[Federal Register Volume 69, Number 131 (Friday, July 9, 2004)]
[Rules and Regulations]
[Pages 41576-41693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4130]



[[Page 41575]]

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Part II





Environmental Protection Agency





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40 CFR Parts 9, 122 et al.



National Pollutant Discharge Elimination System--Final Regulations To 
Establish Requirements for Cooling Water Intake Structures at Phase II 
Existing Facilities; Final Rule

  Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules 
and Regulations  

[[Page 41576]]


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ENVIRONMENTAL PROTECTION AGENCY

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

[FRL-7625-9]
RIN 2040-AD62


National Pollutant Discharge Elimination System--Final 
Regulations to Establish Requirements for Cooling Water Intake 
Structures at Phase II Existing Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today's final rule implements section 316(b) of the Clean 
Water Act (CWA) for certain existing power producing facilities that 
employ a cooling water intake structure and are designed to withdraw 50 
million gallons per day (MGD) or more of water from rivers, streams, 
lakes, reservoirs, estuaries, oceans, or other waters of the United 
States for cooling purposes. This final rule constitutes Phase II of 
EPA's section 316(b) regulation development and establishes national 
requirements, and procedures for implementing those requirements, 
applicable to the location, design, construction, and capacity of 
cooling water intake structures at these facilities. The rule applies 
to existing facilities that, as their primary activity, both generate 
and transmit electric power or generate electric power but sell it to 
another entity for transmission. The national requirements, which will 
be implemented through National Pollutant Discharge Elimination System 
(NPDES) permits, are based on the best technology available to minimize 
the adverse environmental impact associated with the use of cooling 
water intake structures.
    Today's final rule establishes performance standards that are 
projected to reduce impingement mortality by 80 to 95 percent and, if 
applicable, entrainment by 60 to 90 percent. With the implementation of 
today's final rule, EPA intends to minimize the adverse environmental 
impact of cooling water intake structures by reducing the number of 
aquatic organisms lost as a result of water withdrawals associated with 
these structures.

DATES: This regulation is effective September 7, 2004. For judicial 
review purposes, this final rule is promulgated as of 1 p.m. Eastern 
Standard Time (EST) on July 23, 2004, as provided in 40 CFR 23.2.

ADDRESSES: The docket for today's final rule is available for public 
inspection at the Water Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room B102, 1301 Constitution Ave., NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: For additional technical information 
contact Martha Segall at (202) 566-1041 or Debra Hart at (202) 566-
6379. The e-mail address for the above contacts is [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. What Entities Are Regulated by This Action?

    This final rule applies to Phase II existing facilities that are 
point sources; as their primary activity both generate and transmit 
electric power or generate electric power for sale to another entity 
for transmission; use or propose to use one or more cooling water 
intake structures with a total design intake flow of 50 million gallons 
per day (MGD) or more to withdraw water from waters of the United 
States; and use 25 percent of water withdrawn exclusively for cooling 
water purposes. This rule defines ``existing facility'' as any facility 
that commenced constructions on or before January 17, 2002, and any 
modification of, or any addition of a unit at such a facility that does 
not meet the definition of a new facility at Sec.  125.83.
    This rule defines the term ``cooling water intake structure'' to 
mean the total physical structure and any associated constructed 
waterways used to withdraw cooling water from waters of the United 
States. The cooling water intake structure extends from the point at 
which water is withdrawn from the surface water source up to, and 
including, the intake pumps.

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                                          Examples of regulated    Standard Industrial Classification (SIC)     North American Industry Classification
               Category                         entities                             codes                               System (NAICS) codes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal, State, and Local Government..  Steam electric            4911 and 493..............................  221112, 221113, 221119, 221121, 221122
                                         generating point source
                                         dischargers that employ
                                         cooling water intake
                                         structures.
Industry..............................  Steam electric            4911 and 493..............................  221112, 221113, 221119, 221121, 221122
                                         generating industrial
                                         point source
                                         dischargers that employ
                                         cooling water intake
                                         structures (this
                                         includes utilities and
                                         nonutilities).
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    This exhibit is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be regulated by this 
action. This exhibit 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 exhibit could also be regulated. To determine whether 
your facility is regulated by this action, you should carefully examine 
the applicability criteria in Sec.  125.91 of the rule. If you have 
questions regarding the applicability of this action to a particular 
entity, consult the person listed for technical information in the 
preceding FOR FURTHER INFORMATION CONTACT section.

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 2002-0049. 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 information 
claimed as Confidential Business Information (CBI) or other information 
the disclosure of which 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. To view docket materials,

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please call ahead to schedule an appointment. Every user is entitled to 
copy 266 pages per day before incurring a charge. The Docket may charge 
15 cents for each page over the 266-page limit plus an administrative 
fee of $25.00.
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 section 
I.B.1. Once in the system, select ``search,'' then key in the 
appropriate docket identification number.

C. Supporting Documentation

    The final regulation is supported by three major documents:
    1. Economic and Benefits Analysis for the Final Section 316(b) 
Phase II Existing Facilities Rule (EPA-821-R-04-005), hereafter 
referred to as the Economic and Benefits Analysis. This document 
presents the analysis of compliance costs, closures, energy supply 
effects, and benefits associated with the final rule.
    2. Regional Analysis for the Final Section 316(b) Phase II Existing 
Facilities Rule (EPA-821-R-04-006), hereafter referred to as the 
Regional Analysis Document or the Regional Study(ies) Document. This 
document examines cooling water intake structure impacts and regulatory 
benefits at the regional level.
    3. Technical Development Document for the Final Section 316(b) 
Phase II Existing Facilities Rule (EPA-821-R-04-007), hereafter 
referred to as the Technical Development Document. This document 
presents detailed information on the methods used to develop unit costs 
and describes the set of technologies that may be used to meet the 
final rule's requirements.

D. Table of Contents

I. General Information
    A. What Entities Are Regulated By This Action?
    B. How Can I Get Copies Of This Document and Other Related 
Information?
    C. Supporting Documentation
    D. Table of Contents
II. Scope and Applicability of the Final Rule
    A. What is an ``Existing Facility'' for Purposes of the Section 
316(b) Phase II Rule
    B. What is ``Cooling Water'' and What is a ``Cooling Water 
Intake Structure?''
    C. Is My Facility Covered if it Withdraws from Waters of the 
United States?
    D. Is My Facility Covered if it is a Point Source Discharger?
    E. What Cooling Water Use and Design Intake Flow Thresholds 
Result in an Existing Facility Being Subject to This Rule?
III. Legal Authority, Purpose, and Background of Today's Regulation
    A. Legal Authority
    B. Purpose of Today's Regulation
    C. Background
IV. Environmental Impacts Associated With Cooling Water Intake 
Structures
V. Description of the Final Rule
VI. Summary of Most Significant Revisions to the Proposed Rule
    A. Data Updates
    B. Regulatory Approach, Calculation Baseline, and Measuring 
Compliance
VII. Basis for the Final Regulation
    A. Why is EPA Establishing a Multiple Compliance Alternative 
Approach for Determining Best Technology Available for Minimizing 
Adverse Environmental Impact?
    B. Why and How Did EPA Establish the Performance Standards at 
These Levels?
    C. What Is the Basis for the Five Compliance Alternatives That 
EPA Selected for Establishing Best Technology Available?
    D. How Has EPA Assessed Economic Practicability?
    E. What are the Major Options Considered for the Final Rule and 
Why did EPA Reject Them?
    F. What is the Role of Restoration and Trading Under Today's 
Final Rule?
VIII. Summary of Major Comments and Responses to the Proposed Rule 
and Notice of Data Availability (NODA)
    A. Scope and Applicability
    B. Environmental Impact Associated with Cooling Water Intake 
Structures
    C. Performance Standards
    D. Site-Specific Approach
    E. Implementation
    F. Restoration
    G. Costs
    H. Benefits
    I. EPA Legal Authority
IX. Implementation
    A. When Does the Final Rule Become Effective?
    B. What Information Must I Submit to the Director When I Apply 
for My Reissued NPDES Permit?
    C. How Will the Director Determine the Appropriate Cooling Water 
Intake Structure Requirements?
    D. What Will I Be Required to Monitor?
    E. How Will Compliance Be Determined?
    F. What Are the Respective Federal, State, and Tribal Roles?
    G. Are Permits for Existing Facilities Subject to Requirements 
Under Other Federal Statutes?
    H. Alternative Site-Specific Requirements
X. Engineering Cost Analysis
    A. Technology Cost Modules
    B. Model Facility Cost Development
    C. Facility Flow Modifications
XI. Economic Analysis
    A. Final Rule Costs
    B. Final Rule Impacts
XII. Benefits Analysis
    A. Introduction
    B. Regional Study Design
    C. The Physical Impacts of Impingement and Entrainment
    D. National Benefits of Rule
    E. Other Considerations
XIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Executive Order 13158: Marine Protected Areas
    L. Congressional Review Act

II. Scope and Applicability of the Final Rule

    This rule applies to owners and operators of existing facilities, 
as defined in Sec.  125.93 of today's rule that meet all of the 
following criteria:
     The facility's primary activity is to generate electric 
power. The facility either transmits the electric power itself, or 
sells the electric power to another entity for transmission;
     The facility is a point source that uses or proposes to 
use one or more cooling water intake structures, including a cooling 
water intake structure operated by an independent supplier that 
withdraws water from waters of the United States and provides cooling 
water to the facility by any sort of contract or other arrangement;
     The cooling water intake structure(s) withdraw(s) cooling 
water from waters of the United States and at least twenty-five (25) 
percent of the water withdrawn is used exclusively for cooling purposes 
measured on an average annual basis;
     The facility is a point source; and
     The cooling water intake structures have a total design 
intake flow of 50

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million gallons per day (MGD) or greater.
    In the case of a Phase II existing facility that is co-located with 
a manufacturing facility, only that portion of the cooling water flow 
that is used by the Phase II facility to generate electricity for sale 
to another entity will be considered when determining whether the 50 
MGD and 25 percent criteria are met. Facilities subject to this final 
rule are referred to as ``Phase II existing facilities.'' Existing 
facilities with design flows below the 50 MGD threshold, as well as 
most existing manufacturing facilities, offshore seafood processors, 
and offshore and coastal oil and gas extraction facilities are not 
subject to this rule. Those facilities have different characteristics 
as compared to the large, power-generating facilities subject to 
today's rule. If an existing facility is a point source and has or is 
required to have an NPDES permit, but does not meet the applicability 
thresholds in today's rule, it is subject to permit conditions 
implementing section 316(b) of the CWA set by the permit director on a 
case-by-case basis, using best professional judgment. EPA expects to 
address at least some of these facilities in a separate rulemaking, 
referred to as Phase III.
    In the preamble to the proposed rule EPA indicated that its intent 
was to exclude from regulation under the Phase II rule existing 
facilities whose primary business is manufacturing. See, e.g., 67 FR 
17124 (April 9, 2002). At the same time, in Sec.  125.91(a)(3) of the 
proposed rule, the applicability criteria covered facilities that both 
generate and transmit electric power, or generate electric power but 
sell it to another entity for transmission. Numerous commenters 
indicated concerns that, as proposed, Sec.  125.91(a)(3) would not 
clearly exclude all existing manufacturing facilities from the Phase II 
rule since some facilities generate electric power primarily for their 
own use, but transmit or sell any surplus. Therefore, for the final 
rule, EPA revised Sec.  125.91 so that it reaches only those existing 
facilities that generate and transmit or sell electric power as their 
primary activity. The final rule does not apply to existing 
manufacturing facilities, including manufacturing facilities that 
generate power for their own use and transmit any surplus power, or 
sell it for transmission, provided the primary activity of the facility 
is not electric power generation.

A. What Is an ``Existing Facility'' for Purposes of the Section 316(b) 
Phase II Rule?

    In today's rule, EPA is defining the term ``existing facility'' to 
include any facility that commenced construction as described in 40 CFR 
122.29(b)(4) \1\ on or before January 17, 2002. EPA established January 
17, 2002 as the date for distinguishing new facilities from existing 
ones because that is the effective date of the Phase I new facility 
rule. In addition, EPA is defining the term ``existing facility'' in 
this rule to include modifications and additions to such facilities, 
the construction of which commences after January 17, 2002, that do not 
meet the definition of a new facility at 40 CFR 125.83, the definition 
used to define the scope of the Phase I rule. That definition states:
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    \1\ Construction is commenced if the owner or operator has 
undertaken certain installation and site preparation activities that 
are part of a continuous on-site construction program, and it 
includes entering into certain specified binding contractual 
obligations as one criterion (40 CFR 122.29(b)(4)).

    ``New facility means any building, structure, facility, or 
installation that meets the definition of a `new source' or `new 
discharger' in [other NPDES regulations] and is a greenfield or 
stand-alone facility; commences construction after January 17, 2002; 
and uses either a newly constructed cooling water intake structure, 
or an existing cooling water intake structure whose design capacity 
is increased to accommodate the intake of additional cooling water. 
New facilities include only `greenfield' and `stand-alone' 
facilities. A greenfield facility is a facility that is constructed 
at a site at which no other source is located or that totally 
replaces the process or production equipment at an existing facility 
(see 40 CFR 122.29(b)(1)(i) and (ii). A stand-alone facility is a 
new, separate facility that is constructed on property where an 
existing facility is located and whose processes are substantially 
independent of the existing facility at the same site (see 40 CFR 
122.29(b)(1)(iii). New facility does not include new units that are 
added to a facility for purposes of the same general industrial 
operation (for example, a new peaking unit at an electrical 
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generating station).'' \2\

    \2\ The Phase I rule also listed examples of facilities that 
would be ``new'' facilities and facilities that would ``not be 
considered a `new facility' in two numbered paragraphs. These read 
as follows:
    ``(1) Examples of `new facilities' include, but are not limited 
to: the following scenarios:
    (i) A new facility is constructed on a site that has never been 
used for industrial or commercial activity. It has a new cooling 
water intake structure for its own use.
    (ii) A facility is demolished and another facility is 
constructed in its place. The newly-constructed facility uses the 
original facility's cooling water intake structure, but modifies it 
to increase the design capacity to accommodate the intake of 
additional cooling water.
    (iii) A facility is constructed on the same property as an 
existing facility, but is a separate and independent industrial 
operation. The cooling water intake structure used by the original 
facility is modified by constructing a new intake bay for the use of 
the newly constructed facility or is otherwise modified to increase 
the intake capacity for the new facility.
    (2) Examples of facilities that would not be considered a `new 
facility' include, but are not limited to, the following scenarios:
    (i) A facility in commercial or industrial operation is modified 
and either continues to use its original cooling water intake 
structure or uses a new or modified cooling water intake structure.
    (ii) A facility has an existing intake structure. Another 
facility (a separate and independent industrial operation), is 
constructed on the same property and connects to the facility's 
cooling water intake structure behind the intake pumps, and the 
design capacity of the cooling water intake structure has not been 
increased. This facility would not be considered a `new facility' 
even if routine maintenance or repairs that do not increase the 
design capacity were performed on the intake structure.''
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    The preamble to the final Phase I rule discusses this definition at 
66 FR 65256; 65258-65259; 65285-65287, December 18, 2001.
    EPA included in its Phase II proposed rule a freestanding 
definition of ``existing facility.'' That definition read as follows:
    ``Existing facility means any facility that commenced construction 
before January 17, 2002; and

    (1) Any modification of such a facility;
    (2) Any addition of a unit at such a facility for purposes of the 
same industrial operation;
    (3) Any addition of a unit at such a facility for purposes of a 
different industrial operation, if the additional unit uses an existing 
cooling water intake structure and the design capacity of the intake 
structure is not increased; or
    (4) Any facility constructed in place of such a facility, if the 
newly constructed facility uses an existing cooling water intake 
structure whose design intake flow is not increased to accommodate the 
intake of additional cooling water.'' 67 FR 17221.
    Upon further consideration, EPA has decided that it would be 
clearest to define existing facility primarily by stating that any 
facility that is not a new facility under 40 CFR 125.83 is an existing 
facility for purposes of this subpart. Accordingly, the language in 
this final rule is intended to be clear and consistent with EPA's 
definition of new facility in the Phase I rule at 40 CFR 125.83. In 
addition, the definition in today's regulation is also intended to 
ensure that sources excluded from the definition of new facility in the 
Phase I rule are captured by the definition of existing facility for 
the purposes of today's rule. At the same time, EPA believes that the 
approach taken in

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today's rule is identical in terms of effect to the approach in the 
proposed rule. Thus, the approach taken in today's final rule is in no 
way intended to change the scope of the rule as compared with the 
proposal as far as the facilities treated as ``existing'' facilities 
under the rule. The change is in drafting technique, not in meaning.
    The facility encompassed by today's regulation is the point source 
that uses a cooling water intake structure to generate electric power. 
This is because the requirements of CWA section 316(b) are implemented 
through NPDES permits, which are issued only to point source 
dischargers of pollutants to waters of the United States. A point 
source generating electric power would be subject to Phase I or Phase 
II even if the cooling water intake structure it uses is located 
elsewhere. Similarly, modifications or additions to the cooling water 
intake structure (or even the total replacement of an existing cooling 
water intake structure with a new one) does not convert an otherwise 
unchanged existing facility into a new facility, regardless of the 
purpose of such changes (e.g., to comply with today's rule or to 
increase capacity). Rather, the determination as to whether a facility 
is new or existing focuses on the power-generating point source itself, 
i.e., whether it is a greenfield facility or a stand-alone facility. 
This focus on the point source discharger is consistent with section 
316(b), which by its express terms applies only to point sources.
    Under this rule, an existing power generating facility that uses a 
cooling water intake structure and repowers by either replacing or 
modifying an existing generating unit would remain subject to 
regulation as a Phase II existing facility, unless the existing 
facility were completely demolished and another facility constructed in 
its place that used either a new intake structure or the existing 
structure with an increased design capacity. For example, the following 
facility modifications or additions would result in a facility being 
characterized as an existing facility under today's rule:
     An existing power generating facility undergoes a 
modification of its process short of total replacement of the process 
and concurrently increases the design capacity of its existing cooling 
water intake structures;
     An existing power generating facility builds a new process 
at its site for purposes of the same industrial operation and 
concurrently increases the design capacity of its existing cooling 
water intake structures;
     An existing power generating facility completely rebuilds 
its process but uses the existing cooling water intake structure with 
no increase in design capacity.
    Phase II existing facilities subject to today's rule include point 
sources that do not presently use, but propose to use, cooling water 
intake structures and do not meet the definition of new facility at 
Sec.  125.83. This is appropriate because there may be some cases in 
which an existing facility historically withdrew its cooling water from 
a municipal or other source, but then decides to withdraw cooling water 
from a water of the United States. In these cases, the facility may not 
previously have met all of the criteria applicable to an existing 
facility under today's rule (i.e., the facility did not previously 
withdraw cooling waters from a water of the United States) but may make 
changes that would place the facility within the scope of today's rule. 
A comparable situation would be when a facility previously relied on 
units that do not require cooling water, and then adds or modifies a 
unit for purposes of the same industrial operation (i.e., power 
generation) such that cooling water is subsequently required. For 
example, an existing power generating facility that adds a new 
generating unit at the same site for purposes of repowering and 
concurrently increases the design capacity of its existing cooling 
water intake structure(s), or adds a new intake structure where it did 
not previously need one, for example when converting a gas turbine to a 
combined cycle unit, would be considered an existing facility.
    In the preamble to the Phase I rule, EPA noted that it had defined 
``existing facility'' in a manner consistent with existing NPDES 
regulations with a limited exception. EPA noted that it had generally 
deferred regulation of new sources constructed on a site at which an 
existing source is located until the Agency had completed analysis of 
its survey data on existing facilities. 66 FR 65286. Accordingly, the 
Phase I rule treated almost all changes to existing facilities for 
purposes of the same industrial operation as existing facilities. These 
included the addition of new generating units at the same site, even 
where they required an increase in cooling water intake structure 
design capacity or the construction of a new cooling water intake 
structure, as well as the complete demolition of an existing facility 
and its replacement with a new facility, so long as it did not increase 
the design capacity of the cooling water intake structure. The only 
exception was the demolition of an existing facility and its 
replacement with a new facility accompanied by an increase in design 
capacity of the cooling water intake structure. As the preamble 
explained: ``The definition of a new facility in the final rule applies 
to a facility that is repowered only if the existing facility has been 
demolished and another facility is constructed in its place, and 
modifies the existing cooling water intake structure to increase the 
design intake capacity.'' Id.\2a\ By contrast, the Phase I rule treated 
the addition of a new unit for purposes of a different industrial 
operation as an existing facility only if it used an existing cooling 
water intake structure whose design intake flow was not increased.
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    \2a\ Because they are part of the same ``industrial operation,'' 
such units are not ``stand-alone'' facilities for purposes of the 
``new facility'' definition. As the fifth sentence of the definition 
of ``new facility'' explains, they are categorically treated as 
``existing facilities'' regardless of any other considerations 
unless they completely replace an existing facility and its cooling 
water design intake capacity is increased. Accordingly, there is 
thus no need to make a determination whether they are 
``substantially independent'' of the existing facility at the same 
site under the fourth sentence of the definition in order to 
determine whether they are ``existing'' or ``new facilities.'' The 
fifth sentence alone controls that question.
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    The Phase II proposed rule continued this approach in its 
definition of ``existing facility.'' It continued to treat all changes 
to existing facilities for purposes of the same industrial operation as 
an existing facility unless the change was a complete demolition and 
replacement of the facility accompanied by an increase in cooling water 
intake design capacity. It also continued to treat the addition of new 
units for purposes of a different industrial operation differently, 
only allowing them to be ``existing facilities'' if they used an 
existing cooling water intake structure and did not increase its design 
intake flow. 67 FR 17221. In putting forth this proposed definition, 
EPA noted that it had collected data from a variety of sources, 
including survey data, specifically relating to repowering facilities. 
Id. at 17131-17135. It also made a point of explaining the wide variety 
of repowering activities that an existing facility could undertake 
under the proposed rule--anything short of demolition of an existing 
facility and its replacement with a new facility combined with 
increasing the design capacity of a cooling water intake structure--
while still being regulated as an ``existing facility'' rather than a 
``new facility.'' Id. at 17128.
    On the basis of the analysis of the survey data and other 
information in the record, the Agency now has concluded that it should 
adhere to its provisional

[[Page 41580]]

decision generally giving wide latitude to existing facilities to make 
changes or additions to their facilities at the same site. In 
particular, new units that are added to a facility for purposes of the 
same general industrial operation should be treated as existing 
facilities because limitations associated with an existing site make it 
inappropriate to subject such units to new facility requirements. These 
limitations include space, existing location on a waterbody, location 
in already congested areas which could affect (if Phase 1 requirements 
were applied) visibility impairment, highway and airport safety issues, 
noise abatement issues, salt drift and corrosion problems and 
additional energy requirements. Moreover, power generation facilities 
should not be discouraged from making any upgrade, modification, or 
repowering that would increase energy efficiency or supply out of 
concern that they would be considered a new facility for purposes of 
section 316(b). Additional benefits will be realized in terms of 
reducing industrial sprawl if incremental power generation is not 
discouraged at existing power generation sites. These considerations 
counsel in favor of treating new units locating at existing sites as 
existing rather than new facilities. EPA also noted when it promulgated 
the Phase I rule (see 66 FR 65286) that it is not feasible for the 
permit authority to judge whether the facility could have been located 
elsewhere for the purpose of determining whether the facility is 
subject to the new facility rules. Accordingly, EPA has decided to 
retain the Phase I definition's provision that a new facility does not 
include new units that are added to a facility for purposes of the same 
general industrial operation. As noted above, this decision is fully 
consistent with the approach to this issue laid out in the proposed 
Phase II rule.
    The final rule definition of ``existing facility'' is sufficiently 
broad that it encompasses facilities that will be addressed under the 
Phase III rule (e.g., existing power generating facilities with design 
flows below the 50 MGD threshold, certain existing manufacturing 
facilities, seafood processors, and offshore and coastal oil and gas 
extraction facilities). EPA notes, however, that these facilities are 
not covered under this rule because they do not meet the requirements 
of Sec.  125.91.

B. What Is ``Cooling Water'' and What Is a ``Cooling Water Intake 
Structure?''

    Today's rule adopts for Phase II existing facilities the same 
definition of a ``cooling water intake structure'' that applies to new 
facilities. A cooling water intake structure is defined as the total 
physical structure and any associated constructed waterways used to 
withdraw cooling water from waters of the United States. Under the 
definition in today's rule, the cooling water intake structure extends 
from the point at which water is withdrawn from the surface water 
source up to, and including, the intake pumps. Today's rule adopts the 
new facility rule's definition of ``cooling water'': Water used for 
contact or noncontact cooling, including water used for equipment 
cooling, evaporative cooling tower makeup, and dilution of effluent 
heat content. The definition specifies that the intended use of cooling 
water is to absorb waste heat rejected from the processes used, or 
auxiliary operations on the facility's premises. The definition also 
indicates that water used in a manufacturing process either before or 
after it is used for cooling is process water for both cooling and non-
cooling purposes and would not be considered cooling water for purposes 
of determining whether 25 percent or more of the flow is cooling water. 
This clarification is necessary because cooling water intake structures 
typically bring water into a facility for numerous purposes, including 
industrial processes; use as circulating water, service water, or 
evaporative cooling tower makeup water; dilution of effluent heat 
content; equipment cooling; and air conditioning. EPA notes that this 
clarification does not change the fact that only the intake water used 
exclusively for cooling purposes is counted when determining whether 
the 25 percent threshold in Sec.  125.91(a)(4) is met.
    This definition of ``cooling water intake structure'' differs from 
the definition provided in the 1977 Draft Guidance for Evaluating the 
Adverse Impact of Cooling Water Intake Structures on the Aquatic 
Environment: Section 316(b) P.L. 92-500 (U.S. EPA, 1977). The final 
rule definition clarifies that the cooling water intake structure 
includes the physical structure that extends from the point at which 
water is withdrawn from the surface water up to and including the 
intake pumps. Inclusion of the term ``associated constructed 
waterways'' in today's rule is intended to clarify that the definition 
includes those canals, channels, connecting waterways, and similar 
structures that may be built or modified to facilitate the withdrawal 
of cooling water. The explicit inclusion of the intake pumps in the 
definition reflects the key role pumps play in determining the capacity 
(i.e., dynamic capacity) of the intake. These pumps, which bring in 
water, are an essential component of the cooling water intake structure 
since without them the intake could not work as designed.

C. Is My Facility Covered if It Withdraws From Waters of the United 
States?

    The requirements finalized today apply to cooling water intake 
structures that have the design capacity to withdraw amounts of water 
equal to or greater than the specified intake flow threshold from 
``waters of the United States.'' Waters of the United States include 
the broad range of surface waters that meet the regulatory definition 
at 40 CFR 122.2, which includes lakes, ponds, reservoirs, nontidal 
rivers or streams, tidal rivers, estuaries, fjords, oceans, bays, and 
coves. These potential sources of cooling water may be adversely 
affected by impingement and entrainment.
    Some facilities discharge heated water to cooling ponds, then 
withdraw water from the ponds for cooling purposes. EPA recognizes that 
cooling ponds may, in certain circumstances, constitute part of a 
closed-cycled cooling system. See, e.g., 40 CFR 125.83. However, EPA 
does not intend this rule to change the regulatory status of cooling 
ponds. Cooling ponds are neither categorically included nor 
categorically excluded from the definition of ``waters of the United 
States'' at 40 CFR 122.2. EPA interprets 40 CFR 122.2 to give permit 
writers discretion to regulate cooling ponds as ``waters of the United 
States'' where cooling ponds meet the definition of ``waters of the 
United States.'' The determination whether a particular cooling pond is 
or is not a water of the United States is to be made by the permit 
writer on a case-by-case basis, informed by the principles enunciated 
in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army 
Corps of Engineers, 531 U.S. 159 (2001). Therefore, facilities that 
withdraw cooling water from cooling ponds that are waters of the United 
States and that meet today's other criteria for coverage (including the 
requirement that the facility has or will be required to obtain an 
NPDES permit) are subject to today's rule. The EPA and the U.S. Army 
Corps of Engineers have jointly issued jurisdictional guidance 
concerning the term ``waters of the United States'' in light of the 
Supreme Court's decision in Solid Waste Agency of Northern Cook County 
v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). A copy 
of that guidance was published as an Appendix to an Advanced Notice of 
Proposed

[[Page 41581]]

Rulemaking on the definition of the phrase ``waters of the U.S.,'' see 
68 FR 1991 (January 15, 2003), and may be obtained at (http://www.epa.gov/owow/wetlands/ANPRM-FR.pdf). Section 125.91(d) also 
provides, similar to the new facility rule, that facilities that obtain 
cooling water from a public water system or use treated effluent are 
not deemed to be using a cooling water intake structure for purposes of 
this rule.

D. Is My Facility Covered if It Is a Point Source Discharger?

    Today's rule applies only to facilities that are point sources 
(i.e., have an NPDES permit or are required to obtain one) because they 
discharge or might discharge pollutants, including storm water, from a 
point source to waters of the Unites States. This is the same 
requirement EPA included in the Phase I new facility rule at 40 CFR 
125.81(a)(1). Requirements for complying with section 316(b) will 
continue to be applied through NPDES permits.
    Based on the Agency's review of potential Phase II existing 
facilities that employ cooling water intake structures, the Agency 
anticipates that most existing power generating facilities that will be 
subject to this rule will control the intake structure that supplies 
them with cooling water, and discharge some combination of their 
cooling water, wastewater, and storm water to a water of the United 
States through a point source regulated by an NPDES permit. In this 
scenario, the requirements for the cooling water intake structure will 
be specified in the facility's NPDES permit. In the event that a Phase 
II existing facility's only NPDES permit is a general permit for storm 
water discharges, the Agency anticipates that the Director would write 
an individual NPDES permit containing requirements for the facility's 
cooling water intake structure. Alternatively, requirements applicable 
to cooling water intake structures could be incorporated into general 
permits. If requirements are placed into a general permit, they must 
meet the criteria set out at 40 CFR 122.28.
    The Agency also recognizes that some facilities that have or are 
required to have an NPDES permit might not own and operate the intake 
structure that supplies their facility with cooling water. For example, 
electric power-generating facilities operated by separate entities 
might be located on the same, adjacent, or nearby property(ies); one of 
these facilities might take in cooling water and then transfer it to 
other facilities prior to discharge of the cooling water to a water of 
the United States. Section 125.91(c) of today's rule addresses such a 
situation. It provides that use of a cooling water intake structure 
includes obtaining cooling water by any sort of contract or arrangement 
with one or more independent suppliers of cooling water if the supplier 
or suppliers withdraw water from waters of the United States but that 
is not itself a Phase II existing facility. This provision is intended 
to prevent facilities from circumventing the requirements of today's 
rule by creating arrangements to receive cooling water from an entity 
that is not itself a Phase II existing facility.
    In addressing facilities that have or are required to have an NPDES 
permit that do not directly control the intake structure that supplies 
their facility with cooling water, section 125.91(d) also provides, 
similar to the new facility rule, that facilities that obtain cooling 
water from a public water system or use treated effluent are not deemed 
to be using a cooling water intake structure for purposes of this rule.
    As EPA stated in the preamble to the final Phase I rule (66 FR 
65256 December 18, 2001), the Agency encourages the Director to closely 
examine scenarios in which a facility withdraws significant amounts of 
cooling water from waters of the United States but is not required to 
obtain an NPDES permit. As appropriate, the Director should apply other 
legal requirements, such as section 404 or 401 of the Clean Water Act, 
the Coastal Zone Management Act, the National Environmental Policy Act, 
the Endangered Species Act, or similar State or Tribal authorities to 
address adverse environmental impact caused by cooling water intake 
structures at those facilities.

E. What Cooling Water Use and Design Intake Flow Thresholds Result in 
an Existing Facility Being Subject to This Rule?

    This final rule applies to existing facilities that are point 
sources and use cooling water intake structures that (1) withdraw 
cooling water from waters of the United States and use at least twenty-
five (25) percent of the water withdrawn exclusively for cooling 
purposes, and (2) have a total design intake capacity of 50 MGD or more 
measured on an average annual basis (see Sec.  125.91). Today's rule 
further provides that where a Phase II existing facility is co-located 
with a manufacturing facility, only that portion of the cooling water 
intake flow that is used by the Phase II facility to generate 
electricity for sale to another entity will be considered for purposes 
of determining whether the 50 MGD and 25 percent criteria have been 
exceeded.
    EPA chose the 50 MGD threshold to focus the rule on the largest 
existing power generating facilities. EPA estimates that the 50 MGD 
threshold will subject approximately 543 of 902 (60 percent) existing 
power generating facilities to this final rule and will address 
approximately 90 percent of the total flow withdrawn by these 
facilities. EPA established the 50 MGD threshold because the regulation 
of existing facilities with flows of 50 MGD or greater in Phase II will 
address those existing power generating facilities with the greatest 
potential to cause or contribute to adverse environmental impact. In 
addition, EPA has limited data on impacts at facilities withdrawing 
less than 50 MGD. Deferring regulation of such facilities to Phase III 
provides an additional opportunity for the Agency to collect 
impingement and entrainment data for these smaller facilities.
    Similarly, because Phase II existing facilities typically use far 
more than 25 percent of the water they withdraw for cooling purposes, 
EPA established the 25 percent threshold to ensure that nearly all 
cooling water and the largest existing facilities using cooling water 
intake structures are addressed by today's requirements. As in the 
Phase I rule, water used for both cooling and non-cooling purposes does 
not count towards the 25 percent threshold. Thus, the rule does not 
discourage the reuse of cooling water as process water or vice versa. 
Water that serves as cooling water but is either previously or 
subsequently used as process water is not considered cooling water for 
purposes of determining the percentage of the water withdrawn that is 
used for cooling and whether that percentage equals or exceeds 25 
percent. Water withdrawn for non-cooling purposes includes water 
withdrawn for warming by liquified natural gas facilities and water 
withdrawn for public water systems by desalinization facilities.

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

A. Legal Authority

    Today's final rule is issued under the authority of sections 101, 
301, 304, 308, 316, 401, 402, 501, and 510 of the Clean Water Act 
(CWA), 33 U.S.C. 1251, 1311, 1314, 1318, 1326, 1341, 1342, 1361, and 
1370. This rule partially fulfills the obligations of the U.S. 
Environmental Protection Agency (EPA) under a consent decree in 
Riverkeeper, Inc. v. Leavitt, No. 93 Civ. 0314, (S.D.N.Y).

[[Page 41582]]

B. Purpose of Today's Regulation

    Section 316(b) of the CWA provides that any standard established 
pursuant to section 301 or 306 of the CWA and applicable to a point 
source must require that the location, design, construction, and 
capacity of cooling water intake structures reflect the best technology 
available (BTA) for minimizing adverse environmental impact. Today's 
rule establishes requirements reflecting the best technology available 
for minimizing adverse environmental impact, applicable to the 
location, design, construction, and capacity of cooling water intake 
structures at Phase II existing power generating facilities that have 
the design capacity to withdraw at least fifty (50) MGD of cooling 
water from waters of the United States and use at least twenty-five 
(25) percent of the water they withdraw exclusively for cooling 
purposes.

C. Background

1. The Clean Water Act
    The Federal Water Pollution Control Act, also known as the Clean 
Water Act (CWA), 33 U.S.C. 1251 et seq., seeks to ``restore and 
maintain the chemical, physical, and biological integrity of the 
nation's waters.'' 33 U.S.C. 1251(a). The CWA establishes a 
comprehensive regulatory program, key elements of which are (1) a 
prohibition on the discharge of pollutants from point sources to waters 
of the United States, except as authorized by the statute; (2) 
authority for EPA or authorized States or Tribes to issue National 
Pollutant Discharge Elimination System (NPDES) permits that regulate 
the discharge of pollutants; (3) requirements for limitations in NPDES 
permits based on effluent limitations guidelines and standards and 
water quality standards.
    Today's rule implements section 316(b) of the CWA as it applies to 
``Phase II existing facilities'' as defined in this rule. Section 
316(b) addresses the adverse environmental impact caused by the intake 
of cooling water, not discharges into water. Despite this special 
focus, the requirements of section 316(b) are closely linked to several 
of the core elements of the NPDES permit program established under 
section 402 of the CWA to control discharges of pollutants into 
navigable waters. For example, while effluent limitations apply to the 
discharge of pollutants by NPDES-permitted point sources to waters of 
the United States, section 316(b) applies to facilities subject to 
NPDES requirements that withdraw water from waters of the United States 
for cooling and that use a cooling water intake structure to do so.
    Section 402 of the CWA provides authority for EPA or an authorized 
State or Tribe to issue an NPDES permit to any person discharging any 
pollutant or combination of pollutants from a point source into waters 
of the United States. Forty-five States and one U.S. territory are 
authorized under section 402(b) to administer the NPDES permitting 
program. NPDES permits restrict the types and amounts of pollutants, 
including heat, that may be discharged from various industrial, 
commercial, and other sources of wastewater. These permits control the 
discharge of pollutants primarily by requiring dischargers to meet 
effluent limitations established pursuant to section 301 or section 
306. Effluent limitations may be based on promulgated Federal effluent 
limitations guidelines, new source performance standards, or the best 
professional judgment of the permit writer. Limitations based on these 
guidelines, standards, or best professional judgment are known as 
technology-based effluent limits. Where technology-based effluent 
limits are inadequate to ensure attainment of water quality standards 
applicable to the receiving water, section 301(b)(1)(C) of the Clean 
Water Act requires permits to include more stringent limits based on 
applicable water quality standards. NPDES permits also routinely 
include monitoring and reporting requirements, standard conditions, and 
special conditions. In addition, NPDES permits contain conditions to 
implement the requirements of section 316(b). Section 301 of the CWA 
prohibits the discharge of any pollutant by any person, except in 
compliance with specified statutory requirements, including section 
402.
    Section 510 of the Clean Water Act provides, that except as 
provided in the Clean Water Act, nothing in the Act shall (1) preclude 
or deny the right of any State or political subdivision thereof to 
adopt or enforce any requirement respecting control or abatement of 
pollution; except that if a limitation, prohibition or standard of 
performance is in effect under the Clean Water Act, such State or 
political subdivision may not adopt or enforce any other limitation 
prohibition or standard of performance which is less stringent than the 
limitation prohibition or standard of performance under the Act. EPA 
interprets this to reserve for the States authority to implement 
requirements that are more stringent than the Federal requirements 
under state law. PUD No. 1 of Jefferson County. Washington Dep't of 
Ecology, 511 U.S. 700, 705 (1994).
    Sections 301, 304, and 306 of the CWA require that EPA develop 
technology-based effluent limitations guidelines and new source 
performance standards that are used as the basis for technology-based 
minimum discharge requirements in wastewater discharge permits. EPA 
issues these effluent limitations guidelines and standards for 
categories of industrial dischargers based on the pollutants of concern 
discharged by the industry, the degree of control that can be attained 
using various levels of pollution control technology, consideration of 
various economic tests appropriate to each level of control, and other 
factors identified in sections 304 and 306 of the CWA (such as non-
water quality environmental impacts including energy impacts). EPA has 
promulgated regulations setting effluent limitations guidelines and 
standards under sections 301, 304, and 306 of the CWA for more than 50 
industries. See 40 CFR parts 405 through 471. EPA has established 
effluent limitations guidelines and standards that apply to most of the 
industry categories that use cooling water intake structures (e.g., 
steam electric power generation, iron and steel manufacturing, pulp and 
paper manufacturing, petroleum refining, and chemical manufacturing).
    Section 316(b) states, in full:

    Any standard established pursuant to section 301 or section 306 
of [the Clean Water] Act and applicable to a point source shall 
require that the location, design, construction, and capacity of 
cooling water intake structures reflect the best technology 
available for minimizing adverse environmental impact.

    The phrase ``best technology available'' in CWA section 316(b) is 
not defined in the statute, but its meaning can be understood in light 
of similar phrases used elsewhere in the CWA. See Riverkeeper v. EPA, 
slip op. at 11 (2nd Cir. Feb. 3, 2004) (noting that the cross-reference 
in CWA section 316(b) to CWA section 306 ``is an invitation to look to 
section 306 for guidance in discerning what factors Congress intended 
the EPA to consider in determining the `best technology available' '' 
for new sources).
    In sections 301 and 306, Congress directed EPA to set effluent 
discharge standards for new sources based on the ``best available 
demonstrated control technology'' and for existing sources based on the 
``best available technology economically achievable.'' For new sources, 
section 306(b)(1)(B) directs EPA to establish ``standards of 
performance.'' The phrase ``standards of performance'' under section 
306(a)(1) is defined as being the effluent reduction that is

[[Page 41583]]

``achievable through application of the best available demonstrated 
control technology, processes, operating methods or other alternatives 
* * *.'' This is commonly referred to as ``best available demonstrated 
technology'' or ``BADT.'' For existing dischargers, section 
301(b)(1)(A) requires the establishment of effluent limitations based 
on ``the application of best practicable control technology currently 
available.'' This is commonly referred to as ``best practicable 
technology'' or ``BPT.'' Further, section 301(b)(2)(A) directs EPA to 
establish effluent limitations for certain classes of pollutants 
``which shall require the application of the best available technology 
economically achievable.'' This is commonly referred to as ``best 
available technology'' or ``BAT.'' Section 301 specifies that both BPT 
and BAT limitations must reflect determinations made by EPA under Clean 
Water Act section 304. Under these provisions, the discharge of 
pollutants from point sources is based not on the impact of the 
discharge on the receiving waters, but instead upon the capabilities of 
the equipment or ``control technologies'' available to control those 
discharges.
    The phrases ``best available demonstrated technology''; and ``best 
available technology''--like ``best technology available'' in CWA 
section 316(b)--are not defined in the statute. However, section 304 of 
the CWA specifies factors to be considered in establishing the best 
practicable control technology currently available, and best available 
technology.
    For best practicable control technology currently available, the 
CWA directs EPA to consider

the total cost of application of technology in relation to the 
effluent reduction benefits to be achieved from such application, 
and shall also take into account the age of the equipment and 
facilities involved, the process employed, the engineering aspects 
of the application of various types of control techniques, process 
changes, non-water quality environmental impact (including energy 
requirements), and such other factors as [EPA] deems appropriate.

33 U.S.C. 1314(b)(1)(b).
    For ``best available technology,'' the CWA directs EPA to consider:

the age of equipment and facilities involved, the process employed, 
the engineering aspects * * * of various types of control 
techniques, process changes, the cost of achieving such effluent 
reduction, non-water quality environmental impacts (including energy 
requirements), and such other factors as [EPA] deems appropriate.

33 U.S.C. 1314(b)(2)(B).
    Section 316(b) expressly refers to section 301, and the phrase 
``best technology available'' is very similar to ``best technology 
available'' in that section. These facts, coupled with the brevity of 
section 316(b) itself, prompted EPA to look to section 301 and, 
ultimately, section 304 for guidance in determining the ``best 
technology available to minimize adverse environmental impact'' of 
cooling water intake structures for existing Phase II facilities.
    By the same token, however, there are significant differences 
between section 316(b) and sections 301 and 304. See Riverkeeper, Inc. 
v. United States Environmental Protection Agency, slip op. at 13, (2nd 
Cir. Feb. 3, 2004) (``not every statutory directive contained [in 
sections 301 and 306 ] is applicable'' to a section 316(b) rulemaking). 
Section 316(b) requires that cooling water intake structures reflect 
the best technology available for minimizing adverse environmental 
impact. In contrast to the effluent limitations provisions, the object 
of the ``best technology available'' is explicitly articulated by 
reference to the receiving water: To minimize adverse environmental 
impact in the waters from which cooling water is withdrawn. This 
difference is reflected in EPA's past practices in implementing 
sections 301, 304, and 316(b). While EPA has established effluent 
limitations guidelines based on the efficacy of one or more 
technologies to reduce pollutants in wastewater in relation to cost 
without necessarily considering the impact on the receiving waters, EPA 
has previously considered the costs of technologies in relation to the 
benefits of minimizing adverse environmental impact in establishing 
316(b) limits which historically have been done on a case-by case 
basis. In Re Public Service Co. of New Hampshire, 10 ERC 1257 (June 17, 
1977); In Re Public Service Co. of New Hampshire, 1 EAD 455 (Aug. 4, 
1978); Seacoast Anti-Pollution League v. Costle, 597 F. 2d 306 (1st 
Cir. 1979).
    For this Phase II rulemaking, EPA therefore interprets CWA section 
316(b) as authorizing EPA to consider not only technologies but also 
their effects on and benefits to the water from which the cooling water 
is withdrawn. Based on these two considerations, EPA has established in 
today's rule national requirements for facilities to install technology 
that is technically available, economically practicable, and cost-
effective while at the same time authorizing a range of technologies 
that achieve comparable reductions in adverse environmental impact.
2. Consent Decree
    Today's final rule partially fulfills EPA's obligation to comply 
with a consent decree, as amended. The Second Amended Consent Decree, 
which is relevant to today's rule, was filed on November 25, 2002, in 
the United States District Court, Southern District of New York, in 
Riverkeeper, Inc. v. Leavitt, No. 93 Civ 0314, a case brought against 
EPA by a coalition of individuals and environmental groups. The 
original Consent Decree, filed on October 10, 1995, provided that EPA 
was to propose regulations implementing section 316(b) by July 2, 1999, 
and take final action with respect to those regulations by August 13, 
2001. Under subsequent interim orders, the Amended Consent Decree filed 
on November 22, 2000, and the Second Amended Consent Decree, EPA has 
divided the rulemaking into three phases and is working under new 
deadlines. As required by the Second Amended Consent Decree, on 
November 9, 2001, EPA took final action on a rule governing cooling 
water intake structures used by new facilities (Phase I). 66 FR 65255 
(December 18, 2001). The Second Amended Consent Decree requires that 
EPA take final action by February 16, 2004, with respect to Phase II 
regulations that are ``applicable to, at a minimum: (1) Existing 
utilities (i.e., facilities that both generate and transmit electric 
power) that employ a cooling water intake structure, and whose intake 
flow levels exceed a minimum threshold to be determined by EPA during 
the Phase II rulemaking process; and (2) existing nonutility power 
producers (i.e., facilities that generate electric power but sell it to 
another entity for transmission) that employ a cooling water intake 
structure, and whose intake flow levels exceed a minimum threshold to 
be determined by EPA during the Phase II rulemaking process.'' The 
consent decree further requires that EPA propose regulations governing 
cooling water intake structures used, at a minimum, by smaller-flow 
power plants and facilities in four industrial sectors (pulp and paper 
making, petroleum and coal products manufacturing, chemical and allied 
manufacturing, and primary metal manufacturing) by November 1, 2004, 
and take final action by June 1, 2006 (Phase III).
3. What Other EPA Rulemakings and Guidance Have Addressed Cooling Water 
Intake Structures?
    In April 1976, EPA published a final rule under section 316(b) that 
addressed cooling water intake structures. 41 FR

[[Page 41584]]

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

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

    In 1977, fifty-eight electric utility companies challenged those 
regulations, arguing that EPA had failed to comply with the 
requirements of the Administrative Procedure Act (APA) in promulgating 
the rule. Specifically, the utilities argued that EPA had neither 
published the Development Document in the Federal Register nor properly 
incorporated the document into the rule by reference. The United States 
Court of Appeals for the Fourth Circuit agreed and, without reaching 
the merits of the regulations themselves, remanded the rule. 
Appalachian Power Co. v. Train, 566 F.2d 451 (4th Cir. 1977). EPA later 
withdrew part 402. 44 FR 32956 (June 7, 1979). The regulation at 40 CFR 
401.14, which reiterates the statutory requirement, remains in effect.
    Since the Fourth Circuit remanded EPA's section 316(b) regulations 
in 1977, NPDES permit authorities have made decisions implementing 
section 316(b) on a case-by-case, site-specific basis. EPA published 
draft guidance addressing section 316(b) implementation in 1977. See 
Draft Guidance for Evaluating the Adverse Impact of Cooling Water 
Intake Structures on the Aquatic Environment: Section 316(b) P.L. 92-
500 (U.S. EPA, 1977). This draft guidance described the studies 
recommended for evaluating the impact of cooling water intake 
structures on the aquatic environment and recommended a basis for 
determining the best technology available for minimizing adverse 
environmental impact. The 1977 section 316(b) draft guidance states, 
``The environmental-intake interactions in question are highly site-
specific and the decision as to best technology available for intake 
design, location, construction, and capacity must be made on a case-by-
case basis.'' (Section 316(b) Draft Guidance, U.S. EPA, 1977, p. 4). 
This case-by-case approach was also consistent with the approach 
described in the 1976 Development Document referenced in the remanded 
regulation.
    The 1977 section 316(b) draft guidance suggested a general process 
for developing information needed to support section 316(b) decisions 
and presenting that information to the permitting authority. The 
process involved the development of a site-specific study of the 
environmental effects associated with each facility that uses one or 
more cooling water intake structures, as well as consideration of that 
study by the permitting authority in determining whether the facility 
must make any changes for minimizing adverse environmental impact. 
Where adverse environmental impact is present, the 1977 draft guidance 
suggested a stepwise approach that considers screening systems, size, 
location, capacity, and other factors.
    Although the draft guidance described the information that should 
be developed, key factors that should be considered, and a process for 
supporting section 316(b) determinations, it did not establish uniform 
technology-based national standards for best technology available for 
minimizing adverse environmental impact. Rather, the guidance left the 
decisions on the appropriate location, design, capacity, and 
construction of cooling water intake structures to the permitting 
authority. Under this framework, the Director determined whether 
appropriate studies have been performed, whether a given facility has 
minimized adverse environmental impact, and what, if any, technologies 
may be required.
4. Phase I New Facility Rule
    On November 9, 2001, EPA took final action on regulations governing 
cooling water intake structures at new facilities. 66 FR 65255 
(December 18, 2001). On December 26, 2002, EPA made minor changes to 
the Phase I regulations. 67 FR 78947. The final Phase I new facility 
rule (40 CFR Part 125, Subpart I) establishes requirements applicable 
to the location, design, construction, and capacity of cooling water 
intake structures at new facilities that withdraw at least two (2) 
million gallons per day (MGD) and use at least twenty-five (25) percent 
of the water they withdraw solely for cooling purposes. In the new 
facility rule, EPA adopted a two-track approach. Under Track I, for 
facilities with a design intake flow more than 10 MGD, the intake flow 
of the cooling water intake structure is restricted, at a minimum, to a 
level commensurate with that which could be attained by use of a 
closed-cycle, recirculating cooling system. For facilities with a 
design intake flow more than 2 MGD, the design through-screen intake 
velocity is restricted to 0.5 ft/s and the total quantity of intake is 
restricted to a proportion of the mean annual flow of a freshwater 
river or stream, or to maintain the natural thermal stratification or 
turnover patterns (where present) of a lake or reservoir except in 
cases where the disruption is beneficial, or to a percentage of the 
tidal excursions of a tidal river or estuary. If certain environmental 
conditions exist, an applicant with intake capacity greater than 10 MGD 
must select and implement appropriate design and construction 
technologies for minimizing impingement mortality and entrainment. 
(Applicants with 2 to 10 MGD flows are not required to reduce intake 
flow to a level commensurate with a closed-cycle, recirculating cooling 
system, but must install technologies for reducing impingement 
mortality at all locations.) Under Track II, the applicant has the 
opportunity to demonstrate that impacts to fish and shellfish, 
including important forage and predator species, within the watershed 
will be comparable to the reduction in impingement mortality and 
entrainment it would achieve were it to implement the Track I intake 
flow and velocity requirements.
    With the new facility rule, EPA promulgated national minimum 
requirements for the design, capacity, and construction of cooling 
water intake structures at new facilities. EPA believes that the final 
new facility rule establishes a reasonable framework that creates 
certainty for permitting of new facilities, while providing significant 
flexibility to take site-specific factors into account.
5. Proposed Rule for Phase II Existing Facilities
    On April 9, 2002, EPA published proposed requirements for cooling 
water intake structures at Phase II existing facilities to implement 
section 316(b) of the Clean Water Act. EPA proposed to establish 
requirements that gave facilities three different compliance options 
for meeting performance standards that vary based on waterbody

[[Page 41585]]

type, the percentage of the source waterbody withdrawn, and the 
facility capacity utilization rate. 67 FR 17122. EPA received numerous 
comments and data submissions concerning the proposal.
6. Notice of Data Availability
    On Wednesday, March 19, 2003, EPA published a Proposed Rule Notice 
of Data Availability (NODA). 68 FR 13522. This notice presented a 
summary of the data EPA had received or collected since proposal, an 
assessment of the relevance of the data to EPA's analysis, revisions to 
EPA's estimate of the costs and benefits of the proposed rule, new 
proposed compliance alternatives, and potential modifications to EPA's 
proposed regulatory approach. As part of the NODA, EPA also reopened 
the comment period on the complete contents of the proposed rule.
7. Public Participation
    EPA has worked extensively with stakeholders from the industry, 
public interest groups, State agencies, and other Federal agencies in 
the development of this final rule. These public participation 
activities have focused on various section 316(b) issues, including 
issues relevant to development of the Phase I rule and Phase II rule.
    EPA conducted outreach to industry groups, environmental groups, 
and other government entities in the development, testing, refinement, 
and completion of the section 316(b) survey, which has been used as a 
source of data for the Phase II rule. The survey is entitled 
``Information Collection Request, Detailed Industry Questionnaires: 
Phase II Cooling Water Intake Structures & Watershed Case Study Short 
Questionnaire,'' September 3, 1999. In addition, EPA conducted two 
public meetings on section 316(b) issues. In June of 1998, in 
Arlington, Virginia, EPA conducted a public meeting focused on a draft 
regulatory framework for assessing potential adverse environmental 
impact from impingement and entrainment. 63 FR 27958 (May 21, 1998). In 
September of 1998, in Alexandria, Virginia, EPA conducted a public 
meeting focused on technology, cost, and mitigation issues. 63 FR 40683 
(July 30, 1998). In addition, in September of 1998, and April of 1999, 
EPA staff participated in technical workshops sponsored by the Electric 
Power Research Institute on issues relating to the definition and 
assessment of adverse environmental impact. EPA staff have participated 
in other industry conferences, met upon request on numerous occasions 
with representatives of industry and environmental groups.
    In the months leading up to publication of the proposed Phase I 
rule, EPA conducted a series of stakeholder meetings to review the 
draft regulatory framework for the proposed rule and invited 
stakeholders to provide their recommendations for the Agency's 
consideration. EPA managers have met with the Utility Water Act Group, 
Edison Electric Institute, representatives from an individual utility, 
and with representatives from the petroleum refining, pulp and paper, 
and iron and steel industries. EPA conducted several meetings with 
environmental groups attended by representatives from 15 organizations. 
EPA also met with the Association of State and Interstate Water 
Pollution Control Administrators (ASIWPCA) and, with the assistance of 
ASIWPCA, conducted a conference call in which representatives from 17 
States or interstate organizations participated. After publication of 
the proposed Phase I rule, EPA continued to meet with stakeholders at 
their request. Summaries of these meetings are in the docket.
    EPA received many comments from industry stakeholders, government 
agencies, and private citizens on the Phase I proposed rule 65 FR 49059 
(August 10, 2000). EPA received additional comments on the Phase I 
Notice of Data Availability (NODA) 66 FR 28853 (May 25, 2001). These 
comments informed the development of the Phase II proposal.
    In January, 2001, EPA also attended technical workshops organized 
by the Electric Power Research Institute and the Utilities Water Act 
Group. These workshops focused on the presentation of key issues 
associated with different regulatory approaches considered under the 
Phase I proposed rule and alternatives for addressing section 316(b) 
requirements.
    On May 23, 2001, EPA held a day-long forum to discuss specific 
issues associated with the development of regulations under section 
316(b) of the Clean Water Act. 66 FR 20658 (April 24, 2001). At the 
meeting, 17 experts from industry, public interest groups, States, and 
academia reviewed and discussed the Agency's preliminary data on 
cooling water intake structure technologies that are in place at 
existing facilities and the costs associated with the use of available 
technologies for reducing impingement and entrainment. Over 120 people 
attended the meeting.
    In August 21, 2001, EPA staff participated in a technical symposium 
sponsored by the Electric Power Research Institute in association with 
the American Fisheries Society on issues relating to the definition and 
assessment of adverse environmental impact under section 316(b) of the 
CWA.
    During development of the Phase I final rule and Phase II proposed 
rule, EPA coordinated with the staff from the Nuclear Regulatory 
Commission (NRC) to ensure that there would not be a conflict with NRC 
safety requirements. NRC staff reviewed the proposed Phase II rule and 
did not identify any apparent conflict with nuclear plant safety. NRC 
licensees would continue to be obligated to meet NRC requirements for 
design and reliable operation of cooling systems. NRC staff recommended 
that EPA consider adding language which states that in cases of 
conflict between an EPA requirement under this rule and an NRC safety 
requirement, the NRC safety requirement take precedence. EPA added 
language to address this concern in this final rule.
    In a concerted effort to respond to a multitude of questions 
concerning the data and analyses that EPA developed as part of the 
Phase II proposal, EPA held a number of conference calls with multiple 
stakeholders to clarify issues and generally provide additional 
information. To supplement these verbal discussions, EPA drafted three 
supporting documents: one that explained the methodology EPA used to 
calculate entrainment rates; and two others that provided specific 
examples of how EPA applied this methodology to calculate benefits for 
the proposed rule. In addition, EPA prepared written responses to all 
questions submitted by the stakeholders involved in the initial 
conference calls.
    Finally, EPA sponsored a Symposium on Cooling Water Intake 
Technologies to Protect Aquatic Organisms, held on May 6-7, 2003, at 
the Hilton Crystal City at National Airport in Arlington, Virginia. 
This symposium brought together professionals from Federal, State, and 
Tribal regulatory agencies; industry; environmental organizations; 
engineering consulting firms; science and research organizations; 
academia; and others concerned with mitigating harm to the aquatic 
environment by cooling water intake structures. Efficacy and costs of 
various technologies to mitigate impacts to aquatic organisms from 
cooling water intake structures, as well as research and other future 
needs, were discussed.
    These coordination efforts and all of the meetings described in 
this section are documented or summarized in the docket established for 
this rule.

[[Page 41586]]

IV. Environmental Impacts Associated With Cooling Water Intake 
Structures

    With the implementation of today's final rule, EPA intends to 
minimize the adverse environmental impacts of cooling water intake 
structures by minimizing the number of aquatic organisms lost as a 
result of water withdrawals associated with these structures or through 
restoration measures that compensate for these losses. In the Phase I 
new facility rule and proposed Phase II existing facility rule, EPA 
provided an overview of the magnitude and type of environmental impacts 
associated with cooling water intake structures, including several 
illustrative examples of documented environmental impacts at existing 
facilities (see 65 FR 49071-4; 66 FR 65262-5; and 67 FR 17136-40).
    For the same reasons set forth in the preamble to the Phase I rule 
(66 FR 65256, 65291-65297), EPA has determined that there are multiple 
types of undesirable and unacceptable environmental impacts that may be 
associated with Phase II existing facilities, depending on conditions 
at the individual site. These types of impacts include entrainment and 
impingement; reductions of threatened and endangered species; damage to 
critical aquatic organisms, including important elements of the food 
chain; diminishment of a population's compensatory reserve; losses to 
populations including reductions of indigenous species populations, 
commercial fisheries stocks, and recreational fisheries; and stresses 
to overall communities and ecosystems as evidenced by reductions in 
diversity or other changes in system structure and function. Similarly, 
based on the analyses and for the same reasons set forth in the 
preamble to the new facility rule (66 FR 65256, 65291-65297), EPA has 
selected reductions in impingement and entrainment as a quick, certain, 
and consistent metric for determining performance at Phase II existing 
facilities. Further, EPA considered the non-impingement and entrainment 
environmental impacts for this rule and found them to be acceptable at 
a national level. This section describes the environmental impacts 
associated with cooling water withdrawals and why they are of concern 
to the Agency.
    EPA estimates that facilities under the scope of today's final rule 
withdraw on average more than 214 billion gallons of cooling water a 
day from waters of the United States.\2\ A report by the U.S. 
Geological Survey estimates that the use of water by the thermoelectric 
power industry accounted for 47 percent of all combined fresh and 
saline withdrawals from waters of the United States in 1995.\3\ The 
withdrawal of such large quantities of cooling water in turn has the 
potential to affect large quantities of aquatic organisms including 
phytoplankton (tiny, free-floating photosynthetic organisms suspended 
in the water column), zooplankton (small aquatic animals, including 
fish eggs and larvae, that consume phytoplankton and other 
zooplankton), fish, and shellfish. Aquatic organisms drawn into cooling 
water intake structures are either impinged on components of the 
cooling water intake structure or entrained in the cooling water system 
itself.
---------------------------------------------------------------------------

    \2\ EPA 1999. Detailed Industry Questionnaires: Phase II Cooling 
Water Intake Structures & Watershed Case Study Short Questionnaire. 
U.S. Environmental Protection Agency, Office of Wastewater 
Management, Washington, D.C. OMB Control No. 2040-0213.
    \3\ Solley, W.B., R.R. Pierce and H.A. Perlman. 1998. Estimated 
Use of Water in the United States in 1995. U.S. Geological Survey 
Circular 1200.
---------------------------------------------------------------------------

    Impingement takes place when organisms are trapped against intake 
screens by the force of the water being drawn through the cooling water 
intake structure. The velocity of the water withdrawal by the cooling 
water intake structure may prevent proper gill movement, remove fish 
scales, and cause other physical harm or death of affected organisms 
through exhaustion, starvation, asphyxiation, and descaling. Death from 
impingement (``impingement mortality'') can occur immediately or 
subsequently as an individual succumbs to physical damage upon its 
return to the waterbody.
    Entrainment occurs when organisms are drawn through the cooling 
water intake structure into the cooling system. Organisms that become 
entrained are typically relatively small, aquatic organisms, including 
early life stages of fish and shellfish. Many of these small, fragile 
organisms serve as prey for larger organisms higher on the food chain 
which are commercially and recreationally desirable species. As 
entrained organisms pass through a facility's cooling system they may 
be subject to mechanical, thermal, and at times, chemical stress. 
Sources of such stress include physical impacts in the pumps and 
condenser tubing, pressure changes caused by diversion of the cooling 
water into the plant or by the hydraulic effects of the condensers, 
sheer stress, thermal shock in the condenser and discharge tunnel, and 
chemical toxic effects from antifouling agents such as chlorine. 
Similar to impingement mortality, death from entrainment can occur 
immediately or subsequently as the individual succumbs to the damage 
from the stresses encountered as it passed through the cooling water 
system once it is discharged back into the waterbody.
    The environmental impacts attributable to impingement mortality and 
entrainment at individual facilities include losses of early life 
stages of fish and shellfish, reductions in forage species, and 
decreased recreational and commercial landings. EPA estimates that the 
current number of fish and shellfish, expressed as age 1 equivalents, 
that are killed from impingement and entrainment from cooling water 
intake structures at the facilities covered by this Phase II rule is 
over 3.4 billion annually. Expressing impingement mortality and 
entrainment losses as age 1 equivalents is an accepted method for 
converting losses of all life stages into individuals of an equivalent 
age and provides a standard metric for comparing losses among species, 
years, and facilities. The largest losses are in the mid-Atlantic, 
where EPA estimates 1.7 billion age 1 equivalents are lost annually due 
to impingement and entrainment.\4\ Although the number of age 1 
equivalent fish killed by impingement and entrainment is very large, 
precise quantification of the nature and extent of impacts to 
populations and ecosystems is difficult. Population dynamics and the 
physical, chemical, and biological processes of ecosystems are 
extremely complex. While generally accepted as a simple and transparent 
method for modeling losses, the proportional methodology that EPA uses 
to estimate impingement and entrainment nationwide has uncertainties 
that may result in under or over estimating actual impingement and 
entrainment rates.
---------------------------------------------------------------------------

    \4\ For more information, please see Chapter D2: Evaluation of 
Impingement and Entrainment in the Mid-Atlantic Region in the 
Section 316(b) Existing Facilities Regional Studies, Part D: Mid-
Atlantic.
---------------------------------------------------------------------------

    Decreased numbers of aquatic organisms can disrupt aquatic food 
webs and alter species composition and overall levels of biodiversity. 
For example, a model that examined the effect of large entrainment 
losses of forage fish, such as bay anchovy, predicted subsequent 
reductions in predator populations (including commercially and 
recreationally important species such as striped bass, weakfish, and 
blue fish) as high as 25%.\5\ This is because forage species, which 
comprise a majority of

[[Page 41587]]

entrainment losses at many facilities, are often a primary food source 
for predator species.
---------------------------------------------------------------------------

    \5\ Summers, J.K. 1989. Simulating the indirect effects of power 
plant entrainment losses on an estuarine ecosystem. Ecological 
Modelling, 49: 31-47.
---------------------------------------------------------------------------

    EPA is also concerned about the potential impacts of cooling water 
intake structures located in or near habitat areas that support 
threatened, endangered, or other species of concern (those species that 
might be in need of conservation actions, but are not currently listed 
as threatened or endangered under State or Federal law).\6\ In the San 
Francisco Bay-Delta Estuary, California, in the vicinity of the 
Pittsburg and Contra Costa Power Plants several fish species (e.g., 
Delta smelt, Sacramento splittail, chinook salmon, and steelhead) are 
now considered threatened or endangered by State and/or Federal 
authorities. EPA evaluated facility data on impingement and entrainment 
rates for these species and estimated that potential losses of special 
status fish species at the two facilities may average 8,386 age 1 
equivalents per year resulting from impingement and 169 age 1 
equivalents per year due to entrainment.\7\ In another example, EPA is 
aware that from 1976 to 1994, approximately 3,200 threatened or 
endangered sea turtles entered enclosed cooling water intake canals at 
the St. Lucie Nuclear Generating Plant in Florida.\8\ The facility 
developed a capture-and-release program in response to these events. 
Most of the entrapped turtles were captured and released alive; 
however, approximately 160 turtles did not survive. An incidental take 
limit established by NMFS in a 2001 biological opinion for this 
facility has been set at no more than 1,000 sea turtles captured in the 
intake, with less than one percent killed or injured as a result of 
plant operations (only two of those killed or injured may be Kemp's 
Ridley sea turtles and none may be hawksbill or leatherback sea 
turtles).\9\ Although the extent to which threatened, endangered, and 
other special status species are taken by cooling water intake 
structures more generally is yet to be determined, EPA is concerned 
about potential impacts to such species.
---------------------------------------------------------------------------

    \6\ For more information, please see Chapter A12: Threatened & 
Endangered Species Analysis Methods in the Regional Studies for the 
Final Section 316(b) Phase II Existing Facilities Rule.
    \7\ Impingement and entrainment data were obtained from the 2000 
Draft Habitat Conservation Plan for the Pittsburg and Contra Costa 
facilities. Please see EPA's Regional Studies for the Final Section 
316(b) Phase II Existing Facilities Rule for detailed information on 
EPA's evaluation of impingement and entrainment at these facilities.
    \8\ Florida Power and Light Company. 1995. Assessment of the 
impacts at the St. Lucie Nuclear Generating Plant on sea turtle 
species found in the inshore waters of Florida.
    \9\ Florida Power and Light Company, 2002. Florida Power & Light 
Company St. Lucie Plant Annual Environmental Operating Report 2002.
---------------------------------------------------------------------------

Examples of Environmental Impacts Caused by Cooling Water Intakes

1. Hudson River
    The power generation facilities on the Hudson River in New York are 
some of the most extensively studied in the nation. The fish 
populations in the Hudson River have also been studied extensively to 
measure the impacts of these power plants. Studies of entrainment at 
five Hudson River power plants during the 1980s predicted year-class 
reductions ranging from six percent to 79 percent, depending on the 
fish species.\10\ A Draft Environmental Impact Statement (DEIS) 
prepared by industry of entrainment at three Hudson River facilities 
(Roseton, Bowline, and Indian Point) predicted year-class reductions of 
up to 20 percent for striped bass, 25 percent for bay anchovy, and 43 
percent for Atlantic tomcod.\11\ The New York State Department of 
Environmental Conservation (NYSDEC) concluded that any ``compensatory 
responses to this level of power plant mortality could seriously 
deplete any resilience or compensatory capacity of the species needed 
to survive unfavorable environmental conditions.'' \12\ In the DEIS, 
the facilities argue that their operation has not harmed the local 
aquatic communities, because all observed population changes are 
attributable to causes other than the operation of the power plants, 
such as water chestnut growth, zebra mussel invasion, changes in 
commercial fishing, increases in salinity and improved water quality in 
the New York Harbor.
---------------------------------------------------------------------------

    \10\ Boreman J. and P. Goodyear. 1988. Estimates of entrainment 
mortality for striped bass and other fish species inhabiting the 
Hudson River Estuary. American Fisheries Society Monograph 4:152-
160.
    \11\ Consolidated Edison Company of New York. 2000. Draft 
environmental impact statement for the state pollutant discharge 
elimination system permits for Bowline Point, Indian Point 2 & 3, 
and Roseton steam electric generating stations.
    \12\ New York State Department of Environmental Conservation 
(NYSDEC). 2000. Internal memorandum provided to the USEPA on NYDEC's 
position on SPDES permit renewals for Roseton, Bowline Point 1 & 2, 
and Indian Point 2 & 3 generating stations.
---------------------------------------------------------------------------

    In contrast, the Final Environmental Impact Statement (FEIS) 
prepared by NYSDEC for these three facilities concludes that impacts 
are associated with the power plants and notes that these impacts are 
more like habitat degradation than the ``selective cropping'' of fish 
that occurs during regulated fishing because the entire community is 
impacted rather than specific species higher on the food chain.\13\ The 
multiple facilities on the Hudson River act cumulatively on the entire 
aquatic community. New York State's 2002 section 316(b) report lists 
the Hudson River downstream from the Federal dam at Troy, New York, as 
impacted by cooling water use by power plants due to the loss each year 
of a substantial percentage of annual fish production. The FEIS 
estimates, from samples collected between 1981 and 1987, that the 
average annual entrainment losses from these three facilities includes 
16.9 million American shad, 303.4 million striped bass, 409.6 million 
bay anchovy, 468 million white perch, and 826.2 million river 
herring.\14\ In addition, related studies have found a small long-term 
decline in both species richness and diversity within the resident fish 
community. A commenter on the DEIS cited further evidence that Atlantic 
tomcod, Atlantic sturgeon, bluefish, weakfish, rainbow smelt, white 
perch and white catfish are showing long-term trends of declining 
abundance of 5 to 8% per annum.\15\ Declines in abundances of several 
species and changes in species composition have raised concerns about 
the overall health of the community. The FEIS concluded that additional 
technology was necessary to minimize the adverse environmental impact 
from these three once-through systems.\16\
---------------------------------------------------------------------------

    \13\ New York State Department of Environmental Conservation 
(NYSDEC). 2003. Final Environmental Impact Statement: Concerning the 
Applications to Renew NYSPDES Permits for the Roseton 1 & 2, Bowling 
1 & 2 and Indian Point 2 & 3 Steam Electric Generating Stations, 
Orange, Rockland and Westchester Counties.
    \14\ Ibid.
    \15\ Henderson, P.A. and R.M. Seaby. 2000. Technical comments on 
the Draft Environmental Impact Statement for the State Pollution 
Discharge Elimination System Permit Renewal for Bowline Point 1 & 2, 
Indian Point 2 & 3, and Roseton 1 & 2 Steam Generating Stations. 
Pisces Conservation Ltd.
    \16\ New York State Department of Environmental Conservation 
(NYSDEC). 2003. Final Environmental Impact Statement: Concerning the 
Applications to Renew NYSPDES Permits for the Roseton 1 & 2, Bowline 
1 & 2 and Indian Point 2 & 3 Steam Electric Generating Stations, 
Orange, Rockland and Westchester Counties.
---------------------------------------------------------------------------

    The FEIS further concluded that entrainment at these facilities has 
diminished the forage base for each species so there is less food 
available for the survivors. This disruption of the food chain 
compromises the health of the entire aquatic community. The FEIS used, 
as a simplified hypothetical example, the loss of an individual bay 
anchovy that would ordinarily serve as prey for a juvenile striped 
bass. If this individual bay anchovy is killed via entrainment and 
disintegrated upon

[[Page 41588]]

passage through a CWIS, it is no longer available as food to a striped 
bass, but rather it is only useful as food to lower trophic level 
organisms, such as detritivores (organisms that feed on dead organic 
material). Further, the bay anchovy would no longer be available to 
consume phytoplankton, which upsets the distribution of nutrients in 
the ecosystem.\17\
---------------------------------------------------------------------------

    \17\ Ibid.
---------------------------------------------------------------------------

    The Hudson River, like many waterbodies in the nation, has 
undergone many changes in the past few decades. These changes, which 
have affected fish populations either positively or negatively, include 
improvements to water quality as a result of upgrades to sewage 
treatment plants, invasions by exotic species such as zebra mussels, 
chemical contamination by toxins such as PCBs and heavy metals, global 
climate shifts such as increases in annual mean temperatures and higher 
frequencies of extreme weather events (e.g., the El Nino-Southern 
Oscillation), and strict management of individual species stocks such 
as striped bass.\18\ In addition, there are dramatic natural changes in 
fish populations on an annual basis and in the long term due to natural 
phenomena because the Hudson River, like many waterbodies, is a dynamic 
system with many fundamental, fluctuating environmental parameters--
such as flow, temperature, salinity, dissolved oxygen, nutrients, and 
disease--that cause natural variation in fish populations each 
year.\19\ The existence of these interacting variables makes it 
difficult to determine the exact contribution of impingement and 
entrainment losses on a population's relative health. Nonetheless, as 
described later in this section, EPA is concerned about the potential 
for cumulative impacts resulting from multiple facility intakes that 
collectively impinge and/or entrain aquatic organisms within a specific 
waterbody.
---------------------------------------------------------------------------

    \18\ Ibid.
    \19\ Ibid.
---------------------------------------------------------------------------

2. Mount Hope Bay
    Environmental impacts were also studied in another recent permit 
reissuance for the Brayton Point Station in Somerset, Massachusetts, 
where EPA is the permitting authority. EPA determined that, among other 
things, the facility's cooling water system had contributed to the 
collapse of the fishery and inhibited its recovery despite stricter 
commercial and recreational fishing limits and improved water quality 
due to sewage treatment upgrades. The facility currently withdraws 
nearly one billion gallons of water each day and the average annual 
losses of aquatic organisms due to impingement and entrainment are 
estimated in the trillions, including 251 million winter flounder, 375 
million windowpane flounder, 3.5 billion tautog and 11.8 billion bay 
anchovy. A dramatic change in the fish populations in Mount Hope Bay is 
apparent after 1984 with a decline by more than 87 percent, which 
coincides with a 45 percent increase in cooling water withdrawal from 
the bay due to the modification of Unit 4 from a closed-cycle 
recirculating system to a once-through cooling water system and a 
similar increase in the facility's thermal discharge.\20\ \21\ The 
downward trend of finfish abundance in Mount Hope Bay is significantly 
greater than declines in adjacent Narragansett Bay that is not 
influenced by the operation of Brayton Point Station.\22\ Despite 
fishing restrictions, fish stocks have not recovered.
---------------------------------------------------------------------------

    \20\ Ibid.
    \21\ T Gibson, M. 1995 (revised 1996). Comparison of trends in 
the finfish assemblages of Mt. Hope Bay and Narragansett Bay in 
relation to operations for the New England Power Brayton Point 
station. Rhode Island Division of Fish and Wildlife, Marine 
Fisheries Office.
    \22\ EPA-New England. 2002. Clean Water Act NPDES Permitting 
Determinations for Thermal Discharge and Cooling Water Intake from 
Brayton Point Station in Somerset, MA (NPDES Permit No. MA 0003654), 
July 22, 2002.
---------------------------------------------------------------------------

3. Southern California Bight
    At the San Onofre Nuclear Generating Station (SONGS), in a normal 
(non-El Ni[ntilde]o) year, an estimated 57 tons of fish were killed per 
year when all units were in operation.\23\ The amount lost per year 
included approximately 350,000 juveniles of white croaker, a popular 
sport fish; this number represents 33,000 adult equivalents or 3.5 tons 
of adult fish. In shallow water, densities of queenfish and white 
croaker decreased 60 percent within one kilometer of SONGS and 35 
percent within three kilometers from SONGS as compared to densities 
prior to facility operations. Densities of local midwater fish 
decreased 50 to 70 percent within three kilometers of the facility. In 
contrast, relative abundances of some bottom-dwelling species in the 
same areas were higher because of the enriched nature of the SONGS 
discharge, which in turn supported elevated numbers of prey items for 
bottom-dwelling fish.
---------------------------------------------------------------------------

    \23\ Murdoch, W.W., R.C. Fay, and B.J. Mechalas. 1989. Final 
Report of the Marine Review Committee to the California Coastal 
Commission. August 1989, MRC Document No. 89-02.
---------------------------------------------------------------------------

4. Missouri River
    In contrast to these examples, facilities sited on waterbodies 
previously impaired by anthropogenic activities such as channelization 
demonstrate limited entrainment and impingement losses. The Neal 
Generating Complex facility, located near Sioux City, Iowa, on the 
Missouri River is coal-fired and utilizes once-through cooling systems. 
According to a ten-year study conducted from 1972-82, the Missouri 
River aquatic environment near the Neal complex was previously heavily 
impacted by channelization and very high flow rates meant to enhance 
barge traffic and navigation.\24\ These anthropogenic changes to the 
natural river system resulted in significant losses of fish habitat. At 
this facility, there was found to be little impingement and entrainment 
by cooling water intakes.
---------------------------------------------------------------------------

    \24\ Tondreau, R., J. Hey and E. Shane, Morningside College. 
1982. Missouri River Aquatic Ecology Studies: Ten Year Summary 
(1972-1982). Prepared for Iowa Public Service Company, Sioux City, 
Iowa.
---------------------------------------------------------------------------

    Studies like those described in this section provide only a partial 
picture of the range of environmental impacts associated with cooling 
water intake structures. Although numerous studies were conducted to 
determine the environmental impacts caused by impingement and 
entrainment at existing facilities, many of them are based on limited 
data that were collected as long as 25 years ago. EPA's review of 
available facility impingement and entrainment studies identified a 
substantial number of serious study design limitations, including data 
collections for only one to two years or limited to one season and for 
a subset of the species affected by cooling water intakes; limited 
taxonomic detail (i.e., many losses not identified to the species 
level); a general lack of statistical information such as inclusion of 
variance measures in impingement and entrainment estimates; and the 
lack of standard methods and metrics for quantifying impingement and 
entrainment, which limits the potential for evaluating cumulative 
impacts across multiple facilities. Further, in many cases it is likely 
that facility operating conditions and/or the state of the waterbody 
itself has changed since these studies were conducted. Finally, the 
methods for monitoring impingement and entrainment used in the 1970s 
and 1980s, when most section 316(b) evaluations were performed, were 
often inconsistent and incomplete, making quantification of impacts 
difficult in some cases. Recent advances in environmental assessment 
techniques

[[Page 41589]]

provide new and in some cases better tools for monitoring impingement 
and entrainment and quantifying the current magnitude of the 
impacts.25 26
---------------------------------------------------------------------------

    \25\ Schmitt, R.J. and C.W. Osenberg. 1996. Detecting Ecological 
Impacts. Academic Press, San Diego, CA.
    \26\ EPRI 1999. Catalog of Assessment Methods for Evaluating the 
Effects of Power Plant Operations on Aquatic Communities. TR-112013, 
EPRI, Palo Alto, CA.
---------------------------------------------------------------------------

    EPA is also concerned about the potential for cumulative impacts 
related to cooling water withdrawal. Cumulative impacts may result from 
(1) multiple facility intakes impinging and/or entraining aquatic 
organisms within a specific waterbody, watershed, or along the 
migratory pathway of specific species; (2) the existence of multiple 
stressors within a waterbody/watershed, including cooling water intake 
withdrawals; and (3) long-term occurrences of impingement and/or 
entrainment losses that may result in the diminishment of the 
compensatory reserve of a particular fishery stock.
    Historically, environmental impacts related to cooling water intake 
structures have been evaluated on a facility-by-facility basis. These 
historical evaluations do not consider the potential for a fish or 
shellfish species to be concomitantly impacted by cooling water intake 
structures belonging to other facilities that are located within the 
same waterbody or watershed in which the species resides or along the 
coastal migratory route of a particular species. The potential 
cumulative effects of multiple intakes located within a specific 
waterbody or along a coastal segment are difficult to quantify and are 
not typically assessed. (One relevant example is provided for the 
Hudson River; see discussion earlier in this section.) Nonetheless, EPA 
analyses suggest that almost a quarter of all Phase II existing 
facilities are located on a waterbody with another Phase II existing 
facility (DCN 4-4009). Thus, EPA is concerned that although the 
potential for aquatic species to be affected by cooling water 
withdrawals from multiple facility intakes is high, this type of 
cumulative impact is largely unknown and has not adequately been 
accounted for in evaluating impacts. However, recently the Atlantic 
States Marine Fisheries Commission (ASMFC) was requested by its member 
States to investigate the cumulative impacts on commercial fishery 
stocks, particularly overutilized stocks, attributable to cooling water 
intakes located in coastal regions of the Atlantic.\27\ Specifically, 
the ASMFC study will evaluate the potential cumulative impacts of 
multiple intakes on Atlantic menhaden stock \28\ which range along most 
of the U.S. Atlantic coast with a focus on revising existing fishery 
management models so that they accurately consider and account for fish 
losses from multiple intake structures. Results from these types of 
studies, although currently unavailable, will provide significant 
insight into the degree of impact attributable to intake withdrawals 
from multiple facilities.
---------------------------------------------------------------------------

    \27\ Personal communication, D. Hart (EPA) and L. Kline (ASMFC), 
2001.
    \28\ Personal communication, D. Hart (EPA) and L. Kline (ASMFC), 
2003.
---------------------------------------------------------------------------

    EPA also considered information suggesting that impingement and 
entrainment, in conjunction with other factors, may be a nontrivial 
stress on a waterbody. EPA recognizes that cooling water intake 
structures are not the only source of human-induced stress on aquatic 
systems. Additional stresses to aquatic systems include, but are not 
limited to, nutrient, toxics, and sediment loadings; low dissolved 
oxygen; habitat loss; and stormwater runoff. Although EPA recognizes 
that a nexus between a particular stressor and adverse environmental 
impact may be difficult to establish with certainty, EPA believes 
stressors that cause or contribute to the loss of aquatic organisms and 
habitat such as those described above, may incrementally impact the 
viability of aquatic resources. EPA analyses suggest that over 99 
percent of all existing facilities with cooling water withdrawal that 
EPA surveyed in its section 316(b) survey of existing facilities are 
located within two miles of waters that are identified as impaired by a 
State or Tribe (see 66 FR 65256, 65297). Thus, the Agency is concerned 
that to the extent that many of the aquatic organisms subject to the 
effects of cooling water withdrawals reside in impaired waterbodies, 
they are potentially more vulnerable to cumulative impacts from an 
array of physical and chemical anthropogenic stressors.
    Finally, EPA believes that an aquatic population's potential 
compensatory ability--the capacity for a species to increase its 
survival, growth, or reproduction in response to reductions sustained 
to its overall population size--may be compromised by impingement and 
entrainment losses in conjunction with all the other stressors 
encountered within a population's natural range, as well as impingement 
and entrainment losses occurring consistently over extended periods of 
time. As discussed in the Phase I new facility rule (see 66 FR 65294), 
EPA is concerned that even if there is little evidence that cooling 
water intakes alone reduce a population's compensatory reserve, the 
multitude of stressors experienced by a species can potentially 
adversely affect its ability to recover.\29\ Moreover, EPA notes that 
the opposite effect or ``depensation'' (decreases in recruitment as 
stock size declines\30\) may occur if a population's size is reduced 
beyond a critical threshold. Depensation can lead to further decreases 
in population abundances that are already seriously depleted and, in 
some cases, recovery of the population may not be possible even if the 
stressors are removed. In fact, there is some evidence that depensation 
may be a factor in some recent fisheries collapses.\31\ \32\ \33\
---------------------------------------------------------------------------

    \29\ Hutchings, J.A. and R.A. Myers. 1994. What can be learned 
from the collapse of a renewable resource? Atlantic cod, Gadus 
morhus, of Newfoundland and Labrador. Canadian Journal of Fisheries 
and Aquatic Sciences 51:2126-2146.
    \30\ Goodyear, C.P. 1977. Assessing the impact of power plant 
mortality on the compensatory reserve of fish populations. Pages 
186-195 in W. Van Winkle, ed., Proceedings of the Conference on 
Assessing the Effects of Power Plant Induced Mortality on Fish 
Populations. Pergamon Press, New York, NY.
    \31\ Myers, R.A., N.J. Barrowman, J.A. Hutchings, and A.A. 
Rosenburg. 1995. Population dynamics of exploited fish stocks at low 
population levels. Science 26:1106-1108.
    \32\ Hutchings, J.A. and R.A. Myers. 1994. What can be learned 
from the collapse of a renewable resource? Atlantic cod, Gadus 
morhus, of Newfoundland and Labrador. Canadian Journal of Fisheries 
and Aquatic Sciences 51:2126-2146.
    \33\ Liermann, M. and R. Hilborn. 1997. Depensation in fish 
stocks: A hierarchic Bayesian meta-analysis. Can. J. Fish. Aquatic. 
Sci. 54:1976-1985.
---------------------------------------------------------------------------

    Another problem associated with assessing the environmental impact 
of cooling water intakes is that existing fishery resource baselines 
may be inaccurate.\34\ There is much evidence that the world's 
fisheries are in general decline,\35\ \36\ however, many fishery stocks 
have not been adequately assessed. According to a 2002 study, only 23 
percent of U.S. managed fish stocks have been fully assessed and of 
these, over 40 percent are considered depleted or are being fished 
beyond sustainable levels.\37\ Another study estimated that more than 
70 percent of commercial fish stocks are fully

[[Page 41590]]

exploited, overfished or collapsed.\38\ Another estimated that large 
predatory fish stocks are only a tenth of what they were 50 years 
ago.\39\ Most studies of fish populations last only a few years, do not 
encompass the entire life span of the species examined, and do not 
account for cyclical environmental changes such as ENSO events, and 
other long term cycles of oceanographic productivity.\40\
---------------------------------------------------------------------------

    \34\ Watson, R. and D. Pauly. 2001. Systematic distortions in 
world fisheries catch trends. Nature 414:534-536.
    \35\ Ibid.
    \36\ Pew Oceans Commission. 2003. America's Living Oceans: 
Charting a course for sea change. Summary Report. May 2003. Pew 
Oceans Commission, Arlington, VA.
    \37\ U.S. Commission on Ocean Policy. 2002. Developing a 
National Ocean Policy: Mid-Term Report of the U.S. Commission on 
Ocean Policy. Washington, DC.
    \38\ Broad, W.J. and A.C. Revkin. 2003. Has the Sea Given Up its 
Bounty? The New York Times. July 29, 2003.
    \39\ Myers, R.A. and B. Worm. 2003. Rapid worldwide depletion of 
predatory fish communities. Nature 423: 280-283.
    \40\ Jackson, J.B.C., M.X. Kirby, W.H. Berger, K.A. Bjorndal, 
L.W. Botsford, B.J. Bourque, R.H. Bradbury, R. Cooke, J. Erlandson, 
J.A. Estes, T.P. Hughes, S. Kidwell, C.B. Lange, H.S. Lenihan, J.M. 
Pandolfi, C.H. Peterson, R.S. Steneck, M.J. Tegner, and R.R. Warner. 
2001. Historical overfishing and the recent collapse of coastal 
ecosystems. Science 293(5530):629-638.
---------------------------------------------------------------------------

    Although a clear and detailed picture of the status of all our 
fishery resources does not exist,\41\ it is undisputed that fishermen 
are struggling to sustain their livelihood despite strict fishery 
management restrictions which aim to rebuild fish populations. EPA 
shares the concerns expressed by expert fishery scientists that 
historical overfishing has increased the sensitivity of aquatic 
ecosystems to subsequent disturbance, making them more vulnerable to 
other stressors, including cooling water intake structures.
---------------------------------------------------------------------------

    \41\ National Marine Fisheries Service (NMFS). 2002. Annual 
Report to Congress on the Status of U.S. Fisheries--2001. U.S. Dep. 
Commerce, NOAA, Natl. Mar. Fish. Serv., Silver Spring, MD, 142 pp.
---------------------------------------------------------------------------

    In conclusion, EPA's mission includes ensuring the sustainability 
of communities and ecosystems. Thus, EPA must comprehensively evaluate 
all potential threats to resources and work towards eliminating or 
reducing identified threats. As discussed in this section, EPA believes 
that impingement and entrainment losses attributable to cooling water 
intakes do pose a threat to aquatic organisms and through today's rule 
is seeking to minimize that threat.

