[Federal Register Volume 66, Number 102 (Friday, May 25, 2001)]
[Proposed Rules]
[Pages 28853-28872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13187]


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ENVIRONMENTAL PROTECTION AGENCY

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

[FRL-6981-1]


Notice of Data Availability; National Pollutant Discharge 
Elimination System--Regulations Addressing Cooling Water Intake 
Structures for New Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; Notice of data availability.

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SUMMARY: On August 10, 2000, EPA proposed standards for cooling water 
intake structures at new facilities to implement section 316(b) of the 
Clean Water Act (CWA) (65 FR 49060). This notice presents a summary of 
the data EPA has received or collected since proposal, an assessment of 
the relevance of the data to EPA's analysis, some modified technology 
options suggested by commenters, and an alternative approach suggested 
by a trade group representing the utility industry. EPA solicits public 
comments about any of the information presented in this notice and the 
record supporting this notice.

DATES: Comments on this notice of data availability must be received or 
postmarked on or before midnight June 25, 2001.

ADDRESSES: Mail public comments regarding this notice of data 
availability to: Cooling Water Intake Structure (New Facilities) 
Proposed Rule Comment Clerk--W-00-03, Water Docket, Mail Code 4101, 
EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW, Washington, DC 
20460. Deliver your comments in person (including overnight mail) to 
the Cooling Water Intake Structure (New Facilities) Proposed Rule 
Comment Clerk--W-00-03, Water Docket, Room EB 57, 401 M Street, SW, 
Washington, DC 20460. You may also submit comments electronically to 
[email protected]. Please submit any references cited in your comments. 
Please submit an original and three copies of your written comments and 
enclosures. For additional information on how to submit comments, see 
SUPPLEMENTARY INFORMATION, How May I Submit Comments?''

FOR FURTHER INFORMATION CONTACT: Deborah G. Nagle at (202) 260-2656. 
The e-mail address for the above contact is [email protected].

SUPPLEMENTARY INFORMATION:

Contents

I. Purpose of this Notice

[[Page 28854]]

II. Data Obtained Since the Proposal
    A Regulatory Thresholds
    B Industry Profile for Utility and Nonutility Electricity 
Generators
    C. Industry Profile for Manufacturers
    D. New Data and Refinements to the New Facility Framework Based 
on Waterbody Type
    E. Additional Data and Information Concerning the Impingement 
and Entrainment Approach and the Population Approach and Biological 
Assessment Approach to Defining Adverse Environmental Impact
    F. Additional Data Related to the Specific Technology Limits in 
the Proposed Regulations
    G. Revision in Costing and Energy Impact Estimates
    H. Industry Approach

I. Purpose of This Notice

    On August 10, 2000 (65 FR 49060), EPA proposed standards for 
cooling water intake structures at new facilities to implement section 
316(b) of the Clean Water Act (CWA) (see #2-001 in the Docket). EPA has 
received numerous comments and data submissions concerning the proposal 
and has collected additional data. In this notice, EPA is making these 
new data available for comment and is assessing the relevance of the 
data to EPA's analysis. Since the end of the comment period, EPA also 
received an alternative regulatory approach suggested by a trade group 
representing the utility industry which is discussed in this notice and 
is included in the record for the rule. EPA has initially reviewed this 
approach and, in this notice, suggests modifications to the approach 
that are being considered for the final rule. EPA solicits public 
comments regarding any of the information presented in this notice and 
the record supporting this notice.

II. Data Obtained Since the Proposal

A. Regulatory Thresholds

    EPA proposed that the term ``cooling water intake structure'' means 
the total physical structure and any associated constructed waterways 
used to withdraw water from waters of the U.S., provided that at least 
twenty-five (25) percent of the water withdrawn is used for cooling 
purposes (see proposed 40 CFR 125.83, 65 FR 49116). A number of 
commenters asserted that EPA did not provide a rational basis in its 
record for proposing that use of 25% of intake flow for cooling should 
determine whether an intake structure is a ``cooling water intake 
structure.'' In response to these comments, EPA requests comment on 
preliminary data the Agency recently gathered from its detailed 
questionnaire for existing facilities. These data document the 
percentage of manufacturing facilities that use the following 
percentages of water withdrawn from waters of the U.S. for cooling 
purposes: more than 5% (87% of the manufacturing facilities); more than 
10% (82% of manufacturing facilities); more than 15% (77% of 
manufacturing facilities); more than 20% (74% of manufacturing 
facilities); more than 25% (68% of manufacturing facilities); and more 
than 50% (49% of manufacturing facilities). See ``Percentages of In-
scope Facilities Using Various Proportions of Their Intake Water for 
Cooling Purposes' (#2-002 in the Docket). EPA will continue refining 
these data by, as necessary, calling back certain facilities to clarify 
any data quality concerns. The Agency will use these data to estimate 
the effect of alternative thresholds on the amount of new cooling water 
subject to this rulemaking. EPA will determine whether to revise the 
definition of a cooling water intake structure for the final new 
facility regulation based on this information, other information 
noticed today on adverse environmental impact (Section E below), 
waterbody sensitivity (Section D below) and proposed limitations on 
intake capacity based on waterbody flow rates (Section F below) and on 
information already in the record.
    To improve the definition in EPA's proposal (65 FR 49066-49067), 
EPA requests comment on two alternatives:
     New facility intake structures not subject to this rule 
because of the amount of cooling water they use are not considered 
cooling water intake structures for regulatory purposes and thus would 
not be subject to section 316(b) of the CWA; or
     New facility intake structures not subject to this rule 
because of the amount of cooling water they use may be subject to 
requirements established by permit authorities under CWA section 316(b) 
on a case-by-case basis.
    EPA's proposed regulations would apply to new facilities that have 
a cooling water intake structure with a design intake capacity of 
greater than or equal to two (2) million gallons per day (MGD) of 
source water. 65 FR 49067-49068. Since proposal, EPA collected 
preliminary data from its detailed questionnaire for existing 
facilities. These data document the percentage of existing facilities 
constructed in the last 10 years that would be covered by national 
regulation at the following alternative regulatory flow thresholds: 2 
MGD, 5 MGD, 10 MGD, 15 MGD, 20 MGD, 25 MGD, 30 MGD, 50 MGD and 100 MGD. 
The data analysis shows that 58% of the manufacturers, 70% of the 
nonutilities and 100% of the utilities built in the last 10 years would 
be regulated if the threshold was 2 MGD as proposed in the new facility 
rule. At the 2 MGD threshold 99.7% of the total flow would be covered. 
At a threshold of 15 MGD, 32% of the manufacturers, 29% of the 
nonutilities and 50% of the utilities would be covered, as would 97.3% 
of the total flow. The total flow covered remains relatively high, 
because the large flows from a small number of utility facilities 
dominate the total flow. At a threshold of 25 MGD, 18% of the 
manufacturers, 17% of the nonutilities and 50% of the utilities built 
in the last 10 years would be regulated, covering 94.9% of the total 
flow. By industry category, 71.4% of the flows from manufacturers, 
74.3% of the flows from nonutilities, and 99.5% of the flows from 
utilities would be regulated. See ``Percentages of In-scope Facilities 
Meeting Various Design Intake Flow Thresholds'' (see #2-003 in the 
Docket).
    The Agency also is considering State of Maryland regulations for 
cooling water intake structures (see COMAR 26.08.03, #2-004 in the 
Docket). These regulations exclude cooling water intake structures 
withdrawing less than 10 MGD if the volume of water is less than 20 
percent of the design stream flow for nontidal waters or less than 20 
percent of the annual average net flow past the intake which is 
available for dilution for tidal waters. EPA intends to consider this 
new information, as well as the information discussed and included in 
the record at proposal and any other relevant sources of information, 
to establish a minimum flow threshold in final regulations.

B. Industry Profile for Utility and Nonutility Electricity Generators

    EPA intends to consider basing its estimate of new electricity-
generating facilities for the final rule, in part, on a revised 
Department of Energy (DOE) forecast for growth in demand for 
electricity over the next twenty years. (See Annual Energy Outlook 
2001, DOE, Energy Information Agency DOE/EIA #6383 (2001), #2-005 in 
the Docket.) At the time of proposal, DOE projected a 1.3% annual 
increase in growth in demand for electricity over the next twenty 
years. Now, due in part to a revision in the methodology used by the 
Department of Commerce to calculate gross domestic product, DOE 
projects a 1.8% rate of increase in growth in demand for electricity 
over the next twenty years. DOE also projects that new electricity 
generating capacity will be needed sooner than previously forecast. Of 
the new generating capacity needed in the next 20 years, DOE

[[Page 28855]]

projects that 22 Gigawatts will be supplied by coal-fired steam 
electric generating facilities, and that 209 Gigawatts will be supplied 
by natural gas-fired, combined-cycle facilities.
1. Profile for Combined-Cycle Electric Generating Facilities
    DOE does not gather information on specific, planned new 
electricity-generating facilities and does not estimate the number of 
facilities that utility and nonutility power producers will build to 
meet increases in demand. Thus, EPA is considering, as at proposal, 
using the NEWGen database, a proprietary database owned by Resources 
Data International, Inc., to estimate the average size of new combined-
cycle facilities. (See Engineering and Economic Analyses for the 
Proposed Section 316(b) New Facility Rule, EPA-821-R-00-019 (#1-5046-PR 
in the Docket) for more information on the methodology EPA used to 
project new facilities and their compliance costs at proposal.) To 
estimate the total number of new combined-cycle facilities that will be 
built over the next twenty years, EPA is considering dividing DOE's new 
forecast of demand for new combined-cycle electricity generating 
capacity over the next twenty years by the average size of new, U.S. 
combined-cycle facilities in the February 2001 version of the NEWGen 
database. EPA also may use the February 2001 NEWGen database to 
estimate the percentage of new combined-cycle facilities that have 
characteristics that would make them subject to a section 316(b) rule 
for new facilities (e.g., do they plan to withdraw cooling water from 
waters of the U.S. in amounts greater than the regulatory threshold). 
For costing purposes, EPA is considering using the methodology used at 
proposal (described Chapters 5 and 6 and Appendices A and B of Economic 
and Engineering Analyses of the Proposed Section 316(b) New Facility 
Rule, EPA-821-R-00-019, August 2000) using the February 2001 NEWGen 
database to estimate the baseline of cooling water intake structure 
technologies that would be in place at new combined-cycle facilities 
without final regulations.
    Following proposal, EPA received comment from the Utility Water Act 
Group (UWAG), an association of individual electric utilities and three 
national trade associations of electric utilities (see W-00-03, 316(b) 
Comments 1.68). UWAG objected to the Agency's use of the NEWGen 
database to project the number of combined-cycle facilities that would 
be subject to the regulations and the baseline of intake structure 
technologies without making this proprietary database available to the 
public. On September 25, 2000, EPA added information to the rulemaking 
record (see #1-6001-AD, Identification of NEWGen Facilities for the 
Economic Analysis for the proposed section 316(b) New Facility Rule) so 
that the public could determine which facilities the Agency considered 
in developing its profile of new combined-cycle facilities and comment 
on additional facilities that the Agency should have considered. EPA is 
now reviewing information provided by the Edison Electric Institute 
(EEI) (see W-00-03, 316(b), Comments 1.69) regarding additional 
combined-cycle facilities that EEI asserts would be subject to the 
proposed regulations.
    At proposal, the NEWGen database contained information about 94 
combined-cycle facilities. EPA is now investigating the 323 combined-
cycle facilities documented in the February 2001 NEWGen database. 
Because the Agency received this information very recently, EPA has not 
completed its analysis of these combined-cycle facilities. Therefore, 
EPA cannot provide additional information at this time on:
     The total number of combined-cycle facilities the Agency 
projects may bear costs to comply with final new facility regulations
     The average size of new combined-cycle facilities
     The intake structure technologies likely to be in place at 
these facilities absent final regulations.

However, these data appear to indicate that, based on changes in the 
NEWGen database and DOE's new forecast for electricity from new 
combined-cycle facilities, more facilities than estimated at proposal 
would need to bear costs to comply with final regulations similar to 
the proposal. EPA has provided summary information on the 323 combined-
cycle facilities in the February 2001 NEWGen database, so that the 
interested public can determine which facilities the Agency is 
considering as it develops a profile of new combined-cycle facilities 
for final regulations (see #2-006 in the Docket). As at proposal, EPA 
solicits public comment on any additional facilities that the public 
believes will be subject to this rule. Specifically, the Agency 
requests that members of the public provide the Agency with detailed 
information on specific, new combined-cycle facilities that may be 
built after the end of calendar year 2001, and may be required to 
comply with final new facility regulations. EPA seeks information on 
facility size (Megawatt output), facility cost, source of cooling 
water, ownership, location, and any plans for where the cooling water 
intake structure will be located within the source water body, what the 
capacity of the cooling water intake structure will be, and what 
technologies would be used to reduce impingement and entrainment 
independent of final regulations.
    As a supplement to the approach described above, EPA intends to 
consider publicly-available information from the 1998 Annual Electric 
Generator Reports that utility and nonutility power generators submit 
to DOE (see data from Forms EIA-860A and EIA-860B, Annual Electric 
Generator Report-1998, Energy Information Administration (EIA), U.S. 
Department of Energy, #2-007 in the Docket), as well as data from the 
section 316(b) Questionnaire EPA sent to existing facilities. 
Specifically, EPA is evaluating data from the EIA-860 databases for 
each utility and nonutility power plant that EPA surveyed to estimate 
the average size of new combined-cycle facilities. To estimate average 
plant size, EPA also is evaluating EIA's Assumptions to the Annual 
Energy Outlook 2001, DOE/EIA #0554(2001) (see #2-008 in the Docket), 
which lists the average size of future combined-cycle and coal units as 
400 MW and states that most plants are likely to have more than one 
unit. EPA also is evaluating the section 316(b) survey responses to 
estimate the number of new facilities likely to be subject to 
regulation and the distribution of cooling systems and intake structure 
technologies likely to be in place at these facilities in the absence 
of new regulations. (See Newbert, Riley, and Mike Fisher, Abt 
Associates. Memo on: Analysis of Information Regarding Average Plant 
Size, In-scope Rate, and Distribution of Baseline Cooling System Types 
to Lynne Tudor, et.al., USEPA. April 24, 2001, #2-009 in the Docket.) 
These survey data indicate that, depending on whether one analyzes only 
the detailed questionnaire data or the detailed questionnaire in 
combination with the screener questionnaire data, between 44% and 59% 
of the coal plants constructed in the last 20 years would be covered by 
the proposed new facility regulations. Of the combined cycle plants 
surveyed, 15% would be covered by the proposed regulations. Of these 
facilities, 73% of the coal-fired plants and 100% of the combined-cycle 
plants built in the last 20 years have a recirculating cooling

[[Page 28856]]

system and would meet the proposed requirement to reduce intake 
capacity to a level commensurate with use of a closed-cycle 
recirculating cooling system. For coal-fired facilities built in the 
last 10 years, the percentage of facilities that would be covered that 
have closed-cycle recirculating cooling systems increases to 88%. 
Looking at utilities only, these data show that 54% of the coal-fired 
plants and 15% of the combined-cycle plants built in the last 20 years 
would be covered by the proposed regulations. Of the 33 utilities built 
in the last 20 years that would be covered (if they were new 
facilities), 66% of the coal-fired plants and 100% of the combined-
cycle plants have a closed-cycle recirculating cooling system. Seventy-
five percent of the utility coal-fired plants built in the last 10 
years that would be covered by the proposed regulations have a closed-
cycle recirculating cooling system.
2. Profile for Coal-Fired Electric Generating Facilities
    At proposal, the NEWGen database contained no information on new 
coal-fired steam electric generating facilities. For the years 2001-
2010, DOE's Annual Energy Outlook 2000 projected limited new coal-fired 
steam electric generating capacity. Thus, EPA did not project any new 
coal facilities for 2001-2010. For the years 2011-2020, EPA used DOE's 
projected demand for new capacity from coal-fired facilities and 
information from the following sources to estimate the number of new 
coal-fired power plants that had characteristics that would make them 
subject to the rule and to estimate what cooling water intake structure 
technology would be in place at these plants absent final regulation:
     Form EIA-767, Steam Electric Plant Operation and Design 
Report, Energy Information Administration, U.S. Department of Energy, 
1994, 1997. This database contains data on air and water quality from 
steam-electric power plants with generating capacities of 100 megawatts 
(MW) or greater. A small subset of the data is provided for steam 
electric power plants with generating capacity between 10 and 100 MW. 
An electronic copy of this database can be found in #2-010 in the 
Docket.
     Form EIA-860, Annual Electric Generator Report, Energy 
Information Administration, U.S. Department of Energy, 1994, 1997. 
Since EIA-767 contains only detailed information on utility facilities 
greater than 100 MW, this database was used to provide information on 
utility facilities less than 10 MW and to provide limited technical 
data on facilities between 10 and 100 MW. An electronic copy of this 
database can be found in #2-010 in the Docket.
     Power Statistics Database, Utility Data Institute, McGraw-
Hill Company, 1994. This data was combined with data from DOE's Stream 
Electric Plant Operation and Design Report to provide more specific 
details on cooling water intake structure, cooling water system, and 
water body characteristics.
    For the final rule, EPA is considering using a similar methodology 
to project the average size of new coal-fired facilities, the number 
that would be subject to the rule, and the baseline of intake structure 
technology that would be in place absent final regulations, but would 
supplement the DOE data described above with data from the section 
316(b) survey of cooling water use by existing facilities. To support 
such an analysis, EPA is developing profiles as shown in the table 
``Surveyed Coal Plants, By Age of Oldest Unit and In-Scope Status'' in 
#2-009 in the Docket. The Agency is also examining 17 coal-fired steam 
electric generating facilities in the February 2001 NEWGen database. 
EPA is actively seeking information from vendors and other sources of 
engineering information (see #2-011A-B in the Docket).

