[Federal Register Volume 72, Number 130 (Monday, July 9, 2007)]
[Rules and Regulations]
[Pages 37107-37109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13202]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 125

[EPA-HQ-OW-2002-0049; FRL-8336-9]
RIN 2040-AD62


National Pollutant Discharge Elimination System--Suspension of 
Regulations Establishing Requirements for Cooling Water Intake 
Structures at Phase II Existing Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Suspension of final rule.

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SUMMARY: This action suspends the requirements for cooling water intake 
structures at Phase II existing facilities, pending further rulemaking. 
The Phase II regulation addressed existing power utilities that use a 
cooling water intake structure to withdraw cooling water from waters of 
the United States at a rate of 50 million gallons per day (MGD) or 
greater.

DATES: Effective July 9, 2007, 40 CFR 122.21(r)(1)(ii) and (5), 
125.90(a), (c) and (d) and 125.91 through 125.99 in Subpart J are 
suspended.

FOR FURTHER INFORMATION CONTACT: Janet Goodwin at (202) 566-1060, 
[email protected] or Deborah Nagle at (202) 564-1185, 
[email protected].

SUPPLEMENTARY INFORMATION: This action suspends the Phase II 
regulations with the exception of 40 CFR 125.90 (b), for cooling water 
intake structures.

I. General Information

A. Does This Action Apply to Me?

    Entities potentially affected by this action are classified under 
NAIC 22111.
    Affected categories and entities include:

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                Category                  Examples of regulated entities
------------------------------------------------------------------------
Electric Utilities......................  Electric Power Generating
                                           Facilities.
State governments.......................  Department of Environmental
                                           Protection.
------------------------------------------------------------------------

\This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities affected by this action. Other 
types of entities not listed in the table could also be affected. To 
determine whether your facility is affected by this action, you should 
carefully examine the definition in Sec.  125.91. If you have questions 
regarding the applicability of this action

[[Page 37108]]

to a particular entity, consult one of the persons listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

B. Table of Contents

I. Legal Authority
II. Background
III. This Action
IV. Statutory and Executive Order Reviews

I. Legal Authority

    EPA is issuing this suspension of the Phase II rule pursuant to 5 
U.S.C. 553(b) and (d), which authorizes administrative agencies to 
issue administrative suspensions immediately, where good cause 
justifies the action. Public comment on this suspension is unnecessary, 
as a decision issued by the U.S. Court of Appeals for the Second 
Circuit (Second Circuit), Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d 
Cir. 2007), precludes EPA from applying the Phase II rule unless and 
until EPA takes further action and today's suspension action merely 
carries out the effect of that decision on the Phase II rule. 
Additionally, the decision has resulted in uncertainty among the 
regulated community and permitting agencies about how to proceed with 
ongoing permitting proceedings given the uncertainty as to the status 
of the Phase II rule. This suspension provides a clear statement by the 
Agency that the existing Phase II requirements (with the exception of 
one provision unaffected by the Riverkeeper decision that reaches 
beyond the Phase II rule, addressed below) are suspended and are not 
legally applicable.

II. Background

    On February 16, 2004, EPA took final action on regulations 
governing cooling water intake structures at certain existing power 
producing facilities under section 316(b) of the Clean Water Act (Phase 
II rule). 69 FR 41576 (July 9, 2004). The final Phase II rule applies 
to existing facilities that are point sources that, 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 cooling water intake structures with a total design 
intake flow of 50 MGD or more to withdraw cooling water from waters of 
the United States; and use at least 25 percent of the water withdrawn 
exclusively for cooling purposes (see 40 CFR 125.91).
    Under the Phase II rule, EPA established performance standards for 
the reduction of impingement mortality and entrainment (see 40 CFR 
125.94). The performance standards consist of ranges of reductions in 
impingement mortality and/or entrainment. These performance standards 
were determined to reflect the Best Technology Available (BTA) for 
minimizing adverse environmental impacts at facilities covered by the 
Phase II rule.
    These regulations were challenged by industry and environmental 
stakeholders. On judicial review, the Second Circuit decision 
(Riverkeeper, Inc. v. EPA, 475 F.3d 83, (2d Cir., 2007)) remanded 
several provisions of the Phase II rule on various grounds. The 
provisions remanded to EPA include:
     EPA's determination of the BTA under section 316(b);
     The rule's performance standard ranges;
     The cost-cost and cost-benefit compliance alternatives;
     The Technology Installation and Operation Plan provision;
     The restoration provision; and
     The ``independent supplier'' provision.
    With several significant provisions of the Phase II rule affected 
by the decision, and with the need to provide timely direction to 
stakeholders about the continuing application of the Phase II rule, 
EPA's Assistant Administrator for Water issued a memorandum on March 
20, 2007, which announced EPA's intention to suspend the Phase II rule. 
This memorandum also discussed the anticipated issuance of this Federal 
Register suspension document.