V. Description of the Final Rule

    Clean Water Act section 316(b) requires that any standard 
established pursuant to section 301 or section 306 of the CWA and 
applicable to a point source shall require that the location, design, 
construction, and capacity of cooling water intake structures reflect 
the best technology available for minimizing adverse environmental 
impact. Today's final rule establishes national performance 
requirements for Phase II existing facilities that ensure such 
facilities fulfill the mandate of section 316(b).
    This rule applies to Phase II existing facilities that use or 
propose to use a cooling water intake structure to withdraw water for 
cooling purposes from waters of the United States and that have or are 
required to have a National Pollutant Discharge Elimination System 
(NPDES) permit issued under section 402 of the CWA. Phase II existing 
facilities include only those facilities whose primary activity is to 
generate and transmit electric power and who have a design intake flow 
of 50 MGD or greater, and that use at least 25 percent of the water 
withdrawn exclusively for cooling purposes (see Sec.  125.91). 
Applicability criteria for this rule are discussed in detail in section 
II of this preamble.
    Under this final rule, EPA has established performance standards 
for the reduction of impingement mortality and, when appropriate, 
entrainment (see Sec.  125.94). The performance standards consist of 
ranges of reductions in impingement mortality and/or entrainment (e.g., 
reduce impingement mortality by 80 to 95 percent and/or entrainment by 
60 to 90 percent). These performance standards reflect the best 
technology available for minimizing adverse environmental impacts 
determined on a national categorical basis. The type of performance 
standard applicable to a particular facility (i.e., reductions in 
impingement only or impingement and entrainment) is based on several 
factors, including the facility's location (i.e., source waterbody), 
rate of use (capacity utilization rate), and the proportion of the 
waterbody withdrawn. Exhibit V-1 summarizes the performance standards 
based on waterbody type.
    In most cases, EPA believes that these performance standards can be 
met using design and construction technologies or operational measures. 
However, under the rule, the performance standards also can be met, in 
whole or in part, by using restoration measures, following 
consideration of design and construction technologies or operational 
measures and provided such measures meet restoration requirements (see 
Sec.  125.94(c)).
    As noted earlier in this section, today's rule generally requires 
that impingement mortality of all life stages of fish and shellfish 
must be reduced by 80 to 95 percent from the calculation baseline; and 
for some facilities, entrainment of all life stages of fish and 
shellfish must be reduced by 60 to 90 percent from the calculation 
baseline (see Sec.  125.94(b)).

                                 Exhibit V-1.--Performance Standard Requirements
----------------------------------------------------------------------------------------------------------------
                                         Capacity utilization                              Type of performance
            Waterbody type                       rate              Design intake flow            standard
----------------------------------------------------------------------------------------------------------------
Freshwater River or Stream...........  Less than 15%..........  N/A \1\................  Impingement mortality
                                                                                          only.
                                       Equal to or greater      5% or less mean annual   Impingement mortality
                                        than 15%.                flow.                    only.
                                                                Greater than 5% of mean  Impingement mortality
                                                                 annual flow.             and entrainment.
Tidal river, Estuary or Ocean........  Less than 15%..........  N/A \1\................  Impingement mortality
                                                                                          only.
                                       Equal to or greater      N/A....................  Impingement mortality
                                        than 15%.                                         and entrainment.
Great Lakes..........................  Less than 15%..........  N/A....................  Impingement mortality
                                                                                          only.
                                       Equal to or greater       N/A...................  Impingement mortality
                                        than 15%.                                         and entrainment.

[[Page 41591]]

 
Lakes or Reservoirs..................  N/A....................  Increase in design       Impingement mortality
                                                                 intake flow must not     only.
                                                                 disrupt thermal
                                                                 stratification except
                                                                 where it does not
                                                                 adversely affect the
                                                                 management of
                                                                 fisheries.
----------------------------------------------------------------------------------------------------------------
\1\ Determination of appropriate compliance reductions is not applicable.

    This final rule identifies five alternatives a Phase II existing 
facility may use to achieve compliance with the requirements for best 
technology available for minimizing adverse environmental impacts 
associated with cooling water intake structures. Four of these are 
based on meeting the applicable performance standards and the fifth 
allows the facility to request a site-specific determination of best 
technology available for minimizing adverse environmental impacts under 
certain circumstances. EPA has established these compliance 
alternatives for meeting the performance standards to provide a 
significant degree of flexibility to Phase II existing facilities, to 
ensure that the rule requirements are economically practicable, and to 
provide the ability for Phase II existing facilities to address unique 
site-specific factors. Application requirements vary based on the 
compliance alternative selected and, for some facilities, include 
development of a Comprehensive Demonstration Study. Application 
requirements are discussed later in this section. The five compliance 
alternatives are described in the following paragraphs.
    Under Sec.  125.94(a)(1)(i) and (ii), a Phase II existing facility 
may demonstrate to the Director that it has already reduced its flow 
commensurate with a closed-cycle recirculating system, or that it has 
already reduced its design intake velocity to 0.5 ft/s or less. If a 
facility can demonstrate to the Director that it has reduced, or will 
reduce, flow commensurate with a closed-cycle recirculating system, the 
facility is deemed to have met the performance standards to reduce 
impingement mortality and entrainment (see Sec.  125.94 (a)(1)(i)). 
Those facilities would not be required to submit a Comprehensive 
Demonstration Study with their NPDES application. If the facility can 
demonstrate to the Director that is has reduced, or will reduce maximum 
through-screen design intake velocity to 0.5 ft/s or less, the facility 
is deemed to have met the performance standards to reduce impingement 
mortality only. Facilities that meet the velocity requirements would 
only need to submit application studies related to determining 
entrainment reduction, if subject to the performance standards for 
entrainment.
    Under Sec.  125.94(a)(2) and (3), a Phase II existing facility may 
demonstrate to the Director, either that its current cooling water 
intake structure configuration meets the applicable performance 
standards, or that it has selected design and construction 
technologies, operational measures, and/or restoration measures that, 
in combination with any existing design and construction technologies, 
operational measures, and/or restoration measures, meet the specified 
performance standards in Sec.  125.94(b) and/or the requirements in 
Sec.  125.94(c).
    Under Sec.  125.94(a)(4), a Phase II existing facility may 
demonstrate to the Director that it has installed and is properly 
operating and maintaining a rule-specified and approved design and 
construction technology in accordance with Sec.  125.99(a). Submerged 
cylindrical wedgewire screen technology is a rule-specified design and 
construction technology that may be used in instances in which a 
facility's cooling water intake structure is located in a freshwater 
river or stream and meets other criteria specified at Sec.  125.99(a).
    In addition, under this compliance alternative, a facility or other 
interested person may submit a request to the Director for approval of 
a different technology. If the Director approves the technology, it may 
be used by all facilities with similar site conditions under his or her 
jurisdiction if allowed under the State's administrative procedures. 
Requests for approval of a technology must be submitted to the Director 
and include a detailed description of the technology; a list of design 
criteria for the technology and site characteristics and conditions 
that each facility must possess in order to ensure that the technology 
can consistently meet the appropriate impingement mortality and 
entrainment performance standards in Sec.  125.94(b); and information 
and data sufficient to demonstrate that all facilities under the 
jurisdiction of the Director can meet the relevant impingement 
mortality and entrainment performance standards in Sec.  125.94(b) if 
the applicable design criteria and site characteristics and conditions 
are present at the facility. A Director may only approve an alternative 
technology following public notice and opportunity for comment on the 
approval of the technology (Sec.  125.99(b)).
    Under Sec.  125.94(a)(5) (i) or (ii), if the Director determines 
that a facility's costs of compliance would be significantly greater 
than the costs considered by the Administrator for a like facility to 
meet the applicable performance standards, or that the costs of 
compliance would be significantly greater than the benefits of meeting 
the applicable performance standards at the facility, the Director must 
make a site-specific determination of best technology available for 
minimizing adverse environmental impact. Under this alternative, a 
facility would either compare its projected costs of compliance using a 
particular technology or technologies to the costs the Agency 
considered for a like facility in establishing the applicable 
performance standards, or compare its projected costs of compliance 
with the projected benefits at its site of meeting the applicable 
performance standards of today's rule (see section IX.H). If in either 
case costs are significantly greater, the technology selected by the 
Director must achieve an efficacy level that comes as close as 
practicable to the applicable performance standards without resulting 
in significantly greater costs.
    During the first permit term, a facility that chooses compliance 
alternatives in Sec.  125.94(a)(2), (3), (4), or (5) may request that 
compliance with the requirements of this rule be determined based on 
the implementation of a Technology Installation and Operation Plan 
indicating how the facility will install and ensure the efficacy, to 
the extent practicable, of design and construction

[[Page 41592]]

technologies and/or operational measures, and/or a Restoration Plan 
(Sec.  125.95(b)(5)). The Technology Installation and Operation Plan 
must be developed and submitted to the Director in accordance with 
Sec.  125.95(b)(4)(ii). The Restoration Plan must be developed in 
accordance with Sec.  125.95(b)(5). During subsequent permit terms, if 
the facility has been in compliance with the construction, operational, 
maintenance, monitoring, and adaptive management requirements in its 
TIOP and/or Restoration Plan during the preceding permit term, the 
facility may request that compliance during subsequent permit terms be 
based on its remaining in compliance with its TIOP and/or Restoration 
Plan, revised in accordance with applicable adaptive management 
requirements if the applicable performance standards are not being met.
    Three sets of data are required to be submitted 180 days prior to 
expiration of a facility's existing permit by all facilities regardless 
of compliance alternative selected (see Sec.  122.21(r)(2)(3) and (5)). 
These are:
     Source Water Physical Data: A narrative description and 
scaled drawings showing the physical configuration of all source 
waterbodies used by the facility, including areal dimensions, depths, 
salinity and temperature regimes, and other documentation that supports 
your determination of the waterbody type where each cooling water 
intake structure is located; identification and characterization of the 
source waterbody's hydrological and geomorphological features, as well 
as the methods used to conduct any physical studies to determine the 
intake's area of influence and the results of such studies; and 
locational maps.
     Cooling Water Intake Structure Data: A narrative 
description of the configuration of each of its facility's cooling 
water intake structures and where it is located in the waterbody and in 
the water column; latitude and longitude in degrees, minutes, and 
seconds for each of its cooling water intake structures; a narrative 
description of the operation of each of its cooling water intake 
structures, including design intake flows, daily hours of operation, 
number of days of the year in operation, and seasonal changes, if 
applicable; a flow distribution and water balance diagram that includes 
all sources of water to the facility, recirculating flows, and 
discharges; and engineering drawings of the cooling water intake 
structure.
     Cooling Water System Data: A narrative description of the 
operation of each cooling water system, its relationship to the cooling 
water intake structures, proportion of the design intake flow that is 
used in the system, the number of days of the year the system is in 
operation, and seasonal changes in the operation of the system, if 
applicable; and engineering calculations and supporting data to support 
the narrative description.
    In addition to the specified data facilities are require to submit, 
some facilities are also required to conduct a Comprehensive 
Demonstration Study. Specific requirements for the Comprehensive 
Demonstration Study vary based on the compliance alternative selected. 
Exhibit II summarizes the Comprehensive Demonstration Study 
requirements for each compliance alternative. Specific details of each 
Comprehensive Demonstration Study component are provided in section IX 
of this preamble.

       Exhibit V-2.--Summary of Comprehensive Demonstration Study Requirements for Compliance Alternatives
----------------------------------------------------------------------------------------------------------------
                                                           Comprehensive demonstration study requirements (Sec.
       Compliance alternative (Sec.   125.94(b))                                125.95(b))
----------------------------------------------------------------------------------------------------------------
1--Demonstrate facility has reduced flow commensurate    None.
 with closed-cycle recirculating system.
1--Demonstrate facility has reduced design intake        No requirements relative to impingement mortality
 velocity to <= 0.5 ft/s.                                 reduction. If subject to entrainment performance
                                                          standard, the facility must only address entrainment
                                                          in the applicable components of its Comprehensive
                                                          Demonstration Study, based on the compliance option
                                                          selected for entrainment reduction.
2--Demonstrate that existing design and construction     Proposal for Information Collection.
 technologies, operational measures, and/or restoration  Source Waterbody Flow Information.
 measures meet the performance standards.                Impingement Mortality and/or Entrainment
                                                          Characterization Study (as appropriate).
                                                         Technology and Compliance Assessment Information
                                                         --Design and Construction Technology Plan
                                                         --Technology Installation and Operation Plan
                                                         Restoration Plan (if appropriate).
                                                         Verification Monitoring Plan.
3--Demonstrate that facility has selected design and     Proposal for Information Collection.
 construction technologies, operational measures, and/   Source Waterbody Flow Information.
 or restoration measures that will, in combination with  Impingement Mortality and/or Entrainment
 any existing design and construction technologies,       Characterization Study (as appropriate).
 operational measures, and/or restoration measures,      Technology and Compliance Assessment Information
 meet the performance standards.                         --Design and Construction Technology Plan
                                                         --Technology Installation and Operation Plan
                                                         Restoration Plan (if appropriate).
                                                         Verification Monitoring Plan.
4--Demonstrate that facility has installed and properly  Technology Installation and Operation Plan.
 operates and maintains an approved technology.          Verification Monitoring Plan.

[[Page 41593]]

 
5--Demonstrate that a site-specific determination of     Proposal for Information Collection.
 BTA is appropriate.                                     Source Waterbody Flow Information.
                                                         Impingement Mortality and/or Entrainment
                                                          Characterization Study (as appropriate).
                                                         Technology Installation and Operation Plan.
                                                         Restoration Plan (if appropriate).
                                                         Information to Support Site Specific Determination of
                                                          BTA including:
                                                         --Comprehensive Cost Evaluation Study (cost-cost test
                                                          and cost-benefit test);
                                                         --Valuation of Monetized Benefits of Reducing IM&E
                                                          (cost-benefit test only);
                                                         --Site-Specific Technology Plan (cost-cost test and
                                                          cost-benefit test);
                                                         Verification Monitoring Plan.
----------------------------------------------------------------------------------------------------------------

    The requirements in today's final rule are implemented through 
NPDES permits issued under section 402 of the CWA. Permit applications 
submitted after the effective date of the rule must fulfill rule 
requirements. However, facilities whose existing permit expires before 
[insert four years after date of publication in the FR], may request a 
schedule for submission of application materials that is as expeditious 
as practicable but does not exceed [insert three years and 180 days 
after date of publication in the FR], to provide sufficient time to 
perform the required information collection requirements. Phase II 
existing facilities must comply with this final rule when they become 
subject to an NPDES permit containing these requirements.
    Finally, today's rule preserves each State's right to adopt or 
enforce more stringent requirements (see Sec.  125.90(d)). It also 
provides that if a State demonstrates to the Administrator that it has 
adopted alternative regulatory requirements in its NPDES program that 
will result in environmental performance within a watershed that is 
comparable to the reductions of impingement mortality and entrainment 
that would otherwise be achieved under Sec.  125.94, the Administrator 
must approve such alternative regulatory requirements (Sec.  
125.90(c)).

VI. Summary of Most Significant Revisions to the Proposed Rule

A. Data Updates

    Based on comments received, additional information made available, 
and the results of subsequent analyses, EPA revised a number of 
assumptions that were used in developing the engineering costs, the 
information collection costs, the economic analyses, and the benefits 
analyses. These new assumptions are presented below and were used in 
the analyses in support of this final rule.
1. Number of Phase II Facilities
    Since publishing the NODA, EPA continued to verify design flow 
information for facilities that had been classified as either Phase II 
(large, existing power production) or Phase III (smaller, power 
producing or manufacturing) facilities. This verification resulted in 
the following changes: One facility that was classified as a Phase II 
facility at proposal was reclassified as being out of scope of the 
section 316(b) regulation, as it ceased operating. Four facilities that 
were classified as Phase III facilities at proposal based on projected 
design intake flow were reclassified as Phase II facilities. As a 
result, the overall number of Phase II facilities increased from 540 to 
543 facilities.\42\ For the final rule, all costs, benefits, and 
economic analyses are based on the updated set of Phase II facilities.
---------------------------------------------------------------------------

    \42\ Note that these numbers are unweighted. [As with many 
surveys, EPA was able to obtain data from most, but not all of the 
facilities potentially subject to this rule. To estimate the 
characteristics for those facilities that were not surveyed, EPA 
assigned a statistically derived sample weight to those facilities 
for which data were collected.] On a sample-weighted basis, the 
number of Phase II facilities increased from 551 to 554. The number 
of Phase II facilities modeled by the Integrated Planning Model 
(IPM) increased from 531 to 535.
---------------------------------------------------------------------------

    The reason for the change is that the Agency revised the estimated 
design intake flows for facilities that responded to the short-
technical questionnaire EPA used to collect information for this rule. 
The Agency has now adopted a more robust set of annual flow data (using 
all the years of data collected for the final rule, rather than only 
flows for 1998 as reported at proposal). This change altered the 
calculated design intake flows for the facilities that provided 
responses to the short-technical questionnaire that EPA used to collect 
data. Facilities that provided responses to the detailed questionnaire 
were unaffected, as the Agency collected maximum design intake flows 
directly through the detailed questionnaire.
2. Technology Costs
    Since publishing the NODA, EPA used new information to revise the 
capital and operation and maintenance (O&M) costs for several 
compliance technologies, including those used as the primary basis for 
the final rule. Overall, the cost updates resulted in the following 
changes: total capital costs decreased by 5 percent and total operation 
and maintenance costs decrease by 3 percent. These comparisons are 
based on the raw costs, adjusted to year-2002 dollars, which have not 
been discounted or annualized.\43\ The revised costing assumptions are 
discussed in detail in section VI.3.
---------------------------------------------------------------------------

    \43\ Based on additional research conducted after NODA 
publication and prior to issuance of the final rule, EPA changed the 
projected compliance response for some facilities. These changes, 
together with the increase in the number of in-scope Phase II 
facilities, contributed to the change in total compliance costs.
---------------------------------------------------------------------------

3. Permitting and Monitoring Costs
    Since proposal, EPA made several corrections and revisions to its 
burden and cost estimates for implementing the information collection 
requirements of today's rule, based on comments received and additional 
analysis. The following corrections and revisions were made since 
proposal:
     EPA corrected the hourly rates for the statistician and 
biological technician labor categories, which were inadvertently 
transposed at proposal.
     EPA increased the burdens associated with impingement and 
entrainment monitoring for the Impingement Mortality and Entrainment 
Characterization Study.

[[Page 41594]]

     EPA revised the pilot study costs to assume that only a 
subset of facilities which are projected to install new technologies 
will perform pilot studies, and to be proportional to the projected 
capital costs for installing these new technologies in order to comply 
with the rule. EPA also developed an alternative national cost estimate 
using slightly different assumptions with regard to pilot study costs 
(see section XI).
     EPA adjusted the facility-level costs to account for 
facilities that were projected to demonstrate compliance through the 
installation of a wedge-wire screen in a freshwater river under the 
compliance alternative in 125.94(a)(4).
4. Net Installation Downtime for Non-recirculating Cooling Tower 
Compliance Technologies
    In developing the proposal for this rule, the Agency estimated that 
technologies other than recirculating cooling towers would not require 
installation downtime for construction. However, the Agency amended 
this outlook for the NODA and published revised estimates of net 
construction downtimes for complying facilities installing a subset of 
technologies analyzed and developed as candidates for best technology 
available (BTA). Based on comments received on the NODA, the Agency has 
conducted further research into the construction downtimes that it used 
in the NODA for certain technologies. For the final regulation 
analysis, the Agency has adopted minor revisions to the construction 
downtimes for certain technologies, with the general effect being an 
increase in the net construction downtimes for a few technologies that 
the Agency views as candidates for reducing entrainment. (Net downtime 
was estimated by subtracting 4 weeks from total downtime, based on an 
assumption that facilities will schedule construction downtime during a 
4 week period of normal downtime unrelated to the rule, for example, 
for routine maintenance.) As such, the Agency projects that a 
significant number of facilities expected to comply with the 
entrainment reduction requirements of the rule will have increased 
downtime costs compared to the NODA and the proposal analyses. The 
final costs of this rule reflect these changes, which are further 
discussed in Section X and the Technical Development Document.

B. Regulatory Approach, Calculation Baseline, and Measuring Compliance

1. Regulatory Approach
    EPA has largely adopted the proposed rule with some restructuring 
and one significant change: an additional compliance alternative, the 
approved technology option (Sec.  125.94(a)(4)) which was discussed in 
detail in the NODA (68 FR 13539). The restructuring of the rule 
language now makes the reduction of flow commensurate with a closed-
cycle recirculating system a separate compliance alternative, such that 
the rule now includes five compliance alternatives. In addition, EPA 
has clarified that facilities may comply with the rule requirement in 
section 125.94 by successfully implementing the construction, 
operational, maintenance, monitoring, and adaptive management 
requirements in a Technology Installation and Operation Plan developed 
in accordance with Sec.  125.95(b)(4)(ii) and/or a Restoration Plan 
developed in accordance with Sec.  125.95(b)(5). These plans must be 
designed and adaptively managed to meet the applicable performance 
standards in Sec.  125.94(b) and (c). The following discussion 
describes the regulatory approach of the final rule, as developed 
through the proposed rule and the NODA.
    EPA proposed requirements for the location, design, construction, 
and capacity of cooling water intakes based on the waterbody type and 
the volume of water withdrawn by a facility (67 FR 17122). EPA grouped 
waterbodies into five categories, as in the Phase I regulation--
freshwater rivers and streams, lakes and reservoirs, Great Lakes, 
estuaries and tidal rivers, and oceans. In general, the more sensitive 
or biologically productive the waterbody, the more stringent were the 
requirements proposed. The proposed requirements also varied based on 
the percentage of the source waterbody withdrawn and the capacity 
utilization rate.
    Under the proposed rule, a facility could choose one of three 
compliance options: (1) Demonstrate that the facility currently meets 
the specified performance standards, (2) select and implement design 
and construction technologies, operational measures, or restoration 
measures that will, in combination with any existing design and 
construction technologies, operational measures, or restoration 
measures, meet the specified performance standards, and/or (3) 
demonstrate that the facility qualifies for a site-specific 
determination of best technology available, because its costs of 
compliance are significantly greater than those considered by EPA 
during the development of the proposed rule or the facility's costs of 
compliance would be significantly greater than the benefits of 
compliance with the proposed performance standards at the facility. A 
facility could also use restoration measures in addition to or in lieu 
of design and construction technologies and/or operational measures to 
achieve compliance under any of the compliance options.
    In the NODA, EPA sought comment on a proposed fourth compliance 
option (68 FR 13522, 1359-41). In response to comments expressing 
concern that the proposed Comprehensive Demonstration Study 
requirements (at Sec.  125.95(b)) would impose a significant burden on 
permit applicants, EPA examined an additional, more streamlined 
compliance option under which a facility could implement certain 
specified technologies that have been predetermined by EPA or the 
permitting authority to be highly likely to meet applicable performance 
standards, in exchange for not having to perform most of the elements 
of the proposed Comprehensive Demonstration Study.
    Two variations were offered in the NODA: (1) EPA would evaluate the 
effectiveness of specific technologies in achieving an 80 to 95 percent 
reduction in impingement mortality and a 60 to 90 percent reduction in 
entrainment and then specify applicability criteria to ensure that the 
technology would meet the performance standards at facilities 
satisfying the criteria, or (2) EPA would establish the criteria and a 
process for States to pre-approve intake structure control technologies 
as likely to meet the performance standards. For facilities located on 
freshwater rivers and streams and meeting specified criteria, wedgewire 
screens would be expected to meet the proposed performance standards. 
EPA also recognized that these two variations are not mutually 
exclusive and either or both could be adopted in the final rule.
    To a large extent, EPA is adopting the regulatory framework put 
forth in the proposed rule and supplemented by the NODA. To the three 
compliance alternatives originally proposed, EPA has added an approved 
technology alternative discussed in the NODA and included reduction of 
flow commensurate with closed-cycle cooling as a distinct alternative.
2. Calculation Baseline
    Also, in response to comments that the proposed definition for the 
calculation baseline was overly vague,

[[Page 41595]]

EPA published in the NODA a series of additional considerations 
regarding the calculation baseline and a new definition of it taking 
these considerations into account (68 FR 13522, 13580-81). The 
specifications are as follows and the new definition is in today's 
final rule at Sec.  125.93.
     Baseline cooling water intake structure is located at, and 
the screen face is parallel to, the shoreline or another depth if this 
would result in higher baseline impingement mortality and entrainment 
than the surface. EPA believes it is appropriate to allow credit in 
reducing impingement mortality from screen configurations that employ 
angling of the screen face and currents to guide organisms away from 
the structure before they are impinged.
     Baseline cooling water intake structure opening is located 
at or near the surface of the source waterbody. EPA believes it is 
appropriate to allow credit in reducing impingement mortality or 
entrainment due to placement of the opening in the water column.
     Baseline cooling water intake structure has a traveling 
screen with the standard 3/8 inch mesh size commonly used to keep 
condensers free from debris. This allows a more consistent estimation 
of the organisms that are considered ``entrainable'' vs. 
``impingeable'' by specifying a standard mesh size that can be related 
to the size of the organism that may potentially come in contact with 
the cooling water intake structure.
     Baseline practices, procedures, and structural 
configurations are those that the facility would maintain in the 
absence of any structural or operational controls implemented in whole 
or in part for the purpose of reducing impingement mortality and 
entrainment. This recognizes and provides credit for any structural or 
operational controls, including flow or velocity reductions, a facility 
had adopted that reduce impingement mortality or entrainment.
    EPA also requested comment on allowing an ``as built'' approach 
under which facilities could choose to use the existing level of 
impingement mortality and entrainment as the calculation baseline if 
they did not wish to take credit for the previously adopted measures. 
This could significantly simplify the monitoring and calculations 
necessary to determine the baseline.
    In the NODA, EPA also discussed an approach to compliance under 
which facilities would have an ``optimization period'' during which 
they would not be required to meet performance standards but, rather, 
would install, operate and maintain the selected control technologies 
to minimize impingement mortality and entrainment. EPA suggested 
several possible durations for this optimization period, and also 
requested comment on not specifying the duration, but instead leaving 
it up to the Director. 68 FR 13586 (March 19, 2003).
    For the final rule, EPA adopted the NODA definition of calculation 
baseline with some modifications. More specifically, EPA clarified the 
calculation baseline to include consideration of intake depth other 
than at or near the surface in determining the baseline. EPA also 
adopted the ``as built'' approach for the calculation baseline, which 
allows facilities to use current levels of impingement mortality and 
entrainment as the calculation baseline if the facility is configured 
similarly to the criteria set up for the calculation baseline.
    Finally, EPA clarified how compliance with the requirements in 
Sec.  125.94 should be determined. In particular, the final rule 
provides that compliance during the first permit term (and subsequent 
permit terms if specified conditions are met) may be determined based 
on compliance with the construction, operational, maintenance, 
monitoring, and adaptive management requirements in an approved 
Technology Installation and Operation Plan and/ or an approved 
Restoration Plan, that has been developed in accordance with specified 
requirements to meet the applicable performance standards.
3. Measuring Compliance
    EPA has clarified how compliance will be measured. At proposal, EPA 
received comment from the industry that there were uncertainties 
associated with how compliance with the proposed requirements, 
particularly the numeric impingement mortality and entrainment 
performance standards, would be determined. Under the proposed rule and 
NODA, determining compliance, while obviously dependent on the 
compliance alternative selected, would, in general, require the 
development of waterbody characterization data, including key criteria 
(species, parameters, etc.) to be measured and monitored; a 
determination of baseline environmental impacts; implementation of 
cooling water intake technologies (assuming the facility does not 
already meet applicable performance standards and pursues this 
alternative); monitoring the selected criteria; and an evaluation of 
compliance with the applicable numeric impingement mortality and/or 
entrainment permit standard. The industry stakeholders were concerned 
that using the performance standard to set enforceable performance 
requirements would require facilities to collect and analyze greater 
amounts of data than EPA projected to be able to account for the 
variability inherent in biological and efficacy data needed to support 
compliance determinations in spite of overall good technology 
performance. These stakeholders stated that setting enforceable 
performance standards would lead to greater administrative burdens and 
delays when determining numeric standards and monitoring requirements 
to determine compliance. They were also concerned that establishing 
numeric standards would stifle innovation because of fears that a 
technology would not perform as anticipated. These stakeholders 
suggested that the performance standards in the rule serve as a 
consistent basis for setting permit conditions and for identifying 
technologies; installing, operating, and maintaining the chosen 
technology; performing compliance monitoring; and refining or adjusting 
operation, maintenance, or other factors in light of initial 
monitoring.
    Today's rule allows facilities to develop and implement a 
Technology Installation and Operation Plan that would, when used, serve 
as the primary mechanism upon which compliance with the performance 
standard requirements of this rule is determined. EPA has established 
this compliance mechanism because it will ensure that Phase II existing 
facilities will continually be required to achieve a level of 
performance that constitutes, for them, best technology available for 
minimizing adverse environmental impact. For facilities that choose to 
comply with applicable requirements in whole or in part through the use 
of restoration measures, the Restoration Plan would serve a similar 
function. The Restoration Plan is discussed in detail in section IX.
    An existing facility that chooses to use a Technology Installation 
and Operation Plan must (1) select design and construction 
technologies, operational measures, and/or restoration measures that 
will meet the performance standards, and (2) prepare a Technology 
Installation and Operation Plan documenting what, how and when it will 
install, operate, maintain, monitor, assess, and adaptively manage the 
design and construction technologies and operational measures to meet 
the performance standards, including operational parameters and

[[Page 41596]]

inspection schedules, etc. Each facility using a Technology 
Installation Operation Plan must specify key parameters regarding 
monitoring (e.g., parameters to be monitored, location, and frequency), 
optimization activities and schedules for undertaking them, ways of 
assessing efficacy (including adaptive management plan for revising 
design and construction technologies or operational measures) that 
ensure that such technologies and measures are effectively implemented, 
and revised as needed to meet performance standards. This plan must be 
reviewed and approved by the Director and evaluated for sufficiency 
and/or revised at each permit term to ensure that the facility is 
moving expeditiously toward attainment of the applicable performance 
standards. Once approved, each Phase II existing facility must 
implement the plan according to its terms. Compliance with the final 
rule's performance standards during the permit term will be assessed 
based on the terms of the plan. If a facility does not comply with the 
plan, the Director has discretion to implement the performance 
standards or requirements through specifying numeric impingement 
mortality and entrainment requirements or technology prescription (for 
the site-specific alternative) in the permit. In addition, a facility 
that is unable to meet the applicable performance standards using the 
Technology Installation and Operation Plan approach may request in a 
subsequent permit that the Director make a site-specific determination 
of best technology available in accordance with Sec.  125.94(a)(5).
    Under these provisions, compliance is determined in terms of 
whether the facility is implementing, in accordance with the Technology 
Installation and Operation Plan schedule, the technologies, measures 
and practices determined by the Director to be the best technologies 
available for minimizing adverse environmental impact for that 
facility. The Section 316(b) requirements for the facility are 
expressed non-numerically, which is analogous to the use of best 
management practices under other provisions of the CWA. See, e.g., 
sections 402(a) and 402(p). While EPA has been able to calculate ranges 
for national performance standards based on model technologies, EPA has 
insufficient data to determine--as it routinely can do in the context 
of effluent limitations guidelines and standards--that use of those 
model technologies will consistently result in achievement of those 
standards.
    The record persuades EPA that there is uncertainty associated with 
the application and long-term efficacy of these technologies at all 
facilities under the multitude of different site-specific factors and 
conditions under which these technologies might have to perform. In 
addition, even at a single site, there is substantial year-to-year 
variability in species abundance and composition, as well as other 
natural and anthropogenic factors, that may affect the performance of a 
particular technology installed at the facility and it is unclear how 
this would affect the efficacy of the technology. The Technology 
Installation and Operation Plan provisions are intended to account for 
this. For example, meeting numerical reduction standards may not be 
possible at some sites either because hydrological conditions are not 
conducive to technological effectiveness, or due to species 
sensitivity. A Technology Installation and Operation Plan allows a 
facility, working with the Director, to identify, install, and 
adaptively manage technologies suited to its particular site 
conditions. In addition, measuring impingement mortality and 
entrainment reduction is difficult and would require a substantial 
amount of multi-year biological data and analysis is burdensome for the 
facility to develop, is often well beyond the type of information EPA 
can expect State Directors to be able to develop when monitoring 
compliance. A Technology Installation and Operation Plan simplifies 
enforcement: if a facility fails to meet the schedules and other terms 
of its plan, it is violating its section 316(b) requirements; there is 
no need to engage in extensive debate about the meaning of complex 
biological data. This does not mean that biological monitoring and 
assessment of success in meeting applicable performance standards is 
not important. If fact, it is critical to the compliance approach 
adopted in the rule in that it informs facilities and permit 
authorities when adaptive management, including revisions to the 
Technology Installation and Operation Plan, are needed to meet the 
performance standards.
    The Technology Installation and Operation Plan provisions also 
reflect that there is uncertainty about how long it would take a 
facility to adaptively manage the technology and determine the 
appropriate operating conditions for the technology to meet the 
applicable performance requirements. Data and comments available to EPA 
suggest that it is common for existing facilities to adjust 
technologies over time in order to achieve optimum performance and, 
therefore, an adaptive management approach as specified under a plan is 
appropriate. See documentation at DCN 1-3019-BE, 4-1830, and 
6-5001. EPA understands that adaptive management is going to be 
necessary for a number of facilities because there are relatively few 
rigorous evaluations of efficacy under different site and operating 
conditions. The available studies may also be limited in the numbers 
and types of species that they have evaluated and they may not show the 
long term demonstrated effectiveness (and/or consistency of 
effectiveness) of the technology with the added uncertainties 
associated with the variability of natural biological systems. By 
requiring facilities to employ adaptive management principles, EPA 
assures that the facility will be implementing, on an ongoing basis, 
the best array of technologies available to them.
    As noted above, the Technology Installation and Operation Plan 
provisions also simplify implementation because they identify the 
specific compliance requirements needed to meet the performance 
standard ranges and reduce some of the burden associated with measuring 
and enforcing compliance with these ranges for both existing facilities 
and Directors. Directors and facilities may find use of a Technology 
Installation and Operation Plan preferable because it is less feasible 
to develop and accurately evaluate biological monitoring data over a 
relatively short period, as would be required by measuring compliance 
against a numeric performance standard. Rather, the plan provisions 
allow implementation to be adaptive, and allow for data development and 
assessment to proceed in a manner that is appropriate for the facility, 
technology, and waterbody characteristics.
    EPA has the legal authority to express section 316(b) requirements 
in terms of design criteria, in addition to or in place of enforceable 
numeric performance standards. EPA employed a design criterion approach 
in the Phase I rule, when EPA was able to identify a single nationally 
available and economically practicable technology for the category of 
new facilities as a whole, in that case closed-cycle recirculating 
cooling technology. In this rule, EPA was not able to identify a 
uniform set of technologies that would be available and economically 
practicable for all existing facilities, but EPA was able to articulate 
a uniform nationally applicable principle in the form of the 
performance standards in Sec.  125.94(b), by

[[Page 41597]]

which such technologies could be identified by the Director and 
implemented through the use of a Technology Installation and Operation 
Plan designed to achieve them. While the technology solution was 
different in Phase I and Phase II, the legal principle is the same. In 
addition, EPA has the legal authority to identify section 316(b) 
requirements as an evolving set of technologies, rather than a single 
technology array fixed in time. Section 316(b) requires that any 
technology selected under that section must be the best available to 
the facility. This term encompasses consideration of effectiveness, 
costs, non-water quality environmental impacts, feasibility issues and 
a host of other considerations relevant to existing facilities. See 
section 304(b)(2)(B). The record indicates that for some facilities, 
the question of what are available technologies and, among those, what 
is the best technology, may change over time. A Technology Installation 
and Operation Plan is intended to assure that at all times a facility 
is implementing a technology--or a technology plan--that reflects the 
best of all technologies consistent with uniform guiding principles in 
the form of performance standards available to them in light of their 
site-specific circumstances.
    Finally, EPA notes that the way in which performance standards 
guide technology selection and implementation varies slightly among the 
five compliance options. For facilities complying with Sec.  
125.94(a)(1), the technologies identified are so effective that EPA is 
confident that any facility employing them will meet the performance 
standards, so a Technology Installation and Operation Plan and 
performance monitoring are not required. Because these technologies are 
not available to all Phase II existing facilities, however, EPA has 
provided alternative compliance options. For facilities complying in 
accordance with Sec.  125.94(a)(2), (3), or (4), compliance is 
generally achieved by implementation of a Technology Installation and 
Operation Plan designed to meet applicable performance standards. 
Finally, for facilities that comply in accordance with Sec.  
125.94(a)(5) for whom even compliance in accordance with Sec.  
125.94(a)(2), (3), or (4) is not available because of significantly 
higher costs, compliance is achieved by implementation of a Technology 
Installation and Operation Plan that achieves an efficacy as close as 
practicable to the applicable performance standards.
4. Site-Specific Requirements
a. Costs Significantly Greater Than Costs Considered by the 
Administrator
    In today's final rule, a facility that demonstrates to the Director 
that the costs of compliance with the performance standards and/or 
restoration requirements would be significantly greater than the costs 
considered by the Administrator for a similar facility, will be given a 
site-specific determination of best technology available for minimizing 
adverse environmental impact. The standards of the rule have not 
changed since proposal, with the exception of one clarification: in the 
final rule, the alternative site-specific requirements established by 
the Director must achieve an efficacy that is as close as practicable 
to the performance standards and/or restoration requirements specified 
in Sec.  125.94(b) and (c). This was not specified in the proposed rule 
language. In addition, today's final rule also explains how a facility 
should calculate costs considered by the Administrator for a similar 
facility, for comparison with the costs of compliance for the facility. 
EPA details these steps in Sec.  125.94(a)(5)(i)(A)-(F).
    In the proposed rule, submittal requirements for facilities 
requesting a variance based upon a cost-cost test were identical to 
those for facilities requesting a variance based on a cost-benefit 
test. Thus, a facility requesting a site-specific determination based 
on a cost-cost comparison had to submit three studies: the Cost 
Evaluation Study, the Valuation of Monetized Benefits of Reducing 
Impingement and Entrainment, and the Site-Specific Technology Plan. In 
the final rule, by contrast, a facility must submit only the Cost 
Evaluation Study and the Site-Specific Technology Plan.
    Under the Comprehensive Cost Evaluation Study detailed at proposal, 
a facility must submit detailed engineering cost estimates to document 
the costs of implementing the technologies and/or operational measures 
in the facility's Design and Construction Plan. In the final rule, the 
facility must provide, in addition to the engineering cost estimates, a 
demonstration that the costs significantly exceed the benefits of 
complying with the applicable performance standards. EPA did not make 
significant changes to the requirements under the Site-Specific 
Technology Plan.
    In summary, the major changes in the cost-cost analysis are as 
follows:
     In the final rule, EPA has specified how a facility must 
``calculate costs considered by the Administrator'' for comparison with 
the facility's estimate of the costs of compliance with the final rule,
     Elimination of the requirement to submit a Valuation of 
Monetized Benefits of Reducing Impingement and Entrainment, and
     Addition of the requirement to demonstrate that the costs 
significantly exceed the costs considered by the Administrator for a 
similar facility, under the Cost Evaluation Study.
b. Costs Significantly Greater Than Benefits
    In today's final rule, a facility that demonstrates to the Director 
that the costs of compliance with the performance standards and/or 
restoration requirements would be significantly greater than the 
benefits will be given a site-specific determination of best technology 
available for minimizing adverse environmental impact. The standards of 
the rule have not changed since proposal, with the exception of one 
clarification: in the final rule, the alternative site-specific 
requirements established by the Director must achieve an efficacy that 
is as close as practicable to the performance standards and/or 
restoration requirements specified in Sec.  125.94(b) and (c). This was 
not specified in the proposed rule language.
    In the final rule, as in the proposal, a facility requesting a 
site-specific determination based on a cost-benefit comparison must 
submit three studies: the Cost Evaluation Study, the Benefits Valuation 
Study (referred to in proposal as Valuation of Monetized Benefits of 
Reducing Impingement and Entrainment), and the Site-Specific Technology 
Plan. The final rule has both added and clarified requirements for the 
first two components relative to the proposal, but has provided no 
substantive changes in the requirements for the Site-Specific 
Technology Plan.
    Under the Comprehensive Cost Evaluation Study detailed at proposal, 
a facility must submit detailed engineering cost estimates to document 
the costs of implementing the technologies and/or operational measures 
in the facility's Design and Construction Plan. In the final rule, the 
facility must provide, in addition to the engineering cost estimates, a 
demonstration that the costs significantly exceed the benefits of 
complying with the applicable performance standards.
    Additional clarifications are found in the Benefits Valuation 
Study. In the proposed rule, a facility was required to submit (1) a 
description of the

[[Page 41598]]

methodology used to estimate the benefits' value, (2) the basis for 
assumptions and quantitative estimates, and (3) an uncertainty 
analysis. In the final rule, EPA has retained the three submittal 
requirements. Under the first component, EPA has specified the 
categories of potential valuation estimates in the final rule, namely 
commercial, recreational and ecological benefits. EPA has added that a 
facility should include non-use benefits if applicable. To the second 
component, EPA has added that the basis may include a determination of 
entrainment survival if the Director approved such a study. 
Requirements for the uncertainty analysis remain unchanged from 
proposal. In the final rule, EPA has added that a facility will be 
required to submit peer review of the items submitted (upon the 
Director's request) and a narrative description of non-monetized 
benefits that would result at the site if the facility was to meet 
applicable performance standards.
    In summary, the major changes in the cost-benefit analysis are as 
follows:
     Facilities will be required to achieve an efficacy that is 
``as close as practicable'' to performance standards and/ or 
restoration requirements,
     Facilities will need to specifically demonstrate that 
costs are significantly greater than the benefits of compliance, and
     Facilities will have additional requirements under the 
Benefits Valuation Study.

VII. Basis for the Final Regulation

A. Why Is EPA Establishing a Multiple Compliance Alternative Approach 
for Determining Best Technology Available for Minimizing Adverse 
Environmental Impact?

    Today's final rule authorizes a Phase II existing facility to 
choose one of five alternatives for establishing the best technology 
available for minimizing adverse environmental impacts at the facility. 
A facility may (1) demonstrate that it has reduced or will reduce its 
cooling water intake flow commensurate with a closed-cycle, 
recirculating system, and or that it has reduced, or will reduce, the 
maximum through-screen design intake velocity to 0.5 ft/s or less; (2) 
demonstrate that its existing design and construction technologies, 
operational measures, and/or restoration measures meet the applicable 
performance standards and restoration requirements; (3) demonstrate 
that it has selected design and construction technologies, operational 
measures, and/or restoration measures that will, in combination with 
any existing design and construction technologies, operational 
measures, and/or restoration measures, meet the applicable performance 
standards and restoration requirements; (4) demonstrate that it will 
install or has installed and properly operates and maintains an 
approved design and construction technology; or (5) demonstrate that it 
has selected, installed, and is properly operating and maintaining, or 
will install and properly operate and maintain, design and construction 
technologies, operational measures, and/or restoration measures that 
the Director has determined to be the best technology available for the 
facility based on application of a specified cost-to-cost test or a 
cost-to-benefit test. The basis for each of the five compliance 
alternatives is explained in section VII.C. of this preamble.
    The rule establishes performance standards for the reduction of 
impingement mortality and entrainment. EPA established these 
performance standards in part based on a variety of technologies, but 
the rule does not mandate the use of any specific technology. These 
performance standards vary by waterbody type (i.e., freshwater river/
stream, estuary/tidal river, ocean, Great Lake, or lake/reservoir) and 
the capacity utilization rate of the facility. They may be met in whole 
or in part using restoration measures after demonstrating, among other 
things, that the facility has evaluated the use of design and 
construction technologies and operational measures at the site. The 
basis for the performance standards is explained in section VII.B. of 
this preamble and the basis for the restoration requirements is 
explained at section VII.F. of this preamble. For a more detailed 
description of the rule, see sections V and IX of this preamble. These 
requirements reflect the best technology available for minimizing 
adverse environmental impact from cooling water intake structures.
    EPA adopted this regulatory scheme because it provides a high 
degree of flexibility for existing facilities to select the most 
effective and efficient approach and technologies for minimizing 
adverse environmental impact associated with their cooling water intake 
structures. This approach also reflects EPA's judgment that, given the 
wide range of various factors that affect the environmental impact 
posed by Phase II existing facilities, different technologies or 
different combinations of technologies can be used and optimized to 
achieve the performance standards.

B. Why and How Did EPA Establish the Performance Standards at These 
Levels?

1. Overview of Performance Standards
    The final rule establishes two types of performance standards, one 
that addresses impingement mortality and one that addresses 
entrainment. EPA used impingement mortality and entrainment as a metric 
for performance because these are primary and distinct types of harmful 
impacts associated with the use of cooling water intake structures (see 
also section IV). Both the impingement mortality and the entrainment 
performance standards apply to facilities demonstrating compliance 
under alternatives two, three, and four, described above (Sec.  
125.94(a)(2), (3), and (4)). In addition, the Director's site-specific 
alternative requirements must be as close as practicable to the 
applicable performance standards under Sec.  125.94. Performance 
standards for entrainment do not apply to facilities with low 
utilization capacity, those with a design intake flow of five percent 
or less of the mean annual flow of a freshwater river or stream, and 
those that withdraw cooling water from a lake (other than one of the 
Great Lakes) or reservoir because such facilities have a low propensity 
for causing significant entrainment impacts due to limited facility 
operation, low intake flow, or general waterbody characteristics. The 
impingement mortality performance standard requires a Phase II existing 
facility that complies under Sec.  125.94(a)(2), (3), and (4) to reduce 
impingement mortality of all life stages of fish and shellfish by 80 to 
95 percent from the calculation baseline.
    Both an entrainment performance standard and an impingement 
mortality standard apply to facilities with a capacity utilization rate 
of 15 percent or greater and that withdraw cooling water from a tidal 
river, estuary, ocean, one of the Great Lakes, as well as facilities 
that use cooling water from a freshwater river or stream and the design 
intake flow of the cooling water intake structure is greater than five 
percent of the mean annual flow because EPA believes that these 
facilities cause more significant entrainment impacts. The entrainment 
standard, where applicable, requires a Phase II facility to reduce 
entrainment of all life stages of fish and shellfish by 60 to 90 
percent from the calculation baseline.
2. Basis for Performance Standards
    Overall, the performance standards that reflect best technology 
available under today's final rule are not based on a single technology 
but, rather, are

[[Page 41599]]

based on consideration of a range of technologies that EPA has 
determined to be commercially available for the industries affected as 
a whole and have acceptable non-water quality environmental impacts, 
except for some potential regional energy (reliability) impacts that 
will be minimized to the extent possible through flexible compliance 
options. Because the requirements implementing section 316(b) are 
applied in a variety of settings and to Phase II existing facilities of 
different types and sizes, no single technology is most effective at 
all existing facilities, and a range of available technologies has been 
used to derive the performance standards.
    EPA developed the performance standards for impingement mortality 
reduction based on an analysis of the efficacy of the following 
technologies: (1) Design and construction technologies such as fine and 
wide-mesh wedgewire screens, as well as aquatic filter barrier systems, 
that can reduce mortality from impingement by up to 99 percent or 
greater compared with conventional once-through systems; (2) barrier 
nets that may achieve reductions of 80 to 90 percent; and (3) modified 
screens and fish return systems, fish diversion systems, and fine mesh 
traveling screens and fish return systems that have achieved reductions 
in impingement mortality ranging from 60 to 90 percent as compared to 
conventional once-through systems.
    Available performance data for entrainment reduction are not as 
comprehensive as impingement data. However, aquatic filter barrier 
systems, fine mesh wedgewire screens, and fine mesh traveling screens 
with fish return systems have been shown to achieve 80 to 90 percent or 
greater reduction in entrainment compared with conventional once-
through systems. EPA notes that screening to prevent organism 
entrainment may cause impingement of those organisms instead.
3. Discussion of Key Aspects of Performance Standards
    The performance standards at Sec.  125.94(b)(1),(2), and (3) are 
based on the type of waterbody in which the intake structure is 
located, the volume of water withdrawn by a facility, and the facility 
capacity utilization rate. Under the final rule, EPA has grouped 
waterbodies into five categories: (1) Freshwater rivers or streams, (2) 
lakes or reservoirs, (3) Great Lakes, (4) tidal rivers and estuaries, 
and (5) oceans. The Agency considers location, one aspect of which is 
waterbody type, to be an important factor in addressing adverse 
environmental impact caused by cooling water intake structures. Because 
different waterbody types have the potential for different adverse 
environmental impacts, the requirements to minimize adverse 
environmental impact vary by waterbody type.
    The reproductive strategies of tidal river and estuarine species, 
together with other physical and biological characteristics of those 
waters, make them more susceptible than other waterbodies to impacts 
from cooling water intake structures (66 FR 288857-288859; 68 FR 
17140). In contrast, many aquatic organisms found in non-tidal 
freshwater rivers and streams are less susceptible to entrainment due 
to their demersal (bottom-dwelling) nature and the fact that they do 
not typically have planktonic (free-floating) egg and larval stages (66 
FR 28857; 68 FR 17140). Comments on the proposed Phase II existing 
facility rule also acknowledge that waterbody type is an important 
factor in assessing the impacts of cooling water intake structures, 
although some commenters preferred a site-specific approach, and others 
maintained that all waters deserve the most rigorous technology. A 
number of States supported EPA's proposed approach.
    Absent entrainment control technologies, entrainment at a 
particular site is generally proportional to intake flow at that site. 
As discussed above, EPA believes it is reasonable to vary performance 
standards by the potential for adverse environmental impact in a 
waterbody type. EPA is limiting the requirement for entrainment 
controls in fresh waters to those facilities that withdraw the largest 
proportion of water from freshwater rivers or streams because they have 
the potential to impinge and entrain larger numbers of fish and 
shellfish and therefore have a greater potential to cause adverse 
environmental impact. EPA is not requiring entrainment reductions in 
freshwater rivers or streams where facilities withdraw 5 percent or 
less of the source water annual mean flow because such facilities 
generally have a low propensity for causing significant entrainment 
impacts due to the low proportion of intake flow in combination with 
the characteristics of the waterbody.
    There are additional performance standards for facilities 
withdrawing from a lake (other than one of the Great Lakes) or a 
reservoir. If such a facility proposes to increase the design intake 
flow of the cooling water intake structure, the increase in total 
design intake flow must not disrupt the natural thermal stratification 
or turnover pattern of the source water except in cases where the 
disruption does not adversely affect the management of fisheries Sec.  
125.94(b)(3)(iii)). The natural thermal stratification or turnover 
pattern of a lake is a key characteristic that is potentially affected 
by the intake flow (which can alter temperature and/or mixing of cold 
and warm water layers) and location of cooling water intake structures 
within such waterbodies. Cooling water intake structures withdrawing 
from the Great Lakes are required to reduce fish and shellfish 
impingement mortality by 80 to 95 percent and to reduce entrainment by 
60 to 90 percent. As described in the Phase I proposed rule (65 FR 
49086) and NODA (66 FR 28858), EPA believes that the Great Lakes are a 
unique system that should be protected to a greater extent than other 
lakes and reservoirs. Similar to oceans, large lakes such as the Great 
Lakes can possess estuarine-like environments in the lower reaches of 
tributary streams. For example, within the U.S., a total of 1,370 
distinct coastal wetlands fringe the Great Lakes and the channels that 
connect the lakes. (2-016A Herdendorf, C.E. Great Lakes estuaries. 
Estuaries, 13(4): 493-503. 1990, pg. 493). The Agency is therefore 
specifying entrainment controls as well as impingement mortality 
controls for the Great Lakes. EPA has not applied the entrainment 
performance standard to lakes other than the Great Lakes because, in 
general, these waterbodies contain aquatic organisms that tend to be 
less impacted by entrainment than organisms in estuaries or fresh water 
rivers or streams.
    The performance standards for facilities with cooling water intake 
structures located in a tidal river or estuary and with a capacity 
utilization rate of 15 percent or greater are to reduce impingement 
mortality by 80 to 95 percent and entrainment by 60 to 90 percent for 
fish and shellfish. As discussed previously, EPA believes estuaries and 
tidal rivers are more susceptible than other waterbodies to adverse 
impacts from impingement and entrainment.
    The performance standards for facilities with cooling water intake 
structures located in an ocean are to reduce impingement mortality by 
80 to 95 percent and entrainment by 60 to 90 percent for fish and 
shellfish. EPA is establishing requirements for facilities withdrawing 
from oceans that are similar to those for tidal rivers and estuaries 
because the coastal zone of oceans (from which coastal cooling water 
intake structures withdraw water)

[[Page 41600]]

are highly productive areas for fish and shellfish. (See the Phase I 
proposed rule (65 FR 45060) and documents in the record for the Phase I 
new facility rule (Docket  W-00-03) such as 2-013A through O, 
2-019A-R11, 2-019A-R12, 2-019A-R33, 2-019A-R44, 2-020A, 3-0059). EPA is 
also concerned about the extent to which fishery stocks that rely upon 
tidal rivers, estuaries and oceans for habitat are overutilized and 
seeks to minimize the impact that cooling water intake structures may 
have on these species or forage species on which these fishery stocks 
may depend. Recent data demonstrate that approximately 78% of the fish 
stocks managed by the National Oceanic and Atmospheric Administration's 
National Marine Fishery Service (NMFS) are fully exploited, overfished, 
or collapsed (America's Living Oceans: Charting a Course for Sea 
Change, Pew Oceans Commission, June 4, 2003). (See also documents 2-
019A-R11, 2-019A-R12, 2-019A-R33, 2-019A-R44, 2-020A, 2-024A through O, 
and 3-0059 through 3-0063 in the record of the Final New Facility Rule 
(66 FR 65256), Docket  W-00-03).
    In accordance with the Phase II rule, facilities that operate with 
a capacity utilization rate of less than 15 percent are subject to the 
performance standard for impingement mortality only. EPA is not 
requiring, in today's rule, that these facilities control entrainment. 
EPA has several reasons for this. First, EPA has determined that 
entrainment control technology is not economically practicable in view 
of the reduced operating levels of these facilities. These facilities 
also tend to operate most often in mid-winter or late summer, which are 
times of peak energy demand but periods of generally low abundance of 
entrainable life stages of fish and shellfish. Finally, the total 
volume of water withdrawn by these facilities is significantly lower 
than for facilities operating at or near peak capacity, and as noted 
above, entrainment at a site is generally proportional to flow, absent 
entrainment controls. Consequently, EPA determined that it was neither 
necessary nor cost-effective for these facilities to reduce entrainment 
where the total volume of water withdrawn and the number of organisms 
that would be protected from entrainment is likely to be small. EPA is 
also allowing facilities with multiple, distinct cooling water intakes 
that are exclusively dedicated to different generating units to 
determine capacity utilization and applicable performance standards 
separately for each intake for the same reasons.
    As in the Phase I rule, EPA is setting performance standards for 
minimizing adverse environmental impact based on a relatively easy to 
measure and certain metric--reduction of impingement mortality and 
entrainment. Although adverse environmental impact associated with 
cooling water intake structures can extend beyond impingement and 
entrainment, EPA has chosen this approach because impingement and 
entrainment are primary, harmful environmental effects that can be 
reduced through the use of specific technologies. In addition, where 
other impacts at the population, community, and ecosystem levels exist, 
these will also be reduced by reducing impingement and mortality. Using 
impingement mortality and entrainment as a metric provides certainty 
about performance standards and streamlines, and thus speeds, the 
issuance of permits.
    EPA is expressing the performance standard in the form of ranges 
rather than a single performance benchmark because of the uncertainty 
inherent in predicting the efficacy of any one of these technologies, 
or a combination of these technologies, across the spectrum of 
facilities subject to today's rule. The lower end of the range is being 
established as the percent reduction that EPA, based on the available 
efficacy data, expects all facilities could eventually achieve if they 
were to implement and optimize available design and construction 
technologies and operational measures on which the performance 
standards are based. (See Chapter 4, ``Efficacy of Cooling Water Intake 
Structure Technologies,'' of the Phase II Existing Facility Technical 
Development Document, EPA-821-R-04-007, February 2004. Also, see EPA's 
316(b) technology efficacy database, DCN 6-5000.) The lower end of the 
range also reflects, in part, higher mortality rates at sites where 
there may be more fragile species that may not have a high survival 
rate after coming in contact with fish protection technologies at the 
cooling water intake structure (e.g., fine mesh screens). The higher 
end of the range is a percent reduction that available data show many 
facilities can and have achieved with the available technologies upon 
which the performance standards are based.
    In specifying a range, EPA anticipates that facilities will select 
the most cost-effective technologies or operational measures to achieve 
the performance level (within the stated range) based on conditions 
found at their site, and that Directors will review the facility's 
application to ensure that appropriate alternatives were considered. 
Proper selection, operation, and maintenance of these technologies 
would serve to increase potential efficiencies of the technologies. EPA 
also expects that some facilities may be able to meet these performance 
requirements by selecting and implementing a suite (i.e., more than 
one) of technologies and operational measures and/or, as discussed in 
this section, by undertaking restoration measures.
    Several additional factors support EPA's expectation that the 
impingement mortality and entrainment reduction reflected in the 
performance standards can eventually be achieved by all facilities 
using the design and construction technologies and measures on which 
the standards were based. First, a significant portion of the available 
performance data reviewed is from the 1970s and 1980s (when section 
316(b) was initially implemented) and does not reflect recent 
developments, innovations (e.g., aquatic filter barrier systems, sound 
barriers), or experience using these technologies. These data, 
developed during early implementation of the CWA, do not fully reflect 
today's improved understanding of both how the various control 
technologies work and the various factors that reflect what constitutes 
and how to measure healthy aquatic conditions. Second, these 
conventional barrier and return system technologies have not been 
optimized on a widespread level to date, as would be encouraged by this 
rule. Available information indicates that facilities that use these 
cooling water intake structure technologies often achieve better 
results from the technologies through adjusting which technologies are 
applied and how they are used. Such optimization, which also benefits 
from the advances in understanding noted above, would be promoted under 
this rule as facilities work to achieve the performance standards. 
Third, EPA believes that some facilities could achieve further 
reductions (estimated at 15-30 percent) in impingement mortality and 
entrainment by providing for seasonal flow restrictions, variable speed 
pumps, systems conversions to closed-cycle, recirculating systems, and 
other operational measures and innovative flow reduction alternatives. 
Such operational measures could be used to supplement design and 
construction technologies where necessary to meet the performance 
standards. Facilities also could benefit from combining inexpensive 
technologies as a ``suite.'' For additional discussion, see chapter 4 
in the Phase II Existing Facility Technical Development Document.
    The calculation baseline used to determine compliance with

[[Page 41601]]

performance standards is defined in Sec.  125.93 as an estimate of 
impingement mortality and entrainment that would occur at a site 
assuming (1) the cooling water system had been designed as a once-
through system; (2) the opening of the cooling water intake structure 
is located at, and the face of the standard \3/8\-inch mesh traveling 
screen is oriented parallel to, the shoreline near the surface of the 
source waterbody; and (3) the baseline practices and procedures are 
those that the facility would maintain in the absence of any 
operational controls, including flow or velocity reductions, 
implemented in whole or in part for the purposes of reducing 
impingement mortality and entrainment. In addition, the facility may 
choose to use the current level of impingement mortality and 
entrainment as the calculation baseline. EPA's definition also 
clarifies the range of available information sources for the baseline. 
The calculation baseline may be estimated using: historical impingement 
mortality and entrainment data from the facility or from another 
facility with comparable design, operational, and environmental 
conditions; current biological data collected in the waterbody in the 
vicinity of the facility's cooling water intake structure; or current 
impingement mortality and entrainment data collected at the facility. 
Further, a facility may request that the calculation baseline be 
modified to be based on a location of the opening of the cooling water 
intake structure at a depth other than at or near the surface if it can 
demonstrate to the Director that the other depth would correspond to a 
higher baseline level of impingement mortality and/or entrainment. EPA 
decided to use this definition because it represents the most common 
default conditions the Agency could identify to give facilities credit 
for design and construction technologies, operational measures, and/or 
restoration measures that they have already implemented to minimize 
adverse environmental impact, while providing a clear and relatively 
simple definition. Based on comments received on the Phase II NODA, 
this calculation baseline definition includes additional criteria that 
EPA has added to provide clarity to the analysis. (Proposed changes to 
the calculation baseline were discussed in the Phase II NODA, see 68 FR 
13580). In many cases, existing technologies at the site show some 
reduction in impingement and entrainment when compared to this 
baseline. In such cases, impingement mortality and entrainment 
reductions (relative to the calculated baseline) achieved by these 
existing technologies should be counted toward compliance with the 
performance standards. In addition, operational measures such as 
operation of traveling screens, employment of more efficient return 
systems, and even locational choices should be credited for any 
corresponding reduction in impingement mortality and entrainment. See 
section IX of this preamble for a discussion of how the calculation 
baseline is used to compare facility performance with the rule's 
performance standards.

C. What Is the Basis for the Five Compliance Alternatives That EPA 
Selected for Establishing Best Technology Available?

1. Meeting Performance Standards Through Reducing Intake Flow 
Commensurate With a Closed Cycle Recirculating System or Reduced Design 
Intake Velocity
    Under Sec.  125.94(a)(1)(i), any facility that reduces its flow to 
a level commensurate with a closed-cycle, recirculating cooling system 
meets the performance standards in today's rule because such a 
reduction in flow is deemed to satisfy any applicable impingement 
mortality and entrainment performance standards for all waterbodies. 
Facilities that select this compliance alternative either through the 
use of closed-cycle recirculating system technology at the plant, or by 
retrofitting their facility, will not be required to further 
demonstrate that they meet the applicable performance standards. 
Similarly, under 125.94(a)(1)(ii), any facility that reduces its design 
intake velocity to 0.5 ft/s or less is deemed to have met the 
performance standards for impingement mortality and is not required to 
demonstrate further that it meets the performance standards for 
impingement mortality.
    Available data described in Chapter 3 of the Phase II Existing 
Facility Technical Development Document suggest that closed-cycle, 
recirculating cooling systems (e.g., cooling towers or ponds) can 
reduce mortality from impingement by up to 98 percent and entrainment 
by up to 98 percent when compared with conventional once-through 
systems.\44\ Although closed-cycle, recirculating cooling is not one of 
the technologies on which the performance standards are based, use of a 
closed-cycle, recirculating cooling system would always achieve the 
performance standards and therefore, facilities that reduce their flow 
commensurate with closed-cycle, recirculating cooling systems are 
deemed to have met performance standards. The rule, at Sec.  
124.94(a)(1)(i), thus establishes a compliance alternative based on the 
use of a closed-cycle, recirculating cooling system. While EPA based 
the requirements of the new facility rule on the performance standards 
of closed-cycle recirculating systems, EPA has determined that this 
technology is not economically practicable for many existing Phase II 
facilities. EPA is nonetheless aware that some existing facilities have 
installed this highly effective technology and has thus provided a 
streamlined alternative for such facilities.
---------------------------------------------------------------------------

    \44\ Reducing the cooling water intake structure's capacity is 
one of the most effective means of reducing entrainment (and 
impingement). For the traditional steam electric utility industry, 
facilities located in freshwater areas that have closed-cycle 
recirculating cooling water systems can, depending on the quality of 
the make-up water, reduce water use by 96 to 98 percent from the 
amount they would use if they had once-through cooling water 
systems. Steam electric generating facilities that have closed-
cycle, recirculating cooling systems using salt water can reduce 
water usage by 70 to 96 percent when make-up and blowdown flows are 
minimized. The lower range of water usage would be expected where 
State water quality standards limit chloride to a maximum increase 
of 10 percent over background and therefore require a 1.1 cycle of 
concentration. The higher range should be attainable where cycles of 
concentration up to 2.0 are used for the design.
---------------------------------------------------------------------------

    Additionally, EPA established a compliance alternative that allows 
facilities to reduce intake velocity to meet the impingement mortality 
performance standards. As EPA discussed in the proposed rule at 67 FR 
17151 and Phase I final rule at 66 FR 65274, intake velocity is one of 
the key factors that can affect the impingement of fish and other 
aquatic biota, since in the immediate area of the intake it exerts a 
direct physical force against which fish and other organisms must act 
to avoid impingement and entrainment. As discussed in that notice, EPA 
compiled data from three swim speed studies (University of Washington 
study, Turnpenny, and EPRI) and these data indicated that a 0.5 ft/s 
velocity would protect at least 96 percent of the tested fish. As 
further discussed, EPA also identified federal documents (Boreman, DCN 
1-5003-PR; Bell (1990); and National Marine Fisheries Service (NMFS), 
(1997)), an early swim speed and endurance study performed by 
Sonnichsen et al. (1973), and fish screen velocity criteria that are 
consistent with this approach.

[[Page 41602]]

2. Meeting Performance Standards Through the Use of Design and 
Construction Technologies, Operational Measures, and/or Restoration 
Measures
    Under the second and third compliance alternatives (Sec.  
125.94(a)(2) and (3)), a facility may either demonstrate to the 
Director that the facility's existing design and construction 
technologies, operational measures, and/or restoration measures already 
meet the minimum performance standards specified under Sec.  125.94(b) 
and (c), or that it has selected design and construction technologies, 
operational measures, and/or restoration measures or some combination 
thereof that will meet these performance standards.
    Available data indicate that, when considered as a suite of 
technologies, barrier and fish handling technologies are available on a 
national basis for use by Phase II existing facilities. These 
technologies exist and are in use at various Phase II facilities and, 
thus, EPA considers them collectively technologically achievable. In 
addition, 50 percent of the potentially regulated facilities that do 
not already have closed-cycle cooling systems have some other 
technology in place that reduces impingement or entrainment. In turn, a 
large subset of these facilities (33 percent) also have fish handling 
or return systems that reduce the mortality of impinged organisms. The 
fact that these technologies are collectively available means that one 
or more technologies within the suite is available to each Phase II 
facility.
    EPA finds that the design and construction technologies necessary 
to meet the requirements are commercially available and economically 
practicable for existing facilities, because facilities can and have 
installed many of these technologies years after a facility began 
operation. Typically, additional design and construction technologies 
such as fine mesh screens, wedgewire screens, fish handling and return 
systems, and aquatic filter fabric barrier systems can be installed 
during a scheduled outage (operational shutdown). Referenced below are 
examples of facilities that installed these technologies after they 
initially started operating.
    Lovett Generating Station. A 495 MW facility (gas-fired steam), 
Lovett is located in Tomkins Cove, New York, along the Hudson River. 
The facility first began operations in 1949 and has three generating 
units with once-through cooling systems. In 1994, Lovett began the 
testing of an aquatic filter barrier system to reduce entrainment, with 
a permanent system being installed the following year. Improvements and 
additions were made to the system in 1997, 1998, and 1999, with some 
adjustments being accepted as improvements of this vendor's technology 
for all subsequent installations at other locations.
    Big Bend Power Station. Situated on Tampa Bay, Big Bend is a 1998 
MW (coal-fired steam) facility with four generating units. The facility 
first began operations in 1970 and added generating units in 1973, 
1976, and 1985. Big Bend supplies cooling water to its once-through 
cooling water systems via two intake structures. When the facility 
added Unit 4 in 1985, regulators required the facility to install 
additional intake technologies. A fish handling and return system, as 
well as a fine-mesh traveling screen (used only during months with 
potentially high entrainment rates), were installed on the intake 
structure serving both the new Unit 4 and the existing Unit 3.
    Salem Generating Station. A 2381 MW facility (nuclear), Salem is 
located on the Delaware River in Lower Alloways Creek Township, New 
Jersey. The facility has two generating units, both of which use once-
through cooling and began operations in 1977. In 1995, the facility 
installed modified Ristroph screens and a low-pressure spray wash with 
a fish return system. The facility also redesigned the fish return 
troughs to reduce fish trauma.
    Chalk Point Generating Station. Located on the Patuxent River in 
Prince George's County, Maryland, Chalk Point has a capacity of 2647 MW 
(oil-fired steam). The facility has four generating units and uses a 
combination of once-through and closed-cycle, recirculating cooling 
systems (two once-through systems serving two generating units and one 
recirculating system with a tower serving the other two generating 
units). In 1983, the facility installed a barrier net, followed by a 
second net in 1985, giving the facility a coarse mesh (1.25[sec]) outer 
net and a fine mesh (.75[sec]) inner net. The barrier nets are anchored 
to a series of pilings at the mouth of the intake canal that supplies 
the cooling water to the facility and serve to reduce both entrainment 
and the volume of trash taken in at the facility.
3. Meeting Performance Standards Through Use of an Approved Design and 
Construction Technology
    Under the fourth compliance alternative, a facility can demonstrate 
that it meets specified conditions and that it has installed and 
properly operates and maintains a pre-approved technology. EPA is 
approving one technology at this time: submerged cylindrical wedgewire 
screen technology to treat the total cooling water intake flow. There 
are five conditions that must be met in order to use this technology to 
comply with the rule: (1) The cooling water intake structure is located 
in a freshwater river or stream; (2) the cooling water intake structure 
is situated such that sufficient ambient counter currents exist to 
promote cleaning of the screen face; (3) the through screen design 
intake velocity is 0.5 ft/s or less; (4) the slot size is appropriate 
for the size of eggs, larvae, and juveniles of any fish and shellfish 
to be protected at the site; and (5) the entire main condenser cooling 
water flow is directed through the technology (small flows totaling 
less than two MGD for auxiliary plant cooling uses are excluded). 
Directors are explicitly authorized in Sec.  125.99 to pre-approve 
other technologies for use at facilities with other specified 
characteristics within their respective jurisdiction after providing 
the public with a notice and an opportunity to comment on the request 
for approval of the technology. The Director's authority to pre-approve 
other technologies is not limited to technologies for use by facilities 
located on freshwater rivers and streams.
    EPA has adopted this compliance alternative in response to comments 
that suggested that EPA provide an additional, more streamlined 
compliance option under which a facility could implement certain 
specified technologies that are deemed highly protective in exchange 
for reducing the scope of the Comprehensive Demonstration Study. (See 
68 FR 13522, 13539; March 19, 2003). EPA evaluated the effectiveness of 
specific technologies using the impingement mortality and entrainment 
reduction performance standards as assessment criteria. The technology 
selected for the approved technology option has a demonstrated ability 
to reduce impingement mortality by 80 to 95 percent for fish and 
shellfish and, if required, reduce entrainment by 60 to 90 percent for 
any stages of fish and shellfish at facilities that meet the conditions 
specified in section 125.99(a). Thus, the technology has a demonstrated 
ability to meet the most stringent performance standards that would 
apply to any facility situated on a freshwater river or stream. (See 
DCN 1-3075, 1-5069, 1-5070, 3-0002, and 4-4002B. Also see, DCN 6-5000 
and Chapter 3 of the Technical Development Document.) Because 
cylindrical wedgewire screens are believed to be effective when 
deployed under the

[[Page 41603]]

specified conditions and properly maintained, facilities that select 
this compliance option are provided substantially streamlined 
requirements for completing the Comprehensive Demonstration Study. 
However, facilities selecting this option are still required to prepare 
a Technology Installation and Operation Plan to monitor the 
effectiveness of the technology at their site in meeting the 
performance standards.
4. Site-Specific Determination of Best Technology Available To Minimize 
Adverse Environmental Impact
    A facility may comply with the rule by seeking a site-specific 
demonstration of the best technology available to minimize adverse 
environmental impact by demonstrating, to the Director's satisfaction, 
that its cost of complying with the applicable performance standards 
would be significantly greater than the costs considered by EPA for a 
like facility when establishing such performance standards, or that its 
costs would be significantly greater than the benefits of complying 
with such performance standards at the facility. (See sections 
125.94(a)(5)(i) and (ii)). If a facility satisfies one of the two cost 
tests in Sec.  125.94(a)(5), then the Director must establish site-
specific alternative requirements based on design and construction 
technologies, operational measures, and/or restoration measures that 
achieve an efficacy that is, in the judgment of the Director, as close 
as practicable to the applicable performance standards without 
resulting in costs that are significantly greater than either the costs 
considered by the Administrator in establishing the applicable 
performance standards, or the benefits at the facility.
    In establishing the performance standards in 125.94(b) and the 
compliance alternatives in sections 125.94(a)(1)-(4), EPA considered 
several factors, including efficacy, availability, ease of 
implementation, indirect effects, the costs that EPA expects all 
existing facilities to incur (national costs) and the benefits if all 
existing facilities meet the performance standards (national benefits). 
This provision for alternative requirements is included in the rule to 
give facilities flexibility to demonstrate that the best technology 
available to minimize adverse environmental impact at their particular 
sites may be less stringent than would otherwise be achieved if the 
facility selected one of the compliance alternatives in sections 
125.94(a)(1)-(4). (For a discussion of EPA's legal authority to 
authorize compliance with alternative requirements based on this cost-
cost comparison, see Section VIII. I.).
a. Basis of the Cost-Cost Test
    For a number of related reasons, EPA chose to use a comparison of a 
facility's actual costs to the costs EPA estimated that facility would 
incur to meet the national performance standards (a ``cost-cost test'') 
as a basis for obtaining a site-specific determination of best 
technology available. EPA's record for this rule shows that, for the 
category of existing facilities as a whole, today's rule is technically 
achievable and economically practicable. Although EPA collected more 
information for this rulemaking than is typical for an effluent 
limitation guideline rulemaking, detailed information on some factors 
important to the effectiveness and costs of the technologies, such as 
debris loading and the presence of navigational channels within the 
waterbody at which cooling water intakes are sited, was not requested. 
Moreover, the information EPA used to develop its costs was in some 
cases limited by the fact that, while EPA sent surveys to all 
facilities covered under today's rule, only 42% were sent detailed 
questionnaires. The remaining 58% only received a short technical 
questionnaire which requested minimal characterization information. 
Also, EPA may not have elicited information regarding characteristics 
of a particular facility that, if known would have either significantly 
changed EPA's national cost estimates or demonstrated that none of the 
technologies on which the categorical requirements are based are 
economically achievable by the facility. Similarly, existing facilities 
have less flexibility than new facilities in selecting the location of 
their intakes and technologies for minimizing adverse environmental 
impact, and therefore it may be difficult for some facilities to avoid 
costs much higher than those EPA considered when establishing the 
performance standards. The cost-cost site-specific alternative ensures 
that the overall rule remains economically practicable for facilities 
subject to today's rule. In short, for certain facilities EPA may not 
have anticipated some site-specific costs or the costs for retrofit may 
exceed those EPA considered. Despite EPA's best effort, such costs are 
difficult to estimate in a national rule. Because of the wide range of 
available technologies considered and a number of site-specific factors 
that may significantly affect the cost and practicability of installing 
particular technologies at particular sites, the site-specific 
uncertainty in the cost estimates is higher than for an effluent 
limitations guidelines rulemaking. Thus, EPA may not have anticipated 
all site-specific costs that a facility could incur. In addition, 
existing facilities have less flexibility than new facilities in 
selecting the location of their intakes and technologies for minimizing 
adverse environmental impact and, therefore, it may be difficult for 
some facilities to avoid costs much higher than those EPA considered 
when establishing the performance standards in the rule. For all of 
these reasons, EPA believes that the cost-cost site-specific compliance 
alternative is necessary to ensure that the rule is economically 
practicable for existing Phase II facilities. In order to ensure that 
this alternative provides only the minimum relaxation of performance 
standards that is needed to make the rule economically practicable, 
Sec.  125.94(a)(5)(i) requires that the site-specific requirements 
achieve an efficacy that is as close as practicable to the applicable 
performance standards without resulting in costs that are significantly 
greater than those considered by the Administrator for a like facility 
when establishing the performance standards.
b. Basis of the Cost-Benefit Test
    EPA decided to use a comparison of a facility's costs to the 
benefits of meeting the performance standards at the facility (a 
``cost-benefit test'') as another basis for obtaining a site-specific 
determination of BTA to minimize adverse environmental impact. Section 
316(b) authorizes consideration of the environmental benefit to be 
gained by requiring that the location, design, construction, and 
capacity of cooling water intake structures reflect the best 
economically practicable technology available for the purpose of 
minimizing adverse environmental impact. Accordingly, in determining 
that the technologies on which EPA based the compliance alternatives 
and performance standards are the best technologies available for 
existing facilities to minimize adverse environmental impact, EPA 
considered the national cost of those technologies in comparison to the 
national benefits--i.e., the reduction in impingement and entrainment 
that EPA estimated would occur nationally if all existing facilities 
selected one of the compliance options in sections 125.94(a)(1)-(4). 
While EPA believes that there is considerable value in promulgating 
national performance standards under section 316(b) based on what EPA 
determines, on a national basis, to be the best technology available to 
minimize adverse environmental impacts, EPA also recognizes that, at

[[Page 41604]]

times, determining what is necessary to minimize adverse environmental 
impacts can necessitate a site-specific inquiry. EPA's comparison of 
national costs to national benefits may not be applicable to a specific 
site due to variations in (1) the performance of intake technologies 
and (2) characteristics of the waterbody in which the intake(s) are 
sited, including the resident aquatic biota. For example, there may be 
some facilities where the absolute numbers of fish and shellfish 
impinged and entrained is so minimal that the cost to achieve the 
required percentage reductions would be significantly greater than the 
benefits of achieving the required reductions at that particular site. 
More specifically, because of the location of the intake, the 
characteristics of a particular waterbody, or the behavioral patterns 
of the fish or shellfish in that particular waterbody, there may be 
little or no impingement mortality or entrainment occurring at the site 
(see Neal Generating Complex facility example provided in section IV of 
this preamble). For such a facility, the cost of reducing an already 
small amount of impingement mortality and entrainment by 80 to 95 
percent and 60 to 90 percent, respectively, may be significantly 
greater than the benefits. In short, it may not be cost-effective and, 
therefore may be economically impracticable for a facility to achieve 
percentage reductions when attempting to save a small number of fish or 
shellfish. Thus, in a waterbody that is already degraded, very few 
aquatic organisms may be subject to impingement or entrainment, and the 
costs of retrofitting an existing cooling water intake structure may be 
significantly greater than the benefits of doing so. By requiring best 
technology available to minimize adverse environmental impact, section 
316(b) invites a consideration of both technology and of environmental 
conditions, including the potential for adverse impacts, in the 
receiving waterbody. EPA believes it is a reasonable interpretation of 
the statute to allow the Director to consider the results of meeting 
the performance standards in terms of reducing environmental impacts 
(i.e., the benefits) in cases where the costs of installing the 
technology are significantly greater than the reduction in 
environmental impacts would warrant. As with the cost-cost site-
specific provision, EPA also wants to ensure that any relaxation of the 
performance standards be the minimum necessary to ensure that the costs 
are not significantly greater than the benefits. Section 
125.94(a)(5)(i) thus provides that alternative site-specific 
requirements must achieve an efficacy that is as close as practicable 
to the applicable performance standards without resulting in costs that 
are significantly greater than the benefits of meeting the performance 
standards at the facility.

