of all life stages of fish and shellfish
must be reduced by 80 to 95 percent from the calculation baseline; and
for some facilities, entrainment of all life stages of fish and
shellfish must be reduced by 60 to 90 percent from the calculation
baseline (see Sec. 125.94(b)).
Exhibit V-1.--Performance Standard Requirements
----------------------------------------------------------------------------------------------------------------
Capacity utilization Type of performance
Waterbody type rate Design intake flow standard
----------------------------------------------------------------------------------------------------------------
Freshwater River or Stream........... Less than 15%.......... N/A \1\................ Impingement mortality
only.
Equal to or greater 5% or less mean annual Impingement mortality
than 15%. flow. only.
Greater than 5% of mean Impingement mortality
annual flow. and entrainment.
Tidal river, Estuary or Ocean........ Less than 15%.......... N/A \1\................ Impingement mortality
only.
Equal to or greater N/A.................... Impingement mortality
than 15%. and entrainment.
Great Lakes.......................... Less than 15%.......... N/A.................... Impingement mortality
only.
Equal to or greater N/A................... Impingement mortality
than 15%. and entrainment.
[[Page 41591]]
Lakes or Reservoirs.................. N/A.................... Increase in design Impingement mortality
intake flow must not only.
disrupt thermal
stratification except
where it does not
adversely affect the
management of
fisheries.
----------------------------------------------------------------------------------------------------------------
\1\ Determination of appropriate compliance reductions is not applicable.
This final rule identifies five alternatives a Phase II existing
facility may use to achieve compliance with the requirements for best
technology available for minimizing adverse environmental impacts
associated with cooling water intake structures. Four of these are
based on meeting the applicable performance standards and the fifth
allows the facility to request a site-specific determination of best
technology available for minimizing adverse environmental impacts under
certain circumstances. EPA has established these compliance
alternatives for meeting the performance standards to provide a
significant degree of flexibility to Phase II existing facilities, to
ensure that the rule requirements are economically practicable, and to
provide the ability for Phase II existing facilities to address unique
site-specific factors. Application requirements vary based on the
compliance alternative selected and, for some facilities, include
development of a Comprehensive Demonstration Study. Application
requirements are discussed later in this section. The five compliance
alternatives are described in the following paragraphs.
Under Sec. 125.94(a)(1)(i) and (ii), a Phase II existing facility
may demonstrate to the Director that it has already reduced its flow
commensurate with a closed-cycle recirculating system, or that it has
already reduced its design intake velocity to 0.5 ft/s or less. If a
facility can demonstrate to the Director that it has reduced, or will
reduce, flow commensurate with a closed-cycle recirculating system, the
facility is deemed to have met the performance standards to reduce
impingement mortality and entrainment (see Sec. 125.94 (a)(1)(i)).
Those facilities would not be required to submit a Comprehensive
Demonstration Study with their NPDES application. If the facility can
demonstrate to the Director that is has reduced, or will reduce maximum
through-screen design intake velocity to 0.5 ft/s or less, the facility
is deemed to have met the performance standards to reduce impingement
mortality only. Facilities that meet the velocity requirements would
only need to submit application studies related to determining
entrainment reduction, if subject to the performance standards for
entrainment.
Under Sec. 125.94(a)(2) and (3), a Phase II existing facility may
demonstrate to the Director, either that its current cooling water
intake structure configuration meets the applicable performance
standards, or that it has selected design and construction
technologies, operational measures, and/or restoration measures that,
in combination with any existing design and construction technologies,
operational measures, and/or restoration measures, meet the specified
performance standards in Sec. 125.94(b) and/or the requirements in
Sec. 125.94(c).
Under Sec. 125.94(a)(4), a Phase II existing facility may
demonstrate to the Director that it has installed and is properly
operating and maintaining a rule-specified and approved design and
construction technology in accordance with Sec. 125.99(a). Submerged
cylindrical wedgewire screen technology is a rule-specified design and
construction technology that may be used in instances in which a
facility's cooling water intake structure is located in a freshwater
river or stream and meets other criteria specified at Sec. 125.99(a).
In addition, under this compliance alternative, a facility or other
interested person may submit a request to the Director for approval of
a different technology. If the Director approves the technology, it may
be used by all facilities with similar site conditions under his or her
jurisdiction if allowed under the State's administrative procedures.
Requests for approval of a technology must be submitted to the Director
and include a detailed description of the technology; a list of design
criteria for the technology and site characteristics and conditions
that each facility must possess in order to ensure that the technology
can consistently meet the appropriate impingement mortality and
entrainment performance standards in Sec. 125.94(b); and information
and data sufficient to demonstrate that all facilities under the
jurisdiction of the Director can meet the relevant impingement
mortality and entrainment performance standards in Sec. 125.94(b) if
the applicable design criteria and site characteristics and conditions
are present at the facility. A Director may only approve an alternative
technology following public notice and opportunity for comment on the
approval of the technology (Sec. 125.99(b)).
Under Sec. 125.94(a)(5) (i) or (ii), if the Director determines
that a facility's costs of compliance would be significantly greater
than the costs considered by the Administrator for a like facility to
meet the applicable performance standards, or that the costs of
compliance would be significantly greater than the benefits of meeting
the applicable performance standards at the facility, the Director must
make a site-specific determination of best technology available for
minimizing adverse environmental impact. Under this alternative, a
facility would either compare its projected costs of compliance using a
particular technology or technologies to the costs the Agency
considered for a like facility in establishing the applicable
performance standards, or compare its projected costs of compliance
with the projected benefits at its site of meeting the applicable
performance standards of today's rule (see section IX.H). If in either
case costs are significantly greater, the technology selected by the
Director must achieve an efficacy level that comes as close as
practicable to the applicable performance standards without resulting
in significantly greater costs.
During the first permit term, a facility that chooses compliance
alternatives in Sec. 125.94(a)(2), (3), (4), or (5) may request that
compliance with the requirements of this rule be determined based on
the implementation of a Technology Installation and Operation Plan
indicating how the facility will install and ensure the efficacy, to
the extent practicable, of design and construction
[[Page 41592]]
technologies and/or operational measures, and/or a Restoration Plan
(Sec. 125.95(b)(5)). The Technology Installation and Operation Plan
must be developed and submitted to the Director in accordance with
Sec. 125.95(b)(4)(ii). The Restoration Plan must be developed in
accordance with Sec. 125.95(b)(5). During subsequent permit terms, if
the facility has been in compliance with the construction, operational,
maintenance, monitoring, and adaptive management requirements in its
TIOP and/or Restoration Plan during the preceding permit term, the
facility may request that compliance during subsequent permit terms be
based on its remaining in compliance with its TIOP and/or Restoration
Plan, revised in accordance with applicable adaptive management
requirements if the applicable performance standards are not being met.
Three sets of data are required to be submitted 180 days prior to
expiration of a facility's existing permit by all facilities regardless
of compliance alternative selected (see Sec. 122.21(r)(2)(3) and (5)).
These are:
Source Water Physical Data: A narrative description and
scaled drawings showing the physical configuration of all source
waterbodies used by the facility, including areal dimensions, depths,
salinity and temperature regimes, and other documentation that supports
your determination of the waterbody type where each cooling water
intake structure is located; 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 area of influence and the results of such studies; and
locational maps.
Cooling Water Intake Structure Data: A narrative
description of the configuration of each of its facility's cooling
water intake structures and where it is located in the waterbody and in
the water column; latitude and longitude in degrees, minutes, and
seconds for each of its cooling water intake structures; a narrative
description of the operation of each of its 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; a flow distribution and water balance diagram that includes
all sources of water to the facility, recirculating flows, and
discharges; and engineering drawings of the cooling water intake
structure.
Cooling Water System Data: A narrative description of the
operation of each cooling water system, its relationship to the cooling
water intake structures, proportion of the design intake flow that is
used in the system, the number of days of the year the system is in
operation, and seasonal changes in the operation of the system, if
applicable; and engineering calculations and supporting data to support
the narrative description.
In addition to the specified data facilities are require to submit,
some facilities are also required to conduct a Comprehensive
Demonstration Study. Specific requirements for the Comprehensive
Demonstration Study vary based on the compliance alternative selected.
Exhibit II summarizes the Comprehensive Demonstration Study
requirements for each compliance alternative. Specific details of each
Comprehensive Demonstration Study component are provided in section IX
of this preamble.
Exhibit V-2.--Summary of Comprehensive Demonstration Study Requirements for Compliance Alternatives
----------------------------------------------------------------------------------------------------------------
Comprehensive demonstration study requirements (Sec.
Compliance alternative (Sec. 125.94(b)) 125.95(b))
----------------------------------------------------------------------------------------------------------------
1--Demonstrate facility has reduced flow commensurate None.
with closed-cycle recirculating system.
1--Demonstrate facility has reduced design intake No requirements relative to impingement mortality
velocity to <= 0.5 ft/s. reduction. If subject to entrainment performance
standard, the facility must only address entrainment
in the applicable components of its Comprehensive
Demonstration Study, based on the compliance option
selected for entrainment reduction.
2--Demonstrate that existing design and construction Proposal for Information Collection.
technologies, operational measures, and/or restoration Source Waterbody Flow Information.
measures meet the performance standards. Impingement Mortality and/or Entrainment
Characterization Study (as appropriate).
Technology and Compliance Assessment Information
--Design and Construction Technology Plan
--Technology Installation and Operation Plan
Restoration Plan (if appropriate).
Verification Monitoring Plan.
3--Demonstrate that facility has selected design and Proposal for Information Collection.
construction technologies, operational measures, and/ Source Waterbody Flow Information.
or restoration measures that will, in combination with Impingement Mortality and/or Entrainment
any existing design and construction technologies, Characterization Study (as appropriate).
operational measures, and/or restoration measures, Technology and Compliance Assessment Information
meet the performance standards. --Design and Construction Technology Plan
--Technology Installation and Operation Plan
Restoration Plan (if appropriate).
Verification Monitoring Plan.
4--Demonstrate that facility has installed and properly Technology Installation and Operation Plan.
operates and maintains an approved technology. Verification Monitoring Plan.
[[Page 41593]]
5--Demonstrate that a site-specific determination of Proposal for Information Collection.
BTA is appropriate. Source Waterbody Flow Information.
Impingement Mortality and/or Entrainment
Characterization Study (as appropriate).
Technology Installation and Operation Plan.
Restoration Plan (if appropriate).
Information to Support Site Specific Determination of
BTA including:
--Comprehensive Cost Evaluation Study (cost-cost test
and cost-benefit test);
--Valuation of Monetized Benefits of Reducing IM&E
(cost-benefit test only);
--Site-Specific Technology Plan (cost-cost test and
cost-benefit test);
Verification Monitoring Plan.
----------------------------------------------------------------------------------------------------------------
The requirements in today's final rule are implemented through
NPDES permits issued under section 402 of the CWA. Permit applications
submitted after the effective date of the rule must fulfill rule
requirements. However, facilities whose existing permit expires before
[insert four years after date of publication in the FR], may request a
schedule for submission of application materials that is as expeditious
as practicable but does not exceed [insert three years and 180 days
after date of publication in the FR], to provide sufficient time to
perform the required information collection requirements. Phase II
existing facilities must comply with this final rule when they become
subject to an NPDES permit containing these requirements.
Finally, today's rule preserves each State's right to adopt or
enforce more stringent requirements (see Sec. 125.90(d)). It also
provides that if a State demonstrates to the Administrator that it has
adopted alternative regulatory requirements in its NPDES program 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
must approve such alternative regulatory requirements (Sec.
125.90(c)).
VI. Summary of Most Significant Revisions to the Proposed Rule
A. Data Updates
Based on comments received, additional information made available,
and the results of subsequent analyses, EPA revised a number of
assumptions that were used in developing the engineering costs, the
information collection costs, the economic analyses, and the benefits
analyses. These new assumptions are presented below and were used in
the analyses in support of this final rule.
1. Number of Phase II Facilities
Since publishing the NODA, EPA continued to verify design flow
information for facilities that had been classified as either Phase II
(large, existing power production) or Phase III (smaller, power
producing or manufacturing) facilities. This verification resulted in
the following changes: One facility that was classified as a Phase II
facility at proposal was reclassified as being out of scope of the
section 316(b) regulation, as it ceased operating. Four facilities that
were classified as Phase III facilities at proposal based on projected
design intake flow were reclassified as Phase II facilities. As a
result, the overall number of Phase II facilities increased from 540 to
543 facilities.\42\ For the final rule, all costs, benefits, and
economic analyses are based on the updated set of Phase II facilities.
---------------------------------------------------------------------------
\42\ Note that these numbers are unweighted. [As with many
surveys, EPA was able to obtain data from most, but not all of the
facilities potentially subject to this rule. To estimate the
characteristics for those facilities that were not surveyed, EPA
assigned a statistically derived sample weight to those facilities
for which data were collected.] On a sample-weighted basis, the
number of Phase II facilities increased from 551 to 554. The number
of Phase II facilities modeled by the Integrated Planning Model
(IPM) increased from 531 to 535.
---------------------------------------------------------------------------
The reason for the change is that the Agency revised the estimated
design intake flows for facilities that responded to the short-
technical questionnaire EPA used to collect information for this rule.
The Agency has now adopted a more robust set of annual flow data (using
all the years of data collected for the final rule, rather than only
flows for 1998 as reported at proposal). This change altered the
calculated design intake flows for the facilities that provided
responses to the short-technical questionnaire that EPA used to collect
data. Facilities that provided responses to the detailed questionnaire
were unaffected, as the Agency collected maximum design intake flows
directly through the detailed questionnaire.
2. Technology Costs
Since publishing the NODA, EPA used new information to revise the
capital and operation and maintenance (O&M) costs for several
compliance technologies, including those used as the primary basis for
the final rule. Overall, the cost updates resulted in the following
changes: total capital costs decreased by 5 percent and total operation
and maintenance costs decrease by 3 percent. These comparisons are
based on the raw costs, adjusted to year-2002 dollars, which have not
been discounted or annualized.\43\ The revised costing assumptions are
discussed in detail in section VI.3.
---------------------------------------------------------------------------
\43\ Based on additional research conducted after NODA
publication and prior to issuance of the final rule, EPA changed the
projected compliance response for some facilities. These changes,
together with the increase in the number of in-scope Phase II
facilities, contributed to the change in total compliance costs.
---------------------------------------------------------------------------
3. Permitting and Monitoring Costs
Since proposal, EPA made several corrections and revisions to its
burden and cost estimates for implementing the information collection
requirements of today's rule, based on comments received and additional
analysis. The following corrections and revisions were made since
proposal:
EPA corrected the hourly rates for the statistician and
biological technician labor categories, which were inadvertently
transposed at proposal.
EPA increased the burdens associated with impingement and
entrainment monitoring for the Impingement Mortality and Entrainment
Characterization Study.
[[Page 41594]]
EPA revised the pilot study costs to assume that only a
subset of facilities which are projected to install new technologies
will perform pilot studies, and to be proportional to the projected
capital costs for installing these new technologies in order to comply
with the rule. EPA also developed an alternative national cost estimate
using slightly different assumptions with regard to pilot study costs
(see section XI).
EPA adjusted the facility-level costs to account for
facilities that were projected to demonstrate compliance through the
installation of a wedge-wire screen in a freshwater river under the
compliance alternative in 125.94(a)(4).
4. Net Installation Downtime for Non-recirculating Cooling Tower
Compliance Technologies
In developing the proposal for this rule, the Agency estimated that
technologies other than recirculating cooling towers would not require
installation downtime for construction. However, the Agency amended
this outlook for the NODA and published revised estimates of net
construction downtimes for complying facilities installing a subset of
technologies analyzed and developed as candidates for best technology
available (BTA). Based on comments received on the NODA, the Agency has
conducted further research into the construction downtimes that it used
in the NODA for certain technologies. For the final regulation
analysis, the Agency has adopted minor revisions to the construction
downtimes for certain technologies, with the general effect being an
increase in the net construction downtimes for a few technologies that
the Agency views as candidates for reducing entrainment. (Net downtime
was estimated by subtracting 4 weeks from total downtime, based on an
assumption that facilities will schedule construction downtime during a
4 week period of normal downtime unrelated to the rule, for example,
for routine maintenance.) As such, the Agency projects that a
significant number of facilities expected to comply with the
entrainment reduction requirements of the rule will have increased
downtime costs compared to the NODA and the proposal analyses. The
final costs of this rule reflect these changes, which are further
discussed in Section X and the Technical Development Document.
B. Regulatory Approach, Calculation Baseline, and Measuring Compliance
1. Regulatory Approach
EPA has largely adopted the proposed rule with some restructuring
and one significant change: an additional compliance alternative, the
approved technology option (Sec. 125.94(a)(4)) which was discussed in
detail in the NODA (68 FR 13539). The restructuring of the rule
language now makes the reduction of flow commensurate with a closed-
cycle recirculating system a separate compliance alternative, such that
the rule now includes five compliance alternatives. In addition, EPA
has clarified that facilities may comply with the rule requirement in
section 125.94 by successfully implementing the construction,
operational, maintenance, monitoring, and adaptive management
requirements in a Technology Installation and Operation Plan developed
in accordance with Sec. 125.95(b)(4)(ii) and/or a Restoration Plan
developed in accordance with Sec. 125.95(b)(5). These plans must be
designed and adaptively managed to meet the applicable performance
standards in Sec. 125.94(b) and (c). The following discussion
describes the regulatory approach of the final rule, as developed
through the proposed rule and the NODA.
EPA proposed requirements for the location, design, construction,
and capacity of cooling water intakes based on the waterbody type and
the volume of water withdrawn by a facility (67 FR 17122). EPA grouped
waterbodies into five categories, as in the Phase I regulation--
freshwater rivers and streams, lakes and reservoirs, Great Lakes,
estuaries and tidal rivers, and oceans. In general, the more sensitive
or biologically productive the waterbody, the more stringent were the
requirements proposed. The proposed requirements also varied based on
the percentage of the source waterbody withdrawn and the capacity
utilization rate.
Under the proposed rule, a facility could choose one of three
compliance options: (1) Demonstrate that the facility currently meets
the specified performance standards, (2) select and implement design
and construction technologies, operational measures, or restoration
measures that will, in combination with any existing design and
construction technologies, operational measures, or restoration
measures, meet the specified performance standards, and/or (3)
demonstrate that the facility qualifies for a site-specific
determination of best technology available, because its costs of
compliance are significantly greater than those considered by EPA
during the development of the proposed rule or the facility's costs of
compliance would be significantly greater than the benefits of
compliance with the proposed performance standards at the facility. A
facility could also use restoration measures in addition to or in lieu
of design and construction technologies and/or operational measures to
achieve compliance under any of the compliance options.
In the NODA, EPA sought comment on a proposed fourth compliance
option (68 FR 13522, 1359-41). In response to comments expressing
concern that the proposed Comprehensive Demonstration Study
requirements (at Sec. 125.95(b)) would impose a significant burden on
permit applicants, EPA examined an additional, more streamlined
compliance option under which a facility could implement certain
specified technologies that have been predetermined by EPA or the
permitting authority to be highly likely to meet applicable performance
standards, in exchange for not having to perform most of the elements
of the proposed Comprehensive Demonstration Study.
Two variations were offered in the NODA: (1) EPA would evaluate the
effectiveness of specific technologies in achieving an 80 to 95 percent
reduction in impingement mortality and a 60 to 90 percent reduction in
entrainment and then specify applicability criteria to ensure that the
technology would meet the performance standards at facilities
satisfying the criteria, or (2) EPA would establish the criteria and a
process for States to pre-approve intake structure control technologies
as likely to meet the performance standards. For facilities located on
freshwater rivers and streams and meeting specified criteria, wedgewire
screens would be expected to meet the proposed performance standards.
EPA also recognized that these two variations are not mutually
exclusive and either or both could be adopted in the final rule.
To a large extent, EPA is adopting the regulatory framework put
forth in the proposed rule and supplemented by the NODA. To the three
compliance alternatives originally proposed, EPA has added an approved
technology alternative discussed in the NODA and included reduction of
flow commensurate with closed-cycle cooling as a distinct alternative.
2. Calculation Baseline
Also, in response to comments that the proposed definition for the
calculation baseline was overly vague,
[[Page 41595]]
EPA published in the NODA a series of additional considerations
regarding the calculation baseline and a new definition of it taking
these considerations into account (68 FR 13522, 13580-81). The
specifications are as follows and the new definition is in today's
final rule at Sec. 125.93.
Baseline cooling water intake structure is located at, and
the screen face is parallel to, the shoreline or another depth if this
would result in higher baseline impingement mortality and entrainment
than the surface. EPA believes it is appropriate to allow credit in
reducing impingement mortality from screen configurations that employ
angling of the screen face and currents to guide organisms away from
the structure before they are impinged.
Baseline cooling water intake structure opening is located
at or near the surface of the source waterbody. EPA believes it is
appropriate to allow credit in reducing impingement mortality or
entrainment due to placement of the opening in the water column.
Baseline cooling water intake structure has a traveling
screen with the standard 3/8 inch mesh size commonly used to keep
condensers free from debris. This allows a more consistent estimation
of the organisms that are considered ``entrainable'' vs.
``impingeable'' by specifying a standard mesh size that can be related
to the size of the organism that may potentially come in contact with
the cooling water intake structure.
Baseline practices, procedures, and structural
configurations are those that the facility would maintain in the
absence of any structural or operational controls implemented in whole
or in part for the purpose of reducing impingement mortality and
entrainment. This recognizes and provides credit for any structural or
operational controls, including flow or velocity reductions, a facility
had adopted that reduce impingement mortality or entrainment.
EPA also requested comment on allowing an ``as built'' approach
under which facilities could choose to use the existing level of
impingement mortality and entrainment as the calculation baseline if
they did not wish to take credit for the previously adopted measures.
This could significantly simplify the monitoring and calculations
necessary to determine the baseline.
In the NODA, EPA also discussed an approach to compliance under
which facilities would have an ``optimization period'' during which
they would not be required to meet performance standards but, rather,
would install, operate and maintain the selected control technologies
to minimize impingement mortality and entrainment. EPA suggested
several possible durations for this optimization period, and also
requested comment on not specifying the duration, but instead leaving
it up to the Director. 68 FR 13586 (March 19, 2003).
For the final rule, EPA adopted the NODA definition of calculation
baseline with some modifications. More specifically, EPA clarified the
calculation baseline to include consideration of intake depth other
than at or near the surface in determining the baseline. EPA also
adopted the ``as built'' approach for the calculation baseline, which
allows facilities to use current levels of impingement mortality and
entrainment as the calculation baseline if the facility is configured
similarly to the criteria set up for the calculation baseline.
Finally, EPA clarified how compliance with the requirements in
Sec. 125.94 should be determined. In particular, the final rule
provides that compliance during the first permit term (and subsequent
permit terms if specified conditions are met) may be determined based
on compliance with the construction, operational, maintenance,
monitoring, and adaptive management requirements in an approved
Technology Installation and Operation Plan and/ or an approved
Restoration Plan, that has been developed in accordance with specified
requirements to meet the applicable performance standards.
3. Measuring Compliance
EPA has clarified how compliance will be measured. At proposal, EPA
received comment from the industry that there were uncertainties
associated with how compliance with the proposed requirements,
particularly the numeric impingement mortality and entrainment
performance standards, would be determined. Under the proposed rule and
NODA, determining compliance, while obviously dependent on the
compliance alternative selected, would, in general, require the
development of waterbody characterization data, including key criteria
(species, parameters, etc.) to be measured and monitored; a
determination of baseline environmental impacts; implementation of
cooling water intake technologies (assuming the facility does not
already meet applicable performance standards and pursues this
alternative); monitoring the selected criteria; and an evaluation of
compliance with the applicable numeric impingement mortality and/or
entrainment permit standard. The industry stakeholders were concerned
that using the performance standard to set enforceable performance
requirements would require facilities to collect and analyze greater
amounts of data than EPA projected to be able to account for the
variability inherent in biological and efficacy data needed to support
compliance determinations in spite of overall good technology
performance. These stakeholders stated that setting enforceable
performance standards would lead to greater administrative burdens and
delays when determining numeric standards and monitoring requirements
to determine compliance. They were also concerned that establishing
numeric standards would stifle innovation because of fears that a
technology would not perform as anticipated. These stakeholders
suggested that the performance standards in the rule serve as a
consistent basis for setting permit conditions and for identifying
technologies; installing, operating, and maintaining the chosen
technology; performing compliance monitoring; and refining or adjusting
operation, maintenance, or other factors in light of initial
monitoring.
Today's rule allows facilities to develop and implement a
Technology Installation and Operation Plan that would, when used, serve
as the primary mechanism upon which compliance with the performance
standard requirements of this rule is determined. EPA has established
this compliance mechanism because it will ensure that Phase II existing
facilities will continually be required to achieve a level of
performance that constitutes, for them, best technology available for
minimizing adverse environmental impact. For facilities that choose to
comply with applicable requirements in whole or in part through the use
of restoration measures, the Restoration Plan would serve a similar
function. The Restoration Plan is discussed in detail in section IX.
An existing facility that chooses to use a Technology Installation
and Operation Plan must (1) select design and construction
technologies, operational measures, and/or restoration measures that
will meet the performance standards, and (2) prepare a Technology
Installation and Operation Plan documenting what, how and when it will
install, operate, maintain, monitor, assess, and adaptively manage the
design and construction technologies and operational measures to meet
the performance standards, including operational parameters and
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inspection schedules, etc. Each facility using a Technology
Installation Operation Plan must specify key parameters regarding
monitoring (e.g., parameters to be monitored, location, and frequency),
optimization activities and schedules for undertaking them, ways of
assessing efficacy (including adaptive management plan for revising
design and construction technologies or operational measures) that
ensure that such technologies and measures are effectively implemented,
and revised as needed to meet performance standards. This plan must be
reviewed and approved by the Director and evaluated for sufficiency
and/or revised at each permit term to ensure that the facility is
moving expeditiously toward attainment of the applicable performance
standards. Once approved, each Phase II existing facility must
implement the plan according to its terms. Compliance with the final
rule's performance standards during the permit term will be assessed
based on the terms of the plan. If a facility does not comply with the
plan, the Director has discretion to implement the performance
standards or requirements through specifying numeric impingement
mortality and entrainment requirements or technology prescription (for
the site-specific alternative) in the permit. In addition, a facility
that is unable to meet the applicable performance standards using the
Technology Installation and Operation Plan approach may request in a
subsequent permit that the Director make a site-specific determination
of best technology available in accordance with Sec. 125.94(a)(5).
Under these provisions, compliance is determined in terms of
whether the facility is implementing, in accordance with the Technology
Installation and Operation Plan schedule, the technologies, measures
and practices determined by the Director to be the best technologies
available for minimizing adverse environmental impact for that
facility. The Section 316(b) requirements for the facility are
expressed non-numerically, which is analogous to the use of best
management practices under other provisions of the CWA. See, e.g.,
sections 402(a) and 402(p). While EPA has been able to calculate ranges
for national performance standards based on model technologies, EPA has
insufficient data to determine--as it routinely can do in the context
of effluent limitations guidelines and standards--that use of those
model technologies will consistently result in achievement of those
standards.
The record persuades EPA that there is uncertainty associated with
the application and long-term efficacy of these technologies at all
facilities under the multitude of different site-specific factors and
conditions under which these technologies might have to perform. In
addition, even at a single site, there is substantial year-to-year
variability in species abundance and composition, as well as other
natural and anthropogenic factors, that may affect the performance of a
particular technology installed at the facility and it is unclear how
this would affect the efficacy of the technology. The Technology
Installation and Operation Plan provisions are intended to account for
this. For example, meeting numerical reduction standards may not be
possible at some sites either because hydrological conditions are not
conducive to technological effectiveness, or due to species
sensitivity. A Technology Installation and Operation Plan allows a
facility, working with the Director, to identify, install, and
adaptively manage technologies suited to its particular site
conditions. In addition, measuring impingement mortality and
entrainment reduction is difficult and would require a substantial
amount of multi-year biological data and analysis is burdensome for the
facility to develop, is often well beyond the type of information EPA
can expect State Directors to be able to develop when monitoring
compliance. A Technology Installation and Operation Plan simplifies
enforcement: if a facility fails to meet the schedules and other terms
of its plan, it is violating its section 316(b) requirements; there is
no need to engage in extensive debate about the meaning of complex
biological data. This does not mean that biological monitoring and
assessment of success in meeting applicable performance standards is
not important. If fact, it is critical to the compliance approach
adopted in the rule in that it informs facilities and permit
authorities when adaptive management, including revisions to the
Technology Installation and Operation Plan, are needed to meet the
performance standards.
The Technology Installation and Operation Plan provisions also
reflect that there is uncertainty about how long it would take a
facility to adaptively manage the technology and determine the
appropriate operating conditions for the technology to meet the
applicable performance requirements. Data and comments available to EPA
suggest that it is common for existing facilities to adjust
technologies over time in order to achieve optimum performance and,
therefore, an adaptive management approach as specified under a plan is
appropriate. See documentation at DCN 1-3019-BE, 4-1830, and
6-5001. EPA understands that adaptive management is going to be
necessary for a number of facilities because there are relatively few
rigorous evaluations of efficacy under different site and operating
conditions. The available studies may also be limited in the numbers
and types of species that they have evaluated and they may not show the
long term demonstrated effectiveness (and/or consistency of
effectiveness) of the technology with the added uncertainties
associated with the variability of natural biological systems. By
requiring facilities to employ adaptive management principles, EPA
assures that the facility will be implementing, on an ongoing basis,
the best array of technologies available to them.
As noted above, the Technology Installation and Operation Plan
provisions also simplify implementation because they identify the
specific compliance requirements needed to meet the performance
standard ranges and reduce some of the burden associated with measuring
and enforcing compliance with these ranges for both existing facilities
and Directors. Directors and facilities may find use of a Technology
Installation and Operation Plan preferable because it is less feasible
to develop and accurately evaluate biological monitoring data over a
relatively short period, as would be required by measuring compliance
against a numeric performance standard. Rather, the plan provisions
allow implementation to be adaptive, and allow for data development and
assessment to proceed in a manner that is appropriate for the facility,
technology, and waterbody characteristics.
EPA has the legal authority to express section 316(b) requirements
in terms of design criteria, in addition to or in place of enforceable
numeric performance standards. EPA employed a design criterion approach
in the Phase I rule, when EPA was able to identify a single nationally
available and economically practicable technology for the category of
new facilities as a whole, in that case closed-cycle recirculating
cooling technology. In this rule, EPA was not able to identify a
uniform set of technologies that would be available and economically
practicable for all existing facilities, but EPA was able to articulate
a uniform nationally applicable principle in the form of the
performance standards in Sec. 125.94(b), by
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which such technologies could be identified by the Director and
implemented through the use of a Technology Installation and Operation
Plan designed to achieve them. While the technology solution was
different in Phase I and Phase II, the legal principle is the same. In
addition, EPA has the legal authority to identify section 316(b)
requirements as an evolving set of technologies, rather than a single
technology array fixed in time. Section 316(b) requires that any
technology selected under that section must be the best available to
the facility. This term encompasses consideration of effectiveness,
costs, non-water quality environmental impacts, feasibility issues and
a host of other considerations relevant to existing facilities. See
section 304(b)(2)(B). The record indicates that for some facilities,
the question of what are available technologies and, among those, what
is the best technology, may change over time. A Technology Installation
and Operation Plan is intended to assure that at all times a facility
is implementing a technology--or a technology plan--that reflects the
best of all technologies consistent with uniform guiding principles in
the form of performance standards available to them in light of their
site-specific circumstances.
Finally, EPA notes that the way in which performance standards
guide technology selection and implementation varies slightly among the
five compliance options. For facilities complying with Sec.
125.94(a)(1), the technologies identified are so effective that EPA is
confident that any facility employing them will meet the performance
standards, so a Technology Installation and Operation Plan and
performance monitoring are not required. Because these technologies are
not available to all Phase II existing facilities, however, EPA has
provided alternative compliance options. For facilities complying in
accordance with Sec. 125.94(a)(2), (3), or (4), compliance is
generally achieved by implementation of a Technology Installation and
Operation Plan designed to meet applicable performance standards.
Finally, for facilities that comply in accordance with Sec.
125.94(a)(5) for whom even compliance in accordance with Sec.
125.94(a)(2), (3), or (4) is not available because of significantly
higher costs, compliance is achieved by implementation of a Technology
Installation and Operation Plan that achieves an efficacy as close as
practicable to the applicable performance standards.
4. Site-Specific Requirements
a. Costs Significantly Greater Than Costs Considered by the
Administrator
In today's final rule, a facility that demonstrates to the Director
that the costs of compliance with the performance standards and/or
restoration requirements would be significantly greater than the costs
considered by the Administrator for a similar facility, will be given a
site-specific determination of best technology available for minimizing
adverse environmental impact. The standards of the rule have not
changed since proposal, with the exception of one clarification: in the
final rule, the alternative site-specific requirements established by
the Director must achieve an efficacy that is as close as practicable
to the performance standards and/or restoration requirements specified
in Sec. 125.94(b) and (c). This was not specified in the proposed rule
language. In addition, today's final rule also explains how a facility
should calculate costs considered by the Administrator for a similar
facility, for comparison with the costs of compliance for the facility.
EPA details these steps in Sec. 125.94(a)(5)(i)(A)-(F).
In the proposed rule, submittal requirements for facilities
requesting a variance based upon a cost-cost test were identical to
those for facilities requesting a variance based on a cost-benefit
test. Thus, a facility requesting a site-specific determination based
on a cost-cost comparison had to submit three studies: the Cost
Evaluation Study, the Valuation of Monetized Benefits of Reducing
Impingement and Entrainment, and the Site-Specific Technology Plan. In
the final rule, by contrast, a facility must submit only the Cost
Evaluation Study and the Site-Specific Technology Plan.
Under the Comprehensive Cost Evaluation Study detailed at proposal,
a facility must submit detailed engineering cost estimates to document
the costs of implementing the technologies and/or operational measures
in the facility's Design and Construction Plan. In the final rule, the
facility must provide, in addition to the engineering cost estimates, a
demonstration that the costs significantly exceed the benefits of
complying with the applicable performance standards. EPA did not make
significant changes to the requirements under the Site-Specific
Technology Plan.
In summary, the major changes in the cost-cost analysis are as
follows:
In the final rule, EPA has specified how a facility must
``calculate costs considered by the Administrator'' for comparison with
the facility's estimate of the costs of compliance with the final rule,
Elimination of the requirement to submit a Valuation of
Monetized Benefits of Reducing Impingement and Entrainment, and
Addition of the requirement to demonstrate that the costs
significantly exceed the costs considered by the Administrator for a
similar facility, under the Cost Evaluation Study.
b. Costs Significantly Greater Than Benefits
In today's final rule, a facility that demonstrates to the Director
that the costs of compliance with the performance standards and/or
restoration requirements would be significantly greater than the
benefits will be given a site-specific determination of best technology
available for minimizing adverse environmental impact. The standards of
the rule have not changed since proposal, with the exception of one
clarification: in the final rule, the alternative site-specific
requirements established by the Director must achieve an efficacy that
is as close as practicable to the performance standards and/or
restoration requirements specified in Sec. 125.94(b) and (c). This was
not specified in the proposed rule language.
In the final rule, as in the proposal, a facility requesting a
site-specific determination based on a cost-benefit comparison must
submit three studies: the Cost Evaluation Study, the Benefits Valuation
Study (referred to in proposal as Valuation of Monetized Benefits of
Reducing Impingement and Entrainment), and the Site-Specific Technology
Plan. The final rule has both added and clarified requirements for the
first two components relative to the proposal, but has provided no
substantive changes in the requirements for the Site-Specific
Technology Plan.
Under the Comprehensive Cost Evaluation Study detailed at proposal,
a facility must submit detailed engineering cost estimates to document
the costs of implementing the technologies and/or operational measures
in the facility's Design and Construction Plan. In the final rule, the
facility must provide, in addition to the engineering cost estimates, a
demonstration that the costs significantly exceed the benefits of
complying with the applicable performance standards.
Additional clarifications are found in the Benefits Valuation
Study. In the proposed rule, a facility was required to submit (1) a
description of the
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methodology used to estimate the benefits' value, (2) the basis for
assumptions and quantitative estimates, and (3) an uncertainty
analysis. In the final rule, EPA has retained the three submittal
requirements. Under the first component, EPA has specified the
categories of potential valuation estimates in the final rule, namely
commercial, recreational and ecological benefits. EPA has added that a
facility should include non-use benefits if applicable. To the second
component, EPA has added that the basis may include a determination of
entrainment survival if the Director approved such a study.
Requirements for the uncertainty analysis remain unchanged from
proposal. In the final rule, EPA has added that a facility will be
required to submit peer review of the items submitted (upon the
Director's request) and a narrative description of non-monetized
benefits that would result at the site if the facility was to meet
applicable performance standards.
In summary, the major changes in the cost-benefit analysis are as
follows:
Facilities will be required to achieve an efficacy that is
``as close as practicable'' to performance standards and/ or
restoration requirements,
Facilities will need to specifically demonstrate that
costs are significantly greater than the benefits of compliance, and
Facilities will have additional requirements under the
Benefits Valuation Study.
VII. Basis for the Final Regulation
A. Why Is EPA Establishing a Multiple Compliance Alternative Approach
for Determining Best Technology Available for Minimizing Adverse
Environmental Impact?
Today's final rule authorizes a Phase II existing facility to
choose one of five alternatives for establishing the best technology
available for minimizing adverse environmental impacts at the facility.
A facility may (1) demonstrate that it has reduced or will reduce its
cooling water intake flow commensurate with a closed-cycle,
recirculating system, and or that it has reduced, or will reduce, the
maximum through-screen design intake velocity to 0.5 ft/s or less; (2)
demonstrate that its existing design and construction technologies,
operational measures, and/or restoration measures meet the applicable
performance standards and restoration requirements; (3) demonstrate
that it has 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 applicable performance
standards and restoration requirements; (4) demonstrate that it will
install or has installed and properly operates and maintains an
approved design and construction technology; or (5) demonstrate that it
has selected, installed, and is properly operating and maintaining, or
will install and properly operate and maintain, design and construction
technologies, operational measures, and/or restoration measures that
the Director has determined to be the best technology available for the
facility based on application of a specified cost-to-cost test or a
cost-to-benefit test. The basis for each of the five compliance
alternatives is explained in section VII.C. of this preamble.
The rule establishes performance standards for the reduction of
impingement mortality and entrainment. EPA established these
performance standards in part based on a variety of technologies, but
the rule does not mandate the use of any specific technology. These
performance standards vary by waterbody type (i.e., freshwater river/
stream, estuary/tidal river, ocean, Great Lake, or lake/reservoir) and
the capacity utilization rate of the facility. They may be met in whole
or in part using restoration measures after demonstrating, among other
things, that the facility has evaluated the use of design and
construction technologies and operational measures at the site. The
basis for the performance standards is explained in section VII.B. of
this preamble and the basis for the restoration requirements is
explained at section VII.F. of this preamble. For a more detailed
description of the rule, see sections V and IX of this preamble. These
requirements reflect the best technology available for minimizing
adverse environmental impact from cooling water intake structures.
EPA adopted this regulatory scheme because it provides a high
degree of flexibility for existing facilities to select the most
effective and efficient approach and technologies for minimizing
adverse environmental impact associated with their cooling water intake
structures. This approach also reflects EPA's judgment that, given the
wide range of various factors that affect the environmental impact
posed by Phase II existing facilities, different technologies or
different combinations of technologies can be used and optimized to
achieve the performance standards.
B. Why and How Did EPA Establish the Performance Standards at These
Levels?
1. Overview of Performance Standards
The final rule establishes two types of performance standards, one
that addresses impingement mortality and one that addresses
entrainment. EPA used impingement mortality and entrainment as a metric
for performance because these are primary and distinct types of harmful
impacts associated with the use of cooling water intake structures (see
also section IV). Both the impingement mortality and the entrainment
performance standards apply to facilities demonstrating compliance
under alternatives two, three, and four, described above (Sec.
125.94(a)(2), (3), and (4)). In addition, the Director's site-specific
alternative requirements must be as close as practicable to the
applicable performance standards under Sec. 125.94. Performance
standards for entrainment do not apply to facilities with low
utilization capacity, those with a design intake flow of five percent
or less of the mean annual flow of a freshwater river or stream, and
those that withdraw cooling water from a lake (other than one of the
Great Lakes) or reservoir because such facilities have a low propensity
for causing significant entrainment impacts due to limited facility
operation, low intake flow, or general waterbody characteristics. The
impingement mortality performance standard requires a Phase II existing
facility that complies under Sec. 125.94(a)(2), (3), and (4) to reduce
impingement mortality of all life stages of fish and shellfish by 80 to
95 percent from the calculation baseline.
Both an entrainment performance standard and an impingement
mortality standard apply to facilities with a capacity utilization rate
of 15 percent or greater and that withdraw cooling water from a tidal
river, estuary, ocean, one of the Great Lakes, as well as facilities
that use cooling water from a freshwater river or stream and the design
intake flow of the cooling water intake structure is greater than five
percent of the mean annual flow because EPA believes that these
facilities cause more significant entrainment impacts. The entrainment
standard, where applicable, requires a Phase II facility to reduce
entrainment of all life stages of fish and shellfish by 60 to 90
percent from the calculation baseline.
2. Basis for Performance Standards
Overall, the performance standards that reflect best technology
available under today's final rule are not based on a single technology
but, rather, are
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based on consideration of a range of technologies that EPA has
determined to be commercially available for the industries affected as
a whole and have acceptable non-water quality environmental impacts,
except for some potential regional energy (reliability) impacts that
will be minimized to the extent possible through flexible compliance
options. Because the requirements implementing section 316(b) are
applied in a variety of settings and to Phase II existing facilities of
different types and sizes, no single technology is most effective at
all existing facilities, and a range of available technologies has been
used to derive the performance standards.
EPA developed the performance standards for impingement mortality
reduction based on an analysis of the efficacy of 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.
Available performance data for entrainment reduction are not as
comprehensive as impingement data. However, aquatic filter barrier
systems, fine mesh wedgewire screens, and fine mesh traveling screens
with fish return systems have been shown to achieve 80 to 90 percent or
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.
3. Discussion of Key Aspects of Performance Standards
The performance standards at Sec. 125.94(b)(1),(2), and (3) are
based on the type of waterbody in which the intake structure is
located, the volume of water withdrawn by a facility, and the facility
capacity utilization rate. Under the final rule, EPA has grouped
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, one aspect of which is
waterbody type, to be an important factor in addressing adverse
environmental impact caused by cooling water intake structures. Because
different waterbody types have the potential for different adverse
environmental impacts, the requirements to minimize adverse
environmental impact vary by waterbody type.
The reproductive strategies of tidal river and estuarine species,
together with other physical and biological characteristics of those
waters, make them more susceptible than other waterbodies to impacts
from cooling water intake structures (66 FR 288857-288859; 68 FR
17140). In contrast, many aquatic organisms found in non-tidal
freshwater rivers and streams are less susceptible to entrainment due
to their demersal (bottom-dwelling) nature and the fact that they do
not typically have planktonic (free-floating) egg and larval stages (66
FR 28857; 68 FR 17140). Comments on the proposed Phase II existing
facility rule also acknowledge that waterbody type is an important
factor in assessing the impacts of cooling water intake structures,
although some commenters preferred a site-specific approach, and others
maintained that all waters deserve the most rigorous technology. A
number of States supported EPA's proposed approach.
Absent entrainment control technologies, entrainment at a
particular site is generally proportional to intake flow at that site.
As discussed above, EPA believes it is reasonable to vary performance
standards by the potential for adverse environmental impact in a
waterbody type. EPA is limiting the requirement for entrainment
controls in fresh waters to those facilities that withdraw the largest
proportion of water from freshwater rivers or streams because they have
the potential to impinge and entrain larger numbers of fish and
shellfish and therefore have a greater potential to cause adverse
environmental impact. EPA is not requiring entrainment reductions in
freshwater rivers or streams where facilities withdraw 5 percent or
less of the source water annual mean flow because such facilities
generally have a low propensity for causing significant entrainment
impacts due to the low proportion of intake flow in combination with
the characteristics of the waterbody.
There are additional performance standards for facilities
withdrawing from a lake (other than one of the Great Lakes) or a
reservoir. If such a facility proposes to increase the design intake
flow of the cooling water intake structure, the increase in total
design intake flow must not disrupt the natural thermal stratification
or turnover pattern of the source water except in cases where the
disruption does not adversely affect the management of fisheries Sec.
125.94(b)(3)(iii)). The natural thermal stratification or turnover
pattern of a lake is a key characteristic that is potentially affected
by the intake flow (which can alter temperature and/or mixing of cold
and warm water layers) and location of cooling water intake structures
within such waterbodies. Cooling water intake structures withdrawing
from the Great Lakes are 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 Phase I proposed rule (65 FR
49086) and NODA (66 FR 28858), EPA believes that the Great Lakes are a
unique system that should be protected to a greater extent than other
lakes and reservoirs. Similar to oceans, large lakes such as the Great
Lakes can possess estuarine-like environments in the lower reaches of
tributary streams. For example, within the U.S., a total of 1,370
distinct coastal wetlands fringe the Great Lakes and the channels that
connect the lakes. (2-016A Herdendorf, C.E. Great Lakes estuaries.
Estuaries, 13(4): 493-503. 1990, pg. 493). The Agency is therefore
specifying entrainment controls as well as impingement mortality
controls for the Great Lakes. EPA has not applied the entrainment
performance standard to lakes other than the Great Lakes because, in
general, these waterbodies contain aquatic organisms that tend to be
less impacted by entrainment than organisms in estuaries or fresh water
rivers or streams.
The performance standards for facilities with cooling water intake
structures located in a tidal river or estuary and with a capacity
utilization rate of 15 percent or greater are to reduce impingement
mortality by 80 to 95 percent and entrainment by 60 to 90 percent for
fish and shellfish. As discussed previously, EPA believes estuaries and
tidal rivers are more susceptible than other waterbodies to adverse
impacts from impingement and entrainment.
The performance standards for facilities with cooling water intake
structures located in an ocean are 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 for tidal rivers and estuaries
because the coastal zone of oceans (from which coastal cooling water
intake structures withdraw water)
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are highly productive areas for fish and shellfish. (See the Phase I
proposed rule (65 FR 45060) and documents in the record for the Phase I
new facility rule (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. Recent data demonstrate that approximately 78% of the fish
stocks managed by the National Oceanic and Atmospheric Administration's
National Marine Fishery Service (NMFS) are fully exploited, overfished,
or collapsed (America's Living Oceans: Charting a Course for Sea
Change, Pew Oceans Commission, June 4, 2003). (See also 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).
In accordance with the Phase II rule, facilities that operate with
a capacity utilization rate of less than 15 percent are subject to the
performance standard for impingement mortality only. EPA is not
requiring, in today's rule, that these facilities control entrainment.
EPA has several reasons for this. First, EPA has determined that
entrainment control technology is not economically practicable in view
of the reduced operating levels of these facilities. These facilities
also tend to operate most often in mid-winter or late summer, which are
times of peak energy demand but periods of generally low abundance of
entrainable life stages of fish and shellfish. Finally, the total
volume of water withdrawn by these facilities is significantly lower
than for facilities operating at or near peak capacity, and as noted
above, entrainment at a site is generally proportional to flow, absent
entrainment controls. Consequently, EPA determined that it was neither
necessary nor cost-effective for these facilities to reduce entrainment
where the total volume of water withdrawn and the number of organisms
that would be protected from entrainment is likely to be small. EPA is
also allowing facilities with multiple, distinct cooling water intakes
that are exclusively dedicated to different generating units to
determine capacity utilization and applicable performance standards
separately for each intake for the same reasons.
As in the Phase I rule, EPA is setting performance standards for
minimizing adverse environmental impact based on a relatively easy to
measure and certain metric--reduction of impingement mortality and
entrainment. Although adverse environmental impact associated with
cooling water intake structures can extend beyond impingement and
entrainment, EPA has chosen this approach because impingement and
entrainment are primary, harmful environmental effects that can be
reduced through the use of specific technologies. In addition, where
other impacts at the population, community, and ecosystem levels exist,
these will also be reduced by reducing impingement and mortality. Using
impingement mortality and entrainment as a metric provides certainty
about performance standards and streamlines, and thus speeds, the
issuance of permits.
EPA is expressing the performance standard in the form of ranges
rather than a single performance benchmark because of the uncertainty
inherent in predicting the efficacy of any one of these technologies,
or a combination of these technologies, across the spectrum of
facilities subject to today's rule. The lower end of the range is being
established as the percent reduction that EPA, based on the available
efficacy data, expects all facilities could eventually achieve if they
were to implement and optimize available design and construction
technologies and operational measures on which the performance
standards are based. (See Chapter 4, ``Efficacy of Cooling Water Intake
Structure Technologies,'' of the Phase II Existing Facility Technical
Development Document, EPA-821-R-04-007, February 2004. Also, see EPA's
316(b) technology efficacy database, DCN 6-5000.) The lower end of the
range also reflects, in part, higher mortality rates at 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 (e.g., fine mesh screens). The higher
end of the range is a percent reduction that available data show many
facilities can and have achieved with the available technologies upon
which the performance standards are based.
In specifying a range, EPA anticipates that facilities will select
the most cost-effective technologies or operational measures to achieve
the performance level (within the stated range) based on conditions
found at their site, and that Directors will review the facility's
application to ensure that appropriate alternatives were considered.
Proper selection, operation, and maintenance of these technologies
would serve to increase potential efficiencies of the technologies. 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 in
this section, by undertaking restoration measures.
Several additional factors support EPA's expectation that the
impingement mortality and entrainment reduction reflected in the
performance standards can eventually be achieved by all facilities
using the design and construction technologies and measures on which
the standards were based. First, a significant portion of the available
performance data reviewed is from the 1970s and 1980s (when section
316(b) was initially implemented) and does not reflect recent
developments, innovations (e.g., aquatic filter barrier systems, sound
barriers), or experience using these technologies. These data,
developed during early implementation of the CWA, do not fully reflect
today's improved understanding of both how the various control
technologies work and the various factors that reflect what constitutes
and how to measure healthy aquatic conditions. 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. Available information indicates that facilities that use these
cooling water intake structure technologies often achieve better
results from the technologies through adjusting which technologies are
applied and how they are used. Such optimization, which also benefits
from the advances in understanding noted above, would be promoted under
this rule as facilities work to achieve the performance standards.
Third, EPA believes that some facilities could achieve further
reductions (estimated at 15-30 percent) in impingement mortality and
entrainment by providing for seasonal flow restrictions, variable speed
pumps, systems conversions to closed-cycle, recirculating systems, and
other operational measures and innovative flow reduction alternatives.
Such operational measures could be used to supplement design and
construction technologies where necessary to meet the performance
standards. Facilities also could benefit from combining inexpensive
technologies as a ``suite.'' For additional discussion, see chapter 4
in the Phase II Existing Facility Technical Development Document.
The calculation baseline used to determine compliance with
[[Page 41601]]
performance standards is defined in Sec. 125.93 as an estimate of
impingement mortality and entrainment that would occur at a site
assuming (1) the cooling water system had been designed as a once-
through system; (2) the opening of the cooling water intake structure
is located at, and the face of the standard \3/8\-inch mesh traveling
screen is oriented parallel to, the shoreline near the surface of the
source waterbody; and (3) the baseline practices and procedures are
those that the facility would maintain in the absence of any
operational controls, including flow or velocity reductions,
implemented in whole or in part for the purposes of reducing
impingement mortality and entrainment. In addition, the facility may
choose to use the current level of impingement mortality and
entrainment as the calculation baseline. EPA's definition also
clarifies the range of available information sources for the baseline.
The calculation baseline may be estimated using: historical impingement
mortality and entrainment data from the facility or from another
facility with comparable design, operational, and environmental
conditions; current biological data collected in the waterbody in the
vicinity of the facility's cooling water intake structure; or current
impingement mortality and entrainment data collected at the facility.
Further, a facility may request that the calculation baseline be
modified to be based on a location of the opening of the cooling water
intake structure at a depth other than at or near the surface if it can
demonstrate to the Director that the other depth would correspond to a
higher baseline level of impingement mortality and/or entrainment. EPA
decided to use this definition because it represents the most common
default conditions the Agency could identify to give facilities credit
for design and construction technologies, operational measures, and/or
restoration measures that they have already implemented to minimize
adverse environmental impact, while providing a clear and relatively
simple definition. Based on comments received on the Phase II NODA,
this calculation baseline definition includes additional criteria that
EPA has added to provide clarity to the analysis. (Proposed changes to
the calculation baseline were discussed in the Phase II NODA, see 68 FR
13580). In many cases, existing technologies at the site show 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. In addition, operational measures such as
operation of traveling screens, employment of more efficient return
systems, and even locational choices should be credited for any
corresponding reduction in impingement mortality and entrainment. See
section IX of this preamble for a discussion of how the calculation
baseline is used to compare facility performance with the rule's
performance standards.
C. What Is the Basis for the Five Compliance Alternatives That EPA
Selected for Establishing Best Technology Available?
1. Meeting Performance Standards Through Reducing Intake Flow
Commensurate With a Closed Cycle Recirculating System or Reduced Design
Intake Velocity
Under Sec. 125.94(a)(1)(i), any facility that reduces its flow to
a level commensurate with a closed-cycle, recirculating cooling system
meets the performance standards in today's rule because such a
reduction in flow is deemed to satisfy any applicable impingement
mortality and entrainment performance standards for all waterbodies.
Facilities that select this compliance alternative either through the
use of closed-cycle recirculating system technology at the plant, or by
retrofitting their facility, will not be required to further
demonstrate that they meet the applicable performance standards.
Similarly, under 125.94(a)(1)(ii), any facility that reduces its design
intake velocity to 0.5 ft/s or less is deemed to have met the
performance standards for impingement mortality and is not required to
demonstrate further that it meets the performance standards for
impingement mortality.
Available data described in Chapter 3 of the Phase II Existing
Facility Technical Development Document 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.\44\ Although closed-cycle, recirculating cooling is not one of
the technologies on which the performance standards are based, use of a
closed-cycle, recirculating cooling system would always achieve the
performance standards and therefore, facilities that reduce their flow
commensurate with closed-cycle, recirculating cooling systems are
deemed to have met performance standards. The rule, at Sec.
124.94(a)(1)(i), thus establishes a compliance alternative based on the
use of a closed-cycle, recirculating cooling system. While EPA based
the requirements of the new facility rule on the performance standards
of closed-cycle recirculating systems, EPA has determined that this
technology is not economically practicable for many existing Phase II
facilities. EPA is nonetheless aware that some existing facilities have
installed this highly effective technology and has thus provided a
streamlined alternative for such facilities.
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\44\ 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. 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. The lower range of water usage would be expected where
State water quality standards limit chloride to a maximum increase
of 10 percent over background and therefore require a 1.1 cycle of
concentration. The higher range should be attainable where cycles of
concentration up to 2.0 are used for the design.
---------------------------------------------------------------------------
Additionally, EPA established a compliance alternative that allows
facilities to reduce intake velocity to meet the impingement mortality
performance standards. As EPA discussed in the proposed rule at 67 FR
17151 and Phase I final rule at 66 FR 65274, intake velocity is one of
the key factors that can affect the impingement of fish and other
aquatic biota, since in the immediate area of the intake it exerts a
direct physical force against which fish and other organisms must act
to avoid impingement and entrainment. As discussed in that notice, EPA
compiled data from three swim speed studies (University of Washington
study, Turnpenny, and EPRI) and these data indicated that a 0.5 ft/s
velocity would protect at least 96 percent of the tested fish. As
further discussed, EPA also identified federal documents (Boreman, DCN
1-5003-PR; Bell (1990); and National Marine Fisheries Service (NMFS),
(1997)), an early swim speed and endurance study performed by
Sonnichsen et al. (1973), and fish screen velocity criteria that are
consistent with this approach.
[[Page 41602]]
2. Meeting Performance Standards Through the Use of Design and
Construction Technologies, Operational Measures, and/or Restoration
Measures
Under the second and third compliance alternatives (Sec.
125.94(a)(2) and (3)), a facility may either demonstrate to the
Director that the facility's existing design and construction
technologies, operational measures, and/or restoration measures already
meet the minimum performance standards specified under Sec. 125.94(b)
and (c), or that it has selected design and construction technologies,
operational measures, and/or restoration measures or some combination
thereof that will meet these performance standards.
Available data indicate that, when considered as a suite of
technologies, barrier and fish handling technologies are available on a
national basis for use by Phase II existing facilities. These
technologies exist and are in use at various Phase II facilities and,
thus, EPA considers them collectively technologically achievable. In
addition, 50 percent of the potentially regulated facilities that do
not already have closed-cycle cooling systems have some other
technology in place that reduces impingement or entrainment. In turn, a
large subset of these facilities (33 percent) also have fish handling
or return systems that reduce the mortality of impinged organisms. The
fact that these technologies are collectively available means that one
or more technologies within the suite is available to each Phase II
facility.
EPA finds that the design and construction technologies necessary
to meet the requirements are commercially available and economically
practicable for existing facilities, 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 filter 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 (gas-fired steam),
Lovett is located in Tomkins Cove, New York, along the Hudson River.
The facility first began operations in 1949 and has three generating
units with once-through cooling systems. In 1994, Lovett began the
testing of an aquatic filter 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 improvements of this vendor's technology
for all subsequent installations at other locations.
Big Bend Power Station. Situated on Tampa Bay, Big Bend is a 1998
MW (coal-fired steam) facility with four 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 (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
Prince George's County, Maryland, Chalk Point has a capacity of 2647 MW
(oil-fired steam). The facility has four generating units and uses a
combination of once-through and closed-cycle, recirculating cooling
systems (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 net in 1985, giving the facility a coarse mesh (1.25[sec]) outer
net and a fine mesh (.75[sec]) 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.
3. Meeting Performance Standards Through Use of an Approved Design and
Construction Technology
Under the fourth compliance alternative, a facility can demonstrate
that it meets specified conditions and that it has installed and
properly operates and maintains a pre-approved technology. EPA is
approving one technology at this time: submerged cylindrical wedgewire
screen technology to treat the total cooling water intake flow. There
are five conditions that must be met in order to use this technology to
comply with the rule: (1) The cooling water intake structure is located
in a freshwater river or stream; (2) the cooling water intake structure
is situated such that sufficient ambient counter currents exist to
promote cleaning of the screen face; (3) the through screen design
intake velocity is 0.5 ft/s or less; (4) the slot size is appropriate
for the size of eggs, larvae, and juveniles of any fish and shellfish
to be protected at the site; and (5) the entire main condenser cooling
water flow is directed through the technology (small flows totaling
less than two MGD for auxiliary plant cooling uses are excluded).
Directors are explicitly authorized in Sec. 125.99 to pre-approve
other technologies for use at facilities with other specified
characteristics within their respective jurisdiction after providing
the public with a notice and an opportunity to comment on the request
for approval of the technology. The Director's authority to pre-approve
other technologies is not limited to technologies for use by facilities
located on freshwater rivers and streams.
EPA has adopted this compliance alternative in response to comments
that suggested that EPA provide an additional, more streamlined
compliance option under which a facility could implement certain
specified technologies that are deemed highly protective in exchange
for reducing the scope of the Comprehensive Demonstration Study. (See
68 FR 13522, 13539; March 19, 2003). EPA evaluated the effectiveness of
specific technologies using the impingement mortality and entrainment
reduction performance standards as assessment criteria. The technology
selected for the approved technology option has a demonstrated ability
to reduce impingement mortality by 80 to 95 percent for fish and
shellfish and, if required, reduce entrainment by 60 to 90 percent for
any stages of fish and shellfish at facilities that meet the conditions
specified in section 125.99(a). Thus, the technology has a demonstrated
ability to meet the most stringent performance standards that would
apply to any facility situated on a freshwater river or stream. (See
DCN 1-3075, 1-5069, 1-5070, 3-0002, and 4-4002B. Also see, DCN 6-5000
and Chapter 3 of the Technical Development Document.) Because
cylindrical wedgewire screens are believed to be effective when
deployed under the
[[Page 41603]]
specified conditions and properly maintained, facilities that select
this compliance option are provided substantially streamlined
requirements for completing the Comprehensive Demonstration Study.
However, facilities selecting this option are still required to prepare
a Technology Installation and Operation Plan to monitor the
effectiveness of the technology at their site in meeting the
performance standards.
4. Site-Specific Determination of Best Technology Available To Minimize
Adverse Environmental Impact
A facility may comply with the rule by seeking a site-specific
demonstration of the best technology available to minimize adverse
environmental impact by demonstrating, to the Director's satisfaction,
that its cost of complying with the applicable performance standards
would be significantly greater than the costs considered by EPA for a
like facility when establishing such performance standards, or that its
costs would be significantly greater than the benefits of complying
with such performance standards at the facility. (See sections
125.94(a)(5)(i) and (ii)). If a facility satisfies one of the two cost
tests in Sec. 125.94(a)(5), then the Director must establish site-
specific alternative requirements based on design and construction
technologies, operational measures, and/or restoration measures that
achieve an efficacy that is, in the judgment of the Director, as close
as practicable to the applicable performance standards without
resulting in costs that are significantly greater than either the costs
considered by the Administrator in establishing the applicable
performance standards, or the benefits at the facility.
In establishing the performance standards in 125.94(b) and the
compliance alternatives in sections 125.94(a)(1)-(4), EPA considered
several factors, including efficacy, availability, ease of
implementation, indirect effects, the costs that EPA expects all
existing facilities to incur (national costs) and the benefits if all
existing facilities meet the performance standards (national benefits).
This provision for alternative requirements is included in the rule to
give facilities flexibility to demonstrate that the best technology
available to minimize adverse environmental impact at their particular
sites may be less stringent than would otherwise be achieved if the
facility selected one of the compliance alternatives in sections
125.94(a)(1)-(4). (For a discussion of EPA's legal authority to
authorize compliance with alternative requirements based on this cost-
cost comparison, see Section VIII. I.).
a. Basis of the Cost-Cost Test
For a number of related reasons, EPA chose to use a comparison of a
facility's actual costs to the costs EPA estimated that facility would
incur to meet the national performance standards (a ``cost-cost test'')
as a basis for obtaining a site-specific determination of best
technology available. EPA's record for this rule shows that, for the
category of existing facilities as a whole, today's rule is technically
achievable and economically practicable. Although EPA collected more
information for this rulemaking than is typical for an effluent
limitation guideline rulemaking, detailed information on some factors
important to the effectiveness and costs of the technologies, such as
debris loading and the presence of navigational channels within the
waterbody at which cooling water intakes are sited, was not requested.
