[Federal Register Volume 65, Number 155 (Thursday, August 10, 2000)]
[Proposed Rules]
[Pages 49060-49121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19373]



[[Page 49059]]

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Part II





Environmental Protection Agency





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40 CFR Parts 9, 122, 123, et al.



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National Pollutant Discharge Elimination System; Cooling Water Intake 
Structures for New Facilities; Proposed Rules

  Federal Register / Vol. 65, No. 155 / Thursday, August 10, 2000 / 
Proposed Rules  

[[Page 49060]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 122, 123, 124, and 125

[FRL-6843-5]
RIN 2040-AC23


National Pollutant Discharge Elimination System--Regulations 
Addressing Cooling Water Intake Structures for New Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Today's proposed rule would implement section 316(b) of the 
Clean Water Act (CWA) for new facilities that use water withdrawn from 
rivers, streams, lakes, reservoirs, estuaries, oceans or other waters 
of the U.S. for cooling water purposes. The proposed rule would 
establish national requirements applicable to the location, design, 
construction, and capacity of cooling water intake structures at new 
facilities. The proposed national requirements would minimize the 
adverse environmental impact associated with the use of these 
structures.
    Today's proposed rule would establish location, design, 
construction, and capacity requirements that reflect the best 
technology available for minimizing adverse environmental impact from 
the cooling water intake structure based on the placement of the intake 
structure and the water body type. The Environmental Protection Agency 
(EPA) proposes to group surface water into four categories--freshwater 
rivers and streams, lakes and reservoirs, estuaries and tidal rivers, 
and oceans--and to establish requirements for cooling water intake 
structures located in each water body type. In general, the closer the 
intake structure is to areas that are most sensitive or biologically 
productive, the more stringent the requirements proposed to minimize 
adverse environmental impact. Under this proposal, EPA would set 
performance requirements and would not mandate the use of specific 
technologies.
    EPA expects that this proposed regulation would reduce impingement 
and entrainment at new facilities over the next 20 years. Today's 
proposed rule would establish requirements that would help preserve 
ecosystems in close proximity to cooling water intake structures at new 
facilities. EPA has considered the potential benefits of the proposal 
and the preamble discusses them in qualitative terms. Expected benefits 
include a decrease in expected mortality or injury to aquatic organisms 
that would otherwise be subject to entrainment into cooling water 
systems or impingement against screens or other devices at the entrance 
of cooling water intake structures. The proposed regulatory 
requirements also could reduce adverse impact on threatened and 
endangered species.

DATES: Comments on this proposed rule and Information Collection 
Request (ICR) must be received or postmarked on or before midnight 
October 10, 2000.

ADDRESSES: Public comments regarding this proposed rule should be 
submitted by mail to: Cooling Water Intake Structure (New Facilities) 
Proposed Rule Comment Clerk--W-00-03, Water Docket, Mail Code 4101, 
EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 
20460. Comments delivered in person (including overnight mail) should 
be submitted to the Cooling Water Intake Structure (New Facilities) 
Proposed Rule Comment Clerk--W-00-03, Water Docket, Room EB 57, 401 M 
Street, SW., Washington, DC 20460. You also may submit comments 
electronically to [email protected]. Please submit any references cited 
in your comments. Please submit an original and three copies of your 
written comments and enclosures. For additional information on how to 
submit comments, see ``SUPPLEMENTARY INFORMATION, How May I Submit 
Comments?''
    EPA has prepared an ICR for this proposed rule (EPA ICR number 
1973.01). For further information or a copy of the ICR contact Sandy 
Farmer by phone at (202)260-2740, e-mail at 
[email protected] or download off the internet at http://www.epa.gov/icr. Send comments on the Agency's need for this 
information, the accuracy of the burden estimates, and any suggested 
methods for minimizing respondent burden (including the use of 
automated collection techniques) to the following addresses. Please 
refer to EPA ICR No. 1973.01 in any correspondence.

Ms. Sandy Farmer, U.S. Environmental Protection Agency, OP Regulatory 
Information Division (2137), 401 M Street, SW., Washington, DC 20460
    and
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Attention: Desk Officer for EPA, 725 17th Street, NW., 
Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: For additional technical information 
contact Deborah G. Nagle at (202) 260-2656 or James T. Morgan at (202) 
260-6015. For additional economic information contact Lynne Tudor at 
(202) 260-5834. The e-mail address for the above contacts is 
``[email protected].''

SUPPLEMENTARY INFORMATION:

What Entities Are Potentially Regulated by This Action?

    This proposed rule would apply to new facilities that use cooling 
water intake structures to withdraw water from waters of the U.S. and 
that have or require a National Pollutant Discharge Elimination System 
(NPDES) permit issued under section 402 of the CWA. New facilities 
subject to this regulation would include those with a design intake 
flow of greater than two (2) million gallons per day (MGD). If a new 
facility meets these conditions, it is subject to today's proposed 
regulations. If a new facility has or requires an NPDES permit but does 
not meet the 2 MGD intake flow threshold, it would be subject to permit 
conditions implementing section 316(b) on a case-by-case basis, using 
best professional judgment. This proposal defines the term ``cooling 
water intake structure'' to mean the total physical structure and any 
associated constructed waterways used to withdraw water from waters of 
the U.S., provided that at least twenty-five (25) percent of the water 
withdrawn is used for cooling purposes. Generally, facilities that meet 
these criteria fall into two major groups: new steam electric 
generating facilities and new manufacturing facilities.
    The following table lists the types of entities that are 
potentially subject to this proposed rule. This table is not intended 
to be exhaustive, but rather provides a guide for readers regarding 
entities likely to be regulated by this action. This table lists the 
types of entities that EPA is now aware that could potentially be 
regulated by this action; other types of entities not listed in the 
table could also be regulated. To determine whether your facility would 
be regulated by this action, you should carefully examine the 
applicability criteria proposed at Sec. 125.81 of the rule. If you have 
questions regarding the applicability of this action to a particular 
entity, consult one of the persons listed for technical information in 
the preceding FOR FURTHER INFORMATION CONTACT section.

[[Page 49061]]



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                                                                                     Standard Industrial
               Category                     Examples of regulated entities           Classification Codes         North American Industry Code (NAIC)
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Federal, State and local government..  Operators of steam electric generating   4911 and 493.................  221111, 221112, 221113, 221119, 221121,
                                        point source dischargers that employ                                    221122, 221111, 221112, 221113, 221119,
                                        cooling water intake structures.                                        221121, 221122.
Industry.............................  Operators of industrial point source     See below....................  See below.
                                        dischargers that employ cooling water
                                        intake structures.
                                       Steam electric generating..............  4911 and 493.................  221111, 221112, 221113, 221119, 221121,
                                                                                                                221122, 221111, 221112, 221113, 221119,
                                                                                                                221121, 221122.
                                       Agricultural production................  0133.........................  111991 11193.
                                       Metal mining...........................  1011.........................  21221.
                                       Oil and gas extraction.................  1311, 1321...................  211111, 211112.
                                       Mining and quarrying of nonmetallic      1474.........................  212391.
                                        minerals.
                                       Food and kindred products..............  2046, 2061, 2062, 2063, 2075,  311221, 311311, 311312, 311313, 311222,
                                                                                 2085.                          311225, 31214.
                                       Tobacco products.......................  2141.........................  312229, 31221.
                                       Textile mill products..................  2211.........................  31321.
                                       Lumber and wood products, except         2415, 2421, 2436, 2493.......  321912, 321113, 321918, 321999, 321212,
                                        furniture.                                                              321219.
                                       Paper and allied products..............  2611, 2621, 2631, 2676.......  3221, 322121, 32213, 322121, 322122,
                                                                                                                32213, 322291.
                                       Chemical and allied products...........  28 (except 2895, 2893, 2851,   325 (except 325182, 32591, 32551, 32532).
                                                                                 and 2879).
                                       Petroleum refining and related           2911, 2999...................  32411, 324199.
                                        industries.
                                       Rubber and miscellaneous plastics        3011, 3069...................  326211, 31332, 326192, 326299.
                                        products.
                                       Stone, clay, glass, and concrete         3241.........................  32731.
                                        products.
                                       Primary metal industries...............  3312, 3313, 3315, 3316, 3317,  324199, 331111, 331112, 331492, 331222,
                                                                                 3334, 3339, 3353, 3363,        332618, 331221, 22121, 331312, 331419,
                                                                                 3365, 3366.                    331315, 331521, 331524, 331525.
                                       Fabricated metal products, except        3421, 3499...................  332211, 337215, 332117, 332439, 33251,
                                        machinery and transportation equipment.                                 332919, 339914, 332999.
                                       Industrial and commercial machinery and  3523, 3531...................  333111, 332323, 332212, 333922, 22651,
                                        computer equipment.                                                     333923, 33312.
                                       Transportation equipment...............  3724, 3743, 3764.............  336412, 333911, 33651, 336416.
                                       Measuring, analyzing, and controlling    3861.........................  333315, 325992.
                                        instruments; photographic, medical,
                                        and optical goods; watches and clocks.
                                       Electric, gas, and sanitary services...  4911, 4931, 4939, 4961.......  221111, 221112, 221113, 221119, 221121,
                                                                                                                221122, 22121, 22133.
                                       Educational services...................  8221.........................  61131.
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How May I Review the Public Record?

    The record (including supporting documentation) for this proposed 
rule is filed under docket number W-00-03 (proposed rule). The record 
is available for inspection from 9 a.m. to 4 p.m. on Monday through 
Friday, excluding legal holidays, at the Water Docket, Room EB 57, 
USEPA Headquarters, 401 M Street, SW, Washington, DC 20460. For access 
to docket materials, please call (202)260-3027 to schedule an 
appointment during the hours of operation stated above.

How May I Submit Comments?

    To ensure that EPA can read, understand, and therefore properly 
respond to comments, the Agency requests that you cite, where possible, 
the paragraph(s) or sections in the preamble, rule, or supporting 
documents to which each comment refers. You should use a separate 
paragraph for each issue you discuss.
    If you want EPA to acknowledge receipt of your comments, enclose a 
self-addressed, stamped envelope. No faxes will be accepted. Electronic 
comments must be submitted as a WordPerfect 5.1, 6.1, or 8 format, or 
an ASCII file or file avoiding the use of special characters and forms 
of encryption. Electronic comments must be identified by the docket 
number W-00-03. EPA will accept comments and data on disks in 
WordPerfect 5.1, 6.1, or 8 format or in ASCII file format. Electronic 
comments on this notice may be filed on-line at many Federal depository 
libraries.

Cooling Water Intake Structures: Section 316(b) New Facility Draft 
Preamble and Proposed Rule

Table of Contents

I. Legal Authority
II. Purpose and Summary of Proposed Regulation

[[Page 49062]]

    A. What Is the Purpose of Today's Proposed Regulation?
    B. What Requirements Would Today's Proposed Regulation 
Establish?
    C. How Does Today's Proposed Regulation Affect New Facilities 
Built Before Today's Proposal Is Finalized and Existing Facilities 
Subject to Section 316(b)?
III. Legal Background
    A. The Clean Water Act
    B. What Is Required Under Section 316 of the Clean Water Act?
IV. History
    A. Have Prior EPA Regulations Addressed Cooling Water Intake 
Structures?
    B. How is Section 316(b) of the CWA Being Implemented Now?
V. Scope and Applicability of the Proposed Rule
    A. Who Is Covered Under This Proposed Rule?
    B. What Is a ``New Facility''?
    C. What Is a ``Cooling Water Intake Structure''?
    D. Must My Facility Withdraw Water from Waters of the U.S.?
    E. Must My Facility Have a Point Source Discharge Subject to an 
NPDES Permit?
VI. Data Collection and Overview of Industries Potentially Subject 
to Proposed Rule
    A. Overview
    B. New Steam Electric Generating Facilities
    C. New Manufacturing Facilities
VII. Environmental Impact Associated with Cooling Water Intake 
Structure
    A. Overview
    B. What Types of Environmental Impacts Are Caused by Cooling 
Water Intake Structures?
    C. What Entrainment and Impingement Impacts Caused by Cooling 
Water Intake Structures Have Been Documented?
    D. What Constitutes Adverse Environmental Impact Under This 
Proposed Rule?
VIII. Best Technology Available for Minimizing Adverse Environmental 
Impact at New Facilities
    A. What Is the Best Technology Available for Minimizing Adverse 
Environmental Impact at New Facilities?
    1. What Are the Proposed and Alternative Regulatory Frameworks 
for Today's Proposed Rule?
    2. Location
    3. Flow and Volume
    4. Velocity
    5. Additional Design and Construction Technologies
    6. What is the Role of Restoration Measures?
    7. Additional and Alternative BTA Requirements
    8. Other Approaches Being Considered by EPA
    B. What Technologies Can Be Used to Meet the Regulatory 
Requirements?
    1. Intake Screen Systems
    2. Passive Intake Systems (Physical Exclusion Devices)
    3. Diversion or Avoidance Systems
    4. Fish-Handling Systems and Other Technologies
    C. How Is Cost Being Considered in Establishing BTA for New 
Facilities?
IX. Implementation
    A. What Information Must I Submit to the Director When I Apply 
for My New or Reissued NPDES Permit?
    1. Source Water Baseline Biological Characterization Data
    2. Source Water Physical Data
    3. Cooling Water Intake Structure Velocity and Flow Data
    4. Data to Show Compliance with the Flow Requirements, Velocity 
Requirement, Flow Reduction Requirement, and Additional Design and 
Construction Technology Requirement
    5. Data to Support A Request for Alternative Requirements
    B. How Would the Director Determine the Appropriate Cooling 
Water Intake Structure Requirements?
    C. What Would I Be Required to Monitor?
    D. How Would Compliance Be Determined?
    E. What Are the Respective Federal, State, and Tribal Roles?
    F. Are Permits for New Facilities Subject to Requirements Under 
Other Federal Statutes?
X. Cost/Benefit Analysis
    A. Cost
    1. Electric Generation Sector
    2. Manufacturing Sector
    3. Cost Impacts
    4. Cost Impacts of Other Alternatives
    B. Discussion of Cooling Water Intake Structure Impacts and 
Potential Benefits
XI. Administrative Requirements
    A. Paperwork Reduction Act
    B. Unfunded Mandates Reform Act
    C. Regulatory Flexibility Act (RFA) as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
    1. Electric Generation Sector
    2. Manufacturing Sector
    D. Executive Order 12866: Regulatory Planning and Review
    E. Executive Order 13132: Federalism
    F. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13084: Consultation and Coordination With 
Indian Tribal Governments
    I. National Technology Transfer and Advancement Act
    J. Plain Language Directive
    K. Executive Order 13158: Marine Protected Areas
XII. Solicitation of Comments and Data
    A. Specific Solicitation of Comment and Data
    B. General Solicitation of Comment

I. Legal Authority

    Today's proposed rule is issued under the authority of sections 
301, 306, 308, 316, 402, and 501 of the Clean Water Act (CWA), 33 
U.S.C. 1311, 1316, 1318, 1326, 1342, and 1361. This proposal partially 
fulfills the obligations of the U.S. Environmental Protection Agency 
(EPA) under a Consent Decree in Cronin v. Browner, United States 
District Court, Southern District of New York, No. 93 Civ 0314 (AGS).

II. Purpose and Summary of Proposed Regulation

A. What Is the Purpose of Today's Proposed 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 for minimizing adverse environmental impact. Today's proposal 
would define a cooling water intake structure as the total physical 
structure and any associated constructed waterways used to withdraw 
water from waters of the U.S., provided that at least twenty-five (25) 
percent of the water withdrawn is used for cooling purposes. Cooling 
water absorbs waste heat rejected from processes employed or from 
auxiliary operations on a facility's premises. Single cooling water 
intake structures might have multiple intake bays. Today's proposed 
rule would establish requirements applicable to the location, design, 
construction, and capacity of cooling water intake structures at new 
facilities. The proposal seeks to minimize the adverse environmental 
impact associated with the use of these structures.
    Today's proposed rule partially fulfills EPA's obligation to comply 
with a Consent Decree entered in the United States District Court, 
Southern District of New York in Cronin v. Browner, No. 93 Civ. 0314 
(AGS), a case brought against EPA by a coalition of individuals and 
environmental groups. The Consent Decree as entered on October 10, 
1995, provided that EPA propose regulations implementing section 316(b) 
by July 2, 1999, and take final action with respect to those 
regulations by August 13, 2001. EPA later moved to amend the Consent 
Decree by bifurcating the rule into two phases--Phase I addressing new 
facilities and Phase II addressing existing facilities--and extending 
the deadlines for proposal and final action. Plaintiffs opposed EPA's 
motion for an extension of the deadlines. On March 27, 2000, the Court 
amended the Consent Decree to provide among other things that EPA 
propose regulations addressing new facilities on or before July 20, 
2000, and propose regulations addressing existing facilities on or 
before July 20, 2001. The Court declined

[[Page 49063]]

to specify deadlines for final action with respect to regulations 
addressing new and existing facilities, stating that the parties should 
attempt to reach an agreement with respect to the deadlines in the 
Consent Decree. Today's proposal fulfills EPA's obligation under the 
Consent Decree to propose regulations addressing new facilities.
    This proposed rule would apply to new facilities that use cooling 
water intake structures to withdraw water from waters of the U.S. and 
that have or require a National Pollutant Discharge Elimination System 
(NPDES) permit issued under section 402 of the CWA. New facilities 
subject to this proposed regulation would be those with a design intake 
flow of greater than two (2) million gallons per day (MGD).
    If a new facility has or requires an NPDES permit and meets the 2 
MGD flow threshold, it is subject to today's proposed regulations. The 
proposal would define the term ``new facility'' as any building, 
structure, facility, or installation that meets the definition of ``new 
source'' or ``new discharger'' in 40 CFR 122.2 and 122.29(b)(1), (2), 
and (4); commences construction after the effective date of this rule; 
and has a new or modified cooling water intake structure that withdraws 
cooling water from waters of the U.S.
    Today's proposal would add language to EPA's NPDES permitting 
regulations at 40 CFR part 125, subpart I that establishes requirements 
applicable to cooling water intake structures for new facilities, and 
would reserve 40 CFR part 125, subpart J for requirements addressing 
existing facilities. Today's proposal also would amend EPA's 
regulations at 40 CFR 122.44(b)(3) to require the inclusion in EPA-
issued NPDES permits of requirements applicable to cooling water intake 
structures at new facilities, in accordance with part 125, subpart I 
and would amend EPA's regulations establishing requirements for 
authorized State NPDES programs by reinstating references to 40 CFR 
part 125, subparts I and J in 40 CFR 123.25(a)(36). This would have the 
effect of mandating that States have legal authority to implement final 
regulations addressing cooling water intake structures at new and 
existing facilities. Subpart I currently reads in its entirety, 
``Criteria Applicable to Cooling Water Intake Structures Under section 
316(b) of the Act [Reserved].'' Subpart J currently reads in its 
entirety, ``Reserved.'' References to part 125, subparts I and J were 
included in Sec. 123.25(a)(36) for many years. Recently, however, EPA's 
Amendments to Streamline the National Pollutant Discharge Elimination 
System Program Regulations: Round Two deleted the references to 
subparts I and J from 40 CFR 123.25(a)(36) along other with references 
to reserved subparts. 65 FR 30886, 30910 (May 15, 2000). Today's 
proposal would reinsert those references in light of the pending 
rulemaking proceedings addressing cooling water structures at new and 
existing facilities.
    Proposed section 125.80(c) makes clear that nothing in today's 
proposal would preclude or deny the authority of States, their 
political subdivisions, and interstate agencies under section 510 of 
the CWA. States retain authority under section 510 to adopt or enforce 
any requirement respecting the control or abatement of pollution that 
is more stringent than the minimum requirements established in a final 
rule based on this proposal. Section 502(19) of the CWA defines 
``pollution'' as including the man-made or man-induced alteration of 
the physical and biological integrity of water.
    Today's proposed rule would also add proposed regulatory language 
at 40 CFR 122.2(q) to require that the information required under 
proposed Sec. 125.86 regarding cooling water intake structure 
information and requests for alternative requirements under proposed 
Sec. 125.85 be submitted at the time of permit application. Finally, 
EPA proposes to amend the public notification requirements at 40 CFR 
124.10(d)(1) to require notification that a permit applicant is subject 
to the cooling water intake structure requirements of part 125 subpart 
I.

B. What Requirements Would Today's Proposed Regulation Establish? 

    At Sec. 125.84(a)-(e), today's proposed rule would establish 
national performance requirements for the location, design, 
construction, and capacity of cooling water intake structures at new 
facilities to minimize adverse environmental impact. Under the proposed 
rule, EPA would establish minimum national location, design, 
construction, and capacity requirements for minimizing adverse 
environmental impact from cooling water intake structures based on the 
placement of the intake structure and the water body type. EPA has 
grouped surface waters into four categories and is proposing separate 
requirements for cooling water intake structures in each category. 
These categories are based on the location of a facility's cooling 
water intake structure on or within (1) a freshwater river or stream, 
(2) a lake or reservoir, (3) an estuary or tidal river, or (4) an 
ocean. Proposed Sec. 125.84(f) provides that in certain circumstances 
Directors may impose additional site-specific requirements when in 
their judgment the national requirements are not sufficient to ensure 
that adverse environmental impact will be minimized. Section 125.84(g) 
would require the Director to impose any more stringent requirements 
needed to ensure attainment of water quality standards. Finally, 
Sec. 125.85 would allow any interested person to request that the 
Director impose alternative best technology available (BTA) 
requirements by demonstrating that compliance with the requirements 
would result in compliance costs wholly out of proportion to the costs 
EPA considered in establishing the national standards proposed at 
Sec. 125.84(a)-(e). The term ``Director'' means the State or Tribal 
Director where there is an approved NPDES State or Tribal program and 
means the Regional Administrator where EPA administers the NPDES 
program in the State. See 40 CFR 122.2.

C. How Does Today's Proposed Regulation Affect New Facilities Built 
Before Today's Proposal Is Finalized and Existing Facilities Subject to 
Section 316(b)?

    In 1977 EPA issued draft guidance for determining the best 
technology available to minimize adverse environmental impact from 
cooling water intake structures. In the absence of section 316(b) 
regulations or final guidance, the 1977 draft guidance has served as 
applicable guidance for section 316(b) determinations. See Draft 
Guidance for Evaluating the Adverse Impact of Cooling Water Intake 
Structures on the Aquatic Environment: Section 316(b) P.L. 92-500 (U.S. 
EPA, 1977). Administrative determinations in several permit proceedings 
also have served as de facto guidance.
    Today, EPA proposes a national framework that would establish 
certain minimum requirements for the design, capacity, and construction 
of cooling water intake structures for new facilities based on the 
location of a cooling water intake structure in four categories of 
water bodies. In doing so, the Agency is proposing to revise the 
approach adopted in the 1977 draft guidance which was based on the 
judgment that ``[t]he decision as to best technology available for 
intake design location, construction, and capacity must be made on a 
case-by-case basis.'' Other important differences from the 1977 draft 
Guidance include today's proposed definition of a ``cooling water 
intake structure'' for new facilities. Today's proposal also would 
establish a cost test that is different from the

[[Page 49064]]

``wholly disproportionate'' test that has been in use since the 1970s 
(see section VIII C).
    Although EPA's judgment is that the requirements proposed today 
would best implement section 316(b) for new facilities, the Agency is 
also inviting comment on a broad array of other alternatives, 
including, for example, a framework under which Directors would 
continue to evaluate adverse environmental impact and determine the 
best technology available for minimizing such impact on a wholly site-
specific basis. Because the Agency is inviting comment on such a broad 
range of alternatives for potential promulgation, today's proposal is 
not intended as guidance for determining the best technology available 
to minimize the adverse environmental impact of cooling water intake 
structures at new facilities before the Agency promulgates final 
regulations based on today's proposal. In the interim, Directors should 
continue to make section 316(b) determinations, which may be more or 
less stringent than today's proposal, on a case-by-case basis applying 
best professional judgment.
    Today's proposal does not apply to existing facilities. Although 
EPA has not yet closely examined the costs of technology options at 
facilities, the Agency anticipates that existing facilities would have 
less flexibility in designing and locating their cooling water intake 
structures than new facilities and that existing facilities might incur 
higher costs to comply with the proposed requirements than new 
facilities would incur. For example, existing facilities might need to 
upgrade or modify existing intake structures and cooling water systems 
to meet today's proposed requirements, which might impose greater costs 
than use of the same technologies at a new facility. Retrofitting 
technologies at an existing facility might also require brief shutdown 
periods during which the facility would lose both production and 
revenues, and certain retrofits could decrease the thermal efficiency 
of an electric generating facility. Existing facilities also might have 
site limitations, such as lack of undeveloped space, that might make 
certain technologies infeasible. The Agency anticipates that at the 
time it promulgates final requirements for cooling water intake 
structures at new facilities, it will have made substantial progress in 
its analyses to support section 316(b) regulations for existing 
facilities employing cooling water intake structures. Upon promulgation 
of final regulations based on today's proposal, the Agency will address 
the extent to which the final new facility regulation and preamble 
should serve as guidance for developing section 316(b) requirements for 
existing facilities prior to the promulgation of the section 316(b) 
regulations for existing facilities.

III. Legal Background

A. The Clean Water Act

    The Federal Water Pollution Control Act, also known as the Clean 
Water Act (CWA), seeks to ``restore and maintain the chemical, 
physical, and biological integrity of the nation's waters.'' 33 U.S.C. 
section 1251(a). The CWA establishes a comprehensive regulatory 
program, key elements of which are (1) a prohibition on the discharge 
of pollutants from point sources to waters of the U.S., except as 
authorized by the statute; (2) authority for EPA or authorized States 
or Tribes to issue NPDES permits that regulate the discharge of 
pollutants; and (3) requirements for EPA to develop effluent 
limitations guidelines and standards and for States to develop water 
quality standards that are the basis for the pollutant discharge limits 
imposed in NPDES permits.
    Today's proposed rule implements section 316(b) of the CWA as it 
applies to new facilities. Section 316(b) addresses the adverse 
environmental impact caused by the intake of cooling water, not 
discharges into water. Despite this special focus, the requirements of 
section 316(b) are closely linked to several of the core elements of 
the NPDES permit program established under section 402 of the CWA to 
control discharges of pollutants into navigable waters. For example, 
section 316(b) applies to facilities that use a cooling water intake 
structure and have a point source discharge that is NPDES-permitted or 
requires an NPDES permit. Conditions implementing section 316(b) are 
included in NPDES permits and would continue to be included in NPDES 
permits under this proposed rule.
    Section 301 of the CWA prohibits the discharge of any pollutant by 
any person, except in compliance with specified statutory requirements. 
These requirements include compliance with technology-based effluent 
limitations guidelines and new source performance standards, water 
quality standards, NPDES permit requirements, and certain other 
requirements.
    Section 402 of the CWA provides authority for EPA or an authorized 
State or Tribe to issue an NPDES permit to any person discharging any 
pollutant from a point source into waters of the U.S. Forty-three 
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 through the 
imposition of effluent limitations and other permit conditions. 
Effluent limitations may be based on promulgated effluent limitations 
guidelines, new source performance standards, or the best professional 
judgment of the permit writer. Limitations based on these guidelines, 
standards, or best professional judgment are known as technology-based 
effluent limits. Where technology-based effluent limits are inadequate 
to ensure compliance with water quality standards applicable to the 
receiving water, more stringent effluent limits based on applicable 
water quality standards are imposed. NPDES permits also routinely 
include monitoring and reporting requirements, standard conditions, and 
special conditions.
    Sections 301, 304, and 306 of the CWA require that EPA develop 
technology-based effluent limitations guidelines and new source 
performance standards that are used as the basis for technology-based 
minimum discharge requirements in wastewater discharge permits. EPA 
issues these effluent limitations guidelines and standards for 
categories of industrial dischargers based on the pollutants of concern 
discharged by the industry, the degree of control that can be attained 
using various levels of pollution control technology, the economic 
achievability of meeting the level of control, and other factors 
identified in section 304 and 306 of the CWA. 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 405-471. Among these, EPA has established effluent 
limitations guidelines that apply to most of the industry categories 
that use cooling water intake structures (e.g., steam electric power 
generation, iron and steel manufacturing, pulp and paper, petroleum 
refining, chemical manufacturing).
    Section 306 of the CWA requires that EPA establish discharge 
standards for new sources. For purposes of section 306, new sources 
include any source that commenced construction after the promulgation 
of applicable new source performance standards, or after proposal of 
applicable standards of performance

[[Page 49065]]

if the standards are promulgated in accordance with section 306 within 
120 days of proposal. CWA section 306; 40 CFR 122.2. New source 
performance standards are similar to the technology-based limitations 
established for existing sources, except that new source performance 
standards are based on the best available demonstrated technology 
instead of the best available technology economically achievable. New 
facilities have the opportunity to install the best and most efficient 
production processes and wastewater treatment technologies. Therefore, 
Congress directed EPA to consider the best demonstrated process 
changes, in-plant controls, and end-of-process control and treatment 
technologies that reduce pollution to the maximum extent feasible. In 
addition, in establishing new source performance standards, EPA is 
required to take into consideration the cost of achieving the effluent 
reduction and any non-water quality environmental impact and energy 
requirements.

B. What Is Required Under Section 316 of the Clean Water Act?

    Section 316(b) seeks to minimize the adverse environmental impact 
associated with cooling water intake structures. Section 316(b) 
provides, ``Any standard established pursuant to [CWA section 301] or 
[CWA section 306] 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.''
    Congress included section 316 in the CWA for the express purpose of 
regulating thermal discharges and addressing the environmental impact 
of cooling water intake structures. Sections 316(a) and (c) provide for 
relief in certain circumstances from the thermal effluent standards 
applicable to point source discharges of pollutants. Section 316(b) 
does not focus on controlling the discharge of pollutants; rather, it 
addresses the environmental impact of cooling water intake structures. 
Section 316(b) is the only provision in the CWA that focuses 
exclusively on water intake.
    Today's proposal would establish requirements that focus on the 
location, design, construction, and capacity of cooling water intake 
structures at new facilities. For each of these features, today's 
proposed rule would establish minimum requirements that constitute the 
``best technology available for minimizing adverse environmental 
impact.'' EPA notes that ``best technology available'' (BTA) is a 
distinct standard under the CWA. Although it is technology-based and 
similar to the standards used in the development of effluent 
limitations guidelines (i.e., best available technology economically 
achievable), the BTA standard does not explicitly include any 
consideration of the costs of ensuring that cooling water intake 
structures reflect the best technology available, although based on 
legislative history EPA has long done so. In addition, the standards 
developed under section 316(b) focus on minimizing adverse 
environmental impact.
    Today's proposal also would define a cooling water intake structure 
as the total physical structure and any associated constructed 
waterways used to withdraw water from waters of the U.S., provided that 
at least twenty-five (25) percent of the water withdrawn is used for 
cooling purposes. New facilities subject to this proposed regulation 
would be those with a design intake flow of greater than two (2) 
million gallons per day (MGD).

IV. History

A. Have Prior EPA Regulations Addressed Cooling Water Intake 
Structures?

    In April 1976 EPA published a rule under section 316(b) that 
addressed cooling water intake structures. 41 FR 17387 (April 26, 
1976), proposed at 38 FR 34410 (December 13, 1973). The rule added a 
new Sec. 401.14 to 40 CFR Chapter I that reiterated the requirements of 
CWA section 316(b). It also added a new part 402, which included three 
sections: (1) Sec. 402.10 (Applicability); (2) Sec. 402.11 (Specialized 
definitions); and (3) Sec. 402.12 (Best technology available for 
cooling water intake structures). Section 402.10 stated that the 
provisions of part 402 applied to ``cooling water intake structures for 
point sources for which effluent limitations are established pursuant 
to section 301 or standards of performance are established pursuant to 
section 306 of the Act.'' Section 402.11 defined the terms ``cooling 
water intake structure,'' ``location,'' ``design,'' ``construction,'' 
``capacity,'' and ``Development Document.'' Section 402.12 included the 
following language:

    The information contained in the Development Document shall be 
considered in determining whether the location, design, construction 
and capacity of a cooling water intake structure of a point source 
subject to standards established under section 301 or 306 reflect 
the best technology available for minimizing adverse environmental 
impact.

    In 1977 fifty-eight electric utility companies challenged these 
regulations, arguing that EPA had failed to comply with the 
requirements of the Administrative Procedure Act (APA) in promulgating 
the rule. Specifically, the utilities urged that EPA had neither 
published the Development Document in the Federal Register nor properly 
incorporated the document into the rule by reference. The United States 
Court of Appeals for the Fourth Circuit agreed and, without reaching 
the merits of the regulations themselves, remanded the rule. 
Appalachian Power Co. v. Train, 566 F.2d 451 (4th Cir. 1977). EPA later 
withdrew part 402. 44 FR 32956 (June 7, 1979). 40 CFR 401.14 remains in 
effect.

B. How Is Section 316(b) of the CWA Being Implemented Now?

    Since the Fourth Circuit remanded EPA's section 316(b) regulations 
in 1977, decisions implementing section 316(b) have been made on a 
case-by-case, site-specific basis. EPA published guidance addressing 
section 316(b) implementation in 1977. See Draft Guidance for 
Evaluating the Adverse Impact of Cooling Water Intake Structures on the 
Aquatic Environment: Section 316(b) P.L. 92-500 (U.S. EPA, 1977). This 
guidance describes the studies recommended for evaluating the impact of 
cooling water intake structures on the aquatic environment, and it 
establishes a basis for determining the best technology available for 
minimizing adverse environmental impact. The 1977 Section 316(b) Draft 
Guidance states, ``The environmental-intake interactions in question 
are highly site-specific and the decision as to best technology 
available for intake design, location, construction, and capacity must 
be made on a case-by-case basis.'' (Section 316(b) Draft Guidance, U.S. 
EPA, 1977, p. 4). This case-by-case approach also is consistent with 
the approach described in the 1976 Development Document referenced in 
the remanded regulation.
    The 1977 Section 316(b) Draft Guidance suggests the general process 
for developing information needed to support section 316(b) decisions 
and presenting that information to the permitting authority. The 
process involves the development of a site-specific study of the 
environmental effects associated with each facility that uses one or 
more cooling water intake structures, as well as consideration of that 
study by the permitting authority in determining whether the facility 
must make any changes to minimize adverse environmental impact. Where 
adverse environmental impact is present, the 1977 Draft Guidance 
suggests a ``stepwise'' approach that considers screening systems, 
size, location, capacity, and other factors.

[[Page 49066]]

    Although the Draft Guidance describes the information that should 
be developed, key factors that should be considered, and a process for 
supporting section 316(b) determinations, it does not establish 
national standards based on the best technology available to minimize 
adverse environmental impact. Rather, the guidance leaves the decisions 
on the appropriate location, design, capacity, and construction of each 
facility to the permitting authority. Under this framework, the 
Director determines whether appropriate studies have been performed and 
whether a given facility has minimized adverse environmental impact.

V. Scope and Applicability of the Proposed Rule

A. Who Is Covered Under This Proposed Rule?

    Today's proposed rule would apply to you if you are the owner or 
operator of a facility that meets all of the following criteria:
     Your facility is a new facility;
     Your new facility has a cooling water intake structure or 
structures;
     Your new facility's cooling water intake structure(s) 
withdraw(s) water from waters of the U.S. and at least twenty-five (25) 
percent of the water withdrawn is used for contact or noncontact 
cooling purposes;
     Your new facility has a design intake flow of greater than 
two (2) million gallons per day (MGD); and
     Your new facility has an NPDES permit or is required to 
obtain one.

B. What Is a ``New Facility''?

    EPA is proposing to define the term ``new facility'' to mean any 
building, structure, facility or installation which
     Meets the definition of ``new source'' or ``new 
discharger'' in 40 CFR 122.2 and 122.29(b)(1), (2), and (4);
     Commences construction after the effective date of this 
rule; and
     Has a new or modified cooling water intake structure that 
withdraws water from waters of the U.S.
    This proposal covers 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. 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. A 
modified cooling water intake structure is one that has some part of 
the intake, including the pumps, changed, replaced, or expanded to 
accommodate, in whole or in part, a new facility's water usage. Routine 
maintenance and repair to an intake structure which is currently 
withdrawing cooling water and does not result in an increase in design 
capacity is not considered a modification. Facilities that meet the 
conditions of 40 CFR 122.29(b)(3) would be considered to be undergoing 
a modification and would not be considered a ``new facility'' under 
these regulations. Such facilities will be addressed during the 
forthcoming existing facility rulemaking.
    Examples of when a facility would be considered a new facility 
include, but are not limited to the following:
     Facility A is newly constructed on a property that has 
never been used for industrial or commercial activity, and a new 
cooling water intake structure is constructed for Facility A's use.
     Facility B, which produces widgets, is demolished and 
Facility C is constructed in its place. (Facility C might or might not 
produce widgets). Facility C uses the cooling water intake structure 
that Facility B used but modifies it in some way.
     Facility D is in commercial operation. Facility E, a 
separate and independent industrial operation, is constructed on the 
property that Facility D owns. The cooling water intake structure that 
Facility D uses is modified by constructing a new intake bay for 
Facility E's use.
    Modifications to an existing facility would not be covered under 
this proposed rule. Rather, such modifications will be addressed during 
the existing facility rulemaking. Examples of when a facility 
undergoing a change or modification would be considered an existing 
facility might include the following:
     Facility F is in commercial or industrial operation. 
Facility F modifies its facility and either continues to use the 
original cooling water intake structure or a new or modified cooling 
water intake structure.
     Facility G has an existing intake structure. Facility H, a 
separate and independent industrial operation, is constructed on the 
property that Facility G owns and connects to Facility G's cooling 
water intake structure behind the intake pumps. In this case, the 
cooling water intake structure has not been modified for Facility H's 
use. This would remain true even if routine maintenance or repairs were 
performed on the structure.
     Facility J is in commercial or industrial operation. 
Facility J adds a new process unit consistent with 40 CFR 122.29(b)(3) 
that is directed toward the same general activity (e.g., a new peaking 
unit at an electricity generation station) as facility J's existing 
operations. Facility J may or may not modify its intake structure to 
accommodate the new unit.
    Today's proposal would define a facility as new based on the date 
the facility commences construction within the meaning of 40 CFR 
122.29(b)(4). Under this approach, any facility that commences 
construction after the date on which the final rule is effective would 
have to comply with the new facility requirements. This approach to 
defining ``new facility'' is generally consistent with the definition 
of the terms ``new source'' and ``new discharger'' used in the NPDES 
permitting program (see 40 CFR 122.2 and 122.29), and it should provide 
adequate notice and time for the planning needed to implement the 
technological changes necessitated by the requirements.

C. What Is a ``Cooling Water Intake Structure''?

    At Sec. 125.83, EPA is proposing to define a ``cooling water intake 
structure'' as the total physical structure and any associated 
constructed waterways used to withdraw water from a water of the U.S., 
provided that at least twenty-five (25) percent of the water withdrawn 
is used for cooling purposes. The cooling water intake structure 
extends from the point at which water is withdrawn from the surface 
water source to the first intake pump or series of pumps. The intended 
use of the cooling water is to absorb waste heat rejected from 
processes employed or from auxiliary operations.
    This definition differs from the definition included in the 1977 
Draft Guidance. First, the proposed definition clarifies that the 
cooling water intake structure includes the physical structure and 
technologies that extend up to the first intake pump or series of 
pumps. This change is intended to define more clearly what EPA 
considers to constitute the cooling water intake structure. Second, the 
definition would apply to water being brought in for both contact and 
noncontact cooling purposes. This clarification is necessary because 
cooling water intake structures typically bring water into at a 
facility for numerous purposes, including industrial processes; use as 
circulating water, service water, or evaporative cooling tower makeup 
water; dilution of effluent heat content; equipment cooling; and air 
conditioning. Finally, the proposed definition includes intake 
structures if a facility uses twenty-five

[[Page 49067]]

(25) percent or more of the water drawn through the structure for 
cooling purposes. This also is a change from the current practice. (The 
1976 final rule and 1977 Draft Guidance definition of a ``cooling water 
intake structure'' included intake structures if a facility used the 
major portion of water drawn through the structure for cooling 
purposes. In practice, many permitting authorities have interpreted 
that definition to apply to intake structures if a facility uses more 
than 50 percent of the water drawn through the structure for cooling.)
    Based on experience since the late 1970s, the Agency included 
intake structures at new facilities in today's proposal if a facility 
uses twenty-five (25) percent or more of the withdrawn water for 
cooling purposes. It is well settled that section 316(b) applies to all 
categories of point sources. See United States Steel Corp. v. Train, 
556 F.2d 822, 849-50 (7th Cir. 1977). In practice, however, section 
316(b) has been implemented at few facilities other than steam electric 
generating plants, despite the fact that a number of other industries 
use significant amounts of cooling water. EPA chose twenty-five (25) 
percent as a reasonable threshold for the percent of flow used for 
cooling purposes in conjunction with the two MGD total flow threshold 
discussed at section V.D. below to ensure that almost all cooling water 
withdrawn from waters of the U.S. are addressed by the requirements in 
this proposal for minimizing adverse environmental impact. The Agency 
invites comment on this proposed approach to defining a cooling water 
intake structure. The Agency also invites comment on whether it should 
define a cooling water intake structure in a manner similar to the 1976 
final rule and 1977 draft guidance. If EPA implemented the latter 
approach, language such as the following would be included in proposed 
Sec. 125.83:

    Cooling water intake structure means the total structure used to 
direct water into the components of the cooling systems wherein the 
cooling function is designated to take place, provided that the 
intended use of the major portion of the water so directed is to 
absorb waste heat rejected from the process or processes employed or 
from auxiliary operations on the premises, including air 
conditioning.