D. How Has EPA Assessed Economic Practicability?

    The legislative history of section 316(b) indicates that the term 
``best technology available'' should be interpreted as ``best 
technology available commercially at an economically practicable 
cost.'' \45\ This position reflects congressional concern that the 
application of best technology available should not impose an 
impracticable and unbearable economic burden. Thus, EPA has conducted 
extensive analyses of the economic impacts of this final rule, using an 
integrated energy market model (the IPM \45\). For a complete 
discussion of this analysis, please refer to section XI.B.1 of this 
preamble or Chapter B3 of the Economic and Benefits Analysis (EBA) in 
support of this final rule (DCN 6-0002).
---------------------------------------------------------------------------

    \45\ See 118 CONG. REC 33,762 (1972), reprinted in 1 Legislative 
History of the Water Pollution Control Act Amendments of 1972, at 
264 (1973) (Statement of Representative Don H. Clausen).
---------------------------------------------------------------------------

    EPA believes that the requirements of this rule reflect the best 
technology available at an economically practicable cost. EPA examined 
the effects of the rule's compliance costs on capacity, generation, 
variable production costs, prices, net income, and other measures, both 
at the market and facility levels. In addition, the other economic 
analyses conducted by EPA showed that the costs for this rule are 
economically practicable.
    However, EPA believes that a consideration of the relationship of 
costs to environmental benefits is an important component of economic 
practicability. As discussed in section VIII.C of the proposed Phase I 
rule (65 FR 49094) EPA has long recognized that there should be some 
reasonable relationship between the cost of cooling water intake 
structure control technology and the environmental benefits associated 
with its use. As the preamble to the 1976 final rule implementing 
section 316(b) stated, neither the statute nor the legislative history 
requires a formal or informal cost-benefit assessment (41 FR 17387; 
April 26, 1976).

E. What Were the Major Options Considered for the Final Rule and Why 
Did EPA Reject Them?

    EPA considered a number of options for determining the best 
technology available to minimize adverse environmental impact at Phase 
II existing facilities and assessed these options based on overall 
efficacy, availability, economic practicability, including economic 
impact and the relationship of costs with benefits, and non-water 
quality environmental impacts, including energy impacts. Under the 
options EPA considered, facilities would be allowed to implement 
restoration measures to meet the performance standards. Similarly, any 
options considered also would allow facilities to request alternative, 
less stringent, requirements if the Director had determined that data 
specific to the facility indicated that compliance with the relevant 
requirement would result in compliance costs significantly greater than 
those EPA considered in establishing the applicable requirement, or 
compliance costs significantly greater than the benefits of complying 
with the applicable performance standards. The alternative requirements 
would be no less stringent than justified by the significantly greater 
cost or the significant adverse impacts on local air quality or local 
energy markets. EPA also considered several site-specific approaches to 
establishing best technology available. These include the site-specific 
sample rule discussed at 67 FR 17159, an alternative based on EPA's 
1977 Draft Guidance, and alternatives suggested by the Utility Water 
Act Group (UWAG) and Public Service Electric and Gas Company (PSEG), 
respectively (see 67 FR 17162). EPA's reasons for not adopting these 
site specific alternatives are discussed in section VII.E.5 of this 
preamble. The five major technology options EPA considered but did not 
select for the final rule are discussed in greater detail in the next 
section. Finally, the costs and benefits presented below are those 
developed at proposal because these estimates are most useful for 
purposes of comparison. Subsequent analyses, such as those presented in 
the NODA, have resulted in higher cost estimates in general, but did 
not alter the relative ranking of these options as EPA made 
determinations regarding the final rule. Rather, these analyses 
indicated that the costs for options that would have required more 
extensive retrofitting efforts than the final rule are even higher 
relative to the costs of the final

[[Page 41605]]

rule than they were estimated to be at proposal.
1. Intake Capacity Commensurate With Closed-Cycle, Recirculating 
Cooling System for All Facilities
    EPA considered a regulatory option that would have required Phase 
II existing facilities with a design intake flow 50 MGD or more to 
reduce the total design intake flow to a level, at a minimum, 
commensurate with that which can be attained by a closed-cycle 
recirculating cooling system using minimized make-up and blowdown 
flows. In addition, facilities in specified circumstances (e.g., 
located where additional protection is needed due to concerns regarding 
threatened, endangered, or protected species or habitat; or regarding 
migratory, sport or commercial species of concern) would have had to 
select and implement additional design and construction technologies to 
minimize impingement mortality and entrainment. This option would not 
have distinguished between facilities on the basis of the waterbody 
type from which they withdraw cooling water. Rather, it would have 
required that the same stringent controls be the nationally applicable 
minimum for all waterbody types. This is the basic regulatory approach 
EPA adopted for new facilities at 40 CFR 125.80.
    EPA did not select a regulatory scheme based on the use of closed-
cycle, recirculating cooling systems at existing facilities based on 
its generally high costs (due to conversions), the fact that other 
technologies approach the performance of this option, concerns for 
energy impacts due to retrofitting existing facilities, and other 
considerations. Although closed-cycle, recirculating cooling water 
systems serve as the basis for requirements applied to Phase I new 
facilities, for Phase II existing facilities, a national requirement to 
retrofit existing systems is not the most cost-effective approach and 
at many existing facilities, retrofits may be impossible or not 
economically practicable. EPA estimates that the total capital costs 
for individual high-flow plants (i.e., greater than 2 billion gallons 
per day) to convert to wet towers generally ranged from $130 to $200 
million, with annual operating costs in the range of $4 to $20 million 
(see TDD; DCN 6-0004). For purposes of general comparison, EPA 
estimated that capital and installation costs for cooling towers under 
the Phase I rule would range from approximately $170,000 to $12.6 
million per plant (annualized), depending on flow. At proposal, EPA 
estimated that the total social cost of compliance for this option for 
Phase II existing facilities would be approximately $3.5 billion per 
year.
    It is significant to note, however, that EPA's estimates did not 
fully incorporate costs associated with acquiring land needed for 
cooling towers and, therefore, these estimates may not fully reflect 
the costs of the option. For example, based on a survey conducted by 
one industry commenter, EPA learned that 31 out of 56 plants surveyed 
said that they would need to acquire additional property to accommodate 
cooling towers, if required by today's rule. EPA recognizes that this 
could be a significant cost. EPA also recognizes that there may be 
impediments, irrespective of costs, to acquiring land for cooling 
towers. Land upon which to construct cooling towers may be difficult or 
impossible to obtain, especially in urban areas; some facilities might 
even turn to displacement of wetlands as a solution. The Agency did not 
include these potential costs in its analysis for the NODA or proposal. 
In contrast to new facilities, which can take into account the Phase I 
requirements when choosing where to situate their structures (including 
cooling towers), existing facilities have far less flexibility and 
incur far greater costs. EPA believes that this is a special problem 
for existing facilities that is relevant to determining whether, as a 
national categorical matter, closed-cycle cooling is the best 
technology available for existing facilities for minimizing adverse 
environmental impacts associated with cooling water intake structures. 
EPA received retrofit cost estimates from a number of commenters that 
indicate that such costs could be at least twice those projected by 
EPA.
    Another issue concerns the energy impacts of cooling towers. EPA 
examined the information it received after publication of the proposed 
rule and NODA, and agrees that the energy penalty associated with 
cooling towers, together with other factors, indicates that this 
technology is not the best technology available for existing facilities 
for minimizing adverse environmental impacts associated with cooling 
water intake structures. In reaching this conclusion, EPA relied on 
energy penalty information provided by the U.S. Department of Energy. 
EPA worked closely with the U.S. Department of Energy in preparing 
today's rule because of their expertise in power plant operations and 
engineering. The U.S. Department of Energy pointed out to EPA that 
existing fossil-fuel facilities converting from once-through cooling 
water systems to wet-cooling towers would produce 2.4 percent to 4.0 
percent less electricity even while burning the same amount of coal. 
For at least one nuclear power plant, which provides 78% of the 
electricity consumed by the State of Vermont, the energy penalty 
associated with converting to cooling towers was estimated to be 5.3 
percent. Expressed differently, DOE estimated that nationally, on 
average 20 additional 400-MW plants might have to be built to replace 
the generating capacity lost by replacing once-through cooling systems 
with wet cooling towers if such towers were required by all Phase II 
facilities.
    This energy penalty leads to other negative consequences. Because 
this deficit is predicted to occur during the summer months (when 
energy demand is highest), the net effect would be more consumption of 
fossil fuel, which in turn increases the emission of sulfur dioxide, 
NOX, particulate matter, mercury and carbon dioxide. 
Increasing fuel consumption at existing coal power plants yields the 
largest increase in air emissions because existing systems are less 
efficient at producing power (and therefore burn more coal) and because 
they generally have less air pollution control equipment in place. EPA 
believes that it is reasonable to consider these non-water quality 
environmental impacts and the additional costs associated with 
controlling these increased emissions in making today's decision. EPA 
further believes that it is authorized to do so because of the links 
between Sec.  316(b) and sections 301 and 306, which require EPA to 
consider both the energy impacts and the air pollution impacts of 
technologies when identifying technologies in the effluent guidelines 
context. See CWA section 304(b)(2)(B) (cross-referenced in Sec.  301); 
CWA section 306(b)(1)(B) (new source performance standards).
    Some commenters also assert that EPA underestimated the down time 
that the facility would experience as it converts to cooling towers. 
This, again, is not an impact that would be experienced by new 
facilities. EPA agrees that such down time can be significant. Indeed, 
one of the four retrofit case studies EPA developed indicated a down 
time of 10 months, and EPA believes it is reasonable to infer that many 
other facilities would experience the same loss.
    EPA also agrees with the commenters who assert that the empirical 
data base of four retrofit cases to which EPA compared cooling tower 
retrofit costs and engineering characteristics is not representative of 
the broader population of facilities and could be too narrow a set from 
which to develop national costs that would be applicable to a wide 
range

[[Page 41606]]

of facilities. Of the four retrofits EPA studied, two were in a single 
state (South Carolina), none were located along a coast, and only one 
generated more than 500 MW of electricity. EPA also recognizes that all 
of these conversions were performed before 1992. While it is true that 
the vast majority of the new, greenfield utility and non-utility 
combined cycle plants built in the past 20 years have wet cooling 
towers, EPA believes that it is significant that so few existing 
facilities retrofitted to the technology during the same period. The 
rarity of this technology as a retrofit further indicates that it is 
not economically practicable for the vast majority of existing 
facilities.
    EPA also considered several additional points made by commenters in 
rejecting this option. Some commenters asserted that certain facilities 
with closed-cycle, recirculating cooling systems often need to address 
the impacts of cooling tower plumes, and subsequent fog and icing in 
metropolitan areas, and noise abatement. Commenters also asserted that 
the costs of retrofitting and operating such systems at facilities 
which do not now have them is disproportionate to the potential 
benefits derived, particularly given the similarity in the level of 
protection provided under this option (all facilities required to 
reduce flow commensurate with a closed-cycle, recirculating system) and 
the final rule. Finally, they stated that the need for flexibility in a 
rule pertaining to existing facilities is critical to allow facility 
owners a range of options to meet the fish protection requirements. EPA 
does not agree that in all cases the costs of retrofitting a closed-
cycle cooling water system is disproportionate to the benefits derived. 
Nevertheless, EPA recognizes that these concerns have merit for many 
facilities and that the validity and extent of such concerns often must 
be assessed on a case-by-case basis.
    Each of these factors has a cost and an economic impact that EPA 
believes is appropriate to consider when evaluating whether cooling 
towers are the best technology available for existing facilities for 
minimizing adverse environmental impacts associated with cooling water 
intake structures. The capital costs estimated by EPA at proposal are 
already very high; when costs reflecting reasonable changes to EPA's 
assumptions are added to them, the total capital cost investment and 
associated economic impact is simply too high at this time for EPA to 
be able to justify selecting cooling towers as a required technology 
for all existing Phase II facilities.
    EPA further compared the efficacy of closed-cycle, recirculating 
cooling systems with that estimated for design and construction 
technologies. Although not identical, the ranges of impingement and 
entrainment reduction are similar under both options, such that the 
reductions estimated for the design and construction technologies, 
particularly when optimized, approach those estimated for closed-cycle, 
recirculating cooling systems. Therefore, the use of design and 
construction technologies as the basis for this rule is supported since 
they can approach closed-cycle, recirculating systems at less cost with 
fewer implementation problems. EPA considered this similarity in 
efficacy, along with the economic practicability and availability of 
each type of technology, in determining that a closed-cycle, 
recirculating cooling system is not the required technology for all 
Phase II existing facilities.
2. Intake Capacity Commensurate With Closed-Cycle, Recirculating 
Cooling Systems Based on Waterbody Type
    EPA also considered an alternate technology-based option in which 
closed-cycle, recirculating cooling systems would have been required 
for all facilities on certain waterbody types. Under this option, EPA 
would have grouped waterbodies into the same five categories as in 
today's rule: (1) Freshwater rivers or streams, (2) lakes or 
reservoirs, (3) Great Lakes, (4) tidal rivers or estuaries; and (5) 
oceans. Because oceans, estuaries and tidal rivers contain essential 
habitat and nursery areas for the vast majority of commercial and 
recreational important species of shell and finfish, including many 
species that are subject to intensive fishing pressures, these 
waterbody types would have required more stringent controls based on 
the performance of closed-cycle, recirculating cooling systems. EPA 
discussed the susceptibility of these waters in a Notice of Data 
Availability (NODA) for the Phase I rule (66 FR 28853, May 25, 2001) 
and invited comment on documents that may support its judgment that 
these waters are particularly susceptible to adverse impacts from 
cooling water intake structures. In addition, the NODA presented 
information regarding the low susceptibility of non-tidal freshwater 
rivers and streams to impacts from entrainment from cooling water 
intake structures.
    Under this alternative option, facilities that operate at less than 
15 percent capacity utilization would, as in today's final rule, only 
be required to have impingement control technology. Facilities that 
have a closed-cycle, recirculating cooling system would have required 
additional design and construction technologies to increase the 
survival rate of impinged biota or to further reduce the amount of 
entrained biota if the intake structure was located within an ocean, 
tidal river, or estuary where there are fishery resources of concern to 
permitting authorities or fishery managers.
    Facilities with cooling water intake structures located in a 
freshwater (including rivers and streams, the Great Lakes and other 
lakes) would have had the same requirements as under today's final 
rule. If a facility for which closed-cycle recirculating technology was 
required chose to comply with alternative requirements, then the 
facility would have had to demonstrate that alternative technologies 
would reduce impingement and entrainment to levels comparable to those 
that would be achieved with a closed-loop recirculating system (90% 
reduction). If such a facility chose to supplement its alternative 
technologies with restoration measures, it would have had to 
demonstrate the same or substantially similar level of protection. (For 
additional discussion see the Phase I final rule 66 FR 65256, at 65315 
columns 1 and 2.)
    At proposal, EPA estimated that there would be 109 \46\ facilities 
located on oceans, estuaries, or tidal rivers that do not have a 
closed-cycle, recirculating cooling system and would need to reduce 
intake flow to a level commensurate with that which can be attained by 
a closed-cycle, recirculating cooling system or upgrade design and 
construction technology (e.g., screens) in order to meet performance 
standards for reducing impingement mortality and entrainment.
---------------------------------------------------------------------------

    \46\ Sample-weighted.
---------------------------------------------------------------------------

    Although EPA estimated the costs of this option to be less 
expensive at the national level than an option based on closed-cycle, 
recirculating cooling systems everywhere, EPA did not select this 
option based on total social costs estimates of greater than $1 billion 
per year and its lack of cost-effectiveness, as well as on concerns 
regarding potential energy impacts. Facilities located on oceans, 
estuaries, and tidal rivers would incur high capital and operating and 
maintenance costs for conversions of their cooling water systems. 
Furthermore, since impacted facilities would be concentrated in coastal 
regions, EPA is concerned that there is

[[Page 41607]]

the potential for short term energy impacts and supply disruptions in 
these areas if multiple facilities retrofit concurrently or over a 
relatively short time-frame, as would be required by these regulations.
3. Intake Capacity Commensurate With Closed-Cycle, Recirculating 
Cooling System Based on Waterbody Type and Proportion of Waterbody Flow
    EPA also considered a variation on the above approach that would 
have required only facilities withdrawing very large amounts of water 
from an estuary, tidal river, or ocean to reduce their intake capacity 
to a level commensurate with that which can be attained by a closed-
cycle, recirculating cooling system. For example, for facilities with 
cooling water intake structures located in a tidal river or estuary, if 
the intake flow is greater than 1 percent of the source water tidal 
excursion, then the facility would have had to meet standards for 
reducing impingement mortality and entrainment based on the performance 
of wet cooling towers. These facilities would instead have had the 
choice of reducing cooling water intake flow to a level commensurate 
with wet cooling towers or of using alternative technologies to meet 
reduction standards based on the performance of wet cooling towers. If 
a facility on a tidal river or estuary had intake flow equal to or less 
than 1 percent of the source water tidal excursion, the facility would 
have only had to meet the same impingement and entrainment performance 
standards as in the final Phase II rule. These standards were developed 
based on the performance of technologies such as fine mesh screens and 
traveling screens with well-designed and operating fish return systems. 
The more stringent, closed-cycle, recirculating cooling system-based 
requirements would have also applied to a facility that has a cooling 
water intake structure located in an ocean with an intake flow greater 
than 500 MGD.
    This option also would impose much higher costs on a subset of 
facilities than the final rule. Based on an analysis of data collected 
through the detailed industry questionnaire and the short technical 
questionnaire, at proposal, EPA estimated there were potentially 109 
Phase II existing facilities located on estuaries, tidal rivers, or 
oceans which would incur capital costs under this option. Of these 109 
facilities, EPA estimated that 51 would exceed the applicable flow 
threshold and be required to meet performance standards for reducing 
impingement mortality and entrainment based on a reduction in intake 
flow to a level commensurate with that which can be attained by a 
closed-cycle recirculating system. Of the 58 \47\ facilities estimated 
to fall below the applicable flow threshold, 10 facilities already meet 
these performance standards and would not require any additional 
controls, whereas 48 \48\ facilities would require entrainment or 
impingement controls, or both. Because this option would only require 
cooling tower-based performance standards for facilities located on 
tidal rivers, estuaries or oceans where they withdraw saline or 
brackish waters, EPA does not believe that this option would raise any 
significant water quantity issues.
---------------------------------------------------------------------------

    \47\ Not sample-weighted.
    \48\ Not sample-weighted.
---------------------------------------------------------------------------

    At proposal, EPA estimated the total social cost of compliance for 
the waterbody/capacity-based option to be approximately $0.97 billion 
per year. EPA did not select this option because it was not determined 
to be the most cost-effective approach on a national basis. While the 
national costs of this option are slightly lower than those of 
requiring wet cooling towers-based performance standard for all 
facilities located on oceans, estuaries and tidal rivers, the cost for 
facilities to meet these standards are still substantial. Although EPA 
would provide an opportunity to seek alternative requirements to 
address locally significant air quality or energy impacts, EPA does not 
believe a framework such as this provides sufficient flexibility to 
ensure effective implementation and to minimize non-water quality 
(including energy) impacts. In addition, as noted above for the other 
cooling tower based options that EPA rejected, facilities can achieve 
almost the same level of impingement mortality and entrainment 
reductions using the technologies on which this final rule is based as 
they can using cooling towers, but at substantially lower cost.
4. Impingement Mortality and Entrainment Controls Everywhere
    At proposal, EPA evaluated an option that required impingement 
mortality and entrainment controls for all facilities. This option did 
not allow for the development of best technology available on a site-
specific basis. This alternative based requirements on the percent of 
source water withdrawn and, like today's final rule, also restricted 
disruption of the natural thermal stratification of lakes or 
reservoirs. It also imposed entrainment performance requirements on 
Phase II existing facilities located on freshwater rivers or streams, 
and lakes or reservoirs where EPA has determined in today's final rule 
that such controls are not necessary. Finally, under this alternative, 
restoration could be used, but only as a supplement to the use of 
design and construction technologies or operational measures.
    This option established clear performance-based requirements that 
were based on the use of available technologies to reduce adverse 
environmental impact. Such an alternative would be consistent with the 
focus on use of best technology required under section 316(b). However, 
as indicated above, this option lacks the flexibility of the final rule 
in applying the necessary and appropriate available technology and 
therefore would be less effective in addressing the specific cooling 
water intake structure impacts posed by Phase II facilities in their 
various environmental settings.
    At proposal, total social cost of compliance for this option was 
estimated at approximately $300 million per year. EPA did not select 
this option because other options were more cost-effective, in part 
because this option requires entrainment controls in freshwater rivers, 
streams, and lakes. The benefits of the final rule are almost the same 
as those for this option but a lower cost (since lakes and reservoirs, 
and for design intake flows below 5% in freshwater rivers and streams 
are the least likely to provide significant benefits).
5. Site-Specific Options as Best Technology Available To Minimize 
Adverse Environmental Impact
    In the proposed rule EPA also considered several site-specific 
approaches to establishing best technology available. These include the 
site-specific sample rule discussed at 67 FR 17159, an alternative 
based on EPA's 1977 Draft Guidance (67 FR 17161), and alternatives 
suggested by UWAG and PSEG, respectively (see 67 FR 17162).
    EPA did not adopt any of these site-specific regulatory options for 
several reasons. None of these site-specific approaches would have 
established national performance standards for best technology 
available to minimize adverse environmental impact. EPA believes that 
such national performance standards promote the consistent application 
of the best technology available to minimize adverse environmental 
impact. In addition, based on contact with States (see Phase I NODA, 66 
FR 28865, Phase II proposal 67 FR 17152-3) and anecdotal

[[Page 41608]]

information \49\ EPA believes that each of these site-specific options 
would have resulted in higher administrative burdens being imposed on 
applicants and permit writers relative to the final rule. As EPA has 
discussed in the preamble to the proposal (see 67 FR 17167), these 
administrative burdens can be associated with the need to determine in 
each case whether adverse impacts are occurring, the nature and level 
of any such impacts, and which design and construction technologies 
constitute the best technology available to minimize adverse 
environmental impacts, including a consideration of costs and benefits. 
Further, all of the proposed site-specific options increase the 
likelihood that each significant cooling water intake permitting issue 
would become a point of contention between the applicant and permit 
writer, which EPA's experience indicates slows the permitting process, 
makes it more resource intensive, and makes it more costly. Finally, 
because the final rule provides facilities with the option of selecting 
from five compliance alternatives, including a site-specific compliance 
alternative, the final rule provides facilities with flexibility 
comparable to that of a site-specific rule. The site-specific 
alternative in the final rule provides clear standards for eligibility 
(the cost-cost and cost-benefit tests), and clear standards on which to 
base the alternative requirements that they achieve an efficacy as 
close as practicable to the national performance standards without 
exceeding the cost-test or benefits-test thresholds. EPA believes that 
structuring a site-specific compliance alternative in this way will 
significantly reduce the potential areas of disagreement between permit 
writer and applicant that are inherent in the other site-specific 
approaches that it rejected, while still providing facilities with 
appropriate flexibility. Through the multiple compliance alternatives 
specified in this rule, EPA has sought to balance the statutory 
requirements of section 316(b) and the need for reasonable limits on 
the administrative burden imposed on both applicants and permit writers 
against the need for existing facilities to have flexibility in 
implementing the requirements.
---------------------------------------------------------------------------

    \49\ For example, a site-specific determination for Brayton 
Point, Rhode Island, has required resources for greater than two 
full time equivalents (FTEs) over three years for permitting and 
support staff, as well as approximately $400,000 in contractor costs 
to address technical issues and applicant experts. Similarly, 
development of a permit for Salem has required resources for greater 
than two full time equivalents (FTEs) over three years for 
permitting and support staff, as well as approximately $340,000 in 
contractor costs to address technical issues and applicant experts.
---------------------------------------------------------------------------

6. Flow Reduction Commensurate With the Level Achieved by Dry Cooling 
Systems Based on Waterbody Type
    EPA conducted a full analysis for the Phase I rule and concluded 
that dry cooling was not an economically practicable option for new 
facilities on a national basis. Dry cooling systems use either a 
natural or a mechanical air draft to transfer heat from condenser tubes 
to air. In conventional closed-cycle recirculating wet cooling towers, 
cooling water that has been used to cool the condensers is pumped to 
the top of a recirculating cooling tower; as the heated water falls, it 
cools through an evaporative process and warm, moist air rises out of 
the tower, often creating a vapor plume. Hybrid wet-dry cooling towers 
employ both a wet section and dry section and reduce or eliminate the 
visible plumes associated with wet cooling towers.
    For the Phase I rule, EPA evaluated zero or nearly zero intake flow 
regulatory alternatives, based on the use of dry cooling systems. EPA 
determined that the annual compliance cost to industry for this option 
would be at least $490 million. EPA based the costs on 121 new 
facilities having to install dry cooling. For the Phase II proposal, 
EPA estimated that total social costs for dry cooling based on 
waterbody type were $2.1 billion per year (or roughly double the costs 
for wet towers). Thus, this option would be more expensive than dry 
cooling for new facilities. The cost for Phase II existing facilities 
to install dry cooling would be significantly higher than the cost for 
new facilities to do so due to the complexities of retrofitting both 
the dry cooling equipment and components of the cooling system. At 
proposal, EPA estimated that 550 Phase II existing facilities would be 
subject to Phase II regulation. The cost would be significantly higher 
because existing facilities have less flexibility, thus incurring 
higher compliance costs (capital and operating) than new facilities. 
For example, existing facilities might need to upgrade or modify 
existing turbines, condensers, and/or cooling water conduit systems, 
which typically imposes greater costs than use of the same technology 
at a new facility. In addition, retrofitting a dry cooling tower at an 
existing facility would require shutdown periods during which the 
facility would lose both production and revenues, and decrease the 
thermal efficiency of an electric generating facility.
    The disparity in costs and operating efficiency of dry cooling 
systems compared with wet cooling systems is considerable when viewed 
on a nationwide or regional basis. For example, under a uniform 
national requirement based on dry cooling, facilities in the southern 
regions of the United States would be at an unfair competitive 
disadvantage compared to those in cooler northern climates because dry 
cooling systems operate more efficiently in colder climates. Even under 
a regional subcategorization strategy for facilities in cool climatic 
regions of the United States, adoption of a minimum requirement based 
on dry cooling would likely impose unfair competitive restrictions for 
steam electric power generating facilities because of the elevated 
capital and operating costs associated with dry cooling. Adoption of 
requirements based on dry cooling for a subcategory of facilities under 
a particular capacity would pose similar competitive disadvantages for 
those facilities.
    As explained in the preamble to the proposal, EPA does not consider 
performance standards based on dry cooling a reasonable option for a 
national requirement, nor for subcategorization under this rule, 
because the technology of dry cooling carries costs that would 
potentially cause significant closures for Phase II existing 
facilities. Dry cooling technology would also have a significant 
detrimental effect on electricity production by reducing the energy 
efficiency of steam turbines. Unlike a new facility that can use direct 
dry cooling, an existing facility that retrofits for dry cooling would 
most likely use indirect dry cooling which is much less efficient than 
direct dry cooling. In contrast to direct dry cooling, indirect dry 
cooling does not operate as an air-cooled condenser. In other words, 
the steam is not condensed within the structure of the dry cooling 
tower, but instead indirectly through a heat exchanger. Therefore, the 
indirect dry cooling system would need to overcome additional heat 
resistance in the shell of the condenser compared to the direct dry 
cooling system. Ultimately, the inefficiency (i.e., energy penalty) of 
indirect dry cooling systems will exceed those of direct dry cooling 
systems in all cases.
    Although the dry cooling option is extremely effective at reducing 
impingement and entrainment, it is not economically practicable for 
existing facilities and would cause additional adverse environmental 
impacts and serious energy impacts. Although dry cooling technology 
uses extremely low-

[[Page 41609]]

level or no cooling water intake, thereby reducing impingement and 
entrainment of organisms to extremely low levels, section 316(b) does 
not require that adverse environmental impact be completely eliminated, 
but that it be minimized using the best technology available. (DOE 
energy penalty study; DCN 4-2512). EPA does not believe that dry 
cooling technology is ``available'' to most Phase II existing 
facilities.
    Although EPA has rejected dry and wet cooling tower technologies as 
a national minimum requirement, EPA does not intend to restrict the use 
of these technologies or to dispute that they may be the appropriate 
cooling technology for some facilities. For example, facilities that 
are repowering and replacing the entire infrastructure of the facility 
may find that dry cooling is an acceptable technology in some cases. 
This technology may be especially appropriate in situations where 
access to cooling water is limited. Wet cooling tower technology may be 
suitable where adverse effects of cooling water intakes are severe and 
where screening systems are impractical, or where thermal discharge 
impacts pose serious environmental problems. Under Clean Water Act 
section 510, a State may choose to impose more stringent standards than 
required by Federal regulations. States may continue to use this 
authority to require facilities to use dry or wet cooling systems.

F. What Is the Role of Restoration and Trading Under Today's Final 
Rule?

1. What Is the Role of Restoration?
    EPA is providing facilities with the option to use restoration for 
compliance alternatives Sec.  125.94(a)(2), (3), and (5) where the 
performance of the restoration measures (the production and increase of 
fish and shellfish in the facility's waterbody or watershed, including 
maintenance of community structure and function), is substantially 
similar to that which would have been achieved if the facility reduced 
impingement mortality and entrainment through the use of design and 
construction technologies and/or operational measures, to meet the 
applicable performance standards. (For a complete discussion of the 
legal analysis supporting restoration, see section VIII of this 
preamble.) The role of restoration under this rule is to provide 
additional flexibility to facilities in complying with the rule by 
eliminating or significantly offsetting the adverse environmental 
impact caused by the operation of a cooling water intake structure. 
Restoration measures that increase fish and shellfish in an impacted 
waterbody or watershed and result in performance substantially similar 
to that which would otherwise be achieved through reductions in 
impingement mortality and entrainment further the goal of minimizing 
adverse environmental impact while offering additional flexibility to 
both permitting authorities and facilities. Restoration measures may 
include such activities as removal of barriers to fish migration, 
reclamation of degraded aquatic organism habitat, or stocking of 
aquatic organisms. These are still technologies, within the meaning of 
that term as used in section 316(b) and as such are an appropriate 
means for meeting technology based performance standards. They are not 
analogous to water quality based effluent limitations on pollutant 
discharges because they are not designed to meet water quality 
standards or dependent on the condition of the receiving waterbody. 
Rather, they provide an additional means to meet the same performance 
standards that guide the selection of design and construction 
technologies and operational measures.
    Restoration measures have been used at existing facilities as one 
of many tools to implement section 316(b) on a case-by-case, best 
professional judgment basis to compensate for the death and injury of 
fish and other aquatic organisms caused by the cooling water intake 
structure. Under today's rule, a Phase II existing facility may utilize 
restoration either in lieu of or as a supplement to design and 
construction technologies and/or operational measures. For example, a 
facility may demonstrate to the Director that velocity controls are the 
most feasible technology choice for the facility but that, when used on 
their own, the velocity controls are insufficient to meet the 
applicable performance standards at Sec.  125.94(b). The facility may 
then, in conjunction with the use of velocity controls, implement 
restoration measures to increase the fish and shellfish productivity of 
the waterbody in order to meet the performance standards at Sec.  
125.94(b). Another facility might demonstrate to the Director that 
restoration measures alone achieve the greatest compliance with the 
performance standards. A facility may alternatively request a site-
specific determination of best technology available under Sec.  
125.94(a)(5) and use restoration measures to meet the alternate 
requirements.
    Facilities that propose to use restoration measures must 
demonstrate to the Director that they evaluated the use of design and 
construction technologies and operational measures and determined that 
the use of restoration measures is appropriate because meeting the 
applicable performance standards or requirements through the use of 
other technologies is less feasible, less cost-effective, or less 
environmentally desirable than meeting the standards in whole or in 
part through the use of restoration measures. Facilities must also 
demonstrate that the restoration measures they plan to implement, 
alone, or in combination with design and construction technologies and/
or operational measures, will produce ecological benefits (production 
of fish and shellfish) at a level that is substantially similar to the 
level that would be achieved through compliance with the applicable 
impingement mortality and/or entrainment performance standards under 
Sec.  125.94(b), or alternative site-specific requirements under Sec.  
125.94(a)(5). In other words, restoration measures must replace the 
fish and shellfish lost to impingement mortality and entrainment, 
either as a substitute or as a supplement to reducing impingement 
mortality and entrainment through design and control technologies and/
or operational measures. While the species makeup of the replacement 
fish and shellfish may not be exactly the same as that of the 
impingement mortality and entrainment losses, the Director must make a 
determination that the net effect is to produce a level of fish and 
shellfish in the waterbody that is ``substantially similar'' to that 
which would result from meeting the performance standards through 
design and construction technologies and/or operational measures alone. 
The final rule requires that a facility use an adaptive management 
method for implementing restoration measures because the performance of 
restoration projects must be regularly monitored and potentially 
adjusted to ensure the projects achieve their objectives (see 67 FR 
17146-17148 and 68 FR 13542).
    The final rule also requires that restoration projects which 
replace the lost fish and shellfish with a different species mix (``out 
of kind'' restoration) be based on a watershed approach to restoration 
planning. The boundaries of a ``watershed'' should be guided by the 
cataloging unit of the ``Hydrologic Unit Map of the United States'' 
(USGS, 1980), although it may be appropriate to use another watershed 
or waterbody classification system developed at the state or local 
level if such a system compares favorably in level of detail. For 
example, in coastal systems that support migratory fish, a coastal

[[Page 41610]]

waterbody that transects a number of watersheds may be the most 
appropriate unit for planning restoration.
2. What Is the Role of Trading in Today's Rule?
    In Sec.  125.90(c), today's final rule provides that if a State 
demonstrates to the Administrator that it has adopted alternative 
regulatory requirements in its NPDES program that will result in 
environmental performance within a watershed that is comparable to the 
reductions of impingement mortality and entrainment that would 
otherwise be achieved under Sec.  125.94, the Administrator must 
approve such alternative requirements. A trading program could be a 
part of these alternative regulatory requirements.
    At proposal, EPA sought comment on the potential role of trading in 
the context of the section 316(b) Phase II rulemaking and possible 
approaches for developing a trading program. Trading under other EPA 
programs has been shown to provide opportunities for regulatory 
compliance at reduced costs. The EPA Office of Water's Water Quality 
Trading Policy, published in January 2003 [DCN 6-5002], fully supports 
trading nutrients and sediment and adopts a case-by case approach to 
evaluating proposals to trade other pollutants.
    Trading in the context of section 316(b) raises many complex 
issues, for example, how to establish appropriate units of trade and 
how to measure these units effectively given the dynamic nature of the 
populations of aquatic organisms subject to impingement mortality and 
entrainment. Should a State choose to propose a trading program under 
Sec.  125.90(c), EPA will evaluate the State's proposal on a case-by-
case basis to ensure the program complies with the regulatory 
requirement--that it will result in environmental performance within a 
watershed that is comparable to the reductions of impingement mortality 
and entrainment that would otherwise be achieved under the requirements 
established at Sec.  125.94. Some commenters suggested that EPA adopt a 
trading program that would allow trading between aquatic organisms and 
pollutant discharges. EPA is concerned that such a program would 
introduce comparability and implementation challenges that would be 
difficult to overcome and therefore, EPA does not expect that such a 
program would work within the framework of today's final rule. In 
addition, EPA does not believe that it is possible at this time to 
quantify with adequate certainty the potential effects on ecosystem 
function, community structure, biodiversity, and genetic diversity of 
such trades, especially when threatened and/or endangered species are 
present. Based on the current state of the science in aquatic community 
ecology and ecological risk assessment, States wishing to develop 
trading programs within the context of 316(b) would be best off 
focusing on programs based on metrics of comparability between fish and 
shellfish gains and losses among trading facilities, rather than the 
much more complex metrics that would be necessary for comparability 
among fish and shellfish losses on the one hand, and pollutant 
reductions on the other.

VIII. Summary of Major Comments and Responses to the Proposed Rule and 
Notice of Data Availability (NODA)

A. Scope and Applicability

1. Phase II Existing Facility Definition
    Numerous commenters supported limiting the scope of the Phase II 
rule to existing facilities that generate and transmit electric power, 
or generate and sell such power to another entity for transmission, but 
suggested that EPA has not sufficiently limited the rule to only these 
facilities. Commenters noted that the proposed definition of ``Phase II 
existing facility'' does not adequately exempt existing manufacturing 
facilities that may occasionally transfer power off-site during peak 
load events. Some commenters suggested that EPA clarify the Phase II 
rule to specify that it does not apply to facilities whose primary 
business is not power generation. Some suggested limiting applicability 
to specified SIC codes (e.g., provided that the rule only applies to 
facilities in SIC 4911). Examples of facilities identified by 
commenters that they believe should be excluded from Phase II include 
manufacturers that produce electricity by co-generation, power 
generating units that predominantly support a manufacturer, e.g., iron 
and steel, but also export some power, and facilities that generate 
power for internal use.
    Commenters requested that EPA further clarify when repowering is 
subject to existing facility requirements. For example, some commenters 
viewed as inconsistent the fact that the addition of a generating unit 
at an existing single unit site could increase intake flows by 100% and 
meet the existing facility definition, while a replacement facility 
that increases intake flows by a much lesser amount (e.g., 25%) would 
not meet the existing facility definition. These commenters suggested 
that EPA consider a facility as an existing facility unless changes to 
the facility result in new environmental impacts.
    In Sec.  125.91(a)(3) of today's rule, an existing facility is 
subject to this rule if its primary activity is either to generate and 
transmit electric power, or to generate electric power that it sells to 
another entity for transmission. This provision was included in the 
rule in response to comments such as those described previously in this 
section. EPA believes that this criterion--the primary activity being 
the generation of electric power--sufficiently clarifies and limits the 
scope of this rule to existing facilities whose primary business is 
power generation. As discussed in Section II of this preamble, the 
final rule does not apply to existing manufacturing facilities, 
including manufacturing facilities that generate power for their own 
use and transmit any surplus power, or sell it for transmission, 
provided the primary activity of the facility is not electric power 
generation. For example, in the case of a facility that operates its 
own power generating units and such units predominantly support that 
facility's manufacturing operation, its primary activity remains 
manufacturing, even if the facility exports some power. Whether a 
facility's primary activity is to generate electric power will need to 
be determined on a case-by-case basis. Section II also makes clear that 
a manufacturing facility is not covered by this final rule just because 
it is co-located with another Phase II facility.
    EPA considered specifying SIC or NAIC codes to clarify the scope of 
the rule beyond that proposed in Sec.  125.91(a)(3), but did not do so 
because it believes the changes in the final rule are sufficient to 
address many issues raised in comments and because of concerns that SIC 
and NAIC codes may change over time, which could unintentionally alter 
the scope of the rule.
    With regard to repowering, section II of today's notice discusses 
the scope of the final rule and specifically discusses the repowering 
issue. Section II also addresses other Phase I versus Phase II 
classification issues.
2. Thresholds
    Some commenters supported use of the 50 MGD design intake flow 
threshold and the 25 percent cooling water use criteria in Sec.  
125.91(a)(2) and (4), respectively. Some suggested that facilities 
agreeing to limit their actual intake to less than 50 MGD should be 
excluded from the rule's requirements or be allowed to request an 
exemption. Other commenters maintained that permitted or actual flows 
should be used rather than design flows. Some commenters asked that EPA 
clarify that,

[[Page 41611]]

when applicable, the lesser design value of an intake facility and 
conveyance structure versus the design volume of intake pumps should be 
used to determine the 50 MGD threshold for applicability. 
Alternatively, others asserted that EPA should provide guidance that a 
facility's design intake flow is not necessarily the flow associated 
with that of the intake pumps.
    Several commenters stated that emergency cooling water and 
emergency service water intakes should be exempt from the 50 MGD design 
intake flow threshold. These commenters recommended that EPA 
distinguish between primary cooling water intakes and emergency service 
water intakes, for example, at nuclear facilities. They reasoned that 
emergency service water systems, which can have a large design capacity 
(i.e., design capacity greater than 50 MGD), generally use an intake 
that normally operates a nominal amount of time to ensure that the 
system is in working order. Such back-up systems are required for 
safety, but under normal conditions do not increase the operational 
capacity of the facility. Thus, these commenters maintain that rarely 
used emergency service water should not count towards 50 MGD.
    With regard to the criterion that a Phase II existing facility must 
use at least 25 percent of the water it withdraws exclusively for 
cooling, some commenters indicated that proposed Sec.  125.91(d), which 
describes how to measure whether 25 percent of water withdrawn is used 
for cooling, was ambiguous. Commenters asserted that EPA should not 
require monthly determinations of applicability of the Phase II rule. 
One commenter suggested that EPA should assess the 25 percent cooling 
water use on an annual basis calculated once during permit renewal, 
since such an approach would provide a high degree of certainty.
    As discussed in the proposed rule (67 FR 17129-17130), EPA chose 
the design intake flow 50 MGD threshold to focus on the largest 
existing power generating facilities, which the Agency believes are 
those with the greatest potential to cause or contribute to adverse 
environmental impact. EPA estimates that the 50 MGD threshold would 
subject approximately 543 of 902 (60 percent) of existing power 
generating facilities to this rule and would address 90 percent of the 
total flow withdrawn by existing steam electric power generating 
facilities. The 25 percent threshold ensures that nearly all cooling 
water and the most significant facilities using cooling water intake 
structures are addressed by these requirements. EPA notes that Phase II 
existing facilities, which are limited to facilities whose primary 
activity is power generation, typically use far more than 25 percent of 
the water they withdraw for cooling. Yet, as in the new facility rule, 
cooling water that is used in a manufacturing process either before or 
after it is used for cooling would not count towards calculating the 
percentage of a facility's intake flow that is used for cooling 
purposes.
    EPA has retained in the final rule the 50 MGD threshold based on 
design intake flow, rather than actual flow, for several reasons. 
Design intake flow is a fixed value based on the design of the 
facility's operating system and the capacity of the circulating and 
other water intake pumps employed at the facility. This approach 
provides clarity--the design intake flow does not change, except in 
those limited circumstances when a facility undergoes major 
modifications or expansion, whereas actual flows can vary significantly 
over sometimes short periods of time. EPA believes that an uncertain 
regulatory status is undesirable because it impedes both compliance by 
the permittee and regulatory oversight, as well as achievement of the 
overall environmental objectives. Further, using actual flow may result 
in the NPDES permit being more intrusive to facility operation than 
necessary since facility flow would be a permit condition and 
adjustments to flow would have to be permissible under such conditions 
and applicable NPDES procedures. It also would require additional 
monitoring to confirm a facility's status, which imposes additional 
costs and information collection burdens, and it would require 
additional compliance monitoring and inspection methods and evaluation 
criteria, focusing on operational aspects of a facility.
    With regard to intake versus pump capacity, EPA notes that under 
Sec.  125.93 of the final rule, design intake flow means the value 
assigned (during the cooling water intake structure design) to the 
total volume of water withdrawn from a source waterbody over a specific 
time period. Because numerous aspects of a cooling water intake or 
system can limit a facility's intake flow, and because flow is a 
critical factor that affects the impacts posed by each facility's 
cooling water intake structures, EPA has determined that it is more 
appropriate for the final rule to focus on a facility's total designed 
volume of water withdrawn over a period of time, rather than to 
condition applicability of the rule on more specific parameters, such 
as intake capacity or pump design, which individually do not fully 
determine total design intake flow.
    The final rule does not explicitly exclude emergency cooling water 
and emergency service water intakes from consideration in determining 
which facilities are in-scope. Although EPA does not have detailed data 
on emergency cooling water and emergency intakes, based on other 
available data EPA does not believe that including consideration of 
emergency intakes within this rule significantly alters the scope of 
the rule. EPA's survey of all existing electric utilities and non-
utilities indicated that 84 percent of surveyed facilities have an 
average flow that equals or exceeds 50 MGD. These facilities would by 
necessity have a design intake flow that also equals or exceeds 50 MGD. 
Moreover, EPA assumes that this average flow data represent normal 
operating conditions and does not include emergency cooling water use. 
Consequently, EPA believes that relatively few facilities are 
potentially affected by this issue.
    Finally, Sec.  125.91(a)(4), which describes how a facility must 
determine whether it meets the 25 percent cooling water use criterion 
has been changed in the final rule and provides that the percent of 
cooling water used be measured on an average annual basis. EPA believes 
this approach is more appropriate than making this determination on an 
average monthly basis, primarily because the annual average is an 
easier measurement to make. Furthermore, because all Phase II existing 
facilities generate power, most of the water will be used for cooling, 
rendering monthly evaluation of this value unnecessary. The final rule 
does not specify how often the facility must measure flow for this 
annual average. The facility is encouraged to consult the Permit 
Director to determine what level of data collection is needed.

B. Environmental Impact Associated With Cooling Water Intake Structures

    Many comments addressed adverse environmental impact, questioning 
the definition and quantification of adverse environmental impacts. 
Several suggested defining adverse environmental impact exclusively at 
the population, community, or ecosystem levels, and believe that 
numbers of impinged and entrained organisms should not be a measure of 
adverse environmental impact. Some commenters argued that, if a 
facility can prove it does not cause adverse environmental impact at 
the population level, then it should be exempt from section 316(b) 
regulations. Commenters

[[Page 41612]]

cited numerous studies to illustrate whether cooling water intake 
structures cause adverse environmental impacts and claimed that where 
abundance or biomass falls, it was usually the result of some other 
stressor (overfishing, pollution, etc). These commenters asserted that 
populations are able to thrive despite high rates of impingement and 
entrainment because of density-dependence and compensation.
    Numerous other commenters disagreed with limiting the definition of 
adverse environmental impact to the population, community or ecosystem 
levels, and contended that any measure of impingement and entrainment 
constitutes adverse environmental impact. They asserted that power 
plants contribute to fish kills directly by impingement and 
entrainment, and indirectly by habitat loss. These commenters 
maintained that the results of population or ecosystem studies are 
highly subjective, and have no place in determining BTA, as once such 
impact levels are reached, recovery is often impossible. Regardless of 
the severity of adverse environmental impact, these commenters argued 
that section 316(b) requires minimization of adverse environmental 
impact. They maintained that cooling water intake structures contribute 
to fishery collapse and vast reductions in fish biomass and abundance 
that are measurable at the species level. These commenters suggested 
that actual national impacts due to cooling water intake structures are 
vastly underestimated due to poor data collection methodologies 
utilized when the majority of the studies were performed and because 
studies performed on impinged and entrained organisms overlooked the 
vast majority of affected species.
    In today's final rule, EPA has elected not to define adverse 
environmental impact. EPA believes that it is reasonable to interpret 
adverse environmental impact as the loss of aquatic organisms due to 
impingement and entrainment. For a further discussion of this issue, 
see Section IV above.
    With regard to the relationship between intake flow and adverse 
environmental impact, some commenters asserted that the relationship of 
impingement and entrainment to flow is such that catch rates increase 
non-linearly (exponentially) in relation to the volume of water 
withdrawn, with entrainment rates being more strongly correlated to 
flow than impingement. Environmental commenters advocated for flow 
reduction technologies, such as retrofitting closed-cycle cooling 
technologies, as the most direct means of reducing fish kills from 
power plant intakes; they assert that reducing intake by up to 98 to 99 
percent would result in a similarly high reduction of impinged and 
entrained organisms. Other commenters insisted that there is no 
statistically significant relationship between catch rate and flow, and 
the mathematical models that evaluate this relationship are inaccurate.
    EPA believes the record contains ample evidence to support the 
proposition that entrainment is related to flow (see DCN 2-013L-R15 and 
2-013J) while impingement is related to a combination of flow, intake 
velocity and fish swim speed (see DCN 2-029). Larger withdrawals of 
water may result in commensurately greater levels of entrainment. 
Entrainment impacts of cooling water intake structures are closely 
linked to the amount of water passing through the intake structure 
because the eggs and larvae of some aquatic species are free-floating 
and may be drawn with the flow of cooling water into an intake 
structure. Swim speeds of affected species as well as intake velocity 
must be taken into account to predict rates of impingement in relation 
to flow in order to account for the ability of juvenile and adult 
lifestages of species to avoid impingement. Due to this relationship, 
EPA agrees that reducing intake by installing flow reduction 
technologies will result in a similarly high reduction of impinged and 
entrained organisms, but EPA believes that other technologies that do 
not necessarily reduce flow but that do reduce the number of aquatic 
organisms impinged and entrained will also minimize adverse 
environmental impact associated with cooling water intake structures. 
As such, today's rule provides for flexibility in meeting the 
performance standards.

C. Performance Standards

    The performance standards promulgated today are expressed as 
reductions of impingement and entrainment measured against a 
calculation baseline. The purpose of a calculation baseline is to 
properly credit facilities that have installed control technologies 
prior to the promulgation of the rule. EPA received numerous comments 
on the performance standards and the calculation baseline.
1. Appropriate Standards
    Many commenters discussed the appropriateness of the performance 
standards. While many commenters acknowledged that the performance 
range may be attained at some facilities (using certain technologies 
and in appropriate conditions), several commenters stated that the 
technical justification for the performance standards was insufficient 
and may be biased towards higher performing examples of each 
technology. Many commenters submitted that some technologies will 
perform at some sites, but that no technology will meet the standards 
at all sites. Another commenter supported the concept of the 
performance standards, as long as sufficient flexibility was retained 
through the use of restoration measures and cost tests. Some commenters 
suggested allowing permit writers the flexibility to create site-
specific performance standards.
    EPA has selected performance standards to facilitate a more 
streamlined permitting process, and to provide consistent national 
standards. EPA has chosen to express the targets by reference to a 
percentage reduction in impingement and entrainment because, as 
discussed above, these losses can easily be traced to cooling water 
intake structures. Therefore, this is a convenient indicator of the 
efficacy of controls in reducing environmental impact. As discussed in 
more detail below, it is also a useful basis against which to consider 
the efficacy of restoration technologies, which focus on the 
replacement of fish and shellfish as an alternative means of minimizing 
adverse environmental impact of intake structures.
    Additional documentation has been collected and reviewed by EPA to 
further support the percent reductions contained in the performance 
standards. EPA has added this information to the Technology Efficacy 
database (DCN 6-5000), which EPA has expanded to allow users to query 
and compare basic data on technology performance and applicability. EPA 
recognizes that some may disagree with basing the performance standards 
on the wide range of data available in the database. While many 
documents do show a level of success in reducing impingement mortality 
or entrainment, other studies have shown the deployed technology to be 
unsuccessful or at best inconclusive. EPA does not view the varying 
degrees of success with regards to a specific technology as indicative 
that the performance standards cannot be met, but rather as evidence 
that some technologies work in some applications but not in others.
    It is for this reason that performance standards, rather than 
prescriptive technologies, were chosen. By opting for performance 
standards instead of requiring the deployment of specified 
technologies, EPA maintains a desired

[[Page 41613]]

flexibility in the implementation of the rule, thus allowing a facility 
to select measures that are appropriate to the site conditions and 
facility configuration. EPA believes that there are technologies 
available (including restoration measures) that can be used to meet the 
performance standards at the majority of facilities subject to the 
final Phase II rule. EPA believes that it will likely be the 
exceptional case where no technology or suite of technologies will be 
able to achieve the performance standards. This is not to say, however, 
that the technologies are always economically practicable to implement; 
there may be situations where the costs are not justified and it is for 
those situations that EPA has provided for site-specific determinations 
of best available technology for minimizing adverse environmental 
impact.
2. Application of the Performance Standards
    Commenters generally noted that the application of the performance 
standards would be very difficult, for a number of site-specific 
reasons. Several commenters noted that the performance standards are 
not sufficiently defined to make a full evaluation of their 
applicability. For example, EPA has not defined the performance 
standards as being measured using all species or selected species, or 
by counting individuals versus measuring biomass. Some commenters noted 
that each of the methods discussed by EPA could have merit at a given 
facility, and that flexibility would be needed to evaluate compliance 
at a variety of intake configurations. Another commenter further noted 
that it is inappropriate for EPA to state that the performance 
standards are achievable when the standards are undefined. One 
commenter suggested that EPA has not shown that the performance 
standards can be met at a reasonable cost. Other commenters stated that 
reductions may be achievable for only some species of life stages and 
that this approach may not account for natural fluctuations in 
population. These commenters claim that implementing a uniform, 
nationwide performance standard would be exceedingly complex and 
subject to site-specific factors that could significantly affect the 
performance of the control technology. Several commenters noted that, 
for these reasons, EPA should strongly consider a site-specific 
approach to implement 316(b), including a risk assessment-based 
approach as suggested by one commenter.
    A number of commenters stated that the performance standards would 
be best implemented as a set of goals or as a best management practice. 
These commenters contended that in view of the wide variety of 
environmental conditions at facilities, including natural fluctuations 
in populations, compliance with a national performance standard will be 
difficult. They claimed that by using the standards as a goal instead 
of a condition in the permit, a facility can have greater certainty as 
to its compliance status. Similarly, several commenters suggested that 
the permit contain conditions requiring proper technology selection, 
installation, maintenance, and adjustments instead of requiring 
compliance with the performance standards.
    Commenters were divided over the concept of a range for the 
performance standards. Some commenters supported the range, arguing 
that a facility can achieve some reduction within the range and still 
be compliant, and others were opposed, claiming that a range of 
performance promotes uncertainty in determining compliance. Some 
commenters also noted that, by giving a facility a range of 
performance, EPA is encouraging performance in the lower end of the 
range and therefore not meeting the definition of ``best technology 
available.''
    Several commenters noted that consideration of entrainment 
mortality is important to correctly determine compliance. One commenter 
also noted that natural events will affect compliance, such as moribund 
fish being swept into an intake or heavy debris loads following a 
storm.
    As in the Phase I rule, EPA is setting performance standards for 
minimizing adverse environmental impact based on a conceptually simple 
and certain metric-reduction of impingement mortality and entrainment. 
EPA recognizes however, that there are challenges associated with 
measuring such reduction due to fluctuations in waterbody conditions 
(species abundance, composition, etc.) over time. While it is 
relatively straightforward to measure impingement mortality and 
entrainment reductions relative to past levels, it is more difficult to 
determine reductions relative to what would have occurred in the 
absence of control technologies if waterbody conditions change after 
the technologies are installed. Data provided with the proposed rule 
(DCN 4-0003) indicate that there is substantial variability over time 
in the numbers and species mix of impinged and entrained organisms at 
any given facility. While changes in operational practices and sampling 
methods account for some of this variability, the data indicate that 
there may be substantial natural variability in waterbody conditions as 
well. This natural variability and the changes to species composition 
over time may affect the ability of these technologies to perform 
consistently at a certain level. This is one reason why EPA has 
provided a compliance determination alternative under which facilities 
comply with the construction, operational, maintenance, monitoring, and 
adaptive management requirements of a Technology Installation and 
Operation Plan (or Restoration Plan) designed to meet the performance 
standards, rather than having to demonstrate quantitatively that they 
are consistently meeting them, which may be difficult in the face of 
natural variability. Under this approach, if monitoring data suggest 
that performance standards are not being met despite full compliance 
with the terms of the Technology Installation and Operations Plan or 
the Restoration Plan, the Plan will need to be adjusted to improve 
performance.
    EPA has provided examples of facilities in different areas of the 
country sited on different waterbody types that are currently meeting 
or exceeding the performance standards promulgated today. The ability 
of these facilities to attain similar performance standards suggests 
that while site-specific factors can influence the performance of a 
given technology, it is the exceptional situation where no design or 
construction technology is capable of meeting the performance 
standards. EPA opted for performance ranges instead of specific 
compliance thresholds to allow both the permittee and the permitting 
authority a certain degree of flexibility in meeting the obligations 
under the final Phase II rule. EPA does not believe that performance 
ranges promote uncertainty. Instead, EPA has selected performance 
ranges out of the recognition that precise results may not be able to 
be replicated in different waterbody types in different areas of the 
country. EPA disagrees with the comment that it has not shown that the 
performance standards can be met at a reasonable cost. The cost and 
economic impact analysis for the final rule supports EPA's 
determination that the final rule, including the performance standards, 
are economically practicable at a national level. In addition, the 
final rule includes a site-specific compliance alternative to address 
any potential situation where meeting the performance standards, when 
evaluated on a facility-specific basis, would result in costs that are 
significantly greater than the costs

[[Page 41614]]

considered by EPA, for a like facility in establishing the standards, 
or that are significantly greater than the benefits of compliance with 
the applicable performance standards at the facility. Thus, the final 
rule ensures that the costs of the rule are economically practicable to 
the extent required by section 316(b).
    In developing the final rule, EPA identified and examined a broad 
range of cooling water intake structure technologies and determined, at 
a national level, that these technologies support the final performance 
standards. EPA notes that, although the performance standards address 
all life stages of fish and shellfish, the Director has significant 
discretion as to how the performance standards are applied in the 
permit. For example, the Director may determine that all species must 
be considered or that only representative species are to be considered. 
With regard to natural fluctuations in fish and shellfish populations, 
and the Technology Installation and Operation Plan compliance scheme 
discussed above addresses the concern that natural fluctuations could 
impact the level of impingement mortality and entrainment at a given 
facility over time. Further, the Director is given considerable 
discretion to determine, based on the facility's Comprehensive 
Demonstration Study, the appropriate averaging period and precise 
metric for determining impingement mortality and entrainment 
reductions. Generally, averaging over longer time periods (i.e., a full 
five year permit term) can substantially reduce the impact of natural 
variability on the determination of whether the performance standards 
are being met.
3. Requirements by Waterbody Type
    As stated in section C. 2, different performance standards would 
apply for facilities located upon different waterbody types. Comments 
were received both in support of and against basing performance 
standards in part on waterbody type. Some commenters did not support 
the withdrawal threshold of 5 percent of the mean annual flow for 
facilities on freshwater rivers, as the organisms at an intake may not 
be subject to entrainment or may not be evenly distributed. Some State 
commenters supported the withdrawal threshold for freshwater rivers, 
and another suggested correlating the intake flow requirements with the 
total flow of the waterbody to better protect smaller flow rivers. One 
State commenter generally opposed all of the proposed thresholds on 
freshwater rivers as being arbitrary and stated that the regulations 
would be more effective by considering the impacts to the population 
within the waterbody. For lakes and reservoirs, one commenter opposed 
the requirement to not disturb the thermal stratification of the 
waterbody, stating that the requirement has not been defined in 
sufficient detail, that EPA has presented no evidence that the 
disruption is always detrimental, or presented any discussion of 
technologies that might mitigate any thermal disturbances. Some 
commenters did not support additional controls on the Great Lakes, 
stating that the Lakes are not unique and do not require greater 
protection. Another State commenter suggested that additional 
requirements be implemented for any impaired waterbody.
    EPA considers location to be an important factor in addressing 
adverse environmental impact and one expressly included in the language 
of section 316(b). When cooling water is withdrawn from sensitive 
biological areas, there is a heightened potential for adverse 
environmental impact, since these areas typically have higher 
concentrations of impingeable and entrainable aquatic organisms. 
Therefore, the final rule includes performance standards that vary, in 
part, by waterbody type. For example, estuaries and tidal rivers have a 
higher potential for adverse impact because they contain essential 
habitat and nursery areas for a majority of commercial and recreational 
species of fish and shellfish. Therefore, EPA believes that these areas 
warrant a higher level of control that includes both impingement and 
entrainment controls.
    EPA also included performance standards for other waterbody types. 
Facilities withdrawing greater than 5% of the mean annual flow from 
freshwater rivers and streams will have additional requirements. As 
described in the Phase I proposed rule (65 FR 49060) and the Phase II 
NODA (66 FR 28853), the withdrawal threshold is based on the concept 
that absent any other controls, withdrawal of a unit volume of water 
from a waterbody will result in the entrainment of an equivalent unit 
of aquatic life (such as eggs and larval organisms) suspended in that 
volume of the water column. Thus, facilities withdrawing greater than 
5% of the mean annual flow from freshwater rivers and streams may 
entrain equal proportions of aquatic organisms. Freshwater rivers and 
streams are somewhat less susceptible to entrainment than certain other 
categories of waterbodies and, therefore, the final rule limits the 
requirement for entrainment control in fresh waters to those facilities 
that withdraw the largest proportion of water from freshwater rivers or 
streams. EPA has promulgated special requirements for facilities 
withdrawing from lakes and reservoirs. Facilities tend to withdraw from 
the deeper portions of lakes and reservoirs, as these areas hold the 
coolest water. The rule specifies that the intake flows must not 
disturb the natural stratification (thermoclines) in the waterbody, as 
this may disrupt the composition of dissolved oxygen and adversely 
affect aquatic species. While such disruption is often detrimental, 
this additional performance standard does not apply where the 
disruption does not adversely affect the management of fisheries. 
Intake location, the volume of water withdrawn, and other design 
technologies can be used to address this requirement. Facilities 
located on the Great Lakes are also subject to additional requirements 
because these waterbodies have areas of high productivity and sensitive 
habitat and in this respect have an ecological significance akin to 
estuaries.
4. Approved Design and Construction Technology Option
    In response to comments on the burden to facilities and permit 
writers, EPA is including in the final rule an approved design and 
construction technology option (previously referred to as a 
``streamlined technology option'' or ``pre-approved technology 
option'') for facilities in certain locations. Under this option, a 
facility installing a specified technology would be subject to reduced 
application requirements, including a reduced Comprehensive 
Demonstration Study. In addition, the final rule sets forth criteria 
that State Directors may use to identify and approve additional 
technologies.
    Nearly all commenters supported the concept of an approved design 
and construction technology option as a positive step in facilitating 
implementation of section 316(b). Several commenters added that this 
option should not preclude the use of cost tests, restoration measures 
or the use of other approaches. One commenter opposed the approved 
design and construction technology option, arguing that the selection 
of only one or two technologies oversimplifies the complexity of 
waterbodies, and that the approach would not be sufficiently 
protective.
    Some commenters agreed that the wedgewire screen should be an 
effective technology in certain situations and noted that EPA should 
specify screen slot openings in the approved design

[[Page 41615]]

and construction technology option. One of the commenters stated that 
research on the wedgewire screen suggests that the technology should 
easily meet the impingement requirements, but that further research may 
be necessary to confirm the effectiveness for entrainment reductions 
with varying slot openings.
    Some commenters offered suggestions for additional changes to the 
option, such as developing scientifically sound, peer-reviewed criteria 
for evaluating pre-approved technologies, identifying the technologies 
in technical guidance documents as opposed to the regulation, and 
continuing to allow restoration measures. Some commenters also 
suggested specifying that any monitoring performed would be 
informational in nature and not affect the facility's compliance 
status, or that facilities only be required to ``substantially meet'' 
the stated goals. Other commenters suggested expanding the scope of the 
approved design and construction technology option to include 
prescribed operational or restoration measures or preapproved 
technologies for intakes located on man-made cooling reservoirs.
    A facility that chooses to comply under the pre-approved technology 
option should not, in addition, need to employ restoration measures. 
The intent of the pre-approved technology compliance alternative is to 
provide a means to reduce the application and information collection 
requirements for facilities that are able to meet performance standards 
through a technology that is proven to meet performance standards for 
impingement mortality and entrainment in most cases. A facility that 
chooses to comply by meeting the conditions specified at Sec.  
125.99(a), therefore, should be able to achieve the performance 
standards for both impingement mortality and entrainment. Facilities 
that propose an alternative technology for consideration as a pre-
approved technology under Sec.  125.99(b) are encouraged by EPA to 
propose technologies to the Director for approval that are capable of 
meeting performance standards for both impingement mortality and 
entrainment with a high degree of confidence. However, a situation 
could arise where a pre-approved technology only meets performance 
standards for impingement mortality or entrainment. In such cases, 
facilities that choose to comply using an approved design and 
construction technology that only met a subset of applicable 
performance standards could either employ other (1) design and 
construction technologies, operational measures and/or restoration 
measures or (2) request a site-specific requirements for the remaining 
performance standards based on either the cost-cost or cost-benefit 
test.
    Some commenters stated that EPA should specify the wedgewire screen 
slot opening size. EPA disagrees that it should specify a uniform 
screen slot opening size for all facilities that choose the approved 
design and construction technology alternative. The rule states in 
Sec.  125.99(a)(1)(iv) that the screen slot size must be appropriate 
for the size of eggs, larvae, and juveniles of all fish and shellfish 
to be protected from entrainment at the site. Because the species to be 
protected differ among locations, the slot sizes will need to be 
tailored to the sizes of the various assemblages of species at each 
site. EPA therefore has determined that the Director should determine 
the appropriate design criteria, such as wedgewire screen slot opening 
size, on a case-by-case basis. Since no impingement mortality and 
entrainment Characterization Study is required under this streamlined 
option, EPA expects that this determination would be based on available 
information regarding species and life-stage composition of organisms 
within the receiving waterbodies. Facilities may wish to assemble 
available data and propose a screen slot opening size for the 
Director's consideration.
    Some commenters stated that EPA should develop peer-reviewed 
criteria for evaluating pre-approved technologies other than the 
wedgewire screen technology described in Sec.  125.99(a). EPA disagrees 
that it needs to develop specific criteria for evaluating pre-approved 
technologies. EPA believes that the Director is best equipped to 
determine the most appropriate technologies for approval in their 
jurisdictions, since these Directors are most familiar with the site-
conditions and intake configurations of the facilities within their 
jurisdictions, and have physical access to the facilities. Under Sec.  
125.99, EPA has set forth a broad framework outlining the types of 
information that the permitting authority would need to evaluate 
specific technologies, including design criteria of the proposed 
technology, site characteristics and conditions necessary to ensure 
that the technology will meet the performance standards, and data to 
demonstrate that the facilities in the Director's jurisdiction with the 
proposed technology and site conditions will be able to meet the 
performance standards in Sec.  125.94(b). EPA believes that the 
Directors will be able to evaluate the data and make determinations as 
to whether the proposed technologies are suitable for use as approved 
design and construction technologies in their jurisdictions. However, 
EPA is requiring that the Director take public comment on such 
determinations prior to finalizing them.
    In answer to comments that EPA should not require facilities 
choosing the approved design and construction compliance alternative to 
demonstrate through monitoring that they meet the applicable 
performance standards, EPA disagrees. EPA believes that verification 
monitoring is very important because, while the pre-approved 
technologies are designed to meet the performance standards in most 
cases, the actual efficacy of any technology will be affected by site-
specific circumstances and conditions, as well as proper operation and 
maintenance of the technology. For this reason, EPA believes that it is 
necessary and appropriate for these facilities to prepare a Technology 
Installation and Operation Plan that describes how they will operate 
and maintain the technology and assess success in meeting the 
performance standards, as well as adaptive management steps they will 
take if the technology does not perform as expected. They must also 
propose a Verification Monitoring Plan to describe the monitoring they 
will perform to support their performance assessment. EPA notes that 
facilities that select the approved technology alternative have 
significantly reduced application and information collection 
requirements relative to facilities that comply under other 
alternatives.
    One commenter stated that the approved design and construction 
technology alternative will not be sufficiently protective given the 
complexity of waterbodies. While EPA does not agree with this comment, 
EPA recognizes that the efficacy of a given technology will be affected 
by site-specific conditions, such as biological and chemical factors in 
the waterbody. Because the efficacy of the technology will be affected 
by such site-specific conditions, EPA has required all facilities that 
choose to comply using the approved design and construction technology 
compliance alternative to submit a Technology Installation and 
Operation Plan and a Verification Monitoring Plan, and to determine if 
they are meeting the applicable performance standards through 
monitoring, and adjust their operations accordingly if they are not. 
EPA believes, based upon extensive research, that the majority of 
facilities with the appropriate site conditions, and that have 
installed and properly operated

[[Page 41616]]

and maintained submerged cylindrical wedgewire screen technology, 
should be capable of meeting the performance standards set forth in 
Sec.  125.94(b). For facilities that fail to meet performance standards 
through the approved design and technology alternative, the Director 
may amend the facility's permit to require the use of additional design 
and construction technologies, operational measures, and/or restoration 
measures, in order to meet the performance standards, or if 
appropriate, issue a site-specific determination of BTA.
5. Capacity Utilization Threshold
    In the proposed rule, EPA introduced reduced requirements for 
facilities that are typically not operating year-round and would 
therefore bear a proportionately higher cost to comply with the rule. 
EPA proposed that facilities that operate less than 15% of the time 
(also known as peaking facilities) would only be subject to impingement 
reductions, regardless of the waterbody type upon which the facility is 
located.
    Generally, commenters supported the concept of reduced requirements 
for peaking facilities. However, commenters stated that EPA must 
further refine the definition of peaking facilities and in many cases 
suggested that EPA adopt the United States Department of Energy's 
definition of capacity utilization. Aspects of EPA's definition on 
which commenters requested clarification included how to measure the 
capacity rate (per intake, per facility, per generating unit, etc.), 
the time frame for determining historic utilization rates, and the 
definition of ``available'' with respect to how to calculate the 
capacity utilization rate. One commenter further suggested that EPA 
allow an expanded definition (i.e., a higher capacity utilization rate) 
for facilities that typically operate in periods of low abundance of 
entrainable organisms. One commenter further requested that the reduced 
requirements for peaking facilities be extended to account for future 
operations at the plant as well. Another commenter expressed concern 
over the definition of the threshold, as the operational time for the 
facility could still coincide with periods of high abundances of 
organisms and therefore still result in significant entrainment. One 
commenter opposed the threshold, stating it could encourage facilities 
to reduce electricity production in order to have less stringent 
requirements and therefore impact energy production, prices, and energy 
supply nationwide.
    State commenters generally supported the concept, but were divided 
as to the threshold utilization rate; some States preferred a lower 
threshold and one mentioned that it would prefer a higher threshold. 
One State did not support the reduced requirements for peaking 
facilities, noting that the time frame in which the facility operates 
may be more important than the volume withdrawn. Another State 
suggested that restoration or mitigation also be required of peaking 
facilities.
    EPA has identified peaking facilities in the final Phase II rule as 
those facilities that operate at an overall capacity of less than 15 
percent. EPA believes that facilities operating below 15% should be 
subject to less stringent compliance requirements relative to a typical 
base load facility. The threshold of 15% is based on these facilities' 
reduced operating levels, low potential for entrainment impacts, and 
consideration of economic practicability (see, 67 FR 17141). To address 
commenter concerns, EPA has modified the capacity utilization 
definition to say that the capacity utilization rate applies only to 
that portion of the facility that generates electricity for 
transmission or sale using a thermal cycle employing the steam water 
system as the thermodynamic medium. The Agency has amended the 
definition of the capacity utilization rate threshold to remove the 
term ``available'' from the definition, as requested by comments. 
Further, the Agency has allowed for calculation of the capacity 
utilization rate on an intake basis, when the intake is exclusively 
dedicated to a subset of the plant's generating units, and for 
determination of the capacity utilization rate based on a binding 
commitment of future operation below the threshold.
    Peaking facilities are typically older, less efficient generating 
units. Because the cost of operation is higher, peaking facilities are 
generally employed when generating demand is greatest and economic 
conditions justify their use. Such usage is typically a fraction of the 
unit's overall generating capacity and represents significantly less 
cooling water used when compared to the design intake capacity. This 
would appear to obviate the need for entrainment controls for the 
facility.
    Most peaking facilities are employed during the highest electrical 
demand period, typically mid-winter or mid-summer. It is generally 
accepted that while these seasons can sometimes be associated with a 
higher abundance of aquatic organisms or spawning events, mid-winter 
and mid-summer are not typically considered to be critical periods for 
aquatic communities. Given these operating conditions, generally 
entrainment controls would appear to be an unnecessary cost for these 
facilities because the losses, while they occur, would have minimal 
adverse environmental impact.

D. Site-Specific Approach

    Past implementation of section 316(b) often followed the draft 
guidance document published in 1977, which promoted a largely site-
specific approach. In this rulemaking, EPA is establishing national 
performance standards for best technology available for minimizing 
adverse environmental impacts in connection with cooling water intake 
structures. Many comments were received regarding a site-specific 
approach to implementation.
1. Approach
    Many commenters favored a site-specific approach in place of 
national performance standards. Many of the commenters cited a need for 
flexibility to comply with the regulations, and stated that only a 
site-specific approach can represent the best framework for addressing 
site-specific environmental impacts in a cost-effective manner. 
Commenters also favored an approach that resembles current practices 
for implementation of 316(b), in which site-specific determinations are 
made without reference to national performance standards.
    Some commenters did not support the concept of a site-specific 
rule. One commenter stated that it does not fulfill a national standard 
and allows a more lenient application for some facilities. Another 
commenter added that a site-specific approach favors industry, as the 
resources of the regulators and interested public groups to respond to 
information-intensive site-specific determinations are limited. Some 
States also expressed concern over a site-specific approach, as it 
could be less stringent than the present approach, as well as more 
burdensome. Some other States expressed support for site-specific 
approaches.
    In the final rule, EPA has established national performance 
requirements for the reduction of impingement mortality and entrainment 
that reflect best technology available to minimize adverse 
environmental impact for Phase II existing facilities, and has 
authorized five different compliance alternatives to achieve those 
standards, including a site-specific alternative. Thus, the Agency has 
provided both clear national standards of environmental protection and 
sufficient flexibility to allow for the selection of cost-efficient 
approaches to compliance and permit administration. In addition, under 
certain compliance alternatives, Phase II existing facilities

[[Page 41617]]

can use restoration measures, either in lieu of, or in combination with 
technologies and/or operational measures, when design and construction 
and/or operational measures alone are less feasible, less cost-
effective or less environmentally desirable. This provides additional 
flexibility to permittees and permitting agencies. Finally, as 
discussed in Section VII of this preamble, EPA does not agree that all 
aspects of certain site-specific approaches effectively fulfill the 
requirements of section 316(b).
2. Existing Programs and Determinations
    Several commenters stated that there is already a successful 30-
year history of implementing section 316(b). Some commenters noted that 
many States currently implement 316(b) using a site-specific approach 
and that these programs should be allowed to continue, including any 
restoration or enhancement programs the States have established. Others 
stated that existing BTA determinations (conducted using a site-
specific approach) should remain valid.
    EPA acknowledges that some States' existing programs and 
determinations have been successful in reducing adverse environmental 
impacts to waters of the United States associated with cooling water 
intake structures. EPA disagrees, however, that all existing BTA 
determinations should remain valid. Some historical BTA decisions may 
be based on physical, chemical or biological conditions that are no 
longer relevant at the site, or reflect BTA technology that is outdated 
and would not meet the performance standards set forth in today's final 
rule. However, the final rule provides for EPA approval of alternative 
State program requirements where such State NPDES requirements will 
result in environmental performance within a watershed that is 
comparable to the reductions of impingement mortality and entrainment 
that would otherwise be achieved under Sec.  125.94. (see Sec.  
125.90(c)). Thus, this rule provides a reasonable degree of flexibility 
for States to implement existing effective programs. In Sec.  
125.94(e), States are also allowed to establish more stringent BTA 
requirements if necessary to comply with State, tribal, or other 
federal law.