Moreover, the information EPA used to develop its costs was in some
cases limited by the fact that, while EPA sent surveys to all
facilities covered under today's rule, only 42% were sent detailed
questionnaires. The remaining 58% only received a short technical
questionnaire which requested minimal characterization information.
Also, EPA may not have elicited information regarding characteristics
of a particular facility that, if known would have either significantly
changed EPA's national cost estimates or demonstrated that none of the
technologies on which the categorical requirements are based are
economically achievable by the facility. Similarly, existing facilities
have less flexibility than new facilities in selecting the location of
their intakes and technologies for minimizing adverse environmental
impact, and therefore it may be difficult for some facilities to avoid
costs much higher than those EPA considered when establishing the
performance standards. The cost-cost site-specific alternative ensures
that the overall rule remains economically practicable for facilities
subject to today's rule. In short, for certain facilities EPA may not
have anticipated some site-specific costs or the costs for retrofit may
exceed those EPA considered. Despite EPA's best effort, such costs are
difficult to estimate in a national rule. Because of the wide range of
available technologies considered and a number of site-specific factors
that may significantly affect the cost and practicability of installing
particular technologies at particular sites, the site-specific
uncertainty in the cost estimates is higher than for an effluent
limitations guidelines rulemaking. Thus, EPA may not have anticipated
all site-specific costs that a facility could incur. In addition,
existing facilities have less flexibility than new facilities in
selecting the location of their intakes and technologies for minimizing
adverse environmental impact and, therefore, it may be difficult for
some facilities to avoid costs much higher than those EPA considered
when establishing the performance standards in the rule. For all of
these reasons, EPA believes that the cost-cost site-specific compliance
alternative is necessary to ensure that the rule is economically
practicable for existing Phase II facilities. In order to ensure that
this alternative provides only the minimum relaxation of performance
standards that is needed to make the rule economically practicable,
Sec. 125.94(a)(5)(i) requires that the site-specific requirements
achieve an efficacy that is as close as practicable to the applicable
performance standards without resulting in costs that are significantly
greater than those considered by the Administrator for a like facility
when establishing the performance standards.
b. Basis of the Cost-Benefit Test
EPA decided to use a comparison of a facility's costs to the
benefits of meeting the performance standards at the facility (a
``cost-benefit test'') as another basis for obtaining a site-specific
determination of BTA to minimize adverse environmental impact. Section
316(b) authorizes consideration of the environmental benefit to be
gained by requiring that the location, design, construction, and
capacity of cooling water intake structures reflect the best
economically practicable technology available for the purpose of
minimizing adverse environmental impact. Accordingly, in determining
that the technologies on which EPA based the compliance alternatives
and performance standards are the best technologies available for
existing facilities to minimize adverse environmental impact, EPA
considered the national cost of those technologies in comparison to the
national benefits--i.e., the reduction in impingement and entrainment
that EPA estimated would occur nationally if all existing facilities
selected one of the compliance options in sections 125.94(a)(1)-(4).
While EPA believes that there is considerable value in promulgating
national performance standards under section 316(b) based on what EPA
determines, on a national basis, to be the best technology available to
minimize adverse environmental impacts, EPA also recognizes that, at
[[Page 41604]]
times, determining what is necessary to minimize adverse environmental
impacts can necessitate a site-specific inquiry. EPA's comparison of
national costs to national benefits may not be applicable to a specific
site due to variations in (1) the performance of intake technologies
and (2) characteristics of the waterbody in which the intake(s) are
sited, including the resident aquatic biota. For example, there may be
some facilities where the absolute numbers of fish and shellfish
impinged and entrained is so minimal that the cost to achieve the
required percentage reductions would be significantly greater than the
benefits of achieving the required reductions at that particular site.
More specifically, because of the location of the intake, the
characteristics of a particular waterbody, or the behavioral patterns
of the fish or shellfish in that particular waterbody, there may be
little or no impingement mortality or entrainment occurring at the site
(see Neal Generating Complex facility example provided in section IV of
this preamble). For such a facility, the cost of reducing an already
small amount of impingement mortality and entrainment by 80 to 95
percent and 60 to 90 percent, respectively, may be significantly
greater than the benefits. In short, it may not be cost-effective and,
therefore may be economically impracticable for a facility to achieve
percentage reductions when attempting to save a small number of fish or
shellfish. Thus, in a waterbody that is already degraded, very few
aquatic organisms may be subject to impingement or entrainment, and the
costs of retrofitting an existing cooling water intake structure may be
significantly greater than the benefits of doing so. By requiring best
technology available to minimize adverse environmental impact, section
316(b) invites a consideration of both technology and of environmental
conditions, including the potential for adverse impacts, in the
receiving waterbody. EPA believes it is a reasonable interpretation of
the statute to allow the Director to consider the results of meeting
the performance standards in terms of reducing environmental impacts
(i.e., the benefits) in cases where the costs of installing the
technology are significantly greater than the reduction in
environmental impacts would warrant. As with the cost-cost site-
specific provision, EPA also wants to ensure that any relaxation of the
performance standards be the minimum necessary to ensure that the costs
are not significantly greater than the benefits. Section
125.94(a)(5)(i) thus provides that alternative site-specific
requirements must achieve an efficacy that is as close as practicable
to the applicable performance standards without resulting in costs that
are significantly greater than the benefits of meeting the performance
standards at the facility.
D. How Has EPA Assessed Economic Practicability?
The legislative history of section 316(b) indicates that the term
``best technology available'' should be interpreted as ``best
technology available commercially at an economically practicable
cost.'' \45\ This position reflects congressional concern that the
application of best technology available should not impose an
impracticable and unbearable economic burden. Thus, EPA has conducted
extensive analyses of the economic impacts of this final rule, using an
integrated energy market model (the IPM \45\). For a complete
discussion of this analysis, please refer to section XI.B.1 of this
preamble or Chapter B3 of the Economic and Benefits Analysis (EBA) in
support of this final rule (DCN 6-0002).
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\45\ See 118 CONG. REC 33,762 (1972), reprinted in 1 Legislative
History of the Water Pollution Control Act Amendments of 1972, at
264 (1973) (Statement of Representative Don H. Clausen).
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EPA believes that the requirements of this rule reflect the best
technology available at an economically practicable cost. EPA examined
the effects of the rule's compliance costs on capacity, generation,
variable production costs, prices, net income, and other measures, both
at the market and facility levels. In addition, the other economic
analyses conducted by EPA showed that the costs for this rule are
economically practicable.
However, EPA believes that a consideration of the relationship of
costs to environmental benefits is an important component of economic
practicability. As discussed in section VIII.C of the proposed Phase I
rule (65 FR 49094) EPA has long recognized that there should be some
reasonable relationship between the cost of cooling water intake
structure control technology and the environmental benefits associated
with its use. As the preamble to the 1976 final rule implementing
section 316(b) stated, neither the statute nor the legislative history
requires a formal or informal cost-benefit assessment (41 FR 17387;
April 26, 1976).
E. What Were the Major Options Considered for the Final Rule and Why
Did EPA Reject Them?
EPA considered a number of options for determining the best
technology available to minimize adverse environmental impact at Phase
II existing facilities and assessed these options based on overall
efficacy, availability, economic practicability, including economic
impact and the relationship of costs with benefits, and non-water
quality environmental impacts, including energy impacts. Under the
options EPA considered, facilities would be allowed to implement
restoration measures to meet the performance standards. Similarly, any
options considered also would allow facilities to request alternative,
less stringent, requirements if the Director had determined that data
specific to the facility indicated that compliance with the relevant
requirement would result in compliance costs significantly greater than
those EPA considered in establishing the applicable requirement, or
compliance costs significantly greater than the benefits of complying
with the applicable performance standards. The alternative requirements
would 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 also considered several site-specific approaches to
establishing best technology available. These include the site-specific
sample rule discussed at 67 FR 17159, an alternative based on EPA's
1977 Draft Guidance, and alternatives suggested by the Utility Water
Act Group (UWAG) and Public Service Electric and Gas Company (PSEG),
respectively (see 67 FR 17162). EPA's reasons for not adopting these
site specific alternatives are discussed in section VII.E.5 of this
preamble. The five major technology options EPA considered but did not
select for the final rule are discussed in greater detail in the next
section. Finally, the costs and benefits presented below are those
developed at proposal because these estimates are most useful for
purposes of comparison. Subsequent analyses, such as those presented in
the NODA, have resulted in higher cost estimates in general, but did
not alter the relative ranking of these options as EPA made
determinations regarding the final rule. Rather, these analyses
indicated that the costs for options that would have required more
extensive retrofitting efforts than the final rule are even higher
relative to the costs of the final
[[Page 41605]]
rule than they were estimated to be at proposal.
1. Intake Capacity Commensurate With Closed-Cycle, Recirculating
Cooling System for All Facilities
EPA considered a regulatory option that would have required Phase
II existing facilities with 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; or regarding
migratory, sport or commercial species of concern) would have had to
select and implement additional design and construction technologies to
minimize impingement mortality and entrainment. This option would not
have distinguished between facilities on the basis of the waterbody
type from which they withdraw cooling water. Rather, it would have
required that the same stringent controls be the nationally applicable
minimum for all waterbody types. This is the basic regulatory approach
EPA adopted for new facilities at 40 CFR 125.80.
EPA did not select a regulatory scheme based on the use of closed-
cycle, recirculating cooling systems at existing facilities based on
its generally high costs (due to conversions), the fact that other
technologies approach the performance of this option, concerns for
energy impacts due to retrofitting existing facilities, and other
considerations. Although closed-cycle, recirculating cooling water
systems serve as the basis for requirements applied to Phase I new
facilities, for Phase II existing facilities, a national requirement to
retrofit existing systems is not the most cost-effective approach and
at many existing facilities, retrofits may be impossible or not
economically practicable. EPA estimates that the total capital costs
for individual high-flow plants (i.e., greater than 2 billion gallons
per day) to convert to wet towers generally ranged from $130 to $200
million, with annual operating costs in the range of $4 to $20 million
(see TDD; DCN 6-0004). For purposes of general comparison, EPA
estimated that capital and installation costs for cooling towers under
the Phase I rule would range from approximately $170,000 to $12.6
million per plant (annualized), depending on flow. At proposal, EPA
estimated that the total social cost of compliance for this option for
Phase II existing facilities would be approximately $3.5 billion per
year.
It is significant to note, however, that EPA's estimates did not
fully incorporate costs associated with acquiring land needed for
cooling towers and, therefore, these estimates may not fully reflect
the costs of the option. For example, based on a survey conducted by
one industry commenter, EPA learned that 31 out of 56 plants surveyed
said that they would need to acquire additional property to accommodate
cooling towers, if required by today's rule. EPA recognizes that this
could be a significant cost. EPA also recognizes that there may be
impediments, irrespective of costs, to acquiring land for cooling
towers. Land upon which to construct cooling towers may be difficult or
impossible to obtain, especially in urban areas; some facilities might
even turn to displacement of wetlands as a solution. The Agency did not
include these potential costs in its analysis for the NODA or proposal.
In contrast to new facilities, which can take into account the Phase I
requirements when choosing where to situate their structures (including
cooling towers), existing facilities have far less flexibility and
incur far greater costs. EPA believes that this is a special problem
for existing facilities that is relevant to determining whether, as a
national categorical matter, closed-cycle cooling is the best
technology available for existing facilities for minimizing adverse
environmental impacts associated with cooling water intake structures.
EPA received retrofit cost estimates from a number of commenters that
indicate that such costs could be at least twice those projected by
EPA.
Another issue concerns the energy impacts of cooling towers. EPA
examined the information it received after publication of the proposed
rule and NODA, and agrees that the energy penalty associated with
cooling towers, together with other factors, indicates that this
technology is not the best technology available for existing facilities
for minimizing adverse environmental impacts associated with cooling
water intake structures. In reaching this conclusion, EPA relied on
energy penalty information provided by the U.S. Department of Energy.
EPA worked closely with the U.S. Department of Energy in preparing
today's rule because of their expertise in power plant operations and
engineering. The U.S. Department of Energy pointed out to EPA that
existing fossil-fuel facilities converting from once-through cooling
water systems to wet-cooling towers would produce 2.4 percent to 4.0
percent less electricity even while burning the same amount of coal.
For at least one nuclear power plant, which provides 78% of the
electricity consumed by the State of Vermont, the energy penalty
associated with converting to cooling towers was estimated to be 5.3
percent. Expressed differently, DOE estimated that nationally, on
average 20 additional 400-MW plants might have to be built to replace
the generating capacity lost by replacing once-through cooling systems
with wet cooling towers if such towers were required by all Phase II
facilities.
This energy penalty leads to other negative consequences. Because
this deficit is predicted to occur during the summer months (when
energy demand is highest), the net effect would be more consumption of
fossil fuel, which in turn increases the emission of sulfur dioxide,
NOX, particulate matter, mercury and carbon dioxide.
Increasing fuel consumption at existing coal power plants yields the
largest increase in air emissions because existing systems are less
efficient at producing power (and therefore burn more coal) and because
they generally have less air pollution control equipment in place. EPA
believes that it is reasonable to consider these non-water quality
environmental impacts and the additional costs associated with
controlling these increased emissions in making today's decision. EPA
further believes that it is authorized to do so because of the links
between Sec. 316(b) and sections 301 and 306, which require EPA to
consider both the energy impacts and the air pollution impacts of
technologies when identifying technologies in the effluent guidelines
context. See CWA section 304(b)(2)(B) (cross-referenced in Sec. 301);
CWA section 306(b)(1)(B) (new source performance standards).
Some commenters also assert that EPA underestimated the down time
that the facility would experience as it converts to cooling towers.
This, again, is not an impact that would be experienced by new
facilities. EPA agrees that such down time can be significant. Indeed,
one of the four retrofit case studies EPA developed indicated a down
time of 10 months, and EPA believes it is reasonable to infer that many
other facilities would experience the same loss.
EPA also agrees with the commenters who assert that the empirical
data base of four retrofit cases to which EPA compared cooling tower
retrofit costs and engineering characteristics is not representative of
the broader population of facilities and could be too narrow a set from
which to develop national costs that would be applicable to a wide
range
[[Page 41606]]
of facilities. Of the four retrofits EPA studied, two were in a single
state (South Carolina), none were located along a coast, and only one
generated more than 500 MW of electricity. EPA also recognizes that all
of these conversions were performed before 1992. While it is true that
the vast majority of the new, greenfield utility and non-utility
combined cycle plants built in the past 20 years have wet cooling
towers, EPA believes that it is significant that so few existing
facilities retrofitted to the technology during the same period. The
rarity of this technology as a retrofit further indicates that it is
not economically practicable for the vast majority of existing
facilities.
EPA also considered several additional points made by commenters in
rejecting this option. Some commenters asserted that certain facilities
with closed-cycle, recirculating cooling systems often need to address
the impacts of cooling tower plumes, and subsequent fog and icing in
metropolitan areas, and noise abatement. Commenters also asserted that
the costs of retrofitting and operating such systems at facilities
which do not now have them is disproportionate to the potential
benefits derived, particularly given the similarity in the level of
protection provided under this option (all facilities required to
reduce flow commensurate with a closed-cycle, recirculating system) and
the final rule. Finally, they stated that the need for flexibility in a
rule pertaining to existing facilities is critical to allow facility
owners a range of options to meet the fish protection requirements. EPA
does not agree that in all cases the costs of retrofitting a closed-
cycle cooling water system is disproportionate to the benefits derived.
Nevertheless, EPA recognizes that these concerns have merit for many
facilities and that the validity and extent of such concerns often must
be assessed on a case-by-case basis.
Each of these factors has a cost and an economic impact that EPA
believes is appropriate to consider when evaluating whether cooling
towers are the best technology available for existing facilities for
minimizing adverse environmental impacts associated with cooling water
intake structures. The capital costs estimated by EPA at proposal are
already very high; when costs reflecting reasonable changes to EPA's
assumptions are added to them, the total capital cost investment and
associated economic impact is simply too high at this time for EPA to
be able to justify selecting cooling towers as a required technology
for all existing Phase II facilities.
EPA further compared the efficacy of closed-cycle, recirculating
cooling systems with that estimated for design and construction
technologies. Although not identical, the ranges of impingement and
entrainment reduction are similar under both options, such that the
reductions estimated for the design and construction technologies,
particularly when optimized, approach those estimated for closed-cycle,
recirculating cooling systems. Therefore, the use of design and
construction technologies as the basis for this rule is supported since
they can approach closed-cycle, recirculating systems at less cost with
fewer implementation problems. EPA considered this similarity in
efficacy, along with the economic practicability and availability of
each type of technology, in determining that a closed-cycle,
recirculating cooling system is not the required technology for all
Phase II existing facilities.
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 have been required
for all facilities on certain waterbody types. Under this option, EPA
would have grouped waterbodies into the same five categories as in
today's rule: (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 finfish, including many
species that are subject to intensive fishing pressures, these
waterbody types would have required 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 Phase I 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 today's final rule, only
be required to have impingement control technology. Facilities that
have a closed-cycle, recirculating cooling system would have required
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 had the same requirements as under today's final
rule. If a facility for which closed-cycle recirculating technology was
required chose to comply with alternative requirements, then the
facility would have had 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 had to
demonstrate the same or substantially similar level of protection. (For
additional discussion see the Phase I final rule 66 FR 65256, at 65315
columns 1 and 2.)
At proposal, EPA estimated that there would be 109 \46\ facilities
located on oceans, estuaries, or tidal rivers that do not have a
closed-cycle, recirculating cooling system and would need to reduce
intake flow to a level commensurate with that which can be attained by
a closed-cycle, recirculating cooling system or upgrade design and
construction technology (e.g., screens) in order to meet performance
standards for reducing impingement mortality and entrainment.
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\46\ Sample-weighted.
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Although EPA estimated the costs of this option to be less
expensive at the national level than an option based on closed-cycle,
recirculating cooling systems everywhere, EPA did not select this
option based on total social costs estimates of greater than $1 billion
per year and its lack of cost-effectiveness, as well as on concerns
regarding potential energy impacts. 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
regions, EPA is concerned that there is
[[Page 41607]]
the potential for short term energy impacts and supply disruptions in
these areas if multiple facilities retrofit concurrently or over a
relatively short time-frame, as would be required by these regulations.
3. Intake Capacity Commensurate With Closed-Cycle, Recirculating
Cooling System Based on Waterbody Type and Proportion of Waterbody Flow
EPA also considered a variation on the above approach that would
have required 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 had to meet standards for
reducing impingement mortality and entrainment based on the performance
of wet cooling towers. These facilities would instead have had the
choice of reducing cooling water intake flow to a level commensurate
with wet cooling towers or of using alternative technologies to meet
reduction standards based on the performance of wet cooling towers. If
a facility on a tidal river or estuary had intake flow equal to or less
than 1 percent of the source water tidal excursion, the facility would
have only had to meet the same impingement and entrainment performance
standards as in the final Phase II rule. These standards were developed
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 have also applied to a facility that has a cooling
water intake structure located in an ocean with an intake flow greater
than 500 MGD.
This option also would impose much higher costs on a subset of
facilities than the final rule. Based on an analysis of data collected
through the detailed industry questionnaire and the short technical
questionnaire, at proposal, EPA estimated there were potentially 109
Phase II existing facilities located on estuaries, tidal rivers, or
oceans which would incur capital costs under this option. Of these 109
facilities, EPA estimated 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 \47\ 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 \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.
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\47\ Not sample-weighted.
\48\ Not sample-weighted.
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At proposal, EPA estimated the total social cost of compliance for
the waterbody/capacity-based option to be approximately $0.97 billion
per year. EPA did not select this option because it was not determined
to be the most cost-effective approach on a national basis. While the
national costs of this option are slightly 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 are still substantial. Although EPA
would provide an opportunity to seek alternative requirements to
address locally significant air quality or energy impacts, EPA does not
believe a framework such as this provides sufficient flexibility to
ensure effective implementation and to minimize non-water quality
(including energy) impacts. In addition, as noted above for the other
cooling tower based options that EPA rejected, facilities can achieve
almost the same level of impingement mortality and entrainment
reductions using the technologies on which this final rule is based as
they can using cooling towers, but at substantially lower cost.
4. Impingement Mortality and Entrainment Controls Everywhere
At proposal, EPA evaluated an option that required impingement
mortality and entrainment controls for all facilities. This option did
not allow for the development of best technology available on a site-
specific basis. This alternative based requirements on the percent of
source water withdrawn and, like today's final rule, also restricted
disruption of the natural thermal stratification of lakes or
reservoirs. It also imposed entrainment performance requirements on
Phase II existing facilities located on freshwater rivers or streams,
and lakes or reservoirs where EPA has determined in today's final rule
that such controls are not necessary. 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 option established clear performance-based requirements that
were 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). However,
as indicated above, this option lacks the flexibility of the final rule
in applying the necessary and appropriate available technology and
therefore would be less effective in addressing the specific cooling
water intake structure impacts posed by Phase II facilities in their
various environmental settings.
At proposal, total social cost of compliance for this option was
estimated at approximately $300 million per year. EPA did not select
this option because other options were more cost-effective, in part
because this option requires entrainment controls in freshwater rivers,
streams, and lakes. The benefits of the final rule are almost the same
as those for this option but a lower cost (since lakes and reservoirs,
and for design intake flows below 5% in freshwater rivers and streams
are the least likely to provide significant benefits).
5. Site-Specific Options as Best Technology Available To Minimize
Adverse Environmental Impact
In the proposed rule EPA also considered several site-specific
approaches to establishing best technology available. These include the
site-specific sample rule discussed at 67 FR 17159, an alternative
based on EPA's 1977 Draft Guidance (67 FR 17161), and alternatives
suggested by UWAG and PSEG, respectively (see 67 FR 17162).
EPA did not adopt any of these site-specific regulatory options for
several reasons. None of these site-specific approaches would have
established national performance standards for best technology
available to minimize adverse environmental impact. EPA believes that
such national performance standards promote the consistent application
of the best technology available to minimize adverse environmental
impact. In addition, based on contact with States (see Phase I NODA, 66
FR 28865, Phase II proposal 67 FR 17152-3) and anecdotal
[[Page 41608]]
information \49\ EPA believes that each of these site-specific options
would have resulted in higher administrative burdens being imposed on
applicants and permit writers relative to the final rule. As EPA has
discussed in the preamble to the proposal (see 67 FR 17167), these
administrative burdens can be associated with the need to determine in
each case whether adverse impacts are occurring, the nature and level
of any such impacts, and which design and construction technologies
constitute the best technology available to minimize adverse
environmental impacts, including a consideration of costs and benefits.
Further, all of the proposed site-specific options increase the
likelihood that each significant cooling water intake permitting issue
would become a point of contention between the applicant and permit
writer, which EPA's experience indicates slows the permitting process,
makes it more resource intensive, and makes it more costly. Finally,
because the final rule provides facilities with the option of selecting
from five compliance alternatives, including a site-specific compliance
alternative, the final rule provides facilities with flexibility
comparable to that of a site-specific rule. The site-specific
alternative in the final rule provides clear standards for eligibility
(the cost-cost and cost-benefit tests), and clear standards on which to
base the alternative requirements that they achieve an efficacy as
close as practicable to the national performance standards without
exceeding the cost-test or benefits-test thresholds. EPA believes that
structuring a site-specific compliance alternative in this way will
significantly reduce the potential areas of disagreement between permit
writer and applicant that are inherent in the other site-specific
approaches that it rejected, while still providing facilities with
appropriate flexibility. Through the multiple compliance alternatives
specified in this rule, EPA has sought to balance the statutory
requirements of section 316(b) and the need for reasonable limits on
the administrative burden imposed on both applicants and permit writers
against the need for existing facilities to have flexibility in
implementing the requirements.
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\49\ For example, a site-specific determination for Brayton
Point, Rhode Island, has required resources for greater than two
full time equivalents (FTEs) over three years for permitting and
support staff, as well as approximately $400,000 in contractor costs
to address technical issues and applicant experts. Similarly,
development of a permit for Salem has required resources for greater
than two full time equivalents (FTEs) over three years for
permitting and support staff, as well as approximately $340,000 in
contractor costs to address technical issues and applicant experts.
---------------------------------------------------------------------------
6. Flow Reduction Commensurate With the Level Achieved by Dry Cooling
Systems Based on Waterbody Type
EPA conducted a full analysis for the Phase I rule and concluded
that dry cooling was not an economically practicable option for new
facilities 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 Phase I 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 new
facilities having to install dry cooling. For the Phase II proposal,
EPA estimated that total social costs for dry cooling based on
waterbody type were $2.1 billion per year (or roughly double the costs
for wet towers). Thus, this option would be more expensive than dry
cooling for new facilities. The cost for Phase II existing facilities
to install dry cooling would be significantly higher than the cost for
new facilities to do so due to the complexities of retrofitting both
the dry cooling equipment and components of the cooling system. At
proposal, EPA estimated that 550 Phase II existing facilities would be
subject to Phase II regulation. 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 United States would be at an unfair competitive
disadvantage compared to those in cooler northern climates because dry
cooling systems operate more efficiently in colder climates. Even under
a regional subcategorization strategy for facilities in cool climatic
regions of the United States, adoption of a minimum requirement based
on dry cooling would likely impose unfair competitive restrictions for
steam electric power generating facilities because of 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.
As explained in the preamble to the proposal, EPA does not consider
performance standards based on dry cooling a reasonable option for a
national requirement, nor for subcategorization under this rule,
because the technology of dry cooling carries costs that would
potentially cause significant closures for Phase II existing
facilities. Dry cooling technology would also have a significant
detrimental effect on electricity production by reducing the 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 a 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 (i.e., energy penalty) 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, it is not economically practicable for
existing facilities and would cause additional adverse environmental
impacts and serious energy impacts. Although dry cooling technology
uses extremely low-
[[Page 41609]]
level or no cooling water intake, thereby reducing impingement and
entrainment of organisms to extremely low levels, section 316(b) does
not require that adverse environmental impact be completely eliminated,
but that it be minimized using the best technology available. (DOE
energy penalty study; DCN 4-2512). EPA does not believe that dry
cooling technology is ``available'' to most Phase II existing
facilities.
Although EPA has rejected dry and wet cooling tower technologies as
a national minimum requirement, EPA does not intend to restrict the use
of these technologies or to dispute that they 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.
This technology may be especially appropriate in situations where
access to cooling water is limited. Wet cooling tower technology may be
suitable where adverse effects of cooling water intakes are severe and
where screening systems are impractical, or where thermal discharge
impacts pose serious environmental problems. Under Clean Water Act
section 510, a State may choose to impose more stringent standards than
required by Federal regulations. States may continue to use this
authority to require facilities to use dry or wet cooling systems.
F. What Is the Role of Restoration and Trading Under Today's Final
Rule?
1. What Is the Role of Restoration?
EPA is providing facilities with the option to use restoration for
compliance alternatives Sec. 125.94(a)(2), (3), and (5) where the
performance of the restoration measures (the production and increase of
fish and shellfish in the facility's waterbody or watershed, including
maintenance of community structure and function), is substantially
similar to that which would have been achieved if the facility reduced
impingement mortality and entrainment through the use of design and
construction technologies and/or operational measures, to meet the
applicable performance standards. (For a complete discussion of the
legal analysis supporting restoration, see section VIII of this
preamble.) The role of restoration under this rule is to provide
additional flexibility to facilities in complying with the rule by
eliminating or significantly offsetting the adverse environmental
impact caused by the operation of a cooling water intake structure.
Restoration measures that increase fish and shellfish in an impacted
waterbody or watershed and result in performance substantially similar
to that which would otherwise be achieved through reductions in
impingement mortality and entrainment further the goal of minimizing
adverse environmental impact while offering additional flexibility to
both permitting authorities and facilities. Restoration measures may
include such activities as removal of barriers to fish migration,
reclamation of degraded aquatic organism habitat, or stocking of
aquatic organisms. These are still technologies, within the meaning of
that term as used in section 316(b) and as such are an appropriate
means for meeting technology based performance standards. They are not
analogous to water quality based effluent limitations on pollutant
discharges because they are not designed to meet water quality
standards or dependent on the condition of the receiving waterbody.
Rather, they provide an additional means to meet the same performance
standards that guide the selection of design and construction
technologies and operational measures.
Restoration measures have been used at existing facilities as one
of many tools to implement section 316(b) on a case-by-case, best
professional judgment basis to compensate for the death and injury of
fish and other aquatic organisms caused by the cooling water intake
structure. Under today's rule, a Phase II existing facility may utilize
restoration either in lieu of or as a supplement to design and
construction technologies and/or operational measures. For example, a
facility may demonstrate to the Director that velocity controls are the
most feasible technology choice for the facility but that, when used on
their own, the velocity controls are insufficient to meet the
applicable performance standards at Sec. 125.94(b). The facility may
then, in conjunction with the use of velocity controls, implement
restoration measures to increase the fish and shellfish productivity of
the waterbody in order to meet the performance standards at Sec.
125.94(b). Another facility might demonstrate to the Director that
restoration measures alone achieve the greatest compliance with the
performance standards. A facility may alternatively request a site-
specific determination of best technology available under Sec.
125.94(a)(5) and use restoration measures to meet the alternate
requirements.
Facilities that propose to use restoration measures must
demonstrate to the Director that they evaluated the use of design and
construction technologies and operational measures and determined that
the use of restoration measures is appropriate because meeting the
applicable performance standards or requirements through the use of
other technologies is less feasible, less cost-effective, or less
environmentally desirable than meeting the standards in whole or in
part through the use of restoration measures. Facilities must also
demonstrate that the restoration measures they plan to implement,
alone, or in combination with design and construction technologies and/
or operational measures, will produce ecological benefits (production
of fish and shellfish) at a level that is substantially similar to the
level that would be achieved through compliance with the applicable
impingement mortality and/or entrainment performance standards under
Sec. 125.94(b), or alternative site-specific requirements under Sec.
125.94(a)(5). In other words, restoration measures must replace the
fish and shellfish lost to impingement mortality and entrainment,
either as a substitute or as a supplement to reducing impingement
mortality and entrainment through design and control technologies and/
or operational measures. While the species makeup of the replacement
fish and shellfish may not be exactly the same as that of the
impingement mortality and entrainment losses, the Director must make a
determination that the net effect is to produce a level of fish and
shellfish in the waterbody that is ``substantially similar'' to that
which would result from meeting the performance standards through
design and construction technologies and/or operational measures alone.
The final rule requires that a facility use an adaptive management
method for implementing restoration measures because the performance of
restoration projects must be regularly monitored and potentially
adjusted to ensure the projects achieve their objectives (see 67 FR
17146-17148 and 68 FR 13542).
The final rule also requires that restoration projects which
replace the lost fish and shellfish with a different species mix (``out
of kind'' restoration) be based on a watershed approach to restoration
planning. The boundaries of a ``watershed'' should be guided by the
cataloging unit of the ``Hydrologic Unit Map of the United States''
(USGS, 1980), although it may be appropriate to use another watershed
or waterbody classification system developed at the state or local
level if such a system compares favorably in level of detail. For
example, in coastal systems that support migratory fish, a coastal
[[Page 41610]]
waterbody that transects a number of watersheds may be the most
appropriate unit for planning restoration.
2. What Is the Role of Trading in Today's Rule?
In Sec. 125.90(c), today's final rule provides that if a State
demonstrates to the Administrator that it has adopted alternative
regulatory requirements in its NPDES program 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 must
approve such alternative requirements. A trading program could be a
part of these alternative regulatory requirements.
At proposal, EPA sought comment on the potential role of trading in
the context of the section 316(b) Phase II rulemaking and possible
approaches for developing a trading program. Trading under other EPA
programs has been shown to provide opportunities for regulatory
compliance at reduced costs. The EPA Office of Water's Water Quality
Trading Policy, published in January 2003 [DCN 6-5002], fully supports
trading nutrients and sediment and adopts a case-by case approach to
evaluating proposals to trade other pollutants.
Trading in the context of section 316(b) raises many complex
issues, for example, how to establish appropriate units of trade and
how to measure these units effectively given the dynamic nature of the
populations of aquatic organisms subject to impingement mortality and
entrainment. Should a State choose to propose a trading program under
Sec. 125.90(c), EPA will evaluate the State's proposal on a case-by-
case basis to ensure the program complies with the regulatory
requirement--that it 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 the requirements
established at Sec. 125.94. Some commenters suggested that EPA adopt a
trading program that would allow trading between aquatic organisms and
pollutant discharges. EPA is concerned that such a program would
introduce comparability and implementation challenges that would be
difficult to overcome and therefore, EPA does not expect that such a
program would work within the framework of today's final rule. In
addition, EPA does not believe that it is possible at this time to
quantify with adequate certainty the potential effects on ecosystem
function, community structure, biodiversity, and genetic diversity of
such trades, especially when threatened and/or endangered species are
present. Based on the current state of the science in aquatic community
ecology and ecological risk assessment, States wishing to develop
trading programs within the context of 316(b) would be best off
focusing on programs based on metrics of comparability between fish and
shellfish gains and losses among trading facilities, rather than the
much more complex metrics that would be necessary for comparability
among fish and shellfish losses on the one hand, and pollutant
reductions on the other.
VIII. Summary of Major Comments and Responses to the Proposed Rule and
Notice of Data Availability (NODA)
A. Scope and Applicability
1. Phase II Existing Facility Definition
Numerous commenters supported limiting the scope of the Phase II
rule to existing facilities that generate and transmit electric power,
or generate and sell such power to another entity for transmission, but
suggested that EPA has not sufficiently limited the rule to only these
facilities. Commenters noted that the proposed definition of ``Phase II
existing facility'' does not adequately exempt existing manufacturing
facilities that may occasionally transfer power off-site during peak
load events. Some commenters suggested that EPA clarify the Phase II
rule to specify that it does not apply to facilities whose primary
business is not power generation. Some suggested limiting applicability
to specified SIC codes (e.g., provided that the rule only applies to
facilities in SIC 4911). Examples of facilities identified by
commenters that they believe should be excluded from Phase II include
manufacturers that produce electricity by co-generation, power
generating units that predominantly support a manufacturer, e.g., iron
and steel, but also export some power, and facilities that generate
power for internal use.
Commenters requested that EPA further clarify when repowering is
subject to existing facility requirements. For example, some commenters
viewed as inconsistent the fact that the addition of a generating unit
at an existing single unit site could increase intake flows by 100% and
meet the existing facility definition, while a replacement facility
that increases intake flows by a much lesser amount (e.g., 25%) would
not meet the existing facility definition. These commenters suggested
that EPA consider a facility as an existing facility unless changes to
the facility result in new environmental impacts.
In Sec. 125.91(a)(3) of today's rule, an existing facility is
subject to this rule if its primary activity is either to generate and
transmit electric power, or to generate electric power that it sells to
another entity for transmission. This provision was included in the
rule in response to comments such as those described previously in this
section. EPA believes that this criterion--the primary activity being
the generation of electric power--sufficiently clarifies and limits the
scope of this rule to existing facilities whose primary business is
power generation. As discussed in Section II of this preamble, the
final rule does not apply to existing manufacturing facilities,
including manufacturing facilities that generate power for their own
use and transmit any surplus power, or sell it for transmission,
provided the primary activity of the facility is not electric power
generation. For example, in the case of a facility that operates its
own power generating units and such units predominantly support that
facility's manufacturing operation, its primary activity remains
manufacturing, even if the facility exports some power. Whether a
facility's primary activity is to generate electric power will need to
be determined on a case-by-case basis. Section II also makes clear that
a manufacturing facility is not covered by this final rule just because
it is co-located with another Phase II facility.
EPA considered specifying SIC or NAIC codes to clarify the scope of
the rule beyond that proposed in Sec. 125.91(a)(3), but did not do so
because it believes the changes in the final rule are sufficient to
address many issues raised in comments and because of concerns that SIC
and NAIC codes may change over time, which could unintentionally alter
the scope of the rule.
With regard to repowering, section II of today's notice discusses
the scope of the final rule and specifically discusses the repowering
issue. Section II also addresses other Phase I versus Phase II
classification issues.
2. Thresholds
Some commenters supported use of the 50 MGD design intake flow
threshold and the 25 percent cooling water use criteria in Sec.
125.91(a)(2) and (4), respectively. Some suggested that facilities
agreeing to limit their actual intake to less than 50 MGD should be
excluded from the rule's requirements or be allowed to request an
exemption. Other commenters maintained that permitted or actual flows
should be used rather than design flows. Some commenters asked that EPA
clarify that,
[[Page 41611]]
when applicable, the lesser design value of an intake facility and
conveyance structure versus the design volume of intake pumps should be
used to determine the 50 MGD threshold for applicability.
Alternatively, others asserted that EPA should provide guidance that a
facility's design intake flow is not necessarily the flow associated
with that of the intake pumps.
Several commenters stated that emergency cooling water and
emergency service water intakes should be exempt from the 50 MGD design
intake flow threshold. These commenters recommended that EPA
distinguish between primary cooling water intakes and emergency service
water intakes, for example, at nuclear facilities. They reasoned that
emergency service water systems, which can have a large design capacity
(i.e., design capacity greater than 50 MGD), generally use an intake
that normally operates a nominal amount of time to ensure that the
system is in working order. Such back-up systems are required for
safety, but under normal conditions do not increase the operational
capacity of the facility. Thus, these commenters maintain that rarely
used emergency service water should not count towards 50 MGD.
With regard to the criterion that a Phase II existing facility must
use at least 25 percent of the water it withdraws exclusively for
cooling, some commenters indicated that proposed Sec. 125.91(d), which
describes how to measure whether 25 percent of water withdrawn is used
for cooling, was ambiguous. Commenters asserted that EPA should not
require monthly determinations of applicability of the Phase II rule.
One commenter suggested that EPA should assess the 25 percent cooling
water use on an annual basis calculated once during permit renewal,
since such an approach would provide a high degree of certainty.
As discussed in the proposed rule (67 FR 17129-17130), EPA chose
the design intake flow 50 MGD threshold to focus on the largest
existing power generating facilities, which the Agency believes are
those with the greatest potential to cause or contribute to adverse
environmental impact. EPA estimates that the 50 MGD threshold would
subject approximately 543 of 902 (60 percent) of existing power
generating facilities to this rule and would address 90 percent of the
total flow withdrawn by existing steam electric power generating
facilities. The 25 percent threshold ensures that nearly all cooling
water and the most significant facilities using cooling water intake
structures are addressed by these requirements. EPA notes that Phase II
existing facilities, which are limited to facilities whose primary
activity is power generation, typically use far more than 25 percent of
the water they withdraw for cooling. Yet, as in the new facility rule,
cooling water that is used in a manufacturing process either before or
after it is used for cooling would not count towards calculating the
percentage of a facility's intake flow that is used for cooling
purposes.
EPA has retained in the final rule the 50 MGD threshold based on
design intake flow, rather than actual flow, for several reasons.
Design intake flow is a fixed value based on the design of the
facility's operating system and the capacity of the circulating and
other water intake pumps employed at the facility. This approach
provides clarity--the design intake flow does not change, except in
those limited circumstances when a facility undergoes major
modifications or expansion, whereas actual flows can vary significantly
over sometimes short periods of time. EPA believes that an uncertain
regulatory status is undesirable because it impedes both compliance by
the permittee and regulatory oversight, as well as achievement of the
overall environmental objectives. Further, using actual flow may result
in the NPDES permit being more intrusive to facility operation than
necessary since facility flow would be a permit condition and
adjustments to flow would have to be permissible under such conditions
and applicable NPDES procedures. It also would require additional
monitoring to confirm a facility's status, which imposes additional
costs and information collection burdens, and it would require
additional compliance monitoring and inspection methods and evaluation
criteria, focusing on operational aspects of a facility.
With regard to intake versus pump capacity, EPA notes that under
Sec. 125.93 of the final rule, design intake flow means the value
assigned (during the cooling water intake structure design) to the
total volume of water withdrawn from a source waterbody over a specific
time period. Because numerous aspects of a cooling water intake or
system can limit a facility's intake flow, and because flow is a
critical factor that affects the impacts posed by each facility's
cooling water intake structures, EPA has determined that it is more
appropriate for the final rule to focus on a facility's total designed
volume of water withdrawn over a period of time, rather than to
condition applicability of the rule on more specific parameters, such
as intake capacity or pump design, which individually do not fully
determine total design intake flow.
The final rule does not explicitly exclude emergency cooling water
and emergency service water intakes from consideration in determining
which facilities are in-scope. Although EPA does not have detailed data
on emergency cooling water and emergency intakes, based on other
available data EPA does not believe that including consideration of
emergency intakes within this rule significantly alters the scope of
the rule. EPA's survey of all existing electric utilities and non-
utilities indicated that 84 percent of surveyed facilities have an
average flow that equals or exceeds 50 MGD. These facilities would by
necessity have a design intake flow that also equals or exceeds 50 MGD.
Moreover, EPA assumes that this average flow data represent normal
operating conditions and does not include emergency cooling water use.
Consequently, EPA believes that relatively few facilities are
potentially affected by this issue.
Finally, Sec. 125.91(a)(4), which describes how a facility must
determine whether it meets the 25 percent cooling water use criterion
has been changed in the final rule and provides that the percent of
cooling water used be measured on an average annual basis. EPA believes
this approach is more appropriate than making this determination on an
average monthly basis, primarily because the annual average is an
easier measurement to make. Furthermore, because all Phase II existing
facilities generate power, most of the water will be used for cooling,
rendering monthly evaluation of this value unnecessary. The final rule
does not specify how often the facility must measure flow for this
annual average. The facility is encouraged to consult the Permit
Director to determine what level of data collection is needed.
B. Environmental Impact Associated With Cooling Water Intake Structures
Many comments addressed adverse environmental impact, questioning
the definition and quantification of adverse environmental impacts.
Several suggested defining adverse environmental impact exclusively at
the population, community, or ecosystem levels, and believe that
numbers of impinged and entrained organisms should not be a measure of
adverse environmental impact. Some commenters argued that, if a
facility can prove it does not cause adverse environmental impact at
the population level, then it should be exempt from section 316(b)
regulations. Commenters
[[Page 41612]]
cited numerous studies to illustrate whether cooling water intake
structures cause adverse environmental impacts and claimed that where
abundance or biomass falls, it was usually the result of some other
stressor (overfishing, pollution, etc). These commenters asserted that
populations are able to thrive despite high rates of impingement and
entrainment because of density-dependence and compensation.
Numerous other commenters disagreed with limiting the definition of
adverse environmental impact to the population, community or ecosystem
levels, and contended that any measure of impingement and entrainment
constitutes adverse environmental impact. They asserted that power
plants contribute to fish kills directly by impingement and
entrainment, and indirectly by habitat loss. These commenters
maintained that the results of population or ecosystem studies are
highly subjective, and have no place in determining BTA, as once such
impact levels are reached, recovery is often impossible. Regardless of
the severity of adverse environmental impact, these commenters argued
that section 316(b) requires minimization of adverse environmental
impact. They maintained that cooling water intake structures contribute
to fishery collapse and vast reductions in fish biomass and abundance
that are measurable at the species level. These commenters suggested
that actual national impacts due to cooling water intake structures are
vastly underestimated due to poor data collection methodologies
utilized when the majority of the studies were performed and because
studies performed on impinged and entrained organisms overlooked the
vast majority of affected species.
In today's final rule, EPA has elected not to define adverse
environmental impact. EPA believes that it is reasonable to interpret
adverse environmental impact as the loss of aquatic organisms due to
impingement and entrainment. For a further discussion of this issue,
see Section IV above.
With regard to the relationship between intake flow and adverse
environmental impact, some commenters asserted that the relationship of
impingement and entrainment to flow is such that catch rates increase
non-linearly (exponentially) in relation to the volume of water
withdrawn, with entrainment rates being more strongly correlated to
flow than impingement. Environmental commenters advocated for flow
reduction technologies, such as retrofitting closed-cycle cooling
technologies, as the most direct means of reducing fish kills from
power plant intakes; they assert that reducing intake by up to 98 to 99
percent would result in a similarly high reduction of impinged and
entrained organisms. Other commenters insisted that there is no
statistically significant relationship between catch rate and flow, and
the mathematical models that evaluate this relationship are inaccurate.
EPA believes the record contains ample evidence to support the
proposition that entrainment is related to flow (see DCN 2-013L-R15 and
2-013J) while impingement is related to a combination of flow, intake
velocity and fish swim speed (see DCN 2-029). Larger withdrawals of
water may result in commensurately greater levels of entrainment.
Entrainment impacts of cooling water intake structures are closely
linked to the amount of water passing through the intake structure
because the eggs and larvae of some aquatic species are free-floating
and may be drawn with the flow of cooling water into an intake
structure. Swim speeds of affected species as well as intake velocity
must be taken into account to predict rates of impingement in relation
to flow in order to account for the ability of juvenile and adult
lifestages of species to avoid impingement. Due to this relationship,
EPA agrees that reducing intake by installing flow reduction
technologies will result in a similarly high reduction of impinged and
entrained organisms, but EPA believes that other technologies that do
not necessarily reduce flow but that do reduce the number of aquatic
organisms impinged and entrained will also minimize adverse
environmental impact associated with cooling water intake structures.
As such, today's rule provides for flexibility in meeting the
performance standards.
C. Performance Standards
The performance standards promulgated today are expressed as
reductions of impingement and entrainment measured against a
calculation baseline. The purpose of a calculation baseline is to
properly credit facilities that have installed control technologies
prior to the promulgation of the rule. EPA received numerous comments
on the performance standards and the calculation baseline.
1. Appropriate Standards
Many commenters discussed the appropriateness of the performance
standards. While many commenters acknowledged that the performance
range may be attained at some facilities (using certain technologies
and in appropriate conditions), several commenters stated that the
technical justification for the performance standards was insufficient
and may be biased towards higher performing examples of each
technology. Many commenters submitted that some technologies will
perform at some sites, but that no technology will meet the standards
at all sites. Another commenter supported the concept of the
performance standards, as long as sufficient flexibility was retained
through the use of restoration measures and cost tests. Some commenters
suggested allowing permit writers the flexibility to create site-
specific performance standards.
EPA has selected performance standards to facilitate a more
streamlined permitting process, and to provide consistent national
standards. EPA has chosen to express the targets by reference to a
percentage reduction in impingement and entrainment because, as
discussed above, these losses can easily be traced to cooling water
intake structures. Therefore, this is a convenient indicator of the
efficacy of controls in reducing environmental impact. As discussed in
more detail below, it is also a useful basis against which to consider
the efficacy of restoration technologies, which focus on the
replacement of fish and shellfish as an alternative means of minimizing
adverse environmental impact of intake structures.
Additional documentation has been collected and reviewed by EPA to
further support the percent reductions contained in the performance
standards. EPA has added this information to the Technology Efficacy
database (DCN 6-5000), which EPA has expanded to allow users to query
and compare basic data on technology performance and applicability. EPA
recognizes that some may disagree with basing the performance standards
on the wide range of data available in the database. While many
documents do show a level of success in reducing impingement mortality
or entrainment, other studies have shown the deployed technology to be
unsuccessful or at best inconclusive. EPA does not view the varying
degrees of success with regards to a specific technology as indicative
that the performance standards cannot be met, but rather as evidence
that some technologies work in some applications but not in others.
It is for this reason that performance standards, rather than
prescriptive technologies, were chosen. By opting for performance
standards instead of requiring the deployment of specified
technologies, EPA maintains a desired
[[Page 41613]]
flexibility in the implementation of the rule, thus allowing a facility
to select measures that are appropriate to the site conditions and
facility configuration. EPA believes that there are technologies
available (including restoration measures) that can be used to meet the
performance standards at the majority of facilities subject to the
final Phase II rule. EPA believes that it will likely be the
exceptional case where no technology or suite of technologies will be
able to achieve the performance standards. This is not to say, however,
that the technologies are always economically practicable to implement;
there may be situations where the costs are not justified and it is for
those situations that EPA has provided for site-specific determinations
of best available technology for minimizing adverse environmental
impact.
2. Application of the Performance Standards
Commenters generally noted that the application of the performance
standards would be very difficult, for a number of site-specific
reasons. Several commenters noted that the performance standards are
not sufficiently defined to make a full evaluation of their
applicability. For example, EPA has not defined the performance
standards as being measured using all species or selected species, or
by counting individuals versus measuring biomass. Some commenters noted
that each of the methods discussed by EPA could have merit at a given
facility, and that flexibility would be needed to evaluate compliance
at a variety of intake configurations. Another commenter further noted
that it is inappropriate for EPA to state that the performance
standards are achievable when the standards are undefined. One
commenter suggested that EPA has not shown that the performance
standards can be met at a reasonable cost. Other commenters stated that
reductions may be achievable for only some species of life stages and
that this approach may not account for natural fluctuations in
population. These commenters claim that implementing a uniform,
nationwide performance standard would be exceedingly complex and
subject to site-specific factors that could significantly affect the
performance of the control technology. Several commenters noted that,
for these reasons, EPA should strongly consider a site-specific
approach to implement 316(b), including a risk assessment-based
approach as suggested by one commenter.
A number of commenters stated that the performance standards would
be best implemented as a set of goals or as a best management practice.
These commenters contended that in view of the wide variety of
environmental conditions at facilities, including natural fluctuations
in populations, compliance with a national performance standard will be
difficult. They claimed that by using the standards as a goal instead
of a condition in the permit, a facility can have greater certainty as
to its compliance status. Similarly, several commenters suggested that
the permit contain conditions requiring proper technology selection,
installation, maintenance, and adjustments instead of requiring
compliance with the performance standards.
Commenters were divided over the concept of a range for the
performance standards. Some commenters supported the range, arguing
that a facility can achieve some reduction within the range and still
be compliant, and others were opposed, claiming that a range of
performance promotes uncertainty in determining compliance. Some
commenters also noted that, by giving a facility a range of
performance, EPA is encouraging performance in the lower end of the
range and therefore not meeting the definition of ``best technology
available.''
Several commenters noted that consideration of entrainment
mortality is important to correctly determine compliance. One commenter
also noted that natural events will affect compliance, such as moribund
fish being swept into an intake or heavy debris loads following a
storm.
As in the Phase I rule, EPA is setting performance standards for
minimizing adverse environmental impact based on a conceptually simple
and certain metric-reduction of impingement mortality and entrainment.
EPA recognizes however, that there are challenges associated with
measuring such reduction due to fluctuations in waterbody conditions
(species abundance, composition, etc.) over time. While it is
relatively straightforward to measure impingement mortality and
entrainment reductions relative to past levels, it is more difficult to
determine reductions relative to what would have occurred in the
absence of control technologies if waterbody conditions change after
the technologies are installed. Data provided with the proposed rule
(DCN 4-0003) indicate that there is substantial variability over time
in the numbers and species mix of impinged and entrained organisms at
any given facility. While changes in operational practices and sampling
methods account for some of this variability, the data indicate that
there may be substantial natural variability in waterbody conditions as
well. This natural variability and the changes to species composition
over time may affect the ability of these technologies to perform
consistently at a certain level. This is one reason why EPA has
provided a compliance determination alternative under which facilities
comply with the construction, operational, maintenance, monitoring, and
adaptive management requirements of a Technology Installation and
Operation Plan (or Restoration Plan) designed to meet the performance
standards, rather than having to demonstrate quantitatively that they
are consistently meeting them, which may be difficult in the face of
natural variability. Under this approach, if monitoring data suggest
that performance standards are not being met despite full compliance
with the terms of the Technology Installation and Operations Plan or
the Restoration Plan, the Plan will need to be adjusted to improve
performance.
EPA has provided examples of facilities in different areas of the
country sited on different waterbody types that are currently meeting
or exceeding the performance standards promulgated today. The ability
of these facilities to attain similar performance standards suggests
that while site-specific factors can influence the performance of a
given technology, it is the exceptional situation where no design or
construction technology is capable of meeting the performance
standards. EPA opted for performance ranges instead of specific
compliance thresholds to allow both the permittee and the permitting
authority a certain degree of flexibility in meeting the obligations
under the final Phase II rule. EPA does not believe that performance
ranges promote uncertainty. Instead, EPA has selected performance
ranges out of the recognition that precise results may not be able to
be replicated in different waterbody types in different areas of the
country. EPA disagrees with the comment that it has not shown that the
performance standards can be met at a reasonable cost. The cost and
economic impact analysis for the final rule supports EPA's
determination that the final rule, including the performance standards,
are economically practicable at a national level. In addition, the
final rule includes a site-specific compliance alternative to address
any potential situation where meeting the performance standards, when
evaluated on a facility-specific basis, would result in costs that are
significantly greater than the costs
[[Page 41614]]
considered by EPA, for a like facility in establishing the standards,
or that are significantly greater than the benefits of compliance with
the applicable performance standards at the facility. Thus, the final
rule ensures that the costs of the rule are economically practicable to
the extent required by section 316(b).
In developing the final rule, EPA identified and examined a broad
range of cooling water intake structure technologies and determined, at
a national level, that these technologies support the final performance
standards. EPA notes that, although the performance standards address
all life stages of fish and shellfish, the Director has significant
discretion as to how the performance standards are applied in the
permit. For example, the Director may determine that all species must
be considered or that only representative species are to be considered.
With regard to natural fluctuations in fish and shellfish populations,
and the Technology Installation and Operation Plan compliance scheme
discussed above addresses the concern that natural fluctuations could
impact the level of impingement mortality and entrainment at a given
facility over time. Further, the Director is given considerable
discretion to determine, based on the facility's Comprehensive
Demonstration Study, the appropriate averaging period and precise
metric for determining impingement mortality and entrainment
reductions. Generally, averaging over longer time periods (i.e., a full
five year permit term) can substantially reduce the impact of natural
variability on the determination of whether the performance standards
are being met.
3. Requirements by Waterbody Type
As stated in section C. 2, different performance standards would
apply for facilities located upon different waterbody types. Comments
were received both in support of and against basing performance
standards in part on waterbody type. Some commenters did not support
the withdrawal threshold of 5 percent of the mean annual flow for
facilities on freshwater rivers, as the organisms at an intake may not
be subject to entrainment or may not be evenly distributed. Some State
commenters supported the withdrawal threshold for freshwater rivers,
and another suggested correlating the intake flow requirements with the
total flow of the waterbody to better protect smaller flow rivers. One
State commenter generally opposed all of the proposed thresholds on
freshwater rivers as being arbitrary and stated that the regulations
would be more effective by considering the impacts to the population
within the waterbody. For lakes and reservoirs, one commenter opposed
the requirement to not disturb the thermal stratification of the
waterbody, stating that the requirement has not been defined in
sufficient detail, that EPA has presented no evidence that the
disruption is always detrimental, or presented any discussion of
technologies that might mitigate any thermal disturbances. Some
commenters did not support additional controls on the Great Lakes,
stating that the Lakes are not unique and do not require greater
protection. Another State commenter suggested that additional
requirements be implemented for any impaired waterbody.
EPA considers location to be an important factor in addressing
adverse environmental impact and one expressly included in the language
of section 316(b). When cooling water is withdrawn from sensitive
biological areas, there is a heightened potential for adverse
environmental impact, since these areas typically have higher
concentrations of impingeable and entrainable aquatic organisms.
Therefore, the final rule includes performance standards that vary, in
part, 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 a majority of commercial and recreational
species of fish and shellfish. Therefore, EPA believes that these areas
warrant a higher level of control that includes both impingement and
entrainment controls.
EPA also included performance standards for other waterbody types.
Facilities withdrawing greater than 5% of the mean annual flow from
freshwater rivers and streams will have additional requirements. As
described in the Phase I proposed rule (65 FR 49060) and the Phase II
NODA (66 FR 28853), 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. Thus, facilities withdrawing greater than
5% of the mean annual flow from freshwater rivers and streams may
entrain equal proportions of aquatic organisms. Freshwater rivers and
streams are somewhat less susceptible to entrainment than certain other
categories of waterbodies and, therefore, the final rule limits the
requirement for entrainment control in fresh waters to those facilities
that withdraw the largest proportion of water from freshwater rivers or
streams. EPA has promulgated special requirements for facilities
withdrawing from lakes and reservoirs. Facilities tend to withdraw from
the deeper portions of lakes and reservoirs, as these areas hold the
coolest water. The rule specifies that the intake flows must not
disturb the natural stratification (thermoclines) in the waterbody, as
this may disrupt the composition of dissolved oxygen and adversely
affect aquatic species. While such disruption is often detrimental,
this additional performance standard does not apply where the
disruption does not adversely affect the management of fisheries.
Intake location, the volume of water withdrawn, and other design
technologies can be used to address this requirement. Facilities
located on the Great Lakes are also subject to additional requirements
because these waterbodies have areas of high productivity and sensitive
habitat and in this respect have an ecological significance akin to
estuaries.
4. Approved Design and Construction Technology Option
In response to comments on the burden to facilities and permit
writers, EPA is including in the final rule an approved design and
construction technology option (previously referred to as a
``streamlined technology option'' or ``pre-approved technology
option'') for facilities in certain locations. Under this option, a
facility installing a specified technology would be subject to reduced
application requirements, including a reduced Comprehensive
Demonstration Study. In addition, the final rule sets forth criteria
that State Directors may use to identify and approve additional
technologies.
Nearly all commenters supported the concept of an approved design
and construction technology option as a positive step in facilitating
implementation of section 316(b). Several commenters added that this
option should not preclude the use of cost tests, restoration measures
or the use of other approaches. One commenter opposed the approved
design and construction technology option, arguing that the selection
of only one or two technologies oversimplifies the complexity of
waterbodies, and that the approach would not be sufficiently
protective.
Some commenters agreed that the wedgewire screen should be an
effective technology in certain situations and noted that EPA should
specify screen slot openings in the approved design
[[Page 41615]]
and construction technology option. One of the commenters stated that
research on the wedgewire screen suggests that the technology should
easily meet the impingement requirements, but that further research may
be necessary to confirm the effectiveness for entrainment reductions
with varying slot openings.
Some commenters offered suggestions for additional changes to the
option, such as developing scientifically sound, peer-reviewed criteria
for evaluating pre-approved technologies, identifying the technologies
in technical guidance documents as opposed to the regulation, and
continuing to allow restoration measures. Some commenters also
suggested specifying that any monitoring performed would be
informational in nature and not affect the facility's compliance
status, or that facilities only be required to ``substantially meet''
the stated goals. Other commenters suggested expanding the scope of the
approved design and construction technology option to include
prescribed operational or restoration measures or preapproved
technologies for intakes located on man-made cooling reservoirs.
A facility that chooses to comply under the pre-approved technology
option should not, in addition, need to employ restoration measures.
The intent of the pre-approved technology compliance alternative is to
provide a means to reduce the application and information collection
requirements for facilities that are able to meet performance standards
through a technology that is proven to meet performance standards for
impingement mortality and entrainment in most cases. A facility that
chooses to comply by meeting the conditions specified at Sec.
125.99(a), therefore, should be able to achieve the performance
standards for both impingement mortality and entrainment. Facilities
that propose an alternative technology for consideration as a pre-
approved technology under Sec. 125.99(b) are encouraged by EPA to
propose technologies to the Director for approval that are capable of
meeting performance standards for both impingement mortality and
entrainment with a high degree of confidence. However, a situation
could arise where a pre-approved technology only meets performance
standards for impingement mortality or entrainment. In such cases,
facilities that choose to comply using an approved design and
construction technology that only met a subset of applicable
performance standards could either employ other (1) design and
construction technologies, operational measures and/or restoration
measures or (2) request a site-specific requirements for the remaining
performance standards based on either the cost-cost or cost-benefit
test.
Some commenters stated that EPA should specify the wedgewire screen
slot opening size. EPA disagrees that it should specify a uniform
screen slot opening size for all facilities that choose the approved
design and construction technology alternative. The rule states in
Sec. 125.99(a)(1)(iv) that the screen slot size must be appropriate
for the size of eggs, larvae, and juveniles of all fish and shellfish
to be protected from entrainment at the site. Because the species to be
protected differ among locations, the slot sizes will need to be
tailored to the sizes of the various assemblages of species at each
site. EPA therefore has determined that the Director should determine
the appropriate design criteria, such as wedgewire screen slot opening
size, on a case-by-case basis. Since no impingement mortality and
entrainment Characterization Study is required under this streamlined
option, EPA expects that this determination would be based on available
information regarding species and life-stage composition of organisms
within the receiving waterbodies. Facilities may wish to assemble
available data and propose a screen slot opening size for the
Director's consideration.
Some commenters stated that EPA should develop peer-reviewed
criteria for evaluating pre-approved technologies other than the
wedgewire screen technology described in Sec. 125.99(a). EPA disagrees
that it needs to develop specific criteria for evaluating pre-approved
technologies. EPA believes that the Director is best equipped to
determine the most appropriate technologies for approval in their
jurisdictions, since these Directors are most familiar with the site-
conditions and intake configurations of the facilities within their
jurisdictions, and have physical access to the facilities. Under Sec.
125.99, EPA has set forth a broad framework outlining the types of
information that the permitting authority would need to evaluate
specific technologies, including design criteria of the proposed
technology, site characteristics and conditions necessary to ensure
that the technology will meet the performance standards, and data to
demonstrate that the facilities in the Director's jurisdiction with the
proposed technology and site conditions will be able to meet the
performance standards in Sec. 125.94(b). EPA believes that the
Directors will be able to evaluate the data and make determinations as
to whether the proposed technologies are suitable for use as approved
design and construction technologies in their jurisdictions. However,
EPA is requiring that the Director take public comment on such
determinations prior to finalizing them.
In answer to comments that EPA should not require facilities
choosing the approved design and construction compliance alternative to
demonstrate through monitoring that they meet the applicable
performance standards, EPA disagrees. EPA believes that verification
monitoring is very important because, while the pre-approved
technologies are designed to meet the performance standards in most
cases, the actual efficacy of any technology will be affected by site-
specific circumstances and conditions, as well as proper operation and
maintenance of the technology. For this reason, EPA believes that it is
necessary and appropriate for these facilities to prepare a Technology
Installation and Operation Plan that describes how they will operate
and maintain the technology and assess success in meeting the
performance standards, as well as adaptive management steps they will
take if the technology does not perform as expected. They must also
propose a Verification Monitoring Plan to describe the monitoring they
will perform to support their performance assessment. EPA notes that
facilities that select the approved technology alternative have
significantly reduced application and information collection
requirements relative to facilities that comply under other
alternatives.