2-011A  Couch, Gordon. OECD Coal-Fired Power Generation--Trends in 
the 1990s, IEA Coal Research The Clean Coal Centre, 1997.
2-011B  Lammers, Thomas F. Steam Plant Operation, 7th Edition, 
McGraw-Hill, New York, New York, 1988.

C. Industry Profile for Manufacturers

    Following proposal, EPA received comment from the Department of 
Energy, the International Association of Drilling Contractors, the 
Offshore Oil Operators Committee, the American Petroleum Institute, and 
from individual companies expressing concern that the proposed 
regulations could adversely impact offshore and coastal oil and gas 
drilling operations that use cooling water. Among other concerns, these 
commenters stated that:
     Offshore and coastal oil and gas drilling facilities have 
much more limited technology options for addressing any adverse 
environmental impact of cooling water intake than land-based 
facilities;
     Under current regulations (40 CFR 435.11), existing mobile 
oil and gas extraction facilities are considered new sources when they 
operate on new development wells and, could be required to perform 
costly retrofits in order to comply with the 0.5 ft/s velocity standard 
if they become subject to the proposed requirements for cooling water 
intake structures at new facilities; and
     Higher cooling water intake velocities are necessary in 
marine waters to control biofouling of cooling water intake structures.
    At proposal, EPA had not considered or projected impacts on this 
industrial category. EPA seeks additional information on cooling water 
use by offshore and coastal oil and gas extraction facilities (e.g., 
drill ships, semi-submersibles, jack-ups, tension-leg platforms, spars, 
etc.). EPA requested additional information from the commenters (see 
#2-012A-B in the Docket). The Agency has also sought information from 
the Department of Interior's Minerals Management Service and from the 
U.S. Coast Guard. This new information suggests that mobile offshore 
and coastal drilling units use volumes of cooling water that could make 
them subject to the proposed regulations. However, little information 
is available about impingement and entrainment associated with this use 
of cooling water or the costs or achievability of measures to reduce 
any adverse environmental impact. EPA requests that the public provide 
peer-reviewed data (e.g., journal articles), operator/drilling 
contractor field data, and/or design schematics for mobile offshore 
drilling units to support or dispute assertions made by these 
commenters. Specifically, EPA would like additional reference data for 
the following areas:
     Cooling water intake structure capacities (e.g., volumes 
of water used per unit of time) and velocities (specifically whether 
measured on a through-screen or approach velocity basis) for various 
types of offshore and coastal oil and gas extraction facilities;
     Velocity requirements and other preventative measures 
(e.g., type and amount of chemical treatment, backlashing) for 
inhibiting growth of marine organisms;
     Potential issues (e.g., hull design implications, load 
paths, fatigue, risks to divers) related to either: (1) retrofitting 
sea chests and other cooling water intake structures for existing 
offshore and coastal oil and gas extraction facilities; or (2) 
outfitting newly-built offshore and coastal oil and gas extraction 
facilities with cooling water intake structures consistent with the 
proposed requirements for new facilities;
     Estimated costs to retrofit existing facilities or to 
outfit new facilities as described in the preceding bullet, with as 
much detailed information as possible regarding the basis for the 
estimates;

[[Page 28857]]

     Potential scheduling impacts on new or existing mobile 
offshore and coastal oil and gas extraction facilities due to section 
316(b) requirements for new facilities; and
     What issues or costs, if any, would make technologies for 
zero use of cooling water unavailable or economically impracticable on 
offshore and coastal oil and gas extraction facilities.
     Any impingement or entrainment data collected at coastal 
or offshore oil and gas extraction facilities.
    EPA is considering not including within the scope of this Phase I 
rule offshore and coastal oil and gas operations. Instead of addressing 
oil and gas operations as part of this rulemaking, EPA is considering 
addressing oil and gas operations as part of either the Phase II or 
Phase III rulemaking. Alternatively, if EPA addresses offshore and 
coastal oil and gas facilities in this Phase I rule, EPA is considering 
a higher regulatory threshold for these facilities (e.g., 25 or 50 
MGD).

2-012A  Johnston, Carey A. USEPA. Memo to File RE: Notes from April 
4, 2001 Meeting with US Coast Guard. April 23, 2001.
2-012B  Johnston, Carey A. USEPA. Memo to File RE: Summary of Email 
Correspondence with MMS on MODU CWIS. April 2001.

D. New Data and Refinements to the New Facility Framework Based on 
Waterbody Type

1. Tidal Rivers and Estuaries
    EPA received many comments about its proposal to have the most 
stringent technology requirements apply in all parts of estuaries and 
tidal rivers (see proposed 125.84(d), 65 FR 49118). Some commenters 
assert that adverse environmental impact can be minimized in some, if 
not all, parts of tidal rivers and estuaries with less protective 
technologies than EPA proposed. Some of these commenters observe that 
many of the aquatic organisms that inhabit tidal rivers and estuaries 
have reproductive strategies that rely on open-water dispersal of a 
very large number of eggs and larvae and that, even in the absence of 
impacts from a cooling water intake structure, most of the early life 
stages of these organisms do not survive to a reproductive age. 
Further, these commenters assert that increased survival of early life 
stages of these organisms can lead to increased competition among 
later-stage juvenile and adult organisms and actually reduce, not 
increase, populations of these organisms (see also the discussion of 
options for defining adverse environmental impact later in this 
notice). In response to comments, EPA further examined this issue and 
requests comment on the following documents found in #2-013A-O in the 
Docket. These documents include information on larval densities in 
selected estuaries and tidal rivers, impingement and entrainment rates 
for facilities located in these areas, conditional mortality rates of 
organisms in selected estuary and tidal rivers (requires calculation of 
larval densities), and discussions of the life history and reproductive 
strategies of marine and estuarine organisms that are relevant to EPA's 
consideration of whether these locations may be sensitive to 
impingement and entrainment impacts associated with cooling water 
intake structures. In the proposed rule EPA asserted that estuaries 
deserve the most stringent protection because of the abundance and 
diversity of aquatic life they harbor. Estuaries are also an important 
habitat for the vast majority of commercial and recreational important 
species of fin fish. Further, both EPA and commenters noted that the 
reproductive strategies of many estuarine species include pelagic or 
planktonic larvae. EPA invites comment on the documents which may 
support a judgment that the reproductive strategies of tidal river and 
estuarine species, together with other physical and biological 
characteristics of those waters, make these ecosystem waters 
particularly susceptible to cooling water intake structures. In 
addition to these documents, EPA notes that some of the new data 
discussed below (at Section E) regarding the assessment of adverse 
environmental impact, as well as information below regarding the 
susceptibility of non-tidal freshwater rivers and streams to cooling 
water intake structure impacts (at Section D.5.), also may be relevant 
in determining whether tidal rivers and estuaries are more sensitive to 
cooling water intake structures than some parts of other waterbodies.

2-013A  Richkus, W., Versar, Inc. Memo to EPA RE: Vulnerability of 
Biota of Freshwater (Rivers, Lakes, Reservoirs) versus Marine (Tidal 
River, Estuary, Ocean) Habitats to Entrainment and Impingement 
Impacts. April 2, 2001.
2-013B  Winemiller, K.O., and K.A. Rose. Patterns of life-history. 
Diversification in North American Fishes: Implications for 
Population Regulation. Canadian Journal of Fisheries and Aquatic 
Sciences 49: 2196-2218. 1992.
2-013C  PSE&G. Renewal Application for Salem Generating Station 
Permit No. NJ00005622. Appendix F, Attachments 1 & 2. Baywide and In 
Plant Sampling Programs and Sampling Methods; and Model 
Methodologies and Common Input Parameters. March 1999.
2-013D  PSE&G. Renewal Application for Salem Generating Station 
Permit No. NJ00005622. Appendix L, Data Sets. March 1999.
2-013E  New York Department of Environmental Conservation. Draft 
Environmental Impact Statement for State Pollutant Discharge 
Elimination System for Bowline Point, Indian Point 2 & 3, and 
Roseton Steam Electric Generating Stations. December 1999.
2-013F  Kurkel Patricia, NOAA. Letter to Deborah Hammond, EPA Region 
II RE: Review of Draft Permit (Salem Nuclear Generating Station). 
February 28, 2001.
2-013G  ENSR and Marine Research Inc. for Entergy Nuclear Generation 
Company. Study of Winter Flounder Transport in Coastal Cape Cod Bay 
and Entrainment at Pilgrim Nuclear Power Station. 2000.
2-013H  Boreman, J. and C.P. Goodyear. Estimates of Entrainment 
Mortality for Stripped Bass and Other Fish Species Inhabiting the 
Hudson River Estuary. American Fisheries Monograph 4: 152-160. 1988.
2-013I  McHugh, J.L. and J.J.C. Ginter. Fisheries. MESA New York 
Bight Atlas Monograph. January 16, 1978.
2-013J  Dixon, D.A., EPRI. Catalog of Assessment Methods for 
Evaluating the Effect of Power Plant Operations on Aquatic 
Communities. 1999.
2-013K  Clark, J. and W. Brownell. Electric Power Plants in the 
Coastal Zone: Environmental Issues. American Littoral Society 
Special Publication No. 7. 1973.
2-013L  Cacela, Dave, Stratus Consulting Inc. Memo to JT Morgan, EPA 
RE: Planned Analysis of Ambient Larval Densities and I&E. April 20, 
2001.
2-013M  Patrick, Ruth, Academy of Sciences. Testimony at Public 
Hearing on PSE&G Nuclear Generating Station Draft NPDES Permit. 
Pennsville, NJ. January 23, 2001.
2-013N  Bigelow, H.B. and W.C. Schroeder. Fishes of the Gulf of 
Maine. Fishery Bulletin 74 of the US Fish and Wildlife Service. 
Volume 53. 1953.
2-013O  Stratus Consulting, Inc. Memo to Blaine Snyder, Tetra Tech, 
Inc. RE: Estimation of Entrainment Using Icthyoplankton Samples.

EPA requests comment on the above documents.
2. Littoral Zone
    EPA received many comments on EPA's proposed definition of 
``littoral zone'' and its use of this concept to divide oceans, 
freshwater streams and rivers, and freshwater lakes and reservoirs, 
into areas where different suites of technologies are judged to be best 
technology available for minimizing adverse environmental impact. Many 
of these comments assert that EPA's proposed definition does not give a 
rationale for delineating water bodies into parts that are more or less 
sensitive to impacts of cooling water

[[Page 28858]]

intake structures. EPA requests comment on the following data and 
possible revisions to its approach for delineating more and less 
sensitive parts of waterbodies.
    First, EPA is considering changing the term ``littoral zone,'' 
which has a relatively precise definition in limnology (the study of 
lakes) to another term such as ``area of potential high impact'' or 
``productivity zone.'' This measure would avoid confusion with the 
long-standing use of ``littoral zone.'' On the other hand, EPA might 
not use a general term for areas with greater potential for adverse 
impacts and might define these areas on a waterbody-specific basis.
    For example, the Agency might continue to define a sensitive area 
in oceans, as it did at proposal: ``the photic zone of the neritic 
region. The photic zone is that part of the water that receives 
sufficient sunlight for plants to photosynthesize. The neritic region 
is the shallow water or nearshore zone over the continental shelf.''
3. Revised definition of estuary and ocean
    A number of commenters objected to EPA's proposal to define 
estuaries based, in part, on salinity concentrations (see ``estuary'' 
at proposed 40 CFR 125.83). In response to these comments, EPA requests 
comment on new data it has gathered (as described and compiled in #2-
015A-G in the Docket) which provides methods for delineating estuaries. 
EPA is considering revising its definition of estuary to incorporate 
elements of the information described in these documents and requests 
comment on use of these data to revise the definition of estuary. EPA 
also requests comment on a revised definition of estuary based largely 
on the definition of estuary at proposed 40 CFR 125.83 that would read 
as follows: ``estuary means all or part of the mouth of a river or 
stream or other body of water having an unimpaired natural connection 
with open oceans and within which the seawater is measurably diluted 
with fresh water derived from land drainage. The salinity of an estuary 
exceeds 0.5 parts per thousand (by mass).''
    Finally, EPA is considering and requests comment on a revised 
definition of oceans at proposed 40 CFR 125.83 to read as follows: 
``ocean means marine waters seaward of the mean low tide mark or 
seaward of the waters defined as estuary waters.''