E. Implementation

1. Calculation Baseline
    Numerous commenters indicated that they were unclear as to how to 
calculate the baseline conditions for impingement mortality and 
entrainment. Some commenters suggested that the calculation baseline 
should reflect unrestricted operation at full design capacity year-
round to avoid continually changing the baseline, since maintenance and 
operational schedules change over time. Another commenter added that 
the baseline definition must specify that data be based upon maximum 
operation of a given facility, to avoid allowing a facility to withdraw 
more water than it has been permitted for (based on an averaged flow). 
Other commenters claimed that the use of a calculation baseline was 
problematic due to the difficulties of extrapolation between localities 
and waterbody types. One commenter asserted that the calculation 
baseline should reflect current local environmental conditions, not 
historical or hypothetical future conditions and should specify the 
level of operation that would be maintained in the absence of 
operational controls implemented for reducing impingement and 
entrainment.
    Many commenters supported an ``As Built'' alternative approach 
where a facility would calculate entrainment reduction based on 
historical measurements before installation of new technology or 
sampling immediately in front of the new technology and enumerating the 
organisms of a size that will pass through a standard \3/8\-inch 
screen. Several commenters agreed that the use of historical data would 
aid in estimating the calculation baseline while others cautioned 
against the use of historical data that may not be relevant to the 
current conditions. One commenter disagreed with EPA's statement that 
the baseline could be estimated by evaluating existing data from a 
nearby facility; the commenter asserted that site-specific factors 
determine whether an organism will interact with a cooling water intake 
structure and/or survive the interaction. Overall, most commenters 
recommended that EPA allow the Director broad discretion and 
flexibility in evaluating the calculation baseline due to varying site 
conditions.
    The calculation baseline provides a standard intake configuration 
by which facilities can determine relative reductions in impingement 
and entrainment. EPA acknowledges the numerous comments on the proposed 
definition and has refined the definition to provide more clarity in 
implementing this concept. For example, the definition in the proposed 
rule incorporated a shoreline intake structure. In the final rule, the 
definition has been clarified to specify a \3/8\-inch mesh traveling 
screen at a shoreline intake structure. Based on available data that 
indicate this is a common intake structure configuration at Phase II 
existing facilities, EPA designated a \3/8\-inch screen as the standard 
mesh size against which reductions will be calculated. Similarly, the 
assumption of no impingement or entrainment controls in the definition 
in the proposed rule has been clarified to describe an intake where the 
baseline operations do not take into include any procedures or 
technologies to reduce impingement or entrainment. EPA recognizes that 
some facilities may have control technologies in place that already 
reduce impingement or entrainment; the final calculation baseline would 
allow credit for such reductions. Additionally, EPA further clarified 
the definition to include the potential data sources that may be used 
in defining the calculation baseline, such as historical data, data 
collected at nearby locations, or data collected at the facility. EPA 
is authorizing the use of existing biological data in determining the 
calculation baseline to minimize the impacts to facilities, provided 
that the data are representative of current facility and/or waterbody 
conditions (as applicable) and were collected using appropriate quality 
control procedures.
    EPA has further clarified the definition to provide that the 
calculation baseline may be based on an intake structure located at a 
depth other than a surface intake if the facility can demonstrate that 
the standard definition (i.e., a shoreline surface intake) would 
correspond to a higher baseline level of impingement mortality and/or 
entrainment.
    EPA chose not to incorporate operating capacity into the 
calculation baseline, as the definition is not dependent upon intake 
flow volumes. EPA has chosen to adopt the ``as built'' approach: as 
stated in Sec.  125.93, a facility may choose to use the current level 
of impingement mortality and entrainment as the calculation baseline.
    EPA recognizes that this definition cannot address the variety of 
intake configurations and other conditions at all facilities and 
therefore cannot define the calculation baseline in all settings. 
However, EPA believes that the calculation baseline in the final rule 
is clear and straightforward to implement, and allows for proactive 
facilities (i.e., those with control technologies, operational 
procedures, or restoration measures already in place) to take credit 
for existing measures.
2. How Will Attainment of the Standards Be Measured?
    At the time of the NODA, EPA was evaluating several approaches for

[[Page 41618]]

measuring success in meeting performance standards. EPA therefore 
requested comments on whether performance should be measured based on 
an assessment of the impacts to all fish and shellfish species (``all-
species approach'') or to fish and shellfish from only a subset of 
species determined to be representative of all the species that have 
the potential to be impinged or entrained (``representative species 
approach''). These comments are addressed under section 2. a below. 
Several terms to describe the representative species approach have been 
used historically. To avoid confusion among the terms ``representative 
indicator species,'' ``representative important species,'' and 
``critical aquatic organisms,'' EPA is adopting the term 
``representative species'' for the purpose of simplicity in this 
section. EPA also requested comment as to whether enumeration of 
organisms or biomass should be used as the metric for measuring success 
in meeting the performance standards. These comments are addressed in 
section 2. b below. With regard to counting absolute numbers of 
organisms, EPA also requested comment on the option of counting 
undifferentiated organisms (i.e., counting without specifying taxonomic 
identification).
    After attempting to select optimal approaches for both the scope 
and metric to use in determining attainment of the performance 
standards, EPA has determined site-specific factors such as biological 
assemblage at the site, intake location, and waterbody type must be 
factored into decisions regarding how to evaluate attainment. EPA has 
therefore decided that, in its Verification Monitoring Plan 
(125.95(b)(7)), the facility must propose, among other things, the 
parameters to be monitored for determining attainment. The Director 
will be best suited to review and approve proposed parameters for each 
facility on a case-by-case basis.
a. Scope of Evaluation: All-Species Consideration vs. Representative 
Species
    Several commenters supported the use of a representative species 
evaluation, as opposed to the all-species evaluation, as the most 
practical approach in many cases. Another commenter stated that even 
with the representative species approach, factors other than simply 
numeric reduction in impingement mortality and entrainment must be 
considered when determining attainment. On the other hand, one 
commenter stated that an ``all species'' approach could make compliance 
demonstrations simpler and somewhat less expensive so long as the 
taxonomic identity of collected organisms is not required. The 
commenter noted that this would not be appropriate, however, in cases 
where taxonomic identification is needed, such as where eggs and larval 
stages are converted to age-1 equivalents.
    As part of the representative species inquiry, EPA also requested 
comment on whether 10 to 15 species might be an appropriate number of 
representative species to protect all species and ecosystem functions 
at a facility. One commenter responded, stating that 15 was too large a 
number. This commenter suggested that a demonstration should focus on 
the four or five species and add to the list only if there was another 
species of special concern.
    In response to the commenter who suggested that EPA should evaluate 
factors other than reduction in numbers of organisms impinged or 
entrained, EPA has selected several means by which to determine 
compliance with section 316(b) requirements. For facilities that choose 
to demonstrate compliance with the performance standards, the metric 
that will be used to evaluate compliance with the performance standards 
is the facility's reduction of impingement mortality and entrainment 
through the installation of design and control technologies and/or 
operational measures. For these facilities, compliance may then be 
measured against a facility's calculation baseline, which the facility 
estimates and submits with its permit application package. The 
calculation baseline is defined at Sec.  125.93. For facilities that 
choose to use compliance with the terms of a Technology Installation 
and Operation Plan or Restoration Plan to determine compliance, the 
degree of success in meeting performance standards is still an 
important criteria for determining if adaptive management is needed, 
but it would not be the basis for determining compliance. For 
facilities that choose to use restoration measures, attainment of 
performance standards will be based upon whether the production of fish 
and shellfish from the restoration measures is substantially similar to 
the level of fish and shellfish the facility would achieve by meeting 
the applicable impingement and/or entrainment requirements. If a 
facility has been approved for a site-specific determination of best 
technology available, the Director will establish alternate 
requirements accordingly. EPA expects that a variety of factors will be 
considered in determining the appropriate compliance option for a 
facility, such as waterbody type, intake location, percentage 
withdrawal of mean annual flow of rivers or streams, capacity to upset 
thermal stratification in lakes, a facility's calculation baseline, and 
the appropriateness of existing or proposed protective technologies or 
measures.
    EPA agrees that a single approach may not be optimal in all cases. 
The Agency has therefore not prescribed the methods (including a 
metric) for assessing success in meeting performance standards in 
today's final rule. Rather, the Director must determine whether a 
clearly defined all-species approach or representative species approach 
is appropriate on a case-by case basis, based upon the information and 
proposed methods presented by the facility. The Director may choose to 
require evaluation of all species or of certain representative species.
    In response to comments regarding EPA's suggested number of 
representative species, the facility will propose the number of species 
to monitor, as well as decisions regarding species and life stages to 
monitor, for review and approval by the Director as part of 
Verification Monitoring Plan (125.95(b)(7)), Technology Installation 
and Operation Plan (125.95(b)(4)(ii)), and, if applicable, the 
Restoration Plan required at 125.95(b)(5). As such, in cases where the 
representative species approach is applied, the Director may approve 
the number of representative species proposed by the facility, based 
upon the specifics of the waterbody from which the facility is 
withdrawing, the percentage volume of water withdrawn relative to the 
freshwater river or stream (as applicable), and other factors.
b. Metric: Absolute Counts vs. Biomass
    EPA requested comment as to whether species impinged or entrained 
may be measured by counting the total number of individual fish and 
shellfish, or by weighing the total wet or dry biomass of the 
organisms. In response to the use of absolute counts of organisms or 
biomass (weight) for determining compliance, commenters offered a 
variety of views. Regarding the use of biomass as a metric, one 
commenter expressed that measuring either biomass or total 
undifferentiated numbers of species would be appropriate for cases 
where restoration was the chosen option, since restoration will never 
result in one-for-one species compensation. Several commenters pointed 
out a disadvantage of counting numbers of organisms: early life stages 
will dominate the numbers and thereby dominate the compliance

[[Page 41619]]

determination, even though most of them would have suffered large 
natural mortality losses even without entrainment. To correct for this, 
a few commenters suggested identifying the organisms and converting 
them to an equivalent unit to ensure that each life stage is 
appropriately weighed. Specifically, one commenter suggested converting 
to equivalent juveniles, when measuring organisms by biomass, to 
correct for the fact that the count will be dominated by later larval 
stages even though the number of these organisms per unit weight will 
be small compared to eggs and larvae. This commenter continued that 
this approach would be useful for forage species, since biomass is an 
appropriate measure of the organisms that serve as a food source for 
commercial and recreational species.
    EPA received many comments regarding the need for flexibility in 
determining the appropriate metric to use to determine attainment of 
performance standards. Several commenters asserted that the rule should 
allow flexibility in the approach and the choice of metric should 
factor in whether one is assessing impingement mortality, entrainment 
or both; species and life stages affected, and compliance option.
    EPA has decided to give the Director the authority to review and 
approve methods of determining compliance proposed by the facility as 
part of the Verification Monitoring Plan. (125.95(b)(7)), Technology 
Installation and Operation Plan (125.95(b)(4)(ii)), and, if applicable, 
the Restoration Plan required at 125.95(b)(5). Thus, the facility will 
propose, and the Director will review and approve, species and life 
stages of concern. The Director may choose to require evaluation of all 
species or of certain indicator species; or the Director may elect to 
verify attainment of performance standards using biomass as a metric. 
EPA believes that as each situation will be somewhat unique, it should 
be left to the facility to propose and the Director approve the 
appropriate unit, biomass or actual counts.
c. Other Means of Determining Attainment of Performance Standards
    Several commenters also suggested that EPA should allow for the use 
of existing data for measuring attainment in lieu of requiring existing 
facilities to collect and develop new data. Commenters also suggested 
that if a facility currently implements the best technology available 
to minimize adverse environmental impact, it should be found in 
compliance even if the newly promulgated performance standards are not 
being met. Other commenters expressed that a facility should be 
considered in compliance even during occurrences of unavoidable 
episodic impingement and entrainment events. These commenters stated 
that in such unusual circumstances, the facility should be provided 
with an exemption from any regulatory actions.
    EPA agrees with commenters that under certain circumstances, 
facilities' historical data may be sufficient to verify that they are 
meeting performance standards, as long as the historical data is 
reflective of current operation of the facility and of current 
biological conditions at the site. For example, under compliance 
alternative 2, a facility may use historical data to demonstrate that 
existing design and construction technologies, operational or 
restoration measures, meet the performance standards. EPA also believes 
that some historical data may be appropriate for determining the 
calculation baseline and for characterizing the nature of impingement 
and entrainment at the site, and therefore has given the Director the 
discretion to determine whether historical data are applicable to 
current conditions (see 125.95(b)(1)(ii), 125.95(b)(2)(i), and 
125.95(b)(3)(iii)). In addition, a facility that proves, using existing 
data, that it has reduced its intake capacity commensurate with closed-
cycle recirculating systems would be considered to be in compliance, 
and therefore would not be required to meet the performance standards 
for either impingement mortality or entrainment.
    After the first permit term, facilities may submit a request for 
reduced information collection activities to their Director. Facilities 
that are able to demonstrate that conditions at their facility and in 
the waterbody from which their facility withdraws surface water are 
substantially unchanged since their previous permit application will 
qualify for reduced requirements (Sec.  125.95(a)(3)). In all these 
cases, historical data are used and required to measure success in 
meeting performance standards. However, facilities required to submit a 
Verification Monitoring Plan must still submit verification monitoring 
data for at least two years following implementation of technologies 
and/or operational measures.
    Other commenters argued that a facility that is implementing permit 
conditions reflecting a historical determination of the best technology 
available should be considered in compliance with today's final rule 
even if the facility is not meeting performance standards. EPA 
disagrees that a historical determination of the best technology 
available is appropriate for complying with the requirements set forth 
by today's rule. Many historical determinations of the best technology 
available are less protective of aquatic organisms and ecosystems than 
the standards set by today's rule, and would undermine the national 
performance standards that EPA has determined reflect the current best 
technology available for minimizing adverse environmental impact. 
Furthermore, biological, chemical and physical conditions at the 
facilities may have changed since the earlier determinations were made, 
and the best technology available determinations may no longer apply. 
Many of the historical best technology available determinations are 
twenty years old or older and may not correspond with current waterbody 
or operating conditions.
    The question whether a facility should be considered in compliance 
even during occurrences of unavoidable episodic impingement and 
entrainment events is left to the Director. At the Director's 
discretion, facilities that are generally in compliance, but that 
experience an unusual peak of impingement mortality and/or entrainment, 
may be considered to still be in compliance on the basis of past good 
performance. Moreover, the inclusion of a compliance determination 
alternative based on a Technology Installation and Operations Plan in 
the final rule also addresses these episodic issues.
d. Monitoring
    One commenter stated that monitoring frequencies should be 
established to address the inherent variability in the rates in 
impingement and entrainment over the seasons of the year. Monthly or 
biweekly monitoring is probably appropriate in many cases. The same 
commenter stated that standard statistical procedures could be followed 
to establish sample sizes needed to establish appropriate levels of 
precision in the estimates (e.g., 95% confidence intervals within 15-
25% of the mean). In contrast, another commenter pointed out that 
weekly sampling would be necessary to determine compliance, as had been 
necessary for the Salem facility. Another commenter suggested that the 
most cost-effective way of conducting studies would be over the periods 
of peak abundance.
    Some commenters stated that facilities should be allowed to cease 
monitoring following achievement of the performance standards. Some

[[Page 41620]]

suggested that facilities meeting performance standards through a 
closed-cycle cooling system should be exempt from monitoring. Another 
commenter disagreed with the two-year monitoring requirement 
altogether.
    EPA has determined that a uniform averaging period would not be 
appropriate; rather, the Director will be best suited to make all such 
determinations by evaluating these and other factors for each facility 
on a case-by-case basis. The Director will be able to make 
determinations regarding averaging periods based upon site-specific 
factors, such as biological assemblage at the site, annual and diel 
fluctuations in concentration and populations present, and the selected 
compliance alternative. EPA disagrees that a facility should cease 
monitoring once performance standards are achieved, as site-specific 
conditions at any facility are bound to change with time, affecting a 
facility's ability to achieve performance standards. EPA agrees that 
facilities meeting performance standards through flow reductions 
commensurate with closed-cycle cooling should be exempt from monitoring 
(see Sec.  125.94(a)(1)(i)). Finally, EPA believes that the two-year 
monitoring requirement is appropriate so that any site-specific 
variability in impingement and entrainment rates can be detected.
e. Timing
    Some States favored flexibility in implementation including 
delaying the effective date for permits to be renewed soon after the 
rule is finalized. Some commenters suggested that the requirements of 
the rule must be timed so that facilities are not forced into a period 
of noncompliance because of the time needed to determine, design, and 
install new intake technology.
    One commenter expressed that implementation schedules are too 
strict. Along the same vein, another commenter suggested that EPA 
should build flexibility into the implementation schedule so that 
facilities are not forced into periods of noncompliance.
    Commenters generally wanted to see flexibility in the averaging 
periods (time increments for determining success in meeting the percent 
reduction or production specified by the performance standards and 
restoration requirements in Sec.  125.94,) and a way to tailor the 
sampling schedules to the needs of the site. These commenters indicated 
that the monitoring should be frequent enough to provide useful 
information, but not so intensive as to make the program unnecessarily 
costly or time-consuming. Furthermore, several recommended that a 
compliance schedule be written into the permits, to allow facilities to 
install and test new equipment. Several commenters agreed that 
different facilities might require different amounts of time, as 
dictated by where they are in the cycle and what their circumstances 
are.
    EPA has provided for time to comply with permitting requirements. A 
facility whose permit expires more than four years after the date of 
publication of this final rule must submit the required information 180 
days before the expiration of their permit. A facility whose permit 
expires within four years of the date of publication of this final rule 
may request that the Permit Director establish a schedule for 
submission of the permit application. Such submission should be as 
expeditiously as practicable, but no later than three and one-half 
years from the date of publication of this final rule. It is expected 
that the time that facilities need to comply with permitting 
requirements will be variable, ranging from one year for those not 
needing to do an impingement mortality and entrainment study to over 
three years for those needing to collect more than one years worth of 
impingement and entrainment data.
    EPA has also provided that facilities may opt to comply with the 
Technology Installation and Operations Plan compliance scheme that 
allows facilities who properly implement the Technology Installation 
and Operations Plan (or Restoration Plan, as applicable) to be 
considered in compliance with the requirements of Sec.  125.94. As 
indicated above, the final rule provides the Director the flexibility 
to establish an appropriate averaging period to meet the particular 
situation present in the waterbody within which the facility is 
located.
3. Entrainment Survival
    EPA invited comment on whether to allow Phase II existing 
facilities to incorporate estimates of entrainment survival when 
determining compliance with the applicable performance standards. 
Commenters responded with numerous comments regarding survival with 
respect to the performance standards as well as comments regarding 
EPA's assumption of zero percent entrainment survival (100 percent 
mortality) in the benefits assessment for today's rule.
    Some commenters opposing the zero percent survival assumption 
argued that in the event a facility can demonstrate entrainment 
survival, it should be awarded credits towards meeting performance 
standards. EPA disagrees. Today's final rule sets performance standards 
for reducing entrainment rather than reducing entrainment mortality. 
EPA chose this approach because EPA does not have sufficient data to 
establish performance standards based on entrainment survival for the 
technologies used as the basis for today's rule. If EPA had 
incorporated entrainment survival into any of its conclusions regarding 
the appropriate performance standards, then the actual performance 
standard would most likely have been higher.
    Many commenters argued that in many cases organisms survive 
entrainment and the zero percent survival assumption was too 
conservative. Some commenters suggested that EPA was biased in its 
approach to entrainment survival. For example, one commenter stated 
that EPA was biased as a result of relying heavily on old entrainment 
survival literature.
    Based on its review of all entrainment survival studies available 
to the Agency, EPA believes that its assumption of zero percent 
survival in the benefits assessment is justified. The primary issue 
with regard to the studies EPA reviewed is whether the results can 
support a defensible estimate of survival substantially different from 
the value zero percent survival assumed by EPA. The review of the 
studies has shown that while organisms are alive in some of the 
discharge samples, the proportion of the organisms that are alive in 
the samples is highly variable and unpredictable on a national basis. 
In addition, some studies contain various sources of potential bias 
that may cause the estimated survival rates to be higher than the 
actual survival rates. For these reasons, EPA believes the current 
state of knowledge does not support reliable predictions of entrainment 
survival that would provide a defensible estimate for entrainment 
survival above zero at a national level. However, today's final rule 
does allow facilities to use the results of a well-constructed, sites-
specific entrainment survival study, approved by the Director, in their 
benefits assessments when seeking site-specific entrainment 
requirements. The permitting authority must review and accept the study 
before the results may be incorporated into the benefits assessments. 
In cases where there is uncertainty in the survival rates, permitting 
authorities may want to specify that benefits be presented as a range 
that reflects this uncertainty.

[[Page 41621]]

4. Comprehensive Demonstration Study (CDS)
a. Requirements and Burden
    The majority of commenters expressed two concerns regarding the 
CDS: (1) it was too burdensome and costly, and the volume of 
information required was too overwhelming, and (2) several components 
required clarification. These commenters generally suggested that the 
costs of such a study were underestimated, and many indicated that the 
cost estimates for completing the CDS contained misleading or incorrect 
information. Commenters indicated that the information required for 
completing the CDS was similar to the data that would be needed for 
implementing a purely site-specific approach and was therefore overly 
burdensome. Commenters suggested that EPA require a more simplified 
demonstration study or waive the requirement for facilities that select 
one of the approved technologies. Some commenters suggested, in 
general, that costs could be greatly reduced by streamlining this 
process, for example, by exempting facilities from certain components 
based on (1) facilities that have proven that they are not harming the 
aquatic community, and (2) facilities for which there exists relevant 
historical data.
    Several States anticipated that the majority of their facilities 
were likely to choose the site-specific compliance alternative, and 
indicated that a rule that requires cost/benefit analyses for many 
decisions would be difficult to administer and require significant 
resources to implement. They claimed that the site-specific performance 
standards compliance option would impose a substantial review burden 
and would require specialized expertise. Some States questioned whether 
existing permitting staff resources over the first 5 years will be 
sufficient to review material and develop permit requirements.
    Many commenters suggested that EPA could lower costs by 
streamlining the CDS, exempting facilities that are not causing adverse 
environmental impact or have historical data, and waiving the 
monitoring components for facilities that have installed approved 
technologies.
    EPA believes that many efficiencies have been added to the rule 
since the proposal and the NODA to address concerns that the CDS is too 
burdensome and costly. First, EPA has provided five compliance 
alternatives to choose from, one of which allows a facility to install 
an approved design and construction technology with minimal CDS 
requirements. In addition, facilities with design intake flow 
commensurate with closed-cycle recirculating systems are exempt 
entirely from the CDS; facilities may only have to submit partial CDS 
information if they have reduced their design intake velocity to less 
than or equal to 0.5 feet per second and are only required to meet 
requirements as they relate to reductions in entrainment. In addition, 
requiring an early submission of the Proposal for Information 
Collection allows the Director to potentially minimize the amount of 
information required by the facility. Also, by allowing the use of 
historical data, EPA has minimized costs for many facilities. In the 
cases where new studies are required, EPA has given the permittee and 
the Director discretion to set conditions for the studies which will 
not be overly burdensome. Facilities may also reduce costs incurred 
through the information collection process in subsequent permit terms 
by submitting, one year prior to expiration of the existing permit, a 
request for reduced permit application information based on conditions 
of their cooling water intake structure and waterbody remaining 
substantially unchanged since the previous permit issuance.
    One commenter expressed concern that historical data should not be 
allowed in the development of the CDS, as it may not accurately reflect 
current conditions. EPA believes that some historical data may be 
appropriate for determining the calculation baseline and for 
characterizing the nature of impingement and entrainment at the site, 
and therefore has given the Director the discretion to determine 
whether historical data are applicable to current conditions. EPA 
expects to provide guidance to Directors to help them make 
determinations about historical data submitted by facilities. 
Historical data will not be used to determine attainment of performance 
standards; this will be verified through a monitoring program approved 
by the Director.
b. Timing of Submitting Information
    Commenters submitted a variety of opinions about timing. Generally, 
most favored limiting the submittal of CDS components to a frequency 
equal to or greater than once every five years (one permitting cycle) 
to reduce burden. Another commenter argued that there is no reason to 
mandate timing, and that approval of the Director should not be 
necessary. Other commenters suggested that a time frame is necessary, 
and that the information should be submitted with the renewal 
application for a NPDES permit. Numerous commenters asserted that 
consultation activities should occur prior to development of the 
Comprehensive Demonstration Study; that schedules and requirements 
should be specified in the permit for various data collection, 
analysis, and application submission activities; implementation 
schedules are too strict; and monitoring requirements need 
clarification. Yet another commenter suggested to ``start the clock'' 
with the issuance of the renewed permit. Commenters also indicated that 
anywhere from one year to several years might be necessary to verify 
success in meeting the performance standards. Several commenters 
suggested that given the nature of cooling water intake impacts and the 
proposed requirements, section 316(b) permit and BTA determinations 
should not be made every five years. Instead, they suggested that one-
time determinations should suffice, or that facilities should be 
allowed to rely on previous section 316(b) demonstrations if conditions 
remain essentially unchanged. There was also some general confusion as 
to when the rule would actually become effective.
    In response to the comment that EPA should not request submittal of 
CDS components more frequently than every five years or more, EPA has 
included a provision whereby a facility may be granted reduced CDS 
submittal requirements if it can prove that conditions at the facility 
and in the waterbody have not substantially changed. Facilities will be 
required to review whether conditions, such as biological, chemical or 
physical conditions, have substantially changed at each permit renewal 
cycle. If conditions have changed, facilities will be required to 
submit all of the relevant CDS components (those that would be affected 
by the changed conditions when they submit the application for permit 
renewal.
    One commenter stated that the CDS should be a one-time submittal. 
EPA disagrees that all components of the CDS should only be researched 
and submitted a single time for the lifetime of the facility, 
regardless of potential changes in the plant and/or waterbody, because 
the natural and anthropogenic changes that occur in waterbodies over 
time may affect a facility's ability to meet performance standards 
using the current design and construction technologies, operational 
measures, and/or restoration measures in place.
    In response to comments that timing was not clear in previous 
versions of the rule, EPA agrees, and has clarified timing issues in 
today's final rule. A

[[Page 41622]]

facility whose permit expires more than four years after the date of 
publication of this final rule must submit the required information 180 
days before the expiration of their permit. A facility whose permit 
expires within four years of the date of publication of this final rule 
may request that the Permit Director establish a schedule for 
submission of the permit application, but that such submission should 
be as expeditiously as practicable, but no later than three and one-
half years from the date of publication of this final rule. It is 
expected that the time that facilities need to comply with permitting 
requirements will be variable, ranging from one year for those not 
needing to do an impingement mortality and entrainment study to over 
three years for those needing to collect more than one years worth of 
impingement and entrainment data.
    Some commenters felt that decisions about the timing of the CDS 
submittal should be left to the Director. EPA agrees and has provided 
only that the proposal for information collection should be submitted 
prior to the start of information collection activities, but that the 
facility may initiate information collection prior to receiving comment 
from the Permit Director. All other components of the Comprehensive 
Demonstration Study must be submitted 180 days prior to permit 
expiration except as noted above for the first, permit term following 
promulgation of the rule.
5. State Programs
    Many States requested that existing State section 316(b) programs 
be allowed to be used to meet the requirements of Phase II. One 
commenter asserted that the Phase II rule should not overturn past 
State section 316(b) decisions at existing facilities that were made on 
a site-specific basis and that examined the impacts of the cooling 
water intake structure in relation to the specific biological 
community. Several commenters stated that EPA did not sufficiently 
recognize the work already done by the States in implementing section 
316(b). Several commenters do not believe that a State should have to 
demonstrate that its program is ``functionally equivalent'' to today's 
rule (i.e., that its alternative regulatory requirements achieve 
environmental performance within a watershed that is comparable to the 
reductions of impingement mortality and entrainment that would 
otherwise be achieved under Sec.  125.94).
    In response to comments about existing State section 316(b) 
programs, EPA believes that Sec.  125.90(c) in today's rule, by 
allowing alternative State programs, acknowledges the work already done 
by States. In response to the comment that a State should not have to 
prove that its program achieves environmental performance comparable to 
those that would be achieved under Sec.  125.94, EPA disagrees. While 
EPA is giving significant flexibility to permitting agencies at the 
State level to determine how and what each facility must protect and 
monitor, it believes it is important to set uniform national 
performance standards.

F. Restoration

    In the proposed rule EPA requested comments on the use of 
restoration measures by facilities within scope of the rulemaking (67 
FR 17146). EPA received diverse comments. Many commenters supported a 
role for restoration measures. Several commenters stated that allowing 
restoration provides additional flexibility to those who must comply 
with the section 316(b) requirements, and may provide a more cost-
effective means of minimizing adverse environmental impact than 
operational measures or design and construction technologies. Other 
commenters stated that restoration is a well-accepted concept that 
should have a voluntary role in section 316(b) determinations and 
constitutes an appropriate means for reducing the potential for causing 
adverse environmental impact. Several commenters felt that restoration 
could provide significant benefits in addition to compensating for 
impingement and entrainment losses. A number of commenters requested 
flexibility in the implementation of restoration projects. Some 
commenters stated that restoration should not be limited to 
supplementing technology or operational measures, but should instead be 
allowed as a complete substitute for such measures. However, other 
commenters stated that restoration measures should only be used once 
every effort has been made to use technology to avoid impacts.
    Commenters further stated that restoration should not be mandatory 
and that EPA lacks authority under section 316(b) to require it, but 
also asserted that it should have an important role in section 316(b) 
permitting decisions. Commenters also stated that restoration should 
not be considered the best technology available for minimizing adverse 
environmental impact because it is not a technology that addresses the 
location, design, construction, or capacity of a cooling water intake 
structure. However, one commenter argued that past restoration measures 
should be considered during a regulator's determination of whether or 
not adverse environmental impact is occurring from a cooling water 
intake structure.
    Other commenters felt restoration should have a limited role or no 
role in the context of section 316(b). One commenter wrote that 
restoration measures, in the context of section 316(b), are generally 
unworkable and that the only measurable restoration method would be 
offsetting, in which an applicant stops use of an older intake facility 
that does more harm than the proposed one. One commenter stated that 
restoration methods must reproduce the ecological value of lost 
organisms and that they have not seen restoration projects adequately 
successful in this manner in their region of the country. Many 
commenters pointed out uncertainties associated with compensating for 
those organisms impacted by a cooling water intake structure through 
restoration.
    Some commenters suggested that, if restoration is allowed, there 
should be consultation with other State and Federal resource agencies 
to avoid inconsistent approaches and to provide useful information on 
the affected waterbody.
    Several commenters remarked on EPA's proposal to include 
requirements for uncertainty analysis, adaptive management plans, and 
peer review in the final rule. Some commenters were in favor of the 
requirements and felt that they would enhance restoration measure 
certainty and performance. Some commenters were concerned that the 
requirements would be overly burdensome or would overly restrict the 
restoration measure options available to permit applicants.
    EPA has retained restoration in the final rule and believes that 
the restoration requirements strike an appropriate balance between the 
need for flexibility and the need to ensure that restoration measures 
achieve ecological results that are comparable to other technologies on 
which the performance standards are based. Facilities that propose to 
use restoration measures, in whole or in part, must demonstrate to the 
Director that they have evaluated the use of design and construction 
technologies and/or operational measures and found them to be less 
feasible, less cost-effective, or less environmentally desirable than 
meeting the applicable performance standards in whole or in part 
through the use of restoration measures. The requirement to look at 
design and construction technologies and/or

[[Page 41623]]

operational measures in order to ensure that facilities give due 
consideration to the technologies on which the performance standards 
are based.
    Facilities must also demonstrate that the use of restoration 
measures achieves performance levels that are substantially similar to 
those that would be achieved under the applicable performance 
standards. To address concerns regarding the uncertainty of restoration 
measures, EPA has included, among other things, requirements for 
uncertainty analysis, adaptive management plans, monitoring, and peer 
review, if requested by the Director. Finally, EPA does not believe the 
requirements for restoration measures are overly burdensome or 
prescriptive as there is a need to ensure that these types of measures 
achieve the anticipated environmental benefit. Moreover, under the 
rule, facilities are provided at least three and one-half years to 
submit their restoration plan and complete the required studies.

G. Costs

1. Facility-Level Costs
    Generally, commenters were split regarding the national costs of 
the rule. Industry commenters stated that the cost analysis presented 
in the proposal underestimated the compliance costs in several facets 
of the analysis, including capital costs of the technology, the site-
specific contingencies associated with retrofitting, and facility down 
time. Several commenters stated that EPA underestimated the costs for 
the monitoring requirements for both the characterization study in the 
permit application and for verification monitoring. Other commenters 
generally stated the opposite, arguing that EPA overestimated the 
compliance costs, especially for installing cooling towers. Some 
commenters stated that costs should not be a consideration in section 
316(b) determinations.
    The Agency significantly revised the approach to developing costs 
for the NODA. Those revisions incorporated some of the comments on the 
costing methodology for technologies that reduce impingement and 
entrainment. EPA's approach to estimating the costs of the requirements 
of the final rule reflect the NODA comments on the revised methodology, 
and additional analyses. EPA, however, did not revise its estimates for 
cooling towers subsequent to the NODA because it decided not to further 
pursue this regulatory option for the reasons outlined more 
specifically in Section VII. EPA believes that our costing of cooling 
tower technology is appropriate as it is based on vendor and 
engineering firm experience in developing costs for Phase II 
facilities.
2. Market-Level Impacts
    Numerous industry commenters stated that EPA significantly 
underestimated the impacts to generators, consumers, reliability, and 
energy supply. EPA disagrees with these commenters. EPA performed an 
analysis of facility- and market-level impacts (including impacts to 
generators, consumers, reliability, and energy supply) using the 
Integrated Planning Model (IPM[reg]), which has been widely used in air 
quality regulations and in other public policy arenas affecting the 
electric power generation industry.
    One commenter stated that the IPM analysis does not account for the 
economic impacts of other regulatory programs. EPA disagrees with this 
assertion. The IPM base case accounts for costs associated with current 
federal and state air quality requirements, including future 
implementation of SO2 and NOX requirements of 
Title IV of the Clean Air Act and the NOX SIP call as 
implemented through a cap and trade program. Because of its relative 
newness, it does not account for costs associated with the Phase I 
facility regulations.
    One commenter stated that EPA justified the rule by using a cost-
to-revenue comparison and that this comparison neither measures 
profitability nor represents the most efficient economic solution for 
each facility. As discussed in Section VII. above, the economic 
practicability of the Phase II regulation is based on the electricity 
market model analyses using the IPM, not the cost-to-revenue ratio. The 
cost-to-revenue ratio is only one of several additional measures EPA 
used to assess the magnitude of compliance costs.
    Some commenters stated that EPA did not properly take account of 
differences between utilities, which own and operate rate-based 
facilities, and nonutilities, which own and operate competitive 
generating facilities. EPA disagrees with this comment. EPA believes 
that in a deregulated market, the distinction between utilities and 
nonutilities is no longer relevant. While such a distinction may have 
been important in the past, when only a few unregulated nonutilities 
competed with regulated utilities, this is no longer the case. The 
share of Phase II facilities that are owned by unregulated entities has 
increased from 2 percent in 1997 to 31 percent in 2001. By the time the 
final rule will take effect, even more Phase II facilities that 
currently operate under a rate-based system will be operating in a 
competitive market. Furthermore, EPA does not believe that nonutilities 
will be differentially impacted compared to utilities, even in the case 
that deregulation might not have taken effect in all markets by the 
time this rule is implemented. Competitive pressures, even in regulated 
environments, will reduce the ability of utilities to pass on costs to 
their consumers.
    Some commenters stated that small or publicly owned facilities may 
be significantly affected. EPA disagrees with this statement. EPA's 
SBREFA analysis showed that this rule will not lead to a significant 
economic impact on a substantial number of small entities (See Section 
XIII.C below). While municipally owned facilities bear a relatively 
larger compliance cost per MW of generating capacity than do facilities 
owned by other types of entities, EPA's analyses show that these costs 
are not expected to lead to significant economic impacts for these 
facilities.
    Some commenters stated that even a requirement to convert all 
facilities to closed-cycle cooling would not significantly affect 
energy supply and that the costs to facilities and consumers is small 
and in some cases, overstated by EPA's analysis. EPA disagrees with 
this statement. EPA considered several options that would require some 
or all facilities to install closed-cycle recirculating systems and 
rejected them on the basis of economic practicability and technological 
feasibility. See Section VII.B for more detail on why EPA rejected 
closed-cycle recirculating systems.

H. Benefits

    In its analysis for section 316(b) Phase II Proposal, EPA relied on 
nine case studies to estimate the potential economic benefits of 
reduced impingement and entrainment. EPA extrapolated facility-specific 
estimates to other facilities located on the same waterbody type and 
summed the results for all waterbody types to obtain national 
estimates. During the comment period on the proposed rule EPA received 
numerous comments on the valuation approaches applied to evaluate the 
proposed rule, including commercial and recreational fishing benefits, 
non-use benefits, benefits to threatened and endangered species (T&E), 
as well as on the methods used to extrapolate case study results to the 
national level. EPA tried to address concerns raised by commenters on 
the proposal in the revised methodology presented in the NODA and the 
final rule analysis.

[[Page 41624]]

1. Benefits Analysis Design
    A number of commenters expressed concern about EPA's reliance on a 
few case studies and the extrapolation method used for estimating 
benefits at the national level for the proposed rule analysis. The 
commenters noted that even within the same waterbody type, there are 
important ecological and socioeconomic differences among different 
regions of the country. To address this concern, EPA revised the design 
of its analysis to examine cooling water intake structure impacts at 
the regional-scale. The estimated benefits were then aggregated across 
all regions to yield the national benefits estimate. These analytical 
design changes were presented in the NODA. No major comments were 
received on EPA's regional benefit approach as described in the NODA.
2. Commercial Fishing Benefits
    During the comment period on the proposed rule EPA received a 
number of comments on the methods used to estimate producer surplus and 
consumer surplus in the commercial fishing sector. Commenters felt that 
the methods overestimated benefits. The new methods used by EPA assume 
that producer surplus is 0% to 40% of gross revenues in the commercial 
fishing sector. EPA also now assumes that the Phase II rule will not 
create increases in commercial harvest large enough to impact prices. 
Thus, no consumer surplus impact is estimated. Commenters on the NODA 
noted these changes and agreed with them.
3. Recreational Fishing Benefits
    A number of comments were received on the recreational fishing 
benefits estimates EPA included in the proposal, which primarily relied 
on a benefits transfer approach. Benefit transfer involves adapting 
research conducted for another purpose in the available literature to 
address the policy questions in hand. For more detail on the valuation 
methods used in the final rule analysis, see Chapter A9 of the Regional 
Analysis document (DCN 6-0003). For three of the nine case studies, 
this analysis was supplemented by original revealed preference studies. 
Revealed preference methods use observed behavior to infer users' value 
for environmental goods and services. Examples of revealed preference 
methods include travel cost, hedonic pricing, and random utility models 
(RUM). For more detail on the revealed preference methods used in the 
final rule analysis, see Chapters A9 and A11 of the Regional Analysis 
document (DCN 6-0003). Although most commenters agreed that properly 
executed benefits transfer is an appropriate method for valuing 
nonmarket goods, they pointed out that original revealed preference 
studies that provide site-specific recreational fishing benefit 
estimates provide a superior alternative to benefits transfer. In 
response to these comments, EPA developed original or used available 
region-specific recreational angler behavior models, which provide 
site-specific estimates of willingness-to-pay for improvements in 
recreational fishing opportunities, to estimate recreational fishing 
benefits from reduced impingement and entrainment for seven of the 
eight study regions. Chapter A11 of the Regional Analysis document 
provides detailed discussion of the methodology used in EPA's RUM 
analysis (DCN 6-0003). Due to data limitations, EPA used a benefit 
transfer approach to value recreation fishing benefits from reduced 
impingement and entrainment in the Inland region.
4. Non-Use Benefits
    Numerous comments were received on EPA's proposed non-use benefit 
estimates. Most commenters agreed that non-use values are difficult to 
estimate and that EPA's estimates of non-use benefits using the 50% 
rule was inappropriate because it relies on outdated studies. 
Commenters, however, disagreed as to whether EPA had vastly overstated 
or underestimated non-use benefits in the proposed Phase II rule 
analysis.
    Some commenters stated that EPA's approach to estimating non-use 
benefits of the proposed rule significantly overestimates total 
benefits and that ecological benefits of the section 316(b) regulation 
are negligible. Other commenters asserted that EPA's benefits estimates 
significantly undervalued the total ecological benefits (including use 
and non-use) of preventing fish kills. These commenters indicated that 
it would be impossible to claim that the value of the unharvested 
commercial and recreational and forage species lost to impingement and 
entrainment was equal to zero. Reasons some commenters gave for the 
underestimation of total benefits included the following: total losses 
were underestimated by using outdated monitoring data for periods when 
population levels (and therefore impingement and entrainment) were much 
lower than the present; cumulative impacts were not sufficiently 
considered; recreational and commercial values were underestimated; 
commercial invertebrate species were ignored; ecological value of 
forage species was not considered; non-use benefits were 
underestimated; and secondary economic impacts were not included. 
Overall these commenters argued that a net benefit underestimation 
could be corrected by (1) assuming that non-use values were two times 
the estimated value of recreation, commercial and forage values; and 
(2) assuming that unharvested fish had a value greater than zero.
    In response to public comments regarding the analysis of non-use 
values in the proposed rule, EPA considered the results of several 
different approaches to quantifying non-use values. The Agency points 
out that none of the available methods for estimating either use or 
non-use values of ecological resources is perfectly accurate; all have 
shortcomings.
    EPA has determined that none of the methods it considered for 
assessing non-use benefits provided results that were appropriate to 
include in this final rule, and has thus decided to rely on a 
qualitative discussion of non-use benefits. The uncertainties and 
methodological issues raised in the approaches considered could not be 
resolved in time for inclusion in the rule. EPA continues to evaluate 
various approaches for evaluating non-use benefits of CWA rules.
5. Habitat Replacement Cost (HRC)
    Some commenters argued that the HRC methods are not legitimate 
valuation methods because they concern costs, not benefits. However, 
other commenters argued that although HRC analysis is not a benefit's 
analysis in the strict economic sense it can provide a practical 
approach to capturing the full range of ecosystem services and, thus, 
is appropriate for evaluating the benefits of this rule. These 
commenters further pointed out that ``restoration cost is used as a 
measure of damages under CERCLA for Superfund sites, under the National 
Marine Sanctuaries Act, and under the oil spill provisions of the Clean 
Water Act. Use of restoration costs was explicitly upheld in the 
landmark Ohio vs. Interior court decision of 1989.''
    EPA has removed the disputed results of the HRC analyses from its 
benefits estimates for the final rule. For the NODA, EPA revised the 
HRC analysis presented in the proposed rule (see 67 FR 17191). Instead 
of the costs of habitat replacement, EPA used estimated willingness-to-
pay values for the resource improvements that would be achieved by the 
habitat replacement/restoration equivalents.

[[Page 41625]]

    During the comment period on the NODA, EPA received a number of 
comments on the revised habitat-based valuation method. Specifically, 
several commenters questioned the appropriateness of using willingness 
to pay values for habitat restoration as a ``proxy'' for either the 
total value or the non-use value of the fishery resources that would be 
preserved due to reduced impingement and entrainment. EPA explored this 
approach to estimating non-use values for three case study regions: the 
North Atlantic, Mid-Atlantic, and Great Lakes Regions. However, due to 
limitations and uncertainties regarding the application of this 
methodology, EPA elected not to include benefits based on this approach 
in the costs and benefits analysis of the final section 316(b) rule.
6. Benefits to Threatened and Endangered Species.
    Similarly to the HRC approach, commenters strongly disagreed about 
the appropriateness of EPA using the societal revealed preference (SRP) 
method to value benefits from reducing impingement and entrainment of 
threatened and endangered species because these methods concern costs 
not benefits. The SRP method uses (1) evidence of actions taken to 
benefit a resource that were developed, approved, and implemented 
voluntarily by government and quasi-government agencies and (2) data on 
anticipated and actual expenditures required to complete the actions. 
EPA has removed the disputed results of the societal revealed 
preference analyses from its benefits estimates for the final rule 
because the uncertainties and methodological issues raised in the 
approaches considered could not be resolved in time for inclusion in 
the rule.
    Some commenters argued that benefits transfer is the second best 
approach to estimating benefits from improved protection of threatened 
and endangered species if conducting an original stated preference 
study is not feasible. Specifically, the commenters recommended that 
EPA use benefits transfer for valuing improved protection of threatened 
and endangered species instead of the societal revealed preference 
method. In response to these comments, EPA has explored a benefits 
transfer approach to valuing improved protection of threatened and 
endangered species due to the final section 316(b) regulation. For 
detail, see Chapters A13 and B6 of the Regional Analysis document (DCN 
6-0003). EPA, however, notes that benefits based on this method were 
not included in the benefit cost analysis of the final section 316(b) 
rule due to the uncertainties and limitations discussed in Section A13-
6.1 of the Regional Study document (see DCN 6-0003).
7. Timing of Benefits
    During the comment period on the proposed rule, EPA received a 
number of comments on the time at which benefits of the rule accrue to 
society. The commenters assert that the estimated commercial and 
recreational fishing benefits are overstated because timing of benefits 
was not taken into account. Specifically, the commenters argue that 
benefits could not be fully realized until installation of the cooling 
technology is completed and enough years pass after that first year of 
reduced impingement and entrainment mortality such that every fish 
avoiding impingement and entrainment in that year can be harvested by 
commercial and recreational fishermen. In response to public comments 
on the proposed rule analysis, EPA revised recreational and commercial 
fishing benefits analysis to account for a one-year construction period 
required to install CWIS technology to reduce impingement and 
entrainment, and a time lag between impingement and entrainment 
cessation and the time when recreational and commercial fish species 
will be large enough to be harvested. In accounting for a delay in 
benefits, EPA used both a three percent and a seven percent discount 
rate as recommended by OMB requirements.

I. EPA Legal Authority

1. Authority To Set a National Standard for Cooling Water Intake 
Structures
    Some commenters challenged EPA's authority to set a national 
standard for cooling water intake structures, arguing that CWA section 
316(b) requires EPA to provide a site-specific assessment of ``best 
technology available to minimize adverse environmental impact.'' These 
commenters maintain that the language and legislative history of CWA 
section 316(b), the objectives of the CWA, and prior EPA practice of 
site-specific application of CWA section 316(b) preclude EPA from 
setting a national standard under this rule.
    EPA is authorized under section 501(a) of the Clean Water Act ``to 
prescribe such regulations as are necessary to carry out [its] 
functions'' under the Clean Water Act. Moreover, EPA interprets CWA 
section 316(b) to authorize national requirements for cooling water 
intake structures. CWA section 316(b) applies to sources subject to CWA 
sections 301 and 306, which authorize EPA to promulgate national 
categorical effluent limitations guidelines and standards for direct 
dischargers of pollutants. The reference in CWA section 316(b) to these 
sections indicates that Congress expected that CWA section 316(b) 
requirements, like those of CWA sections 301 and 306, could be applied 
as a national, categorical standard. Cronin v. Browner, 898 F. Supp. 
1052, 1060 (1995) (``EPA was also free to choose, as it did, to 
implement section 316(b) by issuing one overarching regulation that 
would apply to all categories of point source subject to sections 301 
and 306 that utilize cooling water intake structures.''); see also 
Virginia Electric Power Co. v. Costle, 566 F. 2d 446 (1977).
2. Authority To Consider Cost in Establishing Performance Standards and 
Compliance Options
    Some commenters objected to EPA's consideration of costs in the 
determination of BTA. These commenters note that CWA section 316(b) 
does not expressly mention compliance costs, in contrast to other 
technology-based provisions of the CWA, which explicitly direct EPA to 
consider such costs. If Congress had intended that EPA consider costs 
under section 316(b), they argue, it would have expressly directed the 
EPA to do so.
    EPA believes that it legitimately considered costs in establishing 
``best technology available'' under CWA section 316(b). Although CWA 
section 316(b) does not define the term ``available,'' it expressly 
refers to CWA sections 301 and 306--both of which require EPA to 
consider costs in determining the ``availability'' of a technology. 
Specifically, CWA section 301(b)(1)(A) requires certain existing 
facilities to meet effluent limitations based on ``best practicable 
control technology currently available,'' which requires 
``consideration of the total cost of application of technology in 
relation to the effluent reduction benefits to be achieved from such 
application.'' 33 U.S.C. 1314(b)(1)(B). Similarly, CWA section 
301(b)(2)(A) requires application of the ``best available technology 
economically achievable,'' which in turn requires consideration of 
``the cost of achieving such effluent reduction.'' 33 U.S.C. 
1314(b)(2)(B). Finally, CWA section 306(b)(1)(B), which governs the 
effluent discharge standards for new sources, expressly states that in 
establishing the ``best available demonstrated control technology'' the 
Administrator shall take into consideration ``the cost of achieving 
such effluent reduction'' 33 U.S.C. 1316(b)(1)(B). Although these 
standards

[[Page 41626]]

are somewhat different, each mandates the consideration of costs in 
establishing the technology-based standard. Because CWA sections 301 
and 306 are expressly cross-referenced in CWA section 316(b), EPA 
believes that it reasonably interpreted CWA section 316(b) as 
authorizing consideration of the same factors considered under CWA 
sections 301 and 306, including cost. EPA's interpretation of section 
316(b) as authorizing a consideration of costs was explicitly upheld in 
litigation on the Phase I new facilities rule. Riverkeeper v. EPA, slip 
op. at 28 (2nd Cir., Feb. 3, 2004).
    EPA's interpretation is supported by the legislative history of CWA 
section 316(b): `` `best technology available' should be interpreted as 
best technology available at an economically practicable cost.'' See 
118 Cong. Rec. 33,762 (1972), reprinted in 1 Legislative History of the 
Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. at 
264 (Comm. Print 1973) (Statement of Representative Don H. Clausen). 
EPA's interpretation of CWA section 316(b) is also consistent with 
judicial interpretations of the section. See, e.g., Seacoast Anti-
Pollution League v. Costle, 597 F.2d 306, 311 (1st Cir. 1979) (``The 
legislative history clearly makes cost an acceptable consideration in 
determining whether the intake design `reflect[s] the best technology 
available' ''); Hudson Riverkeeper Fund, Inc. v. Orange & Rockland 
Util., Inc. 835 F. Supp. 160, 165-66 (S.D.N.Y. 1993).
3. Authority To Allow Site-Specific Determination of BTA To Minimize 
AEI Based on a Cost-Cost Comparison
    The final rule allows a facility to pursue a site-specific 
determination of ``best technology available to minimize adverse 
environmental impact'' where the facility can demonstrate that its 
costs of compliance under the compliance alternatives in 
Sec. 125.94(a)(2) through (4) would be significantly greater than the 
costs considered by the Administrator for a like facility in 
establishing the performance standard.
    Some commenters argue that CWA section 316(b) does not authorize 
EPA to provide for a site-specific assessment of ``best technology 
available.'' These commenters argued that EPA was required under CWA 
section 316(b) to set a national standard for ``best technology 
available'' (BTA), at least as stringent as the national standard for 
``best available technology'' (BAT) under CWA section 301. These 
commenters asserted that the similar wording of the BTA and BAT 
requirements, and the fact that CWA section 316(b) explicitly 
references CWA section 301 as the basis for its application, indicates 
legislative intent to equate BTA with BAT and thus requires a 
national--not site-specific--standard.
    EPA disagrees. The CWA section 316(b) authorizes a site-specific 
determination of BTA. Although, the CWA section 316(b) authorizes EPA 
to promulgate national categorical requirements, EPA also notes that 
the variety of factors to be considered in determining these 
requirements--such as location and design--indicate that site-specific 
conditions can be highly relevant to the determination of BTA to 
minimize adverse environmental impact. In addition to specifying ``best 
technology available'' in relation to a national categorical 
performance standard, today's rule also authorizes a site-specific 
determination of BTA when conditions at the site lead to a more costly 
array of controls than EPA had expected would be necessary to achieve 
the applicable performance standards.
    This site-specific compliance option is similar to the 
``fundamentally different factors'' provision in CWA section 301(n), 
which authorizes alternative requirements for sources subject to 
national technology-based standards for effluent discharges, if the 
facility can establish that it is fundamentally different with respect 
to factors considered by EPA in promulgating the national standard. The 
fundamentally different factors provision was added to the CWA in 1987, 
but prior to the amendment, both the Second Circuit and the Supreme 
Court upheld EPA's rules containing provisions for alternative 
requirements as reasonable interpretations of the statute. NRDC v. EPA, 
537 F.2d 642, 647 (2d Cir. 1976) (``the establishment of the variance 
clause is a valid exercise of the EPA's rulemaking authority pursuant 
to section 501(a) which authorizes the Administrator to promulgate 
regulations which are necessary and proper to implement the Act''); EPA 
v. National Crushed Stone Ass'n, 449 U.S. 64 (1980) (approving EPA's 
alternative requirements provision in a standard adopted pursuant to 
CWA section 301(b)(1), even though the statute did not expressly permit 
a variance.) EPA's alternative site-specific compliance option in this 
rule is similarly a reasonable interpretation of section 316(b) and a 
valid exercise of its rulemaking authority under CWA section 501.
    Based on this interpretation, EPA and State permitting authorities 
have been implementing CWA section 316(b) on a case by case basis for 
over 25 years. Such a case-by-case determination of BTA has been 
recognized by courts as being consistent with the statute. See Hudson 
Riverkeeper Fund v. Orange and Rockland Util, 835 F. Supp. 160, 165 
(S.D.N.Y. 1993) (``This leaves to the permit writer an opportunity to 
impose conditions on a case by case basis, consistent with the 
statute'').
    Some commenters specifically challenged EPA's authority to consider 
costs in its site-specific assessment of best technology available. 
However, as discussed earlier, EPA reasonably interprets CWA section 
316(b) to authorize it to consider costs of compliance in determining 
best technology ``available.'' Therefore, where EPA fails to consider a 
facility's unusual or disproportionate costs in setting the national 
requirements for ``best technology available,'' it reasonably 
authorizes permit authorities to set site-specific alternative limits 
to account for these costs. See Riverkeeper v. EPA, slip op. at 25 (2nd 
Cir. Feb. 3, 2004) (upholding site-specific alternative limits under 
the Phase I rule for new facilities where a particular facility faces 
disproportionate compliance costs.)
    In addition, EPA notes that--contrary to some commenters' 
assertions--the rule does not in fact authorize permitting authorities 
to consider a facility's ``ability to pay'' in its site-specific 
assessment of BTA. It only allows consideration of whether the facility 
has unusual or disproportionate compliance costs relative to those 
considered in establishing the performance standards--not whether the 
facility has the financial resources to pay for the required 
technology. Moreover, in setting the alternative BTA requirements, the 
permit authorities may depart from the rule's national technology-based 
standards only insofar as necessary to account for the unusual 
circumstances not considered by the Agency during its rulemaking.
4. Authority To Allow Site-Specific Assessment of BTA Where Facility's 
Costs of Compliance Are Significantly Greater Than Benefits of 
Compliance
    Some commenters objected to the second site specific regulatory 
option--authorizing a site-specific determination of best technology 
available where the facility can demonstrate that its costs of 
compliance under Sec. 125.94(a)(2) through (4) would be significantly 
greater than the benefits of complying with the applicable performance 
requirements at the facility. These commenters argue that a cost-
benefit decision making criterion is not authorized under the CWA. Many 
of these commenters assert

[[Page 41627]]

that while it may be reasonable for EPA to exclude technologies if 
their costs are ``wholly disproportionate'' to the benefits to be 
achieved, EPA lacks the statutory authority to conduct a formal cost/
benefit analysis to determine the best technology available on a site-
specific basis.
    EPA believes that the Clean Water Act authorizes a site-specific 
determination of the best technology available to minimize adverse 
environmental impact where the costs of compliance with the rule's 
performance standards are significantly greater than its benefits. This 
authority stems from the statutory language of CWA section 316(b). As 
discussed in Section III above, Section 316(b) requires that cooling 
water intake structures reflect the best technology available for 
minimizing adverse environmental impact. The object of the ``best 
technology available'' is explicitly articulated by reference to the 
receiving water: to minimize adverse environmental impact in the waters 
from which cooling water is withdrawn. In contrast, under section 301 
the goal of BAT is explicitly articulated by reference to a different 
purpose, to make reasonable further progress toward the national goal 
of eliminating the discharge of all pollutants (section 301(b)(2)(A)). 
Similarly, under section 304, the goal of BPT and BCT is explicitly 
articulated by reference to the degree of effluent reduction 
attainable. (section 304(b)(1)(A) and section 304(b)(4)(A)). EPA has 
previously considered the costs of technologies in relation to the 
benefits of minimizing adverse environmental impact in establishing 
316(b) limits, which historically have been done on a case-by-case 
basis. See, e.g., In Re Public Service Co. of New Hampshire, 10 ERC 
1257 (June 17, 1977); In Re Public Service Co. of New Hampshire, 1 EAD 
455 (Aug. 4, 1978); Seacoast Anti-Pollution League v. Costle, 597 F. 2d 
306 (1st Cir. 1979). Under CWA section 316(b), EPA may consider the 
benefits that the technology-based standard would produce in a 
particular waterbody, to ensure that it will ``minimize adverse 
environmental impact.'' EPA believes that the technology-based 
standards established in this final rule will, as a national matter, 
``minimize adverse environmental impact.'' However, the degree of 
minimization contemplated by the national performance standards may not 
be justified by site-specific conditions. In other words, depending on 
the circumstances of the receiving water, it may be that application of 
less stringent controls than those that would otherwise be required by 
the performance standards will achieve the statutory requirement to 
``minimize'' adverse environmental impact, when considered in light of 
economic practicability. An extreme example is a highly degraded ship 
channel with few fish and shellfish, but such situations can only be 
identified and addressed through a site-specific assessment.
    For these reasons, EPA reasonably interprets the phrase ``minimize 
adverse environmental impact'' in section 316(b) to authorize a site-
specific consideration of the benefits of the technology-based standard 
on the receiving water. EPA continues to believe that any impingement 
or entrainment would be an adverse environmental impact, but has 
determined that 316(b) does not require minimization of adverse 
environmental impact beyond that which can be achieved at a cost that 
is economically practicable. EPA believes that the relationship between 
costs and benefits is one component of economic practicability for 
purposes of section 316(b), and as noted previously, the legislative 
history indicates that economic practicability may be considered in 
determining what is best technology available for purposes of 316(b). 
EPA believes that allowing a relaxation of the performance standards 
when costs significantly exceed benefits, but only to the extent 
justified by the significantly greater costs, is a reasonable way of 
ensuring that adverse environmental impact be minimized at an 
economically practicable cost. This does not mean that there is a need 
to make a finding of ``adverse environmental impact'' before 
performance standard based CWA section 316(b) requirements would apply. 
Rather, EPA is authorizing an exception to performance standard based 
requirements on a site-specific basis in limited circumstances: when 
the costs of complying with the national performance standards are 
significantly greater than the benefits of compliance at a particular 
site.
5. Authority To Allow Restoration To Comply With the Rule Requirements
    The final rule authorizes the use of restoration measures that 
produce and result in increases of fish and shellfish in a facility's 
watershed in place of, or as a supplement to, installing design and 
control technologies and/or operational measures that reduce 
impingement mortality and entrainment. Restoration measures can include 
a wide range of activities including measures to enhance fish habitat 
and reduce stresses on aquatic life; creation of new habitats to serve 
as spawning or nursery areas, and creation of a fish hatchery and/or 
restocking of fish being impinged and entrained with fish that perform 
a substantially similar function in the aquatic community.
    While the Phase I rule also authorized use of restoration measures, 
today's rule includes additional regulatory controls on the use of 
restoration measures to ensure that they are used appropriately to 
comply with the applicable performance requirements or site specific 
alternative requirements. For example, restoration measures are 
authorized only after a facility demonstrates to the permitting 
authority that it has evaluated other design and construction 
technologies and operational measures and determined that they are less 
feasible, less cost-effective, or less environmentally desirable than 
meeting the performance standards or alternative site-specific 
requirements in whole or in part through the use of restoration 
measures. The facility must also demonstrate that the proposed 
restoration measures will produce ecological benefits (i.e., the 
production of fish and shellfish for the facility's waterbody or 
watershed, including maintenance of community structure and function) 
at a level that is substantially similar to the level a facility would 
achieve through compliance with the applicable performance standards or 
alternative site-specific requirements. Further, the permitting 
authority must review and approve the restoration plan to determine 
whether the proposed restoration measures will meet the applicable 
performance standards or site specific alternative requirements. 
Consequently, the restoration provisions of today's rule are designed 
to minimize adverse environmental impact to a degree that is comparable 
to the other technologies on which the rule is based.
    The use of restoration to meet the requirements of section 316(b) 
is consistent with the goals of the Clean Water Act: measures that 
restore fish and shellfish to compensate for those that are impinged 
and entrained further the objective of the Clean Water Act ``to 
restore, maintain, and protect the biological integrity of the nation's 
waters.'' 33 U.S.C. 1251(a) (emphasis added). It is also consistent 
with EPA's and States' past practices in implementing section 316(b) in 
individual permit decisions. For at least twenty years, EPA and States 
have authorized existing facilities to comply with section 316(b) 
requirements, at least in part, through the use of restoration 
measures. For example, the Chalk Point Generating Station, located on 
the Patuxent River in Prince George's

[[Page 41628]]

County, Maryland constructed a fish rearing facility in partial 
compliance of its 316(b) obligations (DCN-1-5023-PR).
    Although the United States Court of Appeals for the Second Circuit 
recently remanded the portion of EPA's Phase I new facility rule that 
authorized restoration measures to meet that rule's requirements, EPA 
believes that portion of the decision should not apply to this Phase II 
rulemaking. Indeed, the Second Circuit explicitly stated that ``[i]n no 
way [does it] mean to predetermine the factors and standard applicable 
to Phase II and III of the rulemaking.'' Riverkeeper v. EPA, slip op. 
at 12, note 13 (2nd Cir. Feb. 3, 2004). This is probably because there 
are important differences between new and existing facilities that 
warrant interpreting section 316(b) more broadly to give existing 
facilities additional flexibility to comply with section 316(b). As 
noted above, restoration measures have been used to comply with section 
316(b) limits at existing facilities for several years because of the 
more limited availability of other technologies for existing 
facilities. Costs to retrofit an existing facility to install a 
``hard'' technology can be much higher than costs to install one at the 
time a facility is constructed, and those costs can vary considerably 
from site to site. Thus, the range of technologies that are 
``available'' to existing facilities to meet the performance standards 
is narrower than the range of technologies available to new facilities.
    In recognition of the vast differences between existing and new 
facilities, Congress established separate sections in the Clean Water 
Act for establishing discharge limitations on existing and new 
facilities. Effluent limitations guidelines for existing facilities are 
established under sections 301 and 304, whereas new source performance 
standards are established under section 306. Those sections set out two 
distinct sets of factors for developing effluent limitations guidelines 
for existing facilities and new source performance standards for new 
facilities. Notably, there are only two factors explicitly stated in 
section 306 for the Administrator to consider in establishing new 
source performance standards--cost and non-water quality impacts, 
whereas for existing facilities Congress calls upon EPA to consider a 
much broader range of factors in section 304(b)(2)(b):

the age of equipment and facilities involved, the process employed, 
the engineering aspects . . . of various types of control 
techniques, process changes, the cost of achieving such effluent 
reduction, non-water quality environmental impacts (including energy 
requirements), and such other factors as [EPA] deems appropriate.

    This list reflects the wide range of facility characteristics and 
circumstances that can influence the feasibility and availability of a 
particular technology across a particular industry. Existing facilities 
generally face more and different problems than new facilities because 
of the technological challenges and high costs associated with 
retrofitting as compared to building a new facility. Indeed, by 
including the phrase ``and such other factors as [EPA] deems 
appropriate,'' Congress made certain that EPA would have sufficient 
flexibility in establishing limitations for existing facilities to 
consider all relevant factors.
    For several other reasons, EPA believes the Second Circuit decision 
is not binding on this Phase II rule. First, section 316(b) requires 
the design of a cooling water intake structure to reflect the best 
technology available to ``minimize adverse environmental impact.'' The 
phrase ``minimize adverse environmental impact `` is not defined in 
section 316(b). For the Phase II rule, EPA interprets this phrase to 
allow facilities to minimize adverse environmental impact by reducing 
impingement and entrainment, or to minimize adverse environmental 
impact by compensating for those impacts after the fact. Section 316(b) 
does not explicitly state when the adverse environmental impact of 
cooling water structures must be minimized--that is whether they must 
be prevented from occurring in the first place or compensated for after 
the fact or where the minimization most occurs--at the point of intake 
or at some other location in the same watershed. Therefore, under 
Chevron, EPA is authorized to define ``minimize'' to authorize 
restoration at existing facilities to minimize the effects of adverse 
environmental impact.
    In another context under the Clean Water Act, EPA has interpreted 
authority to ``minimize adverse effects'' as including authority to 
require environmental restoration. Section 404 of the CWA authorizes 
the Army Corps of Engineers to issue permits for discharges of dredged 
or fill material into waters of the United States. EPA was granted 
authority to establish regulations containing environmental guidelines 
to be met by the Corps in issuing section 404 permits. See CWA section 
404(b)(1). Current regulations, in place since 1980, prohibit a 
discharge unless, among other requirements, all practicable steps are 
taken to avoid, minimize and mitigate for the environmental effects of 
a discharge. See 40 CFR 230.10. Of particular relevance here, the 
regulations require that steps be taken to ``minimize potential adverse 
effects of the discharge on the aquatic ecosystem'' 40 CFR 230.10(d). 
EPA has specifically defined minimization steps to include 
environmental restoration. See 40 CFR 230.75(d) (``Habitat development 
and restoration techniques can be used to minimize adverse impacts and 
to compensate for destroyed habitat'').
    Moreover, at the time of the Phase I litigation, EPA had not 
interpreted the term ``reflect'' in section 316(b), and therefore, the 
Second Circuit did not consider its meaning in determining whether 
restoration could be used as a design technology to meet the Phase I 
rule requirements. Section 316(b) requires that ``the location, design, 
construction, and capacity of cooling water intake structures reflect 
the best technology available for minimizing adverse environmental 
impact.'' (emphasis supplied). The term ``reflect'' is significant in 
two respects. First, it indicates that the design, location, 
construction and capacity of the cooling water intake structure itself 
must be based on the best technology available for such structures. 
This authorizes EPA to identify technologies that can be incorporated 
into the physical structure of the intake equipment. It also indicates 
that the choice of what actually is the best physical configuration of 
a particular cooling water intake structure can take into account, 
i.e., reflect, other technologies--and their effects--that are not 
incorporated into the structure itself. For example, barrier nets are 
not incorporated into the physical design of the cooling water intake 
structure, but their use--and effectiveness--influences the physical 
design of the cooling water intake structure. Another relevant example 
is the technology known as ``closed-cycle'' cooling. Although this 
technology is physically independent of the cooling water intake 
structure, it directly influences decisions regarding the design 
capacity of the cooling water intake structure: as more cooling water 
is recycled, less needs to be withdrawn. Both barrier nets and closed-
cycle cooling are considered ``design'' technologies. Similarly, 
properly designed restoration measures can be best technologies 
available that can influence the design of the physical cooling water 
intake structure. To put it another way, for purposes of minimizing 
adverse environmental impact, requirements for cooling water intake 
structures reflect a variety of best technologies available, which EPA

[[Page 41629]]

construes to include restoration measures. A dry cooling system is 
another example of a technology that although physically independent of 
the cooling water intake structure is nonetheless considered an 
acceptable method to minimize adverse environmental impacts. In fact, 
since a dry cooling system uses air as a cooling medium, it uses little 
or no water, dispensing altogether with the need for a cooling water 
intake structure.
    EPA has discretion to characterize restoration measures as 
technologies for purposes of section 316(b). Section 316(b) does not 
define either the phrase ``cooling water intake structure'' or the term 
``technology'' and, therefore, leaves their interpretation to EPA. EPA 
has defined the phrase cooling water intake structure in today's rule 
to mean the total physical structure and any associated waterways used 
to withdraw cooling water from waters of the United States. This 
definition embraces elements both internal and external to the intake 
equipment. EPA did not define the term technology in today's rule, but 
looked for guidance to section 304(b), which the Second Circuit has 
recognized can help illuminate section 316(b). Section 301(b)(2) best 
available technology limitations are based on factors set forth in 
section 304(b). Section 304(b), while not using the term technology, 
discusses the ``application of the best control measures and practices 
achievable including treatment techniques, process and procedure 
innovations, operating methods, and other alternatives.'' This is a 
broad, non-exclusive list. Indeed, BAT effluent limitations guidelines 
under this authority have been based on a vast array of treatment 
techniques, operation practices (including chemical substitution), and 
management practices. See 40 CFR Part 420 (effluent guidelines for 
concentrated animal feeding operations); 40 CFR Part 430, Subparts B & 
E (effluent guideline for pulp and paper industry); See also 62 FR 
18504 (April 15, 1998).
    Employing this broad concept of technology, in today's rule EPA has 
determined that the design of cooling water intake structures may 
reflect technologies relating to the restoration of fish and shellfish 
in the waters from which cooling water is withdrawn. Restoration is not 
included in the definition of ``design and construction technology'' in 
today's rule so as to distinguish restoration from ``hard'' 
technologies for purposes of the rule. Under the regulatory scheme of 
the final rule, restoration is treated differently than other 
technologies for several purposes, all of which are to help ensure that 
restoration projects achieve substantially similar performance as 
design and construction technologies and/or operational measures. When 
these restoration technologies are used they must produce ecological 
benefits (the production of fish and shellfish for a facility's 
waterbody or watershed, including maintenance of community structure 
and function) at a level that is substantially similar to the level the 
facility would achieve by using other design and construction 
technologies and/or operational measures to achieve the applicable 
performance standards or alternative site-specific performance 
requirements in Sec.  125.94. In other words, the operation of the 
cooling water intake structure together with these restoration 
technologies will achieve the overall performance objective of the 
statute: to minimize the adverse environmental impact of withdrawing 
cooling water. For facilities using this authority, their hardware 
decisions for the cooling water intake structure thus take into 
account--or reflect--the impacts of restoration technology.
    EPA acknowledges that in 1982, when Congress was considering 
substantial amendments to the Clean Water Act, EPA testified in support 
of a proposed amendment to CWA section 316(b) that would have expressly 
authorized the use of restoration measures as a compliance option, 
suggesting that EPA may have interpreted section 316(b) at that time as 
not authorizing restoration measures to minimize the adverse 
environmental impact of cooling water intake structures. In EPA's view, 
the Second Circuit gave undue weight to that testimony, particularly 
because it was provided before the Supreme Court's decision in Chevron 
U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), which 
gave administrative agencies latitude to fill in the gaps created by 
ambiguities in statutes the agencies have been charged by Congress to 
implement. For at least twenty years, EPA and States have authorized 
existing facilities to comply with section 316(b) requirements, at 
least in part, through the use of restoration measures. Additionally, 
since 1982 EPA has gathered substantially more data to inform its 
judgment regarding cooling water intake structures, the environmental 
impact resulting from them, and various technologies available to 
reduce impingement and entrainment. Finally, EPA notes that, in 
contrast to water quality based effluent limitations that are included 
in NPDES permits to meet water quality standards, the required 
performance of restoration measures under this final rule is not tied 
to conditions in the water body. Rather it is tied directly to the 
performance standards, just as is the performance of the other 
technologies that facilities may use to meet the standards. While the 
design and operation of restoration measures will necessarily be linked 
to conditions in the waterbody (as is also the case for ``hard'' 
technologies) the performance standards that restoration measures must 
meet are not.
6. Authority To Apply CWA Section 316(b) Requirements to Existing 
Facilities
    Some commenters argued that CWA Sec.  316(b) does not apply to 
existing facilities, but rather authorizes only a one-time, pre-
construction review of cooling water intake structure location, design, 
construction and capacity.
    EPA disagrees with this assertion. CWA section 316(b) applies to 
``any standard established pursuant to section 1311 [CWA section 301] 
or section 1316 [CWA section 306].'' CWA section 301 establishes the 
statutory authority for EPA to promulgate technology-based standards 
for effluent discharges from existing sources. Therefore, CWA section 
316(b) requirements can, and indeed must, apply to existing facilities. 
Given that section 316(b) requirements apply to existing facilities, 
such requirements cannot reasonably be viewed as mandating only a one-
time, pre-construction review. Moreover, as the court noted in 
Riverkeeper v. EPA, slip op. at 44-45 (2nd Cir. Feb. 3, 2004), ``if 
Congress intended to grandfather in new or modified intake structures 
as well as the related point sources that discharge heat, it could have 
done so in section 316(c).''
7. Authority To Regulate ``Capacity'' of the ``Intake Structure'' 
Through Restrictions on Flow Volume
    Some commenters asserted that EPA was not authorized to require 
closed-cycle cooling systems, pointing out that CWA section 316(b) 
addresses cooling water ``intake structures,'' not cooling systems or 
cooling operations. EPA's performance standards based on closed-cycle 
cooling, they argued, constitutes an impermissible restriction of the 
cooling system or operation, which is not part of the ``intake 
structure'' itself. Others asserted that the term ``capacity,'' as used 
in CWA section 316(b), refers to the size of the cooling water intake 
structure, not the volume of flow through the intake. They therefore 
questioned EPA's authority to regulate flow volume by requiring the use 
of closed-cycle cooling systems.

[[Page 41630]]

    The rule does not in fact require the use of closed-cycle cooling 
systems. Rather, the rule provides facilities with five different 
compliance options, only one of which is based on closed-cycle cooling 
technology. Moreover, EPA is authorized to set performance standards 
based on closed-cycle cooling technology, as it did in the Phase I 
rule, which was upheld in Riverkeeper v. EPA, slip op. (2nd Cir. Feb. 
3, 2004). See also Section III.
8. Authority To Determine That Technologies Short of Closed-cycle 
Cooling Constitute ``Best Technology Available To Minimize Adverse 
Environmental Impact''
    Many commenters asserted that closed-cycle cooling is the ``best 
technology available to minimize adverse environmental impact,'' and 
that EPA must therefore require facilities to reduce their cooling 
water intake capacity to a level commensurate with closed-cycle 
cooling. According to these commenters, this rule violates CWA section 
316(b) by adopting performance standards less protective than ``best 
technology available.''
    EPA reasonably rejected closed-cycle cooling systems as ``best 
technology available'' based on consideration of relevant factors, 
including the costs of closed-cycle cooling, the energy impacts, the 
relative effectiveness of closed-cycle cooling in minimizing 
impingement and entrainment in variable waterbodies, and the 
availability of other design and control technologies that can be 
effective in significantly reducing environmental impacts. As the court 
held in Riverkeeper v. EPA, slip op. at 29 (2nd Cir. Feb. 3, 2004), 
``the Clean Water Act allows EPA to make a choice among alternatives 
based on more than impingement and entrainment.'' In short, EPA has 
discretion to consider a variety of factors besides the efficacy of 
technologies, including cost, and to compare the relative effectiveness 
of technologies that reduce impingement and entrainment. EPA's weighing 
of the factors is entitled to a high degree of deference. See also 
Section III and VII.
9. Authority To Require Implementation of CWA Section 316(b) Through 
NPDES Permits
    Some commenters argued that EPA lacks authority to include section 
316(b) requirements in section 402 NPDES permits, because--unlike 
sections 301, 306, and 402--section 316(b) regulates ``intakes'' and 
not ``discharges.''
    EPA disagrees with this comment. This rule properly requires 
implementation of CWA section 316(b) standards through CWA section 402 
NPDES permits. CWA section 402(a)(1) authorizes the issuance of NPDES 
permits for discharges that comply with effluent guidelines limitations 
under CWA sections 301 and 306. CWA section 316(b) requirements can be 
implemented through CWA section 402 because they apply to all point 
sources subject to standards issued under CWA sections 301 and 306. 
See, U.S. Steel Corp v. Train, 556 F.2d 822, 850 (7th Cir. 1977) 
(finding that CWA section 402 implicitly requires that CWA section 
316(b) be implemented through NPDES permits). EPA's choice of NPDES 
permits, which already reflect CWA sections 301 and 306 effluent 
limitations, is reasonable.
10. Authority To Implement CWA Section 316(b) Requirements Without 
Compensating Regulated Entities for ``Taking'' of Property
    Several commenters suggest that this rule authorizes an 
impermissible regulatory taking. Specifically, they argue that the rule 
requires facilities to limit their intake flows, thus impairing their 
property rights to the water and entitling them to compensation under 
the Fifth Amendment to the U.S. Constitution.
    EPA notes, however, that the rule does not in fact require a 
facility to limit its intake flows. Rather, it provides a facility with 
a variety of compliance options, only one of which is based on flow 
limitations. While a facility could choose to comply with the section 
316(b) requirements by reducing its intake flow to a level commensurate 
with a closed-cycle cooling system (the first compliance option), it 
could also select one of the other compliance options that does not 
require flow restrictions. EPA therefore believes that this rule does 
not authorize a compensable ``taking'' of property within the meaning 
of the Fifth Amendment.

IX. Implementation

    As in the Phase I rule, section 316(b) requirements for Phase II 
existing facilities will be implemented through the NPDES permit 
program. Today's final rule establishes application requirements in 
Sec. Sec.  122.21 and 125.95, monitoring requirements in Sec.  125.96, 
and record keeping and reporting requirements in Sec.  125.97 for Phase 
II existing facilities. The final regulations also require the Director 
to review application materials submitted by each regulated facility 
and include monitoring and record keeping requirements in the permit 
(Sec.  125.98). EPA will develop a model permit and permitting guidance 
to assist Directors in implementing these requirements. In addition, 
the Agency will develop implementation guidance for owners and 
operators that will address how to comply with the application 
requirements, the sampling and monitoring requirements, and the record 
keeping and reporting requirements in these final regulations.
    In this final rule, an existing facility may choose one of five 
compliance alternatives for establishing best technology available for 
minimizing adverse environmental impact at the site:
    (1) Demonstrate that it will reduce or has reduced its intake flow 
commensurate with a closed-cycle recirculating system and is therefore 
deemed to have met the impingement mortality and entrainment 
performance standards, or that it will reduce or has reduced the design 
intake velocity of its cooling water intake structure to 0.5 feet per 
second (ft/s) and is therefore deemed to have met the impingement 
mortality performance standards;
    (2) Demonstrate that its existing design and construction 
technologies, operational measures, and/or restoration measures meet 
the performance standards and/or restoration requirements;
    (3) Demonstrate that it has selected and will install and properly 
operate and maintain design and construction technologies, operational 
measures, and/or restoration measures that will, in combination with 
any existing design and construction technologies, operational 
measures, and/or restoration measures, meet the specified performance 
standards and/or restoration requirements;
    (4) Demonstrate that it meets the applicability criteria for a 
rule-specified technology or a technology that has been pre-approved by 
the Director and that it has installed, or will install, and will 
properly operate and maintain the technology; or,
    (5) Demonstrate that it is eligible for a site-specific 
determination of best technology available to minimize adverse 
environmental impact and that it has selected, installed, and is 
properly operating and maintaining, or will install and properly 
operate and maintain design and construction technologies, operational 
measures, and/or restoration measures that the Director has determined 
to be the best technology available to minimize adverse environmental 
impact for the facility.
    The application, monitoring, record keeping, and reporting 
requirements for

[[Page 41631]]

each of the compliance alternatives are detailed in the following 
sections.

A. When Does the Final Rule Become Effective?

    This rule becomes effective sixty (60) days after the date of 
publication in the Federal Register. After the effective date of the 
regulation, existing facilities will need to comply when an NPDES 
permit containing requirements consistent with Subpart J is issued to 
the facility (see Sec.  125.92). Under current NPDES program 
regulations, this will occur when an existing NPDES permit is reissued 
or, when an existing permit is modified or revoked and reissued. Under 
today's rule, a facility that is required to comply with this rule 
within the first four years after the publication date of this rule may 
request that the Director approve an extended schedule for submitting 
its Comprehensive Demonstration Study. This schedule must be as 
expeditious as practicable and not extend beyond three years and 180 
days after the publication date of the final rule. The Comprehensive 
Demonstration Study, once submitted, forms the basis for the Director's 
determination of specific requirements consistent with Subpart J to be 
included in the permit. EPA has included this provision to afford 
facilities time to collect information and perform studies, including 
pilot studies where necessary, needed to support the development of the 
Comprehensive Demonstration Study.
    Between the time the existing permit expires and the time an NPDES 
permit containing requirements consistent with this subpart is issued 
to the facility, permit requirements reflecting the best technology 
available to minimize adverse environmental impact will continue to be 
determined based on the Director's best professional judgement.

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

    The NPDES regulations governing the permit application process at 
40 CFR 122.21 require that facilities currently holding a permit submit 
an application for permit renewal 180 days prior to the end of the 
current permit term, which is five years (see Sec.  122.21(d)(2)). If 
you are the owner or operator of a facility that is subject to this 
final rule, you will be required to submit the information specified at 
40 CFR 122.21(r)(2), (3), and (5) and all applicable sections of Sec.  
125.95, except for the Proposal for Information Collection, with your 
application for permit reissuance.
    The Proposal for Information Collection component of Sec.  125.95 
should be submitted to the Director for review and comment prior to the 
start of information collection activities. For a typical facility that 
plans to install a technology, it is estimated that a facility would 
need to submit this Proposal for Information Collection about fifteen 
(15) months prior to the submission of the remainder of the required 
information, which is about twenty-one (21) months prior to the 
expiration of your current permit. This approximate timing is based on 
the sequential Comprehensive Demonstration Study requirements and the 
estimated level of effort required to complete the studies and allow 
time for the Director's review and approval. The timing provided in 
this section is for illustrative purposes only and represents a 
schedule that the average facility may need to follow to meet the 
deadlines established in today's rule. Some facilities may require 
more, or less time to perform the studies and prepare the application 
requirements. All facilities, except those that choose to comply with 
the rule by reducing intake capacity to a level commensurate with a 
closed-cycle recirculating system in accordance with Sec.  
125.94(a)(1)(i), or by adopting a pre-approved technology in accordance 
with Sec.  125.94(a)(4) must submit a Proposal for Information 
Collection for review and comment by the Director (Sec.  125.95(b)(1)). 
Facilities that comply with impingement mortality requirements by 
reducing intake velocity to 0.5 ft/s or less in accordance with Sec.  
125.95(a)(1)(ii) will only need to submit a Comprehensive Demonstration 
Study, including a Proposal for Information Collection, for entrainment 
reduction requirements, if applicable. The Proposal for Information 
Collection requirements are detailed later in this section. Figure 1 
presents an example of a possible timeframe a facility may follow in 
preparing and submitting application components.

