[Federal Register Volume 66, Number 243 (Tuesday, December 18, 2001)]
[Rules and Regulations]
[Pages 65256-65345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28968]



[[Page 65255]]

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Part II





Environmental Protection Agency





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40 CFR Parts 9, 122, et al.



National Pollutant Discharge Elimination System: Regulations Addressing 
Cooling Water Intake Structures for New Facilities; Final Rule

  Federal Register / Vol. 66, No. 243 / Tuesday, December 18, 2001 / 
Rules and Regulations  

[[Page 65256]]


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ENVIRONMENTAL PROTECTION AGENCY

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

[FRL-7105-4]
RIN 2040-AC34


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today's final rule implements section 316(b) of the Clean 
Water Act (CWA) for new facilities that use water withdrawn from 
rivers, streams, lakes, reservoirs, estuaries, oceans or other waters 
of the United States (U.S.) for cooling purposes. The final rule 
establishes national technology-based performance requirements 
applicable to the location, design, construction, and capacity of 
cooling water intake structures at new facilities. The national 
requirements establish the best technology available, based on a two-
track approach, for minimizing adverse environmental impact associated 
with the use of these structures.
    Based on size, Track I establishes national intake capacity and 
velocity requirements as well as location- and capacity-based 
requirements to reduce intake flow below certain proportions of certain 
waterbodies (referred to as ``proportional-flow requirements''). It 
also requires the permit applicant to select and implement design and 
construction technologies under certain conditions to minimize 
impingement mortality and entrainment. Track II allows permit 
applicants to conduct site-specific studies to demonstrate to the 
Director that alternatives to the Track I requirements will reduce 
impingement mortality and entrainment for all life stages of fish and 
shellfish to a level of reduction comparable to the level the facility 
would achieve at the cooling water intake structure if it met the Track 
I requirements.
    EPA expects that this final regulation will reduce impingement and 
entrainment at new facilities. Today's final rule establishes 
requirements that will help preserve aquatic organisms and the 
ecosystems they inhabit in waters used by cooling water intake 
structures at new facilities. EPA has considered the potential benefits 
of the rule; these include a decrease in expected mortality or injury 
to aquatic organisms that would otherwise be subject to entrainment 
into cooling water systems or impingement against screens or other 
devices at the entrance of cooling water intake structures. Benefits 
may also accrue at population, community, or ecosystem levels of 
ecological structures. The preamble discusses these benefits to the 
extent possible in qualitative terms.

DATES: This regulation shall become effective January 17, 2002. For 
judicial review purposes, this final rule is promulgated as of 1:00 
p.m. Eastern Standard Time (EST) on January 2, 2002, as provided in 40 
CFR 23.2.

ADDRESSES: The public record for this rule is established under docket 
number W-00-03. Copies of comments received, EPA responses, and all 
other supporting documents (except for information claimed as 
Confidential Business Information (CBI)) are available for review in 
the EPA Water Docket, East Tower Basement, Room EB-57, 401 M Street, 
SW., Washington, DC 20460. The record is available for inspection from 
9:00 a.m. to 4:00 p.m. Monday through Friday, excluding legal holidays. 
For access to the docket materials, please call (202) 260-3027 to 
schedule an appointment.

FOR FURTHER INFORMATION CONTACT: For additional technical information 
contact Deborah G. Nagle at (202) 260-2656. For additional biological 
information contact Debbi Hart at (202) 260-0905. For additional 
economic information contact Ghulam Ali at (202) 260-9886. The e-mail 
address for the above contacts is [email protected].

SUPPLEMENTARY INFORMATION:

What Entities Are Regulated by This Action?

    This final rule applies to new greenfield (defined by example in 
section I. of this preamble) and stand alone facilities that use 
cooling water intake structures to withdraw water from waters of the 
U.S. and that have or require a National Pollutant Discharge 
Elimination System (NPDES) permit issued under section 402 of the CWA. 
New facilities subject to this regulation include those that have a 
design intake flow of greater than two (2) million gallons per day 
(MGD) and that use at least twenty-five (25) percent of water withdrawn 
for cooling purposes. Generally, facilities that meet these criteria 
fall into two major groups: new steam electric generating facilities 
and new manufacturing facilities. If a new facility meets these 
conditions, it is subject to today's final regulations. If a new 
facility has or requires an NPDES permit but does not meet the two MGD 
intake flow threshold or uses less than 25 percent of its water for 
cooling water purposes, the permit authority will implement section 
316(b) on a case-by-case basis, using best professional judgment. This 
final rule defines the term ``cooling water intake structure'' to mean 
the total physical structure and any associated constructed waterways 
used to withdraw water from a water of the U.S. The cooling water 
intake structure extends from the point at which water is withdrawn 
from the surface water source up to and including the intake pumps. 
Today's rule does not apply to existing facilities including major 
modifications to existing facilities that would be ``new sources'' in 
40 CFR 122.29 as that term is used in the effluent guidelines and 
standards program. Although EPA has not finished examining the costs of 
technology options at existing facilities, the Agency anticipates that 
existing facilities would have less flexibility in designing and 
locating their cooling water intake structures than new facilities and 
that existing facilities might incur higher compliance costs than new 
facilities. For example, existing facilities might need to upgrade or 
modify existing intake structures and cooling water systems to meet 
requirements of the type contained in today's rule, which might impose 
greater costs than use of the same technologies at a new facility. 
Retrofitting technologies at an existing facility might also require 
shutdown periods during which the facility would lose both production 
and revenues, and certain retrofits could decrease the thermal 
efficiency of an electric generating facility. Site limitations, such 
as lack of undeveloped space, might make certain technologies 
infeasible at existing facilities. Accordingly, EPA does not intend 
that today's rule or preamble serve as guidance for developing section 
316(b) requirements for existing facilities. Permit writers should 
continue to apply best professional judgment in making case-by-case 
section 316(b) determinations for existing facilities, based on 
existing guidance and other legal authorities. EPA will address 
existing facilities fully in Phase II and Phase III rulemakings.
    The following table lists the types of entities that EPA believes 
are potentially subject to this final rule. This table is not intended 
to be exhaustive; rather, it provides a guide for readers regarding 
entities likely to be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility is regulated by this action, you should carefully examine 
the applicability criteria at Sec. 125.81 of the rule. If you

[[Page 65257]]

have questions regarding the applicability of this action to a 
particular entity, consult one of the persons listed in the preceding 
FOR FURTHER INFORMATION CONTACT section.

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                                                                  Standard Industrial    North American Industry
               Category                 Examples of regulated     Classification (SIC)    Classification System
                                               entities                  Codes                (NAICS) Codes
----------------------------------------------------------------------------------------------------------------
Federal, State and Local Government..  Operators of steam       4911 and 493...........  221111, 221112, 221113,
                                        electric generating                               221119, 221121,
                                        point source                                      221122, 221111,
                                        dischargers that                                  221112, 221113,
                                        employ cooling water                              221119, 221121,
                                        intake structures.                                221122.
Industry.............................  Operators of industrial  See below..............  See below.
                                        point source
                                        dischargers that
                                        employ cooling water
                                        intake structures.
                                       Steam electric           4911 and 493...........  221111, 221112, 221113,
                                        generating.                                       221119, 221121,
                                                                                          221122, 221111,
                                                                                          221112, 221113,
                                                                                          221119, 221121,
                                                                                          221122.
                                       Agricultural production  0133...................  111991, 11193.
                                       Metal mining...........  1011...................  21221.
                                       Oil and gas extraction   1311, 1321.............  211111, 211112.
                                        (excluding offshore
                                        and coastal
                                        subcategories).
                                       Mining and quarrying of  1474...................  212391.
                                        nonmetallic minerals.
                                       Food and kindred         2046, 2061, 2062, 2063,  311221, 311311, 311312,
                                        products.                2075, 2085.              311313, 311222,
                                                                                          311225, 31214.
                                       Tobacco products.......  2141...................  312229, 31221.
                                       Textile mill products..  2211, 2261.............  31321.
                                       Lumber and wood          2415, 2421, 2436, 2493.  321912, 321113, 321918,
                                        products, except                                  321999, 321212,
                                        furniture.                                        321219.
                                       Paper and allied         2611, 2621, 2631, 2676,  3221, 322121, 32213,
                                        products.                2679.                    322121, 322122, 32213,
                                                                                          322291.
                                       Chemical and allied      28 (except 2822, 2835,   325 (except 325182,
                                        products.                2836, 2842, 2843,        32591, 32551, 32532).
                                                                 2844, 2861, 2895,
                                                                 2893, 2851, and 2879).
                                       Petroleum refining and   2911, 2999.............  32411, 324199.
                                        related industries.
                                       Rubber and               3011, 3069.............  326211, 31332, 326192,
                                        miscellaneous plastics                            326299.
                                        products.
                                       Stone, clay, glass, and  3241...................  32731.
                                        concrete products.
                                       Primary metal            3312, 3313, 3315, 3316,  324199, 331111, 331112,
                                        industries.              3317, 3334, 3339,        331492, 331222,
                                                                 3353, 3357.              332618, 331221, 22121,
                                                                                          331312, 331419,
                                                                                          331315, 331521,
                                                                                          331524, 331525.
                                       Fabricated metal         3421, 3499.............  332211, 337215, 332117,
                                        products, except                                  332439, 33251, 332919,
                                        machinery and                                     339914, 332999.
                                        transportation
                                        equipment.
                                       Industrial and           3523, 3531.............  333111, 332323, 332212,
                                        commercial machinery                              333922, 22651, 333923,
                                        and computer equipment.                           33312.
                                       Transportation           3724, 3743, 3764.......  336412, 333911, 33651,
                                        equipment.                                        336416.
                                       Measuring, analyzing,    3861...................  333315, 325992.
                                        and controlling
                                        instruments;
                                        photographic, medical,
                                        and optical goods;
                                        watches and clocks.
                                       Electric, gas, and       4911, 4931, 4939, 4961.  221111, 221112, 221113,
                                        sanitary services.                                221119, 221121,
                                                                                          221122, 22121, 22133.
                                       Educational services...  8221...................  61131.
                                       Engineering,             8731...................  54171.
                                        Accounting, Research,
                                        Management, and
                                        Related Services.
----------------------------------------------------------------------------------------------------------------

Supporting Documentation

    The final regulation is supported by two major documents:
    1. Economic Analysis of the Final Regulations Addressing Cooling 
Water Intake Structures for New Facilities (EPA-821-R-01-035), 
hereafter referred to as the Economic Analysis. This document presents 
the analysis of compliance costs, barrier to entry, and energy supply 
effects. In addition, the document provides an assessment of potential 
benefits.
    2. Technical Development Document for the Final Regulations 
Addressing Cooling Water Intake Structures for New Facilities (EPA-821-
R-01-036), hereafter referred to as the Technical Development Document. 
This document presents detailed information on the methods used to 
develop unit costs and describes the set of technologies that may be 
used to meet the rule's requirements.

How To Obtain Supporting Documents

    You can obtain the Economic Analysis and Technical Development 
Document from the Agency's 316(b) website (http://www.epa.gov/ost/316b). The documents are also available from the National Service 
Center for Environmental Publications, P.O. Box

[[Page 65258]]

42419, Cincinnati, OH 45242-2419; telephone (800) 490-9198 and the 
Water Resource Center , U.S. EPA, 1200 Pennsylvania Avenue, N.W. (RC 
4100), Washington D.C. 20460 (202) 260-2814.

Organization of This Document

I. Scope of This Rulemaking
    A. What Is a New Facility?
    B. What Is a Cooling Water Intake Structure?
    C. What Cooling Water Use and Design Intake Flow Thresholds 
Result in a New Facility Being Subject to This Final Rule?
    D. Does This Rule Apply to My Facility If It Does Not Have a 
Point Source Discharge Subject to an NPDES Permit?
    E. What Requirements Must I Meet Under the Final Rule?
II. Legal Authority, Purpose and Background of Today's Regulation
    A. Legal Authority
    B. Purpose of Today's Regulation
    C. Background
III. Environmental Impact Associated With Cooling Water Intake 
Structures
IV. Summary of the Most Significant Revisions to the Proposed Rule
    A. Data Updates
    B. Regulatory Approach
V. Basis for the Final Regulation
    A. Major Options Considered for the Final Rule
    B. Why EPA Is Establishing EPA's Preferred Two-Track Option as 
the Best Technology Available for Minimizing Adverse Environmental 
Impact?
    C. Why EPA Is Not Adopting Dry Cooling as the Best Technology 
Available for Minimizing Adverse Environmental Impact?
    D. Why EPA Is Not Accepting the Industry Two-Track Approach in 
Full
VI. Summary of Major Comments on the Proposed Rule and Notice of 
Data Availability (NODA)
    A. Scope/Applicability
    B. Environmental Impact Associated With Cooling Water Intake 
Structures
    C. Location
    D. Flow and Volume
    E. Velocity
    F. Dry Cooling
    G. Implementation-Baseline Biological Characterization
    H. Cost
    I. Benefits
    J. Engineering and Economic Analysis Limitations
    K. EPA Authority
    L. Restoration
VII. Implementation
    A. When Does the Rule Become Effective?
    B. What Information Must I Submit to the Director When I Apply 
for My New or Reissued NPDES Permit?
    C. How Will the Director Determine the Appropriate Cooling Water 
Intake Structure Requirements?
    D. What Will I Be Required to Monitor?
    E. How Will Compliance Be Determined?
    F. What Are the Respective Federal, State, and Tribal Roles?
    G. Are Permits for New Facilities Subject to Requirements Under 
Other Federal Statutes?
    H. Alternative Requirements
VIII. Economic Analysis
    A. Electric Generation Sector
    B. Manufacturing Sector
    C. Economic Impacts
    D. Cost and Economic Impacts of Other Alternatives
IX. Potential Benefits Associated With Reducing Impingement and 
Entrainment
X. Regulatory Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Unfunded Mandates Reform Act
    D. Regulatory Flexibility Act (RFA), as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
    E. Executive Order 13132: Federalism
    F. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    I. Executive Order 13158: Marine Protected Areas
    J. Executive Order 13211 (Energy Effects)
    K. National Technology Transfer and Advancement Act
    L. Plain Language Directive
    M. Congressional Review Act

I. Scope of This Rulemaking

    Today's final rule establishes technology-based performance 
requirements applicable to the location, design, construction, and 
capacity of cooling water intake structures at new facilities under 
section 316(b) of the Clean Water Act. The rule establishes the best 
technology available for minimizing adverse environmental impact 
associated with the use of these structures. Today's final rule also 
partially fulfills EPA's obligation to comply with a consent decree 
entered in the United States District Court, Southern District of New 
York in Riverkeeper Inc., et al. v. Whitman, No. 93 Civ. 0314 (AGS). 
(For a more detailed discussion of the consent decree, see II.C.2).
    This final rule applies to new greenfield or stand alone 
facilities: (1) that use a newly constructed cooling water intake 
structure, or a modified existing cooling water intake structure whose 
design capacity is increased that withdraws water from waters of the 
U.S.; and (2) that has or is required to have a National Pollutant 
Discharge Elimination System (NPDES) permit issued under section 402 of 
the CWA. Specifically, the rule applies to you if you are the owner or 
operator of a facility that meets all of the following criteria:
     Your greenfield or stand alone facility meets the 
definition of new facility specified in Sec. 125.83 of this rule;
     Your new facility uses a newly constructed or modified 
existing cooling water intake structure or structures, or your facility 
obtains cooling water by any sort of contract or arrangement with an 
independent supplier who has a cooling water intake structure;
     Your new facility's cooling water intake structure(s) 
withdraw(s) water from waters of the U.S. and at least twenty-five (25) 
percent of the water withdrawn is used for contact or noncontact 
cooling purposes;
     Your new facility has a design intake flow of greater than 
two (2) million gallons per day (MGD); and
     Your new facility has an NPDES permit or is required to 
obtain one.

    If a new facility meets these conditions, it is subject to today's 
final regulations. If a new facility has or requires an NPDES permit 
but does not meet the two MGD intake flow threshold or the twenty-five 
percent cooling water use threshold, it is not subject to permit 
conditions based on today's rule; rather, it is subject to permit 
conditions implementing section 316(b) of the CWA set by the permit 
director on a case-by-case basis, using best professional judgment.

A. What Is a New Facility?

    A new facility subject to this regulation is any facility that 
meets the definition of ``new source'' or ``new discharger'' in 40 CFR 
122.2 and 122.29(b)(1), (2), and (4); commences construction after 
January 17, 2002; and uses either a newly constructed cooling water 
intake structure, or an existing cooling water intake structure whose 
design capacity is increased; or obtains cooling water by any sort of 
contract or arrangement with an independent supplier who has a cooling 
water intake structure. The term ``commence construction'' is defined 
in 40 CFR 122.29(b)(4).
    As stated above, this rule applies to only ``greenfield'' and 
``stand-alone'' facilities. A greenfield facility is a facility that is 
constructed at a site at which no other source is located, or that 
totally replaces the process or production equipment at an existing 
facility (see 40 CFR 122.29(b)(1)(i) and (ii)). A stand-alone facility 
is a new, separate facility that is constructed on property where an 
existing facility is located and whose processes are substantially 
independent of the existing facility at the same site (see 40 CFR 
122.29(b)(1)(iii)). An example of

[[Page 65259]]

total replacement is as follows: The power plant or manufacturer 
demolishes the power plant or manufacturing facility and builds a new 
plant or facility in its place. The pumps of the existing cooling water 
intake structure are replaced with new pumps that increase design 
capacity to accommodate additional cooling water needs, but the intake 
pipe is left in place. In this situation, the facility would be a new 
facility. Modifications to an existing cooling water intake structure 
that do not serve the cooling water needs of a greenfield or stand-
alone facility in 40 CFR 122.2 and 122.29(b)(1), (2), and (4) (i.e., a 
facility that meets the definition of new source or new discharger and 
commences construction after the effective date of the rule) do not 
constitute a new facility subject to this rule. Thus, the definition of 
new facility under this rule is narrower than the definition of new 
source under section 306 of the CWA.
    The definition of new facility also requires that the greenfield or 
stand-alone facility use ``a newly constructed cooling water intake 
structure or an existing cooling water intake structure whose design 
capacity is increased to accommodate the intake of additional cooling 
water.'' This means a facility that would otherwise be a ``new 
facility'' would not be treated as a new facility under this rule if it 
withdraws water from an existing cooling water intake structure whose 
design capacity has not been increased to accommodate the intake of 
additional cooling water. Routine maintenance and repair, such as 
replacement of pumps that does not increase the capacity of the 
structure, cleaning in response to biofouling, and repair or 
replacement of moving parts at a cooling water intake that is part of a 
greenfield or stand-alone facility, and that occur simply for operation 
and maintenance purposes, would not be a modification of that intake 
structure. One way to distinguish whether replacement of the pipes or 
the pumps is for maintenance and repair purposes or whether it is to 
accommodate construction of a new facility is to determine whether the 
replacement increases the original design capacity. Today's rule 
specifies that changes to a cooling water intake structure are 
considered modifications for purposes of this rule only if such changes 
result in an increase in design capacity. Thus, routine maintenance or 
repair of the cooling water intake structure, including the pumps, that 
does not result in an increase in design capacity does not modify a 
cooling water intake structure. However, if a change is made to the 
cooling water intake structure, including the pumps, that increases 
design capacity to any extent, then the cooling water intake structure 
has been modified; use of this structure by a greenfield or stand-alone 
facility would make the facility a new facility subject to this rule.

B. What Is a Cooling Water Intake Structure?

    For the purposes of this rule a ``cooling water intake structure'' 
is defined as the total physical structure and any associated 
constructed waterways used to withdraw water from waters of the U.S. 
The cooling water intake structure extends from the point at which 
water is withdrawn from waters of the U.S. up to and including the 
intake pumps. EPA has defined ``cooling water'' as water used for 
contact or noncontact cooling, including water used for equipment 
cooling, evaporative cooling tower makeup, and dilution of effluent 
heat content. The Agency has specified that the intended use of cooling 
water is to absorb waste heat from production processes or auxiliary 
operations. In addition, for the final rule EPA has amended the 
definition of cooling water to ensure that the rule does not discourage 
the reuse of cooling water as process water. As such, heated cooling 
water that is subsequently used in a manufacturing process is 
considered process water for the purposes of calculating the percentage 
of a new facility's intake flow that is used for cooling purposes.

C. What Cooling Water Use and Design Intake Flow Thresholds Result in a 
New Facility Being Subject to This Final Rule?

    This rule applies to new facilities that (1) withdraw cooling water 
from waters of the U.S. and use at least twenty-five (25) percent of 
the water withdrawn for cooling purposes and (2) 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. See 40 CFR 
125.81 of this rule. The percentage of total water withdrawn that is 
used for cooling purposes is to be measured on an average monthly basis 
over a period of one year. See 40 CFR 125.81(c) of this rule. A new 
facility meets the 25 percent cooling water use threshold if, on the 
basis of the new facility's design when measured over a period of one 
year, any monthly average percentage of cooling water withdrawn is 
expected to equal or exceed 25 percent of the total water withdrawn. 
Waters of the U.S. include the broad range of surface waters that meet 
the regulatory definition at 40 CFR 122.2, which can include lakes, 
ponds, reservoirs, nontidal rivers or streams, tidal rivers, estuaries, 
fjords, oceans, bays, and coves.
    Some commenters questioned whether the discussion of cooling ponds 
in the preamble to the proposal (65 FR 49067, col. 2) meant that EPA 
considers cooling ponds to be ``waters of the United States.'' EPA did 
not intend that discussion to change the regulatory status of cooling 
ponds. Cooling ponds are neither categorically included nor 
categorically excluded from the definition of ``waters of the United 
States'' at 40 CFR 122.2. EPA interprets 40 CFR 122.2 to give permit 
writers discretion to regulate cooling ponds as ``waters of the United 
States'' where cooling ponds meet the definition of ``waters of the 
United States.'' The determination whether a particular cooling pond is 
or is not ``waters of the United States'' is to be made by the permit 
writer on a case-by-case basis, informed by the principles enunciated 
in Solid Waste Agency of Northern Cook County v. US Army Corps of 
Engineers, 531 U.S. 159 (2001).

D. Does This Rule Apply to My Facility If It Does Not Have a Point 
Source Discharge Subject to an NPDES Permit?

    Today's final rule applies only to new facilities as defined in 
Sec. 125.83 that have an NPDES permit or are required to obtain one 
because they discharge or might discharge pollutants, including storm 
water, from a point source to waters of the United States. Requirements 
for minimizing the adverse environmental impact of cooling water intake 
structures will continue to be applied through NPDES permits.

E. What Requirements Must I Meet Under the Final Rule?

    Today's final rule establishes a two-track approach for regulating 
cooling water intake structures at new facilities. Track I establishes 
uniform requirements based on facility cooling water intake capacity. 
Track II provides dischargers with the opportunity to establish that 
alternative requirements will achieve comparable performance. The 
regulated entity has the opportunity to choose which track it will 
follow. The Track I and Track II requirements are summarized below.
    Under Track I, new facilities with a design intake flow equal to or 
greater than 10 MGD, must meet the following requirements:
    (1) Cooling water intake flow must be at a level commensurate with 
that achievable with a closed-cycle,

[[Page 65260]]

recirculating cooling system; (40 CFR 125.84(b)(1))
    (2) Through-screen intake velocity must be less than or equal to 
0.5 feet per second; (40 CFR 125.84(b)(2))
    (3) Location- and capacity-based limits on proportional intake flow 
must be met (for fresh water rivers or streams, intake flow must be 
less than or equal to 5 percent of the mean annual flow; for lakes or 
reservoirs, intake flow may not disrupt natural thermal stratification 
or turnover pattern (where present) of the source water except in cases 
where the disruption is determined to be beneficial to the management 
of fisheries for fish and shellfish by any fishery management 
agency(ies); for estuaries or tidal rivers, intake flow must be less 
than or equal to 1 percent of the tidal excursion volume; for oceans, 
there are no proportional flow requirements); (40 CFR 125.84(b)(3)) and
    (4) Design and construction technologies for minimizing impingement 
mortality and entrainment must be selected and implemented if certain 
conditions exist where the cooling water intake structure is located. 
(40 CFR 125.84(b)(4) and (5))
    Under Track I, new facilities with a design intake flow equal to or 
greater than 2 MGD, but less than 10 MGD, must meet the following 
requirements:
    (1) Through-screen intake velocity must be less than or equal to 
0.5 feet per second; (40 CFR 125.84(c)(1))
    (2) Location- and capacity-based limits on proportional intake flow 
must be met (for fresh water rivers or streams, intake flow must be 
less than or equal to 5 percent of the mean annual flow; for lakes or 
reservoirs, intake flow may not disrupt natural thermal stratification 
or turnover pattern (where present) of the source water except in cases 
where the disruption is determined to be beneficial to the management 
of fisheries for fish and shellfish by any fishery management 
agency(ies); for estuaries or tidal rivers, intake flow must be less 
than or equal to 1 percent of the tidal excursion volume; for oceans, 
there are no proportional flow requirements); (40 CFR 125.84(c)(2)) and
    (3) Design and construction technologies for minimizing impingement 
mortality must be selected if certain conditions exist where the 
cooling water intake structure is located 125.84(c)(3); and design and 
construction technologies for minimizing entrainment must be selected 
and implemented. (40 CFR 125.84(c)(4))
    Under Track II, new facilities must meet the following 
requirements:
    (1) Employ technologies that will reduce the level of adverse 
environmental impact to a comparable level to that which would be 
achieved under the Track I requirements (as demonstrated in a 
Comprehensive Demonstration Study); (40 CFR 125.84(d)(1))
    (2) The same proportional intake flow limitations as in Track I, 
based on the intake source water, must be met; (40 CFR 125.84(d)(2)).
    Section IV.B and V. of this preamble provides a more detailed 
discussion of the requirements included under this two-track approach. 
The two-track approach provides new facilities with a well-defined set 
of requirements that constitute best technology available (BTA) for 
minimizing adverse environmental impact and can be implemented 
relatively quickly. This approach also provides flexibility to 
operators who believe alternative or emerging technologies would be 
just as effective at reducing impingement and entrainment.

II. Legal Authority, Purpose and Background of Today's Regulation

A. Legal Authority

    Today's final rule is issued under the authority of sections 101, 
301, 304, 306, 308, 316, 401, 402, 501, and 510 of the Clean Water Act 
(CWA), 33 U.S.C. 1251, 1311, 1314, 1316, 1318, 1326, 1341, 1342, 1361, 
and 1370. This rule partially fulfills the obligations of the U.S. 
Environmental Protection Agency (EPA) under a consent decree in 
Riverkeeper Inc., et al. v. Whitman, United States District Court, 
Southern District of New York, No. 93 Civ. 0314 (AGS).

B. Purpose of Today's Regulation

    Section 316(b) of the CWA provides that any standard established 
pursuant to section 301 or 306 of the CWA and applicable to a point 
source must require that the location, design, construction, and 
capacity of cooling water intake structures reflect the best technology 
available (BTA) for minimizing adverse environmental impact. Today's 
final rule defines a cooling water intake structure as the total 
physical structure, including the pumps, and any associated constructed 
waterways used to withdraw water from waters of the U.S. Cooling water 
absorbs waste heat from processes employed or from auxiliary operations 
on a facility's premises. Single cooling water intake structures might 
have multiple intake bays. Today's final rule establishes requirements 
applicable to the location, design, construction, and capacity of 
cooling water intake structures at new facilities that withdraw at 
least two (2) million gallons per day (MGD) and use at least twenty-
five (25) percent of the water they withdraw for cooling purposes. 
Today's final rule establishes best technology available for minimizing 
adverse environmental impact associated with the intake of water from 
waters of the U.S. at these structures. See part III for further 
discussion of the environmental impact associated with cooling water 
intake structures.

C. Background

1. The Clean Water Act
    The Federal Water Pollution Control Act, also known as the Clean 
Water Act (CWA), 33 U.S.C. 1251 et seq., seeks to ``restore and 
maintain the chemical, physical, and biological integrity of the 
nation's waters.'' 33 U.S.C. 1251(a). The CWA establishes a 
comprehensive regulatory program, key elements of which are (1) a 
prohibition on the discharge of pollutants from point sources to waters 
of the U.S., except as authorized by the statute; (2) authority for EPA 
or authorized States or Tribes to issue National Pollutant Discharge 
Elimination System (NPDES) permits that regulate the discharge of 
pollutants; and (3) requirements for EPA to develop effluent limitation 
guidelines and standards and for States to develop water quality 
standards that are the basis for the limitations required in NPDES 
permits.
    Today's final rule implements section 316(b) of the CWA as it 
applies to ``new facilities'' as defined in this rule. 316(b) addresses 
the adverse environmental impact caused by the intake of cooling water, 
not discharges into water. Despite this special focus, the requirements 
of section 316(b) are closely linked to several of the core elements of 
the NPDES permit program established under section 402 of the CWA to 
control discharges of pollutants into navigable waters. For example, 
section 316(b) applies to facilities that withdraw water from the 
waters of the United States for cooling through a cooling water intake 
structure and are point sources subject to an NPDES permit. Conditions 
implementing section 316(b) are included in NPDES permits and will 
continue to be included in NPDES permits under this final rule.
    Section 301 of the CWA prohibits the discharge of any pollutant by 
any person, except in compliance with specified statutory requirements. 
These requirements include compliance with technology-based effluent 
limitation guidelines and new source performance standards, water 
quality standards,

[[Page 65261]]

NPDES permit requirements, and certain other requirements.
    Section 402 of the CWA provides authority for EPA or an authorized 
State or Tribe to issue an NPDES permit to any person discharging any 
pollutant or combination of pollutants from a point source into waters 
of the U.S. Forty-four States and one U.S. territory are authorized 
under section 402(b) to administer the NPDES permitting program. NPDES 
permits restrict the types and amounts of pollutants, including heat, 
that may be discharged from various industrial, commercial, and other 
sources of wastewater. These permits control the discharge of 
pollutants primarily by requiring dischargers to meet effluent 
limitations and other permit conditions. Effluent limitations may be 
based on promulgated federal effluent limitation guidelines, new source 
performance standards, or the best professional judgment of the permit 
writer. Limitations based on these guidelines, standards, or best 
professional judgment are known as technology-based effluent limits. 
Where technology-based effluent limits are inadequate to ensure 
compliance with water quality standards applicable to the receiving 
water, more stringent effluent limits based on applicable water quality 
standards are required. NPDES permits also routinely include monitoring 
and reporting requirements, standard conditions, and special 
conditions.
    Sections 301, 304, and 306 of the CWA require that EPA develop 
technology-based effluent limitation guidelines and new source 
performance standards that are used as the basis for technology-based 
minimum discharge requirements in wastewater discharge permits. EPA 
issues these effluent limitation guidelines and standards for 
categories of industrial dischargers based on the pollutants of concern 
discharged by the industry, the degree of control that can be attained 
using various levels of pollution control technology, consideration of 
various economic tests appropriate to each level of control, and other 
factors identified in sections 304 and 306 of the CWA (such as non-
water quality environmental impacts including energy impacts). EPA has 
promulgated regulations setting effluent limitation guidelines and 
standards under sections 301, 304, and 306 of the CWA for more than 50 
industries. See 40 CFR parts 405 through 471. Among these, EPA has 
established effluent limitation guidelines that apply to most of the 
industry categories that use cooling water intake structures (e.g., 
steam electric power generation, iron and steel manufacturing, pulp and 
paper manufacturing, petroleum refining, chemical manufacturing).
    Section 306 of the CWA requires that EPA establish discharge 
standards for new sources. For purposes of section 306, new sources 
include any source that commenced construction after the promulgation 
of applicable new source performance standards, or after proposal of 
applicable standards of performance if the standards are promulgated in 
accordance with section 306 within 120 days of proposal. CWA section 
306; 40 CFR 122.2. New source performance standards are similar to the 
technology-based limitations established for existing sources, except 
that new source performance standards are based on the best available 
demonstrated technology instead of the best available technology 
economically achievable. New facilities have the opportunity to install 
the best and most efficient production processes and wastewater 
treatment technologies. Therefore, Congress directed EPA to consider 
the best demonstrated process changes, in-plant controls, and end-of-
process control and treatment technologies that reduce pollution to the 
maximum extent feasible. In addition, in establishing new source 
performance standards, EPA is required to take into consideration the 
cost of achieving the effluent reduction and any non-water quality 
environmental impacts and energy requirements. As stated above, a ``new 
source'' under CWA section 306 applies to a broader set of facilities 
than the group of facilities subject to this rule.
2. Consent Decree
    Today's final rule partially fulfills EPA's obligation to comply 
with an amended Consent Decree entered in the United States District 
Court, Southern District of New York, in Riverkeeper Inc., et al. v. 
Whitman, No. 93 Civ 0314 (AGS), a case brought against EPA by a 
coalition of individuals and environmental groups. The consent decree 
as entered on October 10, 1995, provided that EPA propose regulations 
implementing section 316(b) by July 2, 1999, and take final action with 
respect to those regulation by August 13, 2001. Under subsequent orders 
and an amended consent decree, EPA has divided the rulemaking into 
three phases and is working under new deadlines. In addition to taking 
final action on this rule governing new facilities by November 9, 2001, 
EPA must propose regulations for, at a minimum, existing power plants 
that use large volumes of cooling water by February 28, 2002, and take 
final action 18 months later. EPA must propose regulations for, at a 
minimum, smaller-flow power plants and factories in four industrial 
sectors (pulp and paper making, petroleum and coal products 
manufacturing, chemical and allied manufacturing, and primary metal 
manufacturing) by June 15, 2003.
3. What Prior EPA Rulemakings Addressed Cooling Water Intake 
Structures?
    In April 1976 EPA published a rule under section 316(b) that 
addressed cooling water intake structures. 41 FR 17387 (April 26, 
1976), proposed at 38 FR 34410 (December 13, 1973). The rule added a 
new Sec. 401.14 to 40 CFR Chapter I that reiterated the requirements of 
CWA section 316(b). It also added a new part 402, which included three 
sections: (1) Sec. 402.10 (Applicability), (2) Sec. 402.11 (Specialized 
definitions), and (3) Sec. 402.12 (Best technology available for 
cooling water intake structures). Section 402.10 stated that the 
provisions of part 402 applied to ``cooling water intake structures for 
point sources for which effluent limitations are established pursuant 
to section 301 or standards of performance are established pursuant to 
section 306 of the Act.'' Section 402.11 defined the terms ``cooling 
water intake structure,'' ``location,'' ``design,'' ``construction,'' 
``capacity,'' and ``Development Document.'' Section 402.12 included the 
following language:

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

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

[[Page 65262]]

4. How Is Section 316(b) Being Implemented Now?
    Since the Fourth Circuit remanded EPA's section 316(b) regulations 
in 1977, NPDES permit authorities have made decisions implementing 
section 316(b) on a case-by-case, site-specific basis. EPA published 
draft guidance addressing section 316(b) implementation in 1977. See 
Draft Guidance for Evaluating the Adverse Impact of Cooling Water 
Intake Structures on the Aquatic Environment: Section 316(b) P.L. 92-
500 (U.S. EPA, 1977). This draft guidance describes the studies 
recommended for evaluating the impact of cooling water intake 
structures on the aquatic environment and recommends a basis for 
determining the best technology available for minimizing adverse 
environmental impact. The 1977 section 316(b) draft guidance states, 
``The environmental-intake interactions in question are highly site-
specific and the decision as to best technology available for intake 
design, location, construction, and capacity must be made on a case-by-
case basis.'' (Section 316(b) Draft Guidance, U.S. EPA, 1977, p. 4). 
This case-by-case approach also is consistent with the approach 
described in the 1976 development document referenced in the remanded 
regulation.
    The 1977 section 316(b) draft guidance suggests the general process 
for developing information needed to support section 316(b) decisions 
and presenting that information to the permitting authority. The 
process involves the development of a site-specific study of the 
environmental effects associated with each facility that uses one or 
more cooling water intake structures, as well as consideration of that 
study by the permitting authority in determining whether the facility 
must make any changes for minimizing adverse environmental impact. 
Where adverse environmental impact is present, the 1977 draft guidance 
suggests a stepwise approach that considers screening systems, size, 
location, capacity, and other factors.
    Although the draft guidance describes the information that should 
be developed, key factors that should be considered, and a process for 
supporting section 316(b) determinations, it does not establish 
national standards based on the best technology available for 
minimizing adverse environmental impact. Rather, the guidance leaves 
the decisions on the appropriate location, design, capacity, and 
construction of each facility to the permitting authority. Under this 
framework, the Director determines whether appropriate studies have 
been performed and whether a given facility has minimized adverse 
environmental impact. The Director's determinations of whether the 
appropriate studies have been performed or whether a given facility has 
minimized adverse environmental impact have often been subject to 
challenges that can take a long time to resolve and may impose 
significant resource demands on permitting agencies, the public, and 
the permit applicant.
5. Proposed New Facility Rule
    On August 10, 2000, EPA published proposed requirements for cooling 
water intake structures at new facilities to implement section 316(b) 
of the Clean Water Act. EPA proposed a tiered approach for reducing 
adverse environmental impact, with three degrees of stringency based on 
EPA's view of the relative vulnerability of each category of waterbody. 
EPA received numerous comments and data submissions concerning the 
proposal. See 65 FR 49060.
6. Notice of Data Availability
    On May 25, 2001, EPA published a Proposed Rule Notice of Data 
Availability (NODA). This notice presented a summary of the data EPA 
had received or collected since proposal, an assessment of the 
relevance of the data to EPA's analysis, some modified technology 
options suggested by commenters, and an alternative regulatory approach 
suggested by a trade group representing the utility industry as well as 
EPA's ideas about how it might modify this suggested approach. See 66 
FR 28853. On July 6, 2001, EPA reopened the comment period for certain 
documents and issues related to those documents. See 66 FR 35572.
7. Public Participation
    EPA has worked extensively with stakeholders from the industry, 
public interest groups, State agencies, and other Federal agencies in 
the development of this final rule. In addition to comments received 
during the comment periods of the original proposal, the NODA, and the 
reopened comment period for certain documents referenced in the NODA, 
EPA conducted two public meetings: in June 1998, in Arlington, Virginia 
(63 FR 27958) and in September, 1998, in Alexandria, Virginia (63 FR 
40683). In addition, in September 1998, EPA staff participated in a 
technical workshop sponsored by the Electric Power Research Institute 
on issues relating to the definition and assessment of adverse 
environmental impact. EPA staff have participated in other industry 
conferences, met upon request on numerous occasions with industry 
representatives, and met on a number of occasions with representatives 
of environmental groups. EPA has also met with stakeholders, attended 
conferences and held workshops concerning topics related to the 
existing source rulemaking effort.
    In the months leading up to publication of the proposed rule, EPA 
conducted a series of stakeholder meetings to review the draft 
regulatory framework for the proposed rule and invited stakeholders to 
provide their recommendations for the Agency's consideration. EPA 
managers have met with the Utility Water Act Group, Edison Electric 
Institute, representatives from an individual utility, and with 
representatives from the petroleum refining, pulp and paper, and iron 
and steel industries. EPA conducted meetings with environmental groups 
attended by representatives from between 3 and 15 organizations. EPA 
also met with the Association of State and Interstate Water Pollution 
Control Administrators (ASIWPCA) and, with the assistance of ASIWPCA, 
conducted a conference call in which representatives from 17 states or 
interstate organizations participated. After publication of the 
proposed rule, EPA continued to meet with stakeholders at their 
request. These meetings are summarized in the record.

III. Environmental Impact Associated With Cooling Water Intake 
Structures

    The proposed rule provided an overview of the magnitude and type of 
environmental impacts associated with cooling water intake structures, 
including several illustrative examples of documented environmental 
impacts at existing facilities (see 65 FR 49071 through 4). The 
majority of biological impacts associated with intake structures are 
closely linked to water withdrawals from the various waters in which 
the intakes are located.
    Based on preliminary estimates from a questionnaire sent to more 
than 1,200 existing power plants and factories, industrial facilities 
in the United States withdraw more than 279 billion gallons of cooling 
water a day from waters of the U.S. The withdrawal of such large 
quantities of cooling water affects vast quantities of aquatic 
organisms annually, including phytoplankton (tiny, free-floating 
photosynthetic organisms suspended in the water column), zooplankton 
(small aquatic animals, including fish eggs and larvae, that consume 
phytoplankton and other

[[Page 65263]]

zooplankton), fish, crustaceans, shellfish, and many other forms of 
aquatic life. Aquatic organisms drawn into cooling water intake 
structures are either impinged on components of the cooling water 
intake structure or entrained in the cooling water system itself.
    Impingement takes place when organisms are trapped against intake 
screens by the force of the water passing through the cooling water 
intake structure. Impingement can result in starvation and exhaustion 
(organisms are trapped against an intake screen or other barrier at the 
entrance to the cooling water intake structure), asphyxiation 
(organisms are pressed against an intake screen or other barrier at the 
entrance to the cooling water intake structure by velocity forces that 
prevent proper gill movement, or organisms are removed from the water 
for prolonged periods of time), and descaling (fish lose scales when 
removed from an intake screen by a wash system) and other physical 
harms.
    Entrainment occurs when organisms are drawn through the cooling 
water intake structure into the cooling system. Organisms that become 
entrained are normally relatively small benthic,1 
planktonic,2 and nektonic 3 organisms, including 
early life stages of fish and shellfish. Many of these small organisms 
serve as prey for larger organisms that are found higher on the food 
chain. As entrained organisms pass through a plant's cooling system 
they are subject to mechanical, thermal, and/or toxic stress. Sources 
of such stress include physical impacts in the pumps and condenser 
tubing, pressure changes caused by diversion of the cooling water into 
the plant or by the hydraulic effects of the condensers, sheer stress, 
thermal shock in the condenser and discharge tunnel, and chemical 
toxemia induced by antifouling agents such as chlorine. The mortality 
rate of entrained organisms varies by species and can be high under 
normal operating conditions.4 5 In the case of either 
impingement or entrainment, a substantial number of aquatic organisms 
are killed or subjected to significant harm.
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    \1\ Refers to bottom dwellers that are generally small and 
sessile (attached) such as mussels and anemones, but can include 
certain large motile (able to move) species such as crabs and 
shrimp. These species can be important members of the food chain.
    \2\ Refers to free-floating microscopic plants and animals, 
including the egg and larval stages of fish and invertebrates that 
have limited swimming abilities. Plankton are also an important 
source of food for other aquatic organisms and an essential 
component of the food chain in aquatic ecosystems.
    \3\ Refers to free-swimming organisms (e.g., fish, turtles, 
marine mammals) that move actively through the water column and 
against currents.
    \4\ Mayhew, D.A., L.D. Jensen, D.F. Hanson, and P.H. Muessig. 
2000. A comparative review of entrainment survival studies at power 
plants in estuarine environments. Environmental Science and Policy 
3:S295-S301.
    \5\ EPRI. 2000. Review of entrainment survival studies: 1970-
2000. Prepared by EA Engineering Science and Technology for the 
Electric Power Research Institute, Palo Alto, CA.
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    In addition to impingement and entrainment losses associated with 
the operation of the cooling water intake structure, EPA is concerned 
about the cumulative overall degradation of the aquatic environment as 
a consequence of (1) multiple intake structures operating in the same 
watershed or in the same or nearby reaches and (2) intakes located 
within or adjacent to an impaired waterbody. Historically, impacts 
related to cooling water intake structures have been evaluated on a 
facility-by-facility basis. The potential cumulative effects of 
multiple intakes located within a specific waterbody or along a coastal 
segment are largely unknown (one relevant example is provided for the 
Hudson River; see discussion below). There is concern, however, about 
the effects of multiple intakes on fishery stocks. As an example, the 
Atlantic States Marine Fisheries Commission has been requested by its 
member States to investigate the cumulative impacts on commercial 
fishery stocks, particularly overutilized stocks, attributable to 
cooling water intakes located in coastal regions of the Atlantic.\6\ 
Specifically, the study will focus on revising existing fishery 
management models so that they accurately consider and account for fish 
losses from intake structures.
---------------------------------------------------------------------------

    \6\ Personal communication, telephone conversation between D. 
Hart (EPA) and L. Kline (ASMFC), 2001.
---------------------------------------------------------------------------

    EPA analyses suggest that over 99 percent of the existing 
facilities with cooling water withdrawal that EPA surveyed in its 
section 316(b) survey of existing facilities are located within 2 miles 
of waters that are identified as impaired and listed by a State or 
Tribe as needing development of a total maximum daily load (TMDL) to 
restore the waterbody to its designated use. EPA notes that the top 
four leading causes of waterbody impairment (siltation, nutrients, 
bacteria, and metals) affect the aquatic life uses of a waterbody. The 
Agency believes that cooling water intakes potentially contribute 
additional stress to waters already showing aquatic life impairment 
from other sources such as industrial discharges and urban stormwater.
    EPA is also concerned about the potential impacts of cooling water 
intake structures located in or near habitat areas that support 
threatened, endangered, or other protected species. Although limited 
information is available on locations of threatened or endangered 
species that are vulnerable to impingement or entrainment, such impacts 
do occur. For example, EPA is aware that from 1976 to 1994, 
approximately 3,200 threatened or endangered sea turtles entered 
enclosed cooling water intake canals at the St. Lucie Nuclear 
Generating Plant in Florida.\7\ The plant developed a capture-and-
release program in response to these events. Most of the entrapped 
turtles were captured and released alive; however, approximately 160 
turtles did not survive. More recently, the number of sea turtles being 
drawn into the intake canal increased to approximately 600 per year; 
this increase led to a requirement for barrier nets to minimize 
entrapment.
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    \7\ Florida Power and Light Company. 1995. Assessment of the 
impacts at the St. Lucie Nuclear Generating Plant on sea turtle 
species found in the inshore waters of Florida.
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    Finally, in the proposed rule EPA expressed concern about 
environmental impacts associated with the construction of new cooling 
water intake structures. Three main factors contribute to the 
environmental impacts: displacement of biota and habitat resulting from 
the physical placement of a new cooling water intake structure in an 
aquatic environment, increased levels of turbidity in the aquatic 
environment, and effects on biota and habitat associated with aquatic 
disposal of materials excavated during construction. Existing programs, 
such as the CWA section 404 program, National Environmental Policy Act 
(NEPA) program, and programs under State/Tribal law, include 
requirements that address many of the environmental impact concerns 
associated with the construction of new intakes (see Section VII. G for 
applicable Federal statutes). EPA recognizes that impacts related to 
construction of cooling water intake structures can occur and defers to 
the regulatory authority provided within the above-listed programs to 
evaluate the potential for impacts and minimize their extent.
    In the proposed rule and NODA, EPA provided a number of examples of 
impingement and entrainment impacts that can be associated with 
existing facilities. It is important to note that these examples were 
not meant to predict effects at new facilities but rather to illustrate 
that the number of organisms impinged and entrained by a facility can 
be substantial. EPA also

[[Page 65264]]

notes that these are examples of the types of impacts that may occur 
without controls, that these examples are not representative of all 
sites whose facilities use cooling water intake structures, and that 
these examples may not reflect subsequent action that may have been 
taken to address these impacts on a site-specific basis. With these 
notes, EPA provides the following examples, illustrating that the 
impacts attributable to impingement and entrainment at individual 
facilities may result in appreciable losses of early life stages of 
fish and shellfish (e.g., three to four billion individuals annually 
\8\), serious reductions in forage species and recreational and 
commercial landings (e.g., 23 tons lost per year \9\), and extensive 
losses over relatively short intervals of time (e.g., one million fish 
lost during a three-week study period \10\).
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    \8\ EPA Region IV. 1979. Brunswick Nuclear Steam Electric 
Generating Plant of Carolina Power and Light Company, historical 
summary and review of section 316(b) issues.
    \9\ EPA Region IV. 1986. Findings and determination under 33 
U.S.C. 1326, In the Matter of Florida Power Corporation Crystal 
River Power Plant Units 1, 2, and 3, NPDES permit no. FL0000159.
    \10\ Thurber, N.J and D. J. Jude. 1985. Impingement losses at 
the D.C. Cook Nuclear Power Plant during 1975-1982 with a discussion 
of factors responsible and possible impact on local populations. 
Special report no. 115 of the Great Lakes Research Division, Great 
Lakes and Marine Waters Center, University of Michigan.
---------------------------------------------------------------------------

    Further, some studies estimating the impact of impingement and 
entrainment on populations of key commercial or recreational fish have 
predicted substantial declines in population size. This has lead to 
concerns that some populations may be altered beyond recovery. For 
example, a modeling effort evaluating the impact of entrainment 
mortality on a representative fish species in the Cape Fear estuarine 
system predicted a 15 to 35 percent reduction in the species 
population.\11\
---------------------------------------------------------------------------

    \11\ EPA Region IV. 1979. Brunswick Nuclear Steam Electric 
Generating Plant of Carolina Power and Light Company, historical 
summary and review of section 316(b) issues.
---------------------------------------------------------------------------

    In addition, studies of entrainment at five Hudson River power 
plants during the 1980s predicted year-class reductions ranging from 
six percent to 79 percent, depending on the fish species.\12\ An 
updated analysis of entrainment at three of these power plants 
predicted year-class reductions of up to 20 percent for striped bass, 
25 percent for bay anchovy, and 43 percent for Atlantic tom cod, even 
without assuming 100 percent mortality of entrained organisms.\13\ The 
New York Department of Environmental Conservation concluded that these 
reductions in year-class strength were ``wholly unacceptable'' and that 
any ``compensatory responses to this level of power plant mortality 
could seriously deplete any resilience or compensatory capacity of the 
species needed to survive unfavorable environmental conditions.''\14\
---------------------------------------------------------------------------

    \12\ Boreman J. and P. Goodyear. 1988. Estimates of entrainment 
mortality for striped bass and other fish species inhabiting the 
Hudson River Estuary. American Fisheries Society Monograph 4:152-
160.
    \13\ Consolidated Edison Company of New York. 2000. Draft 
environmental impact statement for the state pollutant discharge 
elimination system permits for Bowline Point, Indian Point 2 & 3, 
and Roseton steam electric generating stations.
    \14\ New York Department of Environmental Conservation (NYDEC). 
2000. Internal memorandum provided to the USEPA on NYDEC's position 
on SPDES permit renewals for Roseton, Bowline Point 1 & 2, and 
Indian Point 2 & 3 generating stations.
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    The following are summaries of other, documented examples of 
impacts occurring at existing facilities sited on a range of waterbody 
types. Also, see the discussion of the benefits of today's final rule 
in Section IX.
    Brayton Point Generating Station. The Brayton Point Generating 
Station is located on Mt. Hope Bay, in Somerset, Massachusetts, within 
the northeastern reach of Narragansett Bay. Because of problems with 
electric arcing caused by salt drift and lack of fresh water for the 
closed-cycle recirculating cooling water system, the company converted 
Unit 4 from a closed-cycle, recirculating system to a once-through 
cooling water system in July 1984. The modification of Unit 4 resulted 
in a 41 percent increase in coolant flow, amounting to an intake flow 
of approximately 1.3 billion gallons per day and increased thermal 
discharge to the bay.\15\ An analysis of fisheries data by the Rhode 
Island Division of Fish and Wildlife using a time series-intervention 
model showed an 87 percent reduction in finfish abundance in Mt. Hope 
Bay coincident with the Unit 4 modification.\16\ The analysis also 
indicated that, in contrast, species abundance trends have been 
relatively stable in adjacent coastal areas and portions of 
Narragansett Bay that are not influenced by the operation of Brayton 
Point station.
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    \15\ Metcalf & Eddy. 1992. Brayton Point station monitoring 
program technical review. Prepared for USEPA.
    \16\ Gibson, M. 1995 (revised 1996). Comparison of trends in the 
finfish assemblages of Mt. Hope Bay and Narragansett Bay in relation 
to operations of the New England Power Brayton Point station. Rhode 
Island Division of Fish and Wildlife, Marine Fisheries Office.
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    San Onofre Nuclear Generating Station. The San Onofre Nuclear 
Generating Station (SONGS) is located on the coastline of the Southern 
California Bight, approximately 2.5 miles southeast of San Clemente, 
California.\17\ The marine portions of Units 2 and 3, which are once-
through, open-cycle cooling systems, began commercial operation in 
August 1983 and April 1984, respectively.\18\ Since then, many studies 
evaluated the impact of the SONGS facility on the marine environment.
---------------------------------------------------------------------------

    \17\ Southern California Edison. 1988. Report on 1987 data: 
marine environmental analysis and interpretation, San Onofre Nuclear 
Generating Station.
    \18\ Ibid.
---------------------------------------------------------------------------

    In a normal (non-El Nino) year, an estimated 121 tons of midwater 
fish (primarily northern anchovy, queenfish, and white croaker) are 
entrained at SONGS, of which at least 57 percent are killed during 
plant passage.\19\ The fish lost include approximately 350,000 
juveniles of white croaker, a popular sport fish; this number 
represents 33,000 adult individuals or 3.5 tons of adult fish. Within 3 
kilometers of SONGS, the density of queenfish and white croaker in 
shallow-water samples decreased by 34 and 36 percent, respectively. 
Queenfish declined by 50 to 70 percent in deepwater samples.\20\ A 
subsequent EPA review of the SONGS 316(b) demonstration concluded that 
although the plant incorporated technologies for minimizing adverse 
environmental impact, operations at SONGS cause adverse impacts to 
organisms in the cooling water system and to biological populations and 
communities in the vicinity of the intake and discharge locations for 
the plant.\21\ These effects included mortality of fish, especially 
losses of millions of eggs and larvae, that are taken into the plant 
with cooling water and creation of a sometimes turbid plume that 
affects kelp, fish, and invertebrates in the San Onofre kelp bed.\22\
---------------------------------------------------------------------------

    \19\ Swarbrick, S. and R.F. Ambrose. 1989. Technical report C: 
entrapment of juvenile and adult fish at SONGS. Prepared for Marine 
Review Committee.
    \20\ Kastendiek, J. and K. Parker. 1989. Interim technical 
report: midwater and benthic fish. Prepared for Marine Review 
Committee.
    \21\ SAIC. 1993. Draft review of Southern California Edison, San 
Onofre Nuclear Generating Station (SONGS) 316(b) demonstration. 
Prepared for USEPA Region IX.
    \22\ Ibid.
---------------------------------------------------------------------------

    Pittsburg and Contra Costa Power Plants. The Pittsburg and Contra 
Costa Power Plants are located in the San Francisco Estuary, 
California. Because the San Francisco Bay Delta ecosystem has changed 
dramatically over the past century, several local species (e.g., Delta 
smelt, Sacramento splittail, chinook salmon, and steelhead) have been 
listed as threatened or endangered. Facility estimates for one of these 
species,

[[Page 65265]]

chinook salmon, indicate that the Pittsburg and Contra Costa intakes 
have the potential to impinge and entrain up to 36,567 chinook salmon 
each year.\23\ Based on restoration costs, EPA estimates that losses 
for this species alone can be valued at $25-40 million per year.
---------------------------------------------------------------------------

    \23\ Southern Energy. 2000. Habitat conservation plan for the 
Pittsburg and Contra Costa Power Plants.
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    Power Plants with Flows Less Than 500 MGD. The following 
information from facility studies documents impingement and entrainment 
losses for facilities with lower flows than the previous examples:
    1. The Pilgrim Nuclear Power Station, located on Cape Cod Bay, 
Massachusetts, has an intake flow of 446 MGD.\24\ The average annual 
total losses of fish (all life stages) was 26,800 due to impingement 
and 3.92 billion due to entrainment\25\
---------------------------------------------------------------------------

    \24\ Edison Electric Institute. 1994. EEI Power Statistics 
Database. Prepared by the Utility Data Institute.
---------------------------------------------------------------------------

    2. The Coleman Power Plant, located on the Ohio River in Henderson, 
Kentucky, has an intake flow of 337 MGD\25\ and combined average 
impingement and entrainment losses of 702,630,800 fish per year (30,800 
impinged and 702,600,000 entrained).\26\
---------------------------------------------------------------------------

    \25\ Data compiled by EPA from annual reports of impingement and 
entrainment losses from the Pilgrim Nuclear Power Station for the 
years 1991-1999.
    \26\ Hicks, D.B. 1977. Statement of findings for the Coleman 
Power Plant, Henderson, Kentucky.
---------------------------------------------------------------------------

    Existing and historical studies like those described in this 
section may provide only a partial picture of the severity of 
environmental impact associated with cooling water intake structures. 
Most important, the methods for evaluating adverse environmental impact 
used in the 1970s and 1980s, when most section 316(b) evaluations were 
performed, were often inconsistent and incomplete, making detection and 
consideration of all impacts difficult in some cases, and making cross-
facility comparison difficult for developing a national rule. For 
example, some studies reported only gross fish losses; others reported 
fish losses on the basis of species and life stage; still others 
reported percent losses of the associated population or subpopulation 
(e.g., young-of-year fish). Recent advances in environmental assessment 
techniques provide new and in some cases better tools for monitoring 
impingement and entrainment and detecting impacts associated with the 
operation of cooling water intake structures.27 28 EPA 
acknowledges that these new assessment techniques may in some cases 
provide additional rather than better tools and perspectives.
---------------------------------------------------------------------------

    \27\ Schmitt, R.J. and C.W. Osenberg. 1996. Detecting Ecological 
Impacts. Academic Press, San Diego, CA.
    \28\ EPRI. 1999. Catalog of assessment methods for evaluating 
the effects of power plant operations on aquatic communities. TR-
112013, EPRI, Palo Alto, CA.
---------------------------------------------------------------------------

IV. Summary of the Most Significant Revisions to the Proposed Rule

A. Data Updates

1. Number and Characteristics of New Facilities
    Chapter 5 of the Economic Analysis provides a detailed discussion 
of the data and methodology used to estimate the number of new electric 
generating facilities and new manufacturing facilities subject to the 
final section 316(b) new facility rule. This section provides a summary 
of primary revisions to the analyses since the proposal. The section 
discusses new combined-cycle facilities, new coal facilities, and new 
manufacturing facilities separately.
a. New Combined-Cycle Facilities
    The general approach for estimating the number of new combined-
cycle facilities subject to the final section 316(b) new facility rule 
has not changed since proposal. However, and as discussed in the notice 
of data availability (NODA), EPA has used new data, which have become 
available since the proposal, to update the analysis. As a result, the 
number of new combined-cycle facilities now projected to be in scope of 
this rule has increased from 24 in the proposed rule analysis to 69 in 
the updated analysis for the final rule.
(1) Proposed Rule
    For the proposal analysis, EPA used a three-step approach to 
estimating the number of new combined-cycle facilities: (1) 
Determination of future combined-cycle capacity additions; (2) 
estimation of the percentage of all regulated combined-cycle facilities 
that are in-scope; and (3) estimation of the number of new facilities. 
EPA used the Annual Energy Outlook 2000 (AEO2000), prepared and 
published by the Energy Information Administration (EIA) of the U.S. 
Department of Energy, as the basis for the projected number of new in-
scope combined-cycle facilities. The AEO2000 forecast 131 gigawatts 
(GW) of new combined-cycle capacity to begin operation between 2001 and 
2020. Since the AEO does not have any information on the number of new 
facilities, their size, or their cooling water characteristics, EPA 
used the January 2000 version of Resource Data International's NEWGen 
Database to determine the in-scope percentage of new combined-cycle 
facilities and their facility and cooling water characteristics.
    In the January 2000 NEWGen database, 94 of 466 projects met the 
following screening criteria: (1) New facility; (2) located in the 
United States; (3) active project (i.e., not canceled or tabled); (4) 
anticipated date of initial commercial operation after August 13, 2001; 
and (5) steam electric prime mover. All 94 facilities were included in 
the analysis of new combined-cycle facilities. EPA then consulted 
permitting authorities, other public agencies, and company websites to 
obtain data on the planned facility cooling water use. EPA obtained 
sufficient data to assess the in-scope status for 56 of the 94 
facilities. Seven of the 56 facilities, or 12.5 percent, were found to 
be in scope of the proposed rule; 49 were found to be out of scope. To 
estimate the total number of new in-scope combined-cycle facilities 
projected to begin operation between 2001 and 2020, EPA applied the 
average facility size of the seven in-scope NEWGen facilities (723 MW) 
and the in-scope percentage (12.5 percent) to EIA's forecast of new 
combined-cycle capacity additions. EPA made the conservative assumption 
that all new combined-cycle capacity would be built at new facilities 
rather than at existing facilities. These calculations resulted in an 
estimate of 24 new in-scope combined-cycle facilities over the 2001-
2020 period (see also Exhibit 1 below).
(2) Final Rule
    For the final rule analysis and as discussed in the NODA, EPA used 
the same general methodology but obtained updated information. In 
particular, EPA used the forecast of capacity additions from the U.S. 
Department of Energy's Annual Energy Outlook (AEO2001) and the February 
2001 NEWGen Database. AEO2001's forecast of new combined-cycle capacity 
additions between 2001 and 2020 was 204 GW, compared with 131 GW in the 
AEO2000. Similarly, the February 2001 NEWGen Database contains 
considerably more new energy projects than the version used for the 
proposed rule analysis: The database contains 941 new projects, of 
which 361 met the screening criteria discussed above. Of the 361 
facilities, 320 are combined-cycle facilities. To increase the number 
of facilities upon which facility and cooling water use characteristics 
are based, EPA excluded the anticipated date of initial commercial 
operation as a screening criterion. The analysis for the final rule

[[Page 65266]]

therefore includes all facilities that meet the other four screening 
criteria, even if a facility will already have begun construction when 
the rule is promulgated and will therefore not be subject to the final 
rule.
    EPA again consulted permitting authorities, other public agencies, 
and company websites to obtain data on the facilities' planned cooling 
water use. EPA obtained sufficient data to assess the cooling water 
characteristics for 199 of the 320 combined-cycle facilities. Of the 
199 facilities, 57, or 28.6 percent, were found to be in scope of the 
final rule; 142 were found to be out of scope. The average size of all 
199 facilities with cooling water information was approximately 741 MW. 
The average size of the 57 in-scope facilities was 747 MW. EPA made one 
other revision in estimating the total number of new in-scope combined-
cycle facilities projected to begin operation between 2001 and 2020: 
Instead of assuming that all new combined-cycle capacity would be built 
at new facilities, EPA used information on combined-cycle capacity 
additions at existing facilities from the NEWGen Database to determine 
the actual share of capacity that will be built at new facilities. The 
database showed that 88 percent of new combined-cycle capacity is 
proposed at new facilities. EPA used the Department of Energy's 
estimate of new combined-cycle capacity additions (204 GW) and 
multiplied it by the percentage of capacity that will be built at new 
facilities (88 percent) to determine that 179 GW of new capacity will 
be constructed at new facilities. EPA then divided this value by the 
average facility size (741 MW) to determine that there would be a total 
of 241 potential new combined-cycle facilities (both in scope and out 
of scope of today's final rule). Finally, on the basis of EPA's 
estimate of the percentage of facilities that meet the two (2) MGD flow 
threshold (28.6 percent), EPA now estimates there will be 69 new in-
scope combined-cycle facilities over the 2001-2020 period. Exhibit 1 
summarizes the data differences for combined-cycle facilities between 
the proposal and the final rule analyses.

