[Federal Register Volume 67, Number 248 (Thursday, December 26, 2002)]
[Rules and Regulations]
[Pages 78948-78955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32610]



[[Page 78947]]

-----------------------------------------------------------------------

Part VI





Environmental Protection Agency





-----------------------------------------------------------------------



40 CFR Part 125



National Pollutant Discharge Elimination System--Amendment of Final 
Regulations Addressing Cooling Water Intake Structures for New 
Facilities; Rule and Proposed Rule

  Federal Register / Vol. 67, No. 248 / Thursday, December 26, 2002 / 
Rules and Regulations  

[[Page 78948]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 125

[FRL-7430-4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: Today's direct final rule makes minor changes to EPA's final 
rule published December 18, 2001 implementing 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Clean Water Act (CWA) for new facilities that use water withdrawn from 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 for cooling. The December 2001 rule established 
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. EPA is making several 
minor changes to the December 2001 rule because, in several instances, 
the final rule text does not reflect the Agency's intent.

DATES: This direct final rule is effective on March 26, 2003 without 
further notice, unless EPA receives adverse written comment by January 
27, 2003. If EPA receives such comment, it will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that this rule will not take effect.

ADDRESSES: Comments may be submitted electronically, by mail, or 
through hand delivery/courier. Follow the detailed instructions as 
provided in Unit I.B. of the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Martha Segall, USEPA Office of Water 
by phone at (202) 566-1041 or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Regulated Entities

    This direct final rule applies to new greenfield 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. Today's rule does not apply to existing 
facilities, major modifications to existing facilities that would be 
``new sources'' under 40 CFR 122.29(b) as that term is used in the 
effluent guidelines and standards program, or facilities that employ 
cooling water intake structures in the offshore oil and gas extraction 
point source category as defined under 40 CFR 435.10 and 40 CFR 435.40.
    The following table is not intended to be exhaustive; rather, it 
provides a guide for readers regarding entities likely to be regulated 
by this action. The table lists the types of entities that EPA is now 
aware could potentially be regulated by this action. Other types of 
entities not listed in the table could also be regulated. To determine 
whether your facility is regulated by this action, you should carefully 
examine the applicability criteria at 40 CFR 125.81. If you have 
questions about the applicability of this action to a particular 
entity, consult the person listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

----------------------------------------------------------------------------------------------------------------
                                                                  Standard
                                                                 Industrial      North American INdustry Codes
          Category            Examples of Regulated Entities   Classification                (NAIC)
                                                                   Codes
----------------------------------------------------------------------------------------------------------------
Federal, State and Local      Operators of steam electric     4911 and 493...  221111, 221112, 221113, 221119,
 Government.                   generatingpoint source                           221121, 221122, 221111, 221112,
                               dischargers that employ                          221113, 221119, 221121, 221122
                               cooling water intake
                               structures.
Industry....................  Operators of industrial point   See below......  See below
                               source dischargers that
                               employ cooling water intake
                               structures..
                              Steam electric generating.....  4911 and 493...  221111, 221112, 221113, 221119,
                                                                                221121, 221122, 221111, 221112,
                                                                                221113, 221119, 221121, 221122
                              Agricultural production.......  0133...........  111991, 11193
                              Metal mining..................  1011...........  21221
                              Oil and gas extraction          1311, 1321.....  211111, 211112
                               (Excluding offshore and
                               coastal subcategories).
                              Mining and quarrying of         1474...........  212391
                               nonmetallic minerals.
                              Food and kindred products.....  2046, 2061,      311221, 311311, 311312, 311313,
                                                               2062, 2063,      311222, 311225, 31214
                                                               2075, 2085.
                              Tobacco products..............  2141...........  312229, 31221
                              Textile mill products.........  2211...........  31321
                              Lumber and wood products,       2415, 2421,      321912, 321113, 321918, 321999,
                               except furniture.               2436, 2493.      321212, 321219
                              Paper and allied products.....  2611, 2621,      3221, 322121, 32213, 322121,
                                                               2631, 2676.      322122, 32213, 322291
                              Chemical and allied products..  28 (except       325 (except products 325182,
                                                               2895, 2893,      32591, 32551, 32532)
                                                               2851, and
                                                               2879).
                              Petroleum refining and related  2911, 2999.....  32411, 324199
                               industries.
                              Rubber and miscellaneous        3011, 3069.....  326211, 31332, 326192, 326299
                               plastics products.
                              Stone, clay, glass, and         3241...........  32731
                               concrete products.