One commenter stated that the approved design and construction
technology alternative will not be sufficiently protective given the
complexity of waterbodies. While EPA does not agree with this comment,
EPA recognizes that the efficacy of a given technology will be affected
by site-specific conditions, such as biological and chemical factors in
the waterbody. Because the efficacy of the technology will be affected
by such site-specific conditions, EPA has required all facilities that
choose to comply using the approved design and construction technology
compliance alternative to submit a Technology Installation and
Operation Plan and a Verification Monitoring Plan, and to determine if
they are meeting the applicable performance standards through
monitoring, and adjust their operations accordingly if they are not.
EPA believes, based upon extensive research, that the majority of
facilities with the appropriate site conditions, and that have
installed and properly operated
[[Page 41616]]
and maintained submerged cylindrical wedgewire screen technology,
should be capable of meeting the performance standards set forth in
Sec. 125.94(b). For facilities that fail to meet performance standards
through the approved design and technology alternative, the Director
may amend the facility's permit to require the use of additional design
and construction technologies, operational measures, and/or restoration
measures, in order to meet the performance standards, or if
appropriate, issue a site-specific determination of BTA.
5. Capacity Utilization Threshold
In the proposed rule, EPA introduced reduced requirements for
facilities that are typically not operating year-round and would
therefore bear a proportionately higher cost to comply with the rule.
EPA proposed that facilities that operate less than 15% of the time
(also known as peaking facilities) would only be subject to impingement
reductions, regardless of the waterbody type upon which the facility is
located.
Generally, commenters supported the concept of reduced requirements
for peaking facilities. However, commenters stated that EPA must
further refine the definition of peaking facilities and in many cases
suggested that EPA adopt the United States Department of Energy's
definition of capacity utilization. Aspects of EPA's definition on
which commenters requested clarification included how to measure the
capacity rate (per intake, per facility, per generating unit, etc.),
the time frame for determining historic utilization rates, and the
definition of ``available'' with respect to how to calculate the
capacity utilization rate. One commenter further suggested that EPA
allow an expanded definition (i.e., a higher capacity utilization rate)
for facilities that typically operate in periods of low abundance of
entrainable organisms. One commenter further requested that the reduced
requirements for peaking facilities be extended to account for future
operations at the plant as well. Another commenter expressed concern
over the definition of the threshold, as the operational time for the
facility could still coincide with periods of high abundances of
organisms and therefore still result in significant entrainment. One
commenter opposed the threshold, stating it could encourage facilities
to reduce electricity production in order to have less stringent
requirements and therefore impact energy production, prices, and energy
supply nationwide.
State commenters generally supported the concept, but were divided
as to the threshold utilization rate; some States preferred a lower
threshold and one mentioned that it would prefer a higher threshold.
One State did not support the reduced requirements for peaking
facilities, noting that the time frame in which the facility operates
may be more important than the volume withdrawn. Another State
suggested that restoration or mitigation also be required of peaking
facilities.
EPA has identified peaking facilities in the final Phase II rule as
those facilities that operate at an overall capacity of less than 15
percent. EPA believes that facilities operating below 15% should be
subject to less stringent compliance requirements relative to a typical
base load facility. The threshold of 15% is based on these facilities'
reduced operating levels, low potential for entrainment impacts, and
consideration of economic practicability (see, 67 FR 17141). To address
commenter concerns, EPA has modified the capacity utilization
definition to say that the capacity utilization rate applies only to
that portion of the facility that generates electricity for
transmission or sale using a thermal cycle employing the steam water
system as the thermodynamic medium. The Agency has amended the
definition of the capacity utilization rate threshold to remove the
term ``available'' from the definition, as requested by comments.
Further, the Agency has allowed for calculation of the capacity
utilization rate on an intake basis, when the intake is exclusively
dedicated to a subset of the plant's generating units, and for
determination of the capacity utilization rate based on a binding
commitment of future operation below the threshold.
Peaking facilities are typically older, less efficient generating
units. Because the cost of operation is higher, peaking facilities are
generally employed when generating demand is greatest and economic
conditions justify their use. Such usage is typically a fraction of the
unit's overall generating capacity and represents significantly less
cooling water used when compared to the design intake capacity. This
would appear to obviate the need for entrainment controls for the
facility.
Most peaking facilities are employed during the highest electrical
demand period, typically mid-winter or mid-summer. It is generally
accepted that while these seasons can sometimes be associated with a
higher abundance of aquatic organisms or spawning events, mid-winter
and mid-summer are not typically considered to be critical periods for
aquatic communities. Given these operating conditions, generally
entrainment controls would appear to be an unnecessary cost for these
facilities because the losses, while they occur, would have minimal
adverse environmental impact.
D. Site-Specific Approach
Past implementation of section 316(b) often followed the draft
guidance document published in 1977, which promoted a largely site-
specific approach. In this rulemaking, EPA is establishing national
performance standards for best technology available for minimizing
adverse environmental impacts in connection with cooling water intake
structures. Many comments were received regarding a site-specific
approach to implementation.
1. Approach
Many commenters favored a site-specific approach in place of
national performance standards. Many of the commenters cited a need for
flexibility to comply with the regulations, and stated that only a
site-specific approach can represent the best framework for addressing
site-specific environmental impacts in a cost-effective manner.
Commenters also favored an approach that resembles current practices
for implementation of 316(b), in which site-specific determinations are
made without reference to national performance standards.
Some commenters did not support the concept of a site-specific
rule. One commenter stated that it does not fulfill a national standard
and allows a more lenient application for some facilities. Another
commenter added that a site-specific approach favors industry, as the
resources of the regulators and interested public groups to respond to
information-intensive site-specific determinations are limited. Some
States also expressed concern over a site-specific approach, as it
could be less stringent than the present approach, as well as more
burdensome. Some other States expressed support for site-specific
approaches.
In the final rule, EPA has established national performance
requirements for the reduction of impingement mortality and entrainment
that reflect best technology available to minimize adverse
environmental impact for Phase II existing facilities, and has
authorized five different compliance alternatives to achieve those
standards, including a site-specific alternative. Thus, the Agency has
provided both clear national standards of environmental protection and
sufficient flexibility to allow for the selection of cost-efficient
approaches to compliance and permit administration. In addition, under
certain compliance alternatives, Phase II existing facilities
[[Page 41617]]
can use restoration measures, either in lieu of, or in combination with
technologies and/or operational measures, when design and construction
and/or operational measures alone are less feasible, less cost-
effective or less environmentally desirable. This provides additional
flexibility to permittees and permitting agencies. Finally, as
discussed in Section VII of this preamble, EPA does not agree that all
aspects of certain site-specific approaches effectively fulfill the
requirements of section 316(b).
2. Existing Programs and Determinations
Several commenters stated that there is already a successful 30-
year history of implementing section 316(b). Some commenters noted that
many States currently implement 316(b) using a site-specific approach
and that these programs should be allowed to continue, including any
restoration or enhancement programs the States have established. Others
stated that existing BTA determinations (conducted using a site-
specific approach) should remain valid.
EPA acknowledges that some States' existing programs and
determinations have been successful in reducing adverse environmental
impacts to waters of the United States associated with cooling water
intake structures. EPA disagrees, however, that all existing BTA
determinations should remain valid. Some historical BTA decisions may
be based on physical, chemical or biological conditions that are no
longer relevant at the site, or reflect BTA technology that is outdated
and would not meet the performance standards set forth in today's final
rule. However, the final rule provides for EPA approval of alternative
State program requirements where such State NPDES requirements 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. (see Sec.
125.90(c)). Thus, this rule provides a reasonable degree of flexibility
for States to implement existing effective programs. In Sec.
125.94(e), States are also allowed to establish more stringent BTA
requirements if necessary to comply with State, tribal, or other
federal law.
E. Implementation
1. Calculation Baseline
Numerous commenters indicated that they were unclear as to how to
calculate the baseline conditions for impingement mortality and
entrainment. Some commenters suggested that the calculation baseline
should reflect unrestricted operation at full design capacity year-
round to avoid continually changing the baseline, since maintenance and
operational schedules change over time. Another commenter added that
the baseline definition must specify that data be based upon maximum
operation of a given facility, to avoid allowing a facility to withdraw
more water than it has been permitted for (based on an averaged flow).
Other commenters claimed that the use of a calculation baseline was
problematic due to the difficulties of extrapolation between localities
and waterbody types. One commenter asserted that the calculation
baseline should reflect current local environmental conditions, not
historical or hypothetical future conditions and should specify the
level of operation that would be maintained in the absence of
operational controls implemented for reducing impingement and
entrainment.
Many commenters supported an ``As Built'' alternative approach
where a facility would calculate entrainment reduction based on
historical measurements before installation of new technology or
sampling immediately in front of the new technology and enumerating the
organisms of a size that will pass through a standard \3/8\-inch
screen. Several commenters agreed that the use of historical data would
aid in estimating the calculation baseline while others cautioned
against the use of historical data that may not be relevant to the
current conditions. One commenter disagreed with EPA's statement that
the baseline could be estimated by evaluating existing data from a
nearby facility; the commenter asserted that site-specific factors
determine whether an organism will interact with a cooling water intake
structure and/or survive the interaction. Overall, most commenters
recommended that EPA allow the Director broad discretion and
flexibility in evaluating the calculation baseline due to varying site
conditions.
The calculation baseline provides a standard intake configuration
by which facilities can determine relative reductions in impingement
and entrainment. EPA acknowledges the numerous comments on the proposed
definition and has refined the definition to provide more clarity in
implementing this concept. For example, the definition in the proposed
rule incorporated a shoreline intake structure. In the final rule, the
definition has been clarified to specify a \3/8\-inch mesh traveling
screen at a shoreline intake structure. Based on available data that
indicate this is a common intake structure configuration at Phase II
existing facilities, EPA designated a \3/8\-inch screen as the standard
mesh size against which reductions will be calculated. Similarly, the
assumption of no impingement or entrainment controls in the definition
in the proposed rule has been clarified to describe an intake where the
baseline operations do not take into include any procedures or
technologies to reduce impingement or entrainment. EPA recognizes that
some facilities may have control technologies in place that already
reduce impingement or entrainment; the final calculation baseline would
allow credit for such reductions. Additionally, EPA further clarified
the definition to include the potential data sources that may be used
in defining the calculation baseline, such as historical data, data
collected at nearby locations, or data collected at the facility. EPA
is authorizing the use of existing biological data in determining the
calculation baseline to minimize the impacts to facilities, provided
that the data are representative of current facility and/or waterbody
conditions (as applicable) and were collected using appropriate quality
control procedures.
EPA has further clarified the definition to provide that the
calculation baseline may be based on an intake structure located at a
depth other than a surface intake if the facility can demonstrate that
the standard definition (i.e., a shoreline surface intake) would
correspond to a higher baseline level of impingement mortality and/or
entrainment.
EPA chose not to incorporate operating capacity into the
calculation baseline, as the definition is not dependent upon intake
flow volumes. EPA has chosen to adopt the ``as built'' approach: as
stated in Sec. 125.93, a facility may choose to use the current level
of impingement mortality and entrainment as the calculation baseline.
EPA recognizes that this definition cannot address the variety of
intake configurations and other conditions at all facilities and
therefore cannot define the calculation baseline in all settings.
However, EPA believes that the calculation baseline in the final rule
is clear and straightforward to implement, and allows for proactive
facilities (i.e., those with control technologies, operational
procedures, or restoration measures already in place) to take credit
for existing measures.
2. How Will Attainment of the Standards Be Measured?
At the time of the NODA, EPA was evaluating several approaches for
[[Page 41618]]
measuring success in meeting performance standards. EPA therefore
requested comments on whether performance should be measured based on
an assessment of the impacts to all fish and shellfish species (``all-
species approach'') or to fish and shellfish from only a subset of
species determined to be representative of all the species that have
the potential to be impinged or entrained (``representative species
approach''). These comments are addressed under section 2. a below.
Several terms to describe the representative species approach have been
used historically. To avoid confusion among the terms ``representative
indicator species,'' ``representative important species,'' and
``critical aquatic organisms,'' EPA is adopting the term
``representative species'' for the purpose of simplicity in this
section. EPA also requested comment as to whether enumeration of
organisms or biomass should be used as the metric for measuring success
in meeting the performance standards. These comments are addressed in
section 2. b below. With regard to counting absolute numbers of
organisms, EPA also requested comment on the option of counting
undifferentiated organisms (i.e., counting without specifying taxonomic
identification).
After attempting to select optimal approaches for both the scope
and metric to use in determining attainment of the performance
standards, EPA has determined site-specific factors such as biological
assemblage at the site, intake location, and waterbody type must be
factored into decisions regarding how to evaluate attainment. EPA has
therefore decided that, in its Verification Monitoring Plan
(125.95(b)(7)), the facility must propose, among other things, the
parameters to be monitored for determining attainment. The Director
will be best suited to review and approve proposed parameters for each
facility on a case-by-case basis.
a. Scope of Evaluation: All-Species Consideration vs. Representative
Species
Several commenters supported the use of a representative species
evaluation, as opposed to the all-species evaluation, as the most
practical approach in many cases. Another commenter stated that even
with the representative species approach, factors other than simply
numeric reduction in impingement mortality and entrainment must be
considered when determining attainment. On the other hand, one
commenter stated that an ``all species'' approach could make compliance
demonstrations simpler and somewhat less expensive so long as the
taxonomic identity of collected organisms is not required. The
commenter noted that this would not be appropriate, however, in cases
where taxonomic identification is needed, such as where eggs and larval
stages are converted to age-1 equivalents.
As part of the representative species inquiry, EPA also requested
comment on whether 10 to 15 species might be an appropriate number of
representative species to protect all species and ecosystem functions
at a facility. One commenter responded, stating that 15 was too large a
number. This commenter suggested that a demonstration should focus on
the four or five species and add to the list only if there was another
species of special concern.
In response to the commenter who suggested that EPA should evaluate
factors other than reduction in numbers of organisms impinged or
entrained, EPA has selected several means by which to determine
compliance with section 316(b) requirements. For facilities that choose
to demonstrate compliance with the performance standards, the metric
that will be used to evaluate compliance with the performance standards
is the facility's reduction of impingement mortality and entrainment
through the installation of design and control technologies and/or
operational measures. For these facilities, compliance may then be
measured against a facility's calculation baseline, which the facility
estimates and submits with its permit application package. The
calculation baseline is defined at Sec. 125.93. For facilities that
choose to use compliance with the terms of a Technology Installation
and Operation Plan or Restoration Plan to determine compliance, the
degree of success in meeting performance standards is still an
important criteria for determining if adaptive management is needed,
but it would not be the basis for determining compliance. For
facilities that choose to use restoration measures, attainment of
performance standards will be based upon whether the production of fish
and shellfish from the restoration measures is substantially similar to
the level of fish and shellfish the facility would achieve by meeting
the applicable impingement and/or entrainment requirements. If a
facility has been approved for a site-specific determination of best
technology available, the Director will establish alternate
requirements accordingly. EPA expects that a variety of factors will be
considered in determining the appropriate compliance option for a
facility, such as waterbody type, intake location, percentage
withdrawal of mean annual flow of rivers or streams, capacity to upset
thermal stratification in lakes, a facility's calculation baseline, and
the appropriateness of existing or proposed protective technologies or
measures.
EPA agrees that a single approach may not be optimal in all cases.
The Agency has therefore not prescribed the methods (including a
metric) for assessing success in meeting performance standards in
today's final rule. Rather, the Director must determine whether a
clearly defined all-species approach or representative species approach
is appropriate on a case-by case basis, based upon the information and
proposed methods presented by the facility. The Director may choose to
require evaluation of all species or of certain representative species.
In response to comments regarding EPA's suggested number of
representative species, the facility will propose the number of species
to monitor, as well as decisions regarding species and life stages to
monitor, for review and approval by the Director as part of
Verification Monitoring Plan (125.95(b)(7)), Technology Installation
and Operation Plan (125.95(b)(4)(ii)), and, if applicable, the
Restoration Plan required at 125.95(b)(5). As such, in cases where the
representative species approach is applied, the Director may approve
the number of representative species proposed by the facility, based
upon the specifics of the waterbody from which the facility is
withdrawing, the percentage volume of water withdrawn relative to the
freshwater river or stream (as applicable), and other factors.
b. Metric: Absolute Counts vs. Biomass
EPA requested comment as to whether species impinged or entrained
may be measured by counting the total number of individual fish and
shellfish, or by weighing the total wet or dry biomass of the
organisms. In response to the use of absolute counts of organisms or
biomass (weight) for determining compliance, commenters offered a
variety of views. Regarding the use of biomass as a metric, one
commenter expressed that measuring either biomass or total
undifferentiated numbers of species would be appropriate for cases
where restoration was the chosen option, since restoration will never
result in one-for-one species compensation. Several commenters pointed
out a disadvantage of counting numbers of organisms: early life stages
will dominate the numbers and thereby dominate the compliance
[[Page 41619]]
determination, even though most of them would have suffered large
natural mortality losses even without entrainment. To correct for this,
a few commenters suggested identifying the organisms and converting
them to an equivalent unit to ensure that each life stage is
appropriately weighed. Specifically, one commenter suggested converting
to equivalent juveniles, when measuring organisms by biomass, to
correct for the fact that the count will be dominated by later larval
stages even though the number of these organisms per unit weight will
be small compared to eggs and larvae. This commenter continued that
this approach would be useful for forage species, since biomass is an
appropriate measure of the organisms that serve as a food source for
commercial and recreational species.
EPA received many comments regarding the need for flexibility in
determining the appropriate metric to use to determine attainment of
performance standards. Several commenters asserted that the rule should
allow flexibility in the approach and the choice of metric should
factor in whether one is assessing impingement mortality, entrainment
or both; species and life stages affected, and compliance option.
EPA has decided to give the Director the authority to review and
approve methods of determining compliance proposed by the facility as
part of the Verification Monitoring Plan. (125.95(b)(7)), Technology
Installation and Operation Plan (125.95(b)(4)(ii)), and, if applicable,
the Restoration Plan required at 125.95(b)(5). Thus, the facility will
propose, and the Director will review and approve, species and life
stages of concern. The Director may choose to require evaluation of all
species or of certain indicator species; or the Director may elect to
verify attainment of performance standards using biomass as a metric.
EPA believes that as each situation will be somewhat unique, it should
be left to the facility to propose and the Director approve the
appropriate unit, biomass or actual counts.
c. Other Means of Determining Attainment of Performance Standards
Several commenters also suggested that EPA should allow for the use
of existing data for measuring attainment in lieu of requiring existing
facilities to collect and develop new data. Commenters also suggested
that if a facility currently implements the best technology available
to minimize adverse environmental impact, it should be found in
compliance even if the newly promulgated performance standards are not
being met. Other commenters expressed that a facility should be
considered in compliance even during occurrences of unavoidable
episodic impingement and entrainment events. These commenters stated
that in such unusual circumstances, the facility should be provided
with an exemption from any regulatory actions.
EPA agrees with commenters that under certain circumstances,
facilities' historical data may be sufficient to verify that they are
meeting performance standards, as long as the historical data is
reflective of current operation of the facility and of current
biological conditions at the site. For example, under compliance
alternative 2, a facility may use historical data to demonstrate that
existing design and construction technologies, operational or
restoration measures, meet the performance standards. EPA also believes
that some historical data may be appropriate for determining the
calculation baseline and for characterizing the nature of impingement
and entrainment at the site, and therefore has given the Director the
discretion to determine whether historical data are applicable to
current conditions (see 125.95(b)(1)(ii), 125.95(b)(2)(i), and
125.95(b)(3)(iii)). In addition, a facility that proves, using existing
data, that it has reduced its intake capacity commensurate with closed-
cycle recirculating systems would be considered to be in compliance,
and therefore would not be required to meet the performance standards
for either impingement mortality or entrainment.
After the first permit term, facilities may submit a request for
reduced information collection activities to their Director. Facilities
that are able to demonstrate that conditions at their facility and in
the waterbody from which their facility withdraws surface water are
substantially unchanged since their previous permit application will
qualify for reduced requirements (Sec. 125.95(a)(3)). In all these
cases, historical data are used and required to measure success in
meeting performance standards. However, facilities required to submit a
Verification Monitoring Plan must still submit verification monitoring
data for at least two years following implementation of technologies
and/or operational measures.
Other commenters argued that a facility that is implementing permit
conditions reflecting a historical determination of the best technology
available should be considered in compliance with today's final rule
even if the facility is not meeting performance standards. EPA
disagrees that a historical determination of the best technology
available is appropriate for complying with the requirements set forth
by today's rule. Many historical determinations of the best technology
available are less protective of aquatic organisms and ecosystems than
the standards set by today's rule, and would undermine the national
performance standards that EPA has determined reflect the current best
technology available for minimizing adverse environmental impact.
Furthermore, biological, chemical and physical conditions at the
facilities may have changed since the earlier determinations were made,
and the best technology available determinations may no longer apply.
Many of the historical best technology available determinations are
twenty years old or older and may not correspond with current waterbody
or operating conditions.
The question whether a facility should be considered in compliance
even during occurrences of unavoidable episodic impingement and
entrainment events is left to the Director. At the Director's
discretion, facilities that are generally in compliance, but that
experience an unusual peak of impingement mortality and/or entrainment,
may be considered to still be in compliance on the basis of past good
performance. Moreover, the inclusion of a compliance determination
alternative based on a Technology Installation and Operations Plan in
the final rule also addresses these episodic issues.
d. Monitoring
One commenter stated that monitoring frequencies should be
established to address the inherent variability in the rates in
impingement and entrainment over the seasons of the year. Monthly or
biweekly monitoring is probably appropriate in many cases. The same
commenter stated that standard statistical procedures could be followed
to establish sample sizes needed to establish appropriate levels of
precision in the estimates (e.g., 95% confidence intervals within 15-
25% of the mean). In contrast, another commenter pointed out that
weekly sampling would be necessary to determine compliance, as had been
necessary for the Salem facility. Another commenter suggested that the
most cost-effective way of conducting studies would be over the periods
of peak abundance.
Some commenters stated that facilities should be allowed to cease
monitoring following achievement of the performance standards. Some
[[Page 41620]]
suggested that facilities meeting performance standards through a
closed-cycle cooling system should be exempt from monitoring. Another
commenter disagreed with the two-year monitoring requirement
altogether.
EPA has determined that a uniform averaging period would not be
appropriate; rather, the Director will be best suited to make all such
determinations by evaluating these and other factors for each facility
on a case-by-case basis. The Director will be able to make
determinations regarding averaging periods based upon site-specific
factors, such as biological assemblage at the site, annual and diel
fluctuations in concentration and populations present, and the selected
compliance alternative. EPA disagrees that a facility should cease
monitoring once performance standards are achieved, as site-specific
conditions at any facility are bound to change with time, affecting a
facility's ability to achieve performance standards. EPA agrees that
facilities meeting performance standards through flow reductions
commensurate with closed-cycle cooling should be exempt from monitoring
(see Sec. 125.94(a)(1)(i)). Finally, EPA believes that the two-year
monitoring requirement is appropriate so that any site-specific
variability in impingement and entrainment rates can be detected.
e. Timing
Some States favored flexibility in implementation including
delaying the effective date for permits to be renewed soon after the
rule is finalized. Some commenters suggested that the requirements of
the rule must be timed so that facilities are not forced into a period
of noncompliance because of the time needed to determine, design, and
install new intake technology.
One commenter expressed that implementation schedules are too
strict. Along the same vein, another commenter suggested that EPA
should build flexibility into the implementation schedule so that
facilities are not forced into periods of noncompliance.
Commenters generally wanted to see flexibility in the averaging
periods (time increments for determining success in meeting the percent
reduction or production specified by the performance standards and
restoration requirements in Sec. 125.94,) and a way to tailor the
sampling schedules to the needs of the site. These commenters indicated
that the monitoring should be frequent enough to provide useful
information, but not so intensive as to make the program unnecessarily
costly or time-consuming. Furthermore, several recommended that a
compliance schedule be written into the permits, to allow facilities to
install and test new equipment. Several commenters agreed that
different facilities might require different amounts of time, as
dictated by where they are in the cycle and what their circumstances
are.
EPA has provided for time to comply with permitting requirements. A
facility whose permit expires more than four years after the date of
publication of this final rule must submit the required information 180
days before the expiration of their permit. A facility whose permit
expires within four years of the date of publication of this final rule
may request that the Permit Director establish a schedule for
submission of the permit application. Such submission should be as
expeditiously as practicable, but no later than three and one-half
years from the date of publication of this final rule. It is expected
that the time that facilities need to comply with permitting
requirements will be variable, ranging from one year for those not
needing to do an impingement mortality and entrainment study to over
three years for those needing to collect more than one years worth of
impingement and entrainment data.
EPA has also provided that facilities may opt to comply with the
Technology Installation and Operations Plan compliance scheme that
allows facilities who properly implement the Technology Installation
and Operations Plan (or Restoration Plan, as applicable) to be
considered in compliance with the requirements of Sec. 125.94. As
indicated above, the final rule provides the Director the flexibility
to establish an appropriate averaging period to meet the particular
situation present in the waterbody within which the facility is
located.
3. Entrainment Survival
EPA invited comment on whether to allow Phase II existing
facilities to incorporate estimates of entrainment survival when
determining compliance with the applicable performance standards.
Commenters responded with numerous comments regarding survival with
respect to the performance standards as well as comments regarding
EPA's assumption of zero percent entrainment survival (100 percent
mortality) in the benefits assessment for today's rule.
Some commenters opposing the zero percent survival assumption
argued that in the event a facility can demonstrate entrainment
survival, it should be awarded credits towards meeting performance
standards. EPA disagrees. Today's final rule sets performance standards
for reducing entrainment rather than reducing entrainment mortality.
EPA chose this approach because EPA does not have sufficient data to
establish performance standards based on entrainment survival for the
technologies used as the basis for today's rule. If EPA had
incorporated entrainment survival into any of its conclusions regarding
the appropriate performance standards, then the actual performance
standard would most likely have been higher.
Many commenters argued that in many cases organisms survive
entrainment and the zero percent survival assumption was too
conservative. Some commenters suggested that EPA was biased in its
approach to entrainment survival. For example, one commenter stated
that EPA was biased as a result of relying heavily on old entrainment
survival literature.
Based on its review of all entrainment survival studies available
to the Agency, EPA believes that its assumption of zero percent
survival in the benefits assessment is justified. The primary issue
with regard to the studies EPA reviewed is whether the results can
support a defensible estimate of survival substantially different from
the value zero percent survival assumed by EPA. The review of the
studies has shown that while organisms are alive in some of the
discharge samples, the proportion of the organisms that are alive in
the samples is highly variable and unpredictable on a national basis.
In addition, some studies contain various sources of potential bias
that may cause the estimated survival rates to be higher than the
actual survival rates. For these reasons, EPA believes the current
state of knowledge does not support reliable predictions of entrainment
survival that would provide a defensible estimate for entrainment
survival above zero at a national level. However, today's final rule
does allow facilities to use the results of a well-constructed, sites-
specific entrainment survival study, approved by the Director, in their
benefits assessments when seeking site-specific entrainment
requirements. The permitting authority must review and accept the study
before the results may be incorporated into the benefits assessments.
In cases where there is uncertainty in the survival rates, permitting
authorities may want to specify that benefits be presented as a range
that reflects this uncertainty.
[[Page 41621]]
4. Comprehensive Demonstration Study (CDS)
a. Requirements and Burden
The majority of commenters expressed two concerns regarding the
CDS: (1) it was too burdensome and costly, and the volume of
information required was too overwhelming, and (2) several components
required clarification. These commenters generally suggested that the
costs of such a study were underestimated, and many indicated that the
cost estimates for completing the CDS contained misleading or incorrect
information. Commenters indicated that the information required for
completing the CDS was similar to the data that would be needed for
implementing a purely site-specific approach and was therefore overly
burdensome. Commenters suggested that EPA require a more simplified
demonstration study or waive the requirement for facilities that select
one of the approved technologies. Some commenters suggested, in
general, that costs could be greatly reduced by streamlining this
process, for example, by exempting facilities from certain components
based on (1) facilities that have proven that they are not harming the
aquatic community, and (2) facilities for which there exists relevant
historical data.
Several States anticipated that the majority of their facilities
were likely to choose the site-specific compliance alternative, and
indicated that a rule that requires cost/benefit analyses for many
decisions would be difficult to administer and require significant
resources to implement. They claimed that the site-specific performance
standards compliance option would impose a substantial review burden
and would require specialized expertise. Some States questioned whether
existing permitting staff resources over the first 5 years will be
sufficient to review material and develop permit requirements.
Many commenters suggested that EPA could lower costs by
streamlining the CDS, exempting facilities that are not causing adverse
environmental impact or have historical data, and waiving the
monitoring components for facilities that have installed approved
technologies.
EPA believes that many efficiencies have been added to the rule
since the proposal and the NODA to address concerns that the CDS is too
burdensome and costly. First, EPA has provided five compliance
alternatives to choose from, one of which allows a facility to install
an approved design and construction technology with minimal CDS
requirements. In addition, facilities with design intake flow
commensurate with closed-cycle recirculating systems are exempt
entirely from the CDS; facilities may only have to submit partial CDS
information if they have reduced their design intake velocity to less
than or equal to 0.5 feet per second and are only required to meet
requirements as they relate to reductions in entrainment. In addition,
requiring an early submission of the Proposal for Information
Collection allows the Director to potentially minimize the amount of
information required by the facility. Also, by allowing the use of
historical data, EPA has minimized costs for many facilities. In the
cases where new studies are required, EPA has given the permittee and
the Director discretion to set conditions for the studies which will
not be overly burdensome. Facilities may also reduce costs incurred
through the information collection process in subsequent permit terms
by submitting, one year prior to expiration of the existing permit, a
request for reduced permit application information based on conditions
of their cooling water intake structure and waterbody remaining
substantially unchanged since the previous permit issuance.
One commenter expressed concern that historical data should not be
allowed in the development of the CDS, as it may not accurately reflect
current conditions. EPA believes that some historical data may be
appropriate for determining the calculation baseline and for
characterizing the nature of impingement and entrainment at the site,
and therefore has given the Director the discretion to determine
whether historical data are applicable to current conditions. EPA
expects to provide guidance to Directors to help them make
determinations about historical data submitted by facilities.
Historical data will not be used to determine attainment of performance
standards; this will be verified through a monitoring program approved
by the Director.
b. Timing of Submitting Information
Commenters submitted a variety of opinions about timing. Generally,
most favored limiting the submittal of CDS components to a frequency
equal to or greater than once every five years (one permitting cycle)
to reduce burden. Another commenter argued that there is no reason to
mandate timing, and that approval of the Director should not be
necessary. Other commenters suggested that a time frame is necessary,
and that the information should be submitted with the renewal
application for a NPDES permit. Numerous commenters asserted that
consultation activities should occur prior to development of the
Comprehensive Demonstration Study; that schedules and requirements
should be specified in the permit for various data collection,
analysis, and application submission activities; implementation
schedules are too strict; and monitoring requirements need
clarification. Yet another commenter suggested to ``start the clock''
with the issuance of the renewed permit. Commenters also indicated that
anywhere from one year to several years might be necessary to verify
success in meeting the performance standards. Several commenters
suggested that given the nature of cooling water intake impacts and the
proposed requirements, section 316(b) permit and BTA determinations
should not be made every five years. Instead, they suggested that one-
time determinations should suffice, or that facilities should be
allowed to rely on previous section 316(b) demonstrations if conditions
remain essentially unchanged. There was also some general confusion as
to when the rule would actually become effective.
In response to the comment that EPA should not request submittal of
CDS components more frequently than every five years or more, EPA has
included a provision whereby a facility may be granted reduced CDS
submittal requirements if it can prove that conditions at the facility
and in the waterbody have not substantially changed. Facilities will be
required to review whether conditions, such as biological, chemical or
physical conditions, have substantially changed at each permit renewal
cycle. If conditions have changed, facilities will be required to
submit all of the relevant CDS components (those that would be affected
by the changed conditions when they submit the application for permit
renewal.
One commenter stated that the CDS should be a one-time submittal.
EPA disagrees that all components of the CDS should only be researched
and submitted a single time for the lifetime of the facility,
regardless of potential changes in the plant and/or waterbody, because
the natural and anthropogenic changes that occur in waterbodies over
time may affect a facility's ability to meet performance standards
using the current design and construction technologies, operational
measures, and/or restoration measures in place.
In response to comments that timing was not clear in previous
versions of the rule, EPA agrees, and has clarified timing issues in
today's final rule. A
[[Page 41622]]
facility whose permit expires more than four years after the date of
publication of this final rule must submit the required information 180
days before the expiration of their permit. A facility whose permit
expires within four years of the date of publication of this final rule
may request that the Permit Director establish a schedule for
submission of the permit application, but that such submission should
be as expeditiously as practicable, but no later than three and one-
half years from the date of publication of this final rule. It is
expected that the time that facilities need to comply with permitting
requirements will be variable, ranging from one year for those not
needing to do an impingement mortality and entrainment study to over
three years for those needing to collect more than one years worth of
impingement and entrainment data.
Some commenters felt that decisions about the timing of the CDS
submittal should be left to the Director. EPA agrees and has provided
only that the proposal for information collection should be submitted
prior to the start of information collection activities, but that the
facility may initiate information collection prior to receiving comment
from the Permit Director. All other components of the Comprehensive
Demonstration Study must be submitted 180 days prior to permit
expiration except as noted above for the first, permit term following
promulgation of the rule.
5. State Programs
Many States requested that existing State section 316(b) programs
be allowed to be used to meet the requirements of Phase II. One
commenter asserted that the Phase II rule should not overturn past
State section 316(b) decisions at existing facilities that were made on
a site-specific basis and that examined the impacts of the cooling
water intake structure in relation to the specific biological
community. Several commenters stated that EPA did not sufficiently
recognize the work already done by the States in implementing section
316(b). Several commenters do not believe that a State should have to
demonstrate that its program is ``functionally equivalent'' to today's
rule (i.e., that its alternative regulatory requirements achieve
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).
In response to comments about existing State section 316(b)
programs, EPA believes that Sec. 125.90(c) in today's rule, by
allowing alternative State programs, acknowledges the work already done
by States. In response to the comment that a State should not have to
prove that its program achieves environmental performance comparable to
those that would be achieved under Sec. 125.94, EPA disagrees. While
EPA is giving significant flexibility to permitting agencies at the
State level to determine how and what each facility must protect and
monitor, it believes it is important to set uniform national
performance standards.
F. Restoration
In the proposed rule EPA requested comments on the use of
restoration measures by facilities within scope of the rulemaking (67
FR 17146). EPA received diverse comments. Many commenters supported a
role for restoration measures. Several commenters stated that allowing
restoration provides additional flexibility to those who must comply
with the section 316(b) requirements, and may provide a more cost-
effective means of minimizing adverse environmental impact than
operational measures or design and construction technologies. Other
commenters stated that restoration is a well-accepted concept that
should have a voluntary role in section 316(b) determinations and
constitutes an appropriate means for reducing the potential for causing
adverse environmental impact. Several commenters felt that restoration
could provide significant benefits in addition to compensating for
impingement and entrainment losses. A number of commenters requested
flexibility in the implementation of restoration projects. Some
commenters stated that restoration should not be limited to
supplementing technology or operational measures, but should instead be
allowed as a complete substitute for such measures. However, other
commenters stated that restoration measures should only be used once
every effort has been made to use technology to avoid impacts.
Commenters further stated that restoration should not be mandatory
and that EPA lacks authority under section 316(b) to require it, but
also asserted that it should have an important role in section 316(b)
permitting decisions. Commenters also stated that restoration should
not be considered the best technology available for minimizing adverse
environmental impact because it is not a technology that addresses the
location, design, construction, or capacity of a cooling water intake
structure. However, one commenter argued that past restoration measures
should be considered during a regulator's determination of whether or
not adverse environmental impact is occurring from a cooling water
intake structure.
Other commenters felt restoration should have a limited role or no
role in the context of section 316(b). One commenter wrote that
restoration measures, in the context of section 316(b), are generally
unworkable and that the only measurable restoration method would be
offsetting, in which an applicant stops use of an older intake facility
that does more harm than the proposed one. One commenter stated that
restoration methods must reproduce the ecological value of lost
organisms and that they have not seen restoration projects adequately
successful in this manner in their region of the country. Many
commenters pointed out uncertainties associated with compensating for
those organisms impacted by a cooling water intake structure through
restoration.
Some commenters suggested that, if restoration is allowed, there
should be consultation with other State and Federal resource agencies
to avoid inconsistent approaches and to provide useful information on
the affected waterbody.
Several commenters remarked on EPA's proposal to include
requirements for uncertainty analysis, adaptive management plans, and
peer review in the final rule. Some commenters were in favor of the
requirements and felt that they would enhance restoration measure
certainty and performance. Some commenters were concerned that the
requirements would be overly burdensome or would overly restrict the
restoration measure options available to permit applicants.
EPA has retained restoration in the final rule and believes that
the restoration requirements strike an appropriate balance between the
need for flexibility and the need to ensure that restoration measures
achieve ecological results that are comparable to other technologies on
which the performance standards are based. Facilities that propose to
use restoration measures, in whole or in part, must demonstrate to the
Director that they have evaluated the use of design and construction
technologies and/or operational measures and found them to be less
feasible, less cost-effective, or less environmentally desirable than
meeting the applicable performance standards in whole or in part
through the use of restoration measures. The requirement to look at
design and construction technologies and/or
[[Page 41623]]
operational measures in order to ensure that facilities give due
consideration to the technologies on which the performance standards
are based.
Facilities must also demonstrate that the use of restoration
measures achieves performance levels that are substantially similar to
those that would be achieved under the applicable performance
standards. To address concerns regarding the uncertainty of restoration
measures, EPA has included, among other things, requirements for
uncertainty analysis, adaptive management plans, monitoring, and peer
review, if requested by the Director. Finally, EPA does not believe the
requirements for restoration measures are overly burdensome or
prescriptive as there is a need to ensure that these types of measures
achieve the anticipated environmental benefit. Moreover, under the
rule, facilities are provided at least three and one-half years to
submit their restoration plan and complete the required studies.
G. Costs
1. Facility-Level Costs
Generally, commenters were split regarding the national costs of
the rule. Industry commenters stated that the cost analysis presented
in the proposal underestimated the compliance costs in several facets
of the analysis, including capital costs of the technology, the site-
specific contingencies associated with retrofitting, and facility down
time. Several commenters stated that EPA underestimated the costs for
the monitoring requirements for both the characterization study in the
permit application and for verification monitoring. Other commenters
generally stated the opposite, arguing that EPA overestimated the
compliance costs, especially for installing cooling towers. Some
commenters stated that costs should not be a consideration in section
316(b) determinations.
The Agency significantly revised the approach to developing costs
for the NODA. Those revisions incorporated some of the comments on the
costing methodology for technologies that reduce impingement and
entrainment. EPA's approach to estimating the costs of the requirements
of the final rule reflect the NODA comments on the revised methodology,
and additional analyses. EPA, however, did not revise its estimates for
cooling towers subsequent to the NODA because it decided not to further
pursue this regulatory option for the reasons outlined more
specifically in Section VII. EPA believes that our costing of cooling
tower technology is appropriate as it is based on vendor and
engineering firm experience in developing costs for Phase II
facilities.
2. Market-Level Impacts
Numerous industry commenters stated that EPA significantly
underestimated the impacts to generators, consumers, reliability, and
energy supply. EPA disagrees with these commenters. EPA performed an
analysis of facility- and market-level impacts (including impacts to
generators, consumers, reliability, and energy supply) using the
Integrated Planning Model (IPM[reg]), which has been widely used in air
quality regulations and in other public policy arenas affecting the
electric power generation industry.
One commenter stated that the IPM analysis does not account for the
economic impacts of other regulatory programs. EPA disagrees with this
assertion. The IPM base case accounts for costs associated with current
federal and state air quality requirements, including future
implementation of SO2 and NOX requirements of
Title IV of the Clean Air Act and the NOX SIP call as
implemented through a cap and trade program. Because of its relative
newness, it does not account for costs associated with the Phase I
facility regulations.
One commenter stated that EPA justified the rule by using a cost-
to-revenue comparison and that this comparison neither measures
profitability nor represents the most efficient economic solution for
each facility. As discussed in Section VII. above, the economic
practicability of the Phase II regulation is based on the electricity
market model analyses using the IPM, not the cost-to-revenue ratio. The
cost-to-revenue ratio is only one of several additional measures EPA
used to assess the magnitude of compliance costs.
Some commenters stated that EPA did not properly take account of
differences between utilities, which own and operate rate-based
facilities, and nonutilities, which own and operate competitive
generating facilities. EPA disagrees with this comment. EPA believes
that in a deregulated market, the distinction between utilities and
nonutilities is no longer relevant. While such a distinction may have
been important in the past, when only a few unregulated nonutilities
competed with regulated utilities, this is no longer the case. The
share of Phase II facilities that are owned by unregulated entities has
increased from 2 percent in 1997 to 31 percent in 2001. By the time the
final rule will take effect, even more Phase II facilities that
currently operate under a rate-based system will be operating in a
competitive market. Furthermore, EPA does not believe that nonutilities
will be differentially impacted compared to utilities, even in the case
that deregulation might not have taken effect in all markets by the
time this rule is implemented. Competitive pressures, even in regulated
environments, will reduce the ability of utilities to pass on costs to
their consumers.
Some commenters stated that small or publicly owned facilities may
be significantly affected. EPA disagrees with this statement. EPA's
SBREFA analysis showed that this rule will not lead to a significant
economic impact on a substantial number of small entities (See Section
XIII.C below). While municipally owned facilities bear a relatively
larger compliance cost per MW of generating capacity than do facilities
owned by other types of entities, EPA's analyses show that these costs
are not expected to lead to significant economic impacts for these
facilities.
Some commenters stated that even a requirement to convert all
facilities to closed-cycle cooling would not significantly affect
energy supply and that the costs to facilities and consumers is small
and in some cases, overstated by EPA's analysis. EPA disagrees with
this statement. EPA considered several options that would require some
or all facilities to install closed-cycle recirculating systems and
rejected them on the basis of economic practicability and technological
feasibility. See Section VII.B for more detail on why EPA rejected
closed-cycle recirculating systems.
H. Benefits
In its analysis for section 316(b) Phase II Proposal, EPA relied on
nine case studies to estimate the potential economic benefits of
reduced impingement and entrainment. EPA extrapolated facility-specific
estimates to other facilities located on the same waterbody type and
summed the results for all waterbody types to obtain national
estimates. During the comment period on the proposed rule EPA received
numerous comments on the valuation approaches applied to evaluate the
proposed rule, including commercial and recreational fishing benefits,
non-use benefits, benefits to threatened and endangered species (T&E),
as well as on the methods used to extrapolate case study results to the
national level. EPA tried to address concerns raised by commenters on
the proposal in the revised methodology presented in the NODA and the
final rule analysis.
[[Page 41624]]
1. Benefits Analysis Design
A number of commenters expressed concern about EPA's reliance on a
few case studies and the extrapolation method used for estimating
benefits at the national level for the proposed rule analysis. The
commenters noted that even within the same waterbody type, there are
important ecological and socioeconomic differences among different
regions of the country. To address this concern, EPA revised the design
of its analysis to examine cooling water intake structure impacts at
the regional-scale. The estimated benefits were then aggregated across
all regions to yield the national benefits estimate. These analytical
design changes were presented in the NODA. No major comments were
received on EPA's regional benefit approach as described in the NODA.
2. Commercial Fishing Benefits
During the comment period on the proposed rule EPA received a
number of comments on the methods used to estimate producer surplus and
consumer surplus in the commercial fishing sector. Commenters felt that
the methods overestimated benefits. The new methods used by EPA assume
that producer surplus is 0% to 40% of gross revenues in the commercial
fishing sector. EPA also now assumes that the Phase II rule will not
create increases in commercial harvest large enough to impact prices.
Thus, no consumer surplus impact is estimated. Commenters on the NODA
noted these changes and agreed with them.
3. Recreational Fishing Benefits
A number of comments were received on the recreational fishing
benefits estimates EPA included in the proposal, which primarily relied
on a benefits transfer approach. Benefit transfer involves adapting
research conducted for another purpose in the available literature to
address the policy questions in hand. For more detail on the valuation
methods used in the final rule analysis, see Chapter A9 of the Regional
Analysis document (DCN 6-0003). For three of the nine case studies,
this analysis was supplemented by original revealed preference studies.
Revealed preference methods use observed behavior to infer users' value
for environmental goods and services. Examples of revealed preference
methods include travel cost, hedonic pricing, and random utility models
(RUM). For more detail on the revealed preference methods used in the
final rule analysis, see Chapters A9 and A11 of the Regional Analysis
document (DCN 6-0003). Although most commenters agreed that properly
executed benefits transfer is an appropriate method for valuing
nonmarket goods, they pointed out that original revealed preference
studies that provide site-specific recreational fishing benefit
estimates provide a superior alternative to benefits transfer. In
response to these comments, EPA developed original or used available
region-specific recreational angler behavior models, which provide
site-specific estimates of willingness-to-pay for improvements in
recreational fishing opportunities, to estimate recreational fishing
benefits from reduced impingement and entrainment for seven of the
eight study regions. Chapter A11 of the Regional Analysis document
provides detailed discussion of the methodology used in EPA's RUM
analysis (DCN 6-0003). Due to data limitations, EPA used a benefit
transfer approach to value recreation fishing benefits from reduced
impingement and entrainment in the Inland region.
4. Non-Use Benefits
Numerous comments were received on EPA's proposed non-use benefit
estimates. Most commenters agreed that non-use values are difficult to
estimate and that EPA's estimates of non-use benefits using the 50%
rule was inappropriate because it relies on outdated studies.
Commenters, however, disagreed as to whether EPA had vastly overstated
or underestimated non-use benefits in the proposed Phase II rule
analysis.
Some commenters stated that EPA's approach to estimating non-use
benefits of the proposed rule significantly overestimates total
benefits and that ecological benefits of the section 316(b) regulation
are negligible. Other commenters asserted that EPA's benefits estimates
significantly undervalued the total ecological benefits (including use
and non-use) of preventing fish kills. These commenters indicated that
it would be impossible to claim that the value of the unharvested
commercial and recreational and forage species lost to impingement and
entrainment was equal to zero. Reasons some commenters gave for the
underestimation of total benefits included the following: total losses
were underestimated by using outdated monitoring data for periods when
population levels (and therefore impingement and entrainment) were much
lower than the present; cumulative impacts were not sufficiently
considered; recreational and commercial values were underestimated;
commercial invertebrate species were ignored; ecological value of
forage species was not considered; non-use benefits were
underestimated; and secondary economic impacts were not included.
Overall these commenters argued that a net benefit underestimation
could be corrected by (1) assuming that non-use values were two times
the estimated value of recreation, commercial and forage values; and
(2) assuming that unharvested fish had a value greater than zero.
In response to public comments regarding the analysis of non-use
values in the proposed rule, EPA considered the results of several
different approaches to quantifying non-use values. The Agency points
out that none of the available methods for estimating either use or
non-use values of ecological resources is perfectly accurate; all have
shortcomings.
EPA has determined that none of the methods it considered for
assessing non-use benefits provided results that were appropriate to
include in this final rule, and has thus decided to rely on a
qualitative discussion of non-use benefits. The uncertainties and
methodological issues raised in the approaches considered could not be
resolved in time for inclusion in the rule. EPA continues to evaluate
various approaches for evaluating non-use benefits of CWA rules.
5. Habitat Replacement Cost (HRC)
Some commenters argued that the HRC methods are not legitimate
valuation methods because they concern costs, not benefits. However,
other commenters argued that although HRC analysis is not a benefit's
analysis in the strict economic sense it can provide a practical
approach to capturing the full range of ecosystem services and, thus,
is appropriate for evaluating the benefits of this rule. These
commenters further pointed out that ``restoration cost is used as a
measure of damages under CERCLA for Superfund sites, under the National
Marine Sanctuaries Act, and under the oil spill provisions of the Clean
Water Act. Use of restoration costs was explicitly upheld in the
landmark Ohio vs. Interior court decision of 1989.''
EPA has removed the disputed results of the HRC analyses from its
benefits estimates for the final rule. For the NODA, EPA revised the
HRC analysis presented in the proposed rule (see 67 FR 17191). Instead
of the costs of habitat replacement, EPA used estimated willingness-to-
pay values for the resource improvements that would be achieved by the
habitat replacement/restoration equivalents.
[[Page 41625]]
During the comment period on the NODA, EPA received a number of
comments on the revised habitat-based valuation method. Specifically,
several commenters questioned the appropriateness of using willingness
to pay values for habitat restoration as a ``proxy'' for either the
total value or the non-use value of the fishery resources that would be
preserved due to reduced impingement and entrainment. EPA explored this
approach to estimating non-use values for three case study regions: the
North Atlantic, Mid-Atlantic, and Great Lakes Regions. However, due to
limitations and uncertainties regarding the application of this
methodology, EPA elected not to include benefits based on this approach
in the costs and benefits analysis of the final section 316(b) rule.
6. Benefits to Threatened and Endangered Species.
Similarly to the HRC approach, commenters strongly disagreed about
the appropriateness of EPA using the societal revealed preference (SRP)
method to value benefits from reducing impingement and entrainment of
threatened and endangered species because these methods concern costs
not benefits. The SRP method uses (1) evidence of actions taken to
benefit a resource that were developed, approved, and implemented
voluntarily by government and quasi-government agencies and (2) data on
anticipated and actual expenditures required to complete the actions.
EPA has removed the disputed results of the societal revealed
preference analyses from its benefits estimates for the final rule
because the uncertainties and methodological issues raised in the
approaches considered could not be resolved in time for inclusion in
the rule.
Some commenters argued that benefits transfer is the second best
approach to estimating benefits from improved protection of threatened
and endangered species if conducting an original stated preference
study is not feasible. Specifically, the commenters recommended that
EPA use benefits transfer for valuing improved protection of threatened
and endangered species instead of the societal revealed preference
method. In response to these comments, EPA has explored a benefits
transfer approach to valuing improved protection of threatened and
endangered species due to the final section 316(b) regulation. For
detail, see Chapters A13 and B6 of the Regional Analysis document (DCN
6-0003). EPA, however, notes that benefits based on this method were
not included in the benefit cost analysis of the final section 316(b)
rule due to the uncertainties and limitations discussed in Section A13-
6.1 of the Regional Study document (see DCN 6-0003).
7. Timing of Benefits
During the comment period on the proposed rule, EPA received a
number of comments on the time at which benefits of the rule accrue to
society. The commenters assert that the estimated commercial and
recreational fishing benefits are overstated because timing of benefits
was not taken into account. Specifically, the commenters argue that
benefits could not be fully realized until installation of the cooling
technology is completed and enough years pass after that first year of
reduced impingement and entrainment mortality such that every fish
avoiding impingement and entrainment in that year can be harvested by
commercial and recreational fishermen. In response to public comments
on the proposed rule analysis, EPA revised recreational and commercial
fishing benefits analysis to account for a one-year construction period
required to install CWIS technology to reduce impingement and
entrainment, and a time lag between impingement and entrainment
cessation and the time when recreational and commercial fish species
will be large enough to be harvested. In accounting for a delay in
benefits, EPA used both a three percent and a seven percent discount
rate as recommended by OMB requirements.
I. EPA Legal Authority
1. Authority To Set a National Standard for Cooling Water Intake
Structures
Some commenters challenged EPA's authority to set a national
standard for cooling water intake structures, arguing that CWA section
316(b) requires EPA to provide a site-specific assessment of ``best
technology available to minimize adverse environmental impact.'' These
commenters maintain that the language and legislative history of CWA
section 316(b), the objectives of the CWA, and prior EPA practice of
site-specific application of CWA section 316(b) preclude EPA from
setting a national standard under this rule.
EPA is authorized under section 501(a) of the Clean Water Act ``to
prescribe such regulations as are necessary to carry out [its]
functions'' under the Clean Water Act. Moreover, EPA interprets CWA
section 316(b) to authorize national requirements for cooling water
intake structures. CWA section 316(b) applies to sources subject to CWA
sections 301 and 306, which authorize EPA to promulgate national
categorical effluent limitations guidelines and standards for direct
dischargers of pollutants. The reference in CWA section 316(b) to these
sections indicates that Congress expected that CWA section 316(b)
requirements, like those of CWA sections 301 and 306, could be applied
as a national, categorical standard. Cronin v. Browner, 898 F. Supp.
1052, 1060 (1995) (``EPA was also free to choose, as it did, to
implement section 316(b) by issuing one overarching regulation that
would apply to all categories of point source subject to sections 301
and 306 that utilize cooling water intake structures.''); see also
Virginia Electric Power Co. v. Costle, 566 F. 2d 446 (1977).
2. Authority To Consider Cost in Establishing Performance Standards and
Compliance Options
Some commenters objected to EPA's consideration of costs in the
determination of BTA. These commenters note that CWA section 316(b)
does not expressly mention compliance costs, in contrast to other
technology-based provisions of the CWA, which explicitly direct EPA to
consider such costs. If Congress had intended that EPA consider costs
under section 316(b), they argue, it would have expressly directed the
EPA to do so.
EPA believes that it legitimately considered costs in establishing
``best technology available'' under CWA section 316(b). Although CWA
section 316(b) does not define the term ``available,'' it expressly
refers to CWA sections 301 and 306--both of which require EPA to
consider costs in determining the ``availability'' of a technology.
Specifically, CWA section 301(b)(1)(A) requires certain existing
facilities to meet effluent limitations based on ``best practicable
control technology currently available,'' which requires
``consideration of the total cost of application of technology in
relation to the effluent reduction benefits to be achieved from such
application.'' 33 U.S.C. 1314(b)(1)(B). Similarly, CWA section
301(b)(2)(A) requires application of the ``best available technology
economically achievable,'' which in turn requires consideration of
``the cost of achieving such effluent reduction.'' 33 U.S.C.
1314(b)(2)(B). Finally, CWA section 306(b)(1)(B), which governs the
effluent discharge standards for new sources, expressly states that in
establishing the ``best available demonstrated control technology'' the
Administrator shall take into consideration ``the cost of achieving
such effluent reduction'' 33 U.S.C. 1316(b)(1)(B). Although these
standards
[[Page 41626]]
are somewhat different, each mandates the consideration of costs in
establishing the technology-based standard. Because CWA sections 301
and 306 are expressly cross-referenced in CWA section 316(b), EPA
believes that it reasonably interpreted CWA section 316(b) as
authorizing consideration of the same factors considered under CWA
sections 301 and 306, including cost. EPA's interpretation of section
316(b) as authorizing a consideration of costs was explicitly upheld in
litigation on the Phase I new facilities rule. Riverkeeper v. EPA, slip
op. at 28 (2nd Cir., Feb. 3, 2004).
EPA's interpretation is supported by the legislative history of CWA
section 316(b): `` `best technology available' should be interpreted as
best technology available at an economically practicable cost.'' See
118 Cong. Rec. 33,762 (1972), reprinted in 1 Legislative History of the
Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. at
264 (Comm. Print 1973) (Statement of Representative Don H. Clausen).
EPA's interpretation of CWA section 316(b) is also consistent with
judicial interpretations of the section. See, e.g., Seacoast Anti-
Pollution League v. Costle, 597 F.2d 306, 311 (1st Cir. 1979) (``The
legislative history clearly makes cost an acceptable consideration in
determining whether the intake design `reflect[s] the best technology
available' ''); Hudson Riverkeeper Fund, Inc. v. Orange & Rockland
Util., Inc. 835 F. Supp. 160, 165-66 (S.D.N.Y. 1993).
3. Authority To Allow Site-Specific Determination of BTA To Minimize
AEI Based on a Cost-Cost Comparison
The final rule allows a facility to pursue a site-specific
determination of ``best technology available to minimize adverse
environmental impact'' where the facility can demonstrate that its
costs of compliance under the compliance alternatives in
Sec. 125.94(a)(2) through (4) would be significantly greater than the
costs considered by the Administrator for a like facility in
establishing the performance standard.
Some commenters argue that CWA section 316(b) does not authorize
EPA to provide for a site-specific assessment of ``best technology
available.'' These commenters argued that EPA was required under CWA
section 316(b) to set a national standard for ``best technology
available'' (BTA), at least as stringent as the national standard for
``best available technology'' (BAT) under CWA section 301. These
commenters asserted that the similar wording of the BTA and BAT
requirements, and the fact that CWA section 316(b) explicitly
references CWA section 301 as the basis for its application, indicates
legislative intent to equate BTA with BAT and thus requires a
national--not site-specific--standard.
EPA disagrees. The CWA section 316(b) authorizes a site-specific
determination of BTA. Although, the CWA section 316(b) authorizes EPA
to promulgate national categorical requirements, EPA also notes that
the variety of factors to be considered in determining these
requirements--such as location and design--indicate that site-specific
conditions can be highly relevant to the determination of BTA to
minimize adverse environmental impact. In addition to specifying ``best
technology available'' in relation to a national categorical
performance standard, today's rule also authorizes a site-specific
determination of BTA when conditions at the site lead to a more costly
array of controls than EPA had expected would be necessary to achieve
the applicable performance standards.
This site-specific compliance option is similar to the
``fundamentally different factors'' provision in CWA section 301(n),
which authorizes alternative requirements for sources subject to
national technology-based standards for effluent discharges, if the
facility can establish that it is fundamentally different with respect
to factors considered by EPA in promulgating the national standard. The
fundamentally different factors provision was added to the CWA in 1987,
but prior to the amendment, both the Second Circuit and the Supreme
Court upheld EPA's rules containing provisions for alternative
requirements as reasonable interpretations of the statute. NRDC v. EPA,
537 F.2d 642, 647 (2d Cir. 1976) (``the establishment of the variance
clause is a valid exercise of the EPA's rulemaking authority pursuant
to section 501(a) which authorizes the Administrator to promulgate
regulations which are necessary and proper to implement the Act''); EPA
v. National Crushed Stone Ass'n, 449 U.S. 64 (1980) (approving EPA's
alternative requirements provision in a standard adopted pursuant to
CWA section 301(b)(1), even though the statute did not expressly permit
a variance.) EPA's alternative site-specific compliance option in this
rule is similarly a reasonable interpretation of section 316(b) and a
valid exercise of its rulemaking authority under CWA section 501.
Based on this interpretation, EPA and State permitting authorities
have been implementing CWA section 316(b) on a case by case basis for
over 25 years. Such a case-by-case determination of BTA has been
recognized by courts as being consistent with the statute. See Hudson
Riverkeeper Fund v. Orange and Rockland Util, 835 F. Supp. 160, 165
(S.D.N.Y. 1993) (``This leaves to the permit writer an opportunity to
impose conditions on a case by case basis, consistent with the
statute'').
Some commenters specifically challenged EPA's authority to consider
costs in its site-specific assessment of best technology available.
However, as discussed earlier, EPA reasonably interprets CWA section
316(b) to authorize it to consider costs of compliance in determining
best technology ``available.'' Therefore, where EPA fails to consider a
facility's unusual or disproportionate costs in setting the national
requirements for ``best technology available,'' it reasonably
authorizes permit authorities to set site-specific alternative limits
to account for these costs. See Riverkeeper v. EPA, slip op. at 25 (2nd
Cir. Feb. 3, 2004) (upholding site-specific alternative limits under
the Phase I rule for new facilities where a particular facility faces
disproportionate compliance costs.)
In addition, EPA notes that--contrary to some commenters'
assertions--the rule does not in fact authorize permitting authorities
to consider a facility's ``ability to pay'' in its site-specific
assessment of BTA. It only allows consideration of whether the facility
has unusual or disproportionate compliance costs relative to those
considered in establishing the performance standards--not whether the
facility has the financial resources to pay for the required
technology. Moreover, in setting the alternative BTA requirements, the
permit authorities may depart from the rule's national technology-based
standards only insofar as necessary to account for the unusual
circumstances not considered by the Agency during its rulemaking.
4. Authority To Allow Site-Specific Assessment of BTA Where Facility's
Costs of Compliance Are Significantly Greater Than Benefits of
Compliance
Some commenters objected to the second site specific regulatory
option--authorizing a site-specific determination of best technology
available where the facility can demonstrate that its costs of
compliance under Sec. 125.94(a)(2) through (4) would be significantly
greater than the benefits of complying with the applicable performance
requirements at the facility. These commenters argue that a cost-
benefit decision making criterion is not authorized under the CWA. Many
of these commenters assert
[[Page 41627]]
that while it may be reasonable for EPA to exclude technologies if
their costs are ``wholly disproportionate'' to the benefits to be
achieved, EPA lacks the statutory authority to conduct a formal cost/
benefit analysis to determine the best technology available on a site-
specific basis.
EPA believes that the Clean Water Act authorizes a site-specific
determination of the best technology available to minimize adverse
environmental impact where the costs of compliance with the rule's
performance standards are significantly greater than its benefits. This
authority stems from the statutory language of CWA section 316(b). As
discussed in Section III above, Section 316(b) requires that cooling
water intake structures reflect the best technology available for
minimizing adverse environmental impact. The object of the ``best
technology available'' is explicitly articulated by reference to the
receiving water: to minimize adverse environmental impact in the waters
from which cooling water is withdrawn. In contrast, under section 301
the goal of BAT is explicitly articulated by reference to a different
purpose, to make reasonable further progress toward the national goal
of eliminating the discharge of all pollutants (section 301(b)(2)(A)).
Similarly, under section 304, the goal of BPT and BCT is explicitly
articulated by reference to the degree of effluent reduction
attainable. (section 304(b)(1)(A) and section 304(b)(4)(A)). EPA has
previously considered the costs of technologies in relation to the
benefits of minimizing adverse environmental impact in establishing
316(b) limits, which historically have been done on a case-by-case
basis. See, e.g., In Re Public Service Co. of New Hampshire, 10 ERC
1257 (June 17, 1977); In Re Public Service Co. of New Hampshire, 1 EAD
455 (Aug. 4, 1978); Seacoast Anti-Pollution League v. Costle, 597 F. 2d
306 (1st Cir. 1979). Under CWA section 316(b), EPA may consider the
benefits that the technology-based standard would produce in a
particular waterbody, to ensure that it will ``minimize adverse
environmental impact.'' EPA believes that the technology-based
standards established in this final rule will, as a national matter,
``minimize adverse environmental impact.'' However, the degree of
minimization contemplated by the national performance standards may not
be justified by site-specific conditions. In other words, depending on
the circumstances of the receiving water, it may be that application of
less stringent controls than those that would otherwise be required by
the performance standards will achieve the statutory requirement to
``minimize'' adverse environmental impact, when considered in light of
economic practicability. An extreme example is a highly degraded ship
channel with few fish and shellfish, but such situations can only be
identified and addressed through a site-specific assessment.