 Exhibit 1.--Summary of Combined-Cycle Facility Research (2001 to 2020)
------------------------------------------------------------------------
                                               Proposed
           Information category                  rule       Final  rule
                                               analysis       analysis
------------------------------------------------------------------------
AEO2000 combined-cycle capacity additions.  135 GWa
AEO2001 combined-cycle capacity additions.  .............  204 GW
Percentage of combined-cycle capacity       100%           88%
 additions from new facilities.
Capacity additions from new facilities....  135 GW         179 GW
Average size of all combined-cycle          723 MW         741 MW
 facilities.
Total number of new combined-cycle          187            241
 facilities.
In-scope percentage.......................  12.5%          28.6%
Number of new in-scope combined-cycle       24             69
 facilities.
Average size of in-scope combined-cycle     723 MW         747 MW
 facilities.
------------------------------------------------------------------------
a Includes 4 GW of new coal capacity additions for 2001-2010.

    The final step in the costing analysis for the final rule was to 
project cooling water characteristics of the 69 new in-scope combined-
cycle facilities on the basis of the characteristics of the 57 in-scope 
NEWGen facilities. EPA developed six model facility types based on 
three main characteristics: (1) The facility's type of cooling system 
(once-through or recirculating system); (2) the type of water body from 
which the intake structure withdraws (freshwater or marine water); and 
(3) the facility's steam-electric generating capacity. The model 
facility characteristics were then applied to the 69 projected new 
combined-cycle facilities. EPA estimated that 64 new in-scope combined-
cycle facilities will employ a recirculating system and only five will 
employ a once-through system. Of the 64 facilities with a recirculating 
system, 58 will withdraw from a freshwater body and six will withdraw 
from a marine water body. All five facilities with a once-through 
system are projected to withdraw from a marine water body.
b. New Coal Facilities
    The general approach for estimating the number of new coal 
facilities subject to this final rule has not changed since proposal. 
However, as discussed in the NODA, EPA has used new data, which have 
become available since the proposal, to update the analysis. As a 
result, the number of new coal facilities projected to be in scope of 
this rule, decreased slightly, from 16 in the proposed rule analysis to 
14 in the final rule analysis. However, most of the new in-scope coal 
facilities are now expected to begin operation earlier than under the 
proposal analysis.
(1) Proposed Rule
    For the years 2001-2010, the AEO2000 projected limited new coal-
fired steam electric generating capacity. In addition, the January 2000 
NEWGen Database included no new coal-fired generating facilities. EPA 
therefore did not project any new coal facilities for 2001-2010. For 
the years 2011-2020, EPA used EIA's projected new capacity addition 
from coal-fired facilities, 17 GW, and information from the following 
sources to estimate the number and cooling water characteristics of new 
coal-fired power facilities subject to the rule: Form EIA-767 (Steam 
Electric Plant Operation and Design Report, Energy Information 
Administration, U.S. Department of Energy, 1994, 1997); Form EIA-860 
(Annual Electric Generator Report, Energy Information Administration, 
U.S. Department of Energy, 1994, 1997); and Power Statistics Database 
(Utility Data Institute, McGraw-Hill Company, 1994). EPA estimated that 
16 new coal facilities of 800 MW each would be subject to the proposed 
section 316(b) new facility rule and would begin operation between 2011 
and 2020. Of these, 12 were projected to operate a recirculating system 
in the baseline, while four were projected to operate a once-through 
system.
(2) Final Rule
    EPA used a similar methodology for the final rule analysis but 
obtained updated information and added data from the section 316(b) 
industry survey of existing facilities (Industry Screener 
Questionnaire: Phase I Cooling Water Intake Structures, Detailed 
Industry Questionnaire: Phase II Cooling Water Intake Structures, and 
Industry Short Technical Questionnaire: Phase II Cooling Water Intake 
Structures). To be consistent with the analysis for combined-cycle 
facilities, EPA used the forecast of capacity additions from the

[[Page 65267]]

AEO2001, which predicts 22 GW of new coal capacity between 2001 and 
2020. In contrast to the proposal analysis, EPA considered the entire 
2001-2020 period for the final rule analysis. In addition, EPA used 
information from the section 316(b) industry survey to determine the 
average size, in-scope percentage, and cooling water characteristics of 
new coal plants. The three surveys identified 111 unique coal-fired 
facilities that began commercial operation between 1980 and 1999. The 
facilities have a combined generating capacity of 53 GW, with an 
average of 475 MW each. The surveys further showed that 45 of the 111 
facilities, or 40.5 percent, would be in scope of today's final rule if 
they were new facilities. These 45 facilities have an average 
generating capacity of 763 MW.
    Information in the February 2001 version of the NEWGen Database on 
capacity additions at new and existing facilities showed that 
approximately 76 percent of new coal capacity will be built at new 
facilities. Applying this percentage (76 percent), as well as the 
average facility size (475 MW) and the in-scope percentage (40.5 
percent), to EIA's forecast of new coal capacity additions resulted in 
14 new in-scope coal facilities, with an average capacity of 763 MW, 
over the 2001-2020 period. Exhibit 2 summarizes the data differences 
for coal facilities between the proposal and the final rule analyses.

              Exhibit 2.--Summary of Coal Facility Research
------------------------------------------------------------------------
                                       Proposed  rule      Final rule
                                      analysis  (2011-  analysis  (2001-
                                            2020)             2020)
------------------------------------------------------------------------
AEO2000 coal capacity additions.....  17 GW
AEO2001 coal capacity additions.....  ................  22 GW
Percentage of coal capacity           82%               76%
 additions from new facilities.
Capacity additions from new           14 GW             17 GW
 faciliteis.
Average size of all coal facilities.  800 MW            475 MW
Total number of new coal facilities.  18                35
In-scope percentage.................  99.0%             40.5%
Number of new in-scope coal           16                14
 facilities.
Average size of in-scope coal         800 MW            763 MW
 facilities.
------------------------------------------------------------------------

    EPA projected cooling water characteristics of the 14 new in-scope 
coal facilities using data for recently-constructed plants from the 
section 316(b) industry survey. Similar to the combined-cycle facility 
analysis, EPA developed eight model facility types based on three main 
characteristics: (1) The facility's type of cooling system (once-though 
or recirculating system); (2) the type of water body from which the 
intake structure withdraws (freshwater or marine water); and (3) the 
facility's steam-electric generating capacity. The model facility 
characteristics were then applied to the 14 projected new coal 
facilities. EPA estimated that 10 new in-scope coal facilities will 
employ a recirculating system and three will employ a once-through 
system. One coal facility has a recirculating cooling pond and will 
exhibit characteristics more like a once-through facility. Of the10 
facilities with a recirculating system, nine will withdraw from a 
freshwater body and only one facility will withdraw from a marine water 
body. All three facilities with a once-through system and the one 
facility with a cooling pond are projected to withdraw from a 
freshwater body.
c. Manufacturing Facilities
    The general methodology used to estimate the number of new 
manufacturing facilities subject to the final section 316(b) new 
facility rule has not changed since proposal. However, on the basis of 
comments, EPA has altered some estimates and used new data to update 
the analysis. As a result, the number of new manufacturing facilities 
projected to be in scope of this rule has decreased from 58 at proposal 
to 38 in the final rule analysis.
(1) Proposed Rule
    In the proposal analysis, EPA used three industry-specific 
estimates to project the number of new in-scope manufacturing 
facilities: (1) Industry growth forecasts; (2) the estimated percentage 
of the projected capacity growth accounted for by new facilities; and 
(3) data on the cooling water use at existing facilities. EPA used the 
projected growth of value of shipments in each industry to estimate 
likely future growth in capacity. A number of sources provided growth 
forecasts, including the annual U.S. Industry & Trade Outlook, AEO2001, 
and other sources specific to each industry. EPA assumed that the 
growth in capacity will equal growth in value of shipments, except 
where industry-specific information supported alternative assumptions. 
Not all industry growth, however, is expected to occur at new 
facilities: Some of the projected growth in capacity may result from 
increased utilization of existing capacity or capacity additions at 
existing facilities. Where information on the share of growth from new 
facilities was available, EPA used these data. For example, EIA 
projected that all increases in petroleum shipments will result from 
expanded capacity at existing facilities. Where this information was 
not available, EPA made the conservative estimate that 50 percent of 
the projected growth in capacity will be attributed to new facilities. 
Finally, EPA assumed that the cooling water use characteristics of new 
facilities in each industry, including the in-scope percentage, would 
be similar to those of existing facilities. Cooling water use data for 
existing facilities came from the Industry Screener Questionnaire: 
Phase I Cooling Water Intake Structures. To calculate the total number 
of new in-scope manufacturing facilities, EPA applied the industry-
specific growth rate and the percentage of capacity growth from new 
facilities to the sample-weighted number of in-scope screener 
facilities in each industry.
(2) Final Rule
    For the final rule analysis, EPA updated the projected growth in 
value of shipments for each industry using the most recent data 
available. On the basis of comments, three changes were made to the 
percentage of projected capacity growth that is attributed to new 
facilities. First, the American Chemistry Council stated that EPA 
overestimated the number of new in-scope chemical facilities in the 
proposal analysis because the percentage of growth that comes from new 
facilities (50 percent) was overstated. The comment did not provide a 
more accurate estimate. EPA

[[Page 65268]]

therefore revised this estimate for the chemical industry to 25 
percent, which reduced the number of new chemical facilities by half. 
(The Economic Analysis documents the effect of using an alternative 
assumption of 37.5 percent, the midpoint between the proposal analysis 
estimate and the final rule analysis estimate, in analyzing the 
economic impacts of this rule.) Second, the petroleum industry 
commented that the assumption of no new petroleum refineries over the 
next 20 years is invalid. Even though the AEO2001 projects no new 
refineries in the United States, to be conservative EPA nevertheless 
revised this estimate and included two new in-scope petroleum 
refineries in the final rule analysis. Third, the American Forest & 
Paper Association stated that one or two new greenfield paper mills 
will be built over the next decade. EPA added two new in scope paper 
mills over the 20-year analysis period in response to this comment. In 
addition, EPA updated the water use characteristics of the projected 
new facilities by using data from the Detailed Industry Questionnaire: 
Phase II Cooling Water Intake Structures instead of the Screener 
Questionnaire. In the proposal analysis, EPA erroneously used the 
average daily intake flow rate, instead of the design intake flow rate, 
to determine whether a facility meets the two MGD flow threshold and is 
subject to the rule. Since the average intake flow is either lower than 
or equal to the design intake flow, this error likely underestimated 
the number of new in-scope manufacturing facilities. For the analysis 
of the final rule, EPA used the design intake flows reported in the 
section 316(b) industry survey.
    Overall, because of the revisions described above, EPA's estimate 
of the number of new in-scope manufacturing facilities dropped from 58 
at proposal to 38 in the cost analysis for this final rule.
2. Revisions to the Costing Estimates
    Chapter 2 of the Technical Development Document provides a detailed 
description of the data and methodology used to develop compliance cost 
estimates for the final regulation. This section provides a summary of 
the main revisions in the costing inputs since the proposal.
    At the time of the proposal, EPA included cost estimates for plume 
abatement at 50 percent of the electric generating facilities 
anticipated to install recirculating wet cooling towers to comply with 
the rule. This was an error. As described in the NODA (66 FR 28866 and 
28867), EPA has since refined its estimates of cooling tower costs on a 
national basis to reflect plume abatement costs at a significantly 
lower proportion of facilities. EPA determined, on the basis of further 
research and information received from vendor manufacturers, that plume 
abatement measures were installed at only 3 to 4 percent of recent wet 
cooling tower projects. Therefore, the costing estimates for the final 
rule reflect this change.
    At the time of the proposal, EPA included cost estimates for 
pumping of recirculating cooling water in the towers based on a flow 
rate equal to 15 percent of a comparable once-through cooling flow 
(based on the flow of make-up water). As explained in the NODA (66 FR 
28866), this was an error. EPA has since refined its costing estimates 
to include the entire cooling flow. EPA's cost estimates for both 
capital and O&M costs for the final rule reflect appropriately sized 
pumps to recirculate the full design cooling water flow. The in-tower 
cooling water flow is now based on the level of cooling necessary for 
the condenser and the plants' cooling needs.
    Since proposal, EPA has included costs from additional projects in 
the calculation of its costing estimates for recirculating wet cooling 
towers. EPA obtained further ``turn-key'' vendor project costs that 
have been incorporated into the specific costing equations used to 
calculate the capital and operation and maintenance (O&M) costs of the 
final rule. Turn-key project costs represents all costing elements 
necessary to estimate engineering costs, such as vendor overhead, 
equipment, wiring, foundations and contingencies. EPA included these 
project costs in the calculation of the costing equations in order to 
increase the number of real-world projects upon which the final cost 
estimates are based.
    EPA has refined its estimates of O&M costs for recirculating wet 
cooling towers since proposal. At the time of proposal, EPA estimated 
economy of scale for O&M costs for recirculating, wet cooling towers as 
their size increases. EPA based this estimate primarily on the economy 
of scale savings for wastewater treatment systems as wastewater flow 
increases. The overall effect of this approach showed that for very 
large cooling towers, a savings of nearly two-thirds was achieved 
compared with smaller cooling towers. On the basis of comments received 
and further research, EPA has refined its estimates of O&M costs and 
economies of scale. The cost estimates presented for the final rule 
reflect this revision to the analysis.
    In the final rule, EPA has included cost estimates for energy 
penalties due to operating power losses from recirculating cooling 
tower systems. Further information on this subject can be found in 
Section IV.A.3 of this preamble, below.
3. Energy Penalty Estimates for Recirculating Wet Cooling and Dry 
Cooling Towers
    Since proposal, as discussed in the NODA (66 FR 28866), EPA has 
included in its estimates of O&M costs the performance penalties that 
may result in reductions of energy or capacity produced because of 
adoption of recirculating cooling tower systems. The cost estimates for 
the final rule include consideration of these penalties. The final rule 
cost estimates account for the energy penalty at facilities that are 
projected to install recirculating wet cooling tower systems in lieu of 
once-through cooling systems. EPA's cost estimates for dry cooling 
regulatory alternatives account for the appropriate energy penalty of 
this technology at each facility projected to install such a system.
    For the final rule, EPA's costing methodology for performance 
penalties is based on the concept of lost operating revenue due to a 
mean annual performance penalty. EPA estimated the mean annual 
performance penalty for each tower technology as compared with once-
through or recirculating wet cooling systems (where applicable for the 
dry cooling analysis). EPA then applied this mean annual penalty to the 
annual revenue estimates for each facility projected to install a 
recirculating cooling tower technology as a result of the rule or a 
regulatory option. EPA considers these revenue losses as representative 
of the cost to the facility for either replacing the power lost via the 
market or expanding the capacity of the new power plant.
    Chapter 3 of the Technical Development Document discusses 
performance penalties in more detail.
4. Significant Changes to the Economic Analysis a. Revisions to Costing 
Analysis
    EPA has made a methodological change for estimating the cost for 
today's rule. For the proposal, EPA directly estimated the incremental 
cost of the rule without estimating the baseline cost. This made it 
difficult to identify the magnitude of changes in relevant components 
of a system of a facility and their individual costs. For the final 
rule, EPA separately estimated the baseline costs and the cost after 
meeting the requirements of the rule.

[[Page 65269]]

Thus, the incremental cost attributed to the rule is derived from the 
difference between the baseline cost and the cost after compliance with 
the requirements of the rule.
    For the proposal, EPA estimated the cost of the rule to be $12 
million. This estimate was in part based on the assumption that 90 
percent of the coal facilities would be within the scope of the rule. 
Since the publication of the proposal, EPA has analyzed additional 
information regarding coal facilities. This information shows that 40.5 
percent of the coal facilities would be within the scope of the rule. 
EPA also revised the baseline characteristics for these facilities. For 
the final rule, EPA estimates that 71 percent of new in-scope coal 
facilities would have recirculating cooling towers independent of the 
rule. For combined-cycle facilities, EPA used the January 2000 version 
of the NEWGen database at proposal to estimate the proportion of the 
facilities that would be within the scope of the proposal. In view of 
the changes in the energy market, EPA is using a more current version 
(February 2001) of the NEWGen database for the final analysis. 
Consequently, EPA is revising the in-scope percentage for combined-
cycle facilities to 28.6 percent for the final analysis, instead of 
12.5 percent used for the proposal.
    For the proposal, EPA used the average flow from the section 316(b) 
industry survey, screener questionnaire for existing manufacturing 
facilities to estimate the technology and O&M costs for new 
manufacturing facilities. EPA believes that the average flow would 
underestimate the costs because costs mostly depend on design of a 
facility. Therefore, EPA is using the design flow for estimating the 
cost for manufacturing facilities for the final rule. For the proposal, 
EPA assumed that 50 percent of the growth in product demand in the 
chemical industry would be met from new facilities. Commenters pointed 
out that this assumption leads to an overestimation of the number of 
new facilities and EPA agrees. Therefore, EPA has revised this 
assumption to 25 percent for the analysis supporting today's rule.
    EPA has also examined the cost of the rule as a percentage of 
(annual) revenue for purposes of determining whether the options are 
economically practicable. The worst-case, or upper-limit, cost estimate 
for the rule is between 3.3 to 5.2 percent of estimated revenues (for 
three coal facilities), between 1 and 3 percent for an additional six 
facilities, and less than 1 percent for the rest of the facilities. EPA 
concludes that those costs are economically practicable and will not 
pose a barrier to entry for new facilities. The initial compliance cost 
of the rule (i.e., capital costs and permitting costs) as a percentage 
of construction cost of an electric generation facility is 3.4 percent 
for one coal facility, between 1.0 and 3.0 percent for an additional 
seven facilities, and less than 1.0 percent for the rest of the 
electric generation facilities. EPA finds that these are relatively low 
compliance costs. EPA does not consider that the cost of the rule would 
be a barrier to entry for new facilities and also finds that cost to be 
economically practicable.
5. Air Emissions Increases as a Result of Certain Regulatory Options
    For the final rule, and as discussed in the NODA, EPA includes 
estimates of annual air emissions increases for certain pollutants from 
new power plants as a result of certain regulatory options considered. 
EPA developed estimates for air emissions increases for SO2, 
NOX, CO2, and Hg for the regulatory options based 
on near-zero intake (dry cooling) and for those based on uniform 
national requirements of flow reduction commensurate with closed-cycle 
recirculating wet cooling systems (wet cooling towers) or with wet-
cooling systems in Track I of a two-track rule. EPA anticipates, 
because of measurable performance penalties associated with cooling 
tower systems (see Section IV.A.3 of this preamble), that, depending on 
the regulatory option, air emissions nationally could increase from all 
or a small subset of new power plants as a result of the installation 
of cooling tower systems. EPA estimates the marginal air emissions 
increases by assuming that the energy lost by the facility cannot be 
replaced through additional fuel consumption at that facility, but 
rather, the energy will be replaced by the entire grid as a whole. 
Thus, the replacement energy necessary to compensate for the 
performance penalty is generated by the mix of fuels present in the 
entire grid. This is because, in EPA's view and on the basis of 
comments received, power plants are not always capable of compensating 
for an energy shortfall due to a performance penalty of a recirculating 
cooling tower by increasing their fuel consumption. Even though the 
estimated mean annual performance penalty for recirculating wet cooling 
towers is small, EPA estimates that facilities designed for once-
through cooling would not always be designed with sufficient excess 
capacity to compensate for the performance penalties caused by 
recirculating wet cooling tower installations as a result of this rule. 
Therefore, EPA determines that marginal increases in air emissions due 
to performance penalties are best represented by estimating that the 
entire grid will replace the energy loss. EPA's estimates of marginal 
increases of air emissions are presented in Exhibit 3.

                           Exhibit 3.--Estimates of Marginal Increases of Air Emissions for Recirculating Wet Cooling Towers a
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Capacity  (MW)        Annual CO 2  (tons)      Annual SO 2  (tons)     Annual NOX  (tons)      Annual Hg  (lbs)
--------------------------------------------------------------------------------------------------------------------------------------------------------
National Emissions from             828,631               2,575,814,488             13,581,673              6,437,710              86,722
 Electricity Generation.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Air Emission Increases if Plants Compensate With Increased Fuel Consumption
--------------------------------------------------------------------------------------------------------------------------------------------------------
National Electricity Generation     ....................  712,886                   1,543                   1,518                  23
 Air Emissions Increases for Wet                          (.0028%)                  (.0011%)                (.0024%)               (.0026%)
 Cooling.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Air Emission Increases if Plants Purchase Replacement Power From Market
--------------------------------------------------------------------------------------------------------------------------------------------------------
National Electricity Generation     ....................  485,860                   2,561                   1,214                  16
 Air Emissions Increases for Wet                          (.0019%)                  (.0019%)                (.0019%)               (.0019%)
 Cooling.
--------------------------------------------------------------------------------------------------------------------------------------------------------
a This analysis assumes that annual emissions from energy generation are constant from 1998 to 2020, even though generation is projected to increase
  steadily over the next twenty years. Therefore, these estimates are slightly overstated.


[[Page 65270]]

B. Regulatory Approach

1. Proposed Rule
    EPA proposed flow, velocity, and other design and construction 
technologies requirements based on the type of waterbody in which the 
intake structure is located and, for certain types of waters, the 
location of the intake in the water body. EPA proposed to group surface 
water into four categories: freshwater rivers and streams, lakes and 
reservoirs, estuaries and tidal rivers, and oceans. For each of these 
waterbody types, EPA divided the waterbody into sections based on the 
defined ``littoral zone.'' At proposal, littoral zone was defined as 
any nearshore area in a freshwater river or stream, lake or reservoir, 
or estuary or tidal river extending from the level of highest seasonal 
water to the deepest point at which submerged aquatic vegetation can be 
sustained (i.e., the photic zone extending from shore to the substrate 
receiving one (1) percent of incident light); where there is a 
significant change in slope that results in changes to habitat or 
community structure; and where there is a significant change in the 
composition of the substrate (e.g., cobble to sand, sand to mud). In 
oceans, the littoral zone encompassed the photic zone of the neritic 
region. The photic zone is that part of the water that receives 
sufficient sunlight for plants to be able to photosynthesize. The 
neritic region is the shallow water or nearshore zone over the 
continental shelf.
    In general, the closer the intake structure was to the littoral 
zone, the more stringent the proposed best-technology-available 
requirements for minimizing adverse environmental impact became. For 
example, an intake structure located within the littoral zone would 
have required the most stringent capacity and velocity controls as well 
as the use of other design and construction technologies. EPA also 
proposed the most stringent requirements for best technology available 
for minimizing adverse environmental impact in all parts of tidal 
rivers and estuaries because of the potential for high biological 
productivity in these waters.
2. Notice of Data Availability
    In the NODA, EPA sought comment on various versions of a two-track 
approach resulting from comments received on the proposal. Under this 
approach, a facility would choose to pursue one of two tracks. In 
general (based on size), Track I would establish national technology-
based performance requirements, whereas Track II would allow the 
facility to conduct site-specific studies to demonstrate to the permit 
director that alternative technologies or approaches could reduce 
impingement and entrainment to the same or a greater degree than the 
Track I technology-based performance standards. See 66 FR 28868 to 
28872.
3. Final Rule
    In this rule, EPA is establishing a two-track technology-based 
approach that does not distinguish between waterbody types or the 
location of the intake structure within the waterbody type. Track I 
establishes capacity (for facilities with a design intake flow equal to 
or greater than 10 MGD), velocity, and capacity- and location-based 
proportional flow requirements to reduce impingement and entrainment of 
fish, shellfish, eggs, and larvae and requires the applicant to select 
and implement design and control technologies to minimize impingement 
and entrainment in certain areas. Track I applicants with intake flow 
between 2 and 10 MGD do not have to comply with a capacity limitation 
but then must use technologies to reduce entrainment at all locations. 
Track II allows a facility to conduct a comprehensive demonstration 
study to show that alternative controls will achieve comparable 
performance. The two-track approach balances the goal of providing 
regulatory certainty and fast permitting for new facilities with the 
goal of allowing flexibility by including a performance-based 
alternative. Track I streamlines the permitting process, providing a 
high degree of certainty that a facility will obtain a National 
Pollutant Discharge Elimination System (NPDES) permit without delays. 
In EPA's view, Track II provides an incentive for the development of 
innovative technologies that will represent best technology available 
for minimizing impingement and entrainment from cooling water intake 
structures.

V. Basis for the Final Regulation

A. Major Options Considered for the Final Rule

    EPA considered and analyzed several technology-based regulatory 
options to determine the best technology available for minimizing 
adverse environmental impact for new facilities. All of these options 
were analyzed and compared with the current requirements applied to 
NPDES permits for existing facilities with cooling water intake 
structures. Although the Agency considered numerous regulatory options 
during rule development, the primary options considered in development 
of today's final rule include: (1) Technology-based performance 
requirements for different types of waters, with intake capacity limits 
based on closed-cycle recirculating wet cooling systems required only 
in estuaries, tidal rivers, the Great Lakes, and oceans; (2) national 
technology-based performance requirements for all waterbodies, with 
flow reduction commensurate with the level achieved with closed-cycle 
recirculating wet cooling; (3) national technology-based performance 
requirements for all waterbodies with a near-zero intake level (based 
on dry cooling); 29 and (4) a case-by-case, site-specific 
approached based on the 1977 draft guidance document.30 In 
addition to these options, EPA also considered variations on each of 
the technology-based options using on a two-track permitting approach. 
The two-track options include one presented by industry for 
consideration. The two-track approach establishes a specific set of 
technology-based performance requirements that a permittee can 
implement that reflect best technology available for minimizing adverse 
environmental impact; this approach also provides permittees with 
flexibility to demonstrate that an alternative set of requirements 
achieves a comparable level of performance.
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    \29\ EPA also examined subcategorization strategies for the dry 
cooling based option, on the basis of regional distribution of 
facilities, size of facilities, and type of facility (i.e., steam 
electric power plants versus manufacturing facilities).
    \30\ U.S. Environmental Protection Agency. 1977. Draft guidance 
for evaluating the adverse impact of cooling water intake structures 
on the aquatic environment: section 316(b) P.L. 92-500.
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    For all the options except for those based on dry cooling, EPA also 
considered requiring a design through-screen velocity of 0.5 ft/s, 
location- and capacity-based flow restrictions proportional to the size 
of the waterbody (such as a requirement for streams and rivers allowing 
no more than 5 percent withdrawal of the mean annual flow), and design 
and construction technologies to minimize impingement mortality and 
entrainment. In addition, EPA considered requiring post-operational 
monitoring of impinged and entrained organisms, monitoring of the 
through-screen velocity, and periodic visual inspections of the intake 
structures.
1. Technology-Based Performance Requirements for Different Types of 
Waterbodies
    Under this option, EPA would establish requirements for minimizing 
adverse environmental impact from cooling water intake structures based 
on

[[Page 65271]]

the type of waterbody in which the intake structure is located, the 
location of the intake in the waterbody, the volume of water withdrawn, 
and the design intake velocity. EPA would also establish additional 
requirements or measures for location, design, construction, or 
capacity that might be necessary for minimizing adverse environmental 
impact. Under this option, the best technology available for minimizing 
adverse environmental impact would constitute a technology suite that 
would vary depending on the type of waterbody in which a cooling water 
intake structure is located and the location of the cooling water 
intake structure within the waterbody. EPA would set technology-based 
performance requirements; the Agency would not mandate the use of any 
specific technology.
    Under this option, EPA considered only requiring intake flow 
reduction commensurate with the level that can be achieved using a 
closed-cycle recirculating wet cooling system for intakes located in 
estuaries, tidal rivers, oceans, and the Great Lakes. For all other 
waterbody types, the only capacity requirements would be proportional 
flow reduction requirements. In all waterbodies, velocity limits and a 
requirement to study, select, and install design and construction 
technologies would apply. EPA determined that the annual compliance 
cost to industry for this option would be $36.3 million. EPA found that 
the regulatory implementation burden would be of an acceptable level 
but that the delay in permitting of new facilities could be up to 6 
months if all new facilities were required to complete a baseline 
biological characterization study prior to submitting an application 
for a permit. This study would detail the potential design and 
construction technologies that would apply to all new facilities and 
would be required beyond the flow reduction requirements for facilities 
located in estuaries, tidal rivers, oceans, and the Great Lakes. This 
option was, in part, rejected due to the potential of delays in 
permitting. More significantly, this option was rejected because 
closed-cycle recirculating cooling water systems are available and 
economically practicable across all waterbody types.
2. National Technology-Based Performance Requirements for All 
Waterbodies
a. Flow Reduction Commensurate With the Level Achieved by Closed-Cycle 
Recirculating Wet Cooling Systems
    EPA also considered a regulatory option for new facilities based 
primarily on intake-flow reduction from all cooling water intake 
structures commensurate with the level that can be achieved using a 
closed-cycle recirculating cooling water system. This option does not 
distinguish between facilities on the basis of the waterbody from which 
they withdraw cooling water. In addition to reducing design intake 
velocity and complying with capacity- and location-based proportional 
flow requirements, all facilities need to complete a baseline 
biological characterization study prior to submitting the application 
for a permit. This study would detail the design and construction 
technologies necessary to maximize the survival of impinged adult and 
juvenile fish and to minimize the entrainment of eggs and larvae. The 
applicant would also need to comply with any additional requirements 
established by the Director as reasonably necessary to minimize 
impingement and entrainment as a result of the effects of multiple 
cooling water intake structures in the same waterbody, seasonal 
variations in the aquatic environment affected by the cooling water 
intake structures controlled by the permit, or the presence of 
regionally important species. EPA did not determine the annual 
compliance cost to industry for this option. EPA found that the permit 
writer's regulatory implementation burden would be of an acceptable 
level. EPA adopted this option, in part, as Track I of the two-track 
approach.
b. Intake Capacity Reduction Commensurate with the Level Achieved by 
Use of a Dry Cooling System
    EPA considered a regulatory option for new facilities based 
primarily on intake flow reduction from all cooling water intake 
structures commensurate with zero or very low-level intake (dry 
cooling). This option does not distinguish between facilities on the 
basis of the waterbody from which they withdraw cooling water. Dry 
cooling systems use either a natural or a mechanical air draft to 
transfer heat from condenser tubes to air. EPA determined that the 
annual compliance cost to industry for this option would be at least 
$490 million. EPA also found that the permit writer's regulatory 
implementation burden would be of an acceptable level and there would 
be no delay in the permitting of new facilities. The option would 
require no baseline biological characterization study prior to 
submission of the application for a permit, due to the requirement of 
near-zero intake.
    In addition, EPA analyzed three subcategorization strategies for 
the final rule based on the dry cooling technology. EPA considered 
establishing zero or very low-level intake requirements only for steam 
electric power plants locating in cold northern climates. See Section 
V.C.1. EPA also separately analyzed a zero or very low-level intake 
requirement for steam electric power plants of small capacity (those 
with total capacity less than 500 MW). See Section V.C.1. For both of 
these subcategorization strategies, all facilities not complying with 
dry cooling technology-based performance requirements would comply with 
the national requirement of capacity reduction based on closed-cycle 
recirculating wet cooling. The dry cooling subcategories would require 
no baseline biological characterization study prior to submission of 
the application for permit, because of the requirement of near-zero 
intake. EPA found that the permit writer's regulatory implementation 
burden would be of an acceptable level and there could be a delay of up 
to 6 months in the permitting of new facilities under the dry cooling 
based subcategories. EPA discusses why it is not adopting the dry 
cooling approach for subcategories based on size and/or climate in 
Section V.C. below.
3. Two-Track Options
    For each of the regulatory options outlined above that requires 
reduction of flow commensurate with the level achieved with closed-
cycle recirculating cooling systems, EPA also considered a number of 
two-track options. The two-track options provide flexibility to the 
permittee in that the facility may choose to comply by meeting the 
specific technology-based performance requirements defined in the 
``fast track'' (Track I), or by demonstrating that a level of 
performance would be achieved comparable to the level that would be 
achieved under the Track I requirements under the ``demonstration 
track'' (Track II).
    Under one of the two-track options (referred to as the ``preferred 
two-track'' option), EPA considered a fast-track based on a commitment 
by the facility to employ a suite of technologies that would represent 
best technology available for minimizing adverse environmental impact. 
The technologies

[[Page 65272]]

considered include reduction in capacity commensurate with that 
achievable by use of a closed-cycle recirculating cooling water system; 
a velocity limitation of less than or equal to 0.5 ft/s; and location 
where intake capacity would be no more than five (5) percent of the 
mean annual flow of a freshwater stream or river, no more than one (1) 
percent 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. Applicants also would be 
required to conduct baseline biological characterization monitoring; 
these data would be used to determine which design and construction 
technologies are needed on a case-by-case basis. EPA also considered 
allowing the permit applicant to specify design and construction 
technologies and to require monitoring so that the performance of these 
technologies could be evaluated in a subsequent NPDES permit. In order 
to speed up the issuance of the first permit at the new facility, EPA 
considered waiving any mandatory baseline biological characterization 
monitoring under Track I. In this case, the applicant would have the 
opportunity to rely on and present historical or literature information 
to support its selection of design and construction technologies. Under 
this approach, applicants would propose what design and construction 
requirements are most appropriate to reduce impingement and entrainment 
or to maximize impingement survival resulting from water withdrawn as 
make-up water at these facilities. The biological characterization 
information would support the design and construction technologies that 
the permittee chose to implement. The Director could revisit these 
design and construction technologies at the time of permit renewal. 
(Most design and construction technologies can be implemented without 
stopping operation at the facility.) As an alternative to the case-by-
case designation of design and construction technologies, EPA also 
considered designating the following two design and construction 
technologies as part of a fast-track, best technology available 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.
    Under Track II, a facility would need to conduct a comprehensive 
demonstration study that documents that an alternative suite of 
technologies can be used by the facility to reduce impingement 
mortality and entrainment for all life stages of fish and shellfish to 
achieve a level of reduction comparable to the level that would be 
achieved under Track I. The estimated annual compliance cost to 
facilities for the preferred two-track option is $47.7 million.
    EPA also considered a less stringent variation of the two-track 
option above, in which Track I would not require cooling water intake 
structures located in fresh rivers or streams and lakes or reservoirs 
to reduce capacity to a level commensurate with that achievable by use 
of a closed-cycle cooling system. EPA did not select this option 
because other available technologies that are economically practicable 
achieve greater reduction in impingement and entrainment.
    EPA also considered a third two-track option as suggested by 
industry. Under this option, an applicant choosing Track I would 
install ``highly protective'' technologies in return for expedited 
permitting without the need for pre-operational or operational studies 
in the source waterbody. According to the commenters, these 
technologies would ``exceed the section 316(b) standards'' because they 
would ``avoid adverse environmental impact,'' defined as proven 
population or ecosystem impacts. Such fast-track technologies might 
include technologies that reduce intake flow to a level commensurate 
with a wet closed-cycle cooling at that site and that achieve 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 
ft/s, or any technologies that achieve a level of protection from 
impingement and entrainment within the expected range for a closed-
cycle cooling (with 0.5 ft/s approach velocity) given the waterbody 
type where the facility is to be located. This option was intended to 
allow facilities to use standard or new technologies 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 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 impingement and 
entrainment; and (c) aquatic filter barrier systems, at sites where 
they would not be rendered ineffective by high flows or fouling. The 
operator of a proposed new facility would elect which set of 
technologies to install and validate its performance as necessary. In 
return, the permitting agency would not require additional section 
316(b) protective measures for the life of the facility.
    Under the industry approach, Track II would provide an applicant 
who does not want to commit to any of the above technology options with 
an opportunity to demonstrate that site-specific characteristics, 
including the local biology, would justify another cooling water intake 
structure technology, such as once-through cooling. For these 
situations, the applicant could demonstrate to the permitting agency, 
on the basis of 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 is an appreciable 
risk of adverse environmental impact (e.g., population effects), the 
technology that would ``minimize'' it would be the technology that 
maximized net benefits. EPA determined that the annual compliance cost 
to industry for this option would be $24.9 million. EPA discusses why 
it is not accepting the industry's two-track approach in full in 
Section V.D below.
    EPA also considered a waterbody-based two track option. Under this 
option, Track I would require, depending on the waterbody type, 
screens, fish return systems, or reduction in capacity to a level 
commensurate with that achievable by use of a closed-cycle cooling 
system. The delineation of waterbody types would correlate with greater 
or lesser potential for impingement and entrainment. Under Track II , a 
permit applicant would be able to demonstrate how alternative 
technology performance measures would reduce impingement mortality and 
entrainment for all life stages of fish and shellfish to a level of 
reduction comparable to the level that would be achieved under Track I.
    EPA did consider a two-track option based on dry cooling. EPA did 
not promulgate this option for reasons discussed at Section V.C. of 
this preamble for not adopting dry cooling as best technology available 
for minimizing adverse environmental impact. In addition, there are 
very limited alternatives for achieving a dry cooling-level reduction 
in impingement and entrainment in a second track. EPA did not select 
this option because other available technologies that are economically 
practicable achieve

[[Page 65273]]

significant reduction in impingement and entrainment at far lower cost.

B. Why EPA Is Establishing EPA's Preferred Two-Track Option as the Best 
Technology Available for Minimizing Adverse Environmental Impact?

    For new facilities subject to this rule, EPA finds that the 
preferred two-track option represents the best technology available for 
minimizing adverse environmental impact. With respect to new 
facilities, the technologies used as the basis for this option are 
commercially available and economically practicable for the industries 
affected as a whole, and have acceptable energy impacts. EPA estimates 
that only nine electric generators who were planning to install a once-
through cooling system will have to install recirculating wet cooling 
towers as a result of this rule. The energy impacts associated with 
these nine facilities is estimated to comprise only 0.026 percent of 
total new electric generating capacity. Similarly, the technologies 
used as the basis for this option also have acceptable non-aquatic 
environmental impacts. The non-aquatic environmental impacts associated 
with increased air emissions (SO2, NO2, 
CO2, and Hg) is very small. The increased SO2, 
NOX, CO2, and Hg attributed to the nine 
facilities that would be required to install recirculating wet cooling 
towers in lieu of once-through cooling systems is negligible in 
comparison to the total annual air emissions from new power plants. EPA 
finds that the requirements contained in the preferred two-track 
approach meet the requirement of section 316(b) of the CWA that the 
location, design, construction, and capacity of cooling water intake 
structures reflect the best technology available for minimizing adverse 
environmental impact. The components of the two-track approach are 
illustrated in Appendix 1 to this preamble.
1. What Are the Performance Requirements for the Location, Design, 
Construction, and Capacity for Cooling Water Intake Structures?
    Under the final rule, EPA has adopted a two-track approach. Under 
Track I, for facilities with a design intake flow equal to or greater 
than 10 MGD, the capacity of the cooling water intake structure is 
restricted, at a minimum, to a level commensurate with that which could 
be attained by use of a closed-cycle recirculating system. Then for 
facilities with a design intake flow equal to or greater than 2 MGD, 
the design through-screen intake velocity is restricted to 0.5 ft/s and 
the total quantity of intake is restricted to a proportion of the mean 
annual flow of a freshwater river or stream, or to maintain the natural 
thermal stratification or turnover patterns (where present) of a lake 
or reservoir except in cases where the disruption is determined to be 
beneficial to the management of fisheries for fish and shellfish by any 
fishery management agency(ies), or to a percentage of the tidal 
excursions of a tidal river or estuary. In addition, an applicant with 
intake capacity greater than 10 MGD must select and implement an 
appropriate design and construction technology for minimizing 
impingement mortality and entrainment if certain conditions exist. 
(Applicants with 2-10 MGD flows are not required to reduce capacity but 
must install technologies for reducing entrainment at all locations.) 
Under Track II, the applicant has the opportunity to demonstrate that 
impacts to fish and shellfish, including important forage and predator 
species, within the watershed will be comparable to these which you 
would achieve were you to implement the Track I requirements for 
capacity and design velocity. See Sec. 125.84(b)(1) and (2). 
Proportional flow requirements also apply under Track II.
a. Capacity
    In Track I, all new facilities with cooling water intake structures 
having a design intake flow equal to or greater than 10 MGD must:
    Reduce the total design intake flow to a level, at a minimum, 
commensurate with that which can be attained by a closed-cycle 
recirculating cooling water system using minimized make-up and blowdown 
flows.
    Reducing the cooling water intake structure's capacity is one of 
the most effective means of reducing entrainment (and impingement). 
Capacity includes the volume of water that can be withdrawn through a 
cooling water intake structure over a period of time. Limiting the 
volume of the water withdrawn from a waterbody typically reduces the 
number of aquatic organisms in that waterbody that otherwise would be 
entrained. Under Track I, EPA requires that all new facilities, with 
intake flows equal to or greater than 10 MGD, limit their flow to a 
level commensurate with that which could be attained by use of a 
closed-cycle recirculating cooling water system using minimized make-up 
and blowdown flows. See Sec. 125.84 (b)(1).
    Closed-cycle, recirculating cooling water systems are known to 
reduce the amount of cooling water needed and in turn to directly 
reduce the number of aquatic organisms entrained in the cooling water 
intake structure. For the traditional steam electric utility industry, 
facilities located in freshwater areas that have closed-cycle 
recirculating cooling water systems can, depending on the quality of 
the make-up water, reduce water use by 96 to 98 percent from the amount 
they would use if they had once-through cooling water systems. Steam 
electric generating facilities that have closed-cycle recirculating 
cooling water systems using salt water can reduce water usage by 70 to 
96 percent when make-up and blowdown flows are minimized. 31
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    \31\ The lower range would be appropriate where State water 
quality standards limit chloride to a maximum increase of 10 percent 
over background and therefore require a 1.1 cycle of concentration. 
The higher range may be attained where cycles of concentration up to 
2.0 are used for the design.
---------------------------------------------------------------------------

    Manufacturing facilities that reuse and recycle water withdrawn 
from a water of the U.S. in a manner that reduces intake flow to a 
level commensurate with that which can be attained by a closed-cycle, 
recirculating cooling water system that has minimized make-up and blow 
down flows will be in accordance with the rule. See Sec. 125.86(b)(1). 
For purposes of this regulation, EPA considers reuse and recycling at 
manufacturing facilities to be equivalent to closed-cycle, 
recirculating cooling water systems at steam-electric power plants.
    Although EPA has not projected that any once-through electric 
generating facilities with an intake capacity of less than 10 MGD will 
be built in the next 20 years, EPA acknowledges that projecting the 
numbers and characteristics of facilities over long timeframes may lead 
to uncertainties in EPA's analysis. (See Sections 5.1.4 and 5.2.4 of 
the Economic Analysis for a discussion of uncertainties and limitations 
in EPA's baseline projections of new facilities.) In the event that 
such facilities might be built in the future (for example, as a stand-
alone, combined-cycle, cogeneration facility associated with a 
manufacturer), EPA has concluded that the application of the intake 
capacity requirements in the selected option is not economically 
practicable for facilities with the smallest cooling water intake 
structures, those that withdraw less than 10 MGD. Based on EPA's 
estimate, the compliance cost-to-revenue ratio for combined-cycle 
facilities with these flows is 4.9 to 8.8 percent or higher. Even if 
these facilities installed a closed-cycle recirculating cooling system 
to reduce dynamic flow below the regulatory threshold for this rule and 
avoided all other costs of the rule, their cost-to-revenue ratio still 
would be from 2 to 3.2 percent or more (and they

[[Page 65274]]

still might have to bear additional cost to comply with requirements 
the Director establishes on a case-by-case basis). EPA's analysis shows 
that the costs for all such facilities generally would be far above the 
range of impacts for facilities above 10 MGD, which have, compliance 
cost to-revenue ratios at or below 0.5 percent for more than 70 
facilities, between 2 and 3 percent for only six facilities, and above 
3 percent for only 3 facilities. EPA believes that the economic impact 
of complying with the rule would be disproportionate for electric 
generating facilities with flows below 10 MGD. Thus, the Agency is 
exercising its discretion under section 316(b) of the CWA to determine 
what is economically practicable and is creating specific requirements 
in Track I available to facilities with flows between 2 and 10 MGD. See 
Sec. 125.84(c). These facilities are required to meet the same 
velocity, proportional flow, and the design and construction technology 
requirements for impingement that apply in Sec. 125.84(b). See 
Sec. 125.84(c)(1), (2) and (3). However, they are not required to 
reduce intake flow commensurate with use of a closed-cycle 
recirculating cooling system. Instead, they are required use design and 
construction technologies for minimizing entrainment at all locations. 
See 125.84(c)(4). EPA believes that the requirements of Sec. 125.84(c) 
are an economically practicable way for these facilities to reduce 
impingement mortality and entrainment. EPA has made similar decisions 
in establishing technology-based effluent limitations guidelines and 
standards under 301 and 306, see e.g., Texas Oil & Gas Ass'n v. U.S. 
EPA, 161 F.3d 923, 940 (5th Cir. 1998) (Court upheld EPA's 
subcategorization for Cook Inlet based upon disproportionate economic 
impact).
b. Design and Construction Technologies
i. Velocity
    Intake velocity is one of the key factors that can affect the 
impingement of fish and other aquatic biota. In the immediate area of 
the intake structure, the velocity of water entering a cooling water 
intake structure exerts a direct physical force against which fish and 
other organisms must act to avoid impingement or entrainment. EPA 
considers velocity to be an important factor that can be controlled for 
minimizing adverse environmental impact at cooling water intake 
structures. Because velocity can be minimized through appropriate 
design of the intake structure relative to intake flow, it is most 
easily addressed during the design and construction phase of a cooling 
water intake structure. Alternatively, the facility can install certain 
hard technologies (e.g., wedgewire screens and velocity caps) to change 
the configuration of the structure so that the effects of velocity on 
aquatic organisms are minimized.
    Under Track I, for a facility with a design intake flows equal to 
or greater than 2 MGD, the final regulation requires that the maximum 
design through-screen velocity at each cooling water intake structure, 
be no more than 0.5 ft/s. See Sec. 125.84(b)(2). The design through-
screen velocity is defined as the value assigned during the design 
phase of a cooling water intake structure to the average speed at which 
intake water passes through the open area of the intake screen (taking 
fouling into account) or other device against which organisms might be 
impinged or through which they might be entrained.
    To develop an appropriate minimum velocity requirement at cooling 
water intake structures that will be effective in contributing to the 
overall reduction in impingement, EPA reviewed available literature, 
State and Federal guidance, and regulatory requirement. EPA found that 
an approach velocity of 0.5 ft/s has been used as guidance in at least 
three Federal documents. 32 33 34 The 0.5 ft/s approach 
velocity threshold recommended in the Federal documents is based on a 
study of fish swimming speeds and endurance performed by Sonnichsen et 
al. (1973).\35\ This study was based on an unknown number of 
individuals from about 30 different species of fish and eels, with many 
of the data for adult fish. The three Federal documents recommending a 
0.5 ft/s intake velocity often referred to one another or had no 
references. The lack of abundant and diverse data led EPA to adopt a 
safety factor to ensure an appropriate level of protection for aquatic 
organisms. This study concluded that appropriate velocity thresholds 
should be based on the fishes' swimming speeds (which are related to 
the length of the fish) and endurance (which varies seasonally and is 
related to water quality). The data presented showed that the species 
and life stages evaluated could endure a velocity of 1.0 ft/s. To 
develop a threshold that could be applied nationally and is effective 
at preventing impingement of most species of fish at their different 
life stages, EPA applied a safety factor of two to the 1.0 ft/s 
threshold to derive a threshold of 0.5  ft/s. This safety factor, in 
part, is meant to ensure protection when screens become partly occluded 
by debris during operation and velocity increases through portions of 
the screen that remain open. EPA compiled the data from three studies 
on fish swim speeds (University of Washington study, Turnpenny, and 
EPRI) into a graph. The data suggest that a 0.5 ft/s velocity would 
protect 96 percent of the tested fish. EPA recognizes that there may be 
specific circumstances and species for which the 0.5 ft/s requirement 
might not be sufficiently effective. When issuing NPDES permits, the 
permit directors will need to comply with any applicable requirements 
under the Endangered Species Act (ESA). Both the National Marine 
Fisheries Service and the California Department of Fish and Game have 
developed fish screen velocity criteria.36 37 
38 Under section 510 of the Clean Water Act (CWA) States may 
impose additional requirements pursuant to State law. When EPA issues 
an NPDES permit, States may condition the permit pursuant to their 
certification authority under section 401 of the CWA.
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    \32\ Boreman, J. 1977. Impacts of power plant intake velocities 
on fish. Power Plant Team, U.S. Fish and Wildlife Service.
    \33\ Christianson, A. G., F. H. Rainwater, M.A. Shirazi, and 
B.A. Tichenor. 1973. Reviewing environmental impact statements: 
power plant cooling systems, engineering aspects, U.S. Environmental 
Protection Agency (EPA), Pacific Northwest Environmental Research 
Laboratory, Corvallis, Oregon, Technical Series Report EPA-660/2-73-
016.
    \34\ King, W. Instructional Memorandum RB-44: Review of NPDES 
(National Pollutant Discharge Elimination System) permit 
applications processed by the EPA (Environmental Protection Agency) 
or by the State with EPA oversight.'' In: U.S. Fish and Wildlife 
Service Navigable Waters Handbook.
    \35\ Sonnichsen, J.C., Bentley, G.F. Bailey, and R.E. Nakatani. 
1973. A review of thermal power plant intake structure designs and 
related environmental considerations. Hanford Engineering 
Development Laboratory, Richland, Washington, HEDL-TME 73-24, UC-12.
    \36\ National Marine Fisheries Service Northwest Region. 1995. 
Juvenile Fish Screen Criteria.
    \37\ National Marine Fisheries Service, Southwest Region. 1997. 
Fish Screening Criteria for Anadromous Salmonids. Published on the 
Internet at http://swr.ucsd.edu/hcd/fishscrn.htm (access date).
    \38\ California Department of Fish and Game. 1997. Fish 
screening criteria.
---------------------------------------------------------------------------

    Two velocities are of importance in the assessment and design of 
cooling water intake structures: the approach velocity and the through-
screen or through-technology velocity. The approach velocity is the 
velocity measured just in front of the screen face or at the opening of 
the cooling water intake structure in the surface water source, and is 
biologically the most important velocity. The design through-screen or 
through-technology velocity is the velocity measured through the screen 
face or just as the organisms are

[[Page 65275]]

passing through the opening into another device (e.g., entering the 
opening of a velocity cap). The through-screen velocity is always 
greater than the approach velocity because the net open area is 
smaller.
    For this final rule, EPA uses the design through-screen velocity as 
a component of best technology for minimizing adverse environmental 
impact. EPA anticipates that design through-screen velocity will be 
simpler to calculate, and monitor (via measurement of head loss) and be 
more accurate than measuring approach velocity. The approach velocity 
is a point function. When the cross-section of an intake structure is 
large, the approach velocity will not be the same at all points across 
all points in a single cross-section. The approach velocity varies 
depending on where it is measured: how far from the surface, how far in 
front of the screen, or the location across the screen. Approach 
velocity also varies with the number of measurements taken; is 1 taken, 
or 10? Furthermore, it is much easier to design the intake structure to 
achieve a specific through-screen velocity. EPA notes that design 
through-screen velocity will be easier to implement because a number of 
technologies use it as the standard measure for intake design. In 
conjunction with the design intake velocity requirement, EPA requires 
new facilities to monitor the head loss across the screens or other 
technology on a quarterly basis. See Sec. 125.87(b). EPA requires that 
head loss across the screens (or other appropriate measurements for 
technologies other than intake screens) be monitored and correlated 
with intake velocity once the facility is operating.
ii. Other Design and Construction Technologies
    The final rule requires facilities withdrawing more than 10 MGD 
that choose Track I to select and install design and construction 
technologies for minimizing impingement mortality and/or entrainment if 
they locate in certain areas where fish or shellfish resources need 
additional protection. See Sec. 125.84(b)(4) and (5). Facilities 
withdrawing between 2 and 10 MGD may meet a different set of Track I 
requirements. See Sec. 125.84(c). If they choose to do so, the rule 
specifies that they must meet the same design and construction 
requirements to reduce impingement as applies to facilities withdrawing 
greater than 10 MGD. However, to reduce entrainment, instead of 
requiring a reduction in intake flow commensurate with use of a closed-
cycle recirculating cooling water system, the rule requires these 
facilities to select and install design and construction technologies 
at all locations. See Sec. 125.84(c)(3) and (4).
    EPA is requiring these technologies in Track I because they are 
technically available, economically practicable and they effectively 
further reduce impingement mortality and entrainment at new facilities 
that choose to locate in areas where fish and shellfish resources need 
additional protection. EPA notes that facilities with closed-cycle 
recirculating cooling systems can still withdraw large volumes of 
cooling water, particularly if they operate in brackish or other waters 
where high rates of recirculation cannot be achieved, and may still 
impinge or entrain large numbers of aquatic organisms. Thus, EPA 
believes that facilities that choose to locate in areas where fish and 
shellfish need additional protection should install these technologies 
to further reduce impingement mortality and entrainment.
    In the Track I requirements at Sec. 125.84(c), which apply to 
facilities with cooling water intakes between 2 and 10 MGD that choose 
not to meet the capacity reduction requirements in Sec. 125.84(b), the 
rule requires these facilities to meet the same design and construction 
requirements for minimizing impingement mortality as are required for 
facilities withdrawing greater than 10 MGD, See Sec. 125.84(c)(3). 
These impingement requirements apply if the facility locates where fish 
and shellfish resources need additional protection. Facilities between 
2 and 10 MGD that choose not to meet the capacity reduction 
requirements in Sec. 125.84(b), however, must install design and 
construction technologies for reducing entrainment at all locations. 
See Sec. 125.84(c)(4). EPA makes this distinction because, for economic 
practicality reasons, today's rule does not require smaller new 
facilities to reduce intake flow commensurate with a closed-cycle 
recirculating cooling system. In this case, EPA believes that use of 
design and construction technologies is an alternative, economically 
practicable and technically available means for reducing entrainment.
    Today's rule does not require facilities choosing Track II to 
install design and construction technologies as specified under 
125.84(b)(4) and (5) or 125.84(c)(3) and (4). EPA believes that such 
facilities will use these technologies, at least in part, to meet the 
Track II comparability requirements at 125.84(c)(1) and thus achieve 
comparable performance.
    As used in these provisions, ``minimize'' means to reduce to the 
smallest amount, extent, or degree reasonably possible. See 
Sec. 125.83. Technologies that minimize impingement mortality and 
entrainment of all life stages of fish and shellfish at a location 
might include, but are not limited to, intake screens, such as fine 
mesh screens and aquatic filter barrier systems, that exclude smaller 
organisms from entering the cooling water intake structure; passive 
intake systems such as wedgewire screens, perforated pipes, porous 
dikes, and artificial filter beds; and diversion and/or avoidance 
systems that guide fish away from the intake before they are impinged 
or entrained. In some cases, technologies that might be used to achieve 
the 0.5 ft/s velocity standard at Sec. 125.85(b)(2) and 
Sec. 125.85(c)(1), such as passive intake systems, might also minimize 
impingement mortality and entrainment.
    Some technologies minimize impingement mortality by maximizing the 
survival of impinged organisms. These technologies include, but are not 
limited to, fish-handling systems such as bypass systems, fish buckets, 
fish baskets, fish troughs, fish elevators, fish pumps, spray wash 
systems, and fish sills. These technologies either divert organisms 
away from impingement at the intake structure, or collect impinged 
organisms and protect them from further damage so that they can be 
transferred back to the source water at a point removed from the 
facility intake and discharge points.
    Some additional design and construction technologies have 
feasibility issues limiting their use to certain types of locations. 
Some have not been used on a widespread basis above certain intake flow 
rates. The effectiveness of these technologies also may vary depending 
on factors such as the speed and variability in direction of currents 
in a waterbody, the degree of debris loading at a location, etc. 
Because of these issues, EPA has not established a national performance 
standard for these technologies more specific than to require the 
applicant to study literature and available physical and biological 
data on their proposed location, and then to select and install 
technology(ies) that minimize impingement mortality and entrainment. 
(As stated above, ``minimize'' is defined as a reduction ``to the 
smallest amount, extent or degree reasonably possible.'')
    In Track I of the final rule, EPA does not require an applicant 
that installs design and construction technology(ies) to seek the 
approval of the Director regarding which design and

[[Page 65276]]

construction technology(ies) it selects, nor does EPA require the 
applicant to conduct biological monitoring prior to submitting its 
application. Rather, to avoid permitting delays Track I only requires 
the applicant to gather and present historical information and/or 
literature to support its decision on which design and construction 
technology(ies) to implement at the new facility. See 
Sec. 125.86(b)(4).
    Because an applicant does not need the Director's approval of its 
design and construction technology(ies) prior to the first permit, EPA 
has included a provision that requires the Director to determine, at 
each permit reissuance, whether design and construction technologies at 
the facility are minimizing impingement mortality and/or entrainment, 
See Sec. 125.89(a)(2). This provision is intended to ensure that the 
applicant selects and installs appropriate technology(ies).
    The framework of these provisions balances a number of factors. One 
is EPA's interest in ensuring that applicants seeking their first 
permit under Track I can quickly obtain one without delay and, if they 
wish, without engaging in a dialogue with the Director about whether 
additional design and construction technologies are needed at their 
site, or which technologies will reasonably reduce impingement 
mortality and entrainment at the location. In this case, an applicant 
may wish to install some of the more highly protective additional 
design and construction technologies, to minimize any opportunity for 
disagreement with the Director at permit reissuance about whether the 
applicant chose technologies that ``minimize'' impingement mortality 
and entrainment at their location.
    Alternatively, an applicant under Sec. 125.84(b) who is willing to 
take the time to engage in a dialogue with the Director prior to the 
first permit under Track I may be able to obtain the Director's 
concurrence on a finding that the proposed intake will not be located 
in an area where fish or shellfish resources need additional 
protection. See Sec. 125.84(b)(4) and (5) for a list of such areas. In 
this case, the applicant may not need to install any additional design 
and construction technologies. In the event that the location of the 
intake structure is such that additional technologies are required, an 
applicant who is willing to take the time to consult with the Director 
prior to the first permit under Track I may be able to obtain the 
Director's concurrence that technologies that are less costly than the 
most highly-protective ones available are sufficient for its location. 
(EPA again notes that ``minimize'' is defined as a reduction ``to the 
smallest amount, extent or degree reasonably possible.'')
    EPA believes the above framework reasonably balances its interest 
in minimizing permit delays with its interest in ensuring that 
applicants willing to take more time and engage in a dialogue with the 
Director may have an opportunity to reduce their costs. As a general 
matter, EPA strongly encourages permit applicants to consult with the 
Director prior to selecting and installing design and construction 
technology(ies). Today's rule, however, requires no such consultation, 
and, as discussed elsewhere in this preamble, EPA's costing analysis 
conservatively assumes that permittees will install additional design 
and construction technologies at all locations.
    EPA recognizes that the condition of biological resources at a 
location may change over time. The requirement for the Director to 
review the applicant's design and construction technologies at permit 
reissuance provides an opportunity for any appropriate changes in the 
design and construction technologies used at the location. See 
Sec. 125.89(a)(2).
c. Location
    Although EPA recognizes that the location of a cooling water intake 
structure can be a factor that affects the environmental impact caused 
by the intake structure, today's final rule, apart from the 
proportional flow requirements, does not include specific national 
requirements for new facilities based on location of the cooling water 
intake structure. In EPA's view, the optimal design requirement for 
location is to place the inlet of the cooling water intake structure in 
an area of the source waterbody where impingement and entrainment of 
organisms are minimized by locating intakes away from areas with the 
potential for high productivity (taking into account the location of 
the shoreline, the depth of the waterbody, and the presence and 
quantity of aquatic organisms or sensitive habitat). EPA received 
significant and convincing comments arguing against the specific 
proposed requirements and feasibility for locations based on waterbody 
type and location within the waterbody. Among other things, commenters 
argued that EPA's proposed requirements would be difficult to implement 
and relied on generalizations about types of waterbodies that were too 
simplistic. See section VI.C for further discussion of comments and 
EPA's responses regarding location. This topic is discussed further in 
Chapter 5 of the Technical Development Document.
    Although today's rule does not specifically establish location 
requirements, several components of the two-track approach inherently 
consider location as a factor. Under Track I, location is a 
consideration when the applicant selects and implements the design and 
construction technologies for minimizing impingement and entrainment 
and maximizing impingement survival. In addition, EPA estimated that in 
order to meet the proportional flow requirements in Track I and Track 
II, facilities may need to site in locations that can support their 
water withdrawals or find other alternatives, such as, obtaining water 
from ground water, grey water, or a public water supply system. Under 
Track II, the new facility may choose location as a key component for 
minimizing impingement and entrainment. Under Track II, an applicant 
has the opportunity to conduct site-specific studies to demonstrate 
that alternative technologies or configurations, including the 
relocation of an intake to areas of less sensitivity, will reduce 
impingement mortality and entrainment for all life stages of fish and 
shellfish to a level of reduction comparable to the level that would be 
achieved were the applicant to implement the technology-based 
performance requirements in Track I.
    In addition, this new facility rule also regulates location as a 
performance characteristic of new facilities to minimize entrainment 
and other adverse environmental impacts that are likely to occur as a 
result of the withdrawal of makeup water even where a facility uses 
recirculating systems. Historically, some previous CWA section 316(b) 
studies conducted for permits proceedings have considered potential 
impacts from facilities whose cooling water intake flow is large in 
proportion to the source water flow or tidal volume. 39 
40 41 Under this rule, Secs. 125.84(b)(3), 
125.84(c)(2), and 125.84(d)(2), EPA establishes proportional flow 
requirements for new facility cooling water intake structures located 
in freshwater rivers and streams, lakes and reservoirs, and estuaries 
and

[[Page 65277]]

tidal rivers, requiring that the total design intake flow from all 
cooling water intake structures at a facility withdrawing:
---------------------------------------------------------------------------

    \39\ Lewis, Randall B. and Greg Seegert. Entrainment and 
Impingement Studies at two Power Plants on the Wabash River in 
Indiana. Power Plants & Aquatic Resources: Issues and Assessment. 
Environmental Science & Policy. Volume 3, Supplement 1. September 
2000.
    \40\ Public Service Indiana. 316(b) Demonstration for the Cayuga 
and Wabash River Generating Stations. Prepared by Dames and Moore, 
Cincinnati, Ohio. August 30, 1997.
    \41\ Public Service Company of Indiana. A 316(b) Study and 
Impact Assessment for the Cayuga Generating Station. Prepared by EA 
Science and Technology, Northbrook, IL. April 1988.
---------------------------------------------------------------------------

     From a freshwater river or stream must be no greater than 
five (5) percent of the source waterbody mean annual flow;
     From a lake or reservoir must not disrupt the natural 
thermal stratification or turnover pattern (where present) of the 
source water except in cases where the disruption is determined to be 
beneficial to the management of fisheries for fish and shellfish by any 
fishery management agency(ies);
     From estuaries or tidal rivers must be no greater than one 
(1) percent of the volume of the water column in the area centered 
about the opening of the intake with a diameter defined by the distance 
of one tidal excursion at the mean low water level.
    EPA finds these proportional flow limitations to represent 
limitations on capacity and location that are technically available and 
economically practicable for the industry as a whole. EPA examined the 
performance of existing facilities based on section 308 questionnaire 
data in terms of proportional flow in order to determine what 
additional value could be used as a safeguard to protect source waters 
against entrainment, especially in smaller waterbodies or in 
waterbodies where the intake is disproportionately large as compared to 
the source water body. (In practice, EPA expects that these 
requirements would require a facility to relocate or obtain water from 
another source, e.g., a public water supply or groundwater, only in 
smaller waterbodies, because no new facilities in larger waterbodies 
that use wet recirculating cooling systems would ever run afoul of 
these requirements.) In order to assess the performance of new 
facilities in meeting these requirements, EPA examined the performance 
of existing facilities and determined that 90 percent of existing 
facilities in freshwater rivers and streams and 92 percent of existing 
facilities in estuaries or tidal rivers meet these requirements. Based 
on documents included in the record, EPA also believes that most 
existing facilities meet the proportional flow requirement for lakes 
and reservoirs. EPA expects that new facilities would have even more 
potential to plan ahead to select locations and design intake capacity 
that meet these requirements. EPA recognizes that these requirements 
are conservative in order to account for the cumulative impact of 
multiple facilities' intakes. The 1 percent value for estuaries 
reflects that the area under influence of the intake will move back and 
forth near the intake and that withdrawing 1 percent of the volume of 
water surrounding the intake twice a day over time would diminish the 
aquatic life surrounding the intake. The 5 percent value for rivers and 
streams reflects an estimate that this would entrain approximately 5 
percent of the river or stream's entrainable organisms and a policy 
judgment that a greater degree of entrainment reflects an 
inappropriately located facility. Because they are overwhelmingly 
achievable for new facilities, EPA believes they are appropriate to 
this new facility rule.
    Proportional flow limitations are one way to provide protection for 
aquatic life and enhancement of commercial and recreational uses of 
source waters. Larger proportionate withdrawals of water may result in 
commensurately greater levels of entrainment. Entrainment impacts of 
cooling water intake structures are closely linked to the amount of 
water passing through the intake structure, because the eggs and larvae 
of some aquatic species are free-floating and may be drawn with the 
flow of cooling water into an intake structure. Sizable proportional 
withdrawals from a stream or river might also change the physical 
character of the affected reach of the river and availability of 
suitable habitat, potentially affecting the environmental or ecological 
value to the aquatic organisms. In lakes or reservoirs, the 
proportional flow requirement limits the total design intake flow to a 
threshold below which it will not disrupt the natural thermal (and 
dissolved oxygen) stratification and turnover pattern (where present) 
of the source water except in cases where the disruption is determined 
to be beneficial to the management of fisheries for fish and shellfish 
by any fishery management agency(ies). See Sec. 125.84(b)(3)(ii). The 
proportional flow requirement for lakes and reservoirs would primarily 
protect aquatic organisms in small to medium-sized lakes and reservoirs 
by limiting the intake flow to a capacity appropriate for the size of 
the waterbody. In estuaries and tidal rivers, EPA's proportional flow 
requirement uses a volume that relates specifically to the cooling 
water intake structure and the area it influences (see Sec. 125.83). 
Organisms in this area of influence travel back and forth with the 
tides and so may be exposed to the intake multiple times. The 
proportional flow requirement for estuaries and tidal rivers will limit 
the withdrawal of a sizable proportion of the organisms within the area 
of influence, commensurately reducing the entrainment of aquatic 
organisms.
d. Additional and Alternative Best Technology Available Requirements
    At Sec. 125.84(e), the final rule recognizes that a State may, 
under sections 401 or 510 of the CWA, ensure the inclusion of any more 
stringent requirements relating to the location, design, construction, 
and capacity of a cooling water intake structure at a new facility that 
are necessary to ensure attainment of water quality standards, 
including designated uses, criteria, and antidegradation requirements.
    EPA interprets the CWA to authorize State and Tribal permit 
authorities to require more stringent limitations on intake where 
necessary to protect any provision of State law, including State water 
quality standards. Commenters have asserted that EPA does not have such 
authority under CWA section 301(b)(1)(C), arguing that authority is 
limited to controls on discharges of pollutants. Leaving that question 
open, there is ample authority under CWA sections 510 and 401, as is 
consistent with the goals of the CWA articulated in section 101 of the 
CWA, to provide EPA ample authority for such a provision. Section 510 
of the CWA provides, in relevant part:

    Except as provided in this Chapter, nothing in this chapter 
shall (1) preclude or deny the right of any State or political 
subdivision therefore * * * to adopt or enforce * * * (B) any 
requirement respecting control or abatement of pollution * * * 
except that if an * * * other limitation * * * or standard of 
performance is in effect under this chapter, such State * * * may 
not adopt or enforce any * * * other limitation * * * or standard of 
performance which is less stringent than the * * * other limitation 
* * * or standard of performance under this chapter.