[[Page 78949]]

 
                              Primary metal industries......  3312, 3313,      324199, 331111, 331112, 331492,
                                                               3315, 3316,      331222, 332618, 331221, 22121,
                                                               3317, 3334,      331312, 331419, 331315, 331521,
                                                               3339, 3353,      331524, 331525
                                                               3363, 3365,
                                                               3366.
                              Fabricated metal products,      3421, 3499.....  332211, 337215, 332117, 332439,
                               except machinery and                             33251, 332919, 339914, 332999
                               transportation equipment.
                              Industrial and commercial       3523, 3531.....  333111, 332323, 332212, 333922,
                               machinery and computer                           22651, 333923, 33312
                               equipment.
                              Transportation equipment......  3724, 3743,      336412, 333911, 33651, 336416
                                                               3764.
                              Measuring, analyzing, and       3861...........  333315, 325992
                               controlling instruments;
                               photographic, medical, and
                               optical goods; watches and
                               clocks.
                              Electric, gas, and sanitary     4911, 4931,      221111, 221112, 221113, 221119,
                               services.                       4939, 4961.      221121, 221122, 22121, 22133
                              Educational services..........  8221...........  61131
                              Engineering, accounting,        8731...........  54171
                               research, management and
                               related services.
----------------------------------------------------------------------------------------------------------------

B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OW-2002-0052. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
The official public docket is the collection of materials that is 
available for public viewing at the Water Docket in the EPA Docket 
Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., 
Washington, DC. The EPA Docket Center Public Reading Room is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Water Docket is (202) 566-
2426.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as confidential business information (CBI) and 
other information whose disclosure is restricted by statute, which is 
not included in the official public docket, will not be available for 
public viewing in EPA's electronic public docket. EPA's policy is that 
copyrighted material will not be placed in EPA's electronic public 
docket but will be available only in printed, paper form in the 
official public docket. To the extent feasible, publicly available 
docket materials will be made available in EPA's electronic public 
docket. When a document is selected from the index list in EPA Dockets, 
the system will identify whether the document is available for viewing 
in EPA's electronic public docket. Although not all docket materials 
may be available electronically, you may still access any of the 
publicly available docket materials through the docket facility 
identified in Unit I.A.1. EPA intends to work towards providing 
electronic access to all of the publicly available docket materials 
through EPA's electronic public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    For additional information about EPA's electronic public docket 
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

C. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. Please submit with your comments any references cited 
in your comments. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' EPA is not 
required to consider these late comments; however, late comments may be 
considered if time permits. If you wish to submit CBI or information 
that is otherwise protected by statute, please follow the instructions 
in Unit I.C. Do not use EPA Dockets or e-mail to submit CBI or 
information protected by statute.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact

[[Page 78950]]

information in the body of your comment. Also include this contact 
information on the outside of any disk or CD ROM you submit, and in any 
cover letter accompanying the disk or CD ROM. This ensures that you can 
be identified as the submitter of the comment and allows EPA to contact 
you in case EPA cannot read your comment due to technical difficulties 
or needs further information on the substance of your comment. EPA's 
policy is that EPA will not edit your comment, and any identifying or 
contact information provided in the body of a comment will be included 
as part of the comment that is placed in the official public docket, 
and made available in EPA's electronic public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet Home Page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID No. OW-
2002-0052. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to [email protected], Attention Docket ID No. OW-2002-0052. In contrast to 
EPA's electronic public docket, EPA's e-mail system is not an 
``anonymous access'' system. If you send an e-mail comment directly to 
the Docket without going through EPA's electronic public docket, EPA's 
e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in Unit 1.B.2. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By Mail. Send an original and three (3) copies of your comments 
to the ``Water Docket,'' U.S. Environmental Protection Agency, 
Mailcode: 4101T, 1200 Pennsylvania Ave., NW., Washington, DC, 20460, 
Attention Docket ID No. OW-2002-0052.
    3. By Hand Delivery or Courier. Deliver your comments to: Water 
Docket, EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave., 
NW, Washington, DC, Attention Docket ID No. OW-2002-0052. Such 
deliveries are only accepted during the Docket's normal hours of 
operation as identified in Unit 1.A.1.

D. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically through EPA's electronic public docket or by e-mail. 
Send information identified as CBI by mail only to the following 
address: Office of Science and Technology, Mailcode 4303T, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, Attention: Martha Segall/Docket ID No. OW-2002-
0052.
    You may claim information that you submit to EPA as CBI by marking 
any part or all of that information as CBI (if you submit CBI on disk 
or CD ROM, mark the outside of the disk or CD ROM as CBI and then 
identify electronically within the disk or CD ROM the specific 
information that is CBI). Information so marked will not be disclosed 
except in accordance with procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

II. Legal Authority, Purpose and Scope of Today's Direct Final Rule

    On December 18, 2001, EPA published a final rule implementing 
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 for cooling purposes. EPA 
often refers to the final rule implementing section 316(b) for new 
facilities as the ``Phase I rule'' (this term is used to avoid 
confusion with other phases of the section 316(b) rulemaking that cover 
existing facilities). The legal authority, background, and basis for 
the Phase I rule are discussed in the Federal Register notice and in 
the record for the rule. See 66 FR 65256, December 18, 2001. EPA 
reviewed the final rule text and believes that the regulatory language 
did not correctly reflect its intent with respect to three issues. EPA 
is, therefore, making several minor changes to the regulatory text. 
This document does not reopen the final rule in any respect other than 
the changes discussed here. EPA does not solicit comment on any issues 
except for the three discrete ones discussed here.

III. Discussion of Direct Final Rulemaking

    EPA is publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no adverse comment 
since we are correcting technical errors and not otherwise amending the 
regulatory text of the December 2001 Phase I final rule. However, in 
the ``Proposed Rules'' section of today's Federal Register, we are 
publishing a separate document that will serve as the proposal to amend 
the Phase I final rule if adverse comments are filed. This rule will be 
effective on March 26, 2003 without further notice unless we receive 
adverse comment by January 27, 2003. If EPA receives adverse comment on 
one or more distinct amendment(s), paragraph(s), or section(s) of this 
rulemaking, the Agency will publish a timely withdrawal in the Federal 
Register indicating which provisions will become effective and which 
provisions are being withdrawn due to adverse comment. Any distinct 
amendment, paragraph, or section of today's rulemaking for which we do 
not receive adverse comment will become effective on the date set in 
this direct final rule, notwithstanding any adverse comment on any 
other distinct amendment, paragraph or section of today's rule. If 
adverse comment is received, we will address all public comments in a 
subsequent final rule. We will not institute a second comment period on 
this action. Any parties interested in commenting must do so at this 
time.

IV. Corrections to Regulatory Text

A. Velocity Monitoring

    The first revision to the regulatory text relates to velocity 
monitoring. In the final rule for cooling water intake

[[Page 78951]]

structures at new facilities, EPA required monitoring velocity at 
cooling water intake structures at least once per quarter. In 
monitoring velocity, facilities that employ surface intake screens are 
required to monitor head loss across the intake screens at the 
``minimum ambient source water surface elevation.'' EPA qualified that 
language in the requirement by adding a parenthetical phrase that would 
allow the minimum ambient source water surface elevation to be 
determined using the Director's best professional judgment based on 
available hydrological data. See 40 CFR 125.87(b). However, EPA also 
defined ``minimum ambient source water surface elevation'' at 40 CFR 
125.83 to mean ``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.'' EPA further 
defined each of these low flows in terms of a temporal and hydrological 
basis. See 66 FR 65339, December 18, 2001.
    EPA understands that ambient source water surface elevations 
fluctuate through time, and it would be difficult, if not unfeasible, 
to coordinate the measurements of head loss to the time when these 
minimum ambient source water surface elevations were occurring in the 
waterbody. It was EPA's intent that the velocity be measured at a time 
that is predicted, based on knowledge of the hydrology of the 
waterbody, to be a time of reasonable low flow representative of the 
low surface elevations that might occur during the months that comprise 
each quarter. For example, in tidal waters the velocity measurement 
should be taken at a low tide. If tide tables and/or other records 
indicate that the surface elevations in a particular month are 
typically lower than in other months, the facility should measure 
intake velocity at one of the lowest predicted tides during that 
particular month. In reservoirs where water levels are drawn down at 
certain parts of the year, the facility should measure intake velocity 
immediately after a drawdown or release has occurred. In freshwater 
rivers and streams, the facility should measure intake velocity during 
the month that typically has the lowest flows. Such monitoring should 
occur at a time when flows are not temporarily elevated due to recent 
storm events. The Director should determine and specify the appropriate 
time of measurement in the facility's NPDES permit based on available 
existing hydrological information and information submitted by the 
owner of the facility with its permit application. Accordingly, to 
conform the regulatory text to EPA's intent, EPA believes that the 
regulatory language at 40 CFR 125.87 is sufficient and that the 
definition of ``minimum ambient source water surface elevation'' is no 
longer needed. Therefore, today's action will only delete the 
definition of ``minimum ambient source water surface elevation'' at 40 
CFR 125.83.