For these reasons, EPA reasonably interprets the phrase ``minimize
adverse environmental impact'' in section 316(b) to authorize a site-
specific consideration of the benefits of the technology-based standard
on the receiving water. EPA continues to believe that any impingement
or entrainment would be an adverse environmental impact, but has
determined that 316(b) does not require minimization of adverse
environmental impact beyond that which can be achieved at a cost that
is economically practicable. EPA believes that the relationship between
costs and benefits is one component of economic practicability for
purposes of section 316(b), and as noted previously, the legislative
history indicates that economic practicability may be considered in
determining what is best technology available for purposes of 316(b).
EPA believes that allowing a relaxation of the performance standards
when costs significantly exceed benefits, but only to the extent
justified by the significantly greater costs, is a reasonable way of
ensuring that adverse environmental impact be minimized at an
economically practicable cost. This does not mean that there is a need
to make a finding of ``adverse environmental impact'' before
performance standard based CWA section 316(b) requirements would apply.
Rather, EPA is authorizing an exception to performance standard based
requirements on a site-specific basis in limited circumstances: when
the costs of complying with the national performance standards are
significantly greater than the benefits of compliance at a particular
site.
5. Authority To Allow Restoration To Comply With the Rule Requirements
The final rule authorizes the use of restoration measures that
produce and result in increases of fish and shellfish in a facility's
watershed in place of, or as a supplement to, installing design and
control technologies and/or operational measures that reduce
impingement mortality and entrainment. Restoration measures can include
a wide range of activities including measures to enhance fish habitat
and reduce stresses on aquatic life; creation of new habitats to serve
as spawning or nursery areas, and creation of a fish hatchery and/or
restocking of fish being impinged and entrained with fish that perform
a substantially similar function in the aquatic community.
While the Phase I rule also authorized use of restoration measures,
today's rule includes additional regulatory controls on the use of
restoration measures to ensure that they are used appropriately to
comply with the applicable performance requirements or site specific
alternative requirements. For example, restoration measures are
authorized only after a facility demonstrates to the permitting
authority that it has evaluated other design and construction
technologies and operational measures and determined that they are less
feasible, less cost-effective, or less environmentally desirable than
meeting the performance standards or alternative site-specific
requirements in whole or in part through the use of restoration
measures. The facility must also demonstrate that the proposed
restoration measures will produce ecological benefits (i.e., the
production of fish and shellfish for the facility's waterbody or
watershed, including maintenance of community structure and function)
at a level that is substantially similar to the level a facility would
achieve through compliance with the applicable performance standards or
alternative site-specific requirements. Further, the permitting
authority must review and approve the restoration plan to determine
whether the proposed restoration measures will meet the applicable
performance standards or site specific alternative requirements.
Consequently, the restoration provisions of today's rule are designed
to minimize adverse environmental impact to a degree that is comparable
to the other technologies on which the rule is based.
The use of restoration to meet the requirements of section 316(b)
is consistent with the goals of the Clean Water Act: measures that
restore fish and shellfish to compensate for those that are impinged
and entrained further the objective of the Clean Water Act ``to
restore, maintain, and protect the biological integrity of the nation's
waters.'' 33 U.S.C. 1251(a) (emphasis added). It is also consistent
with EPA's and States' past practices in implementing section 316(b) in
individual permit decisions. For at least twenty years, EPA and States
have authorized existing facilities to comply with section 316(b)
requirements, at least in part, through the use of restoration
measures. For example, the Chalk Point Generating Station, located on
the Patuxent River in Prince George's
[[Page 41628]]
County, Maryland constructed a fish rearing facility in partial
compliance of its 316(b) obligations (DCN-1-5023-PR).
Although the United States Court of Appeals for the Second Circuit
recently remanded the portion of EPA's Phase I new facility rule that
authorized restoration measures to meet that rule's requirements, EPA
believes that portion of the decision should not apply to this Phase II
rulemaking. Indeed, the Second Circuit explicitly stated that ``[i]n no
way [does it] mean to predetermine the factors and standard applicable
to Phase II and III of the rulemaking.'' Riverkeeper v. EPA, slip op.
at 12, note 13 (2nd Cir. Feb. 3, 2004). This is probably because there
are important differences between new and existing facilities that
warrant interpreting section 316(b) more broadly to give existing
facilities additional flexibility to comply with section 316(b). As
noted above, restoration measures have been used to comply with section
316(b) limits at existing facilities for several years because of the
more limited availability of other technologies for existing
facilities. Costs to retrofit an existing facility to install a
``hard'' technology can be much higher than costs to install one at the
time a facility is constructed, and those costs can vary considerably
from site to site. Thus, the range of technologies that are
``available'' to existing facilities to meet the performance standards
is narrower than the range of technologies available to new facilities.
In recognition of the vast differences between existing and new
facilities, Congress established separate sections in the Clean Water
Act for establishing discharge limitations on existing and new
facilities. Effluent limitations guidelines for existing facilities are
established under sections 301 and 304, whereas new source performance
standards are established under section 306. Those sections set out two
distinct sets of factors for developing effluent limitations guidelines
for existing facilities and new source performance standards for new
facilities. Notably, there are only two factors explicitly stated in
section 306 for the Administrator to consider in establishing new
source performance standards--cost and non-water quality impacts,
whereas for existing facilities Congress calls upon EPA to consider a
much broader range of factors in section 304(b)(2)(b):
the age of equipment and facilities involved, the process employed,
the engineering aspects . . . of various types of control
techniques, process changes, the cost of achieving such effluent
reduction, non-water quality environmental impacts (including energy
requirements), and such other factors as [EPA] deems appropriate.
This list reflects the wide range of facility characteristics and
circumstances that can influence the feasibility and availability of a
particular technology across a particular industry. Existing facilities
generally face more and different problems than new facilities because
of the technological challenges and high costs associated with
retrofitting as compared to building a new facility. Indeed, by
including the phrase ``and such other factors as [EPA] deems
appropriate,'' Congress made certain that EPA would have sufficient
flexibility in establishing limitations for existing facilities to
consider all relevant factors.
For several other reasons, EPA believes the Second Circuit decision
is not binding on this Phase II rule. First, section 316(b) requires
the design of a cooling water intake structure to reflect the best
technology available to ``minimize adverse environmental impact.'' The
phrase ``minimize adverse environmental impact `` is not defined in
section 316(b). For the Phase II rule, EPA interprets this phrase to
allow facilities to minimize adverse environmental impact by reducing
impingement and entrainment, or to minimize adverse environmental
impact by compensating for those impacts after the fact. Section 316(b)
does not explicitly state when the adverse environmental impact of
cooling water structures must be minimized--that is whether they must
be prevented from occurring in the first place or compensated for after
the fact or where the minimization most occurs--at the point of intake
or at some other location in the same watershed. Therefore, under
Chevron, EPA is authorized to define ``minimize'' to authorize
restoration at existing facilities to minimize the effects of adverse
environmental impact.
In another context under the Clean Water Act, EPA has interpreted
authority to ``minimize adverse effects'' as including authority to
require environmental restoration. Section 404 of the CWA authorizes
the Army Corps of Engineers to issue permits for discharges of dredged
or fill material into waters of the United States. EPA was granted
authority to establish regulations containing environmental guidelines
to be met by the Corps in issuing section 404 permits. See CWA section
404(b)(1). Current regulations, in place since 1980, prohibit a
discharge unless, among other requirements, all practicable steps are
taken to avoid, minimize and mitigate for the environmental effects of
a discharge. See 40 CFR 230.10. Of particular relevance here, the
regulations require that steps be taken to ``minimize potential adverse
effects of the discharge on the aquatic ecosystem'' 40 CFR 230.10(d).
EPA has specifically defined minimization steps to include
environmental restoration. See 40 CFR 230.75(d) (``Habitat development
and restoration techniques can be used to minimize adverse impacts and
to compensate for destroyed habitat'').
Moreover, at the time of the Phase I litigation, EPA had not
interpreted the term ``reflect'' in section 316(b), and therefore, the
Second Circuit did not consider its meaning in determining whether
restoration could be used as a design technology to meet the Phase I
rule requirements. Section 316(b) requires that ``the location, design,
construction, and capacity of cooling water intake structures reflect
the best technology available for minimizing adverse environmental
impact.'' (emphasis supplied). The term ``reflect'' is significant in
two respects. First, it indicates that the design, location,
construction and capacity of the cooling water intake structure itself
must be based on the best technology available for such structures.
This authorizes EPA to identify technologies that can be incorporated
into the physical structure of the intake equipment. It also indicates
that the choice of what actually is the best physical configuration of
a particular cooling water intake structure can take into account,
i.e., reflect, other technologies--and their effects--that are not
incorporated into the structure itself. For example, barrier nets are
not incorporated into the physical design of the cooling water intake
structure, but their use--and effectiveness--influences the physical
design of the cooling water intake structure. Another relevant example
is the technology known as ``closed-cycle'' cooling. Although this
technology is physically independent of the cooling water intake
structure, it directly influences decisions regarding the design
capacity of the cooling water intake structure: as more cooling water
is recycled, less needs to be withdrawn. Both barrier nets and closed-
cycle cooling are considered ``design'' technologies. Similarly,
properly designed restoration measures can be best technologies
available that can influence the design of the physical cooling water
intake structure. To put it another way, for purposes of minimizing
adverse environmental impact, requirements for cooling water intake
structures reflect a variety of best technologies available, which EPA
[[Page 41629]]
construes to include restoration measures. A dry cooling system is
another example of a technology that although physically independent of
the cooling water intake structure is nonetheless considered an
acceptable method to minimize adverse environmental impacts. In fact,
since a dry cooling system uses air as a cooling medium, it uses little
or no water, dispensing altogether with the need for a cooling water
intake structure.
EPA has discretion to characterize restoration measures as
technologies for purposes of section 316(b). Section 316(b) does not
define either the phrase ``cooling water intake structure'' or the term
``technology'' and, therefore, leaves their interpretation to EPA. EPA
has defined the phrase cooling water intake structure in today's rule
to mean the total physical structure and any associated waterways used
to withdraw cooling water from waters of the United States. This
definition embraces elements both internal and external to the intake
equipment. EPA did not define the term technology in today's rule, but
looked for guidance to section 304(b), which the Second Circuit has
recognized can help illuminate section 316(b). Section 301(b)(2) best
available technology limitations are based on factors set forth in
section 304(b). Section 304(b), while not using the term technology,
discusses the ``application of the best control measures and practices
achievable including treatment techniques, process and procedure
innovations, operating methods, and other alternatives.'' This is a
broad, non-exclusive list. Indeed, BAT effluent limitations guidelines
under this authority have been based on a vast array of treatment
techniques, operation practices (including chemical substitution), and
management practices. See 40 CFR Part 420 (effluent guidelines for
concentrated animal feeding operations); 40 CFR Part 430, Subparts B &
E (effluent guideline for pulp and paper industry); See also 62 FR
18504 (April 15, 1998).
Employing this broad concept of technology, in today's rule EPA has
determined that the design of cooling water intake structures may
reflect technologies relating to the restoration of fish and shellfish
in the waters from which cooling water is withdrawn. Restoration is not
included in the definition of ``design and construction technology'' in
today's rule so as to distinguish restoration from ``hard''
technologies for purposes of the rule. Under the regulatory scheme of
the final rule, restoration is treated differently than other
technologies for several purposes, all of which are to help ensure that
restoration projects achieve substantially similar performance as
design and construction technologies and/or operational measures. When
these restoration technologies are used they must produce ecological
benefits (the production of fish and shellfish for a facility's
waterbody or watershed, including maintenance of community structure
and function) at a level that is substantially similar to the level the
facility would achieve by using other design and construction
technologies and/or operational measures to achieve the applicable
performance standards or alternative site-specific performance
requirements in Sec. 125.94. In other words, the operation of the
cooling water intake structure together with these restoration
technologies will achieve the overall performance objective of the
statute: to minimize the adverse environmental impact of withdrawing
cooling water. For facilities using this authority, their hardware
decisions for the cooling water intake structure thus take into
account--or reflect--the impacts of restoration technology.
EPA acknowledges that in 1982, when Congress was considering
substantial amendments to the Clean Water Act, EPA testified in support
of a proposed amendment to CWA section 316(b) that would have expressly
authorized the use of restoration measures as a compliance option,
suggesting that EPA may have interpreted section 316(b) at that time as
not authorizing restoration measures to minimize the adverse
environmental impact of cooling water intake structures. In EPA's view,
the Second Circuit gave undue weight to that testimony, particularly
because it was provided before the Supreme Court's decision in Chevron
U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), which
gave administrative agencies latitude to fill in the gaps created by
ambiguities in statutes the agencies have been charged by Congress to
implement. For at least twenty years, EPA and States have authorized
existing facilities to comply with section 316(b) requirements, at
least in part, through the use of restoration measures. Additionally,
since 1982 EPA has gathered substantially more data to inform its
judgment regarding cooling water intake structures, the environmental
impact resulting from them, and various technologies available to
reduce impingement and entrainment. Finally, EPA notes that, in
contrast to water quality based effluent limitations that are included
in NPDES permits to meet water quality standards, the required
performance of restoration measures under this final rule is not tied
to conditions in the water body. Rather it is tied directly to the
performance standards, just as is the performance of the other
technologies that facilities may use to meet the standards. While the
design and operation of restoration measures will necessarily be linked
to conditions in the waterbody (as is also the case for ``hard''
technologies) the performance standards that restoration measures must
meet are not.
6. Authority To Apply CWA Section 316(b) Requirements to Existing
Facilities
Some commenters argued that CWA Sec. 316(b) does not apply to
existing facilities, but rather authorizes only a one-time, pre-
construction review of cooling water intake structure location, design,
construction and capacity.
EPA disagrees with this assertion. CWA section 316(b) applies to
``any standard established pursuant to section 1311 [CWA section 301]
or section 1316 [CWA section 306].'' CWA section 301 establishes the
statutory authority for EPA to promulgate technology-based standards
for effluent discharges from existing sources. Therefore, CWA section
316(b) requirements can, and indeed must, apply to existing facilities.
Given that section 316(b) requirements apply to existing facilities,
such requirements cannot reasonably be viewed as mandating only a one-
time, pre-construction review. Moreover, as the court noted in
Riverkeeper v. EPA, slip op. at 44-45 (2nd Cir. Feb. 3, 2004), ``if
Congress intended to grandfather in new or modified intake structures
as well as the related point sources that discharge heat, it could have
done so in section 316(c).''
7. Authority To Regulate ``Capacity'' of the ``Intake Structure''
Through Restrictions on Flow Volume
Some commenters asserted that EPA was not authorized to require
closed-cycle cooling systems, pointing out that CWA section 316(b)
addresses cooling water ``intake structures,'' not cooling systems or
cooling operations. EPA's performance standards based on closed-cycle
cooling, they argued, constitutes an impermissible restriction of the
cooling system or operation, which is not part of the ``intake
structure'' itself. Others asserted that the term ``capacity,'' as used
in CWA section 316(b), refers to the size of the cooling water intake
structure, not the volume of flow through the intake. They therefore
questioned EPA's authority to regulate flow volume by requiring the use
of closed-cycle cooling systems.
[[Page 41630]]
The rule does not in fact require the use of closed-cycle cooling
systems. Rather, the rule provides facilities with five different
compliance options, only one of which is based on closed-cycle cooling
technology. Moreover, EPA is authorized to set performance standards
based on closed-cycle cooling technology, as it did in the Phase I
rule, which was upheld in Riverkeeper v. EPA, slip op. (2nd Cir. Feb.
3, 2004). See also Section III.
8. Authority To Determine That Technologies Short of Closed-cycle
Cooling Constitute ``Best Technology Available To Minimize Adverse
Environmental Impact''
Many commenters asserted that closed-cycle cooling is the ``best
technology available to minimize adverse environmental impact,'' and
that EPA must therefore require facilities to reduce their cooling
water intake capacity to a level commensurate with closed-cycle
cooling. According to these commenters, this rule violates CWA section
316(b) by adopting performance standards less protective than ``best
technology available.''
EPA reasonably rejected closed-cycle cooling systems as ``best
technology available'' based on consideration of relevant factors,
including the costs of closed-cycle cooling, the energy impacts, the
relative effectiveness of closed-cycle cooling in minimizing
impingement and entrainment in variable waterbodies, and the
availability of other design and control technologies that can be
effective in significantly reducing environmental impacts. As the court
held in Riverkeeper v. EPA, slip op. at 29 (2nd Cir. Feb. 3, 2004),
``the Clean Water Act allows EPA to make a choice among alternatives
based on more than impingement and entrainment.'' In short, EPA has
discretion to consider a variety of factors besides the efficacy of
technologies, including cost, and to compare the relative effectiveness
of technologies that reduce impingement and entrainment. EPA's weighing
of the factors is entitled to a high degree of deference. See also
Section III and VII.
9. Authority To Require Implementation of CWA Section 316(b) Through
NPDES Permits
Some commenters argued that EPA lacks authority to include section
316(b) requirements in section 402 NPDES permits, because--unlike
sections 301, 306, and 402--section 316(b) regulates ``intakes'' and
not ``discharges.''
EPA disagrees with this comment. This rule properly requires
implementation of CWA section 316(b) standards through CWA section 402
NPDES permits. CWA section 402(a)(1) authorizes the issuance of NPDES
permits for discharges that comply with effluent guidelines limitations
under CWA sections 301 and 306. CWA section 316(b) requirements can be
implemented through CWA section 402 because they apply to all point
sources subject to standards issued under CWA sections 301 and 306.
See, U.S. Steel Corp v. Train, 556 F.2d 822, 850 (7th Cir. 1977)
(finding that CWA section 402 implicitly requires that CWA section
316(b) be implemented through NPDES permits). EPA's choice of NPDES
permits, which already reflect CWA sections 301 and 306 effluent
limitations, is reasonable.
10. Authority To Implement CWA Section 316(b) Requirements Without
Compensating Regulated Entities for ``Taking'' of Property
Several commenters suggest that this rule authorizes an
impermissible regulatory taking. Specifically, they argue that the rule
requires facilities to limit their intake flows, thus impairing their
property rights to the water and entitling them to compensation under
the Fifth Amendment to the U.S. Constitution.
EPA notes, however, that the rule does not in fact require a
facility to limit its intake flows. Rather, it provides a facility with
a variety of compliance options, only one of which is based on flow
limitations. While a facility could choose to comply with the section
316(b) requirements by reducing its intake flow to a level commensurate
with a closed-cycle cooling system (the first compliance option), it
could also select one of the other compliance options that does not
require flow restrictions. EPA therefore believes that this rule does
not authorize a compensable ``taking'' of property within the meaning
of the Fifth Amendment.
IX. Implementation
As in the Phase I rule, section 316(b) requirements for Phase II
existing facilities will be implemented through the NPDES permit
program. Today's final rule establishes application requirements in
Sec. Sec. 122.21 and 125.95, monitoring requirements in Sec. 125.96,
and record keeping and reporting requirements in Sec. 125.97 for Phase
II existing facilities. The final regulations also require the Director
to review application materials submitted by each regulated facility
and include monitoring and record keeping requirements in the permit
(Sec. 125.98). EPA will develop a model permit and permitting guidance
to assist Directors in implementing these requirements. 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 record
keeping and reporting requirements in these final regulations.
In this final rule, an existing facility may choose one of five
compliance alternatives for establishing best technology available for
minimizing adverse environmental impact at the site:
(1) Demonstrate that it will reduce or has reduced its intake flow
commensurate with a closed-cycle recirculating system and is therefore
deemed to have met the impingement mortality and entrainment
performance standards, or that it will reduce or has reduced the design
intake velocity of its cooling water intake structure to 0.5 feet per
second (ft/s) and is therefore deemed to have met the impingement
mortality performance standards;
(2) Demonstrate that its existing design and construction
technologies, operational measures, and/or restoration measures meet
the performance standards and/or restoration requirements;
(3) Demonstrate that it has selected and will install and properly
operate and maintain 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 specified performance
standards and/or restoration requirements;
(4) Demonstrate that it meets the applicability criteria for a
rule-specified technology or a technology that has been pre-approved by
the Director and that it has installed, or will install, and will
properly operate and maintain the technology; or,
(5) Demonstrate that it is eligible for a site-specific
determination of best technology available to minimize adverse
environmental impact and that it has selected, installed, and is
properly operating and maintaining, or will install and properly
operate and maintain design and construction technologies, operational
measures, and/or restoration measures that the Director has determined
to be the best technology available to minimize adverse environmental
impact for the facility.
The application, monitoring, record keeping, and reporting
requirements for
[[Page 41631]]
each of the compliance alternatives are detailed in the following
sections.
A. When Does the Final Rule Become Effective?
This rule becomes effective sixty (60) days after the date of
publication in the Federal Register. After the effective date of the
regulation, existing facilities will need to comply when an NPDES
permit containing requirements consistent with Subpart J is issued to
the facility (see Sec. 125.92). Under current NPDES program
regulations, this will occur when an existing NPDES permit is reissued
or, when an existing permit is modified or revoked and reissued. Under
today's rule, a facility that is required to comply with this rule
within the first four years after the publication date of this rule may
request that the Director approve an extended schedule for submitting
its Comprehensive Demonstration Study. This schedule must be as
expeditious as practicable and not extend beyond three years and 180
days after the publication date of the final rule. The Comprehensive
Demonstration Study, once submitted, forms the basis for the Director's
determination of specific requirements consistent with Subpart J to be
included in the permit. EPA has included this provision to afford
facilities time to collect information and perform studies, including
pilot studies where necessary, needed to support the development of the
Comprehensive Demonstration Study.
Between the time the existing permit expires and the time an NPDES
permit containing requirements consistent with this subpart is issued
to the facility, permit requirements reflecting the best technology
available to minimize adverse environmental impact will continue to be
determined based on the Director's best professional judgement.
B. What Information Must I Submit to the Director When I Apply for My
Reissued NPDES Permit?
The NPDES regulations governing the permit application process at
40 CFR 122.21 require that facilities currently holding a permit submit
an application for permit renewal 180 days prior to the end of the
current permit term, which is five years (see Sec. 122.21(d)(2)). If
you are the owner or operator of a facility that is subject to this
final rule, you will be required to submit the information specified at
40 CFR 122.21(r)(2), (3), and (5) and all applicable sections of Sec.
125.95, except for the Proposal for Information Collection, with your
application for permit reissuance.
The Proposal for Information Collection component of Sec. 125.95
should be submitted to the Director for review and comment prior to the
start of information collection activities. For a typical facility that
plans to install a technology, it is estimated that a facility would
need to submit this Proposal for Information Collection about fifteen
(15) months prior to the submission of the remainder of the required
information, which is about twenty-one (21) months prior to the
expiration of your current permit. This approximate timing is based on
the sequential Comprehensive Demonstration Study requirements and the
estimated level of effort required to complete the studies and allow
time for the Director's review and approval. The timing provided in
this section is for illustrative purposes only and represents a
schedule that the average facility may need to follow to meet the
deadlines established in today's rule. Some facilities may require
more, or less time to perform the studies and prepare the application
requirements. All facilities, except those that choose to comply with
the rule by reducing intake capacity to a level commensurate with a
closed-cycle recirculating system in accordance with Sec.
125.94(a)(1)(i), or by adopting a pre-approved technology in accordance
with Sec. 125.94(a)(4) must submit a Proposal for Information
Collection for review and comment by the Director (Sec. 125.95(b)(1)).
Facilities that comply with impingement mortality requirements by
reducing intake velocity to 0.5 ft/s or less in accordance with Sec.
125.95(a)(1)(ii) will only need to submit a Comprehensive Demonstration
Study, including a Proposal for Information Collection, for entrainment
reduction requirements, if applicable. The Proposal for Information
Collection requirements are detailed later in this section. Figure 1
presents an example of a possible timeframe a facility may follow in
preparing and submitting application components.
BILLING CODE 6560-50-P
[[Page 41632]]
[GRAPHIC] [TIFF OMITTED] TR09JY04.000
Following submission of the Proposal for Information Collection,
the Director will review and provide comments on the proposal. During
this time, the facility may proceed with planning, assessment, and data
collection
[[Page 41633]]
activities in fulfillment of Comprehensive Demonstration Study
requirements. The Director is encouraged to provide comments
expeditiously (i.e., within 60 days) so the permit applicant can make
responsive modifications to its information gathering activities.
It is assumed that most facilities would need approximately one
year to complete the studies outlined in the Proposal for Information
Collection. These must be completed at least 180 days prior to the end
of the current permit term, by which time the remainder of required
application information must be submitted. If the facility requires
more than one year to complete studies described in the Proposal for
Information Collection, the facility are encouraged to consult with the
Director. Facilities are also encouraged to consult with the Director
regarding their schedule for study completion.
After the first permit containing requirements consistent with
Subpart J is issued, facilities may submit a request to their Director
soliciting a reduced information collection effort for subsequent
permit applications in accordance with Sec. 125.95(a)(3), which allows
facilities to demonstrate that the conditions at their facility and
within the waterbody in which their intake is located remain
substantially unchanged since their previous permit application. The
request for reduced cooling water intake structure and waterbody
application information must contain a list and justification for each
information item in Sec. Sec. 122.21(r) and 125.95(b) that has not
changed since the previous permit application. The applicant must
submit this request at least one year prior to the expiration of the
current permit term and the Director is required to act on the request
within 60 days.
The Director must review and approve the information you provide in
your permit application, confirm whether your facility should be
regulated as an existing facility under these final regulations, or
under Phase III regulations for existing facilities that will be
developed in the future, or as a new facility under regulations that
were published on December 19, 2001 (66 FR 65256), and confirm the
compliance alternative selected (compliance alternatives 1, 2, 3, 4, or
5). Following review and approval of your permit application, the
Director will develop a draft permit for public notice and comment. The
comment period will allow the facility and other interested parties to
review the draft permit conditions and provide comments to the
Director. The Director will consider all public comments received on
the draft permit and develop a final permit based upon the application
studies submitted and other information submitted during the comment
period, as appropriate. The Director will incorporate the relevant
requirements for the facility's cooling water intake structure(s) into
the final permit.
Today's final rule modifies regulations at 40 CFR 122.21(r) to
require Phase II existing facilities to prepare and submit some of the
same information required for new facilities. Phase II existing
facilities are required to submit two general categories of information
when they apply for a reissued NPDES permit: (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 new facilities, however, Phase
II existing facilities are not required to submit the Source Water
Baseline Biological Characterization Data required under 40 CFR
122.21(r)(4). Today's final rule adds 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 system(s) and
how it/they relate to the cooling water intake structure(s) at the
facility.
In addition, today's final rule requires all Phase II existing
facilities to submit the information required under Sec. 125.95
consistent with the compliance alternative selected. In general, the
final application requirements in Sec. 125.95 require most Phase II
existing facility applicants to submit some or all of the components of
a Comprehensive Demonstration Study (Sec. 125.95(b), see also Exhibit
II in section V). As noted in section V, facilities that do not need to
conduct a Comprehensive Demonstration Study are those that (1) reduce
their flow commensurate with a closed cycle, recirculating cooling
system, (2) install a rule-specified or Director-approved technology in
accordance with Sec. 125.99 (except that these facilities must still
submit a Technology Installation and Operation Plan and Verification
Monitoring Plan), or (3) reduce intake velocity to 0.5 ft/s or less
(except that these facilities must still submit a Comprehensive
Demonstration Study for entrainment requirements, if applicable).
Each component of the Comprehensive Demonstration Study and its
applicability is described later in this section. In addition, the
requirements for each of the five compliance alternatives are detailed,
with respect to which components are required for each alternative.
1. Source Water Physical Data (40 CFR 122.21(r)(2))
Under the final requirements at 40 CFR 122.21(r)(1)(ii), Phase II
existing facilities subject to this final rule are 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 is expected to use this information to evaluate the
appropriateness of the design and construction technologies,
operational measures, and/or restoration measures proposed by the
applicant.
The applicant is required to submit the following specific data:
(1) A narrative description and scaled drawings showing the physical
configuration of all source waterbodies used by the facility, including
areal dimensions, depths, salinity and temperature regimes, and other
documentation that supports the facility's determination of the
waterbody type where each cooling water intake structure is located;
(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 area of
influence within the waterbody and the results of such studies; and (3)
locational maps.
2. Cooling Water Intake Structure Data (40 CFR 122.21(r)(3))
Under the final requirements at 40 CFR 122.21(r)(1)(ii), Phase II
existing facilities are required to submit the data specified at 40 CFR
122.21(r)(3) to characterize the cooling water intake structure which
should assist in the evaluation of its potential for impingement and
entrainment of aquatic organisms. Information on the design of the
intake structure and its location in the water column, in conjunction
with biological information, will allow the permit writer to evaluate
which species, or life stages of a species, are potentially subject to
impingement and entrainment. A diagram of the facility's water balance
should 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,
[[Page 41634]]
allowing the permit writer to evaluate the suitability of proposed
design and construction technologies and/or operational measures.
The applicant is 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 the 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(s).
3. Cooling Water System Data (40 CFR 122.21(r)(5))
Under the final requirements at 40 CFR 122.22(r)(1)(ii), Phase II
existing facilities are 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 structure(s) at the facility. Also required is a narrative
description of the proportion of design intake flow that is used in the
system, the number of days of the year that the cooling water system is
in operation, and any seasonal changes in the operation of the system,
if applicable. The facility must also submit design and engineering
calculations prepared by a qualified expert, such as a professional
engineer, and supporting data to support the narrative description.
This information is expected to be used by the applicant and the
Director in determining the appropriate standards that can be applied
to the Phase II facility.
4. Comprehensive Demonstration Study (Sec. 125.95(b))
Final requirements at Sec. 125.95(b) require all existing
facilities, except those deemed to have met the performance standards
by reducing intake capacity to a level commensurate with the use of a
closed-cycle, recirculating cooling water system, or by reducing intake
velocity to 0.5 ft/s or less (impingement mortality standards only), or
facilities that select an approved technology in accordance with Sec.
125.94(a)(4), to perform and submit to the Director all applicable
components of a Comprehensive Demonstration Study, including data and
detailed analyses to demonstrate that they will meet applicable
requirements in Sec. 125.94(b). As noted in section V, Comprehensive
Demonstration Study requirements vary depending on the compliance
alternative selected.
The Comprehensive Demonstration Study has seven components:
Proposal for Information Collection;
Source Waterbody Flow Information;
Impingement Mortality and/or Entrainment Characterization
Study;
Technology and Compliance Assessment Information;
Restoration Plan;
Information to Support Site-specific Determination of Best
Technology Available for Minimizing Adverse Environmental Impact; and
Verification Monitoring Plan.
All Phase II existing facilities, except those mentioned above, are
required to submit at a minimum the following: a Proposal for
Information Collection (Sec. 125.95(b)(1)); Source Waterbody Flow
Information (Sec. 125.95(b)(2)); an Impingement Mortality and/or
Entrainment Characterization Study (Sec. 125.95(b)(3)); and a
Verification Monitoring Plan (Sec. 125.95(b)(7)). Note that facilities
selecting restoration measures provide a monitoring plan as part of
their Restoration Plan, in accordance with Sec. 125.95(b)(5)(v),
rather than a Verification Monitoring Plan in accordance with Sec.
125.95(b)(7). The requirements in these two provisions are similar, but
tailored specifically to the monitoring needs of restoration projects,
and design and construction technologies and operational measures,
respectively. Phase II existing facilities that have reduced their
intake velocity to less than or equal to 0.5 ft/s but are still
required to reduce entrainment (if the standard applies), must submit
only those components of the Impingement Mortality and/or Entrainment
Characterization Study pertaining to entrainment, in addition to the
other required components of the Comprehensive Demonstration Study.
Facilities that are required to meet only the impingement mortality
reduction requirements in Sec. 125.94(b), are required to submit a
study only for the impingement reduction requirements.
Facilities that comply with applicable requirements either wholly
or in part through the use of existing or proposed design and
construction technologies or in part through the use of existing or
proposed design and construction technologies, and/or operational
measures must submit the Technology and Compliance Assessment
Information in Sec. 125.95(b)(4), consisting of a Design and
Construction Technology Plan (Sec. 125.95(b)(4)(i)) and a Technology
Installation and Operation Plan (Sec. 125.95(b)(4)(ii)). (Facilities
that use a pre-approved technology in accordance with Sec.
125.94(b)(4) need only submit the Technology Installation and Operation
Plan.) The Technology Installation and Operation Plan explains how the
facility intends to install, operate, maintain, monitor, and adaptively
manage the selected technologies to meet the applicable performance
standards or site-specific technology requirements, and in most cases
will provide the basis for determining compliance with Sec. 125.94(b).
Only those Phase II existing facilities that propose to use
restoration measures wholly or in part to meet the performance
standards in Sec. 125.94(b) or site-specific requirements developed
pursuant to Sec. 125.94(a)(5) are required to submit the Restoration
Plan (Sec. 125.95(b)(5)). This Plan serves an analogous function for
restoration measures to that served by the Technology and Compliance
Assessment Information for design and construction technologies and
operational measures, in that it shows the design of the measures,
explains how the facility will construct, maintain, monitor, and
adaptively manage the measures to meet applicable performance standards
and/or site specific requirements, and serves as a basis for
determining compliance.
Only those Phase II existing facilities who request a site-specific
determination of the best technology available are required to submit
Information to Support Site-specific Determination of Best Technology
Available for Minimizing Adverse Environmental Impact (Sec.
125.95(b)(6)). Facilities that select the compliance alternative at
Sec. 125.94(a)(4) (Approved Technology), are required to submit only
two items: the Technology Installation and Operation Plan (Sec.
125.95(b)(4)(ii)) and the Verification Monitoring Plan (Sec.
125.95(b)(7)).
a. Proposal for Information Collection
As a facility, you are required to submit to the Director for
review and comment, a proposal stating what information will be
collected to support the Comprehensive Demonstration Study (see Sec.
125.95(b)(1)). This proposal must provide the following:
A description of the proposed and/or implemented
technology(ies) and/or restoration measures to be evaluated in the
study (Sec. 125.95(b)(1)(i));
[[Page 41635]]
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 (Sec.
125.95(b)(1)(ii)). 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;
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 (Sec. 125.95(b)(1)(iii));
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 (Sec. 125.95(b)(1)(iv)). 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 must take into
account the methods used in other studies performed in the source
waterbody. Also, the methods must be consistent with any methods
required by the Director. The sampling plan must include a description
of the study area (including the area of influence of the cooling water
intake structure(s)), and provide taxonomic identifications of the
sampled or evaluated biological assemblages (including all life stages
of fish and shellfish) to the extent this is known in advance and
relevant to the development of the plan.
In addition, the proposal should provide other information, where
available, that would aid the Director in reviewing and commenting on
your plans for conducting the Comprehensive Demonstration Study (e.g.,
information on how you plan to conduct a Benefits Valuation Study, or
gather additional data to support development of a Restoration Plan).
EPA recognizes that in some cases collection and analysis of
information will be an iterative process and plans for information
collection may change as new data needs are identified. For example, a
facility may not be able to design a Benefits Valuation Study and
determine what additional data are needed (e.g., quantified information
on non-use benefits) until it has first collected and analyzed the data
for its Impingement Mortality and/or Entrainment Characterization
Study. While the Proposal for Information Collection is only required
to be submitted once, EPA encourages permit applicants to consult with
the Director as appropriate after the proposal has been submitted, in
order to ensure that the Director has complete and appropriate
information to develop permit conditions once the permit is submitted.
As stated previously, the proposal for information collection must
be submitted prior to the start of information collection activities
and should allow sufficient time for review and comment by the
Director, although facilities are permitted to begin data collection
activities before receiving the Director's comments. Directors are
encouraged to provide their comments expeditiously (i.e., within 60
days) to allow facilities time to make responsive modifications in
their information collection plans. Adequate time for data collection
efforts identified in the proposal for information collection prior to
the due date for the permit application should also be scheduled.
b. Source Waterbody Flow Information
Under the requirements at Sec. 125.95(b)(2)(i), Phase II existing
facilities (except those that comply with the rule under Sec.
125.94(a)(1)(i) with cooling water intake structures that withdraw
cooling water from freshwater rivers or streams are required to provide
the documentation showing 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 will provide information
needed to determine whether the entrainment performance standards of
Sec. 125.94(b)(2) apply to the facility. Two potential sources of the
documentation are publicly available flow data from a nearby U.S.
Geological Survey (USGS) gauging station or actual instream flow
monitoring data collected by the facility. Representative historical
data (from a period of time up to 10 years, if available) must be used
to make this determination.
Under Sec. 125.95(b)(2)(ii), Phase II existing facilities with
cooling water intake structures that withdraw cooling water from a lake
(other than one of the Great Lakes) or reservoir and that propose to
increase the facility's design intake flow are required to submit a
narrative description of the thermal stratification of the waterbody
and any supporting documentation and engineering calculations showing
that the increased total design intake flow meets the requirement to
not disrupt the natural thermal stratification or turnover pattern
(where present) of the source water in a way that adversely impacts
fisheries, including the results of any consultations with Federal,
State, or Tribal fish or wildlife management agencies. Typically, this
natural thermal stratification will 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. If increased
total design intake flow is proposed, and disruption of the natural
thermal stratification is a positive or neutral impact, the facility
should include this information with the data submitted in this
section.
c. Impingement Mortality and/or Entrainment Characterization Study
(Sec. 125.95(b)(3))
The final regulations require that you submit the results of an
Impingement Mortality and/or Entrainment Characterization Study in
accordance with Sec. 125.95(b)(3). If your facility has reduced its
design, through-screen intake velocity to less than or equal to 0.5 ft/
s, you are not required to submit the impingement mortality component
of this study (Sec. 125.94(a)(1)(ii)). Facilities whose capacity
utilization rate is less than 15 percent, facilities that withdraw
cooling water only from a lake or reservoir other than one of the Great
Lakes, and those facilities that withdraw less than 5 percent of the
mean annual flow of a freshwater river or stream would only be required
to submit the impingement mortality component of this study because no
performance standards for entrainment apply. This Impingement Mortality
and Entrainment characterization must include the following: (1)
Taxonomic identifications of all life stages of fish, shellfish, and
any species protected under Federal, State, or Tribal Law (including
threatened or endangered species) that are in the vicinity of the
cooling water intake structure(s) and are susceptible to impingement
and entrainment; (2) a characterization of all life stages of fish,
shellfish, and any species protected under Federal, State, or Tribal
Law (including threatened or endangered species) identified in the
taxonomic identification noted above, including a description of the
abundance and temporal and spatial characteristics in the vicinity of
the cooling water intake structure(s), based on sufficient data to
characterize annual, seasonal, and diel variations in impingement
mortality and entrainment (e.g., related to climate and weather
differences, spawning, feeding and water column migration); and (3)
[[Page 41636]]
documentation of the current impingement mortality and entrainment of
all life stages of fish, shellfish, and any species protected under
Federal, State, or Tribal Law (including threatened or endangered
species) identified above and an estimate of impingement mortality and
entrainment to be used as 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.
This information must be provided in sufficient detail to support
development of the other elements of the Comprehensive Demonstration
Study. Thus, while the taxonomic identification in item 1 will need to
be fairly comprehensive, the quantitative data required in items 2 and
3 may be more focused on species of concern, and/or species for which
data are available.
Impingement mortality and entrainment samples to support the
calculations required by the Design and Construction Technology Plan
and Restoration Plan 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. EPA recommends that the
facility coordinate a review of its 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 impacts to these species have been evaluated.
d. Technology and Compliance Assessment Information (Sec.
125.95(b)(4))
The Technology and Compliance Assessment Information required under
Sec. 125.95(b)(4) is comprised of two parts: (1) The Design and
Construction Technology Plan; and (2) the Technology Installation and
Operation Plan. If you plan to utilize the compliance alternative in
Sec. 125.94(a)(4), you need only submit the Technology Installation
and Operation Plan. If you plan to utilize the compliance alternative
in Sec. 125.94(a)(2) or (3) using design and construction technologies
and/or operational measures (either existing or new), you must submit
both parts. Note that facilities seeking a site-specific determination
of BTA in accordance with Sec. 125.94(a)(5), must submit a Site-
Specific Technology Plan in accordance with Sec. 125.95(b)(6)(iii)
rather than a Design and Construction Technology Plan. The two plans
contain similar requirements, but are tailored to the compliance
alternative selected. Facilities seeking a site-specific determination
of the best technology available must submit a Technology Installation
and Operation Plan along with their Site-Specific Technology Plan.
The Design and Construction Technology Plan must explain the
technologies or operational measures selected by a facility to meet the
requirements in Sec. 125.94(a)(2) and (3). The Agency recognizes that
selection of the specific technology or group of technologies for your
site will depend on individual facility and waterbody conditions.
Examples of 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 to reduce velocity. Examples of
operational measures include, but are not limited to, seasonal
shutdowns or reductions in flow, and continuous or more frequent
rotation of travelling screens. Information required as part of your
Design and Construction Technology Plan includes the following: (1)
capacity utilization rate for your facility (or for individual intake
structures where appropriate) and supporting data, including average
annual net generation of the facility in megawatt hours (MWh) as
measured over a five-year period (if available) of representative
operating conditions and the total net capacity of the facility in
megawatts (MW) and calculations (Sec. 125.95(b)(4)(i)); (2) a
narrative description of the design and operation of all design and
construction technologies and/or operational measures that you have or
will put into place to meet the performance standards for reduction of
impingement mortality of those species most susceptible to impingement,
and information that demonstrates the efficacy of those technologies
and/or operational measures for those species; (3) a description of the
design and operation of all design and construction technologies or
operational measures that you have or will put into place, to meet the
performance standards for reduction of entrainment for those species
most susceptible to entrainment, if applicable to your facility, and
information that demonstrates the efficacy of those technologies and/or
operational measures for those species; (4) calculations of the
reduction in impingement mortality and/or entrainment of all life
stages of fish and shellfish that would be achieved by the technologies
and/or operational measures you have selected based on the Impingement
Mortality and/or Entrainment Characterization Study in Sec.
125.95(b)(3); and (5) design and engineering calculations, drawings,
and estimates to support the narrative descriptions required in the
Design and Construction Technology Plan prepared by a qualified expert
such as a professional engineer.
If your facility has multiple intake structures and each is
dedicated exclusively to the cooling water needs of one of more
generating units, you may calculate the capacity utilization rate
separately for each structure, for purposes of determining whether
entrainment reduction performance standards are applicable. Note that
you would still be required to consider the total design intake flow at
all structures combined in determining whether your design intake flow
exceeds 5 percent of the mean annual flow of a freshwater river or
stream. If your capacity utilization rate, for either a single intake
structure or the facility as a whole, is 15 percent or greater based on
the historical 5 year annual average, but you make a binding commitment
to the Director to maintain your capacity utilization rate below 15
percent for the duration of the permit, you may base your capacity
utilization rate determination on that commitment.
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
calculation baseline developed under the Impingement Mortality and
Entrainment Characterization Study (Sec. 125.95(b)(3)). The
calculation baseline is defined at Sec. 125.93 as an estimate of
impingement mortality and entrainment that would occur at your site
assuming (1) The cooling water intake system has been designed as a
once-through system; (2) the opening of the cooling water intake
structure is located at, and the face of the standard \3/8\-inch mesh
traveling screen is oriented parallel to, the shoreline near the
surface of the source waterbody; and (3) the baseline practices,
procedures, and structural configuration are those that the facility
would maintain in the absence of any structural or operational
controls, including flow or velocity reductions, implemented in whole
or in part for the purposes of reducing impingement mortality and
entrainment. You may also choose to use your facility's current level
of impingement mortality and entrainment as the calculation baseline.
EPA has previously referred to this as the ``as-built approach.''
Reductions in impingement mortality and entrainment
[[Page 41637]]
from the calculation baseline as a result of any design and
construction technologies and/or 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 in order to meet the
applicable performance standards (Sec. 125.95(b)(4)(i)(C)). In this
case, the 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. Additionally, if a portion of the total design intake flow
is water withdrawn for a closed-cycle, recirculating cooling system
(but flow is not sufficiently reduced to satisfy the compliance option
in Sec. 125.94(a)(1)(i)), such facilities may use the reduction in
impingement mortality and entrainment that is attributed to the
reduction in flow in meeting the performance standards in Sec.
125.94(b). The calculation baseline may be estimated using: historical
impingement mortality and entrainment data from your facility or from
another facility with comparable design, operational, and environmental
conditions; current biological data collected in the waterbody in the
vicinity of your cooling water intake structure; or current impingement
mortality and entrainment data collected at your facility. A facility
may request that the calculation baseline be modified to be based on a
location of the opening of the cooling water intake structure at a
depth other than at or near the surface if they can demonstrate to the
Director that the other depth would correspond to a higher baseline
level of impingement mortality and/or entrainment.
The Technology Installation and Operation Plan is required for all
facilities that choose the compliance alternative in Sec.
125.94(a)(2), (3), (4), or (5), propose to use design and construction
technologies and/or operational measures (either existing or new) to
meet performance standards or site specific requirements. Such
facilities must submit the following information to the Director for
review and approval: (1) A schedule for the installation and
maintenance of any new design and construction technologies; (2) a list
of the operational parameters that will be monitored, including the
location and the frequency at which you will monitor them; (3) a list
of activities you will undertake to ensure to the degree practicable
the efficacy of the installed design and construction technologies and
operational measures, and the schedule for implementing them; (4) a
schedule and methodology for assessing the efficacy of any installed
design and construction technologies and operational measures in
achieving applicable performance standards, including an adaptive
management plan for revising design and construction technologies and/
or operational technologies if your assessment indicates that
applicable performance standards are not being met; and (5) for
facilities that select a pre-approved technology in accordance with
Sec. 125.94(a)(4), documentation that appropriate site conditions (as
specified by EPA or the Director in accordance with Sec. 125.99) exist
at your facility. In developing the schedule for installation and
maintenance of any new design and construction technologies in item 1,
you should schedule any downtime to coincide with otherwise necessary
downtime (e.g., for repair, overhaul, or routine maintenance of the
generating units) to the extent practicable. Where additional downtime
is required, you may coordinate scheduling of this downtime with the
North American Electric Reliability Council and/or other generators in
your area to ensure that impacts to energy reliability and supply are
minimized. The Director should approve any reasonable scheduling
provision included for this purpose. Those facilities that propose to
use restoration measures must submit the Restoration Plan required at
Sec. 125.95(b)(5).
Today's final rule requires the Director to evaluate, using
information submitted in your application, bi-annual status reports,
and any other available information, the performance of any
technologies, operational measures, and/or restoration measures you may
have implemented in previous permit terms. Additional or different
design and construction technologies, operational measures, and/or
restoration measures may be required if the Director determines that
the initial technologies, operational measures, and/or restoration
measures you selected and implemented will not meet the requirements of
Sec. 125.94(b) and (c), as provided in Sec. 125.98(b)(1)(i). The rule
also requires that your permit contain a condition requiring your
facility to reduce impingement mortality and entrainment commensurate
with the efficacy of the installed design and construction technologies
and/or operational measures. This is designed to ensure that
technologies are operated and maintained to ensure their efficacy to
the degree practicable, and not merely to meet the low end of the
applicable performance standard range, if better performance is
practicable. The Technology Installation and Operation Plan is one of
the most important pieces of documentation for implementing the
requirements of this final rule. It serves to (1) guide facilities in
the installation, operation, maintenance, monitoring, and adaptive
management of selected design and construction technologies and/or
operational measures; (2) provide a schedule and methodology for
assessing success in meeting applicable performance standards and site-
specific requirements; and (3) provide a basis for determining
compliance with the requirements of Sec. 125.94(a)(2)-(5). Facilities
and Directors are encouraged to take appropriate care in developing,
reviewing and approving the plan. Note that for facilities employing
restoration measures, the Restoration Plan serves the same required
functions.
e. Restoration Plan (Sec. 125.95(b)(5))
EPA views restoration measures as part of the ``design'' of a
cooling water intake structure, and considers restoration measures one
of several technologies that may be employed, in combination with
others, to minimize adverse environmental impact. The consideration of
restoration measures is relevant to the section 316(b) determination of
the requisite design of cooling water intake structures because
restoration measures help minimize the adverse environmental impact
attributable to such structures. Facilities may use restoration
measures that produce and/or result in levels of fish and shellfish in
the facility's waterbody or watershed that are substantially similar to
those that would result through compliance with the applicable
performance standards or alternative site-specific requirements. In
order to employ restoration measures, the facility must demonstrate to
the Director that it has evaluated the use of design and construction
technologies and/or operational measures and determined that the use of
restoration measures is appropriate because meeting the applicable
performance standards or site-specific requirements through the use of
design and construction technologies and/or operational measures alone
is less feasible, less cost-effective or less environmentally
desireable than meeting the standards in whole or in part through the
use of restoration measures. Facilities must
[[Page 41638]]
also demonstrate to the Director that the restoration measures, alone
or in combination with any feasible design and construction
technologies and/or restoration measures, will produce ecological
benefits and maintain fish and shellfish in the waterbody, including
community structure and function, at a substantially similar level to
that which would be achieved by meeting the applicable performance
standards at Sec. 125.94(b) or the site-specific requirements
developed pursuant to Sec. 125.94(a)(5). The Director must approve any
use of restoration measures.
To help all parties review the proposed or existing restoration
measures and to help ensure adequate performance of those measures,
Sec. 125.95(b)(5) requires facilities proposing to use restoration
measures to submit a Restoration Plan with their applications to the
Director for review and approval. In the submittal, the facility must
address species identified, in consultation with Federal, State, and
Tribal fish and wildlife management agencies with responsibility for
fisheries and wildlife potentially affected by its the facility's
cooling water intake structures, as species of concern. The level of
complexity of the Restoration Plan likely will be commensurate with the
restoration measures considered or proposed.
First, the facility must demonstrate that it has evaluated the use
of design and construction technologies and/or operational measures and
explain how it determined that the use of restoration measures would be
more feasible, cost-effective, or environmentally desirable than
meeting the applicable performance standards or site-specific
requirements wholly through the use of design and construction
technologies, and/or operational measures.
Second, the facility must submit a narrative description of the
design and operation of all restoration measures the facility has in
place or has selected and proposes to implement to produce fish and
shellfish. If the ecological benefits from an existing restoration
project are required to compensate for some environmental impact other
than the impact from impingement and entrainment by the cooling water
intake structure (e.g., a wetland created to satisfy section 404 of the
Clean Water Act requirements), those ecological benefits should not be
counted towards meeting the applicable performance standards or site-
specific requirements. The narrative description should identify the
species targeted under any restoration measures.
Third, the facility must submit a quantification of the ecological
benefits of the existing and/or proposed restoration measures. The
facility must estimate the reduction in fish and shellfish impingement
mortality and entrainment that would be necessary to comply with
applicable performance standards or site-specific requirements, using
information from the Impingement Mortality and Entrainment
Characterization Study and any other available and appropriate
information. The facility must then calculate the production of fish
and shellfish from existing and proposed restoration measures. The
quantification must also include a discussion of the nature and
magnitude of uncertainty associated with the performance of the
restoration measures and a discussion of the time frame within which
ecological benefits are expected to accrue from the restoration
project.
Fourth, the facility must provide design calculations, drawings,
and estimates documenting that the proposed restoration measures, in
combination with design and construction technologies and/or
operational measures, or alone, will meet the requirements for
production of fish and shellfish. Production of fish and shellfish as a
result of relevant restoration measures already implemented at the
facility should be added to the production expected to be achieved by
the additional restoration measures. If the restoration measures
address the same fish and shellfish species identified in the
Impingement Mortality and Entrainment Characterization Study (in-kind
restoration), the facility must demonstrate that the restoration
measures will produce a level of these fish and shellfish substantially
similar to that which would result from meeting applicable performance
standards or site-specific requirements. In this case, the calculations
should include a site-specific evaluation of the suitability of the
restoration measures based on the species that are found at the site.
If the restoration measures address fish and shellfish species
different from those identified in the Impingement Mortality and
Entrainment Characterization Study (out-of-kind restoration), the
facility must demonstrate that the restoration measures produce
ecological benefits substantially similar to or greater than those that
would be realized through in-kind restoration. Such a demonstration
should be based on a watershed approach to restoration planning and
consider applicable multi-agency watershed restoration plans, site-
specific peer-reviewed ecological studies, and/or consultation with
appropriate Federal, State, and Tribal natural resource agencies. While
both in-kind and out-of-kind restoration require a quantification of
the levels of fish and shellfish the restoration measures are expected
to produce, out-of-kind restoration may include a qualitative
demonstration that these ecological benefits are substantially similar
to or greater than those that would be realized through in-kind
restoration, because different species are being produced that may not
be directly comparable to those identified in the Impingement Mortality
and/or Entrainment Characterization Study.
Fifth, the facility must submit a plan utilizing an adaptive
management method for implementing, maintaining, and demonstrating the
efficacy of the restoration measures it has selected and for
determining the extent to which restoration measures, or the
restoration measures in combination with design and construction
technologies and operational measures, have met the applicable
performance standards or site-specific requirements. Adaptive
management is a process in which a facility chooses an approach for
meeting a project goal, monitors the effectiveness of that approach,
and then, based on monitoring and any other available information,
makes any adjustments necessary to ensure continued progress toward the
project's goal. This cycle is repeated as necessary until the goal is
met.
The adaptive management plan must include (1) A monitoring plan
that includes a list of the restoration parameters that the facility
will monitor, the frequency at which they will be monitored, and the
success criteria for each parameter; (2) a list of activities the
facility will undertake to ensure the efficacy of the restoration
measures, a description of the linkages between these activities and
the items described in the monitoring plan, and an implementation
schedule for the activities; and (3) a process for revising the
restoration plan as new information, including monitoring data, becomes
available, and if the applicable performance standards or site-specific
requirements are not being met.
Sixth, the facility must submit a summary of any past or ongoing
consultation with Federal, State, and Tribal fish and wildlife
management agencies on its use of restoration measures, including any
written comments received as a result of such consultations.
Seventh, if requested by the Director, the facility must conduct a
peer review
[[Page 41639]]
of items to be submitted as part of the Restoration Plan. Written
comments from peer reviewers must be submitted to the Director and made
available to the public as part of the permit application. Peer
reviewers must be selected in consultation with the Director who may
consult with EPA, Federal, State and Tribal fish and wildlife
management agencies with responsibility for fish and wildlife
potentially affected by the facility's cooling water intake
structure(s). Peer reviewers must have appropriate qualifications
(e.g., in the fields of geology, engineering and/or biology) depending
upon the materials to be reviewed.
Finally, the facility must include in the Plan a description of
information to be included in a status report to the Director every two
years. The final regulations at Sec. 125.98(b)(1)(ii) require that
this information be reviewed by the Director to determine whether the
proposed restoration measures, in conjunction with (or in lieu of)
design and construction technologies and/or operational measures, will
meet the applicable performance standards or site-specific
requirements, or, if the restoration is out-of-kind, will produce
ecological benefits (fish and shellfish) including maintenance or
protection of community structure and function in your facility's
waterbody or watershed.
f. Compliance Using a Pre-approved Technology (Sec. 125.94(a)(4))
If you choose to comply with the fourth compliance alternative, you
must submit documentation to the Director that your facility meets the
appropriate site conditions and you have installed and will properly
operate and maintain submerged cylindrical wedgewire screen technology
(as described in Sec. 125.99(a)(1)) or other technologies as approved
by the Director under Sec. 125.99(b)). If you are subject to
impingement mortality performance standards only, and plan to install
wedgewire screens with a maximum through-screen design intake velocity
of 0.5 ft/s or less, you should choose the compliance alternative in
Sec. 125.94(a)(1)(i), and do not need to demonstrate that you meet the
other criteria in Sec. 125.99(a)(1) or prepare a Technology
Installation and Operation Plan or Verification Monitoring Plan.
Facilities subject to entrainment performance standards seeking
compliance under this alternative must submit a Technology Installation
and Operation Plan and a Verification Monitoring Plan that address
entrainment reduction, and document that all of the appropriate site
conditions in Sec. 125.99(a)(1) exist at their facility. To qualify
for compliance using the cylindrical wedgewire screen technology, your
facility must meet the following conditions: (1) Your cooling water
intake structure is located in a freshwater river or stream; (2) your
cooling water intake structure is situated such that sufficient ambient
counter-currents exist to promote cleaning of the screen face; (3) your
maximum through-screen design intake velocity is 0.5 ft/s or less; (4)
the slot size is appropriate for the size of eggs, larvae, and
juveniles of all fish and shellfish to be protected at the site; and
(5) your entire main condenser cooling water flow is directed through
the technology. Note that small flows totalling less than 2 MGD for
auxiliary plant cooling do not necessarily have to be included.
Facilities should demonstrate that they meet these criteria in the
Technology Installation and Operation Plan.
In addition, any interested person may submit a request that a
technology be approved for use in accordance with the compliance
alternative in Sec. 125.94(a)(4). If the Director approves, the
technology may be used by all facilities that have similar site
conditions under the Director's jurisdiction. To do this, the
interested person must submit the following as required by Sec.
125.99(b): (1) A detailed description of the technology; (2) a list of
design criteria for the technology and site characteristics and
conditions that each facility must have in order to ensure that the
technology can consistently meet the appropriate impingement mortality
and entrainment performance standards in Sec. 125.94(b); and (3)
information and data sufficient to demonstrate that all facilities
under the jurisdiction of the Director can meet the applicable
impingement mortality and entrainment performance standards in Sec.
125.94(b) if the applicable design criteria and site characteristics
and conditions are present at the facility.
EPA has adopted this compliance alternative in response to comments
suggesting that EPA provide an additional, more streamlined compliance
option under which a facility could implement certain specified
technologies that are deemed highly protective in exchange for reducing
the scope of the Comprehensive Demonstration Study. (See, 68 FR 13522,
13539; March 19, 2003).
g. Verification Monitoring Plan (Sec. 125.95(b)(7))
Finally, Sec. 125.95(b)(7) requires all Phase II existing
facilities complying under Sec. Sec. 125.94(a)(2), (3), (4), or (5)
using design and construction technologies and/or operational measures,
to submit a Verification Monitoring Plan to measure the efficacy of the
implemented design and construction technologies and/or operational
measures. The plan must include at least two years of monitoring to
verify the full-scale performance of the proposed or already
implemented design and construction technologies and/or operational
measures. Note that verification monitoring is also required for
restoration measures but the requirements for this monitoring are
included as part of the Restoration Plan in Sec. 125.95(b)(5)(v).
Components of the Verification Monitoring Plan must include:
(i) Description of the frequency and duration of monitoring, the
parameters to be monitored, and the basis for determining the
parameters and the frequency and duration of monitoring. The parameters
selected and the duration and frequency of monitoring must be
consistent with any methodology for assessing success in meeting
applicable performance standards in your Technology Installation and
Operation Plan as required by Sec. 125.95(b)(4)(ii);
(ii) A proposal on how naturally moribund fish and shellfish that
enter the cooling water intake structure would be identified and taken
into account in assessing success in meeting the performance standards
in Sec. 125.94(b); and,
(iii) A description of the information to be included in a bi-
annual status report to the Director.
The facility and the Director will use the results of verification
monitoring to assess the facility's success in meeting the performance
standards for impingement mortality and entrainment reduction or
alternate site-specific requirements and to guide adaptive management
in accordance with the requirements in the facility's Technology
Installation and Operation Plan. Restoration monitoring is discussed
separately under Sec. 125.95(b)(5)(v). Verification monitoring is
required to begin once the technologies and/or operational measures are
implemented and continue for a sufficient period of time (but at least
two years) to assess success in reducing impingement mortality and
entrainment.
C. How Will the Director Determine the Appropriate Cooling Water Intake
Structure Requirements?
Initially, the Director must determine whether the facility is
covered by this rule. If the answer to all the following
[[Page 41640]]
questions is yes, the facility will be required to comply with the
requirements of this final rule (Sec. 125.91).
Is the facility a point source?
Does the facility use or propose to use a cooling water
intake structure(s) with a total design intake flow of 50 million
gallons per day (MGD) or more to withdraw cooling water from waters of
the United States?
As its primary activity, does the facility both generate
and transmit electric power or generate electric power but sell it to
another entity for transmission?
Is at least 25 percent of the water withdrawn used solely
for cooling purposes?
In the case of a Phase II existing facility that is co-located with
a manufacturing facility, only that portion of the cooling water intake
flow that is used by the Phase II facility to generate electricity for
sale to another entity will be considered for purposes of determining
the 50 MGD and 25 percent criteria.
Use of a cooling water intake structure includes obtaining cooling
water by any sort of contract or arrangement with one or more
independent suppliers of cooling water if the supplier withdraws water
from waters of the United States (except as provided below) but is not
itself a Phase II existing facility. 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 Phase II
existing facility. However, for purposes of this provision, a public
water system or any entity that sells treated effluent to be used as
cooling water is not a ``supplier.'' Thus, obtaining cooling water from
a public water system or treated effluent used as cooling water does
not constitute use of a cooling water intake structure. This rule is
not intended to discourage the beneficial reuse of treated effluent,
nor is it intended to impose requirements on public water systems.
Permit Application Review
The Director must review the application materials submitted under
Sec. 122.21(r) and Sec. 125.95 and determine the appropriate
performance standards to apply to the facility and approve a set of
design and construction technologies, operational measures, and/or
restoration measures to meet these standards. The first step is to
review the Proposal for Information Collection and determine if the
technologies, operational measures, and/or restoration measures to be
evaluated seem appropriate for the site and if the data gathering
activities (including the sampling plan) seem adequate to support the
development of the other components of the Comprehensive Demonstration
Study, including impingement mortality and entrainment estimates. The
Director will also review any existing data submitted. The Director
must review and provide comment on the Proposal for Information
Collection; however, a facility may proceed with planning, assessment,
and data collection activities in fulfillment of Comprehensive
Demonstration Study requirements prior to receiving comments from the
Director. The Director is encouraged to provide comments expeditiously
(i.e., within 60 days) so the facility can make responsive
modifications to its information collection plans.
If a facility submits a request in accordance with Sec.
125.95(a)(3) to reduce information about its cooling water intake
structures and the source waterbody required to be submitted in its
permit application (other than for the first permit term after
promulgation of this rule, for which complete information is required),
the Director must approve the request within 60 days if conditions at
the facility and in the waterbody remain substantially unchanged since
the facility's previous application.