BILLING CODE 6560-50-P

[[Page 41632]]

[GRAPHIC] [TIFF OMITTED] TR09JY04.000

    Following submission of the Proposal for Information Collection, 
the Director will review and provide comments on the proposal. During 
this time, the facility may proceed with planning, assessment, and data 
collection

[[Page 41633]]

activities in fulfillment of Comprehensive Demonstration Study 
requirements. The Director is encouraged to provide comments 
expeditiously (i.e., within 60 days) so the permit applicant can make 
responsive modifications to its information gathering activities.
    It is assumed that most facilities would need approximately one 
year to complete the studies outlined in the Proposal for Information 
Collection. These must be completed at least 180 days prior to the end 
of the current permit term, by which time the remainder of required 
application information must be submitted. If the facility requires 
more than one year to complete studies described in the Proposal for 
Information Collection, the facility are encouraged to consult with the 
Director. Facilities are also encouraged to consult with the Director 
regarding their schedule for study completion.
    After the first permit containing requirements consistent with 
Subpart J is issued, facilities may submit a request to their Director 
soliciting a reduced information collection effort for subsequent 
permit applications in accordance with Sec.  125.95(a)(3), which allows 
facilities to demonstrate that the conditions at their facility and 
within the waterbody in which their intake is located remain 
substantially unchanged since their previous permit application. The 
request for reduced cooling water intake structure and waterbody 
application information must contain a list and justification for each 
information item in Sec. Sec.  122.21(r) and 125.95(b) that has not 
changed since the previous permit application. The applicant must 
submit this request at least one year prior to the expiration of the 
current permit term and the Director is required to act on the request 
within 60 days.
    The Director must review and approve the information you provide in 
your permit application, confirm whether your facility should be 
regulated as an existing facility under these final regulations, or 
under Phase III regulations for existing facilities that will be 
developed in the future, or as a new facility under regulations that 
were published on December 19, 2001 (66 FR 65256), and confirm the 
compliance alternative selected (compliance alternatives 1, 2, 3, 4, or 
5). Following review and approval of your permit application, the 
Director will develop a draft permit for public notice and comment. The 
comment period will allow the facility and other interested parties to 
review the draft permit conditions and provide comments to the 
Director. The Director will consider all public comments received on 
the draft permit and develop a final permit based upon the application 
studies submitted and other information submitted during the comment 
period, as appropriate. The Director will incorporate the relevant 
requirements for the facility's cooling water intake structure(s) into 
the final permit.
    Today's final rule modifies regulations at 40 CFR 122.21(r) to 
require Phase II existing facilities to prepare and submit some of the 
same information required for new facilities. Phase II existing 
facilities are required to submit two general categories of information 
when they apply for a reissued NPDES permit: (1) Physical data to 
characterize the source waterbody in the vicinity where the cooling 
water intake structures are located (40 CFR 122.21(r)(2)), and (2) data 
to characterize the design and operation of the cooling water intake 
structures (40 CFR 122.21(r)(3)). Unlike new facilities, however, Phase 
II existing facilities are not required to submit the Source Water 
Baseline Biological Characterization Data required under 40 CFR 
122.21(r)(4). Today's final rule adds a new requirement at 40 CFR 
122.21(r)(5) to require a facility to submit information describing the 
design and operating characteristics of its cooling water system(s) and 
how it/they relate to the cooling water intake structure(s) at the 
facility.
    In addition, today's final rule requires all Phase II existing 
facilities to submit the information required under Sec.  125.95 
consistent with the compliance alternative selected. In general, the 
final application requirements in Sec.  125.95 require most Phase II 
existing facility applicants to submit some or all of the components of 
a Comprehensive Demonstration Study (Sec.  125.95(b), see also Exhibit 
II in section V). As noted in section V, facilities that do not need to 
conduct a Comprehensive Demonstration Study are those that (1) reduce 
their flow commensurate with a closed cycle, recirculating cooling 
system, (2) install a rule-specified or Director-approved technology in 
accordance with Sec.  125.99 (except that these facilities must still 
submit a Technology Installation and Operation Plan and Verification 
Monitoring Plan), or (3) reduce intake velocity to 0.5 ft/s or less 
(except that these facilities must still submit a Comprehensive 
Demonstration Study for entrainment requirements, if applicable).
    Each component of the Comprehensive Demonstration Study and its 
applicability is described later in this section. In addition, the 
requirements for each of the five compliance alternatives are detailed, 
with respect to which components are required for each alternative.
1. Source Water Physical Data (40 CFR 122.21(r)(2))
    Under the final requirements at 40 CFR 122.21(r)(1)(ii), Phase II 
existing facilities subject to this final rule are required to provide 
the source water physical data specified at 40 CFR 122.21(r)(2) in 
their application for a reissued permit. These data are needed to 
characterize the facility and evaluate the type of waterbody and 
species potentially affected by the cooling water intake structure. The 
Director is expected to use this information to evaluate the 
appropriateness of the design and construction technologies, 
operational measures, and/or restoration measures proposed by the 
applicant.
    The applicant is required to submit the following specific data: 
(1) A narrative description and scaled drawings showing the physical 
configuration of all source waterbodies used by the facility, including 
areal dimensions, depths, salinity and temperature regimes, and other 
documentation that supports the facility's determination of the 
waterbody type where each cooling water intake structure is located; 
(2) an identification and characterization of the source waterbody's 
hydrological and geomorphological features, as well as the methods used 
to conduct any physical studies to determine the intake's area of 
influence within the waterbody and the results of such studies; and (3) 
locational maps.
2. Cooling Water Intake Structure Data (40 CFR 122.21(r)(3))
    Under the final requirements at 40 CFR 122.21(r)(1)(ii), Phase II 
existing facilities are required to submit the data specified at 40 CFR 
122.21(r)(3) to characterize the cooling water intake structure which 
should assist in the evaluation of its potential for impingement and 
entrainment of aquatic organisms. Information on the design of the 
intake structure and its location in the water column, in conjunction 
with biological information, will allow the permit writer to evaluate 
which species, or life stages of a species, are potentially subject to 
impingement and entrainment. A diagram of the facility's water balance 
should be used to identify the proportion of intake water used for 
cooling, make-up, and process water. The water balance diagram also 
provides a picture of the total flow in and out of the facility,

[[Page 41634]]

allowing the permit writer to evaluate the suitability of proposed 
design and construction technologies and/or operational measures.
    The applicant is required to submit the following specific data: 
(1) A narrative description of the configuration of each of its cooling 
water intake structures and where they are located in the waterbody and 
in the water column; (2) latitude and longitude in degrees, minutes, 
and seconds for each of its cooling water intake structures; (3) a 
narrative description of the operation of each of the cooling water 
intake structures, including design intake flows, daily hours of 
operation, number of days of the year in operation, and seasonal 
operation schedules, if applicable; (4) a flow distribution and water 
balance diagram that includes all sources of water to the facility, 
recirculating flows, and discharges; and (5) engineering drawings of 
the cooling water intake structure(s).
3. Cooling Water System Data (40 CFR 122.21(r)(5))
    Under the final requirements at 40 CFR 122.22(r)(1)(ii), Phase II 
existing facilities are required to submit the cooling water system 
data specified at 40 CFR 122.21(r)(5) to characterize the operation of 
cooling water systems and their relationship to the cooling water 
intake structure(s) at the facility. Also required is a narrative 
description of the proportion of design intake flow that is used in the 
system, the number of days of the year that the cooling water system is 
in operation, and any seasonal changes in the operation of the system, 
if applicable. The facility must also submit design and engineering 
calculations prepared by a qualified expert, such as a professional 
engineer, and supporting data to support the narrative description. 
This information is expected to be used by the applicant and the 
Director in determining the appropriate standards that can be applied 
to the Phase II facility.
4. Comprehensive Demonstration Study (Sec.  125.95(b))
    Final requirements at Sec.  125.95(b) require all existing 
facilities, except those deemed to have met the performance standards 
by reducing intake capacity to a level commensurate with the use of a 
closed-cycle, recirculating cooling water system, or by reducing intake 
velocity to 0.5 ft/s or less (impingement mortality standards only), or 
facilities that select an approved technology in accordance with Sec.  
125.94(a)(4), to perform and submit to the Director all applicable 
components of a Comprehensive Demonstration Study, including data and 
detailed analyses to demonstrate that they will meet applicable 
requirements in Sec.  125.94(b). As noted in section V, Comprehensive 
Demonstration Study requirements vary depending on the compliance 
alternative selected.
    The Comprehensive Demonstration Study has seven components:
     Proposal for Information Collection;
     Source Waterbody Flow Information;
     Impingement Mortality and/or Entrainment Characterization 
Study;
     Technology and Compliance Assessment Information;
     Restoration Plan;
     Information to Support Site-specific Determination of Best 
Technology Available for Minimizing Adverse Environmental Impact; and
     Verification Monitoring Plan.
    All Phase II existing facilities, except those mentioned above, are 
required to submit at a minimum the following: a Proposal for 
Information Collection (Sec.  125.95(b)(1)); Source Waterbody Flow 
Information (Sec.  125.95(b)(2)); an Impingement Mortality and/or 
Entrainment Characterization Study (Sec.  125.95(b)(3)); and a 
Verification Monitoring Plan (Sec.  125.95(b)(7)). Note that facilities 
selecting restoration measures provide a monitoring plan as part of 
their Restoration Plan, in accordance with Sec.  125.95(b)(5)(v), 
rather than a Verification Monitoring Plan in accordance with Sec.  
125.95(b)(7). The requirements in these two provisions are similar, but 
tailored specifically to the monitoring needs of restoration projects, 
and design and construction technologies and operational measures, 
respectively. Phase II existing facilities that have reduced their 
intake velocity to less than or equal to 0.5 ft/s but are still 
required to reduce entrainment (if the standard applies), must submit 
only those components of the Impingement Mortality and/or Entrainment 
Characterization Study pertaining to entrainment, in addition to the 
other required components of the Comprehensive Demonstration Study. 
Facilities that are required to meet only the impingement mortality 
reduction requirements in Sec.  125.94(b), are required to submit a 
study only for the impingement reduction requirements.
    Facilities that comply with applicable requirements either wholly 
or in part through the use of existing or proposed design and 
construction technologies or in part through the use of existing or 
proposed design and construction technologies, and/or operational 
measures must submit the Technology and Compliance Assessment 
Information in Sec.  125.95(b)(4), consisting of a Design and 
Construction Technology Plan (Sec.  125.95(b)(4)(i)) and a Technology 
Installation and Operation Plan (Sec.  125.95(b)(4)(ii)). (Facilities 
that use a pre-approved technology in accordance with Sec.  
125.94(b)(4) need only submit the Technology Installation and Operation 
Plan.) The Technology Installation and Operation Plan explains how the 
facility intends to install, operate, maintain, monitor, and adaptively 
manage the selected technologies to meet the applicable performance 
standards or site-specific technology requirements, and in most cases 
will provide the basis for determining compliance with Sec.  125.94(b).
    Only those Phase II existing facilities that propose to use 
restoration measures wholly or in part to meet the performance 
standards in Sec.  125.94(b) or site-specific requirements developed 
pursuant to Sec.  125.94(a)(5) are required to submit the Restoration 
Plan (Sec.  125.95(b)(5)). This Plan serves an analogous function for 
restoration measures to that served by the Technology and Compliance 
Assessment Information for design and construction technologies and 
operational measures, in that it shows the design of the measures, 
explains how the facility will construct, maintain, monitor, and 
adaptively manage the measures to meet applicable performance standards 
and/or site specific requirements, and serves as a basis for 
determining compliance.
    Only those Phase II existing facilities who request a site-specific 
determination of the best technology available are required to submit 
Information to Support Site-specific Determination of Best Technology 
Available for Minimizing Adverse Environmental Impact (Sec.  
125.95(b)(6)). Facilities that select the compliance alternative at 
Sec.  125.94(a)(4) (Approved Technology), are required to submit only 
two items: the Technology Installation and Operation Plan (Sec.  
125.95(b)(4)(ii)) and the Verification Monitoring Plan (Sec.  
125.95(b)(7)).
a. Proposal for Information Collection
    As a facility, you are required to submit to the Director for 
review and comment, a proposal stating what information will be 
collected to support the Comprehensive Demonstration Study (see Sec.  
125.95(b)(1)). This proposal must provide the following:
     A description of the proposed and/or implemented 
technology(ies) and/or restoration measures to be evaluated in the 
study (Sec.  125.95(b)(1)(i));

[[Page 41635]]

     A list and description of any historical studies 
characterizing impingement and entrainment and/or the physical and 
biological conditions in the vicinity of the cooling water intake 
structures and their relevance to this proposed study (Sec.  
125.95(b)(1)(ii)). If you propose to use existing data, you must 
demonstrate the extent to which the data are representative of current 
conditions and that the data were collected using appropriate quality 
assurance/quality control procedures;
     A summary of any past, ongoing, or voluntary consultations 
with appropriate Federal, State, and Tribal fish and wildlife agencies 
that are relevant to this study and a copy of written comments received 
as a result of such consultation (Sec.  125.95(b)(1)(iii));
     A sampling plan for any new field studies you propose to 
conduct in order to ensure that you have sufficient data to develop a 
scientifically valid estimate of impingement and entrainment at your 
site (Sec.  125.95(b)(1)(iv)). The sampling plan must document all 
methods and quality assurance/quality control procedures for sampling 
and data analysis. The sampling and data analysis methods you propose 
must be appropriate for a quantitative survey and must take into 
account the methods used in other studies performed in the source 
waterbody. Also, the methods must be consistent with any methods 
required by the Director. The sampling plan must include a description 
of the study area (including the area of influence of the cooling water 
intake structure(s)), and provide taxonomic identifications of the 
sampled or evaluated biological assemblages (including all life stages 
of fish and shellfish) to the extent this is known in advance and 
relevant to the development of the plan.
    In addition, the proposal should provide other information, where 
available, that would aid the Director in reviewing and commenting on 
your plans for conducting the Comprehensive Demonstration Study (e.g., 
information on how you plan to conduct a Benefits Valuation Study, or 
gather additional data to support development of a Restoration Plan). 
EPA recognizes that in some cases collection and analysis of 
information will be an iterative process and plans for information 
collection may change as new data needs are identified. For example, a 
facility may not be able to design a Benefits Valuation Study and 
determine what additional data are needed (e.g., quantified information 
on non-use benefits) until it has first collected and analyzed the data 
for its Impingement Mortality and/or Entrainment Characterization 
Study. While the Proposal for Information Collection is only required 
to be submitted once, EPA encourages permit applicants to consult with 
the Director as appropriate after the proposal has been submitted, in 
order to ensure that the Director has complete and appropriate 
information to develop permit conditions once the permit is submitted.
    As stated previously, the proposal for information collection must 
be submitted prior to the start of information collection activities 
and should allow sufficient time for review and comment by the 
Director, although facilities are permitted to begin data collection 
activities before receiving the Director's comments. Directors are 
encouraged to provide their comments expeditiously (i.e., within 60 
days) to allow facilities time to make responsive modifications in 
their information collection plans. Adequate time for data collection 
efforts identified in the proposal for information collection prior to 
the due date for the permit application should also be scheduled.
b. Source Waterbody Flow Information
    Under the requirements at Sec.  125.95(b)(2)(i), Phase II existing 
facilities (except those that comply with the rule under Sec.  
125.94(a)(1)(i) with cooling water intake structures that withdraw 
cooling water from freshwater rivers or streams are required to provide 
the documentation showing the mean annual flow of the waterbody and any 
supporting documentation and engineering calculations that allow a 
determination of whether they are withdrawing less than or greater than 
five (5) percent of the annual mean flow. This will provide information 
needed to determine whether the entrainment performance standards of 
Sec.  125.94(b)(2) apply to the facility. Two potential sources of the 
documentation are publicly available flow data from a nearby U.S. 
Geological Survey (USGS) gauging station or actual instream flow 
monitoring data collected by the facility. Representative historical 
data (from a period of time up to 10 years, if available) must be used 
to make this determination.
    Under Sec.  125.95(b)(2)(ii), Phase II existing facilities with 
cooling water intake structures that withdraw cooling water from a lake 
(other than one of the Great Lakes) or reservoir and that propose to 
increase the facility's design intake flow are required to submit a 
narrative description of the thermal stratification of the waterbody 
and any supporting documentation and engineering calculations showing 
that the increased total design intake flow meets the requirement to 
not disrupt the natural thermal stratification or turnover pattern 
(where present) of the source water in a way that adversely impacts 
fisheries, including the results of any consultations with Federal, 
State, or Tribal fish or wildlife management agencies. Typically, this 
natural thermal stratification will be defined by the thermocline, 
which may be affected to a certain extent by the withdrawal of cooler 
water and the discharge of heated water into the system. If increased 
total design intake flow is proposed, and disruption of the natural 
thermal stratification is a positive or neutral impact, the facility 
should include this information with the data submitted in this 
section.
c. Impingement Mortality and/or Entrainment Characterization Study 
(Sec.  125.95(b)(3))
    The final regulations require that you submit the results of an 
Impingement Mortality and/or Entrainment Characterization Study in 
accordance with Sec.  125.95(b)(3). If your facility has reduced its 
design, through-screen intake velocity to less than or equal to 0.5 ft/
s, you are not required to submit the impingement mortality component 
of this study (Sec.  125.94(a)(1)(ii)). Facilities whose capacity 
utilization rate is less than 15 percent, facilities that withdraw 
cooling water only from a lake or reservoir other than one of the Great 
Lakes, and those facilities that withdraw less than 5 percent of the 
mean annual flow of a freshwater river or stream would only be required 
to submit the impingement mortality component of this study because no 
performance standards for entrainment apply. This Impingement Mortality 
and Entrainment characterization must include the following: (1) 
Taxonomic identifications of all life stages of fish, shellfish, and 
any species protected under Federal, State, or Tribal Law (including 
threatened or endangered species) that are in the vicinity of the 
cooling water intake structure(s) and are susceptible to impingement 
and entrainment; (2) a characterization of all life stages of fish, 
shellfish, and any species protected under Federal, State, or Tribal 
Law (including threatened or endangered species) identified in the 
taxonomic identification noted above, including a description of the 
abundance and temporal and spatial characteristics in the vicinity of 
the cooling water intake structure(s), based on sufficient data to 
characterize annual, seasonal, and diel variations in impingement 
mortality and entrainment (e.g., related to climate and weather 
differences, spawning, feeding and water column migration); and (3)

[[Page 41636]]

documentation of the current impingement mortality and entrainment of 
all life stages of fish, shellfish, and any species protected under 
Federal, State, or Tribal Law (including threatened or endangered 
species) identified above and an estimate of impingement mortality and 
entrainment to be used as the calculation baseline. The documentation 
may include historical data that are representative of the current 
operation of your facility and of biological conditions at the site. 
This information must be provided in sufficient detail to support 
development of the other elements of the Comprehensive Demonstration 
Study. Thus, while the taxonomic identification in item 1 will need to 
be fairly comprehensive, the quantitative data required in items 2 and 
3 may be more focused on species of concern, and/or species for which 
data are available.
    Impingement mortality and entrainment samples to support the 
calculations required by the Design and Construction Technology Plan 
and Restoration Plan must be collected during periods of representative 
operational flows for the cooling water intake structure and the flows 
associated with the samples must be documented. EPA recommends that the 
facility coordinate a review of its list of threatened, endangered, or 
other protected species with the U.S. Fish and Wildlife Service, 
National Marine Fisheries Service, or other relevant agencies to ensure 
that potential impacts to these species have been evaluated.
d. Technology and Compliance Assessment Information (Sec.  
125.95(b)(4))
    The Technology and Compliance Assessment Information required under 
Sec.  125.95(b)(4) is comprised of two parts: (1) The Design and 
Construction Technology Plan; and (2) the Technology Installation and 
Operation Plan. If you plan to utilize the compliance alternative in 
Sec.  125.94(a)(4), you need only submit the Technology Installation 
and Operation Plan. If you plan to utilize the compliance alternative 
in Sec.  125.94(a)(2) or (3) using design and construction technologies 
and/or operational measures (either existing or new), you must submit 
both parts. Note that facilities seeking a site-specific determination 
of BTA in accordance with Sec.  125.94(a)(5), must submit a Site-
Specific Technology Plan in accordance with Sec.  125.95(b)(6)(iii) 
rather than a Design and Construction Technology Plan. The two plans 
contain similar requirements, but are tailored to the compliance 
alternative selected. Facilities seeking a site-specific determination 
of the best technology available must submit a Technology Installation 
and Operation Plan along with their Site-Specific Technology Plan.
    The Design and Construction Technology Plan must explain the 
technologies or operational measures selected by a facility to meet the 
requirements in Sec.  125.94(a)(2) and (3). The Agency recognizes that 
selection of the specific technology or group of technologies for your 
site will depend on individual facility and waterbody conditions. 
Examples of appropriate technologies may include, but are not limited 
to, wedgewire screens, fine mesh screens, fish handling and return 
systems, barrier nets, aquatic filter barrier systems, and enlargement 
of the cooling water intake structure to reduce velocity. Examples of 
operational measures include, but are not limited to, seasonal 
shutdowns or reductions in flow, and continuous or more frequent 
rotation of travelling screens. Information required as part of your 
Design and Construction Technology Plan includes the following: (1) 
capacity utilization rate for your facility (or for individual intake 
structures where appropriate) and supporting data, including average 
annual net generation of the facility in megawatt hours (MWh) as 
measured over a five-year period (if available) of representative 
operating conditions and the total net capacity of the facility in 
megawatts (MW) and calculations (Sec.  125.95(b)(4)(i)); (2) a 
narrative description of the design and operation of all design and 
construction technologies and/or operational measures that you have or 
will put into place to meet the performance standards for reduction of 
impingement mortality of those species most susceptible to impingement, 
and information that demonstrates the efficacy of those technologies 
and/or operational measures for those species; (3) a description of the 
design and operation of all design and construction technologies or 
operational measures that you have or will put into place, to meet the 
performance standards for reduction of entrainment for those species 
most susceptible to entrainment, if applicable to your facility, and 
information that demonstrates the efficacy of those technologies and/or 
operational measures for those species; (4) calculations of the 
reduction in impingement mortality and/or entrainment of all life 
stages of fish and shellfish that would be achieved by the technologies 
and/or operational measures you have selected based on the Impingement 
Mortality and/or Entrainment Characterization Study in Sec.  
125.95(b)(3); and (5) design and engineering calculations, drawings, 
and estimates to support the narrative descriptions required in the 
Design and Construction Technology Plan prepared by a qualified expert 
such as a professional engineer.
    If your facility has multiple intake structures and each is 
dedicated exclusively to the cooling water needs of one of more 
generating units, you may calculate the capacity utilization rate 
separately for each structure, for purposes of determining whether 
entrainment reduction performance standards are applicable. Note that 
you would still be required to consider the total design intake flow at 
all structures combined in determining whether your design intake flow 
exceeds 5 percent of the mean annual flow of a freshwater river or 
stream. If your capacity utilization rate, for either a single intake 
structure or the facility as a whole, is 15 percent or greater based on 
the historical 5 year annual average, but you make a binding commitment 
to the Director to maintain your capacity utilization rate below 15 
percent for the duration of the permit, you may base your capacity 
utilization rate determination on that commitment.
    In determining compliance with any requirements to reduce 
impingement mortality or entrainment, you must assess the total 
reduction in impingement mortality and entrainment against the 
calculation baseline developed under the Impingement Mortality and 
Entrainment Characterization Study (Sec.  125.95(b)(3)). The 
calculation baseline is defined at Sec.  125.93 as an estimate of 
impingement mortality and entrainment that would occur at your site 
assuming (1) The cooling water intake system has been designed as a 
once-through system; (2) the opening of the cooling water intake 
structure is located at, and the face of the standard \3/8\-inch mesh 
traveling screen is oriented parallel to, the shoreline near the 
surface of the source waterbody; and (3) the baseline practices, 
procedures, and structural configuration are those that the facility 
would maintain in the absence of any structural or operational 
controls, including flow or velocity reductions, implemented in whole 
or in part for the purposes of reducing impingement mortality and 
entrainment. You may also choose to use your facility's current level 
of impingement mortality and entrainment as the calculation baseline. 
EPA has previously referred to this as the ``as-built approach.'' 
Reductions in impingement mortality and entrainment

[[Page 41637]]

from the calculation baseline as a result of any design and 
construction technologies and/or operational measures already 
implemented at your facility should be added to the reductions expected 
to be achieved by any additional design and construction technologies 
and operational measures that will be implemented in order to meet the 
applicable performance standards (Sec.  125.95(b)(4)(i)(C)). In this 
case, the calculation baseline could be estimated by evaluating 
existing data from a facility nearby without impingement and/or 
entrainment control technology (if relevant) or by evaluating the 
abundance of organisms in the source waterbody in the vicinity of the 
intake structure that may be susceptible to impingement and/or 
entrainment. Additionally, if a portion of the total design intake flow 
is water withdrawn for a closed-cycle, recirculating cooling system 
(but flow is not sufficiently reduced to satisfy the compliance option 
in Sec.  125.94(a)(1)(i)), such facilities may use the reduction in 
impingement mortality and entrainment that is attributed to the 
reduction in flow in meeting the performance standards in Sec.  
125.94(b). The calculation baseline may be estimated using: historical 
impingement mortality and entrainment data from your facility or from 
another facility with comparable design, operational, and environmental 
conditions; current biological data collected in the waterbody in the 
vicinity of your cooling water intake structure; or current impingement 
mortality and entrainment data collected at your facility. A facility 
may request that the calculation baseline be modified to be based on a 
location of the opening of the cooling water intake structure at a 
depth other than at or near the surface if they can demonstrate to the 
Director that the other depth would correspond to a higher baseline 
level of impingement mortality and/or entrainment.
    The Technology Installation and Operation Plan is required for all 
facilities that choose the compliance alternative in Sec.  
125.94(a)(2), (3), (4), or (5), propose to use design and construction 
technologies and/or operational measures (either existing or new) to 
meet performance standards or site specific requirements. Such 
facilities must submit the following information to the Director for 
review and approval: (1) A schedule for the installation and 
maintenance of any new design and construction technologies; (2) a list 
of the operational parameters that will be monitored, including the 
location and the frequency at which you will monitor them; (3) a list 
of activities you will undertake to ensure to the degree practicable 
the efficacy of the installed design and construction technologies and 
operational measures, and the schedule for implementing them; (4) a 
schedule and methodology for assessing the efficacy of any installed 
design and construction technologies and operational measures in 
achieving applicable performance standards, including an adaptive 
management plan for revising design and construction technologies and/
or operational technologies if your assessment indicates that 
applicable performance standards are not being met; and (5) for 
facilities that select a pre-approved technology in accordance with 
Sec.  125.94(a)(4), documentation that appropriate site conditions (as 
specified by EPA or the Director in accordance with Sec.  125.99) exist 
at your facility. In developing the schedule for installation and 
maintenance of any new design and construction technologies in item 1, 
you should schedule any downtime to coincide with otherwise necessary 
downtime (e.g., for repair, overhaul, or routine maintenance of the 
generating units) to the extent practicable. Where additional downtime 
is required, you may coordinate scheduling of this downtime with the 
North American Electric Reliability Council and/or other generators in 
your area to ensure that impacts to energy reliability and supply are 
minimized. The Director should approve any reasonable scheduling 
provision included for this purpose. Those facilities that propose to 
use restoration measures must submit the Restoration Plan required at 
Sec.  125.95(b)(5).
    Today's final rule requires the Director to evaluate, using 
information submitted in your application, bi-annual status reports, 
and any other available information, the performance of any 
technologies, operational measures, and/or restoration measures you may 
have implemented in previous permit terms. Additional or different 
design and construction technologies, operational measures, and/or 
restoration measures may be required if the Director determines that 
the initial technologies, operational measures, and/or restoration 
measures you selected and implemented will not meet the requirements of 
Sec.  125.94(b) and (c), as provided in Sec.  125.98(b)(1)(i). The rule 
also requires that your permit contain a condition requiring your 
facility to reduce impingement mortality and entrainment commensurate 
with the efficacy of the installed design and construction technologies 
and/or operational measures. This is designed to ensure that 
technologies are operated and maintained to ensure their efficacy to 
the degree practicable, and not merely to meet the low end of the 
applicable performance standard range, if better performance is 
practicable. The Technology Installation and Operation Plan is one of 
the most important pieces of documentation for implementing the 
requirements of this final rule. It serves to (1) guide facilities in 
the installation, operation, maintenance, monitoring, and adaptive 
management of selected design and construction technologies and/or 
operational measures; (2) provide a schedule and methodology for 
assessing success in meeting applicable performance standards and site-
specific requirements; and (3) provide a basis for determining 
compliance with the requirements of Sec.  125.94(a)(2)-(5). Facilities 
and Directors are encouraged to take appropriate care in developing, 
reviewing and approving the plan. Note that for facilities employing 
restoration measures, the Restoration Plan serves the same required 
functions.
e. Restoration Plan (Sec.  125.95(b)(5))
    EPA views restoration measures as part of the ``design'' of a 
cooling water intake structure, and considers restoration measures one 
of several technologies that may be employed, in combination with 
others, to minimize adverse environmental impact. The consideration of 
restoration measures is relevant to the section 316(b) determination of 
the requisite design of cooling water intake structures because 
restoration measures help minimize the adverse environmental impact 
attributable to such structures. Facilities may use restoration 
measures that produce and/or result in levels of fish and shellfish in 
the facility's waterbody or watershed that are substantially similar to 
those that would result through compliance with the applicable 
performance standards or alternative site-specific requirements. In 
order to employ restoration measures, the facility must demonstrate to 
the Director that it has evaluated the use of design and construction 
technologies and/or operational measures and determined that the use of 
restoration measures is appropriate because meeting the applicable 
performance standards or site-specific requirements through the use of 
design and construction technologies and/or operational measures alone 
is less feasible, less cost-effective or less environmentally 
desireable than meeting the standards in whole or in part through the 
use of restoration measures. Facilities must

[[Page 41638]]

also demonstrate to the Director that the restoration measures, alone 
or in combination with any feasible design and construction 
technologies and/or restoration measures, will produce ecological 
benefits and maintain fish and shellfish in the waterbody, including 
community structure and function, at a substantially similar level to 
that which would be achieved by meeting the applicable performance 
standards at Sec.  125.94(b) or the site-specific requirements 
developed pursuant to Sec.  125.94(a)(5). The Director must approve any 
use of restoration measures.
    To help all parties review the proposed or existing restoration 
measures and to help ensure adequate performance of those measures, 
Sec.  125.95(b)(5) requires facilities proposing to use restoration 
measures to submit a Restoration Plan with their applications to the 
Director for review and approval. In the submittal, the facility must 
address species identified, in consultation with Federal, State, and 
Tribal fish and wildlife management agencies with responsibility for 
fisheries and wildlife potentially affected by its the facility's 
cooling water intake structures, as species of concern. The level of 
complexity of the Restoration Plan likely will be commensurate with the 
restoration measures considered or proposed.
    First, the facility must demonstrate that it has evaluated the use 
of design and construction technologies and/or operational measures and 
explain how it determined that the use of restoration measures would be 
more feasible, cost-effective, or environmentally desirable than 
meeting the applicable performance standards or site-specific 
requirements wholly through the use of design and construction 
technologies, and/or operational measures.
    Second, the facility must submit a narrative description of the 
design and operation of all restoration measures the facility has in 
place or has selected and proposes to implement to produce fish and 
shellfish. If the ecological benefits from an existing restoration 
project are required to compensate for some environmental impact other 
than the impact from impingement and entrainment by the cooling water 
intake structure (e.g., a wetland created to satisfy section 404 of the 
Clean Water Act requirements), those ecological benefits should not be 
counted towards meeting the applicable performance standards or site-
specific requirements. The narrative description should identify the 
species targeted under any restoration measures.
    Third, the facility must submit a quantification of the ecological 
benefits of the existing and/or proposed restoration measures. The 
facility must estimate the reduction in fish and shellfish impingement 
mortality and entrainment that would be necessary to comply with 
applicable performance standards or site-specific requirements, using 
information from the Impingement Mortality and Entrainment 
Characterization Study and any other available and appropriate 
information. The facility must then calculate the production of fish 
and shellfish from existing and proposed restoration measures. The 
quantification must also include a discussion of the nature and 
magnitude of uncertainty associated with the performance of the 
restoration measures and a discussion of the time frame within which 
ecological benefits are expected to accrue from the restoration 
project.
    Fourth, the facility must provide design calculations, drawings, 
and estimates documenting that the proposed restoration measures, in 
combination with design and construction technologies and/or 
operational measures, or alone, will meet the requirements for 
production of fish and shellfish. Production of fish and shellfish as a 
result of relevant restoration measures already implemented at the 
facility should be added to the production expected to be achieved by 
the additional restoration measures. If the restoration measures 
address the same fish and shellfish species identified in the 
Impingement Mortality and Entrainment Characterization Study (in-kind 
restoration), the facility must demonstrate that the restoration 
measures will produce a level of these fish and shellfish substantially 
similar to that which would result from meeting applicable performance 
standards or site-specific requirements. In this case, the calculations 
should include a site-specific evaluation of the suitability of the 
restoration measures based on the species that are found at the site. 
If the restoration measures address fish and shellfish species 
different from those identified in the Impingement Mortality and 
Entrainment Characterization Study (out-of-kind restoration), the 
facility must demonstrate that the restoration measures produce 
ecological benefits substantially similar to or greater than those that 
would be realized through in-kind restoration. Such a demonstration 
should be based on a watershed approach to restoration planning and 
consider applicable multi-agency watershed restoration plans, site-
specific peer-reviewed ecological studies, and/or consultation with 
appropriate Federal, State, and Tribal natural resource agencies. While 
both in-kind and out-of-kind restoration require a quantification of 
the levels of fish and shellfish the restoration measures are expected 
to produce, out-of-kind restoration may include a qualitative 
demonstration that these ecological benefits are substantially similar 
to or greater than those that would be realized through in-kind 
restoration, because different species are being produced that may not 
be directly comparable to those identified in the Impingement Mortality 
and/or Entrainment Characterization Study.
    Fifth, the facility must submit a plan utilizing an adaptive 
management method for implementing, maintaining, and demonstrating the 
efficacy of the restoration measures it has selected and for 
determining the extent to which restoration measures, or the 
restoration measures in combination with design and construction 
technologies and operational measures, have met the applicable 
performance standards or site-specific requirements. Adaptive 
management is a process in which a facility chooses an approach for 
meeting a project goal, monitors the effectiveness of that approach, 
and then, based on monitoring and any other available information, 
makes any adjustments necessary to ensure continued progress toward the 
project's goal. This cycle is repeated as necessary until the goal is 
met.
    The adaptive management plan must include (1) A monitoring plan 
that includes a list of the restoration parameters that the facility 
will monitor, the frequency at which they will be monitored, and the 
success criteria for each parameter; (2) a list of activities the 
facility will undertake to ensure the efficacy of the restoration 
measures, a description of the linkages between these activities and 
the items described in the monitoring plan, and an implementation 
schedule for the activities; and (3) a process for revising the 
restoration plan as new information, including monitoring data, becomes 
available, and if the applicable performance standards or site-specific 
requirements are not being met.
    Sixth, the facility must submit a summary of any past or ongoing 
consultation with Federal, State, and Tribal fish and wildlife 
management agencies on its use of restoration measures, including any 
written comments received as a result of such consultations.
    Seventh, if requested by the Director, the facility must conduct a 
peer review

[[Page 41639]]

of items to be submitted as part of the Restoration Plan. Written 
comments from peer reviewers must be submitted to the Director and made 
available to the public as part of the permit application. Peer 
reviewers must be selected in consultation with the Director who may 
consult with EPA, Federal, State and Tribal fish and wildlife 
management agencies with responsibility for fish and wildlife 
potentially affected by the facility's cooling water intake 
structure(s). Peer reviewers must have appropriate qualifications 
(e.g., in the fields of geology, engineering and/or biology) depending 
upon the materials to be reviewed.
    Finally, the facility must include in the Plan a description of 
information to be included in a status report to the Director every two 
years. The final regulations at Sec.  125.98(b)(1)(ii) require that 
this information be reviewed by the Director to determine whether the 
proposed restoration measures, in conjunction with (or in lieu of) 
design and construction technologies and/or operational measures, will 
meet the applicable performance standards or site-specific 
requirements, or, if the restoration is out-of-kind, will produce 
ecological benefits (fish and shellfish) including maintenance or 
protection of community structure and function in your facility's 
waterbody or watershed.
f. Compliance Using a Pre-approved Technology (Sec.  125.94(a)(4))
    If you choose to comply with the fourth compliance alternative, you 
must submit documentation to the Director that your facility meets the 
appropriate site conditions and you have installed and will properly 
operate and maintain submerged cylindrical wedgewire screen technology 
(as described in Sec.  125.99(a)(1)) or other technologies as approved 
by the Director under Sec.  125.99(b)). If you are subject to 
impingement mortality performance standards only, and plan to install 
wedgewire screens with a maximum through-screen design intake velocity 
of 0.5 ft/s or less, you should choose the compliance alternative in 
Sec.  125.94(a)(1)(i), and do not need to demonstrate that you meet the 
other criteria in Sec.  125.99(a)(1) or prepare a Technology 
Installation and Operation Plan or Verification Monitoring Plan.
    Facilities subject to entrainment performance standards seeking 
compliance under this alternative must submit a Technology Installation 
and Operation Plan and a Verification Monitoring Plan that address 
entrainment reduction, and document that all of the appropriate site 
conditions in Sec.  125.99(a)(1) exist at their facility. To qualify 
for compliance using the cylindrical wedgewire screen technology, your 
facility must meet the following conditions: (1) Your cooling water 
intake structure is located in a freshwater river or stream; (2) your 
cooling water intake structure is situated such that sufficient ambient 
counter-currents exist to promote cleaning of the screen face; (3) your 
maximum through-screen design intake velocity is 0.5 ft/s or less; (4) 
the slot size is appropriate for the size of eggs, larvae, and 
juveniles of all fish and shellfish to be protected at the site; and 
(5) your entire main condenser cooling water flow is directed through 
the technology. Note that small flows totalling less than 2 MGD for 
auxiliary plant cooling do not necessarily have to be included. 
Facilities should demonstrate that they meet these criteria in the 
Technology Installation and Operation Plan.
    In addition, any interested person may submit a request that a 
technology be approved for use in accordance with the compliance 
alternative in Sec.  125.94(a)(4). If the Director approves, the 
technology may be used by all facilities that have similar site 
conditions under the Director's jurisdiction. To do this, the 
interested person must submit the following as required by Sec.  
125.99(b): (1) A detailed description of the technology; (2) a list of 
design criteria for the technology and site characteristics and 
conditions that each facility must have in order to ensure that the 
technology can consistently meet the appropriate impingement mortality 
and entrainment performance standards in Sec.  125.94(b); and (3) 
information and data sufficient to demonstrate that all facilities 
under the jurisdiction of the Director can meet the applicable 
impingement mortality and entrainment performance standards in Sec.  
125.94(b) if the applicable design criteria and site characteristics 
and conditions are present at the facility.
    EPA has adopted this compliance alternative in response to comments 
suggesting that EPA provide an additional, more streamlined compliance 
option under which a facility could implement certain specified 
technologies that are deemed highly protective in exchange for reducing 
the scope of the Comprehensive Demonstration Study. (See, 68 FR 13522, 
13539; March 19, 2003).
g. Verification Monitoring Plan (Sec.  125.95(b)(7))
    Finally, Sec.  125.95(b)(7) requires all Phase II existing 
facilities complying under Sec. Sec.  125.94(a)(2), (3), (4), or (5) 
using design and construction technologies and/or operational measures, 
to submit a Verification Monitoring Plan to measure the efficacy of the 
implemented design and construction technologies and/or operational 
measures. The plan must include at least two years of monitoring to 
verify the full-scale performance of the proposed or already 
implemented design and construction technologies and/or operational 
measures. Note that verification monitoring is also required for 
restoration measures but the requirements for this monitoring are 
included as part of the Restoration Plan in Sec.  125.95(b)(5)(v). 
Components of the Verification Monitoring Plan must include:
    (i) Description of the frequency and duration of monitoring, the 
parameters to be monitored, and the basis for determining the 
parameters and the frequency and duration of monitoring. The parameters 
selected and the duration and frequency of monitoring must be 
consistent with any methodology for assessing success in meeting 
applicable performance standards in your Technology Installation and 
Operation Plan as required by Sec.  125.95(b)(4)(ii);
    (ii) A proposal on how naturally moribund fish and shellfish that 
enter the cooling water intake structure would be identified and taken 
into account in assessing success in meeting the performance standards 
in Sec.  125.94(b); and,
    (iii) A description of the information to be included in a bi-
annual status report to the Director.
    The facility and the Director will use the results of verification 
monitoring to assess the facility's success in meeting the performance 
standards for impingement mortality and entrainment reduction or 
alternate site-specific requirements and to guide adaptive management 
in accordance with the requirements in the facility's Technology 
Installation and Operation Plan. Restoration monitoring is discussed 
separately under Sec.  125.95(b)(5)(v). Verification monitoring is 
required to begin once the technologies and/or operational measures are 
implemented and continue for a sufficient period of time (but at least 
two years) to assess success in reducing impingement mortality and 
entrainment.

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

    Initially, the Director must determine whether the facility is 
covered by this rule. If the answer to all the following

[[Page 41640]]

questions is yes, the facility will be required to comply with the 
requirements of this final rule (Sec.  125.91).
     Is the facility a point source?
     Does the facility use or propose to use a cooling water 
intake structure(s) with a total design intake flow of 50 million 
gallons per day (MGD) or more to withdraw cooling water from waters of 
the United States?
     As its primary activity, does the facility both generate 
and transmit electric power or generate electric power but sell it to 
another entity for transmission?
     Is at least 25 percent of the water withdrawn used solely 
for cooling purposes?
    In the case of a Phase II existing facility that is co-located with 
a manufacturing facility, only that portion of the cooling water intake 
flow that is used by the Phase II facility to generate electricity for 
sale to another entity will be considered for purposes of determining 
the 50 MGD and 25 percent criteria.
    Use of a cooling water intake structure includes obtaining cooling 
water by any sort of contract or arrangement with one or more 
independent suppliers of cooling water if the supplier withdraws water 
from waters of the United States (except as provided below) but is not 
itself a Phase II existing facility. This provision is intended to 
prevent circumvention of these requirements by creating arrangements to 
receive cooling water from an entity that is not itself a Phase II 
existing facility. However, for purposes of this provision, a public 
water system or any entity that sells treated effluent to be used as 
cooling water is not a ``supplier.'' Thus, obtaining cooling water from 
a public water system or treated effluent used as cooling water does 
not constitute use of a cooling water intake structure. This rule is 
not intended to discourage the beneficial reuse of treated effluent, 
nor is it intended to impose requirements on public water systems.
Permit Application Review
    The Director must review the application materials submitted under 
Sec.  122.21(r) and Sec.  125.95 and determine the appropriate 
performance standards to apply to the facility and approve a set of 
design and construction technologies, operational measures, and/or 
restoration measures to meet these standards. The first step is to 
review the Proposal for Information Collection and determine if the 
technologies, operational measures, and/or restoration measures to be 
evaluated seem appropriate for the site and if the data gathering 
activities (including the sampling plan) seem adequate to support the 
development of the other components of the Comprehensive Demonstration 
Study, including impingement mortality and entrainment estimates. The 
Director will also review any existing data submitted. The Director 
must review and provide comment on the Proposal for Information 
Collection; however, a facility may proceed with planning, assessment, 
and data collection activities in fulfillment of Comprehensive 
Demonstration Study requirements prior to receiving comments from the 
Director. The Director is encouraged to provide comments expeditiously 
(i.e., within 60 days) so the facility can make responsive 
modifications to its information collection plans.
    If a facility submits a request in accordance with Sec.  
125.95(a)(3) to reduce information about its cooling water intake 
structures and the source waterbody required to be submitted in its 
permit application (other than for the first permit term after 
promulgation of this rule, for which complete information is required), 
the Director must approve the request within 60 days if conditions at 
the facility and in the waterbody remain substantially unchanged since 
the facility's previous application.
    The Director must also review all information submitted under Sec.  
122.21(r)(2), (3), and (5) and Sec.  125.95, as appropriate, to 
determine appropriate permit conditions based on the requirements in 
this subpart. At each permit renewal, or more frequently as 
appropriate, the Director must assess success in meeting applicable 
performance standards, restoration requirements, and/or alternate site-
specific requirements.
    At each permit renewal, the Director must review the application 
materials and monitoring data to determine whether additional 
requirements should be included in the permit to meet the applicable 
performance standards. Additional requirements may include, but are not 
limited to, additional design and construction technologies, 
operational measures, and/or restoration measures, improved operation 
and maintenance of existing technologies and measures, and/or increased 
monitoring.
Permitting Requirements
    Following consideration of the information submitted by the Phase 
II existing facility in its NPDES permit application, the Director must 
determine the appropriate requirements and conditions to include in the 
permit based on the compliance alternatives in Sec.  125.94(a) for 
establishing best technology available chosen by the facility. The 
following requirements must be included in each permit:
    (1) Cooling Water Intake Structure Requirements. Requirements that 
implement the applicable provisions of Sec.  125.94 must be included in 
the permit conditions. To accomplish this, the Director must evaluate 
the performance of the design and construction technologies, 
operational measures, and/or restoration measures proposed and 
implemented by the facility and require additional or different design 
and construction technologies, operational measure, and/or restoration 
measures, and/or improved operation and maintenance of existing 
technologies and measures, if needed to meet the applicable impingement 
mortality and entrainment performance standards, restoration 
requirements for fish and shellfish production, or alternate site-
specific requirements.
    In determining compliance with the performance standards for 
facilities proposing to increase withdrawals of cooling water from a 
lake (other than a Great Lake) or a reservoir in Sec.  125.94(b)(3), 
the Director must consider anthropogenic factors (those not considered 
``natural'') unrelated to the Phase II existing facility's cooling 
water intake structures that can influence the occurrence and location 
of a thermocline. Anthropogenic factors may include source water 
inflows, other water withdrawals, managed water uses, wastewater 
discharges, and flow/level management practices (e.g., some reservoirs 
release water from deeper bottom layers). The Director must coordinate 
with appropriate Federal, State, or Tribal fish and wildlife agencies 
to determine if any disruption of the natural thermal stratification 
resulting from the increased withdrawal of cooling water does not 
adversely affect the management of fisheries.
    To develop appropriate requirements for the cooling water intake 
structure(s), the Director must do the following:
    (i) Review and approve the Design and Construction Technology Plan 
required in Sec.  125.95(b)(4) to evaluate the suitability and 
feasibility of the design and construction technology and/or 
operational measures proposed to meet the performance standards of 
Sec.  125.94(b), or site-specific requirements developed pursuant to 
Sec.  125.94(a)(5);
    (ii) If the facility proposes restoration measures in accordance 
with Sec.  125.94(c), review and approve the Restoration Plan required 
under Sec.  125.95(b)(5) to determine whether the proposed measures, 
alone or in

[[Page 41641]]

combination with design and construction technologies and/or 
operational measures, will meet the requirements under Sec.  125.94(c);
    (iii) In each reissued permit, include a condition in the permit 
requiring the facility to reduce impingement mortality and entrainment 
(or to increase fish and shellfish production, if applicable) 
commensurate with the efficacy at the facility of the installed design 
and construction technologies, operational measures, and/or restoration 
measures;
    (iv) If the facility implements design and construction 
technologies and/or operational measures and requests that compliance 
with the requirements of Sec.  125.94 be measured for the first permit 
(or subsequent permit terms, if applicable) employing the Technology 
Installation and Operation Plan in accordance with Sec.  
125.95(b)(4)(ii), the Director must review and approve the plan and 
require the facility to meet the terms of the plan including any 
revisions to the plan that may be necessary if applicable performance 
standards or site-specific requirements are not being met. If the 
facility implements restorations measures and requests that compliance 
with the requirements in Sec.  125.94 be measured for the first permit 
term (or subsequent permit terms, if applicable) employing a 
Restoration Plan in accordance with Sec.  125.95(b)(5), the Director 
must review and approve the plan and require the facility to meet the 
terms of the plan including any revision to the plan that may be 
necessary if applicable performance standards or site-specific 
requirements are not being met. In determining whether to approve a 
Technology Installation and Operation Plan or Restoration Plan, the 
Director must evaluate whether the design and construction 
technologies, operational measures, and/or restoration measures the 
facility has installed, or proposes to install, can reasonably be 
expected to meet the applicable performance standards in Sec.  
125.94(b), restoration requirements in Sec.  125.94(c)(2), and/or 
alternative site-specific requirements established pursuant to Sec.  
125.94(a)(5), and whether the Technology Installation and Operation 
Plan and/or Restoration Plan complies with the applicable requirements 
of Sec.  125.95(b). In reviewing the Technology Installation and 
Operation Plan, the Director must approve any reasonable scheduling 
provisions that are designed to ensure that impacts to energy 
reliability and supply are minimized, in accordance with Sec.  
125.95(b)(4)(ii)(A). If the facility does not request that compliance 
with the requirements in Sec.  125.94 be measured employing a 
Technology Installation and Operation Plan and/or Restoration Plan, or 
the facility has not been in compliance with the terms of its current 
Technology Installation and Operation Plan and/or Restoration Plan 
during the preceding permit term, the Director must require the 
facility to comply with the applicable performance standards in Sec.  
125.94(b), restoration requirement in Sec.  125.94(c)(2), and/or 
alternative site-specific requirements developed pursuant to Sec.  
125.94(a)(5). In considering a permit application, the Director must 
review the performance of the design and construction technologies, 
operational measures, and/or restoration measures implemented and 
require additional or different design and construction technologies, 
operational measures, and/or restoration measures, and/or improved 
operation and maintenance of existing technologies and measures, if 
needed to meet the applicable performance standards, restoration 
requirements, and/or alternative site-specific requirements.
    (v) Review and approve the proposed Verification Monitoring Plan 
submitted under Sec.  125.95(b)(7) (for design and construction 
technologies) and/or monitoring provisions of the Restoration Plan 
submitted under Sec.  125.95(b)(5)(v) and require that the monitoring 
continue for a sufficient period of time to demonstrate whether the 
design and construction technology, operational measures, and/or 
restoration measures meet the applicable performance standards in Sec.  
125.94(b), restoration requirements in Sec.  125.94(c)(2) and/or site-
specific requirements established pursuant to Sec.  125.94(a)(5);
    (vi) If a facility requests requirements based on a site-specific 
determination of best technology available for minimizing adverse 
environmental impact, the Director must review the application 
materials submitted under Sec.  125.95(b)(6) and any other information 
submitted, including quantitative and qualitative benefits, that would 
be relevant to a determination of whether alternative requirements are 
appropriate for the facility. If a facility submits a study to support 
entrainment survival at the facility, the Director must review and 
approve the results of that study. If the Director determines that 
alternative requirements are appropriate, the Director must make a 
site-specific determination of best technology available for minimizing 
adverse environmental impact in accordance with Sec.  125.94(a)(5). The 
Director may request revisions to the information submitted by the 
facility in accordance with Sec.  125.95(b)(6) if it does not provide 
an adequate basis to make this determination. Any site-specific 
requirements established based on new and/or existing design and 
construction technologies, operational measures, and/or restoration 
measures, must achieve an efficacy that is, in the Director's 
judgement, as close as practicable to the applicable performance 
standards without resulting in costs that are significantly greater 
than the costs considered by the Administrator for a like facility to 
achieve the applicable performance standards or the benefits of 
complying with the applicable performance standards in Sec.  125.94(b);
    (vii) The Director must review information on the proposed methods 
for assessing success in meeting applicable performance standards and/
or restoration requirements submitted by the facility under Sec.  
125.95(b)(4)(ii)(D) and/or (b)(5)(v)(A), evaluate those and other 
available methods, and specify how success in meeting the performance 
standards and/or restoration requirements must be determined including 
the averaging period for determining the percent reduction in 
impingement mortality and entrainment and/or the production of fish and 
shellfish. Compliance for facilities who request that compliance be 
measured employing a Technology Installation and Operation Plan and/or 
Restoration Plan must be determined in accordance with Sec.  
125.98(b)(1)(iv).
    (2) Monitoring Conditions. The Director must require the facility 
to perform monitoring in accordance with the Technology Installation 
and Operation Plan in Sec.  125.95(b)(4)(ii), the Restoration Plan 
required by Sec.  125.95(b)(5), if applicable, and the Verification 
Monitoring Plan required by Sec.  125.95(b)(7). In determining any 
additional applicable monitoring requirements in accordance with Sec.  
125.96, the Director must consider the monitoring facility's 
Verification Monitoring, Technology Installation and Operation, and/or 
Restoration Plans, as appropriate. The Director may modify the 
monitoring program based on changes in physical or biological 
conditions in the vicinity of the cooling water intake structure.
    (3) Record Keeping and Reporting. At a minimum, the permit must 
require the facility to report and keep records specified in Sec.  
125.97.
    (4) Pre-Approved Design and Construction Technologies. Section 
125.94(a)(4) offers facilities the choice of adopting a protective, 
pre-approved design and construction technology, and preparing a 
significantly streamlined Comprehensive Demonstration Study. Section 
125.99 lists one pre-approved

[[Page 41642]]

technology (wedgewire screens) and provides an opportunity for the 
Director to pre-approve other technologies.
    For a facility that chooses to demonstrate that they have installed 
and properly operate and maintain a design and construction technology 
approved in accordance with Sec.  125.99, the Director must review and 
approve the information submitted in the Technology Installation and 
Operation Plan in Sec.  125.95(b)(4)(ii) and determine if they meet the 
criteria in Sec.  125.99.
    If a person/facility requests approval of a technology under Sec.  
125.99(b), the Director must review and approve the information 
submitted and determine its suitability for widespread use at 
facilities with similar site conditions in its jurisdiction with 
minimal study. The Director must evaluate the adequacy of the 
technology when installed in accordance with the required design 
criteria and site conditions to consistently meet the performance 
standards in Sec.  125.94(b). The Director may only approve a 
technology following public notice and consideration of comment 
regarding such approval.
    (5) Bi-Annual Status Report. The Director must specify monitoring 
data and other information to be included in a status report every two 
years. The other information may include operation and maintenance 
records, summaries of adaptive management activities, or any other 
information that is relevant to determining compliance with the terms 
of the facility's Technology Installation and Operation Plan and/or 
Restoration Plan.

D. What Will I Be Required To Monitor?

    Section 125.96 of today's final rule provides that Phase II 
existing facilities must perform monitoring in accordance with the 
Verification Monitoring Plan required by Sec.  125.95(b)(7), the 
Technology Installation and Operation Plan required by Sec.  
125.95(b)(4)(ii), if applicable, the Restoration Plan required by Sec.  
125.95(b)(5), and any additional monitoring specified by the Director 
to demonstrate compliance with the applicable requirements of Sec.  
125.94. In developing monitoring conditions, the Director should 
consider the need for biological monitoring data, including impingement 
and entrainment sampling data sufficient to assess the presence, 
abundance, life stages (including eggs, larvae, juveniles, and adults), 
and mortality of aquatic organisms (fish and shellfish or other 
organisms required to be monitored by the Director) impinged or 
entrained during operation of the cooling water intake structure. This 
type of data may be used to develop permit conditions to implement the 
requirements of this rule. The Director should ensure, where 
appropriate, that any required monitoring will allow for the detection 
of any annual, seasonal, and diel variations in the species and numbers 
of individuals that are impinged or entrained.
    The Director may modify the monitoring program based on changes in 
physical or biological conditions in the vicinity of the cooling water 
intake structure. The Director may also require monitoring of 
operational parameters for facilities that employ a Technology 
Installation and Operation Plan or Restoration Plan to comply with the 
requirements of Sec.  125.94. The Director must specify what monitoring 
or other data is to be included in a status report every two years.

E. How Will Compliance Be Determined?

    This final rule will be implemented by the Director placing 
conditions consistent with the requirements of this part in NPDES 
permits. A facility may demonstrate compliance by meeting the 
performance standards in Sec.  125.94(b) applicable to the facility. 
The application information, including components of the Comprehensive 
Demonstration Study, as appropriate, should demonstrate that the 
facility is already meeting the performance standards, or that it will 
install and properly operate and maintain design and construction 
technologies, operational measures, and/or restoration measures to meet 
the performance standards, or that a site-specific determination of 
best technology available is necessary. To support this demonstration, 
the facility should submit the following information to the Director:
     Data submitted with the NPDES permit application to show 
that the facility meets location, design, construction, and capacity 
requirements consistent with the compliance alternative selected;
     Data to demonstrate that the facility is meeting the 
performance standards consistent with the compliance alternative 
selected;
     Compliance monitoring data and records as prescribed by 
the Director.
    The specifics of how success in meeting the performance standards 
shall be measured (i.e, the number of species, whether critical species 
or all species) and the method of measurement (e.g., total biomass, 
total counts, etc.) must be determined by the Director based on review 
of the proposed methodology submitted by the facility in its Technology 
Installation and Operation Plan and/or Restoration Plan, and any other 
methods the Director considers appropriate.
    Alternatively, the facility may request that compliance be 
determined based on whether it has complied with the construction, 
operational, maintenance, monitoring, and adaptive management 
requirements of its Technology Installation and Operation Plan (for 
design and construction technologies and/or operational measures) or 
Restoration Plan (for restoration measures). In this case, the facility 
must still assess success in meeting applicable performance standards 
or restoration requirements but this assessment serves to guide the 
adaptive management process rather than as a basis for determining 
compliance. After the first permit term following promulgation of this 
subpart, facilities are only eligible for this compliance determination 
alternative if they have been in compliance with the terms of their 
Technology Installation and Operation Plan and/or Restoration Plan 
during the preceding permit term. Under this compliance determination 
alternative, the Technology Installation and Operation Plan or 
Restoration Plan must specify construction, operational, maintenance, 
monitoring, and adaptive management requirements that can reasonably be 
expected to achieve success in meeting the applicable performance 
standards, restoration requirements and/or site-specific requirements. 
These construction, operational, maintenance, monitoring, and adaptive 
management requirements must also be approved by the Director, who will 
also specify what monitoring data and other information must be 
included in the facility's biannual status report.
    The required elements of the Technology Installation and Operation 
Plan include (1) a schedule for installation and maintenance of any new 
technologies; (2) operational parameters to be monitored; (3) 
activities to ensure the efficacy of technologies and measures; (4) a 
schedule and methodology for assessing the efficacy of installed 
technologies and measures in meeting the performance standards; (5) an 
adaptive management plan; and (6) for facilities using a pre-approved 
compliance technology, documentation that they meet the conditions for 
its use. The Restoration Plan requires corresponding information as 
appropriate for restoration measures.
    EPA believes that it is important for facilities to consider and 
document each of the components of the Technology

[[Page 41643]]

Installation and Operation Plan, regardless of which compliance 
determination approach is used. However, the level of detail 
appropriate for some of the components may be different for the two 
different approaches. For facilities that comply by demonstrating 
success in meeting performance standards, particularly in cases where 
they are already meeting the standards and no significant changes in 
technologies or operations are needed, brief summaries may be 
sufficient for most components, though they will still need detailed 
documentation of their schedule and methodology for assessing efficacy 
of installed technologies and measures for meeting the standards. 
Conversely, for facilities where compliance is determined based on 
whether they have complied with the construction, operation, 
maintenance, monitoring, and adaptive management approaches required in 
the Technology Installation and Operation Plan or Restoration Plan, a 
fairly detailed specification of these requirements will be 
appropriate. The Director should ensure that the level of detail in the 
Technology Installation and Operation Plan or Restoration Plan is 
sufficient to support whichever compliance determination approach is 
selected.
    Section 125.97 requires existing facilities to keep records and 
report monitoring data and other information specified by the Director 
in a bi-annual status report although Directors may require more 
frequent reports. Facilities must also keep records of all data used to 
complete the permit application and show compliance with the 
requirements of Sec.  125.94, any supplemental information developed 
under Sec.  125.95, and any compliance monitoring data submitted under 
Sec.  125.96, for a period of at least three (3) years from date of 
permit issuance. The Director may require that these records be kept 
for a longer period.

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

    Today's final regulations amend 40 CFR 123.25(a)(36) to add a 
requirement that authorized State and Tribal programs have sufficient 
legal authority to implement today's requirements (40 CFR part 125, 
subpart J). Therefore, today's final rule affects authorized State and 
Tribal NPDES permit programs. Under 40 CFR 123.62(e), any existing 
approved section 402 permitting program must be revised to be 
consistent with new program requirements within one year from the date 
of promulgation, unless the NPDES-authorized State or Tribe must amend 
or enact a statute to make the required revisions. If a State or Tribe 
must amend or enact a statute to conform with today's final rule, the 
revision must be made within two years of promulgation. States and 
Tribes seeking new EPA authorization to implement the NPDES program 
must comply with the requirements when authorization is approved. This 
final regulation does not alter State authority under section 510 of 
the Clean Water Act.
    EPA recognizes that some States have invested considerable effort 
in developing and implementing section 316(b) regulatory programs. This 
final regulation allows States to use these programs to fulfill section 
316(b) requirements where the State demonstrates to the Administrator 
that such programs will achieve comparable environmental performance. 
Specifically, the final rule allows any State to demonstrate to the 
Administrator that it has adopted alternative regulatory requirements 
in its NPDES program that will result in environmental performance 
within each relevant watershed that is comparable to the reductions in 
impingement mortality and entrainment that would otherwise be achieved 
under Sec.  125.94.
    In addition to updating their programs to be consistent with 
today's final rule, States and Tribes authorized to implement the NPDES 
program are required under NPDES State program requirements to 
implement the cooling water intake structure requirements of subpart J 
following promulgation of the final regulations. The permit 
requirements in this final rule must be implemented upon the first 
issuance or reissuance of permits following promulgation.
    Duties of an authorized State or Tribe under this regulation may 
include:
     Review and verification of permit application materials, 
including a permit applicant's determination of source waterbody 
classification and the flow of a freshwater river or stream at the 
point of the intake;
     Determination of the performance standards in Sec.  
125.94(b) that apply to the facility;
     Verification of a permit applicant's determination of 
whether it meets or exceeds the applicable performance standards;
     Verification that a permit applicant's Technology and 
Compliance Assessment Information, including the Design and 
Construction Technology Plan and Technology Installation and Operation 
Plan, demonstrates that the proposed technologies and measures will 
reduce the impacts to fish and shellfish to levels required;
     Verification that a permit applicant is eligible for site-
specific requirements, and if so, development of site-specific 
requirements that achieve an efficacy as close as practicable to the 
applicable performance standards;
     Verification that the Technology Installation and 
Operation Plan can reasonably be expected to meet performance standards 
or alternative site-specific requirements;
     Verify that the facility meets the requirements of the 
approved compliance alternative it selected;
     Verify that any Restoration Plan meets all applicable 
requirements;
     Verify that the Verification Monitoring Plan is sufficient 
to assess technology efficacy;
     Development of draft and final NPDES permit conditions for 
the applicant implementing applicable section 316(b) requirements 
pursuant to this rule including whether compliance with the 
requirements of Sec.  125.94 will be determined based on success in 
meeting applicable performance standards or based on complying with a 
Technology Installation and Operation Plan or Restoration Plan; and,
     Ensuring compliance with permit conditions based on 
section 316(b) requirements.
    EPA will implement these requirements where States or Tribes are 
not authorized to implement the NPDES program. EPA also will implement 
these requirements where States or Tribes are authorized to implement 
the NPDES program but do not have sufficient authority to implement 
these requirements.

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

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

[[Page 41644]]

with these or other applicable Federal laws (e.g., Marine Mammal 
Protection Act, 16 U.S.C. 1361 et seq., and Migratory Bird Treaty Act, 
16 U.S.C. 703 et seq.).

H. Alternative Site-Specific Requirements

    Under Sec.  125.94(a)(5), an existing facility may demonstrate to 
the Director that it has selected, installed, and is properly operating 
and maintaining, or will install and properly operate and maintain, 
design and construction technologies, operational measures, and/or 
restoration measures that the Director determines to be the best 
technology available to minimize adverse environmental impact for the 
facility based on the cost-cost test specified in sub-section (a)(5)(i) 
or the cost-benefit test specified in (a)(5)(ii) of the rule.
    Section 125.94(a)(5)(i) provides that an existing facility may 
demonstrate that the costs of compliance under the compliance 
alternatives in Sec.  125.94(a)(2) through (4) of the rule would be 
significantly greater than the costs considered by the Administrator 
for a like facility in establishing the applicable performance 
standards. In such cases, the Director must make a site-specific 
determination of the best technology available for minimizing adverse 
environmental impact. The Director must establish site-specific 
alternative requirements based on new and/or existing design and 
construction technologies, operational measures, and/or restoration 
measures that achieve an efficacy that is, in the judgment of the 
Director, as close as practicable to the applicable performance 
standards in Sec.  125.94(b) of the rule.
    Section 125.94(a)(5)(ii) provides that an existing facility may 
demonstrate that the costs of compliance under alternatives in Sec.  
125.94(a)(2) through (4) of the rule would be significantly greater 
than the benefits of complying with the applicable performance 
standards at that facility. In such cases, the Director must make a 
site-specific determination of best technology available for minimizing 
adverse environmental impact. The Director must establish site-specific 
alternative requirements based on new and/or existing design and 
construction technologies, operational measures, and/or restoration 
measures that achieve an efficacy that, in the judgment of the 
Director, is as close as practicable to the applicable performance 
standards in Sec.  125.94(b) of the rule.
1. Facility's Costs Significantly Greater Than Costs Considered by EPA
    If the Director determines that data specific to your facility 
indicate that the costs of compliance under Sec.  125.94(a)(2) through 
(4) would be significantly greater than the costs considered by the 
Administrator for a facility like yours in establishing the applicable 
performance standards in Sec.  125.94(b) you may request a site-
specific determination of best technology available for minimizing 
adverse environmental impacts. A facility requesting this determination 
must submit a Comprehensive Cost Evaluation Study (Sec.  
125.94(b)(6)(i)) and a Site Specific Technology Plan (Sec.  
125.94(b)(6)(iii)). The Comprehensive Cost Evaluation Study must 
include engineering cost estimates in sufficient detail to document the 
costs of implementing design and construction technologies, operational 
measures, and/or restoration measures at the facility that would be 
needed to meet the applicable performance standards of Sec.  125.94(b); 
a demonstration that the documented costs significantly exceed the 
costs considered by EPA for a facility like yours in establishing the 
applicable performance standards; and engineering cost estimates in 
sufficient detail to document the costs of implementing alternative 
design and construction technologies, operational measures, and/or 
restoration measures in the facility's Site-Specific Technology Plan 
developed in accordance with Sec.  125.95(b)(6)(iii).
    To make the demonstration that compliance costs are significantly 
greater than those considered by EPA, the facility must first determine 
its actual compliance costs. To do this, the facility first should 
determine the costs for any new design and construction technologies, 
operational measures, and/or restoration measures that would be needed 
to comply with the requirements of Sec.  125.94(a)(2) through (4), 
which may include the following cost categories: The installed capital 
cost of the technologies or measures, the net operation and maintenance 
(O&M) costs for the technologies or measures (that is, the O&M costs 
for the final suite of technologies and measures once all new 
technologies and measures have been installed less the O&M costs of any 
existing technologies and measures), the net revenue losses (lost 
revenues minus saved variable costs) associated with net construction 
downtime (actual construction downtime minus that portion which would 
have been needed anyway for repair, overhaul or maintenance) and any 
pilot study costs associated with on-site verification and/or 
optimization of the technologies or measures. Costs should be 
annualized using a 7 percent discount rate, with an amortization period 
of 10 years for capital costs and 30 years for pilot study costs and 
construction downtime net revenue losses. Annualized costs should be 
converted to 2002 dollars ($2002), using the engineering news record 
construction cost index (see Engineering News-Record. New York: McGraw 
Hill. Annual average value is 6538 for year 2002). Costs for permitting 
and post-construction monitoring should not be included in this 
estimate, as these are not included in the EPA-estimated costs against 
which they will be compared, as described below. Because existing 
facilities already incur monitoring and permitting costs, and these are 
largely independent of the specific performance standards adopted and 
technologies selected to meet them, EPA believes it is both simpler and 
more appropriate to conduct the cost comparison required in this 
provision using direct compliance costs (capital, net O&M, net 
construction downtime, and pilot study) only. Adding permitting and 
monitoring costs to both sides of the comparison would complicate the 
methodology without substantially changing the results.
    To calculate the costs that the Administrator considered for a like 
facility in establishing the applicable performance standards, the 
facility must follow the steps laid out below, based on the information 
in the table provided in Appendix A: Costs considered by EPA in 
Establishing Performance Standards. A sample of the table is provided 
below (see sample table). Note that those facilities that claimed the 
flow data that they submitted to EPA, and which EPA used to calculate 
compliance costs, as confidential business information (CBI), are not 
listed in the table provided in Appendix A, unless the total calculated 
compliance costs were zero. If these facilities wish to request a site-
specific determination of best technology available based on 
significantly greater compliance costs, they will need to waive their 
claim of confidentiality prior to submitting the Comprehensive Cost 
Evaluation Study so that EPA can make the necessary data available to 
the facility, Director, and public.

[[Page 41645]]



                                                      Sample Table.--Costs Considered by EPA in Establishing Performance Standards ($2002)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                            Annualized
                                                                EPA                                           capital                                        Performance
                                                              assumed               Baseline      Post       \3\ + net   Net revenue             Annualized   standards       EPA       Design
                                                               design    Capital      O&M     construction   O&M using   losses from    Pilot     downtime     on which     modeled      flow
         Facility ID                     Intake ID             intake      cost      annual    O&M annual   EPA design       net        study     and pilot    EPA cost   technology  adjustment
                                                             flow, gpm                cost        cost        intake    construction    costs       study     estimates      code      slope (m)
                                                               (Xepa)                                        flow \2\     downtime                costs 2,4   are based                   \1\
                                                                                                              (yepa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Column 1                       Column 2....................   Column 3   Column 4   Column 5     Column 6     Column 7     Column 8    Column 9   Column 10   Column 11    Column 12   Column 13
------------------------------
Fac 1 ID                                                     .........  .........  .........  ............  ..........  ............  .........  ..........  ...........  ..........  ..........
Fac 2 ID                                                     .........  .........  .........  ............  ..........  ............  .........  ..........  ...........  ..........  ..........
Fac 3 ID \5\.................  Intake 1....................  .........  .........  .........  ............  ..........  ............  .........  ..........  ...........  ..........  ..........
Fac 3 ID \5\.................  Intake 2....................  .........  .........  .........  ............  ..........  ............  .........  ..........  ...........  ..........  ..........
Etc.                                                         .........  .........  .........  ............  ..........  ............  .........  ..........  ...........  ..........  ..........
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The design flow adjustment slope (m) represents the slope that corresponds to the particular facility using the technology in column 12.
\2\ Discount rate = 7%
\3\ Amortization period for capital costs = 10 years
\4\ Amortization period for downtime and pilot study costs = 30 years
\5\ Depending on the data provided, some facilities with multiple intakes were costed separately for each intake. In such cases, the facility should calculate the costs considered by EPA for
  each intake separately using the steps below and sum. Note that some cost components (e.g. construction downtime losses and pilot study costs) are assigned arbitrarily to one of the intakes,
  since it is difficult to determine how they would be assigned to each intake separately. Since the costs for multiple intakes are summed, this will not affect the results.


[[Page 41646]]

    The data in Appendix A is keyed to both a facility name and survey 
ID number. Facilities should be able to determine their ID number from 
the survey they submitted to EPA during the rule development process.
    Step 1: Determine which technology EPA modeled as the most 
appropriate compliance technology for your facility (Sec.  
125.94(a)(5)(i)(A)). To do this, use the code in column 12 of Appendix 
A to look up the modeled technology in Table 9-1 below.

              Table 9-1.--Technology Codes and Descriptions
------------------------------------------------------------------------
        Technology codes                  Technology description
------------------------------------------------------------------------
                1                 Addition of fish handling and return
                                   system to an existing traveling
                                   screen system.
                2                 Addition of fine-mesh screens to an
                                   existing traveling screen system.
                3                 Addition of a new, larger intake with
                                   fine-mesh and fish handling and
                                   return system in front of an existing
                                   intake system.
                4                 Addition of passive fine-mesh screen
                                   system (cylindrical wedgewire) near
                                   shoreline with mesh width of 1.75 mm.
                5                 Addition of a fish net barrier system.
                6                 Addition of an aquatic filter barrier
                                   system.
                7                 Relocation of an existing intake to a
                                   submerged offshore location with
                                   passive fine-mesh screen inlet with
                                   mesh width of 1.75 mm.
                8                 Addition of a velocity cap inlet to an
                                   existing offshore intake.
                9                 Addition of passive fine-mesh screen
                                   to an existing offshore intake with
                                   mesh width of 1.75 mm.
               10                 [Module 10 not used].
               11                 Addition of dual-entry, single-exit
                                   traveling screens (with fine-mesh) to
                                   a shoreline intake system.
               12                 Addition of passive fine-mesh screen
                                   system (cylindrical wedgewire) near
                                   shoreline with mesh width of 0.76 mm.
               13                 Addition of passive fine-mesh screen
                                   to an existing offshore intake with
                                   mesh width of 0.76 mm.
               14                 Relocation of an existing intake to a
                                   submerged offshore location with
                                   passive fine-mesh screen inlet with
                                   mesh width of 0.76 mm.
------------------------------------------------------------------------

    Step 2: Using EPA's costing equations, calculate the annualized 
capital and net operation and maintenance costs for a facility with 
your design flow using this technology (Sec.  125.94(a)(5)(i)(B)). To 
do this, you should use the following formula, which is derived from 
the results of EPA's costing equations for a facility like yours using 
the selected technology:
[GRAPHIC] [TIFF OMITTED] TR09JY04.001

Where:

yf = annualized capital and net O&M costs using actual 
facility design intake flow,
xf = actual facility design intake flow (in gallons per 
minute),
xepa = EPA assumed facility design intake flow (in gallons 
per minute) (column 3),
yepa = Annualized capital and net O&M costs using EPA design 
intake flow (column 7),and
m = design flow adjustment slope (column 13).

    Rather than providing the detailed costing equations that EPA used 
to calculate annualized capital and net O&M costs for facilities to use 
each of the 14 modeled technologies, EPA has provided the simplified 
formula above, which collapses the results of those equations for the 
particular facility and technology into a single result 
(yepa) and then allows the facility to adjust this result to 
reflect its actual design intake flow, using a technology specific 
slope for a facility like yours that is derived from the costing 
equations. This allows facilities to perform the flow adjustment 
required by Sec.  125.94(a)(5)(i)(B) in a straightforward and 
transparent manner. Facilities, Directors, or members of the public who 
wish to review the detailed costing equations should consult the 
Technical Development Document, Chapter 3.
    EPA has provided some additional information in Appendix A, beyond 
that which is needed to perform the calculations in Sec.  
125.95(a)(5)(ii), to facilitate comparison of the results obtained 
using formula 1 to the detailed costing equations in the TDD, for those 
who wish to do so. EPA does not expect facilities or permit writers to 
do this, and has in fact provided the simplified formula to preclude 
the need for doing so, but is providing the additional information to 
increase transparency. Thus, for informational purposes, the total 
capital cost (not annualized), baseline O&M cost, and post construction 
O&M cost from which the annualized capital and net O&M costs using EPA 
design intake flow (yepa in column 7) are derived are listed 
separately in columns 4 through 6. To calculate yepa, EPA 
annualized the total capital cost using a 7 percent discount rate and 
10 year amortization period, and added the result to the difference 
between the post construction O&M costs and the baseline O&M costs.
    Note that some entries in Appendix A have NA indicated for the EPA 
assumed design intake flow in column 2. These are facilities for which 
EPA projected that they would already meet otherwise applicable 
performance standards based on existing technologies and measures. EPA 
projected zero compliance costs for these facilities, irrespective of 
design intake flow, so no flow adjustment is needed. These facilities 
should use $0 as their value for the costs considered by EPA for a like 
facility in establishing the applicable performance standards. EPA 
recognizes that these facilities will still incur permitting and 
monitoring costs, but these are not included in the cost comparison for 
the reasons stated above.
    Step 3: Determine the annualized net revenue loss associated with 
net construction downtime that EPA modeled for the facility to install 
the technology (Sec.  125.94(a)(5)(i)(C)) and the annualized pilot 
study costs that EPA modeled for the facility to test and optimize the 
technology (Sec.  125.94(a)(5)(i)(D)). The sum of these two figures is 
listed in column 10. For informational purposes, the total (not 
annualized) net revenue losses from construction downtime, and total 
(not annualized) pilot study costs are listed separately in columns 8 
and 9. These two figures were annualized using a 7 percent discount 
rate and 30 year amortization period and the results added together to 
get the annualized facility downtime and pilot study costs in column 
10.
    Step 4: Add the annualized capital and O&M costs using actual 
facility design intake flow (yf from step 2), and the 
annualized facility downtime and pilot study costs (column 10 from step 
3) to get the preliminary costs considered by EPA for a facility like 
yours (Sec.  125.94(a)(5)(i)(E)).
    Step 5: Determine which performance standards in Sec.  125.94(b)(1) 
and (2) (i.e., impingement mortality only, or impingement mortality and 
entrainment) are applicable to your facility, and compare these to the 
performance standards on which EPA's cost estimates are based, listed 
in column 11 (Sec.  125.94(a)(5)(i)(F)). If the applicable performance 
standards and those on which EPA's cost estimates are based are the 
same, then the preliminary costs considered by EPA for a facility like 
yours are the final costs considered by EPA for a facility like yours. 
If only the impingement mortality performance standards are applicable 
to your facility, but EPA based its cost estimates on

[[Page 41647]]

impingement mortality and entrainment performance standards, then you 
should divide the preliminary costs by a factor of 2.148 to get the 
final costs. If impingement mortality and entrainment performance 
standards are applicable to your facility, but EPA based its cost 
estimates on impingement mortality performance standards only, then you 
should multiply the preliminary costs by 2.148 to get the final costs. 
In calculating compliance costs, EPA projected what performance 
standards would be applicable to the facility based on available data. 
However, because of both variability and uncertainty in the underlying 
parameters that determine which performance standards apply (e.g., 
capacity utilization rate, mean annual flow), it is possible that in 
some cases the performance standards that EPA projected are not 
correct. The adjustment factor of 2.148 was determined by taking the 
ratio of median compliance costs for facilities to meet impingement 
mortality and entrainment performance standards over median compliance 
costs for facilities to meet impingement mortality performance 
standards only. While using this adjustment factor will not necessarily 
yield the exact compliance costs that EPA would have calculated had it 
had current information, EPA believes the results are accurate enough 
for determining whether a facility's actual compliance costs are 
``significantly greater than'' the costs considered by EPA for a like 
facility in establishing the applicable performance standards. EPA 
believes it is preferable to provide a simple and transparent 
methodology for making this adjustment that yields reasonably accurate 
results, rather than a much more complex methodology that would be 
difficult to use and understand (for the facility, Director, and 
public), even if the more complex methodology would yield slightly more 
accurate results.
    The Site-Specific Technology Plan is developed based on the results 
of the Comprehensive Cost Evaluation Study and must contain the 
following information:
     A narrative description of the design and operation of all 
existing and proposed design and construction technologies, operational 
measures, and/or restoration measures that you have selected in 
accordance with Sec.  125.94(a)(5);
     An engineering estimate of the efficacy of the proposed 
and/or implemented design and construction technologies or operational 
measures, and/or restoration measures. This estimate must include a 
site-specific evaluation of the suitability of the technologies or 
operational measures for reducing impingement mortality and/or 
entrainment (as applicable) of all life stages of fish and shellfish 
based on representative studies (e.g., studies that have been conducted 
at cooling water intake structures located in the same waterbody type 
with similar biological characteristics) and, if applicable, site-
specific technology prototype or pilot studies. If restoration measures 
will be used, you must provide a Restoration Plan that includes the 
elements described in Sec.  125.95 (b)(5);
     A demonstration that the proposed and/or implemented 
design and construction technologies, operational measures, and/or 
restoration measures achieve an efficacy that is as close as 
practicable to the applicable performance standards of Sec.  125.94(b) 
without resulting in costs significantly greater than either the costs 
considered by the Administrator for a facility like yours in 
establishing the applicable performance standards, or as appropriate, 
the benefits of complying with the applicable performance standards at 
your facility; and,
     Design and engineering calculations, drawings, and 
estimates prepared by a qualified professional to support the elements 
of the Plan.
2. Facility's Costs Significantly Greater Than the Benefits of 
Complying With Performance Standards
    A facility demonstrating that its costs are significantly greater 
than the benefits of complying with performance standards must perform 
and submit a Comprehensive Cost Evaluation Study, a Benefits Valuation 
Study, and a Site-Specific Technology Plan.
    The Comprehensive Cost Evaluation Study is discussed in the 
previous section. It requires the same information for a cost-benefit 
site-specific determination as for a cost-cost site-specific 
determination, except that the demonstration in Sec.  
125.95(b)(6)(i)(B) must show that the facility's actual compliance 
costs significantly exceed the benefits of meeting the applicable 
performance standards at the facility.
    The Benefits Valuation Study requires that a facility use a 
comprehensive methodology to fully value the impacts of impingement 
mortality and entrainment at its site and the benefits of complying 
with the applicable performance standards. In addition to the valuation 
estimates, the benefit study must include the following:
     A description of the methodology(ies) used to value 
commercial, recreational, and ecological benefits (including any non-
use benefits, if applicable);
     Documentation of the basis for any assumptions and 
quantitative estimates. If you plan to use an entrainment survival rate 
other than zero, you must submit a determination of entrainment 
survival at your facility based on a study approved by the Director;
     An analysis of the effects of significant sources of 
uncertainty on the results of the study;
     If requested by the Director, a peer review of the items 
you submit in the Benefits Valuation Study. You must choose the peer 
reviewers in consultation with the Director who may consult with EPA 
and Federal, State, and Tribal fish and wildlife management agencies 
with responsibility for fish and wildlife potentially affected by your 
cooling water intake structure. Peer reviewers must have appropriate 
qualifications depending upon the materials to be reviewed.
     A narrative description of any non-monetized benefits that 
would be realized at your site if you were to meet the applicable 
performance standards and a qualitative assessment of their magnitude 
and significance.
    All benefits, whether expressed qualitatively or quantitatively, 
should be addressed in the Benefits Valuation Study and considered by 
the Director in determining whether compliance costs significantly 
exceed benefits.
    The benefits assessment should begin with an impingement and 
entrainment mortality study, which quantifies both the baseline 
mortality as well as the expected change from rule compliance. The 
benefits assessment should include a qualitative and/or quantitative 
description of the benefits that would be produced by compliance with 
the applicable performance standards at the facility site and, to the 
extent feasible, monetized (dollar) estimates of all significant 
benefits categories using well established and generally accepted 
valuation methodologies. The first benefit category to consider is use 
benefits, which includes such benefits as those to commercial and 
recreational fishermen. Well-established revealed preference and market 
proxy methods exist for valuing use benefits, and these should be used 
in all cases where the impingement and entrainment mortality study 
identifies substantial impacts to harvested or other relevant species.
    The second benefit category to consider is non-use benefits. Non-
use benefits may arise from reduced impacts to ecological resources 
that the public considers important, such as threatened and endangered 
species. Non-use benefits can generally only be monetized through the 
use of stated

[[Page 41648]]

preference methods. When determining whether to monetize non-use 
benefits, permittees and permit writers should consider the magnitude 
and character of the ecological impacts implied by the results of the 
impingement and entrainment mortality study and any other relevant 
information.
     In cases where an impingement mortality and entrainment 
characterization study identifies substantial harm to a threatened or 
endangered species, to the sustainability of populations of important 
species of fish, shellfish or wildlife, or to the maintenance of 
community structure and function in a facility's waterbody or 
watershed, non-use benefits should be monetized.\50\
---------------------------------------------------------------------------

    \50\ In cases where harm cannot be clearly explained to the 
public, monetization is not feasible because stated preference 
methods are not reliable when the environmental improvement being 
valued cannot be characterized in a meaningful way for survey 
respondents.
---------------------------------------------------------------------------

     In cases where an impingement mortality and entrainment 
characterization study does not identify substantial harm to a 
threatened or endangered species, to the sustainability of populations 
of important species of fish, shellfish or wildlife, or to the 
maintenance of community structure and function in a facility's 
waterbody or watershed, monetization is not necessary.
    Permittees should consult with their permitting authority regarding 
their plans for assessing ecological and non-use benefits, including 
whether they plan to conduct a stated preference study and if so, the 
basic design of the study, including such items as target population, 
sampling strategy, approximate sample size, general survey design, and 
other relevant information. When conducting quantitative benefits 
assessments, permittees should carefully review and follow accepted 
best practices for such studies. A discussion of best practices 
regarding valuation can be found in EPA's Guidelines for Preparing 
Economic Analyses (EPA 2000, EPA 240-R-00-003, September 2000) and OMB 
Circular A-4: Regulatory Analysis (September 17, 2003, 
www.whitehouse.gov/omb/inforeg/circular_a4.pdf). In their benefits 
assessment, the permittee should present the results, as well as 
clearly describe the methods used, the assumptions made, and the 
associated uncertainties.
    It is recommended that the permittee and Director seek peer review 
of the major biological and economic aspects of the final benefits 
assessment. The goal of the peer review process is to ensure that 
scientific and technical work products receive appropriate levels of 
critical scrutiny from independent scientific and technical experts as 
part of the overall decision-making process. In designing and 
implementing peer reviews, permittees and permit writers can look to 
EPA's Science Policy Council Handbook--Peer Review (EPA 100-B-98-00, 
January 1998, www.epa.gov) for guidance.
    The Site-Specific Technology Plan is described in the previous 
section. It requires the same information for a cost-benefit site-
specific determination as for a cost-cost site-specific determination, 
except that the demonstration in Sec.  125.95(b)(6)(iii)(C) must show 
that the proposed and/or implemented technologies and measures achieve 
an efficacy that is as close as practicable to the applicable 
performance standards without resulting in costs significantly greater 
than the benefits of complying with the applicable performance 
standards at your facility.