III. This Action

    EPA is suspending Sec.  122.21(r)(1)(ii) and (5), and Part 125 
Subpart J with the exception of Sec.  125.90(b). This suspension is 
appropriate for several reasons.
    First, the Second Circuit's decision remanded key provisions of the 
Phase II requirements, including the determination of BTA and the 
performance standard ranges. This suspension responds to the Second 
Circuit's decision, while the Agency considers how to address the 
remanded issues.\1\
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    \1\ In the event that the court's decision is overturned after 
today's action, the Agency will take appropriate action in response.
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    In addition, the decision has a significant impact on the regulated 
community and permitting agencies. Both groups have sought Agency 
guidance on how to proceed to establish cooling water intake structure 
permit requirements for facilities subject to the Phase II rule in 
light of this decision. These stakeholders support suspending the Phase 
II requirements until the Agency has considered and resolved the issues 
raised by the Second Circuit's remand. Permit requirements for cooling 
water intake structures at Phase II facilities should be established on 
a case-by-case best professional judgment (BPJ) basis.
    Pursuant to 5 U.S.C. 553(b) and (d), EPA has determined for good 
cause that notice and public comment procedures are unnecessary. As 
noted, the Second Circuit's decision found key provisions of the Phase 
II rule to be inconsistent with the Clean Water Act and remanded most 
of the rule to the Agency. As a result, under the decision, EPA is 
precluded from applying the rule unless and until it takes further 
action to address the decision. Thus, today's action simply effectuates 
the legal status quo and public comment is therefore unnecessary.
    Notably, EPA by this action is not suspending 40 CFR 125.90(b). 
This retains the requirement that permitting authorities develop BPJ 
controls for existing facility cooling water intake structures that 
reflect the best technology available for minimizing adverse 
environmental impact. This provision directs permitting authorities to 
establish section 316(b) requirements on a BPJ basis for existing 
facilities not subject to categorical section 316(b) regulations. 
Establishing requirements in this manner is consistent with the CWA, 
case law, and the March 20, 2007 memorandum's direction to do so. Phase 
II facilities are not subject to categorical requirements under Subpart 
J while this suspension is in effect, and therefore this provision 
applies in lieu of those requirements. In addition, this provision 
applies to other types of existing facilities subject to section 316(b) 
requirements (e.g., existing facilities addressed in EPA's section 
316(b) Phase III rule). Moreover, this provision is an analogue to the 
provision in the 316(b) Phase I new facility rule providing for BPJ 
permitting where a facility is not subject to categorical requirements 
under Subpart I. See 40 CFR 125.80(c). Finally, this provision was not 
addressed, and is therefore not affected, by the Second Circuit's 
decision in Riverkeeper. Retaining it is therefore consistent with the 
approach EPA took in response to a judicial remand of its original 
section 316(b) regulations. See 44 FR 32854, 32956/1 (June 7, 1979) 
(withdrawing remanded regulations, but leaving intact a provision that 
had not been remanded).

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore not 
subject to review under

[[Page 37109]]

the Executive Order. This action does not impose any new requirements 
and does not impose costs or impacts on the regulated industry and thus 
does not meet the requirements for Executive Order 12866 review. This 
action is not subject to the Regulatory Flexibility Act (RFA) since 
this rule is exempt from notice and comment rulemaking requirements for 
good cause which is explained in section I. Additionally, this rule 
will not significantly or uniquely affect small governments. EPA has 
determined that this rule would not contain a Federal mandate that may 
result in expenditures of $100 million or more for State, local, and 
tribal governments, in the aggregate, or the private sector in any one 
year. Thus, this rule is not subject to sections 202, 203, or 205 of 
the Unfunded Mandates Reform Act of 1999 (Pub. L. 104-4). In addition, 
the EPA has determined that this action does not have Tribal 
implications, as specified in Executive Order 13175 (63 FR 67249, 
November 9, 2000). This action will not have federalism implications, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999) 
because it does not establish any requirements on State or local 
governments. This regulation is not subject to Executive Order 13045 
because it is not economically significant as defined under Executive 
Order 12866, and because the Agency does not have reason to believe the 
environmental health and safety risks addressed by this action present 
a disproportionate risk to children. This action is not subject to 
Executive Order 13211, ``Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001), because it is not a significant regulatory action 
under Executive Order 12866. This action does not involve technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. This action does not impose any new information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). The existing Information Collection requirements 
in this regulation were approved by the Office of Management and Budget 
under OMB control number 2040-0257.

List of Subjects

40 CFR Part 122

    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 125

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

    Dated: July 2, 2007.
Stephen L. Johnson,
Administrator.

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For the reasons set forth in the preamble, EPA is amending 40 CFR parts 
122 and 125 as follows:

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.


Sec.  122.21  [Amended]

0
2. Section 122.21 (r)(1)(ii) is suspended.

0
3. Section 122.21(r)(5) is suspended.

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

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4. 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.


Sec.  125.90  [Amended]

0
5. Section 125.90(a), (c) and (d) are suspended.

0
6. Sections 125.91 through 125.99 are suspended.

 [FR Doc. E7-13202 Filed 7-6-07; 8:45 am]
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