The Director must also review all information submitted under Sec.
122.21(r)(2), (3), and (5) and Sec. 125.95, as appropriate, to
determine appropriate permit conditions based on the requirements in
this subpart. At each permit renewal, or more frequently as
appropriate, the Director must assess success in meeting applicable
performance standards, restoration requirements, and/or alternate site-
specific requirements.
At each permit renewal, the Director must review the application
materials and monitoring data to determine whether additional
requirements should be included in the permit to meet the applicable
performance standards. Additional requirements may include, but are not
limited to, additional design and construction technologies,
operational measures, and/or restoration measures, improved operation
and maintenance of existing technologies and measures, and/or increased
monitoring.
Permitting Requirements
Following consideration of the information submitted by the Phase
II existing facility in its NPDES permit application, the Director must
determine the appropriate requirements and conditions to include in the
permit based on the compliance alternatives in Sec. 125.94(a) for
establishing best technology available chosen by the facility. The
following requirements must be included in each permit:
(1) Cooling Water Intake Structure Requirements. Requirements that
implement the applicable provisions of Sec. 125.94 must be included in
the permit conditions. To accomplish this, the Director must evaluate
the performance of the design and construction technologies,
operational measures, and/or restoration measures proposed and
implemented by the facility and require additional or different design
and construction technologies, operational measure, and/or restoration
measures, and/or improved operation and maintenance of existing
technologies and measures, if needed to meet the applicable impingement
mortality and entrainment performance standards, restoration
requirements for fish and shellfish production, or alternate site-
specific requirements.
In determining compliance with the performance standards for
facilities proposing to increase withdrawals of cooling water from a
lake (other than a Great Lake) or a reservoir in Sec. 125.94(b)(3),
the Director must consider anthropogenic factors (those not considered
``natural'') unrelated to the Phase II existing facility's cooling
water intake structures that can influence the occurrence and location
of a thermocline. Anthropogenic factors may 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 and wildlife agencies
to determine if any disruption of the natural thermal stratification
resulting from the increased withdrawal of cooling water does not
adversely affect the management of fisheries.
To develop appropriate requirements for the cooling water intake
structure(s), the Director must do the following:
(i) Review and approve the Design and Construction Technology Plan
required in Sec. 125.95(b)(4) to evaluate the suitability and
feasibility of the design and construction technology and/or
operational measures proposed to meet the performance standards of
Sec. 125.94(b), or site-specific requirements developed pursuant to
Sec. 125.94(a)(5);
(ii) If the facility proposes restoration measures in accordance
with Sec. 125.94(c), review and approve the Restoration Plan required
under Sec. 125.95(b)(5) to determine whether the proposed measures,
alone or in
[[Page 41641]]
combination with design and construction technologies and/or
operational measures, will meet the requirements under Sec. 125.94(c);
(iii) In each reissued permit, include a condition in the permit
requiring the facility to reduce impingement mortality and entrainment
(or to increase fish and shellfish production, if applicable)
commensurate with the efficacy at the facility of the installed design
and construction technologies, operational measures, and/or restoration
measures;
(iv) If the facility implements design and construction
technologies and/or operational measures and requests that compliance
with the requirements of Sec. 125.94 be measured for the first permit
(or subsequent permit terms, if applicable) employing the Technology
Installation and Operation Plan in accordance with Sec.
125.95(b)(4)(ii), the Director must review and approve the plan and
require the facility to meet the terms of the plan including any
revisions to the plan that may be necessary if applicable performance
standards or site-specific requirements are not being met. If the
facility implements restorations measures and requests that compliance
with the requirements in Sec. 125.94 be measured for the first permit
term (or subsequent permit terms, if applicable) employing a
Restoration Plan in accordance with Sec. 125.95(b)(5), the Director
must review and approve the plan and require the facility to meet the
terms of the plan including any revision to the plan that may be
necessary if applicable performance standards or site-specific
requirements are not being met. In determining whether to approve a
Technology Installation and Operation Plan or Restoration Plan, the
Director must evaluate whether the design and construction
technologies, operational measures, and/or restoration measures the
facility has installed, or proposes to install, can reasonably be
expected to meet the applicable performance standards in Sec.
125.94(b), restoration requirements in Sec. 125.94(c)(2), and/or
alternative site-specific requirements established pursuant to Sec.
125.94(a)(5), and whether the Technology Installation and Operation
Plan and/or Restoration Plan complies with the applicable requirements
of Sec. 125.95(b). In reviewing the Technology Installation and
Operation Plan, the Director must approve any reasonable scheduling
provisions that are designed to ensure that impacts to energy
reliability and supply are minimized, in accordance with Sec.
125.95(b)(4)(ii)(A). If the facility does not request that compliance
with the requirements in Sec. 125.94 be measured employing a
Technology Installation and Operation Plan and/or Restoration Plan, or
the facility has not been in compliance with the terms of its current
Technology Installation and Operation Plan and/or Restoration Plan
during the preceding permit term, the Director must require the
facility to comply with the applicable performance standards in Sec.
125.94(b), restoration requirement in Sec. 125.94(c)(2), and/or
alternative site-specific requirements developed pursuant to Sec.
125.94(a)(5). In considering a permit application, the Director must
review the performance of the design and construction technologies,
operational measures, and/or restoration measures implemented and
require additional or different design and construction technologies,
operational measures, and/or restoration measures, and/or improved
operation and maintenance of existing technologies and measures, if
needed to meet the applicable performance standards, restoration
requirements, and/or alternative site-specific requirements.
(v) Review and approve the proposed Verification Monitoring Plan
submitted under Sec. 125.95(b)(7) (for design and construction
technologies) and/or monitoring provisions of the Restoration Plan
submitted under Sec. 125.95(b)(5)(v) and require that the monitoring
continue for a sufficient period of time to demonstrate whether the
design and construction technology, operational measures, and/or
restoration measures meet the applicable performance standards in Sec.
125.94(b), restoration requirements in Sec. 125.94(c)(2) and/or site-
specific requirements established pursuant to Sec. 125.94(a)(5);
(vi) If a facility requests requirements based on a site-specific
determination of best technology available for minimizing adverse
environmental impact, the Director must review the application
materials submitted under Sec. 125.95(b)(6) and any other information
submitted, including quantitative and qualitative benefits, that would
be relevant to a determination of whether alternative requirements are
appropriate for the facility. If a facility submits a study to support
entrainment survival at the facility, the Director must review and
approve the results of that study. If the Director determines that
alternative requirements are appropriate, the Director must make a
site-specific determination of best technology available for minimizing
adverse environmental impact in accordance with Sec. 125.94(a)(5). The
Director may request revisions to the information submitted by the
facility in accordance with Sec. 125.95(b)(6) if it does not provide
an adequate basis to make this determination. Any site-specific
requirements established based on new and/or existing design and
construction technologies, operational measures, and/or restoration
measures, must achieve an efficacy that is, in the Director's
judgement, as close as practicable to the applicable performance
standards without resulting in costs that are significantly greater
than the costs considered by the Administrator for a like facility to
achieve the applicable performance standards or the benefits of
complying with the applicable performance standards in Sec. 125.94(b);
(vii) The Director must review information on the proposed methods
for assessing success in meeting applicable performance standards and/
or restoration requirements submitted by the facility under Sec.
125.95(b)(4)(ii)(D) and/or (b)(5)(v)(A), evaluate those and other
available methods, and specify how success in meeting the performance
standards and/or restoration requirements must be determined including
the averaging period for determining the percent reduction in
impingement mortality and entrainment and/or the production of fish and
shellfish. Compliance for facilities who request that compliance be
measured employing a Technology Installation and Operation Plan and/or
Restoration Plan must be determined in accordance with Sec.
125.98(b)(1)(iv).
(2) Monitoring Conditions. The Director must require the facility
to perform monitoring in accordance with the Technology Installation
and Operation Plan in Sec. 125.95(b)(4)(ii), the Restoration Plan
required by Sec. 125.95(b)(5), if applicable, and the Verification
Monitoring Plan required by Sec. 125.95(b)(7). In determining any
additional applicable monitoring requirements in accordance with Sec.
125.96, the Director must consider the monitoring facility's
Verification Monitoring, Technology Installation and Operation, and/or
Restoration Plans, as appropriate. The Director may modify the
monitoring program 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 facility to report and keep records specified in Sec.
125.97.
(4) Pre-Approved Design and Construction Technologies. Section
125.94(a)(4) offers facilities the choice of adopting a protective,
pre-approved design and construction technology, and preparing a
significantly streamlined Comprehensive Demonstration Study. Section
125.99 lists one pre-approved
[[Page 41642]]
technology (wedgewire screens) and provides an opportunity for the
Director to pre-approve other technologies.
For a facility that chooses to demonstrate that they have installed
and properly operate and maintain a design and construction technology
approved in accordance with Sec. 125.99, the Director must review and
approve the information submitted in the Technology Installation and
Operation Plan in Sec. 125.95(b)(4)(ii) and determine if they meet the
criteria in Sec. 125.99.
If a person/facility requests approval of a technology under Sec.
125.99(b), the Director must review and approve the information
submitted and determine its suitability for widespread use at
facilities with similar site conditions in its jurisdiction with
minimal study. The Director must evaluate the adequacy of the
technology when installed in accordance with the required design
criteria and site conditions to consistently meet the performance
standards in Sec. 125.94(b). The Director may only approve a
technology following public notice and consideration of comment
regarding such approval.
(5) Bi-Annual Status Report. The Director must specify monitoring
data and other information to be included in a status report every two
years. The other information may include operation and maintenance
records, summaries of adaptive management activities, or any other
information that is relevant to determining compliance with the terms
of the facility's Technology Installation and Operation Plan and/or
Restoration Plan.
D. What Will I Be Required To Monitor?
Section 125.96 of today's final rule provides that Phase II
existing facilities must perform monitoring in accordance with the
Verification Monitoring Plan required by Sec. 125.95(b)(7), the
Technology Installation and Operation Plan required by Sec.
125.95(b)(4)(ii), if applicable, the Restoration Plan required by Sec.
125.95(b)(5), and any additional monitoring specified by the Director
to demonstrate compliance with the applicable requirements of Sec.
125.94. In developing monitoring conditions, the Director should
consider the need for biological monitoring data, including impingement
and entrainment sampling data sufficient to assess the presence,
abundance, life stages (including eggs, larvae, juveniles, and adults),
and mortality of aquatic organisms (fish and shellfish or other
organisms required to be monitored by the Director) impinged or
entrained during operation of the cooling water intake structure. This
type of data may be used to develop permit conditions to implement the
requirements of this rule. The Director should ensure, where
appropriate, that any required monitoring will 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 may modify the monitoring program based on changes in
physical or biological conditions in the vicinity of the cooling water
intake structure. The Director may also require monitoring of
operational parameters for facilities that employ a Technology
Installation and Operation Plan or Restoration Plan to comply with the
requirements of Sec. 125.94. The Director must specify what monitoring
or other data is to be included in a status report every two years.
E. How Will Compliance Be Determined?
This final rule will be implemented by the Director placing
conditions consistent with the requirements of this part in NPDES
permits. A facility may demonstrate compliance by meeting the
performance standards in Sec. 125.94(b) applicable to the facility.
The application information, including components of the Comprehensive
Demonstration Study, as appropriate, should demonstrate that the
facility is already meeting the performance standards, or that it will
install and properly operate and maintain design and construction
technologies, operational measures, and/or restoration measures to meet
the performance standards, or that a site-specific determination of
best technology available is necessary. To support this demonstration,
the facility should submit the following information to the Director:
Data submitted with the NPDES permit application to show
that the facility meets location, design, construction, and capacity
requirements consistent with the compliance alternative selected;
Data to demonstrate that the facility is meeting the
performance standards consistent with the compliance alternative
selected;
Compliance monitoring data and records as prescribed by
the Director.
The specifics of how success in meeting the performance standards
shall be measured (i.e, the number of species, whether critical species
or all species) and the method of measurement (e.g., total biomass,
total counts, etc.) must be determined by the Director based on review
of the proposed methodology submitted by the facility in its Technology
Installation and Operation Plan and/or Restoration Plan, and any other
methods the Director considers appropriate.
Alternatively, the facility may request that compliance be
determined based on whether it has complied with the construction,
operational, maintenance, monitoring, and adaptive management
requirements of its Technology Installation and Operation Plan (for
design and construction technologies and/or operational measures) or
Restoration Plan (for restoration measures). In this case, the facility
must still assess success in meeting applicable performance standards
or restoration requirements but this assessment serves to guide the
adaptive management process rather than as a basis for determining
compliance. After the first permit term following promulgation of this
subpart, facilities are only eligible for this compliance determination
alternative if they have been in compliance with the terms of their
Technology Installation and Operation Plan and/or Restoration Plan
during the preceding permit term. Under this compliance determination
alternative, the Technology Installation and Operation Plan or
Restoration Plan must specify construction, operational, maintenance,
monitoring, and adaptive management requirements that can reasonably be
expected to achieve success in meeting the applicable performance
standards, restoration requirements and/or site-specific requirements.
These construction, operational, maintenance, monitoring, and adaptive
management requirements must also be approved by the Director, who will
also specify what monitoring data and other information must be
included in the facility's biannual status report.
The required elements of the Technology Installation and Operation
Plan include (1) a schedule for installation and maintenance of any new
technologies; (2) operational parameters to be monitored; (3)
activities to ensure the efficacy of technologies and measures; (4) a
schedule and methodology for assessing the efficacy of installed
technologies and measures in meeting the performance standards; (5) an
adaptive management plan; and (6) for facilities using a pre-approved
compliance technology, documentation that they meet the conditions for
its use. The Restoration Plan requires corresponding information as
appropriate for restoration measures.
EPA believes that it is important for facilities to consider and
document each of the components of the Technology
[[Page 41643]]
Installation and Operation Plan, regardless of which compliance
determination approach is used. However, the level of detail
appropriate for some of the components may be different for the two
different approaches. For facilities that comply by demonstrating
success in meeting performance standards, particularly in cases where
they are already meeting the standards and no significant changes in
technologies or operations are needed, brief summaries may be
sufficient for most components, though they will still need detailed
documentation of their schedule and methodology for assessing efficacy
of installed technologies and measures for meeting the standards.
Conversely, for facilities where compliance is determined based on
whether they have complied with the construction, operation,
maintenance, monitoring, and adaptive management approaches required in
the Technology Installation and Operation Plan or Restoration Plan, a
fairly detailed specification of these requirements will be
appropriate. The Director should ensure that the level of detail in the
Technology Installation and Operation Plan or Restoration Plan is
sufficient to support whichever compliance determination approach is
selected.
Section 125.97 requires existing facilities to keep records and
report monitoring data and other information specified by the Director
in a bi-annual status report although Directors may require more
frequent reports. Facilities must also keep records of all 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 submitted under
Sec. 125.96, for a period of at least three (3) years from date of
permit issuance. The Director may require that these records be kept
for a longer period.
F. What Are the Respective Federal, State, and Tribal Roles?
Today's final regulations 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 final rule affects 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 final 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 approved. This
final regulation does not alter State authority under section 510 of
the Clean Water Act.
EPA recognizes that some States have invested considerable effort
in developing and implementing section 316(b) regulatory programs. This
final regulation allows States to use these programs to fulfill section
316(b) requirements where the State demonstrates to the Administrator
that such programs will achieve comparable environmental performance.
Specifically, the final rule allows any State to demonstrate to the
Administrator that it has adopted alternative regulatory requirements
in its NPDES program that will result in environmental performance
within each relevant watershed that is comparable to the reductions in
impingement mortality and entrainment that would otherwise be achieved
under Sec. 125.94.
In addition to updating their programs to be consistent with
today's final rule, States and Tribes authorized to implement the NPDES
program are required under NPDES State program requirements to
implement the cooling water intake structure requirements of subpart J
following promulgation of the final regulations. The permit
requirements in this final rule must be implemented upon the first
issuance or reissuance of permits following promulgation.
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 of a freshwater river or stream at the
point of the intake;
Determination of the performance standards in Sec.
125.94(b) 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 Technology and
Compliance Assessment Information, including the Design and
Construction Technology Plan and Technology Installation and Operation
Plan, demonstrates that the proposed technologies and measures will
reduce the impacts to fish and shellfish to levels required;
Verification that a permit applicant is eligible for site-
specific requirements, and if so, development of site-specific
requirements that achieve an efficacy as close as practicable to the
applicable performance standards;
Verification that the Technology Installation and
Operation Plan can reasonably be expected to meet performance standards
or alternative site-specific requirements;
Verify that the facility meets the requirements of the
approved compliance alternative it selected;
Verify that any Restoration Plan meets all applicable
requirements;
Verify that the Verification Monitoring Plan is sufficient
to assess technology efficacy;
Development of draft and final NPDES permit conditions for
the applicant implementing applicable section 316(b) requirements
pursuant to this rule including whether compliance with the
requirements of Sec. 125.94 will be determined based on success in
meeting applicable performance standards or based on complying with a
Technology Installation and Operation Plan or Restoration Plan; and,
Ensuring compliance with permit conditions based on
section 316(b) requirements.
EPA will implement these requirements where States or Tribes are
not authorized to implement the NPDES program. EPA also will 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 final rulemaking authorizes activities that are not in
compliance
[[Page 41644]]
with these or other applicable Federal laws (e.g., Marine Mammal
Protection Act, 16 U.S.C. 1361 et seq., and Migratory Bird Treaty Act,
16 U.S.C. 703 et seq.).
H. Alternative Site-Specific Requirements
Under Sec. 125.94(a)(5), an existing facility may demonstrate to
the Director that it has selected, installed, and is properly operating
and maintaining, or will install and properly operate and maintain,
design and construction technologies, operational measures, and/or
restoration measures that the Director determines to be the best
technology available to minimize adverse environmental impact for the
facility based on the cost-cost test specified in sub-section (a)(5)(i)
or the cost-benefit test specified in (a)(5)(ii) of the rule.
Section 125.94(a)(5)(i) provides that an existing facility may
demonstrate that the costs of compliance under the compliance
alternatives in Sec. 125.94(a)(2) through (4) of the rule would be
significantly greater than the costs considered by the Administrator
for a like facility in establishing the applicable performance
standards. In such cases, the Director must make a site-specific
determination of the best technology available for minimizing adverse
environmental impact. The Director must establish site-specific
alternative requirements based on new and/or existing design and
construction technologies, operational measures, and/or restoration
measures that achieve an efficacy that is, in the judgment of the
Director, as close as practicable to the applicable performance
standards in Sec. 125.94(b) of the rule.
Section 125.94(a)(5)(ii) provides that an existing facility may
demonstrate that the costs of compliance under alternatives in Sec.
125.94(a)(2) through (4) of the rule would be significantly greater
than the benefits of complying with the applicable performance
standards at that facility. In such cases, the Director must make a
site-specific determination of best technology available for minimizing
adverse environmental impact. The Director must establish site-specific
alternative requirements based on new and/or existing design and
construction technologies, operational measures, and/or restoration
measures that achieve an efficacy that, in the judgment of the
Director, is as close as practicable to the applicable performance
standards in Sec. 125.94(b) of the rule.
1. Facility's Costs Significantly Greater Than Costs Considered by EPA
If the Director determines that data specific to your facility
indicate that the costs of compliance under Sec. 125.94(a)(2) through
(4) would be significantly greater than the costs considered by the
Administrator for a facility like yours in establishing the applicable
performance standards in Sec. 125.94(b) you may request a site-
specific determination of best technology available for minimizing
adverse environmental impacts. A facility requesting this determination
must submit a Comprehensive Cost Evaluation Study (Sec.
125.94(b)(6)(i)) and a Site Specific Technology Plan (Sec.
125.94(b)(6)(iii)). The Comprehensive Cost Evaluation Study must
include engineering cost estimates in sufficient detail to document the
costs of implementing design and construction technologies, operational
measures, and/or restoration measures at the facility that would be
needed to meet the applicable performance standards of Sec. 125.94(b);
a demonstration that the documented costs significantly exceed the
costs considered by EPA for a facility like yours in establishing the
applicable performance standards; and engineering cost estimates in
sufficient detail to document the costs of implementing alternative
design and construction technologies, operational measures, and/or
restoration measures in the facility's Site-Specific Technology Plan
developed in accordance with Sec. 125.95(b)(6)(iii).
To make the demonstration that compliance costs are significantly
greater than those considered by EPA, the facility must first determine
its actual compliance costs. To do this, the facility first should
determine the costs for any new design and construction technologies,
operational measures, and/or restoration measures that would be needed
to comply with the requirements of Sec. 125.94(a)(2) through (4),
which may include the following cost categories: The installed capital
cost of the technologies or measures, the net operation and maintenance
(O&M) costs for the technologies or measures (that is, the O&M costs
for the final suite of technologies and measures once all new
technologies and measures have been installed less the O&M costs of any
existing technologies and measures), the net revenue losses (lost
revenues minus saved variable costs) associated with net construction
downtime (actual construction downtime minus that portion which would
have been needed anyway for repair, overhaul or maintenance) and any
pilot study costs associated with on-site verification and/or
optimization of the technologies or measures. Costs should be
annualized using a 7 percent discount rate, with an amortization period
of 10 years for capital costs and 30 years for pilot study costs and
construction downtime net revenue losses. Annualized costs should be
converted to 2002 dollars ($2002), using the engineering news record
construction cost index (see Engineering News-Record. New York: McGraw
Hill. Annual average value is 6538 for year 2002). Costs for permitting
and post-construction monitoring should not be included in this
estimate, as these are not included in the EPA-estimated costs against
which they will be compared, as described below. Because existing
facilities already incur monitoring and permitting costs, and these are
largely independent of the specific performance standards adopted and
technologies selected to meet them, EPA believes it is both simpler and
more appropriate to conduct the cost comparison required in this
provision using direct compliance costs (capital, net O&M, net
construction downtime, and pilot study) only. Adding permitting and
monitoring costs to both sides of the comparison would complicate the
methodology without substantially changing the results.
To calculate the costs that the Administrator considered for a like
facility in establishing the applicable performance standards, the
facility must follow the steps laid out below, based on the information
in the table provided in Appendix A: Costs considered by EPA in
Establishing Performance Standards. A sample of the table is provided
below (see sample table). Note that those facilities that claimed the
flow data that they submitted to EPA, and which EPA used to calculate
compliance costs, as confidential business information (CBI), are not
listed in the table provided in Appendix A, unless the total calculated
compliance costs were zero. If these facilities wish to request a site-
specific determination of best technology available based on
significantly greater compliance costs, they will need to waive their
claim of confidentiality prior to submitting the Comprehensive Cost
Evaluation Study so that EPA can make the necessary data available to
the facility, Director, and public.
[[Page 41645]]
Sample Table.--Costs Considered by EPA in Establishing Performance Standards ($2002)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized
EPA capital Performance
assumed Baseline Post \3\ + net Net revenue Annualized standards EPA Design
design Capital O&M construction O&M using losses from Pilot downtime on which modeled flow
Facility ID Intake ID intake cost annual O&M annual EPA design net study and pilot EPA cost technology adjustment
flow, gpm cost cost intake construction costs study estimates code slope (m)
(Xepa) flow \2\ downtime costs 2,4 are based \1\
(yepa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Column 1 Column 2.................... Column 3 Column 4 Column 5 Column 6 Column 7 Column 8 Column 9 Column 10 Column 11 Column 12 Column 13
------------------------------
Fac 1 ID ......... ......... ......... ............ .......... ............ ......... .......... ........... .......... ..........
Fac 2 ID ......... ......... ......... ............ .......... ............ ......... .......... ........... .......... ..........
Fac 3 ID \5\................. Intake 1.................... ......... ......... ......... ............ .......... ............ ......... .......... ........... .......... ..........
Fac 3 ID \5\................. Intake 2.................... ......... ......... ......... ............ .......... ............ ......... .......... ........... .......... ..........
Etc. ......... ......... ......... ............ .......... ............ ......... .......... ........... .......... ..........
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The design flow adjustment slope (m) represents the slope that corresponds to the particular facility using the technology in column 12.
\2\ Discount rate = 7%
\3\ Amortization period for capital costs = 10 years
\4\ Amortization period for downtime and pilot study costs = 30 years
\5\ Depending on the data provided, some facilities with multiple intakes were costed separately for each intake. In such cases, the facility should calculate the costs considered by EPA for
each intake separately using the steps below and sum. Note that some cost components (e.g. construction downtime losses and pilot study costs) are assigned arbitrarily to one of the intakes,
since it is difficult to determine how they would be assigned to each intake separately. Since the costs for multiple intakes are summed, this will not affect the results.
[[Page 41646]]
The data in Appendix A is keyed to both a facility name and survey
ID number. Facilities should be able to determine their ID number from
the survey they submitted to EPA during the rule development process.
Step 1: Determine which technology EPA modeled as the most
appropriate compliance technology for your facility (Sec.
125.94(a)(5)(i)(A)). To do this, use the code in column 12 of Appendix
A to look up the modeled technology in Table 9-1 below.
Table 9-1.--Technology Codes and Descriptions
------------------------------------------------------------------------
Technology codes Technology description
------------------------------------------------------------------------
1 Addition of fish handling and return
system to an existing traveling
screen system.
2 Addition of fine-mesh screens to an
existing traveling screen system.
3 Addition of a new, larger intake with
fine-mesh and fish handling and
return system in front of an existing
intake system.
4 Addition of passive fine-mesh screen
system (cylindrical wedgewire) near
shoreline with mesh width of 1.75 mm.
5 Addition of a fish net barrier system.
6 Addition of an aquatic filter barrier
system.
7 Relocation of an existing intake to a
submerged offshore location with
passive fine-mesh screen inlet with
mesh width of 1.75 mm.
8 Addition of a velocity cap inlet to an
existing offshore intake.
9 Addition of passive fine-mesh screen
to an existing offshore intake with
mesh width of 1.75 mm.
10 [Module 10 not used].
11 Addition of dual-entry, single-exit
traveling screens (with fine-mesh) to
a shoreline intake system.
12 Addition of passive fine-mesh screen
system (cylindrical wedgewire) near
shoreline with mesh width of 0.76 mm.
13 Addition of passive fine-mesh screen
to an existing offshore intake with
mesh width of 0.76 mm.
14 Relocation of an existing intake to a
submerged offshore location with
passive fine-mesh screen inlet with
mesh width of 0.76 mm.
------------------------------------------------------------------------
Step 2: Using EPA's costing equations, calculate the annualized
capital and net operation and maintenance costs for a facility with
your design flow using this technology (Sec. 125.94(a)(5)(i)(B)). To
do this, you should use the following formula, which is derived from
the results of EPA's costing equations for a facility like yours using
the selected technology:
[GRAPHIC] [TIFF OMITTED] TR09JY04.001
Where:
yf = annualized capital and net O&M costs using actual
facility design intake flow,
xf = actual facility design intake flow (in gallons per
minute),
xepa = EPA assumed facility design intake flow (in gallons
per minute) (column 3),
yepa = Annualized capital and net O&M costs using EPA design
intake flow (column 7),and
m = design flow adjustment slope (column 13).
Rather than providing the detailed costing equations that EPA used
to calculate annualized capital and net O&M costs for facilities to use
each of the 14 modeled technologies, EPA has provided the simplified
formula above, which collapses the results of those equations for the
particular facility and technology into a single result
(yepa) and then allows the facility to adjust this result to
reflect its actual design intake flow, using a technology specific
slope for a facility like yours that is derived from the costing
equations. This allows facilities to perform the flow adjustment
required by Sec. 125.94(a)(5)(i)(B) in a straightforward and
transparent manner. Facilities, Directors, or members of the public who
wish to review the detailed costing equations should consult the
Technical Development Document, Chapter 3.
EPA has provided some additional information in Appendix A, beyond
that which is needed to perform the calculations in Sec.
125.95(a)(5)(ii), to facilitate comparison of the results obtained
using formula 1 to the detailed costing equations in the TDD, for those
who wish to do so. EPA does not expect facilities or permit writers to
do this, and has in fact provided the simplified formula to preclude
the need for doing so, but is providing the additional information to
increase transparency. Thus, for informational purposes, the total
capital cost (not annualized), baseline O&M cost, and post construction
O&M cost from which the annualized capital and net O&M costs using EPA
design intake flow (yepa in column 7) are derived are listed
separately in columns 4 through 6. To calculate yepa, EPA
annualized the total capital cost using a 7 percent discount rate and
10 year amortization period, and added the result to the difference
between the post construction O&M costs and the baseline O&M costs.
Note that some entries in Appendix A have NA indicated for the EPA
assumed design intake flow in column 2. These are facilities for which
EPA projected that they would already meet otherwise applicable
performance standards based on existing technologies and measures. EPA
projected zero compliance costs for these facilities, irrespective of
design intake flow, so no flow adjustment is needed. These facilities
should use $0 as their value for the costs considered by EPA for a like
facility in establishing the applicable performance standards. EPA
recognizes that these facilities will still incur permitting and
monitoring costs, but these are not included in the cost comparison for
the reasons stated above.
Step 3: Determine the annualized net revenue loss associated with
net construction downtime that EPA modeled for the facility to install
the technology (Sec. 125.94(a)(5)(i)(C)) and the annualized pilot
study costs that EPA modeled for the facility to test and optimize the
technology (Sec. 125.94(a)(5)(i)(D)). The sum of these two figures is
listed in column 10. For informational purposes, the total (not
annualized) net revenue losses from construction downtime, and total
(not annualized) pilot study costs are listed separately in columns 8
and 9. These two figures were annualized using a 7 percent discount
rate and 30 year amortization period and the results added together to
get the annualized facility downtime and pilot study costs in column
10.
Step 4: Add the annualized capital and O&M costs using actual
facility design intake flow (yf from step 2), and the
annualized facility downtime and pilot study costs (column 10 from step
3) to get the preliminary costs considered by EPA for a facility like
yours (Sec. 125.94(a)(5)(i)(E)).
Step 5: Determine which performance standards in Sec. 125.94(b)(1)
and (2) (i.e., impingement mortality only, or impingement mortality and
entrainment) are applicable to your facility, and compare these to the
performance standards on which EPA's cost estimates are based, listed
in column 11 (Sec. 125.94(a)(5)(i)(F)). If the applicable performance
standards and those on which EPA's cost estimates are based are the
same, then the preliminary costs considered by EPA for a facility like
yours are the final costs considered by EPA for a facility like yours.
If only the impingement mortality performance standards are applicable
to your facility, but EPA based its cost estimates on
[[Page 41647]]
impingement mortality and entrainment performance standards, then you
should divide the preliminary costs by a factor of 2.148 to get the
final costs. If impingement mortality and entrainment performance
standards are applicable to your facility, but EPA based its cost
estimates on impingement mortality performance standards only, then you
should multiply the preliminary costs by 2.148 to get the final costs.
In calculating compliance costs, EPA projected what performance
standards would be applicable to the facility based on available data.
However, because of both variability and uncertainty in the underlying
parameters that determine which performance standards apply (e.g.,
capacity utilization rate, mean annual flow), it is possible that in
some cases the performance standards that EPA projected are not
correct. The adjustment factor of 2.148 was determined by taking the
ratio of median compliance costs for facilities to meet impingement
mortality and entrainment performance standards over median compliance
costs for facilities to meet impingement mortality performance
standards only. While using this adjustment factor will not necessarily
yield the exact compliance costs that EPA would have calculated had it
had current information, EPA believes the results are accurate enough
for determining whether a facility's actual compliance costs are
``significantly greater than'' the costs considered by EPA for a like
facility in establishing the applicable performance standards. EPA
believes it is preferable to provide a simple and transparent
methodology for making this adjustment that yields reasonably accurate
results, rather than a much more complex methodology that would be
difficult to use and understand (for the facility, Director, and
public), even if the more complex methodology would yield slightly more
accurate results.
The Site-Specific Technology Plan is developed based on the results
of the Comprehensive Cost Evaluation Study and must contain the
following information:
A narrative description of the design and operation of all
existing and proposed design and construction technologies, operational
measures, and/or restoration measures that you have selected in
accordance with Sec. 125.94(a)(5);
An engineering estimate of the efficacy of the proposed
and/or implemented design and construction technologies or operational
measures, and/or restoration measures. This estimate must include a
site-specific evaluation of the suitability of the technologies or
operational measures for reducing impingement mortality and/or
entrainment (as applicable) of all life stages of fish and shellfish
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, if applicable, site-
specific technology prototype or pilot studies. If restoration measures
will be used, you must provide a Restoration Plan that includes the
elements described in Sec. 125.95 (b)(5);
A demonstration that the proposed and/or implemented
design and construction technologies, operational measures, and/or
restoration measures achieve an efficacy that is as close as
practicable to the applicable performance standards of Sec. 125.94(b)
without resulting in costs significantly greater than either the costs
considered by the Administrator for a facility like yours in
establishing the applicable performance standards, or as appropriate,
the benefits of complying with the applicable performance standards at
your facility; and,
Design and engineering calculations, drawings, and
estimates prepared by a qualified professional to support the elements
of the Plan.
2. Facility's Costs Significantly Greater Than the Benefits of
Complying With Performance Standards
A facility demonstrating that its costs are significantly greater
than the benefits of complying with performance standards must perform
and submit a Comprehensive Cost Evaluation Study, a Benefits Valuation
Study, and a Site-Specific Technology Plan.
The Comprehensive Cost Evaluation Study is discussed in the
previous section. It requires the same information for a cost-benefit
site-specific determination as for a cost-cost site-specific
determination, except that the demonstration in Sec.
125.95(b)(6)(i)(B) must show that the facility's actual compliance
costs significantly exceed the benefits of meeting the applicable
performance standards at the facility.
The Benefits Valuation Study requires that a facility use a
comprehensive methodology to fully value the impacts of impingement
mortality and entrainment at its site and the benefits of complying
with the applicable performance standards. In addition to the valuation
estimates, the benefit study must include the following:
A description of the methodology(ies) used to value
commercial, recreational, and ecological benefits (including any non-
use benefits, if applicable);
Documentation of the basis for any assumptions and
quantitative estimates. If you plan to use an entrainment survival rate
other than zero, you must submit a determination of entrainment
survival at your facility based on a study approved by the Director;
An analysis of the effects of significant sources of
uncertainty on the results of the study;
If requested by the Director, a peer review of the items
you submit in the Benefits Valuation Study. You must choose the peer
reviewers in consultation with the Director who may consult with EPA
and Federal, State, and Tribal fish and wildlife management agencies
with responsibility for fish and wildlife potentially affected by your
cooling water intake structure. Peer reviewers must have appropriate
qualifications depending upon the materials to be reviewed.
A narrative description of any non-monetized benefits that
would be realized at your site if you were to meet the applicable
performance standards and a qualitative assessment of their magnitude
and significance.
All benefits, whether expressed qualitatively or quantitatively,
should be addressed in the Benefits Valuation Study and considered by
the Director in determining whether compliance costs significantly
exceed benefits.
The benefits assessment should begin with an impingement and
entrainment mortality study, which quantifies both the baseline
mortality as well as the expected change from rule compliance. The
benefits assessment should include a qualitative and/or quantitative
description of the benefits that would be produced by compliance with
the applicable performance standards at the facility site and, to the
extent feasible, monetized (dollar) estimates of all significant
benefits categories using well established and generally accepted
valuation methodologies. The first benefit category to consider is use
benefits, which includes such benefits as those to commercial and
recreational fishermen. Well-established revealed preference and market
proxy methods exist for valuing use benefits, and these should be used
in all cases where the impingement and entrainment mortality study
identifies substantial impacts to harvested or other relevant species.
The second benefit category to consider is non-use benefits. Non-
use benefits may arise from reduced impacts to ecological resources
that the public considers important, such as threatened and endangered
species. Non-use benefits can generally only be monetized through the
use of stated
[[Page 41648]]
preference methods. When determining whether to monetize non-use
benefits, permittees and permit writers should consider the magnitude
and character of the ecological impacts implied by the results of the
impingement and entrainment mortality study and any other relevant
information.
In cases where an impingement mortality and entrainment
characterization study identifies substantial harm to a threatened or
endangered species, to the sustainability of populations of important
species of fish, shellfish or wildlife, or to the maintenance of
community structure and function in a facility's waterbody or
watershed, non-use benefits should be monetized.\50\
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\50\ In cases where harm cannot be clearly explained to the
public, monetization is not feasible because stated preference
methods are not reliable when the environmental improvement being
valued cannot be characterized in a meaningful way for survey
respondents.
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In cases where an impingement mortality and entrainment
characterization study does not identify substantial harm to a
threatened or endangered species, to the sustainability of populations
of important species of fish, shellfish or wildlife, or to the
maintenance of community structure and function in a facility's
waterbody or watershed, monetization is not necessary.
Permittees should consult with their permitting authority regarding
their plans for assessing ecological and non-use benefits, including
whether they plan to conduct a stated preference study and if so, the
basic design of the study, including such items as target population,
sampling strategy, approximate sample size, general survey design, and
other relevant information. When conducting quantitative benefits
assessments, permittees should carefully review and follow accepted
best practices for such studies. A discussion of best practices
regarding valuation can be found in EPA's Guidelines for Preparing
Economic Analyses (EPA 2000, EPA 240-R-00-003, September 2000) and OMB
Circular A-4: Regulatory Analysis (September 17, 2003,
www.whitehouse.gov/omb/inforeg/circular_a4.pdf). In their benefits
assessment, the permittee should present the results, as well as
clearly describe the methods used, the assumptions made, and the
associated uncertainties.
It is recommended that the permittee and Director seek peer review
of the major biological and economic aspects of the final benefits
assessment. The goal of the peer review process is to ensure that
scientific and technical work products receive appropriate levels of
critical scrutiny from independent scientific and technical experts as
part of the overall decision-making process. In designing and
implementing peer reviews, permittees and permit writers can look to
EPA's Science Policy Council Handbook--Peer Review (EPA 100-B-98-00,
January 1998, www.epa.gov) for guidance.
The Site-Specific Technology Plan is described in the previous
section. It requires the same information for a cost-benefit site-
specific determination as for a cost-cost site-specific determination,
except that the demonstration in Sec. 125.95(b)(6)(iii)(C) must show
that the proposed and/or implemented technologies and measures achieve
an efficacy that is as close as practicable to the applicable
performance standards without resulting in costs significantly greater
than the benefits of complying with the applicable performance
standards at your facility.
X. Engineering Cost Analysis
A. Technology Cost Modules
In the Notice of Data Availability (NODA) (68 FR 13522, March 19,
2003), the Agency presented an approach for developing compliance costs
that included a broad range of compliance technologies for calculating
compliance costs as opposed to the approach used for the proposal,
which was based on a limited set of technologies. In response to
comments, EPA revised the costing modules that were presented in the
NODA and used to develop the engineering costs for the final rule.
Modifications made include adding a new set of costing modules to
address the installation of fine-mesh wedgewire screens with open mesh
sizes less than 1 mm in width; revising construction down time needed
to relocate cooling water intake structures offshore; and reconsidering
the applicability of the double-entry, single-exit technology and its
ability to compensate for through-screen velocity issues for fine-mesh
applications.
The following modules were used to develop compliance costs for the
Agency's engineering cost analysis for the final rule:
Addition of fish handling and return system to an existing
traveling screen system;
Addition of fine-mesh screens (both with and without a
fish handling and return system) to an existing traveling screen
system;
Addition of a new, larger intake in front of an existing
intake screen system;
Addition of passive fine-mesh screen system (cylindrical
wedgewire) near shoreline with mesh width of 1.75 mm;
Addition of passive fine-mesh screen system (cylindrical
wedgewire) near shoreline with mesh width of 0.76 mm;
Addition of a fish net barrier system;
Addition of an aquatic filter barrier system;
Relocation of an existing intake to a submerged offshore
location (with velocity cap inlet, passive fine-mesh screen inlet with
mesh width of 1.75 mm, passive fine-mesh screen inlet with mesh width
of 0.76 mm, or onshore traveling screens);
Addition of a velocity cap inlet to an existing offshore
intake;
Addition of passive fine-mesh screen to an existing
offshore intake with mesh width of 1.75 mm;
Addition of passive fine-mesh screen to an existing
offshore intake with mesh width of 0.76 mm;
Addition or modification of a shoreline-based traveling
screen for an offshore intake system; and
Addition of dual-entry, single-exit traveling screens
(with fine-mesh) to a shoreline intake system.
Further explanation and derivation of each of these costing modules
and their application for the purposes of assessing costs is discussed
in the Technical Development Document. For explanation of how the
Agency applied these technology cost modules to determine compliance
costs, see section X.B below.
B. Model Facility Cost Development
In order to implement the technology costing modules discussed in
section X.A, the Agency used the same basic approach which was
described in the NODA for the estimation of costs at the model facility
level. This approach focuses as much as possible on site-specific
characteristics for which the Agency obtained data through the section
316(b) questionnaires. In addition, EPA used available geographic
information, including detailed topographic mapping and overhead
satellite imagery, to better utilize site-specific characteristics of
each model facility's intake(s) to determine the appropriate costing
modules for that facility. The Agency also utilized facility-specific
information collected for the regional benefits studies to further
inform the selection of compliance technology at model facilities. The
Technical Development Document provides the background and a more
detailed explanation of the
[[Page 41649]]
Agency's approach to model facility level costing, which has not
changed dramatically from that published in the NODA (68 FR 13522).
EPA's approach to model facility-level costing may be described as
follows. In order to project upgrades to technologies as a result of
compliance with today's final rule, the Agency utilized as much
information as was available about the characteristics of the
facilities expected to be within the scope of the rule. By
incorporating as many site-specific features as possible into the
design and implementation of its costing approach, the Agency has been
able to capture a representative range of compliance costs at what it
deems ``model facilities.'' However, it is infeasible for the Agency to
visit and study in detail all of the engineering aspects of each
facility complying with this rule (over 400 facilities could incur
technology-related compliance costs as a result of this rule).
Therefore, although the Agency has developed costs that represent EPA's
best effort to develop a site-specific engineering assessment for a
particular facility, this assessment does not address any site-specific
characteristics that only long-term study of each facility would
reveal. Hence, the Agency refers to its approach as a ``model''
facility approach.
In selecting technology modules for each model facility, EPA, to a
degree departed from its traditional least cost approach. The least
cost approach, traditionally utilized for estimating compliance
technology choices, relies on the principle that the complying plant
will choose to install the least cost technology that meets the minimum
standard. While the Agency is confident that the suite of available
technologies can achieve the performance standards on Sec. 125.94(b)
generally, EPA lacks sufficient data to determine the precise
performance of each technology on a site-specific basis for over 400
different applications. The Agency thus selected, based on criteria
published in the NODA, one of a set of best performing technologies
(rather than the least costly technology) that was suitable for each
model facility (or intake), in order to ensure that the technology on
which costs were based would in fact achieve compliance at that model
site. The criteria for selecting the best performing technology for a
model facility (or intake) utilized questionnaire data as the primary
tool in the assessment. For those facilities utilizing recirculating
cooling systems in-place, the Agency assigned no compliance actions as
they met the standards at baseline. The Agency then determined those
intakes (facilities) that met compliance requirements with technologies
in-place. These facilities received no capital or annual operating and
maintenance compliance upgrade costs (although they may receive
administrative or monitoring costs). The Agency categorized facilities
according to waterbody type from which they withdraw cooling water. The
Agency then sorted the intakes (facilities) within each waterbody type
based on their configuration as reported in the questionnaires.
Generally, the categories of intakes within one waterbody type are as
follows: canal/channel, bay/embayment/cove, shoreline, and offshore.
Once the intake (facility) is classified to this level the Agency
examines the type of technology in-place and compares that against the
compliance requirements of the particular intake (facility). For the
case of entrainment requirements, the intake technologies (outside of
recirculating cooling) that qualify to meet the requirements at
baseline are fine mesh screen systems, and combinations of far-offshore
inlets with passive intakes or fish handling/return systems. A small
subset of intakes has entrainment qualifying technologies in-place at
baseline (for the purposes of this costing effort). Therefore, in the
case of entrainment requirements, most facilities with the requirement
would receive technology upgrades. The methodology for choosing these
entrainment technologies is explained further on in this discussion.
For the case of impingement requirements, there are a variety of intake
technologies that qualify (for the purposes of this costing effort) to
meet the requirements at baseline. The intake types meeting impingement
requirements at baseline include the following: barrier net (the only
fish diversion system which qualifies), passive intakes (of a variety
of types), and fish handling and return systems. A significant number
of intakes (facilities) have impingement technology in-place that meets
the qualifications for this costing effort. Therefore, some intakes
(facilities) require no technology upgrades when only impingement
requirements apply. For facilities that do not pre-qualify for
impingement and/or entrainment technology in-place (for the purposes of
this costing effort), the Agency focuses next on questionnaire data
relating to the intake type--canal/channel, bay/ embayment/cove,
shoreline, and offshore. Within each intake type, the Agency further
classifies according to certain specific characteristics. For the case
of bays, embayments, and coves, the Agency determined if the intake is
flush, protruding, or recessed from shoreline. For the case of canals
and channels, the Agency similarly focuses on whether the intake is
flush, protruding, or recessed from a shoreline. For the case of
shoreline intakes, the Agency necessarily assessed whether the intake
is flush, protruding, or recessed. For the case of offshore intakes,
the Agency examines whether or not the intake has an onshore terminus
(or well) and assesses the characteristics of the onshore system. The
information the Agency gathers up to this point is sufficient to narrow
down the likely technology applications for each intake (facility).
However, in order to determine the best technology application, the
Agency also utilizes commercially available satellite images and maps
where available. The use of the satellite images and maps aided the
Agency in determining the potential for the construction of expanded
intakes in-front of existing intakes and the potential for an intake
modification to protrude into the waterbody (such as a near-shore t-
screen) due to the degree of navigational traffic in the near vicinity
of the intake and whether a protrusion might be tolerated, the
possibility of installing a barrier net system, obvious signs of strong
currents, the relative distance of a potentially relocated intake
inlet, the possibility for fish return installations of moderate
length, etc. The Agency was able to collect satellite images for most
intakes (facilities) for which it required the resource. However, in
some cases (especially those in the rural, mid-western U.S.), only maps
were available. Hence, for the case of a significant number facilities
located near small freshwater rivers/streams and lakes/reservoirs, the
Agency utilized only the questionnaire data and the overhead maps
available.
Once the Agency gathered the intake (facility) specific information
to this degree, the applicable list of technologies for each intake was
small (and in some cases only one technology would apply). Therefore,
the Agency examined any other sources of information, such as those
obtained for the regional benefits studies, to further narrow down the
best technology to meet the requirements of the rule for each model
intake (facility). Often, the decision was between just two or three
potential technologies. If there was no evidence in the Agency's
possession to suggest that the least-cost technology would not
function, then the Agency would select this technology. However, should
evidence imply that the least cost technology not be able to function
reliably or have a feasibility issue
[[Page 41650]]
related to site deployment (for example, a barrier net across a
navigable waterway or a fish handling and return system with an
extremely long return trough), then the Agency departed from the
``least-cost'' decision process and assigned the ``best-performing''
technology. In cases where more than one technology still remained
after ruling out a least-cost alternative due to evidence (which was a
rare occurrence), then the Agency attempted to balance the application
of the remaining technologies about a median, thereby assigning
moderately high costs for some cases and moderately low costs in
others. Therefore, for the case of national costs, the Agency's
application of technology cost modules reflect a reasonable national
average.
C. Facility Flow Modifications
In developing costs and benefits for the NODA, the Agency revised
intake flow information for a small subset of inscope facilities in an
effort to ensure the accuracy and quality of the data. In developing
costs and benefits for the final rule, the Agency has further refined
the intake flow information used.
Since the NODA, the Agency re-evaluated its original decision to
use the reported 1998 (the most recent of three years collected) annual
flows for Detailed Questionnaire (DQ) recipients for the calculation of
benefits. This, in turn, had an impact on the development of estimated
design intake flows for short-technical questionnaire (STQ) recipients.
As presented in the NODA, the Agency estimated design intake flows for
STQ facilities using a statistical methodology based on linear
regression of DQ recipients' annual intake flows and DQ recipients'
design intake flows to assess the design intake flow information for
facilities that responded to the short technical questionnaire. Because
the Agency asked STQ respondents for only their actual annual intake
flow for the 1998 reporting year only (or a typical operational year),
it was necessary to calculate design intake flow information for the
purpose of accurately assessing compliance costs. Therefore, for the
NODA and proposal, the Agency calculated design intake flows for STQ
facilities based on a model derived from only the 1998 DQ flow data. In
retrospect, the Agency determined that a more robust approach would be
to use all three years of annual DQ flows collected (1996--1998) and to
take advantage of the statistical abilities afforded by the expanded
data set (that is, to determine and exclude outliers). Hence, for this
final rule, the Agency has estimated the costs and benefits of the rule
using improved flow data over the NODA and proposal. For the case of
STQ facilities, the Agency has utilized an improved data set for the
calculation of design intake flows, and, in turn, the calculation of
compliance costs.
XI. Economic Analysis
A. Final Rule Costs
EPA estimates that the final rule will have total annualized social
(pre-tax) costs of $389 million ($2002). Of this total, $385 million
are direct costs incurred by facilities and $4 million are
implementation costs incurred by State and Federal government. On a
post-tax basis, direct costs incurred by facilities subject to the
final rule are expected to be $249 million, including one-time
technology costs of complying with the rule, a one-time cost of
installation downtime, annual operating and maintenance costs, and
permitting costs (initial permit costs, annual monitoring costs, and
permit reissuance costs).
These cost estimates include compliance costs for eight facilities
that are projected to be base case closures.\51\ Excluding compliance
costs for projected base case closure facilities would result in
annualized pre-tax facility compliance costs of approximately $376
million and annualized post-tax facility compliance costs of
approximately $244 million. The equivalent annualized post-tax facility
compliance costs were $178 million at proposal and $265 million for the
NODA preferred option. The cost difference between proposal and the
NODA is due primarily to the expanded range of technology options
considered for the NODA and the ``best performing technology''
selection criteria used to assign cost modules to model facilities (see
section IV of the NODA, 68 FR 13522, 13526).
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\51\ There are eight base case closures in 2008, the first model
run year of the IPM. See section XI.B.1 for further discussion of
analyses using the IPM.
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In selecting technology modules for each model facility, EPA, to a
degree departed from its traditional least cost approach. The least
cost approach, traditionally utilized for estimating compliance
technology choices relies on the principle that the complying plant
will choose to install the least cost technology that meets the minimum
standard. While the Agency is confident that the suite of available
technologies can achieve compliance with the proposed performance
requirements (60-90% reduction in entrainment and 80-95% reduction in
impingement mortality relative to the calculation baseline), EPA lacks
sufficient data and resources to determine the precise performance of
each technology on a site-specific basis for over 400 different
applications. The Agency thus selected, for subset of sites where
multiple technologies could be under consideration to meet the
requirements, a best performing technology (rather than the least
costly technology of the choices). The best performing technology
concept, when necessary to apply, relied on assigning technologies
about a median cost, with some choices above and below. Therefore, for
each model facility (or intake), in order to ensure that the technology
on which costs were based would in fact achieve compliance at that
model site, the Agency could not rely on a one-size fits all, least-
cost approach. The cost difference between the NODA and the final rule
is primarily a result of decreases in capital and permitting cost
estimates.
Capital and O&M costs changed between NODA and final primarily due
to three factors. The Agency revised its application of certain
technology cost modules (especially the dual-entry, single-exist
traveling screen module) between NODA and final, in response to
comments received. The Agency revised its costs for some passive screen
technology costs utilizing finer mesh screens, in response to comments
received. In addition, the Agency credited facilities with far offshore
intakes plus certain impingement controls in-place (such as fish
handling or passive inlet screens) as having met the requirements for
entrainment reduction at baseline. This final change was also in
response to comments that recommended that the Agency correlate the
benefits assessment more closely with the engineering cost estimates.
The overall net result of these changes was to slightly decrease total
capital and total O&M costs of the rule. However, on the basis of
facilities expected to upgrade technologies to meet the rule
requirements, the capital and O&M costs did increase slightly.
There are many uncertainties surrounding any forecast. The national
annualized costs estimated for today's rule were necessarily developed
using several major assumptions which are subject to uncertainty. The
Agency attempted to develop a plausible range of costs focusing on four
major cost assumptions surrounding the direct private cost of $385
million that may be incurred when facilities implement this rule.
Uncertainty factors were analyzed for the cost assumptions affecting
technology capital, technology O&M, downtime for connection outages,
initial permitting, and pilot studies. This
[[Page 41651]]
uncertainty analysis provided a range of costs for the national private
(direct) annualized compliance costs of $377 to $437 million. This
range was developed by examining the effect of capacity utilization
assumptions on technology capital and O&M costs; the effects of
annualization time frame for initial permitting and downtime connection
outages; the effects of sampling frequency and data analysis on pilot
study costs; and excluding costs for facilities that have partial
recirculating systems. For more information on the Agency's analysis of
this issue, see DCN 6-5045.
------------------------------------------------------------------------
Base case facility
Cost assumption compliance cost Sensitivity
estimate estimate
------------------------------------------------------------------------
Annualization time frame for 30 years.......... 20 years.
initial permitting and downtime.
Partial recirculation system No................ Yes.
credit.
Capacity utilization rate used Based on 2008 IPM Based on historic
to estimate technology capital Forecast. utilization.
and O&M.
Pilot study costs............... Moderate sampling High sampling
frequency. frequency.
------------------------------------------------------------------------
B. Final Rule Impacts
1. Energy Market Model Analysis
At proposal and for the NODA, EPA used an electricity market model,
the Integrated Planning Model (IPM[reg]), to identify potential
economic and operational impacts of various regulatory options
considered for the Phase II regulation.\52\ Electric reliability impact
analyses could not be performed using the IPM model. EPA does recognize
that due to down time or connection outages estimated to install
several of the technologies, and the number of facilities that will
need to come into compliance over the first few years after today's
rule is promulgated, there may be short-term electric reliability
issues unless care is taken within each region to coordinate outages
with the North American Electric Reliability Council (NERC) and where
possible with normal scheduled maintenance operations. Noting this, EPA
has provided flexibility in today's rule so that facilities can develop
workable construction schedules with their permit writers and
coordinate with NERC to appropriately schedule down times (see Sec.
125.95(b)(4)(ii)). As noted in the NERC 2003 Long-term Reliability
Assessment, the overall impact on reliability of any new environmental
requirements will ``* * * depend on providing sufficient time to make
the necessary modifications and the commercial availability of control
technologies.'' \53\ EPA conducted impact analyses at the market level,
by NERC region,\54\ and for facilities subject to the Phase II
regulation. Analyzed characteristics include changes in electricity
prices, capacity, generation, revenue, cost of generation, and income.
These changes were identified by comparing two scenarios: (1) The base
case scenario (in the absence of any section 316(b) Phase I and Phase
II regulation) and (2) the post compliance scenario (after the
implementation of the new section 316(b) Phase II regulations). At
proposal, EPA used the results of these comparisons to assess the
impacts of the proposed rule and two of the five alternative compliance
options considered by EPA: (1) The ``Intake Capacity Commensurate with
Closed-Cycle, Recirculating Cooling System based on Waterbody Type/
Capacity'' option and (2) the ``Intake Capacity Commensurate with
Closed-Cycle, Recirculating Cooling System for All Facilities'' option.
For the NODA, EPA assessed the impacts of the preferred option and the
``Intake Capacity Commensurate with Closed-Cycle, Recirculating Cooling
System based on Waterbody Type/Capacity'' option, making several
changes to the analysis (major changes included changes in IPM model
aggregation, capacity utilization assumptions, and treatment of
installation downtime; see section V.A of the NODA).
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\52\ For a detailed description of the IPM see Chapter B3 of the
Economic and Benefits Analysis (EBA) document in support of the
proposed rule (DCN 4-0002; http://www.epa.gov/ost/316b/econbenefits/b3.pdf).
\53\ North American Electric Reliability Council (NERC). 2003.
2003 Long-term Reliability Assessment: The Reliability of Bulk
Electric Systems in North America; prepared December 2003.
\54\ The IPM models the ten NERC regions that cover the
continental U.S.: ECAR (East Central Area Reliability Coordination
Agreement), ERCOT (Electric Reliability Council of Texas), FRCC
(Florida Reliability Coordinating Council), MAAC (Mid-Atlantic Area
Council), MAIN (Mid-America Interconnected Network, Inc.), MAPP
(Mid-Continent Area Power Pool), NPCC (Northeast Power Coordination
Council), SERC (Southeastern Electricity Reliability Council), SPP
(Southwest Power Pool), and WSCC (Western Systems Coordinating
Council). Electric generators in Alaska and Hawaii are not
interconnected with these regions and are not modeled by the IPM.
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Since publication of the NODA, EPA has conducted further IPM
analyses. The following sections present a discussion of changes to the
analysis since the NODA and the results of the re-analysis of the final
rule.
a. Changes to the IPM analyses since the NODA. EPA did not change
its IPM assumptions and modeling procedures for this final rule. EPA
continued to use the 2000 version of the IPM model to perform the final
rule analysis. In the 2003 current version of the IPM, the model has
been updated to include, among other things, effects of the State
Multi-Pollutant regulations and the New Source Review settlements on
environmental compliance costs associated with the IPM base case.
Further, the 2003 version of the IPM model includes updated costs for
existing facilities such as life extension costs. However, a few
general changes affect the results presented in the following
subsection. These changes are outlined in section VI.A and include the
following: An increase in the estimated number of in-scope Phase II
facilities from 551 to 554; revisions of technology, operating and
maintenance, and permitting/monitoring costs; and changes to the
assumption of construction downtimes for compliance technologies other
than recirculating cooling towers.
b. Revised results for the Final Rule. This section presents the
revised impact analysis of the final rule. The impacts of compliance
with the final rule are defined as the difference between the modeling
results for the base case scenario and the modeling results for the
post-compliance scenario. Two base case scenarios were used to analyze
the impacts associated with the final rule. The first base case
scenario was developed using EPA's electricity demand assumption. Under
this assumption, demand for electricity is based on the Annual Energy
Outlook (AEO) 2001 forecast adjusted to account for efficiency
improvements not factored into AEO's projections of electricity sales.
The second base case was developed using the unadjusted electricity
demand from the AEO 2001. The results presented in this section use the
first, EPA-adjusted base case.
[[Page 41652]]
Results using the second base case are presented in the Appendix of
Chapter B3 of the final EBA.
EPA analyzed impacts of the final rule using data from model run
year 2010. Model run year 2010 was chosen to represent the effects of
the final rule for a typical year in which all facilities are expected
to be in compliance (for this analysis, EPA assumed that facilities
come into compliance between 2005 and 2009; in reality, compliance is
expected to begin in 2008).\55\ The analysis was conducted at two
levels: the market level including all facilities (by NERC region) and
the Phase II facility level (including analyses of the in-scope Phase
II facilities as a group and of individual Phase II facilities). The
results of these analyses are presented in the following subsections.
---------------------------------------------------------------------------
\55\ EPA also analyzed potential market-level impacts of the
final rule for a year during which some Phase II facilities
experience installation downtimes. This analysis used output from
model run year 2008. See Chapter B3, section B3-4.3 of the final EBA
for the results of this analysis.
---------------------------------------------------------------------------
i. Market-level impacts of the Final Rule. The market-level
analysis includes results for all generators located in each NERC
region including facilities both in-scope and out-of-scope of the
proposed Phase II rule. Exhibit XI-1 presents five measures used by EPA
to assess market-level impacts associated with the final rule, by NERC
region: (1) Incremental capacity closures, calculated as the difference
between capacity closures under the final rule and capacity closures
under the base case; (2) incremental capacity closures as a percentage
of baseline capacity; (3) post-compliance changes in variable
production costs per MWh, 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
wholesale prices received by facilities for the sale of electric
generation; and (5) post-compliance changes in pre-tax income, where
pre-tax income is defined as total revenues minus the sum of fixed and
variable O&M costs, fuel costs, and capital costs. Additional results
are presented in Chapter B3: Electricity Market Model Analysis (section
B3-4.1) of the Economic and Benefits Analysis (EBA) in support of the
final rule (DCN 6-0002). Chapter B3 also presents a more detailed
interpretation of the results of the market-level analysis.
Exhibit XI-1.--Market-Level Impacts of the Final Rule (2010)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Incremental closures Change in
-------------------------------- variable Change in Change in pre-
NERC region Baseline production energy price tax income
capacity (MW) Capacity (MW) % of baseline cost per MWh per MWh ($2002)
capacity (percent) (percent) (percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
ECAR.................................................... 118,529 .............. -0.0 0.1 0.3 -0.8
ERCOT................................................... 75,290 .............. -0.0 0.0 5.8 -5.6
FRCC.................................................... 50,324 .............. -0.0 0.4 0.6 -3.0
MAAC.................................................... 63,784 .............. -0.0 0.4 0.1 -0.9
MAIN.................................................... 59,494 94 0.2 0.1 -0.3 -0.3
MAPP.................................................... 35,835 .............. -0.0 -0.1 -0.3 0.1
NPCC.................................................... 72,477 .............. -0.0 -0.5 -0.1 -1.9
SERC.................................................... 194,485 .............. -0.0 0.0 -0.1 -0.5
SPP..................................................... 49,948 .............. -0.0 -0.1 -0.2 -0.4
WSCC.................................................... 167,748 58 0.0 0.0 0.0 -0.5
-----------------
Total............................................... 887,915 152 0.0 0.0 n/a -1.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Two of the ten NERC regions modeled, MAIN and WSCC, are estimated
to experience economic closures of existing capacity as a result of the
final rule. These closures represent negligible percentages of regional
baseline capacity (0.2% in MAIN and less than 0.1% in WSCC) and of
total U.S. baseline capacity (less than 0.1%). EPA estimates that four
NERC regions will experience increases in variable production costs per
MWh, although the largest increase will not exceed 0.4 percent. In
addition, four NERC regions will experience an increase in energy
prices under the final rule. Of these, only ERCOT is estimated to
experience an increase of more than 1.0 percent (5.8 percent). Pre-tax
incomes are estimated to decrease in all but one region, but the
majority of these changes will be less than 1.0 percent. ERCOT is
estimated to experience the largest decrease in pre-tax income (-5.6
percent). Only one region, MAPP, will experience an increase in market-
level pre-tax income (0.1 percent).
ii. Facility-level impacts of the Final Rule. The results from
model run year 2010 were used to analyze impacts on Phase II facilities
at two levels: (a) Potential changes in the economic and operational
characteristics of the group of in-scope Phase II facilities as a whole
and (b) potential changes to individual facilities within the group of
Phase II facilities. Exhibit XI-2 presents five measures used by EPA to
assess impacts to the group of Phase II facilities associated with the
final rule, by NERC region: (1) Incremental capacity closures,
calculated as the difference between capacity closures under the final
rule and capacity closures under the base case; (2) incremental
capacity closures as a percentage of baseline capacity; (3) post-
compliance changes in variable production costs per MWh, calculated as
the sum of total fuel and variable O&M costs divided by total
generation; (4) post-compliance changes in electricity generation; and
(5) post-compliance changes in pre-tax income, where pre-tax income is
defined as total revenues minus the sum of fixed and variable O&M
costs, fuel costs, and capital costs. Additional results are presented
in section B3-4.2 of the final EBA. Chapter B3 also presents a more
detailed interpretation of the results of the analysis of Phase II
facilities as a group.