B. Director's Authority To Require Additional Design and Construction 
Technologies or Operational Measures in Track I

    The second set of revisions to the regulatory text relate to the 
Director's authority to require additional design and construction 
technologies or operational measures in Track I. There are five 
provisions at issue: 40 CFR 125.84(b)(4)(ii), (b)(4)(iii), (b)(5)(ii), 
(c)(3)(ii), and (c)(3)(iii). Four of these provisions specify 
circumstances where design and construction technologies or operational 
measures for minimizing impingement mortality of fish and shellfish are 
required. At 40 CFR 125.84(b)(4)(ii) and (c)(3)(ii), facilities are 
required to select and implement design and construction technologies 
or operational measures for minimizing impingement mortality of fish 
and shellfish if ``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.'' The language should 
have read, ``Based on information submitted by any fishery management 
agency(ies) or other relevant information, there are migratory and/or 
sport or commercial species of impingement concern to the Director that 
pass through the hydraulic zone of influence of the cooling water 
intake structure.'' Paragraphs (b)(4)(iii) and (c)(3)(iii) require a 
facility to select and implement design and construction technologies 
or operational measures for minimizing impingement mortality if ``It is 
determined by the Director or any fishery management agency(ies)...'' 
The language should have read, ``It is determined by the Director, 
based on information submitted by any fishery management agency(ies) or 
other relevant information, that....'' The fifth provision, paragraph 
(b)(5)(ii), addresses circumstances where design and construction 
technologies or operational measures are required for minimizing 
entrainment of entrainable life stages of fish and shellfish. The 
language used in this provision was similar to that in paragraphs 
(b)(4)(ii), (b)(4)(iii), (c)(3)(ii), and (c)(3)(iii) and therefore 
requires similar corrections.
    All of these revisions are necessary because the decision of what 
to require under section 316(b) of the CWA belongs to the Director. 
Although EPA did not intend to delegate the decisionmaking to another 
agency, the Director may obtain information from another agency to make 
a decision. Therefore, today's action amends the requirements at 40 CFR 
125.84(b)(4)(ii), (b)(4)(iii), (b)(5)(ii), (c)(3)(ii), and (c)(3)(iii) 
to reflect the intent that the information of another agency informs 
the decision of the Director.

C. Deletion of Inappropriate Cross Reference in the Alternative 
Requirements Section

    The third issue relates to drafting errors in the alternative 
requirements section of the rule. The regulation at 40 CFR 125.85 in 
paragraphs (a)(2) and (3) currently refers to local water resources 
``not addressed under Sec.  125.84(d)(1)(i)'' intending to refer to 
local water resource issues other than impingement or entrainment. 
Cross-referencing this other section of the regulations is not 
technically correct, however, because subsection (d) of Sec.  125.84 is 
part of Track II while the alternative requirements provision applies 
to either Track I or Track II. Therefore, this action deletes the 
reference to 40 CFR 125.84(d)(1)(i) and substitutes language 
referencing ``significant adverse impacts on local water resources 
other than impingement or entrainment.'' Similarly, to eliminate any 
uncertainty regarding applicability of the alternative requirements 
provision at Sec.  125.85 to the Track II performance requirements at 
Sec.  125.84(d), this action deletes Sec.  125.84(d)(ii) because it is 
unnecessary and confusing.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Reviews

    Under Executive Order 12866, (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector or the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;

[[Page 78952]]