    EPA interprets this to reserve for the States the authority to 
implement requirements that are more stringent than the Federal 
requirements under state law. PUD No. I of Jefferson County v. 
Washington Dep't of Ecology, 511 U.S. 700, 705 (1994). (As recognized 
by section 510 of the Clean Water Act, 33 U.S.C. 1370, States may 
develop water quality standards more stringent than required by this 
regulation.). Further, section 401(d) of the CWA provides, in relevant 
part,

    Any certification provided under this section shall set forth 
any effluent limitations and other limitations, and monitoring 
requirements necessary to assure that any applicant for a Federal 
license or permit will comply with any applicable effluent 
limitations and other limitations, under section 1311 or 1312 of 
this title, standard of performance under 1316 of this title, or 
prohibition, effluent standard, or

[[Page 65278]]

pretreatment standard under section 1317 of this title, and with any 
other appropriate requirement of state law set forth in such 
certification, and shall become a condition on any Federal license 
or permit subject to the provisions of this section.''

    In PUD No. I of Jefferson County v. Dep't of Ecology, 511 U.S. 700, 
711 (1994), the Supreme Court held that this provision is not 
``specifically tied to a `discharge'.'' (``The text refers to the 
compliance of the applicant, not the discharge. Section 401(d) thus 
allows the State to impose `other limitations' on the project in 
general to assure compliance with various provisions of the Clean Water 
Act and with ``any other appropriate requirement of State law.'') Thus, 
section 401(d) provides states with ample authority in their 401 
certifications to require EPA to include any more stringent limitations 
in order to meet the requirements of state law. These two sections of 
the CWA further the objectives of the act to ``restore and maintain the 
chemical, physical, and biological integrity of the nation's waters,'' 
the interim goal to protect water quality and are consistent with the 
CWA policy to ``recognize, preserve, and protect the primary 
responsibility and rights of States to prevent, reduce, and eliminate 
pollution'' and ``to plan the development and use * * * of water 
resources.'' CWA sections 101(a) and (b).
2. What Technologies Are Available To Meet the Regulatory Requirements
a. Track I: Capacity
    The technical availability of the two-track option is demonstrated 
by information in EPA's record showing that each component of Track I, 
the ``fast-track'' option, can be achieved through the use of 
demonstrated technologies. Intake capacity reduction commensurate with 
use of a wet closed-cycle recirculating cooling system as required by 
Sec. 125.84(b)(1) can be achieved using a recirculating wet cooling 
tower or cooling pond. Such a closed-cycle recirculating cooling system 
is a commonly practiced technology among the new facilities controlled 
by this rule. The Technical Development Document shows that 67 percent 
of new in-scope facilities (10 new coal-fired power plants, 64 new 
combined-cycle power plants, and 7 manufacturing facilities) would 
install a closed-cycle recirculating cooling system independently of 
this rule.
    While manufacturers use closed-cycle recirculating cooling systems 
to a lesser extent than do electric power generators, manufacturers 
also have opportunities to recycle or reuse their cooling water to 
reduce their water intake capacity. To examine the extent to which new 
manufacturing facilities are likely to reuse and recycle cooling water, 
the Agency reviewed the engineering databases that support the effluent 
limitations guidelines for several categories of industrial point 
sources. In general, this review identified extensive use of recycling 
or reuse of cooling water in documents summarizing industrial practices 
in the late 1970s and early 1980s, as well as increased recycling and 
reuse of cooling water in the 1990s. For example, the reuse of cooling 
water in the manufacturing processes was identified in the pulp and 
paper and chemicals industries, in some cases as part of the basis for 
an overall zero discharge requirement (inorganic chemicals). Other 
facilities reported reuse of a portion of the cooling water that was 
eventually discharged as process wastewater, with some noncontact 
cooling water discharged through a separate outfall or after mixing 
with treated process water.
    For manufacturing facilities, flow reduction techniques differ 
between facilities and industry sectors. Facilities use unheated 
noncontact cooling water for condensing of excess steam produced via 
cogeneration; they use unheated contact and noncontact cooling water 
for in-process needs; and they frequently reuse process waters and 
wastewaters for contact and noncontact cooling.
    The chemical and allied products sector and the petroleum refining 
sector demonstrate similar cooling water practices. Both sectors 
utilize cooling water for condensing of excess steam from cogeneration 
and for critical process needs. Most process cooling water is 
noncontact cooling water and generally is not reused as process water 
(though it may be recirculated). Paper and allied products facilities 
generally reuse cooling water and cogenerated steam throughout their 
processes (though the level to which this occurs differs among 
facilities). Primary metals industries utilize cooling water for 
contact and noncontact cooling and for condensation of steam from 
onsite electric power generation. Contrary to the other sectors, the 
primary metals industries have no general purpose for cogenerated steam 
in their processes.
    In general, the cooling requirement for cogeneration in these 
manufacturing sectors is less than for the same power generated by 
utility and nonutility power plants. Regardless of this fact, this rule 
requires that the intake of water used for this purpose (and not reused 
as process water) must be minimized according to the same technology-
based performance requirements as for other steam electric generating 
facilities. The condensing of excess steam from cogeneration is the 
same process at manufacturers as at utility and nonutility power 
plants. Therefore, EPA does not distinguish between requirements for 
this activity.
    For the purposes of this regulation, EPA considers the withdrawal 
of water for use and reuse as both process and cooling water analogous 
to the reduction of cooling water intake flows achieved through the use 
of a recirculating cooling water system. For example, some facilities 
transfer excess process heat to a water stream and subsequently reuse 
the heated stream for other process purposes. In this case there is 
considerable conservation of water and energy by the reuse of cooling 
water. Alternatively, some facilities often withdraw water first for a 
process application and subsequently reuse it as cooling water. EPA 
encourages such practices and, in turn, considers these techniques 
analogous to flow reduction for the purposes of meeting the capacity 
reduction requirements of this rule. To meet the intake capacity 
requirements at Sec. 125.84(b)(1) a new manufacturing facility must, to 
the maximum extent practicable, reuse and recycle cooling water 
withdrawn for purposes other than steam electric condensing. Cooling 
water intake used for the purposes of condensing of exhaust steam from 
electricity generation must be reduced to a level commensurate with 
that which can be attained by a closed-cycle recirculating cooling 
water system using minimized make-up and blowdown flows. EPA concludes 
that for manufacturers the capacity requirement meets the criterion of 
best technology available commercially at an economically practicable 
cost.
b. Track I: Velocity
    EPA examined the technical feasibility of the required through-
screen velocity of 0.5 ft/s. This requirement relies on the appropriate 
design of the intake structure relative to intake flow to reduce 
velocity or installation of certain hard technologies (e.g., wedgewire 
screens and velocity caps) to change the configuration of the structure 
so that the effects of velocity on aquatic organisms are minimized. 
EPA's record demonstrates that these designs and technologies are 
widely used in the industries subject to this rule. Since there are a 
number of intake technologies currently in use that are designed to 
meet a 0.5 ft/s through-screen velocity, the technologies that can 
achieve the Track I velocity technology-based performance

[[Page 65279]]

requirement meet the criterion of best technology available 
commercially at an economically practicable cost.
    The Agency also reviewed the data from the section 316(b) industry 
survey with respect to the velocity requirement Sec. 125.84(b)(2). The 
preliminary results suggest that more than two-thirds of combined cycle 
and coal-fired electric generating facilities built within the past 15 
years would meet the velocity requirement. These currently operating 
facilities demonstrate that a design intake velocity of 0.5 ft/s is 
achievable and provides for sufficient cooling water withdrawal.
c. Track I: Other Design and Construction Technologies
    EPA also examined the technology availability of the design and 
construction requirements at Sec. 125.84(b)(4) and (5) in the final 
rule. While EPA costed this requirement based on the assumption that a 
facility would install cylindrical wedgewire screen, or fish return 
systems on traveling screens, EPA's record demonstrates that there are 
a number of potentially effective design and construction intake 
technologies available for installation at cooling water intake 
structures for minimizing adverse environmental impact. The intake 
technologies that new facilities may consider are in one of four 
categories that include, but are not limited to,
     Intake screen systems: single-entry, single-exit vertical 
traveling screens; modified traveling screens (Ristroph screens); 
single-entry, single-exit inclined traveling screens; single-entry, 
double-exit vertical traveling screens; double-entry, single-exit 
vertical traveling screens (dual-flow screens); horizontal traveling 
screens; fine mesh screens mounted on traveling screens; horizontal 
drum screens; vertical drum screens; rotating disk screens; and fixed 
screens.
     Passive intake systems: wedgewire screens, perforated 
pipes, perforated plates, porous dikes, artificial filter beds, and 
leaky dams.
     Diversion or avoidance systems: louvers, velocity caps, 
barrier nets, air bubble barriers, electrical barriers, light barriers, 
sound barriers, cable and chain barriers, aquatic filter barrier 
systems, and water jet curtains.
     Fish handling systems: fish pumps, lift baskets, fish 
bypasses, fish baskets, fish returns, fish troughs, and screen washes.
d. Track II: Alternative Technologies
    EPA also notes that certain facilities following Track II may be 
able to demonstrate reduction of impingement mortality and entrainment 
for all life stages of fish and shellfish to a level of reduction 
comparable to the level that would be achieved under Track I using 
lower-cost alternative technologies. Under 125.84(d), new facilities 
that choose to comply under Track II must reduce impacts to fish and 
shellfish, including important forage and predator species, within the 
watershed to a level comparable to that which would be achieved were 
they to implement the requirements of Sec. 125.84(b)(1), and (2) under 
Track I.\42\ EPA does not consider this requirement to mandate exactly 
the same level of reduction in impingement and entrainment as would be 
achieved under Track I. Rather, given the numerous factors that must be 
considered to determine the required level of reduction in impingement 
and entrainment for Track II and the complexity inherent in assessing 
the level of performance of different control technologies, EPA 
believes it is appropriate for a new facility following Track II to 
achieve reductions in impingement and entrainment that are 90 percent 
or greater of the levels achieved under Track I. EPA believes this 
approach is reasonable for the several reasons.
---------------------------------------------------------------------------

    \42\ These Track I provisions require that the new facility 
reduce its intake flow, at a minimum, to a level commensurate with 
that which can be attained by a closed-cycle recirculating cooling 
water system; desgin and construct each cooling water intake 
structure to a maximum through-screen design intake velocity of 0.5 
ft/s; and select and implement design and construction technologies 
(e.g., wedgewire screens, fine mesh screens, fish handling and 
return systems, barriers nets, acquatic filter barrier systems) to 
minimize impingement and entrainment of all life stages of fish and 
shellfish and to maximize survival of impinged life stages of fish 
and shellfish.
---------------------------------------------------------------------------

    New facility determinations regarding flow or impingement and 
entrainment under Track I or Track II are, by necessity, estimates 
based on available data as well as certain assumptions. Such estimates 
have substantial value but cannot reasonably be expected to achieve a 
high level of precision. This is particularly true where, as here, 
impingement and entrainment rates must be correlated with reductions in 
flow (which are themselves estimated), reductions in intake velocity, 
and other design and construction requirements. It also is important to 
recognize that the efficacies of different design and construction 
technologies also are based on estimates that are inexact due to data 
limitations, variations in ambient conditions, and the presence or 
absence of different species, among other factors.
    Available data suggests that alternative design and construction 
technologies for cooling water intake structures can achieve the level 
of reduction in impingement and entrainment required under Track II. 
For example, technologies such as fine and wide-mesh wedgewire screens, 
as well as aquatic filter barrier systems, have been shown to reduce 
mortality from impingement by up to 99 percent or greater compared with 
conventional once-through systems. In addition, other types of barrier 
nets may achieve reductions in impingement of 80 to 90 percent, and 
modified screens and fish return systems, fish diversion systems, and 
fine mesh traveling screens and fish return systems have achieved 
reductions in impingement mortality ranging from 60 to 90 percent 
greater than conventional once-through systems. Similarly, although 
there is less available full scale performance data regarding 
entrainment, aquatic filter barrier systems, fine mesh wedgewire 
screens, and fine mesh traveling screens with fish return systems have 
in certain places been shown to achieve 80 to 90 percent greater 
reduction in mortality from entrainment compared with conventional 
once-through systems. Examples of effective use of technologies that 
reduce impingement and/or entrainment include:
     Studies from 1996 to 2001 at Lovett Station (New York) 
show no obvious impingement/contact mortality using aquatic filter 
barrier systems;
     Fine mesh (0.5 mm) screen performance to reduce 
entrainment has consistently improved at Big Bend Units 3 and 4 
(Florida) with better surveillance and maintenance, including biweekly 
cleaning of screens to prevent biofouling. The operator's 1988 
monitoring data show an efficiency in screening fish eggs (primarily 
drum and bay anchovy) exceeding 95 percent. For fish larvae (primarily 
drum, bay anchovies, blennies, and gobies), it was about 86 percent. 
Latent survival of fish eggs has improved to 65 to 80 percent for drum, 
and 66 to 93 percent for bay anchovy;
     At the Brunswick Station (North Carolina), 1 mm fine mesh 
screens have been used on two of four traveling screens (only when 
temperatures are less than 18 degrees C). Total reduction of fish 
entrained by the fine mesh versus conventional screens has been found 
to be 84 percent;
     Wedgewire screens with slot sizes of one, two, and three 
millimeter were studied by the State of Maryland at the Chalk Point 
Station. One millimeter screens led to 80 percent exclusion of all 
species, including larvae. For fish

[[Page 65280]]

with greater than 10 mm length, entrainment was eliminated.\43\
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    \43\ EPA acknowledge that there are a limited number of large 
facilities where alternative technologies have been used. However, 
the use of fine mesh screens at Brunswick and big Bend have shown 
performance levels exceeding 70-80 percent. Similarly, fine mesh 
wedgewire screens at Logan have used to reduce entrainment by 90 
percent. While these sites draw water from tidally influenced 
rivers, they should be equally transferable to large, fresh water 
rivers in the midwest. In fact, reliability and likely performance 
should be better than a site such as Big Bend where the bifouling 
would be a greats issue. The ``actual'' examples are supported by 
laboratory testing showing the viability of fine mesh screens that 
was performed at Delmara Research, TVA, and the proposed Seminole 
Plant in Florida. These tests found entrainment reductions using 
fine mesh screens of greater than 90 percent. the use of an aquatic 
filter barrier system (i.e. gunderboom) at the Lovett Station in New 
York is entirely transferable to a large, Midwestern river system. 
This system is now providing consistently greater than 80 percent 
reductions in entrainment and has the potential to exceed 90 
percent. The areas where aquatic filter barrier systems might not be 
effective/feasible include ocean locations with high waves, limited 
access areas, and places where navigation could be effected. Note 
that feasibility should be similar to other barrier net systems, 
which have been installed at a number of Great Lake sites, e.g., 
Ludington.
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    Several additional factors suggest that these performance levels 
can be improved upon. First, some of the cooling water intake structure 
technology performance data reviewed is from the 1970's and 1980's and 
does not reflect recent developments and innovation (e.g., aquatic 
filter barrier systems, sound barriers). Second, the conventional 
barrier and return system technologies characterized above have not 
been optimized on a widespread level to date, as would be encouraged by 
this rule. Such optimization can be best achieved by new facilities, 
which can match site conditions to available technologies. Third, EPA 
believes that many facilities could achieve further reductions 
(estimated 15-30 percent) in impingement and entrainment by providing 
for seasonal flow restrictions, variable speed pumps, and other 
innovative flow reduction alternatives.
e. Track II: Location
    New facilities seeking to comply under Track II can use the 
location of their cooling water intake structures to achieve further 
reductions in impingement and entrainment. Location of the cooling 
water intake structure can be addressed during the planning and design 
phases of new facility construction. At that time, it may be possible 
to choose a particular waterbody type and a specific location on that 
waterbody where (considering the proposed capacity of the cooling water 
intake structure) the potential for impingement and entrainment is 
relatively low. The optimal design requirement for cooling water intake 
structure location is to place the inlet in an area of the source 
waterbody where impingement and entrainment of organisms are minimized, 
i.e., taking into account: the physical and chemical characteristics of 
the waterbody; the presence and location of sensitive habitats; and the 
composition, abundance, and spatial/temporal presence of aquatic 
organisms. It is well known that there are certain areas within every 
waterbody with increased biological productivity, and therefore where 
the potential for impingement and entrainment of organisms is greater 
(e.g., littoral zone in lakes, shore zone in rivers, nearshore coastal 
waters in oceans). Examples include the following.
     Near the Fort Calhoun Station on the Missouri River, 
transect studies in 1974 to 1977 indicated higher densities of fish 
larvae along the cutting bank of the river adjacent to the Station's 
intake structure and lower densities at the mid-channel location. While 
densities of fish larvae changed throughout the three month data 
collection period, the densities collected from the mid channel 
remained substantially less than those in the cutting bank 
location.\44\
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    \44\ King, R.G. 1977. Entrainment of Missouri River fish larvae 
Fort Calhoun Station. In: Jensen, L.D. (Ed.), Fourth National 
Workshop on Entrainment and Impringement EA Communications, 
Melville, NY, pp.45-56.
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     Catches of young striped bass from Suisun Bay near the 
Pittsburg Power Plant (May to July 1976) ranged from 0.062/
m3 to 0.496/m3 in the center channel, and from 
0.082/m3 to 0.648/m3 along the north shore. 
Weekly mean densities for striped bass were 0.215/m3 in the 
center channel, and 0.320/m3 along the north shore.\45\
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    \45\ Stevens, D.E. and B.J. Finlayson. 1977. Mortality of young 
striped bass entrained at two power plants in the Sacramento-San 
Joaquin Delta, California, In: Jensen, L.D. (Ed.), Fourth National 
Workshop on Entrainment and Impingement. EA Communications, 
Melville, NY, pp. 57-69.
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     A study of densities in the Connecticut River in 1972 
showed that fish tended to be more abundant in the more shallow areas 
near the east shore. Distributions of fish also changed depending upon 
the time of day and the depth in the water column.\46\
---------------------------------------------------------------------------

    \46\ Marcy, B.C. 1974. Vulnerability and survival of young 
Connecticut River entrained at a nuclear power plant. In: Jensen, 
L.D. (Ed.), Entrainment and Intake Screening: Proceedings of the 
Second Entrainment and Intake Screening Workshop. Electric Power 
Research Institute Publication No. 74-049-00-5, Palo Alto, CA, pp. 
281-288.
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    Biologically productive and/or sensitive areas that should be 
avoided during the intake siting process are those that serve to 
promote: the congregation and growth of aquatic organisms; the 
propagation of the early life stages of aquatic organisms (e.g., 
planktonic stages); and any life stage of a threatened or endangered 
species. Examples of these sensitive areas would include (but are not 
limited to) critical nursery areas, spawning grounds, important 
migratory pathways, refuge areas, and essential fish habitats. Other 
factors to consider in the intake siting process include the proximity 
to: aquatic sanctuaries/refuges; national parks, seashores and 
monuments; wilderness areas; areas of environmental concern or 
outstanding natural resource waters; and coral reefs. Conversely, 
potential examples of less-sensitive areas may include: areas outside 
of the limnetic zone (i.e., no light penetration); areas of significant 
oxygen depletion; and areas proven to have low densities of organisms.
f. Track II: Restoration
    The purpose of section 316(b) is to minimize adverse environmental 
impact from cooling water intake structures. Restoration measures that 
result in the performance comparable to that achieved in Track I 
further this objective while offering a significant degree of 
flexibility to both permitting authorities and facilities.
    EPA recognizes that restoration measures have been used at existing 
facilities implementing section 316(b) on a case-by-case, best 
professional judgment basis as an innovative tool or as a tool to 
conserve fish or aquatic organisms, compensate for the fish or aquatic 
organisms killed, or enhance the aquatic habitat harmed or destroyed by 
the operation of cooling water intake structures. Under Track II, this 
flexibility will be available to new facilities to the extent that they 
can demonstrate performance comparable to that achieved in Track I. For 
example, if a new facility that chooses Track II is on an impaired 
waterbody, that facility may choose to demonstrate that velocity 
controls in concert with measures to improve the productivity of the 
waterbody will result in performance comparable to that achieved in 
Track I. The additional measures may include such things as reclamation 
of abandoned mine lands to eliminate or reduce acid mine drainage along 
a stretch of the waterbody, establishment of riparian buffers or other 
barriers to reduce runoff of solids and nutrients from agricultural or 
silvicultural lands, removal of barriers to fish migration, or creation 
of new habitats to serve as spawning or nursery areas. Another example 
might be a facility that chooses to demonstrate that flow reductions 
and

[[Page 65281]]

less protective velocity controls, in concert with a fish hatchery to 
restock fish being impinged and entrained with fish that perform a 
similar function in the community structure, will result in performance 
comparable to that achieved in Track I.
    EPA recognizes that it may not always be possible to establish 
quantitatively that the reduction in impact on fish and shellfish is 
comparable using the types of measures discussed above as would be 
achieved in Track I, due to data and modeling limitations. Despite such 
limitations, EPA believes that there are situations where a qualitative 
demonstration of comparable performance can reasonably assure 
substantially similar performance. EPA is thus providing, in 
Sec. 125.86, that the Track II Comprehensive Demonstration Study should 
show that either: (1) The Track II technologies would result in 
reduction in both impingement mortality and entrainment of all life 
stages of fish and shellfish of 90 percent or greater of the reduction 
that would be achieved through Track I (quantitative demonstration) or, 
(2) if consideration of impacts other than impingement mortality and 
entrainment is included, the Track II technologies will maintain fish 
and shellfish in the waterbody at a substantially similar level to that 
which would be achieved under Track I (quantitative or qualitative 
demonstration).
g. Track I and II: Proportional Flow
    Finally, EPA examined the technical feasibility of the proportional 
flow reduction requirements at Secs. 125.84(b)(3), 125.84(c)(2), and 
125.84(d)(2) of the rule. EPA based this requirement, in addition to 
the closed-cycle recirculating cooling water technologies discussed 
above, on the use of groundwater, municipal sources of water, treated 
wastewater (grey water), and on locating facilities on waterbodies that 
can meet the proportional flow requirements.
    EPA analyzed the potential siting implications of the proportional 
flow requirements and determined that within the United States 
approximately 131,147 river miles have sufficient flow to support the 
water usage needs of large manufacturing facilities withdrawing up to 
18 MGD of water without exceeding the proportional flow limitations in 
this rule. Approximately 53,964 river miles could support a large non-
utility power-producing facility withdrawing 85 MGD, and approximately 
14,542 river miles could support a large utility plant requiring 700 
MGD without exceeding of the proportional flow limitations in this 
rule. Under today's final rule, new facilities needing additional 
cooling water in other areas would need to supplement withdrawals from 
waters of the U.S. with other sources of cooling water or redesign 
their cooling systems to use less water.
    As another gauge of the siting impacts of the flow requirement for 
new facilities, the Agency determined, from a 1997 database of the 
Energy Information Agency and a 1994 Edison Electric Institute 
database, that 89 percent of existing non-nuclear utility facilities 
could be sited at their current location under today's final 
requirements if they also operated in compliance with the capacity 
reduction requirements at Sec. 125.84(b)(1). (Please note that the 
Agency does not intend to prejudge or signal in any way whether its 
final rule for existing facilities will or will not include capacity 
limitations commensurate with a level that could be attained by a 
recirculating cooling water system. EPA conducted this analysis to 
determine whether today's proportional flow requirements would 
unreasonably limit siting alternatives for new facilities only.)
    Finally, to further examine the potential siting implications of 
today's rule for new facilities, the Agency reviewed data on water use 
by existing facilities in arid regions of the country. The Agency found 
that 80 percent of the existing facilities in Arizona, California, 
Nevada, New Mexico, Oklahoma, and Texas do not use waters of the U.S. 
in their operations, indicating that new facilities in these areas 
would similarly use waters other than waters of the U.S. in their 
operations. Therefore, today's final rule would not affect these 
facilities if they were being constructed as new facilities subject to 
the rule.
3. Why Is the Two-Track Option Economically Practicable?
    EPA has determined that the two-track option is economically 
practicable for the industries affected by the rule. For the two-track 
option that does not distinguish between waterbody types, the cost of 
compliance to the industry is expected to be no more than $47.7 million 
annually. Because the Agency cannot predict precisely which track the 
projected facilities would choose and what the compliance response for 
Track II facilities would be, EPA estimated the costs based on the 
assumption that each new facility that does not plan to install a 
recirculating system in the baseline would choose to conduct the 
studies required of Track II but then implement the requirements of 
Track I. This is the most conservative cost estimate because it assumes 
the highest cost a facility could potentially incur. Presumably, the 
facilities will choose the most economically favorable track, which 
would imply that the lowest cost is most representative. For example, 
at Section VIII.B.3. below, EPA describes how a permit applicant 
locating a facility with a once-through cooling system in certain 
waters such as large rivers and reservoirs may be able to demonstrate 
reduction of impingement mortality and entrainment to a level of 
reduction comparable to the level that would be achieved if they 
complied with the Track I requirements. However, the expediency of 
permitting through Track I may result in reductions in financing costs 
and market advantages that may outweigh the potential technology cost 
savings of Track II. The cost estimates above do not incorporate any 
savings occurring from the increased certainty of Track I faster 
permitting and reduction in finance costs. As stated above, for new in-
scope power plants, EPA's record shows that 64 new combined-cycle 
facilities and 10 new coal-fired facilities would install a closed-
cycle recirculating cooling water system independently of the rule. As 
discussed in the Economic Analysis, for those that would not otherwise 
install a recirculating cooling system, EPA has determined that the 
capital costs of such an installation would be economically practicable 
and would not create a barrier to entry. By barrier to entry, EPA means 
the requirements would not present costs that would prevent a new 
facility from being built. For those facilities that would not 
otherwise install a recirculating cooling system, EPA estimates that 
the annualized cost of such an installation is $19.1 million for a 
large coal-fired plant (3,564 MW), $3.8 million for a medium coal-fired 
plant (515 MW), and $0.7 million for a small coal-fired plant (63 MW). 
For a large combined-cycle facility (1,031 MW), installation of a 
recirculating cooling water system would cost approximately $3.2 
million annually.
    EPA finds that the final rule is economically practicable and 
achievable nationally for the industries affected because a very small 
percentage of facilities within the industries are expected to be 
affected by the regulation and the impact on those that would be 
affected would be small. For today's final rule, EPA used the 
compliance cost/revenue test as a basis for determining that the 
requirements on a national level are economically practicable. EPA used 
the compliance cost/revenue test to assess economic achievability by 
comparing the magnitude of annualized compliance

[[Page 65282]]

costs with the revenues the facility is expected to generate. Under 
this test, EPA has determined that on average, the rule will constitute 
0.3, 1.2, and 0.14 percent of projected annual revenue for new 
combined-cycle power plants, coal-fired power plants, and manufacturing 
facilities, respectively. The cost to-revenue ratio is estimated to 
range from 0.7 percent to 5.2 percent of revenues for steam electric 
generating facilities and less than 0.1 percent to 0.5 percent of 
annual revenues for manufacturing facilities. None of the 38 projected 
new manufacturing facilities was estimated to incur annualized 
compliance costs greater than 1 percent of annual revenues. Based on 
EPA's analysis, the steam electric generating facilities projected to 
be in scope of this rule are able to afford these economic impacts. In 
general, the Agency concludes that economic impacts on the electric 
generating industry from this final rule would be economically 
practicable, because the facilities required to comply with the 
requirements would be able to afford the technologies necessary to meet 
the regulations.
    Finally, since the analysis for new facilities entails some 
uncertainty because it reflects a projection into the future, EPA is 
maintaining in the final rule a provision in the regulation authorizing 
alternative requirements where data specific to the facility indicate 
that compliance with the requirement at issue would result in costs 
wholly out of proportion to the costs EPA considered in this analysis. 
See Sec. 125.85 of this rule.
    Considering the economic impacts on the electric generating 
industry as a whole, today's final rule only applies to those electric 
generating facilities that generate electricity with a steam prime 
mover and that meet certain requirements (e.g., have or need to have an 
NPDES permit, withdraw equal to or greater than 2 MGD from waters of 
the U.S.). As summarized in Exhibit 1 and Exhibit 2 above, an analysis 
of the NEWGen database shows that only 69 out of the 241 new combined-
cycle facilities (28.6 percent) would be subject to this rule, and only 
14 out of 35 new coal-fired facilities (40.5 percent).
    For the manufacturer industry sectors with at least one new 
facility that is subject to this final rule, an analysis of the data 
collected using the Agency's section 316(b) Industry Detailed 
Questionnaire for existing facilities indicates that only 472 of the 
1,976 nationally estimated existing facilities have an NPDES permit and 
directly withdraw cooling water from waters of the U.S. Of these 472 
facilities, only 406 facilities are estimated to withdraw more than two 
(2) MGD. Of these 406 facilities, only 296 facilities are estimated to 
use more than 25 percent of their total intake water for cooling water 
purposes. Thus, this finding of economic practicability is further 
supported because only 15 percent of the manufacturing industry sectors 
will incur costs under this rule. According to EPA's analysis, economic 
impacts on the manufacturing facilities from this final rule would be 
economically practicable because the facilities projected to be in 
scope of this rule would be able to afford the technologies necessary 
to meet the regulations.

C. Why EPA Is Not Adopting Dry Cooling as the Best Technology Available 
for Minimizing Adverse Environmental Impact?

    In establishing best technology available for minimizing adverse 
environmental impact the final rule, EPA considered an alternative 
based on a zero-intake flow (or nearly zero, extremely low flow) 
requirement commensurate with levels achievable through the use of dry 
cooling systems. Dry cooling systems (towers) use either a natural or a 
mechanical air draft to transfer heat from condenser tubes to air. In 
conventional closed-cycle recirculating wet cooling towers, cooling 
water that has been used to cool the condensers is pumped to the top of 
a recirculating cooling tower; as the heated water falls, it cools 
through an evaporative process and warm, moist air rises out of the 
tower, often creating a vapor plume. Hybrid wet-dry cooling towers 
employ both a wet section and dry section and reduce or eliminate the 
visible plumes associated with wet cooling towers.
    In evaluating dry cooling-based regulatory alternatives, EPA 
analyzed a zero or nearly zero intake flow requirement based on the use 
of dry cooling systems as the primary regulatory requirement in either 
(1) all waters of the U.S. or (2) tidal rivers, estuaries, the Great 
Lakes, and oceans. The Agency also considered subcategorization 
strategies for the new facility regulation based on size and types of 
new facilities and location within regions of the country, since these 
factors may affect the viability of dry cooling technologies.
    EPA rejects dry cooling as best technology available for a national 
requirement and under the subcategorization strategies described above, 
because the technology of dry cooling carries costs that are sufficient 
to pose a barrier to entry to the marketplace for some projected new 
facilities. Dry cooling technology also has some detrimental effect on 
electricity production by reducing energy efficiency of steam turbines 
and is not technically feasible for all manufacturing applications. 
Finally, dry cooling technology may pose unfair competitive 
disadvantages by region and climate. Further, the two-track option 
selected is extremely effective at reducing impingement and 
entrainment, and while the dry cooling option is slightly more 
effective at reducing impingement and entrainment, it does so at a cost 
that is more than three times the cost of wet cooling. Therefore, EPA 
does not find it to represent the ``best technology available'' for 
minimizing adverse environmental impact. EPA recognizes that dry 
cooling technology uses extremely low-level or no cooling water intake, 
thereby reducing impingement and entrainment of organisms to 
dramatically low levels. However, EPA interprets the use of the word 
``minimize'' in CWA section 316(b) to give EPA discretion to consider 
technologies that very effectively reduce, but do not completely 
eliminate, impingement and entrainment as meeting the requirements of 
section 316(b) the CWA.
    Although EPA has rejected dry cooling technology as a national 
minimum requirement, EPA does not intend to restrict the use of dry 
cooling or to dispute that dry cooling may be the appropriate cooling 
technology for some facilities. This could be the case in areas with 
limited water available for cooling or waterbodies with extremely 
sensitive biological resources (e.g., endangered species, specially 
protected areas). An application of dry cooling will virtually 
eliminate use of cooling water and impingement and entrainment, in 
almost all foreseeable circumstances, would reduce a facility's use of 
cooling water below the levels that make a facility subject to these 
national minimum requirements.
1. Barrier to Entry
    EPA has determined that higher capital and operating costs 
associated with dry cooling may pose barrier to entry for some new 
sources in certain circumstances. (In general, barrier to entry means 
that it is too costly for a new facility to enter into the 
marketplace). A minimum national requirement based on dry cooling 
systems would result in annualized compliance cost of greater than 4 
percent of revenues for all of 83 projected electric generators within 
the scope of the rule. For 12 generators, costs would exceed 10% of 
revenues. EPA's economic analysis demonstrates that a regulatory 
alternative based on a

[[Page 65283]]

national minimum dry cooling-based requirement would result in 
annualized compliance costs to facilities of over $490 million, 
exceeding the annual costs of a regulation based on recirculating wet 
cooling towers by more than 900 percent ($443 million annually).
    Because the technology can cause inefficiencies in operation under 
certain high ambient temperature conditions and because of the greater 
capital and operating costs of the dry cooling system compared with the 
industry standard of using recirculating closed-cycle wet cooling 
systems, requiring dry cooling as a minimum national requirement could, 
in some cases, also result in unfair competitive advantages for some 
facilities. Thus, while at least one state has required dry cooling, 
EPA does not believe it is appropriate to mandate this requirement on a 
national basis. In EPA's view the disparity in costs and operating 
efficiency of the dry cooling systems compared with wet cooling systems 
is considerable when viewed on a nationwide or regional basis. For 
example, under a uniform national requirement based on dry cooling, 
facilities in the southern regions of the U.S. would be at an unfair 
competitive disadvantage to those in cooler northern climates, far more 
than if the rule were not based on such a requirement. Even under the 
regional subcategorization strategy for facilities in cool climatic 
regions of the U.S., adoption of a minimum requirement based on dry 
cooling could impose unfair competitive restrictions for new 
facilities. This relates primarily to the elevated capital and 
operating costs associated with dry cooling. Adoption of requirements 
based on dry cooling for a subcategory of facilities under a particular 
capacity would pose similar competitive disadvantages for those 
facilities. Furthermore, EPA is concerned that requiring dry cooling 
for a subcategory of new facilities would create a disincentive to 
building a new combined-cycle facility (with associated lower flows) in 
lieu of modifying existing facilities, which may have greater 
environmental impacts. Dry cooling systems can cost as much as three 
times more to install than a comparable wet cooling system. For 
example, the Astoria Energy LLC Queens application filed with the State 
of New York indicated that a dry cooling system would cost $32 million 
more to install than a hybrid wet-dry cooling system for a proposed 
1,000-MW plant. Operating costs would be $30 million more for the dry 
cooling system than the hybrid wet-dry system.\47\ The State of New 
York estimates that use of a dry cooling system at the 1,080-MW Athens 
Generating Company facility would cost approximately $1.9 million more 
per year, over 20 years, than a hybrid wet-dry cooling system. The 
total dry cooled projected cost would be approximately $500 million. 
Because dry cooling systems are so much larger than wet cooling 
systems, these systems' operation and maintenance require more parts, 
labor, etc. Costs of this magnitude, when imposed upon one subcategory 
of facilities but not another, provide a disparate competitive 
environment, especially for deregulated energy markets. New facilities 
are competing against the many combined-cycle and coal-fired facilities 
already in the marketplace or slated for substantial expansion that use 
wet, closed-cycle cooling systems or even once-through cooling systems. 
The potential economic impact should EPA not similarly require dry 
cooling for some or all existing facilities might cause some firms to, 
at the least, delay their entry into the marketplace until they better 
understand the regulatory environmental costs faced by their 
competitors.
---------------------------------------------------------------------------

    \47\ Astoria Energy LLC Queens Facility Application.
---------------------------------------------------------------------------

2. Energy Penalty and Other Non-Aquatic Impacts
    Given the performance penalty of dry cooling versus wet cooling, 
the incremental air emissions of dry cooling as compared with wet 
cooling, provide additional support for why EPA is rejecting dry 
cooling. Dry cooling technology results in a performance penalty for 
electricity generation that is likely to be significant under certain 
climatic conditions. By ``performance penalty'' EPA means that dry 
cooling technology requires the power producer to utilize more energy 
than would be required with recirculating wet cooling to produce the 
same amount of power. EPA concludes that performance penalties 
associated with dry cooling tower systems pose a significant 
feasibility problem in some climates. As discussed in Chapter 3 of the 
Technical Development Document, EPA estimates the mean annual 
performance penalty of a dry cooling system relative to recirculating 
wet cooling towers at 1.7 and 6.9 percent for combined-cycle and coal-
fired facilities, respectively. Peak-summer energy shortfalls for dry 
cooling towers as compared to wet towers can exceed 2.7 and 9.3 percent 
for combined cycle and coal-fired facilities, respectively. These 
performance penalties could have significant technical feasibility 
implications. For example, dry cooling facilities have as a design 
feature turbine back pressure limits that often trigger a plant shut 
down if the back pressure reaches a certain level. Peak summer effects 
of inefficiency of dry cooling can and do cause turbine back pressure 
limits to be exceeded at some demonstrated plants which in turn 
experience shutdown conditions when the back pressure limits are 
reached. In addition, these performance penalties could pose potential 
power supply and reliability issues if dry cooling were required on a 
nationwide or regional basis. For example, EPA estimates that in hot 
climates dry cooling equipped power plants experience peak summer 
energy penalties of 3.4 to 4.3 percent for combined cycle plants and 
14.8 to 19.4 percent for coal fired plants, as compared to once-through 
cooling systems. These peak summer penalties represent significant 
reductions in production at power plants in periods when demand is 
greatest. Compared to the selected option which a large majority of new 
facilities were planning to install independent of this rule, all 83 
electric generators would be required to install dry cooling 
technology. The energy impacts (power losses) associated with these 83 
facilities is estimated to comprise 0.51 percent of total new electric 
generating capacity (i.e., a reduction in new design generating 
capacity of 1,904 MW). These energy impacts raise the concern that on a 
large scale, dry cooling technology may affect electricity supply 
reliability. This significant reduction in electricity production is 
another reason EPA has not selected dry cooling as the best technology 
available for minimizing adverse environmental impacts on a nationwide 
or regional basis.
    Because of the performance penalty, power producers using dry 
cooling produce more air emissions per kilowatt-hour of energy 
produced. Nationally, EPA estimates that a minimum requirement based on 
dry cooling would cause significant air emissions increases over wet 
cooling systems. EPA projects for the dry cooling alternative that 
CO2, NOX, SO2, and Hg emissions would 
increase by 8.9 million, 22,300, 47,000, and 300 pounds per year, 
respectively. See Chapter 3 of the Technical Development Document for 
more information on EPA's air emissions analysis, including a 
discussion of the coincidence between maximum air emissions and the 
periods of the most severe air pollution problems. These additional 
non-aquatic

[[Page 65284]]

environmental impacts (in the form of air emissions) further support 
EPA's determination that dry cooling does not represent best technology 
available for minimizing adverse environmental impact on a national or 
region-specific basis.
3. Cost-Effectiveness
    EPA also considered the incremental costs and impingement and 
entrainment reduction between the selected option and dry cooling. Dry 
cooling, while very effective in reducing impingement and entrainment, 
is very expensive to implement. EPA understands that dry cooling can 
virtually eliminate the need for cooling water and therefore 
dramatically reduces impingement and entrainment. However, EPA has 
determined that the costs associated with implementing dry cooling are 
ten times as expensive as wet cooling. EPA has shown that the selected 
option, requiring facilities to reduce their intake flows to a level 
commensurate with that which can be attained by a closed-cycle, 
recirculating cooling water system, would reduce the amount of water 
withdrawn for cooling purposes by 70 to 98 percent. In addition, EPA 
has shown that this would result in corresponding reductions in 
impingement and entrainment. Further, the record shows that other 
requirements in the rule, such as velocity and proportional flow limits 
and the requirement to implement design and construction technologies, 
would result in additional reductions in impingement and entrainment. 
Based on the information available in the record, EPA estimates that 
the selected option may result in reduction of impingement to levels 
that could possibly exceed 99 percent. Estimated reductions in 
entrainment could also be substantial on a case-by-case basis (70 to 95 
percent). Because EPA's selected option is very effective in reducing 
impingement and entrainment and is one-tenth the cost, EPA believes 
that it is reasonable to reject dry cooling as a nationally applicable 
minimum in all cases.
4. Technical Feasibility of Dry Cooling for Manufacturers
    EPA considers that dry cooling technologies for manufacturing 
cooling water intake structures, as a whole, pose significant 
engineering feasibility problems. The primary feasibility issue is that 
dry cooling requires nearly zero water intake and many manufacturers 
reuse cooling water in their process. This dual use for process and 
cooling water prevents the application of dry cooling. In addition, 
many manufacturers require cooling water at an available temperature 
that is not reliably met by utilizing dry cooling. However, in some 
specific circumstances, EPA is aware of several demonstrated cases of 
dry cooling for cogeneration plants that are associated with 
manufacturers.

D. Why EPA Is Not Accepting the Industry Two-Track Approach in Full

    While EPA is adopting the general two-track framework suggested by 
a trade association representing the electric generating industry, EPA 
is not accepting all aspects of this approach. The primary differences 
between the approach that EPA is promulgating and the approach industry 
suggested are: (1) The final two-track approach defines a different 
level of environmental performance as ``best available technology for 
minimizing adverse environmental impact'' for the ``fast track'' and 
(2) the final two-track approach contains a different way of measuring 
equivalence with the environmental performance of the ``fast track'' in 
the second track. In short, EPA prefers a more concrete and objective 
measure of best technology available for minimizing adverse 
environmental impact for the new facility rule than does the measure 
suggested by the industry proposal.
    Under EPA's approach, best technology available for minimizing 
adverse environmental impact for new facilities would be the level of 
impingement and entrainment reduction achievable by (1) technology that 
reduces intake capacity in a manner comparable to that of a 
recirculating wet cooling tower; (2) technologies that reduce design 
through-screen velocity to reduce impingement, as explained in Section 
V.B.1.c of this preamble; (3) the applicant's selected design and 
construction technologies for minimizing impingement and entrainment 
and maximizing impingement survival; and (4) capacity and location-
based technology requirements for limiting flow withdrawal to a certain 
proportion of a waterbody. By contrast, the industry proposal asserts 
that ``closed cycle cooling and low intake velocity reduces entrainment 
and impingement to such low levels that adverse environmental impact is 
avoided, thereby not just meeting, but exceeding, the section 316(b) 
standard of protection.''
    Further, the industry proposal states that wedgewire screens, 
traveling fine mesh screens, and aquatic filter barrier systems, either 
alone or in combination, are sufficient, at least in certain types of 
waterbodies, in that they ``may provide a level of protection within 
the same range'' and thus should be determined to ``in almost every 
case avoid adverse environmental impact, thereby exceeding the 
requirements of section 316(b).'' While EPA's approach does not 
preclude the use of these alternative technologies if they demonstrate 
impingement and entrainment reductions equivalent to those of the suite 
of technologies it has described as ``best technology available for 
minimizing adverse environmental impact,'' in EPA's view the record 
does not show that using just one of the technologies listed above in 
order to qualify for expedited fast-track permitting is equivalent in 
reducing impingement and entrainment in a manner that reflects best 
technology available for minimizing adverse environmental impact. While 
barrier methods are effective at reducing impingement, EPA's record 
shows that they are currently not as effective at reducing entrainment 
as EPA's preferred option. This is because larvae and very small 
organisms can still pass through the barrier and may be entrained. 
While industry asserts that entrainment does not lead to mortality, 
there is conflicting evidence in the record on this topic, some of 
which indicates that in fact a large percentage of organisms can perish 
or be severely harmed when entrained. For these reasons, EPA does not 
find that the record supports the notion that the technologies listed 
by industry in its two-track proposal as ``exceeding the requirements 
of section 316(b)'' are as effective at reducing impingement and 
entrainment as the suite of technologies EPA has found to be 
technically available and economically practicable to the industries 
affected as a whole. For further discussion of entrainment and the 
performance of a variety of cooling water intake structure 
technologies, see Section III of this preamble and Chapter 5 of the 
Technical Development Document.
    The industry two-track approach is based on industry's argument 
that the CWA compels EPA to determine section 316(b) limits on a case-
by-case basis examining first whether the cooling water intake 
structure causes population or ecosystem effects before requiring any 
technology, because, industry asserts, this is the only plausible 
interpretation of the phrase ``adverse environmental impact.'' EPA does 
not believe that the language of the statute compels this 
interpretation. Instead, EPA believes it is reasonable to interpret 
section 316(b)'s requirement to establish ``best technology available 
for minimizing adverse environmental impact'' to authorize EPA to 
promulgate

[[Page 65285]]

technology-based performance requirements analogous to those derived 
for point sources under sections 301 (existing sources) and 306 (new 
sources) for minimizing a suite of adverse environmental impacts, 
including impingement and entrainment, diminishment of compensatory 
reserve, and stresses to populations, communities of organisms, and 
ecosystems. The controls required today appropriately reflect 
technologies that for new facilities are available and economically 
practicable, that do not have unacceptable non-aquatic environmental 
impacts (including impacts on the energy supply across the United 
States), and that reduce impingement and entrainment of aquatic 
organisms in a manner that will help support, maintain, and protect 
aquatic ecosystems. EPA wants to be very clear that this decision 
relates only to new facilities. In making the upcoming decisions 
regarding existing facilities in Phases II and III, EPA will carefully 
weigh all of the relevant factors, many of which are different for 
existing facilities than for new facilities.
    In addition, while EPA agrees that a two-track approach is an 
effective way to implement CWA section 316(b) for new facilities, EPA 
does not believe that a population-based approach for defining both the 
fast track and equivalent performance in the second track is a workable 
solution for new facilities.
    With respect to the ``fast track'' suggested by industry, EPA does 
not have a record indicating that the technologies cited by industry 
(such as a fish return system alone) are the best technologies 
available for reducing impingement and entrainment. Moreover, even if 
population were the only endpoint, the record does not support the 
assertion that the technology cited by industry would qualify for the 
fast track because it can be uniformly predicted across the nation not 
to have population impacts (assuming one can agree upon what are the 
relevant species of concern) for all new facilities nationally in any 
location. At the same time, EPA has identified technologies that for 
new facilities (which, unlike existing facilities, do not have 
retrofitting costs) that are technically available and economically 
practicable. Therefore for new facilities, EPA believes it is 
reasonable to require such technologies on a national basis to reduce 
impingement and entrainment.
    With respect to the second track, EPA does not prefer the 
population approach for new facilities, because the time and complexity 
of conducting population studies properly is generally inconsistent 
with making fast and reliable permitting decisions, an issue of 
particular importance for permitting new facilities. EPA's record shows 
that in order to study and demonstrate proper population studies, the 
permitting approval process would be adversely delayed for some new 
facilities. Specifically, because of the complexity of biological 
studies, it is very difficult to assess the cause and effect of cooling 
water intake structures on ecosystems or on important species within an 
ecosystem. An overwhelming majority of scientists have stated that 
biological studies can take multiple years because of the complex 
nature of biological systems. Moreover, unlike in the laboratory, where 
conditions are controlled, a multitude of confounding factors make 
biological studies very difficult to perform and make causation, in 
particular, difficult to determine. All of these issues take time to 
assess. EPA estimates that a credible job of studying these issues 
could take up to 3 years to complete. While some of this study can be 
conducted prior to start-up of the plant, this could cause delays in 
many situations. For these reasons, EPA does not believe that a 
population approach makes sense for new facilities.

VI. Summary of Major Comments on the Proposed Rule and Notice of 
Data Availability (NODA)

A. Scope/Applicability

    Comments on the scope and applicability of the new facility rule 
address several issues, including the definition of a new facility, the 
definition of a cooling water intake structure (including the twenty-
five (25) percent cooling water use threshold), the proposed threshold 
for cooling water withdrawals (i.e., 2 MGD), and the requirement for a 
facility to hold a NPDES permit.
1. New Facility Definition
    EPA proposed to define a ``new facility'' as any building, 
structure, facility, or installation that meets the definition of a 
``new source'' or ``new discharger'' in 40 CFR 122.2 and 122.29(b)(1), 
(2), and (4); commences construction after the effective date of the 
final rule; and has a new or modified cooling water intake structure. 
See proposed 40 CFR 125.83; 65 FR 49116.
    Numerous commenters supported EPA's determination that the new 
facility rule should apply only to greenfield and stand-alone 
facilities but questioned whether EPA had clearly and effectively 
limited applicability of the proposed rule to such facilities. Some 
commenters indicated that the proposed regulatory definition of new 
facility, which references the existing NPDES new source and new 
discharger definitions, is confusing. For example, some commenters 
asserted that defining the total replacement of an existing process as 
a new facility is not consistent with application of the rule only to 
greenfield or stand-alone facilities. Commenters indicated that the 
regulation should make it very clear that the new facility rule applies 
only to greenfield and stand-alone facilities. To clarify the 
definition of new facility, some commenters encouraged EPA to include 
language or examples from the proposed preamble in the final regulatory 
language. Several commenters requested that EPA more explicitly clarify 
that a new cogeneration plant installed to serve an existing facility 
would not be considered a new facility under this rule.
    The Agency believes that most new facilities subject to this rule 
will be considered new sources as defined in 40 CFR 122.2 and 
122.29(b)(1), (2), and (4) and subject to new source performance 
standards for effluent discharges. \48\ Under 122.29(b), a source is a 
new source if it meets the definition of new source in 122.2 
(effectively, it discharges or may discharge pollutants, and its 
construction commenced after promulgation--or proposal in specified 
circumstances--of a new source performance standard) and it meets any 
of three conditions. The first is that the source is constructed at a 
site at which no other source is located (40 CFR 122.29(b)(1)(i)). The 
second is that the source totally replaces the process or production 
equipment that causes a discharge at an existing facility (40 CFR 
122.29(b)(1)(ii)). The third is that the new source's processes are 
substantially independent of any existing source at the same site (40 
CFR 122.29(b)(1)(iii)). EPA stated in the proposed rule that the new 
facility rule applies to greenfield facilities, described as facilities 
that meet the first and second conditions above, and stand-alone 
facilities, which are those that meet the third condition, provided 
these facilities meet other applicable conditions (i.e., commencement 
of construction after the effective date of the final rule, new or

[[Page 65286]]

modified CWIS). Thus, the Agency believes the language of the 
regulation does make it clear that the rule applies to greenfield and 
stand-alone facilities or those whose processes are substantially 
independent of an existing facility at the same site. As commenters 
requested, EPA has added some examples to the regulatory section of the 
rule to serve as guidance regarding the definition of new facility 
under this final rule.
---------------------------------------------------------------------------

    \48\ Although the Agency believes that most new facilities 
subject to this rule will be considered new sources, EPA has 
included the reference to the definition of new discharger at 122.2 
to address any new facility that may commence construction prior to 
the promulgation of a new source performance standard. The Agency 
notes that the definition of new discharger in 122.2 only applies to 
facilities not defined as a new source.
---------------------------------------------------------------------------

    Several commenters also questioned whether repowering an existing 
facility would trigger applicability of the new facility requirements. 
These commenters pointed out that repowering is a common practice that 
often results in a gain in efficiency (i.e., both increased power 
output and a reduced need for cooling water withdrawals). Commenters 
expressed concern that, although repowering an existing facility is 
distinct from building a greenfield or stand-alone facility, repowering 
could be interpreted as subject to the new source definition and 
thereby subject to the new facility rule. Some also asserted that the 
proposed rule included an arbitrary distinction between completely 
replacing an existing facility and repowering that facility. By 
defining the complete replacement of a facility as a new facility but 
allowing repowering to be defined as an existing facility, these 
commenters argued, the proposed rule creates an incentive to use less 
efficient technology for the redevelopment of older sites. Commenters 
also noted that the proposed rule would regulate a new, greenfield 
facility and the complete replacement of an existing facility (i.e., a 
brownfield site) in a similar manner, which creates a disincentive to 
redevelop or modernize brownfield sites.
    The definition of a new facility in the final rule applies to a 
facility that is repowered only if the existing facility has been 
demolished and another facility is constructed in its place, and 
modifies the existing cooling water intake structure to increase the 
design intake capacity. To the extent commenters assert some inequity 
of treatment between new facilities and certain existing facilities, 
EPA will address this comment when it addresses what substantive 
requirements apply to existing facilities. Further, changes to an 
existing facility that do not totally replace the process or production 
equipment that causes a discharge at an existing facility (e.g., 
partial repowering), and those that do not result in a new separate 
facility whose processes are substantially independent of any existing 
source at the same site, do not result in the facility being defined as 
a new facility, regardless of whether these changes result in the use 
of a new or modified cooling water intake structure that increases 
existing design capacity. EPA does not agree that by not addressing 
most repowering under this rule the Agency is creating an incentive to 
use less efficient technology. Both the power-generating and 
manufacturing industries routinely seek greater efficiency when 
repowering. This is illustrated by the increased use over the past 10 
years of combined-cycle technology, which requires significantly less 
cooling water for a given level of power generation and is a more 
efficient process than older technologies.
    Several commenters supported EPA's definition of new facility as 
proposed. In contrast to concerns discussed above, some commenters 
expressed apprehension that the new facility definition would not 
capture all appropriate facilities. These commenters observed that an 
existing facility could rebuild its whole facility behind the cooling 
water intake structure and not be subject to the requirements 
applicable to a new facility. These commenters asserted that if an 
operator completely rebuilds an existing facility that facility should 
be subject to the new facility requirements.
    EPA can foresee one instance in which the concern raised by this 
commenter may be well founded. In this rule EPA has defined a new 
facility in a manner consistent with existing NPDES regulations, with a 
limited exception. EPA generally deferred regulation of new sources 
constructed on a site at which an existing source is located (see 40 
CFR 122.29(b)(3)) until the Agency completes analysis of its survey 
data on existing facilities. However, in addition to meeting the 
definition of a new source, today's rule requires that a new facility 
have a new cooling water intake structure or use an existing intake 
structure that has been modified to increase the design capacity. Thus, 
it might be possible to completely demolish an existing source, replace 
it with a smaller-capacity new source, and not be regulated under 
today's rule as a new facility. This facility would then be an existing 
facility an as such the requirements applicable to such a facility will 
be addressed in Phase II and III.
    Several commenters requested that EPA define facilities deemed to 
be substantially independent for purposes of applying the new source 
criteria under 40 CFR 122.29 as those that could be practicably located 
at a separate site. Commenters maintained that such an approach is 
justified because EPA has based the proposed new facility requirements 
on the assumption that each owner or operator has the option to choose 
the location of his or her new facility and that such location would be 
selected to allow the owner or operator to best comply with the intake 
structure location and operation requirements.
    With regard to defining when a facility is substantially 
independent under 40 CFR 122.29, EPA does not believe it is feasible to 
project under what circumstances owners and operators are free to 
select any location they desire for a new facility. For this reason, 
EPA takes the facility as it is planned for purposes of determining 
whether it is a new facility. In today's rule EPA does not believe it 
is appropriate to define the phrase ``substantially independent'' as 
used in 122.29(b)(1)(iii) as facilities that could be practicably 
located at a separate site. Section 122.29(b)(1)(iii) in the existing 
NPDES regulations already provides that ``[i]n determining whether . . 
. processes are substantially independent, the Director shall consider 
such factors as the extent to which the new facility is integrated with 
the existing plant; and the extent to which the new facility is engaged 
in the same general type of activity as the existing source.'' EPA does 
not think it is feasible for the permit authority to judge whether the 
facility could have been elsewhere for the purpose of determining 
whether the facility is subject to the new facility rules. Commenters 
also requested that EPA define what actions constitute routine 
maintenance to an existing cooling water intake, so that the 
distinction between changes that constitute maintenance and those that 
constitute a modification to an existing intake is made clearer.
    EPA has not defined ``routine maintenance'' in the final rule 
because clarifying what constitutes routine maintenance is not vital to 
the definition of new facility. Under the new facility rule, to be 
considered a new facility a facility must be a new source or new 
discharger and use a newly constructed cooling water intake structure 
or a modified existing cooling water intake structure whose design 
intake has been increased. Thus, changes to a cooling water intake 
structure at an existing facility that is not a new source or new 
discharger are not subject to this rule. In addition, at facilities 
that are new sources or new dischargers but may use an existing cooling 
water intake structure, EPA has clarified in the final rule that the 
facility is subject to this rule only where changes to the intake 
result in an

[[Page 65287]]

increase in design capacity. At facilities that are new sources or new 
dischargers, changes to an intake structure that do not result in an 
increase in design capacity do not result in that facility being 
subject to this rule.
    Finally, some commenters expressed concern about the status of 
facilities that are under construction or have recently been 
constructed. These commenters suggested that such facilities should not 
be defined as new facilities. Others asserted that it is unfair to 
define a facility that has submitted a permit application but has not 
started construction as a new facility.
    The Agency chose the commencement of construction date because it 
was generally consistent with the term ``new source'' in the existing 
NPDES permitting regulations and it should provide adequate notice and 
time for facilities to implement the technological changes required 
under the rule. The date a facility commences construction is clarified 
at 40 CFR 122.29(b)(4). This provision describes certain installation 
and site preparation activities that are part of a continuous onsite 
construction program; it includes entering into specified binding 
contractual obligations. Thus, under today's rule facilities that are 
constructed or commence construction within the meaning of 40 CFR 
122.29(b)(4) prior to or on the effective date of the final rule are 
not new facilities. Those that commence construction after the 
effective date of this rule and meet the other regulatory thresholds 
defined in Sec. 125.81 are subject to the requirements of this rule.