    The Agency also invites comment on an alternative where the Agency 
would define a cooling water intake structure to include intake 
structures if a facility uses five percent or more of the water drawn 
through the structure for cooling purposes. This alternative would 
further ensure that almost all cooling water withdrawn from waters of 
the U.S. is addressed by the requirements of this national regulation. 
This alternative also might minimize any potential that the proposed 25 
percent threshold would discourage recycling of cooling water, or reuse 
of cooling water for process needs, by facilities that recycle or reuse 
cooling water at rates above 25 percent, and might choose to reduce 
their recycling/reuse rates to avoid meeting the requirements of the 
proposed rule. For similar reasons, the Agency is considering 
alternative definitions for a cooling water intake structure based on 
whether 20 percent, 15 percent, or 10 percent of the intake flow drawn 
through the structure is used for cooling. The Agency also invites 
comments on these alternative definitions.

D. Must My Facility Withdraw Water From Waters of the U.S.?

    The requirements proposed today would apply to cooling water intake 
structures that withdraw amounts of water greater than the proposed 
flow threshold from ``waters of the U.S.'' Waters of the U.S. include 
the broad range of surface waters that meet the regulatory definition 
at 40 CFR 122.2, which includes lakes, ponds, reservoirs, nontidal 
rivers or streams, tidal rivers, estuaries, fjords, oceans, bays, and 
coves. These potential sources of cooling water may be adversely 
affected by impingement and entrainment.
    Some facilities discharge heated water to cooling ponds, then 
withdraw water from the ponds for cooling purposes. Cooling ponds are 
considered ``waters of the U.S.'' if they meet the criteria in the 
definition of ``waters of the U.S.'' at 40 CFR 122.2. Therefore, 
facilities that withdraw cooling water from cooling ponds that are 
``waters of the U.S.'' and that meet today's other proposed criteria 
for coverage (including the requirement that the facility have or be 
required to obtain an NPDES permit) would be subject to today's 
proposed rule. EPA invites comment on the applicability of today's 
proposal to new facilities that withdraw water from cooling ponds that 
are considered ``waters of the U.S.''
    At Sec. 125.81, EPA is proposing that national BTA requirements 
would apply to new facilities that have a cooling water intake 
structure with a design intake capacity of greater than or equal to two 
(2) MGD of source water. EPA chose the two MGD threshold in conjunction 
with the proposed threshold discussed in the immediately preceding 
section, that would define a cooling water intake structure as any 
structure withdrawing water from a water of the U.S. if more than 
twenty-five (25) percent of the water withdrawn through the structure 
is used for cooling purposes. EPA estimates that the two MGD threshold 
would subject approximately 90 percent of all cooling water flows from 
new facilities to the proposed rule. EPA based this estimate on: (1) 
EPA's projected universe of new facilities that would be subject to the 
proposed rule; and (2) review of a limited set of data on percent of 
intake flow used for cooling that EPA drew from responses to the 
detailed questionnaires mailed to existing facilities in January 2000.
    EPA believes that cooling water intake structure withdrawals that 
are at or below a two MGD threshold would generally affect only a very 
small proportion of a water body or, if the water body is very small, 
would have a localized impact. EPA believes that facilities, which 
because of their small quantity of cooling water use, either are 
unlikely to cause or have limited potential to cause adverse 
environmental impact need not be subject to national regulation. This 
is especially so because the Agency has limited information on such 
facilities with respect to cooling water usage and their potential for 
adverse impact. The Director may consider whether to address new 
facilities that use lesser amounts of cooling water on a case-by-case 
basis using best professional judgment.
    In addition to a two MGD flow threshold, the Agency is considering 
higher flow thresholds including 5, 10, 15, 20, 25, and 30 MGD. To 
evaluate the amount of cooling water that would be covered under these 
alternative thresholds, EPA used data from its screener questionnaire 
sent to existing industries that use the largest amounts of cooling 
water and made a number of important assumptions. First, EPA assumed 
that new and existing facilities would use similar amounts of cooling 
water. The Agency notes this assumption may overestimate the percentage 
of flows at new electricity generating facilities that would be covered 
by the proposed rule as many of these facilities, if they intend to use 
waters of the U.S. for cooling, also intend to use technologies to 
minimize cooling water flow. For example, only three of the seven 
specific, planned electricity generating facilities for which EPA has 
information on cooling water system design would use more than 10 MGD. 
Second, EPA assumed that data in the screener survey on total intake 
flow could be used to represent cooling water flows. Finally, the 
Agency assumed that none of the facilities included in the screener 
survey used less than 25% of

[[Page 49068]]

their total intake flow for cooling. This last assumption should not 
affect statements about steam electric generating facilities as most of 
their intake flow is used for cooling. However, as manufacturing 
facilities in the screener survey may use significant amounts of 
process water, some portion of these facilities may not use 25% or more 
of their intake flow for cooling and, if they were new facilities, 
would not be within the scope of the proposed rule.
    For comparison purposes, EPA first analyzed a two MGD threshold and 
estimated that it would subject up to 99.97 percent of all cooling 
water flows from these industries to the proposed rule. On an industry-
specific basis, the percentage of flows covered by the rule would range 
from more than 99.99 percent in the electric utility industry to as 
much as 98 percent in the chemical industry.
    Using a similar methodology, EPA estimates that a 10 MGD flow 
threshold would subject up to 99.67 percent of all cooling water flows 
in the industries that use the largest volumes of cooling water to the 
proposed rule. On an industry-specific basis, the percentage of flows 
covered by the rule would range from 99.95 percent in the electric 
utility industry to as much as 79 percent in the refining industry. EPA 
estimates that a twenty-five (25) MGD threshold would subject up to 
99.1 percent of all cooling water flows from these industries to the 
proposed rule. On an industry-specific basis, the percentage of flows 
covered by the rule would range from 99.8 percent in the electric 
utility industry to as much as 65 percent in the chemical industry.
    The Agency invites comment on the proposed two MGD flow threshold 
and the alternative flow thresholds discussed above. The Agency also 
invites comment on whether a higher threshold (such as 25 MGD) might be 
appropriate for a facility that uses 10 percent or less of a water body 
at critical low flow periods.
    EPA is proposing to set the threshold at 2 MGD to ensure that 
almost all cooling water withdrawn from waters of the U.S. is covered 
by a national regulation. However, the Agency recognizes that there is 
little information currently available regarding the lower bound of 
withdrawals at which adverse environmental impact is likely to occur. 
Most case studies documenting impingement and entrainment from cooling 
water withdrawals in the past have focused on facilities withdrawing 
very large amounts of water (in most cases greater than 100 MGD). There 
is less information available on the impacts of withdrawals at any of 
the levels being considered for the MGD flow threshold. EPA is aware of 
impingement and entrainment studies at a facility in Michigan with a 20 
MGD flow. EPA also is aware of at least one study of impingement and 
entrainment at a facility in New York State that proposed to withdraw 
4.2 MGD. In this case, the Director estimated fish mortalities of 
24,500 American Shad, 1.9 million river herring, 1200 striped bass and 
23,000 white perch. The Agency invites commenters to provide any data 
they may have regarding impingement and entrainment rates associated 
with 2 MGD water withdrawals. The Agency also invites commenters to 
provide any data they may have regarding impingement and entrainment 
rates associated with an alternative flow threshold of 5 MGD. The 
Agency also invites commenters to provide any data they may have 
regarding impingement and entrainment rates associated with the 
alternative flow thresholds of 10 MGD, 15 MGD, 20 MGD, 25 MGD, and 30 
MGD.
    EPA invites comment on all aspects of using these proposed 
thresholds to establish the universe of facilities that would be 
subject to the BTA requirements of this proposed regulation.
    In addition to the MGD flow threshold discussed above, EPA is 
considering whether it should add a flow threshold to address the 
potential for adverse environmental impact posed by facilities that 
withdraw less than 2 million gallons of water per day but are located 
on smaller water bodies. To provide an additional measure of protection 
for these water bodies, the Agency might also include facilities that 
withdraw less than 2 MGD in this rulemaking if they withdraw more than 
1% of the mean annual flow of a freshwater river or stream; the mean 
annual volume of a lake or reservoir; or the volume of the water column 
within the area centered about the opening of the intake with a 
diameter defined by the distance of one tidal excursion at the mean low 
water level for an estuary or tidal river. If the Agency were to 
include this additional flow threshold, language such as the following 
would be added at the end of the proposed Sec. 125.81:

    Or a design intake flow of greater than one (1) percent of the 
waterbody flow or volume (the mean annual flow of a freshwater river 
or stream; the mean annual volume of a lake or reservoir; or the 
volume of the water column within the area centered about the 
opening of the intake with a diameter defined by the distance of one 
tidal excursion at the mean low water level for tidal rivers and an 
estuaries.

    The Agency invites comment on this alternative flow threshold. The 
Agency also invites comment on whether it should include a higher 
threshold based on a facility's withdrawal as a percentage of waterbody 
flow or volume, such as five percent, 10 percent or 20 percent.
    Should EPA decide to include a flow threshold based on a facility's 
withdrawal as a percentage of waterbody flow or volume, the Agency 
requests comment on whether it should establish an absolute minimum 
flow threshold (such as 50,000 or 100,000 gallons of waters of the U.S. 
used on a daily basis for cooling purposes) in conjunction with the one 
(1) percent of the water body flow or volume threshold described above. 
An absolute minimum gallon per day threshold could ensure that very 
small new facilities located on very small streams are not captured by 
the national regulation and, instead, are addressed by the Director, as 
appropriate, using best professional judgment on a case-by-case basis. 
If EPA added a minimum flow threshold to the part of the applicability 
criteria that relates to withdrawal of water by the facility, language 
such as the following would be added at the end of proposed 
Sec. 125.81, as modified by the alternate regulatory language described 
in the preceding paragraph: ``and greater than [100,000 gallons] per 
day.''

E. Must My Facility Have a Point Source Discharge Subject to an NPDES 
Permit?

    Today's proposed rule would apply only to new facilities as defined 
in Sec. 125.83 that have an NPDES permit or are required to obtain one 
because they discharge or might discharge pollutants, including storm 
water, from a point source to waters of the U.S. Requirements for 
minimizing the adverse environmental impact of cooling water intake 
structures would continue to be applied through NPDES permits.
    Based on the Agency's review of existing facilities that employ 
cooling water intake structures, the Agency anticipates that most new 
facilities that would be subject to this rule will control the intake 
structure that supplies them with cooling water and discharge some 
combination of their cooling water and wastewater and storm water to a 
water of the U.S. through a point source regulated by an NPDES permit. 
In this scenario, the requirements for the cooling water intake 
structure would be applied in the facility's NPDES permit. In the event

[[Page 49069]]

that a new facility's only NPDES permit is a general permit for storm 
water discharges, the Agency anticipates that the Director would write 
an individual NPDES permit containing requirements for the facility's 
cooling water intake structure. The Agency invites comment on this 
approach for applying cooling water intake structure requirements to 
the facility. Alternatively, requirements applicable to cooling water 
intake structures could be incorporated into general permits. The 
Agency also invites comment on this approach.
    In addition to the scenario described above, based on the Agency's 
review of existing facilities that employ cooling water intake 
structures, the Agency anticipates that some new facilities that have 
or are required to have an NPDES permit will not directly control the 
intake structure that supplies their facility with cooling water. For 
example, a number of facilities operated by separate entities might be 
located on the same, adjacent, or nearby property; one of these 
facilities might take in cooling water and then transfer it to other 
facilities prior to discharge of the cooling water to a water of the 
U.S. As another example, some facilities might use municipal water that 
is withdrawn from a water of the U.S. as their source for cooling 
water. The Agency invites comment on whether and how to prescribe 
section 316(b) requirements in these instances. In particular, the 
Agency invites comment on the proposal to regulate an intake structure 
if more than one-half of the flow serves new facilities and whether the 
threshold should be higher or lower. In addition, as in the previous 
paragraph, the Agency invites comment on a scenario in which the 
Director would place cooling water intake requirements in the new 
facility's NPDES permit and in the NPDES permit of the entity that 
controls the intake to ensure compliance with the cooling water intake 
requirements proposed today. This scenario is analogous to the Agency's 
finding of law in General Counsel Opinion No. 43 (June 11, 1976) that 
industrial users of a privately owned wastewater treatment plant are 
jointly and severally responsible for compliance with the provisions of 
the NPDES permit issued for the treatment plant. Alternatively, the 
Director could place cooling water intake requirements only in the 
permit of the facility that operates the structure. This would be 
administratively simpler and would limit permit requirements to the 
facility with direct operational control of the structure. The Agency 
also requests comment on this approach. If the new facility or the 
entity that controls the intake would have or be required to have only 
a general permit for storm water discharges, the Director would issue 
individual NPDES permit requirements, unless appropriate cooling water 
intake requirements were included in the general permit.
    Should the requirements proposed today apply to only new facilities 
that control their intake structure, the Agency recognizes the 
possibility that some new facilities that have or are required to have 
an NPDES permit might restructure their operations to place control of 
the cooling water intake structure in an entity separate from the new 
facility withdrawing water for cooling purposes. In these situations, 
the Agency proposes to examine the operation of the new facility and 
the cooling water intake structure together. Should the Agency 
determine that the structure would be within the scope of this proposed 
rule but for the fact that it is not directly controlled by the new 
facility using the water, the Agency is considering applying the new 
facility requirements to the cooling water intake structure. The Agency 
invites comment on the policy merits of this position and how the 
Agency should prescribe cooling water intake structure requirements in 
this scenario.
    Today's proposal applies only to facilities that are required to 
have an NPDES permit for direct discharges to surface waters. However, 
because similar adverse environmental impact can be caused by cooling 
water intake structures used by new facilities not subject to the NPDES 
program, the Agency encourages the Director to closely examine 
scenarios in which a new facility withdraws significant amounts of 
cooling water but does not have an NPDES permit. As appropriate, the 
Director should apply other legal requirements, such as section 404 or 
401 of the Clean Water Act, the Coastal Zone Management Act, the 
National Environmental Policy Act, or similar State authorities to 
address adverse environmental impact caused by cooling water intake 
structures at those new facilities.
    New facilities that EPA does not propose to regulate today, but 
that might cause similar impact, include the following:
     New facilities that withdraw cooling water from a water of 
the U.S. and discharge it along with other flows to a POTW for 
treatment and discharge;
     New facilities that purchase cooling water from a second 
facility that owns and operates the cooling water intake structure and 
withdraws the water from a water of the U.S. The new facility 
discharges the cooling water along with other flows to a POTW for 
treatment and discharge;
     New facilities that purchase cooling water from a 
municipal utility. The municipal utility owns and operates the cooling 
water intake structure and withdraws water from a water of the U.S. The 
new facility uses a significant amount of the municipal water for 
cooling purposes and discharges its cooling water to a POTW for 
treatment and discharge.
    The Agency's concern regarding the environmental impact caused by 
cooling water intake structures at new facilities that would not be 
regulated by today's proposal is tempered somewhat by the following 
considerations. In each of the three scenarios just described, cooling 
water discharges would be sent to a publically owned treatment works. 
Based on responses to the Agency's section 316(b) screener 
questionnaire, the Agency estimates that the average cooling water use 
by a large utility steam electric generating facility is approximately 
700 MGD; average water use by a large nonutility steam electric 
generating facility (i.e., a facility that owns electric generating 
capacity but typically sells its electricity to a utility for 
distribution) is approximately 85 MGD. In most circumstances, a POTW 
would not accept such large volumes of cooling water because the flows 
from these facilities would likely dilute the waste stream reaching the 
POTW to the point where the POTW could face significant difficulty 
meeting its secondary treatment standard requiring removal of a fixed 
percentage of incoming biological oxygen demand. POTWs also enforce 
pretreatment requirements to ensure that heat in wastewater discharged 
does not interfere with biological treatment processes. Such large 
volumes of cooling water could potentially be too hot for the POTW to 
accept. In the third scenario presented in the preceding paragraph, the 
cost of using water treated to meet drinking water standards as cooling 
water is an additional issue. (The Agency notes that some steam 
electric generating facilities do use treated municipal effluent for 
cooling water, a distinct practice that has the potential to reduce use 
of waters of the U.S. for cooling water.) For manufacturing facilities, 
the potential for indirect discharge of cooling water might be greater. 
For example, the pulp and paper industry is the largest industrial 
process water user in the United States. In 1990 EPA surveyed 565 mills 
that manufacture pulp, paper, and paperboard as part of the Agency's 
development of effluent limitation

[[Page 49070]]

guidelines for this industry. Of the 565 pulp mills, 203 (36 percent) 
discharge a total volume of 680 MGD indirectly to municipal treatment 
works.
    In order to address the potential concerns with cooling water 
intake by indirect dischargers, the Agency invites comment on an 
alternative where the Agency would regulate point sources that supply 
large volumes of cooling water to indirect dischargers (e.g., municipal 
utilities or other water suppliers) and place technology requirements 
to satisfy section 316(b) into the NPDES permit of the utility that 
controls the intake. The Agency is aware of the practical difficulties 
in requiring facilities that supply water to large numbers of customers 
to account for the specific end uses.

VI. Data Collection and Overview of Industries Potentially Subject 
to Proposed Rule

A. Overview

    As discussed above, today's proposed rule would apply to new 
facilities with cooling water intake structures as defined in 
Sec. 125.83 that are point sources requiring an NPDES permit. 
Generally, facilities that meet these criteria fall into two major 
groups, new steam electric generating facilities and new manufacturing 
facilities. These would include new facilities in the pulp and paper, 
chemical, petroleum, iron and steel, and aluminum manufacturing 
industries, which are known to be major users of cooling water.

B. New Steam Electric Generating Facilities

    To identify planned utility and nonutility electric generating 
facilities that could potentially be affected by the section 316(b) new 
facility regulation, EPA used the NEWGen database, developed by 
Resource Data International (RDI). This database provides facility-
level data on new power projects, including information on generating 
technology, plant capacity, electric interconnection, project status, 
date of initial commercial operation, and other operational details. 
The Agency evaluated each of the 466 facilities identified in the RDI 
database for the following criteria: ``new plant'' status, project 
status, location within the United States, plant type, anticipated date 
of initial commercial operation, and availability of cooling water 
intake structure information.
    EPA's review identified 305 proposed new utility and nonutility 
electric generating facilities in the United States. Of these, 188 
facilities will generate electricity using steam turbine or combined-
cycle prime movers and would be potentially subject to regulation under 
section 316(b). (The term ``prime mover'' refers to the primary 
mechanism used by a facility to produce electricity.) To conduct 
various analyses required by statute and executive order (e.g., 
Executive Order 12866), EPA examined facilities with a projected 
operational date of August 13, 2001, or later as potential new 
facilities that would be subject to this proposal. Ninety-four 
facilities meet this criterion. Fifty-six of the ninety-four facilities 
had reported information on their planned source and volume of cooling 
water to their permitting authorities. EPA based the analyses in 
support of this proposed regulation partially on those 56 facilities.
    Eighty-eight percent of the 56 facilities examined plan to use 
combined-cycle \1\ prime movers to generate electricity. Combined-
cycle/cogeneration facilities are the second most common type of new 
facility, representing approximately 5 percent of the analyzed new 
facilities. In total, combined-cycle facilities represent more than 91 
percent of the new capacity. The 56 facilities EPA identified will 
account for a total of 40,500 megawatts of additional generation 
capacity. On the basis of the capacity of these sample facilities and 
the total electric generation capacity forecasted by the Energy 
Information Administration (EIA), EPA predicts that 13 new facilities 
that will incur costs under this proposed regulation will be built over 
the next 10 years. For the period 2011 to 2020, EPA estimates that an 
additional 103 new facilities would be built but only 27 of these 
facilities would be in scope of today's proposed rule.
---------------------------------------------------------------------------

    \1\ Most of the electricity in the United States is produced by 
steam turbine generating units. A combined-cycle facility uses both 
a combustion turbine prime mover and a steam turbine prime mover to 
increase the efficiency of the generating unit.
---------------------------------------------------------------------------

    EPA further analyzed all 56 potential facilities to determine 
whether they would qualify as ``new facilities'' subject to this 
regulation as defined in Sec. 125.83. Of the 56 facilities for which 
the source and volume of cooling water could be determined, only seven 
meet all of the proposed criteria for new facilities that are within 
the scope of this proposed regulation. Of these seven, one facility is 
proposing to locate a cooling water intake structure in a tidal river, 
four in nontidal rivers, and two in lakes. The remaining 49 facilities 
will either not withdraw cooling water from waters of the U.S. (45 
facilities), will use cooling water withdrawn through an existing 
intake structure (three facilities), or are not expected to require an 
NPDES permit (one facility). These 49 facilities therefore would not be 
subject to the proposed section 316(b) new facility regulation. Forty-
one of the 45 facilities that will not withdraw cooling water from a 
surface water source (approximately 91 percent) will use municipal 
water, ground water, or treated effluent, or a combination of the 
three, as a source of cooling water. The remaining four facilities are 
not expected to have a cooling water intake structure because they are 
air cooled. Based on the seven facilities that would be affected from 
the sample of 56 facilities and the Energy Information Administration 
forecast of total steam electric generation capacity additions, EPA 
projects 13 facilities would be affected over the next 10 years and an 
additional 27 facilities over the following 10 years. Therefore, the 
Agency's cost and regulatory impact analyses for the utility and non-
utility electricity-producing industries focused on 40 electricity 
generating facilities over 20 years.

C. New Manufacturing Facilities

    EPA identified prospective new facilities in the other industry 
sectors affected by today's proposed rule through a consultation 
process with the respective associations for those industries, review 
of independent market analyses, and projections based on the Section 
316(b) Industry Screener Questionnaire: Phase I Cooling Water Intake 
Structures. EPA contacted the following industry associations: American 
Forest and Paper Association, American Petroleum Institute, National 
Petrochemical Refiners Association, American Iron and Steel Institute, 
Steel Manufacturers Association, Specialty Steel Industry of North 
America, the Aluminum Association of America, and the Chemical 
Manufacturers Association. The Agency questioned each of the 
associations about growth in its industry, including projections about 
construction of new facilities. EPA also reviewed independent forecasts 
for the major industry sectors likely to be affected by today's 
proposed rule to assess the number of new facilities likely to be built 
in the foreseeable future. Finally, EPA estimated the number of new 
manufacturing facilities likely to be within the scope of today's rule 
based on preliminary data addressing existing facilities.
    EPA estimates that approximately 70 new manufacturing facilities 
that would be subject to today's proposed rulemaking will be built over 
the next 20 years (2001 to 2020). This number is

[[Page 49071]]

generally consistent with the data EPA reviewed through industry 
consultations and forecast reviews.
    The American Forest and Paper Association (AF&PA) reported the 
possibility of one new facility being built in the next few years. In 
addition, AF&PA indicated that a second new facility is under 
consideration. These are the only prospective new facilities in the 
pulp and paper industry. AF&PA reports that paper production in the 
United States has been declining and that if additional production is 
required, it will most likely come from expansion or full utilization 
of existing facilities. Review of independent industry projections 
supports AF&PA's information. EPA is projecting that no new facilities 
in the pulp and paper industry will be built in the next 20 years that 
would be within the scope of this rule. EPA requests comment on this 
projection and any relevant data commenters may have.
    In the United States, steel is typically produced by either large 
integrated mills that convert iron ore into steel or by minimills that 
employ an electric arc furnace (EAF) process to fabricate scrap steel 
into new product. The American Iron and Steel Institute (AI&SI) 
represents primarily the integrated steel producers, and the Steel 
Manufacturers Association (SMA) represents chiefly the minimills. These 
associations report that there has been a significant expansion in the 
number of new minimills in the past few years but that much of the 
immediate expansion is over. A limited number of new minimills will 
come on line in the foreseeable future, but new integrated mills are 
unlikely to be built. Agency review of independent industry projections 
supports this assessment. According to these projections, new 
steelmaking capacity soon will result mostly from new minimills coming 
on line. This is in keeping with long-term industry trends: the EAF 
share of the U.S. steel market has risen from 12 percent to 50 percent 
in the past three decades. Although minimills generally require large 
amounts of cooling water, they typically use closed-cycle recirculating 
systems with cooling towers. Production increases by integrated 
producers will most likely occur as a result of capacity expansion or 
improved efficiencies at existing facilities rather than new 
construction of integrated mills. EPA estimates that eight new 
minimills, as well as one cold-rolled steel sheet strip and bar mill, 
that might incur costs under this proposed rule will be built over the 
next 20 years.
    The Aluminum Association of America (AAA) reports it is unlikely 
that new primary aluminum smelters will be built in the foreseeable 
future. The growth area in the aluminum industry is in secondary 
aluminum manufacturing--facilities that recycle aluminum rather than 
use aluminum ore. Review of independent aluminum industry projections 
reveals that significant growth in demand is expected soon, but it is 
not certain whether this demand will be met through construction of new 
facilities, expansion of existing plants, or increased capacity 
utilization at existing facilities. EPA estimates that four new 
aluminum facilities that might incur costs under this proposed rule 
will be built over the next 20 years.
    The majority of petroleum refiners are represented by two 
organizations, the American Petroleum Institute (API) and the National 
Petrochemical Refiners Association (NPRA). API represents many of the 
large refiners, and NPRA represents some large and many of the small 
refiners. Both organizations report that it is unlikely that a new 
refinery will be built in the foreseeable future and note that 
expansion of refinery capacity will occur exclusively through growth of 
existing facilities. Moreover, the number of refineries is declining 
and competitive pressures have led to consolidations and mergers in the 
petroleum industry. Review of independent industry projections supports 
this conclusion and shows that during the period between January 1990 
and January 1997, the number of operable refineries in the United 
States declined from 205 to 164. EPA estimates that no new facilities 
in the petroleum and coal products sector with costs under this 
regulation will be built over the next 20 years.
    The chemical industry is one of the more diverse industry sectors 
in the U.S. and includes the largest number of individual facilities of 
the industries subject to today's proposed rule. The Chemical 
Manufacturers Association (CMA) reports that there is likely to be 
little expansion or development of new facilities in the chemical 
industry in the near future. CMA expects that near term growth in 
industry output will occur through changes in product lines or 
expansion of existing facilities. Review of independent industry 
projections discloses that the near term picture is for considerable 
restructuring and consolidation with moderate growth in the number of 
new facilities for the longer term. However, because the chemical 
industry sector is so large, even moderate growth will result in the 
addition of a considerable number of facilities. Moreover, many of the 
new facilities are likely to be small businesses as CMA estimates that 
40 to 60 percent of its members are small businesses and the 
expectation is that this ratio will remain approximately the same. EPA 
expects that 56 new facilities in the chemical industry sectors that 
are subject to the requirements of this rule will be constructed within 
the next 20 years.
    EPA has estimated that the above industries (including the 
electricity generating industry) represent approximately 5,000 to 6,000 
existing facilities nationwide and are responsible for almost 99 
percent of all the cooling water use in the United States. Today's 
proposed rule would also affect other industry sectors, including 
textile mill products; lumber and wood products; rubber and 
miscellaneous plastic products; stone, clay, glass, and concrete 
products; and transportation equipment. EPA did not undertake outreach 
to or survey these industry sectors in part because the Agency has 
determined that all these other industries, although constituting a 
large number of individual facilities, in aggregate withdraw 
approximately 1 percent or less of all cooling water used in the United 
States. As a result, even if there is a substantial increase in the 
number of new facilities in these industry sectors, EPA projects that 
few would be subject to today's proposed rule. Based on the Engineering 
and Economic Analysis document that EPA prepared while developing this 
proposal, EPA projects it is unlikely that there will be new facilities 
in any sectors other than electricity generation, primary metals, and 
chemicals that would be subject to the requirements of this rule over 
the next 20 years. EPA requests comment on this projection and any 
relevant data commenters may be able to provide.

VII. Environmental Impact Associated With Cooling Water Intake 
Structure

A. Overview

    Based on estimates cited in the record for the Agency's previous 
section 316(b) regulations and guidance, power plants and industrial 
facilities in the United States withdrew approximately 70 trillion 
gallons of water from U.S. waters each year for cooling water purposes. 
Power plants alone account for approximately 80 percent of the total 
cooling water withdrawals, or about 60 trillion gallons of cooling 
water per year.\2\ The withdrawal of such large

[[Page 49072]]

quantities of cooling water affects vast quantities of aquatic 
organisms annually, including phytoplankton,\3\ zooplankton,\4\ fish, 
shellfish, and many other forms of aquatic life. Aquatic organisms 
drawn into cooling water intake structures are either impinged on 
components of the cooling water intake structure or entrained in the 
cooling water system itself. In either case, a substantial number of 
these organisms are killed or subjected to significant harm as a 
result.
---------------------------------------------------------------------------

    \2\ EPA anticipates updating these water usage estimates based 
on its survey questionnaire of industrial facilities potentially 
subject to the section 316(b) regulation for existing facilities.
    \3\ Phytoplankton are tiny, free-floating photosynthetic 
organisms suspended in the water column.
    \4\ Zooplankton are small marine animals that consume 
phytoplankton and other zooplankton. Ichthyoplankton is a group of 
plankton composed of fish eggs and larvae.
---------------------------------------------------------------------------

    Currently, many cooling water intake structures use some type of 
intake control technology. In most cases these technologies prevent 
debris from entering the cooling water system but do not protect 
aquatic organisms. The most common intake devices used in the steam 
electric generating industry, as well as other industries, are front-
end trash racks (generally fixed bars) to prevent large debris from 
entering the system, followed by single-entry, single-exit vertical 
traveling screens (conventional traveling screens). It is also 
noteworthy, however, that between 1955 and 1997 the number of new steam 
electric generating facilities using closed-cycle recirculating cooling 
water systems increased from 25 percent to 75 percent, with a 
corresponding decrease in facilities using once-through systems.\5\ 
Between 1975 and 1984 the number of steam electric generating 
facilities using closed-cycle recirculating systems increased 31 
percent. This trend toward the use of closed-cycle recirculating 
systems is projected to continue as new facilities are built. Of the 
seven new generating facilities that would potentially be covered by 
this proposed rule and for which EPA has planning information, all 
seven plan to use closed-cycle recirculating cooling water systems. 
There is also evidence of a trend among new facilities to use less 
cooling water. All of the seven new facilities in EPA's analysis are 
projected to use less than 20 MGD.
---------------------------------------------------------------------------

    \5\ EPA estimates that 84 percent of existing steam electric 
generating facilities started operation between 1955 and 1985. An 
additional 7 percent of these facilities started operation between 
1985 and 1997.
---------------------------------------------------------------------------

B. What Types of Environmental Impacts Are Caused by Cooling Water 
Intake Structures?

    EPA's May 1977 Draft Guidance for Evaluating the Adverse Impact of 
Cooling Water Intake Structures on the Aquatic Environment describes 
two primary ways in which cooling water intake structures can cause 
adverse environmental impact. The first is entrainment, which occurs 
when organisms are drawn through the cooling water intake structure 
into the cooling system. Organisms that become entrained are normally 
relatively small benthic,\6\ planktonic,\7\ and nektonic \8\ forms of 
fish and shellfish species. As entrained organisms pass through a 
plant's cooling system they are subject to mechanical, thermal, and 
toxic stress. Sources of such stress include physical impacts in the 
pumps and condenser tubing, pressure changes caused by diversion of the 
cooling water into the plant or by the hydraulic effects of the 
condensers, sheer stress, thermal shock in the condenser and discharge 
tunnel, and chemical toxemia induced by antifouling agents such as 
chlorine. The mortality rate of entrained organisms is high.
---------------------------------------------------------------------------

    \6\ Refers to bottom dwellers that are generally small and 
sessile (non-swimming), but can include certain large motile (able 
to swim) species. These species can be important members of the food 
chain.
    \7\ Refers to free floating microscoic plants and animals, 
including fish eggs and larval stages with limited ability to swim. 
Plankton are also an important source of food for other aquatic 
organisms and an essential components of the food chain in aquatic 
ecosystems.
    \8\ Refers to organisms with swimming abilities that permit them 
to move actively through the water column and to move against 
currents.
---------------------------------------------------------------------------

    Another way in which intakes affect aquatic life is through the 
impingement of fish and other aquatic organisms on devices installed on 
the cooling water intake structure to prevent debris from entering the 
facility's cooling system. Organisms are trapped against these 
screening devices by the force of the water passing through the cooling 
water intake structure. Impingement can result in starvation and 
exhaustion (when organisms are trapped against an intake screen or 
other barrier at the entrance to the cooling water intake structure), 
asphyxiation (when organisms are forced against an intake screen or 
other barrier at the entrance to the cooling water intake structure by 
velocity forces that prevent proper gill movement or when organisms are 
removed from the water for prolonged periods of time), and descaling 
(when organisms are removed from an intake screen by a wash system).
    In addition to impingement and entrainment losses associated with 
the operation of the cooling water intake structure, EPA is concerned 
about the overall degradation of the aquatic environment as a 
consequence of multiple intake structures operating in the same 
watershed or in the same reach or nearby reaches. EPA is also concerned 
about the potential impacts of cooling water intake structures located 
in or near habitat areas that support threatened or endangered species. 
Although limited data document the extent to which threatened or 
endangered species are harmed or killed due to impingement or 
entrainment, such impacts do occur. For example, EPA is aware that over 
a 9-year period more than 1,300 endangered sea turtles entered enclosed 
cooling water intake structure canals at one power plant \9\ and that 
other plants impinge and entrain threatened delta smelt and endangered 
runs of chinook salmon and steelhead trout.\10\
---------------------------------------------------------------------------

    \9\ The plant developed a capture-and-release program in 
response to these events. Most entrapped turtles were captured and 
released alive; however, some mortality has occurred.
    \10\ For example, Pittsburg and Contra Costa in the San 
Francisco Bay Delta area of California.
---------------------------------------------------------------------------

    Furthermore, EPA is concerned about adverse environmental impact 
associated with the construction of new cooling water intake 
structures. Such adverse impacts primarily result from three factors--
displacement of populations and habitat resulting from the physical 
placement of a new cooling waste intake structure in an aquatic 
environment, the impact on the aquatic environment of increased levels 
of turbidity, and the effects on aquatic biota and habitat associated 
with disposal of materials excavated during construction. Unlike 
operational impacts, adverse impact associated with construction need 
not be recurring in nature. Even where construction of a new cooling 
water intake structure takes a number of months, such construction 
could cause significant adverse impact. For example, the construction 
of a new intake structure could destroy or harm habitat value through 
the physical destruction or degradation of submerged lands or banks, or 
by stirring up sediments. Today's proposed rule includes requirements 
at Sec. 125.84(f) under which the Director could address these effects 
in certain circumstances. Moreover, existing programs, such as the CWA 
section 404 program and programs under State law, include requirements 
that address many of the environmental impact concerns associated with 
the construction of new intakes.

[[Page 49073]]

C. What Entrainment and Impingement Impacts Caused by Cooling Water 
Intake Structures Have Been Documented?

    Research of the available literature and section 316(b) 
demonstration studies obtained from NPDES permit files has identified 
numerous documented cases of impacts associated with impingement and 
entrainment and the subsequent effects of these actions on populations 
of aquatic organisms. For example, specific losses associated with 
individual steam electric generating facilities include 3 billion to 4 
billion larvae and postlarvae per year \11\; 23 tons of fish and 
shellfish of recreational, commercial, or forage value lost each year 
\12\; and 1 million fish lost during a 3-week study period.\13\ Several 
studies estimating the impact of entrainment on populations of key 
commercial or recreational fish have predicted declines in population 
size. Studies of entrainment at five Hudson River power plants 
predicted year-class reductions ranging from 6 percent to 79 percent 
depending on the fish species.\14\ A modeling effort looking at the 
impact of entrainment mortality on the population of a selected species 
in the Cape Fear estuarine system predicted a 15 to 35 percent 
reduction in the species' population.\15\
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    \11\ EPA, ``Brunswick Nuclear Steam Electric Generating Plant of 
Carolina Power and Light Company, Historical Summary and Review of 
Section 316(b) Issues,'' EPA Region IV, September 19, 1979.
    \12\ EPA, ``Findings and Determination under 33 U.S.C. Section 
1326, In the Matter of Florida Power Corporation Crystal River Power 
Plant Units 1, 2, and 3, NPDES Permit No. FL0000159,'' Environmental 
Protection Agency Region IV, December 2, 1986.
    \13\ Nancy J. Thurber, and David J. Jude, ``Impingement Losses 
at the D.C. Cook Nuclear Power Plant during 1975-1982 with a 
Discussion of Factors Responsible and Possible Impact on Local 
Populations,'' Special Report No. 115 of the Great Lakes Research 
Division, Great Lakes and Marine Waters Center, The University of 
Michigan, 1985.
    \14\ John Boreman and Phillip Goodyear, ``Estimates of 
Entrainment Mortality for Striped Bass and Other Fish Species 
Inhabiting the Hudson River Estuary,'' American Fisheries Society 
Monograph 4:152-160, 1988.
    \15\ EPA, Brunswick Nuclear Steam Electric Generating Plant of 
Carolina Power and Light Company, Historical Summary and Review of 
Section 316(b) Issues,'' Environmental Protection Agency Region IV, 
1979.
---------------------------------------------------------------------------

    The following are among other more recent documented examples of 
impacts occurring in existing facilities as a result of cooling water 
intake structures. Also see the discussion of the benefits of today's 
proposed rule in Section X.B.
    Brayton Point. PG&E Generating's Brayton Point plant (formerly 
owned by New England Power Company) is located in Mt. Hope Bay, in the 
northeastern reach of Narragansett Bay, Rhode Island. Due to problems 
with electric arcing caused by salt drift and lack of fresh water for 
the closed-cycle recirculating cooling water system, the company 
switched Unit 4 from a closed-cycle recirculating to a once-through 
cooling water system in 1985. The modification of Unit 4 resulted in a 
45 percent increase in cooling water intake flow at the plant. Studies 
designed to evaluate whether the cooling water intake structure was 
affecting fish species abundance trends found that Mt. Hope Bay 
experienced a progressively steady rate of decline in finfish species 
of recreational, commercial, and ecological importance.\16\ In 
contrast, species abundance trends were relatively stable in adjacent 
coastal areas and portions of Narragansett Bay that are not influenced 
by the cooling water intake structure. Further strengthening the 
evidence that the intake of cooling water was contributing to the 
documented declines was the finding that the rate of population decline 
increased substantially with the full implementation of the once-
through cooling mode for Unit 4. The modification of Unit 4 is 
estimated to have resulted in an 87 percent reduction in finfish 
abundance based on a time series-intervention model. These impacts were 
associated with both impingement and entrainment, as well as the 
thermal discharge of cooling water. Data indicate that annual 
entrainment at Brayton Point averages 4.9 billion tautog eggs, 0.86 
billion windowpane eggs, and 0.89 billion winter flounder larvae each 
year. Using adult equivalent analyses, the entrainment and impingement 
of fish eggs and larvae in 1994 translated to a loss of 30,885, 20,146, 
and 96,507 pounds of adult tautog, windowpane, and winter flounder, 
respectively.
---------------------------------------------------------------------------

    \16\ Mark Gibson, ``Comparison of Trends in the Finfish 
Assemblages of Mt. Hope Bay and Narragansett Bay in Relation to 
Operations of the New England Power Brayton Point Station,'' Rhode 
Island Division Fish and Wildlife, Marine Fisheries Office, June 
1995 and revised August 1996.
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    San Onofre Nuclear Generating Station. The San Onofre Nuclear 
Generating Station (SONGS) is on the coastline of the Southern 
California Bight, approximately 2.5 miles southeast of San Clemente, 
California.\17\ The marine portions of Units 2 and 3, which are once-
through, open-cycle cooling systems, began commercial operation in 
August 1983 and April 1984, respectively. Since then, many studies have 
been completed to evaluate the impact of the SONGS facility on the 
marine environment.
---------------------------------------------------------------------------

    \17\ Southern California Edison, ``Report on 1987 Data: Marine 
Environmental Analysis and Interpretation, San Onofre Nuclear 
Generating Station,'' 1988.
    \18\ MRC, ``Final Report of the Marine Review Committee to the 
California Coastal Commission,'' Marine Review Committee, Document 
No. 89-02, August 1989.
---------------------------------------------------------------------------

    Studies of kelp beds in nearshore waters in the vicinity of the 
SONGS facility determined that the operation of cooling water intake 
structures resulted in a 60 percent (80-hectare) reduction in the area 
covered by moderate-to high-density kelp.\18\ Studies indicated that 
poor survival and lack of development of early life stages essential to 
the replenishment of the adult population resulted from increased 
turbidity of the waters in the vicinity of SONGS due to withdrawal of 
inshore turbid water for cooling purposes. The loss of kelp was also 
determined to be detrimental to fish communities associated with the 
kelp forests. For example, fish living close to the bottom of the San 
Onofre kelp bed experienced a 70 percent decline in abundance. Fish 
living in the water column in the impact areas had a 17 percent loss in 
abundance and a 33 percent decline in biomass relative to control 
populations. The abundance of large invertebrates in kelp beds also 
declined for many species, particularly snails.
    In a normal (non-El Nino) year, some 110 tons of midwater fish 
(primarily northern anchovy, queenfish, and white croaker) \19\ are 
entrained at SONGS, of which at least 41 percent are killed during 
plant passage. The fish lost include approximately 350,000 juveniles of 
white croaker, a popular sport fish; this number represents 33,000 
adult individuals or 3.5 tons of adult fish. Within 3 kilometers of 
SONGS, the density of queenfish and white croaker in shallow-water 
samples decreased by 34 and 63 percent, respectively. Queenfish 
declined by 50 to 70 percent in deepwater samples.
---------------------------------------------------------------------------

    \19\ S. Swarbrick and R.F. Ambrose, ``Technical Report C: 
Entrapment of Juvenile and Adult Fish at SONGS,'' prepared for the 
Marine Review Committee, 1989.
---------------------------------------------------------------------------

    Existing and historical studies like those described in this 
section provide only a partial picture of the severity of environmental 
impact associated with cooling water intake structures. Most important, 
the methodologies for evaluating adverse environmental impact used in 
the 1970s and 1980s, when most section 316(b) evaluations were 
performed, were often inconsistent and incomplete. For example, some 
studies reported only gross fish losses; others reported fish losses 
based on species and life stage; still others reported percent losses 
of the associated population or subpopulation (e.g.,

[[Page 49074]]

young-of-year fish). Recent advances in environmental assessment 
techniques now provide better tools to monitor for impingement and 
entrainment and to detect impacts associated with the operation of 
cooling water intake structures.