    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.''
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and 
therefore is not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This rule merely makes three minor technical revisions to the December 
2001 Phase I final regulations for cooling water intake structures. 
These minor changes will clarify the Agency's intent on velocity 
monitoring, authority to require additional design and construction 
technologies, and procedures for seeking less stringent alternative 
requirements. It would affect the same facilities as the December 2001 
rule, would have no additional costs or benefits beyond those already 
projected, and would not reduce the level of environmental protection 
projected.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

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 the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this rule does not contain a Federal 
mandates that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector, in any one year. This rule merely makes three minor technical 
revisions to the December 2001 Phase I final regulations for cooling 
water intake structures. These minor changes will clarify the Agency's 
intent on velocity monitoring, authority to require additional design 
and construction technologies, and procedures for seeking less 
stringent alternative requirements. It would affect the same facilities 
as the December 2001 rule, would have no additional costs or benefits 
beyond those already projected, and would not reduce the level of 
environmental protection projected. Thus, today's rule is not subject 
to the requirements of section 202 and 205 of the UMRA. For the same 
reasons, EPA has also determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. Thus, today's rule is not subject to the requirements of 
section 203 of the UMRA.

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.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business based on the 
Small Business Administration's size standards; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impact of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This direct 
final rule does not substantively change the December 18, 2001 Phase I 
final rule (66 FR 65256), nor does it impose a significant economic 
impact on a substantial number of small entities. This rule merely 
makes three minor technical revisions to the December 2001 rule for 
cooling water intake structures. These minor changes will clarify the 
Agency's intent on velocity monitoring, authority to require additional 
design and construction technologies, and procedures for seeking less 
stringent alternative requirements. It would affect the same facilities 
as the December 2001 rule, would have no additional costs or benefits 
beyond those already projected, and would not reduce the level of 
environmental protection projected.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure

[[Page 78953]]

``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 direct 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. This rule merely 
makes three minor technical revisions to the December 2001 Phase I 
final regulations for cooling water intake structures. These minor 
changes will clarify the Agency's intent on velocity monitoring, 
authority to require additional design and construction technologies, 
and procedures for seeking less stringent alternative requirements. It 
would affect the same facilities as the December 2001 rule, would have 
no additional costs or benefits beyond those already projected, and 
would not reduce the level of environmental protection projected. Thus 
Executive Order 13132 does not apply to this rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' ``Policies that have Tribal 
implications'' 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 direct 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. 
This rule merely makes three minor technical revisions to the final 
regulations for cooling water intake structures. These minor changes 
will clarify the Agency's intent on velocity monitoring, authority to 
require additional design and construction technologies, and procedures 
for seeking less stringent alternative requirements. It would affect 
the same facilities as the December 2001 rule, would have no additional 
costs or benefits beyond those already projected, and would not reduce 
the level of environmental protection projected. This rule does not 
affect Tribes in any way in the foreseeable future. Thus, Executive 
Order 13175 does not apply to this rule.

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 or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This final 
rule is not economically significant 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. This rule merely makes three minor technical revisions to the 
final regulations for cooling water intake structures. These minor 
changes will clarify the Agency's intent on velocity monitoring, 
authority to require additional design and construction technologies, 
and procedures for seeking less stringent alternative requirements. It 
would affect the same facilities as the December 2001 rule, would have 
no additional costs or benefits beyond those already projected, and 
would not reduce the level of environmental protection projected. 
Therefore, it is not subject to Executive Order 13045.

H. Executive Order 13211: Energy Effects

    This direct final rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it 
is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (``NTTAA'') of 1995 (Public Law 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 standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
direct final rule does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

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

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. 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.
    EPA does not expect that this final rule would have an exclusionary 
effect, deny persons the benefit of the NPDES program or subject 
persons to discrimination because of their race, color, or national 
origin. This rule merely makes three minor technical revisions to the 
final regulations for cooling water intake structures. These minor 
changes will clarify the Agency's intent on velocity monitoring, 
authority to require additional design and construction technologies, 
and procedures for seeking less stringent alternative requirements. It 
would affect

[[Page 78954]]

the same facilities as the December 2001 rule, would have no additional 
costs or benefits beyond those already projected, and would not reduce 
the level of environmental protection projected.