2. Definition of Cooling Water Intake Structure

    EPA proposed that the term ``cooling water intake structure'' means 
the total physical structure and any associated constructed waterways 
used to withdraw cooling water from waters of the U.S., 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. In the NODA 
the Agency requested comments on two additional alternatives. See, 66 
FR 28854.
    Most of the comments addressing the definition of cooling water 
intake structure focused on the 25 percent threshold for cooling water 
use. These comments are summarized and addressed under Section VI.A.3, 
below. EPA has placed the 25 percent threshold in the applicability 
requirements of the final rule to clarify the definition of cooling 
water intake structure. Intakes below this threshold are not subject to 
today's national rule; however, permit writers should determine any 
appropriate section 316(b) requirements for structures withdrawing less 
than 25% of intake flow for cooling purposes on a case-by-case basis.
    Some commenters suggested that cooling water intake structures 
should not be defined in a way that would include the pumps in the 
cooling water system. Commenters maintained that pumps are part of the 
cooling water system, not part of the intake, and they assert that the 
Agency has authority under section 316(b) only over cooling water 
intake structures. Commenters noted that changing pumps is part of the 
normal routine of maintenance and repair performed at facilities that 
use water for cooling and that such activity should not trigger 
applicability of the new facility rule.
    In the final rule EPA has clarified the definition of cooling water 
intake structure to explicitly include the first intake pump or series 
of pumps. The explicit inclusion of the intake pumps in the cooling 
water intake structure definition reflects the key role pumps play in 
determining the capacity (i.e., dynamic capacity) of the intake. These 
pumps, which bring in water, are an essential component of the cooling 
water intake structure since without them the intake could not work as 
designed. Section 316(b) authorizes EPA to impose limitations on the 
volume of the flow of water withdrawn through a cooling water intake 
structure as a means of addressing ``capacity.'' In re Brunswick Steam 
Electric Plant, Decision of the General Counsel No. 41 (June 1, 1976). 
Such limitations on the volume of flow are consistent with the 
dictionary definition of ``capacity,'' 49 the legislative 
history of the Clean Water Act,50 and the 1976 
regulations.51 Id. Indeed, as Decision of the General 
Counsel No. 41 points out, the major environmental impacts of cooling 
water intake structures are those affecting aquatic organisms living in 
the volumes of water withdrawn through the intake structure. (Statement 
of Mr. Buckley, Senate consideration of the Report of the Conference 
Committee [discusses intake from once-through systems]. A Legislative 
History of the WPCA Amendments of 1972, 93rd Cong., 1st Sess., 
Committee Print at 196, 197). Therefore, regulation of the volume of 
the flow of water withdrawn also advances the objectives of section 
316(b).
---------------------------------------------------------------------------

    \49\ ``Cubic contents; volume; that which can be contained.'' 
Random House Dictionary of the English Language, cited in Decision 
of the General Counsel No. 41.
    \50\ Legislative History of the Water Pollution Control Act 
Amendments of 1972, 93d Cong., 1st Sess., at 196-7 (1973).
    \51\ 40 CFR 402.11(c)(definition of ``capacity''), 41 FR 17390 
(April 26, 1976).
---------------------------------------------------------------------------

3. Applicability Criteria: Requirement to Withdraw Water From a Water 
of the U.S., the Twenty-Five (25) Percent Cooling Water Use Threshold, 
and the Two (2) MGD Intake Flow Threshold
    As was proposed, the final new facility rule applies to any new 
facility that (1) has or is required to have an NPDES permit; (2) 
proposes to use a cooling water intake structure to withdraw water from 
waters of the U.S.; (3) uses at least twenty-five (25) percent of the 
water withdrawn for cooling purposes; and (4) has a design intake flow 
of greater than two (2) million gallons per day (MGD). See proposed 40 
CFR 125.81 and 125.83; 65 FR 49116.
    Commenters raised several concerns regarding the proposed 25 
percent threshold. A number of commenters asserted that EPA did not 
provide a rational basis in its record for proposing that use of 25 
percent of intake flow for cooling purposes should determine whether an 
intake structure is a cooling water intake structure. Commenters 
asserted that it is inappropriate to base the 25 percent cooling water 
use threshold on the number of cooling water intake structures or 
amount of cooling water flow this threshold would make subject to this 
rule. Several commenters observed that no single threshold can be 
applied to all intakes to accurately distinguish cooling water intakes 
from other intakes. If EPA is determined to use a single threshold in 
this definition, numerous commenters favored a threshold of 50 percent 
cooling water use, which commenters stated is the de facto threshold 
used under the existing definition of a cooling water intake structure 
found in 1977 draft guidance. However, some commenters maintained that 
for an intake to be defined as a cooling water intake structure the 
vast majority (i.e., 75-100 percent) of water withdrawn must be used 
for cooling.
    As discussed above, in the final rule EPA has placed the 25 percent 
threshold in the applicability section to clarify the applicability of 
the rule. Permit writers may determine that an intake structure that 
withdraws less than 25% of the intake flow for cooling purposes should 
be subject to section 316(b) requirements, and set appropriate 
requirements on a case-by-case basis, using Best Professional Judgment. 
Although cooling water intake structures that fall below the 25% 
threshold are not subject to today's national rule, today's rule does 
not inhibit permit writers, including those

[[Page 65288]]

at the Federal, State, or Tribal level, from addressing such cooling 
water intake structures as deemed necessary.
    EPA chose 25 percent as a reasonable threshold for the percent of 
flow used for cooling purposes in conjunction with the two MGD total 
flow threshold discussed below to ensure that almost all cooling water 
withdrawn from waters of the U.S. is addressed by the requirements in 
this rule for minimizing adverse environmental impact. EPA estimates 
that approximately 68 percent of manufacturing facilities that meet 
other thresholds for the rule and 93 percent of power-generating 
facilities that meet other thresholds for the rule use more than 25 
percent of intake water for cooling. In contrast, approximately 49 
percent of new manufacturing facilities use more than 50 percent of 
intake water for cooling. EPA does not believe it is reasonable to 
exclude from regulation nearly half of those manufacturing facilities 
that use large volumes of cooling water and, as a result, impinge and 
entrain aquatic organisms. EPA also considered it important to cover as 
many of the facilities as possible in order to create regulatory 
certainty for new facilities and for States and Tribes that must permit 
these new facilities. EPA predicts this will leave four (4) percent of 
the electric power generating facilities and thirty-two (32) percent of 
manufacturing facilities to the discretion of the permit writer. EPA 
believes that new facilities that use less than 25 percent of water 
withdrawn for cooling are most effectively addressed by States and 
Tribes on a best professional judgement (BPJ) basis, rather than under 
a national rule, since BPJ provides a certain degree of flexibility for 
a permit writer to consider available technologies and unique factors 
posed by new facilities that are below the threshold.
    Several manufacturers commented that the rule as proposed may 
create a disincentive to manufacturing operations increasing efficiency 
through reducing process water use, since such reductions increase the 
percentage of cooling water used. These commenters observed that since 
process water is reused for cooling and cooling water may be heated and 
reused as process water, flexibility is needed in the rule so these 
practices are not discouraged or penalized. They also stated that 
process water cannot be reused in a manner consistent with closed-loop 
cooling. Some commenters also stated that the final rule should address 
situations in which the percentages of water used for cooling and as 
process water are not constant, or where the withdrawal of cooling 
water is intermittent.
    In the final rule EPA has amended the definition of cooling water 
intake structure to ensure that the rule does not discourage the reuse 
of cooling water as process water. EPA has amended the proposed 
definition of cooling water intake structure to specify that cooling 
water that is used in a manufacturing process, either before or after 
it is used for cooling, is considered process water for purposes of 
calculating the percentage of a new facility's intake flow that is used 
for cooling and whether that percentage exceeds 25 percent. In 
addition, EPA also has added guidance to the regulation that clarifies 
how the 25 percent threshold should be applied to new facilities that 
do not maintain a constant ratio of cooling water to process water. See 
Sec. 125.81(c) of this rule. This guidance provides that the threshold 
requirement that at least 25 percent of water withdrawn be used for 
cooling purposes is to be measured, on the basis of facility design, on 
an average monthly basis over a period of 1 year (any 12-month period). 
It further clarifies that a new facility meets the 25 percent cooling 
water threshold if any monthly average, over a year, for the percentage 
of cooling water withdrawn equals or exceeds 25 percent of the total 
water withdrawn.
    Numerous commenters asserted that the two MGD threshold is too low 
and is not supported by a credible justification. Some commenters 
stated that the two MGD cutoff is overly conservative given that many 
facilities determined to be causing no adverse impact have considerably 
greater flows. For example, these commenters note that the State of 
Maryland uses a 10 MGD threshold, which commenters state would capture 
99.67 percent of all existing cooling water flows if applied on a 
national basis. Several commenters supported the use of Maryland's 
approach. Others stated that the proposed rule contained insufficient 
data to be science-based (i.e., based on the level of withdrawal above 
which adverse environmental impact occurs). Commenters also observed 
that many of the environmental impact data EPA presented in the 
proposed rule focused on major power plants with flows much greater 
than two MGD, which does not support the proposition that adverse 
impacts occur at small facilities with lower flows. Rather, the 
commenters suggest, the threshold appears to be designed merely to 
capture a certain percentage of flow. If so, commenters assert this 
threshold is arbitrary and not based on sound science. Some of these 
commenters asserted that cooling water intake structure impact data 
support thresholds exceeding 500 MGD. A few commenters maintained that 
it is not appropriate to apply a single threshold to all waterbody 
sizes. Several supported the two MGD threshold. Several commenters also 
supported higher thresholds, including 5, 10, 25, and 100 MGD. Some 
commenters maintained that section 316(b) requirements should apply to 
all cooling water intake structures and that therefore no flow 
threshold is necessary.
    EPA chose the two MGD threshold because this threshold addresses 
the majority of new facilities and therefore provides the States and 
Tribes with a national rule that can be easily applied to a majority of 
permitting decisions they face in order to implement the legal 
requirements of CWA section 316(b). All cooling water intake flow 
results in the potential for impingement and entrainment. Thus, all 
facilities must address section 316(b) requirements in the same 
fashion. Therefore, where EPA's record demonstrates that the 
requirements are technically available, economically practicable, and 
not have unacceptable non-water quality environmental impacts, 
including energy impacts, the Agency believes that it is appropriate 
for the new facility rule to address the majority of cooling water 
intake structure facilities. In doing so, EPA resolves for permit 
writers what the requirements are for new facilities.
    On the basis of data for facilities with cooling water intake 
structures built in the past 10 years, EPA estimates that 58 percent of 
the manufacturers, 70 percent of the nonutilities, and 100 percent of 
the utilities will be regulated under the two MGD threshold. At the two 
MGD threshold, 62 percent of all in-scope facilities using surface 
water and 99.7 percent of the total flow will be covered. Estimated 
total flow is approximately 9 billion gallons per day. EPA did not 
select a significantly higher threshold, such as 15 or 25 MGD, because 
these thresholds would exclude most utility, nonutility and 
manufacturing facilities from regulation. At a threshold of 15 MGD, 32 
percent of the manufacturers, 29 percent of the nonutilities, and 50 
percent of the utilities would be covered, as would 97.3 percent 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. While at a threshold of 25 MGD, 94.9 percent of the total 
flow would still be covered, many more facilities would not be covered. 
Only 18 percent of manufacturers, 17 percent of nonutilities, and 50 
percent of utilities would be covered. Thus, 72 percent of

[[Page 65289]]

manufacturers, 83 percent of nonutilities, and 50 percent of utilities, 
withdrawing up to 25 MGD would need to be addressed on a Best 
Professional Judgement basis. The Agency is concerned about the 
regulatory uncertainty for regulated new facilities and the burden on 
State and tribal permit writers to ensure appropriate requirements for 
these facilities. EPA also believes that the two MGD threshold reduces 
the burden on States and Tribes responsible for implementing section 
316(b) requirements because, as a national threshold, it reduces the 
burden associated with site-specific determination of appropriate 
316(b) limits. The lower threshold may also reduce delays for permit 
applicants by providing certain national standards.
    EPA did not select a 5 or 10 MGD threshold because of the 
percentage of projected new nonutility and manufacturing facilities 
that would be excluded from regulation under these thresholds and 
concern that future trends in intake flow levels would, under these 
regulatory options, leave most new facilities using cooling water 
exempt from national regulation and subject to case-by-case 
determinations by permit agencies. At a threshold of 5 MGD, only 40 
percent of nonutility facilities would be covered under this rule. 
Under a threshold of 10 MGD, 38 percent of manufacturing and 28 percent 
of nonutility facilities would be covered. EPA did examine the State of 
Maryland's 10 MGD standard but did not find information that would 
support the use of this standard on a national basis. In addition, the 
trend in power generation is toward, on a per facility/per unit of 
output basis, a general reduction in cooling water intake flow levels 
over time. Combined-cycle gas turbines require less water per unit of 
electricity generated than coal-fired or nuclear facilities. For 
example, a 750 MW combined-cycle facility with evaporative cooling 
towers is estimated to require approximately 7 to 8 MGD and under a 10 
MGD threshold would not be subject to this national rule. The Agency 
believes that, given the objective of section 316(b), it is undesirable 
to exclude such a large plant from this rule. As reductions in cooling 
water intake flow levels occur, the two MGD threshold also ensures that 
this rule can serve the State, Tribes, and permit applicants by 
assuring that permits for new facilities comply with 316(b).
    EPA does not agree that the intake flow threshold in the 
applicability portion of this rule must be based on prior 
determinations of the degree of environmental impact caused by a 
specific facility or specific cooling water intake structure. Section 
316(b) applies to any facility that uses a cooling water intake 
structure and is a point source subject to standards imposed under CWA 
section 301 or 306. EPA has included a flow threshold to provide some 
reasonable limit on the scope of the national requirements imposed 
under today's rule. The Agency believes those new facilities with 
withdrawals that are at or below a two MGD threshold will generally be 
smaller operations that may face issues of economic affordability and 
are therefore more appropriately addressed on a case-by-case basis 
using BPJ. Moreover, as discussed in Section III, EPA does not agree 
that adverse environmental impact associated with cooling water intake 
structures is solely a population-based phenomenon. Rather, there can 
be numerous measures of such impacts, including assessments of fish and 
aquatic organism population impacts. Given the language of section 
316(b) and the issues associated with determining adverse impacts, EPA 
does not view the examples of cooling water impacts discussed in the 
proposed rule and NODA as limiting the applicability of this rule to 
new facilities that have the opportunity to employ widely used, 
economically practicable measures that will, at a minimum, reduce 
injury to large numbers of fish and aquatic life and may result in 
benefits at higher levels of ecological structures.
    Finally, commenters stated that large facilities that use closed 
cooling water systems may still require withdrawals of more than 2 MGD. 
These commenters asserted that it is unfair to subject these facilities 
to additional regulation after they have reduced their intake flow by 
90 percent or more.
    EPA agrees that very large facilities that use closed cooling water 
systems may still require withdrawals of more than two (2) MGD. As 
discussed elsewhere in this preamble, EPA determined that reducing 
intake capacity commensurate with use of a closed-cycle recirculating 
cooling system is not economically practicable for facilities 
withdrawing between 2 and 10 MGD. However, EPA does not agree that it 
is unfair to subject these facilities to further requirements necessary 
to reduce impingement and entrainment. Section 316(b) requires that the 
location, design, construction, and capacity of cooling water intake 
structures reflect the best technology available for minimizing adverse 
environmental impact. While reductions in total intake flow may 
represent the single most significant improvement for new facilities 
with cooling water intake structures, large flows withdrawn for make-up 
(i.e., to replace evaporative loss and blow down) can still cause 
significant impingement and entrainment. Additional controls on intake 
velocity, flow relative to the source waterbody, and design and 
construction technologies proposed by the facility also represent 
important aspects of a cooling water intake structure that must, under 
section 316(b), be addressed. As discussed elsewhere in this preamble 
and in the Technical Development Document and Economic Analysis, these 
additional measures are both widely employed and affordable. EPA does 
not believe that a determination of ``best technology available for 
minimizing adverse environmental impact'' for new facilities can omit 
these low-cost, effective technologies. Also see Section VIII of this 
preamble for a discussion that explains the percentage of new 
facilities already meeting the final rule requirements and the low cost 
of these requirements.
4. NPDES Permit
    The proposed rule would apply only to new facilities that are or 
will be subject to an NPDES permit. See, proposed 40 CFR 125.81; 65 FR 
49116. Comments received on this proposed requirement generally focus 
on the new facilities that withdraw cooling water from waters of the 
U.S. but do not hold an NPDES permit.
    Some commenters asserted that EPA should not use the 316(b) 
rulemaking to regulate cooling water intake structures that are not 
owned by the NPDES-permitted facility. Commenters indicated that such 
an approach was beyond the authority provided by 316(b) and would make 
the rule unnecessarily complex.
    The final rule applies only to new facilities that hold an NPDES 
permit or are required to obtain a permit. The Agency continues to 
believe that most new facilities that will be subject to this rule will 
control the intake structure that supplies them with cooling water and 
will discharge some combination of their cooling water, wastewater, and 
stormwater to a water of the U.S. through a point source regulated by 
an NPDES permit. Under this scenario, the requirements for the cooling 
water intake structure will be applied in the facility's NPDES permit.
    In the event that a new facility's only NPDES permit is a general 
permit for storm water, EPA anticipates that the Director will write an 
individual NPDES permit containing requirements for the facility's 
cooling water intake structure.

[[Page 65290]]

Such 316(b) requirements could also be included in the general permit.

B. Environmental Impact Associated With Cooling Water Intake Structures

    The proposed rule requested comment on the scope and nature of 
environmental impacts associated with cooling water intakes. Many 
comments were directed generally toward entrainment and impingement 
impacts, with some discussion of impacts caused by intake construction 
activities. The majority of comments, however, concentrated on defining 
adverse environmental impact and the approaches that were most relevant 
for characterizing adverse environmental impact, including assessments 
of population modeling and bioassessment approaches.
1. Entrainment, Impingement, and Construction Impacts
    In the proposed rule, EPA requested comment on the types of impacts 
attributable to cooling water intake structures (65 FR 49072). Most of 
the comments focused on discussion of entrainment and impingement 
impacts and the impacts associated with construction of new cooling 
water intake structures.
    One commenter suggested that the EPA should have scientific 
analyses to support the statement that entrainment mortality is high. 
The commenter also stated that, on the basis of recently conducted 
entrainment studies, through-plant change in temperature was the 
controlling factor for entrainment mortality and that entrainment 
impacts could be minimized through use of a cooling water system 
designed for high volume, low-velocity flow, which would minimize 
temperature differential. The commenter also noted that high-volume, 
low-velocity-flow cooling water systems would be specifically 
eliminated by the proposed 316(b) regulation.
    EPA notes that entrainment studies indicate that through-plant 
mortality rates of young fish are determined by numerous factors. 
Different species have different tolerance to passage through a cooling 
system, and mortality rates may differ among life stages of the same 
species. A summary of mortality data from five Hudson River power 
plants found that mortality rates could be substantial.\52\ The report 
cited species-specific mortality rates that varied by life stage for 
bay anchovy (93 to 100 percent), Atlantic tomcod (0 to 64 percent), 
herrings (57 to 92 percent), white perch (41 to 55 percent), and 
striped bass (18 to 55 percent). The study emphasized that the 
reliability of these estimates was questionable and that various 
sources of potential bias may have caused the estimated rates to be 
lower than the actual mortality rates. The Electric Power Research 
Institute (EPRI) sponsored a recent review of 36 entrainment survival 
studies, the majority of which were conducted in the 
1970s.53 54 The summarized mortality rates 
described by EPRI were in substantial agreement with patterns reported 
in the Hudson River summary, specifically that anchovies and herrings 
had the highest mortality rates (greater than 75 percent), and that 
temperature change seemed to be an important determining factor. Thus, 
EPA believes scientific studies document that entrainment mortality for 
some species can be quite high.
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    \52\ Boreman, J., L.W. Barnthouse, D.S. Vaughan, C.P. Goodyear, 
S.W. Christensen, K.D. Kuman, B.L. Kirk, and W. Van Winkle. 1982. 
the Impact of Entrainment and Impingement on Fish Populations in the 
Hudson River Estuary: Volume I, Entrainment Impact Estimates for Six 
Fish Populations Inhabiting the Hudson River Estuary. Prepared for 
the U.S. Nuclear Regulatory Commission, Office of Nuclear Regulatory 
Research by the Oak Ridge National Laboratory. ORNL/NUREG/TM-385/V1.
    \53\ EPRI. 2000. Review of entrainment survival studies: 1970-
2000. Report No. 1000757. Prepared by EA Engineering Science & 
Technology.
    \54\ Some of the studies summarized in EPRI (2000) are the same 
ones considered by Boreman et al. (1982). See EPRI (2000) for 
complete citations of 36 original studies.
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    EPA recognizes that Track I of the final rule precludes the use of 
high-volume, flow cooling water systems. However, in today's rule, 
under Track II, an intake with the capacity needed to support a high-
volume, once-through cooling system that is shown through studies to 
reduce impingement mortality and entrainment for all life stages of 
fish and shellfish to achieve a level of reduction comparable to the 
level that would be achieved by applying Track I technology-based 
performance requirements at a site would meet the requirements of the 
rule.
    Another commenter suggested that many of the more significant 
impingement episodes occur in conjunction with environmental phenomena 
such as low dissolved oxygen and rapid temperature declines. According 
to the commenter, these phenomena cause the death of many fish that are 
then ultimately collected on intake screens. EPA acknowledges that 
episodes of low dissolved oxygen and rapid temperature declines can 
result in fish losses, but does not concur that this is consistently 
documented as a significant or sole cause of fish impingement 
mortalities.
    Another commenter recommended that EPA require antifouling measures 
at the construction and operational stages to minimize intake 
attractiveness to local fish, diving birds, and marine mammals. As 
stated previously, EPA defers controls for minimizing adverse impacts 
due to construction of new cooling water intake structures to the 
authority of existing Federal, State, and Tribal programs established 
for this purpose. EPA believes it is incumbent upon the individual 
facilities to implement antifouling measures during operations that are 
appropriate for the specific characteristics of their waterbody. As an 
example, antifouling measures for freshwater systems will be different 
from measures used for ocean intakes. (See Section VI.E.3.a. below for 
more information on fouling controls).
    Finally, one commenter suggested that cooling water intake 
structures affect many components of an ecosystem, not just individual 
species. Thus, the regulation should consider indirect effects on 
predators resulting from losses of prey species and overall ecosystem 
effects when evaluating environmental impacts. EPA has taken primarily 
a technology-based approach to this national rule. EPA believes that 
this rule will reduce impacts to predators by dramatically reducing 
entrainment and impingement of prey species and will therefore protect 
ecosystems as a whole. In addition, this rule recognizes that States 
and Tribes can be more stringent as is consistent with section 510 of 
the CWA.
    EPA also received comments on the documented examples of 
impingement and entrainment impacts discussed in the proposed rule. 
Several commenters argued that it was inaccurate for EPA to equate the 
taking of aquatic organisms with environmental impact because there was 
little evidence that intakes, new or existing, would cause or were 
causing adverse impacts. In contrast, other commenters asserted that, 
given the tremendous quantity of water that utilities withdraw and the 
large number of organisms impinged and entrained by intakes, it was 
clear that the cooling process had an adverse impact on aquatic 
ecosystems. EPA believes that the examples of environmental impact 
provided in the proposed rule are illustrative of the types of effects 
associated with cooling water intakes.
    Several commenters objected to the use of specific facilities as 
representative examples of environmental impact. They argued that EPA 
focused on a few high-profile, high-intake facilities and in some cases 
used outdated information or misinterpreted results. EPA believes it 
used the best

[[Page 65291]]

information available for the proposed rule and the final rule. There 
are few, if any, recent data documenting entrainment or impingement 
rates at the majority of existing facilities. Many of the available 
reports are for larger facilities (for which environmental impact 
concerns were greatest) and contain analyses conducted 20 to 25 years 
ago. Several of the examples cited in the proposed rule were based on 
historical data and EPA acknowledges that the data may not reflect 
current impingement or entrainment rates at the facility, particularly 
if technologies and other operational measures for reducing entrainment 
and impingement have been implemented since the original study. 
However, in most cases updated information was not available. To the 
extent possible, EPA has supplemented the facility information in the 
record for this final rule to include smaller facilities and updated 
information.
    Finally, several commenters suggested that there was no need to 
address construction impacts in the 316(b) rule because there were 
existing Federal, State, and local provisions designed to minimize the 
impacts caused by construction activities. Another commenter stated 
that it was likely that the majority of new generation, once-through 
cooling facilities will be using existing cooling water intake 
structures and that it was doubtful that a new once-through facility 
would be constructed in an area where significant habitat could be 
disrupted. In contrast, another commenter stated that the regulation 
should address impacts associated with new cooling water intake 
structure construction, even if impacts were not recurring.
    Under today's rule, EPA will minimize construction impacts by 
requiring appropriate intake design and construction technologies. EPA 
recognizes that other Agencies have a prominent role in evaluating and 
minimizing impacts related to construction activities and acknowledges 
that existing Federal, State, and Tribal programs include requirements 
that address many of the environmental impact concerns associated with 
the construction of new intakes. EPA believes that implementation of 
appropriate design and construction technologies and existing program 
requirements will minimize the environmental impacts of construction.
2. Adverse Environmental Impact
    The proposed rule discussed six potential definitions for adverse 
environmental impact: (1) A level of impingement and entrainment that 
is recurring and nontrivial, perhaps defined as the impingement or 
entrainment of 1 percent or more of the aquatic organisms in the near-
field area as determined in a 1-year study; (2) entrainment or 
impingement damage as a result of the operation of a specific cooling 
water intake structure, including a determination of the magnitude of 
any short-term and long-term adverse impacts; (3) any impingement or 
entrainment of aquatic organisms; (4) a biocriteria approach based on a 
comparison of the abundance, diversity, and other important 
characteristics of the aquatic community at the proposed intake site 
with similar biological metrics at defined reference sites; (5) 
evaluation of impacts to protected species, socially, recreationally, 
or commercially important species, and community integrity (including 
community structure and function); and (6) impacts likely to interfere 
with the protection and propagation of a balanced indigenous population 
of fish, shellfish, and wildlife. The proposed rule also invited 
comment on whether adverse environmental impact should be defined more 
broadly to include non-aquatic environmental impacts (e.g., air 
emissions, noise, introductions of non-indigenous species) associated 
with technology-based requirements (see Section VI.B.2.e. below). In 
the NODA, EPA presented another population-based approach proposed by 
industry for defining adverse environmental impact--``Adverse 
environmental impact is a reduction in one or more representative 
indicator species that (1) creates an unacceptable risk to the 
population's ability to sustain itself, to support reasonably 
anticipated commercial or recreational harvests, or to perform its 
normal ecological function, and (2) is attributable to the operation of 
the cooling water intake''--and invited comment on this definition as 
well as refinements to three of the definitions discussed in the 
proposed rule. See, 66 FR 28859-28863.
    Numerous commenters stated that defining adverse environmental 
impact was critical to the 316(b) regulation because the program is 
fundamentally based on minimizing environmental impact. Further, 
commenters suggested that, without a solid definition of adverse 
environmental impact, the Agency's ability to interpret, implement, and 
enforce 316(b)-related actions would be seriously hampered.
    EPA recognizes that since enactment of 316(b), scientists, 
environmentalists, lawmakers, and regulators have disagreed on an exact 
definition for adverse environmental impact. Further, the many studies 
conducted to date and arguments put forward on this issue have done 
little to resolve the current lack of consensus among the concerned 
parties. Given this background, EPA has determined to address adverse 
environmental impacts as discussed below.
a. What Constitutes Adverse Environmental Impact Under This Final Rule?
    EPA acknowledges that there are multiple types of adverse 
environmental impact including impingement and entrainment; reductions 
of threatened, endangered, or other protected species; damage to 
ecologically critical aquatic organisms, including important elements 
of the food chain; diminishment of a population's potential 
compensatory reserve; losses to populations, including reductions of 
indigenous species populations, commercial fishery stocks, and 
recreational fisheries; and stresses to overall communities or 
ecosystems as evidenced by reductions in diversity or other changes in 
system structure or function.
    In the preamble to the proposed rule, EPA discussed several other 
options for interpreting adverse environmental impact. One option would 
be to look to section 316(a) of the Clean Water Act for guidance. 
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 is repeated in section 303(d) with reference to total maximum 
daily load (TMDL) listing requirements for waters impaired by thermal 
discharge. These statutory provisions indicate that Congress intended 
this requirement 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 requirement in evaluating 
adverse environmental impact from cooling water intake structures as 
well.
    Commenters have argued that the CWA compels EPA to determine that 
the objective of section 316(b) must be linked to the 316(a) goal to 
ensure protection and propagation of a balanced indigenous population 
of shellfish, fish, and wildlife. EPA does not agree that the CWA 
compels EPA to interpret adverse environmental impact

[[Page 65292]]

as that term is used in section 316(b) in the Act by reference to the 
phrase ``balanced indigenous population'' under section 316(a). Because 
Congress used different terms in section 316(b) than in section 316(a), 
EPA does not believe the Agency is required to adopt such an 
interpretation. When Congress includes particular language in one 
section of a statute but omits it in another section of the same act, 
it is generally presumed that Congress acted intentionally and 
purposely in the disparate inclusion or exclusion. Bates v. U.S., 522 
U.S. 23 (1997). The usual canon of statutory interpretation is that 
when Congress uses different language in different sections of a 
statute, it does so intentionally. Florida Public Telecommunications 
Ass'n, Inc. v. F.C.C., 54 F.3d 857 (D.C. Cir. 1995). Instead, EPA 
believes, consistent with EPA's ecological risk assessment guidelines, 
that it is reasonable to interpret adverse environmental impact as 
including impingement and entrainment, diminishment of compensatory 
reserve, stresses to the population or ecosystem, harm to threatened or 
endangered species, and impairment of State or authorized Tribal water 
quality standards. The Agency has long maintained that adverse 
environmental impact from cooling water intake structures must be 
minimized to the fullest extent practicable,\55\ even in cases where it 
can be demonstrated that the requirement applicable under section 
316(a) is being met. 56 57 Thus, the objective of section 
316(b) includes population effects but is not limited to those effects. 
EPA's interpretation of ``adverse environmental impact'' is discussed 
in more detail below.
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    \55\ In re Brunswick Steam Electric Plant, Decision of the 
General Counsel No. 41, June 1, 1976.
    \56\ In re Public Service Co. of New Hampshire, (Seabrook 
Station Units 1 and 2) (Decision of the Administrator) 10 ERC 1257, 
1262 (June 17, 1977).
    \57\ In re Central Hudson Gas and Elec. Corp., Decision of the 
General Counsel No. 63, July 29, 1977.
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b. Approach to Defining Adverse Environmental Impact
    EPA received numerous comments on its proposed rule asserting that 
the proper endpoint for assessing adverse environmental impact 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. EPA's record at proposal demonstrated that cooling water 
intake structures do not kill, impinge, or entrain just ``one fish,'' 
or even a few aquatic organisms. The NODA published by EPA provides 
further examples of cooling water intake structures that kill or injure 
large numbers of aquatic organisms. For example, EPA provided 
information on aquatic organism conditional mortality rates for the 
Hudson and Delaware rivers that demonstrated significant mortality due 
to cooling water intake structures. EPA considered this information, as 
well as information in Section III on impingement and entrainment 
survival and impact, as it deliberated options for the final rule and 
how adverse environmental impact should be defined. Further, EPA 
considered documents that discussed potential consequences associated 
with the loss of large numbers of aquatic organisms. These potential 
consequences included 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. Given all of these 
considerations, EPA determined that there are multiple types of 
undesirable and unacceptable adverse environmental impacts, including 
entrainment and impingement; reductions of threatened, endangered, or 
other protected species; damage to critical aquatic organisms, 
including important elements of the food chain; diminishment of a 
population's compensatory reserve; losses to populations, including 
reductions of indigenous species populations, commercial fishery 
stocks, and recreational fisheries; and stresses to overall communities 
or ecosystems as evidenced by reductions in diversity or other changes 
in system structure or function.
    EPA also invited commenters to submit for consideration additional 
studies that documented either significant impacts or lack of 
significant impacts from cooling water intake structures. Several 
commenters submitted reports on manufacturing and power plant 
facilities that purported to demonstrate minimal impact from cooling 
water intake. One commenter submitted three documents for EPA's review. 
Another commenter submitted information on the Neal Complex facility 
located on the Missouri River near Sioux City, Iowa. The commenter 
described a 10-year (1972-82) study that focused on evaluating the 
operational impacts of the Neal facility, sited on a heavily 
channelized segment of the Missouri River. The commenter asserted that 
study results indicated little if any detrimental impact to the 
Missouri River ecosystem caused by facility operations. EPA reviewed 
the information summarized by the commenter and finds fault with 
several of the statements and conclusions cited in the comment. This is 
discussed further in EPA's response to comments document.
c. Assessment of Population Modeling Approach
    Some commenters asserted that impacts on individual organisms or 
subpopulations are not ecologically relevant and recommended that EPA 
define adverse environmental impact as follows: ``Adverse environmental 
impact is a reduction in one or more representative indicator species 
that (1) creates an unacceptable risk to the population's ability to 
sustain itself, to support reasonably anticipated commercial or 
recreational harvests, or to perform its normal ecological function, 
and (2) is attributable to the operation of the cooling water intake 
structure.'' Under this approach, EPA would define unacceptable risk by 
using a variety of methods that fisheries scientists have developed for 
estimating (1) the level of mortality that can be imposed on a fish 
population without threatening its capacity to provide ``maximum 
sustainable yield'' (MSY) on a long-term basis, as developed under the 
Magnuson-Stevens Fishery Conservation and Management Act, and (2) the 
optimum population size for maintaining maximum sustainable yield.
    In evaluating such comments, EPA considered the premises underlying 
MSY and the models used by National Marine Fisheries Service (NMFS) to 
derive MSY. Because the concept of MSY is based on harvesting adult 
fish, EPA generally questions whether this approach is directly 
relevant to egg, larvae, and juvenile losses associated with intakes. 
EPA also notes that the models used to estimate MSY do not directly 
incorporate any additional stressors (such as losses from entrainment 
and impingement) to managed stocks other than fishing pressure. 
Further, it is important to note that NMFS does not always manage 
stocks to their calculated MSY. In many cases, particularly if there is 
a concern over protecting habitat or critical ecosystems, NMFS 
regulates fisheries based on their ``optimum yield,'' which is less 
than the MSY. According to the Magnuson-Stevens Fisheries Conservation 
and Management Act, ``the

[[Page 65293]]

term `optimum' with respect to the yield from a fishery, means the 
amount of fish which * * * is prescribed as such on the basis of the 
MSY from the fishery, as reduced by any relevant economic, social, or 
ecological function * * *''
    EPA also considered the relative long-term success of ongoing 
fishery management practices implemented by the National Marine 
Fisheries Service and others. Despite the availability of state-of-the-
art fish population models and considerable experience managing 
fisheries, NMFS recently classified 34 percent of their managed fishery 
stocks as over-utilized.\58\ EPA agrees with fisheries experts and 
resource managers that there is unavoidable uncertainty associated with 
managing fish populations.59 60 61 62 As a recent NMFS 
advisory panel expressed it, ``Uncertainty and indeterminancy are 
fundamental characteristics of the dynamics of complex adaptive 
systems. Predicting the behaviors of these systems cannot be done with 
absolute certainty, regardless of the amount of scientific effort 
invested.'' \63\ Consistent with its own Guidelines for Ecological Risk 
Assessment, EPA agrees with the conclusions of the NMFS panel that 
``Given the high variability associated with ecosystems, managers 
should be cognizant of the high likelihood for unanticipated outcomes. 
Management should acknowledge and account for this uncertainty by 
developing risk-averse management strategies that are flexible and 
adaptive.'' As the panel concluded, ``The modus operandi for fisheries 
management should change from the traditional mode of restricting 
fishing activity only after it has demonstrated an unacceptable impact, 
to a future mode of only allowing fishing activity that can be 
reasonably expected to operate without unacceptable impacts.'' EPA and 
other fishery scientist support the concept of a precautionary 
approach,\64\ particularly when dealing with complex systems, as 
described below.
---------------------------------------------------------------------------

    \58\ National Marine Fisheries Service. 1999. Our living oceans. 
Report on the status of U.S. living marine resources. U.S. 
Department of Commerce, NOAA tech. memo. NMFS-F/SO-41.
    \59\ Hilborn, R., and C.J. Walters. 1992. Quantitative fisheries 
stock assessment: choice, dynamics, and uncertainty. Chapman and 
Hall.
    \60\ Hilborn, R., E.K. Pikitch, and R.C. Francis. 1993. Current 
trends in including risk and uncertainty in stock assessment and 
harvest decisions. Canadian Journal of Fisheries and Aquatic 
Sciences 50:874-880.
    \61\ Hutchings, J.A., and R.A. Meyers. 1994. What can be learned 
from the collapse of a renewable resource? Atlantic cod, Gadus 
morhus, of Newfoundland and Labrador. Canadian Journal of Fisheries 
and Aquatic Sciences 51:2126-2146
    \62\ National Research Council. 1998. Improving fish stock 
assessments. National Academy Press, Washington, D.C.
    \63\ National Marine Fisheries Service Ecosystem Principles 
Advisory Panel. 1998. Ecosystem-based fishery management. A report 
to Congress.
    \64\ Dayton, P.K. 1998. Reversal of the burden of proof in 
fisheries management. Science 279:821-822.
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    EPA recognizes that the limitations of existing population models, 
including models used to manage fisheries, may be related to our 
overall limited understanding of the complexity of aquatic ecosystems 
and the long-term effects of anthropogenic activities 65 66. 
As proposed in a recent journal article, many of the adverse impacts 
identified for coastal ecosystems, such as estuarine eutrophication, 
loss of kelp beds, coral reef die-offs, and introductions of invasive 
species, were initiated by historical overfishing.\67\ Losses or 
extinctions of large vertebrate predators and filter-feeding bivalves 
such as oysters caused by overfishing have, over time, resulted in 
species replacements and significantly limited or ceased interactions 
between the overfished populations and other coastal community species. 
Historical overfishing and ecological extinctions precede both modern 
ecological investigations and the collapse of several marine ecosystems 
in recent times, ``raising the possibility that many more marine 
ecosystems may be vulnerable to collapse in the near future.'' \68\ 
Further, because modern ecological studies do not typically consider 
the long-term historical record, existing fishery resource baselines 
may be inaccurate, and ``Even seemingly gloomy estimates of the global 
percentage of fish stocks that are overfished are almost certainly far 
too low.'' \69\ Thus, EPA is concerned that historical overfishing 
increased the sensitivity of coastal ecosystems to subsequent 
disturbance, making them more vulnerable to human impact and potential 
collapse. Based on the long-term record of anthropogenic impacts to 
coastal ecosystems, their documented degradation, and their potential 
sensitivity to additional anthropogenic disturbance, as well as the 
admitted uncertainty associated with managing coastal fishery 
populations, EPA firmly believes that protective, risk-averse measures 
are warranted to prevent further declines or collapses of coastal and 
other aquatic ecosystems. EPA views impingement and entrainment losses 
to be one of many potential forms of disturbance that should be 
minimized to avoid further degradation.
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    \65\ Fogarty, M.J., A.A. Rosenberg, and M.P. Sissenwine. 1992. 
Fisheries risk assessment: sources of uncertainty. A case study of 
Georges Bank haddock. Environ. Sci. Technol. 26:440-446.
    \66\ Ludwig, D., R. Hilborn, and C. Walters. 1993. Uncertainty, 
resource exploitation, and conservation: lessons from history. 
Science 260:17 and 36.
    \67\ Jackson, J.B.C., M.X. Kirby, W.H. Berger, K.A. Bjorndal, 
L.W. Botsford, B.J. Bourque, R.H. Bradbury, R. Cooke, J. Erlandson, 
J.A. Estes, T.P. Hughes, S. Kidwell, C.B. Lange, H.S. Lenihan, J.M. 
Pandolfi, C.H. Peterson, R.S. Steneck, M.J. Tegner, and R.R. Warner. 
2001. Science 293(5530):629-638.
    \68\ Ibid.
    \69\ Ibid.
---------------------------------------------------------------------------

    Further, it remains unclear whether it is possible or sufficient to 
use single species population assessment models to assess impacts on 
multiple species, as is often necessary in evaluating impingement and 
entrainment by cooling water intake structures. NMFS now recognizes 
that improvement in fisheries management will require a comprehensive, 
ecosystem-based approach and recently convened an advisory panel to 
develop principles and approaches for ecosystem-based fishery 
management. In its report to Congress, the advisory panel noted that 
such an approach will ``require managers to consider all interactions 
that a target fish stock has with predators, competitors and prey 
species; the effects of weather and climate on fisheries biology and 
ecology; the complex interactions between fishes and their habitat; and 
the effects of fishing on fish stocks and their habitat.'' \70\ EPA 
supports the ecosystem-based approach to fisheries management advanced 
by NMFS and recognizes that this approach will require an in-depth 
understanding of species interactions. Because the ecosystem-based 
approach is currently evolving, EPA believes it is unlikely that most 
existing single species population models can accurately account for 
multiple-species interactions.
---------------------------------------------------------------------------

    \70\ NMFS Ecosystem Principles Advisory Panel. 1998. Ecosystem-
based fishery management. A report to Congress.
---------------------------------------------------------------------------

    EPA also considered information addressing the issue of 
compensation--an increase that may potentially occur in survival, 
growth, or reproduction of a species triggered by reductions in 
population size 71 72--and its application to the section 
316(b) rulemaking. In particular, EPA sought comment on a memorandum 
discussing compensation and the quantity of data required to calculate 
compensation factors (DCN #2-020C). This document states that the use 
of compensation factors is typically

[[Page 65294]]

limited to cases in which fishery managers have extensive data on a 
fish population and that specific, numerical compensation values 
generally are not used in the absence of robust data sets (i.e., 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, \73\ and few data exist for most 
nonharvested species. This memorandum also noted that in the absence of 
sufficient data various proxies are typically used to avoid 
quantitatively determining compensation.
---------------------------------------------------------------------------

    \71\ Rose, K.A., J.H. Cowan, Jr., K.O. Winemiller, R.A. Myers, 
and R. Hilborn 2001. In press. Compensatory density-dependence in 
fish populations: importance, controversy, understanding, and 
prognosis. In press, Fish and Fisheries.
    \72\ Goodyear, C.P. 1980. Compensation in fish populations. In 
Biological monitoring of fish, ed. C.H. Hocutt and J.R. Stauffer, 
pp. 253-280. Lexington Books, Lexington, MA.
    \73\ Myers, R.A., J. Bridson, and N.J. Barrowman. 1995. Summary 
of worldwide stock and recruitment data. Canadian Technical Reports 
in Fisheries and Aquatic Science 2024:1-327.
---------------------------------------------------------------------------

    In general, commenters asserted that compensation is a well-
documented property of population regulation and that, despite 30 years 
of studies, there was no evidence that power plant impacts alone could 
reduce a population's compensatory reserve. Other comments specific to 
the memorandum concurred that, in the absence of sufficient data, 
compensation may be indirectly assessed using spawner-recruit models 
and that more than 100 marine and estuarine shellfish populations are 
currently managed by NMFS and other fisheries commissions using these 
proxies. One commenter provided information pertaining to new 
scientific studies of compensatory reserve and large databases 
containing fisheries information that are currently under development. 
The commenter asserted that use of meta-analysis--defined as the 
process of combining and assessing findings from several separate 
research studies that bear upon a common scientific problem--in 
conjunction with expanded fishery data sets will greatly increase the 
number of species for which scientists can estimate compensatory 
reserves. The commenter maintained that more and better estimates of 
compensatory reserve will be developed by the end of the decade, and 
requested that EPA take this trend into consideration. In contrast, 
another commenter asserted that industry abuses compensation theories 
and density-dependent models to support their contention that killing 
millions of fish is not ecologically relevant nor does it equate to an 
adverse environmental impact. The commenter further contended that 
there was a lack of scientific support for density-dependent models and 
provided references from peer-reviewed journals that critique and 
challenge the scientific underpinnings of these models.
    EPA believes that a population's potential compensatory ability is 
affected by all stressors encountered within the population's natural 
range, including takes attributed to individual or multiple cooling 
water intake structures. Thus, even if there is little evidence that 
cooling water intakes alone reduce a population's compensatory reserve, 
EPA is concerned that the multitude of stressors experienced by a 
species can potentially adversely affect its ability to recover. \74\ 
Moreover, EPA notes that the opposite effect may occur when populations 
are low, a phenomenon known as ``depensation.'' Depensation refers to 
decreases in recruitment as stock size declines. \75\ Because 
depensation can lead to further decreases in the abundance of 
populations that are already seriously depleted, recovery may not be 
possible even if stressors are removed. In fact, there is some evidence 
that depensation may be a factor in some recent fisheries 
collapses.76 77 78
---------------------------------------------------------------------------

    \74\ Hutchings, J.A. and R.A. Myers. 1994. What can be learned 
from the collapse of a renewable resource? Atlantic cod, Gadus 
morhus, of New Foundland and Labrador. Canadian Journal of Fisheries 
and Aquatic Sciences 51:2126-2146.
    \75\ Goodyear, C.P. 1977. Assessing the impact of power plant 
mortality on the compensatory reserve of fish populations. Pages 
186-195 in W. Van Winkle, ed., Proceedings of the Conference on 
Assessing the Effects of Power-Plant Induced Mortality on Fish 
Populations. Pergamon Press, New York, NY.
    \76\ Myers, R.A., N.J. Barrowman, J.A. Hutchings, and A.A. 
Rosenberg. 1995. Populations dynamics of exploited fish stocks at 
low population levels. Science 26:1106-1108.
    \77\ Hutchings, J.A. and R.A. Myers. 1994. What can be learned 
from the collapse of a renewable resource? Atlantic cod, Gadus 
morhus, of New Foundland and Labrador. Canadian Journal of Fisheries 
and Aquatic Sciences 51:2126-2146.
    \78\ Liermann, M. and R. Hilborn. 1997. Depensation in fish 
stocks: A hierarchic Bayesian meta-analysis. Can J. Fish. Aquat. 
Sci. 54:1976-1985.
---------------------------------------------------------------------------

    Because EPA's mission includes ensuring the sustainability of 
communities and ecosystems, EPA must comprehensively evaluate all 
potential threats to resources, and work towards eliminating or 
reducing identified threats. EPA believes that cooling water intakes do 
pose a threat to some fishery stocks and through this rule is seeking 
to minimize that threat. EPA also acknowledges that spawner-recruit 
proxies are currently used by several agencies to manage fishery 
stocks. However, as indicated in the record, these proxies are used in 
the absence of robust data sets. EPA does not believe that simply 
because an approach is currently in place, it constitutes the best 
approach. Given the uncertainty associated with managing fish stocks 
and the degree of stock overutilization despite long-term management 
efforts (see earlier discussion in Section VI.B.2.c.), EPA is concerned 
about the relative accuracy of these proxies and their overall ability 
to protect fishery stocks. EPA does not discourage development of new 
data sets, population models, or other scientific investigations that 
will improve estimates of compensatory reserve or other parameters that 
are needed to understand fishery dynamics. In fact, it is EPA's belief 
that these developments are ongoing due to the acknowledgment--direct 
or otherwise--that existing data and models are inadequate. Under the 
consent decree schedule, EPA is required to promulgate today's rule 
based on its interpretation of current science and EPA agrees with all 
comments discussed above that there are some weaknesses and potential 
inaccuracies inherent to existing estimations of compensation. EPA 
strongly supports additional research efforts and the development of 
expanded fisheries data sets that can be used to fill information gaps 
and improve our understanding of the complex relationships associated 
with aquatic ecosystems, fishery populations, and anthropogenic 
activities and, ultimately, assist NMFS and other agencies in wisely 
managing fishery resources. Because fishery resources are so precious, 
EPA further contends that compensation studies and models currently 
under development--including the data on which they are based--should 
be subject to peer review and other measures that will ensure their 
scientific rigor.
    EPA also evaluated 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. In summary, these comments and documents asserted 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 asserted or were intended to support the assertion that 
impingement survival was 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 asserted that EPRI and some

[[Page 65295]]

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 as described by EPA in the proposed rule.
    In response to comments that entrainment of very large numbers of 
eggs, larvae, and other life stages of fish do not meaningfully affect 
populations of entrained species, EPA believes that there is evidence 
that some fish stocks have been adversely affected by cooling water 
intakes. For example, Atlantic Coast States have expressed concern over 
declines in winter flounder populations and have requested that the 
Atlantic States Marine Fisheries Commission conduct a study of the 
cumulative effects of cooling water intakes on winter flounder 
abundance. In addition, NMFS documented in several fishery management 
plans that cooling water intake structures are one of the threats that 
may adversely affect fish stocks and their habitats (DCN# 2-024M, 2-
024N, and 2-024O). EPA also is concerned that an extensive data set, 
encompassing 20 or more years of monitoring data, is usually required 
to adequately assess whether or not populations are being affected by 
intakes. These long-term data sets are not currently available for many 
species, and thus it is very difficult to confidently state that 
entrainment has a negligible impact on any fish population. EPA also 
notes that the potential compensatory reserve of some fishery stocks 
can be depleted beyond the point of recovery \79\ and that the 
compensatory reserve of many species entrained or impinged by intakes 
is unknown. For all of these reasons, EPA believes that the potential 
for entrainment impacts exists, and that additional scientific data are 
needed to evaluate entrainment impacts on all affected fish and 
shellfish populations.
---------------------------------------------------------------------------

    \79\ Hutchings, J.S. and R.A. Myers. 1994. What can be learned 
from the collapse of a renewable resource? Atlantic cod, Gadus 
morhus, of New Foundland and Labrador. Canadian Journal of Fisheries 
and Aquatic Sciences 51:2126-2146.
---------------------------------------------------------------------------

    In response to assertions that many organisms survive entrainment, 
EPA maintains that studies show that through-plant mortality rates of 
young fishes vary depending on numerous factors. \80\ Different species 
have different tolerance to passage through a cooling system, and 
mortality rates may differ among life stages of the same species. A 
summary of mortality data from five Hudson River power plants showed 
that mortality rates could be substantial.\81\ The report cited 
species-specific mortality rates that varied by life stage for bay 
anchovy (93 to 100 percent), Atlantic tomcod (0 to 64 percent), 
herrings (57 to 92 percent), white perch (41 to 55 percent), and 
striped bass (18 to 55 percent). The study further emphasized that the 
reliability of these estimates was questionable and that various 
sources of potential bias may have caused the estimated rates to be 
lower than the actual mortality rates. EPRI sponsored a recent review 
of 36 entrainment survival studies, the majority of which were 
conducted in the 1970s. 82 83 The summarized mortality rates 
described by EPRI were in substantial agreement with patterns reported 
in the Hudson river summary, namely that anchovies and herrings had the 
highest mortality rates (greater than 75 percent), and that thermal 
regimes seemed to be important determining factors.
---------------------------------------------------------------------------

    \80\ EPRI. 2000. Review of entrainment survival studies: 1970-
2000. Report No. 1000757. Prepared by EA Engineering Science & 
Technology.
    \81\ Boreman, J., L.W. Barnthouse, D.S. Vaughan, C.P. Goodyear, 
S.W. Christensen, K.D. Kumar, B.L. Kirk, and W. Van Winkle. 1982. 
The impact of entrainment and impingement on fish populations in the 
Hudson River Estuary: volume I, Entrainment impact estimates for six 
fish populations inhabiting the Hudson River Estuary. Prepared for 
the U.S. Nuclear Regulatory Commission, Office of Nuclear Regulatory 
Research by the Oak Ridge National Laboratory. ORNL/NUREG/TM-385/V1.
    \82\ Electric Power Research Institute. 2000. Review of 
entrainment survival studies: 1970-2000. No 1000757. Prepared by EA 
Engineering Science & Technology.
    \83\ Some of the studies summarized in EPRI (2000) are the same 
ones considered by Boreman et al. (1982). See EPRI (2000) for 
complete citations of 36 original studies.
---------------------------------------------------------------------------

    Similar to entrainment survival, EPA notes that studies show 
impingement survival is dependent on species characteristics such as 
and life history stage, swimming ability, etc.\84\ Impingement survival 
is also dependent on the type of technology in place and the 
operational aspects of the intake. EPA is aware that in some cases, 
with appropriate technologies in place, impingement survival may be 
substantial for some species.\85\ EPA is also aware that impingement 
survival studies suggest that impingement survival is low for some 
species such as small bay anchovy and Atlantic menhaden during summers 
in Atlantic Coast estuaries.\86\ EPA does not believe that loss of such 
forage species should be viewed as having limited importance simply 
because they have minimal or no commercial or recreational value. From 
a more holistic, ecological perspective, forage species can have great 
importance in their role as prey for higher trophic levels, including 
many commercially and recreationally important fish species. In today's 
rule, EPA seeks to minimize impingement losses for all affected 
species.
---------------------------------------------------------------------------

    \84\ EPRI. 2000. Technical evaluation of the utility of intake 
approach velocity as an indicator of potential adverse environmental 
impact under Clean Water Act section 316(b). Report No. 100731, 
EPRI, Palo Alto, CA.
    \85\ Ibid.
    \86\ Ibid.
---------------------------------------------------------------------------

d. 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.\87\ EPA invited comment on the following discussion and documents 
that identified 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 waterbody types where many cooling water intake structures 
are located. Second, although biological assessment and criteria 
guidance has been published by EPA for small streams and wadeable 
rivers, lakes and reservoirs, and estuaries and coastal marine waters, 
many States and authorized Tribes have yet to apply these criteria in 
large waterbodies where cooling water intake structures will be 
located. Most work to date by the States to use these methods was 
applied to small streams and wadeable rivers where relatively few 
cooling water intake structures are located. In addition, although 
bioassessments and criteria are valuable for evaluating the biological 
condition of a waterbody, in complex situations where multiple 
stressors are present (e.g., point source discharges, non-point source 
discharges, harvesting, runoff, hydromodifications, habitat loss, 
cooling water intake structures, etc.), it is not well understood how 
to identify all the different stressors affecting the biology in a 
waterbody and how best to apportion the relative contribution to the 
biological impairment of the stressors from each source within a 
watershed. Thus, it is the opinion of EPA that the existing guidance 
for conducting biological assessments (particularly within large river 
systems and the Great Lakes) and the quantity of biocriteria data 
compiled at the State/Tribal level are insufficient at this time to 
apply a biocriteria approach to

[[Page 65296]]

evaluation of cooling water intakes nationally.
---------------------------------------------------------------------------

    \87\ Davis, W.S. and T.P. Simon, eds. 1995. Biological 
assessment and criteria: tools for water resource planning & 
decision making. Lewis Publishers, Boca Raton, FL.
---------------------------------------------------------------------------

    EPRI also questioned the applicability of bioassessments for 316(b) 
analyses. Specifically, EPRI developed a document that examined the 
suitability of multimetric bioassessment for regulating cooling water 
intake structures under section 316(b) of the CWA.\88\ In its 
conclusion, EPRI stated that biocriteria are well suited for assessing 
community-level effects, but are not designed as indices for measuring 
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 structured on multiple 
time and space scales; and that issues such as significant uncertainty 
related to identification of reference conditions remain unresolved, 
particularly for large, open systems such as estuaries and coastal 
marine waters.
---------------------------------------------------------------------------

    \88\ EPRI. 2000. 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. Report No. 
TR-114007, EPRI, Palo Alto, CA.
---------------------------------------------------------------------------

e. Non-Aquatic Environmental Impacts
    EPA invited comment in the proposal on whether adverse 
environmental impact should be defined broadly to consider non-aquatic 
adverse environmental impacts in addition to aquatic impacts (65 FR 
49075). EPA also discussed the water quality and non-water quality 
impacts of cooling towers (both wet and dry) in the proposal (see 65 FR 
49075 and 65 FR 49081). In the NODA, EPA outlined its methodology for 
estimating marginal increases in air emissions from electric generating 
facilities due to the adoption of wet or dry cooling towers (66 FR 
28867).
    Some commenters asserted that EPA failed to consider potential 
adverse environmental impacts associated with evaporative cooling 
towers. One commenter stated that evaporative cooling towers carry some 
potential for localized impact apart from their extraction of cooling 
water, because they may discharge bacterial slimes, fungi, and a 
variety of organisms which colonize the tower but are not otherwise 
native to the local ecosystem. The commenter added that such organisms 
can be suppressed by the use of biocides that may be discharged with 
the effluent. In addition, the commenter claimed that evaporative 
towers may concentrate nutrients such as phosphates and, when brackish 
or marine water is used, discharge salt spray drift. Additionally, one 
commenter stated that although there is no express statutory support in 
section 316(b) for limiting consideration to aquatic impacts (see 33 
U.S.C. 1326(b)) they believe that the analysis of such impacts can be 
appropriate. Further, the commenter encouraged EPA to consider non-
aquatic impacts which relate to cooling towers. Other commenters stated 
that Congress' mandate for environmental impact is broader than the 
entrainment and impingement impacts upon which EPA has focused in the 
proposed regulation. The commenters urged EPA to consider the following 
effects of the cooling tower technology: (1) Increased air emission due 
to the ``energy penalty'' exacted by closed-cycle cooling, or dry 
cooling; (2) noise; (3) visible plumes that (a) are unaesthetic, and 
(b) contribute to increased fogging and icing on nearby roadways; and 
(4) salt drift. The commenters added further that of all the 
technologies associated with cooling condenser water, once-through 
cooling is the only technology that is not associated with increased 
air emissions. According to the comments, the other cooling water 
technologies either directly emit contaminants into the air and/or 
indirectly result in an increase of fuel use and air emissions due to 
the loss of electrical generation capacity by the power used to operate 
these technologies. The comments stated that, in essence, the proposed 
regulations pre-determine that air and noise impacts are more 
acceptable than impacts to aquatic resources and water quality. The 
comments added that the locations least likely to be able to comply 
with the requirements, like those in urban areas, are also the most 
likely to have impaired air quality. One commenter maintained that for 
recirculated systems, cooling tower blowdown must be stored in 
evaporation ponds or treated prior to discharge, resulting in potential 
for groundwater impacts and disturbance of terrestrial habitats. 
Additional commenters stated that there could be unintended air 
pollution consequences for manufacturers from the 316(b) rule due to 
adoption of cooling towers. The forest products industry projects an 
increase in SO2, NOX, PM, and CO2 
emissions due to increased energy demand to run their mills. Other 
commenters stated that EPA must ensure that new cooling water 
technologies do not increase fossil fuel use by manufacturers.
    Conversely, some commenters stated that the primary environmental 
concern with intake structures should be those focused on the aquatic 
environment. They added that while non-aquatic concerns are valid and 
should be considered secondarily, the main effect of these facilities 
is to the aquatic communities and the decision-making process should 
reflect this priority. Further, one commenter recommended that the 
regulation, (and probably more specifically the guidance), allow 
States, authorized Tribes, permitting authorities, and facility 
operators to have sufficient flexibility to consider non-aquatic 
impacts that may result from activities related to the design, 
construction, location, and operation of an intake structure and other 
alternative technologies identified as having a harmful effect on air, 
lands, and other natural resources when making section 316(b) 
decisions. One commenter claimed that a large array of environmental 
laws and regulations already exist to address non-water environmental 
impacts. Some commenters asserted that the potential for localized 
impact from wet cooling towers is relatively minor given the 
substantial improvements in entrainment and impingement and the 
elimination of thermal impacts associated with wet cooling as compared 
to once-through cooling.
    For the final rule, EPA presented estimates of marginal annual 
increases in air emissions associated with installing recirculating wet 
cooling towers in lieu of once-through cooling systems. The Agency 
compared projected emissions under the rule to projected emissions 
absent the rule. Because EPA projects that, regardless of the outcome 
of the rule (that is, absent the regulations) a majority of power 
plants would have recirculating wet cooling towers and a minority would 
have once-through or dry cooling systems, the number of in-scope 
facilities contributing to increased air emissions is small. 
Regardless, EPA estimates that the following annual air emissions 
increases will occur as consequence of the rule: 2,560 tons of 
SO2, 1,200 tons of NOX, 485,900 tons of 
CO2, and 16 pounds of Hg. These increases represent a change 
of less than 0.02 percent of annual emissions from power plants in the 
United States. Air emissions for manufacturing facilities projected 
within the scope of the rule are projected to not increase. This is due 
to the fact that EPA projects manufacturers to utilize reuse and 
recycling of cooling water to meet the flow reduction requirements in 
lieu of recirculating wet cooling towers. For the other regulatory 
options analyzed for the final rule, EPA presented annual air

[[Page 65297]]

emissions estimates in Chapter 3 of the Technical Development Document.
    To a large degree, issues brought forth by commenters regarding 
non-aquatic impacts of cooling towers were highly site-specific. For 
instance, in the cases where visible plumes from evaporative cooling 
towers was a significant issue for the public and other stakeholders on 
the local level, alternative or additional technologies have been 
adopted in response to stakeholder sentiment. The two-track regulatory 
framework adopted by EPA in the final rule allows for this local, site-
specific decision-making process. In the case where facilities, or 
public stakeholders, determine that an alternative technology to a 
traditional flow reducing type (such as recirculating wet cooling 
towers or cooling ponds) is necessary, the two-track methodology 
provides the flexibility for an equivalent aquatic environmental impact 
minimization to occur without producing a non-aquatic impact.
    In general, EPA has concluded that at a national level the primary 
impacts of this rule will be aquatic in nature, and focus on 
impingement and entrainment affects. Nevertheless, at a local level, it 
is possible that air quality impacts, non-impingement and entrainment 
aquatic effects, or energy impacts could be significant and potentially 
justify a different approach to regulating cooling water intake 
structures. Moreover, the cost impact of the rule, under certain local 
conditions, could be wholly disproportionate to costs anticipated by 
EPA on a national level. EPA believes that it is prudent to make an 
alternative regulatory mechanism available to the permitting authority 
to address such situations, and to be used at the permitting 
authority's discretion. EPA is sensitive to the large resource burden 
which such flexibility could place on the permitting authority, if this 
mechanism were abused by permit applicants. Therefore, EPA is placing 
the burden of demonstration of the need to pursue such alternative 
regulatory limits entirely on the permit applicant.
    In this final rule for new facilities, where EPA is concerned about 
certainty and speed of permitting, EPA has selected impingement and 
entrainment as the metric for performance. EPA has considered the non-
impingement and entrainment environmental impacts of the new facility 
rule and has found them to be acceptable on a national level. EPA is 
currently developing proposed regulations to establish the best 
technology available for minimizing adverse environmental impact from 
intake structures associated with existing facilities. The studies EPA 
has done of non-impingement and entrainment impacts in the case of new 
facilities would not govern in that context. Accordingly, the standard 
and procedures EPA develops for assessing adverse environmental impact 
from intake structures at existing facilities may well be quite 
different, and nothing in this rulemaking should preclude EPA from 
coming to the conclusion that a different approach for regulating 
cooling water intake structures at existing facilities is warranted.
3. Additional Information Indicating 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 considered information 
suggesting that impingement and entrainment, in combination with other 
factors, may be a nontrivial stress on a waterbody. EPA recognizes that 
cooling water intake structures are not the only source of human-
induced stress on aquatic 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 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 examined 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 considered use of this type of information as one 
approach for evaluating adverse environmental impact.
    EPA prepared a memorandum (Dabolt, T. EPA. April 18, 2001, revised 
July 2001. Memo to file Re: 316(b) analysis-relationship of location to 
cooling water intake structures to impaired waters) documenting that 99 
percent of existing cooling water intake structures at facilities that 
completed EPA's section 316(b) industry survey 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 (TMDL) 
to restore the waterbody to its designated use. All of the leading 
sources of waterbody impairment--nutrients, siltation, metals, and 
pathogens--can affect aquatic life. In the 1998 National Water Quality 
Inventory, inability to support aquatic life uses was one of the most 
frequently cited water quality concerns.
    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). Nonetheless, this analysis suggests 
that many cooling water intake structures are sited within or adjacent 
to impaired waters, and that intakes potentially contribute to existing 
stress on waterbodies and their resident biota.
    EPA also summarized information from a number of sources indicating 
overutilization of about 34 percent of the fishery stocks whose known 
status is tracked by and under National Oceanic and Atmospheric 
Administration's (NOAA) purview (54 out of 160 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 percent of the fisheries managed by NOAA) 
because of incomplete assessments. In addition, NOAA documents in a 
number of their fishery management plans that cooling water intake 
structures, particularly 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 believes that stress due to overutilization may be relevant 
to assessing cumulative impacts of multiple stressors, including 
cooling water intake structures.