D. What Constitutes Adverse Environmental Impact Under This Proposed 
Rule?

    As discussed above, the 1977 section 316(b) draft guidance defined 
the term ``adverse environmental impact.'' It states that ``[a]dverse 
aquatic environmental impacts occur whenever there would be entrainment 
or impingement damage as a result of the operation of a specific 
cooling water intake structure.'' That definition also states, however, 
that ``[t]he critical question is the magnitude of any adverse 
impact.'' The guidance lists specific factors relevant for determining 
the long- and short-term magnitude of any adverse impacts.\20\ The 1977 
Draft Guidance established a process under which cooling water intake 
structures were evaluated on a case-by-case basis to determine the 
level of environmental impact occurring and the appropriate best 
technology available to minimize adverse environmental impact.\21\
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    \20\ Under the 1977 Draft Guidance, the magnitude of any adverse 
impact should be estimated in terms of both short-term and long-term 
impact with reference to the following factors: (1) Absolute damage; 
(2) percent damage; (3) absolute and percentage damage to any 
endangered species; (4) absolute and percent damage to any critical 
aquatic organism; (5) absolute and percentage damage to commercially 
valuable and/or sport fisheries yield; and (6) whether the impact 
would endager (jeaopardize) the protection and propagation of a 
balanced population of shellfish and fish in and on the body of 
water from which the cooling water is withdrawn (long-term impact). 
(Draft Guidance, U.S. EPA, 1977, Definitions and Concepts p. 15).
    \21\ For example, the 1977 Draft Guidance states ``[t]he exact 
point at which adverse aquatic impact occurs at any given plant site 
or water body segment is highly speculative and can only be 
estimated on a case-by-case basis by considering the species 
involved, magnitude of the losses, years of intake operation 
remaining, ability to reduce losses, etc.'' (Draft Guidance, U.S. 
EPA, 1977, p. 11).
---------------------------------------------------------------------------

    The framework and definitions in the 1977 Draft Guidance recommend 
that facilities should initially determine the incremental 
environmental impact of each cooling water intake structure on the 
populations of affected species or organisms and that BTA be applied 
only where it is determined that such incremental impacts are deemed to 
constitute ``adverse environmental impact.'' However, both the decision 
process and the evaluation criteria contained in the guidance have 
proven very difficult to apply consistently. The initial determination 
of environmental impact has often relied on population modeling, which, 
given its inherent complexity, has yielded ambiguous or debatable 
results. One result has been that many section 316(b) permitting 
decisions have predominantly focused on determining whether a cooling 
water intake structure is causing an adverse environmental impact. 
Given that both the methods for making such determinations and the 
standard regarding what constitutes an ``adverse'' environmental impact 
were not precisely defined, permitting authorities have had to exercise 
significant judgment and focus significant time and effort to determine 
what requirements should be imposed under section 316(b).
    In developing this proposal, EPA considered several alternatives 
for defining adverse environmental impact associated with the operation 
of cooling water intake structures. These alternatives are discussed 
below. EPA also considered whether a specific definition of adverse 
environmental impact should be included in the regulation or developed 
as guidance. The regulatory language in today's proposed rule does not 
include a definition of adverse environmental impact. However, the 
Agency is considering promulgating each of the alternatives discussed 
below as part of the final regulation and, thus, each should be viewed 
in a regulatory context. The Agency also might ultimately decide to 
publish one of these alternatives in guidance that supports the final 
rule. EPA is also considering taking no action regarding the definition 
of adverse environmental impact.
    Though EPA is not proposing a definition of adverse environmental 
impact, the Agency did consider a number of alternatives for either 
defining adverse environmental impact or determining a threshold for 
the level of environmental impact deemed to be adverse. Consistent with 
this approach, EPA conceptualized adverse environmental impact in a 
manner that would not characterize the threshold for being considered 
``adverse'' as the impingement or entrainment of a single organism, but 
also would not result in a threshold that is so high that it would 
allow for the impingement or entrainment of millions of organisms, 
larvae, or eggs. Thus, EPA considered adverse environmental impact as a 
level of impingement or entrainment of aquatic organisms that is 
recurring and nontrivial.
    One approach EPA considered would be to define adverse 
environmental impact as the impingement or entrainment of one (1) 
percent or more of the aquatic organisms in the near-field area as 
determined in a 1-year study. Under this approach, the near field would 
be defined as that area immediately around the intake structure from 
which organisms are drawn onto the screens or into the cooling system. 
EPA considers the establishment of a one percent threshold a reasonable 
means to protect about 99 percent of the organisms in the water column 
under the influence of the cooling water intake structures. A threshold 
of one percent represents a reasonable approach for defining adverse 
impact and is consistent with the approach used by the water quality-
based regulatory programs within EPA for developing the necessary 
levels of protection to safeguard aquatic communities. EPA seeks 
comment on this alternative. Regulatory language such as the following 
could be used to implement this approach:

    Adverse environmental impact means the impingement or 
entrainment of one (1) percent or more of the aquatic organisms from 
the area around the cooling water intake structure from which 
organisms are drawn onto screens or other barriers at the entrance 
to a cooling water intake structure or into the cooling system, as 
determined in the Source Water Baseline Biological Characterization.

(See Section IX.A.1 for a discussion of the Source Water Baseline 
Biological Characterization.)
    A second alternative for defining adverse environmental impact for 
purposes of section 316(b) would use the definition of adverse 
environmental impact provided in the 1977 Draft Guidance, which is 
discussed above. Under this approach, adverse environmental impact 
would be defined as impingement and entrainment and the key inquiry 
would be an assessment of the magnitude of such effects. EPA could 
clarify through guidance when the magnitude of environmental impact is 
great enough to be deemed adverse.
    Under a third alternative EPA is considering, adverse environmental 
impact would be deemed to occur whenever aquatic organisms are impinged 
or entrained as a result of the operation of a cooling water intake. 
Under this alternative, ``adverse environmental impact'' could be 
defined as ``any impingement or entrainment of aquatic organisms.'' 
This approach would be similar to the approach that the State of New 
York has taken in implementing its section 316(b) program, based on the 
State's judgment that both impingement and entrainment result in 
harmful environmental effects that diminish valuable public

[[Page 49075]]

resources.\22\ Such effects could have the potential to reduce the 
population of indigenous species; change the species mix because some 
species are more susceptible to impingement and entrainment than 
others; might increase nuisance species; harm and kill endangered and 
threatened species; damage critical aquatic organisms, including 
important elements of the food chain; and reduce commercial and sport 
fisheries. This approach also would provide a level of protection 
analogous to the level of protection provided by the Agency's criteria 
methodology for protecting aquatic life from toxic effects, 
particularly from acute lethality.23 24
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    \22\ NYDEC, ``Clean Water Act Section 316(b), statement provided 
to U.S. EPA at public meeting to discuss adverse environmental 
impacts resulting from cooling water intake structures,'' New York 
State Department of Environmental Conservation, Division of Fish, 
Wildlife, and Marine Resources, June 29, 1998.
    \23\ EPA, Technical Support Document for Water Quality-based 
Toxics Control, U.S. Environmental Protection Agency, Office of 
Water, EPA-823-B-94-005a, August 1994.
    \24\ Advanced Notice of Proposed Rulemaking: Water Quality 
Standards Program, 63 FR 3672, July 7, 1998.
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    Yet another alternative would be to define adverse environmental 
impact in relation to reference sites for the type of ecosystem in 
which the facility proposes to locate the intake structure and then to 
evaluate the projected impact of the intake structure on the abundance, 
diversity, and other important characteristics of the aquatic community 
that would be expected to inhabit the site. This approach would be 
analogous to the Agency's recommended approach for the adoption of 
biocriteria into State water quality 
standards.25 26 27 28 29 The Agency invites comment on 
implementation issues that might be associated with determining the 
nexus between the projected impacts of the cooling water intake 
structure and the reference conditions.
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    \25\ Michael T. Barbour et al., ``Measuring the attainment of 
biological integrity in the USA: a critical element of ecological 
integrity,'' Hydrobiologia 422/423:453-464, 2000.
    \26\ EPA, Biological Criteria: National Program Guidance for 
Surface Waters, U.S. Environmental Protection Agency, Office of 
Water Regulations and Standards, EPA-440/5-90-004, April 1990.
    \27\ EPA, Biological Criteria: Technical Guidance for Streams 
and Small Rivers, U.S. Environmental Protection Agency, Office of 
Water, EPA 822-B-96-001, May 1996.
    \28\ EPA, Lakes and Reservoir Bioassessment and Biocriteria: 
Technical Guidance Document, U.S. Environmental Protection Agency, 
Office of Water, EPA 841-B-98-007, August 1998.
    \29\ EPA, Draft Estuarine and Coastal Marine Waters 
Bioassessment and Biocriteria Technical Guidance, U.S. Environmental 
Protection Agency, Office of Water, July, 2000.
---------------------------------------------------------------------------

    The Agency also requests comment on a definition of adverse 
environmental impact that would focus on (1) the protection of 
threatened, endangered, or otherwise listed species; (2) protection of 
socially, recreationally, and commercially important species; and (3) 
protection of community integrity, including structure and function. 
EPA is aware that the Utility Water Action Group intends to develop, 
and submit to EPA following peer review, one or more practical 
definitions of adverse environmental impact and the measures for 
assessing when adverse environmental impact is occurring. The measures 
may vary depending on the waterbody type. EPA will consider the output 
of this effort, if available in time, and as appropriate, as it 
develops the final rule.
    Each of the preceding definitions of adverse environmental impact 
addresses impact on the aquatic environment. The Agency invites comment 
on whether it should define adverse environmental impact more broadly 
and consider nonaquatic adverse environmental impact as well. For 
example, some of the technologies that may be used to reduce 
impingement and entrainment may result in air emissions such as the 
drift of salts, other minerals or chemicals onto vegetation, 
potentially with harmful effects. Some technologies may reduce the 
efficiency of an electricity generating or manufacturing facility, 
potentially leading to increased energy consumption and increased 
emission of carbon dioxide or other ``greenhouse'' gases, and increased 
resource extraction activities that may have a harmful effect on lands 
and natural resources. Should the Agency decide to consider nonaquatic 
impact, it could do so in conjunction with any of the potential 
definitions of adverse environmental impact described above that 
address impact on the aquatic environment.
    Finally, it is important to clarify and invite comment on the 
Agency`s current interpretation of the relationship of adverse 
environmental impact under section 316(b) and the objective of section 
316(a) to ensure protection and propagation of a balanced indigenous 
population of shellfish, fish, and wildlife. The Agency considers the 
objective stated in section 316(b) to minimize adverse environmental 
impact from cooling water intake structures to be distinct from that of 
section 316(a) to ensure protection and propagation of a balanced 
indigenous population of shellfish, fish, and wildlife. The Agency has 
long maintained that adverse environmental impact from cooling water 
intake structures must be minimized to the fullest extent 
practicable,\30\ even in cases where it can be demonstrated that the 
standard applicable under section 316(a) is being met.31 32 
Thus the objective of section 316(b) is more protective than that of 
section 316(a). However, EPA also requests comment on adapting the 
section 316(a) standard for purposes of section 316(b) and defining 
adverse environmental impact as impacts likely to interfere with the 
protection and propagation of a balanced indigenous population of fish, 
shellfish, and wildlife.
---------------------------------------------------------------------------

    \30\ In re Brunswick Steam Electric Plant, Decision of the 
General Counsel No. 41, June 1, 1976.
    \31\ In re Public Service Co. of New Hampshire, (Seabrook 
Station Units 1 and 2) (Decision of the Administrator) 10 ERC 1257, 
1262 (June 17, 1977).
    \32\ In re Central Hudson Gas and Elec. Corp., Decision of the 
General Counsel No. 63, July 29, 1977.
---------------------------------------------------------------------------

    EPA invites comment on all aspects of these alternatives for 
defining adverse environmental impact associated with cooling water 
intake structures and whether such a definition should be included as 
part of the regulation or stated as guidance.

VIII. Best Technology Available for Minimizing Adverse 
Environmental Impact at New Facilities

A. What Is the Best Technology Available for Minimizing Adverse 
Environmental Impact at New Facilities?

1. What Are the Proposed and Alternative Regulatory Frameworks for 
Today`s Proposed Rule?
    Today`s proposed rule would establish national minimum performance 
requirements for the location, design, construction, and capacity of 
cooling water intake structures at new facilities to minimize adverse 
environmental impact. Under the proposed rule, EPA would establish 
requirements for minimizing adverse environmental impact from cooling 
water intake structures based on the type of water body in which the 
intake structure is located, the location of the intake in the water 
body, the volume of water withdrawn, and the design intake velocity. 
EPA would also establish additional requirements or measures for 
location, design, construction, or capacity that might be necessary to 
minimize adverse environmental impact. The best technology available to 
minimize adverse environmental impact might constitute a technology 
suite, which would vary depending on the type of water body in which a 
cooling water intake structure is located as well as the location of 
the cooling water

[[Page 49076]]

intake structure within the water body. Under this proposal, EPA would 
set technology-oriented performance requirements; the Agency would not 
mandate the use of any specific technology.
    Exhibit 1 displays the framework for EPA's proposed section 316(b) 
new facility rule. Previously, EPA solicited public comment on a three-
tiered framework for existing facilities. The framework proposed today 
for new facilities has evolved from Tier 1 of that framework. Under the 
proposed rule, EPA would group water bodies into four categories: (1) 
freshwater rivers or streams, (2) lakes or reservoirs, (3) tidal rivers 
or estuaries; and (4) oceans. The Agency considers location to be the 
most important factor in addressing adverse environmental impact caused 
by cooling water intake structures. Today's proposed rule would define 
the term ``freshwater river or stream'' to mean a lotic (free-flowing) 
system that does not receive significant inflows of water from oceans 
or bays due to tidal action (see Sec. 125.83). EPA proposes to define 
the term ``lake'' to mean 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 may 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 may be fed by 
rivers, streams, springs, and/or local precipitation.
BILLING CODE 6560-50-P

[[Page 49077]]

[GRAPHIC] [TIFF OMITTED] TP10AU00.000

BILLING CODE 6560-50-C

[[Page 49078]]

    EPA is proposing to define the term ``reservoir'' to mean a natural 
or constructed basin where water is collected and stored (see 
Sec. 125.83). Consistent with CWA section 104(n)(4), EPA is proposing 
to define the term ``estuary'' as all or part of the mouth of a river 
or stream or other body of water having unimpaired natural connection 
with open sea and within which seawater is measurably diluted with 
fresh water derived from land. As estuaries are strongly affected by 
tidal action, EPA's proposing to specify further that the salinity of 
an estuary exceeds 0.5 part per thousand (by mass), but is less than 30 
parts per thousand (by mass) (see Sec. 125.83). EPA is proposing to 
define the term ``tidal river'' to mean the most seaward reach of a 
river or stream where the salinity is less than or equal to 0.5 parts 
per thousand (by mass) at a time of annual low flow and whose a surface 
elevation responds to the effects of coastal lunar tides (see 
Sec. 125.83). Finally, EPA proposes to define the term ``ocean'' to 
mean marine open coastal waters with salinity greater than or equal to 
30 parts per thousand (by mass) (see Sec. 125.83).\33\ The Agency is 
not using the definition of ``ocean'' found at CWA 502(10) because that 
definition refers to the high seas beyond the contiguous zone and the 
marine environment within the contiguous zone. Impacts from cooling 
water intake structures are most likely to occur in ocean waters in the 
near coastal areas.
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    \33\ Salinity values are based on the Venice System, a well-
known estuarine zonation system. See EPA, Draft Estuarine and 
Coastal Marine Waters Bioassessment and Biocriteria Technical 
Guidance, U.S. Environmental Protection Agency, Office of Water, 
July, 2000.
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    The design and capacity of the intake structure are important 
factors that affect the velocity or speed at which the water passes 
through the screen or other barrier at the entrance to the cooling 
water intake structure.
    Under today's proposed rule, minimum flow and velocity requirements 
would be applied based on the actual placement of the cooling water 
intake structure within the particular water body types. Because 
different water body types have different potential for adverse 
environmental impact, the requirements proposed to minimize adverse 
environmental impact would vary by water body type. Some would include 
minimum requirements in addition to flow and velocity. For example, 
estuaries and tidal rivers have the highest potential for adverse 
impact because they contain essential habitat and nursery areas for 
many species. Therefore, these areas require the most stringent minimum 
controls including measures in addition to flow and velocity 
requirements. In contrast to estuaries and tidal rivers, some lakes 
have low productive areas such as the profundal zone, which would have 
low potential for adverse environmental impact, thus requiring lesser 
minimum controls to minimize adverse environmental impact.
    Under some scenarios, depending on the type of water body or where 
the intake structure is located within the water body, EPA is proposing 
to require additional design and construction technologies that would 
increase the survival rate of impinged biota or to further reduce the 
amount of entrained biota.
    In general, the capacity requirement would restrict the maximum 
flow a facility may withdraw to a percentage of the annual mean flow or 
volume of the water body. For rivers, an additional requirement would 
limit the capacity of the cooling water intake structure so that it 
withdraws no more than a certain percentage of the lowest average 
seven-consecutive-day low flow with an average frequency of once in 10 
years (7Q10). In some circumstances, EPA would also restrict the 
capacity of the cooling water intake structure to a level commensurate 
with that which could be attained by a closed-cycle recirculating 
system using minimized make-up and blowdown flows. After location, the 
flow or capacity of a cooling water intake structure is the primary 
factor affecting the entrainment of organisms, which is often 
considered the most difficult impact to control. Organisms entrained 
include small species of fish and immature life stages (eggs and 
larvae) of many species that lack sufficient mobility to move away from 
the area of the intake structure. Limiting the volume of the water 
withdrawn (flow) from a source can limit the potential for these 
organisms to be entrained.
    Section 316(b) authorizes EPA to impose limitations on the volume 
of the flow of water withdrawn through a cooling water intake structure 
as a means of addressing ``capacity.'' In re Brunswick Steam Electric 
Plant, Decision of the General Counsel No. 41 (June 1, 1976). Such 
limitations on the volume of flow are consistent with the dictionary 
definition of ``capacity'' \34\, the legislative history of the Clean 
Water Act \35\, and the 1976 regulations.\36\ Id. Indeed, as Decision 
of the General Counsel No. 41 points out, the major environmental 
impacts of cooling water intake structures are those affecting aquatic 
organisms living in the volumes of water withdrawn through the intake 
structure. Therefore, regulation of the volume of the flow of water 
withdrawn also advances the objectives of section 316(b).
---------------------------------------------------------------------------

    \34\ ``Cubic contents; volume; that which can be contained.'' 
Random House Dictionary of the English Language, cited in Decision 
of the General Counsel No. 41.
    \35\ Legislative History of the Water Pollution Control Act 
Amendments of 1972, 93d Cong., 1st Sess., at 196-7 (1973).
    \36\ 40 CFR 402.11(c) (definition of ``capacity''), 41 FR 17390 
(April 26, 1976).
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    Today's proposed rule would also establish requirements that 
address velocity. For most locations, a design intake velocity 
requirement would restrict the through-screen or through-technology 
velocity to 0.5 ft/s. Intake velocity is one of the key factors that 
affects the impingement of fish and other aquatic biota. Velocity is 
easily addressed during the design and construction phase of a cooling 
water intake structure. The appropriate design of the intake structure 
relative to intake flow can minimize velocity. Alternatively, the 
facility can install certain hard technologies (e.g., wedge wire 
screens and velocity caps) to change the configuration of the structure 
so that the effects of velocity on aquatic organisms are minimized. 
However, EPA is aware that some stakeholders have expressed concern 
with generally imposing national requirements on velocity and have 
argued that this may even restrict a facility's flexibility in 
designing an intake structure that minimizes adverse environmental 
impact while meeting the needs of the facility. EPA requests comment on 
its proposed velocity limitation of 0.5 fps, including information on 
specific situations or technologies for which this limit would pose a 
problem.
    When the intake structure is located within the littoral zone, EPA 
would broaden the suite of technologies a facility would be required to 
employ, as well as increase the stringency of the requirements. This 
would improve the survivability of impinged organisms and reduce the 
rate of entrained organisms, thus furthering the statutory objective of 
minimizing adverse environmental impact. In these situations the 
additional minimal controls are necessary to minimize adverse 
environmental impact because the littoral zone is generally the area 
where aquatic organisms are the most abundant and most susceptible to 
impingement and entrainment.

[[Page 49079]]

    Today's proposed rule would provide sound direction to permit 
writers that specifies minimum technology requirements, targeted to 
particular types of water bodies, for use in section 316(b) 
determinations. This would help the Directors implement consistent, 
protective decisions. The requirements proposed in today's proposed 
rule are protective on a national level. However, as further discussed 
at VIII.A.7., EPA recognizes that an individual facility might have a 
unique or site-specific environmental characteristic such that the 
national requirements might not achieve the objective of minimizing 
adverse environmental impact. For example, a migratory species 
traveling past a particular cooling water intake structure at a 
facility that does not cause adverse environmental impact in the 
absence of such migrations.
    It is the Agency's intent that permitting authorities familiar with 
the unique situation in their areas have the flexibility, on a case-by-
case basis, to implement additional measures under this proposal to 
achieve the core requirement of section 316(b), which is to minimize 
adverse environmental impact. Measures that the Agency deems 
appropriate would include, but not be limited to, seasonal flow 
restrictions that result in short term plant shutdowns during spawning 
or migration periods. Additional control measures also might be needed 
to address multiple intakes on a water body or the presence of 
regionally important species (e.g., commercially and recreationally 
valuable species or aquatic organisms ecologically significant to the 
structure and function of local aquatic communities). See proposed 
Sec. 125.84(f). In addition, consistent with existing NPDES program 
requirements, EPA also proposes that the Director must include permit 
requirements relating to the location, design, construction or capacity 
of a cooling water intake structure at a new facility necessary to 
ensure attainment of water quality standards. See proposed 
Sec. 125.84(g).
    EPA invites comments on all aspects of the proposed regulatory 
framework to implement section 316(b) so as to ensure that individual 
permit decisions result in the minimization of adverse environmental 
impact and attainment of water quality standards.
    EPA recognizes that the foregoing approach differs significantly 
from the site-specific approaches used in the past in implementing 
section 316(b). For example, EPA has not previously attempted to 
establish minimum flow or velocity requirements for broad classes of 
water bodies. However, based in large measure on the Agency's 
experience in attempting to implement section 316(b) on a wholly site-
specific basis, the Agency is today proposing this new approach.
    The existing case-by-case approach to section 316(b) decision-
making has proven difficult to implement for several reasons. A variety 
of different types of steam electric generating facilities and many 
different categories of manufacturing facilities (including pulp and 
paper manufacturers, chemicals and allied products manufacturers, 
petroleum and coal products manufacturers, primary metals 
manufacturers, and 14 additional categories) use cooling water and may 
potentially have cooling water intake structures.
    The historical case-by-case approach requires significant resources 
on the part of the regulatory authorities that must implement section 
316(b) requirements. The historical decision-making process requires 
that each regulated facility must develop, submit, and refine studies 
that characterize or estimate potential adverse environmental impact. 
Such studies can take several years to complete and require the support 
of a multi-disciplinary team. In addition, given the iterative nature 
of the assessment process, industry as well as EPA regional and State 
regulatory authorities must expend significant resources assessing 
study plans and methods for characterizing the environmental impact 
occurring at each facility and evaluating those data to determine what 
constitutes BTA for each specific facility. For example, the assessment 
of data needs and sufficiency might involve site visits, inspections, 
follow-up information gathering, and study review and modification. The 
resource requirements of the historical approach have also served as a 
disincentive to revisiting section 316(b) permit conditions during each 
renewal (typically every 5 years). Given that most facilities that use 
cooling water intake structures became operational before 1980, EPA 
believes this reluctance to fully reconsider permit conditions in light 
of new technologies is a significant concern. On the other hand, EPA 
also recognizes that some stakeholders believe that there are 
advantages to a site-specific approach. These stakeholders believe that 
the potential for a cooling water intake structure to cause adverse 
environmental impact, and the specific technology that would best 
minimize such impacts at reasonable cost is highly dependent on site-
specific factors. These include waterbody characteristics, the specific 
locations of the structure, which species are present, weather, and 
other relevant factors. These stakeholders believe a site-specific 
approach such as that which has been used historically may allow 
stakeholders and permitting authorities to identify technology options 
for minimizing adverse environmental impact at a particular site at 
significantly less cost than would be possible through implementation 
of consistent requirements, within broad environmental categories, 
stringent enough to minimize adverse environmental impact at all sites. 
Many industry stakeholders have indicated that in their view the costs 
of producing comprehensive site-specific studies in support of 316(b) 
regulatory compliance, while significant, has been money well spent.
    The historical case-by-case approach to section 316(b) decision-
making also might result in permitting decisions that are less 
consistent than they would be if national requirements were in place. 
The case-by-case approach results in less predictability regarding what 
is or may be required for a particular facility, which makes planning 
difficult for industry and leaves regulatory agencies uncertain about 
the appropriate requirements for particular water bodies or facilities. 
Without Federal regulations, Directors and States must look to Agency 
guidance and past permit actions to inform their decisions. Absent 
national requirements, State officials often lack authoritative 
guidance for their own regulatory efforts. Only a few NPDES-authorized 
States have specifically addressed cooling water intake structure 
technology in statutes or regulations. Some States and EPA regions have 
required significant section 316(b) studies to be performed by 
facilities, whereas in other cases determinations have been based on 
limited actual background and ecological data. Some stakeholders 
believe that the need for consistency and guidance for State officials 
need not be addressed only through binding regulations. These 
stakeholders believe that comprehensive guidance, that provides needed 
technical and methodological support to permit writers and facilities 
alike can, to a large extent, fulfill the same function while at the 
same time preserving flexibility to adopt cost effective approaches to 
minimize adverse environmental impact at a particular site.
    EPA has already received suggestions from Stakeholders that the 
Agency adopt a more case-by-case approach to this proposed rule. 
Therefore, the

[[Page 49080]]

Agency also invites comment on a rule framework that would resemble the 
framework the Agency proposed in the 1970s. EPA would implement section 
316(b) on a case-by-case, site specific basis, but the Agency would 
establish specific decision criteria that the Director would have to 
consider when determining the appropriate BTA for minimizing adverse 
environmental impact. First the Director would determine whether an 
adverse environmental impact is or is not occurring. If an impact is 
occurring, the Director would consider a number of factors in 
determining what would constitute BTA and whether the facility is 
minimizing adverse environmental impact from cooling water intake 
structures. Regulatory language like the following could be used to 
implement this approach:

    The director must determine whether a cooling water intake 
structure is minimizing adverse environmental impact based on the 
consideration of:
    (1) The composition and vulnerability of the biological 
communities within the cooling water intake structure's zone of 
influence;
    (2) The importance of the source water body to the surrounding 
biological community, including the presence of spawning sites, 
nursery/forage areas, and areas necessary for critical stages in the 
life cycle of aquatic organisms;
    (3) Potential impingement of aquatic organisms based on the 
design intake velocity;
    (4) Potential entrainment of small aquatic organisms based on 
the intake water flow;
    (5) Existing or potential recreational, commercial, and 
subsistence fishing, including finfishing and shellfishing;
    (6) Other factors relating to the adverse environmental impact 
of the intake, as may be appropriate.

    EPA invites comment on the case-by-case approach to determine BTA 
for minimizing adverse environmental impact.
    One variation on this approach that might well balance the need to 
provide clarity and consistency with the need to allow for some site-
specific flexibility would be to establish a rebuttable presumption 
that the requirements of the proposed rule (or some other set of 
uniform national requirements based on this proposal) reflect BTA, but 
then allow a new facility, at its option and with the full burden of 
proof resting on the facility, to provide a demonstration that due to 
site-specific conditions at the site some alternative technology or 
suite of technologies would minimize adverse environmental impact. 
Under this approach, the facility would be required to demonstrate 
during the permit proceeding that the facility will minimize adverse 
environmental impact without complying with some or all of the proposed 
requirements relating to flow, intake velocity, and additional design 
and construction technologies. Requests for alternate technology 
requirements would need to be accompanied by data and information that 
demonstrate clearly and conclusively that the facility will minimize 
adverse environmental impact without complying with the proposed 
requirements. If EPA were to adopt this approach, EPA would provide 
guidance to facilities and permit writers on available alternative 
technology requirements and the type of site-specific conditions under 
which they may be appropriate to minimize adverse environmental impact, 
and on factors to consider in determining whether a proposed set of 
alternative requirements would minimize adverse environmental impact. 
EPA would also address the type of documentation facilities would need 
to provide in order to support a request for alternative technology 
requirements based on site-specific conditions.
    If EPA adopted such an approach, language such at the following 
would be added to the regulation:

    It shall be presumed that the requirements of Sec. 125.84(a) 
through (e) reflect the best technology available for minimizing 
adverse environmental impact for all facilities to which this 
regulation applies. However, any new facility subject to these 
regulations may request that alternative technology-based 
requirements be imposed in the permit based on site-specific 
conditions. Alternative requirements shall be approved only if:
    (1) There is an applicable requirement under Sec. 125.84(a) 
through (e);
    (2) Data and information specific to the facility and the 
affected environment demonstrate clearly and convincingly that the 
facility will minimize adverse environmental impact by complying 
with the alternative requirements; and
    (3) The alternative requirements will ensure compliance with 
sections 208(e) and 301(b)(1)(C) of the Clean Water Act.
    The burden is on the facility requesting the alternative 
requirements to demonstrate clearly and convincingly that they will 
minimize adverse environmental impact and that the other 
requirements of (1) through (3) above are met.

    This rebuttable presumption framework might also be integrated with 
components of the other options for site-specific flexibility as 
suggested by some stakeholders and discussed in this preamble, 
including the option of allowing some kind of balancing of costs with 
environmental benefits as part of the demonstration that an alternative 
technology would minimize adverse environmental impact and/or allow 
restoration or mitigation as part of a site-specific BTA determination. 
EPA requests comment on the rebuttable presumption approach and how it 
might best be implemented. Specifically, EPA requests comment on types 
of site-specific conditions under which alternative technology 
requirements may be appropriate to minimize adverse environmental 
impact, factors that should be considered in determining whether a 
proposed set of alternative requirements would minimize adverse 
environmental impact, and specific methodologies for assessing adverse 
environmental impact.
    In addition to today's proposal, EPA is considering an alternative 
based in whole or in part on a zero-intake flow (or nearly zero, 
extremely low-flow) requirement commensurate with levels achievable 
through the use of dry cooling systems. Under this alternative, a zero 
or nearly zero-intake flow requirement based on the use of dry cooling 
systems would be the primary regulatory requirement in either (1) all 
waters of the U.S.; (2) within tidal rivers, estuaries, and the 
littoral zone of freshwater rivers, lakes reservoirs and oceans; or (3) 
within tidal rivers, estuaries, and within or near the littoral zone of 
freshwater rivers, lakes, reservoirs and oceans. The Agency is also 
considering subcategorizing the new facility regulation based on types 
or sizes of new facilities and location within regions of the country 
since climate may be one factor affecting the viability of dry cooling 
technologies. In this scenario, the Agency would require flow rates 
commensurate with use of dry cooling systems for certain types or sizes 
of new facilities, and/or new facilities in certain locations, based on 
the costs, efficiency, and consumption of energy that may be associated 
with reducing withdrawals from waters of the U.S. to a level 
commensurate with those achieved by dry cooling systems.
    Dry cooling systems (towers) use either a natural or mechanical air 
draft to transfer heat from condenser tubes to air. In wet cooling 
systems that employ conventional wet cooling towers, cooling water that 
has been used to cool the condensers is pumped to the top of a cooling 
tower; as the heated water falls, it cools through an evaporative 
process and warm, most 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.
    Dry cooling towers have several advantages over wet cooling towers. 
They do not consume water through evaporation, have no wastewater 
discharge to affect water quality, do not

[[Page 49081]]

cause drift of salt or other minerals, do not require the use and 
subsequent treatment of water conditioning chemicals or biocides, and 
do not create a vapor plume. Further, as plants employing dry cooling 
systems have no cooling water needs, they can be located near or in 
cities and other areas with great demand for electricity irrespective 
of the availability of large supplies of cooling water, thereby 
reducing costs and power losses associated with transmitting 
electricity over long distances. Dry cooling systems reduce the 
impingement and entrainment of aquatic organisms associated with 
cooling water use. For example, the State of New York estimates that 
compared to a wet/dry hybrid cooling system, use of a dry cooling 
system at a recently permitted 1,080 MW electricity generating facility 
would reduce projected annual fish mortality at the facility from 
24,500 to 1,000 American Shad, from 1.9 million to 76,000 River 
Herring, from 1,200 to 50 Striped Bass, and from 23,000 to 950 White 
Perch.\37\
---------------------------------------------------------------------------

    \37\ NYDEC, Interim Decision, Athens Generating Company, State 
of New York Department of Environmental Conservation, No: 4-1922-
00055/00001, SPDES No: NY-0261009, June 2, 2000.
---------------------------------------------------------------------------

    On the other hand, as dry cooling systems use air rather than water 
for cooling, dry cooling systems are generally less efficient than wet 
cooling systems. Dry cooling systems perform most efficiently in colder 
climates, where the temperature differential is greater between the 
process water and the air used for cooling, and are generally less 
efficient in warmer climates, though EPA is aware that such systems are 
currently operating under desert conditions where air temperatures 
frequently exceed 100 deg.F for extended periods. Because dry cooling 
systems exhibit lower cooling efficiencies than wet systems, a dry 
cooling system would be larger than a wet system with a comparable 
cooling capacity. For example, a recent application filed with the 
State of New York for a 1000 MW power plant indicated that two air-
cooled condensers would be needed to meet the cooling needs of the 
proposed project, each one approximately 160 feet by 430 feet and 
approximately 105 feet tall. For a wet-dry hybrid cooling system, two 
cooling towers would be needed, each one approximately 50 feet by 300 
feet and 60 feet tall.\38\
---------------------------------------------------------------------------

    \38\ Astoria Energy LLC Queens, New York Facility, Application 
for Certification of a Major Electric Generating Facility Under 
Article X of the New York State Public Service Law, Volume 1, June 
2000.
---------------------------------------------------------------------------

    Dry cooling systems can cost as much as three times more to install 
than a comparable wet cooling system. Dry cooling system operating 
costs have been reported to range from less than or comparable to wet 
systems to two or more times higher. For example, the Astoria Energy 
LLC Queens application filed with the State of New York indicated that 
a dry cooling system would cost $32 million more to install than a 
hybrid wet-dry cooling system and $29 million more than a once-through 
cooling system for a proposed 1000 MW plant. Operating costs would be 
$30 million less for the dry cooling system than the hybrid wet-dry 
system, and $19 million more than for a once-through cooling 
system.\39\ The State of New York estimates that use of a dry cooling 
system at the recently permitted 1,080 MW Athens Generating Company 
facility would cost approximately $1.9 million more per year, over 20 
years, than a hybrid wet-dry cooling system for a project with a total 
projected cost of approximately $500 million. In addition, dry systems 
generally are perceived to impose an energy penalty as compared to wet 
cooling systems. However, there is some uncertainty regarding the 
precise energy costs or penalty associated with the different types of 
cooling systems. For example, at the Athens Generating Company 
facility, New York State officials estimate a 1.4 to 1.9 percent 
reduction in overall plant electrical generating capacity as a 
consequence of using a dry cooling system versus a hybrid wet-dry 
system.\40\ By contrast, the Astoria Energy Queens facility application 
estimates that a dry cooling system would save approximately 0.5 
percent in energy costs as compared to a hybrid wet-dry cooling system. 
Other factors, including climatic conditions, may affect energy costs 
associated with a particular type of cooling system. It has been 
reported that plants using wet cooling systems in warm climates export 
more power than comparably sized plants using dry cooling systems. 
Likewise, a study of a pulverized coal plant in Denmark found net heat 
conversion efficiencies of 45.9 percent and 44.5 percent for the plant 
configured with a wet cooling tower and dry cooling tower respectively. 
This corresponds to an average energy penalty of about 3 percent for 
the dry cooling tower relative to the wet cooling towers.\41\ Changes 
in energy consumption associated with dry cooling would result in 
changed fuel consumption and therefore may result in changed emissions 
of greenhouse gases.
---------------------------------------------------------------------------

    \39\ Astoria Energy LLC Queens Facility Application.
    \40\ NYDEC, Initial Post Hearing Brief, Athens Generating 
Company, L.P., State of New York, Department of Environmental 
Conservation, Case No. 97-F-1563, June 28, 1999.
    \41\ Gordon R. Couch, ``Coal-fired Power Generation--Trends in 
the 1990s,'' IEA Coal Research, London, UK, 1997.
---------------------------------------------------------------------------

    The Agency is aware that at this time dry cooling systems are 
currently in use at over 60 electrical generation facilities world 
wide; over 50 of these facilities are in North America. Moreover, 
plants using dry cooling demonstrate a considerable variety in prime 
mover technology including combined cycle, co-generation, and steam 
turbine, as well as diversity in fuels used including coal, wood, 
methanol, natural gas and waste. The operational facilities range in 
size from 1 MW to a 645 MW facility. In addition, two facilities using 
dry cooling have been recently permitted but are not yet operational, 
one with a 580 MW capacity, the other (Athens Generating Company) with 
a 1,080 MW capacity. Further, EPA has information that applications for 
nine additional plants using dry cooling systems are pending. These 
plants range in capacity from 170 MW to 1,100 MW.
    At this time the Agency does not have sufficient information to 
make a decision on whether to implement a zero or near zero intake-flow 
requirement that would effectively require the use of dry cooling 
technology. EPA is inviting comment on factors which may favor or 
disfavor the use of dry cooling systems including any cost information 
associated with any of these factors. The Agency also invites comment 
on whether and how dry cooling could be a basis for BTA requirements. 
In particular, the Agency invites comment on whether the Agency should 
consider subcategorizing facilities proposed for regulation today and 
requiring flows based on dry cooling for those facilities of a certain 
size or in certain locations where dry cooling is a viable technology 
at an economically practicable cost. For example, for the types and 
sizes of facilities in areas where dry cooling has been employed at 
facilities in operation, permitted, or slated for construction, the 
Agency might determine that dry cooling is the best technology 
available to minimize adverse environmental impact. EPA also invites 
comment on regulatory approaches of this type based on hybrid wet-dry 
cooling rather than dry cooling.
    In developing the regulatory framework proposed today, EPA 
considered an alternative under which