X. Engineering Cost Analysis

A. Technology Cost Modules

    In the Notice of Data Availability (NODA) (68 FR 13522, March 19, 
2003), the Agency presented an approach for developing compliance costs 
that included a broad range of compliance technologies for calculating 
compliance costs as opposed to the approach used for the proposal, 
which was based on a limited set of technologies. In response to 
comments, EPA revised the costing modules that were presented in the 
NODA and used to develop the engineering costs for the final rule. 
Modifications made include adding a new set of costing modules to 
address the installation of fine-mesh wedgewire screens with open mesh 
sizes less than 1 mm in width; revising construction down time needed 
to relocate cooling water intake structures offshore; and reconsidering 
the applicability of the double-entry, single-exit technology and its 
ability to compensate for through-screen velocity issues for fine-mesh 
applications.
    The following modules were used to develop compliance costs for the 
Agency's engineering cost analysis for the final rule:
     Addition of fish handling and return system to an existing 
traveling screen system;
     Addition of fine-mesh screens (both with and without a 
fish handling and return system) to an existing traveling screen 
system;
     Addition of a new, larger intake in front of an existing 
intake screen system;
     Addition of passive fine-mesh screen system (cylindrical 
wedgewire) near shoreline with mesh width of 1.75 mm;
     Addition of passive fine-mesh screen system (cylindrical 
wedgewire) near shoreline with mesh width of 0.76 mm;
     Addition of a fish net barrier system;
     Addition of an aquatic filter barrier system;
     Relocation of an existing intake to a submerged offshore 
location (with velocity cap inlet, passive fine-mesh screen inlet with 
mesh width of 1.75 mm, passive fine-mesh screen inlet with mesh width 
of 0.76 mm, or onshore traveling screens);
     Addition of a velocity cap inlet to an existing offshore 
intake;
     Addition of passive fine-mesh screen to an existing 
offshore intake with mesh width of 1.75 mm;
     Addition of passive fine-mesh screen to an existing 
offshore intake with mesh width of 0.76 mm;
     Addition or modification of a shoreline-based traveling 
screen for an offshore intake system; and
     Addition of dual-entry, single-exit traveling screens 
(with fine-mesh) to a shoreline intake system.
    Further explanation and derivation of each of these costing modules 
and their application for the purposes of assessing costs is discussed 
in the Technical Development Document. For explanation of how the 
Agency applied these technology cost modules to determine compliance 
costs, see section X.B below.

B. Model Facility Cost Development

    In order to implement the technology costing modules discussed in 
section X.A, the Agency used the same basic approach which was 
described in the NODA for the estimation of costs at the model facility 
level. This approach focuses as much as possible on site-specific 
characteristics for which the Agency obtained data through the section 
316(b) questionnaires. In addition, EPA used available geographic 
information, including detailed topographic mapping and overhead 
satellite imagery, to better utilize site-specific characteristics of 
each model facility's intake(s) to determine the appropriate costing 
modules for that facility. The Agency also utilized facility-specific 
information collected for the regional benefits studies to further 
inform the selection of compliance technology at model facilities. The 
Technical Development Document provides the background and a more 
detailed explanation of the

[[Page 41649]]

Agency's approach to model facility level costing, which has not 
changed dramatically from that published in the NODA (68 FR 13522).
    EPA's approach to model facility-level costing may be described as 
follows. In order to project upgrades to technologies as a result of 
compliance with today's final rule, the Agency utilized as much 
information as was available about the characteristics of the 
facilities expected to be within the scope of the rule. By 
incorporating as many site-specific features as possible into the 
design and implementation of its costing approach, the Agency has been 
able to capture a representative range of compliance costs at what it 
deems ``model facilities.'' However, it is infeasible for the Agency to 
visit and study in detail all of the engineering aspects of each 
facility complying with this rule (over 400 facilities could incur 
technology-related compliance costs as a result of this rule). 
Therefore, although the Agency has developed costs that represent EPA's 
best effort to develop a site-specific engineering assessment for a 
particular facility, this assessment does not address any site-specific 
characteristics that only long-term study of each facility would 
reveal. Hence, the Agency refers to its approach as a ``model'' 
facility approach.
    In selecting technology modules for each model facility, EPA, to a 
degree departed from its traditional least cost approach. The least 
cost approach, traditionally utilized for estimating compliance 
technology choices, relies on the principle that the complying plant 
will choose to install the least cost technology that meets the minimum 
standard. While the Agency is confident that the suite of available 
technologies can achieve the performance standards on Sec.  125.94(b) 
generally, EPA lacks sufficient data to determine the precise 
performance of each technology on a site-specific basis for over 400 
different applications. The Agency thus selected, based on criteria 
published in the NODA, one of a set of best performing technologies 
(rather than the least costly technology) that was suitable for each 
model facility (or intake), in order to ensure that the technology on 
which costs were based would in fact achieve compliance at that model 
site. The criteria for selecting the best performing technology for a 
model facility (or intake) utilized questionnaire data as the primary 
tool in the assessment. For those facilities utilizing recirculating 
cooling systems in-place, the Agency assigned no compliance actions as 
they met the standards at baseline. The Agency then determined those 
intakes (facilities) that met compliance requirements with technologies 
in-place. These facilities received no capital or annual operating and 
maintenance compliance upgrade costs (although they may receive 
administrative or monitoring costs). The Agency categorized facilities 
according to waterbody type from which they withdraw cooling water. The 
Agency then sorted the intakes (facilities) within each waterbody type 
based on their configuration as reported in the questionnaires. 
Generally, the categories of intakes within one waterbody type are as 
follows: canal/channel, bay/embayment/cove, shoreline, and offshore. 
Once the intake (facility) is classified to this level the Agency 
examines the type of technology in-place and compares that against the 
compliance requirements of the particular intake (facility). For the 
case of entrainment requirements, the intake technologies (outside of 
recirculating cooling) that qualify to meet the requirements at 
baseline are fine mesh screen systems, and combinations of far-offshore 
inlets with passive intakes or fish handling/return systems. A small 
subset of intakes has entrainment qualifying technologies in-place at 
baseline (for the purposes of this costing effort). Therefore, in the 
case of entrainment requirements, most facilities with the requirement 
would receive technology upgrades. The methodology for choosing these 
entrainment technologies is explained further on in this discussion. 
For the case of impingement requirements, there are a variety of intake 
technologies that qualify (for the purposes of this costing effort) to 
meet the requirements at baseline. The intake types meeting impingement 
requirements at baseline include the following: barrier net (the only 
fish diversion system which qualifies), passive intakes (of a variety 
of types), and fish handling and return systems. A significant number 
of intakes (facilities) have impingement technology in-place that meets 
the qualifications for this costing effort. Therefore, some intakes 
(facilities) require no technology upgrades when only impingement 
requirements apply. For facilities that do not pre-qualify for 
impingement and/or entrainment technology in-place (for the purposes of 
this costing effort), the Agency focuses next on questionnaire data 
relating to the intake type--canal/channel, bay/ embayment/cove, 
shoreline, and offshore. Within each intake type, the Agency further 
classifies according to certain specific characteristics. For the case 
of bays, embayments, and coves, the Agency determined if the intake is 
flush, protruding, or recessed from shoreline. For the case of canals 
and channels, the Agency similarly focuses on whether the intake is 
flush, protruding, or recessed from a shoreline. For the case of 
shoreline intakes, the Agency necessarily assessed whether the intake 
is flush, protruding, or recessed. For the case of offshore intakes, 
the Agency examines whether or not the intake has an onshore terminus 
(or well) and assesses the characteristics of the onshore system. The 
information the Agency gathers up to this point is sufficient to narrow 
down the likely technology applications for each intake (facility). 
However, in order to determine the best technology application, the 
Agency also utilizes commercially available satellite images and maps 
where available. The use of the satellite images and maps aided the 
Agency in determining the potential for the construction of expanded 
intakes in-front of existing intakes and the potential for an intake 
modification to protrude into the waterbody (such as a near-shore t-
screen) due to the degree of navigational traffic in the near vicinity 
of the intake and whether a protrusion might be tolerated, the 
possibility of installing a barrier net system, obvious signs of strong 
currents, the relative distance of a potentially relocated intake 
inlet, the possibility for fish return installations of moderate 
length, etc. The Agency was able to collect satellite images for most 
intakes (facilities) for which it required the resource. However, in 
some cases (especially those in the rural, mid-western U.S.), only maps 
were available. Hence, for the case of a significant number facilities 
located near small freshwater rivers/streams and lakes/reservoirs, the 
Agency utilized only the questionnaire data and the overhead maps 
available.
    Once the Agency gathered the intake (facility) specific information 
to this degree, the applicable list of technologies for each intake was 
small (and in some cases only one technology would apply). Therefore, 
the Agency examined any other sources of information, such as those 
obtained for the regional benefits studies, to further narrow down the 
best technology to meet the requirements of the rule for each model 
intake (facility). Often, the decision was between just two or three 
potential technologies. If there was no evidence in the Agency's 
possession to suggest that the least-cost technology would not 
function, then the Agency would select this technology. However, should 
evidence imply that the least cost technology not be able to function 
reliably or have a feasibility issue

[[Page 41650]]

related to site deployment (for example, a barrier net across a 
navigable waterway or a fish handling and return system with an 
extremely long return trough), then the Agency departed from the 
``least-cost'' decision process and assigned the ``best-performing'' 
technology. In cases where more than one technology still remained 
after ruling out a least-cost alternative due to evidence (which was a 
rare occurrence), then the Agency attempted to balance the application 
of the remaining technologies about a median, thereby assigning 
moderately high costs for some cases and moderately low costs in 
others. Therefore, for the case of national costs, the Agency's 
application of technology cost modules reflect a reasonable national 
average.

C. Facility Flow Modifications

    In developing costs and benefits for the NODA, the Agency revised 
intake flow information for a small subset of inscope facilities in an 
effort to ensure the accuracy and quality of the data. In developing 
costs and benefits for the final rule, the Agency has further refined 
the intake flow information used.
    Since the NODA, the Agency re-evaluated its original decision to 
use the reported 1998 (the most recent of three years collected) annual 
flows for Detailed Questionnaire (DQ) recipients for the calculation of 
benefits. This, in turn, had an impact on the development of estimated 
design intake flows for short-technical questionnaire (STQ) recipients. 
As presented in the NODA, the Agency estimated design intake flows for 
STQ facilities using a statistical methodology based on linear 
regression of DQ recipients' annual intake flows and DQ recipients' 
design intake flows to assess the design intake flow information for 
facilities that responded to the short technical questionnaire. Because 
the Agency asked STQ respondents for only their actual annual intake 
flow for the 1998 reporting year only (or a typical operational year), 
it was necessary to calculate design intake flow information for the 
purpose of accurately assessing compliance costs. Therefore, for the 
NODA and proposal, the Agency calculated design intake flows for STQ 
facilities based on a model derived from only the 1998 DQ flow data. In 
retrospect, the Agency determined that a more robust approach would be 
to use all three years of annual DQ flows collected (1996--1998) and to 
take advantage of the statistical abilities afforded by the expanded 
data set (that is, to determine and exclude outliers). Hence, for this 
final rule, the Agency has estimated the costs and benefits of the rule 
using improved flow data over the NODA and proposal. For the case of 
STQ facilities, the Agency has utilized an improved data set for the 
calculation of design intake flows, and, in turn, the calculation of 
compliance costs.

XI. Economic Analysis

A. Final Rule Costs

    EPA estimates that the final rule will have total annualized social 
(pre-tax) costs of $389 million ($2002). Of this total, $385 million 
are direct costs incurred by facilities and $4 million are 
implementation costs incurred by State and Federal government. On a 
post-tax basis, direct costs incurred by facilities subject to the 
final rule are expected to be $249 million, including one-time 
technology costs of complying with the rule, a one-time cost of 
installation downtime, annual operating and maintenance costs, and 
permitting costs (initial permit costs, annual monitoring costs, and 
permit reissuance costs).
    These cost estimates include compliance costs for eight facilities 
that are projected to be base case closures.\51\ Excluding compliance 
costs for projected base case closure facilities would result in 
annualized pre-tax facility compliance costs of approximately $376 
million and annualized post-tax facility compliance costs of 
approximately $244 million. The equivalent annualized post-tax facility 
compliance costs were $178 million at proposal and $265 million for the 
NODA preferred option. The cost difference between proposal and the 
NODA is due primarily to the expanded range of technology options 
considered for the NODA and the ``best performing technology'' 
selection criteria used to assign cost modules to model facilities (see 
section IV of the NODA, 68 FR 13522, 13526).
---------------------------------------------------------------------------

    \51\ There are eight base case closures in 2008, the first model 
run year of the IPM. See section XI.B.1 for further discussion of 
analyses using the IPM.
---------------------------------------------------------------------------

    In selecting technology modules for each model facility, EPA, to a 
degree departed from its traditional least cost approach. The least 
cost approach, traditionally utilized for estimating compliance 
technology choices relies on the principle that the complying plant 
will choose to install the least cost technology that meets the minimum 
standard. While the Agency is confident that the suite of available 
technologies can achieve compliance with the proposed performance 
requirements (60-90% reduction in entrainment and 80-95% reduction in 
impingement mortality relative to the calculation baseline), EPA lacks 
sufficient data and resources to determine the precise performance of 
each technology on a site-specific basis for over 400 different 
applications. The Agency thus selected, for subset of sites where 
multiple technologies could be under consideration to meet the 
requirements, a best performing technology (rather than the least 
costly technology of the choices). The best performing technology 
concept, when necessary to apply, relied on assigning technologies 
about a median cost, with some choices above and below. Therefore, for 
each model facility (or intake), in order to ensure that the technology 
on which costs were based would in fact achieve compliance at that 
model site, the Agency could not rely on a one-size fits all, least-
cost approach. The cost difference between the NODA and the final rule 
is primarily a result of decreases in capital and permitting cost 
estimates.
    Capital and O&M costs changed between NODA and final primarily due 
to three factors. The Agency revised its application of certain 
technology cost modules (especially the dual-entry, single-exist 
traveling screen module) between NODA and final, in response to 
comments received. The Agency revised its costs for some passive screen 
technology costs utilizing finer mesh screens, in response to comments 
received. In addition, the Agency credited facilities with far offshore 
intakes plus certain impingement controls in-place (such as fish 
handling or passive inlet screens) as having met the requirements for 
entrainment reduction at baseline. This final change was also in 
response to comments that recommended that the Agency correlate the 
benefits assessment more closely with the engineering cost estimates. 
The overall net result of these changes was to slightly decrease total 
capital and total O&M costs of the rule. However, on the basis of 
facilities expected to upgrade technologies to meet the rule 
requirements, the capital and O&M costs did increase slightly.
    There are many uncertainties surrounding any forecast. The national 
annualized costs estimated for today's rule were necessarily developed 
using several major assumptions which are subject to uncertainty. The 
Agency attempted to develop a plausible range of costs focusing on four 
major cost assumptions surrounding the direct private cost of $385 
million that may be incurred when facilities implement this rule. 
Uncertainty factors were analyzed for the cost assumptions affecting 
technology capital, technology O&M, downtime for connection outages, 
initial permitting, and pilot studies. This

[[Page 41651]]

uncertainty analysis provided a range of costs for the national private 
(direct) annualized compliance costs of $377 to $437 million. This 
range was developed by examining the effect of capacity utilization 
assumptions on technology capital and O&M costs; the effects of 
annualization time frame for initial permitting and downtime connection 
outages; the effects of sampling frequency and data analysis on pilot 
study costs; and excluding costs for facilities that have partial 
recirculating systems. For more information on the Agency's analysis of 
this issue, see DCN 6-5045.

------------------------------------------------------------------------
                                  Base case facility
         Cost assumption            compliance cost       Sensitivity
                                       estimate            estimate
------------------------------------------------------------------------
Annualization time frame for      30 years..........  20 years.
 initial permitting and downtime.
Partial recirculation system      No................  Yes.
 credit.
Capacity utilization rate used    Based on 2008 IPM   Based on historic
 to estimate technology capital    Forecast.           utilization.
 and O&M.
Pilot study costs...............  Moderate sampling   High sampling
                                   frequency.          frequency.
------------------------------------------------------------------------

B. Final Rule Impacts

1. Energy Market Model Analysis
    At proposal and for the NODA, EPA used an electricity market model, 
the Integrated Planning Model (IPM[reg]), to identify potential 
economic and operational impacts of various regulatory options 
considered for the Phase II regulation.\52\ Electric reliability impact 
analyses could not be performed using the IPM model. EPA does recognize 
that due to down time or connection outages estimated to install 
several of the technologies, and the number of facilities that will 
need to come into compliance over the first few years after today's 
rule is promulgated, there may be short-term electric reliability 
issues unless care is taken within each region to coordinate outages 
with the North American Electric Reliability Council (NERC) and where 
possible with normal scheduled maintenance operations. Noting this, EPA 
has provided flexibility in today's rule so that facilities can develop 
workable construction schedules with their permit writers and 
coordinate with NERC to appropriately schedule down times (see Sec.  
125.95(b)(4)(ii)). As noted in the NERC 2003 Long-term Reliability 
Assessment, the overall impact on reliability of any new environmental 
requirements will ``* * * depend on providing sufficient time to make 
the necessary modifications and the commercial availability of control 
technologies.'' \53\ EPA conducted impact analyses at the market level, 
by NERC region,\54\ and for facilities subject to the Phase II 
regulation. Analyzed characteristics include changes in electricity 
prices, capacity, generation, revenue, cost of generation, and income. 
These changes were identified by comparing two scenarios: (1) The base 
case scenario (in the absence of any section 316(b) Phase I and Phase 
II regulation) and (2) the post compliance scenario (after the 
implementation of the new section 316(b) Phase II regulations). At 
proposal, EPA used the results of these comparisons to assess the 
impacts of the proposed rule and two of the five alternative compliance 
options considered by EPA: (1) The ``Intake Capacity Commensurate with 
Closed-Cycle, Recirculating Cooling System based on Waterbody Type/
Capacity'' option and (2) the ``Intake Capacity Commensurate with 
Closed-Cycle, Recirculating Cooling System for All Facilities'' option. 
For the NODA, EPA assessed the impacts of the preferred option and the 
``Intake Capacity Commensurate with Closed-Cycle, Recirculating Cooling 
System based on Waterbody Type/Capacity'' option, making several 
changes to the analysis (major changes included changes in IPM model 
aggregation, capacity utilization assumptions, and treatment of 
installation downtime; see section V.A of the NODA).
---------------------------------------------------------------------------

    \52\ For a detailed description of the IPM see Chapter B3 of the 
Economic and Benefits Analysis (EBA) document in support of the 
proposed rule (DCN 4-0002; http://www.epa.gov/ost/316b/econbenefits/b3.pdf).
    \53\ North American Electric Reliability Council (NERC). 2003. 
2003 Long-term Reliability Assessment: The Reliability of Bulk 
Electric Systems in North America; prepared December 2003.
    \54\ The IPM models the ten NERC regions that cover the 
continental U.S.: ECAR (East Central Area Reliability Coordination 
Agreement), ERCOT (Electric Reliability Council of Texas), FRCC 
(Florida Reliability Coordinating Council), MAAC (Mid-Atlantic Area 
Council), MAIN (Mid-America Interconnected Network, Inc.), MAPP 
(Mid-Continent Area Power Pool), NPCC (Northeast Power Coordination 
Council), SERC (Southeastern Electricity Reliability Council), SPP 
(Southwest Power Pool), and WSCC (Western Systems Coordinating 
Council). Electric generators in Alaska and Hawaii are not 
interconnected with these regions and are not modeled by the IPM.
---------------------------------------------------------------------------

    Since publication of the NODA, EPA has conducted further IPM 
analyses. The following sections present a discussion of changes to the 
analysis since the NODA and the results of the re-analysis of the final 
rule.
    a. Changes to the IPM analyses since the NODA. EPA did not change 
its IPM assumptions and modeling procedures for this final rule. EPA 
continued to use the 2000 version of the IPM model to perform the final 
rule analysis. In the 2003 current version of the IPM, the model has 
been updated to include, among other things, effects of the State 
Multi-Pollutant regulations and the New Source Review settlements on 
environmental compliance costs associated with the IPM base case. 
Further, the 2003 version of the IPM model includes updated costs for 
existing facilities such as life extension costs. However, a few 
general changes affect the results presented in the following 
subsection. These changes are outlined in section VI.A and include the 
following: An increase in the estimated number of in-scope Phase II 
facilities from 551 to 554; revisions of technology, operating and 
maintenance, and permitting/monitoring costs; and changes to the 
assumption of construction downtimes for compliance technologies other 
than recirculating cooling towers.
    b. Revised results for the Final Rule. This section presents the 
revised impact analysis of the final rule. The impacts of compliance 
with the final rule are defined as the difference between the modeling 
results for the base case scenario and the modeling results for the 
post-compliance scenario. Two base case scenarios were used to analyze 
the impacts associated with the final rule. The first base case 
scenario was developed using EPA's electricity demand assumption. Under 
this assumption, demand for electricity is based on the Annual Energy 
Outlook (AEO) 2001 forecast adjusted to account for efficiency 
improvements not factored into AEO's projections of electricity sales. 
The second base case was developed using the unadjusted electricity 
demand from the AEO 2001. The results presented in this section use the 
first, EPA-adjusted base case.

[[Page 41652]]

Results using the second base case are presented in the Appendix of 
Chapter B3 of the final EBA.
    EPA analyzed impacts of the final rule using data from model run 
year 2010. Model run year 2010 was chosen to represent the effects of 
the final rule for a typical year in which all facilities are expected 
to be in compliance (for this analysis, EPA assumed that facilities 
come into compliance between 2005 and 2009; in reality, compliance is 
expected to begin in 2008).\55\ The analysis was conducted at two 
levels: the market level including all facilities (by NERC region) and 
the Phase II facility level (including analyses of the in-scope Phase 
II facilities as a group and of individual Phase II facilities). The 
results of these analyses are presented in the following subsections.
---------------------------------------------------------------------------

    \55\ EPA also analyzed potential market-level impacts of the 
final rule for a year during which some Phase II facilities 
experience installation downtimes. This analysis used output from 
model run year 2008. See Chapter B3, section B3-4.3 of the final EBA 
for the results of this analysis.
---------------------------------------------------------------------------

    i. Market-level impacts of the Final Rule. The market-level 
analysis includes results for all generators located in each NERC 
region including facilities both in-scope and out-of-scope of the 
proposed Phase II rule. Exhibit XI-1 presents five measures used by EPA 
to assess market-level impacts associated with the final rule, by NERC 
region: (1) Incremental capacity closures, calculated as the difference 
between capacity closures under the final rule and capacity closures 
under the base case; (2) incremental capacity closures as a percentage 
of baseline capacity; (3) post-compliance changes in variable 
production costs per MWh, calculated as the sum of total fuel and 
variable O&M costs divided by total generation; (4) post-compliance 
changes in energy price, where energy prices are defined as the 
wholesale prices received by facilities for the sale of electric 
generation; and (5) post-compliance changes in pre-tax income, where 
pre-tax income is defined as total revenues minus the sum of fixed and 
variable O&M costs, fuel costs, and capital costs. Additional results 
are presented in Chapter B3: Electricity Market Model Analysis (section 
B3-4.1) of the Economic and Benefits Analysis (EBA) in support of the 
final rule (DCN 6-0002). Chapter B3 also presents a more detailed 
interpretation of the results of the market-level analysis.

                                              Exhibit XI-1.--Market-Level Impacts of the Final Rule (2010)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Incremental closures          Change in
                                                                         --------------------------------    variable        Change in    Change in pre-
                       NERC region                           Baseline                                       production     energy price     tax income
                                                           capacity (MW)   Capacity (MW)   % of baseline   cost per MWh       per MWh         ($2002)
                                                                                             capacity        (percent)       (percent)       (percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
ECAR....................................................         118,529  ..............            -0.0             0.1             0.3            -0.8
ERCOT...................................................          75,290  ..............            -0.0             0.0             5.8            -5.6
FRCC....................................................          50,324  ..............            -0.0             0.4             0.6            -3.0
MAAC....................................................          63,784  ..............            -0.0             0.4             0.1            -0.9
MAIN....................................................          59,494              94             0.2             0.1            -0.3            -0.3
MAPP....................................................          35,835  ..............            -0.0            -0.1            -0.3             0.1
NPCC....................................................          72,477  ..............            -0.0            -0.5            -0.1            -1.9
SERC....................................................         194,485  ..............            -0.0             0.0            -0.1            -0.5
SPP.....................................................          49,948  ..............            -0.0            -0.1            -0.2            -0.4
WSCC....................................................         167,748              58             0.0             0.0             0.0            -0.5
                                                         -----------------
    Total...............................................         887,915             152             0.0             0.0             n/a            -1.0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Two of the ten NERC regions modeled, MAIN and WSCC, are estimated 
to experience economic closures of existing capacity as a result of the 
final rule. These closures represent negligible percentages of regional 
baseline capacity (0.2% in MAIN and less than 0.1% in WSCC) and of 
total U.S. baseline capacity (less than 0.1%). EPA estimates that four 
NERC regions will experience increases in variable production costs per 
MWh, although the largest increase will not exceed 0.4 percent. In 
addition, four NERC regions will experience an increase in energy 
prices under the final rule. Of these, only ERCOT is estimated to 
experience an increase of more than 1.0 percent (5.8 percent). Pre-tax 
incomes are estimated to decrease in all but one region, but the 
majority of these changes will be less than 1.0 percent. ERCOT is 
estimated to experience the largest decrease in pre-tax income (-5.6 
percent). Only one region, MAPP, will experience an increase in market-
level pre-tax income (0.1 percent).
    ii. Facility-level impacts of the Final Rule. The results from 
model run year 2010 were used to analyze impacts on Phase II facilities 
at two levels: (a) Potential changes in the economic and operational 
characteristics of the group of in-scope Phase II facilities as a whole 
and (b) potential changes to individual facilities within the group of 
Phase II facilities. Exhibit XI-2 presents five measures used by EPA to 
assess impacts to the group of Phase II facilities associated with the 
final rule, by NERC region: (1) Incremental capacity closures, 
calculated as the difference between capacity closures under the final 
rule and capacity closures under the base case; (2) incremental 
capacity closures as a percentage of baseline capacity; (3) post-
compliance changes in variable production costs per MWh, calculated as 
the sum of total fuel and variable O&M costs divided by total 
generation; (4) post-compliance changes in electricity generation; and 
(5) post-compliance changes in pre-tax income, where pre-tax income is 
defined as total revenues minus the sum of fixed and variable O&M 
costs, fuel costs, and capital costs. Additional results are presented 
in section B3-4.2 of the final EBA. Chapter B3 also presents a more 
detailed interpretation of the results of the analysis of Phase II 
facilities as a group.

[[Page 41653]]



                                         Exhibit XI-2.--Impacts on Phase II Facilities of the Final Rule (2010)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Incremental closures          Change in
                                                                         --------------------------------    variable        Change in    Change in pre-
                       NERC region                           Baseline                                       production      generation      tax income
                                                           capacity (MW)   Capacity (MW)   % of baseline   cost per MWh      (percent)       (percent)
                                                                                             capacity        (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
ECAR....................................................          82,313               0             0.0             0.0            -0.2            -1.0
ERCOT...................................................          43,522               0             0.0            -0.7            -1.8           -10.4
FRCC....................................................          27,537               0             0.0             0.3            -0.8            -4.0
MAAC....................................................          34,376               0             0.0             0.0             0.2            -1.4
MAIN....................................................          36,498              94             0.3             0.1            -0.3            -0.6
MAPP....................................................          15,749               0             0.0            -0.1             0.0            -0.3
NPCC....................................................          37,651               0             0.0            -1.7            -3.6            -4.3
SERC....................................................         107,450               0             0.0            -0.3            -0.2            -0.7
SPP.....................................................          20,471               0             0.0            -0.4            -0.7            -1.0
WSCC....................................................          28,431              58             0.2            -0.9            -4.3           -10.4
                                                         -----------------
    Total...............................................         433,998             152             0.0            -0.6            -0.8            -1.8
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Identical to the market-level results, EPA estimates that 152 MW, 
or less than 0.1%, of capacity at Phase II facilities will close as a 
result of the final rule. (If the AEO's higher demand forecast is 
utilized, it would result in a larger capacity of early closures of 493 
MW or more than 0.1%. See EBA B3 appendix Table B3-A-3.) MAIN (94 MW) 
and WSCC (58 MW) are the only regions that are estimated to experience 
incremental capacity closures. In both regions, these incremental 
closures represent less than 0.3% of baseline capacity at Phase II 
facilities. Variable production costs per MWh at Phase II facilities 
increase in two regions and decrease in six regions under the final 
rule. No region experiences an increase in Phase II facility production 
costs that exceeds 0.5 percent, while Phase II facilities in NPCC and 
WSCC see reductions of 1.7 percent and 0.9 percent, respectively. Phase 
II facilities in three NERC regions are estimated to experience 
decreases in generation in excess of 1.0 percent as a result of the 
final rule. The largest is estimated to be in WSCC, where Phase II 
facilities experience a 4.3 percent reduction in generation. Overall, 
EPA estimates that pre-tax income will decrease by 1.8 percent for the 
group of Phase II facilities. The effects of this change are 
concentrated in a few regions: WSCC and ERCOT each experience 
reductions in pre-tax income of 10.4 percent, which is driven by a 
reduction in revenues (not presented in this exhibit) rather than an 
increase in costs. NPCC and FRCC are estimated to experience a 
reduction of 4.3 and 4.0 percent, respectively.
    Results for the group of Phase II facilities as a whole may mask 
shifts in economic performance among individual facilities subject to 
this rule. To assess potential distributional effects, EPA analyzed 
facility-specific changes between the base case and the post-compliance 
case in (1) capacity utilization, defined as generation divided by 
capacity times 8,760 hours, (2) electricity generation, (3) revenue, 
(4) variable production costs per MWh, defined as variable O&M cost 
plus fuel cost divided by generation, and (5) pre-tax income, defined 
as total revenues minus the sum of fixed and variable O&M costs, fuel 
costs, and capital costs.
    Exhibit XI-3 presents the total number of Phase II facilities with 
estimated degrees of change due to the final rule. This exhibit 
excludes 17 in-scope facilities with estimated significant status 
changes in 2010: Ten facilities are base case closures, one facility is 
a full closure as a result of the final rule, and six facilities 
changed their repowering decision between the base case and the post-
compliance case. These facilities are either not operating at all in 
either the base case or the post-compliance case, or they experience 
fundamental changes in the type of units they operate; therefore, the 
measures presented in Exhibit XI-3 would not be meaningful for these 
facilities. In addition, the change in variable production cost per MWh 
of generation could not be developed for 57 facilities with zero 
generation in either the base case or post-compliance scenario. For 
these facilities, the change in variable production cost per MWh is 
indicated as ``n/a.''

            Exhibit XI-3.--Operational Changes at Phase II Facilities From the Final Rule (2010) \a\
----------------------------------------------------------------------------------------------------------------
                                            Reduction                     Increase
        Economic measures        ------------------------------------------------------------    No        N/A
                                     3%       3%     change
----------------------------------------------------------------------------------------------------------------
Change in Capacity Utilization           6        21        25         7         7        11       441         0
 \b\............................
Change in Generation............         4         6        46        11         5        18       428         0
Change in Revenue...............        83        30        45       142         8        16       194         0
Change in Variable Production           38        16         9       145        11        17       225        57
 Costs/MWh......................
Change in Pre-Tax Income........       115       109       213        44        11        15        11         0
----------------------------------------------------------------------------------------------------------------
\a\ For all measures percentages used to assign facilities to impact categories have been rounded to the nearest
  10th of a percent.
\b\ The change in capacity utilization is the difference between the capacity utilization percentages in the
  base case and post-compliance case. For all other measures, the change is expressed as the percentage change
  between the base case and post-compliance values.

    EPA estimates that the majority of Phase II facilities will not 
experience changes in capacity utilization or generation due to 
compliance with the final rule. Of those facilities with changes in 
post-compliance capacity utilization and generation, most will 
experience decreases in these measures. Exhibit XI-3 also indicates 
that the majority of facilities with changes in variable production 
costs will experience increases. However, about 85

[[Page 41654]]

percent of those increases are estimated to be 1.0 percent or less. 
Changes in revenues at a majority of Phase II facilities will also not 
exceed 1.0 percent. The largest effect of the final rule is estimated 
to be on facilities' pre-tax income: the model projects that over 80 
percent of facilities will experience a reduction in pre-tax income, 
with about 40 percent of the overall total experiencing a reduction of 
3.0 percent or greater.
2. Other Economic Analyses
    EPA updated its other economic analyses conducted at proposal and 
for the NODA to determine the effect of changes made to the assumptions 
for the final rule on steam electric generating facilities. This 
section discusses changes made to EPA's methodology and assumptions and 
presents the updated results. For complete results of this analysis, 
refer to Chapter B2 of the final EBA. For complete results of the 
proposal and the NODA analyses, refer to the chapters in Part B of the 
EBA document in support of the proposed rule at http://www.epa.gov/waterscience/316b/econbenefits/ and DCN 5-3004 of the NODA docket.
    It should be noted that the measures presented in this section are 
provided in addition to the economic impact measures based on the 
Integrated Planning Model (IPM[reg]) analyses (see section XI.B.1). The 
following measures are used to assess the magnitude of compliance 
costs; they are not used to predict closures or other types of economic 
impacts on facilities subject to Phase II regulation.
    a. Cost-to-revenue measure.
    i. Facility-level analysis. EPA examined the annualized post-tax 
compliance costs of the final rule as a percentage of baseline annual 
revenues, for each of the 554 facilities expected to be subject to 
Phase II of the section 316(b) regulation. This measure allows for a 
comparison of compliance costs incurred by each facility with its 
revenues in the absence of the Phase II regulation. The revenue 
estimates are facility-specific baseline projections from the IPM base 
case for 2008 (see section XI.B.1 for a discussion of EPA's analyses 
using the IPM).\56\
---------------------------------------------------------------------------

    \56\ EPA used 2008 rather than 2010 baseline revenues for this 
analysis because 2008 is the first model run year specified in the 
IPM analyses. EPA used the first model run year because it more 
closely resembles the current operating conditions of in-scope 
facilities than later run years (over time, facilities may be 
increasingly affected by factors other than the Phase II 
regulation).
---------------------------------------------------------------------------

    Similar to the findings at proposal and for the NODA preferred 
option, EPA estimates that a majority of the facilities subject to the 
final rule, 413 out of 554 (75 percent), will incur annualized costs of 
less than one percent of revenues. Of these, 314 facilities incur 
compliance costs of less than 0.5 percent of revenues. In addition, 94 
facilities (17 percent) are estimated to incur costs of between one and 
three percent of revenues, and 39 facilities (7 percent) are estimated 
to incur costs of greater than three percent. Eight facilities are 
estimated to be base case closures.
    ii. Firm-level analysis. The firms owning the facilities subject to 
Phase II regulation may experience greater impacts than individual in-
scope facilities if they own more than one facility with compliance 
costs. EPA therefore also analyzed the cost-to-revenue ratios at the 
firm level. EPA identified the domestic parent entity of each in-scope 
facility and obtained their sales revenue from publicly available data 
sources (the Dun and Bradstreet database for parent firms of investor-
owned utilities and nonutilities; and Form EIA-861 for all other parent 
entities). This analysis showed that 126 unique domestic parent 
entities own the facilities subject to Phase II regulation. EPA 
compared the aggregated annualized post-tax compliance costs for each 
facility owned by the 126 parent entities to the firms' total sales 
revenue.
    Since proposal, EPA has updated the parent firm determination for 
Phase II facilities. EPA also updated the average Form EIA-861 data 
used for this analysis from 1996-1998 (used at proposal) to 1997-1999 
(used for the NODA) and 1999-2001 (used for the final rule). In 
addition, EPA made one modification to the sources of revenue data used 
in this analysis: At proposal, EPA used sales volume from Dun and 
Bradstreet (D&B) for any parent entity listed in the database. If D&B 
data were not available, EPA used the EIA database or the section 
316(b) survey. For the NODA and final rule analyses, EPA used the D&B 
database for privately-owned entities only. For other entities, EPA 
used the EIA database. For the final rule analysis, EPA conducted 
additional research (e.g., Securities and Exchange Commission 10-K 
filings; company web sites) to collect revenue data for those firms 
whose revenue was not reported in either D&B or Form EIA 861.
    For the final rule, EPA estimates that of the 126 parent entities, 
115 entities (91 percent) will incur annualized costs of less than one 
percent of revenues. Of these, 105 entities incur compliance costs of 
less than 0.5 percent of revenues. In addition, 10 entities (8 percent) 
are estimated to incur costs of between one and three percent of 
revenues, and only one entity (1 percent) is estimated to incur costs 
of greater than three percent. The highest estimated cost-to-revenue 
ratio for the final rule is 6.7 percent of the entities' annual sales 
revenue (for the proposed rule, this value was 5.3 percent; for the 
NODA preferred option, this value was 7.4 percent).
    b. Cost per household. EPA also conducted an analysis that 
evaluates the potential cost per household, if Phase II facilities were 
able to pass compliance costs on to their customers. This analysis 
estimates the average compliance cost per household for each North 
American Electricity Reliability Council (NERC) region,\57\ using two 
data inputs: (1) The average annual pre-tax compliance cost per 
megawatt hour (MWh) of total electricity sales and (2) the average 
annual MWh of residential electricity sales per household. For the 
proposal and NODA analyses, EPA used 2000 electricity sales information 
from Form EIA-861 (Annual Electric Power Industry Report); for the 
final rule, EPA updated the electricity sales information to 2001.
---------------------------------------------------------------------------

    \57\ There are twelve NERC regions: ASCC (Alaska Systems 
Coordinating Council), ECAR (East Central Area Reliability 
Coordination Agreement), ERCOT (Electric Reliability Council of 
Texas), FRCC (Florida Reliability Coordinating Council), HI 
(Hawaii), MAAC (Mid-Atlantic Area Council), MAIN (Mid-America 
Interconnected Network, Inc.), MAPP (Mid-Continent Area Power Pool), 
NPCC (Northeast Power Coordination Council), SERC (Southeastern 
Electricity Reliability Council), SPP (Southwest Power Pool), and 
WSCC (Western Systems Coordinating Council).
---------------------------------------------------------------------------

    The results of this analysis show that the average annual cost of 
the final rule per residential household is expected to range from 
$0.50 in Alaska to $8.18 in Hawaii. The U.S. average is estimated to be 
$1.21 per household.
    c. Electricity price analysis. EPA also considered potential 
effects of the final Phase II rule on electricity prices. EPA used 
three data inputs in this analysis: (1) Total pre-tax compliance cost 
incurred by facilities subject to Phase II regulation, (2) total 
electricity sales, based on the Annual Energy Outlook (AEO), and (3) 
prices by end use sector (residential, commercial, industrial, and 
transportation), also from the AEO. All three data elements were 
calculated by NERC region. For the proposal and NODA analyses, EPA used 
the AEO 2002; for the final rule, EPA updated the data with the AEO 
2003.
    The results of the final rule analysis show that the annualized 
costs of complying (in cents per KWh sales) range from 0.007 cents in 
the SPP region to 0.019 cents in the NPCC region. To determine 
potential effects of these

[[Page 41655]]

compliance costs on electricity prices, EPA compared the per KWh 
compliance cost to baseline electricity prices by end use sector and 
for the average of the sectors (the detailed results are presented in 
Chapter B2 of the final EBA). This analysis projects that the greatest 
increase in electricity prices will be in the WSCC region (0.3 
percent). The average increase in electricity prices is estimated to be 
0.16 percent (for the proposed rule, this value was 0.11 percent; for 
the NODA preferred option, this value was 0.17 percent).

XII. Benefits Analysis

A. Introduction

    This section presents EPA's estimates of the national environmental 
benefits of the final section 316(b) regulations for Phase II existing 
facilities. The assessed benefits occur due to the reduction in 
impingement and entrainment at cooling water intake structures affected 
by this rulemaking. Impingement and entrainment kills or injures large 
numbers of all life stages of aquatic organisms. By reducing the levels 
of impingement and entrainment, today's final rule will increase the 
number of fish, shellfish, and other aquatic life in local aquatic 
ecosystems. This, in turn, directly and indirectly improves use 
benefits such as those associated with recreational and commercial 
fisheries. Other types of benefits, including ecological and non-use 
values, would also be enhanced. Section D provides an overview of the 
types and sources of benefits anticipated, how these benefits are 
estimated, the level of benefits achieved by the final rule, and how 
monetized benefits compare to costs. The analysis was based on 
impingement and entrainment data from facility studies. Most of these 
studies counted losses of fish species only and considered only a 
limited subset of the species impinged and entrained.
    To estimate the economic benefits of reducing impingement and 
entrainment at existing cooling water intake structures, all the 
beneficial outcomes need to be identified and, where possible, 
quantified and assigned appropriate monetary values. Estimating 
economic benefits is challenging because of the many steps necessary to 
link reductions in impingement and entrainment to changes in impacted 
fisheries and other aspects of relevant aquatic ecosystems, and then to 
link these ecosystem changes to the resulting changes in quantities and 
values for the associated environmental goods and services that 
ultimately are linked to human welfare. The methodologies used in the 
estimation of benefits of the final rule are largely built upon those 
used for estimating use benefits of the proposed rule (see 67 FR 17121) 
and the Notice of Data Availability (see 67 FR 38752). The Regional 
Analysis Document for the Proposed Section 316 (b) Phase II Existing 
Facilities Rule (see DCN 6-0003), hereafter known as the Regional Study 
or Regional Analysis, provides EPA's complete benefit assessment for 
the final rule.
    National benefit estimates for this rule are derived from a series 
of regional studies across the country from a range of waterbody types. 
Section XII.B provides detail on the regional study design. Sections 
XII.C through XII.E of this preamble describe the methods EPA used to 
evaluate impingement and entrainment impacts at section 316(b) Phase II 
existing facilities and to derive an economic value associated with any 
such losses. Regional benefits are estimated using a set of statistical 
weights for each in-scope facility that were developed as part of the 
survey design. National benefit estimates are obtained by summing 
regional benefits.

B. Regional Study Design

    In its analysis for the section 316(b) Phase II proposal, EPA 
relied on case studies of 19 facilities grouped by waterbody type 
(oceans, estuaries/tidal rivers, lakes/reservoirs, and rivers/streams) 
to estimate the potential economic benefits of reduced impingement and 
entrainment. For the proposal analysis, EPA extrapolated estimates of 
impingement and entrainment for each of the case study facilities to 
other facilities located on the same waterbody type, including those in 
different regions. However, a number of commenters expressed concern 
about this method of extrapolation, noting that there are important 
ecological and socioeconomic differences among different regions of the 
country, even within the same waterbody type. To address this concern, 
EPA revised the design of its analysis to examine cooling water intake 
structure impacts and regulatory benefits at the regional level. This 
involved the evaluation of impingement and entrainment data collected 
by the industry for another 27 facilities in addition to the 19 
facilities evaluated for proposal (for a total of 46 facilities). 
Regional results were then combined to develop national estimates.
    The Agency evaluated the benefits of today's rule in seven study 
regions (North Atlantic, Mid Atlantic, South Atlantic, Gulf of Mexico, 
California, Great Lakes, and Inland) based on similarities in the 
affected ecosystems, aquatic species present, and characteristics of 
commercial and recreational fishing activities within each of the seven 
regions (see the background chapter of each study region in Parts B-H 
of the Regional Analysis Document for maps of the study regions). The 
five coastal regions (California, North Atlantic, Mid-Atlantic, South 
Atlantic, and Gulf of Mexico) correspond to those of the National 
Oceanographic and Atmospheric Association (NOAA) Fisheries. The Great 
Lakes region includes all facilities in scope of the Phase II rule that 
withdraw water from Lakes Ontario, Erie, Michigan, Huron, and Superior 
or are located on a waterway with open fish passage to a Great Lake and 
within 30 miles of the lake. The Inland region includes the remaining 
facilities that withdraw water from freshwater lakes, rivers, and 
reservoirs.
    Based on comments on the proposal about study gaps, EPA used 
available life history data to construct representative regional life 
histories for groups of similar species with a common life history type 
and groups used by NOAA Fisheries for landings data. Aggregation of 
species into groups facilitated evaluation of facility impingement and 
entrainment monitoring data. DCN 6-0003 provides a listing of the 
species in each life history group evaluated by EPA and tables of the 
life history data and data sources used for each group.
    To obtain regional impingement and entrainment estimates, EPA 
extrapolated losses from selected facilities with impingement and 
entrainment data to all other facilities within the same region. 
Impingement and entrainment data were extrapolated on the basis of 
operational flow, in millions of gallons per day (MGD), where MGD is 
the average operational flow over the period 1996-1998 as reported by 
facilities in response to EPA's Section 316(b) Detailed Questionnaire 
and Short Technical Questionnaire. Operational flow at each facility 
was scaled using factors reflecting the relative effectiveness of 
currently in-place technologies for reducing impingement and 
entrainment. DCN 6-0003 provides details of the extrapolation 
procedure. The goal of the analysis was to provide regional and 
national estimates, so although there may be variability in the actual 
losses (and benefits) per MGD across particular individual facilities, 
EPA believes that this method of extrapolation is a reasonable basis 
for developing an estimate of regional- and national-level

[[Page 41656]]

benefits for the purposes of this rulemaking.

C. The Physical Impacts of Impingement and Entrainment

    EPA's benefits analysis is based on facility-provided biological 
monitoring data. Facility data consist of records of impinged and 
entrained organisms sampled at intake structures. However, factors such 
as sampling methods and equipment, the number of samples taken, the 
duration of the sampling period, and the unit of time and volume of 
intake flow used to express impingement and entrainment, and other 
aspects of facility sampling programs, are highly variable. The data 
available covered organisms of all ages and life stages from newly laid 
eggs to mature adults. Therefore, EPA converted sampling counts into 
standardized estimates of the annual numbers of fish impinged or 
entrained and then expressed these estimates in terms of metrics 
suitable for the environmental assessment and economic benefits 
analysis.
    EPA notes that the facility studies evaluated may under or over 
estimate impingement and entrainment rates. For example, facility 
studies typically focus on only a subset of the fish species impacted 
by impingement and entrainment, resulting in an underestimate of the 
number of species and total losses. Studies often did not count early 
life stages of organisms that were hard to identify. In addition, most 
studies EPA found were conducted over 30 years ago, before activities 
under the Clean Water Act improved aquatic conditions. In those 
locations where water quality was degraded relative to current 
conditions, the numbers and diversity of fish may have been depressed 
during the monitoring period, resulting in low impingement and 
entrainment estimates. On the other hand, use of linear methods for 
projecting losses to fish and shellfish in the waterbody may overstate 
or understate impacts. Nevertheless, EPA believes that the data from 
the facility studies were sufficient for developing an estimate of the 
relative magnitude of impingement and entrainment losses nation-wide.
    Using standard fishery modeling techniques,\58\ EPA constructed 
models that combined facility-derived impingement and entrainment 
counts with relevant life history data to derive estimates of (1) age-
one equivalent losses (the number of individuals of different ages 
impinged and entrained by facility intakes expressed as age-one 
equivalents), (2) foregone fishery yield (pounds of commercial harvest 
and numbers of recreational fish and shellfish that are not harvested 
due to impingement and entrainment), and (3) foregone biomass 
production (pounds of impinged and entrained forage species that are 
not commercial or recreational fishery targets but serve as valuable 
components of aquatic food webs, particularly as an important food 
supply to other aquatic species, including commercial and recreational 
species). Estimates of foregone fishery yield include direct and 
indirect losses of impinged and entrained species that are harvested. 
Indirect losses represent the yield of these harvested species that is 
lost due to losses of forage species. Details of the methods used for 
these analyses are provided in Chapter A5 of Part A of the Regional 
Analysis document. For all analyses, EPA used the impingement and 
entrainment estimates provided by the facility and assumed 100% 
entrainment mortality based on the analysis of entrainment survival 
studies presented in Chapter A7 of Part A of the Regional Analysis 
document.
---------------------------------------------------------------------------

    \58\ Ricker, W.E. 1975. Computation and interpretation of 
biological statistics of fish populations. Fisheries Research Board 
of Canada, Bulletin 191; Hilborn, R. and C.J. Walters. 1992. 
Quantitative Fisheries Stock Assessment, Choice, Dynamics and 
Uncertainty. Chapman and Hall, London and New York.; Quinn, T.J., 
II. and R.B. Deriso. 1999. Quantitative Fish Dynamics. Oxford 
University Press, Oxford and New York; Dixon, D.A. 1999. Catalog of 
Assessment Methods for Evaluating the Effects of Power Plant 
Operations on Aquatic Communities. Final Report. Report number TR-
112013.
---------------------------------------------------------------------------

    Exhibit XII-1 presents EPA's estimates of the current level of 
total annual impingement and entrainment in the study regions.

                   Exhibit XII-1.--Total Current Annual Impingement and Entrainment, by Region
----------------------------------------------------------------------------------------------------------------
                                                                                                      Biomass
                                                                      Age-one        Foregone       production
                             Region                                 equivalents    fishery yield     foregone
                                                                    (millions)     (million lbs)   (million lbs)
----------------------------------------------------------------------------------------------------------------
California......................................................          312.94           28.87           43.62
North Atlantic..................................................           65.70            1.26          289.12
Mid Atlantic....................................................        1,733.14           67.2           110.90
South Atlantic..................................................          342.54           18.34           28.31
Gulf of Mexico..................................................          191.23           35.81           48.12
Great Lakes.....................................................          319.11            3.59           19.34
Inland..........................................................          369               3.53          122.0
                                                                 -----------------
    Total for 554 facilities a..................................        3,449.38          164.97          717.07 
----------------------------------------------------------------------------------------------------------------
a National totals are sample-weighted and include Hawaii. Hawaii benefits are calculated based on average loss
  per MGD in North Atlantic, Mid Atlantic, Gulf of Mexico, California and the total intake flow in Hawaii.

    Exhibit XII-2 presents EPA's estimates of annual combined 
impingement and entrainment reductions associated with the rule, by 
region.

[[Page 41657]]



                   Exhibit XII-2.--Reductions In Annual Impingement and Entrainment, by Region
----------------------------------------------------------------------------------------------------------------
                                                                                                      Biomass
                                                                      Age-one        Foregone       production
                             Region                                 equivalents    fishery yield     foregone
                                                                    (millions)     (million lbs)   (million lbs)
----------------------------------------------------------------------------------------------------------------
California......................................................           66.39            6.10            9.19
North Atlantic..................................................           19.34            0.37           84.28
Mid Atlantic....................................................          846.37           34.28           54.66
South Atlantic..................................................           76.67            5.31            6.31
Gulf of Mexico..................................................           89.55           13.84           16.50
Great Lakes.....................................................          159.52            1.73            8.51
Inland..........................................................          116.83            1.06           20.90
                                                                 -----------------
    Total for 554 facilities a..................................        1,420.20           64.92          217.09 
----------------------------------------------------------------------------------------------------------------
a National totals are sample-weighted and include Hawaii. Hawaii losses are estimates based on average loss
  rates per MGD at mainland coastal facilities and the total intake flow of the Hawaii facilities.

D. National Benefits of Rule

1. Overview
    Economic benefits of today's rule can be broadly defined according 
to categories of goods and services provided by the species affected by 
impingement and entrainment at cooling water intake structures (CWIS). 
The first category includes benefits that pertain to the use (direct or 
indirect) of the affected fishery resources. The direct use benefits 
can be further categorized according to whether or not affected goods 
and services are traded in the market. The ``direct use'' benefits of 
the 316(b) regulation include both ``market'' commodities (e.g., 
commercial fisheries) and ``nonmarket'' goods (e.g., recreational 
angling). Indirect use benefits also can be linked to either market or 
nonmarket goods and services--for example, the manner in which reduced 
impingement- and entrainment-related losses of forage species leads 
through the aquatic ecosystem food web to enhance the biomass of 
species targeted for commercial (market) and recreational (nonmarket) 
uses. The second category includes benefits that are independent of any 
current or anticipated use of the resource; these are known as ``non-
use'' or ``passive use'' values. Non-use benefits reflect human values 
associated with existence and bequest motives.
    The economic value of benefits is estimated using a range of 
valuation methods, with the specific approach being dependent on the 
type of benefit category, data availability, and other suitable 
factors. Commercial fishery benefits are valued using market data. 
Recreational angling benefits are valued using a combination of primary 
and secondary research methods. For four of the seven study regions, 
EPA developed original Random Utility Models (RUM) of recreational 
angling behavior to estimate changes in recreational fishing values 
resulting from improved fishing opportunities due to reductions in 
impingement and entrainment. For the remaining three study regions 
(Inland, North Atlantic, and South Atlantic), EPA used secondary 
nonmarket valuation data (e.g., benefits transfer of nonmarket 
valuation studies of the value of recreational angling). Because 
methodologies for estimating use values for recreational and commercial 
species are well developed, and some of these species have been 
extensively studied, these values are relatively straightforward to 
estimate. Sections XII.D.3 and XII.D.4 briefly summarize EPA's 
approaches to measuring direct use benefits. A detailed description of 
these approaches can be found in the 316(b) Regional Analysis document.
    Estimating benefits from reduced impingement and entrainment of 
forage species is more challenging because these species are not 
targeted directly by commercial or recreational anglers and have no 
direct use values that can be observed in markets or inferred from 
revealed actions of anglers. To estimate indirect use benefits from 
reducing impingement and entrainment losses to forage species, EPA used 
a simple trophic transfer model that translates changes in impingement 
and entrainment losses of forage fish into changes in the harvest of 
commercial and recreational species that are subject to impingement and 
entrainment (i.e., not the whole food web). Agency benefits estimates 
are based on projected numbers of age 1 equivalent fish saved under the 
final rule.
    Neither forage species nor the unlanded portion of recreational and 
commercial species have direct uses; therefore, they do not have direct 
use values. Their potential value to the public is derived from two 
alternative sources: their indirect use as both food and breeding 
population for those fish harvested; and, the willingness of 
individuals to pay for the protection of fish based on a sense of 
altruism, stewardship, bequest, or vicarious consumption (non-use 
benefits). To estimate non-use benefits from reducing losses to forage 
species, and landed and unlanded commercial and recreational species, 
EPA explored benefits transfer from nonmarket valuation studies of non-
use values of aquatic ecosystem improvements. EPA also explored the 
transfer of secondary nonmarket valuation data to value losses of 
threatened and endangered species. These efforts generated evidence 
that non-use values could occur as a result of this rule, but EPA was 
unable, by the time of publication of this final rule, to estimate 
reliable valuations for the resource changes associated with the 
expected results of this rule. EPA also investigated additional 
approaches to illustrate public willingness-to-pay for potential 
aquatic resource improvements that might occur because of this rule, 
but the Agency did not have sufficient time to fully develop and 
analyze these non-use benefit approaches for the final rule. Section 
XII.D.5 briefly summarizes the approaches EPA considered for measuring 
non-use benefits. Additional details about all approaches explored for 
estimating benefits can be found in Section XII.F and the 316(b) 
Regional Analysis document (DCN 6-0003).
    As a consequence of the challenges associated with estimating 
benefits, some benefits are described only qualitatively, because it 
was not feasible, by the time of publication of this final rule, to 
derive reliable quantitative estimates of the degree of impact and/or 
the monetary value of reducing those impacts at the national level.
    The remaining parts of Section XII.D below discuss details about 
discounting future benefits, valuation of recreational fishing, 
valuation of commercial fishing,

[[Page 41658]]

potential non-use benefits, and estimation of national benefits.
2. Timing of Benefits
    Discounting refers to the economic conversion of future benefits 
and costs to their present values, accounting for the fact that 
individuals tend to value future outcomes less than comparable near-
term outcomes. Discounting is important when benefits and costs occur 
in different years, and enables a comparison of benefits to costs 
across different time periods.
    For today's rule, benefits are discounted to calculate benefits in 
a manner that makes the timing comparable to the annualized cost 
estimates. The benefits of today's rule are estimated as the typical 
benefits expected once the rule takes effect. The need to discount 
arises from two different delays in the realization of benefits.
    First, facilities will not immediately achieve compliance. 
Facilities will face regulatory requirements once the rule takes 
effect, but it will take time to make the required changes. EPA has 
assumed, for the purpose of estimating benefits, that it will take one 
year from the date when installation costs are incurred by a facility 
until the required cooling water technology is operational. To account 
for this lag, all benefits are discounted by one year from the date 
when costs are incurred.
    Second, an additional time lag will result between the time of 
technology implementation and resulting increased fishery yields. This 
lag stems from the fact that one or more years may pass between the 
time an organism is spared impingement and entrainment and the time of 
its ultimate harvest. For example, a larval fish spared from 
entrainment (in effect, at age 0) may be caught by a recreational 
angler at age 3, meaning that a 3-year time lag arises between the 
incurred technology cost and the realization of the estimated 
recreational benefit. Likewise, if a 1-year old fish is spared from 
impingement and is then harvested by a commercial waterman at age 2, 
there is a 1-year lag between the incurred cost and the subsequent 
commercial fishery benefit. To account for this growth period, EPA 
applied discounting by species groups in each regional study. EPA 
conducted this analysis using two alternative discount rates as 
recommended by OMB: 3% and 7%. The Agency notes that discounting was 
applied to recreational and commercial fishing benefits only. Non-use 
benefits are independent of fish age and size and, thus start as soon 
as impingement and entrainment ceases.
3. Recreational Fishing Valuation
    a. Recreational fishery methods for marine regions. For the five 
coastal regions, EPA's analysis of recreational fishing benefits from 
reduced impingement and entrainment is based on region-specific random 
utility models (RUM) of recreational anglers' behavior, combined with 
benefit function transfer. EPA developed original RUM models for four 
of the five coastal regions: California, the Mid-Atlantic, the South 
Atlantic, and the Gulf of Mexico. For the North Atlantic region, EPA 
used a model developed by the National Marine Fisheries Service (NMFS) 
by Hicks et al. (Hicks, Steinback, Gautam, and Thunberg, 1999. Volume 
II: The Economic Value of New England and Mid-Atlantic Sportfishing in 
1994--DCN 5-1271). Chapter A11 of the Regional Analysis document 
provides detailed discussion of the methodology used in EPA's RUM 
analysis.
    The regional recreational fishing studies use information on 
recreational anglers' behavior to infer anglers' economic value for the 
quality of fishing in the case study areas. The models' main assumption 
is that anglers will get greater satisfaction, and thus greater 
economic value, from sites where the catch rate is higher due to 
reduced impingement and entrainment, all else being equal. This benefit 
may occur in two ways: first, an angler may get greater enjoyment from 
a given fishing trip when catch rates are higher, and thus get a 
greater value per trip; second, anglers may take more fishing trips 
when catch rates are higher, resulting in greater overall value for 
fishing in the region. EPA modeled an angler's decision to visit a site 
as a function of site-specific cost, fishing trip quality, and 
additional site attributes such as presence of boat launching 
facilities or fish stocking at the site.
    The Agency used 5-year historical catch rates per hour of fishing 
as a measure of baseline fishing quality in the regional studies. Catch 
rate is one of the most important attributes of a fishing site from the 
angler's perspective. This attribute is also a policy variable of 
concern because catch rate is a function of fish abundance, which is 
affected by fish mortality caused by impingement and entrainment.
    The Agency used the estimated model coefficients in conjunction 
with the estimated changes in impingement and entrainment in a given 
region to estimate per-day welfare gain to recreational anglers due to 
the final rule. For the North Atlantic region, EPA used model 
coefficients estimated by Hicks et al. (1999) (DCN 4-1603).
    To estimate the total economic value to recreational anglers for 
changes in catch rates resulting from changes in impingement and 
entrainment in a given region, EPA multiplied the total number of 
fishing days for a given region by the estimated per-day welfare gain 
due to the regulation. Because of data limitations, EPA was unable to 
estimate participation models for all regions. For the California and 
Great Lakes regions, the welfare estimates presented in the following 
section are based on the estimates of baseline recreational fishing 
participation provided by NOAA Fisheries. Thus, welfare estimates for 
these two regions presented in today's rule do not account for changes 
in recreational fishing participation due to the improved quality of 
the fishing sites; however, these changes are likely to be small based 
on results for other regions.
    For the North Atlantic, Mid-Atlantic, South-Atlantic, and Gulf 
regions, estimates are based on an average of baseline and predicted 
increased fishing days. For these regions, EPA also estimated a trip 
frequency model, which captures the effect of changes in catch rates on 
the number of fishing trips taken per recreational season.
    b. Recreational Fishery methods for the Great Lakes region. For the 
Great Lakes region, EPA developed an original RUM model for the state 
of Michigan, and transferred benefits to other Great Lakes states. 
EPA's RUM model for the Great Lakes used data from the 2001 Michigan 
Recreational Anglers survey, and information on historical catch rates 
at Michigan fishing sites on Lakes Michigan, Huron, Superior, and Erie 
provided by the Michigan Department of Natural Resources (MDNR, 2002, 
DCN 4-1863). For the Great Lakes, EPA estimated a single RUM site 
choice model for boat, shore, and ice-fishing modes. To transfer values 
from the Michigan study to other Great Lakes states, EPA used harvest 
information from state-level anglers' creel surveys, and participation 
information from the U.S. Fish and Wildlife Service's Annual Survey of 
Fishing, Hunting, and Wildlife-Related Recreation (U.S. Department of 
the Interior, 2001, DCN 1-3082-BE).
    c. Recreational fishery methods for the Inland region. For the 
Inland region, EPA used a benefit transfer approach to value post 
regulation recreational impingement and entrainment losses. EPA 
conducted this analysis for five aggregate species groups: panfish, 
perch, walleye/pike, bass, and anadromous gamefish. The panfish group 
includes

[[Page 41659]]

species commonly classified as panfish, except perch, and includes 
species that did not clearly fit in one of the other groups. Using 
estimates collected from ten studies, the Agency calculated measures of 
central tendency for the marginal value of catching one additional fish 
for each species group. For detail see Chapter H4, of the Regional 
Study Document, DCN 6-0003.
    The mean marginal value per additional fish caught is $2.55 for 
panfish, $0.38 for perch, $6.54 for walleye/pike, $4.18 for bass, and 
$11.95 for anadromous gamefish. EPA combined these marginal values per 
fish with estimates of recreational fishing losses that would be 
prevented by the regulation to calculate the value of post regulation 
recreational fishing benefits.
    d. Results. As noted earlier in this section, anglers will get 
greater satisfaction, and thus greater economic value, from sites where 
the catch rate is higher, all else being equal. Decreasing impingement 
and entrainment increases the number of fish available to be caught by 
recreational anglers, thus increasing angler welfare.
    Exhibit XII-3 shows the benefits that would result from reducing 
impingement and entrainment losses by installing cooling water intake 
technology under the final regulation. These values were discounted at 
a 3 percent discount rate and a 7 percent discount rate to reflect the 
fact that fish must grow to a certain size before they will be caught 
by recreational anglers and to account for the one-year lag between the 
date when installation costs are incurred and technology 
implementation.
    The greatest recreational fishing benefits from reducing 
impingement and entrainment losses occur in the Mid-Atlantic, South 
Atlantic, and Great Lakes regions. For more detailed information on the 
models and results for each region, see Chapter 4 in Parts B through H 
of the 316(b) Regional Analysis document.

                     Exhibit XII-3.--Post Regulation Recreational Fishing Benefits From Reducing Impingement and Entrainment Losses
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Baseline         Reduction in             Benefits of final rule (million 2002$)
                                                              recreational       recreational   --------------------------------------------------------
                          Region                             fishery losses     fishery losses
                                                            (number of fish)   (number of fish)   0% Discount rate   3% Discount rate   7% Discount rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
California...............................................          5,787,661          1,735,668              $3.01              $2.45              $1.91
North Atlantic...........................................            916,396            267,536               1.59               1.38               1.17
Mid Atlantic.............................................         20,468,540          9,990,333              47.69              43.37              38.48
South Atlantic...........................................          4,314,983            985,769               7.49               6.85               6.17
Gulf of Mexico...........................................          3,854,850          1,201,806               6.79               6.18               5.53
Great Lakes..............................................          4,743,384          2,283,896              15.51              13.95              12.21
Inland...................................................          3,188,097            930,610               3.34               2.98               2.58
                                                          --------------------
    Total for 554 facilities \a\.........................         44,513,814         17,908,496              87.83              79.34             69.96
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ National totals are sample-weighted and include Hawaii. Hawaii benefits are calculated based on average loss per MGD in North Atlantic, Mid
  Atlantic, Gulf of Mexico, California and the total intake flow in Hawaii.

    The total for all regions, discounted at three percent, is $79.3 
million; and the total for all regions, discounted at seven percent, is 
$70.0 million.
    e. Limitations and uncertainties. Because of the uncertainties and 
assumptions of EPA's analysis, the estimates of benefits presented in 
this section may understate the benefits to recreational anglers. In 
estimating the benefits of improved recreational angling for the 
California and Great Lakes regions, the Agency assigned a monetary 
benefit only to the increases in consumer surplus for the baseline 
number of fishing days. This approach omits the portion of recreational 
fishing benefits that arise when improved conditions lead to higher 
levels of participation. However, EPA's analysis of changes in 
recreational fishing participation due to the section 316(b) regulation 
for other coastal regions shows that the practical effect of this 
omission is likely to be very small with respect to the total 
recreational benefits assessment.
4. Commercial Fishing Valuation
    Reductions in impingement and entrainment at cooling water intake 
structures are expected to benefit the commercial fishing industry. The 
effect is straightforward: reducing the number of fish killed will 
increase the number of fish available for harvest. Measuring the 
benefits of this effect is less straightforward. The next section 
summarizes the methods EPA used to estimate benefits to the commercial 
fishing sector. The following section presents the estimated commercial 
fishing benefits for each region.
    a. Methods. EPA estimated commercial benefits by first estimating 
the value of total losses under current impingement and entrainment 
conditions (or the total benefits of eliminating all impingement and 
entrainment). Then, based on review of the empirical literature, EPA 
assumed that producer surplus is equal to 0% to 40% of baseline losses. 
Finally, EPA estimated benefits by applying the estimated percentage 
reduction in impingement and entrainment to the estimated producer 
surplus to obtain the estimated increase in producer surplus 
attributable to the rule. This methodology was applied in each region 
in the final analysis: the North Atlantic, Mid-Atlantic, South 
Atlantic, Gulf of Mexico, California, Great Lakes, and Inland. 
Additional detail on the methods EPA used for this analysis can be 
found in Chapter A10 ``Methods For Estimating Commercial Fishing 
Benefits'' in the Regional Analysis Document.
    The process used to estimate regional losses and benefits to 
commercial fisheries is as follows:
    1. Estimate losses to commercial harvest (in pounds of fish) 
attributable to impingement and entrainment under current conditions. 
The basic approach is to apply a linear stock-to-harvest assumption, 
such that if 10% of the current commercially targeted stock were 
harvested, then 10% of the commercially targeted fish lost to 
impingement and entrainment would also have been harvested absent 
impingement and entrainment. The percentage of fish harvested is based 
on data on historical fishing mortality rates.
    2. Estimate gross revenue of lost commercial catch. The approach 
EPA

[[Page 41660]]

uses to estimate the value of the commercial catch lost due to 
impingement and entrainment relies on landings and dockside price ($/
lb) as reported by NOAA Fisheries for the period 1991-2001. These data 
are used to estimate the revenue of the lost commercial harvest under 
current conditions (i.e., the increase in gross revenue that would be 
expected if all impingement and entrainment impacts were eliminated).
    3. Estimate lost economic surplus. The conceptually suitable 
measure of benefits is the sum of any changes in producer and consumer 
surplus. The methods used for estimating the change in surplus depend 
on whether the physical impact on the commercial fishery market appears 
sufficiently small such that it is reasonable to assume there will be 
no appreciable price changes in the markets for the impacted fisheries.
    For the regions and magnitude of losses included in this analysis, 
it is reasonable to assume no change in price, which implies that the 
welfare change is limited to changes in producer surplus. The change in 
producer surplus is assumed to be equivalent to a portion of the change 
in gross revenues, as developed under step 2. EPA assumes a range of 0% 
to 40% of the gross revenue losses estimated in step 2 as a means of 
estimating the change in producer surplus. This is based on a review of 
empirical literature (restricted to only those studies that compared 
producer surplus to gross revenue) and is consistent with 
recommendations made in comments on the EPA analysis at proposal.
    4. Estimate increase in surplus attributable to the Phase II 
regulations. Once the commercial surplus losses associated with 
impingement and entrainment under baseline conditions have been 
estimated according to the approaches outlined in steps 2 and 3, EPA 
estimates the percentage reduction in impingement and entrainment at a 
regional level.
    b. Results. Exhibit XII-4 presents the estimated commercial fishing 
benefits attributable to today's rule for each region. The results 
reported include the total reduction in losses in pounds of fish, and 
the value of this reduction discounted at 0%, 3%, and 7%. Total 
commercial fishing benefits for the U.S., applying a 3% discount rate, 
are estimated to range from $0 to $3.5 million. Applying a 7% rate they 
range from $0 to $3.5 million.

                                                 Exhibit XII-4.--Annual Commercial Fishing Benefits \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Current                                      Benefits (millions of 2002$) \b\
                                                            (baseline) lost   Reduction in lost --------------------------------------------------------
                        Region \c\                           yield (million     yield (million
                                                                  lbs)               lbs)         0% discount rate   3% discount rate   7% discount rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
California...............................................               11.5                2.4                0.7                0.5                0.4
North Atlantic...........................................                0.6                0.2                0.1                0.1                0.0
Mid Atlantic.............................................               48.7               25.3                1.8                1.7                1.5
South Atlantic...........................................                9.6                3.5                0.2                0.2                0.2
Gulf of Mexico...........................................                7.6                3.6                0.8                0.7                0.6
Great Lakes..............................................                1.6                0.8                0.2                0.2                0.2
Inland U.S...............................................                n/a                n/a                n/a                n/a                n/a
                                                          --------------------
    Total for 554 facilities.............................               82.8               37.0                4.1                3.5               3.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Benefits are upper bound benefits based on 40% of gross revenue. The lower bound is $0.
\b\ Discounted to account for lag in implementation and lag in time required for fish lost to I&E to reach a harvestable age. Assumed it will take one
  year from the date when installation costs are incurred to the date of installation. Thus, all benefits are discounted by one year from the date when
  installation costs are incurred.
\c\ Regional totals are unweighted. National total estimates are weighted and include Hawaii.

    c. Limitations and uncertainties. Some of the major uncertainties 
and assumptions of EPA's commercial fishing analysis include:
     Projected changes in harvest may be under-estimated 
because the cumulative impacts of impingement and entrainment over time 
are not considered.
     The analysis only includes individuals that are directly 
killed by impingement and entrainment, not their progeny, though given 
the complexities of population dynamics, the significance of this 
omission is not clear.
     Projected changes in harvest may be too high or too low 
because interactions with other stressors are not considered.
     EPA used impingement and entrainment data provided by the 
facilities. While EPA used the most current data available, in some 
cases these data are 20 years old or older. Thus, they may not reflect 
current conditions.
     EPA assumes a linear stock-to-harvest relationship (i.e., 
a 13% change in stock would have a 13% change in landings); this may be 
low or high, depending on the condition of the stocks. Region-specific 
fisheries regulations also will affect the validity of the linear 
assumption.
     EPA assumes that NOAA Fisheries landings data are accurate 
and complete. However, in some cases prices and/or quantities may be 
reported incorrectly.
     EPA currently estimates that the increase in producer 
surplus as a result of the rule will be between 0% and 40% of the 
estimated change in gross revenues. The research used to develop this 
range is not region-specific; thus the true value may be higher for 
some regions and species.
5. Non-Use Benefits
    As discussed by Freeman (1993), ``Non-use values, like use values, 
have their basis in the theory of individual preferences and the 
measurement of welfare changes. According to theory, use values and 
non-use values are additive,'' and ``* * * there is a real possibility 
that ignoring non-use values could result in serious misallocation of 
resources.'' This statement by Freeman aptly conveys the importance of 
non-use benefits outlined in EPA's own economic valuation guidance 
documents. A comprehensive estimate of total resource value should 
include both use and non-use values, so that the resulting appropriate 
total benefit value estimates may be compared to total social cost.
    It is clear that reducing impingement and entrainment losses of 
fish and shellfish may result in both use and non-use benefits. Of the 
organisms which are anticipated to be protected by the section 316(b) 
Phase II rule, it is projected that approximately 1.8 percent will 
eventually be harvested by commercial and recreational fishers and

[[Page 41661]]

therefore can be valued with direct use valuation techniques. The 
Agency's direct use valuation does not account for the benefits from 
the remaining 98.2% of the age 1 equivalent aquatic organisms estimated 
to be protected nationally under today's rule. A portion of the total 
benefits of these unharvested commercial, recreational, and forage 
species, can be derived indirectly from the estimated use values of the 
harvested animals. A percentage of these unlanded organisms become prey 
or serve as breeding stock in the production of those commercial and 
recreational species that will eventually be caught, therefore their 
indirect use value as biological input into the production process is 
represented in the estimated direct use values of the harvested fish.
    EPA was unable to value the non-use benefits associated with this 
rule. In order to provide an estimate of the quantified (but not 
monetized) effects of the rule, Exhibit XII-5 summarizes information 
about total impingement and entrainment losses, and Exhibit XII-6 
presents estimates of reductions in impingement and entrainment losses 
under the final rule.

                                          Exhibit XII-5.--Distribution of Baseline Impingement and Entrainment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Current I&E of annual age-one equivalents (millions)
                                                          ----------------------------------------------------------------------------  I&E of harvested
                                                                                                                        Harvested         species as a
                        Region\a\                             All species                          Commercial and     commercial and     percentage of
                                                                (total)         Forage species      recreational       recreational        total I&E
                                                                                                      species            species
--------------------------------------------------------------------------------------------------------------------------------------------------------
California...............................................              312.9              170.6              142.3               14.9                4.8
North Atlantic...........................................               65.7               49.7               16.0                0.7                1.0
Mid Atlantic.............................................            1,733.1            1,115.6              617.6               28.4                1.6
South Atlantic...........................................              342.5              208.1              134.5                6.5                1.9
Gulf of Mexico...........................................              191.2               53.5              137.8                8.1                4.2
Great Lakes..............................................              319.1              300.8               18.3                0.5                0.2
Inland...................................................              369.0              284.8               84.2                0.2                0.1
                                                          --------------------
    Total for 554 facilities \a\.........................            3,449.4            2,255.8            1,193.6               62.1               1.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Regional totals are unweighted. National total estimates are weighted and include Hawaii.


                                        Exhibit XII-6.--Distribution of Reductions in Impingement and Entrainment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Reductions in I&E of annual age-one equivalents (millions)           Reduction in I&E
                                                          ----------------------------------------------------------------------------    of harvested
                                                                                                                        Harvested         species as a
                        Region \a\                            All species                          Commercial and     commercial and     percentage of
                                                                (total)         Forage species      recreational       recreational     total reduction
                                                                                                      species            species             in I&E
--------------------------------------------------------------------------------------------------------------------------------------------------------
California...............................................               66.4               36.0               30.4                3.2                4.8
North Atlantic...........................................               19.3               14.6                4.7                0.2                1.0
Mid Atlantic.............................................              846.4              537.5              308.8               13.9                1.6
South Atlantic...........................................               76.7               38.5               38.2                1.6                2.0
Gulf of Mexico...........................................               89.5               20.5               69.0                3.6                4.0
Great Lakes..............................................              159.5              151.7                7.8                0.2                0.1
Inland...................................................              116.8              101.2               15.7                0.1                0.1
                                                          --------------------
    Total for 554 facilities.............................            1,420.2              928.9              491.3               23.7               1.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Regional numbers are unweighted. National totals are sample-weighted and include Hawaii.