2-015A  Dunham, Ray, California State Water Control Board. Memo to 
USEPA Office of Water, Office of Science and Technology RE: Methods 
for Delineating Estuary Boundaries. April 2000.
2-015B  Shalowitz, A.L. and Michael W. Reed. Shore and Sea 
Boundaries: Internal Waters. Volume 3, Part 2, Chapter 6, page 222. 
2000. (Available at: http://chartmaker.ncd.noaa.gov:80/hsd/shalowitz/part_two.pdf)
2-015C  Shalowitz, A.L. and Michael W. Reed. Shore and Sea 
Boundaries: The Estuarine Ecosystem: Ecology of the Intertidal and 
Subtidal Area. Volume 2, Part 3, Chapter 1, pp. 259-293. 2000. 
(Available at: http://ww.csc.noaa.gov:80/otter/htmls/ecosys/ecology/estuary.htm)
2-015D  National Oceanographic and Atmospheric Administration. 
Coastal Change Analysis Program (C-CAP): Guidance for Regional 
Implementation. 2001. (Available at: http://www.csc.noaa.gov:80/products/sf/html/proto.htm)
2-015E  National Oceanographic and Atmospheric Administration. 
Coastal Change Analysis Program (C-CAP): Guidance for Regional 
Implementation. Appendix 3. Description of Cowardin et al. Systems 
and Classes. 1979. (Available at: http://www.csc.noaa.gov:80/products/sf/html/proto.htm#app3)
2-015F  USEPA. Salinity. (Available at: http://www.epa.gov/owow/estuaries/monitor/chptr14.htm)
2-015G  National Oceanographic and Atmospheric Administration. The 
Estuarine Ecosystem-Ecology of Tidal and Subtidal Areas. (Available 
at: http://www.csc.noaa.gov:80/otter/htmls/ecosys/ecology/estuary.htm)
4. Great Lakes
    At 65 FR 49086, the Agency noted that the Great Lakes, like 
estuaries, have areas of high productivity and sensitive critical 
habitat that may need more stringent requirements than those proposed 
for lakes and reservoirs. One commenter asserted that there is no 
biological basis for treating the Great Lakes separately and further 
asserted that the communities in these lakes are probably less 
sensitive than those in other lakes. Since proposal, EPA has gathered 
additional information on the susceptibility of the Great Lakes system 
to impact from cooling water intake structures and may provide 
protections for the Great Lakes beyond those proposed for lakes and 
reservoirs. In #2-016A-C in the Docket, EPA has made available for 
comment information that supports the idea that the Great Lakes are a 
unique system that may deserve additional protection from the impact of 
cooling water intake structures. The Agency requests comment on this 
information and the position that the Great Lakes should be protected 
to a greater extent than other lakes and reservoirs.

2-016A  Herdendorf, C.E. Great Lakes estuaries. Estuaries, 13(4): 
493-503. 1990.
2-016B  EPA. The Conservation of Biological Diversity in the Great 
Lakes Ecosystem: Issues and Opportunities. Prepared by The Nature 
Conservancy, EPA Great Lakes Program, Chicago, IL. 1999. (Available 
at http://www.epa.gov/glnpo/ecopage/issues.html)
2-016C  EPA. Water Quality Guidance for the Great Lakes System: 
Supplementary Information Document (SID). EPA-820-B-95-001. 1995.
5. Freshwater Rivers and Streams
    EPA is considering data that may support the proposition that the 
aquatic species predominant in freshwater rivers and streams have 
reproductive and life history strategies that generally make them less 
susceptible to the impact of cooling water intake structures. These 
data may demonstrate that the species in these systems are primarily 
demersal (bottom) and adhesive egg-laying or nest-building organisms. 
These species do not exhibit the planktonic (free-floating) egg- and 
larval-dispersal behaviors that may expose early life stages to impact 
from cooling water intake structures. One of these documents also 
contains assertions that freshwater fish populations are not harvested 
as extensively as marine fish, and that management practices for marine 
fish are slow to respond to over-exploitation. EPA invites comment on 
the following documents:

2-017A  Wright, Jim, TVA. Memo to File RE: Ecological Reasons Why 
Freshwater River and Reservoir Systems Do Not Normally Experience 
Substantive Impact as a Result of Impingement and Entrainment.
2-017B  Dixon, Doug, EPRI. Memo to File RE: Ecological Reasons Why 
Freshwater River and Reservoir Systems Do Not Normally Experience 
Measurable Environmental Impact as a Result of Impingement and 
Entrainment.
2-017C  Karr, James R., et al., EPA. Habitat Preservation for 
Midwest Stream Fishes: Principles and Guidelines. 1983.
2-017D  Lohner, Timothy W., American Electric Power. Letter to Tom 
Wall, EPA et al. RE: Final Report-Modeling of Possible 316(b) 
Effects on Selected Ohio River Fishes. April 20, 2001.
2-013A  Richkus, W., Versar, Inc. Memo to EPA RE: Vulnerability of 
Biota of Freshwater (Rivers, Lakes, Reservoirs) versus Marine (Tidal 
River, Estuary, Ocean) Habitats to Entrainment and Impingement 
Impacts. April 2, 2001.
2-013B  Winemiller, K.O., and K.A. Rose. Patterns of life-history. 
Diversification in North American Fishes: Implications for 
Population Regulation. Canadian Journal of Fisheries and Aquatic 
Sciences 49: 2196-2218. 1992.

    EPA is considering whether these data would support a modification 
to its proposed regulatory requirements for

[[Page 28859]]

freshwater streams and rivers. Such a modification would: (1) Eliminate 
the proposed requirement for facilities to reduce intake capacity to a 
level commensurate with use of a closed-cycle cooling system for 
intakes located inside or within 50 meters of the littoral zone; and 
(2) require implementation of additional design and construction 
technologies that minimize impingement and entrainment of fish, eggs, 
and larvae and maximize survival of impinged adult and juvenile fish 
(such as extremely fine-mesh screens, or fish return systems that 
significantly increase the survival of impinged organisms) in all parts 
of freshwater rivers and streams rather than only within the littoral 
zone. The approach would retain the proposed requirements for a design 
intake flow of 5% of the source water mean annual flow and 
25% of the source water 7Q10 low flow, and a design intake 
velocity of 0.5 ft/s in all parts of freshwater rivers and 
streams. This approach would potentially have lower costs than the 
proposed requirements. EPA invites comment on this potential 
modification.
6. Exception for Areas Not Designated To Support an Aquatic Life Use
    Several commenters asserted that the proposed regulations would 
require use of protective and costly technologies in areas that are not 
particularly susceptible to impact from cooling water intake structures 
because they do not support aquatic life. EPA is evaluating these 
comments and, in response, may identify other less costly technologies 
as best technology available for minimizing adverse environmental 
impact in waterbodies a State or Tribe designates as having no use 
supporting the propagation or maintenance of aquatic life in accordance 
with 40 CFR part 131 (e.g., the State or Tribe has conducted a Use 
Attainability Analysis and EPA has approved the revised use). EPA 
recognizes that this would be a very small set of water bodies and that 
including such a provision would have little practical effect on the 
regulatory requirements for most new facilities. EPA requests comment 
on other ways of identifying or defining waters with low susceptibility 
to impact from cooling water intake structures because of limited 
potential for aquatic life support even in the absence of the facility.

E. Additional Data and Information Concerning the Impingement and 
Entrainment Approach and the Population Approach and Biological 
Assessment Approach to Defining Adverse Environmental Impact

1. Additional Impingement, Entrainment, and Mortality Data
    Although EPA's proposed regulatory text did not include a 
definition of the term ``adverse environmental impact'' in the preamble 
to these regulations, the Agency invited comment on a number of 
alternatives for either defining adverse environmental impact or 
determining a threshold for the level of environmental impact deemed to 
be adverse. 65 FR 49074-49075.
    EPA received numerous comments on its proposed rule asserting that 
the proper endpoint for defining adverse environmental impact (AEI) is 
at the population level, that some of EPA's proposed alternative 
definitions of adverse environmental impact would essentially protect 
``one fish,'' and that EPA's alternative for defining adverse 
environmental impact as recurring and nontrivial impingement and 
entrainment was vague or would lead to excessive and costly efforts to 
protect a very few fish that would not result in ecologically relevant 
benefits. While EPA's record at proposal demonstrates that cooling 
water intake structures do not kill, impinge, or entrain just ``one 
fish,'' or even a few aquatic organisms, today's Notice invites comment 
on additional information that provides further examples of cooling 
water intake structures that kill or injure large numbers of aquatic 
organisms. For example, in #2-013 in the Docket, EPA provides 
information on aquatic organism conditional mortality rates for the 
Hudson and Delaware rivers which demonstrate the degree of mortality 
due to cooling water intake structures. EPA is considering this 
information, as well as information (at Section E.2 below) on 
impingement and entrainment survival and impact, as it deliberates on 
options for the final rule and how it should define adverse 
environmental impact. If EPA decides to include a definition of AEI in 
the final rule, it is considering whether to define adverse 
environmental impact using a population endpoint or an alternative that 
relies upon counts of impinged and entrained organisms.
    Further, EPA is considering documents that discuss potential 
consequences associated with the loss of large numbers of aquatic 
organisms. These include impacts on the stocks of various species, 
including any loss of compensatory reserve due to the deaths of these 
organisms, and the overall health of ecosystems. EPA invites comments 
on the following documents:

2-018A  Boreman, J. Surplus Production, Compensation, and Impact 
Assessments of Power Plants. Environmental Science & Policy. (31) 
445-449. 2000.
2-018B  Richkus, W., Versar Inc. Memo to EPA RE: Primer on 
Entrainment and Impingement Conditional Mortality Rate. March 30, 
2001.
2-018C  EPA. Memo to File RE: Impingement Values for Plants with 
Flows Less Than 100 MGD. August 2000.
2-018D  Loveridge, T., Chief Industrial Permits Section, NYDEC. 
Transmittal of Impingement and Entrainment Study for Charles Point 
Resource Recovery Facility to A. Bromberg, Chief Water Quality 
Evaluation Section, NYDEC. January 14, 1987.
2-018E  Richkus, W.A. and Richard McLean. Historical Overview of Two 
Decades of Power Plant Fisheries Impact Assessment Activities in 
Chesapeake Bay. Environmental Science and Policy. (31) 283-293. 
2000.

EPA also invites commenters to submit for consideration additional 
studies that document either significant impacts or lack of significant 
impacts from cooling water intake structures. In addition, EPA invites 
comment on the following documents:

2-013C  PSE&G. Renewal Application for Salem Generating Station 
Permit No. NJ00005622. Appendix F, Attachments 1 & 2. Baywide and In 
Plant Sampling Programs and Sampling Methods; and Model 
Methodologies and Common Input Parameters. March 1999.
2-013E  New York Department of Environmental Conservation. Draft 
Environmental Impact Statement for State Pollutant Discharge 
Elimination System for Bowline Point, Indian Point 2 & 3, and 
Roseton Steam Electric Generating Stations. December 1999.
2. Assessment of Population Modeling Approach
    Some commenters assert that impact on individual organisms, large 
numbers of individual organisms, or subpopulations are not ecologically 
relevant and recommend that EPA define adverse environmental impact as 
follows: ``Adverse environment impact is a reduction in one or more 
representative indicator species that (1) creates an unacceptable risk 
to the populations's ability to sustain itself, to support reasonably 
anticipated commercial or recreational harvests, or to perform its 
normal ecological function, and (2) is attributable to the operation of 
the cooling water intake structure.'' Under this approach, EPA would 
define unacceptable risk using a variety of methods that fisheries 
scientists have developed for estimating

[[Page 28860]]

(1) the level of mortality that can be imposed on a fish population 
without threatening its capacity to provide ``maximum sustainable 
yield,'' as developed under the Magnuson-Stevens Fishery Conservation 
and Management Act, on a long-term basis, and (2) the optimum 
population size for maintaining maximum sustainable yield. (See W-00-
03, 316(b), Comments 1.68).
    In response to comments, EPA has included in the record for comment 
a memorandum providing a list of references that EPA intends to review 
to assess the merits of using a population modeling approach to define 
adverse environmental impact. EPA also intends to evaluate and seeks 
comment on how and whether it is possible to use such models, which 
have historically been used to perform single species assessments, to 
assess impacts on multiple species as is often necessary in evaluating 
impingement and entrainment by cooling water intake structures. EPA 
invites comment on the following documents found in #2-019A-B in the 
Docket.

2-019A  Strange, Liz, Stratus Consulting, Inc. Memo to File RE: 
Scientific Literature on Population Modeling. April 2001.
2-019B  ESSA. Review of Portions of Salem Permit--Final Report for 
New Jersey Department of Environmental Protection. June 2000.

    Further, EPA has included information addressing the issue of 
compensation and its application relative to the section 316(b) 
rulemaking. In particular, EPA is seeking comment on a memorandum 
titled, ``Compensation'' in #2-020C in the Docket. This document states 
that the use of compensation factors is typically limited to those 
cases where fishery managers have extensive data on a fish population 
and that specific, numerical compensation values generally are not used 
in the absence of a robust data sets with a minimum of 15-20 years of 
data suggested. Moreover, fish stocks for which these robust data sets 
exist are generally the highly exploited commercial and recreational 
stocks and it is unlikely the data exists for the non-harvested 
species. This memorandum also notes that in the absence of sufficient 
data, various proxies are typically used in order to side-step the need 
for quantitatively determining compensation. EPA invites comment on 
each of the following documents in #2-020A-D in the Docket:

2-020A  National Marine Fisheries Service. Our Living Oceans. Report 
on the Status of U.S. Living Marine Resources. NOAA Technical Memo 
#NMFS-F/SPO-41. 1999. (Available at: http://spo.nwr.noaa.gov/unit17.pdf)
2-020B  Christensen, S.W., W.V. Winkle, L. W. Barnthouse, and D.S. 
Vaughan. Science and Law: Confluence and Conflict on the Hudson 
River. Environmental Impact Assessment Review, V.2, N.1. 1981.
2-020C  Vaughan, Doug, NMFS. Memo to JT Morgan, EPA RE: Compensation 
and follow-up memo. April 19, 2001.
2-020D  EPA. Guidelines for Ecological Risk Assessment. Risk 
Assessment Forum, U.S. Environmental Protection Agency, Washington, 
DC. EPA/630/R-95/002F. 1998.

    EPA is also evaluating information submitted by the Utility Water 
Act Group (UWAG) and the Electric Power Research Institute (EPRI), both 
in their comments and in studies provided to the Agency after the 
comment period. (See UWAG original comments at W-00-03, 316(b), 
Comments 1.68; EPRI original comments at W-00-03, 316(b), Comments 
1.58, EPRI documents submitted after November 9, 2000 at W-00-03, 
316(b), Comments 2.11; EPRI meeting material, January 24, 2001(see #2-
021A in the Docket); and UWAG meeting material, January 25, 2001(see 
#2-021B in the Docket)). In summary, these comments and documents 
assert or are intended to support the assertion that entrainment of 
very large numbers of eggs, larvae, and early juvenile-stage fish does 
not necessarily meaningfully affect populations of the entrained 
species and that substantial percentages of the organisms of many 
species may survive entrainment. Further, these comments and documents 
assert or are intended to support the assertion that impingement 
survival is high for many species and that impingement often impacts 
low-value, forage species when they are naturally prone to seasonal 
die-off regardless of cooling water intake structures. One of these 
comments asserts that EPRI and some of the best fishery scientists in 
the world have never identified a site where definitive or conclusive 
aquatic population or community level impacts have occurred from 
operation of cooling water intake structures. EPA invites comment on 
each of these documents.
3. Biological Assessment Approach
    Biological assessments and criteria are recognized as important 
methods for gathering relevant ecological data for addressing 
attainment of biological integrity and designated aquatic life uses 
(see #1-5038-PR, #2-022A, #2-022C, and #2-022F in the Docket). EPA 
invites comment on the following discussion and documents that identify 
potential constraints on using these methods to determine adverse 
environmental impact from the operation of cooling water intake 
structures.
    First, biological assessment and criteria methods are still being 
developed for large rivers and the Great Lakes, two large water body 
types where many cooling water intake structure are located. Secondly, 
although biological assessment and criteria methods have been published 
by EPA for small streams and wadeable rivers (see #2-022A and #2-022D 
in the Docket), lakes and reservoirs (see #2-022C in the Docket), and 
estuaries and coastal marine waters (see #1-5044-PR in the Docket), 
many States have yet to implement these methods in the largest of these 
water bodies (reservoirs, lakes, estuaries and coastal water (see #2-
022B and #2-022E in the Docket).) where cooling water intake structure 
would be located. Most work to date by the States (see #2-022B, #2-022D 
and #2-022E in the Docket) to use these methods has been applied to 
small streams and wadeable rivers where few cooling water intake 
structures are located.
    In addition, although bioassessments and criteria are a valuable 
tool for determining the biological condition of a water body, in 
complex situations where multiple stressors are present (point source 
discharges, non-point source discharges, harvesting, runoff, 
hydromodifications, habitat loss, cooling water intake structures, 
etc.), it is not well understood at this time how to identify all the 
different stressors impacting the biology in a water body and how best 
to apportion the relative contribution to the biological impairment of 
the stressors from each source within a watershed (see #2-022E in the 
Docket). Although ecological risk assessment methods have been 
successfully used to identify and attribute causation of biological 
impairment in some water bodies (see #2-022F in the Docket), the 
application of these approaches to cooling water intake structures has 
not been tested.
    EPRI has also developed a document that examines the suitability of 
multimetric bioassessment for regulating cooling water intake 
structures under Section 316(b) of the CWA (see #2-022E in the Docket). 
In its conclusion, EPRI states that biocriteria are well suited for 
assessing community-level effects but are not designed as indices to 
measure population-level effects without additional analyses; that 
assumptions about the structure and function of ecosystems embedded in 
the biocriteria approach appear to conflict with current understanding 
of ecosystems as dynamic, nonequilibrium systems