[[Page 49082]]

facility operators might have the flexibility to ``trade'' among 
components of BTA to potentially achieve equivalent reductions in 
adverse environmental impact at lower cost. For example, a facility 
operator who reduced flow below the requirements specified in today's 
proposal might then have the opportunity not to reduce velocity as 
specified, or to install fewer additional design technologies. The 
Agency invites comment on all aspects of an approach that would allow 
trading among the components of BTA.
    EPA also is considering a regulatory framework that would apply the 
BTA requirements proposed for estuaries and tidal rivers to all 
facilities, regardless of their location. This would ensure that the 
same stringent controls are the nationally applicable minimum for all 
water body types. In addition, all facilities would have to implement 
technologies that maximize the survival of impinged adult and juvenile 
fish and minimize the entrainment of eggs and larvae, and comply with 
additional requirements established by the Director. Some stakeholders 
assert that an approach that establishes a uniform, stringent set of 
national BTA requirements is the only one permissible under section 
316(b) as all parts of all waters of the U.S. require stringent BTA 
requirements in order to minimize adverse environmental impact. These 
stakeholders believe that section 316(b) is wholly technology-based, 
that cooling towers are the best technology available for minimizing 
adverse environmental impact, and that therefore, cooling towers must 
be the basis for BTA requirements nationally.
    EPA invites comment on all aspects of the regulatory framework and 
the other approaches discussed herein.
    Some stakeholders have suggested an alternative regulatory 
framework in which section 316(b) implementation is accomplished 
through site-specific examination of the risk of adverse environmental 
impact and (assuming the cooling water intake structure poses some 
reasonable risk of adverse environmental impact) site-specific 
evaluation of potential BTA technologies.
    Under one approach, the framework of the site-specific alternative 
would consist of three tiers. In Tiers 1 and 2, the facility, in 
consultation with the Director, would assess the potential for risk of 
adverse environmental impact associated with the proposed cooling water 
intake structure. Tier 1 would be both a screening and an assessment 
tier that relies on existing information that is site-specific or 
relevant to the adverse environmental impact determination. Tier 2 
would focus on collection and analysis of additional information 
collection activities, as necessary, to make the adverse environmental 
impact determination. In Tier 3, which would assume that the Director 
has found that the cooling water intake structure is reasonably likely 
to pose risk of adverse environmental impact, the facility would assess 
BTA alternatives, including an evaluation of costs and benefits. In 
each tier, the facility would bear the burden of generating data and 
analyses.
    In Tier 1, the facility would examine the risk of adverse 
environmental impact using certain types of existing information, such 
as fisheries management data, multimetric biocriteria results, 
operational and design specifications for the proposed cooling water 
intake structure, or other pertinent and reliable information. The 
initial steps in the Tier 1 analysis would be (1) review of cooling 
water intake structure design and proposed operations, (2) selection of 
``designated important species,'' (3) definition of a study population 
of designated important species, and (4) identification of existing or 
readily available information sources.
    Selection of designated important species would be site-specific, 
taking into consideration such factors as the species' likely 
involvement with the cooling water intake structure and the 
representativeness of the species in relation to the aquatic community. 
Selection of designated important species would consider commercially 
and recreationally important species, listed threatened and endangered 
species, species otherwise identified for protection or management, and 
food web species.
    Based on existing information (where existing information is 
scientifically valid and adequate to evaluate the potential effects of 
the cooling water intake structure), including an assessment of the 
planned cooling water intake structure's characteristics, its 
geographic/hydrological setting, the nature of the biological 
community, or other factors, the facility would make an initial 
determination as to whether the information is adequate, 
representative, and indicative of a low risk of adverse environmental 
impact. If the Director agrees that there is a low risk, the proposed 
cooling water intake structure would be BTA. If the Director finds the 
existing information insufficient or finds that the risk of adverse 
environmental impact is not low, the facility would proceed to Tier 2.
    In determining whether there is a risk of adverse environmental 
impact, the Director would consider the appropriate level of biological 
significance to the individual species, which would generally be the 
population level. The Director would consider whether the cooling water 
intake structure effects pose a risk to the viability of the designated 
important species populations and their ability to support existing 
ecosystem functions. This would include adequate protection of (1) the 
structure and function of the aquatic community, (2) commercially and 
recreationally important species, and (3) threatened or endangered 
species.
    In Tier 2, the facility would conduct field studies for one of two 
purposes, following two separate tracks. In Track A, a facility might 
conduct special studies to provide adequate information to make a Tier 
1 determination of its reasonable potential to cause adverse 
environmental impact. In Track B, the facility might conduct 
information collection activities (such as population modeling), as 
necessary, to make a Tier 2 determination as to whether the cooling 
water intake structure is reasonably likely to cause adverse 
environmental impact. The facility would have primary responsibility 
for study design and implementation, subject to securing approval of 
the Director prior to commencing any study. The facility would have the 
option of volunteering to perform restoration measures and having those 
measures taken into account in evaluating the risk of adverse 
environmental impact.
    If a facility completes Tier 2 and the Director determines that the 
proposed cooling water intake structure is not reasonably likely to 
cause adverse environmental impact, the cooling water intake structure 
would reflect BTA. If, on the other hand, a facility completes Tier 2 
and the Director determines that the proposed cooling water intake 
structure is reasonably likely to cause adverse environmental impact, 
in Tier 3 the facility would assess a reasonable range of BTA 
alternatives. Facilities would have the opportunity to evaluate 
potentially feasible cooling water intake structure technologies to 
address the specific adverse environmental impact, and also would have 
the opportunity to develop new cooling water intake structure 
technologies. At its option, a facility could perform a benefit/cost 
analysis of the BTA candidate technologies. Otherwise, it could decide 
to offer a cooling water intake structure technology or technologies as 
BTA based on an initial performance assessment of their 
characteristics. If a facility proceeds with the cost/benefit analysis, 
BTA would be determined

[[Page 49083]]

through application of a ``reasonably proportional'' standard. Also, 
the facility could propose restoration measures to address the adverse 
environmental impact that could be used in place of, or as a supplement 
to, BTA.
    Another site-specific approach suggested by stakeholders would 
allow new facilities applying for NPDES permits to have the option of 
performing studies necessary to make a site-specific BTA determination. 
This approach is comparable to the ``rebuttable presumption'' approach 
described above. The extent and nature of such studies would be 
determined by the proposed location of the cooling water intake 
structure vis-a-vis the location factors EPA has proposed as indicative 
of sensitivity. Proponents of this approach suggest that general study 
design requirements appropriate for different types of water bodies 
(i.e., freshwater rivers, lakes, reservoirs, estuaries and tidal 
rivers, oceans, and the Great Lakes) and EPA could develop proposed 
intake structure locations, using information provided by state-of-the-
art studies as conducted by the regulated community, research and 
academic institutions, government agencies, and others.
    Under this alternative suggested by stakeholders, studies would be 
designed to predict likely entrainment and impingement effects, along 
with other environmental effects associated with a proposed cooling 
water intake structure configuration. The study would assess whether 
those predicted effects are of a magnitude such that the Director can 
conclude, after considering guidance that EPA would prepare, that the 
effects are not reasonably likely to be ``adverse'' to the affected 
aquatic population or community. In situations where the Director is 
unable to conclude, with reasonable certainty, that there is no 
reasonable likelihood of adverse environmental impact from the proposed 
cooling water intake structure configuration, he or she would compare 
the performance of the proposed alternative to the predicted 
performance of other reasonably available technologies relative to the 
design, location, construction, and capacity of the cooling water 
intake structure. The Director would also assess the costs and benefits 
(including the costs and benefits associated with other environmental 
effects) of those alternatives whose performance is comparable to that 
of the proposed alternative and would select as ``BTA'' that technology 
or technologies whose costs and benefits are reasonably related, taking 
into account the level of uncertainty in the available data. Consistent 
with this approach, EPA could develop guidelines for performing cost/
benefit analyses that would minimize the need to collect extensive new 
data to characterize the value of resources for which there is not an 
existing market. These guidelines would facilitate reasonably 
consistent, cost-effective decisions under this approach.
    This approach is premised on the conclusion that national standards 
and locational attributes alone cannot properly account for biological 
factors, which are inherently site-specific and that the best 
technology available for minimizing adverse environmental impact 
location also is site-specific. The stakeholders advocating this 
approach point out that among the factors that differ from site to site 
are the risk of entrainment and impingement posed by a given cooling 
water intake structure to different aquatic species and different life 
stages; site-and species-specific factors that affect the sensitivity 
of aquatic populations and communities to entrainment and impingement; 
the need to balance the possible benefits, at the population or 
community level, of reducing entrainment or impingement of a given 
species or life stage versus possible adverse effects of the same 
technology on other species or life stages; the need to consider and 
balance potential benefits (and costs) of the proposed cooling water 
intake structure technologies to aquatic resources versus potentially 
adverse (or beneficial) effects of those technologies on other aspects 
of the environment; and the possibility that the specific performance 
requirements imposed by EPA would preclude use of the most 
environmentally and economically cost-effective technology in some 
cases. It has also been suggested that today's proposed framework 
contains unnecessarily redundant measures for minimizing impingement 
and entrainment, and that in the past, including in previous rules and 
in guidance, EPA recognized the necessity of considering these factors 
on a site-specific basis.
    Finally, it has been suggested that such an alternative will 
neither delay permitting of new facilities nor impose an undue burden 
on State and Federal permit writers, especially if EPA develops 
national guidance on the key issues (e.g., the nature of adverse 
environmental impact, the nature and extent of site-specific effects 
studies, and cost/benefit analytical issues) that will ensure timely 
decisions and an appropriate level of consistency.
    EPA requests comment on all aspects of the foregoing alternatives, 
and will give full consideration to each as it develops the final rule.
2. Location
    EPA has long recognized that the location of a cooling water intake 
structure is one of the key factors that affects the environmental 
impact caused by the intake structure. When cooling water is withdrawn 
from sensitive biological areas, there is a heightened potential for 
adverse environmental impact and therefore a heightened concern. EPA 
has attempted in this proposal to identify the areas that are most 
biologically productive or otherwise sensitive and to ensure that the 
appropriate suite of technologies is applied to minimize adverse 
environmental impact in those areas.
    The optimal design requirement for location is to place the inlet 
of the cooling water intake structure in an area of the source water 
body where impingement and entrainment effects on organisms are 
minimized (taking into account the location of the shoreline, the depth 
of the water body, and the presence and quantity of aquatic organisms 
or sensitive habitat). Although the most effective way to minimize 
adverse environmental impact associated with cooling water intake 
structures is to locate intakes away from areas with the potential for 
high productivity, the Agency recognizes that this is not always 
possible. Cooling water intake structures at new facilities located 
inside these sensitive areas would generally require controls to 
minimize adverse environmental impact.
    EPA is proposing to require expansive BTA requirements in tidal 
rivers, estuaries, and the ``littoral zone'' of freshwater rivers, 
lakes, and reservoirs. In oceans, EPA is using the term ``littoral 
zone'' broadly to include the ``euphotic'' areas of ``neritic'' waters. 
These areas are the most productive of ocean environments. Neritic 
waters are those over the continental shelf, and they include the areas 
of marine fish and mammal migration. The euphotic zone of neritic 
waters includes those areas that are sufficiently shallow and clear to 
allow for light penetration sufficient to support primary productivity. 
The Agency proposes to define the term ``littoral zone'' to mean any 
nearshore area in a freshwater river or stream, lake or reservoir, or 
estuary or tidal river extending from the level of highest seasonal 
water to the deepest point at which submerged aquatic vegetation can be 
sustained (i.e., the photic zone extending from shore to the substrate 
receiving one (1) percent of incident light); where there is a

[[Page 49084]]

significant change in slope that results in changes to habitat and/or 
community structure; and where there is a significant change in the 
composition of the substrate (e.g., cobble to sand, sand to mud). In 
oceans, the littoral zone encompasses the photic zone of the neritic 
region. The photic zone is that part of the water that receives 
sufficient sunlight for plants to be able to photosynthesize. The 
neritic region is the shallow water or nearshore zone over the 
continental shelf (see Sec. 125.83). In general, the littoral zone 
defines the area where the physical, chemical, and biological 
attributes of aquatic systems promote the congregation, growth, and 
propagation of individual aquatic organisms, including egg, larvae, and 
juvenile life history stages. Appendix 1 illustrates a littoral zone 
defined by the deepest point at which submerged aquatic vegetation can 
be sustained.
    Adverse environmental impact from entrainment can for many species 
be controlled or minimized in part by addressing factors associated 
with the location of the intake structure. Placement (horizontal and 
vertical) in the water body to avoid areas where these species or life 
stages occur would limit the number of organisms taken into the cooling 
water intake structure. Placing the intake structure where ambient 
flows or water body volume are sufficiently large in proportion to the 
proposed cooling water intake structure to minimize impact also 
addresses these factors.
    For freshwater rivers, the littoral zone is the area along the 
shoreline that serves as the principal spawning and nursery area for 
many, but not all, species of freshwater fish. The shoreline habitat 
typically features both living and abiotic structures and a diverse 
community of invertebrates and fish. Most of the reproductive 
strategies of shoreline fish populations are similar to those found in 
the littoral zone of lakes and reservoirs. The fish of this zone 
typically follow a spawning strategy wherein the eggs are deposited in 
prepared nests, on the bottom, and attached to submerged substrate, 
where they incubate and hatch. As the larvae mature into fry and early 
juveniles, some species disperse to open water, while most others 
complete their life cycle in the littoral zone. Because these species 
do not employ a pelagic reproductive strategy, the eggs and larvae are 
not readily integrated into the drift component of the water column; 
this reduces the potential for entrainment. To minimize adverse 
environmental impact, the deepest open-water channel region of a river 
that is available for location of an intake structure should generally 
be used as a source of cooling water except where this area intersects 
with fish migratory routes.
    For lakes and reservoirs, the littoral zone is the portion of the 
body of water extending from the shoreline lakeward to the deepest 
point at which submerged aquatic vegetation can be sustained (fringe of 
existing rooted plants). To minimize adverse environmental impact, the 
deepest open region of a lake that is available for location of an 
intake structure would often be the optimal location for cooling water 
intake, and the cooling water intake flow should not alter the natural 
thermal stratification of the lake. Natural thermal stratification 
means the naturally occurring division of a waterbody into horizontal 
layers of differing densities as a result of variations in temperature 
at different depths.\42\ (Note, however, that such location is not the 
only mechanism for minimizing adverse environmental impact.)
---------------------------------------------------------------------------

    \42\ Extrapolated from Academic Press Dictionary of Science and 
Technology, ed, Christopher Morris, Academic Press, Inc., San Diego, 
CA, 1992.
---------------------------------------------------------------------------

    For estuaries and tidal rivers, the most stringent minimum 
requirements would apply to the entire water body. The abundance and 
diversity of aquatic life within the estuarine and tidal river 
environment (composed of protected bays, sounds, and lagoons) are 
generally richer than those in any other water body type. These areas 
provide an abundance of habitat, food, and refuge for the development 
of the early life stages of the inshore and nearshore aquatic 
communities, including communities of meroplankton and holoplankton. 
The vast majority of commercially and recreationally important species 
of finfish and shellfish caught in the United States use and depend on 
estuaries and tidal rivers for completing their life cycles. Estuaries 
and tidal rivers are among the most complex of aquatic habitats, 
especially with respect to the environmental factors that affect the 
distribution patterns of fish eggs, larvae, and juvenile life stages. 
Many estuarine species have pelagic or planktonic larvae whose movement 
in and around the estuary, as well as vertically within the water 
column, is affected by the hydrodynamic characteristics of the estuary, 
environmental factors, and the evolved behavior of the organisms. 
Factors that affect the location and movement of aquatic organisms 
within estuaries and tidal rivers include tides and currents, salinity, 
dissolved oxygen, temperature, and suspended solids. Additionally, 
weather patterns, both short- and long-term, can influence the movement 
and location of aquatic organisms in estuaries and tidal rivers. As a 
consequence, the Agency is proposing, at a national level, to establish 
the most stringent requirements to minimize adverse environmental 
impact for all areas within estuaries and tidal rivers. The Agency 
developed cost estimates for this proposal, using the most 
comprehensive suite of technologies in all parts of tidal rivers and 
estuaries and, as discussed below, estimated that these costs would be 
economically practicable.
    For oceans, the littoral zone (which is being defined as the photic 
zone of the neritic region) is the area outward from the shoreline 
beyond the low tide level including waters over the continental shelf. 
Where islands occur in the ocean, a littoral zone would extend out from 
the low tide level of the island shoreline. In the near and offshore 
areas, aquatic life is concentrated in convergence zones of major 
oceanic currents, within reefs, rocky bottoms, hard bottom ledges, and 
kelp beds.
    EPA is proposing requirements based on the proximity of the intake 
structure to the littoral zone. For freshwater rivers (or streams) and 
lakes (or reservoirs), the Agency would specify three categories of 
requirements based on location criteria. The first category would 
establish requirements for a cooling water intake structure located at 
least 50 meters outside the littoral zone. Cooling water intake 
structures that meet this location criterion would have to meet the 
least stringent set of minimum requirements. The second category would 
establish minimum requirements for a cooling water intake structure 
located less than 50 meters outside the littoral zone. The third 
category would establish minimum requirements for a cooling water 
intake structure located in the littoral zone. EPA would establish only 
one set of minimum requirements for cooling water intake structures 
located in estuaries and tidal rivers. As discussed above, all parts of 
estuaries and tidal rivers have the potential for high biological 
productivity; therefore, the most stringent set of requirements and 
broadest suite of technologies would apply to cooling water intake 
structures located in these sensitive water body types. For oceans, the 
Agency is proposing two categories of requirements based on location 
criteria. One category addresses cooling water intake structures 
located outside the littoral zone; the other category addresses cooling 
water intake

[[Page 49085]]

structures located inside the littoral zone.
    EPA decided to propose at least 50 meters outside the littoral zone 
as the location in which the least stringent set of requirements would 
apply. The Agency has concluded this is appropriate because the 
greatest numbers of aquatic organisms and their habitat are not 
typically present 50 meters outside the littoral zone and therefore 
will not be vulnerable to impingement and entrainment. EPA recognizes 
that some important species have critical life stage areas at various 
distances outside of a littoral zone, and solicits public comment on 
how best to deal with this species and site-specific variability. EPA 
also is considering distance criteria of 200 meters, 100 meters, and 
just outside the littoral zone. EPA solicits comment on these 
alternative distance criteria.
    To address concerns about potential implementation issues 
associated with basing the regulatory requirements on site-specific 
determinations of the littoral zone, the Agency also is considering 
establishing a fixed distance from the shoreline instead of a fixed 
distance from the littoral zone to define the area in which the most 
stringent minimum requirements would be applicable. EPA solicits 
comment on the following criteria for distance from the shoreline: (1) 
30 percent of the distance from shoreline to the opposing shore (i.e., 
30 percent of the water body width) for streams, rivers, lakes, and 
reservoirs and (2) 500 meters offshore for tidal rivers, estuaries, and 
oceans. Regulatory language such as the following could be used to 
implement this approach:

    Littoral zone in a freshwater river or stream, lake, or 
reservoir means the nearshore area that extends 30 percent of the 
distance from one shoreline to the opposite shoreline (i.e., 30 
percent of the width of the waterbody at the point of measurement) 
and in a tidal river, estuary, or ocean means the nearshore area 
extending 500 meters from the shoreline.
3. Flow and Volume
    As stated previously, flow is one component of capacity and 
capacity includes the maximum volume of water that can be withdrawn 
through a cooling water intake structure. Flow and volume are 
parameters that can be regulated to minimize adverse environmental 
impact. In particular, the magnitude of entrainment impacts is directly 
related to the capacity or intake flow (or volume) of cooling water 
intake structures. The adverse impact that results from entrainment of 
organisms occurs after the organism has entered the cooling water 
system, where it may be exposed to elevated temperatures, shearing 
forces, impact from mechanical equipment, swift changes in pressures, 
lack of dissolved oxygen, and chemicals. Once organisms are entrained, 
mortality and injury rates can be high.
    One way to minimize the adverse environmental impact from 
entrainment is to minimize the flow or volume a facility withdraws. 
Therefore, today's proposed rule includes requirements that would limit 
cooling water intake design flow or volume at new facilities.
a. Flow Requirements for New Facilities With Cooling Water Intake 
Structures Located in Freshwater Rivers and Streams
    Total design intake flow from all cooling water intake 
structures at a facility located in a freshwater river or stream 
must be no more than the lower of five (5) percent of the source 
water body mean annual flow or 25 percent of the source water 7Q10.

    New facilities that have cooling water intake structures located in 
freshwater rivers or streams would have to meet a flow requirement that 
would limit the proportion of the design intake flow withdrawn by the 
facility compared to the flow of the water body in which the intake is 
located. Proposed Sec. 125.84(b). Two proportional requirements are 
being proposed, and facilities would be required to meet the more 
stringent of the two.
    The first of these requirements would limit the total design intake 
flow from all cooling water intake structures at the facility to five 
(5) percent of the annual mean flow of the water body. As previously 
noted, 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 many aquatic species are free-
floating and may be drawn with the flow of cooling water into an intake 
structure. The five percent requirement would establish a maximum level 
for entrainment effects that, in all areas within 50 meters of the 
littoral zone, would be further reduced by additional requirements 
(such as requirements to reduce cooling water withdrawals, and 
additional design and construction technologies to further reduce 
impingement and entrainment). EPA estimates that the combination of 
these requirements (and the design intake velocity limitation for 
reducing impingement in almost all waterbody types) should result in 
protection of greater than 99 percent of the aquatic community from 
impingement and entrainment. This combination of requirements to 
establish a minimum level of protection for aquatic communities is 
analogous to the process employed by EPA's water quality-based 
regulatory programs for developing the necessary levels of protection 
to protect aquatic communities within the water body as a whole where 
impacts may occur. These requirements provide the minimum level of 
protection for designated uses that reflect the goals in section 101(a) 
of the CWA, i.e., ``protection and propagation of fish and shellfish 
and wildlife and recreation in and on the water.'' As described 
elsewhere, the Director would have authority under this proposal to 
impose additional requirements on a site-specific basis in certain 
circumstances should the requirements proposed today not protect 
aquatic life from adverse environmental impact.
    The Agency has considered other design intake flow levels in 
developing this proposal, including 1 percent, 10 percent, and 15 
percent of the mean annual flow of the waterbody. With the exception of 
the 1 percent level, EPA concludes these levels would result in 
decreased protection. EPA solicits comment on these alternatives to 
five percent of the annual mean flow.
    The second part of the flow requirement would limit the proportion 
of the total design intake flow to 25 percent of the source water 
body's 7Q10 flow. The 7Q10 is the lowest average seven-consecutive-day 
low flow with an average recurrence frequency of once in 10 years 
determined hydrologically. EPA estimates that limiting the proportion 
of a river or stream to 25 percent of the 7Q10, in conjunction with the 
other requirements proposed today, also should protect more than 99 
percent of aquatic communities from adverse environmental impact. As 
explained above, this flow requirement, in combination with other 
requirements, would establish a minimum level of protection for aquatic 
communities analogous to that employed by EPA's water quality-based 
regulatory programs. The Agency invites comment on the use of other 
low-flow protection requirements, including a requirement that would 
limit cooling water intake structure capacity to 10 percent, 15 
percent, 25 percent, or 35 percent of the 7Q10 low flow.
    EPA has analyzed the potential siting implications of the proposed 
flow requirements and has determined that within the United States 
approximately 104,000 river miles have sufficient flow to support the 
water usage needs of large manufacturing facilities withdrawing up to 
18 million gallons of water per day (MGD). Approximately 47,000 river 
miles could support a large nonutility power-producing facility

[[Page 49086]]

withdrawing 85 MGD, and approximately 18,000 river miles could support 
a large utility plant requiring 700 MGD. Under today's proposed rule, 
large new facilities needing additional cooling water in other areas 
would need to supplement withdrawals from waters of the U.S. with other 
sources of cooling water, or redesign their cooling systems to use less 
water.
    As another gauge of the siting impacts of the proposed flow 
requirement for new facilities, the Agency determined that 89 percent 
of existing non-nuclear utility facilities (from a 1997 database of the 
Energy Information Agency and a 1994 Edison Electric Institute 
database) would be able to be sited at their current location under 
today's proposed requirements if they also operated in compliance with 
the flow reduction requirements proposed today. (Please note that the 
Agency does not intend to prejudge or signal in any way whether its 
proposed rule for existing facilities will or will not include capacity 
limitations commensurate with a level that could be attained by a 
recirculating cooling water system. The purpose of the analysis was to 
determine whether today's proposed flow requirements would unreasonably 
limit siting alternatives for new facilities only.)
    Finally, to further examine the potential siting implications of 
today's proposal for new facilities, the Agency reviewed data on water 
use by existing facilities in arid regions of the country. The Agency 
found that 80 percent of the existing facilities in Arizona, 
California, Nevada, New Mexico, Oklahoma, and Texas do not use waters 
of the U.S. in their operations, suggesting that new facilities in 
these areas would similarly use waters other than waters of the U.S. in 
their operations. Therefore, they would not be affected by today's 
proposal if they were being constructed as new facilities subject to 
the rule.
    Based on these analyses, the Agency is proposing flow requirements 
as an economically practicable component of requirements for BTA to 
minimize adverse environmental impact.
b. Flow Requirements for New Facilities With Cooling Water Intake 
Structures Located in Lakes and Reservoirs
    Total design intake flow from all cooling water intake 
structures at a facility located in a lake or reservoir must not 
alter the natural thermal stratification of the water body.

    EPA is proposing that cooling water intake structures located in 
lakes or reservoirs not alter the natural thermal stratification of the 
water body. Proposed Sec. 125.84(c). Under natural conditions the water 
in lakes and reservoirs is seasonally stratified: The coldest water is 
on the bottom, and the warmest water is at the surface. EPA proposes to 
limit the facility's design intake flow to a threshold below which it 
will not cause the alteration of the thermal (and hence the dissolved 
oxygen) structure of the lake or reservoir.
    EPA is not proposing a proportional flow requirement for these 
facilities because the volume of the lakes and reservoirs on which they 
are located typically must be sufficient to accept their heated 
discharge and still maintain the efficiency of their cooling system. 
Because lakes and reservoirs typically do not have a strong current or 
flow, the volume of the water body must be great enough to dissipate 
the heat so that it is not recirculated back to the facility in its 
cooling water intake. However, EPA is proposing a requirement to 
protect the water body from alteration of the natural stratification, 
which can be caused by withdrawing large amounts of lower-temperature 
cooling water generally with low dissolved oxygen during the summer 
months. This would limit the intake flow of facilities that are located 
on a lake or reservoir to a capacity appropriate for the size of the 
water body, thus limiting the number of aquatic organisms impinged or 
entrained from the same water body.
    The flow requirements specified in today's proposal are adequate to 
protect most lakes and reservoirs. However, EPA recognizes that there 
are unique situations, such as the Great Lakes, in which there are 
site-specific factors that may warrant more stringent requirements (as 
determined by the Director) to minimize adverse environmental impact. 
One of the primary concerns with lakes and reservoirs is that the 
withdrawal of cooling water should not alter the natural thermal 
stratification of the water body. Since the volume of water in the 
Great Lakes is quite large compared to the amount of water withdrawn 
for cooling purposes, it is highly unlikely that the thermal structure 
of these lakes would be influenced by cooling water withdrawals. 
However, the Great Lakes, like estuaries, have areas of high 
productivity and sensitive critical habitats that could be adversely 
affected by cooling water intake structures. The Agency recognizes that 
new facilities with cooling water intake structures in such water 
bodies might need more stringent requirements than those generally 
proposed here for lakes and reservoirs. Section 125.84(f) would provide 
the Director the authority under this proposal to address important 
site-specific factors that lead to the need for additional control 
measures.
c. Flow Requirements for New Facilities With Cooling Water Intake 
Structures Located in Estuaries and Tidal Rivers
    The total design intake flow from all cooling water intake 
structures at a facility must be no greater than one (1) percent of 
the volume of the water column in the area centered about the 
opening of the intake with a diameter defined by the distance of one 
tidal excursion at the mean low water level.

    EPA is proposing a proportional flow requirement for cooling water 
intake structures located in estuaries and tidal rivers that limits the 
total design intake flow to no greater than one (1) percent of the 
volume of the water column in an area centered about the opening of the 
intake with a diameter defined by the distance of one tidal excursion 
at the mean low water level. Proposed Sec. 125.84(d).
    The basis for this proposal is similar to that underlying the 
proposed requirements for new facilities with cooling water intake 
structures located in freshwater rivers and streams. EPA selected a one 
(1) percent threshold for estuaries and tidal rivers because they are 
extremely productive and sensitive biological areas. A more 
conservative approach is necessary to protect these types of water 
bodies. However, because estuary volumes are very large, allowing a 
withdrawal of one (1) percent of an entire estuary would potentially 
allow for the impingement and entrainment of a very large number of 
aquatic organisms. Limiting the withdrawal to one (1) percent of a 
volume defined using the tidal excursion is a more appropriate and 
conservative approach to minimize adverse environmental impact and 
would protect 99 percent of the organisms in the area influenced by the 
cooling water intake structure. As noted above, this requirement in 
combination with the other requirements would establish a minimum level 
of protection analogous to water quality protection levels in other EPA 
programs.
    In addition, in natural systems species and populations that are 
impinged and entrained might not inhabit the entire estuary, or 
different species might inhabit different parts of the estuary. 
Therefore, EPA is proposing to use a smaller volume that relates more 
specifically to the cooling water intake structure and the area it 
influences. The volume being proposed for comparison to the intake 
volume is determined using the tidal excursion in the area of the 
cooling water intake structure. Tidal excursion is a measurement of the 
distance that a particle travels during

[[Page 49087]]

one tidal cycle (see proposed definition at Sec. 125.83). It would 
include the total of the distance upstream of the cooling water intake 
structure the particle would travel during the flood tide and the 
distance downstream it would travel during the ebb tide. By defining 
distances using the tidal excursion, the requirement would allow for a 
volume to be delineated by using the tidal excursion distance and 
drawing a radius (using the midpoint of the excursion distance) from 
one end of the excursion distance to the other. (See Appendix 2 to 
Preamble.) EPA invites comment on this approach.
d. Flow Requirements for New Facilities With Cooling Water Intake 
Structures Located in Estuaries and Tidal Rivers or the Littoral Zone 
in Other Water Body Types
    You must reduce your intake flow to a level commensurate with 
that which could be attained by a closed-cycle recirculating cooling 
water system.

    The reduction of the cooling water intake structure's capacity is 
one of the most effective means to reduce adverse environmental impact, 
especially in or near sensitive biological areas. EPA is proposing that 
facilities with intakes located in tidal rivers and estuaries; in the 
littoral zone of lakes, freshwater rivers, or oceans; or less than 50 
meters outside the littoral zone of lakes, freshwater rivers, or oceans 
limit their flow to a level commensurate with that which could be 
attained by a closed-cycle recirculating cooling water system. Proposed 
Secs. 125.84(b) through (e).
    EPA concludes these facilities would require this additional level 
of control because of their proximity to potentially sensitive and 
highly productive biological areas. Closed-cycle recirculating cooling 
water systems are known to reduce the amount of cooling water needed 
and in turn to directly reduce the number of aquatic organisms taken 
into the cooling water intake structure. For the traditional steam 
electric utility industry, facilities located in fresh water areas that 
have closed-cycle recirculating cooling water systems can, depending on 
the quality of the makeup 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 water systems using salt water can reduce water 
usage by about 70 to 96 percent when makeup and blowdown flows are 
minimized.\43\
---------------------------------------------------------------------------

    \43\ The lower range would be appropriate where State water 
quality standards limit chloride to a maximum increase of 10 percent 
over background and therefore require a 1.1 cylce of concentration. 
The higher range may be attained where cycles of concentration up to 
2.0 are used for the design.
---------------------------------------------------------------------------

    Today's proposal would require that the intake flow withdrawn by a 
cooling water intake structure be reduced to a level commensurate with 
that which can be attained by a closed-cycle recirculating cooling 
water system by all cooling water intake structures at the facility. 
That level, in conjunction with the other requirements proposed today, 
would minimize adverse environmental impact and be economically 
practicable. Such flow reductions are a necessary component of the 
technology for minimizing adverse environmental impact in highly 
productive areas. In addition, EPA cost estimates show that this 
requirement is available to new facilities on a national level. EPA 
realizes that makeup water would be required because of losses within 
the system, including blowdown, evaporation, windage, and drift. The 
Agency invites comment on the use of a flow reduction requirement that 
requires the reduction of intake flow to level commensurate with that 
which can be attained by a closed-cycle recirculating cooling water 
system that has minimized makeup and blowdown flows.
    To examine the extent to which new facilities are likely to reuse 
and recycle cooling water, the Agency reviewed the engineering 
databases that support the effluent limitations guidelines for several 
categories of industrial point sources. In general, this review 
identified extensive use of recycle or reuse of cooling water in 
documents summarizing industrial practices in the late 1970s and early 
1980s, as well as increased recycling and reuse of cooling water in the 
1990s. For example, the reuse of cooling water in the manufacturing 
processes was identified in the pulp and paper and chemicals 
industries, in some cases as part of the basis for an overall zero 
discharge requirement (inorganic chemicals). Other facilities reported 
reuse of a portion of the cooling water that was eventually discharged 
as process wastewater, with some noncontact cooling water discharged 
through a separate outfall or after mixing with treated process water.
    This review has documented that recycle and reuse of noncontact 
cooling water is a common industrial practice to reduce both cooling 
water usage and overall water usage by manufacturing facilities. 
Facilities that reuse 100 percent of the water withdrawn from waters of 
the U.S. for cooling purposes would be considered to have achieved the 
flow reduction requirements (i.e., reduce intake flow to a level 
commensurate with that which can be attained by a closed-cycle 
recirculation cooling water system that has minimized makeup and 
blowdown flows). In implementing today's proposed rule, EPA would 
consider reuse to be equivalent to a closed-cycle recirculating system. 
The Agency invites comment on the proposed approach for considering 
reuse of cooling water at manufacturing plants in lieu of recirculation 
as an alternative to meet the flow reduction requirement in today's 
proposal.
4. Velocity
    The velocity of water entering a cooling water intake structure 
exerts a direct physical force against which fish and other organisms 
must act to avoid impingement or entrainment. EPA considers velocity to 
be one of the more important factors that can be controlled to minimize 
adverse environmental impact at cooling water intake structures.
    To develop an appropriate, nationally protective minimum velocity 
requirement at cooling water intake structures, EPA reviewed available 
literature, State and Federal guidance, and regulatory requirements and 
found that a velocity of 0.5 ft/s has been used as guidance in at least 
three Federal documents.44 45 46 The 0.5 ft/s threshold 
recommended in the Federal documents is based on a study of fish 
swimming speeds and endurance performed by Sonnichsen et al. 
(1973).\47\ This study concluded that appropriate velocity thresholds 
should be based on the fishes' swimming speeds (which are

[[Page 49088]]

related to the length of the fish) and endurance (which varies 
seasonally and is related to water quality). The data presented showed 
that the species and life stages evaluated could endure a velocity of 
1.0 ft/s. To develop a threshold that could be applied nationally and 
would be protective of most species of fish and their different life 
stages, EPA applied a safety factor of two to the 1.0 ft/s threshold to 
derive a threshold of 0.5 ft/s. EPA recognizes that there are specific 
circumstances and species for which the 0.5 ft/s requirement might not 
be sufficiently protective and is aware that alternative requirements 
have been developed for these situations. For example, the National 
Marine Fisheries Service and the California Department of Fish and Game 
have developed fish screening criteria (velocity requirements) for 
anadromous salmonids that range from 0.33 ft/s to 0.40 ft/
s.48 49 50 There are also species for which a velocity of 
greater than 0.5 fps would still be protective.
---------------------------------------------------------------------------

    \44\ John Boreman, Impacts of Power Plant Intake Velocities on 
Fish, Power Plant Team, U.S. Fish and Wildlife Service, 1977.
    \45\ A.G. Christianson, F.H. Rainwater, M.A. Shirazi, and B.A. 
Tichenor, Reviewing Environmental Impact Statements: Power Plant 
Cooling Systems, Engineering Aspects, U.S. Environmental Protection 
Agency (EPA), Pacific Northwest Environmental Research Laboratory, 
Corvallis, Oregon, Technical Series Report EPA-660/2-73-016, October 
1973.
    \46\ Willis King, ``Instructional Memorandum RB-44: Review of 
NPDES (National Pollutant Discharge Elimination System) Permit 
Applications processed by the EPA (Environmental Protection Agency) 
or by the State with EPA oversight,'' Navigable Waters Handbook, 
U.S. Fish and Wildlife Service, February 1973.
    \47\ John C. Sonnichsen, Jr., B.W. Bentley, G.F. Bailey, and 
R.E. Nakatani, A Review of Thermal Power Plant Intake Structure 
Designs and Related Environmental Considerations, Hanford 
Engineering Development Laboratory, Richland, Washington, HEDL-TME 
73-24, UC-12, 1973.
    \48\ NMFS, Juvenile Fish Screen Criteria, National Marine 
Fisheries Service Northwest Region, 1995.
    \49\ NMFS, Fish Screening Criteria for Anadromous Salmonids, 
National Marine Fisheries Service, Southwest Region, April 14, 1997. 
Published on the Internet at http://swr.ucsd.edu/hcd/fishscrn.htm.
    \50\ California Department of Fish and Game, Fish Screening 
Criteria, April 14, 1997.
---------------------------------------------------------------------------

    Two velocities are of importance in the design of cooling water 
intake structures: the approach velocity and the through-screen or 
through-technology velocity. The approach velocity is the velocity 
measured just in front of the screen face or at the opening of the 
cooling water intake structure in the surface water source. This 
velocity has the most influence on an aquatic organism and its ability 
to escape from being impinged or entrained by the cooling water intake 
structure. The through-screen or through-technology velocity is the 
velocity measured through the screen face or just as the organisms are 
passing through the opening into another device (e.g., entering the 
opening of a velocity cap). This velocity is always greater than the 
approach velocity because the net open area is smaller.
    EPA is proposing to use the design intake velocity as a requirement 
relating to the design and capacity of a cooling water intake 
structure. The use of a design intake velocity requirement in this 
manner would ensure that intake structures have a velocity that 
contributes to minimizing adverse environmental impact. The Agency is 
proposing that head loss across the screens (or other appropriate 
measurements for technologies other than intake screens) be monitored 
and correlated with intake velocity to ensure that the facility is 
continually maintained and operated to minimize adverse environmental 
impact. Proposed Sec. 125.87(b).
    EPA is proposing to set the velocity requirement at 0.5 ft/s as a 
design through-screen or through-technology requirement. The Agency is 
proposing this requirement reflects BTA for the maximum design intake 
velocity of the cooling water intake structure. The Agency has reviewed 
the NewGen database and of those facilities potentially in the scope of 
today's proposed rule, the majority have design intake velocities of 
0.5 ft/s or less. Moreover, EPA has determined that a considerable 
number of facilities that have commenced commercial operation in the 
past few years have design intake velocities of 0.5 ft/s or less. These 
currently operating facilities demonstrate that a design intake 
velocity of 0.5 ft/s is achievable and provides for sufficient cooling 
water withdrawal. EPA is not proposing the more stringent criteria of 
0.33 ft/s and 0.40 ft/s, developed by NMFS and the State of California, 
respectively, because they would be overly protective for a national 
BTA requirement; however, they might be appropriate for more sensitive 
species or if required by the Director for a specific case. The Agency 
is also concerned that on a national basis a design intake velocity of 
less than 0.5 ft/s might not be achievable for large-volume 
withdrawals. In addition to a design intake velocity requirement, EPA 
would require new facilities to monitor the head loss across the 
screens or other technology on a quarterly basis. Proposed 
Sec. 125.87(b). EPA is proposing that head loss across the screens (or 
other appropriate measurements for technologies other than intake 
screens) be monitored and correlated with intake velocity once the 
facility is operating.
    The proposed regulation would require that the maximum design 
intake velocity at each cooling water intake structure at a facility be 
no more than 0.5 ft/s. Proposed Secs. 125.84(b)-(e). The design intake 
velocity would be defined as the value assigned during the design phase 
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. This is equivalent to the through-screen or 
through-technology velocity.
    Some stakeholders suggest that mandatory, uniform velocity 
performance requirements are inappropriate as a means of minimizing 
adverse environmental impact because many site- and species-specific 
factors influence both the rate at which a given cooling water intake 
structure impinges aquatic life and the significance of any such 
impingement.
    In particular, these stakeholders suggest that there are sound 
biological reasons why uniform velocity requirements are not 
appropriate. For example, these stakeholders point out that fish swim 
speed varies greatly by species and age of the individual and can also 
be affected by water temperature. Swimming speed is an important factor 
in determining the likelihood of impingement because it is a measure of 
the fishes' ability to escape from the area of the intake. They also 
point out that vertical and horizontal distribution of organisms in the 
water column (which might be linked to natural habitat preferences) 
might influence rates of impingement, as might levels of physiological 
stress that organisms experience before exposure to the cooling water 
intake structure.
    In addition, stakeholders offer that there are hydrological and 
locational reasons why uniform velocity performance standards are not 
appropriate and why velocity standards should be established on a site-
specific basis. For example, the risk of impingement at some locations, 
such as a riverine system, may exhibit a correlation to flow. Moreover, 
the risk of impingement may vary according to seasonal variations in 
flow, which may or may not coincide with the spawning/nursery seasons 
or other times of vulnerability for the potentially affected species. 
Thus, these stakeholders suggest that case-by-case velocity standards, 
that take into account the issues identified above, as opposed to 
mandatory, uniform velocity performance standards, may be a sounder 
approach for limiting impingement.
    The Agency solicits comment on the proposed design intake velocity 
requirement, as well as on the relationship of swimming speed, other 
biological factors, and other elements (in addition to velocity) that 
relate to the risk of impingement. EPA is also considering and requests 
comment on a less stringent requirement such as 1.0 ft/s, and whether 
the requirement should be set based on an approach velocity or the 
through-screen or through-technology velocity. Finally, the Agency 
requests comment on allowing site-specific determinations of velocity 
without establishing a uniform national requirement, as discussed 
above.