C. Location

    The proposed rule outlined a framework in which intakes located in 
certain sections of a waterbody would be subject to varying levels of 
restrictions. Specifically, intakes located within the broadly defined 
littoral zone or in especially sensitive waterbodies (estuaries and 
tidal rivers) would face additional restrictions on intake flows and 
intake velocity. Intakes located outside these higher priority waters 
would be subject to decreased levels of regulation. See the proposed 
rule for a

[[Page 65298]]

detailed discussion of the framework set forth. (Section VIII.A.2., 
pages 49083 to 49085.)
    Numerous comments were received on the proposed requirements for 
location, nearly all of which opposed the proposal. In the most general 
sense, many commenters agreed with the concept of protecting waters 
that are more productive. However, most commenters also argued that the 
proposed approach was scientifically and technically flawed and would 
be extremely difficult to implement. The comments can be divided into 
several generic categories: importance of location for an intake, 
general comments on the use of the littoral zone as a regulatory 
concept, and specific comments regarding the littoral zone definitions 
for each waterbody type.
    In the NODA, EPA further explored the issue of intake location by 
soliciting comments on a revised definition of littoral zone and 
revised requirements for several waterbody types including the Great 
Lakes, and for waters not designated to support aquatic life use.
    Comments on the NODA generally reiterated issues raised in the 
comments on the proposed rule. Commenters agreed that location is an 
important factor in assessing the impacts of cooling water intake 
structure, but that creating a regulatory framework to specifically 
address locational issues would be extremely difficult.
    After reviewing the available data and comments regarding intake 
location, EPA has elected not to vary requirements for new facilities 
on the basis of whether a cooling water intake structure is located in 
one or another broad category of waterbody type or in a broadly defined 
zone of higher productivity or sensitivity within certain types of 
waterbody. Instead, EPA has promulgated technology-based performance 
requirements for new facilities that defines best technology available 
for minimizing adverse environmental impact in all waterbody types. 
This prescription for best technology available for minimizing adverse 
environmental impact recognizes the site-specific nature of biology and 
other locational factors by allowing the permit applicant in Track I to 
select and implement certain design and construction technologies after 
a review of available information on the site. Facilities that choose 
not to follow the specific technology-based performance requirements in 
Track I may opt for Track II and, after site-specific study, seek to 
demonstrate equivalent protection of the aquatic resources in a given 
waterbody from impingement and entrainment by using alternative 
technologies or approaches.
    While EPA continues to believe that it could have established 
different requirements based on general information about the 
productivity of water bodies, EPA decided for the new facility rule 
that introducing separate requirements for different water bodies was 
unnecessary in light of the strong record support that the track I 
requirements are technically available and economically practicable for 
new facilities and in light of the flexibility provided by Track II 
where the applicant demonstrates that it can use different technologies 
to reduce impacts to fish and shellfish to a level comparable to the 
level that would be achieved if they implemented Track I requirements 
at their site.
    EPA did not vary the performance requirements based on waterbody 
type because it found problems in defining and implementing a littoral 
zone approach (as discussed below) and found that reducing impingement 
mortality and entrainment on fresh water bodies to a comparable level 
as in estuaries and oceans to be technically feasible and economically 
practicable.
1. Importance of Intake Location
    Several commenters agreed with EPA that location is an important 
factor in assessing the impact of a cooling water intake structure. One 
commenter added that location is also critical to the technical 
feasibility of the facility, because the site characteristics with 
respect to hydrology, land area available, and other factors can 
greatly influence the viability of a facility. Other commenters 
supported the waterbody-specific approach, but in the context that 
adverse environmental impact is a site-specific or even species-
specific phenomenon. Another commenter disagreed with the proposed 
delineation of waterbody types, stating that adverse impacts can be 
found at all waterbody types and both in and outside the littoral zone. 
Therefore, equal protection should be afforded to all waters under the 
regulation. One commenter opposed the approach involving waterbody 
types, since defining distinct types is difficult, and noted that a 
site-specific approach would be more appropriate. Another commenter 
argued that the effectiveness of intake technologies varies by 
location, thereby supporting a site-specific approach.
    EPA agrees that location is an important factor in addressing 
cooling water intake structure impacts, and, in Track I, permit 
applicants must select and implement certain design and construction 
technologies after considering site-specific conditions. In Track II, 
permit applicants have complete flexibility to address site-specific 
conditions, provided they can reduce impacts to fish and shellfish to a 
level comparable to the level that would be achieved if they 
implemented Track I requirements at their site.
2. General Comments on the Use of the Littoral Zone Concept
    Many commenters made general statements of opposition to the use of 
the concept of littoral zone as part of the proposed rule, each for a 
variety of reasons. Most of the comments expressed concern over one or 
more of the following issues: The proposed definition and approach is 
too broad and untenable; the conditions used to define the littoral 
zone can vary greatly on an annual basis; the proposal is poorly 
supported by the scientific literature; and the proposal is a poor 
proxy for biological productivity and ignores ecological complexity and 
site-specific conditions. In general, commenters acknowledged that some 
areas of a waterbody are more sensitive to cooling water intake 
structure impacts but disagreed with EPA's approach for defining the 
concept. For example, the term ``area of high impact,'' proposed in the 
NODA, represented an improvement over the term ``littoral zone,'' but 
commenters noted that the proposed term still lacked a clear 
definition. One commenter further noted that a site-specific approach 
would allow for a more thorough analysis of a waterbody and account for 
these sensitive areas. Another commenter argued that the approach was 
inappropriate, because EPA does not have the authority to establish 
less restrictive requirements in some waterbodies.
    EPA recognizes that most commenters, albeit for a variety of 
sometimes conflicting reasons, do not support use of a littoral zone or 
similarly broad concept to specify requirements for best technology 
available for minimizing adverse environmental impact. EPA instead has 
adopted a two-track framework in which permit applicants can fully 
address site-specific factors in proposing what technologies or 
alternatives they will use to reduce impingement and entrainment to 
levels readily achievable with use of low-cost, widely used 
technologies.

[[Page 65299]]

3. Specific Comments on the Definition or Applicability of the Littoral 
Zone
a. Littoral Zone--Oceans
    Most commenters opposed the proposed definition and use for oceanic 
littoral zones. Generally, commenters saw it as too broad, vague, and 
unsupported by scientific literature, although one commenter did 
disagree with a reduced level of protection for oceanic waters. Some 
commenters noted that the entire continental shelf could be interpreted 
as the littoral zone under the proposed definition. Other commenters 
disagreed with the usage of salinity as a defining criterion, noting 
that many environmental factors (e.g., seasonality, tides, weather) can 
influence the salinity levels and therefore alter the geographic 
location of the littoral zone. One commenter added that some estuarine 
waters could possibly be classified as oceanic waters, thus reducing 
the level of protection required by the regulation. Commenters were 
also asked to comment on a proposed fixed distance from shore as a 
definition of the littoral zone. Some commenters did support a fixed 
distance (from 200 to 500 meters offshore) but most commenters opposed 
the proposed definition, because of the need to recognize site-specific 
characteristics, such as biological resources, areas of high 
productivity, and waterbody size and configuration, at each facility. 
Many of the same comments opposing the fixed-distance approach are 
echoed in the general comments about the inadequacy of the littoral 
zone approach noted above.
    For the reasons discussed above, EPA has adopted an alternative 
regulatory structure and will not in this rule set nationally defined 
areas within oceans where different requirements apply for best 
technology available for minimizing adverse environmental impact.
b. Littoral Zone--Freshwater Rivers
    Only a few of the comments received addressed freshwater rivers and 
streams, but those few comments raised concerns over the proposed 
definition of the littoral zone. One commenter noted that, generally, 
the flow, turbidity, and seasonality at a site can greatly affect the 
vegetation and light penetration, thereby affecting the extent of the 
littoral zone. This commenter also added that riverine intakes are 
often shoreline intakes and noted that the definition would be 
difficult to apply to intakes because of hydrologic factors such as 
meanders and shoreline construction techniques. Another commenter 
submitted additional data and analysis supporting the concept that 
freshwater lakes and rivers are less vulnerable to the effects of 
impingement and entrainment than other types of waterbodies.
    Today's final rule adopts a different regulatory framework--a two-
track approach--and does not set different requirements for best 
technology available for minimizing adverse environmental impact for 
different parts of freshwater rivers. Instead, under Track II, an 
applicant may conduct site-specific studies and possibly determine that 
a different cooling water intake structure location within the 
waterbody would reduce impingement mortality and entrainment to a level 
of reduction comparable to the level achieved under Track I 
requirements at a lower cost. If so, the applicant is free to propose 
an alternative location for its intake in its permit application.
c. Littoral Zone--Lakes and Reservoirs
    One commenter noted that site-specific factors must be considered 
when locating a cooling water intake structure. The commenter argued 
that it was not necessarily true that intakes located in the littoral 
zone of lakes or reservoirs impact more species or species having 
higher economic value compared to intakes sited offshore. The commenter 
also stated that based on its experience, the dominant species 
entrained and impinged within lake systems were forage species (e.g., 
gizzard shad, alewife, smelt) regardless of intake location.
    EPA agrees that it is important to consider site-specific factors 
when identifying the most appropriate location for a cooling water 
intake structure. As discussed above, under a Track II approach, an 
applicant may conduct site-specific studies to determine where best to 
site its intake (inshore or offshore) as long as it can be proven that 
the chosen location would reduce the level of impingement mortality and 
entrainment of all stages of fish and shellfish to a level of reduction 
comparable to the level the facility would achieve under the Track I 
requirements. However, EPA does not agree that the susceptible life 
history stages of lake forage species (such as those listed by the 
commenter) are as likely to be impinged or entrained at an offshore 
intake as an intake located inshore. Basic life history information for 
many forage species documents that spawning events and juvenile stages 
often occur in nearshore lake waters. As an example, young-of-the-year 
gizzard shad form schools and are usually found close inshore within 
shallow waters overlying mud bottom (Dames & Moore, 1977). Similarly, 
although adult alewifes typically inhabit deep, pelagic waters of 
landlocked lakes, they migrate to harbors and nearshore waters to spawn 
in spring and early summer.
d. Littoral Zone--Estuaries and Tidal Rivers
    Commenters were more divided in their comments on estuaries and 
tidal rivers. Some commenters generally supported the proposed 
definition of an estuary and the increased level of protection for 
these waters. Others noted that the proposed definition greatly 
oversimplified its ecological function, since not all areas within an 
estuary are equally productive. Another commenter noted that the 
proposed rule applied the greatest level of restrictions to the 
waterbody type with the greatest heterogeneity. Several commenters 
expressed concern over the use of salinity as a delineation tool, 
noting the tendency for the 30 ppm gradient to move within the 
waterbody.
    Based on facility size, EPA is setting the same performance-based 
technology requirements for tidal rivers and estuaries as for all other 
waterbodies under Track I of the final rule. To the extent that site-
specific characteristics of a proposed facility location make the Track 
I requirements more or less effective at reducing impingement and 
entrainment, the facility choosing to pursue Track II will have a site-
specific goal for evaluating the efficacy of alternative technologies 
and approaches.
4. Waters Not Designated To Support Aquatic Life Uses
    In the NODA, EPA requested comment on the issue of less stringent 
requirements for facilities located on waterbodies that are not 
designated to support aquatic life. One commenter supported less 
stringent requirements than proposed, requesting that facilities 
located on waters not designated to support aquatic life be exempt from 
the 316(b) regulations. This commenter also noted that such an 
exemption would not necessarily be permanent, since States have the 
authority to reclassify waters to again support aquatic life. Another 
commenter did not support the proposed approach. A third commenter 
argued that the CWA does not allow for exemptions from technology-based 
requirements on the basis of the designated use of the receiving 
waters. Some commenters submitted specific examples of impaired 
waterbodies and listed nutrient enrichment as one of the causes of 
impairment.
    Today's final rule does not establish less stringent requirements 
for waterbodies not designated to support

[[Page 65300]]

aquatic life use. However, to the extent that the lack of an aquatic 
life use would result in Track I requirements achieving limited 
reductions in impingement and entrainment at a site, a permit applicant 
willing to conduct site-specific studies under Track II might be able 
to demonstrate that alternative technologies or approaches would reduce 
the level of impingement mortality and entrainment to a level of 
reduction comparable to the level the facility would achieve if it met 
the Track I requirements at that location. EPA addressed use impairment 
and the stress that cooling water intake structures may add to impaired 
waterbodies at VI. B. above.
D. Flow and Volume
    Under the proposed rule, EPA proposed limitations on intake flow 
and volume for new facilities that varied depending on the type of 
waterbody upon which the facility is to be located. Specifically, 
intake flows at facilities whose cooling water intake structure 
withdraws from freshwater lakes and rivers would be limited to the 
lower of five (5) percent of the source water body mean annual flow or 
twenty-five (25) percent of the 7Q10. Facilities located on lakes and 
reservoirs would be limited to intake flows that do not disrupt, alter 
the natural thermal stratification or turnover pattern (where present) 
of the source water except in cases where the disruption is determined 
to be beneficial to the management of fisheries for fish and shellfish 
by any fishery management agency(ies). Intakes in tidal rivers and 
estuaries would be limited to no more than one (1) percent of the 
volume of the water column in the area centered about the opening of 
the intake, with a diameter defined by the distance of one tidal 
excursion at the mean low water level. The additional requirement of 
intake flow commensurate with that of a closed-cycle recirculating 
cooling water system was proposed for intakes located in either 
estuaries and tidal rivers or the littoral zone of any waterbody.
    EPA requested comment on each proposed limitation by waterbody 
type, unique situations such as the Great Lakes, and the introduction 
of more stringent flow requirements for intakes in estuaries, tidal 
rivers, and littoral zones.
    In general, commenters opposed the proposed flow and volume 
limitations. They argued that EPA did not present a link between intake 
flows and adverse impact, that the limits are based on questionable 
grounds, and that EPA lacked the authority to enact such limits, and 
against specific items in each proposed waterbody limitation.
    On the basis of the supporting data presented in the proposed rule 
and the NODA, Track I and Track II of today's final rule maintain the 
proposed flow limitations with some changes. EPA believes the record 
contains ample evidence to support the proposition that reducing flow 
and capacity reduces impingement and entrainment, one measure of 
adverse environmental impact, and may reduce stress on higher levels of 
ecological structure including population and communities. (See, #2-
029, 2-013L-R15 and 2-013J). EPA also has determined that a capacity- 
and location-based limit on withdrawals in certain waterbody types is 
an achievable requirement that will have little or no impact on the 
location of cooling water intake structures projected to be built over 
the next 20 years.
1. Relation of Flow and Capacity to Impact
    Several commenters disagreed with EPA's contention that a high 
intake flow volume necessarily corresponds to higher rates of adverse 
environmental impact. Commenters pointed to several facilities with 
relatively high intake volumes that reported no significant loss of 
aquatic life due to entrainment or impingement. The commenters asserted 
that, collectively, these cooling systems showed no significant impact 
on the recovery of impaired aquatic species or on the overall health of 
the aquatic population. By contrast, some commenters faulted EPA's 
proportional flow requirements for failing to account for cumulative 
impacts in waterbodies that have been previously designated as 
sensitive. In their view, such waters would suffer a disproportionate 
impact from high intake volumes than would less sensitive waters. 
Relying heavily on a flow-based requirement would ignore this 
potentially ecologically harmful effect.
    Many commenters also disagreed with the notion that flow-induced 
entrainment automatically equates to adverse impact. Commenters argued 
that any intake flow would likely result in some entrainment loss but 
that this does not substantially harm the biological community of the 
source water. To support this, commenters provided examples that 
demonstrate healthy sport and commercial fishing populations in close 
proximity to large power plants. Citing these examples, commenters 
argued that EPA's proposed best technology available requirements based 
on entrainment and impingement are overly restrictive and cost 
prohibitive. Instead, commenters proposed basing the 316(b) 
requirements more on the overall health and viability of the 
surrounding aquatic environment than on rates of entrainment and 
impingement.
    On the other hand, some commenters supported EPA's assertion that 
volume and impact are directly proportional. One commenter provided 
statistical evidence from several cooling system studies that 
demonstrated higher rates of entrainment and impingement when intake 
volumes were increased.
    Several commenters questioned EPA's emphasis on reducing intake 
flow to minimize impact while ignoring other influential factors, such 
as life history strategy, distribution throughout the water column, and 
adaptations to external stresses, among others, that can result in high 
entrainment and impingement mortality rates. The commenters argued that 
such factors can often be mitigated by structural design or location 
modifications without incurring the expense associated with a reduction 
in the overall volume of water withdrawn. Similarly, other commenters 
noted that EPA failed to address technologies and design modifications 
that could achieve the desired effect--reduction in entrainment and 
impingement losses--while still maintaining a high rate of withdrawal.
    EPA believes the record contains ample evidence to support the 
proposition that reducing flow and capacity reduces impingement and 
entrainment, one measure of adverse environmental impact, and may 
reduce stress on higher levels of ecological structure including 
population and communities. (See DCN #2-029 in the record for this rule 
(compilation of swim speed data), which demonstrates the potential 
vulnerability of many fish species to impingement. The documents DCN 
#2-013L-R15 and 2-013J support the proposition that flow is related to 
entrainment.) The widespread use of capacity-reduction technology at 
almost all proposed new electric generating facilities and by a 
substantial number of new manufacturers makes capacity reduction an 
appropriate component of best technology available for minimizing 
adverse environmental impact at new facilities. EPA disagrees with 
commenters that other factors influential to impingement and 
entrainment have been ignored. Both Track I and Track II of the final 
rule allow for site-specific evaluations in determining the appropriate 
technologies to be implemented. For example, the Design and 
Construction Technology Proposal Plan required in Track I and the 
Evaluation of Potential

[[Page 65301]]

Cooling Water Intake Structure Effects in Track II allow for site 
specific consideration of factors other than flow to minimize impacts 
from impingement and entrainment. Cumulative impacts are addressed on a 
case-by-case basis by each permitting authority.
2. Basis for Flow Proportional Limits
    Numerous commenters rejected the justification for the flow 
requirement proposed by EPA as being too vague and untenable. 
Specifically, commenters questioned the proposed goal of a ``99 percent 
level of protection'' for aquatic communities and how it relates to 
levels of protectiveness in other water quality-based programs. Many 
commenters believed both ``99 percent'' and ``level of protection'' 
were vague and called on EPA to provide more explicit definitions in 
the final rule. Other commenters questioned the gain in overall aquatic 
health that can be achieved by setting the requirement at such a high 
level. Several commenters cited other federal programs and 
publications, such as the Water Quality Standards Handbook, in support 
of their claim that EPA has no precedent on which to base its proposed 
requirement. Other programs have demonstrated that a lower target 
protection level is still adequately protective of the viability of the 
total aquatic environment. Commenters noted that a high standard would 
increase compliance costs significantly while producing no measurable 
improvement in the overall health of the source waterbody and called on 
EPA to better justify its support of the proposed requirement.
    While EPA believes this final rule will significantly increase 
protection for aquatic communities, the Agency has determined that the 
proportional flow requirements represent limitations on capacity and 
location that are technically available and economically practicable 
for the industry as a whole. EPA examined the performance of existing 
facilities based on data from the section 316(b) industry survey in 
terms of proportional flow to determine what additional value could be 
used as a safeguard to protect against impingement and entrainment, 
especially in smaller waterbodies, where multiple intakes are located 
on the same waterbody, or in waterbodies where the intake is 
disproportionately large as compared to the source water body. As 
discussed in Section V.B.1.c. above, EPA found most existing facilities 
meet these requirements. EPA expects that new facilities would have 
even more potential to plan ahead and select locations that meet these 
requirements. EPA recognizes that some measure of judgment was involved 
in establishing the specific numeric limits in these requirements and 
that these requirements are conservative in order to account for 
multiple intakes affecting a waterbody. In particular, the 1 percent 
value for estuaries reflects that the area under influence of the 
intake will move back and forth near the intake and withdrawing 1 
percent of the volume of water surrounding the intake twice a day over 
time would diminish the aquatic life surrounding the intake. The 5 
percent value mean annual flow reflects an estimate that this would 
entrain approximately 5 percent of the river or stream's organisms and 
a policy judgment that such a degree of entrainment reflects an 
inappropriately located facility. Nevertheless, because they address 
important operation situations and appear to be highly achievable for 
new facilities, EPA believes they are appropriate to this rule.
    These requirements are expected to have little or no impact on the 
location of cooling water intake structures projected to be built over 
the next 20 years as new facilities have the opportunity to choose 
sites that meet their specific design and cooling water needs before 
construction begins.

E. Velocity

1. Design Through-Screen Velocity as a Standard Measure
    Under the proposed rule, any intake located in a freshwater or 
tidal river, stream, estuary, or ocean or within or near the littoral 
zone of a lake or reservoir would have to meet a maximum intake 
velocity requirement: a design through-screen intake velocity of 0.5 
feet per second (ft/s).
    EPA requested comment on the appropriateness of design through-
screen velocity as a standard measure with 0.5 ft/s as the intake 
velocity, and the utility and appropriateness of a nationally based 
velocity requirement for the 316(b) regulations. Comments addressed 
these topics, as well as a range of other issues: problems with 
biofouling, issues better addressed through a site-specific approach, 
applicability to offshore oil and gas facilities, and applicability to 
existing facilities.
    Generally, industry commenters thought the 0.5 ft/s requirement to 
be overprotective and not supported by the scientific literature. On 
the other hand, states and public interest groups commenters agreed 
with this requirement. Commenters also gave examples of several 
situations in which the velocity requirement would be inappropriate. 
Comments on the NODA generally reiterated issues raised in the comments 
on the proposed rule.
    Numerous commenters questioned the proposed intake velocity 
requirement on several grounds. Many of the comments suggested that the 
proposed requirement is based on limited scientific data and 
undocumented or unsupported government policies. Commenters generally 
cited the age of the data used to support the requirement, the small 
number of scientific studies upon which the requirement is based, and 
the unclear origins of existing government policies that advocate using 
the 0.5 ft/s requirement. Other commenters stated that the requirement 
is very conservative and still may not prevent adverse environmental 
impact. A number of commenters pointed to other factors that affect 
impingement and entrainment, such as light, turbidity, temperature, and 
fish behavior. Other commenters suggested alternative requirements, 
including 1.0 ft/s, an allowable range of velocity from 0.5   ft/s to 
1.0 ft/s, a species-specific velocity requirement dependent on the 
species composition of nearby waters, and a case-by-case velocity 
limit. Several other commenters further noted that a number of existing 
facilities with intake velocities exceeding 0.5 ft/s have been 
determined to be in compliance with 316(b) or to have minimal impacts 
to fish populations. Other commenters questioned the record support for 
determining the safety factor used in deriving the proposed velocity 
requirement. Some commenters supported the velocity requirement, with 
one commenter noting that it is well-established as a protective 
requirement and is consistent with the levels of protection required 
under other existing regulations.
    Several commenters expressed concern over the use of design 
through-screen velocity as the proposed requirement. Some pointed out 
that approach velocity has been the accepted standard for measuring 
velocity and questioned the lack of justification for proposing a 
different methodology. One commenter noted that a specific measure of 
velocity may be better suited for the design of a particular intake 
(e.g., through-screen velocity for a wedgewire screen and sweeping 
velocity for an angled screen). Another commenter opposed the use of 
design through-screen velocity, arguing that it is difficult to measure 
and does not represent the velocity that fish must detect in order to 
avoid impingement. Others noted that a through-screen velocity of 0.5 
ft/s would, by definition,

[[Page 65302]]

require an approach velocity of less than 0.5 ft/s. A commenter also 
questioned the appropriateness of using through-screen velocity, 
because intake screens can easily become clogged or fouled, having a 
dramatic effect on velocity and water flows at and through the screen. 
Other commenters supported the use of design through-screen velocity, 
noting that it has long been the industry and regulatory standard for 
measuring intake velocity. Several commenters suggested methods for 
measuring approach velocity.
    Finally, several commenters drew comparisons with existing velocity 
requirements used by NMFS Northwest Region. Some of these comments 
requested that the proposed requirement be fully consistent with the 
existing NMFS requirements. Others noted that the proposed requirements 
are actually more stringent than the NMFS requirements when compared 
using a flow vector analysis, contrary to the Agency's statement that 
the proposed requirements were less stringent than NMFS requirements.
    Given the compilation of supporting data presented in the proposed 
rule and the NODA, Track I of today's final rule maintains the proposed 
intake velocity requirement of 0.5 ft/s through-screen velocity. The 
0.5 ft/s through-screen requirement is well supported by existing 
literature on fish swim speeds and will also serve as an appropriately 
protective measure. EPA believes a requirement that protects almost all 
fish and life stages is particularly appropriate to provide a margin of 
safety when, as is common, screens become occluded by debris during the 
operation of a facility and velocity increases through the portions of 
a screen that remain open. EPA notes that more than 70 percent of the 
manufacturing facilities and 60 percent of the electricity generating 
facilities built in the past 15 years have met this requirement and 
believes the requirement is an appropriate component of best technology 
available for minimizing adverse environmental impact at new 
facilities.
    As documented by the data collected for the NODA, EPA believes the 
0.5   ft/s requirement is scientifically based, technically sound, 
protective of aquatic resources, and technically available and 
economically practicable as demonstrated by the fact that it is 
frequently achieved at recently built facilities. As discussed below, 
the requirement is well supported by existing literature on fish swim 
speeds and will also serve as an appropriate protective measure, since 
the data suggest that a 0.5 ft/s intake velocity would protect 96 
percent of the tested fish. EPA notes that if the permit applicant does 
not want to meet the specific Track I velocity requirement, the 
applicant can, under Track II, conduct site-specific studies and seek 
to demonstrate comparable reduction of impingement mortality and 
entrainment. This may allow facilities to install cooling water intake 
structures with greater that 0.5 ft/s velocities if they can 
demonstrate that they would have the same reduction of impingement and 
entrainment as Track I standards which include the 0.5 ft/s limitation 
on velocity. Additionally, past permitting decisions were made using 
the best judgment at the time of the decision. These permitting 
decisions should not be interpreted to signify best technology 
available in future decisions.
    The NODA presented further data on fish swim speeds. The velocity 
of water entering a cooling water intake structure exerts a direct 
physical force against which fish and other organisms must act to avoid 
impingement and entrainment. An analysis of swim speed data 
demonstrates that many fish species are potentially unable to escape 
the intake flow and avoiding being impinged. EPA received or collected 
data from EPRI (see W-00-03 316(b) Comments 2.11), from a University of 
Washington study that supports the current National Marine Fisheries 
Service velocity requirement 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 DCN #2-
028B in the record for this rule). These data were compiled into a 
graph (Swim Speed Data, DCN #2-029 in the record of this rule). The 
data suggest that a 0.5 ft/s velocity would protect 96 percent of the 
tested fish.
    In developing the intake velocity requirement, EPA assumed a flat 
screen with the intake flow directly perpendicular to the face of the 
screen, because this is a typical arrangement for a cooling water 
intake structure. However, angled screens, such as those described in 
the NMFS requirements, are used in some intake designs, and EPA does 
not wish to discourage any intake designs. Under Sec. 125.84(e), the 
Director may require additional controls (such as the NMFS 
requirements) to complement the protection afforded by the velocity 
requirement. EPA also developed the velocity requirement with a highly 
protective intake velocity in mind, regardless of the intake 
configuration. As a result, EPA's requirements may be more stringent 
than existing requirements required by NMFS or other agencies.
    EPA recognizes that approach velocity has been a measurement 
technique for intake velocity in the past. However, many recently 
constructed facilities have been designed to meet through-screen intake 
velocity limitations. Additionally, EPA notes that design through-
screen velocity will be simpler to measure and therefore be easier to 
implement on a national level for both regulators and facilities than 
approach velocity. New facilities can be designed with consideration 
given to the through-screen velocity requirement, and designs can be 
altered accordingly. Intake velocity will also be simpler to measure, 
as facility engineers can simply calculate the intake velocity on the 
basis of intake flow and the intake screen area, as opposed to the more 
complex data gathering process involved in measuring approach 
velocities near an intake screen. EPA also recognizes that the approach 
velocity will be less than 0.5 ft/s. The intake velocity requirement is 
intended to be a highly protective requirement. Regardless of the 
intake structure design or the presence of sufficient detection or 
avoidance cues, the intake velocity is low enough to protect of a 
majority of fish species. For these reasons, the final rule maintains 
the requirement to measure intake velocity on a design through-screen 
basis.
2. Appropriateness of a National Velocity Requirement
    Numerous comments were received regarding the appropriateness of a 
national-scale requirement for intake velocity. Many commenters 
expressed concern that a national requirement would be an unnecessary 
burden on facilities. Specifically, some commenters noted that a site-
specific framework for the 316(b) rule and velocity requirement would 
be preferable, as it would best account for site-specific details, some 
of which may affect the rates of impingement and entrainment. Other 
commenters questioned using a national requirement; given the 
variability in environmental conditions and fish swim speeds, these 
commenters said making a national approach is inappropriate to suitably 
cover the range of organisms found in a given water body. Some 
commenters noted that the velocity requirement might preclude the 
future use or implementation of some highly effective technologies. One 
commenter noted that several studies have suggested little or no 
correlation between flow and impingement or entrainment; the commenter 
argued that, therefore, a relationship between

[[Page 65303]]

impingement or entrainment and intake velocity does not exist.
    As documented by the data collected for the NODA, the 0.5 ft/s 
requirement is scientifically based, is protective of aquatic resources 
with a reasonable margin of safety, and is met by many recently built 
facilities. EPA believes it is an appropriate component of best 
technology available for minimizing adverse environmental impact at new 
facilities. Permit applicants who wish to build a facility using higher 
intake velocities have the option, under Track II, to conduct site-
specific studies and seek to demonstrate that their alternative will 
reduce impingement mortality and entrainment to a level of reduction 
comparable to the level the facility would achieved if it met the Track 
I requirements, including the velocity limit of 0.5 ft/s.
    While EPA acknowledges that multiple factors may affect impingement 
and entrainment at a given intake, EPA believes that there is ample 
evidence contained in the record to support a correlation between 
velocity and/or flow and impingement and entrainment. As stated in the 
preamble to the rule, intake velocity is one of the key factors 
affecting the impingement of fish and other aquatic biota. The velocity 
of water entering a cooling water intake structure exerts a direct 
physical force against which fish and other organisms must act to avoid 
impingement and entrainment. The compilation of swim speed data (DCN 
#2-029 in the record of the rule) demonstrates that many fish species 
are potentially unable to escape the intake flow and avoid being 
impinged. The record also supports the proposition that flow is related 
to entrainment.\89\
---------------------------------------------------------------------------

    \89\ The documents DCN# 2-013L-R15 (Goodyear. 1997. Mathematical 
Methods to Evaluate Entrainment of Aquatic Organisms by Power 
Plants) and DCN# 2-013J (EPRI. 1999. Catalog of Assessment Methods 
for Evaluating the Effects of Power Plant Operations on Aquatic 
Organisms.) in the record of the rule both support this premise.
---------------------------------------------------------------------------

    Finally, EPA chose a national requirement in order to provide a 
consistent standard for facilitating implementation given the technical 
availability and economic practicability of the requirement.
3. Other Comments Concerning the Velocity Proposal
a. Biofouling at Intakes
    Several commenters submitted that an intake velocity of 0.5 ft/s 
may lead to increased difficulties with biofouling at facility intakes, 
especially at offshore oil and gas extraction facilities. Another 
commenter noted that with an increase in biofouling facilities would 
need to increase treatment efforts. Frequently, these efforts involve 
adding chemical treatments to water flows and may have subsequent 
adverse impacts on water quality. Another management strategy noted by 
a commenter is to maintain sufficiently high intake velocities to 
preclude colonization by fouling organisms. One commenter also 
expressed concern over the implications of biofouling at fine mesh 
screens and the potential for these protective technologies to become 
quickly fouled. One commenter supported the velocity requirement, 
noting that commercially available alloys have been shown to be highly 
effective in repelling biofouling organisms.
    EPA recognizes that maintaining sufficiently high intake velocities 
is one possible solution for minimizing settlement by biofouling 
organisms. However, further research by the Agency suggests that this 
is not the most effective technique. Often, intake velocities are 
designed to be as low as possible to reduce the impingement and 
entrainment of aquatic organisms. Additionally, the intake systems of 
many facilities are unprepared to support such high intake velocities 
and would possibly require modifications in order to maintain such 
velocities. An analysis of facility survey data at existing facilities 
suggested that only 33 (3.4 percent) of 978 surveyed facilities have 
intake velocities of sufficient magnitude (greater than 5 ft/s) to 
inhibit biofouling. Fortunately, a variety of viable alternative 
technologies and management strategies for dealing with biofouling are 
available. Examples of these options include the use of construction 
materials that inhibit attachment of organisms, mechancial cleaning, 
and chemical and/or heat treatments. While no one strategy has been 
shown to be universally applicable, there are certainly affordable and 
implementable options. Maintaining a high intake velocity has not been 
shown to be the most effective way to control biofouling, since other 
methods have been shown to be more effective at a lower cost, 
especially in the context of new facilities. A facility that has yet to 
be constructed can integrate biofouling control technologies into its 
design and minimize the impacts of biofouling on normal operations.
b. Concerns Better Addressed by a Site-Specific Approach
    Several commenters raised other concerns about the proposed 
velocity requirement, pointing to a variety of issues that they argue 
could be more easily addressed on a site-specific level. Some 
commenters noted that intakes located on large or fast-moving 
waterbodies may have difficulty maintaining the proposed intake 
velocity. For example, an intake located in a river moving at 3.0 ft/s 
may be unable to maintain a constant 0.5 ft/s intake velocity because 
of the ambient flow. As for the biota near the intake, the commenters 
submitted that these organisms have adapted to a higher-velocity 
environment and do not necessarily require protection under a velocity 
requirement. Other commenters noted that the direction of flow near an 
intake can have a substantial effect on the intake velocity and 
detection by fish. For example, the intake velocity at an intake 
subject to tidal movements or a longshore current may be affected. 
Another commenter expressed concern that the intake velocity is 
meaningful only if measured where the screen is the first component of 
the cooling water intake structure encountered by an organism, such as 
with a wedgewire screen. Intake canals, trash racks, and other cooling 
water intake structure components pose a threat by potentially 
entrapping fish that are unable to locate an escape route. One 
commenter noted that experimental technologies, such as strobe lights, 
sound, or intake velocities greater than 0.5 ft/s (up to 10 ft/s for 
some technologies) may not be developed because of the restrictions on 
intakes. One commenter observed that a reduction in intake velocity may 
also reduce the amount of cooling water taken in by a facility. The 
commenter observed that reducing the cooling capacity of the cooling 
system may adversely affect facility safety and efficiency.
    For faster-moving waterbodies and in other situations where a 
permit applicant may wish to use a higher intake velocity, facilities 
may opt to follow Track II and seek to demonstrate that reductions in 
impingement mortality and entrainment would be comparable to the level 
achieved with the Track I requirements. Given the data EPA has seen on 
the protective nature of the 0.5 ft/s requirement (see DCN #2-028 in 
the Docket for the rule), EPA does not foresee a significant issue 
regarding entrapping fish and will continue in Track I to specify 
design through-screen velocity as the measure for determining 
compliance with the velocity requirement. EPA also notes that 
facilities wishing to employ developmental technologies may follow 
Track II and demonstrate a comparable level of protection.
    For new facilities, EPA does not anticipate that cooling system 
safety for nuclear-fueled facilities will be an issue

[[Page 65304]]

because any requirements can be addressed through facility design. New 
facilities have the opportunity to address and mitigate safety and 
efficiency issues during the design of the facilities. The fact that 79 
percent of power generating plants and 46 percent of manufacturing 
facilities built within the last five years meet the Track I velocity 
requirement demonstrates that facilities designed in accordance with 
this requirement can incorporate any necessary features to ensure 
proper functioning of the cooling system.

F. Dry Cooling

    In the proposed rule EPA requested comment on regulatory 
alternatives based wholly or in part on a zero-intake flow (or nearly 
zero, extremely low-flow) requirement commensurate with levels 
achievable through the use of dry cooling systems. See, 65 FR 49080-
49081. EPA rejected dry cooling as best technology for minimizing 
adverse environmental impact for the reasons discussed in Section V.C 
above.
    Some commenters, citing several examples, responded that dry 
cooling systems must be the best technology available for minimizing 
adverse environmental impact because they reduce intake volume and the 
killing of aquatic organisms to extremely low levels. These comments 
claim that dry cooling is an available and demonstrated technology. 
They focus on several demonstrated cases of dry cooling and discuss its 
use for a range of fuel sources, ownership categories, climates, and 
electric generating capacity. The comments claim that dry cooling 
technology in the United States has been growing rapidly since the 
early 1980s and represents approximately 27 percent of new capacity 
since 1985. Additionally, commenters in favor of the dry cooling 
alternative state, on the basis of recent construction trends, that the 
best technology available for the New England region is dry cooling 
systems. The commenters provide examples of 15 steam electric stations 
currently operating, under construction, or recently approved for 
construction using dry cooling in New England. These projects range in 
capacity from 24 MW to 1500 MW, with an average capacity of 480 MW and 
a total capacity of 7200 MW. Commenters supporting the dry cooling 
alternative claim that the technology frees the industry user groups 
from unnecessarily restrictive requirements to site facilities adjacent 
to or short distances from waterbodies or other sources of cooling 
water and eliminates discharges (of both thermal pollution and water 
conditioning chemicals) to these waterbodies. This freedom from water 
dependency, the comments assert, allows new power plants to locate in 
close proximity to the end users of electricity, thereby decreasing 
energy loss due to transmission, and to use alternative sources of 
water such as treated wastewater effluents, municipal supplies, and 
groundwater. EPA rejected dry cooling for the reasons discussed at V.C 
above.
    Some commenters asserted that dry cooling systems are not necessary 
for minimizing adverse environmental impact nor do they qualify as the 
best technology available. They assert that dry systems are not 
considered to be a viable, cost-effective design choice unless there 
are unique circumstances and conditions associated with either the site 
or the market climate for the project. The comments recommend that 
adoption of dry cooling systems be left to the permittee's judgment and 
not be a uniform requirement. The physical space requirements, the 
commenters assert, severely limit the siting options available to new 
facilities. They oppose the imposition of dry cooling in southern 
climates, where, they claim, there is an abundance of high volume 
surface water available for cooling. Additionally, the commenters claim 
that dry cooling has not been shown necessary for minimizing adverse 
environmental impact. They also contest claims made by other commenters 
on the proposal that dry cooling has been demonstrated for a variety of 
climates and generating capacities. These commenters counter claims 
made by other commenters on the proposal that dry cooling is a 
demonstrated technology for large-size power plants. EPA has rejected 
dry cooling as best technology available for the reasons discussed at 
V.C above.
    Other commenters discuss dry cooling technologies at manufacturing 
facilities. The commenters challenge the viability of dry cooling 
systems in manufacturing facilities that cool process fluids to ambient 
levels (e.g., below 100 degrees F) or do not condense steam. They claim 
that the dual use of process and cooling water prevents the application 
of dry cooling. EPA agrees that dry cooling technologies for 
manufacturing cooling waters pose engineering feasibility problems. EPA 
rejects dry cooling as a basis for a national requirement for new 
manufacturing facilities (as discussed in Section V.C above) but points 
to several demonstrated cases of dry cooling for cogeneration plants at 
or adjacent to manufacturing facilities as encouragement for 
cogenerating plants to consider the technology on a site-specific 
basis.
    The cost of dry cooling systems is discussed in a variety of 
comments. Generally, all commenters discuss elevated capital and 
operating and maintenance (O&M) costs in comparison with similar 
capacity recirculating wet cooling towers. An analysis of modeled new 
combined-cycle plants in five regions of the United States was 
submitted with one comment. This analysis estimated that capital and 
total O&M costs for dry cooling systems exceed those for wet cooling 
systems by greater than 75 percent, regionally and nationally. Other 
commenters generically assert that the capital and operating costs of 
the technology significantly exceed those of recirculating wet cooling 
towers of comparable capacity. Even commenters in favor of dry cooling 
as the best technology available acknowledge that the cost of a dry 
cooling system can be as much as three times that of a comparable wet 
cooling system. However, these commenters also contest that the cost of 
the technology is clearly not wholly disproportionate to the 
environmental benefit gained. These commenters in favor of dry cooling 
as the best technology available claim that the capital cost and O&M 
costs of air-cooled structures at combined-cycle electric generating 
plants represent a small fraction, only 2 to 3 percent (using EPA's 
proposal cost estimates), of the estimated annual revenues for those 
facilities. These commenters state that because newer combined-cycle 
plants need cooling only for the steam portion of their cycle (only 
about one-third of their total capacity), they can be cooled with a 
much smaller dry cooling system than a comparably sized, steam-only 
generating plant. Thus, these commenters claim, the increased cost for 
dry cooling is considerably smaller than it would have otherwise been 
for conventional all-steam plants. These commenters add that they 
believe the costs of installing dry cooling as the best technology 
available at a fraction of a cent per kilowatt hour, would not be felt 
or even noticed by consumers. EPA discusses the costs of dry cooling 
extensively in Chapter 4 of the Technical Development Document. EPA 
agrees with commenters that elevated costs of the technology as 
compared with other cooling technologies pose a significant 
implementation problem for new facilities. Specifically, as discussed 
in Section V.C above, the compliance costs of dry cooling based 
requirements would result in annualized compliance cost of greater than 
4 percent of revenues for all 83 electricity generators,

[[Page 65305]]

and of greater than 10% of revenue for 12 of the 83 generators.
    The performance of dry cooling systems is addressed in many 
comments. Some comments point to lower performance than wet cooling 
systems and greater sensitivity to climatic conditions as being crucial 
for evaluating the efficacy of the technology. These comments claim 
that depending on climatic conditions, certain locations in the country 
will have a higher probability of incurring energy penalties. These 
commenters cite performance drawbacks to dry cooling systems due to 
operation at elevated turbine backpressures or reductions in energy 
production in locations with high daily or seasonal dry-bulb 
temperatures. One commenter provided results from a modeling exercise 
simulating energy inefficiency impacts at dry cooling facilities in a 
variety of climatic conditions. The results from the commenter's 
analysis showed summer peak performance shortfalls (i.e., peak energy 
penalties) of greater than 30 percent for dry cooling facilities. 
Additionally, the commenters estimate that the energy penalty would 
vary considerably throughout the United States because of climactic 
conditions. Conversely, some commenters claim that the energy penalty 
from some dry cooling facilities in some areas is equivalent to that 
calculated by New York State officials for the Athens Generating 
Company facility, where they estimated a 1.4 to 1.9 percent reduction 
in overall plant electrical generating capacity as a consequence of 
using a dry cooling system versus a hybrid wet'dry system. \90\ The 
commenters add that, in their view, energy conservation measures can 
more than offset any potential minor loss of efficiency from dry 
cooling. The commenters claim that the building of modern generating 
facilities provides significant efficiency gains that dwarf any 
potential loss due to the cooling system design. These commenters claim 
that transmission losses exceed the energy penalty associated with the 
dry cooling system; further, they assert that because dry cooling makes 
it possible to locate away from major bodies of water and closer to 
energy users, a facility can be more than compensated for the energy 
penalty. Finally, the commenters state that a 1 to 2 percent loss for 
the sake of greater protection of water resources is comparable to 
other efficiency penalties EPA requires of the electric industry for 
reductions in NOX and SO2 emissions. The 
performance penalties of dry cooling systems play a significant role in 
EPA's decision to reject dry cooling as the best technology available. 
See Section V.C above for further discussion.
---------------------------------------------------------------------------

    \90\ State of New York, Department of Environmental 
conservation. 1999. Initial post hearing brief, Athens Generating 
Company, L.P. Case no. 97-F-1563.
---------------------------------------------------------------------------

    Hybrid wet and dry cooling systems are addressed in several 
comments. One commenter contends that the viability of hybrid systems 
for large-scale cooling operations (e.g., at a power plant with 
capacity greater than 500 MW) is uncertain. The commenter identifies 
site-specific performance advantages of hybrid systems over dry 
cooling, noting that the most common type of hybrid system is designed 
to eliminate visible plumes from wet cooling towers. These comments 
additionally claim that hybrid plume abatement systems are not water-
conserving systems and that their costs are greater than wet cooling 
tower systems. EPA considers hybrid cooling systems not to be 
adequately demonstrated for power plants of the size projected to be 
within the scope of the rule. As such, EPA has not adopted the 
technology as a component of the best technology available requirements 
of today's rule. However, EPA recognizes that there is distinct 
potential for the use of hybrid cooling systems, especially in cases 
where plume abatement is concerned.
    Some commenters claim that air emissions from electricity 
generation would increase because of energy penalties from dry cooling 
systems. These commenters state that an energy penalty creates a need 
for replacement power, which must be met by even more new generating 
capacity resulting in an increased potential for environmental impacts 
(such as increased air emissions). The comments add further that 
estimating those emissions would project the costs of power production 
and the mix of generating capacities (e.g., coal-fired, nuclear) 
available at the time of anticipated demand. Other commenters take the 
view that increased air emissions due to dry cooling systems are not a 
concern. EPA is concerned about the degree to which dry cooling-based 
requirements would increase air emissions associated with electricity 
generation. In the cases where performance penalties are high (i.e., in 
hot climates or during hot climatic periods), the increases in air 
emissions due to the potential adoption of dry cooling-based 
requirements are of concern to the Agency. This issue is further 
discussed in Section V.C in the context of EPA's rejection of dry 
cooling.
    For the final rule EPA concludes that dry cooling systems are not 
the best technology available for minimizing environmental impact. EPA 
recognizes that dry cooling systems can achieve significant reductions 
in the impingement and entrainment of aquatic organisms compared with 
other cooling systems, especially once-through systems. Additionally, 
EPA acknowledges that the technology has been demonstrated as a viable 
cooling alternative for certain power plant applications under certain 
circumstances. EPA notes, however, that few of the plants constructed 
with the technology have been built with cooling systems of a size 
comparable to what would be required at several of the planned coal-
fired systems EPA projects within the scope of the rule. The dry 
cooling technology presents flexibility to power plants, especially 
those of small size, those locating in arid regions, and those with 
water scarcity issues, or those wishing to avoid NPDES permitting 
issues. However, the technology presents several clear disadvantages 
that prohibit its adoption as a minimum national requirement or as a 
minimum requirement for subcategories of facilities. Although EPA 
recognizes that the technology--by using extremely low-level or no 
cooling water intake--reduces impingement and entrainment of organisms 
to dramatically low levels, EPA interprets the use of the word 
``minimize'' in CWA section 316(b) to give EPA discretion to consider 
technologies that reduce but do not completely eliminate impingement 
and entrainment as meeting the requirements of section 316(b) the CWA.
    A minimum national requirement based on dry cooling systems would 
result in annualized compliance cost of greater than 4 percent of 
revenues for all 83 electricity generators, and of greater than 10% of 
revenue for 12 of the 83 generators. Because the technology can cause 
inefficiencies in operation during peak summer periods and in hot 
climates, adoption as a minimum national requirement would also impose 
unfair competitive disadvantage for facilities locating in hot 
climates, more so than a traditional recirculating wet cooling tower or 
once-through cooling system. For the subcategory of facilities in cool 
climatic regions of the United States, adoption of a requirement based 
on dry cooling for these facilities would also impose unfair 
competitive restrictions. The competitive disadvantages relate 
primarily to the capital and operating costs of the dry cooling system. 
Additionally, adoption of requirements based on dry cooling for

[[Page 65306]]

a subcategory of facilities with a capacity under a particular level or 
by fuel type would pose similar competitive disadvantages for those 
facilities. EPA's record demonstrates that dry cooling systems 
generally cost as much as three times more to install and construct 
than a comparable wet cooling system. Dry cooling system O&M costs 
range from less than or comparable to those for wet systems to two or 
more times higher. In addition, dry systems generally impose an energy 
penalty as compared with wet cooling systems. EPA estimates the annual 
average energy penalty to be 3 percent over a recirculating wet cooling 
tower system.
    Further, EPA considers the degree of energy inefficiency associated 
with dry cooling to be counter to the performance of the best 
technology available candidate technology. EPA's record shows an annual 
average energy penalty for dry cooling of approximately 3 percent 
relative to recirculating wet cooling towers. This energy penalty 
represents the typical performance of a dry cooling system in northern 
climates, extended to the rest of the national climates. However, the 
peak summer performance is expected to decrease significantly in 
certain hot climates. EPA estimates that, for a newly constructed and 
designed facility, the peak summer shortfall could exceed the annual 
penalty by an additional 3 percent. This value could increase 
significantly as the facility ages; it hinges on regular and thorough 
maintenance.
    EPA concludes that the air emissions increases from power plants 
due to adoption of a requirement based on dry cooling would be counter 
to the performance of a best technology available candidate technology. 
Changes in energy consumption associated with dry cooling would result 
in changed fuel consumption and therefore could result in greater air 
emissions from power plants using dry cooling than would occur if the 
plants used wet cooling. EPA estimates that the average annual air 
emissions for the power plants in scope of the final rule with a dry 
cooling alternative for CO, NOX, SO2, and Hg 
emissions would be greater than if the plants used wet cooling. See 
Section VI.B.2.e. See Chapter 3 in the Technical Development Document 
for more information on EPA's air emissions analysis.

G. Implementation-Baseline Biological Characterization

    In the proposed regulations, the Agency proposed that all 
facilities perform a source water baseline biological characterization 
to establish an initial baseline for evaluating potential impact from 
the cooling water intake structure before the start of operation. The 
study required that information be collected over a 1-year period. This 
information was needed to determine the kinds, numbers, life stages, 
and duration of aquatic organisms in the vicinity of the cooling water 
intake structure. The Director would use the findings of the study to 
evaluate the efficacy of the location, flow, and velocity requirements 
and to define the need for design and construction technologies. The 
regulations would have also required facilities to conduct impingement 
monitoring over a 24-hour period once per month and 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 would be allowed to reduce the frequency of 
impingement and entrainment monitoring. EPA's July 2000 information 
collection request estimated costs for the Source Water Baseline 
Biological Characterization at an average of $32,000. Monitoring was 
estimated at approximately $38,000 annually for entrainment and $13,000 
annually for impingement. The NODA provided updated costs for both the 
source water baseline characterization and post operational monitoring.
1. Need for the Source Water Baseline Biological Characterization
    Numerous commenters from both the States and the industry agreed 
that the source water baseline biological characterization was 
reasonable to determine the condition of the aquatic system. Other 
commenters questioned the need for a 1-year study that would provide 
information of limited utility because of the variation that natural 
populations exhibit from year to year. Some commenters were concerned 
that the baseline year may not be representative of the average 
characteristics of the organisms and that comparing subsequent 
monitoring with the baseline may provide erroneous conclusions.
    Some commenters expressed their concern that the requirement to 
perform the baseline biological characterization would delay issuance 
of an NPDES permit and that the time required to develop the study in 
cooperation with and with approval from the permitting authority would 
increase the development time by 3 to 6 months. They estimated that the 
time to perform the study would be approximately 18 to 21 months. In 
particular, the electric utility industry stated that the additional 
time may result in construction delays that would threaten the 
availability or price structure of electricity in certain areas.
    In addition, some commenters stated that there may be no need for a 
study if highly protective technology such as closed-cycle cooling is 
proposed to be used by the permittee, especially if the facility is 
located on a large waterbody.
    Some commenters suggested that the studies be required only if 
alternative requirements were requested and not if the strict 
technology-based requirements are adopted. One commenter questioned the 
need for reevaluating the baseline biological characterization for the 
next permit term.
    In response to these comments, EPA has modified the baseline 
biological characterization requirements in the rule to allow for the 
use of existing data, both for the initial permit issuance and 
reissuance. In today's final rule, Track I specifies highly protective 
technology-based performance requirements and does not require a permit 
applicant to conduct monitoring prior to submitting an application. The 
applicant must gather existing information on the site and select 
design and construction technologies that will minimize impingement and 
entrainment and maximize impingement survival. Under Track II, the 
applicant must conduct a considerably more rigorous study if he or she 
seeks to demonstrate that alternatives to the Track I requirements will 
reduce the level of impingement mortality and entrainment to a level of 
reduction comparable to the level the facility would achieve if it met 
the Track I requirements at a site.
2. Cost of Source Water Baseline Biological Characterization
    Numerous commenters stated not only that the proposed sample 
collection was time consuming but also that the analysis and 
identification of the samples of aquatic insects and ichthyoplankton 
were extremely labor intensive. Some commenters suggested that the 
studies be required only if alternative requirements were requested and 
not if the strict technology-based requirements were adopted.
    Numerous commenters stated that existing qualitative information is 
already available on aquatic species at many sites located on major 
waterbodies. At these sites, little additional information would be 
provided by an additional year of sampling in the vicinity of a 
proposed cooling water intake structure. These commenters would like 
the Agency to prepare additional guidance as to when

[[Page 65307]]

existing information would be appropriate. Another commenter questioned 
the acceptability of existing information that is more than 5 years 
old, because of changes in water quality, species composition, and 
other variables.
    One commenter stated that the study should be tailored to the needs 
of the site. The commenter stated that some static or controlled 
environments might require a less rigorous study, while more complex 
and changing environments might require a more rigorous study to fully 
characterize the site. Other commenters stated that the requirements in 
the regulation were ambiguous.
    Commenters were concerned that the costs estimated for the proposed 
rule, at an average of $32,000, were unrealistically low and that a 
more reasonable estimate might be $100,000. Some commenters stated that 
the estimate for a proper characterization study would be 10 times the 
original estimate. One commenter stated that the $32,000 may be low 
even for a paper study, stating that a simple study with the barest 
scope of work would cost in excess of $50,000 while impingement and 
entrainment monitoring would cost approximately $100,000-$150,000 per 
year.
    Some commenters stated that the costs EPA estimated were too low in 
light of the accuracy that would be needed to determine whether 
significant adverse environmental impact exists and whether further 
mitigative measures or technologies must be used and that the 
characterization will also serve as the benchmark against which future 
performance is measured. One commenter stated that the accuracy needed 
would require stratified sampling.
    Some commenters stated that the costs presented in the NODA for 
post-operational monitoring were still too low. They stated that at a 
minimum multi-species assessments for decisionmaking would cost 
approximately $50,000.
    EPA believes that the post-operational monitoring cost is accurate. 
This cost was developed to reflect the extent of the monitoring 
required, which is noticeably less than previous 316(b) monitoring 
requirements. It is likely that the commenter is referring to these 
previous monitoring requirements when making comments as to the cost of 
these efforts. For example, previous studies may have required 
extensive impingement and entrainment monitoring and detailed taxonomic 
studies. The post operational monitoring required by this rule is 
expected to be less burdensome, requiring only monthly surveys for 
impingement and entrainment and possibly species identification. This 
level of effort is considerably less than the monitoring conducted 
under previous section 316(b) studies and is therefore less costly.
3. Impingement and Entrainment Monitoring
    Some commenters requested that impingement and entrainment 
monitoring not be required if the strict technology-based requirements 
were adopted by a facility. They thought that installing the technology 
should be adequate to show compliance and to demonstrate that the 
objectives of section 316(b) had been met. Other commenters suggested 
that postoperational monitoring be implemented on a site-by-site basis 
where there is evidence that unanticipated potential impacts could 
occur or where habitat restoration has restored aquatic populations.
    EPA disagrees with commenters who advocate no impingement and 
entrainment monitoring during the permit for permittees who opt to meet 
the Track I requirements. The Track I requirements for design through-
screen velocity and for selecting and installing design and 
construction technologies that minimize impingement mortality and 
entrainment require the permittee to install and operate technologies 
that require periodic maintenance and operation in a prescribed manner. 
Periodic monitoring is appropriate. The permit director also must 
determine for each permit renewal whether additional design and 
construction technologies are necessary, and impingement and 
entrainment monitoring will provide information needed for this 
determination. See 125.89(a)(2).