[[Page 28861]]

structured on multiple time and space scales; and that issues such as 
significant uncertainty in reference conditions due to unaddressed 
sources of natural variability among reference sites may be of 
particular importance for large, open systems such as estuaries sand 
coastal marine wasters. EPA invites comment on this document and on the 
documents listed below, which may be found in #2-022A-F in the Docket:

2-022A  EPA. Biological Criteria: Technical Guidance for Streams and 
Small Rivers. USEPA, Office of Science and Technology, Washington, 
DC. EPA 822-B-96-001. 1996.
2-022B  EPA. Summary of State Biological Assessment Programs for 
Rivers and Streams. USEPA, Office of Policy Planning and Evaluation, 
Washington, DC. EPA 230-R-96-007. 1996.
2-022C  EPA. Lake and Reservoir Bioassessment and Biocriteria. 
Technical guidance document. Office of Water, USEPA, Washington, DC. 
EPA 841-B-98-007. 1998.
2-022D  EPA. Rapid Bioassessment Protocols for Use in Wadeable 
Streams and Rivers. Second Edition. Office of Water, USEPA, 
Washington, DC. EPA 841-B-99-002. 1999.
2-022E  Jacobson, P. Evaluation of Biocriteria as a Concept, 
Approach, and Tool for Assessing Impacts of Impingement and 
Entrainment Under Sec. 316(b) of the Clean Water Act, EPRI, Palo 
Alto, CA. TR-114007. 2000.
2-022F  EPA. Stressor Identification Guidance Document. Office of 
Water, USEPA, Washington, DC. EPA-822-B-00-025. 2000.

EPA also invites comment on the following documents made available 
at proposal on August 10, 2000:

1-5038-PR  EPA. Estuarine and Coastal Marine Waters : Bioassessment 
and Biocriteria Technical Guidance. USEPA, Office of Water 
Regulations and Standards, Washington, DC. EPA 822-B-00-024. 2000.
1-5044-PR  EPA. Biological Criteria: National Program Guidance for 
Surface Waters. USEPA, Office of Water Regulations and Standards, 
Washington, DC. EPA 440-5-90-004. 1990.

4. Additional Information Supporting That Impingement and Entrainment 
May Be a Non-Trivial Stress on a Waterbody
    In addition to reviewing the merits of a population approach to 
assessing adverse environmental impact, EPA is also considering 
additional information suggesting that impingement and entrainment, in 
combination with other factors, may be a non-trivial stress on a 
waterbody. EPA recognizes that cooling water intake structures are not 
the only source of human-induced stress on aquatic communities. These 
stresses include, but are not limited to, nutrient loadings, toxics 
loadings, low dissolved oxygen content of waters, sediment loadings, 
stormwater runoff, and habitat loss. While recognizing that a nexus 
between a particular stressor and adverse environmental impact may be 
difficult to establish with certainty, the Agency has identified 
methods for evaluating more generally the stresses on aquatic 
communities from human-induced perturbations other than fishing. Of 
particular importance is the recognition that stressors that cause or 
contribute to the loss of aquatic organisms and habitat may 
incrementally impact the viability of aquatic resources. EPA is 
examining whether waters meet their designated uses, whether fisheries 
are in stress, and whether waters would have higher water quality or 
better support their designated uses if EPA established additional 
requirements for new cooling water intake structures. EPA is 
considering use of this type of information as one approach for 
evaluating adverse environmental impact and requests comment on this 
approach.
    EPA has prepared a brief memorandum (Dabolt, Thomas, EPA. Memo to 
File RE: 316(b) Analysis--Relationship of Location to Cooling Water 
Intake Structures to Impaired Waters. April 18, 2001.) documenting that 
about 35% of existing cooling water intake structures at facilities 
that completed EPA's detailed section 316(b) questionnaire are located 
within two miles of locations within waterbodies identified as impaired 
and listed by a State as needing development of a Total Maximum Daily 
Load to restore the waterbody to its designated use. EPA recognizes, 
however, that these data do not establish that cooling water intake 
structures are the cause of adverse environmental impact in any 
particular case and that there may be other reasons for the presence of 
impaired waters near cooling water intake structures, such as the 
frequent location of facilities with cooling water intake structures 
near other potential sources of impairment (e.g., industrial point 
sources, urban stormwater). EPA requests comment on the relevance of 
these data to adverse environmental impact determinations for cooling 
water intake structures (see #2-023 in the Docket).
    EPA has also summarized information from a number of sources 
indicating overutilization of about 46% of the fishery stocks of known 
status tracked by and under NOAA purview (73 out of 158 stock groups), 
and which rely on tidal rivers, estuaries, and oceans for spawning, 
nursery, or adult habitat. An additional 45 stocks under NOAA purview 
are of unknown status (about 22% of the fishery). In addition, NOAA 
documents in a number of their Fishery Management Plans that cooling 
water intake structures, and in particular once-through cooling water 
systems that withdraw large volumes of water, cause adverse 
environmental impacts due to significant impingement of juveniles and 
entrainment of eggs and larvae. EPA recognizes that stress due to 
overutilization may not be directly relevant to adverse environmental 
impact, but believes that it may be relevant to assessing cumulative 
impacts of multiple stressors, including cooling water intake 
structures. EPA requests comment on the potential use of these data for 
this purpose.
    EPA invites comment on the following documents and information the 
Agency is considering as it evaluates possible definitions of adverse 
environmental impact and concerns associated with assessing multiple 
stressors and their impacts on aquatic communities (see #2-024A-O in 
Docket).

2-024A  Angermeier, P.L. and J.E. Williams. Conservation of 
Imperiled Species and Reauthorization of the Endangered Species Act 
of 1973. Fisheries. 19(1): 26-29. 1994.
2-024B  Gulf of Mexico SPR Management Strategy Committee. An 
Evaluation of the Use of SPR Levels as the Basis for Overfishing 
Definitions in Gulf of Mexico Finfish Fishery Management Plans: 
Final Report, Gulf of Mexico Fishery Management Council, Tampa, FL. 
1996.
2-024C  Branstetter, S. Bycatch and its Reduction in the Gulf of 
Mexico and South Atlantic Shrimp Fisheries. Gulf & South Atlantic 
Fisheries Development Foundation, Inc., Tampa, FL. 1997.
2-024D  Crowder, L.B., and S.A. Murawski. Fisheries Bycatch: 
Implications for Management. Fisheries. 23(6): 8-17. 1998.
2-024E  Weeks, H. and S. Berkeley. Uncertainty and Precautionary 
Management of Marine Fisheries: Can the Old Methods Fit the New 
Mandates? Fisheries Management, Vol 25, No.12. 2000.
2-024F  Boreman, J. Methods for Comparing the Impacts of Pollution 
and Fishing on Fish Populations. Transactions of the American 
Fisheries Society. 126: 506-513. 1997.
2-024G  Schaaf, W.E. et al. Fish Population Responses to Chronic and 
Acute Pollution: The Influence of Life History Strategies. 
Estuaries. Vol. 10, No.3, page 267-275. September 1987.
2-024H  Schaaf, W.E. et al. A Simulation Model of How Life History 
Strategies Mediate Pollution Effects on Fish Populations. Estuaries. 
Vol. 16, No.4, page 697-702. December 1993.
2-024I  Vaughan, D. S., R. M. Yoshiyama, J. E. Breck, and D. L. 
DeAngelis. Modeling Approaches for Assessing the Effects of Stress 
on Fish Populations in Contaminant

[[Page 28862]]

Effects on Fisheries. John Wiley & Sons, New York. p. 259-278. 1984.
2-024J  National Marine Fisheries Service. Scientific Review of 
Definitions of Overfishing in US Fishery Management Plans. August 
1994.
2-024K  National Marine Fisheries Service. Scientific Review of 
Definitions of Overfishing in US Fishery Management Plans--
Supplemental Report. March 1996.
2-024L  Restrepo, Victor R., Pamela M. Mace and Fredric M. Serchuk. 
The Precautionary Approach: A New Paradigm or Business as Usual? Our 
Living Oceans. 1998.
2-024M  National Marine Fisheries Service. Atlantic Mackerel, Squid, 
and Butterfish Fishery Management Plan--Amendment 8. August 1998.
2-024N  National Marine Fisheries Service. The Coastal Pelagic 
Species Fishery Management Plan--Amendment 8. December 1998.
2-024O  National Marine Fisheries Service. New England Fishery 
Management Council. Essential Fish Habitat Amendment. October 1998.

In addition, EPA invites comment on the following documents:

2-020A  National Marine Fisheries Service. Our Living Oceans. Report 
on the Status of U.S. Living Marine Resources. NOAA Technical Memo 
#NMFS-F/SPO-41. 1999. (Available at: http://spo.nwr.noaa.gov/unit17.pdf)
2-018A  Boreman, J. Surplus Production, Compensation, and Impact 
Assessments of Power Plants. Environmental Science & Policy. (31) 
445-449. 2000.

    EPA has gathered new data on adverse environmental impact 
determinations made in connection with State and Federal NPDES Permit 
decisions. EPA invites comment on the following documents compiled in 
#2-025A-W in the Docket.

2-025A  State of California, California Regional Water Quality 
Control Board, Central Coast Region. Staff Report for Regular 
Meeting of October 27, 2000. Supplemental Sheet, Item Number 23, 
Subject: Diablo Canyon Nuclear Power Plant, Resolution of Thermal 
Discharge and Entrainment/Impingement Impacts. October 2000.
2-025B  California Regional Water Quality Control Board, Central 
Coast Region. Waste Discharge Requirements Order No. 00-041, NPDES 
No. CA00062554 for Duke Energy North America, Moss Landing Power 
Plant, Units 1, 2, 6, and 7 Monterey County. October 27, 2000.
2-025C  New Jersey Department of Environmental Protection and Energy 
Wastewater Facilities Regulation Program. In the Matter of NJDEP 
Public Hearing on Draft Permit No. NJ 0005652 for the Salem Nuclear 
Generating Station, Transcript Proceedings. Thursday, September 9, 
1993.
2-025D  New Jersey Department of Environmental Protection and Energy 
Wastewater Facilities Regulation Program, Bureau of Standard 
Permitting. Public Notice, Consideration of Section 316 Variance 
Request, Intent to Renew Existing New Jersey Pollutant Discharge 
Elimination System/Discharge to Surface Water (NJPDES/DSW) Permit 
NJ0005622, and Notice of Public Hearing. June 24, 1993.
2-025E  State of New Jersey Department of Environmental Protection, 
Division of Environmental Protection, Division of Water Quality. 
Fact Sheet for NPDES Permit Including Section 316(a) Determination 
and Section 316(b) Decision, Permit No. NJ0005622. July 1994.
2-025F  State of New Jersey Department of Environmental Protection, 
Division of Environmental Protection, Division of Water Quality. 
Response to Comments Document PSE&G Salem Generating Station, 
NJPDES/DSW Draft Permit NJ0005622. July 1994.
2-025G  State of New Jersey Department of Environmental Protection, 
Division of Environmental Protection, Division of Water Quality. 
PSE&G Salem Nuclear Generating Station NJPDES Permit #NJ0005622. 
1994.
2-025H  EPA Region IV. Record of Decision on Tampa Electric Company 
Big Bend Unit 4, NPDES Permit No. FL0037044. April 7, 1982.
2-025I  EPA Region IV. Finding of Fact for TVA John Sevier Station. 
October 23, 1978.
2-025J  EPA Region IV. 316 Determinations, John Sevier Steam Plant, 
NPDES No. TN0005436. April 15, 1986.
2-025K  EPA Region IV and Florida Department of Environmental 
Regulation. Joint Public Notice, No. 78FL0080. Notice of Proposed 
Modification of National Pollutant Discharge Elimination System 
Permit and Notice of Consideration for State Certification, Crystal 
River Power Plant Units 1, 2, and 3, NPDES No. FL0000159. January 8, 
1978.
2-025L  EPA Region IV. Public Hearing Statement, Florida Power 
Corporation Crystal River Units 1, 2, and 3. February 3, 1987.
2-025M  EPA Region IV. Biological Assessment, Florida Power 
Corporation Crystal River Power Plant, 316A & B Demonstration. Date 
Unknown.
2-025N  EPA Region IV. In the Matter of Florida Power Corporation 
Crystal River Power Plant Units 1, 2, and 3, Citrus County Florida, 
NPDES Permit No. FL0000159, Findings and Determinations Pursuant to 
33 U.S.C. Section 1326. September 1988.
2-025O  EPA Region IV and Florida Department of Environmental 
Regulation. Joint Public Notice, No. 88FL036, Notice of Proposed 
Reissuance of National Pollutant Discharge Elimination System 
Permit, Tentative Determination of Substantial Damage, Tentative 
Section 316 Findings and Determinations, Notice of Consideration for 
State Certification, and Notice of Public Hearing, Crystal River 
Power Plant Units 1, 2, and 3, NPDES No. FL0000159. May 19, 1988.
2-025P  EPA Region IV. Florida Power Corporation, Crystal River 
Power Plant Units 1, 2, and 3, NPDES No. FL0000159, Public Hearing. 
February 4, 1987.
2-025Q  EPA Region IV. Fact Sheet, Application for National 
Pollutant Discharge Eliminations System Permit to Discharge Treated 
Wastewater to U.S. Waters, Application No. FL0000159, Florida Power 
Corporation, Crystal River Power Plant Units 1, 2, and 3. September 
1, 1988.
2-025R  EPA Region IV and Florida Department of Environmental 
Regulation. Joint Public Notice, No. 86FL100, Notice of Proposed 
Reissuance of National Pollutant Discharge Elimination System 
Permit, Tentative Determination of Substantial Damage, Tentative 
Section 316 Findings and Determinations, Notice of Consideration for 
State Certification, Crystal River Power Plant Units 1, 2, and 3, 
NPDES No. FL0000159. December 18, 1986.
2-025S  Kaplan, Charles, EPA Region IV. Letter to Dr. Patsy Y. 
Baynard, Director Environmental and Licensing Affairs, Florida Power 
Corporation, RE: Crystal River Power Plant Units 1-3, NPDES No. 
FL0000159, 316(a &b) Demonstration Meeting--September 18, 1985 and 
Attachments. August 23, 1985
2-025T  White, John C., EPA Region IV. Letter to Honorable Lawton 
Chiles, June 8, 1978.
2-025U  Hart, Dennis. State of New Jersey Department of 
Environmental Protection, Division of Environmental Protection, 
Division of Water Quality. Letter to Richard L. Caspe, EPA Region II 
RE: PSE&G Salem Nuclear Generating Station, NJPDES #NJ0005622. 
January 31, 1994.
2-025V  Caspe, Richard L, EPA Region II. Letter to John Weigart, 
State of New Jersey Department of Environmental Protection, Division 
of Water Quality RE: Response to Dennis Hart Letter of January 31, 
1994. 1994
2-025W  Hicks, Delbert B., EPA Region IV. Letter to Charles Kaplan, 
EPA RE: Crystal River 316(b) Findings. Date Unknown.