[[Page 41653]]
Exhibit XI-2.--Impacts on Phase II Facilities of the Final Rule (2010)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Incremental closures Change in
-------------------------------- variable Change in Change in pre-
NERC region Baseline production generation tax income
capacity (MW) Capacity (MW) % of baseline cost per MWh (percent) (percent)
capacity (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
ECAR.................................................... 82,313 0 0.0 0.0 -0.2 -1.0
ERCOT................................................... 43,522 0 0.0 -0.7 -1.8 -10.4
FRCC.................................................... 27,537 0 0.0 0.3 -0.8 -4.0
MAAC.................................................... 34,376 0 0.0 0.0 0.2 -1.4
MAIN.................................................... 36,498 94 0.3 0.1 -0.3 -0.6
MAPP.................................................... 15,749 0 0.0 -0.1 0.0 -0.3
NPCC.................................................... 37,651 0 0.0 -1.7 -3.6 -4.3
SERC.................................................... 107,450 0 0.0 -0.3 -0.2 -0.7
SPP..................................................... 20,471 0 0.0 -0.4 -0.7 -1.0
WSCC.................................................... 28,431 58 0.2 -0.9 -4.3 -10.4
-----------------
Total............................................... 433,998 152 0.0 -0.6 -0.8 -1.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Identical to the market-level results, EPA estimates that 152 MW,
or less than 0.1%, of capacity at Phase II facilities will close as a
result of the final rule. (If the AEO's higher demand forecast is
utilized, it would result in a larger capacity of early closures of 493
MW or more than 0.1%. See EBA B3 appendix Table B3-A-3.) MAIN (94 MW)
and WSCC (58 MW) are the only regions that are estimated to experience
incremental capacity closures. In both regions, these incremental
closures represent less than 0.3% of baseline capacity at Phase II
facilities. Variable production costs per MWh at Phase II facilities
increase in two regions and decrease in six regions under the final
rule. No region experiences an increase in Phase II facility production
costs that exceeds 0.5 percent, while Phase II facilities in NPCC and
WSCC see reductions of 1.7 percent and 0.9 percent, respectively. Phase
II facilities in three NERC regions are estimated to experience
decreases in generation in excess of 1.0 percent as a result of the
final rule. The largest is estimated to be in WSCC, where Phase II
facilities experience a 4.3 percent reduction in generation. Overall,
EPA estimates that pre-tax income will decrease by 1.8 percent for the
group of Phase II facilities. The effects of this change are
concentrated in a few regions: WSCC and ERCOT each experience
reductions in pre-tax income of 10.4 percent, which is driven by a
reduction in revenues (not presented in this exhibit) rather than an
increase in costs. NPCC and FRCC are estimated to experience a
reduction of 4.3 and 4.0 percent, respectively.
Results for the group of Phase II facilities as a whole may mask
shifts in economic performance among individual facilities subject to
this rule. To assess potential distributional effects, EPA analyzed
facility-specific changes between the base case and the post-compliance
case in (1) capacity utilization, defined as generation divided by
capacity times 8,760 hours, (2) electricity generation, (3) revenue,
(4) variable production costs per MWh, defined as variable O&M cost
plus fuel cost divided by generation, and (5) pre-tax income, defined
as total revenues minus the sum of fixed and variable O&M costs, fuel
costs, and capital costs.
Exhibit XI-3 presents the total number of Phase II facilities with
estimated degrees of change due to the final rule. This exhibit
excludes 17 in-scope facilities with estimated significant status
changes in 2010: Ten facilities are base case closures, one facility is
a full closure as a result of the final rule, and six facilities
changed their repowering decision between the base case and the post-
compliance case. These facilities are either not operating at all in
either the base case or the post-compliance case, or they experience
fundamental changes in the type of units they operate; therefore, the
measures presented in Exhibit XI-3 would not be meaningful for these
facilities. In addition, the change in variable production cost per MWh
of generation could not be developed for 57 facilities with zero
generation in either the base case or post-compliance scenario. For
these facilities, the change in variable production cost per MWh is
indicated as ``n/a.''
Exhibit XI-3.--Operational Changes at Phase II Facilities From the Final Rule (2010) \a\
----------------------------------------------------------------------------------------------------------------
Reduction Increase
Economic measures ------------------------------------------------------------ No N/A
3% 3% change
----------------------------------------------------------------------------------------------------------------
Change in Capacity Utilization 6 21 25 7 7 11 441 0
\b\............................
Change in Generation............ 4 6 46 11 5 18 428 0
Change in Revenue............... 83 30 45 142 8 16 194 0
Change in Variable Production 38 16 9 145 11 17 225 57
Costs/MWh......................
Change in Pre-Tax Income........ 115 109 213 44 11 15 11 0
----------------------------------------------------------------------------------------------------------------
\a\ For all measures percentages used to assign facilities to impact categories have been rounded to the nearest
10th of a percent.
\b\ The change in capacity utilization is the difference between the capacity utilization percentages in the
base case and post-compliance case. For all other measures, the change is expressed as the percentage change
between the base case and post-compliance values.
EPA estimates that the majority of Phase II facilities will not
experience changes in capacity utilization or generation due to
compliance with the final rule. Of those facilities with changes in
post-compliance capacity utilization and generation, most will
experience decreases in these measures. Exhibit XI-3 also indicates
that the majority of facilities with changes in variable production
costs will experience increases. However, about 85
[[Page 41654]]
percent of those increases are estimated to be 1.0 percent or less.
Changes in revenues at a majority of Phase II facilities will also not
exceed 1.0 percent. The largest effect of the final rule is estimated
to be on facilities' pre-tax income: the model projects that over 80
percent of facilities will experience a reduction in pre-tax income,
with about 40 percent of the overall total experiencing a reduction of
3.0 percent or greater.
2. Other Economic Analyses
EPA updated its other economic analyses conducted at proposal and
for the NODA to determine the effect of changes made to the assumptions
for the final rule on steam electric generating facilities. This
section discusses changes made to EPA's methodology and assumptions and
presents the updated results. For complete results of this analysis,
refer to Chapter B2 of the final EBA. For complete results of the
proposal and the NODA analyses, refer to the chapters in Part B of the
EBA document in support of the proposed rule at http://www.epa.gov/waterscience/316b/econbenefits/ and DCN 5-3004 of the NODA docket.
It should be noted that the measures presented in this section are
provided in addition to the economic impact measures based on the
Integrated Planning Model (IPM[reg]) analyses (see section XI.B.1). The
following measures are used to assess the magnitude of compliance
costs; they are not used to predict closures or other types of economic
impacts on facilities subject to Phase II regulation.
a. Cost-to-revenue measure.
i. Facility-level analysis. EPA examined the annualized post-tax
compliance costs of the final rule as a percentage of baseline annual
revenues, for each of the 554 facilities expected to be subject to
Phase II of the section 316(b) regulation. This measure allows for a
comparison of compliance costs incurred by each facility with its
revenues in the absence of the Phase II regulation. The revenue
estimates are facility-specific baseline projections from the IPM base
case for 2008 (see section XI.B.1 for a discussion of EPA's analyses
using the IPM).\56\
---------------------------------------------------------------------------
\56\ EPA used 2008 rather than 2010 baseline revenues for this
analysis because 2008 is the first model run year specified in the
IPM analyses. EPA used the first model run year because it more
closely resembles the current operating conditions of in-scope
facilities than later run years (over time, facilities may be
increasingly affected by factors other than the Phase II
regulation).
---------------------------------------------------------------------------
Similar to the findings at proposal and for the NODA preferred
option, EPA estimates that a majority of the facilities subject to the
final rule, 413 out of 554 (75 percent), will incur annualized costs of
less than one percent of revenues. Of these, 314 facilities incur
compliance costs of less than 0.5 percent of revenues. In addition, 94
facilities (17 percent) are estimated to incur costs of between one and
three percent of revenues, and 39 facilities (7 percent) are estimated
to incur costs of greater than three percent. Eight facilities are
estimated to be base case closures.
ii. Firm-level analysis. The firms owning the facilities subject to
Phase II regulation may experience greater impacts than individual in-
scope facilities if they own more than one facility with compliance
costs. EPA therefore also analyzed the cost-to-revenue ratios 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 Dun and Bradstreet database for parent firms of investor-
owned utilities and nonutilities; and Form EIA-861 for all other parent
entities). This analysis showed that 126 unique domestic parent
entities own the facilities subject to Phase II regulation. EPA
compared the aggregated annualized post-tax compliance costs for each
facility owned by the 126 parent entities to the firms' total sales
revenue.
Since proposal, EPA has updated the parent firm determination for
Phase II facilities. EPA also updated the average Form EIA-861 data
used for this analysis from 1996-1998 (used at proposal) to 1997-1999
(used for the NODA) and 1999-2001 (used for the final rule). In
addition, EPA made one modification to the sources of revenue data used
in this analysis: At proposal, EPA used sales volume from Dun and
Bradstreet (D&B) for any parent entity listed in the database. If D&B
data were not available, EPA used the EIA database or the section
316(b) survey. For the NODA and final rule analyses, EPA used the D&B
database for privately-owned entities only. For other entities, EPA
used the EIA database. For the final rule analysis, EPA conducted
additional research (e.g., Securities and Exchange Commission 10-K
filings; company web sites) to collect revenue data for those firms
whose revenue was not reported in either D&B or Form EIA 861.
For the final rule, EPA estimates that of the 126 parent entities,
115 entities (91 percent) will incur annualized costs of less than one
percent of revenues. Of these, 105 entities incur compliance costs of
less than 0.5 percent of revenues. In addition, 10 entities (8 percent)
are estimated to incur costs of between one and three percent of
revenues, and only one entity (1 percent) is estimated to incur costs
of greater than three percent. The highest estimated cost-to-revenue
ratio for the final rule is 6.7 percent of the entities' annual sales
revenue (for the proposed rule, this value was 5.3 percent; for the
NODA preferred option, this value was 7.4 percent).
b. Cost per household. EPA also conducted an analysis that
evaluates the potential cost per household, if Phase II facilities were
able to pass compliance costs on to their customers. This analysis
estimates the average compliance cost per household for each North
American Electricity Reliability Council (NERC) region,\57\ using two
data inputs: (1) The average annual pre-tax compliance cost per
megawatt hour (MWh) of total electricity sales and (2) the average
annual MWh of residential electricity sales per household. For the
proposal and NODA analyses, EPA used 2000 electricity sales information
from Form EIA-861 (Annual Electric Power Industry Report); for the
final rule, EPA updated the electricity sales information to 2001.
---------------------------------------------------------------------------
\57\ There are twelve NERC regions: ASCC (Alaska Systems
Coordinating Council), ECAR (East Central Area Reliability
Coordination Agreement), ERCOT (Electric Reliability Council of
Texas), FRCC (Florida Reliability Coordinating Council), HI
(Hawaii), MAAC (Mid-Atlantic Area Council), MAIN (Mid-America
Interconnected Network, Inc.), MAPP (Mid-Continent Area Power Pool),
NPCC (Northeast Power Coordination Council), SERC (Southeastern
Electricity Reliability Council), SPP (Southwest Power Pool), and
WSCC (Western Systems Coordinating Council).
---------------------------------------------------------------------------
The results of this analysis show that the average annual cost of
the final rule per residential household is expected to range from
$0.50 in Alaska to $8.18 in Hawaii. The U.S. average is estimated to be
$1.21 per household.
c. Electricity price analysis. EPA also considered potential
effects of the final Phase II rule on electricity prices. EPA used
three data inputs in this analysis: (1) Total pre-tax compliance cost
incurred by facilities subject to Phase II regulation, (2) total
electricity sales, based on the Annual Energy Outlook (AEO), and (3)
prices by end use sector (residential, commercial, industrial, and
transportation), also from the AEO. All three data elements were
calculated by NERC region. For the proposal and NODA analyses, EPA used
the AEO 2002; for the final rule, EPA updated the data with the AEO
2003.
The results of the final rule analysis show that the annualized
costs of complying (in cents per KWh sales) range from 0.007 cents in
the SPP region to 0.019 cents in the NPCC region. To determine
potential effects of these
[[Page 41655]]
compliance costs on electricity prices, EPA compared the per KWh
compliance cost to baseline electricity prices by end use sector and
for the average of the sectors (the detailed results are presented in
Chapter B2 of the final EBA). This analysis projects that the greatest
increase in electricity prices will be in the WSCC region (0.3
percent). The average increase in electricity prices is estimated to be
0.16 percent (for the proposed rule, this value was 0.11 percent; for
the NODA preferred option, this value was 0.17 percent).
XII. Benefits Analysis
A. Introduction
This section presents EPA's estimates of the national environmental
benefits of the final section 316(b) regulations for Phase II existing
facilities. The assessed 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 all life stages of aquatic organisms. By reducing the levels
of impingement and entrainment, today's final rule will increase the
number of fish, shellfish, and other aquatic life in local aquatic
ecosystems. This, in turn, directly and indirectly improves use
benefits such as those associated with recreational and commercial
fisheries. Other types of benefits, including ecological and non-use
values, would also be enhanced. Section D provides an overview of the
types and sources of benefits anticipated, how these benefits are
estimated, the level of benefits achieved by the final rule, and how
monetized benefits compare to costs. The analysis was based on
impingement and entrainment data from facility studies. Most of these
studies counted losses of fish species only and considered only a
limited subset of the species impinged and entrained.
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 is challenging because of the many steps necessary to
link reductions 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 methodologies used in the
estimation of benefits of the final rule are largely built upon those
used for estimating use benefits of the proposed rule (see 67 FR 17121)
and the Notice of Data Availability (see 67 FR 38752). The Regional
Analysis Document for the Proposed Section 316 (b) Phase II Existing
Facilities Rule (see DCN 6-0003), hereafter known as the Regional Study
or Regional Analysis, provides EPA's complete benefit assessment for
the final rule.
National benefit estimates for this rule are derived from a series
of regional studies across the country from a range of waterbody types.
Section XII.B provides detail on the regional study design. Sections
XII.C through XII.E of this preamble describe the methods EPA used to
evaluate impingement and entrainment impacts at section 316(b) Phase II
existing facilities and to derive an economic value associated with any
such losses. Regional benefits are estimated using a set of statistical
weights for each in-scope facility that were developed as part of the
survey design. National benefit estimates are obtained by summing
regional benefits.
B. Regional Study Design
In its analysis for the section 316(b) Phase II proposal, EPA
relied on case studies of 19 facilities grouped by waterbody type
(oceans, estuaries/tidal rivers, lakes/reservoirs, and rivers/streams)
to estimate the potential economic benefits of reduced impingement and
entrainment. For the proposal analysis, EPA extrapolated estimates of
impingement and entrainment for each of the case study facilities to
other facilities located on the same waterbody type, including those in
different regions. However, a number of commenters expressed concern
about this method of extrapolation, noting that there are important
ecological and socioeconomic differences among different regions of the
country, even within the same waterbody type. To address this concern,
EPA revised the design of its analysis to examine cooling water intake
structure impacts and regulatory benefits at the regional level. This
involved the evaluation of impingement and entrainment data collected
by the industry for another 27 facilities in addition to the 19
facilities evaluated for proposal (for a total of 46 facilities).
Regional results were then combined to develop national estimates.
The Agency evaluated the benefits of today's rule in seven study
regions (North Atlantic, Mid Atlantic, South Atlantic, Gulf of Mexico,
California, Great Lakes, and Inland) based on similarities in the
affected ecosystems, aquatic species present, and characteristics of
commercial and recreational fishing activities within each of the seven
regions (see the background chapter of each study region in Parts B-H
of the Regional Analysis Document for maps of the study regions). The
five coastal regions (California, North Atlantic, Mid-Atlantic, South
Atlantic, and Gulf of Mexico) correspond to those of the National
Oceanographic and Atmospheric Association (NOAA) Fisheries. The Great
Lakes region includes all facilities in scope of the Phase II rule that
withdraw water from Lakes Ontario, Erie, Michigan, Huron, and Superior
or are located on a waterway with open fish passage to a Great Lake and
within 30 miles of the lake. The Inland region includes the remaining
facilities that withdraw water from freshwater lakes, rivers, and
reservoirs.
Based on comments on the proposal about study gaps, EPA used
available life history data to construct representative regional life
histories for groups of similar species with a common life history type
and groups used by NOAA Fisheries for landings data. Aggregation of
species into groups facilitated evaluation of facility impingement and
entrainment monitoring data. DCN 6-0003 provides a listing of the
species in each life history group evaluated by EPA and tables of the
life history data and data sources used for each group.
To obtain regional impingement and entrainment estimates, EPA
extrapolated losses from selected facilities with impingement and
entrainment data to all other facilities within the same region.
Impingement and entrainment data were extrapolated on the basis of
operational flow, in millions of gallons per day (MGD), where MGD is
the average operational flow over the period 1996-1998 as reported by
facilities in response to EPA's Section 316(b) Detailed Questionnaire
and Short Technical Questionnaire. Operational flow at each facility
was scaled using factors reflecting the relative effectiveness of
currently in-place technologies for reducing impingement and
entrainment. DCN 6-0003 provides details of the extrapolation
procedure. The goal of the analysis was to provide regional and
national estimates, so although there may be variability in the actual
losses (and benefits) per MGD across particular individual facilities,
EPA believes that this method of extrapolation is a reasonable basis
for developing an estimate of regional- and national-level
[[Page 41656]]
benefits for the purposes of this rulemaking.
C. The Physical Impacts of Impingement and Entrainment
EPA's benefits analysis is based on facility-provided biological
monitoring data. Facility data consist of records of impinged and
entrained organisms sampled at intake structures. However, factors such
as sampling methods and equipment, the number of samples taken, the
duration of the sampling period, and the unit of time and volume of
intake flow used to express impingement and entrainment, and other
aspects of facility sampling programs, are highly variable. The data
available covered organisms of all ages and life stages from newly laid
eggs to mature adults. Therefore, EPA converted sampling counts into
standardized estimates of the annual numbers of fish impinged or
entrained and then expressed these estimates in terms of metrics
suitable for the environmental assessment and economic benefits
analysis.
EPA notes that the facility studies evaluated may under or over
estimate impingement and entrainment rates. For example, facility
studies typically focus on only a subset of the fish species impacted
by impingement and entrainment, resulting in an underestimate of the
number of species and total losses. Studies often did not count early
life stages of organisms that were hard to identify. In addition, most
studies EPA found were conducted over 30 years ago, before activities
under the Clean Water Act improved aquatic conditions. In those
locations where water quality was degraded relative to current
conditions, the numbers and diversity of fish may have been depressed
during the monitoring period, resulting in low impingement and
entrainment estimates. On the other hand, use of linear methods for
projecting losses to fish and shellfish in the waterbody may overstate
or understate impacts. Nevertheless, EPA believes that the data from
the facility studies were sufficient for developing an estimate of the
relative magnitude of impingement and entrainment losses nation-wide.
Using standard fishery modeling techniques,\58\ EPA constructed
models that combined facility-derived impingement and entrainment
counts with relevant life history data to derive estimates of (1) age-
one equivalent losses (the number of individuals of different ages
impinged and entrained by facility intakes expressed as age-one
equivalents), (2) foregone fishery yield (pounds of commercial harvest
and numbers of recreational fish and shellfish that are not harvested
due to impingement and entrainment), and (3) foregone biomass
production (pounds 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). Estimates of foregone fishery yield include direct and
indirect losses of impinged and entrained species that are harvested.
Indirect losses represent the yield of these harvested species that is
lost due to losses of forage species. Details of the methods used for
these analyses are provided in Chapter A5 of Part A of the Regional
Analysis document. For all analyses, EPA used the impingement and
entrainment estimates provided by the facility and assumed 100%
entrainment mortality based on the analysis of entrainment survival
studies presented in Chapter A7 of Part A of the Regional Analysis
document.
---------------------------------------------------------------------------
\58\ Ricker, W.E. 1975. Computation and interpretation of
biological statistics of fish populations. Fisheries Research Board
of Canada, Bulletin 191; Hilborn, R. and C.J. Walters. 1992.
Quantitative Fisheries Stock Assessment, Choice, Dynamics and
Uncertainty. Chapman and Hall, London and New York.; Quinn, T.J.,
II. and R.B. Deriso. 1999. Quantitative Fish Dynamics. Oxford
University Press, Oxford and New York; Dixon, D.A. 1999. Catalog of
Assessment Methods for Evaluating the Effects of Power Plant
Operations on Aquatic Communities. Final Report. Report number TR-
112013.
---------------------------------------------------------------------------
Exhibit XII-1 presents EPA's estimates of the current level of
total annual impingement and entrainment in the study regions.
Exhibit XII-1.--Total Current Annual Impingement and Entrainment, by Region
----------------------------------------------------------------------------------------------------------------
Biomass
Age-one Foregone production
Region equivalents fishery yield foregone
(millions) (million lbs) (million lbs)
----------------------------------------------------------------------------------------------------------------
California...................................................... 312.94 28.87 43.62
North Atlantic.................................................. 65.70 1.26 289.12
Mid Atlantic.................................................... 1,733.14 67.2 110.90
South Atlantic.................................................. 342.54 18.34 28.31
Gulf of Mexico.................................................. 191.23 35.81 48.12
Great Lakes..................................................... 319.11 3.59 19.34
Inland.......................................................... 369 3.53 122.0
-----------------
Total for 554 facilities a.................................. 3,449.38 164.97 717.07
----------------------------------------------------------------------------------------------------------------
a National totals are sample-weighted and include Hawaii. Hawaii benefits are calculated based on average loss
per MGD in North Atlantic, Mid Atlantic, Gulf of Mexico, California and the total intake flow in Hawaii.
Exhibit XII-2 presents EPA's estimates of annual combined
impingement and entrainment reductions associated with the rule, by
region.
[[Page 41657]]
Exhibit XII-2.--Reductions In Annual Impingement and Entrainment, by Region
----------------------------------------------------------------------------------------------------------------
Biomass
Age-one Foregone production
Region equivalents fishery yield foregone
(millions) (million lbs) (million lbs)
----------------------------------------------------------------------------------------------------------------
California...................................................... 66.39 6.10 9.19
North Atlantic.................................................. 19.34 0.37 84.28
Mid Atlantic.................................................... 846.37 34.28 54.66
South Atlantic.................................................. 76.67 5.31 6.31
Gulf of Mexico.................................................. 89.55 13.84 16.50
Great Lakes..................................................... 159.52 1.73 8.51
Inland.......................................................... 116.83 1.06 20.90
-----------------
Total for 554 facilities a.................................. 1,420.20 64.92 217.09
----------------------------------------------------------------------------------------------------------------
a National totals are sample-weighted and include Hawaii. Hawaii losses are estimates based on average loss
rates per MGD at mainland coastal facilities and the total intake flow of the Hawaii facilities.
D. National Benefits of Rule
1. Overview
Economic benefits of today's rule can be broadly defined according
to categories of goods and services provided by the species affected by
impingement and entrainment at cooling water intake structures (CWIS).
The first category includes benefits that pertain to the use (direct or
indirect) of the affected fishery resources. The direct use benefits
can be further categorized according to whether or not affected goods
and services are traded in the market. The ``direct use'' benefits of
the 316(b) regulation 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. The second category includes benefits that are independent of any
current or anticipated use of the resource; these are known as ``non-
use'' or ``passive use'' values. Non-use benefits reflect human values
associated with existence and bequest motives.
The economic value of benefits is estimated using a range of
valuation methods, with the specific approach being dependent on the
type of benefit category, data availability, and other suitable
factors. Commercial fishery benefits are valued using market data.
Recreational angling benefits are valued using a combination of primary
and secondary research methods. For four of the seven study regions,
EPA developed original Random Utility Models (RUM) of recreational
angling behavior to estimate changes in recreational fishing values
resulting from improved fishing opportunities due to reductions in
impingement and entrainment. For the remaining three study regions
(Inland, North Atlantic, and South Atlantic), EPA used secondary
nonmarket valuation data (e.g., benefits transfer of nonmarket
valuation studies of the value of recreational angling). Because
methodologies for estimating use values for recreational and commercial
species are well developed, and some of these species have been
extensively studied, these values are relatively straightforward to
estimate. Sections XII.D.3 and XII.D.4 briefly summarize EPA's
approaches to measuring direct use benefits. A detailed description of
these approaches can be found in the 316(b) Regional Analysis document.
Estimating benefits from reduced impingement and entrainment of
forage species is more 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. To estimate indirect use benefits from
reducing impingement and entrainment losses to forage species, EPA used
a simple trophic transfer model that translates changes in impingement
and entrainment losses of forage fish into changes in the harvest of
commercial and recreational species that are subject to impingement and
entrainment (i.e., not the whole food web). Agency benefits estimates
are based on projected numbers of age 1 equivalent fish saved under the
final rule.
Neither forage species nor the unlanded portion of recreational and
commercial species have direct uses; therefore, they do not have direct
use values. Their potential value to the public is derived from two
alternative sources: their indirect use as both food and breeding
population for those fish harvested; and, the willingness of
individuals to pay for the protection of fish based on a sense of
altruism, stewardship, bequest, or vicarious consumption (non-use
benefits). To estimate non-use benefits from reducing losses to forage
species, and landed and unlanded commercial and recreational species,
EPA explored benefits transfer from nonmarket valuation studies of non-
use values of aquatic ecosystem improvements. EPA also explored the
transfer of secondary nonmarket valuation data to value losses of
threatened and endangered species. These efforts generated evidence
that non-use values could occur as a result of this rule, but EPA was
unable, by the time of publication of this final rule, to estimate
reliable valuations for the resource changes associated with the
expected results of this rule. EPA also investigated additional
approaches to illustrate public willingness-to-pay for potential
aquatic resource improvements that might occur because of this rule,
but the Agency did not have sufficient time to fully develop and
analyze these non-use benefit approaches for the final rule. Section
XII.D.5 briefly summarizes the approaches EPA considered for measuring
non-use benefits. Additional details about all approaches explored for
estimating benefits can be found in Section XII.F and the 316(b)
Regional Analysis document (DCN 6-0003).
As a consequence of the challenges associated with estimating
benefits, some benefits are described only qualitatively, because it
was not feasible, by the time of publication of this final rule, to
derive reliable quantitative estimates of the degree of impact and/or
the monetary value of reducing those impacts at the national level.
The remaining parts of Section XII.D below discuss details about
discounting future benefits, valuation of recreational fishing,
valuation of commercial fishing,
[[Page 41658]]
potential non-use benefits, and estimation of national benefits.
2. Timing of Benefits
Discounting refers to the economic conversion of future benefits
and costs to their present values, accounting for the fact that
individuals tend to value future outcomes less than comparable near-
term outcomes. Discounting is important when benefits and costs occur
in different years, and enables a comparison of benefits to costs
across different time periods.
For today's rule, benefits are discounted to calculate benefits in
a manner that makes the timing comparable to the annualized cost
estimates. The benefits of today's rule are estimated as the typical
benefits expected once the rule takes effect. The need to discount
arises from two different delays in the realization of benefits.
First, facilities will not immediately achieve compliance.
Facilities will face regulatory requirements once the rule takes
effect, but it will take time to make the required changes. EPA has
assumed, for the purpose of estimating benefits, that it will take one
year from the date when installation costs are incurred by a facility
until the required cooling water technology is operational. To account
for this lag, all benefits are discounted by one year from the date
when costs are incurred.
Second, an additional time lag will result between the time of
technology implementation and resulting increased fishery yields. This
lag stems from the fact that one or more years may pass between the
time an organism is spared impingement and entrainment and the time of
its ultimate harvest. For example, a larval fish spared from
entrainment (in effect, at age 0) may be caught by a recreational
angler at age 3, meaning that a 3-year time lag arises between the
incurred technology cost and the realization of the estimated
recreational benefit. Likewise, if a 1-year old fish is spared from
impingement and is then harvested by a commercial waterman at age 2,
there is a 1-year lag between the incurred cost and the subsequent
commercial fishery benefit. To account for this growth period, EPA
applied discounting by species groups in each regional study. EPA
conducted this analysis using two alternative discount rates as
recommended by OMB: 3% and 7%. The Agency notes that discounting was
applied to recreational and commercial fishing benefits only. Non-use
benefits are independent of fish age and size and, thus start as soon
as impingement and entrainment ceases.
3. Recreational Fishing Valuation
a. Recreational fishery methods for marine regions. For the five
coastal regions, EPA's analysis of recreational fishing benefits from
reduced impingement and entrainment is based on region-specific random
utility models (RUM) of recreational anglers' behavior, combined with
benefit function transfer. EPA developed original RUM models for four
of the five coastal regions: California, the Mid-Atlantic, the South
Atlantic, and the Gulf of Mexico. For the North Atlantic region, EPA
used a model developed by the National Marine Fisheries Service (NMFS)
by Hicks et al. (Hicks, Steinback, Gautam, and Thunberg, 1999. Volume
II: The Economic Value of New England and Mid-Atlantic Sportfishing in
1994--DCN 5-1271). Chapter A11 of the Regional Analysis document
provides detailed discussion of the methodology used in EPA's RUM
analysis.
The regional recreational fishing studies use information on
recreational anglers' behavior to infer anglers' economic value for the
quality of fishing in the case study areas. The models' main assumption
is that anglers will get greater satisfaction, and thus greater
economic value, from sites where the catch rate is higher due to
reduced impingement and entrainment, 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 modeled an angler's decision to visit a site
as a function of site-specific cost, fishing trip quality, and
additional site attributes such as presence of boat launching
facilities or fish stocking at the site.
The Agency used 5-year historical catch rates per hour of fishing
as a measure of baseline fishing quality in the regional studies. Catch
rate is one of the most important attributes 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 is
affected by fish mortality caused by impingement and entrainment.
The Agency used the estimated model coefficients in conjunction
with the estimated changes in impingement and entrainment in a given
region to estimate per-day welfare gain to recreational anglers due to
the final rule. For the North Atlantic region, EPA used model
coefficients estimated by Hicks et al. (1999) (DCN 4-1603).
To estimate the total economic value to recreational anglers for
changes in catch rates resulting from changes in impingement and
entrainment in a given region, EPA multiplied the total number of
fishing days for a given region by the estimated per-day welfare gain
due to the regulation. Because of data limitations, EPA was unable to
estimate participation models for all regions. For the California and
Great Lakes regions, the welfare estimates presented in the following
section are based on the estimates of baseline recreational fishing
participation provided by NOAA Fisheries. Thus, welfare estimates for
these two regions presented in today's rule do not account for changes
in recreational fishing participation due to the improved quality of
the fishing sites; however, these changes are likely to be small based
on results for other regions.
For the North Atlantic, Mid-Atlantic, South-Atlantic, and Gulf
regions, estimates are based on an average of baseline and predicted
increased fishing days. For these regions, EPA also estimated a trip
frequency model, which captures the effect of changes in catch rates on
the number of fishing trips taken per recreational season.
b. Recreational Fishery methods for the Great Lakes region. For the
Great Lakes region, EPA developed an original RUM model for the state
of Michigan, and transferred benefits to other Great Lakes states.
EPA's RUM model for the Great Lakes used data from the 2001 Michigan
Recreational Anglers survey, and information on historical catch rates
at Michigan fishing sites on Lakes Michigan, Huron, Superior, and Erie
provided by the Michigan Department of Natural Resources (MDNR, 2002,
DCN 4-1863). For the Great Lakes, EPA estimated a single RUM site
choice model for boat, shore, and ice-fishing modes. To transfer values
from the Michigan study to other Great Lakes states, EPA used harvest
information from state-level anglers' creel surveys, and participation
information from the U.S. Fish and Wildlife Service's Annual Survey of
Fishing, Hunting, and Wildlife-Related Recreation (U.S. Department of
the Interior, 2001, DCN 1-3082-BE).
c. Recreational fishery methods for the Inland region. For the
Inland region, EPA used a benefit transfer approach to value post
regulation recreational impingement and entrainment losses. EPA
conducted this analysis for five aggregate species groups: panfish,
perch, walleye/pike, bass, and anadromous gamefish. The panfish group
includes
[[Page 41659]]
species commonly classified as panfish, except perch, and includes
species that did not clearly fit in one of the other groups. Using
estimates collected from ten studies, the Agency calculated measures of
central tendency for the marginal value of catching one additional fish
for each species group. For detail see Chapter H4, of the Regional
Study Document, DCN 6-0003.
The mean marginal value per additional fish caught is $2.55 for
panfish, $0.38 for perch, $6.54 for walleye/pike, $4.18 for bass, and
$11.95 for anadromous gamefish. EPA combined these marginal values per
fish with estimates of recreational fishing losses that would be
prevented by the regulation to calculate the value of post regulation
recreational fishing benefits.
d. Results. As noted earlier in this section, anglers will get
greater satisfaction, and thus greater economic value, from sites where
the catch rate is higher, all else being equal. Decreasing impingement
and entrainment increases the number of fish available to be caught by
recreational anglers, thus increasing angler welfare.
Exhibit XII-3 shows the benefits that would result from reducing
impingement and entrainment losses by installing cooling water intake
technology under the final regulation. These values were discounted at
a 3 percent discount rate and a 7 percent discount rate to reflect the
fact that fish must grow to a certain size before they will be caught
by recreational anglers and to account for the one-year lag between the
date when installation costs are incurred and technology
implementation.
The greatest recreational fishing benefits from reducing
impingement and entrainment losses occur in the Mid-Atlantic, South
Atlantic, and Great Lakes regions. For more detailed information on the
models and results for each region, see Chapter 4 in Parts B through H
of the 316(b) Regional Analysis document.
Exhibit XII-3.--Post Regulation Recreational Fishing Benefits From Reducing Impingement and Entrainment Losses
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baseline Reduction in Benefits of final rule (million 2002$)
recreational recreational --------------------------------------------------------
Region fishery losses fishery losses
(number of fish) (number of fish) 0% Discount rate 3% Discount rate 7% Discount rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
California............................................... 5,787,661 1,735,668 $3.01 $2.45 $1.91
North Atlantic........................................... 916,396 267,536 1.59 1.38 1.17
Mid Atlantic............................................. 20,468,540 9,990,333 47.69 43.37 38.48
South Atlantic........................................... 4,314,983 985,769 7.49 6.85 6.17
Gulf of Mexico........................................... 3,854,850 1,201,806 6.79 6.18 5.53
Great Lakes.............................................. 4,743,384 2,283,896 15.51 13.95 12.21
Inland................................................... 3,188,097 930,610 3.34 2.98 2.58
--------------------
Total for 554 facilities \a\......................... 44,513,814 17,908,496 87.83 79.34 69.96
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ National totals are sample-weighted and include Hawaii. Hawaii benefits are calculated based on average loss per MGD in North Atlantic, Mid
Atlantic, Gulf of Mexico, California and the total intake flow in Hawaii.
The total for all regions, discounted at three percent, is $79.3
million; and the total for all regions, discounted at seven percent, is
$70.0 million.
e. Limitations and uncertainties. Because of the uncertainties and
assumptions of EPA's analysis, the estimates of benefits presented in
this section may understate the benefits to recreational anglers. In
estimating the benefits of improved recreational angling for the
California and Great Lakes regions, the Agency assigned a monetary
benefit only to the increases in consumer surplus for the baseline
number of fishing days. This approach omits the portion of recreational
fishing benefits that arise when improved conditions lead to higher
levels of participation. However, EPA's analysis of changes in
recreational fishing participation due to the section 316(b) regulation
for other coastal regions shows that the practical effect of this
omission is likely to be very small with respect to the total
recreational benefits assessment.
4. Commercial Fishing Valuation
Reductions in impingement and entrainment at cooling water intake
structures are expected to benefit the commercial fishing industry. The
effect is straightforward: reducing the number of fish killed will
increase the number of fish available for harvest. Measuring the
benefits of this effect is less straightforward. The next section
summarizes the methods EPA used to estimate benefits to the commercial
fishing sector. The following section presents the estimated commercial
fishing benefits for each region.
a. Methods. EPA estimated commercial benefits by first estimating
the value of total losses under current impingement and entrainment
conditions (or the total benefits of eliminating all impingement and
entrainment). Then, based on review of the empirical literature, EPA
assumed that producer surplus is equal to 0% to 40% of baseline losses.
Finally, EPA estimated benefits by applying the estimated percentage
reduction in impingement and entrainment to the estimated producer
surplus to obtain the estimated increase in producer surplus
attributable to the rule. This methodology was applied in each region
in the final analysis: the North Atlantic, Mid-Atlantic, South
Atlantic, Gulf of Mexico, California, Great Lakes, and Inland.
Additional detail on the methods EPA used for this analysis can be
found in Chapter A10 ``Methods For Estimating Commercial Fishing
Benefits'' in the Regional Analysis Document.
The process used to estimate regional losses and benefits to
commercial fisheries is as follows:
1. Estimate losses to commercial harvest (in pounds of fish)
attributable to impingement and entrainment under current conditions.
The basic approach is to apply a linear stock-to-harvest assumption,
such that if 10% of the current commercially targeted stock were
harvested, then 10% of the commercially targeted fish lost to
impingement and entrainment would also have been harvested absent
impingement and entrainment. The percentage of fish harvested is based
on data on historical fishing mortality rates.
2. Estimate gross revenue of lost commercial catch. The approach
EPA
[[Page 41660]]
uses to estimate the value of the commercial catch lost due to
impingement and entrainment relies on landings and dockside price ($/
lb) as reported by NOAA Fisheries for the period 1991-2001. These data
are used to estimate the revenue of the lost commercial harvest under
current conditions (i.e., the increase in gross revenue that would be
expected if all impingement and entrainment impacts were eliminated).
3. Estimate lost economic surplus. The conceptually suitable
measure of benefits is the sum of any changes in producer and consumer
surplus. The methods used for estimating the change in surplus depend
on whether the physical impact on the commercial fishery market appears
sufficiently small such that it is reasonable to assume there will be
no appreciable price changes in the markets for the impacted fisheries.
For the regions and magnitude of losses included in this analysis,
it is reasonable to assume no change in price, which implies that the
welfare change is limited to changes in producer surplus. The change in
producer surplus is assumed to be equivalent to a portion of the change
in gross revenues, as developed under step 2. EPA assumes a range of 0%
to 40% of the gross revenue losses estimated in step 2 as a means of
estimating the change in producer surplus. This is based on a review of
empirical literature (restricted to only those studies that compared
producer surplus to gross revenue) and is consistent with
recommendations made in comments on the EPA analysis at proposal.
4. Estimate increase in surplus attributable to the Phase II
regulations. Once the commercial surplus losses associated with
impingement and entrainment under baseline conditions have been
estimated according to the approaches outlined in steps 2 and 3, EPA
estimates the percentage reduction in impingement and entrainment at a
regional level.
b. Results. Exhibit XII-4 presents the estimated commercial fishing
benefits attributable to today's rule for each region. The results
reported include the total reduction in losses in pounds of fish, and
the value of this reduction discounted at 0%, 3%, and 7%. Total
commercial fishing benefits for the U.S., applying a 3% discount rate,
are estimated to range from $0 to $3.5 million. Applying a 7% rate they
range from $0 to $3.5 million.
Exhibit XII-4.--Annual Commercial Fishing Benefits \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current Benefits (millions of 2002$) \b\
(baseline) lost Reduction in lost --------------------------------------------------------
Region \c\ yield (million yield (million
lbs) lbs) 0% discount rate 3% discount rate 7% discount rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
California............................................... 11.5 2.4 0.7 0.5 0.4
North Atlantic........................................... 0.6 0.2 0.1 0.1 0.0
Mid Atlantic............................................. 48.7 25.3 1.8 1.7 1.5
South Atlantic........................................... 9.6 3.5 0.2 0.2 0.2
Gulf of Mexico........................................... 7.6 3.6 0.8 0.7 0.6
Great Lakes.............................................. 1.6 0.8 0.2 0.2 0.2
Inland U.S............................................... n/a n/a n/a n/a n/a
--------------------
Total for 554 facilities............................. 82.8 37.0 4.1 3.5 3.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Benefits are upper bound benefits based on 40% of gross revenue. The lower bound is $0.
\b\ Discounted to account for lag in implementation and lag in time required for fish lost to I&E to reach a harvestable age. Assumed it will take one
year from the date when installation costs are incurred to the date of installation. Thus, all benefits are discounted by one year from the date when
installation costs are incurred.
\c\ Regional totals are unweighted. National total estimates are weighted and include Hawaii.
c. Limitations and uncertainties. Some of the major uncertainties
and assumptions of EPA's commercial fishing analysis include:
Projected changes in harvest may be under-estimated
because the cumulative impacts of impingement and entrainment over time
are not considered.
The analysis only includes individuals that are directly
killed by impingement and entrainment, not their progeny, though given
the complexities of population dynamics, the significance of this
omission is not clear.
Projected changes in harvest may be too high or too low
because interactions with other stressors are not considered.
EPA used impingement and entrainment data provided by the
facilities. While EPA used the most current data available, in some
cases these data are 20 years old or older. Thus, they may not reflect
current conditions.
EPA assumes a linear stock-to-harvest relationship (i.e.,
a 13% change in stock would have a 13% change in landings); this may be
low or high, depending on the condition of the stocks. Region-specific
fisheries regulations also will affect the validity of the linear
assumption.
EPA assumes that NOAA Fisheries landings data are accurate
and complete. However, in some cases prices and/or quantities may be
reported incorrectly.
EPA currently estimates that the increase in producer
surplus as a result of the rule will be between 0% and 40% of the
estimated change in gross revenues. The research used to develop this
range is not region-specific; thus the true value may be higher for
some regions and species.
5. Non-Use Benefits
As discussed by Freeman (1993), ``Non-use values, like use values,
have their basis in the theory of individual preferences and the
measurement of welfare changes. According to theory, use values and
non-use values are additive,'' and ``* * * there is a real possibility
that ignoring non-use values could result in serious misallocation of
resources.'' This statement by Freeman aptly conveys the importance of
non-use benefits outlined in EPA's own economic valuation guidance
documents. A comprehensive estimate of total resource value should
include both use and non-use values, so that the resulting appropriate
total benefit value estimates may be compared to total social cost.
It is clear that reducing impingement and entrainment losses of
fish and shellfish may result in both use and non-use benefits. Of the
organisms which are anticipated to be protected by the section 316(b)
Phase II rule, it is projected that approximately 1.8 percent will
eventually be harvested by commercial and recreational fishers and
[[Page 41661]]
therefore can be valued with direct use valuation techniques. The
Agency's direct use valuation does not account for the benefits from
the remaining 98.2% of the age 1 equivalent aquatic organisms estimated
to be protected nationally under today's rule. A portion of the total
benefits of these unharvested commercial, recreational, and forage
species, can be derived indirectly from the estimated use values of the
harvested animals. A percentage of these unlanded organisms become prey
or serve as breeding stock in the production of those commercial and
recreational species that will eventually be caught, therefore their
indirect use value as biological input into the production process is
represented in the estimated direct use values of the harvested fish.
EPA was unable to value the non-use benefits associated with this
rule. In order to provide an estimate of the quantified (but not
monetized) effects of the rule, Exhibit XII-5 summarizes information
about total impingement and entrainment losses, and Exhibit XII-6
presents estimates of reductions in impingement and entrainment losses
under the final rule.
Exhibit XII-5.--Distribution of Baseline Impingement and Entrainment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current I&E of annual age-one equivalents (millions)
---------------------------------------------------------------------------- I&E of harvested
Harvested species as a
Region\a\ All species Commercial and commercial and percentage of
(total) Forage species recreational recreational total I&E
species species
--------------------------------------------------------------------------------------------------------------------------------------------------------
California............................................... 312.9 170.6 142.3 14.9 4.8
North Atlantic........................................... 65.7 49.7 16.0 0.7 1.0
Mid Atlantic............................................. 1,733.1 1,115.6 617.6 28.4 1.6
South Atlantic........................................... 342.5 208.1 134.5 6.5 1.9
Gulf of Mexico........................................... 191.2 53.5 137.8 8.1 4.2
Great Lakes.............................................. 319.1 300.8 18.3 0.5 0.2
Inland................................................... 369.0 284.8 84.2 0.2 0.1
--------------------
Total for 554 facilities \a\......................... 3,449.4 2,255.8 1,193.6 62.1 1.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Regional totals are unweighted. National total estimates are weighted and include Hawaii.
Exhibit XII-6.--Distribution of Reductions in Impingement and Entrainment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reductions in I&E of annual age-one equivalents (millions) Reduction in I&E
---------------------------------------------------------------------------- of harvested
Harvested species as a
Region \a\ All species Commercial and commercial and percentage of
(total) Forage species recreational recreational total reduction
species species in I&E
--------------------------------------------------------------------------------------------------------------------------------------------------------
California............................................... 66.4 36.0 30.4 3.2 4.8
North Atlantic........................................... 19.3 14.6 4.7 0.2 1.0
Mid Atlantic............................................. 846.4 537.5 308.8 13.9 1.6
South Atlantic........................................... 76.7 38.5 38.2 1.6 2.0
Gulf of Mexico........................................... 89.5 20.5 69.0 3.6 4.0
Great Lakes.............................................. 159.5 151.7 7.8 0.2 0.1
Inland................................................... 116.8 101.2 15.7 0.1 0.1
--------------------
Total for 554 facilities............................. 1,420.2 928.9 491.3 23.7 1.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Regional numbers are unweighted. National totals are sample-weighted and include Hawaii.
Lack of direct use values for the unharvested commercial,
recreational and forage species means that EPA did not directly value a
substantial percentage of the total age-one equivalent impingement and
entrainment losses. Given that aquatic organisms without any direct
uses account for the majority of cooling water intake structure losses
and indirect valuation of these species may only represent a fraction
of their total value, comprehensive monetization of the benefits of
reduced impingement and entrainment losses is incomplete without
developing a reliable estimate of non-use benefits. Although
individuals do not use these resources directly, they may value changes
in their status or quality. Both users (commercial and recreational
fishermen) as well as non-users (those who do not use the resource) may
have non-use values for these species. Non-use benefit valuation is
challenging, but the existence and potential importance of non-use
benefits is supported by EPA's Guidelines for Preparing Economic
Analysis (EPA 240-R-00-003) and OMB Circular A-4, Regulatory Analysis,
also available as Appendix D of Informing Regulatory Decisions: 2003
Report to Congress on The Costs and Benefits of Federal Regulations and
Unfunded Mandates on State, Local and Tribal Entities, OMB, 2003, pp
118-165.
Market valuation approaches are used to estimate use benefits. The
theory and practice of nonmarket valuation is well developed, and
typically plays a pivotal role in benefit-cost analysis conducted by
public and private agencies. Non-use values are often considered more
difficult to estimate. The preferred technique for estimating non-use
values is to conduct original stated preference surveys, but benefit
transfer of values from existing stated preference studies can be
considered when original studies are not feasible.
Stated preference methods rely on surveys, which ask people to
state their willingness-to-pay for particular ecological improvements,
such as increased protection of aquatic species or habitats with
particular attributes. The Agency was not able to perform an original
stated preference study for this regulation, so benefit transfer was
explored as an alternative means to estimate non-use benefits. Benefits
transfer involves adapting the findings from research conducted for
another
[[Page 41662]]
purpose to address the policy questions in hand.
One of the specific benefit transfer techniques explored by EPA for
estimation of non-use benefits in Phase II of the 316(b) rulemaking was
meta regression analysis. Meta regressions are designed to
statistically define the relationship between values and a set of
resource, demographic and other characteristics compiled from original
primary study sources. The resulting mathematical relationship allows
the researcher to forecast estimates of non-use values specific to the
resource changes projected to occur as a consequence of the final rule.
EPA's Guidelines for Preparing Economic Analysis (EPA 240-R-00-003)
discusses the use of meta-analysis and notes that this approach is the
most rigorous benefit transfer exercise.
The meta analysis conducted by EPA for this rule identifies a set
of elements that may influence willingness-to-pay; the analysis found
both statistically significant and intuitive patterns that appeared to
influence non-use values for water quality improvements in aquatic
habitats. However, the Agency encountered various limitations when
trying to apply the meta analysis model to this final rule, and these
limitations could not be thoroughly analyzed within the publication
time-frame established for this rule. EPA therefore does not present
estimates of non-use values for this final rule.
Due to the various difficulties associated with estimating indirect
and non-use benefits for this rule, final benefits do not reflect
reduced impacts to a variety of potential ecological and public
services that are a function, in part, of healthy fish stocks and other
organisms affected by cooling water intake structures. Examples of
other potential ecosystem services that may potentially be adversely
affected by impingement and entrainment losses but which could not be
monetized include:
Decreased numbers of ecological keystone, rare, or
sensitive species;
Increased numbers of exotic or disruptive species that
compete well in the absence of species lost to I&E;
Disruption of ecological niches and ecological strategies
used by aquatic species;
Disruption of organic carbon, nutrient, and energy
transfer through the food web;
Decreased local biodiversity;
Disruption of predator-prey relationships;
Disruption of age class structures of species; and
Disruption of public satisfaction with a healthy
ecosystem.
The existence and potential magnitude of each of these benefits
categories is highly dependent on site-specific factors which could not
be assessed.
Today's rule may help preserve threatened and endangered species,
but primary research, using stated preference methods, and data
collection regarding threatened and endangered species impacts, could
not be conducted for the final rule at the national level. As a result,
EPA explored other methods for valuing threatened and endangered
species. Details about possible non-use benefits valuation approaches
are presented in the 316(b) Regional Analysis document (DCN 6-0003).
6. National Monetized Benefits
Quantifying and monetizing reduction in impingement and entrainment
losses due to today's final rule is extremely challenging, and the
preceding sections discuss specific limitations and uncertainties
associated with estimation of commercial and recreational benefits
categories (presented in Exhibit XII-7), and non-use benefits. National
benefit estimates are subject to uncertainties inherent in valuation
approaches used for assessing the three benefits categories. The
combined effect of these uncertainties is of unknown magnitude or
direction (i.e., the estimates may over or under state the anticipated
national-level benefits); however, EPA has no data to indicate that the
results for each benefit category are atypical or unreasonable.
Exhibit XII-7 presents EPA's estimates of the total monetized
benefits from impingement and entrainment reduction of the final
regulation. Although EPA believes non-use benefits exist, the Agency
was not able to monetize them. The estimated impingement and
entrainment reduction monetized benefits post regulation are $83
million (2002$) per year, discounted at three percent, and $73 million,
discounted at seven percent.
Exhibit XII-7.--Summary of Monetized Social Benefits
[Millions; 2002$]
----------------------------------------------------------------------------------------------------------------
Total value of
monetizable
Region a Commercial Recreational impingement and
fishing benefits fishing benefits entrainment
reductions b
----------------------------------------------------------------------------------------------------------------
Evaluated at a 3 percent discount rate
----------------------------------------------------------------------------------------------------------------
California............................................. $0.5 $2.5 $3.0
North Atlantic......................................... 0.1 1.4 1.5
Mid-Atlantic........................................... 1.7 43.4 45.1
South Atlantic......................................... 0.2 6.9 7.1
Gulf of Mexico......................................... 0.7 6.2 6.9
Great Lakes............................................ 0.2 14.0 14.2
Inland................................................. ................. 3.0 3.0
--------------------
Total for 554 facilities........................... 3.5 79.3 82.5
--------------------------------------------------------
Evaluated at a 7 percent discount rate
----------------------------------------------------------------------------------------------------------------
California............................................. 0.4 1.9 2.3
North Atlantic......................................... 0.0 1.2 1.2
Mid-Atlantic........................................... 1.5 38.5 40.0
South Atlantic......................................... 0.2 6.2 6.4
Gulf of Mexico......................................... 0.6 5.5 6.1
Great Lakes............................................ 0.2 12.2 12.4
[[Page 41663]]
Inland................................................. ................. 2.6 2.6
--------------------
Total for 554 facilities........................... 3.0 70.0 73.0
----------------------------------------------------------------------------------------------------------------
a Regional benefit estimates are unweighted. National benefits are sample-weighted and include Hawaii.
b The monetized benefits of the final rule may be significantly under-estimated due to the inability to
monetize the non-use values.
E. Other Considerations
This section presents two additional analyses that consider the
benefits and costs of the final rule: (1) An analysis of the costs per
age-one equivalent fish saved (equivalent to a cost-effectiveness
analysis) and (2) a break-even analysis of the minimum non-use benefits
required for total annual benefits to equal total annualized costs, on
a per household basis. Each measure is presented by study region.
1. Cost Per Age-One Equivalent Fish Saved--Cost-Effectiveness Analysis
EPA also analyzed the cost per organism saved as a result of
compliance with the final rule. This analysis estimates the cost-
effectiveness of the rule, by study region. Organisms saved are
measured as ``age-one equivalents.'' The costs used for the regional
comparisons are the annualized pre-tax compliance costs incurred by
facilities subject to the final rule, and the cost used for the
national comparison is the total social cost of the final rule
(including facility compliance costs and administrative costs).
Exhibit XII-8 shows that the estimated cost per age-one equivalent
ranges from $0.07 in the Mid Atlantic region to $1.46 in the Inland
region. At the national level, the estimated average cost is $0.27 per
age-one equivalent saved.
Exhibit XII-8.--Cost per Age-One Equivalent Saved
----------------------------------------------------------------------------------------------------------------
Annual social Age-one
Study region a cost b (millions; equivalents Cost/age-one
2002$) (millions) equivalent saved
----------------------------------------------------------------------------------------------------------------
California............................................. $31.7 66.4 $0.48
North Atlantic......................................... 13.3 19.3 0.69
Mid Atlantic........................................... 62.6 846.4 0.07
South Atlantic......................................... 9.0 76.7 0.12
Gulf of Mexico......................................... 22.8 89.5 0.25
Great Lakes............................................ 58.7 159.5 0.37
Inland................................................. 170.4 116.8 1.46
--------------------
Total for 554 facilities........................... 389.4 1,420 0.27
----------------------------------------------------------------------------------------------------------------
a Regional benefit and cost estimates are unweighted; total national estimates are sample-weighted and include
Hawaii.
b The regional costs include only annual compliance costs incurred by facilities. The national cost includes the
total social cost of the final rule (facility compliance costs and administrative costs).
2. Break-Even Analysis
Due to the uncertainties of providing estimates of the magnitude of
non-use values associated with the final rule, this section provides an
alternative approach of evaluating the potential relationship between
benefits and costs. The approach used here applies a ``break-even''
analysis to identify what the unmonetized non-use values would have to
be in order for the final rule to have benefits that are equal to
costs.
The break-even approach uses EPA's estimated or monetized,
commercial and recreational use benefits for the rule and subtracts
them from the estimated annual compliance costs incurred by facilities
subject to the final rule. The resulting ``net cost'' enables one to
work backwards to estimate what the unmonetized non-use values would
need to be (in terms of willingness-to-pay per household per year) in
order for total annual benefits to equal annualized costs. Exhibit XII-
9 provides this assessment for the seven study regions. The exhibit
shows benefits values using a 3 percent social discount rate. Use of a
7% discount rate would produce somewhat higher breakeven numbers.
Section XII.D.5 presents undiscounted benefits and benefits discounted
using a 7 percent discount rate.
Exhibit XII-9.--Implicit Non-Use Value--Break-Even Analysis
[Million; 2002$]
----------------------------------------------------------------------------------------------------------------
Annual non-use Annual break-
Annual social benefits Number of even non-use
Study region a Use benefits b cost c necessary to households WTP per
break even d,g (millions) e household f
----------------------------------------------------------------------------------------------------------------
California...................... $3.0 $31.7 $28.7 8.1 $3.55
North Atlantic.................. 1.4 13.3 11.9 3.9 3.02
[[Page 41664]]
Mid Atlantic.................... 45.0 62.6 17.5 9.6 1.82
South Atlantic.................. 7.1 9.0 1.9 3.8 0.50
Gulf of Mexico.................. 6.9 22.8 15.9 5.4 2.92
Great Lakes..................... 14.1 58.7 44.6 8.6 5.17
Inland.......................... 3.0 170.4 167.4 20.9 8.01
-----------------
Total for 554 facilities.... 82.9 389.4 306.5 60.4 5.07
----------------------------------------------------------------------------------------------------------------
a Regional benefit and cost estimates are unweighted; total national estimates are sample-weighted and include
Hawaii.
b Benefits are discounted using a 3 percent discount rate.
c The regional costs include only annual compliance costs incurred by facilities. The national cost includes the
total social cost of the final rule (facility compliance costs and administrative costs).
d Annualized compliance costs minus annual use benefits.
e Millions of households, including anglers fishing in the region and households in abutting counties. From U.S.
Census 2000 (BLS): http://factfinder.census.gov.
f Dollars per household per year that, when added to use benefits, would yield a total annual benefit (use plus
non-use) equal to the annualized costs.
g Non-use benefits may also include unmonetized use benefits, i.e., improvements in bird watching.
As shown in Exhibit XII-9, for total annual benefits to equal total
annualized costs, non-use values per household would have to be $0.50
in the South Atlantic region and $8.01 in the Inland region. At the
national level, the annual willingness-to-pay per affected household
would have to be $5.07 for total annual benefits to equal total
annualized costs.
While this approach of backing out the ``break-even'' non-use value
per household does not answer the question of what non-use values might
actually be for the final rule, these results do frame the question for
policy-making decisions. The break-even approach poses the question:
``Is the true per household willingness-to-pay for the non-use
amenities (existence and bequest) associated with the final rule likely
to be greater or less than the ``breakeven'' benefit levels displayed
in Exhibit XII-9?'' Unfortunately, the existing body of empirical
research is inadequate to answer this question on behalf of the nation
as a whole, but EPA is providing the analysis to aid policy makers and
the public in forming their own judgment.
XIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a 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:
1. 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;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
4. 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 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 Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2060.02, or DCN 6-0001. Compliance with
the applicable information collection requirements imposed under this
final rule (see Sec. Sec. 122.21(r), 125.95, 125.96, 125.97, 125.98,
125.99) is mandatory. Existing facilities are required to perform
several data-gathering activities as part of the permit renewal
application process. Today's final rule requires several distinct types
of information collection as part of the NPDES renewal application. In
general, the information will be used to identify which of the
requirements in today's final rule apply to the existing facility, how
the existing facility will meet those requirements, and whether the
existing facility's cooling water intake structure reflects the best
technology available for minimizing adverse environmental impact.
Categories of data required by today's final 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 and cooling water system data, consisting
of intake structure design, cooling water system operational data and
relationship of each intake to the cooling water system, 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 final rule; and
Information on supplemental restoration measures proposed
for use with design and construction technologies or alone to minimize
adverse environmental impact.
In addition to the information requirements of the permit renewal
application, NPDES permits normally
[[Page 41665]]
specify monitoring and reporting requirements to be met by the
permitted entity. Existing facilities that fall within the scope of
this final rule would be required to perform biological monitoring for
at least two years, and as required by the Director, to demonstrate
compliance. Additional ambient water quality monitoring may also be
required of facilities depending on the specifications of their
permits. The facility is expected to analyze the results from its
monitoring efforts and provide these results in a bi-annual status
report to the permitting authority. Finally, facilities are required to
maintain records of all submitted documents, supporting materials, and
monitoring results for at least three years. (Note that the Director
may require more frequent reporting and that records be kept for a
longer period to coincide with the life of the NPDES permit.)
All facilities carry out the 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 will also gather data (as required by the
compliance alternative selected) 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. For some facilities, 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) will need to prepare a plan documenting
the restoration measures they implement and how they demonstrate that
the restoration measures are effective. Restoration is a voluntary
alternative. Since facilities would most likely choose restoration only
if other alternatives are more costly or infeasible, EPA has not
assessed facility burden for this activity. However, burden estimates
have been included for the Director's review of restoration activities.
Some facilities may choose to request a site-specific determination
of best technology available 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 submit a site-specific
technology plan characterizing the design and construction
technologies, operational measures and/or restoration measures they
have selected. In addition, facilities that request a site-specific
determination because of costs significantly greater than the benefits
must also perform a valuation of the monetized benefits of reducing
impingement mortality and entrainment and an assessment of non-
monetized benefits. Site-specific determinations are voluntary. Since
facilities would choose site-specific determinations only if other
alternatives are more costly, EPA has not assessed a facility burden
for these activities; however, EPA has incorporated burden into the
activities that the Director will perform in reviewing site-specific
information.
The total average annual burden of the information collection
requirements associated with today's final rule is estimated at
1,700,392 hours. The annual average reporting and record keeping burden
for the collection of information by facilities responding to the
section 316(b) Phase II existing facility final rule is estimated to be
5,428 hours per respondent (i.e.,, an annual average of 1,595,786 hours
of burden divided among an anticipated annual average of 294
facilities). The Director reporting and record keeping burden for the
review, oversight, and administration of the rule is estimated to
average 2,615 hours per respondent (i.e., an annual average of 104,606
hours of burden divided among an anticipated 40 States on average per
year).
Respondent activities are separated into those activities
associated with the NPDES permit application and those activities
associated with monitoring and reporting after the permit is issued.
The reason for this is that the permit cycle is every five years, while
Information Collection Requests (ICRs) must be renewed every three
years. Therefore, the application activities occur only once per
facility during an ICR approval period, and so they are considered one-
time burden for the purpose of this ICR. By contrast, the monitoring
and reporting activities that occur after issuance of the permit occur
on an annual basis. The burden and costs are for the information
collection, reporting, and recordkeeping requirements for the three-
year period beginning with the 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 final 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 means 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.