H. Cost

1. Consideration of Facility Level Costs
    EPA received comments on the proposal regarding its facility level 
cost estimates for the proposed requirements and a number of the 
regulatory alternatives. The issues addressed by commenters covered a 
range of topics, which EPA summarizes below.
    Some commenters claim that EPA has not considered or addressed all 
environmental costs and impacts of the regulatory alternatives. The 
commenters state that EPA has not considered the operating efficiency 
losses of wet and dry cooling tower systems. They claim that both 
auxiliary power requirements and performance penalties may result in 
reductions in capacity and in the quantity of energy to end-users. The 
commenters state that replacing this power from other higher-cost 
sources will result in social costs for which EPA has not accounted. As 
a result of performance penalties, according to the commenters, the 
quantity of fuel required to generate the same quantity of energy 
increases. They add that recirculating cooling towers may result in the 
following additional environmental impacts, for which EPA has not 
accounted: visibility impacts from recirculating cooling towers, local 
climate change from wet cooling tower plumes, wildlife losses (e.g., 
birds colliding with towers), fish losses due to loss of heated aquatic 
plumes to over-wintering habitats, increased air emissions from sources 
replacing lost power, and increased impediments to waterway navigation 
due to icing in northern regions.
    EPA initially responded by providing information in the NODA 
regarding this subject and outlined its intent to account for some 
additional costs in the final rule (66 FR 28866 and 28867). The cost 
estimates for the final rule include consideration of performance 
penalties and other environmental issues highlighted by the commenters. 
The final rule accounts for the ``energy penalty'' for facilities that 
are projected to install recirculating wet cooling tower systems in 
lieu of once-through cooling systems. EPA estimated marginal 
performance penalties, the costs to replace the lost power due to these 
penalties, and the increased air emissions of the penalties. 
Additionally, visibility impacts from cooling towers, local climate 
change from wet cooling tower plumes, wildlife losses (e.g., birds 
colliding with towers), fish losses due to loss of heated aquatic 
plumes to support over-wintering habitats, and increased impediments to 
waterway navigation due to icing in northern regions are considered 
local impacts that can be addressed through the use of Track II or, in 
some cases, through design modifications of the recirculating wet 
cooling tower. EPA has provided costs for plume abatement (2 percent of 
the number of cooling towers) to address cooling tower emissions and 
considers the other impacts to be negligible and best addressed on a 
site-specific basis.
    Some commenters criticize EPA's approach to estimating capital and 
operating costs of recirculating wet cooling towers. The commenters 
claim that EPA has significantly underestimated the costs of a 
recirculating wet cooling tower by considering only the cost of the 
cooling tower without the additional cost of other necessary cooling 
system

[[Page 65308]]

equipment such as wiring, foundations, noise attenuation treatment, the 
cost of construction and other equipment. They claim also that EPA's 
estimates understate makeup water costs for wet cooling towers. The 
commenters add that EPA's cost multipliers for recirculating wet 
cooling towers are questionable and not consistent with a number of 
engineering texts. With respect to O&M costs, they question EPA's 
estimates for economies of scale. For dry cooling towers, the 
commenters object to EPA's methodology of making a direct cost 
comparison between dry cooling systems and wet cooling systems. They 
claim that EPA's approach for estimating capital and O&M costs for dry 
cooling towers is flawed because it relies on cooling water flow as the 
cost basis. In addition, they state that EPA does not provide cost 
equations or curves for dry cooling systems. One commenter claims that 
winterization costs of dry cooling systems were not considered by EPA 
and that EPA therefore has underestimated the system's costs.
    EPA fully documented the bases for recirculating wet cooling tower 
cost estimates in the NODA (66 FR 22866 and 22867). EPA disagrees with 
many of the comments regarding flaws in estimating capital and 
operating costs for cooling towers. The Technical Development Document 
and comment response document discuss EPA's costing estimates and 
consideration of the variety of issues asserted by commenters, such as 
documentation of equipment costs, foundations, noise attenuation, and 
the cost of construction. EPA has also considered the comments 
regarding makeup water costs. The estimates of costs for this rule 
reflect a realistic and accurate basis for makeup water usage in wet 
cooling towers. These issues are discussed further in Chapter 2 of the 
Technical Development Document. With respect to EPA's estimates of O&M 
economies of scale, EPA revised its estimates based on comments 
received and further analysis. EPA conducted a thorough review of its 
data and the public comments. Although the comments did not 
persuasively describe errors in EPA's economies of scale estimates, 
they did prompt EPA to reconsider the concept. EPA's further research 
revealed that there are economies of scale associated with certain 
components of O&M, but that use of economies of scale for total O&M 
costs would not be appropriate. As such, EPA's estimates for operation 
and maintenance costs for wet cooling towers have been refined to 
reflect no economies of scale. See Chapter 2 of the Technical 
Development Document for further discussion.
    In the NODA, EPA included further documentation to support its 
estimates of the costs of dry cooling systems (both for capital and O&M 
components). Despite the comments received expressing concern over the 
methodology employed by EPA to estimate the costs, EPA continues to 
view its empirical models as robust, accurate, and well suited for the 
purposes of the final rule. EPA acknowledges that basing cost curves 
for dry cooling systems on cooling flow is unconventional. However, the 
model is based on empirical data and accurately estimates the costs of 
dry cooling systems. Regarding the subject of winterization, EPA's 
costs inherently include this technological aspect as it is an 
incorporated design feature in modern dry cooling systems upon which 
the empirical models are correlated. See Chapter 4 of the Technical 
Development Document for further information regarding EPA's costing 
methodology for dry cooling.
    One commenter questions EPA's estimates regarding the ``design 
approach value'' used in plant cooling systems. The commenter 
recommends that EPA adopt an approach value of 8 deg.F instead of 
10 deg.F. The commenter claims that EPA has understated the size of the 
cooling towers with its approach value estimate. EPA provided 
significant documentation in the NODA regarding its estimates of 
cooling system design approach values. Specifically, data demonstrate 
that a 10 degree design approach for a wet cooling tower is acceptable 
industry practice. Chapter 3 of the Technical Development Document 
discusses this subject further and presents EPA's supporting data.
    Comments from manufacturers express concern over potential energy 
losses due to abandoning the use of waste heat for process water 
heating. They expressed concern that the proposed rule would discourage 
the practice of process and cooling water reuse. The commenters assert 
that if these potential energy loss costs were added to the other costs 
of the proposed rule, that the total cost could be substantially 
higher, possibly by several million dollars. Thus, the commenters 
state, the proposed rule could pose a significant and perhaps 
insurmountable hurdle for construction of new manufacturing facilities. 
EPA considered these comments and is adopting a definition of cooling 
water for the final rule (see Sec. 125.83) that addresses these 
concerns. At Sec. 125.86(b)(1)(ii), EPA also specifies that the amount 
of water withdrawn for cooling purposes that is reused or recycled in 
subsequent industrial processes is equivalent to closed-cycle 
recirculating cooling water for the purposes of meeting the Track I 
capacity-reduction, requirements at Sec. 125.84(b)(1). However, the 
amount of cooling water that is not reused or recycled must be 
minimized. Therefore, the commenters' concerns that costs could be 
substantially higher, possibly by several million dollars have been 
addressed in the final rule.
    Further, some commenters claim that EPA has not considered the 
costs of a sufficient number of regulatory alternatives or alternative 
technologies. EPA included, in Section VIII of this preamble and the 
Economic Analysis (Chapter 10), cost information on the range of 
regulatory alternatives considered for the final rule.
    One commenter on the NODA described the costs associated with 
potential delays in permit approvals. The commenter stated that should 
permitting delays extend the construction period, the associated costs 
would accumulate at a monthly rate associated with the finance costs 
associated with down-payments on equipment, the lost income from sales 
of electricity, and the cost of purchasing replacement power. For 
regulatory alternatives that have projected permitting delay, EPA has 
incorporated the commenter's suggestion to the extent possible. For the 
final rule, EPA is basing the regulatory option on a two-track 
compliance option that, under the ``fast track,'' has no associated 
delay in permitting. In addition, EPA has not accounted for cost 
savings of the rule over the current, resource intensive, case-by-case 
regulatory approach. In that sense, the final rule overestimates 
compliance costs.
    Another commenter to the NODA provided a case-study example for 
converting the Indian Point Units 2 and 3 to closed-cycle cooling water 
systems or dry cooling systems. The results show a small cost impact 
for closed-cycle cooling water systems and a modest cost impact for dry 
cooling, according to the commenter. In terms of the cost for producing 
power, the incremental cost for the installation and use of a closed-
cycle cooling water system, according to the commenter's analysis is 
0.01 to 0.03 cents per kWh. The commenter's analysis shows incremental 
costs for the installation and use of a hybrid cooling system between 
0.14 and 0.19 cents per kWh and 0.21 to 0.27 cents per kWh for dry 
cooling. EPA evaluated the case-study analysis presented by the 
commenter for this retrofit situation and finds the costs

[[Page 65309]]

to be relatively applicable (as the costing analysis was based on EPA's 
proposal cost estimates, EPA notes that some costing methodology 
revisions are not reflected in the commenter's analysis). EPA disagrees 
with several cost-related estimates made in the commenter's analysis, 
and therefore determines that the cost impacts of dry cooling 
technologies on the price of electricity is somewhat understated. See 
response to comment document for further discussion of this case-study 
analysis and EPA's technical review of the study.
2. Need For More Complete Assessment
    A number of industry respondents criticized the economic analysis 
supporting the rule arguing that it has underestimated the cost of the 
proposal. Several comments noted that the technology cost, along with 
the baseline biological characterization, has been underestimated. A 
few comments asserted that EPA has not considered additional 
alternatives in selecting the preferred option to comply with 
requirements of the Executive Order 12866. Industry commenters noted 
that EPA has not selected the best technology available on a cost-
benefit basis. Commenters also noted that the environmental cost of the 
technologies has not been reflected in the Economic Analysis. EPA 
recognizes that it selected best technology available for minimizing 
adverse environmental impact on the basis of what it determined to be 
an economically practicable cost for the industry as a whole. EPA did 
this by considering the cost of the rule as compared with the revenue 
of a facility, as well as the cost compared to the overall construction 
costs for a new facility. This approach is analogous to the economic 
achievability analyses it conducts for other technology-based rules 
under sections 301 and 306 of the CWA which use very similar language 
to section 316(b) and to which section 316(b) refers, and is consistent 
with the legislative history of section 316(b) of the CWA. At the same 
time, the record does contain analysis of the costs for a number of the 
regulatory alternatives considered under the rule.
    After reviewing these comments, EPA has revised the Economic 
Analysis. As discussed in the NODA, EPA has gathered additional cost 
information to verify its cost estimates. It has collected additional 
information on benefit or the efficacy of the technologies used in the 
costing exercise. EPA has used more recent forecasts to estimate the 
number of electric generation facilities. The energy penalty associated 
with certain technology options, which was not included in the economic 
analysis for the proposal, has been included in the final economic 
analysis. EPA considered the costs for a number of alternatives to the 
requirements in today's final rule.
3. Accuracy of the Estimates
    A number of commenters questioned the accuracy of the cost 
estimates. One commenter (Electric Power Supply Association) stated 
that EPA's estimates of the cost of the rule are based on several 
critical and arguable assumptions: (1) The rate of new facility 
development in the coming years, (2) the proportion of new facilities 
that would employ cooling water intake structures, (3) the costs of 
adopting one technology versus another, and (4) the cost of scientific 
and engineering studies. The combined effect of these assumptions, it 
is claimed, is that EPA underestimated the cost of the rule by as much 
as one-hundred-fold. Another commenter claimed that the cost of the 
rule would be more than five times higher than the EPA's estimates. The 
Utility Water Act Group (UWAG) estimated the cost of installing a 
cooling tower alone at $6,366.7 million for recirculating wet cooling 
towers and $11,245.3 million for dry cooling, assuming 100 percent of 
the combined-cycle facilities would be required to install towers.
    EPA considers these estimates to be unreasonable. After careful 
review of comments received and additional analyses, EPA estimates the 
annualized compliance cost of the final rule to be $47.7 million. This 
cost estimate includes a revised forecast for new electric generation 
capacity, a revised technology baseline for regulated facilities, a 
revised estimate of the number of regulated manufacturing facilities, 
and inclusion of costs for a comprehensive demonstration study in Track 
II. The example costs presented by UWAG were, as described by the 
commenter, not directly comparable to EPA's cost estimates. The 
commenter included a significant equipment cost in its analysis--that 
of the steam condenser--that clearly is not applicable to the 
incremental costs of this rule, as all new facilities would install a 
steam condenser regardless of this rule. In addition, several estimates 
for design variables differ from those used by EPA and significantly 
bias the capital and operation and maintenance costs upward. EPA 
analyzes and discusses the UWAG example for costs in the response to 
comment document.
4. Energy Supply
    Some industry respondents, including the Utility Water Act Group, 
argued that the section 316(b) proposal would be a significant threat 
to the national energy supply, would prohibit location of new power 
plants in most places, and would serve as a barrier to entry in the 
electric generation market. EPA disagrees with these assertions based 
on the siting impact analysis discussed at Section V.B.2., the 
relatively low cost of the rule as a proportion of revenues (as 
discussed in Section VIII), and the energy impact analysis described in 
Section X.J.
    Some of the commenters stated or implied that the cost of the rule 
would have a significant impact on meeting growth in energy demand. EPA 
disagrees with this assertion because the compliance cost of the final 
rule is an insignificant component of not only new facility revenue but 
also the construction cost of a new plant. Thus, the cost of the rule 
is too small to affect the electric generation market. The cost of the 
final rule is so low primarily because 93 percent of the projected new 
in-scope combined-cycle facilities, which are responsible for most of 
the new electric generation capacity, have already planned to install 
recirculating wet cooling towers in the baseline. Therefore, they will 
incur, in addition to permit application cost, only a cost associated 
with selecting and implementing a design and construction technology 
such as a wedgewire screen or a fish return system on a traveling 
screen. In addition, estimates show that most new in-scope coal 
facilities also plan to install cooling towers independently of this 
rule. Thus, the rule requirements will not have any significant effect 
on the energy supply. Had EPA chosen dry cooling technology as the best 
technology available for minimizing adverse environmental impact, the 
energy impact would have been significant (i.e., upwards of 0.51 
percent reduction (1,904 MW) of the projected new generating capacity).
    Commenters asserted that the requirements of the rule could 
adversely affect the reliability of the electric power system, 
potentially increasing the risk of brownouts or blackouts or a 
curtailment of load provided to a particular user. EPA disagrees with 
this assertion. While Track I requirements (for facilities with intake 
flows equal to or greater than10 MGD) to reduce capacity commensurate 
with the use of a closed-cycle, recirculating cooling system and to 
select and install design and construction technologies would result in 
an additional use of electric

[[Page 65310]]

power at a power plant not already planning to use these technologies, 
the magnitude of the electric use compared with total electric supply 
at the national level is negligible (approximately 0.03 percent (100 
MW) of projected new capacity). Only four coal-fired and five combined-
cycle plants are projected to install recirculating wet cooling towers 
because of the rule. Moreover, the magnitude of electricity required in 
the operation of design and construction technologies, such as a fish 
return system, is very small. Finally, future facilities are not 
necessarily required to install cooling towers; under Track II they 
have an option to conduct site-specific studies and seek to demonstrate 
that other technologies will reduce impacts to fish and shellfish to a 
level comparable to the level that would be achieved at their site with 
the Track I requirements for intake capacity and velocity. Thus, the 
efficiency issue associated with the recirculating wet cooling towers, 
raised in some comments, overemphasizes the effect on the power supply 
at the national level. Similarly, EPA does not believe that other 
requirements of the rule, such as the velocity limit and proportional 
flow requirements, will adversely affect efficiency at power plants. 
The Track I velocity requirements of the rule can be met by design 
changes including enlarging the opening of the cooling water intake 
structure and screens without reducing the flow and hence without 
influencing the cooling efficiency. The proportional flow limits in the 
rule would also be largely met by power plants without any discernible 
impact on their efficiency or net energy supply. As discussed in 
section V.B.1.c. above, EPA found that most existing facilities meet 
these requirements. The proportional limitation can be met during 
design by siting on an alternative waterbody or by choosing alternative 
technologies, for example. Additionally, see Section V.B.1. for a 
discussion of proportional flow limits.
    Commenters expressed concern that the regulatory requirements would 
result in delays in the construction of the new power plants, thus 
affecting the power supply and electricity prices. However, under Track 
I in the final rule, facilities can build a power plant without any 
required pre-permit monitoring.
    Some industry commenters asserted that the requirements of the rule 
could be a hindrance to cogeneration. EPA disagrees with this 
conclusion. Contrary to the assertion, Track I in the final rule 
provides incentives for cogeneration because it considers reuse of 
cooling water as process water and vice versa as equivalent to 
recirculation. Thus, a cogeneration facility can reuse cooling water as 
process water or vice versa and eliminate the need to install a 
recirculating wet cooling tower to save costs or reduce the size of any 
tower needed to meet the Track I intake capacity requirement.
5. Forecast for New Utility and Nonutility Electric Generators
    Most comments on the forecast of new utility and nonutility 
electric generators claimed that EPA underestimated the number of new 
generators in scope of the proposed section 316(b) new facility rule. 
Commenters cited several reasons for the alleged underestimate: (1) The 
use of an incomplete, outdated, or biased database as the basis of the 
estimate; (2) an underestimation of the number of facilities that will 
operate a CWIS; (3) an underestimation of the size of new facilities; 
and (4) the use of new capacity forecasts that are based on 
conservative assumptions regarding anticipated growth in demand for 
electricity. Two commenters claimed that the underestimation may be 
five-fold. Commenters also suggested that EPA underestimated the intake 
flow of regulated (in scope) facilities and the number of new 
generators that will use a once-through cooling system. One commenter 
claimed that the proposed section 316(b) new facility rule would cause 
additional delays in bringing new electricity supply on line.
    EPA used the most current and complete data available at the time 
to develop the projected number of new electric generators. To address 
the above comments, EPA updated and expanded its research as new data 
have become available. In support of the final section 316(b) new 
facility rule, EPA used the February 2001 version of the NEWGen 
database. Compared to the January 2000 NEWGen database used for 
proposal, the newer version contains more than twice the number of new 
projects (941 compared to 466). EPA researched more than three times as 
many greenfield combined-cycle facilities (320 compared to 94) and 
obtained cooling water source information on almost four times the 
number of facilities (199 compared to 56). While EPA recognizes the 
fast pace of changes in the electricity generation industry, EPA 
believes that the substantial increase in the number of greenfield 
electric generators analyzed will address concerns commenters had 
voiced. In addition, the much larger number of facilities identified as 
being in scope of the final section 316(b) new facility rule (57 
compared to seven) will provide a more robust and representative basis 
for estimating the characteristics (including size and cooling system 
type) and costs of new greenfield generators. Finally, EPA is using the 
Department of Energy's (DOE) updated Annual Energy Outlook 2001 as the 
basis for its total new capacity forecast. The 2001 Outlook is based on 
higher economic growth (in the reference case, 3.0 percent) and 
electricity demand (in the reference case, 1.8 percent) compared to the 
Annual Energy Outlook 2000 (2.2 percent and 1.4 percent, respectively). 
It should be noted that, for both the proposed and the final section 
316(b) new facility rule, EPA's projection of new electric generators 
is based on forecasts made by the DOE's Energy Information 
Administration (EIA), not forecasts made by EPA.
6. Forecast for New Manufacturers
    EPA received few comments on the number of new manufacturers 
estimated for the proposed rule. One main concern was that the proposed 
regulations could adversely impact offshore and coastal oil and gas 
drilling operations. At proposal, EPA had not considered or projected 
impacts on this industrial category. Among other concerns, these 
commenters stated that: (1) 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; (2) 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 fps velocity 
requirement if they become subject to the proposed requirements for 
cooling water intake structures at new facilities; and (3) higher 
cooling water intake velocities are necessary in marine waters to 
control biofouling of cooling water intake structures.
    EPA also received comments suggesting that certain industry 
segments should be exempted from the final section 316(b) new facility 
rule. One commenter claimed that EPA intended to exclude the wood 
products segment of the forest products industry from the proposed 
section 316(b) new facility rule because the proposal analysis did not 
explicitly analyze this segment. This commenter suggested this segment 
should be exempted because facilities generally use little water. 
Another commenter claimed that EPA has overestimated the number of new 
greenfield chemical facilities. This commenter stated that the actual 
number of new chemical facilities is

[[Page 65311]]

very low and that therefore, according to OMB guidelines, regulation of 
that industry segment is not justified.
    In response to these industry comments, EPA will propose and take 
final action on regulations for new offshore and coastal oil and gas 
facilities, as defined at 40 CFR 435.10 and 40 CFR 435.40, in the Phase 
III section 316(b) rule. EPA is deferring regulation of these 
facilities due to the unique engineering, cost, and economic issues 
associated with offshore and coastal drilling rigs, ships, and 
platforms. EPA will not categorically exempt new facilities in those 
land-based industry segments from the final section 316(b) new facility 
rule for any of the reasons suggested by commenters. EPA analyzed those 
industries that are most likely to experience adverse industry-level 
economic effects, based on their large-volume cooling water use. Any 
facility that meets the in-scope requirements set forth in Sec. 125.81 
will have to comply with the rule, irrespective of the number of in 
scope facilities in that segment, the industry's general cooling water 
characteristics, or whether the industry segment was explicitly 
analyzed in the proposal analysis. Should facilities in these other 
industrial categories face compliance costs wholly disproportionate to 
those EPA considered and found to be economically practicable in 
today's economic analysis, they can seek alternative requirements in 
accordance with the provisions at Sec. 125.85.

I. Benefits

    1. Cooling Water Intake Structure Impact Analysis Component of the 
Benefits Analysis for the Proposed Section 316(b) New Sources Rule
    Comments related to EPA's cooling water intake structure impact 
analysis in Chapter 11 of the new sources EEA were received from two 
industry commenters. The comments focused on four main topics: (1) 
Potential population-level consequences of impingement and entrainment, 
(2) potential compensatory responses of fish populations to mortality 
of early life stages, (3) potential impingement and entrainment 
survival, and (4) species and habitats that may be particularly 
sensitive to cooling water intake structure impacts.
    Both commenters argued that EPA should have evaluated the 
impingement and entrainment numbers presented in Chapter 11 of the EEA 
in relation to the total population of affected species, and one 
commenter commissioned a fisheries scientist to conduct such an 
analysis. EPA believes that a population-level analysis of the data 
presented in Chapter 11 is inappropriate for several reasons. First, as 
stated by EPA in its presentation of the data in Chapter 11, the 
purpose of the data compilation was to provide information on the 
relative magnitude of impingement and entrainment, not to evaluate 
potential secondary effects on the affected populations. Thus, EPA did 
not attempt to assemble the other types of data that the commenter 
noted would be required to evaluate potential effects of these losses 
on the populations of affected species. Such data include survival 
rates of early life stages, growth rates, reproductive rates, 
population size at the time of impingement and entrainment, and 
potential carrying capacity of the population in the surrounding 
waterbody. EPA notes that in most cases the studies that EPA examined 
did not provide such data.
    EPA also notes that the data uncertainties and potential biases 
associated with the impingement and entrainment data presented in 
Chapter 11 of the Economic Analysis (discussed by EPA in Section 11.2) 
should be taken into account in any analysis of the data, including 
evaluation of potential population-level effects. As EPA noted in 
Chapter 11, there is insufficient information in many of the source 
documents to determine how impingement and entrainment estimates may 
have been influenced by choices of which species to study, differences 
in collection and analytical methods among studies or across years, or 
changes in a facility over time. EPA is concerned that the consequences 
of such data uncertainties and biases are even greater for population-
level analyses than they are for an analysis of individuals. As EPA 
noted, the data are not a statistical sample; therefore, ``the data 
should be viewed only as general indicators of the potential range of 
impingement and entrainment losses.'' As one of the commenters 
acknowledges, ``EPA's estimates were used primarily to understand the 
relative proportion of different species impinged and entrained.''
    Both commenters argued that analyses involving long-term 
predictions of fish populations must include estimates of potential 
density-dependence (compensation). Again, EPA wishes to emphasize that 
the data presented in Chapter 11 were not intended for a population-
level analysis and are not suitable for such an evaluation. Thus, the 
argument that compensation must be considered is irrelevant in the 
context of EPA's EEA.
    One of commenters argued that the annual impingement and 
entrainment rates summarized by EPA do not equate to harm or losses of 
organisms, because many organisms survive impingement and entrainment. 
While some organisms may survive impingement and entrainment, the 
reliability of estimated entrainment mortality rates has been 
questioned because of various measurement uncertainties and sources of 
potential bias. \91\ Even if the results of existing studies are 
accepted, the data indicate that under normal operating conditions 
entrainment mortality can be quite high for many species. Depending on 
temperature conditions within the intake and the life stage involved, 
studies of Hudson River species found that entrainment mortality ranged 
from 93 to 100 percent for bay anchovy, 0 to 64 percent for Atlantic 
tomcod, 57 to 92 percent for herrings, 41 to 55 percent for white 
perch, and 18 to 55 percent for striped bass. \92\ A recent industry-
sponsored review of 36 entrainment survival studies found that 
anchovies and herrings have the highest entrainment mortality, 
generally in excess of 75 percent. \93\
---------------------------------------------------------------------------

    \91\ Boreman, J., L.W. Barnthouse, D.S. Vaughan, C.P. Goodyear, 
S.W. Christensen, K.D. Kumar, B.L. Kirk, and W. Van Winkle. 1982. 
The Impact of Entrainment and Impingement on Fish Populations in the 
Hudson River Estuary: Volume I, Entrainment Impact Estimates for Six 
Fish Populations Inhabiting the Hudson River Estuary. Prepared for 
the U.S. Nuclear Regulatory Commission, Office of Nuclear Regulatory 
Research by the Oak Ridge National Laboratory. ORNL/NUREG/TM-385/VI.
    \92\ Boreman, J., L.W. Barnthouse, D.S. Vaughan, C.P. Goodyear, 
S.W. Christensen, K.D. Kumar, B.L. Kirk, and W. Van Winkle. 1982. 
the Impact of Entrainment and Impingement on Fish Populations in the 
Hudson River Estuary: Volume I, Entrainment Impact Estimates for Six 
Fish Populations Inhabiting the Hudson River Estuary. Prepared for 
the U.S. Nuclear Regulatory Commission, Office of Nuclear Regulatory 
Research by the Oak Ridge National Laboratory. ORNL/NUREG/TM-385/VI.
    \93\ Electric Power Research Institute. Review of Entrainment 
Survival Studies: 1970-2000. Prepared by EA Engineering Science & 
Technology. December 2000.
---------------------------------------------------------------------------

    The two commenters disagreed with EPA's conclusion that the 
littoral zone is a more sensitive area. EPA is no longer including 
consideration of the littoral zone in its final rule. See discussion in 
Section VI.C.
    One commenter objected that EPA did not provide the original 
worksheets used by EPA to compile the impingement and entrainment data 
provided in Chapter 11 of the EEA, arguing that this would have 
facilitated an independent analysis by making it easier to ``quickly 
identify the studies used.'' However, EPA notes that all data sources 
are provided in footnotes to the tables and full citations are provided 
in the references section at the end of Chapter 11. The methods used to 
compile and summarize these data are

[[Page 65312]]

provided in Section 11.2 of the chapter, along with a discussion of 
data uncertainties and potential biases.
    Another technical issue raised by this commenter concerned the 
waterbody classification of two of the facilities in EPA's impingement 
and entrainment tables. For the waterbody classifications, EPA relied 
on the industry's 1995 Utility Data Institute database because results 
from EPA's section 316(b) industry survey were not yet available. This 
database indicated ``river'' for the waterbody type on which the 
intakes of Hudson River facilities are located. EPA agrees with the 
commenter that this is misleading, since the portion of the Hudson 
River where the intakes are located is a tidal river. For analysis 
supporting today's final rule, facility categorization for all 
facilities is based on the plant's response to the question on 
waterbody type in the Agency's section 316(b) industry survey 
administered for the existing facility rule. EPA has revised its data 
tables to place data from studies on Hudson River facilities under the 
``estuary and tidal river'' classification. Similarly, EPA agrees with 
the commenter that although the intake of the Monroe plant is on the 
Raisin River, the facility is more appropriately classified as a Great 
Lakes facility because of the fish species involved. EPA has therefore 
revised its tables so that impingement and entrainment data for this 
facility are now included with data for the Great Lakes. However, as 
noted above, the final rule does not distinguish among waterbody types, 
so such classifications do not have a direct effect on the final 
regulations.
2. Responses to Comments on the Economic Valuation Components of the 
Benefits Analysis for the Proposed Section 316(b) New Sources Rule
    The comments on the new sources benefits analysis (economic 
component) were all fairly generic in their statements and fairly 
consistent in their arguments. The main thrust throughout most of the 
relevant comments was to point out that the Agency had not developed a 
quantitative benefits analysis and, as such, it had failed to conform 
to its own guidance and the requirements of Executive Order 12866. Some 
comments noted that the benefits analysis did not generate relevant 
quantitative information that could be used to facilitate an 
informative comparison of benefits and costs, and several comments 
encouraged EPA to complete its benefits analysis. Industry comments 
have also repeatedly pointed out that the Agency should perform a site-
specific benefits analysis. In addition, several of the comments 
addressed aspects of how a benefits analysis should be performed. 
Specifically, comments described (1) what the steps of benefits 
analysis need to be (identify, quantify, and then value benefits), (2) 
the use of best practices in applying ``benefits transfer'' techniques 
for developing plausible monetary values to apply, and (3) the need to 
properly consider baseline conditions.
    As clearly noted and acknowledged in Chapter 11 of the EEA, ``EPA 
was unable to conduct a detailed, quantitative analysis of the proposed 
rule because much of the information needed to quantify and value 
potential reductions in impingement and entrainment at new facilities 
was unavailable'' (EEA, p. 11-1). The chapter then proceeds to detail 
the types of information that would be required to do the analysis for 
new sources (the chapter also offers some examples using available data 
to illustrate potential benefits based on site-specific studies of some 
existing facilities.)
    The comments received are accurate in the sense that they point out 
what the Agency acknowledges at the outset, namely, that a quantitative 
benefits analysis was not feasible for the proposed rule for new 
facilities. The comments received, however, do not offer data or 
methods that would enable the Agency to overcome these constraints. In 
fact, a main thrust of industry's comments has been that the Agency is 
required to do a site-specific benefits analysis, given the site-
specific nature of a benefits analysis.
    Because the gaps still exist in the types of information required 
to conduct a more comprehensive benefits analysis, the Agency has been 
unable to appreciably expand upon the economic portions of its benefits 
analysis for today's final rule. However, EPA is developing a more 
comprehensive assessment of benefits for its upcoming rulemaking for 
existing facilities, because some of the key data limitations can be 
more readily overcome when baseline conditions for the facilities and 
the impacted aquatic ecosystems can be identified and studied (these 
perspectives are not available for new sources with unknown locations).
    Finally, EPA notes that the Agency's Guidelines for Preparing 
Economic Analysis are, as the title states, ``guidelines'' and not 
strict requirements. Consistent with these guidelines and standard 
professional best practices, it is the Agency's intent to develop 
economic analyses that are as complete and reliable as is feasible for 
its rulemakings. However, it is neither required nor prudent for EPA to 
develop empirical estimates of benefits where data limitations or other 
critical constraints preclude doing so in a credible and reliable 
manner.
3. Comments on the Relevance and Estimation of Nonuse Values
    Two comments were received that questioned the applicability of 
nonuse benefits to the section 316(b) rulemaking and critiqued EPA's 
discussion of how such nonuse values might be estimated based on 
existing literature.
    These comments point out that the issue of nonuse values (also 
known in some literature as ``passive use'' values) has sometimes been 
controversial, which the Agency recognizes. Further, the comments 
accurately note that there are limited methods available for measuring 
nonuse values, and that the accuracy of these methods can be debated 
because there are no observable market transactions or other ways to 
infer values by using the revealed preferences of the American people.
    EPA recognizes that challenges associated with the estimation of 
nonuse values have been widely discussed in the economics literature as 
well as in the context of regulatory analysis and damage case 
litigation. However, consistent with the broadly accepted view in the 
economics profession, the Agency believes that nonuse values are likely 
to exist and apply for many (if not all) of the beneficial ecological 
outcomes that stem from EPA regulatory actions, including enhancements 
to aquatic systems as can be anticipated from the proposed section 
316(b) rulemaking. There is no convincing evidence to suggest that 
nonuse values strictly apply to only a small set of environmental 
resources or only to irreversible changes in the condition of those 
resources. Further, even if nonuse values were thought to apply only 
under limited circumstances, the proposed section 316(b) rule is likely 
to have beneficial impacts on species and resources of concern (e.g., 
threatened or endangered fish species) and thereby meet even a narrowly 
defined applicability test.
    EPA agrees with the comments in terms of recognizing that there are 
no clear preference methods available for estimating nonuse values. 
Nonetheless, there are a number of stated preference methods that can 
be and have been successfully applied to develop credible estimates of 
nonuse values. Research using some of the early applications of the 
contingent valuation method (CVM, which is one type of stated 
preference method that has been applied by economists for nonuse value 
estimation)

[[Page 65313]]

indicated that nonuse estimates derived from inadequately designed CVM 
survey instruments may not be wholly reliable. Nonetheless, the body of 
research on stated preferences that has evolved over the past several 
years provides a broadening array of tools and methodological 
refinements that overcome many of the limitations inherent in some of 
the earlier applications of contingent valuation methods. EPA believes 
that well-designed, fully tested, and properly implemented stated 
preference approaches can provide useful and credible measures of 
nonuse values.
    EPA would like to engage in a large-scale primary research effort 
to develop and apply state-of-the-art stated preference methods to the 
issue of estimating nonuse values for the ecological outcomes 
anticipated from section 316(b) regulatory options. However, the Agency 
lacks the budgetary resources, time, and appropriate authorities to 
pursue such research. Accordingly, the EEA discusses the viable 
alternative approach. Chapter 11 presents two types of benefits 
transfer approaches that the Agency has relied upon in past regulatory 
analyses and describes the findings of studies used in these exercises. 
While no estimates of nonuse benefits are made in the EEA, the 
discussion provided by the Agency establishes the appropriate concepts, 
approaches, and caveats that would be associated with the benefits 
transfer approach that would need to be used if the Agency were to 
develop such estimates.

J. Engineering and Economic Analysis Limitations

    Some commenters argued that the industry profiles presented in the 
proposed rule were inaccurate. One commenter noted that, in particular, 
the pulp and paper industry has changed substantially since the early 
1990's, the time period upon which EPA industry profile assumptions are 
based.
    EPA's economic analysis is based on the forecasts for new 
facilities. To the extent that forecasts are uncertain, the estimates 
for costs are uncertain. The economic analysis is based on the 20-year 
forecast, while the life of the facility is assumed to be 30 years for 
annualizing costs. Facility life spans could differ from the 30-year 
life span, and as a result the annualized cost to these facilities 
could also differ. To estimate the number of new facilities for the 
chemical sector, EPA assumed, on the basis of comments that the 
estimate of 50 percent used at proposal was too high, that 25 percent 
of growth in product demand would be met from the new facilities. 
However, data were not readily available to verify this assumption. As 
a sensitivity analysis, EPA also calculated costs by assuming that 37.5 
percent of the growth in new capacity in the chemicals sectors would 
occur at new facilities. In addition, for manufacturing facilities, EPA 
used the growth rates projected for three to five years to forecast 
growth over the 20-year time period.
    In estimating costs, EPA assumed that new manufacturing facilities 
that would become operational over the 20-year period would be 
uniformly distributed over time. Actual growth could differ from this 
predicted pattern. The economic analysis is based on five major 
industry groups that account for the vast majority of cooling water 
withdrawal in the U.S. Some facilities in other industries may withdraw 
cooling water in excess of 2 MGD and may incur some costs to comply 
with the requirements of the rule. Such costs are not reflected in the 
economic analysis because of lack of reliable and readily available 
data. To the extent that facilities in other industries are affected, 
EPA believes that the costs and economic impacts would be similar to 
those considered by EPA and found to be economically practicable.
    Numerous commenters argued that the cost estimates in the economic 
analysis are inaccurate, resulting in the underestimation of the total 
cost of the rule. Commenters disagreed with the cost analysis for many 
aspects of the rule, including but not limited to monitoring, 
operations and maintenance, contingency costs, and capital costs.
    To the extent possible, EPA used information on the specific 
characteristics of planned new plants for which information is 
available to project the baseline characteristics of facilities 
affected by the rule.
    Some commenters questioned the applicability and appropriateness of 
the economic analysis in relation to new (greenfield) facilities and 
existing facilities.
    The estimates do not cover substantial modification of existing 
facilities. These facilities are not covered by the rule; hence, 
estimates for these facilities are not reflected in this analysis.

K. EPA Authority

    Numerous commenters raised issues with regard to EPA's authority to 
implement section 316(b) in the proposed new facility rule. Commenters 
asserted that EPA's authority is limited to regulating CWISs and that 
by regulating dynamic flow, EPA is actually placing operational 
restrictions on the cooling system which in their view, are not part of 
a CWIS. Further, they argue that Congress did not give EPA authority to 
decide how much water a facility should withdraw, and thus, EPA may not 
regulate the gallons per day withdrawn, but must be limited to 
regulating physical and behavioral barriers located at the interface 
between the intake structure and the water body and separation and 
removal processes located between the point of withdrawal and the 
cooling water pumps. By these definitions, supply pumps and all other 
elements of the cooling water system are not intake structure 
technologies. Thus, commenters asserted EPA has no legal authority to 
require wet cooling or dry cooling.
    In response, EPA emphasizes that it is not requiring wet cooling, 
but that it is establishing performance-based technology requirements 
on the dynamic flow of the cooling water intake structure that reduce 
impingement and entrainment at a level that is achieved by using 
closed-cycle cooling. Section 316(b) authorizes EPA to impose 
limitations on the location, design, construction and capacity of 
CWISs. EPA interprets the statute to authorize it to regulate that 
volume of the flow of water withdrawn through a cooling water intake 
structure as a means of addressing ``capacity.'' In re Brunswick Steam 
Electric Plant, Decision of the General Counsel No. 41 (June 1, 1976). 
Such limitations on the volume of flow are consistent with the 
dictionary definition of ``capacity'' \94\, the legislative history of 
the Clean Water Act \95\, and the 1976 regulations. \96\ Id. Indeed, as 
Decision of the General Counsel No. 41 points out, the major 
environmental impacts of cooling water intake structures are those 
affecting aquatic organisms living in the volumes of water withdrawn 
through the intake structure. Therefore, regulation of the volume of 
the flow of water withdrawn also advances the objectives of section 
316(b).
---------------------------------------------------------------------------

    \94\ ``Cubic contents; volume; that which can be contained.'' 
Random House Dictionary of the English Language, cited in Decision 
of the General Counsel No. 41.
    \95\ Legislative History of the Water Pollution Control Act 
Amendments of 1972, 93d Cong., 1st Sess., at 196-7 (1973).
    \96\ 40 CFR 402.11(c) (definition of ``capacity''), 41 FR 17390 
(April 26, 1976).
---------------------------------------------------------------------------

    Commenters also stated that EPA's proposed proportional flow 
withdrawal requirements lack a legal foundation since the references to 
location and capacity in section 316(b) refer to the CWIS itself, not 
the whole cooling system, and Congress did not authorize

[[Page 65314]]

EPA to limit the siting of new facilities that use cooling water. To 
the extent that new facilities comply with this requirement by 
employing a wet cooling system or by obtaining water from other 
sources, EPA believes that this is within EPA's authority to regulate 
capacity, as stated above. Because the major environmental impacts of 
cooling water intake structures are those affecting aquatic organisms 
living in the volumes of water withdrawn through the intake structure, 
in the limited circumstances where the volume of water withdrawn would 
exceed the proportional flow requirements and the facility would need 
to locate elsewhere to meet the requirement, EPA believes this 
regulation of location also advances the objectives of section 316(b).
    Some commenters argued that section 316(b) is no more stringent 
than section 316(a) and thus section 316(b) compels EPA to interpret 
``adverse environmental impact'' as an impact with a demonstrated 
impact on a ``balanced indigenous population.'' EPA does not agree that 
the CWA compels EPA to interpret ``adverse environmental impact'' as 
that term is used in section 316(b) in the Act by reference to the 
phrase ``balanced indigenous population'' under section 316(a). The CWA 
is silent with respect to what is meant by ``adverse environmental 
impact'' under section 316(b), whereas the CWA specifically mentions 
``balanced indigenous population'' as a variance under section 316(a). 
The main guiding principles for statutory interpretations were 
articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 838, 843 (1984). There the court stated, if the 
statute is silent or ambiguous with respect to the specific issue, the 
question for the court is whether the agency's answer is based on a 
permissible construction of the statute. The court need not conclude 
that the agency construction was the only one it permissibly could have 
adopted to uphold the construction, or even the reading the court would 
have reached if the question initially had arisen in a judicial 
proceeding. Thus, if a statute is ambiguous and an agency's 
interpretation of the statute is reasonable, a court must defer to the 
agency. Here, EPA's interpretation of the statute is reasonable and 
furthers the purposes of the CWA. This interpretation is further 
supported because Congress used different terms in section 316(b) than 
it used in section 316(a). Congress did not refer to a ``balanced 
indigenous population'' in section 316(b) of the CWA. Where Congress 
includes particular language in one section of a statute, but omits it 
in another section of the same act, it is generally presumed that 
Congress acted intentionally and purposely in the disparate inclusion 
or exclusion. Bates v. U.S., 522 U.S. 23 (1997). See also Florida 
Public Telecommunications Ass'n, Inc. v. F.C.C., 54 F.3d 857 (D.C. Cir. 
1995). Further, section 316(a) and section 316(b) address two different 
issues. Section 316(a) addresses the discharge of heated water while 
section 316(b) address the withdrawal of huge volumes of water. Thus, 
it is reasonable to view the two different sections of the statute as 
addressing different environmental problems in different ways. In re 
Brunswick Steam Electric Plant, Decision of the General Counsel No. 41 
(June 1, 1976). For purposes of implementing section 316(b) in the new 
facility rule, EPA thinks it is reasonable to interpret the phrase 
adverse environmental impacts as including a range of impacts, 
including impingement and entrainment, diminishment of compensatory 
reserve, stresses to the population or ecosystem, harm to threatened or 
endangered species, impairment of state water quality standards, see 
Section V, above.
    Some commenters stated that section 316(b), which focuses on 
intakes, not discharges, does not authorize EPA to establish a rule 
authorizing States to set additional cooling water intake structure 
requirements to meet state water quality standards. EPA addresses this 
issue in Section V.B. above.

L. Restoration

    In the proposed rule EPA requested comments on a variety of 
mandatory, discretionary, and voluntary regulatory approaches involving 
restoration measures (65 FR 49089). Many commenters supported a role 
for restoration or mitigation. These commenters stated that restoration 
is a well-accepted concept that should have a voluntary role in section 
316(b) determinations and constitutes an appropriate means for sources 
to reduce the potential for causing adverse environmental impact to 
below the level of regulatory concern, or reduced regulatory concern. 
Commenters further stated that restoration should not be mandatory and 
that EPA lacks authority to require it but should not preclude 
restoration measures from playing an important role in section 316(b) 
permitting decisions. These same commenters stated that restoration 
should not be considered the best technology available for minimizing 
adverse environmental impact because it is not a technology that 
addresses the location, design, construction, or capacity of a cooling 
water intake structure.
    Other commenters strongly opposed restoration measures as 
substitute for direct controls, arguing that they are not the ``best 
technology available for minimizing adverse environmental impact,'' but 
the commenters thought restoration measures may have a role in 
compensating for past harms to the aquatic environment or as an 
additional consideration above the protections offered by direct 
controls. Another commenter added that restoration measures, in the 
context of section 316(b), are generally unworkable and that the only 
measurable restoration method would be offsetting, in which an 
applicant would stop use of an older intake facility that does more 
harm than the proposed one.
    Some commenters also stated that restoration should be included in 
permitting considerations when it is determined that dry cooling is not 
feasible. In this case, the facility should use a wet closed-cycle 
recirculating system and restoration should be considered. These 
commenters also suggested that, if restoration is allowed, there should 
be consultation with other State and Federal resource agencies to avoid 
inconsistent approaches. Finally, commenters stated that section 316(b) 
does not authorize mandatory restoration.
    Today's final rule for new facilities includes restoration measures 
as part of Track II. EPA is not including restoration in Track I 
because this track is intended to be expeditious and provide certainty 
for the regulated community and a streamlined review process for the 
permitting authority. To do this for new facilities, EPA has defined 
the best technology available for minimizing adverse environmental 
impact in terms of reduction of impingement and entrainment, an 
objective measure of environmental performance. By contrast, 
restoration measures in general require complex and lengthy planning, 
implementation, and evaluation of the effects of the measures on the 
populations of aquatic organisms or the ecosystem as a whole.
    EPA is including restoration measures in Track II to the extent 
that the Director determines that the measures taken will maintain the 
fish and shellfish in the waterbody in a manner that represents 
performance comparable to that achieved in Track I. Applicants in Track 
II need not undertake restoration measures, but they may choose to 
undertake such measures. Thus, to the extent that such measures achieve 
performance comparable to that

[[Page 65315]]

achieved in Track I, it is within EPA's authority to authorize the use 
of such measures in the place of the Track I requirements. This is 
similar to the compliance alternative approach EPA took in the effluent 
guidelines program for Pesticide Chemicals: Formulating, Packaging and 
Repackaging. There EPA established a numeric limitation but also a set 
of best management practices that would accomplish the same numeric 
limitations. See 61 FR 57518, 57521 (Nov. 6, 1997). EPA believes that 
section 316(b) of the Clean Water Act provides EPA with sufficient 
authority to authorize the use of voluntary restoration measures in 
lieu of the specific requirements of Track I where the performance is 
substantially similar under the principles of Chevron USA v. NRDC, 467 
U.S. 837, 844-45 (1984). Here, Congress is silent concerning the role 
of restoration technologies in the statute and in the legislative 
history, either by explicitly authorizing or explicitly precluding 
their use. EPA also believes that appropriate restoration measures or 
conservation measures that are undertaken on a voluntary basis by a new 
facility to meet the requirements of the rule fall within EPA's 
authority to regulate the ``design'' of cooling water intake 
structures. Bailey v. U.S., 516 U.S. 137 (1995)(In determining meaning 
of words used in a statute, court considers not only the bare meaning 
of the word, but also its placement and purpose in the statutory 
scheme.)
    This interpretation of the statute fits well within the purpose of 
section 316(b) of the CWA. The purpose of section 316(b) is to minimize 
adverse environmental impact from cooling water intake structures. 
Restoration measures that result in the performance comparable to that 
achieved in Track I further this objective while offering a significant 
degree of flexibility to both permitting authorities and facilities.
    EPA recognizes that restoration measures have been used at existing 
facilities implementing section 316(b) on a case-by-case, best 
professional judgment basis as an innovative tool or as a tool to 
conserve fish or aquatic organisms, compensate for the fish or aquatic 
organisms killed, or enhance the aquatic habitat harmed or destroyed by 
the operation of cooling water intake structures. Under Track II, this 
flexibility will be available to new facilities to the extent that they 
can demonstrate performance comparable to that achieved in Track I. For 
example, if a new facility that chooses Track II is on an impaired 
waterbody, that facility may choose to demonstrate that velocity 
controls in concert with measures to improve the productivity of the 
waterbody will result in performance comparable to that achieved in 
Track I. The additional measures may include such things as reclamation 
of abandoned mine lands to eliminate or reduce acid mine drainage along 
a stretch of the waterbody, establishment of riparian buffers or other 
barriers to reduce runoff of solids and nutrients from agricultural or 
silvicultural lands, removal of barriers to fish migration, or creation 
of new habitats to serve as spawning or nursery areas. Another example 
might be a facility that chooses to demonstrate that flow reductions 
and less protective velocity controls, in concert with a fish hatchery 
to restock fish being impinged and entrained with fish that perform a 
similar function in the community structure, will result in performance 
comparable to that achieved in Track I.
    EPA recognizes that it may not always be possible to establish 
quantitatively that the reduction in impact on fish and shellfish is 
comparable using the types of measures discussed above as would be 
achieved in Track I, due to data and modeling limitations. Despite such 
limitations, EPA believes that there are situations where a qualitative 
demonstration of comparable performance can reasonably assure 
substantially similar performance. EPA is thus providing, in 
Sec. 125.86, that the Track II Comprehensive Demonstration Study should 
show that either: (1) The Track II technologies would result in 
reduction in both impingement mortality and entrainment of all life 
stages of fish and shellfish of 90 percent or greater of the reduction 
that would be achieved through Track I (quantitative demonstration) or, 
(2) if consideration of impacts other than impingement mortality and 
entrainment is included, the Track II technologies will maintain fish 
and shellfish in the waterbody at a substantially similar level to that 
which would be achieved under Track I (quantitative or qualitative 
demonstration).
    EPA does not intend the foregoing discussion or today's rule to be 
authoritative with respect to any ongoing permit proceedings for 
existing facilities or previously issued existing facility permits, 
which should continue to be governed by existing legal authorities. EPA 
will address the issue of restoration further in Phase II and Phase 
III.

VII. Implementation

    Under the final rule, section 316(b) requirements would be 
implemented through the NPDES permit program. These regulations 
establish application, monitoring, recordkeeping, and reporting 
requirements for new facilities. The regulations also require the 
Director to review application materials submitted by each new facility 
and include the requirements and monitoring and recordkeeping 
requirements in the permit.
    EPA will develop a model permit and permitting guidance to assist 
Directors in implementing these requirements. In addition, the Agency 
will develop implementation guidance for owners and operators that will 
address how to comply with the application requirements, the sampling 
and monitoring requirements, technology plans, and the recordkeeping 
and reporting requirements in these regulations.

A. When Does the Rule Become Effective?

    This rule becomes effective thirty (30) days from the date of 
publication. After the effective date of the regulation, new facilities 
are required to submit the application data for cooling water intake 
structures required under these regulations.

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

    The NPDES application process under 40 CFR 122.21 requires that 
facilities submit information and data 180 days prior to the 
commencement of a discharge. If you are the owner or operator of a 
facility that meets the new facility definition, you will be required 
to submit the information that is required under 40 CFR 122.21 and 
Sec. 125.86 of today's final rule with your initial permit application 
and with subsequent applications for permit reissuance. The Director 
will review the information you provide and will confirm whether your 
facility is a new facility and establish the appropriate requirements 
to be applied to the cooling water intake structure(s).
    At 40 CFR 122.21, today's rule requires all owners or operators of 
new facilities to submit three general categories of information when 
they apply for an NPDES permit. The general categories of information 
include (1) physical data to characterize the source water body in the 
vicinity where the cooling water intake structures are located, (2) 
data to characterize the design and operation of the cooling water 
intake structures, and (3) existing data (if they are available) to 
characterize the baseline biological condition of the source waterbody. 
All applicants must also submit a statement specifying whether they 
will comply with either Track I or Track II

[[Page 65316]]

(Sec. 125.86(a)(1)), and source waterbody flow information 
(Secs. 125.86(b)(3) or 125.86(c)(1)). If you are a Track I applicant, 
you must also submit (1) data to show you will meet the Track I flow 
and velocity requirements and (2) a design and construction technology 
plan demonstrating that you have selected design and construction 
technologies necessary to minimize impingement mortality and/or 
entrainment if you are located where such technologies are necessary. 
If you are a Track II applicant, you must also submit a comprehensive 
demonstration study with detailed information on source waterbody and 
intake structure characteristics, and a verification monitoring plan. 
Applicants seeking an alternative requirement under Sec. 125.85 must 
submit data that demonstrate that their compliance costs would be 
wholly out of proportion to the costs considered by EPA in establishing 
the requirements of Secs. 125.84(a) through (e) or that compliance with 
the rule would cause significant adverse impacts on local air quality, 
local water resources or local energy markets.
    The following describes the application requirements for all new 
facilities and the requirements specific to Tracks I and II in more 
detail.
1. All New Facilities
a. Source Water Physical Data
    All new facilities must provide the source water physical data 
required at 40 CFR 122.21(r)(2) in their permit applications. These 
data are needed to characterize the facility and evaluate the type of 
waterbody and species affected by the cooling water intake structure. 
This information will also be used by the permit writer to evaluate the 
appropriateness of the design and construction technologies selected by 
the applicant for use at their site in subsequent permit proceedings. 
Specific data items that must be submitted include (1) a narrative 
description and scale drawings showing the physical configuration of 
all source waterbodies used by the facility, including areal 
dimensions, depths, salinity and temperature regimes, and other 
documentation; (2) an identification and characterization of the source 
waterbody's hydrological and geomorphological features, as well as the 
methods used to conduct any physical studies to determine the intake's 
zone of influence and the results of such studies; and (3) locational 
maps.
b. Cooling Water Intake Structure Data
    All new facilities must submit the cooling water intake structure 
data required at 40 CFR 122.21(r)(3) to characterize the cooling water 
intake structure and evaluate the potential for impingement and 
entrainment of aquatic organisms. Information on the design of the 
intake structure and its location in the water column will allow the 
permit writer to evaluate which species or life stages would 
potentially be subject to impingement and entrainment. A diagram of the 
facility's water balance would be used to identify the proportion of 
intake water used for cooling, make-up, and process water. The water 
balance diagram also provides a picture of the total flow in and out of 
the facility, allowing the permit writer to evaluate compliance with 
the Track I flow reduction requirements (if applicable). Specific data 
on the intake structure include (1) a narrative description of the 
configuration of each of your cooling water intake structures and where 
it is located in the waterbody and in the water column; (2) latitude 
and longitude in degrees, minutes, and seconds for each of your cooling 
water intake structures; (3) a narrative description of the operation 
of each of your cooling water intake structures, including design 
intake flows, daily hours of operation, number of days of the year in 
operation, and seasonal changes, if applicable; (4) a flow distribution 
and water balance diagram that includes all sources of water to the 
facility, recirculating flows, and discharges; (5) engineering drawings 
of the cooling water intake structure.
c. Source Water Baseline Biological Characterization Data
    All new facilities must submit the source water baseline biological 
characterization data required in 40 CFR 122.21(r)(4) with their permit 
application. This information will characterize the biological 
community in the vicinity of the cooling water intake structure as well 
as the operation of the cooling water intake structures. The Director 
may use this information in subsequent permit renewal proceedings to 
determine if the applicant's design and construction technology plan 
should be revised. This supporting information must include existing 
data (if available), which may be supplemented with new field studies 
if the applicant so chooses. The applicant must submit the following 
specific data (1) a list of the data that are not available and efforts 
made to identify sources of the data; (2) if available, a list of 
species (or relevant taxa) in the vicinity of the cooling water intake 
structure, and identification of the species and life stages that would 
be most susceptible to impingement and entrainment (including both 
nekton and meroplankton) (Species identified should include the range 
of species in the system including the forage base); (3) if available, 
identification and evaluation of the primary period of reproduction, 
larval recruitment, and period of peak meroplankton abundance for 
relevant taxa; (4) if available, information sufficient to provide data 
representative of the seasonal and daily biological activity in the 
vicinity of the cooling water intake structure; (5) if available, 
identification of all threatened or endangered species that might be 
susceptible to impingement and entrainment at your cooling water intake 
structures; (6) documentation of any public participation or 
consultation with Federal or State agencies undertaken in collecting 
the data; (7) if the above data are supplemented with data collected in 
actual field studies, a description of all methods and quality 
assurance procedures for data collection, sampling, and analysis, 
including a description of the study area; identification of the 
biological assemblages to be sampled or evaluated (both nekton and 
meroplankton); and data collection, sampling, and analysis methods. The 
sampling or data analysis methods used must be appropriate for a 
quantitative survey and based on a consideration of methods used in 
other biological studies performed within the same source waterbody. 
The study area should include, at a minimum, the area of influence of 
the cooling water intake structure.
d. Source Water Flow Data
    All facilities must demonstrate compliance with the source water 
flow requirements in Secs. 125.84(b)(3) and (c)(2). Information to show 
that a new facility is in compliance with these requirements must be 
submitted to the Director in accordance with Secs. 125.86(b)(3) and 
(c)(1).
    If your facility is located on a freshwater river or stream, you 
must submit data that supports that you are withdrawing less than five 
(5) percent of the annual mean flow. The documentation might include 
either publicly available flow data from a nearby U.S. Geological 
Survey (USGS) gauging station or actual instream flow monitoring data 
that the facility has collected itself. The waterbody flow should be 
compared with the total design flow of all cooling water intake 
structures at the new facility.

[[Page 65317]]

    If your cooling water intake structure is withdrawing water from an 
estuary or a tidal river, you need to calculate the tidal excursion and 
provide the flow data for your facility and the supporting 
calculations. The tidal excursion distance can be computed using three 
different methods ranging from simple to complex. The simple method 
involves using available tidal velocities that can be obtained from the 
Tidal Current Tables formerly published by the National Ocean Service 
of the National Oceanic and Atmospheric Administration (NOAA) and 
currently printed and distributed by private companies (available at 
bookstores or marine supply stores). The midrange method involves 
computing the tidal excursion distance using the Tidal Prism Method. 
\97\ The complex method involves the use of a two-dimensional or three-
dimensional hydrodynamic model. The simplest method to use is the 
following:
---------------------------------------------------------------------------

    \97\ Diana, E., A.Y. Kuo, B.J. Neilson, C.F., Cerco, and P.V. 
Hyer. 1987. Tidal prism model manual, Virginia Institute of Marine 
Science, Gloucester Point, VA.
---------------------------------------------------------------------------

    (1) Locate the facility on either a NOAA nautical chart or a base 
map created from the USGS 1:100,000 scale Digital Line Graph (DLG) data 
available on the USGS website. These DLG Data can be imported into a 
computer-aided design (CAD) program or geographic information system 
(GIS). If these tools are unavailable, 1:100,000 scale topographic maps 
(USGS) can be used.
    (2) Obtain maximum flood and ebb velocities (in meters per second) 
for the waterbody in the area of the cooling water intake structure 
from NOAA Tidal Current Tables.
    (3) Calculate average flood and ebb velocities (in meters per 
second) over the entire flood or ebb cycle by using the maximum flow 
and ebb velocities from 2 above.
[GRAPHIC] [TIFF OMITTED] TR18DE01.026

[GRAPHIC] [TIFF OMITTED] TR18DE01.027

    (4) Calculate the flood and ebb tidal excursion distance using the 
average flood and ebb velocities from 3 above.
[GRAPHIC] [TIFF OMITTED] TR18DE01.028

[GRAPHIC] [TIFF OMITTED] TR18DE01.029

    (5) Using the total of the flood and ebb distances from above, 
define the diameter of a circle that is centered over the opening of 
the cooling water intake structure.
    (6) Define the area of the waterbody that falls within the area of 
the circle (see Appendix 2 to Preamble). The area of the waterbody, if 
smaller than the total area of the circle might be determined either by 
using a planimeter or by digitizing the area of the waterbody using a 
CAD program or GIS. For cooling water intake structures located 
offshore in large waterbodies, the area of the waterbody might equal 
the entire area of the circle (see D in Appendix 3 to Preamble). For 
cooling water intake structures located flush with the shoreline, the 
area might be essentially a semicircle (see C in Appendix 3 to 
Preamble). For cooling water intake structures located in the upper 
reaches of a tidal river, the area might be some smaller portion of the 
area of the circle (see A in Appendix 3 to Preamble).
    (7) Calculate the average depth of the waterbody area defined in 6 
above. Depths can easily be obtained from bathymetric or nautical 
charts available from NOAA. In many areas, depths are available in 
digital form.
    (8) Calculate a volume by multiplying the area of the waterbody 
defined in 6 by the average depth from 7. Alternatively, the actual 
volume can be calculated directly with a GIS system using digital 
bathymetric data for the defined area.
    If your cooling water is withdrawn from a lake or reservoir, you 
must submit information such as a narrative description of the 
waterbody thermal stratification and any supporting documentation and 
engineering calculations to show that your cooling water intake 
structure meets the requirement not to alter the natural thermal 
stratification or turnover pattern (where present) of the source water 
except in cases where the disruption is determined to be beneficial to 
the management of fisheries for fish and shellfish by any fishery 
management agency(ies). Typically, this natural thermal stratification 
will be defined by the thermocline, which may be affected to a certain 
extent by the withdrawal of cooler water and the discharge of heated 
water into the system. This information demonstrates to the permit 
writer that you are maintaining the thermal stratification or turnover 
pattern (where present) of the source water except in cases where the 
disruption is determined to be beneficial to the management of 
fisheries for fish and shellfish by any fishery management agency(ies) 
such that it maintains appropriate habitat for the biological makeup of 
the waterbody.
2. Track I Facilities
a. Flow Reduction Information
    New facilities larger than 10 MGD that choose Track I must submit 
the data on flow reduction required in Sec. 125.86(b)(1) with their 
permit applications. New facilities between 2 and 10 MGD that choose to 
comply with the Track I requirements at Sec. 125.84(b) must also submit 
this data. The information required includes a narrative description of 
the water balance of the closed-cycle recirculating cooling water 
system for the facility and an

[[Page 65318]]

engineering demonstration that the intake flows have been minimized to 
the maximum extent reasonably possible. You should also consider all 
feasible methods to re-use blowdown in other plant operations. New 
facilities between 2 and 10 MGD that choose to comply with the Track I 
requirements at Sec. 125.84(c) must submit data that shows that the 
facility's total design water intake flow is less than 10 MGD. See 
Sec. 122.21(r)(3)(iii).
b. Velocity Information
    New facilities that choose Track I must submit the data on velocity 
required in Sec. 125.86(b)(2) with their permit applications. The 
information required includes a narrative description of the design, 
structure, equipment, and operation used to meet the performance 
requirement and any engineering calculations used to calculate design 
through-screen velocity.
c. Design and Construction Technology Plan
    If you select Track I, Sec. 125.86(b)(4) and (b)(5) require you to 
include a Construction Technology Plan in your application that 
demonstrates that your facility has selected and will implement the 
design and construction technologies necessary to minimize impingement 
mortality and/or entrainment when certain conditions exist at the site. 
If you select Track I and choose to comply with the requirements of 
Sec. 125.84(c) (which are available to facilities between two and ten 
MGD) you much install technologies to reduce impingement at some 
locations and you must install technologies to reduce entrainment at 
all sites. See Sec. 125.84(c)(3) and (4). Examples of such technologies 
that may be appropriate for your site include, but are not be limited 
to (1) fish-handling and return systems, (2) wedgewire screens, (3) 
fine mesh screens, (4) barrier nets, and (5) aquatic filter barrier 
systems. The Agency recognizes that selection of the specific 
technology or group of technologies for your site will depend on 
individual facility and waterbody conditions.
    In the application, you need to describe the technology(ies) you 
will implement at your facility to meet the requirements in 
Sec. 125.84(b)(4) and (5) or Sec. 125.84(c)(3) and (4), the basis for 
their selection, and the expected level of performance. During 
subsequent permit terms, the Director may require you to implement 
additional or different design and construction technologies if the 
initial technologies you selected and implemented do not meet the 
requirement of minimizing impingement mortality and entrainment.
3. Track II Facilities
a. Comprehensive Demonstration Study
    If you select Track II, Sec. 125.86(c)(2) requires you to perform 
and submit to the Director the results of a Comprehensive Demonstration 
Study, including data and detailed analyses to demonstrate that you 
will reduce the impacts to fish and shellfish to levels comparable to 
the level you would achieve were you to implement the Track I 
requirements at Sec. 125.84(b)(1), and (2). To meet the ``comparable 
level'' requirement, you must demonstrate that you have reduced both 
impingement mortality and entrainment of all life stages of fish and 
shellfish to 90 percent or greater of the reduction that would be 
achieved through Track I, or if your demonstration includes 
consideration of impacts other than impingement mortality and 
entrainment, that the measures taken will maintain the fish and 
shellfish in the waterbody at a substantially similar level to that 
which would be achieved through Track I. Your proposed technologies may 
specifically include the reuse of spent cooling water as industrial 
process water and the associated reductions in process water 
withdrawals from the source waterbody as a means for reducing intake 
capacity and impingement and entrainment.
    The Comprehensive Demonstration Study has four parts:
     A proposal for how information will be collected;
     A Source Water Biological Study;
     An evaluation of potential cooling water intake structure 
effects; and
     A Verification Monitoring Plan.