    Lack of direct use values for the unharvested commercial, 
recreational and forage species means that EPA did not directly value a 
substantial percentage of the total age-one equivalent impingement and 
entrainment losses. Given that aquatic organisms without any direct 
uses account for the majority of cooling water intake structure losses 
and indirect valuation of these species may only represent a fraction 
of their total value, comprehensive monetization of the benefits of 
reduced impingement and entrainment losses is incomplete without 
developing a reliable estimate of non-use benefits. Although 
individuals do not use these resources directly, they may value changes 
in their status or quality. Both users (commercial and recreational 
fishermen) as well as non-users (those who do not use the resource) may 
have non-use values for these species. Non-use benefit valuation is 
challenging, but the existence and potential importance of non-use 
benefits is supported by EPA's Guidelines for Preparing Economic 
Analysis (EPA 240-R-00-003) and OMB Circular A-4, Regulatory Analysis, 
also available as Appendix D of Informing Regulatory Decisions: 2003 
Report to Congress on The Costs and Benefits of Federal Regulations and 
Unfunded Mandates on State, Local and Tribal Entities, OMB, 2003, pp 
118-165.
    Market valuation approaches are used to estimate use benefits. The 
theory and practice of nonmarket valuation is well developed, and 
typically plays a pivotal role in benefit-cost analysis conducted by 
public and private agencies. Non-use values are often considered more 
difficult to estimate. The preferred technique for estimating non-use 
values is to conduct original stated preference surveys, but benefit 
transfer of values from existing stated preference studies can be 
considered when original studies are not feasible.
    Stated preference methods rely on surveys, which ask people to 
state their willingness-to-pay for particular ecological improvements, 
such as increased protection of aquatic species or habitats with 
particular attributes. The Agency was not able to perform an original 
stated preference study for this regulation, so benefit transfer was 
explored as an alternative means to estimate non-use benefits. Benefits 
transfer involves adapting the findings from research conducted for 
another

[[Page 41662]]

purpose to address the policy questions in hand.
    One of the specific benefit transfer techniques explored by EPA for 
estimation of non-use benefits in Phase II of the 316(b) rulemaking was 
meta regression analysis. Meta regressions are designed to 
statistically define the relationship between values and a set of 
resource, demographic and other characteristics compiled from original 
primary study sources. The resulting mathematical relationship allows 
the researcher to forecast estimates of non-use values specific to the 
resource changes projected to occur as a consequence of the final rule. 
EPA's Guidelines for Preparing Economic Analysis (EPA 240-R-00-003) 
discusses the use of meta-analysis and notes that this approach is the 
most rigorous benefit transfer exercise.
    The meta analysis conducted by EPA for this rule identifies a set 
of elements that may influence willingness-to-pay; the analysis found 
both statistically significant and intuitive patterns that appeared to 
influence non-use values for water quality improvements in aquatic 
habitats. However, the Agency encountered various limitations when 
trying to apply the meta analysis model to this final rule, and these 
limitations could not be thoroughly analyzed within the publication 
time-frame established for this rule. EPA therefore does not present 
estimates of non-use values for this final rule.
    Due to the various difficulties associated with estimating indirect 
and non-use benefits for this rule, final benefits do not reflect 
reduced impacts to a variety of potential ecological and public 
services that are a function, in part, of healthy fish stocks and other 
organisms affected by cooling water intake structures. Examples of 
other potential ecosystem services that may potentially be adversely 
affected by impingement and entrainment losses but which could not be 
monetized include:
     Decreased numbers of ecological keystone, rare, or 
sensitive species;
     Increased numbers of exotic or disruptive species that 
compete well in the absence of species lost to I&E
     Disruption of ecological niches and ecological strategies 
used by aquatic species;
     Disruption of organic carbon, nutrient, and energy 
transfer through the food web;
     Decreased local biodiversity;
     Disruption of predator-prey relationships;
     Disruption of age class structures of species; and
     Disruption of public satisfaction with a healthy 
ecosystem.
    The existence and potential magnitude of each of these benefits 
categories is highly dependent on site-specific factors which could not 
be assessed.
    Today's rule may help preserve threatened and endangered species, 
but primary research, using stated preference methods, and data 
collection regarding threatened and endangered species impacts, could 
not be conducted for the final rule at the national level. As a result, 
EPA explored other methods for valuing threatened and endangered 
species. Details about possible non-use benefits valuation approaches 
are presented in the 316(b) Regional Analysis document (DCN 6-0003).
6. National Monetized Benefits
    Quantifying and monetizing reduction in impingement and entrainment 
losses due to today's final rule is extremely challenging, and the 
preceding sections discuss specific limitations and uncertainties 
associated with estimation of commercial and recreational benefits 
categories (presented in Exhibit XII-7), and non-use benefits. National 
benefit estimates are subject to uncertainties inherent in valuation 
approaches used for assessing the three benefits categories. The 
combined effect of these uncertainties is of unknown magnitude or 
direction (i.e., the estimates may over or under state the anticipated 
national-level benefits); however, EPA has no data to indicate that the 
results for each benefit category are atypical or unreasonable.
    Exhibit XII-7 presents EPA's estimates of the total monetized 
benefits from impingement and entrainment reduction of the final 
regulation. Although EPA believes non-use benefits exist, the Agency 
was not able to monetize them. The estimated impingement and 
entrainment reduction monetized benefits post regulation are $83 
million (2002$) per year, discounted at three percent, and $73 million, 
discounted at seven percent.

                              Exhibit XII-7.--Summary of Monetized Social Benefits
                                                [Millions; 2002$]
----------------------------------------------------------------------------------------------------------------
                                                                                                 Total value of
                                                                                                  monetizable
                        Region a                             Commercial        Recreational     impingement and
                                                          fishing benefits   fishing benefits     entrainment
                                                                                                  reductions b
----------------------------------------------------------------------------------------------------------------
                                     Evaluated at a 3 percent discount rate
----------------------------------------------------------------------------------------------------------------
California.............................................               $0.5               $2.5               $3.0
North Atlantic.........................................                0.1                1.4                1.5
Mid-Atlantic...........................................                1.7               43.4               45.1
South Atlantic.........................................                0.2                6.9                7.1
Gulf of Mexico.........................................                0.7                6.2                6.9
Great Lakes............................................                0.2               14.0               14.2
Inland.................................................  .................                3.0                3.0
                                                        --------------------
    Total for 554 facilities...........................                3.5               79.3               82.5
--------------------------------------------------------
                                     Evaluated at a 7 percent discount rate
----------------------------------------------------------------------------------------------------------------
California.............................................                0.4                1.9                2.3
North Atlantic.........................................                0.0                1.2                1.2
Mid-Atlantic...........................................                1.5               38.5               40.0
South Atlantic.........................................                0.2                6.2                6.4
Gulf of Mexico.........................................                0.6                5.5                6.1
Great Lakes............................................                0.2               12.2               12.4

[[Page 41663]]

 
Inland.................................................  .................                2.6                2.6
                                                        --------------------
    Total for 554 facilities...........................                3.0               70.0              73.0
----------------------------------------------------------------------------------------------------------------
 a Regional benefit estimates are unweighted. National benefits are sample-weighted and include Hawaii.
 b The monetized benefits of the final rule may be significantly under-estimated due to the inability to
  monetize the non-use values.

E. Other Considerations

    This section presents two additional analyses that consider the 
benefits and costs of the final rule: (1) An analysis of the costs per 
age-one equivalent fish saved (equivalent to a cost-effectiveness 
analysis) and (2) a break-even analysis of the minimum non-use benefits 
required for total annual benefits to equal total annualized costs, on 
a per household basis. Each measure is presented by study region.
1. Cost Per Age-One Equivalent Fish Saved--Cost-Effectiveness Analysis
    EPA also analyzed the cost per organism saved as a result of 
compliance with the final rule. This analysis estimates the cost-
effectiveness of the rule, by study region. Organisms saved are 
measured as ``age-one equivalents.'' The costs used for the regional 
comparisons are the annualized pre-tax compliance costs incurred by 
facilities subject to the final rule, and the cost used for the 
national comparison is the total social cost of the final rule 
(including facility compliance costs and administrative costs).
    Exhibit XII-8 shows that the estimated cost per age-one equivalent 
ranges from $0.07 in the Mid Atlantic region to $1.46 in the Inland 
region. At the national level, the estimated average cost is $0.27 per 
age-one equivalent saved.

                                Exhibit XII-8.--Cost per Age-One Equivalent Saved
----------------------------------------------------------------------------------------------------------------
                                                           Annual social         Age-one
                     Study region a                      cost b (millions;     equivalents        Cost/age-one
                                                               2002$)           (millions)      equivalent saved
----------------------------------------------------------------------------------------------------------------
California.............................................              $31.7               66.4              $0.48
North Atlantic.........................................               13.3               19.3               0.69
Mid Atlantic...........................................               62.6              846.4               0.07
South Atlantic.........................................                9.0               76.7               0.12
Gulf of Mexico.........................................               22.8               89.5               0.25
Great Lakes............................................               58.7              159.5               0.37
Inland.................................................              170.4              116.8               1.46
                                                        --------------------
    Total for 554 facilities...........................              389.4              1,420              0.27
----------------------------------------------------------------------------------------------------------------
a Regional benefit and cost estimates are unweighted; total national estimates are sample-weighted and include
  Hawaii.
b The regional costs include only annual compliance costs incurred by facilities. The national cost includes the
  total social cost of the final rule (facility compliance costs and administrative costs).

2. Break-Even Analysis
    Due to the uncertainties of providing estimates of the magnitude of 
non-use values associated with the final rule, this section provides an 
alternative approach of evaluating the potential relationship between 
benefits and costs. The approach used here applies a ``break-even'' 
analysis to identify what the unmonetized non-use values would have to 
be in order for the final rule to have benefits that are equal to 
costs.
    The break-even approach uses EPA's estimated or monetized, 
commercial and recreational use benefits for the rule and subtracts 
them from the estimated annual compliance costs incurred by facilities 
subject to the final rule. The resulting ``net cost'' enables one to 
work backwards to estimate what the unmonetized non-use values would 
need to be (in terms of willingness-to-pay per household per year) in 
order for total annual benefits to equal annualized costs. Exhibit XII-
9 provides this assessment for the seven study regions. The exhibit 
shows benefits values using a 3 percent social discount rate. Use of a 
7% discount rate would produce somewhat higher breakeven numbers. 
Section XII.D.5 presents undiscounted benefits and benefits discounted 
using a 7 percent discount rate.

                           Exhibit XII-9.--Implicit Non-Use Value--Break-Even Analysis
                                                [Million; 2002$]
----------------------------------------------------------------------------------------------------------------
                                                                  Annual non-use                   Annual break-
                                                   Annual social     benefits        Number of     even non-use
         Study region a           Use benefits b      cost c       necessary to     households        WTP per
                                                                  break even d,g   (millions) e     household f
----------------------------------------------------------------------------------------------------------------
California......................            $3.0           $31.7           $28.7             8.1           $3.55
North Atlantic..................             1.4            13.3            11.9             3.9            3.02

[[Page 41664]]

 
Mid Atlantic....................            45.0            62.6            17.5             9.6            1.82
South Atlantic..................             7.1             9.0             1.9             3.8            0.50
Gulf of Mexico..................             6.9            22.8            15.9             5.4            2.92
Great Lakes.....................            14.1            58.7            44.6             8.6            5.17
Inland..........................             3.0           170.4           167.4            20.9            8.01
                                 -----------------
    Total for 554 facilities....            82.9           389.4           306.5            60.4           5.07
----------------------------------------------------------------------------------------------------------------
a Regional benefit and cost estimates are unweighted; total national estimates are sample-weighted and include
  Hawaii.
b Benefits are discounted using a 3 percent discount rate.
c The regional costs include only annual compliance costs incurred by facilities. The national cost includes the
  total social cost of the final rule (facility compliance costs and administrative costs).
d Annualized compliance costs minus annual use benefits.
e Millions of households, including anglers fishing in the region and households in abutting counties. From U.S.
  Census 2000 (BLS): http://factfinder.census.gov.
f Dollars per household per year that, when added to use benefits, would yield a total annual benefit (use plus
  non-use) equal to the annualized costs.
g Non-use benefits may also include unmonetized use benefits, i.e., improvements in bird watching.

    As shown in Exhibit XII-9, for total annual benefits to equal total 
annualized costs, non-use values per household would have to be $0.50 
in the South Atlantic region and $8.01 in the Inland region. At the 
national level, the annual willingness-to-pay per affected household 
would have to be $5.07 for total annual benefits to equal total 
annualized costs.
    While this approach of backing out the ``break-even'' non-use value 
per household does not answer the question of what non-use values might 
actually be for the final rule, these results do frame the question for 
policy-making decisions. The break-even approach poses the question: 
``Is the true per household willingness-to-pay for the non-use 
amenities (existence and bequest) associated with the final rule likely 
to be greater or less than the ``breakeven'' benefit levels displayed 
in Exhibit XII-9?'' Unfortunately, the existing body of empirical 
research is inadequate to answer this question on behalf of the nation 
as a whole, but EPA is providing the analysis to aid policy makers and 
the public in forming their own judgment.

XIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines a ``significant regulatory action'' 
as one that is likely to result in a rule that may:
    1. Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    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.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action.'' As 
such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations will be documented in 
the public record.

B. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this rule under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2060.02, or DCN 6-0001. Compliance with 
the applicable information collection requirements imposed under this 
final rule (see Sec. Sec.  122.21(r), 125.95, 125.96, 125.97, 125.98, 
125.99) is mandatory. Existing facilities are required to perform 
several data-gathering activities as part of the permit renewal 
application process. Today's final rule requires several distinct types 
of information collection as part of the NPDES renewal application. In 
general, the information will be used to identify which of the 
requirements in today's final rule apply to the existing facility, how 
the existing facility will meet those requirements, and whether the 
existing facility's cooling water intake structure reflects the best 
technology available for minimizing adverse environmental impact. 
Categories of data required by today's final rule follow.
     Source waterbody data for determining appropriate 
requirements to apply to the facility, evaluating ambient conditions, 
and characterizing potential for impingement and entrainment of all 
life stages of fish and shellfish by the cooling water intake 
structure;
     Intake structure and cooling water system data, consisting 
of intake structure design, cooling water system operational data and 
relationship of each intake to the cooling water system, and a facility 
water balance diagram, to determine appropriate requirements and 
characterize potential for impingement and entrainment of all life 
stages of fish and shellfish;
     Information on design and construction technologies 
implemented to ensure compliance with applicable requirements set forth 
in today's final rule; and
     Information on supplemental restoration measures proposed 
for use with design and construction technologies or alone to minimize 
adverse environmental impact.
    In addition to the information requirements of the permit renewal 
application, NPDES permits normally

[[Page 41665]]

specify monitoring and reporting requirements to be met by the 
permitted entity. Existing facilities that fall within the scope of 
this final rule would be required to perform biological monitoring for 
at least two years, and as required by the Director, to demonstrate 
compliance. Additional ambient water quality monitoring may also be 
required of facilities depending on the specifications of their 
permits. The facility is expected to analyze the results from its 
monitoring efforts and provide these results in a bi-annual status 
report to the permitting authority. Finally, facilities are required to 
maintain records of all submitted documents, supporting materials, and 
monitoring results for at least three years. (Note that the Director 
may require more frequent reporting and that records be kept for a 
longer period to coincide with the life of the NPDES permit.)
    All facilities carry out the activities necessary to fulfill the 
general information collection requirements. The estimated burden 
includes developing a water balance diagram that can be used to 
identify the proportion of intake water used for cooling, make-up, and 
process water. Facilities will also gather data (as required by the 
compliance alternative selected) to calculate the reduction in 
impingement mortality and entrainment of all life stages of fish and 
shellfish that would be achieved by the technologies and operational 
measures they select. The burden estimates include sampling, assessing 
the source waterbody, estimating the magnitude of impingement mortality 
and entrainment, and reporting results in a comprehensive demonstration 
study. For some facilities, the burden also includes conducting a pilot 
study to evaluate the suitability of the technologies and operational 
measures based on the species that are found at the site.
    Some of the facilities (those choosing to use restoration measures 
to maintain fish and shellfish) will need to prepare a plan documenting 
the restoration measures they implement and how they demonstrate that 
the restoration measures are effective. Restoration is a voluntary 
alternative. Since facilities would most likely choose restoration only 
if other alternatives are more costly or infeasible, EPA has not 
assessed facility burden for this activity. However, burden estimates 
have been included for the Director's review of restoration activities.
    Some facilities may choose to request a site-specific determination 
of best technology available because of costs significantly greater 
than those EPA considered in establishing the performance standards or 
because costs are significantly greater than the benefits of complying 
with the performance standards. These facilities must perform a 
comprehensive cost evaluation study and submit a site-specific 
technology plan characterizing the design and construction 
technologies, operational measures and/or restoration measures they 
have selected. In addition, facilities that request a site-specific 
determination because of costs significantly greater than the benefits 
must also perform a valuation of the monetized benefits of reducing 
impingement mortality and entrainment and an assessment of non-
monetized benefits. Site-specific determinations are voluntary. Since 
facilities would choose site-specific determinations only if other 
alternatives are more costly, EPA has not assessed a facility burden 
for these activities; however, EPA has incorporated burden into the 
activities that the Director will perform in reviewing site-specific 
information.
    The total average annual burden of the information collection 
requirements associated with today's final rule is estimated at 
1,700,392 hours. The annual average reporting and record keeping burden 
for the collection of information by facilities responding to the 
section 316(b) Phase II existing facility final rule is estimated to be 
5,428 hours per respondent (i.e.,, an annual average of 1,595,786 hours 
of burden divided among an anticipated annual average of 294 
facilities). The Director reporting and record keeping burden for the 
review, oversight, and administration of the rule is estimated to 
average 2,615 hours per respondent (i.e., an annual average of 104,606 
hours of burden divided among an anticipated 40 States on average per 
year).
    Respondent activities are separated into those activities 
associated with the NPDES permit application and those activities 
associated with monitoring and reporting after the permit is issued. 
The reason for this is that the permit cycle is every five years, while 
Information Collection Requests (ICRs) must be renewed every three 
years. Therefore, the application activities occur only once per 
facility during an ICR approval period, and so they are considered one-
time burden for the purpose of this ICR. By contrast, the monitoring 
and reporting activities that occur after issuance of the permit occur 
on an annual basis. The burden and costs are for the information 
collection, reporting, and recordkeeping requirements for the three-
year period beginning with the effective date of today's rule. 
Additional information collection requirements will occur after this 
initial three-year period as existing facilities continue to be issued 
permit renewals and such requirements will be counted in a subsequent 
information collection request. EPA does not consider the specific data 
that would be collected under this final rule to be confidential 
business information. However, if a respondent does consider this 
information to be confidential, the respondent may request that such 
information be treated as confidential. All confidential data will be 
handled in accordance with 40 CFR 122.7, 40 CFR Part 2, and EPA's 
Security Manual Part III, Chapter 9, dated August 9, 1976.
    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. EPA is amending the table in 
40 CFR Part 9 of currently approved OMB control numbers for various 
regulations to list the information requirements contained in this 
final rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., 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 the purposes of assessing the impacts 
of today's rule on

[[Page 41666]]

small entities, small entity is defined as: (1) A small business 
according to RFA default definitions for small business (based on Small 
Business Administration (SBA) size standards); (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's 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 applies to existing power producing facilities that employ a 
cooling water intake structure and are design to withdraw 50 million 
gallons per day (MGD) or more from waters of the United States for 
cooling purposes. EPA expects this final rule to regulate 25 small 
entities that own electric generators. We estimate that 17 of the small 
entities are governmental jurisdictions (i.e., 16 municipalities and 
one political subdivision), two are private businesses (i.e., one 
nonutility and one investor-owned entity), and six are not-for-profit 
enterprises (i.e., rural electric cooperative).
    Of the 25 small entities, one entity is estimated to incur 
annualized post-tax compliance costs of greater than three percent of 
revenues; eight are estimated to incur compliance costs of between one 
and three percent of revenues; and 16 small entities are estimated to 
incur compliance costs of less than one percent of revenues. Eleven 
small entities are estimated to incur no costs other than permitting 
and monitoring costs.
    Although this final rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce the impact of this rule on small entities. EPA has 
divided implementation of section 316(b) of the Clean Water Act (CWA) 
into three phases where the majority of small entities will be 
addressed in Phase III. Under the Phase III rule, EPA will convene a 
SBREFA panel that will evaluate impacts to small entities.

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 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with regulatory requirements.
    EPA estimates the total annualized (post-tax) costs of compliance 
for facilities subject to the final rule to be $249.5 million (2002$), 
of which $216.3 million is incurred by the private sector (including 
investor-owned utilities, nonutilities, and rural electric 
cooperatives) and $23.1 million is incurred by State and local 
governments that operate in-scope facilities.\59\ Additionally, 
permitting authorities incur $4.1 million to administer the rule, 
including labor costs to write permits and to conduct compliance 
monitoring and enforcement activities. EPA estimates that the highest 
undiscounted post-tax cost incurred by the private sector in any one 
year is approximately $419.1 million in 2009. The highest undiscounted 
cost incurred by the government sector in any one year is approximately 
$43.5 million in 2008. Thus, EPA has determined that this rule contains 
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. Accordingly, EPA has prepared a written 
statement under Sec.  202 of the UMRA, which is summarized as follows. 
See Economic and Benefits Analysis, Chapter B5, UMRA Analysis, for 
detailed information.
---------------------------------------------------------------------------

    \59\ In addition, 14 facilities owned by Tennessee Valley 
Authority (TVA), a Federal entity, incur $10.1 million in compliance 
costs. The costs incurred by the Federal government are not included 
in this section.
---------------------------------------------------------------------------

1. Summary of Written Statement
a. Authorizing Legislation
    This final rule is issued under the authority of sections 101, 301, 
304, 306, 308, 316, 401, 402, 501, and 510 of the Clean Water Act 
(CWA), 33 U.S.C. 1251, 1311, 1314, 1316, 1318, 1326, 1341, 1342, 1361, 
and 1370. This rule partially fulfills the obligations of the U.S. 
Environmental Protection Agency (EPA) under a consent decree in 
Riverkeeper, Inc. et al. v. Whitman, United States District Court, 
Southern District of New York, No. 93 Civ. 0314. See section III of 
this preamble for detailed information on the legal authority of this 
regulation.
b. Cost-Benefit Analysis
    The final rule is expected to have total annualized pre-tax 
(social) costs of $389.2 million (2002$), including direct costs 
incurred by facilities and implementation costs incurred by State and 
Federal governments. The total use benefits of the rule are estimated 
to be $82.9 million. EPA was not able to estimate the monetary value of 
non-use benefits resulting from the rule, although the Agency believes 
non-use benefits may be significant. Thus, the total social costs 
exceed the total use benefits of the rule by $306.3 million, and the 
benefit-cost ratio, calculated by dividing total use benefits by total 
social costs, is 0.2. EPA notes that these analyses are based on a 
comparison of a partial measure of benefits with a complete measure of 
costs; therefore, the results must be interpreted with caution. For a 
more detailed comparison of the costs and benefits of the final rule, 
refer to section XII.E of this preamble.
    EPA notes that States may be able to use existing sources of 
financial assistance to revise and implement the final rule. Section 
106 of the Clean Water Act authorizes EPA to award grants to States, 
Tribes, intertribal consortia, and interstate agencies for 
administering programs for the prevention, reduction, and elimination 
of water pollution. These grants may be used for various activities to 
develop

[[Page 41667]]

and carry out a water pollution control program, including permitting, 
monitoring, and enforcement. Thus, State and Tribal NPDES permit 
programs represent one type of State program that can be funded by 
section 106 grants.
c. Macro-Economic Effects
    EPA estimates that this regulation will not have an effect on the 
national economy, including productivity, economic growth, employment 
and job creation, and international competitiveness of U.S. goods and 
services. Macroeconomic effects on the economy are generally not 
considered to be measurable unless the total economic impact of a rule 
reaches at least 0.25 percent to 0.5 percent of Gross Domestic Product 
(GDP). In 2002, U.S. GDP was $10.4 trillion (2002$), according to the 
U.S. Bureau of Labor Statistics. Thus, in order to be considered 
measurable, the final rule would have to generate costs of at least $26 
billion to $52 billion. Since EPA estimates the final rule will 
generate total annual pre-tax costs of only $389.2 million, the Agency 
does not believe that the final rule will have an effect on the 
national economy.
d. Summary of State, Local, and Tribal Government Input
    EPA consulted with State governments and representatives of local 
governments in developing the regulation. The outreach activities are 
discussed in section III of this preamble.
e. Least Burdensome Option
    EPA considered and analyzed several alternative regulatory options 
to determine the best technology available for minimizing adverse 
environmental impact. These regulatory options are discussed in the 
proposed rule at 67 FR 17154-17168, as well as in section VII of this 
preamble. These options included a range of technology-based approaches 
(e.g., reducing intake flow to a level commensurate with the use of a 
closed-cycle cooling system for all facilities; facilities located on 
certain waterbody types; facilities located on certain waterbody types 
that withdraw a specified percentage of flow; and the use of 
impingement and entrainment controls at all facilities). EPA also 
included consideration of at least four distinct site-specific options, 
including several proposed by industry. As discussed in detail in 
section VII., EPA did not select these options because ultimately they 
are not the most cost-effective among the options that fulfill the 
requirements of section 316(b). EPA selected the final rule because it 
meets the requirement of section 316(b) of the CWA that the location, 
design, construction, and capacity of cooling water intake structures 
reflect the best technology available for minimizing adverse 
environmental impact, and it is economically practicable. EPA believes 
the final rule reflects the most cost-effective and flexible approach 
among the options considered. By providing five compliance alternatives 
the final rule offers Phase II existing facilities a high degree of 
flexibility in selecting the most cost-effective approach to meeting 
section 316(b) requirements. Under the rule, these facilities can 
demonstrate that existing flow or CWIS technologies fulfill section 
316(b), identify design and control technologies, and/or use 
operational measures or restoration measures to fulfill the rule 
requirements. The final rule also ensures that any applicable 
requirements are economically practicable through the inclusion of the 
site-specific compliance alternative at Sec.  125.94(a)(5). EPA further 
notes that the compliance alternative specified in Sec.  125.94(a)(4) 
and 125.99(a) and (b) was included in part to provide additional 
flexibility to Phase II existing facilities as well as to reduce the 
burden of determining, implementing, and administering section 316(b) 
requirements among all relevant parties. Finally, the Agency believes 
that the rule extends additional flexibility to States by providing 
that where a State has adopted alternative regulatory requirements that 
achieve environmental performance comparable to that required under the 
rule, the Administrator will approve such alternative requirements.
2. Impact on Small Governments
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. EPA estimates that 17 of the 62 government-owned 
facilities subject to the final rule are owned by small governments 
(i.e., governments with a population of less than 50,000). The total 
annualized post-tax compliance cost for all small government-owned 
facilities incurring costs under the final rule is $5.4 million, or 
approximately $316,000 per facility. The highest annualized compliance 
costs for a small government-owned facility is $1.3 million. These 
costs are lower than the corresponding costs for large governments and 
private entities. EPA therefore concludes that these costs do not 
significantly or uniquely affect small governments, and that today's 
rule is not subject to the requirement of section 203 of 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. Rather, this rule would result 
in minimal administrative costs on States that have an authorized NPDES 
program; would result in minimal costs to States and local government 
entities that own facilities subject to the regulation; it maintains 
the existing relationship between the national government and the 
States in the administration of the NPDES program; and it preserves the 
existing distribution of power and responsibilities among various 
levels of government. Thus, Executive Order 13132 does not apply to 
this rule.
    The national cooling water intake structure requirements will be 
implemented through permits issued under the NPDES program. Forty-five 
States and the Virgin Islands are currently authorized pursuant to 
section 402(b) of the CWA to implement the NPDES program. In States not 
authorized to implement the NPDES program, EPA issues NPDES permits. 
Under the CWA, States are not required to become authorized to 
administer the NPDES program. Rather, such authorization (and potential 
funding to support administration) is available to States if they 
operate their programs in a manner consistent with section 402(b) and 
applicable regulations. Generally, these provisions require that State 
NPDES programs include requirements that are as stringent as Federal 
program requirements. States retain the ability to implement 
requirements that are broader in scope or more stringent than Federal 
requirements. (See section 510 of the CWA). EPA expects an average 
annual burden of 104,606 hours with total average annual cost of $4.8 
million

[[Page 41668]]

for States to collectively administer this rule during the first three 
years after promulgation.
    EPA has identified 62 Phase II existing facilities that are owned 
by State or local government entities. The estimated average annual 
compliance cost incurred by these facilities is $372,000 per facility.
    Today's rule would not have substantial direct effects on either 
authorized or nonauthorized States or on local governments because it 
would not change how EPA and the States and local governments interact 
or their respective authority or responsibilities for implementing the 
NPDES program. Today's rule establishes national requirements for Phase 
II existing facilities with cooling water intake structures. NPDES-
authorized States that currently do not comply with the final 
regulations based on today's rule will need to amend their regulations 
or statutes to ensure that their NPDES programs are consistent with 
Federal section 316(b) requirements. See 40 CFR 123.62(e).
    For purposes of this rule, the relationship and distribution of 
power and responsibilities between the Federal government and the 
States and local governments are established under the CWA (e.g., 
sections 402(b) and 510), and nothing in this rule alters this 
established relationship and distribution of power and 
responsibilities. Thus, the requirements of section 6 of the Executive 
Order do not apply to this rule.
    Although Executive Order 13132 does not apply to this rule, EPA did 
consult with representatives of State and local governments in 
developing this rule. EPA also met with the Association of State and 
Interstate Water Pollution Control Administrators (ASIWPCA) and, with 
the assistance of ASIWPCA, conducted a conference call in which 
representatives from 17 States or interstate organizations 
participated. A summary of consultation activities is provided in 
section III of this preamble. In the spirit of Executive Order 13132, 
and consistent with EPA policy to promote communications between EPA 
and State and local governments, EPA also specifically solicited 
comments on the proposed rule from State and local officials. A summary 
of the concerns raised during that consultation and subsequent public 
comment periods and EPA's response to those concerns is provided in 
section VIII of this preamble and in the response to comment document 
in the record.

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'' are 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 the distribution of power and responsibilities 
between Federal government and Indian tribes.''
    This rule does not have Tribal implications. It will not have 
substantial direct effects on Tribal governments, on the relationship 
between the Federal government and the Indian Tribes, or the 
distribution of power and responsibilities between the Federal 
government and Indian Tribes as specified in Executive Order 13175. The 
national cooling water intake structure requirements will be 
implemented through permits issued under the NPDES program. No Tribal 
governments are currently authorized pursuant to section 402(b) of the 
CWA to implement the NPDES program. In addition, EPA's analyses show 
that no facility subject to this rule is owned by Tribal governments 
and thus this rule does not affect Tribes in any way in the foreseeable 
future. Thus, Executive Order 13175 does not apply to this rule.
    Nevertheless, in the spirit of Executive Order 13175 and consistent 
with EPA policy to promote communications between EPA and Tribal 
governments, EPA solicited comment on the proposed rule from all 
stakeholders. EPA did not receive any comments from Tribal governments.

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

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (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 may 
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.
    Executive Order 13405 does not apply to this rule because the rule 
does not concern an environmental health or safety risk that EPA has 
reason to believe may have a disproportionate effect on children. This 
rule establishes requirements for cooling water intake structures to 
protect aquatic organisms.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, (``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001)) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. The final 
rule does not contain any compliance requirements that will:
     Reduce crude oil supply in excess of 10,000 barrels per 
day;
     Reduce fuel production in excess of 4,000 barrels per day;
     Reduce coal production in excess of 5 million tons per 
day;
     Reduce electricity production in excess of 1 billion 
kilowatt hours per day or in excess of 500 megawatts of installed 
capacity;
     Increase energy prices in excess of 10 percent;
     Increase the cost of energy distribution in excess of 10 
percent;
     Significantly increase dependence on foreign supplies of 
energy; or
     Have other similar adverse outcomes, particularly 
unintended ones.
    EPA analyzed the final rule for each of these potential effects and 
found that this rule will not lead to any adverse outcomes. Based on 
the analyses, EPA concludes that this final rule will have minimal 
energy effects at a national and regional level. As a result, EPA did 
not prepare a Statement of Energy Effects. For more detail on the 
potential energy effects of this rule, see section XI.B.1 of this 
preamble or the Economic and Benefits Analysis for the Final Section 
316(b) Phase II Existing Facilities Rule.

I. National Technology Transfer and Advancement Act

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (NTTAA), Pub. L. No. 
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

[[Page 41669]]

would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standard bodies. The NTTAA directs EPA to provide Congress, through the 
Office of Management and Budget (OMB), explanations when the Agency 
decides not to use available and applicable voluntary consensus 
standards. This 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. E.O. 12898 states 
that each Federal agency must conduct its programs, policies, and 
activities that substantially affect human health or the environment in 
a manner that ensures such programs, policies, and activities do not 
have the effect of excluding persons (including populations) from 
participation in, denying persons (including populations) the benefits 
of, or subjecting persons (including populations) to discrimination 
under such programs, policies, and activities because of their race, 
color, or national origin.
    Today's final rule would require that the location, design, 
construction, and capacity of cooling water intake structures (CWIS) at 
Phase II existing facilities reflect the best technology available for 
minimizing adverse environmental impact. For several reasons, EPA does 
not expect that this final rule would have an exclusionary effect, deny 
persons the benefits of participating in a program, or subject persons 
to discrimination because of their race, color, or national origin.
    To assess the impact of the rule on low-income and minority 
populations, EPA calculated the poverty rate and the percentage of the 
population classified as non-white for populations living within a 50-
mile radius of each of the 543 in-scope facilities for which survey 
data are available. The results of the analysis, presented in the 
Economic Benefits Analysis, show that the populations affected by the 
in-scope facilities have poverty levels and racial compositions that 
are quite similar to the U.S. population as a whole. A relatively small 
subset of the facilities are located near populations with poverty 
rates (23 of 543, or 4.2%), or non-white populations (105 of 543, or 
19.3%), or both (13 of 543, or 2.4%) that are significantly higher than 
national levels. Based on these results, EPA does not believe that this 
rule will have an exclusionary effect, deny persons the benefits of the 
NPDES program, or subject persons to discrimination because of their 
race, color, or national origin.
    In fact, because EPA expects that this final rule would help to 
preserve the health of aquatic ecosystems located in reasonable 
proximity to Phase II existing facilities, it believes that all 
populations, including minority and low-income populations, would 
benefit from improved environmental conditions as a result of this 
rule. Under current conditions, EPA estimates over 1.5 billion fish 
(expressed as age 1 equivalents) of recreational and commercial species 
are lost annually due to impingement and entrainment at the inscope 
Phase II existing facilities. Under the final rule, more than 0.5 
billion individuals of these commercially and recreationally sought 
fish species (age 1 equivalents) will now survive to join the fishery 
each year. These additional fish will provide increased opportunities 
for subsistence anglers to increase their catch, thereby providing some 
benefit to low income households located near regulation-impacted 
waters.

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 recognizes the biological sensitivity of tidal 
rivers, estuaries, oceans, and the Great Lakes and their susceptibility 
to adverse environmental impact from cooling water intake structures. 
This rule provides the most stringent requirements to minimize adverse 
environmental impact for cooling water intake structures located on 
these types of waterbodies, including potential reduction of intake 
flows to a level commensurate with that which can be attained by a 
closed-cycle recirculating cooling system for facilities that withdraw 
certain proportions of water from estuaries, tidal rivers, and oceans.
    EPA expects that this rule will reduce impingement mortality and 
entrainment at facilities with design intake flows of 50 MGD or more. 
The rule would afford protection of aquatic organisms at individual, 
population, community, or ecosystem levels of ecological structure. 
Therefore, EPA expects today's rule would advance the objective of the 
Executive Order to protect marine areas.

L. Congressional Review Act

    The Congressional Review Act, 5. U.S.C. 801 et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act (SBREFA) 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 
can not take effect until 60 days after it is published in the Federal 
Register. This action is a ``major rule'' as defined by 5 U.S.C. 
804(2). This will be effective September 7, 2004.

    Dated: February 16, 2004.
Michael O. Leavitt,
Administrator.

    Note: The following appendices A and B will not appear in the 
Code of Federal Regulations.

Appendix A

[[Page 41670]]



 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      Annualized
                                                                                                      capital \3\   Net revenue                              Performance
                                              EPA assumed                                  Post        + net O&M    losses from                 Annualized    standards       EPA       Design
                                                design     Capital cost  Baseline O&M  construction    using EPA        net       Pilot study  downtime and    on which     modeled      flow
  Facility ID            Intake ID           intake flow,       ($)       annual cost   O&M  annual     design     construction   costs  ($)    pilot study    EPA cost   technology  adjustment
                                              gpm (Xepa)                      ($)        cost  ($)    intake flow     downtime                   costs 2,4    estimates       code     slope (m)
                                                  ($)                                                 \2\ (yepa)        ($)                         ($)       are based                   \1\
                                                                                                          ($)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Column 1        Column 2...................      Column 3      Column 4      Column 5      Column 6      Column 7      Column 8      Column 9     Column 10   Column 11    Column 12   Column 13
---------------
AUT0001.......  ...........................       401,881       322,884       699,866       795,393       141,498  ............  ............  ............         I&E            2      0.8639
AUT0002.......  ...........................       549,533     5,750,259        68,489       104,063       854,282     6,650,155       290,459       559,082         I&E           12      3.6581
AUT0004.......  ...........................       239,107       528,427        30,725       104,458       148,969  ............  ............  ............           I            1      1.1604
AUT0011.......  ...........................       453,758       967,675        55,545       193,660       275,890  ............  ............  ............           I            1      1.1604
AUT0012.......  ...........................     2,018,917    48,835,329       360,813       989,876     7,582,115   110,716,357     4,933,578     9,315,779         I&E           12      3.6581
AUT0014.......  ...........................       572,383     2,732,729        91,057       110,893       408,915  ............       276,073        22,022         I&E           11      0.7352
AUT0015.......  ...........................     1,296,872       510,784  ............       134,070       206,794  ............  ............  ............           I            5      0.1286
AUT0016.......  ...........................       301,127        41,613  ............        28,195        34,120  ............  ............  ............           I            5      0.1286
AUT0019.......  ...........................       848,784    11,094,343       271,045       994,876     2,303,416  ............  ............  ............           I            1      1.1604
AUT0020.......  ...........................       207,514     1,517,779        34,859        42,089       223,327  ............       153,333        12,231         I&E           11      0.7352
AUT0021.......  ...........................       267,138     1,187,727        65,395       263,140       366,851  ............       150,000        11,965         I&E            2      0.8639
AUT0024.......  ...........................       639,702        72,402  ............        47,164        57,472  ............  ............  ............           I            5      0.1286
AUT0027.......  ...........................       404,214     2,362,864       147,563       532,881       721,737  ............  ............  ............           I            1      1.1604
AUT0044.......  ...........................       457,869       183,653  ............        57,997        84,145  ............  ............  ............           I            5      0.1286
AUT0049.......  ...........................       820,866     6,080,054       196,361       797,241     1,466,543  ............       204,745        16,332         I&E            2      0.8639
AUT0051.......  ...........................       348,052    11,832,011        17,181        50,842     1,718,273  ............  ............  ............           I            4      2.5787
AUT0053.......  ...........................       147,762       454,296        27,346       108,078       145,413  ............  ............  ............         I&E            2      0.8639
AUT0057.......  ...........................        56,391       271,166        19,811        65,525        84,322  ............  ............  ............           I            1      1.1604
AUT0058.......  ...........................       624,376     8,582,766        68,231       225,908     1,379,670     7,092,806       867,072       640,749         I&E           12      3.6581
AUT0064.......  ...........................       553,145     3,039,302       195,656       695,636       932,709  ............  ............  ............           I            1      1.1604
AUT0066.......  ...........................        65,571     2,006,184        80,531        63,685       268,790    23,985,660       150,000     1,944,883         I&E            4      2.5787
AUT0078.......  ...........................       288,792     5,683,876       267,577     1,083,987     1,625,667  ............       574,212        45,804         I&E            2      0.8639
AUT0084.......  ...........................     2,100,000     2,976,122     3,003,550     3,318,577       738,760  ............       150,331        11,992         I&E            2      0.8639
AUT0085.......  ...........................       975,261    23,279,870       341,127       452,608     3,426,011    52,842,026     2,351,844     4,445,953         I&E            4      2.5787
AUT0092.......  ...........................     2,786,349       929,777  ............       269,122       401,501  ............  ............  ............           I            5      0.1286
AUT0095.......  ...........................        67,369        55,826       120,772       140,422        27,598  ............  ............  ............         I&E            2      0.8639
AUT0106.......  ...........................       325,449     1,104,684        55,757       223,858       325,383  ............       150,000        11,965         I&E            2      0.8639
AUT0110.......  ...........................       551,114     6,445,617        70,141       104,066       951,636     5,297,741       651,167       478,869         I&E           12      3.6581
AUT0120.......  ...........................       207,333     2,085,862        55,736       225,656       466,900  ............       210,724        16,809         I&E            2      0.8639
AUT0123.......  ...........................        62,226       106,975         7,021        20,122        28,333  ............  ............  ............           I            1      1.1604
AUT0127.......  ...........................       104,672       573,136        34,651       118,506       165,457  ............  ............  ............           I            1      1.1604
AUT0130.......  ...........................       929,723     8,127,384       402,025     1,628,672     2,383,804  ............       821,067        65,496         I&E            2      0.8639
AUT0131.......  ...........................       492,987     3,299,931       195,321       694,407       968,921  ............  ............  ............           I            1      1.1604
AUT0134.......  ...........................        99,252     3,334,593         8,170        35,218       501,819       238,035  ............        19,182           I            3      3.4562
AUT0137.......  ...........................       401,222     1,916,441       117,385       475,099       630,572  ............       193,608        15,444         I&E            2      0.8639
AUT0139.......  ...........................       369,074       117,095  ............        49,945        66,617  ............  ............  ............           I            5      0.1286
AUT0142.......  ...........................       407,669     9,461,494        66,798        78,036     1,358,342     3,421,735       955,845       351,992         I&E           14      6.9559
AUT0143.......  ...........................       289,294       971,645        50,004       200,412       288,748  ............       150,000        11,965         I&E            2      0.8639
AUT0146.......  ...........................       213,207     1,618,126        88,506       313,588       455,467  ............  ............  ............           I            1      1.1604
AUT0148.......  ...........................     1,036,476    12,443,192  ............       288,984     2,060,615  ............  ............  ............         I&E            9       5.973
AUT0149.......  ...........................       848,079       109,389  ............        58,838        74,413  ............  ............  ............           I            5      0.1286
AUT0151.......  ...........................       482,911     1,465,485        95,774       340,264       453,142  ............  ............  ............           I            1      1.1604
AUT0161.......  ...........................       555,680     1,600,167       101,254       360,434       487,008  ............  ............  ............           I            1      1.1604
AUT0168.......  ...........................       329,758     5,156,763        39,196        51,388       746,399       492,266       260,480        60,448         I&E           12      3.6581
AUT0171.......  ...........................     1,189,016    14,989,478       120,512       398,517     2,412,170    15,890,363  ............     1,280,547         I&E            7       2.504
AUT0174.......  ...........................     1,341,997       934,469     1,387,449     1,537,156       282,755  ............       150,000        11,965         I&E            2      0.8639
AUT0175.......  ...........................       258,008     2,505,868       134,658       484,461       706,582  ............  ............  ............           I            1      1.1604
AUT0176.......  ...........................     1,652,395     6,892,691       425,370     1,533,553     2,089,548  ............  ............  ............           I            1      1.1604
AUT0183.......  ...........................       118,504       196,689         7,303        21,121        41,823  ............  ............  ............           I            1      1.1604
AUT0185.......  ...........................       810,911        97,503  ............        56,756        70,638  ............  ............  ............           I            5      0.1286
AUT0187.......  ...........................     1,242,691       257,332  ............       107,659       144,297  ............  ............  ............           I            5      0.1286
AUT0190.......  ...........................       511,950    27,779,896       616,589       191,870     3,530,513  ............  ............  ............         I&E            9       5.973
AUT0191.......  ...........................       692,335    19,255,865       184,161        66,491     2,623,932  ............  ............  ............         I&E            9       5.973

[[Page 41671]]

 
AUT0192.......  ...........................       359,686       959,625        71,963       253,183       317,849  ............  ............  ............           I            1      1.1604
AUT0193.......  ...........................     1,006,084    19,112,665        90,728       323,635     2,954,121     3,278,888  ............       264,234           I            3      3.4562
AUT0196.......  ...........................       230,120       374,975  ............        10,672        64,060  ............  ............  ............           I            8      0.3315
AUT0197.......  ...........................       407,061     4,773,876       248,548       891,410     1,322,554  ............  ............  ............           I            1      1.1604
AUT0202.......  ...........................     2,080,399   106,025,028       477,625       769,048    15,387,001  ............  ............  ............         I&E            9       5.973
AUT0203.......  ...........................     1,083,174     4,847,332       232,706       851,244     1,308,689  ............  ............  ............           I            1      1.1604
AUT0205.......  ...........................       313,218       720,557        37,147       127,449       192,893  ............  ............  ............         I&E            1      1.1604
AUT0208.......  ...........................       220,683     3,140,556        27,181        51,205       471,169     3,544,915  ............       285,672         I&E            4      2.5787
AUT0222.......  ...........................       156,464       299,274  ............         9,554        52,164  ............  ............  ............           I            8      0.3315
AUT0227.......  ...........................        82,468       523,999        30,107       102,249       146,748  ............  ............  ............           I            1      1.1604
AUT0228.......  ...........................       147,594       837,743        41,023       163,811       242,064  ............  ............  ............         I&E            2      0.8639
AUT0229.......  ...........................       483,349     1,784,794        87,496       391,634       558,253  ............  ............  ............         I&E            2      0.8639
AUT0238.......  ...........................       376,148       757,400        51,856       180,342       236,323  ............  ............  ............           I            1      1.1604
AUT0242.......  ...........................     1,113,045     8,239,161       291,327     1,039,947     1,921,691  ............  ............  ............           I            1      1.1604
AUT0244.......  ...........................        49,980       426,844        22,868        76,413       114,318  ............  ............  ............           I            1      1.1604
AUT0245.......  ...........................       491,302     1,459,999        50,879        61,192       218,185  ............       150,000        11,965         I&E           11      0.7352
AUT0254.......  ...........................       145,838       353,928        22,339        74,527       102,580  ............  ............  ............           I            1      1.1604
AUT0255.......  ...........................       194,919       258,805  ............        10,232        47,080  ............  ............  ............           I            8      0.3315
AUT0261.......  ...........................       201,229       943,433        57,335       230,290       307,278  ............       150,000        11,965         I&E            2      0.8639
AUT0264.......  ...........................       840,000    21,384,690     1,502,211       185,672     1,728,160    43,525,468     2,160,384     3,679,892         I&E           12      3.6581
AUT0266.......  ...........................       653,994       139,380       307,951       351,075        62,969  ............  ............  ............         I&E            2      0.8639
AUT0268.......  ...........................       712,677     2,998,753       114,173       417,470       730,253  ............  ............  ............           I            1      1.1604
AUT0273.......  ...........................       173,689       994,534        52,039       208,703       298,263  ............       150,000        11,965         I&E            2      0.8639
AUT0277.......  ...........................        88,831     1,192,106        45,779        51,021       174,971       186,802  ............        15,054         I&E            4      2.5787
AUT0278.......  ...........................     1,642,492     6,410,550       771,895       257,586       398,409  ............       647,624        51,660         I&E           11      0.7352
AUT0284.......  ...........................       728,495     3,743,165       208,370       742,487     1,067,059  ............  ............  ............           I            1      1.1604
AUT0292.......  ...........................       556,596     2,227,636        99,379       350,087       567,874  ............  ............  ............           I            1      1.1604
AUT0295.......  ...........................       359,098     3,584,905        53,365       114,232       571,276     5,005,800  ............       403,399         I&E            4      2.5787
AUT0297.......  ...........................       184,293     1,172,223        63,592       255,790       359,096  ............       150,000        11,965         I&E            2      0.8639
AUT0298.......  ...........................       897,819       100,769  ............        61,625        75,972  ............  ............  ............           I            5      0.1286
AUT0299.......  ...........................       864,873     9,012,107       150,709       127,282     1,259,694    15,622,548       227,612     1,277,121         I&E           12      3.6581
AUT0302.......  ...........................        71,413        91,562         6,933        19,813        25,916  ............  ............  ............           I            1      1.1604
AUT0305.......  ...........................       762,197    42,822,242       146,012       281,593     6,232,505    49,751,104     4,326,108     4,354,352         I&E           14      6.9559
AUT0308.......  ...........................       394,361     3,381,768       151,364        77,961       408,085     3,407,223  ............       274,576         I&E            7       2.504
AUT0309.......  ...........................       789,860        81,433  ............        55,577        67,171  ............  ............  ............           I            5      0.1286
AUT0314.......  ...........................     1,039,315     2,438,597       134,759       484,839       697,281  ............  ............  ............           I            1      1.1604
AUT0319.......  ...........................       468,117     1,326,662        88,025       355,386       456,248  ............       150,000        11,965         I&E            2      0.8639
AUT0321.......  ...........................       669,493     2,092,630        88,910       107,698       316,732  ............       150,000        11,965         I&E           11      0.7352
AUT0331.......  ...........................       178,562        24,860  ............        21,328        24,867  ............  ............  ............           I            5      0.1286
AUT0333.......  ...........................       336,448       786,807        46,794       162,104       227,333  ............  ............  ............           I            1      1.1604
AUT0337.......  ...........................     1,110,944       131,046  ............        73,566        92,224  ............  ............  ............           I            5      0.1286
AUT0341.......  ...........................       405,256     2,429,275       115,249       412,169       642,794  ............  ............  ............           I            1      1.1604
AUT0345.......  ...........................       610,223     5,103,322       267,506       952,013     1,411,106  ............  ............  ............           I            1      1.1604
AUT0349.......  ...........................     2,429,925     8,146,829       424,696     1,514,477     2,249,706  ............  ............  ............           I            1      1.1604
AUT0351.......  ...........................       301,024     6,389,631        42,269        99,196       966,667       700,911  ............        56,484         I&E            3      3.4562
AUT0358.......  ...........................       210,439     2,170,195       117,833       421,759       612,913  ............  ............  ............           I            1      1.1604
AUT0361.......  ...........................       433,165     7,652,621        59,105       140,320     1,170,775       893,934  ............        72,039         I&E            3      3.4562
AUT0362.......  ...........................       312,830     1,566,464        51,821       185,883       357,091  ............  ............  ............           I            1      1.1604
AUT0364.......  ...........................       505,137     5,447,440       170,196       611,090     1,216,487  ............  ............  ............           I            1      1.1604
AUT0365.......  ...........................       140,093       445,526        29,331       116,166       150,268  ............  ............  ............         I&E            2      0.8639
AUT0368.......  ...........................        83,406     2,715,938       146,752       529,832       769,768  ............  ............  ............           I            1      1.1604
AUT0370.......  ...........................       322,374     1,816,861        79,915       289,868       468,633  ............  ............  ............           I            1      1.1604
AUT0379.......  ...........................       351,933        41,890  ............        31,041        37,006  ............  ............  ............           I            5      0.1286
AUT0381.......  ...........................        50,143       960,912         9,964        22,083       148,931       506,182  ............        40,791         I&E            4      2.5787
AUT0384.......  ...........................       146,511        66,229        91,020       104,211        22,620  ............  ............  ............         I&E            2      0.8639
AUT0385.......  ...........................       130,966     1,823,217        20,420        25,983       265,149     1,445,463  ............       116,485         I&E            4      2.5787
AUT0387.......  ...........................       576,057     5,283,933       122,322       496,655     1,126,646  ............       533,808        42,581         I&E            2      0.8639
AUT0398.......  ...........................       537,402     6,842,592        63,631        75,697       986,297     6,440,309  ............       519,001         I&E            4      2.5787
AUT0399.......  ...........................       140,486       232,496  ............         9,212        42,314  ............  ............  ............           I            8      0.3315
AUT0401.......  ...........................       613,529       578,957  ............        72,110       154,541  ............  ............  ............           I            5      0.1286
AUT0404.......  ...........................       291,400     4,124,975        44,642        51,995       594,657     3,259,312  ............       262,656         I&E            4      2.5787
AUT0408.......  ...........................        73,728       900,969        13,020        49,057       164,315       803,968  ............        64,789         I&E            4      2.5787
AUT0416.......  ...........................       143,562        41,835        96,659       112,954        22,251  ............  ............  ............         I&E            2      0.8639
AUT0423.......  ...........................       564,501    29,714,518       122,524       248,148     4,356,303  ............  ............  ............         I&E            9       5.973
AUT0427.......  ...........................       148,668       291,697  ............         9,392        50,923  ............  ............  ............           I            8      0.3315
AUT0431.......  ...........................       143,775       356,208        20,913        69,450        99,253  ............  ............  ............           I            1      1.1604

[[Page 41672]]

 
AUT0434.......  ...........................       400,472       763,363        40,353       138,952       207,284  ............  ............  ............           I            1      1.1604
AUT0435.......  ...........................       183,306       483,907        27,166       107,346       149,077  ............  ............  ............         I&E            2      0.8639
AUT0441.......  ...........................       108,296       276,983        17,492        57,275        79,220  ............  ............  ............           I            1      1.1604
AUT0446.......  ...........................       278,043     3,528,075        28,547       111,202       584,973     1,404,150  ............       113,155         I&E            4      2.5787
AUT0449.......  ...........................       487,640     1,738,410       110,263       393,700       530,948  ............  ............  ............           I            1      1.1604
AUT0472.......  ...........................       239,620       218,958       453,683       511,926        89,417  ............  ............  ............         I&E            2      0.8639
AUT0476.......  ...........................       233,631       489,074        27,565        93,169       135,237  ............  ............  ............           I            1      1.1604
AUT0483.......  ...........................     1,146,722     2,715,801       112,654       136,742       410,757  ............       274,363        21,886         I&E           11      0.7352
AUT0489.......  ...........................       211,629     1,477,232        84,570       299,177       424,931  ............  ............  ............           I            1      1.1604
AUT0490.......  ...........................       405,350     3,527,610        73,321        78,027       506,958     3,548,991  ............       286,000         I&E            4      2.5787
AUT0493.......  ...........................       257,137     1,429,134        51,159       206,956       359,274  ............       150,000        11,965         I&E            2      0.8639
AUT0496.......  ...........................       603,432     1,649,804        57,304       206,130       383,721  ............  ............  ............           I            1      1.1604
AUT0499.......  ...........................        45,374       171,551         9,346        48,606        63,685  ............  ............  ............         I&E            2      0.8639
AUT0501.......  ...........................       346,213       115,781       205,027       230,840        42,297  ............  ............  ............         I&E            2      0.8639
AUT0513.......  ...........................     1,296,772    27,395,451       170,929       603,316     4,332,883    36,923,245  ............     2,975,512         I&E            4      2.5787
AUT0517.......  ...........................        98,553     1,040,022        20,976        72,416       199,516  ............  ............  ............           I            1      1.1604
AUT0518.......  ...........................       193,413       435,346        28,467        96,388       129,905  ............  ............  ............           I            1      1.1604
AUT0522.......  ...........................       237,692       856,098        40,165       162,010       243,734  ............  ............  ............         I&E            2      0.8639
AUT0523.......  ...........................       608,373     7,741,521  ............       189,045     1,291,263  ............  ............  ............         I&E            9       5.973
AUT0529.......  ...........................       422,181     3,402,665       144,308       530,442       870,598  ............  ............  ............           I            1      1.1604
AUT0534.......  ...........................        70,565       230,241        17,175        56,150        71,756  ............  ............  ............           I            1      1.1604
AUT0535.......  ...........................       196,084     3,706,283        25,082        66,100       568,710       604,316  ............        48,700         I&E            3      3.4562
AUT0539.......  ...........................     1,056,137    13,978,398       183,682       342,369     2,148,896     2,343,730     1,412,165       301,520         I&E           12      3.6581
AUT0541.......  ...........................       117,759     3,346,437       108,327        37,393       405,523    27,152,758       169,037     2,201,627         I&E           12      3.6581
AUT0547.......  ...........................       780,279     9,747,498       118,281       129,393     1,398,937    17,882,815  ............     1,441,112         I&E            4      2.5787
AUT0551.......  ...........................       295,707       823,114        30,125        35,820       122,888  ............       150,000        11,965         I&E           11      0.7352
AUT0552.......  ...........................     1,226,625       133,029  ............        80,047        98,987  ............  ............  ............           I            5      0.1286
AUT0553.......  ...........................        71,128       230,549        10,379        32,023        54,468  ............  ............  ............           I            1      1.1604
AUT0554.......  ...........................       429,991     8,840,925       249,963       170,468     1,179,253     1,498,242  ............       120,738         I&E            3      3.4562
AUT0557.......  ...........................        37,500        20,033  ............        19,881        22,734  ............  ............  ............           I            5      0.1286
AUT0564.......  ...........................     1,129,749    14,903,816       170,408       396,749     2,348,309    15,236,406  ............     1,227,847         I&E            7       2.504
AUT0567.......  ...........................       441,177     5,817,871        67,488        77,963       838,809     4,139,441  ............       333,583         I&E            4      2.5787
AUT0568.......  ...........................       584,525     2,308,321       342,703       382,141       368,091  ............       150,000        11,965         I&E            2      0.8639
AUT0570.......  ...........................       951,201     4,021,857       164,817       591,048       998,853  ............  ............  ............           I            1      1.1604
AUT0577.......  ...........................       741,931    10,647,710       113,337       129,884     1,532,542  ............  ............  ............         I&E            7       2.504
AUT0583.......  ...........................       222,087     2,210,305        36,279        51,245       329,663     9,610,528  ............       774,478         I&E            4      2.5787
AUT0585.......  ...........................       128,015     1,561,382        49,933        54,853       227,225     1,102,473  ............        88,844         I&E            4      2.5787
AUT0588.......  ...........................       396,576     1,788,685       191,759        66,639       129,548  ............       180,701        14,414         I&E           11      0.7352
AUT0590.......  ...........................       147,803       315,803        22,592        75,430        97,801  ............  ............  ............           I            1      1.1604
AUT0599.......  ...........................       198,681     3,040,887        21,121       104,455       516,288  ............       307,205        24,505           I            4      2.5787
AUT0600.......  ...........................       711,801     1,717,012        80,592       284,636       448,508  ............  ............  ............           I            1      1.1604
AUT0601.......  ...........................     1,151,214       541,482       677,194       742,753       142,654  ............  ............  ............         I&E            2      0.8639
AUT0603.......  ...........................     1,228,633       684,562       720,077       802,140       179,529  ............       150,000        11,965         I&E            2      0.8639
AUT0607.......  ...........................       635,364     9,044,216       111,819       226,342     1,402,216     3,693,163       456,845       334,061         I&E           12      3.6581
AUT0611.......  ...........................       547,114     3,195,898        88,288       320,973       687,709  ............  ............  ............           I            1      1.1604
AUT0612.......  ...........................       186,464     6,614,075  ............        85,670     1,027,365  ............  ............  ............         I&E           13      7.0567
AUT0613.......  ...........................       493,923     4,341,494       155,354       572,021     1,034,798  ............  ............  ............           I            1      1.1604
AUT0617.......  ...........................     2,292,812    37,040,390     1,403,836       741,877     4,611,760     2,161,531     1,247,332       273,688         I&E           12      3.6581
AUT0619.......  ...........................       159,600        62,547        98,454       112,506        22,957  ............  ............  ............         I&E            2      0.8639
AUT0620.......  ...........................       551,528     2,198,869       264,319        90,714       139,464  ............       222,140        17,720         I&E           11      0.7352
AUT0621.......  ...........................       391,137     2,018,600        70,658       245,595       462,340  ............  ............  ............           I            1      1.1604
AUT0623.......  ...........................        73,622       267,379        13,006        49,653        74,715  ............  ............  ............           I            2      0.8639
AUT0625.......  ...........................       562,255     2,841,330       104,168       380,113       680,487  ............  ............  ............           I            1      1.1604

[[Page 41673]]

 
AUT0630.......  ...........................       569,211    16,086,712        94,881       227,787     2,423,292       974,792  ............        78,555         I&E            3      3.4562
AUT0631.......  ...........................       480,721    11,721,529        77,934       190,232     1,781,179       193,002  ............        15,553         I&E            3      3.4562
AUT0635.......  ...........................        72,550     1,057,088        50,149       201,000       301,357  ............       150,000        11,965         I&E            2      0.8639
AUT0638.......  ...........................       201,395     2,336,881        50,154       202,851       485,416  ............       236,083        18,832         I&E            2      0.8639
AUT0639.......  ...........................       479,860     2,960,066       143,531       527,524       805,439  ............  ............  ............           I            1      1.1604
DMU3244.......  1..........................        22,222       138,465  ............        27,927        47,641  ............  ............  ............           I            1      1.1604
DMU3244.......  2..........................        56,250       163,334  ............        33,357        56,612  ............  ............  ............           I            1      1.1604
DMU3310.......  ...........................        41,319        25,594         8,793        27,169        22,020  ............  ............  ............           I            1      1.1604
DNU2003.......  ...........................       156,944        68,455  ............        30,711        40,458  ............  ............  ............           I            5      0.1286
DNU2010.......  ...........................        67,000     1,010,938        11,787        23,430       155,578       543,834  ............        43,826           I            4      2.5787
DNU2011.......  ...........................       181,250     2,707,585        21,222       102,473       466,750     5,223,420       273,533       442,756         I&E           12      3.6581
DNU2013.......  ...........................        65,000       588,369  ............        24,812       108,583  ............       150,000        11,965         I&E           11      0.7352
DNU2014.......  ...........................        42,798       531,997        64,365        22,327        33,707  ............       150,000        11,965         I&E           11      0.7352
DNU2017.......  ...........................        38,194       984,494  ............        13,803       153,973  ............  ............  ............         I&E           13      7.0567
DNU2018.......  ...........................        44,260       446,336        11,513        13,633        65,668  ............  ............  ............         I&E           11      0.7352
DNU2021.......  ...........................        55,750       292,158        18,165        59,671        83,103  ............  ............  ............           I            1      1.1604
DNU2025.......  ...........................       120,689     7,720,257  ............       825,174     1,924,365  ............       779,937        62,215         I&E            2      0.8639
DNU2032.......  Units 1 & 2................       156,250  ............  ............  ............  ............  ............  ............  ............           I            5      0.1286
DNU2032.......  Unit 3.....................       124,306  ............  ............  ............  ............  ............  ............  ............           I            5      0.1286
DNU2032.......  Unit 4.....................       136,806       143,049  ............        54,324        74,691  ............  ............  ............           I            5      0.1286
DNU2038.......  ...........................        41,667       465,858        50,489        58,892        74,730  ............  ............  ............         I&E            2      0.8639
DUT0062.......  1..........................        72,917     1,069,902         8,527        48,944       192,747     5,279,493  ............       425,455         I&E            4      2.5787
DUT0062.......  2..........................       156,250     1,922,088        14,312        56,483       315,834     5,279,493  ............       425,455         I&E            4      2.5787
DUT0576.......  5&6........................        50,000     1,434,192        51,770       185,694       338,121  ............  ............  ............           I            1      1.1604
DUT0576.......  7..........................        43,056       866,245        29,000       101,863       196,197  ............  ............  ............           I            1      1.1604
DUT0576.......  CT.........................         2,083       202,358  ............        25,785        54,596  ............  ............  ............           I            1      1.1604
DUT1002.......  Screenhouse 1..............       685,833       166,652       322,571       367,337        68,493  ............  ............  ............         I&E            2      0.8639
DUT1002.......  Screenhouse 2..............       685,833       166,652       322,571       367,337        68,493  ............  ............  ............         I&E            2      0.8639
DUT1003.......  ...........................        38,500       703,237        15,912        20,989       105,202       236,360  ............        19,047           I            4      2.5787
DUT1006.......  Unit 1/2...................       173,611     1,286,341        54,154       153,027       282,018  ............  ............  ............           I            1      1.1604
DUT1006.......  Unit 3/4...................        20,833       281,263        12,914        39,309        66,440  ............  ............  ............           I            1      1.1604
DUT1007.......  ...........................       242,778       680,059        32,861        39,165       103,129  ............       150,000        11,965         I&E           11      0.7352
DUT1008.......  ...........................        60,000     1,016,367        26,935       107,846       225,619  ............       150,000        11,965         I&E            2      0.8639
DUT1011.......  ...........................       283,611     1,350,484        76,112       267,481       383,648  ............  ............  ............           I            1      1.1604
DUT1012.......  ...........................       173,611       522,205        29,576       100,351       145,125  ............  ............  ............           I            1      1.1604
DUT1014.......  ...........................        87,000       920,321        40,859       163,140       253,315  ............       150,000        11,965         I&E            2      0.8639
DUT1022.......  ...........................     2,200,000     8,268,801       291,801     1,051,593     1,937,083  ............  ............  ............           I            1      1.1604
DUT1023.......  CWS 535...........       478,444    28,961,166       360,609       274,535     4,037,344  ............  ............  ............         I&E            3      3.4562
DUT1023.......  DWS 536...........       520,000    39,708,776        97,288       361,137     5,917,486     4,830,432  ............       389,267         I&E            3      3.4562
DUT1029.......  CRS........................       638,000    14,391,478        63,709       254,538     2,239,852  ............  ............  ............         I&E            3      3.4562
DUT1029.......  CR Nuc.....................       680,000     6,740,847       162,470       659,152     1,456,426  ............  ............  ............         I&E            2      0.8639
DUT1029.......  CRN........................        68,000       649,893        13,914        16,340        94,956  ............  ............  ............         I&E           11      0.7352
DUT1029.......  HCT........................       735,000     4,654,560       159,675       194,358       697,388    21,796,254       667,692     1,809,743         I&E           11      0.7352
DUT1031.......  1..........................        59,000       808,777        17,797        22,826       120,181  ............  ............  ............         I&E            4      2.5787
DUT1031.......  2..........................       140,000     1,524,044        24,132        26,017       218,874     5,399,114  ............       435,095         I&E            4      2.5787
DUT1033.......  ...........................       240,000     1,076,251        43,293        55,502       165,443  ............       150,000        11,965         I&E           11      0.7352
DUT1034.......  ...........................     1,231,944     4,990,608       202,923       820,337     1,327,964  ............       504,175        40,218         I&E            2      0.8639
DUT1036.......  ...........................       444,000       753,297        41,568       141,630       207,314  ............  ............  ............           I            1      1.1604
DUT1038.......  ...........................        65,972       213,848        12,804        38,918        56,561  ............  ............  ............           I            1      1.1604
DUT1041.......  ...........................       188,958       433,167        27,973        94,625       128,325  ............  ............  ............           I            1      1.1604
DUT1043.......  ...........................       280,556        36,345  ............        27,042        32,217  ............  ............  ............           I            5      0.1286
DUT1044.......  ...........................       756,944        76,726  ............        53,732        64,656  ............  ............  ............           I            5      0.1286
DUT1047.......  ...........................       614,306    16,998,704       151,032       103,667     2,372,868     4,783,541  ............       385,488         I&E            7       2.504
DUT1048.......  HI-1.......................       256,944     1,766,372       113,534       405,813       543,770  ............  ............  ............           I            1      1.1604
DUT1048.......  HI-2.......................       170,139       473,836        33,127       113,050       147,387  ............  ............  ............           I            1      1.1604
DUT1050.......  ...........................     2,104,167       407,068  ............       171,852       229,809  ............  ............  ............           I            5      0.1286
DUT1051.......  ...........................       374,000     1,027,013        55,468       193,382       284,137  ............  ............  ............           I            1      1.1604
DUT1057.......  ...........................       340,000     2,844,898        35,159        51,102       420,993     7,997,712  ............       644,507         I&E            4      2.5787
DUT1062.......  ...........................       670,139        67,658  ............        48,869        58,502  ............  ............  ............           I            5      0.1286
DUT1066.......  ...........................     1,712,000    32,777,974       260,695       678,771     5,084,922       845,987  ............        68,175         I&E            3      3.4562
DUT1067.......  1..........................        63,611  ............  ............  ............  ............  ............  ............  ............           I            5      0.1286
DUT1067.......  2..........................        31,667  ............  ............  ............  ............  ............  ............  ............           I            5      0.1286
DUT1067.......  3..........................        69,653        23,159  ............        20,564        23,862  ............  ............  ............           I            5      0.1286
DUT1068.......  ...........................        91,528       360,536        56,351        20,060        15,042  ............  ............  ............         I&E           11      0.7352
DUT1072.......  ...........................       366,597       691,381        40,319       137,184       195,303  ............  ............  ............           I            1      1.1604
DUT1084.......  ...........................       264,583       835,764        54,494       189,863       254,363  ............  ............  ............           I            1      1.1604

[[Page 41674]]

 
DUT1085.......  ...........................       297,000     2,410,696       159,608       619,834       803,455  ............       243,540        19,427         I&E            2      0.8639
DUT1086.......  Unit 1.....................        57,292       667,197        29,048       122,691       188,637  ............  ............  ............         I&E            2      0.8639
DUT1086.......  Unit 2.....................        57,292       667,197        29,048       122,691       188,637  ............       150,000        11,965         I&E            2      0.8639
DUT1088.......  4.................        49,280       865,324        11,129        22,007       134,081  ............  ............  ............         I&E            7       2.504
DUT1088.......  5.................        99,458     1,438,399        12,058        25,232       217,970     1,601,167  ............       129,032         I&E            7       2.504
DUT1093.......  ...........................       307,760     9,456,466  ............        33,762     1,380,150  ............  ............  ............         I&E            9       5.973
DUT1097.......  ...........................       106,007     2,349,646  ............       242,606       577,143  ............       237,372        18,935         I&E            6      5.0065
DUT1098.......  ...........................        71,528       507,025        29,461        99,942       142,669  ............  ............  ............           I            1      1.1604
DUT1100.......  Units 1 & 2................       188,000  ............  ............  ............  ............  ............  ............  ............           I            5      0.1286
DUT1100.......  Units 3 & 4................       188,000       136,878  ............        50,573        70,062  ............  ............  ............           I            5      0.1286
DUT1103.......  Unit 1 Screenhouse.........       118,000  ............  ............  ............  ............  ............  ............  ............           I
DUT1103.......  Unit 2 Screenhouse.........       250,000        47,060  ............        31,941        38,642  ............  ............  ............           I            5      0.1286
DUT1103.......  Hvdc Lake Intake...........         1,200        34,615  ............         4,734         9,662  ............  ............  ............           I            8      0.3315
DUT1103.......  Hvdc Separator Dike........         1,200        34,615  ............         4,734         9,662  ............  ............  ............           I            8      0.3315
DUT1103.......  River Intake...............         7,800        75,587         5,734        15,570        20,597  ............  ............  ............           I            1      1.1604
DUT1109.......  ...........................        58,333       873,553        32,385       130,170       222,159  ............       150,000        11,965           I            2      0.8639
DUT1111.......  Unit 1&2...................       199,716       764,700        99,547        37,851        47,181  ............  ............  ............         I&E           11      0.7352
DUT1111.......  Unit 3.....................       189,842       717,221        93,277        35,552        44,391  ............       150,000        11,965         I&E           11      0.7352
DUT1112.......  ...........................       193,750       501,403        28,510        96,543       139,421  ............  ............  ............           I            1      1.1604
DUT1113.......  System 27..................     1,125,000     6,518,329       281,013     1,001,831     1,648,882  ............  ............  ............           I            1      1.1604
DUT1113.......  System 67..................        44,028       181,599  ............         8,508        34,364  ............  ............  ............           I            8      0.3315
DUT1116.......  ...........................       355,556     2,886,459        69,804        84,921       426,084  ............       291,604        23,261         I&E           11      0.7352
DUT1118.......  ...........................       667,361       140,959  ............        64,789        84,858  ............  ............  ............           I            5      0.1286
DUT1122.......  ...........................       120,000        23,134  ............        18,047        21,341  ............  ............  ............           I            5      0.1286
DUT1123.......  6..........................       111,806     4,071,741        15,536        39,240       603,428  ............  ............  ............         I&E            3      3.4562
DUT1123.......  7..........................       256,250     5,809,773  ............       431,082     1,258,263  ............  ............  ............         I&E            6      5.0065
DUT1123.......  8..........................       220,139     5,590,610        27,185        73,721       842,513     1,136,010  ............        91,547         I&E            3      3.4562
DUT1132.......  ...........................     1,896,000     3,995,072       197,552       927,311     1,298,568  ............       403,601        32,195         I&E            2      0.8639
DUT1133.......  ...........................       213,889     1,180,537        44,631        57,260       180,711  ............       150,000        11,965         I&E           11      0.7352
DUT1138.......  ...........................        77,083       264,532        12,475        37,753        62,942  ............  ............  ............           I            1      1.1604
DUT1140.......  Mc2-4......................       131,250       334,100        20,512        66,264        93,320  ............  ............  ............           I            1      1.1604
DUT1140.......  Mc5&6......................       383,958     1,450,787        82,444       290,867       414,982  ............  ............  ............           I            1      1.1604
DUT1145.......  ...........................       178,472     2,702,979        38,035        57,101       403,909     1,565,614       273,068       147,950         I&E           12      3.6581
DUT1146.......  ...........................       181,944       325,271       276,184       309,256        79,383  ............  ............  ............         I&E            2      0.8639
DUT1152.......  ...........................       399,306    10,606,982       355,225     1,321,682     2,476,653  ............  ............  ............           I            1      1.1604
DUT1156.......  ...........................       496,000    16,234,946        67,033        77,047     2,321,504     9,287,608  ............       748,455         I&E            7       2.504
DUT1157.......  6..........................       110,000     1,262,753        47,827        25,593       157,553  ............  ............  ............         I&E            4      2.5787
DUT1157.......  7..........................         5,833       305,286        13,438        17,201        47,229  ............  ............  ............         I&E            4      2.5787
DUT1165.......  1..........................       480,000     9,356,403       220,447       189,951     1,301,645  ............  ............  ............         I&E            3      3.4562
DUT1165.......  2..........................       489,233  ............  ............  ............  ............     9,426,676  ............       759,662         I&E
DUT1169.......  ...........................       620,000    14,855,719        47,990       185,073     2,252,203     1,896,934  ............       152,867         I&E            3      3.4562
DUT1173.......  ...........................        37,986       312,285        18,521        72,119        98,061  ............  ............  ............         I&E            2      0.8639
DUT1179.......  ...........................       390,278     1,204,485        74,177       261,241       358,556  ............  ............  ............           I            1      1.1604
DUT1185.......  ...........................       225,000     3,496,693        21,560        51,324       527,614     1,266,125  ............       102,032         I&E            7       2.504
DUT1186.......  Unit 4.....................        62,000       577,654        26,371        88,907       144,780  ............  ............  ............           I            1      1.1604
DUT1186.......  Unit 5.....................        62,000       577,654        26,371        88,907       144,780  ............  ............  ............           I            1      1.1604
DUT1187.......  Mt 2&3.....................       147,014  ............  ............  ............  ............  ............  ............  ............           I            5      0.1286
DUT1187.......  Mt 6-8.....................       500,000        78,370  ............        47,573        58,732  ............  ............  ............           I            5      0.1286
DUT1189.......  Unit 6 & 8.................        72,222  ............  ............  ............  ............  ............  ............  ............           I            5      0.1286
DUT1189.......  Unit 7.....................        80,000        22,427  ............        19,852        23,045  ............  ............  ............           I            5      0.1286
DUT1198.......  ...........................       279,511     5,198,159        27,451        92,443       805,093       268,118  ............        21,607         I&E            3      3.4562
DUT1202.......  Power Plant................        36,000     1,154,817  ............        13,668       178,088  ............  ............  ............         I&E           11      0.7352
DUT1202.......  Filtration Plant...........        30,000       987,137  ............        13,284       153,830  ............  ............  ............         I&E            9       5.973

[[Page 41675]]

 
DUT1206.......  1..........................        85,972        53,440        56,705        65,852        16,756  ............  ............  ............         I&E            2      0.8639
DUT1206.......  2..........................        85,000        59,054        56,155        65,236        17,489  ............  ............  ............         I&E            2      0.8639
DUT1206.......  3..........................       120,972        87,045        76,530        88,027        23,890  ............  ............  ............         I&E            2      0.8639
DUT1209.......  Plant A....................       640,000     2,227,053        89,172       116,036       343,947  ............  ............  ............         I&E           11      0.7352
DUT1209.......  Plant B....................       515,972    10,503,729        51,204       184,394     1,628,685     5,849,051  ............       471,354         I&E            3      3.4562
DUT1211.......  ...........................     1,666,667    32,926,766     3,240,832     1,072,136     2,519,335  ............     3,326,419       265,345         I&E           11      0.7352
DUT1212.......  ...........................       687,500     2,000,922        85,020       302,122       501,987  ............  ............  ............           I            1      1.1604
DUT1214.......  ...........................        51,944       754,488        34,900        22,241        94,763     7,829,721  ............       630,969           I            4      2.5787
DUT1217.......  Unit 1.....................  ............  ............  ............  ............  ............  ............  ............  ............         I&E   ..........  ..........
DUT1217.......  Unit 6-8...................       104,861       848,612  ............        16,547       137,371  ............  ............  ............         I&E           13      7.0567
DUT1217.......  Unit 4.....................  ............  ............  ............  ............  ............  ............  ............  ............         I&E   ..........  ..........
DUT1219.......  ...........................       550,000     2,862,608       108,307       438,079       737,343  ............       289,194        23,069         I&E            2      0.8639
DUT1223.......  1..........................       142,000     1,422,632         8,898        55,779       249,432  ............  ............  ............         I&E           12      3.6581
DUT1223.......  2..........................       224,800     2,121,274        22,284        56,502       336,239       376,088       179,011        44,587         I&E           12      3.6581
DUT1227.......  1 & 2......................       130,000       373,205        21,493        71,516       103,159  ............  ............  ............           I            1      1.1604
DUT1227.......  3..........................       185,000       512,326        29,084        98,594       142,454  ............  ............  ............           I            1      1.1604
DUT1229.......  ...........................        73,000        30,638        82,612        96,918        18,668  ............  ............  ............         I&E            2      0.8639
DUT1238.......  A..........................       676,000       386,447       531,800       688,788       212,010  ............  ............  ............           I            2      0.8639
DUT1238.......  B..........................       334,000       344,428       525,715       662,610       185,934  ............  ............  ............           I            2      0.8639
DUT1248.......  ...........................       452,083        49,114  ............        36,652        43,645  ............  ............  ............           I            5      0.1286
DUT1249.......  ...........................        43,900        10,765  ............        13,783        15,316  ............  ............  ............           I            5      0.1286
DUT1250.......  ...........................       360,000    12,788,752       160,063       151,944     1,812,711    17,224,807  ............     1,388,085         I&E            7       2.504
DUT1252.......  ...........................       112,000       157,353        10,988        32,494        43,910  ............  ............  ............           I            1      1.1604
DUT1258.......  Screen House No.1..........       287,083     6,665,603       171,249       116,490       894,273  ............  ............  ............         I&E            3      3.4562
DUT1258.......  Screen House No.2..........       422,708     9,009,434       248,577       168,448     1,202,611  ............  ............  ............         I&E            3      3.4562
DUT1258.......  Screen House No.3..........       243,056     4,842,849       108,025        73,278       654,766     4,429,893  ............       356,989         I&E            3      3.4562
DUT1259.......  ...........................        71,181     2,706,303        20,742        26,203       390,778        81,723  ............         6,586         I&E            3      3.4562
DUT1261.......  U12........................        79,000        49,889       119,643       139,137        26,598  ............  ............  ............         I&E            2      0.8639
DUT1261.......  U34........................       139,750     1,735,631       101,580        26,018       171,552     1,650,821  ............       133,034         I&E            4      2.5787
DUT1265.......  ...........................        70,000       495,281        35,987       143,288       177,818  ............       150,000        11,965         I&E            2      0.8639
DUT1268.......  ...........................     2,400,000    20,911,797     1,793,928       623,613     1,807,054  ............     2,112,610       168,521         I&E           11      0.7352
DUT1269.......  ...........................       456,000     3,012,280       107,765       130,761       451,877  ............       304,315        24,275         I&E           11      0.7352
DUT1270.......  ...........................        89,583        18,084  ............        16,343        18,918  ............  ............  ............           I            5      0.1286
DUT1271.......  ...........................       186,000    14,970,016        30,165        49,913     2,151,142     4,337,253     1,512,343       470,162         I&E            7       2.504
DUT1272.......  Mo1 & 2....................       713,889     1,238,695        76,910       270,425       369,877  ............  ............  ............           I            1      1.1604
DUT1272.......  Mo3........................       528,472       849,029        53,826       185,965       253,021  ............  ............  ............           I            1      1.1604
DUT1273.......  ...........................       444,444     2,752,775       164,719       582,187       809,401  ............  ............  ............           I            1      1.1604
DUT1274.......  ...........................       330,556     1,564,234        62,476       225,250       385,486  ............  ............  ............           I            1      1.1604
DUT1275.......  ...........................     1,992,500     6,739,793  ............       355,766     1,315,361  ............       680,886        54,314           I            2      0.8639
DUT1276.......  ...........................        62,500       412,277        23,754        26,574        61,518  ............  ............  ............         I&E           11      0.7352
DUT1278.......  ...........................       559,722     4,962,033       193,479       688,069     1,201,071  ............  ............  ............           I            1      1.1604
---------------
                                                                      Facilities Receiving No EPA Technology Upgrade Costs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
AUT0010.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
AUT0013.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
AUT0018.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
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DUT1170.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1172.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1174.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1175.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1176.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1177.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1183.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1188.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1191.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1192.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1194.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1199.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1201.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1213.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1220.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1222.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1224.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1225.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1228.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1233.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1234.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1235.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a

[[Page 41679]]

 
DUT1239.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1243.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1254.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1257.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a         n/a
DUT1262.......  ...........................           n/a  ............  ............  ............  ............  ............  ............  ............  ...........         n/a        n/a
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The design flow adjustment slope (m) represents the slope that corresponds to the particular facility using the technology in column 3
\2\ Discount rate = 7%
\3\ Amortization period for capital costs = 10 years
\4\ Amortization period for downtime and pilot study costs = 30 years
Note: Depending on the data provided, some facilities with multiple intakes were costed separately for each intake. In such cases, the facility should calculate the costs considered by EPA for
  each intake using the steps below and sum. Note that some costs (e.g., construction downtime) are assigned evenly to each intake for convenience.