In addition, EPA invites comment on the following documents:

2-013F  Kurkel Patricia, NOAA. Letter to Deborah Hammond, EPA Region 
RE: Review of Draft Permit (Salem Nuclear Generating Station) II. 
February 28, 2001
5. Other Options for Interpreting Adverse Environmental Impact
    In the proposed rule preamble, EPA discussed several other option 
for interpreting adverse environmental impact. One option would be to 
look to section 316(a) of the Clean Water Act for guidance in assessing 
adverse environmental impact from cooling water intake structures. 
Section 316(a) addresses requirements for thermal discharge and 
provides that effluent limitations associated with such discharge 
should generally not be more stringent than necessary to ``assure the 
protection and propagation of a balanced indigenous population of 
shellfish, fish, and wildlife in and on that body of water.'' The same 
language

[[Page 28863]]

is repeated in section 303(d) with reference to Total Maximum Daily 
Load listing requirements for waters impaired by thermal discharge. 
These statutory provisions show that Congress intended this standard to 
be used in evaluating the environmental impacts of thermal discharges. 
Some have suggested that since thermal discharges are usually paired 
with cooling water intake, it may be reasonable to interpret the Clean 
Water Act to apply this standard in evaluating adverse environmental 
impact from cooling water intake structures as well.
    Another option would be to define adverse environmental impact as a 
level of impingement and entrainment that is ``recurring and non 
trivial.'' 65 FR 49074. EPA is considering refining that idea by 
interpreting ``recurring and non trivial'' impacts as the degree of 
impingement and entrainment that would have resulted from the use of 
the traditional technologies in use at the time the Clean Water Act 
(including section 316(b)) was enacted in 1972. EPA believes that the 
traditional technology in use at that time would have been a once-
through cooling system with a simple bar rack screen to minimize 
entrainment of large debris items and a simple mesh screen to minimize 
entrainment of small debris items into the condenser. Under this 
approach, EPA would define the common performance of the traditional 
technologies as having an adverse environmental impact and then 
consider reasonable requirements to improve over that performance. EPA 
recognizes that the statutory phrase ``minimize adverse environmental 
impact'' could be interpreted in a way that focuses on the 
environmental impacts of cooling water intake structures to determine 
whether and to what extent these impacts are ``adverse,'' perhaps using 
a population approach, as suggested by some. However, EPA believes that 
the phrase ``best technology available to minimize adverse 
environmental impact'' could also reasonably be interpreted in a way 
that focuses on the technology, rather than the impact, in a manner 
analogous to the technology-based standards applicable to point source 
dischargers under Clean Water Act sections 301, 304, and 306. EPA 
requests comment on these alternative approaches for interpreting 
adverse environmental impact.
    EPA also notes that a number of other options for interpreting or 
defining adverse environmental impact were discussed in the proposal 
(65 FR 49074), and does not intend in this notice to suggest that they 
are not still under active consideration. EPA is still considering all 
of the options for interpreting and defining adverse environmental 
impact that were discussed in the proposal as options for the final 
rule and invites further comment on any of them.

F. Additional Data Related to the Specific Technology Limits in the 
Proposed Regulations

1. Proportional Flow Limits for Freshwater Streams and Rivers and Tidal 
Rivers, Estuaries
    EPA proposed specific flow limits of 5% of mean annual flow of 
freshwater streams and rivers because the Agency determined this would 
be the best way to protect 95% of the aquatic life in these water 
bodies from entrainment. EPA also proposed to limit withdrawals from 
estuaries and tidal rivers to 1% of the tidal excursion. The proposed 
limit is based on the concept that withdrawal of a unit volume of water 
from a water body will result in the impingement and/or entrainment of 
an equivalent unit of aquatic life (particularly eggs and larval 
organisms) suspended in that volume of the water column. This, in turn, 
is related to the idea that the density of aquatic organisms withdrawn 
by a cooling water intake structure is equivalent to the density of the 
organisms in the water column. Thus, if 5% of the mean annual flow (or 
alternative proposed levels of 10% and 15% for freshwater bodies) is 
withdrawn, it will result in the impingement and/or entrainment of 5% 
(or alternative) of the aquatic life in that water body.
    Some commenters asserted that this assumption is not valid. They 
argued that aquatic organisms are not uniformly distributed within the 
water column and that patchy distribution of aquatic organisms 
invalidates the assumption that withdrawal of a certain percentage of a 
water body would correlate to an equivalent withdrawal of aquatic life. 
Since proposal, EPA received new information concerning the 
distribution and density of organisms in natural waters. In #2-013 D 
and E in the Docket, EPA is providing for comment information on the 
density of organisms in the Hudson and Delaware rivers as well as in 
Mt. Hope Bay. In #2-013J in the Docket, the Agency is also providing 
for comment information on models identified by EPRI that may be used 
to estimate and/or evaluate aquatic organism densities in order to 
estimate entrainment rates. EPA believes the use of these data and 
modeling approaches is supportable because assessments of aquatic 
organism densities are the basis for calculations for the empirical 
transport model which is, in turn, the basis for calculating 
conditional mortality rates. Both of these methods are widely used by 
industry and regulatory agencies to estimate losses related to cooling 
water intake structures.
    The Agency has identified information from other State and Federal 
agencies that supports the need for flow-based standards to protect 
aquatic organisms. This information includes methodologies for 
determining the limiting flow conditions for a waterbody for the 
protection and propagation of aquatic life and wildlife in stream 
environments (see #2-026B, #2-026C, and #2-026D in the Docket). EPA 
invites comment on the following documents:

2-026A  Goodyear, C.P. Mathematical Methods to Evaluate Entrainment 
of Aquatic Organisms by Power Plants. U.S. Fish and Wildlife Service 
National Power Plant Team. FWS/OBS-76/20.3. 1977.
2-026B  Lang, Vernon. Questions and Answers on the New England Flow 
Policy. U.S. Fish and Wildlife Service. Concord, New Hampshire. May 
11, 1999.
2-026C  Kulik, Brandon. A Method to Refine the New England Aquatic 
Base Flow Policy. Rivers. Volume 1, Number 1. Pages 8-22.
2-026D  Washington State, Department of Ecology. Questions and 
Answers--An Overview of the Instream Flow Incremental Methodology. 
QWR-95-1-4. August 1995.
2-013J  Dixon, D.A., EPRI. Catalog of Assessment Methods for 
Evaluating the Effect of Power Plant Operations on Aquatic 
Communities. 1999.
2-013L  Cacela, Dave, Stratus Consulting Inc. Memo to JT Morgan, EPA 
RE: Planned Analysis of Ambient Larval Densities and I&E. April 20, 
2001.

    EPA also invites comment on the following supplement to the 
discussion at proposal of the proposed limitations on intake flow as a 
proportion of waterbody flow (see 65 FR 49085-49087). EPA is 
considering whether a proportional flow limitation would have the 
effect of reducing or minimizing adverse environmental impact that may 
be associated with withdrawal of large volumes of cooling water from 
relatively small water bodies. EPA is considering and seeks comment, in 
particular, about the efficacy of the proposed limitation associated 
with the mean annual flow of freshwater streams and rivers. These 
limitations could be effective because large-volume withdrawals 
occurring on a year-round basis may affect all aspects of the life 
cycles of the organisms susceptible to entrainment. Inasmuch as some 
commenters have asserted that aquatic organisms are not uniformly 
distributed within the water column

[[Page 28864]]

(i.e., exhibit ``patchy'' distribution), the withdrawal of large 
volumes of water may, over the course of the year, smooth out the 
``patchiness'' and subject a portion of the biota commensurate with 
intake flow to entrainment. The Agency is considering and seeks comment 
on whether a proportional flow standard based on mean annual flow 
proposed at 40 CFR 125.84(b) will effectively protect smaller 
freshwater rivers and streams from levels of impingement and 
entrainment proportional to the volume of water withdrawn from these 
waterbodies.
2. Limitation on Altering Stratification in Lakes and Reservoirs
    At least one commenter asserted that the regulation as proposed can 
be interpreted to require that no alteration of the natural thermal 
stratification is allowed, regardless of the size, limit, or location 
relative to the intake structure. They further asserted that this 
standard is unachievable and should not be included in the final rule.
    The Agency continues to consider whether these regulations should 
limit withdrawals of large quantities of cooling water from lakes which 
are naturally stratified. In particular, EPA is considering whether the 
withdrawal of large quantities of subsurface water may negatively 
affect a lake's thermal stratification and seasonal turnover dynamics. 
EPA is also considering whether cooling water withdrawals from deeper, 
colder areas within lakes, followed by discharge of used cooling water 
either at, or where it may rise to, the lake's surface, may bring 
nutrient-rich, hypolimnion \1\ water to the surface where it may 
stimulate the growth and respiration of harmful levels of algae and 
other biological assemblages within a lake. EPA is considering and 
invites comment on whether such concerns are appropriately addressed in 
regulation for cooling water intake structures or should be addressed 
by a permitting agency when it establishes any limitations on the 
discharge of the cooling water.
---------------------------------------------------------------------------

    \1\ Hypolimnion: The deep, cold, and relatively undisturbed 
region below the thermocline. From: Hutchinson, G.E. 1975. A 
Treatise on Limnology, Volume 1, Part 1--Geography and Physics of 
Lakes. John Wiley & Sons, New York. (See #2-027B in the Docket).
---------------------------------------------------------------------------

    EPA is also considering whether the proposed limitation to ``not 
alter'' and ``not upset'' natural stratification may be subject to 
considerable interpretation such that the intent of that portion of the 
proposed regulation is not sufficiently clear. Thus, the Agency 
solicits public comments on the information contained in ``Cumulative 
Impacts of Power Plant Cooling Systems on Lake TMDLs'' (see #2-027A in 
the Docket) which supports the idea of maintaining natural 
stratification. EPA also requests comment on the use of the phrase 
``not disrupt the natural stratification and turnover pattern of the 
source water body'' and invites commenters to suggest other 
alternatives to the terms ``not alter the natural stratification of the 
source water body'' or ``not upset the natural stratification of the 
source water body'' as used at 65 FR 49077 and 49118.

2-027A  Chen, C.W., L.H. Ziemelis, J. Herr and R.A. Goldstein. 
Cumulative Impacts of Power Plant Cooling Systems on Lake TMDLs. 
Proceedings of an EPRI Conference : Power generation Impacts on 
Aquatic Resources. Atlanta, Georgia. April 12-15, 1999.
3. Velocity
    EPA proposed 0.5 ft/sec as a velocity limit in all waters except 
those 50 meters beyond the littoral zone in lakes and reservoirs. Since 
proposal, EPA has gathered or received data on the swimming speed of 
fish of various species from EPRI (see W-00-03, 316(b) Comments 2.11), 
from the University of Washington studies that support the current 
National Marine Fisheries Service velocity standard for intake 
structures and from references included in comments from the 
Riverkeeper (see Turnpenny, 1988, referenced in W-00-03, 316(b) 
Comments 2.06. Document found in #2-028B in the Docket). All of the 
swim speed data used is contained in #2-028 in the Docket. Also located 
in #2-028 in the Docket, is new data EPA received from the National 
Marine Fisheries Service on screen design consideration for approach 
velocities to protect juvenile salmonids.

2-028A  EPRI. Technical Evaluation of the Utility of Intake Approach 
Velocity as an Indicator of Potential Adverse Environmental Impact 
Under Clean Water Act Section 316(b). Technical Report. 1000731. 
2001.
2-028B  Turnpenny, A.W. H. The Behavioral Basis of Fish Exclusion 
from Coastal Power Station Cooling Water Intakes. Central 
Electricity Generating Board Research Report, RD/L/3301/R88. 1988.
2-028C  Smith, L.S., L.T. Carpenter. Salmonid Fry Swimming Stamina 
Data for Diversion Screen Criteria. Prepared by Fisheries Research 
Institute, University of Washington, Seattle, WA for Washington 
State Department of Fisheries and Washington State Department of 
Wildlife. 1987.
2-028D  Pearce, Robert O. and Randall T. Lee. Some Design 
Considerations for Approach Velocities at Juvenile Salmonid 
Screening Facilities. American Fisheries Symposium. 1991.

    The Graph (Swim Speed Data, #2-029 in the Docket), is a compilation 
of the data EPA received on fish swimming speeds as it varies with the 
length of the tested fish and with water temperature. These data show 
that, not accounting for any safety margin to address screen fouling 
(which increases velocity in screen areas that remain open), a 1.0 ft/s 
velocity standard would protect 78% of the tested fish, and a 0.5 ft/s 
velocity would protect 96% of these fish. EPA is evaluating these data 
and considering whether to maintain or modify the proposed velocity 
limitation. To estimate the extent to which a low-velocity performance 
standard might affect new facilities, EPA also is evaluating 
preliminary data on the design intake velocity of existing facilities 
from the Agency's section 316(b) survey questionnaire (see Percentage 
Distribution of Intake Velocities for Recently Constructed In-Scope 
Cooling Water Structures, #2-030 in the Docket). These preliminary data 
indicate that 73% of the manufacturing facilities and 62% of the 
electricity generating facilities built in the last 15 years meet the 
proposed velocity limitation of no more than 0.5 feet/second.
    EPA is evaluating a number of other issues that could cause it to 
modify the proposed velocity limitation. As discussed at Section A.3 
above, EPA received comments asserting that offshore and coastal oil 
and gas platforms might be subject to the rule and face difficulties 
meeting the proposed velocity limitation due to biofouling concerns in 
marine waters and engineering/technical issues associated with drilling 
platforms. EPA is evaluating these assertions and seeking additional 
information on this topic. Should EPA include new offshore and coastal 
oil and gas platforms within the scope of the final regulations, the 
Agency will decide whether subcategorization and a different velocity 
limitation may be appropriate for these facilities. EPA is also 
investigating whether biofouling is an issue for cooling water intake 
structures at land-based facilities.
    In response to comments, EPA is evaluating whether the 0.5 ft/s 
velocity limitation is appropriate or necessary for offshore intakes 
equipped with velocity caps. Velocity caps work by changing vertical 
flows, which fish do not avoid because they can not detect, to 
horizontal flows, which fish detect and avoid. Commenters suggested 
that offshore intakes with velocity caps designed with velocities 
greater than 0.5 ft./s would be more effective in reducing biofouling 
than those with lower

[[Page 28865]]

velocities and would be more effective in protecting fish located in 
waterbodies with higher flow velocities. Commenters also raised issues 
associated with the effects of tidal and long-shore currents on 
velocities in the vicinity of velocity caps. EPA identified 
documentation (see Turnpenny, 1988, W-00-03, 316(b) Comments 2.06 in 
#2-028B in the Docket; Mussalli, Taft, Larson, 1980; and Schlenker 2001 
in #2-031B in the Docket ) that may substantiate commenters' concerns 
with the influence of tidal and current velocities on velocities at a 
velocity cap. However, the documentation also provides design solutions 
to minimize the influence of water body currents on velocity caps. EPA 
identified documents indicating that, in these circumstances, limiting 
velocities at intakes with velocity caps may afford some additional 
protection, but that the entrainment reduction may be small. One of the 
documents states that the location of the submerged intake structure 
may be the most important factor in limiting the impact from the intake 
structure. EPA requests comment on the following documents.