[[Page 49089]]

5. Additional Design and Construction Technologies
    EPA is proposing that facilities whose cooling water intake 
structures are located in the littoral zone implement additional design 
and construction technologies that minimize impingement and entrainment 
of fish, eggs, and larvae and maximize survival of impinged adult and 
juvenile fish. Proposed Secs. 125.84(b)-(e). The technologies that 
would need to be implemented are those that (1) minimize impingement 
and entrainment of fish, eggs, and larvae and (2) maximize survival of 
impinged adult and juvenile fish. However, EPA does not propose to 
mandate the use of any specific technology. Although EPA refers to 
those technologies as additional design and construction technologies, 
they are part of the suite of technologies proposed to minimize adverse 
environmental impact and are additional only in the sense that they 
would be required in some circumstances in addition to the technologies 
used to meet the velocity, flow, capacity, or other requirements.
    Technologies that maximize survival of impinged organisms include 
but are not limited to fish-handling systems such as bypass systems, 
fish buckets, fish baskets, fish troughs, fish elevators, fish pumps, 
spray wash systems, and fish sills. These technologies either divert 
organisms away from impingement at the intake structure or collect 
impinged organisms and protect them from further damage so that they 
can be transferred back to the source water at a point removed from the 
facility intake and discharge.
    Technologies that minimize impingement and entrainment of fish, 
eggs, and larvae might include, but are not limited to, technologies 
that reduce intake velocities so that ambient currents can carry the 
organisms past the opening of the cooling water intake structure; 
intake screens, such as fine mesh screens and Gunderbooms, that exclude 
smaller organisms from entering the cooling water intake structure; 
passive intake systems such as wedge wire screens, perforated pipes, 
porous dikes, and artificial filter beds; and diversion and/or 
avoidance systems that guide fish away from the intake before they are 
impinged or entrained.
    EPA is proposing to require additional design and construction 
technologies to protect fish, eggs, and larvae when the cooling water 
intake structure is located inside the littoral zone because this is 
considered a sensitive area where spawning takes place and critical 
habitat is present. Such technologies are available to new facilities 
and further reduce environmental impact resulting from impingement and 
entrainment.
    Because site-specific factors greatly influence the selection among 
various additional design and construction technologies, EPA proposes 
that permit applicants subject to this requirement because of the 
location of their intake structure perform a baseline assessment of the 
biological community at the proposed location of the cooling water 
intake structure and submit to the Director for approval a plan for 
installation and operation of appropriate additional design and 
construction technologies. Proposed Sec. 125.86(b)(6).
    EPA also solicits comment on whether certain minimum technologies 
might be appropriate in virtually all circumstances and should be 
required in final section 316(b) regulations. EPA realizes that this 
approach is a departure from other parts of today's proposal in which 
the Agency specifically refrains from mandating the use of a specific 
technology. However, EPA considers comment on this approach to be 
beneficial. For example, it might be possible to specify that all new 
facilities install additional design and construction technologies, 
such as fine-mesh screens, that in conjunction with the proposed 
velocity requirement would effectively reduce impingement at virtually 
all locations within or near the littoral zone. Alternatively, the 
Agency could establish performance standards based on the use of these 
technologies.
6. What Is the Role of Restoration Measures?
    Restoration measures, as used in the context of section 316(b) 
determinations, include practices that seek to conserve fish or aquatic 
organisms, compensate for the fish or aquatic organisms killed, or 
enhance the aquatic habitat harmed or destroyed by the operation of 
cooling water intake structures. Such measures have been employed in 
some cases in the past as one of several means of fulfilling the 
requirements imposed by section 316(b). Examples of restoration 
measures that have been included as conditions of permits include 
creating, enhancing, or restoring wetlands; developing or operating 
fish hatcheries or fish stocking programs; removing impediments to fish 
migration; enhancing natural resources in an impacted watershed; and 
other projects designed to replace fish or restore habitat.
    Restoration measures have been used, however, on an inconsistent 
and somewhat limited basis. Their role under section 316(b) has never 
been explicitly addressed in EPA regulations or guidance. Restoration 
projects have been undertaken as part of section 316(b) determinations 
predominantly at existing facilities and in permitting actions where 
the cost of the proposed technology was considered to be wholly 
disproportionate to the demonstrated environmental benefits to be 
achieved. Often such cases have involved situations where retrofitting 
with a technology such as cooling towers was under consideration.
    Given the limits on the ability of direct control technologies 
(location, flow, velocity, and other requirements) to eliminate 
environmental harm in all circumstances, EPA is considering a variety 
of mandatory, discretionary, and voluntary regulatory approaches 
involving restoration measures. On the other hand, EPA also is 
considering specifying that restoration measures may not be part of a 
section 316(b) determination. EPA invites comment on the appropriate 
role of restoration, in any, under section 316(b).
a. Mandatory Restoration Approaches
    Under the first approach that the Agency is considering, the use of 
restoration measures would be required as an element of a section 
316(b) determination in all cases except where a new facility's cooling 
water intake structure is located at least 50 meters outside the 
littoral zone in a freshwater river or stream, or outside the littoral 
zone in a lake or reservoir. Locating cooling water intake structures 
in these less productive areas, in conjunction with other applicable 
requirements, generally would minimize adverse environmental impact. 
All other new facilities with cooling water intake structures would be 
required to implement some form of restoration measures in addition to 
implementing direct control technologies to minimize adverse 
environmental impact. Under this approach, new facilities would first 
implement the direct control technologies as specified in this proposed 
rule. They would then develop and implement, in coordination with the 
Director, a restoration plan that would further reduce and offset 
unavoidable impacts that remain after the implementation of direct 
control technologies. This is similar to the mitigation sequence used 
under CWA section 404, wherein environmental impacts are avoided and 
minimized prior to consideration of compensatory mitigation measures. 
The development of restoration measures applicable to a cooling water 
intake structure would focus on the unique situation faced by each 
facility and would allow for review

[[Page 49090]]

and comment by the permitting agency and the public.
    Under this approach, the permit application would define and 
quantify the need for restoration measures by estimating the adverse 
environmental impact that would remain after application of the 
location, design, construction, and capacity requirements specified for 
the type of water body in which the particular cooling water intake 
structure would be located. The permit would contain conditions, 
including a compliance schedule, that would require the permittee to 
develop and implement the approved restoration plan. Applicants would 
then assess alternatives for addressing these impacts and develop a 
draft restoration and monitoring plan for approval by the Director.
    If EPA implemented this approach, it would add language to proposed 
sections 125.84(b)(2), (b)(3), (c)(2), (c)(3), (d)(1), (e)(1), and 
(e)(2) specifying, ``You must implement restoration measures''. 
Language such as the following also would be added to proposed section 
125.86:

    Restoration Measures. If you are required to comply with the 
requirements in Sec. 125.84(b)(2), (b)(3), (c)(2), (c)(3), (d)(1), 
(e)(1), or (e)(2) to implement a restoration measure, you must 
develop a plan based on the results of the Source Water Baseline 
Biological Characterization required by Sec. 125.86(a) and submit 
the plan to the Director for review and approval. The plan should 
document how you propose to implement restoration measures to 
replace organisms or enhance the habitat for the species that will 
be most susceptible to impingement and entrainment by the cooling 
water intake structures. The plan must contain the following:
    (i) A narrative description of proposed restoration measures, 
the impacts from impingement and entrainment expected to remain 
after the measures have been implemented, and the technical basis 
for choosing those restoration measures. Include a discussion of the 
nexus between the estimated impingement and entrainment impacts from 
the cooling water intake structure and the proposed measures.
    (ii) Design and engineering calculations, drawings, maps, and 
costs supporting the proposed restoration measures.

    Beyond this framework, EPA invites comment on the process for 
developing and implementing the restoration plan or the content of a 
plan. The following example illustrates one possible process and set of 
substantive contents. The draft plan could be required to include an 
evaluation component and study that would be submitted to the 
permitting agency and natural resource agencies, and be made available 
to the public, before permit issuance. This draft plan would then be 
distributed to other agencies with relevant expertise for review and 
comment. The public also would be informed of the availability of the 
plan for review and comment. After considering comments provided by 
relevant agencies and the public, the applicant would develop a final 
plan and a response to comment document, which would be submitted to 
the Director for approval. Upon approval, the applicant would implement 
the restoration plan, including providing regular reports to the 
permitting agency and periodically verifying progress toward achieving 
the specific restoration goals included in the plan. The duty to 
develop and implement a restoration plan would be the permit 
applicant's.
    Alternatively, EPA could require facilities to study the extent of 
impingement and entrainment after the actual implementation of direct 
control technologies, and require the development of a draft plan that 
addressed the study results in a manner similar to the approach 
described above.
b. Discretionary Restoration Approaches
    A second approach would provide the Director with the discretion to 
specify appropriate restoration measures under section 316(b), but 
would not require that he or she do so. Under one version of this 
approach, restoration measures would be allowed in permitting new 
facilities only where the facility could demonstrate that the costs 
incurred to implement direct controls exceed a specified cost test. 
(See section VIII.C for discussion of the cost tests that are under 
consideration.) This approach is consistent with several precedents in 
which the permitting authority allowed the use of restoration measures 
where the cost to retrofit an existing facility's cooling water intake 
structures with control technologies was determined to be wholly 
disproportionate to the benefits the control technology would provide 
(e.g., John Sevier, Crystal River, Chalk Point, Salem).\51\
---------------------------------------------------------------------------

    \51\ In re Tennessee Valley Authority John Sevier Steam Plant, 
NPDES Permit No. TN0005436 (1986); In re Florida Power Corp. Crystal 
River Power Plant Units 1, 2 & 3, NPDES Permit FL0000159 (1988); 
Chalk Point, MDE, State of Maryland, Discharge Permit, Potomac 
Electric Power Co., State Discharge Permit No. 81-DP-0627B, NPDES 
Permit No. MD0002658B (1987, modified 1991); Draft NJDEP Permit 
Renewal Including Section 316(a) Variance Determination and Section 
316(b) BTA Decision: NJDEP Permit No. NJ0005622 (1993).
---------------------------------------------------------------------------

    A second version of this approach would allow, but not require, the 
Director to specify restoration measures to reduce the net level of 
impingement and entrainment so that adverse environmental impact caused 
by cooling water intake structures would be minimized. Under this 
approach, the use of restoration measures would supplement the 
imposition of performance requirements and direct controls. The 
performance requirements and direct controls would need to be 
implemented before restoration measures would be imposed.
c. Voluntary Restoration Approaches
    Stakeholders have suggested a third type of restoration approach, 
under which the Director could consider restoration measures proposed 
voluntarily by permit applicants in the context of determining the 
extent to which location, design, and capacity requirements could be 
modified to reflect site-specific conditions while still ensuring that 
adverse environmental impact is minimized. Under this alternative, 
restoration measures could substitute for location, design, and 
capacity requirements, partially or completely, in appropriate cases. 
The need for restoration measures would be determined based on the 
magnitude of the environmental impact associated with the cooling water 
intake structure and the optimal balance between the use of direct 
controls and restoration measures to minimize the impact. Appropriate 
conditions relating to the voluntary restoration measures would be 
included in the permit. Such an approach would be designed to provide 
flexibility to the Director, the regulated community, and other 
interested parties to address the issues posed by cooling water intake 
structures on a site-specific, priority basis. This approach might 
result in incentives for permittees to develop more far-reaching 
projects, potentially providing benefits to a larger portion of a 
watershed and a broader range of aquatic and other species, and for 
longer periods of time.
    Finally, stakeholders also have suggested that voluntary 
restoration measures should be applied to mitigate the effects of 
cooling water intake structures so that there is no basis for a 
determination of adverse environmental impact. They suggest that 
likewise, the statute does not preclude the consideration of the 
anticipated benefits from proposed restoration measures in evaluating 
the extent to which additional technology may be necessary, nor does it 
preclude the consideration of benefits associated with restoration 
measures implemented pursuant to previous permits, together with other 
relevant data, in evaluating whether adverse environmental impact 
currently exists.
    Under any approach, there would be a nexus between the restoration 
measures employed and the adverse

[[Page 49091]]

environmental impact caused by a cooling water intake structure. For 
example, if after implementation of direct control technologies an 
important species in the vicinity of the cooling water intake structure 
continues to be adversely affected by a cooling water intake structure, 
appropriate restoration measures would address the adverse effects on 
that species, perhaps through enhancement of other factors that affect 
the target species' ability to thrive or as a last resort, replacement 
of the fish killed or harmed.
    Restoration plans could potentially use a ``banking'' mechanism 
similar to that used in the CWA section 404 program, that would allow 
the permittee to meet restoration requirements by purchasing 
``credits'' from an approved ``bank.'' For example, should wetlands 
restoration be an appropriate mechanism for offsetting the adverse 
impact from the cooling water intake structure, the permittee could 
purchase credits from an existing wetlands mitigation bank. As in the 
section 404 program, public or private entities could establish and 
operate the banks. EPA views the use of ``banking'' for the purposes of 
this proposed rule as one way to facilitate compliance and reduce the 
burden on the permit applicant, while at the same time potentially 
enhancing the ecological effectiveness of the required restoration 
activities.
    EPA also is considering an approach under which the use of 
restoration measures would not be allowed in section 316(b) permitting 
for new facilities. Critics of mitigation or restoration measures 
argue, among other things, that they are not effective in compensating 
for the specific impingement and entrainment losses caused by cooling 
water intake structures.
    EPA requests comment on all aspects of the restoration approaches 
described in this notice. The Agency does not intend the foregoing 
discussion of restoration measures to affect any existing statutory, 
regulatory, or other legal authorities with respect to the use of 
restoration measures. The Agency also does not intend the foregoing 
discussion to affect any ongoing permit proceedings or previously 
issued permits, which should continue to be governed by existing legal 
authorities. The Agency will address the issue of restoration further 
as it develops the final rule.
7. Additional and Alternative BTA Requirements
    At Sec. 125.84(f), EPA is proposing that the Director have limited, 
discretionary authority to examine certain enumerated site-specific or 
unique characteristics and impose additional section 316(b) 
requirements. Such site-specific conditions would include location of 
multiple cooling water intake structures in the same body of water, 
seasonal variations in the aquatic environment affected by the cooling 
water intake structure controlled by the permit (e.g., seasonal 
spawning or migration of anadromous fishes such as west coast 
salmonids), or the presence of regionally important species (e.g., 
commercially and recreationally valuable species, and fish ecologically 
important to the structure and function of local fish assemblage such 
as important forage species).
    At Sec. 125.84(g), EPA is proposing that the Director must include 
any more stringent requirements relating to the location, design, 
construction, and capacity of a cooling water intake structure at a new 
facility that are necessary to ensure attainment of water quality 
standards, including designated uses, criteria, and antidegradation 
requirements. This proposal is based on section 301(b)(1)(C) of the 
CWA.
    Finally, in developing the nationally applicable minimum 
requirements that are being proposed today, EPA has taken into account 
all the information that it was able to collect, develop, and solicit 
regarding the location, design, construction, and capacity of cooling 
water intake structures at new facilities. EPA concludes that these 
requirements reflect the best technology available for minimizing 
adverse environmental impact on a national level. In some cases, 
however, data that could affect these requirements might not have been 
available or might not have been considered by EPA during the 
development of this proposal. Therefore, the lack of any provision for 
deviation from nationally applicable BTA requirements could lead to 
large numbers of petitions requesting EPA to amend the rule as it 
applies to individual facilities or classes of facilities. This would 
be an extremely time consuming process for EPA, the regulated 
community, and other interested parties. Accordingly, EPA is proposing 
procedures that would allow for adjustment, during permit proceedings, 
of the requirements of Sec. 125.84 as they apply to certain cooling 
water intake structures at new facilities.
    Proposed Sec. 125.85 would allow the Director, in the permit 
development process, to set alternative BTA requirements that are less 
stringent than the nationally applicable requirements. Under 
Sec. 125.85(a), any interested person may request that alternative 
requirements be imposed in the permit. The Director also may propose 
alternative requirements in the draft permit upon making the findings 
indicated. Proposed Sec. 125.85(a)(2) provides that alternative 
requirements that are less stringent than the requirements of 
Sec. 125.84 would be approved only if compliance with the requirement 
at issue would result in compliance costs wholly out of proportion to 
the costs considered during development of the requirement at issue, 
the request is made in accordance with 40 CFR part 124, the alternative 
requirement requested is no less stringent than necessary, and the 
alternative requirement will ensure compliance with sections 208(e) and 
301(b)(1)(C) of the Clean Water Act.
    Because new facilities have a great degree of flexibility in their 
siting, in how their cooling water intake structures are otherwise 
located, and in the design, construction and sizing of the structure, 
cost is the only factor that would justify the imposition of less 
stringent requirements as part of the proposed alternative requirements 
approach. This is because other factors affecting the location, design, 
construction, and capacity of cooling water intake structures at new 
facilities can be addressed by modifications that may have cost 
implications. The Agency notes that in the somewhat analogous case of 
the new source performance standards that EPA establishes for the 
discharge of effluent from new facilities in particular industrial 
categories, alternate discharge standards are not allowed. However, 
because this proposed rule would establish requirements for cooling 
water intake structures at any type of facility in any industrial 
category above the flow threshold proposed today, it might be possible, 
in some instances, that the costs of complying with today's proposed 
requirements would be wholly out of proportion to the costs EPA 
considered and determined to be economically practicable. (See Section 
VIII.C. below, the economic and technical support document, and the 
economic and financial portions of the record for this proposal.) As 
discussed at Section VIII.C., EPA has analyzed the cost of compliance 
with today's proposed requirements for all facilities projected to be 
built in the reasonably foreseeable future, as well as other types of 
facilities that might be built at later dates (such as large base-load 
steam electric generating facilities that do not use combined-cycle 
technology) and concludes that these compliance costs would be 
economically practicable for all types of facilities the Agency

[[Page 49092]]

considered. However, should an individual new facility demonstrate that 
costs of compliance for a new facility would be wholly out of 
proportion to the costs EPA considered and determined to be 
economically practicable, the Director would have authority to adjust 
BTA requirements accordingly.
    Under proposed Sec. 125.85(a), alternative requirements would not 
be granted on any grounds other than the cost of compliance, nor would 
they be granted based on a particular facility's ability to pay for 
technologies that would result in compliance with the requirements of 
Sec. 125.84. Thus, so long as the costs of compliance are not wholly 
out of proportion to the costs EPA considered and determined to be 
economically practicable, the ability of an individual facility to pay 
to attain compliance would not support the imposition of alternative 
requirements. EPA invites comment on whether other factors should be 
added to proposed Sec. 125.85(a). EPA also requests comment on an 
additional basis for establishing alternative, less stringent 
requirements, namely that the costs of compliance would be wholly 
disproportionate to projected environmental benefits. The 1977 Draft 
Guidance includes a similar provision. This wholly disproportionate 
cost test could be provided either instead of, or in addition to, the 
cost test being proposed today as part of Sec. 125.85(a) (i.e., costs 
wholly out of proportion to the costs EPA considered in the rule 
development).
    Proposed Sec. 125.85(a) would specify procedures to be used in the 
establishment of alternative requirements. The burden is on the person 
requesting the alternative requirement to demonstrate that alternative 
requirements should be imposed and that the appropriate requirements of 
Sec. 125.85(a) have been met. The person requesting the alternative 
requirements should refer to all relevant information, including the 
support documents for this rulemaking, all associated data collected 
for use in developing each requirement, and other relevant information 
that is kept on public file by EPA.
    EPA invites comment on all aspects of this proposal for 
establishing alternative BTA requirements.
    Under an alternative approach, EPA would not provide for any 
deviation from the nationally applicable requirements. Some 
stakeholders have stated that the Clean Water Act requires that uniform 
BTA requirements be applicable nationally. Opponents of deviation from 
uniform national BTA requirements also believe that alternative 
requirements are especially inappropriate for new facilities, which 
they believe can be designed and sited to take the requirements of the 
new facility rule into account. EPA also invites comment on this 
alternative approach.
8. Other Approaches Being Considered by EPA
    In addition to or in lieu of today's proposal for alternative BTA 
requirements (discussed above), EPA also is considering an approach 
that would require the Director to consider whether individual 
facilities might have site-specific characteristics that make one or 
more of these national BTA requirements insufficient to minimize 
adverse environmental impact. Such site-specific characteristics might 
include location of multiple cooling water intake structures in the 
same body of water, seasonal variations in the aquatic environment 
affected by the cooling water intake structure controlled by the permit 
(such as seasonal spawning or migration), the presence of regionally 
important aquatic organisms, or other relevant characteristics. If the 
Director determined that one or more of the national requirements does 
not minimize adverse environmental impact, the Director would be 
required to impose such additional measures as might be needed to 
ensure that the facility employs the best technology available for 
minimizing adverse environmental impact. Regulatory language such as 
the following could be used to implement this approach:

    The Director must consider whether individual facilities have 
site-specific characteristics that make one or more of the cooling 
water intake structure BTA requirements in Sec. 125.84(a)-(e) 
insufficient to minimize adverse environmental impact. If the 
Director finds that the requirements of Sec. 125.84(a)-(e) are 
insufficient to ensure that adverse environmental impact caused by a 
cooling water intake structure at a new facility will be minimized, 
he may impose additional requirements in the permit that are 
reasonably necessary to minimize adverse environmental impact.

    EPA also is considering an approach under which the Director would 
have broad, discretionary authority to include permit conditions under 
section 316(b), in addition to the minimum requirements specified in 
today's proposal, that are reasonably necessary to minimize adverse 
environmental impact caused by a cooling water intake structure. The 
Director would not impose additional requirements if none are 
considered necessary; however, if a Director determines that the 
minimum requirements described above are not sufficient to minimize the 
specific adverse environmental impact associated with a particular 
cooling water intake structure, he or she would be authorized to 
include appropriate additional conditions in the permit or to deny the 
permit as warranted. This differs from the previous alternative in that 
under this alternative the Director would not be required to impose 
more stringent conditions. Also, in comparison to the proposed 
Sec. 125.84(f), this approach would not provide a permit applicant with 
as much information to judge whether the Director is likely to impose 
additional requirements because the list of conditions the Director 
could consider would not be limited and enumerated. On the other hand, 
this approach would provide the Director with authority under this 
proposed rule to consider other unique and/or site-specific 
characteristics that might be important at a particular location to 
ensure that adverse environmental impact is minimized.
    Finally, EPA is considering an approach under which the Director 
would have no section 316(b) authority to examine site-specific 
conditions and impose additional section 316(b) requirements. The 
Agency invites comment on each of these approaches to today's proposal 
and on the characteristics that a Director would consider in 
determining whether to impose additional section 316(b) requirements.
    As discussed in item 7 above, today's proposal would allow the 
Director to specify alternative BTA requirements in limited 
circumstances. In addition, EPA is considering a variance alternative 
based on the use of innovative cooling water intake structure design 
and operation to minimize adverse environmental impact. The Agency is 
aware that existing and new facilities are using various designs for 
cooling water intake structures, which consist of passive and other 
innovative intake systems that use natural flow, gravity, some type of 
natural or artificial barrier, or some other feature to reduce 
impingement and entrainment. Examples include artificial filter beds, 
radial wells, porous dikes, and perforated pipes. (Because of inherent 
limitations, these designs might not work effectively at all 
facilities, such as high-flow facilities.) In some cases facilities 
that use these types of intakes can minimize their rates of impingement 
and entrainment to levels commensurate with those achieved under this 
proposed rule at a lower cost than conventional technologies would

[[Page 49093]]

allow, yet these facilities might not meet all of the minimum 
requirements EPA is proposing. This approach would encourage the use of 
innovative technologies provided that such technologies minimize 
adverse environmental impact. If EPA implemented this approach, 
language such as the following could be added to the regulation:

    In the case of any new facility that proposes to design or 
operate a cooling water intake structure in an innovative manner 
(for example, by using natural flow, gravity, a natural or 
artificial barrier, or other innovative feature to reduce 
impingement and entrainment), the Director may impose requirements 
in the permit based on the use of the innovative design feature or 
method of operation in place of the requirements specified in 
Sec. 125.84(a)-(e), if the Director determines (1) that the 
alternative requirements will minimize impingement and entrainment 
of aquatic organisms to a level commensurate with the level that 
would be attained if the facility were subject to the requirements 
specified in Sec. 125.84(a)-(e), and (2) that the innovative design 
feature or method of operation has the potential for industry-wide 
operation.

    This option could also include a requirement for consultation with, 
or approval by, the Administrator.
    EPA requests comment on these approaches. In particular, EPA 
requests comment on (1) whether the new facility rule should provide 
for any type of variance from the national BTA requirements or the 
proposed, limited opportunity to specify alternative BTA requirements; 
(2) the factors that should be considered in any such variance; (3) how 
BTA requirements based on the use of innovative technologies could be 
structured to encourage technological innovation and ensure that 
qualifying facilities would minimize adverse environmental impact; and 
(4) whether there is a design intake volume above which a variance for 
use of innovative technologies should not be available.

B. What Technologies Can Be Used To Meet the Regulatory Requirements?

    EPA has identified a number of intake technologies available for 
installation at cooling water intake structures to minimize adverse 
environmental impact. The intake technologies identified include some 
that are currently in use at facilities with cooling water intake 
structures in the United States and some that are still being evaluated 
or simply not in use at any facilities in the United States. The intake 
technologies can be classified into four categories:
     Intake Screen Systems: single-entry, single-exit vertical 
traveling screens; modified traveling screens (ristroph screens); 
single-entry, single-exit inclined traveling screens; single-entry, 
double-exit vertical traveling screens; double-entry, single-exit 
vertical traveling screens (dual-flow screens); horizontal traveling 
screens; fine mesh screens mounted on traveling screens; horizontal 
drum screens; vertical drum screens; rotating disk screens; and fixed 
screens.
     Passive Intake Systems: wedge-wire screens, perforated 
pipes, perforated plates, porous dikes, artificial filter beds, and 
leaky dams.
     Diversion or Avoidance Systems: louvers, velocity caps, 
barrier nets, air bubble barriers, electrical barriers, light barriers, 
sound barriers, cable and chain barriers, and water jet curtains.
     Fish Handling Systems: fish pumps, lift baskets, fish 
bypasses, fish baskets, fish returns, fish troughs, and screen washes.
    Under the proposed rule, facilities would be required to submit a 
plan that contains information on the technologies they propose to 
implement based on the result of a Source Water Baseline 
Characteristics study (see Section IX.A.1). Each of the methods 
identified above is discussed in further detail below. Technologies 
other than bar racks and traveling screens are typically used only by 
traditional steam electric utility power plants. For a more detailed 
description of the following technologies, refer to Preliminary 
Regulatory Development Section 316(b) of the Clean Water Act, 
Background Paper 3: Cooling Water Intake Technologies (April 1994) and 
Supplement to Background Paper 3: Cooling Water Intake Technologies 
(September 30, 1996) in the docket for today's proposed rule.
1. Intake Screen Systems
    The technologies classified as intake screen systems are mainly 
devices that screen debris mechanically. Passive intake systems 
discussed in the next section, require little or no mechanical 
activity.
    EPA has classified the following intake technologies as intake 
screen systems: single-entry, single-exit vertical traveling screens; 
modified traveling screens (ristroph screens); single-entry, single-
exit inclined traveling screens; single-entry, double-exit vertical 
traveling screens; double-entry, single-exit vertical traveling screens 
(dual-flow screens); horizontal traveling screens; fine mesh screens 
mounted on traveling screens; horizontal drum screens; vertical drum 
screens; rotating disk screens; and fixed screens.
    Intake screen systems have been found to be limited in their 
ability to minimize adverse aquatic impact. This does not mean that 
they do not aid in reducing some impingement and entrainment of adult 
and juvenile fish. However, conventional traveling screens (the most 
widely used screening device in the United States) and most of the 
other types of traveling screens have been installed mainly for their 
ability to prevent debris from entering the cooling system. Fish 
impinged on those screens often suffocate or are injured when washed 
off the screen. They may or may not even be returned to the water body. 
In many cases, many of the fish are lost; in some cases, all of the 
fish are lost.
    Conventional through-flow traveling screens have been modified so 
that fish impinged on the screens can be removed with reduced stress 
and mortality. These modified traveling screens have been shown to be 
more effective than conventional screens at lowering fish impingement 
and mortality at several locations. Some facilities have used fine mesh 
mounted on traveling screens to minimize entrainment. However, the 
amount of reduction attributable to any of these devices has been found 
to depend on the species involved, the water body type, and the age or 
size of the species present.
2. Passive Intake Systems (Physical Exclusion Devices)
    Passive intake systems are devices that screen out debris and biota 
with little or no mechanical activity required. Most of these systems 
are based on achieving very low withdrawal velocities at the screening 
media so that all but free-floating organisms avoid the intake 
altogether.
    EPA considers the following intake technologies to be passive 
intake systems (i.e., physical exclusion devices): wedge-wire screens, 
perforated pipes, perforated plates, porous dikes, artificial filter 
beds, Gunderbooms, and leaky dams.
    Wedge-wire screens appear to offer a potentially effective means of 
reducing fish losses. Testing of wedge-wire screens has demonstrated 
that fish impingement is virtually eliminated and that entrainment of 
fish eggs and larvae is reduced. However, the application of wedge-wire 
screens is limited to cooling water intake structures that withdraw 
lower volumes because of size limitations of the screens themselves. In 
fact, physical size is the limiting factor of most passive systems, 
thus requiring the clustering of a number of screening units. 
Siltation, biofouling, and frazil ice also limit locations where 
passive intake systems can be used. In addition, most of the research 
for the reduction of

[[Page 49094]]

entrainment has concentrated on the intake of relatively small 
quantities of water, in the range of 28 to 56 million gallons per day, 
typical of the make-up water supply of large closed-cycle recirculating 
cooling water systems and of nuclear power plant service water systems.
3. Diversion or Avoidance Systems
    Diversion or avoidance devices are also called behavioral barriers. 
These devices are designed to take advantage of the natural behavioral 
patterns of fish so that the fish will not enter an intake structure. 
Diversion devices either guide aquatic organisms such as fish, crabs, 
and shrimp away from an intake structure or guide them into a bypass 
system so that they are directed or physically removed from the intake 
area. An example of a diversion device is the louver. Avoidance 
devices, on the other hand, are used to make the intake unattractive to 
aquatic organisms so that they avoid the area of the intake altogether. 
Sound barriers are a typical avoidance device. They create sounds that 
the aquatic organisms do not like, forcing them to avoid the intake 
area. Unlike the screening and physical exclusion devices already 
discussed, behavioral barriers are used specifically to keep fish and 
other motile organisms from entering the intake system. Like the 
technologies discussed above, these devices are not always used to 
protect fish and organisms. They might be used to protect equipment at 
the facility that could become fouled and require more maintenance if 
aquatic organisms are allowed to enter the intake.
    EPA considers the following intake technologies to be fish 
diversion and avoidance systems: louvers, velocity caps, barrier nets, 
air bubble barriers, electrical barriers, light barriers, sound 
barriers, cable and chain barriers, and water jet curtains.
    Diversion or avoidance systems do not protect organisms or fish 
that are nonmotile (i.e., those that are free-floating or cannot move 
themselves about) or in early life stages because they rely on 
behavioral characteristics. Therefore, the effectiveness and 
performance of the devices are species-specific. In addition, many of 
the diversion or avoidance devices are appropriate only for seasonal 
entrainment problems. To evaluate the applicability of these 
technologies, site-specific testing would be required at most sites 
where these devices are to be used.
4. Fish-Handling Systems and Other Technologies
    Fish-handling systems and other technologies are used alone or in 
conjunction with screening systems for the protection of aquatic life. 
EPA considers the following intake technologies to be fish-handling 
systems: fish pumps, lift baskets, fish bypasses, fish baskets, fish 
returns, fish troughs, and screen washes. These technologies can be 
used alone or in a series such as fish buckets, fish troughs, and a 
spray wash system. Fish-handling technologies are used to remove fish 
that congregate in front of a screen system or to divert them to 
holding areas. Fish that congregate near screens are removed from the 
area by fish pumps, lift baskets, fish troughs, and fish returns and 
are returned to open waters, reducing impacts on the aquatic community.

C. How Is Cost Being Considered in Establishing BTA for New Facilities?

    For today's proposed rule, EPA has considered four cost tests that 
could be used to evaluate the costs that would be associated with this 
proposal are reasonable in relation to the environmental benefits to be 
derived. The Agency used one of these tests as a basis for determining 
on a national level that the proposed requirements would be 
economically practicable.
    Although section 316(b) does not explicitly state that costs must 
be considered in determining appropriate cooling water intake structure 
controls, 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). The 
1976 preamble also noted that 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.'' \52\ This position reflects 
congressional concern that the application of best technology available 
should not impose an impracticable and unbearable economic burden.
---------------------------------------------------------------------------

    \52\ 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).
---------------------------------------------------------------------------

    EPA concludes that a formal cost test is appropriate in determining 
``best technology available commercially at an economically practicable 
cost.'' In determining the most appropriate cost test, the Agency 
considered (1) the wholly disproportionate cost test, (2) the 
compliance cost/revenue test, (3) the compliance cost/construction cost 
test, and (4) the compliance cost/discounted cash flow test. EPA also 
considered two methods for implementing these cost tests: a case-by-
case or a national determination.
    Under the wholly disproportionate cost test, a cooling water intake 
structure technology would not be deemed to reflect BTA if the 
incremental costs of requiring the use of that technology are wholly 
disproportionate to the environmental benefits to be gained through its 
use. Several section 316(b) administrative decisions have stated that 
this test is the most appropriate for determining economic burden.\53\ 
This is also the approach adopted discussed in the 1977 Draft Guidance.
---------------------------------------------------------------------------

    \53\ See, In the Matter of Public Service Company of New 
Hampshire, 10 MRC 1257 (6/10/77)(The Seabrook II Decision); 
Brunswick I, Region IV, EPA 3 (Nov. 7, 1977) (Initial Decision re: 
Permit No. NC007064); In re Tennessee Valley Authority, John Sevier 
Steam Plant: NPDES Permit No. TN0005436 (Jan. 23, 1986); In re 
Florida Power Corp., Crystal River Power Plant Units 1, 2, & 3:NPDES 
Permit No. FL0000159 (Sept. 1, 1988).
---------------------------------------------------------------------------

    Historically, the cases in which costs have been determined to be 
wholly disproportionate have involved existing facilities that have 
been required to retrofit their cooling water intake structures to 
implement BTA. Given the characteristics of the regulated industries, 
such retrofitting to meet BTA often meant requiring the installation of 
cooling towers along with necessary modifications to the plant and 
significant capital expenditures and down time required for 
installation. In contrast, new facilities would not incur retrofit 
costs. Rather, new facilities would incur only the cost of any 
incremental difference between their planned cooling water intake 
structure technology and that required under a rule based on today's 
proposal. Given that many new facilities are designing their cooling 
water intake structures in a manner consistent with today's proposed 
BTA requirements, EPA concludes that these incremental costs are 
unlikely to be large.
    A limitation of using the wholly disproportionate test for new 
facilities, on either a national or case-by-case basis, is that the 
impingement and entrainment estimated before a facility is built can be 
very imprecise. There are numerous documented cases among existing 
facilities in which the rates of

[[Page 49095]]

impingement and entrainment rates predicted by the facility were 
substantially lower than the impingement and entrainment that actually 
occurred during operation. Brayton Point is an example of the 
underestimation of impacts that can occur.\54\ Because of the 
difficulty in prospectively estimating impingement and entrainment 
rates at new facilities, EPA has chosen not to use the wholly 
disproportionate cost test to estimate the impact of today's proposal.
---------------------------------------------------------------------------

    \54\ Mark Gibson, ``Comparison of Trends in the Finfish 
Assemblages of Mt. Hope Bay and Narragansett Bay in Relation to 
Operations of the New England Power Brayton Point Station,'' Rhode 
Island Division Fish and Wildlife, Marine Fisheries Office, June 
1995 and revised August 1996.
---------------------------------------------------------------------------

    EPA also considered three economic achievability tests. First, EPA 
considered a compliance cost/revenue test to assess economic 
achievability by comparing the magnitude of annualized compliance costs 
with the revenues the facility is expected to generate. This is an 
appealing test because it compares the cost of reducing adverse 
environmental impact from the operation of the facility with the 
economic value (i.e., revenue) the facility creates. Under this 
alternative, EPA would establish a threshold to identify when annual 
compliance costs constitute a disproportionate percentage of projected 
annual income. This test could be implemented on a national or case-by-
case basis because a firm should have an estimate of expected revenues 
when it applies for a loan to build a new facility.
    EPA also considered a compliance cost/construction cost test to 
assess economic impacts associated with complying with this proposed 
rule. This test compares compliance costs with the capital costs of 
building the facility. Compliance costs would include all those costs 
incurred by new facilities to meet the requirements of the proposed 
rule. The compliance cost/construction test is appealing because it 
shows the percentage increase in the total cost of getting the facility 
operational as a result of the section 316(b) regulations, providing a 
perspective on the relative magnitude of compliance requirements. Under 
this alternative EPA would establish standards that identify when 
initial section 316(b) compliance costs constitute a disproportionate 
percentage of total facility construction costs. This test has the 
advantage of being easy to perform on a case-by-case basis because it 
is based on engineering and construction costs and therefore is more 
precise than the other tests such as the discounted cash flow test. On 
the other hand, there are drawbacks to applying this test nationally. 
Information on average construction costs of new electric generating 
facilities is available from the Energy Information Administration 
(EIA), but this information is not available for other industries nor 
is it transferable across industries. Additional site-specific 
information on construction costs for planned cooling water intake 
structure generators is available from public sources. However, there 
are considerable inconsistencies in what components of capital costs 
are reported. As with Energy Information Administration-reported 
average construction costs, this information is generally available 
only for new steam electric generating facilities, not for other 
manufacturing facilities.
    The final alternative EPA considered is a compliance cost/
discounted cash flow test to determine economic achievability. 
Discounted cash flow is present discounted value of future cash flow. 
This test is useful because it examines the effects of compliance with 
today's proposed rule on the facility's cash flow. Although a 
discounted cash flow test can be performed for existing facilities, on 
both a national and case-by-case basis, this test is not appropriate 
for new facilities because of a lack of available data and the analytic 
requirements it would impose. Because new facilities do not have a cash 
flow prior to operations, this test would require more estimation and 
would be far less precise than the other tests.
    EPA used the compliance cost/revenue test to determine whether 
today's proposed section 316(b) requirements are economically 
practicable. This test uses the ratio of annualized compliance costs to 
estimated annual revenues to assess impacts on new facilities. The 
Agency is proposing this as the most appropriate test to evaluate 
economic practicability for several reasons. First, EPA has extensive 
experience using this test. For example, under the Regulatory 
Flexibility Act, the Agency uses this test as a screening tool (along 
with the number of facilities expected to be affected) to determine 
whether a detailed analysis of impacts on small entities is necessary. 
EPA also frequently uses this test to evaluate economic impacts in the 
effluent guidelines program. Second, the data needed to perform the 
test are available or can be readily projected, whereas the data 
required to conduct the compliance cost/construction cost test and the 
compliance cost/discounted cash flow test are not available or are more 
difficult to obtain. Third, this test provides a reliable measure of 
whether costs are ``economically practicable.''
    EPA calculated compliance costs for projected new steam electric 
generating and manufacturing facilities and applied screening tests to 
assess the impacts of those costs on the economic viability of the new 
facilities. The results of EPA's economic impact analysis indicate that 
the compliance costs of this proposal are generally small compared with 
the estimated revenues of the affected facilities, ranging from 0.1 
percent to 4.2 percent of revenues for steam electric generating 
facilities and less than 0.1 percent to 8.8 percent of revenues for 
manufacturing facilities. Only two of the 35 projected new 
manufacturing facilities were estimated to incur annualized compliance 
costs greater than one percent of annual revenues. For steam electric 
generating facilities, EPA also found that compliance costs as a 
percent of construction costs are small. The total capital costs and 
cost of initial permitting for steam electric generating facilities 
ranged between less than 0.1 percent to 0.3 percent of the overall cost 
of plant construction. These results indicate that the proposed 
requirements are economically practicable, and are achievable by the 
affected new facilities.
    The Agency also has determined that the proposed rule would not 
have an adverse economic impact on industry as a whole. EPA finds that 
the proposed rule is economically practicable and achievable nationally 
because a very small percentage of facilities are expected to be 
affected by the regulation and the impact on those that would be 
affected would be small.
    The electricity generating industry would not be significantly 
affected by today's proposal. Today's proposed rule only affects 
electric generating facilities that generate electricity with a steam 
prime mover. Although these facilities constitute approximately 75 
percent of the total electric generating industry, approximately 88 
percent of the new facilities that do have a steam-electric prime mover 
and for which EPA was able to obtain cooling water information would 
not be subject to this regulation because they do not withdraw cooling 
water from waters of the U.S. or because they are not required to have 
an NPDES permit. In general, the Agency concludes that economic impacts 
on the electric generating industry from this proposed rule would be 
economically practicable because facilities required to comply with the 
proposed requirements would have the opportunity to be redesigned to 
avoid or minimize costs.
    The costs to new manufacturing facilities also would not be 
significantly

[[Page 49096]]

affected by today's proposed regulation also would be economically 
practicable. An analysis of the data collected using the Agency's 
section 316(b) Industry Screener Questionnaire indicates that in the 
industry sectors with at least one new facility that is subject to this 
proposed rule, only 364 of the 2,037 existing facilities targeted, or 
17.8 percent, have an NPDES permit and directly withdraw cooling water 
from waters of the U.S. Of these 364 facilities, only 232 facilities 
are estimated to withdraw more than two (2) MGD. In addition, new 
facilities can be expected to have less costly alternatives for 
complying with the proposed rule than would existing facilities for 
which location, design, construction, and capacity decisions have 
already been made . Existing facilities might require retrofitting if 
subject to the same requirements proposed today.
    As discussed above, the Agency evaluated the costs and impacts of 
the section 316(b) requirements proposed today on a national level. The 
Agency has determined that the incremental costs of installing the BTA 
requirements proposed today are economically practicable at a national 
level, although EPA recognizes that costs could be significant for 
individual facilities. EPA believes that evaluating costs and impacts 
on a national level is most appropriate for a proposed rule that 
establishes minimum section 316(b) requirements for large numbers of 
new facilities nationally. This approach at a national level would 
significantly reduce the burden on permit writers because they would 
then not be required to implement a cost test when developing 
appropriate permit conditions to implement the proposed national 
requirements on a facility-specific basis. However, as noted above, EPA 
is also requesting comment on several regulatory options under which 
costs and benefits could be considered on a case-by-case basis in 
determining BTA.
    EPA invites comment on all aspects of the proposed cost test and 
the Agency's proposal to assess the impact of today's proposed rule on 
a national level.