[[Page 41680]]

Appendix B: Facility ID and Facility Name for All Facilities Not 
Claiming Survey Information CBI

------------------------------------------------------------------------
            Facility ID                         Facility name
------------------------------------------------------------------------
AUT0001............................  Cane Run
AUT0002............................  Chesapeake
AUT0004............................  Hennepin
AUT0010............................  Bowen
AUT0011............................  Shawville
AUT0012............................  Diablo Canyon Nuclear
AUT0013............................  Montville
AUT0014............................  Williams
AUT0015............................  Northport
AUT0016............................  Cholla
AUT0018............................  R M Heskett Station
AUT0019............................  Charles Poletti
AUT0020............................  B L England
AUT0021............................  B C Cobb
AUT0022............................  St Johns River Power
AUT0024............................  Bull Run
AUT0027............................  Lake Hubbard
AUT0033............................  Muscatine
AUT0036............................  Edgewater
AUT0041............................  Edwin I Hatch
AUT0044............................  Hunters Point
AUT0047............................  Michoud
AUT0049............................  Chalk Point
AUT0050............................  Wyandotte
AUT0051............................  Suwannee River
AUT0053............................  Nelson Dewey
AUT0054............................  Flint Creek
AUT0057............................  Thomas Fitzhugh
AUT0058............................  Mercer
AUT0064............................  Decordova
AUT0066............................  Fermi Nuclear
AUT0067............................  Henry D King
AUT0068............................  Scattergood
AUT0071............................  Oswego
AUT0072............................  Sioux
AUT0073............................  Lake Catherine
AUT0078............................  Missouri City
AUT0079............................  Eagle Mountain
AUT0080............................  Lone Star
AUT0083............................  Schiller
AUT0084............................  Salem Nuclear
AUT0085............................  Point Beach Nuclear
AUT0092............................  Linden
AUT0093............................  Perry Nuclear
AUT0095............................  Tyrone
AUT0097............................  Little Gypsy
AUT0101............................  Lakeside
AUT0106............................  Cheswick
AUT0110............................  C P Crane
AUT0111............................  Cape Fear
AUT0114............................  Kewaunee Nuclear
AUT0120............................  Norwalk Harbor
AUT0123............................  Warren
AUT0125............................  Beaver Valley Nuclear
AUT0127............................  Lake Road
AUT0129............................  Susquehanna Nuclear
AUT0130............................  Elmer W Stout
AUT0131............................  Hammond
AUT0134............................  Mount Tom
AUT0137............................  Mitchell
AUT0139............................  Albany
AUT0142............................  Lauderdale
AUT0143............................  Wood River
AUT0146............................  Meredosia
AUT0148............................  Tanners Creek
AUT0149............................  Thomas Hill
AUT0151............................  Decker Creek
AUT0152............................  Duck Creek
AUT0156............................  Waterford 1 & 2
AUT0157............................  Pulliam
AUT0160............................  L V Sutton
AUT0161............................  Valley
AUT0163............................  Belle River
AUT0168............................  E F Barrett
AUT0170............................  O W Sommers
AUT0171............................  New Madrid
AUT0173............................  Fort Calhoun Nuclear
AUT0174............................  Herbert a Wagner
AUT0175............................  R E Burger
AUT0176............................  Martin Lake
AUT0178............................  Mt Storm
AUT0181............................  Prairie Creek
AUT0182............................  Arsenal Hill
AUT0183............................  Schuylkill
AUT0185............................  Gallatin
AUT0187............................  North Anna Nuclear
AUT0190............................  Ginna
AUT0191............................  J H Campbell
AUT0192............................  R W Miller
AUT0193............................  Joliet 29
AUT0196............................  Southside
AUT0197............................  Austin-dt
AUT0201............................  Cope
AUT0202............................  Donald C Cook Nuclear
AUT0203............................  Riverside
AUT0205............................  Joliet 9
AUT0208............................  New Castle
AUT0215............................  Coleto Creek
AUT0216............................  Fort St Vrain
AUT0221............................  Polk
AUT0222............................  Marion
AUT0226............................  Sooner
AUT0227............................  Silver Lake
AUT0228............................  High Bridge
AUT0229............................  Dan E Karn
AUT0230............................  McWilliams
AUT0232............................  V H Braunig
AUT0235............................  Sam Rayburn
AUT0238............................  North Lake
AUT0240............................  Lee
AUT0241............................  J B Sims
AUT0242............................  Quad Cities Nuclear
AUT0244............................  Elk River
AUT0245............................  Avon Lake
AUT0246............................  Canaday
AUT0248............................  Sam Bertron
AUT0254............................  Chamois
AUT0255............................  Cooper
AUT0257............................  Gerald Gentleman
AUT0260............................  Marshall
AUT0261............................  Dale
AUT0264............................  Indian Point 3 Nucler
AUT0266............................  North Omaha
AUT0268............................  Cutler
AUT0270............................  Possum Point
AUT0273............................  Stanton
AUT0275............................  Seabrook Nuclear
AUT0276............................  River Rouge
AUT0277............................  Dubuque
AUT0278............................  Morgantown
AUT0284............................  Handley
AUT0285............................  Conners Creek
AUT0286............................  Welsh
AUT0287............................  Horseshoe Lake
AUT0292............................  Harris Nuclear
AUT0295............................  Jack Mcdonough
AUT0296............................  W H Zimmer
AUT0297............................  Quindaro
AUT0298............................  Harllee Branch
AUT0299............................  Chesterfield
AUT0300............................  Eckert Station
AUT0302............................  U.S. DOE SRS (D-area)
AUT0304............................  Lansing
AUT0305............................  Kahe
AUT0307............................  Rodemacher
AUT0308............................  W S Lee
AUT0309............................  Wilkes
AUT0310............................  A B Paterson
AUT0314............................  Philip Sporn
AUT0315............................  Sabine
AUT0319............................  Cliffside
AUT0321............................  J E Corette
AUT0331............................  Lake Creek
AUT0333............................  Hamilton
AUT0337............................  Johnsonville
AUT0341............................  Montrose
AUT0343............................  John E Amos
AUT0344............................  Weston
AUT0345............................  Summer Nuclear
AUT0349............................  McGuire Nuclear
AUT0350............................  Clinton Nuclear
AUT0351............................  Portland
AUT0355............................  Limerick Nuclear
AUT0356............................  Byron Nuclear
AUT0358............................  H T Pritchard
AUT0359............................  Hookers Point
AUT0361............................  Hawthorn
AUT0362............................  Teche
AUT0363............................  Wansley
AUT0364............................  Dresden Nuclear
AUT0365............................  Arkwright
AUT0368............................  Kaw
AUT0370............................  Deepwater
AUT0373............................  Valmont
AUT0379............................  Lake Pauline
AUT0380............................  Will County
AUT0381............................  Healy
AUT0384............................  Somerset
AUT0385............................  Hutsonville
AUT0387............................  Haynes
AUT0388............................  Lewis Creek
AUT0390............................  Fort Churchill
AUT0394............................  Nebraska City
AUT0396............................  Bremo Power Station
AUT0397............................  George Neal North
AUT0398............................  Iatan
AUT0399............................  Boomer Lake
AUT0401............................  Fort Myers
AUT0403............................  Nine Mile Point Nuclear
AUT0404............................  Mitchell
AUT0405............................  Fisk
AUT0406............................  Merom
AUT0408............................  Cameo
AUT0411............................  Roseton
AUT0415............................  Rochester 7
AUT0416............................  Noblesville
AUT0419............................  Brunswick Nuclear
AUT0423............................  James A Fitzpatrick
AUT0424............................  Davis-besse
AUT0427............................  Blount Street
AUT0431............................  San Angelo
AUT0433............................  Mistersky
AUT0434............................  Paradise
AUT0435............................  Shiras
AUT0440............................  Eaton
AUT0441............................  Piqua
AUT0443............................  Milton L Kapp
AUT0444............................  Gibbons Creek
AUT0446............................  Richard H. Gorsuch
AUT0449............................  Big Brown
AUT0453............................  Four Corners
AUT0455............................  Seminole
AUT0459............................  Vogtle Nuclear
AUT0462............................  Warrick
AUT0463............................  Rex Brown
AUT0467............................  Vero Beach
AUT0472............................  Miami Fort
AUT0473............................  Palisades Nuclear

[[Page 41681]]

 
AUT0476............................  Trinidad
AUT0477............................  Fair Station
AUT0478............................  Dansby
AUT0481............................  Powerlane
AUT0482............................  Gen J M Gavin
AUT0483............................  Shawnee
AUT0489............................  Nearman Creek
AUT0490............................  Buck
AUT0492............................  Collins
AUT0493............................  E S Joslin
AUT0496............................  Indian River
AUT0499............................  Bay Front
AUT0500............................  Big Cajun 2
AUT0501............................  Jack Watson
AUT0507............................  Crawford
AUT0512............................  J K Spruce
AUT0513............................  Waterford 3 Nuclear
AUT0515............................  Rockport
AUT0517............................  Humboldt Bay
AUT0518............................  James River
AUT0521............................  Menasha
AUT0522............................  Jefferies
AUT0523............................  Walter C Beckjord
AUT0529............................  Gould Street
AUT0531............................  Braidwood Nuclear
AUT0534............................  Crisp
AUT0535............................  Urquhart
AUT0536............................  Rush Island
AUT0537............................  Dallman
AUT0538............................  Genoa
AUT0539............................  Edge Moor
AUT0540............................  J P Madgett
AUT0541............................  Indian Point Nuclear
AUT0544............................  Eddystone
AUT0546............................  Watts Bar Nuclear
AUT0547............................  Muskingum River
AUT0551............................  Allen S King
AUT0552............................  Kingston
AUT0553............................  Hunlock Pwr Station
AUT0554............................  Potomac River
AUT0555............................  Zuni
AUT0557............................  Sayreville
AUT0561............................  J T Deely
AUT0564............................  Kyger Creek
AUT0567............................  F B Culley
AUT0568............................  Northside
AUT0570............................  Peach Bottom Nuclear
AUT0571............................  Baxter Wilson
AUT0573............................  San Onofre Nuclear
AUT0575............................  Trenton Channel
AUT0577............................  Middletown
AUT0580............................  Sixth Street
AUT0582............................  E W Brown
AUT0583............................  Dave Johnston
AUT0585............................  Burlington
AUT0588............................  Monticello
AUT0590............................  C D McIntosh Jr
AUT0599............................  Kearny
AUT0600............................  Kincaid
AUT0601............................  Bridgeport Harbor
AUT0602............................  Mason Steam
AUT0603............................  Astoria
AUT0604............................  C R Huntley
AUT0606............................  Hmp&l Station 2
AUT0607............................  Moss Landing
AUT0608............................  Pilgrim Nuclear
AUT0611............................  New Boston
AUT0612............................  Huntington Beach
AUT0613............................  Morro Bay
AUT0617............................  Ravenswood
AUT0618............................  New Haven Harbor
AUT0619............................  William F Wyman
AUT0620............................  Dunkirk
AUT0621............................  Contra Costa
AUT0623............................  Kendall Square
AUT0625............................  Encina
AUT0630............................  Lovett
AUT0631............................  Salem Harbor
AUT0635............................  Aes Hickling
AUT0637............................  Ormond Beach
AUT0638............................  Mandalay
AUT0639............................  Pittsburg
DMU3244............................  University of Notre Dame Power
                                      Plant
DMU3310............................  University of Iowa--Main Power
                                      Plant
DNU2002............................  Brooklyn Navy Yard Cogeneration
                                      Partners, L.P.
DNU2011............................  Long Beach Generation
DNU2013............................  Maine Energy Recovery Company
DNU2014............................  Baltimore Resco
DNU2015............................  Southern Energy-Canal
DNU2017............................  Westchester Resco Co.
DNU2018............................  Grays Ferry Cogeneration
                                      Partnership
DNU2021............................  Morgantown
DNU2025............................  Sparrows Point Div Bethlehem Steel
                                      Corp
DNU2031............................  Ch Resources--Beaver Falls
DNU2032............................  Duke Energy South Bay
DNU2038............................  Saugus Resco
DNU2047............................  El Segundo Power
DUT0062............................  Leland Olds Station
DUT0576............................  Sam O. Purdom Generating Station
DUT1002............................  Monroe
DUT1003............................  Peru
DUT1006............................  Martins Creek
DUT1007............................  Presque Isle
DUT1008............................  Far Rockaway
DUT1011............................  Stryker Creek
DUT1012............................  Grand Tower
DUT1014............................  Dolphus M Grainger
DUT1021............................  Alma
DUT1022............................  Comanche Peak Nuclear
DUT1023............................  Oyster Creek Nuclear
DUT1026............................  Delaware
DUT1029............................  Crystal River
DUT1031............................  Merrimack
DUT1033............................  J C Weadock
DUT1034............................  South Oak Creek
DUT1036............................  Allen
DUT1038............................  North Texas
DUT1041............................  Elmer Smith
DUT1043............................  Ray Olinger
DUT1044............................  Tradinghouse
DUT1046............................  Labadie
DUT1047............................  Elrama
DUT1048............................  Holly Street
DUT1049............................  Joppa Steam
DUT1050............................  Browns Ferry Nuclear
DUT1051............................  Havana
DUT1056............................  Webster
DUT1057............................  Wateree
DUT1062............................  Fayette Power Prj
DUT1066............................  F J Gannon
DUT1067............................  Paint Creek
DUT1068............................  Harbor
DUT1070............................  Millstone
DUT1072............................  Graham
DUT1084............................  Fort Phantom
DUT1085............................  Petersburg
DUT1086............................  Valley
DUT1088............................  Seward
DUT1093............................  Bailly
DUT1097............................  Rock River
DUT1098............................  Blackhawk
DUT1100............................  Sewaren
DUT1103............................  Milton R Young
DUT1109............................  Riverside
DUT1111............................  E D Edwards
DUT1112............................  Lieberman
DUT1113............................  Sequoyah Nuclear
DUT1116............................  Waiau
DUT1117............................  Columbia
DUT1118............................  Cooper
DUT1122............................  Edgewater
DUT1123............................  Waukegan
DUT1132............................  Cumberland
DUT1133............................  J R Whiting
DUT1138............................  Harbor
DUT1140............................  Morgan Creek
DUT1142............................  Victoria
DUT1143............................  East River
DUT1145............................  Honolulu
DUT1146............................  Devon
DUT1148............................  Council Bluffs
DUT1152............................  Coffeen
DUT1153............................  Mill Creek
DUT1154............................  McClellan
DUT1155............................  P H Robinson
DUT1156............................  John Sevier
DUT1157............................  Sterlington
DUT1161............................  Robert E Ritchie
DUT1165............................  Big Bend
DUT1167............................  Ninemile Point
DUT1169............................  Hudson
DUT1170............................  Carl Bailey
DUT1172............................  Barney M Davis
DUT1173............................  Logansport
DUT1174............................  Arkansas Nuclear One
DUT1175............................  Fox Lake
DUT1179............................  Pirkey
DUT1185............................  Cromby
DUT1186............................  Glenwood
DUT1187............................  Mountain Creek
DUT1189............................  Larsen Memorial
DUT1191............................  Monroe
DUT1192............................  Meramec
DUT1194............................  Gerald Andrus
DUT1198............................  O H Hutchings
DUT1202............................  Manitowoc
DUT1206............................  Indian River
DUT1209............................  Widows Creek
DUT1211............................  Surry Nuclear
DUT1212............................  J M Stuart
DUT1213............................  Riverside
DUT1214............................  Charles R Lowman
DUT1217............................  Deepwater
DUT1219............................  Port Washington
DUT1223............................  Nueces Bay
DUT1225............................  Burlington
DUT1227............................  Sibley
DUT1228............................  Willow Glen
DUT1229............................  Riverton
DUT1235............................  Riverside
DUT1238............................  Cedar Bayou
DUT1248............................  Knox Lee
DUT1249............................  Oak Creek
DUT1250............................  Vermont Yankee Nuclear
DUT1252............................  Muskogee
DUT1258............................  St Clair
DUT1259............................  James De Young
DUT1261............................  Green River
DUT1265............................  River Crest
DUT1268............................  Calvert Cliffs Nuclear
DUT1269............................  Dean H Mitchell
DUT1270............................  Pueblo
DUT1271............................  Michigan City
DUT1272............................  Monticello
DUT1273............................  Sim Gideon

[[Page 41682]]

 
DUT1274............................  P L Bartow
DUT1275............................  Anclote
DUT1276............................  Animas
DUT1278............................  Newton
------------------------------------------------------------------------

List of Subjects

40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

40 CFR Part 122

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

40 CFR Part 123

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

40 CFR Part 124

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

40 CFR Part 125

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

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 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT

0
1. The authority citation for part 9 continues to read as follows:

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

0
2. In Sec.  9.1 the table is amended by revising the entry for 
``122.21(r)'' and by adding entries in numerical order under the 
indicated heading to read as follows:


Sec.  9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                            OMB Control
                     40 CFR citation                            No.
------------------------------------------------------------------------
 
                                * * * * *
---------------------------------------------------------
   EPA Administered Permit Programs: The National Pollutant Discharge
                           Elimination System
------------------------------------------------------------------------
 
                                * * * * *
122.21(r)...............................................      2040-0241,
                                                               2040-0257
 
                                * * * * *
---------------------------------------------------------
 Criteria and Standards for the National Pollutant Discharge Elimination
                                 System
------------------------------------------------------------------------
 
                                * * * * *
---------------------------------------------------------
125.95..................................................       2040-0257
125.96..................................................       2040-0257
125.97..................................................       2040-0257
125.98..................................................       2040-0257
125.99..................................................       2040-0257
 
                                * * * * *
------------------------------------------------------------------------

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

0
1. The authority citation for part 122 continues to read as follows:

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

0
2. Section 122.21 is amended by revising paragraph (r)(1) and by adding 
a new paragraph (r)(5) to read as follows:


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

* * * * *
    (r) Application requirements for facilities with cooling water 
intake structures--(1)(i) New facilities with new or modified cooling 
water intake structures. New facilities with cooling water intake 
structures as defined in part 125, subpart I, of this chapter must 
submit to the Director for review the information required under 
paragraphs (r)(2), (3), and (4) of this section and Sec.  125.86 of 
this chapter as part of their application. Requests for alternative 
requirements under Sec.  125.85 of this chapter must be submitted with 
your permit application.
    (ii) Phase II existing facilities. Phase II existing facilities as 
defined in part 125, subpart J, of this chapter must submit to the 
Director for review the information required under paragraphs (r)(2), 
(3), and (5) of this section and all applicable provisions of Sec.  
125.95 of this chapter as part of their application except for the 
Proposal for Information Collection which must be provided in 
accordance with Sec.  125.95(b)(1).
* * * * *
    (5) Cooling water system data. Phase II existing facilities as 
defined in part 125, subpart J of this chapter must provide the 
following information for each cooling water intake structure they use:
    (i) A narrative description of the operation of the cooling water 
system, its relationship to cooling water intake structures, the 
proportion of the design intake flow that is used in the system, the 
number of days of the year the cooling water system is in operation and 
seasonal changes in the operation of the system, if applicable; and
    (ii) Design and engineering calculations prepared by a qualified 
professional and supporting data to support the description required by 
paragraph (r)(5)(i) of this section.

0
3. Section 122.44 is amended by revising paragraph (b)(3) to read as 
follows:


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

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

PART 123--STATE PROGRAM REQUIREMENTS

0
1. The authority citation for part 123 continues to read as follows:

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


0
2. Section 123.25 is amended by revising paragraphs (a)(4) and (36) to 
read as follows:


Sec.  123.25  Requirements for permitting.

    (a) * * *
    (4) Sec.  122.21 (a)-(b), (c)(2), (e)-(k), (m)-(p), (q), and (r)--
(Application for a permit);
* * * * *
    (36) Subparts A, B, D, H, I, and J of part 125 of this chapter;
* * * * *

PART 124--PROCEDURES FOR DECISIONMAKING

0
1. The authority citation for part 124 continues to read as follows:


[[Page 41683]]


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


0
2. Section 124.10 is amended by revising paragraph (d)(1)(ix) to read 
as follows:


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

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

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


0
2. Add subpart J to part 125 to read as follows:
Subpart J--Requirements Applicable to Cooling Water Intake Structures 
for Phase II Existing Facilities Under Section 316(b) of the Act
Sec.
125.90 What are the purpose and scope of this subpart?
125.91 What is a ``Phase II existing facility''?
125.92 [Reserved]
125.93 What special definitions apply to this subpart?
125.94 How will requirements reflecting best technology available 
for minimizing adverse environmental impact be established for my 
Phase II existing facility?
125.95 As an owner or operator of a Phase II existing facility, what 
must I collect and submit when I apply for my reissued NPDES permit?
125.96 As an owner or operator of a Phase II existing facility, what 
monitoring must I perform?
125.97 As an owner or operator of a Phase II existing facility, what 
records must I keep and what information must I report?
125.98 As the Director, what must I do to comply with the 
requirements of this subpart?
125.99 What are approved design and construction technologies?

Subpart J--Requirements Applicable to Cooling Water Intake 
Structures for Phase II Existing Facilities Under Section 316(b) of 
the Act


Sec.  125.90  What are the purpose and scope of this subpart?

    (a) This subpart establishes requirements that apply to the 
location, design, construction, and capacity of cooling water intake 
structures at existing facilities that are subject to this subpart 
(i.e., Phase II existing facilities). The purpose of these requirements 
is to establish the best technology available for minimizing adverse 
environmental impact associated with the use of cooling water intake 
structures. These requirements are implemented through National 
Pollutant Discharge Elimination System (NPDES) permits issued under 
section 402 of the Clean Water Act (CWA).
    (b) Existing facilities that are not subject to requirements under 
this or another subpart of this part must meet requirements under 
section 316(b) of the CWA determined by the Director on a case-by-case, 
best professional judgment (BPJ) basis.
    (c) Alternative regulatory requirements. Notwithstanding any other 
provision of this subpart, if a State demonstrates to the Administrator 
that it has adopted alternative regulatory requirements in its NPDES 
program that will result in environmental performance within a 
watershed that is comparable to the reductions of impingement mortality 
and entrainment that would otherwise be achieved under Sec.  125.94, 
the Administrator must approve such alternative regulatory 
requirements.
    (d) Nothing in this subpart shall be construed to preclude or deny 
the right of any State or political subdivision of a State or any 
interstate agency under section 510 of the CWA to adopt or enforce any 
requirement with respect to control or abatement of pollution that is 
not less stringent than those required by Federal law.


Sec.  125.91  What is a ``Phase II Existing Facility''?

    (a) An existing facility, as defined in Sec.  125.93, is a Phase II 
existing facility subject to this subpart if it meets each of the 
following criteria:
    (1) It is a point source.
    (2) It uses or proposes to use cooling water intake structures with 
a total design intake flow of 50 million gallons per day (MGD) or more 
to withdraw cooling water from waters of the United States;
    (3) As its primary activity, the facility both generates and 
transmits electric power, or generates electric power but sells it to 
another entity for transmission; and
    (4) It uses at least 25 percent of water withdrawn exclusively for 
cooling purposes, measured on an average annual basis.
    (b) In the case of a Phase II existing facility that is co-located 
with a manufacturing facility, only that portion of the combined 
cooling water intake flow that is used by the Phase II facility to 
generate electricity for sale to another entity will be considered for 
purposes of determining whether the 50 MGD and 25 percent criteria in 
paragraphs (a)(2) and (4) of this section have been exceeded.
    (c) Use of a cooling water intake structure includes obtaining 
cooling water by any sort of contract or arrangement with one or more 
independent suppliers of cooling water if the supplier withdraws water 
from waters of the United States but is not itself a Phase II existing 
facility, except as provided in paragraph (d) of this section. This 
provision is intended to prevent circumvention of these requirements by 
creating arrangements to receive cooling water from an entity that is 
not itself a Phase II existing facility.
    (d) Notwithstanding paragraph (c) of this section, obtaining 
cooling water from a public water system or using treated effluent as 
cooling water does not constitute use of a cooling water intake 
structure for purposes of this subpart.


Sec.  125.92  [Reserved]


Sec.  125.93  What special definitions apply to this subpart?

    In addition to the definitions provided in Sec.  122.3 of this 
chapter, the following special definitions apply to this subpart:
    Adaptive management method is a type of project management method 
where a facility chooses an approach to meeting the project goal, 
monitors the effectiveness of that approach, and then based on 
monitoring and any other relevant information, makes any adjustments 
necessary to ensure continued progress toward the project's goal. This 
cycle of activity is repeated as necessary to reach the project's goal.
    Annual mean flow means the average of daily flows over a calendar 
year.
    All life stages means eggs, larvae, juveniles, and adults.
    Calculation baseline means an estimate of impingement mortality and 
entrainment that would occur at your site assuming that: the cooling 
water system has been designed as a once-

[[Page 41684]]

through system; the opening of the cooling water intake structure is 
located at, and the face of the standard \3/8\-inch mesh traveling 
screen is oriented parallel to, the shoreline near the surface of the 
source waterbody; and the baseline practices, procedures, and 
structural configuration are those that your facility would maintain in 
the absence of any structural or operational controls, including flow 
or velocity reductions, implemented in whole or in part for the 
purposes of reducing impingement mortality and entrainment. You may 
also choose to use the current level of impingement mortality and 
entrainment as the calculation baseline. The calculation baseline may 
be estimated using: historical impingement mortality and entrainment 
data from your facility or from another facility with comparable 
design, operational, and environmental conditions; current biological 
data collected in the waterbody in the vicinity of your cooling water 
intake structure; or current impingement mortality and entrainment data 
collected at your facility. You may request that the calculation 
baseline be modified to be based on a location of the opening of the 
cooling water intake structure at a depth other than at or near the 
surface if you can demonstrate to the Director that the other depth 
would correspond to a higher baseline level of impingement mortality 
and/or entrainment.
    Capacity utilization rate means the ratio between the average 
annual net generation of power by the facility (in MWh) and the total 
net capability of the facility to generate power (in MW) multiplied by 
the number of hours during a year. In cases where a facility has more 
than one intake structure, and each intake structure provides cooling 
water exclusively to one or more generating units, the capacity 
utilization rate may be calculated separately for each intake 
structure, based on the capacity utilization of the units it services. 
Applicable requirements under this subpart would then be determined 
separately for each intake structure. The average annual net generation 
should be measured over a five year period (if available) of 
representative operating conditions, unless the facility makes a 
binding commitment to maintain capacity utilization below 15 percent 
for the life of the permit, in which case the rate may be based on this 
commitment. For purposes of this subpart, the capacity utilization rate 
applies to only that portion of the facility that generates electricity 
for transmission or sale using a thermal cycle employing the steam 
water system as the thermodynamic medium.
    Closed-cycle recirculating system means a system designed, using 
minimized make-up and blowdown flows, to withdraw water from a natural 
or other water source to support contact and/or noncontact cooling uses 
within a facility. The water is usually sent to a cooling canal or 
channel, lake, pond, or tower to allow waste heat to be dissipated to 
the atmosphere and then is returned to the system. (Some facilities 
divert the waste heat to other process operations.) New source water 
(make-up water) is added to the system to replenish losses that have 
occurred due to blowdown, drift, and evaporation.
    Cooling water means water used for contact or noncontact cooling, 
including water used for equipment cooling, evaporative cooling tower 
makeup, and dilution of effluent heat content. The intended use of the 
cooling water is to absorb waste heat rejected from the process or 
processes used, or from auxiliary operations on the facility's 
premises. Cooling water that is used in a manufacturing process either 
before or after it is used for cooling is considered process water for 
the purposes of calculating the percentage of a facility's intake flow 
that is used for cooling purposes in Sec.  125.91(a)(4).
    Cooling water intake structure means the total physical structure 
and any associated constructed waterways used to withdraw cooling water 
from waters of the U.S. The cooling water intake structure extends from 
the point at which water is withdrawn from the surface water source up 
to, and including, the intake pumps.
    Design and construction technology means any physical configuration 
of the cooling water intake structure, or a technology that is placed 
in the water body in front of the cooling water intake structure, to 
reduce impingement mortality and/or entrainment. Design and 
construction technologies include, but are not limited to, location of 
the intake structure, intake screen systems, passive intake systems, 
fish diversion and/or avoidance systems, and fish handling and return 
systems. Restoration measures are not design and construction 
technologies for purposes of this definition.
    Design intake flow means the value assigned (during the cooling 
water intake structure design) to the total volume of water withdrawn 
from a source waterbody over a specific time period.
    Design intake velocity means the value assigned (during the design 
of a cooling water intake structure) to the average speed at which 
intake water passes through the open area of the intake screen (or 
other device) against which organisms might be impinged or through 
which they might be entrained.
    Diel means daily and refers to variation in organism abundance and 
density over a 24-hour period due to the influence of water movement, 
physical or chemical changes, and changes in light intensity.
    Entrainment means the incorporation of any life stages of fish and 
shellfish with intake water flow entering and passing through a cooling 
water intake structure and into a cooling water system.
    Estuary means a semi-enclosed body of water that has a free 
connection with open seas and within which the seawater is measurably 
diluted with fresh water derived from land drainage. The salinity of an 
estuary exceeds 0.5 parts per thousand (by mass) but is typically less 
than 30 parts per thousand (by mass).
    Existing facility means any facility that commenced construction as 
described in 40 CFR 122.29(b)(4) on or before January 17, 2002; and any 
modification of, or any addition of a unit at such a facility that does 
not meet the definition of a new facility at Sec.  125.83.
    Freshwater river or stream means a lotic (free-flowing) system that 
does not receive significant inflows of water from oceans or bays due 
to tidal action. For the purposes of this rule, a flow-through 
reservoir with a retention time of 7 days or less will be considered a 
freshwater river or stream.
    Impingement means the entrapment of any life stages of fish and 
shellfish on the outer part of an intake structure or against a 
screening device during periods of intake water withdrawal.
    Lake or reservoir means any inland body of open water with some 
minimum surface area free of rooted vegetation and with an average 
hydraulic retention time of more than 7 days. Lakes or reservoirs might 
be natural water bodies or impounded streams, usually fresh, surrounded 
by land or by land and a man-made retainer (e.g., a dam). Lakes or 
reservoirs might be fed by rivers, streams, springs, and/or local 
precipitation.
    Moribund means dying; close to death.
    Natural thermal stratification means the naturally occurring and/or 
existing division of a waterbody into horizontal layers of differing 
densities as a result of variations in temperature at different depths.
    Ocean means marine open coastal waters with a salinity greater than 
or

[[Page 41685]]

equal to 30 parts per thousand (by mass).
    Once-through cooling water system means a system designed to 
withdraw water from a natural or other water source, use it at the 
facility to support contact and/or noncontact cooling uses, and then 
discharge it to a waterbody without recirculation. Once-through cooling 
systems sometimes employ canals/channels, ponds, or non-recirculating 
cooling towers to dissipate waste heat from the water before it is 
discharged.
    Operational measure means a modification to any operation at a 
facility that serves to minimize impact to fish and shellfish from the 
cooling water intake structure. Examples of operational measures 
include, but are not limited to: reductions in cooling water intake 
flow through the use of variable speed pumps and seasonal flow 
reductions or shutdowns; and more frequent rotation of traveling 
screens.
    Phase II existing facility means any existing facility that meets 
the criteria specified in Sec.  125.91.
    Source water means the waters of the U.S. from which the cooling 
water is withdrawn.
    Supplier means an entity, other than the regulated facility, that 
owns and operates its own cooling water intake structure and directly 
withdraws water from waters of the United States. The supplier sells 
the cooling water to other facilities for their use, but may also use a 
portion of the water itself. An entity that provides potable water to 
residential populations (e.g., public water system) is not a supplier 
for purposes of this subpart.
    Thermocline means the middle layer of a thermally stratified lake 
or a reservoir. In this layer, there is a rapid change in temperatures 
between the top and bottom of the layer.
    Tidal river means the most seaward reach of a river or stream where 
the salinity is typically less than or equal to 0.5 parts per thousand 
(by mass) at a time of annual low flow and whose surface elevation 
responds to the effects of coastal lunar tides.


Sec.  125.94  How will requirements reflecting best technology 
available for minimizing adverse environmental impact be established 
for my Phase II existing facility?

    (a) Compliance alternatives. You must select and implement one of 
the following five alternatives for establishing best technology 
available for minimizing adverse environmental impact at your facility:
    (1)(i)You may demonstrate to the Director that you have reduced, or 
will reduce, your flow commensurate with a closed-cycle recirculating 
system. In this case, you are deemed to have met the applicable 
performance standards and will not be required to demonstrate further 
that your facility meets the impingement mortality and entrainment 
performance standards specified in paragraph (b) of this section. In 
addition, you are not subject to the requirements in Sec. Sec.  125.95, 
125.96, 125.97, or 125.98. However, you may still be subject to any 
more stringent requirements established under paragraph (e) of this 
section; or
    (ii) You may demonstrate to the Director that you have reduced, or 
will reduce, your maximum through-screen design intake velocity to 0.5 
ft/s or less. In this case, you are deemed to have met the impingement 
mortality performance standards and will not be required to demonstrate 
further that your facility meets the performance standards for 
impingement mortality specified in paragraph (b) of this section and 
you are not subject to the requirements in Sec. Sec.  125.95, 125.96, 
125.97, or 125.98 as they apply to impingement mortality. However, you 
are still subject to any applicable requirements for entrainment 
reduction and may still be subject to any more stringent requirements 
established under paragraph (e) of this section.
    (2) You may demonstrate to the Director that your existing design 
and construction technologies, operational measures, and/or restoration 
measures meet the performance standards specified in paragraph (b) of 
this section and/or the restoration requirements in paragraph (c) of 
this section.
    (3) You may demonstrate to the Director that you have selected, and 
will install and properly operate and maintain, design and construction 
technologies, operational measures, and/or restoration measures that 
will, in combination with any existing design and construction 
technologies, operational measures, and/or restoration measures, meet 
the performance standards specified in paragraph (b) of this section 
and/or the restoration requirements in paragraph (c) of this section;
    (4) You may demonstrate to the Director that you have installed, or 
will install, and properly operate and maintain an approved design and 
construction technology in accordance with Sec.  125.99(a) or (b); or
    (5) You may demonstrate to the Director that you have selected, 
installed, and are properly operating and maintaining, or will install 
and properly operate and maintain design and construction technologies, 
operational measures, and/or restoration measures that the Director has 
determined to be the best technology available to minimize adverse 
environmental impact for your facility in accordance with paragraphs 
(a)(5)(i) or (ii) of this section.
    (i) If the Director determines that data specific to your facility 
demonstrate that the costs of compliance under alternatives in 
paragraphs (a)(2) through (4) of this section would be significantly 
greater than the costs considered by the Administrator for a facility 
like yours in establishing the applicable performance standards in 
paragraph (b) of this section, the Director must make a site-specific 
determination of the best technology available for minimizing adverse 
environmental impact. This determination must be based on reliable, 
scientifically valid cost and performance data submitted by you and any 
other information that the Director deems appropriate. The Director 
must establish site-specific alternative requirements based on new and/
or existing design and construction technologies, operational measures, 
and/or restoration measures that achieve an efficacy that is, in the 
judgment of the Director, as close as practicable to the applicable 
performance standards in paragraph (b) of this section, without 
resulting in costs that are significantly greater than the costs 
considered by the Administrator for a facility like yours in 
establishing the applicable performance standards. The Director's site-
specific determination may conclude that design and construction 
technologies, operational measures, and/or restoration measures in 
addition to those already in place are not justified because of the 
significantly greater costs. To calculate the costs considered by the 
Administrator for a facility like yours in establishing the applicable 
performance standards you must:
    (A) Determine which technology the Administrator modeled as the 
most appropriate compliance technology for your facility;
    (B) Using the Administrator's costing equations, calculate the 
annualized capital and net operation and maintenance (O&M) costs for a 
facility with your design intake flow using this technology;
    (C) Determine the annualized net revenue loss associated with net 
construction downtime that the Administrator modeled for your facility 
to install this technology;
    (D) Determine the annualized pilot study costs that the 
Administrator modeled for your facility to test and optimize this 
technology;
    (E) Sum the cost items in paragraphs (a)(5)(i)(B), (C), and (D) of 
this section; and

[[Page 41686]]

    (F) Determine if the performance standards that form the basis of 
these estimates (i.e., impingement mortality reduction only or 
impingement mortality and entrainment reduction) are applicable to your 
facility, and if necessary, adjust the estimates to correspond to the 
applicable performance standards.
    (ii) If the Director determines that data specific to your facility 
demonstrate that the costs of compliance under alternatives in 
paragraphs (a)(2) through (4) of this section would be significantly 
greater than the benefits of complying with the applicable performance 
standards at your facility, the Director must make a site-specific 
determination of best technology available for minimizing adverse 
environmental impact. This determination must be based on reliable, 
scientifically valid cost and performance data submitted by you and any 
other information the Director deems appropriate. The Director must 
establish site-specific alternative requirements based on new and/or 
existing design and construction technologies, operational measures, 
and/or restoration measures that achieve an efficacy that, in the 
judgment of the Director, is as close as practicable to the applicable 
performance standards in paragraph (b) of this section without 
resulting in costs that are significantly greater than the benefits at 
your facility. The Director's site-specific determination may conclude 
that design and construction technologies, operational measures, and/or 
restoration measures in addition to those already in place are not 
justified because the costs would be significantly greater than the 
benefits at your facility.
    (b) National performance standards.--(1) Impingement mortality 
performance standards. If you choose compliance alternatives in 
paragraphs (a)(2), (a)(3), or (a)(4) of this section, you must reduce 
impingement mortality for all life stages of fish and shellfish by 80 
to 95 percent from the calculation baseline.
    (2) Entrainment performance standards. If you choose compliance 
alternatives in paragraphs (a)(1)(ii), (a)(2), (a)(3), or (a)(4) of 
this section, you must also reduce entrainment of all life stages of 
fish and shellfish by 60 to 90 percent from the calculation baseline 
if:
    (i) Your facility has a capacity utilization rate of 15 percent or 
greater, and
    (ii)(A) Your facility uses cooling water withdrawn from a tidal 
river, estuary, ocean, or one of the Great Lakes; or
    (B) Your facility uses cooling water withdrawn from a freshwater 
river or stream and the design intake flow of your cooling water intake 
structures is greater than five percent of the mean annual flow.
    (3) Additional performance standards for facilities withdrawing 
from a lake (other than one of the Great Lakes) or a reservoir. If your 
facility withdraws cooling water from a lake (other than one of the 
Great Lakes) or a reservoir and you propose to increase the design 
intake flow of cooling water intake structures it uses, your increased 
design intake flow must not disrupt the natural thermal stratification 
or turnover pattern (where present) of the source water, except in 
cases where the disruption does not adversely affect the management of 
fisheries. In determining whether any such disruption does not 
adversely affect the management of fisheries, you must consult with 
Federal, State, or Tribal fish and wildlife management agencies).
    (4) Use of performance standards for site-specific determinations 
of best technology available. The performance standards in paragraphs 
(b)(1) through (3) of this section must also be used for determining 
eligibility for site-specific determinations of best technology 
available for minimizing adverse environmental impact and establishing 
site specific requirements that achieve an efficacy as close as 
practicable to the applicable performance standards without resulting 
in costs that are significantly greater than those considered by the 
Administrator for a facility like yours in establishing the performance 
standards or costs that are significantly greater than the benefits at 
your facility, pursuant to Sec.  125.94(a)(5).
    (c) Requirements for restoration measures. With the approval of the 
Director, you may implement and adaptively manage restoration measures 
that produce and result in increases of fish and shellfish in your 
facility's watershed in place of or as a supplement to installing 
design and control technologies and/or adopting operational measures 
that reduce impingement mortality and entrainment. You must demonstrate 
to the Director that:
    (1) You have evaluated the use of design and construction 
technologies and operational measures for your facility and determined 
that the use of restoration measures is appropriate because meeting the 
applicable performance standards or site-specific requirements through 
the use of design and construction technologies and/or operational 
measures alone is less feasible, less cost-effective, or less 
environmentally desirable than meeting the standards or requirements in 
whole or in part through the use of restoration measures; and
    (2) The restoration measures you will implement, alone or in 
combination with design and construction technologies and/or 
operational measures, will produce ecological benefits (fish and 
shellfish), including maintenance or protection of community structure 
and function in your facility's waterbody or watershed, at a level that 
is substantially similar to the level you would achieve by meeting the 
applicable performance standards under paragraph (b) of this section, 
or that satisfies alternative site-specific requirements established 
pursuant to paragraph (a)(5) of this section.
    (d)(1) Compliance using a technology installation and operation 
plan or restoration plan. If you choose one of the compliance 
alternatives in paragraphs (a)(2), (3), (4), or (5) of this section, 
you may request that compliance with the requirements of Sec.  
125.94(b) during the first permit containing requirements consistent 
with this subpart be determined based on whether you have complied with 
the construction, operational, maintenance, monitoring, and adaptive 
management requirements of a Technology Installation and Operation Plan 
developed in accordance with Sec.  125.95(b)(4)(ii) (for any design and 
construction technologies and/or operational measures) and/or a 
Restoration Plan developed in accordance with Sec.  125.95(b)(5) (for 
any restoration measures). The Technology Installation and Operation 
Plan must be designed to meet applicable performance standards in 
paragraph (b) of this section or alternative site-specific requirements 
developed pursuant to paragraph (a)(5) of this section. The Restoration 
Plan must be designed to achieve compliance with the applicable 
requirements in paragraph (c) of this section.
    (2) During subsequent permit terms, if you selected and installed 
design and construction technologies and/or operational measures and 
have been in compliance with the construction, operational, 
maintenance, monitoring, and adaptive management requirements of your 
Technology Installation and Operation Plan during the preceding permit 
term, you may request that compliance with the requirements of Sec.  
125.94 during the following permit term be determined based on whether 
you remain in compliance with your Technology Installation and 
Operation Plan, revised in accordance with your adaptive management 
plan in Sec.  125.95(b)(4)(ii)(C) if applicable performance standards 
are not being

[[Page 41687]]

met. Each request and approval of a Technology Installation and 
Operation Plan shall be limited to one permit term.
    (3) During subsequent permit terms, if you selected and installed 
restoration measures and have been in compliance with the construction, 
operational, maintenance, monitoring, and adaptive management 
requirements in your Restoration Plan during the preceding permit term, 
you may request that compliance with the requirements of this section 
during the following permit term be determined based on whether you 
remain in compliance with your Restoration Plan, revised in accordance 
with your adaptive management plan in Sec.  125.95(b)(5)(v) if 
applicable performance standards are not being met. Each request and 
approval of a Restoration Plan shall be limited to one permit term.
    (e) More stringent standards. The Director may establish more 
stringent requirements as best technology available for minimizing 
adverse environmental impact if the Director determines that your 
compliance with the applicable requirements of this section would not 
meet the requirements of applicable State and Tribal law, or other 
Federal law.
    (f) Nuclear facilities. If you demonstrate to the Director based on 
consultation with the Nuclear Regulatory Commission that compliance 
with this subpart would result in a conflict with a safety requirement 
established by the Commission, the Director must make a site-specific 
determination of best technology available for minimizing adverse 
environmental impact that would not result in a conflict with the 
Nuclear Regulatory Commission's safety requirement.


Sec.  125.95  As an owner or operator of a Phase II existing facility, 
what must I collect and submit when I apply for my reissued NPDES 
permit?

    (a)(1) You must submit to the Director the Proposal for Information 
Collection required in paragraph (b)(1) of this section prior to the 
start of information collection activities;
    (2) You must submit to the Director the information required in 40 
CFR 122.21(r)(2), (r)(3) and (r)(5) and any applicable portions of the 
Comprehensive Demonstration Study (Study), except for the Proposal for 
Information Collection required by paragraph (b)(1) of this section; 
and
    (i) You must submit your NPDES permit application in accordance 
with the time frames specified in 40 CFR 122.21(d)(2).
    (ii) If your existing permit expires before [Insert date 4 years 
after date of publication in the FR], you may request that the Director 
establish a schedule for you to submit the information required by this 
section as expeditiously as practicable, but not later than [Insert 
date 3 years and 180 days after date of publication in the FR]. Between 
the time your existing permit expires and the time an NPDES permit 
containing requirements consistent with this subpart is issued to your 
facility, the best technology available to minimize adverse 
environmental impact will continue to be determined based on the 
Director's best professional judgment.
    (3) In subsequent permit terms, the Director may approve a request 
to reduce the information required to be submitted in your permit 
application on the cooling water intake structure(s) and the source 
waterbody, if conditions at your facility and in the waterbody remain 
substantially unchanged since your previous application. You must 
submit your request for reduced cooling water intake structure and 
waterbody application information to the Director at least one year 
prior to the expiration of the permit. Your request must identify each 
required information item in Sec.  122.21(r) and this section that you 
determine has not substantially changed since the previous permit 
application and the basis for your determination.
    (b) Comprehensive Demonstration Study. The purpose of the 
Comprehensive Demonstration Study (The Study) is to characterize 
impingement mortality and entrainment, to describe the operation of 
your cooling water intake structures, and to confirm that the 
technologies, operational measures, and/or restoration measures you 
have selected and installed, or will install, at your facility meet the 
applicable requirements of Sec.  125.94. All facilities except those 
that have met the applicable requirements in accordance with Sec. Sec.  
125.94(a)(1)(i), 125.94(a)(1)(ii), and 125.94(a)(4) must submit all 
applicable portions of the Comprehensive Demonstration Study to the 
Director in accordance with paragraph (a) of this section. Facilities 
that meet the requirements in Sec.  125.94(a)(1)(i) by reducing their 
flow commensurate with a closed-cycle, recirculating system are not 
required to submit a Comprehensive Demonstration Study. Facilities that 
meet the requirements in Sec.  125.94(a)(1)(ii) by reducing their 
design intake velocity to 0.5 ft/sec or less are required to submit a 
Study only for the entrainment requirements, if applicable. Facilities 
that meet the requirements in Sec.  125.94(a)(4) and have installed and 
properly operate and maintain an approved design and construction 
technology (in accordance with Sec.  125.99) are required to submit 
only the Technology Installation and Operation Plan in paragraph (b)(4) 
of this section and the Verification Monitoring Plan in paragraph 
(b)(7) of this section. Facilities that are required to meet only 
impingement mortality performance standards in Sec.  125.94(b)(1) are 
required to submit only a Study for the impingement mortality reduction 
requirements. The Comprehensive Demonstration Study must include:
    (1) Proposal For Information Collection. You must submit to the 
Director for review and comment a description of the information you 
will use to support your Study. The Proposal for Information must be 
submitted prior to the start of information collection activities, but 
you may initiate such activities prior to receiving comment from the 
Director. The proposal must include:
    (i) A description of the proposed and/or implemented technologies, 
operational measures, and/or restoration measures to be evaluated in 
the Study;
    (ii) A list and description of any historical studies 
characterizing impingement mortality and entrainment and/or the 
physical and biological conditions in the vicinity of the cooling water 
intake structures and their relevance to this proposed Study. If you 
propose to use existing data, you must demonstrate the extent to which 
the data are representative of current conditions and that the data 
were collected using appropriate quality assurance/quality control 
procedures;
    (iii) A summary of any past or ongoing consultations with 
appropriate Federal, State, and Tribal fish and wildlife agencies that 
are relevant to this Study and a copy of written comments received as a 
result of such consultations; and
    (iv) A sampling plan for any new field studies you propose to 
conduct in order to ensure that you have sufficient data to develop a 
scientifically valid estimate of impingement mortality and entrainment 
at your site. The sampling plan must document all methods and quality 
assurance/quality control procedures for sampling and data analysis. 
The sampling and data analysis methods you propose must be appropriate 
for a quantitative survey and include consideration of the methods used 
in other studies performed in the source waterbody. The sampling plan 
must include a description of the study area (including the area of 
influence of the cooling water intake structure(s)), and provide a

[[Page 41688]]

taxonomic identification of the sampled or evaluated biological 
assemblages (including all life stages of fish and shellfish).
    (2) Source waterbody flow information. You must submit to the 
Director the following source waterbody flow information:
    (i) If your cooling water intake structure is located in a 
freshwater river or stream, you must provide the annual mean flow of 
the waterbody and any supporting documentation and engineering 
calculations to support your analysis of whether your design intake 
flow is greater than five percent of the mean annual flow of the river 
or stream for purposes of determining applicable performance standards 
under paragraph (b) of this section. Representative historical data 
(from a period of time up to 10 years, if available) must be used; and
    (ii) If your cooling water intake structure is located in a lake 
(other than one of the Great Lakes) or a reservoir and you propose to 
increase its design intake flow, you must provide a description of the 
thermal stratification in the waterbody, and any supporting 
documentation and engineering calculations to show that the total 
design intake flow after the increase will not disrupt the natural 
thermal stratification and turnover pattern in a way that adversely 
impacts fisheries, including the results of any consultations with 
Federal, State, or Tribal fish and wildlife management agencies.
    (3) Impingement Mortality and/or Entrainment Characterization 
Study. You must submit to the Director an Impingement Mortality and/or 
Entrainment Characterization Study whose purpose is to provide 
information to support the development of a calculation baseline for 
evaluating impingement mortality and entrainment and to characterize 
current impingement mortality and entrainment. The Impingement 
Mortality and/or Entrainment Characterization Study must include the 
following, in sufficient detail to support development of the other 
elements of the Comprehensive Demonstration Study:
    (i) Taxonomic identifications of all life stages of fish, 
shellfish, and any species protected under Federal, State, or Tribal 
Law (including threatened or endangered species) that are in the 
vicinity of the cooling water intake structure(s) and are susceptible 
to impingement and entrainment;
    (ii) A characterization of all life stages of fish, shellfish, and 
any species protected under Federal, State, or Tribal Law (including 
threatened or endangered species) identified pursuant to paragraph 
(b)(3)(i) of this section, including a description of the abundance and 
temporal and spatial characteristics in the vicinity of the cooling 
water intake structure(s), based on sufficient data to characterize 
annual, seasonal, and diel variations in impingement mortality and 
entrainment (e.g., related to climate and weather differences, 
spawning, feeding and water column migration). These may include 
historical data that are representative of the current operation of 
your facility and of biological conditions at the site;
    (iii) Documentation of the current impingement mortality and 
entrainment of all life stages of fish, shellfish, and any species 
protected under Federal, State, or Tribal Law (including threatened or 
endangered species) identified pursuant to paragraph (b)(3)(i) of this 
section and an estimate of impingement mortality and entrainment to be 
used as the calculation baseline. The documentation may include 
historical data that are representative of the current operation of 
your facility and of biological conditions at the site. Impingement 
mortality and entrainment samples to support the calculations required 
in paragraphs (b)(4)(i)(C) and (b)(5)(iii) of this section must be 
collected during periods of representative operational flows for the 
cooling water intake structure and the flows associated with the 
samples must be documented;
    (4) Technology and compliance assessment information--(i) Design 
and Construction Technology Plan. If you choose to use design and 
construction technologies and/or operational measures, in whole or in 
part to meet the requirements of Sec.  125.94(a)(2) or (3), you must 
submit a Design and Construction Technology Plan to the Director for 
review and approval. In the plan, you must provide the capacity 
utilization rate for your facility (or for individual intake structures 
where applicable, in accordance with Sec.  125.93) and provide 
supporting data (including the average annual net generation of the 
facility (in MWh) measured over a five year period (if available) of 
representative operating conditions and the total net capacity of the 
facility (in MW)) and underlying calculations. The plan must explain 
the technologies and/or operational measures you have in place and/or 
have selected to meet the requirements in Sec.  125.94. (Examples of 
potentially appropriate technologies may include, but are not limited 
to, wedgewire screens, fine mesh screens, fish handling and return 
systems, barrier nets, aquatic filter barrier systems, vertical and/or 
lateral relocation of the cooling water intake structure, and 
enlargement of the cooling water intake structure opening to reduce 
velocity. Examples of potentially appropriate operational measures may 
include, but are not limited to, seasonal shutdowns, reductions in 
flow, and continuous or more frequent rotation of traveling screens.) 
The plan must contain the following information:
    (A) A narrative description of the design and operation of all 
design and construction technologies and/or operational measures 
(existing and proposed), including fish handling and return systems, 
that you have in place or will use to meet the requirements to reduce 
impingement mortality of those species expected to be most susceptible 
to impingement, and information that demonstrates the efficacy of the 
technologies and/or operational measures for those species;
    (B) A narrative description of the design and operation of all 
design and construction technologies and/or operational measures 
(existing and proposed) that you have in place or will use to meet the 
requirements to reduce entrainment of those species expected to be the 
most susceptible to entrainment, if applicable, and information that 
demonstrates the efficacy of the technologies and/or operational 
measures for those species;
    (C) Calculations of the reduction in impingement mortality and 
entrainment of all life stages of fish and shellfish that would be 
achieved by the technologies and/or operational measures you have 
selected based on the Impingement Mortality and/or Entrainment 
Characterization Study in paragraph (b)(3) of this section. In 
determining compliance with any requirements to reduce impingement 
mortality or entrainment, you must assess the total reduction in 
impingement mortality and entrainment against the calculation baseline 
determined in accordance with paragraph (b)(3) of this section. 
Reductions in impingement mortality and entrainment from this 
calculation baseline as a result of any design and construction 
technologies and/or operational measures already implemented at your 
facility should be added to the reductions expected to be achieved by 
any additional design and/or construction technologies and operational 
measures that will be implemented, and any increases in fish and 
shellfish within the waterbody attributable to your restoration 
measures. Facilities that recirculate a portion of their flow, but do 
not reduce

[[Page 41689]]

flow sufficiently to satisfy the compliance option in Sec.  
125.94(a)(1)(i) may take into account the reduction in impingement 
mortality and entrainment associated with the reduction in flow when 
determining the net reduction associated with existing design and 
construction technologies and/or operational measures. This estimate 
must include a site-specific evaluation of the suitability of the 
technologies and/or operational measures based on the species that are 
found at the site, and may be determined based on representative 
studies (i.e., studies that have been conducted at a similar facility's 
cooling water intake structures located in the same waterbody type with 
similar biological characteristics) and/or site-specific technology 
prototype or pilot studies; and
    (D) Design and engineering calculations, drawings, and estimates 
prepared by a qualified professional to support the descriptions 
required by paragraphs (b)(4)(i)(A) and (B) of this section.
    (ii) Technology Installation and Operation Plan. If you choose the 
compliance alternative in Sec.  125.94(a)(2), (3), (4), or (5) and use 
design and construction technologies and/or operational measures in 
whole or in part to comply with the applicable requirements of Sec.  
125.94, you must submit the following information with your application 
for review and approval by the Director:
    (A) A schedule for the installation and maintenance of any new 
design and construction technologies. Any downtime of generating units 
to accommodate installation and/or maintenance of these technologies 
should be scheduled to coincide with otherwise necessary downtime 
(e.g., for repair, overhaul, or routine maintenance of the generating 
units) to the extent practicable. Where additional downtime is 
required, you may coordinate scheduling of this downtime with the North 
American Electric Reliability Council and/or other generators in your 
area to ensure that impacts to reliability and supply are minimized;
    (B) List of operational and other parameters to be monitored, and 
the location and frequency that you will monitor them;
    (C) List of activities you will undertake to ensure to the degree 
practicable the efficacy of installed design and construction 
technologies and operational measures, and your schedule for 
implementing them;
    (D) A schedule and methodology for assessing the efficacy of any 
installed design and construction technologies and operational measures 
in meeting applicable performance standards or site-specific 
requirements, including an adaptive management plan for revising design 
and construction technologies, operational measures, operation and 
maintenance requirements, and/or monitoring requirements if your 
assessment indicates that applicable performance standards or site-
specific requirements are not being met; and
    (E) If you choose the compliance alternative in Sec.  125.94(a)(4), 
documentation that the appropriate site conditions in Sec.  125.99(a) 
or (b) exist at your facility.
    (5) Restoration Plan. If you propose to use restoration measures, 
in whole or in part, to meet the applicable requirements in Sec.  
125.94, you must submit the following information with your application 
for review and approval by the Director. You must address species of 
concern identified in consultation with Federal, State, and Tribal fish 
and wildlife management agencies with responsibility for fisheries and 
wildlife potentially affected by your cooling water intake 
structure(s).
    (i) A demonstration to the Director that you have evaluated the use 
of design and construction technologies and/or operational measures for 
your facility and an explanation of how you determined that restoration 
would be more feasible, cost-effective, or environmentally desirable;
    (ii) A narrative description of the design and operation of all 
restoration measures (existing and proposed) that you have in place or 
will use to produce fish and shellfish;
    (iii) Quantification of the ecological benefits of the proposed 
restoration measures. You must use information from the Impingement 
Mortality and/or Entrainment Characterization Study required in 
paragraph (b)(3) of this section, and any other available and 
appropriate information, to estimate the reduction in fish and 
shellfish impingement mortality and/or entrainment that would be 
necessary for your facility to comply with Sec.  125.94(c)(2). You must 
then calculate the production of fish and shellfish that you will 
achieve with the restoration measures you will or have already 
installed. You must include a discussion of the nature and magnitude of 
uncertainty associated with the performance of these restoration 
measures. You must also include a discussion of the time frame within 
which these ecological benefits are expected to accrue;
    (iv) Design calculations, drawings, and estimates to document that 
your proposed restoration measures in combination with design and 
construction technologies and/or operational measures, or alone, will 
meet the requirements of Sec.  125.94(c)(2). If the restoration 
measures address the same fish and shellfish species identified in the 
Impingement Mortality and/or Entrainment Characterization Study (in-
kind restoration), you must demonstrate that the restoration measures 
will produce a level of these fish and shellfish substantially similar 
to that which would result from meeting applicable performance 
standards in Sec.  125.94(b), or that they will satisfy site-specific 
requirements established pursuant to Sec.  125.94(a)(5). If the 
restoration measures address fish and shellfish species different from 
those identified in the Impingement Mortality and/or Entrainment 
Characterization Study (out-of-kind restoration), you must demonstrate 
that the restoration measures produce ecological benefits substantially 
similar to or greater than those that would be realized through in-kind 
restoration. Such a demonstration should be based on a watershed 
approach to restoration planning and consider applicable multi-agency 
watershed restoration plans, site-specific peer-reviewed ecological 
studies, and/or consultation with appropriate Federal, State, and 
Tribal fish and wildlife management agencies.
    (v) A plan utilizing an adaptive management method for 
implementing, maintaining, and demonstrating the efficacy of the 
restoration measures you have selected and for determining the extent 
to which the restoration measures, or the restoration measures in 
combination with design and construction technologies and operational 
measures, have met the applicable requirements of Sec.  125.94(c)(2). 
The plan must include:
    (A) A monitoring plan that includes a list of the restoration 
parameters that will be monitored, the frequency at which you will 
monitor them, and success criteria for each parameter;
    (B) A list of activities you will undertake to ensure the efficacy 
of the restoration measures, a description of the linkages between 
these activities and the items in paragraph (b)(5)(v)(A) of this 
section, and an implementation schedule; and
    (C) A process for revising the Restoration Plan as new information, 
including monitoring data, becomes available, if the applicable 
requirements under Sec.  125.94(c)(2) are not being met.
    (vi) A summary of any past or ongoing consultation with appropriate 
Federal, State, and Tribal fish and wildlife management agencies on 
your use of restoration measures including a copy of

[[Page 41690]]

any written comments received as a result of such consultations;
    (vii) If requested by the Director, a peer review of the items you 
submit for the Restoration Plan. You must choose the peer reviewers in 
consultation with the Director who may consult with EPA and Federal, 
State, and Tribal fish and wildlife management agencies with 
responsibility for fish and wildlife potentially affected by your 
cooling water intake structure(s). Peer reviewers must have appropriate 
qualifications (e.g., in the fields of geology, engineering, and/or 
biology, etc.) depending upon the materials to be reviewed; and
    (viii) A description of the information to be included in a bi-
annual status report to the Director.
    (6) Information to support site-specific determination of best 
technology available for minimizing adverse environmental impact. If 
you have requested a site-specific determination of best technology 
available for minimizing adverse environmental impact pursuant to Sec.  
125.94(a)(5)(i) because of costs significantly greater than those 
considered by the Administrator for a facility like yours in 
establishing the applicable performance standards of Sec.  125.94(b), 
you are required to provide to the Director the information specified 
in paragraphs (b)(6)(i) and (b)(6)(iii) of this section. If you have 
requested a site-specific determination of best technology available 
for minimizing adverse environmental impact pursuant to Sec.  
125.94(a)(5)(ii) because of costs significantly greater than the 
benefits of meeting the applicable performance standards of Sec.  
125.94(b) at your facility, you must provide the information specified 
in paragraphs (b)(6)(i), (b)(6)(ii), and (b)(6)(iii) of this section:
    (i) Comprehensive Cost Evaluation Study. You must perform and 
submit the results of a Comprehensive Cost Evaluation Study, that 
includes:
    (A) Engineering cost estimates in sufficient detail to document the 
costs of implementing design and construction technologies, operational 
measures, and/or restoration measures at your facility that would be 
needed to meet the applicable performance standards of Sec.  125.94(b);
    (B) A demonstration that the costs documented in paragraph 
(b)(6)(i)(A) of this section significantly exceed either those 
considered by the Administrator for a facility like yours in 
establishing the applicable performance standards or the benefits of 
meeting the applicable performance standards at your facility; and
    (C) Engineering cost estimates in sufficient detail to document the 
costs of implementing the design and construction technologies, 
operational measures, and/or restoration measures in your Site-Specific 
Technology Plan developed in accordance with paragraph (b)(6)(iii) of 
this section.
    (ii) Benefits Valuation Study. If you are seeking a site-specific 
determination of best technology available for minimizing adverse 
environmental impact because of costs significantly greater than the 
benefits of meeting the applicable performance standards of Sec.  
125.94(b) at your facility, you must use a comprehensive methodology to 
fully value the impacts of impingement mortality and entrainment at 
your site and the benefits achievable by meeting the applicable 
performance standards. In addition to the valuation estimates, the 
benefit study must include the following:
    (A) A description of the methodology(ies) used to value commercial, 
recreational, and ecological benefits (including any non-use benefits, 
if applicable);
    (B) Documentation of the basis for any assumptions and quantitative 
estimates. If you plan to use an entrainment survival rate other than 
zero, you must submit a determination of entrainment survival at your 
facility based on a study approved by the Director;
    (C) An analysis of the effects of significant sources of 
uncertainty on the results of the study; and
    (D) If requested by the Director, a peer review of the items you 
submit in the Benefits Valuation Study. You must choose the peer 
reviewers in consultation with the Director who may consult with EPA 
and Federal, State, and Tribal fish and wildlife management agencies 
with responsibility for fish and wildlife potentially affected by your 
cooling water intake structure. Peer reviewers must have appropriate 
qualifications depending upon the materials to be reviewed.
    (E) A narrative description of any non-monetized benefits that 
would be realized at your site if you were to meet the applicable 
performance standards and a qualitative assessment of their magnitude 
and significance.
    (iii) Site-Specific Technology Plan. Based on the results of the 
Comprehensive Cost Evaluation Study required by paragraph (b)(6)(i) of 
this section, and the Benefits Valuation Study required by paragraph 
(b)(6)(ii) of this section, if applicable, you must submit a Site-
Specific Technology Plan to the Director for review and approval. The 
plan must contain the following information:
    (A) A narrative description of the design and operation of all 
existing and proposed design and construction technologies, operational 
measures, and/or restoration measures that you have selected in 
accordance with Sec.  125.94(a)(5);
    (B) An engineering estimate of the efficacy of the proposed and/or 
implemented design and construction technologies or operational 
measures, and/or restoration measures. This estimate must include a 
site-specific evaluation of the suitability of the technologies or 
operational measures for reducing impingement mortality and/or 
entrainment (as applicable) of all life stages of fish and shellfish 
based on representative studies (e.g., studies that have been conducted 
at cooling water intake structures located in the same waterbody type 
with similar biological characteristics) and, if applicable, site-
specific technology prototype or pilot studies. If restoration measures 
will be used, you must provide a Restoration Plan that includes the 
elements described in paragraph (b)(5) of this section.
    (C) A demonstration that the proposed and/or implemented design and 
construction technologies, operational measures, and/or restoration 
measures achieve an efficacy that is as close as practicable to the 
applicable performance standards of Sec.  125.94(b) without resulting 
in costs significantly greater than either the costs considered by the 
Administrator for a facility like yours in establishing the applicable 
performance standards, or as appropriate, the benefits of complying 
with the applicable performance standards at your facility;
    (D) Design and engineering calculations, drawings, and estimates 
prepared by a qualified professional to support the elements of the 
Plan.
    (7) Verification Monitoring Plan. If you comply using compliance 
alternatives in Sec.  125.94(a)(2), (3), (4), or (5) using design and 
construction technologies and/or operational measures, you must submit 
a plan to conduct, at a minimum, two years of monitoring to verify the 
full-scale performance of the proposed or already implemented 
technologies and/or operational measures. The verification study must 
begin once the design and construction technologies and/or operational 
measures are installed and continue for a period of time that is 
sufficient to demonstrate to the Director whether the facility is 
meeting the applicable performance standards in Sec.  125.94(b) or 
site-specific requirements

[[Page 41691]]

developed pursuant to Sec.  125.94(a)(5). The plan must provide the 
following:
    (i) Description of the frequency and duration of monitoring, the 
parameters to be monitored, and the basis for determining the 
parameters and the frequency and duration for monitoring. The 
parameters selected and duration and frequency of monitoring must be 
consistent with any methodology for assessing success in meeting 
applicable performance standards in your Technology Installation and 
Operation Plan as required by paragraph (b)(4)(ii) of this section.
    (ii) A proposal on how naturally moribund fish and shellfish that 
enter the cooling water intake structure would be identified and taken 
into account in assessing success in meeting the performance standards 
in Sec.  125.94(b).
    (iii)A description of the information to be included in a bi-annual 
status report to the Director.


Sec.  125.96  As an owner or operator of a Phase II existing facility, 
what monitoring must I perform?

    As an owner or operator of a Phase II existing facility, you must 
perform monitoring, as applicable, in accordance with the Technology 
Installation and Operation Plan required by Sec.  125.95(b)(4)(ii), the 
Restoration Plan required by Sec.  125.95(b)(5), the Verification 
Monitoring Plan required by Sec.  125.95(b)(7), and any additional 
monitoring specified by the Director to demonstrate compliance with the 
applicable requirements of Sec.  125.94.


Sec.  125.97  As an owner or operator of a Phase II existing facility, 
what records must I keep and what information must I report?

    As an owner or operator of a Phase II existing facility you are 
required to keep records and report information and data to the 
Director as follows:
    (a) You must keep records of all the data used to complete the 
permit application and show compliance with the requirements of Sec.  
125.94, any supplemental information developed under Sec.  125.95, and 
any compliance monitoring data submitted under Sec.  125.96, for a 
period of at least three (3) years from date of permit issuance. The 
Director may require that these records be kept for a longer period.
    (b) You must submit a status report to the Director for review 
every two years that includes appropriate monitoring data and other 
information as specified by the Director in accordance with Sec.  
125.98(b)(5).


Sec.  125.98  As the Director, what must I do to comply with the 
requirements of this subpart?

    (a) Permit application. As the Director, you must review materials 
submitted by the applicant under 40 CFR 122.21(r) and Sec.  125.95 
before each permit renewal or reissuance.
    (1) You must review and comment on the Proposal for Information 
Collection submitted by the facility in accordance with Sec.  
125.95(a)(1). You are encouraged to provide comments expeditiously so 
that the permit applicant can make responsive modifications to its 
information gathering activities. If a facility submits a request in 
accordance with Sec.  125.95(a)(2)(ii) for an alternate schedule for 
submitting the information required in Sec.  125.95, you must approve a 
schedule that is as expeditious as practicable, but does not extend 
beyond January 7, 2008. If a facility submits a request in accordance 
with Sec.  125.95(a)(3) to reduce the information about their cooling 
water intake structures and the source waterbody required to be 
submitted in their permit application (other than with the first permit 
application after September 7, 2004), you must approve the request 
within 60 days if conditions at the facility and in the waterbody 
remain substantially unchanged since the previous application.
    (2) After receiving the permit application from the owner or 
operator of a Phase II existing facility, you must determine which of 
the requirements specified in Sec.  125.94 apply to the facility. In 
addition, you must review materials to determine compliance with the 
applicable requirements.
    (3) At each permit renewal, you must review the application 
materials and monitoring data to determine whether new or revised 
requirements for design and construction technologies, operational 
measures, or restoration measures should be included in the permit to 
meet the applicable performance standards in Sec.  125.94(b) or 
alternative site-specific requirements established pursuant to Sec.  
125.94(a)(5).
    (b) Permitting requirements. Section 316(b) requirements are 
implemented for a facility through an NPDES permit. As the Director, 
you must consider the information submitted by the Phase II existing 
facility in its permit application, and determine the appropriate 
requirements and conditions to include in the permit based on the 
compliance alternatives in Sec.  125.94(a). The following requirements 
must be included in each permit:
    (1) Cooling water intake structure requirements. The permit 
conditions must include the requirements that implement the applicable 
provisions of Sec.  125.94. You must evaluate the performance of the 
design and construction technologies, operational measures, and/or 
restoration measures proposed and implemented by the facility and 
require additional or different design and construction technologies, 
operational measure, and/or restoration measures, and/or improved 
operation and maintenance of existing technologies and measures, if 
needed to meet the applicable performance standards, restoration 
requirements, or alternative site-specific requirements. In determining 
compliance with the performance standards for facilities proposing to 
increase withdrawals of cooling water from a lake (other than a Great 
Lake) or a reservoir in Sec.  125.94(b)(3), you must consider 
anthropogenic factors (those not considered ``natural'') unrelated to 
the Phase II existing facility's cooling water intake structures that 
can influence the occurrence and location of a thermocline. These 
include source water inflows, other water withdrawals, managed water 
uses, wastewater discharges, and flow/level management practices (e.g., 
some reservoirs release water from deeper bottom layers). As the 
Director, you must coordinate with appropriate Federal, State, or 
Tribal fish and wildlife management agencies to determine if any 
disruption of the natural thermal stratification resulting from the 
proposed increased withdrawal of cooling water does not adversely 
affect the management of fisheries. Specifically:
    (i) You must review and approve the Design and Construction 
Technology Plan required in Sec.  125.95(b)(4) to evaluate the 
suitability and feasibility of the design and construction technology 
and/or operational measures proposed to meet the performance standards 
in Sec.  125.94(b) or site-specific requirements developed pursuant to 
Sec.  125.94(a)(5).
    (ii) If the facility proposes restoration measures in accordance 
with Sec.  125.94(c), you must review and approve the Restoration Plan 
required under Sec.  125.95(b)(5) to determine whether the proposed 
measures, alone or in combination with design and construction 
technologies and/or operational measures, will meet the requirements 
under Sec.  125.94(c).
    (iii) In each reissued permit, you must include a condition in the 
permit requiring the facility to reduce impingement mortality and 
entrainment (or to increase fish production, if applicable) 
commensurate with the efficacy at the facility of the installed design 
and construction technologies,

[[Page 41692]]

operational measures, and/or restoration measures.
    (iv) If the facility implements design and construction 
technologies and/or operational measures and requests that compliance 
with the requirements in Sec.  125.94 be measured for the first permit 
term (or subsequent permit terms, if applicable) employing the 
Technology Installation and Operation Plan in accordance with Sec.  
125.95(b)(4)(ii), you must review the Technology Installation and 
Operation Plan to ensure it meets the requirements of Sec.  
125.95(b)(4)(ii). If the Technology Installation and Operation Plan 
meets the requirements of Sec.  125.95(b)(4)(ii), you must approve the 
Technology Installation and Operation Plan and require the facility to 
meet the terms of the plan including any revision to the plan that may 
be necessary if applicable performance standards or alternative site-
specific requirements are not being met. If the facility implements 
restoration measures and requests that compliance with the requirements 
in Sec.  125.94 be measured for the first permit term (or subsequent 
permit terms, if applicable) employing a Restoration Plan in accordance 
with Sec.  125.95(b)(5), you must review the Restoration Plan to ensure 
it meets the requirements of Sec.  125.95(b)(5). If the Restoration 
Plan meets the requirements of Sec.  125.95(b)(5), you must approve the 
plan and require the facility to meet the terms of the plan including 
any revision to the plan that may be necessary if applicable 
performance standards or site-specific requirements are not being met. 
In determining whether to approve a Technology Installation and 
Operation Plan or Restoration Plan, you must evaluate whether the 
design and construction technologies, operational measures, and/or 
restoration measures the facility has installed, or proposes to 
install, can reasonably be expected to meet the applicable performance 
standards in Sec.  125.94(b), restoration requirements in Sec.  
125.94(c)(2), and/or alternative site-specific requirements established 
pursuant to Sec.  125.94(a)(5), and whether the Technology Installation 
and Operation Plan and/or Restoration Plan complies with the applicable 
requirements of Sec.  125.95(b). In reviewing the Technology 
Installation and Operation Plan, you must approve any reasonable 
scheduling provisions that are designed to ensure that impacts to 
energy reliability and supply are minimized, in accordance with Sec.  
125.95(b)(4)(ii)(A). If the facility does not request that compliance 
with the requirements in Sec.  125.94 be measured employing a 
Technology Installation and Operation Plan and/or Restoration Plan, or 
the facility has not been in compliance with the terms of its current 
Technology Installation and Operation Plan and/or Restoration Plan 
during the preceding permit term, you must require the facility to 
comply with the applicable performance standards in Sec.  125.94(b), 
restoration requirement in Sec.  125.94(c)(2), and/or alternative site-
specific requirements developed pursuant to Sec.  125.94(a)(5). In 
considering a permit application, you must review the performance of 
the design and construction technologies, operational measures, and/or 
restoration measures implemented and require additional or different 
design and construction technologies, operational measures, and/or 
restoration measures, and/or improved operation and maintenance of 
existing technologies and measures, if needed to meet the applicable 
performance standards, restoration requirements, and/or alternative 
site-specific requirements.
    (v) You must review and approve the proposed Verification 
Monitoring Plan submitted under Sec.  125.95(b)(7) (for design and 
construction technologies) and/or monitoring provisions of the 
Restoration Plan submitted under Sec.  125.95(b)(5)(v) and require that 
the monitoring continue for a sufficient period of time to demonstrate 
whether the design and construction technology, operational measures, 
and/or restoration measures meet the applicable performance standards 
in Sec.  125.94(b), restoration requirements in 125.94(c)(2) and/or 
site-specific requirements established pursuant to Sec.  125.94(a)(5).
    (vi) If a facility requests requirements based on a site-specific 
determination of best technology available for minimizing adverse 
environmental impact, you must review the application materials 
submitted under Sec.  125.95(b)(6) and any other information you may 
have, including quantitative and qualitative benefits, that would be 
relevant to a determination of whether alternative requirements are 
appropriate for the facility. If a facility submits a study to support 
entrainment survival at the facility, you must review and approve the 
results of that study. If you determine that alternative requirements 
are appropriate, you must make a site-specific determination of best 
technology available for minimizing adverse environmental impact in 
accordance with Sec.  125.94(a)(5). You, as the Director, may request 
revisions to the information submitted by the facility in accordance 
with Sec.  125.95(b)(6) if it does not provide an adequate basis for 
you to make this determination. Any alternative site-specific 
requirements established based on new and/or existing design and 
construction technologies, operational measures, and/or restoration 
measures, must achieve an efficacy that is, in your judgement, as close 
as practicable to the applicable performance standards of Sec.  
125.94(b) without resulting in costs that are significantly greater 
than the costs considered by the Administrator for a like facility in 
establishing the applicable performance standards in Sec.  125.94(b), 
determined in accordance with Sec.  125.94(a)(5)(i)(A) through (F), or 
the benefits of complying with the applicable performance standards at 
the facility; and
    (vii) You must review the proposed methods for assessing success in 
meeting applicable performance standards and/or restoration 
requirements submitted by the facility under Sec.  125.95(b)(4)(ii)(D) 
and/or (b)(5)(v)(A), evaluate those and other available methods, and 
specify how assessment of success in meeting the performance standards 
and/or restoration requirements must be determined including the 
averaging period for determining the percent reduction in impingement 
mortality and entrainment and/or the production of fish and shellfish. 
Compliance for facilities who request that compliance be measured 
employing a Technology Installation and Operation Plan and/or 
Restoration Plan must be determined in accordance with Sec.  
125.98(b)(1)(iv).
    (2) Monitoring conditions. You must require the facility to perform 
monitoring in accordance with the Technology Installation and Operation 
Plan in Sec.  125.95(b)(4)(ii), the Restoration Plan required by Sec.  
125.95(b)(5), if applicable, and the Verification Monitoring Plan 
required by Sec.  125.95(b)(7). In determining any additional 
applicable monitoring requirements in accordance with Sec.  125.96, you 
must consider the monitoring facility's Verification Monitoring, 
Technology Installation and Operation, and/or Restoration Plans, as 
appropriate. You may modify the monitoring program based on changes in 
physical or biological conditions in the vicinity of the cooling water 
intake structure.
    (3) Recordkeeping and reporting. At a minimum, the permit must 
require the facility to report and keep records specified in Sec.  
125.97.
    (4) Design and construction technology approval--(i) For a facility 
that chooses to demonstrate that it has installed and properly operate 
and maintain a design and construction technology approved in 
accordance with Sec.  125.99, the Director must review

[[Page 41693]]

and approve the information submitted in the Technology Installation 
and Operation Plan in Sec.  125.95(b)(4)(ii) and determine if it meets 
the criteria in Sec.  125.99.
    (ii) If a person requests approval of a technology under Sec.  
125.99(b), the Director must review and approve the information 
submitted and determine its suitability for widespread use at 
facilities with similar site conditions in its jurisdiction with 
minimal study. As the Director, you must evaluate the adequacy of the 
technology when installed in accordance with the required design 
criteria and site conditions to consistently meet the performance 
standards in Sec.  125.94. You, as the Director, may only approve a 
technology following public notice and consideration of comment 
regarding such approval.
    (5) Bi-annual status report. You must specify monitoring data and 
other information to be included in a status report every two years. 
The other information may include operation and maintenance records, 
summaries of adaptive management activities, or any other information 
that is relevant to determining compliance with the terms of the 
facility's Technology Operation and Installation Plan and/or 
Restoration Plan.


Sec.  125.99  What are approved design and construction technologies?

    (a) The following technologies constitute approved design and 
construction technologies for purposes of Sec.  125.94(a)(4):
    (1) Submerged cylindrical wedge-wire screen technology, if you meet 
the following conditions:
    (i) Your cooling water intake structure is located in a freshwater 
river or stream;
    (ii) Your cooling water intake structure is situated such that 
sufficient ambient counter currents exist to promote cleaning of the 
screen face;
    (iii)Your maximum through-screen design intake velocity is 0.5 ft/s 
or less;
    (iv) The slot size is appropriate for the size of eggs, larvae, and 
juveniles of all fish and shellfish to be protected at the site; and
    (v) Your entire main condenser cooling water flow is directed 
through the technology. Small flows totaling less than 2 MGD for 
auxiliary plant cooling uses are excluded from this provision.
    (2) A technology that has been approved in accordance with the 
process described in paragraph (b) of this section.
    (b) You or any other interested person may submit a request to the 
Director that a technology be approved in accordance with the 
compliance alternative in Sec.  125.94(a)(4) after providing the public 
with notice and an opportunity to comment on the request for approval 
of the technology. If the Director approves the technology, it may be 
used by all facilities with similar site conditions under the 
Director's jurisdiction. Requests for approval of a technology must be 
submitted to the Director and include the following information:
    (1) A detailed description of the technology;
    (2) A list of design criteria for the technology and site 
characteristics and conditions that each facility must have in order to 
ensure that the technology can consistently meet the appropriate 
impingement mortality and entrainment performance standards in Sec.  
125.94(b); and
    (3) Information and data sufficient to demonstrate that facilities 
under the jurisdiction of the Director can meet the applicable 
impingement mortality and entrainment performance standards in Sec.  
125.94(b) if the applicable design criteria and site characteristics 
and conditions are present at the facility.

[FR Doc. 04-4130 Filed 7-8-04; 8:45 am]
BILLING CODE 6560-50-P