[Federal Register Volume 68, Number 118 (Thursday, June 19, 2003)]
[Rules and Regulations]
[Pages 36749-36755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15518]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 125

[FRL-7514-9]
RIN 2040-AD85


National Pollutant Discharge Elimination System--Amendment of 
Final 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 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Water Act (CWA) for new facilities that use water withdrawn from 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 instituted 
national technology-based performance requirements applicable to the 
location, design, construction, and capacity of cooling water intake 
structures at new facilities. These 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 final rule is effective on July 21, 2003. For judicial 
review purposes, this final rule is promulgated as of 1 p.m. Eastern 
Standard Time (EST) on July 3, 2003, as provided in 40 CFR 23.2 and 
23.7.

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 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withdrawn for cooling purposes.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 129.29(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.

----------------------------------------------------------------------------------------------------------------
                                         Examples of          Standard industrial       North American Industry
             Category                regulated entities      classification codes            Codes (NAIC)
----------------------------------------------------------------------------------------------------------------
Federal, State and Local            Operators of steam    4911 and 493..............  221111, 221112, 221113,
 Government.                         electric generating                               221119, 221121, 221122,
                                     point source                                      221111, 221112, 221113,
                                     dischargers that                                  221119, 221121, 221122
                                     employ cooling
                                     water intake
                                     structures.
Industry..........................  Operators of          See below.................  See below
                                     industrial 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          0133......................  111991, 11193
                                     production.
                                    Metal mining........  1011......................  21221
                                    Oil and gas           1311, 1321................  211111, 211112
                                     extraction
                                     (Excluding offshore
                                     and coastal
                                     subcategories).
                                    Mining and quarrying  1474......................  212391
                                     of 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          2211......................  31321
                                     products.

[[Page 36750]]

 
                                    Lumber and wood       2415, 2421, 2436, 2493....  321912, 321113, 321918,
                                     products, except                                  321999, 321212, 321219
                                     furniture.
                                    Paper and allied      2611, 2621, 2631, 2676....  3221, 322121, 32213,
                                     products.                                         322121, 322122, 32213,
                                                                                       322291
                                    Chemical and allied   28 (except 2895, 2893,      325 (except 325182, 32591,
                                     products.             2851, and 2879).            32551, 32532)
                                    Petroleum refining    2911, 2999................  32411, 324199
                                     and related
                                     industries.
                                    Rubber and            3011, 3069................  326211, 31332, 326192,
                                     miscellaneous                                     326299
                                     plastics products.
                                    Stone, clay, glass,   3241......................  32731
                                     and concrete
                                     products.
                                    Primary metal         3312, 3313, 3315, 3316,     324199, 331111, 331112,
                                     industries.           3317, 3334, 3339, 3353,     331492, 331222, 332618,
                                                           3363, 3365, 3366.           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                                        333922, 22651, 333923,
                                     machinery and                                     33312
                                     computer equipment.
                                    Transportation        3724, 3743, 3764..........  336412, 333911, 33651,
                                     equipment.                                        336416
                                    Measuring,            3861......................  333315, 325992
                                     analyzing, 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.
----------------------------------------------------------------------------------------------------------------

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. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing at 
the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 
B102, 1301 Constitution Ave., NW, Washington, DC. The EPA Docket Center 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Water 
Docket is (202) 566-2426.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the docket facility identified in Unit I.B. 
Once in the system, select ``search,'' then key in the appropriate 
docket identification number.

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

    On December 18, 2001, EPA published a final rule implementing 
section 316(b) of the Clean Water Act 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 reviewed 
the final rule text and believes that the regulatory language did not 
correctly reflect EPA's intent with respect to three issues. On 
December 26, 2002, EPA published a direct final rule (67 FR 78948) 
amending the text of the December 2001 final rule. EPA published a 
companion proposed rule on the same day as the direct final rule (67 FR 
78956). The proposed rule invited comment on the substance of the 
direct final rule. The proposed rule stated that if EPA received 
adverse comment by January 27, 2003, the direct final rule would not 
take effect and EPA would publish a notice in the Federal Register 
withdrawing the direct final rule before the March 26, 2003, effective

[[Page 36751]]

date. EPA subsequently received adverse comment on the direct final 
rule, and withdrew the direct final rule on March 19, 2003 (68 FR 
14164). Today's rulemaking constitutes EPA's final action on the 
proposed rule. With this final action, EPA is addressing and responding 
to the adverse comments received on the proposed rule and the direct 
final rule.
    The legal authority, background, and basis for the December 2001 
rule are discussed in the Federal Register notice of rulemaking (66 FR 
65256, December 18, 2001). 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 mainly cover existing facilities.