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. EPA is amending the table in
40 CFR Part 9 of currently approved OMB control numbers for various
regulations to list the information requirements contained in this
final rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., 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. For the purposes of assessing the impacts
of today's rule on
[[Page 41666]]
small entities, small entity is defined as: (1) A small business
according to RFA default definitions for small business (based on 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 any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
rule applies to existing power producing facilities that employ a
cooling water intake structure and are design to withdraw 50 million
gallons per day (MGD) or more from waters of the United States for
cooling purposes. EPA expects this final rule to regulate 25 small
entities that own electric generators. We estimate that 17 of the small
entities are governmental jurisdictions (i.e., 16 municipalities and
one political subdivision), two are private businesses (i.e., one
nonutility and one investor-owned entity), and six are not-for-profit
enterprises (i.e., rural electric cooperative).
Of the 25 small entities, one entity is estimated to incur
annualized post-tax compliance costs of greater than three percent of
revenues; eight are estimated to incur compliance costs of between one
and three percent of revenues; and 16 small entities are estimated to
incur compliance costs of less than one percent of revenues. Eleven
small entities are estimated to incur no costs other than permitting
and monitoring costs.
Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this rule on small entities. EPA has
divided implementation of section 316(b) of the Clean Water Act (CWA)
into three phases where the majority of small entities will be
addressed in Phase III. Under the Phase III rule, EPA will convene a
SBREFA panel that will evaluate impacts to small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 the 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 the 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 the 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 estimates the total annualized (post-tax) costs of compliance
for facilities subject to the final rule to be $249.5 million (2002$),
of which $216.3 million is incurred by the private sector (including
investor-owned utilities, nonutilities, and rural electric
cooperatives) and $23.1 million is incurred by State and local
governments that operate in-scope facilities.\59\ Additionally,
permitting authorities incur $4.1 million to administer the rule,
including labor costs to write permits and to conduct compliance
monitoring and enforcement activities. EPA estimates that the highest
undiscounted post-tax cost incurred by the private sector in any one
year is approximately $419.1 million in 2009. The highest undiscounted
cost incurred by the government sector in any one year is approximately
$43.5 million in 2008. 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 the UMRA, which is summarized as follows.
See Economic and Benefits Analysis, Chapter B5, UMRA Analysis, for
detailed information.
---------------------------------------------------------------------------
\59\ In addition, 14 facilities owned by Tennessee Valley
Authority (TVA), a Federal entity, incur $10.1 million in compliance
costs. The costs incurred by the Federal government are not included
in this section.
---------------------------------------------------------------------------
1. Summary of Written Statement
a. Authorizing Legislation
This final 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 rule 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. See section III of
this preamble for detailed information on the legal authority of this
regulation.
b. Cost-Benefit Analysis
The final rule is expected to have total annualized pre-tax
(social) costs of $389.2 million (2002$), including direct costs
incurred by facilities and implementation costs incurred by State and
Federal governments. The total use benefits of the rule are estimated
to be $82.9 million. EPA was not able to estimate the monetary value of
non-use benefits resulting from the rule, although the Agency believes
non-use benefits may be significant. Thus, the total social costs
exceed the total use benefits of the rule by $306.3 million, and the
benefit-cost ratio, calculated by dividing total use benefits by total
social costs, is 0.2. EPA notes that these analyses are based on a
comparison of a partial measure of benefits with a complete measure of
costs; therefore, the results must be interpreted with caution. For a
more detailed comparison of the costs and benefits of the final rule,
refer to section XII.E of this preamble.
EPA notes that States may be able to use existing sources of
financial assistance to revise and implement the final rule. Section
106 of the Clean Water Act authorizes EPA to award grants to States,
Tribes, intertribal consortia, and interstate agencies for
administering programs for the prevention, reduction, and elimination
of water pollution. These grants may be used for various activities to
develop
[[Page 41667]]
and carry out a water pollution control program, including permitting,
monitoring, and enforcement. Thus, State and Tribal NPDES permit
programs represent one type of State program that can be funded by
section 106 grants.
c. Macro-Economic Effects
EPA estimates that this regulation will not have an effect on the
national economy, including productivity, economic growth, employment
and job creation, and international competitiveness of U.S. goods and
services. Macroeconomic effects on the economy are generally not
considered to be measurable unless the total economic impact of a rule
reaches at least 0.25 percent to 0.5 percent of Gross Domestic Product
(GDP). In 2002, U.S. GDP was $10.4 trillion (2002$), according to the
U.S. Bureau of Labor Statistics. Thus, in order to be considered
measurable, the final rule would have to generate costs of at least $26
billion to $52 billion. Since EPA estimates the final rule will
generate total annual pre-tax costs of only $389.2 million, the Agency
does not believe that the final rule will have an effect on the
national economy.
d. Summary of State, Local, and Tribal Government Input
EPA consulted with State governments and representatives of local
governments in developing the regulation. The outreach activities are
discussed in section III of this preamble.
e. Least Burdensome Option
EPA considered and analyzed several alternative regulatory options
to determine the best technology available for minimizing adverse
environmental impact. These regulatory options are discussed in the
proposed rule at 67 FR 17154-17168, as well as in section VII of this
preamble. These options included a range of technology-based approaches
(e.g., reducing intake flow to a level commensurate with the use of a
closed-cycle cooling system for all facilities; facilities located on
certain waterbody types; facilities located on certain waterbody types
that withdraw a specified percentage of flow; and the use of
impingement and entrainment controls at all facilities). EPA also
included consideration of at least four distinct site-specific options,
including several proposed by industry. As discussed in detail in
section VII., EPA did not select these options because ultimately they
are not the most cost-effective among the options that fulfill the
requirements of section 316(b). EPA selected the final rule because it
meets 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, and it is economically practicable. EPA believes
the final rule reflects the most cost-effective and flexible approach
among the options considered. By providing five compliance alternatives
the final rule offers Phase II existing facilities a high degree of
flexibility in selecting the most cost-effective approach to meeting
section 316(b) requirements. Under the rule, these facilities can
demonstrate that existing flow or CWIS technologies fulfill section
316(b), identify design and control technologies, and/or use
operational measures or restoration measures to fulfill the rule
requirements. The final rule also ensures that any applicable
requirements are economically practicable through the inclusion of the
site-specific compliance alternative at Sec. 125.94(a)(5). EPA further
notes that the compliance alternative specified in Sec. 125.94(a)(4)
and 125.99(a) and (b) was included in part to provide additional
flexibility to Phase II existing facilities as well as to reduce the
burden of determining, implementing, and administering section 316(b)
requirements among all relevant parties. Finally, the Agency believes
that the rule extends additional flexibility to States by providing
that where a State has adopted alternative regulatory requirements that
achieve environmental performance comparable to that required under the
rule, the Administrator will approve such alternative requirements.
2. Impact on Small Governments
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. EPA estimates that 17 of the 62 government-owned
facilities subject to the final rule are owned by small governments
(i.e., governments with a population of less than 50,000). The total
annualized post-tax compliance cost for all small government-owned
facilities incurring costs under the final rule is $5.4 million, or
approximately $316,000 per facility. The highest annualized compliance
costs for a small government-owned facility is $1.3 million. These
costs are lower than the corresponding costs for large governments and
private entities. EPA therefore concludes that these costs do not
significantly or uniquely affect small governments, and that today's
rule is not subject to the requirement of section 203 of UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (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 that have federalism implications'' is 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.''
This final 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 rule would result
in minimal administrative costs on States that have an authorized NPDES
program; would result in minimal costs to States and local government
entities that own facilities subject to the regulation; it maintains
the existing relationship between the national government and the
States in the administration of the NPDES program; and it preserves the
existing distribution of power and responsibilities among various
levels of government. Thus, Executive Order 13132 does not apply to
this rule.
The national cooling water intake structure requirements will be
implemented through permits issued under the NPDES program. Forty-five
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 (and potential
funding to support administration) 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). EPA expects an average
annual burden of 104,606 hours with total average annual cost of $4.8
million
[[Page 41668]]
for States to collectively administer this rule during the first three
years after promulgation.
EPA has identified 62 Phase II existing facilities that are owned
by State or local government entities. The estimated average annual
compliance cost incurred by these facilities is $372,000 per facility.
Today's 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 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 rule will 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 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), and nothing in this rule alters this
established relationship and distribution of power and
responsibilities. Thus, the requirements of section 6 of the Executive
Order do not apply to this rule.
Although Executive Order 13132 does not apply to this rule, EPA did
consult with representatives of State and local governments in
developing this rule. 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. A summary of consultation activities is provided in
section III of this preamble. In the spirit of Executive Order 13132,
and consistent with EPA policy to promote communications between EPA
and State and local governments, EPA also specifically solicited
comments on the proposed rule from State and local officials. A summary
of the concerns raised during that consultation and subsequent public
comment periods and EPA's response to those concerns is provided in
section VIII of this preamble and in the response to comment document
in the record.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 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'' are 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 the distribution of power and responsibilities
between Federal government and Indian tribes.''
This rule does not have Tribal implications. It will not have
substantial direct effects on Tribal governments, on the relationship
between the Federal government and the Indian Tribes, or the
distribution of power and responsibilities between the Federal
government and Indian Tribes as specified in Executive Order 13175. The
national cooling water intake structure requirements will be
implemented through permits issued under the NPDES program. No Tribal
governments are currently authorized pursuant to section 402(b) of the
CWA to implement the NPDES program. In addition, EPA's analyses show
that no facility subject to this rule is owned by Tribal governments
and thus this rule does not affect Tribes in any way in the foreseeable
future. Thus, Executive Order 13175 does not apply to this rule.
Nevertheless, in the spirit of Executive Order 13175 and consistent
with EPA policy to promote communications between EPA and Tribal
governments, EPA solicited comment on the proposed rule from all
stakeholders. EPA did not receive any comments from Tribal governments.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (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 may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or 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.
Executive Order 13405 does not apply to this rule because the rule
does not concern an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children. This
rule establishes requirements for cooling water intake structures to
protect aquatic organisms.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, (``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001)) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. The final
rule does not contain any compliance requirements that will:
Reduce crude oil supply in excess of 10,000 barrels per
day;
Reduce fuel production in excess of 4,000 barrels per day;
Reduce coal production in excess of 5 million tons per
day;
Reduce electricity production in excess of 1 billion
kilowatt hours per day or in excess of 500 megawatts of installed
capacity;
Increase energy prices in excess of 10 percent;
Increase the cost of energy distribution in excess of 10
percent;
Significantly increase dependence on foreign supplies of
energy; or
Have other similar adverse outcomes, particularly
unintended ones.
EPA analyzed the final rule for each of these potential effects and
found that this rule will not lead to any adverse outcomes. Based on
the analyses, EPA concludes that this final rule will have minimal
energy effects at a national and regional level. As a result, EPA did
not prepare a Statement of Energy Effects. For more detail on the
potential energy effects of this rule, see section XI.B.1 of this
preamble or the Economic and Benefits Analysis for the Final Section
316(b) Phase II Existing Facilities Rule.
I. National Technology Transfer and Advancement Act
As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (NTTAA), Pub. L. No.
104-113, section 12(d), (15 U.S.C. 272 note), directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so
[[Page 41669]]
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 rule does not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.
J. Executive Order 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 states
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 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 543 in-scope facilities for which survey
data are available. The results of the analysis, presented in the
Economic Benefits Analysis, 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 (23 of 543, or 4.2%), or non-white populations (105 of 543, or
19.3%), or both (13 of 543, 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 over 1.5 billion fish
(expressed as age 1 equivalents) of recreational and commercial species
are lost annually due to impingement and entrainment at the inscope
Phase II existing facilities. Under the final rule, more than 0.5
billion individuals of these commercially and recreationally sought
fish species (age 1 equivalents) will now survive to join the fishery
each year. These additional 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.
K. Executive Order 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.''
Today's final 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 rule provides the most stringent requirements to minimize adverse
environmental impact for cooling water intake structures located on
these types of waterbodies, 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 rule will reduce impingement mortality 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 structure.
Therefore, EPA expects today's rule would advance the objective of the
Executive Order to protect marine areas.
L. Congressional Review Act
The Congressional Review Act, 5. U.S.C. 801 et seq., as added by
the Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
can not take effect until 60 days after it is published in the Federal
Register. This action is a ``major rule'' as defined by 5 U.S.C.
804(2). This will be effective September 7, 2004.
Dated: February 16, 2004.
Michael O. Leavitt,
Administrator.
Note: The following appendices A and B will not appear in the
Code of Federal Regulations.
Appendix A
[[Page 41670]]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized
capital \3\ Net revenue Performance
EPA assumed Post + net O&M losses from Annualized standards EPA Design
design Capital cost Baseline O&M construction using EPA net Pilot study downtime and on which modeled flow
Facility ID Intake ID intake flow, ($) annual cost O&M annual design construction costs ($) pilot study EPA cost technology adjustment
gpm (Xepa) ($) cost ($) intake flow downtime costs 2,4 estimates code slope (m)
($) \2\ (yepa) ($) ($) are based \1\
($)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Column 1 Column 2................... Column 3 Column 4 Column 5 Column 6 Column 7 Column 8 Column 9 Column 10 Column 11 Column 12 Column 13
---------------
AUT0001....... ........................... 401,881 322,884 699,866 795,393 141,498 ............ ............ ............ I&E 2 0.8639
AUT0002....... ........................... 549,533 5,750,259 68,489 104,063 854,282 6,650,155 290,459 559,082 I&E 12 3.6581
AUT0004....... ........................... 239,107 528,427 30,725 104,458 148,969 ............ ............ ............ I 1 1.1604
AUT0011....... ........................... 453,758 967,675 55,545 193,660 275,890 ............ ............ ............ I 1 1.1604
AUT0012....... ........................... 2,018,917 48,835,329 360,813 989,876 7,582,115 110,716,357 4,933,578 9,315,779 I&E 12 3.6581
AUT0014....... ........................... 572,383 2,732,729 91,057 110,893 408,915 ............ 276,073 22,022 I&E 11 0.7352
AUT0015....... ........................... 1,296,872 510,784 ............ 134,070 206,794 ............ ............ ............ I 5 0.1286
AUT0016....... ........................... 301,127 41,613 ............ 28,195 34,120 ............ ............ ............ I 5 0.1286
AUT0019....... ........................... 848,784 11,094,343 271,045 994,876 2,303,416 ............ ............ ............ I 1 1.1604
AUT0020....... ........................... 207,514 1,517,779 34,859 42,089 223,327 ............ 153,333 12,231 I&E 11 0.7352
AUT0021....... ........................... 267,138 1,187,727 65,395 263,140 366,851 ............ 150,000 11,965 I&E 2 0.8639
AUT0024....... ........................... 639,702 72,402 ............ 47,164 57,472 ............ ............ ............ I 5 0.1286
AUT0027....... ........................... 404,214 2,362,864 147,563 532,881 721,737 ............ ............ ............ I 1 1.1604
AUT0044....... ........................... 457,869 183,653 ............ 57,997 84,145 ............ ............ ............ I 5 0.1286
AUT0049....... ........................... 820,866 6,080,054 196,361 797,241 1,466,543 ............ 204,745 16,332 I&E 2 0.8639
AUT0051....... ........................... 348,052 11,832,011 17,181 50,842 1,718,273 ............ ............ ............ I 4 2.5787
AUT0053....... ........................... 147,762 454,296 27,346 108,078 145,413 ............ ............ ............ I&E 2 0.8639
AUT0057....... ........................... 56,391 271,166 19,811 65,525 84,322 ............ ............ ............ I 1 1.1604
AUT0058....... ........................... 624,376 8,582,766 68,231 225,908 1,379,670 7,092,806 867,072 640,749 I&E 12 3.6581
AUT0064....... ........................... 553,145 3,039,302 195,656 695,636 932,709 ............ ............ ............ I 1 1.1604
AUT0066....... ........................... 65,571 2,006,184 80,531 63,685 268,790 23,985,660 150,000 1,944,883 I&E 4 2.5787
AUT0078....... ........................... 288,792 5,683,876 267,577 1,083,987 1,625,667 ............ 574,212 45,804 I&E 2 0.8639
AUT0084....... ........................... 2,100,000 2,976,122 3,003,550 3,318,577 738,760 ............ 150,331 11,992 I&E 2 0.8639
AUT0085....... ........................... 975,261 23,279,870 341,127 452,608 3,426,011 52,842,026 2,351,844 4,445,953 I&E 4 2.5787
AUT0092....... ........................... 2,786,349 929,777 ............ 269,122 401,501 ............ ............ ............ I 5 0.1286
AUT0095....... ........................... 67,369 55,826 120,772 140,422 27,598 ............ ............ ............ I&E 2 0.8639
AUT0106....... ........................... 325,449 1,104,684 55,757 223,858 325,383 ............ 150,000 11,965 I&E 2 0.8639
AUT0110....... ........................... 551,114 6,445,617 70,141 104,066 951,636 5,297,741 651,167 478,869 I&E 12 3.6581
AUT0120....... ........................... 207,333 2,085,862 55,736 225,656 466,900 ............ 210,724 16,809 I&E 2 0.8639
AUT0123....... ........................... 62,226 106,975 7,021 20,122 28,333 ............ ............ ............ I 1 1.1604
AUT0127....... ........................... 104,672 573,136 34,651 118,506 165,457 ............ ............ ............ I 1 1.1604
AUT0130....... ........................... 929,723 8,127,384 402,025 1,628,672 2,383,804 ............ 821,067 65,496 I&E 2 0.8639
AUT0131....... ........................... 492,987 3,299,931 195,321 694,407 968,921 ............ ............ ............ I 1 1.1604
AUT0134....... ........................... 99,252 3,334,593 8,170 35,218 501,819 238,035 ............ 19,182 I 3 3.4562
AUT0137....... ........................... 401,222 1,916,441 117,385 475,099 630,572 ............ 193,608 15,444 I&E 2 0.8639
AUT0139....... ........................... 369,074 117,095 ............ 49,945 66,617 ............ ............ ............ I 5 0.1286
AUT0142....... ........................... 407,669 9,461,494 66,798 78,036 1,358,342 3,421,735 955,845 351,992 I&E 14 6.9559
AUT0143....... ........................... 289,294 971,645 50,004 200,412 288,748 ............ 150,000 11,965 I&E 2 0.8639
AUT0146....... ........................... 213,207 1,618,126 88,506 313,588 455,467 ............ ............ ............ I 1 1.1604
AUT0148....... ........................... 1,036,476 12,443,192 ............ 288,984 2,060,615 ............ ............ ............ I&E 9 5.973
AUT0149....... ........................... 848,079 109,389 ............ 58,838 74,413 ............ ............ ............ I 5 0.1286
AUT0151....... ........................... 482,911 1,465,485 95,774 340,264 453,142 ............ ............ ............ I 1 1.1604
AUT0161....... ........................... 555,680 1,600,167 101,254 360,434 487,008 ............ ............ ............ I 1 1.1604
AUT0168....... ........................... 329,758 5,156,763 39,196 51,388 746,399 492,266 260,480 60,448 I&E 12 3.6581
AUT0171....... ........................... 1,189,016 14,989,478 120,512 398,517 2,412,170 15,890,363 ............ 1,280,547 I&E 7 2.504
AUT0174....... ........................... 1,341,997 934,469 1,387,449 1,537,156 282,755 ............ 150,000 11,965 I&E 2 0.8639
AUT0175....... ........................... 258,008 2,505,868 134,658 484,461 706,582 ............ ............ ............ I 1 1.1604
AUT0176....... ........................... 1,652,395 6,892,691 425,370 1,533,553 2,089,548 ............ ............ ............ I 1 1.1604
AUT0183....... ........................... 118,504 196,689 7,303 21,121 41,823 ............ ............ ............ I 1 1.1604
AUT0185....... ........................... 810,911 97,503 ............ 56,756 70,638 ............ ............ ............ I 5 0.1286
AUT0187....... ........................... 1,242,691 257,332 ............ 107,659 144,297 ............ ............ ............ I 5 0.1286
AUT0190....... ........................... 511,950 27,779,896 616,589 191,870 3,530,513 ............ ............ ............ I&E 9 5.973
AUT0191....... ........................... 692,335 19,255,865 184,161 66,491 2,623,932 ............ ............ ............ I&E 9 5.973
[[Page 41671]]
AUT0192....... ........................... 359,686 959,625 71,963 253,183 317,849 ............ ............ ............ I 1 1.1604
AUT0193....... ........................... 1,006,084 19,112,665 90,728 323,635 2,954,121 3,278,888 ............ 264,234 I 3 3.4562
AUT0196....... ........................... 230,120 374,975 ............ 10,672 64,060 ............ ............ ............ I 8 0.3315
AUT0197....... ........................... 407,061 4,773,876 248,548 891,410 1,322,554 ............ ............ ............ I 1 1.1604
AUT0202....... ........................... 2,080,399 106,025,028 477,625 769,048 15,387,001 ............ ............ ............ I&E 9 5.973
AUT0203....... ........................... 1,083,174 4,847,332 232,706 851,244 1,308,689 ............ ............ ............ I 1 1.1604
AUT0205....... ........................... 313,218 720,557 37,147 127,449 192,893 ............ ............ ............ I&E 1 1.1604
AUT0208....... ........................... 220,683 3,140,556 27,181 51,205 471,169 3,544,915 ............ 285,672 I&E 4 2.5787
AUT0222....... ........................... 156,464 299,274 ............ 9,554 52,164 ............ ............ ............ I 8 0.3315
AUT0227....... ........................... 82,468 523,999 30,107 102,249 146,748 ............ ............ ............ I 1 1.1604
AUT0228....... ........................... 147,594 837,743 41,023 163,811 242,064 ............ ............ ............ I&E 2 0.8639
AUT0229....... ........................... 483,349 1,784,794 87,496 391,634 558,253 ............ ............ ............ I&E 2 0.8639
AUT0238....... ........................... 376,148 757,400 51,856 180,342 236,323 ............ ............ ............ I 1 1.1604
AUT0242....... ........................... 1,113,045 8,239,161 291,327 1,039,947 1,921,691 ............ ............ ............ I 1 1.1604
AUT0244....... ........................... 49,980 426,844 22,868 76,413 114,318 ............ ............ ............ I 1 1.1604
AUT0245....... ........................... 491,302 1,459,999 50,879 61,192 218,185 ............ 150,000 11,965 I&E 11 0.7352
AUT0254....... ........................... 145,838 353,928 22,339 74,527 102,580 ............ ............ ............ I 1 1.1604
AUT0255....... ........................... 194,919 258,805 ............ 10,232 47,080 ............ ............ ............ I 8 0.3315
AUT0261....... ........................... 201,229 943,433 57,335 230,290 307,278 ............ 150,000 11,965 I&E 2 0.8639
AUT0264....... ........................... 840,000 21,384,690 1,502,211 185,672 1,728,160 43,525,468 2,160,384 3,679,892 I&E 12 3.6581
AUT0266....... ........................... 653,994 139,380 307,951 351,075 62,969 ............ ............ ............ I&E 2 0.8639
AUT0268....... ........................... 712,677 2,998,753 114,173 417,470 730,253 ............ ............ ............ I 1 1.1604
AUT0273....... ........................... 173,689 994,534 52,039 208,703 298,263 ............ 150,000 11,965 I&E 2 0.8639
AUT0277....... ........................... 88,831 1,192,106 45,779 51,021 174,971 186,802 ............ 15,054 I&E 4 2.5787
AUT0278....... ........................... 1,642,492 6,410,550 771,895 257,586 398,409 ............ 647,624 51,660 I&E 11 0.7352
AUT0284....... ........................... 728,495 3,743,165 208,370 742,487 1,067,059 ............ ............ ............ I 1 1.1604
AUT0292....... ........................... 556,596 2,227,636 99,379 350,087 567,874 ............ ............ ............ I 1 1.1604
AUT0295....... ........................... 359,098 3,584,905 53,365 114,232 571,276 5,005,800 ............ 403,399 I&E 4 2.5787
AUT0297....... ........................... 184,293 1,172,223 63,592 255,790 359,096 ............ 150,000 11,965 I&E 2 0.8639
AUT0298....... ........................... 897,819 100,769 ............ 61,625 75,972 ............ ............ ............ I 5 0.1286
AUT0299....... ........................... 864,873 9,012,107 150,709 127,282 1,259,694 15,622,548 227,612 1,277,121 I&E 12 3.6581
AUT0302....... ........................... 71,413 91,562 6,933 19,813 25,916 ............ ............ ............ I 1 1.1604
AUT0305....... ........................... 762,197 42,822,242 146,012 281,593 6,232,505 49,751,104 4,326,108 4,354,352 I&E 14 6.9559
AUT0308....... ........................... 394,361 3,381,768 151,364 77,961 408,085 3,407,223 ............ 274,576 I&E 7 2.504
AUT0309....... ........................... 789,860 81,433 ............ 55,577 67,171 ............ ............ ............ I 5 0.1286
AUT0314....... ........................... 1,039,315 2,438,597 134,759 484,839 697,281 ............ ............ ............ I 1 1.1604
AUT0319....... ........................... 468,117 1,326,662 88,025 355,386 456,248 ............ 150,000 11,965 I&E 2 0.8639
AUT0321....... ........................... 669,493 2,092,630 88,910 107,698 316,732 ............ 150,000 11,965 I&E 11 0.7352
AUT0331....... ........................... 178,562 24,860 ............ 21,328 24,867 ............ ............ ............ I 5 0.1286
AUT0333....... ........................... 336,448 786,807 46,794 162,104 227,333 ............ ............ ............ I 1 1.1604
AUT0337....... ........................... 1,110,944 131,046 ............ 73,566 92,224 ............ ............ ............ I 5 0.1286
AUT0341....... ........................... 405,256 2,429,275 115,249 412,169 642,794 ............ ............ ............ I 1 1.1604
AUT0345....... ........................... 610,223 5,103,322 267,506 952,013 1,411,106 ............ ............ ............ I 1 1.1604
AUT0349....... ........................... 2,429,925 8,146,829 424,696 1,514,477 2,249,706 ............ ............ ............ I 1 1.1604
AUT0351....... ........................... 301,024 6,389,631 42,269 99,196 966,667 700,911 ............ 56,484 I&E 3 3.4562
AUT0358....... ........................... 210,439 2,170,195 117,833 421,759 612,913 ............ ............ ............ I 1 1.1604
AUT0361....... ........................... 433,165 7,652,621 59,105 140,320 1,170,775 893,934 ............ 72,039 I&E 3 3.4562
AUT0362....... ........................... 312,830 1,566,464 51,821 185,883 357,091 ............ ............ ............ I 1 1.1604
AUT0364....... ........................... 505,137 5,447,440 170,196 611,090 1,216,487 ............ ............ ............ I 1 1.1604
AUT0365....... ........................... 140,093 445,526 29,331 116,166 150,268 ............ ............ ............ I&E 2 0.8639
AUT0368....... ........................... 83,406 2,715,938 146,752 529,832 769,768 ............ ............ ............ I 1 1.1604
AUT0370....... ........................... 322,374 1,816,861 79,915 289,868 468,633 ............ ............ ............ I 1 1.1604
AUT0379....... ........................... 351,933 41,890 ............ 31,041 37,006 ............ ............ ............ I 5 0.1286
AUT0381....... ........................... 50,143 960,912 9,964 22,083 148,931 506,182 ............ 40,791 I&E 4 2.5787
AUT0384....... ........................... 146,511 66,229 91,020 104,211 22,620 ............ ............ ............ I&E 2 0.8639
AUT0385....... ........................... 130,966 1,823,217 20,420 25,983 265,149 1,445,463 ............ 116,485 I&E 4 2.5787
AUT0387....... ........................... 576,057 5,283,933 122,322 496,655 1,126,646 ............ 533,808 42,581 I&E 2 0.8639
AUT0398....... ........................... 537,402 6,842,592 63,631 75,697 986,297 6,440,309 ............ 519,001 I&E 4 2.5787
AUT0399....... ........................... 140,486 232,496 ............ 9,212 42,314 ............ ............ ............ I 8 0.3315
AUT0401....... ........................... 613,529 578,957 ............ 72,110 154,541 ............ ............ ............ I 5 0.1286
AUT0404....... ........................... 291,400 4,124,975 44,642 51,995 594,657 3,259,312 ............ 262,656 I&E 4 2.5787
AUT0408....... ........................... 73,728 900,969 13,020 49,057 164,315 803,968 ............ 64,789 I&E 4 2.5787
AUT0416....... ........................... 143,562 41,835 96,659 112,954 22,251 ............ ............ ............ I&E 2 0.8639
AUT0423....... ........................... 564,501 29,714,518 122,524 248,148 4,356,303 ............ ............ ............ I&E 9 5.973
AUT0427....... ........................... 148,668 291,697 ............ 9,392 50,923 ............ ............ ............ I 8 0.3315
AUT0431....... ........................... 143,775 356,208 20,913 69,450 99,253 ............ ............ ............ I 1 1.1604
[[Page 41672]]
AUT0434....... ........................... 400,472 763,363 40,353 138,952 207,284 ............ ............ ............ I 1 1.1604
AUT0435....... ........................... 183,306 483,907 27,166 107,346 149,077 ............ ............ ............ I&E 2 0.8639
AUT0441....... ........................... 108,296 276,983 17,492 57,275 79,220 ............ ............ ............ I 1 1.1604
AUT0446....... ........................... 278,043 3,528,075 28,547 111,202 584,973 1,404,150 ............ 113,155 I&E 4 2.5787
AUT0449....... ........................... 487,640 1,738,410 110,263 393,700 530,948 ............ ............ ............ I 1 1.1604
AUT0472....... ........................... 239,620 218,958 453,683 511,926 89,417 ............ ............ ............ I&E 2 0.8639
AUT0476....... ........................... 233,631 489,074 27,565 93,169 135,237 ............ ............ ............ I 1 1.1604
AUT0483....... ........................... 1,146,722 2,715,801 112,654 136,742 410,757 ............ 274,363 21,886 I&E 11 0.7352
AUT0489....... ........................... 211,629 1,477,232 84,570 299,177 424,931 ............ ............ ............ I 1 1.1604
AUT0490....... ........................... 405,350 3,527,610 73,321 78,027 506,958 3,548,991 ............ 286,000 I&E 4 2.5787
AUT0493....... ........................... 257,137 1,429,134 51,159 206,956 359,274 ............ 150,000 11,965 I&E 2 0.8639
AUT0496....... ........................... 603,432 1,649,804 57,304 206,130 383,721 ............ ............ ............ I 1 1.1604
AUT0499....... ........................... 45,374 171,551 9,346 48,606 63,685 ............ ............ ............ I&E 2 0.8639
AUT0501....... ........................... 346,213 115,781 205,027 230,840 42,297 ............ ............ ............ I&E 2 0.8639
AUT0513....... ........................... 1,296,772 27,395,451 170,929 603,316 4,332,883 36,923,245 ............ 2,975,512 I&E 4 2.5787
AUT0517....... ........................... 98,553 1,040,022 20,976 72,416 199,516 ............ ............ ............ I 1 1.1604
AUT0518....... ........................... 193,413 435,346 28,467 96,388 129,905 ............ ............ ............ I 1 1.1604
AUT0522....... ........................... 237,692 856,098 40,165 162,010 243,734 ............ ............ ............ I&E 2 0.8639
AUT0523....... ........................... 608,373 7,741,521 ............ 189,045 1,291,263 ............ ............ ............ I&E 9 5.973
AUT0529....... ........................... 422,181 3,402,665 144,308 530,442 870,598 ............ ............ ............ I 1 1.1604
AUT0534....... ........................... 70,565 230,241 17,175 56,150 71,756 ............ ............ ............ I 1 1.1604
AUT0535....... ........................... 196,084 3,706,283 25,082 66,100 568,710 604,316 ............ 48,700 I&E 3 3.4562
AUT0539....... ........................... 1,056,137 13,978,398 183,682 342,369 2,148,896 2,343,730 1,412,165 301,520 I&E 12 3.6581
AUT0541....... ........................... 117,759 3,346,437 108,327 37,393 405,523 27,152,758 169,037 2,201,627 I&E 12 3.6581
AUT0547....... ........................... 780,279 9,747,498 118,281 129,393 1,398,937 17,882,815 ............ 1,441,112 I&E 4 2.5787
AUT0551....... ........................... 295,707 823,114 30,125 35,820 122,888 ............ 150,000 11,965 I&E 11 0.7352
AUT0552....... ........................... 1,226,625 133,029 ............ 80,047 98,987 ............ ............ ............ I 5 0.1286
AUT0553....... ........................... 71,128 230,549 10,379 32,023 54,468 ............ ............ ............ I 1 1.1604
AUT0554....... ........................... 429,991 8,840,925 249,963 170,468 1,179,253 1,498,242 ............ 120,738 I&E 3 3.4562
AUT0557....... ........................... 37,500 20,033 ............ 19,881 22,734 ............ ............ ............ I 5 0.1286
AUT0564....... ........................... 1,129,749 14,903,816 170,408 396,749 2,348,309 15,236,406 ............ 1,227,847 I&E 7 2.504
AUT0567....... ........................... 441,177 5,817,871 67,488 77,963 838,809 4,139,441 ............ 333,583 I&E 4 2.5787
AUT0568....... ........................... 584,525 2,308,321 342,703 382,141 368,091 ............ 150,000 11,965 I&E 2 0.8639
AUT0570....... ........................... 951,201 4,021,857 164,817 591,048 998,853 ............ ............ ............ I 1 1.1604
AUT0577....... ........................... 741,931 10,647,710 113,337 129,884 1,532,542 ............ ............ ............ I&E 7 2.504
AUT0583....... ........................... 222,087 2,210,305 36,279 51,245 329,663 9,610,528 ............ 774,478 I&E 4 2.5787
AUT0585....... ........................... 128,015 1,561,382 49,933 54,853 227,225 1,102,473 ............ 88,844 I&E 4 2.5787
AUT0588....... ........................... 396,576 1,788,685 191,759 66,639 129,548 ............ 180,701 14,414 I&E 11 0.7352
AUT0590....... ........................... 147,803 315,803 22,592 75,430 97,801 ............ ............ ............ I 1 1.1604
AUT0599....... ........................... 198,681 3,040,887 21,121 104,455 516,288 ............ 307,205 24,505 I 4 2.5787
AUT0600....... ........................... 711,801 1,717,012 80,592 284,636 448,508 ............ ............ ............ I 1 1.1604
AUT0601....... ........................... 1,151,214 541,482 677,194 742,753 142,654 ............ ............ ............ I&E 2 0.8639
AUT0603....... ........................... 1,228,633 684,562 720,077 802,140 179,529 ............ 150,000 11,965 I&E 2 0.8639
AUT0607....... ........................... 635,364 9,044,216 111,819 226,342 1,402,216 3,693,163 456,845 334,061 I&E 12 3.6581
AUT0611....... ........................... 547,114 3,195,898 88,288 320,973 687,709 ............ ............ ............ I 1 1.1604
AUT0612....... ........................... 186,464 6,614,075 ............ 85,670 1,027,365 ............ ............ ............ I&E 13 7.0567
AUT0613....... ........................... 493,923 4,341,494 155,354 572,021 1,034,798 ............ ............ ............ I 1 1.1604
AUT0617....... ........................... 2,292,812 37,040,390 1,403,836 741,877 4,611,760 2,161,531 1,247,332 273,688 I&E 12 3.6581
AUT0619....... ........................... 159,600 62,547 98,454 112,506 22,957 ............ ............ ............ I&E 2 0.8639
AUT0620....... ........................... 551,528 2,198,869 264,319 90,714 139,464 ............ 222,140 17,720 I&E 11 0.7352
AUT0621....... ........................... 391,137 2,018,600 70,658 245,595 462,340 ............ ............ ............ I 1 1.1604
AUT0623....... ........................... 73,622 267,379 13,006 49,653 74,715 ............ ............ ............ I 2 0.8639
AUT0625....... ........................... 562,255 2,841,330 104,168 380,113 680,487 ............ ............ ............ I 1 1.1604
[[Page 41673]]
AUT0630....... ........................... 569,211 16,086,712 94,881 227,787 2,423,292 974,792 ............ 78,555 I&E 3 3.4562
AUT0631....... ........................... 480,721 11,721,529 77,934 190,232 1,781,179 193,002 ............ 15,553 I&E 3 3.4562
AUT0635....... ........................... 72,550 1,057,088 50,149 201,000 301,357 ............ 150,000 11,965 I&E 2 0.8639
AUT0638....... ........................... 201,395 2,336,881 50,154 202,851 485,416 ............ 236,083 18,832 I&E 2 0.8639
AUT0639....... ........................... 479,860 2,960,066 143,531 527,524 805,439 ............ ............ ............ I 1 1.1604
DMU3244....... 1.......................... 22,222 138,465 ............ 27,927 47,641 ............ ............ ............ I 1 1.1604
DMU3244....... 2.......................... 56,250 163,334 ............ 33,357 56,612 ............ ............ ............ I 1 1.1604
DMU3310....... ........................... 41,319 25,594 8,793 27,169 22,020 ............ ............ ............ I 1 1.1604
DNU2003....... ........................... 156,944 68,455 ............ 30,711 40,458 ............ ............ ............ I 5 0.1286
DNU2010....... ........................... 67,000 1,010,938 11,787 23,430 155,578 543,834 ............ 43,826 I 4 2.5787
DNU2011....... ........................... 181,250 2,707,585 21,222 102,473 466,750 5,223,420 273,533 442,756 I&E 12 3.6581
DNU2013....... ........................... 65,000 588,369 ............ 24,812 108,583 ............ 150,000 11,965 I&E 11 0.7352
DNU2014....... ........................... 42,798 531,997 64,365 22,327 33,707 ............ 150,000 11,965 I&E 11 0.7352
DNU2017....... ........................... 38,194 984,494 ............ 13,803 153,973 ............ ............ ............ I&E 13 7.0567
DNU2018....... ........................... 44,260 446,336 11,513 13,633 65,668 ............ ............ ............ I&E 11 0.7352
DNU2021....... ........................... 55,750 292,158 18,165 59,671 83,103 ............ ............ ............ I 1 1.1604
DNU2025....... ........................... 120,689 7,720,257 ............ 825,174 1,924,365 ............ 779,937 62,215 I&E 2 0.8639
DNU2032....... Units 1 & 2................ 156,250 ............ ............ ............ ............ ............ ............ ............ I 5 0.1286
DNU2032....... Unit 3..................... 124,306 ............ ............ ............ ............ ............ ............ ............ I 5 0.1286
DNU2032....... Unit 4..................... 136,806 143,049 ............ 54,324 74,691 ............ ............ ............ I 5 0.1286
DNU2038....... ........................... 41,667 465,858 50,489 58,892 74,730 ............ ............ ............ I&E 2 0.8639
DUT0062....... 1.......................... 72,917 1,069,902 8,527 48,944 192,747 5,279,493 ............ 425,455 I&E 4 2.5787
DUT0062....... 2.......................... 156,250 1,922,088 14,312 56,483 315,834 5,279,493 ............ 425,455 I&E 4 2.5787
DUT0576....... 5&6........................ 50,000 1,434,192 51,770 185,694 338,121 ............ ............ ............ I 1 1.1604
DUT0576....... 7.......................... 43,056 866,245 29,000 101,863 196,197 ............ ............ ............ I 1 1.1604
DUT0576....... CT......................... 2,083 202,358 ............ 25,785 54,596 ............ ............ ............ I 1 1.1604
DUT1002....... Screenhouse 1.............. 685,833 166,652 322,571 367,337 68,493 ............ ............ ............ I&E 2 0.8639
DUT1002....... Screenhouse 2.............. 685,833 166,652 322,571 367,337 68,493 ............ ............ ............ I&E 2 0.8639
DUT1003....... ........................... 38,500 703,237 15,912 20,989 105,202 236,360 ............ 19,047 I 4 2.5787
DUT1006....... Unit 1/2................... 173,611 1,286,341 54,154 153,027 282,018 ............ ............ ............ I 1 1.1604
DUT1006....... Unit 3/4................... 20,833 281,263 12,914 39,309 66,440 ............ ............ ............ I 1 1.1604
DUT1007....... ........................... 242,778 680,059 32,861 39,165 103,129 ............ 150,000 11,965 I&E 11 0.7352
DUT1008....... ........................... 60,000 1,016,367 26,935 107,846 225,619 ............ 150,000 11,965 I&E 2 0.8639
DUT1011....... ........................... 283,611 1,350,484 76,112 267,481 383,648 ............ ............ ............ I 1 1.1604
DUT1012....... ........................... 173,611 522,205 29,576 100,351 145,125 ............ ............ ............ I 1 1.1604
DUT1014....... ........................... 87,000 920,321 40,859 163,140 253,315 ............ 150,000 11,965 I&E 2 0.8639
DUT1022....... ........................... 2,200,000 8,268,801 291,801 1,051,593 1,937,083 ............ ............ ............ I 1 1.1604
DUT1023....... CWS 535........... 478,444 28,961,166 360,609 274,535 4,037,344 ............ ............ ............ I&E 3 3.4562
DUT1023....... DWS 536........... 520,000 39,708,776 97,288 361,137 5,917,486 4,830,432 ............ 389,267 I&E 3 3.4562
DUT1029....... CRS........................ 638,000 14,391,478 63,709 254,538 2,239,852 ............ ............ ............ I&E 3 3.4562
DUT1029....... CR Nuc..................... 680,000 6,740,847 162,470 659,152 1,456,426 ............ ............ ............ I&E 2 0.8639
DUT1029....... CRN........................ 68,000 649,893 13,914 16,340 94,956 ............ ............ ............ I&E 11 0.7352
DUT1029....... HCT........................ 735,000 4,654,560 159,675 194,358 697,388 21,796,254 667,692 1,809,743 I&E 11 0.7352
DUT1031....... 1.......................... 59,000 808,777 17,797 22,826 120,181 ............ ............ ............ I&E 4 2.5787
DUT1031....... 2.......................... 140,000 1,524,044 24,132 26,017 218,874 5,399,114 ............ 435,095 I&E 4 2.5787
DUT1033....... ........................... 240,000 1,076,251 43,293 55,502 165,443 ............ 150,000 11,965 I&E 11 0.7352
DUT1034....... ........................... 1,231,944 4,990,608 202,923 820,337 1,327,964 ............ 504,175 40,218 I&E 2 0.8639
DUT1036....... ........................... 444,000 753,297 41,568 141,630 207,314 ............ ............ ............ I 1 1.1604
DUT1038....... ........................... 65,972 213,848 12,804 38,918 56,561 ............ ............ ............ I 1 1.1604
DUT1041....... ........................... 188,958 433,167 27,973 94,625 128,325 ............ ............ ............ I 1 1.1604
DUT1043....... ........................... 280,556 36,345 ............ 27,042 32,217 ............ ............ ............ I 5 0.1286
DUT1044....... ........................... 756,944 76,726 ............ 53,732 64,656 ............ ............ ............ I 5 0.1286
DUT1047....... ........................... 614,306 16,998,704 151,032 103,667 2,372,868 4,783,541 ............ 385,488 I&E 7 2.504
DUT1048....... HI-1....................... 256,944 1,766,372 113,534 405,813 543,770 ............ ............ ............ I 1 1.1604
DUT1048....... HI-2....................... 170,139 473,836 33,127 113,050 147,387 ............ ............ ............ I 1 1.1604
DUT1050....... ........................... 2,104,167 407,068 ............ 171,852 229,809 ............ ............ ............ I 5 0.1286
DUT1051....... ........................... 374,000 1,027,013 55,468 193,382 284,137 ............ ............ ............ I 1 1.1604
DUT1057....... ........................... 340,000 2,844,898 35,159 51,102 420,993 7,997,712 ............ 644,507 I&E 4 2.5787
DUT1062....... ........................... 670,139 67,658 ............ 48,869 58,502 ............ ............ ............ I 5 0.1286
DUT1066....... ........................... 1,712,000 32,777,974 260,695 678,771 5,084,922 845,987 ............ 68,175 I&E 3 3.4562
DUT1067....... 1.......................... 63,611 ............ ............ ............ ............ ............ ............ ............ I 5 0.1286
DUT1067....... 2.......................... 31,667 ............ ............ ............ ............ ............ ............ ............ I 5 0.1286
DUT1067....... 3.......................... 69,653 23,159 ............ 20,564 23,862 ............ ............ ............ I 5 0.1286
DUT1068....... ........................... 91,528 360,536 56,351 20,060 15,042 ............ ............ ............ I&E 11 0.7352
DUT1072....... ........................... 366,597 691,381 40,319 137,184 195,303 ............ ............ ............ I 1 1.1604
DUT1084....... ........................... 264,583 835,764 54,494 189,863 254,363 ............ ............ ............ I 1 1.1604
[[Page 41674]]
DUT1085....... ........................... 297,000 2,410,696 159,608 619,834 803,455 ............ 243,540 19,427 I&E 2 0.8639
DUT1086....... Unit 1..................... 57,292 667,197 29,048 122,691 188,637 ............ ............ ............ I&E 2 0.8639
DUT1086....... Unit 2..................... 57,292 667,197 29,048 122,691 188,637 ............ 150,000 11,965 I&E 2 0.8639
DUT1088....... 4................. 49,280 865,324 11,129 22,007 134,081 ............ ............ ............ I&E 7 2.504
DUT1088....... 5................. 99,458 1,438,399 12,058 25,232 217,970 1,601,167 ............ 129,032 I&E 7 2.504
DUT1093....... ........................... 307,760 9,456,466 ............ 33,762 1,380,150 ............ ............ ............ I&E 9 5.973
DUT1097....... ........................... 106,007 2,349,646 ............ 242,606 577,143 ............ 237,372 18,935 I&E 6 5.0065
DUT1098....... ........................... 71,528 507,025 29,461 99,942 142,669 ............ ............ ............ I 1 1.1604
DUT1100....... Units 1 & 2................ 188,000 ............ ............ ............ ............ ............ ............ ............ I 5 0.1286
DUT1100....... Units 3 & 4................ 188,000 136,878 ............ 50,573 70,062 ............ ............ ............ I 5 0.1286
DUT1103....... Unit 1 Screenhouse......... 118,000 ............ ............ ............ ............ ............ ............ ............ I
DUT1103....... Unit 2 Screenhouse......... 250,000 47,060 ............ 31,941 38,642 ............ ............ ............ I 5 0.1286
DUT1103....... Hvdc Lake Intake........... 1,200 34,615 ............ 4,734 9,662 ............ ............ ............ I 8 0.3315
DUT1103....... Hvdc Separator Dike........ 1,200 34,615 ............ 4,734 9,662 ............ ............ ............ I 8 0.3315
DUT1103....... River Intake............... 7,800 75,587 5,734 15,570 20,597 ............ ............ ............ I 1 1.1604
DUT1109....... ........................... 58,333 873,553 32,385 130,170 222,159 ............ 150,000 11,965 I 2 0.8639
DUT1111....... Unit 1&2................... 199,716 764,700 99,547 37,851 47,181 ............ ............ ............ I&E 11 0.7352
DUT1111....... Unit 3..................... 189,842 717,221 93,277 35,552 44,391 ............ 150,000 11,965 I&E 11 0.7352
DUT1112....... ........................... 193,750 501,403 28,510 96,543 139,421 ............ ............ ............ I 1 1.1604
DUT1113....... System 27.................. 1,125,000 6,518,329 281,013 1,001,831 1,648,882 ............ ............ ............ I 1 1.1604
DUT1113....... System 67.................. 44,028 181,599 ............ 8,508 34,364 ............ ............ ............ I 8 0.3315
DUT1116....... ........................... 355,556 2,886,459 69,804 84,921 426,084 ............ 291,604 23,261 I&E 11 0.7352
DUT1118....... ........................... 667,361 140,959 ............ 64,789 84,858 ............ ............ ............ I 5 0.1286
DUT1122....... ........................... 120,000 23,134 ............ 18,047 21,341 ............ ............ ............ I 5 0.1286
DUT1123....... 6.......................... 111,806 4,071,741 15,536 39,240 603,428 ............ ............ ............ I&E 3 3.4562
DUT1123....... 7.......................... 256,250 5,809,773 ............ 431,082 1,258,263 ............ ............ ............ I&E 6 5.0065
DUT1123....... 8.......................... 220,139 5,590,610 27,185 73,721 842,513 1,136,010 ............ 91,547 I&E 3 3.4562
DUT1132....... ........................... 1,896,000 3,995,072 197,552 927,311 1,298,568 ............ 403,601 32,195 I&E 2 0.8639
DUT1133....... ........................... 213,889 1,180,537 44,631 57,260 180,711 ............ 150,000 11,965 I&E 11 0.7352
DUT1138....... ........................... 77,083 264,532 12,475 37,753 62,942 ............ ............ ............ I 1 1.1604
DUT1140....... Mc2-4...................... 131,250 334,100 20,512 66,264 93,320 ............ ............ ............ I 1 1.1604
DUT1140....... Mc5&6...................... 383,958 1,450,787 82,444 290,867 414,982 ............ ............ ............ I 1 1.1604
DUT1145....... ........................... 178,472 2,702,979 38,035 57,101 403,909 1,565,614 273,068 147,950 I&E 12 3.6581
DUT1146....... ........................... 181,944 325,271 276,184 309,256 79,383 ............ ............ ............ I&E 2 0.8639
DUT1152....... ........................... 399,306 10,606,982 355,225 1,321,682 2,476,653 ............ ............ ............ I 1 1.1604
DUT1156....... ........................... 496,000 16,234,946 67,033 77,047 2,321,504 9,287,608 ............ 748,455 I&E 7 2.504
DUT1157....... 6.......................... 110,000 1,262,753 47,827 25,593 157,553 ............ ............ ............ I&E 4 2.5787
DUT1157....... 7.......................... 5,833 305,286 13,438 17,201 47,229 ............ ............ ............ I&E 4 2.5787
DUT1165....... 1.......................... 480,000 9,356,403 220,447 189,951 1,301,645 ............ ............ ............ I&E 3 3.4562
DUT1165....... 2.......................... 489,233 ............ ............ ............ ............ 9,426,676 ............ 759,662 I&E
DUT1169....... ........................... 620,000 14,855,719 47,990 185,073 2,252,203 1,896,934 ............ 152,867 I&E 3 3.4562
DUT1173....... ........................... 37,986 312,285 18,521 72,119 98,061 ............ ............ ............ I&E 2 0.8639
DUT1179....... ........................... 390,278 1,204,485 74,177 261,241 358,556 ............ ............ ............ I 1 1.1604
DUT1185....... ........................... 225,000 3,496,693 21,560 51,324 527,614 1,266,125 ............ 102,032 I&E 7 2.504
DUT1186....... Unit 4..................... 62,000 577,654 26,371 88,907 144,780 ............ ............ ............ I 1 1.1604
DUT1186....... Unit 5..................... 62,000 577,654 26,371 88,907 144,780 ............ ............ ............ I 1 1.1604
DUT1187....... Mt 2&3..................... 147,014 ............ ............ ............ ............ ............ ............ ............ I 5 0.1286
DUT1187....... Mt 6-8..................... 500,000 78,370 ............ 47,573 58,732 ............ ............ ............ I 5 0.1286
DUT1189....... Unit 6 & 8................. 72,222 ............ ............ ............ ............ ............ ............ ............ I 5 0.1286
DUT1189....... Unit 7..................... 80,000 22,427 ............ 19,852 23,045 ............ ............ ............ I 5 0.1286
DUT1198....... ........................... 279,511 5,198,159 27,451 92,443 805,093 268,118 ............ 21,607 I&E 3 3.4562
DUT1202....... Power Plant................ 36,000 1,154,817 ............ 13,668 178,088 ............ ............ ............ I&E 11 0.7352
DUT1202....... Filtration Plant........... 30,000 987,137 ............ 13,284 153,830 ............ ............ ............ I&E 9 5.973
[[Page 41675]]
DUT1206....... 1.......................... 85,972 53,440 56,705 65,852 16,756 ............ ............ ............ I&E 2 0.8639
DUT1206....... 2.......................... 85,000 59,054 56,155 65,236 17,489 ............ ............ ............ I&E 2 0.8639
DUT1206....... 3.......................... 120,972 87,045 76,530 88,027 23,890 ............ ............ ............ I&E 2 0.8639
DUT1209....... Plant A.................... 640,000 2,227,053 89,172 116,036 343,947 ............ ............ ............ I&E 11 0.7352
DUT1209....... Plant B.................... 515,972 10,503,729 51,204 184,394 1,628,685 5,849,051 ............ 471,354 I&E 3 3.4562
DUT1211....... ........................... 1,666,667 32,926,766 3,240,832 1,072,136 2,519,335 ............ 3,326,419 265,345 I&E 11 0.7352
DUT1212....... ........................... 687,500 2,000,922 85,020 302,122 501,987 ............ ............ ............ I 1 1.1604
DUT1214....... ........................... 51,944 754,488 34,900 22,241 94,763 7,829,721 ............ 630,969 I 4 2.5787
DUT1217....... Unit 1..................... ............ ............ ............ ............ ............ ............ ............ ............ I&E .......... ..........
DUT1217....... Unit 6-8................... 104,861 848,612 ............ 16,547 137,371 ............ ............ ............ I&E 13 7.0567
DUT1217....... Unit 4..................... ............ ............ ............ ............ ............ ............ ............ ............ I&E .......... ..........
DUT1219....... ........................... 550,000 2,862,608 108,307 438,079 737,343 ............ 289,194 23,069 I&E 2 0.8639
DUT1223....... 1.......................... 142,000 1,422,632 8,898 55,779 249,432 ............ ............ ............ I&E 12 3.6581
DUT1223....... 2.......................... 224,800 2,121,274 22,284 56,502 336,239 376,088 179,011 44,587 I&E 12 3.6581
DUT1227....... 1 & 2...................... 130,000 373,205 21,493 71,516 103,159 ............ ............ ............ I 1 1.1604
DUT1227....... 3.......................... 185,000 512,326 29,084 98,594 142,454 ............ ............ ............ I 1 1.1604
DUT1229....... ........................... 73,000 30,638 82,612 96,918 18,668 ............ ............ ............ I&E 2 0.8639
DUT1238....... A.......................... 676,000 386,447 531,800 688,788 212,010 ............ ............ ............ I 2 0.8639
DUT1238....... B.......................... 334,000 344,428 525,715 662,610 185,934 ............ ............ ............ I 2 0.8639
DUT1248....... ........................... 452,083 49,114 ............ 36,652 43,645 ............ ............ ............ I 5 0.1286
DUT1249....... ........................... 43,900 10,765 ............ 13,783 15,316 ............ ............ ............ I 5 0.1286
DUT1250....... ........................... 360,000 12,788,752 160,063 151,944 1,812,711 17,224,807 ............ 1,388,085 I&E 7 2.504
DUT1252....... ........................... 112,000 157,353 10,988 32,494 43,910 ............ ............ ............ I 1 1.1604
DUT1258....... Screen House No.1.......... 287,083 6,665,603 171,249 116,490 894,273 ............ ............ ............ I&E 3 3.4562
DUT1258....... Screen House No.2.......... 422,708 9,009,434 248,577 168,448 1,202,611 ............ ............ ............ I&E 3 3.4562
DUT1258....... Screen House No.3.......... 243,056 4,842,849 108,025 73,278 654,766 4,429,893 ............ 356,989 I&E 3 3.4562
DUT1259....... ........................... 71,181 2,706,303 20,742 26,203 390,778 81,723 ............ 6,586 I&E 3 3.4562
DUT1261....... U12........................ 79,000 49,889 119,643 139,137 26,598 ............ ............ ............ I&E 2 0.8639
DUT1261....... U34........................ 139,750 1,735,631 101,580 26,018 171,552 1,650,821 ............ 133,034 I&E 4 2.5787
DUT1265....... ........................... 70,000 495,281 35,987 143,288 177,818 ............ 150,000 11,965 I&E 2 0.8639
DUT1268....... ........................... 2,400,000 20,911,797 1,793,928 623,613 1,807,054 ............ 2,112,610 168,521 I&E 11 0.7352
DUT1269....... ........................... 456,000 3,012,280 107,765 130,761 451,877 ............ 304,315 24,275 I&E 11 0.7352
DUT1270....... ........................... 89,583 18,084 ............ 16,343 18,918 ............ ............ ............ I 5 0.1286
DUT1271....... ........................... 186,000 14,970,016 30,165 49,913 2,151,142 4,337,253 1,512,343 470,162 I&E 7 2.504
DUT1272....... Mo1 & 2.................... 713,889 1,238,695 76,910 270,425 369,877 ............ ............ ............ I 1 1.1604
DUT1272....... Mo3........................ 528,472 849,029 53,826 185,965 253,021 ............ ............ ............ I 1 1.1604
DUT1273....... ........................... 444,444 2,752,775 164,719 582,187 809,401 ............ ............ ............ I 1 1.1604
DUT1274....... ........................... 330,556 1,564,234 62,476 225,250 385,486 ............ ............ ............ I 1 1.1604
DUT1275....... ........................... 1,992,500 6,739,793 ............ 355,766 1,315,361 ............ 680,886 54,314 I 2 0.8639
DUT1276....... ........................... 62,500 412,277 23,754 26,574 61,518 ............ ............ ............ I&E 11 0.7352
DUT1278....... ........................... 559,722 4,962,033 193,479 688,069 1,201,071 ............ ............ ............ I 1 1.1604
---------------
Facilities Receiving No EPA Technology Upgrade Costs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
AUT0010....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0013....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0018....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0022....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0033....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0036....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0041....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0047....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0050....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0054....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0067....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0068....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0071....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0072....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0073....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0077....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0079....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0080....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0083....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0087....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0091....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
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[[Page 41676]]
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AUT0101....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0104....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0111....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0114....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0125....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0126....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0129....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0152....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0156....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0157....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0160....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0163....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0170....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0173....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0178....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0181....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0182....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0199....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0201....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0215....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0216....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0221....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0226....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0230....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0232....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0235....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0240....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0241....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0246....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0248....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0257....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0260....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0270....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0275....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0276....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0285....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0286....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0287....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0296....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0300....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0304....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0307....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0310....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0315....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0343....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0344....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0350....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0355....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0356....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0359....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0363....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0373....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
[[Page 41677]]
AUT0380....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0388....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0390....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0394....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0396....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0397....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0403....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0405....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0406....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0411....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0415....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0419....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0424....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0433....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0440....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0443....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0444....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0453....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0455....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0459....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0462....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0463....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0467....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0473....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0477....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0478....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0481....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0482....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0492....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0500....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0507....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0512....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0515....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0521....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0531....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0536....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0537....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0538....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0540....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0544....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0546....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0555....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0559....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0561....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0571....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0573....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0575....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0580....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0582....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0595....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0602....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0604....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0606....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0608....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0618....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0636....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0637....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
AUT0755....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DNU2002....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DNU2005....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DNU2006....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DNU2015....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DNU2031....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DNU2047....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1010....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1013....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
[[Page 41678]]
DUT1021....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1026....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1027....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1032....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1039....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1046....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1049....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1053....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1056....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1070....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1071....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1078....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1081....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1087....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1092....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1104....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1105....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1106....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1117....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1120....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1129....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1130....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1142....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1143....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1148....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1149....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1153....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1154....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1155....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1161....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1167....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1170....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1172....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1174....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1175....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1176....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1177....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1183....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1188....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1191....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1192....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1194....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1199....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1201....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1213....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1220....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1222....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1224....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1225....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1228....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1233....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1234....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1235....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
[[Page 41679]]
DUT1239....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1243....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1254....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1257....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
DUT1262....... ........................... n/a ............ ............ ............ ............ ............ ............ ............ ........... n/a n/a
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The design flow adjustment slope (m) represents the slope that corresponds to the particular facility using the technology in column 3
\2\ Discount rate = 7%
\3\ Amortization period for capital costs = 10 years
\4\ Amortization period for downtime and pilot study costs = 30 years
Note: Depending on the data provided, some facilities with multiple intakes were costed separately for each intake. In such cases, the facility should calculate the costs considered by EPA for
each intake using the steps below and sum. Note that some costs (e.g., construction downtime) are assigned evenly to each intake for convenience.