2-031A  Mussalli, Yusuf, et al. Offshore Water Intakes Designed to 
Protect Fish. In: Journal of the Hydraulics Division, Proceedings of 
the American Society of Civil Engineers, Vol. 106, No. HY11. 1980.
2-031B  Schlenker, Stephen J, Army Corps of Engineers. Email on: 
Section 316(b) Rulemaking (Velocity) to Kelly Meadows, Tetra Tech, 
Inc. April 18, 2001.
2-028B  Turnpenny, A.W.H. The Behavioral Basis of Fish Exclusion 
from Coastal Power Station Cooling Water Intakes. Central 
Electricity Generating Board Research Report, RD/L/3301/R88. 1988.

    EPA also requests comment on the American Society of Engineers' 
Design of Water Intake Structures for Fish Protection (see #2-032 in 
the Docket) which suggests that design velocities should range from 0.5 
ft/s to 1.5 ft/s. Based on comments and these documents, the Agency 
requests comment on allowing velocities of up to 1.5 ft/s at offshore 
intake structures with velocity caps in all types of waterbodies.

2-032  American Society of Engineers. Design of Water Intake 
Structures for Fish Protection. Section III. Engineering Factors 
Influencing Intake Design and Parts of Section VI. Practical Fish 
Protection Methods (Velocity Cap for Offshore Water Withdrawals). 
New York. pp. 13-23 and 66. 1982.

    Finally, EPA is considering comments on where velocity should be 
measured. Some commenters assert that velocity should be measured on 
the basis of ``approach-velocity'' rather than the proposed design 
intake velocity (also known as through-screen or through-technology 
velocity). Other commenters assert that velocity should be measured 
where its value is highest, which might be at the screen face or at 
another location in front of the screen (for example, at a narrow 
constriction in an intake canal or at a narrow opening in a curtain 
wall placed in front of the screen). (See W-00-03, 316(b) Comments 2.06 
(River Keeper) and 1.56 (EPRI). EPA is also providing for comment, the 
document contained in #2-033 in the Docket.

2-033  Ray, S.S., R.L. Snipes, and D.A. Tomljanovich. A State of the 
Art Report on Intake Technologies. Environmental Protection Agency 
Office of Research and Development, Office of Energy, Minerals, and 
Industry. EPA 600/7-76-020; TVA PRS-16. 1976.
4. Rulemaking Framework--Burden on States To Implement Section 316(b) 
on a Case-by-Case Basis
    One objective of EPA's proposed rule was to develop section 316(b) 
requirements applicable to broad classes of waterbodies in order to 
minimize the permitting burden on the States (which, for the most part, 
are the permit authorities responsible for implementing section 
316(b)). Some States have expressed concern about adopting a site-
specific approach for new facilities which, in their view, would 
require a burdensome expenditure of resources to develop section 316(b) 
requirements for each new facility. States that commented on the 
proposed regulations, including Michigan, New York, New Jersey, and 
Alaska, generally supported the adoption of minimum technology 
requirements. Michigan and New Jersey specifically expressed concern 
about the existing case-by-case approach. Only Louisiana specifically 
opposed adoption of the proposed regulations, stating that any 
requirements for cooling water intake structures should be implemented 
under the CWA section 404 program or under section 10 of the Rivers and 
Harbors Act.
    EPA invites comment on additional information documenting resources 
that several States have devoted to implementing section 316(b) on a 
case-by-case basis (see #2-034A-B in the Docket). EPA will consider 
this information as the Agency evaluates the practicality of various 
alternatives for the final rule. EPA invites commenters to submit any 
other data on the workload associated with implementing section 316(b) 
under the current case-by-case approach. EPA also invites comment on 
the need for nationally applicable regulations, as opposed to a site-
specific approach, in order to minimize the burden on States for 
permitting new facilities. EPA invites comment again on its estimates 
of the cost to States to implement the proposed requirements (See #1-
5067-PR, Information Collection Request for Cooling Water Intake 
Structures New Facility Proposed Rule, Chapter 6), and acknowledges 
that these costs may change based on any changes in the final 
regulations.

2-034A  Sarbello, Bill, NYDEC. Memo to J.T. Morgan, EPA RE: Costs 
Associated with 316(b) Permitting Activities in NY State. February 
26, 2001.
2-034B  Reading, Jeffrey, NJDEP. Letter to Sheila Frace, EPA RE: 
Request for Information Regarding Staffing and Resources Required in 
Applying Section 316(b). April 24, 2001.
5. Recently-Constructed Facilities Already Implementing the Proposed 
New Facility Requirements
    To estimate the percentage of manufacturers, utilities and 
nonutilities constructed in the last fifteen (15) years that meet 
various proposed requirements for cooling water intake structure 
technology, EPA performed an analysis using detailed questionnaire 
data. These preliminary data indicate that 47% of the recently-
constructed manufacturers, 42% of the recently-constructed 
nonutilities, and 53% of the recently-constructed utilities meet the 
proposed requirement to install additional design and construction 
technologies such as a traveling screen with a fish return system, a 
wedge wire screen, or a fine mesh screen with a fish return system. 
(see #2-035A in the Docket).
    EPA performed a similar analysis of the detailed questionnaire data 
to estimate what percentage of in-scope facilities constructed during 
the last 15 years meet the proposed requirement for reducing intake 
flow to a level commensurate with use of a recirculating cooling water 
system. These preliminary data show that 38% of the manufacturing 
facilities, 66% of the nonutility facilities, and 70% of the utility 
facilities have closed-cycle, recirculating cooling systems. (see #2-
035B in the Docket). EPA is now working to verify the accuracy of these 
estimates as they appear to be lower than the estimated percentages in 
the record at proposal based on information from DOE's Energy 
Information Agency and RDI's NEWGen database.
    Finally, EPA analyzed the detailed questionnaire data to estimate 
what percentage of the in-scope manufacturing, utility and nonutility 
facilities constructed in the last 15 years meet all three of the 
proposed

[[Page 28866]]

requirements for: (1) Reducing intake capacity to a level commensurate 
with use of a closed-cycle recirculating cooling system: (2) reducing 
intake velocity to no more than 0.5 ft/sec; and (3) developing a plan 
and installing additional design and construction technologies. The 
analysis shows that 16% of these manufacturers, 31% of these 
nonutilities, and 44% of these utilities meet all three performance and 
technology standards. (see #2-035C in the Docket). Based on these data, 
EPA is considering and invites comment on whether it is reasonable for 
new facilities to meet these proposed standards.

G. Revision in Costing and Energy Impacts Estimates

1. Energy Consumption Associated With Alternative Cooling Systems
    At proposal, EPA invited comment on a regulatory alternative that 
would require zero or extremely low intake flow commensurate with 
levels achievable through the use of dry-cooling systems. EPA discussed 
and invited comment on a number of issues including any potential 
energy penalty at new facilities using dry-cooling systems.
    Alternatives to conventional wet cooling towers or once-through 
systems are often described as dry cooling systems but, in fact, may 
include hybrid wet-dry cooling systems. These alternative cooling 
systems may be less efficient in rejecting heat than conventional wet 
cooling towers or once-through systems. Alternative cooling systems 
generally have higher parasitic (fan) electrical loads and can create a 
higher pressure (temperature) in the steam turbine condenser. Both of 
these factors can decrease the thermal efficiency and power output of 
the plant. Estimating the nature of this penalty is difficult given 
that the facility could be designed and operated in a variety of ways 
using one of these alternative cooling technologies. As discussed at 
proposal, climactic conditions may significantly influence the 
efficiency of alternative cooling systems (see 65 FR 49081). For 
instance, dry cooling systems can be less efficient during warmer 
periods than during cooler periods.
    At proposal, EPA's discussion of energy inefficiency due to cooling 
requirements focused on energy penalties associated with the operation 
of dry cooling systems. Since proposal, EPA has sought out information 
measuring and/or estimating comparable efficiencies of cooling towers 
(wet, dry, and hybrid) to once-through cooling systems. EPA discovered 
some additional information comparing dry and hybrid cooling towers to 
wet cooling towers and obtained a limited amount of information on the 
topic through public comment. EPA invites comments on the following new 
data (see #2-036A-D in the Docket):

2-036A Pryor, Marc. ``Supplemental Testimony to the La Paloma 
Generating Project (98-AFC-2) Final Staff Assessment. California 
Energy Commission. April 20, 1999.
2-036B Western Area Power Administration Sierra Nevada Region Sutter 
Power Plant. ``Summary of the Presiding Members Proposed Decision on 
Other Commission Decisions'', Chapter 3. April 1999.
2-036C SAIC. Memo to File RE: Steam Plant Energy Penalty Evaluation. 
April 20, 2001.
2-036D Edison Electric Institute. Environmental Directory of Power 
Plants. 1996

    EPA intends to revise the operation and maintenance costs of its 
estimates for wet and dry cooling towers to include the marginal cost 
of energy penalties. EPA intends to estimate any energy penalties as 
compared to cooling systems that new facilities would be likely to 
install absent final regulations. When EPA projects that a facility 
would switch from a once-through cooling system to a closed-cycle 
cooling system employing a wet cooling tower to comply with final 
regulations, EPA will estimate the energy penalty based on values 
derived from documents already in the record, the new materials 
referenced above, and similar sources of information. To project the 
energy penalty of dry cooling systems compared to once-through cooling 
systems, EPA will use its estimate of the energy penalty of a closed-
cycle cooling system employing a wet cooling tower, then estimate any 
additional energy penalty imposed by use of a dry cooling system based 
on documents already in the record, the new materials referenced above, 
and similar sources of information. To project the energy penalty of 
dry cooling towers compared to a closed-cycle cooling system employing 
a wet cooling tower, EPA will estimate the energy penalty based on 
documents already in the record, the new materials referenced, and 
other relevant sources of information.
2. Specific Revisions to Inputs to Costing Model for Wet Cooling Towers 
and Dry Cooling Systems
    Some public comments on the proposed regulations assert that EPA's 
annual cost estimates for wet cooling towers did not include essential 
components such as wiring, foundations, condenser pumps, and noise 
attenuation treatment. EPA did not separately identify these items in 
the estimates presented at the time of proposal because the Agency used 
empirical models based on actual construction project costs to verify 
its costing estimates. These empirical models represent the cost to the 
plant and include all essential components. However, to further 
document the annual costs that EPA used in its cost estimates for wet 
cooling towers, EPA requests comment on the new data in EPA's April 23, 
2001 memorandum titled, ``Supporting Documentation for Unit Costs'' 
contained in #2-037 of the Docket.
    Since proposal, EPA collected additional project cost information 
to verify its empirical cost models. EPA requests comment on the 
capital cost information contained in #2-037 of the Docket.
    Based on literature and vendor information, EPA's proposal 
estimated a 10 degree Fahrenheit design approach value for wet cooling 
towers. EPA requests comment on information contained in #2-037 of the 
Docket in support of this value.
    EPA proposed that operation and maintenance (O&M) costs of wet 
cooling towers reflect an ``economy of scale'' with increasing size. 
Therefore, in some cases, as the size of the cooling tower increases, 
O&M costs decrease per unit of water cooled. EPA is supplementing the 
record to support its assumption that there are ``economies of scale'' 
based on comments received on the proposal. EPA has placed information 
in the record to support EPA's methodology for calculating O&M costs 
for wet cooling towers (see #2-037 in the Docket).
    At proposal, EPA assumed that some new facilities would use once-
through cooling systems absent final regulations and would switch to a 
closed-cycle cooling system employing a wet cooling tower. In these 
cases, EPA costed the water flow used in the recirculating cooling 
tower as 15 percent of the original flow. EPA acknowledges that this 
assumption does not match standard industry design practice. EPA 
intends to revise its estimates of recirculating flow upward based on 
the entire flow of cooling water through the cooling tower and will 
size and cost the recirculating pumps accordingly.
    EPA's proposed wet cooling tower costs may have included elevated 
capital costs due to a design estimate that plume abatement would be 
applied at a large proportion of the cooling towers built as a result 
of the regulations. Since proposal, EPA sought

[[Page 28867]]

additional information regarding industry practice for wet cooling 
tower construction and the use of plume abatement. Through vendor 
contact, EPA learned that wet cooling towers generally do not 
incorporate plume abatement technologies. Therefore, EPA intends to 
revise its wet cooling tower estimates to reflect a reduced 
implementation of plume abatement techniques. EPA also intends to study 
the sensitivity of costs with respect to this aspect of its cost 
estimates. (See #2-037 in the Docket.)
    At proposal, EPA estimated the marginal annual cost of dry cooling 
towers over once-through cooling systems but did not explain its 
methodology for estimating the capital and O&M costs of dry cooling 
towers. EPA invites comment on the information the Agency used to 
estimate annual costs of dry cooling towers placed in the record. (See 
#2-037 in the Docket.)
    EPA obtained further information relating to the capital cost of 
dry cooling towers since proposal. The Agency invited comment on the 
following information:

2-037  EPA. Memo to File RE: Supporting Documentation for Unit Cost 
Analysis. April 23, 2001.

In addition, EPA invites comment on the following documents:

2-036A  Pryor, Marc. Supplemental Testimony to the La Paloma 
Generating Project (98-AFC-2) Final Staff Assessment. California 
Energy Commission. April 20,1999.
2-036B  Western Area Power Administration Sierra Nevada Region 
Sutter Power Plant. Summary of the Presiding Members Proposed 
Decision on Other Commission Decisions, Chapter 3. April 1999.

EPA also obtained information on the cost of dry cooling systems 
through public comment. Cost information, as well as general comments 
received on dry cooling are included in the public record: (See #2-
038A-B in the Docket.)

2-038A  Dougherty, Bill. Comments on the EPA's Proposed Regulations 
on Cooling Water Intake Structures for New Facilities. Tellus 
Institute. November 8, 2000.
2-038B  Burns Engineering Services, Inc. and Wayne C. Micheletti, 
Inc. Comparison of Wet and Dry Cooling Systems for Combined Cycle 
Power Plants. November 4, 2000.
2-038C  Public Comments on Dry Cooling in Response to Proposed Rule 
of August 10, 2000.
3. Other Environmental Impacts
    EPA discussed the water quality and non-water quality impacts of 
cooling towers (both wet and dry) at proposal (see 65 FR 49075 and 65 
FR 49081). However, EPA did not quantify all impacts that may result 
from implementation of the rule. For the final rule, EPA intends to 
estimate, to the extent possible, the marginal increases in emissions 
of air pollutants associated with wet and dry cooling towers. The 
Agency intends to compare projected emissions under the rule to 
projected emissions absent the rule. (At proposal, EPA projected that, 
regardless of the outcome of the rule (that is, absent these 
regulations) a majority of units would have wet cooling towers and a 
minority would have once-through or dry cooling systems.)
    EPA may estimate air emissions using the permit application 
calculations required by the Colorado Department of Public Health and 
Environment (CDPHE), Colorado Air Pollution Control Division, 
Stationary Sources Program. This program requires emissions estimates 
for new power generating permits according to the codified guidance at 
40 CFR chapter 1, appendix W to part 51 (July 1, 1999). The technique 
would use emissions factors from the Compilation of Air Pollutant 
Emission Factors, Volume I (AP-42) for stationary turbines and derive 
estimates of pollutant emissions for each type of unit. EPA would 
adjust the emissions estimates, when appropriate, to reflect a marginal 
comparison by using energy penalty estimates. For example, in the case 
where EPA examines any increase in emissions of air pollutants due to 
dry cooling, it would base this estimate on a calculation of any energy 
penalty associated with dry cooling as compared to energy use at plants 
projected to install wet closed-cycle cooling systems or once-through 
cooling systems absent these regulations. EPA expects that a small 
fraction of facilities would not experience any increased air pollutant 
emissions because that they are projected to use dry cooling, 
regardless of the outcome of the rule.
    Alternatively, EPA may estimate air emissions using the Emissions & 
Generation Resource Integrated Database (E-GRID2000). This database 
integrates data from 18 different federal sources and provides 
emissions and resource mix data for every plant, electric generating 
company, state and region in the country. From E-Grid 2000, EPA may 
generate an emission rate per MWh or loaded hour for NOX, 
SO2, CO2, and Hg to estimate increased emissions 
at plants that consume additional fuel because they install a wet or 
dry cooling tower to comply with final regulations. Such an analysis 
would presume that an individual plant increase its loading in order to 
meet this energy cost as opposed to delivering less power to the grid 
which in turn would be made up by a different plant.
    The following references are included in the record for public 
review. (See #2-039A-C in the Docket.)