These plans and evaluations must be submitted to the Director with the 
permit application.
    Under Sec. 125.86(c)(2)(iii)(B), you may submit data from previous 
biological studies performed in the vicinity of the proposed or actual 
intake if the data are no more than 5 years old so that they reasonably 
represent existing conditions. You must demonstrate that such existing 
data are fully representative of the current conditions in the vicinity 
of the intake and provide documentation showing that the data were 
collected by using established and reliable quality assurance 
procedures.
    Before performing the study you must submit to the Director a plan 
stating how information will be collected to support the study. This 
plan must provide (1) a description of the proposed technology(ies) to 
be evaluated; (2) a list and description of any historical studies 
characterizing the physical and biological conditions in the vicinity 
of the proposed or actual intakes and their relevancy to the proposed 
study; (3) a summary of any public participation or consultation with 
Federal or State agencies undertaken in development of the plan; and 
(4) a sampling plan for data that will be collected in actual field 
studies in the source waterbody that documents all methods and quality 
assurance procedures for data collection, sampling, and analysis. The 
study area for such field studies must include, at a minimum, the area 
of influence of the cooling water intake structure and at least 100 
meters beyond. The area of influence is the portion of water subject to 
the forces of the intake structure such that a particle within the area 
is likely to be pulled into the intake structure.
    You must submit the results of a Source Water Biological Study in 
accordance with Sec. 125.86(c)(2)(iv)(A). This characterization must 
include (1) a taxonomic identification and characterization of aquatic 
biological resources (nekton and meroplankton) to provide a summary of 
historic and contemporary aquatic biological resources; a determination 
and description of the target populations of concern (those species and 
life stages that would be most susceptible to impingement and 
entrainment); and a description of the abundance and temporal and 
spatial characterization of the target populations based on the 
collection of multiple years of data to capture the seasonal and daily 
biological activity in the vicinity of the cooling water intake 
structure; (2) an identification of all threatened or endangered 
species that might be susceptible to impingement and entrainment by the 
cooling water intake structures; and (3) a description of additional 
chemical, water quality, and other anthropogenic stresses on the source 
waterbody. The Director might coordinate a review of your list of 
threatened or endangered species with the U.S. Fish and Wildlife 
Service and/or National Marine Fisheries Service staff to ensure that 
potential impacts to threatened or endangered species have been 
addressed.
    The study must evaluate the potential for cooling water intake 
structure effects in accordance with Sec. 125.86(c)(2)(iv)(A). This 
evaluation must include (1) a statement of the baseline against which 
the comparative analyses will be made. The impingement and entrainment 
baselines must be calculated for the facility by assuming a design of a 
once-through cooling water system employing a trash rack and traveling

[[Page 65319]]

screens; (2) an engineering estimate of the efficacy of proposed 
technologies in reducing impacts to fish and shellfish to a level 
comparable to the level that would be achieved by meeting the Track I 
requirements at the site. To demonstrate that the technologies meet the 
``comparable level'' requirement, the demonstration must show that both 
impingement and entrainment of all life stages of fish and shellfish 
have been reduced to 90 percent or greater of the reduction that could 
be achieved through Track I, or, if impacts other than impingement 
mortality and entrainment are considered, that the measures taken will 
maintain the fish and shellfish in the waterbody at a substantially 
similar level to that which would be achieved through Track I. The 
efficacy projection must include a site-specific evaluation of 
technology suitability for reducing impingement and entrainment based 
on design, location, and operational specification applied to the 
characterization and a site-specific evaluation of any additional 
measures based on the physical, chemical, and biological 
characteristics of the site; and (3) a characterization of impingement 
and entrainment survival estimates of the proposed alternative 
technology based on case studies in the vicinity of the cooling water 
intake structure and/or site-specific technology prototype studies, and 
a characterization of fish and shellfish propagation and survival 
based, for example, on case studies documenting the efficacy of any 
additional measures performed at similar sites.
    To demonstrate that you will reduce impingement mortality and 
entrainment to a level of reduction comparable to the level that you 
would achieve if you implemented Track I requirements at your site, you 
will need to develop a conceptual engineering design of a hypothetical 
recirculating water system for your facility, including the estimated 
intake flow. The estimated intake flow should take into account an 
optimized system in which the volume of intake flow/blowdown is 
minimized to the maximum extent feasible. The conceptual design should 
also include proposed design and construction technologies that would 
be used to minimize impingement mortality and entrainment pursuant to 
Sec. 125.84(b)(4) and (5). Finally, you should estimate the expected 
level of impingement and entrainment associated with the hypothetical 
intake structure for all species found in substantial numbers in source 
waterbody in the vicinity of the intake structure. In estimating 
entrainment, 100 percent mortality may be assumed to preclude the need 
to perform entrainment survival studies.
    You must then calculate and document the expected level of 
performance of the proposed alternative technologies for all species 
found in significant numbers in the source waterbody in the vicinity of 
the intake structure. Such documentation may consist of pilot-scale 
testing at the proposed facility, representative performance data from 
comparable facilities, or both. In preparing the documentation you 
should specifically show that the pilot-scale or comparable facility 
data address the following factors that may affect technology 
performance:
     Physical and chemical watershed conditions (temperature, 
freezing and thawing, tidal conditions, wave action, sediment and 
debris, flow, etc.);
     Biological watershed conditions (individual species, life 
stages, predator species, seasonality, etc.);
     Engineering feasibility and long-term reliability, and
     Operation and maintenance issues.
    Available data suggests that alternative design and construction 
technologies for cooling water intake structures can achieve the level 
of reduction in impingement mortality and entrainment required under 
Track I. Technologies such as fine and wide-mesh wedgewire screens, as 
well as aquatic filter barrier systems, have been shown to reduce 
mortality from impingement by up to 99 percent or greater compared with 
conventional once-through systems. In addition, other types of barrier 
nets may achieve reductions of 80 to 90 percent, and modified screens 
and fish return systems, fish diversion systems, and fine mesh 
traveling screens and fish return systems have achieved reductions in 
impingement mortality ranging from 60 to 90 percent greater than 
conventional once-through systems. Similarly, with regard to 
entrainment, although there is less available full scale performance 
data, aquatic filter barrier systems, fine mesh wedgewire screens, and 
fine mesh traveling screens with fish return systems have been shown to 
achieve 80 to 90 percent greater reduction in mortality from 
entrainment compared with conventional once-through systems. Several 
additional factors suggest that these performance levels can be 
improved upon. First, some of the cooling water intake structure 
technology performance data reviewed is from the 1970's and 1980's and 
does not reflect recent developments and innovation (e.g., aquatic 
filter barrier systems, sound barriers). Second, these conventional 
barrier and return system technologies have not been optimized on a 
widespread level to date, as would be encouraged by this rule. Such 
optimization can be best achieved by new facilities, which can match 
site conditions to available technologies. Third, EPA believes that 
many facilities could achieve further reductions (estimated 15-30 
percent) in impingement and entrainment by providing for seasonal flow 
restrictions, variable speed pumps, and other innovative flow reduction 
alternatives. Finally, new facilities seeking to comply under Track II 
can choose the specific location of their cooling water intake 
structures to further optimize the level of reduction in impingement 
mortality and entrainment (i.e., locate the cooling water intake 
structure outside of biologically productive or sensitive areas to the 
extent this would serve to reduce environmental impact). For additional 
discussion, see Section V.B.2.
    Finally, new facilities complying under Track II must submit a 
Verification Monitoring Plan in accordance with 
Sec. 125.86(c)(2)(iv)(A). The plan must include information on how the 
facility will conduct a monitoring study to verify the full-scale 
performance of the proposed technologies and of any additional 
measures. The plan must describe the frequency of monitoring and the 
parameters to be monitored. The Director will use the verification 
monitoring to verify that you are meeting the level of impingement and 
entrainment expected and that fish and shellfish are being maintained 
at the level expected. The Director will then determine whether to 
approve the use of the suite of alternative technologies in subsequent 
permit issuance. Verification monitoring must start during the first 
year that the cooling water intake structure begins operation and 
continue for a sufficient period of time to demonstrate that the 
facility is reducing impingement mortality and entrainment to a level 
of reduction comparable to the level the facility would have been 
achieved by implementing the flow reduction and design velocity 
requirements of Track I.
4. Data To Support a Request for Alternative Requirements
    If, pursuant to Sec. 125.85(a), you request that an alternative 
requirement less stringent than those specified in Sec. 125.84 be 
required in your permit, Sec. 125.85(b) places the burden on you to 
show that your compliance costs are wholly out of proportion to the 
costs EPA considered during development of

[[Page 65320]]

the requirements at issue, or that compliance with the national 
standard will result in significant adverse impact to local air 
quality, local water resources, or local energy markets. Compliance 
costs that EPA considered were subdivided into one-time costs and 
recurring costs. Examples of one-time costs include capital and permit 
application costs. Examples of recurring costs include operation and 
maintenance costs, permit renewal costs, and monitoring, recordkeeping, 
and reporting costs.

C. How Will the Director Determine the Appropriate Cooling Water Intake 
Structure Requirements?

    The Director's first step would be to determine whether the 
facility is covered by this rule If the answer is yes to all the 
following questions, the facility must comply with the requirements of 
this final rule.
    (1) Is the facility a ``new facility'' as defined in Sec. 125.83?
    (2) Does the new facility withdraw cooling water from waters of the 
U.S.; OR does the facility obtain cooling water by any sort of contract 
or arrangement with an independent (supplier or multiple suppliers) of 
cooling water if the supplier(s) withdraw(s) water from waters of the 
U.S. and is not a public water system?
    (3) Is at least 25 percent of the water withdrawn by the facility 
used for cooling purposes?
    (4) Does the new facility have a design intake flow of greater than 
2 million gallons per day (MGD)? \98\
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    \98\ If the answer is no to these flow parameters and yes to all 
the other questions, the Director would use best professional 
judgment on a case-by-case basis to establish permit conditions that 
ensure compliance with section 316(b).
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    (5) Does the new facility discharge pollutants to waters of the 
U.S., including storm water-only discharges, such that the facility has 
or is required to have an NPDES permit?
    If these final regulations are applicable to the applicant, the 
second step would be to determine the locational factors associated 
with the new facility's cooling water intake structure. The Director 
would first review the information that the new facility provided to 
validate the source waterbody type in which the cooling water intake 
structure is located (freshwater stream or river, lake or reservoir, 
estuary or tidal river, or ocean). (As discussed above, the applicant 
would need to identify the source waterbody type in the permit 
application and provide the appropriate documentation to support the 
waterbody type classification.) The Director would review the 
supporting material the applicant provided in the permit application. 
The Director would also review the engineering drawings and the 
locational maps the applicant provided, documenting the physical 
placement of the cooling water intake structure.
    For Track I facilities, the Director's next step would be to review 
the design requirements for intake flow and velocity. For a new 
facility with an intake flow equal to or greater than 10 MGD that is 
required to reduce its intake flow to a level commensurate with that 
which could be attained by a closed-cycle recirculating cooling water 
system, the Director would review the narrative description of the 
closed-cycle recirculating cooling water system design and any 
engineering calculations to ensure that the new facility is complying 
with the requirement and that the make-up and blowdown flows have been 
minimized. If the flow reduction requirement is met by reusing or 
recycling water withdrawn for cooling purposes, the Director must 
review documentation that the amount of cooling water that is not 
reused or recycled has been minimized.
    The velocity requirement is based on the design through-screen or 
through-technology velocity as defined in Sec. 125.83. For Track I 
facilities, the maximum design velocity would always be 0.5 ft/s. To 
determine whether the new facility meets the maximum design velocity 
requirement, the Director would review the narrative description of the 
design, structure, equipment, and operation used to meet the velocity 
requirement. The Director would also review the design calculations 
that demonstrate that the maximum design velocity would be met. In 
reissuing permits, the Director would review velocity monitoring data 
to confirm that the facility is not exceeding the initial design 
velocity calculated at the start of commercial service.
    Under Track I, the Director would then review the applicant's 
Design and Construction Technology Plan (if the applicant is located in 
an area where such technologies are required) and the applicant's 
Source Water Baseline Biological Characterization data. During each 
permit renewal, the Director would then review monitoring data, 
application data, and other supporting information to determine whether 
the applicant needs to implement additional or different design and 
construction technologies (see discussion of Sec. 125.89(a)(2) below).
    Under Track II, the Director would receive and should review the 
applicant's proposed plan for preparing the Comprehensive Demonstration 
Study. When the applicant proposes to rely on existing studies, the 
Director would assess the data quality and the relevance to the 
proposed facility. When new biological surveys are proposed, the 
Director would determine whether they fully characterize the waterbody 
potentially impacted by impingement and entrainment. Where pilot-scale 
demonstrations are proposed, the Director would evaluate whether they 
are generally representative of full-scale operations. After the study 
is completed, the Director would review the applicant's analysis, 
specifically to determine whether the proposed alternative 
technology(ies) will reduce impingement mortality and entrainment to a 
level of reduction comparable to the level that the facility would 
achieve if it complied with the Track I requirements for reducing 
intake capacity and design velocity, or if the proposed measures in 
conjunction with the proposed technologies will maintain the fish and 
shellfish in the waterbody at a substantially similar level to that 
which would be achieved. The Director would also review the facility's 
Technology Verification Plan for post-operational monitoring to 
demonstrate that the technologies are performing as predicted.
    The proportional flow requirement applicable to all facilities is 
based on waterbody type. To determine whether the new facility meets 
the flow requirement, the Director would first verify the new 
facility's determination of the waterbody flow for the respective 
waterbody type (e.g., annual mean flow and low flow for freshwater 
river or stream). The Director would review the source-water flow data 
the facility provided in the permit application. The Director should 
consider using available USGS data (for freshwater rivers and streams) 
to verify the flow data in the permit application. Then the Director 
would review any supporting documentation and engineering calculations 
that demonstrate that the new facility would meet the flow 
requirements. To verify the flow data the new facility provides for an 
estuary or a tidal river, the Director would review the facility's 
calculation of the tidal excursion.
    The final regulations at Sec. 125.84(e) require compliance with any 
more stringent requirements relating to the location, design, 
construction, or capacity of a cooling water intake structure or 
monitoring requirements at a new facility that a Director deems 
necessary to comply with any provision of State law, including state 
water quality standards, including designated

[[Page 65321]]

uses, criteria, and antidegradation provisions.

D. What Will I Be Required to Monitor?

    At Sec. 125.87, today's final rule requires biological monitoring 
and visual or remote inspections at all facilities. Track I facilities 
and Track II facilities that rely on specified velocity levels as part 
of their alternative technology(ies) are also required to monitor 
screen head loss and velocity.
    Both Track I and Track II facilities must conduct biological 
monitoring for impingement and entrainment to assess the presence, 
abundance, life stages, and mortality (eggs, larvae, post larvae, 
juveniles, and adults) of aquatic organisms (fish and shellfish) 
impinged or entrained during operation of the cooling water intake 
structure. These data would also be used by the permitting authority in 
subsequent permit terms to determine whether additional or modified 
design and construction technologies are reasonably necessary (see 
discussion of Sec. 125.89(a)(2) in D. below). The facility would be 
required to conduct impingement and entrainment sampling over a 24-hour 
period no less than once per month when the cooling water intake 
structure is in operation and report results to the Director annually. 
After two years, the Director may approve an applicant's request for 
less frequent biological monitoring if the facility provides data to 
support the request showing that less frequent monitoring would still 
allow for the detection of any seasonal and daily variations in the 
species and numbers of individuals that are impinged or entrained. The 
Director should approve a request for reduced frequency in biological 
monitoring only if the supporting data show that the technologies are 
consistently performing as projected under all operating and 
environmental conditions and less frequent monitoring would still allow 
for the detection of any future performance fluctuations.
    Under Sec. 125.87(b), Track I facilities are required to monitor 
the head loss across the intake screens to obtain a correlation of 
those values with the design intake velocity (Track I) or other 
specified velocity (Track II) at minimum ambient source-water surface 
elevation (according to best professional judgment based on available 
hydrological data). The maximum head loss across the screen for each 
cooling water intake structure must be used to determine compliance 
with the velocity requirement in Sec. 125.84(b)(2) and (c)(1). The data 
collected by monitoring this parameter would provide the Director with 
additional information after the design and construction of the cooling 
water intake structure to demonstrate that the facility is operating 
and maintaining the cooling water intake structure in a manner such 
that the velocity requirement continues to be met. The Agency considers 
this the most appropriate parameter to monitor, because, although the 
facility might be designed to meet the requirement, proper operation 
and maintenance is necessary to maintain the open area of the screen 
and intake structure, ensuring that the design intake velocity is 
maintained. Head loss can easily be monitored by measuring and 
comparing the height of the water in front of and behind the screen or 
other technology. Track I facilities that use devices other than 
screens would be required to measure the actual velocity at the point 
of entry through the device. Velocity can be measured with velocity 
meters placed at the entrance into the device.
    Weekly visual or remote inspections are required to provide a 
mechanism for both the new facility and the Director to ensure that any 
technologies that have been implemented for minimizing adverse 
environmental impact are being maintained and operated in a manner that 
ensures that they function as designed. EPA has promulgated this 
requirement so that facilities that develop plans and install 
technologies could not operate them improperly so that adverse 
environmental impact is not minimized to the extent expected. The 
Director would determine the actual scope and implementation of the 
visual inspections based on the types of technologies installed at your 
facility. For example, inspections could be as simple as observing 
bypass and other fish handling systems to ensure that debris has not 
clogged the system and rendered it inoperable.

E. How Will Compliance Be Determined?

    This rule will be implemented by the Director placing conditions 
consistent with this rule in NPDES permits. Compliance with permit 
conditions implementing this rule require the following data and 
information:
     Data submitted with the NPDES permit application to show 
that the facility is in compliance with location, design, construction, 
and capacity requirements (Sec. 125.86).
     Compliance monitoring data and records, including those 
for impingement and entrainment monitoring, to show that impingement 
and entrainment impacts are being minimized (Sec. 125.87(a)).
     Through-screen or through-technology velocity monitoring 
data and records to show that the facility is being operated and 
maintained as designed to continue to meet the velocity requirement 
(Sec. 125.87(b)).
     Records from visual or remote inspections to show that 
technologies installed are being operated properly and function as they 
were designed (Sec. 125.87(c)).

Facilities are required to keep records and report the above 
information in a yearly status report in Sec. 125.88. In addition, 
Directors may perform their own compliance inspections as deemed 
appropriate in accordance with 40 CFR 122.41.

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

    Section 316(b) requirements are implemented through NPDES permits. 
As discussed in Section II.A today's final regulations would amend 40 
CFR 123.25(a)(36) to add a requirement that authorized State programs 
have sufficient legal authority to implement today's requirements (40 
CFR part 125, subpart I). Therefore, today's final rule potentially 
affects authorized State and Tribal NPDES permit programs. Under 40 CFR 
123.62(e), any existing approved section 402 permitting program must be 
revised to be consistent with new program requirements within one year 
from the date of promulgation, unless the NPDES-authorized State or 
Tribe must amend or enact a statute to make the required revisions. If 
a State or Tribe must amend or enact a statute to conform with today's 
final rule, the revision must be made within two years of promulgation. 
States and Tribes seeking new EPA authorization to implement the NPDES 
program must comply with the requirements when authorization is 
requested.
    In addition to updating their programs to be consistent with 
today's rule, States and Tribes authorized to implement the NPDES 
program would be required to implement the cooling water intake 
structure requirements following promulgation of the final regulations. 
The requirements must be implemented upon permit issuance and 
reissuance. Duties of an authorized State or Tribe under this 
regulation include
     Verification of a permit applicant's determination of 
source waterbody classification and the flow or volume of certain 
waterbodies at the point of the intake;
     Verification that the intake structure maximum flow rate 
is less than the maximum allowable as a proportion of waterbody flow 
for certain waterbody types;

[[Page 65322]]

     Verification that a Track I permit applicant's design 
intake velocity calculations meet applicable regulatory requirements;
     Verification that a Track I permit applicant's intake 
design and reduction in capacity are commensurate with a level that can 
be attained by a closed-cycle recirculating cooling water system that 
has minimized make-up and blowdown flows;
     Verification that a Track II permit applicant's 
Comprehensive Demonstration Study demonstrates that the proposed 
alternative technologies will reduce the impacts to fish and shellfish 
to levels comparable to those the facility would achieve if it met the 
Track I requirements;
     Development of draft and final NPDES permit conditions for 
the applicant implementing applicable section 316(b) requirements 
pursuant to this rule; and
     Ensuring compliance with permit conditions based on 
section 316(b) requirements.
    EPA will implement these requirements where States or Tribes are 
not authorized to implement the NPDES program.

G. Are Permits for New Facilities Subject to Requirements Under Other 
Federal Statutes?

    EPA's NPDES permitting regulations at 40 CFR 122.49 contain a list 
of Federal laws that might apply to federally issued NPDES permits. 
These include the Wild and Scenic Rivers Act, 16 U.S.C. 1273 et seq.; 
the National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq.; 
the Endangered Species Act, 16 U.S.C. 1531 et seq.; the Coastal Zone 
Management Act, 16 U.S.C. 1451 et seq.; and the National Environmental 
Policy Act, 42 U.S.C. 4321 et seq. See 40 CFR 122.49 for a brief 
description of each of those laws. In addition, the provisions of the 
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 
1801 et seq., relating to essential fish habitat might be relevant. 
Nothing in this final rulemaking authorizes activities that are not in 
compliance with these or other applicable Federal laws.

H. Alternative Requirements

    Today's rule establishes national requirements for new facilities. 
EPA has taken into account all the information that it was able to 
collect, develop, and solicit regarding the location, design, 
construction, and capacity of cooling water intake structures at new 
facilities. EPA concludes that these requirements reflect the best 
technology available for minimizing adverse environmental impact on a 
national level. In some cases, however, data that could affect the 
economic practicability of requirements might not have been available 
to be considered by EPA during the development of today's rule. 
Therefore, EPA is including Sec. 125.85 to allow for adjustment of the 
requirements of Sec. 125.84 in certain limited circumstances.
    Section 125.85 would allow the Director, in the permit development 
process, to set alternative best technology available requirements that 
are less stringent than the nationally applicable requirements. Under 
Sec. 125.85(a), any interested person may request that alternative 
requirements be imposed in the permit. Section 125.85(a) provides that 
alternative requirements that are less stringent than the requirements 
of Sec. 125.84 would be approved only if the Administrator determines 
that compliance with the requirement at issue would result in 
compliance costs wholly out of proportion to the costs considered 
during development of the requirement at issue or in significant 
adverse impacts on local air quality, local water resources or local 
energy markets; the alternative requirement requested is no less 
stringent than justified by the wholly out of proportion cost or 
significant adverse impact; and the alternative requirements will 
ensure compliance with other applicable provisions of the Clean Water 
Act and any applicable requirements of State law.
    Because new facilities have a great degree of flexibility in their 
siting, in how their cooling water intake structures are otherwise 
located, and in the design, construction, and sizing of the structure, 
cost is the primary factor that would justify the imposition of less 
stringent requirements as part of the alternative requirements 
approach. This is because other factors affecting the location, design, 
construction, and capacity of cooling water intake structures at new 
facilities can be addressed by modifications that may have cost 
implications. EPA notes that alternate discharge standards are not 
allowed in the somewhat analogous case of the new source performance 
standards that EPA establishes under section 306 of the CWA for the 
discharge of effluent from new sources in particular industrial 
categories. However, because EPA is acting under a separate authority 
in this rule, section 316(b) of the CWA, and because section 316(b) of 
the CWA is silent concerning this issue, EPA believes it is reasonable 
to interpret section 316(b) to give EPA discretion to establish 
alternative requirements for new facility cooling water intake 
structures. EPA takes this position because this final rule would 
establish requirements for cooling water intake structures at any type 
of new facility in any industrial category above the flow threshold. 
\99\ Thus, in some instances it might be possible that the costs of 
complying with today's final requirements would be wholly out of 
proportion to the costs EPA considered and determined to be 
economically practicable. As discussed in the Economic Analysis Chapter 
7, EPA has analyzed the cost of compliance with today's final 
requirements for all facilities projected to be built in the reasonably 
foreseeable future, as well as other types of facilities that might be 
built at later dates (such as large base-load steam electric generating 
facilities that do not use combined-cycle technology) and concludes 
that these compliance costs would be economically practicable for all 
types of facilities the Agency considered. However, should an 
individual new facility demonstrate that costs of compliance for a new 
facility would be wholly out of proportion to the costs EPA considered 
and determined to be economically practicable, the Director would have 
authority to adjust best technology available requirements accordingly.
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    \99\ Except for facilities in the offshore and coastal 
subcategories of the oil and gas extraction point source category as 
defined under 40 CFR 435.10 and 40 CFR 435.40.
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    Under Sec. 125.85(a), alternative requirements would not be granted 
based on a particular facility's ability to pay for technologies that 
would result in compliance with the requirements of Sec. 125.84. Thus, 
so long as the costs of compliance are not wholly out of proportion to 
the costs EPA considered and determined to be economically practicable, 
the ability of an individual facility to pay in order to attain 
compliance with the rule would not support the imposition of 
alternative requirements.
    EPA has allowed for alternative requirements where the facility 
demonstrates, to the satisfaction of the Director, that at a local 
level, the air quality impacts, non-impingement and entrainment aquatic 
effects, or energy impacts of complying with the requirements of 
Sec. 125.84 are significant and justify a different approach to 
regulating cooling water intake structures.
    Section 125.85(a) specifies procedures to be used in the 
establishment of alternative requirements. The burden is

[[Page 65323]]

on the person requesting the alternative requirement to demonstrate 
that alternative requirements should be imposed and that the 
appropriate requirements of Sec. 125.85 (a) have been met. The person 
requesting the alternative requirements should refer to all relevant 
information, including the support documents for this rulemaking, all 
associated data collected for use in developing each requirement, and 
other relevant information that is kept on public file by EPA.

VIII. Economic Analysis

    The total estimated annualized compliance costs of today's final 
rule is $48 million.\100\ This estimate includes incremental costs 
incurred by new facilities that begin operation between 2001 and 2020. 
Facilities not already meeting section 316(b) requirements incur 
several types of costs under today's final rule. One-time costs of the 
rule include capital technology costs and costs for the initial permit 
application. Recurring costs include operating and maintenance (O&M) 
costs, permit renewal costs, and costs for monitoring, record keeping, 
and reporting. EPA's cost estimates are presented in Chapters 6 and 7 
of the Economic Analysis and in the Technical Development Document.
---------------------------------------------------------------------------

    \100\ The estimated annualized compliance costs are presented as 
a single cost to represent the highestpotential implementation costs 
to industry. For example, although such costs are based on estimates 
of howmany facilities will choose compliance under Track I and Track 
II, even facilities estimated to follow TrackII have been assumed to 
ultimately have to install closed-cycle recirculating cooling water 
systems.
---------------------------------------------------------------------------

    Today's final rule provides for a two-track approach to comply with 
the rule's requirements. Facilities that already plan to install a 
closed-cycle cooling system in the baseline are assumed to choose Track 
I, the ``fast track.'' These facilities will incur only the costs of 
installing fish baskets and a fish return system if they would not have 
already elected to install these technologies independent of the rule. 
EPA records document that the screens were sized to reduce the 
velocity. Facilities that do not plan to install a closed-cycle cooling 
system in the baseline are assumed to choose Track II. These facilities 
will install alternative technologies of their choice that will reduce 
impingement mortality and entrainment to a level of reduction 
comparable to the level the facility would achieve if it met the Track 
I requirements. The alternative technologies considered in the cost 
analysis are further discussed in Chapter 5 of the Technical 
Development Document.
    Chapter 2 of the Technical Development Document outlines EPA's 
approach to estimating the facility-level costs associated with this 
rule. EPA estimated costs for a series of model facilities, based on 
their cooling system type (once-through or recirculating system), the 
type of water body from which the intake structure withdraws 
(freshwater or marine water), and a measure of the facility's size 
(generating capacity for steam-electric generating capacity plants and 
design intake flow for manufacturers). Model facility characteristics 
were derived from specific new facilities predicted to be built based 
on Resource Data International's NEWGen Database, and from existing 
facilities based on responses to the section 316(b) industry survey of 
existing facilities (see discussion below) and U.S. Department of 
Energy information. EPA estimated compliance costs for the 121 new 
facilities estimated to begin operation between 2001 and 2020, based on 
model facility characteristics and the requirements of today's final 
rule. EPA amortized capital cost estimates over 30 years.\101\ EPA 
projected construction of 121 new facilities over the next 20 years 
after promulgation of the final rule.
---------------------------------------------------------------------------

    \101\ The amortization period was selected to correspond to the 
estimated useful life of the technologiesrequired for compliance 
with this rule. EPA conducted a sensitivity analysis using a 15-
yearamortization period (see Chapter 7 of the Economic Analysis).
---------------------------------------------------------------------------

A. Electric Generation Sector

    For the period 2001 through 2020, EPA estimates that 83 new 
electric generation facilities will be subject to today's final 
rule.\102\ EPA identified these facilities based on three main data 
sources: (1) The U.S. Department of Energy's Annual Energy Outlook 2001 
(AEO2001); (2) Resource Data International's NEWGen Database (February 
2001 version); and (3) the section 316(b) industry survey of existing 
facilities. Because the facilities are new facilities that have not yet 
been built, EPA necessarily had to project certain aspects of the 
facilities. Hence, the facilities are model facilities. For more 
information on EPA's facility modeling, see Chapter 5 of the Economic 
Analysis.
---------------------------------------------------------------------------

    \102\ See Section IV.A. above or Chapter 5 of the Economic 
Analysis for underlying estimates and methods used for estimating 
the cost of the rule.
---------------------------------------------------------------------------

    EPA estimated facility-level costs for the 83 new electric 
generation facilities found to be within the scope of this rule by 
comparing each facility's projected baseline characteristics with the 
incremental requirements of the rule. If a facility already planned to 
fulfill any of the applicable requirements independent of the rule, the 
cost estimates did not include any costs for meeting that requirement. 
For example, EPA estimates that 74 of the 83 proposed new generating 
facilities already plan to build a recirculating wet cooling tower, so 
only 9 facilities are assumed to incur costs for complying with the 
flow reduction requirement at Sec. 124.84(b)(1) of the final rule.
    EPA used annual forecasts of new capacity additions from the 
AEO2001 to predict how many of the 83 new generating facilities will 
begin operation in each year between 2001 and 2020. EPA then 
distributed the new facilities estimated to install a cooling tower 
evenly over the years with projected new facilities. For example, EPA 
estimates that three of the 14 new in-scope coal-fired facilities are 
planning to build a once-through system in the baseline. The cost 
analysis therefore assumes that the 1st, 6th, and 11th coal-fired 
facility to begin operation will incur costs of a recirculating wet 
cooling tower. An additional coal facility which plans to have a 
cooling pond was treated as having a once-through system in the 
baseline and was also costed with a cooling tower.\103\ This facility 
was assumed to be the 2nd to begin operation. EPA's assumptions on when 
new Track I coal facilities will begin operation leads to an 
overestimate of the total costs of this rule because higher cost 
facilities are over represented among the coal facilities beginning 
operation early in the 20-year analysis period. Additionally, EPA 
estimates that five of the 69 new in-scope combined-cycle facilities 
would install a recirculating wet cooling tower as a result of the 
rule. The cost analysis therefore assumes that the 1st, 16th, 30th, 
44th, and 58th combined-cycle facility to begin operation will incur 
costs of a recirculating wet cooling tower.
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    \103\ In some states, a cooling pond is considered a water of 
the U.S. In these states, a plant with such a cooling system would 
have to comply with the recirculating requirements of the final 
section 316(b) New Facility Rule. In those states where a cooling 
pond is not considered a water of the U.S., a plant would not have 
to comply with the recirculating requirements of this rule. The 
costing analysis made the conservative assumption that facilities 
with a cooling pond would have to comply with the recirculating 
requirements. These recirculating facilities with cooling ponds were 
therefore costed as if they had a once-through system in the 
baseline.
---------------------------------------------------------------------------

    Total annualized costs for the 83 new facility electric generators 
are estimated to be $34.7 million (using a 7 percent discount rate). 
The lowest annualized compliance cost for any electric generator is 
estimated to be

[[Page 65324]]

approximately $170,000; the lowest annualized cost per megawatt of 
generating capacity is estimated to be $153. The highest annualized 
cost is estimated to be $19.1 million; the highest cost per megawatt of 
generating capacity is estimated to be $11,640. Sixty-nine facilities 
are expected to have relatively low annualized compliance costs (below 
$200,000 per facility), while 8 facilities will have annualized costs 
exceeding $1 million per facility.\104\ The other facilities would have 
costs between $200,000 and $1 million per facility.
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    \104\ The higher-cost electric generators are expected to begin 
operation in the years 2004, 2005 (two facilities), 2007 (two 
facilities), 2010, 2013, and 2017.
---------------------------------------------------------------------------

B. Manufacturing Sector

    For the period 2001 through 2020, EPA projected that 38 new 
manufacturing facilities will incur costs to comply with today's final 
rule. All of these facilities are model facilities estimated based on 
industry growth rates (derived from the U.S. Industry and Trade Outlook 
2000 and industry-specific sources, such as Kline's Guide to the 
Chemical Industry) and responses to the section 316(b) industry survey. 
Facility-specific operational characteristics of the cooling water 
intake structures, economic and financial characteristics of the 
projected new facilities, and waterbody type and other locational 
information were not available. EPA assumed that the characteristics of 
new facilities in a given 4-digit SIC code will be similar to the 
characteristics of existing facilities in that same SIC code. 
Compliance costs were therefore calculated based on the characteristics 
of existing facilities by SIC code, source water type, cooling system 
type, and flow, using data from the section 316(b) industry survey of 
existing facilities. EPA used the same unit costs and methods as for 
new electric generators.
    Total annualized costs for the 38 new manufacturing facilities are 
estimated to be $13.0 million. The lowest annualized compliance cost 
for any facility is approximately $175,000; the highest annualized cost 
is $1.6 million; the average annualized costs for the remaining 36 
manufacturing facilities centers around $494,000 per facility. Five of 
the manufacturing facilities incur annualized costs less than $200,000 
per facility, and one chemicals facility incurs annualized costs 
exceeding $1 million.
    Exhibit 4 provides a summary of the estimated annualized compliance 
costs for today's final rule.

       Exhibit 4.--National Annualized Costs of Compliance with the Section 316(b) New Facility Regulation
                                              [in $2000, millions]
----------------------------------------------------------------------------------------------------------------
                                                     Number of      Capital and                        Total
                                                   projected new      permit         Recurring      annualized
                Industry category                    in-scope       application        costs        compliance
                                                    facilities         costs                           costs
----------------------------------------------------------------------------------------------------------------
Electric Generators:
    Combined-Cycle..............................              69            $3.7            $9.6           $13.3
    Coal-Fired..................................              14             4.1            17.3            21.4
                                                 ---------------------------------------------------------------
        Total Generators........................              83             7.8            26.9            34.7
Manufacturing Facilities:
    SIC 26 Pulp & paper.........................               2             0.2             0.3             0.5
    SIC 28 Chemicals............................              22             2.7             4.1             6.8
    SIC 29 Petroleum............................               2             0.3             0.5             0.8
    SIC 331 Iron & steel........................              10             1.9             2.8             4.6
    SIC 333/335 Aluminum........................               2             0.1             0.1             0.2
                                                 ---------------------------------------------------------------
        Total Manufacturing.....................              38             5.2             7.8            13.0
            All Projected New Facilities........             121            12.9            34.7            47.7
----------------------------------------------------------------------------------------------------------------

C. Economic Impacts

    The estimated annualized compliance costs would represent a small 
portion of the estimated revenues for almost all of the new facilities 
subject to today's rule. Costs as a percentage of baseline revenues 
would be less than 1 percent for all but nine of the facilities. Of 
these nine facilities, only 3 would experience costs as a percentage of 
baseline revenues of 3 percent or more. \105\ EPA's discussion of cost 
impacts is presented in Chapter 7 of the Economic Analysis. Impacts at 
the industry level are expected to be very limited because the 
projected number and total capacity of the new facilities that are 
within the scope of today's final rule are generally small compared 
with the industry as a whole. Because EPA does not expect many 
facilities to be affected and does not expect the costs of the rule to 
create a barrier to entry or to create a significant change in 
productivity, EPA does not expect today's final rule to cause 
significant changes in industry productivity, competition, prices, 
output, foreign trade, or employment. The baseline revenues and the 
modest costs for each facility subject to today's rule are sufficient 
to preclude any barriers to entry.
---------------------------------------------------------------------------

    \105\ Three coal facilities would have annualized costs between 
3.3 percent and 5.2 percent of revenues. Sixelectric generators 
would have annualized costs greater than 1 but less than 3 percent 
of revenues.
---------------------------------------------------------------------------

    EPA therefore expects the final rule to be economically practicable 
for the industries as a whole. The rule is not expected to result in 
any significant impact on generation and distribution of electricity, 
because most of the electric generation facilities are expected to meet 
most of the rule's requirements in the baseline. Only a small 
percentage of the total number of facilities in each of the 
manufacturing sectors will be affected by the final rule. EPA therefore 
concludes that this rule will not result in a significant impact on 
industries or the economy.

D. Cost and Economic Impacts of Other Alternatives

    In addition to today's final rule, EPA estimated the costs and 
economic impacts of several alternative regulatory options. The first 
alternative option that EPA considered would be to apply the Track I 
requirements of today's final rule only to facilities withdrawing from

[[Page 65325]]

estuaries, tidal rivers, Great Lakes, and oceans. Under this option, 
the definition and number of new facilities subject to the rule would 
not change, but some facilities would incur less stringent compliance 
requirements. EPA estimates that the total annualized compliance costs 
for this alternative would be $36.3 million. The second alternative 
option considered by EPA would impose more stringent compliance 
requirements on the electric generating segment of the industry. It is 
based wholly or in part on a zero intake-flow (or nearly zero, 
extremely low-flow) requirement, commensurate with levels achievable 
through the use of dry cooling systems. New manufacturing facilities 
would not be subject to these stricter requirements but would have to 
comply with the requirements of today's final rule. EPA estimated costs 
for this alternative by assuming that the dry cooling standard would 
apply to electric generators on all waters of the U.S. The costs of 
this option are estimated to be $490.7 million per year.
    The first alternative regulatory option considered by EPA would 
have lower total costs than today's final rule. A regulatory framework 
based on dry cooling towers for some or all electric generators is the 
most expensive option. Compared with today's final rule, this option 
would impose an additional cost of $443 million, or $6,910 per megawatt 
of generating capacity, on the electric generating sector.

IX. Potential Benefits Associated With Reducing Impingement and 
Entrainment

    To provide an indication of the potential benefits of adopting best 
technology for cooling water intake structures, this section presents 
information from existing sources on impingement and entrainment losses 
associated with cooling water intake structures and the economic 
benefits associated with reducing these losses. Benefits of the 
regulation come from preventing situations such as those discussed 
below. Examples are drawn from existing sources because the information 
needed to quantify and value potential reductions in losses at new 
facilities is not available. The reason the information is unavailable 
is that the exact location of future facilities is unknown. Also 
unknown are details of cooling water intake structure characteristics, 
such as the exact configuration of intake, the species present near an 
intake, the life stages of the species at the time they are present, 
and the susceptibility of these species to impingement and entrainment. 
For some facilities listed in the new NEWGen database, there is some 
general information about facility locations, but details of intake 
characteristics and the ecology of the surrounding waterbody are 
unavailable. For facilities projected into the future, there is no 
locational information at all. Site-specific information is critical in 
predicting benefits, because studies at existing facilities demonstrate 
that benefits are highly variable across facilities and locations. Even 
similar facilities on the same waterbody can have very different 
benefits depending on the aquatic ecosystem in the vicinity of the 
facility and intake-specific characteristics such as location, design, 
construction, and capacity.
    In general, the probability of impingement and entrainment at 
future cooling water intake structure locations depends on intake and 
species characteristics that influence the intensity, time, and spatial 
extent of interactions of aquatic organisms with a facility's cooling 
water intake structure and the physical, chemical, and biological 
characteristics of the source waterbody. Flows commensurate with 
closed-cycle cooling systems (which are one part of the basis for best 
technology available) withdraw water from a natural waterbody, 
circulate the water through the condensers, and then send it to a 
cooling tower or cooling pond before recirculating it back through the 
condensers. Because cooling water is recirculated, closed-cycle systems 
generally reduce the water flow from 72 percent to 98 percent, thereby 
using only 2 percent to 28 percent of the water used by once-through 
systems. It is generally assumed that this would result in a comparable 
reduction in impingement mortality and entrainment.
    Fish species with free-floating, early life stages are highly 
susceptible to cooling water intake structure impacts. Such planktonic 
organisms lack the swimming ability to avoid being drawn into intake 
flows. Species that spawn in nearshore areas, have planktonic eggs and 
larvae, and are small as adults experience even greater impacts, 
because both new recruits and reproducing adults are affected (e.g., 
bay anchovy in estuaries and oceans). In general, higher impingement 
and entrainment are observed in estuaries and near coastal waters 
because of the presence of spawning and nursery areas.
    The final regulatory framework also recognizes that for any given 
species and cooling water intake structure location, the proportion of 
the sourcewater flow supplied to the cooling water intake structure is 
a major factor affecting the potential for impingement and entrainment. 
In general, if the quantity of water withdrawn is large relative to the 
flow of the source waterbody, water withdrawal would tend to 
concentrate organisms and increase numbers impinged and entrained. 
Thus, the final flow requirements seek to reduce impingement and 
entrainment by limiting the proportion of the waterbody flow that can 
be withdrawn.
    The following five examples from studies at existing facilities 
offer some indication of the relative magnitude of monetary damages 
associated with cooling water intake structures. These examples exhibit 
the magnitude of impingement and entrainment, on a per facility basis, 
that could be significantly reduced in the future for similar steam 
electric facilities under this final rule. In the following discussion, 
the potential benefits of lowering intake flows to a level commensurate 
with those of a closed-cycle recirculating cooling water system (for 
the projected 90 percent of facilities not already planning to use such 
systems) is illustrated by comparisons of once-through and closed-cycle 
cooling systems (e.g., the Brayton Point and Hudson River facilities). 
The potential benefits of additional requirements defined by regional 
permit directors are demonstrated by operational changes implemented to 
reduce impingement and entrainment (e.g., the Pittsburg and Contra 
Costa facilities). The Ludington example demonstrates how impingement 
and entrainment losses of forage species can lead to reductions in 
economically valuable species. Finally, the potential benefits of 
implementing additional design and construction technologies to 
increase survival of organisms impinged or entrained is illustrated by 
the application of modified intake screens and fish return systems 
(e.g., the Salem Nuclear Generating Station).
    The first example of the potential benefits of minimizing intake 
flow and associated impingement and entrainment is provided by data for 
the Brayton Point facility, located on Mt. Hope Bay in Massachusetts. 
In July 1984, the operation of Unit 4 was changed from closed-cycle 
cooling and piggyback operation to once-through cooling. Although 
conversion to once-through cooling increased intake flow by about 41 
percent, the facility requested the change because of electrical 
problems associated with salt contamination from Unit 4's closed-cycle 
cooling canal equipped with spray modules. The lower losses expected 
under closed-cycle operation can be estimated by comparing losses 
before

[[Page 65326]]

and after this modification. Based on reports providing predicted \106\ 
or actual \107\ losses after the Unit 4 modification, EPA estimates 
that the average annual reduction in entrainment losses of adult 
equivalents of catchable fish resulting from closed-cycle operation of 
a single unit at Brayton Point (reducing the flow of that unit from 
1,045 MGD to 703 MGD) would range from 207,254 Atlantic menhaden 
(Brevoortia tyrannus) \1\ and 155,139 winter flounder (Pleuronectes 
americanus) \2\ to 20,198 tautog (Tautoga onitis) \2\ and 7,250 
weakfish (Cynoscion regalis) \2\ per year. Assuming a proportional 
change in harvest, the lower losses associated with a closed-cycle 
system would be expected to result in an increase of 330,000 to 2 
million pounds per year in commercial landings and 42,000 to 128,000 
pounds per year in recreational landings.
---------------------------------------------------------------------------

    \106\ Marine Research, Inc. and New England Power Company. 1981. 
Final Environmental Impact Report and Sections 316(a) and 316(b) 
Demonstrations Made in Connection with the Proposed conversion of 
Generating Unit No. 4 from Closed-Cycle to Once-through Cooling.
    \107\ New England Power Company and Marine Research Inc. 1995. 
Brayton Point Station Annual Biological and Hydrological Report, 
January-December 1994.
---------------------------------------------------------------------------

    The second example of the potential benefits of low intake flow is 
provided by an analysis of impingement and entrainment losses at five 
Hudson River power plants. Estimated fishery losses under once-through 
compared with closed-cycle cooling indicate that an average reduction 
in intake flow of about 95 percent at the three facilities responsible 
for the greatest impacts would result in a 30 to 80 percent reduction 
in fish losses, depending on the species involved.\108\ An economic 
analysis estimated monetary damages under once-through cooling based on 
the assumption that annual percentage reductions in year-classes of 
fish result in proportional reductions in fish stocks and harvest 
rates.\109\ A low estimate of damages was based on losses at all five 
facilities, and a high estimate was based on losses at the three 
facilities that account for most of the impacts. Damage estimates under 
once-through cooling ranged from about $1.3 million to $6.1 million 
annually in 1999 dollars. Over the next 20 years, EPA projects that 9 
out of 83 new power plants would be built without recirculating systems 
in the absence of this rule. Most of the costs projected for the final 
rule are associated with installing recirculating systems as a result 
of this final rule.
---------------------------------------------------------------------------

    \108\ Boreman, J. And C.P. Goodyear. 1988. Estimates of 
entrainment mortality for striped bass and other fish species 
inhabiting the Hudson River Estuary. American Fisheries Society 
Monograph 4:152-160.
    \109\ Rowe, R.D., C.M. Lang, L.G. Chestnut, D.A. Latimer, D.A. 
Rae, S.M. Bernow, and D.E. White. 1995. The New York Electricity 
Externality Study, Volume 1. Empire State Electric Energy Research 
Corporation.
---------------------------------------------------------------------------

    The third example demonstrates how impingement and entrainment 
losses of forage species can lead to reductions in economically valued 
species. A random utility model (RUM) was used to estimate fishery 
impacts of impingement and entrainment by the Ludington Pumped Storage 
plant on Lake Michigan.\110\ \111\ This method estimates changes in 
demand for beneficial use of the waterbody as a function of changes in 
catch rates. The Ludington facility is responsible for the loss of 
about 1 to 3 percent of the total Lake Michigan production of alewife, 
a forage species that supports valuable trout and salmon fisheries. It 
was estimated that losses of alewife result in a loss of nearly 6 
percent of the angler catch of trout and salmon each year. On the basis 
of RUM analysis, the study estimated that if Ludington operations 
ceased, catch rates of trout and salmon species would increase by 3.3 
to 13.7 percent annually, amounting to an estimated recreational 
angling benefit of $0.95 million per year (in 1999 dollars) for these 
species alone.
---------------------------------------------------------------------------

    \110\ Jones, C.A., and Y.D. Sung. 1993. Valuation of 
Environmental Quality at Michigan Recreational Fishing Sites: 
Methodological Issues and Policy Applications. Prepared under EPA 
Contract No. CR-816247 for the U.S. EPA, Washington, DC.
    \111\ Pumped storage facilities do not use cooling water and are 
therefore not subject to this final rule. However, the concept of 
economic valuation of losses in forage species is transferable to 
other types of stressors, including cooling water intake structures.
---------------------------------------------------------------------------

    The fourth example indicates the potential benefits of technologies 
that have been required in past section 316(b). Two plants in the San 
Francisco Bay/Delta, Pittsburg, and Contra Costa in California have 
made changes to their intake operations to reduce impingement and 
entrainment of striped bass Morone saxatilis). These changes include 
flow reduction through variable speed pumps. These operational changes 
have also reduced incidental take of several threatened or endangered 
fish species, including the delta smelt (Hypomesus transpacificus) and 
several runs of chinook salmon (Oncorhynchus tshawytscha) and steelhead 
trout (Oncorhynchus mykiss). According to technical reports by the 
facilities, use of these technologies reduced striped bass losses by 78 
to 94 percent, representing an increase in striped bass recreational 
landings averaging about 100,000 fish each year.\112\ \113\ \114\ \115\ 
\116\ A local study estimated that the consumer surplus of an 
additional striped bass caught by a recreational angler is $8.87 to 
$13.77.\117\ This implies a benefit to the recreational fishery, from 
reduced impingement and entrainment of striped bass alone, in the range 
of $887,000 to $1,377,000 annually. The monetary benefit of reduced 
impingement and entrainment of threatened or endangered species might 
be substantially greater.
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    \112\ Pacific Gas & Electric Company. 1996. Best Technology 
Available: 1995 Technical Report for the Contra Costa and Pittsburg 
Power Plants. Prepared for Central Valley and San Francisco Bay 
Regional Water Quality Control Boards.
    \113\ Pacific Gas & Electric Company. 1997. Best Technology 
Available: 1996 Technical Report for the Contra Costa and Pittsburg 
Power Plants. Prepared for Central Valley and San Francisco Bay 
Regional Water Quality Control Boards.
    \114\ Pacific Gas & Electric Company. 1998. Best Technology 
Available: 1997 Technical Report for the Contra Costa and Pittsburg 
Power Plants. Prepared for Central Valley and San Francisco Bay 
Regional Water Quality Control Boards.
    \115\ Pacific Gas & Electric Company. 1999. Best Technology 
Available: 1998 Technical Report for the Contra Costa and Pittsburg 
Power Plants. Prepared for Central Valley and San Francisco Bay 
Regional Water Quality Control Boards.
    \116\ South Energy California. 2000. Best Technology Available: 
1999 Technical Report for the Contra Costa and Pittsburg Power 
Plants. Prepared for Central Valley and San Francisco Bay Regional 
Water Quality Control Board.
    \117\ Huppert, D.H. 1989. Measuring the value of fish to 
anglers: application to central California anadromous species. 
Marine Resource Economics 6:89-107.
---------------------------------------------------------------------------

    The final example indicates the potential benefits of technologies 
that can be applied to reduce impingement. In its 1999 permit renewal 
application, the Salem Nuclear Generating Station in the Delaware 
Estuary evaluated the potential benefits of dual-flow, fine mesh 
traveling screens designed to achieve an approach velocity of 0.5    
ft/s.\118\ Based on the facility's projections of net increases in 
recreational fisheries that would occur with this technology, EPA 
estimates that angler consumer surplus would increase by $531,247, to 
$1,780,104 annually in 1999 dollars. Assuming that nonuse benefits are 
at least 50 percent of recreational use benefits, nonuse benefits 
associated with the screens might be expected to amount to up to 
$890,052 per year.
---------------------------------------------------------------------------

    \118\ Public Service Electric and Gas Company. 1999. Appendix F, 
1999 Permit Renewal Application, NJPDES Permit No. NJ0005622.
---------------------------------------------------------------------------

    A more detailed discussion of cooling water intake structure 
impacts and potential benefits can be found Chapter 11 of the Economic 
Analysis document.

[[Page 65327]]

X. Regulatory Requirements

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this rule under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2040-0241. The information collection 
requirements relate to new electric generation and manufacturing 
facilities collecting information for baseline biological 
characterization, monitoring of impingement and entrainment, preparing 
comprehensive demonstrations, verifying compliance, and preparing 
yearly reports.
    Since the proposal, EPA used updated sources and revised the number 
of facilities that will be subject to this rule (See Section IV.A.1 of 
this preamble). These new data sources resulted in an increase in the 
number of facilities projected as subject to this rule from 98 in the 
proposed rule analysis to 121 in the final rule. As a result, the cost 
and burden estimates for today's final rule have increased somewhat.
    In the final rule, EPA has revised the requirements of the source 
water baseline biological characterization to allow the use of existing 
information, which lowers the cost incurred by new facilities. However, 
today's rule includes a Comprehensive Demonstration requirement for 
those facilities choosing Track II. Cost and burden estimates for 
today's final rule were revised accordingly.
    Burden is defined as the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    The total burden of the information collection requirements 
associated with today's rule is estimated at 121,127 hours. The 
corresponding estimates of cost other than labor (labor and non-labor 
costs are included in the total cost of the rule discussed in Section 
VIII of this preamble) is $5.3 million for 18 facilities and 44 States 
and one Territory for the first three years after promulgation of the 
rule. Non-labor costs include activities such as capital costs for 
remote monitoring devices, laboratory services, photocopying, and the 
purchase of supplies. The burden and costs are for the information 
collection, reporting, and recordkeeping requirements for the three-
year period beginning with the effective date of today's rule. 
Additional information collection requirements will occur after this 
initial three-year period as new facilities continue to be permitted 
and such requirements will be counted in a subsequent information 
collection request. EPA does not consider the specific data that would 
be collected under this final rule to be confidential business 
information. However, if a respondent does consider this information to 
be confidential, the respondent may request that such information be 
treated as confidential. All confidential data will be handled in 
accordance with 40 CFR 122.7, 40 CFR part 2, and EPA's Security Manual 
Part III, Chapter 9, dated August 9, 1976.
    Compliance with the applicable information collection requirements 
imposed under this final rule (see Secs. 122.21(r), 125.86, 125.87, 
125.88, and 125.89) is mandatory. Before new facilities can begin 
operation, they would be required first to perform several data-
gathering activities as part of the permit application process. Today's 
rule would require several distinct types of information collection as 
part of the NPDES application. In general, the information would be 
used to identify which of the requirements in today's final rule 
applies to the new facility, how the new facility would meet those 
requirements, and whether the new facility's cooling water intake 
structure reflects the best technology available for minimizing 
environmental impact. Specific data requirements of today's rule 
follow:
     Intake structure data, consisting of intake structure 
design and a facility water balance diagram, to evaluate the potential 
for impingement and entrainment of aquatic organisms; and
     Information on design and construction technologies 
implemented to ensure compliance with the applicable requirements set 
forth in today's rule.
    In addition to the information requirements of the permit 
application, NPDES permits normally specify monitoring and reporting 
requirements to be met by the permitted entity. New facilities that 
fall within the scope of this rule would be required to perform 
biological monitoring of impingement and entrainment, monitoring of the 
screen or through-screen technology velocity, and visual inspections of 
the cooling water intake structure and any additional technologies. 
Additional ambient water quality monitoring may also be required of 
facilities depending on the specifications of their permits. The 
facility would be expected to analyze the results from its monitoring 
efforts and provide these results in an annual status report to the 
permitting authority. Finally, facilities would be required to maintain 
records of all submitted documents, supporting materials, and 
monitoring results for at least three years. (Note that the director 
may require that records be kept for a longer period to coincide with 
the life of the NPDES permit.)
    All impacted facilities would carry out the specific activities 
necessary to fulfill the general information collection requirements. 
The estimated burden includes developing a water balance diagram that 
can be used to identify the proportion of intake water used for

[[Page 65328]]

cooling, make-up, and process water. Some of the facilities (those 
choosing Track II) would gather performance data to determine the 
effectiveness of alternative technologies that reduce impingement and 
entrainment to levels commensurate with reductions achieved through use 
of recirculating wet cooling towers and document the basis of their 
determination in a demonstration study. The burden estimates include 
sampling, assessing the source waterbody, estimating the magnitude of 
impingement and entrainment, and reporting results in a comprehensive 
demonstration for certain facilities. The burden also includes 
conducting a pilot study to show that alternative technologies to be 
installed are equivalent in performance to the fast track technologies, 
if data are not publicly available for assessing the performance of 
certain technologies. Some of the facilities would need to perform 
additional activities related to velocity and flow reduction 
requirements. The burden estimates also incorporate the cost of 
preparing a narrative description of the design, structure, equipment, 
and operational features required to meet velocity and flow reductions.
    In addition to the activities mentioned above, some facilities 
would need to prepare and submit a plan describing design 
characteristics of additional technologies to be installed that will 
reduce impingement and entrainment and maximize survival of aquatic 
organisms. The estimates for some facilities also incorporate the cost 
of sampling, analyzing, and reporting the type and number of impinged 
and entrained organisms; velocity monitoring; and biweekly inspections 
of installed technologies.
    Exhibit 5 presents a summary of the maximum burden estimates for a 
facility to prepare a permit application and monitor and report on 
cooling water intake structure operations as required by this rule.

   Exhibit 5.--Maximum Burden and Costs per Facility for NPDES Permit Application and Monitoring and Reporting
                                                   Activities
----------------------------------------------------------------------------------------------------------------
                                                                                                   Other direct
                           Activities                              Burden  (hr)     Labor cost     costs  (lump
                                                                                                     sum) \a\
----------------------------------------------------------------------------------------------------------------
Start-up activities.............................................              43          $1,585             $50
Permit application activities...................................             146           4,598             500
Source waterbody flow information...............................             104           3,010             100
Source water baseline biological characterization data..........             265           8,975             750
CWIS flow reduction requirements (Track I)......................             108           3,261             400
CWIS velocity requirements (Track I)............................             138           4,428           1,000
Design and construction technology plan (Track I)...............              85           2,840              50
Comprehensive demonstration study plan (Track II) \b\...........             383          13,563           1,000
Source water baseline biological characterization study (Track             5,178         274,845          13,000
 II)............................................................
Evaluation of potential CWIS effects (Track II).................           2,577         135,141             500
                                                                 -----------------------------------------------
    Subtotal....................................................           9,027         452,246          17,350
----------------------------------------------------------------------------------------------------------------
              Maximum Burden and Costs per Facility for Annual Monitoring and Reporting Activities
----------------------------------------------------------------------------------------------------------------
Biological monitoring (impingement).............................             388          20,240             650
Biological monitoring (entrainment).............................             776          41,035           4,000
Velocity monitoring.............................................             163           4,993             100
Visual inspection of installed technology and remote monitoring              253           8,159             100
 equipment \c\..................................................
Verification monitoring (Track II) \d\..........................             122           5,146             500
Yearly Status report activities.................................             348          13,071             750
                                                                 -----------------------------------------------
    Subtotal....................................................           2,050          92,644           6,100
----------------------------------------------------------------------------------------------------------------
\a\ Cost of supplies, filing cabinets, photocopying, boat renting, etc.
\b\ The Comprehensive Demonstration Study also has contracted service costs associated with it.
\c\ Remote monitoring equipment also has capital and O&M costs associated with it
\d\ The verification monitoring also has contracted services associated with it.

    EPA believes that all 44 States and one territory with NPDES 
permitting authority will undergo start-up activities in preparation 
for administering the provisions of the new facility rule. As part of 
these start-up activities, States and Territories are expected to train 
junior technical staff to review materials submitted by facilities, and 
then use these materials to evaluate compliance with the specific 
conditions of each facility's NPDES permit.
    Each State's/Territory's actual burden associated with reviewing 
submitted materials, writing permits, and tracking compliance depends 
on the number of new in-scope facilities that will be built in the 
State/Territory during the ICR approval period. EPA expects that State 
and Territory technical and clerical staff will spend time gathering, 
preparing, and submitting the various documents. EPA's burden estimates 
reflect the general staffing and level of expertise that is typical in 
States/Territories that administer the NPDES permitting program. EPA 
considered the time and qualifications necessary to complete various 
tasks such as reviewing submitted documents and supporting materials, 
verifying data sources, planning responses, determining specific permit 
requirements, writing the actual permit, and conferring with facilities 
and the interested public. Exhibit 6 provides a summary of the burden 
estimates for States/Territories performing various activities 
associated with the final rule.

[[Page 65329]]



                     Exhibit 6.--Estimating State/Territory Burden and Costs for Activities
----------------------------------------------------------------------------------------------------------------
                                                                                                   Other direct
                           Activities                              Burden (hrs)     Labor cost         cost
----------------------------------------------------------------------------------------------------------------
Start-up activities (per state/territory).......................             100          $3,514             $50
State/territory permit issuance activities (per facility).......             723          29,128             350
Annual state/territory activities (per facility)................              50           1,670              50
----------------------------------------------------------------------------------------------------------------

    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information, unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. EPA is 
amending the table in 40 CFR part 9 of currently approved ICR control 
numbers issued by OMB for various regulations to list the information 
requirements contained in this final rule.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
might result in expenditures to State, local, and Tribal governments, 
in the aggregate, or to the private sector, of $100 million or more in 
any one year. Before promulgating an EPA rule for which a written 
statement is needed, section 205 of UMRA generally requires EPA to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows EPA to adopt an alternative other 
than the least costly, most cost-effective, or least burdensome 
alternative if the Administrator publishes with the final rule an 
explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that might significantly or 
uniquely affect small governments, including Tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with regulatory 
requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that might result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any one year. Total annualized compliance and implementation 
costs are estimated to be $47.9 million. Of the total costs, the 
private sector accounts for $43.8 million and the government sector 
(includes direct compliance costs for facilities owned by government 
entities) accounts for $4.1 million. EPA calculated annualized costs by 
estimating initial and annual expenditures of facilities and regulatory 
authorities over the 30-year period (2001-2030), calculating the 
present value of that stream of expenditures using a 7 percent discount 
rate. EPA estimates that the highest undiscounted cost incurred by the 
private sector in any one year is approximately $71.2 million and the 
highest cost incurred by government sector in any one year is 
approximately $19.0 million. Thus, today's rule is not subject to the 
requirements of sections 202 and 205 of UMRA.
    EPA has determined that this final rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. Thus, today's final rule is not subject to the 
requirements of section 203 of UMRA. A municipality that owns or 
operates a new electric generation facility is the primary category of 
small government operations that might be affected by this rule. 
Existing data indicate that only four government owned facilities will 
be constructed in the next twenty years. All four are expected to be 
owned by large governments. Of these, two are expected to be State 
owned, one is projected to be owned by a municipality and one by a 
municipality market. In addition, to minimize cost, this final rule 
excludes facilities that take in less than two (2) million gallons per 
day. Details and methodologies used for these estimates are included in 
the Economic Analysis document, which is in the docket.