[[Page 41680]]
Appendix B: Facility ID and Facility Name for All Facilities Not
Claiming Survey Information CBI
------------------------------------------------------------------------
Facility ID Facility name
------------------------------------------------------------------------
AUT0001............................ Cane Run
AUT0002............................ Chesapeake
AUT0004............................ Hennepin
AUT0010............................ Bowen
AUT0011............................ Shawville
AUT0012............................ Diablo Canyon Nuclear
AUT0013............................ Montville
AUT0014............................ Williams
AUT0015............................ Northport
AUT0016............................ Cholla
AUT0018............................ R M Heskett Station
AUT0019............................ Charles Poletti
AUT0020............................ B L England
AUT0021............................ B C Cobb
AUT0022............................ St Johns River Power
AUT0024............................ Bull Run
AUT0027............................ Lake Hubbard
AUT0033............................ Muscatine
AUT0036............................ Edgewater
AUT0041............................ Edwin I Hatch
AUT0044............................ Hunters Point
AUT0047............................ Michoud
AUT0049............................ Chalk Point
AUT0050............................ Wyandotte
AUT0051............................ Suwannee River
AUT0053............................ Nelson Dewey
AUT0054............................ Flint Creek
AUT0057............................ Thomas Fitzhugh
AUT0058............................ Mercer
AUT0064............................ Decordova
AUT0066............................ Fermi Nuclear
AUT0067............................ Henry D King
AUT0068............................ Scattergood
AUT0071............................ Oswego
AUT0072............................ Sioux
AUT0073............................ Lake Catherine
AUT0078............................ Missouri City
AUT0079............................ Eagle Mountain
AUT0080............................ Lone Star
AUT0083............................ Schiller
AUT0084............................ Salem Nuclear
AUT0085............................ Point Beach Nuclear
AUT0092............................ Linden
AUT0093............................ Perry Nuclear
AUT0095............................ Tyrone
AUT0097............................ Little Gypsy
AUT0101............................ Lakeside
AUT0106............................ Cheswick
AUT0110............................ C P Crane
AUT0111............................ Cape Fear
AUT0114............................ Kewaunee Nuclear
AUT0120............................ Norwalk Harbor
AUT0123............................ Warren
AUT0125............................ Beaver Valley Nuclear
AUT0127............................ Lake Road
AUT0129............................ Susquehanna Nuclear
AUT0130............................ Elmer W Stout
AUT0131............................ Hammond
AUT0134............................ Mount Tom
AUT0137............................ Mitchell
AUT0139............................ Albany
AUT0142............................ Lauderdale
AUT0143............................ Wood River
AUT0146............................ Meredosia
AUT0148............................ Tanners Creek
AUT0149............................ Thomas Hill
AUT0151............................ Decker Creek
AUT0152............................ Duck Creek
AUT0156............................ Waterford 1 & 2
AUT0157............................ Pulliam
AUT0160............................ L V Sutton
AUT0161............................ Valley
AUT0163............................ Belle River
AUT0168............................ E F Barrett
AUT0170............................ O W Sommers
AUT0171............................ New Madrid
AUT0173............................ Fort Calhoun Nuclear
AUT0174............................ Herbert a Wagner
AUT0175............................ R E Burger
AUT0176............................ Martin Lake
AUT0178............................ Mt Storm
AUT0181............................ Prairie Creek
AUT0182............................ Arsenal Hill
AUT0183............................ Schuylkill
AUT0185............................ Gallatin
AUT0187............................ North Anna Nuclear
AUT0190............................ Ginna
AUT0191............................ J H Campbell
AUT0192............................ R W Miller
AUT0193............................ Joliet 29
AUT0196............................ Southside
AUT0197............................ Austin-dt
AUT0201............................ Cope
AUT0202............................ Donald C Cook Nuclear
AUT0203............................ Riverside
AUT0205............................ Joliet 9
AUT0208............................ New Castle
AUT0215............................ Coleto Creek
AUT0216............................ Fort St Vrain
AUT0221............................ Polk
AUT0222............................ Marion
AUT0226............................ Sooner
AUT0227............................ Silver Lake
AUT0228............................ High Bridge
AUT0229............................ Dan E Karn
AUT0230............................ McWilliams
AUT0232............................ V H Braunig
AUT0235............................ Sam Rayburn
AUT0238............................ North Lake
AUT0240............................ Lee
AUT0241............................ J B Sims
AUT0242............................ Quad Cities Nuclear
AUT0244............................ Elk River
AUT0245............................ Avon Lake
AUT0246............................ Canaday
AUT0248............................ Sam Bertron
AUT0254............................ Chamois
AUT0255............................ Cooper
AUT0257............................ Gerald Gentleman
AUT0260............................ Marshall
AUT0261............................ Dale
AUT0264............................ Indian Point 3 Nucler
AUT0266............................ North Omaha
AUT0268............................ Cutler
AUT0270............................ Possum Point
AUT0273............................ Stanton
AUT0275............................ Seabrook Nuclear
AUT0276............................ River Rouge
AUT0277............................ Dubuque
AUT0278............................ Morgantown
AUT0284............................ Handley
AUT0285............................ Conners Creek
AUT0286............................ Welsh
AUT0287............................ Horseshoe Lake
AUT0292............................ Harris Nuclear
AUT0295............................ Jack Mcdonough
AUT0296............................ W H Zimmer
AUT0297............................ Quindaro
AUT0298............................ Harllee Branch
AUT0299............................ Chesterfield
AUT0300............................ Eckert Station
AUT0302............................ U.S. DOE SRS (D-area)
AUT0304............................ Lansing
AUT0305............................ Kahe
AUT0307............................ Rodemacher
AUT0308............................ W S Lee
AUT0309............................ Wilkes
AUT0310............................ A B Paterson
AUT0314............................ Philip Sporn
AUT0315............................ Sabine
AUT0319............................ Cliffside
AUT0321............................ J E Corette
AUT0331............................ Lake Creek
AUT0333............................ Hamilton
AUT0337............................ Johnsonville
AUT0341............................ Montrose
AUT0343............................ John E Amos
AUT0344............................ Weston
AUT0345............................ Summer Nuclear
AUT0349............................ McGuire Nuclear
AUT0350............................ Clinton Nuclear
AUT0351............................ Portland
AUT0355............................ Limerick Nuclear
AUT0356............................ Byron Nuclear
AUT0358............................ H T Pritchard
AUT0359............................ Hookers Point
AUT0361............................ Hawthorn
AUT0362............................ Teche
AUT0363............................ Wansley
AUT0364............................ Dresden Nuclear
AUT0365............................ Arkwright
AUT0368............................ Kaw
AUT0370............................ Deepwater
AUT0373............................ Valmont
AUT0379............................ Lake Pauline
AUT0380............................ Will County
AUT0381............................ Healy
AUT0384............................ Somerset
AUT0385............................ Hutsonville
AUT0387............................ Haynes
AUT0388............................ Lewis Creek
AUT0390............................ Fort Churchill
AUT0394............................ Nebraska City
AUT0396............................ Bremo Power Station
AUT0397............................ George Neal North
AUT0398............................ Iatan
AUT0399............................ Boomer Lake
AUT0401............................ Fort Myers
AUT0403............................ Nine Mile Point Nuclear
AUT0404............................ Mitchell
AUT0405............................ Fisk
AUT0406............................ Merom
AUT0408............................ Cameo
AUT0411............................ Roseton
AUT0415............................ Rochester 7
AUT0416............................ Noblesville
AUT0419............................ Brunswick Nuclear
AUT0423............................ James A Fitzpatrick
AUT0424............................ Davis-besse
AUT0427............................ Blount Street
AUT0431............................ San Angelo
AUT0433............................ Mistersky
AUT0434............................ Paradise
AUT0435............................ Shiras
AUT0440............................ Eaton
AUT0441............................ Piqua
AUT0443............................ Milton L Kapp
AUT0444............................ Gibbons Creek
AUT0446............................ Richard H. Gorsuch
AUT0449............................ Big Brown
AUT0453............................ Four Corners
AUT0455............................ Seminole
AUT0459............................ Vogtle Nuclear
AUT0462............................ Warrick
AUT0463............................ Rex Brown
AUT0467............................ Vero Beach
AUT0472............................ Miami Fort
AUT0473............................ Palisades Nuclear
[[Page 41681]]
AUT0476............................ Trinidad
AUT0477............................ Fair Station
AUT0478............................ Dansby
AUT0481............................ Powerlane
AUT0482............................ Gen J M Gavin
AUT0483............................ Shawnee
AUT0489............................ Nearman Creek
AUT0490............................ Buck
AUT0492............................ Collins
AUT0493............................ E S Joslin
AUT0496............................ Indian River
AUT0499............................ Bay Front
AUT0500............................ Big Cajun 2
AUT0501............................ Jack Watson
AUT0507............................ Crawford
AUT0512............................ J K Spruce
AUT0513............................ Waterford 3 Nuclear
AUT0515............................ Rockport
AUT0517............................ Humboldt Bay
AUT0518............................ James River
AUT0521............................ Menasha
AUT0522............................ Jefferies
AUT0523............................ Walter C Beckjord
AUT0529............................ Gould Street
AUT0531............................ Braidwood Nuclear
AUT0534............................ Crisp
AUT0535............................ Urquhart
AUT0536............................ Rush Island
AUT0537............................ Dallman
AUT0538............................ Genoa
AUT0539............................ Edge Moor
AUT0540............................ J P Madgett
AUT0541............................ Indian Point Nuclear
AUT0544............................ Eddystone
AUT0546............................ Watts Bar Nuclear
AUT0547............................ Muskingum River
AUT0551............................ Allen S King
AUT0552............................ Kingston
AUT0553............................ Hunlock Pwr Station
AUT0554............................ Potomac River
AUT0555............................ Zuni
AUT0557............................ Sayreville
AUT0561............................ J T Deely
AUT0564............................ Kyger Creek
AUT0567............................ F B Culley
AUT0568............................ Northside
AUT0570............................ Peach Bottom Nuclear
AUT0571............................ Baxter Wilson
AUT0573............................ San Onofre Nuclear
AUT0575............................ Trenton Channel
AUT0577............................ Middletown
AUT0580............................ Sixth Street
AUT0582............................ E W Brown
AUT0583............................ Dave Johnston
AUT0585............................ Burlington
AUT0588............................ Monticello
AUT0590............................ C D McIntosh Jr
AUT0599............................ Kearny
AUT0600............................ Kincaid
AUT0601............................ Bridgeport Harbor
AUT0602............................ Mason Steam
AUT0603............................ Astoria
AUT0604............................ C R Huntley
AUT0606............................ Hmp&l Station 2
AUT0607............................ Moss Landing
AUT0608............................ Pilgrim Nuclear
AUT0611............................ New Boston
AUT0612............................ Huntington Beach
AUT0613............................ Morro Bay
AUT0617............................ Ravenswood
AUT0618............................ New Haven Harbor
AUT0619............................ William F Wyman
AUT0620............................ Dunkirk
AUT0621............................ Contra Costa
AUT0623............................ Kendall Square
AUT0625............................ Encina
AUT0630............................ Lovett
AUT0631............................ Salem Harbor
AUT0635............................ Aes Hickling
AUT0637............................ Ormond Beach
AUT0638............................ Mandalay
AUT0639............................ Pittsburg
DMU3244............................ University of Notre Dame Power
Plant
DMU3310............................ University of Iowa--Main Power
Plant
DNU2002............................ Brooklyn Navy Yard Cogeneration
Partners, L.P.
DNU2011............................ Long Beach Generation
DNU2013............................ Maine Energy Recovery Company
DNU2014............................ Baltimore Resco
DNU2015............................ Southern Energy-Canal
DNU2017............................ Westchester Resco Co.
DNU2018............................ Grays Ferry Cogeneration
Partnership
DNU2021............................ Morgantown
DNU2025............................ Sparrows Point Div Bethlehem Steel
Corp
DNU2031............................ Ch Resources--Beaver Falls
DNU2032............................ Duke Energy South Bay
DNU2038............................ Saugus Resco
DNU2047............................ El Segundo Power
DUT0062............................ Leland Olds Station
DUT0576............................ Sam O. Purdom Generating Station
DUT1002............................ Monroe
DUT1003............................ Peru
DUT1006............................ Martins Creek
DUT1007............................ Presque Isle
DUT1008............................ Far Rockaway
DUT1011............................ Stryker Creek
DUT1012............................ Grand Tower
DUT1014............................ Dolphus M Grainger
DUT1021............................ Alma
DUT1022............................ Comanche Peak Nuclear
DUT1023............................ Oyster Creek Nuclear
DUT1026............................ Delaware
DUT1029............................ Crystal River
DUT1031............................ Merrimack
DUT1033............................ J C Weadock
DUT1034............................ South Oak Creek
DUT1036............................ Allen
DUT1038............................ North Texas
DUT1041............................ Elmer Smith
DUT1043............................ Ray Olinger
DUT1044............................ Tradinghouse
DUT1046............................ Labadie
DUT1047............................ Elrama
DUT1048............................ Holly Street
DUT1049............................ Joppa Steam
DUT1050............................ Browns Ferry Nuclear
DUT1051............................ Havana
DUT1056............................ Webster
DUT1057............................ Wateree
DUT1062............................ Fayette Power Prj
DUT1066............................ F J Gannon
DUT1067............................ Paint Creek
DUT1068............................ Harbor
DUT1070............................ Millstone
DUT1072............................ Graham
DUT1084............................ Fort Phantom
DUT1085............................ Petersburg
DUT1086............................ Valley
DUT1088............................ Seward
DUT1093............................ Bailly
DUT1097............................ Rock River
DUT1098............................ Blackhawk
DUT1100............................ Sewaren
DUT1103............................ Milton R Young
DUT1109............................ Riverside
DUT1111............................ E D Edwards
DUT1112............................ Lieberman
DUT1113............................ Sequoyah Nuclear
DUT1116............................ Waiau
DUT1117............................ Columbia
DUT1118............................ Cooper
DUT1122............................ Edgewater
DUT1123............................ Waukegan
DUT1132............................ Cumberland
DUT1133............................ J R Whiting
DUT1138............................ Harbor
DUT1140............................ Morgan Creek
DUT1142............................ Victoria
DUT1143............................ East River
DUT1145............................ Honolulu
DUT1146............................ Devon
DUT1148............................ Council Bluffs
DUT1152............................ Coffeen
DUT1153............................ Mill Creek
DUT1154............................ McClellan
DUT1155............................ P H Robinson
DUT1156............................ John Sevier
DUT1157............................ Sterlington
DUT1161............................ Robert E Ritchie
DUT1165............................ Big Bend
DUT1167............................ Ninemile Point
DUT1169............................ Hudson
DUT1170............................ Carl Bailey
DUT1172............................ Barney M Davis
DUT1173............................ Logansport
DUT1174............................ Arkansas Nuclear One
DUT1175............................ Fox Lake
DUT1179............................ Pirkey
DUT1185............................ Cromby
DUT1186............................ Glenwood
DUT1187............................ Mountain Creek
DUT1189............................ Larsen Memorial
DUT1191............................ Monroe
DUT1192............................ Meramec
DUT1194............................ Gerald Andrus
DUT1198............................ O H Hutchings
DUT1202............................ Manitowoc
DUT1206............................ Indian River
DUT1209............................ Widows Creek
DUT1211............................ Surry Nuclear
DUT1212............................ J M Stuart
DUT1213............................ Riverside
DUT1214............................ Charles R Lowman
DUT1217............................ Deepwater
DUT1219............................ Port Washington
DUT1223............................ Nueces Bay
DUT1225............................ Burlington
DUT1227............................ Sibley
DUT1228............................ Willow Glen
DUT1229............................ Riverton
DUT1235............................ Riverside
DUT1238............................ Cedar Bayou
DUT1248............................ Knox Lee
DUT1249............................ Oak Creek
DUT1250............................ Vermont Yankee Nuclear
DUT1252............................ Muskogee
DUT1258............................ St Clair
DUT1259............................ James De Young
DUT1261............................ Green River
DUT1265............................ River Crest
DUT1268............................ Calvert Cliffs Nuclear
DUT1269............................ Dean H Mitchell
DUT1270............................ Pueblo
DUT1271............................ Michigan City
DUT1272............................ Monticello
DUT1273............................ Sim Gideon
[[Page 41682]]
DUT1274............................ P L Bartow
DUT1275............................ Anclote
DUT1276............................ Animas
DUT1278............................ Newton
------------------------------------------------------------------------
List of Subjects
40 CFR Part 9
Environmental protection, Reporting and recordkeeping requirements.
40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 123
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Indians-lands,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Water pollution control.
40 CFR Part 124
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous waste, Indians-lands, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
40 CFR Part 125
Environmental protection, Cooling water intake structure, Reporting
and recordkeeping requirements, Waste treatment and disposal, Water
pollution control.
0
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
0
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.
0
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 Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB Control
40 CFR citation No.
------------------------------------------------------------------------
* * * * *
---------------------------------------------------------
EPA Administered Permit Programs: The National Pollutant Discharge
Elimination System
------------------------------------------------------------------------
* * * * *
122.21(r)............................................... 2040-0241,
2040-0257
* * * * *
---------------------------------------------------------
Criteria and Standards for the National Pollutant Discharge Elimination
System
------------------------------------------------------------------------
* * * * *
---------------------------------------------------------
125.95.................................................. 2040-0257
125.96.................................................. 2040-0257
125.97.................................................. 2040-0257
125.98.................................................. 2040-0257
125.99.................................................. 2040-0257
* * * * *
------------------------------------------------------------------------
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
0
1. The authority citation for part 122 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
0
2. Section 122.21 is amended by revising paragraph (r)(1) and by adding
a new paragraph (r)(5) to read as follows:
Sec. 122.21 Application for a permit (applicable to State programs,
see Sec. 123.25)
* * * * *
(r) Application requirements 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
submit to the Director for review the information required under
paragraphs (r)(2), (3), and (4) of this section and Sec. 125.86 of
this chapter as part of their application. 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 submit to the
Director for review the information required under paragraphs (r)(2),
(3), and (5) of this section and all applicable provisions of Sec.
125.95 of this chapter as part of their application except for the
Proposal for Information Collection which must be provided in
accordance with Sec. 125.95(b)(1).
* * * * *
(5) Cooling water system data. Phase II existing facilities as
defined in part 125, subpart J of this chapter must provide the
following information for each cooling water intake structure they use:
(i) A narrative description of the operation of the cooling water
system, its relationship to cooling water intake structures, the
proportion of the design intake flow that is used in the system, the
number of days of the year the cooling water system is in operation and
seasonal changes in the operation of the system, if applicable; and
(ii) Design and engineering calculations prepared by a qualified
professional and supporting data to support the description required by
paragraph (r)(5)(i) of this section.
0
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
0
1. The authority citation for part 123 continues to read as follows:
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
0
2. Section 123.25 is amended by revising paragraphs (a)(4) 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), (q), 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
0
1. The authority citation for part 124 continues to read as follows:
[[Page 41683]]
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.
0
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
0
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.
0
2. 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''?
125.92 [Reserved]
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?
125.99 What are approved design and construction technologies?
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
(i.e., 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) Existing facilities that are not subject to requirements under
this or another subpart of this part must meet requirements under
section 316(b) of the CWA determined by the Director on a case-by-case,
best professional judgment (BPJ) basis.
(c) Alternative regulatory requirements. Notwithstanding any other
provision of this subpart, if a State demonstrates to the Administrator
that it has adopted alternative regulatory requirements in its NPDES
program 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 must approve such alternative regulatory
requirements.
(d) 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''?
(a) An existing facility, as defined in Sec. 125.93, is a Phase II
existing facility subject to this subpart if it meets each of the
following criteria:
(1) It is a point source.
(2) It uses or proposes to use cooling water intake structures with
a total design intake flow of 50 million gallons per day (MGD) or more
to withdraw cooling water from waters of the United States;
(3) As its primary activity, the facility both generates and
transmits electric power, or generates electric power but sells it to
another entity for transmission; and
(4) It uses at least 25 percent of water withdrawn exclusively for
cooling purposes, measured on an average annual basis.
(b) In the case of a Phase II existing facility that is co-located
with a manufacturing facility, only that portion of the combined
cooling water intake flow that is used by the Phase II facility to
generate electricity for sale to another entity will be considered for
purposes of determining whether the 50 MGD and 25 percent criteria in
paragraphs (a)(2) and (4) of this section have been exceeded.
(c) Use of a cooling water intake structure includes obtaining
cooling water by any sort of contract or arrangement with one or more
independent suppliers of cooling water if the supplier withdraws water
from waters of the United States but is not itself a Phase II existing
facility, except as provided in paragraph (d) of this section. 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 Phase II existing facility.
(d) Notwithstanding paragraph (c) of this section, obtaining
cooling water from a public water system or using treated effluent as
cooling water does not constitute use of a cooling water intake
structure for purposes of this subpart.
Sec. 125.92 [Reserved]
Sec. 125.93 What special definitions apply to this subpart?
In addition to the definitions provided in Sec. 122.3 of this
chapter, the following special definitions apply to this subpart:
Adaptive management method is a type of project management method
where a facility chooses an approach to meeting the project goal,
monitors the effectiveness of that approach, and then based on
monitoring and any other relevant information, makes any adjustments
necessary to ensure continued progress toward the project's goal. This
cycle of activity is repeated as necessary to reach the project's goal.
Annual mean flow means the average of daily flows over a calendar
year.
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 that: the cooling
water system has been designed as a once-
[[Page 41684]]
through system; the opening of the cooling water intake structure is
located at, and the face of the standard \3/8\-inch mesh traveling
screen is oriented parallel to, the shoreline near the surface of the
source waterbody; and the baseline practices, procedures, and
structural configuration are those that your facility would maintain in
the absence of any structural or operational controls, including flow
or velocity reductions, implemented in whole or in part for the
purposes of reducing impingement mortality and entrainment. You may
also choose to use the current level of impingement mortality and
entrainment as the calculation baseline. The calculation baseline may
be estimated using: historical impingement mortality and entrainment
data from your facility or from another facility with comparable
design, operational, and environmental conditions; current biological
data collected in the waterbody in the vicinity of your cooling water
intake structure; or current impingement mortality and entrainment data
collected at your facility. You may request that the calculation
baseline be modified to be based on a location of the opening of the
cooling water intake structure at a depth other than at or near the
surface if you can demonstrate to the Director that the other depth
would correspond to a higher baseline level of impingement mortality
and/or entrainment.
Capacity utilization rate means the ratio between the average
annual net generation of power by the facility (in MWh) and the total
net capability of the facility to generate power (in MW) multiplied by
the number of hours during a year. In cases where a facility has more
than one intake structure, and each intake structure provides cooling
water exclusively to one or more generating units, the capacity
utilization rate may be calculated separately for each intake
structure, based on the capacity utilization of the units it services.
Applicable requirements under this subpart would then be determined
separately for each intake structure. The average annual net generation
should be measured over a five year period (if available) of
representative operating conditions, unless the facility makes a
binding commitment to maintain capacity utilization below 15 percent
for the life of the permit, in which case the rate may be based on this
commitment. For purposes of this subpart, the capacity utilization rate
applies to only that portion of the facility that generates electricity
for transmission or sale using a thermal cycle employing the steam
water system as the thermodynamic medium.
Closed-cycle recirculating system means a system designed, using
minimized make-up 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 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(a)(4).
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 and construction technology means any physical configuration
of the cooling water intake structure, or a technology that is placed
in the water body in front of the cooling water intake structure, to
reduce impingement mortality and/or entrainment. Design and
construction technologies include, but are not limited to, location of
the intake structure, intake screen systems, passive intake systems,
fish diversion and/or avoidance systems, and fish handling and return
systems. Restoration measures are not design and construction
technologies for purposes of this definition.
Design intake flow means the value assigned (during the cooling
water intake structure 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.
Diel means daily and refers to variation in organism abundance and
density over a 24-hour period due to the influence of water movement,
physical or chemical changes, and changes in light intensity.
Entrainment means the incorporation of any 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).
Existing facility means any facility that commenced construction as
described in 40 CFR 122.29(b)(4) on or before January 17, 2002; and any
modification of, or any addition of a unit at such a facility that does
not meet the definition of a new facility at Sec. 125.83.
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.
Impingement means the entrapment of any 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.
Moribund means dying; close to death.
Natural thermal stratification means the naturally occurring and/or
existing division of a waterbody into horizontal layers of differing
densities as a result of variations in temperature at different depths.
Ocean means marine open coastal waters with a salinity greater than
or
[[Page 41685]]
equal to 30 parts per thousand (by mass).
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 waterbody 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.
Operational measure means a modification to any operation at a
facility that serves to minimize impact to fish and shellfish from the
cooling water intake structure. Examples of operational measures
include, but are not limited to: reductions in cooling water intake
flow through the use of variable speed pumps and seasonal flow
reductions or shutdowns; and more frequent rotation of traveling
screens.
Phase II existing facility means any existing facility that meets
the criteria specified in Sec. 125.91.
Source water means the waters of the U.S. from which the cooling
water is withdrawn.
Supplier means an entity, other than the regulated facility, that
owns and operates its own cooling water intake structure and directly
withdraws water from waters of the United States. The supplier sells
the cooling water to other facilities for their use, but may also use a
portion of the water itself. An entity that provides potable water to
residential populations (e.g., public water system) is not a supplier
for purposes of this subpart.
Thermocline means the middle layer of a thermally stratified lake
or a reservoir. In this layer, there is a rapid change in temperatures
between the top and bottom of the layer.
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.
Sec. 125.94 How will requirements reflecting best technology
available for minimizing adverse environmental impact be established
for my Phase II existing facility?
(a) Compliance alternatives. You must select and implement one of
the following five alternatives for establishing best technology
available for minimizing adverse environmental impact at your facility:
(1)(i)You may demonstrate to the Director that you have reduced, or
will reduce, your flow commensurate with a closed-cycle recirculating
system. In this case, you are deemed to have met the applicable
performance standards and will not be required to demonstrate further
that your facility meets the impingement mortality and entrainment
performance standards specified in paragraph (b) of this section. In
addition, you are not subject to the requirements in Sec. Sec. 125.95,
125.96, 125.97, or 125.98. However, you may still be subject to any
more stringent requirements established under paragraph (e) of this
section; or
(ii) You may demonstrate to the Director that you have reduced, or
will reduce, your maximum through-screen design intake velocity to 0.5
ft/s or less. In this case, you are deemed to have met the impingement
mortality performance standards and will not be required to demonstrate
further that your facility meets the performance standards for
impingement mortality specified in paragraph (b) of this section and
you are not subject to the requirements in Sec. Sec. 125.95, 125.96,
125.97, or 125.98 as they apply to impingement mortality. However, you
are still subject to any applicable requirements for entrainment
reduction and may still be subject to any more stringent requirements
established under paragraph (e) of this section.
(2) 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 and/or the restoration requirements in paragraph (c) of
this section.
(3) You may demonstrate to the Director that you have selected, and
will install and properly operate and maintain, 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
and/or the restoration requirements in paragraph (c) of this section;
(4) You may demonstrate to the Director that you have installed, or
will install, and properly operate and maintain an approved design and
construction technology in accordance with Sec. 125.99(a) or (b); or
(5) You may demonstrate to the Director that you have selected,
installed, and are properly operating and maintaining, or will install
and properly operate and maintain design and construction technologies,
operational measures, and/or restoration measures that the Director has
determined to be the best technology available to minimize adverse
environmental impact for your facility in accordance with paragraphs
(a)(5)(i) or (ii) of this section.
(i) If the Director determines that data specific to your facility
demonstrate that the costs of compliance under alternatives in
paragraphs (a)(2) through (4) of this section would be significantly
greater than the costs considered by the Administrator for a facility
like yours in establishing the applicable performance standards in
paragraph (b) of this section, the Director must make a site-specific
determination of the best technology available for minimizing adverse
environmental impact. This determination must be based on reliable,
scientifically valid cost and performance data submitted by you and any
other information that the Director deems appropriate. The Director
must establish site-specific alternative requirements based on new and/
or existing design and construction technologies, operational measures,
and/or restoration measures that achieve an efficacy that is, in the
judgment of the Director, as close as practicable to the applicable
performance standards in paragraph (b) of this section, without
resulting in costs that are significantly greater than the costs
considered by the Administrator for a facility like yours in
establishing the applicable performance standards. 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 the
significantly greater costs. To calculate the costs considered by the
Administrator for a facility like yours in establishing the applicable
performance standards you must:
(A) Determine which technology the Administrator modeled as the
most appropriate compliance technology for your facility;
(B) Using the Administrator's costing equations, calculate the
annualized capital and net operation and maintenance (O&M) costs for a
facility with your design intake flow using this technology;
(C) Determine the annualized net revenue loss associated with net
construction downtime that the Administrator modeled for your facility
to install this technology;
(D) Determine the annualized pilot study costs that the
Administrator modeled for your facility to test and optimize this
technology;
(E) Sum the cost items in paragraphs (a)(5)(i)(B), (C), and (D) of
this section; and
[[Page 41686]]
(F) Determine if the performance standards that form the basis of
these estimates (i.e., impingement mortality reduction only or
impingement mortality and entrainment reduction) are applicable to your
facility, and if necessary, adjust the estimates to correspond to the
applicable performance standards.
(ii) If the Director determines that data specific to your facility
demonstrate that the costs of compliance under alternatives in
paragraphs (a)(2) through (4) of this section would be significantly
greater than the benefits of complying with the applicable performance
standards at your facility, the Director must make a site-specific
determination of best technology available for minimizing adverse
environmental impact. This determination must be based on reliable,
scientifically valid cost and performance data submitted by you and any
other information the Director deems appropriate. The Director must
establish site-specific alternative requirements based on new and/or
existing design and construction technologies, operational measures,
and/or restoration measures that achieve an efficacy that, in the
judgment of the Director, is as close as practicable to the applicable
performance standards in paragraph (b) of this section without
resulting in costs that are significantly greater than the benefits at
your facility. 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.
(b) National performance standards.--(1) Impingement mortality
performance standards. If you choose compliance alternatives in
paragraphs (a)(2), (a)(3), or (a)(4) of this section, you must reduce
impingement mortality for all life stages of fish and shellfish by 80
to 95 percent from the calculation baseline.
(2) Entrainment performance standards. If you choose compliance
alternatives in paragraphs (a)(1)(ii), (a)(2), (a)(3), or (a)(4) of
this section, you must also reduce entrainment of all life stages of
fish and shellfish by 60 to 90 percent from the calculation baseline
if:
(i) Your facility has a capacity utilization rate of 15 percent or
greater, and
(ii)(A) Your facility uses cooling water withdrawn from a tidal
river, estuary, ocean, or one of the Great Lakes; or
(B) Your facility uses cooling water withdrawn from a freshwater
river or stream and the design intake flow of your cooling water intake
structures is greater than five percent of the mean annual flow.
(3) Additional performance standards for facilities withdrawing
from a lake (other than one of the Great Lakes) or a reservoir. If your
facility withdraws cooling water from a lake (other than one of the
Great Lakes) or a reservoir and you propose to increase the design
intake flow of cooling water intake structures it uses, your increased
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 does not adversely affect the management of
fisheries. In determining whether any such disruption does not
adversely affect the management of fisheries, you must consult with
Federal, State, or Tribal fish and wildlife management agencies).
(4) Use of performance standards for site-specific determinations
of best technology available. The performance standards in paragraphs
(b)(1) through (3) of this section must also be used for determining
eligibility for site-specific determinations of best technology
available for minimizing adverse environmental impact and establishing
site specific requirements that achieve an efficacy as close as
practicable to the applicable performance standards without resulting
in costs that are significantly greater than those considered by the
Administrator for a facility like yours in establishing the performance
standards or costs that are significantly greater than the benefits at
your facility, pursuant to Sec. 125.94(a)(5).
(c) Requirements for restoration measures. With the approval of the
Director, you may implement and adaptively manage restoration measures
that produce and result in increases of fish and shellfish in your
facility's watershed in place of or as a supplement to installing
design and control technologies and/or adopting operational measures
that reduce impingement mortality and entrainment. You must demonstrate
to the Director that:
(1) You have evaluated the use of design and construction
technologies and operational measures for your facility and determined
that the use of restoration measures is appropriate because meeting the
applicable performance standards or site-specific requirements through
the use of design and construction technologies and/or operational
measures alone is less feasible, less cost-effective, or less
environmentally desirable than meeting the standards or requirements in
whole or in part through the use of restoration measures; and
(2) The restoration measures you will implement, alone or in
combination with design and construction technologies and/or
operational measures, will produce ecological benefits (fish and
shellfish), including maintenance or protection of community structure
and function in your facility's waterbody or watershed, at a level that
is substantially similar to the level you would achieve by meeting the
applicable performance standards under paragraph (b) of this section,
or that satisfies alternative site-specific requirements established
pursuant to paragraph (a)(5) of this section.
(d)(1) Compliance using a technology installation and operation
plan or restoration plan. If you choose one of the compliance
alternatives in paragraphs (a)(2), (3), (4), or (5) of this section,
you may request that compliance with the requirements of Sec.
125.94(b) during the first permit containing requirements consistent
with this subpart be determined based on whether you have complied with
the construction, operational, maintenance, monitoring, and adaptive
management requirements of a Technology Installation and Operation Plan
developed in accordance with Sec. 125.95(b)(4)(ii) (for any design and
construction technologies and/or operational measures) and/or a
Restoration Plan developed in accordance with Sec. 125.95(b)(5) (for
any restoration measures). The Technology Installation and Operation
Plan must be designed to meet applicable performance standards in
paragraph (b) of this section or alternative site-specific requirements
developed pursuant to paragraph (a)(5) of this section. The Restoration
Plan must be designed to achieve compliance with the applicable
requirements in paragraph (c) of this section.
(2) During subsequent permit terms, if you selected and installed
design and construction technologies and/or operational measures and
have been in compliance with the construction, operational,
maintenance, monitoring, and adaptive management requirements of your
Technology Installation and Operation Plan during the preceding permit
term, you may request that compliance with the requirements of Sec.
125.94 during the following permit term be determined based on whether
you remain in compliance with your Technology Installation and
Operation Plan, revised in accordance with your adaptive management
plan in Sec. 125.95(b)(4)(ii)(C) if applicable performance standards
are not being
[[Page 41687]]
met. Each request and approval of a Technology Installation and
Operation Plan shall be limited to one permit term.
(3) During subsequent permit terms, if you selected and installed
restoration measures and have been in compliance with the construction,
operational, maintenance, monitoring, and adaptive management
requirements in your Restoration Plan during the preceding permit term,
you may request that compliance with the requirements of this section
during the following permit term be determined based on whether you
remain in compliance with your Restoration Plan, revised in accordance
with your adaptive management plan in Sec. 125.95(b)(5)(v) if
applicable performance standards are not being met. Each request and
approval of a Restoration Plan shall be limited to one permit term.
(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 this section would not
meet the requirements of applicable State and Tribal law, or other
Federal law.
(f) Nuclear facilities. If you demonstrate to the Director based on
consultation with the Nuclear Regulatory Commission that compliance
with this subpart would result in a conflict with a safety requirement
established by the Commission, the Director must make a site-specific
determination of best technology available for minimizing adverse
environmental impact that would not result in a conflict with the
Nuclear Regulatory Commission's safety requirement.
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)(1) You must submit to the Director the Proposal for Information
Collection required in paragraph (b)(1) of this section prior to the
start of information collection activities;
(2) You must submit to the Director the information required in 40
CFR 122.21(r)(2), (r)(3) and (r)(5) and any applicable portions of the
Comprehensive Demonstration Study (Study), except for the Proposal for
Information Collection required by paragraph (b)(1) of this section;
and
(i) You must submit your NPDES permit application in accordance
with the time frames specified in 40 CFR 122.21(d)(2).
(ii) If your existing permit expires before [Insert date 4 years
after date of publication in the FR], you may request that the Director
establish a schedule for you to submit the information required by this
section as expeditiously as practicable, but not later than [Insert
date 3 years and 180 days after date of publication in the FR]. Between
the time your existing permit expires and the time an NPDES permit
containing requirements consistent with this subpart is issued to your
facility, the best technology available to minimize adverse
environmental impact will continue to be determined based on the
Director's best professional judgment.
(3) In subsequent permit terms, the Director may approve a request
to reduce the information required to be submitted in your permit
application on the cooling water intake structure(s) and the source
waterbody, if conditions at your facility and in the waterbody remain
substantially unchanged since your previous application. You must
submit your request for reduced cooling water intake structure and
waterbody application information to the Director at least one year
prior to the expiration of the permit. Your request must identify each
required information item in Sec. 122.21(r) and this section that you
determine has not substantially changed since the previous permit
application and the basis for your determination.
(b) Comprehensive Demonstration Study. The purpose of the
Comprehensive Demonstration Study (The Study) is to characterize
impingement mortality and entrainment, to describe the operation of
your cooling water intake structures, and to confirm that the
technologies, operational measures, and/or restoration measures you
have selected and installed, or will install, at your facility meet the
applicable requirements of Sec. 125.94. All facilities except those
that have met the applicable requirements in accordance with Sec. Sec.
125.94(a)(1)(i), 125.94(a)(1)(ii), and 125.94(a)(4) must submit all
applicable portions of the Comprehensive Demonstration Study to the
Director in accordance with paragraph (a) of this section. Facilities
that meet the requirements in Sec. 125.94(a)(1)(i) by reducing their
flow commensurate with a closed-cycle, recirculating system are not
required to submit a Comprehensive Demonstration Study. Facilities that
meet the requirements in Sec. 125.94(a)(1)(ii) by reducing their
design intake velocity to 0.5 ft/sec or less are required to submit a
Study only for the entrainment requirements, if applicable. Facilities
that meet the requirements in Sec. 125.94(a)(4) and have installed and
properly operate and maintain an approved design and construction
technology (in accordance with Sec. 125.99) are required to submit
only the Technology Installation and Operation Plan in paragraph (b)(4)
of this section and the Verification Monitoring Plan in paragraph
(b)(7) of this section. Facilities that are required to meet only
impingement mortality performance standards in Sec. 125.94(b)(1) are
required to submit only a Study for the impingement mortality reduction
requirements. The Comprehensive Demonstration Study must include:
(1) Proposal For Information Collection. You must submit to the
Director for review and comment a description of the information you
will use to support your Study. The Proposal for Information must be
submitted prior to the start of information collection activities, but
you may initiate such activities prior to receiving comment from the
Director. The proposal must include:
(i) A description of the proposed and/or implemented technologies,
operational measures, and/or restoration measures to be evaluated in
the Study;
(ii) A list and description of any historical studies
characterizing impingement mortality 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 or ongoing 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 consultations; 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 mortality 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(s)), and provide a
[[Page 41688]]
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 whether your design intake
flow is greater than five percent of the mean annual flow of the river
or stream for purposes of determining applicable performance standards
under paragraph (b) of this section. Representative historical data
(from a period of time up to 10 years, if available) must be used; and
(ii) If your cooling water intake structure is located in a lake
(other than one of the Great Lakes) or a reservoir and you propose to
increase its design intake flow, you must provide a description of the
thermal stratification in the waterbody, and any supporting
documentation and engineering calculations to show that the total
design intake flow after the increase will not disrupt the natural
thermal stratification and turnover pattern in a way that adversely
impacts fisheries, including the results of any consultations with
Federal, State, or Tribal fish and wildlife management agencies.
(3) Impingement Mortality and/or Entrainment Characterization
Study. You must submit to the Director an Impingement Mortality and/or
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/or Entrainment Characterization Study must include the
following, in sufficient detail to support development of the other
elements of the Comprehensive Demonstration Study:
(i) Taxonomic identifications of all life stages of fish,
shellfish, and any species protected under Federal, State, or Tribal
Law (including threatened or endangered species) that are in the
vicinity of the cooling water intake structure(s) and are susceptible
to impingement and entrainment;
(ii) A characterization of all life stages of fish, shellfish, and
any species protected under Federal, State, or Tribal Law (including
threatened or endangered species) identified pursuant to paragraph
(b)(3)(i) of this section, including a description of the abundance and
temporal and spatial characteristics in the vicinity of the cooling
water intake structure(s), based on sufficient data to characterize
annual, seasonal, and diel variations in impingement mortality and
entrainment (e.g., related to climate and weather differences,
spawning, feeding and water column migration). These may include
historical data that are representative of the current operation of
your facility and of biological conditions at the site;
(iii) Documentation of the current impingement mortality and
entrainment of all life stages of fish, shellfish, and any species
protected under Federal, State, or Tribal Law (including threatened or
endangered species) identified pursuant to paragraph (b)(3)(i) of this
section and an estimate of impingement mortality and entrainment to be
used as 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 paragraphs (b)(4)(i)(C) and (b)(5)(iii) 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;
(4) Technology and compliance assessment information--(i) Design
and Construction Technology Plan. If you choose to use design and
construction technologies and/or operational measures, in whole or in
part to meet the requirements of Sec. 125.94(a)(2) or (3), 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 (or for individual intake structures
where applicable, in accordance with Sec. 125.93) 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 underlying calculations. The plan must explain
the technologies and/or operational measures you have in place and/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, vertical and/or
lateral relocation of the cooling water intake structure, 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, reductions in
flow, and continuous or more frequent rotation of traveling screens.)
The plan must contain the following information:
(A) A narrative description of the design and operation of all
design and construction technologies and/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
technologies and/or operational measures for those species;
(B) A narrative description of the design and operation of all
design and construction technologies and/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 technologies and/or operational
measures for those species;
(C) 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/or operational measures you have
selected based on the Impingement Mortality and/or 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 calculation baseline
determined in accordance with 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/or operational measures already implemented at your
facility should be added to the reductions expected to be achieved by
any additional design and/or 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, but do
not reduce
[[Page 41689]]
flow sufficiently to satisfy the compliance option in Sec.
125.94(a)(1)(i) 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 design and
construction technologies and/or operational measures. This estimate
must include a site-specific evaluation of the suitability of the
technologies and/or operational measures based on the species that are
found at the site, and may be determined based on representative
studies (i.e., studies that have been conducted at a similar facility's
cooling water intake structures located in the same waterbody type with
similar biological characteristics) and/or site-specific technology
prototype or pilot studies; and
(D) Design and engineering calculations, drawings, and estimates
prepared by a qualified professional to support the descriptions
required by paragraphs (b)(4)(i)(A) and (B) of this section.
(ii) Technology Installation and Operation Plan. If you choose the
compliance alternative in Sec. 125.94(a)(2), (3), (4), or (5) and use
design and construction technologies and/or operational measures in
whole or in part to comply with the applicable requirements of Sec.
125.94, you must submit the following information with your application
for review and approval by the Director:
(A) A schedule for the installation and maintenance of any new
design and construction technologies. Any downtime of generating units
to accommodate installation and/or maintenance of these technologies
should be scheduled to coincide with otherwise necessary downtime
(e.g., for repair, overhaul, or routine maintenance of the generating
units) to the extent practicable. Where additional downtime is
required, you may coordinate scheduling of this downtime with the North
American Electric Reliability Council and/or other generators in your
area to ensure that impacts to reliability and supply are minimized;
(B) List of operational and other parameters to be monitored, and
the location and frequency that you will monitor them;
(C) List of activities you will undertake to ensure to the degree
practicable the efficacy of installed design and construction
technologies and operational measures, and your schedule for
implementing them;
(D) A schedule and methodology for assessing the efficacy of any
installed design and construction technologies and operational measures
in meeting applicable performance standards or site-specific
requirements, including an adaptive management plan for revising design
and construction technologies, operational measures, operation and
maintenance requirements, and/or monitoring requirements if your
assessment indicates that applicable performance standards or site-
specific requirements are not being met; and
(E) If you choose the compliance alternative in Sec. 125.94(a)(4),
documentation that the appropriate site conditions in Sec. 125.99(a)
or (b) exist at your facility.
(5) Restoration Plan. If you propose to use restoration measures,
in whole or in part, to meet the applicable requirements in Sec.
125.94, you must submit the following information with your application
for review and approval by the Director. You must address species of
concern identified 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(s).
(i) A demonstration to the Director that you have evaluated the use
of design and construction technologies and/or operational measures for
your facility and an explanation of how you determined that restoration
would be more feasible, cost-effective, or environmentally desirable;
(ii) A narrative description of the design and operation of all
restoration measures (existing and proposed) that you have in place or
will use to produce fish and shellfish;
(iii) Quantification of the ecological benefits of the proposed
restoration measures. You must use information from the Impingement
Mortality and/or Entrainment Characterization Study required in
paragraph (b)(3) of this section, and any other available and
appropriate information, to estimate the reduction in fish and
shellfish impingement mortality and/or entrainment that would be
necessary for your facility to comply with Sec. 125.94(c)(2). You must
then calculate the production of fish and shellfish that you will
achieve with the restoration measures you will or have already
installed. You must include a discussion of the nature and magnitude of
uncertainty associated with the performance of these restoration
measures. You must also include a discussion of the time frame within
which these ecological benefits are expected to accrue;
(iv) Design calculations, drawings, and estimates to document that
your proposed restoration measures in combination with design and
construction technologies and/or operational measures, or alone, will
meet the requirements of Sec. 125.94(c)(2). If the restoration
measures address the same fish and shellfish species identified in the
Impingement Mortality and/or Entrainment Characterization Study (in-
kind restoration), you must demonstrate that the restoration measures
will produce a level of these fish and shellfish substantially similar
to that which would result from meeting applicable performance
standards in Sec. 125.94(b), or that they will satisfy site-specific
requirements established pursuant to Sec. 125.94(a)(5). If the
restoration measures address fish and shellfish species different from
those identified in the Impingement Mortality and/or Entrainment
Characterization Study (out-of-kind restoration), you must demonstrate
that the restoration measures produce ecological benefits substantially
similar to or greater than those that would be realized through in-kind
restoration. Such a demonstration should be based on a watershed
approach to restoration planning and consider applicable multi-agency
watershed restoration plans, site-specific peer-reviewed ecological
studies, and/or consultation with appropriate Federal, State, and
Tribal fish and wildlife management agencies.
(v) A plan utilizing an adaptive management method for
implementing, maintaining, and demonstrating the efficacy of the
restoration measures you have selected and for determining the extent
to which the restoration measures, or the restoration measures in
combination with design and construction technologies and operational
measures, have met the applicable requirements of Sec. 125.94(c)(2).
The plan must include:
(A) A monitoring plan that includes a list of the restoration
parameters that will be monitored, the frequency at which you will
monitor them, and success criteria for each parameter;
(B) A list of activities you will undertake to ensure the efficacy
of the restoration measures, a description of the linkages between
these activities and the items in paragraph (b)(5)(v)(A) of this
section, and an implementation schedule; and
(C) A process for revising the Restoration Plan as new information,
including monitoring data, becomes available, if the applicable
requirements under Sec. 125.94(c)(2) are not being met.
(vi) A summary of any past or ongoing consultation with appropriate
Federal, State, and Tribal fish and wildlife management agencies on
your use of restoration measures including a copy of
[[Page 41690]]
any written comments received as a result of such consultations;
(vii) If requested by the Director, a peer review of the items you
submit for the Restoration Plan. You must choose the peer reviewers in
consultation with the Director who may consult with EPA and Federal,
State, and Tribal fish and wildlife management agencies with
responsibility for fish and wildlife potentially affected by your
cooling water intake structure(s). Peer reviewers must have appropriate
qualifications (e.g., in the fields of geology, engineering, and/or
biology, etc.) depending upon the materials to be reviewed; and
(viii) A description of the information to be included in a bi-
annual status report to the Director.
(6) Information to support site-specific determination of best
technology available for minimizing adverse environmental impact. If
you have requested a site-specific determination of best technology
available for minimizing adverse environmental impact pursuant to Sec.
125.94(a)(5)(i) because of costs significantly greater than those
considered by the Administrator for a facility like yours in
establishing the applicable performance standards of Sec. 125.94(b),
you are required to provide to the Director the information specified
in paragraphs (b)(6)(i) and (b)(6)(iii) of this section. If you have
requested a site-specific determination of best technology available
for minimizing adverse environmental impact pursuant to Sec.
125.94(a)(5)(ii) because of costs significantly greater than the
benefits of meeting the applicable performance standards of Sec.
125.94(b) at your facility, you must provide the information specified
in paragraphs (b)(6)(i), (b)(6)(ii), and (b)(6)(iii) of this section:
(i) Comprehensive Cost Evaluation Study. You must perform and
submit the results of a Comprehensive Cost Evaluation Study, that
includes:
(A) Engineering cost estimates in sufficient detail to document the
costs of implementing design and construction technologies, operational
measures, and/or restoration measures at your facility that would be
needed to meet the applicable performance standards of Sec. 125.94(b);
(B) A demonstration that the costs documented in paragraph
(b)(6)(i)(A) of this section significantly exceed either those
considered by the Administrator for a facility like yours in
establishing the applicable performance standards or the benefits of
meeting the applicable performance standards at your facility; and
(C) Engineering cost estimates in sufficient detail to document the
costs of implementing the design and construction technologies,
operational measures, and/or restoration measures in your Site-Specific
Technology Plan developed in accordance with paragraph (b)(6)(iii) of
this section.
(ii) Benefits Valuation Study. 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 meeting the applicable performance standards of Sec.
125.94(b) at your facility, you must use a comprehensive methodology to
fully value the impacts of impingement mortality and entrainment at
your site and the benefits achievable by meeting the applicable
performance standards. In addition to the valuation estimates, the
benefit study must include the following:
(A) A description of the methodology(ies) used to value commercial,
recreational, and ecological benefits (including any non-use benefits,
if applicable);
(B) Documentation of the basis for any assumptions and quantitative
estimates. If you plan to use an entrainment survival rate other than
zero, you must submit a determination of entrainment survival at your
facility based on a study approved by the Director;
(C) An analysis of the effects of significant sources of
uncertainty on the results of the study; and
(D) If requested by the Director, a peer review of the items you
submit in the Benefits Valuation Study. You must choose the peer
reviewers in consultation with the Director who may consult with EPA
and Federal, State, and Tribal fish and wildlife management agencies
with responsibility for fish and wildlife potentially affected by your
cooling water intake structure. Peer reviewers must have appropriate
qualifications depending upon the materials to be reviewed.
(E) A narrative description of any non-monetized benefits that
would be realized at your site if you were to meet the applicable
performance standards and a qualitative assessment of their magnitude
and significance.
(iii) Site-Specific Technology Plan. Based on the results of the
Comprehensive Cost Evaluation Study required by paragraph (b)(6)(i) of
this section, and the Benefits Valuation Study required by paragraph
(b)(6)(ii) of this section, if applicable, 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
existing and proposed design and construction technologies, operational
measures, and/or restoration measures that you have selected in
accordance with Sec. 125.94(a)(5);
(B) An engineering estimate of the efficacy of the proposed and/or
implemented design and construction technologies or operational
measures, and/or restoration measures. This estimate must include a
site-specific evaluation of the suitability of the technologies or
operational measures for reducing impingement mortality and/or
entrainment (as applicable) of all life stages of fish and shellfish
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, if applicable, site-
specific technology prototype or pilot studies. If restoration measures
will be used, you must provide a Restoration Plan that includes the
elements described in paragraph (b)(5) of this section.
(C) A demonstration that the proposed and/or implemented design and
construction technologies, operational measures, and/or restoration
measures achieve an efficacy that is as close as practicable to the
applicable performance standards of Sec. 125.94(b) without resulting
in costs significantly greater than either the costs considered by the
Administrator for a facility like yours in establishing the applicable
performance standards, or as appropriate, the benefits of complying
with the applicable performance standards at your facility;
(D) Design and engineering calculations, drawings, and estimates
prepared by a qualified professional to support the elements of the
Plan.
(7) Verification Monitoring Plan. If you comply using compliance
alternatives in Sec. 125.94(a)(2), (3), (4), or (5) using design and
construction technologies and/or operational measures, you must submit
a plan to conduct, at a minimum, two years of monitoring to verify the
full-scale performance of the proposed or already implemented
technologies and/or operational measures. The verification study must
begin once the design and construction technologies and/or operational
measures are installed and continue for a period of time that is
sufficient to demonstrate to the Director whether the facility is
meeting the applicable performance standards in Sec. 125.94(b) or
site-specific requirements
[[Page 41691]]
developed pursuant to Sec. 125.94(a)(5). The plan must provide the
following:
(i) Description of the frequency and duration of monitoring, the
parameters to be monitored, and the basis for determining the
parameters and the frequency and duration for monitoring. The
parameters selected and duration and frequency of monitoring must be
consistent with any methodology for assessing success in meeting
applicable performance standards in your Technology Installation and
Operation Plan as required by paragraph (b)(4)(ii) of this section.
(ii) A proposal on how naturally moribund fish and shellfish that
enter the cooling water intake structure would be identified and taken
into account in assessing success in meeting the performance standards
in Sec. 125.94(b).
(iii)A description of the information to be included in a bi-annual
status report to the Director.
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 applicable, in accordance with the Technology
Installation and Operation Plan required by Sec. 125.95(b)(4)(ii), the
Restoration Plan required by Sec. 125.95(b)(5), the Verification
Monitoring Plan required by Sec. 125.95(b)(7), and any additional
monitoring 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 submitted under Sec. 125.96, for a
period of at least three (3) years from date of permit issuance. The
Director may require that these records be kept for a longer period.
(b) You must submit a status report to the Director for review
every two years that includes appropriate monitoring data and other
information as specified by the Director in accordance with Sec.
125.98(b)(5).
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) You must review and comment on the Proposal for Information
Collection submitted by the facility in accordance with Sec.
125.95(a)(1). You are encouraged to provide comments expeditiously so
that the permit applicant can make responsive modifications to its
information gathering activities. If a facility submits a request in
accordance with Sec. 125.95(a)(2)(ii) for an alternate schedule for
submitting the information required in Sec. 125.95, you must approve a
schedule that is as expeditious as practicable, but does not extend
beyond January 7, 2008. If a facility submits a request in accordance
with Sec. 125.95(a)(3) to reduce the information about their cooling
water intake structures and the source waterbody required to be
submitted in their permit application (other than with the first permit
application after September 7, 2004), you must approve the request
within 60 days if conditions at the facility and in the waterbody
remain substantially unchanged since the previous application.
(2) After receiving the permit application from the owner or
operator of a Phase II existing facility, you must determine which of
the requirements specified in Sec. 125.94 apply to the facility. In
addition, you must review materials to determine compliance with the
applicable requirements.
(3) At each permit renewal, you must review the application
materials and monitoring data to determine whether new or revised
requirements for design and construction technologies, operational
measures, or restoration measures should be included in the permit to
meet the applicable performance standards in Sec. 125.94(b) or
alternative site-specific requirements established pursuant to Sec.
125.94(a)(5).
(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
compliance alternatives in Sec. 125.94(a). The following requirements
must be included in each permit:
(1) Cooling water intake structure requirements. The permit
conditions must include the requirements that implement the applicable
provisions of Sec. 125.94. You must evaluate the performance of the
design and construction technologies, operational measures, and/or
restoration measures proposed and implemented by the facility and
require additional or different design and construction technologies,
operational measure, and/or restoration measures, and/or improved
operation and maintenance of existing technologies and measures, if
needed to meet the applicable performance standards, restoration
requirements, or alternative site-specific requirements. In determining
compliance with the performance standards for facilities proposing to
increase withdrawals of cooling water from a lake (other than a Great
Lake) or a reservoir in Sec. 125.94(b)(3), you must consider
anthropogenic factors (those not considered ``natural'') unrelated to
the Phase II existing facility's cooling water intake structures 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). As the
Director, you must coordinate with appropriate Federal, State, or
Tribal fish and wildlife management agencies to determine if any
disruption of the natural thermal stratification resulting from the
proposed increased withdrawal of cooling water does not adversely
affect the management of fisheries. Specifically:
(i) You must review and approve the Design and Construction
Technology Plan required in Sec. 125.95(b)(4) to evaluate the
suitability and feasibility of the design and construction technology
and/or operational measures proposed to meet the performance standards
in Sec. 125.94(b) or site-specific requirements developed pursuant to
Sec. 125.94(a)(5).
(ii) If the facility proposes restoration measures in accordance
with Sec. 125.94(c), you must review and approve the Restoration Plan
required under Sec. 125.95(b)(5) to determine whether the proposed
measures, alone or in combination with design and construction
technologies and/or operational measures, will meet the requirements
under Sec. 125.94(c).
(iii) In each reissued permit, you must include a condition in the
permit requiring the facility to reduce impingement mortality and
entrainment (or to increase fish production, if applicable)
commensurate with the efficacy at the facility of the installed design
and construction technologies,
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operational measures, and/or restoration measures.
(iv) If the facility implements design and construction
technologies and/or operational measures and requests that compliance
with the requirements in Sec. 125.94 be measured for the first permit
term (or subsequent permit terms, if applicable) employing the
Technology Installation and Operation Plan in accordance with Sec.
125.95(b)(4)(ii), you must review the Technology Installation and
Operation Plan to ensure it meets the requirements of Sec.
125.95(b)(4)(ii). If the Technology Installation and Operation Plan
meets the requirements of Sec. 125.95(b)(4)(ii), you must approve the
Technology Installation and Operation Plan and require the facility to
meet the terms of the plan including any revision to the plan that may
be necessary if applicable performance standards or alternative site-
specific requirements are not being met. If the facility implements
restoration measures and requests that compliance with the requirements
in Sec. 125.94 be measured for the first permit term (or subsequent
permit terms, if applicable) employing a Restoration Plan in accordance
with Sec. 125.95(b)(5), you must review the Restoration Plan to ensure
it meets the requirements of Sec. 125.95(b)(5). If the Restoration
Plan meets the requirements of Sec. 125.95(b)(5), you must approve the
plan and require the facility to meet the terms of the plan including
any revision to the plan that may be necessary if applicable
performance standards or site-specific requirements are not being met.
In determining whether to approve a Technology Installation and
Operation Plan or Restoration Plan, you must evaluate whether the
design and construction technologies, operational measures, and/or
restoration measures the facility has installed, or proposes to
install, can reasonably be expected to meet the applicable performance
standards in Sec. 125.94(b), restoration requirements in Sec.
125.94(c)(2), and/or alternative site-specific requirements established
pursuant to Sec. 125.94(a)(5), and whether the Technology Installation
and Operation Plan and/or Restoration Plan complies with the applicable
requirements of Sec. 125.95(b). In reviewing the Technology
Installation and Operation Plan, you must approve any reasonable
scheduling provisions that are designed to ensure that impacts to
energy reliability and supply are minimized, in accordance with Sec.
125.95(b)(4)(ii)(A). If the facility does not request that compliance
with the requirements in Sec. 125.94 be measured employing a
Technology Installation and Operation Plan and/or Restoration Plan, or
the facility has not been in compliance with the terms of its current
Technology Installation and Operation Plan and/or Restoration Plan
during the preceding permit term, you must require the facility to
comply with the applicable performance standards in Sec. 125.94(b),
restoration requirement in Sec. 125.94(c)(2), and/or alternative site-
specific requirements developed pursuant to Sec. 125.94(a)(5). In
considering a permit application, you must review the performance of
the design and construction technologies, operational measures, and/or
restoration measures implemented and require additional or different
design and construction technologies, operational measures, and/or
restoration measures, and/or improved operation and maintenance of
existing technologies and measures, if needed to meet the applicable
performance standards, restoration requirements, and/or alternative
site-specific requirements.
(v) You must review and approve the proposed Verification
Monitoring Plan submitted under Sec. 125.95(b)(7) (for design and
construction technologies) and/or monitoring provisions of the
Restoration Plan submitted under Sec. 125.95(b)(5)(v) and require that
the monitoring continue for a sufficient period of time to demonstrate
whether the design and construction technology, operational measures,
and/or restoration measures meet the applicable performance standards
in Sec. 125.94(b), restoration requirements in 125.94(c)(2) and/or
site-specific requirements established pursuant to Sec. 125.94(a)(5).
(vi) If a facility requests requirements based on a site-specific
determination of best technology available for minimizing adverse
environmental impact, you must review the application materials
submitted under Sec. 125.95(b)(6) and any other information you may
have, including quantitative and qualitative benefits, that would be
relevant to a determination of whether alternative requirements are
appropriate for the facility. If a facility submits a study to support
entrainment survival at the facility, you must review and approve the
results of that study. 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. 125.94(a)(5). You, as the Director, may request
revisions to the information submitted by the facility in accordance
with Sec. 125.95(b)(6) if it does not provide an adequate basis for
you to make this determination. Any alternative site-specific
requirements established based on new and/or existing design and
construction technologies, operational measures, and/or restoration
measures, must achieve an efficacy that is, in your judgement, as close
as practicable to the applicable performance standards of Sec.
125.94(b) without resulting in costs that are significantly greater
than the costs considered by the Administrator for a like facility in
establishing the applicable performance standards in Sec. 125.94(b),
determined in accordance with Sec. 125.94(a)(5)(i)(A) through (F), or
the benefits of complying with the applicable performance standards at
the facility; and
(vii) You must review the proposed methods for assessing success in
meeting applicable performance standards and/or restoration
requirements submitted by the facility under Sec. 125.95(b)(4)(ii)(D)
and/or (b)(5)(v)(A), evaluate those and other available methods, and
specify how assessment of success in meeting the performance standards
and/or restoration requirements must be determined including the
averaging period for determining the percent reduction in impingement
mortality and entrainment and/or the production of fish and shellfish.
Compliance for facilities who request that compliance be measured
employing a Technology Installation and Operation Plan and/or
Restoration Plan must be determined in accordance with Sec.
125.98(b)(1)(iv).
(2) Monitoring conditions. You must require the facility to perform
monitoring in accordance with the Technology Installation and Operation
Plan in Sec. 125.95(b)(4)(ii), the Restoration Plan required by Sec.
125.95(b)(5), if applicable, and the Verification Monitoring Plan
required by Sec. 125.95(b)(7). In determining any additional
applicable monitoring requirements in accordance with Sec. 125.96, you
must consider the monitoring facility's Verification Monitoring,
Technology Installation and Operation, and/or Restoration Plans, as
appropriate. You may modify the monitoring program based on changes in
physical or biological conditions in the vicinity of the cooling water
intake structure.
(3) Recordkeeping and reporting. At a minimum, the permit must
require the facility to report and keep records specified in Sec.
125.97.
(4) Design and construction technology approval--(i) For a facility
that chooses to demonstrate that it has installed and properly operate
and maintain a design and construction technology approved in
accordance with Sec. 125.99, the Director must review
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and approve the information submitted in the Technology Installation
and Operation Plan in Sec. 125.95(b)(4)(ii) and determine if it meets
the criteria in Sec. 125.99.
(ii) If a person requests approval of a technology under Sec.
125.99(b), the Director must review and approve the information
submitted and determine its suitability for widespread use at
facilities with similar site conditions in its jurisdiction with
minimal study. As the Director, you must evaluate the adequacy of the
technology when installed in accordance with the required design
criteria and site conditions to consistently meet the performance
standards in Sec. 125.94. You, as the Director, may only approve a
technology following public notice and consideration of comment
regarding such approval.
(5) Bi-annual status report. You must specify monitoring data and
other information to be included in a status report every two years.
The other information may include operation and maintenance records,
summaries of adaptive management activities, or any other information
that is relevant to determining compliance with the terms of the
facility's Technology Operation and Installation Plan and/or
Restoration Plan.
Sec. 125.99 What are approved design and construction technologies?
(a) The following technologies constitute approved design and
construction technologies for purposes of Sec. 125.94(a)(4):
(1) Submerged cylindrical wedge-wire screen technology, if you meet
the following conditions:
(i) Your cooling water intake structure is located in a freshwater
river or stream;
(ii) Your cooling water intake structure is situated such that
sufficient ambient counter currents exist to promote cleaning of the
screen face;
(iii)Your maximum through-screen design intake velocity is 0.5 ft/s
or less;
(iv) The slot size is appropriate for the size of eggs, larvae, and
juveniles of all fish and shellfish to be protected at the site; and
(v) Your entire main condenser cooling water flow is directed
through the technology. Small flows totaling less than 2 MGD for
auxiliary plant cooling uses are excluded from this provision.
(2) A technology that has been approved in accordance with the
process described in paragraph (b) of this section.
(b) You or any other interested person may submit a request to the
Director that a technology be approved in accordance with the
compliance alternative in Sec. 125.94(a)(4) after providing the public
with notice and an opportunity to comment on the request for approval
of the technology. If the Director approves the technology, it may be
used by all facilities with similar site conditions under the
Director's jurisdiction. Requests for approval of a technology must be
submitted to the Director and include the following information:
(1) A detailed description of the technology;
(2) A list of design criteria for the technology and site
characteristics and conditions that each facility must have in order to
ensure that the technology can consistently meet the appropriate
impingement mortality and entrainment performance standards in Sec.
125.94(b); and
(3) Information and data sufficient to demonstrate that facilities
under the jurisdiction of the Director can meet the applicable
impingement mortality and entrainment performance standards in Sec.
125.94(b) if the applicable design criteria and site characteristics
and conditions are present at the facility.
[FR Doc. 04-4130 Filed 7-8-04; 8:45 am]
BILLING CODE 6560-50-P