2-039A  Kendal, Ashley L. Technical Review Document Operating Permit 
960PMR153. March 16, 1998.
2-039B  40 CFR Ch.1 (7-1-99 Edition). Pt. 51, App. W. Pages 390-481.
2-039C  EPA. AP-42, Fifth Edition, Volume 1 [Section 3.1]. April 
2000. (Available at: http://www.epa.gov/ttn/chief/ap42.)
4. Baseline Biological Characterization Study and Impingement and 
Entrainment Monitoring During the Permit Term
    EPA's proposed regulations would require a permit applicant to 
complete a ``source water baseline biological characterization'' based 
on at least one year of pre-operational biological monitoring (proposed 
40 CFR. 125.86). The applicant would use this information to develop a 
plan for installing additional design and construction technologies 
(such as screens, or barrier nets, or well-designed return systems for 
impinged fish). This information would also support the permitting 
agency (in most cases, a State) in considering whether site-specific 
conditions warrant more than the baseline regulatory protections (see 
proposed 40 CFR 125.84(f) and (g)). The proposed regulations would also 
require permittees to conduct impingement monitoring over a 24-hour 
period once per month during the first two years of the permit and to 
conduct entrainment monitoring over a 24-hour period no less than 
biweekly during the period of peak reproduction and larval abundance. 
After two years, the permitting agency could reduce impingement and 
entrainment monitoring frequency in the remaining permit term and when 
the permit is reissued (proposed 40 CFR 125.87).
    The July 2000 ``Information Collection Request for Cooling Water 
Intake Structures New Facility Proposed Rule'' (ICR) estimated costs 
for the Sourcewater Baseline Characterization Activities and for 
entrainment and impingement monitoring based on Bureau of Labor 
Statistics base wage rates multiplied by time spent in each labor 
category. Direct Labor Costs and Operation and Maintenance Costs were 
added to estimate the burden and costs per facility. The ICR states 
that the Sourcewater Baseline Characterization costs would include 
$19,500 for contracted laboratory assistance with monitoring, taxonomy 
and data

[[Page 28868]]

tabulation (plus $500 for other direct costs (ODCs)). Similarly, text 
in the ICR states that contracted lab costs for entrainment and 
impingement monitoring would amount to $19,500 and $4,580, respectively 
(plus $500 in ODCs). Tables 7 and 8 of the ICR indicate that the 
Sourcewater Baseline Characterization would cost each facility $11,655 
in labor and $750 in ODCs; entrainment monitoring would cost $14,675 in 
labor and $4,000 for ODCs; and impingement monitoring would cost $6,736 
labor plus $2,000 ODCs. However, the contracted laboratory costs 
discussed in the text of the ICR are not included in these tables. 
Thus, to eliminate confusion about EPA's estimated costs for biological 
monitoring in the ICR, the Agency states that it used the following 
cost estimates at proposal: approximately $32,000 for Sourcewater 
Baseline Characterization per facility; approximately $38,000 annually 
for entrainment monitoring per facility; and approximately $13,000 
annually for impingement monitoring per facility. These costs were 
considered an average cost for all types of waterbodies combined.
    EPA received comment from several commenters, including UWAG and 
EPRI, asserting that EPA's proposal underestimated the costs of 
biological monitoring (see UWAG comments at W-00-03, 316(b) Comments 
1.68 and EPRI's comments at W-00-03, 316(b) Comments 1.56). As 
discussed in the memorandum, ``316(b) Monitoring Cost Estimates for New 
Facilities,'' EPA has refined its cost estimates and believes it should 
use cost ranges that, for the sourcewater baseline characterization and 
entrainment monitoring, vary for different types of waterbodies. EPA 
invites comment on the following revised cost estimates. (See #2-040 in 
the Docket.)
     Sourcewater Baseline Characterization: $8,000 to 25,000 
for a freshwater stream/river; $8,000 to 35,000 for a lake/reservoir; 
$8,000 to 50,000 for an estuary/tidal river; and $8,000 to 70,000 for 
an ocean.
     Biological Monitoring--Entrainment: $15,000 to 40,000 for 
a freshwater stream/river; $15,000 to 40,000 for a lake/reservoir; 
$20,000 to 50,000 for an estuary/tidal river; and $20,000 to 50,000 for 
an ocean.
     Biological Monitoring--Impingement: $10,000 to 25,000 for 
a freshwater stream/river, a lake/reservoir, an estuary/tidal river and 
an ocean.

To develop these cost estimates, the Agency consulted biological 
monitoring practitioners who conduct impingement, entrainment and other 
types of biological monitoring studies. These revised estimates reflect 
that the equipment, effort and expertise needed to sample an ocean 
facility, for example, would be more costly than that needed to monitor 
a facility located on a stream or small river.
    EPA received comment asserting that a one-year sourcewater 
biological characterization would provide information of limited 
utility, particularly in estuarine and coastal areas where fish 
populations exhibit tremendous inter-annual variability (see EPRI 
comments at W-00-03, 316(b) Comments 1.56 in the Docket). Among other 
concerns, this commenter asserted that the baseline year may not 
represent average population characteristics. In response to these 
comments, EPA invites comment on the documents located in #2-041 in the 
Docket. This information generally supports the assertion that a multi-
year baseline reduces the confounding effect of year-related phenomenon 
on assessments and (see EPA 1990, referenced below) provides a better 
basis for evaluating management actions:

2-041A  Meador, M.R., T.F. Cuffney and M.E., Gurtz. Methods for 
sampling fish communities as a part of the National Water Quality 
Assessment Program. U.S. Geological Survey Open-File Report 93-104. 
Raleigh, North Carolina. 40p. 1993.
2-041B  Leahy, P.P., J.S. Rosenshein, and D.S. Knopman. 
Implementation plan for the National Water Quality Assessment 
Program. U.S. Geological Society. Open-File Report 90-174, 10 p. 
1990.
2-041C  Holland, A.F. (ed)., EPA. Environmental Monitoring and 
Assessment Program-Near Coastal Program Plan for 1990: Estuaries, 
Chapter 2. 1990.

EPA is considering and invites comment on whether it should extend the 
time period for the baseline biological characterization study for 
tidal rivers, estuaries, and oceans to address inter-annual variability 
of fish populations in these areas.

H. Industry Approach

     Fast-Track Alternative
    In comments on the proposed regulations and in other materials EPA 
recently received, the Utility Water Act Group (UWAG), an industry 
trade association, has suggested that EPA consider an alternative based 
on several of the regulatory alternatives EPA described at proposal 
(see UWAG. Email to EPA RE: Brief Description of a Two-track Process. 
April 12, 2001, in #2-042 in the Docket). Under this approach, a 
company seeking to build a new facility could pursue one of two tracks: 
either (1) to commit to one or more of a number of specified 
technologies deemed to represent highly protective technology at the 
outset or (2) to engage in a site-specific study to determine the best 
technology available (BTA) for the site.
    Under Track 1 (the ``fast track''), an applicant would commit to 
install highly protective technologies in return for expedited 
permitting without the need for pre-operational or operational studies 
in the source waterbody. Such fast-track technologies might include:
    1. Any technologies that limit intake flow to the flow that would 
be required by wet closed-cycle cooling at that site and that has an 
average approach velocity (measured in front of the cooling screens or 
the opening to the cooling water intake structure) of no more than 0.5 
fps; or
    2. Any technologies that will achieve a level of protection from 
impingement and/or entrainment that is within the range expected under 
Option 1 for closed-cycle cooling (with 0.5 fps approach velocity) on 
the type of waterbody where the facility is to be located. This option 
is intended to allow facilities to use either standard technologies, or 
new ones, that have been demonstrated to be effective for the species, 
type of waterbody, and flow volume of the cooling water intake 
structure proposed for their use. Examples of candidate technologies 
would include:
    a. Wedgewire screens where there is constant flow, as in rivers;
    b. Traveling fine mesh screens with a fish return system designed 
to minimize entrainment and impingement mortality; and
    c. Gunderbooms at sites where they would not be rendered 
ineffective by high flows or fouling.

If the operator of a new facility chose to install such highly 
protective intake technologies and validated their performance, as 
necessary, the permitting agency would not require additional section 
316(b) protective measures for the life of the facility, unless EPA 
established different technology requirements by rulemaking.
    UWAG believes that the record developed to date indicates that the 
combination of flows associated with closed-cycle cooling and low 
intake velocity reduce entrainment and impingement mortality to such 
low levels that adverse environmental impact (``AEI'') is avoided 
thereby not just meeting, but exceeding the section 316(b) standard of 
protection. UWAG also believes that information in the record and 
additional materials described in Section H.2. below demonstrates that 
other technologies,

[[Page 28869]]

including those above, when used properly, may provide a level of 
protection within the same range and thus would also be highly 
protective of aquatic resources.
    Closed-cycle cooling and extremely low approach velocities have 
been used to avoid levels of entrainment and impingement mortality that 
could cause adverse environmental impact. Nevertheless, UWAG states 
that some interested parties have argued that EPA cannot support a 
finding that such technologies constitute BTA due to factors such as 
very high capital and other costs compared to environmental benefits, 
cross-media effects, site-specific factors (such as land constraints or 
habitat or air emissions concerns), or jurisdictional issues regarding 
cooling towers (which some commenters argue are part of the cooling 
system, not ``intake structure'' technologies). These stakeholders 
argued that such low flows and velocities are far more conservative 
than needed to meet the statutory standard of ``best technology 
available to minimize adverse environmental impact.'' This objection 
would be beside the point under this alternative, because EPA would not 
define these technologies as BTA for ``minimizing'' adverse 
environmental impact but instead determine that they avoid adverse 
environmental impact altogether. Using this approach, the final rule 
would reflect EPA's determination that, where the permittee proposes to 
use a demonstrated technology that meets the above criteria, the 
technology would, in almost every case, avoid adverse environmental 
impact and exceed the requirements of section 316(b). UWAG believes 
that financing issues associated with uncertainty and delay during 
periods of pre-permitting biological study (described in Section H.3 
below) would make the fast-track option highly desirable for many new 
facility applicants who otherwise might face significant difficulties 
that are building new facilities that are urgently needed to meet 
increased demand for electricity.
    UWAG also suggested that, in conjunction with its fast-track 
alternative, EPA should use a similar approach to encourage rather than 
foreclose alternative or innovative intake structure technologies that 
provide a level of protection reasonably consistent with the criteria 
established above. If a proponent of a new facility knows of an 
alternative technology but cannot try it without extensive pre-
operational site-specific studies, he or she may not be inclined to 
take the risk of developing the new technology. To remove this 
disincentive, EPA could allow expedited permitting when an applicant 
can demonstrate, as part of its permit application, that the intake 
structure technology it proposes will achieve a level of protection 
reasonably consistent with the criteria established in Option 1 above. 
Such a demonstration would not require source waterbody studies. It 
might instead be based on successful use of the innovative technology 
at a comparable site or successful testing in a laboratory or a pilot-
scale trial. Some monitoring after the facility begins operating may be 
appropriate to validate the design performance of alternative 
technologies.
    In addition, UWAG suggests that, as part of this approach, EPA 
could in the future approve additional, alternative ``fast-track'' 
technologies based on accumulated experience. There could potentially 
be unusual species-specific circumstances in which fast-track 
technologies meeting the above criteria would not be sufficient to 
avoid adverse environmental impact. While, in UWAG's view, the number 
of such sites will be very small, the rule could nevertheless give 
permit writers the authority to require additional protective 
technology if the permitting agency has information that exceptional 
conditions exist such that, even with fast-track technology, the 
proposed facility would adversely impact a representative indicator 
species in a way that other federal or state requirements, such as the 
Endangered Species Act, would not prevent. EPA invites comments on 
those proposals as well.
    Track 2 of the industry approach would be for facilities and sites 
for which the applicant does not want to commit to any of the above 
technology options but believes that a close look at site 
characteristics, including the local biology, would justify another 
intake technology, such as once-through cooling. For these situations, 
the applicant could demonstrate to the permitting agency, based on 
site-specific studies, either that the proposed intake would not create 
an appreciable risk of adverse environmental impact or, if it would 
create an appreciable risk of adverse environmental impact, that the 
applicant would install technology to ``minimize'' adverse 
environmental impact. Such demonstrations would recognize that some 
entrainment and impingement mortality can occur without creating 
``adverse environmental impact,'' but, where there was an appreciable 
risk of adverse environmental impact, the technology that would 
``minimize'' it would also be the technology that maximized net 
benefits. If the proposed intake created an appreciable risk of adverse 
environmental impact, the applicant would have to identify all 
reasonably available intake structure technologies that would reduce 
the impact to the aquatic community and that would be feasible for the 
site. The applicant would also estimate both the costs and benefits of 
each such technology, including the impacts of the cooling water intake 
structure on aquatic biota, as well as the monetary costs of 
construction and operation, energy costs, and environmental costs such 
as air pollution, aesthetics, and land use. Summing the costs and 
benefits for each ``available'' technology, the permittee would choose 
as ``best'' the one that had the highest net benefit. Industry asserts 
that efficient methods for assessing costs and benefits, based on a 
variety of federal precedents, might be developed to determine the net 
benefits without undue delay or uncertainty. Industry did not specify 
what federal precedents or methods for assessing benefits would be 
applied.
    Under the industry approach, the second track would not require the 
same type or intensity of study for every site or every proposed plant 
design. In designing a Track 2 study to determine whether there is an 
appreciable risk of adverse environmental impact and, if so, what will 
``minimize'' it, the applicant and permitting agency could apply a 
series of tests to focus the study. First, no further study would be 
necessary if the intake draws its water from an area not designated for 
protection of fish or aquatic life (in accordance with the requirements 
of 40 CFR part 131) or an area that does not support or could not 
support vulnerable life stages of representative indicator species due 
to lack of dissolved oxygen or for other reasons. Second, an intake 
structure would not have to be assessed for entrainment if it withdraws 
an amount no greater than a given percentage of the source waterbody 
that has proven to be extremely conservative. (UWAG asserts that some 
interested parties have suggested a value of 5% or less of the 90% 
exceedance flow of a river \2\ or 5% or less of the volume of the 
biological zone of influence in a lake or reservoir, measured when 
entrainable life stages of representative indicator species are 
present.) Third, the proposed facility would not have to be assessed 
for entrainment if it were designed to

[[Page 28870]]

ensure that entrainment losses of equivalent adults would be less than 
a value that has generally proven to be highly conservative or not 
inconsistent with fishery management plans. (Some interested parties, 
UWAG asserts, have suggested values equal to or less than 1% of the 
population of any commercially or recreationally important species and 
equal to or less than 5% of the population of non-harvested species.) 
The permitting agency would consider survival rates for entrained 
representative indicator species in applying this test.
---------------------------------------------------------------------------