IX. Implementation

    Under the proposed rule, section 316(b) requirements would be 
implemented in an NPDES permit. The regulations would establish 
application, monitoring, recordkeeping, and reporting requirements for 
new facilities. The proposed rule would also include requirements for 
Directors in developing NPDES permits for new facilities. The proposed 
rule states that the Director, at a minimum, must include in the permit 
the cooling water intake structure requirements at Sec. 125.84, 
monitoring conditions at Sec. 125.87, and recordkeeping and reporting 
requirements at Sec. 125.88.
    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, additional technology plans, and the 
recordkeeping and reporting requirements in these regulations.

A. What Information Must I Submit to the Director When I Apply for My 
New or Reissued NPDES Permit?

    The NPDES application process under 40 CFR 122.21 requires that 
facilities submit information and data 180 days prior to the 
commencement of a discharge. If you are the owner or operator of a 
facility that meets the new facility definition, you would be required 
to submit the information required under Sec. 125.86 of today's 
proposed rule with your initial permit application and with subsequent 
applications for permit reissuance. The Director would review the 
information you provide and, based on the approach discussed in Section 
IX.B, would determine whether your facility is a new facility and 
establish the appropriate requirements to be applied to the cooling 
water intake structure(s).
    Today's proposal would require you to submit four categories of 
information when you apply or reapply for your NPDES permit: (1) 
Results of the Source Water Baseline Biological Characterization study; 
(2) source water physical data; (3) cooling water intake structure 
velocity and flow data; and (4) data to show compliance with the flow 
requirements, velocity requirement, flow reduction requirement, and 
additional technology requirements. In addition, if you are seeking an 
alternative requirement under Sec. 125.85, you must submit a fifth 
item: Data that demonstrate that your compliance costs are wholly out 
of proportion to the costs considered by EPA in establishing by EPA in 
establishing the requirements of Sec. 125.84(a) through (e). You must 
begin to collect data for the Source Water Baseline Biological 
Characterization study at least 1 year prior to submitting your 
application to the Director. If you are required to submit a sample 
plan (i.e., your cooling water intake structure is located inside or 
less than 50 meters outside the littoral zone of the water body), you 
must submit your sample plan for review and approval or disapproval to 
the Director at least 90 days before any sampling activities are 
scheduled to begin. An example schedule of when the activities 
associated with a facility's permit application might be performed is 
provided in Exhibit 2.

     EXHIBIT 2.--Example of Schedule for Permit Application Activity
------------------------------------------------------------------------
                                             Days prior to commencement
     NPDES permit application activity              of operation
------------------------------------------------------------------------
Submit sampling plan for Source Water       635
 Baseline Biological Characterization.
Begin sampling for Source Water Baseline    545
 Biological Characterization.
Submit permit application.................  180
------------------------------------------------------------------------

1. Source Water Baseline Biological Characterization Data
    Proposed Sec. 125.86(a) would require baseline ambient biological 
data in the form of a Source Water Baseline Biological 
Characterization. This study would establish an initial baseline for 
evaluating potential impact from the cooling water intake structure 
before the start of operation. In addition, you would be required to 
reevaluate the study and perform additional ambient monitoring before 
submitting an application for the reissuance of the permit to establish 
or reestablish the baseline for the next permit term. The Director 
would use the study to identify the species most susceptible to 
impingement and entrainment, their life stages, their abundance in the 
source water, and their environmental requirements and habitat.
    Proposed Sec. 125.86(a) also would require you to submit the 
results of a Source Water Baseline Biological Characterization at the 
time of your NPDES permit application. As part of the Source Water 
Baseline Biological Characterization, if you must implement additional 
design and construction technologies, you would be required to collect 
data over a period of one year. Before you start any sampling for the 
study, you would be required to submit a sampling plan to the Director 
for review and approval. The proposed rule would require you to submit 
the sampling plan 90 days before you intend to start the study. You are 
encouraged to make the sampling plan available to the following 
entities for review and comment: Federal agencies such as the U.S. Fish 
and Wildlife Service, the National Marine Fisheries

[[Page 49097]]

Service, and the U.S. Army Corps of Engineers; appropriate State fish 
and wildlife agencies; local fish and wildlife organizations or 
advocacy groups; and the public. If such coordination and public 
involvement is conducted, you should identify and indicate the results 
of this effort in your application submission to the Director. Public 
involvement in developing the sampling plan would facilitate the 
Director's review and approval of the plan.
    In addition, Sec. 125.86(a)(3) would require that you identify all 
threatened and endangered species that might be susceptible to 
impingement and entrainment. The Director might coordinate a review of 
your list with the U.S. Fish and Wildlife Service and/or National 
Marine Fisheries Service staff to ensure that potential impacts to 
threatened and endangered species have been addressed.
    The study would begin with a site-specific, preoperational baseline 
assessment to determine the presence of fish and shellfish (eggs, 
larvae, post larvae, juveniles, and adults) in the surface water 
serving the cooling water intake structure. Their presence during the 
course of a year would need to be documented in terms of the kinds, 
numbers, life stages, and duration of occurrence in the source water in 
close proximity to the proposed location of the cooling water intake 
structure. This information would identify the community of fish and 
shellfish that would potentially be subject to impingement and 
entrainment effects. Information supporting this documentation would 
likely be derived from new, site-specific studies and possibly from 
historical records applicable to the water body serving the proposed 
cooling water intake structure. In all cases, the data to be used would 
need to be appropriately certified through established quality 
assurance procedures.
    The Source Water Baseline Biological Characterization would serve 
two purposes. First, the Director would use the study to identify 
species and their relative numbers potentially subject to intake 
effects following implementation of the location, flow, and velocity 
requirements. Then during each permit reissuance cycle, the Director 
would compare the preoperational ambient data with the post operational 
data to evaluate the efficacy of the location, flow, and velocity 
requirements. Second, when the cooling water intake structure is 
located in the more sensitive area of a water body, the Director would 
use the findings of the Source Water Baseline Biological 
Characterization study to define the need for additional design and 
construction technologies.
    One source of information is past entrainment and impingement 
assessments prepared by other facilities using the same water source 
for cooling purposes. These studies can potentially provide a wealth of 
information regarding sampling strategies, species that might already 
be affected by intake effects, and trends in species mix and relative 
abundance. In the Economic and Engineering Analysis of the proposed 
Sec. 316 New Facility Rule, EPA has estimated a cost of approximately 
$32,000 per facility for all activities, including monitoring and 
capital and O & M costs associated with the Source Water Baseline 
Biological Characterization. EPA is aware that facilities have 
typically spent considerably more than this on studies to support site-
specific section 316(b) determinations in the past. However, EPA 
expects that the Baseline Characterization Study required in the 
proposed rule would generally be less comprehensive (and thus less 
expensive) that section 316(b) studies that have been conducted in the 
past because the scope and level of detail required in the Baseline 
Characterization Study is more limited that studies typically 
submitted. EPA requests comment on its projected costs for the Baseline 
Characterization.
2. Source Water Physical Data
    Proposed section 125.86(b)(1) would require you to provide source 
water information to the Director. The Director would use the source 
water data to evaluate the potential impact on the water body in which 
the intake structure is located. Depending on its location in the 
source water and the source water type, the intake structure would 
affect different species or life stages. For example, intakes located 
in the littoral zone are more likely to affect spawning and nursery 
areas, whereas intakes located offshore are more likely to affect 
migratory routes. In addition, the proximity of the intake structures 
to sensitive aquatic ecological areas might result in potential adverse 
environmental impact. Source water information that you would be 
required to submit includes a description and a drawing of the physical 
configurations of the source water body where the cooling water intake 
structure is located, source water flow or volume data, and 
documentation delineating the littoral zone, such as submerged 
vegetation and substrate data, for the water body in relation to each 
cooling water intake structure.
    Your documentation supporting the littoral zone determination 
should include light penetration and hydromorphological data, submerged 
aquatic vegetation data, and substrate data. You may measure littoral 
zones through transects perpendicular to shore to identify the point of 
transition between the littoral and deeper (e.g., profundal) portions 
of the waterbody. A minimum of three transects would be established, 
with one at the proposed intake location, one upstream within the area 
of influence, and one downstream of the proposed intake in the area of 
influence. The first, and most important, criterion of the littoral 
zone boundary is where light penetration is not sufficient to support 
submerged aquatic vegetation. A photometer to measure incident light or 
a Secchi disk to make visual observations can provide rapid 
measurements along the transects. Depth can be readily measured with a 
fathometer or weighted line calibrated in meters. These two 
measurements will provide information on whether light reaches the 
bottom to support vegetation growth and whether the slope of the bottom 
changes dramatically enough to indicate an abrupt end to the littoral 
zone. A change in substrate composition sometimes occurs as the 
littoral zone ends. Therefore, grab samples can be taken along the 
transects and evaluated for substrate composition (e.g., gravel, sand, 
silt, clay). After you delineate the littoral zone, the last step in 
this process is to determine where the cooling water intake structure 
is located in relation to the littoral zone.
3. Cooling Water Intake Structure Velocity and Flow Data
    Proposed section 125.86(b)(2) would require you to submit 
information on the intake structure and to provide a water balance 
diagram for your facility. The Director would use this information to 
evaluate the potential for impingement and entrainment of aquatic 
organisms. The design of the intake structure and the location in the 
water column would allow the Director to evaluate which of the 
requirements in today's proposed rule apply to the facility (for 
example, design intake velocity, flow rate, and location relative to 
the littoral zone). The water balance diagram provides the Director 
with a complete accounting of the flow in and out of the facility. A 
water balance diagram is the most effective tool to evaluate the water 
use patterns at a facility and to determine water used for cooling 
purposes, makeup, and processes.
    To demonstrate your design velocity, you would need to provide to 
the

[[Page 49098]]

Director the engineering calculations you used to calculate your 
velocity.
    If your facility is located on a freshwater river or stream, you 
would need to provide calculations that demonstrate that you meet the 
flow requirements for both the mean annual flow and the 7Q10 flow. The 
7Q10 flow is the lowest average seven-consecutive-day low flow with an 
average recurrence frequency of once in 10 years determined 
hydrologically. If your facility is located on an estuary or a tidal 
river, you would need to calculate the tidal excursion and provide the 
flow data for your facility and the supporting calculations.
    The tidal excursion distance can be computed using three different 
methods ranging from simple to complex. The simple method involves 
using available tidal velocities that can be obtained from the Tidal 
Current Tables formerly published by the National Ocean Service of the 
National Oceanic and Atmospheric Administration (NOAA) and currently 
printed and distributed by private companies (available at book stores 
or marine supply stores). The mid-range method involves computing the 
tidal excursion distance using the Tidal Prism Method.\55\ The complex 
method involves the use of a 2-dimensional or 3-dimensional 
hydrodynamic model. The simplest method to use is the following:
---------------------------------------------------------------------------

    \55\ E. Diana, A.Y. Kuo. B.J. Neilson, C.F. Cerco, and P.V. 
Hyer. Tidal Prism Model Manual, Virginia Institute of Marine 
Science, Gloucester Point, VA, January 1987.
---------------------------------------------------------------------------

    (1) Locate the facility on either a NOAA nautical chart or a base 
map created from the USGS 1:100,000 scale Digital Line Graph (DLG) data 
available from the USGS Internet web site. These DLG Data can be 
imported into a computer-aided design (CAD)-based program or geographic 
information system (GIS). If these tools are unavailable, 1:100,000 
scale topographic maps (USGS) can be used.
    (2) Obtain maximum flood and ebb velocities (in meters per second) 
for the water body in the area of the cooling water intake structure 
from NOAA Tidal Current Tables.
    (3) Calculate average flood and ebb velocities (in meters per 
second) over the entire flood or ebb cycle using the maximum flow and 
ebb velocities from 2 above.

[GRAPHIC] [TIFF OMITTED] TP10AU00.001

[GRAPHIC] [TIFF OMITTED] TP10AU00.002

    (4) Calculate the flood and ebb tidal excursion distance using the 
average flood and ebb velocities from 3 above.
[GRAPHIC] [TIFF OMITTED] TP10AU00.003

[GRAPHIC] [TIFF OMITTED] TP10AU00.004

    (5) Using the total of the flood and ebb distances from above, 
define the diameter of a circle that is centered over the opening of 
the cooling water intake structure.
    (6) Define the area of the water body that falls within the area of 
the circle (see Appendix 3 to Preamble). The area of the water body, if 
smaller than the total area of the circle might be determined either by 
using a planimeter or by digitizing the area of the water body using a 
CAD-based program or GIS.
    For cooling water intake structures located offshore in large water 
bodies, the area of the water body might equal the entire area of the 
circle (see D in Appendix 3 to Preamble). For cooling water intake 
structures located flush with the shoreline, the area might be 
essentially a semicircle (see C in Appendix 3 to Preamble). For cooling 
water intake structures located in the upper reaches of a tidal river, 
the area might be some smaller portion of the area of the circle (see A 
in Appendix 3 to Preamble).
    (7) Calculate the average depth of the water body area defined in 6 
above. Depths can easily be obtained from bathymetric or nautical 
charts available from NOAA. In many areas, depths are available in 
digital form.
    (8) Calculate a volume by multiplying the area of the water body 
defined in 5 by the average depth from 7. Alternatively, the actual 
volume can be calculated directly with a GIS system using digital 
bathymetric data for the defined area.
    The Director would use the facility's water balance diagram to 
identify the proportion of intake water used for cooling, makeup, and 
process water. A simplified water balance diagram that gives a complete 
picture of the total flow in and out of the facility would allow the 
Director to evaluate compliance with the flow reduction requirements.
4. Data To Show Compliance With the Flow Requirements, Velocity 
Requirement, Flow Reduction Requirement, and Additional Design and 
Construction Technology Requirement
    Today's proposal at Sec. 125.86(b) (3) through (6) would require 
you to provide information on additional operating procedures, 
technologies, and plans to demonstrate compliance with the applicable 
requirements set forth in today's proposed rule. You would be required 
to provide to the Director a plan containing narrative descriptions and 
engineering design calculations of the technologies the facility 
proposes to implement to demonstrate compliance with the flow, 
velocity, flow reduction, and additional design and construction 
technology requirements. If your facility will meet the flow reduction 
requirement through reuse of 100 percent of the cooling water withdrawn 
from a source water, you must provide a demonstration that 100 percent 
of the cooling water is reused in one or more unit processes at the 
facility.
    EPA requests comment on all aspects of the proposed data provision 
requirements.
5. Data To Support a Request for Alternative Requirements
    If you request an alternative requirement, today's proposal at 
Sec. 125.86(b)(7) would require that you submit all data showing that 
your

[[Page 49099]]

compliance costs are wholly out of proportion to the costs EPA 
considered during development of the requirements at issue. Compliance 
costs that EPA considered were sub-divided into one-time costs and 
recurring costs. Examples of one-time costs include capital and permit 
application costs. Examples of recurring costs include operation and 
maintenance costs, permit renewal costs, and monitoring, recordkeeping 
and reporting costs.

B. How Would the Director Determine the Appropriate Cooling Water 
Intake Structure Requirements?

    The Director's first step would be to determine whether the 
facility is covered by the requirements in these proposed regulations 
for new facilities. If the answer is ``yes'' to all the following 
questions, the facility would be required to meet the requirements of 
this proposed regulation:
    (1) Is the facility a ``new facility'' as defined in Sec. 125.83?
    (2) Does the new facility have a ``cooling water intake structure'' 
as defined in Sec. 125.83?
     Is at least 25 percent of the water withdrawn by the 
facility used for cooling purposes?
     Is the cooling water withdrawn from waters of the U.S.?
    (3) Does the new facility have a design intake flow of greater than 
2 million gallons per day? \56\
---------------------------------------------------------------------------

    \56\ If the answer is ``no'' to the flow parameter and the 
answer is ``yes'' to all the other questions, the Director would use 
best professional judgment on a case-by-case basis to establish 
permit conditions that ensure compliance with section 316(b).
---------------------------------------------------------------------------

    (4) Does the new facility discharge pollutants to waters of the 
U.S., including storm water-only discharges?
    If these proposed regulations are applicable to the new facility, 
the second step would be to determine the locational factors associated 
with the new facility's cooling water intake structure. The Director 
would first review the information that the new facility provided to 
validate the source water body type in which the cooling water intake 
structure is located (freshwater stream or river, lake or reservoir, 
estuary or tidal river, or ocean). (As discussed above, the new 
facility would need to identify the source water body type in the 
permit application and provide the appropriate documentation to support 
the water body type classification.) After validating the water body 
type, the Director's next task would be to verify the facility's 
delineation of the littoral zone boundaries. The Director would review 
the supporting material the facility provided in the permit 
application. The Director would also review the engineering drawings 
and the locational maps the new facility provided, documenting the 
physical placement of the cooling water intake structure.
    The Director's third step would be to review the design 
requirements for intake flow and velocity. The proposed velocity 
requirement is based on the design through-screen or through-technology 
velocity as defined in Sec. 125.83. The maximum design velocity would 
always be 0.5 ft/s (except for cooling water intake structures located 
50 meters outside the littoral zone in a lake or reservoir). However, 
pursuant to proposed section 125.84(f) and (g), the Director might 
determine, based on site-specific characteristics, that a more 
stringent design velocity (e.g., 0.3 ft/s) is required to minimize 
adverse environmental impact. To determine whether the new facility 
meets the maximum design velocity requirement, the Director would 
review the narrative description of the design, structure, equipment, 
and operation used to meet the velocity requirement. The Director would 
also review the design calculations that demonstrate that the maximum 
design velocity would be met. In reissuing permits, the Director would 
review velocity monitoring data to confirm that the facility is 
maintaining the initial design velocity calculated at the start of 
commercial service.
    The proposed flow requirement is based on the water body type and 
the physical placement of the cooling water intake structure in 
relation to the littoral zone. To determine whether the new facility 
meets the proposed flow requirement, the Director would first verify 
the new facility's determination of the water body flow for the 
respective water body type (e.g., annual mean flow and low flow for 
freshwater river or stream). The Director would review the source water 
flow data the facility provided in the permit application. The Director 
might want to use available U.S. Geological Survey (USGS) data (for 
freshwater rivers and streams) to verify the flow data the facility 
provided in its permit application. Then the Director would review any 
supporting documentation and engineering calculations that demonstrate 
that the new facility would meet the proposed flow requirements. To 
verify the flow data the new facility provides for an estuary or a 
tidal river, the Director would review the facility's calculation of 
the tidal excursion. In particular, if the new facility is required to 
reduce its intake flow to a level commensurate with that which could be 
attained by a closed-cycle recirculating cooling water system, the 
Director would review the narrative description or the closed-cycle 
recirculating cooling water system design and any engineering 
calculations to ensure that the new facility is complying with the 
requirement and that the makeup and blowdown flows have been minimized.
    The fourth step for the Director would be to review the applicant's 
Source Water Baseline Biological Characterization study and to 
determine whether additional design and construction technologies are 
required. In those instances where additional design and construction 
technologies (e.g., fish handling devices) are required, the Director 
would review and approve, approve with comment, or disapprove the 
applicant's proposed plans to meet these requirements. In some 
instances, the applicant might assert that its Source Water Baseline 
Biological Characterization demonstrates that no impingement or 
entrainment is occurring (e.g., in a shipping canal). The Director 
would need to carefully evaluate the data and determine whether these 
additional requirements are appropriate for a facility located in a 
heavily industrialized water body. During each permit renewal, the 
Director would then review supporting data to evaluate whether the 
site-specific conditions have changed such that the facility needs to 
implement these additional design and construction technologies.
    In reviewing the application information, the Director would 
determine if the new facility meets the appropriate requirements in 
proposed Sec. 125.84(a) through (e) based on its location on and in the 
water body, including the flow requirements, intake velocity 
requirements, and additional design and construction technology 
requirements. The proposed regulations at Sec. 125.84(f) allow 
Directors to impose more stringent requirements if it is determined 
that they are reasonably necessary to minimize adverse environmental 
impacts. However, the Director may require more stringent requirements 
under proposed Sec. 125.84(f) only where they are reasonably necessary 
as a result of the effects of multiple intakes on a waterbody, seasonal 
variations in the aquatic environment affected by the cooling water 
intake structure controlled by the permit (such as seasonal migration), 
or the presence of regionally important species. The proposed 
regulations at Sec. 125.84(g) require Directors to impose more 
stringent requirements on cooling water intake structures where they 
are reasonably necessary to ensure the

[[Page 49100]]

attainment of water quality standards, including designated uses, 
criteria, and antidegredation.
    The Agency is aware that the determination of appropriate 
requirements would require expertise in aquatic biology. The Agency 
encourages consultation with, and input from, EPA, State, or Tribal 
staff who have the appropriate expertise. In addition, the Agency 
encourages coordination with the U.S. Fish and Wildlife Service and the 
National Marine Fisheries Service.

C. What Would I Be Required To Monitor?

    The monitoring requirements in today's proposed rule at Sec. 125.87 
include biological monitoring of impingement and entrainment, 
monitoring of the screen head loss and velocity, and visual 
inspections.
    Impingement and entrainment monitoring would be used to assess the 
presence, abundance, and life stages (eggs, larvae, post larvae, 
juveniles, and adults) of aquatic organisms (fish and shellfish) 
impinged or entrained during operation of the cooling water intake 
structure. The purpose of the site-specific monitoring is to determine 
whether the representative species list established in the Source Water 
Baseline Biological Characterization remains representative of the 
water body with the operation of the cooling water intake structure and 
to establish the level of impingement and entrainment. Monitoring would 
include sampling of organisms trapped on the outer part of intake 
structures or against screening devices and sampling of organisms 
entering or passing through the cooling water intake structure and into 
the cooling water system. Moreover, because ambient water and 
biological conditions might change over time, sustained monitoring is 
necessary to identify those species affected post operationally by the 
cooling water intake structure.
    In proposed Sec. 125.87(b), EPA would require monitoring of the 
head loss across the intake screens to obtain a correlation of those 
values with the design intake velocity at minimum ambient source water 
surface elevation and maximum head for each cooling water intake 
structure. The data collected by monitoring this parameter would 
provide the Director with additional information after the design and 
construction of the cooling water intake structure to demonstrate that 
the facility is operating and maintaining the cooling water intake 
structure in a manner that the velocity requirement continues to be 
met. The Agency considers this the most appropriate parameter to 
monitor because although the facility might be designed to meet the 
requirement, proper operation and maintenance is necessary to maintain 
the open area of the screen and intake structure, ensuring that the 
design intake velocity is maintained. Head loss can easily be monitored 
by measuring and comparing the height of the water in front of and 
behind the screen and/or other technology. Facilities that use devices 
other than screens would be required to measure the actual velocity at 
the point of entry through the device. Velocity can be measure using 
velocity meters placed at the entrance into the device.
    The Agency considered requiring annual monitoring of either the 
screen-or through-technology velocity or actual approach velocity at 
each cooling water intake structure to demonstrate that they are being 
operated and maintained properly. EPA seeks comment on these and other 
parameters that could be monitored to ensure that the design intake 
velocity is not exceeded once the facility is built and operating.
    Weekly visual inspections would be required to provide a mechanism 
for both the new facility and the Director to ensure that any 
technologies that have been implemented to minimize adverse 
environmental impact are being maintained and operated in a manner that 
ensures that they function as designed. EPA has proposed this 
requirement so that facilities could not develop plans and install 
technologies only to let them fall into disrepair or to operate them 
differently so that adverse environmental impact is not minimized to 
the extent expected. The Director would determine the actual scope and 
implementation of the visual inspections based on the types of 
technologies installed at your facility. For example, they could be as 
simple as observing bypass and other fish handling system to ensure 
that debris has not clogged the system rendering them inoperable.
    The facility would be required to monitor at a frequency specified 
in proposed Sec. 125.87. For biological monitoring required in proposed 
Sec. 125.87(a), after two years, the Director may approve a request for 
less frequent monitoring if the facility desires it and provides data 
to support the request. The Director would consider a request for 
reduced frequency in the impingement or entrainment monitoring only if 
the supporting data show that less frequent monitoring would still 
allow for the detection of any seasonal and daily variations in the 
species and numbers of individuals that are impinged or entrained. With 
each permit renewal, the applicant would continue to monitor individual 
aquatic organisms that are impinged or entrained. Based on the 
monitoring results, species might need to be added or removed from the 
most representative species list. The monitoring results would provide 
current, site-specific knowledge of impingement/entrainment effects. 
EPA requests comment on all aspects of the proposed monitoring 
requirements.

D. How Would Compliance Be Determined?

    In today's proposed rule, Sec. 125.89 specifies what the Director 
must do to comply with the proposed rule. Consistent with these 
provisions, the Director would determine compliance with the 
requirements of the proposed rule based on the following:
     Data submitted with the NPDES permit application to show 
that the facility is in compliance with location, design, construction, 
and capacity requirements (Sec. 125.86).
     Compliance monitoring data and records, including 
impingement and entrainment monitoring, to show that impingement and 
entrainment impacts are being minimized (Sec. 125.87(a)).
     Through-screen or through-technology velocity monitoring 
data and records to show that the facility is being operated and 
maintained as designed to continue to meet the velocity requirement 
(Sec. 125.87(b)).
     Visual inspection to show that technologies installed are 
being operated properly and function as they were designed 
(Sec. 125.87(c)).
    Facilities would be required to keep records and report the above 
information in a yearly status report as proposed in Sec. 125.88. EPA 
requests comment on this requirement. In addition, Directors may 
perform their own compliance inspections as deemed appropriate in 
accordance with 40 CFR 122.41.

E. What Are the Respective Federal, State, and Tribal Roles?

    Section 316(b) requirements are implemented through NPDES permits. 
As discussed in Section II.A., today's proposed regulations would amend 
40 CFR 123.25(a)(36) to add a requirements that authorized State 
programs have sufficient legal authority to implement today's proposed 
requirements (40 CFR part 125, subpart I). Therefore, today's proposed 
rule potentially 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

[[Page 49101]]

requirements within one year from the date of promulgation, unless the 
NPDES-authorized State or Tribe must amend or enact a statute to make 
the required revisions. If a State or Tribe must amend or enact a 
statute to conform with today's proposed rule, the revision must be 
made within two years of promulgation. States and Tribes seeking new 
EPA authorization to implement the NPDES program must comply with the 
requirements when authorization is requested.
    In addition to updating their programs to be consistent with 
today's rule, States and Tribes authorized to implement the NPDES 
program would be required to implement the cooling water intake 
structure requirements following promulgation of the final regulations. 
The requirements proposed must be implemented upon permit issuance and 
reissuance. Duties of an authorized State or Tribe under this 
regulation would include:
     Verification of a permit applicant's determination of 
source water body classification and the flow or volume of certain 
water bodies at the point of the intake;
     Verification that the intake structure maximum flow rate 
is less than the maximum allowable as a proportion of water body flow 
for certain water body types;
     Verification that a permit applicant's design intake 
velocity calculations meet applicable regulatory requirements;
     For certain locations in certain water body types, 
verification that a permit applicant's intake design and reduction in 
capacity are commensurate with a level that can be attained by a 
closed-cycle recirculating cooling water system that has minimized 
makeup and blowdown flows;
     Review and approval or disapproval of a permit applicant's 
plan for the required Source Water Baseline Biological Characterization 
study;
     For certain locations in certain water body types, review 
and approval or disapproval of a permit applicant's plan for 
installation of additional design and construction technologies to 
maximize the survival of impinged fish and minimize entrainment of eggs 
and larvae;
     Development of draft and final NPDES permit conditions for 
the applicant implementing applicable section 316(b) requirements 
pursuant to the proposed regulation; and
     Ensuring compliance with permit conditions based on 
section 316(b) requirements.
    Once the proposed requirements are promulgated as final 
regulations, EPA will implement them where States or Tribes are not 
authorized to implement the NPDES program.

F. Are Permits for New 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 those laws. In addition, the provisions of the 
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 
1801 et seq., relating to essential fish habitat might be relevant. 
Nothing in this proposed rulemaking authorizes activities that are not 
in compliance with these or other applicable Federal laws.

X. Cost/Benefit Analysis

A. Cost

    Total annualized compliance cost of this proposed rule is estimated 
to be $12.1 million.
    Facilities not already meeting section 316(b) requirements would 
incur several types of costs under the proposed regulation. One-time 
costs of the rule would include capital technology costs and costs for 
the initial permit application. Recurring costs would include operating 
and maintenance costs, permit renewal costs, and costs for monitoring, 
record keeping, and reporting.
    Facilities generally would have several alternatives for complying 
with the proposed rule's requirements. Alternative compliance responses 
might include (1) changing the cooling system design so the facility 
would no longer be subject to the proposed section 316(b) New Facility 
Rule; (2) changing the facility location, and making alterations to 
meet requirements based on the new water body type and the distance 
from the littoral zone; (3) changing the distance from the littoral 
zone and making alterations to meet requirements based on water body 
type and the new distance from the littoral zone; and (4) making 
alterations to facility plans to meet requirements based on the 
baseline water body type and distance from the littoral zone.
    The specific compliance response of each facility would be highly 
site-specific. For example, it may not be possible for a facility to 
locate on a different water body type because a suitable site may not 
be available, or a facility may need to address other cost factors that 
might support a decision not to relocate despite the opportunity for 
lower compliance costs. EPA does not have data on which to estimate the 
potential costs of choosing alternative locations. EPA therefore 
considered a set of compliance strategies that are most common among 
existing facilities with cooling water intake structures. Costed 
compliance actions include widening the intake structure or installing 
a velocity cap or passive screens to reduce velocity; switching to a 
recirculating system to reduce intake flow; and implementing additional 
technologies to reduce impingement and entrainment.
    EPA estimated the unit costs associated with these potential 
regulatory responses. The unit costs were assigned to the 98 new 
facilities based on their projected baseline characteristics and their 
requirements under the proposed rule. EPA estimated costs incurred by 
facilities beginning operations between 2001 and 2020. All capital 
costs estimates are amortized over 30 years. Since EPA was only able to 
project new facilities for the first 20 years, the annualized costs 
based on a 30-year amortization period are somewhat less than they 
would have been if EPA were able to project new facilities over a long 
time horizon (30 to 40 years). Moreover, since most of the capital 
costs for installing closed-cycle recirculating cooling systems are not 
projected to be incurred until after 2010, these costs are 
significantly discounted in this analysis.
1. Electric Generation Sector
    For the period 2001 through 2010, EPA estimates that 13 new 
electric generation facilities would be subject to the proposed section 
316(b) New Facility Rule.\57\ Seven of these facilities are actual 
planned facilities identified from the NEWGen database. For these 
facilities, EPA was able to obtain some facility-specific cooling water 
intake structure information. The remaining six facilities are 
hypothetical facilities for which no information was available. For the 
period 2011 through 2020, information on specific, planned facilities 
is not available. The Agency

[[Page 49102]]

used Energy Information Administration forecasts for electric 
generation capacity for combined-cycle and coal steam electric 
facilities. Based on this information, EPA projected that an additional 
27 facilities would be subject to this proposed rule, for a total of 40 
new electric generation facilities over the 20-year period.
---------------------------------------------------------------------------

    \57\ See Section VI.B above or Chapter 5 of the Economic and 
Engineering Analyses of the Proposed Sec. 316(b) New Facility Rule 
for assumptions and methodologies used for this estimate.
---------------------------------------------------------------------------

    For the period 2001 through 2010, EPA estimated facility-level 
costs for the seven NEWGen facilities found to be within the scope of 
this regulation. EPA compared each facility's baseline characteristics 
with the requirements of the rule. If a planned facility already 
fulfilled any of the applicable requirements, no cost was included in 
the estimates for meeting that requirement. For example, EPA estimates 
that 33 of the 40 proposed new generating facilities already plan to 
build a cooling tower, so 7 facilities are assumed to incur costs for 
complying with the recirculation requirement of the rule. EPA used the 
average compliance costs of the seven NEWGen facilities for the six 
extrapolated facilities. For the period 2011 through 2020, EPA used 
assumptions described in the Economic and Engineering Analyses of the 
Proposed Sec. 316(b) New Facility Rule to project which facilities 
would be subject to this proposed rule and whether they would be 
required to install a cooling tower. For example, based on Energy 
Information Administration information on the proportion of new 
generating facilities employing cooling towers in recent years, the 
Agency estimated that four coal steam electric generating facilities 
and three combined-cycle facilities would be required to install 
cooling towers.
    Total annualized costs for the 40 new electric generators are 
estimated to be $6.4 million using a seven percent discount rate and a 
30-year analysis period. The lowest annual compliance cost for any 
electric generator is estimated to be approximately $73,000 or $97 per 
megawatt of generating capacity; the highest cost is estimated to be 
$4.1 million or $5,088 per megawatt of generating capacity. Thirty-
three facilities are expected to have relatively low compliance costs 
while 7 facilities will have relatively high costs.\58\
---------------------------------------------------------------------------

    \58\ The higher costs facilities are expected to come on line in 
the years 2011, 2014, 2015, 2018, 2019.
---------------------------------------------------------------------------

2. Manufacturing Sector
    For the period 2001 through 2020, EPA projected that 58 new 
manufacturing facilities with costs under the proposed rule would begin 
operation during the next 20 years.\59\ All of these facilities are 
hypothetical facilities estimated based on industry growth rates and 
responses to the Section 316(b) Industry Screener Questionnaire. 
Facility-specific operational characteristics of cooling water intake 
structures and economic and financial characteristics of the projected 
new facilities were not available. Therefore, EPA used information from 
screener respondents to project economic and technical characteristics 
of the new manufacturing facilities.
---------------------------------------------------------------------------

    \59\ See Section VI.B above or Chapter 5 of the Economic and 
Engineering Analyses of the Proposed Sec. 316(b) New Facility Rule 
for information on assumptions and methodologies used for this 
estimate.
---------------------------------------------------------------------------

    Based on the projected facility characteristics, EPA estimated 
facility-level compliance costs using the same unit costs and 
methodology as for new electric generators. Total annualized costs for 
the 58 new manufacturing facilities are estimated to be $5.7 million. 
The lowest annual compliance cost for any facility was approximately 
$73,000; the highest cost was $0.6 million.
    Exhibit 3 provides a summary of the compliance costs for the rule. 
Details on methods, assumptions and unit costs used to develop 
engineering compliance costs for steam electric generating and 
manufacturing facilities are presented in Chapter 6 of the Economic and 
Engineering Analyses of the Proposed Sec. 316(b) New Facility Rule.

        Exhibit 3.--National Pre-Tax Costs of Compliance With the Section 316(b) New Facility Regulation
----------------------------------------------------------------------------------------------------------------
                                         One-time costs                  Recurring costs
                                   -----------------------------------------------------------------
   Industry category (number of                                                         Monitoring,
       facilities affected)                         Permit                    Permit       record       Total
                                      Capital    application      O&M        renewal     keeping &
                                                                                         reporting
----------------------------------------------------------------------------------------------------------------
                            Total Compliance Costs (present value, in millions $1999)
----------------------------------------------------------------------------------------------------------------
Electric Generators (40)..........        $22.5         $1.0        $39.9         $1.5        $15.3        $79.6
Manufacturing Facilities (58).....         12.2          1.4         34.3          2.1         20.7         70.7
                                   -----------------------------------------------------------------------------
    Total (98)....................         34.7          2.4         73.6          3.6         36.0        150.9
----------------------------------------------------------------------------------------------------------------
                                     Annualized Compliance Costs (in $1999)
----------------------------------------------------------------------------------------------------------------
Electric Generators (40)..........    1,809,266       84,401    3,169,779      123,526    1,239,345    6,426,317
Manufacturing Facilities (58).....      984,524      111,383    2,761,176      172,307    1,671,369    5,700,759
                                   -----------------------------------------------------------------------------
    Total (98)....................    2,793,790      195,784    5,930,955      295,833    2,910,714   12,127,076
----------------------------------------------------------------------------------------------------------------

3. Cost Impacts
    Exhibit 4 shows that the estimated compliance costs would represent 
a small portion of the estimated revenues for most of the facilities. 
Costs as a percentage of baseline revenues would be less than one 
percent for all the facilities with the exception of eight 
facilities.\60\
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    \60\ One steel works facility and one industrial gases facility 
would have annualized costs equal to 8.8 and 2.4 percent of 
revenues, respectively. Three electric generators would have 
annualized costs equal to 4.2% of revenues and another 3 would have 
annualized costs equal to 1.0% of revenues.
---------------------------------------------------------------------------

    In addition to low impacts at the facility level, impacts at the 
industry level are expected to be very limited because the projected 
number and total size of the new facilities that would be within the 
scope of the proposed rule are generally small compared to the industry 
as a whole. EPA therefore does not expect the proposed rule to cause 
significant changes in industry productivity, competition, prices, 
output, foreign trade, or employment.
    In summation, the proposed rule is expected to be economically 
practicable

[[Page 49103]]

at both the facility and national level for all sectors. Only a small 
percent of the total number of facilities in each of the manufacturing 
sectors would be affected by the proposed rule. EPA, therefore, 
concludes that this rule would not result in a significant impact on 
industries or the economy.