K. Executive Order 13158: Marine Protected Areas

    Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to 
``expeditiously propose new science-based regulations, as necessary, to 
ensure appropriate levels of protection for the marine environment.'' 
EPA may take action to enhance or expand protection of existing marine 
protected areas and to establish or recommend, as appropriate, new 
marine protected areas. The purpose of the Executive Order is to 
protect the significant natural and cultural resources within the 
marine environment, which means ``those areas of coastal and ocean 
waters, the Great Lakes and their connecting waters, and submerged 
lands thereunder, over which the United States exercises jurisdiction, 
consistent with international law.''
    Today's direct final rule will not enhance or expand protection nor 
reduce the level of environmental protection of existing marine 
protected areas. This rule merely makes three minor technical revisions 
to the December 2001 Phase I final regulations for cooling water intake 
structures. These minor changes will clarify the Agency's intent on 
velocity monitoring, authority to require additional design and 
construction technologies, and procedures for seeking less stringent 
alternative requirements. It would affect the same facilities as the 
December 2001 rule, would have no additional costs or benefits beyond 
those already projected, and would not reduce the level of 
environmental protection projected.

L. Plain Language Directive

    Executive Order 12866 encourages agencies to write all rules in 
plain language. EPA has written this direct final rule in plain 
language to make this rule and the final rule at 66 FR 65256, December 
18, 2001 easier to understand.

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 a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective March 26, 2003.

List of Subjects in 40 CFR Part 125

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

    Dated: December 19, 2002.
Christine Todd Whitman,
Administrator.
    For the reasons set forth in the preamble, chapter I of title 40 of 
the Code of Federal Regulations is amended as follows:

PART 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. In Sec.  125.83, remove the definition for ``Minimum ambient 
source water surface elevation.''

    3. Section 125.84 is amended by revising paragraphs (b)(4)(ii), 
(b)(4)(iii), (b)(5)(ii), (c)(3)(ii), (c)(3)(iii), and (d)(1) to read as 
follows:


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

* * * * *
    (b) * * *
    (4) * * *
    (ii) Based on information submitted by any fishery management 
agency(ies) or other relevant information, there are migratory and/or 
sport or commercial species of impingement concern to the Director that 
pass through the hydraulic zone of influence of the cooling water 
intake structure; or
    (iii) It is determined by the Director, based on information 
submitted by any fishery management agency(ies) or other relevant 
information, 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) * * *
    (ii) Based on information submitted by any fishery management 
agency(ies) or other relevant information, there are or would be 
undesirable cumulative stressors affecting entrainable life stages of 
species of concern to the Director and the Director determines 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;
* * * * *
    (c) * * *
    (3) * * *
    (ii) Based on information submitted by any fishery management 
agency(ies) or other relevant information, there are migratory and/or 
sport or commercial species of impingement concern to the Director that 
pass through the hydraulic zone of influence of the cooling water 
intake structure; or
    (iii) It is determined by the Director, based on information 
submitted by any fishery management agency(ies) or other relevant 
information, that the proposed facility, after meeting the technology-
based performance requirements in paragraphs (c)(1) and (2) of this 
section, would contribute unacceptable stress to the protected species, 
critical habitat of those species, or species of concern;
* * * * *
    (d) * * *
    (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. 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 identifies as species of concern. In 
identifying such species, the Director may consider information 
provided by national, state, or tribal fishery management agencies with 
responsibility for fisheries potentially affected by your cooling water 
intake structure along with data and information from other sources.
* * * * *

[[Page 78955]]


    4. Section 125.85 is amended by revising paragraphs (a)(2) and (3) 
to read as follows:


Sec.  125.85  May alternative requirements be authorized?

    (a) * * *
    (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 the costs 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 other than impingement or entrainment, 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 other than impingement or entrainment, or 
significant adverse impacts on local energy markets; and
* * * * *

    5. Section 125.89 is amended by revising paragraph (b)(2) to read 
as follows:


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

* * * * *
    (b) * * *
    (2) Monitoring conditions. At a minimum, the permit must require 
the permittee to perform the monitoring required in Sec.  125.87. [For 
facilities required to perform the velocity monitoring in Sec.  
125.87(b), you should determine and specify the appropriate time of 
measurement in the permit based on available existing hydrological 
information and information submitted by the owner of the facility with 
its permit application.] 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).
* * * * *
[FR Doc. 02-32610 Filed 12-24-02; 8:45 am]
BILLING CODE 6560-50-P