III. Summary of the Final Rule

    This rule makes minor changes to the regulations at 40 CFR 125.80, 
National Pollutant Discharge Elimination System: Regulations Addressing 
Cooling Water Intake Structures for New Facilities published on 
December 18, 2001 (66 FR 65256). The changes will clarify three 
technical issues on velocity monitoring, authority to require 
additional design and construction technologies, and procedures 
governing requests for less stringent alternative requirements.

A. Velocity Monitoring

    The first revision to the regulatory text relates to velocity 
monitoring. In the final rule for cooling water intake structures at 
new facilities, EPA required that velocity be monitored 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 infeasible, 
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 relates 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 specified that additional design and construction technologies or 
operational measures are required if, ``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 
specified that those technologies are required if, ``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 required 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

[[Page 36752]]

entrainment. Cross-referencing this other section of the regulations is 
not technically correct, 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 40 CFR 125.85 to the Track II performance requirements at 
40 CFR 125.84(d), this action deletes 40 CFR 125.84(d)(1)(ii) because 
it is unnecessary and confusing. In addition, the paragraph 40 CFR 
125.84(d)(1) and the subparagraph (d)(1)(i) have been combined with 
some modifications because a separate subparagraph is no longer needed.

IV. Response to Comments

    EPA received one set of comments on the direct final and companion 
proposed rules published on December 26, 2002, (67 FR 78948 and 78956) 
from Riverkeeper, Inc. on behalf of 16 environmental organizations. 
This group of environmental organizations are petitioners in a suit 
filed against EPA in the U.S. Court of Appeals in the Second Circuit 
(Case No. 02-4005) challenging EPA's final Phase I rule for new 
facilities. Riverkeeper, et al. submitted as their comments the brief 
that they filed in their challenge to the December 18, 2001, Phase I 
final regulations (Brief for the Environmental Petitioners, December 4, 
2002). Riverkeeper et al.'s comments did not specifically object to the 
technical changes in the direct final rule; rather, they objected to 
the underlying provisions in the final Phase I rule that are related to 
the technical corrections. Riverkeeper et al. filed their brief to 
preserve their ability to have the objectionable provisions remanded to 
EPA should they succeed in their challenge of the Phase I rule. EPA 
also understands that Riverkeeper et al. intend to consolidate any 
petition for review of this rule with the pending litigation in the 
Second Circuit. EPA believes it responded to Riverkeeper et al.'s 
comments articulated in their brief in EPA's brief filed in the Second 
Circuit on April 4, 2003, and in the record for the Phase I rule. Thus, 
EPA includes in the record for this rule the brief it filed in the 
Second Circuit in the Phase I litigation, all other briefs filed in 
that litigation, and the entire public record on the National Pollutant 
Discharge Elimination System: Regulations Addressing Cooling Water 
Intake Structures for New Facilities, Final Rule (Docket ID W-00-03).

V. Statutory and Executive Orders Reviews

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 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;
    (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, impose no additional costs or result in additional 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. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act 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 final 
rule does not substantively change the December 18, 2001, final rule 
for new facilities (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. 
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

[[Page 36753]]

alternative requirements. It would affect the same facilities as the 
December 2001 rule, impose no additional costs or result in additional 
benefits beyond those already projected, and would not reduce the level 
of environmental protection projected.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
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 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector, in any one year. 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.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This rule merely makes three 
minor technical revisions to the December 2001 Phase I final 
regulations for new facilities. 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, impose no additional costs or result in 
additional 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 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, impose no additional 
costs or result in additional benefits beyond those already projected, 
and would not reduce the level of environmental protection projected. 
This rule will 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

[[Page 36754]]

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, impose no additional costs or result in the 
additional 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 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, Section12(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 
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 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 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, impose no additional costs or result in additional 
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 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 July 21, 2003.

List of Subjects in 40 CFR Part 125

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

    Dated: June 13, 2003.
Christine Todd Whitman,
Administrator.

0
For the reasons set forth in the preamble, chapter I of title 40 of the 
Code of Federal Regulations is amended as follows:

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

0
1. The authority citation for part 125 continues to read as follows:

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


Sec.  125.83  [Amended]

0
2. Section 125.83 is amended by removing the definition for ``Minimum 
ambient source water surface elevation.''

0
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:

[[Page 36755]]

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 
still contribute unacceptable stress to the protected species , 
critical habitat of those species, or 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 still 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 any fishery management agency(ies) 
along with data and information from other sources.
* * * * *

0
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
* * * * *

[FR Doc. 03-15518 Filed 6-18-03; 8:45 am]
BILLING CODE 6560-50-P