                       Exhibit 4.--Pre-Tax Compliance Costs and Economic Impacts By Sector
----------------------------------------------------------------------------------------------------------------
                                                                              Total       Annualized compliance
                                                               Number of    annualized    cost as a percent of
                                                               projected    compliance      facility revenues
                           Sector                               in-scope      costs    -------------------------
                                                               facilities     ($mill
                                                                              1999)        Lowest      Highest
----------------------------------------------------------------------------------------------------------------
SIC 49 Steam electric generating............................           40          6.4         0.07          4.2
SIC 26 Pulp & paper.........................................            0            0           NA           NA
SIC 28 Chemicals............................................           48          4.5         0.01          2.4
SIC 29 Petroleum............................................            0            0           NA           NA
SIC 331 Iron & steel........................................            8          1.1         0.01          8.8
SIC 333/335 Aluminum........................................            2         0.07         0.02         0.02
                                                             ---------------------------------------------------
    Total...................................................           98         12.1
----------------------------------------------------------------------------------------------------------------

4. Cost Impacts of Other Alternatives
    In addition to today's proposed rule, EPA costed the impacts of two 
alternative regulatory options. The first alternative option that EPA 
considered is to apply the BTA requirements proposed for estuaries and 
tidal rivers to all facilities, regardless of location. Under this 
option, the definition and number of new facilities subject to the rule 
would not change, but some facilities would incur more stringent 
compliance requirements. EPA estimates the total annualized compliance 
costs for this alternative would be $16.4 million. The second 
alternative option considered by EPA would impose more stringent 
compliance requirements on the electric generating segment of the 
industry. It is based in whole or in part on a zero intake-flow (or 
nearly zero, extremely low-flow) requirement commensurate with levels 
achievable through the use of dry cooling systems. New manufacturing 
facilities would not be subject to these stricter requirements but 
would have to comply with the standards of the proposed rule. EPA 
estimated costs for this alternative assuming that the dry cooling 
standard would apply to electric generators on all waters of the U.S. 
The costs of this option is estimated to be $193 million per year.
    Both alternative regulatory options considered by EPA would have 
higher total costs than this proposed rule. A regulatory framework 
based on dry cooling towers for some or all electric generators is the 
most expensive option. Compared to the proposed rule, this option would 
impose an additional cost of $181 million, or $20,720 per megawatt of 
generating capacity, on the electric generating sector. As with the 
proposed option, the majority of capital costs for these options are 
projected to occur after 2010, and so are significantly discounted in 
the analysis.

B. Discussion of Cooling Water Intake Structure Impacts and Potential 
Benefits

    To provide an indication of the potential benefits of adopting BTA 
for cooling water intake structures, this section presents information 
from existing sources on impingement and entrainment losses associated 
with cooling water intake structures, and the economic benefits 
associated with reducing these losses. Examples are drawn from existing 
sources because the information needed to quantify and value potential 
reductions in losses at new facilities is not yet available. In most 
cases, there is only general information about facility locations, and 
details of intake characteristics and the ecology of the surrounding 
water body are unavailable. Such information is critical because 
studies at existing facilities demonstrate that benefits are highly 
variable across facilities and locations. Even similar facilities on 
the same water body can have very different impacts depending on the 
aquatic ecosystem in the vicinity of the facility, and intake-specific 
characteristics such as location, design, construction, and capacity.
    In general, the probability of impingement and entrainment depends 
on intake and species characteristics that influence the intensity, 
time, and spatial extent of interactions of aquatic organisms with a 
facility's cooling water intake structure and the physical, chemical, 
and biological characteristics of the source water body. Closed-cycle 
cooling systems (which are one part of the basis for BTA for all but 
the least sensitive areas) withdraw water from a natural water body, 
circulate the water through the condensers, and then send it to a 
cooling tower or cooling pond before recirculating it back through the 
condensers. Because cooling water is recirculated, closed-cycle systems 
generally reduce the water flow from 72 percent to 98 percent, thereby 
using only 2 percent to 28 percent of the water used by once-through 
systems. It is generally assumed that this would result in a comparable 
reduction in impingement and entrainment.
    Fish species with free-floating, early life stages are those most 
susceptible to CWIS impacts. Such planktonic organisms lack the 
swimming ability to avoid being drawn into intake flows. Species that 
spawn in nearshore areas, have planktonic eggs and larvae, and are 
small as adults experience even greater impacts because both new 
recruits and reproducing adults are affected (e.g., bay anchovy in 
estuaries and oceans). In general, higher impingement and entrainment 
are observed in estuaries and near coastal waters due to the presence 
of spawning and nursery areas. Additionally, tidal currents in 
estuaries can carry organisms past intakes multiple times, increasing 
their probability of impingement and entrainment. These observations 
would tend to support EPA's decision to establish requirements for 
minimizing adverse environmental impact according to water body type 
and the placement of the intake structure in relation to biologically 
productive zones.
    The proposed regulatory framework also recognizes that for any 
given species and cooling water intake structure location, the 
proportion of the source water flow supplied to the cooling water 
intake structure is a major factor affecting the potential for 
impingement and entrainment. In general, if the quantity of water 
withdrawn is large relative to the flow of the source water body, water

[[Page 49104]]

withdrawal would tend to concentrate organisms and increase numbers 
impinged and entrained. Thus, the proposed flow requirements seek to 
minimize impingement and entrainment by limiting the proportion of the 
water body flow that can be withdrawn.
    The following five examples from studies at existing facilities 
offer some indication of the relative magnitude of monetary damages 
associated with cooling water intake structures at some existing 
facilities. These examples exhibit the magnitude of impingement and 
entrainment, on a per facility basis, that could be significantly 
reduced in the future for similar steam electric facilities under this 
proposed rule. In the following discussion, the potential benefits of 
lowering intake flows to a level commensurate with closed-cycle 
recirculating cooling water system (for the projected 25 percent of 
facilities not already planning to use such systems) is illustrated by 
comparisons of once-through and closed-cycle cooling systems (e.g., the 
Brayton Point and Hudson River facilities). The potential benefits of 
additional requirements defined by regional permit directors is 
demonstrated by operational changes implemented to reduce impingement 
and entrainment (e.g., the Pittsburg and Contra Costa facilities). The 
Ludington example demonstrates how impingement and entrainment losses 
of forage species can lead to reductions in economically valuable 
species. Finally, the potential benefits of implementing additional 
design and construction technologies to increase survival of organisms 
impinged or entrained is illustrated by the application of modified 
intake screens and fish return systems (e.g., the Salem Nuclear 
Generating Station).
    The first example of the potential benefits of minimizing intake 
flow and associated impingement and entrainment is provided by data for 
the Brayton Point facility, located on Mt. Hope Bay in 
Massachusetts.61 62 In the mid-1980s, the operation of Unit 
4 was changed from closed-cycle to once-through cooling. Although 
conversion to once-through cooling increased intake flow by 45%, the 
facility requested the change because of electrical problems associated 
with salt contamination from Unit 4's salt water spray cooling system. 
The lower losses expected under closed-cycle operation can be estimated 
by comparing losses before and after this modification. On this basis, 
EPA estimates that the average annual reduction in entrainment losses 
of adult-equivalents of catchable fish resulting from closed cycle 
operation of a single unit at Brayton Point (reducing the flow of that 
unit from 1,045 MGD to 703 MGD) ranges from 207,254 Atlantic menhaden 
(Brevoortia tyrannus) and 155,139 winter flounder (Pleuronectes 
americanus) to 20,198 tautog (Tautoga onitis) and 7,250 weakfish 
(Cynoscion regalis) per year. Assuming a proportional change in 
harvest, the lower losses associated with a closed cycle system may be 
expected to result in an increase of 330,000 to 2 million pounds per 
year in commercial landings and 42,000 to 128,000 pounds per year in 
recreational landings.
---------------------------------------------------------------------------

    \61\ New England Power Company and Marine Research, Inc., Final 
Environmental Impact Report and Section 316(a) and 316(b) 
Demonstrations Made in Connection with the Proposed Conversion of 
Generating Unit No. 4 from Closed-Cycle Cooling to Once-Through 
Cooling. 1981.
    \62\ Gibson, M. Comparison of Trends in the Finfish Assemblages 
of Mt. Hope Bay and Narragansett Bay in Relation to Operations of 
the New England Power Brayton Point Station. Rhode Island Division 
Fish and Wildlife, Marine Fisheries Office, June 1995 and revised 
August 1996.
---------------------------------------------------------------------------

    The second example of the potential benefits of low intake flow is 
provided by an analysis of impingement and entrainment losses at five 
Hudson River power plants. Estimated fishery losses under once-through 
compared to closed-cycle cooling indicate that an average reduction in 
intake flow of about 95 percent at the three facilities responsible for 
the greatest impacts would result in a 30 percent to 80 percent 
reduction in fish losses depending on the species involved.\63\ An 
economic analysis estimated monetary damages under once-through cooling 
based on the assumption that annual percent reductions in year classes 
of fish result in proportional reductions in fish stocks and harvest 
rates.\64\ A low estimate of damages was based on losses at all five 
facilities, and a high estimate was based on losses at the three 
facilities that account for most of the impacts. Damage estimates under 
once-through cooling ranged from about $1.3 million to $6.1 million 
annually in 1999 dollars. Over the next 20 years, EPA projects that 
seven out of 40 new power plants would be built without recirculating 
systems in the absence of this rule. Most of the costs projected for 
the proposed rule are associated with installing recirculating systems 
as a result of this proposed rule.
---------------------------------------------------------------------------

    \63\ Boreman, J. and C.P. Goodyear. ``Estimates of entrainment 
mortality for striped bass and other fish species inhabiting the 
Hudson River Estuary.'' American Fisheries Society Monograph 4:152-
160. 1988.
    \64\ Rowe, R.D., C.M. Lang, L.G. Chestnut, D.A. Latimer, D.A. 
Rae, S.M. Bernow, and D.E. White. The New York Electricity 
Externality Study, Volume 1. Empire State Electric Energy Research 
Corporation. 1995.
---------------------------------------------------------------------------

    The third example demonstrates how impingement and entrainment 
losses of forage species can lead to reductions in economically valued 
species. A random utility model (RUM) was used to estimate fishery 
impacts of impingement and entrainment by the Ludington Pumped-Storage 
plant on Lake Michigan.65 66 This method estimates changes 
in demand as a function of changes in catch rates. The Ludington 
facility is responsible for the loss of about 1 percent to 3 percent of 
the total Lake Michigan production of alewife, a forage species that 
supports valuable trout and salmon fisheries. It was estimated that 
losses of alewife result in a loss of nearly 6 percent of the angler 
catch of trout and salmon each year. On the basis of RUM analysis, the 
study estimated that if Ludington operations ceased, catch rates of 
trout and salmon species would increase by 3.3 to 13.7 percent 
annually, amounting to an estimated recreational angling benefit of 
$0.95 million per year (in 1999 dollars) for these species alone.
---------------------------------------------------------------------------

    \65\ Jones, C.A., and Y.D. Sung. Valuation of Environmental 
Quality at Michigan Recreational Fishing Sites: Methodological 
Issues and Policy Applications. Prepared under EPA Contract No. CR-
816247 for the U.S. EPA, Washington, DC. 1993.
    \66\ Pumped storage facilities do not use cooling water and are 
therefore would not subject to this proposed rule. However, the 
concept of economic valuation of losses in forage species is 
transferable to other types of stressors, including cooling water 
intake structures.
---------------------------------------------------------------------------

    The fourth example indicates the potential benefits of operational 
BTA that might be required by regional permit Directors. Two plants in 
the San Francisco Bay/Delta, Pittsburg and Contra Costa in California 
have made changes to their intake operations to reduce impingement and 
entrainment of striped bass (Morone saxatilis). These operational 
changes have also reduced incidental take of several threatened and 
endangered fish species, including the delta smelt (Hypomesus 
transpacificus) and several runs of chinook salmon (Oncorhynchus 
tshawytscha) and steelhead trout (Oncorhynchus mykiss). According to 
technical reports by the facilities, operational BTA reduced striped 
bass losses by 78 percent to 94 percent, representing an increase in 
striped bass recreational landings of about 15,000 fish each year. A 
local study estimated that the consumer surplus of an additional 
striped bass caught by a recreational angler is $8.87 to $13.77.\67\ 
This implies a benefit to the recreational fishery, from reduced 
impingement and entrainment of striped

[[Page 49105]]

bass alone, in the range of $131,000 to $204,000 annually. The monetary 
benefit of reduced impingement and entrainment of threatened and 
endangered species might be substantially greater.
---------------------------------------------------------------------------

    \67\ Huppert D.H. ``Measuring the value of fish to anglers: 
application to central California anadromous species.'' Marine 
Resource Economics 6:89-107. 1989.
---------------------------------------------------------------------------

    The final example indicates the benefits of technologies that can 
be applied to maximize survival. At the Salem Nuclear Generating 
Station in Delaware Bay, the facility's original intake screens were 
replaced with modified screens and improved fish return baskets that 
reduce impingement stress and increase survival of impinged fish.\68\ 
The changes resulted in an estimated 51 percent reduction in losses of 
weakfish. Assuming similar reductions in losses of other recreational 
and commercial species, this represents an increase in recreational 
landings of 13,000 to 65,000 fish per year and an increase in angler 
consumer surplus of as much as $269,000 annually in 1999 dollars. The 
estimated increase in commercial landings of 700 to 28,000 pounds per 
year represents an increase in producer surplus of up to $25,000 
annually. Assuming that nonuse benefits are at least 50 percent of 
recreational use benefits, nonuse benefits associated with the screens 
might be expected to amount to up to $134,000 per year.
---------------------------------------------------------------------------

    \68\ Ronafalvy, J.P., R.R. Cheesman, and W.M. Matejek. 
``Circulating water traveling screen modifications to improve 
impinged fish survival and debris handling at Salem Generating 
Station.'' Presentation at Power Generation Impacts on Aquatic 
Resources Conference, Atlanta Georgia, April 12-15, 1999.
---------------------------------------------------------------------------

    A more detailed discussion of cooling water intake structure 
impacts and potential benefits can be found Chapter 11 of the Economic 
and Engineering Analyses of the Proposed Sec. 316(b) New Facility Rule. 

    The Agency recognizes that limited data, if any, are available on 
impingement and entrainment rates at facilities with intake flows at or 
near the flow threshold proposed today or the alternative flow 
thresholds discussed in Section V.D. above. The Agency specifically 
invites commenters to provide any data they may have on impingement 
and/or entrainment rates at facilities with total intake flows at or 
below 30 MGD.

XI. Administrative Requirements

A. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA has 
prepared an Information Collection Request (ICR) document (ICR No. 
1973.01) and you may obtain a copy from Sandy Farmer by mail at 
Collection Strategies Division; U.S. Environmental Protection Agency 
(2822); 1200 Pennsylvania Ave., NW., Washington, DC 20007, by e-mail at 
[email protected], or by calling (202) 260-2740. You also 
can download a copy off the Internet at http://www.epa.gov/icr.
    The total burden of the information collection requirements 
associated with today's rule is estimated at 46,849 hours. The 
corresponding cost for costs other than labor (labor costs are included 
in the total cost of the rule discussed in section X of this preamble) 
is estimated at $1.03 million for 22 facilities and 44 States and 
Territories for the first three years after promulgation of the rule. 
Non-labor costs, include activities such as laboratory services, 
photocopying, and the purchase of supplies. The burden and costs are 
for the information collection, reporting, and record keeping 
requirements for the three-year period beginning with the assumed 
effective date of today's rule. Additional information collection 
requirements will occur after this initial three-year period and will 
be counted in a subsequent information collection request. EPA does not 
consider the specific data that would be collected under this proposed 
rule to be confidential business information. However, if a respondent 
does consider this information to be confidential, the respondent may 
request that such information be treated as confidential. All 
confidential data will be handled in accordance with 40 CFR 122.7, 40 
CFR part 2, and EPA's Security Manual Part III, Chapter 9, dated August 
9, 1976.
    Compliance with the applicable information collection requirements 
imposed under this proposed rule (see Secs. 125.86,125.87, and 125.88) 
is mandatory. Before new facilities can begin operation, they would be 
required first to perform several data-gathering activities as part of 
the permit application process. Today's proposal would require several 
distinct types of information collection as part of the NPDES 
application. In general, the information would be used to identify 
which of the requirements in today's proposed rule apply to the new 
facility, how the new facility would meet those requirements, and 
whether the new facility's cooling water intake structure reflects the 
best technology available for minimizing adverse environmental impact. 
Specific data requirements proposed are the following:
     Source water data for evaluation of potential impacts to 
the water body in which the intake structure is placed.
     Intake structure data, consisting of intake structure 
design and facility water balance diagram, to evaluate the potential 
for impingement and entrainment of aquatic organisms.
     Baseline ambient biological data, in the form of a Source 
Water Baseline Biological Characterization study, for evaluating 
potential impacts from the cooling water intake structure prior to the 
start of operation.
     Information on additional design and construction 
technologies implemented to ensure compliance with the applicable 
requirements set forth in today's proposed rule.
    In addition to the information requirements of the NPDES permit 
application, NPDES permits normally specify monitoring and reporting 
requirements to be met by the permitted entity. New facilities that 
fall within the scope of this rule would be required to perform 
biological monitoring of impingement and entrainment, monitoring of the 
screen or through-technology velocity, and visual inspections of the 
cooling water intake structure and any additional technologies. 
Additional ambient water quality monitoring may also be required of 
facilities depending on the specifications of their permit. The 
facility would be expected to analyze the results its monitoring 
efforts and then provide these results in an annual status report to 
the permitting authority. Finally, facilities would be required to 
maintain records of all submitted documents, supporting materials, and 
monitoring results for at least three years (the director may require 
that records be kept for a longer period to coincide with the life of 
the NPDES permit) .
    All the impacted facilities would have to carry out the specific 
activities necessary to fulfill the general information requirements. 
The estimated burden to comply with these requirements is associated 
with describing and drawing the physical configurations of the source 
water body where the cooling water intake structures are located and 
documenting the delineation of the littoral zone, submerged vegetation, 
and substrate characteristics of the water body in relation to each 
cooling water intake structure. The activities costed out also include 
sampling, analyzing, and reporting the results in a Source Water 
Baseline Biological Characterization Study before the operation of the 
cooling water intake structures and developing a water balance diagram 
that

[[Page 49106]]

can be used to identify the proportion of intake water used for 
cooling, make-up, and process water. Some of the facilities would need 
to perform additional activities in relation to velocity and flow 
reduction requirements. The estimates also incorporate the cost of 
preparing a narrative description of the design, structure, equipment, 
and operation to meet the velocity, flow, and flow reduction 
requirements.
    In addition to the activities mentioned above, some facilities 
would need to prepare and submit a plan describing the design and 
characteristics of additional technologies to be installed to maximize 
the survival of aquatic organisms, and to minimize the impingement and 
entrainment of organisms. The estimates for some facilities also 
incorporate the cost of the sampling, analyzing, and reporting of the 
impinged and entrained organisms during a biological cycle, and 
velocity monitoring and biweekly inspections of the operation of the 
installed technologies.
    Exhibit 5 presents a summary of the maximum burden estimates for a 
facility to prepare a permit application, along with the monitoring and 
reporting of cooling water intake structures operations.

   Exhibit 5.--Maximum Burden and Costs per Facility for NPDES Permit Application and Monitoring and Reporting
                                                   Activities
----------------------------------------------------------------------------------------------------------------
                                                                                                   Other direct
                           Activities                              Burden  (hr)     Labor cost        costs a
----------------------------------------------------------------------------------------------------------------
Start-up activities.............................................              43          $1,330             $50
General information activities..................................             252           6,512             500
Source water baseline biological characterization activities b..             404          11,655           1,250
Flow standard activities........................................             104           2,495             100
Velocity standard activities....................................             138           3,690           1,000
Flow reduction commensurate with closed-cycle recirculating.....              98           2,478             400
Additional design and construction technology implementation                  85           2,372              50
 plan...........................................................
                                                                 -----------------------------------------------
    Subtotal....................................................           1,124          30,532          3,350
----------------------------------------------------------------------------------------------------------------
              Maximum Burden and Costs per Facility for Annual Monitoring and Reporting Activities
----------------------------------------------------------------------------------------------------------------
Biological monitoring (impingement).............................             238          $6,736          $2,000
Biological monitoring (entrainment).............................             530          14,675           4,000
Velocity monitoring.............................................             163           4,169             100
Visual inspection...............................................             253           6,831             100
Yearly status report activities.................................             340          10,634             750
                                                                 -----------------------------------------------
    Subtotal....................................................           1,524          43,045          6,950
----------------------------------------------------------------------------------------------------------------
a Cost of supplies, filing cabinets, photocopying, boat renting, etc.
b The Source Water Baseline Biological Characterization Study also has contracted service costs associated with
  it.

    The proposed changes to the NPDES permit process would require 
States to devote time and resources to reviewing and responding to the 
NPDES permit applications, implementation plans, and annual status 
reports submitted to them. EPA assumed that all 43 States and one 
territory with NPDES permitting authority will undergo start-up 
activities in preparation for administering the provisions of the New 
Facility Rule. As part of these start-up activities States are expected 
to train junior technical staff on how to review materials submitted by 
facilities, and then use these materials to determine the specific 
conditions of each facility's NPDES permit with regard to the 
facility's cooling water intake structure.
    Each State's actual burden associated with reviewing submitted 
materials, writing permits, and tracking compliance depends on the 
number of new in-scope facilities that will be built in the State 
during the ICR approval period. EPA expects that State senior 
technical, junior technical, and clerical staff will spend time 
gathering, preparing, and submitting the various documents. EPA's 
burden estimates reflect the general staffing and level of expertise 
that is typical in States that administer the NPDES permitting program. 
EPA considered the time and qualifications necessary to complete 
various tasks such as reviewing submitted documents and supporting 
materials, verifying data sources, planning responses, determining 
specific permit requirements, writing the actual permit, and conferring 
with facilities and the interested public. Exhibit 6 provides a summary 
of the burden estimates for States performing various activities 
associated with the proposed rule.

      Exhibit 6.--Estimating State Burden and Costs for Activities
------------------------------------------------------------------------
                                                Burden   Labor     ODC
                  Activities                    (hrs)     cost     ($)
------------------------------------------------------------------------
State start-up activities (per State)........      100   $3,004      $50
State permit issuance activities (per              116    3,182      300
 facility)...................................
Annual State activities (per facility).......       50    1,419       50
------------------------------------------------------------------------

    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 procedures to 
comply with any previously applicable instructions and requirements; 
train personnel to be able

[[Page 49107]]

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 and 48 CFR Chapter 15.
    EPA requests comments on the Agency's need for this information, 
the accuracy of the provided burden estimates, and any suggested 
methods for minimizing respondent burden, including through the use of 
automated collection techniques. Send comments on the ICR to the 
Director, Collection Strategies Division; U.S. Environmental Protection 
Agency (2822); 1200 Pennsylvania Ave., NW.; Washington, DC 20460; and 
to the Office of Information and Regulatory Affairs; Office of 
Management and Budget; 725 17th Street; NW., Washington, DC 20503, 
marked ``Attention: Desk Officer for EPA.'' Include the ICR number in 
any correspondence. Because OMB is required to make a decision 
concerning the ICR between 30 and 60 days after August 10, 2000, a 
comment is most likely to have its full effect if OMB receives it by 
September 11, 2000. The final rule will respond to any OMB or public 
comments on the information collection requirements contained in this 
proposal.

B. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
might result in expenditures to State, local, and Tribal governments, 
in the aggregate, or to the private sector, of $100 million or more in 
any one year. Before promulgating an EPA rule for which a written 
statement is needed, section 205 of UMRA generally requires EPA to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows EPA to adopt an alternative other 
than the least costly, most cost-effective, or least burdensome 
alternative if the Administrator publishes with the final rule an 
explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that might 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 has determined that this rule does not contain a Federal 
mandate that might 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. Total annualized compliance and implementation 
costs are estimated to be $12.2 million. Of the total, the private 
sector accounts for $11.9 million and the government sector (includes 
direct compliance costs for facilities owned by government entities) 
accounts for $0.26 million. EPA calculated annualized costs by 
estimating initial and annual expenditures by facilities and regulatory 
authorities over the 30-year period (2001-2031), calculating the 
present value of that stream of expenditures using a 7 percent discount 
rate. EPA estimates that the highest undiscounted costs incurred by the 
private sector and government sector in any one year are approximately 
$36.2 million and $0.29 million, respectively. Thus, today`s rule is 
not subject to the requirements of sections 202 and 205 of UMRA.
    This rule is not expected to impact small governments. A 
municipality that owns or operates a electric generation facility is 
the primary category of small government operations that might be 
affected by a rule, regulating cooling water intake structures. 
Existing data indicates that no new municipal electric generation 
facilities are going to be constructed in the next ten years. In 
addition, to minimize cost, this proposed rule excludes facilities that 
take in less than two (2) million gallons per day. Details and 
methodologies used for these estimations are included in the Economic 
and Engineering Analysis of the Proposed Section 316(b) New Facility 
Rule, which is in the docket for today`s proposal.
    EPA has determined that this proposed rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. The proposal, if promulgated, would not establish 
requirements that would affect small governments. Thus, today`s 
proposed rule is not subject to the requirements of section 203 of 
UMRA.

C. Regulatory Flexibility Act (RFA) as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    Today`s proposed rule is intended to minimize the adverse 
environmental impact from cooling water intake structures and regulates 
industries that use cooling water withdrawn directly from waters of the 
U.S. The primary impact would be on steam electric generating 
facilities (SIC 4911); however, a number of other industries might also 
be regulated, including but not limited to paper and allied products 
(primary SIC 26), chemical and allied products (primary SIC 28), 
petroleum and coal products (primary SIC 29), and primary metals 
(primary SIC 33).
    For the purposes of assessing the impacts of today`s rule on small 
entities, small entity is defined as: (1) A small business according to 
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 not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field. This proposed rule is 
expected to regulate only a small absolute number of facilities owned 
by small entities, that represent a very small percentage of all 
facilities owned by small entities in their respective industries. EPA 
has estimated that 20 facilities owned by small entities would be 
regulated by this proposed rule. Of the 20 facilities owned by small 
entities, 14 are projected to be steam electric generating facilities 
and 6 to be manufacturing facilities. EPA does not anticipate that 
today`s proposed rule would regulate any small governments or nonprofit 
entities.

[[Page 49108]]

    After considering the economic impacts of today`s proposed rule on 
small entities, the Agency certifies that this action will not have a 
significant economic impact on a substantial number of small entities 
for reasons explained below.
1. Electric Generation Sector
    EPA has described the process by which prospective new steam 
electricity generating facilities were identified and how EPA 
determined whether such facilities are subject to today`s proposed rule 
elsewhere in this preamble and in Chapter 5 of the Economic and 
Engineering Analysis of the Proposed Sec. 316(b) New Facility Rule. As 
described in Chapter 8 of the economic and engineering support 
document, EPA then identified those facilities subject to the rule 
whose parent firm or government owner would qualify as a small entity 
pursuant to the SBA size standard for electrical utilities. The Small 
Business Administration defines a small steam electric generator as a 
firm whose facilities generated 4 million megawatt-hours output or less 
in the proceeding year. From that analysis, EPA has determined that 14 
facilities owned by small businesses within the steam electric 
generating industry are likely to be regulated by today`s proposed 
rule. The only government-owned facility that met the SBA criteria was 
owned by a State and States are not considered small governments.
    The estimated annualized compliance costs that facilities owned by 
small entities would likely incur represent between 0.07 to 0.15 
percent of estimated facility annual sales revenue.\69\ In addition, 
EPA was able to assess impacts based on the ratio of initial costs to 
plant construction costs. The results of both screening analyses 
indicated very low impacts at the facility level. Consequently, the 
costs to the parent small entity would be even lower.
---------------------------------------------------------------------------

    \69\ In addition to 7 known planned facilities, EPA estimated 
that additional hypothetical facilities potentially regulated by 
this proposed rule will begin operating during the next 20 years. 
Based on information on the known facilities and expected 
characteristics of the projected facilities, EPA estimates that 
impacts on other facilities owned by small firms would also be low.
---------------------------------------------------------------------------

    The absolute number of small entities potentially subject to this 
rule is low. This is not unexpected since the total number of 
facilities subject to this rule is also low. This is the case, even 
though the electric power industry is currently experiencing a rapid 
expansion and transition due to deregulation and new Clean Air Act 
requirements for emissions controls, and a large number of generating 
plants are under construction or planned for the early years after 
promulgation of the proposed rule. First, there is a trend toward 
construction of combined-cycle technologies using natural gas, which 
use substantially less cooling water than other technologies. Second, 
there has been a decline in the use of surface water as the source of 
cooling water. The NEWGen sample data shows a trend away from the use 
of surface cooling water. It is indicated that 80 percent of the 
sampled facilities use alternative sources of cooling water (e.g., grey 
water, ground water, and municipal water). EPA believes this trend 
reflects the increased competition for water, an increasing awareness 
of the need for water conservation, and increased local opposition to 
the use of surface water for power generation. Taken together, the 
trend toward combined-cycle generating technologies, which have small 
cooling water requirements per unit of output, and the trend away from 
the use of surface cooling water result in a low projected number of 
regulated facilities, despite the expected expansion in new generating 
capacity.
2. Manufacturing Sector
    Chapter 5 of the Economic and Engineering Analysis of the Proposed 
Sec. 316 (b) New Facility Rule shows that 58 new manufacturing 
facilities are expected to incur compliance costs under the proposed 
section 316(b) New Facility Rule. Since EPA`s estimate of new 
manufacturing facilities is based on industry growth forecasts and not 
on specific planned facilities, actual parent firm information was not 
available. EPA therefore developed profiles of representative 
facilities based on the characteristics of existing facilities 
identified in the screener survey EPA used to identify an appropriate 
sample of existing facilities for detailed analysis as part of 
Sec. 316(b) rulemaking for existing facilities. \70\
---------------------------------------------------------------------------

    \70\ For each SIC code that included one projected new facility, 
EPA sorted screener respondents in that SIC code by the number of 
employees at a facility. EPA selected the facility with the median 
employment value as the representative facility and used that 
facility's reported firm characteristics (employment and sales 
revenues) for this small entity analysis. Data from the Dun & 
Bradstreet database were used where information on the firm was not 
available in the screener. In cases where more than one new facility 
is projected in an SIC code, EPA again sorted the screener 
respondents by number of employees at a facility. EPA then divided 
the screener respondents into as many subcategories as the projected 
number of new facilities in the SIC code. Finally, EPA used 
employment and sales revenue data from the median employment 
facility in each subcategory to represent the projected new facility 
for this small entity analysis. Data from the Dun & Bradstreet 
database were used where information on the firm was not available 
in the screener survey. The document, Economic and Engineering 
Analysis of the Proposed Sec. 316(b) New Facility Rule, provides 
more detailed information on how facility and firm characteristics 
for the 58 new manufacturing facilities were determined.
---------------------------------------------------------------------------

    On the basis of the comparison of each representative facility`s 
parent firm employment with the SBA small entity size standard for the 
firm`s SIC code (the small entity size standards are expressed in terms 
of employees (500 to 1000 employees)), only 6 of the 58 new 
manufacturing facilities are projected to be owned by a small entity. 
Four of the 6 facilities are in the chemicals sector and 2 are in the 
metals sector. EPA used annualized costs as a percentage of annual 
sales revenue to assess impacts for manufacturing firms. Again, the 
test was applied at the facility rather than the firm level, which 
provides a conservative estimate of the impacts because the ratio of 
costs to revenues generally would be lower at the firm level than at 
the individual facility level. Once again, the impact analysis showed a 
negligible impact on small entities, because the effect on facility 
sales revenue was so low (0.02 to 0.31 percent). Although EPA was able 
to assess impacts for only a limited number of plants owned by small 
entities, the Agency believes that the results for these plants would 
be representative of other plants owned by small entities.
    EPA has conducted extensive outreach to industry associations and 
organizations representing small government jurisdictions to identify 
small-entity manufacturing facilities. Based on the outreach effort and 
a review of the relevant industry trade literature, EPA concludes that 
although the exact number of facilities owned by small entities that 
would be subject to the proposed rule is difficult to quantify, it is 
evident that for the foreseeable future few, if any, small entities 
would be affected. EPA estimates that only 1.9 percent of all future 
facilities owned by small entities will use cooling water at levels 
that would bring them within the scope of this regulation.
    The small number of small entities subject to this rule in the 
manufacturing sector is not surprising because the facilities likely to 
be subject to the proposed rule are large industrial facilities that 
are not generally owned by small entities. There are multiple reasons 
for the limited projected number of in-scope new facilities owned by 
small entities. The major factors responsible, depending on which

[[Page 49109]]

industry sector is considered, include industry downsizing; expansion 
of capacity at existing facilities as a means of meeting increased 
demand; mergers and acquisitions that reduce the overall number of 
firms; and addition of a significant number of new facilities in at 
least one industry sector as part of a recently completed expansion 
cycle so that additional new facilities are not expected for the 
foreseeable future. The segments of the industries that are the primary 
users of cooling water are mostly large, capital intensive enterprises 
with few, if any, small businesses within their ranks. Moreover, these 
industries are particularly subject to the impacts of globalization, 
including competitive pressures from low-cost foreign producers, 
providing a strong incentive for domestic industry to consolidate to 
secure the market share and realize production efficiencies. In 
addition, startup or expansion of the type of industrial facilities 
subject to today's proposed rule requires significant capital, which 
small businesses cannot easily secure. The nature of manufacturing 
enterprises using cooling water at the levels addressed by today's 
proposed rule is generally inconsistent with small business activity.
    Finally, a minimum flow cutoff of 2 MGD is likely to exempt a 
significant number of small facilities from the requirements of the 
proposed rule. Therefore, EPA believes it is reasonable to conclude 
that in the foreseeable future there will be a negligible increase in 
the number of in-scope small facilities in these manufacturing 
industries.
    Exhibit 7 summarizes the results of Regulatory Flexibility Act/
Small Business Regulatory Enforcement Fairness Act analysis. From the 
small absolute number of facilities owned by small entities that would 
be affected by the proposed rule, and the very low impacts at the 
facility level, EPA concludes that the proposed rule will not have a 
significant economic impact on a substantial number of small entities.

                                   Exhibit 7.--Summary of RFA/SBREFA Analysis
----------------------------------------------------------------------------------------------------------------
                                            Number of
                                           facilities
            Type of facility                owned by     Annual  compliance costs/    Initial  compliance cost/
                                              small        annual sales  revenue          construction cost
                                            entities
----------------------------------------------------------------------------------------------------------------
Steam electric generating facilities....           14   0.07% to 0.15%.............  0.01% to 0.01%.
Manufacturing facilities................            6   0.02% to 0.31%.............  Data not available.
                                         -----------------------------------------------------------------------
    Total...............................           20   0.02% to 0.31%.............  0.01% to 0.01%.
----------------------------------------------------------------------------------------------------------------

    One reason why this proposed rule would not have a significant 
economic impact on a substantial number of small entities is that EPA 
has established a flow level of greater than 2 MGD as the level below 
which facilities would be exempt from the requirements of the proposed 
rule. This minimum flow level exempts many facilities using small 
amounts of water, including facilities owned by small entities, while 
covering approximately 90% of the total cooling water withdrawn from 
the waters of the U.S. EPA also conducted extensive outreach to 
industry associations and organizations that represent small entities, 
to determine how this rule would affect their small entity 
constituents.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcomes comments on issues related 
to such impacts.

D. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The order defines a ``significant regulatory action'' 
as one that is likely to result in a rule that may:
     Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
     Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
     Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
     Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this proposed rule is a ``significant regulatory 
action.'' As such, this action was submitted to OMB for review. Changes 
made in response to OMB suggestions or recommendations will be 
documented in the public record.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications.'' ``Policies 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.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the

[[Page 49110]]

process of developing the proposed regulation.
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Rather, this proposed rule would 
result in minimal administrative costs on States that have an 
authorized NPDES program. EPA expects an annual burden of 2,339 hours 
with an annual cost of $3,200 (non-labor costs) for States to 
collectively administer this proposed rule. Also, based on meetings and 
subsequent discussions with local government representatives from 
municipal utilities, EPA believes that the proposed new facility rule 
may affect, at most, only two large municipalities that own steam 
electric generating facilities. The annual impacts on these facilities 
is not expected to exceed 1,304 burden hours and $36,106 (non-labor 
costs) per facility.
    The proposed national cooling water intake structure requirements 
would be implemented through permits issued under the NPDES program. 
Forty-three States and the Virgin Islands are currently authorized 
pursuant to section 402(b) of the CWA to implement the NPDES program. 
In States not authorized to implement the NPDES program, EPA issues 
NPDES permits. Under the CWA, States are not required to become 
authorized to administer the NPDES program. Rather, such authorization 
is available to States if they operate their programs in a manner 
consistent with section 402(b) and applicable regulations. Generally, 
these provisions require that State NPDES programs include requirements 
that are as stringent as Federal program requirements. States retain 
the ability to implement requirements that are broader in scope or more 
stringent than Federal requirements. (See section 510 of the CWA.)
    Today's proposed rule would not have substantial direct effects on 
either authorized or nonauthorized States or on local governments 
because it would not change how EPA and the States and local 
governments interact or their respective authority or responsibilities 
for implementing the NPDES program. Today's proposed rule establishes 
national requirements for new facilities with cooling water intake 
structures. NPDES-authorized States that currently do not comply with 
the final regulations based on today's proposal might need to amend 
their regulations or statutes to ensure that their NPDES programs are 
consistent with Federal section 316(b) requirements. See 40 CFR 
123.62(e). For purposes of this proposed rule, the relationship and 
distribution of power and responsibilities between the Federal 
government and the States and local governments are established under 
the CWA (e.g., sections 402(b) and 510); nothing in this proposed rule 
would alter that. Thus, the requirements of section 6 of the Executive 
Order do not apply to this rule.
    Although section 6 of Executive Order 13132 does not apply to this 
rule, EPA did consult with State governments and representatives of 
local governments in developing the proposed rule. During the 
development of the proposed Section 316(b) rule for new facilities, EPA 
conducted several outreach activities through which State and local 
officials were informed about this proposal and they provided 
information and comments to the Agency. The outreach activities were 
intended to provide EPA with feedback on issues such as adverse 
environmental impact, BTA, and the potential cost associated with 
various regulatory alternatives.
    EPA held two public meetings in the summer of 1998 to discuss 
issues related to the section 316(b) rulemaking effort. Representatives 
from New York and Maryland attended the meetings and provided input to 
the Agency. The 316(b) workgroup also contacted Pennsylvania and 
Virginia to exchange information on this issue. In addition, EPA 
Regions 1, 3, 4, and 9 served as conduits for transmittal of section 
316(b) information between the Agency and several States. More 
recently, EPA met with industry, environmental, and State and Federal 
government representatives, during May, June, and July of this year to 
discuss regulatory alternatives for the new facility proposal. Comments 
from these meetings helped EPA to evaluate and revise draft regulatory 
framework alternatives.
    In the spirit of this Executive Order and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. 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 
provides that each Federal agency must conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that 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 proposed rule would require that the location, design, 
construction, and capacity of cooling water intake structures at new 
facilities reflect the best technology available for minimizing adverse 
environmental impact. For several reasons, EPA does not expect that 
this proposed rule would 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. The proposed rule 
applies only to new facilities with cooling water intake structures 
that withdraw waters of the U.S. As discussed previously, EPA 
anticipates that this proposed rule would not affect a large number of 
new facilities; therefore, any impacts of the proposed rule would be 
limited. The proposed rule does include location criteria that would 
affect siting decisions made by new facilities, these criteria are 
intended to prevent deterioration of our nation's aquatic resources. 
EPA expects that this proposed rule would preserve the health of 
aquatic ecosystems located in reasonable proximity to new cooling water 
intake structures and that all populations, including minority and low-
income populations, would benefit from such improved environmental 
conditions. In addition, because the proposed rule would help prevent 
decreases in populations of fish and other aquatic species, it is 
likely to help maintain the welfare of subsistence and other low-income 
fishermen or minority low-income populations.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks 

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe might have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the

[[Page 49111]]

environmental health and safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency. This proposed rule is not an economically significant 
rule as defined under Executive Order 12866 and does not involve an 
environmental health or safety risk that would have a disproportionate 
effect on children. Therefore, it is not subject to Executive Order 
13045. Further, this rule does not concern an environmental health or 
safety risk that EPA has reason to believe may disproportionately 
affect children.

H. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments 

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian Tribal governments, and that imposes substantial 
direct compliance costs on those communities unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the Tribal governments or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected Tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian Tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's proposed rule does not significantly or uniquely affect the 
communities of Indian Tribal governments. Given the available data on 
new facilities and the applicability thresholds in the proposed rule, 
EPA estimates that no new facilities subject to the rule will be owned 
by Tribal governments. This rule does not affect Tribes in anyway in 
the foreseeable future. Accordingly, the requirements of section 3(b) 
of Executive Order 13084 do not apply to this rule.

I. National Technology Transfer and Advancement Act 

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) of 1995, Pub L. No. 104-113, Sec. 12(d) directs EPA to use 
voluntary consensus standards in its regulatory activities unless to do 
so would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices that are developed or adopted by voluntary consensus standard 
bodies. The NTTAA directs EPA to provide Congress, through the Office 
of Management and Budget (OMB), explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rule does not involve such technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards. EPA welcomes comments on this aspect of the proposed rule 
and , specifically, invites the public to identify potentially 
applicable voluntary consensus standards and to explain why such 
standards should be used in this proposed rule.

J. Plain Language Directive 

    Executive Order 12866 and the President's memorandum of June 1, 
1998, require each agency to write all rules in plain language. We 
invite your comments on how to make this proposed rule easier to 
understand. For example: Have we organized the material to suit your 
needs? Are the requirements in the rule clearly stated? Does the rule 
contain technical language or jargon that isn't clear? Would a 
different format (grouping and order of sections, use of headings, 
paragraphing) make the rule easier to understand? Would more (but 
shorter) sections be better? Could we improve clarity by adding tables, 
lists, or diagrams? What else could we do to make the rule easier to 
understand?

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.''
    This proposed rule recognizes that there are sensitive biological 
areas within tidal rivers, estuaries, oceans, and the Great Lakes that 
are more susceptible to adverse environmental impact from cooling water 
intake structures. The location of cooling water intake structures is a 
key factor in minimizing adverse environmental impact. This proposal 
provides incentives for facilities to locate their cooling water intake 
structures outside these sensitive biological areas. In those cases 
where a facility does locate a cooling water intake structure inside 
these sensitive areas, EPA is proposing that the facility meet the most 
stringent requirements to minimize adverse environmental impact. This 
proposed rule would improve the survivability of impinged organisms and 
reduce the rate of entrained organisms. Therefore, EPA expects this 
proposal will advance the objective of the executive order to protect 
marine areas. However, because Executive Order 13158 is new as of May 
26, 2000 and EPA has not yet developed implementing regulations, it may 
be necessary to change the requirements for marine protected areas 
under this proposal to comply with any future EPA regulations developed 
to further the objectives of this executive order (e.g., it may be 
necessary to prohibit or severely limit cooling water withdrawals from 
marine protected areas).

XII. Solicitation of Comments and Data

A. Specific Solicitation of Comment and Data

    As noted in the above sections, EPA solicits comments and data on 
many individual topics throughout this preamble. The Agency 
incorporates all such requests for comment here and reiterates its 
interest in receiving comments and data on the issues addressed by 
those requests. In addition, EPA particularly requests comments and 
data on the following issues:
    1. EPA solicits comment on the proposed section 316(b) requirements 
and the methods used to determine the benefit and cost impact values 
supporting this proposed regulation.
    2. EPA solicits comment on the potential impact of the proposed 
rule on

[[Page 49112]]

small entities and on issues related to such impacts.
    3. EPA solicits comment on the scope and applicability of the 
proposed rule, including how EPA has proposed to define ``new 
facility,'' ``cooling water intake structure,'' the various thresholds 
that determine the scope of the rule, and the alternative BTA 
provisions considered by the Agency.
    4. EPA solicits data and comment on the number and types of new 
facilities potentially subject to today's proposed rule.
    5. EPA solicits data and comment on the environmental impacts 
caused by cooling water intake structures at new facilities.
    6. EPA solicits comment on appropriate definitions of ``adverse 
environmental impact'' for purposes of the proposed rule, including 
whether EPA should include a definition of adverse environmental impact 
in the final rule or guidance.
    7. EPA solicits comment on the frameworks proposed and considered 
for BTA, including but not limited to the proposed requirements for 
flow, velocity, location (distance from the littoral zone), and use of 
additional design and construction technologies.
    8. EPA solicits comment on whether it should allow site-specific 
flexibility in the determination of BTA, and if so, under which of the 
regulatory approaches discussed in this preamble.
    9. EPA solicits comment on the possible use of restoration 
measures.
    10. EPA solicits comment on how the Agency has considered the cost 
for new facilities to comply with the proposed BTA requirements.
    11. EPA solicits comment on how the proposed cooling water intake 
structure requirements would be implemented, including the need for and 
burden associated with monitoring, recordkeeping, reporting, and study 
requirements.
    12. EPA solicits comment on how endangered and threatened species 
are considered under the proposed rule.
    13. EPA solicits comment on the monitoring requirement and other 
approaches that could be used to ensure that the design intake velocity 
is not exceeded once the facility is built and operating.
    14. EPA solicits comment on whether additional procedural 
provisions are necessary to establish or clarify the permitting process 
for new facilities employing cooling water intake structures.

B. General Solicitation of Comment 

    EPA encourages public participation in this rulemaking. EPA asks 
that comments address any perceived deficiencies in the record 
supporting this proposal and that suggested revisions or corrections be 
supported by data.
    EPA invites all parties to coordinate their data collection 
activities with the Agency to facilitate mutually beneficial and cost-
effective data submissions. Please refer to the FOR FURTHER INFORMATION 
section at the beginning of this preamble for technical contacts at 
EPA.
    To ensure that EPA can properly respond to comments, the Agency 
prefers that commenters cite, where possible, the paragraph(s) or 
sections in the document or supporting documents to which each comment 
refers. Please submit an original and two copies of your comments and 
enclosures (including references).

List of Subjects

40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

40 CFR Part 122

    Administrative practice and procedure, Confidential business 
information, Hazardous substances, Reporting and recordkeeping 
requirements, Water pollution control.

40 CFR Part 123

    Administrative practice and procedure, Confidential business 
information, Hazardous substances, Indians-lands, Intergovernmental 
relations, Penalties, Reporting and recordkeeping requirements, Water 
pollution control, .

40 CFR Part 124

    Administrative practice and procedure, Air pollution control, 
Hazardous waste, Indians-lands, Reporting and recordkeeping 
requirements, Water pollution control, Water supply.

40 CFR Part 125

    Cooling water intake structures, Reporting and recordkeeping 
requirements, Waste treatment and disposal, Water pollution control.

    Dated: July 20, 2000.
Carol M. Browner,
Adminstrator.
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[[Page 49115]]

    For the reasons set forth in the preamble, chapter I of title 40 of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-1136y; 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, 11345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 
3 CFR, 1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 
300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-
2, 300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 
7542, 9601-9657, 11023, 11048.

    2. In Sec. 9.1 the table is amended by adding entries in numerical 
order under the indicated heading to read as follows:


Sec. 9.1  OMB approvals under the Paper Work Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                             OMB control
                      40 CFR citation                            no.
------------------------------------------------------------------------
 
                  *        *        *        *        *
Criteria and Standards for the National Pollutant Discharge
                     Elimination System
 
                  *        *        *        *        *
125.85.....................................................        2040-
125.87.....................................................        2040-
                  *        *        *        *        *
------------------------------------------------------------------------

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

    1. The authority citation for part 122 continues to read as 
follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

    2. Amend Sec. 122.21 by adding a new paragraph (r)(1) to read as 
follows:


Sec. 122.21  Application for a permit (applicable to State programs, 
see Sec. 123.25)

* * * * *
    (r) Applications for facilities with cooling water intake 
structures--(1) New facilities with new or modified cooling water 
intake structures. New facilities with cooling water intake structures 
as defined in part 125, subpart I of this chapter must report the 
information required under Sec. 125.86 of this chapter. Requests for 
alternative requirements under Sec. 125.85 of this chapter must be 
submitted with your permit application.
    (2) [Reserved].
    3. Amend Sec. 122.44 to add 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 at 
new facilities under section 316(b) of the CWA, in accordance with part 
125, subpart I of this chapter.
* * * * *

PART 123--STATE PROGRAM REQUIREMENTS

    1. The authority citation for part 123 continues to read as 
follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

    2. Amend Sec. 123.25 to revise paragraph (a)(36) to read as 
follows:


Sec. 123.25  Requirements for permitting.

    (a) * * *
    (36) Subparts A, B, D, H, and I of part 125 of this chapter.
* * * * *

PART 124--PROCEDURES FOR DECISIONMAKING

    1. The authority citation for part 124 continues to read as 
follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq.; Clean Water Act, 33 U.S.C. 1251 et seq.; and Clean Air 
Act, 42 U.S.C. 1857 et seq.

    2. Amend Sec. 124.10 to redesignate paragraph (d)(1)(ix) as 
paragraph (d)(1)(x) and to add a new 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 at 
new facilities under section 316(b) of the CWA, in accordance with part 
125, subpart I of this chapter.
* * * * *

PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

    1. The authority citation for part 125 continues to read as 
follows:

    Authority: Clean Water Act, as amended by the Clean Water Act of 
1977, 33 U.S.C. 1251 et seq., unless otherwise noted.

    2. Add subpart I to part 125 to read as follows:

Subpart I--Requirements Applicable to Cooling Water Intake 
Structures for New Facilities under Section 316(b) of the Act

Sec.
125.80  What are the purpose and scope of this subpart?
125.81  Who is subject to this subpart?
125.82  When must I comply with this subpart?
125.83  What special definitions apply to this subpart?
125.84  As an owner or operator of a new facility, what must I do to 
comply with this subpart?
125.85  May alternative requirements be imposed?
125.86  As an owner or operator of a new facility, what must I 
collect and submit when I apply for my new or reissued NPDES permit 
to show that I am complying with this subpart?
125.87  As an owner or operator of a new facility, must I perform 
monitoring?
125.88  As an owner or operator of a new facility, must I keep 
records and report?
125.89  As the Director, what must I do to comply with the 
requirements of this subpart?

Subpart I--Requirements Applicable to Cooling Water Intake 
Structures for New Facilities under Section 316(b) of the Act


Sec. 125.80  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 new facilities. The purpose of these requirements is to 
minimize adverse environmental impact associated with the use of 
cooling water intake structures. These requirements must be implemented 
through National Pollutant Discharge Elimination System (NPDES) permits 
issued under section 402 of the Clean Water Act (CWA).
    (b) This subpart implements section 316(b) of the CWA for new 
facilities. Section 316(b) of the CWA provides that any standard 
established pursuant to sections 301 or 306 of the CWA and applicable 
to a point source shall require that the location, design, 
construction, and capacity of cooling water intake structures reflect 
the best technology available for minimizing adverse environmental 
impact.
    (c) 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

[[Page 49116]]

more stringent than those required by Federal law.


Sec. 125.81  Who is subject to this subpart?

    This subpart applies to all new facilities that propose to use a 
cooling water intake structure; that are, or will be, subject to a 
National Pollutant Discharge Elimination System (NPDES) permit; and 
that have a design intake flow of greater than two (2) million gallons 
per day (MGD).


Sec. 125.82  When must I comply with this subpart?

    New facilities subject to this subpart must comply with this 
subpart before they begin to withdraw cooling water.


Sec. 125.83  What special definitions apply to this subpart?

    When used in this subpart:
    7Q10 means the lowest average seven-consecutive-day low flow with 
an average recurrence frequency of once in 10 years determined 
hydrologically.
    Annual mean flow means the average of daily flows over a calendar 
year. Historical data (up to 10 years) should be used where available.
    Closed-cycle recirculating system means a system designed, using 
minimized makeup and blowdown flows, to withdraw water from a natural 
or other water source to support contact and 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 and 
then is returned to the system. (Some facilities divert the waste heat 
to other process operations.) New source water (makeup 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 air conditioning, 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 intake structure means the total physical structure 
and any associated constructed waterways used to withdraw water from 
waters of the U.S., provided that at least 25 percent of the water 
withdrawn is used for cooling purposes. The cooling water intake 
structure extends from the point at which water is withdrawn from the 
surface water source to the first intake pump or series of pumps.
    Design intake flow means the value assigned (during the facility's 
design) to the total volume of water withdrawn from a source water body 
over a specific time period.
    Design intake velocity means the value assigned (during the design 
of a cooling water intake structure) to the average speed at which 
intake water passes through the open area of the intake screen (or 
other device) against which organisms might be impinged or through 
which they might be entrained.
    Entrainment means the incorporation of fish, eggs, larvae, and 
other plankton with intake water flow entering and passing through a 
cooling water intake structure and into a cooling water system.
    Estuary means all or part of the mouth of a river or stream or 
other body of water having an unimpaired natural connection with open 
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 less than 30 parts per thousand 
(by mass).
    Existing facility means any facility that is not a new facility.
    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.
    Impingement means the entrapment of aquatic organisms on the outer 
part of an intake structure or against a screening device during 
periods of intake water withdrawal.
    Lake 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 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 might be fed by rivers, streams, 
springs, and/or local precipitation.
    Littoral zone means any nearshore area in a freshwater river or 
stream, lake or reservoir, or estuary or tidal river extending from the 
level of highest seasonal water to the deepest point at which submerged 
aquatic vegetation can be sustained (i.e., the photic zone extending 
from shore to the substrate receiving one (1) percent of incident 
light); where there is a significant change in slope that results in 
changes to habitat and/or community structure; and where there is a 
significant change in the composition of the substrate (e.g., cobble to 
sand, sand to mud). In oceans, the littoral zone encompasses the photic 
zone of the neritic region. The photic zone is that part of the water 
that receives sufficient sunlight for plants to be able to 
photosynthesize. The neritic region is the shallow water or nearshore 
zone over the continental shelf.
    Maximize means to increase to the greatest possible amount, extent, 
or degree.
    Minimize means to reduce to the smallest possible amount, extent, 
or degree.
    Natural thermal stratification means the naturally occurring 
division of a waterbody into horizontal layers of differing densities 
as a result of variations in temperature at different depths.
    New facility means any building, structure, facility, or 
installation that meets the definition of a ``new source'' or ``new 
discharger;'' in 40 CFR 122.2 and 122.29(b)(1), (2), and (4); commences 
construction after [the effective date of the final rule]; and has a 
new or modified cooling water intake structure.
    Ocean means marine open coastal waters with a salinity greater than 
or equal to 30 parts per thousand (by mass).
    Reservoir means any natural or constructed basin where water is 
collected and stored.
    Source water means the water body (waters of the U.S.) from which 
the cooling water is withdrawn.
    Tidal excursion means the horizontal distance along the estuary 
that a particle moves during one tidal cycle of ebb and flow.
    Tidal river means the most seaward reach of a river or stream where 
the salinity is 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. 125.84  As an owner or operator of a new facility, what must I do 
to comply with this subpart?

    (a) If your new facility's cooling water intake structure is 
located in any of the types of water bodies in the first column of the 
following table, you must comply with the requirements in the second 
column.

[[Page 49117]]



------------------------------------------------------------------------
 If your cooling water intake structure is
           located in a[n] . . .                     Then . . .
------------------------------------------------------------------------
(1) Freshwater river or stream............  You must comply with
                                             paragraphs (b), (f), and
                                             (g) of this section and
                                             applicable requirements in
                                             Sec.  125.86 (application
                                             requirements), Sec.  125.87
                                             (monitoring requirements),
                                             and Sec.  125.88
                                             (recordkeeping
                                             requirements).
(2) Lake or reservoir.....................  You must comply with
                                             paragraphs (c), (f), and
                                             (g) of this section and
                                             applicable requirements in
                                             Sec.  125.86 (application
                                             requirements), Sec.  125.87
                                             (monitoring requirements),
                                             and Sec.  125.88
                                             (recordkeeping
                                             requirements).
(3) Estuary or tidal river................  You must comply with
                                             paragraphs (d), (f), and
                                             (g) of this section and
                                             applicable requirements in
                                             Sec.  125.86 (application
                                             requirements), Sec.  125.87
                                             (monitoring requirements),
                                             and Sec.  125.88
                                             (recordkeeping
                                             requirements).
(4) Ocean.................................  You must comply with
                                             paragraphs (e), (f), and
                                             (g) of this section and
                                             applicable requirements in
                                             Sec.  125.86 (application
                                             requirements), Sec.  125.87
                                             (monitoring requirements),
                                             and Sec.  125.88
                                             (recordkeeping
                                             requirements).
------------------------------------------------------------------------

    (b) If your new facility has one or more cooling water intake 
structures located in a freshwater river or stream, you must comply 
with the requirements of paragraphs (b)(1), (b)(2), or (b)(3) of this 
section. A table summarizing the applicable requirements follows.

Table-Summary of Requirements for Freshwater Rivers or Streams Based on the Location of the Cooling Water Intake
                                                    Structure
----------------------------------------------------------------------------------------------------------------
                                                         Location of Cooling Water Intake Structure Opening
                                                  --------------------------------------------------------------
                                                       50
                   Requirements                       Meters Outside      50 Meters Outside    Inside Littoral
                                                   Littoral Zone [Sec.  Littoral Zone [Sec.       Zone [Sec.
                                                       125.84(b)(1)]        125.84(b)(2)]       125.84(b)(3)]
----------------------------------------------------------------------------------------------------------------
1. Design intake flow 5% source water                                     
 annual mean flow or 25% of source
 water 7q10......................................
2. Design intake velocity 0.5 ft/s....                                    
3. Reduce intake flow to a level commensurate                                               
 with a closed cycle recirculating cooling water
 system..........................................
4. Implement additional design and construction                                                    
 technologies....................................
----------------------------------------------------------------------------------------------------------------

    (1) If the opening to your cooling water intake structure is 
located at least 50 meters outside the littoral zone in a freshwater 
river or stream, you must meet all of the following requirements:
    (i) The total design intake flow from all cooling water intake 
structures at your facility must be no more than the more stringent of 
5 percent of the source water annual mean flow or 25 percent of the 
source water 7Q10;
    (ii) The maximum design intake velocity at each cooling water 
intake structure at your facility must be no more than 0.5 ft/s.
    (2) If the opening to your cooling water intake structure is 
located less than 50 meters outside the littoral zone in a freshwater 
river or stream, you must meet all of the following requirements:
    (i) The total design intake flow from all cooling water intake 
structures at your facility must be no more than the more stringent of 
5 percent of the source water annual mean flow or 25 percent of the 
source water 7Q10;
    (ii) The maximum design intake velocity at each cooling water 
intake structure at your facility must be no more than 0.5 ft/s;
    (iii) You must reduce your intake flow to a level commensurate with 
that which can be attained by a closed-cycle recirculating cooling 
water system;
    (3) If the opening to your cooling water intake structure is 
located inside the littoral zone in a freshwater river or stream, you 
must meet all of the following requirements:
    (i) The total design intake flow from all cooling water intake 
structures at your facility must be no more than the more stringent of 
5 percent of the source water annual mean flow or 25 percent of the 
source water 7Q10;
    (ii) The maximum design intake velocity at all cooling water intake 
structures at your facility must be no more than 0.5 ft/s;
    (iii) You must reduce your intake flow to a level commensurate with 
that which can be attained by a closed-cycle recirculating cooling 
water system;
    (iv) You must implement additional design and construction 
technologies that minimize impingement and

[[Page 49118]]

entrainment of fish, eggs, and larvae and maximize survival of impinged 
adult and juvenile fish;
    (c) If your new facility has one or more cooling water intake 
structures located in a lake or reservoir, you must comply with the 
requirements of paragraphs (c)(1), (c)(2), or (c)(3) of this section. A 
table summarizing the applicable requirements follows.

     Table-Summary of Requirements for Lakes or Reservoirs Based on the Location of the Cooling Water Intake
                                                    Structure
----------------------------------------------------------------------------------------------------------------
                                                         Location of Cooling Water Intake Structure Opening
                                                  --------------------------------------------------------------
                                                      50        50
                   Requirements                       Meters Outside       Meters Outside      Inside Littoral
                                                   Littoral Zone [Sec.  Littoral Zone [Sec.       Zone [Sec.
                                                       125.84(c)(1)]        125.84(c)(2)]       125.84(c)(3)]
----------------------------------------------------------------------------------------------------------------
1. Design intake flow must not alter the natural                                     
 thermal stratification..........................
2. Design intake velocity 0.5 ft/s....                                           
3. Reduce intake flow to a level commensurate                                               
 with a closed cycle recirculating cooling water
 system..........................................
4. Implement additional design and construction                                                    
 technologies....................................
----------------------------------------------------------------------------------------------------------------

    (1) If the opening to your cooling water intake structure is 
located at least 50 meters outside the littoral zone in a lake or 
reservoir, you must meet all of the following requirements: The total 
design intake flow at your facility must not alter the natural thermal 
stratification of the source water.
    (2) If the opening to your cooling water intake structure is 
located less than 50 meters outside the littoral zone in a lake or 
reservoir, you must meet all of the following requirements:
    (i) The total design intake flow at your facility must not alter 
the natural thermal stratification of the source water;
    (ii) The maximum design intake velocity at each cooling water 
intake structure at your facility must be no more than 0.5 ft/s;
    (iii) You must reduce your intake flow to a level commensurate with 
that which can be attained by a closed-cycle recirculating cooling 
water system;
    (3) If the opening to your cooling water intake structure is 
located inside the littoral zone in a lake or reservoir, you must meet 
all of the following requirements:
    (i) The total design intake flow at your facility must not alter 
the natural thermal stratification of the source water;
    (ii) The maximum design intake velocity at each cooling water 
intake structure at your facility must be no more than 0.5 ft/s;
    (iii) You must reduce your intake flow to a level commensurate with 
that which can be attained by a closed-cycle recirculating cooling 
water system;
    (iv) You must implement additional design and construction 
technologies that minimize impingement and entrainment of fish, eggs, 
and larvae and maximize survival of impinged adult and juvenile fish;
    (d) If your new facility has one or more cooling water intake 
structures located in an estuary or a tidal river, you must comply with 
the requirements of paragraph (d)(1) of this section. A table 
summarizing the applicable requirements follows.

Table-Summary of Requirements for Estuaries or Tidal Rivers Based on the
             Location of the Cooling Water Intake Structure
------------------------------------------------------------------------
                                                     Location of Cooling
                                                         Water Intake
                                                      Structure Opening
     Requirements for estuaries or tidal rivers     --------------------
                                                     Anywhere in Estuary
                                                        or Tidal River
                                                            [Sec.
--------------------------------------------------------125.84(d)(1)]---
1. Design intake flow 1% of the volume            
 of the water column (see 125.84(d)(1))............
2. Design intake velocity 0.5 ft/s......          
3. Reduce intake flow to a level commensurate with           
 a closed cycle recirculating cooling water system.
4. Implement additional design and construction              
 technologies......................................
------------------------------------------------------------------------

    (1) If the opening to your cooling water intake structure is 
located anywhere in an estuary or a tidal river, you must meet all of 
the following requirements:
    (i) The total design intake flow from all cooling water intake 
structures at your facility must be no greater than one (1) percent of 
the volume of the water column within the area centered about the 
opening of the intake with a diameter defined by the distance of one 
tidal excursion at the mean low water level;
    (ii) The maximum design intake velocity at all cooling water intake 
structures at your facility must be no more than 0.5 ft/s;
    (iii) You must reduce your intake flow to a level commensurate with 
that which can be attained by a closed-cycle recirculating cooling 
water system;
    (iv) You must implement additional design and construction 
technologies that minimize impingement and entrainment of fish, eggs, 
and larvae and maximize survival of impinged adult and juvenile fish;
    (e) If your new facility has one or more cooling water intake 
structures located in an ocean, you must comply with the requirements 
of paragraphs (e)(1) or (2) of this section. A table summarizing the 
applicable requirements follows.

[[Page 49119]]



  Table-Summary of Requirements for Oceans Based on the Location of the
                     Cooling Water Intake Structure
------------------------------------------------------------------------
                                    Location of cooling water intake
                                            structure opening
                               -----------------------------------------
         Requirements             Outside littoral     Inside littoral
                                     zone [Sec.           zone [Sec.
                                   125.84(e)(1)]        125.84(e)(2)]
------------------------------------------------------------------------
1. Design intake velocity               
 thn-eq> 0.5 ft/s.............
2. Reduce intake flow to a                                      
 level commensurate with a
 closed cycle recirculating
 cooling water system.........
3. Implement additional design                                  
 and construction technologies
------------------------------------------------------------------------

    (1) If the opening to your cooling water intake structure is 
located outside the littoral zone in an ocean, you must meet all of the 
following requirements:
    (i) The maximum design intake velocity at each cooling water intake 
structure at your facility must be no more than 0.5 ft/s.
    (2) If the opening to your cooling water intake structure is 
located inside the littoral zone in an ocean, you must meet all of the 
following requirements:
    (i) The maximum design intake velocity at each cooling water intake 
structure at your facility must be no more than 0.5 ft/s;
    (ii) You must reduce your intake flow to a level commensurate with 
that which can be attained by a closed-cycle recirculating cooling 
water system;
    (iii) You must implement additional design and construction 
technologies that minimize impingement and entrainment of fish, eggs, 
and larvae and maximize survival of impinged adult and juvenile fish;
    (f) The Director may include more stringent requirements in the 
permit than those specified in paragraphs (a) through (e) of this 
section if he or she determines that they are reasonably necessary to 
minimize impingement and entrainment as a result of the effects of 
multiple cooling water intake structures in the same body of water; 
seasonal variations in the aquatic environment affected by the cooling 
water intake structures controlled by the permit; or the presence of 
regionally important species.
    (g) The Director must include any more stringent requirements 
relating to the location, design, construction, and capacity of a 
cooling water intake structure at a new facility that are reasonably 
necessary to ensure attainment of water quality standards, including 
designated uses, criteria, and antidegradation requirements.


Sec. 125.85  May alternative requirements be imposed?

    (a) Any interested person may request that alternative requirements 
less stringent than those specified in Sec. 125.84(a) through (e) be 
imposed in the permit. The Director also may propose alternative 
requirements in the draft permit. A request for the establishment of 
alternative requirements less stringent than the requirements of 
Sec. 125.84(a) through (e) may be approved only if:
    (1) There is an applicable requirement under Sec. 125.84(a) through 
(e);
    (2) Data specific to the facility indicate that compliance with the 
requirement at issue would result in compliance costs wholly out of 
proportion to the costs EPA considered in establishing the requirement 
at issue;
    (3) The alternative requirement requested is no less stringent than 
justified by the wholly out of proportion cost; and
    (4) The alternative requirement will ensure compliance with 
sections 208(e) and 301(b)(1)(C) of the Clean Water Act.
    (b) The burden is on the person requesting the alternative 
requirement to demonstrate that alternative requirements should be 
imposed. The requester should refer to all relevant information, 
including the support documents for this rulemaking, all associated 
data collected for use in developing each requirement, and other 
relevant information that is kept on public file by EPA to demonstrate 
that the appropriate requirements of paragraph (a) of this section have 
been met.


Sec. 125.86  As an owner or operator of a new facility, what must I 
collect and submit when I apply for my new or reissued NPDES permit to 
show that I am complying with this subpart?

    (a) Source water baseline biological characterization. As an owner 
or operator of a new facility, you must begin to collect source water 
baseline biological characterization data at least 1 year before you 
must submit your permit application to the Director.
    (1) This information is required to evaluate the condition of the 
biological community and to identify potential (and/or to minimize 
actual) entrainment and impingement impacts from each cooling water 
intake structure. The Director will use the information to determine 
compliance with requirements involving additional design and 
construction technology requirements and the need for more stringent 
requirements under Sec. 125.84(f) and (g). As part of this evaluation, 
you must collect data on both nekton and meroplankton to determine the 
abundance of relevant species or taxa, and life stages in the water 
column in the vicinity of each proposed or actual cooling water intake 
structure. Based on the available life history information and 
collected data, you also must determine which species and life stages 
would be most susceptible to impingement or entrainment. With the 
Director's approval, you may use existing data instead of actual field 
studies. You must comply with the following requirements and document 
them in a report submitted to the Director.
    (2)(i) If you are required to comply with the requirements in 
Sec. 125.84(b)(3), (c)(3), (d)(1), or (e)(2), you must develop a 
sampling plan that documents all methods and quality assurance 
procedures for data collection, sampling, and analysis. You must submit 
this plan to the Director for review and approval before any sampling 
activities begin.
    (ii) If you are required to comply with the requirements in 
Sec. 125.84(b)(1), (b)(2), (c)(1), (c)(2), or (e)(1), you must develop 
a sampling plan that documents all methods and quality assurance 
procedures for data collection, sampling, and analysis and maintain the 
plan at your facility. You are not required to submit this plan to the 
Director.
    (iii) The sampling and data analysis methods you propose must be 
appropriate for a quantitative survey and based on a consideration of 
methods used in other biological studies performed in the source water 
body. The study area should include, at a minimum, the area of 
influence of the cooling water intake structure. The sampling plan must 
include a

[[Page 49120]]

description of the study area (which must include the area of influence 
of the cooling water intake structure and at least 100 meters beyond); 
a list and description of other relevant studies; a proposal to use 
data in lieu of actual sampling (if applicable); identification of the 
biological assemblages to be sampled (both nekton and meroplankton); 
data collection, sampling, and analysis methods; and any public 
participation or consultation with Federal or State agencies undertaken 
in development of the plan.
    (3) All owners or operators of new facilities must comply with the 
following requirements:
    (i) Identify up to ten (10) species most important in terms of 
significance to commercial and recreational fisheries and the forage 
base.
    (ii) Identify all threatened and endangered species that might be 
susceptible to impingement and entrainment.
    (iii) Conduct a sampling program covering at least a 1-year cycle 
of biological activity in the vicinity of the cooling water intake 
structure. If you are required to submit a sampling plan to the 
director in paragraph (a) (2)(i) of this section, the sampling must be 
based on the Director's approved sampling plan.
    (iv) Determine which species are most susceptible to impingement or 
entrainment based on the information collected and the primary period 
of reproduction, larval recruitment, and peak meroplankton abundance.
    (b) As an owner or operator of a new facility, you must submit the 
following information to the Director when you apply for a new or 
reissued NPDES permit in accordance with 40 CFR 122.21:
    (1) Source water physical data. As an owner or operator of a new 
facility, you must submit the following source water information that 
demonstrates and supports a determination of the appropriate 
requirements to apply to your cooling water intake structures.
    (i) A narrative description and scaled drawings showing the 
physical configuration of all source water bodies, including areal 
dimensions, depths, salinity regimes, and other documentation that 
supports your determination of the water body type where each cooling 
water intake structure is located;
    (ii) A narrative description of the configuration of each cooling 
water intake structure and where it is located in the water body and in 
the water column;
    (iii) Documentation delineating the littoral zone of the water body 
in the vicinity of each cooling water intake structure, including light 
penetration and hydromorphological data, submerged aquatic vegetation, 
substrate data, and a demonstration of where the cooling water intake 
structure is located in relation to the littoral zone; and
    (iv) Latitude and longitude in degrees, minutes, and seconds for 
each of your cooling water intake structures;
    (v) Engineering drawings and locational maps to illustrate the 
information required by paragraphs (b)(1)(i), (ii), and (iii) of this 
section.
    (vi) A report documenting the results of the Source Water Baseline 
Characterization required in paragraph (a) of this section.
    (2) Cooling water intake structure flow data. As an owner or 
operator of a new facility, you must submit the following information 
that demonstrates and supports a determination of the appropriate 
requirements to apply to your cooling water intake structures.
    (i) A narrative description of the operation of all cooling water 
intake structures, including design intake flows, daily hours of 
operation, and seasonal changes, if applicable; and
    (ii) A flow distribution and water balance diagram that includes 
all sources of water to the facility, recirculating flows, and 
discharges.
    (3) Flow requirements. If you must comply with the cooling water 
intake structure flow requirements in Sec. 125.84(b)(2)(iii), 
(b)(3)(iii), (c)(2)(iii), (c)(3)(iii), (d)(1)(iii), (e)(1)(ii), or 
(e)(2)(iii), you must submit the following information to the Director:
    (i) If your cooling water intake structure is located in a 
freshwater river or stream, you must provide the annual mean and 7Q10 
flows and any supporting documentation and engineering calculations to 
show that your cooling water intake structure meets the flow 
requirements.
    (ii) If your cooling water intake structure is located in an 
estuary or tidal river, you must provide the mean low water tidal 
excursion distance and any supporting documentation and engineering 
calculations to show that your cooling water intake structure facility 
meets the flow requirements.
    (iii) If your cooling water intake structure is located in a lake 
or reservoir, you must provide a narrative description of the water 
body stratification, and any supporting documentation and engineering 
calculations to show that the stratification will not be upset by the 
design intake flow.
    (4) Velocity requirement. If you must comply with the cooling water 
intake structure velocity requirement in Sec. 125.84(b)(1)(ii), 
(b)(2)(ii), (b)(3)(ii), (c)(2)(ii), (c)(3)(ii), (d)(1)(ii), (e)(1)(i), 
or (e)(2)(i), you must submit the following information to the 
Director:
    (i) A narrative description of the design, structure, equipment, 
and operation used to meet the velocity requirement; and
    (ii) Design calculations showing that the velocity requirement will 
be met at minimum ambient source water surface elevation and maximum 
head loss across the screens or other device.
    (5) Flow reduction requirement. If you must comply with the 
requirement to reduce your flow to a level commensurate with that which 
can be attained by a closed-cycle recirculating cooling water system in 
Sec. 125.84(b)(2)(iii), (b)(3)(iii), (c)(2)(iii), (c)(3)(iii), 
(d)(1)(iii), (e)(1)(ii), or (e)(2)(ii), you must submit a narrative 
description of the closed-cycle recirculating cooling water system 
design and any engineering calculations, including documentation 
demonstrating that your make-up and blowdown have been minimized. If 
you meet the flow reduction requirement by reusing 100 percent of the 
cooling water withdrawn from a source water, you must provide a 
demonstration that 100 percent of the cooling water is reused in one or 
more unit processes at the facility.
    (6) Additional design and construction technology requirement. If 
you must comply with the requirement in Sec. 125.84(b)(3)(iv), 
(c)(3)(iv), (d)(2)(iv), or (e)(2)(iii) to implement additional design 
and construction technologies that maximize the survival of impinged 
adult and juvenile fish and minimize the entrainment of fish, eggs, and 
larvae, you must submit to the Director for review and approval a plan 
that contains information on the technologies you propose to implement 
based on the results of the Source Water Baseline Biological 
Characterization required by Sec. 125.86(a). The plan must contain the 
following information:
    (i) A narrative description of the design and operation of any 
additional design and construction technologies, including fish-
handling and return systems, that you will use to maximize the survival 
of those species expected to be most susceptible to impingement. 
Provide species-specific information that demonstrates the efficacy of 
the technology.
    (ii) A narrative description of the design and operation of any 
additional design and construction technologies that you will use to 
minimize entrainment of those species expected to be the most 
susceptible to entrainment. Provide species-specific information

[[Page 49121]]

that demonstrates the efficacy of the technology.
    (iii) Design calculations, drawings, and estimates to support the 
descriptions provided in paragraphs (b)(6)(i) and (ii) of this section.
    (7) Data to support alternative requirements. If you are seeking 
alternative requirements under Sec. 125.85, you must submit data that 
demonstrate that your compliance costs are wholly out of proportion to 
the costs considered by EPA in establishing the requirements in 
Sec. 125.84 (a) through (e).
    (8) Other data. As an owner or operator you must submit other 
information required by the Director to determine appropriate 
requirements and other permit conditions to minimize adverse 
environmental impact.


Sec. 125.87  As an owner or operator of a new facility, must I perform 
monitoring?

    As an owner or operator of a new facility, you will be required to 
perform monitoring to demonstrate your compliance with the velocity 
requirement specified in Sec. 125.84, perform visual inspection of the 
technologies installed, and assess the need for additional design and 
construction technologies to minimize entrainment and maximize 
impingement survival. This section contains monitoring requirements, 
including how often you must monitor.
    (a) Biological monitoring. You must monitor both impingement and 
entrainment of the commercial and recreational fisheries and the forage 
base species identified in the Source Water Baseline Biological 
Characterization required by Sec. 125.86(a). The monitoring methods 
used must be consistent with those used for the Source Water Baseline 
Biological Characterization required under Sec. 125.86(a). You must 
follow the monitoring frequencies identified below for at least two (2) 
years after the initial permit issuance. After that time, the Director 
may approve a request for less frequent sampling in the remaining years 
of the permit term and when the permit is reissued, if supporting data 
show that less frequent monitoring would still allow for the detection 
of any seasonal and daily variations in the species and numbers of 
individuals that are impinged or entrained.
    (1) Impingement. You must collect samples to monitor impingement 
rates for each species over a 24-hour period and no less than once per 
month.
    (2) Entrainment. You must collect samples to monitor entrainment 
rates for each species over a 24-hour period and no less than biweekly 
during the primary period of reproduction, larval recruitment, and peak 
meroplankton abundance identified during the Source Water Baseline 
Biological Characterization required by Sec. 125.86(a).
    (b) Velocity monitoring. If your facility uses intake screen 
systems, you must monitor head loss across the screens and correlate 
the measured value with the design intake velocity. The head loss 
across the intake screen must be measured at the minimum ambient source 
water surface elevation and maximum head loss for each cooling water 
intake structure. If your facility uses devices other than intake 
screens, you must monitor velocity at the point of entry through the 
device. You must monitor head loss or velocity during initial facility 
startup, and thereafter, at the frequency specified in your NPDES 
permit, but no less than once per quarter.
    (c) Visual inspections. You must conduct visual inspections at 
least weekly to ensure that any additional design and construction 
technologies implemented under the plan required by Sec. 125.86(b)(6), 
and other technologies to minimize entrainment and maximize impingement 
survival are maintained and operated so as to ensure that they will 
continue to function as designed.


Sec. 125.88  As an owner or operator of a new facility, must I keep 
records and report?

    As an owner or operator of a new facility you are required to keep 
records and to 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, any 
supplemental information developed under Sec. 125.86, and any 
compliance monitoring data submitted under Sec. 125.87, for a period of 
at least three (3) years from the date of permit issuance. The Director 
may require that these records be kept for a longer period.
    (b) You must provide the following to the Director in a yearly 
status report:
    (1) Biological monitoring records for each cooling water intake 
structure as required by Sec. 125.87(a);
    (2) Velocity and head loss monitoring records for each cooling 
water intake structure as required by Sec. 125.87(b); and
    (3) Records of visual inspections as required in Sec. 125.87(c).


Sec. 125.89  As the Director, what must I do to comply with the 
requirements of this subpart?

    (a) Sampling plan for source water baseline biological 
characterization. As the Director, you must review and approve, approve 
with comments, or disapprove, the sampling plan required by 
Sec. 125.86(a)(2)(i) within 90 days.
    (b) Permit application. As the Director, you must review materials 
submitted by the applicant under Sec. 125.86(b) at the time of the 
initial permit application and before each permit renewal or reissuance 
to determine whether there have been any changes in facility operations 
or physical and biological attributes of the source water body. You 
must evaluate any changes to determine the need for additional or more 
stringent conditions in the permit.
    (c) Permitting requirements. Section 316(b) requirements are 
imposed on facilities through NPDES permits. As the Director, you must 
determine, based on the information submitted by the new facility in 
its permit application, the appropriate requirements and conditions to 
include in the permit based on the location of the cooling water intake 
structure and the water body type. You must also review and approve, 
approve with comments, or disapprove any plan submitted under 
Sec. 125.86(a) or (b)(6). The following requirements must be included 
in each permit:
    (1) Cooling water intake structure requirements. At a minimum, the 
permit conditions must include conditions that implement the 
requirements of Sec. 125.84. In addition, you must consider whether 
more stringent conditions are reasonably necessary in accordance with 
Sec. 125.84(f) and (g).
    (2) Monitoring conditions. At a minimum, the permit must require 
the permittee to perform the monitoring required by Sec. 125.87. You 
may modify the monitoring program when the permit is reissued and 
during the term of the permit based on changes in physical or 
biological conditions in the vicinity of the cooling water intake 
structure.
    (3) Recordkeeping and reporting. At a minimum, the permit must 
require the permittee to report and keep records as required by 
Sec. 128.88.
    3. Revise the subpart heading for subpart J to read as follows:

Subpart J--Criteria and Standards Applicable to Cooling Water 
Intake Structures for Existing Facilities Under Section 316(b) of 
the Act--[Reserved]

[FR Doc. 00-19373 Filed 8-9-00; 8:45 am]
BILLING CODE 6560-50-P