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

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    Today's rule is intended to minimize the adverse environmental 
impact from cooling water intake structures and regulates new 
facilities that use cooling water withdrawn directly from waters of the 
U.S. The primary impact would be on new steam electric generating 
facilities (SIC 4911); however, a number of new facilities in other 
industries likely will also be regulated, including, but not limited 
to, paper and allied products (primary SIC 26), chemical and allied 
products (primary SIC 28), petroleum and coal products (primary SIC 
29), and primary metals (primary SIC 33).
    For the purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business according to 
the Small Business Administration (SBA) size standards; (2) A small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is a not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field. After considering the economic impacts of 
today's rule on small entities, I certify that this action will not 
have a significant economic impact on a substantial number of small 
entities. This rule is expected to regulate only a small number of 
facilities owned by small entities, representing a very small 
percentage of all facilities owned by small entities in their 
respective industries. EPA has estimated that 11 new facilities owned 
by small entities would be regulated by this final rule. Of

[[Page 65330]]

the 11 new facilities owned by small entities, 8 are steam electric 
generating facilities and 3 are manufacturing facilities. This rule 
will not regulate any small governments or small organizations.
1. Electric Generation Sector
    EPA has described the process by which prospective new steam 
electricity generating facilities subject to today's rule were 
identified in Section IV.A of this preamble and in Chapter 5 of the 
Economic Analysis document. As described in Chapter 8 of that document, 
EPA then identified those facilities subject to the rule whose owner 
would be defined as a small business. The analysis used the definitions 
of small businesses established by the Small Business Administration 
(SBA). (The SBA defines small businesses based on Standard Industrial 
Classification (SIC) codes and size standards expressed by the number 
of employees, annual receipts, or electric output.) The SBA defines a 
small steam electric generator as a firm whose facilities generate 4 
million megawatt-hours output or less. EPA has determined that 8 
facilities owned by small businesses in the steam electric generating 
industry are likely to be regulated by today's rule.
    The estimated annualized compliance costs that facilities owned by 
small entities would likely incur represent between 0.11 and 0.44 
percent of estimated facility annual sales revenue. All but one 
electric generating facilities owned by a small firm incur costs less 
than 0.3 percent of revenues. The results of this screening analysis 
indicated very low impacts at the facility level. Consequently, the 
costs to the parent small entity would be even lower.
    The absolute number of small entities potentially subject to this 
rule is low. This is not unexpected since the total number of 
facilities subject to this rule is also low, even though the electric 
power industry is currently experiencing a rapid expansion and 
transition due to deregulation and new Clean Air Act requirements for 
emissions controls, and a large number of generating plants are under 
construction or planned for the early years of the final rule. First, 
there is a trend toward construction of combined-cycle technologies 
using natural gas, which use substantially less cooling water than 
other technologies. Second, there has been a decline in the use of 
surface water as the source of cooling water. An analysis of new 
combined-cycle facilities, identified from the NEWGen database shows a 
trend toward less use of surface cooling water. The analysis showed 
that 66 percent of the analyzed facilities use alternative sources of 
cooling water (e.g., grey water, ground water, municipal water, or dry 
cooling). EPA believes this reflects the increased competition for 
water, an heightened awareness of the need for water conservation, and 
increased local opposition to the use of surface water for power 
generation. Taken together, the trend toward combined-cycle generating 
technologies, which have small cooling water requirements per unit of 
output, and the movement away from the use of surface cooling water 
result in a low projected number of regulated facilities, despite the 
expected expansion in new generating capacity.
2. Manufacturing Sector
    Chapter 5 of the Economic Analysis document shows that 38 new 
manufacturing facilities are expected to incur compliance costs under 
today's rule. Since EPA's estimate of new manufacturing facilities is 
based on industry growth forecasts and not on specific planned 
facilities, actual parent firm information was not available. EPA, 
therefore, developed profiles of representative new facilities based on 
the characteristics of existing facilities identified in EPA's Industry 
Survey of existing facilities.
    Using SBA size standards for the firm's SIC Code, only 3 of the 38 
new manufacturing facilities are projected to be owned by a small 
entity. One of the 3 facilities is in the chemicals sector and two are 
in the metals sector (in both sectors, a small entity is defined as a 
firm with fewer than 1,000 employees). EPA compared annualized costs to 
annual sales revenue to assess impacts for manufacturing firms. The 
test was applied at the facility rather than the firm level, which 
provides a conservative estimate of the impacts because the ratio of 
costs to revenues were relatively lower at the firm level than at the 
individual facility level. The impact analysis showed a negligible 
impact on small entities: very low effects on facility sales revenue 
(ranging from 0.04 to 0.08 percent).
    EPA has conducted extensive outreach to industry associations and 
organizations representing small government jurisdictions to identify 
small-entity manufacturing facilities. Based on the outreach effort and 
a review of the relevant industry trade literature, EPA concludes that, 
although the exact number of facilities owned by small entities that 
would be subject to the rule is difficult to quantify, it is evident 
that for the foreseeable future few, if any, small entities would be 
affected. EPA estimates that only 2.9 percent of future facilities in 
the next twenty years owned by small entities will use cooling water at 
levels that would bring them within the scope of this regulation.
    The small number of small entities subject to this rule in the 
manufacturing sector is not surprising because the facilities likely to 
be subject to the rule are large industrial facilities that are not 
generally owned by small entities. There are many reasons for the 
limited projected number of in-scope new facilities owned by small 
entities. Depending on which industry sector is considered, these 
include industry downsizing; expansion of capacity at existing 
facilities as a means of meeting increased demand; mergers and 
acquisitions that reduce the overall number of firms; and addition of a 
significant number of facilities in at least one industry sector as 
part of a recently completed expansion cycle so that additional new 
facilities are not expected for the foreseeable future. The segments of 
the industries that are the primary users of cooling water are mostly 
large, capital intensive enterprises with few, if any, small businesses 
within their ranks.
    A final reason why this rule does not have a significant economic 
impact on a substantial number of small entities is that EPA has 
established a two (2) MGD flow as the level below which facilities 
would not be subject to the requirements of the rule. This minimum flow 
level exempts many facilities using small amounts of water, including 
facilities owned by small entities, while covering approximately 99 
percent of the total cooling water withdrawn from the waters of the 
U.S. Therefore, EPA concludes that there will be a negligible increase 
in the number of small facilities in these manufacturing industries 
subject to today's final rule. Exhibit 7 summarizes the results of 
small entity analysis.

[[Page 65331]]



               Exhibit 7.--Summary of RFA/SBREFA Analysis
------------------------------------------------------------------------
                                    Number of
                                    facilities       Annual compliance
        Type of facility         owned by  small    costs/annual sales
                                     entities             revenue
------------------------------------------------------------------------
Steam electric generating                      8  0.11%-0.44%
 facilities.
Manufacturing facilities.......                3  0.04%-0.08%
                                ----------------------------------------
    Total......................               11  0.04% to 0.44%
------------------------------------------------------------------------

    Although this rule will not have a significant economic impact on a 
substantial number of entities, EPA nonetheless has tried to reduce the 
impact of this rule on small entities. In particular, EPA does not 
require that a facility with intake flows equal to or greater than 2 
MGD and less than 10 MGD reduce its intake flow to a level commensurate 
with use of a closed-cycle recirculating cooling system. Instead, these 
facilities are required to use the less costly design and construction 
technologies for minimizing entrainment at all locations. See 
125.84(c)(4). EPA believes that the requirements of Sec. 125.84(c) are 
an economically practicable way for these facilities to reduce 
impingement mortality and entrainment. EPA consulted many times with 
the Small Business Administration on matters associated with this rule. 
Upon invitation, EPA met several times with a mix of small businesses 
interested in this rule.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications.'' ``Policies that have 
federalism implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Rather, this final rule would 
result in minimal administrative costs on States that have an 
authorized NPDES program. The annualized state implementation cost over 
the 30-year analysis period (2001 to 2030) is approximately $240,000 
total for all States per year. Also, based on meetings and subsequent 
discussions with local government representatives from municipal 
utilities, EPA believes that the final new facility rule may affect, at 
most, only two large municipalities that own steam electric generating 
facilities. The annual impacts on these facilities is not expected to 
exceed 1,304 burden hours and $36,106 (non-labor costs) per facility.
    The national cooling water intake structure requirements would be 
implemented through permits issued under the NPDES program. Forty-four 
States and the Virgin Islands are currently authorized pursuant to 
section 402(b) of the CWA to implement the NPDES program. In States not 
authorized to implement the NPDES program, EPA issues NPDES permits. 
Under the CWA, States are not required to become authorized to 
administer the NPDES program. Rather, such authorization is available 
to States if they operate their programs in a manner consistent with 
section 402(b) and applicable regulations. Generally, these provisions 
require that State NPDES programs include requirements that are as 
stringent as Federal program requirements. States retain the ability to 
implement requirements that are broader in scope or more stringent than 
Federal requirements. (See section 510 of the CWA)
    Today's final rule would not have substantial direct effects on 
States or on local governments because it would not change how EPA and 
the States and local governments interact or their respective authority 
or responsibilities for implementing the NPDES program. Today's final 
rule establishes national requirements for new facilities with cooling 
water intake structures. NPDES-authorized States that currently do not 
comply with the final regulations might need to amend their regulations 
or statutes to ensure that their NPDES programs are consistent with 
Federal section 316(b) requirements. See 40 CFR 123.62(e). For purposes 
of this final rule, the relationship and distribution of power and 
responsibilities between the Federal government and the States and 
local governments are established under the CWA (e.g., sections 402(b) 
and 510); nothing in this final rule would alter that. Thus, Executive 
Order 13132 does not apply to this rule.
    Although section 6 of Executive Order 13132 does not apply to this 
rule, EPA did consult with State governments and representatives of 
local governments in developing the rule. During the development of the 
section 316(b) rule for new facilities, EPA conducted several outreach 
activities through which State and local officials were informed about 
the proposed rule and they provided information and comments to the 
Agency.
    EPA also held two public meetings in the summer of 1998 to discuss 
issues related to the section 316(b) rulemaking effort. Representatives 
from New York and Maryland attended the meetings and provided input to 
the Agency. The Agency also contacted Pennsylvania and Virginia to 
exchange information on this issue. In addition, EPA Regions 1, 3, 4, 
and 9 served as conduits for transmittal of section 316(b) information 
between the Agency and several States. In the spirit of Executive Order 
13132, and consistent with EPA policy to promote communications between 
EPA and State and local governments, EPA specifically solicited comment 
on the proposed rule from State and local officials. More recently, EPA 
met with industry, environmental, and State and Federal government 
representatives, during May, June, and July 2001 to discuss regulatory 
alternatives for the new facility rule. The States that EPA consulted 
with or received public comment from, in general, supported the 
technology-based rule which focused on reducing the impingement 
mortality and entrainment resulting from cooling water intake 
structures. In particular, many States endorsed the 2 MGD threshold, 
capacity reduction, and proportional flow restrictions. A few States 
wanted more flexibility, whereas others wanted more stringent 
technology-based performance

[[Page 65332]]

standards. EPA believes that it has achieved a balance between these 
two opposite concerns in establishing the two-track approach.

F. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each Federal agency must conduct its programs, 
policies, and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.
    Today's final rule would require that the location, design, 
construction, and capacity of cooling water intake structures at new 
facilities reflect the best technology available for minimizing adverse 
environmental impact. For several reasons, EPA does not expect that 
this final rule would have an exclusionary effect, deny persons the 
benefits of the NPDES program, or subject persons to discrimination 
because of their race, color, or national origin. The final rule 
applies only to new facilities with cooling water intake structures 
that withdraw waters of the U.S. As discussed previously, EPA 
anticipates that this final rule would not affect a large number of new 
facilities; therefore, any impacts of the final rule would be limited. 
The final rule does include location criteria that would affect siting 
decisions made by new facilities, these criteria are intended to 
prevent deterioration of our nation's aquatic resources. EPA expects 
that this final rule would preserve the health of aquatic ecosystems 
located in reasonable proximity to new cooling water intake structures 
and that all populations, including minority and low-income 
populations, would benefit from such improved environmental conditions. 
In addition, because the final rule would help prevent decreases in 
populations of fish and other aquatic species, it is likely to help 
maintain the welfare of subsistence and other low-income fishermen or 
minority low-income populations.

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

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe might have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health and 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This final 
rule is not an economically significant rule as defined under Executive 
Order 12866 and does not concern an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate effect on 
children. Therefore, it is not subject to Executive Order 13045.

H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Given the available data on new facilities and the applicability 
thresholds in the final rule, EPA estimates that no new facilities 
subject to this final rule will be owned by tribal governments. This 
rule does not affect tribes in any way in the foreseeable future. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rule.

I. Executive Order 13158: Marine Protected Areas

    Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to 
``expeditiously propose new science-based regulations, as necessary, to 
ensure appropriate levels of protection for the marine environment.'' 
EPA may take action to enhance or expand protection of existing marine 
protected areas and to establish or recommend, as appropriate, new 
marine protected areas. The purpose of the Executive Order is to 
protect the significant natural and cultural resources within the 
marine environment, which means ``those areas of coastal and ocean 
waters, the Great Lakes and their connecting waters, and submerged 
lands thereunder, over which the United States exercises jurisdiction, 
consistent with international law.''
    Today's final rule implements section 316(b) of the Clean Water Act 
(CWA) for new facilities that use water withdrawn from rivers, streams, 
lakes, reservoirs, estuaries, oceans or other waters of the United 
States (U.S.) for cooling water purposes. The final rule establishes 
national technology-based performance requirements applicable to the 
location, design, construction, and capacity of cooling water intake 
structures at new facilities. The national requirements establish the 
best technology available for minimizing adverse environmental impact 
associated with the use of these structures. It also requires the 
permit applicant to select and implement design and construction 
technologies to minimize impingement mortality and entrainment.
    EPA expects that this final regulation will reduce impingement and 
entrainment at new facilities. The rule will afford protection of 
aquatic organisms at individual, population, community, or ecosystem 
levels of ecological structures. Therefore, EPA expects today's rule 
will advance the objective of the Executive Order to protect marine 
areas.

J. Executive Order 13211 (Energy Effects)

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355; May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.
    Track I of the final section 316(b) new facility rule requires 
facilities with an intake flow equal to or greater than 10 MGD to 
install a recirculating system or other technologies that would reduce

[[Page 65333]]

the design intake flow to a level commensurate with that of a 
recirculating system. For the purposes of this Statement of Energy 
Effects, EPA believes that facilities that do not already plan to 
install a recirculating system in the baseline will install a 
recirculating wet cooling tower to achieve compliance with the rule (9 
power plants). Installation of a cooling tower imposes an ``energy 
penalty,'' consisting of two components: (1) A reduction in unit 
efficiency due to increased turbine back-pressure; and (2) an increase 
in auxiliary power requirements to operate the recirculating wet 
cooling tower. EPA estimates that the installation of 9 recirculating 
wet cooling towers as a result of this rule (that is, those installed 
at new power plants that would otherwise not utilize recirculating wet 
cooling in absence of the rule) would reduce available generating 
capacity by a maximum of 100 megawatts (MW) nationally. EPA also 
considered the energy requirements of other compliance technologies, 
such as rotating screens, but found them insignificant and thus 
excluded them from this analysis.
    EPA estimates that 4 new coal-fired power plants and 5 new 
combined-cycle power plants will install a recirculating wet cooling 
tower to comply with the final section 316(b) new facility rule. The 
estimated generating capacity of the four new coal facilities ranges 
from 63 MW to 3,564 MW. Each of the five combined-cycle facilities has 
a generating capacity of 1,031 MW. The estimated mean annual energy 
penalty is 1.65 percent of the generating capacity for coal-fired 
facilities and 0.40 percent for combined-cycle facilities. As a result, 
the installation of recirculating wet cooling towers to comply with the 
final rule is likely to reduce available energy supply by an average of 
approximately 74 MW per year over the next 20 years (2001 to 2020). The 
reduction will reach a maximum of 100 MW in 2017, when all 9 facilities 
are projected to have begun operation (see Section IV.A.1 of this 
preamble for details on the projected number and cooling water 
characteristics of new electric generators). These reductions are 
actually an overestimate due to the fact that some facilities may 
choose to comply with Track II and implement technologies other than 
recirculating wet cooling towers.
    EPA believes that the estimated reduction in available energy 
supply as a result of the final section 316(b) rule does not constitute 
a significant energy effect. During the period covered by EPA's new 
facility projection, 2001 to 2020, the Energy Information 
Administration (EIA) forecasts total new capacity additions of 370 
gigawatts (GW) (1 GW = 1,000 MW) and an average available generating 
capability of 921 GW. Compared to the EIA forecasts, the estimated 
energy effect of the final rule is insignificant, comprising only 0.03 
percent of total new capacity (100 MW/370 GW) and 0.008 percent of the 
average available generating capability (74 MW/921 GW) at new 
facilities. Chapter 9 of the Economic Analysis provides more detail 
about the estimated energy effect of the final section 316(b) new 
facility rule. Chapter 3 of the Technical Development Document further 
discusses energy penalty estimation.

K. National Technology Transfer and Advancement Act

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act (NTTAA) of 1995, Pub L. 104-
113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standard bodies. The NTTAA directs EPA to provide Congress, through the 
Office of Management and Budget (OMB), explanations when the Agency 
decides not to use available and applicable voluntary consensus 
standards.
    This final rule does not involve technical standards. Therefore, 
EPA did not consider the use of any voluntary consensus standards.

L. Plain Language Directive

    Executive Order 12866 requires each agency to write all rules in 
plain language. EPA has written this final rule in plain language to 
make the rule easier to understand. EPA specifically solicited comment 
on how to make this rule easier to understand. EPA received no comments 
on the plain language of the proposal or NODA.

M. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not considered a ``major rule'' as defined by 
5 U.S.C. 804(2). This rule will be effective January 17, 2002.

List of Subjects

40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

40 CFR Part 122

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

40 CFR Part 123

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

40 CFR Part 124

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

40 CFR Part 125

    Environmental protection, Reporting and recordkeeping requirements, 
Waste treatment and disposal, Water pollution control.

    Dated: November 9, 2001.
Christine Todd Whitman,
Administrator.
BILLING CODE 6560-50-P

[[Page 65334]]

Appendix 1 to The Preamble--Section 316(b) New Facility Rule 
Framework
[GRAPHIC] [TIFF OMITTED] TR18DE01.030


[[Page 65335]]



Appendix 2 to The Preamble--Illustration of Flow Requirement for 
Estuaries and Tidal Rivers
[GRAPHIC] [TIFF OMITTED] TR18DE01.031


[[Page 65336]]



Appendix 3 to The Preamble--Examples of Areas and Volumes Defined 
in Estuaries or Tidal Rivers By The Tidal Excursion Distance
[GRAPHIC] [TIFF OMITTED] TR18DE01.032


[[Page 65337]]


BILLING CODE 6560-50-C

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

PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT

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

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671, 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 
9601-9657, 11023, 11048.


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


Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                                 OMB
                      40 CFR citation                        Control No.
------------------------------------------------------------------------
 
                  *        *        *        *        *
------------------------------------------------------------------------
   EPA Administered Permit Programs: The National Pollutant Discharge
                           Elimination System
------------------------------------------------------------------------
 
                  *        *        *        *        *
------------------------------------------------------------------------
122.21(r)..................................................    2040-0241
 
------------------------------------------------------------------------
                  *        *        *        *        *
 Criteria and Standards for the National Pollutant Discharge Elimination
                                 System
 
                  *        *        *        *        *
125.86.....................................................    2040-0241
125.87.....................................................    2040-0241
125.88.....................................................    2040-0241
125.89.....................................................    2040-0241
 
                         *      *    *    *    *
------------------------------------------------------------------------

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

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

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


    2. Section 122.21 is amended by adding a new paragraph (r) to read 
as follows:


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

* * * * *
    (r) Applications for facilities with cooling water intake 
structures--(1) New facilities with new or modified cooling water 
intake structures. New facilities with cooling water intake structures 
as defined in part 125, subpart I, of this chapter must report the 
information required under paragraphs (r)(2), (3), and (4) of this 
section and Sec. 125.86 of this chapter. Requests for alternative 
requirements under Sec. 125.85 of this chapter must be submitted with 
your permit application.
    (2) Source water physical data. These include:
    (i) A narrative description and scaled drawings showing the 
physical configuration of all source water bodies used by your 
facility, including areal dimensions, depths, salinity and temperature 
regimes, and other documentation that supports your determination of 
the water body type where each cooling water intake structure is 
located;
    (ii) Identification and characterization of the source waterbody's 
hydrological and geomorphological features, as well as the methods you 
used to conduct any physical studies to determine your intake's area of 
influence within the waterbody and the results of such studies; and
    (iii) Locational maps.
    (3) Cooling water intake structure data. These include:
    (i) A narrative description of the configuration of each of your 
cooling water intake structures and where it is located in the water 
body and in the water column;
    (ii) Latitude and longitude in degrees, minutes, and seconds for 
each of your cooling water intake structures;
    (iii) A narrative description of the operation of each of your 
cooling water intake structures, including design intake flows, daily 
hours of operation, number of days of the year in operation and 
seasonal changes, if applicable;
    (iv) A flow distribution and water balance diagram that includes 
all sources of water to the facility, recirculating flows, and 
discharges; and
    (v) Engineering drawings of the cooling water intake structure.
    (4) Source water baseline biological characterization data. This 
information is required to characterize the biological community in the 
vicinity of the cooling water intake structure and to characterize the 
operation of the cooling water intake structures. The Director may also 
use this information in subsequent permit renewal proceedings to 
determine if your Design and Construction Technology Plan as required 
in Sec. 125.86(b)(4) of this chapter should be revised. This supporting 
information must include existing data (if they are available). 
However, you may supplement the data using newly conducted field 
studies if you choose to do so. The information you submit must 
include:
    (i) A list of the data in paragraphs (r)(4)(ii) through (vi) of 
this section that are not available and efforts made to identify 
sources of the data;
    (ii) A list of species (or relevant taxa) for all life stages and 
their relative abundance in the vicinity of the cooling water intake 
structure;
    (iii) Identification of the species and life stages that would be 
most susceptible to impingement and entrainment. Species evaluated 
should include the forage base as well as those most important in terms 
of significance to commercial and recreational fisheries;
    (iv) Identification and evaluation of the primary period of 
reproduction, larval recruitment, and period of peak abundance for 
relevant taxa;
    (v) Data representative of the seasonal and daily activities (e.g., 
feeding and water column migration) of biological organisms in the 
vicinity of the cooling water intake structure;
    (vi) Identification of all threatened, endangered, and other 
protected species that might be susceptible to impingement and 
entrainment at your cooling water intake structures;
    (vii) Documentation of any public participation or consultation 
with Federal or State agencies undertaken in development of the plan; 
and
    (viii) If you supplement the information requested in paragraph 
(r)(4)(i) of this section with data collected using field studies, 
supporting documentation for the Source Water Baseline Biological 
Characterization must include a description of all methods and quality 
assurance procedures for sampling, and data analysis including a 
description of the study area; taxonomic identification of sampled and 
evaluated biological assemblages (including all life stages of fish and 
shellfish); and sampling and data analysis methods. The sampling and/or 
data analysis methods you use must be appropriate for a quantitative 
survey and based on consideration of methods used in other biological 
studies performed within the same source water body. The study area 
should include, at a minimum, the area of influence of the cooling 
water intake structure.

    3. Section 122.44 is amended by adding paragraph (b)(3) to read as 
follows:

[[Page 65338]]

Sec. 122.44  Establishing limitations, standards, and other permit 
conditions (applicable to State NPDES programs, see Sec. 123.25).

* * * * *
    (b) * * *
    (3) Requirements applicable to cooling water intake structures at 
new facilities under section 316(b) of the CWA, in accordance with part 
125, subpart I, of this chapter.
* * * * *

PART 123--STATE PROGRAM REQUIREMENTS

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

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

    2. Section 123.25 is amended by revising paragraph (a)(36) to read 
as follows:


Sec. 123.25  Requirements for permitting.

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

PART 124--PROCEDURES FOR DECISIONMAKING

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

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean 
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et 
seq.

    2. Section 124.10 is amended by redesignating paragraph (d)(1)(ix) 
as paragraph (d)(1)(x) and adding a new paragraph (d)(1)(ix) to read as 
follows:


Sec. 124.10  Public notice of permit actions and public comment period.

* * * * *
    (d) * * *
    (1) * * *
    (ix) Requirements applicable to cooling water intake structures at 
new facilities under section 316(b) of the CWA, in accordance with part 
125, subpart I, of this chapter.
* * * * *

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

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

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


    2. Remove the existing heading for subpart I and add new subpart I 
to part 125 to read as follows:
Subpart I--Requirements Applicable to Cooling Water Intake Structures 
for New Facilities Under Section 316(b) of the Act
Sec.
125.80   What are the purpose and scope of this subpart?
125.81   Who is subject to this subpart?
125.82   When must I comply with this subpart?
125.83   What special definitions apply to this subpart?
125.84   As an owner or operator of a new facility, what must I do 
to comply with this subpart?
125.85   May alternative requirements be authorized?
125.86   As an owner or operator of a new facility, what must I 
collect and submit when I apply for my new or reissued NPDES permit?
125.87   As an owner or operator of a new facility, must I perform 
monitoring?
125.88   As an owner or operator of a new facility, must I keep 
records and report?
125.89   As the Director, what must I do to comply with the 
requirements of this subpart?

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


Sec. 125.80  What are the purpose and scope of this subpart?

    (a) This subpart establishes requirements that apply to the 
location, design, construction, and capacity of cooling water intake 
structures at new facilities. The purpose of these requirements is to 
establish the best technology available for minimizing adverse 
environmental impact associated with the use of cooling water intake 
structures. These requirements are implemented through National 
Pollutant Discharge Elimination System (NPDES) permits issued under 
section 402 of the Clean Water Act (CWA).
    (b) This subpart implements section 316(b) of the CWA for new 
facilities. Section 316(b) of the CWA provides that any standard 
established pursuant to sections 301 or 306 of the CWA and applicable 
to a point source shall require that the location, design, 
construction, and capacity of cooling water intake structures reflect 
the best technology available for minimizing adverse environmental 
impact.
    (c) New facilities that do not meet the threshold requirements 
regarding amount of water withdrawn or percentage of water withdrawn 
for cooling water purposes in Sec. 125.81(a) must meet requirements 
determined on a case-by-case, best professional judgement (BPJ) basis.
    (d) Nothing in this subpart shall be construed to preclude or deny 
the right of any State or political subdivision of a State or any 
interstate agency under section 510 of the CWA to adopt or enforce any 
requirement with respect to control or abatement of pollution that is 
more stringent than those required by Federal law.


Sec. 125.81  Who is subject to this subpart?

    (a) This subpart applies to a new facility if it:
    (1) Is a point source that uses or proposes to use a cooling water 
intake structure;
    (2) Has at least one cooling water intake structure that uses at 
least 25 percent of the water it withdraws for cooling purposes as 
specified in paragraph (c) of this section; and
    (3) Has a design intake flow greater than two (2) million gallons 
per day (MGD).
    (b) Use of a cooling water intake structure includes obtaining 
cooling water by any sort of contract or arrangement with an 
independent supplier (or multiple suppliers) of cooling water if the 
supplier or suppliers withdraw(s) water from waters of the United 
States. Use of cooling water does not include obtaining cooling water 
from a public water system or the use of treated effluent that 
otherwise would be discharged to a water of the U.S. This provision is 
intended to prevent circumvention of these requirements by creating 
arrangements to receive cooling water from an entity that is not itself 
a point source.
    (c) The threshold requirement that at least 25 percent of water 
withdrawn be used for cooling purposes must be measured on an average 
monthly basis. A new facility meets the 25 percent cooling water 
threshold if, based on the new facility's design, any monthly average 
over a year for the percentage of cooling water withdrawn is expected 
to equal or exceed 25 percent of the total water withdrawn.
    (d) This subpart does not apply to facilities that employ cooling 
water intake structures in the offshore and coastal subcategories of 
the oil and gas extraction point source category as defined under 40 
CFR 435.10 and 40 CFR 435.40.


Sec. 125.82  When must I comply with this subpart?

    You must comply with this subpart when an NPDES permit containing 
requirements consistent with this subpart is issued to you.


Sec. 125.83  What special definitions apply to this subpart?

    The following special definitions apply to this subpart:
    Annual mean flow means the average of daily flows over a calendar 
year.

[[Page 65339]]

Historical data (up to 10 years) must be used where available.
    Closed-cycle recirculating system means a system designed, using 
minimized makeup and blowdown flows, to withdraw water from a natural 
or other water source to support contact and/or noncontact cooling uses 
within a facility. The water is usually sent to a cooling canal or 
channel, lake, pond, or tower to allow waste heat to be dissipated to 
the atmosphere and then is returned to the system. (Some facilities 
divert the waste heat to other process operations.) New source water 
(make-up water) is added to the system to replenish losses that have 
occurred due to blowdown, drift, and evaporation.
    Cooling water means water used for contact or noncontact cooling, 
including water used for equipment cooling, evaporative cooling tower 
makeup, and dilution of effluent heat content. The intended use of the 
cooling water is to absorb waste heat rejected from the process or 
processes used, or from auxiliary operations on the facility's 
premises. Cooling water that is used in a manufacturing process either 
before or after it is used for cooling is considered process water for 
the purposes of calculating the percentage of a new facility's intake 
flow that is used for cooling purposes in Sec. 125.81(c).
    Cooling water intake structure means the total physical structure 
and any associated constructed waterways used to withdraw cooling water 
from waters of the U.S. The cooling water intake structure extends from 
the point at which water is withdrawn from the surface water source up 
to, and including, the intake pumps.
    Design intake flow means the value assigned (during the facility's 
design) to the total volume of water withdrawn from a source water body 
over a specific time period.
    Design intake velocity means the value assigned (during the design 
of a cooling water intake structure) to the average speed at which 
intake water passes through the open area of the intake screen (or 
other device) against which organisms might be impinged or through 
which they might be entrained.
    Entrainment means the incorporation of all life stages of fish and 
shellfish with intake water flow entering and passing through a cooling 
water intake structure and into a cooling water system.
    Estuary means a semi-enclosed body of water that has a free 
connection with open seas and within which the seawater is measurably 
diluted with fresh water derived from land drainage. The salinity of an 
estuary exceeds 0.5 parts per thousand (by mass) but is typically less 
than 30 parts per thousand (by mass).
    Existing facility means any facility that is not a new facility.
    Freshwater river or stream means a lotic (free-flowing) system that 
does not receive significant inflows of water from oceans or bays due 
to tidal action. For the purposes of this rule, a flow-through 
reservoir with a retention time of 7 days or less will be considered a 
freshwater river or stream.
    Hydraulic zone of influence means that portion of the source 
waterbody hydraulically affected by the cooling water intake structure 
withdrawal of water.
    Impingement means the entrapment of all life stages of fish and 
shellfish on the outer part of an intake structure or against a 
screening device during periods of intake water withdrawal.
    Lake or reservoir means any inland body of open water with some 
minimum surface area free of rooted vegetation and with an average 
hydraulic retention time of more than 7 days. Lakes or reservoirs might 
be natural water bodies or impounded streams, usually fresh, surrounded 
by land or by land and a man-made retainer (e.g., a dam). Lakes or 
reservoirs might be fed by rivers, streams, springs, and/or local 
precipitation. Flow-through reservoirs with an average hydraulic 
retention time of 7 days or less should be considered a freshwater 
river or stream.
    Maximize means to increase to the greatest amount, extent, or 
degree reasonably possible.
    Minimum ambient source water surface elevation means the elevation 
of the 7Q10 flow for freshwater streams or rivers; the conservation 
pool level for lakes or reservoirs; or the mean low tidal water level 
for estuaries or oceans. The 7Q10 flow is the lowest average 7 
consecutive day low flow with an average frequency of one in 10 years 
determined hydrologically. The conservation pool is the minimum depth 
of water needed in a reservoir to ensure proper performance of the 
system relying upon the reservoir. The mean low tidal water level is 
the average height of the low water over at least 19 years.
    Minimize means to reduce to the smallest amount, extent, or degree 
reasonably possible.
    Natural thermal stratification means the naturally-occurring 
division of a waterbody into horizontal layers of differing densities 
as a result of variations in temperature at different depths.
    New facility means any building, structure, facility, or 
installation that meets the definition of a ``new source'' or ``new 
discharger'' in 40 CFR 122.2 and 122.29(b)(1), (2), and (4) and is a 
greenfield or stand-alone facility; commences construction after 
January 17, 2002; and uses either a newly constructed cooling water 
intake structure, or an existing cooling water intake structure whose 
design capacity is increased to accommodate the intake of additional 
cooling water. New facilities include only ``greenfield'' and ``stand-
alone'' facilities. A greenfield facility is a facility that is 
constructed at a site at which no other source is located, or that 
totally replaces the process or production equipment at an existing 
facility (see 40 CFR 122.29(b)(1)(i) and (ii)). A stand-alone facility 
is a new, separate facility that is constructed on property where an 
existing facility is located and whose processes are substantially 
independent of the existing facility at the same site (see 40 CFR 
122.29(b)(1)(iii)). New facility does not include new units that are 
added to a facility for purposes of the same general industrial 
operation (for example, a new peaking unit at an electrical generating 
station).
    (1) Examples of ``new facilities'' include, but are not limited to: 
the following scenarios:
    (i) A new facility is constructed on a site that has never been 
used for industrial or commercial activity. It has a new cooling water 
intake structure for its own use.
    (ii) A facility is demolished and another facility is constructed 
in its place. The newly-constructed facility uses the original 
facility's cooling water intake structure, but modifies it to increase 
the design capacity to accommodate the intake of additional cooling 
water.
    (iii) A facility is constructed on the same property as an existing 
facility, but is a separate and independent industrial operation. The 
cooling water intake structure used by the original facility is 
modified by constructing a new intake bay for the use of the newly 
constructed facility or is otherwise modified to increase the intake 
capacity for the new facility.
    (2) Examples of facilities that would not be considered a ``new 
facility'' include, but are not limited to, the following scenarios:
    (i) A facility in commercial or industrial operation is modified 
and either continues to use its original cooling water intake structure 
or uses a new or modified cooling water intake structure.
    (ii) A facility has an existing intake structure. Another facility 
(a separate and independent industrial operation),

[[Page 65340]]

is constructed on the same property and connects to the facility's 
cooling water intake structure behind the intake pumps, and the design 
capacity of the cooling water intake structure has not been increased. 
This facility would not be considered a ``new facility'' even if 
routine maintenance or repairs that do not increase the design capacity 
were performed on the intake structure.
    Ocean means marine open coastal waters with a salinity greater than 
or equal to 30 parts per thousand (by mass).
    Source water means the water body (waters of the U.S.) from which 
the cooling water is withdrawn.
    Thermocline means the middle layer of a thermally stratified lake 
or reservoir. In this layer, there is a rapid decrease in temperatures.
    Tidal excursion means the horizontal distance along the estuary or 
tidal river that a particle moves during one tidal cycle of ebb and 
flow.
    Tidal river means the most seaward reach of a river or stream where 
the salinity is typically less than or equal to 0.5 parts per thousand 
(by mass) at a time of annual low flow and whose surface elevation 
responds to the effects of coastal lunar tides.


Sec. 125.84  As an owner or operator of a new facility, what must I do 
to comply with this subpart?

    (a)(1) The owner or operator of a new facility must comply with 
either:
    (i) Track I in paragraph (b) or (c) of this section; or
    (ii) Track II in paragraph (d) of this section.
    (2) In addition to meeting the requirements in paragraph (b), (c), 
or (d) of this section, the owner or operator of a new facility may be 
required to comply with paragraph (e) of this section.
    (b) Track I requirements for new facilities that withdraw equal to 
or greater than 10 MGD. You must comply with all of the following 
requirements:
    (1) You must reduce your intake flow, at a minimum, to a level 
commensurate with that which can be attained by a closed-cycle 
recirculating cooling water system;
    (2) You must design and construct each cooling water intake 
structure at your facility to a maximum through-screen design intake 
velocity of 0.5     ft/s;
    (3) You must design and construct your cooling water intake 
structure such that the total design intake flow from all cooling water 
intake structures at your facility meets the following requirements:
    (i) For cooling water intake structures located in a freshwater 
river or stream, the total design intake flow must be no greater than 
five (5) percent of the source water annual mean flow;
    (ii) For cooling water intake structures located in a lake or 
reservoir, the total design intake flow must not disrupt the natural 
thermal stratification or turnover pattern (where present) of the 
source water except in cases where the disruption is determined to be 
beneficial to the management of fisheries for fish and shellfish by any 
fishery management agency(ies);
    (iii) For cooling water intake structures located in an estuary or 
tidal river, the total design intake flow over one tidal cycle of ebb 
and flow must be no greater than one (1) percent of the volume of the 
water column within the area centered about the opening of the intake 
with a diameter defined by the distance of one tidal excursion at the 
mean low water level;
    (4) You must select and implement design and construction 
technologies or operational measures for minimizing impingement 
mortality of fish and shellfish if:
    (i) There are threatened or endangered or otherwise protected 
federal, state, or tribal species, or critical habitat for these 
species, within the hydraulic zone of influence of the cooling water 
intake structure; or
    (ii) There are migratory and/or sport or commercial species of 
impingement concern to the Director or any fishery management 
agency(ies), which pass through the hydraulic zone of influence of the 
cooling water intake structure; or
    (iii) It is determined by the Director or any fishery management 
agency(ies) that the proposed facility, after meeting the technology-
based performance requirements in paragraphs (b)(1), (2), and (3) of 
this section, would still contribute unacceptable stress to the 
protected species, critical habitat of those species, or species of 
concern;
    (5) You must select and implement design and construction 
technologies or operational measures for minimizing entrainment of 
entrainable life stages of fish and shellfish if:
    (i) There are threatened or endangered or otherwise protected 
federal, state, or tribal species, or critical habitat for these 
species, within the hydraulic zone of influence of the cooling water 
intake structure; or
    (ii) There are or would be undesirable cumulative stressors 
affecting entrainable life stages of species of concern to the Director 
or any fishery management agency(ies), and it is determined by the 
Director or any fishery management agency(ies) that the proposed 
facility, after meeting the technology-based performance requirements 
in paragraphs (b)(1), (2), and (3) of this section, would contribute 
unacceptable stress to these species of concern;
    (6) You must submit the application information required in 40 CFR 
122.21(r) and Sec. 125.86(b);
    (7) You must implement the monitoring requirements specified in 
Sec. 125.87;
    (8) You must implement the record-keeping requirements specified in 
Sec. 125.88.
    (c) Track I requirements for new facilities that withdraw equal to 
or greater than 2 MGD and less than 10 MGD and that choose not to 
comply with paragraph (b) of this section. You must comply with all the 
following requirements:
    (1) You must design and construct each cooling water intake 
structure at your facility to a maximum through-screen design intake 
velocity of 0.5     ft/s;
    (2) You must design and construct your cooling water intake 
structure such that the total design intake flow from all cooling water 
intake structures at your facility meets the following requirements:
    (i) For cooling water intake structures located in a freshwater 
river or stream, the total design intake flow must be no greater than 
five (5) percent of the source water annual mean flow;
    (ii) For cooling water intake structures located in a lake or 
reservoir, the total design intake flow must not disrupt the natural 
thermal stratification or turnover pattern (where present) of the 
source water except in cases where the disruption is determined to be 
beneficial to the management of fisheries for fish and shellfish by any 
fishery management agency(ies);
    (iii) For cooling water intake structures located in an estuary or 
tidal river, the total design intake flow over one tidal cycle of ebb 
and flow must be no greater than one (1) percent of the volume of the 
water column within the area centered about the opening of the intake 
with a diameter defined by the distance of one tidal excursion at the 
mean low water level;
    (3) You must select and implement design and construction 
technologies or operational measures for minimizing impingement 
mortality of fish and shellfish if:
    (i) There are threatened or endangered or otherwise protected 
federal, state, or tribal species, or critical habitat for these 
species, within the hydraulic zone of influence of the cooling water 
intake structure; or
    (ii) There are migratory and/or sport or commercial species of 
impingement

[[Page 65341]]

concern to the Director or any fishery management agency(ies), which 
pass through the hydraulic zone of influence of the cooling water 
intake structure; or
    (iii) It is determined by the Director or any fishery management 
agency(ies) that the proposed facility, after meeting the technology-
based performance requirements in paragraphs (c)(1) and (2) of this 
section, would still contribute unacceptable stress to the protected 
species, critical habitat of those species, or species of concern;
    (4) You must select and implement design and construction 
technologies or operational measures for minimizing entrainment of 
entrainable life stages of fish and shellfish;
    (5) You must submit the application information required in 40 CFR 
122.21(r) and Sec. 125.86(b)(2), (3), and (4);
    (6) You must implement the monitoring requirements specified in 
Sec. 125.87;
    (7) You must implement the recordkeeping requirements specified in 
Sec. 125.88.
    (d) Track II. The owner or operator of a new facility that chooses 
to comply under Track II must comply with the following requirements:
    (1) You must demonstrate to the Director that the technologies 
employed will reduce the level of adverse environmental impact from 
your cooling water intake structures to a comparable level to that 
which you would achieve were you to implement the requirements of 
paragraphs (b)(1) and (2) of this section.
    (i) Except as specified in paragraph (d)(1)(ii) of this section, 
this demonstration must include a showing that the impacts to fish and 
shellfish, including important forage and predator species, within the 
watershed will be comparable to those which would result if you were to 
implement the requirements of paragraphs (b)(1) and (2) of this 
section. This showing may include consideration of impacts other than 
impingement mortality and entrainment, including measures that will 
result in increases in fish and shellfish, but it must demonstrate 
comparable performance for species that the Director, in consultation 
with national, state or tribal fishery management agencies with 
responsibility for fisheries potentially affected by your cooling water 
intake structure, identifies as species of concern.
    (ii) In cases where air emissions and/or energy impacts that would 
result from meeting the requirements of paragraphs (b)(1) and (2) of 
this section would result in significant adverse impacts on local air 
quality, significant adverse impact on local water resources not 
addressed under paragraph (d)(1)(i) of this section, or significant 
adverse impact on local energy markets, you may request alternative 
requirements under Sec. 125.85.
    (2) You must design and construct your cooling water intake 
structure such that the total design intake flow from all cooling water 
intake structures at your facility meet the following requirements:
    (i) For cooling water intake structures located in a freshwater 
river or stream, the total design intake flow must be no greater than 
five (5) percent of the source water annual mean flow;
    (ii) For cooling water intake structures located in a lake or 
reservoir, the total design intake flow must not disrupt the natural 
thermal stratification or turnover pattern (where present) of the 
source water except in cases where the disruption is determined to be 
beneficial to the management of fisheries for fish and shellfish by any 
fishery management agency(ies);
    (iii) For cooling water intake structures located in an estuary or 
tidal river, the total design intake flow over one tidal cycle of ebb 
and flow must be no greater than one (1) percent of the volume of the 
water column within the area centered about the opening of the intake 
with a diameter defined by the distance of one tidal excursion at the 
mean low water level.
    (3) You must submit the application information required in 40 CFR 
122.21(r) and Sec. 125.86(c).
    (4) You must implement the monitoring requirements specified in 
Sec. 125.87.
    (5) You must implement the record-keeping requirements specified in 
Sec. 125.88.
    (e) You must comply with any more stringent requirements relating 
to the location, design, construction, and capacity of a cooling water 
intake structure or monitoring requirements at a new facility that the 
Director deems are reasonably necessary to comply with any provision of 
state law, including compliance with applicable state water quality 
standards (including designated uses, criteria, and antidegradation 
requirements).


Sec. 125.85  May alternative requirements be authorized?

    (a) Any interested person may request that alternative requirements 
less stringent than those specified in Sec. 125.84(a) through (e) be 
imposed in the permit. The Director may establish alternative 
requirements less stringent than the requirements of Sec. 125.84(a) 
through (e) only if:
    (1) There is an applicable requirement under Sec. 125.84(a) through 
(e);
    (2) The Director determines that data specific to the facility 
indicate that compliance with the requirement at issue would result in 
compliance costs wholly out of proportion to those EPA considered in 
establishing the requirement at issue or would result in significant 
adverse impacts on local air quality, significant adverse impacts on 
local water resources not addressed under Sec. 125.84(d)(1)(i), or 
significant adverse impacts on local energy markets;
    (3) The alternative requirement requested is no less stringent than 
justified by the wholly out of proportion cost or the significant 
adverse impacts on local air quality, significant adverse impacts on 
local water resources not addressed under Sec. 125.84(d)(1)(i), or 
significant adverse impacts on local energy markets; and
    (4) The alternative requirement will ensure compliance with other 
applicable provisions of the Clean Water Act and any applicable 
requirement of state law.
    (b) The burden is on the person requesting the alternative 
requirement to demonstrate that alternative requirements should be 
authorized.


Sec. 125.86  As an owner or operator of a new facility, what must I 
collect and submit when I apply for my new or reissued NPDES permit?

    (a)(1) As an owner or operator of a new facility, you must submit 
to the Director a statement that you intend to comply with either:
    (i) The Track I requirements for new facilities that withdraw equal 
to or greater than 10 MGD in Sec. 125.84(b);
    (ii) The Track I requirements for new facilities that withdraw 
equal to or greater than 2 MGD and less than 10 MGD in Sec. 125.84(c);
    (iii) The requirements for Track II in Sec. 125.84 (d).
    (2) You must also submit the application information required by 40 
CFR 122.21(r) and the information required in either paragraph (b) of 
this section for Track I or paragraph (c) of this section for Track II 
when you apply for a new or reissued NPDES permit in accordance with 40 
CFR 122.21.
    (b) Track I application requirements. To demonstrate compliance 
with Track I requirements in Sec. 125.84(b) or (c), you must collect 
and submit to the Director the information in paragraphs (b)(1) through 
(4) of this section.
    (1) Flow reduction information. If you must comply with the flow 
reduction requirements in Sec. 125.84(b)(1), you must submit the 
following information to the

[[Page 65342]]

Director to demonstrate that you have reduced your flow to a level 
commensurate with that which can be attained by a closed-cycle 
recirculating cooling water system:
    (i) A narrative description of your system that has been designed 
to reduce your intake flow to a level commensurate with that which can 
be attained by a closed-cycle recirculating cooling water system and 
any engineering calculations, including documentation demonstrating 
that your make-up and blowdown flows have been minimized; and
    (ii) If the flow reduction requirement is met entirely, or in part, 
by reusing or recycling water withdrawn for cooling purposes in 
subsequent industrial processes, you must provide documentation that 
the amount of cooling water that is not reused or recycled has been 
minimized.
    (2) Velocity information. You must submit the following information 
to the Director to demonstrate that you are complying with the 
requirement to meet a maximum through-screen design intake velocity of 
no more than 0.5 ft/s at each cooling water intake structure as 
required in Sec. 125.84(b)(2) and (c)(1):
    (i) A narrative description of the design, structure, equipment, 
and operation used to meet the velocity requirement; and
    (ii) Design calculations showing that the velocity requirement will 
be met at minimum ambient source water surface elevations (based on 
best professional judgement using available hydrological data) and 
maximum head loss across the screens or other device.
    (3) Source waterbody flow information. You must submit to the 
Director the following information to demonstrate that your cooling 
water intake structure meets the flow requirements in Sec. 125.84(b)(3) 
and (c)(2):
    (i) If your cooling water intake structure is located in a 
freshwater river or stream, you must provide the annual mean flow and 
any supporting documentation and engineering calculations to show that 
your cooling water intake structure meets the flow requirements;
    (ii) If your cooling water intake structure is located in an 
estuary or tidal river, you must provide the mean low water tidal 
excursion distance and any supporting documentation and engineering 
calculations to show that your cooling water intake structure facility 
meets the flow requirements; and
    (iii) If your cooling water intake structure is located in a lake 
or reservoir, you must provide a narrative description of the water 
body thermal stratification, and any supporting documentation and 
engineering calculations to show that the natural thermal 
stratification and turnover pattern will not be disrupted by the total 
design intake flow. In cases where the disruption is determined to be 
beneficial to the management of fisheries for fish and shellfish you 
must provide supporting documentation and include a written concurrence 
from any fisheries management agency(ies) with responsibility for 
fisheries potentially affected by your cooling water intake 
structure(s).
    (4) Design and Construction Technology Plan. To comply with 
Sec. 125.84(b)(4) and (5), or (c)(3) and (c)(4), you must submit to the 
Director the following information in a Design and Construction 
Technology Plan:
    (i) Information to demonstrate whether or not you meet the criteria 
in Sec. 125.84(b)(4) and (b)(5), or (c)(3) and (c)(4);
    (ii) Delineation of the hydraulic zone of influence for your 
cooling water intake structure;
    (iii) New facilities required to install design and construction 
technologies and/or operational measures must develop a plan explaining 
the technologies and measures you have selected based on information 
collected for the Source Water Biological Baseline Characterization 
required by 40 CFR 122.21(r)(3). (Examples of appropriate technologies 
include, but are not limited to, wedgewire screens, fine mesh screens, 
fish handling and return systems, barrier nets, aquatic filter barrier 
systems, etc. Examples of appropriate operational measures include, but 
are not limited to, seasonal shutdowns or reductions in flow, 
continuous operations of screens, etc.) The plan must contain the 
following information:
    (A) A narrative description of the design and operation of the 
design and construction technologies, including fish-handling and 
return systems, that you will use to maximize the survival of those 
species expected to be most susceptible to impingement. Provide 
species-specific information that demonstrates the efficacy of the 
technology;
    (B) A narrative description of the design and operation of the 
design and construction technologies that you will use to minimize 
entrainment of those species expected to be the most susceptible to 
entrainment. Provide species-specific information that demonstrates the 
efficacy of the technology; and
    (C) Design calculations, drawings, and estimates to support the 
descriptions provided in paragraphs (b)(4)(iii)(A) and (B) of this 
section.
    (c) Application requirements for Track II. If you have chosen to 
comply with the requirements of Track II in Sec. 125.84(d) you must 
collect and submit the following information:
    (1) Source waterbody flow information. You must submit to the 
Director the following information to demonstrate that your cooling 
water intake structure meets the source water body requirements in 
Sec. 125.84(d)(2):
    (i) If your cooling water intake structure is located in a 
freshwater river or stream, you must provide the annual mean flow and 
any supporting documentation and engineering calculations to show that 
your cooling water intake structure meets the flow requirements;
    (ii) If your cooling water intake structure is located in an 
estuary or tidal river, you must provide the mean low water tidal 
excursion distance and any supporting documentation and engineering 
calculations to show that your cooling water intake structure facility 
meets the flow requirements; and
    (iii) If your cooling water intake structure is located in a lake 
or reservoir, you must provide a narrative description of the water 
body thermal stratification, and any supporting documentation and 
engineering calculations to show that the natural thermal 
stratification and thermal or turnover pattern will not be disrupted by 
the total design intake flow. In cases where the disruption is 
determined to be beneficial to the management of fisheries for fish and 
shellfish you must provide supporting documentation and include a 
written concurrence from any fisheries management agency(ies) with 
responsibility for fisheries potentially affected by your cooling water 
intake structure(s).
    (2) Track II Comprehensive Demonstration Study. You must perform 
and submit the results of a Comprehensive Demonstration Study (Study). 
This information is required to characterize the source water baseline 
in the vicinity of the cooling water intake structure(s), characterize 
operation of the cooling water intake(s), and to confirm that the 
technology(ies) proposed and/or implemented at your cooling water 
intake structure reduce the impacts to fish and shellfish to levels 
comparable to those you would achieve were you to implement the 
requirements in Sec. 125.84(b)(1)and (2) of Track I. To meet the 
``comparable level''

[[Page 65343]]

requirement, you must demonstrate that:
    (i) You have reduced both impingement mortality and entrainment of 
all life stages of fish and shellfish to 90 percent or greater of the 
reduction that would be achieved through Sec. 125.84(b)(1) and (2); or
    (ii) If your demonstration includes consideration of impacts other 
than impingement mortality and entrainment, that the measures taken 
will maintain the fish and shellfish in the waterbody at a 
substantially similar level to that which would be achieved through 
Sec. 125.84(b)(1) and (2); and
    (iii) You must develop and submit a plan to the Director containing 
a proposal for how information will be collected to support the study. 
The plan must include:
    (A) A description of the proposed and/or implemented 
technology(ies) to be evaluated in the Study;
    (B) A list and description of any historical studies characterizing 
the physical and biological conditions in the vicinity of the proposed 
or actual intakes and their relevancy to the proposed Study. If you 
propose to rely on existing source water body data, it must be no more 
than 5 years old, you must demonstrate that the existing data are 
sufficient to develop a scientifically valid estimate of potential 
impingement and entrainment impacts, and provide documentation showing 
that the data were collected using appropriate quality assurance/
quality control procedures;
    (C) Any public participation or consultation with Federal or State 
agencies undertaken in developing the plan; and
    (D) A sampling plan for data that will be collected using actual 
field studies in the source water body. The sampling plan must document 
all methods and quality assurance procedures for sampling, and data 
analysis. The sampling and data analysis methods you propose must be 
appropriate for a quantitative survey and based on consideration of 
methods used in other studies performed in the source water body. The 
sampling plan must include a description of the study area (including 
the area of influence of the cooling water intake structure and at 
least 100 meters beyond); taxonomic identification of the sampled or 
evaluated biological assemblages (including all life stages of fish and 
shellfish); and sampling and data analysis methods; and
    (iv) You must submit documentation of the results of the Study to 
the Director. Documentation of the results of the Study must include:
    (A) Source Water Biological Study. The Source Water Biological 
Study must include:
    (1) A taxonomic identification and characterization of aquatic 
biological resources including: a summary of historical and 
contemporary aquatic biological resources; determination and 
description of the target populations of concern (those species of fish 
and shellfish and all life stages that are most susceptible to 
impingement and entrainment); and a description of the abundance and 
temporal/spatial characterization of the target populations based on 
the collection of multiple years of data to capture the seasonal and 
daily activities (e.g., spawning, feeding and water column migration) 
of all life stages of fish and shellfish found in the vicinity of the 
cooling water intake structure;
    (2) An identification of all threatened or endangered species that 
might be susceptible to impingement and entrainment by the proposed 
cooling water intake structure(s); and
    (3) A description of additional chemical, water quality, and other 
anthropogenic stresses on the source waterbody.
    (B) Evaluation of potential cooling water intake structure effects. 
This evaluation will include:
    (1) Calculations of the reduction in impingement mortality and 
entrainment of all life stages of fish and shellfish that would need to 
be achieved by the technologies you have selected to implement to meet 
requirements under Track II. To do this, you must determine the 
reduction in impingement mortality and entrainment that would be 
achieved by implementing the requirements of Sec. 125.84(b)(1) and (2) 
of Track I at your site.
    (2) An engineering estimate of efficacy for the proposed and/or 
implemented technologies used to minimize impingement mortality and 
entrainment of all life stages of fish and shellfish and maximize 
survival of impinged life stages of fish and shellfish. You must 
demonstrate that the technologies reduce impingement mortality and 
entrainment of all life stages of fish and shellfish to a comparable 
level to that which you would achieve were you to implement the 
requirements in Sec. 125.84(b)(1) and (2) of Track I. The efficacy 
projection must include a site-specific evaluation of technology(ies) 
suitability for reducing impingement mortality and entrainment based on 
the results of the Source Water Biological Study in paragraph 
(c)(2)(iv)(A) of this section. Efficacy estimates may be determined 
based on case studies that have been conducted in the vicinity of the 
cooling water intake structure and/or site-specific technology 
prototype studies.
    (C) Evaluation of proposed restoration measures. If you propose to 
use restoration measures to maintain the fish and shellfish as allowed 
in Sec. 125.84(d)(1)(i), you must provide the following information to 
the Director:
    (1) Information and data to show that you have coordinated with the 
appropriate fishery management agency(ies); and
    (2) A plan that provides a list of the measures you plan to 
implement and how you will demonstrate and continue to ensure that your 
restoration measures will maintain the fish and shellfish in the 
waterbody to a substantially similar level to that which would be 
achieved through Sec. 125.84(b)(1) and (2).
    (D) Verification monitoring plan. You must include in the Study the 
following:
    (1) A plan to conduct, at a minimum, two years of monitoring to 
verify the full-scale performance of the proposed or implemented 
technologies, operational measures. The verification study must begin 
at the start of operations of the cooling water intake structure and 
continue for a sufficient period of time to demonstrate that the 
facility is reducing the level of impingement and entrainment to the 
level documented in paragraph (c)(2)(iv)(B) of this section. The plan 
must describe the frequency of monitoring and the parameters to be 
monitored. The Director will use the verification monitoring to confirm 
that you are meeting the level of impingement mortality and entrainment 
reduction required in Sec. 125.84(d), and that the operation of the 
technology has been optimized.
    (2) A plan to conduct monitoring to verify that the restoration 
measures will maintain the fish and shellfish in the waterbody to a 
substantially similar level as that which would be achieved through 
Sec. 125.84(b)(1) and (2).


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

    As an owner or operator of a new facility, you will be required to 
perform monitoring to demonstrate your compliance with the requirements 
specified in Sec. 125.84.
    (a) Biological monitoring. You must monitor both impingement and 
entrainment of the commercial, recreational, and forage base fish and 
shellfish species identified in either the Source Water Baseline 
Biological Characterization data required by 40 CFR 122.21(r)(3) or the 
Comprehensive Demonstration Study required by Sec. 125.86(c)(2), 
depending on whether

[[Page 65344]]

you chose to comply with Track I or Track II. The monitoring methods 
used must be consistent with those used for the Source Water Baseline 
Biological Characterization data required in 40 CFR 122.21(r)(3) or the 
Comprehensive Demonstration Study required by Sec. 125.86(c)(2). You 
must follow the monitoring frequencies identified below for at least 
two (2) years after the initial permit issuance. After that time, the 
Director may approve a request for less frequent sampling in the 
remaining years of the permit term and when the permit is reissued, if 
supporting data show that less frequent monitoring would still allow 
for the detection of any seasonal and daily variations in the species 
and numbers of individuals that are impinged or entrained.
    (1) Impingement sampling. You must collect samples to monitor 
impingement rates (simple enumeration) for each species over a 24-hour 
period and no less than once per month when the cooling water intake 
structure is in operation.
    (2) Entrainment sampling. You must collect samples to monitor 
entrainment rates (simple enumeration) for each species over a 24-hour 
period and no less than biweekly during the primary period of 
reproduction, larval recruitment, and peak abundance identified during 
the Source Water Baseline Biological Characterization required by 40 
CFR 122.21(r)(3) or the Comprehensive Demonstration Study required in 
Sec. 125.86(c)(2). You must collect samples only when the cooling water 
intake structure is in operation.
    (b) Velocity monitoring. If your facility uses surface intake 
screen systems, you must monitor head loss across the screens and 
correlate the measured value with the design intake velocity. The head 
loss across the intake screen must be measured at the minimum ambient 
source water surface elevation (best professional judgment based on 
available hydrological data). The maximum head loss across the screen 
for each cooling water intake structure must be used to determine 
compliance with the velocity requirement in Sec. 125.84(b)(2) or 
(c)(1). If your facility uses devices other than surface intake 
screens, you must monitor velocity at the point of entry through the 
device. You must monitor head loss or velocity during initial facility 
startup, and thereafter, at the frequency specified in your NPDES 
permit, but no less than once per quarter.
    (c) Visual or remote inspections. You must either conduct visual 
inspections or employ remote monitoring devices during the period the 
cooling water intake structure is in operation. You must conduct visual 
inspections at least weekly to ensure that any design and construction 
technologies required in Sec. 125.84(b)(4) and (5), or (c)(3) and (4) 
are maintained and operated to ensure that they will continue to 
function as designed. Alternatively, you must inspect via remote 
monitoring devices to ensure that the impingement and entrainment 
technologies are functioning as designed.


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

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


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

    (a) Permit application. As the Director, you must review materials 
submitted by the applicant under 40 CFR 122.21(r)(3) and Sec. 125.86 at 
the time of the initial permit application and before each permit 
renewal or reissuance.
    (1) After receiving the initial permit application from the owner 
or operator of a new facility, the Director must determine applicable 
standards in Sec. 125.84 to apply to the new facility. In addition, the 
Director must review materials to determine compliance with the 
applicable standards.
    (2) For each subsequent permit renewal, the Director must review 
the application materials and monitoring data to determine whether 
requirements, or additional requirements, for design and construction 
technologies or operational measures should be included in the permit.
    (3) For Track II facilities, the Director may review the 
information collection proposal plan required by 
Sec. 125.86(c)(2)(iii). The facility may initiate sampling and data 
collection activities prior to receiving comment from the Director.
    (b) Permitting requirements. Section 316(b) requirements are 
implemented for a facility through an NPDES permit. As the Director, 
you must determine, based on the information submitted by the new 
facility in its permit application, the appropriate requirements and 
conditions to include in the permit based on the track (Track I or 
Track II) the new facility has chosen to comply with. The following 
requirements must be included in each permit:
    (1) Cooling water intake structure requirements. At a minimum, the 
permit conditions must include the performance standards that implement 
the requirements of Sec. 125.84(b)(1), (2), (3), (4) and (5); 
Sec. 125.84(c)(1), (2), (3) and (4); or Sec. 125.84(d)(1) and (2). In 
determining compliance with proportional flow requirement in 
Secs. 125.84(b)(3)(ii); (c)(2)(ii); and (d)(2)(ii), the director must 
consider anthropogenic factors (those not considered ``natural'') 
unrelated to the new facility's cooling water intake structure that can 
influence the occurrence and location of a thermocline. These include 
source water inflows, other water withdrawals, managed water uses, 
wastewater discharges, and flow/level management practices (e.g., some 
reservoirs release water from below the surface, close to the deepest 
areas).
    (i) For a facility that chooses Track I, you must review the Design 
and Construction Technology Plan required in Sec. 125.86(b)(4) to 
evaluate the suitability and feasibility of the technology proposed to 
minimize impingement mortality and entrainment of all life stages of 
fish and shellfish. In the first permit issued, you must put a 
condition requiring the facility to reduce impingement mortality and 
entrainment commensurate with the implementation of the technologies in 
the permit. Under subsequent permits, the Director must review the 
performance of the technologies implemented and require additional or 
different design and construction technologies, if needed to minimize 
impingement mortality and entrainment of all life stages of fish and 
shellfish. In addition, you must consider whether more stringent 
conditions are reasonably necessary in accordance with Sec. 125.84(e).
    (ii) For a facility that chooses Track II, you must review the 
information submitted with the Comprehensive

[[Page 65345]]

Demonstration Study information required in Sec. 125.86(c)(2), evaluate 
the suitability of the proposed design and construction technologies 
and operational measures to determine whether they will reduce both 
impingement mortality and entrainment of all life stages of fish and 
shellfish to 90 percent or greater of the reduction that could be 
achieved through Track I. If you determine that restoration measures 
are appropriate at the new facility for consideration of impacts other 
than impingement mortality and entrainment, you must review the 
Evaluation of Proposed Restoration Measures and evaluate whether the 
proposed measures will maintain the fish and shellfish in the waterbody 
at a substantially similar level to that which would be achieved 
through Sec. 125.84(b)(1) and (2). In addition, you must review the 
Verification Monitoring Plan in Sec. 125.86(c)(2)(iv)(D) and require 
that the proposed monitoring begin at the start of operations of the 
cooling water intake structure and continue for a sufficient period of 
time to demonstrate that the technologies, operational measures and 
restoration measures meet the requirements in Sec. 125.84(d)(1). Under 
subsequent permits, the Director must review the performance of the 
additional and /or different technologies or measures used and 
determine that they reduce the level of adverse environmental impact 
from the cooling water intake structures to a comparable level that the 
facility would achieve were it to implement the requirements of 
Sec. 125.84(b)(1) and (2).
    (2) Monitoring conditions. At a minimum, the permit must require 
the permittee to perform the monitoring required in Sec. 125.87. You 
may modify the monitoring program when the permit is reissued and 
during the term of the permit based on changes in physical or 
biological conditions in the vicinity of the cooling water intake 
structure. The Director may require continued monitoring based on the 
results of the Verification Monitoring Plan in 
Sec. 125.86(c)(2)(iv)(D).
    (3) Record keeping and reporting. At a minimum, the permit must 
require the permittee to report and keep records as required by 
Sec. 125.88.

[FR Doc. 01-28968 Filed 12-17-01; 8:45 am]
BILLING CODE 6560-50-P