    \2\ In this case, a facility would not require entrainment 
assessment if it withdrew 5% or less of the low flow condition that 
is exceeded in a river at least 90% of the time.
---------------------------------------------------------------------------

    Under the industry-suggested Track 2 approach, some proposed new 
facilities might be able to use the Track 2 tests to show that they 
would not cause adverse environmental impact and, therefore, would need 
no further analysis. Others might find that the Track 2 tests 
eliminated from concern some risks (entrainment, for example) or some 
species. For these proposed facilities, once the necessary studies had 
been focused by the Track 2 tests, the applicant would assess the 
likelihood that the intake would cause an appreciable risk of adverse 
environmental impact. They would use a process like that outlined in 
EPA's Ecological Risk Assessment Guidelines (see #2-020D in the 
docket), using biological, locational, design, and operational data 
from the site. If the study showed an appreciable risk of adverse 
environmental impact, then the applicant would be obligated to identify 
all reasonably available technologies that would be feasible at the 
site. It would then perform the cost-benefit analysis described above 
to determine which technology would maximize net benefits. EPA requests 
comment on this approach.
    In considering the industry approach, EPA also solicits comment on 
the following potential modifications. EPA is considering a fast-track 
approach that would be based on a commitment by the facility to employ 
a suite of technologies that would be determined to represent BTA for 
the fast-track option. The technologies under consideration are: 
reduction in capacity commensurate with that achievable by use of a 
closed-cycle cooling system; a velocity limitation of less than or 
equal to 0.5 ft/sec; and location where intake capacity would be no 
more 5% of the mean annual flow or 25% of the 7Q10 flow of a freshwater 
stream or river, no more than 1% of the tidal excursion volume of a 
tidal river or estuary, or where the intake capacity would not disrupt 
the natural stratification and turnover patterns of a lake or 
reservoir. EPA is also considering designating the following two 
additional design and construction technologies as part of a fast-
track, BTA suite of technologies: a fine mesh traveling screen with a 
fish return system, variable speed pumps and a low pressure spray; or a 
submerged wedgewire fine mesh screen. (By contrast, industry's 
suggested approach would be that in order to qualify for fast track 
permitting, facilities would commit to either low velocity, closed-
cycle cooling or a once-through cooling system with an intake equipped 
with one of a number of other technologies, e.g., wedge wire screens, 
fine mesh traveling screens with a fish return system, or Gunderbooms, 
based on a determination in the final rule that these other 
technologies may be as effective as closed-cycle cooling with a 
velocity limit of 0.5 ft/sec for purposes of reducing impingement and 
entrainment for the species, type of waterbody, and flow volume of the 
cooling water intake structure proposed for their use.)
    Under the modification EPA is considering, the fast-track 
technologies and performance standards would reflect levels that some 
newer facilities have achieved. Based on data on existing facilities in 
the record at proposal, EPA estimates that almost all new facilities 
are likely to meet the proposed proportional flow standard for 
freshwater rivers (total intake flow less than 5% of mean annual flow 
or 25% of the low flow that occurs over a one-week period no more than 
once every 10 years) and for estuaries and tidal rivers (total intake 
flow no greater than one percent of the volume of the water column 
within the area centered about the opening of the intake with a 
diameter defined by the distance of one tidal excursion at the mean low 
water level). As discussed at Section F.5 above, 16% of the 
manufacturing, 31% of the nonutility and 44% of the utility facilities 
constructed in the last 15 years meet all three of the proposed 
requirements for: (1) Reducing intake capacity to a level commensurate 
with use of a closed-cycle recirculating cooling system; (2) reducing 
intake velocity to no more than 0.5 ft/sec; and (3) developing a plan 
and installing additional design and construction technologies. (See 
#2-035C in the Docket). Under this approach, EPA would define these 
technologies as BTA for the fast-track option.
    Other alternatives for fast-track technologies include:
     Dry cooling, either at all locations or in certain 
waterbodies determined to be particularly sensitive to impacts from 
cooling water intake structures, or in certain regions in the country 
where dry cooling is demonstrated, or at certain sizes of facilities 
where dry cooling is particularly well-demonstrated;
     Differing suites of ``fast-track'' technologies based on 
the type of waterbody or the facility's location within a waterbody 
(e.g., adding additional fast-track technologies in tidal rivers and 
estuaries over those required in the parts of oceans, freshwater rivers 
and streams, and lakes and reservoirs that may be designated as less 
sensitive than other parts of these areas).
    EPA also invites comment on other possible modifications to the 
industry fast-track option:
     EPA is considering a modification where limited pre-
operational monitoring would be required. Under this approach, the 
planned facility would be required to monitor at the proposed site 
during the time of year of highest egg and larval abundance, which 
should correspond to the peak period for impingement and entrainment 
vulnerability. To the extent that the proposed year-long timeframe for 
pre-operational monitoring could result in significant delay in 
building a new facility, this modification might reduce those delays 
for some or many facilities. However, EPA recognizes that, depending on 
construction schedules and how they relate to the time of year when 
monitoring would be required this modification could limit the 
usefulness of the fast track approach for some new facilities.
     EPA is considering a modification where the permit would 
contain some or all of the proposed operational monitoring requirements 
at proposed 40 CFR 125.87, 65 FR 49121 or a reduced frequency of 
operational monitoring requirements.
     EPA is considering a modification where the permitting 
authority (most often a State) would retain authority to revisit 
section 316(b) requirements at permit renewal based on the facility's 
impingement and entrainment monitoring data or other new information 
(see proposed 40 CFR 125.84(f) and 40 CFR 125.84(g)).
     EPA is considering a modification where the Director 
(usually, a State official) could require pre-operational studies under 
circumstances similar to those described in proposed 40 CFR 125.84(f), 
65 FR 49119, and/or proposed 40 CFR 125.84(g), 65 FR 49119 or at the 
Director's discretion. For example, the Director might require pre-
operational monitoring if he or she determines it is reasonably 
necessary as a result of the effects of multiple cooling water intake 
structures in the same body of water (40 CFR 125.84(f) or it is 
reasonably

[[Page 28871]]

necessary to ensure attainment of water quality standards (40 CFR 
125.84(g)).
    EPA is also considering and invites comment on the following 
modifications to the industry's Track 2 option:
     EPA is considering a modification where, in all but 
exceptional or unusual circumstances (e.g., where a State or Tribe has 
designated a waterbody as having no use for supporting the propagation 
or maintenance of aquatic life and EPA has approved the revised use). A 
Track 2 facility would need to conduct a site-specific study that, at a 
minimum, meets the proposed requirements for a one-year source water 
baseline biological characterization at proposed 40 CFR 125.86 or, 
alternatively, for oceans, tidal rivers and estuaries, a longer study 
period might be required as discussed at Section G.4.
     Under the industry approach, an intake structure would not 
have to be assessed for entrainment if it withdraws an amount no 
greater than a given percentage of the source waterbody. The industry 
approach suggests a value of 5% or less of the 90% exceedance flow of a 
river or 5% or less of the volume of the biological zone of influence 
in a lake or reservoir, measured when entrainable life stages of 
representative indicator species are present. EPA is analyzing these 
proposed screening criteria at one location. As discussed in an EPA 
Memorandum to the Record titled ``Utilities Proposal Re: Assessment for 
Entrainment,'' April 19 2001 (see Docket #2-043 in the Docket), at one 
location for which data are readily available, the threshold proposed 
by industry for entrainment assessment in rivers would equal about 40% 
of the maximum allowable intake flow that EPA proposed. EPA is 
considering the industry approach and a modification where an applicant 
would not have to assess potential entrainment impact if an intake 
structure withdrew a proportion of waterbody flow or volume 
significantly less than any final limitations for proportional flow, 
such as those at proposed 40 CFR 125.84. (EPA proposed that a facility 
withdraw no more than 5% of the mean annual flow or 25% of the 7Q10 
flow of a freshwater river or stream. For tidal rivers and estuaries, a 
facility could withdraw no more than 1% of the volume of the water 
column within the area centered about the opening of the intake with a 
diameter defined by the distance of one tidal excursion at the mean low 
water level.) EPA invites comment on potential screening levels for 
entrainment assessment. EPA is currently considering screening levels 
between 1% and 50% of any final proportional flow limitations, but 
invites comment on other levels as well. To address concerns that a 
very large facility on a large waterbody might entrain a large number 
of aquatic organisms, EPA also invites comment on a possible screening 
level for entrainment assessment based on the total intake flow at a 
facility. EPA is currently considering a range of 2 MGD (equivalent to 
EPA's proposed regulatory threshold) to 15 or 25 MGD, but invites 
comments on other levels. Section A above provides perspective on the 
percentage of facilities and flows that would require entrainment 
assessment at these thresholds. EPA has not yet analyzed industry's 
suggested screening threshold for entrainment assessment in lakes and 
reservoirs. The Agency invites comment on whether this is a reasonable 
threshold, and on other potential screening thresholds for lakes and 
reservoirs, or other waterbodies such as estuaries, tidal rivers and 
oceans.
     Under the industry approach, a proposed facility would not 
be assessed for entrainment unless it exceeded both a flow-based 
threshold and a population-based threshold (see previous bullet for 
discussion of the flow-based threshold). The population-based threshold 
would be designed to ensure that entrainment losses of equivalent 
adults would be less than a value that, in industry's view, has 
generally proven to be highly conservative or not inconsistent with 
fishery management plans. Industry states that some interested parties 
have suggested values equal to or less than 1% of the population of any 
commercially or recreationally important species and equal to or less 
than 5% of the population of non-harvested species. EPA requests 
comment on a modification that would require that entrainment should be 
assessed if it exceeds either a flow-based threshold, or a threshold 
based on equivalent-adult losses. EPA is also considering a 
modification that would require entrainment assessment above a 
threshold as low as 1% or as high as 50% of those organisms that occupy 
or pass-through the area from which source water moves into the intake. 
Alternatively, EPA might use concepts from the 1977 Draft Guidance for 
Evaluating the Adverse Impact of Cooling Water Intake Structures on the 
Aquatic Environment to focus entrainment assessment on potential impact 
on organisms in the ``primary study area,'' ``the secondary study 
area,'' or the ``zone of potential involvement.'' (These are areas 
where biota may be drawn into or affected by a cooling water intake 
structure.) EPA requests comment on the use of any of these definitions 
from its 1977 Guidance to define areas for which entrainment 
assessments would be required. EPA is currently considering a range of 
1% to 5% as a quantitative screening requirement in conjunction with 
any of these definitions, but invites comment on percentages outside of 
this range.
     Under the industry approach, if a Track 2 site-specific 
study showed an appreciable risk of adverse environmental impact, the 
applicant would have to identify all reasonably available technologies 
that would be feasible at the site. It would then perform the cost-
benefit analysis to determine which technology would ``maximize net 
benefits.'' The industry approach does not define how to maximize net 
benefits. However, industry comments suggest an approach that would 
involve determining applicable fish protection alternatives, assessing 
their incremental monetary costs and benefits to the extent feasible, 
major uncertainties in the analysis, and whether relevant costs or 
benefits have not been quantified. The applicant would then develop a 
BTA choice that is likely to maximize net benefits in that particular 
case. EPA invites comment on whether it would be appropriate to ensure 
that such site-specific cost-benefit studies include assessment of the 
following categories of data and ecological risks and benefits: numbers 
of individuals of various species and age-classes impinged and 
entrained for each technology alternative; commercial or recreational 
fishing opportunities enhanced or foregone; and/or other categories of 
benefits such as impact on other recreational opportunities (e.g., 
birding related to bird populations that are in part dependent on fish 
populations). EPA also invites comment on whether such studies should 
be based upon a single-year or multiple-year baseline. Finally, EPA is 
considering other economic analyses that could support a Track 2 
decision on appropriate technologies and/or performance standards. The 
Agency invites comment on whether it should use the ``wholly 
disproportionate'' cost-benefit test that has been previously used in 
many case-by-case section 316(b) decisions or one of the economic 
affordability tests described at proposal.

[[Page 28872]]

2. Documentation for the Assertion That Appropriately Applied Existing 
Technologies Can Reduce Fish Losses to Levels Reasonably Consistent 
With Wet Cooling Towers With Low-Velocity
    UWAG asserts that, at certain sites and under certain conditions, 
technologies such as wedge wire screens, fine mesh traveling screens 
with a fish return system, and Gunderbooms can be used at intakes with 
a capacity commensurate with once-through cooling and can reduce losses 
from entrainment and impingement to levels reasonably consistent with 
those of an intake structure with a capacity commensurate with use of a 
wet, closed-cycle cooling system and an intake velocity of no more than 
0.5 feet per second. In the document, ``Existing Technologies Which, 
Appropriately Applied, Can Reduce Fish Losses to Levels Reasonably 
Consistent with Wet Cooling Towers,'' April 18, 2001 (see #2-044A in 
the Docket), UWAG provides data that it asserts supports this position. 
UWAG also discusses this assertion in the document ``Reasonably 
Consistent,'' April 20, 2001 (see #2-044B in the Docket). These data 
and information are intended to support the alternative industry 
approach discussed in section H.1. of this Notice. EPA is evaluating 
the UWAG assertions and will consider any public comments on them.
3. Financial Issues That Necessitate Minimal or No Pre-Permit 
Biological Study
    As discussed in the document, ``Financial Ramifications of Pre-
operational Biological Monitoring Requirements'' (see #2-045 in 
Docket), UWAG asserts that delays associated with EPA's proposed 
requirements for pre-operational biological monitoring could have 
significant costs for the facilities required to conduct such 
monitoring. These costs would include the replacement value for 
electricity not generated because new facilities did not enter the 
market as quickly as they might have without the requirement. UWAG also 
asserts that these delays will increase the costs of financing for a 
new facility because the lender will be taking a greater risk over a 
longer term for a facility that does not yet have a permit. EPA 
solicits comment on specifically how much the cost of financing would 
increase for a new facility based on such delay and uncertainty. UWAG 
further asserts that the pre-operational biological monitoring 
requirement will create an incentive to build plants that are not 
subject to this requirement and its associated delays and produce more 
expensive electricity. These data and information are intended to 
support the alternative industry approach discussed in Section H.1. of 
this Notice. EPA is evaluating and invites public comment on the UWAG 
assertions. EPA is very interested in evaluating any impact these 
regulations may have on new facility construction. EPA invites the 
public to provide detailed information on the extent to which a year-
long, pre-operational biological monitoring program might lengthen the 
timeframes for new facility development beyond those normally 
associated with, for example, site selection, financing, construction, 
local permitting, and environmental assessments conducted under other 
federal, state or local requirements.

III. General Solicitation of Comment

    EPA encourages public participation in this rulemaking and requests 
comments on this notice of data availability supporting the proposed 
rule for cooling water intake structures for new facilities.
    EPA invites all parties to coordinate their data collection 
activities with the Agency to facilitate mutually beneficial and cost-
effective data submissions. Please refer to the FOR FURTHER INFORMATION 
section at the beginning of this preamble for technical contacts at 
EPA.
    To ensure that EPA can properly respond to comments, the Agency 
prefers that commenters cite, where possible, the paragraph(s) or 
sections in the document or supporting documents to which each comment 
refers. Please submit an original and two copies of your comments and 
enclosures (including references).

    Dated: May 16, 2001.
Diane C. Regas,
Acting Assistant Administrator, Office of Water.
[FR Doc. 01-13187 Filed 5-24-01; 8:45 am]
BILLING CODE 6560-50-P